Case: A.D. v. Washburn

2:15-cv-01259 | U.S. District Court for the District of Arizona

Filed Date: July 6, 2015

Closed Date: Dec. 28, 2018

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Case Summary

This case is about the adoption of American Indian children under the federal Indian Child Welfare Act. On July 6, 2015, an attorney representing two Indian children as their “next friend,” and two sets of foster parents of (other) American Indian children filed this class action in the U.S. District Court for the District of Arizona. They brought the case on behalf of themselves; all off-reservation Arizona-resident children with Indian ancestry; and all off-reservation non-Indian Arizona-resident foster, preadoptive, and prospective adoptive parents in child custody proceedings involving a child with Indian ancestry. The plaintiffs sued the Assistant Secretary of the Bureau of Indian Affairs, the Secretary of the Interior and the Director of the Arizona Department of Child Safety. Represented by the Goldwater Institute and a private law firm, the plaintiffs sought declaratory judgment and injunctive relief under 5 U.S.C. §§ 701-706; 28 U.S.C. §§ 2201-2202; and 42 U.S.C. § 1983. The case was assigned to Senior Judge Neil V. Wake.

In general, the plaintiffs requested that the Court declare unconstitutional certain provisions of the Indian Child Welfare Act (ICWA) and the accompanying Bureau of Indian Affairs (BIA) Guidelines and then enjoin their application. Specifically, the plaintiffs claimed that ICWA’s transfer, active efforts, burdens of proof for removal, burdens of proof for termination of parental rights, and placement preference provisions violate the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments by treating Indian children and non-Indian adoptive parents differently than non-Indian children and Indian adoptive parents during child custody proceedings. The plaintiffs also claimed that ICWA exceeds the federal government’s power under the Indian Commerce Clause and the Tenth Amendment by regulating state court proceedings and abrogating state laws concerning foster care placement, pre-adoptive placement and termination of parental rights. Finally, the plaintiffs claimed that ICWA violates the associational freedoms under the First Amendment and that the BIA Guidelines represent unlawful agency action.

On October 29, 2015, the federal and state governments filed motions to dismiss. In their motions, the governments argued that the plaintiffs did not have standing to bring the case because their alleged injuries were theoretical and speculative. Even if they did have standing, the governments argued, the plaintiffs did not state a valid claim for relief because ICWA is constitutional and the BIA Guidelines are not final rules and therefore not agency “action." Several national child welfare programs and Indian rights organizations filed amicus briefs in support of the governments’ motions to dismiss, including the Casey Family Program, the National Indian Child Welfare Association and the National Congress of American Indians.

Before the Court could rule on the governments’ motions, the plaintiffs moved to amend their complaint. The plaintiffs were successful and filed their amended complaint on April 5, 2016. The amended complaint added Title VI of the Civil Rights Act (42 U.S.C. §§ 2000d–2000d-7) as a basis for the Court’s jurisdiction over the plaintiffs’ claims against the state government. The governments refiled their motions to dismiss immediately after the amended complaint was filed.

Shortly thereafter, the Judge Wake granted the motions to intervene of Gila River Indian Community and Navajo Nation, the tribes of the Indian children whose custody was at issue. 2016 WL 5464582. The Tribes immediately filed their own motions to dismiss, arguing (like the federal and state government) that the plaintiffs lacked standing, that their claims were foreclosed by existing Supreme Court precedent and that the Court lacked jurisdiction over non-binding agency action, including the BIA Guidelines.

On March 16, 2017, Judge Wake dismissed the case, holding that the plaintiffs lacked standing to bring the case because they had not suffered a concrete and particularized injury. 2017 WL 1019685. Judge Wake held that the plaintiffs did not specifically show that the challenged ICWA provisions delayed the placement or adoption of the children whose custody was at issue or had otherwise harmed them.

The plaintiffs appealed to the Ninth Circuit Court of Appeals, contending that the individual plaintiffs had standing to seek retrospective and declaratory relief and that the class had standing to seek prospective relief. However, as the appeal was pending, the individual Indian children whose custody was at issue were adopted. Accordingly, the Ninth Circuit dismissed the case as moot. 743 Fed.Appx. 823. The plaintiffs sought review in the Supreme Court, but the Court declined to take the case. 2019 WL 246401.

	Document
2:15-cv-01259	Docket [PACER]	Nov. 5, 2018	Nov. 5, 2018 Docket
1 2:15-cv-01259	Civil Rights Class Action Complaint for Declaratory and Injunctive Relief	July 6, 2015	July 6, 2015 Complaint
173 2:15-cv-01259	First Amended Civil Rights Class Action Complaint for Declaratory, Injunctive, and other Relief	April 5, 2016	April 5, 2016 Complaint
216 2:15-cv-01259	Order	Sept. 29, 2016	Sept. 29, 2016 Order/Opinion 2016 WL 5464582
244 2:15-cv-01259	Order	March 16, 2017	March 16, 2017 Order/Opinion 2017 WL 1019685
10966701 2:15-cv-01259 17-15839	Memorandum U.S. Court of Appeals for the Ninth Circuit	Aug. 6, 2018	Aug. 6, 2018 Order/Opinion 743 Fed.Appx. 823

ECF Number	Description	Date	Link Date / Link
1	DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 05/03/2017. Transcript ordered by 05/24/2017. Transcript due 06/23/2017. Appellants Carol Coghlan Carter, Ronald Federici and Unknown Party opening brief due 08/02/2017. Appellees Gila River Indian Community, Sally Jewell, Navajo Nation, Gregory McKay and Kevin K. Washburn answering brief due 09/01/2017. Appellant's optional reply brief is due 14 days after service of the answering brief. [10411309] --[Edited 04/27/2017 by RT] (JMR) [Entered: 04/26/2017 09:20 AM]	April 26, 2017	April 26, 2017
2	Entered appearance of Appellees Gila River Indian Community and Navajo Nation. [10414244] (RT) [Entered: 04/27/2017 04:05 PM]	April 27, 2017	April 27, 2017
3	Filed (ECF) notice of appearance of Timothy Sandefur for Appellants Carol Coghlan Carter, Ronald Federici, Unknown Party, Unknown Party, Unknown Party, Unknown Party, Unknown Party and Unknown Party. Date of service: 04/28/2017. [10416058] [17-15839] (Dynar, Aditya) [Entered: 04/28/2017 06:01 PM]	April 28, 2017	April 28, 2017
4	Filed (ECF) Appellants Carol Coghlan Carter, Ronald Federici, Unknown Party, Unknown Party, Unknown Party, Unknown Party, Unknown Party and Unknown Party Mediation Questionnaire. Date of service: 04/28/2017. [10416068] [17-15839] (Dynar, Aditya) [Entered: 04/28/2017 06:12 PM]	April 28, 2017	April 28, 2017
5	Filed (ECF) Appellants Carol Coghlan Carter and Ronald Federici Correspondence: Representation Statement. Date of service: 05/02/2017 [10419175] [17-15839] (Dynar, Aditya) [Entered: 05/02/2017 02:42 PM]	May 2, 2017	May 2, 2017
6	Added attorney Timothy Sandefur for Carol Coghlan Carter Unknown Party Ronald Federici, in case 17-15839. [10419648] (RR) [Entered: 05/02/2017 05:04 PM]	May 2, 2017	May 2, 2017
7	Filed (ECF) notice of appearance of Katherine Claire Belzowski for Appellee Navajo Nation. Date of service: 05/04/2017. [10422748] [17-15839] (Belzowski, Katherine) [Entered: 05/04/2017 03:18 PM]	May 4, 2017	May 4, 2017
8	Filed (ECF) notice of appearance of Paul Spruhan for Appellee Navajo Nation. Date of service: 05/04/2017. [10422754] [17-15839] (Spruhan, Paul) [Entered: 05/04/2017 03:21 PM]	May 4, 2017	May 4, 2017
9	Received Plaintiffs Appellants notice regarding certificate of no transcript order. [10432576] (Walker, Synitha) [Entered: 05/12/2017 12:32 PM]	May 12, 2017	May 12, 2017
10	Filed Mediation order: This case is under consideration for inclusion in the Mediation Program. By 06/14/2017, counsel for all parties intending to file briefs in this matter are requested to inform the Circuit Mediator by email of their clients' views on whether the issues on appeal or the underlying dispute might be amenable to settlement presently or in the foreseeable future. This communication will be kept confidential, if requested... This communication should not be filed with the court... The existing briefing schedule remains in effect... [10444948] (VS) [Entered: 05/23/2017 11:15 AM]	May 23, 2017	May 23, 2017
11	Filed (ECF) notice of appearance of Pratik A. Shah for Appellee Gila River Indian Community. Date of service: 06/12/2017. [10468261] [17-15839] (Shah, Pratik) [Entered: 06/12/2017 09:38 AM]	June 12, 2017	June 12, 2017
12	Filed (ECF) notice of appearance of Z.W. Julius Chen for Appellee Gila River Indian Community. Date of service: 06/12/2017. [10468279] [17-15839] (Chen, Ze-wen) [Entered: 06/12/2017 09:40 AM]	June 12, 2017	June 12, 2017
13	Added attorney Pratik A. Shah, Ze-wen Julius Chen for Gila River Indian Community, in case 17-15839. [10469776] (RR) [Entered: 06/12/2017 03:30 PM]	June 12, 2017	June 12, 2017
14	Filed (ECF) notice of appearance of Gary N. Lento for Appellee Gregory McKay. Date of service: 06/27/2017. [10488899] [17-15839] (Lento, Gary) [Entered: 06/27/2017 09:01 AM]	June 27, 2017	June 27, 2017
15	MEDIATION ORDER FILED: This case is NOT SELECTED for inclusion in the Mediation Program. [10492682] (VS) [Entered: 06/29/2017 01:49 PM]	June 29, 2017	June 29, 2017
16	Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellants Carol Coghlan Carter, Ronald Federici, Unknown Party, Unknown Party, Unknown Party, Unknown Party, Unknown Party and Unknown Party. New requested due date is 09/01/2017. [10514026] [17-15839] (Dynar, Aditya) [Entered: 07/19/2017 10:26 AM]	July 19, 2017	July 19, 2017
17	Streamlined request [16] by Appellants Carol Coghlan Carter, Ronald Federici, Unknown Party, Unknown Party, Unknown Party, Unknown Party, Unknown Party and Unknown Party to extend time to file the brief is approved. Amended briefing schedule: Appellants Carol Coghlan Carter, Ronald Federici and Unknown Party opening brief due 09/01/2017. Appellees Gila River Indian Community, Sally Jewell, Navajo Nation, Gregory McKay and Kevin K. Washburn answering brief due 10/02/2017. The optional reply brief is due 21 days from the date of service of the answering brief. [10514055] (BG) [Entered: 07/19/2017 10:33 AM]	July 19, 2017	July 19, 2017
18	Filed (ECF) notice of appearance of Christine W. Ennis for Appellees Sally Jewell and Kevin K. Washburn, Esquire. Date of service: 08/15/2017. [10544672] [17-15839] (Ennis, Christine) [Entered: 08/15/2017 09:20 AM]	Aug. 15, 2017	Aug. 15, 2017
19	Added attorney Christine W. Ennis for Sally Jewell Kevin K. Washburn, in case 17-15839. [10545749] (RR) [Entered: 08/15/2017 02:57 PM]	Aug. 15, 2017	Aug. 15, 2017
20	Submitted (ECF) Opening Brief for review. Submitted by Appellants Carol Coghlan Carter, Ronald Federici, Unknown Party, Unknown Party, Unknown Party, Unknown Party, Unknown Party and Unknown Party. Date of service: 09/01/2017. [10568022] [17-15839] (Dynar, Aditya) [Entered: 09/01/2017 04:39 PM]	Sept. 1, 2017	Sept. 1, 2017
21	Submitted (ECF) excerpts of record. Submitted by Appellants Carol Coghlan Carter, Ronald Federici, Unknown Party, Unknown Party, Unknown Party, Unknown Party, Unknown Party and Unknown Party. Date of service: 09/01/2017. [10568028] [17-15839] (Dynar, Aditya) [Entered: 09/01/2017 04:44 PM]	Sept. 1, 2017	Sept. 1, 2017
22	Filed clerk order: The opening brief [20] submitted by Appellants is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate CM/ECF. The Court has reviewed the excerpts of record [21] submitted by Appellants. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [10569120] (KWG) [Entered: 09/05/2017 01:27 PM]	Sept. 5, 2017	Sept. 5, 2017
23	Received 7 paper copies of Opening Brief [20] filed by appellants. [10574850] (SD) [Entered: 09/08/2017 03:08 PM]	Sept. 8, 2017	Sept. 8, 2017
24	Filed 4 paper copies of excerpts of record [21] in 1 volume(s) filed by Appellants. [10574943] (KT) [Entered: 09/08/2017 03:37 PM]	Sept. 8, 2017	Sept. 8, 2017
25	Filed (ECF) Appellees Gila River Indian Community and Navajo Nation Unopposed Motion to extend time to file Answering brief until 12/01/2017. Date of service: 09/20/2017. [10587302] [17-15839] (Shah, Pratik) [Entered: 09/20/2017 09:56 AM]	Sept. 20, 2017	Sept. 20, 2017
26	Filed (ECF) notice of appearance of Dawn R. Williams for Appellee Gregory McKay. Date of service: 09/20/2017. [10588313] [17-15839] (Williams, Dawn) [Entered: 09/20/2017 04:05 PM]	Sept. 20, 2017	Sept. 20, 2017
27	Filed clerk order (Deputy Clerk: GS): Granting Motion [25] (ECF Filing) filed by Appellees Gila River Indian Community and Navajo Nation; Appellees Gila River Indian Community, Sally Jewell, Navajo Nation, Gregory McKay and Kevin K. Washburn answering brief due 12/01/2017. The optional reply brief is due 21 days after the last-served answering brief. [10588458] (GS) [Entered: 09/20/2017 05:10 PM]	Sept. 20, 2017	Sept. 20, 2017
28	Terminated Wendy J. Harrison for Gregory McKay in 17-15839 (Due to incorrect ECF account information). [10588971] (SLM) [Entered: 09/21/2017 10:08 AM]	Sept. 21, 2017	Sept. 21, 2017
29	Attorney Gary N. Lento in 17-15839 substituted by Attorney Dawn Williams in 17-15839 [10589967] (RR) [Entered: 09/21/2017 04:51 PM]	Sept. 21, 2017	Sept. 21, 2017
30	Filed (ECF) Appellee Gregory McKay Unopposed Motion to extend time to file Answering brief until 12/01/2017. Date of service: 09/25/2017. [10592048] [17-15839] (Williams, Dawn) [Entered: 09/25/2017 10:32 AM]	Sept. 25, 2017	Sept. 25, 2017
31	Filed (ECF) Appellants Carol Coghlan Carter, Ronald Federici, Unknown Party, Unknown Party, Unknown Party, Unknown Party, Unknown Party and Unknown Party Correspondence: Notice of withdrawal of counsel. Date of service: 09/25/2017. [10592244] [17-15839]--[COURT UPDATE: Updated docket text to reflect correct ECF filing type. 09/25/2017 by SLM] (Dynar, Aditya) [Entered: 09/25/2017 11:24 AM]	Sept. 25, 2017	Sept. 25, 2017
32	Terminated Christina Sandefur for Unknown Party, Ronald Federici and Carol Coghlan Carter in 17-15839 [10592479] (RR) [Entered: 09/25/2017 12:27 PM]	Sept. 25, 2017	Sept. 25, 2017
33	Terminated Christina Sandefur for Unknown Party in 17-15839 [10592491] (RR) [Entered: 09/25/2017 12:29 PM]	Sept. 25, 2017	Sept. 25, 2017
34	Terminated Christina Sandefur for Unknown Party in 17-15839 [10593007] (SLM) [Entered: 09/25/2017 02:36 PM]	Sept. 25, 2017	Sept. 25, 2017
35	Filed clerk order (Deputy Clerk: GS): Granting Motion [30] (ECF Filing) filed by Appellee Gregory McKay only; Appellee Gregory McKay answering brief due 12/01/2017. The optional reply brief is due 21 days after the last-served answering brief. [10593511] (GS) [Entered: 09/25/2017 04:19 PM]	Sept. 25, 2017	Sept. 25, 2017
36	Filed (ECF) Appellee Gregory McKay Unopposed Motion to extend time to file Answering brief until 12/15/2017. Date of service: 11/29/2017. [10671826] [17-15839] (Williams, Dawn) [Entered: 11/29/2017 02:52 PM]	Nov. 29, 2017	Nov. 29, 2017
37	Filed clerk order (Deputy Clerk: GS): Granting Motion [36] (ECF Filing) filed by Appellee Gregory McKay; Appellee Gregory McKay answering brief due 12/15/2017. The optional reply brief is due 21 days after the last-served answering brief. [10673149] (GS) [Entered: 11/30/2017 11:58 AM]	Nov. 30, 2017	Nov. 30, 2017
38	Filed (ECF) Appellees Sally Jewell, Gila River Indian Community and Navajo Nation Unopposed Motion to extend time to file Answering brief until 12/15/2017. Date of service: 11/30/2017. [10674000] [17-15839] (Ennis, Christine) [Entered: 11/30/2017 06:45 PM]	Nov. 30, 2017	Nov. 30, 2017
39	Filed clerk order (Deputy Clerk: GS): Granting Motion [38] (ECF Filing) filed by Appellees Gila River Indian Community, Navajo Nation and Sally Jewell; Appellees Gila River Indian Community, Sally Jewell and Navajo Nation answering brief due 12/15/2017. The optional reply brief is due 21 days after service of the answering brief. [10677645] (GS) [Entered: 12/04/2017 04:30 PM]	Dec. 4, 2017	Dec. 4, 2017
40	Submitted (ECF) Answering Brief for review. Submitted by Appellee Gregory McKay. Date of service: 12/15/2017. [10692434] [17-15839] (Williams, Dawn) [Entered: 12/15/2017 12:45 PM]	Dec. 15, 2017	Dec. 15, 2017

Case: A.D. v. Washburn

2:15-cv-01259 | U.S. District Court for the District of Arizona

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