have standing to see damages and declare it for relief visitation with strangers disregard of the dignity stability permanency and the best interests of the children denial of equal protection the imposed badge of inferiority and added costs are all concrete particularized injuries that are traced to the defendant's conduct and redress of will by the award of the requested relief these injuries and defendant's conduct flow from all eight of the challenge provisions in this lawsuit take visitation with strangers for example that flows directly from seven of the eight provisions that are challenging four of the equipe revisions the act of efforts provision the terminations burden provision and the two placement preferences provisions and the three state law provisions that we have challenged now the facts in this in this case are such that for example c c had to visit with hundred not hundreds of dozens of strangers  and he cried uncontrollably at every single one of those visits during those visits there are state government officials and tribal officials who told him that his mom and dad are not his mom and dad for two three four year old child that's a traumatic injury and that's the that's the injury that we have claimed in this case the same was the case with energy and c r was placed with her foster parents now adoptive parents had b and since then she had to visit with no less than eight complete strangers now in the non native american context that visitation occurs or leave it to biological parents and only with extended family members who can show that they have an existing relationship so carefully focus you one paragraph twenty seven of your complaint which to me is the strongest case you have for stand in this case so you were just referring to that with the c c being and her in her adoptive or foster because there are adopted parents now right by the time in a sense having to drive to these trips and their kid being questioned a certain way what i'm trying to understand is that what provision of the law require them to do that was this only the court ordered them to do i'm sure they didn't do this voluntarily make these trips even though driving just the idea that they're out there at their home with the someone that they believe to be their child and yet they are i'm assuming being compelled  forced to make these trips to visit with potential people to take their place what provision of the i c w a required that to happen before provisions that i mentioned it's the act of efforts provision because that says you have to conduct active efforts to have visitations that occurred in all of these cases the second provision that comes from the terminations verdant provision one thousand twelve f because that provision says you have to prove that active efforts were unsuccessful before you can terminate the parental rights and then the other two provisions that that relates to is the fifteen and fifteen be the adoptive preferences and the placement of foster care at option but i don't understand why the act is requiring you to drive you could do because that that seems to be a product of the size of the navajo reservation it's huge if you're if you're talking about a smaller reservation visitations you could try that i suppose talk to the people i don't quite understand why the act is imposing this requirement of driving hundreds of this the act plus the defendant's conduct because it's the state government officials of that that required this type of visitation so it's the state government gave those instructions to these foster and i would opt of parents because they were relying on the act and they were relying on on the federal regulations and guidelines and that also goes to the psychological and emotional harm that occurred in this case and all of those are concrete particularized injuries if you look at cases like mccormick created for her and in that case the court had no trouble saying that alleging that you know that horror that she has to live with the stigma of having you know having the state create an exception for her was sufficient force standing on her to see declaration and damages the same is true here i mean one of the principal arguments that the other side is making is that while the adoptions have been finalized but that that really doesn't factor into the standing analysis at all if you look at the racial steering cases smith versus city of cleveland heights and hayward versus went investment the same was true there would be the public works contractors argued that they were able and willing to bet on these contracts and that they were subject to this racial race conscious policy and that was sufficient to confer standing because stating that is stating a concrete and particularized injury that i understand your position injuries and particularized injuries are be injuries that i mentioned during the opening well let me ask you this if if we agree with you that there has been a particular injury with respect to one of these well we would submit that we were affected by all of these provisions here and in that situation where you would look at is for example davis versus f e c in which the candidate running for office was informed by the f e c that he was violating the reporting requirements of f e c a and he turned around and challenged the reporting requirement and the asymmetric contribution limit requirement and the court allowed that case to proceed because he had a personal stake and that outcome the same is true here the only way that these are the options would have happened the only way that the parental rights would have been terminated war if these provisions would have applied and that also goes to the mootness argument that the defendants are making their their argument on mootness is well  we automatically changed our conduct in this all three sets of defendants did that the biggest change for example came from the federal defendant's between the twenty fifteen guidelines and the twenty sixteen regulations i'll give you two examples one in section three in twenty fifteen they said that jurisdiction transfers are available at any stage of a child custody proceeding when the statute said it is available only in two types of proceedings foster care placement and termination of parental rights second example they change their position on the best one considering the best interests of the child and twenty fifteen they said you should not consider the best interest of indian children are silent in the twenty sixteen regulations same with the state defendants to change their position in  of those five provisions were applicable in this case for example look at eighty situation eleven b was heavily contested in her case in the state court all of these children had to undergo active efforts all of these children's well because it's the imposition of the barrier that creates that and that comes from race conscious admissions policy cases that comes from racial steering cases comes from abortion cases comes from public courts contracting cases and if there is any doubt well it's that but also there is concrete and particularized allegations and if there is any doubt look at the affidavit that was submitted in this case derek you see have document numbers twenty three twenty four and twenty five and also look at the partial state court record that was submitted as supplemental authority in the trial court all of those things point to the concrete and particularized injuries here of the emotional psychological harm the denial of equal treatment of visitation with strangers the added cost both to the parents the adoptive parents and the children so so there is at this point there there isn't anything else that was needed in the complaint in terms of concreteness and particular i defendants request that this court affirmed the decision of the district court dismissing claims by plaintiff foster parents and indian children for two reasons either of which entirely dispense with this case first because plaintiffs claims are moot and they don't have standing to seek retrospect relief and this goes to the point that mr dein are raised we are not arguing that the adoption that the finality of the adoptions weighs in the standing analysis as to the equal protection claims but rather that it makes the claims these constitutional claims in the state courts in front of the judges hearing the child welfare proceedings but elected to file suit in federal court seeking relief from those underlying proceedings and those underlying proceedings have concluded with the successful adoption of the children by foster parents with that this court now house alternate grounds for dismissal because plaintiff's claims are moot if they ever had been injured by a quote they are no longer because will allow further response to mr dre but as an initial matter here plaintiffs have an alleged any claim for actual damages which is a distinction with bernhardt they had understood what you said are you saying that th that under bernhard you subject to similar proceedings again because foster parents are not parents under such that the statute would apply to future proceedings regarding their print all rights they've asserted no exception to move notice they are certain no predicate voluntary action by defendants that cause them to adopt the children for purposes of voluntary sation and regardless the second prong of that analysis it's absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur because they don't  adoptions are final you know i i just if i guess if we say it's moot then what happens the lower court judgment it would be vacated your honor and so we're just going to have another lawsuit so i don't know quite why the government wants to argue movements so vigorously your original motion to dismiss  was based on the contention at least in major part as i understand it that the that the plaintiffs were basically raising a claim racial discrimination and that the law pretty clear that when congress acts with respect to indians it's acting with respect to a political classification and that therefore there is no race based discrimination in the complaint should be dismissed the district court didn't take that position but you are not withdrawing from that position no your honor that i didn't understand that to be directly before the court but we certainly still believe that only that if there were an extended or track family or tribal placement that sought to adopt the child that it must be considered here the complaint says that there were no such placements so we understand from the supreme court and the absence of a suitable unwilling placement that seeks to adopt one nine hundred fifty eight does not apply but here there are legit look we never would have made this visit we never would've done any of this but this act required us to make this visit why isn't that enough to at least maybe on the merits there's good reasons for it but as to injury why isn't that an injury well in this case you have the benefit of the supreme court precedent the supreme court has already looked at this issue and concluded that when there is no viable alternative placement  that the section one thousand nine hundred eighty s preferences simply don't apply and the allegations in their complaint make out those conditions how do you determine whether there's a viable visitations your honor the question of whether there are whether they need to determine use placement to determine a viable per placement is a question of state law and that's also in their complaint that's standard child welfare adopt the children that's also in their complaint that none were suitable when suitability as i understand it doesn't relate to play visits with relates to a home inspection are you saying these kids were required to be interviewed by people who in advance said we don't want them i think i don't know the answer to that sorry i don't know why they were asked to visit with the placements there's not details in the complaint except that it was part of their case plan and i think it's standard practice when there are other placements available that to have they visit understand again it is now they had to find indian placements and had to look at other indian placements and i did you were briefly indicates that this was a requirement of state law but i don't is that correct that w ordinary adoption law does require that you look at family first normally as i understand it but but this is a little bit different in that they had to look at indian placements which sent them out to the reservation i think that's  that's not quite right in that they actually the first preference is for family and in this case i think in fact all of the placements proposed were with family but to your point about the the role of state law here your honor the answer to your question i believe is the in the traceability analysis the trace fair traceability stops when action of an independent sovereign our party and here state law that's the normal operation of state law to visit with proposed placements whether they were family placements under state law or placements proposed by parties for other reasons having seen that my time is concluded if there are no further questions thank you the court i'm dominic traina i represent the defendant mckay and as you heard he's the only one facing nominal damages so i want to spend just a couple minutes discussing how those don't change the mood innocent alice's and there are two reasons for that the first is is a general  yes ma'am he's the director of d c s in arizona part of children's services the first is a general point that we highlighted in the twenty a j letter that six pressed eloquently by the eleventh circuit explaining that nominal damages can never defeat newness and the second is more specific to this court's precedent which is the two thousand and twelve bronstein decision that explains that where a plaintiff asserts injuries soley based on a racial classification being exposed to a system that classifies that's inadequate for damages nominal damages included if the same outcome would have resulted without the classification that's what the supreme court said in texas versus the sage that that that there's no injury if the same outcome would have resulted and that's what this court said and bronstein in a move nissen alice's that's really on all fours with the present case here to be perfectly clear plaintiff's sole allegation of injury is that they were exposed to this type of classification they say  at page one of their opening brief and at page thirty three of their opening brief they actually say that the injury comes from their being subject to different rules on account their race not the consequences that flowed from that treatment option mootness maybe maybe you're conceding that point right now no it's so what they actually argue is is something more like the inherently transitory doctrine which is a subset of capable of repetition but a rate of aging review th know it's going to happen well so the complaint is lacking in any allegations that these people intend to be involved in the adoption excuse me in the adoption process ever again that would be one way that they might be able to bolster their complaint and create a cognizable interest for article three purposes but it's not there and the class certification was denied and they didn't appeal that so the only thing that the other side is asking for this is very important is they're asking for a judicial goldstar saying that they were right and we were wrong about it was constitutionality and that is not a live case or controversy it doesn't have the skin in the game that the supreme court has consistently required to hearken back to is that paragraph i think it's twenty seven when they say they were injured by having to go through this process that is you know you can imagine that process itself the injury regardless of the result they were injured on the day that they had to have their kids go to someone else and told their not their dad tell me why that's not enough i'm happy to do that i am past my time but if there are two pieces to it the first is those sound a lot like actual damages actual injuries which are not playing only nominal and the second and more important thing is that in bronstein that would have been true in that case as well the person who was denied a contract or in le sage the person who didn't get into the graduate program he wanted to attend they were presumably subject to some amount of emotional grief along the way as well but it wasn't sufficient to resuscitate their cases when the only injury asserted is of the specific kind that we were exposed to a classification injunctive relief can keep the case alive that's the northeast florida contractors case but when it's damages have please the court but the on behalf of the healer river indian community and the navajo nation i know it's been a long morning so i'll be brief let me just give from the tribes perspective what we feel is them a straightforward way to resolve this case given that circumstances of change  the adoptions are all complete first as to their forward looking relief it should be hopefully clear by now that that aspect of their relief is moot all of the adoptions are complete they're not alleging they're going to adopt again that is gone so the only thing left on the table then is nominal damages and for the reasons mr grey just explained this court's decision and bronstein is off or is that is when you're out of the prospective forward looking relief box and you're in the nominal damage relief box it's no longer good enough to allege the north eastern florida i was subject to disparate treatment standard you need to show you need to allege that the decision would have been different the outcome would have been different and here everyone agrees that's not alleged the the adoptions were successful the court doesn't have to go to completely dispose of this case and just to address the capable of repetition evading exception rule that the reason that fails in this case is because this is not like pregnancy where you will never be able to raise a claim you can raise this claim each and every time in your state court adoption proceeding in fact goldwater institute has done just that in other cases which we say that's what i wanted yes it's an instant absolutely and they've done it we've cited the cases on page thirty one and thirty two of our brief they did it in state court they lost they sought certain the supreme court they lost this is not capable of repetition yet evading review concerns of that's the first box that fully dispose of this case and i think that's probably the best way to do it consistent with article three the other way is the way the district court did it of course at the time the district court did it the adoptions were not yet final so it had to do that and that's where paragraph twenty seven comes in judge owens of course you don't get to paragraph twenty seven under under the circumstances that we're at now because under bronstein they have to allege that the outcome would have been different and they don't do that in paragraph twenty seven as they don't allege actual damages my concern exactly right but even if you did it you didn't apply bronstein which is controlling obviously in this circuit and it's really on all fours even if you applied northeastern florida under paragraph twenty seven the district court was right and the reason why judge owens is you're right that is their best close is they come to alleging actual injury but there's another part of standing you have to allege the injury but you also have to show it's fairly traceable not just to it was in the ethos but to the specific five provisions that they allege the only ones that are even in the ballpark are active efforts one thousand nine hundred twelve but the supreme court said in adoptive couple and it's plain when you look at the text of one thousand twelve d the placements there the active efforts have to be a condition to parental term a nation the placements involving c c happened after parental terminations they never allege in their complaint that any of the alleged placements driving across the navajo nation reservation happened before the the terminations of print all rights they do not allege that anywhere in paragraph twenty six to twenty seven in fact our understanding is all of those happened after that so one nine hundred twelve d is not even in play are they doing  so the state court has inherent authority in an indian peace or non indian case any time anyone comes forward to ask for proposed placement it can order on its own authority to do it and no they have not they have not alleged anything to show what the basis of those were what we do know though as a matter of law just on the text of nine hundred twelve deal in the supreme court's decision adoptive couple it could not have been based on nine hundred twelve returned oh oh because well one is they've never alleged that any of those placements were predetermination it's their burden their complaint and two again i don't want to go their complaint they had an opportunity to amend their complaint because of these standing concerns a judge let them amend their complaint this is their first amended complaint they still have not alleged that any of those visitations happened pre terminations which is  requirement one thousand twelve now the all the other provisions that would kick in are nine hundred fifteen a and b there it's a slam dunk under supreme court's decision an adoptive couple look that was a loss for the tribes adoptive couple cut back the application of the indian child welfare act but because it cut it back it is no longer in place of for that to bring a constitutional challenge on the fact that nineteenth is on the supreme court and that was a u s supreme court decision and here's a quote from the u s supreme court an adoptive couple this is that page twenty five sixty four of the supreme court's decision it's quoted on page twenty nine of our brief there is simply no preference to apply if no alternative party eligible to be preferred heard under nine hundred fifteen has come forward it is undisputed in this case that no party eligible under one nine hundred fifteen ever came forward to seek adoption or foster placement of these children therefore under the very interpretation of one thousand nine hundred fifteen that folks allied with the gold water institute one in the supreme court nineteen their interest cannot be fairly traceable to nine hundred fifteen and therefore even if you are in the universe of northeastern florida which are not because the case is moot you only have no the tribes proposed the placements now it's up to the district court whether to allow those placements what i can tell you as a matter of law though that the state court was not required to order those placements either out of any of the specific provisions they allege because as i said active efforts doesn't apply post parental to emanations cc's parental rights were terminated and they don't allege that any of the placements in paragraph twenty six or twenty seven happened before that parental terminations and c c is the only one they make the argument about active efforts to win their brief and then nine hundred fifteen again as i said before we know as a matter of law that was not the basis for the i'll like to start by addressing the mood in this argument because i think that's the that's easy to discard in this case flanagan's enterprise is the eleventh circuit and bang decision the court granted rehearing on the merits question and after that the point that the defendant cited for namely the nominal damages and to declare a true relief for those for those remedies you have to look at the abortion cases you have to look at the race conscious admissions policy cases you have to look at davis versus  was the past performance of the plaintive was so bad that he could not have obtained the public works contract that's not the situation here the adoptive parents have shown more than adequately that they have only considered the best interests of these children in fact eighty's parents learned the native language so that they could transfer that native culture to her so there's there is overwhelming evidence that the past bad performance as w as the case in brownstein is simply not applicable so that's why brownstein really is not on all fours with this situation the other argument that was raised is you know the state courts could do side all of these  cases but the simple fact of the matter is this is a federal court we have federal question that are presented to this court there is no there is no requirement that you know we should it's rather odd that we would require a state court to weigh on all of these issues in to the defendant's conduct and both of those are enough to satisfy the fair traceability requirement of standing on the deck limited judgment aspect you know you have to go back to justice holmes decision and nixon versus harnden which was the texas ban on black voters voting in the primaries of justice holmes said it has and it has not been questioned for the past two hundred years that declaration for relief is available by pointing to backwards looking injuries that happens all the time you know someone trespassed on my property injury in the past you know give us a declaration give us nominal damages that that conduct was wrong if there isn't  statute of limitations but that's not an issue here we had ongoing proceedings and you're saying that the only limitation on this declaration of relief is some limitations right now because i  mean that's not the constitution i mean less than some change there's no statute of limitations in the constitution so for any trespass by a government official which would be a fourth amendment violation it would be forever that's right and church is not injured in the sense that that a woman is injured in that instance but that stigma that the fact that that sends a message to the public that sours the relationship between the church and the city was enough concrete and particularize ation of injuries to go on for standing in that situation at the same is the case here and again look at babbitt which is which is the which stands for the proposition that the apple least change their conduct and sought not to apply this provision of the tribes came before you and admitted that the tribes could have presented an alternative adoptive placement but that does not make this not certainly very much counsel thank you to all the counsel this case for outstanding argument very very helpful and the briefs as well this matter is submitted and we are adjourned mr shaw i am assuming you were not at the warriors parade yesterday in oakland  he's a big cavaliers fan that's why