morning everyone we have just one case on the calendar the smalling it's number zero six dash cam eight zero six in r united states and mr katz us you're representing the government and you just want to confirm you've reserved three minutes for a bottle neck ok proceed whenever you're ready are things in the court a federal claims presently on hold there's nothing going on there that's correct the discovery has been stayed the pursuit of the court's order are and then the other second question i just want to ask you what is the but we're here today in connection with the jurisdictional issue which is the key decision for us to look at it for purposes of that question i think there are three and let me explain why it were apart part of why we are here but a further part of why we are here is the third relevant decision which is the court's discovery order which commands the government to turn over a wide range of extremely sensitive deliberative documents of the third circuit literally judges speaking to judges about an individual up for reapply i and what are the  record what are the key jurisdictional and just so i just and then i'll let you get back to your argument i just wanted to have my to have that as a framework the denial of the motion to dismiss which is appendix i'm sorry could have just as a follow up on the housekeeping actually that murder which i understand does with deals with a document but i'm a little confused on the record on count one income to because the two opinion  show cause why count one fifth amendment and should not be dismissed in our view the fifth amendment counts it doesn't really add anything to judge sauls case either with respect to jurisdiction any statute or regulation that creates a right to appointment about the constitutional difficulties that would arise if this regulation were construed to create a right of appointment all of those arguments if you accept them would be equally dispositive of count one and count two i think it would be well within the bounds of your discretion to order dismissal of count one i think if you were uncomfortable with that as a practical matter reasoning on camp two should cover count one i think that's sufficiently clear that we would we would ask for dismissal in its entirety but just one quick just one quick follow up which is youth that think they're on hold the supreme court's recent decision in the cheney case i think this case is for mandamus purposes in a similar posture to cheney in that we have the denial of a motion to dismiss followed by a lower court in barking on a problematic discovery which in a sense crystalline isis and focus enormously sensitive they are they are the internal deliberations of the third circuit about a candidate for appointment with frankly candid comments about his merits and demerits the act before  over to an article three and any gives rise to both the appointments clause kinds of concerns articulated by justice kennedy in the public citizen case where a set of course there will be a profound make a difference it would be a closer case although i think we would still be here with an argument that even in cam view is inappropriate both because of the extremely sensitive nature of the documents and the because that the nature of the discovery and that this is again a parallel to chain the neetu of the discovery confirms the fundamental problem with the underlying litigation and the urgency of an outright dismissal in the following sense when we moved for twelve nineteen p certification which obviously is a discretionary decision one of the things the c f c sad in denying that motion was he said it's he said it's premature for him in order in january two thousand and five and then he said i'd like to see the discovery and i don't think i could c f c don't think that the discovery will be very problematic because the other side has said they want to try to depose judges and stop well now we've seen the discovery the discovery seeks this entire the entire body of the third circuit deliberate experience and what cheney makes clear is that even in that kind of situation with problematic litigation leading to problematic discovery man appropriate even before the government or in this case the third circuit is compelled who will serve the tail privilege objections document by document let's remember in in chain the supreme court granted mandamus when the only thing the government dipped in order to do was produce a privilege while government had even asserted privileges yet in cheney and the supreme court said this is crazy this discovery asks for everything under the sky to quote the court's words in the context of litigation that the court strongly hinted had no business going forward on it cost the discovery order it sent the case back to the d appropriate here where we are still before privilege assertions but we're in the discovery process and that discovery has confirmed exactly what we said in our motions to dismiss that this litigation is profoundly problematic because it seeks an impermissible review of an appointed decision that under the appointments clause must be made must be made by a court of law of the united states assigned functions we call we call the indication of judicial process because the government decision makers here is the court of appeals for the third circuit if you want to call it a deliber process because it's an appointment decision rather than a case or controversy i don't think much turns on the label i think the important point is that whether whether you were talking about judge to judge congress stations regarding point a decision or a state judge to judge conversations regarding a pending canyon the need for confidentiality is quite self evident and well supported five those overlapping privileges which i think nixon versus directive basically says are the same one one applies to the judicial branch and one applies to the executive but again i don't think that i we or the court need to work through all and details of retail privileges actions in order to address the broader question of what your position is that your view that because the statute says may that's the end of the inquiry in other words even if the judicial guideline had said every bankruptcy judge shall be appointed unless they've been convicted  authority to propagate procedures but i don't think that this regulation as construed by her poems to effectively compel the appointing already reappoint i mean something you know large further layers of arguments based on the regulations as if she were to follow up on her to proceed question the soup of the moment you just had the regulation that was the only issue and if she suggested it did say a bankruptcy judge that statute or that regulatory language in other words they had never been convicted and would that would that be a regulation that assuming it's regulation i realize you say that  of right delegate words that would that be would that create a clear and tighter as we use the term and tucker rector's prudence i don't think so because we have a whole i think that case would obviously be much stronger down the line judge shawl has because you're positing a shall rather than should and this court has said sure is generally crack atory rather than mandatory in a decision acknowledged by the appointments clause decision cited in our brief in which case the relevant statute in that case said that certain military officers shall have shall be promoted on certain conditions and that's how it's pretty mandatory and this court on the view said that the word shall in that context can and must be construed to be permissive to be  makes a slight difference that cuts in our favor on the reason i say that is really a point now should not be denied is a passive voice and the consequence of it being in the passive voice is that there is nothing that looks like rights creating language which is one consideration in the hamdi case this court said that the if you have an active voice judge a judge should be appointed if you would have the negative but you would have something that sounds more like rights creating language and i think the fact that they use the passive voice cuts in favor of the prefatory construction i'm not i can't pretend that i think that argument or that the only competing argument on the other side which is that there huge difference between should not be appointed and should be appointed i don't tell you that i think those arguments is the end of the story but i think the absence of rights creating language cuts in our favor and when you marry that with this court's general statement in one tank that sure is usually discretionary and murder consider the rest of that regulation the first sentence of which says the decision is vested in the court of appeals and the second sentence of which talks about the court considering the record of the incumbent the regulatory tax sick construed as a whole suggests that the decision is discretionary when you further consider the legislative and regulatory history in which neither congress nor the traditional conference has any chance that they are trying to assign to an entity that cannot constitutionally receive the appointment power the power to dictate who may be appointed the statutory and regulatory history suggests that both tyrus and the judicial conference were concerned with a much narrower procedural problem namely avoiding the need for unnecessary background checks when the court of appeals is headed towards reappointment they'd certainly know how to  both the avoidance concerns with respect to appointments clause in the line of cases beginning with marbury vs madison learning all the way through dice or anything parents principle that because the review here would be in a non court actions would not be reviewable in district court through the a p a they would be specifically carved out of every relevant provision of the c s story they are specifically carved out of title seven and eighty eight and every federal any discrimination statute where the only question is whether whether the decision maker has used an odious criterion as opposed to sun someone other than you pointing authority trying to compel a criterion in all of those contexts are of legal tradition has been that employment and appointment decisions by the judicial branch are not reviewable in the way that executive action is and the profound break from tradition that judge sauls construction here would entail i think needs a little bit more than little bit the other side you've made a number of arguments today in your various arguments asserting your brief but on the jurisdictional issue just one sentence what if you had to if you were if you were told you could only rely on one of the jurisdictional arguments that you make what would it that it would be that the word in the in was the regulations is best construed as cracka tory rather than mandatory in light of the statutory background the regulatory catches went over by about eleven and a half minutes but will give you the equivalent additional time if you need it and your argument also  let's just say for example a tort claim someone files a tort action in the court of federal claims and the government moves to dismiss and the court of federal plains the judge there denied the motion to dismiss and then said all right we're going to hear this toward action now and then the government sought mandamus clearly i think everyone would agree that that the court had acted in a way that had asserted jurisdiction an a standard which is something that is clearly an indisputable plea correct and then there are examples so you'd say in that set in that situation the jurisdictional issue would bring you within the the court of appeals concludes that this person is not the best candidate for the job would you concede that then the decision is solely within the discretion of the court of appeals and therefore there's no jurisdiction in the  well i think i would have to know more about the background of that as to whether this meant by not the best candidate for the well what joslin to call in my view is not whether it's not the best candidate but test the a lot of the discretion that's inherent in that hypothetical but then the court of appeals it's not only the best candidate for the job it's whoever the court of appeals conclude second guess under that circumstance and then you go to a trial and the poor evaluates all of the applicants for the job and makes its own determination it's just who was the best qualified for the job is that the way the process would work then that would be a very different circumstance i would have to i would really have to analyze the circumstance we're not faced with that here because there is a  which is whether there is a failure by reason of the past performance of this bankruptcy judge to meet the standards  performance regularly met by united states bankruptcy justice ok so there seem to be two questions that by that one is whether or not this person has failed to meet the parents and the second question  what are those high standard practice for it so is it your position that the port a federal claims in this instance gets to make those determinations well i don't think  going to happen in this case because there has been amplified and there has been no defense asserted that just show will fail to meet these high standards that would be an affirmative defense under the law given the procedure for raising defenses this is a case where judge shaw was never told  what standards he was going to be justified he was never told of in violation and the failure to meet any standard whatsoever and no finding was ever made for cause that is the phrase that's the phrase that went to the supreme court in the case of a lot of well versus cleveland board of education and once you create a for partisan standard of course hether we call it regulation raghad line five point zero one b s the key provision that's correct correct and that is the provision on which you really rely that is exactly and you would say it's a regulation it's called act in the first regulation is an executive department now that the ministry of office the or the judicial conference of the united states is not an executive assume this is a regulation this is not a regulation an executive department because the judicial conference of the united states is not an executive department what is your answer to that art and why is that argument is congress or any regulation of an executive department or on any expressed or implied contract with the united states or for liquidated or under the damages in cases not something tort willy's that last part size human all you had just for purposes of the discussion was the second a department issue other words regulation of an executive department was all that you had as you know in a jurisdictional case we have to explore all the parameters here how do you get a ram the argument that the that the government's argument that this is not if it is a regulation it's not a regulation of an executive department well if so what is the just a follow along the line clear so your position would be that you've got an act of congress here and even though the act of congress uses the word net because these regulations are pro a presumption of reporting what if the statute as we have here does say may the regulation is in conflict with the statutory language which would govern it that well i don't think you have to reach that problem but i will answer your question but i do want to point out that these regulations were implicitly ninety eight and then two thousand dollars supplementary regulations pressley referencing the judicial conference regulations in fact these and key number of them  t under the number five and it was no evidence in a record that they were originally adopted by you and mitchell regulations so only the supplemental regulations which are specifically about so there's an no longer follow the regulations they certainly communicated in that they were following these regulations they were always referred to as regulation even before basket or the government conceded that they were relations regulations or guidelines well i did just faster correctly identified that the when the statute was passed there were no regulations so this was a future  were adopted that they didn't have to be followed what have the statute said may and the regulations clearly say show direct conflict between a statute and a regulation which govern well if you ha i'm looking at the january ninth briefs of yours that was submitted in response to our order and at the top of page eight you state that non reappointment is a form of discharge what argument does i mean that's the proposition you're stating there which of your contentions does that proposition support other words not is one disagrees with you and does not find a firm right arising from that do you lose i think it is required for example  some concerns about jurisdiction under count one but getting back to count two which is based on the regulation correct yes just assume that was the only thing we had before us if one agrees with you that regulation he is right gives rise to a firm entitlement you would prevail correct yes what if one disagrees with you one do you lose on count t we can obviously check the record sir and let's assume for the moment that the only regulation and up with quotes around regulation to recognize the disagreement between the forty's on this but let's assume for the moment the only regulation that's in issue is five point b ok there's no other regulations that issue the only language that satish she was the language you have to have quoted to is correct again if we see that is giving rise to clear entitlement as judge doesn't give rise to entitlement you lose on that point yes ok thank you now you have let's see i'm hopefully i counted this right i mean you're entitled to i think in total it looks like mr katz is has an additional fourteen minutes so i've tried to keep track of yours and i think you're up to about thirteen and fifty so you have will give you another an opportunity for him to do that was cut off by your state or whatever twenty eighth of last year and of course that he has not made any rulings on  jurisdiction the discussion about whether section five point one is mandatory or practical rate goes to court questions of subject matter jurisdiction i don't know whether that was clear you're saying jurisdiction your risk relying on the proposition that jurisdiction is a matter that can and indeed must be noticed at any time and further with respect to man case there is a there is a salary there is a provision for a judge or salary it's money mandating but it's not even arguably applicable to judge schol absent the regulation because as you pointed out he was only appointed for a fourteen year term and section one fifty three of title twenty eight is a salary provision it's not an annuity provision it entitle him to your pay for the fourteen years of his term so he really of subject matter jurisdiction that not only may but indeed must be raised at any time during judge pro style any open ended nature of the regulation i think you're absolutely right for supports our interpretation because if you can imagine what the c f c proceeding looks like the third circuit has gone through a typical appointment he wants and what would necessarily happen if this litigation goes forward if the trial on the merits in which the the court expect maclean's which is an article