morning or  prohibitions and compliance requirements on all accredited adoption service providers without notice and comment and without fully considering the far reaching harmful consequences of the rule adopted the threshold question as appeal is whether  very adoption service providers being regulated and to challenge that regulation under this court precedent the answer is plainly yes and if a standing is self evident because as members of the object of the role and even to work self evident are you there is some question about who the object of the role is and if a amply demonstrated how this will harm its members as subjects them to sanctions for engaging in long standing comment and beneficial adoption practices in addition and for main the same reasons and see if have standing rules also invalid unless stet standing point mr had a i think the question is whether the declarations are sufficiently specific identification of recency of you know actual sort of frequency of these cases there's a lot of quite on point but also very general statements in the declaration certainly  and it might be helpful to look at each of the different prohibition separately so st it was a prohibition on what we called pre eligibility soft referrals which is any discussion of a child even anonymously before that child has been deemed eligible intercountry adoption by his or her country of origin as our death oriented as the record makes clear this creates a catch twenty two in countries like taiwan the united kingdom uganda nigeria and pakistan where eligibility is not determined until a child until adoptive family or parent has been identified and is pretty far along in the adoption process as far as specific references and see if a member marry mu as a one hundred and fifty talks about in taiwan that the country that there is no documentation indicates children are eligible for adoption until after parents have been identified similarly in their declarations lucy armistead and robin sizemore ajay thirteen and thirty three respectively talk about their agency's practices and non hey countries where children not me eligible for adoption until after adoptive families in the process both of these members in a particular mess more emphasize their work in these types of soft referrals and see that they have not been a engage in these referrals prior to the rule going to effect and they have ceased doing it and would resume doing so or the rule they key to the other end in the armistead declaration you're looking at which particular paragraph that you think is most on on most specific and on point in describing the the organization involvement in this kind of priya legibility referral so i think six and seven of the five more declaration is where she speaks most clearly to it she is when she talks about when doing so was in the child's best interests to be making it so i'm just trying to really develop what i think the district court was was concerned about and i know in part and maybe less with the privilege ability than with the match part it was concerned that the that the rule didn't apply you know by part of more by its logic i think that that argument is pretty general you know prior to february th twenty eight dollars an a b i occasionally would make a b i would consider a b i would perform and you know it's very general we don't know you know 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 cases for the concreteness and the actually impending nature of the injury that's that's identified in these in these declarations for me and you know there is a bit of a challenge because there's confidentiality concerns about discussing specific close adoptions and it's impossible to predict what adoptions may come in these are as miss miss sizemore mentioned these are primarily non hague countries and adoptions in countries are not signatories to hate and to be more unpredictable and it's every adoption truly is different because you don't have a governing international system what might help here also is a declaration a supplemental declaration a doctor dr dean on your boss child of interest would be available for them to adopt at the end of their home study the district court found this to be today because miss peril seeing didn't explain what she meant by some assurance but she did she said some assurance the child would be available i think on  a question about frequency it's hard to gauge specifically frequency boy kensei in a softer perlis are used overwhelmingly in special needs adoptions were children need often times specific advocacy to find families who are willing and equipped to take on the challenges of caring for a child with severe medical or developmental needs or taking on a child who is near the near the age of leaving the foster care system in his or her country and these adoptions often in fact a guide to good practice document recommended agencies should what's called an adoption terminology rehearsal clo 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 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 well you can line up and do the home study for such a family but your point is that they might be willing face 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 so imagine a case where a family of a child say a bleeding disorder and is interested adopting of a child with the same condition and finds out that or find out there's a child in a foreign country who has disorder and that cost thousands or tens of thousands of dollars in days that are going to go through your finances go through your criminal background checks talk to your employers and your friends your family inspect every pornographic house at the end of this long invasive expensive process maybe you can adopt a child that you came to us were maybe old op some kid who has a different issue or no condition at all a lot of families particularly families who are of modest means are able to make that commitment their players that there are families who special needs begins which is exactly why countries like china have created special programs that allow these pre approval to occur to him out i'm sorry to interrupt but how would someone learn about that child if they hadn't been approved this may be helpful clarification so when we're talking about eligibility we're talking specifically about the regulatory eligibility for intercountry adoption and this is a either a distro or administration process in every country determined not just it's apparent that the child is adoptable meaning the parents are dead or no or competent but also that intercountry adoption in particular is in that specific child's best interests which requires a determination that they're not likely to find an adoptive family within the country of origin so many countries i missed mu talks about in taiwan in particular they make a preliminary terminations of the child is adoptable and that allows agencies to begin advocating but the actual determination they're eligible for intercountry adoption is me until the end of no this is actually what common in the united states and saw scared option but a child is committed to the care foster care print all rights aren't terminated because the hope is that the parents who may be carse aerated are who are 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 if that doesn't happen and the course of time in adoptions in the best in the child's best interest then at the very conclusion the court makes an eligib determination severus parental rights and transfers rights to the new parents it's very common to separate this and mistral adopt ability decision from the actual eligibility for intercountry adoption and in addition to the  adoptive family has to spend on this process before the home study is complete it certainly there's education acquirements i believe are minimum of twenty hours and that's just classroom time there's also homework an additional reading a lot of agencies will have something mental requirements about specific countries and civic needs and then that part of the homestudy in addition there is the immediately multiple means at home with those who are at least three meanings you have to right statements about yourself your family answered numerous questions so i'm not sure the exact requirement here i probably guess you know well over fifty possibly up to one hundred hours i think the center for adoption policy and in his brief mentions that the average cost for a home study is around c training or consultation with doctors that's helpful and then just in terms of how off hold works my impression from the record from the briefing is  that the adoption agency will do one of two things or maybe both and you tell me which which of these they do once they put a hold on a child they no longer tell they no longer tell other adopt prospective adoptive parents that that child is available or they no longer let other adoption agencies  where a an adoption agency will make a match and if the foreign country approves the whole then the foreign country will no longer make that child available to other adoptive families until the whole until the doctor is complete or until the family either let me go go ahead and i did i was going to change topics so the target of the hold rule was more when an agency is holding contrary to the ability of the of the foreign country to make a so match for example or make the file available to other potential agencies or parents so you describe you know the foreign country approving a hold and i didn't see that is the principal that its initial guidance describes a broader range of conduct intended and said that participation in a program approved by a foreign country does not guarantee that you are complying here so it's it's it's a a country requires but in addition it goes further and says you can't do anything to discourage or dissuade other family or another agency from adopting and that's very broad terminology as steve has explained how far it goes is telling people we have a family has their heart really set on this kid and is far along in a process that would be discouraging to me about a nd i would feel bad about going forward and possibly upsetting that mash state has also said there are limitations on what we can say to foreign countries what we can advocate for in those  countries and the the approach and maybe terminal logically the idea of a of a agency making a whole doesn't make any sense in this context because it's foreign countries who determine whether to accept a mass foreign countries or determine whether they will allow  interested and this child there is no it it's not as though files are unique these are electronic files where if a cunt if a country chooses to send it to one agency they could also send it to another agency i think the real backdrop here is that and invested in one child it makes much more sense for china which has an interest in making sure all the children adopted it to spread it sprout the work and make sure every child is being advocated for and the effects of this rule as explained by our single year in the country that are members of particular this peril singer said has been the most affected by this because there has been a longstanding and very successful program to advocate for special needs kids and agencies are now limited in their ability to fully that compliance obligations maintaining documentation but that that seems that you know that the guidance is pretty clear that it's only encouraging i meant having documentation that that alone wouldn't support standing if we didn't have the effect directly on the practices that the agencies would wait i'm not sure that's true i mean it encourages the same way the i r s encourages me to hold on to my tax returns but it's not just in the guidance that these compliance obligations come it agencies have the burden to show that they are eligible for accreditation and if there is a question a complaint a spot check by the president today they have the burden to show that they are complying with that rule the state department has entirely delegated sole authority for accreditation adverse action to a rd party a e me and that the only control the state department exercises is the regulation and contract that says the credit entity asked to follow guidance as though it were equal to a legislative rule that is currently making demands of agencies to show specifically when they began to document their complying with the rules of these compliance obligations run to every agency they have to show not only that follow in every in l 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 so we didn't pomeroy or a few reasons the st is that we reasonably believe that our standing was both self evident and established based on the initial declarations they were filed in response to something states that it opposition to our motion or summary judgment when he said and see if a still has not identified a member for at the district judge held that under twelve be one so as i take it you know as a matter of preceding our motion to dismiss that there's no  the rule claim can we do that without also holding as a matter of summary judgment that the record supports standing and is there any limitation our ability to do that  here i think that it's the decree where the judgment was to enter judgment and yes we'd have to meet the summary judgment standard but i do believe that since we have relied on the ministry of record and submitted declarations we have gone beyond the  matter of summary judgment that we have standing and i think in particular even though the district court ruled on told the one grounds the consideration of facts and not just accepting the allegations as true i think did go to a summary judgment type of the rule so ordinarily if a district judge is going to convert a motion to dismiss to much of a summary judgment they have to give notice and i take it your position here would be well there was briefing on summary judgement so that's enough notice and then you know the district residents had a lot about it but in finding that it was prejudicial for the nd declarations to be included with the reply and i can ask this of miss lopez but presumably their potential prejudice would be if they wanted to put contraband i mean on a summary judgment sequence that would be one of the things one would th suspect would be a source of prejudice and why isn't that a problem put on contract into could have done so in summary judgment and it whatever reason i'm not sure why chose not to do so mr harry did you file a d statement of material facts policy difference for a few reasons one is that this is a statement that is binding in effect on every gypsy and discordant appalachian power talked about guidance document websites that are up have the effect of legislative rule if it's binding in the field no child should face a prospect of abuse and you know in a placement or no adoption should be unnecessarily delayed for you know just i'm necessarily delayed where the best interest could be met by more prompt action those would be more more specific rules but wouldn't they also just be policy interpretations guidance you know clarification of the best interest of the child standard and not separately required notice and come here and two points in response to that quickly or on our st is that i think it may be theoretically possible to say you could say we have determined that this specific act is so harmful that it cannot be done in any adoption consists of the best interest of the church of the trial if they didn't do that here what they said in fact is that these are often times harmful to children which means that they're kind they're not harmful to children and there are times where soccer that a interpretive rule must be fairly viewed as in computing an acura regulation there is nothing interpretive at all about the sought to for all and never cites quotes engages with any and any statute or regulation or the convention in fact the only part only  themselves or others interpreted policies that it leaves are consistent with this court has said repeatedly that consistency with the rule is not a hallmark of interpretation and plenty of things could be consistent with the rule when an agency is choosing amongst many in particular because it never deviated from the regulations to us again there is no engagement at all with the regulation here in fact i think you've already mentioned a few places where you can you characterize the the agencies as treat in the guidance as mandatory having a binding legal effect some of the briefing talks about that way but where would you point me in the record to the best evidence that and i think the day after the f a q was published we don't have any in force when actions and there because enforcement actions are taken by a rd party they wouldn't even be in states administrative record but what i would point the court to is a few things in the adoption academy brief piece thirteen nation on that basis so we think there is strong reason to suspect that the accredited entity will do as required to do and enforce the rules as though they were legislative and just a final point response or question legislative rules or the convention and more more directly it redefines what best interests of children mean this is a a very common term it's probably the northstar to most areas of family law and in all states all countries under the convention as are of the center for adoption policy explains this is a case by case fact dependent decision looks to the child's needs and what would be in that child's best interest the state department expressly in its no surprise rule making back in this locos morning it please the court carolyn lopez on behalf of the government 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 and so i think we're all on the same page but i want to make sure i'm in a take each in turn that narrowly all the guidance says with respect to children who have not even yet been deemed eligible for match correct you're correct and the reason for that and there that's because you know as the state department described it would it boggles the mind that you would need a specific regulation and this context in which for a child to sort of even come into this context know the example of taiwan for example which we're you know i'm talking about yes that actually mischaracterizes what's going on in taiwan and i think it's really important to drill down into that because that's actually a mistake made both in describing ms moos things as we talk about in the brief and also in some of the declarations that talk about that terminations of parental rights and so that there the confusion there is that the distinction between the terminations of parental rights which in some countries doesn't happen until the end and a determination that the child is actually eligible for enter cut country adoption and those are not coterminous and we know those aren't coterminous from the articles of the convention themselves  article four c recognizes that the termination of parental rights isn't always necessary for a child to be determined to be eligible and also articles twenty six dollars twenty seven cents of the convention and so when you when one looks at what  to be adopted and so this state department took her at her word that what she was talking about and taiwan as children who may be who have already been determined to be legally adopted and then again at j one hundred and fifty she talks about how these are children that have already been registered and taiwan i e registered for adoption intercountry adoption and that a determination has been made by the orphanage and if there is even following your position is that an adoption from taiwan could could work like this  the government of taiwan declares a child eligible for adoption even though the child has not been even informally unofficially matched with an with an adoptive parent then the adoptive parent can do intercountry adoption no no your honor that's not what i mean at all what i mean is that and thank you for the opportunity to clarify that a lot of this confusion arises i think because plaintiffs  don't don't tell me what they said just shut me tell me if you know i would well sure so and i'm not adoption in taiwan it works this way taiwan a says this child is eligible for enter country adoption are going to add them to our registry the child is then eventually matched with a parent as part of that's how held officially held 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 it's only when the adoption service provider is doing the holding instead and such a way that prevents other families from considering the family or taiwan from making a different choice that it's a problem so there could  e something that prompts taiwan to hold the child was not allowed so as december twenty one thousand guidance made clear the agency can continue to advocate for their family but what they can't say is taiwan you should adopt country government allow a hold its own individual case so they may two thousand and nineteen guidance december guidance says it's ok for them to continue to advocate for their child sorry for their family but they're representing and to say we think that you should still 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 final and so but i just want to get back to sort of the distinction between the i just wanna make her on the same page about this distinction between the term nation of parental rights and eligibility for intercountry adoption 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 four article four determinations so the child is actually eligible for adoption the  the child that intercountry adoption and not domestic adoption makes sense and rd that if there are any remaining parents so and there would be with this terminations parental rights question that there's been free and non coercive to set 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 and then also the hague convention recognizes that in some countries there's not a terminations of a total terminations printer rights and  some sort of relationship thereafter and so it's really comparing apples and oranges and i just want to emphasize again that mary moo which is the the one sort of record evidence that they provide she herself says that taiwan is talking about eligible children who have been registered and jay i think it's to say it's either two hundred and sixty three dollars or to sixty five dollars after the may guidance is issued and after she's asked these questions she says the state department has answered all of her questions taiwan declares the child eligible for an intercom tree adoption before the child has been even informally matched with any american parent then the adoption agency informally matches that child with an american family and the adoption agency hopes the taiwan will hold that child but the american agency is not allowed to request that taiwan hold that child then taiwan completes the last of what's required in order to terminate parental rights and make the child completely one hundred percent eligible for an adoption and then at that point the child goes to the american family site that's all that would i want to allow that to happen and the state department i actually can't get that much more  doesn't doesn't do you outside of pretty in particular record but i do you say that i can say that that generally seems correct to me up and i do want to do you just clarify one thing again looking at articles twenty six  twenty seven cents of the hague convention determination of parental rights sometimes doesn't even happen until after the end of a final adoption and so just and this is really why it is apples and oranges the thing that has to have been done is that the child has actually have been deemed eligible for enter a country adoption and the question of what happens with the terminations of parental rights as a form of matter varies country by country and as the person as the one person who brought up taiwan said the state department's guidance answered all of her questions and then ok so that's sort of the eligibility piece and then if i and i'm happy to sort of talk through any of the individual tackle aeration but i also wanted to make sure that we talked about the one can imagine that a parent could consent to the child being legally adopted by other parents but might want some sort of continuing contact with the child and so that the hague convention itself clearly separates out those steps so article four which is the article that's all about how the state makes that eligibility determination article four says foresee says including including that prattle consents if you made including in countries where that will result in a terminations a parental rights that they've been that they've been appropriately apprised that that's one of the comments from the interaction of the child with true parents what determines what will that's vested with the country of origin and it's it's in their discretion to determine whether one of the factors have been made which have as we've been discussing might be that the child's been abandoned might be that the state has made  finding that the parents aren't competent to raise a child might be that the parents that child's parents are deceased so those are that's a question of eligibility for adoption generally and then there's a secondary question of whether intercountry adoption is in the child's best interest or staying within their country of origin is in their best interest and if there are surviving parents that parental consent piece that we've been talking about you might have parental consent without having gone formally through a terminations of parental rights the parents are prepared to do it but it just hasn't happened and as you say it could be useful to have a strand of parental right remaining as sort of like real i mean this is a crass but real estate you know contract closing that there's there's a reason to have two different moments when everybody understands what the plan is but it hasn't actually been effect and that's very country dependent sort of which whether whether printable terminations parental rights is sort of six of her of her declaration she actually specifically says that the types of software for roles that her agents used to engage in were between adoptable children now adoptable children that's exactly that for a definition that that  adopt ability has been determined so she's not saying that she's that she's matching children who are so i don't understand as lopez that there's been some kind of misunderstanding bar on against holds and that it may some of the to clarence may have mistakenly read it as borrowing more than it does but what about the  sizemore declaration which addresses only privilege ability to options meaning where the family hasn't had the homestudy it seems like that's been that's been more clearly understood and why doesn't that declaration e guidance for hits referring children have not yet been deemed eligible to what she actually does so the two types of things that she's talking about are special needs adoptions and kinship adoptions and with respect to special needs adoptions those are eligible children they're not ineligible children 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 and then the other thing she talks about is kinship adoption and here again it's a very concludes research we don't know exactly what they used to do how often they used to do it and whether they're likely to do it again in sort of a clapper sense and that's particularly under favorable to the non movement and if we do that with each one of these matters that you're taking apart and i think very artfully you loose no your honor i don't think so because even at the any stage whether that's the pleading stage of the summary judgment stage the court isn't to fill in logical gaps between what they have actually said and their declarations and what i'm in the state department's view they have left those gaps and so we don't know tell us more very precisely what you see as a gap you you said a few moments ago that you thought that the sizemore declaration hadn't done enough even though she's describing correctly describing the the practice and when she talks about family recruitment she there's no question on that side of the equation about the holden you know when something is deemed to be an impermissible and when it's not she's talking about can we meet was the issue mr hay was was describing in some detail can we as an agency work with a family that is particularly been and the answer to that is yes i thought so i just want to i thought we were talking about sort of a part of sizemore that goes to eligibility of children so the guidance makes clear that if what she's talking about is matching and eligible child to a family that just hasn't undergone it 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 ability to make a different  choice and the reason that i think she sort of does i agree seem to be talking about that as at times it's because when she's talking about recruitment like again recruitment of children with special needs are eligible children and similarly she sort of talks about the need to educate parents about department clarified that in fact adoptions of service providers can accept applications from families who have pre identified a child including and relatives situations consistent with incorporating the limitations in article twenty nine express incorporat the interpretation and in article twenty nine and so because we don't know she just says she has changed what they've done in kinship adoptions but because the guidance allows them to still do things and supposed specifically as a you know question for about that we just she would just have to give more details we don't know and even at sort of taking all inferences in her favor she has to provide more explanation what we have to say i'm i'm just really trying to understand because obviously level of specificity is a hopscotched immediately seized certain recruitment efforts to comply with the gardens and even limit our ability to complete kinship adoptions so she would have to explain how limited her ability and can ship adoption so if for example it's just that they stopped accepting applications from kinship adoptions that would be sort of a self inflicted injury because q four tells them that they actually can do this she'd have to actually say the reason to stop kinship adoptions is because we were proceeding with kinship adoptions involving ineligible children it's a pretty short sentence and it's something that's within entirely within their knowledge and not the state department's knowledge and terms of what they actually do but as judge rend adoptive parents are on officially not before the child has been done by the foreign country eligible for adoption and then she basically says we've been doing that and we were good about it and now we're not so i think the problem there is when she says it's sort of not it's piecing together different parts of her declaration one is that she does understand correctly that the guidance does prohibit referring ineligible children but then she when she's talking about the types of practices that they engage in she seems to she seems to be talking about the other type of software for all which is a software for all of an album eligible child to families that may not have completed their home study adoptions and that's about that's what we're talking about when we're talking about recruitment of children that this sort of those photo listings in the special needs programs those are all eligible children they're not in eligible children and sort of i think that they they can ship adoption gets the  closest but but even there in light of question for i don't think she does and after describes you know sort of even in summary judgment sort of conclusion really saying without any details how often we you know what exactly you're doing when it's and totally within your own knowledge is insufficient you know and that sort of that's our view of why the sizemore declaration is in an insufficient if i might turn to i'm having a 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 two to actually have standing to challenge those the relevant portions of the guidance with respect those are challenging the gu mean i don't think they're challenging to a certain sentences right and either injury on the all of the pieces of the guidance addressed both practices 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 so the guidance in order to save the gardens as a unit needs to be we we think that they would i mean there we agree that there are certainly parts of the guidance that speak to both types of software for roles but also that there are parts of the guidance so for example whether or not a child is eligible in the st place has nothing to do with hold so the part of the guidance that has to do with adoption service providers doing holds instead of the country of origin is doing them just aren't implicated that sort of part of the guidance isn't implicated at all by this eligible eligibility question so in our  view you know sort of anything in the guidance that sort of fairly 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 but the parts of the guidance that really are discrete and come from discrete pre existing obligations you know they would need to show that somebody is actually doing that 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 and doesn't say with respect to parents who have been completely undergone their home study evaluations especially with respect to the program and china that is not something new that's talked about in the december tw guidance which i'm sort of surprised to hear plaintiffs say completely changed the game because in their opening brief at page thirteen no three they say the new new guidance does not change the scope of the rule that's exactly the state department's position the district court how they just as a district court correctly recognize for example j ninety two no four and j h u eighty six the march and may guidance already made clear that this wasn't some sort of broad categorical ban and instead with respect to this particular question but 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 on the same page that it's just about the 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 from asking about  child or interfering with with those adoption service providers reaching out to the country of origin and specifically with respect to the china program as early is j fifty nine dollars through sixty which is that  march guidance the guidance comprehensively discusses the china program and specifically says that it isn't saying anything about china's ability to hold that file so if a nd family comes to china china is free to say no we're still holding that file for that family and that's completely consistent with the statements from the chinese central authority which point j one hundred and four in which it's clear that china says which is reflected in what the guide and says as well that it was never china's a ten intention that the files would be sort of a locked away just for the agencies that originally posted them they always intended different adoption service providers should be able to reach out to china it also makes clear that is china that does the locking of the file and not the adoption service provider and that really makes sense with the structure of the hague convention which that's not sort of older men authority over what should happen to the child in a central authority in each of the countries and it's not sort of farmed out to these individual adoption service providers to interfere with that ability to make that determination on the standing issue is there additional evidence state would present at s understand the district court's predators so the way i actually understand the district courts analysis here is entirely consistent with this court's warning in such cases as sierra club in which see it 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 its whether it abused its discretion and not letting in the declarations and what sierra club has long put folks on notice of is absent good cause and i haven't heard anything here to say that there was actually good cause here at the st available at the st appropriate moment in litigation where serious question of standing has been raised they need to put in their evidence and as we've been discussing that was clear from the motion to dismiss it's always been the state's position that the guidance isn't this broad categorical ban and then when they filed their ten as we've been discussing when they filed those ten declarations the state department's reply brief said no these are now for the exact reasons that we said before and the same reasons that i'm discussing with your honor's today and then they're here it was simultaneous motions for summary judgment and so again the state department reraised that exact point that they didn't have standing and their opening brief the state's opening brief and c f a didn't attach the replies the additional declarations to their response to that or to its own opening brief it really is a district court said sitting here today i don't know whether or not we would have filed additional summary judgment evidence but what i will say it was that richard is the prejudices that is that there shouldn't be sort of these like shifting  declarations to so for example nor abbas and his declaration i can't speak to i wasn't a trial attorney i certainly can't get to get out in front of like what my client would or wouldn't do but just myself looking at the declarations one of the things is that is your position that you would have filed some kind of additional evidence and if the response would be futile and so i think it's appropriate to concede that you know i mean i i apologize your honor i mean i you know 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 right what i can say is that that sort of flips the way this is all supposed to work precisely because a party should have time to figure out what evidence makes sense to put in and to not put in parties aren't supposed to wait until the th hour to put in this new type of evidence that was entirely within their control although it's it was a little bit irregular the way the district co handled it in the sums the district judge had not ruled on the twelve b one that he wrote that he ultimately granted before the summary judgment briefing but called for summary judgment briefing and it is a fair inference for the  plaintiffs to think that their explanations of how these documents affected them was sufficiently detailed and therefore he did establish standing and then when they hear see the arguments on the cross motion and they think will we better we better bolster this because actually you know status is taking this is a seriously still in contention when we for some reason light of the procedural handling of the case for some reason thought was not really still does you know your honor for a cause i would disagree for a couple of reasons i'm st it's not as if the district court said i have found that you have so it just right put off that decision and nd of all because the state department renewed its standing objection so they knew from state the state department's opening brief that the state department very nude are standing objection the st time after that that they would have had to response 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 sixty ordinarily if you're faced with summary judgment and you want an opportunity to put in evidence you're in you know in your next filing would say hey we really haven't really been able to do that i mean i think our point was was more the point that sort of going back to the sierra club case that the way that that the ordinary presumptions are that parties are supposed to put these thing it things and to be fair to the parties opposing standing at the earliest possible moment and litigation and that when they don't do so and they really waits the th hour like this they should be struck i'm also happy to talk about why neither of those declarations actually get them what what federal  authorizes the district court to strike i think that's consistent with this court's jurisprudence in sierra club that says that parties shouldn't shouldn't assume that consider filing in a court officially strike maybe it's a matter of form over substance but just on the question of form is there a federal role that allows a district court to strike something to n d i mean i mean and it may it may sort of be a sort of matter of form over substance and that if given that the district court was 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 the same way and isn't a reason for the court to now consider those declarations were to reverse because it would be the same decision at the end of the day  standing should we just go ahead and decide the notice and common issue there's not really any point if we don't we as we said in our brief we don't again we don't think that there is actually standing but because that's a legal question we don't object to sort  of in the interest of sort of keeping the the wheels of justice moving to addressing the merits question and i'm happy to unless you're on i want to talk about why the supplemental declarations don't get them there anyway i'm happy to move on standing  one that has the effect of altering conduct or or announces clearer and crisper details on how a standard like that here at the best interest of the child standard should be understood does not become legislative where as in general motors versus rock a house it's just reminding and tities of preexisting obligations or is this court explained most recently and poet where it can be fairly drawn from those preexisting obligations and i'm like them here or the guidance doesn't actually purport to construe language and any statute  honor i would disagree there i think you know they may not have parsed out individual sort of regulatory sites but it j a sixty two and j fifty nine they talk about how these types of software for roles are inconsistent with the hague convention and the intercountry adoption act and the regulations and then again at that question one that we were talking about they were explaining that they were interpreting preexisting regulations and what they also do is they  go back to you for example interesting regulation they say that it's not they're not announcing a new policy but that they're actually implementing a longstanding policies from the two thousand and six regulations right   regulated entities and everybody understands as well as sort of evidence by the briefing that what they're interpreting is the best interest of the child standard and they're interpreted in the best interest of the child standard in these two areas that are really critical and so we talked about this briefly before but that this st thing that of course a child's you know what's so fundamental that a child has to actually be eligible for intercountry adoption in the st place before they're referred to families that a prior debarment proceeding by the state department set the hearing officer there said it boggles the mind that you would have to have something more specific than what already exists in sort of the hague convention and the implementing structure and then with respect to this question of putting and we sort of we describe that this is the sort of regulatory regime in our brief as well but in terms of understanding how this works in terms of the holes in the interference with countries the guide that really has to do with determination that parents are actually suitable to adopt is also a really important safeguard for the best interests of the child 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 the site at the end of the matches i mean no doubt from article seventeen for example of a convention and we also know that these are incredibly important safeguards from intercountry adoption act itself and that's because conforming to these homestudy requirements is actually a requirement of accreditation and a willful violation of that standard actually is automatic non substantial noncompliance and that context the state fairly drew from those that where 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 longer institutionalization and has also led to home study agencies saying that they felt undue pressure to actually approve families because they're essentially told it's this family or nothing and the reason they're told it's the family or nothing is because the files are sort of being kept away from other families that might potentially be interested and they said that they felt either under pressure to actually say that a family was suitable when it really wasn't or to actually entirely get out of the program and interestingly one of and c f a's own declarant armistead said and 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 so it's sort of a a well documented problem and there 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 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 acknowledge that there could be things that categorically so obviously violate the best interest of the 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 ok and then although the very important and the confusion that we are seeing and suing would seem to suggest medicine comment would be 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 and also i just want to emphasize here that the administrative record only some of which we've excerpted here is seven hundred dollars pages so it's not as if the agency sort of this as a fly by night thing they were responding to emerging problems including in its department which was so serious that it was the st time that the state department had actually taken department action itself rather than than the accredit vast difference between cause ation and correlation and so here even before any of this guidance was issued i apologise i don't remember the j site about this but the state department explained that intercountry adoptions generally were down because a lot of countries were focusing on placing children to massacre rather than enter country and then similarly one of the reasons that options and china might be down frankly is because the  to mischaracterize the guidance as saying that they couldn't do these types of adoptions even though from the march as soon as a march guidance that j a five thousand nine hundred and sixty the state department made very clear that they could so if part of that decreases because adoption service provider for sort of voluntarily injuring themselves by not participating in the program that's not a problem that sums from the guidance itself you were advocating that this is just an interpretation of the best of the child we have been offered examples of situations in which conduct contrary to the guidance appears to be in best interest so how do you respond to that we're locked in is to accept your what the that's the state department's position both in this guidance and through a formal department proceeding but i but sort of more and that's it's 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 the very st substantive procedural step that's supposed to be taken is this determination about whether the child is even adoptable in the st place and that makes sense because i mean sort of intuitively because once a family knows and you can proceed so sorry i'll try to be as quick as i can so sometimes a parent will who can't take care of a child for a little bit will drop the child off temporarily in an orphanage with no idea that the child might be put up for intercountry adoption if that child isn't eligible for intercountry 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 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 a categorical rules as plaintiff has you know set a rgument as well are i thank you for all the additional time yeah and we gave mr a ample additional time and we appreciate the detailed informative arguments on both sides mr hey you did not have additional time consistent with the overarching goals and purpose of the intercountry adoption laws and consider it may well be we don't think it is but it may well be what is course says repeatedly is that consistency is not the hallmark of an interpreter old many things could be consistent when an agency is using its authority delegated by congress to choose a way to enforce the laws that is a legislative act that this court set in catholic health initiatives for example that this sort of policy setting is a ever to go there knows and comment presumably state police every regulation of issues is consistent with children's best interests and if they could use that term to interpret what specific allegations they think support that interest there would be no reason to go through notice and