what what order it is that you're asking us to review because if you can offer all the separate notice of appeal from the october orders so are we looking d at just the april d order or the end for order as clarified october or what is  april order is requiring you to do so that you would not otherwise be doing under your own also is sure your honor i mean i think you know i directed us and even in the able order to adopt this performance standards and to do all these other things and i think one very significant feature here your honor is that we're under a court order injunction and whenever you're under that you get it's something that requires you to work around a flock to do a bunch of affirmative compliance work it's more limited it's a very rough place to be and are you know if we make clear that workers resting on significant errors so whatever they stand is of what is requiring from us we  percent capacity versus thirty percent capacity is going to be very different facilities with community transmission versus non facility with confirmed cases versus none facility in your area where the region lacked p t e as you know is contemplated in some cases and the c folks some even some some have smaller be the guy who's itself is an issue here is recognizing there will be shortages potentially in some places you might have community transmission zones bases and not another is a good informant some things maybe with respect t and the problem here is that fundamental failure to be the best showing the plainest claim to attack to national policy get death or plain that they cannot rely on these individual ways anecdotes but that's what they do and that's what they need to both our policy in dissent it was squarely rejected by the supreme court it's not just a general issue when you have these these issues that really depend on what's going on in different places like you can't just look and see like hope oh this person doesn't have a the key point and i think what i'd emphasize ron also is that again if you are the pandemic response requirements that's the key document the district were just barely evaluated that it mostly but it has seven pages going for that cherry picked anecdotes picked random anecdotes your honor the court it would still be significant classification issues there are different legal standards across circuits on a number of the merits means here for one thing and another thing your honor you can't really look at this policy ended without looking at the gives and say the policy is wrong it's just like in wal mart where you have a policy that says no discrimination and discretion you have to go deeper than that to fall policy and so he didn't get that here so that knocks out a class or asian in similar problems once this marriage issue is properly understood i says response to their oh there's no reasonable way to say that mice has been deliberately different that it's been fugitive it's violated the the rehabilitation act we need his adopted and talking about whether on this record the district court of used its discretion back in april but an awful lot has happened since then and so i'll try to address both timeframes but i agree with my friend on the other side that the only scope of this appeal right now think this case is both broader and shallower than romana and i think that made all the difference so the key here and the main response i have to the argument of my friend on the other side is that what the court was saying i am going to look at what ice itself is holding out as system wide policy with respect to custody determinations in the docket reviewed by and said with respect to its standards in the april th b r r and i am finding that those system wide policies that ice itself has are inadequate but i'm going to prescribe adjustments that build on what i has had not time to displace them to just move them inside constitutional and that's much less significant than the kind of relief we're line which actually was directing the release of individuals and was prescribing specific interventions not just for those at high risk for everybody in the facilities i think there is that isn't in many ways that the merits of the constitutional claim are not constrained by what is actually happening on on the ground and just to be clear this argument is not a the bottom of what's extrapolate from a series of anecdotes to find invalid policy it's that our our experts who are experts in health care systems in i'm detention settings worked at these policies and pointed out why they are invalid and a system wide level because there are things that are going to affect everybody and that the fact that i see as no policy for out to prevent infection of high risk people in particular or even identifying who they are needs how you actually demanding compliance with that policy but i can't just take this at face value and given the evidence that we submitted of after the p r was implemented which is the st the three hundred and twenty pages of the supplemental was that even the t r r still fell short along the four dimensions that the court was focused on so those were identifying people with risk factors providing for special precautions to keep them safe prioritizing them for  think that is what size us together which is ensuring compliance with even what the p r are provided with what the district court found at the r thirty three was that isis apparent failure to enforce compliance with all of these policy documents meant both the evidence from on the ground which included saddam statements from people who have a system wide view advocates who receive calls from detention facilities and hear what is happening on the ground and so in the past i think the district court could look at the combination of bad history the contemporaneous evidence and the facts that ice had moved so slowly in the st couple of months of the pandemic to say exactly what the district court did which is this is not enough and not quickly enough so i'm going to impose it's very limited injunction for the time be and and if circumstances change please come back to me that just report expressed invited the parties to return with a motion injunction as needed and that that option remains open to the government which is why i think that the disconnect here between the records we're talking about and everything that has happened in the seven and a half months since is so off i mean i addressed that he both had the r r in in its discussion and said that this you know that it both does not solve all of the problems that have existed and to the extent it does improve things ice has not given of evidence was assembled in a short period of time i think goes to show that and gave the district court what it needed to reach the findings that it did but i i see that as just a subset of the who could you file the preliminary injunction request to depict to the island detention center so i suppose that could have happened under the auspices of the suit i think that would have been a rather round that that did not become mandatory until the injunction issued just and again this was not an injunction directing release there was an injunction directing that i simply do what i said self offered up as a path forward which was to give significant weight to risk factors in custody determination although to be honest i ask with respect to the doctor review in particular that the october order tightened up what ice had to do under that and impose some guidelines and what is your understanding of what has that happened already or is there still some ongoing process that the injunction requires to take place in the future already has happened in part of their if it has not happened consistent with the terms of the october orders or just as one example the of the october order requires us to do determinations to occur within a week we're aware as of the latest information from ice of about seven hundred people who had been detained for at least two weeks up to november th who had not received any strategic terminations including about just under seven hundred who were not  making available he answered open hand sanitizer and and the like but there was nothing specific to prioritize and those who were at greatest risk and that was what dr venter is focused on in particular in his evaluation on the other hand i don't really understand  conducting its law enforcement or other inforce monette mechanism that wants to have extensive completely over site of a core part of its operations for months or years it's not an excuse to bid for the district court have ordered even broader or more problematic relief the ice should not be under it is massively erroneous clearly erroneous injunction and that's the key problem here and with respect to some of the errors