our nd case this morning is national immigrant justice center or says the united states department of just johnson please the court i'm jeff johnson and i represent the appellant national immigrant justice center four years exemption five shields from disclosure only those agency materials that would not be available by law to a party and with a geisha in with the agency everyone agrees units within the d o j are not acting as advocates they're acting as legal advisors so i think you're on there the eighty's legal staff not an advocate so i think that that may sort of ignore the sort of practical context is everything here the context here is that these units within d o j and and the lawyers that were called on to by the attorney general for advice in this review or not acting in an advocacy role wearing advocates hat even though they could be called upon to do that at a later point so i think that's not obvious your honor for instance the government has district in federal circuit court so the primary claim here is deliberative privilege correct there's deliberate privilege as well as rick work product in those things but again if that if the question your honor is are these lawyers necessarily able to  separate their work defending removal decisions in federal court including the ones that they'll be defending in those specific cases and i think it's relevant that the government itself insists that in many times what they're doing when they're talking situational in these cases is advancing specific litigation points for future litigation so for instance sort of on that front we have some appendix ninety nine dollars divine index says handwritten notes on a matter of are a semi colon references to communication with somewhat formal to think that because these lawyers spend all of their time furthering removal interests in their federal court occasion that they can so that all aside and simply act as neutral advocates when they are working with attorney general i also think unique to track structure of immigration review makes this particular problematic there's no reason that i can see from the government's brief your honor that in a lawyer in o i l couldn't like any good appellate lawyer look out over the world of be a decisions and say that was going to be difficult to defend on appeal it would be much easier if you treat general would take the decision overrule old immigrant from the precedent and then i could go and defend it more easily  this case and and from what i can tell there's nothing in the government's position that would suggest that those are not ex parte communications even though the chain was started by someone in a y l looking to get help to win a case that was about to be filed in federal court case specific topics from a host of lawyers in the pardon of justice such as i see so for instance if you look at the van in the season he's in this case i would say the majority of the documents are no longer an issue because they don't involve communications involving consequences of the rule that you're asking for the holding and i'm thinking about in terms of just to pick an agency a different agency take the f c c ok in the f c c world and you may know this from your practice i don't i don't know the f c c the commission itself meets with the division of enforcement in response to these so called wells submissions all the time in a well submission  submission trying to encourage the commission not to take a particular enforcement action it's all it is just a brief to the commission saying don't pursue enforcement action here sometimes of course the commission does oftentimes it will and it will that will proceed in front of an administrative law judge ok and then if you've lost if your client is lost you can appeal the d c circuit very very common pattern in that d c circuit litigation it's almost sure that division of enforcement lawyers those lawyers that may have been conferring you know in the early stages of this with the commission will be sitting at counsel table in the d c circuit so what i'm what i'm worried about here and unite and we come up with the same fact pattern in like an e p a world or an f t c world or something like that that principals often are receiving all kinds of advice on enforcement actions before the enforcement actions go forward and i don't know how under the holding that you're asking for here i mean i know you're saying it's kind of immigration specific well i mean in one regard it is been another great regard it's not in everything that here is you know it at this stage protected by deliberative process would seem it ought it all be opened up and all those other scenarios that i'm worried about understand  that it's not clear to me for example of the does have the same features we're talking about here in the litigation context for immigration so again to go back to that unique two track system where the immigrant can go to federal court from adverse be a decision immediately or reason the reason you're saying they're ex parte is because as you as you try to you know posture this those are the lawyers that will eventually be litigating right but it's going to tell you a gate they did all th right but they're also taking one day they're litigating or maybe six days a week they're litigating but one day a week they're advising the attorney general you know and that's not uncommon in government people are putting that one had on taking or they  have different responsibilities and so i just don't know how with if we think about e p a f t c f c c it cetera et cetera i don't know how you can make this immigration specific so that so that's why i guess i'm just not familiar with another agency situation in the government has not pointed to one in his briefs where you can have the sort of bypass process where again a lawyer from a y l could be looking out in an ad for an to be a decision and or someone removed and saying that's very difficult to defend under existing precedent i know that the attorney general mike interest that or the attorney i might come to him and say i saw this be a decision it's very difficult a defendant know you're going to lose in federal court if you go there why don't i certify it overrule that precedent and then and then we can go to federal court and you to the benefit of chevron when that case returns there i'm not familiar with another agency that has that sort of interesting structure that allows for a kind of cooperation between the attorney that there are ways to kavin this to nation specific decision and that in the event that you think that it speaks more broadly than that i guess the question then becomes well are these interested parties a just just because we've been doing it this way is it is it  ok and if if we actually do have an interest specific to a specific case then that seems to fall within the ordinary test for adverse party and interested party in those peak ations then they can take place and i want to say they can't talk they're just saying that just like the regular adversary process those discussions need to be disclosed so the other side can tell whether or not they should respond to something being told to  usually advising on a matter is someone who spends all of his or her time advocating against immigrants that matter in federal court and who may well end up doing it in that very same case and so i think in interpreting the scope of with and that just can't be right there's no principle that requires such a plaintiff agrees that the attorney general can seek advice from the office of legal counsel when he is reviewing an immigration case but there is no difference here between advice from the office of legal counsel on the one hand or attorneys from the office of immigration litigation oil or the solicitor general's office and the fact that those oil and l s d attorneys may be called upon to defend the attorney general's decision if their if their judicial review was sought in the court of appeals or the supreme court simply can't turn these into ex parte communities and i think it's important to keep in mind that when when these attorneys litigate in the federal courts they are representing the attorney general he is a party when an alien seeks traditional review of a decision the attorney general is named respondent he is a party and so you know the  your playing the same role essentially that the attorney general is there advising him when he is serving as adjudicator and they are representing him when he is a named party the respondent and and so and and it just can't be ex parte when when an attorney is talking to his own client in that respect there they are serving the same role and it's sort of a singular function that they are that they are always representing the attorney general they're not representing some outside interest separate and apart from the trial and i think that's important to keep in mind when plaintiff is suggesting there may be some appearance of bias or where interest it's always the attorney general's interests that they are advocating i mean well this is this is just sort of the dilemma inherent in the administrative state in which the laws vests and agency head with adjudicative and prosecutorial power and keeping those lines separate is crucial for  i mean i don't know if you can just in keeping with that observation mean are you i mean i know we're dealing with immigration a bunch of you know forty related immigration requests and what have you know the case comes to us is you know it's all packaged around immigration  us i'm not as familiar with some of the agencies who have their own litigating authority but you know from the justice department standpoint you know we represent a lot of agencies on a lot of agencies handle adjudications there are good cations at the administrative level whether it's you know a medicare case th that you know justice department attorneys may also you know provide advice along the way and so i think this has much more far reaching implications and i think it's also just important to keep in mind you know so that that occurs any time that an agency had it has of been adjudicated role to play because of when ever you know a party then challenges that decision that agency had becomes the name defendant in a case and so will be litigating but i think it's important to to keep in mind you know you refer to a prosecut that's not the the function that that oil or o s d or even the attorney general is playing prosecution of the removal cases is handled by the department of homeland security and it is the department of homeland security attorneys  serving as the prosecutorial function at the administrative level when this goes to the federal courts that is seeking judicial review of the administrative decision but that's just then sort of defending the decision it's not a it's not a prosecutorial function in the same sense that that attorneys from the department of homeland security are playing but on the same side of the v well you know there is no v in it at the administrative level right it's in the matter conceptually right right but then the it's but then remember it's that it's the attorney general who becomes the named responded he's on the other side of the v when it goes to federal court and that's the side that that th questioning their neutrality i think that same reasoning would disqualify the attorney general himself because he is you know serving as adjudicator and then he is he is the named party who is the respondent when the aliens see fix it by overruling precedents of that we can remove the alien after this isn't by b i a has been made i think that that raises very obvious concerns that strike at the heart of both due process and your honor is concerned about keeping the line separate if we if we are going to allow these proceedings that are supposed to education to take place before a decade of official rather than an article three court we need to make sure that the lines between those prosecuting the law those ensuring people are removed and those who truly applying the law are kept separate and i don't think that that happens in that circumstance to the extent that my colleague suggested my colleague also suggested that what really matters is sort of who is on the caption when i don't see any particular reason why proceedings before the b a couldn't be styled attorney general versus so and so after all v h s exercise executive power in the same sense that the general does prior to two thousand and three d o j itself so it seems to me a matter of titles and naming rather than reality to say that when someone is just because the general happens to not be listed installed in the matter of so and so that that's sort of enough when we're considering the consequences here i'd just like to sort of reiterate that these decisions have momentous impact on the lives not just of those whose cases are certified but on those whose cases are usually sort of swept up in the overruling that takes place in this case and if we allow the attorney general to do this with no notice with no disclosure of communications from those advising him then immigrants will have an opportunity to challenge potentially biased or potentially just sort of one sided slanted advice if you're going to receives in that process so if there are no for it it's like i got one question for you on that so that point i mean you've got your very articulate on that point in your briefing that that seems to me to be a procedural due process concern with the way with respect to the way the executive branch is functioning around this so so in other words it doesn't strike me as some i know how i know why you're trying to get and are for you i understand that just fine but what you're effectively saying is the world would be a whole lot better due process wise if we were able to cement or this particular non citizens able to submit a brief to inform the attorney general's decision making so for you it just seems misfit in other words i agree it is a misfit in so far as we're not asking to overrule any individual decisions or of a case and that these concerns some of them can be raised by the litigants as well as they were for instance  trevino i do think as a sort of constitutional avoidance matter when we're deciding the scope of the ex parte communications doctrine in this sort of strange realm of agency education where we're not quite sure who's doing what when that we should err on the side and avoids procedural due process concerns about having someone who has the special year of the suppose adjudicator being the one that gets to sort of feed information to him that the other side's notice and so i think that even though you're right that these transfers can also come up in the context of individual cases that they should shed light on the scope of the 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