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Mayor and City Council of Baltimore v. Trump

United States District Court, D. Maryland

December 19, 2019

MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander, United States District Judge.

         This Memorandum Opinion resolves a motion (ECF 75) to modify the Court's Scheduling Order (ECF 69), issued in connection with a suit challenging amendments to the Department of State's Foreign Affairs Manual (the "FAM" or "Manual"). The amendments at issue concern the criteria that consular officers use to determine whether a visa applicant is likely to be a "public charge" and thus inadmissible for admission to the United States.

         The suit was filed by the Mayor and City Council of Baltimore (the "City") against Donald J. Trump, in his official capacity as President of the United States; the United States Department of State ("State Department"); and Michael R. Pompeo, in his official capacity as United States Secretary of State. Plaintiff seeks to enjoin defendants from using the revised Manual to process immigrant visa applications. ECF 1 ("Complaint"). The Complaint contains four counts, three of which are under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. ("APA"). Count One alleges that the FAM revisions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in violation of 5 U.S.C. § 706(2)(A). ECF 1, ¶¶ 171-78. In Count Two, the City asserts that the changes to the Manual have an impermissible retroactive effect, in violation of 5 U.S.C. § 706(2)(A). ECF 1, ¶¶ 179-86. Count Three alleges that the FAM was amended without notice and comment, as required by 5 U.S.C. § 706(2)(D), ECF 1, ¶¶ 183-86. In Count Four, the City lodges claims under the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution, asserting that the changes to the FAM discriminate on the basis of race, national origin, nationality, income, and receipt of public benefits. Id. ¶¶ 187-97.

         Defendants (sometimes referred to collectively as the "government") moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, and Fed.R.Civ.P. 12(b)(6), for failure to state a claim. ECF 17. In a Memorandum Opinion (ECF 59) and Order (ECF 60) of September 20, 2019, 1 denied the government's motion.

         Defendants subsequently answered the suit. ECF 68. Thereafter, the Court issued a Scheduling Order to facilitate discovery. ECF 69.[1] Pursuant to the Scheduling Order, the City has served defendants with requests for production of documents. In addition, it issued two sets of interrogatories. One was directed to President Trump and the other was directed to the State Department and Secretary Pompeo.

         In response, defendants filed a "Motion To Modify Scheduling Order" (ECF 75), supported by a memorandum. ECF 75-1 (collectively, the "Motion"). They argue that no discovery is needed beyond production of the administrative record. And, defendants ask the Court to stay discovery pending the resolution of the Motion. The City opposes the Motion. ECF 81 ("Opposition). Ten exhibits were appended to the Opposition. ECF 81-2 to ECF 81-11. Defendants have replied. ECF 82. A flurry of submissions followed. See ECF 83; ECF 85; ECF 86.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall vacate the Scheduling Order (ECF 69), and I shall grant the Motion (ECF 75) in part and deny it in part. In particular, I shall grant the Motion as to plaintiffs equal protection claims and deny the Motion as to plaintiffs APA claims. Following review of the administrative record, plaintiff may seek leave of court to conduct discovery beyond the administrative record if such a request is warranted.

         I. Factual and Procedural Summary[2]

         A. Factual Background

         For well over a century, federal law has barred "any person unable to take care of himself or herself without becoming a public charge" from entering the United States. Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214 (1882). Today, this prohibition is codified in the Immigration and; Nationality Act, 8 U.S.C. §§ 1101 et seq. ("INA"). Under the INA, "[a]ny alien who ... is likely at any time to become a public charge is inadmissible." Id. § 1182(a)(4)(A). The term "public charge" is not defined, however. Instead, the INA directs that, "at a minimum," the government must "consider the alien's-(I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills." Id. § 1182(a)(4)(B)(i). The INA also permits the government to consider an "Affidavit of Support" when making a public charge determination. Id. § 1182(a)(4)(B)(ii).

         The Department of Homeland Security ("DHS") and the State Department both make public charge determinations, depending on the location of the foreign national. See ECF 1, ¶¶ 20; 20 n.12. Visa applications submitted by aliens located outside the United States are processed at a State Department consulate in the alien's home country. Id. ¶ 20. During "consular processing," the applicant must submit various documents, undergo a medical screening, and be interviewed by a consular officer. Id. ¶ 21. The applicant bears the burden of proving "to the satisfaction of the consular officer" that he or she is eligible for a visa. 8 U.S.C. § 1361. No visa "shall be issued to an alien" if "it appears to the consular officer" from the alien's application "that such alien is ineligible to receive a visa" or if "the consular officer knows or has reason to believe" that the alien is ineligible. Id. § 1201(g).

         The State Department's Manual contains detailed instructions that consular officers are to follow when assessing whether a visa applicant is inadmissible as a public charge. Prior to January 3, 2018, the FAM defined "public charge" as a non-citizen "likely to become primarily dependent on the U.S. Government for subsistence." ECF 17-2 (9 FAM § 302.8 (2017)) at 3. This occurred either from "[r]eceipt of public cash assistance for income maintenance" or "[institutionalization for long-term care at U.S. Government expense." Id. at 3. Notably, the Manual expressly excluded from the public charge assessment the visa applicant's past, current, or future receipt of non-cash benefits. See Id. at 4. Further, the Manual limited the relevance of benefits used by the visa applicant's family members. See Id. at 10. The FAM also instructed that an Affidavit of Support "should normally be considered sufficient" to satisfy the public charge requirement, and it cautioned against finding a visa applicant inadmissible simply because his or her sponsor received public benefits. Id. at 7, 11.

         On January 3, 2018, the State Department, allegedly without prior notice, issued amendments to the portions of the FAM dealing with public charge determinations. ECF 1, ¶¶ 92, 94. The revisions work three significant changes to the way in which consular officers conduct public charge determinations. First, the Manual now directs consular officers to consider a visa applicant's receipt of non-cash benefits as part of the public charge determination. ECF 1-1 ("Redlined Version of 2018 FAM") at 5. Second, the FAM now instructs that the receipt of noncash benefits by the visa applicant's family members is "a heavily negative factor" in the analysis. Id. at 10. Third, whereas the FAM once taught that an Affidavit of Support from the applicant's sponsor was "normally . . . sufficient" to satisfy the public charge inquiry, the revised Manual diminishes the Affidavit's weight, instructing that it is merely one factor among many that the consular officer should consider. Id. at 7.

         As noted, the City alleges that the State Department acted in an arbitrary and capricious manner and that the FAM revisions are impermissibly retroactive. ECF 1, ¶¶ 171-82. The City also asserts that the FAM changes contravene the APA's notice-and-comment requirement. Id. ¶¶ 183-86. Further, the City alleges that the State Department revised the FAM at the direction of President Trump and senior Executive Branch officials, who harbor "animus towards immigrants, particularly those from Latin American, Asian, and African countries, and those who accept public benefits." Id. ¶ 74. To make its case, the City relies on multiple statements by President Trump; Stephen Miller, a senior advisor to the President; and then-Senator Jefferson B. Sessions III. See Id. ¶¶ 71-73. The City connects the President to the FAM amendments by pointing to a draft executive order directing the State Department to amend the FAM, which was leaked to the public in January 2017, but which was never issued. See Id. ¶¶ 76-77.

         According to the City, the amendments to the FAM's public charge provisions impose financial costs on the City and disrupt its social services. Further, the City contends that the amendments harm the health and well-being of Baltimore's immigrant communities. Thus, it asserts that "Baltimore as a whole will suffer" if defendants are not enjoined from using the revised Manual. Id. ¶ 170.

         B. Procedural Background

         Plaintiff filed suit on November 28, 2018. ECF 1. The government, on February 25, 2019, moved to dismiss the Complaint for lack of jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6), advancing a "smorgasbord of arguments." ECF 59 at 41.' Specifically, defendants asserted that the City lacked standing to pursue the suit and, in particular, to sue the President (ECF 17 at 25-32); the FAM amendments were not reviewable under the APA (see Id. at 33-34); the FAM revisions were not a reviewable "final agency action" (id. at 36-41); the FAM revisions were exempt from the APA's notice-and-comment requirement (id. at 41-42); and, the FAM changes did not have retroactive effect. Id. at 42-44. The government also moved to dismiss plaintiffs constitutional claim, arguing that the City had not alleged sufficient facts to state a plausible equal protection violation. See Id. at 44-49. The City opposed that motion (ECF 25), and defendants replied. ECF 56. In addition, the Court received three amicus briefs from a total of thirty-two amici, all in support of the City. ECF 49; ECF 51; ECF 53.

         As noted, 1 denied defendants' motion to dismiss in a Memorandum Opinion and Order of September 20, 2019. ECF 59; ECF 60. I determined that the City satisfied the requirements of Article III standing to challenge the Manual's amendments and to sue President Trump in his official capacity. ECF 59 at 36, 38. As for the City's APA claims, I concluded that the FAM change was reviewable, and that the City had plausibly alleged that the revisions were impermissibly retroactive (id. at 59) and procedurally invalid. Id. at 68. In addition, I concluded that the City's allegations were sufficient to state plausible equal protection claims. 'Id. at 79.

         Of import here, the Court observed that there is "little daylight" between this case and Trump v. Hawaii, ___ U.S. ___, 138 S.Ct. 2392 (2018), and therefore "the Court is limited to the 'circumscribed judicial inquiry,' asking only if the FAM changes 'can reasonably be understood to result from a justification independent of unconstitutional grounds.'" ECF 59 at 77 (quoting Hawaii, 138 S.Ct. at 2420). But, as I explained, Hawaii "d[id] not foreclose plaintiffs equal protection claim." Id. at 77. I stated, id:

Perhaps plaintiff will unearth evidence during discovery demonstrating that defendants were driven by nothing more than "a bare... desire to harm a politically unpopular group." Moreno, 413 U.S. at 534. Or, perhaps defendants will produce evidence that the revisions to the FAM have a legitimate basis. But, at this juncture, there is no evidence as to why defendants amended the Manual.

         On October 10, 2019, defendants filed a "Notice Of Regulatory Action," advising that the State Department had published an interim final rule amending its regulation governing the application of the public charge provision. ECF 64 ("Notice"); see 84 Fed. Reg. 54996 (Oct. 11, 2019)[3] In the Notice, defendants indicated that the amendments would take effect on October 15, 2019, at which point the State Department would also issue new. revisions to the FAM that would supersede the January 2018 guidance. ECF 64. However, the publication of a new edition of the FAM "has been delayed," and the January 2018 guidance remains in effect. ECF 75-1 at 8.

         Defendants filed an answer to the Complaint on October 20, 2019. ECF 68 (the "Answer"). Thereafter, on November 5, 2019, the Court issued a Scheduling Order, pursuant to Local Rule 103.9. ECF 69. The Scheduling Order contemplates both fact and expert discovery. It authorizes ten hours of depositions per side for fact witnesses. Id. at 3. But, it provides that either party may seek a modification of the discovery deadlines included in the Scheduling Order by filing a motion with the Court on or before November 19, 2019. Id. at 1.

         On November 15, 2019, prior to the modification deadline, the City served requests for production of documents on defendants. See ECF 81-1 ("Plaintiffs First Set Of Requests For Production To All Defendants"). The City also propounded two sets of interrogatories, one directed to President Trump and the other directed to the State Department and Secretary Pompeo. ECF 81-2 ("Plaintiffs First Set Of Interrogatories To President Donald J. Trump"); ECF 81-3 ("Plaintiffs First Set Of Interrogatories To Secretary Michael R. Pompeo And The State Department").

         On November 18, 2019, the government filed the Motion, seeking to limit discovery to the production of the administrative record and to stay further discovery in the interim. ECF 75. The City responded to the Motion (ECF 81), and defendants replied. ECF 82.

         The parties also submitted a "Joint Status Report, Including Plaintiffs Request To Modify Scheduling Order." ECF 80 ("Status Report"). In the Status Report, the parties acknowledged that they "disagree[d] on the scope and manner of discovery[.]" Id. at 1. The City asked the Court to shift several deadlines and requested an increase in deposition hours, to a total of fifty hours per side for fact witnesses. Id. at 4. In contrast, defendants reaffirmed their belief that "the Court's review of this action ...


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