Faith Int'l Adoptions v. Pompeo
| Decision Date | 30 October 2018 |
| Docket Number | CASE NO. 2:18-cv-00731-RBL |
| Parties | FAITH INTERNATIONAL ADOPTIONS, et al., Plaintiff, v. Michael R. POMPEO, et al., Defendant. |
| Court | U.S. District Court — Western District of Washington |
Adam Nolan Tabor, Robert M. McKenna, Orrick Herrington & Sutcliffe LLP (Sea), Seattle, WA, for Plaintiff.
Anjali Motgi, US Department of Justice (Civil - 20 Mass), Washington, DC 20530, Sarah K. Morehead, US Attorney's Office (Sea), Seattle, WA, for Defendant.
Theodore R. Coley, pro se.
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
THIS MATTER is before the Court on Plaintiffs Faith International Adoptions, Amazing Grace Adoptions, and Adopt Abroad Incorporated's (collectively "Faith") motion for preliminary injunction. Dkt. # 20. Since 2008, all three Plaintiffs have been accredited to help families navigate the legal and logistical requirements for international adoption. Plaintiffs have renewed their accreditation multiple times and applied in 2017 to do so again. However, the Council on Accreditation (COA), the entity tasked with processing accreditation applications, deferred its final decision past March 31, 2018, the expiration date of Plaintiffs' most recent accreditation. When COA informed State of this, State instructed COA that it could not continue to process the applications after expiration and that Plaintiffs' renewals would effectively be refused. COA reluctantly complied with this directive, causing Plaintiffs to lose accreditation and face the prospect of re-applying as new applicants, a process that could take over a year to complete. Instead of taking this route, Plaintiffs now seek an injunction suspending the effect of State's directive.
Faith argues that it is likely to succeed in its claims because State's directive was unlawful on several grounds. First, Faith contends that State's directive COA constituted an arbitrary and capricious shift in policy in violation of the Administrative Procedure Act. Second, Faith also argues that the directive amounts to a substantive rule that required notice-and-comment procedures, which State did not implement. Finally, Faith asserts that State's directive violated the Intercountry Adoption Act (IAA) because State did not follow the required procedures for cancelling, debarring, or refusing to renew an agency's accreditation.
Boiled down, State's response is that it did nothing at all. State contends that it was COA that refused to renew Faith, and that State's directive was not a "final agency action" under the APA because it merely served to clarify existing regulations. State also denies that it ever had knowledge of COA's practice of deferring some renewal decisions past the date of expiration, so there was no arbitrary and capricious policy change. Finally, State argues that its directive did not violate the IAA because State's interpretation of the regulations merely tracked the plain text.
Faith also contends that it is likely to suffer irreparable harm if the Court does not grant an injunction because, without accreditation, Faith will continue to lose money and may soon face bankruptcy. Furthermore, Faith argues that the equities tip sharply in its favor and an injunction would be in the public interest. State contests these assertions largely on the basis that Faith declined the opportunity to re-apply as a new applicant and has not demonstrated that its loss of accreditation has had an appreciable effect on adoptees or prospective families.
This is a time sensitive matter. At the end of the year, COA will cease to operate as an accrediting entity, rendering it incapable of reaching a final decision on Plaintiffs' renewal applications. Whether an injunction is granted or not, this case will soon become moot either because COA will have finished processing the renewal applications or will lack sufficient time to do so.
The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption standardized adoptions between signatory nations. Congress passed the Intercountry Adoption Act of 2000 to implement those standards domestically. 42 U.S.C. §§ 14901 - 954. The IAA imposes requirements and grants authority to several different parties, including the U.S. Department of State, private "accrediting entities" (AEs), and adoption agencies themselves.
State has some direct obligations under the IAA. For example, State is required to monitor the performance of AEs and may suspend or cancel an AE's designation for noncompliance. § 14924(a). State is also charged with promulgating regulations prescribing rules that AEs must follow when determining whether an agency should be accredited. See § 14923. State may also suspend, cancel, or debar an adoption agency itself if it is substantially out of compliance with applicable standards. § 14924(b) & (c).
However, the IAA also grants some authority to AEs. Once State has entered into an agreement with an AE, the AE is charged with processing the accreditation of agencies, overseeing their compliance, and taking adverse action when an agency is out of compliance. § 14922(a) & (b). An agency may appeal to have an adverse action set aside by the AE or petition a U.S. District Court for such relief. § 14922(c).
Pursuant to its authority under § 14923, State has promulgated regulations governing the activities of AEs and adoption agencies. See 22. C.F.R. § 96. Section 96.63, which governs renewal of an agency's accreditation, is the main focus of this case. The relevant portions read as follows:
Faith International Adoptions, Amazing Grace Adoptions, and Adopt Abroad Incorporated all received Hague accreditation in 2008. Motion, Dkt. # 20, at 3. All three agencies had their accreditation renewed at least once after that time, and were due to have their accreditation expire on March 31, 2018. Id. at 3-4. All three also applied in 2017 to have their accreditation renewed. Id. at 4.
For years, the sole entity providing accreditation services under the IAA was COA. Id. at 1. However, in August of 2017, State designated a second AE: the Intercountry Adoption Accreditation and Maintenance Entity, Inc. (IAAME). Id. at 4. Shortly thereafter, COA announced that it planned to withdraw, leaving IAAME as the only AE. Id. The parties organized a transitional arrangement under which IAAME would handle all new applications in 2018, as well as renewal applications for agencies "seeking renewal in 2019 or later."1 Id. COA, however, would continue to process renewal applications filed before the start of 2018.2 Id. By the end of 2018, COA will cease operations and IAAME will take over as the sole AE. Id.
Because the Plaintiffs applied for renewal in 2018, their applications were handled by COA. Id. On March 28, 2018, COA emailed State to update it on the status of these applications. Olson Decl., Dkt. # 51, Ex. L, at 5-6. COA informed State that it had requested additional information from the agencies and had deferred its final decision. Id. Consequently, COA would likely not grant or refuse Plaintiffs' renewals before the agencies' current accreditation expired. Id.
After being prodded for a reply, State responded to COA's email on March 30 and informed it that, "[a]fter March 31, COA may no longer continue to review or make any decision in relation to [Faith's] accreditation application." Id. at 4. The email also stated that "any corrective action would be moot as of the expiration date." Id. COA responded with confusion about State's directive and concern for its clients, stating that COA had always continued processing an agency's renewal if a decision could not be reached before accreditation expired. Id. at 2. State replied by reiterating its decision and further explaining its interpretation of the regulations:
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J.L. v. Cissna, Case No. 18-cv-04914-NC
...requirement is interpretive and therefore not a final agency action "puts the cart before the horse." See Faith Int'l Adoptions v. Pompeo , 345 F.Supp.3d 1314, 1325 (W.D. Wash. 2018). "To allow [the] State to avoid review of its action by simply claiming that its interpretation was correct ......