power congress must make is sufficiently specific statement the statute at issue here section one hundred and fourteen are does not contain any specific language permitting the government to override ordinary discovery practice and procedure and civil litigation yet that is precisely what the government did in the underlying litigation in the eastern district of virginia in this case in response to petitioners request for production the government defendants why isn't the discoverability issues something that should be resolved in virginia regardless of whether it's s s i or not so given that it's s s i shouldn't you go back there were genuine and say this is discoverable or under section five twenty five dollars there's another procedure where you can become a covered person and why is that why is why are we taking that into account why are we not just reviewing whether it's assess whether it was a proper that were the final agency action here is the designation of the information as s s i and just standing alone that question and that's what we're supposed to review whether it's whether that was decision that decision was consistent with the statute in the rags and i mean whether it's discoverable now or not seems to be a separate issue right so it's not it's not not necessarily a question of whether the information is discoverable your honor but rather that this court's power is that it has the power to set aside the final orders on the grounds articulated in the a p a and so our challenge is essentially at the doctrine of inescapably and jurisdictional matters that would that would delineate quicker or the issue stays with the circuit court or whether it is in fact appropriate only for the district court to resolve your honor i am not sure that i've had a chance to review that if you specifically  did the was there capacity to issue the orders and in light of that then questions that are ancillary to that might require a court to look at a different arena or to expand it in ministry to record in which we are limited would then be the province of the district is that am i incorrect no your hon and i think this does go to the agency's capacity to issue these final borders petitioner's argument is essentially that the t s a did not have the capacity to do so that there was no authority for the t s a to issue these final orders to to designate materials as s s i in the course of civil discovery trial is that is that i guess what i'm trying to understand is what is the no of the issue before us is the issue that exit central question are they only s s i once they're designated or weren't they s s i and somebody said ok confirming they were but under the reg they were s s i right whether the whether the t s a says so or not that exist why would that provide a mechanism for you to move let's say that we agree that this was s s i or we uphold the decision can you not go back to virginia and say i just i want to be a covered verse and i want to have access to the documents i mean doesn't that provision only make sense if it's happening during a discovery context yes your honor got permission was and acted to give civil against the opportunity to access track procedure effectively as i think your honour's are recognizing making an interlocutory appeal of a discovery order to an entirely different circuit that that is is not the system that we think congress intended here well if it's not interrupt so why can't we if we say look if we don't we review the t s a we have no reason to question it it's s s i then you go back to the district court and say well they can't do this in the what would we be deciding if if the decision was that the t s a operated within its authority to declare something s s i that does not  bless its decision to do it so light so if our decision is yes we recognize because our authority is limited we recognize that you have the capacity to do that yes now you go back down to the district court who knows what's going on she was in charge of discovery and you say yes they could have done that yes the circuit courts told us that but they couldn't do it when they did it because that steps on your records you have the right to make that discovery determination and i didn't do it properly so what would prevent you from raising but to the district court and the district court being in the proper position to agree or disagree with you at your honour's i recognize my my time is going to go ahead and so so it's just not clear that the district court would have jurisdiction to is our own jurisdiction that we have to have it so i'm not trying to teach on the hot spot we're just trying to understand i think the real concern here is your sense that the district court may not do it and and that would be extremely problematic if we said no we're not going to take it up because we're not supposed to and then the district court said i can't take it so part of the issue before us would be whether it were covered by other privileges and i'm curious as to why that doesn't move the entire question at this point i don't have you appeal that ruling to the as part of the as part of the appeal of the four circuit as protective issue but i don't think that that would apply here however miss of course has a heavy burden for the government to be able to show that this is is moot and we would see that those interim advance the upholding of those privileges do not finally end irrevocably eradicate the harm caused by the us aside as a nation because the litigation in the th circuit remains live and i apologize because i'm over time and it's a bit of a  be evidentiary privileges in january of last year that part of the reason why he did not grant the motion in sr speaker was because he was prepared to rule on the merits of the issues in final order it's just an interlocutory d or it's just the interim discovery order why can't they file and motion to compel or do or bring the issue up again or try to the relevance of the material in the st instance the district court reviewed all of the information at issue in this case ex parte and then camera and after conducting that would you determine that the documents were not relevant to the merits of  only i don't believe so your honor that this was in response to three motions to compel and during involving those motions the district court determined that their lying information was not relevant to petition issues are right for adjudication without the need to disclose to the scientists the sought after information there's no indication the district court determined that that information even relevant to the plaintiff's claims in that case so even if the information amiss and it seems to me that your opponent is right it's a pretty heavy burden to say that it's basically you can't get anywhere near and it's hard for me to see how a discovery order i designation could be could be an issue i mean you know many cases a miss is them i suppose an appellate procedure question but what do we mean do they have to file a protective cross appeal i mean i know there's a law out there that says that you documents saying that d they were actually covered by these privileges or if you file a protective order how did the how was the discovery just be adjudicated with regard to the actual privileges my understanding  to either of those explanations and i'm struggling with the fact though because if if the summary judgment or reversed and the case came back down then the whole package is open again and and and there can be challenges on any of the decisions that the court made along but what i don't think if if one day one summary judgment and that was reversed then there is some sort it can come right back up at trial and the court can change its not like that's that's part of it's grant it's right to control the litigation so what couldn't something like that happen in the court see any i don't know of anything that would make that the court would then say oh so sorry i've already ruled on that were done the court can cite i've already ruled on it wants and that's why i'm going to rule again but that's different from saying i don't have the capacity to take it back  you to row that you were wrong on something preliminarily so well written the question comes back to what happens if the case is tried and i don't know of anything that would prevent them from signing your honor i want you to look again at this request for it and they end your simple response to that always is well done i'll send it back to t s a will declare it s s i and you know get it so i think that that's a problem that there is there is perhaps a  conflict between the judge's ability to resolve discovery issues and the claims that you're making to congress to provide separate avenues for jurisdictional questions to be very addressed and separate courts government petitioners country understanding how that information works in the government and how it's really just defies common sense and also where it's working knowledge i think the classified information for example regularly the government operates in classified information and memos and e mail forms and it's not necessarily marked with a classification simple that is it's not branded at the time it's created as being secret on top secret or otherwise year it is making it available to the public in general but what we're talking about is the capacity of a u s district judge to determine timing and discovery age sex not at all it was enjoy a boy is just an open door to anybody who wants to know it but a district judge could say i'm going to let your attorney see it and i'm going to place it under this confidentiality requirement you know w of those orders three to three of which are here are determining that certain information one sensitive security information that is the place to be that is the scope of this court's review petitioners have attempted to block in this case we have no reason to question the t s a as a nation can they go back under a five hundred and twenty five day or some other mechanism to the district court and say despite that it's still discoverable do they still have that argument if if there's a that case would have seen access under section five hundred and twenty five dollars d and multiple times did plaintiff counsel just refused to do that and actually conceded that they had no intention of seeking that so the litigation strategy jurisdiction is limited to saying whether t s a is within its capacity in designation that doesn't tell us whether they did it timely in violation of some other rule or in violation of the capacity of the court to come via so if our jurisdiction is limited that way then it seems to me that we are on the signed page that we would think that all way he can say is that the t s a had the power to do what it did but when we go back dale the distorter or assuming it went that day out in the district court agree with with the idea that if we exercised our jurisdiction to say the t s a has the right to designate s s i and then it went back down to the district court came back from the th circuit and there was going to be a trial then and the district court would have the capacity to determine the subsidiary question that was beyond our the authority to designate as much of it but that's not a question of whether they did it at the right time we have the underlying authority question the district court has the capacity to look beyond that specific  and look at all the issues that would be involved in a trial credit but the question of whether t s a did it quote the right time i it's the wrong question to ask because it's not as if information when it is answer the question of whether just the abstract question of whether in the context of civil discovery in response to a document requests the government can refer something to the and forty five dollars and the each of those cases each of those courts decided in a petition for view and here that it was resolving effectively a discovery dispute and because  been involved and i and the th circuit totally but i'm confused don't you want us to resolve the timing issue to sue so we did it in our view of this is it's not a  that the congress authorized the t s a to promulgated regulations governing non disclosure that is not our argument our argument that you want to go beyond the face of the final orders and say whether the a has authority to designate a something as s s while a litigation is going both of you are saying you you want to get to that question right and i guess we're know we might have been we might have been out of luck on that front so that's the that's one practical reason but the nd reason is because we simply don't believe that the government has the power to use section one for our in this way it's not a grant of statutory privilege and it doesn't it just doesn't permit the executive to essentially say oh well now i'd like to remove this discovery dispute from the purview of the trial court and just say these things are s s i and designate them when they hadn't already been designated in the st place and you know i don't understand this you're they've got thousands and thousands of pages of documents and it's likely that they will never come up in litigation but you're saying that they have to designate all of those they go along and then that way in litigation they're protected rather than just dealing with it as it comes up i don't know why it wouldn't be more efficient to do the latter especially when five hundred and twenty five d exists so you can get it right so we do not say that they have to designate them a lot and we say that that the t s a fields these requests in the context of play in the context of other requests for  so designations sometimes have already happen and sometimes have not already happened five hundred and twenty five d provides access to information that has already been marked as as i already been designated as s s i and civil litigation one  mean they shall prescribe regs to prevent the disclosure d and then they would have to say including in civil discovery and how many other situations would it have to cover why is i mean it just seems like it's really broad and the text of it is broadly there's shall prevent it from being disclosed is that why is that not enough the text is not shall prevent it from being disclosed it shall promulgated regulations and that is exactly what justice roberts would matter with how much i guess in this context would be for example language in the baldrige case the census act statute where that statute expressly prohibits i disclosure of information and it doesn't where congress has used phrases like these particular documents shall be immune from a legal process or judicial process those are statements that evinced this clear congressional intent those are specific statements that  congress intended to allow for a privilege or to otherwise attend the or around that the normal rules of discovery and evidence but without a specific statement like that this very court in bankers trust