it for this purpose or that purpose or in this situation but it doesn't say anything about the regulations of the secretary of state or what about the roberts yes we the living quarter allowance the statute and the regulations are not money mandating but that was not the holding in the  allowance and the danger pay or those yes yes that is to say there must be implementing regulations for a living quarter of our kids but there need not be any  implementation regulations for the enterprise and the the secretary of state centers in her the s s r the agency make implement supplementary regulations but that the agency has the government would say in its discretion if there is times decided to award danger pay to certain individuals how does the fact that they have awarded certain individuals pain to pay inform the the issue before us which is whether or not it's mandatory or discretionary because your honor the agency has not set forth any regulations or rules that talk about  people are qualified this can't be the law firm that supervisors just willy nilly decide you don't get it you don't even though you are equally qualified that there is a policy  congress decided that there was something that was the big danger pay for such people and company and agency has just willy nilly proceeded to paper as a matter of fact the government now  but all throughout the record there are days that the ration sworn declaration that was no policy well suddenly we find out in the brief off the record that there was a policy to certain people they haven't established a policy they had a policy to pay other people now if you're if you look at robert what robert says to see if you are within you w say that if this case there are simply a policy to pay danger pay up although it was underwritten and that's where we rely upon the supreme court's decision and go back for the proposition that policy is made through decisions of courts or agencies or through general administration that's what happened here that was in the administration of paying danger out and so we were in the same individuals and this is out of about sixty thousand people employed by customs and border protection now over the years sixty thousand and a multiple times that because people come and go and this discovery t allowance and if the section is initiated or terminated the secretary of state will inform the speaker of the house and the committee employer relations of the senate of the actions taken and the circumstances justify that so just to me there's going to be a pretty strong paper trail with documents said the plaintiffs are not saying that the five hundred fifty one people are not representative of what exactly was paintings are paid to see b p employees we don't dispute that five hundred fifty one people or whatever the exact number is there's a chart in the post allowances hardship allowances and cetera to their employees now that o g a uses the word many agencies may pay their employees allowances and if either state or or a particular agency normally adopted a regulations saying everybody in these circumstances get pay gets pay that would then be within the and both of those statutes also on their own terms same in other words they're both permissive this court held in roberts that that statutory language was permissive the way that's five yo say five ninety three so in roberts it's a similar analysis and in roberts the court and then because i found that the al q itself was not money mandating it went to the d s s our department of state standardized regulations elect at that because that was the department of state regulations that were promulgated in response to the da those regulations the court found in roberts also they used the word many and they set the parameters for different allowances in hardship pay but they give the agency's complete discretion whether or not to pay those allowances or differentials and this court held that in roberts the court held that the statutory language plus the d s s our language together was not the money mandating in this court held that and i quote therefore the statute in the d s s are standing alone are not money mandating they can only become money mandating it further regulations were implemented requiring payment that's a picture level sixty four we have nothing here past the d s s are nothing from the agency  e i think for the to turn for something like that and that this court interpreted those particular formal actions pursuant to delegate authority in a particular way to be we don't have that now my legal question is is there a point at which a practice if proved rises to the level of in order or a directive that would therefore support a money mandating conclusion in the same way that happened at this court drew in roberts though without a formal directive your honor i don't think so something in writing from the agency indicating by the agency's own terms that we will pay someone who is eligible under this criteria this allow regulation in the specific sense that they are then binding on the agency until change your honor perhaps in an a p a case but again if if i mean are you aware of authority directives or orders regulations policy what have you it's in writing something in writing that the agency set forth explicitly that their employees please would be paid a certain allowance or differentiated but my question is why i will assume because i don't see anything to the contrary that what you just said is accurate as a factual matter question is why that should matter it matters because other ways to say that nothing in writing differential every allowance at for this particular statute and other statutory provisions out there to look at every single payment for nonpayment made by every single agency and that is not what's congress intend case did specifically set without for their regulations although and roberts it used to instructions in an order so perhaps they were the equivalent of regulations what have you but we believe in this case we don't have anything we have nothing in writing no instructions in order again we have nothing here we have no orders no you're actually just reading thing is if you push back a little maybe i'll just be part of the government for too long but they've got broad authority here typically broad authority that's granted by statute and even some of the stuff here suggests the reg implementing regulations will contemplate because that's normally what happens in the government you get a broad discretion by the sec in the statute and then the person in charge with implementing that provision in order to implement it has to have some rules because you can't be arbitrary you can't be discriminatory so this just seems kind of different whether it's a lot of them just not along with another question whether it's money mandates but doesn't this seem to be an odd circumstance where there's no guidelines that exist to ensure that there's fear non arbitrary and nondiscriminatory application of the discretionary far and grant close differentials including danger pale and then below that it says when the scope of these within the scope of these regulations will know how to manage and something out of that provision that sentence that you are reading from concludes subject to of these regulations and the ability of fox so it contemplates regulations that give some guidance and also the limitation the that there is a limitation limitation is the availability of funds which has nothing to do with the may issue further implementing regulations as he she may deem necessary for the guidance of his her agency with respect to the with regard to the granting of an accounting for these payments in other words the agencies do not have to implement regulations on this they're not required to and this is an offer to the agencies to do so here c p p did not issue regulations no order no policy no nothing neither did d h s s can can i just ask you  congress about the individual that were getting danger pay the discovery was more limited as to who did receive danger pay and the result was the five hundred fifty individuals and do you happen to know this that government discovery uncovered five hundred and something instances of pay was there discovery in to the number of requests for such your honor i don't believe so that the requests for danger no regulations of this agency that tell you anything or not to pay certain people this is not the way the department of customs and border patrol work at these places that are designated as dangerous by the secretary of state how often they do who knows but a substantial number of employees got paid danger pay pursuant to a policy to pay danger pay we say we are within that policy and are entitled to go to court the same way roberts was intitled to go to court  someone told congress a high level person in the agency told congress told a member of congress that one of his constituents who was one of our clients was entitle to danger pay and a whole slew of people inside the agency made rep reid and route responsible positions made statements to the effect that danger paid is paid to all employees who qualify but now that's a statement of what the policy is and i think that in addition to the fact that it was paid it is sufficient to say in effect there is a policy and we are entitle to go to court to have that policy implemented for our clients of the statutory reports i should say those reports are to be filed by the secretary of state not by the agency i thought there was some uncertainty about th