you profits how do you respond to that well your honor that that there's nothing special about this the reason there is something special is and why it's not a parodic manic kickback is that those cases typically involve  an effort to steer business to a third party in exchange for money or commissions in this case the reason it doesn't fit in this but it was it was improving the terms of the existing business while the facts are that  well let me if i may i see my time's running out if i'm going to have an answer the question i do have a couple points first of all the the evidence showed in the government accepted below and indeed argued that there was an interest that was conveyed to mr tanner according to the evidence that would have occurred in late two thousand and thirteen and that was long before any negotiations regarding the sale of this option and indeed mr tanner had no role in valiant's decision to acquire the philadelphia option in the first place but it is fair to say that since he and he since he negotiated a four company and he had a percentage of it so in the end when he got nine point seven million dollars has his share of the sale he was getting at least to some increment well you have more money because of what he had done but that would be true in any case that merely involved in undisclosed self interest and skilling his crystal clear that an undisclosed self interest is insufficient under the honest services fraud statute and what's more this is not as i was  this is not a typical third party situation because valiant put tanner there precisely for him to help grow fill a door they they were heavily invested in having him act in fill in the words interests they  were it's just not a typical situation with an arm's length relationship with a third party vendor and that's what puts it outside the parodic manic case could i just take one minute to talk about the jury instruction judge i think the defects in the jury instruction present a separate substantial question and the defects in this instruction a very similar to those that mr silver raised in his pending appeal in which this court granted bail last and we all that there was no objection to it in this case that's correct your honor of your for playing error that's correct your honor but and the silver situation is one in which the law arguably either changed or became clearer and therefore be very hard to that the judge committed plain error with this charge well i disagree with that your honor because this first of all i don't think the silver this particular argument the silver case is based on mcdonald's based on older cases like sun diamond and evans which require the quid pro quo exchange but moreover in the case here the damn court and tanner trial occurred after mcdonnell anyway so we're not relying on any new law even if that made a difference it's been well settled for decades that a quid pro quo were choir's in exchange and this instruction was even worse than the one in silver because whereas the one in silver did to rick or the jury to make a finding that mr silver in accepting or s ting a payment had an understanding that he was expected to do something for the pay or here the instruction at least as to mr davenport didn't contain any such requirement and indeed the instruction was entirely focused on mr tanner state of mind and that is a very serious problem and it raises a strong risk that the jury could have convicted even if they thought that mr to mr davenport merely conveyed can convey the payments  denied but as that he's a flight risk or anything of the sort correct it's completely undisputed he's a fifty one year old individual with a family and strong ties to the community he also has serious har thank you good morning may it please the court i'm assisting united states attorney richard cooper i represent the united states in the district court and here on appeal going first to your honor's questions and points about the uniqueness or non uniqueness of this case this was a straightforward bribery and kickback case it was charged as such i was proving to the jury as such the jury was instructed that on the  isn't something that necessarily reflects on whether there was a quid pro quo and here's how the law on that we haven't been able to find anything on the precise order and there was no you haven't found anything on it that is they say the issue one of the issues in this case and therefore why why would why would we allow bail while the matter is thrashed out before another panel this court the order of the qu well your honor was never argued but below by defense counsel there was never an objection raised to the instruction on water bribery or kickback was which is where one would expect to see that so that it was not an issue below in this case and to the extent the will take up most of that time how do you respond to that well under thirty one forty three b the statute governing motions for bill pending appeal detention is mandatory congress's said it's mandatory unless the defense carries a burden of persuasion both that there's a substantial question and that if that those questions are resolved in their favor they were it would result in a in of a caterer like this the government would not even oppose panel given there is nothing unique about this case tanner was never instructed as as counsel suggested it was never instructed to act in philip morris interests there's no record evidence for that in fact the evidence in the record and including testimony from mr tanner's supervisor and from the chief compliance officer of valiant was that he was instructed to act in valiance interests at all time and that his employers at valiant believed him to be doing so and relied on him to do  so in addition but did they rely upon him to act on behalf and against the interests of fill a door and something to do or was a competitor because  with with due respect to two opposing counsel the the evidence at trial was that tanner was the relationship manager at valiant responsible for supervising people and when she should managers not assigned to blow up a relationship that's that's correct your honor but there are two examples or three examples that we prove to the jury where the interests were adverse one point five percent to three point five percent second ten or supervisors ordered him to diversify in other words find other pharmacies in addition to fill it or the value could form a relationship with to reduce valiance reliance on killing or tanner declined to do so and in fact the e mail evidence in this case showed that tanner went to meet with potential competitors of philadelphia or and then provided information that he gained from them to davenport so there are circumstances where the interests of valiant and fill it or are not aligned including in the negotiations over the option agreement where valiant was acquiring an option to purchase fill it or a dollar more for valiant there would be a dollar less for philadelphia in that situation mr tanner provided secret advice and assistance to  davenport using the secret e mail account as he my time is almost up if i can make just a few additional points already thank you your honor so first the instructional issues that really goes to the substantive a services fraud point unlike in the silver case here there was an honest and honest services fraud conspiracy charge which necessarily require the jury to find an agreement a meeting of the minds agreement between  tanner and and davenport that was not present in silver and that really disposes of the instructional challenge because whatever the court believes of the merits of that challenge on count one the honest services fraud conspiracy count the jury necessarily had to find an agreement if i could as also say in response to your honor's first question to my adversary on bribery being the core of the travel back count both on the services fraud substantive and conspiracy counts here were also charged as bribery and kickback counts so the entire case was charged and tried to be curious sounds to me as though the appellate argument which of course would be heard by a panel other than this one is whether whether by its nature it really is a kickback client or whether it is one of those on the services amorphous on the services is really nothing other than a hotel room and i mean on the one point in addition to those two things your honor the nine point seven million dollars that the corpus of the main payment from davenport to tanner it began its journey in a bank account in new york and that was proven to the jury through a stipulation here in addition on the travel act count it was charged as a conspiracy so it doesn't require completion of the underlying offense what it requires is an agreement to use interstate  facilities to facilitate the commission of the underlying offense so not only do we have sufficient nexus to new york but that's not necessarily required for the government to prove a conspiracy count here and the defense needs to overcome the hurdles on the travel and conspiracy and the honest services fraud conspiracy in order to to get bail pending appeal here given that a concurrent sentence was given on all four counts thank you thank you both will reserve decision is kind of off the clock but it's a question we've been asking us this week we're a little confused by this is a civil case i gather this is a civil case and the question is i think everybody agrees that the department of homeland security was never required to adopt a doc a policy and i believe everybody agrees that there is nothing in the law that requires the agency to maintain the policy now when the policy was it dumped it in two thousand and twelve it was explicitly adopted as an exercise of enforcement discretion is the only basis of authority that was cited and written to and of course this is really background but it goes to the narrative and then is am i correct i mean we've been told that the department of homeland security has the capacity the physical ability to remove less than four percent of background and have i stated it more or less correctly i can't speak to the precise percentage but yes i thought i think it's generally understood it is not as though it's it's either everybody goes or some people go we all know that even assuming it was would be perfect for people who are here legally not to be here the government doesn't have the physical ability to accomplish that now agency intends to exercise its discretion prospectively and where as the two thousand and twelve memo advises the h a staff to consider exercising prosecutorial discretion with respect to individuals meeting certain identify criteria not to consider those criteria when exercising their prosecutorial discretion i don't think he can be put better than that the memo the first my most said when you're exercising your discretion i want you to take this into account the when the policy is recent that it says don't take those factors into account that is what's happening here this is a when  there is controversy as to whether i'm we think it's clear but this record believed otherwise that when acting secretary to crease in the policy what she said was that she was taking into account this but whether or not it is i'm looking at the fifth circuit the solution and predictably if there's going to be trouble and i have a minimum there are serious doubts and any sort of doubt about that on that score i think is out after the on this quick or decision in this case it was issued in response to a request from the district court in the district of columbia and spend it there it's obviously a matter subject to this court's notice and we think that since it is the view of the department of homeland security about the docket policy  mean that secretary chu acting secretary chu looked at the policy considered the advice of the term you john wrote look to what had happened in the fifth circuit where not only had been enjoined finding what she did but what is the reason the reasoning was the reasoning behind her sending a policy i don't know if there isn't a whole lot more reasoning stated of homeland security and eeles with something that is confided to her discretion but this is something odd about your argument because you know you're arguing in your papers that and you have good reason seem to argue that the this is the type of agency action that can't be reviewed because there's no standard of review to apply and yet same time you're saying that it's ok to do this because  the because review was conducted and in another circuit and and the government agrees with the ruling on top but if if you're consistent you would care what the ruling was on t these other considerations only come in at the point where a court thinks it is reviewable we don't we think that it's a decision it's prosecutorial discretion it couldn't be more clearly a policy that got that and you know various groups or states came to the secretary of good part of homeland security and said you should adopt this kind of forbearance policy and the secretary says i don't want or the secretary says i'm not answering you where the secretary said good idea but i don't think that i have the authority nobody i think thinks that you could go get your dish will review of that i mean our situation is there was a policy that's right but by adopting one policy of i'm for smooth discretion the secretary does not box her successor in any way that they have you know a prosecutor who believes that a particular statute is unconstitutional or doesn't cover certain kinds of offenses and may say so maybe the attorney general issues a memo to that effect to subsequent attorney general is absolutely free to reject that the government would be in a different position if it had given a different explanation or justification for sending but  gave a reason that frankly i don't think makes sense and and so that's why we're in this situation right now when you're on we think that the supreme court's decision  brotherhood of locomotive engineers makes clear that the fact that a agency gives a reason for an otherwise on reviewable decision does not make it reviewable and that makes total sense i mean the if secretary acting secretary took and said nothing there would be no basis to review i mean when the dot but when the doc a pulse he was adopted in two thousand and twelve there's not a lot of elaborate discussion that goes on is basically the agency says this is within my prosecutorial discretion and i'm doing it and so of the acting secretary didn't need to say any more than that and the fact that terri said i think that doctor is unconstitutional well and aren't aren't we in a position to judge whether that's right or wrong well again i think that it doesn't matter what she said and that's would be ellie america's no it doesn't she didn't need to say anything and the fact that she said that and she didn't say that oppose unconstitutional but the fact that she said that does not here what we have is it the sign is it not matter what she said that because if a decision is not reviewable the whole point of the decision not being reviewable is that it's not subject to review and if the secretary says nothing weren't there wasn't much discussion about it was it was very short and a push clearly it was clearly stated this is an exercise of prosecutorial discretion that was the only justification ever those proceedings and whether to to remove people not in individual cases i mean the question in both the law but that's preserved in other words there's nothing in t whether it's preserved or not whether it's in joint or not that interferes with the ability of this administration or any administration to to to to designate people for there is an instruction to from the secretary to when foresman officers about criteria to take into account so while in while there is no nothing in the eye  that specifically precludes the exercise of discretion in a particular case the question is whether the secretary can say for very large numbers of people on a categorical basis the different criteria are going to apply and we think that the answer is no but it doesn't matter whether the court agrees with that the question  whether it's reviewable and b whether assuming that it is reviewable the secretary had a minimum a reason to think that there was substantial legal question and a secretary said she would be even assuming that the supreme court were ultimately to say the dhaka was permitted by the i and a she would not do it that she thinks that it regulation i also mean it's i mean yes as a practical matter that's correct result for a different reason and i find it puzzling richard you've been litigating all over the country including here for the last year and the judges assuring do this you just do the right way not the wrong or maybe as wrong once you do it always i mean that would be one pot possible way of doing it it is not the typical way of doing it when an agency may be entirely wrong but it's a way in getting done what i don't mean wrong i mean unusual i mean according to you and i'm not sure at all that you along all that would be necessary to promulgated a recession is just to say it is here by rescinded and it's no statement of reasons memo to the extent that the core belief that something more should have been done something more has been done question is whether something less should be done while there whether the same the same memo issued without explanation would as as you're articulating it be an reviewable not be subject to review and be not reviewed i mean again i mean at this point since we know what the views of the department of homeland security are it would be somewhat ironic to take the case back and say this time i'm doing it with no reasons i mean that that would be odd but the more important point is that by offering a reason and b only is very clear on this but offering a reason for what the secretary did that those who make an otherwise non review c versus railway engineers that's exactly right and if he you know and this is not a case in which the agency is being circumscribed by sort of discretion and the fact that the secretary instead of saying nothing said something doesn't make it reviewable and what the secretary said was if the court were to get there is reasonable and certainly under any sort of recognized interim within assuming there is a review it sort of the certainly adequate in a case like this one isn't it true and perhaps ironic by this court the basis for the injunction ceases to exist and so you're saying that that may if if as to that part of it were we to reverse that might include  to absolutely i mean we think that the member i mean the district court the basis of the district court's injunction and you think it's flat out wrong if the court shouldn't have like the decision wasn't subject to review if it was objecting to review the court erred in thinking that it was unreasonable and all of that has been confirmed by the that no court may hear any claim arising out of a decision by the secretary to to commence removal proceedings or to prosecute them or actually to effect removal and that and that therefore the eastern district of federal courts like jurisdiction to challenge the the recession but doesn't doesn't jennings on and on the length of detention which certainly as is closely related to those things and i thought i'm my question is the supreme court says it's limited it's limited to commencement prosecution and removal and would not include what you were arguing on well i mean to be clear this is an independent basis for non review ability but the i mean i think that i think you're walking backward no your honor i think i'm just trying to make clear that the two operate independently but i think that the point about all fifty two g is that and if you imagine that somebody like in sort of like somebody who is current lee under of sort of the day before a proceeding was going to commence brought it collateral action to enjoying the proceeding from going forward without considering the sort of like the doc criteria the bar twelve fifty two gene and that's what we think well i mean i understand that like this is sort of for a i mean we don't think it should be a nationwide or junction we think it should be limited to good morning your honor as may please the court and he should descriptive for the state plaintiff's i'll be sharing time with counsel for the plaintiffs in the i will address why plaintiff's claims are reviewable why the district court's preliminary injunction was appropriate in scope and why plaintiffs have pleaded a viable equal protection claim miss show in counsel for al will address why plaintiffs have shown a likelihood of success on the merits of their a p a claim and miss what sheen simply don't apply when the agency disavows discretion by announcing it has no discretion to exercise the supreme court recognized that possibility in cheney footnote four and the d c circuit and the ninth circuit have applied that principle in several cases here defendants disavowed any discretion to continue the docket policy by announcing that the policy was unlawful that was a legal determination about the scope of their authority that is not committed to their discretion and there is lot outside the they would be exercising their discretion here they said they had discretion to exercise they drew a conclusion about the legal scope of their authority and congress has made those kinds of legal determination in this review because it  determined daca was unlawful it was to announce a legal determination and that's what's crucial about this determination that makes it reviewable defendants don't want to issue a determination purely on the basis of discretion even though they've been invited explained to us by the government why they don't want to do that for the record makes evident that what what they have sought to do was to explain their actions in terms of a legal authority to continue an overwhelmingly popular policy with far reaching economic benefits and this is starting to get into politics your answer that question is trying to get into politics whether it's popular or unpopular has nothing to do with the power of the secretary of homeland security so let's just let's just keep to that well it explains perhaps why defendants have repeatedly declined to exercise their discretion and take responsibility even though they've been specifically invited to by multiple district that's right your honor that's right and there are good reasons why congress wanted to make an agency determination about legal authority reviewable that's because the agency should not be the final arbiter of its own compliance with the law that's the task of the courts and that's not in any way inconsistent with cheney nothing in those decisions suggests otherwise cheney addressed purely discretionary actions discretionary denial of a motion to consider and in cheney in agencies exercise of its inherent discretion but they haven't here they have not withdrawn it as an act of prosecutorial discretion they have withdrawn it based on a legal determination that they lacked discretion the first place of this is not a situation where there were there was there was to terminations as to what it considers a proper exercise of the constitution i mean every branch of government can determine for itself whether it wants to take an action that it considers to be unconstitutional or first that that circuit never reached the constitutional claims there so e g sessions his claim that they did was wrong and second of course the defendants remain free to set their own in foresman priorities and if that is all they had done we would have been under review  and what that means is that the reason well the session said it was unlawful by case discretion did they say it or do they suggest they said that there was evidence that had been presented in the district court on a preliminary basis that suggested that so the doctor memo specifically says it's to be an exercise of individualized discretion they said there was some evidence that suggested it wasn't we now know based on information in the public record that was wrong and defendants knew that all along but it's still the case that no court  sdiction to hear a claim on behalf of any alien arising from the decision or action by the attorney general to commence proceedings or to prosecute proceedings or to to effect execute country and you know with one hundred thousand possible plaintiffs judge shopping gets very easy with one hundred thousand possible plaintiffs you can become a shopaholic so the fact that any number of judges have said a thing because these cases were brought to them doesn't really short circuit the the analysis that is justified but the supreme court has made very clear that that language in twelve fifty two g applies only to those three discrete acts doctor policy or the terminations of the policy is one of those discrete acts because darpa was never a defense to removal and so nothing in litigation about the legal deter nation about the legality of the doctor policy  why it's not a bar that the bottom i'm wondering sort of what there is here what there is here i take it then is simply what would an agent should consider when deciding whether to  not considering what persons to designate well it allowed to move it allowed people to get certain important benefits like work authorization under collateral federal regulations without waiting to be put into removal proceedings and its social security numbers and a whole bunch of action a bunch of and it's and it's those and those that's important during the period of time someone is here but it doesn't really impact the the power of the the attorney general or homeland security to designate an individual basis who should be removed that's right your hon an agency invokes the law as a reason for its actions and says it doesn't have discretion it is neither exercising discretion within the meaning of committed to agency discretion by law nor is in fact  doing something in a realm where there is no law to applies to the two things that need to be satisfied for review under seven zero one eight two are satisfied you said you were going to talk about the scope of the injunction that's right but what's at issue here about that i mean if an injunction is appropriate i'm not sure i don't understand the issue with relative to the scope that's great your honor because we believe that the scope of the preliminary injunction which defendants have attacked as overbroad was clearly within the scope of the district court's discretion because the district court tethered the scope of the injunction very carefully to findings in the record about the nature of the harms and the impossibility of crafting a neverwhere injunction that would be it's wrestled very carefully with this question he wrestled carefully with the question of whether there was any possible narrower injunction that would adequately protect sixteen states the district of columbia and organizational plaintiffs and he concluded that based largely on the nature of the harms showed there was no way to do that because the state plaintiffs here showed irreparable harm as to among other things their interests in their capacity as employers and operators of universities and they recruit nationwide and judge care if it was determined based on the evidence that was presented to him that it was impossible to craft an injunction that was limited only to current residents of the state's current students current employees because you could have an individual who states have sunk a lot of resources into recruiting for a unique position and if that person's daca expires before they become a an actual in rolled student or actual employer the state would be disrupted and would lose money and so the only way in light of the number of people who would have to be covered was an injunction of the scope we have within the plaintiff's group we're talking about over two thousand people that would need to be covered under even the narrow injunction the defendants propose and judge care if it's very reasonably concluded that a person by person injunction directed at such a large number of people would be would be impossible it wouldn't actually protect the states against all the harm that they've showed that they would suffer and it would not be possible to administer and that was within his authority as equitable authority he didn't abuse his discretion defendants haven't explained or demonstrated that any narrow injunction would be sufficiently protective remarkable and so this is not a case where a district court judge just entered a nationwide injunction based on a thing showing of harm by a single point of it's very different  you know you're you're going to win it's a tricky issue before the court does not need to confront it here also because the plaintiffs had moved for classification and the district court denied that motion as moot without prejudice to renew when it concluded that it we have still not received the administrative record all of defendants obligations to produce the administrative record or any discovery have been stated since october twenty seventeen and they have not provided anything so what we're doing here  district court correctly declined to dismiss plaintiffs equal protection claim and that's because we've adequately alleged sufficient circumstantial evidence that supports an inference that the termination was at least partly motivated by animus against of latino's we alleged a number  and statements which taken together raise a plausible inference of invidious discrimination for example we alleged facts showing that defendants change their public stance abruptly that the reasons they gave were riddled with errors for example  g sessions letter wrongly claiming that courts had found policies like dhaka unconstitutional we now also know from information in the public record that although the acting secretary's terminations said she was unable to identify any discretionary denials  the memorandum contemplated that this would be individualized case by case decision making she had been unable to find any instance of a person who met the criteria for dhaka and yet w circuit observed in regents this a prop change of position in error filled process shows that the decision was made without the kind of care and consideration that would ordinarily characterize a decision of this economic and social significance and that raises a plausible inference that negative attitudes towards latino is at least partly motivated defendant's actions and that inference is sharpened by negative statements that the president has made about what he knows and the fact that the decision no that would not be sufficient either because as all explain the defendants had to also because this was a reversal in policy under encino motorcars defendants had  do is go back to the drawing board and issue something that does not contain these erroneous statements and you're saying even if they go back to the drawing board and issue something that does not contain statements that you no rights so you're saying it creates in the long term right it's based upon the lines the plaintiffs and hundreds of thousands of other just took into account the launch interest groups that came up with ways to try and address that no it doesn't because actually in attorney general sessions letter he explains that this is because this is for the convenience of the department of homeland hundred thirteen businesses that employ dr recipients the economy would lose more than three hundred fifty billion dollars defendants also never considered the impact of the doctor terminations on cooperation with law reason why the term nation was arbitrary capricious under the framework and motorcars which is the frame to look to in this case given that it's a reversal in policy and not running on a clean slate well let me give you  hypothetical for one secretary an attorney general says we're going to prioritize violent offenders and there are so many of them a pathetic going that that's all we're going to do and the next person to take office says well we're going to actually we're going to hand white collar criminals because they undermine our financial system on which everyone lies can they do that  is that that that might upset the reliance interests of white collar criminals who may have pled guilty without understanding that that could that could make them so vulnerable to removal they can do that however we're just making a procedural point that in this case where you have reliance interests and individuals who very reasonably relied on this program the government told them to come out of the shadows and to participate in dhaka even president trump himself our clients and like many others that he would take care of them and deal with this with part and so and yet and yet nothing there's nothing in in dhaka or in the could participate and they could get these benefits and so you don't have a sort of individual eyes determination you rather have an extremely large policy that that individual it's it's not an implicit instruction to that effect it instead is it's certainly dr recipients understood that the program could ended any time and as i said we're certainly not disputing that the secretary has the authority to end the program the problem here is how the secretary did it both in terms of not considering these huge policy impacts that are just completely absent from the duke memorandum but also because this legal reasoning was not adequately justified so i want to return to that point and specifically the texas decision and the problem here as judge bates recognized is that is that the texas decision is first of all it's about a different deferred action program it's about the da pup program and this is this addresses a different population from the doc up program but furthermore the reason it's an exercise  say oh well if it's yeah but i think when it's said that it creates a new status and saying it creates a status outside the i and therefore in a legal one the other the other issue is not a characteristic of a status is is you the issue here is that doctor recipients as was mentioned by my colleague also do not have the ability it's not a defense to remove all in addition and so that's the difference if you have a status then you're not going to be removed from the country so that those of the clear and doctor doesn't create a status because it doesn't it doesn't protect people from big that is correct yes and that's why so doc all doctor does is it just says we're these people are not going to be you know we're going to do you prioritize these people and we're going to by administrative regulation give lawful presence and work authorization social security etc and so that is why the fifth circuit reasoning was mistaken and more problematically defendants realize this defendants went to the supreme court in two thousand and sixteen and they argue that this was the case and yet here they are in twenty seventeen saying that texas they're just citing to texas as if it's completely persuasive to them and as and as if it is a political to this deferred action program which is just inked meaningfully from the dop a program that was at issue in texas and so it's sort of a to explain why it was relying on texas or like what i texas is allows them to come to the conclusion that doc is unlawful with the conclusion the doc is unconstitutional there is no justification because texas didn't even reach that question with the conclusion that doc is unlawful we have a gap here because texas stands for the proposition at if even if the fifth circuit were right texas stands for the proposition that the da pup program  well here the other  hundred ninety one thousand individuals is that because people can't renew those are the individuals who have been able to continue renewing under the existing injunction and thank you i'm sorry no problem you had to find this decision too her two young us citizen children she also would have been able to continue making payments for the family home that she purchased because of dhaka similarly plaintive martine but who is also here i'm not sure effect our plaintiffs and the thousands of other dhaka recipients could have lost their opportunities to continue financing their education pursuing their careers and supporting their relatives in the us whether they are to us and children relatives or other siblings in stark contrast the government's interest and initiating the wind out according to their timeline is not supported by neither the public classified the government's not intrude upon the government's discretion to do so they can continue to revoke an individual's deferred action for change factual circumstances after the grant wherever they believe that that is necessary this injunction only of that would be change revoke an individuals who has been granted they could also change daca through a permissible and even even without revoking docket that they could commence removal proceedings that is correct as their lawful authority for them to set immigration enforcement policies but because the talk of terminations was rooted not and their discretion or an immigration enforcement party it was rooted in a flawed assessment regarding  not as compelling as a significant harm that would have been imposed on the hundreds of thousands of a talker recipients these are individuals who are americans and all but status we respectfully ask you to affirm the lower court's injunction and california litigation in this court i mean what happened the it's been the district court of bridget said that that the administrative record the push submitted was not in the court's view the full administrative the ninth circuit case in the supreme court's sort of question it would be wise to address the merits before dealing with eschewing forks beyond the brecker the district court here stayed the orders expanding the record we think that the record such as it exists as has been information produced in the other cases that has not been produced in this case in particular the information regarding  twenty percent of the nile's i think the i'm sorry i just don't know the answer to that but it can i don't know whether that should be part of the a minister i don't think i certainly think it should not be part of the administrative record  nothing i mean it was cited here as being relevant to an equal but actions just and shifted decision says it's automatic but there are so there's information that contradicts that they would think that would be should be part of a new you're under again this is the what this hinges on and mean that's not that really was not the basis for the q memorandum it certainly is not the basis for the subsequent nielson memorandum and v i don't understand what that statistic which was offered in connection with an equal protection challenge has to do with equal protection but the point here is that this is an exercise of prosecutorial discretion you don't compile the ministry to find i think i was on the i think i was on the panel that dealt with the mandamus petition and more than one of us may have been and i think that the the better part of wisdom that emerged from that was that before we get into those kinds of disputes let's find out if there is a jurisdiction and let's find out whether the claims when it sta claim and then and then afterwards if you if you lose on all of that you can hew can find all day long with all i think that's right and that's what the supreme court suggested also and that's how we here now in the just like to sort of deal obviously and with any questions to court has but to sort of just sort of various statements that were made first in cheney th specifically says that the fact that an agency expresses a few in the course of a legal view in the course of issuing an otherwise non reviewable decision does be a good idea to do this and the secretary said i don't think i have the authority nobody thinks that could have given rise to in in action for review one point  the council suggested that more should review for compliance with the law that's exactly what we don't have here is an action to seek review of compliance with the law nobody claims that the law a protected exercise of discretion that has been exercise that's right and the but so that's why we think the characterization of asking this court to ensure that the agency complies with the but there were two but there was a stink docket component to it and so my only point is that it will vet the fifth states is just that the fifth circuits decision has no light on that court's view of  i think is incorrect on the equal protection and ansal says that there's been enough to create a plausible inference of a negative attitude now that is not a standard that i believe can be found anywhere determining in reviewing the exercise of prosecutorial discretion with this well disciplined i believe that this on standard cited in armstrong is clear evidence and a d c makes clear that in the immigration context in particular the standard his extremely hi and the idea that you can go and proceed to get discovery on the basis of a plausible inference which we don't think exists but even if you thought you had a plausible inference that would not be enough to survive a sort of motion to motion to dismiss and that's all that like council can even claim for it and did the statute itself allow you to come bring you within a provision of the f l s say so substantive laws being interpreted that here it's an exercise just pure and simple of prosecut l discretion and again i just sort of come back to point of what if you match in that one prosecutor one attorney general says i'm not going to prosecute certain kinds of crimes either for policy reasons or because he believes that the statute is unconstitutional or because certain kinds of offenses wouldn't fall within the terms of the statute and then successor comes to a different view nobody thinks think i look absolutely because as the supreme court recognized an a d c and elsewhere the considerations that go in and remember the i mean the issue there was whether there had  been selective of enforcement based on first amendment violations and when i was in that in the in that case were saying that because of the survive being channeled into the twelve fifty two g scheme they had no a record and spin court says look in the immigration context in particular the extent to which we will not go behind sort of what the motive like the views of the agency undertaking enforcement action this is at its highest level of deference and on review ability so that's exactly what we have here there are instances in i mean that that's you know i mean that's definitely the case and it's also the case that the next attorney general resends that memo and nobody's ever thought that they're the disk could give rise to any kind of review even if persons hype relied on one sort of kind of prosecutorial discretion that's not an argument that you can rent aside if you if you know if an attorney general were to say when not going to prosecute these for now this kind of offense that really doesn't confer affirmative benefits on people who are not prosecuted whereas here you have the right to work  security card you have you have to leave the country and come back these are not small thing those are you know i mean they follow but the i mean remember if the attorney general is not prosecuting say certain kinds of attorney general you know of the state local prosecutor says i'm not going to prosecute you know certain there's like a very strict standard of the law you know dealing you know you know with identical nations or anything and then everybody relies on it you know and they say and then the next person goes i'm outraged that this is being permitted you know that no one gives you a right of reliance or anything else the prosecutor clearly can change its mind and there's not a case in the world that says to the contrary thank you thank you very much robert thank you all we will reserve decision at this time we will thank you and a ten minute recess so that the cameras can be carried away