yet we take a look at the complaint and felt there are real solid concrete actual factual details that os or the allegation that there is a policy or practice s well that is correct that and that was what the lower court did say but what i would argue is that it is not and not necessary to have a deliberate mishandling the not on the plaintiff at the pleading stage to go into such detail and identify any specific policy that may be being held at the agency what needs to be a letter and what needs to be  point as i understand it on page ten of that opposition as to what your theory was are right and you contrast that with the fact  that the burn who was on the government and yet as soon as you filed litigation the government responded very quickly why why is that a sufficient allegation of a policy or practice the implementation of which is the policy in practice is somehow inconsistent with the government's obligations to the policy practice that that we are alleging is ongoing which essentially is bit further by there is just summary judgment seat or so i think the question is being asked is why do we assume that there's something to be pursued unless we think that there's a statutory violation to begin with and on the question of whether there's a statutory violation to begin with your allegations are that there's been a routine effort on the part of the government not to respond within twenty days and the government's response is so what because as i understand it because twenty days isn't a statutory requirement to begin with all it is is an opportunity for the government to avoid getting taken straight to court without having to sort of exhaustion procedure put in place and so the government's point is well you can allege all you want t days has been routinely missed but that doesn't allege something that gives rise to a claim because that's not a violation of the statute that's correct which is why we brought this second claim the policy and practices claim it's that's a little benefits you are requester because the requester can go straight to court right and so i'm not i'm not sure i see a difference between missing the twenty days and being straight in court because it seems like the direct result of missing the twenty days is that you go  is that the requestor can go straight to court so they seem like they're the same thing and then the question becomes that maybe i'm wrong about that but they seem like going to say anything and then if they are then the question becomes why is there a violation at the point that the twenty days is missed and the requester gets to go straight to court that just seems like the way for your works there's an administrative process and then there's potentially a judicial process but just because an additional process has been triggered doesn't mean that there's been a violation of foyer it's a part of that the judicial process due diligence a search that's it that seems like that's a different thing because what the statute presupposes is that there's a twenty day period there where as much to report for the government have the opportunity to respond and if the government doesn't respond within twenty days well then you get to go straight to court you don't have to go through the administrative appeal architecture you get to go straight to court and then when you go straight to court well then the court takes a look at what's been going on and if the court concludes that the government's exercising due diligence well then everybody's fine but if the court doesn't conclude that the government's exercising due diligence then i assume what happens i mean you tell me your you've done a lot of these cases but i see what happens at that point is in the court will make a conclusion that the government's been dilatory in the way it's responded to your request and the internal order that requires the production of documents but your point is not predicated on the the court's ultimately entering an order what your current court what your complaint is predicated on is the government's missing the twenty days and it just seems like at that within twenty days or in unusual circumstances cases non production within thirty days is a violation of sashing period you've been subjected to multiple violations of the statute in fact a practice of violations of the statute and you have many filings to show you her chart and here are you going to show you have allegations of complaint or other similar cases where the government did not meet the court and the court says the government's exercising due diligence has there been a statutory violation of for you felt the effect of the only statute that i think is an issue which is what right is there a violation of for you know when the government says the twenty days it goes to court which is your entitlement to do after twenty days and the court gets involved in the process and the court says of the statute that it can retain jurisdiction and allow the agency additional time to complete it review of the wreckers because the agencies actualizing due diligence in responding to the request yes there's already been a violation of the statute even though the court makes that determination that well the remedy for the violation by the agency  that you do you go to court and then the government says to the court before you come down on us there's a statutory provision that says that as long as we're exercising due diligence in responding to the court in responding to the request excuse me the court  and allow the agency additional time the statute says that the court as you've got it right arrived at it so let's take this out and say that that happens the court says ok now i've looked at everything that's been going on yes you miss the twenty days but i think you're exercising due diligence further violation of for you is that what the question i think is question is who is when and instead of for a functioning so that when your quest you get the documents you've actually had to court go to court and from the time and money the question is let's say the government asks the court for more time really more time we're searching for diligently  fact we've set up some great new systems were speeding everything up to new before you order us to produce can you give us three more months and the court looks at the proffer and says you seem to be doing a reasonable job we'll give you three more months then after three months you get your documents and then you turn around and you say ok who pays do we have a few petition against the government because even though the court gave the government three months and said they were making reason to progress in reducing their backlog there's still an underlying violation that caused you to have to go into court rather than just go ask the agency you have documents and the question is do you have a claim for fees because of the underlying violation of the twenty day deadline i understand your question yes and actually it's a little bit of a topic that we talk about and  it the question is whether or not if the court becomes involved required or as the right of the plaintiff which incurs costs and all that sort of thing and issues an order whether it be you have six months or anything like that then yes once a court order has been issued place that has a right to go collect tiny c r so let's focus on this case all right which i didn't understand to be about attorney's fees but i understand my colle focus your opposition to the motion for judgment on the pleadings articulated the theory that the repeated failure to respond with in the initial twenty day period was an abuse of the statute five the government and you adopted  the ninth circuit approach in law that you got nineteen requests and none of them responded to within twenty days and that that was the theory of your case not the individual twenty days violation gives rides well let's not use were violations of the government's failure to meet the twenty days is not the statutory violation on which you suing rather it's that congress said you are entitled to these documents and the burden is on the government to demonstrate you are not and i understand that theory and what i'm trying to understand is the point that judge srinivasan i thought was exploring review is congress did say all that and indeed this court has commented on particularly judge le on the concern about the courts sort of shifting the burden here to the requester instead of the government but the problem or not the problem of the issue i'm trying to understand is congress said yes you do have a right the burden is on the government to show you don't have that right and as you've been explored with the judge you get to go to court and normally the fact that you get to go to court is not enough to show harm and you're not on wedging here that you had any timely need for this particular information but that you were entitled to it if i may answer i've run out of time i know that we've been taking up a lot of time in your questions and so that's why i started out by saying the government's position is that your complaint at least has to show or allege some misconduct almost in the sense of bad fa actual factual details of nineteen requests over a period of two years that went completely undetermined these are very simple words in class request that again within the complaint or corners of the complaint the plaintiff did state with factual basis that they were personally harmed they would have been unable to gather and collect this data and distribute it to their members as well they anticipated a sufficient likelihood of future harm given that there have been five prior litigation filed this was one litigation composing of night scene requests and at the same time there is a related case that is stated in the lower court incomplete responses how do those relate to those incomplete responses relating to those five cases are those wholly separate this is where you talk about press releases about production of records correct so there is a golfing cations in italy traps but you also know in those press releases that certain documents still separate then you're comparing paragraph sixteen to paragraph seven so paragraph seven is specifically yes the five prior litigations that were based on the identical requests made it here that required judicial watch to go to court but again and that was the only way they records were produced i apologize i was not specifically involved with each of those individual prior litigations but as far as paragraph sixteen there's a separate set of facts as to show what judicial watch does with the information that they gather and in never lasts for these for this information and the travel related documents you may not know the answer to this but the specific question i had was whether her sixteen is those question a little bit better since these are examples of and as i said when we put out the press releases related to the ip travel costs it involves several different agencies including service and government defense in order to put that information  part of the press release noted that secret service had failed to respond to the requests so those went out now i don't know that i would maybe be able to get back to the later date to match out specifically if these press releases are is the argument that this was this complaint was dismissed on the pleadings and there are sufficient and an abundance of facts there are you know the prior lawsuits there are the harm is being caused to do just watch because of the missing information these are continued violations and interestingly if i can just in light knew i think apologize somebody did mention that it seems that the government did that would come out that they are not complex where requests and that they've been able to actually produce records so can see this question of the number there are so suppose that this is the way i think the statute works and i'm not sure that this is right because suppose of for purposes of this question that it's not there's not been an actionable problem every time the twenty days is missed but that in some situations there might be suppose the government engages in as drivers described it in a bad faith conduct or  conduct of some variety with respect in the twenty days and in those situations at least the court comes down and says no do no due diligence i'm entering an order right now that you need to turn over the documents and i can't for the life of me understand why you haven't turned over the documents yet that's a possible scenario there's also possible scenarios in which this new twenty days is totally fine because the government's doing what it can and it just can't get everything together them in twenty or even thirty days and so it naturally goes to court so you have those two possibilities is there anything in your complaint that alleges that what we're dealing with is the worst set of government conduct as opposed to the innocence that the government conduct because as i read your complaint it proceeds on the theory that there's been a repetitive violation and i'll use your your conception of it a repetitive violation of the twenty days ago there's a pattern or practice of violating the statute or go we're entitled to relief and a response to that might be well the which is that there's been a repetitive breach of the twenty days doesn't necessarily a sabbath pattern or practice of violating the statute because some many all of those might have been in the first category in that they were totally fine so there's something in complaint that says that it's not just the violation in the breach of the twenty days but that these are breaches of the twenty days that are bad ones i'm going to it's very simply no there is nothing in the practice this allegation is supported by all of these facts and would like to proceed further ok with the civil litigation and get into discovery which while discovery is not really an affiliate issue given the pattern of practice and every single time we're just never going to respond with a determination within twenty days and then we'll deal with it in court is that ok under the statute i'm not sure your honor i think in that case i think there would your brief your argument is that breach of the twenty days isn't a statutory violation yes then if that's true then i take it maybe there's a situation in which there's three tiers there's the missing of the twenty days that's ok in that situation suppose you have agency does that and then the court just says what are you doing because the statute at least presupposes that there's that every case is going to come to court that there's going to be some dialogue between the requester and the agency while there is within twenty days or thirty days and the government ought to be playing some role in to fill in filtering these cases so that we the district courts are subjected to every single piece of litigation every time there's a request made of this agency do you think the agency can come right back and say sorry that's just  entitle to do that under the statute and that's the spot you're in or is there at least some situations in which a breach of the twenty days based on an intentional hall see that says you know we're never going to even try within twenty days at least some situations in which that would occasion itself occasion a lawsuit that would give rise to a remedy or an injunction against the government to start doing better with the twenty days that he's got into court i think that the district court as you were as you mentioned earlier would have to decide whether the agency you know had to really produce the documents right away and when determines that so in a case like this where the agency produces the documents  burden on the government to ask the district court for more time and only if as i understand there are five fifty two a's six c romanesque to exceptional circumstances does not include delay resulting from a predictable agency workload of requests rights unless the government can show that it's making reasonable progress in reducing the backlog so how agency to have some time before the court orders it to produce documents his opportunity for the agency deal more time in this case and you know the release date he has and other cases involving similar requests as far as i'm aware judicial watch  coming to court agreed to accept the role and productions just has told the district court we think we can compete production by x date here it was march eighteenth twenty sixteen and then the district courts have then entered an order requiring production that by that day and feasible was ok and just to back up to your view of how congress intended the statute to work was you know agencies are going to have a lot of requests in this case i gather the secret service gets me or requests a day and production you go to court and then in court work it out under the supervision of the judge and if we produce the documents the person who's gone to court is not entitled to even to seems to make records available to requesters we're relying on this court's interpretation of the exceptional circumstances prong and the rest of the statutory scheme which makes clear that the twenty day deadline really just relates to administrative exhaustion well the legislative history of the statute says that congress heard from the agencies about their concern about not being able to meet that twenty day deadline and said we don't care this is too important a matter open government people are entitled to know what their government is doing and the burden on the government and you mentioned open america and as judge leventhal pointed out there's a lot of dictum in that case i just want to be clear if congress said everybody has a right to this information and the government has to figure out whether they can refuse to turn it over because it falls within one of the narrow exceptions congress provided then how can it be that an agency can over a period of time simply fail to produce this information what i'm getting at dismiss or not you but your argument is that the district court properly dismissed this even though we don't know what the situation is and hypothetically there could be i'm just trying to understand that in terms of your response and in open america i mean the court went on for pages reviewing what the agency's procedures were we have no idea basically what the we know the results but we don't know why they've done things and it might well be the secret service says look we have greater priorities all right and these requests simply are not going to be given high priority i think that judicial watch as allegations are entirely consistent with the state of the world in which the secret service is receiving a very high volume of requests they received i think almost fifteen hundred requests in fiscal year twenty fift to focus on is congress heard the agency's concerns were inundated with requests all right we don't have staff to handle and congress said we are not going to extend  helmet requester when they're going to get the answer and of course this case raises another issue that would go beyond group rate so there is there is this twenty days timeline for sure your honor but this  court has made clear that when congress imposed that timeline it was simply providing a judicial remedy that has a right to go to court for people to tell them so that even though congress thought open government was terribly important  i have to hire a lawyer pay a filing fee sit around and wait for the court's docket to get to my case and then have motions practice probably have an appeal and what point does sort of the weight of what's going on shift and is that the point of the ninth circuit's approach in terms of it's an abuse of the system exhaustion is required and says it's not right if one were to read it as limited to that question and as not resolving the question before us today about whether the twenty days deadline is also a requirement says the government must common requests and organize the information in a way that makes it easy for the agency part to produce and in some ways we're in an we're in a better world now than one point zero is not good when you know the f b i had to look through the index cards to figure out where the files were and go around the country to basically here we have you know a lot of ways to make this easier is there not an database in the secret service that organizes the costs of providing security relating to different trips where you could just say pull that out i assume there is no i'm not aware of one as so far as i'm aware your honor i think that the foyer officers at the secret service have to go to individual secret service personnel and collect things from various offices i don't think there is the government doesn't doesn't know how much it spending on official v i p travel until two dishwasher comes in and asks i think the particular they requested you know all records related to the cost and i don't think that all their records are stored in one central place but you're saying to us all they wanted was the cost in a spreadsheet they could get that much more quickly i'm not sure your honor they as far as i'm aware they didn't they never modify their requests to ask for that so i'm just not sure how that would end the government never heard of the government that maybe we could provide the information that the public is actually interested in in a much more efficient way because the government didn't feel pressure to do that i'm just not sure your honor i'm not legit and i thought that was the theory in your brief that there has to be some allegation they had fake or deliberate misconduct paying up i had pain i don't know  is that the minimum that you think is required to avoid dismissal on the pleadings some sort of intent allegation i don't know whether inten would always be required and i don't think this court necessarily needs to decide that in this case but being involved egregious circumstances pain itself did not even grant an injunction that was an amazingly horrid said one the complaint doesn't tell me how to the complaint doesn't tell me why and indeed counsel has conceded that it may just be a workload problem or there may be other reasons and on that point your honor i mean i think this case is actually pretty analogous to cases like twamley in which for example in tali the plaintiff alleged that the defendants had engaged and parallel conduct and then tacked on a conclusory allegation of an anti trust conspiracy to miscarry this is very different from tromping in that the burden is on the government to produce and if it doesn't produce to explain the burden is not on the complainant to show anything more than in practice over time of failing to meet their obligations in the sack you but they they haven't plausibly alleged a failure to that if judicial watch are entitled to discovery on this claim i suspect that there would be a lot of other requesters that would be entitled to discovery about the foyer practices does not matter how one does a production does one know the statute does not impose any production  what the government faces is having district courts issue a lot of injunctions that sort of the theory congress that you would want to be in for most of the time you want to handle it i mean how much money is spent on presidential days that sealed information in the budget process i'm i'm not sure your honor but to to see it here we just have received judicial supervision of the processing of their requests and then in judicial watch or worse to get relief or even discovery here instead we would have district courts supervising discovery into the foyer practices of it oh whole lot of agencies out there because a whole lot of people would but where courts perhaps might find any agency had been acting in a deliberate manner maybe if you had some of those then you had some good reason to think as in pain that the agency was going to continue to  responsibilities maybe then we would be in the zone where it might be appropriate to at least you know understand why someone would be charged would try to run haven't what happens is a practical matter into pieces in which the twenty days missed so the twenty days  question goes to court and says i have to go up to the secretary are going to record a court and then suppose the district or looks out and just says aren't understand why the documents have been turned over yet what does the district or do in that situation  circuit sometimes just enter an order requiring production by that date and then make sure that happens if on the other hand the district court said this is taking too long and the request was pressing too you know wouldn't agree to the agency following the government routinely misses the twenty days and then were routinely having to go to court and then every time we go to court the court just turns around immediately and says i don't understand why this is taking so long i'm going to add in our new order requiring the government to produce the documents within two weeks and the requester who brings the complaint says there is therefore a pattern or practice your set of situations in which district course have to get involved and have to enter an order requiring the production of documents ex post and that's just a waste of my time and money because i have to go to court every single time and there's no explanation for why i have to go to court every single time the district perceive there to be any explanation because the course immediately just entering an order requiring his agency to produce documents within two weeks that's a pattern or practice of foil violations and this court to which i'm bringing the pattern of practice claim to be able to enter an injunction requiring this agency to do better would your position be that just that complaint just fails to state a claim because the process is occurring just as fully envisioned it would which is that it ends up in court the court gets involved in the court enters a production order but that's all just the way for you works or what your position be well maybe in a situation there would be actionable complaint and actionable complaint stated in the complaint because we're alleging something where the courts have to enter an order every single time and that's a problem under four i think it would likely argue that the flight with them was working the way it's supposed to this court has explained that where the agency doesn't satisfy the twenty deadline what automatic right is there anything they wanted when would they be automatically out on ask me for fees because i think they would say i had to go through this alone elaborate thing of bringing a lawsuit it turned out that the minute i did it just like the last ten times the court just saw that there was nothing to the government's resistance and entered an order requiring the government to respond it's costing me money to do this now i should be entitled to fees with the government say no because there's no use in order to be tons of user has to predicate violation to they claim or is it really a matter of collecting the information and the kind of information that judicial watch has routinely been requesting in these is made available and i also would like to hear from this program i'm not one hundred percent sure about that of the bottom of the pile to shoot out a letter a standardized computerized letter judicial watch saying and then to give you these documents which would if they do that within two days application it's a good question your honor so i suppose the question is whether even without having located the documents the agency could make the determination ok we know what these documents are going to be we're going to produce them and we know you know we know kind of how this will play out i think one problem with that is that it's hard for me to see how the agency could then gather and produce all the documents without jumping judicial watch ahead of everyone else  make things available in a format that's convenient and efficient that i at the statute certainly does allow that your honor i'm not i'm not persuaded or i think it's not likely that the secret service would view these requests as simple and that judicial watch the midst dozens of oil request of the secret service was centrally requiring the secret service to you know favor judicial watch as r  if there was some automatic reduction of a form people allowed and so usual watch says all of these requests are about presidential or travel expenses changing the name from time to time who was doing the problem but once the agencies decided that well travel requests homie x official going to x country that comes within a certain exemption of the others you know don't so why couldn't i mean where is the and send it to the agency to do that something like that under the process you describe one less you file suit i think that agency i soon that the secret service doesn't enjoy being sued by judicial watch over and over and going to court i think that if if the secret service could easily set up some way t that submitted in response to judicial watch as discovery motion which the district court didn't consider but if you rely on your brief and that was another question i had sort of putting forth defenses here so you knew what secret service homeland security so the fact that these were repetitive suggests that maybe they could have been handled differently and where is the incentive for the agency ever to do that rather than just sit back and say well you know hire a lawyer and go to court i have no reason to think that the secret service does not want to you know satisfy judicial watch as requests as quickly as i can in good faith  receives many many hundreds of requests from other people as well who have an equal right to seek information from the government and with limited staff it's difficult to respond to all of those requests and also i mean you know you do and maybe they don't i mean you have an organization whose mission is a certain type of mission as opposed to somebody who has basic points that maybe i've already made that i would like to reiterate are number one there has a scheme set up through dealing with these kind of things and judicial watch is essentially seeking to make an end run around it and second i would point out that the relief that judicial watch is requesting here the people that it would hurt really are the hundreds of other people who have submitted her class many of which might not be institutional foyer of plasters who wouldn't be able to bring a broad suit like this  and you know judge pillared pillared i politics that with respect to the requests of the secret service and specifically the information that we're looking for in our complaint it does say it's a routine relatively easy to the extent which is another aspect that we would like to pursue through discovery or and the litigation process that when we did sue on this nineteen  request that had gone on to terminate her period of two years the secret service produced all records in less than four months they it really is just to clarify if they kept a database anticipating the v i p travel requests would be coming in for your request would be coming in and they just had a field that said you know trip to asked ben hotel meals you know transportation and produce that to you on a regular basis particular regularly failing refusing to produce requested records within the time periods record required by foyle so that your do you think that the the agency is required to produce documents within some production of documents not to determine i apologize i don't whether i'm drawing a blank or i just don't have it right in front of me and i would have to get back to you i'm going with honest with you that and just sort of follow up on the simplicity  routine non complex work requests that are at issue here and actually the reason that we didn't pursue and are seeking would like to pursue litigation in discovery on a policy and practice to your question though as what more would need to be pled in the complaint to make it a well placed complaint or so at least she said something more something that would be a little bit more reach the showing that they were  t they were continuing to shirk their responsibilities since the filing of this complaint we have filed additional complaint of her total of fifty two requests that have gone undetermined and that is for a