standards issue denials and then forced them to appeal without revealing what criteria standards the procedures used to determine eligibility the first issue i plan to address is one of first impression whether this court can review  tammany do you simply isn't a discretionary function exception case in the court of the opinion that was signed by three judges record has reached a holding about the scope of the federal tort claims act not about the discretionary function exception do you disagree with the government there are categories of policy statements and administrative manuals addressed by other know there's a case in which somebody was told that their filing was in the wrong spot so they lost the opportunity to preserve a claim and we said women you never published were the right spot was so that's not fair adversely affected refers to a penalty and the right procedure here because plaintiffs haven't had a chance to prove that there is the fact is for them to obtain the access to the administrative records of that they can show what secret rules were written but that's in the context of a statute where the benefits are wholly discretionary right we're just talking about eligibility criteria so to use that statute as the predicate for  a state created property right seems pretty unlikely well and we haven't argued that there's a stick needed property right here but we are arguing is that it's rudimentary that discretion is the ultimate decision over whether to and you know the list goes on of cases that is that we have discretion over the final decision you don't necessarily have discretion over how to get there and very importantly we're not talking about a situation where there is lettering discretion over who gets benefits yes complaint the relief the foyer related relief you seek all seems much more tied up in the stafford act claims you won an injunction that prevents fema from using unpublished rules to decide disaster applications in order re manning applications so i'm not sure you've articulated the pure for your claim that you seem to want to be pressing now  the most you're entitle to is to have the agency publish everything that falls in the category of interpretive rules as opposed to other policy statements written in history to manuals pace is for ordering release of documents or publication of documents but as a predicate for imposing procedural requirements on adjudication zone or other statutes that in addition you know we read the stafford act ought to go the purpose is to provide the purpose of the provisions that we're looking at here is to provide eligibility standards standards for determining eligibility criteria standards procedures in other words to constrain the discretion of the emergency to give notice so that these these applications can be determined in an equitable way and so that people can have fair appeals yes there's a discretionary function exception in the sachar act but there are also these mandatory what this is about this is about people having to issue published binding rules that contain an identifiable standard for how determined eligibility and that is what the district that's what this court want line of cases beginning with  requires rules to be promulgated but it is also very open ended in terms of the necessary content of the rules the principal provision you cite just says shall issue regulations to carry out the act in court and include criteria standards and procedures for determining eligibility agency's done you have ten criteria oceania cases what those cases is that when when when congress has said put forth the standard put forth criteria for the procedure for doing x it requires an agency to put forth an identifiable standard and that me do not have that here what the district court found it with humor has argued is that what this act what the regulations do is significantly nero the group of people who may be eligible for rules for which seems like they are rules regarding  carriers to meet safety fitness requirements and even had to find the word adequate just like human lives and definitions here the court will look closely at those regulations and said no there's no identifiable standard here that's the same thing  where the court where the easy of in order to establish a standard his reporting methodology and what it had done was establish a benchmark from which and this is the worth of the court but it was establish a benchmark from which the agency freely  and the court said a nine non binding rule is no rule at all well that's exactly what we have here all of the rules that judge katz referred to are rules that the female may grant relief in in this that only in the following circumstances may grant re in that circumstance in other words it doesn't constrain the well it doesn't compel the word of relief in any particular case but it constrains the circumstances in which relief would be permissible  requiring a an elaborate code of regulations that will specify in each circumstance who does or doesn't get relief does or doesn't look in the context of a satchel that creates no entitlements and is designed to govern by definition emergency circumstances where the agency is getting flooded with hundreds of thousands of applications legal theory on the stafford act points is that any set of regulations that doesn't obviously dictate outcomes that can be determined in advance just from reading the regulations doesn't go far enough every every case looks at it different sajid and so they all have to be read differently in american trucking the court what did the statue the same subject that had been an issue an seems to be left to the agency's discretion but but what we don't have is is an identifiable standard we just have a narrow we don't have anything here for determining eligibility it's just saying those people if there's considerable these potential overlap between the things governed by two and the types of documents governed by one and you don't discuss how that line is which i which sound different from rules the rules of general like ability as authorized by law and statements of general policy or interpretations of general public ability formulated and adopted by the agency every leading one i really want however you want to characterize peculiar result the way it would be used if you have the quote criteria you were then be able to live again goes according to the application of those criteria is that correct broadcasting because in that case the individual was not allowed to file for a license because they filed the wrong spot the rancher was wait a minute the there's nothing in the regulations that said it were the right spot was so that right on administrative record and show how we were adversely affected by having access to the rules because the rules that water in your house is an evidence of the root problem and i just presented evidence of water in the house thinking i was sure you had a root problem so there are lots of ways we could have been  we've taken your credit thank you agree and i just want to think a couple more things if you if the court were to find that there was some identifiable standard in the regulations that really wouldn't end the in a way that no if i was its purpose and that's really the situation we've got here you know it was ordered to put in place a criteria standards and procedures for determining eligibility applicable procedures and it hasn't done that in some  oh all of the twenty one of us who looks through them what this is is a straight out ministry of procedure complaint saying the decision in these cases was not reasonable in some of the cases almost all in all cases appeals were taken and some of the cases the appeals were denied in some cases even now the word was increased where the water would on the floor is you know for itself you know the reason to think that they are is an image that makes the house uninhabitable the  that in order to appeal it is necessary to know what those criteria are so that they could challenge either the facts in a particular case or the reasonableness of register and policy and interpretations which fall into eight two and therefore don't need to be published in the federal register it's just odd because the words seem to describe highly overlapping categories and yet the fact that the first category has to be published in the second category doesn't suggest that there's zero overlap the i don't think you i mean and i think the sending applications to get his her you know would be a classic example like there is something that should have been published because if you can't comply with this  years and years of discovery at the end of which this record looking at all the things to the council mausers that they got them that this court should consider went through and one by one said no they didn't mean to be publish evidently follows from the register tort to see how that could be a problem but let's look at the way that the district court to write that because this is the kind of thing the plaintiffs are hawking that it goes through and says look at that look i've got evidence that there were power point presentations to inspectors that said things like this is what you look for you know this is how the district court put together the quote secret law he said sure have been published in the federal we disagreed with you with respect to the way it still fit well th idea that i don't want to put words in your mouth but as as i understand your theory on this fewer for your claim you are argument is that to the order is publication of those documents in the federal register home court can certainly order public it we have no objection home to publishing anything we think that i mean there's tons of particular storm what sort of is already over but it doesn't do the sanction this is except you could call it a sanction of things not being able to be used against you was an even one provision says things somewhere else it was applied against you it's very specific it's more than v ruiz which bears no resemblance whatsoever because his case in that that is this is a very limited  affected with respect to filing your appeal but to know what the dives documents are policies whatever rules so therefore they should be  closed now there's a separate question as to whether they could use those documents once they're the sloes as trying to reopen or to use those claims and they could on administrative leave but there is no showing that they would have any right to judicial review on that we've just been i think if if one were to accept all whole series of things quick what is being done here is the five fifty two way is being used as a means of getting exactly the kind of review that you would not have otherwise because the idea what they want but somehow that suppose we agree with you that the discretionary function provision precludes judicial review right and so they can never come into court on on remain and they can never go back to court on the stafford act claim and say look here's here's the secret law that is inconsistent with the agency decision so we want we want to remain  on on the merits determination and so is it now shift back to the foyer piece of the case and the statute requires an adverse impact  is it enough for them to say the adverse impact is it if i get this admission all guidance documents whatever it is i can go back to the the term nation about the should have been published in the federal register because the supreme court said it was a substantive rule subject to millicent comment about which means we're going to be eligible for benefits you could or you are you objecting to the adverse effect his remarks we explain why because we think that for this to have any meaning i mean if somebody can come in and go there's a secret law if i knew about it it might no one is alleging anything like this and we've been through this in the fema riemannian it's unbelievably costly and time consuming and nothing comes of that this really is a very very serious matter i mean this is where are you saying that there is no indication in the documents filed by the plain of that any individual is an adverse we affected by not knowing what the law is in their answer impossible for us to know to make that determination until we see that i think that's really the crime five fifty two way it's have to go to maybe god humans that are firstly affected me and therefore  they basically boil down to questions of habitability and what caused the damage and there's lots of fights like that in with you object of the publication of the of all of your gods documents we publish almost all of it i am sure you don't object no we do not object to there's nothing to that so assuming we agree with you on the staff of that and you agree with play them on the on her secondary i meant not so there's no dispute between the really serious is for this court to accept the proposition that it should order their children to believe it's actually requested by point of says on page three two hundred thirty three that's really serious the plaintiffs comes in and says in a in a complete a four year complaint gee i think there must be some secret law and i can't i can't tell you what it is but i'm million investigations and they need some guidance of how to proceed they don't bind at the agency to anything you just say go ahead and look follow your report you tell us somebody can the do with the fact that damage is not like the sort of replacement damage it's damage like you did to make your house habitable and so you know like with people well ok now like you said earlier you had no objection to the stove or of these so called politicians or rules you know that no i mean it would be nice to have it for your request so we know exactly what's being requested but we can get that we don't have a problem with there's some exception of them who were of nobody is trying to do anything secret this is the way that in agency that has to deal with one emergency after another you mean with like hundreds of thousands or millions of coins and has to issue guidance to contractors on short notice frequently that you know compile t to go all and say it's all right you know we were everything to be real and so you know it's an extraordinary and run around like the sort of the past that they've resolve really has potentially extraordinary consequences feels like you or undercutting the bite of the discretionary function provision which under obama's hypothetical we're assuming we agree with the government's position on the rules we're talking about following are so let's assume let's assume that you lose on stafford act claims on discretionary function grounds you win your claim with regard to the discretionary function ruling so what happens and i know your position is that's always the second thing is all we should say and remain so what happens you have a way of complaint which makes an allegation that the agency has stock humans that properly fall within a wand that it is treating under a and it's doesn't specify doesn't specify which ones and i mean how it how sort of valuated does that entitle you to discovery well th dealt with is in this disaster that's a big remedy it's a big it's a big remedy because it's a it's an important problem and it's a big error to have not followed it this this natural statutorily me indicated procedures so if it is a big was this way to respond and they think that's a fantastic example for us your honor we will you call your insurance company you have your insurance contract in front of you and you are able to say here is what i'm entitle to here's why you're wrong here's why you're looking at the wrong thing this is what i mean