Nat'l Council for Adoption v. Pompeo
| Decision Date | 19 May 2020 |
| Docket Number | Civil No. 18-2704 (RCL) |
| Citation | 460 F.Supp.3d 37 |
| Parties | NATIONAL COUNCIL FOR ADOPTION, Plaintiff, v. Michael R. POMPEO, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
C. Frederick Beckner, III, Daniel J. Hay, Kwaku A Akowuah, Sidley Austin LLP, Washington, DC, for Plaintiff.
Anjali Motgi, Keri Lane Berman, U.S. Department of Justice, Washington, DC, for Defendants.
Plaintiff National Council for Adoption ("NCFA") brings this action against defendants alleging violations of the Administrative Procedure Act. At issue are a series of written statements styled as guidance documents pertaining to soft referrals (the "soft referral guidance" or "SRG").
Before the Court are defendants' motion to dismiss, motion for summary judgment, and motion to strike. ECF Nos. 21, 42, 60. Also before the Court is plaintiff's motion for summary judgment. ECF No. 43. For the reasons that follow, the Court will hold that plaintiff does not have standing to bring this suit. Accordingly, the Court will grant defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court will also grant defendants' motion to strike and deny as moot both motions for summary judgment.
Congress enacted the Intercountry Adoption Act of 2000, 42 U.S.C. § 14901 et seq. , ("IAA") to implement the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the "Convention" or "Hague Convention"). The IAA's purpose is to "protect the rights of, and prevent abuses against, children, birth families, and adoptive parents involved in adoptions (or prospective adoptions) subject to the Convention, and to ensure that such adoptions are in the children's best interests[,] and to improve the ability of the Federal Government to assist United States citizens seeking to adopt children from abroad and residents of other countries party to the Convention seeking to adopt children from the United States." Id. §§ 14901(b)(2), (b)(3).
To facilitate Hague Convention adoptions in the United States, the IAA and its implementing regulations, 22 C.F.R. § 96.1 et seq. , require adoption service providers ("ASP") to be accredited in accordance with the statute. 42 U.S.C. § 14921(a). Under the IAA, accrediting entities, which are designated by the State Department, process prospective ASPs' applications for accreditation and renewals of accreditation, and monitor their compliance with accreditation standards. 42 U.S.C. § 14922(a) ; 22 C.F.R. § 96.12. ASPs cannot provide adoption services (as defined by the IAA), including identifying a child for adoption and arranging the adoption of children by prospective adoptive parents, until they are accredited. This process can sometimes include "matching" a child with prospective adoptive parents. But the relevant governmental agency or entity of the child's country of origin (known as the Central Authority or competent authority) bears the ultimate responsibility for making a "referral" (a formal determination that a particular child should be placed with a particular family for adoption). The adoption community has coined the term "soft referral" to refer to a "matching" process by an ASP that is not an official referral.
The IAA authorizes the State Department to develop standards and compliance obligations that ASPs must meet in order to obtain and maintain accreditation. See 22 C.F.R. Part 96 Subpart F. Among those obligations, ASPs must make sure that they "provide[ ] adoption services ethically and in accordance with the [Hague] Convention's principles of: (1) [e]nsuring that intercountry adoptions take place in the best interests of children; and (2) [p]reventing the abduction, exploitation, sale, or trafficking of children." 22 C.F.R. § 96.35(a).
The IAA's implementing regulations also include specific guidelines for cases in which an adopted child is immigrating to the United States. See 22 C.F.R. §§ 96.47 – 96.52 ("incoming" case standards). One of the primary requirements is the completion of a "home study" on any prospective adoptive parents. Id. § 96.47. A home study involves the collection of "[i]nformation about the prospective adoptive parent(s)' identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, and the characteristics of the children for whom the prospective adoptive parent(s) would be qualified to care (specifying in particular whether they are willing and able to care for a child with special needs)." Id. § 96.47(a)(1). Home studies must also include "[a] determination whether the prospective adoptive parent(s) are eligible and suited to adopt; ... [a] statement describing the counseling and training provided to the prospective adoptive parent(s); ... [t]he results of a criminal background check on the prospective adoptive parents," and any additional information required by the child's Central Authority. Id. §§ 96.47(a)(2)–(5). According to plaintiff, "[t]he most consequential part of [the adoption] process is the home study[.]" Compl. ¶ 29, ECF No. 1.
Plaintiff NCFA, by its own words, is a non-profit organization that advocates for and promotes a culture of adoptions. Id. ¶ 13. NCFA was founded in 1980 and has grown to an association of approximately 100 adoption agencies. Id. A majority of those agencies are accredited to facilitate intercountry adoptions. Id.
Plaintiff filed the instant case challenging a series of written statements—issued by defendants—pertaining to soft referrals, referred to by plaintiff as the "soft referral ban." Id. ¶ 4. Between February 13 and May 2, 2018, the State Department published three public notices (styled as guidance documents) concerning soft referrals. See id. ¶ 38; id. Exs. A ("February 13 Notice"), B ("March 16 Guidance"), and C ("May 2 FAQs") (together, "SRG").
Soft referrals "occur[ ] when a child and prospective adoptive parents are ‘matched’ for adoption either (a) before the child's eligibility for adoption is confirmed, or (b) before the prospective parents have completed the months-long home study process." Id. ¶ 39. Put differently, ASPs sometimes make soft referrals of a child to prospective adoptive parents before the child can, consistent with U.S., foreign, and international law, be adopted, or that the parents can, consistent with such laws, adopt any child. See id. But the child may not be officially adopted until those legal requirements are met. See id.
On February 1, 2018, the State Department published a notice explaining the fee schedules for the new accrediting entity, Intercountry Adoption Accreditation and Maintenance Entity, Inc. ("IAAME"). Maskew Decl. ¶ 3, ECF No. 21-1. Under its fee schedule, ASPs must report each new case to IAAME because its monitoring and oversight fees for each ASP are based on that ASP's number of cases. Id. ¶ 3. On February 5, 2018, the Department held conference calls with ASPs to answer questions about the fee schedule, including questions about the point in the adoption process at which a prospective adoptive parent "counts" as a new case that must be reported to IAAME. Id. ¶¶ 3–4. During one of such calls, an ASP asked State Department representatives if a soft referral counts as providing an adoption service that would trigger the requirement to report a new case to IAAME. Id. ¶ 4. A representative responded that a soft referral should not be the first event in a case that creates an obligation to report the case to IAAME but "confirmed that if an ASP did somehow make a ‘soft referral’ to a Prospective Adoptive Parent or parents prior to other activity on their adoption case, that would be considered a new case and the new case fee would be payable." Id. ¶ 4.
Following the February 5 calls, the Department published the February 13 Notice, a public notice with answers to Frequently Asked Questions from ASPs. See generally Compl. Ex. A. This notice stated, among other things, that "[i]n response to a specific question received from an ASP, the Department notes that a ‘soft referral’ is not acceptable practice under the regulations and may lead to adverse action." Id. at 7. In response to the February 13 Notice's statement regarding soft referrals, many ASPs asked the State Department for clarification. Maskew Decl. ¶ 6. According to Ms. Maskew, "it became clear that the term ‘soft referral’ was used [by ASPs] to refer to a far wider set of situations than had been implied by the question during the February 5 call." Id.
In response to these requests for clarification, the State Department published the second portion of the SRG. See generally Compl. Ex. B. The March 16 Guidance clarified the State Department's position regarding the legality of soft referrals and explained that two specific types of soft referrals are prohibited. The first practice concerns soft referrals "involving a child not yet determined to be eligible for intercountry adoption." Id. at 1. The guidance explains that "[t]his type of soft referral involves the ... [ASP] informing a [prospective adoptive parent] about a specific child" before the Central Authority in the child's country of origin has determined that the child is eligible for intercountry adoption under that country's law or has "found intercountry adoption to be in the child's best interests." Id. Making this type of soft referral could result in "harm[ ] to both the child and the [prospective adoptive parents]," id. , and because of this risk of harm, the Guidance claims that this practice is inconsistent with the Hague Convention and with the IAA's implementing regulations. Id. at 2.
The March 16 Guidance explains that a "more common type of soft referral involves ASPs matching an eligible/adoptable child to a [prospective adoptive parent] who does not have an approved home study, in a manner that...
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