Nat'l Council for Adoption v. Blinken

• Decision Date: 09 July 2021
• Docket Number: No. 20-5158,20-5158
• Citation: 4 F.4th 106
• Parties: NATIONAL COUNCIL FOR ADOPTION, Appellant v. Antony J. BLINKEN, in His Official Capacity as U.S. Secretary of State, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

4 F.4th 106

NATIONAL COUNCIL FOR ADOPTION, Appellant

v.Antony J. BLINKEN, in His Official Capacity as U.S. Secretary of State, et al., Appellees

No. 20-5158

United States Court of Appeals, District of Columbia Circuit.

Argued March 18, 2021

Decided July 9, 2021

Daniel J. Hay argued the cause for appellant. With him on the briefs were Kwaku A. Akowuah and C. Frederick Beckner III.

William R. Peterson and Catherine L. Eschbach were on the brief for amicus curiae Center for Adoption Policy in support of appellant.

Kannon K. Shanmugam, Aimee W. Brown, and William T. Marks were on the brief for amicus curiae the Academy of Adoption & Assisted Reproduction Attorneys, Inc. in support of appellant.

Benjamin J. Beaton and David Norris were on the brief for amicus curiae Richard Klarberg in support of appellant.

Caroline D. Lopez, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Sharon Swingle, Attorney.

Before: Pillard and Walker, Circuit Judges, and Randolph, Senior Circuit Judge.

Walker, Circuit Judge:

Members of the National Council For Adoption help prospective parents adopt children. In 2018, the Department of State issued guidance barring adoption agencies from referring certain children to certain parents.

When the Council challenged that guidance, the district court dismissed its suit for lack of subject matter jurisdiction after concluding that the Council lacked standing. We reverse that decision.

We also conclude that the guidance is a legislative rule. And because the Department of State issued it without the required notice-and-comment process, the guidance must be vacated.

I

A

In February 2018, the Department of State posted to its website a list of frequently asked questions about international-adoption fee schedules.¹ In something of a postscript, one of the answers mentioned that "a soft referral is not [an] acceptable practice under the regulations and may lead to adverse action." J.A. 57 (cleaned up).

This sentence sparked confusion among members of the adoption community because many of them had never heard the phrase "soft referral." See, e.g. , J.A. 145 ("We are unfamiliar with the term ‘soft referral.’ "); J.A. 149 ("Soft referrals ... is a term we had never heard of prior to the recent discussions.") (cleaned up).

After receiving numerous questions about what constituted a "soft referral," State updated its website in March 2018 with a page titled "Adoption Notice: Guidance on Soft Referrals." J.A. 58. The webpage defined "soft referrals" as two categories of adoption practices.

The first is the act of "informing [prospective adoptive parents] about a specific child before the country of origin has determined that the child is eligible for intercountry adoption ..., even if the [agency] does not communicate the name of the child to the [parents]." J.A. 58.

The second — and "more common" — category is "the act of matching a child to a family before ... approval of the prospective adoptive parents’ (PAP) home study and associated background checks." J.A. 58-59 (emphasis omitted). According to this March Notice, adoption service providers violate this second prohibition by "matching" an eligible child to a prospective parent "who does not have an approved home study, in a manner that removes that child from consideration by other families that the Central or competent authority may wish to consider. This is sometimes referred to as ‘holding’ the child." J.A. 59.

Questions continued pouring in. So in May 2018, State again updated its website with "FAQ on Soft Referrals." J.A. 62-67. It said an adoption service provider may sometimes informally match a child to prospective parents before parents complete their home study. But the provider cannot "hold" the child's file for those prospective parents in a way that (1) prevents other providers from referring the child to other parents, (2) discourages other parents from adopting the child, or (3) prevents authorities from considering alternative parents. J.A. 64. The new webpage also claimed the "soft referral guidance clarifies existing policies based on current regulations that have been in place since 2006." J.A. 62 (emphasis omitted).

We refer to the February "FAQ," March "Notice," and May "FAQ" as the Guidance.

B

After State issued the Guidance, the National Council For Adoption sued State, arguing that the Guidance violated the Administrative Procedure Act. Specifically, the Council said the Guidance required notice and comment and was otherwise arbitrary and capricious. After a delay outside the parties’ control, the Council proposed setting briefing deadlines, even though State had not yet answered or otherwise responded to the complaint. The district court agreed.

State then moved to dismiss, arguing, among other things, that the Council lacked associational standing because its complaint failed to identify a member of the Council injured by the Guidance.

In the facts section of the motion, State explained that the Guidance only prohibited two specific types of soft referrals: (1) matching a non-eligible child to prospective parents or (2) matching a child to parents who haven't completed a home study in a way that prevents the child from being considered by other prospective parents (i.e. , holding). Other types of soft referrals, such as matching a child to parents who haven't completed a home study without restricting the child from consideration by other prospective parents, were permissible.

The Council opposed the motion to dismiss. It included declarations from some of its members to allege that it had standing. The Council argued, among other things, that the declarations alleged injuries for the Council's members because they stopped conducting soft referrals after the Guidance.

In reply, State claimed the declarations were insufficient because they only generally referred to members "matching" children to parents who had not completed home studies, which the Guidance permitted. State said the declarations did not specify that any member participated in the two types of prohibited soft referrals.

While the motion to dismiss was pending, both parties cross-moved for summary judgment in accordance with the court's deadlines. In addition to arguing the merits, State reiterated — in the introduction to both its own motion for summary judgment and its response to the Council's — its position that the Council lacked standing. Then, in its reply brief, to further prove standing, the Council filed two supplemental declarations.

State then moved to strike the supplemental declarations, arguing that the Council should have filed these supplemental declarations sooner. State alternatively argued that the supplemental declarations still failed to establish standing. The Council filed a brief opposing the motion to strike and arguing that State was not prejudiced by the filing of the supplemental declarations. State didn't file a reply.

The district court addressed these motions — the motion to dismiss, the cross-motions for summary judgment, and the motion to strike — all at once. National Council for Adoption v. Pompeo , 460 F. Supp. 3d 37 (D.D.C. 2020). First, the court agreed with State that the Guidance prohibited only two types of soft referrals: (1) matching parents to a child not yet eligible for adoption and (2) "holding" an adoptable child for parents who have not yet completed their home studies by preventing other potential parents from connecting with the child. Id. at 43-44. The court also agreed with State that the Council's motion-to-dismiss declarations mischaracterized the Guidance as prohibiting all soft referrals and did not specify that any members engaged in the two prohibited types. Id. at 44. So the court concluded that the Council lacked standing and granted the motion to dismiss.²

Second, the district court struck the supplemental declarations as untimely. Id. at 50.

Third, the court denied both parties’ summary judgment motions as moot. Id. at 50-51.

We have jurisdiction over the Council's appeal. 28 U.S.C. § 1291.

II

First, we explain why the Council has associational standing.³ Then we discuss why we will exercise our discretion to decide the merits. Last, we hold that the Guidance is a legislative rule, which requires notice and comment.

A

An association has standing if at least one member can establish injury, causation, and redressability. Natural Resources Defense Council v. EPA , 489 F.3d 1364, 1370 (D.C. Cir. 2007). The association must also show that "the interests it seeks to protect are germane to its purposes, and that neither the claim asserted nor the relief requested requires that an individual member participate in the lawsuit." Id.

The court at times "may allow [plaintiffs] to support their standing in their reply brief, in affidavits submitted along with the reply brief, through citations to the existing record at oral argument, or through additional briefing or affidavits submitted to the court after oral argument." American Library Association v. FCC , 401 F.3d 489, 494 (D.C. Cir. 2005) ; cf. Feldman v. FDIC , 879 F.3d 347, 351 (D.C. Cir. 2018) (a district court "must give [plaintiffs] ample opportunity to secure and present evidence relevant to the existence of jurisdiction") (cleaned up). For example, when "the parties reasonably, but mistakenly, believed" that they "sufficiently demonstrated standing" or when they "reasonably assumed that their standing was self-evident," "good cause" may exist to excuse delayed declarations or affidavits. Twin Rivers Paper Co. LLC v. SEC , 934 F.3d 607, 614 (D.C. Cir. 2019) (cleaned up).

Two circuit precedents help us decide whether to allow supplemental declarations about standing. In one, we accepted them. In the other, we didn't.

In Communities Against Runway Expansion, Inc. v. FAA , this court found standing based on supplemental declarations filed with the petitioners’ court of...