thank you your honor and may please the court gerry since dec appearing on behalf of the united states through the t p s program congress created and expressed the temporary form of relief for aliens from countries that were experiencing or that ar temporary and extraordinary conditions related to a particular event as part of the program congress expressly barred judicial review of any determination with respect to a t p s designation extension or determination decision here however plaintiffs wish to attempt to characterize their claims they are fundamentally challenging the secretary of homeland security's decision to terminate t p s for he and accordingly  that it in your view it covers both kinds of claims whether both come through the a p a and the same standard to apply and there's no need as i take it for an explicit reference to i ask you a question about the the d legal protection claims in your this report didn't find a likelihood of success on the merits of that claim it just said that there were serious questions go case for example that just came out the supreme court found that similar allegations didn't even date a possible a claim for an equal protection violation so even if this court felt it was bound by the protection or by the serious question standard that it wouldn't administrative record here i had some confusion about what the government's position ultimately is on what the ministry of record is what the support and what was considered directly or indirectly i guess by the agency in rendering its determination because there is an original record that was quite short i guess one hundred and ninety nine pages that was added on motion for supplementation for the complete record you got up to over three hundred  but then there were materials that were produced in ramos and then additional materials obviously that were obtained here including deposition by means of court order but particularly with regard to a policy question now unlike when we're that are suitable and proper for consideration by the agency and rendering its decision and for the public scrutiny and holding it to the council for its decision that's remarkably included as well and i think you know especially when we're talking fundamentally these are you know pretty equal protection claim the side the dark and run of the mill a p a claims and you know the standard practice in a big case is to review the former u s c i s director from the last administration which the plaintiffs rely on there was also some e mail you know traffic and so forth that plaintiffs rely on at various points in the district or relied on as well as not part of the record and if you did you object to the introduction of the deposition testimony at the trial i would have to confirm i mean we certainly objected to at several points to the use of anything beyond the administrative record yes exactly in order and i'm committed discovery so we have checked it out you know early and several points there are some there are there are you have one minute left on your main argument but would go a little bit longer but you know in in these other cases including at the supreme court level you know that the courts do look at what you're suggesting are statements outside the administrative record statements that appear in the public and hear the relying on specific comments made by the president for example you know i think those are addressed in the in the docket case and where you have an independent decision maker which we have here the secretary of homeland security which is the case there too that it is not proper to can impute animist to her even if you accept the plaintiff's characterization of those comments and i think here's what i think what what if there is evidence of substantial influence from the white house well you know again i think when the record you know viewed in there is a lot about her internal thought process in their view the protectively you see that although there may have been influence from the white house the reason the white house was giving for  wanting to terminate t p s was based on you know the absence of conditions in the country over government in the in the department of commerce over the fences didn't the supreme court say specifically that influence from the white house is not out of the ordinary and it by itself is not a justification for looking beyond administrative records not showing the best that's right your honor i mean of course in a situation like this where the statute requires consultation on a foreign policy matter preferred says secret says explicitly like it is normal for a new with ministrations to come in with ideas about what they want to accomplish and it is normal for agency officials to consult with the white house and none of that is out of the ordinary we're justified expanding or going beyond the ministry of record and it's only when the courts that it became apparent that the justification the agency gave was was a false justification and couldn't possibly explain the agency action that the court said it was justified so here just this idea that it was this is was the influenced by the white house has already told us that that's not a justification for expanding the ministry to record white house in and of itself is as bad like you say you know the ministration comes in a consent policy but what happens if as a district court found here that that influence is improper influence in the sense that it is big trading a decision that should be based on objective country conditions but instead is being dictated by political  a political agenda that's so doesn't it depend on what the influence is well you know the court for example pointed to the tamino case i think that was a case where all of the evidence points in one direction and then you have in the only possible explanation is political influence here that's not what we have at all i think i think pain of say they're not challenging the facts that the secretary found or her conclusions he drew from those facts and there is an you know and robust records showing she really did consider all of the facts here in fact extended t p s for other countries as well so you know and when you look at the white house communications including for example the principals memo all the white house is saying is we think it's time because the conditions no longer exist objective if if and if it's if t p s is terminated because the administration wants to push america st agenda is not consistent with the statute and the is there evidence about what anyone thought in america st agenda required as an end to no your honor i mean i think she does say at one point in the record after after deciding that it's consistent with with an american  approach but i mean of course america st i think reasonably interpret what the word is that bill has sorry at one point he does say i'm not sure what what the right answer is for america st perspective it could be to terminate for aid it could be to extend for india i'm not sure but  again it you know i think you know i see t b s the program that focuses on the interests of aliens from abroad in america st and so the fact that she concluded that conditions no longer warranted it and then that conclusion was consistent with the pol please the court my opponent referred to this as a run of the mill administrative law case and it's it's not a rival case at all this is an unusual case in which the plaintiffs proved and the district court found that the acting secretary of da just didn't follow the mandatory procedures for terminating a t p s designation and instead of revealing the ordinary in terms of the the the the conclusions reached but i think his court cases the mcnairy case and the reno case and several lower court of appeals decisions interpretating those cases where you have statutes with very similar language where the congress had barred review of a b which says that there is going to be an administrative procedure for the benefits to individuals so congress also is setting up and administrative review system for individual applicants but then unlike mcnairy where they just limited the general ban on judicial review to the individual applicants here congress has decide which then says well in addition to having an administrative process for individual applicants we're going to have another bar and judicial review for all determinations and i think you know that that covers at least to some extent you know programmatic determinations unlike mcnairy where there from revealing the agency actually the language is practically identical so the court was in metairie of the court of troops during that language and saying we what you can't but can't be reviewed is the determination but the practices and procedures in making a determination are subject to review and that's very important because congress here has specified a procedure that the secretary has to undertake before you have a designation in place and before that designation can be terminated and the secretary has to review the conditions in the foreign state and then make a determination and so we did not challenge the determination itself we didn't for an american challenge the i think you can't we wouldn't we have not taught review and we probably could not take review of the agencies of the affleck their application of the law to the facts or their factual findings what we had said instead was that this was a preordained answer to the prior question if the process was followed to proceed just more follow the agency the secretary proceeded in good faith and decided to terminate t p s for haiti you would not be able to challenge th decision that that's correct yes that's correct so it's not the not that's not but just to go back to your explanation of the you're not challenging the idea that the secretary is determination was wrong that she was wrong on the facts i mean the way you would do that wouldn't that be triggering an a p action that says you know the secretary looked only at the facts but the secretary snored other facts in the record and therefore didn't engage in recent decision was heavily for showing at the beginning that that this was a preordained that appeared a result and that the process wasn't conducted in good faith sufficiently but i'm concerned about this because it's not every day that we go beyond the record as as far as happened here and that you allowed depositions of decision makers and past decision makers that you have trials on these issues based on you know just an allegation of pretext of what to that clearly is in the records that the district court was entitled to look at and that the government hasn't objected to to just pretext so there were there there was there were materials that were released through for you know some of that was information about requests as you know to about the criminal records of attached to our amended complaint so that's in there then there was a lot of material that was in the administrative record itself and supplemented administrative records or the original one hundred pages or two hundred consider without objection some of the so i want to just mention that there are just a court made a finding under overton park in its decision and there's a long finding about saying that the plaintiff had made the overturn part showing a strong showing of bad faith in improper behavior and i think it's and evident it was evidence that the that there was a manipulate there was pressure there was manipulation of the review process in order to reach a preordained also answer which is in department of commerce the supreme court says it's not a shilling with bad faith and it's not of the ordinary when you're a new official comes in with a goal and they want to build a record in support of the goal it's not of the ordinary when they're in touch with the white house about the formulation of policy so doesn't department of commerce say that these are not acceptable this is not an adequate showing  error you know at that stage when all you had was influence from the white house and it was only justified once it was clear that the justification that you can he was not asked for it right well it's i think we that seems to me to the court held because what the district court is trying to say there is this is an american appeal but what the district court said explicitly in its decision is that the reasons that were stated in the federal register notice were not the real reasons for the decision was a lot of evidence and it's similar to the evidence that was on earth in the department of commerce a case that made the court think there was a mismatch between what really happened that's for the stated reason but so tell me if i'm mistaken but isn't the evidence that the evidence that it was suggested is some evidence there was evidence that there was evidence about things that happened but there's a lot of evidence in this case about a lot of process based evidence and i guess i want to mention one more one thing since  you know the government was focusing specifically on the testimony of leon rodriguez the court to rely on and that was evidence principally of what one of our we think a procedural claim is a pretty is a claim that the agency changed its practices with respect to the scope of its review without a justification or notice to suddenly change practice and so there was evidence about what the past practices were and that is what mr rodriguez is a form it's a requirement to explain your reasons for changing than agencies of occasions when it's reasons for changing its position it's just the obligation agencies have to engage in reasoned decision making whenever they adopt a position as fox the supreme court says you don't need to do something different when you change your position than we did initially when you adopted the st positions of the statute doesn't make any distinction between the initial action and the change so i guess my question is this so do you think that when the prior administration designated t d they had to articulate what their interpretation of the t p s statute w particular country for t p s people in the country holding a protected status have substantial reliance interests and so under the reasoned explanation requirement if an agency is going to change its practices policy right my understanding is that agent agencies have to they have to i'm not sure where they would do it but they need to change a practice they need to demonstrate awareness that they're doing so this was there was ample evidence in the in the record here to support the district court's finding that we had raised serious questions on both procedural a p a claims and on the equal protection claim including evidence that secretary did decided to terminate t t s for the sake of agenda here and to the america st platform and that she and that the official change document that were waited for extension because the extension was not because the documents that doctors are waiting for expansion that was not the conclusion that they were looking for and that you know there was manipulation from below and pressure from above that resulted in a pretextual and preordained vision and the district court findings were supported by numerous paxil findings none of which are challenged as clearly around us by the government and so there is and also there is there's a great deal of evidence to support the equal protection claim there was all of the other substantial evidence to support each of the cation and as we said in numerous cases i'm planning to visit the site any case that is recognized and a p a claim like there's you know that if you're challenging a procedure just you know that's linked to the final determination that it's part and i'm not sure here what what would be argued could based on what we're calling process it's typically that the agency failed to consider certain factors or didn't abide by certain procedure and the remedy usually is well you didn't do it the right way and so we're going to vacate the agency's decision and reman you could bring any a p challenge you can think of about you know how the agency arrived at the decision and that's exactly what congress did want in fact you know this is a case in point where we're hearing this in litigation now three and a half years that's longer than most countries have even the bad to finding in the final decision is based on things like you know the court so specifically white house influence is probative of bad faith i mean that that that can't be right under department of commerce and you know under just general prince of the minist interests at play potentially at a time for extension or designation where you evaluate facts where you consider whether certain interests such as reliance interests that justice roberts talked about in the doc case have developed and you look for change the facts but what is a kind of there's no title but t p s statute beginning but what you set that mechanism in motion it seems to me that the statute  change that policy by something a different interpretation of the statute under every person's find it has to work it has to provide a rationale for the change the same way it provided a rationale for the adoption of the then but but certainly in the heated case there's been many extensions and there is no articulation of an interpretation those extension points or in the extension point of any other country any other  country aside of haiti such that you know now you can clearly say this is this is they're doing it in a way that's different than what they did a poor or that there is an interpretation you know to extent they had a different tradition they simply didn't say it previously taken in so there's no