will you be the only one speaking i will good morning please the court my name is margaret quokka and i'm appearing on behalf of plaintiff appellants and with the court's permission i would like to reserve two minutes for a bottle thank you we are here today asking this court to recognize that broad remedial provision authorizes injunctions to order agencies to publicly post records as the statute requires by contrast the district court's decision threatens to effectively delete agency's affirmative disclosure obligations and allows agencies to remove records from the public domain even when congress required that they be publicly available the district court central mistake was to follow crew versus department of records to databases have all previously removed documents been reposed they have not your honor those two databases no longer exist there is a new database search tool that the agency in addition to that those that have been reposed that are not reposed in the same form as they had been before and so the government has made no argument and this case certainly has not moved as a result of that injury did the animal organizations actually did they suffer and is their organ injury the same as the claims under both the four a p a your honor the injury here is is two fold and i think this is an important component of this case is that the plaintiffs here have alleged injury that results not just from the lack of their own individual access or private access to these records but also an injury that results from the lack of a public access to these records  the agency to post any certain information he didn't send a request he didn't ask that it be posted so i think my colleague's questions pretty important where is your injury yes your honor so let me let me take that second part first about sending in a request so the government has kind of insisted on the one hand that exhaustion of some variety is required to enforce the agency's affirmative obligations under fire but on the other hand at the administrative level has taken the position that there basically is no procedure to exhaust remedies so during the pendency of the litigation in the district court when the district court in a preliminary ruling suggested that exhaustion might be required the plaintiff here in an abundance of caution did submit a request asking the agency to meet its obligations and in response to that request  the the agency actually took the position that there was no way no way to to ask for that particular remedy and in fact the letter that the agency responded with said that it has determined that this submission is not a proper request under fire and perhaps because it became clear that there was a futility of exhaustion at the district court level the district court never made a final ruling on exhaustion and i think that if this so the injury here i think which does not say i was a member of your lies when we look at the cases that she suggested those cases deal with the standing in the injury occurred when the agency didn't post the information  the people requesting it wanted them to post it here nobody's requested anything it's just a simple as i understand it the simple idea that under b your supposed to make certain information available for public purchase and electronic format is there and when it isn't i'm injured i didn't find any case to suggest there's any standing in that kind of a situation so your honor this complaint in this case has gone through detailed allegations that have demonstrated plaintive standing and injury as a result of lack of access to these records it includes allegations and in fact later submitted declarations by each of plaintiff organizations detailing how they use these records on a nearly daily basis and the resources and expenditures of personnel time and money that they will have to go through in order to request these records under a different provision of foyer in lieu of accessing them through the database things anyway they want i think posted that you can tell so you can download it to wri want everything posted so it can be downloaded right and you don't want to have to go to for your honor the statute requires that these be posted in an electronic format the downloading mechanism what we have here i did find a case which would suggest that under the second provision of five fifty two a second provision to that one could have standing simply because one is relying on somebody on the government putting something on a particular electronic media so you're on to the injury to the organization's resources has been recognized as adequate for standing under havens realty and here the government has not even made an argument that there's a lack of standing of course that hasn't been briefed before this court as a have undertaken various initiatives where they've advocated for legal requirements including for example local ordinances that depend on access to these databases that have been published for upwards of a decade and so for example the companion animal protection society has advocated for the passing of ordinances that require pet shops to post certain records that used to be on affirmatively disclosed in these databases also  goes to the crux of the case which is that the judicial preview review provision under extremely broad so it grants district courts the authority to enjoin the agency from withholding agency records and contrary to the district courts conclusion that grant of authority is not limited by the subsequent clause also granting the power to order the production of any agency records improperly withheld by the complainant if that second clause did limit the first a much more broad injunctive power that beginning phrase would be statutory surplusage which is the foundational problem that neither crude nor kennicott before it actually addressed but instead the supreme court has described how we should treat the statutory phrase that has one broad clause paired with a much more specific one seemingly encompassed within it in order to give both of them a fact the specific law should be understood to clarify but not to limit the broader clause so the power to order production of records improperly withheld from the complain may be contained within the more general injunctive power but it can be given effect by understanding it to clarify what might have been otherwise unclear the argument that the agencies removal of the databases was arbitra capricious your honor the agency issued an actual statement about its final decision to remove these databases from the website and that statement cited three reasons why the agency was taking concerns from their same permission in their and salute and increasing concern and you know i mean as he had one of those situations i'm sure you probably weren't happy with the reading room but then when they took it down you you realized  would be much more happy if it went back up right i can't speak to the happiness of the higher reading room situation but i can say probably right now that if i don't like i can a lot of times we get situations where people really aren't ever happy but then they get they realize they're less happy with what the government comes out i think we're timely there's two things your honor one is that first the agency always had redacted for privacy concerns in the past for the entire history of these databases the records that were posted were in fact redacted under b six and b seven  the privacy exemptions under fire and the second thing to that point your honor is that here the agency itself had made past representations about its decision to post these databases as a way of meeting its reading room obligations and so certainly your honest questions go to the merits of an e p a claim that we were never able to develop a factual record below because the district court dismissed that claim on the theory that there was an adequate alternative remedy under foil and to that point i'll  say there's some there's a there's i think a bit of an argument the government makes where it tries to have its cake and eat it too saying there is no real remedy for an affirmative disclosure violation under fire and yet provides an adequate alternative precluding a p a review suggest that you have some ability to bring forth an argument here under for you but even if we can't which i think is what frankly we're struggling with kennecott you know you talk robert the crew case i think got to this same provision same situation and they said we don't think we have any for a power because of copper and it seems to me then your argument is if we don't have the power under then we at least have it under the a p a so send it back and let us as i understand your argument let us produce what we need to for our a p a claim is that what you're arguing your hon way your honor then i think the alternative under the a p a is that if provides no relief for an affirmative just closure obligation violation that is then the a p a does there being no adequate alternative remedy here under took a final agency action to remove two databases it had published for upwards of ten years from its website and issued a statement explaining its reasons therefore and that action the district court concluded was also  unavailable only because there was an adequate alternative remedy under fire and for the same reasons that it's not adequate as the first e p a claim it would be inadequate as to the second one as well i see i have very little time left at  you're there and this is the big question as to the second place it seems to me that most of the dark humans the agency had previously posted were not necessarily required to be posted and therefore if that then i'm trying to figure out why if an abuse of discretion to do what they did under the  if i apply chrysler versus brown yet has the same kind of situation that in the documents they posted were not necessarily required to be posted when yes your honor so first of course the plaintiffs vigorously dispute that these records are were in fact all required to be posted under two different provisions of the reading room requirements one covering frequently requested records something that the agency itself acknowledged a direct the court's attention to the accepted record at page one eighty five where the agency represents the requested records and this was an entire category  provides a right to have a right to to get records released under the act but provides no remedy when an agency necessarily removes records from the public view now to the extent that your honour's point is we're  why it was an abuse discretion what happened here if i look at chrysler re brown which had a situation where the agency posted the information on website that was not under a legal obligation to post and then the subject of that information would then were not subject to the jail so the that's right your honor so there the plaintiffs were seeking to bring an action to prevent the agency from from releasing records and the court said for simply provides no cause of action for that final agency decision a kin to hear for providing no cause of action for a decision to remove records from the public view for simply does not speak to that it speaks to an affirmative obligation to post so as opposed to the failure to act in accordance with here the agency has taken an additional final agency action to remove and change its policy of busy its disclosure of those records thank you i'll give you one minute f the documents then there's an appeals process how do you exhaust any two violation here if you're someone to violation i mean it's the same thing you send a request to the agency the statute makes clear and it's reprinted on page  and it refers specifically to any person making a request to any agency for records under paragraph one two or three of this subsection and then it says it's deemed to have exhausted administrative remedies if the agency doesn't satisfy the timing requirements so it's quite clear in the statute that congress meant for there to be an exhaustion requirement under eight to as an individual satisfy the reasonable particularity requirement that you have to do on a case if you're trying to challenge to i mean right they only have to respond to you only have to the government agencies only have to respond if the documents are described with reasonable particularity but a two by definition sounds like it's a really broad and the government has an obligation to put stuff out there and how is the party going to do that well we're narrowly you can describe i mean there's not an issue here i mean the issue here is they didn't exhaust at all but ordinarily in the d c circuit has talked about this in the this cry for me how you would draft the how you would draft and then to exhaustion argument if i mean an exhaustion if there are particular records that you want you can describe them and it's no easier or harder just use the word particular right we're talking about the that here that would describe documents you could if they were nuances to that the agency had to sort out they could sort out in the context of the administrative exhaustion requirement and that is indeed the whole point of the administrative exhaustion requirement what plaintiffs want to do here is skip all of says but i'm having a bigger time understanding why this would be futile anyway it seems to me that you said that you would not even recognize a request under a two for publication as a proper kind of request a few responses to that first of all what we said was after they filed their lawsuit then the agency took a position in federal district court and then the district judge agreed with us and then they turned around and went back to the agency that's not how exhaustion works you're supposed to go to the agency first thing i am sure would have been different if i just started a different on you know you said to the district court we wouldn't think this was a proper crime to request anyway it seems to me to be futile that segues nicely to my second answer your honor which is the agency took a position in response to the request and then they had an appeal right which they decided not to exercise and the point the point is the way that exhaustion works is you go to the agency you say here's what i think you need to do the agency says we do or we don't gives its reasons the agency said a lot of other things in there too about the types of records that were at issue and why they weren't subject to a two and if you think that that's wrong then you appeal and then if the agency either doesn't act on your appeal in a timely way that's set out precisely in the statute or if the agency disagrees with you you go to district court and then the district court reviews the case on the record established before the agency on all of the legal and factual issues that are raised that's the way for a litigation work my worry is here if i argue failure to exhaust here first of all if it isn't something that i really have to look at because it doesn't have anything to do with my jurisdiction i could go ahead with it whether they do it or not but secondly if i want to make this an easy idea and i want to make this such that it would be easier for the district court to determine and me to determine on appeal i would say well let's send this be up here arguing that's a problem your honor that argument would work any time you went to the agency and the agency said no the point the futility cases that they cite in their reply brief are cases where there is some long there's some preexisting agency policy that makes clear that you're going to lose and then you go to the agency in the agency is just going to cite the policy and say we've already decided this question there's no point to any further airing out in the agency proceedings if you look at the cases they cite some of which didn't even find that it was futile but the test that they set out is that test and here what happened is they went to district court not having exhausted at all then the district court said the relief that you're seeking isn't available and you have to exhaust and then they said ok now we'll try to exhaust we'll file a well we'll file something with the agency then the agency said no and they say well the agency said no so it's futile and if you could do it that way then you could do it that way every single time really saying and i'm making sure that i checked you all you're really saying to me is if you don't exhaust in the first place and you say to the complainant we're going to because you didn't exhaust that the agency will say no we're not going to do anything on that and then you're out of court what happened here was the court was trying to make it such that the agency had a right and chance to explain to them what they were doing and explain why and explain what the basis was and here the agency wouldn't even do that well and she said this is just not even a proper kind i mean if you look at what the agency said your honor i think you'll see that the agency said a lot more than that if you just cited for me because i think you've got a bigger issues than that especially since i can review this whether you exhaust or not i mean that seems a little uneasy to me your honor if you look at x years of records three twenty three twenty one it's the agency's response it describes why the records requested are on three twenty one it describes why the records requested are not final rick final opinion and explains why they shouldn't be for they aren't frequently requested records those are issues that should be aired out before the agency before you get to federal district court to then it seems to me we get in this case is the same point we got it that the other circuit got in crude and the other circuit seemed after they got it crew to this point say that they were bound by can a cut utah copper and therefore there was no way to proceed under a two i'm not bound by can akad utah copper has nothing to do with me so i guess i'm at the same point and i'm saying to myself why then under five fifty five to a four b don't i have the right and the power to force the agency to make this information available under florida your honor there's a number of provisions in the foyer that make clear the way this is supposed to work i'll start again on with a six c which is on page eighty six of our  denim it makes clear that you're supposed to exhaust your remedies and not talk of exhausts i know but but it makes clear that an even under a two you're supposed to go through the agency process then it says upon any determination by an agency to comply with a request for records the record shall be made promptly available to such person making such request so it's clear that what the agency is considering is whether to give the documents to the requester and then what the what the national review provision review of the agency's action so it's clear if you just walk through the steps here that the way it works is that a request or can ask for documents the point of the foyer is that people who want the documents can get them and then this foyer provide any administrative remedy for the public at large admit i mean the public at large can make requests i don't think that provides a remedy for people to seek records that they don't themselves want but they think somebody else might want it's not terribly surprising that the court wouldn't do that it would raise a lot of the standing issues that were aired earlier in my colleague's argument and kennicott also pointed out that the provisions  requiring affirmative disclosure the specified what the remedies were going to be for those it said you can't rely on a document to the detriment of a party appearing before the agency unless you disclosed it and and so if you haven't put it in the federal register or you haven't put it in the reading room that's a powerful incentive the d c circuit quite rightly said for the agency to do that and that's how they wanted those provisions to be enforced now subsequent to those provisions they added the provisions saying frequently requested records should also be put on line and they didn't at that point amend one of the agencies decided to permanently take something down from the reading room what would be the remedy then well a person could could still request it and if the person was entitle to it under the the person could with the person get it or to go back on the reading room i mean i think that would depend on the circumstances our point here is simply that the order that a court would issue would simply be to go to to give it to the person and and so the statutory here we're talking about the reading room putting it on the website and you keep focusing on the individual in the complaint and i think what i'm trying to figure out is how do you enforce the reading room provision because the way i see your argument it's almost makes an unenforceable well i mean congress the question is whether congress wanted to create a judicial remedy that would allow a person who him or herself got the records to then try to make sure that everybody else could get their records and there's another of reasons text to that i've discussed and also historically the congress would have wanted to do that but i'm not sure that that's exactly what we have here there are three different ways you can go on for one is they have the duty to publish certain kinds on the register the second is that they have to put them on this electronic format and the third as do with what a person can do second has nothing to do with what a person does that that's correct with regard to the agency's obligations in the first instance your honor but with respect to the remedial scheme it's quite clear in a number of places they refer to requests made under each of those provisions i'll be fair with you your argument which you made which is that they have no way to do this under for ya then i don't know why they accepting for purposes of present discussion that we're correct that congress declines to pry provide this type of remedy is what i'm ok if you're just not sure i'm accepting it but if i follow your argument right that's what i was careful to say for present purposes your honor if you accept for present purposes that that's the congress declined to do it in the foyer then then the the idea that you could you could say ok well congress when addressed the question specifically of when individuals could get information from the government that they thought they were entitled to congress address that issue an extensive remedial scheme both administrative and judicial review congress determined not to provide that remedy and then you turn around and you say but never mind because we can just go to the a p a not remedy because you're saying they cannot ever force is under the under for under eight under the second provision well what they can do is get the records and what they have is it information of an injury in the circles back to scan standing discussion from earlier that isn't the purpose of the reading room provision to provide access to categories the records are that we without requiring individuals to to make for your requests i mean that's why i pushed you to the very beginning because i can't i'm trying to understand what the purpose of a two is and how it messes with the exhaustion requirement and filing for your requests you know there are multiple parts of a two and they have slightly different purposes the three that were an acted initially the ones about the federal register and you know things of that nature those the point of those was so that if people were going to appear before the agency they had access to the materials that would govern those things and therefore specifically addressed how that would be enforced which was that the agency was prohibited from allying on them in that context now the last provision was added subsequently in one thousand nine hundred six and and the reason that was added was simply to streamline the process for people making for a request and this was clear from the legislative history what was going on was they said look if agencies are spending lots of time over and over processing the same records instead if they just release those records then everyone can get their for our request answered faster so this isn't so much we want to make this publicly available they didn't alter the remedial provisions at that time they didn't say and we want to make a remedy because we want these to be available to the public at large the point of that provision was just so that people could get records more quickly if they requested them and take those out of the pot of people the things that people have to request you do not have to create a judicial remedy for that in order to accomplish that congressional purpose and congress did not create such a remedy and it would be extraordinary to say that when congress has set out an ad nistrative review scheme with exhaustion with requirements for how you specify the wreckers with agency review and judicial review that you could then just turn around and go to the a p a and say well even though congress didn't give it to me in the foyer i want to through the a thank you your honor i would like to just quickly address two things since i have very little time the first is the government's argument that somehow this specific remedy about notice could possibly provide a general broad remedial scheme that congress invision for aid to violations the simply can't be true it's not just the frequently requested records provision that would be kind of unaddressed by that type of remedy even as to orders or policy statements this remedy could only ever come into play where it's the agency seeks to use it against a party so that means if the agency created secret law that relieved a restriction or was treated the public more leniently but did so in secret in violation of foyer there would never be this type of remedy that would ever come into play the second thing i'll say very briefly is that as to exhaustion the government's representation that this was somehow a preliminary or or tentative policy statement that they don't accept a two requests to see my time is expired it kicked can't be squared with their categorical statement and also their responses in other cases a record that we could develop more fully if this court conclude