case number one thousand asked fifty to eighty five stand up for california at all a balance versus united states department of the interior at all miss mclean for the a balance mister joe for the apple east department of interior at all mis eat this case involves trust decision that was made by an i don't rise federal official without meaningful public review for indians that are ineligible for transplants hours or the inauguration out but in fact the succeeding administration certainly indicated that it had no problem with that i appreciate the issue of whether whether it's ratified or not but a trump administration including i secretary to the extent that he could try to retroactively ratify this so this is not in tone anyway this is not a case of what administration slipping something in as it's leaving isn't that right well no i and your honor i guess i would disagree that it was a case where when ministration was trying to get something and without having gone through it it is true that the us the next administration said it was defending this so this doesn't seem like it's something that this is a dispute between ministrations maybe i'm wrong i'll ask the justice department i don't mean to suggest but it seems like they are i'm sorry i didn't mean to suggest there's a dispute between the administrations ok  my point is is that st of all with respect to those documents the february th document doesn't say anything about ratifying the principal deputies decision and i understand the words ratifying and i didn't mean there has been no administrative record produced for anything that occurred after january one thousand so that really goes to this question of finale versus availability of administrative for their minister of action well yes department's position is that the regulations which only allow secretary in the assistant secretary to issue i don't trust decisions doesn't preclude  c by naming the secretary and the assistant secretary under the reasoning a kind of expressly or any of us perjury or dano prevents any other delegation that is our position in two thousand and thirteen the department revised part one hundred and fifty one trust regulations to establish that the secretary and his assistant secretary of the authority to issue final trusts decisions that's in ones that you want t international telecom and if we were to agree that this is more like international telecom than like giordano in the sense that in giordano under you know for a wiretap it's very strongly you know very narrowly controlled but but this is not it saying only or exclusively of these two offices that assuming that there is some permissible delegation then the question is was a delegation  was a legal delegation at all to the principle right so putting aside your language of the regulation putting aside that argument just for purposes of of parsing the steps the next step in their argument is that under the department menu all in the absence of the the assistant secretary the principal deputy assistant secretary can authorize delegated authority and your response to that is is that the manual is specific about when the principal deputy can exercise that authority and has in the absence of the existence secretary where did the person the positions vacant and you say those are two different things are two different things and the government responds that that argument was not that particular argument about the difference between the word absent and vacant was not raised in this record and was forfeited and i i followed that and i wonder what your best site is for where you think it was preserved well your honor we had it's i think the clearest statement of it was during oral argument it was not clear during the proceedings that the united states our argument had bogus on one of the plain meaning and that was the response of what the federal government and and to during the proceedings before the court when it became clear that there was confusion about the word vacancy versus absence with and within the department manual we right i understand that's your that's your principal argument and the the ratification by secretary connor saying oh gosh we you know we meant to say larry what's his name again rob roberts and we gave him the wrong title but we mean roberts and here's his correct title that fails to care or in your view be cause actually secretary connor memorandum is not illegal or not legally appropriate delegation under the department manuals the deputy secretary has to follow certain procedures in order to delegate if the already the secretary those procedures include publishing the delegation is apartment manual release having secretaries approval on  delegation and identifying specific story under which the delegations taking place and the conner memorandum does none of those things apart from that the kind of memorandum was issued prior to the trust decision on january th during oral argument department of justice represented had been issued earlier so there's no basis certainly to claim  ratified could be ratified the delegation as opposed to the decision which in some sense is actually stronger for them as opposed to weaker because it's saying we really mean you roberts to be empowered in this category of actions and then roberts takes an action i would say the department deputy secretaries still obligated to follow the procedures that are set forth in department in the manual now their response the tribe says and it's brief at thirty eight to thirty nine these things are these are kinds of internal paralyses that are really up to the agency and yet maybe they didn't adhere to them but there's no private action on that that doesn't it certainly doesn't render the outcome illegal in any way that violates apartment's clause or or law or regulation so you know it's just it's just not something that we as a court could pass on and your best response to that is well we would come back to the plain language  regulation of course but apart from that the delegations are important because they are a way of ensuring that the decision makers are exercising the authority in a legally appropriate way and when those delegations take place in a manner that's inconsistent with the manual the public should have no idea how they've been granted that authority from so whether that three was valid and it leaves everyone uncertain as to whether it's decision for example is fine  non final and if we had assume for example that the principle deputies decision was final but if you look at twenty five dollars stare far point two section not you point four it says that the i apartment and after the decision was issued an asked under what basis they were claiming that this decision which was signed by the principal deputy not by the assistant secretary powell that was final we received no answer they believed the decision was final are not final at that time the acting assistant secretary in there is michael black who is acting pursuant to a delegation of authority from the acting secretary assumed jurisdiction over the appeal for sciences section two dollars at which point we waited until the department alternately issued until black ultimately issue have did you do something to kind of like protect your rights in the interim or you just relied on that decision as the july th decision as kind of starting the clock as in january th bartman represented to the court that i did not know whether their decision would be forthcoming or what that decision would look like on that basis and for other reasons the land and trust him till we had the opportunity to return to court once the final decision had been made that decision was pending and the department band acquired the applies actually with respect to challenge your trust says it has six years so there wasn't a timing issue for us to go to court we had tried many inmates different ways to try to stave effect a decision as the same way that it applies to statutes right that's your st position well i think that this court's never squarely addressed the issue ringback here and that the rationale for the presumption of regularity has less force in the  statutes within the agency after any incident particularly after an agency is probably going to rule there is far less reason for that reason since you know client in this case there's no reason for that presumption to apply because the rule specifically that context no courts have applied the presumption of delegate ability to statutes even i guess without respect to whether the statute was ambiguous right the statute of courts haven't said well if the statute we think is is generally speaking clear and unambiguous  regulation because this regulation is clear another big as well when regulations specifically identify the individuals that have the authority to make certain types of situations there's no longer  the agency has already done the work for you there's no reason to acquire some sense when the agency is specific we had i'm here who is going to be response for white types of decisions applying the presumption of regularity in this context actually can undermine or negate the secretary's forty secretary goes to the rule making process and specific as he was in this particular case where the preamble to the rule makes clear  secretary can make that i'm not sure you have a standing i don't mean in the constitutional sense but the secretary here apparently doesn't agree with that point the secretary doesn't believe that the secretary has been undermined by this of course if the secretary were taking the position that the previous administration had undermined the secretary's authority or some underling in his own administration had done that there would be an argument but i don't really see that that you're in the place of claiming that that applying the presumption in this case undermines the secretary of of sectors authority when the secretary doesn't think that decisions to acquire land in trust for often what the will manchuria previously landless indian tribes in california who were unlawfully terminated f a century ago and restored to federal recognition through and some i've got to focus as my friend on the other side did largely on the delegation issues but just on a mention i think the california rancher react claim and  are barely covered by the case law from this court that particular than the north decision i think controls the case as to the california ranch reallocate at playing and i mean i think look in supreme court's decision and marsh provides the rule of reason that is flexible enough to accommodate the type of procedural out that happened here under so turning to the delegation issues the district court correctly h trying to understand your argument when you say when we try to determine whether a function is an exclusive do you mean that in the same way that federal vacancies reform disputed that this decision was made during a period where there was no body who was an acting official for the assistant secretary so that office was not occupy nevertheless the vacancies reform act permits it silent  because it centrally carves out those responsibilities that are not required by statute or regulation to be exercised by in this case the secretary or assistant secretary and only b actions well what we do here where to do the definition of secretary in the regulations of the secretary or authorized representative i think it is that identifies the secretary and the authorized representative of the secretary who have the authority to make final trust decisions why should we included thirty eight dollars included a thirty day waiting period to accommodate would ensue wanted to challenge those consistent with the government's previous position that there was no judicial review once the land was acquired in trust there was no longer any need for that thirty  waiting period so that was the motivation from getting those regulations at the same time the regulations seek to inform challengers what pass they have for administrative review and how they can get  regulations imposed expressly and exhaustion requirement so yes i would agree with my friend on the other side it's important for them to know what their administrative appeal rights and avenues are and the regulations do talk about t general outs you know decision making one by the secretary one by the assistant secretary but where there is no assistant secretary and nobody who is acting for that person think the regulation accommodates if it's real a gated further then that's construed as being read only gated to a b i a official and that's non final mean that makes all of this harmonious right office of the assistant secretary rice let me just interject there one of the things that challengers here raise is that the regulations expressly say that a principal deputies decision qua principal deputy meaning has been taken the mr loop ill will route or or the final route is that this decision was signed by roberts and doesn't say that he's that he's doing it in his role acting as the as noticed for the notice of the ability of the final yes they are mister roberts above his signature he says this notice is in the exercise of the authority delegated to the assistant secretary indian affairs by ok yep so the signature itself he says principal deputy assistant secretary but a couple sentences above that it says is in the exercise of authority delegated to this isn't secretary indian affairs by two an idea made us i understand the point about the regs pointing in different directions with the fuel regs i mean that it's a different part of the are different some part of  have them standing in the shoes of the assistant secretary and make a final decision for new agency e i a official who would be delegated  assistant secretary yes that's a good question i don't know the answer to that i believe that they could and i think the reason why is this reorganization plan number three of  by any other officer or white any agency or employee of the department of any function of the secretary i mean that's a that's maybe four uses of the term any three or four it's fairly broad fairly compassing is that the constitutional issues require some sort of supervision for a person to be an inferior officer but we didn't brief the question of whether someone temporarily exercising delegated responsibilities of an officer united's how are we supposed to see your argument as as as doing anything other than undermining the federal vacancies reform because if we basically say that pretty much any obligations of a senate confirmed official is non exclusive because the agency can read delegated and there's a presumption that they time period passed since um the agency doesn't matter the agency can still function and just make the person who who congress said couldn't be the acting official anymore but for twenty years and the office of legal counsel has to end if you do that because the vacancies reform act does not cover it defines out if you will on the non exclusive responsibilities not only ones that are not exclusive by statute but also like here are ones that are not exclusive by regulation it's simply silence simply does not restrict the government's ability to continue to perform those stories through those functions through recently so you think that the only way that something can be deemed exclusive is of congress explicitly says so or if there is a regulation it makes that clear and i think doing so explicitly would be the easiest way to do this is not the type of regulation here so the agencies the executive gets to decide when something is exclusive by how they write their regulations and they can just write the regulation to make everything that's the way you think this works they couldn't if there were a statute that made the responsibility exclusive or and to do that the statute as you know has as we know from giordano doesn't have to include express language but there does have to be a compelling purpose behind the statute to limit retaliation and while we think this regulation here i mean we think those same types of statutory principles and easily be applied to interpreting this regulation but we don't think that there is a compelling purpose behind this regulation of restricting we don't certainly it provides information about to general katz or to ordinary decision the ratification has the authority to take the act to to perform the act him herself but also that the officer at the time that the decision was made looking backwards would have had the authority to have stood in the shoes of the actual decision maker and in perform the so i would agree and i believe that i'm sorry so so so let's just take the conner memorandum so we could connor under assistant secretary for indian affairs it just says to be the secretary or the assistant secretary for indian affairs right now i understand and secretary i mean we talked about this a little bit at the beginning being defined as or other right any of robert's actions right you're not arguing that this was an actual ratification here he confirms said that looking at the memo it to seventy six  based on on record facts that we stand by during the trial proceedings that the decision being challenged here came later in the day on the same date in the cotton memorandum i would never known but for that proper  i guess i'm also trying to understand exactly the government's point of view here how are documents that you are insisting are not part of the administrative record documents that we should rely upon at all so to be clear judge hillard was correct in in identifying them as although not part of the administrative record we produced part of the record on summary judgment that was properly before the district i think you know doolan and footnote eleven rejects the argument against ratification that ratification is somehow post hoc rationalization saying that well ratification just simply cures the alleged if there's a deficiency or doesn't need to determine but it's not providing a different basis for the agency's decision which is really the point of the administrative record to avoid the types of concerns about  rationalisations so that's i realize it's a lengthy answer but i don't believe that the fact that it's not to be administrative record prevents us from relying on the document as a matter of say harmless error or curative argument documents that counsel for the other side said we're not part of the administrative record i think it's important to understand how this case developed in the district court which is that the plaintiffs moved for summary judgment on this claim of not and final decision before there was an administrative record they knew for this and said their claim did not depend on administrative records and was independent didn't need to wait for should be resolved before any administrative record was produce all three of the documents the two decisions by mister black and the decision that conner memorandum were included by the plaintiffs in the summary judgment raising they are what was before the district court judge mcfadden had to decide if this was a final decision so whether or not they were in the later produced administrative record to resolve different claims is really irrelevant to this question about whether they are properly considered on the claim for which they were submitted when the district court looked at them that secondly i heard standups council tell just pull our pillars that one of the problems is that people won't know if the decision is final if the delegation is permitted beyond the i s i that's not true for a number of reasons and i think standups own conduct here show is that they knew the decision here was was final it said on its face it was final and if a decision is not final the regulations specifies that it has to be accompanied by information about how to administratively exhaust so if that information isn't provided then the time for filing administrative appeal doesn't start running and there are certain notice provisions that's that's really what one hundred and fifty one dollars was designed to do when it was promulgated in two thousand and thirteen was provide some additional clarity to parties about these two paths for trust decisions that are in fact to seem to pass that interior uses for all of its other decisions i think that's that's critical to understand wh looking at this delegation issue but if but if if a if a decision doesn't say by the author i am signing this under authority delegated to me as the assistant secretary for indian affairs in as if i am the excess assistant secretary then how that prince of one of the principal reasons is if you look at one hundred and fifty one dollars c two i am i it includes information that has to be done for a final decision when it approves  request and that what it requires to be done is that the land is immediately quired into trust on the date on or after the decision is issued and this decision specifically directs that the land i understand that they acted as if it was final but whether you know just because a party acts as if they are complying with the law doesn't really control whether they really are if if the regulation says at the only person who can make this decision is a secretary or the assistant secretary for indian affairs and a person who makes the decision doesn't purport to the mention of a particular individual is not an exclusion of delegation to others and i would suggest that those courts and the way that they distinguish giordano is very useful for this case the other decision there is a crawford hall decision from the central district of california looking at a different some delegates than by the a s i i in which the court reaches a different conclusion about that provision but spends pages explaining why i asked that delegation here was properly done and it goes through a number of factors including this presumption that you were discussing with standups counsel and i think the presumption is is one of the factors that raise in favor here of said delegation should there be a presumption when you have a federal vacancies reform act say that that congress you know puts limitations or on the executives ability to have acting officials based on exclusive functions so we're supposed to have a a presumption that nothing that officials do do is really exclusive so your honor i want to push back on that premise of your question because what we're arguing is consistent with the way the federal vacancy reform act defines exclusive functions and there are statutes and there are regulations in which the department of the interior has made it clear that our congress or the department of interior has made clear that the delegation is not permissible the district court quoted five of them in its decision we provided a number of them in our brief government provided some others in their grief it is not it is the exception rather than the rule that delegation through an executive order specifically said south delegation to a subordinate federal official is presumptively permissible absent affirmative evidence in the original delegation of a contrary attends the only thing they've pointed to here that they say and is affirmative evidence of a contrary attend is the mentioning of the assistant secretary but that's where it matters that there are two passed there have long been to pass if you look at the preamble for when this two thousand and thirteen regulation was promulgated it explains that the whole point of this is to apply the existing regulations for all a s a and b i decisions to trust decisions and that is spelled out in twenty five dollars c f r two dollars they're taking the same rules that have always been at play for these two ads one of which is through the system secretary indian affairs office that's a secretarial office you can see if you look at the departmental manual or chart you can see that the principal deputy is the nd in command of everything that happens in that office and then you have a separate path which is through b i officials and the b i a is a separate bureau it's not run as part of the secretary's office and then there have always been these two paths the department of the interior is board of indian appeals has interpreted that authority as being assistant secretaries authority in two decisions that is that forest county pottawattamie community decision and the rama navajo chapter decision district courts have interpreted that assistant secretary authority as being standing understanding don't add that interior has had about what is del of the ball that it is consistent with several that this is like mango and ethicon and oh in identifying an individual to make clear they have a hority and help spell out that there are these to pass but not to preclude further delegation and then you have the departmental manual which since two thousand and three has made clear that the principal deputy exercises all of the authority that the assistant secretary has that's delegate will say you have all of these factors pointing in the same direction you layer on that a con or memorandum you layer on that the two decisions by mister black there is every indication  this record that it was intended by interior that this be a final decision that stand up would be able to challenge that final decision in federal court which they have in fact done that they did not need to administratively exhaust and that is you know cross all the t s and dot all the i's frankly your honor i think you can go to either the district court look to the departmental manual i think the language is clear in the departmental manual you can see it or an exercise of the power to delegate or is that just describing the power in other words don't we have to point to an exercise of the power of the power to delegate so the departmental manual your honor when you look at it specifically says that the principal deputy assistant secretary may exercise authority delegated in two thousand and nine departmental manual play one and so i think there is the language that you're looking for and it is found in the departmental manual the conner memorandum i think is an alternative way of reaching delegated to him that non exclusive duties that the department intended him to have those that is what he was exercising and i went to the department on manual was in place when this regulation was amended in two thousand and thirty nine so i think everyone's understanding from from the government if you look at court decisions you look at the board of indian appeals you look at the way the secretary addressed this in the preamble no one has ever suggested that there as a limitation in this provision on what the assistant secretary can delegate to the principal deputy in two thousand and five just to make one more point on this in two thousand and five assistant secretary asked the department of interior solicitor to identify all of the statutes and regulations that were that said fred judy's essentially what could the assistant secretary not delegate and that that memorandum from the solicitor is in the record and it did not conclude that there was any limitation on the authority and two dollars which was at the time what set out the two different paths so i think that's yet another factor that the court can l to an understanding that there is there is nothing in the purpose of tax the structure of these two paths that intends for only the assistant secretary to perform the act as the district court noted that would lead to absurd results because one of the things that the assistant secretary is required to do for the secretary is to provide notice to publish in the federal register a notice of the decision and to actually acquire the land in and there's no suggestion that really it has to be the assistant secretary who goes out and tests that but that's that's i think a straw man and i mean delegation is different then just having an agent do something for you i mean we we issue decisions in we're only we are authorized to issue decisions but we have you know a clerk's office that does it for us that doesn't mean that we delegated any authority to the clerk's office being the secretary you know the secretary does lots of saying this and this secretary has assistants acting as his or her agents to do them that's just further confirmation that here are some delegation is is permissible but london they have day to day have the the principal deputy has said authority for the time period that congress says that that person has that authority right by your honor i think there's an important nuance that maybe we're missing in our in our dialogue which is that for two hundred and ten days when someone is in an acting role they have of the authority for the exclusive and non exclusive duties all of them they can do everything one step two hundred and ten days past they can no longer do the exclusive duties and functions so there is a subset delegated that is a clear example where the presumption of delegate delegate ability would not apply because the regulation says otherwise similarly forty three dollars c f r twenty dash twenty dollars to be wined says that certain authority about guess i didn't state my question or or comment properly nothing is exclusive is this exclusive unless the agency that's that's the position right i think the strongest way for it to be clear is when the agency says it is or dano shows that there can be instances where that the court may need to resort to understanding the purpose and in order to reach that conclusion or looking to legislative history to reach that conclusion but this is not a situation where any of those factors that you're gonna court look to are applicable so although express language is one way and that the easiest way for congress or for the secretary to make it clear i think there are other ways to overcome the presumption as well none of them are met here and again this is like they may go in the ethicon endo case where the mere meaning of an official is not a sufficient basis on its own to show that there is an intent to prohibit that essential from sub delegating consistent internal sub delegation that's the line that this court has consistently drawn and internal said delegations that keep responsibility at the named official are presumptively permissible when a delegation goes outside of the kind of internal chain of command that's where this court has said that the delegations are impermissible now for example in the shah case from this court back in one thousand nine hundred and ninety eight there was a situation where the department of education tried to delegate to an outside board of trustees and what this court said was that was not permissible because it was not this kind of internal keeping accountability and responsibility with the named official this is not that case  this is a case where that sub delegation was internal it was to the nd in command it was consistent with the departmental manual it confirmed by the conner memorandum it was further confirmed by mister black in the new administration agreeing that this was intended to be a final decision citing the departmental manual to explain why mister roberts had final decision making authority because he stood in the shoes of the a s i for this particular  action and and then stand up got their appeal i mean really i think it's important to sort of step back and remember that the point here is to make sure parties have notice of how to appeal and there's no question here stand up got its appeal it got to bring its need back challenge it got to bring its yar a challenge and those challenges were resolved by the district court you got to appeal those challenges to you so so everything that that regulation was designed to the decision below all right thank you i will give them as mclean two minutes for a bottle  we believe that there is this including when a regulations very specific and who is assigned what responsibility and the consequences of those sessions the analysis of the cases do not control here i don't understand why the statute would have a presumption but a regulation wouldn't i mean i must say i think it's should be the opposite with respect to regulation there is still a secretary there are still a deputy secretary  presumably if somebody below them acts in a way that they don't want them to act they can stop them it's much harder for congress to do that so i don't see what the argument even is to suggest that the they say one about exhaustion usually appellants are up here claiming this is fine all we want to appeal we don't need to stay in the agency anymore they're not going to give us what we want and so a the now the question this is a benefit rather than a burden and i haven't heard any respect in which you've indicated it was a burden you discussed for some time the notice question but i don't see how the lack of notice if there was one injured you in any way you did what you would do if it's final well counsel for the department is and for the tribes represented that we had our administrative you know in ministry before the e a is different from you know in court and also involves stay here transferring the transfer of land chat occur while that appeal is pending ok but that time has passed i don't understand you policy makers from a policy point of view think so i don't understand how you would benefit from a internal appeal and you certainly haven't told us how i think well  issues it mattered to stand up at that time because there were state proceedings pending a california apartment a cardiac case was pending and by immediately transferring the land into trust the citizens no longer had the right to pursue the claims that they had an in state court because the state court last year six and so from their perspective it was important that if it's final decision it's going to be made to be made by a  officer if they were to make a decision so that they could continue their state proceedings while they also proceeded to appeal they need documentation if any indication and regulate in the federal this dual approach that the purpose here is to provide that opportunity rather than to just provide notice of when something is final well the regulation is very clear that only a few decisions will be handled by an assistant secretary because those decisions raise significant policy questions and require additional layers of review the purpose of regulation is wasn't simply to indicate whether it decision was finally or not it also creates other obligations for example the immediate transfer land instructs which occurred in february and also requires publication the federal register which never occurred in all the departments never actually published notice its decision for the regulations to the extent there was questionable you know of that decision so that i appreciate the general value of  publication but generally when somebody makes a complaint that it wasn't published that's for the question of whether it's final yet and whether or not they're injured by lack of notice and both of those are taken care of here well i'm not sure it would be one thing if this was a wall that's going to go out and fall you know apply to others but it's not it's a it's a decision to vidual case well i do think it's a rule that will apply to others your honor in the sense that would precipitate immediate acquisition of land in trust it be done by an official that has the authority to do it and in this case what the regulations established is that that person should be  officer the assistant secretary and it's very clear in the preamble to the rule but only a few decisions are intended to be made by the assistant secretary because those decisions are important and all others are intended to goad the ok there for the questions thank you duckie thank you very much russell's another very good argument today we appreciate it thank you