Eastern District of Virginia – Page 3

This is a big win–the Judge dismissed all claims, including the equal protection and substantive due process ones. In addition, there’s good language for the eventual ICWA regulations.

Here is the order.

This Court GRANTS Defendants’ Motion to Dismiss For Lack of Subject-Matter Jurisdiction and for Judgement on the Pleadings because: (1) Plaintiffs’ claims are precluded by this Court’s October 20, 2015 Memorandum Opinion in which the Court held that Plaintiffs lack standing to challenge the Guidelines, that the Guidelines are not justiciable as a “final agency action,” and that the Guidelines are non-binding interpretive rules; (2) BAF has not demonstrated any authority to support its equal protection, due process, or Indian Commerce Clause claims; (3) the 2015 Guidelines do not commandeer state entities; and (4) BAF has failed to plead a Bivens action.

(emphasis added)

And:

…even if the 2015 Guidelines were legislative rules, rather than interpretive guidelines that do not mandate state court compliance, the 2015 Guidelines still would not commandeer state entities to comply with its regulations… Just as Congress may pass laws enforceable in state courts, Congress may direct state judges to enforce those laws.

As a personal side note, there so many great people who have worked on this litigation since it was filed in May, and they all deserve thanks.

Briefing Completed in Nat’l Council for Adoption v. Jewell (Guidelines Litigation) on Motion to Dismiss

October 27, 2015Kate Fort

Hearing on the matter is set for 11/13. Government’s Reply Brief here.

Even if BAF’s claims were not precluded by the Memorandum Opinion, however, they would fail in their own right. BAF does not have standing, either for itself or to assert the interests of unspecified birth parents, nor has it alleged any basis for this Court to conclude that its claims are ripe. If adoption proceedings are underway, then the Court should abstain from hearing the present suit or dismiss the declaratory relief as contrary to the Anti-Injunction Act. BAF cannot demonstrate that “legal consequences flow” from the Guidelines so as to render them reviewable because it concedes that Defendants do not enforce the Guidelines, and makes no argument that Defendants otherwise treat them as controlling. Nor does BAF cite any binding authority for the propositions that the Guidelines are race-based, that birth parents have a fundamental right to dictate the adoptive placement of their child, that ICWA exceeds the Indian Commerce Clause, or that non-binding Guidelines may commandeer state entities. For these reasons, and because they have not alleged a basis for relief under Bivens, Plaintiffs’ claims fail for lack of subject-matter jurisdiction and as a matter of law and must be dismissed.

Previous filings here. (documents 52, 56, 64, 67)

DOJ Prevails in Partial Motion for Summary Judgment in NCFA v. Jewell (Guidelines Litigation)

October 20, 2015Kate Fort

Order was issued on September 29th, but the Memorandum Opinion was issued today.

This Court DENIES Plaintiffs’ for Partial Summary Judgment because (1) Plaintiffs lack standing to challenge the 2015 Guidelines, (2) the 2015 Guidelines are not “final agency action” within the meaning of the APA because they do not create legal rights and obligations, and (3) the 2015 Guidelines are non-binding interpretive rules not subject to APA notice-and-comment procedures.

Previous filings are here.