do the plaintiffs here seek judicial review under the e p a of the military's professional judgment regarding the conditions under which certain foreign nationals can access military facilities and information but a long line of cases starting at least with worth in one thousand and eleven establish the courts should not interfere with some sort of military affairs or nd guess discretionary decisions based on military expertise indeed the supreme court has instructed lower over th memo certainly so i'll start with the strength the nature of the claim this court call so i said very clearly that as a general matter a statutory claim give less weight to review than a constitutional claim so st as a general matter e p a claim of course the statutory claim and that's the claim that's before this court on the appeal of the preliminary injunction second i think if we look at the that claim it doesn't necessarily mean that the the october policy was unlawful just that the military would have to provide a better explanation so we think this is a different kind of claim in nature sufficient if the agency's path can be reasonably discerned here and i believe that it can be the record contains a number of materials that are helpful in this regard st we have the national security guidelines which establish that foreign contacts and interests and indicators of foreign allegiance may be sources of national security risks that need to be carefully  investigated nd we have a determination from the department of defense that another program which permitted the this is the mapping program which permitted the exception of a different population of foreign nationals that it presented department of defense was concerned about the screening procedures applied to help yars th we have the secretary of defense asking whether l p r is presented similar security risks of the same security screening policies that had already been applied to mammy's the requirement that they receive their military suitability and national security determinations before accession or shipment to basic training so i think that is was created after the decision was made but i think it's important to look at the context in which this arose the plaintiffs filed a motion for a preliminary injunction at that time there was no deadline for the filing of the administrative record the government provided the declaration which responded to the motion for preliminary injunction outlined the harms that would cost the government which the district recognized were appropriate to consider it also explained the policy and how it arose it although it was created after the decision and it is not the kind of post hoc rationalization that is improper rather it's an explanation of the basis of the agency's decision in a situation where the there was no deadline yet to file the administrative record and several cases that we cited indeed that the other side decided including conic not enough from this court established that agency explanations are appropriate if they these types of declarations are appropriate if they're i don't think there's any need for an administrative record at all in this matter because for two reasons this case that this claim is not subject to judicial review st we have them in these doctrine that  your you're going to mention and judge cool recognize precluded review here we also have section seven thousand and twelve of the administrative procedure act which bars review of matters that are committed to agency just  discretion and this type of discretionary policy based on military expertise where there is no statute or even regulation that prevents the agency or the d o d from acting in this manner this is precisely the type of discretionary  action based on military expertise and national security concerns that is committed to military discretion and so there's no need for any type of administrative record here and indeed this isn't the kind of thing that we  want the military to do the military should be able to exercise its professional judgment regarding appropriate measures to take to mitigate national security risks without worrying that it has provided a sufficient narrative explanation that would satisfy any particular court before which the matter was bad what causes me to believe that your position is that the military decisions are never subject to review and of course we know it would mendez says that military expertise and discretion are sensually they're covered under the task part four in particular  discouraging interference but there must be some occasions on which a line can be drawn and even yourself a moment ago in answering judge a good as question you said this is the kind of case where and but how do you explain that we're would you describe where the line is drawn when it is the kind of case on the side where discretion is appropriate or on the other side where discretion is an appropriate certainly so  the mindy's test was adopted precisely for this reason because it was difficult to know where to draw that line there was a long line as i mentioned in my opening supreme court cases a stablish judicial reluctance to interfere in military matters and mindy's was an attempt to provide a framework to guide that inquiry so we look at the rd and th factors in light of the policy considerations that  counsel against interference so the rd factor looks at the extent to which a matter would interfere with  a kind of far end of the spectrum in that regard because it's a military policy specifically addressing national security risks for factor looks at whether military discretion and expertise was involved we know from a long line of cases notably even in the supreme court that the type of predictive judgment that is needed to make national security decisions  explained that when we're looking at the rd and th factors a court is not free to substitute its judgment for the military's assessment of how important an interest is  the extent of interference if it's a matter that traditionally involves military experience judgment and expertise and if if the matter falls within that area and what the court said is line may be difficult to draw in some areas in this case we are pretty safely in an area where courts should not review just question area military decisions that the district court thought that the potential injury to the naturalization so i have a couple of responses st i think this is pretty directly answered by this court's decision and call so to which said that even the injury caused by a complete  bar on an westman would not be sufficient in these circumstances here we necessarily have a much lesser injury because there is no bar on service  for any recruit who can satisfy the substantive standards for service there is just a delay in entering the training program and i think key to assessing the scope of this delay and whether it can really be thought of as a significant injury is looking at the a playable statute the contracts that the recruits signed and prior practice u nder the prior policy only half of p r recruits actually shipped out before their background investigations were complete so there was no reasonable expectation that someone would ship out necessarily right away additionally the contracts that they signed clearly stated that they were entering what's called the delayed entry program they would be put in lawn pay status would not receive military benefits and they could be held there for up to a year and that could be extended by the relevant service statute provides that a recruit can be held in the d p for up to two years before being discharged so i think when you look at the contract  practice and the statute the plane just were on notice that they would be in this position for possibly up to two years so i don't think that this policy really inflicts any what is it that you believe is the appropriate response are you asking that we find there was an abuse of discretion or you do you believe there is some error that underlies that prevailing point for you  i'm not sure i do but i believe that there were at least two well three legal errors committed by the district court to relate to whether this case was subject to judicial review at all we have the application of the prevail this court could review as a legal matter with respect to the balance of the equities yes i do believe there was an abuse of discretion there i think given the the risk to national individuals with known foreign connections need to be investigate to have access to military facilities and information that's a very serious risk on the government side balanced against the comfort an answer mark briefly do you see a circumstance under which plaintiff's claims could survive many days but not seven two with respect to this claim no but there possibly could be other twelve that asking you to speculate and speaking about the matter before no i think both both doctrines independently bar review and that reason i ask is that if my reading of your writing is that seven  to judicial review among those decisions that involved kind of bow complicated balancing of discretionary factors within the agencies expertise another words decisions made in areas where courts have been historically reluctant to intrude that includes the military and national security so those same policies are policy considerations especially the last one in forms and mindy's as well as take up those issues in response to questions from the panel but let me try to begin by giving an overview that at least we think is relevant to this court's consideration judge tiger issued a fifty five  opinion that in our submission was extremely comprehensive and frankly very careful this is the opposite of a wild eyed opinion in which the district court judge sought to intrude upon parag it is that given to the united states military he carefully reviewed the administrative record which is the key to this entire case and the key to the entire appeal and he found no rational connection between the october th two thousand seventeen policy that was in acted and concerns that are raised for the st time in the smith declaration not in the administrative record itself could you respond to opposing counsel and through seventeen about difficulties in screening l p r yes yes thank you your honor and these are covered in our brief to let me go over them in more detail let me start if i may with the summary of the two thousand  and let me be clear with the court that the government did not submit the study itself as part of the record they submitted a summary and that's all we have in the administrative record not the study itself your honour's the study concluded that the problem was that the government was not actually doing the things that it needed to do in reviewing the factual record in order to make the assessments that were covered by the background investigations and the remedy that the policy imposes for that administrative failure by the government is to find on a class wide basis that l p r's must wait the completion of their background investigations and it stays the policy says that it's about process efficiency in information sharing period full stop and what it then goes on to detail are the following problems one the d o d consolidated adjudication facility did not review tear three investigations and instead issued a no determination made finding thereby risking the derogatory information in an individual's file would not be acted upon to the d o d central biometric repository for terrorist data was not being systematically queried by the government as part of the fingerprint check and three d o d did not have access to l p r is green card or visa applications these are procedural issues and they're procedural problems your honour's of the government's own making and the remedy for them as judge tiger correctly pointed out is not to  honor it is a delay which has the effect which had the effect in the year after it was passed of not allowing any of the l p r to actually accede and as judge tiger found the import of that was to have a serious detrimental effect on their careers which is a kind of harm that this court in the ada two case has recognized as being in a reparable injury and it of course also delayed their path to citizenship to naturalization which in turn prevented them from moving forward with their military careers because many of the positions that they're interested in can only be filled by u issue with the claim that a p a claims under seven of six for arbitrary and capricious conduct are not do not have a dignity that would support the preliminary injunction in this case and of the nature  that's a little different than my question because i'm sure you knowing calls it state it plainly that constitutional claims give more weight to an argument for review ability it did say normally your honor and we don't we don't fall whether it is whether the vehicle for the challenge is arbitrary and capricious conduct under the a p a or equal protection and due process under the united states constitution the real issue is what is the right that is being compromised and here the right that's being compromised is not the right to enlist and it's not respectfully simply a delay in access ssion it is the right not to be discriminated against as a class but instead to one of the questions judge i could asked to have your individual access decision made on the basis of individual lives determinations that's what the nine hundred ninety seven  guidelines say your honor it's an individual case by case analysis those guidelines have been in existence since the clinton administration since one thousand nine hundred and seven and l p r is have  acceded into military service on the same basis as u s nationals throughout the period of time that those lines were in existence so so i understood from your statement about the material that's in the record tiger found and what we wholeheartedly support is that there is no rational connection between what's in the administrative record and the policy the policy prevents l p r its from exceeding into military service as a class  review correct and the what's in the administrative record is that the reason the reviews weren't being completed was because the government had failed to move forward on  it's my fault so if i may i don't think i can say it better than judge tiger said it and i'd just like to quote this part of his opinion none of these findings rationally support the october thirteen memos policy change because the question is not who caused the information gap the question is what can the guy ever meant to fix the information gaps and if it takes them time to fix the information gaps we may regret and in our submission the solution here rather than imposing this restriction on an entire class of people the solution here is to fix whatever the information sharing problems were that were discovered and there's no indication in the administrative record that the government consider that which of course would be a less restrictive alternative and not have these impacts on l p r which in turn has an impact obviously on the ability of the military to meet its recruiting goals which is in the record and which secretary kurta himself has acknowledged so you've got so you do disagree with their approach i mean that's what i was trying to understand is is there not enough of the record you just disagree with their approach i think what is in the record your honor doesn't support the policy another words there's no rational connection between the problem that they've identified and the remedy that they have imposed so you would say that having more time to do this review is not rationally connected with getting the review and they're exactly the information gaps respectful you honor there's nothing in the administrative record that indicates that the government is now going to even address or fix these issues these problems that they themselves have identified if there was if there was something in the record that says you know what we can't fix these problems and the only solution that's going to work here given our concerns about national security which it's a are not outlined in the administrative record they're barely mentioned in the senate declaration but even putting that issue aside if there was something in the record that said the only way to cease to solve this we've looked at the problem we've looked at the possible solutions and the only way to solve this is to impose this this  indefinite delay on all l p r regardless of whether they're individually qualified or present security risks that would at least be something in the record that would be rationally connected and what judge tiger said again it's the opposite of a wild eyed radical opinion what he said is it's this policy that i'm in joining if you believe that there is a policy that you can pass within a ministry of record that analyzes these issues and comes to a reason judgment about wide the remedy that you are asking to impose or that you are imposing why that remedy is necessary to fix the problem that's a different lawsuit all i can do is deal with the policy that is in front of me and one hundred and sixty two dollars page administrative record which contains no rational basis for saying that this remedy is necessary or appropriate if i may let me talk about the math for me situation your honor it's a single sentence in the administrative record all it says is that l p r is quote share many of the same risk factors with the map of the population as judge tiger identified there st of all there's no reason to believe that that wasn't true if it's true there's no reason to believe that it wasn't true in the decades that preceded the issuance of the policy nd of all this represents a significant change in the agency's practice and as this court has eks and in the village of cake k k k k k e case changes in practice and changes in position need to be explained in order to fashion a rational connection that is part of it hurt me ask mr poem about the line and where it should be drawn i like you to dress that question it seems to me that this is the sort of sensitive internal military decision that meant is for tax us from judicial review line and also that national security screening decisions are typically of the sort committed to agency decision in fact the the more i listen to your fine articulation i think you describe lots of reasons and not knowing all because only some summaries have been given in some cases like the two thousand seven study but if you could articulate why you believe this is on the side that does allow for judicial review it might be helpful happy to judge person our position i think is is straightforward we don't we agree that the military needs to have discretion to make individual judgments under the adjudicated guidelines and under their own guidelines about whether individuals are fit for military service and we believe the court should give deference to those judgments and there are many decisions of this chord which talk about that and calls is one of them the issue in casa which had just been decided by the supreme court by the way i had to do with hair cut regulations and there are there was a finding that there was an overwhelming military interest in assuring uniform appearance standards that's a different kind of issue then saying that all aliens as a class are now going to be subject to this indefinite delay in acceding into military service with all of its consequences for their careers so what we would say is the line should be drawn when you're talking about class based discrimination put aside whether it's heightened scrutiny or just rational basis that the courts it's not a matter of judicial deference the courts cannot abdicate their responsibilities to consider under the a p a and under the constitution whether that class based discrimination is justified we're not saying that it can never be justified under the right under a rational basis standard we're saying that it isn't justified on this administrative record and this policy because there is nothing in the administrative record that supports the view that l p r's as a class have or pose national security risks that are different in degree and in kind to us nationals with whom they have been exceeding on a parallel and equivalent basis for decades and this is a major radical change by the department of defense and there is no attempt in the administrative record to explain why it was necessary the only thing we see are two things one statements that the department of defense itself has failed to complete investigations and to rule upon them to rule upon the individual files so you wouldn't have you wouldn't be here if it were all of the applicants that have not had their backgrounds completed to certain extent but because it identifies specifically l p r that brought you to court that that's correct judge person for example if this policy were broadly applicable to l p r zz and to u nationals and so they were subjected to the same set of access and regulations that they had been subjected to previously i think it's quite possible that that would present a very different case i would reserve judgment until i had an opportunity to review the administrative record and understand why there had been this policy change but on its face it wouldn't present a case of discrimination on a class wide basis in the way that this policy does and that's really all the judge tiger was saying he wasn't saying you can never do this he was saying this policy is not justified by this administrative record it's a very very narrow question and this court  and i guess here i do part company with my learned opponent this court has on many occasions reviewed military decisions and it always comes down to the nature of the claim and the nature of the claim that's being asserted here is class what a class wide cleaver if you will a class wide line drawing which says l p r's as a group are going to be sacrificed to the government's inability or failure to review what's in these investigative files even though that classification is both over inclusive and under inclusive and it's over inclusive because it includes many lp ours who were born in the united states and have lived here their entire lives and are not therefore subject to the kind of foreign influences that the government everyone has the internet and move on to your next point because we are all subject if we just government has imposed here are not rational they're both over inclusive and they're under inclusive and they're not saved by a single sentence which is conclusory and not analytical and not based on data that  group share many of the same characteristics with the magnes they don't say what those characteristics are and the smith declaration itself if it were to be considered in paragraph twelve says in fact that the risks with talked about he mentioned that this was not the least restrictive alternative and this policy was not required by the only thing that could be done to address of a flaw in the study that's not required by the a as the court well knows it just has to be reasonable action that's plausible it doesn't have to be the only one available and for that reason it doesn't have to be a perfect fit there can be saw  over inclusiveness and under inclusiveness as long as it is a reasonable test counsel also indicated in response to judge pearson's question that the line between  court in call so relied on those were regulations that specifically affected a particular group of people on what parents with dependent children those of the only people that regulation applied to and both courts