facial challenge to both the scanning program and the related enhanced security fee imposed pursuant to that program has failed and that includes a recent judgment by the puerto rico supreme court which counsel for p r p a submitted it to rule twenty eight j letter to the board and is and notwithstanding that fact we find ourselves here today for there to be article three standing a plaintiffs must establish a causal connection between the injury and the conduct complained of the injury has to be fairly traceable to the action or actions of the defendants and cannot be the result of the independent action of some rd party not before the court here in lies the flaw in the district court's holding finding in this case did not pay the enhanced security fee nor were they assessed the enhanced security fee only option carriers are assessed and are called upon to pay in heavy security and there is no requirement either in law or in contract for ocean carriers to pass on this cost two dollars point is this is of critical importance because the case law clearly sets forth a passed on or an increase calls does not typically convey article three standing to challenge the regulation this is so because the directly regulated sparty commercial discretion did not impose or collect the enhanced security free only the puerto rico ports authority gets to do that our contract and we're private contracted provider our contract assesses imposes or collects any enhanced security fees in some our contractual compensation is independent and separate from the enhanced security  assessed or otherwise imposed enhanced security feed is not entitled to any presumption of truth because it is flatly contradicted by the documents incorporated my point is complete and judicial useful to look at the situation in determine pretty let's say that tomorrow plaintiffs decided not to pay the ocean carriers the cost passed on to them the ocean because plaintiffs are refusing to pay this past on cost the p r p can't sue plaint this it can only sue the regulated party which is the ocean carriers the same logic works in reverse this cost to them if we add yet another layer to this analysis we find we're s two is because s two is another step removed from this  in the causal chain that i described earlier assuming these change these rates do not preclude point gives from establishing article three standing which we strongly believe that it should well established prudential limitations serve as a backstop squarely precluding point this from having standing in this case curiously enough the very kids of ben orleans versus hennepin which is the only passed on cause cited by plaintiffs which was inclined to fine article three standing actually proves your point specifically this case found that two prudential limitations categorically precluded plaintiffs from establishing standing based on the payment of a passed on cost even when they managed to show possible article three standing these pretend potential  of the directly regulated part in our case the directly regulated party are the ocean carriers however plaintiff status as customers of the ocean carriers is not enough to assert  standing because this is not a special relationship conferring standing to assert the ocean carriers rights the various reasons why the courts have wisely imposes prudential limitation is the discussed in our brief however there's we believe others if there is one important takeaway from this portion of the analysis is this as ben orlean explains absent prudential limitation and line consumers  anywhere in the chain of commerce would always be able to assert commerce clause claims of the businesses from whom they purchase goods and services this would open the floodgates to regulatory challenges and make it unduly burdensome for the government to pass regulation in could expose the government to multiple in this case asked on costs are also not within the zone of interest ben orleans the same case cited by point this explains that the commerce clause purpose is to prevent economic protectionism and retaliation between states this is the zone of interest what the commerce clause is intended to protect however passed on costs do not fall within the zone of interest in this case plaint this have knowledge on an outdated six circuit case which mis read the supreme court opinion of why it persist call to hold that no private party or parade or individual was entitled to qualified immunity however the more recent supreme court activity which is met which is specifically delete legislatively mandated kargil scanning programs were contractor that performs the current scanning program to protect the public and we do so under the direct authority it absolutely is your honor it is on the record the documents the court to judicial notice of clearly set forth how the program works and there is absolutely no controversy of the fact that as opposed to cases like richardson our case is very different because we operate within the port of san juan which is p r p a property and were physically located in premises working collaboratively with represented another onsite which have the technical know how and know of operate the machines there's also a p r p is more than one there's p r p personnel present as part of the program and the process and there's also department of treasury process works is that the initial scanning is performed by an ass chewed representative and asked to employ but it doesn't conjunction with someone from the p r p if something is odd in the imaging then they notify treasury and tracey's on site and then treasury makes a decision on how to proceed with regards to that particular container so the way this works is completely collaborative there's no situation in which s two is operating independently  own property doing its own thing which is a case that would be akin to richardson our situation is is this this is very specific and it's exactly what qualified immunity is supposed to provide force to provide that immunity to that private in this case private corporate entity that is performing a government function under the direct supervision of government represent those that is a fact there is physically they do not collect the fees directly from the importers from our cards so how could there possibly be standing under those circumstances since there is no injury traceable to your actions the operative word there is fairly traceable we do have injury in fact our clients once had one hundred and fifty million dollars plus dollars in their bank accounts that are now in accounts primarily of rapid scan but let me start with this your honor for mike so i think this gives context to your question from the inception of the scanning program the express contractual agreements between purpose and rapid scan effectively set into motion violations of plaintiffs federally protected personal rights guaranteed by the commerce clause and it was all done begins the company because one is comes to anybody and has nothing to do with the election fair fair traceability and so we can trace our personal losses to the conduct of the defendant and your question is regarding rapid scan it's fairly traceable to rapid scan because if you look at the documents that are presented in the appendix and we agree those are those are part of the records that's of that's a fair assessment i think it's the record page one hundred and sixty not one hundred and seventy two is schedule d of the operative agreement and you walk through the contracts that were it negotiated and signed between the parties it was there was an electronic transfer of funds every day to the tune of millions and millions of dollars that was supposed to be based upon a scan record that is that rapid game were going to basically based upon scans actually perform when your bank account is increasing at millions of dollars a year and you do not have scan records to support that those deposits you have to know you have reason to believe that cargo scanning fees for cargo that was never scanned which this court has held was unconstitutional to collect fees on cargo that's never scanned you you become part of the process they work together to do that only they negotiated a company part of the participate in another's affirmative acts that causes the deprivation of the complaint but personal participation is not the only prerequisite or predicate for section one thousand and eighty three dollars claim setting into motion a series of acts by others which that added or not was a reasonably should have a set in motion the collection of the feet because the contracts were if we carefully examined the the provisions of schedule d of each of the contracts the funds were originally by contract supposed to be paid directly to wrap each game they amended the contract to say no let's have the port authority collect those fees and those fees are going to be paid stand whether or not scans are actually performed is going to be paid on all cargo entering the port of san juan and after an effective date or a certain date after the employer the approval of regulation eight  sixty seven after that date one hundred percent of all estimated cargo will be will be paid a fee to us by electronic transfer every wednesday the court has held that charging scanning fees on cargo that was never scanned is a violation of the unconstitutional to george excessive fees pursuant to that statute or cargo that was never scanned the criteria for determining what is an excessive fee is laid out it in both  vasquez and in trailer bridge that the appeal from that case on behalf of the ocean carries they appeal just on the dormant commerce clause and in the court held in the lower court and in the court of appeals that there was no dormant co addressed it and said that that is a very low threshold and all we have to establish is that we're not a campaign to assert the rights of others we're serving our own personal rights st person and millions of dollars poured into the rubbish cans bank account i like chronic transfer transfers despite the absence of scanning records they absolutely knew it you review section three dollars of schedule b it provides that one hundred percent of all cargo coming into the port a stand if you will be paid to rap you stand on one hundred percent even though it was never stand that is contractually it's a you're diverting think you are constitutional violation because there was there was they were charging scanning fees for cargo that was not actually scanned and that interferes with interstate commerce and may represent the violations of the law point nothing for the for the from the truth feel our ski is a case in which a private individual was in trusted private label or attorney wasn't trusted with investigating whether a government employee was lying to its employer and in order to do that this is a turn his private attorney had to have the courage and has to act with no  deal with qualified immunity it deals precisely with individuals operate in for profit subject to competitive market pressures involved in non discretionary functions that do not require a special talent the threat of litigation is not by itself sufficient to warrant qualified immunity those the reference to the appendix pages that contain those portions of the agreement facts matter  works the enhanced security fee pursuant to both the law and the holding of the district court in this court in a previous matter requires the enhanced security fee to be impose d on on cargo that comes in through the port on terminals that have the privilege of this or the benefit of the scanning progress process where appro by customs and border protection and the reason for that is because contractually we have to stand ready to scan a one hundred percent of the incoming containerized cargo not scanned by customs and border protection i that doesn't impact our feet we did no way encouraging the p r p hate to impose an enhanced security fee st for scanning that doesn't take plates and again our feet is separate and independent from