the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in opine on whether the wire act applies to state lotteries and their vendors and if so as to which activities or to what extent the deputy attorney general confirmed in a separate subsequent memorandum that the department currently has no position on how or whether the statute applies to plaintiffs or others in their class and he expressed we announce that the department will not pursue enforcement against plaintiffs or other state lottery systems unless and until a determination is made one conduct is actually illegal and two some further warning is given so as of right now plaintiffs face no threat of prosecution for anything they've done in the past anything they're currently doing or anything they will do in the future indefinitely those facts demonstrate that there is no article three case or controversy here for pre enforcement claims to be justiciable plaintiffs must show that they face a credible threat of prosecution and now there's not only a lack of a credible threat there's no threat at all and at this point there's not even any adversarial this on the question whether plaintiff conduct is illegal the other threshold legal issue in this case which is raised only on the lottery commission's distinct admin law claim is that there's no finally jency action reviewable under the a p a it's not clear whether just reports all they need to reach the c p a claim given that it provides no additional relief beyond what the plaintiffs already got on their pre enforcement claim which is a declaration that their conduct is lawful and they cannot be prosecuted but any of that having reached the claim the district court fundamentally erred in ruling that in all see opinion standing alone is final agency action or the opinions are advice internal to the federal government and they cannot and do not directly affect the legal rights of private parties out in the world and all the opinion may well be a precursor to finally agency action if an agency later takes action unless and until one their conduct is determined to be unlawful and to some further warning is given so as it stands they will not be subject to prosecution that's correct as it was anytime in the future well the department has not has not said unequivocally that the state lotteries are not subject to the statute it has no position on that question but that but we were not arguing that what they're doing is unlawful there is no adversary on this on that question yet there  no credible threat of prosecution at this time and that's the article three test if in the future the department were to say you know having considered the question we believe plaintiffs conduct to be unlawful to the extent of you know this particular sale of products over the internet at that point you may well have a right article three dispute and we can we can debate at that point whether there's a credible threat of prosecution but at this point we're not there yet we don't the department disclaimed any immediate enforcement and has indicated that unfortunate would only happen based on  a future public statement that plaintiff's conduct is illegal ed that the wire act was all for offenses of the wire act were uniformly limited to sports gambling that itself had been a departure from the department's position for fifty years which was that the wire act was not uniformly limited to sports gambling and what's particularly noteworthy is that in that fifty year period the government of the federal government never brought any prosecutions against state lotteries for their vendors even though it was enforcing the statute against numerous other forms of nonsupport gambling  procedure because this is a criminal statute that is interpreted by courts d o j gets no deference also gets no deference from this court on how it interprets a statute which makes this markedly different from an a p a case where you've got got to worry about chevron deference right that it doesn't matter whether the department has you know written a long reasoning or short reasoning on honestly going to protection here this is just a leave abstract legal interpretation it's entitled to no deference and so haven't teed up the final agency action argument in precisely the same way that we're doing in this court and that's because the district court committed errors that we didn't you know in its reasoning that we didn't fully anticipate but we absolutely argued that there was no final agency action reviewable under the a absolutely argued that the plaintiffs could get review of the merits of this question if they could satisfy article three standing and ripeness however we don't think that this is a right case or controversy because they can't any of the any of the ways that this court has recognized for showing a credible threat of prosecution none of them exist here there's no there's no threat of enforcement against these parties there's no open no threat of enforcement against other state lotteries there's been no history of enforcement against state lotteries that's  on the rightness issue but this litigation was started as a result of the alarm and the various state lotteries as to the two thousand and eighteen change in position and then the enforcement memo which happened and only after that mean what we said earlier that the issue of state lotteries is a complicated one and now we want to take another look at it and therefore there not a case or controversy so let's go back to the period of time before you issued after the lawsuit was brought  before you issued this order of retraction is it your position that before that time there was an article three ca controversy and that the issue was right no there there absolutely was not an article three case or controversy at that point the factors that this court looks to in deciding whether there's a credible threat of product prosecution were no more present in february two thousand one hundred when the suit was filed and they were later in april and i would respectfully disagree with the characterization that this was a retraction or a change from what the department had said before what the department said and  hundred memo was that it was going to give time for businesses that relied on the prior all opinion to bring their operations into compliance with federal law it didn't speak to state lottery counsel i get the point but let's look at that earlier period before march and could you tell me why you think the case was not right at that point excluded state lottery so are you making a sort of the case wasn't right because what we said  the only question that i will feel pined on is do the are these offenses uniformly limited to sports gambling and also you said no but there are other questions to be answered under the statute one is does a statute an act in one hundred and sixty one prohibit conduct by state lotteries under eighteen u s c one thousand three hundred and seven for example these are difficult questions and the department would have to have to take time to consider them before it's and frankly you know this is not a question that is a significant priority for the department relative to other questions it's facing and so you know certainly the department thought that it wanted to go after state lotteries it wouldn't have taken you know fourteen this question has been pending with the department for some time as you'll probably hear the plaintiffs say but if this was a huge priority if there actually was a credible threat of prosecution certainly the department  were threats and so before i finish here could you just spend two minutes on the merits should we not decide your rightness issue as you want is it really the position of the government now that you are taking no position so whatever as to the meaning of the wire banknote and the new hampshire lottery commission are state lotteries in their vendors and we have no position on whether their conduct is unlawful and we have made a public commitment that we will not enforce them for anything they have done in the past or currently doing or will do in the future we have taken a position that wire  the article three question is have these state lotteries and their vendors establish that they have a credible threat of prosecution as to other entities non state lotteries they are currently subject to a forbearance by the department that was the subject of a twenty eight day letter we sent you earlier this week on the on the merits of the question the phrase on which the district court relied here the phrase assisting in the placing a bet for wagers on any sporting event or contest appears only once within the statute or prohibition it's at the end of offense to and the appropriate inference from the text and structure looking at kennedy for a the general rule and penalty for b the exceptions is that that phrase modifies only the particular prohibition that it's a part of congress didn't put the sporting event or contest modifier in a proper tory clause it didn't repeat it in every cause it recognizes that if a u s attorney were to pursue for example enforcement of a wire act against an online poker company and that company was indicted the company could move to dismiss that indictment in a criminal proceeding saying i don't think that that's what my conduct is covered by the wire act and then there would be judicial review about point but also he wasn't saying that we anticipate pre enforcement review by parties whose conduct we haven't even opened on yet but i do see i didn't see any distinction between do that's right so if he was just making the general point which comes up often and questions about whether you know as it did under the defense of marriage act where where the department having concluded that the law was unconstitutional nonetheless continued to enforce it so that there could  article three case or controversy for this court among others to apply and on the question it was just all of the observing that if we allowed prosecutors to go forth and test this application of the wire act against parties engaged in nonsupport forms of gambling there would be j al review and in the posture most likely of a motion to dismiss the indictment but also he wasn't you know saying we think that we have we expect preen forcemeat review challenges to be brought by state lotteries and then if i'm understanding the present status quo as explained i think what you're saying correct me if i'm wrong but but i think what you're saying is that the state lotteries that bring in hundreds of millions of dollars for to stay center incorporated in their budget planning and that the state of any state could wake up tomorrow morning and find out that if it doesn't substantially change its lottery within ninety days its officials could go to jail if the dipper yes if the department changes its position and announces that it thinks that state lotteries are engaged in con that is illegal at that point i think the plaintiffs would have a much stronger and frankly quite strong argument that they should be able to obtain prevent pre enforcement review at that juncture but we're not there yet as it stands we not only disclaimed any enforcement  we don't even disagree with them as to whether their conduct is illegal or not there is no adversarial miss as to these plaintiffs in this litigation if they can call if they get that call to use them on starting the ninety day clock whether they do the day after tomorrow to this is i think is sort of like aircraft carriers you can't turn them around quickly the state budget is contingent on the funding what do they do the day after they get that call from the well the it's although the department has committed itself to providing at least that ninety day forbearance period there's nothing that prevents the department from taking the considerations that you quite rightly have raised into account and you know certainly there's been for parties that are not state lotteries and their vendors for the other you know online poker companies of the world there's been a lengthy forbearance period during the length of this litigation and you know certainly the state lotteries have find yourself arrested yes but that's not enough to that's not that's not enough to show a credible threat of prosecution and we never pursued state lotteries in their vendors with indictments before the only thing the plaintiffs a point to which i'm sure they'll call to your attention is a two thousand and five letter that was sent to the illinois lottery about a pending bill and the only legislature and that you know that letter cited a few different statutes not just the wire act it was passed before huge ripper generally a lawful internet gambling and didn't speak to the way that state lotteries carry out their traditional operations and so that you know that that piece of evidence is a very thin reed that you're going to be hearing about aside from that there's no history of enforcement against anything you could call unfortunate in the entire history of the wire act and so there's no reason for these these plaintiffs currently to fear enforcement indeed we've disclosed that we will pursue enforcement against them  and i've lost track of my own time i don't know have the right i have any time being whatever i have left i would like to say for a bottle all right please the court my name is anthony go there ian i represent the appellee the new hampshire lottery commission new hampshire you have won new hampshire like most states puerto rico the district of columbia in the u s virgin islands operate lotteries these lotteries generate millions of dollars of revenue but the sovereign choose to fund critical operations of their governments in new hampshire lottery proceeds are directed to support public education and  business of non sport betting or wagering to use the interstate wires to transmit wagers or to transmit prizes resulting from bets or wagers if reverses the two thousand and eleven opinion and in doing so restores the and eighteen opinion therefore criminalizes how modern day lotteries do business and expose the state lotteries that they lied on the two thousand and eleven opinion to criminal sanction the district court correctly concluded however that the wire act is limited position in the future but that certainly that could be retracted tomorrow and we will have ninety days to try to conform a massive operation to the wire act or in the twent opinion or risk criminal prosecution a ninety day period which would not be possible to comply with thank you i have a question so let's but it is a notion that maybe state lotteries will be treated differently because they are states and maybe  is that a cause for concern for us and if not why not i don't think it is your honor we asked for a declaration i think it is your honor absent absent a clear statement from congress that state lottery conduct with respect to sports betting would intend to be regulated but that would be a problem under the th amendment ok thank and then the final bill to leave those two comments so that prompts a couple of questions do you agree that if those commas had been kept in correct i think that's right your honor i think that those commas were kept in that that there would be a different construction potentially to the statute and that the results may be different read politically to further its overall purpose which is to stop the criminal enterprise from using the interstate wires to further its gambling business and the wire act accomplishes that goal cleanly with the we should have some caution about leaving too much into the absence of something my concern here though is that i'd like some help with it's not just the absence of the two commas the fact that persons engaged in the business of non sports betting would be afforded d information and informational advantage over persons in gauged in the business of sports betting they would be able to transmit information wire act quote on it's face applies to bets or wagers of any kind and we know that oh well see had lotteries specifically in mind because at a denver eighty eight and eighty nine well see acknowledged the reliance interests of this states that quote began selling selling lottery tickets via the internet in quote after the issuance of the twenty a level and a well see opinion reminded the states without a trace of irony alone has the power to broaden or narrow the wire acts prohibition that posed a clear and present danger of prosecution then that and then was present in the hemp counsel case the question the next question is whether the april th teen opinion or memo this issue just three days before the summary judgment hearing somehow diffuse the controversy so as to defeat the plaintiffs suit the court should compare the statements made by the u s d o j in that april th teen memo with those made in the rhode island association of realtors case in that case the state argued that the plaintiff proposed conduct quote does not appear to fall within the parameters of the prohibition and quote that's prisoner's ok just to finish judge theresa but this court in in that case still rejected that cautious phrasing as a quote far cry from a flat commitment not to prosecute the government's post complete statements in this case do not even remotely approach the type of disavowal of both intent to prosecute and coverage of the statute that negated article three  it is quite similar to the rhode island association of realtors case except that here the d o g s april th memo is far more equivocal as to the viability of the of the plaintiffs and it is and it arises under frankly much more suspicious circumstances coming just three days before the hearing on the motion for summary judgment  i mean if you wanted to look at a case that blended the civil and the criminal you might look to the supreme court's decision in abbott labs where the regulation there had both civil and criminal implications and the court said there when a regulation requires an immediate and significant change in the plaintiff's conduct of their affair with serious penalties attached to noncompliance access to courts under the administrative procedure act and the declaratory judgment act must be permitted ok with that that's helpful thank you that that and my questioning you have questions yes i did if you could oh i don't think that's what we're saying at all judge chaotic and i'm happy to have the opportunity to address address that this is not any ordinary or well see opinion the o l c opinion here is performing a rulemaking function if this opinion were issued as a regulation of the federal communications commission there would be no doubt that it was finally agency action subject to review and that the change in the executives working on here is announced in n  c opinion shouldn't really change that outcome it's not deliberative advice internal to the department it's an edict solicited by interested private persons that was published to the public at large precisely to end businesses reliance on the two thousand and eleven o l c opinion and to generate compliance in that public at large with the new opinion it's just like the rule in abbott labs the loyalty opinion purports itself has both both claims were brought under the clear tory judgement act and under the administrative procedure act so i think it's amply supported by precedent to proceed to proceed both ways you know there are there are more and more parallels to abbott labs in this case in abbott labs also the government argued that the that the f d a didn't have prosecut power just like it says the l l c doesn't have prosecutorial power here but the court recognized that the exposure to the possibility of enforcement by d o j had bight sufficient to warrant judicial review and here quite abbott labs well she's opinion does bind the department you see that at page eighty five of the addendum finally also in abbott labs the justice department made new representations to try to defeat review so let's  general in that case and you see this at page one hundred and fifty four of abbott labs absolutely foreswore any possibility of the use of criminal remedy but the court said that the subsequent representation should not suffice to defeat  lawsuit properly brought and we would urge the same result here judge that's time judge to weigh if you want to allow that repotting at this time for the appellant we could do that yes thank you your honor i'll be brief st in response to your question about where the government raised the final agency action argument you can find that in our motion to dismiss at and opposition to plaintiff summary judgment motion docket document over forty seven on the district docket pages thirty to thirty pages thirty to thirty one what is that that is the government motion to dismiss and opposition to plaintiff's summary judgment my my colleague in the new hampshire attorney general's office pointed out that the district court invited us to address the question of whether states were encompassed within the term whoever what we opined in response to that was that that presumption was inconclusive that that is the conclusion we gave that we there are other factors that have to be looked at  if a state for example started you know counterfeiting us currency we don't think that because they disagree with federal monetary policy we don't think that states could escape you know criminal consequences for that just because that relevant counterfeiting statute uses the term whoever but the point is that it it may well be part of the analysis is just it's not conclusive in itself and that's always said below and this gets to a bigger point which is the role of the courts is to get involved when there is a credible threat of prosecution it's  not to generate disputes not it's not to to to force the government to give advise or any opinions before it is ready to do so and here the government has not reached a conclusion that states are encompassed within the language whoever being engaged in the business of betting or wagering i think there's a little bit of confusion about the role of all c as well also does not have a rule making function contrary to what mr mcgill said this is not an abbott labs case because all  has and d o j in general has no authority to render binding legal interpretations of of of the criminal law that binds private parties this is not an admin case where an agency can interpret by statute or promulgated to tional requirements  similarly the extent there's a credible threat of prosecution here you have to look to their risk of enforcement by prosecutors and here the deputy attorney general the d o j official who has power over both wealthy and prosecutors has said we will not prosecute you and we have no position on when you're covered under the act and so to the extent that you think an inference is could be drawn about whether he was thinking about whether state would be encompassed that's beside the point the official with the oversight authority of a prosecutor says th department has no position on this finally the realtor's case is not a useful case for this court to rely on that was a st amendment case in which the court said because of the background understanding that when st amendment values are at risk the courts must be especially sensitive to the danger of self censorship and i quote courts will assume a credible threat of prosecution in the absence of compelling contrary evidence that is if the presumption is flipped in st amendment cases and this is not a st amendment case is no relevance of abbott labs your honor i mean the council has identified a few factual parallels but the fundamental point is abbott labs the case about agencies undertaking delegated rule making authority to issue rules and that is not the case this is a pre enforcement challenge to a criminal statute the save the united states of america and this honorable court counsel you may disconnect from the meeting