National Council for Adoption v. Antony J. Blinken, in His Official Capacity As U.s. Secretary of State

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2021 Decided July 9, 2021
No. 20-5158
NATIONAL COUNCIL FOR ADOPTION,
APPELLANT
v.
ANTONY J. BLINKEN, IN HIS OFFICIAL CAPACITY AS U.S.
SECRETARY OF STATE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02704)
Daniel J. Hay argued the cause for appellant. With him
on the briefs were Kwaku A. Akowuah and C. Frederick
Beckner III.
William R. Peterson and Catherine L. Eschbach were on
the brief for amicus curiae Center for Adoption Policy in
support of appellant.
Kannon K. Shanmugam, Aimee W. Brown, and William T.
Marks were on the brief for amicus curiae the Academy of
Adoption & Assisted Reproduction Attorneys, Inc. in support
of appellant.

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Benjamin J. Beaton and David Norris were on the brief for
amicus curiae Richard Klarberg in support of appellant.
Caroline D. Lopez, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Brian M. Boynton, Acting Assistant Attorney General, and
Sharon Swingle, Attorney.
Before: PILLARD and WALKER, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: Members of the National
Council For Adoption help prospective parents adopt children.
In 2018, the Department of State issued guidance barring
adoption agencies from referring certain children to certain
parents.
When the Council challenged that guidance, the district
court dismissed its suit for lack of subject matter jurisdiction
after concluding that the Council lacked standing. We reverse
that decision.
We also conclude that the guidance is a legislative rule.
And because the Department of State issued it without the
required notice-and-comment process, the guidance must be
vacated.
I
A
In February 2018, the Department of State posted to its
website a list of frequently asked questions about international-

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adoption fee schedules.1 In something of a postscript, one of
the answers mentioned that “a soft referral is not [an]
acceptable practice under the regulations and may lead to
adverse action.” J.A. 57 (cleaned up).
This sentence sparked confusion among members of the
adoption community because many of them had never heard
the phrase “soft referral.” See, e.g., J.A. 145 (“We are
unfamiliar with the term ‘soft referral.’”); J.A. 149 (“Soft
referrals . . . is a term we had never heard of prior to the recent
discussions.”) (cleaned up).
After receiving numerous questions about what
constituted a “soft referral,” State updated its website in March
2018 with a page titled “Adoption Notice: Guidance on Soft
Referrals.” J.A. 58. The webpage defined “soft referrals” as
two categories of adoption practices.
The first is the act of “informing [prospective adoptive
parents] about a specific child before the country of origin has
determined that the child is eligible for intercountry
adoption . . . , even if the [agency] does not communicate the
name of the child to the [parents].” J.A. 58.
The second — and “more common” — category is “the act
of matching a child to a family before . . . approval of the
prospective adoptive parents’ (PAP) home study and
associated background checks.” J.A. 58-59 (emphasis
omitted). According to this March Notice, adoption service
providers violate this second prohibition by “matching” an
eligible child to a prospective parent “who does not have an
approved home study, in a manner that removes that child from
1 Although there are numerous defendants, we refer to them
collectively as the “Department of State” or “State.”

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consideration by other families that the Central or competent
authority may wish to consider. This is sometimes referred to
as ‘holding’ the child.” J.A. 59.
Questions continued pouring in. So in May 2018, State
again updated its website with “FAQ on Soft Referrals.” J.A.
62-67. It said an adoption service provider may sometimes
informally match a child to prospective parents before parents
complete their home study. But the provider cannot “hold”
the child’s file for those prospective parents in a way that
(1) prevents other providers from referring the child to other
parents, (2) discourages other parents from adopting the child,
or (3) prevents authorities from considering alternative parents.
J.A. 64. The new webpage also claimed the “soft referral
guidance clarifies existing policies based on current regulations
that have been in place since 2006.” J.A. 62 (emphasis
omitted).
We refer to the February “FAQ,” March “Notice,” and
May “FAQ” as the Guidance.
B
After State issued the Guidance, the National Council For
Adoption sued State, arguing that the Guidance violated the
Administrative Procedure Act. Specifically, the Council said
the Guidance required notice and comment and was otherwise
arbitrary and capricious. After a delay outside the parties’
control, the Council proposed setting briefing deadlines, even
though State had not yet answered or otherwise responded to
the complaint. The district court agreed.
State then moved to dismiss, arguing, among other things,
that the Council lacked associational standing because its

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complaint failed to identify a member of the Council injured by
the Guidance.
In the facts section of the motion, State explained that the
Guidance only prohibited two specific types of soft referrals:
(1) matching a non-eligible child to prospective parents or
(2) matching a child to parents who haven’t completed a home
study in a way that prevents the child from being considered by
other prospective parents (i.e., holding). Other types of soft
referrals, such as matching a child to parents who haven’t
completed a home study without restricting the child from
consideration by other prospective parents, were permissible.
The Council opposed the motion to dismiss. It included
declarations from some of its members to allege that it had
standing. The Council argued, among other things, that the
declarations alleged injuries for the Council’s members
because they stopped conducting soft referrals after the
Guidance.
In reply, State claimed the declarations were insufficient
because they only generally referred to members “matching”
children to parents who had not completed home studies, which
the Guidance permitted. State said the declarations did not
specify that any member participated in the two types of
prohibited soft referrals.
While the motion to dismiss was pending, both parties
cross-moved for summary judgment in accordance with the
court’s deadlines. In addition to arguing the merits, State
reiterated — in the introduction to both its own motion for
summary judgment and its response to the Council’s — its
position that the Council lacked standing. Then, in its reply
brief, to further prove standing, the Council filed two
supplemental declarations.

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State then moved to strike the supplemental declarations,
arguing that the Council should have filed these supplemental
declarations sooner. State alternatively argued that the
supplemental declarations still failed to establish standing.
The Council filed a brief opposing the motion to strike and
arguing that State was not prejudiced by the filing of the
supplemental declarations. State didn’t file a reply.
The district court addressed these motions — the motion
to dismiss, the cross-motions for summary judgment, and the
motion to strike — all at once. National Council for Adoption
v. Pompeo, 460 F. Supp. 3d 37 (D.D.C. 2020). First, the court
agreed with State that the Guidance prohibited only two types
of soft referrals: (1) matching parents to a child not yet eligible
for adoption and (2) “holding” an adoptable child for parents
who have not yet completed their home studies by preventing
other potential parents from connecting with the child. Id. at
43-44. The court also agreed with State that the Council’s
motion-to-dismiss declarations mischaracterized the Guidance
as prohibiting all soft referrals and did not specify that any
members engaged in the two prohibited types. Id. at 44. So
the court concluded that the Council lacked standing and
granted the motion to dismiss.2
Second, the district court struck the supplemental
declarations as untimely. Id. at 50.
Third, the court denied both parties’ summary judgment
motions as moot. Id. at 50-51.
2 The district court concluded that the Council lacked both
organizational and associational standing. National Council for
Adoption, 460 F. Supp. 3d at 49. The Council did not appeal the
district court’s organizational standing decision.

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We have jurisdiction over the Council’s appeal. 28
U.S.C. § 1291.
II
First, we explain why the Council has associational
standing. 3 Then we discuss why we will exercise our
discretion to decide the merits. Last, we hold that the
Guidance is a legislative rule, which requires notice and
comment.
A
An association has standing if at least one member can
establish injury, causation, and redressability. Natural
Resources Defense Council v. EPA, 489 F.3d 1364, 1370 (D.C.
Cir. 2007). The association must also show that “the interests
it seeks to protect are germane to its purposes, and that neither
the claim asserted nor the relief requested requires that an
individual member participate in the lawsuit.” Id.
The court at times “may allow [plaintiffs] to support their
standing in their reply brief, in affidavits submitted along with
the reply brief, through citations to the existing record at oral
argument, or through additional briefing or affidavits
submitted to the court after oral argument.” American Library
Association v. FCC, 401 F.3d 489, 494 (D.C. Cir. 2005); cf.
Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018) (a
district court “must give [plaintiffs] ample opportunity to
3 We review the district court’s standing determination de novo,
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015), and its motion-
to-strike decision for abuse of discretion, Capitol Sprinkler
Inspection, Inc. v. Guest Services, Inc., 630 F.3d 217, 226 (D.C. Cir.
2011).

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secure and present evidence relevant to the existence of
jurisdiction”) (cleaned up). For example, when “the parties
reasonably, but mistakenly, believed” that they “sufficiently
demonstrated standing” or when they “reasonably assumed that
their standing was self-evident,” “good cause” may exist to
excuse delayed declarations or affidavits. Twin Rivers Paper
Co. LLC v. SEC, 934 F.3d 607, 614 (D.C. Cir. 2019) (cleaned
up).
Two circuit precedents help us decide whether to allow
supplemental declarations about standing. In one, we
accepted them. In the other, we didn’t.
In Communities Against Runway Expansion, Inc. v. FAA,
this court found standing based on supplemental declarations
filed with the petitioners’ court of appeals reply brief. 355
F.3d 678, 685 (D.C. Cir. 2004). We accepted the declarations
because they made standing “patently obvious” and
“irrefutable.” Id. And because standing was so apparent, the
petitioners’ delay did not prejudice the intervenor. Id.
Then, in Twin Rivers Paper Co. LLC v. SEC, this court
clarified that Communities Against Runway Expansion does
not broadly mean that petitioners can “prove standing for the
first time in a reply brief, so long as standing is obvious.” 934
F.3d at 614. Rather, we found it important that, in
Communities Against Runway Expansion, the petitioners tried,
but failed, to establish standing with enough specificity from
declarations attached to the opening brief. Id. The
petitioners had then submitted the supplemental declarations in
reply to definitively lock in standing, which they had nearly
established already. Id. at 614-15. The supplemental
declarations in Communities Against Runway Expansion “thus
involved new factual material tendered to shore up deficient

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individual affidavits submitted with the opening brief.” Id. at
615.
Twin Rivers Paper then distinguished Communities
Against Runway Expansion and declined to consider reply
affidavits, because (1) there was “a far less substantial showing
of standing in” the initial affidavits filed with the opening brief,
(2) the reply affidavits “raise[d] an entirely new theory of
standing,” and (3) standing was not as “patently obvious” from
the reply affidavits as it had been in Communities Against
Runway Expansion. Id. at 615-16.4
For four reasons, this case is more like Communities
Against Runway Expansion, where we accepted the
supplemental declarations, than Twin Rivers Paper, where we
rejected the supplemental affidavits.
First, the Council reasonably thought it had established
standing when it submitted its initial declarations opposing the
motion to dismiss. At least one initial declaration seemed to
describe a Council member matching children before they had
been determined eligible for adoption. See Sizemore Decl. at
¶ 6 (J.A. 34) (limiting its description of State’s guidance to the
ban on pre-eligibility referrals); id. at ¶ 8 (noting that the
agency “immediately ceased certain recruitment efforts to
comply with the guidance”). And other declarations referred
to some of the Council’s members having participated in
matching parents who hadn’t completed a home study (but not
necessarily holding children for such parents). See, e.g.,
Perilstein Decl. at ¶ 5 (J.A. 31) (“Since the ban was announced,
4 Although these two cases dealt with declarations and affidavits
attached to appellate reply briefs, they analyzed petitions for review,
meaning no initial district court was involved. The circuit court was
therefore akin to a district court assessing standing.

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we’ve received many inquiries from pre-homestudy families
about particular waiting children, but they declined to begin a
homestudy or the adoption process without some assurance that
the specific child of interest to them would be available for
them to adopt when their homestudy was completed.”). The
initial declarations thus went a long way toward showing
standing, even if they may not have affirmatively established
injury for the two types of soft referrals State prohibits. Then,
after State clung to its argument during the summary-judgment
briefing, the Council added the supplemental declarations to its
reply brief, just in case.
Second, the Council’s supplemental declarations did not
“raise an entirely new theory of standing.” Twin Rivers
Paper, 934 F.3d at 615. The supplemental declarations just
“shore[d] up” the initial ones. Id.
Third, injury and causation are patently obvious from the
supplemental declarations. For example, Daniel Nehrbass,
President of Nightlight Christian Adoptions, testified:
Nightlight participated in soft referrals of children
who were not yet found to be eligible for intercountry
adoption and soft referrals that would constitute a
“hold” of the child’s file under the Department’s
arguments in this case. But for the Soft Referral Ban,
Nightlight would have continued to participate in such
soft referrals in appropriate cases.
Nehrbass Suppl. Decl. at ¶ 3 (J.A. 275). Nehrbass’s
declaration shows that at least one member of the Council
suffered an injury due to State’s Guidance.
Fourth, just like the party opposing standing in
Communities Against Runway Expansion, State suffered no

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prejudice from the timing of the supplemental declarations’
submission. As just explained, at least one of the declarations
(Nehrbass’s) provided the precise information State had been
insisting the Council needed for standing. State “was not
prejudiced by its inability to respond to the supplemental
declarations” because the Council stated exactly what State had
been insisting on. Communities Against Runway Expansion,
355 F.3d at 685.
State’s behavior following the Council’s supplemental
declarations further demonstrates an absence of prejudice. In
passing, State argued that it was prejudiced because it wouldn’t
be able to respond to the declarations. But then State went on
to attack the declarations’ content.
Just as important as what State did is what it didn’t do. At
no point after the initial declarations did State submit evidence
to refute the standing showing. Nor did State explain what
else it might have wanted to submit to rebut the standing
showing from the supplemental declarations. Most of all,
State didn’t reply to the Council’s opposition to the motion to
strike, even though the Council’s opposition specifically
argued no prejudice. That State left the “no prejudice”
argument unrebutted speaks volumes.
Because injury was patently obvious from at least one of
the supplemental declarations, which merely “shore[d] up” the
original declarations, and because State suffered no prejudice,
we hold that the district court abused its discretion in striking
the supplemental declarations. Twin Rivers Paper, 934 F.3d
at 615; cf. Lujan v. National Wildlife Federation, 497 U.S. 871,
895-98 (1990) (holding the district court did not abuse its
discretion in declining to admit affidavits in support of standing
when filed after summary judgment briefing and hearing were
complete). And with the supplemental declarations back on

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the table, at least one of the Council’s members suffered an
injury traceable to the Guidance. So the Council met its
burden. See Mendoza v. Perez, 754 F.3d 1002, 1016 n.9 (D.C.
Cir. 2014) (“Having concluded plaintiffs sufficiently
demonstrated standing under the standards applicable at the
motion to dismiss stage, we have no trouble concluding they
also meet their burden under the applicable standard at the
summary judgment stage.”).
The Council also satisfies the redressability requirement.
“[A] party asserting a procedural injury enjoys a somewhat
relaxed test as to whether compliance with the procedural
requirement would lead to redress of the party’s substantive
injury.” Association of American Physicians & Surgeons v.
Sebelius, 746 F.3d 468, 472 (D.C. Cir. 2014) (cleaned up). In
particular, plaintiffs don’t need to show that such a procedural
right, like notice and comment, would have actually changed
the agency’s final rule. Sugar Cane Growers Co-op of
Florida v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002); see
Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
Here, the possibility that State will reconsider its soft referral
prohibitions after notice and comment is enough.
Thus, with injury, causation, and redressability in place, at
least one member of the Council — Nightlight Christian
Adoptions — has standing to sue in its own right. That’s the
first prong of associational standing.
State does not contest the other two elements of
associational standing, which the Council easily satisfies. The
Council seeks to protect the completion of adoptions, which no
one at this point questions is “germane to its purposes.”
Natural Resources Defense Council, 489 F.3d at 1370. And
nothing about the claims or requested relief requires that “an

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individual member [actually] participate in” this suit. Id.
The Council has therefore established associational standing.
B
When we reverse on threshold matters like standing, we
typically remand to the district court to decide the merits of the
case. Piersall v. Winter, 435 F.3d 319, 325 (D.C. Cir. 2006).
That said, we have discretion to take up matters not addressed
by the district court. Id. For example, in Mendoza v. Perez,
after reversing on threshold issues, this court decided the merits
because the parties asked us to, they fully briefed the merits,
another appeal was likely, the standard of review was de novo,
and the answer was clear. 754 F.3d at 1020.
So too here. The Council asked us to decide the merits
issues. State conceded at oral argument that, if the Council
has standing, there is no harm in deciding whether the
challenged Guidance required notice and comment. Oral Arg.
Tr. at 57-58. Our review of that purely legal question is de
novo. Mendoza, 754 F.3d at 1020. And its answer is clear.
Thus, remanding for the district court to decide the merits in
the first instance “would be a waste of judicial resources.” Id.
C
On the merits, the Council argues the Guidance is a
“legislative rule.” State argues that the Guidance is an
“interpretive rule.” The distinction matters because, under the
Administrative Procedure Act, legislative rules require notice
and comment, but interpretive rules do not. 5 U.S.C.
§ 553(b)(3)(A); POET Biorefining, LLC v. EPA, 970 F.3d 392,
406 (D.C. Cir. 2020).

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“A legislative rule is one that has legal effect or,
alternatively, one that an agency promulgates with the intent to
exercise its delegated legislative power by speaking with the
force of law.” Natural Resources Defense Council v.
Wheeler, 955 F.3d 68, 83 (D.C. Cir. 2020) (cleaned up).
In contrast, an interpretive rule “derives a proposition from
an existing document, such as a statute, regulation, or judicial
decision, whose meaning compels or logically justifies the
proposition.” Id. (cleaned up). “The critical feature of
interpretive rules is that they are issued by an agency to advise
the public of the agency’s construction of the statutes and rules
which it administers.” Perez v. Mortgage Bankers
Association, 575 U.S. 92, 97 (2015) (cleaned up). In that
sense, an interpretive rule explains “pre-existing legal
obligations or rights” rather than “creating legal effects.”
Natural Resources Defense Council, 955 F.3d at 83.
Under this framework, the Guidance is a legislative rule.
By expressly prohibiting certain types of soft referrals,
State intended to “speak[] with the force of law.” Id. State
does not seriously deny that violating the Guidance exposes
adoption agencies to enforcement actions. The Guidance may
cost agencies that practice the prohibited types of soft referrals
their accreditation. See 22 C.F.R. § 96.27(a) (requiring for
accreditation that agencies demonstrate “substantial
compliance with” certain specified standards); id. § 96.75
(requiring that the entity responsible for accrediting agencies
“take adverse action” against agencies not so in compliance);
id. § 96.35(a) (establishing as one such standard that agencies
ensure “that intercountry adoptions take place in the best
interests of children”); see also 82 Fed. Reg. 40,614, 40,615
(Aug. 25, 2017) (memorandum of agreement that the

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accrediting entity “will operate under policy direction from
[State]”).
State says those obligations are nothing new. By its
account, the Guidance merely clarified the types of soft
referrals State already prohibited. We disagree. State had
never before announced a categorical prohibition on the two
types of soft referrals the Guidance prohibits. In fact, it’s
doubtful State had ever even published rules mentioning “soft
referrals,” much less categorically prohibiting any. That’s
why, when the Guidance appeared on State’s website, some
adoption agencies didn’t know what a “soft referral” was.
See, e.g., J.A. 145 (“We are unfamiliar with the term ‘soft
referral.’”); J.A. 149 (“Soft referrals . . . is a term we had never
heard of prior to the recent discussions.”) (cleaned up).
In the parts of the Guidance relevant here, State never said
it was clarifying or interpreting specific provisions of a treaty,
statute, or regulation that “compel[led] or logically justifie[d]”
a prohibition on soft referrals. Natural Resources Defense
Council, 955 F.3d at 83 (cleaned up). That further illustrates
the Guidance’s novelty.
Now, on appeal, State specifically points us to “the best
interests of children” standard from 22 C.F.R. § 96.35(a), (a)(1)
(“[e]nsuring that intercountry adoptions take place in the best
interests of children,” which is “in accordance with the
Convention’s principles”). But, even assuming the types of
prohibited soft referrals are inconsistent with the best interests
of the child in most cases, the Council and amici describe
circumstances that show a categorical prohibition is far from
“compel[led] or logically justifie[d]” by the best-interests-of-
the-child standard. Natural Resources Defense Council, 955
F.3d at 83 (cleaned up). For example, is the Guidance’s rule

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always in the best interests of a child whose biological relatives
have almost completed a home study?
The notice-and-comment process makes an agency
consider those types of concerns. After that process, State
might be able to promulgate a rule — like the Guidance — that
applies to each internationally adopted child in a manner that
accords with the Administrative Procedure Act. But State
cannot pretend that the Guidance merely “explain[s]
something” that a context-specific, totality of the
circumstances standard “already required.” Mendoza, 754
F.3d at 1021.
Finally, State says the Guidance is implied by the
regulatory context for international adoptions. See, e.g., 42
U.S.C. § 14923; 22 C.F.R. Part 96. But the only parts of that
context on which State relies are the requirements that a child
be determined eligible for adoption and a home study be
completed before an adoption is finalized. Soft referrals are
consistent with those requirements. Nothing about the home
study statute or regulations, for instance, necessitates home
studies before soft referrals. They don’t even mention soft
referrals. They just require home studies before a child is
placed in the home. State’s argument ultimately hinges on the
best-interests-of-the-child standard, which again does not
compel or logically justify the Guidance.5
5 State and the Council argue over whether, before the Guidance,
State and the accrediting entity sometimes took adverse actions
against adoption agencies over soft referrals. But either way, State
does not argue that those specific adverse actions compelled the
Guidance as a categorical rule or created a legal effect that the
Guidance merely explained. Instead, State says those actions
suggest that a pre-existing obligation already existed. But as
explained above, under the best-interests-of-the-child standard, no
such categorical obligation existed.

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To sum up, the Guidance is a legislative rule because it
makes new law by banning two types of soft referrals. It
therefore required notice and comment.6
* * *
We reverse the judgment of the district court and remand
for the court to enter an order vacating the Guidance and for
other action consistent with this opinion.
6 Because we vacate on procedural grounds, we do not reach the
Council’s substantive challenge to the Guidance. See Natural
Resources Defense Council, 955 F.3d at 83 (declining to decide the
arbitrary-and-capricious question after determining the rule required
notice and comment).

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