justice act encompasses he vs petitions challenging the lawfulness of a civil detention every court of appeals to consider the question directly as hell that the answer is yes the question today is whether this circuits or instead hold that a civil proceeding challenging civil detention in conjunction with civil immigration proceedings does not constitute a civil action i'd like to start if i may with the government's argument that o'brien controls the outcome in this case that's incorrect and i think the nd circuit's decision in vacuo helps explain why the nd circuit in baguio was positioned identically to the way that this court has position it was considering a prior precedent  in specifically in immigration hideous cases like the one here concluded that there was a materially different instance and not controlled by the prior decision and the same thing is true here in fact on steroids o'brien by its very terms expressly distinguished immigration hideous cases it's said that they were and i quote readily distinguishable and so it's hard for me to understand why the government believes that in this particular case o'brien nevertheless controls and we don't know what the government makes of that language understand the the argument in we can debate about whether the discussion of those two cases is really a limitation on the holding but i want to ask the sort of like maybe more fundamental question which i  accept o'brien what i'm having trouble with is understanding how all we can conclude that civil action whether it includes hippias or not turns on the underlying facts underlying fact is the detention of all of the detention criminal but that's not the nature of the action the nature of the action is that attack on it the legality of the detention of one type of the other and what i'm having trouble getting my head around is how a stance use same use of the words civil action somehow it means something different depending on what the underlying facts are as opposed that you know there's a strong argument in favor of the idea that o'brien sometimes was wrongly decided about that letter totally get that on but i can't do anything about that because i missed correct for my question absolutely and i think the grand concluded that that on its own was enough to turn it into something that we call the hybrid action that water applied here does not in any way lead to the same outcome as a crime because of course the i know i'm pretty pierced in that but my point is a more fundamental one right the worst civil ringback action means something it right and what you're trying to tell us in order to distinguish are brought on understand why you're trying to do it but you're trying to tell us that the worst civil action  something different depending on the underlying facts as opposed to the type of action and that's the challenge to understand the logic and reasoning that you want to talk about iran but the fundamental problem i've got is you've got the sa words civil action and we have can't figure out is how that should be different whatever it means how it can be different in a scenario where the  action the vehicle of course is still he vs but it isn't some some seen as an extension of the underlying criminal proceedings and therefore doesn't constitute a civil action in contrast of course here the vehicle is still the same vehicle but the underlying proceedings acting as an extension of our civil proceedings and that much i think is undisputed the nd point that i'd make is that the wind that you're suggesting is the same on the not only o'brian self i think has suggested but that is central to the reasoning of the nd circuit among circuit and has been adopted in practice by every single practically every single court of appeals to look at the question and so for this court to kind of go down the road that you're suggesting would require opening a clear circuit split context of non criminal habeas petition and i think part of part of the reason the that the the why make sense is because the supreme court has been a great pains to stress over and over and over again that he is a civil  action it is as a vehicle look completely civil in nature and so i understand your concern but i think the answer is that o'brien has to be understood as a nick as a narrow exception in some signs to that overall rule the supreme court has never once held that vehicle to the underlying facts is much more her problem for the government than it is for mr obama and the reason why that's the case is because the government in its brief proposes a task that seems to rely on whether the underlying proceedings have some what they call criminal aspects man i'm not sure that helps you on this point sure but then on this specific point i mean the i think it's hard to understand how o'brien can control here at least as a matter of its holding when it binds terms distinguish and say that that's a limitation but when i read o'brien in every instance right it's said as the whole evening as he's eighty years proceeding that any limitation in the very st sentence that's what the question is about have but it did and when it chooses to dot this is a little bit of a question of the scope of the whole the question how do want to understand when they give a broad rule and even if they could have adopted maryland they didn't like the which is the government can see if it is like those other cases i think this is risky though it seems to me that you're giving away some of the language of o'brien that you could be relying on let me direct your attention it declaratory judgment takes on aspects of the underlying case the criminal fact of this case is what's controlling i'm not quoting that last part that's my paraphrase it seems t particular quote can be multiplied several times across so brian it's true that o'brien talks about he views proceedings generally but when it starts actually getting into the reasoning over and over and over again it makes clear that it's talking about criminal behavior as proceedings i mean the word criminal unique category unto itself of course that that entire reasoning doesn't apply to our case where there is nothing criminal at all about it and judge richards and i i think one of the key points here is that to the extent that  the suggestion is that o'brien's holding somehow binds this court it would be awfully strange to come to that conclusion by having to st reject o'briens reason i mean o'brien's reasoning i think for the reasons just human mentioned and as you know as we laid out in  brief is very clear and pointing out that it is strictly talking about the fact that there are underlying criminal potential that makes the heaviest vehicle into something less than or different than a civil action ok but i mean the problem is that when he talks is a broad one which is a b is action not limited to we did talks about different natures of actions in describing it and it says you know it's just human recognizes that where there's criminal it takes on some aspects of criminal and then it goes on further in that same paragraph and says when it's still it has both it's also has some group social aspect right in talking about the whatever is the tom tom decision but in the end of the day yes that's point the court's holding is not i think necessarily what the exact words that the court used i mean she just as marshall's you know famous point in cohen's versus virginia tells us the general expressions don't control in a case like this and so that holding up the ruling of the expressly set up with you know the phrase to the extent that but i think there's actually a nd arguably more important point which is that the court was saying that to the extent we have to choose between twenty one dollars size fits all rules namely that either all h proceedings count as a civil action or that none do we would favor the latter and whether or not that's right that's not the decision before this court the decision before this court is simply whether in non criminal habeas action should be treated as anything other than a civil potential loser at least from my point of view and i think you need to address is the issue of the waiver of sovereign immunity that we have to find it's got to be more than just also absence how do we find that absolutely on ice so to essentially there's two different ways to do this the supreme court has clarified in recent years that the sovereign immunity can at least as it sort of clear because there are really two different sovereign immunity canons and one of them i think remains considerably stronger than the one that that issue in this case there's still a very strong kind of clear steamroll as to whether the government has waived its sovereign immunity in the st place and we're not trying to dispute that the standard on that is any different or you know how that applies because that's not relevant here the easier by very terms waive the government's munity and i don't think anyone's view that the only issue in this case is how do we read the scope of  immunity have to be unequivocal yes right here you use that term as well yes your honor but only as to whether there is a waiver in the st place not as to the scope of the way and that's a pretty key distinction because in this case we're only talking about the latter and so you're right that the unequivocal rule does apply but not to this case because there is a waiver and no one disputes that there is a waiver and that's that's that's a fairly key point to understanding why in this particular case the can suggest that as of making sixty six when the phrase and the civil action was st inserted into that you just produce a statute that it meant anything other than that and they capacious reading that includes non criminal heaviest actions and so given that i just don't understand how this court on the phrase alone could even say that it was ambiguous and the government that heard him essentially no argument as to why it would be but again even to the extent that there might be some sort of argument there i think it would be resolved by the completely one way effect but of the  nationwide service of process is a civil action and in the court there says in essence you know a civil action does not include a hate me as action and  did not include that type of civil abs corpus action and so to the extent that we thought of brian left that door open should we read liner as closing that door and telling though that your argument is is looking at it through a kind of glasses a bifurcation i mean isn't really the question here for us to look at the statutory tacts and determine whether congress  waived immunity as to purely civil case incredulity like your entire argument is presupposing that there are just he is relying entirely on distinctions in types of he says why don't we just look at whether this pure is civil case there's nothing it and i know you're saying you've got to look at prior criminal record but people aren't treated differently dawned there are i mean in terms of detention once they're detained there so either they're civil lead to change under the immigration laws they're not criminally and so why don't we look and whether congress was unambiguous lean waving sovereign immunity in terms of surely civil cases that is where the underlying detention is immigration rather than criminal that it was him big or worse it held it was ambiguous as to criminal so i simple hybrid cases it wasn't ever talking about the case that were the underlying thing was and i don't think you really answer that your i definitely agree with you the court did discuss that but that's not all it goes as i mentioned before it also disapproved of the insoles deference to past mistakes it provides no justification for making new ones and the supreme court has repeatedly refused to extend reasoning that it disagrees with to the extent that it's no longer likable so again i think it's worth noting that it's an extremely odd position for the government to take i mean the government in the course of most of his oral argument is not really defended the underlying reason of a crime is not really argue why on criminal habeas petitions should fit within the context of any civil action instead it's mostly subtle and the supreme court there said is that is not a civil action for purposes of this statute right i mean that to me that it seems maybe even more powerful than  know brian when we sort of get to the question of is it and it certainly is only in beauty point because in slender court in terms of the legislative history and says we don't get anything much like history and we know that the phrase civil action is ambiguous just to start with what are the legislative history and concluded based on the legislative history that for that particular statute the phrase civil action did not mean compass perceive it but what he says is i just had it but meant to encompass just petitions and so i think the way it we at least read that it's needed which means that the language on its face does not and nothing in the legislative history puts it all respectfully i don't think that's clear i think the question  that justice douglas was looking for is what was congress's intent but even if you're right your honor i think all that shows is the number one a case that post dates the use of the phrase i mean civil action so therefore i don't think it affected congress understanding the s you'd found in that particular instance that the conduct of that indicators of congressional intent went one way and we're asking this court simply to look at the exact same indicators of congressional intent wasn't legislative history here in this particular case is very clear right i mean the government history we're finding this is unequivocal waiver not just legislative history your honor i think it's also purpose i think it's precedent i think it's importantly the word used the word any before the phrase civil action which was not present in the schlanger and in the relevant statute  schlanger but tell this court that the broader meaning whatever the broadest meaning of civil action is the one that congress meant to enact in egypt and so i think all that put together along with the supreme court's unbroken record of saying that proceedings  case the question is not how can we read the statute as nearly as possible the question is applying all the tools of stage to reconstruction do we have an answer or is it still ambiguous after all that and respectfully i just don't think that after applying those canons here that there's any way to come out other than to rule as every other court of appeals to answer the question has ruled that non criminal hideous actions are in fact civil actions within the meaning of that age of thank you your honor all right thank you very possible and for that we're very grateful as well so thank you very much for your professionalism and for your good attention to your respective positions on at this point in time all asked the clerk to german court