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Number 20-5158, National Council for Adoption, Appellant, versus Anthony J. Blinken in his official capacity as U.S.

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Secretary of State at L. Mr. Hay for the Appellant, Ms.

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Lopez for the Appellees.

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Morning.

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Morning, Your Honor.

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You may proceed.

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May it please the Court, Daniel Hay, for the Appellant, National Council for Adoption.

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In this litigation, NCFA challenges on behalf of its members agency guidance that impose new obligations, requirements, prohibitions, and compliance requirements on all accredited adoption service providers without notice and comment and without fully considering the far-reaching and harmful consequences of the rule it adopted.

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The threshold question in this appeal is whether association of the very adoption service providers being regulated as standard challenge in that regulation.

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Under this court precedent, the answer is plainly yes.

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NCFA standing is self-evident because its members are the object of the rule.

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And even if it weren't self-evident or even if there's some question about who the object of the rule is, NCFA amply demonstrated how this rule harmed its members and subjects them to sanctions for engaging in long-standing, common and beneficial adoption practices.

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In addition, and for many of the same reasons that NCFA is standing, the rule is also invalid.

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On the standing point, Mr. Hay, I think the question is whether the declarations are sufficiently specific in establishing that these agencies

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engage in the precise band types of practices.

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Can you identify where you would say there's the most specific identification of recency, of actual sort of frequency of these cases?

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There's a lot of quite on point, but also very general statements in the declarations.

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Certainly, and it might be helpful to look at each of the different prohibitions separately.

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So first, there's a prohibition on what we've called pre-eligibility soft referrals, which is any discussion of a child, even anonymously, before that child has been deemed eligible for inter-country adoption by his or her country of origin.

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As our declarant and as the record makes clear, this creates a catch-22 in countries like Taiwan, the United Kingdom, Uganda, Nigeria, and Pakistan.

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where eligibility is not determined until a child, until an adoptive family or parent has been identified and is pretty far along in the adoption process.

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As far as specific references, NCFA member Mary Mu at J-150 talks about in Taiwan that the country, that there is no documentation that indicates children are eligible for adoption until after a parent has been identified.

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Similarly,

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in their declarations, Lucy Armistead and Robin Sizemore at J 13 and 33 respectively, talk about their agency's practices in non-hate countries where children are not made eligible for adoption until after adopted families in the process.

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Both of these members in a particular Ms.

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Sizemore emphasize their work in these types of soft referrals and say that they engage in these referrals prior to the rule going into effect.

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and they have ceased doing it and would resume doing so, or the rule vacated.

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The other- In the Armistead Declaration, you're looking at which particular paragraph that you think is most specific and on point in describing the organization's involvement in this kind of pre-eligibility referral.

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Sure, so I think six and seven of the Sizemore Declaration is where she speaks most clearly to it.

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When she talks about what prohibition she's referring to, she only mentions the prohibition on pre-eligibility soft referrals.

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She says that her agency would ethically and transparently use these soft referrals prior to the rule going into effect and would resume making such matches when doing so within the child's best interest were to be vacated.

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So I'm just trying to,

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really develop what I think the district court was concerned about.

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And I know in part, and maybe less with the pre-eligibility than with the match part, it was concerned that the rule didn't even apply, sort of more by its logic.

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I think that that argument is hard to see preventing standing on the pre-eligibility

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practice.

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But here, for example, in the paragraph you point to, it's still pretty general.

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Prior to February 13, 2018, ABI occasionally would make, ABI would consider, ABI would perform.

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And it's very general.

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We don't know

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a decade prior, we don't know how frequently, it's just, you know, when we have standing analysis that is, you know, requires it be imminent and it's, I'm just, you know, trying to really pin down what your best case is for the concreteness and the actually impending nature of the injury that's identified in these declarations.

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Certainly, and you know there's a bit of a challenge because there's confidentiality concerns about discussing specific closed adoptions and it's impossible to predict what adoptions may come in, these are as Miss.

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Miss Sizemore mentioned, these are primarily non Hague countries and.

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adoptions in countries that are not signatories to the Hague tend to be more unpredictable.

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And every adoption truly is different because you don't have a governing international system.

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What might help here also is the supplemental declaration of Dr. Daniel Nirbos at J275, where he talks about his agency's work and consistent work in Uganda, in Nigeria, and how those countries do not make eligibility terminations, not just

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prior to a family being identified, but a family actually goes to the country, meets the child, cares for the child, and then after some period that could be as long as a year, goes to court, and the court makes an eligibility determination and approves the child's adoption.

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And so there's a good deal of specificity in Dr. Nirabot's declaration about those two countries in particular and their unique, their specific requirements for eligibility.

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As for the other prohibition on holding,

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We've mentioned our brief that the declaration of Ms.

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Perlstein and J31 gives the clearest statement of harm where she says that since the rule went into effect, families have come to her agency who want to adopt a specific child and can't because she can't give some assurance that the specific child of interest would be available with them to adopt at the end of their home study.

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The district court found this to be too vague because Ms.

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Perlstein

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didn't explain what she meant by some assurance, but she did.

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She said some assurance the child would be available.

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I think on its face, it's described a hold and certainly read in the light most favorable to NCFA and in favor of standing, this describes a hold.

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But if there were any question, Ms.

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Perlstein submitted a supplemental declaration saying that

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She was in fact talking about a whole and that arguments about the scope of the role could have no bearing on her testimony that the J 278 paragraph for so I think that that shows that this is a practice that our members are engaging in.

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In particular in China and this is, I think you asked a question about frequency.

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It's hard to gauge specifically frequency.

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But I can say that soft referrals are used overwhelmingly in special needs adoptions where children need oftentimes specific advocacy to find families who are willing and equipped to take on the The challenges of caring for a child with severe medical or developmental needs or taking on a child who is

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near the age of leaving the foster care system in his or her country.

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And these adoptions often, in fact, Hague's guide to good practice document recommends that agencies should, what's called an adoption terminology, reverse the flow, meaning identify a child and advocate for the child to try and find a family and then begin the home study process because when you

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when you are advocating for children, it's oftentimes the best approach to look for children, for families who may have experience with a special need, have a specific moral or religious calling to care for children who have special needs.

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And these people may not be actively looking for an adoption and may not have started the home study process.

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I guess one of the questions is why would one not be able

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Well, you can line up and do the home study for such a family, but your point is that they might be willing faced with an individual child in a way that they wouldn't be willing to be open to being considered more generally as an adoptive family.

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So imagine a case where a family has a child with, let's say a bleeding disorder and is interested in adopting another child with the same condition and finds out that, or it finds out there was a child in a foreign country who has a disorder.

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and needs care.

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And that family goes to an adoption agency and says, we want to adopt this child because this is the same condition that we're experienced with.

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We think it would be great to have siblings who have the same condition.

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And the adoption agency says, okay, we're going to put you through a process that costs thousands or tens of thousands of dollars.

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It's invasive.

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We're going to go through your finances, go through your criminal background checks, talk to your employers and your friends and your family, inspect every corner of your house.

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at the end of this long invasive and expensive process, maybe you can adopt a child that you came to us for, or maybe you'll adopt some kid who has a different condition or no condition at all.

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A lot of families, particularly families who are of modest means, aren't able to make that commitment.

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There are families who make the decision to expand their family through adoption, go through the home study, and then look for the child or children that will add to their family, but that's not

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the way that every adoption started.

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It's oftentimes not the way adoption of kids with special needs begins, which is exactly why countries like China have created special programs that allow these pre-approvals to occur to allow- I'm sorry to interrupt, but how would someone learn about that child if they hadn't been approved, if the child hadn't been approved?

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As a child, I hadn't been approved, you're saying?

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Yeah, going back to pre-eligibility.

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I understand, right, that there are these two.

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And you were talking about when the family hasn't yet been cleared.

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Certainly.

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And this may be helpful clarification.

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So when we're talking about eligibility, we're talking specifically about the regulatory eligibility for inter-country adoption.

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And this is either a judicial or administrative process in every country determining not just that the parent, that the child is adoptable, meaning the parents are dead or

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no longer competent, but also that inter-country adoption in particular is in that specific child's best interest, which requires the determination that they're not likely to find an adoptive family within the country of origin.

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So in many countries, and Ms.

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Mu talks about in Taiwan in particular, they make a preliminary determination that the child is adoptable and that allows agencies to begin advocating

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But the actual determination that they're eligible for inter-country adoption isn't made until the end.

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And note, this is actually what's common in the United States in foster care adoption.

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When a child is committed to the care of foster care, parental rights aren't terminated because the hope is that the parent who may be incarcerated or in some situation where he or she can't care for the child, the hope is that they will get to a point where they can be reunited with their child.

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If that doesn't happen and the course of terminated adoption is in the child's best interest, then at the very conclusion, the court makes an eligibility determination, severs parental rights, and transfers rights to the new parents.

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It's very common to separate this initial adoptability decision from the actual eligibility for inter-country adoption.

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And in addition to the Mr. Hey, you described the process for home studies long invasive and expensive.

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Can you expand on that a little bit?

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How many hours would you estimate and adopt it family has to spend on this process before the home study is completed?

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Certainly.

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So there's education requirements that I believe are a minimum of 20 hours, and that's just classroom time.

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There's also homework and additional readings.

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A lot of agencies will have supplemental requirements about specific countries or specific needs.

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And then that's part of the home study.

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In addition, there is multiple meetings with social workers, at least three meetings.

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You have to provide an extensive binder of documentation of every

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legal birth certificates that have been verified and background check for every country that has been, every state where you've lived.

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You also have to write statements about yourself, your family, answer numerous questions.

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So I'm not sure the exact requirement you're on.

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I'd probably guess, you know, well over 50, possibly up to a hundred hours.

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I think the Center for Adoption Policy Amicus brief mentions that the average cost for home studies is around seven or $8,000.

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It can often be much more, particularly for

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families who have moved around a lot and have to do more state checks or for more intensive special needs adoptions where there's specific training or consultations with doctors.

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That's helpful.

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And then just in terms of how a hold works, my impression from the record and from the briefing is that the adoption agency

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will do one of two things or maybe both.

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And you tell me which of these they do.

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Because once they put a hold on a child, they no longer tell other perspective adoptive parents that that child is available.

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Or they no longer let other adoption agencies know about that child.

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Is it one of those or both of those?

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I think it's both of those and part of it will depend on what the country's requirements are.

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What Richard Clarberg explained in his amicus brief is that a match and a hold are really two sides of the same coin where an adoption agency will make a match.

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And if the foreign country approves a hold, then the foreign country will no longer make that child available to other adoptive families until the adoption is complete or until

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the family either chooses not to go for the adoption or the hold period expires.

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I think, in particular, if you look at J-151, I think this is an awesome email from Ms.

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Meraz, who's an NCFA member, who talks about how when a match is made, the country will no longer make the file available to other families, China in particular.

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a representative of the Chinese child welfare agency at J165 talks about locking files.

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So it really depends on what the foreign country will do.

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But yeah, so once the agency makes a preliminary match, a soft referral, they will stop seeking other families because it doesn't make sense to begin recruiting more families, just tell them somebody else is ahead of you in line.

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Let me go.

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Go ahead.

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I was gonna change topics, so.

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I was just going to ask that I thought the target of the hold rule was more when an agency is holding, contrary to the ability of the

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of the foreign country to make a sooner match, for example, or make the file available to other potential agencies or parents.

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So you describe the foreign country approving a hold.

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And I didn't see that as the principal target of the rule, actually.

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So what the rule says is that this guidance applies regardless of the actions of the foreign country.

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And in fact, at the State Department, after briefing was completed in December of 2019, had to issue a clarification recognizing that its initial guidance described a broader range of conduct than it intended and said that participation in a program approved by a foreign country does not guarantee that you are complying here.

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So it's a baseline requirement.

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You have to comply with what the foreign country requires.

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But in addition, it goes further and says you can't do anything to discourage or dissuade another family or another agency from adopting.

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And that's very broad terminology that state hasn't explained how far it goes.

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It's telling people we have a family who has their heart really set on this kid and is far along in the process.

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That would be discouraging to me if I was a second family.

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I would feel bad about going forward and possibly upsetting that match.

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A state has also said there are limitations of what we can say to foreign countries, what we can advocate for in those countries.

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And maybe terminologically, the idea of a agency making a hole doesn't make any sense in this context, because it's foreign countries who determine whether to accept a match, foreign countries who determine whether they will allow a file to be held for a child.

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Ultimately, but an agency can, as a practical matter, control information, right?

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I don't believe so, because an agency can always go to the foreign country and say, you know, we're interested in this child.

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It's not as though files are unique.

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These are electronic files where if a country chooses to send it to one agency, they could also send it to another agency.

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I think the real backdrop here is that foreign countries, and China in particular, have found it effective to assign files to specific agencies so that one agency is putting all of their weight behind

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advocating for a child, rather than having agencies recruiting multiple families, having multiple families invested in one child, it makes much more sense for China, which has an interest in making sure all of its children are adopted to spread out the work and make sure every child is being advocated for.

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And the effects of this rule, as explained by our amici and in our brief, have been unfortunately devastating for inter-country adoption.

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In China in particular, at footnote 12 of our brief, we note that

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In the first fiscal year, this rule went into effect.

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Adoptions from China alone dropped 57%.

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And that is the country with which we do the most adoptions every single year.

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And the country that our members, in particular, Ms.

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Perlstein, have said has been the most affected by this because there has been a longstanding and very successful program to advocate for special needs kids.

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And agencies are now limited in their ability to fully participate.

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Where's the 57% figure?

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You just, you mentioned, I think, but I mean- Yeah, that's the footnote 12 of our opening brief and it's from

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The State Department puts out annual reports about adoption.

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So we compared the fiscal year prior to the rule going into effect in the fiscal year after.

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And just to be, this was all pre-COVID, which has obviously had another effect on adoption.

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But these numbers, I think, stopped in September of 2019.

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I know, please, Judge Pillard.

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You also had mentioned that as harm the compliance obligations, maintaining documentation.

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But that seems that the guidance is pretty clear that it's only encouraging the maintaining of documentation.

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That alone wouldn't support standing if we didn't have the effect directly on the practices of the agencies, would we?

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I'm not sure that's true.

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I mean, it encouraged in the same way the IRS encourages me to hold on to my tax returns.

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But it's not just in the guidance that these compliance obligations come in.

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Agencies have the burden to show that they are eligible for accreditation.

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And if there is a question, a complaint, a spot check by the accrediting entity, they have the burden to show that they are complying with the rule.

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The State Department has entirely delegated sole authority for

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accreditation adverse action to a third party accrediting entity.

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It's currently an entity called IAAMI.

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And that the only control the State Department exercises is through a regulation and contract that says the accrediting entity has to follow guidance as though it were equal to a legislative rule that we cite the specific Federal Register provision for the contract in our brief.

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In addition, this software rule purports to interpret a provision that state itself has deemed a mandatory requirement, meaning that if an agency doesn't meet 96.35 best interest, it cannot be accredited.

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And the accrediting entity has no discretion.

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At 22 CFR 96.27A, it must deny accreditation to an agency that seeks accreditation and violates this software rule.

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and 22 CFR 96.71B, if it finds an accrediting entity has violated the software rule, it must take adverse action.

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And what the adoption attorney's amicus brief explains at page 13 is that the accrediting entity is currently making demands of agencies to show specifically when they began

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or to document that they are complying with the rule.

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So these compliance obligations run to every agency.

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They have to show not only that they follow in every instance the rule and can lose their accreditation if they don't.

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They also have to show that their policies comply with it.

[00:22:16] Speaker 01:
And that's exactly what Sarah Morales talks about at J-255 and 257, where she shows she's changed her policies to comply with this autofurl rule.

[00:22:28] Speaker 02:
Mr. Hay.

[00:22:30] Speaker 02:
We haven't talked about whether the district court erred in striking the supplemental declarations.

[00:22:37] Speaker 02:
My first question is, would you agree that motions to strike only apply to pleadings and that these declarations weren't pleadings?

[00:22:47] Speaker 01:
Certainly, Your Honor.

[00:22:48] Speaker 01:
I know the motion to strike has been used oftentimes for evidentiary purposes, but this wasn't a 12-F motion to strike.

[00:22:54] Speaker 01:
That's correct.

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Should, well,

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this may or may not go to whether it was appropriate to strike them or not, or why didn't you just, why didn't you file them earlier?

[00:23:11] Speaker 01:
So we didn't file them earlier for a few reasons.

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The first is that we reasonably believe that our standing was both self-evident and established based on the initial declarations.

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They were filed in response to something states said in its opposition to our motion for summary judgment, where they said NCFA still has not identified a member

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who has engaged or would engage in the practice.

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That was an incorrect statement.

[00:23:33] Speaker 01:
We believe that it misinterpreted our declaration, but rather than fight about what the declarations mean and what they really meant to say, we let the declarants speak for themselves.

[00:23:42] Speaker 02:
We identified- Hadn't they first said that in their motion to dismiss?

[00:23:47] Speaker 01:
No, because we hadn't submitted the declarations yet.

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And in their motion for summary judgment, they simply reincorporated the motion to dismiss briefing.

[00:23:56] Speaker 02:
You're saying that as soon as State Department made the argument that your initial declarations were insufficient to support standing at your very next filing, you submitted these supplemental declarations?

[00:24:08] Speaker 01:
No, there was a reply brief to the motion dismissed and we didn't file any supplemental declarations with our motion for summary judgment, which would have been the next filing.

[00:24:17] Speaker 01:
The reason we didn't is we believe that our standing was self-evident and clearly established.

[00:24:21] Speaker 01:
When it became clear later in briefing that there was this

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a terminological dispute about how far the rule reached, we thought it was better rather than fight over what these people meant to let those people speak for themselves.

[00:24:34] Speaker 01:
And I think of particular import here is the State Department's December 2019 clarification, which occurred eight months after these declaration were filed, long after, I believe, five or six months after the close of briefing in the District Court, where they admitted that the initial statements on their website and statements to agencies that all sought referrals are prohibited

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goes too far.

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So I think if the State Department itself struggles to articulate what it means, if senior state officials are misdescribing the rule to NCFA members.

[00:25:03] Speaker 02:
That sounds right.

[00:25:05] Speaker 02:
That's helpful.

[00:25:06] Speaker 02:
I was going to change the topic again.

[00:25:10] Speaker 02:
So if you have a follow-up.

[00:25:11] Speaker 04:
On the standing and on the support for it, the district judge held that under 12B1,

[00:25:21] Speaker 04:
So as I take it, you know, as a matter of pleading or motion to dismiss that there's no standing.

[00:25:29] Speaker 04:
If we were, we could, I suppose, reverse and remand on that, but you have urged us relying on Mendoza to go ahead, if we were to find standing and decide the notice in common,

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legislative rule claim.

[00:25:46] Speaker 04:
Can we do that without also holding as a matter of summary judgment that the record supports standing?

[00:25:54] Speaker 04:
And is there any limitation in our ability to do that here?

[00:25:57] Speaker 01:
I think that if the decree or the judgment was to enter judgment, then yes, we'd have to meet the summary judgment standard.

[00:26:07] Speaker 01:
But I do believe that since we

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have relied on the administrative record and submitted declarations.

[00:26:12] Speaker 01:
We have gone beyond the pleadings.

[00:26:13] Speaker 01:
We're not simply, as Lujan talks about, making a verbment of our standing, but we have shown specific evidence that, you know, there's a dispute about what it means, but there's no dispute that what our declarants have said is true.

[00:26:25] Speaker 01:
I think that is a sufficient basis to find as a matter of summary judgment that we have standing.

[00:26:32] Speaker 01:
I think in particular, even though the district court

[00:26:34] Speaker 01:
ruled on 12B1 grounds, the consideration of facts and not just accepting the allegations as true, I think did go to a summary judgment type analysis.

[00:26:44] Speaker 01:
That's why we don't really fight about whether this is 12B1 and Rule 56 is because we think we've met both.

[00:26:50] Speaker 01:
We obviously moved affirmatively for summary judgment.

[00:26:52] Speaker 01:
So we think that the record is clear for that.

[00:26:56] Speaker 01:
So we do think that would make sense to reverse on standing and then also to go forward as the court did in Mendoza to decide the merits because there is no

[00:27:04] Speaker 01:
This is a pure legal question there's no special competency of the district court, and you know, not unlike in Mendoza there's real harm here as we've talked about that the rule has been a fact for three years as of this past Tuesday.

[00:27:16] Speaker 01:
And during that time, people

[00:27:18] Speaker 01:
families who would have children have to wait longer or not even begin the process and children who would be in loving families are remaining orphanages longer or permanently because of the rule.

[00:27:29] Speaker 04:
So ordinarily if a district judge is going to convert a motion to dismiss to a motion for summary judgment they have to give notice and I take it your position here would be well there was briefing on summary judgment so that's enough notice and then

[00:27:40] Speaker 04:
You know, the district judge didn't say a lot about it, but in finding that it was prejudicial for the second declarations to be included with the reply, and I can ask this of Ms.

[00:27:50] Speaker 04:
Lopez, but presumably their potential prejudice would be if state wanted to put in contrary evidence.

[00:27:59] Speaker 04:
I mean, on a summary judgment sequence, that would be one of the things one would suspect would be a source of prejudice.

[00:28:10] Speaker 04:
Why isn't that a problem for the proposal that we go ahead on summary judgment here?

[00:28:15] Speaker 01:
I think it's a problem because state also cross moved for summary judgment and summary judgment brief said it was entitled to judgment based on standing.

[00:28:24] Speaker 01:
And so if state wanted to put on contrary evidence, it could have done so in summary judgment brief.

[00:28:32] Speaker 01:
whatever reason, I'm not sure why I chose not to do so.

[00:28:35] Speaker 05:
Mr. Hay, did did you file a statement of material facts not in dispute?

[00:28:43] Speaker 01:
This wasn't required under the local rule because it's an APA challenge.

[00:28:47] Speaker 01:
There's a local rule in the in the district court that that's only required for non APA cases.

[00:28:52] Speaker 05:
And no, we did not even for standing.

[00:28:54] Speaker 05:
Is that does the rule also apply to standing issues?

[00:28:59] Speaker 01:
I believe it does.

[00:29:00] Speaker 01:
I think it says it applies to, I believe it incorporates either the APA or actions against government agencies.

[00:29:07] Speaker 01:
That's my recollection, at least, of the local rule.

[00:29:09] Speaker 01:
It doesn't apply to standing.

[00:29:10] Speaker 01:
Okay.

[00:29:17] Speaker 01:
I'm sorry.

[00:29:18] Speaker 01:
Go ahead, Your Honor.

[00:29:19] Speaker 04:
I was just going to... Well, actually, Judge Walker, you had said you had questions moving on from that.

[00:29:24] Speaker 04:
Why don't you go ahead?

[00:29:25] Speaker 04:
I'm actually good.

[00:29:26] Speaker 04:
I appreciate it.

[00:29:28] Speaker 04:
OK.

[00:29:28] Speaker 04:
On the notice and comment claim, doesn't it just stem from a policy disagreement with the State Department on what's in the best interests of the child?

[00:29:40] Speaker 04:
And if so, how is that a legislative rule requiring notice and comment?

[00:29:45] Speaker 01:
I don't believe it.

[00:29:46] Speaker 01:
The policy difference for a few reasons.

[00:29:48] Speaker 01:
One is that this is a statement that is binding in effect on every agency in this court and Appalachian power talked about guidance documents posted on websites that are have the effect of legislative rule.

[00:30:00] Speaker 01:
If it's binding in the field of agencies believe their permits will be declared invalid or noncompliance.

[00:30:04] Speaker 01:
If it's treated like a legislative rule and all those are met here because the State Department has instructed its accrediting entity to enforce this rule to the letter in every

[00:30:14] Speaker 01:
enforcement action and through regulation has deprived the accredited any discretion to reach different conclusion, not to take adverse action to grant accreditation notwithstanding.

[00:30:25] Speaker 01:
any violation of the rule.

[00:30:28] Speaker 04:
The fact that it's required though, I mean, the best interest of the child standard is required.

[00:30:32] Speaker 04:
And if state were to articulate a specific rule or I'm sorry, a specific guidance that was mandatory that no child should face a prospect of abuse.

[00:30:45] Speaker 04:
in a placement or no adoption should be unnecessarily delayed for, just unnecessarily delayed where the best interest could be met by more prompt action.

[00:31:00] Speaker 04:
Those would be more specific rules, but wouldn't they also just be policy interpretations, guidance,

[00:31:10] Speaker 04:
you know, clarification of the best interest of the child standard and not separately require notice and comment.

[00:31:17] Speaker 01:
And two points in response to that quickly, Your Honor.

[00:31:19] Speaker 01:
First is that I think it may be theoretically possible that they could say we have determined that this specific act is so harmful that it cannot be done in any adoption consistent with the best interest of the child.

[00:31:31] Speaker 01:
State didn't do that here.

[00:31:32] Speaker 01:
What they said, in fact, is that these are oftentimes harmful

[00:31:35] Speaker 01:
to children, which means that there are times when they are not harmful to children, that there are times where soft deferrals increase the number of families willing to adopt or expedite the time where an adoption would be completed.

[00:31:47] Speaker 01:
Second, and I think this court's recent decision in Poet actually gives a nice comparison to the rule here.

[00:31:54] Speaker 01:
In Poet, what the court recognizes is that a interpretive rule must be fairly viewed as interpreting a statute or regulation.

[00:32:00] Speaker 01:
There is nothing interpretive at all about the soft deferral rule.

[00:32:03] Speaker 01:
It never cites, quotes, engages with any

[00:32:06] Speaker 01:
Any statute of regulation or the convention.

[00:32:09] Speaker 01:
In fact, the only part, the only point where it mentions regulations that j 62 in response to FAQ one where it says the rule is based on is an interpretation of policies that are consistent with Statues and regulations, not that it's interpreting

[00:32:24] Speaker 01:
the regulation themselves, but rather as interpreting policies that it believes are consistent.

[00:32:29] Speaker 01:
What this court has said repeatedly is that consistency with the rule is not a hallmark of interpretation.

[00:32:35] Speaker 01:
Plenty of things could be consistent with the rule.

[00:32:37] Speaker 01:
When an agency is choosing amongst many different options how best to exercise its delegate legislative authority, that is a legislative act.

[00:32:47] Speaker 01:
And what the court said also in going back to comparison, the poet, the court there said it could hardly be clear the guidance there was interpretive in particular because it never deviated from the regulations that again there is no engagement at all with the regulation here and in fact,

[00:33:03] Speaker 04:
You've already mentioned a few places where you characterize the agencies as treating the guidance as mandatory, having a binding legal effect.

[00:33:17] Speaker 04:
Some of the briefing talks about it that way, but where would you point me in the record to the best evidence that an accrediting entity is actually categorically bound to follow the guidance as opposed to sort of prudentially

[00:33:32] Speaker 04:
likely because of their need to maintain accreditation.

[00:33:36] Speaker 01:
Certainly.

[00:33:37] Speaker 01:
And so the administrative record here stopped, I think, the day after the FAQ was published.

[00:33:41] Speaker 01:
So we don't have any enforcement actions in there.

[00:33:43] Speaker 01:
And because enforcement actions are taken by a third party, they wouldn't even be in state's administrative record.

[00:33:48] Speaker 01:
But what I would point the court to is a few things.

[00:33:50] Speaker 01:
And Miki, the Adoption Academy brief at page 13 says that the, the accrediting entity is enforcing this.

[00:33:57] Speaker 01:
There's also Mr. Klarberg's amicus brief talks about, I think it's at pages 20 and 21, and a case a few years ago involving faith international adoption, where his agency, the Council on Accreditation, was at the time the accrediting entity.

[00:34:12] Speaker 01:
And they believe that guidance stated issue was incorrect.

[00:34:15] Speaker 01:
And they told state this and states that regardless of what the guidance says you have to enforce it and as a result, you have to strip these agencies accreditation.

[00:34:22] Speaker 01:
Those agencies went to court, they obtained a preliminary injunction the court found they were likely to show that the guidance was in fact a legislative rule.

[00:34:30] Speaker 01:
But for those agencies too late those agencies, I believe, all three or at least two of them went out of business, we have a declaration one of them.

[00:34:38] Speaker 01:
Ms.

[00:34:38] Speaker 01:
Alberts at ECF 24-2.

[00:34:40] Speaker 01:
It wasn't in the JA, but it's ECF 24-2.

[00:34:44] Speaker 01:
Her agency was forced to close because the State Department forced the accrediting entity to treat its guidance document, its unlawful guidance document, as a legislative rule and deny accreditation on that basis.

[00:34:56] Speaker 01:
So we think there is strong reason to suspect that the accrediting entity will do what it's required to do and enforce these rules as though they were legislative.

[00:35:06] Speaker 01:
And just a final point response to your question about how this is not just a policy disagreement, it can't be a policy disagreement because it rewrites provisions of the legislative rules.

[00:35:15] Speaker 01:
In particular, it imposes timing requirements on when home studies have to be completed and when eligibility terminations have to be made that don't exist in legislative rules or the convention.

[00:35:27] Speaker 01:
And more directly, it redefines what best interest of children means.

[00:35:31] Speaker 01:
This is a very common term.

[00:35:33] Speaker 01:
It's probably the North Star to most areas of family law.

[00:35:36] Speaker 01:
And in all states, all countries under the convention, as the Center for Adoption Policy explains, this is a case-by-case, fact-dependent decision that looks to the child's needs and what would be in that child's best interest.

[00:35:49] Speaker 01:
The State Department expressly, in its notice of pros rulemaking back in 2006, or 2003, excuse me,

[00:35:56] Speaker 01:
chose to incorporate state law wherever possible and in particular to adopt state law on best interests of children.

[00:36:03] Speaker 01:
This makes- All right, all right.

[00:36:05] Speaker 04:
I mean, we've given, we've taken you well over your time and I appreciate your responsiveness to- I appreciate it very much.

[00:36:12] Speaker 04:
Dr. Judge Walker, do you have additional questions for Mr. Hay?

[00:36:16] Speaker 01:
Yes, thanks.

[00:36:18] Speaker 04:
All right, thank you.

[00:36:18] Speaker 04:
And we will give you a brief rebuttal time.

[00:36:23] Speaker 00:
Ms.

[00:36:23] Speaker 00:
Lopez, good morning.

[00:36:24] Speaker 00:
May it please the court, Carolyn Lopez on behalf of the government.

[00:36:28] Speaker 00:
I want to start out where the court did with really focusing on understanding, because there's still been a mischaracterization of what the conduct that's actually prohibited actually does.

[00:36:39] Speaker 00:
And so I think we're all on the same page, but I want to make sure, and I'm going to take each in turn, that narrowly all the guidance says with respect to children who have not even yet been deemed eligible

[00:36:53] Speaker 00:
for inter-country adoption is that it's inappropriate to refer those types of children to parents.

[00:36:58] Speaker 00:
And that's consistent with the State Department's prior debarment action at JA 117.

[00:37:04] Speaker 02:
Ms.

[00:37:05] Speaker 02:
Lopez, that's even if it's an unofficial match, correct?

[00:37:09] Speaker 00:
Correct.

[00:37:10] Speaker 00:
And the reason for that, and there, that's because as the State Department described, it boggles the mind that you would need a specific regulation in this context in which for a child to sort of even come into this context,

[00:37:23] Speaker 00:
they have to be at least eligible for.

[00:37:25] Speaker 02:
What do you say to the example of Taiwan, for example, which you know what I'm talking about?

[00:37:31] Speaker 00:
Yes, that actually mischaracterizes what's going on in Taiwan.

[00:37:34] Speaker 00:
And I think it's really important to drill down into that because that's actually a mistake made both in describing Ms.

[00:37:40] Speaker 00:
Mu's things as we talk about in the brief and also in some of the declarations that talk about the termination of parental rights.

[00:37:46] Speaker 00:
And so that there, the confusion there is that the distinction between

[00:37:53] Speaker 00:
the termination of parental rights, which in some countries doesn't happen until the end, and a determination that the child is actually eligible for inter-country adoption.

[00:38:01] Speaker 00:
And those are not coterminous.

[00:38:03] Speaker 00:
And we know those aren't coterminous from the articles of the convention themselves.

[00:38:07] Speaker 00:
So Article 4C recognizes that the termination of parental rights isn't always necessary for a child to be determined to be eligible, and also Articles 26 and 27 of the convention.

[00:38:18] Speaker 00:
And so when one looks at what

[00:38:21] Speaker 00:
Ms.

[00:38:22] Speaker 00:
Mu actually said, so this is at JA 138 and JA 150.

[00:38:28] Speaker 00:
At JA 138, she describes specifically Taiwan as a country where there are children who are, quote, legally eligible to be adopted.

[00:38:40] Speaker 00:
And so the State Department took her at her word that what she was talking about in Taiwan is children who have already been determined to be legally adopted.

[00:38:49] Speaker 00:
And then again, at JA 150,

[00:38:51] Speaker 00:
She talks about how these are children that have already been registered in Taiwan, i.e.

[00:38:55] Speaker 00:
registered for adoption, inter-country adoption, and that a determination has been made by their orphanages.

[00:39:01] Speaker 02:
Let me see if I'm following.

[00:39:03] Speaker 02:
Your position is that an adoption from Taiwan could work like this.

[00:39:07] Speaker 02:
The government of Taiwan declares a child eligible for adoption, even though the child has not been even informally, unofficially matched with an adoptive parent.

[00:39:20] Speaker 02:
Then the adoptive parent goes through the, then a match occurs, a hold, if you will, occurs.

[00:39:32] Speaker 02:
And then Taiwan's government says, this child can do an inter-country adoption.

[00:39:40] Speaker 00:
Am I right?

[00:39:40] Speaker 00:
No, Your Honor.

[00:39:41] Speaker 00:
That's not what I mean at all.

[00:39:42] Speaker 00:
What I mean is that, and thank you for the opportunity to clarify that,

[00:39:46] Speaker 00:
A lot of this confusion arises, I think, because plaintiffs and plaintiffs- Don't tell me what they said.

[00:39:55] Speaker 02:
Just tell me how an adoption in Taiwan would work.

[00:39:58] Speaker 00:
Sure.

[00:39:59] Speaker 00:
Adoption in Taiwan works this way.

[00:40:02] Speaker 00:
Taiwan says, this child is eligible for inter-country adoption.

[00:40:06] Speaker 00:
We're going to add them to our registry.

[00:40:08] Speaker 00:
The child is then eventually matched with a parent.

[00:40:11] Speaker 00:
As part of that- Held?

[00:40:13] Speaker 02:
Officially?

[00:40:15] Speaker 00:
Well, any holding, and I do, any holding as the guidance makes clear that's done by the country of origin, so Taiwan is fine.

[00:40:24] Speaker 00:
It's only when the adoption service provider is doing the holding instead in such a way that prevents other families from considering the family or Taiwan from making a different choice that it's a problem.

[00:40:34] Speaker 00:
So there could be a hold.

[00:40:36] Speaker 02:
What if the agency does something that prompts Taiwan to hold the child?

[00:40:40] Speaker 02:
Is that allowed?

[00:40:42] Speaker 00:
So as the December 2019 guidance made clear,

[00:40:45] Speaker 00:
the agency can continue to advocate for their family, but what they can't say is Taiwan, you should adopt a proposition in which you always hold these children no matter what.

[00:40:56] Speaker 04:
But they can go, I thought, I mean, he can speak for himself.

[00:41:00] Speaker 04:
I thought Judge Walker's question was, is it OK for the agency to request that the country government allow a hold?

[00:41:10] Speaker 04:
It's OK.

[00:41:11] Speaker 00:
In an individual case.

[00:41:13] Speaker 00:
Sorry.

[00:41:16] Speaker 00:
They may the 2019 guidance December guidance says it's okay for them to continue to advocate for their child sorry for their family that they're representing and to say we think that you should still.

[00:41:29] Speaker 00:
pick our family over the other family so that's a sort of specific thing, but what they can't do is say we think you should always no matter what holds this hold this file and so, but I do just want to get back to sort of the distinction between.

[00:41:43] Speaker 00:
I just want to make sure we're all on the same page about this distinction between the termination of parental rights and eligibility for inter-country adoption.

[00:41:51] Speaker 00:
And the reason that it makes sense for some countries to sort of separate that out is what they're doing is they're saying that they are making all those article four determinations.

[00:42:01] Speaker 00:
So the child is actually eligible for adoption.

[00:42:04] Speaker 00:
The second

[00:42:06] Speaker 00:
the child that inter-country adoption and not domestic adoption makes sense.

[00:42:10] Speaker 00:
And third, that if there are any remaining parents, and there would be with this termination of parental rights question, that there's been free and non-coercive dissent.

[00:42:19] Speaker 00:
But what they might do is still want the child where there are living parents to have some sort of legal tie to those parents while the adoption is being made.

[00:42:28] Speaker 00:
And then also the Hague Convention recognizes that in some countries,

[00:42:32] Speaker 00:
there's not a termination of a total termination of parental rights and there may be some sort of relationship thereafter.

[00:42:38] Speaker 00:
And so it's really comparing apples and oranges.

[00:42:41] Speaker 00:
And I do just wanna emphasize again, that Mary Moo, which is the one sort of record evidence that they provide, she herself says that Taiwan is talking about eligible children who have been registered.

[00:42:53] Speaker 00:
And at JA, I think it's either 263 or 265 after the May guidance,

[00:43:00] Speaker 00:
is issued and after she's asked these questions, she says the State Department has answered all of her questions.

[00:43:06] Speaker 00:
And so.

[00:43:07] Speaker 02:
Let me see if I've just followed you so far.

[00:43:11] Speaker 02:
I'm going to describe an adoption from Taiwan, and then I'm going to have two questions.

[00:43:16] Speaker 02:
The first question is, would State Department consider that the adoption agency did anything illegal?

[00:43:23] Speaker 02:
And the second question is, would Taiwan allow this adoption to happen in the sequence of events?

[00:43:28] Speaker 02:
So is it okay with state and is it okay with Taiwan?

[00:43:31] Speaker 02:
And here's the, I'm gonna tell you the sequence of events.

[00:43:35] Speaker 02:
Taiwan declares the child eligible for an inter-country adoption before the child has been even informally matched with any American parent.

[00:43:47] Speaker 02:
Then the adoption agency

[00:43:51] Speaker 02:
informally matches that child with an American family.

[00:43:56] Speaker 02:
And the adoption agency hopes that Taiwan will hold that child, but the American agency is not allowed to request that Taiwan hold that child.

[00:44:09] Speaker 02:
Then Taiwan completes the last of what's required in order to terminate parental rights and make the child completely 100% eligible for an adoption

[00:44:21] Speaker 02:
and then at that point, the child goes to the American family.

[00:44:28] Speaker 02:
Would Taiwan allow that to happen and would State Department allow that?

[00:44:33] Speaker 00:
I actually can't get that much more into what Taiwan does and doesn't do outside of this particular record, but I can say that that generally seems correct to me.

[00:44:44] Speaker 00:
I do want to just clarify one thing.

[00:44:49] Speaker 00:
Again, looking at articles 26 and 27 of the Hague Convention, the termination of parental rights sometimes doesn't even happen until after the end of a final adoption.

[00:44:58] Speaker 00:
And this is really why it is apples and oranges.

[00:45:02] Speaker 00:
The thing that has to have been done is that the child has to actually have been deemed eligible for inter-country adoption.

[00:45:09] Speaker 00:
And the question of what happens with the termination of parental rights as a formal matter varies country by country.

[00:45:15] Speaker 00:
And as the person, as the one person who brought up Taiwan said, the State Department's guidance answered all of her questions.

[00:45:22] Speaker 00:
And then- Okay.

[00:45:24] Speaker 02:
No, go ahead.

[00:45:25] Speaker 00:
So that's sort of the eligibility piece.

[00:45:28] Speaker 00:
And then if I, and I'm happy to sort of talk through any of the individual declarations on that, but I also wanted to make sure that we talked about the scope of the soft referrals to parents who haven't been- Excuse me.

[00:45:40] Speaker 05:
What determines the child's eligibility if it's not

[00:45:43] Speaker 05:
dependent upon parental rights.

[00:45:49] Speaker 00:
A parent in an adoption, one can imagine that a parent could consent to the child being legally adopted by other parents, but might want some continuing contact with the child.

[00:46:01] Speaker 00:
The Hague Convention itself clearly separates out those steps.

[00:46:06] Speaker 00:
Article 4, which is the article that's all about how the state makes that eligibility determination,

[00:46:12] Speaker 00:
Article four says, four C says, including parental, including that parental consents have been made, including in countries where that will result in a termination of parental rights that they've been appropriately apprised, that that's one of the consequences.

[00:46:28] Speaker 05:
Aside from the interaction of the child with the natural parents, what determines, what else is there to determine eligibility?

[00:46:39] Speaker 00:
it's that they're eligible for adoption in the first place.

[00:46:42] Speaker 00:
So even domestically that they're eligible for adoption, whether that's because their parents have died.

[00:46:46] Speaker 05:
What's the criteria for determining eligibility?

[00:46:51] Speaker 00:
That's vested with the country of origin and it's in their discretion to determine whether one of the factors have been made, which as we've been discussing, might be that the child's been abandoned, might be that the state has made a finding that the parents aren't competent

[00:47:09] Speaker 00:
to raise the child might be that the parents, that the child's parents are deceased.

[00:47:14] Speaker 00:
So that's a question of eligibility for adoption generally.

[00:47:17] Speaker 00:
And then there's a secondary question of whether inter-country adoption is in the child's best interest or staying within their country of origin is in their best interest.

[00:47:25] Speaker 00:
And if there are surviving parents, that parental consent piece that we've been talking about.

[00:47:30] Speaker 04:
You might have parental consent without having gone formally through a termination of parental rights.

[00:47:37] Speaker 04:
The parents are prepared to do it, but it just hasn't happened.

[00:47:40] Speaker 04:
And as you said, it can be useful to have a strand of parental right remaining as it's sort of like real, I mean, this is the crass, but real estate, you know, contract and closing that there's, there's a reason to have two different

[00:47:55] Speaker 04:
moments when everybody understands what the plan is, but it hasn't actually been effectuated.

[00:48:00] Speaker 00:
And that's very country dependent, sort of whether termination of parental rights is sort of coterminous with that original decision or happens later at the process.

[00:48:10] Speaker 00:
And then if I might just, and none of the declarants here say that they've done that.

[00:48:17] Speaker 00:
So for example, Armistead, who's one of the declarants that they rely on, at paragraph six of her declaration,

[00:48:24] Speaker 00:
she actually specifically says that the types of soft referrals that her agency used to engage in were between adoptable children.

[00:48:31] Speaker 00:
Now, adoptable children, that's exactly that for a definition that adoptability has been determined.

[00:48:37] Speaker 00:
So she's not saying that she's matching children who aren't actually eligible.

[00:48:43] Speaker 04:
So I understand, Ms.

[00:48:44] Speaker 04:
Lopez, that there's been some kind of misunderstanding of the

[00:48:49] Speaker 04:
bar on against holds and that it may some of the declarants may have mistakenly read it as barring more than it does.

[00:49:00] Speaker 04:
But what about the Sizemore declaration which addresses only pre-eligibility adoptions meaning where the

[00:49:11] Speaker 04:
family hasn't had the home study.

[00:49:14] Speaker 04:
And it seems like that's been more clearly understood.

[00:49:17] Speaker 04:
And why doesn't that declaration establish standing?

[00:49:21] Speaker 04:
Sure.

[00:49:21] Speaker 00:
So on the Sizemore Declaration, particularly because we're talking about emotion, we're at the summary judgment stage in terms of the record, she just hasn't done enough to link up her statement indicating that she understands that the guidance prohibits referring children who have not yet been deemed eligible to what she actually does.

[00:49:41] Speaker 00:
So the two types of things that she's talking about are special needs adoptions and kinship adoptions.

[00:49:47] Speaker 00:
And with respect to special needs adoptions, those are eligible children.

[00:49:50] Speaker 00:
They're not ineligible children.

[00:49:51] Speaker 00:
And she's talking about sort of recruitment and the guidance talks about all sorts of things that you can do to recruit families in such situations, including photo listings, for example, of eligible children.

[00:50:01] Speaker 00:
And then the other thing she talks about is kinship adoption.

[00:50:04] Speaker 00:
And here again, it's a very conclusory.

[00:50:06] Speaker 00:
So we don't know exactly what they used to do, how often they used to do it,

[00:50:10] Speaker 00:
And whether they're likely to do it again and sort of a clapper sense and and that's particularly underscored here where.

[00:50:19] Speaker 05:
I just want to interrupt you because there's an overall problem lurking in this case and I don't think you've addressed it you've you've done a fine job of picking apart the the decorations.

[00:50:31] Speaker 05:
But the question is, as you said, it's on summary judgment.

[00:50:36] Speaker 05:
And on summary judgment, the declarations and affidavits of the non-moving party have to be given credit and deference.

[00:50:48] Speaker 05:
You can screw them in the light most favorable to the non-moving.

[00:50:53] Speaker 05:
And if we do that with each one of these matters that you're taking apart, and I think very artfully, you lose.

[00:51:01] Speaker 00:
No, Your Honor, I don't think so because even at the summary judgment stage, it remains their burden to show that they actually have standing.

[00:51:11] Speaker 00:
While the court can make- I'm not talking about- Pardon me, pardon me.

[00:51:16] Speaker 05:
I'm not talking about burdens.

[00:51:18] Speaker 05:
What I'm talking about is how you construe the affidavits and the declarations.

[00:51:23] Speaker 05:
They have to be construed in favor of the non-moving party.

[00:51:28] Speaker 05:
That's just standard black letter law.

[00:51:30] Speaker 00:
Absolutely, Your Honor, but what this court has also said in the standing context is at any stage, whether that's the pleading stage or the summary judgment stage, the court isn't to fill in logical gaps between what they have actually said and their declarations and so what I'm in the State Department's view.

[00:51:48] Speaker 04:
They have left those gaps and so we don't know just more very precisely what you see as a gap you you said a few moments ago that you thought that the size more declaration hadn't done enough, even though.

[00:52:04] Speaker 04:
She's describing the correctly describing the practice and when she talks about family recruitment.

[00:52:12] Speaker 04:
There's no question on that side of the of the equation about the hold and, you know,

[00:52:19] Speaker 04:
when something is deemed to be an impermissible hold and when it's not.

[00:52:23] Speaker 04:
She's talking about can we, I mean it was the issue Mr. Hay was describing in some detail, can we as an agency work with a family that is particularly motivated with respect to a particular child and make a permissible match, otherwise permissible, before that family has been deemed

[00:52:49] Speaker 04:
eligible?

[00:52:50] Speaker 00:
And the answer to that is yes.

[00:52:52] Speaker 00:
I thought we were talking about the part of Sizemore that goes to eligibility of children.

[00:52:58] Speaker 00:
So the guidance makes clear that if what she's talking about is matching an eligible child to a family that just hasn't undergone its suitability determination, it absolutely can do that so long as it doesn't interfere with other families' ability to consider that child or interfere with the country of origin's ability to make a different choice.

[00:53:18] Speaker 00:
And the reason that I think she sort of does, I agree, seem to be talking about that at times is because when she's talking about recruitment, like again, recruitment of children with special needs are eligible children.

[00:53:29] Speaker 00:
And similarly, she sort of talks about the need to educate parents about specific children, which you would see with, again, eligible children.

[00:53:37] Speaker 00:
And then just very quickly with respect to the kinship adoptions at question four of the May FAQs,

[00:53:47] Speaker 00:
The State Department clarified that in fact, adoption service providers can accept applications from families who have pre-identified a child, including in relative situations, consistent with incorporating the limitations in Article 29, expressly incorporating the interpretation in Article 29.

[00:54:06] Speaker 00:
And so because we don't know, she just says she has changed what they've done in kinship adoptions, but because the guidance

[00:54:13] Speaker 00:
allows them to still do things and specifically as a question for about that, she would just have to give more details.

[00:54:20] Speaker 00:
We don't know.

[00:54:21] Speaker 00:
And even at sort of taking all inferences in her favor, she has to provide more explanation.

[00:54:26] Speaker 04:
What would she have to say?

[00:54:29] Speaker 04:
I'm just really trying to understand because obviously level of specificity is a spectrum.

[00:54:36] Speaker 04:
What about what she has said about

[00:54:39] Speaker 04:
pre-eligibility adoptions is inadequate.

[00:54:45] Speaker 04:
She does say in paragraph eight, as you noted, Hopscotch immediately ceased certain recruitment efforts to comply with the guidance and even limited our ability to complete kinship adoptions.

[00:54:59] Speaker 00:
So she would have to explain how it limited her ability in kinship adoptions.

[00:55:03] Speaker 00:
So if, for example, it's just that they stopped accepting applications from kinship adoptions,

[00:55:08] Speaker 00:
that would be sort of a self-inflicted injury because Q4 tells them that they actually can do this.

[00:55:14] Speaker 00:
She'd have to actually say, the reason it stopped kinship adoptions is because we were proceeding with kinship adoptions involving ineligible children.

[00:55:21] Speaker 00:
It's a pretty short sentence.

[00:55:23] Speaker 00:
And it's something that's entirely within their knowledge and not the State Department's knowledge in terms of what they actually do.

[00:55:31] Speaker 04:
But as Judge Randolph was saying, it seems not at all counterintuitive.

[00:55:38] Speaker 04:
that starting with paragraph six, she says, it's my understanding the State Department is taking the position that soft referrals unlawful when a child and prospective adoptive parents are unofficially matched before the child has been deemed by the foreign country eligible for adoption.

[00:55:54] Speaker 04:
And then she basically says, we've been doing that, and we're good at it, and now we're not.

[00:56:02] Speaker 00:
So I think the problem there is when she says it's piecing together different parts of her declaration.

[00:56:09] Speaker 00:
One is that she does understand correctly that the guidance does prohibit referring ineligible children.

[00:56:15] Speaker 00:
But then when she's talking about the types of practices that they engage in, she seems to be talking about the other type of soft referral, which is a soft referral of an eligible child

[00:56:28] Speaker 00:
to families that may not have completed their home study adoptions.

[00:56:31] Speaker 00:
And that's what we're talking about when we're talking about recruitment of children, that sort of those photo listings and the special needs programs, those are all eligible children.

[00:56:41] Speaker 00:
They're not ineligible children.

[00:56:42] Speaker 00:
And sort of, I think that the kinship adoption gets the closest, but even there in light of question four, I don't think she does enough to describe, you know, sort of even at summary judgment, sort of conclusively saying without any details,

[00:56:58] Speaker 00:
how often we, you know, what exactly you're doing when it's in totally within your own knowledge is insufficient.

[00:57:05] Speaker 00:
But, you know, and that's sort of, that's our view of why the Sizemore Declaration is insufficient.

[00:57:12] Speaker 00:
If I might turn to, I'm happy to sort of, if I might turn to the sort of the other part of the conduct, because they have to show standing with respect to each part of the conduct to,

[00:57:25] Speaker 00:
to actually have standing to challenge the relevant portions of the guidance with respect to it.

[00:57:30] Speaker 00:
Well, they're challenging the guidance.

[00:57:32] Speaker 04:
I mean, I don't think they're challenging just certain sentences of it, right?

[00:57:35] Speaker 04:
And either injury on all of the pieces of the guidance address both practices.

[00:57:43] Speaker 04:
I mean, I'm not sure because they're not separate claims that you're actually right, that they would have to establish standing with respect to both

[00:57:54] Speaker 04:
facets of the guidance in order to say the guidance as a unit needs to be?

[00:58:01] Speaker 00:
We think that they would.

[00:58:03] Speaker 00:
I mean, we agree that there are certainly parts of the guidance that speak to both types of soft referrals, but also that there are parts of the guidance.

[00:58:11] Speaker 00:
So for example, whether or not a child is eligible in the first place has nothing to do with hold.

[00:58:17] Speaker 00:
So the part of the guidance that has to do with adoption service providers

[00:58:21] Speaker 00:
doing holds instead of the country of origins, doing them just aren't implicated.

[00:58:25] Speaker 00:
That sort of part of the guidance isn't implicated at all by this eligibility question.

[00:58:30] Speaker 00:
So in our view, you know, sort of anything in the guidance that's sort of fairly classified as it obviously goes to sort of both types of narrow conduct, as long as they sort of show standing with respect to either, that's enough.

[00:58:44] Speaker 00:
But the parts of the guidance that really are discrete and come from discrete pre-existing obligations

[00:58:51] Speaker 00:
they would need to show that somebody is actually doing that.

[00:58:54] Speaker 00:
And I did just, if I might turn very briefly to just to make sure that we're all on the same page about what the guidance does and doesn't say with respect to parents who haven't completely undergone their home study evaluations, especially with respect to the program and China.

[00:59:13] Speaker 00:
That is not something new that's talked about in the December 2019 guidance, which

[00:59:18] Speaker 00:
I'm sort of surprised to hear plaintiffs say completely changed the game because in their opening brief at page 13, note three, they say the new guidance does not change the scope of the rule.

[00:59:31] Speaker 00:
And that's exactly the State Department's position.

[00:59:34] Speaker 00:
The District Court held, as the District Court correctly recognized, for example,

[00:59:39] Speaker 00:
92, note four and JA 286, the March and May guidance already made clear that this wasn't some sort of broad categorical ban.

[00:59:50] Speaker 00:
And instead, with respect to this particular question, that it made clear that really what we're talking about, and I'm sorry if I sound a bit like a broken record, but I just want to make sure that we're all on the same page, that it's just about the

[01:00:05] Speaker 00:
it's the difference between it being in the hands of the country of origin to make the decision to hold or the adoption service provider sort of preventing other families from asking about that child or interfering with those adoption service providers reaching out to the country of origin.

[01:00:24] Speaker 00:
And specifically with respect to the China program, as early as JA59 through 60, which is that first March guidance, the guidance comprehensively discusses the China program.

[01:00:35] Speaker 00:
and specifically says that it isn't saying anything about China's ability to hold that file.

[01:00:42] Speaker 00:
So if a second family comes to China, China is free to say, no, we're still holding that file for that family.

[01:00:48] Speaker 00:
And that's completely consistent with the statements from the Chinese central authority at JA-104 in which it's clear that China says, which is reflected in what the guidance says as well,

[01:01:03] Speaker 00:
that it was never China's intention that the files would be sort of locked away just for the agencies that originally posted them.

[01:01:10] Speaker 00:
They always intended that different adoption service providers should be able to reach out to China.

[01:01:15] Speaker 00:
It also makes clear that it's China that does the locking of the file and not the adoption service provider.

[01:01:20] Speaker 00:
And that really makes sense with the structure of the Hague Convention, which vests that sort of ultimate authority over what should happen to the child and essential authority in each of the countries.

[01:01:30] Speaker 00:
And it's not sort of farmed out to these individual adoption service providers to interfere with that ability to make that determination.

[01:01:37] Speaker 04:
Can I ask you, on the standing issue, is there additional evidence state would present at summary judgment?

[01:01:45] Speaker 04:
I'm trying to understand the district court's prejudice holding.

[01:01:48] Speaker 00:
So the way I actually understand the district court's analysis here is entirely consistent with this court's warning in such cases as Sierra Club.

[01:01:57] Speaker 00:
in which in Sierra Club, the regular standard, and what we're looking at here isn't a question of whether the district court would have abused its discretion in letting in the declarations, it's whether it abused its discretion and not letting in the declarations.

[01:02:10] Speaker 00:
And what Sierra Club has long put folks on notice of is absent good cause.

[01:02:16] Speaker 00:
And I haven't heard anything here to say that there was actually good cause here.

[01:02:19] Speaker 00:
At the first available, at the first appropriate moment in litigation where a serious question of standing has been raised,

[01:02:26] Speaker 00:
they need to put in their evidence.

[01:02:28] Speaker 00:
And as we've been discussing, that was clear from the motion to dismiss.

[01:02:32] Speaker 00:
It's always been the state's position that the guidance isn't this broad categorical ban.

[01:02:36] Speaker 00:
And then when they filed their 10, as we've been discussing, when they filed those 10 declarations, the state department's reply brief said, no, these aren't enough for the exact reasons that we said before and the same reasons that I'm discussing with your honors today.

[01:02:50] Speaker 00:
And then here it was simultaneous motions for summary judgment.

[01:02:56] Speaker 00:
Again, the State Department re-raised that exact point that they didn't have standing in their opening brief, the state's opening brief.

[01:03:03] Speaker 00:
The NCFA didn't attach the replies, the additional declarations to their response to that or to its own opening brief.

[01:03:12] Speaker 00:
It really, as a district court said, waited until the 11th hour without any explanation for why.

[01:03:18] Speaker 02:
Can you please answer Judge Pillers' question, though?

[01:03:21] Speaker 02:
She asked, would you have filed something in addition?

[01:03:25] Speaker 02:
I didn't get an answer to that.

[01:03:27] Speaker 00:
I can't say sitting here today, I don't know whether or not we would have filed additional summary judgment evidence, but what I will say is that- Where was the prejudice?

[01:03:38] Speaker 00:
The prejudice is that there shouldn't be these shifting declarations.

[01:03:45] Speaker 00:
For example, Nurboss and his declaration, I wasn't a trial attorney, I certainly can't get out in front of what my client would or wouldn't do.

[01:03:55] Speaker 00:
But just myself looking at the declarations,

[01:03:58] Speaker 00:
One of the things is that Nurboss says a bunch of things about what may or may not happen in Uganda and Nigeria.

[01:04:06] Speaker 00:
And so that's something that there might or might not be evidence about.

[01:04:09] Speaker 02:
But I know you weren't the trial attorney, Ms.

[01:04:11] Speaker 02:
Lopez, but you've seen the supplemental declarations and it's possible that a response to those supplemental declarations would be persuasive on the standing question.

[01:04:22] Speaker 02:
It's possible that your response would be futile.

[01:04:24] Speaker 02:
And if a response would be persuasive, I would think that it's your position that you would have filed some kind of additional evidence.

[01:04:32] Speaker 02:
And if a response would be futile, then I think it's appropriate to concede that.

[01:04:38] Speaker 00:
No, I mean, I apologize, Your Honor.

[01:04:41] Speaker 00:
I mean, I don't have a stance on exactly what evidence would or would not have been put into the record had the declarations been properly put in.

[01:04:49] Speaker 00:
But what I can say is that

[01:04:53] Speaker 00:
That sort of flips the way this is all supposed to work precisely because parties should have time to figure out what evidence makes sense to put in and to not put in.

[01:05:03] Speaker 00:
Parties aren't supposed to wait until the 11th hour to put in this new type of evidence that was entirely within their control.

[01:05:09] Speaker 04:
Although it was a little bit irregular the way the district court handled it in the sense that the district judge had not

[01:05:16] Speaker 04:
ruled on the 12b1 that he ultimately granted before the summary judgment briefing, but called for summary judgment briefing.

[01:05:25] Speaker 04:
And it is a fair inference for the plaintiffs to think that their explanations of how these documents affected them

[01:05:36] Speaker 04:
was sufficiently detailed and therefore did establish standing.

[01:05:41] Speaker 04:
And then when they see the arguments on the cross-motion, they think, well, we better bolster this because actually, state is taking this as a seriously still in contention when we, for some reason, in light of the procedural handling of the case, for some reason thought was not really still disputed.

[01:06:06] Speaker 00:
No, Your Honor, I would disagree for a couple of reasons.

[01:06:10] Speaker 00:
First, it's not as if the district court said, I have found that you have standing.

[01:06:16] Speaker 00:
It just sort of put off that decision.

[01:06:18] Speaker 00:
And second of all, because the State Department renewed its standing objection.

[01:06:23] Speaker 00:
So they knew from the State Department's opening brief that the State Department very much thought it was a live issue and still stood by everything that it said in its reply brief.

[01:06:32] Speaker 00:
And so waiting

[01:06:33] Speaker 00:
To not do that.

[01:06:35] Speaker 04:
Maybe I'm missing the sequence.

[01:06:38] Speaker 00:
Sorry.

[01:06:38] Speaker 04:
So this is a little bit that I thought they actually that's exactly what they were responding.

[01:06:43] Speaker 00:
Oh, no, your honor.

[01:06:44] Speaker 00:
So the case is a little bit wonky even at the Motion for summary judgment stage because they're filing simultaneous motions for summary judgment.

[01:06:53] Speaker 00:
Right.

[01:06:53] Speaker 00:
And so in the state's opening summary judgment brief, we renewed our standing objection.

[01:06:59] Speaker 00:
The first time after that, that they would have had to respond to that renewed standing objection, which certainly put them on notice that the state was sticking by what it said before was its response brief, at which point we would have had a reply brief, but they didn't do that.

[01:07:14] Speaker 00:
And certainly they could have done it at any point after.

[01:07:16] Speaker 02:
Did you file a fair reply brief to their reply brief?

[01:07:19] Speaker 00:
No, we filed a motion to strike the declarations as untimely.

[01:07:21] Speaker 04:
But there, also, you didn't say, and we want an opportunity to put in evidence.

[01:07:26] Speaker 04:
And under Rule 56D, ordinarily, if you're faced with summary judgment and you want an opportunity to put in evidence, you and your next filing would say, hey, we really haven't fairly been able to do this.

[01:07:40] Speaker 04:
Sure.

[01:07:40] Speaker 00:
I mean, I think our point was more the point that, sort of going back to the Sierra Club case,

[01:07:48] Speaker 00:
the way that the ordinary presumptions are that parties are supposed to put these things in to be fair to the parties opposing standing at the earliest possible moment in litigation and that when they don't do so and they really wait till the 11th hour like this, they should be struck.

[01:08:04] Speaker 00:
I'm also happy to talk about why neither of those declarations actually get them.

[01:08:09] Speaker 02:
What federal rule authorizes the district court to strike those declarations?

[01:08:15] Speaker 00:
I think that's consistent with this court's jurisprudence in Sierra Club that says that parties shouldn't assume that courts would be well-advised to understand that courts are not going to consider late-filed affidavits as a good cause shown, and we don't think that there's good cause shown.

[01:08:35] Speaker 02:
There's a difference between a court using its discretion to not consider a filing and a court officially striking it.

[01:08:43] Speaker 02:
And maybe it's a matter of form over substance.

[01:08:47] Speaker 02:
But just on the question of form, is there a federal rule that allows a district court to strike something that's not a pleading?

[01:08:56] Speaker 00:
So I'm sorry, I don't have the federal rules as well memorized as I should.

[01:09:00] Speaker 00:
But for example, in the capital sprinkler case,

[01:09:04] Speaker 00:
that case sort of came out the opposite of this and that it was a question about whether or not the district court, I mean, and it may sort of be a sort of matter of form over substance and that if given that the district court wouldn't have abused its discretion to not consider the declarations and the effect of striking the declarations was that he didn't consider the declarations, it sort of comes out

[01:09:31] Speaker 00:
the same way and isn't a reason for the court to now consider those declarations or to reverse, because it would be the same decision at the end of the day.

[01:09:41] Speaker 02:
That's good.

[01:09:42] Speaker 02:
That's helpful.

[01:09:42] Speaker 02:
I also don't have them memorized, so you're either in good company or you might not be, but you're in my company.

[01:09:49] Speaker 04:
If we hold that NCFA has standing, should we just go ahead and decide the notice in common issue?

[01:10:00] Speaker 04:
There's not really any point.

[01:10:02] Speaker 00:
As we said in our brief, again, we don't think that there's actually standing, but because that's a legal question, we don't object in the interest of keeping the wheels of justice moving to addressing the merits question.

[01:10:18] Speaker 00:
Unless Your Honors want to talk about why the supplemental declarations don't get them there anyway, I'm happy to move on, on standing.

[01:10:25] Speaker 00:
I'm happy to move on to the sort of legislative rule questions.

[01:10:31] Speaker 00:
So here, what we know from this court's jurisprudence is that a rule, a guidance document, even one that has the effect of altering conduct or

[01:10:48] Speaker 00:
or announces clearer and crisper details on how a standard like the here, the best interest of the child standard should be understood does not become legislative where as in General Motors versus Ruckelhaus, it's just reminding entities of pre-existing obligations or as this court explained most recently in poet where it can be fairly drawn from those pre-existing obligations.

[01:11:16] Speaker 04:
And here.

[01:11:17] Speaker 04:
Unlike in poet, here, the guidance doesn't actually purport to construe language in any statute of regulation.

[01:11:26] Speaker 04:
It talks about these type of referrals being inconsistent with existing law.

[01:11:32] Speaker 04:
But it doesn't suggest this is an interpretation of any regulation on the books.

[01:11:39] Speaker 00:
No, Your Honor.

[01:11:40] Speaker 00:
I would disagree there.

[01:11:41] Speaker 00:
I think they may not have parsed out

[01:11:45] Speaker 00:
individual sort of regulatory sites.

[01:11:47] Speaker 00:
But at JA62 and JA59, they talk about how these types of self-referrals are inconsistent with the Hague Convention and the Inter-Country Adoption Act and the regulations.

[01:11:59] Speaker 00:
And then again, at that question one that we will be talking about, they were explaining that they were interpreting pre-existing regulations.

[01:12:06] Speaker 00:
And what they also do is they go back to, for example.

[01:12:11] Speaker 04:
Which pre-existing regulation?

[01:12:14] Speaker 00:
they say that they're not announcing a new policy, but that they're actually implementing long-standing policies from the 2006 regulations.

[01:12:23] Speaker 04:
So I agree that it's not as- Current regulations that have been in place since 2007, I'm just wondering which ones those are.

[01:12:30] Speaker 00:
Yes.

[01:12:31] Speaker 04:
I mean, which provisions are they interpreting?

[01:12:33] Speaker 00:
So they're interpreting this as I think, and again, these are sophisticated regulated entities and everybody understands as

[01:12:42] Speaker 00:
as sort of evidence by the briefing that what they're interpreting is the best interest of the child standard.

[01:12:48] Speaker 00:
And they're interpreting the best interest of the child standard in these two areas that are really critical.

[01:12:54] Speaker 00:
And so we talked about this briefly before, but this first thing that, of course, a child's, you know, it's so fundamental that a child has to actually be eligible for inter-country adoption in the first place before they're referred to families, that a prior debarment proceeding by the State Department said, the hearing officer there said, it boggles the mind.

[01:13:12] Speaker 00:
that you would have to have something more specific than what already exists in sort of the Hay Convention and the implementing structure.

[01:13:19] Speaker 00:
And then with respect to this question of putting, and we sort of, we described the sort of regulatory regime in our brief as well, but in terms of understanding how this works, in terms of the holds and the interference with countries, that really has to do with,

[01:13:38] Speaker 00:
Suitability determination that parents are actually suitable to adopt is also a really important safeguard for the best interest of the child.

[01:13:44] Speaker 00:
And we know that from Article Five of the Convention, we know that the country of origin is going to have to actually sign off on that suitability determination and have sort of the authority to decide at the end of the day what the best match is.

[01:13:55] Speaker 00:
And we know that from Article 17, for example, of the Convention.

[01:13:59] Speaker 00:
And we also know that these are incredibly important safeguards from the Inter-Country Adoption Act itself.

[01:14:05] Speaker 00:
And that's because

[01:14:06] Speaker 00:
conforming to these home study requirements is actually a minimum requirement of accreditation and a willful violation of that standard actually is automatic non substantial non-compliance.

[01:14:17] Speaker 00:
And in that context, the state fairly drew from those that where holds that are placed by the, again, the adoption service provider and not the country of origin that prevent other families from considering those children as the state department describes that can lead to

[01:14:34] Speaker 00:
longer institutionalizations and has also led to home study agencies saying that they felt undue pressure to actually approve families.

[01:14:43] Speaker 00:
Cause they're essentially told it's this family or nothing.

[01:14:46] Speaker 00:
And the reason they're told it's this family or nothing is because the files are sort of being kept away from other families that might potentially be interested.

[01:14:53] Speaker 00:
And they said that they felt either undue pressure to actually say that a family was suitable when it really wasn't or to actually entirely get out of the program.

[01:15:02] Speaker 00:
And interestingly, one of NCFAs own declarants Armistead said in comments that are in that we cite in the record that she actually thought that it wasn't a good idea to allow holes in the situation at all.

[01:15:14] Speaker 00:
So it's sort of a well documented problem and they are so there it's sort of fairly drawn from the fundamental way that children's best interest is safeguarded and as plaintiff has said today and also

[01:15:27] Speaker 00:
the Center for Adoption Policy has said, they may disagree with us as a policy matter as to whether or not this is something that actually obviously violates the best interest of the child standard, but they have also acknowledged that there could be things that categorically so obviously violate the best interest of this child standard that you don't need a sort of more, you know, it doesn't become something that's subject to notice and comment just because the State Department says, hey, we assume you've all been doing this correctly, but if not, this is really not okay.

[01:15:55] Speaker 04:
And then, although the very importance of it and the, and the confusion that we've seen ensuing would seem to suggest noticing comment would be a beneficial process here to get the input of the, you know, and have a have a detailed conversation pinning down the nomenclature with the entire

[01:16:18] Speaker 04:
global community of entities that are that are engaged in this.

[01:16:21] Speaker 00:
Your honor, I mean, I don't think that that sort of changes whether or not the State Department was actually obligated to do this through notice and comment.

[01:16:28] Speaker 00:
And also, I do just want to emphasize here that the administrative record, only some of which we've excerpted here is 700 pages.

[01:16:34] Speaker 00:
So it's not as if the agency sort of did this as a fly by night thing.

[01:16:39] Speaker 00:
They were responding to emerging problems.

[01:16:41] Speaker 00:
including in its debarment, which was so serious that it was the first time that the State Department had actually taken debarment action itself rather than the accrediting entity taking adverse action.

[01:16:54] Speaker 02:
Do you agree that adoptions in China are down 57% since this guidance began?

[01:17:02] Speaker 00:
I don't have any reason to dispute that particular number, but there is a vast difference between causation and correlation.

[01:17:09] Speaker 00:
And so here, even before any of this guidance was issued, and I apologize, I don't remember the JA site about this, but the State Department explained that inter-country adoptions generally were down because a lot of countries were focusing on placing children domestically rather than inter-country.

[01:17:28] Speaker 00:
And then similarly, one of the reasons that the adoptions in China might be down, frankly, is because the declarants continued to mischaracterize the guidance as saying that they

[01:17:39] Speaker 00:
couldn't do these types of adoptions, even though as soon as the March guidance, that JA5960, the State Department made very clear that they could.

[01:17:48] Speaker 00:
So if part of that decreases because adoption service providers were sort of voluntarily injuring themselves by not participating in the program, that's not a problem that stems from the guidance itself.

[01:17:58] Speaker 04:
You were advocating that this is just an interpretation of the best interests of the child's standard, but we have been offered examples of situations in which conduct

[01:18:09] Speaker 04:
contrary to the guidance appears to be in the children's best interest.

[01:18:15] Speaker 04:
So how do you respond to that?

[01:18:17] Speaker 04:
Reluctance to accept your view as the State Department employee you referred to said that it boggles the mind that people wouldn't just understand this to be the case.

[01:18:31] Speaker 00:
So, I mean, I can sort of, I mean, one, that's the State Department's

[01:18:37] Speaker 00:
position both in this guidance and through a formal department proceeding.

[01:18:41] Speaker 00:
But sort of more, and that's well within its expertise, but it goes back to sort of what I was saying about the way the Hague Convention itself is structured.

[01:18:50] Speaker 00:
The very first substantive procedural step that's supposed to be taken is this determination about whether the child is even adoptable in the first place.

[01:18:59] Speaker 00:
And that makes sense because, I mean, sort of intuitively, because once a family

[01:19:04] Speaker 00:
knows about a child who, so for example, sometimes I think a hypothetical might be helpful here.

[01:19:10] Speaker 05:
So sometimes- What would be helpful is if you wrap your argument up, you're way, way over time.

[01:19:19] Speaker 04:
You can proceed and wrap it up.

[01:19:21] Speaker 04:
You can proceed.

[01:19:23] Speaker 00:
So, sorry, I'll try and be as quick as I can.

[01:19:25] Speaker 00:
So sometimes a parent who can't take care of a child for a little bit will drop the child off temporarily in an orphanage with

[01:19:32] Speaker 00:
no idea that the child might be put up for inter-country adoption.

[01:19:36] Speaker 00:
If that child who isn't eligible for inter-country adoption is matched to a family and that one might see how the family would put undue pressure on that parent to see their parental rights and the Hague Convention is about safeguarding against those types of against those types of things happening and that's why

[01:19:56] Speaker 00:
sometimes the safeguards might be a little broader and it might like very occasionally be in the best interest of the child, but you can make categorical rules as plaintiff has, you know, set an argument as well.

[01:20:06] Speaker 00:
Thank you for all of the additional time.

[01:20:08] Speaker 04:
Yeah.

[01:20:08] Speaker 04:
And we gave Mr. Hay ample additional time and we appreciate the detailed informative arguments on both sides.

[01:20:16] Speaker 04:
Mr. Hay, you did not have additional time, but as I mentioned, we'll give you a couple of minutes for rebuttal if you want it.

[01:20:24] Speaker 01:
Certainly, I will keep this brief.

[01:20:26] Speaker 01:
So just two quick points.

[01:20:28] Speaker 01:
First, all this dispute about what Declarence meant, whether, how to construe it, as I think the State Department now conceded, that's not something not appropriate at this stage.

[01:20:39] Speaker 01:
But I do think if you look at what the Declarence actually says, starting with Mary Moo talking about Taiwan, the waiting children are referred to agencies for family finding efforts, but there is no document that indicates they're eligible and legally free.

[01:20:54] Speaker 01:
Ms.

[01:20:55] Speaker 01:
Sizemore Thimbley said that her agency stopped making these soft deferrals.

[01:20:58] Speaker 01:
Were the department to rescind the soft deferral ban, they would resume making them.

[01:21:02] Speaker 01:
So at a minimum, I think that the state department has come very close to conceding that the dismissal on 12B1 grounds was improper and that should be reversed.

[01:21:12] Speaker 01:
But we do think the court should go further and vacate on the merits.

[01:21:16] Speaker 01:
On the merits, the only thing I heard Ms.

[01:21:17] Speaker 01:
Lopez talk about is that this is consistent with the overarching

[01:21:21] Speaker 01:
goals and purpose of the inter-country adoption laws.

[01:21:24] Speaker 01:
And it may well be, we don't think it is, but it may well be.

[01:21:27] Speaker 01:
What this court says repeatedly is that consistency is not the hallmark of an interpretive rule.

[01:21:32] Speaker 01:
Many things could be consistent.

[01:21:34] Speaker 01:
When an agency is using its authority delegated by Congress to choose a way to enforce the laws, that is a legislative act.

[01:21:42] Speaker 01:
That's what this court said in Catholic health initiatives, for example, that this sort of policy setting is a legislative act.

[01:21:50] Speaker 01:
And more broadly, the best interest standard is the North Star of adoption law.

[01:21:55] Speaker 01:
And what this court said in Mendoza is that agencies can't interpret the general mission of a statute, that specific meaning, because if they did that, there would be no reason ever to go through notice and comment.

[01:22:05] Speaker 01:
Presumably, state believes every regulation and issues is consistent with children's best interest.

[01:22:10] Speaker 01:
And if they could use that term to interpret what specific obligations they think support that interest, there would be no reason to go through notice and comment.

[01:22:18] Speaker 01:
So for these reasons, we respectfully ask the court to reverse the ruling on standing and vacate the soft referral rule.

[01:22:24] Speaker 01:
Thank you very much.

[01:22:25] Speaker 04:
Thank you both.

[01:22:26] Speaker 04:
The case is submitted.