amplification and at the same time avoid judicial review under the a p s arbitrary capricious authority is well i mean at this point in the process if you want to make that challenge why not bring the lawsuit challenging the more recent i guess it was the two thousand and twenty guidance whatever you know now the separate guidance that they kicked out junction why not bring a suit challenging that if the issue here your honor in the in this case in this appeal has been very complicated by the timing of us in the comp in the timing of the district court's order is there really are now two separate legs supporting this deadline which is now september th of this year  and you really can't challenge one for the fight without challenging the other in the same procedure for the following reason that i'm not so sure about that i mean the th circuit thought that a challenge to the injunction was mooted out by the subsequent guidance issued by the agency if the th circuit is right about that it would seem like the later guidance is now all the operative doc you know raising the same subject matter and standing issues they had previously raised before the district court judge so your honour's and i mean if you're here asking us to perhaps to not invalidate or nala fire you an injunction entered by the district court in maryland i mean i would suggest that that's going to obviously they all i mean if that's what you're after the end of the days you want relief from  taking that in force an action that doesn't implicate the maryland district court order one way or the other the f d a is not they're not overlapping venn diagram if not put between the rock and a hard place of competing contradictory instance is that that rare occurrence because frankly i don't have any other option given the timing of how f d a has undertaken these things on plenty of district court order be certainly intended to you know raise it before the district court or the district court rule before we could do that so that's the best situation is that of the left him now of course the preliminary issue but this court would also need to deal with would be the issue of causation and article three standing of course that was the basis for the district  and then that led to the maryland district court action and that's your injury right yes the so it's not the briefing it's the declaration that the center for tobacco products director his declaration that was filed and effectively telling half of the story and explain why it was f d a view that it would be appropriate to accelerate the deadline by these twenty seven months only ten months at a point to prepare these applications without considering all the other circumstances that we've laid out in our briefing that we laid off that's that's contained in the in the in the briefing document right that's where the agency made that correct that you know do to redress that here given the later independent action by the agency which reiterating the deadline that you're unhappy about so you would from taking an foresman action against my client and that redress is the injury if there's no enforcement action against them there are there bedad that's for sure that's entirely redressal there's no need to do anything with the maryland district order because the  with yet they also injected this require men and very limited capacity in terms of the scientific consultants an analytical labs which has been further strained by the hope that nineteen circumstances now everyone trying  because the government would say you're barred by the injunction how does that work if no no no we're not not they were barred by the injunction they would say it would be moved to challenge it because they are still that you participate in the appeal from the injunction in the november stop and has never been a party has never been a party to that there were there were some other parties that were granted you know if you are if you are barred because the injunction is in place wasn't that just your fault for not participating in the injunction appeal filed the maryland district court in that case had already previously rejected earlier motions for intervener status by other baking industry interests and so that course that went into our thinking so that's the sequence and that's how it played out all that happened much later let me ask you this why is the district court order not mooted not itself mooted by the guy stuck humans if the guidance sets district court without necessarily looking at later actions and talking about just now i can understand her analysis i'm looking at the your complaint in the background is when i think about standing at think about whether the remedy sought actually benefits the plaintiff or whether whether it will cause a benefit to the planet or whether it's redress a ball a sort of two you would invalidate that's sort of standard judicial review and the district court makes pretty mean you have your arguments but it makes a pretty strong analysis which suggests that the i'm sorry if the f d a submitted to the court that that wouldn't result in any benefit to you because of all these other things going on but then you go on and ask for and permanent injunction the district court frankly really addressed redress ability one way or the other was really all about causation mr howard just to follow up that point the engine you know you seek an injunction against perfectly legitimate basis and fully compliant with the a p a you know theoretically we couldn't join some some prior action that doesn't comply with the a p but your problem is we have this cannot enjoy making a later agency acts which is not the subject of your complaint that's my question i think your i think challenge to the government's filings in a separate case and for the reasons concluded by the district court among other reasons that's not something the plaintiffs can challenge their lunch injury and not really traceable to the government i do think it's important and the question i had suggested that there are other things plaintiff could have done here so a number industry groups didn't participate after many days in the eighty proceedings it's not as though industry had no way of protecting their interest with respect to the conversation that was going on in the district court in maryland i think about eighty five pages of industry groups were filed under very concerns that i think this is now raising notably among the industry groups that participate and there was a trade association up which plaintiff is a member so there was certainly awareness of bullet each and opportunity to participate and that's the appropriate place to protect manufacturers interests with respect to the issues that were reviewable for that reason as being among the principal grounds that it would not be subject to challenge would call would you agree that the twenty the later guidance the two thousand and twenty guidance seeking isn't this sure that the agents if somebody were bring if the same part vapor technology were to challenge the two thousand and twenty guidelines instead of an attachment to a district court because something that happened in maryland is already separately creating the same obligation i cannot at this point say definitively what our position would be the logistical challenges presented by coded that identify is f d a is intent to begin enforcing with respect to products that don't have their remark or you have occasioned by that time as it exclusively that january two thousand and twenty guidance continue to have a fact in some sense so it's not although we did argue and continue to believe that with respect to the challenge on appeal in that maryland is a particular challenge they don't actually bear on the question presented here which is when they're plaintiff can challenge ideas filings in a maryland and it cannot the fact and that's what i want to ask a little bit about exactly what what there is no standing ten month deadline it was the st part of what plaintiff asked for in this case pointed to these two parts they asked for already i can understand that understand the argument that the district court made that you support the plaintiffs lack standing to challenge them because they haven't shown how invalidating that that submission well result in any benefit to the right just won't have that effect even apart from this later two thousand and twenty the concern i have just a technical one is that they go on and and ask for  permanent injunction not to enforce after a certain date that's not if if that if that had been if the continued in force and had been an alleged effect of  this submission then you could say as part of your standing in malice that there was no standing for this case as a whole but if you just look at the nd part and ask for  injunction which will clearly benefit plaintiffs if if it were entered so it's kind of hard to say that there's no standing to challenge that instead we would have to come up with a subset of reason for why that is merit and that's what i thought judge who kept which the end of his questioning of europe your opposing counsel was laying out he was saying we can't enjoy some action that may result from some other action which is as to which there is no standing what what is the legal basis for the for that statement of what the answer is yes my question makes sense because it's not a stand it's i mean pretty clearly they'll suffer harm if they don't get this injunction so in that sense they're standing if you just look at this as an injunction suit to enjoin enforcement for that part of  's no merit to it not a causation problem which says there is no standing i think it's the landing i mean you've got to show if you're going to ask for an injunction you've got standing to ask for an injunction because an injunction would benefit you but you can on all of those cases whether the benefit whether the relief that you get will benefit you are supposed to somebody else or a supposed to the public at large or as opposed to nobody or everybody but  traceability question versus yeah question yes it's the maryland district court decision that's the source of the if the injury is that is enjoin those filings and so i think i think whether you're pressing on the merits or pressing on c n n it shows the strangeness of the way this challenge is being framed and the reasons why it doesn't work i'm with you that i would you phrase that in terms of merit in terms of you're not entitled to an injunction judge kaplan basically says i can't see how an injunction could watch a clean result from this kind of determination and the other side says why not and of course respond to this but one characterization might be that the injunction they seek is a lot broader than the agency action challenge yes your honor that's that's certainly true because again if the allegation is that  events we have in this case and what you see in those employment cases because there you have a biased supervisor sort of pulling one over on a decision maker who is not aware of sort of manipulating the ultimate decision maker in a way and that's of course not the reality of judicial decision making no one is pulling one over on a district court here we need filings of the district court to try to present the issues fully ideally to perswade and notably what the filing said was not please enter this ten deadline what we said is please don't enter an injunction and if you do please don't let it be the four months that the plaintiffs are seeking in the maryland case and explain all the reasons why four months would be very difficult for both the agency and industry so it's care i can foresee where f d a would ever be held in contempt of the maryland district court order for failure to enforce against me for stockroom which would be consistent with the injunction that we see here the maryland district court order specifically