thank you your honor may please the court my name is bill temp going i am counsel for appellant central foundation south central foundation brought this action to vindicate the government stripes that congress granted to aid under s on three twenty five dollars of public law one o five dash eighty three dollars the federal law creating a statewide tribal health consortium the alaska native tribal health consortium array and  plain language the purpose and the legislative history of such in three hundred and twenty five dollars all indicate that congress intended to give the tribal entities that formed the consortium and that particular paid in the consortium including south central foundation governance and management rights in a n t c they were all given a seat at the table a in th he violated section three hundred and twenty five and ensured south central foundation when it did two things one it delegated the full power of the board to a hand picked executive committee and two erected barriers to the information that f c f could obtain essent several reasons st of all it's not moot because of the voluntary cessation doctrine that's a doctrine that stablish is that a defendant's voluntary sussed cessation of the challenge of practice doesn't deprive a federal court of its power to determine the legality of the practice under that doctrine a in t h c has what the court calls a stringent and heavy bur present evidence to show that it is quote absolutely clear that the offending conduct will not recur and in this case she fails that standard miserably st of all has continued throughout this lawsuit including in its cross posting for summary judgment to argue that the establishment of the executive committee in the way it it was entirely legal so it's not backtracking from its position that it could continue to do this or that the problem could  frankly for one primary purpose which was secretly to get mr tuber the c e o in the board share a lucrative new employment contract in the dark of night without notice to the board without the requirement of board approval or ratification he accomplished that with the executive committee once frankly the only time they got rid of the executive committee was after the lawsuit was filed and there's separate cases that say mere cessation of illegal activity in response to pending litigation does not move the case but more importantly what they've adopted what do you want what more can they do well i think it's still a right dispute a real case or controversy your honor what they've really done since they changed the by law with respect to the executive committee is they simply it's sort of three the executive or not room know that what they've done is they've taken the compensation responsibility from the executive committee once we call them on it and move it to a different committee the i think ultimately the the board would have to ratify the contract but the problems persist because they do the compensation process in secret and the  controls who gets on various committees so essentially what they've done in the guise of the leadership in planning committee is to repeat what they did in the dark of night with the executive committe and give it to a subset of the board to make decisions whether it's called the executive committee or the leadership in planning committee or the in the dark of night committee change the bylaws tomorrow they they have the votes i mean one of the the themes throughout this case is eighty eight she's allegation that s c f is trying to somehow control d the consortium and as we said in our papers we have but one vote out of fifteen that's not what we're trying to do what we're trying to do is indicate the rights that congress promised us under section three hundred and twenty five dollars and i think in it in less we get an order from the courts saying that what they did violated three hundred and twenty five and was illegal i think there is nothing that will protect us from them changing the bylaws the day after the court rule talks in terms of the members each having a vote yes your honor it says that every each of the regional tribal health organizations represented on the board can designate a director and each director gets one vote and so you'd like us to say that moving those functions of the full voting function of each of those members yes your right your honor the right to participate in the governance and operations of the consortium and just to be clear what they did up sorry you're out of it just to be clear what they did is they set up an executive committee and specifically provided that the executive committee could meet without st thought had the th already of the board but more importantly could meet without giving notice to the the other ten directors who were not on the executive committee and that's exactly what happened as they met in the dark of night and within twenty four hours gave mr tuber a new contract that increased his salary from my one hundred and ten thousand dollars to a one million court when when we had the summary judgment beauchamp's the night before the hearing he sent a series of question to us and one of them was can you tell me can you find any other statute federal statute that is similar to this and i think both sides spent many hours late the night looking and frankly didn't find one so i think the short answer is this is sui generous it is painted on the unique background of the tribal health system in alaska i do think that because the the statute has explicit provisions regarding governance i do think that if we do it it is analogous so to hear our governance rights are illusory if as a in t h c did here it imposed all sorts of draconian information barriers that not only prevented our designated director from sharing critical information with s c f and the s c f forward but in many instances even precluded the directors themselves from getting access to the information because the executives  the cases that the district court relied on are clearly distinguishable of the whole notion that there's a there's a big difference here between for example a direct governance if say it a concrete right that we have under the statute as compared to for example the cases like wilderness society those are cases and some of the other ones where as the the  the supreme court has held that if you have a procedural right in vacuo if there's no concrete interest affected i get it that's not enough for article three standing but in this case this is not some generalized diffuse injuries suffered by every member of the public this is a spat you calls out by name south central foundation and twelve other regional tribal health organizations nothing could be more particularly nothing could be corporations was the key to the participants in the course consortium do each of them correspond to a particular regional corporation not necessarily your honor the south central foundation was formed pursuant to the tribal authority of one of the regional corporations cook inlet region and as you read in the statute  i delegate to the tribal authorities south central foundation of south central foundation as a tribe organization organized under the self determination act enters into a compact in funding agreement with the federal government the other tribal health organizations did not as far as i know did not get their delegations directly from the other regional corporations in other instances they got their tribal authority from federally recognized tribes in those regions so it's a little bit of a mix and match but if it is not the thirteen tribal health organizations identified in the statute are not suppose we should let the belly argue and then although your time is technically up has a twenty seconds give you two minutes o for alaska natives throughout the entire state and it raises significant issues related to governance are novel but the question actually i'm sorry just bear you know i can hear you perfectly well ok great thanks but the but the quick but the issue the quote before the court today is actually much narrower and much less novel and that is a question of standards and even more specifically  order from which this appeal case and properly decided and i make that distinction because there are so many issues and so many arguments that appellant's hear it raised in the st instance in their appeal so what i propose to do is talk so me just run through a couple of facts here because i think they're it's really important to have these and that is where starting with the creation of the executive committee in the st instance which was a thirteen to two vote this is not our dark of but that's a different question and just in which the record indicates and i'm referring here to a c r it's forty eight dollars if a declaration from one of the other members of the board at the time we said we spent a couple hours on this issue going through it page by page i didn't feel pressured to vote a certain way when i voted in support of the untracked so they can make that accusation but the fact the record of the matter is that's not there or executive committee was acting without ratification and constantly without an opportunity for their board or their designated director to vote and how nd the evidence indicates that there was a there was a majority that supported this and no indication that supports their position guidelines well i think it may but but i but if i but if i may i think there may be some confusion about the record because the fact is that there's never been a time when there's been this kind of don't want to i don't want to be fighting against whether there's some difference here too much because the record in the case is there in fact was no actual harm and no imminent risk of the executive committee doing something you are with a with because as of more than a year before the time this complaint was filed the board was on this very d issue acting as a whole or it did not there were there was a separate meeting in december of two thousand and fifteen where the board d of all the committees got together for a discussion but the board d as a whole didn't vote anything until they all voted together so there was again like i don't i don't want to i said i don't want to i don't want to be pushing back too much on exactly what interpretation here is as honest any issue i don't see judge school anymore so i may be having some technical director here i looks like we've got disconnected i can try to call him and get him back as soon as possible busy i just heard from judge gould's assistant he is trying to come back now as we speak strongest evidence here that in addition to the action of the board has taken on this point which even s p f conceives is sufficient is the fact that the board had stopped using the executive committee in a way and so i'm trying to figure out what do we look at to try to answer this question informational untrue because it does seem that access to information is very closely linked  so i the the suggestion of the argument that c f s me on this point is that when she went to court of law and that directors need a lot of information to government cetera  i certainly agree that that's not what we're talking about here what we're talking about here and what s c f is trying to persuade the court here is that not only are the directors in title two of the two a lot of information they are the information that goes to the port need not be given to each member of the consortium before they vote doesn't each member with a vote to have a right to a reasonable amount to a reasonable degree of information to him for there to inform their vote the board members do the board members absolutely do and and entity provides i mean that's not the issue that there isn't a question here about or numbers saying we're not getting enough information this is a situation where where we get all the information that the board member gives and that's inconsistent with a order that is made up of individuals who have a common statewide mission and a common duty of loyalty because it brings the entities into the boardroom in to achieve has recognized the importance of this representation rule and in their code of conduct they have a duty of representation or all board members are members up to date information to the you with the technical difficulties so if you want to take another two minutes it can then we'll hear from the pentagon thank you  right to form into each state to participate in it and its mission when it came to section b which is the only section that talks about governance it was for the one time only were governance you talked about persons being on a board of here a couple of things just at the very end to address my french statement about directors vs the end of these it's clear from the legislative history as you see in in our brief and in the record that congress indisputably wanted these tribal health entities in the order it wanted the governance to be based on the expertise of the tribal health and entities who have been providing health services around the state of alaska for decades if it was not that they wanted one individual stock in the boardroom and unable to get information and be consult with his or persons under the law as well corporations or persons under the law as well there's no indication that that congress intended the corporate structure the corporate governance structure of designated and frankly just on one other point that my friend raised he says that it's it's not a question of the board members getting information it's only a question of the entities getting information the record will show that that the s c f designated director were were now what five plus years since the executive committee action in two thousand and fourteen i believe it is in the record to the effect that the designated director for  f has still not seen the offending contract that was in or been to in the dark of night with mr toogood because it's been stamped as confidential and they have basically told her that she if she authority on the board has to have the ability to consult with his or her designating entity to determine what in the views in the in the judgment of that designating it entity in the best interest of the consortium and there's a lot of red herrings that are thrown about this whole idea of competitive doesn't everything else s c f has recognized in the knowledge throughout the litigation that if there is a bona fide conflict of interest if in the rare instance where there is a conflict of interest between south central foundation and the consortium that obviously that information would not be shared with  but we believe that it is impossible for the tribal health and these to bring to bear or their knowledge and expertise for the benefit of the consortium and for the benefit of the thousands of alaska natives and american in the interest whose health services are providing if they are kept in the dark and not allowed to know any information about the consortium because mr tumour or other we we have asserted and continue to assert that s c ept is the proper plaintiff year and has standing to vindicate its own rights its its governance rights and its related informational rights  but it is not a member of the board of directors the director but the point about is should the director be made party political well we did we did say to the district court below that we undisputed that the designated directors would have standing i think the district court acknowledge that i think she concedes that what happened here is the district court dismissed our case on the pleadings on standing grounds without leave to amend which we think was improper so if the court and again i reiterate we believe that we have standing i think a lot of the discussion we've gotten into in the last ten minutes has conflated merits and standing and i think the district court fell into that same trap there i think a lot of what we're talking about in terms of the the governance issues are really more a merits question than the question of whether s c three minute extension that i gave so we need to bring this to a conclusion about i give it as i say a post by saying we believe that we have  as to the informational barriers if that if this panel disagrees and if the panel thinks that s p f does not have standing then as we suggested to the