Nat'l Council for Adoption v. Jewell

156 F.Supp.3d 727

National Council for Adoption, Building Arizona Families on behalf of itself and its birth-parent clients, birth parents D.V. and N.L., and baby boy T.W. by and through his guardian ad litem Philip (Jay) McCarthy, Jr., Plaintiffs,

v.Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior, Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs, Bureau of Indian Affairs, and the United States Department of the Interior, Defendants.

Case No. 1:15–cv–00675–GBL

United States District Court, E.D. Virginia, Alexandria Division.

Signed October 20, 2015

Jacob Stephen Siler, Gibson Dunn & Crutcher LLP, Washington, DC, for Plaintiffs.

Dennis Carl Barghaan, Jr., United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION AND ORDER

Gerald Bruce Lee, United States District Judge

THIS MATTER is before the court on Plaintiffs' National Council for Adoption, Building Arizona Families, on behalf of itself and its birth-parent clients, birth parents D.V. and J.L., and baby boy T.W. by and through his guardian ad litem Philip (Jay) McCarthy, Jr.'s (“Plaintiffs”) Motion for Summary Judgment on the Administrative Procedure Act (“APA”) Claim¹ (Doc. 20). This case concerns Plaintiffs' claim that Defendants violated the notice-and-comment requirements of the APA by issuing the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10, 146 (Feb. 25, 2015) (“2015 Guidelines”). Defendants argue that the 2015 Guidelines are non-binding, interpretive rules which are not subject to the APA's notice-and-comment requirements. Plaintiffs' urge the Court to vacate the 2015 Guidelines and invalidate the 2015 Guidelines as a matter of law.

The issue before the Court is whether the 2015 Guidelines are invalid because they were issued in violation of the notice-and-comment requirements of the APA.

The Court DENIES Plaintiffs' Motion for Summary Judgment for three reasons. First, this court does not have subject matter jurisdiction over the APA claim because Plaintiffs lack standing to challenge the 2015 Guidelines. Second, the 2015 Guidelines are not a “final agency action” within the meaning of the APA because they do not create legal rights and obligations. Third, the 2015 Guidelines are non-binding interpretive rules and are therefore not subject to APA notice-and-comment procedures.

I. BACKGROUND

This case arises from Plaintiffs' contention that Defendants Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior, Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs, the Bureau of Indian Affairs, and the Department of the Interior, violated the Administrative Procedure Act (“APA”) 5 U.S.C. §§ 551 –706. Plaintiffs allege that the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings that were developed by the Bureau of Indian Affairs (“BIA”) and issued by the Department of the Interior (“DOI”) on February 25, 2015, 80 Fed.Reg. 10,146 (Feb. 25, 2015) are invalid because they were issued in derogation of the notice-and-comment requirements of the APA, 5 U.S.C. § 553.

Plaintiff National Council for Adoption (“NCFA”) is a non-profit, national adoption policy organization with its headquarters and principal place of business in Alexandria, Virginia (Doc. 1–5, 10:1–6). Plaintiff Building Arizona Families is a non-profit adoption agency headquartered in, and licensed by, the State of Arizona (Doc. 1–5, 11:1–6). Building Arizona Families is suing on its own behalf, and on behalf of its birth-parent clients who are frustrated by the 2015 Guidelines that seek to implement the Indian Child Welfare Act (“ICWA”)'s hierarchy of placement preferences regarding birth-parent client's decisions to place their children, classified as “Indian children,” into adoptive homes. Id. Plaintiffs D.V. and N.L. are birth parents of a child who is an “Indian child” under ICWA because D.V., the child's father, is an enrolled member of the Pascua Yaqui Tribe located in Arizona and both parents, D.V. and N.L. are residents of Arizona and do not reside on an Indian reservation (Doc. 1–5, 12:1–8). D.V. and N.L. selected an adoptive placement that is not within ICWA's placement preferences. Plaintiff Phillip (Jay) McCarthy, Jr. is a resident of Arizona and is the court-appointed guardian ad litem from baby boy T.W., who is an “Indian Child” pursuant to the ICWA, because he is an enrolled member of the Navajo Nation (Doc. 1–6, 13:1–7). T.W.'s foster parents are not a preferred placement under the ICWA or the 2015 Guidelines. Id.

Defendant Sally Jewell is the Secretary of the United States Department of the Interior (Doc. 1–6, 14:1–2). Defendant Kevin Washburn is the Assistant Secretary for Indian Affairs at the Bureau of Indian Affairs within the United States Department of the Interior (Doc. 1–6, 15:1–3). Defendant Bureau of Indian Affairs is a federal agency within the Department of the Interior. (1–6, 16:1–2). Defendant Department of the Interior is a federal executive department of the United States (Doc. 1–6, 17:1–2).

Congress enacted the Indian Child Welfare Act (“ICWA”) to address “ ‘the consequences to Indian Children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ ” Adoptive Couple v. Baby Girl, ––– U.S. ––––, 133 S.Ct. 2552, 2557, 186 L.Ed.2d 729 (2013) (quoting Miss Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) ). The ICWA applies to “child custody proceedings” (defined as foster-care placements, terminations of parental rights, and preadoptive and adoptive placements) involving an “Indian child,” which is defined as “unmarried persons who is under age 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe.” 25 U.S.C. §§ 1903(1), (4). On November 29, 1979, the Bureau of Indian Affairs (“BIA”) issued guidelines representing the BIA's interpretation of ICWA and providing procedures designed to “help assure that rights guaranteed by the Act are protected when state courts decide Indian child custody matters.” 44 Fed.Reg. 67, 584 (1979). The BIA made it clear in the introduction of the guidelines that they were meant to be simply guidelines, and that they were not binding and were distinguishable from any binding agency regulations. Id. The guidelines stated, “When ... the Department writes rules or guidelines advising some other agency how it should carry out responsibilities explicitly assigned to it by congress, those rules or guidelines are not, by themselves, binding.” Id.

On February 25, 2015, the BIA updated its guidelines, but did not include the same language in the 1979 introduction which stated that the guidelines were not binding. Instead, the BIA explained that the 2015 Guidelines “promote compliance with ICWA's stated goals and provisions by providing a framework for State courts and child welfare agencies to follow.” 80 Fed.Reg. 10, 146–147. In preparing the updated version, the BIA invited comments from federally recognized Indian tribes, state-court representatives, and organizations concerned with tribal children, child welfare, and adoption. Id.

Soon after issuing the 2015 Guidelines, the BIA initiated a notice-and-comment rulemaking on March 20, 2015 to promulgate formal regulations to implement the ICWA (Doc. 48, 7). The BIA stated that the formal rulemaking was being proposed for the express purpose of issuing regulations that would “incorporate many of the changes made to the recently revised guidelines ... establishing the Department's interpretation of the ICWA as a binding interpretation to ensure consistency in implementation of ICWA across all states.” Proposed Rule: Regulations for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 14,880, 14,881 (Mar. 20, 2015) ; (Doc. 48, 2). Plaintiffs, National Council for Adoption and Philip (Jay) McCarthy, Jr., submitted comments on the proposed regulations (Doc. 48, 20). Nonetheless, Plaintiffs allege that the 2015 Guidelines are legislative guidelines which make them binding and that as binding “legislative rules,” the BIA should have followed the APA's note-and-comment procedures before issuing them.

On May 27, 2015, Plaintiffs' filed a Complaint seeking a judgment that the 2015 Guidelines violate the APA and the United States Constitution, an order setting aside the 2015 Guidelines, and injunctive relief ordering Defendants to withdraw the 2015 Guidelines (Doc. 16, 9:1–5). Plaintiffs also sought a declaratory judgment that the child custody provisions of the ICWA, 25 U.S.C. §§ 1911 –1923, violate the United States Constitution and accordingly cannot be applied to them. Id. On July 30, 2015 Plaintiffs filed a Motion for Summary Judgment on APA Claim and a Memorandum in Support of Plaintiffs' Motion for Summary Judgment (Doc. 20–21). On September 1, 2015, Defendants filed Defendant's Memorandum of Law in Opposition to Plaintiffs Motion for Partial Summary Judgment (Doc. 48.). On September 14, 2015, Plaintiffs filed its Reply in Support of Plaintiff National Council for Adoption's Motion for Summary Judgment on APA Claim (Doc. 54.). Plaintiff's Motion for Summary Judgment is now properly before the Court.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Boitnott v. Corning, Inc., 669 F.3d 172, 175 (4th Cir.2012) (citing Anderson...