many minutes two minutes done thanks all right thanks so much and dad please the court your honors given the number of issues in the case i have i confess i have struggled with the best place to start but i do think the best place is a foundational issue of the status of the defendant as government actors there's no question that  incarcerating people is within the exclusive prerogative of a government and entrepreneur cannot choose to go into the business of incarceration if you know we do so if it's given those powers delegated to it from a government and that's what has occurred here the message one of the clearest stitches in the supreme court's government after charice prudence is that a government cannot not that this would be an extension of your honor we agree with that i mean we certainly agree that this is an extension there for special factors analysis that the court has mandated whenever an extension of case squarely raises the separation of powers issues that drive the special factors analysis in that case you have a cross border shooting which leads to lead to an international incident of dispute between mexico and united states  and obviously that type of dispute is within the exclusive prerogative of the executive and so the separation of powers issues that arise the special factors about this were obviously acute in  it looks like congress has thought about and pretty carefully thought about the remedies he wants to give to prisoners and didn't visit one of them well dominant concern i don't think almost an could have come out the way it came out here the only different factor is that there is a private prison as opposed to a prison operated directly by the federal government but the private status of the company are available to the issue and given just simply that it damages were and maybe have a level still so for all those reasons the separation of powers issues in good standing just don't have the same great things turn into your one thousand and five claim could you tell me why in the complaint you've played enough so to speak to to suggest that the decisions were based or rooted in discriminatory animus as opposed to legitimate  considerations that folks running prisons have taken to consider into consideration well yeah starting with the premise that the p o p uses private facilities like motion in valley to house alien make art housed in prisons operated by the federal government they're housed in private residence the allegation is a complaint is that there was a mean note the minds between the private company that yahoo and the department of of the department of homeland security not not to not to make potential relief available to the daily and then make that the allegation in the complaint so is discrimination based on national origin nationality i read your honor i read that complaint as alleging discrimination based on aliens that us which is not quite distinct being its national origin but that's what i that's how i repeat the complaint that that the that is correct but in this case what is alleged it is that a marriage between a united states citizen and his back bird and an alien mr davis is being prohibited on grounds that what your position with respect to your u f o claim religious freedom restoration act did you did you pursue that in a district court or was this pursued in the district court you  well if if that's the case how can we can we deal with it well your honor i think in two ways number one so it is relevant to the court's analysis no one in that respect but i mean the court does have the power if there is a viable claim here and given the court's emphasis that pro se plaintiffs in civil rights cases should be given every opportunity to amend i do believe it is in the court's power to remain in the case to give the plaintiffs an opportunity to amend their complaint to assert that claim so i don't the fact that it wasn't specifically pleaded does not it's not a jurisdictional the back is that the district used its discretion in dismissing the federal defendants when it appears that even up to today they have not been properly served and correct me if i'm wrong about that if they if a complaint was dismissed and i would concede your honor that service was not properly effected in the district court that i agree with that they did not complete service  error that the district court committed was not in concluding that service had not been completed the error that the district court committee was in not even considering whether relief under rule for them should be granted in this particular case the plaintiff had no idea that they had not complied with rule four i completely forgot how could they not know that i mean the court had several interactions with and did  well not after not after the the in july of twenty eight they were instructed to serve the defendants and they did that and they filed they believe that they had done it correctly they filed a notice of compliance in the district court and shortly thereafter the g a o defendants appeared and did not challenge service the agency defense did not appear so so the only the only a couple of months later the agency defense did appear sent a letter to mr davis and ms that for explaining that that rule for i had not been complied with at that point that they did complete service at least as of the b l t administrator and probably david o'neill it has to claims in their official capacity where they feel short was in was in a sort of claims was in service with respect to individual capacity i do believe that they feel short of that respect but but the next question is do they deserve some time to try to correct that and and that was never that her ok go ahead your honor i just wanted to address some of the questions that were raised by the court when you were talking to mr fogg doll the st question regarding whether or not the g a o defendants are government actors i would just like to point the court to the case richardson versus mcknight and before that that just to discuss when we're talking about whether or not a party of the federal actor we're talking about the public function test set forth by this court in brown and the language of round top but explained that i don't have that right to it what how can the operation of a prison not be a public function how how is it that that's not like a square in the middle of a public function if you can get well public function tax talks about it being the exclusive traditionally the exclusive private of of the government and although prison dobby asli are operated by the government operation of prisons have not traditionally been the exclusive prerogative of the government only knights were and that's where we get to the cape of richardson big night can the supreme court where they talk about  that in and deciding whether or not guards were entitled to qualified immunity in that case the court explicitly stated that correctional function test never been exclusively public and that that page four or five of that case five hundred and twenty one us four or five buying it they might but i don't remember you know in that since time immemorial people saying hey look good on the street we might find a better you know i think bob is running a better person and that chick fil a here i mean it's not a private that is that the government function decision on purely private conspiracies that is that was that appropriate foundation for that decision well you're right it all depends on whether or not you would accept whether or losing as it were would the federal government to keep foreign nationals from marrying u s citizens and a very quick loser refashion around your honor and that's why we argue that these were insufficient allegation of conspiracy you know however there's also we  that you folks you folks meaning your client and of the federal defendants agreed to prevent people from marrying and you did it because on the federal side they didn't want to complicate their immigration removal proceedings and on your side you had a you had a monetary motive because the more people in your prison the more money you made and that it in a fundamental right you did it for these unconstitutional reasons and they were hurt by it now now that you know maybe i've i don't think i've ever read i think that if i get the nature of it what is it about three you know if there has to be immutable characteristics that undergird that class and also national origin national origin is in a class well in this case it's not because they have to they have to not only show that national origin they have to show that there's been historically pervasive discrimination against their their national origin which in this case they believe is jamaican and they haven't shown that in their complaint they that far yeah they would have to be historically pervasive discrimination really and that would have to be yes i believe so your honor that that's what the case pocket about that if that is to be a criminal class there have to be a history of what he did the fact that he was a jamaican had had no effect on whether or not he would be deported because in the serious nature of his crimes there for you know any any membership in any class it didn't motivate the action against them oh we're talking that might be a summary judgment argument right but how is that an argument at the pleading stage well he he your honor he peepli that himself and  complaint you know so that's why you rely on it i know you only have a very little time here your honor but i i just wanted to touch briefly on the the refrig claim to this business this court was correct that you know that claim wasn't raised below and you know we argue that it can't be raised on appeal pursuant to rd circuit lawsuits and seven hundred and nine s rd two hundred and forty and that night and you know we we would agree i hope we didn't just lose somebody let me just do a quick roll call mr fogg all yes your honor mr speck yes and mr owen yes ok judge greenberg telephone connections or the internet it was the connections imply a cause of action to hold individual government employees personally liable for money damages and it's important to recognize that that is exactly what it said if it's personal  with you that this was a new area and that special factors counsel against extending didn't fly billeted the why st looking at the service of process issue  why it was why wouldn't it be an abuse of discretion to hold people into this case who clearly were on notice knew what was going on they've been they've received information they needed to and the court could have given a break under four m what why should why should they not be held to account in other words why should we be doing this on a close reading of rule four and not on the merits except we accept for the purposes of this discussion that service was not perfected the question isn't whether that rule was followed to the letter but whether people were on notice and could properly be held to account because they knew what was going on and they appeal with st noticed and that motion was deny because we wanted the opportunity to investigate servants to investigate the allegations to investigate exhaust and that motion was denied and we've gone forward with the briefing but our our engaged in some level of gamesmanship we repeatedly tried to get this case to a level where their their claims can be at least vented on twelve emotions we did that with our motion to extend time which i recognize that opposing counsel believes that that amounts to an entry of appearance by one of us attorney's office was provided with a copy of or served with a copy of the complaint by rule twelve b three we had sixty days to respond that was the function of that motion we did not enter in apparent and then later once the case was dismissed we moved to reopen the case because we felt that there was some question of whether or not service had been accomplished or possibly not accomplished but again we wanted to investigate so even though there is a history of this case going on for a very long time and i don't feel like not just going on for very long time the federal government's position ha been put on the record right i mean there is you would it would you have said anything different in this case that hasn't been said on the merits if instead of certified mail or fed ex you've gotten this delivered to you by the united states postal service in a way actually i didn't mean character actually it could be different because one of the important omissions in this case is the  management manager i'm forgetting the name that they give him but they call him b o p s be ok administrator of my short term for their private management management branch manager that's not the director have not identified it's the latter your honor and actually what's so confusing about this is that the plaintiffs allege in their complaint at paragraph thirty five and sixty nine that they received a written correspondence from th they don't have his name and unfortunately the positions changed from time you know very frequently with the n b a o p who is running in the same thing goes for d h out we don't know what specific timeframe they're talking about because they're allegations start in two thousand and twelve ok and well i got shown that point can you can you say whether or not you're still holding that position that section one hundred and eighty five that not apply to federal question in your mind because if there are it has not ruled on that so it's a very straightforward position but even putting that aside your honor we don't believe that they stated the claim under nine hundred and eighty five  we realized there's a fine intersection between the leniency given to pro bono play plaintiff and the fact that the requirements that are pretty stringent for ninety five claims but the specificity we're looking for is who are the people you're talking about when did this happen what conversation are you talking about that's what we're looking for that lacking in this complaint even with regard to the group and obviously they have their own helpful but they keep going are you  privatization management branch according to online information about the bureau of prisons there is a privatization management branch that oversees the operation of contract pr that branch has an administrator and that is the individual that the plaintiffs were intending to sue i have not through my own investigation been able to uncover that individual name but it's clear that there is an office holder who is the administrator of that the o p s privatization management branch counsel reference materials that are not in the record when the plaintiffs when mr davis grieved the denial of his marriage request he appealed to the binondo of the grievance to the be ok and received a response from the p o v administrators office that he could not grieve this issue with the b l t you could only grieve it with his private with the institution and that correspondence come from the administrator's office but it does not mean that i realize i'm specific national origin you heard mr specter assertion that there would have to be a history of discrimination against jamaican particular and in fact a marriage i have i am aware of no authority for that assertion all right all right well counsel thank you again for making yourself available by phone today you know this is not the ideal way to handle this but i think we've had a fair opportunity to share the issues that we're that we're well briefed and will will take the matter under advice that will ask counsel on this conference call line