we think that what should happen in this case is that this case should be resolved in the first instance based on briefing on the pure questions of law that are presented on the face of the agency action that's just military and the underlying question if this if the court were to find that it's reviewable which we don't think it is but if the court were to think it was reveal ball the question of whether it's arbitrary and capricious or otherwise invalid all of that district judge in the magistrate judge said that they wanted discovery first and in light of that there was a briefing schedule where the motion to dismiss wasn't due till mid december of what we would propose and what we intend to do is to follow our motion to dismiss within the week we think that that  within a week of today we were hoping potentially to get it done as early as friday but it might push over into early next week but certainly within a week we intend to have our motion to dismiss on file we think that a case like this is readily review considered on a motion to dismiss both on our threshold grounds and review a belly as well as if the court thinks it is reviewable on whether the agency action is arbitrary racist or otherwise invalid based on the administrative record that we have already produced and presumably that's right whether whether the agency action is subject to judicial review under the a p a or whether instead as we submit both the a p a and the i n a preclude judicial review of the agency action in an issue in this case and i think it's important to recognize your honor that it's not just our position that this case can be decided based on the agency action that's an issue with the admission the record presumably the other side would not dispute that they think that the agency action is invalid based on the administrative record we've supported i'll be happy to hear otherwise from them but i suppose of assume that they're going to say that they think that just based on what secretary duke said and the administrative record we've produced that the action is either arbitron caprices or otherwise invalid there is simply no reason why those issues cannot be adjudicated promptly and at the outset before engaging in a massive fishing expedition into both documents and testimony about internal deliberative process he's at the highest levels of both the department of homeland security and the department of justice that completely up and normal rules for administrative review agency action that all those issues are simply a relevant under the proper standards of any other cases elsewhere in the country taking up essentially the same issue there is one other there are several challenges to  wind down the one that's particularly relevant to your question your honor is there is a case in california where there are similar attempts to engage in discovery or expansion of the administrative record coordination between the coordinating or whether the plaintiff groups a similar case pending in maryland my i believe that there are one or two other cases those cases do not seem to be moving on the same sort of  pace in terms of the discovery as what's going on in both the new york case and the california case and those being subject our motions are dispositive motions being made to dismiss in those we will be filing shortly our current intention your honor is to file in the new york case within the week as i said in california our motion to dismiss is do i believe on november first and in the other two cases we're going to we're our intention is to file soon thereafter we don't have a due date i believe yet on the other two what are the other two cases is one of them the maryland case i believe one of them is the maryland case and i believe there might be one other i polish on or rather there might be some differences but the core allegations are the core i think that's correct i think the core allegations of the plaintiffs are essentially the same and so as we said we think that those sort of threshold legal issues can can be and should be determined at the outset and especially given that what they instead want to do it to see these significantly intrusive discovery and ministry to record requests about deliberat freedom of information there are a lot of different ways in which this is very wrong on or that might be one of them if this is in the teeth of cases like morgan and armstrong and reno vs d c all of which make clear that you're not supposed to allow plaintiffs to challenge government agency action especially in the context of a prostitute discretion policy just by asserting that there is bad faith behind out any have evidence without any allegations without  alone without the strong showing of arafat's make a finding that there was sufficient showing that he did not and they have not even actually alleged that there was back there hasn't been any justifies what he's doing on the basis so at a minimum what we had to deal by this friday was thirty thousand documents that were either before or in the d h s s or the attorney general or the so called first tier subordinates but there was going to be a briefing yesterday on whether it would expand to the program effective march fifth and that is the driver of what is happening in the district courts in brooklyn and california and the district of columbia and in maryland today the court has come seeking an extraordinary order motion and they have a deadline of december fifteenth to make a motion but nothing prevented them from having made that motion a month ago importantly the government relies primarily for the just disability arguments on a basket of twelve fifty two g th statute heckler against cheney what they don't tell this court is the fifth circuit last year rejected all of those arguments when it held that the challenge to expanded daca was entirely just as simple and in fact there's a contradiction at the heart of the government's case today in that it the attorney general announced determination of daca due to litigation risk from the texas case if he sincerely believed the attorney general gave us a reason in his announcement and the secretary of homeland security in her memo litigation risk as the basis for terminating daca if the government sincerely believes that there's a litigation risk based on the texas litigation that they cited then they n in the district court but that doesn't seem to me the real reason not to have that question answered for the purposes of this litigation but for the march fifth deadline and the interest yes and it did so first by rejecting the very just disability arguments made here that reno against a d c and hacker against cheney and us the twelve fifty two g preclude review of the program so if the government does genuinely believe there's litigation risk and i take the attorney general at his word medication risk does not necessarily mean their risk of litigation that's going to succeed unless they risk litigation and aren't going to mid level officials of which we completed one and a half we received fifty six pages in response they are piece it has been measured and deliberate discovery the california case is proceeding in a different schedule with earlier deadlines on the dispositive motions which is forced of those pla to notice far more discovery and serve far more discovery in fact the decorations in this case come from the northern california filings it has been measured and deliberate in this case actively managed by the magistrate judge and the district court judge today the california plaintiffs are in the middle of a deposition and they have one tomorrow and one on thursday in til this day was entered we are not coordinating for size they but we are sharing those depositions so the same officials might not face a second position because of the state of the california plaintiffs are going forward on who might qualify for daca they should apply no your honor individual is at the home security affirmatively sent notices to tens of thousands of individuals exhibit g to the second amended complaint is that notice that said apply as soon as possible then they actually you must apply by october fifth or you will forever lose your rights to renew your status they did not issue corrected notices to the tens of thousands of people to whom they mailed an individual notice it's a corrective notice claim had they not sent individual notice to people in the first instance saying apply when you can why require them to send notice in the first  place that may be subject to debate but having sent one notice exhibit to the second a complaint and then failing to correct it people reasonably relied on the notice they received from the part of home security specific to themselves saying you need to apply security nor an end in the department of justice which of course is involved in every point many questions from you know all of the u s government respectfully those  not our discovery requests the government has represented repeatedly to judge us that the decision makers were the attorney general and the sector of homeland security they've been invited to clarify that in light of the litigation position that is only  security you're not seeking all the documents that were generated in the department of justice and in the department of homeland security that has any bearing upon all of the documents no your honor we're seeking in the administrative record  as to the administrative record both sides why your demands with respect to the administrative record as you call it would serve your your claim with respect to the notice  they're there they're probably overlapping records probably serve both claims are specific to each on the notice claim the constitutional notice is inadequate why can't that be remedied without finding out who messed up why because you honor the constitutional standard procedure the process of course is mathew's be eldridge and the third factor about the administer ability of additional process goes precisely to the first we met we noticed two depositions the first one was an operations man and we ask questions about the feasibility of correcting the notices that were previously sent that's matthews v eldritch third factor there's nothing unusual in this  documents are we i know it's hard to tell before you see the case but we've heard that every single lawyer in law in homeland security in washington his answering your document i understand what's going on you know thank you for the opportunity your honor i believe that they may be conflating the aggressive discovery in california which has been much more expansive than anything we have served with our discovery  what i can tell you for certain is this the administrative record produced in this case is two hundred fifty six pages in response to our fourteen requests for production they produced an additional fifty six pages that's fairly routine stuff i don't know what explains the difference between three hundred twelve pages and these larger numbers but i think we're proceeding incrementally modestly there's one other data point in the california case is the judge asked for a privilege log on the record and it identified eighty four more homeland security records not department of justice not in homeland security records judge also up in california conducted in camera review of those eighty four records and he concluded that thirty five of them should have been included in the administrative record in whole or in part and were not subject to privilege and ordered their production on friday so there seem to be an additional thirty five records that the judge and governor has reviewed in camera that he believes are part of the administrative record from the homeland security  can understand why the administrative record is relatively routine these would be seeking would also use we have sought limited discovery on the procedural due process claim and we have an equal protection claim there as well the procedural due process claim is the heart of it and as i said we noticed only two depositions in this case two depositions one of which was the director of service center operations and we talked to him about corrective notices in databases and burdens and so forth and we didn't complete the second one because at the stay was entered friday afternoon midway through the second one it's not easy i recognize this court does not routinely micromanage discovery the standard for mandamus of course is extremely high and appropriately so in particular given that the ninth circuit declined to enter a temporary stay instead proceeded with expeditious adjudication of the mandamus but let the discovery roll forward we hope the court will do the same here lift the stay order prompt will respond as quickly is this court needs a reply like in the ninth circuit a day later and this court could adjudicate the mandamus we are confident that the government cannot meet that high standard for the drastic have requested a modest and targeted discovery in our case it's related to our information protection claims we've asked for two requests for admissions one set of interact consisting of fifteen questions one requests for document the whole scope of to discovery requested by both plaintiffs in this case it is extremely modest so if you were to aggregate it that would only be again we've only received fifty six pages the point the point here is not to mire this court in the details of discovery because of course that's not this court's job this court's job is not to manage discovery that's the task of the district court and the magistrate judge we make these points only to help illustrate to the court that there are no insurmountable burdens  here the question of harm the government hasn't made any showing of harm they've claimed these burdens many of which are related to litigation in other cases and not appropriately considered for a stay in this case they haven't secretary they have identified the two decision makers here as the secretary and the attorney general the contours of the administrative record flow from there i see my time has expired so i just wanted to address a few points that were raised by  judge sac for example you asked about and it's right that when a defendant makes a strong showing defenses threshold defenses to suit that the district court might ordinarily consider those what we have here is a situation where defense where defendants have not made any such showing to the district court they come here today for the first time saying that they are prepared to file early they could have filed their motion to dismiss weeks ago even a month ago and raised these to these issues since the complaints were filed and discovery has been ongoing defendants have been actively engaging with the district court on the matter of narrowing the scope of discovery and requesting extensions they've received meaning for relief if they believed they had threshold defenses to suit that were so strong that they would carry the day in rather than asking for extensions from the district court and agreeing essentially with the plaintiffs on the appropriate standard for defining the administrative record they could have sought to present those claims the district court noted that they presented only a sketchy overview of claims and in fact to this court all they've i'm a sketchy overview they just records that they  only said several sentences in before this court all they've identified are a statute and a couple of cases the application of which was expressly rejected by the fifth circuit as apply to this kind of categorical deferral decision so they haven't made any showing of a clear entitlement to the kind of relief that they're not at all your honor what i'm saying is that they have come to this court suggesting that the district court has acted improperly in sequencing the district court is improper for the district court to allow discovery to go forward while waiting for dispositive motions to be  deadline and because there are claims in this case that do require discovery for example the plaintiff states have a claim based on information protection so in order to make the docket program successful the government gave particular assurances to doctor that their information the sensitive information they provided for themselves and their families would be protected in certain ways and not used for certain purposes the defendants have with informational privacy for individuals who already provided their information to the government so the changes include an executive order that provided certain privacy protections were not going to be applied to non citizens anymore and it also included some changes to the website what i'm saying your honor is that the that here we have some information protection claims we believe that a change has been made in the way that people's information has been used so we are seeking discovery to find out what protections were there what protections have been removed it's particularly important now that the program is winding down to understand whether people who provided for example that the information wouldn't be used for particular purpose if we understand we know what the purposes were that they told beneficiaries but obviously there had to be special safeguards in place to make sure that according to your definition well we all agree that the administrative record is the record of documents that were considered by the decision maker that are relevant to the claims being raised in this case the decision makers identified by the think it's important to say that even with limited to that first your subordinates issue first of all judge groff has asked for briefing on whether it should also be extended to second tier support it and more importantly the issue isn't just what was literally in front of the eyes of either the secretary or the first your subordinates the more fundamental point the bedrock issue of ministries of law here is that deliberative materials that are before the actual decision maker are not part of the administrative memos that was in front of the decision maker they sure read it but that's not part of the administrative record that's the core deliberative process and there's the d c circuit on bank held and said luis obispo it would completely destroy the agency decision making history and record does not include even everything that was before the two decision make two points that's that's correct and we do not agree that there were two decision makers there was one in only one decision maker s right so the attorney general certainly did provide a legal opinion and the acting secretary drugs certainly did consider it but that does not make the attorney general a decision maker and makes him someone who advised the decision maker the actual decision maker here was acting secretary do but whether you say it one or two of the more fundamental point is that it advice that was given to those people deliberative advice is not part of the administrative record just imagine what this would look like i did it was the first thing we tried to do your honor we suggested at the very first as conference that we thought the way this case proceed is it with an initial briefing on motions to dismiss the judge disagreed said that he thought because of the march fifth hearing discovery had to be allowed to proceed and we've consistently in every filing we've filed in this case in every status conference we have that we think that this should be done with motions dismissed to begin with because of the crushing requests that have been imposed on us from the very beginning saying all the documents by the press or other obligations and in this litigation you made abundantly clear that we would not be having threshold briefing on motions to dismiss that and then if we discovery would immediately commence and break and then hear the he said but he wasn't going to require them to respond at the pace at which we were going to file and he was going to have all these discovery obligations at the same time let me make sure i understand what we're talking about talking about a motion to dismiss it's one thing to make a motion to dismiss and maybe i don't it could be one thing to make a motion to dismiss at the very outset having to do with just this you ability with the very power of the court to hear this case it's another thing to have the motion to dismiss which you would certainly bring on the basis of saying ok you have the power to hear it but there is no such you know which you but but but we win they lose that's the ordinary motion to dismiss so what we're talking about i think that we're not may not be talking about the the things the dutch guy fish was talking about what i think are focuses my focus is precisely does this district court have the power to hear this case or not you know and that's very different from whether they stand a cause of action or there are at a minimum we agree with you that the not just threshold just issue building are right above but let me just emphasize why we think it should go beyond that even if judge gaffers were to disagree with our threshold non reviewable the arguments there is no reason why the basic arguments that they're making that the agency action here is arbitrary increased or invalid adjudicated on the briefs based on the administrative record we have already provided and indeed they admitted i believe that if there wasn't the five month deadline if we had just said that docket was ending on september  that our consistent position has been that there should be no discovery or supplementation of the ministry of record for two reasons one is as a bedrock matter of both administrative law and constitutional law there is no basis for discovery there is no basis to expand the administrative record to deliberate court deliberate process that is just not proper under either the a p a or the constitution and i don't so i don't want to second guess your litigation strategy but that seems to me to be motion to dismiss but there is a motion to say that there should be no discovery and no supplementation the minister to record wholly apart from the motion to dismiss it is again your honor if this was a challenge to an end rb adjudication no one thinks that they would be able to say we would like to have every document that's in front of the n l r b brought this into bold relief by making the motion you haven't made the motion your honor i think you're conflating two separate issues one is the motion for dismiss what the second point is the motion we clearly have made repeatedly which is whenever we file that motion to dismiss it should be determined based on the administrative record we have produced that it should not be supplement is there any motion to dismiss well that's true but that doesn't stop the fact that he's continually ordering discovery that we have to comply with three new down two streets is and i'm you know this is just a stay motion yet at this case is right at least some of the claims in this case arrive i don't think that their claim i guess i'm not sure i should even make that concession but at a minimum some of their cla turn to the day calendar first case well here is yucca valley versus the city