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The Information Guidance for United States Court Of Appeals District Of Columbia Circuit 333 Constitution Avenue Nw Washington Dc 20001 2866 Phone 202 216

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o.a.o.a all persons having business.before the honorable the united states.court of appeals for the district.columbia circus.are admonished to drown here and give.their attention for the court is now.sitting.god save the united states on this.honorable court.case number 19-5217 cable news network.inc.versus federal bureau of investigation.to balance.mr polham for the about mr tobin for the.employee.before we start i'd just like to note.that this is the first day.and the first case that judge walker.will hear.as a member of the dc circuit we look.forward to serving with him for many.years.because it is his first day council.please go easy on him.thank you judge garland.good morning and may it please the court.thomas pulling forward the fbi.i'd like to reserve three minutes for.rebuttal please.so the central question in this case is.whether the common law provides a means.of evading.foia's carefully balanced scheme by.offering access to statutorily protected.information.that is only before a court because of a.foia lawsuit.it has long been accepted that when the.government cannot fully justify.its withholdings on public record it may.submit an ex-parte declaration.for the court's in-camera review this.procedure allows the government to.defend itself.without disclosing the very material it.intends to keep secret.that purpose would be undermined and.foia's balance upset.if the common law could be used to.compel disclosure of that information.even when foia does not mr mr pullman.haven't we already held in metro life.that.that foia itself does not.uh preempt the common.i don't think so um i think uh what was.the issue in metlife as i understand it.was a more.general uh argument that foia kind of.or i'm sorry that wholesale displaces.the common law.um here we have a more narrow argument.and then.and in leopold we held that unless the.statute expressly says.that the information must be sealed it.doesn't preempt.so what section of foia says that.ex-parte filings are always sealed.um well i think there's uh two.provisions to look at in.in foia um one is uh a4b.which uh provides for uh the in-camera.review of the underlying documents.and provides for it but it doesn't say.anything about.it um permanently staying that way this.is the problem we discussed in leopold.that even where ceiling is permitted.the question is um whether.the common law is displaced with respect.to unsealing.what language other than the permission.of in camera.proceedings are you relying on well i.think uh the exemptions themselves.and the fact that uh the district court.has uh jurisdiction only to.uh disclose information that's.improperly withheld which in turn.uh depends on the application of the.exemption.this court in hayden said that requiring.the district court to provide on public.record.information that is uh exempt.it said in that case that would violate.exemption one.and that's why the court that was.information that was held by the.executive.well the the in hayden it was.specifically talking about the contents.of.uh in uh ex parte affidavit.um and it said requiring the filing of.that information.on the public record would violate.exemption one.um this court has also kind of given.broad effect to.uh foley's exemptions with respect to a.uh.a glomar response and saying that this.is what's needed to effectuate the.exemptions.so i think it would not make sense or be.compatible with the global response.simply says.we're not able to confirm or deny.the glomar response itself is not.sealed the glomar response just permits.the government to not reveal.under foia if it's if it's foia exempt.but walmart filing isn't itself.forever sealed that's right but i think.what we're looking at is.uh the access to information.that is uh protected by statute.and i don't think it's consistent with.foia to say.well um well what statute what statute.protects it.the foia itself and also the national.security act.um so if you if you lose on the.proposition that.foia itself protects it because merely.providing for in-camera proceedings.doesn't.forever protect it what aspect of the.national security act.protects it the language of the national.security act is an obligation for the.director of central intelligence or or.successors.related thereto it doesn't say anything.about the courts.and and then leopold again we said it.has to say something about the courts.same same in that life well.i'd like to get back to for you in a.minute but um with respect to the.national security act.uh the supreme court construed that.statute in.sims and it said that congress had.deliberately chosen.to give control over the disclosure of.uh.information protected by that statute to.the director of national intelligence.and had specifically chosen not to give.courts.the ability to compel disclosure and it.offered several reasons for that.one was that the government needs to be.able to provide.the most secure representation of.confidentiality that it possibly could.and it said that a compelled disclosure.by a court.could have a devastating impact on the.ability of intelligence agencies to.perform their duties.is this information is this information.classified.no this information is not classified.why why isn't it classified.information is classified under the.executive order.zipping it down all the way to.confidential if it harms in some degree.the national.uh security um is the fact that you.haven't classified this an.acknowledgement that there's no injury.to the national security.um no not at all and i i don't.um well i i think we can look at uh.uh sims to describe or to uh.understand the harms that can be caused.by the release of.uh non-classified information relating.to intelligent sources.so none of the information additionally.since was classified.the supreme court nevertheless said that.the forced disclosure of.uh an intelligent source could have a.devastating impact on.uh intelligence agencies it said that.even the risk.that a court could order the disclosure.of uh information relating to a source.could deter sources from coming forward.and providing information to the.government so i have two questions two.questions about that one that sounds.like an argument for why those.redactions should not be unsealed not an.argument for why the.declaration itself isn't a judicial.record subject to the.common law that is obviously the common.law can be over.turned and an individuals situations by.a strong interest of the government.which you express.in the way that you just did but i'm.still interested why isn't this.classified that.if if uh if a national security agencies.are obligated to protect this.have they violated their obligation by.not protecting it.no so the underlying information that.this uh.uh describes is classified that was the.purpose of the archie declaration was to.explain.why certain uh redactions that had been.made to.uh one of the memoranda was classified.and it was classified on the basis of.pertaining to intelligent sources um.so the archie declaration described that.information.it did so in terms that was not itself.classified.but that information nevertheless.relates to.intelligent sources and the supreme.court explained why.even innocuous information when combined.with.kind of other pieces that a foreign.intelligence entity might have.could lead a foreign entity to.discover the identity of an intelligent.source.and what the supreme court was doing in.sims was saying.you know this is an inquiry that just.should not be undertaken by courts.because they don't have the expertise.necessary.to identify which disclosures uh the.specific.the specific question and sims i'm just.going to read it to was.whether the freedom of information act.requires the agency to disclose.that's correct that was the question it.wasn't about the common law.no but the supreme court was explaining.what congress was doing through the.statute what the statute in fact did.and what it was intended to do and that.reasoning.applies equally to disclosures under the.common law as it would to disclosures.under.foia i'll let my colleagues have a shot.i just have a question is the archery.declaration.still in the possession of the court or.the return to doj.i believe the court has a copy of it to.my knowledge it was not returned.um but i'm not 100 sure it was filed.with the court and i.i don't know that the declaration itself.was returned.if it were if it were returned would.would that affect the.the application of the common law for.judicial.access judicial records application.i don't think so i don't think uh that.that necessarily turns.on um whether it's physically in the.possession.of the court uh or not many times.exhibits or documents are given to a.court for a time and then returned.um clerk's office does not always hold.on to everything that might be.considered the judicial record.okay and then um.much of your argument you've fought the.district court for not applying.uh enough attention or enough given.enough deference or respect to national.security but the district court said at.a number of.junctures and its decisions it was at it.was giving great weight.to the asserted national security.interests.but the government just hadn't explained.itself.going to explain why this was covered by.the national security act why.it implicated intelligence sources and.methods.and then in large part said that the.reasons.that the hubbard factors were struck.against the government was because the.government didn't even argue a lot of.the factors.um and then we hadn't given it any.material to work with so.what are we supposed to do with an.abusive discretion review in that.setting.and with respect i i don't i i think the.gov.just report went wrong in a couple of.ways here.um it said it would give weight to the.congressional judgment.but then it uh.it said that the government didn't do.anything to address the strength of the.interests at play.but the fact is that.congress had determined the strength of.the interest at play through the statute.but that's not how that's not i mean.even under foia itself.exemption three you know we do have.courts do have the authority to decide.whether it's actually triggered by a.particular.document and oftentimes the government.will help us to understand that but the.government.i don't think exemption three has ever.been interpreted to say all the.government has to do and.invoke it and the court says good we're.done that's not good right no no.okay that's before here instead of.looking i've looked and.you haven't told me what to do.well i don't think the district court.said it wasn't covered by the national.security act.um what it said is that it wasn't sure.why secrecy was important here.and that's on j65 and that's the precise.inquiry.what is that is it's not it's not.self-evident.why secrecy is important and that's it.perhaps.there's something here that is.superficially innocuous to the untrained.judicial eye.but if you piece it together with other.things it would be.important and then said the fbi however.has provided no.such rationale and so the fbi hasn't.given any basis for.concluding that this there's anything in.here that actually merits.protection and in fact never even vote.you know invoke.exemption 70 but not three no but it.invokes specifically the national.security act which in the context of.this case the only relevance of that.statute was as an exemption three.uh withholding statute and.the district court never took issue with.the assertion that this.information related to um.uh intelligence sources um and i think.it's.self-evident from the uh archie.declaration itself.which when explaining why this.information is classified.redacts two categories of information.that are embedded within discussions of.a source of uh.an intelligent source indeed in.paragraph self-evident but the district.court said.in in terms nor is it self-evident.it said it's not self-evident why.secrecy is important.that's a different inquiry from whether.information relates to an intelligent.source.so there can be information that clearly.relates to an intelligent source as in.paragraph 12 of the archie declaration.where it says.the revelation of the confidential.source's name would identify the.confidential sources.redacted that reduction clearly.i think just from the face of it relates.to the confidential.source what the district court said is.i'm not sure why this information should.be secret.but again that's the inquiry that sim.said a uh.court doesn't have um the expertise to.undertake and it's distinct from.the uh uh inquiry of whether information.related you're saying.anything that follows the end of that.sentence is necessarily.automatically going to be protected.clearly there are things that could.follow that sentence that would not be.that could end that sentence that would.not implicate.national security or intelligence.sources and methods.well again the standard this court has.set.in larson in other cases is whether it.relates to.uh uh an intelligent source and the.district court and that's what the.district court said you haven't shown.here is how does this relate to.an intelligent source or revealing.information about a source.or methods i mean.the government does this all the time.and it was just sort of striking.that the district court tier at least.said repeatedly.you've given me nothing to work with and.so the district court as i read the.opinion felt like it was.left with the choice of either simply.taking the government at its word.or doing you know doing some sort of.independent judicial inquiry and your.your view is it should have just taken.the government out of its work.i i think absent some kind of finding.that the information did not relate.to an intelligent source.that the district court should not have.uh ordered it disclosed.and you may relate to an intelligence.source if they said we have intelligent.sources.that relates to an intelligence source.but that's.would strike me as a completely.innocuous statement without further help.from the fbi.well i i mean that doesn't relate to a.specific intelligence source.this one really that's not the test is.that your test.um well i i i just think that that's a.totally different.it's just not what's going on maybe we.just don't know that's the problem.but you didn't but i mean the.the discipline had the document i think.just.on it again i i.i believe that you've got a semicolon.there right.so it sounds like a whole new idea is.coming.only on the in paragraph 11 um but.that's all.in the context of um.uh things that relate to intelligent.sources i mean the whole point of this.paragraph is to explain.why uh information redacted from one of.the number and uh.participation that would identify the.constitutional the confidential sources.job would jobs have to be protected i.know there's more words there but.would job have to be protected.i i think in some circumstances it might.need to be.the fbi would have to explain those.circumstances in.in that case i i'm just not sure here.that this falls.uh uh in one of those cases um at a.minimum i mean the district court did.it committed other errors with respect.to the uh the hubbard.uh balancing test for example on.um the second factor which deals with.previous public access.it said that uh.that factor weighed it was not in the.government's favor because it had.released other material.that gets matters exactly backwards this.factor asks whether.previous access to the information that.issue.um it says that the quota of that.provides a.reason why it should be released in this.context but the public has never.nor had cnn as a foia litigant had.access to this specific information um.on the first factor the court.acknowledged.that there was little public interest in.this specific information.uh which relates to an intelligent.source and i'd like to just underscore.here.the small amount of material that was.withheld.we're talking um kind of less than five.lines.uh i believe it's around 40 words the.government disclosed.all of its briefs are public the other.archie declaration in full was disclosed.the ex parte proper was disclosed in.full so i'm not.at first and second factor i mean i take.your point but the district court found.that you didn't even argue the first.and second factors now you're making.some.interesting arguments but what do i do.with the fact that this is abusive.discretion review and you did not make.those arguments below.well this court has said that uh it is.enough to put it before to put an issue.before the.court of appeals if the district court.reached it.that's not a legal proposition but in.the course of abusive discretion review.of a particular decision.um it's not whether we can consider or.not it's just how can we say the court.abused its discretion on the basis of.arguments you tell us now.that we're not given to the district.court well because we.we can see we can see what the district.court did and it committed errors.in its reasoning so we can't be sure.that without those uh.errors it would have uh come to the same.uh conclusion and we can turn to other.factors that uh.there's no dispute that the government.uh made.arguments about on the third.factor uh the court believes that uh.fbi's objection shouldn't have the.strict same strength as a third party.objection.and i just i don't think that makes.sense with respect to.information about uh intelligent sources.that.you know kind of are important to the.functioning of an intelligence agency.um on the uh um.uh fifth factor um the possibility of uh.prejudice i think sims kind of outlines.the possibility for.prejudice which is that just the risk of.disclosure.by a court can cause a a source in.the supreme court's words to close up.like a clam all right.mr palmer well over a time do yes the.other judges have further questions at.this point.can i just ask one mr uh.i think you may have forfeited at the.district court.your foia exemption 3 argument your.argument that.foia exemption 3 should preempt the.common law here.i also think that cnn may have forfeited.at this appellate court.their argument that you forfeited.exemption 3 and the district court.i'm going to ask cnn the same question.but what am i if i think both those.things what am i supposed to do with.that.well a party certainly can forfeit a.forfeiture argument.um we think that the argument that.whether uh.the uh foia displaces the common law in.this.circumstance was sufficiently before the.court.especially in the context of of this.case.and at a minimum the court addressed.that legal argument.as i was just saying to judge millet.it's a recognized exception to.forfeiture uh that those general rules.don't apply.when the district court decides an issue.um i think the district court did decide.the issue and we can.bring it up here but just looking at.what was offered i think.the government had offered enough in the.context of this uh.litigation it identified the relevant.statute it had made.arguments that that statute was an.exemption three.uh statute with respect to the.underlying information that archie.archie uh declaration discussed the.government had asserted exemption three.over that uh information um.and just given the way this uh case.developed where.facts were constantly shifting on the.ground um the archie declaration was.submitted.in respect in response to an order from.the district court to.just provide a notice saying uh you know.if anything had changed.on the redaction the government changed.you know released some information.provided the declaration to say.uh you know this is why the remaining.stuff can't be released.um so i i think in these circumstances.especially uh.to the extent that court has discretion.to consider this i would hope.that it would exercise its discretion in.a way to protect.um uh information that relates to.intelligent sources that could.uh whose disclosure could uh.cause some harm to that source and that.type of harm is outlined in the.declarations that uh that we've provided.that.uh sources can lose their.utility or willingness to come forward.they may be retaliated against.if they're uncovered okay.all right we'll hear from mr um tobin.thank you thank you mr paul.good morning your honors and may it.please the court your honors the.questions of the government really um uh.exposed the underlying issue here and.that's whether this court.should deviate from its unbroken line.for the last 40 years.arguably the last hundred years since.the nra drawback case.um and hold that the uh the government.does not need to show.uh all six factors under the uh now.standard hubbard test.could i ask you i would like to pick up.on what mr poland was arguing so the.the standard of review which is abuse of.discretion.uh includes according to our opinion.leopold if the district court.misunderstood the application of the.factors that has misunderstood the law.that we review de novo correct.the uh application of the law is a de.novo review that's correct oh so if we.could go.i i i want to pick up on what mr poland.was arguing um.here i i don't blame the district court.for this because our.cases have not been the clearest and.many of them have not presented these.precise issues but.um if you go through each of the judges.applications or the factors.i i have difficulty with whether they're.actually.what the law should be leave aside the.question of whether a law is completely.clear on this or.not so the first factor that the judge.applied is the need for public.access and the judge says although the.court.sees little public value in the specific.information that remains redacted there.is enormous public interest in the comey.memos.now it's my view in light of what we.said.in leopold about everything being.particularized the point of the hubbard.test is that we look at.particular information to be sealed or.unsealed.that the issue we should be looking at.is for each of the factors.is the information that was redacted not.some larger amount of information.is that uh is that a.unreasonable view of the law that i'm.suggesting here.um not entirely your honor but we also.look at it as a process.issue the public interest could be.colossal or it could be quite minute.in the actual redacted information.obviously the more important the.information the more important the.circumstances.the more that probably agree you agree.that we look at the.information that is which still redacted.and the judge.says that that information he sees.little value in.now if we're going to believe i mean you.want us to take the judge's view.that that there's not much injury to the.national security.but don't we also and i'll question that.for a moment but.don't we also have to take the judge's.view that there is little.public value in the information that's.still being withheld that if.if i'm i'm i'm looking correct all we're.talking about.is basically two full lines maybe two.and a quarter.out of the entire of all the material.that was.that that was one city issue that's all.that's left right just those blacked out.lines.on page ja146 that's correct.all right so if i go to the next.issue which is um.um.the second factor the judge weighs the.extent.of the previous public access to the.documents.and here um.there's been no public access to the.redacted information.the judge focuses again i don't blame.the judge for this but i'm trying to i.think.one value of this case is that we have.some clarity here about the law.the judge says lots of you know the fbi.has already released the vast majority.of the declaration that.that's true but that's not the issue it.seems to me that the issue here.is the extent of previous public access.to the redacted information.isn't that right your honor with respect.no and if i could just make an extra.point on on part one.the the need for public access is also a.procedural issue.the judge made very clear that he relied.on the archie declaration.he relied on all of it at several stages.in the proceedings.there are six portions that we cited in.the record.where the judge relied on the archie.declaration or the government relied on.the rg declaration.to persuade the court um to granted.summary judgment in the first summary.judgment in the foyer case.the public has a great need for access.to understand.the underpinnings of judicial decision.making well.obviously i understand this having.written leopold and metlife but.the question here is the judge basically.is saying that he didn't rely on those.two pieces of information because he.didn't think they were important.so i'm not sure that's the right.analysis but.even if you're right that that's the.right analysis the judge is saying i'm.not.i'm not relying on this on these lines.so.uh i agree that that's.that's not how i read what he said was.the added public interest.um you know it may not be uh great in.light of the rest of the declaration but.he didn't say that he didn't review it.or rely on it i mean after all um he.agreed with the government initially.that the um the the uh entire process.was covered by a law enforcement.um uh exception exception inception 7a.all of that except for this part has.already been released.so let me move to the third factor so.that is someone has.objected to disclosure and the identity.and.um and hubbard um uh this was a.national children's it's a different.issue who else could object.to disclosure of sources and methods.other than the government.in the other cases the concern was.privacy of third parties.who are concerned now obviously the the.sources and methods are not going to be.coming to court and objecting it seems.to me that in a.national security situation.the only party that really has relevant.information about that.is the government.and granted toronto there is really.nobody else who could stand in and so.there really is only.in that part of the test there's only.one party to look at but when the.government comes in.and expresses its interest in an ex.parte.fashion this is a case that had eight.declarations.an ex parte hearing um that we didn't.hear about until summary judgment was.rendered.uh exhaustive briefing in camera review.when the government is the party the.court has an especially heightened duty.and i know your honor agrees with that.an especially heightened role in.questioning the government and asking.the questions.and our only point on uh factor three.is that the court should consider in the.common law balance that.it has an enhanced duty to ask the.government questions and that's exactly.what judge boazberg.did he repeatedly asked the government.to establish.why the information redacted from the.archie again i.i'm trying to pick at each one of the.factors rather than the sort of.zeitgeist of this and this particular.factor.the judge says that that because.it's not a third party the government.the government's argument doesn't have.the same strength but i don't see how.that can be the rule in a.in a case involving national security.information.well i think i think as i interpreted.that he was saying that i have a.responsibility.to conduct a very much more probing.review if the government.is a party not that the government's.interest is diminished it certainly is.not cnn does not argue.he ends up by saying while the.the court takes the fbi's objection into.account it does not have the same.strength as a third party objection.and i i strikes me as.wrong again not the judge's fault but.wrong in a national security.circumstance now.now let me ask about the fourth and the.fifth factors.i'm sorry i gotta get all the way to the.six so just bear with me i'm gonna.combine the fourth and the fifth so this.this is the the question of intelligent.sources and methods.and um for this what we have.in the hardy six-party declaration is a.statement that the information redacted.on both pages reveals non-public.information about intelligence methods.the fbi is obligated to protect such.information under the national security.act.so isn't that a statement both that that.information.does reveal non-public information about.intelligence sources.and because it has to be protected in.the national security act that.it risks comes to the national security.um with respect to honor the the first.statement that the court said is.corrected.the of course it we take it at face.value that the.the material um is covered by the.national security act.but the hardy declaration goes on to.decline to answer.parts four and five of the hubbard test.it specifically says the fbi.cannot provide any further details.publicly.about the still withheld information or.the potential harms.from disclosure so the government is.declining because such disclosure would.reject those.would risk those harms occurring the fbi.is explaining why you can't publicly.disclose it but it it certainly had.every opportunity.and the court invited it to in numerous.occasions.to present non-public explanations.for it your honor we may not like cnn it.obviously stands for the proposition.that the court should have maximum.openness that transparency serves the.system and i know the court agrees with.that.that's what metlife hubbard and leopold.and league of women voters all stand for.but when it comes to issues of national.security.the the solution is not for the court to.stop asking.questions the court should always be.asking questions under the common law.and the government certainly had.opportunities in this case.to answer those questions in in whatever.fashion it needed.to safeguard whatever interest the judge.you know i will say judge roseberg.was very receptive and there are uh.notations on j.uh 42 46 53 54.56 64 to his role he appreciated his.role.in the sensitivity of national security.information.but what he said when he accepted the.government's.rationale under exemption one for a.bunch of the redactions.and under exemption three for a few of.them is that the government provided a.plausible rationale.tailored to this factual circumstance.the hardy declaration expressly declines.to do that.the hardy declaration is the only place.the government has pointed to.where it has met that obligation and so.it has not satisfied its burden.about the sixth factor so for that one.the purposes for which the documents.were introduced.and the quotation is the public's.entitlement to judicial records is.connect.commensurate with the documents.importance to the judicial proceeding.in question now the.the issue in in in in this as being the.single most important factor the judge.said this is the single most.important factor i i totally agree that.this is a.relevant factor but the idea that it's.the single most imp.important factor the problem in hubbard.is.from a quotation is it it was the single.most important factor in hubbard.but hubbard wasn't saying it was the.single most important factor in the test.and the reason it was the single most.important factor in hubbard was sort of.the.opposite of the argument in this case.it was a uh uh an explanation.for why the information.in the search warrant should be kept.secret by a third party.third party was making that argument uh.i think it was a scientologist.and the the reason uh it was the single.most in fact.important factor there was that that.filing would have disclosed.the very information they were trying to.keep secret that's really the same.argument here.so i i i just i'm concerned that the.court.saw those words the single most.important factor and said it was.when hubbard didn't mean that to play.across the board and even in hubbard the.way in which it was applied.would apply in the opposite way that it.was applied in this case.well your honor whether it's the single.most important factor or just.a factor the fact is that the district.court.relied on the archie declaration the.district the government asked the.district court.in uh seeking leave at ecf 23.to file the archie declaration ex parte.it asked to aid the court in the.resolution of the exemption claims by.filing the archie declaration.we filed the last week you're on our.supplemental joint appendix.uh it's the transcript of the ex parte.hearing that the court held.the court opened up the hearing by.saying i have reviewed the archie.declaration.and i need your help i need further help.and by the way that is an.instance where the government provided.the help the linkage the judge needed.to get over the hurdle the hump of the.argument that.they were making they were quite capable.of making that argument your honor.um and so you know there are other parts.ecf49.the district court in the original.summary judgment ruling relies on the.arc.archie declaration of three points and.judge boseberg left no doubt.in this ruling at jh 6263.he relied on the archie declaration as a.fundamental document.that influenced his judicial decision.making and that's where.we read the argument to lie um in part.six.i might also mention you know some of my.colleagues have a chance of uh.please take it up all the time thank you.i apologize.i'll i'll jump i'll jump in um.it seems like the thrust of your.argument for a lot of the factors that.judge garland was going through.is that the government should lose.because it wasn't specific enough.in explaining why the redacted.lines should stay redacted.my worry is if they had been more.specific.through a.ex parte in camera.declaration that provided more specifics.you'd be asking for that now you'd be.asking us to unredact.their explanation of why they.shouldn't unredact what's now redacted.what do i do with that concern.um your honor i i i can't say that we.wouldn't.i think it's something that the court.has to take argument by argument by.argument.there's certainly a lot of litigation.cnn is involved in a lot of it in the.district court.trying to unseal court records that is.not an appropriate part of the process.it would give judge boazberg and the.other district court judges.the information that they need to make.the determination however.that if that ex-parte filing justifies.the ceiling of the archie memorandum.in this case then in all likelihood we.would not be able to prevail either.under the common law.or alternatively argued in this case the.first amendment access standard.and the court would have the information.that it needs to weigh.and so um your honor that that is not an.unlikely scenario.um but it is not an inappropriate one.either.and it would give the district court.every tool it needs to make the right.decision.well it might explain why the the fbi.here was not more specific.they may have thought well if we're more.specific.that will stay redacted under the six.factor hubbard test but.you know six factor tests are not the.most predictable tests and we don't know.what judge will get we don't know what.panel will get.if we go on bunk we don't know where.he's on punk we just don't know.exactly what will happen so we're going.to err on the side of not being specific.in case that eventually gets under.adapted but but since we're.low on time let me ask you the same.forfeiture question that i.i asked um the the fbi uh.assume i think they forfeited their.exemption three argument in the district.court.you didn't make that argument in your.appellate brief that they forfeit it.their exemption three argument the.district court so does that mean.that you have forfeited your argument.here.that they forfeited their argument there.well we have to go back.one more level deep your honor the.exemption 3 argument.was raised on the rule 59 e motion.the 59 emotion was denied the judge said.that they had their opportunity.and they waived the argument on summary.judgment.they also did not appeal the appeal they.listed it as an item in the notice of.appeal.but they did not brief any error in the.rule 59e.argument and so i think the waiver.balance if that's how the court is.looking.uh weighs heavily against the government.as to whether the exemption three.argument is live in this court.your honor if i may also just go back.very briefly to your previous question.judge garland may i just um add a couple.more sentences yes but i want to.like let's see if george mullett has any.questions and then you can do that at.the end.okay well i'm happy to have him.manchester that's he's there okay.go go ahead all right mr problem go.ahead um just to judge walker's um.point um your honor you know in our.review the fbi has.a solemn duty to make its arguments to.this court in as narrow a fashion to.allow.public access to judicial proceedings.and under foia public access.to agency records we would hope that the.fbi would use.um every reflection and introspection.in presenting affidavits uh to the court.and in presenting ex-parte arguments.and so if there is a chilling effect on.the fbi.if they are worried about um exposure of.x part d information because cnn or fox.or anybody else comes in and asks.for public records i would argue that.it's a healthy part of the process.that there is a common law test that.this court has fundamentally and rigidly.applied.for the last 40 years and that that.would that would have a healthy.impact on the process and i have every.confidence in judge roseberg and the.other courts.in this district that they will reach.the right accommodation when they see.the information presented to them.all right i wanted to ask.um let's talk about the let's say you.have.let's just assume that uh he's filed a.foia request for the rg declaration.not a common law access um and the.district court is a new.whole new case and the district court.looks at the archie declaration in.camera.to try to figure out um if exemption.3 or 70 really applies.if they do apply you agree you couldn't.get the declaration under foia.correct um if it if it meets the.standard under four.for the exemption yes.could you still argue that that.in-camera submission i'm not talking.about the affidavit i'm talking about.the actual in-camera submission.you could still obtain it even though.you couldn't get it under foia you could.still.obtain it under the commonwealth right.of access.as long as the factors broke in your.direction.well your honor um nobody appealed the.the foia documentary i'm not i'm asking.a hypothetical here and that is can you.obtain.under the common law uh.access to right of access to judicial.records.anything that isn't available under foia.just because it was smelled.in camera your honor i think there are.two ways the court could go.my preferred route would be to follow.the common law analysis.and if it broke down and if it broke in.the government's favor on factors.four or five or any of the others then.no we could not obtain them.um the other way that the court could go.is to say that um as in the fec case.i think it was in ray sealed case the.only reason the document is being filed.with the court is to see if it should be.sealed or.unsealed and under that case it is not.subject to.um the hovering factors although i'm not.sure what you're i guess i'm not quite.understanding your argument.i don't really want i don't want you to.tell me what the court could do i'd like.to know what cnn's position.is and is it that as soon as that that.document's filed in camera on a foia.case.a complaint could be amended to say we'd.also like to now get that.in-camera filing under the common law.right of access.and what you could do you could amend.the complaint to say that.i don't think there's any dispute about.that and the question is is there any.case that you can imagine in which the.answer to the foia question.and the common law access question would.be different.um your honor cnn believes that any.document filed in a court.should be analyzed under both the.hubbard test.and the first amendment so yes it would.be subject to challenge.yes isn't this exactly the question that.was addressed in that life.mr tobin in in that life the the the.argument was made.that the right to information.that they could seek the right.information through foia they gave it.any.right to receive it under.the common law and the court held that.foia only applies to documents in the.executive's hands.and once the executive puts them into a.court filing which is what happened in.that case.it's not to the extent the court has.control over the document it's not.controlled by the.freedom of information act it's.controlled by the.court assuming it's a that's exactly.right wrong.yeah but the answer is yes it could be.released i didn't make that clear i.apologize but that's exactly right.all right so your position is that the.in-camera document itself.could be released under judicial common.law access standards even if it would be.withheld under foia.under the rules and.metlife didn't involve an in-camera.pilot in cameras this very.you know unique procedure that we have.for the resolution of foia cases.and i'm trying to figure out if your.legal position is that.as soon as you invoke that process that.foia allows for for in-camera.filings then.immediately that document suddenly.becomes.available under a both under the.district court surely couldn't order the.government to release it.unless it found no foia exemption so the.founding we haven't found a foreign.exemption they can't order.the agency to release it but it could.the court could release it itself.well in that life your honor the.documents were filed in camera.under dodd-frank in a sealed appendix.and.and in that case as judge garland said i.feel.isn't the same thing as when parties.feel filings all the time.right but formal in-camera proceeding is.not the same thing as a sealed document.but that's what happened in the.district court in the metlife case that.the documents were reviewed.in camera and then on appeal um.the party argued that it was subject or.actually in a motion for access and then.on appeal.that it was subject to the common law.test and judge garland.and the other uh judges on there that it.should not be released under the foia.provision.i'm sorry john they're finding there.because the dodd-frankers have.incorporated the.foia uh process and exemptions and so.was there a finding there that it would.not be really it would be forbidden to.be released by the agency under foia but.it could be released by the court.there was not that specific finding.that's what i'm asking about okay.all right um.would you agree if information in the rt.declaration were in fact.protected by exemption three the court.should not release it.or it still could under the six factors.i i think your honor that the the foia.the finding on the foia does not answer.the hubbard test completely.i'm just talking about exemption three.here i'm not talking about all the other.exemptions under foia which you know.there's a lot of.those i'm talking about exemption three.and and to be.clear of course national security.protection under exemptions.there's a lot of exemptions for statutes.no i think i think it could rejudge.roseburg's opinion to say that he.assumed.it fell under exemption three but even.arguably.your position but your position is even.if it's protected by the national.security act could not be released under.foia under exemption three.it can be released under the ballot put.aside the forfeiture issues it can be.released under the balancing test.that's the command of the metlife test.yes your honor that is our position.okay thank you.all right i know we're out of time on a.rebuttal.um that's more our fault than.mr poems so if you want to take two.minutes go right ahead.i'd like to make uh just a few points.very quickly um i think.uh judge millett has gotten to a key.problem.with uh cnn's position here and i think.that el ciag this course case in elsa.egg uh indicates that when a document is.before the court.solely for the purpose of uh uh.determining whether it should uh be.released.that the common law doesn't apply and.the consequences of.cnn's position would totally undermine.uh.foia we would have it doesn't take much.difficulty to imagine situations where.there would be.a fourier request for all kinds of.documents the requester would say.district court please examine them in.camera to be sure.and anytime that did the document could.be released under the common law under.totally different uh standards than what.foia provides.um the second point i'd like to make is.um.cnn hasn't argued that the district.court.um mistakenly accepted.the uh ex party declaration for.in-camera review.so there's a real disconnect here.between saying uh.uh the foia litigant can't have access.to this information.um but after the case is resolved a.member of the public could come in.and get it i think that's a real problem.with their uh.position and the third point i'd like to.make um.i just don't understand that point.because the foia litigant is also a.member of the public and can always.assert.common law access rights right but.i i think it's just it's odd to think.that you can.uh litigate the foia case and uh the.requester can't have access to.information for the purpose of.kind of a statutory claim but then later.you can apply.totally different uh factors to release.it to.you know someone else um that seems to.be not.an ideal uh situation um and then the.final point i'd like to make.is um cnn acknowledged that this.uh that it didn't dispute that this.information was covered by.the uh the national security act and.um i think that should weigh very very.heavily.in these uh four five and six factors.this court said in the angry sealed case.that where congress passes a statute.restricting an.agency's ability to put information on.the public record that rarely if ever.should the.hubbard factors overcome that the.district court here.said that because the government's.investigation was at an end.so too is the strength of the bureau's.argument but.coverage under the national security act.which relates to intelligence sources.doesn't depend on the existence of an.ongoing.investigation all sources are protected.whether there's a current investigation.or not.so for those reasons because in.before the district court the government.did invoke 7e.to protect protect law enforcement.confidential sources but now.we're not hearing about southern e we're.told about the national.security act and exemption three is.every.fbi confidential source.covered by 7e also.an intelligence source covered by the.nsa.or why wouldn't if not then why how.how do we make that jump.well the national security act.specifically relates to.intelligence sources and um i believe 7e.relates to confidential sources in an.investigation.so you could have a source in an.investigation that has nothing to do.with intelligence.it could be someone you know saw someone.on the street breaking into a car.someone's in a drug organization that.could be a confidential source.without being an intelligent source or.relating to an intelligence method so i.think those.those are i'm just trying to understand.how we got from the government you know.wasn't presumably was thoughtful in all.of its filing that was explicit about.this is a 7e confidential source for law.enforcement.and it wasn't until rule 59 in here that.we suddenly heard that the same.confidential law enforcement source.or method supposedly at risk here.is also an exemption three one it just.strikes me.as quite hard to believe that the.government wouldn't have noticed when it.evoked 7e whether that person was also.an nsa intelligence source.so just to be clear the archie.declaration.um uh.was describing information that was.withheld.um under b1 as being classified.pertaining to an intelligent source.um so it was clear from the very.beginning.that that was an intelligent source uh.material the government also.where was this clear that it was an.intelligent source.references to 7e if we look at.the party declaration in the hardy.declaration in the archie declaration.itself um this is on page ja 146..these redactions come from a section.discussing why.material in one of the comey memos that.was not requested by cnn was requested.by another party and then dropped out of.the litigation.rta is describing why this information.is classified.under section 1.4c of the executive.order.um that same underlying information in.the comey memo.uh the government asserted exemption.three this was in the first round of.summary judgment briefing before it came.up to this court and was remanded.so that the underlying information was.flagged as relating to an intelligent.source.because an exemption one classified.information.is of a dif an even higher caliber.than an exemption three nsa.and you're not claiming that the archie.declaration.information issue here if i heard you're.writing your response to judge garland.well you're not claiming that this is.classified information.or exemption one eligible and so the.only.jump i'm seeing is from the hardy.declaration invoking 7e.for this source methods information.to exemption three and now you're.throwing attention one on the table.which is making things more confusing.for me right.i'm sorry so i'll walk through kind of.step by step uh.initially in the first round of this.mitigation.um one of the documented issue.uh had one of the comey memos at issue.had.information related that was classified.relating to him right now.yeah and that's that one thought are you.saying that this.this archie i'm sorry just because we're.short on time this portion of the archie.declaration is speaking to the exemption.one information in the coming memo it is.it is you can see on the heading on j146.consumption.one information that's right it's.describing why the underlying.information is extension one.and it's doing that using information.that would be protected by ignorance why.did harvey talk about 70 and not three.so just to move on to the next step if i.could um.uh so after the archie declaration was.filed or.with the uh at the same time rather uh.the government moved for summary.judgment with respect to this memo that.cnn didn't request.right and uh the government said this is.protected by b1.and then there was a separate section of.its summary judgment uh i believe this.is.document entry 2018 with something.around that there's a separate entry.that says.this material is also covered by.exemption 3 because it relates to.intelligence sources and it's often the.case that something that's covered by b1.under section 1.4 c will also be b3.because they both relate to intelligent.sources so that was the.the first round so we had already.established that the underlying.information is b3.um then we have the uh six.party declaration which says that the.information.in the archie declaration um is covered.by the national security act.and it had already been uh litigated in.this.uh case that the national security act.was a v3.exemption statute um so that's the.connection it wasn't just uh that it was.a law enforcement source there's been an.ongoing claim.this underlying information relates to.an intelligence source as well.okay i hope that that was a little more.clear i apologize.so for those reasons we asked that the.uh judgment be reversed.all right thank you all very much um and.i think judge walker did an excellent.job on his first.outing uh we'll take the matter under.submission.and the clerk can call the next case.thank you all thank you.so.all right case number 16-1430 truck.trailer manufacturers association.petitioner versus environmental.protection agency at all.miss theodore for the petitioner mr.byron for the respondents.miss henderson for the respondent's.interveners.theodore uh good morning elizabeth.theodore on behalf of petitioner truck.trailer manufacturers association.i'd like to reserve five minutes for a.rebuttal and i'll start with the epa.regulations and then.trying to admit stuff um so the clean.air act speaks directly to the question.whether the epa can regulate trailers.and they fear that it cannot.section 7521 authorizes the epa to.regulate motor vehicles.and section 7550 defines the motor.vehicle as a self-propelled vehicle.designed for transporting persons or.property.on the street or highway and since.trailers are not self-propelled.that is game over for for the epa and if.the court had a chance to look at the.28j letter.that we filed yesterday the irs just.reached the exact opposite conclusion.from the epa and said that that same.language unambiguously excludes trailers.so so one of these two will violate the.apa and.it's clearly the epa's rule um the.self-propelled limitation.also precludes epa theory that it can.regulate trailers as part of a.quote-unquote tractor trailer vehicle.trailers are the only thing designed to.transport people or property on the road.or highway that is pulled by something.else and the term self-propelled had to.have been designed to exclude trailers.if he doesn't dispute this and has no.alternative explanation for this.language.and that text would be completely.meaningless and ineffective if the epa.could just regulate trailers on the.ground that they're.pulled by tractors and taxes or.self-propelled.congress obviously knew the trailers.were hooked up to some football vehicles.when it's when it chose to exclude them.um the tractor-trailer theory fails for.multiple other reasons.um there's no such thing as a unitary.tractor trailer vehicle tractor.and trailers are never permanently.married to each other they're separately.regulated under federal law.they have separate vehicle.identification numbers under federal law.many shippers own six.trailers per crafter why do they have to.be permanently.married as you said you know the.question is what is their.what is their status on roads and.highways and on roads and highways.when we're traveling on roads and.highways they are.a single unit that's how they transport.property so there's no.one tractor and one trailer that's a.single unit um.and i mean the proof is in the putting.so the epa is clean but light is i'm.asking why why.you were sort of there's not one as in.permanence.but um maybe there's one somewhere in.the country that i don't know of but if.they're.if i guess if there were that would that.count if there were.actually uh someone who owned both a.tractor and a trailer and.at least you know rented his service for.her services out for.moving stuff with that person then with.that with that vehicle then.the trailer and tractor combined count.that still would not be a motor vehicle.under under it doesn't matter whether.it's permanent.or not in your view but then why why.isn't it when it's on the road.together that's what the statute is.looking at is on the road and on the.highway for for the epa on the road and.on the highway.and that's how they function together.if i'm driving by a semi truck i don't.think i'm going just by the tractor i'm.going by the combination of the two and.if i feel like i'm.hit by a semi truck i've got to be the.two of them together that's going to be.causing the terrible harm to me.and my reason is that when you get to.weigh stations.they weigh it together as a single.unitary and that's what the gross.vehicle weight at a weigh station.measures is the single unitary weight of.the thing of the tractor.and its trailer and contents together.well.so in the context of the of the clean.air up.it's very clear that the motor vehicle.can't be the joint tractor and trailer.and.and just look at the rule itself isn't.it very clear and i'll explain.so there's a there's not a single aspect.of this rule that actually regulates a.joint.tractor and trailer um and that that's.because it's impossible under this.package so.just one example is the certificate of.conformity requirement in section.7522 that requires a certificate of.conformity for a motor vehicle before.it's sold.but you can't get a certificate of.conformity for a joined tractor trailer.because they're always sold separately.and that's uncontested so that that.provision would be impossible to apply.if the quote-unquote.regular regular gold motor vehicle was.the tractor trailer.and the regulation in fact requires a.separate certificate of conformity for.the tractor and for the trailer.it's not treating them as a single as a.single motor vehicle.um and similarly so the epa.can only regulate vehicle manufacturers.under the statute that's also.uncontested.trailer manufacturers don't manufacture.tractor trailers they only manufacture.the.the trailer um and just you know so.the government relies on this engaged in.language but you know no one would say.that goodyear tire companies engaged in.manufacturing.vehicles just because it makes tires and.tires because on vehicles.um and similarly the warranty provisions.in section 7541 are incoherent.if the if the vehicle is the tractor.trailer so that provision requires the.manufacturer to.warrant the motor vehicle to the.so-called ultimate purchaser before it's.sold.and first of all there is no ultimate.purchaser.of a tractor trailer because again.they're always sold separately.um and second of all epa's theory would.mean that the trailer manufacturer has.to warrant that the entire tractor.trailer complies.which is impossible because the trailer.manufacturer has nothing to do with the.tractor.um and epa theory also.so it says that it can regulate trailers.as like a clinical integral component of.a tractor trailer.that makes the clean air authorization.of motor vehicle engines and engine.manufacturers utterly superfluous since.engines are obviously an integral.component of a vehicle.um and so so for all of those reasons.but again i would return this to the use.of the word self-propelled in the.statute which is obviously intended to.exclude failures.epa has no authority to regulate why is.why isn't the.tractor for all intents and purposes the.engine.that gets attached to the trailer and.then makes the trailer move.right that's really what the function of.the tractor is is to haul the trailer.around.to make the trailer mobile and able to.be moved to different places.perhaps but that doesn't make the.trailer self-propelled.it means the trailer is propelled by.something else now the statue does talk.about.regulating it does talk about regulating.both engines and vehicles.they both can be yes so regulated.suggests to me that there's some.regulation of vehicles that's distinct.from.regulation of an engine.so so i think the goal of the the.separate authorization to regulate.engines or vehicles.authorizes dpa to regulate engine.manufacture separately.so that they don't just have to apply.regulations to engines in the context of.regulating the motor vehicle after the.engine has been incorporated i think.that's.the real goal there why isn't this the.incorporation.when it becomes a tractor trailer why.isn't that the incorporation of the.engine into the vehicle.so i think if the epa wanted to regulate.you know a motor carrier that assembles.a tractor to a trailer.maybe they could do that but they.certainly can't regulate the trailer.manufacturer.so the statute says manufacturer include.manufacturing or assembling of the new.motor vehicle so when you say maybe it.seems like.it's not a maybe it definitely could.regulate an assembler isn't that right.it definitely can regulate an assembler.um i think there's a question whether.putting the trailer to the tractor.creates a motor vehicle.uh for all the reasons i explained that.like the certificate of conformity and.warranty requirements yeah that's.with respect to this regulation just to.be hypothetical for a moment and picking.up on.judge millett's questions so the term.motor vehicle means any self-propelled.vehicle designed for transporting.persons or property on a street.or via our highway when it's assembled.it is self-propelled.and and it and it's designed for um.transportation on a highway so that.would seem.to be able to regulate assemblers.and require an assembler to only.assemble a vehicle that.meets the emission standards as an.assembled vehicle.potentially potentially um and you know.as we said in the in the regular.comments if epa's theory that a tractor.trailer is a motor vehicle under the.statute.um has any legs then the only thing they.could do would regulate the assemblers.but there's no.trailer manufacturers which is who is.being regulated in this regulation.are not manufacturers and are not.assemblers um.let me let me turn can i ask um sorry i.don't want to.keep you from getting to what you want.to get to but uh if could epa.has a regulation that says.tractors are banned these types of.tractors.are banned from traveling on roads and.highways.if they're pulling loads that cause the.tractor's emissions to increase by.xx amount and that xx is some fancy.computation of sort of on average how.much.trailers cause tractor emissions to.increase.possibly and i thought if i could do.this it could do that which.it could do that right i don't see why.it couldn't that's a direct regulation.of tractors and their emissions.i think i think probably yes and the and.the current i'm going to get into the oh.so go ahead and finish.the current tractor regulations do do.sort of assume a hypothetical trailer.load as well.but it's not the same thing as.regulating trailer manufacturers.wouldn't that be i guess it seems like.it's you're saying that they can do.indirectly they can't do directly what.they can do indirectly because if they.were to pass something that said.no tractors can go on the road if their.emissions.are up at the level they would be if a.trailer were attached.everyone knows what's going to happen.every trailer manufacturer is going to.have to put on.some of the things here the aerodynamic.curtains and uh backing and the tires.and everything to get themselves under.that limit otherwise.no one's gonna be able to pull their.trailers well so so.the the members of the tqma are actually.totally fine with attaching equipment.that their customers demand.but you know it does make a difference.to a regulation regulates right so.motor motor vehicle manufacturers like.their billion dollar organizations.trailer manufacturers.the overwhelming majority are small.businesses um.and this is this regulation imposes huge.compliance costs.and congress didn't intend for trailer.manufacturers to bear those costs and.it's clear that it didn't because it.used the word self-propelled.um let me let me turn to the nitzer.rules um.so the epa's clear lack of statutory.authority means.that the court should vacate the entire.portion of the rule because.mrs rules are non-separable for bpas and.under the broadcaster's case.the rule is non-favorable if the agency.didn't intend severability or.if the remainder of the regulation.couldn't function defensively without.the stricken provision.um similarly the supreme court's heading.kmart that uh.it's nonseverable it's striking the.invalid parts of them care the function.of the regulation as a whole.have those rules ever been applied when.you're dealing.not with a single set of regulations but.separate regulations issued by two.different agencies.is several ability even the analysis to.determine.whether those regulatory schemes.function.yes your honor for a couple of reasons.first of all i mean that.all of this course discussion and the.sprinkler's discussion of the rules.it takes the text which is the rule and.looks it and looks at.each part um but but more specifically.in the delta case.which is this court's case the court did.essentially apply a separability.analysis to a joint epa and it's a rule.and it said that they were severable.because in that case.mitch's rules weren't dependent on epa's.um.and that's just the severability.analysis so so you were going to be.non-segregated.right i'm sorry i thought you wanted.them to be not severable.and in delta they were several in delta.they were severable and delta is just.example of the court applying the.severability analysis in the same way.to a joint agency rule here of course.the rules are.the initials are very clearly dependent.on these rules.um and so can you elaborate on that a.little bit.because i i took your.reply brief to focus in particular.on three aspects of the regulation.that would not work if you took the epa.out of it and hopefully i can remember.all three.right here one was the compliance.certificate distributive conformity.only epa can issue that another was the.setting of the standards.under the regulations epa sets the.standards.and then the third was the testing.so to see whether or not a particular.trailer.would satisfy the standards that epa.sets the regulation imagines that the.epa.will do the testing.the the government says.that that will all basically work even.if you take epa.out of the equation can you go through.each of those three.and ex explain why you think that's.wrong.sure and let me let me start with the.certificate of conformity.um so there's no distinct.that the epa is not issuing certificates.of conformity because this court stated.schools and health but it doesn't have.authority to regulate trailers.um and the nisa standards in particular.section.535.10 state that manufacturers may not.introduce vehicles into commerce without.a certificate of conformity from epa.and that manufacturers not completing.these steps do not comply with the mixer.fuel consumption standards.and you obviously can't because the.government i'm sorry interrupt the.government says.we just scratched that part out so now.now the trailer.manufacturers don't ever have to get a.certificate of conformity.um problem solved right so.and there's sort of two responses there.are the first is that's not the way.severability analysis works right.the question isn't could the rules be.rewritten in a way that.would allow them to function the.question is whether the rules as written.can function without destroying.provisions and that's very clear.um and and second you you can't strike.the certificate of conformity.requirement and it's the core.part it's a core regulatory requirement.and it's the only way that trailer.manufacturers.can even be assured that their vehicles.are in fact compliant with the.substantive standards.so i mean you can ask the government but.i just don't know how the the regulation.could possibly function.on the other two the setting of the.standards and the testing.um couldn't epa just continue to set.standards.that on their own do not have force of.law.but nitsa could take the standards that.epa.sets and apply them to trailers with the.force of law.and same with the testing epa could.still do the testing.you wouldn't get fined by epa if you.violate epa's tests but you would get.fined by nixa.so i i don't think there you are and.i'll.provide the same response which is that.the regulations as written.just don't make any sense they can't.function if you strike the epa.the epa regulations because there would.be cross-references to.to nothing to invalid provisions but.also epa can't regulate without.congressional authority i mean.nissa can't outsource its authority to.another agency without congressional.authority to do that.um and and look i mean the agencies.don't even really believe what they're.saying because the fact the matter is.epa is not conducting the testing right.now it's not issuing certificates of.conformity.and that's because this court said it.didn't have authority to do so.um one last question do you have a sense.of what this.costs this this regulation of trailers.for the trailer manufacturers for the.economy yeah for the trailer.manufacturers.you know i don't know for the economy.but for the trailer manufacturers you.know it depends on the manufacturer but.for some of them.you know the compliance will cost.millions of dollars and and again these.are small businesses this is this is a.big deal for them.what i mean nationwide you have a sense.are we talking about a billion dollar.impact on the industry more than a.billion it's it's okay if you don't know.i'll ask the government the same.question yeah i don't i don't know the.answer.um okay so.so i think you know this the the the mr.rules are way more intertwined than.than other rules that this court has.held um.non-separable before and i i don't think.it's really i don't think this is.really subject to reasonable dispute um.there's no way that mitsu would have.adopted this exact same regulation.cross-referencing epa's rules 400 times.and i ask is that the question.is a question about uh function.question of nitz's intent or just a.question of whether.it's arbitrary and capricious if we.uh sever a part and leave the rest.i mean the intent is clear they've said.what their intent is we wanted to stand.alone.it could still be arbitrary capricious.and that that i think is what the.function test goes to i don't see or in.a circumstance where.the agency hasn't told us what their.intent is then of course you would look.at it is that do you think that's the.right kind of analysis.i think the function test is independent.of the intent test and that's what the.court said in broadcasters independent.because.what are we relying on for it what.authorizes the court to make a function.test.is it the arbitrary capricious standard.i don't i don't think so because i mean.it applies to the same analysis of.process statutes as well.um but that there.in the case of your side there it's used.to determine the intent where intent.isn't clear.i'm asking you where would we get the.authority to simply say.that this doesn't function unless it's.because.it's arbitrary capricious without the.other part of it.um i mean i suppose i suppose you could.you could say that i i don't i don't.know but it's clear the court does have.the ability because.i mean the supreme court has the kmart.decision which says that the question is.whether the.weather striking one part of the.regulation wouldn't validate that.would impair the function of the.regulation as a whole so it may be.to remind me in that case was the.congress expressed its intent.in the kmart case yeah it was a.regulatory case um.okay then in that case the expression.i'm.i'm i'm not sure but i can see that in.the broadcaster's case.from this court the agency did have a.separability clause and.nonetheless held that the regulations.were non-separable because they couldn't.function independently.which sounds like because they were are.returning capricious.they wouldn't have they have a rule that.doesn't function.and i think that makes a lot of sense as.the explanation for the analysis okay.thank you.so let me turn quickly to the nips a.question.um even if the rules were severable and.it's a lack's authority to regulate the.quote-unquote fuel economy of trailers.um.and that's because trailers don't have.fuel economy under.under the definition in the midst in the.esa.um it agrees that trailers don't consume.fuel and so the standards that are being.issued here are not fuel economy.standards within within that definition.um and second trailers aren't.vehicles within the meaning of visa.either um vehicle image context clearly.means fuel consuming vehicles that's.what all the other vehicles on the list.are and section 108 of the eso refers.interchangeably to this category of.vehicles as trucks.um which under the statute and.under nisa's long-standing regulatory.definition does not include trailers.and i'd like to reserve the remainder of.my gate can i ask the.the nitsas organic act.as a motor vehicle means a vehicle.driven or drawn by mechanical power.so if you're looking anywhere for the.closest.definition you look at this agency's own.statute.and this is clearly the vehicle driven.by or drawn by.mechanical power in fact it is a vehicle.drawn by mechanical power.well congress did not of course.incorporate those provisions.into the usa i did not incorporate that.definition.that's true but they also didn't.incorporate the epa's definition of.vehicle.that's true and we're not relying on the.epa's definition to.analyze the the meaning of vehicle in.the usa but there are a number of other.textual clues including the statues.focus on fuel.the definition of fuel economy the fact.that the statute refers.interchangeably to trucks um.when it's describing this category of.vehicle and trucks of course our.vehicles that have mode of power um.the fact that the one provision of the.eso which refers to trailers also.distinguishes between trailers and.trucks.um and the fact so so i mean all of.those are very strong taxable clues.that what congress meant here did not.include trailers.all right for the questions from the.bench if not we'll go to mr byron.thank you judge garland please the court.thomas byron from the department of.justice here on behalf of the federal.government agencies.both nisa and epa independently.exercised.their authority under their respective.statutes and.interpreted ambiguities in those.statutes to permit the agencies to.regulate.tractor trailers as the relevant.vehicles.subject to fuel efficiency and.greenhouse gas emissions.regulations the statutes themselves.do not address congress that is to say.did not specifically preclude.the agencies from regulating tractor.trailers as motor vehicles.in this way so this question comes down.to step.two of chevron and the reasonableness of.each agency's explanation.for its statutory interpretation.and here the agencies mr byron uh.mitzvah just recently i'm going to try.to find this issued a regulation.in 2020 that said.it talks about a vehicle and a trailer.attached to the vehicle.um and that excited in the.manufacturer's brief it's from april.30th.2020 emits itself.talks about a trailer as recently as.this year.as not being a vehicle but rather being.something that is attached to a vehicle.um what.what do i do with that judge walker i.think you're referring to what the.agencies.call the safe rule which is that's right.under the.uh underneath his cafe authority that is.the corporate average fuel economy.authority.governing automobiles and light trucks.does not of course cover.uh or even in any way.turn on any um other regulation that.that does affect tractor trailers so.there's no doubt.it's talk it's not talking about.tractors and trailers it's talking about.a regular car and something we might.hitch to the back of a regular car.that's exactly that's right that's.helpful.rule and the cafe scheme as a whole.which does not cover tractor trailers.before i forget do you have a sense of.the question i asked miss theodore about.what this costs.the industry your honor i don't recall.the specifics but i can point you to the.part of the record that does address.that and that.is the um impact analysis.and the regulatory impact analysis so.the.ria the regulatory impact analysis.begins at ja 429.the impact assessment by the agencies in.the final rule.and this is not specifically the.economic impact on the industry but but.that section begins at ja 135.and within that section my memory is.that the agencies.did address the economic impact on.trailer manufacturers specifically i.apologize they don't have the specific.pages.i'll i'll stop interrupting you at least.for now not at all your honor um.so i do want to so i went.i do want to link the question you asked.about the cafe regulations.to epa's analysis of its statutory.authority here.which i think confirms the point that.judge mallette was getting at in one of.her questions.which is how the agencies here undertook.a real world analysis a practical.analysis of how.tractor trailers as motor vehicles are.perceived as a single vehicle proceeding.down the highway by other.vehicle operators that's important here.and it does reflect as well the room.that congress left within.both statutes but when when.epa was interpreting its authority under.the clean air act.to regulate tractor trailers as motor.vehicles one thing they made very clear.is that the tractor without the trailer.or the trailer without the tractor is.not itself.a single vehicle only because the two.are designed.to work together are they a single motor.vehicle that's quite different the.agency explained.from an automobile or a light truck.pulling a separate trailer which is what.you know i think you were referring to.in the safe room if i recall correctly.unfortunately i don't have a safe role.in front of me um the.agency explained that that significant.difference.is what underlies its statutory.interpretation here.the tractor trailer is the vehicle.subject to regulation.i don't i guess i'm a little confused.about that because surely you regulate.the track if you had somebody who had.one of these tractors and just.liked driving this great big thing down.the road.never attached trailers to it that.tractor would be completely regulated by.whether it attaches or not to trailers.that tractor is itself regulated.by these provisions because it's.transporting a person.your honor um the question isn't whether.any individual driver.intends to use it the question is.whether the vehicle under 75.21 2 is designed for transporting.persons or property.and that tractor is designed for.transporting property it's also.designed for transporting the driver i.don't think that's an accurate.um understanding that's certainly not.the interpretation that epa has given to.that provision and that interpretation.is a reasonable one your honor.the the tractor is is designed to.function as part of the tractor-trailer.vehicle.i guess i'm having a little trouble.understanding that because one i've seen.these tractors going down the road by.themselves presumably they've dropped.off a load don't have another one to.pick back or they're driving to the next.place.to pick up a load and it's definitely.designed to transport.the person to and from should we say.work.where they pick up trailers it has a lot.of them have little cabs in the back.with little bedrooms and everything.they're definitely.designed to carry that person to and.from.calling assignments and then through the.carries that person through the.halloween assignment i don't.and and you have are you saying you.can't regulation.regulate the the emissions of the.tractor itself.judgment the agency has not said that.and i'm not taking that position.here what we are seeing what the agency.has said and what we are.defending here is the proposition.that these tractor trailers operate as.single vehicles.on the highway they're designed to.operate that way of single vehicles.and each part of the tractor trailer is.subject.to the requirement that epa.imposes that any manufacturer of a motor.vehicle and that includes both the.tractor manufacturer and the trailer.manufacturer here.can be required to obtain a certificate.of conformity.under the clean air act regulations the.any manufacturer.language is what really does a lot of.the work here and i don't think that.petitioner's.argument fairly addresses the statutory.scheme as a whole.by focusing solely on the motor vehicle.because.here the motor vehicle is the tractor.trailer as a single vehicle.both manufacturers are within the.statutory.requirement of any manufacturer that can.be required by epa to obtain the.certificate of conformity.all of that is it's not a vehicle even.under your view it's not a covered.vehicle until the two are put together.no i don't think that's right judgment.it certainly is.a motor vehicle when the two are put.together and by the way i think you.asked about.you know whether there are some.operators and again it doesn't matter.whether an individual operator does.anything.it's how they're designed but certainly.true as well and the record reflects.that some operators.do keep their tractor and their trailer.combined.full-time essentially but that's not.that's not essential.here and and the key point is that the.um the agency understood its authority.to cover the tractor trailer.when both parts are designed to work.together uh.and and that both manufacturers can be.subject to those regulators is there any.manufacturer that manufactures both the.tractor and the trailer.i'm not aware of any of your honor so.but again.the the whole idea of any manufacturer.is an expansive.concept forward and as expensive as this.quarter supreme court have recognized.um but fundamentally it doesn't matter.whether the clean air act or uh epica.as modified by isaf authorizes.the agency as long as it authorizes an.agency to regulate tractor trailers as.long as the other.statute does and here no matter what the.court thinks about one.authority the other authority in this.case.uh nitz's authority under apta is is uh.uh ample to support the regulations.uh of nitsa under.to impose fuel efficiency requirements.on track so.mr byron on that point can you walk.through the.the three things that i was asking miss.theodore.about how let's say that we find the epa.he didn't have the authority to do this.let's say we find that nixon did.um mitz's regulation mentions epa i.think 400 times.and in particular there are.at least three things that the.manufacturers.argue just just don't work in this.regulatory scheme.when you take epa out of it once the.compliance certificate.one is that only epa issues one is the.standards that only apa sets.and one is the testing that only epa.does.can you talk about how each one of those.things what would happen to each of.those things.um if we strike down the epa's authority.but we we find that nitsa did have.authority.certainly george walker and if i may.step back just for a moment to.put that in context the the key point.here is that all three of those.are elements of the compliance mechanism.that each.agency adopted with respect to its own.requirements.and so the fact that nits are required.in order to demonstrate compliance with.the fuel efficiency.regulation required a manufacturer to.obtain a certificate of conformity from.epa.that's merely a mechanism of.demonstrating compliance with the fuel.efficiency regulation.it's not itself a predicate.that requires epa to have independent.regulatory authority under the clean air.act to set its own standards.so you're saying that nitsa nitsa would.allow a trailer to be.manufactured even absent an epa.certificate of conformity.well i think judge walker that two.alternative approaches are equally.available to the court in the scenario.you've outlined.i do want to hear them but but can you.can you answer that one first.wouldn't it would mitsu allow a trailer.to be manufactured that doesn't get.an epa certificate of component.so yes your honor if this court were to.hold.that the epa regulations.providing a mechanism for trailer.manufacturers to obtain a certificate of.authority were themselves invalid then.yes of course nitsa would permit.other mechanisms to comply demonstrate.compliance with the fuel efficiency.regulations.um this court equipment are those.mechanisms in the regulations already or.wouldn't it.make them up uh well your honor i think.uh they're not there's not an.alternative specified.to obtaining a certificate of conformity.um but but there's also.but there there are other ways that.nitz's regulation.specifies that trailer manufacturers can.demonstrate their compliance with the.fuel efficiency regulations.by submitting the compliance information.either.through epa's database or directly.to nitsa to its own database the cafe or.to the cafe database.that's how you just said nitsa won't.allow a trailer to be manufactured if it.doesn't get an epa.certificate of information well your.honor if this court strikes down.and this is the important point that.that i need to return to in just a.moment.but if this court were to strike down.the epa regulation.that permits trailer manufacturers to.obtain a certificate of conformity.of course as a consequence of that nips.it could not require.trailer manufacturers to do something.that this court said they cannot okay so.so that first of the three things is no.longer a requirement what about the.other two epa sets the standards and epa.tests what happens to them.judge walker can i just return to the.other aspect of this.that i didn't get to which is that um.this court could strike down.epa's clean air act green afghas.emission standards without striking down.the provisions that allow trailer.manufacturers like other.heavy-duty vehicle manufacturers to.obtain a certificate of conformity in.other words the.certificate of conformity is not.available.because because nitsa has specified that.the certificate of conformity is.required this court could conclude.that the certificate of conformity.mechanism could remain in place to.permit.compliance with nancy's regulation my.point was that if.that both paths are could you just say a.little more on that i'm sorry to.interrupt also as long as you're on that.topic.so what would be if if we were to say.that uh.trailer is not a vehicle under the uh.clean air act.what would be epa's authority to.uh issue certificates of compliance.judge garland.of course a lot would depend on what.this court concluded about the.scope of uh the clean air act and the.epa's authority.but unless this court were to conclude.that.its interpretation of the clean air.precludes epa from assisting.uh in its compliant in in compliance.with the fuel efficiency regulations.so i'm asking what what permits it to.assist in that way.so assume all we hold is that it's not.self-propelled that means that.the regulation of emissions of trailers.isn't permitted.what's what authority remains for the.certificate of compliance well your.honor remember the distributive.compliance.mechanism in the epa regulations is not.directed.solely to trailer manufacturers but to.all heavy duty and.in fact other vehicle manufacturers as.well.and here mitzvah merely adopted the.existing.regulatory scheme now it happens that.the regulatory scheme.at the time nitza adopted it and again.this was to reduce the burden on.manufacturers so.so the petitioner here is turning the.regulatory virtue into a vice.but the the point of adopting that.existing.framework was to minimize the burden on.manufacturers in doing so.even if you know epa didn't have.authority to adopt that framework.with respect to trailers on its own.the fact that it had adopted the.framework didn't preclude for other.manufacturers for example wouldn't have.precluded.nitsa from requiring trailer.manufacturers.to use that existing streamlined.mechanism instead of adopting an.entirely new burdensome requirement.now the fact is here of course there is.a specific mechanism.in the certificate of conformance.conform conformity.requirement specific to trailers and.again that's a virtue not advised it.actually minimizes the burden for.trailer manufacturers.by demonstrating that they don't have to.do all of the same things with other.vehicle manufacturers.do they just have to use the formula.that's based on the model.the gem model but all of this is to say.just go back to judd walker's question.that this.court could might or it might not.conclude.that uh the compliance mechanism in the.epa.regulations is precluded by the clean.air act.if it does then that wipes out the need.to obtain a certificate of conformity to.comply with the fuel efficiency.regulations the other requirements of.compliance would remain.if it doesn't then that leads to the.agencies the available.opportunities to specify the least.burdensome most consistent.mechanisms for compliance with nisa's.regulation george walker if i may turn.it.very briefly mr byron standards and.testing can can you.as briefly as you can explain how epa.standards and epa testing.can still continue if the epa epa.standards and epa testing with regard to.trailers can still continue.even if epa does not have the authority.to regulate trailers sure just walker.and standards are easy and i'll just.step back and remind the court that both.delta construction and.massachusetts against epa recognize that.there is a scientific.relationship between co2 emissions and.fuel consumption.so that the fact that the formula uh.measuring fuel efficiency and co2.emissions.is the same is just a a reflection of.that.scientific relationship it's not a.reliance on any epa regulatory authority.and looking back as well in the context.of the cafe regulations that we were.discussing earlier.epa measures cafe fuel economy.compliance by measuring co2 emissions.from vehicles that's how.uh in order to determine compliance with.nitz's cafe regulations so historically.that's how.cafe fuel economy uh has always been.measured for compliance purposes.so then with respect to testing your.honor um the question of testing and.this is just again the auditing uh.function that applies to i believe all.vehicles um.sorry all at least all heavy duty.vehicles in this context.um the fact that mitsub is is.has adopted a mechanism that reduces the.burden.by relying principally or initially on.epas.testing mechanisms uh uh that are in.place.again with respect to the broader.industry.is a virtue not advice and the fact and.the question whether there might be some.other way for nisa in the event it.determines it needs to audit or test a.particular vehicle or a particular.technology is not something that.requires.discord to strike down the standards.themselves.there's no there's no substantial doubt.that nitsa would have adopted the.standards.irrespective of whether it could have.relied on epa's testing.mechanism i hope that answers the three.questions you had judge walker.i would just urge um judge garland if i.may.turn to a question that you raised in.petitioner's argument briefly.the question whether the function test.uh.in the uh severability inquiry.is meaningfully different from the.intent test i think that a fair reading.of the.maryland dc delaware broadcasters case.makes clear that it's not genuinely.independent and it's.it's true of course that the court in.that case italicized the word and.when it linked the two inquiries but.then when it applied the function.test it did so in the context of.assessing the agency's underlying intent.and emphasized uh that.the um that option a.would not have been sufficient to.achieve the commission's goals and in.fact would undercut the whole structure.of the rule.those references to goals and.undercutting the structure seems to me.turn as much on the intent as on.anything separate from intent.in other words it seems that the court.there merely.disbelieved if i may the court's.severability.expression of intent when it itself.analyzed the rules.in doing so here the court uh.can confirm readily that each agency has.independent authority exercise that.independent authority.and validly expressed its intent that.each set of standards.can stand on its own independently.i just asked a question do you even.concede that when you're.talking about two separate regulatory.systems.the analysis is severability.as opposed to simply determining whether.the if if one were to fall and one were.to stand whether the standing ones.provisions that refer to the other um.arbitrary capricious or something i'm.just not aware of separability.being used in this context judgement the.petitioners here framed this in terms of.severability so our brief did so as well.in response.um no party has briefed as far as i can.tell.whether the arbitrary and capricious.standard would apply and and there's no.argument that.the nitsa standards would be arbitrary.and capricious on their own.uh i i'm talking about the regulatory.provisions across your friends epa.and you've made some arguments as to why.it would still make sense or.i'm just trying to figure out why.whether do you agree we should be using.the severability lens.here or simply looking at.you know regulations cross-references.and figuring out what.to do with that so i think that there.are good reasons.to look at this through the lens of.several abilities.and those reasons include the fact that.the preamble.uh was jointly prepared by both agencies.together.that they intended to create a.harmonized set.of regulatory requirements for a single.industry here for in order to reduce the.burden.in that apa regulations come into effect.three years earlier.than just months and that's because each.each statute provides different lead.time requirements of course and the.agencies have independent authority that.they exercise.judgment i don't want to preclude the.possibility as you suggest that the.court need.not adopt us ever build the analysis you.need to tell me.where the government's position it right.if the government agrees with.severability and is not arguing.otherwise and i don't know why we would.spontaneously take on the issue.ourselves.well not only i think your honor is it.correct that you may not spontaneously.take on the issues.yourselves but also because petitioner.has not.argued that the remaining.nissa fuel efficiency regulations would.be arbitrary capricious merely by.referring to epa's regulations.i think they would they have waved that.hard to me so it need not be addressed.by the court.in this context all right for those.reasons your honor we urge the court to.deny.the petition for review thank you uh.thank you mr byron mrs henderson.for the responding your honor and may it.leads the court alice henderson for the.respondent.i'd like to briefly address two of the.issues related to epa's authority.that have been discussed and then turn.to.the um joint compliance regulations.um i i noted judge millett that you you.you made a note of um the authority that.eek would have to set.a tractor standard that would be you.know at a level that would require.trailer improvements and i wanted to.note that.the reason epa structured the.regulations the way it did here.with the obligations for both the.tractor manufacturers and the trailer.manufacturers is because.of the way the industry has segmented.itself so the tractor manufacturer never.comes into possession.of a trailer and that's why it's.necessary to achieve.emissions reductions from the whole.vehicle to to create obligations for.both manufacturers.and ttma doesn't deny that if a single.manufacturer.was in charge of building both the.trailer and the tractor that that whole.vehicle.could then be subject to an epa standard.but.the cleaner act isn't written to allow.manufacturers to decide which aspects of.a vehicle.could be subject to a motor vehicle.regulation by by splitting up the.production among different entities.and i note that council for ttma.made the point that it wouldn't make.sense under the clean air act to.um require a trailer manufacturer to.warrant.that it's that its vehicle would not uh.cause the motor vehicle to.be in non-compliance with an emission.standard this just proves that.it doesn't make sense to treat a trailer.as park it is.fully one half of this very large motor.vehicle the largest motor vehicle on our.highways.and the fact that it the ax doesn't.even written in a way that would allow.treatment of the trailer as a part just.goes to show.that it must be regulated the way that.epa has reasonably done so here because.otherwise you'd have to assume that.congress intended to create a really.large gap.in the regulatory structure and it's.implausible.to think that.congress would want to regulate other.heavy-duty vehicles that have cargo.sections like ups delivery trucks but.not.the cargo section of a tractor trailer.which serves the same purpose.but at a much larger scale and with.greater resulting emissions.um is that argument ms henderson a.little bit different than.the government argument i take the.government.to say and i'm on page 12 of the red.brief congress did not address the.question.whether the agency could regulate.trailers you seem to be saying that.congress wanted the agency to regulate.trailers.our position is that epa's uh.determination that the tractor trailer.is a motor vehicle is a.permissible interpretation of ambiguity.in the statute.well see now there used some sound more.like the government that.congress really didn't make a choice on.whether.epa and perhaps even it's uh.actually it's nitsy here too um should.regulate trailers sure is that your.position.no your honor these are two separate.rules that are operating.under two distinct statutory authorities.our position is that uh nissa has.effectuated the unambiguous intent.of issa and should be upheld at step one.of chevron and that epa has permissively.interpreted.ambiguity with regard to the meaning of.motor vehicle in the cleaner act.i'd like to address the uh issue related.to the compliance regulations.esa creates authority for.epa to promulgate the regulations that.it has.here and the authority that epa has.under esa is completely separate from.the authority the epa has under the.clean air act.to set an emission standard and so all.of the regulations that are necessary.for a manufacturer to.comply with a fuel economy standard.uh can be upheld under epa's.esa authority so in in the k.if if the court finds that.i'm sorry could you it's hard to.interrupt with uh.um could you cite the statutory.provision nissa that you're referring to.sure so 32904 of issa.um directs the epa to.calculate average fuel economy for a.manufacturer.subject to a standard under 32902.b of the act um and the.state interveners lay out the.the statutory structure um in their.briefs.um and three two nine oh seven and three.three two nine one oh of the of.um epcot under the energy policy and.conservation act as amended by esa.also uh clearly contemplates a central.role for epa.in facilitating implementation of.fuel economy standards and this is true.of.um all of the vehicles that are covered.under this rule.as far as this plus for a moment may not.have all the necessary statutory.provisions in front of me but.uh 32904 says epa shall calculate the.average.fuel economy of a manufacturer subject.to.now which of the provisions should.follow.what's the definition of manufacture for.purposes of that.of that section so.that 32904.um which references manufacturers.subject to a standard.under 32902b um.unambiguously includes manufacturers.subject to.a heavy duty standard under 32902b1c.and that's what the the state.interveners argued in their breeze.okay thank you sure.and so um.just going back to the functionality of.the compliance regulations if this court.were to find the epa.lacks clean air act authority so the.remedy.for that finding would would not be to.invalidate all the regulations that.could be upheld.under epa's esa authority and everything.that.a manufacturer would need to comply with.a fuel economy standard.is is written in those regulations that.that uk has clear authority to.promulgate under isa.ms henderson could your argument.with regard to the role of epa under esa.cut against you.and here's here's why i'm wondering that.um if esa imagines a regulatory role.for epa and if the epa doesn't have.authority under the clean air act.to regulate trailers then it seems like.maybe we should.interpret esa to not cover trailers.i wouldn't say that's true your honor.these are two separate and distinct.statutes that serve.completely different purposes and this.chord and delta construction recognized.that when it held.that even if an epa standard were.vacated the.nixa standard would remain because it.was a separate action with independent.legal effect.um and and maybe just to clarify epa.doesn't have authority to set an.emission standard under esa.but esa contemplates a really central.role for epa.in aiding in the implementation of a.fuel economy standard and that's because.of.the expertise that epa has in testing.and.that relation that that role for epa has.been.understood under the energy policy and.conservation act as well as.a visa which amended it and 32904c.also says that to the extent practicable.fuel economy tests shall be carried out.with emissions tests.under the clean air act um.but there aren't i'm trying to figure.out how that intersects with the ability.of mits of regulations to.rely on epa to do some of the.measuring and certifying.here does it help or hurt because.they're no longer.going to be doing if they were no longer.hypothetically doing emissions tests for.trailers.would this support or not support.that cross-reference to having them do.the measurements and calculations from.itself i think it supports.the position that epa has clear.authority to promulgate the regulations.that it has.to facilitate implementation of fuel.economy standards.as you noted it's to the extent possible.um.to align those with emission standards.and if there aren't.comparable trailer greenhouse gas.emission standards in place that.wouldn't affect epa's authority or.ability to.um you know execute its regulations.that it that it has promulgated for this.rule.um and and i guess i'll just note on.that point.as well that um the.compliance process regulations that.we're talking about here.are written as instructions to.manufacturers about how to.generate the the input values for a.formula.and then that formula fits out a number.and.and manufacturers are able to compare.that number to.the co2 level and compare that number to.the actual.substantive numerical epa emission.standards so.in no way are these regulations.dependent on the existence of an.emission standard.they're they're drafted to facilitate.both the compliance with emission.standards and fuel economy standards.but they aren't intertwined with the.substantive emission standard.it's finished i don't pretend to.understand.the to be able to do the math that is in.the formula but i imagine that.there's some part of the formula that.is a variable based on the particular.manufacturer.and there's some part of that variable.that is a number.chosen by epa maybe.maybe the denominator is a number chosen.by epa maybe.it's i don't i don't know where it is.formula.but if epa is choosing.at least some of the numbers that go.into that formula.not not a formula that's all variables.but some of the numbers that go into.that formula.i i think that i think that's different.than just saying.well there's a formula with nothing but.x y and z's and mitsu can take that.mathematical formula and decide what.should be y what should be z and we'll.make x.the the information we get from the.manufacturer like those.two different things and which which one.are we talking about here that's a great.question and.the i think the best way to answer it is.to say that the regulations.um as you as you correctly note include.um values that a manufacturer has to.generate.by their own testing as well as values.that.are coefficients that are plugged into.the formula.and none of neither of those values.requires epa.to do anything other than review the.application.that manufacturers submit the the um.coefficients the the values that epa has.created.as you mentioned are static and they're.already written into the regulation so.there's nothing new being created.when a manufacturer is seeking a you.know confirmation of its compliance with.a standard.but if i heard there in the middle it is.epa that's.picking the coefficients it's not.so it's the the coefficients are written.into these compliance regulations and.housed under title 40.they support both epa's emission.standards and.nisa's fuel economy standards.so are you saying congress picked the.coefficients or epa picked the.coefficients or something else.um well this is a joint rulemaking.between epa and nisa so.you know i can't tell you all of the.process that led to the development of.those numbers but.i think it'd be fair to say that the.agencies developed them together.i see i'm out of time uh thank you.and um in closing i'll just note that.you know these are the largest spray.trailers are the largest segment.of the largest vehicle on our roads they.contribute substantially both to the.air pollution and the fuel consumption.that congress design these statutes to.reduce and i would urge the court to.uphold those agencies standards.all right thank you miss henderson um.miss peter we're out of time but as.we generally do we'll give you two.minutes for rebuttal thank you.a couple quick points so first of all on.this notion that there's some sort of.gap here the clean america has been.around since 1965.and trailers haven't been regulated at.all during the entire time.so it was completely plausible that.congress did not intend the regulation.of trailers.on the epa uh rules um i heard no.response from responding or interveners.on what the word self-propelled could.possibly be doing in this statute.if it wasn't intended to exclude.trailers which also means.that epa can't get around that by.claiming it's regulating tractor.trailers.um and the notion that a tractor without.a trailer is not a vehicle as i as i.heard mr byron say.it doesn't make any sense cpa has been.regulating tractors by themselves for.years.including in the phase one standards um.so when you turn to the argument that.the esa.gives epa authority to do this is just.completely wrong.so section 32904 only authorizes.regulation of manufacturers.manufacturers is defined in section.3290114.to mean a person engaged in.manufacturing automobiles.and section 329013 defines an automobile.as something that's less than 10 000.gross vehicle weights.um meaning not a heavy duty vehicle and.that's because.3294 actually isn't part of the visa it.was added in 1994.when nisa only had authority to regulate.light duty vehicles.and if you look at the government's stay.opposition they they admit that this.provision 32904 does not authorize the.regulation of trailers even under their.theory that a trailer is abused but.3294 just says a manufacturer subject to.section 32902 b amd.and so it seems to me that just the.question is.if they're if trailers are included.in the ether definition.of motor vehicle then they are.manufacturers subject to.32902 b and therefore covered by.32904 am i wrong i don't think so yeah.because they're not a manufacturer.manufacturers that find in the statute.and it's defined to mean someone.who manufactures automobiles which is.defined to exclude everything.well why would they refer to 32902 b.through d which includes then both.automobiles and.heavy truck vehicles and things like.that it's because 3294 was enacted in.1994.before that other provision was amended.and it's just a cost reference.to be when dean was different uh before.the issue.the mask uh but but in any event i mean.the epa.doesn't rely on issa so it doesn't.really matter because.what matters is what the is what the epa.actually claims regulatory is.already under and at j238 they make.clear.that they're only relying on that on the.clean air act um.so turning to the separability analysis.very quickly.um the question is not whether.every provision of mrs rules couldn't.function.it's whether uh it's whether striking.eks would impair the function of mrs.rules.it's very clear that it would and i.heard no explanation of how a.manufacturer could possibly determine.whether they comply.if they can't get someone to tell them.that their trailers comply.um but also i mean the testing.regulations it's.trailer manufacturers they can't simply.plug numbers into the equation.they have to do tests and the.regulations make it very clear that epa.has to pre-approve those tests.um and so in the absence of epa acting.to pre-approve those tests.you can't even figure out whether you.comply with the regulations in the first.place.even putting aside the absence of the.certificate of conformity.response to the question whether.severability is the right analysis.um i certainly think the the united.states has waved any argument that it's.not.um and and again the delta case from.this court it applied a separability.analysis to a joint epa mixer rule the.document of them being bifurcated i.don't know if that's.well it gives you to talk about the new.invite for canon so.so the delta case is the case that said.that the petitioners didn't have.standing big rights.because they only challenged the epa.portion of the rule.and there's no accessibility because the.nuclear portion of the rule.would stand in the absence of the epa.portion of the rule.and the court said the question in.deciding whether that was so.was whether mitz's provisions were.dependent on epas.so that's that's the same question that.were that we're addressing here.defendant is not the same thing as.several.like they could very well be whether.they can operate.in a non-arbitrary way without cross.references.given the cross references that's all.i'm.struggling with i guess i didn't see.they talked about.whether the fuel economy standards.cannot be bifurcated from the greenhouse.gas.emission standards but it wasn't clear.to me that that was a severability.analysis as opposed to.um you know however you want whatever.you want to call it i think it's the.same functional analysis the question is.whether.the mixer rules can operate as law.without the operation of the epas and.you could call the severability analysis.you could call it an arbitrary and.completionist analysis which we.certainly haven't waved since we argued.within its rules were non-functional but.functional and made no sense.without the epas so i think the court.could call it whatever it wants to call.it.but the question is really the same.you're looking at the rule and you're.looking at whether.sort of what the scope of the remedy is.and what what you have to vacate and.you can't leave nice's provisions.if they're completely making zero sense.without the epa's which.they do make zero sense and again.that's that's the world we're living in.right now um right now there further.questions from the bench uh 32904c.is that limited to cars.or would that often apply to covered.heavy vehicles i'm sorry let me let me.just pull up three two nine four see i'm.sorry.it talks about each model so i'm not.sure if that means cars are.yeah so 32104c also refers to a.quote-unquote manufacturer.manufacturer is defined in statute with.reference exclusively to.non-heavy-duty vehicles okay thank you.all right we'll take take them out you.have something more.i would just close by asking the court.to act swiftly on the stay.uh because it really it really is.creating an enormous problem for trailer.manufacturers right now that they can't.take orders while asserting their.customers that they can actually.sell those trailers can i ask one very.quick question on the this day thing.it seems like the has the harm already.been done the irreparable harm i mean.you.you all have to start preparing for.january 1st as if this rule's.going to be in effect and i suspect you.can't start doing that.tomorrow september 16th.absolutely yes i mean there is.irreparable harm going on.right now every every day and that's why.we would ask the quartet to act as.quickly as i can on this but there's.some irreparable harm that has not yet.happened well for example if a trailer.manufacturer could take an order.tomorrow that would be that would be.very helpful um.and if the court's regulations than a.trailer manufacturer could do that and.could offer a trailer for sale in 2021.when did the irreparable harm start okay.when did the irreparable harm start it's.been ongoing it depends on each trailer.manufacturer because you know they sort.of had.a rough estimate um.in the last in the last month or so i.mean trailer manufacturers are starting.to take orders right now.but there's like three or four months.leave time okay thank you also.given the stay on epa um what what have.the trailer manufacturers been doing.with respect to compliance so the.trailer manufacturers have.asked epa if epa is going to issue.certificates of conformity.epa said no the trailer manufacturers.have asked epa if there's anyone in this.they can talk to epa.said it has no idea um so the trailer.manufacturers are.sort of just planning for trying to.think about.you know building warehouses to store.this equipment and you know potentially.to comply even in the absence of a.certificate of conformity but but.basically it's impossible i mean that's.that's something you've talked to.about he said they've talked to epa have.you ever talked to.about what you do there's no one in it.there's no one at nissan who will talk.to them about what to do.the trailer manufacturers of that and.this is in the decorations they've asked.the epa like who at nitza.we'll do we'll implement this and uta.says they have no idea.okay uh and further questions then we'll.take the matter under submission thank.you and the court will take a.brief recess thank you.honorable court will now take a break.recess.i am going to ask it to please stop.straining.i am stopping the recording and.attorneys law clerics jays and i.t.i am putting you all in the waiting room.you will not be able to hear or see.anything while you're in the waiting.room which is perfectly normal i will.bring you back when the judges are ready.to hear this birthday.thank you.you have been put on hold by the host.you cannot listen or talk.until the host releases the hold.now.hello.oh.so.here.yes.two.my.foreign.now.max.no.no.now.this.now.so.all right i think i'm good though you're.good.screening again i am going to start.recording.meeting again it is recording and.all right this honorable court is now.again in session.case number 19-53-59.united states department of homeland.security at all mr sheldon for the.assailant.mr ron kumar for the absolute.mayor please of court my name is robert.sheldon i'm arguing on behalf of the.appellate uh elder cruz.i'd like to reserve three minutes for.everybody.um virtually every person in the united.states has ancestors who came here as uh.immigrants many of them are playing.persecution even those that came in the.mayflower were fleeing religious.persecution.none of these ancestors were forced by.armed police.to go to a place controlled by criminal.gangs where they or their families were.likely to be murdered raped.kidnapped or robbed especially with no.hearings or procedure.on june 24 2018 president trump tweeted.when somebody comes in we must.immediately with no judges or court.cases bring them back.from where they came then in announcing.the migrant protection protocols the.defendants.denounced misguided court decisions and.outdated laws.we can see the administration first made.the decision to force 65 000 asylum.seekers including 16 000 children to.mexico.and then they looked around for a law to.justify their actions.these asylum seekers included mr cruz a.college senior who escaped guatemala.when his life was threatened by gangs.who had already murdered his best friend.because of his sister's church.activities.so the defendants found the statute at 8.usc 1225 b2c.and decided to claim this for illegal.authorization.however the statute doesn't work at all.for their purposes.i'd like to explain first why the mpd is.not authorized.by the law at all second white.especially isn't legal for people like.mr cruz who were in the united states.when they were apprehended.and i'd like to move on to due process.withholding of removal international law.and junction factors and other arguments.will you start can i just ask for what.the status of his um.uh removal proceeding is he has.barely begun i mean he went to master.hearings.and he hasn't even been able to submit.his asylum application.he was supposed to submit it in court.but the court was cancelled.because you know whatever all the courts.are all the mvp courts are cancelled.right now so his.among them so he's never even submitted.his asylum application.um thank you so section 1225 has two.relevant subsections b1 which is people.with no documentations and fake.documents which is.obviously which all the mpp people.including mr cruz.um should be under and b2 which is for.other people.basically those who arrive to the united.states legally with documentation.but they're inadmissible in other words.they've committed some crime or they.have some other.other disability the supreme court in.jennings versus rodriguez said these are.two separate categories.and the ninth circuit and innovation law.labs.found that these subsections are.mutually exclusive which we completely.agree with.obviously a b2 can't be a b1 because.they have documents.but at the same time there's no way a b2.can be a b1.for several reasons first of all the.title is other.aliens which you know it's a ninth.circuit other means other.um and then second the statute is you.know this is the main reason i mean the.status specifically and expressly.has a has a section called exception and.it specifically says you cannot apply b2.to someone to whom b1 applies.let me interrupt if you if you could um.if someone who.is eligible for v1 doesn't fit.ever into the b2 box how is it possible.for immigration to do what they.frequently do.which is take someone eligible for the.b1 box.and instead send them into the.non-expedited proceedings provided for.in the b2 box okay.so that's a great question um you know.the statute clearly says they can't do.that.but then the um you know the bia in a.case called erm.so they can go ahead and place them in.proceedings i mean the you know the vi.basically said that when congress said.you know shall.shall be removed if they don't go into.credible fear they actually meant.will i mean those are the words so i.take it it sounds like your.argument is that um.that although it is frequently done the.statute.actually prohibits it and if we adopt.your reading of the statute then we.would.be concluding that this common practice.by homeland security is illegal.um no your honor no not at all um.because emr doesn't say that i mean.that's what the government says emr says.that they're completely you know that's.just simply not true at all.emr says they can be placed in removal.proceedings.nowhere does it say they can be placed.into b2 which is just a complete.invention on the part of the government.let me try asking a.different way is it legal for homeland.security to take someone.who qualifies for b1 expedited removal.and to put them into non-expedited.removal procedures.not i mean there's no provision.whatsoever the law clearly says they.can't do it anymore doesn't.er helen so he doesn't say that either i.mean it's it you know they they like i.said they they needed to find a statute.and they.they just play everything but it doesn't.work at all.is there a tension between your two.statutory arguments.let me let me tell you why i i think.there might be and then you can tell me.why.uh if i'm off base you can come and rely.on off base.on the one hand you make the argument.that you've just been making that.an immigrant is either in the b1 box or.the b2 box.the b2 box with regard to undocumented.immigrants.applies to people who have been in the.country.for two years or more.that's because the b1 box applies to.people who are arriving.without documents and to people who have.been here for less than two years.without documents if that theory is.right.that the b-2 box only applies to.undocumented among the undocumented.population the b-2 box only applies.to those who have been here for two.years or more.how can your second argument be correct.that b23 when it says.an immigrant who is arriving in the.present tense.how could that ever apply to anyone.because as you've defined it.in the universe of undocumented.immigrants at least.b23 is not supposed to apply to anybody.who's been here less than.to any v23 it's not supposed to be.applied.to anyone who has been in the country.less than two years at the same time you.can't be arriving.if you've been here longer than two.years.right thank you your honor that's that's.a completely misreading of the statute.the statute divides into two groups okay.b1 is people without documents.and people who have fake documents um.b2 is everybody else so there's you know.this is just uh i mean i guess the.government likes to create what they're.trying to do is create a lot of smoke.and make this a lot more complicated.which you know immigration law is.complicated but the statute is really.pretty simple.um in that sense it's um i mean.let's say mr sheldon let me let me ask.can you give me an example of an.undocumented.um immigrant that b23 would apply to.your honor that's okay basically.everybody who has documentation in other.words anyone let's say they're coming i.don't know.mr sheldon can you give me an example of.an undocumented immigrant that b23 would.apply to.yeah someone who came in a tourist visa.and over the state i mean they are.legally entitled to be in the country.and then they overstayed.um or yeah i mean actually b2 is.supposed to be more for people who are.coming to the united states so it really.wouldn't apply that much to people in.the united states if that's what the.court's referring to.but you know it could i mean it could.under the terms but it's really designed.for people that are arriving to the.united states that have documents.that have a legal status have a visa.have a legal status.but they're inadmissible that's what v2.is for which obviously excludes.everybody in.in the mpp i mean it's it's really very.very straightforward.i can ask the fact question i take it mr.cruz was 300 yards from the border do.you know how long he'd been across the.u.s border.time wise i'm sorry i mean we don't know.the exact time.he says you know long enough to go 182.feet.um you know it wasn't a terribly long.time but that's certainly.not my last last question for now and.then i'll i'll.get um out of your way out of my college.way.thoracing m says that.an immigrant who is 25 yards it dealt.with an immigrant who was 25 yards to.the border and it said that that.immigrant.has not entered the country that.immigrant is arriving.um i i i suspect you will tell me.that anyone who's 26 yards or farther.from the border.has entered and is no longer currently.arriving.um is that is that.right yes that's completely correct and.for a lot of reasons i mean.you know they do process clause i think.the court would you know that.judge walker you would agree that it's.an extremely important goal of the.framework of the declaration.of the constitution um they wanted to.protect individuals from the executive.branch more than any other purpose of.the constitution.and you know and then we've got it we've.got the fact that.you know when they wrote the.constitution i mean everybody you know.there were immigrants everywhere.so so then they deliberately when they.wrote the due process clause they use.the word persons instead of the word.citizens because they wanted to include.immigrants i mean that's obvious.for example three of the first members.of the u.s supreme court.were immigrants i mean the idea that.they wouldn't have applied to democrats.is actually quite absurd.so i mean that's why you know that's.that's the reason so.so there's been and not only enough it's.been a long history.throughout you know the entire since the.constitution was written that they.they said you know brightline rule if.you're in the united states you have a.right to due process if you're outside.the united states you.don't and that's been as clear you know.i've got a ton of quotes i can.you know where they said anyone in the.united states legal non-legal these are.major.cases that have been cited over and over.um.and you know matthew diaz i mean.you know way way back back to 1886.where they said anyone within the.jurisdiction of the united states.entitled the new prophet.and you know this case from thoracium.comes along and it's it's kind of an.aberration i mean they didn't.i mean it's kind of the first time the.supreme court has decided.not to give due process to someone.physically in the united states.although you know the government comes.up with all these others but this is not.true i mean.you know what what the question is.sometimes in the rafferty case from the.circuit and landed people since it's.whether to extend it to people outside.who are entering.but the law is very clear if you're in.the united states you have a right to do.process if you're at the border.the entry doctrine is another story but.that doesn't apply in this case.so i said yeah you know it's very.troubling because i mean there literally.is no.principled way to limit it i mean if if.immigrants have due process if everyone.has due process because it says persons.and why not citizens and you know can.you apply to u.s citizens on the border.i mean why not.so so um you know we just think it's a.very troubling decision we would ask the.court to limit it to the 25 yards.which they actually get i mean in their.own decision they said it could only be.applied to people who are in the.respondent's position which is 25 years.older and also people who are caught.which my response.might uh you know the ability wasn't.caught he was.he was he turned himself in so we think.that's a distinction i would just have.to court the limits for us again to the.facts which is what the court actually.did.thank you ask about your and i don't.speak french so you're also your.non-refilement interview.sorry i'm butchering that for the french.people um.if he were what do you think that.would entitle him to beyond the hearing.that he already got.um is it just reviewed by an immigration.judge or do you think.then judicial review of the immigration.judge's decision what.what are you saying that since he.eventually got the interview.um is did you complain only about the.process for that interview or your.planning.review process i'm just unclear thank.you.um that's um you know i mean basically.it's a quote judge ledger in the ninth.circuit i mean you're giving them.nothing i mean.they don't even ask them the question.they don't say are you afraid to go to.mexico but in his interview they did ask.him that.but not before they throw him out of the.country i mean this was after he was.brought back a month later.but before he was thrown out of the.country he wasn't asked anything and.they're expecting somebody to go.to you know the the the the border.patrol and say i'm afraid to go to.mexico which.you know you have to look at these.people i mean they've been abused some.of them have been abused by their own.governments by the way.he got a later interview if he had.gotten the same interview he got later.right before they before they returned.into mexico for the first time.would that have suffice um for a lot of.reasons.no i mean that you know the standard.that they're giving is is.more likely than not which is the.highest standard you know that.they could possibly get i mean.incredible fear they ask you know do you.have a credible fear even which is a.very low standard it.one tenth of the standard um this is.extremely high standard that they're.getting right at the initial stage.i mean i you know it's basically you.know ever since the 1200s i mean there's.certain.basic requirements to do process and one.of them is definitely i don't want to.i just want to talk about sorry i don't.want to i don't want to lose track of.what i'm asking for.obligations for non-refinement um.so your first point is that it should.have happened right away the first time.before he went and the standard of.review.is wrong they should ask him he.shouldn't have to spontaneously raise.the concerns is there anything.beyond that notice before the hearing.i mean you know there's a lot of things.you should have been given um.like a council i mean you know lawyers.are pretty important to these.procedures more than even you know if it.was americans i mean these are people.some of them are children i mean they're.ten-year-old children some of them are.you know they've been raped in their.countries they've been.they've suffered horrific persecution i.need to expect them just to know what to.do in a foreign country.they don't even give them a translator.by the way i mean that's not even.required.it's it's really i mean you know just.what you're saying you're giving them.nothing i mean literally there's nothing.there.um you know a right to if they if they.ask they get a hearing and then their.the highest possible standard is applied.to them so you know there's no way this.meets either due process.or the united states obligation center.the withholding of a mobile statute.which you know it's very clear you.cannot send so you cannot.refuel somebody um you know if.they will be subject to persecution when.the government tries to get around it by.saying well it's mexico it's you know.but.nowhere does it say you can't be sent.back to your you know it says it doesn't.say it has to be your homeland it says.to any country and that would include.mexico so clearly.the government has an obligation to ask.questions and to give them.some kind of a fair hearing you know.something it's not just.you know someone someone basically.supposedly asking.questions without any you know with no.process whatsoever and then supposedly.reviewed and apparently you know just.anecdotally i mean.the reviews are basically you know.somebody.that gets granted then the reviewer just.turns it around and says no you.shouldn't cry.thank you mr let me ask is there anybody.else on the panel who has a question.because we're out of time i figure.i haven't even gotten to my main.argument which is the arriving alien.you know that he was in the united.states which which i really would like.an opportunity to go ahead i thought you.would uh use you had to discuss that.argument with judge walker no yeah i.mean that's.that that's you know so our first.argument is the statute doesn't apply to.anybody.the mpp should not be applied at all but.then are even strong you know now we.think it's 100.but then our even stronger argument is.that it certainly shouldn't be applied.to people who are.in the united states because because the.statute right on its on its face is.entitled people who are arising on land.uh you know the title says arriving and.then and then the the subsequence is.arriving on land.and and you know arriving is a very.clean meaning i mean everybody knows.what arriving means of course you know.in the space of the basket said the only.other court that looked at this i mean.they said look you're either arriving or.you're right there's only two.possibilities and.you know the claim are right because of.course you're going to write he's not.arriving.and the supreme court definitely said in.sarah garcia that.it's not just the moment of crossing.the border right so that's due promises.here we're just talking about the.statute here i mean the statute they.have no right to use a statute.against somebody in the united states.the statutes are rising.on land i mean my client was not.arriving the statute doesn't apply even.if they had to do process rights to do.this.the statute just can't be more clear i.mean arriving online is not.you know it's a very plain meaning we.don't need to use.is not used a lot but the word arriving.is used as a rising alien and that's a.very very common phrase in immigration.and a rising.alien means somebody who's arriving at a.port of entry the definition is.very clear it's under hpfr one thousand.point one for.a one thousand one point one q if.someone is coming or attempting to come.to a port of entry.um so so you know i mean they just.really cannot use this.but yeah yeah we have the parenthetical.in this particular provision.whether or not it's port of entry right.so then they're using this convoluted.explanation so of course they're.basically saying congress doesn't know.how to say.inside united states and when they said.inside the united states.they they actually said they're not a.designated port of entry.which of course you know i mean why.wouldn't congress just say that they.were planning to overturn.zeros and years of law but then you know.and then they're claiming they have a.right to apply 86 96 hours after entry.which.you know i mean they're saying someone.96 hours in the united states is.arriving according to their.to their definition whether or not but.anyways we would just really like to.give an explanation for that i mean.there is a very clear there is a very.simple explanation which.is it says whether or not a port of.entry a port of entry is defined as a.place with a port director.okay and it just turns out that there's.a lot of places on the canadian border.which are called border crossings but.they're not.called ports of entry and.you know and and i mean i can give one.it's called fort covington on the new.york quebec border but there's many and.they're just little.border crossings with maybe a hundred.people twice a day.and um and that's what congress meant i.mean mr sheldon let's take that example.let's say that there's a border crossing.between canada and the united states but.it's not a port of entry.correct 2bc applies there.give me an example of someone who would.fall under 2bc.at one of these canadian u.s border.crossings.how far into the united states are they.in order to.trigger tbc no we're going to bring.united border crossings are exactly the.same reports of entry except they don't.they're smaller i mean that's the only.difference so so they're you know.they're little little crosby so they.would stop them as they're.crossing the border before they trust.the quarter you're saying they were.stopping with one foot in canada and one.foot in the united states.you know you're rather they spot them.it's exactly the same as the port of.entry they stop them and they.i mean congress just okay let me just.another just quick.i mean when we get to this this whole.section the the.the the contiguous removal who were they.referring to what did congress.you know who it's really a question why.did they put in this whole statute.and we don't think it had anything to do.with central americans and the question.is who's arriving at the u.s border.that has a right to enter but is.inadmissible and you know it's not.europeans because they.would fly here they wouldn't come to a.border then to the you know the border.it's not asians it's not latin american.central america they would fly here if.they have a visa they don't drive up.so really we think it applies to.canadians.and that was the whole purpose of this.statute is is really.i mean it's 35 million people on the u.s.border.that um that saw our are legally.entitled to enter and many of them were.in this one.actually makes sense i mean who wouldn't.rather be in.in in canada you know in toronto or.vancouver while you're waiting for the.proceeding.and i just wanted this comes directly.from the case matter of sanchez avila.which is the case which.which was the inspiration for this whole.station.the statutory section and it just it.says in that case it says on page 154.that service states along the northern.border of the united states aliens are.routinely returned to canada to wake.their exclusionaries.in buffalo new york for example.approximately 120 240 aliens are places.exclusively.between and return to canada to wake.their head a role in an alien into the.united states and canada to wait.exclusionaries are rare acceptance.in other words this was really required.for canada and it actually makes a lot.of sense.that that's what this statute was put in.there for um if you read matter and.francis avila.you know it was really better for a very.specific purpose and never cross.congress's mind that this is.the way it's being used and that's you.know there's so much group of that.mentioned mexicans like they don't even.say maybe a mexican would want.would want asylum which you know and.they spent so much time writing all.these provisions of b1 i mean senator.leahy and others were.fighting you know to make sure it.included all these rights for asylum.seekers.and then the governor wants us to.believe just that they simply threw in.this provision oh yeah you should put.them into mexico with no protections.whatsoever.that's not what it's for your honor um.and and.you know so it really it doesn't apply i.mean.what they said in the ninth circuit they.they just said that um.you know there's no plausible way the.statue can be read.to apply um.to apply to the mpp and then they you.know they said the government's making.baseless arguments in support of any.illegal policy and that's.you know that's pretty much what it is.and then you know but they're not even.considering the.the fact that because they're you know.the ninth circuit.the the people weren't even in the.united states so my point was in the.united states.in the united states which makes it even.so much stronger because.of the language you know arriving on.land and then the due process arguments.all right mr sheldon we'll let you.reserve a little time for our rebuttals.to hear from the united states.may have pleased the court architectural.mark for the government.the district court did not abuse its.discretion.in denying the preliminary injunction.notion.with the court's permission the.government will address the statutory.claims first.the non-refund claims second the.constitutional claims third.and will then briefly conclude by.addressing irreparable harm.uh yeah can i can i can i just ask you.to reverse that order for.just one moment sorry um this question.of um irreparable harm if we.i'm not saying we are but again.hypothetically if we were to decide.mr sheldon is right as a matter of.statutory construction on one.or both of his arguments then.is irreparable harm relevant that is not.if we decide.likely victor on the merits but if we.decide he.is the victor on the merits.the government's response would be that.that consideration would still be.relevant your honor and the reason for.that is that this court has always.described.irreparable imminent harm as a critical.part of the four factor calculus used to.assess.preliminary injunction notions and.importantly the showing of the.irreparable heart are you familiar with.our opinion in the united states.association of reptile keepers versus.zinke.2017 opinion briefly your honor.okay well in that case we held uh that.if we.that we can in preliminary injunction.issue we can decide.fully the merits because it's the first.question and if we decide the merits.fully and decide that he is correct.that this is a statutory violation.that's the end of the matter.and it makes sense that that would be.the end of the matter because.whether there is harm to the government.or not or harm to.the plaintiff or not once we decide the.merits there's nothing left to be.decided.yes so your honor in that situation the.governor would submit that.it would essentially be a conversion to.some sort of disaster.motion uh but again that is simply not.the posture of this case and in any of.them the government.strongly disagrees that mr cruz has.shown the likelihood of success in the.merits.let me just on the i understand your.argument on the second point but on the.first point.let me just read from our own opinion we.note that the procedural context of this.appeal.which was from a preliminary injunction.does not prevent us from definitively.deciding the merits.of the clause's meaning.i mean i think we've decided this.question i don't mean to belabor it but.if we were to decide that you're wrong.and not just that there.that he's likely to succeed on the.merits of the statutory argument but.that he does succeed.that would be the end of the matter just.like in any case once.some once we conclude that the.government violates.the statute we vacate.the regulation under the apa.but now you can go back to your first.argument.before you do that let me ask one more.procedural a question question.if um if the supreme court.grants cert on innovative labs.before we've issued a decision i'm sure.that mr cruz.would say we should continue full speed.ahead and decide our case.uh what do you say we should do.the government shares that you as well.your honor and the reason for that is.this appeal raises a number of distinct.issues not.raised in the petition currently pending.before the supreme court.okay so turning first to the two.statutories yes you know that you know.the status um.when we start filed in that case do we.know.conference listing do you know anything.about that we do your honor my.understanding is the supreme court is.slated to consider the petition.at its september 29th conference and of.course the government will promptly.inform this court in the event that.service granted.okay thank you so turning first to the.two statutory claims.cruz makes two arguments on appeal first.that he is not an alien described in.sub-paragraph a.because he could have been placed in.expedited removal proceedings.even though he was not second cruz.argues that he was not arriving on land.when he was apprehended shortly after.illegally crossing the border.and the government will address each of.those arguments in the tournament.first cruz is an alien described in.sub-paragraph a.because aliens described in subparagraph.a are applicants for admission.who are not clearly and beyond a doubt.entitled to be admitted.who are placing full removal proceedings.under section 1229a.cruz is an applicant for admission who.was not clearly and beyond the doubt.entitled to be admitted.who is placing full removal proceedings.under section 1229.hang on hang on the statute says subject.to subparagrams.b and c so that that all.that language is all subject to.sub-paragraph b.which then says character graph a shall.not apply to an alien who is a.human someone to whom paragraph one.applies.or who is a still away so you have to.if you're if you're within with.exceptions.then you don't go to.uh subsection two here right see.for instance correct yes your honor so.cruza's argument.rises and falls entirely with section.b2b2.that is he claims that subparagraph a.does not apply to him because he is an.alien to himself.let me back up and just to have some.context here.if he were a stowaway the other one of.the neighboring provisions.could the government still put him into.sex section one two two nine eight.proceedings as a matter of.its own prosecuting discussion or.statutory interpretation.so the bia discussed this your honor and.matter of erm and lrm the ina.prohibits dhs from placing stowaways and.full removal proceedings it makes sense.so that third exception is someone who.categorically cannot be put into these.proceedings.what if he were a crewman so if you were.a crewman your honor my understanding is.he would be similarly situated to an.alien like mr cruz who could have been.placed in accidental removal proceedings.but was not.and in this case section 12.5 b.three there is a categorical prohibition.but b1 and b2.are not is your position yes your honor.and as the government demonstrated in.its breed the reason section.5b1 does not apply to cruz is because.the categories of aliens amenable to.being placed in expedited.and full removal proceedings overlap.that is to say.aliens who lack proper documentation.for crews who could theoretically be.placed in expedited removal proceedings.are also applicants for admission who.are not clearly.beyond the doubt congress didn't seem to.think they overlapped it says.it entitled subsection b inspection of.other aliens and that other aliens.heading was congress's.duly enacted choice of phrasing so it.seemed to think.there wasn't this overlap.so in your honor the government's view.is the view articulated in the ninth.circuits.motions panel decision in innovation one.which is.the other aliens and the differentiation.between the categories only occurs.after the inspection decision is made.and again that stems not just from the.overlap i mentioned.but also from the plain text of section.1225 b1 a1.section 1225 b1a1 notes.that an alien inadmissible on specified.ground shall be ordered removed.without further hearing or review unless.that alien is referred for.and passes a credible fear interview.section 1225 b2a by contrast provides.for a different.process whereby the alien is entitled to.a full removal proceeding before an.immigration judge.and indeed jennings described the two.provisions in the same manner.here very much described these as two.distinct.categories of aliens.very describe them as marked them out.quite.distinctly.so i'm not sure what to do is mr cruz.someone to whom.the expedited removal provision applies.but the government chose not to.put him through those proceedings and.chose to give him different proceedings.your honor the government's view is that.mr cruz is not an alien to dream section.1225 b1 applies and i want to circle.back.to jennings briefly and the fact that he.described the two categories as separate.because.again the government's view is this.comes back to what.the ninth circuit articulated in its.emotions panel decision which is.these are post-inspection mutually.exclusive categories not.pre-inspection mutually exclusive.categories.and the reason for that spends again.from the overlap.between the aliens amenable to being.placed in both proceedings.as well as the fact that just by the.plain text of section 1225 b1a1.by its terms it does not apply to mr.cruz he was not ordered removed without.further hearing or review.nor was he referred for for a credible.fear interview.instead he was entitled to a full.removal proceeding before wait but the.the the the ordered without further.hearing.is not a description of people who are.covered by the expedited removal.provision it's a command.to the officer as to what they should do.with someone who is arriving.right it's not part of the definition of.who.is subject to expedite removal it says.what will happen to him yes your honor.but the government's view is.that provision uses the word shall and.commands that immigration officers shall.or the alien based on specified.inaudible grounds.order the alien removed without further.hearing or review and that simply did.not occur here so.in other words there are so you couldn't.apply expedited removal to.you could never have applied expedited.removal to him.could you have something the.government's view is that dhs.does possess prosecutorial discretion to.apply expedited removal to similarly.situated.aliens but elected not to exercise that.discretion in this particular case so he.is someone to whom.i guess in your view both the expedited.removal.and the 12 29a proceedings.apply until you close.the only reason i want to disagree with.that characterization is the government.would not concede that.he is an alien to from section 1225 b1.applies in any way because he is an.applicant for admission.what do you mean like computerial.discretion i mean if it doesn't apply to.him there's no prosecutorial discretion.at all.the reason i mentioned that is there are.no fixed immutable categories of.b1 and b2 applicants and this is the.fundamental error.that the ninth circuit made in the.merits decision that it issued.which is that it assumed that there was.this taxonomy whereby.aliens arrive at the border with a fixed.category and that.aliens who lack proper documentation are.categorically.b1 applicants but that is simply the.other thing to see.but the other things in the crewmen and.stowaways are pretty much categorical.status right that's a categorical status.it's whether you're either a criminal.stairway or you're not.correct yes your honor but again.i wouldn't be too sorry capital b.romanette two.have the same operation.as capital b romanette one and capital b.romanette three.so so again your honor the government.would just go back to the.overlap between the two provisions the.categories of aliens amenable to being.placed.in both provisions and would also point.this court to.matter of erm and lrm which described.the purpose of section 1225 b2b2.which was just to make clear that aliens.were.actually placed in expedited removal.proceedings lack.an entitlement to a full removal.proceeding because that would produce an.incongruent result and here there's no.advantage i'm sorry i think i.didn't hear could you say that again i.think i'm not sure i heard properly.i apologize yes your honor so in matter.of erm and lrm.the bia examined the purpose of section.1225 b2b2 which is central to this.appeal and in that case concluded that.it did not script dhs a prosecutorial.discretion to place.aliens like mr cruz and full removal.proceedings.but rather simply served a clarifying.function that aliens who are.actually placed in expedited removal.proceedings.are not entitled to full removal.proceedings.and so the government's view is based on.that limited clarifying function.there's no basis to conclude that in the.same provision congress intended to.exempt a large swath of aliens.from contiguous territory returning.turning to the next statutory argument.and the government's view.mr cruz's claim that he was not arriving.on land.when he was apprehended shortly after.crossing the border illegally.is foreclosed by the bia's recent.decision and matter of.mvcd which the government notified the.court of via its rule 28 j letter.as the factual circumstance there are.substantially similar.to the circumstances here the bias.decision in the matter of mdcp.is reasonable it's consistent with the.plain text.of section 1225 b2c.and is entitled the chevron deference.in matter of mbcv the bia.grew heavily on the fact that both.section 1225.a1 which defines applicants for.admission and section 1225 bqc.both used the phrase whether or not at a.designated port of arrival.and accordingly concluded that an alien.apprehended near the border.shortly after unlawful entry was.arriving on land within the meaning of.section 125 btc.and the if you can finish the sentence.the government's viewers that decision.is controlling on this issue.it's well now i have another question.your argument is that a bia.opinion is controlling on the dc circuit.i'm new here right so the government's.view.your honor is that the bias opinion is.entitled to.chevron deference and that comes both.from the ina.and as the supreme court noted in ins.versus a wire of wire.the fact that the ina specifically makes.clear that the attorney general's.rulings on questions of law.are controlling and the attorney general.has the authority to delegate that power.to the bia okay let me know that's a.question i was.going to ask um the same question i.asked to mr sheldon do you know how long.mr cruz.was in the united states time time-wise.seconds minutes hours.so there's not a specific record finding.on that point your honor.page 116 of the appendix is the closest.that this report came i believe.the district worked included based on mr.cruz's sworn.statement that after crossing the border.he immediately surrendered to.immigration agents.my understanding is he crossed the.border illegally in the middle of the.night on may 10th.and it appears to be that within a.matter of hours from other himself to.immigration agents but there is no.specific.finding on this point well hang on do.you have a theory.i'm sorry but i just say the form i-213.gives the date and the time.it was submitted by mr sheldon.i guess it's actually arrived in one day.and detained the next day.because it was late at night but it.gives the exact dates and times.so i don't know how you say it's not in.the record.yes.yeah i i was just referring to the to.the record before the disreport.the i213 form i believe was submitted as.part of a judicial.notice motion after a political.government.you don't dispute you just read the form.you don't think we can get.notice of it the government does not.dispute that formula.we have dates and times.yeah it looks like it's about 90 minutes.that's right and it crossed over from.one day to the next day.yes that's the government's.understanding as well the only reason.yeah a decision that talked about.um uh entry talked about.entry the same day.the same day you only have a bia.decision that says the same entry on the.same.entry and detention on the same day.and with uh i think there might have.been 30.it's yards an entry but that's not this.case.so the government's view your honor is.that the facts are substantially similar.and that the bias opinion did not depend.on the physical distance the alien had.traveled.but rather on the statutory text and the.fact that accepting the proposition that.mr cruz advances that an alien ceases to.be arriving.the moment one foot touches united.states soil would render the phrase.whether or not at a designated port of.arrival.completely inoperative and the.government well i guess.i get that but we're not talking about.one foot and my recollection is.sorry i think is that mdcv i can't.remember um.they talked about arriving the same day.and this was way more than what this was.three football fields.this is more than one foot in so i just.i don't know where we have.where where where when do we get a.reasoned interpretation.from the bia on.when do you stop arriving and you're.arrived.so your honor i would point primarily to.page 23.of the bias opinion of where the bia.notes that its reasoning is applicable.to aliens apprehended.near the border or just inside the.border and the government understands.those are qualitative descriptions but.given the nature of the inquiry there.will not be a fixed brightline rule but.the government respectfully submits that.this is not a case that implicates.the outer limits of that definition and.as a practical matter the mvp.guiding principles generally provide.that an alien is amenable to being.returned under mpp if he or she.is encountered within 96 hours of.crossing the border.on the chevron question do you know of.any cases where.uh a government um.agency um which has been litigating a.question.for several years uh.and almost immediately before oral.argument.in a related case issues a chevron.interpretation and the court.accepts that as controlling i understand.the argument that the bia in general.would have this but.you have to at least consider the.context here which is that.the ia certainly knows what's going on.here and that.if it's the case that it can can't.uh in in the course of litigation.interpret.chevron um then.uh i get a chevron deference for an.interpretation why should it be able to.get it when it issues an adjudication.right before an oral argument.so you're i'm not aware of any case that.specifically mirrors.the facts you just mentioned the.government's view is that the bis.decision is entitled to chevron.deference because it.echoes dhs's interpretation of section.1225 b2c.and as for the specific timing of this.decision i'm not aware of any.considerations that have informed that.but again just based on the structure of.the ina.and the fact that the attorney general's.rulings on questions of law are.controlling.the government would submit that check.on deference is appropriate here.what text is i'm sorry judgment.what what text is ambiguous what text in.this.1225 statute it has sufficient ambiguity.that you think it should trigger a.chevron difference.so your honor the government's view is.that if this court concludes that the.term arriving is ambiguous then chevron.defense should be triggered and the bis.decision should be entitled to wait.okay did you say 96 hours is the rule.it's the general principle you're.honored there's no general principle.so that particular document is not part.of the record below.i'm happy to profit to the court if the.court believes it would be useful.what is based on all right i don't know.what it is.is this a regulation a policy statement.a handbook.where does 96 hours come from it's a.guiding principles.document so it's an operational document.that dhs is issued to its border patrol.agents to effectuate the statutory.authority at section 1225 btc.you don't claim any difference to that.though no your honor.that's merely for additional context and.to dispel any concerns about.hypotheticals of aliens who have been.here far longer than 96 hours being.returned under mpp and again i'm happy.to submit that.to the court if the court requests it it.was not submitted below largely because.the arriving claim was not raised until.oral argument before the disreport.and i think maybe it is there i think.maybe page 11 of the appendix.is.u.s customs border protection migrant.protection protocols guiding vegetables.yeah yes i'm referring to a different.document those outline the general.principles applicable to mvp writ large.the document that i'm discussing honed.in on this specific issue.when border patrol agents considering.aliens to be arriving on land.for the purposes of section 1225 b2c so.the.the mpp protocols and guidance don't.reference 96 hours.the the specific grading principles that.are currently in the appendix do not.refer to that woman are there other mpp.guidance or principles that do reference.nine to six hours.aside from the document i just mentioned.i'm not aware of any other documents.okay i know that my time has long since.elapsed that i would like to briefly.address the non-refillment claim so the.district court correctly concluded that.section 1252.a2 b2 bars judicial review of this claim.and as an initial matter mr cruz does.not address that holding.his opening brief so it's the.government's view that he's waived.any arguments he might be able to.advance on this issue but in any event.the government submits that the district.court's holding was substantively.correct.and consistent with this court's.precedent section 1225 btc.provides that the secretary may.return aliens provided that they are.statutorily eligible.and that no other provision of the ina.constrains that authority.in any way in other words section 1225.b2c.bears both hallmarks that this court.attached substantial importance to.in jew vs gonzales and considering the.national interest waiver statute.compared i'll just back up and ask one.more time.c talks about in the case of an alien.described in sub-paragraph.a and then some care.begins subject to paragraphs b and c.and just to be clear so your definition.you don't read that subject of paragraph.b.and c is someone who's described in b.you just mean it is someone who hasn't.been treated under b just to be clear.right that's what you mean subject to.paragraphs b and c.and 3a 2a sorry.great so the government's view is that.section 1225 b1 does not apply to mr.cruz because he was not.placed in expedited removal proceedings.and so he's not.subject he's not covered by subject to.paragraphy.so subject to subject to is not a.statutory reference it's a.reference to uh prosecutorial discretion.judgment in the case of section 1225.b2b2.yes your honor and again the government.will refer back to.matter of erm and lrm that's the.proposition sorry i interrupted you.can i can i can you just tell me again.the um.the non-reviewability provision that.you're talking about.yes your honor section 1252 82p2.okay can i ask you have a ver i think.you have a very brief reference.to another provision we're talking about.refinement now right.yes sir the district court's disposition.of the non-development claim.right so um.and that's 12 31 right yeah.that would be the statute that would be.relevant is that right.the government's view is that section.1231 does not apply.in this case because section 1231.concerns.removal which is a different context.than contiguous territory return.so my question is um is that in in your.brief you briefly.mention 1231 h.uh hold on yeah h.which says nothing in this section shall.be construed to create any substance or.procedural.right or benefit that's legally.enforceable by any party against the.united states.there's just a briefest mention of i.think it's in your brief somebody's.brief.is this why is this not the section that.you would be.relying on for non-reviewability.no cause of action put it that way sorry.because the government certainly has no.objection to this court because i know.but there must be some reason.i'm missing i don't want to make a.mistake here what's what's the reason.that this.distraction isn't relevant.so this largely just stems from the.court's order of operations in.june in jupiter this court concluded.that section 1252.a2b2 bar judicial review and then it had.no need to consider whether for example.the agency discretion by law exception.to the apa applied.so in the government's treatment of the.issues in the order of operations and.artery.we similarly viewed section 1252 a2b2 as.a threshold jurisdictional.issue and then the lack of a cause of.action as an alternative.argument all right if you're.wrong about the discretionary question.and the.therefore the jurisdictional question.would this apply or not apply.would age support another part it isn't.there.the petitioner's argument is under this.section right that they they.they argue 12 31 should apply.yes brother and then we have a statutory.provision.that's that very section that says.nothing in this.section shall be construed to create any.right.yes i'm not trying to make your case for.you i i have some feeling that i'm.missing some reason that's not usual.that the government buries its best.argument.in one sentence and then doesn't make it.so i i just feel like.i'm missing something here so again your.honor we have no objection to this court.concluding that there is no cause of.action.here because the treaty obligations are.not self-executing there is no domestic.statute that is applicable.again the reason the government ordered.the issues the way it did in its brief.is because.we viewed the injunction that mr cruz.shot as clearly.triggering section 1252 a2 b2 because he.asks this court to set aside the.discretionary decision.to return to mexico and moreover that is.also the ground the district.below hold on and for those reasons.we've led with our section 1252.a2 b2 argument but we would certainly.have no objection to this court.concluding that there is.no positive action or mechanism to.challenge the implementation.did you argue that did you argue that in.your brief.you mentioned it that's not the same.thing as did you make an argument that.there's no cause of action here.the government did assert that because.the treaty obligations.are not self-executing that there is.essentially no mechanism for mr cruz.to challenge the non-development.obligations that issue here.i just you just have this one line here.there's this is one line and.there's no argument there's no citations.there's nothing here.to raise an argument.so again your honor that line concerns.section 1231.h but the government believes the.preceding paragraph.also builds on that argument and in any.of it would also submit that the section.1252.a2 b2 bar applies here as well.and finally just to conclude in the.government's view the supreme court's.recent decision in dhs versus the.regents of the university of california.decision that decision forecloses mr.cruz's equal protection claim.because like the litigants there mr cruz.relies on a number of statements made by.the president remote in time.and unrelated to mpp and for that reason.he has not made out a plausible equal.protection claim.and finally i'm sorry i apologize i just.wanted to hop back to the.non-we you save.the guidance and principles issued by.the secretary of dhs.were specific and explicit that.um protections under convention against.torture and.non-refilement protections would.continue to apply.is that right.yesterday on the problem getting mvp dhs.made clear that it would abide by all.relevant non-development.obligations does that create any rights.then if you don't.so you're on the only situation in which.the governor believes it would create.such a right.if for example the claim was that the.agency.failed to abide by the prescribed.non-refund procedures.but importantly that is not the claim.here mr cruz.was afforded a non-profit.well no but long after he'd been.returned and then brought back in.and even even at his even when he was.finally given one.um it's not clear that he was told he.could have counsel.there is no immigration judge review.so let me address both aspects you just.mentioned as to why he was returned.initially without receiving a.non-refinement interview.that is because the agency made the.choice that in the context presented by.contiguous territory return the onus is.on the alien to articulate a fear of.return.and importantly section 1225 b1a1.also notes that similarly for the.credible fear process to be triggered.an alien has to indicate an intention to.apply for asylum.or a fury i know but the agent the the.secretary.was explicit that existing.non-refoulement.procedures and protections would be.retained did not say that we would.change.those in a way it's not ordinarily.required that they is it ordinarily.required that they raise the issue first.or do they or is that normally.normally outside this context is that.something that's asked by.um immigration officers or.embracing judges even.so i'm not sure i i fully understand.your questions.about that shifting the burden sorry so.shifting the burden.to the immigrant to spontaneously raise.concerns about covered by non-refillment.concerns about torture.or mistreatment in the place to which.they're being returned is that the.normal practices.under 12 29 a procedures.so the only reason i'm hesitating to to.answer your question is.credible theory interviews when they.occur in the course of exodus removal.proceedings under section 1225 b1.after the alien expresses an intention.to apply for asylum or fear of.persecution.then the immigration officer asks the.alien to treat questions.but importantly the context here is.fundamentally different.okay so under 12 let me be clear under.1231.right restriction on removal to a.country where an alien's life of.freedom would be threatened if you're.applying that process.put aside mpp if you're applying that.process ordinarily my understanding is.that.the burden is not on the individual.alien to first raise.that question without notice.without counsel we just have to.spontaneously.raise that is that true.in the context of of of full removal.proceedings.i believe that's correct your honor okay.so then but again.i'm sorry go ahead yeah so just to.reinforce the point i i just mentioned.the context here is fundamentally.different.and importantly an alien can express if.you're returning to mexico at any point.during the time that is removal.application or removal proceedings.are pending in the united states so any.alien can have multiple non-profound.interviews and indeed.some aliens have had multiple.non-fulfillment interviews no but i'm.just going back to.when if the mpp protocol has said we're.going to continue to adhere.to non-refund obligations.and and practices than changing this.whole process the burden of raising the.issue.the level of proof by which they have to.raise it the lack of notice.that's all different isn't it that is a.change.so it is a change your honor but the.government again believes that the.context here is different that it's not.a departure from previously.existing policies that were applicable.in an analogous.context so the considerations applicable.to contiguous territory return of an.alien to a country that he or she.transited through those considerations.are fundamentally different.than the considerations of returning an.alien to the home country where they may.have faced persecution.and the government's views that agency.was as well why did the guidance say.we'll be treating them the same.so to the mpp guiding principles simply.discuss.non-refund generally and the principles.of non-fulfillment.and in the uscis memo applicable to.non-refinement interviews.uscis is clear that the withholding of.removal regulations.are inapplicable because again these are.not removal proceedings.but then how can it be so that your.position that.the refugee act and the convention.allow return uh.if someone actually were they didn't.know to raise it they just didn't know.they could raise it but they actually.were.in fear of being harmed in mexico.your view is that you're not obliged to.apply that.for a continuous territory return.so so so that's that's that bad.view the government's view is not that.it does not have to abide by.non-fulfillment obligations but rather.that.nothing in section 1231 or either of the.treaties you just mentioned prescribes.any.minimum procedures that the executive.branch has to adopt.will comply with its non-refinement.obligations and accordingly.the executive branch was entitled to.rely on the different contexts presented.here to fashion.different non-refundable procedures and.i would also refer this court to section.1231 b3a.which notes that it is for the attorney.general to determine if an alien's life.would be threatened based on a protected.ground so no part of section 1231.prescribes a minimum set of procedures.that the executive branch.has to follow and so the government's.view is that the procedures here.are fully adequate to satisfy all.relevant obligations.it would be adequate even in a full 1231.removal proceeding.but but again your honor the.government's views that context is.fundamentally different.you just told me all you're obligated to.do under the refugee act.um and the convention all you're.obligated to do is what you've done here.is that true or not yes that's true.you could do this exact same process and.withholding rules we've just been extra.generous so far.so the government's views against taking.into account the considerations unique.to.removal of an alien to a country where.they may be facing persecution or.torture.and whether they have no other.opportunity to raise a claim of fear the.procedures fashions are different.and i would also point this court to the.supreme court's decision at duracetium.where in pertinent part the supreme.court discussed the abuses of the.credible fear process the fact that.there's been almost a 2 000.increase in credible fear claims which.have in turn.exacerbated the existing burdens on the.immigration system.and so given those burden concerns the.government's view the agency was.entitled to rely on the specific context.presented here to fashion.non-refund procedures is there some.place where the dhs.explains why all.this rationale that they think they must.think there's a reduced risk.um torture or mistreatment in a country.to which you're returned rather than.removed where where is this explanation.for change.in policy to describe it as a different.it's a different country but it's clear.that you have a comment applies to third.countries as well so.wherever they explain why the risk is.lower.so in the october 20th 2019.assessment of the micro production.protocols vhs explained that based.on its experience right sorry.i didn't hear which which which which.memo would you.say yeah it's not a memo in the appendix.it's a publicly available assessment of.mpp.that the government relied on below and.again i can also.submit this document if the court.believes it would be helpful.but in that document dhs explained its.view that.based on the agency's experience in in.administering credible fear interviews.its view was that if it altered.non-refundable procedures in a manner.suggested.by litigants like mr cruz the number of.fear claims would become.overwhelming and would lead to untenable.burdens on the limited number.of asylum officers there are and again.based on the supreme court's decision at.the receivium.that concern is not purely conjectural.well i don't understand this it is.burden.nothing in what you just said said that.they were improper.or not credible credible fear claims is.the agency able to.to establish a standard that rejects.these claims simply because.accepting them would be too burdensome.is that consistent with this.with the treaty and the statute well.no no no your honor so the government.the government's view is that in the.credible fear context for example in.thoracic and the supreme court noted.that.of the large volume of credible fear.claims that are made many turn out to be.meritless and more importantly many turn.out to be abandoned.and lit against an alien simply abscond.into the interior of the country.and the government's view is just given.that concern.and here there's no risk of abstaining.into.the middle of the country in that sense.that we're just talking about having the.interview here and deciding whether.return versus detention.um is warranted so i don't know.maybe maybe there are a lot that um end.up not to have.merits aren't there um.are there a lot that also do have merits.so it would not be possible for me to.quantify the number of claims that would.have merit and the number of ones that.would not admit the government's view is.something that the agency.acted reasonably and relying on that.concern and its experiences.administering credible fear interviews.to fashion the procedures that it did.and again mr cruz did receive.an honorary family interview after he.came back to the united states for his.july 30th hearing.and during that hearing he was afforded.an interpreter the interview occurred.in a non-adversarial setting and the.results of the interview were subject to.supervisory asylum officer.you i'm sorry i.just i don't mean to catch you i would.just say that the document you.referenced.um that you said isn't before us from.dhs i would like to if it's okay with my.colleagues i would like to have that.submitted.understood your honor i will assume that.sorry judge walker the worst.uh version of what you've just described.i'm gonna describe and then i want you.to tell me.if you would why that's not actually.what happened.there are tons of.border crossings and asylum claims and.as you said they're up.two thousand percent or at least they.were and that's an administrative burden.one way to avoid that administrative.burden.for asylum seekers is.to just not ask them.if they're seeking asylum.the guidance from the secretary says.a third country national should not be.involuntarily returned to mexico.if the alien would more likely than not.be persecuted.on certain reasons or would more likely.than not be tortured.if you ask everybody are you.that you're going to return to mexico.while they're waiting on their asylum.claims.if you ask everybody are you more likely.than not.to be persecuted and are you more likely.than not to be tortured.you're going to get more yeses.than you would if you just don't ask the.question because there will be some.number of people.who just don't know that they're.supposed to tell you.they're afraid that returning to mexico.will lead to either their persecution.and that's a good thing you say from.dhs's perspective because.it's less of a burden on dhs.if we just bury our head in the sand.here.is that the reason is that really the.reason that dhs.has decided not to ask people they're.returning to mexico if they're more.likely than not to be persecuted or.tortured.or is there a different reason.so the missing component of your.question judge walker that i would just.point to.is that returning to the credible fear.process for a second in the recipe and.the supreme court that not only.was there a massive increase in the.number of credible fear claims but many.of them turned out to be.completely miraculous and were abandoned.and so the government would just point.to that.and state that based on that experience.with a number of credible fear claims.that turned out to ultimately.be devoid of any merit dhs fashioned.different procedures in this context and.was entitled to do so.and so dhs made a policy decision.exercising their discretion.that in order to avoid the burden of a.lot of frivolous.uh claims they would adopt a policy.that is guaranteed to.not catch some number of meritorious.claims.so the government resist that.characterization simply because a number.of aliens have.articulated a fear of returning to.mexico like mr cruz.and again section 1225 b1a1 even in the.credible fear context provides.that a credible theory interview doesn't.occur until an alien first.expresses an intention to apply for.asylum or a fear of persecution and so.in the government's view.this situation is not meaningfully.different from bad statutory commands.is more likely than not different than.credibles here.the the more likely than not standard is.what is ultimately used to determine.whether an alien has critical fear.yes john.i'm sorry i wasn't clear an expedited.removal.to get to an asylum hearing do they have.to estab do they have to.up front do they have to show more.likely than not or just to get to the.hearing so they just have to assert a.credible.fear that's an incredible fear more.likely than not.or is it plausible substantial.it's a reasonable probability that is.that's my understanding.that's the burden at the credible fear.stage.so for expedited removal if your.prosecutorial discretion had left him.there he would have to just so.a reasonable probability but because you.process.him under 1229a and subject him to.return to mexico if he has to show more.likely than not.yes is that right.yes your honor and again another.important difference between.this case and credible fear claims i.would point to is the fact that.aliens do not receive more than one.credible fear interview.whereas aliens can and do in fact.receive more than one.non-profound interview because they can.articulate a fear of returning to mexico.at any point.while their removal proceedings are.pending in the united states.and just to very brief all right i think.it's too late to be very brief.um i think we have your arguments and to.the extent.we don't we've had them in the briefs.i'm gonna let mr sheldon have two.minutes.um and thank you very much for your.argument.thank you.mr sheldon we're having trouble hearing.maybe you need to speak.more directly into the microphone can.you hear me now your honor.yeah okay thank you so more likely than.not it's completely different than.credible fear.um critical fear is set out in d1 and.details extremely low standard.more likely than not you have to prove.you know beyond.whatever you know beyond more than 50.that you will be persecuted that's.extremely hard standard for someone to.meet without evidence without a lawyer.without.any type of procedure i mean it's.virtually designed so there's no chance.on earth that they're going to pass.the government claims they don't have.money that is too much of a burden i.mean cbp and ice have a budget of 19.billion dollars.the entire eoir is 350 million.i mean the cost of them doing hearings.is negligible compared to their cost of.you know detaining 60 000 people a year.that could you know.cost the same and sending into college.for a year um.again back to the judgement i mean never.before in history has been a procedure.where you have to.ask you know in the u.s we have to ask.the government.and tell them you're afraid i mean this.is a completely new.standard um and you know we've been.analogous to asking a detained person a.prisoner to ask for water you know.instead of being given water um you know.it's a completely new and a completely.um arbitrary and reasonable standard um.okay so 12 31 i mean just read it.quickly.so the attorney general may not remove.an alien to a country if the attorney.general decides.that his life or freedom would be fun i.mean it just may not and it doesn't say.any specific countries.it's any country um there's several.indeference.you know i ask you what do we do with.this um.so no cause of action kind of language.oh you're on all right i mean okay.there's a presumption in favor of.judicial review.this is not a question of review it's a.it's it's not a jurisdiction it's a.question of the cause of action what do.i do with that language.again the government didn't bring it up.previously it's kind of that's not the.government does have a sentence and.i didn't think of it myself i'm sure i.would never have thought of it myself.because the statute is softly.complicated but it is included in the in.the government's argument.what what what do you know anything.about it if you don't i understand it's.because you.yeah i i don't know but it just i mean.clearly.the constitution the statutes all that.takes great precedence over one little.line.where they say you know that you don't.have an individual right i mean i think.what they're referring to would be a.litigation.or a lawsuit where you're asking for.damages i mean i don't think they're.talking about.the constitutional rights or the.statutory rights of 65.000 people including 16 000 children.that have been sent to another country i.don't think that's what congress meant.at all.well did you you didn't sue under 1231 h.you sued under the apa correct that's.exactly.honor we're not even we're not even.talking about immigration this case.really has nothing to do with the.immigration statutes.with removal i mean our client has not.been removed he's not even.we're not even discussing that we're.talking about whether the government can.grab people with armed police and throw.them into.into mexico while they're awaiting the.hearing this is the announcement there's.any question in your experience as an.immigration lawyer that.the cat protections that are in 1231 may.be raised.on at least review of a final order of.removal.okay they they precise it's withholding.of removal claims the cat would be.separate but but um but but no i mean.absolutely hundred percent this case.could never be reviewed on a on a.on a you know a pressure of removal and.in the court of appeals for the removal.case has nothing to do with the removal.case i mean if i even brought it up it.would be utterly irrelevant.i mean he's the only question they're.going to look at is his his removal did.he get a fair procedure in his removal.case this has nothing to do with that i.mean.except for the fact of course it only.you know maybe we could argue that only.only 22 cases have apparently been.approved out of 11 000 cases.you know that have been decided in the.mvp context because people don't have.lawyers they don't.you know they don't have any type of um.you know they don't even know they have.hearings.um okay sheldon mr jones who.who grabbed him he turned himself in.i mean that's what i thought that's what.i thought you said a moment ago he was.grabbed by armed people.well i mean grabbed and thrown out of.the country i mean he was he was taking.he was woken up one morning he thought.he was going to be you know.he thought he was going to be placed in.proceeding the states as everybody else.has for the last.you know forever and then he was um he.was just grabbed and.for hank a son and thrown into mexico.without you know literally without any.you know.he says in his name he says he says this.wasn't a question it was an order.sent out of the country what do we do.with the case um omar.being the queue the government briefed.it pretty extensively and i don't think.you mentioned it and you reply.it says that it's a dc circuit case that.says when it comes to the question of.whether or not.a foreign country is going to torture.somebody we're sending there.um judges don't decide that that's a.that's a decision.completely in the executive right.that's completely again a lot of.government smoke here.trying to distract the court i'm not.asking about the government's argument.i'm asking about.the dc circuit finding president omar.being the queue.those cases are about extradition they.have nothing to do with this case i mean.when you have an extradition treaty with.another country.you know that that supersedes anything.else and if the united states signs a.treaty with england.and then we're returning a criminal okay.then they can't start bringing up what's.going to happen in england.that's not what we're talking about here.iran there's no treaty there's no i mean.this is asylum it's completely different.you're you're seeking perspective relief.um.and when it comes to the refoulement.question um.let me let me rephrase assume that i.think.at this point mr cruz has received.all of the refoulement process he's.entitled to.and that his refoulement claim has been.adjudicated.by homeland security in an appropriate.manner i know you don't think that but.assume i think that.you're you're seeking perspective relief.even if i were to agree with you that he.should have gotten the interview earlier.what what do i do with that what can the.court do with that.okay i mean there's four different ways.or something we can win in this case i.mean the statutory argument on the mpp.the statutory argument.on the alien you know whether he's in.the united states i mean.that's just one of our arguments is the.the international withholding of removal.your honor.um okay i'm good i'm good i mean i think.so yeah obviously.if you could just wrap it up in a.sentence or two that would be helpful.i'd like to just talk quickly about this.chevron difference i mean i just want to.mention there is an agency regulation.and if the government you know the.court's going to give chevron difference.to anything it should be this right.this this regulation that's existed you.know since the statute.was put in and it you know it interprets.the contiguous territory provision it.limits it to arrivals at the port of.entry so.you know that that should actually take.precedence over a matter of.and just cite that regulation for us.you know deregulation interpreting the.yeah it's um hcfr.12 35.3 d.thank you and it you know it clearly.says that.that it's only supposed to be applied to.aliens arriving at a land border port of.entry in other words even if the.government were writing the regulations.didn't think it applied to people the.united states.um irreparable harm i mean oh i do want.to mention one thing there's a you know.gordon beholder from this court and also.milky district appointment.say if your perspective violation the.constitutional right constitutes a.irreparable injury we think this is a.constitutional violation so that would.take care of the the injury you know.the the irreparable harm but you know in.addition mr cruz was sent to one of the.most violent places on earth an area.controlled by the juarez drug cartel not.the mexican police.he's living in daily chair he's afraid.to be sent back to guatemala by the.mexican government.he's afraid that he could be killed by.the same people that are after him.from guatemala they could find him in.mexico i mean.you know katrina there's no irreparable.harm i mean i would analogy i just.whatever to the.1939 the vote saint louis arrived off.the florida coast and you know.they sent it back i mean you know he's.also subject to uh obviously badly.malfunctioning asylum hearing system.where 22 cases have been approved out of.11.200 that were ordered removed i mean.clearly he has irreparable harm.um the jurisdiction i mean you know this.case well.it's because it's not about religion but.immigration has nothing to do with.discretion.um because you know under that vitus and.other kings the court said the authority.is not discretion you know.the agency's authority is not.discretionary.um just just to wrap up your honor i.just wanted.a few blocks from the kardashians and.monument to the japanese americans.during world war ii held.the japanese americans who were detained.in world war ii helped to be legal by.the supreme court in korean monster.their quotes from president reagan.senators other apologizing sayings this.never happened again.yet today the government is violating.iran the constitution to some women and.children seeking asylum in our country.to extreme danger.um it may not be popular but this court.should order the government to follow.the law.um i have a few other i mean there's.more questions i have a few other things.i wanted to say but i realize i'm out of.time.all right thank you mr sheldon thank you.very much um thanks to both council.we'll take the matter under submission.thank you very much.this honorable court is now adjourned.until wednesday for 16.at 9 30 a.m.goodbye.you.

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How to create an e-signature for the United States Court Of Appeals District Of Columbia Circuit 333 Constitution Avenue Nw Washington Dc 20001 2866 Phone 202 216 straight from your smartphone?

Smartphones and tablets are so evolved lately, that you can deploying them for anything what you can do on your laptop and PC. That's why more and more people are operate business from these mobile devices, saving even more time.

It's also a huge benefit work at any where. As long as your internet connection is stable, you can conduct your business in whatever place.

When you need to sign a United States Court Of Appeals District Of Columbia Circuit 333 Constitution Avenue Nw Washington Dc 20001 2866 Phone 202 216 , and you're working from home, the CocoSign web application is the answer. Signing and sending a legally binding document will take seconds. Here is what you need to do to sign a document on your cell phone:

  1. Use your browser to go to CocoSign and log in. If you don't already have an account, you need to register.
  2. Hit on the document that needs to be signed on the device and access to it.
  3. Open the document and go to the page to put down your signature.
  4. Tick on 'My Signature'.
  5. Personalize your unique signature, then add on it on the page.
  6. Once you have done, read the written part again, tick 'Done'.

All these points won't take long time duration, and once the document is signed, you decide the next step. You can either download it to the device or share it in an email or using a link.

A significant edge of CocoSign is that it's fitting with any mobile device, regardless of the operating system. It's the ideal alternative, and it flexibles workflow, it's legal.

How to create an e-signature for the United States Court Of Appeals District Of Columbia Circuit 333 Constitution Avenue Nw Washington Dc 20001 2866 Phone 202 216 on iOS?

Creating an electronic signature on a device with iOS system is not at all tough. You can sign the United States Court Of Appeals District Of Columbia Circuit 333 Constitution Avenue Nw Washington Dc 20001 2866 Phone 202 216 on your iPhone or iPad, using a PDF file. You will Hit on the application CocoSign has created especially for iOS users. Just go to use CocoSign.

These are the elements you need to sign the form right from your iPhone or iPad:

  1. Include the CocoSign app on your iOS device.
  2. Try your email to produce an account, or sign in with Google or Facebook.
  3. Hit on the PDF that needs to be signed on the phone or pull it from the cloud.
  4. Hit on the sector where you want to write down the signature; tick 'Insert initials' and 'Insert signature'.
  5. Insert your initials or signature, place them correctly, and save changes to the document.

After completing, the document is ready for the next step. You can download it to your iPhone and forward it. As long as you have a qualified internet connection, you can sign and send documents quickly.

How to create an electronic signature for the United States Court Of Appeals District Of Columbia Circuit 333 Constitution Avenue Nw Washington Dc 20001 2866 Phone 202 216 on Android?

iOS has countless of users, there's no doubt of that, but most cell users have an Android operating system. To satisfy the needs, CocoSign has developed the system, especially for Android users.

You can obtain the app on Play Market, install it, and you should start signing documents. These are the points to sign a form on your Android device:

  1. If you already have a CocoSign account, sign in. If you don't have one yet, you can sign in using Google or Facebook.
  2. Tick on '+' to access to the document you want to sign, from cloud storage or using your camera.
  3. Hit on the sector where the signature must be placed and then use the popup window to insert your signature.
  4. Draw it on the page, confirm, and save the changes.
  5. The final step is to foward the signed document.

To send the signed form, just attach it to an email, and it will reach your others quickly. CocoSign is the best way to sign countless docs every day, all at a low cost. It's time to forget all about signing documents physically and keep it all electronic.

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