UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No (1:15-cv GBL-MSN)

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1 Appeal: Doc: 20-1 Filed: 01/30/2017 Pg: 1 of 2 Total Pages:(1 of 52) FILED: January 30, 2017 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No (1:15-cv GBL-MSN) NATIONAL COUNCIL FOR ADOPTION; BUILDING ARIZONA FAMILIES, on behalf of itself and its birth-parent clients, and Plaintiffs - Appellants, D.V., Birth Parent; N.L., Birth Parent; T.W., baby boy, by and through his guardian ad litem Philip (Jay) McCarthy, Jr., v. Plaintiffs, SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior; KEVIN WASHBURN, in his official capacity as Assistant Secretary of Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants - Appellees. O R D E R Upon consideration of appellant s unopposed motions to vacate judgment

2 Appeal: Doc: 20-1 Filed: 01/30/2017 Pg: 2 of 2 Total Pages:(2 of 52) and remand this case to the district court, the court grants the motion, vacates the district court s judgment, and remands this case to the district court with instructions to dismiss the case as moot. The clerk shall forward a copy of this order, accompanied by a copy of the joint motion to vacate judgment and remand to the district court. Entered at the direction of Judge Motz with the concurrence of Judge Wilkinson and Judge Duncan. For the Court /s/ Patricia S. Connor, Clerk

3 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 1 of 850 Total Pages:(1 Pages:(3 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NATIONAL COUNCIL FOR ADOPTION, on behalf of itself and its adoption agency members, and BUILDING ARIZONA FAMILIES, on behalf of itself and its birth-parent clients, v. Plaintiffs-Appellants, KEVIN HAUGRUD, in his official capacity as Acting Secretary of the United States Department of the Interior, MICHAEL S. BLACK, in his official capacity as Acting Assistant Secretary of Indian Affairs, BUREAU OF INDIAN AFFAIRS, and the UNITED STATES DEPARTMENT OF THE INTERIOR, No Defendants-Appellees. UNOPPOSED SUGGESTION OF MOOTNESS AND MOTION TO VACATE THE JUDGMENT OF THE DISTRICT COURT Lori Alvino McGill WILKINSON WALSH + ESKOVITZ 1900 M Street, N.W., Suite 800 Washington, D.C Telephone: (202) Matthew D. McGill GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C Telephone: (202) Counsel for Appellants

4 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 2 of 850 Total Pages:(2 Pages:(4 Pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 27(f), plaintiffs National Council for Adoption ( NCFA ) and Building Arizona Families ( BAF ) (collectively, plaintiffs ) respectfully move this Court to vacate the judgment of the United States District Court for the Eastern District of Virginia on the grounds that the case is moot. See United States v. Munsingwear, Inc., 340 U.S. 36, (1950). Defendants Kevin Haugrud, Michael S. Black, the Bureau of Indian Affairs ( BIA ), and the United States Department of the Interior ( Department ) (collectively defendants ) have reviewed this motion and do not oppose it or the relief requested herein. I. The Indian Child Welfare Act of 1978 ( ICWA ), 25 U.S.C , establishes minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes. 25 U.S.C On February 25, 2015, the BIA, through the Department, published Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. 80 Fed. Reg. 10,146 (Feb. 25, 2015) ( 2015 Guidelines ). Plaintiffs filed suit in the Eastern District of Virginia challenging the 2015 Guidelines as violating the Administrative Procedure Act 2

5 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 3 of 850 Total Pages:(3 Pages:(5 ( APA ), the Equal Protection Clause, the Due Process Clause, the Indian Commerce Clause, and the Tenth Amendment. NCFA moved for summary judgment on its APA claims on July 30, 2015, Dkt. No. 20, 1 and on September 11, 2015, defendants cross-moved for dismissal for lack of subject-matter jurisdiction and for judgment on the pleadings, Dkt. Nos. 50, 51. The district court denied NCFA s motion for summary judgment on its APA claims on September 29, 2015, Dkt. No. 61 (EXHIBIT A), issuing an opinion on October 20, 2015, Dkt. No. 66 (EXHIBIT B). On December 9, 2015, the district court granted defendants motion to dismiss and for judgment on the pleadings, Dkt. Nos. 69 (EXHIBIT C), 70 (EXHIBIT D). Plaintiffs timely appealed the district court s decision to this Court on February 3, On December 30, 2016, while this appeal was pending, the BIA, through the Department, published revised Guidelines for Implementing the Indian Child Welfare Act. 81 Fed. Reg. 96,476 (Dec. 1 Docket citations refer to No. 15-cv-675 (E.D. Va.). 2 Plaintiffs opening brief in this appeal is currently due January 31, 2017; defendants response brief is due March 14, 2017; and any reply is due fourteen days from service of the response brief. 3

6 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 4 of 850 Total Pages:(4 Pages:(6 30, 2016) ( 2016 Guidelines ), documents/text/idc pdf. In enacting the 2016 Guidelines, defendants expressly replace[d] the 2015 version[] of the Department s guidelines. Id. Thus, as of December 30, 2016, the object of this litigation has ceased to exist. II. An actual controversy must exist at all stages of appellate review. U.S. Bancorp Mortgage Co. v. Bonner Mall P ship, 513 U.S. 18, 21 (1994). Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss. Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979) (internal quotation marks omitted); see Munsingwear, 340 U.S. at Thus, [t]he customary practice when a case is rendered moot on appeal in this Court is to vacate the moot aspects of the lower court s judgment. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010); see also Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003) ( If a claim becomes moot after the entry of a district court s final judgment and prior to the completion of appellate review, we generally vacate the judgment and remand for dismissal. ). 4

7 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 5 of 850 Total Pages:(5 Pages:(7 This procedure is required where, among other circumstances, mootness results from unilateral action of the party who prevailed below. Bancorp, 513 U.S. at 25; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 72 (1997) (vacatur is required where unilateral action of the party who prevailed in the lower court has denied the appealing party the opportunity to seek review) (internal quotation marks omitted). As this Court has explained, [u]nder Bancorp, the principal consideration in determining whether vacatur is warranted is whether appellate review of the adverse ruling was prevented by the vagaries of circumstance or the unilateral action of the party who prevailed below. Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117 (4th Cir. 2000) (quoting Bancorp, 513 U.S. at 24 25). Defendants withdrawal of the 2015 Guidelines has rendered plaintiffs challenge to the 2015 Guidelines effectively moot, and this appeal nonjusticiable. Accordingly, this Court should vacate the judgment of the district court. See Munsingwear, 340 U.S. at 39 40; Bancorp, 513 U.S. at

8 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 6 of 850 Total Pages:(6 Pages:(8 CONCLUSION This Court should vacate the judgment of the district court and remand the case with instructions that it be dismissed as moot. Dated: January 24, 2017 Respectfully submitted, /s/ Matthew D. McGill Lori Alvino McGill Matthew D. McGill WILKINSON WALSH + ESKOVITZ GIBSON, DUNN & CRUTCHER LLP 1900 M Street, N.W., Suite Connecticut Avenue, N.W. Washington, D.C Washington, D.C Telephone: (202) Telephone: (202) Counsel for Appellants 6

9 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 7 of 850 Total Pages:(7 Pages:(9 CERTIFICATE OF COMPLIANCE I hereby certify that: 1. This motion complies with Federal Rule of Appellate Procedure 27(d)(2) because it contains 750 words, excluding the parts exempted by Rule 32(f). 2. This motion complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point New Century Schoolbook font. Dated: January 24, 2017 /s/ Matthew D. McGill Matthew D. McGill GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C Telephone: (202)

10 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 8 of 850 Total Pages:(10 Pages:(8 CERTIFICATE OF SERVICE I hereby certify that on January 24, 2017, I caused the foregoing document to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. I further certify that on January 24, 2017, an electronic copy of the foregoing document was served electronically by the Notice of Docket Activity on counsel for all parties. /s/ Matthew D. McGill Matthew D. McGill GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C Telephone: (202)

11 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: 19 of Total Pages:(11 Pages:(9 EXHIBIT A

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32 Appeal: Doc: Filed: 01/24/ /30/2017 Pg: of Total Pages:(30 Pages:(32 EXHIBIT C

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Case 1:15-cv GBL-MSN Document 31 Filed 07/31/15 Page 1 of 8 PageID# 317

Case 1:15-cv GBL-MSN Document 31 Filed 07/31/15 Page 1 of 8 PageID# 317 Case 1:15-cv-00675-GBL-MSN Document 31 Filed 07/31/15 Page 1 of 8 PageID# 317 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division NATIONAL COUNCIL FOR ADOPTION,