4 F.4th 106
D.C. Cir.2021Background
- In 2018 the U.S. Department of State posted web guidance defining and banning certain “soft referrals” in intercountry adoption: (1) informing or matching prospective parents about a child before a home country determines eligibility, and (2) “holding” a child for parents who lack an approved home study in a way that prevents other families/authorities from considering the child.
- The National Council For Adoption sued under the Administrative Procedure Act, alleging the Guidance was a legislative rule that required notice-and-comment and was arbitrary and capricious.
- The district court struck the plaintiff’s supplemental declarations as untimely, concluded the Council lacked associational standing, and dismissed the suit; both parties had also filed cross-motions for summary judgment.
- On appeal the D.C. Circuit reinstated the supplemental declarations, held at least one Council member (Nightlight) had associational standing, and exercised its discretion to decide the merits rather than remand.
- The court concluded the Guidance is a legislative rule (not merely interpretive), because it imposed a categorical ban with legal effect and therefore required notice-and-comment; it vacated the Guidance on procedural grounds and did not address the arbitrary-and-capricious claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Council has associational standing | Council: supplemental declarations show at least one member ceased prohibited soft-referral practices and thus suffered injury traceable to the Guidance | State: initial declarations were too general and did not show members engaged in the two expressly prohibited practices; supplemental declarations were untimely and should be struck | Court: district court abused discretion in striking supplements; at least one member had injury, causation, and redressability — associational standing satisfied |
| Whether supplemental declarations could be considered despite timing | Council: timely supplemented in reply after State insisted on specifics; no prejudice to State | State: late filings prejudiced State and raised new facts/theories | Court: analogous to Communities Against Runway Expansion; supplements merely shored up prior affidavits, made standing "patently obvious," and caused no prejudice — so they were admissible |
| Whether appellate court should decide the merits or remand | Council: ask appellate court to decide merits now | State: if standing found, no objection to resolving notice-and-comment issue on appeal | Court: exercised discretion to decide merits because parties fully briefed the legal question and remand would waste judicial resources |
| Whether the Guidance is a legislative rule requiring notice-and-comment | Council: Guidance creates new legal obligations (categorical bans) and has enforcement consequences, so it is legislative | State: Guidance merely interprets existing statutes/regulations (best-interests-of-the-child standard) and clarifies preexisting obligations | Court: Guidance is legislative — it created a categorical prohibition not compelled by prior law and thus required notice-and-comment; vacated on procedural grounds |
Key Cases Cited
- Natural Resources Defense Council v. EPA, 489 F.3d 1364 (D.C. Cir. 2007) (associational-standing framework)
- Twin Rivers Paper Co. LLC v. SEC, 934 F.3d 607 (D.C. Cir. 2019) (limits on proving standing for first time in reply; distinguishing acceptable supplements)
- Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678 (D.C. Cir. 2004) (accepting supplemental declarations when standing is patently obvious)
- Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (appellate court may decide merits when fully briefed and remand would waste resources)
- Natural Resources Defense Council v. Wheeler, 955 F.3d 68 (D.C. Cir. 2020) (test distinguishing legislative from interpretive rules)
- POET Biorefining, LLC v. EPA, 970 F.3d 392 (D.C. Cir. 2020) (notice-and-comment requirement distinction)
- Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015) (interpretive rules explain pre-existing legal obligations)
- Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) (district court discretion to exclude post-briefing affidavits)