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Case Name A.D. v. Washburn CW-AZ-0003
Docket / Court 2:15-cv-01259-NVW ( D. Ariz. )
State/Territory Arizona
Case Type(s) Child Welfare
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 ... read more >
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.

Becca Rogers - 10/06/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Procedural Due Process
Due Process: Substantive Due Process
Equal Protection
Federalism (including 10th Amendment)
Freedom of speech/association
Discrimination-basis
Race discrimination
General
Adoption
Plaintiff Type
Private Plaintiff
Race
American Indian/Alaskan Native
White
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Title VI, Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Defendant(s) Assistant Secretary
Director
Secretary of Interior
Plaintiff Description Indian foster children represented by a "next friend" and foster parents of Indian children.
Class action status sought Yes
Class action status outcome Mooted before ruling
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 07/06/2015
Case Closing Year 2018
Case Ongoing No
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

Court Docket(s)
D. Ariz.
11/05/2018
2:15-cv-01259-NVW
CW-AZ-0003-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Ariz.
07/06/2015
Civil Rights Class Action Complaint for Declaratory and Injunctive Relief [ECF# 1]
CW-AZ-0003-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
04/05/2016
First Amended Civil Rights Class Action Complaint for Declaratory, Injunctive, and other Relief [ECF# 173]
CW-AZ-0003-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
09/29/2016
Order [ECF# 216] (2016 WL 5464582)
CW-AZ-0003-0005.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Ariz.
03/16/2017
Order [ECF# 244] (2017 WL 1019685)
CW-AZ-0003-0003.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
08/06/2018
Memorandum [Ct. of App. ECF# 10966701] (743 Fed.Appx. 823)
CW-AZ-0003-0004.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Ebel, David M. (Tenth Circuit) show/hide docs
CW-AZ-0003-0004
Owens, John Byron (Ninth Circuit) show/hide docs
CW-AZ-0003-0004
Schroeder, Mary Murphy (Ninth Circuit) show/hide docs
CW-AZ-0003-0004
Wake, Neil Vincent (D. Ariz.) show/hide docs
CW-AZ-0003-0003 | CW-AZ-0003-0005
Plaintiff's Lawyers Barnes, Brian W (District of Columbia) show/hide docs
CW-AZ-0003-0001 | CW-AZ-0003-0002 | CW-AZ-0003-9000
Bolick, Clint Daniel (Arizona) show/hide docs
CW-AZ-0003-0001 | CW-AZ-0003-9000
Dynar, Aditya (Arizona) show/hide docs
CW-AZ-0003-0001 | CW-AZ-0003-0002 | CW-AZ-0003-9000
Kirk, Michael W. (District of Columbia) show/hide docs
CW-AZ-0003-0001 | CW-AZ-0003-0002 | CW-AZ-0003-9000
Reeves, Harold S. (District of Columbia) show/hide docs
CW-AZ-0003-0001 | CW-AZ-0003-0002 | CW-AZ-0003-9000
Sandefur, Christina (Arizona) show/hide docs
CW-AZ-0003-9000
Van Cott, Courtney Christine (Arizona) show/hide docs
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Defendant's Lawyers Ennis, Christine Wild (District of Columbia) show/hide docs
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Harrison, Wendy J. (Arizona) show/hide docs
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Harvey, Judith B (District of Columbia) show/hide docs
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Johnson, John Stephen (Arizona) show/hide docs
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Kintz, JoAnn Lynn (District of Columbia) show/hide docs
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Lento, Gary N. (Arizona) show/hide docs
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McBride, Melanie Grace (Arizona) show/hide docs
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Miskinis, Steven Edward (District of Columbia) show/hide docs
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Williams, Dawn Rachelle (Arizona) show/hide docs
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Zimmerman, Joshua Robert (Arizona) show/hide docs
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Other Lawyers Belzowski, Katherine Claire (Arizona) show/hide docs
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Chen, Z W Julius (District of Columbia) show/hide docs
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Daughety, Samuel Franklin (District of Columbia) show/hide docs
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Dougherty Lynch, Erin C (Alaska) show/hide docs
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Everling, Linus (Arizona) show/hide docs
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Fort, Kathryn E (Michigan) show/hide docs
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Godfrey, Merrill C (District of Columbia) show/hide docs
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Hendershot, Michael J. (Ohio) show/hide docs
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Hunt, Hyland (District of Columbia) show/hide docs
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Kielsky, Michael (Arizona) show/hide docs
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Kohn, Samuel (District of Columbia) show/hide docs
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Murphy, Thomas L (Arizona) show/hide docs
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Newman, Matthew N (Alaska) show/hide docs
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Pongrace, Donald R (District of Columbia) show/hide docs
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Shah, Pratik A. (District of Columbia) show/hide docs
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Spruhan, Paul Wesley (Arizona) show/hide docs
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Tysse, James Edward (District of Columbia) show/hide docs
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Yost, Paula M (California) show/hide docs
CW-AZ-0003-9000

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