460 F.Supp.3d 37
D.D.C.2020Background
- The Intercountry Adoption Act (IAA) and Hague Convention require accreditation and standards for adoption service providers (ASPs); “soft referrals” are informal matches by ASPs prior to formal referral by a child’s Central Authority or completion of a home study.
- Between Feb.–May 2018 the State Department issued a series of public statements (Feb. 13 Notice, Mar. 16 Guidance, May 2 FAQs) addressing soft referrals (the “SRG”), identifying two specific soft-referral practices as improper but stating other soft referrals may be permissible.
- National Council for Adoption (NCFA) sued under the Administrative Procedure Act seeking to declare the SRG unlawful and enjoin its implementation, arguing the SRG functioned as a categorical ban on soft referrals.
- Defendants maintained the SRG did not categorically ban all soft referrals and consistently described the SRG’s narrower scope throughout litigation.
- The Court found NCFA mischaracterized the SRG, and the administrative record and member declarations did not establish a concrete, traceable injury to NCFA or its members.
- The Court granted defendants’ motion to dismiss for lack of Article III standing, granted the motion to strike late supplemental declarations, and denied the summary judgment motions as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Organizational standing: did NCFA suffer a concrete injury? | NCFA: SRG impairs NCFA’s mission and its ability to advise members by banning a critical tool (soft referrals). | Defs.: SRG is not a categorical ban; NCFA’s asserted injury is abstract policy disagreement, not a concrete operational impairment. | Held: No organizational standing—NCFA failed to show a concrete, demonstrable injury traceable to SRG. |
| Associational standing: do NCFA members have individual standing? | NCFA: Administrative record and member declarations show members stopped soft-referral practices because of SRG. | Defs.: Record and declarations do not show members engaged in the specifically prohibited conduct or ceased it because of SRG. | Held: No associational standing—members did not demonstrate Article III standing. |
| Nature/scope of SRG: is it a categorical ban on all soft referrals? | NCFA: SRG operates as a categorical ban, contrary to law and practice. | Defs.: SRG, as clarified, targets two specific improper practices and permits other soft-referral conduct. | Held: Court agrees SRG is not a categorical ban; defendants’ characterization matches SRG text. |
| Late supplemental declarations: should the court consider them? | NCFA: Supplemental declarations show members’ injuries and revised positions. | Defs.: Eleventh-hour submissions are prejudicial and attempt inconsistent litigation positions. | Held: Court struck the late supplemental declarations as prejudicial and inconsistent. |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (standing and prudential limits on federal jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (constitutional standing requirements)
- Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905 (organizational standing requires concrete, demonstrable injury)
- People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 (two-part test for organizational injury and resource diversion)
- Sierra Club v. EPA, 292 F.3d 895 (when standing is self-evident from administrative record)
- Am. Library Ass'n v. FCC, 401 F.3d 489 (clarifying limits of "self-evident" standing and need for early record of standing)
- Nat. Res. Def. Council v. EPA, 489 F.3d 1364 (associational standing requirements)
- Nat'l Treasury Emps. Union v. United States, 101 F.3d 1423 (organizational injury must inhibit daily operations)