This case is one of several brought nationwide by States, counties, and nonprofit organizations challenging the Trump administration's revised public charge rule, which expands the types of programs that the federal government will consider in public charge determinations to now also include previously excluded health, nutrition, and housing programs. This case was filed in the fall of 2018, after the State Department made changes to its Foreign Affairs Manual (FAM) that revised the public charge rule. The State Department officially implemented the rule in the fall of 2019, shortly after DHS announced its own implementation of the rule. Although the DHS rule was quickly enjoined, the State Department's rule wasn't enjoined until July 29, 2020 in Make the Road New York v. Pompeo. On February 2, 2021, President Biden issued an Executive Order calling for government agencies to review actions related to the implementation of the public charge rule. While DHS formally abandoned the rule on March 9, 2021, the State Department's rule is still official policy, though still enjoined.

The Mayor and City Council of Baltimore Sue Over Changes to the Public Charge Rule in the Foreign Affairs Manual
On November 28, 2018, the Mayor and City Council of Baltimore, Maryland filed this lawsuit in the U.S. District Court for the District of Maryland. The City sued U.S. President Donald Trump, U.S. Secretary of State Michael Pompeo, and the U.S. Department of State (DOS) under the Administrative Procedure Act (APA) and Bivens for violations of Fifth Amendment equal protection. The plaintiffs, represented by the Democracy Forward Foundation and the City of Baltimore Department of Law, sought attorneys’ fees and declaratory and injunctive relief prohibiting defendants from enforcing January 2018 changes to the State Department’s Foreign Affairs Manual. The changes were to instructions to consular officers on how to determine the likelihood a visa applicant would become a public charge if admitted to the United States. The City alleged that the increase in public benefit listed in the new definition would, in effect, decrease the number of immigrants eligible to apply for visas. The changes were made without providing the public legally required notice, explanation, and opportunity for comment. The case was assigned to Judge Ellen Hollander.

The changes to the FAM increased the types of programs that the federal government would consider in public charge determinations to now also include previously excluded health, nutrition, and housing programs. The Immigration and Nationality Act (INA) provides that if a consular officer finds that a person seeking a visa is likely to become a public charge, that person is “inadmissible.” Thus, an immigrant who uses non-cash benefits such as food stamps or Medicaid may be found more likely to be a public charge and inadmissible for purposes of a visa. The plaintiffs asserted that the effect of this Rule would be to force immigrant families to choose between using these benefits or risk failing to gain entry to the U.S.

Defendants Move to Dismiss
The defendants moved to dismiss the complaint on February 25, 2019. They argued that the City of Baltimore lacked subject matter jurisdiction and failed to state a claim upon which relief could be granted. Moreover, even if the City overcame these hurdles, the defendants argued that it still failed to plausibly allege that the FAM changes violated either the APA or equal protection.

On September 20, 2019, Judge Hollander denied the motion. She held that the City was affected by the changes and could sue on behalf of the immigrants affected. She also found that sufficient allegations had been provided to sue President Trump under the equal protection claim. Finally, she upheld the APA claim on the grounds that changes to the FAM are subject to notice and comment, and that there could be grounds for an injunction.

The Rule is Officially Implemented by the State Department
On October 11, 2019, the Department of Homeland Security's similar public charge rule (DHS Rule) began to be enjoined by courts around the country. That same day, DOS formalized the changes to the FAM by implementing the Interim Final Rule. This rule mirrored the DHS Rule, explicitly expanding the definition of "public charge" for the purposes of granting visas.

The Fight Over Discovery
On October 20, defendants filed their answer to the complaint, and a Scheduling Order for discovery was issued on November 5.

On top of requesting documents from DOS, the City requested interrogatories of Secretary Pompeo and President Trump. In response, the defendants moved to amend the Scheduling Order on November 18, arguing that no discovery was needed beyond production of the administrative record.

What followed was a "flurry of submissions," and on December 19, Judge Hollander granted the motion in part. She vacated the previous Scheduling Order and denied discovery beyond the administrative record on the equal protection claim, holding that the plaintiffs were not entitled to discovery because this was an immigration issue and that the administrative record would suffice. However, she denied the motion for the APA claims, finding that the plaintiffs could proceed with the administrative record and pursue extra-record discovery afterward if needed. 429 F.Supp.3d 128.

On February 7, 2020, the City supplemented its complaint to include the Interim Final Rule.

Parties Move for Summary Judgment
On May 15, the plaintiffs moved for summary judgment.

On June 12, the defendants moved to dismiss for lack of subject matter jurisdiction and also filed a cross motion for summary judgment.

The FAM Changes and the Interim Final Rule are Enjoined
On July 29, the FAM changes and the Interim Final Rule were enjoined nationwide by the District Court for the Southern District of New York in Make the Road New York v. Pompeo. 475 F.Supp.3d 232. The DHS Rule was similarly enjoined in State of New York v. DHS. 2020 WL 4347264.

Subsequently, on August 6, Judge Hollander ordered the parties to explain to the court the import of these cases.

Changes with the Biden Administration
On February 2, 2021, President Biden issued an Executive Order calling for government agencies to review actions related to the implementation of the public charge rule.

On February 19, defendants moved to stay proceedings while the new administration reevaluated the rule. The court granted the motion that same day, ordering a status report due by May 24.

On March 9, DHS formally abandoned the rule. DOS, however, did not.

As of March 14, 2021, the FAM revisions and Interim Final Rule are enjoined nationwide. The court has yet to rule on summary judgment, and proceedings are currently on hold until May 24, 2021.

Ashton Dubey - 10/02/2019
Jack Kanarek - 03/14/2021


compress summary