amended complaint showing an extensive quarter dated and continuous relationship between three private individuals who operated as a group to advise the department of veterans affairs on a variety of policy matters over the course of a year and a half now absolutely and the district court below would turn this case into one of summary judgment but it is not but that was not required at this stage of the litigation to prove up its claims it was not required to make a cause case it was required to make out a plausible case and plausible taking all facts as true in the complaint and drawing all reasonable inferences in that favor now yes i think it's important to start and really focus on what makes this case so unique this is not a case like the one that the supreme court was concerned about public citizen involving one of consultations this is also not a case like what this court was faced with an a p s where it describes a group consisting of hundreds of different participants who didn't seem to really interact with each other and what this court called more of a horde than a committee instead what you have here is three private individuals who describe themselves operating as a team as a group who the white house describes operating as a team as a group with the department described operating as a team as a group working in close coordination clinician with each other to advice the department over the course of eighteen months this is truly a unique case and a unique case or honors that i might point out that really cuts to the heart of fuckup i thought that was passed because congress was concerned that the executive  branch not be allowed to behind closed doors seek this sort of formalized advice from private individuals this is precisely that kind of case this is consistent coordinated extensive interactions between a group of the same the same private individuals the same three guys operating together to provide group advice to the department how do we know that the president who or the agency stablished from from what you have alleged in your complaint sure i think there are a number of facts that make it at least a reasonable inference that the president operating in coordination with the department establishes script and of course the established the see that in a lot of ways our complaint alleges of course that president trump met with these three individuals at the white house to discuss veterans affairs policy he then announced shortly thereafter in a press conference that he was going to set up a group to advise the v there after secretary shelton met with these three individuals and followed up with a with an e mail the subject line was group meeting in which he thanked the group of individuals for their willingness to to help  work with the v a and then you see of course of conduct eighteen months of the same three individuals working very closely and coordinated me with the department to actually advise it so i think taking it to tell of the of the circumstances and looking at all of the facts in context is very much is at least plausible the least reasonable to think that president trump said i'm going to set up a group that group starts to operate and a reasonable inference that is that he did in fact follow through on his intention to do  that's what it seems to say so if if if that's the case can't we use that article to help interpret what the plausible i guess what what we can reasonably infer from your individuals issued but this is certainly not a case like in food chemical or in bird where there is no involvement from the federal government in the establishment of the council even if i think promoter played a significant role perhaps in conceiving of the need for the group selecting the members and sort of starting to group out on its on its task of advancing the v a i'd also point out your honour's that of course we don't have to prove that the federal government established the council we could also prove the alternative that the federal government utilized the council and we similarly think we've a ledge sufficient facts to make that case possible as well of course utilize takes on a sort of unique  context a unique definition in the foka context as this court has described it's that a public citizen the question is whether the group is so closely intertwined with the federal government as to be amenable to strict control and management but you know understanding that standard i think it's important to take a step back and look at the reasoning of public citizen and what public citizen said is that utilize this essentially an extension of the term established and it's meant it's not a situation that foka covers groups that are not only created by the federal government but also created for the federal government as the supreme court and public citizen to explains the question is did the government to permeate the group i think that's absolutely the case here there's no question that this group existed solely for the purpose of advising the department of veterans affairs during this eighteen months is very much unlike the a b a committee which of course is a separate longstanding institution that has its own funding structures and its own priorities in its own work process flows this was a group that was closely intertwined with the department the department and i'm sorry your honor i didn't mean to interrupt you but i had a question you you mentioned a couple of times that th group function for eighteen months and i wondered whether it's finished and whether if that's the case do we have any movement issues two are just for knowledge yes the group stopped of an advisory committee so we do think there is much that our section ten records claims are very much alive if they provided the documents that would move the case i think i think that our only claim for relief that remains alive are those are the outstanding because the documents have been released to us underfoot the government's responsibility here is to make them public at least some of the documents have been put on the department's reeking room or at least were for a time but it's not clear that they all have been that they all are still there i'd also point out that through foyer the department has searched the emails of government officials and the private e mails of secretary schilke and the government has never to this date search the emails of these private individuals or or see what documents might have been shared amongst those private individuals and that very much could turn up documents that would come within tech to actually tend these disclosure requirements to question about the just the basic  says no advisory committee shall be established unless it's specifically authorized by statute or by the president or by an agency and in a way i mean that the analytic effort of the briefing as you know to fit it in or the blue briefing is to fit it into fuck i basically say it is an advisory committee and therefore is held to the requirements but in a way the allegation suggests a more fundamental problem which is that this group operating as it's alleged to have operated would be unlawful it isn't it would get could not be a lawfully functioning group and so i'm just trying to make sense of how to how to understand that and how to understand your briefing in light of that and i do stand over my time and just want to make sure that i can quickly answer  so yes i think i think the issue here is when you have the government creating a behind closed doors a group to to work extensively to to advise it as has happened here that yes also makes clear that foka should not be written should not be read in a way as to become easy to avoid and if it were the case that the government could avoid the requirements of fokus simply by setting up a flock and giving it so much authority and operating in such an unlawful he characteristic of an advisory and even if the alleged group was structured as an advisory committee complaint doesn't all's of we allege that stablished by the government let me start with the nature of the so called council as the supreme court explained in public citizen of this question that their whatever degree of formality is required that there is a group why why isn't this combination of allegations for fish and for why isn't that enough for it to be plausible that the present stablished this group assuming that the group is sufficiently formal all in the way that you were discussing understood so s that there's another plausible possibility here but and that would certainly get you past summary to stop that summary judgment of that was all there was but why doesn't this at least get the complaint get past the complaint you r argument is plausible but it's also plausible that the group he was referring to included because three people and that it was set up as he said to advise david so it's just a question implausibility sufficiently plausible to indicate that the president or the president in combination with david set this set this up he said we're going to create a group who will so st of all your honor i want to make it clear that it's important interrupt the flag i had just briefly the nd response is that it also says that even where on a narrative might otherwise be possible entrance plate it was ability can be can be defeated by the presence of an obvious alternative explanation is present allegations surat the amended complaint that the three men exercised influence over the department and i know this is on utilize and not on established but to me the two are kind of cross cutting that allegations that they exercise  of the department undermines any reasonable inference that the defendants that the defendants the department exercise actual management and control over them and i wonder if you're defending that reasoning and the reason that i raise it in connection with what what you carlin were just discussing is that there are questions sort of who took the initiative and and one way of looking at the facts alleged here is that it's actually even worse you know that the utilize as you know do we even have the kind of relationship between the government and the and the private actors that implicates fokker and here it seems like it's gone even beyond the cases that we've seen before in the sense that these folks you know let's say let's say i'm not saying that i think that these facts a legit but this is i think the theory underlying the complaint is three people get together they say we've got a lot to contribute and they approach the president and the president as jeff i think that's a great idea and the three people are kind of and you know x terminal  group that then has a controlling force over and agency and putting aside whether you think these allegations rise to that level and plausibly allege that describing i understand you know how it might be sort of concerning in a in a policy sense it might implicate other others you know sources of losses as you know ethics laws or something like that but it's not the sort of thing fox was meant a advising on the qualifications of the nominee is is to sort of differentiate and outside and a day just giving advice take it or leave it you know here is our white paper we think you should we organize the v a this way we think you should you know these judges are qualified or not in these ways and it's kind of a here's this product take or leave it and what the public citizen analysis is saying is that's ok what's not ok is if the government's saying here let me outsource this to the a b a we want you to look at these various criteria and you're going to tell us in our to me our needs whether these people are off either not in the latter it seems to me what public citizen is concerned about when is talking about direction and control but if the government just said we would have criteria a b a you tell us what charges we should pick and actually what criteria we should use it seems to me the abdication of of control and direction by the government in that situation wouldn't take it out of pocket which is a little bit what i take your argument to be suggesting but rather put it more squarely in under far so i think that if if the group is of the sort that thought it was s and cheney and as the supreme court said in public citizen it is both a matter of long historical practice and in you know close to the heart of the constitutional protection of the executive for the president and other senior executive solici doctors and health care professionals decide some priorities for us and come back to me with that is that similarly just the president drawing on outside advice in a way that doesn't implicate foka i think that's correct i mean to the extent that that it would run or is highlighting used to that group and not a single individual you know i think again if we were applying the server the structure analysis be coming to formal consensus the fact that you have two people or three people instead of one person providing advice as individuals or even in some sort loosely affiliated sense isn't enough to be to be covered by bach and you know on the said in public citizen it usefully is there's considerable evidence and i'm quoting the congress nothing more than stricter compliance with wording and other requirements which were made more stringent by by advisory committees already covered by prior executive order and similar procedural requirements and sunshine on all kinds of the provision of advice to people in government whether by one person or a small group of people had it done so i think i think committee and the court in cheney was clear that the reason it was imposing this vote or veto the standard was because the president sort of had does have this understanding is understood to have a little bit more leeway to seek advice and so the standard needed to be higher no court in the circuit or any circuit from from my in knowledge has ever applied that heightened voter veto standard to advisory committees that are principally advising the department and i also think just that principally devising the department points is important opposing counsel again says this isn't the kind of committee that was meant to be covered by fox and the president has a lot of the forty two or a lot of sort of leeway to fight this wasn't principally a group that was advising the president this is a group that was about advising the department and working with the department officials daily to advice and not just one matter but a whole number of very important matters including being involved in a process for a multibillion dollar contract at the the department was in the process of developing this is exactly the kind of thing that fox was meant to to to prohibit what are the what are the minimum criteria in the sense of is it the group character is it the ongoing nature is it the apparent maybe it's the fact that these people seem to have so much authority because they were understood to be blessed by at least of the allegations happened blessed by the president you know which again is a little bit of an awkward fit with some of the doctrine on utilization what what are the one of the minimum hallmarks in your video well i think you know i think the minimum hallmarks are bread probably all of the above i think what you have here is a fairly agree just case involving the same three individuals operating as a group advising over the continuously over the course of eighteen months and inviting on important issues and feeling to offer to two to wield a significant amount of authority i think that that that doesn't make this not an advisory committee that just makes this in a legally operating advisory committee but i do think again it's this consistent coordinated ongoing relationship the precise kind of thing that  was was passed to prohibit the unfettered use of private groups of private and advisors by the executive branch outside of any scrutiny by congress or the public the question