NATIONAL COUNCIL FOR ADOPTION v. POMPEO et alMOTION to Dismiss , MOTION to Dismiss for Lack of JurisdictionD.D.C.March 21, 20191 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) NATIONAL COUNCIL FOR ) ADOPTION, ) ) Plaintiff, ) ) v. ) Case No. 1:18-cv-02704-RCL ) MICHAEL R. POMPEO, in his official ) capacity as U.S. Secretary of State; CARL C. ) RISCH, in his official capacity as Assistant ) Secretary of State for Consular Affairs; ) SCOTT RENNER, in his official capacity ) as Director of the Office of Children’s Issues, ) State Department; TRISH MASKEW, in her ) official capacity as Chief of the Adoptions ) Division, State Department; and U.S. ) Department of State, ) ) Defendants. ) ____________________________________) MOTION TO DISMISS Defendants Michael R. Pompeo, in his official capacity as U.S. Secretary of State; Carl C. Risch, in his official capacity as Assistant Secretary of State for Consular Affairs; Scott Renner, in his official capacity as Director of the Office of Children’s Issues in the State Department; Trish Maskew, in her official capacity as Chief of the Adoptions Division in the State Department; and the U.S. Department of State (collectively, “Defendants”), by and through undersigned counsel, hereby move to dismiss the Complaint, ECF No. 1, pursuant to Federal Rule of Civil Procedure 12(b)(1). The grounds for this motion are set forth in the accompanying memorandum of points and authorities. Respectfully submitted this 21st day of March, 2019, JOSEPH H. HUNT Assistant Attorney General, Civil Division ANTHONY J. COPPOLINO Deputy Director, Federal Programs Branch Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 1 of 33 2 /s/ Anjali Motgi / ANJALI MOTGI (Texas Bar # 24092864) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L St., N.W. Washington, D.C. 20530 (202) 305-0879 (tel.) (202) 616-8470 (fax) anjali.motgi@usdoj.gov Counsel for Defendants Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 2 of 33 i TABLE OF CONTENTS INTRODUCTION ................................................................................................................... 1 BACKGROUND ....................................................................................................................... 1 I. STATUTORY AND REGULATORY FRAMEWORK .................................................................................. 1 II. SOFT REFERRALS AND THE SOFT REFERRAL GUIDANCE ................................................................ 3 LEGAL STANDARDS .............................................................................................................. 9 ARGUMENT .......................................................................................................................... 11 I. NCFA LACKS ORGANIZATIONAL STANDING. ............................................................................ 11 A. NCFA Does Not Allege That It Has Suffered an Injury in Fact As a Result of the Soft Referral Guidance. ............................................................................................................................................ 12 B. NCFA Has Failed to Connect Any Alleged Procedural Deprivation To Any Concrete Interest or Injury. ................................................................................................................................................ 17 II. NCFA LACKS ASSOCIATIONAL STANDING. ................................................................................. 18 A. NCFA Has Failed to Identify a Single Member with Standing to Sue. ................................................ 19 B. NCFA Cannot Establish that Its Lawsuit is Germane to or That It Can Fairly Represent the Interests of NCFA Members. ............................................................................................................................ 22 CONCLUSION ....................................................................................................................... 25 Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 3 of 33 ii TABLE OF AUTHORITIES CASES Action All. of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931 (D.C. Cir. 1986) .................................................................................................................... 14 Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13 (D.D.C. 2003) ............................................................................................................... 5 Am. Ass’n of Cosmetology Sch. v. Devos, 258 F. Supp. 3d 50 (D.D.C. 2017) ............................................................................................................. 25 Am. Chemistry Council v. U.S. Dep’t of Transp., 468 F.3d 810 (D.C. Cir. 2006) .................................................................................................................... 19 Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987) ............................................................................................................... 13, 14 Bell v. U.S. Dep’t of Health & Human Servs., 67 F. Supp. 3d 320 (D.D.C. 2014) ............................................................................................................. 10 Blue Water Baltimore v. Pruitt, 266 F. Supp. 3d 174 (D.D.C.), amended sub nom, Baltimore v. Pritt, 293 F. Supp. 3d 1 (D.D.C. 2017) .................................................................................. 15 Brady Campaign to Prevent Gun Violence United with the Million Mom March v. Ashcroft, 339 F. Supp. 2d 68 (D.D.C. 2004) ............................................................................................................. 23 Cal. Ass’n of Private Postsecondary Sch. v. DeVos, 344 F. Supp. 3d 158 (D.D.C. 2018) .......................................................................................................... 20 Californians for Renewable Energy v. U.S. Dep’t of Energy, 860 F. Supp. 2d 44 (D.D.C. 2012) ............................................................................................................. 20 Capital Legal Found. v. Commodity Credit Corp., 711 F.2d 253 (D.C. Cir. 1983) .................................................................................................................... 18 Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011) .................................................................................................................... 19 Chesapeake Climate Action Network v. Exp.-Imp. Bank, 78 F. Supp. 3d 208 (D.D.C. 2015) ............................................................................................................. 12 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .............................................................................................................................. 10, 21 Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 4 of 33 iii Common Cause v. Biden, 909 F. Supp. 2d 9 (D.D.C. 2012) ............................................................................................................... 15 Conservative Baptist Ass’n of Am., Inc. v. Shinseki, 42 F. Supp. 3d 125 (D.D.C. 2014) ............................................................................................................. 14 Ctr. for Biological Diversity v. Dep’t of Interior, 563 F.3d 466 (D.C. Cir. 2009) .................................................................................................................... 21 Ctr. for Biological Diversity v. United States Dep’t of State, No. 18-563, 2018 WL 5840515 (D.D.C. Nov. 8, 2018) ............................................................ 13, 17, 20 Ctr. for Responsible Sci. v. Gottlieb, 346 F. Supp. 3d 29 (D.D.C. 2018), appeal filed, No. 18-5364 (D.C. Cir. Dec. 19, 2018) ..................................................................................................... 16 Envtl. Working Grp. v. U.S. Food & Drug Admin., 301 F. Supp. 3d 165 (D.D.C. 2018) .......................................................................................................... 20 Fla. Audobon Soc’y v. Bentsen 94 F.3d 658 (D.C. Cir. 1996) ...................................................................................................................... 10 Food & Water Watch v. Vilsack, 79 F. Supp. 3d 174 (D.D.C. 2015) ...................................................................................................... 15, 16 Friends of the Earth, Bluewater Network Div. v. U.S. Dep’t of Interior, 478 F. Supp. 2d 11 (D.D.C. 2007) ...................................................................................................... 19, 23 Friends of the Earth, Inc. v. Laidlaw Envtl Servs., 528 U.S. 167 (2000) ..................................................................................................................................... 18 Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987) ...................................................................................................................... 5 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ..................................................................................................................................... 12 Haw. Orchid Growers Ass’n v. U.S. Dep’t of Agric., 436 F. Supp. 2d 45 (D.D.C. 2006), aff’d sub nom, Haw. Orchid Growers Ass’n v. Johanns, 249 F. App’x 204 (D.C. Cir. 2007) ............................................. 18 Herbert v. Nat’l Acad. of Scis., 974 F. 2d 192 (D.C. Cir. 1992)................................................................................................................... 11 Humane Soc’y of the U.S. v. Hodel, 840 F.2d 45 (D.C. Cir. 1988) ...................................................................................................................... 24 Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4 (D.C. Cir. 2015) ................................................................................................................. 11, 12 Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 5 of 33 iv Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977) .............................................................................................................................. 22, 23 Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130 (D.C. Cir. 2005).................................................................................................................. 18 James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996) .................................................................................................................... 10 Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249 (D.C. Cir. 2005).................................................................................................................. 11 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ....................................................................................................................................... 9 La. Envtl. Action Network v. U.S. EPA, 172 F.3d 65 (D.C. Cir. 1999) ...................................................................................................................... 24 Land v. Dollar, 330 U.S. 731 (1947) ....................................................................................................................................... 5 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........................................................................................................................ 10, 12, 21 Masoud v. Suliman, 816 F. Supp. 2d 77 (D.D.C. 2011) ............................................................................................................. 10 Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014).................................................................................................................. 18 Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011) ........................................................................................................................ 19 Nat’l Maritime Union of Am. v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C. Cir. 1987).................................................................................................................. 24 Nat’l Treasury Employees Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996)........................................................................................................... 12, 14 Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339 (D.C. Cir. 2018) .................................................................................................................... 18 PETA v. U.S. Dep’t of Agric., 797 F.3d 1087 (D.C. Cir. 2015).............................................................................................. 11, 12, 13, 17 Pub. Citizen, Inc. v. Trump, 297 F. Supp. 3d 6 (D.D.C. 2018) ............................................................................................................... 20 Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 6 of 33 v Public Citizen, Inc. v. Trump, _F. Supp. 3d_, 2019 WL 498528 (D.D.C. Feb. 8, 2019) ....................................................................... 11 R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 810 F.3d 827 (D.C. Cir. 2016) .................................................................................................................... 12 Sierra Club v. Morton, 405 U.S. 727 (1972) ..................................................................................................................................... 16 Speelman v. United States, 461 F. Supp. 2d 71 (D.D.C. 2006) ............................................................................................................. 10 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), as revised (May 24, 2016) ........................................................................ 12, 17, 18 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ....................................................................................................................................... 10 Stewart v. Rubin, 948 F. Supp. 1077 (D.D.C. 1996) .......................................................................................... 11, 13, 14, 18 Strunk v. Obama, 880 F. Supp. 2d 1 (D.D.C. 2011) ............................................................................................................... 10 Summers v. Earth Island Inst., 555 U.S. 488 (2009) .............................................................................................................................. 17, 19 Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ..................................................................................................................................... 10 Tozzi v. E.P.A., 148 F. Supp. 2d 35 (D.D.C. 2001) ........................................................................................................ 5, 11 W. Wood Preservers Inst. v. McHugh, 292 F.R.D. 145 (D.D.C. 2013) ................................................................................................................... 20 Wash. Legal Found. v. Leavitt, 477 F. Supp. 2d 202 (D.D.C. 2007) .......................................................................................................... 24 Wigfall v. Office of Compliance, 332 F. Supp. 3d 159 (D.D.C. 2018) .......................................................................................................... 11 STATUTES 42 U.S.C. §§ 14901 et seq ................................................................................................................................... 1 42 U.S.C. § 14901 .......................................................................................................................................... 1, 3 42 U.S.C. § 14921 ............................................................................................................................................... 1 Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 7 of 33 vi 42 U.S.C. § 14922 ............................................................................................................................................... 2 42 U.S.C. § 14925 ............................................................................................................................................... 2 RULES Fed. R. Civ. P. 12 ...................................................................................................................................... 10, 11 REGULATIONS 22 C.F.R. Part 96 ................................................................................................................................................ 2 22 C.F.R. §§ 96.1 et seq ....................................................................................................................................... 1 22 C.F.R. § 96.12 ................................................................................................................................................ 2 22 C.F.R. § 96.35 ....................................................................................................................................... 2, 3, 7 22 C.F.R. § 96.36 ................................................................................................................................................ 2 22 C.F.R. § 96.47 ................................................................................................................................................ 3 22 C.F.R. §§ 96.47-96.52 ................................................................................................................................... 3 OTHER AUTHORITIES Department of State, Adoption Notice: IAAME Fee Schedule, Explanation, and FAQ (Feb. 1, 2018), https://travel.state.gov/content/travel/ en/News/Intercountry-Adoption-News/adoption- notice--iaame-fee-schedule--explanation--and-faq.html .......................................................................... 5 Department of State, Fiscal Year 2018 Annual Report on Intercountry Adoption, https://travel.state.gov/content/dam/NEWadoptionassets/pdfs/Tab%201%20Annual %20Report%20on%20Intercountry%20Adoptions.pdf ....................................................................... 15 NCFA, Who We Are: Mission: Federal Adoption Policy, https://www.adoptioncouncil.org/who-we-are/mission/Federal-Adoption-Policy ....................... 16 U.S. Department of State, Bureau of Consular Affairs, Monthly Immigrant Visa Issuance Statistics, Immigrant Visa Issuances by Foreign State of Chargeability or Place of Birth (January 2019), https://travel.state.gov/content/dam/visas/ Statistics/Immigrant-Statistics/MonthlyIV Issuances/JANUARY%202019%20%20IV%20Issuances %20by%20FSC%20and%20 Visa%20 Class.pdf ....................................................................................................................................... 17 Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 8 of 33 1 INTRODUCTION Plaintiff National Council for Adoption (“NCFA”), an advocacy group whose members are adoption service providers, brings this action against the U.S. Department of State and various officials in the Department (collectively, “Defendants”), seeking to challenge guidance concerning various intercountry adoption practices known as “soft referrals.” NCFA claims that the Department’s guidance is procedurally and substantively improper. But whatever the merits of those claims (which Defendants contest), the Complaint fails to establish NCFA’s standing – either in its own right as an organization, or on behalf of its members as an association – to bring them. For this reason alone, Defendants respectfully submit that the Court should dismiss this suit. BACKGROUND I. Statutory and Regulatory Framework 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”), to which the United States became a signatory in 1994. The IAA is intended 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). The IAA and its implementing regulations, 22 C.F.R. §§ 96.1 et seq., require that any person or organization providing adoption services in connection with a Hague Convention adoption in the United States be accredited in accordance with the statute. 42 U.S.C. § 14921(a). Under the statute, Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 9 of 33 2 an accrediting entity designated by the State Department processes prospective adoption service providers’ applications for accreditation and renewals of accreditation, and monitors their compliance with accreditation standards.1 42 U.S.C. § 14922(a); 22 C.F.R. § 96.12. Since April 2018, the Intercountry Adoption Accreditation and Maintenance Entity, Inc. (IAAME) has been the only designated accrediting entity. Once the adoption service provider (“ASP”) has been accredited (for a renewable period of four years), that ASP may provide adoption services, as defined by the IAA. These services include identifying a child for adoption and arranging the adoption of children by prospective adoptive parents. This identification and arranging process can sometimes include “matching” the child with a prospective adoptive parent, but the ultimate responsibility for making a “referral,” or a formal determination that a particular child should be placed with a particular family for adoption, rests with the relevant government department or entity of the child’s country of origin (known as the Central Authority or competent authority). 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 Department of State to develop standards and compliance obligations that must be met by ASPs in order to obtain and maintain accreditation; these substantive standards are codified at 22 C.F.R. Part 96 Subpart F. The regulations govern a wide array of conduct by the ASPs to ensure that adoption services are provided in accordance with the ethical principles of the Hague Convention; including that primary consideration is given to the best interests of children and that children are not abducted, exploited or trafficked, 22 C.F.R. §§ 96.35 & 96.36; and that the rights and interests of families and children are appropriately protected. In all cases, ASPs are required by regulation and statute to “provide[] adoption services ethically and in accordance with the [Hague] Convention’s principles of: (1) [e]nsuring that 1 The Intercountry Adoption Universal Accreditation Act of 2012 extends the accreditation requirements of the IAA to organizations and persons providing adoption services in connection with an intercountry adoption involving a country not a party to the Convention. 42 U.S.C. § 14925. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 10 of 33 3 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). These ethical mandates are the touchstone for appropriate ASP conduct under the IAA and the Hague Convention. See 42 U.S.C. § 14901(b)(2); Convention, art. 1. The IAA’s implementing regulations also include a set of specific standards for ASPs for cases in which a child is immigrating to the United States. See 22 C.F.R. §§ 96.47-96.52 (“incoming” case standards). A primary requirement in such cases 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 Central Authority of the child’s country of origin. Id. §§ 96.47(a)(2)-(5). If the ASP does not perform the home study itself, it must review and approve the home study conducted by another agency or individual. Id. § 96.47(c). The “home study” is thus the key mechanism by which the ASP determines whether new clients are suitable for intercountry adoption. See Complaint, ECF No. 1, ¶ 29 (“The most consequential part of this [adoption] process is the home study[.]”). II. Soft Referrals and the Soft Referral Guidance Between February 13 and May 2, 2018, the Department of State published three public notices concerning, in whole or in part, practices utilized by some ASPs known as “soft referrals.” See Compl. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 11 of 33 4 ¶ 38 (referring to “series of statements on [the Department’s] website . . . styled as ‘guidance’”). The three notices – all of which are attached to Plaintiff’s Complaint – collectively constitute the soft referral guidance, see Compl., Exs. A (February 13 Notice), B (March 16 Guidance), and C (May 2 FAQs) (together, “soft referral guidance”). 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.” Compl. ¶ 39. In other words, adoption agencies sometimes make “soft referrals” of a child to a prospective adoptive family before it has been confirmed that the child can, consistent with U.S., foreign, and international law, be adopted by any family, or that the family can, consistent with such laws, adopt any child. See id. Consistent with the principles of the Convention, matching of an adoptive child with a prospective adoptive family is properly done only after the child’s eligibility for adoption has been established – including, where necessary, by ensuring that the child’s living birth parents have given informed consent to the adoption – and after the adoptive family has been deemed eligible to adopt – after completing a home study and receiving training. See Convention, arts. 4(a) (an adoption between Convention countries may only take place if the competent authorities of the child’s country “have established that the child is adoptable”) & 5 (an adoption between Convention countries may only take place if “the competent authorities of the receiving [s]tate … have determined that the prospective adoptive parents are eligible and suited to adopt” and “have been counselled”); see also id. art. 29 (prohibiting contact between the prospective adoptive parents and any person who has care of the child until the competent authorities in each; Compl. ¶ 2 (“These steps” – confirming the child’s eligibility for adoption and the country of origin’s approval for adoption, and determining that the prospective adoptive parents are suitable and trained for intercountry adoption – “must be performed in any intercountry adoption.”). Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 12 of 33 5 The soft referral guidance at issue in this case arose out of a question raised by an ASP during a conference call with the Department on unrelated matters. See Declaration of Trish Maskew ¶ 4 (filed concurrently herewith).2 On February 1, 2018, the Department had published a notice explaining the fee schedules for the new accrediting entity, IAAME. Id. ¶ 3.3 Under IAAME’s fee schedule, ASPs are obliged to report each new case to the accrediting entity, as IAAME’s 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 adoption service providers to answer questions about IAAME’s fee schedule, including questions as to 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 such call, an ASP asked Department representatives if a “soft referral” counts as providing an adoption service, such that it would trigger the requirement to report a new case to IAAME. Id. ¶ 4. The Department responded that a soft referral should not be the first event in a case that creates an obligation to report the case to IAAME4, 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, 2 “When reviewing a challenge pursuant to Rule 12(b)(1), the Court may consider documents outside the pleadings to assure itself that it has jurisdiction.” Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947)); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (“In 12(b)(1) proceedings, it has been long accepted that the judiciary may make ‘appropriate inquiry’ beyond the pleadings to ‘satisfy itself on authority to entertain the case.’” (citations omitted)). “The parties may produce affidavits and other materials to support their position on subject matter jurisdiction, and the court is free to weigh such evidence in assessing its power to decide the case.” Tozzi v. E.P.A., 148 F. Supp. 2d 35, 41 (D.D.C. 2001). 3 See Department of State, Adoption Notice: IAAME Fee Schedule, Explanation, and FAQ (Feb. 1, 2018), https://travel.state.gov/content/travel/ en/News/Intercountry-Adoption-News/adoption- notice--iaame-fee-schedule--explanation--and-faq.html (last accessed March 20, 2019) (hereinafter “February 1 Notice”). 4 The ASP’s question presumed that no other adoption services had been provided by the ASP, and that the PAPs had not signed a contract with, or paid fees to, the ASP. This is because, as the February 1 Notice explained, any of those actions unambiguously would have triggered the obligation to report the case to IAAME, before the soft referral was made. See Maskew Decl. ¶ 4; see also February 1 Notice (explaining that IAAME’s fee “is payable as an ASP accepts new intercountry adoption applications” from clients, or provides other adoption services). Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 13 of 33 6 that would be considered a new case and the new case fee would be payable.” Maskew Decl. ¶ 4. Following the February 5 calls, the Department published a public notice with answers to Frequently Asked Questions from ASPs, most of which pertained to IAAME’s fees. See generally Compl. Ex. A (February 13 Notice). This notice also stated 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. Nothing further about soft referrals was included in the February 13 Notice, which focused on IAAME’s fee structure. In response to the FAQ statement about soft referrals in the February 13 Notice, the Department received a number of questions about soft referrals from ASPs, from which “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.” Maskew Decl. ¶ 6. As a result, the Department was asked to clarify what was meant by the term “soft referral.” Id. In response to these questions, the Department published further guidance on soft referrals. Id. ¶ 7; see also Compl., Ex. B (March 16 Guidance). That guidance “did not impose a complete ban on ‘soft referrals,’ but rather identified specific ASP conduct as unlawful under the Hague Convention, the . . . IAA, and the Department’s accreditation regulations.” Maskew Decl. ¶ 7. Specifically, the March 16 Guidance “clarified that there are two practices [from] within the category referred to as ‘soft referrals’ that” are impermissible under international and U.S. law. Id. ¶ 8. The first practice concerns soft referrals “involving a child not yet determined to be eligible for intercountry adoption.” March 16 Guidance at 1. The notice 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. Second, the March 16 Guidance explains Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 14 of 33 7 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 removes that child from consideration by other families that the Central or competent authority may wish to consider.” Id. at 2-3. The March 16 Guidance clarifies that this second practice, “sometimes referred to as ‘holding’ the child,” is improper. Id. at 3. As to the first category of soft referrals, the Guidance explains that matching a child to prospective adoptive parents before the child has been found eligible for adoption could result in “harm[] to both the child and the [prospective adoptive parents].” Id. at 1. Such harm, the document states, can be especially severe where “the adoptive parents [later] learn[] that the birth mother had been told the child was being taken into care temporarily to receive an education . . . [and] did not consent to the adoption.” Id. at 2. Because this first type of soft referral “carries serious risks for children, birth families, and adoptive families,” the Guidance reminds ASPs that it is inconsistent with the Hague Convention and with the IAA’s implementing regulations. Id.; see also 22 C.F.R. § 96.35(a) (requiring that adoption services be provided ethically and in accordance with the principles of the Hague Convention). As to the second category of soft referrals, the March 16 Guidance explains that matching an eligible child to a prospective adoptive parent who has not been approved for adoption, “in a manner that removes that child from consideration by other families that the” country of origin “may wish to consider” and that have been approved for adoption, places the interests of the ASPs and their clients – both of whom may wish to “hold” a specific child for a particular prospective adoptive family – above the best interests of the child. See March 16 Guidance at 2, 5. The practice of “holding,” the guidance explains, “effectively deprives the Central [A]uthority” in the child’s country of origin “of the opportunity to [place the child elsewhere when it is] in the child’s best interest.” Id. at 5. In other words, “holding” prevents other ASPs – whether based in the United States, in other countries, or in Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 15 of 33 8 the child’s country of origin – from determining whether different prospective adoptive parents might be a better fit for the child, because “holding” takes the child out of consideration by other families and other ASPs. Holding can then be even further abused; as Ms. Maskew explains, “[i]n some cases, ASPs have demanded that [prospective adoptive parents] either switch providers or make a payment in exchange for making a ‘held’ child available to them.” Maskew Decl. ¶ 11. In this way, the March 16 Guidance explains that two types of conduct that occur in the context of “soft referrals” are prohibited under the IAA, the Hague Convention, and the Department’s accreditation regulations. The Guidance does not, however, prohibit an ASP from informing a specific prospective adoptive parent about a specific child who is eligible for adoption, even if the prospective adoptive parent has not yet completed its home study—another practice commonly referred to as a “soft referral”—so long as the ASP does not take any action that prevents other ASPs from referring the child to other families, or that prevents or dissuades other suitable families from adopting the child, or that prevents another country’s Central Authority from either learning of other eligible families or considering alternative placements for that child. See Maskew Decl. ¶ 12. The Department of State continued to receive questions relating to soft referrals after its March 16 Guidance was published, and on May 2, 2018, the Department posted additional guidance in the form of Frequently Asked Questions. See generally Compl., Ex. C (May 2 FAQs). The May 2 FAQs addressed a number of scenarios related to soft referrals; in so doing, it emphasized that some forms of soft referrals are lawful and available to ASPs. The May 2 FAQs reiterated that ASPs may in some cases identify an eligible adoptive child to a prospective adoptive family that has not yet completed its home study, but must do so in a manner that does not “hold” the child from consideration by other families or by the authorities of the child’s country of origin. Id. at 10 (explaining that “an ASP may indicate prospective adoptive parents’ wishes and preference, including to adopt a specific child, to the extent permitted by the foreign country” and without implying that Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 16 of 33 9 there is any binding agreement “holding” the specific child for those prospective parents); see also id. at 11 (explaining that “[r]eferring [a] child to a family without a home study whom the ASP believes is in the best interests of the child may not” be unlawful “if: a) such a referral complies with the requirements of the foreign country, and b) if the ASP does not interfere with other ASPs’ efforts to communicate with the foreign . . . authority about a family that is home study ready,” because “[t]he relevant foreign authorities are responsible for determining what placement is in the best interests of a child who has been determined eligible for intercountry adoption”). The May 2 FAQs also noted that the soft referral guidance published on March 16 “clarifie[d] existing policies based on current [intercountry adoption] regulations that have been in place since 2006.” Id. at 1. NCFA filed this lawsuit on November 20, 2018, asking the Court to declare the soft referral guidance unlawful and enjoin its implementation. See generally Compl. at 28 (Prayer for Relief). The Complaint seeks to assert three causes of action: Count I argues that the soft referral guidance violates the procedural requirements of the Administrative Procedure Act (“APA”), id. ¶¶ 63-67, and Counts II and III contend that the guidance violates substantive requirements of the APA, because it contravenes state law and is arbitrary or capricious, respectively. Id. ¶¶ 68-76. After staying this case for a brief period during the lapse in appropriation for the Departments of Justice and State, the Court entered a scheduling order for further briefing, see ECF No. 20 (February 8, 2019 Order), pursuant to which this motion to dismiss is filed. LEGAL STANDARDS “Federal courts are courts of limited jurisdiction,” and “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction,” and “the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. Consequently, courts “have ‘an affirmative obligation to consider whether the constitutional and statutory authority exists for [them] to hear each Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 17 of 33 10 dispute.’” Bell v. U.S. Dep’t of Health & Human Servs., 67 F. Supp. 3d 320, 322 (D.D.C. 2014) (quoting James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996)). “Absent subject matter jurisdiction over a case, the court must dismiss it.” Id. “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies,’” and “[t]he doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “Consequently, ‘a showing of standing is an essential and unchanging predicate to any exercise of a court’s jurisdiction.’” Strunk v. Obama, 880 F. Supp. 2d 1, 3 (D.D.C. 2011) (citing Fla. Audobon Soc’y v. Bentsen, 94. F.3d 658, 663 (D.C. Cir. 1996)). “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing.” Strunk, 880 F. Supp. 2d at 3 (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998)). “It is well established that, in assessing subject matter jurisdiction, a court must construe the allegations in the Complaint liberally but ‘need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the Complaint, nor must the Court accept plaintiffs’ legal conclusions.’” Masoud v. Suliman, 816 F. Supp. 2d 77, 79 (D.D.C. 2011) (quoting Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). Further, the Court “must give the plaintiffs’ factual allegations closer scrutiny in assessing subject matter jurisdiction than would be required for a Rule 12(b)(6) motion for failure to state a claim.” Id. Faced with a facial challenge to the Court’s jurisdiction under Rule 12(b)(1), “the Court must . . . assess the ‘plausibility’ of the plaintiff’s standing allegations in light of the relevant context and the Court’s ‘judicial experience and common sense.’” Public Citizen, Inc. v. Trump, _F. Supp. 3d_, 2019 WL 498528, at *6 (D.D.C. Feb. 8, Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 18 of 33 11 2019) (quoting Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). “In evaluating subject matter jurisdiction, the Court, when necessary, may look outside the Complaint to ‘undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’” Id. (quoting Herbert v. Nat’l Acad. of Scis., 974 F. 2d 192, 197 (D.C. Cir. 1992)); see also Wigfall v. Office of Compliance, 332 F. Supp. 3d 159, 168 n.4 (D.D.C. 2018) (“[T]he Court ‘may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.’” (citing Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005))). The Court may even “rely[] upon its own resolution of disputed facts” in ruling on a Rule 12(b)(1) motion, so long as it explains its findings. Herbert, 974 F.2d at 197. “Technically, the pleader must formally aver the basis of the federal court's jurisdiction. . . . Substantively, the pleader may have formally averred; but if the actual facts and allegations belie the averment, the case's dismissal may be compelled.” Tozzi, 148 F. Supp. 2d at 40. ARGUMENT Defendants move to dismiss this suit under Federal Rule of Civil Procedure 12(b)(1), because NCFA lacks standing to assert the claims raised in the Complaint. “As an organization, [Plaintiff] can assert standing on its own behalf, on behalf of its members or both.” PETA v. U.S. Dep’t of Agric., 797 F.3d 1087, 1093 (D.C. Cir. 2015) (citation omitted). In this case, NCFA asserts that it “has standing to bring this Action in its own right and on behalf of its member adoption agencies.” Compl. ¶ 20. As Defendants explain below, however, NCFA cannot satisfy the requirements for Article III standing either to sue in its own right as an organization, or to sue on behalf of its members, as an association. I. NCFA Lacks Organizational Standing. Before an organization “may litigate on its own behalf,” that organization “must meet the same standing test that applies to individuals.” Stewart v. Rubin, 948 F. Supp. 1077, 1106 (D.D.C. 1996) Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 19 of 33 12 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)). To establish standing on its own behalf, NCFA “must state a plausible claim that [1] [it] has suffered an injury in fact [2] fairly traceable to the actions of the defendant [3] that is likely to be redressed by a favorable decision on the merits.” Humane Soc’y v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (these “three elements” constitute the “irreducible constitutional minimum of standing”). But NCFA has failed to identify an injury in fact that satisfies the standard for organizational standing in this Circuit, so it cannot bring suit on its own behalf. A. NCFA Does Not Allege That It Has Suffered an Injury in Fact As a Result of the Soft Referral Guidance. An organizational plaintiff may satisfy the first prong of standing—the injury-in-fact requirement—only if it identifies a “concrete and demonstrable injury to [its] activities,” rather than “merely a setback to its abstract social interests.” PETA, 797 F.3d at 1093-94 (citation omitted). In the D.C. Circuit, the organization must also show that the challenged government conduct “‘directly conflict[s] with the organization’s mission,’” and that the organization “has expended resources to counteract the injury to its ability to achieve its mission and not simply as a product of ‘unnecessary alarmism constituting a self-inflicted injury.’” Chesapeake Climate Action Network v. Exp.-Imp. Bank, 78 F. Supp. 3d 208, 229 (D.D.C. 2015) (quoting Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). In addition, as with any plaintiff, the asserted injury must be “actual or imminent, not conjectural or hypothetical.” R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 810 F.3d 827, 829 (D.C. Cir. 2016) (quoting Lujan, 504 U.S. at 560-61). In recent years, courts have explained that “[t]he [D.C.] Circuit operationalizes the distinction” between an injury that supports organizational standing and a “mere setback” to the organization “in a two-part test: the Court must ask first ‘whether the agency’s action or omission to act injured the [organization’s] interest,’ and then, if satisfied, whether ‘the organization used its resources to counteract that harm.’” Ctr. for Biological Diversity v. United States Dep’t of State, No. 18-563, 2018 WL Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 20 of 33 13 5840515, at *3 (D.D.C. Nov. 8, 2018) (citing PETA, 797 F.3d at 1094). Here, the Complaint does not even attempt to identify an injury that satisfies either prong of this standard. Beyond stating that it “is a non-profit organization that advocates for and promotes a culture of adoptions,” Compl. ¶ 13, NCFA tells the Court almost nothing about itself. Importantly, the Complaint never explains how NCFA, as an organization, is injured “concrete[ly] and demonstrabl[y]” by the soft referral guidance. PETA, 797 F.3d at 1094. Instead, NCFA relies on blanket assertions that “[t]he Soft Referral Ban5 has had and will continue to have a deleterious effect on all involved in the intercountry adoption process.” Compl. ¶ 61. But “merely alleging that a law may be violated or a social goal disfavored” will not “constitute the required ‘concrete and demonstrable injury to the organization’s activities.’” Stewart, 948 F. Supp. at 1106 (citing Am. Legal Found. v. FCC, 808 F.2d 84, 91 (D.C. Cir. 1987)). Even if the Complaint could be said to describe, with any particularity, the “deleterious effect” of the soft referral guidance on the intercountry adoption community and its many types of participants, Compl. ¶ 61—which it does not—that would not be enough to establish NCFA’s standing to sue in its own right. “Only an injury directed to the organization’s discrete programmatic concerns will be sufficient to establish injury in fact.” Stewart, 948 F. Supp. at 1106 (citation omitted). The Complaint is utterly devoid of allegations that NCFA’s mission has been made more difficult as a result of this guidance; that NCFA has had to make operational changes or alter its daily practices as a result of this guidance; or that NCFA’s future as an advocacy organization is somehow in jeopardy. Typically, “courts have denied standing to groups who allege damage only to the organization’s 5 Plaintiff dubs the guidance a “Soft Referral Ban,” see, e.g., Compl. ¶ 38, but such a label is demonstrably erroneous. In fact, the plain text of the guidance evinces that it does not categorically prohibit soft referrals. See May 2 FAQs at 10-11 (describing permissible soft referral practices). The guidance does not impose a complete ban on “soft referrals,” but rather “clarified that there are two practices within the category referred to as ‘soft referrals’ that are inconsistent with the Hague Convention, the IAA, and the Regulations.” Maskew Decl. ¶¶ 7-8. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 21 of 33 14 overall interests or goals.” Id. (citing Am Legal Found., 808 F.2d at 91); see also, e.g., Conservative Baptist Ass’n of Am., Inc. v. Shinseki, 42 F. Supp. 3d 125, 131 (D.D.C. 2014) (claims that discriminatory termination of employment of two of organization’s members injured organization “do not suffice to show [organizational] standing” where they do not “show ‘a direct conflict between the defendants’ conduct and the organization’s mission,’ Nat’l Treas. Empls. Union, 101 F.3d at 1430”); Action All. of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 938 (D.C. Cir. 1986) (finding injury insufficient for organizational standing where it is at most a “mere interest in a problem or [an] ideological injury,” rather than an “alleged inhibition of [Plaintiff’s] daily operations, an injury both concrete and specific to the work in which they are engaged”) (citation omitted). Thus, abstract or generalized harms to the intercountry “adoption community”– the only harms to NCFA alleged here, see Compl. ¶¶ 61-62 – cannot establish Article III standing for NCFA to challenge the agency action it believes caused those harms. Aside from hams to the “adoption community,” the remaining allegations do not attempt to connect any consequence of the guidance to NCFA. The Complaint asserts that the soft referral guidance “will make intercountry adoption more difficult, more costly, and more emotionally trying— changes that will inevitably decrease the number of families able and willing to commit to intercountry adoption.” Compl. ¶ 62. But NCFA does not explain how such harms would harm its own mission as an organization. And the Complaint does not allege that its mission is simply to increase the number of children who are adopted—and particularly not to do so at the cost of harm to the safety and well- being of the adopted children and prospective adoptive parents, which the soft referral guidance aims to protect. See id. ¶ 7 (acknowledging that “soft referrals can be abused,” and that the State Department may need to “take appropriate steps to address the misuse of soft referrals”); see also id. ¶ 28 (“Given the imperative to prevent corruption and safeguard children, the process of adopting a Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 22 of 33 15 child under the Hague Convention and the IAA is time-consuming and expensive.”).6 The D.C. Circuit has long held that advocacy groups that are dissatisfied with an agency’s policy choices – but share the ultimate aim of the policy – lack standing to challenge the agency’s choices. See, e.g., Food & Water Watch v. Vilsack, 79 F. Supp. 3d 174, 201 (D.D.C. 2015) (“[T]he fact that FWW apparently disagrees with the manner in which the USDA is going about achieving the food safety goal in the context of poultry processing is a dispute about methodology, not a conflict between the organization’s mission and the agency’s action that qualifies as an injury-in-fact.”); Common Cause v. Biden, 909 F. Supp. 2d 9, 22 n. 8 (D.D.C. 2012) (“Common Cause has shown no direct conflict between the allegedly illegal conduct—use of the Cloture Rule—and the organization’s mission—encouraging transparency in elections.”). It follows that, to the extent that NCFA seeks to rely on an unspecified harm to the “culture of adoptions” that it seeks to promote, Compl. ¶ 13, NCFA’s purported injury amounts to a difference in opinion with the Department of State that cannot supply standing to challenge the guidance.7 “In other words, the overall consistency of purpose between the organization and the agency defeats [the] contention that, by enacting the [challenged 6 Even if NCFA’s mission were solely to increase the number of intercountry adoptions at all costs, the Complaint does not explain why requiring ASPs to ensure that a child is eligible for adoption before “matching” the child with prospective adoptive parents, and that parents who have not completed their home study do not remove the child from consideration by other adoptive families, would decrease the number of children who are adopted. 7 The Complaint also suggests that number of “intercountry adoptions have decreased by nearly 80%” since 2004, long before the soft referral guidance was issued in early 2018. See Compl. ¶ 32. The Complaint alleges that “this decline is attributed to Department policies and actions that have made the process of intercountry adoption more difficult.” Id. This allegation again does not address how the soft referral policy challenged here has directly injured NCFA and, in any event, it is readily refuted by publicly available information. See Department of State, Fiscal Year 2018 Annual Report on Intercountry Adoption, at 1 (explaining that year-to-year decline in number of intercountry adoptions by American families is largely explained by legislative changes made by countries of origin, including China and Ethiopia, to discourage intercountry adoption to the United States), https://travel.state.gov/content/dam/NEWadoptionassets/pdfs/Tab%201%20Annual%20Report %20on%20Intercountry%20Adoptions.pdf (last accessed Mar. 20, 2019) (2018 Annual Report); Blue Water Baltimore v. Pruitt, 266 F. Supp. 3d 174, 177 n.4 (D.D.C.), amended sub nom. Baltimore v. Pruitt, 293 F. Supp. 3d 1 (D.D.C. 2017) (court may take judicial notice of information posted on official public websites of government agencies). Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 23 of 33 16 initiative], the agency has jeopardized the organization’s mission.” 79 F. Supp. 3d at 201. Indeed, NCFA’s website, see Compl. ¶ 55 n. 10, describes the advocacy work the organization does around intercountry adoption, and expressly states that this advocacy has been centered on efforts to enact and implement the Hague Convention. See NCFA, Who We Are: Mission: Federal Adoption Policy, https://www.adoptioncouncil.org/who-we-are/mission/Federal-Adoption-Policy (last accessed Mar. 20, 2019). The implementation of the Hague Convention – and ensuring that U.S.- based ASPs adhere to the Convention’s principles – is also a key aim of the IAA and its regulatory scheme, and the Department’s soft referral guidance provides clarification and guidance regarding a particular aspect of that scheme. Both the State Department and NCFA, then, are striving to implement the precepts and practices of the Convention—and the allegations in the Complaint reveal little daylight between the purpose of the soft referral guidance, and the mission of NCFA. Compare, e.g., March 16 Guidance at 2 (“Referring a child who is not yet eligible for intercountry adoption is inconsistent with the Hague Adoption Convention.”), with, e.g., Compl. ¶¶ 25-27 (discussing Hague Convention and related regulatory framework); id. ¶ 28 (discussing “the imperative to prevent corruption and safeguard children,” which is the focus of “the process of adopting a child under the Hague Convention and the IAA”); id. ¶ 76 (acknowledging that “soft referrals . . . can sometimes be misused”); id. ¶ 7 (same). Ultimately, then, although the State Department and NCFA may disagree about how best to safeguard the well-being of adoptive children and prevent corruption in intercountry adoptions, “[n]ot every disagreement merits a lawsuit.” Ctr. for Responsible Sci. v. Gottlieb, 346 F. Supp. 3d 29, 36 (D.D.C. 2018), appeal filed, No. 18-5364 (D.C. Cir. Dec. 19, 2018); cf. Sierra Club v. Morton, 405 U.S. 727, 740 (1972) (explaining that “organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process” do not allege a constitutionally cognizable injury in Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 24 of 33 17 fact).8 And since the Complaint at most describes a policy disagreement with the Department of State, which does not “directly conflict[] with [NCFA’s] stated mission,”9 PETA, 797 F.3d at 1095, it therefore cannot satisfy the most fundamental requirement of organizational standing: a concrete and particularized harm that the soft referral guidance has done to NCFA itself. B. NCFA Has Failed to Connect Any Alleged Procedural Deprivation To Any Concrete Interest or Injury. Nor does the fact that Count I alleges a failure to engage in notice and comment rulemaking rescue the Complaint from dismissal. As a general matter, a procedural violation is cognizable as an injury in fact only if a plaintiff also demonstrates that the alleged procedural violation impairs concrete interests of the plaintiff. See Spokeo, 136 S. Ct. at 1549 (“Article III standing requires a concrete injury even in the context of a statutory violation.”); Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”). Thus, to the extent that NCFA alleges that it was injured by being deprived of the opportunity to participate in 8 To the extent that NCFA’s allegation that certain countries, “such as the United Kingdom and Pakistan[,] will not terminate parental rights until the time of the final adoption hearing,” and that the soft referral guidance therefore “creates a classic Catch-22,” Compl. ¶ 43, is intended to identify an injury to ASPs – i.e., the inability to complete an adoption from these countries – this likewise fails. NCFA conflates the determination of a child’s “eligibility for adoption” with the formal termination of parental rights; the latter often precedes the former, including in Pakistan. If there were such a “Catch-22,” then under U.S. law, American families could not adopt children from Pakistan. Yet the State Department’s public records reflect the reality that Americans can and do adopt children from Pakistan—including after the issuance of the soft referral guidance. See U.S. Department of State, Bureau of Consular Affairs, Monthly Immigrant Visa Issuance Statistics, Immigrant Visa Issuances by Foreign State of Chargeability or Place of Birth (January 2019) at 47 (noting that 2 “IR4” adoption visas were issued to children born in Pakistan in January 2019), https://travel.state.gov/content/dam/visas/ Statistics/Immigrant-Statistics/MonthlyIVIssuances/JANUARY%202019%20%20IV%20Issuances %20by%20FSC%20and%20Visa%20 Class.pdf (last accessed Mar. 20, 2019). 9 The Department need not address the second prong of organizational standing, the expenditure of resources in response to the challenged government action, see Ctr. for Biological Diversity, 2018 WL 5840515, at *3, given that NCFA has not satisfied the first prong – demonstrating that the action directly conflicts with and harms its mission. In any event, the Complaint does not contain any allegations suggesting that NCFA has expended any resources in response to (let alone to counteract any purported harm done by) the soft referral guidance. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 25 of 33 18 notice-and-comment rulemaking before the issuance of the soft referral guidance, see Compl. ¶¶ 65- 66, such “deprivation” would not suffice to establish Article III standing. The D.C. Circuit has long held that an allegation of “a vibrant interest in commenting prior to agency action,” in the absence of a concrete injury, is not a “deprivation of a procedural right” that can alone establish injury in fact in the organizational standing context. Capital Legal Found. v. Commodity Credit Corp., 711 F.2d 253, 255 (D.C. Cir. 1983); Stewart, 948 F. Supp. at 1106; see also, e.g., Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1135 (D.C. Cir. 2005) (“[T]he mere inability to comment effectively or fully, in and of itself, does not establish an actual injury.” (citations omitted)). Accordingly, even if the soft referral guidance represented a change in policy such that notice- and-comment rulemaking would be required – which it does not – NCFA’s failure to identify a concrete and particularized harm to the organization, see supra Section I.A, dooms its procedural claims, as well. See Mendoza v. Perez, 754 F.3d 1002, 1012-13 (D.C. Cir. 2014) (“Plaintiffs asserting a procedural rights challenge . . . need to show the agency action affects their concrete interests in a personal way.”); Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339, 342 (D.C. Cir. 2018) (“A plaintiff ‘could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III’” (citing Spokeo, 136 S. Ct. at 1549)). II. NCFA Lacks Associational Standing. “An association has standing to bring suit on behalf of its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization’s purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Haw. Orchid Growers Ass’n v. U.S. Dep’t of Agric., 436 F. Supp. 2d 45, 50 (D.D.C. 2006), aff’d sub nom. Haw. Orchid Growers Ass’n v. Johanns, 249 F. App’x 204 (D.C. Cir. 2007) (citing Friends of the Earth, Inc. v. Laidlaw Envtl Servs., 528 U.S. 167, 181 (2000)). Here, NCFA has not established that a single one of its members has standing. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 26 of 33 19 A. NCFA Has Failed to Identify a Single Member with Standing to Sue. When an organization asserts an associational theory of standing “[a]t least one member of each plaintiff association must establish each of the three elements of standing”: that the member was injured by the challenged action in a concrete and particularized, actual or imminent, and not conjectural or hypothetical way; that the member’s injury is caused by the agency’s action rather than a third party’s independent action; and that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Bluewater Network Div. v. U.S. Dep’t of Interior, 478 F. Supp. 2d 11, 15 (D.D.C. 2007). However, “[w]hen a petitioner claims associational standing, it is not enough to aver that unidentified members have been injured. Rather, the petitioner must specifically ‘identify members who have suffered the requisite harm.’” Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Summers, 555 U.S. at 499). As relevant here, where plaintiffs have “not identified a single member who was or would be injured by [a Government action],” the D.C. Circuit has held that associational standing is lacking. Id. at 200; see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 15 (D.C. Cir. 2011) (affirming dismissal where declarations “fall short of establishing certainly impending dangers for any particular member of the petitioners’ associations”). In this case, despite alleging that “[s]ince its founding in 1980, NCFA has grown to an association of approximately 100 adoption agencies, the majority of which are accredited to facilitate intercountry adoptions,” Compl. ¶ 13, the Complaint does not identify by name even a single one of NCFA’s members. And it follows that NCFA makes no attempt to explain how any one member has standing to bring this action—a deficiency that is fatal to a claim of associational standing. See Am. Chemistry Council v. U.S. Dep’t of Transp., 468 F.3d 810, 820 (D.C. Cir. 2006) (“[A]n organization bringing a claim based on associational standing must show that at least one specifically-identified member has suffered [or will suffer] an injury-in-fact.”); see also, e.g., Ctr. for Biological Diversity, 2018 WL 5840515, at Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 27 of 33 20 *3 (“[T]he Amended Complaint can only plausibly support th[e organizational] ground [for standing] because, although it does once make reference to harm to . . . its members, . . . it never — as it must to support representational standing — specifically identifies members who have suffered the requisite harm.”); Cal. Ass’n of Private Postsecondary Sch. v. DeVos, 344 F. Supp. 3d 158, 175 (D.D.C. 2018) (“Absent the identification of a member likely to suffer an injury,” plaintiff “fail[s] to satisfy an essential requirement for establishing associational standing. That omission, moreover, is not simply a technical error.”); Envtl. Working Grp. v. U.S. Food & Drug Admin., 301 F. Supp. 3d 165, 173 n.8 (D.D.C. 2018) (allegation that twenty unnamed members had suffered a specific injury was insufficient to establish associational standing); Pub. Citizen, Inc. v. Trump, 297 F. Supp. 3d 6, 18 (D.D.C. 2018) (a threshold requirement of associational standing is “that the plaintiff-association identify at least one specific member who has suffered, or is likely to suffer, an injury in fact.”); W. Wood Preservers Inst. v. McHugh, 292 F.R.D. 145, 147-48 (D.D.C. 2013) (declining to reconsider holding that plaintiff must “identify specific member firms that have suffered the alleged harm” to establish associational standing); Californians for Renewable Energy v. U.S. Dep’t of Energy, 860 F. Supp. 2d 44, 48 (D.D.C. 2012) (for associational standing “the organization must name at least one member who has suffered the requisite harm”). The unanimity of precedent on this issue in this Circuit leaves no doubt that the absence of allegations about an ASP member of NCFA precludes this association from representing its members in this suit. NCFA’s failure to identify a single one of its hundred members in the Complaint is particularly telling in that it identified, by pseudonym, children whose adoptions were allegedly facilitated by soft referrals. See Compl. ¶ 45. These children, however, are not members of NCFA, so NCFA cannot derive standing based on any harm they are alleged to have suffered.10 And while 10 Moreover, NCFA does not specify whether the “soft referrals” described in these cases utilized one of the two practices that the soft referral guidance describes as prohibited, rather than a practice that the regulations permit. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 28 of 33 21 NCFA asserts that “[a]doption agencies . . . will experience—and indeed, already have experienced— adverse consequences as a result of the Soft Referral” Guidance, nowhere does the Complaint spell out what those consequences have been or provide any detail about which members, specifically, may have suffered them. Id. ¶ 61.11 Consequently, there is no way for the Court to conclude that these amorphous “consequences” amount to an injury in fact suffered by any individual member and caused by the guidance. The closest the Complaint comes to identifying a member who might have standing to challenge the guidance is in its allegation that State “has investigated at least one NCFA member for purported ‘non-compliance’ with the Soft Referral” guidance. Id. ¶ 60. But the Complaint offers no additional allegations about that member’s actions, nor does it name or join the member in this lawsuit. NCFA also does not allege that any adverse action was taken against this unspecified member following the investigation, or that any other injury was suffered by the unnamed member as a result of the investigation. And the suggestion that an alleged ongoing investigation might eventually result in some adverse action is speculative, not “actual or imminent.” See, e.g., Clapper, 568 U.S. at 409 (“Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.”) (quoting Lujan, 504 U.S. at 565 n.2); Ctr. for Biological Diversity v. Dep’t of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009) (holding that where petitioners could only aver that “any significant adverse effects . . . ‘may’ occur at some point in the future,” it did “not amount to the . . . ‘certainly impending’ injury required to establish standing.”). Similarly, even if an investigation alone might constitute an injury to an ASP – a contention NCFA does not advance – the paucity of 11 To the extent that NCFA alleges any injury that its members might have suffered, it alleges that such injuries are the result of an agency action not taken here – a total ban on the practice of soft referrals. But, as explained above, see supra n.5, the soft referral guidance is not a categorical prohibition on all “soft referral” practices. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 29 of 33 22 allegations about the sole investigation mentioned in this Complaint would impede the success of such a contention here. Beyond its lone reference to an investigation, the Complaint avers generally that “NCFA’s member agencies regularly made soft referrals in appropriate cases before the Department issued the Soft Referral” guidance. Compl. ¶ 20. Yet this imprecise statement does not tell the Court which of the member agencies regularly, before the guidance was issued, made soft referrals of the kind that the soft referral guidance identifies as impermissible – or indeed, if any did. As noted, the Complaint admits that there are inappropriate or “abusive” uses of the soft referral practice and suggests that its members did not use soft referrals in an abusive manner—but the Complaint does not proffer further details about which soft referrals NCFA deems abusive and which appropriate, or how that differs, if at all, from Department’s guidance. The allegations in the Complaint therefore do not allow the conclusion that the “appropriate” soft referrals that NCFA’s members previously utilized are in any way in conflict with the regulatory limitations on soft referral practices described in the guidance. Finally, even if NCFA were to allege that a specific member ASP has lost the opportunity to comment on a proposed rulemaking, such an alleged procedural deprivation, as discussed, cannot constitute an injury-in-fact unless connected to a concrete interest of that particular adoption service provider. See supra Section I.B. The Complaint’s failure to identify such a concrete interest or to name a specific member with the concrete interest therefore prevents NCFA from establishing associational standing to bring any procedural claim, as well. Consequently, NCFA has failed to establish the first of the three requirements for associational standing. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). That failure is the beginning and end of the Court’s inquiry into whether NCFA has demonstrated associational standing. B. NCFA Cannot Establish that Its Lawsuit is Germane to or That It Can Fairly Represent the Interests of NCFA Members. Lastly, it is far from clear that NCFA could satisfy the two additional requirements of Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 30 of 33 23 associational standing: that the interests it seeks to protect by bringing suit “are germane to the organization’s purpose” and that the suit does not require the participation of any of NCFA’s members. Hunt, 432 U.S. at 343. As the declaration of Hollen Frazier demonstrates, the soft referral guidance actually benefits ASPs, while also protecting the interests of children. See Declaration of Hollen Frazier ¶ 2 (filed concurrently herewith).12 Ms. Frazier, President of All God’s Children International (AGCI), an ASP and NCFA member, explains that the soft referral practices identified in the guidance delay adoptions, meaning “that the child will stay in the institution for an additional year or more,” or, “[a]t worst,” may mean the child is left “in an institution indefinitely, as another qualifying adoptive family may never be found.” Id. ¶ 2. Ms. Frazier recounts that in 24 cases over 3 years, a different ASP refused to transfer a child’s file to AGCI to share with AGCI’s home-study-approved prospective adoptive parents and instead required that the approved family “start the adoption process over by terminating their agreement with AGCI and contracting and paying new fees to the new ASP. This practice not only prolonged each vulnerable, waiting child’s stay in an institution . . . , but [also] ultimately allowed each ASP to put its own financial interests above the best interests of the child.” Id. According to Ms. Frazier, when ASPs refuse to transfer files because they are “holding” a child for a family whose home study has not yet been completed and approved, they harm other ASPs, the “held” child, and other prospective adoptive parents. Hence, by clarifying for all ASPs that “holding” a child is impermissible under the existing regulatory and statutory framework for intercountry adoptions, the guidance actually helps ASPs— including NCFA members and their client families.). To the extent that NCFA’s primary purpose is 12It is common, when evaluating claims of associational standing, for Courts to consider declarations submitted by members of the association. See, e.g., Friends of The Earth, Bluewater Network Div., 478 F. Supp. 2d at 16; Brady Campaign to Prevent Gun Violence United with the Million Mom March v. Ashcroft, 339 F. Supp. 2d 68, 75 (D.D.C. 2004). Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 31 of 33 24 generally to protect the interests of ASPs, then, NCFA will likely have difficulty demonstrating that its lawsuit is “germane” to the group’s interests. See Humane Soc’y of the U.S. v. Hodel, 840 F.2d 45, 56- 58 (D.C. Cir. 1988) (the “germaneness” prong of the associational standing inquiry requires “that an organization’s litigation goals be pertinent to its special expertise and the grounds that bring its membership together.”); see also Wash. Legal Found. v. Leavitt, 477 F. Supp. 2d 202, 212 (D.D.C. 2007).13 At a minimum, Ms. Frazier’s declaration underscores the need for an association seeking to sue on behalf of its members to identify, by name, at least one member of the association who has been directly and demonstrably injured by the government action that is the target of the association’s lawsuit—particularly where at least one member is willing to aver that ASPs are not injured by that action. See Frazier Decl.¶ 9 (“In no way has AGCI been harmed by this guidance.”). In addition, although this Circuit has held that a conflict of interest within an organization does not necessarily deprive an organization of associational standing, the plaintiff association must establish that “no internal procedural violation has been shown” in determining to bring the lawsuit on behalf of some, but not all, of its members. La. Envtl. Action Network v. U.S. EPA, 172 F.3d 65, 68 (D.C. Cir. 1999); see also Nat’l Maritime Union of Am. v. Commander, Military Sealift Command, 824 F.2d 1228, 1233 (D.C. Cir. 1987) (“[C]onflicts are typically resolved by the association’s internal procedures or political structure. . . . Courts would ordinarily uphold an association’s determination[]” to initiate a lawsuit or select a litigating position “unless it were shown that the organization’s own procedures had been violated.”). Here, Ms. Frazier raises serious questions about whether any internal procedures 13 Ms. Frazier also objects to NCFA’s allegation that the soft referral guidance will make adoptions more difficult for families and therefore will decrease the number of prospective parents willing to adopt children from abroad, as well as NCFA’s allegation that “soft referrals can mean the difference between life and death.” Frazier Decl. ¶¶ 3-4. The only reason a prospective parent who had identified a special needs child “would be precluded from adopting that particular child is if another qualified family was able to bring the child home sooner, in which case the particular child’s best interests are met.” Id. ¶ 4. Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 32 of 33 25 maintained by NCFA for associational decision-making have been followed. See Frazier Decl. ¶ 9 (“[A]s a longstanding member of NCFA, . . . AGCI was not given an opportunity to provide input or participate in any formal discussion prior to NCFA filings its complaint.”). Furthermore, some courts in this district have suggested that, where there may be a conflict among various members of a particular association, in order to establish associational standing, the association may need to join the individual members with standing to the lawsuit itself, particularly if the litigation gives rise to factual questions that might arise that only the members—not the association comprised of conflicting members—can answer. See, e.g., Am. Ass’n of Cosmetology Sch. v. Devos, 258 F. Supp. 3d 50, 69 (D.D.C. 2017) (explaining that “individual participation” of named members of the association is not necessary where “there are no apparent conflicts of interest that could arise”). Thus, multiple deficiencies of the Complaint obstruct the associational path forward for NCFA’s lawsuit. CONCLUSION For the foregoing reasons, and pursuant to Rule 12(b)(1), the Court should dismiss this Complaint for lack of subject-matter jurisdiction. Respectfully submitted this 21st day of March, 2019, JOSEPH H. HUNT Assistant Attorney General, Civil Division ANTHONY J. COPPOLINO Deputy Director, Federal Programs Branch /s/ Anjali Motgi . ANJALI MOTGI (Texas Bar # 24092864) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L St., N.W. Washington, D.C. 20530 (202) 305-0879 (tel.) | (202) 616-8470 (fax) anjali.motgi@usdoj.gov Counsel for Defendants Case 1:18-cv-02704-RCL Document 21 Filed 03/21/19 Page 33 of 33
