seated welcome everyone to the or circuit court of appeals this morning we have two very interesting cases and not first of all the voice of personal privilege on behalf of sure may please the court i am john friedman from our one quarter for the plaintiff appellants we would like to reserve seven minutes for rebuttal i will use fifteen minutes of the remaining time focusing on the administrative procedures act claims my colleague emily mr freeman can i just service a procedural question as i understand it i mean the issues in this case have been enjoying six ways from sunday right you've gotten the relief that you have asked for in various courts i think  should we move forward given what's already happened the swore so the quote the case years on a different procedural posture in the other cases the government is appealing all those cases they're there they're working their way through the  are twenty thousand documents if we understand the government's filings in the second circuit correctly that are part of the history record that haven't been producing or given that two of the three decisions on polygamy were plimer injunctions no record was ever no full record was ever produce there if the those cases are remitted will be in exactly the same position that those cases are even if those cases even if those injunctions are left we still have to go forward and those cases have to be assessed on their points i want to focus on the first is the failure of the district court to address make enter summary judgment without ascertaining whether it had the full administrative record here the proffered administrative record in this case is the record that was before the decision maker and there was a decision maker in this case and the government says this is the record that was before her there's an agency in this case that made a decision and that agency is headed by a single person that's right in discovery and all the other advice acting director do yes i am but i'm also saying that the decision maker you referring to i'm referring to an agency decision now secretary acting secretary to sign the memo but discovery and we put forward authority to the secretary not to some staffer that's down below her but it's blackletter a p a law that if the head of an agency is assisted by others in here we put forward evidence and we ask for additional evidence that individuals assisted her the record the documents considered by the agency are put should be part of the mr i but i guess the but the problem here is that the principal person who assisted or at least from your point of view is the attorney general told her that this policy was the policy was illegal what does it matter whether she acted or not with animists either that's correct or not that should be the end of the matter well that's one of our claims and i agree that if you rule for us on that claim you don't need to reach our claims  as children she could have said ok well let's go back and let's see if there's anything else we can do to provide some measure of interim relief there are a whole range of things she could've done were here on a particular administrative decision just richardson with regard to your deliberative privilege question do want to come back to that because deliberative process privilege is not absolute it's not absolute privilege we can make a showing of need the same as other types of privilege so the fact that there are documents out there that the government says cart all entirely deliberative isn't the end of the question just looking at can you keep turn for a second and talk about why we're looking at the review ability of this question at all and i obviously this is the sort of question i don't understand your argument i think to be well this is some programatic substantive decision it's not just discretionary and so therefore it's reviewable is that there's that really your argument that's one of two arguments that we're making also that that's fair and secondly the courts interpret the leading pressure on the secular beauty heckler have concluded that if the decision is based on a legal principle something that gives no that's it actually hasn't been rejected by the d c circuit if you look at the u a e versus brock case for example i think that holds odd that if the agency reasoning is based on a legal determination and if you look at the of programs that's the fifth circuit's reasoning in that in the texas litigation and ultimately your position so that i understand it is that judge smith in essence got it right in striking down docket because  predicated on legal fundamentally here because under under heckler the question is whether the there's a meaningful stand against which the court the agency action can be assessed if the legal rationale is being applied action now there are other courts that have ruled that way i think the court in brooklyn also had a similar finding so it's not just like it's not just a district court the second circuit that's right is that on appeal in the second circuit no it is it's got to be argued next month  think this all goes back to the point though that the the heckler the agency action i mean there's a presumption agency actions presumptively renewal under the a p a unless it's command agency discretion by law if you look at this court's precedent mendoza beholder or the supreme court case and mock mining all suggest that there's the presumption is that you ought to be able to review that's how every court has come down on this question just turning back  to the substance of the a p a because i think we've talked about the records so that the failure even if even without a complete record there were fundamental errors in the decision each of independent each of which independently commit is that soley committed to the attorney general so heckler points to some exceptions the question i think fun really under heckler is whether there's a standard meaningful sharon to apply many cases a criminal prosecution there's not going to be some standard that a court can look at some bad proc to describe skeeters decision to prosecute or not prosecute is not reviewable but that's exactly the example the court gives in heckler right where that where the court says maybe this is believed where the court says listen often i think this is belief often prosecutor stands up and says i would love to prosecute this guy but i can't because the law will not sustain a conviction and that is a legal conclusion the law will not sustain a conclusion that would be reviewable and yet everybody acknowledges including the court and believe that that is unreviewable and i think what heckler points though is that if in an agency decision because the agency is not functioning here as a prosecutor i'm here we're talking about recision of a program sorts  discretion i think that's fair although in my eyes with my understanding forever i thought the attorney general was the prosecutor i think that's right under the ionic although it everything in the government the very general of the being able to exercise discretion of whether to seek civil remedies in here the same idea the secretary f d a director is not a prosecutor attorney general the prosecutor so you might get a little purposes but not necessarily for civil speak about this in terms of prosecutorial discretion isn't the point of heckling the point of heckler and whether there's a meaningful standard that can be applied here every court that's looked at this question has concluded either that this doesn't fall into the realm of prosecutorial discretion because it's not fun going to further action or what happened here was not the prosecution or they've concluded that there's sufficient law that the decision here was predicated on a mistake of law which is something the court can evaluate but that this is sort of back to the a d c point right i mean in the decision there of the supreme court the grant of deferred access is the discretion of the secretary to proceed on enforcement actions or not that's right and that's why focusing on the decision here it's not whether individual get deferred action or not that is not what we're challenging we're not seeking to have any particular individual get a grant of deferred action we are challenging the agency's decision to rescind a policy based on a fundamental mistake of law we're pleased to have you here good morning your honor may i please the court my name is emily dillingham and along with my colleague mr friedman i represent the plaintiff appellants in this matter we ask this court to uphold the district court's decision with respect to two issues first the granting of summary judgment for the plaintiffs on there is stop a claim which prohibited the government from modifying its information sharing policy in connection with the rescission of the doctor program and second issuing a nationwide injunction to enforce that  where does it come from it actually your honor does come from common law this isn't a claim for equitable relief the supreme court has recognized that such claims may run against the government they found that they left the door explicitly open for that it would mean they find that or did they not decide that they left the door open this court actually has found that such a claim can run us versus cox the ninth circuit found the same in watkins vs army the supreme court left the door open for those claims that heckler and o p m versus richmond  the standard for him to stop a claim against the government requires a finding of affirmative misconduct which we believe exists here as the district court noted that the government induced these immigrants under the guise of immigration protection to turn over their most sensitive personal information that includes their past criminal records whether they have previously been placed in removal proceedings other highly sensitive information about their family members and the district court said that the use  the same information to track and remove them could constitute affirmative misconduct to judge bates and his separate opinion in this case look to a frequently asked questions portion of the government's website were the government affirmative the first is that that document is not in fact properly before this court it was not part of the i mean i take additional notice of the court certainly could take judicial notice of it i will note that that document itself is in fact internally inconsistent if you look at that document it does say the government has not changed its information policy but it also then still uses the changed information policy language it notes that again that changed in the information policy that we referred to in our complaint was that it went from your information will not be shared will be protected from disclosure to immigration enforcement agencies and you generally have been exceptions you agree that wilmont except for and it lists out at least three different exceptions i do your honor i do agree that there were exceptions in the original policy in the changed policy that noted generally we will not proactively share your information with immigration enforcement agencies and subject to the same exceptions that's correct your honor and although with again some additional exceptions those included national security which was of course not a rationale for dr rescission and a public safety exception that had not been referenced in the earlier information sharing policy and again if you turn back to the frequently asked questions document that judge bates referred to in his decision that document once again is internally inconsistent it does say that the government does represent that the policy has not changed but within that same document in fact within that same paragraph it says we will not proactively share your information so even within that document that judge bates referenced the government did in fact change its information sharing policy is it reasonable to read the language with respect to rescission superseding or that language to suggest the government could change the policy to suggest that the change could be retroactive i mean you would need to have the language prospectively because once the government changes the policy the doesn't need to say that that it might change prospectively so what's wrong with reading it that way i think what's wrong with reading it that way is that was not how it was ever presented to dock applicants to dock or recipients when it was rolled out in two thousand and twelve at the time the government was encouraging individuals who were eligible for the program to come out of the shadows to provide their information so that they could in fact receive status so that they could build their lives based on a promise from the government and to reading that policy in context individuals relied on the fact that that information was not going have said that's reasonable reliance right if there was pacific contractual language perhaps that that would be correct i think under para zimmerman you have to consider the fact that there was a course of conduct between the government and these individuals we have declarations attached to our complaint noting at least six individuals who specifically said they relied on the promise that their information would you push is whether it's reasonable right if it says hey give us this information we're not going to use it but by the way we can change that policy about using it in any time how reasonable would that reliance be i mean that's the question is i understand you may have somebody who can claim at least subjectively that they relied but how do we say that that's a reasonable reliance i think to that is when you look at the context of the full program first of all that the government was in fact sort of recruiting people to join this program and the fact that nearly eight hundred thousand people opted into this program had they believe that their information would be subject to sharing with immigration enforcement agencies for the potential to have them removed deported place and other immigration enforcement proceedings they simply would not have shared this kind of balance for them to make right i mean that to me it seems like they get to make policy or that administration would change that policy and there certainly was a rest of the information that the policy could be changed but there was never any indication that it would be changed retroactively reading it in context and again given that what the government was trying to do in recruiting people to join this program the reasonable reading of the policy is that it would be a prospect of change those are not to be a specific attempt to use the information in an individual context in order to get relief here i mean you don't have any evidence that the government has used this information in a way adverse to one of your clients not specifically we do point in our plane to six individuals who did have dhaka status who were placed into removal proceedings we don't know how that information is shared place where kind of receiving they were placing removal proceedings your honor we don't know how that information was shared but even so i don't know if it was sure we do right that's correct your honor we don't know if it was shared but do we actually need that at this point  no we don't the fact that the individuals relied on this information to their detriment there is a risk of imminent irreparable harm here we know not an article three problem that you say listen you know i don't even know if the government did what i think is wrong and i don't see how that's they have standing to make this speculative claim that maybe there's some chance that somebody might have done something that they weren't supposed to and your honor they do in fact have standing under this the susan b anthony list case there is a risk that they would be placed into removal proceedings we know that some of these doctors said well it would seem to me that that would be the opportunity to raise the challenge for well under the law under the several cases you don't actually have to have been placed in removal proceedings in order to challenge the law if the risk is imminent if there and that your you say your folks have been placed in removal proceedings not not our specific plaintiffs your honor but again some of these  people are subject to final orders of removal which means that they are subject to expedited removal we could be talking days or even hours there's simply not a chance to seek relief having to go to that step and frankly the law does not require it the law simply it's the threshold issue and because if we're correct on that it boots all their summary judgment arguments about the state of the road for we get to that and sorry to cut you off before you get to where you want to start i want you to start by answering judge diaz's first question which is  what difference does it make here why why should we make a decision given that there are conflicting decisions now across the country from discover marilyn's in conflict with all these other districts is in conflict with the ninth circuit  why is it that we should make a decision here the government doesn't think you actually need to your honor we do think that it is just suggested because there are two nationwide injunctions in place right now which protect the plaintiffs and because the court is considering at the the timing is such that it should the responses should come in and the reply should come in such that it will be considered by the court in early jane what you want to do there is when you're trying to skip the courts of appeals well no the ninth circuit already ruled so from brooklyn that's correct and so that in part of this that like i mean this is the whole part of the supreme court right day they won't lower courts to develop the law so that they have the benefit of those views in evaluating those decisions that's why generally go doesn't grant cert unless there are splits obviously there are lots of exceptions to that and while there's a split with a district court decision here there's not a split otherwise and so it seems a bit like an abdication for us to say well we're just like wait and see what happens elsewhere well your honor well you're right that the court normally waits for a split the court also dorm will grant when there's a nationwide injunction against a major national policy that's what the court did when they grant cert from the fifth circuit's decision against oppa we hope that the court will grant cert in this case if the court does great start in this case which we'll know in early to mid january just as about if you're judicial ministration i'm not sure it makes a whole lot of sense for this court to try to rush out opinion when they'll have guidance from the supreme court of course of the supreme court to nicer which would again though in the early to mid january the court is in a position to then at that point rule so if i could turn back to the review building issue i think there are two steps to the through the analysis whether something is community agency discretion by law under hitler versus cheney the first question is is this the type of issue that is committed to agency discretion and then the second is does the nature of the rationale given matter as to the first committed to the discretion of the secretary of homeland security exactly just as a line to the attorney general right just as an heckler versus cheney the f d a had in forcemeat discretion whether to bring civil actions to enforce the food and drug food drug and cosmetics act the department of homeland security is the agency that's vested with enforcement discretion about whether to remove aliens who are here on lawfully that is the form of enforcement discretion that we're talking about because doc was a form of non enforcement it was a non enforcement policy we know that yeah i guess i'm still having trouble understanding how you can have discretion in the face of a pronouncement by the attorney general that the that the program the program in this case was illegal that implies no discretion so that's exactly the same situation that was presented in hecla versus cheney itself if you look at hackler the f d a said two things one we don't have jurisdiction over in this area to even if we did have jurisdiction we would choose not to exercise it and the fact that the agency said the first thing didn't stop the court from affirming the second thing and saying that that was committed to agency discretion by law so where is the discretion exercise here what attorney general's letter she concluded that dhaka should be rescinded that does not say i think docking is a legal and i must do it it does not say because the attorney general said this i have no discretion it simply says suspicious for a number of reasons he also said and i think other courts have said as well that in making those kinds of policy considerations you have to consider the reliance interests of the parties affected which did not happen in this case so i think that's two different issues your honor again there the first question is is this the type of decision that is up a form of enforcement discretion that's committed to you can see discretion the second is doesn't matter what her rationale was the decision to receive did not enforcement policy is clearly the type of decision that is not in force is not reviewable it is a decision about whether or not to enforce the law we know from the fourth circuit's decision speed mining the decision to enforce the law just like the decision not to enforce the laws non reviewable the fact that it's a broad decision rather than an individual decision doesn't matter we know that from cheney itself because that was a question about whether to enforce the food and drug laws against the entire death penalty drug industry so this is the type of decision that light on why isn't why isn't it more than that right so i'm totally with the if if what they were doing was saying we're not going to enforce right and that's the first half of the nielsen memo and dr wright says ages don't go in force don't go remove people who meet these criteria but in the second half of the nielsen memo does something different right it says we need to develop a program and this is the program matic argument they may one might say th say that it does more than just non prosecution it's an affirmative grant to private citizens right so it's not directions to agents to not enforce is an affirmative grant to those individuals of status and i know we don't want to call it status and it's maybe not technically status but it is a a nature of being that is deferred action that is lawful presence that is well beyond just m non enforcement right and it comes with attendant benefits right so what why is it when we think about this is it really is not a discretion in the non enforcement sense it's really something more as an affirmative grant what was that encapsulate their argument why is that wrong so i think it's wrong because of the fact that it is not conferring status you are right that it is more than just an individual decision not to enforce because of the particular person but action is that is more than that is it is a formalized forbearance but that is what it is it isn't giving an individual formal notice that the government is going to forbear from removing them but it  status well it is a right that there are benefits that attach to it pursuant to preexisting regulations that were passed pursuant to notice and comment that say that if you get this form of prosecutorial discretion then pursued the these folks don't remove them period but bill stanton said no no i'm going to grant them deferred action and she does so with the knowledge that if she grants them deferred action then they get these attendant benefits in fact she begins the memo by saying listen we're mistreated lay closing folks we're exercising prosecutorial discretion already but something more is needed we need to grant them to further action while i'm going to understand why we don't link those things because she knew they were linked right there ministration in an acting daca well understood that they were linked that once they got deferred action that these attendant benefits came with it right employment so security maybe gun ownership rights all sorts of things happen at least gun possession and they knew that in making the decision and they didn't just say we're not going in force they said affirmatively we are going to grant them this category so again i think there are two steps the first is deferred action is more than just non enforcement but it is different from the other benefit you're talking about it is a formalized forbearance there's a difference between saying certain people are low priorities we're just not going to go after that versus formally telling people that we you we are not going to remove you we don't have any intention of removing you of course circumstances can change you don't have any rights we could change at all but it is a formalized forbearance removal now you are right that once you do that certain benefits could get i don't think that that changes the fact that it is a form of possible discretion if for example everyone knows that if you choose not to prosecute a drug offender and you put them into drug drug diversion program that might have very spent if it's they might get access to drug treatment programs rehabilitation programs and all the rest the fact that a prosecutor knows that in the back of their mind the fact that the prosecutor might even purposely have chosen not to prosecute someone because those benefits will kick it does not change the fact that the choice not to prosecute is a prosecutorial discretion decision there the fact that there are benefits that attach to the exercise of discretion does not change the fact that this is the exercise of prosecutorial discretion so used to drug diversion example the example i was thinking of was a deferred prosecution agreement that comes with the tendon benefits well is there reason why do something about that doesn't seem exactly analogous here why is it that you really believe that placing someone into a program in the criminal cont right seems to me fundamentally different than giving them these rights that is their right to be here legally to be employed to get social security right as as a matter of sort of principle y honor i just i don't understand how a policy of pasqual discretion could be transformed into something else merely because there is a preexisting regulation that says that people who receive profitable discretion get certain benefits that regulation has been action the work authorization takes in it doesn't change the fact that the deferred action itself is a prospect world discretion decision if the made to change the hypothetical a little bit if you had a scenario where instead of granting deferred action instead only this and said if you meet these threshold criteria we will exercise our discretion to grant you work authorization totally within the discretion of the secretary right you look at the the forty to the extent that it exists at all is sort of this negative implication of the secretary you know can view someone   maybe you might even be right that the decision about whether to grant or deny work authorization maybe it too is not reviewable but the reason this question is different is that is a very specific type of non force one that has a long tradition in history of not being reviewable in a way that i think is different from granting benefits and that's the tradition that has later relied on it was the decision about whether or not to enforce the law against someone is the sort of decision that has traditionally been non reviewable unless there is something  to this issue about the memo what decision maker is the appropriate one to consider in this case so i get the point of i don't think they can tell us that the agency could as a matter of discretion ricin daco but in this case the acting secretary relied on determination that the program was the legal not that she was exercising her discretion that i hear you say that we could consider secretary nielsen subsequent rationale is part of this record i do think you could a don't generally we aren't we generally limited to the rationale offered by the agency in the record at the time so that's right iran are but what i would say is it is well recognized that if there was a problem with the agency decision because it's not sufficiently reasoned the normal remedy in that case history meant for the to the agency to provide further explanation that is exactly the genesis of the nielsen memo is that the judge bates in the d c said that the duke memo was insufficient and and so she provided further explanation yes he also found that insufficient that is true but to be clear we think that the duke memo was actually sufficient and we think you could up hold it solely on that but if the court has concerns  was granted on the texas litigation the supreme court says hey you'll only address in the statutory argument don't forget about this constitutional argument the constitutional argument that was race below and that the supreme court order briefing on was the take care clause yes and so i want to ask this question right so if we've gone at a scenario where the tourney general is saying it's unconstitutional and it's talking about litigation and the supreme court is a den of five what the on constitutional provision is that is the take care clause right well why won't why should we be looking at whether this violates the take care clause within the judgment of the ministration in determining whether in by this i mean to take care clause right what was it that the sort of inquiry that secondary to the statutory argument that judge smith adopted there's a secondary to that that the supreme court directed to be considered and we don't know because it was a four for and but the fact that they directed the parties to address it suggests at least that it was part of that litigation and something that at least some members of the supreme court believed was was necessary in fact is it fo members because they added the question at least four members needed to vote to add that question to the grant your honor i don't play the court needs to reach the take care issues of this case for two reasons first of all the question here is whether we were entitle rescind i get i get that but what i'm saying is posit that we're sort of past you know your initial hurdles and we're now in a world of trying to evaluate whether as a matter of law the the decision was correct and you know assuming it actually says it's unlawful instead of i think as you correctly indicate says it's likely unlawful and maybe unlawful but if we're in that world why aren't we evaluating whether valleys that take care clause and then i'll add this so you can answer it in total is recognizing to take care clause may have some just disability problems of judicial standards washington would be deferring to the executives interpretation of that constitutional provision under their own authority and indeed obligation to interpret the constitution in your honor we think that it violates the statute so i say under principles of concert voice i don't think the court needs to reach any sort of take care issues only reject that if the court rejects the argument that it's a violation of the statute but up nevertheless thinks it might be a violation of the constitution i suppose the court at that point would that be entitled to consider that question i don't think either side has briefed the question there but if i could turn back to just one last point on review believe before i turn to the merits of the a p a claim i do think it's very important that the their entire argument for why right your honor because the key point is the point from b l e b a l e makes clear that if a decision is of the type that is not reviewable the rationale given doesn't matter even if the rationale given is a legal one and for prosecutor says i not going to prosecute this case because i don't think the law allows it that is still non reviewable that's what billy squarely says it doesn't matter that he's saying about a prosecutor that works for the attorney general united states there's no  relied on the analogy to criminal prosecution believe by the way was also an agency case b l t was an agency case about whether to reconsider and in the context of an agency case the supreme court analogize to a criminal case brock i urge the court to look at proc proxies exactly what we have said brock says that the decision not to enforce is not reviewable even when it's given for legal reasons what brock then goes on to say is maybe you can review the underlying rationale on its own terms but you cannot set aside the enforcement decision brock's supports us urge the court as he said to go look at it or argue that case and gone text of the appeal you're taking from judge  should consider the nielsen sort of supplementation if you would it help me sort of understand that a little bit because in other places you seem to be suggesting that you know we shouldn't be doing discovery here because we're bound to the record that was considered the decision maker yet here you're saying yeah but you also consider the nielsen minimal element to stand what was the basis for doing that so i'll say two things the first is we don't think you need to consider the nielsen memo we think the duke memo by itself is sufficient if the court disagree we don't need to consider do not need to sufficient because it also is a matter of discretion interest because it doesn't matter whether it is or not we think that the both your honor both we think that whether it said it was purely illegal or because it said i'm exercising my discretion not to do it because either it's illegal or at least it's likely illegal all of that is both don reviewable and not arbitrary and capricious but if the court disagrees with any of that we do think that in those circumstances it's appropriate to look to the nielson memo because the normal remedy for an arbitrary and capricious agency action is to remain to the agency to provide further explanation that's exactly what the opinion the first one he says i recognize the presumption against review ability of agency decisions committed to the agency's discretion but then he says under the d c circuit precedent of course the d c circuit deals with these kinds of issues all the time he says and enforcement decision is exempt from the presumption of review ability if it is expressed as a general enforcement policy and it relies solely on the agency's view of what the law requires what is that what about that if you look at brock brock says the enforcement decision itself not reviewable even if it rests on the legal rationale what it then says is the legal rationale itself sometimes reviewable you can review it basically as an interpret that happened to be embedded in an enforcement dishes what they're basically saying is it's the flip side of b l e just like a non reviewable decision doesn't become reviewable because you give a legal reason so to and circumstances in which we will say we will extract out of it in foresman decision what is essentially an interpretive role rule and review of that but what crowley did not say in this is the key for this case is it didn't say you could review the underlying government agency denied the waiver but he denied the waiver on the ground that there was no competition at all the third party then came in and said no no no we are in competition so they were challenging the underlying legal substantive rule they weren't challenging the enforcements question the design of the waiver they were happy about that's not the waiver i just think that judge breaches misread how crowley operate this is the underlying substantive rule here the attorney general's decision that the statute is unlawful right and that is not something that they had that's just unfortunate discretion right whether or not you can have deferred action is not a question about their substantive rights it is not a question of for example whether they are removable it is not a question like in the f context and heckler of whether something was cut prohibited drug it is only a question about whether we have the authority to have an unfortunate policy it is not in for some discretion all the way down and that's why they can't get operating procedures may be different but the part in the moments phase it's designed to not be a general enforcement policy right instead designed to be individualized for each applicant there's an evaluation of that particular person right and that strikes me is why this is not going to dhaka should not be viewed as a general enforcement policy is because it requires for each person what your background how long have you been here how old are you specific determinations are you a risk those specific determinations is strikes me or individualized in fact sort of designed to be sold by the  that regardless of the misreading that also suggest that the doctor itself is not a generalized him or some policy is actually individualized enforcement policy no your honor i don't think whether something is given drug the entire issue in that case was was the f d a going to enforce the food and drug laws it gets the entire death penalty drug industry this is very clear from the opinion if you look at the relief that the plaintiffs were seeking it's very clear if you look at the d c circuit decision that was reversed in the corner if you especially for the forty five of that opinion that was the exact argument that the circuit made was this is a categorical decision we should review it because it's not individualized foresman and the supreme court reversed and recognized it does not matter whether an agency chooses to exercise and for some discretion on a one off basis or a categorical basis it is still enforcement discretion and it's still not reviewable now all that being said enforcement discretion that is of course reviewable that is why for example the fifth circuit could review because the plaintiffs in that case said in the fifth circuit held that dapo was illegal under the i a e a no one is making that claim here no one is making the claim that the rescission of daca violated the irony that's why our claim is not reviewable but the claim in the fifth circuit was that is also why we are right that  like did exceed the constraints on the agency's discretion partly for the reason you're saying that it was so broad and so categorical that it can't be viewed as a permissible exercise of enforcement discretion given the comprehensive irony scheme and the decision of congress repeatedly to use to provide that sort of relief but that is a question about why it is substantively impermissible as it in for some discretion policy it is not an argument that it does not and for some discretion policy let alone that that that claims foreclosed by the supreme court's decision in a d c because the a supreme court in a d c made clear that as a general matter you can't challenge immigration enforcement decisions on the basis of selective prosecution which is essentially what they're dies because a a d c involved a claim that the government had discriminated against the individual elites who are being removed on the basis of their first amendment speech protected activities it was undisputed in that case that challenge immigration enforcement decisions there's not like some special rule for equal protection claims as opposed to the first meant there's not some rank ordering of the bill of rights that says that it's a ok for the government to discriminate on the basis of speech but not ok to do it on the basis of race with the point of a d c is immigration enforcement decisions are not subject to these sort of selective prosecution claims because they give rise they interfere with profitable discretion and because they create  serious risk of delay even if you set aside eighty see we still don't think that they have a viable option claim i think the most important thing to focus on is all of those statements you just referenced not a single one of them is from the person who actually made the decision in this case acting secretary do they don't have a shred of evidence not a word of anything that she said that it could be suggested it indicates animas it is a remarkable thing for them to try to impute to a cabinet secretary racial animus based on the statements of third parties they don't have a case that's ever dotted party being the president if he works for and least some of the statements are from the present i even on the statements for the president i don't think it's proper to impute to her invidious racial animus based on statements he made in unrelated context but even as to the presidential statements i don't think that even those are sufficient those statements if you read them do not they express the president's views that we have a problem with illegal immigration he expressed the president's views that some illegal immigrant said the law is that we have a problem with illegal immigration he said that a lot of the well there are problems with illegal immigrants including crime he does not say that all illegal immigrants are he doesn't say anything about about the race of the immigrants he references the fact that people from mexico nationality is different from race for especially for the federal government the federal government routinely regulates on the basis of nationality it can't be an equal protection violation for the government to draw lines on the basis of nationality if you look at those statements in the hole in context and with the presumption of regularity that the president the united states why specifically cited was an equal protection case and it was an equal protection case involving an alien's who were already in this country so that's their primary distinction about aliens abroad versus aliens here doesn't hold up the supreme court made clear in trump that the standard that it was applying applies in a different way of across a different range of contacts and a different range of constitutional claims and we think it does appropriately apply here by committee i know so fairly over my time but if i can make two additional points one on their summary judgment issue and one on the stoffel on the summary judgment what i think the most important point to focus on on that is the point that judge richardson made at the outset deliberative materials are just not properly saying that we are asserting deliberative process privilege what we are saying is that the liberty of materials are not in the record in the first place if you look at the comprehensive community case that we cited in our brief it says that courts have consistently recognized this i urge the court to look at the cases they cited in that opinion they cited to primarily the m fact case in the toughest case those cases might sound familiar because of the same cases they cite in their briefs those cases all recognize that deliberative materials just are not part of the record in the first place we don't have to log them they don't belong in the in the record to begin with because deliberative materials are just not part of the record just like when this court reviews the district court judgment  record that comes up on appeal to include the bench memo a clerk wrote to the district court judge so to no one expects a memo that the chief of staff wrote to the cabinet secretary about his legal analysis to go into the record that is simply explain why they think that the record is deficient here given the nature of the decision that was made that was based on the will decisions and legal rationales one would not expect there to be lots of other materials other than deliberate materials the agency has certified that the record is complete there is a presumption of regularity that attach to that certification and they haven't rebutted it if i could turn to the stop of playing briefly i think most of these points were hit during the argument but i'd just like to take them off the first is the court supreme court has never recognized an affirmative of stoppel claim against the government moreover the supreme court hasn't prohibited it as well i think it is fairly in the teeth of the court's decisions in cases like alexander percent of all that recognize that courts shouldn't be implying cause of action let alone imply a cause of action against the federal government but if you set aside that the second point is they've never recognized in the stop a claim against the government period not even in the defens about which of two different components of the federal government was going to pay for a psychiatric exam whether was going to be d o j or whether it was going to be the federal public defender and it was in that context that the court said well look d o j passed it had a guide guideline we're going to continue to enforce the guideline the federal government can work it out it's it out amongst themselves if they want to do it differently i think that's hardly support for the notion that a private party can come in and seek a stop against the government the supreme court has said and again that it is never ever recognize such a claim while it is left open the a window it is never actually done it but if you were going to do it you would have the minimum need to have affirmative misconduct as all the cases recognize and here they can't assert affirmative misconduct for two reasons the first reason is the policy itself makes crystal clear it can be changed i would urge the court to look it's j one thousand four is it one thousand and four is the page in the jail that has the instructions for applying for dhaka that is where each and every doc applicant when they request to dhaka that contains the information sharing policy and right underneath where it says the information sharing policy it says it can be modified or changed at any time and as a judge he has noted at any time doesn't make any sense if it's only talking prospect of lee you wouldn't tell me to tell someone who's signing a form hey by the way we change this any time if you're talking about other people the only reason you say at any time on a form someone is signing to tell them that going forward this policy could be changed and that is for exactly the reason judge richardson said we weren't  bind ourselves for ever having this policy at that point people can make a decision we told them that our present policy was that we weren't going to share except with certain exceptions we could change that and people made a decision based on that the last thing i'll say is that actually hasn't been a change in policy and they haven't identified anything that actually does change the policy all they have said is that f a q but the policy as you understand that is that would allow for retroactive rescission of any information sharing limitations right and so i said again so there's been a change in policy but your view of the policy is that the information sharing program could be rescinded supersede retroactively so that's correct in that sense that doesn't really help them very well yes they lose for multiple reasons but yet they lose because we could change at any time on the face of the policy that they originally had so they can't claim affirmative misconduct because the government put everyone on full notice that the policy jimmy had been these children there were two or three years old or a load of i'm sorry but children this is a children's policy here's a and all these young children are on full notice of what your go assurance doesn't help them i agree i think we can win this claim for multiple reasons there's no no further misconduct because we could change it any time there's also no affirmative misconduct because we in fact have not changed it either one of those is a sufficient independent reason for us to win it and that i just point out why there hasn't been any change they haven't identified any actual instance where someone said we're going to start sharing information where we didn't before well of course they say don't have to wait for that so what's your response to that well they have to at least allege that the policy has changed they can't say we think it might change we're worried it might change as judge richard said i don't even think they have article three standing to sue if they're just saying we're worried that something might happen and they haven't actually alleged any credible basis to say that the policy has changed all they've pointed out is that in one f a q the there were a couple adverbs out and they added the word generally and they added the word proactively that doesn't say we're going to start sharing information and certain other special nonproductive situations it just said that we generally won't do it proactively they don't have any evidence that it's actually been the change and the department has made clear in subsequent notices that there has been no change if there are no other questions  would prefer a different topic i'd like to start with the issue of review ability the government relies primarily and almost exclusively on the heckler versus cheney decision that decision simply does not apply here agree that post recession nothing in the recession memo requires any agent to go take any affirmative action to remove any individual it does not require any individual action that is correct but it is a decision it is the opposite of a decision not to enforce it it is is it a decision that dhaka as it exists the government believes that it is illegal and unconstitutional and that it cannot go forward with that decision and as they as they go for so grant parole to grant all sorts of different discretionary relief right all correct and once again i think we need to take this in context the government is moving as quickly as possible on this once again it has filed search petitions before some of the appellate courts have even ruled here we have every indication that the government intends to move forward with enforcement proceedings should it prevail on this issue but again cheney does not apply here because the cheney only applies to decisions not to enforce that it only says the decisions not to enforce their own review of will in fact footnote for the government relies on heavily leaves explicitly leaves open whether a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction is reviewable and it expressly states that what it does say right is it says what's reviewable like to the extent of this review will about an act an affirmative act is that that action provides a focus for review right so that means if you remove so madi then that's the review that is had not of the policy or decision to enforce or not in force is a general matter but the specific action the specific in force moment or not enforcement decision we disagree with that position as we believe that doc itself and the precision of doc is a policy change and overall policy change that involves not just an enforcement that's correct but i'd like to focus on what judge bates said about the agency's discretion with respect to rescinding daca judge bates actually means opinion two things that i think are critical critical to this court's understanding judge that official cannot claim that the law ties her hands while at the same time denying the court's power to unbind her so acting secretary duke rescinded this policy on the basis of the government's believe that it was illegal and unconstitutional and that alone is grounds to make the policy itself if the attorney general came out and said i would love to prosecute defendant x but i cannot prosecute him because the first amendment and principles is to ensure interpretation and me that is a matter of law i can't convict him it is your position that that would be a review old bold decision it is not because that would be a decision not to enforce and not to prosecute so that does the whole distinct so is always you're giving if you give a legal reason so in other words the legal reason only matters in the negative under under actually versus cheney yes in fact that's act that's correct and if i could turn back to judge judge bates what he said  was in this context when unfortunate policy is predicated on the agency's view of what the law requires the agency action is not non reviewable in the first place it is based entirely on the interpretation of the statute and if you look to then acting secretary duke's memo or her reason for rescinding daca was based entirely on her interpretation that d h s did not have discretion to continue the docket program but when she actually says that it should be mean that we explain to the are suggestive not of a requirement of a certain action but the availability of a certain action and we disagree with that position our reading of the acting secretary duke's memo is that the government in referencing th don't see is where you see that in the memo because it says should be in like in taking in consideration all these things including the reference to the you know the take care clause argument that the supreme court order taking into account this litigation it's clear to me that it should be not that it must be but it should be rescinded therefore inserting the priorities of the department i rescind it and i would argue that the word should there should not be read as maybe i have discretion to do so that was a it should and must be remanded or must be rescinded that is simply that's the end result of the attorney general's the terminations that the policies tweeting that is our reading of the letter as well and that is consistent with what attorney general sessions said in his letters well that it is illegal that it's unconstitutional again we disagree with that position we certainly don't concede that but that that was the government's entitled to consider the memo i don't believe so it's not part of the joint appendix it's not properly before this court but even if this court did decide to consider it i don't think it changes anything again the nielson memo essentially focuses on two things one  the government's view that doco was illegal and unconstitutional and then a post hoc rationale of litigation risk that we don't think is well explained and again simply no more than a post hoc rationale the government also makes a half hearted attempt i suppose to argue that a t c precludes the government clues the court from reviewing here and we disagree with that a t c applies to individual eyes enforcement decisions that simply not the case here position that doc itself is not individualized now again your honor we agree that that dockery doc itself did involve individualized determinations of whether someone was eligible for status but what your claim is of the removal of that the rescission of that was not individualized correct that the policy change as a whole did not involve any individual life decisions and therefore a t c simply does not apply here if you want to say about  issue yes your honor absolutely wild no we don't have any statements from acting secretary duke or self again we believe the administrators record is incomplete and we were not entitled to any discovery we don't frankly know who actually directed that this policy be rescinded while it was acting secretary duke who issued the memo we know that attorney general the law actually required the secretary to do it correct your honor but she does also work for the president she isn't and she was an employee of the executive branch and we don't know who to made some determinations behind the scenes we believe we're entitled to additional discovery on that especially given her reliance on attorney general sessions and his letter and some of the statements of animists that he made we know that there are thousands of other documents out there and we fully anticipate that some of those documents demonstrate animists as well if there are no further questions i'll conclude thank you very much thank you honors that will come down and greet council