eugenio moll isn't the peel from a dismissal of plaintiffs claims of violations of the united states constitution by the united states border patrol agents the trial court sole basis for that dismissing the plan as claims is that the united states is immune from liability and therefore there is no subject matter jurisdiction the trial court decision expands government immunity and contracts the section five u s c seven zero two we accuse the trial court the district court of committing in our number one that it applied u s c five u s c seven zero four standards to a constitutional violation  the government made that accusation here in the court of appeals we clearly argued that a constitutional violation ages seven eight nine twelve and thirteen of our brief a constitutional violation is separate apart from other agency we would qualify under seventy four but no i don't believe the trial court did a did appreciate the fact that under the gand gandi decision and that that seven o two is far more expansive than agency action alone agency action but we specifically said a page eight of our brief opposing class or opposing summary judgment that any action that constitutes a sanction any action is waived if we're seeking injuncti relief i'm a little bit confused about that because in the judge's memoranda opinion he addresses in the very first section of his discussion the fact that section seven zero two applies in cases brought under the a b a and under other federal statute says it in the opinion just looks to me like all parties just assume that so i'm going will be confused about why the case went where it did from that point i think your honor what what occurred was the trial court made a decision that he was going to apply some one to two in seven or four and we believe that we made it clear that the agency action the cost of sanction and he correctly did a sanction analysis and determined that  the detention and stopping interrogating of someone is a sanction and then when he went on to a seminar for analysis our position is that one of seventy four analysis was not necessary to as it was done was incorrect because the remedies  damages against the united states it need not satisfy the requirements of seven zero four well that is what the eighth ninth and tenth circuit i believe has held and what i'm asking is there is there  contrary i think the only authority to how would you deal with that i don't believe there is any authority to the contrary on the right there is one case that i think you sat on where judge batchel ruled that agency action was required in order to bring a constitutional challenge but i think the the body of law is that the it supports our position and the substantial case law i'm not aware of any that supports the concept that a constitutional violation should be subjected to a seven or four analysis they these are these are absolute rights the core of our our democracy and  complete analysis of our organizational point which is there's just no discussion of that whatsoever and the organizational plaintiffs alone deserves to have this matter remanded for a determination as to whether or not their claims  proceed and their claims are to significantly different in regard to standing other aspects than the individual plaintiffs did you ever clearly framed the issue before the district court as as you just stated that is that since section seven zero two has this broad waiver of immunity you don't even need to engage in the section seven zero four analysis no no we did not clearly as clearly as we should have but we did raise it as i said we said any action at page eight of our brief and i think we have to at any level of the appellate review process we also believe that even if you apply section seven zero four that it clearly we have do not have adequate remedies a law and are entitled to injunctive release relief it's important to note also that there was no substantive review of our claim so this was strictly a procedural dismissal the supreme court made it very clear in the city of riverside th compensation is simply not an adequate remedy remedy where constitutional rights cannot be valued solely in monetary terms in the district our court also found that a federal tort claims act was  inadequate remedy and we disagree wholeheartedly a federal tort claims act claim is completely reliant upon state court tort law constitutional rights do not depend upon the vagaries of state to state tort law thirdly the trial court under seventy four found that the attorney general of united states attorney general's ability to enforce constitutional issues and violations of the bill of rights is an adequate remedy that of course leaves the constitution to one branch of the ministry of government to enforce and that's not intended and by his own mission statement which is on the department of justice as web page he does not have authority to review federal authorities and that's what this case is now about since we've settled with the with the local defendants in the case seeking is something that money simply won't compensate for number one and foremost we have in the record and i have to be careful here because the government is asked it to be sealed the government the border patrol agents showing an absolute cultural trait but anyway i'm off topic well we wholeheartedly agree with you with that that those terms being used and admitted to in the depositions it shows a culture that has to be changed monetary damages can't change our culture it's got to be a top down change and injunctive relief is the only way to do that we also put in evidence of statistical evidence that this has to be a complete change and i have run out of time and i will say the rest of my time for rebuttal unless there's questions from the court this morning william silis on behalf of the united states and also the department of homeland security and the individually named border patrol agents in their official capacities and with me today is to tania funny she's agency counsel for customs and border protection and it's joining me here today this is a case about judicial limits on judicial review of the federal government's law enforcement authority practices it's also about the limits on the type of relief that this court could grant for the alleged injuries in this case but i also like to talk about this also case about people the five plaintiffs that are left in this case those people for there's no real dispute in this case and they chose to do so under the a p a but if you look at the complaint the operative complaint in this case which is a second amendment complaint this is jurisdiction and venue section there there's no mention of the waiver of sovereign immunity or even the a p a itself then when you go through the complaint and then you go to the cause of action the only place there that the a p a is mentioned is in conjunction with the fourth amendment and the fifth amendment and other statute and then it just mentioned seven o two so from the operative complain understood the complaint because it was not clear what the waiver was when the government for summary judgment we analyzed it under a an agency review because that clearly that seemed to be what they were presenting and as we move through this case and tellingly on the opposition to our motion for summary judgment is where the plaintiffs in their brief said this is a case under agency review and you know had they said no no no under  i think i believe it's the city of detroit or the gandhi case that mr murray mentioned how they said look into story seven o two and thirteen thirty one you know eight twenty eight you'll see thirteen thirty one there's a case arising under the laws i thought you were talking about the inadequacy of the pleadings of why i was your honor and i apologize for jumping in early but when it came to the point where we're moving for to dismiss this case based on the fact that there's a lack of subject matter jurisdiction that's the opportunity the plaintiffs had to raise these issues and so you know the issue is much broader we're moving under seven o two this is what's significant is not just as seven zero two zero seven zero two applies to a review of agency action that is you know a self it's not what they needed to say or telegraph to the court if they were going to proceed under seven o two and then just general federal question jurisdiction under twenty eight u s c thirteen thirty one and cited the cases that say you know that alone is enough of a waiver of summer immunity we can move forward but instead what they did in opposition to the motion to dismiss is says hey this is clearly a case of agency review under the a p a and we can hardly fault the district court for taking them at their word and analyzing the case as an a p a review case jurisdiction i would agree that your honor but i think what happened here is slightly different it's their burden to establish with the waiver so many medias when this issue was printed presented in right for the district court they told them that this was their theory so it's beyond pleading it's this is our avenue to court that's the government i mean the district court accepted that and applied the analysis that they argued in opposition to summary judgment so now after losing on that theory it's not a jurisdiction that this is exactly a form of review peer review is different than review under twenty u s c thirteen thirty one this is avenue they chose they lost on appeal they say hey wait a second here's our opportunity and the case we cite in support local three eight six  it was similar in the sense that the party there the result was the same a lack of subject matter jurisdiction but you know they looked for relief under the energy act and then failing to do so there they said hey wait but there's also also always the ability under the a p a to assert jurisdiction for non monetary claims and you know the court this court said you know absent extraordinary circumstances we were not going to entertain that argument purpose for the for the two individuals who are removed and are currently in mexico that was the end of their immigration proceedings i would say that as a final agency actually at least to the two individuals were moved to mexico for being on lawfully present for the individuals who are  some i mean the border patrol is going to have any other i would say sure the border patrol but were the allegations here against not just the border patrol but the united states writ large any procedure is not over i would say it's not yet final  that's correct your honor i'd like to raise that really really determined that you know the court found that that was unnecessary based on the determination they but i do think it's right for this court to review based on the record to date and this isn't a case four going back to the district court's decision as we know that that it was there was an adequate remedy under for bivins and after the cia and i think if you look at the relief that they're requesting in this case i think that is correct i mean if you were to say that the primary relief they're seeking is a declaratory judgment that the actions here were unlawful and the other part that they're seeking is an injunction against profiling activities now if you can excess full judgment in a bit in this case that a stop was unlawful or that racial profiling or racially profiled that's essentially the same relief that you would get a determination by the court of unlawful constitutional violation there's no indication that that would be an adequate remedy for that part happen the courts dismissed even cases in favor of a p a cases that would occur in this case i don't know if that that would be a successful argument it has occurred and certain cases i don't know that it's occurred when you're challenging racial profiling or when you're challenging a stop you know based on lack of probable cause or reasonable suspicion i mean generally when those if the plaintiffs are saying well we need an injunction against this law for act unlawful activity i mean it's already illegal i mean for the fourth amendment jurisprudence we it's already clear that you can't make stops without reasonable suspicion you can't mix you can't arrest without probable cause it's also clear with  racial profiling it's already against border patrol united states government policy to racially profile so to the extent that injunction would stop an activity that the border patrol vehemently denies is its  policy and you know say that they are not involved in it i mean for that point for an injunction extension lead to a baby's laws that officers are sworn to uphold in the first place i don't know if it's a really feasible remedy in this case are there cases where you have repeated unconstitutional practices in the remedy is to say for the court to step in outline what can and cannot be done i mean the law and the law has clearly hasn't served its purpose if it stands it in just the relief is warranted based on some underlie violation of the law so it doesn't become foolish just detail people to go out and comply with the law and they would do you think all the injunctive relief and employment discrimination cases and now i mean you know another issue seven was presented to the district court if we're going to find error in a district court's ruling that a theory presented a theory for judicial review presented to the district court that somehow by following the theory that the defendants presented it that somehow is just a court error to to buy into that eon say ok but you don't have had they brought it under a different just seven o two thirteen thirty one and made that clear the district court i think i'd be standing and making very different arguments here today or the or perhaps they would have been a different result but i just notice that i only have a few more seconds unless there's any question that on that issue let me make sure i understand your position then because you concede that section seven zero two provided subject  here we don't have to address that question the only question in that respect is whether or not they fail to present the argument in the district court and somehow waived it if we find that they did not do you acknowledge that or remain as appropriate yeah i'd just say just to clarify that it was seven zero to that it's not so much it provides jurisdiction it's the waiver of sovereign immunity in this case had they said that subject to master section is appropriate on thirteen thirty one and we're proceeding  it's very but you can see that section seven zero two provides a broad waiver of sovereign immunity that would a plot of these claims it's a little premature to say at this point only because they'd never provide the analysis under thirteen thirty one presumably they're seeking relief for constitutional violations and the monetary limit i think it's no longer part of the statute i think that's central to your honor but i so under the waiver somber an immunity for the base of the district court finding that's correct but in terms of standing i think that that decision is right for the court to review at this point even though the district court didn't meet that i mean the court always has the obligation to determine subject matter jurisdiction and standing is you know point part of that in i'll leave that to the i think helped try to clear up some of the confusion on the procedural issues the complaint is the beginning of the process we don't have any obligation to state the government's defenses of government immunity in our complaint that's the affirmative defense government properly to raise and it raised in a motion to dismiss the government immunity and we chose section seven zero two as a path one second what was the asserted basis with jurisdiction in the complaint it well complaint had a lot of  various issues but it was of constitutional violations by the border patrol federal question and you just think you are and i had to clear up something was said that the asians are against the united states while they are against the united states states which if you look at the complaint the complaint is directed at the border patrol and the issue of final agency action is clearly we directed at the border patrol so the ice allegation what happens is when the sanction occurs detention occurs our clients are detained interrogated that's the final agency action is the detention by border patrol they are then turned over to ice so anything that proceeds there after is not the subject of the of this complaint and not the subject of the issues international workers project and under the havens decision and under the abigail decision there is standing on that basis alone and this is a case about people but it's also a case about the organizations that are there to protect people and the i w p and flock deserves their day in court did have a determination whether or not their mission was interfered with and that analysis was simply never done and we believe on that basis alone they remained as appropriate to the trial and just in terms of the present ation of the argument that seven o two waves immunity the federal question jurisdiction that was or was presented in some form in response to the most wanted list it was presented at page seven eight nine and i believe twelve and thirteen and particularly a page eight we said any action of an agency and this is key because the executive branch can only act through an agent agency or agent and therefore a constitutional violation can only occur through an act of an agent or agency and we allege that we set any action the constitut constitutes a sanction is actionable and we believe that you're correct judge greer that we could have been clear but i don't think we need to be it's not a way of a bowl argument it's subject matter jurisdiction thank you