National Council for Adoption v. Blinken

In 2018, the Department of State (department) (defendant) updated its website with a section addressing frequently asked questions concerning international adoption. One of the answers referenced soft referrals, stating that they were a prohibited practice that might have adverse legal consequences. Many in the adoption community contacted the department for guidance on what constituted a soft referral, because that term was not one commonly used. In response, the department added a page to its website identifying two practices that constituted soft referrals, namely (1) informing prospective adoptive parents about a specific child before the child’s country determined the child was eligible for intercountry adoption and (2) matching a child to a family before the relevant home study and background checks were complete, essentially holding the child while those acts were pending by preventing the child from being matched with other families. When the department continued receiving questions, it updated the website to add a section addressing frequently asked questions about soft referrals. The answers said that informally matching a child before a home study was sometimes acceptable as long as the child’s file was not held in a manner that prevented the child’s referral to or adoption by other families. The National Council for Adoption (plaintiff) sued the department, arguing that the department had violated the Administrative Procedure Act (APA) by issuing a legislative rule without notice and comment. The department argued that its guidance regarding soft referrals constituted an interpretive rule, not a legislative rule, and a notice-and-comment process was therefore not required. The district court granted a motion to dismiss in the department’s favor. The National Council for Adoption appealed.