California Tribal Families Coalition v. Azar

Background

The plaintiffs—California Tribal Families Coalition, Yurok Tribe, Cherokee Nation, Facing Foster Care in Alaska, Ark of Freedom Alliance, Ruth Ellis Center, and True Colors, Inc.—challenged a 2020 rule issued by the U.S. Department of Health and Human Services (HHS). The rule revised the Adoption and Foster Care Analysis and Reporting System (AFCARS), through which state and tribal agencies provide HHS’s Administration for Children and Families with data about children in foster care or adopted through an agency.

The plaintiffs sued under the Administrative Procedure Act (APA), arguing that HHS acted arbitrarily and capriciously—that is, without a sufficiently reasoned explanation—when it removed data elements added by a 2016 rule. The challenged removals concerned information about state compliance with the Indian Child Welfare Act (ICWA) and information about the sexual orientation of children, foster parents, adoptive parents, and legal guardians. The 2016 rule never became effective because the 2020 rule took effect instead.

The parties filed competing motions for summary judgment, asking the court to decide the APA claim based on the administrative record. Defendants also asked the court to voluntarily send the matter back to HHS without setting aside the 2020 rule.

ICWA-Related Data Elements

The 2016 rule added AFCARS questions about whether agencies investigated whether a child was an Indian child, whether children and certain adults were tribal members, and whether state-court proceedings followed ICWA and related regulations. The 2020 rule retained questions about agency inquiries, whether there was reason to know a child was an Indian child, tribal membership, and notice to the child’s tribe. It removed questions concerning actions taken by state courts, including transfer requests, court findings, qualified-expert-witness testimony, active efforts, and placement preferences.

The plaintiffs argued that HHS improperly focused on the reporting burden and failed to consider the benefits of collecting the removed information. The court disagreed. It noted that most states commenting on the proposal supported removing the elements because of the additional work and expense, while tribes, advocacy groups, two states, and many other commenters supported retaining them because the information could help monitor ICWA compliance and identify children who might not receive ICWA protections.

The court found that HHS considered both sides. HHS explained that the retained elements provided important national information, while the removed elements sought detailed information about court actions that was too specific for a national data set and better suited to qualitative review. HHS also identified other review and grant programs as ways to evaluate state compliance. The court held that HHS’s balancing of burdens and benefits was adequately reasoned and that the plaintiffs were not entitled to summary judgment on this part of the claim.

Sexual-Orientation Data Elements

The plaintiffs argued that the governing statute required HHS to collect sexual-orientation information as part of comprehensive national information about the demographic characteristics of children and their parents. The court rejected that argument. It found that the statute did not clearly define “demographic” to require collection of sexual-orientation data, and that the statutory requirements also directed HHS to avoid unnecessary diversion of agency resources and ensure that collected data were reliable and consistent.

The court also relied on the history of AFCARS. HHS had not collected sexual-orientation information for more than twenty years, and Congress had amended the statute during that period without otherwise changing the relevant provision. The court concluded that sexual-orientation data collection was not statutorily required.

The court further rejected the plaintiffs’ alternative argument that HHS acted arbitrarily and capriciously in removing the data elements. HHS considered comments stating that self-reported information from youth might be incomplete or unreliable. HHS also relied on an Office of Management and Budget report discussing difficulties in measuring sexual orientation and gender identity among adolescents, including uncertainty about terminology and nonresponses. The court held that HHS adequately explained why it viewed the information as ineffective for creating a reliable national picture and why the benefits did not outweigh the need for accurate data.

Disposition

The court denied plaintiffs’ motion for summary judgment, granted defendants’ motion for summary judgment, and denied as moot defendants’ motion for voluntary remand without vacatur. The 2020 AFCARS rule therefore remained in effect as addressed by the order.