court and for the united states given the importance of this matter i would appreciate the opportunity to reserve two minutes for a bottle you could do that even on point and thank you yeah it's common practice last week the supreme court in a parallel docket case issued a stay of an order that granted the same type of record expansion and discovery that the district court here or really did and the case that the ninth circuit freeman because the primary difference is that the order here is actually brought in that it covers not just materials that were before people who prided vice the acting secretary but also materials that were provided to considered by people provided by to the attorney general you know to be sure there was a difference coming in the other direction which is in the ninth circuit case there were white house documents involved but that couldn't have been decisive to the supreme court stay because otherwise they would have limited the stay accordingly the primary focus of our mandamus petition in the supreme court and in the ninth circuit was the materials that were considered by people who made recommendations to the acting secretary and we got the sta across the board for all of it not just on the white house but could you address that the i thought it was common ground among the parties that the definition of the administrative record  not like this one i think in directly considered could for example cover if there were factual materials that were considered by subordinates and that was passed on to the actual decision maker and it  was passed on to the actual decision maker then it was presumably considered directly but without the necessary life laying eyes for example on the factual evidence perhaps that's what in directly considered covers but we know it doesn't cover is deliberat advice from subordinates courts have repeatedly recognized that deliberative advice is just simply not part of the administrative record the d c circuit has repeatedly l that judge angle meyer has an excellent opinion in the district court but is that different from the complete record that the decision maker considered in making her decision we think that's the difference between materials they may have had entered into subjective reasons and the complete record the decision maker we don't think that deliberative materials are quote unquote considered within the meaning of that hand circuit so wouldn't deliberative materials be essentially privileged anyway when i'm the queen is what what the order talks about is the documents that e about substantive documents that came to the person who advised the decision maker that's different than what advice was given by the decision makers and potentially it is in a case unlike this one where the decision that is being made is a factual evidence really one that might be well true that if there was factual material in front of a subordinate that might be what is in there and like well how do we know that there was you are you re presenting to us that there is no factual material that was considered by any of these individuals who advised secretary duke representing is that there is no factual material that's relevant to the rationale that secretary adopted and that was i can see the second part of the error that the district court will hear here i'm puzzled to is it the case in ordinary administrative reviews that if a large volume of material comes to the decision maker including various things that are clearly relevant to the project that the decision maker has can the decision maker say i'm not going to consider this stuff because my reason is this and therefore the only administrative records are the things that bear on what i say are my reasons rather than the entirety of the record that came to the decision maker for the decision that  there are some cases that i'd like to discuss on this point that the agency decision makers rationale shapes the scope of the administrative record if the agency didn't exist decision based on for example litigation risk rather than based on some other believable is that it basically boils down to a one page memo from the attorney general that the secretary relied on in saying that a program that applies to four point three million immigrants is the same as eight hundred thousand that's been the place for the dhaka recipients how believable is that that that constitutes the entire record where she said ok i'm afraid that the fifth circuit decision applies to as well i'm going to terminate the program we have believable is that some would make that kind of decision just on that basis again your honor so if that's the rationale of the litigation risk the rationale no one saying that there wasn't subsidiary analysis of the litigation houses determination that a program is illegal right if you make a decision that this is unlawful that's presumably based on legal materials but if you're assessing risk do you know of any business that decides to stop doing something because of a litigation risk without reference to how important the considerations are for doing what that business is doing risk is a risk is always a risk benefit analysis is that's fair point cost of the boards the program then that's potentially a ground to set aside this is an on the merits well yes yes exactly i don't first of all let me disavow i'm not saying anything about the merits i don't know anything about the merits the question is how evaluate whether the decision is arbitrary and capricious on exactly the argument that you just outlined without knowing what information was before the decision maker directly or indirectly about the costs and benefits of the program that she is being considering terminating on the basis of risk the way you can is because the acting secretary's letter explains the thing she considered she didn't talk about the cost and benefits of the program so if you think that that is something she had to consider it would be set aside you don't need to look at a record of expanded record figure out what she did consider i'm not sure about that why would if the information is potentially coming in about the costs and benefits of the program that are entirely supportive of the view that there's no particular point in doing this anyway or we have serious reservations about whether this is a good policy idea or if there's litigation risk then that looks like a very different decision from the standpoint of arbitrary and capricious than one that says i'm terminating this on litigation risk  notwithstanding that this is an extraordinarily valuable program based on all the information coming to me that's fair enough your honor and if the trade wanted to defend the her decision on a broader rationale like that she could have she chose not to but you see this is th whole problem and maybe maybe we want to get to whatever cases you're relying on because i'm not an administrative law expert by any stretch but it hasn't not seem to me to be the case that where administrative agency engages in hearings compiles all kinds of information has thousands and hundreds of thousands of pages of record that when the administrator of say the e p a suddenly makes a decision that says well actually i'm not considering any of that record except this one little slice that the record the comes to the court for appeal is based on the cherry picked documents that support that particular little slice of the decision let me see two things about that are so the first thing in probably the most important is that this is in the cherry picking situation because unlike in sort of hype that look you're talking about where you've got a factual decision and there's a risk that the agency might put in the good evidence but omit the bad things there's not any evidence here this is a question about whether there was a likelihood that this policy would be invalidated by the courts there's nothing to hide but this puzzles me too i mean normally litigation risk but i think a litigation risk in the ordinary private context is not just we're going to lose this case but that leads to some terrible consequence if the litigation risk is the risk that the program will be terminated and so you decide to terminate the program i'm not sure i understand what is the risk you're it's like saying well if i go this course there's a forty percent a totally discretionary policy and the decision is i don't want to do that anymore that's not about litigation risk no what i was going to say your honor is that in the context of a discretionary non foresman policy we don't think it we think it's perfectly rational to say this aka before the fifth circuit affirmed that and before four justice of the supreme court affirmed that it is perfectly right this is the merits underlying merit issue but it was perfectly rational for the acting secretary determined in light of those judicial decisions that just like expanded daca would be struck down but the more fundamental provision risk of going to work was pushed and that is one of the bases that the attorney general identified it as one page memo was his conclusion that the fifth circuit found the program to be unconstitutional that we know that's not accurate and then when the the secretary issued her whether she rely just on the a p a doesn't that create some additional skepticism on our part what's the what's the litigation risk analysis here if it's that that was just incorrect and in session the sessions but i don't believe that's correct your honor that he attributed the unconstitutionality holding specifically to the fifth circuit but more importantly  even his own memo says that the conclusion is that it would likely be invalidated by the courts and the that is what she quoted it in her memo is that his conclusion that it would likely be invalidated and she said in light of those decisions and his opinion that she'd go away just by the a p a decision part of the decision by the fifth circuit right so she said in light of their decisions and his opinion she thought it should be that she specifically say that said the a p a pro i don't believe that she said that in the center in the operative sentence of her body but again i think the fundamental point you might agree or disagree with the underlying decision and you might think it was arbitra state of the decision maker the d c circuit in other courts upheld again and again that means that deliberate material is not part of the record but you know on the basis of this record we really kind of don't even know what documents we're talking we don't know whether they're free whether great the documents we're talking about are not as i understand the district court's order there is no request for the content of what any adviser to the secretary said you should do this you shouldn't do this i'm worried about it i'm not worried about it the request is for the documents that those people considered and those documents could be deliberative documents i suppose as to which some kind of privilege attaches or that mightn't be appropriately excluded were they might be factual materials that you would expect to go into the decisions of the people who are deliberating so that's what i'm concerned about in the first in the first instance why is that not part of the administration of record in the sense of things that are directly or indirectly considered given that indirectly i can imagine an understanding of indirectly that doesn't include the documents that informed the person who gave advice to point out that you are the first is i think exactly broader than what you're saying because what the order is is both anything that was before the acting secretary or anything that was before a first level suit subordinate who rise or so that would clearly cover the recommendations in so far as the recommendations were before the acting secretary the second point is yes it's possible that there are certain things that we've described as deliberative that someone even potentially court might disagree about but that's always the case when you're drawing a line just take for example the test you articulated the outset directly or indirectly considered in the first instance an agency always has to draw the line of what were the materials that were directly or indirectly considered and what weren't no one creates a privilege log or any type of log for the documents that are just on the other side of the line the agency has to make that determination and there's a presumption of regularity that attaches to that and unless they have compelling evidence that we drew the line incorrectly that's the end of the matter and that's the same thing here we're talking about deliberative material and they have no  argument that we're prepared to produce factual materials but not deliberative ones that fall within the category of materials considered by the secretary or the  first level advisors it's as i said we have two points our first point is that deliberative materials are categorically out our second point is that the only factual materials that should be in our factual materials that are relevant understand that that's not a second i mean let's get back to that first one was that argument presented to the court that if we lose on the first ground then this second ground only applies to deliberative materials and we would like you to you judge car to narrow your order to x clued deliberative materials we repeatedly argued every time that deliberate material should not be in the history of record i think if you look at every file we ever made this case below it was always that our lead submission was that deliberate of material should be out of the record but would you be satisfied with an order that modified to the district court's order to exclude materials that are deliberative so or is it your position that everything is deliberative so that would be useless exercise of two things one is that you would have to also say that we don't have to create a privilege long for the libertarians because that's the significant burden here is that they're saying that we have to go through and let me get it done through this your briefs are filled with rhetoric about millions of documents and thousands of people and i'm not sure i understand how that could be in light of the actual order entered by the district court which refers to first level advisers how many people are first level advisers on a decision like this to the secretary of homeland security the numbers are for first level advisors were the numbers clearly smaller order was when i got it but that's past we're we're in a different world now right is why we're not your honor it's also covered by their for discovery request their request for production is for every document in the agencies that concerns dhaka and in order to collect and has the district court entered in order approving that request now he did all right so you're talking about mandamus ing the district judge right so we are trying to focus on what did the district judge order that is clearly on equivocally beyond the power of the district court to do we're not reviewing what your adversaries might like to have and giving an advance order to the district court as to how to decide discovery quest that the district court has not yet addressed with all due respect your honor we did argue in the dischord has held that discovery can commence our point is that discovery is categorically and wholly improper  a case such as this and it's also categorically and wholly improper even on their equal protection we why isn't that a yes sure fine but why isn't there another remedy which is asking the district court for a protective order that limits that discovery in some of the ways that we've been talking about rather than coming to us to say that the district court has somehow completely gone beyond anything that's reasonable it because their requests are where have millions of documents when you haven't asked for that to be narrowed by the district court because our basis for main deems is not the burden are based for the mandamus is that it is legally improper to do this even if it was a single piece paper would be improper now we pointed out the fact that it's not a single piece of paper they're asking for millions of documents but our basic submission is that this discovery is improper and i would note that these are the exact same sort of arguments that california plane just made both in the ninth circuit and to the supreme court and five justices of the supreme court thought that we were likely to prevail and was granted a stay on both the administrative record and the discovery in that case your honor and it's because it is black letter administrative law the stake in that there or that the magistrate judge's order with respect to discovery is actually limited to a couple of the categories of claims that they've made in other words i did not understand the magistrate judge has ordered even to say that their requests for discovery into everything that is relevant to the doctor program was approved and my mistake and i don't think he is ruled yet on and i apologize it's not side our brains it's sierra club versus costal c o s t l e the site is six fifty seven f second to ninety eight there's it's a d c circuit case where  in an agency proceeding the press there was white house contacts between the white house and the agency and there was no log and no record of those contacts and what the d c circuit held said the agency didn't rely on those contacts as the basis for their decision and therefore the own have to include those contacts within the record that's making exactly the point where making its exactly the point that judge wofford made is that's also related to white house documents which are not part of this order but you're saying their rationale was broader the rationale than turn on the specificity of the white house it was that when it's not that's not the basis of the decision there's no reason to include it within this trade record because if there are it's when that's that's that's your best case i take it that's the one we really need to look at i think that's the best on the on the second point on this point that factual material that's irrelevant to the decision may not be considered but your fur our primary point which is the bulk of what's going on that's a case that was not in your brief and therefore presumably was not cited to the lower court either i think that's probably right roger but again but that's a it's a case that it's worth what it's worth it for what to do at the reason the circuit knows of mr better than i do the focus has always been on deliberative materials point because there is very little factual material in it for example california has pointed out repeatedly that on our privilege law there's like washington post articles there is just given the nature of this decision that it was based on litigation which the just very little factual material that is relevant and social just it shouldn't be a surprise that there's not a lot of factual tiriel period and that's why we've never focused on that the real but the real key and thing i would like to emphasize most is their point that deliberat materials are part of the record or have to be subject to privilege log would be a revolution in administrative law under their theory every time an agency educator as a bench member he would have to have a privilege for that and that just doesn't make any sense and that's just not morning may praise the court joshua rosenthal for the doll respondents the october nineteenth orders that are at issue before the court today represented reasonable and measurable responses in the face of the imminent and of a program that benefits more than three quarters of a million people and a clearly and facially an adequate administrative record to begin with some of the differences between our case and the supreme court case one important difference given that in court stay order is a reason is that in california judge also had a number of documents prepared to be released to the public immediately had there not been judicial intervention that's not at issue here we haven't even seen any documents we haven't seen  should we not wait and see what the supreme court has to say about that order i agree i think with you that the order is distinguishable in a variety of ways that you were before the supreme court from the one here and it may be that whatever the supreme court decides even if it decides adversely to your side will be not particularly relevant but given the arguments that are made here in the breath of those arguments and the breath of the arguments that the government has made to the supreme court it's also possible the supreme court decision would just put a spike in your entire argument that's entirely possible in light of the urgency of this matter th is urgent for the supreme court to end it so urgent that they set a briefing schedule that was you know puts the rocket back up to sharon right that's certainly true your honor we assume they're going to act expeditiously we certainly hope so but in light of the fact that there are no docket documents immediately set to be revealed there's there are significant further proceedings on discovery that are left to be done on discovery and on the administrative record before the district court those are all matters that judge care of us indulge orenstein can take into account in the first instance when when dealing with the actual issues in in concrete particularly and not in the abstract as they're presented to the court today moving on to the reasons why the administrative record is incomplete and why it was not a clear abuse of discretion for judge karen has to find so i point out one category of facts that's that's quite important it's so important and then acting secretary duke in her memorandum described it as significant in footnote one and that's this historical question of how much discretion was actually at play in the operation of the dhaka program that's a factual question it's a factual question in possession of somebody within d h s s and presumably since it showed up in this memorandum it was presented to secretary duke but because the standard that the government applied in defining the administrative record a standard of only those materials those documents that were non privileged and personally considered by the acting secretary herself any of those documents that may have been communicated through a subordinate are simply outside i this goes to the merits in a sense but i'm puzzled about if the basis for this entire program the legal basis for the program is essentially  discretion the bet is what gives the executive the power to not enforce certain legal rules according to their strict letter which we all know happens every day in the justice department does that mean that every time the justice department changes its priorities were decides that they're no longer going to for example not enforce federal marijuana laws in the same way in states that have legalized marijuana as in other states and the decision is made to reverse that memorandum does that is that an administrative decision that is subject to review under the a and that a court will compile a record or ask for a record and then decide whether this was appropriate or not well i don't think that kind of broad rule on process that tauriel discretion in the abstract  should this case we're talking about a very specific decision that rather than enabling or exercising prosecutorial discretion cut off prosecutorial discretion went from a program where there was an ability well nights it might be exercising prosecutorial discretion on a case by case basis but it says we're no longer going to do it this way we used to do it this way now we're going to do it that way isn't that what this is all this is about well it's about more than whether we'll do it this way or that way it's about whether a certain set of people have any access to the exercise of prosecutorial discretion at all or as is reflected in the instructions of their of the duke memorandum their applications or their requests will be rejected not denied  an exercise of discretion but rejected based solely on when their their piece of paper happened to arrive in the mail their requests for access to a particular program that is part of prosecutorial discretion says nothing about whether the agency will actually start removal proceedings against anybody or if they do whether that person can make the same kind of appeal that people make to prosecutors and government lawyers all the time that you should probably drop this case for specific reasons so anything that says they're not going to do that there's nothing that necessarily means a future or enforcement with a gator from and that's a particular form of affirmative prosecutorial discretion that that carries with it the ability to apply for work authorization and if the other would you make a difference where the circuit theory can only a couple  s is a part of your position to that kind of a decision is not really prosecutorial discretion it's a policy decision it's a policy decision and it's a policy decision that affected a substantial number of people who relied on this program and so similarly the supreme court's guidance in the more paris versus mortgage bankers decision where regardless of whether notice in common is required regardless of the form of the program we do believe notice and comment was required but where there's a time i would appreciate more time which they can move them to address briefly the question of discovery we do believe that we're entitled to discovery on the equal protection claim the district court to decide whether we are entitled to discovery on that claim in particular but the question with leaves before this court and the equal protection claim is wholly separate from the administrative procedure act that's that's what i thought at one point during the papers what is it that you think the government is required to do now on what timetable under the district court's orders the government is required to respond in some way to the request for production whether that's moving for a protective order or whether that's partial production but to proceed in the ordinary course of litigation discovery if they have a problem with the word or the not that problem can be presented to the maddow if if the government asked for such a protective order that they would not be in contempt of any ruling that the worker training until we present to you this request for a protective order you would not be going to the district court saying that's outrageous that's already been decided that they're supposed to produce x y and z so they have to at least produce x y and z well on the administrative record there is a set of materials that they're obligated to produce but to the extent that this government on the discovery front but on the discovery front all that's been all that the district court is that on discovery is that discovery won't be s discovery goes forward in the ordinary course and they've they've exercised privileges in the one and a half depositions that we were able to take before the stay was entered they've they've entered objection with an admissions have gone forward and you've made documents requests is that the situation that's correct and we've received fifty six pages of documents so far we expect that there are more responsive documents under our requests for production but there's been no there the objections of damage but those objections have not been presented to the not a straight judge that's the appropriate next step in the sand in this circumstance and i want to go back to that they haven't been ruled on and i want to go back you said earlier the you think that you're entitle to discovery on the equal protection claims i don't mean to say that you've conceded that somehow you're not intel discover anything else but just on that issue you said you think you're entitled to discovery but that hasn't been ruled on but that issue is before this court how could that issue be properly before this court if it has not been ruled on below will the district court rule generally on the question of whether the government was entitled to a stay of discovery there were a few reasons why the government might be entitled to that stay the district court ruled on the procedural due process claim on the procedural due process claim the government wasn't entitled to a stay and so discovery would go forward so there wasn't a need to address equal protection now  there that particular procedural due process claim is no longer the case i'd point out that on monday we added a new subsequently occurring procedural due process violation that's not at issue before the court today but that the equal protection claim is still there and not underlying ruling that that hasn't been ruled on because the dis record authorizes discovery on a due process claim that is no there is no mood or is not in the case anymore that's correct so what is that discovery is going for on so there's the question of whether discovery whether the government is entitled to a stay of discovery what the rationale that the district court gave for why they were entitled to a state of discovery no longer applies but it's our position that this court can apply a different rationale but if it is again i keep wondering why we are here if at least on the discovery issue if the only reason that the district court gave for denying a stay is moot then why isn't the next step to go back to the district court in argue about whatever other reasons there might be for granting us a stay or denying a stay we'd be happy with an order simply sending it back to the district court for a resolution in the first instance however we expect that if the district court does granted scott brown the equal protection claim will be right here again and so maybe it won't and but there was an open question before the before the district court about whether discovery was appropriate on equal protection we we believe that it is under webster of the doe and other cases and so whether whether this court would prefer to send  district court for resolution in the first instance we think it might be more efficient to resolve it now you know lawyers always think and they're probably right in the case by case that it's more efficient for us to decide everything upfront then they don't have to go through the rest of the litigation but that would be a disaster for the administration of justice in general and we are all kinds of reasons don't do well never mind that was a comment i guess no need to put a question mark on it i'm sorry thank you papers to the supreme court in the ninth circuit case involve concerns about having to turn over particular documents and especially the relationship between the district court orders and white house documents so in the ninth circuit case the ninth circuit judge said that the scope of the administrative record needed to include certain white house documents and those white house documents also needed to be enumerated on a privilege log and the district court had occasion to examine some documents in camera that the government was claiming privilege as due and made specific rulings that particular documents were not privileged and needed to be released and so the government went to the ninth circuit and then the supreme court saying that they did not want to have  wrong well that's exactly right your honor that the justices who voted to grant the stay didn't explain on what basis they voted to grant it but the issues in the in the papers before the supreme court were very different and it's unlikely that the requirement to complete the administrative record which is the only thing at issue in this case was the basis for the stay because one component of the stay analysis is irreparable harm if you're asking us to essentially distinguish a supreme court decision that hasn't been made  yet to the extent that they did was enter interim relief then asked for expedited briefing and presumably then they're going to resolve this case and when they do then we'd be in a much better position to decide oh well if that's the ground it has nothing to do with this case or oh well if that's the ground it really trumps all of these efforts of whatever sort but the differences between th arguments being made to the supreme court and the supreme court's reaction to those arguments show that there are no legal and practical considerations that require this court to wait so for example to go back to the question of wrapper the harm the requirement to complete it in ministry of record can't on its own impose irreparable harm what imposes irreparable harm is the requirement to turn over particular documents that are certainly privileged so under the standard that the supreme court would have been considering it's very unlikely that the basis for the stay request w have been the minister but i understand and that is not only about privilege their argument is that the specific order to complete the administrative record and if in fact it's not that right it's really about the privilege log but that as i take it is based on what the judge apparently believes is what would otherwise be presented as the administrative record and therefore privilege is the only thing that  stop the production of certain documents as part of the administrative record and therefore there needs to be a privilege log right so the district court is not just saying you have to give us a complete record their position is we did  district court is saying you have to give a certain universe of material because that's what i deem to be the complete administrative record that's right that universe included white house documents that they don't so why wouldn't it be why wouldn't it be irreparable harm for the government to have to disclose materials even if they are not technically privileged that they don't want to disclose that will now be in the public record and the only rationale for disclosing them is that they are part of the complete administrative record a couple of different points that your honor nobody has ordered them to disclose any particular records that that's a that's how premature we are in this case all the district court has said that based on their representations to the about the legal standard they used in compiling the minister to record the district court knows that record not to contain documents that should be in there and the district court has said that this is what the legal standard is privileged necessarily but are there is there not a lot of dispute about what the complete administrative record does or doesn't consist of there is a dispute in that although as your honor noted in district court petitioners acknowledged what the appropriate standard is they have resisted producing documents that comply with that standard because they but they but they interpret the standard differently and they're asking us to endorse their description of the minister their definition or their interpretation of that definition well a large part of why they object to that standard just appears to be based on either a misconception or a factual error they keep on insisting that this is all about deliberative documents that this is purely an attempt to probe into the decision making mental processes decision makers that we want to deliberate have documents  about deliberative material in the first instance they haven't even asserted deliberative process proceed at privilege what this is about is are there documents for example concerning costs and benefits and burdens that the material here's all that she considered everything else she ruled out as irrelevant to the decision making and i guess what is puzzling me i was asking this new plan well you know ken wouldn't that if that happened to be some evidence of arbitrariness and capriciousness if there was factual information that maybe should have been considered on the other hand i ask you isn't that questioning what her actual decision making process was you're basically saying no she didn't do it based on this litigation risk analysis she did after actually taking into account some unspecified other stuff well i'd like to get to the question of the legal standard that they produced why that's incorrect and why that's problematic but to take your honour's question about her decision making process her memo references considerations that are just not fleshed out in the ministry of record so the attorney general and  secretary do both referred to certain costs and burdens and ministered of complexities cited as part of their litigation risk analysis as your honor noted there is some component of costs and burdens and complexities that it's going to be that's going to be factual in nature and so at this stage nobody has suggested to the district court or to the government that they need to turn over opinions or analyses we're not even at the stage where we are right now is that we know that the that the sessions letter says that an immediate wind down was required because of costs and burdens that were going to be imposed on us if they did otherwise secretary do agreed with that and she added on that there were in ministry of complexities that needed to be t there is nothing in the administrative record that was presented justifies or even references what those costs and burdens would be that's exactly right your honor we don't know what they are but they must have some factual component so without without going into anything deliberative we know this record is a complete and that was definitely part of what the district court considered but my friend on the other side also noted that deliberative process materials are part of the record but was a court that had expressed skepticism about a similar program the decision to act preemptively and this program altogether immediately right now sessions and duke both say that the decision to act in that way had to do with certain costs and burdens or complexities that would happen if they waited for a court to issue a ruling now what would those be it's facially implausible because ordinarily when courts order a program to be altered in some way they would give the government a reasonable time to react and so it's particularly important that a reviewing court understand what these costs and burdens are but but the district court also  quite appropriately expressed a great deal of skepticism about the legal standard that petitioners said that they used because it cannot be correct and it in fact would be harmful to accept a standard like this not just under the specific legal standard i would love to do that your honor thank you that the legal standard that petitioner is used seems to exclude materials that they regarded as unhelpful to their position in a letter to the court that we reference in our opposition papers they describe having excluded something that the acting secretary received that was relevant and bore on her decision to terminate dr because she chose not to consider it they've acknowledged that they didn't they didn't provide records of any information that was summarized for the acting secretary for her subordinates that would include factual information and their descriptions of the documents that they have not produced establish that such information almost certainly exists because they've talked about producing all the materials were before her but not for example the documents related to the termination of that were considered by lower ranking personnel including her direct subordinate so that might my friends say if a court has concerns about incorrect legal standard being used then a court can order completion of the administrative record and that's exactly right that is well established law it follows both the requirements that the a p a itself sets for administrative review that numerous  limited to the white house documents nor wasn't limited to having to produce documents our primary point is that we should not have to include deliberative material in mystery to record nor should we do a privileged lot for that and that is a significant burden and that is  to the government to force us to go through the tens of thousands of documents of high ranking government officials and create a privileged blog armani the story in the supreme court is pending was pending our mandamus petition and cert petition which will be fully court is there and is and will be fully briefed as of the end of this week will the response brief came in yesterday or reply before the and probably by tomorrow and then will be fully briefed and for the court to act so we do think it would be advisable for the this court to wait to see what supreme court done that that outright or to grant archer petition while it's just making that decision we already have a stay in place the third point i'd like to make is on their factual or and they've pointed to two things today that you said cost and benefits and they pointed out like the reason to have an expansion of the ministry to record to see whether there was stuff that we could have put in to defend decision our point is that that the points that they're put emphasizing are simply not relevant legally under the a p a but if we're wrong about that we'll lose there's just no need to have an expansion in this trade record the fourth point i like to make is a couple of questions were asked about whether the rationale given was believable whether you could really think that this was based on litigation that's essentially an argument that the  the standard the bad faith standard is they don't come close to that standard and the last point i'd like to make is on discovery the magistrate judge and the district judge have repeatedly rejected our argument that there should be no discovery at all including on their equal protection claim where our position is under the supreme court's decisions in armstrong and a d c there should be no discovery there's simply nothing left to do in the district court on that threshold fundamental point we could quibble about how many documents we're going after produce but our legal argument that there should be no discovery all has been ruled on and it's been rejected and that's why we're seeking a name was on the discovery piece too and i will note again that the supreme court stay the discovery in california thank you that you will reserve the decision