UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) NATIONAL COUNCIL FOR ADOPTION, ) ) ) Plaintiff, ) ) v. ) Civil No. 18-2704 (RCL) ) MICHAEL R. POMPEO, et al., ) ) Defendants. ) ) MEMORANDUM OPINION Plaintiff National Council for Adoption (“NCFA”) brings this action against defendants alleging violations of the Administrative Procedure Act. At issue are a series of written statements styled as guidance documents pertaining to soft referrals (the “soft referral guidance” or “SRG”). Before the Court are defendants’ motion to dismiss, motion for summary judgment, and motion to strike. ECF Nos. 21, 42, 60. Also before the Court is plaintiff’s motion for summary judgment. ECF No. 43. For the reasons that follow, the Court will hold that plaintiff does not have standing to bring this suit. Accordingly, the Court will grant defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court will also grant defendants’ motion to strike and deny as moot both motions for summary judgment. Background 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”). The IAA’s purpose is to “protect the rights of, and prevent abuses against, children, birth families, and adoptive parents 1 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). To facilitate Hague Convention adoptions in the United States, the IAA and its implementing regulations, 22 C.F.R. § 96.1 et seq., require adoption service providers (“ASP”) to be accredited in accordance with the statute. 42 U.S.C. § 14921(a). Under the IAA, accrediting entities, which are designated by the State Department, process prospective ASPs’ applications for accreditation and renewals of accreditation, and monitor their compliance with accreditation standards. 42 U.S.C. § 14922(a); 22 C.F.R. § 96.12. ASPs cannot provide adoption services (as defined by the IAA), including identifying a child for adoption and arranging the adoption of children by prospective adoptive parents, until they are accredited. This process can sometimes include “matching” a child with prospective adoptive parents. But the relevant governmental agency or entity of the child’s country of origin (known as the Central Authority or competent authority) bears the ultimate responsibility for making a “referral” (a formal determination that a particular child should be placed with a particular family for adoption). 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 State Department to develop standards and compliance obligations that ASPs must meet in order to obtain and maintain accreditation. See 22 C.F.R. ...
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