this is a challenge to an e p a directive that prohibits scientists who receive e p a research grants from serving on e p a scientific advisory committees and directive to it's a directive really t obligations that on were ejected from the committees for noncompliance with the requirement particularly in the directive and the reason why that's unlawful i'd like to address three reasons why that muffles your directive also is why this is an ethical regulation because it prohibits these individuals from holding a financial interest on the grounds that it's a conflict of interest and e p a doesn't dispute that this directive is motivated by it by that was motivated by the administrators view that these ethics that these agency grants create a conflict of interest and that's contrary to the o t regulations which are binding on  regulations and the regulations adopted by the general services administration under foka direct e p a to apply that would be regulations in the management of their committees and in addition there's another lot of like here disqualifying conflict o g has addressed the receipt of even see grants by advisory committee members and determine that they should not be disqualifying but you you can see it in you at least i think you do that the e p a is he's free as long as it goes through proper procedures that your theory to impose either higher or lower standards correct there certainly judge  right you say it's contrary to law because e p a must prohibit what the ethics office rules prohibit in a while with a while and i'm asking you whether that's in fact correct that's correct by not participate what it was suppose for example itself it needed to identify a little more precisely the difference between issues on which a university a university scientists with and with  ok so then so then i understood your argument actually to be focused on primarily on your view that the agency here isn't that that's your argument but we have we have several arbitrary capricious arguments tested on and that's one of them and i'd i'd like to address that e p a never acknowledged that it was reversing its own prior policy which was the opposite to the policy adopted in the directive and e p a also never even considered the expert judgment of the office of government ethics that these grants should not be it is horrifying and on both of those sufficient under this court's precedent if it's a dance with wood from clearly doing something new right this court's precedents require any agency that's reversing course to acknowledge the conflict with the prior policy not to it was reversing its prior considered view that it was important that deeds grantees be eligible to serve on e p a is advisory committees because of their expertise in the particular scientific issues th provision of the regulation that says a violation of this part or if supplemental regulations does not create any right or benefit in forcible the agency says that means you can't right and that's wrong for two reasons that simple the st is that g e does not have authority to preclude judicial review by regulation this case is this court's cases are clear including ball rosmer and daisies from here as are clear that in order to preclude review of violation of law as this is an agency must there must be clear in disha a congressional intent to prove who preview and committees is not really fleshed out on the record given what about allegations because motion to dismiss we have to accept allegations as true do you write any allegations in either the complaint or word the declarations which support this as the exact number but certainly as to the impact that this is going to have a serious impact on the operations of these advisory committees or that it's going to exclude a large number of individuals and that it's going to skew the membership of these committees policy that the receipt of agency grants was not a conflict of interest and doesn't give a reason yes it both in addition to to referencing the o e standard which we pay prior previously followed it also says that the competitive peer review process by which even secret e p is grants are awarded means that the risk of a conflict of interest that's a separate process and he recognized that the risk of a conflict of it that that the advisory committee it's would have no ability to corrupt that process the peer review process by which the p a grants are awarded as a choosing who it wants as its advisors and so the my opposing colleague is focused on the assertion that the federal ethics regime provides a law to apply that constrains the agency's discretion here and that's a fairly basic misconception federal ethics rules are a code of conduct that apply to people who have come on board to federal service and the specify which particular matters a person can or can't participate in federal ethics laws don't tell agencies who they can or individuals who work to serve on the committee that's the way your brain freeze that isn't there or in fact they abandoned that or he was beside himself their argument is that this directive conflicts with  members cannot have a policy of excluding people because they have are in receipt of an e p a grant because they believe that that is a violation of federal ethics law and what i'm saying is federal ethics law does not speak to what qualifications a person has when an but we're not talking here about you know individual people in particular matters conflict of interest we're talking about e p a s discretion to choose who we export subsidies and no i understand that but but the under under the ethics rules tell me if this is not the right way to re create the appearance of reading from your own direct that's where it can create the peer to reality of a conflict of interest you know that's not what it says is he says may create interference with their ability to independently serve and there's a difference between independence and conflict of interest the idea that the the d as a regulation does apply the standard does include is not for this case ok but it says it says can create the appearance or reality to independently an object of lease or that's what it long as they don't make any decisions regarding their individual right no saying is that there is no conflict of interest one of the documents that my posting colleague relies on as well as an you know why do you report from two thousand and thirteen that specifically distinguishes between independence from the agency and conflicts of interest conflicts of interest generally are about people outside you know financial holdings council employment things that might skew them based on their outside activities in the world don't you know we're all walking talking conflicts of interest here i have a spouse who has employment quote concrete terrence outwitting potential interference with their ability to independently serve isn't that all about whether the review committees write big big cyst e p a has put together a scientific proposal that we're going to lower the standard for carbon monoxide in the air from nine parts per one million over an eight hour period to some lower figure and they submit this to an outside independent body to review the science and see whether they've done a good job or not and so e p a is interested in having someone who it having a body that is perceived as independent from the agency to provide a check on that and then it's that's abused to be agency where the regulation is challenged down the road in litigation it can say look these outside people cafeteria without that you want someone independent to provide that and so but i still don't understand the difference between take root so you have two different scientists from the same university one there's a separate set of legal rules that apply to the decisions that agencies can make in about half a step or committees obviously they can't do anything unconstitutional there are rules about nepotism and so forth we're talking about a different set of rules that apply to who an agency can appoint to its committee and the agency here is focused on staffing a body that is by design the very purpose of it is to be independent and we can argue we can have a policy disagreements about whether this is a good or bad policy but it's not a federal ethics rule so is i mean that the agency is down by federal officials it absolutely matters they can't allow someone to to participate in a particular matter on an advisory committee if that person has a conflict of interest but but e p a is the choice of whether they want only people with the highest degree in their field or only people who publish research translate and to be fair i think the district has some trouble too because the district court said although it ruled in our favor look i think that the federal ethics laws provide a floor but not a ceiling here in the federal that's why don't even really provide a floor here they don't speak to who the agency can choose to serve on its committees directive here was a response to a very different kind of legislative initiative which was going to bandy agency from allowing anyone to serve if they had received an e p a grant currently or any time in the past three years and baucus principly  especially government employees are going on in advisory committee within the meaning of back and they participate in any particular matter of general public ability where they just welcome financial interest arises from his non federal employment provided that the matter will not have a special or distinct effect on  committee and also it's important in a conflict of interest rules don't say you can't all cancer want a committee they say particular matter it as a general matter a conflict of interest reason is not a reason why you would you jack someone from federal service it is a reason why you would recuse them of a particular matter and we're here talking about what are what are the qualifications that age or considerations that the agency is going to consider in putting together an independent committee and again we can we can you know people can reasonably fight and  ok under supreme court and our president would an agency changes it's possible like that has to acknowledge and change and it has to explain why it's changing so when i read this directive we're to  agencies don't have to publish policy statements about who they appoint to their committees they usually don't other agencies might very well have the same policy i don't know they don't issue the agency just pick people for committees they don't normally make a fuss about it the very fact that they made this announcement years illustrates how far afield they are from from what this case is because that was an adjudication of confidential business and i trust inquiry in which an agency was going to release confidential business information within five days basically setting up a situation where they had to go running for mandamus i think to this court and the agency didn't acknowledge that they had had previously had a policy of protecting that information up through judicial review so we're talking about primary conduct facts in the world rights of private parties by departing well the argument there was that because the agency said not x rather than x the agency had acknowledged what it was doing the agency didn't say we you know this is a change from before telling you is this policy statement by the very fact  right that's number two again sitting with my hypothetical where would i find in here in the explanation for why people who could serve on advisory committees the day before this was issued now no on came the explanation that was provided is in the memorandum attached the directive i agree with you that it is acknowledged that it is six things but what i think is important to note is that agencies don't have by statute they don't have an obligation to set forth their preexisting obligation that the agency has to explain its departure from that's a perfectly acceptable if that's your answer you should just say that's what i think that's right i think because this is not the medics rule and the point it's ours and say i think i understand plaintiffs to be saying even if it's not an ethics rule i still think they have to look to explain themselves the in my view you understand that with that answer if if i can only speak for myself but if i happen to disagree with you about the premise of the question then you lose well no i don't i can't point you congresses administrators pruitt in announcing this policy thank the congress for its leadership on this issue and said it was adopting this policy responsive to those concerns the policy that was adopted was was as a matter of agency discretion and was more limited than what congress would have forced by statute and you know that the problem  to be transparent right but what this is a public good that the agency is providing by saying what its policies are again you can disagree about whether it's a good policy or bad policy but they're at least telling you what they're doing and if the court is going to say that e p a standards applied makings of primary conduct in the world and this is a policy statement about how the agency is choosing its own advisors who serve at will at the pleasure of the appointing authority and so there is there's simply no requirement for the agencies that speak in full or detail than they did here discussing before it states a vital part of ensuring integrity and confidence and e p a s backs comes from guaranteeing that back members remain independent of the agency during their service that one of the committees at issue here case act is actually a statutory requirement that the committee be independent independently an objective we serve as a fact member that member should be motivated by service and committed to providing informed independent expertise and judgment i would just note that nothing i just said mentions conflicts of interest at all it the next paragraph goes on to say this is in addition to not right now exactly so it might take a minute or two but i think i can get this out in a way that's responsive so st there was an executive order that said we need to have uniform standards of ethical conduct there's also the ethics and government action that provides rule making authority to o oshii acting mostly at the direction of the executive order said we're going to have uniform rules and then we're going to set up a supplemental agency regulation process because we recognize you know for example that u p a people who work in the pesticides office probably shouldn't hold stock in pesticides companies that's one of the e p a supplemental agency regulations for example but what he said in this regulation is this is an internal housekeeping matter and nothing in here is intended to create enforceable right just as  when my supervisor to my left issues me a directive to do something if you happen to publish in the federal register it's not as though someone could sue over that they were trying to say this is a housekeeping matter it doesn't create any rights i think my my opposing colleague is wrong to frame this is about a process to exist or that any agency to use it under any particular circumstance so i would agree with my opposing colleague if there was a statute that said people you know there should be a supplemental agency regulation process and people are allowed to sue over it and agency can then promulgated regulations saying this doesn't create any rights you know procedure or substantive but here everything is a creature of the agency's own housekeeping statute and so it's not a provision judicial review case it's a is there some right that exists at all in the world well what do you think about the question i ask even can state in a regulation that that it can't be challenged on the administrative procedures act which is what you're saying but setting that aside isn't this focused on a different problem then they don't want they don't want individuals to be suing over serving or not serving on advisory committee i think the way that that you know this regulations can you give me an example agency to a regulations usually say that they're you know the rules about how requests for an agency official to turn over documents or testify in court are teed up within the agency for what i don't think this is outside the agency remember here we're talking about advisers to the agency this is this is not a regulation of someone's primary conduct i understand that the individual scientists who have served and provided you know great under the e p a because it's contrary to law because you are required by the supplemental agency regulation to go through this supplemental process with g e and you didn't do that here and so therefore it's contrary to law that isn't forcing he address it's in a regulation because you want it to be easy for agencies to find this process and to use it but that includes this language of the executive order itself had done because this is a housekeeping matter it's  underscores that there clearly is a lot to apply here this court can do us side by side comparison of those the regulations and the g s a regulations that bind u p a and the director on the one hand and the directive on the other and determine regulations because the g s a regulations direct d p a to apply that picks rules in making appointments their committees and i would direct the court to seventy three page seventy three of our agenda where the g s a regulations say the agencies designated ethics official directive is motivated by conflict interest of interest concerns and that is to date the only rationale that he p a has given  me on page forty seven dollars of the v a s grief they say that congress itself found the funding relationships to raise potential conflict of interest concerns and i don't have the page but he says close to there that it was not arbitrary and i think you're right that implicitly looks like a concession on trying to make sure it's not yet that well there's a judge ginsburg there's another page where you ph says that they acted that they were that they acted on these concerns raised by congress and because of the examples that really make crystal clear that when oh gee determined that advisory committee member financial interests did not create conflicts of interest they were including agency grants within that example to address is an example of that situation where the national cancer institute has established and advisory committee to evaluate the university's performance and c i grant and it makes crystal clear that the same standards apply to grants when they're about to be the time the type of community and determines that the situation presented here is not a conflict of interest and ultimately whether that that action or failure to act would be reviewable or committed to discretion but here we have the administrator not just making clear his rationale but also adopting an like to down finished by addressing the arbitrary capricious issue and i'd like to emphasize that if you read this directive e p a gives reasons for the new policy and it states the new policy but there's no indication that any piece prior policy took the opposite position and there's no acknowledgement of that conflict and that's what this case this court's cases require  there's no indication in this directive that the expert agency in matters of ethics has taken the opposite position as to whether there's an ethics problem here that expert agency in matters of of ethics has decided that these grants should be permitted to arbitrary for e p a to fail to even consider that judgment of the expert who can see as he failed to do here if there are no further questions i would ask the court to reverse the