group this is an action under the freedom of information act to require the board of immigration appeals to make all of its final decisions in adjudicated cases available in an online electronic reading where it's failed to do that with respect to thousands of opinions it has designated as non presidential and the result is that those opinions are available to the board and to government attorneys but not to those representing immigrants or other members of the public section fi oil requires agencies to make such records among others available online without requests that affirmative requirement is separate from the requirement of section fifty five thousand two hundred and eighty three that the agency make other records available upon request to a person who requests for it provides a remedy when the agency violates its obligations under the reading room provision just as it does when it violates its obligations to make records available under plain language authorizes a district court to order any agency to comply with its obligations under the reading room provision by making records available in the manner required by the statute the district court in this case instead held that the foyer remedy is limited to orders requiring production of records to an individual request or that remedy which is tailored to violations of boy's individual request provision a three would be ineffective to prevent withholding of records in violation of the reading of the statute doesn't limit a court to that remedy however it provides expressly that the court main joining with holding down separately that it may order production of records to the individual claims the court's reading of the government's reads that provision out of the statute that an entitlement to injunctive relief against improper withhold the government doesn't remedial authority that's greater than the nd part that allows for production otherwise it would be superfluous but i guess if under your reading the st part includes the authority that you're saying it does then what w retrospective one time remedy whereas injunctive relief is on go ing relief to compel the agency to comply with its obligations under the statute so the two aren't necessarily held otherwise but even if that's true dissolution if you have a statute that authorizes one dollar and two dollars and two dollars is a subset of one is not to read one out of the side has a very strong argument that oh it's clearly their way because otherwise language would be rendered surplus because that works for both sides so it's  even if that's the case your honor is that the answer is is to give effect to the broader the broader provision which otherwise is meaningless linder are under our reading of the statute the court can do both thing even if it wouldn't the language authorizing production to do it it still can provide both forms of relief statute right under the government's reading it can only provide the nd narrower form of  and the supreme court has specifically said you can't cure a superfluid snit's by by by reading out one provision from the statute altogether but you would also then look to other other you that the government's argument suggests that the agency is required to do something by a two there is explicit authority for courts to for a person to bring up a private action to enforce a two and without saying so explicitly anywhere somehow implicitly the remedy is to do something quite different than to make the agency comply with a two but is instead the rather strange idea that you can get your own private copy and so could i and so can anyone else and everyone who would be benefited by a two has to bring their own individual action and get their own private copy of all of these records and the government will produce them to each party individually rather than do what the statute says it's supposed to do that seems like a very strange strange outcome doesn't it yes that's right and and the striking thing about the government's grief is you know amongst its arguments nowhere does or does it actually offer reason why congress would have written the statute in that manner that is to say why why congress having required a reading and authorized a remedy for a violation would would take that very strange step of giving the agency in effect the choice of just not complying with the statute let me ask you there why don't we look at the statute and say that it has within it its own remedy that it's to say if an agency does not say that the valve to prevent unfairness to two parties when the agency has violated the obligation but it doesn't it doesn't detract from the fact that the agency still is obligated to comply with that statu and even the government doesn't argue that that's the exclusive remedy the government we've all seen only talking about oh we're talking about is is is remedy and there is there is a consequence built into the that agencies may not do that for example it may be unwieldy it may be so burdensome that that they don't have them that they can't do it in which case they can't thank  not being able to use use materials against an individual and nd if if there's no reason to think that it's more unwieldy for the government to produce all the all the records that it was supposed to make public online to an individual request or in fact it's a lot more difficult to go through and then provide materials to an individual than it is just once you've reviewed them determined that there releasable to post them online that's actually the reason why the statute provides in the reading room provision that frequently requested records are to be posted online to save everybody the trouble of going through the individual request procedure under the government's view of the statute the burden on the agency is maximized because everybody the new york legal assistance group everybody in the country could bring an action against the government to require it to produce all these records to them personally what is to be done and you referred to what have to be opinions if there's a potential of causing a danger to an individual there might be the possibility of redacting names for example for example if someone is being returned to their native country and they have they did truthfully or lee that that government practice torture or violate human rights somebody could truly i worry that upon return they would be quick if you did even if they were not prosecuted before they left that's all right but that doesn't go to whether the online remedy is available versus production to the individual request or absolutely  red that the government bears either way whichever the whichever the remedy it mr nelson doesn't the i mean i'm sure that you if we reverse here and send this back to the district court  i'm sure that you will ask to have everything put on line yesterday but you're asking for injunctive relief and doesn't that imply that there would be equitable considerations that would go into question of burden that that would be a defense that the government could raise at the stage of implementing the remedy and that some sort of timetable for doing this might well be appropriate and that that would be something that would be worked out in the course of devising a remedy it would be a kind of with all deliberate speed situation rather than necessarily being the case that the government has to comply forthwith and had to spend one hour checking out each of the seven hundred thousand opinions that you say should go online that would take a by my rough calculation by the employees about one hundred years that not goes to not whether we have a right of action to begin with but to the remedy and potentially to whether there's been a violation of the of the reading from provision but  violation of the reading room provision why would we direct that they that the court come up with a remedy what what what what we're asking you to do at this point is merely to direct that we have a right of action  to request that the agency be ordered to comply with the reading room provision if it has if it has violated whereas what the what the district court held was we're out of court in any claim a reading room violation all we can get is an individual production and of course individual production would involve all of the same questions of burden and remedy that that  that your honor has described as well as timing because it's it's not it's not the posting versus the individual production that is what takes time it's the review which which which will have to means depends on what the violation is doesn't it i mean it for example take a one if the agency for some reason just decided not to publish its official regulations in the federal register and somebody brought an action to make them do that the way you would the way the agency would comply and make those records available to the requester is to put them in the federal register isn't it it would be very strange to say that i get my copy of this and so i know what rules bind me but nobody else does when that actually requires explicitly requires the agency to do something different so i think there are a couple of objections to that remedy for the plaintiffs in this case is that you go through all of the effort that you would need to do in order to put something online and then produce those records to that plaintiffs and  require everybody else who would like to see those records to file a similar lawsuit and then get their own copy which would then i guess you know one hundred years later after you've gone through this burdensome process the judge jacobs refers to  but i might add my reading your brief incorrectly in thinking that you concede that if my leg wanted to force you to you would have to under the that say that an overly burdensome request you know sure but that's but that does better than some my problem because the same the same rationale is available if they have a remedy to require you to make it available to everyone in either case if it's too burdensome to be reasonable it isn't going to happen either in either case if it is burdensome but not too burdensome to do at all the district court would have  discretion to craft an appropriate remedy so why is the one remedy available the remedy that is a private party that is well financed westlaw let's say could ask for these documents force you to provide at least some of them for sure maybe all of them depending on what the district court decides in terms of burden and then charge the public for access and all of that  contemplated by the statute but it does not contemplate a remedy by which the agency is required within the limits of burdensome this and reasonableness to do what the statute requires what sense does that make its point one dollar two cents you're not asking us to enforce plain language of a statute that may or may not seem absurd you're asking us to in and equitable process whether it's production to nile eggs or putting things in a reading room wouldn't the district court have the ability to balance the burdens against the benefits to think in terms of you know every lawyer knows that more recent cases are probably more informative than ones from twenty years ago so let's start with a year's worth let's start with an ongoing obligation to put things in a reading room let's see how burdensome it is and then proceed gradually to move in a direction of full disclosure i just don't see why the the potential burden effects how we should read the question of whether the court the remedy is available at all well maybe perhaps i can try to turn that around just to actually answer the copy of it to the i don't believe that to be a general practice you know in the david i turns in the days before the federal appendix the united states attorney's office logged and kept track  of all non presidential summary orders because it was useful to lawyers even if they couldn't cite the summary dispositions to know what the pattern of application of a particular rule was and the government had access to that information because it was a repeat player and was in all the cases individual defense lawyers didn't have access to that information but you can't deny that tailored it seems to me to be a which is an agency that produces an enormous records enormous volume of decisions there are of course other agencies do you have any idea for example about of the department of agriculture the body that was it issue in the th circuit case how many decisions it issued in the year i don't have numbers so but you were your argument here the argument that a four simply does not authorize this kind of relief would apply as well to an agency that what assurance to vent give that the agency is not engaging in secret law that is to say that the agency is doing one thing in the opinions that it is not publishing while doing so while declaring a different see one that provision actually lines up exactly with our reading of eighty two dollars and with the right of action c one says when the agency chooses to return comply with a request that it comply with its reading room obligation under a to it shall make the records available to the person now to itself uses those same words make available in describing the read so the administrative remedy when the agency chooses to comply with the request is to make the records available in the manner in which the individual was d seeking them that is make them available to the individual in a reading  that's the same remedy that that we are asking the court to to provide its injunctive powers given that the agency has chosen not to comply nd with respect to the idea that  he too is limited to a provision that says the agency can't rely on things that it doesn't publish that actually doesn't doesn't line up with the way the statute is written which says the stop right there it wouldn't start with your from a bottle and that affirmative obligation also applies to some categories of things for which the the sanction of being prohibited from relying on them doesn't even make any sense like frequently requested records those are not things that were administrative staff and those are not things where that remedy even has any application so if that's all  means half of the things that a two requires the agency to put in its reading room don't have any remedy at all and further again the idea that just seeks to limit its relief and finally that that remedy doesn't do any good where the problem is not just that the agency is relying on something that wasn't published where it 's manner of compliance usually is to provide a copy which which you know provides the sig least of not using something against the person for which they haven't received notice but the problem is that the  immigrants and their lawyers don't have access to the thousands of other opinions that might be out there that bank contradict the one that the agency is now citing against them and then finally as to the question whether these unpublished opinions are in fact opinions under a two that's a merits question we'd love to have the opportunity to litigate that and but it's premature right now because we're out of court given the district court's ruling that even if those are opinions and even if they've been withheld in violation of a two we can't get a remedy of ordering compliance with a two that's the issue that's before the court now and the question whether these these unpublished opinions fall within a two is the one that we'd like to get to once this court rules that we actually have a right of action to begin with and thus there are any further