record its troubled me a memorandum of understanding that was entered into between the secretary and the montana beef council is in the record it was presented to the district judge to some argument about it below and i know your colleague thinks that maybe you legal or not binding but the judge never addressed to me he did not know a district judge now and if it is binding it's quite compelling it gives you your client complete control over the message of the montana beef council so what do we do with do we do we read it ourselves and say we find it binding it ends the issue do we send it back to the district judge to tell us what he thinks about it it's sort of an extraordinary thing because it says if somebody is alleging illegal conduct and one guy says all right i promise to stop or at least i promise not to do anything illegal anymore and the district judge ignores that  give comes up with an injunction anyway i'm just i'm a little puzzled about what to do with it tell me what you think we should share the government's view that this court should consider it in the first instance and there otherwise but it certainly is more specific than what the regulations in the statute say with what's in the b fact itself however everything that is listed in the m o you every mechanism of control has a basis under authority that is i would point the court to this is it title seven of the code of federal regulations section twelve sixty point one eight one this is the regulation in the before they deal specifically with qualified state these councils and there are provisions there i would point specifically to hear it's section twelve sixty point one eight one subsection b six and that provision that at seems funny that that is now your argument when i didn't even see that in your brief it seems to me that the best the secretary can do presently is to decertify the montana beef council that is certainly part of the authority of the secretary and joined at this point while they have to  send what they're going to do to the secretary and the secretary can do audits there's nothing to suggest the secretary can do anything more than decertifying again i would point the court to that be six provision which allows the secretary to request any information first of all the best you could do is remove the board the second the best you can do is if they give you all the information they give you the best you can do after that is the certify and if you don't like it that's quite a bit different than the other cases where there would preserve a gauge pre approval right not i mean i think it's different from some of the other cases i don't think it's different from all of the other cases and i would only ones that i have in front of me approximate paramount of the lane of farms but i don't know there's nothing in those cases which would suggest there's anything about only the certification that if you don't like what they're going to do right well just to those cases specifically in delano this court page twelve twenty nine donna says specifically the ketchum act which was the act it was edition of their quote does not require any type of review by the secretary over the actual messages promulgated by the commission now the secretary had discretionary authority to do that but often had not exercised the authority to actually review in the court explicitly noted in july no and that there was no requirement of review by the secretary paramount similarly this court noted this is a quote from know if you look very carefully the secretary could appoint all of members of the board and then approve get rid of all the members of the board in this particular matter all they can do is get rid of them right and getting rid of i think i is after the fact get rid of the board or decertify it just a couple of responses that one they do have control at the outset because in order to be certified in the before it has to certify the beef council in the first place which we think is analogous to an appointment reviewing all the advertisements that are proposed by the montana beef council conducting audit i mean some of these are listed in the regulation that i would have to earlier there's also just i should say that this exercise that we're engaged in of going through you know and picking out one particular factor from delano and saying it's less strong here or one factor from paramount and saying i'm not trying to figure out one factor i'm just trying to say when i look at this when i see the path the secretary got to do with this pointed out it's going to just ask what's the what's the what's the control on the federal side wins what's the secretary's control over the message there are several and i think it's actually useful to try and fit this through the lens that this is where you know the federal side is constitutional the supreme court's told exactly right and part of the statutes put some of the very same statutes and same regulations that the supreme court relied on in your hands in reaching that conclusion are the exact same statutes and regulations that go govern the speech of state beef councils and again this regulation the sixty point one eight the congress from the secretary of stablish the general terms of probation promo promotions then the secretary exercises final approval authority over every word used in the room promotional campaign the best you've got is you're going to send that stuff to the secretary and he can audit it but the best the secretary is going to do is the certify that again i don't think that's right again the analysis under the effective control test in your hands and that this court is applied in paramount and delano is a holistic analysis that looks at all the various and dish of control if we start with the statutes in the regulation setting forth the overarching message those are identical in your hands and here because the same constraints on the overarching message that the supreme court identified and listed at length in your hands apply to other speech activities and state the councils so whether any cases one of the difficulties with this is we're trying to mix and match these facts with previous cases and if they are matched we wouldn't be here  in these particular situation and it's just then determining whether the district court is right or wrong we're supposed to give deference to the district court as long as they apply the law correctly correct if they apply the law correctly and  law correctly here because this standard that they applied for a couple different reasons the standard that they apply does not account for the it doesn't even reference the exact same statutes and regulations that the court considered dispositive and relevant in joe hands and this is exactly analogous to paramount paramount also involved a preliminary injunction and in fact the court went out of its way on appeal to know what a careful and thorough job the district court had done in examining the record and applying the correct standard there the district court the effective control standard under johanson but this court in paramount reversed and vacated the preliminary injunction because it found that the application of that broad effective control test was incorrect and that was a minute it when i read your briefs i did not have anything in my notes to suggest that the district court applied the wrong law in fact i found both parties to suggest the district court did not as we said that this court should do exactly what it did in paramount where even though the district court had applied the broad test that is it invoked the correct test under applied the broadcasts one part of the law did they not apply there  s recommendation we pointed to several cases that in addition the district court erred in applying in reading knox as saying that an opt out regime is per se unconstitutional that is a plain legal error was statutory and legal authority but then it said that it would need further development of the facts to assess whether or not there was effective control and if there's further if the basis the correct basis for determining whether or not there's effective control is the legal authority statutes regulations and the the need for further factual development so that part of the district court's ruling is legal error but i would just step back and say just as this court did in paramount applying just simply invoking the correct precedent in this case your hands and then saying that's what we're going to i think it's actually it's a record page fifty nine which are in the guidelines for the b fact itself those are guidelines getting back to one nine hundred ninety that with those say is that if qualified state beef council takes any action that's not authorized by the fact they're appeal the decertification yes i don't think there's a right to appeal in the statute again that's a decision that's made by the before which is the you know the entity that as you hand referred to is it made up of industry members are appointed by the secretary now the secretary does have the power obviously to appoint and remove board members of the of the before exactly which is why it exercises control over to be forward in overseeing the cuban species i can see that my time is up if there are no furthe questions thank you thank you ruskin for plaintiffs i think the reason the court's having so much trouble is the government's asking for something truly extraordinary here through the federal defs chekov program the government's forcing independent one it's not truly extraordinary constitutional standards this is so like they came off the street and said for the first time we're going to put this program together and we want to block from you well i have to tell me walk tell me why under the supreme court standards given the evidence in this case you think the district court didn't abuse its discretion but if you want to convince me that this is an extraordinary program that i've never seen before in the history of human kind stop short so every single case and to be fair unless there's good ones that i don't want to either already has every single case including johan's worked at the statutes and regulations and that's what the government itself said should be the focus of this case in the statutes and regulations in every single case provided for two forms of control one is provided for the government to be able to appoint or somehow participate in the selection of the members of the council and chew provided for the government to have a role in actually approving the speech the statutes and regulations here provide for nine ok so let's let now let's come back for a second and see if you can help me and after the magistrate judge makes is is recommendation in this case the government says chief what's troubling you is that the secretary is an exercise in sufficient control over the message we can fix that we get the month out to be counseled one of the fans will get together with the secretary and we'll we'll give the secretary complete control of our message let's assume for the moment that that's a perfectly valid agreement between the secretary and them and let it be for counsel do we still have a constitutional problem yes you do for choose separate reasons one is that that control in and of itself is not sufficient every case has provided that the government has to have a role in appointing the members of the council the memo you doesn't get close to it we have one member at it being appointed is that enough that actually is not the facts of the johanns where half the members were appointed by the government but that distinguishing isn't significant that would be the micromanaging that this government surviving on so much as making the line drawn between nominations selection process no i'm asking whether w said the nomination and selection process was the equivalent of government appointment and it's paramount your honor but it's towards the end of the case where the government where the court says that you there are in fact differences between the paramount procedures and the johan's procedures but they're not significant enough to raise constitutional concerns those differences are that impairment the government was a was nominating and choosing the election process and in johann's the government actually appointed but the government in both cases whose discretion is being restrained by the secretary was what standing do you have to complain about whether or not the agreement is regulated is provided for new regulations because in effect you say you're engaging illegal conduct mr secretary you're sending a buck to these guys and you don't control their message he says well come on in guys control your message and they say yes what do you have standing to object because the memo you could be revoked at any time because it's not in the statutes and regulations in the entire premise of the government speech doctrine is in fact that there is democratic accountability a secret of that your separate argument that deals with the appointment of the phone but it also goes to the m o your honor a secret ad front of this or judge and said here's a memo you judge i think we've solved your problem no if you haven't solved the problem that's the point is that the payer is across montana should be aware about this and know who they can hold accountable and something that that's that's a separate that's why i'm trying to separate you arguments there's a control argument and there's an accountability argument so on the control side the m a m o u at least until revoked gives the secretary complete control over the messages and it gives the secretary control over the secretary the secretary can do this approval pre pre promotion where the secretary gets the message every time gets to audit all he wants to do all he wants to and if it isn't according to what the secretary likes decertify under the same discretion why is there a difference was i do want to correct a factual issue there your honor the secretary cannot be certified in the first instance that the certification power belongs to the before which is not a government that but the secretary is in charge or for all practical purposes of the be bored i mean that's what you ons would get us to that point i don't think that amounts to the equivalent of an appointment power but even even assuming  particular instance from beginning to end the beef council has to send the secretary every message it's going to do that we've councils got the subject audit the beav council's got to give answer any question the secretary wants about the audit and about all of this message and if the bit secretary doesn't like it decertification just like that why is that any different then pretty approving the message well so you're not i think that the we've looked at him all the cases you've had both the appointment power and the approval power there's a reason for that which is they're saying to me is well go back to the appointment power judge ok i've got it on the appointment  i've got your argument we're now talking about the approval process and what i'm saying is you need both together and for good reason that the government speech doctrine take speech entirely outside of the first amendment for once you say something is government speech woman no longer applies and but the problem that we have with this is when i look at look at paramount look at the lane of farms at that point what is under the government and what isn't under the government seems to change with the case and it seems to get broader for allowing people to do more and more without being out of the government and all we're doing is one step further in this case but as to the message of self that's why i'm concentrating you on it it doesn't seem to me that that is any different whether you do it afterwards when you know what they're going to say you can audit whatever they're going to do you can go through it anywhere you want you can get rid of the beav board if you subject to the secretary's control correct can they hire an ad agency to shape the message can the committee hire an ad agency to set the message just sir and does that that still remains government speech if it goes through the proper procedures of the government approving the statements and you know ok so against this why can't we view the montana beef council as an editor and c n n fact hired by the the federal before and i could sue too much beef in this case well because it just because the government's been very frank that's not what it is if you look at page five of the government's brief what they've said is that this montana be counselled was set up to be an independent industry run association that the terms for itself what the speech is if you look at the beef order in this case the federal regulation what they said was the government got to comments the army claims not to be able to find these in the before and it's briefing but you look at the before  are two separate comments one is that you should audit the state council's more and chew is that you should review the state council statements and actually tell them what they should be able to stay in the government says we're not going to do that because these are supposed to be independent separate bodies and that's where you get into problems with the government speech doctrine how could it possibly be government speech when the government's this claiming any form of control and what the government wants to do in this case is run away from it statutes and regulations instituted through public notice and com injunction and therefore because we're going to have a trial right or a summary judgment yes or certainly what remains to be tried as this always trying to ascertain to be the next what remains to be tried i mean you say that and that's what i tried to suggest to him the same question well remains to be tried well i think where we would like to investigate your honor is if the government's really going to rely on these extra statutory extra regulatory controls what they actually mean but you  this is the district judge has now resolved this case given the district judges view of the law you did not put in any more evidence whatsoever to prevail right i think that's highly likely on about what the government's asking you to do on appeal which is a very peculiar thing to do on appeal is to reweigh actual evidence about non statutory non regulatory controls and i will say i don't i disagree on of the district court did not consider the m o you the district court was repeatedly told by the government to ignore the m o you if you look at the government's briefing which we submitted in our supplemental records against accepts a record what they say is you need to focus on the statutory and regulatory controls and they say and that's not sufficient for you we've got this  overstayed a bit the government didn't say ignore it the government said we win without it but you know judge if you're worried take a look at this because we surely win with it they didn't say don't look at it at all no they cited the law no farms and s so can you tell me can you point to me a single place near briefing where they say judge we put the them or you before you but we want you to ignore it and not consider it at all no but i can now and now i've got the problem that the district judge didn't consider it at all why should we just vacate the injunction and send it back to him to consider that but for two separations first is that under this court's case while the government's original statement that the statutes and regulations control is correct and the statutes and regulations don't provide any kind of the authority that's necessary and the second is when the government says the district court the statutes and regulations control that's in mind you and i believe in the district court if they can have no backup arguments at that point i can't say you can say the statutes and regulations control your honor but if you don't think that's enough to win the case we've got we've gotten together with the very people that these folks accuse of accuse of being free speech people being able to say what they want and they've agreed that we can control their message i the question is is there such or do you face such a reparable harm at that point that the judge needs to enter a policeman arion junction and that's my problem that's the if that's how i met that's i must admit that's my major difficulty with this case the the secretary of agriculture agreed puts in front of the court something that says whatever they're accusing us of doing put aside the control issue i understand that but and the message will pre approve every message why do you face under those circumstances such a reparable harm that that a federal program which extends beyond your state must be enjoined but the injunction would only is actually only for montana but the thankfully there's no national injunction in this case as we often see but again we face an irreparable harm because our constitutional right is to have actual democratic means to control and speak against council and this but he did say absent the controllers but i believe that part of the part of the control is the approval process so that's that's got to be the critical hard you think it's the absence of control recent twenty even the government doesn't believe the emily use and forcible so it may go on forever but the government doesn't actually think that it's going to enforce this imo you know and so it's not an actual form of control i also editor this case that courts case in barmes that kind of voluntary sensation requires an injunction from the courts would you end up getting is the court entering an injunction saying the m o you need to be enforced when the proper course of the course under these under this court's doctrine is that the statutes and regulations should be in place and that's because you want to have democratic accountability for this you want the entire public to be aware of how they can hold and who they can hold accountable for the speech that's not true with an m o y letter and the idea that the government doesn't think that the m o u is in forcible the twenty a j letter that point to submitted refers to a recent d o j memorandum that applies to guidance documents and their use in affirmative civil enforcement proceedings and m o u is not a generally applicable guidance document it's an agreement with a specific party so it doesn't it's not within the scope of a memorandum and even going beyond that this is not an affirmative civil enforcement proceeding this is one where the government is the defendant the memo to the memorandum specifically refers to relying on a generally plausible guidance document in like a false claims act action where the united states is suing on behalf of the united states that's clearly not a political here so i just want to respond to that i'm happy to answer any other questions the court may have and if not i would just urge the court to consider both the government speech argument as well as the absence of any compulsion here which is again the source of any first and violation thank you thank you thank you for your argument works good both of you very good all right we will them submit this case one seven three fires six mine