morning good morning your honor your honour's is this court has said the federal advisory committee act was enacted to open to public scrutiny the manner in which government agencies obtain advice from private individuals the question at the heart of this case is whether the f a a and the drone advisory committee can avoid the public scrutiny required by the faca simply by relying on advisory subcommittees to develop policy recommendations subcommittees that in this case were created managed and used by f a a administrator obligated to disclose subgroup records the subcommittees in this case also independently qualify as advisory committees rd the direct personal and sustained role of f a a administrators in the management and proceedings of the decks of groups these government says in their brief that page thirty one to the extent that any records of these subgroups were made available to the back or prepared for that those are disclosable they can see that because it's falls within the plain language of the statute and they say that those records have been produced and they cite to  the final order ha forty one and then i think i read your reply for you as agreeing that any such records have been produced am i correct  subgroups and the subcommittee they are using that term to describe only the parent committee so it is true that it's for the purpose of my question yes your honor the parent committee that your own advisory committee any records that were made available to that parent committee or prepared for that parent committee by any of the subgroups have those been produced to yes your honor those are the records that were produced below ok so so that's that's not at issue it's anything in the subgroups in the records in the groups that were not made available to the parent language being prepared for by yes your honor i think it again it comes back to a difference in understanding about what the committee is this is the committee simply the parent that distinction because a geisha is a whole public meetings and the obligation to make records available are legal consequences that flow from being an advisory committee and the question of who is an advisory committee is answered by the definitional provision in section two either of committee is an advisory committee or not and if they are they have relying on the obligations of the dac the parent organization of the act the parent committee to disclose its records and our our point of stuff but that category of records includes the records of it some parts we're not talking about obligations that are specific to subcommittees but what the statute reflects is that if if the subcommittee meets that definition a language of a committee  revised some recommendations from the decks of groups but this argument fails in two ways st it does not matter that in the government's view of the facts of ethics complaints are susceptible to an alternate interpretation of the motion to dismiss stage epic need only stating a plausible clearly sad that a test is whether or not the advice flows directly from the subgroup to the government and it is and that's no disputed here on the face of the organic documents the advice can flow that way and i don't think you're making an argument that they're violating their own charter because f a a administrator is the head of the agency and the deputy administrator were serving as the designated federal officer as they were present in the meetings of sub groups and subcommittees and they were present at the meetings of the parent committee in all those contexts the subcommittee and sub groups were developing recommendations and advice and delivering before they had been filtered by the publicly accountable parent committee so rather than the president had established a task forces and it was also undisputed at least in the district court that the task forces did not directly advise the president here by contrast if i said we plausibly allege that the f a a both established and utilized and was advised by the subgroups i think it's the sort of but the distinction is clear if you consider and younger coalition so had the president or the chief of staff in that case served as the designated federal officer and sat in on the meetings of the task forces i expect the court would have had no trouble deciding that the president or the chief of staff were directly advised by the task forces and that's really the scenario here except that it's the administrator a deputy administrator of the f a a who's sitting in the most meetings and one final point i understand your argument correctly is that i guess in the context of arguing that the f a a utilized some groups directly or centrally saying officer of the federal government and that was always an officer of the federal government and so in that sense the recommendations were flowing to an officer of the federal government within the meaning of your argument we would we don't go so far as to argue that that simple appointment if it doesn't get a federal officer means that advice is flowing but we think on the facts of this case because that doesn't need a federal officer among the forty thousand employees of the f a a the agency chose two people in particular the deputy administrator and later the administrator to serve as the designated federal officer that sat in  a board member of a parent corporation sat on the board of a subsidiary corporation we wouldn't say that when he was wearing his second had he was acting for the parent and use that as a justification for breaching out of corporate formality it seems perfectly perfectly sensible that and of course the agency wants someone who has supervisory authority or subject on which the advisory committee is providing advice to be involved in the advisory committee or be involved in the su to an intermediate agency employee the committee management officer that's that's the typical configuration here we have the f a a selecting again the head of the agency to sit in on those meetings to be the person that personally manages the subcommittee and the sub group process and i think it's distinguishable from a situation you're describing with two different corporations because the drone advisory committee is is a committee that the f a a set up to obtain advice for its policy understand that but what you're saying is that that person can wear two hats one being the recipient of the advice as the agency nothing but the same person can serve those two roles for saying that if they do and this is the only by the way only taste that we are aware of for that was that was true but if the same person does serve in both roles that converts what would otherwise be a subcommittee into a committee because that candid advice development advice and delivery of advice and so forth is happening in the physical presence of the head of the agency so they are pretty to all of what goes on in those good morning and may it please the court of use on behalf of the government the federal advisory committee does not give the plaintiffs what it seeks here the subsidiary staffing groups at issue were not advisory committees in their own right and thus there is no right to access records made available to or prepared for by those entities nor did the back of require treating these records counter factually as if they had actually been prepared for the turn advisory committee when they were not i don't have an interest in giving a lengthy opening statement but i'm very happy to take whatever questions the court might have i thought i might jump develop can we just start with the point that your friend just made which at least a somewhat distinctive factor tending to support treating the advice treating advice in some sense is flowing from the subgroup to the agency directly i'm happy to address that your honor and the bottom line is that that makes no difference here factually i just want to point out that the person we're talking about the designated federal officer was the deputy administrator that person mr l l was later elevated to acting administrator just before the final meeting of the top advisory committee talking about the appointment of the deputy administrator here to serve as that designated federal officer and the reason that person served in that role was because of the level official with a similarly broader view to to sit as it does need a federal officer in order to to offer information into these it was that was that individual an officer of the federal government yes i think there's there's no doubt the deputy administrator is an officer of the agency the reason it makes sense to have some of that brought here is because of the wide ranging issues a is providing advice or recommendations to not just an agency of the federal government but an officer of the federal government if you place an officer of the federal government  on that subcommittee or on the advisory committee that is receiving recommendations from the sub group why isn't that plainly within the terms of the statu e your honor because there's no indication no allegation at all that this person was receiving advice in their capacity as a designated federal officer so just to drive that this doesn't need a federal officer on all meetings of the advisory committee here that's the drone advisory committee on plaintiffs i take it any subsidiary group making presentations and draft recommendations to the drone advisory committee would automatically converted into an advisory committee merely by dint of the fact of making presentations to the parent committee on which this federal officer but of course there will always be a designated federal officer the language ary again here we're talking about wide ranging important issues are saying that if there's anything wrong with you doing it counsel i guess the question is if the agency does that proceeds in that fashion then there's consequences and one of the consequences then is that subgroup of the advisory committee is going to be treated as an advisory committee as well why isn't that the correct way to reap the statu well i think it goes back to what i believe judge cassis was mentioning with my friend on the other side which is this idea that anyone whether a senior officer or a lower level doesn't it a federal officer could wear two hats in this in this capacity you could in that role conceive yourself as receiving advice and bring it back to the agency or you could conceive of yourself as merely serving as the d f l the person who's going to answer any questions that use advisors might have and guide the process but not be receiving advice and here i think it bears pointing out that all of the allegations about the mere presence of this person asked the meetings which are on advisory committee that's at page fifty  joint appendix and there's no allegation that this person was receiving that advice in draft form taking it as it is taking it back to the agency making decisions on the basis of that advice and then running a sham process by which they sort of waited for the trying to advise the committee to say whatever it was going to say but meanwhile intending to ignore all of that because the person thinks i've already received the advice i set out to receive all of the allegations or subsidiary groups as if they were recommendations again all that's all it has to plaintiff's own complaint their argument turns on this notion that the mere presence of this person could be deemed as contrary to the presumption of sorry it's it's but it's a little too facile to say that situation we have here with a federal officer embedded in the subcommittee right because if you're if you're focused on the office or on the advisory committee that person is scatting from the subgroups only information but the subgroups pass up to the advisory committee at which point all of those records become advisory committee records but if you're focused on the agency official and vetted in sub groups right that person is privy to all of the deliberations and documents and everything else that make it up to the advisory committee so there will always be a d f a at these meetings of a subsidiary staffing groups and so all of the arguments we just went through with regards to the presence of this officer at the meetings of  officer for what's called the next gen advisory committee and the reason he served in that role there was also because of the wide ranging issues that are implicated there and that's a salutary practice i mean it would be quite a difficult thing for the subsidiary groups if they were charged with thinking through blue sky issues related to nearly all of the lines of business but when they had questions that they wanted to ask the agency they could only go to a lower lower level employees with a more siloed view and had no opportunity to go to a more senior person and also the statute makes no distinction between whether that doesn't need a federal officer senior or junior and nor does the presumption of regularity get turned on its head when the person at issue is a higher level officer again you'd presume consistent with that presumption that someone like the deputy administrator would you know when capable of wearing two ha appellant's argument to make sense being the statute just says look if if if an officer of the federal government is giving advice for recommendations from a group then that's an advisory committee and if that's a sub group this also reporting to a parent group then maybe those that advice and those recommendations get changed by the parent group  those amended recommendations get sent on to the agency but that doesn't mean that the officer didn't also receive advice from the subgroup in maybe the office or like the subgroups by spencer in the modified version that the officer received from the parent group or maybe she won't but she's getting advice from bo doesn't implicate the presumption of regularity at all i actually think it does for that argument to work i think we would need to understand the subsidiary groups as offering advice to the officer as if it's good but finally you should do this but in fact what we know from all of the allegations all the documents attached to the complaint is that the subsidiary groups were engaged i think you would have to imagine some kind of situation in which contrary to all of that in these subsidiary groups what actually happened was that the members of the subsidiary groups offered direct final advice to the officer who took it as bass instead of offering raft preliminary thoughts to the committee with the officer understanding as much and i think that's just crucial here we're talking about is mere presen a location where the raft recommendations are being made for some other entity and that there's no allegation just a quickly wrap up as no out there's no plausible allegation that the officer here different question which is your argument seems to what is the textual hook only concerned about advice that flows directly that would seem to be a gloss on the word utilized right to the only person that utilize the only entity that's utilizing advice is an entity one step off the chain of command from the entity that's giving me the price that i think the go ahead i think the the text i would focus on would be the portion of section three paragraph two the talks about how the entity established or utilized must be done quote in the interest of obtaining advice or recommendations for one or more agencies or office doesn't say for the advisory committee i think that's where the directness requirement comes from that's the text the district court focused on an anti hunger coalition and again this court expressly approve of the reasoning of the district courts  understanding seems to me a perfectly plausible with regard to the verb utilized but maybe not with regard to the verb established where i mean there just be a fact question of who established the committee and it's perfectly possible that the agency itself would establish subcommittees on the facts of this record that might well be what happened at to be the organic document say that the subcommittee adjunctive adak is present tense a subcommittee i don't know how on on a motion to dismiss we could say well no the fat organic document doesn't mean what it seems to say which is that both the committee and the subcommittee have been established through or at least page thirty of the joint appendix and that's because there's just a separate requirement about providing advice to the agency or providing advice to the advisory committee and that separate requirements is is where plaintiff's case right i think that's what national entity hunger coalition holds it's held on the basis that this advice is being provided to an advisory committee and not to someone else that's the distinct requirement we're talking about here i think this court the subgroups not that made it necessary to include the f a a administrator as the designated federal officer we have no quarrel with that our point is simply that if that individual is in the room as this unfiltered advice is being developed  point was that the formal charter and the rules that are cited by opposing counsel in their briefs are not dispositive of what actually happened here and i think we have identified multiple circumstances in which the f a a administrator