[00:00:00] Speaker 06: Whenever you're ready. [00:00:25] Speaker 04: Thank you, Your Honor. [00:00:26] Speaker 04: Good morning, and may it please the Court. [00:00:28] Speaker 04: My name is Justin Weddle, and I represent Laura Akihoshi, the petitioner in this matter. [00:00:34] Speaker 04: And both on this appeal and throughout the administrative proceedings, I've represented Miss Akihoshi, who is in the courtroom today in the front row on my left. [00:00:48] Speaker 04: I'm going to start with just disability issues, just because I think that they logically come first, although I think they're clearly satisfied in this case. [00:00:56] Speaker 06: Can I interrupt you? [00:00:57] Speaker 06: Just right at the top, I have an overarching question, because we never know what's happened since the briefing was completed. [00:01:03] Speaker 06: Forgive me for interrupting you. [00:01:05] Speaker 06: As you dig through this, there's a brief mention that in another proceeding seeking equal access to justice act fees that the agency has taken the position that an inconsistent position about who's the prevailing party. [00:01:19] Speaker 06: Do we know what the status is of that proceeding? [00:01:22] Speaker 04: That proceeding has been stayed by order of the acting Comptroller. [00:01:27] Speaker 04: And so nothing has happened since the briefs have been filed in that proceeding. [00:01:32] Speaker 02: Am I right it was stayed because of the pendency of this appeal? [00:01:35] Speaker 04: Yes, that's right, Your Honor, yes. [00:01:37] Speaker 04: Go right ahead. [00:01:39] Speaker 04: So on justiciability issues, [00:01:42] Speaker 04: I think the judiciability questions are answered by what is the zone of interest to be protected and whether Miss Okohoshi has been injured. [00:01:53] Speaker 04: It's beyond clear that Miss Okohoshi's interests are within the zone of interest of the due process arguments that we've made. [00:02:01] Speaker 04: The due process arguments relate to her right to due process. [00:02:05] Speaker 02: So how broad is your position? [00:02:08] Speaker 02: Is it that if [00:02:11] Speaker 02: The agency didn't go far enough to say what you want. [00:02:15] Speaker 02: You can appeal when you win. [00:02:17] Speaker 02: You're clearly saying that. [00:02:20] Speaker 02: But is that also work with your zone of interest in civil cases and criminal cases? [00:02:27] Speaker 02: Somebody gets a criminal case dismissed, they argue. [00:02:31] Speaker 02: There's no probable cause, there's no evidence I'm guilty, the prosecution is a sham, and the district judge dismisses the case on statute of limitations grounds. [00:02:41] Speaker 02: Does the winning defendant have an appeal to us to say, the district court should have said this whole case was frivolous and there's no basis for it, and I have all this bad stuff that comes from the indictment, and so you should grant me relief and order the district judge to say different things about why I win? [00:03:00] Speaker 04: No, Your Honor. [00:03:02] Speaker 04: I think our argument is much narrower than that. [00:03:04] Speaker 04: Explain to me why. [00:03:06] Speaker 04: Because, well, we obviously have a number of different arguments that justify vacating the decision below and all of the proceedings. [00:03:18] Speaker 02: But let me just pick one. [00:03:19] Speaker 02: She won. [00:03:20] Speaker 02: So, but go ahead. [00:03:22] Speaker 04: Well, Your Honor, the one reason why what we're arguing here is narrower is because, for example, with the due process arguments that we've made and the Appointments Clause arguments that we've made relating to the invalidity of the Notice of Charges itself, and therefore the invalidity ab initio of the entire proceedings, the OCC never had the authority to say anything about Laura Okohoshi's conduct. [00:03:51] Speaker 06: And if they had agreed, if those arguments had been successful, there would have been a dismissal? [00:04:00] Speaker 04: No, Your Honor. [00:04:01] Speaker 04: There would have been a vacatur ab initio of, I mean, if the acting comptroller had said... Right about that. [00:04:10] Speaker 06: But that is the daylight that you're [00:04:12] Speaker 06: clinging to right I think there's a dismissal and she got dismissal but you wanted something more and that was to I think this is a question really to have the proceeding declared invalid from the get-go right [00:04:26] Speaker 04: Well, she didn't get a dismissal. [00:04:29] Speaker 04: She got excoriated in a final order by the acting comptroller that ended with the word dismissal. [00:04:36] Speaker 06: That's a dismissal. [00:04:37] Speaker 06: That's a dismissal. [00:04:37] Speaker 06: I fully appreciate that she is claiming a reputational harm. [00:04:40] Speaker 06: I'm not missing that point. [00:04:42] Speaker 06: But I do want you to answer the question. [00:04:44] Speaker 06: Is that the distinction, the difference? [00:04:47] Speaker 06: She got a dismissal. [00:04:49] Speaker 06: Right. [00:04:49] Speaker 04: And there's a distinction, which Your Honor is talking about, I think, and which I think is a wide distinction, but be that as it may, there's a clear distinction between a dismissal and a vacatur. [00:05:05] Speaker 04: and a vacatur ab initio. [00:05:08] Speaker 04: And there's also a clear distinction between a dismissal and a finding in her favor on the merits, which is another one of the arguments that we've made here, which is that she was entitled to a finding on the merits exonerating her. [00:05:23] Speaker 04: There's a world of difference between a reluctant dismissal that criticizes her and makes legal findings against her and sends messages to the banking community [00:05:34] Speaker 04: in the strongest possible terms. [00:05:36] Speaker 02: Why isn't that true in the criminal case hypothetical I gave you where somebody is claiming they're totally innocent and they won on some technical basis and they should have won through an excoriation of the prosecution and a determination they did nothing wrong? [00:05:51] Speaker 04: Well, because in that hypothetical, Your Honor, there is no finding issued by the trier, you know, the judge in that case. [00:06:01] Speaker 04: There's no finding by the judge that says, I find you did terrible things, but it's time barred. [00:06:09] Speaker 04: And the example that I would give, because I think one of our arguments is about authority, Your Honor, and the fact that the OCC really didn't have authority to take shots at Ms. [00:06:20] Speaker 04: Akihoshi the way that they did, is in the case that the OCC itself cites, which is Environmental Protection Information Center, Ninth Circuit Case 2001. [00:06:31] Speaker 02: But counsel here... [00:06:32] Speaker 02: If I'm looking at page 11 of the final decision, I'm sorry, ER 12, one plausible interpretation of the record is that respondents and others adopted a strategy of deflection and delay, et cetera. [00:06:46] Speaker 02: It didn't say we find that respondent did it. [00:06:50] Speaker 02: We find that that's one plausible interpretation of the record. [00:06:53] Speaker 02: So it's not finding that she did all of these terrible things. [00:06:57] Speaker 02: It's saying that's one plausible interpretation of the record, right? [00:07:01] Speaker 04: Well, it said many other things as well, Your Honor. [00:07:04] Speaker 04: I'm sorry? [00:07:05] Speaker 04: The decision said a number of other things as well, and said it does not at all condone her behavior. [00:07:10] Speaker 04: The behavior is very troubling. [00:07:12] Speaker 04: It's a very reluctant dismissal. [00:07:14] Speaker 04: All of those things amount to a censure, Your Honor. [00:07:19] Speaker 04: It's basically a formal reprimand in the guise of a dismissal. [00:07:23] Speaker 06: Oh, if we were... That's peculiar. [00:07:24] Speaker 06: Forgive me. [00:07:25] Speaker 04: No, no. [00:07:25] Speaker 06: Right at that point where you say it's reluctant, I appreciate all of those adjectives, meaning I don't mean appreciate in a laudatory sense. [00:07:32] Speaker 06: I get it. [00:07:33] Speaker 06: It's a very atypical ruling, right? [00:07:36] Speaker 06: Did we ever get an explanation why the agency chose to dismiss other than that there had been delay and what? [00:07:44] Speaker 06: I mean, I don't think they ever say witnesses are gone. [00:07:48] Speaker 06: It's very odd. [00:07:51] Speaker 06: I haven't seen one like this. [00:07:52] Speaker 06: Is there something we're missing? [00:07:54] Speaker 06: by way of explanation for why they dismissed? [00:07:56] Speaker 04: I can provide my explanation, Your Honor. [00:07:59] Speaker 04: It's not something that's really in the record. [00:08:01] Speaker 04: But I think my explanation here is that the OCC is trying to block access to an Article 3 decision maker on the very issues that we've raised, namely the constitutionality of their structure for initiating actions. [00:08:17] Speaker 06: You argue that it is in the record. [00:08:19] Speaker 06: That's your argument in your brief. [00:08:20] Speaker 04: But all I'm saying is the OCC has not admitted that one of their purposes in issuing the final order in the way that they did was to accomplish what they've now argued, which is that this court is blocked from reviewing their legal findings, their directions to the [00:08:41] Speaker 04: to the banking community and their criticisms of Misaka Hoshikawa. [00:08:46] Speaker 02: So part of what you're arguing is the reputational harm, right? [00:08:49] Speaker 02: Yes, absolutely. [00:08:50] Speaker 02: So before I quote from it, I just want to make sure the plea agreement in this case is public record, right? [00:08:58] Speaker 02: Yes, Your Honor. [00:09:00] Speaker 02: So the plea agreement excoriates your client. [00:09:03] Speaker 02: It has language in there that your client was guilty of a variety of crimes, right? [00:09:12] Speaker 04: I don't disagree with Your Honor. [00:09:15] Speaker 04: I'm not sure that it says that she was guilty of crimes. [00:09:18] Speaker 02: Well, it says executive, meaning your executive with a letter of the alphabet, meaning your client, made false and misleading statements to the OCC and talks about 1001, et cetera. [00:09:35] Speaker 02: Nothing we do in this case can ameliorate the reputational harm from that, right? [00:09:40] Speaker 04: And we're not asking you to, Your Honor, but I think that the reputational harm is redressable and does provide standing and provides jurisdiction to this court to review these issues. [00:09:54] Speaker 06: So... Sometimes, on that point, sometimes we see, after a criminal prosecution, a tort claim for something like malicious prosecution. [00:10:04] Speaker 06: Arguing reputational harm has has your client explored a tort claim because she's doing this in the context of a petition for review Yes, we have your honor. [00:10:13] Speaker 04: Yeah, absolutely you have I'm sorry considered that yes And and I mean, but you haven't initiated that at this point [00:10:21] Speaker 04: And I think that our analysis, I'm doing this from memory, but I think the analysis was that that might be barred by the Federal Tort Claims, not covered under the Federal Tort Claims Act and things like that. [00:10:32] Speaker 04: But I think that to go back to the criminal context, for example, a criminal conviction is vacated if a defendant dies. [00:10:44] Speaker 04: after conviction but before the appeal is heard. [00:10:49] Speaker 04: You know, under the OCC's argument, that could never happen because the issue would be moot, right? [00:10:55] Speaker 04: There'd be no punishment that could occur. [00:10:56] Speaker 04: The defendant is dead. [00:10:59] Speaker 04: And so, you know, query what the reputation, what the reputational harm would be there. [00:11:04] Speaker 04: But that's not a question of justiciability. [00:11:08] Speaker 04: I think the court has jurisdiction to consider the issues. [00:11:12] Speaker 06: The reason it's coming to us as a question of disability is because your client has to show an injury to show standing. [00:11:19] Speaker 04: Yes, and I think there are a number of injuries here. [00:11:24] Speaker 04: One of them is the injury of having been the victim of an appropriations clause violation by a federal agency. [00:11:34] Speaker 04: The Supreme Court in Lucia said that a person who makes a correct appointments clause challenge [00:11:42] Speaker 04: against executive action is entitled to relief. [00:11:46] Speaker 04: So that's an injury. [00:11:48] Speaker 04: And the Supreme Court in Lucia was citing the exact same language from its prior decision in writer. [00:11:52] Speaker 06: But in that case, there was an ongoing proceeding, right? [00:11:54] Speaker 06: There was an ongoing proceeding. [00:11:56] Speaker 04: In that case, well, in that case, there ended up being an ongoing proceeding. [00:12:00] Speaker 04: But the proceeding itself was closed in Lucia. [00:12:03] Speaker 02: But if you're right, [00:12:04] Speaker 02: Our ruling in your favor on the Appointments Clause does not in any way ameliorate the harm that your client suffered by having to go through an illegal proceeding. [00:12:16] Speaker 02: That still would have happened. [00:12:18] Speaker 02: All we would be saying is, yes, she shouldn't have had to have done it, but it doesn't ameliorate the harm she suffered from having to go through it, right? [00:12:28] Speaker 04: It does ameliorate it, Your Honor. [00:12:30] Speaker 04: It doesn't cure it, for sure. [00:12:32] Speaker 04: But it ameliorates it because it would essentially amount to a declaration from this Court that the OCC itself was violating the Constitution when it incorrectly accused my client of violating the law, and that the OCC thereafter put her through a process [00:12:51] Speaker 04: that had repeated orders issued against her, not just the final order, criticizing her, saying all sorts of things about her. [00:12:58] Speaker 04: And essentially, it would tell the world they didn't have the right to say those things, because they never brought this on with a copper basis. [00:13:06] Speaker 02: So it doesn't undo the proceedings she had to go through. [00:13:09] Speaker 02: It would be a statement from us to the world that she shouldn't have had to. [00:13:16] Speaker 04: Yes, and that's not unlike the case that I mentioned a moment ago, which is Environmental Protection Information Center. [00:13:24] Speaker 04: In that case, the district court had considered a number of issues, the parties settled, and then the district court issued an opinion, having done lots of work considering these issues, issued an opinion opining on these issues, and then had a footnote that said, the parties have settled. [00:13:46] Speaker 04: This court not only took and decided the case, so found justiciability, but vacated the district court's decision because the district court had no business opining on those issues because the matter had been moot with the settlement. [00:14:05] Speaker 04: So we're asking for something analogous here, which is that the acting comptroller has no business opining on what [00:14:13] Speaker 04: section 481 means and opining on the propriety of my client's conduct, neither does the ALJ because they never brought this case in an appropriate manner under the Constitution. [00:14:26] Speaker 04: They also violated [00:14:29] Speaker 04: various due process principles. [00:14:30] Speaker 04: So if you put through a proceeding that's in violation of due process, there's nothing reliable that comes out of that. [00:14:39] Speaker 04: So the opinions and statements of the final order and the underlying proceedings, opinions and statements about my client are invalid because they're based on due process violations. [00:14:51] Speaker 06: So what about the Axon case? [00:14:52] Speaker 06: I think a minute ago we miscommunicated and probably because I think you were talking about Lucia. [00:14:57] Speaker 06: and I referred to the ongoing nature of the proceeding. [00:15:01] Speaker 06: So that was my error. [00:15:03] Speaker 06: But what about what the Supreme Court had to say about the need for the proceeding to be ongoing? [00:15:09] Speaker 04: Well, I think that in Axon, maybe I'm getting my cases mixed up, but I think that the Supreme Court in Axon said that the victim of an appointments clause violation or a structural defect, unconstitutional structural defect in an administrative proceeding doesn't have to wait and live through the proceeding. [00:15:30] Speaker 04: They're suffering the injury [00:15:33] Speaker 06: So you made it as doesn't have to wait that a collateral review would be permissible but not that it was necessary in that case that the appeal was interlocutory? [00:15:44] Speaker 04: Well, I think it's not an interlocutory appeal issue in that case. [00:15:48] Speaker 04: But I fundamentally agree with what your honor just said in the form of a question. [00:15:55] Speaker 06: And so what is your... Maybe I'll just ask it this way. [00:16:00] Speaker 06: I'm not sure why you think or if you think it matters that the proceeding we're talking about has concluded and if so, how Axon factors into your analysis here. [00:16:10] Speaker 04: Well, Axon factors in because Axon and the Supreme Court said that being subjected to a structurally defective system is a legal injury, and it occurs now. [00:16:21] Speaker 02: And I'm sorry to interrupt your answer to the question that Judge Christen is asking, but I'm gonna add to the question. [00:16:30] Speaker 02: Your friend said at page 32 of their brief quoting from Axon 598 US at 191, quote, a proceeding that has already happened [00:16:40] Speaker 02: cannot be undone. [00:16:43] Speaker 02: So why isn't that the point we should take from Axon? [00:16:47] Speaker 04: Well, because Axon was a reaction to lower court decisions that I think nearly universally said that the appellate review provisions of the Securities Act barred [00:17:03] Speaker 04: claimants from going to U.S. [00:17:05] Speaker 04: District Court to challenge the structural defects of an SEC proceeding or similar proceedings. [00:17:13] Speaker 04: And the Supreme Court's decision opened the doors of the District Court. [00:17:18] Speaker 04: So the Supreme Court's decision was not trying to close doors. [00:17:22] Speaker 04: They were trying to open doors, and they were saying, you don't have to wait until the end. [00:17:25] Speaker 04: But I don't think that they were making the [00:17:29] Speaker 04: reverse argument, which is what the OCC is saying, and from the language that Your Honor just quoted, I don't think that the Supreme Court was saying that there is no injury having, there is no redressability or injury having suffered the entire proceeding. [00:17:46] Speaker 04: I think that they were saying that you can't fully remedy it after you've gone through it, but that's not the same as saying there is no amelioration [00:17:56] Speaker 04: to take your honor's word that you posed in the form of a question to me. [00:18:00] Speaker 04: There is a method of ameliorating the harm. [00:18:04] Speaker 04: She doesn't get back the time that she spent in depositions and so on and so forth, but [00:18:09] Speaker 04: I believe, and I think that this is consistent with lots of decisions that courts make, including the one that I just talked about, where they vacated a decision for lack of jurisdiction, but also declaratory judgment actions, all sorts of reputational harm actions, appeals from a formal censure order, right, a censure order is essentially a criticism, and vacatur of unfair proceedings. [00:18:33] Speaker 04: All of those things provide some measure of relief. [00:18:37] Speaker 04: And the measure of relief is a statement from a higher court, namely this court, saying that the proceedings were invalid from the beginning. [00:18:47] Speaker 04: And so all of that stuff, yes, those words are still out there. [00:18:51] Speaker 04: We can't take them back. [00:18:53] Speaker 04: It's a declaration from this court saying that those words were essentially wrongfully issued and that would mean a great deal to my client. [00:19:01] Speaker 04: May I ask a question of you? [00:19:04] Speaker 00: You say she suffered an injury because her equal access to Justice Act fee application has been stayed. [00:19:11] Speaker 04: Why has it been stayed? [00:19:13] Speaker 04: Well, it's been stayed on order of the acting comptroller after briefing and essentially when we were about to get to the position of reviewing. [00:19:24] Speaker 00: If it's been stayed by improper agency action, why don't you petition for hearing on that in this court? [00:19:32] Speaker 04: Well, we could do that. [00:19:36] Speaker 04: We could try to do that. [00:19:39] Speaker 04: I think that petition would go to the district court because I think that would be a straight Administrative Procedure Act petition. [00:19:50] Speaker 04: The harm that we've talked about with respect to the Equal Access to Justice Act proceeding is not the harm of it being stayed. [00:19:58] Speaker 04: The harm is that the OCC, represented by counsel in this case, stands up and says, Ms. [00:20:05] Speaker 04: Sakahoshi won, she prevailed, she should stop complaining. [00:20:09] Speaker 04: And then the OCC, represented by counsel in the EAJA Act says, she lost, she did not prevail, she cannot prevail on an EAJA [00:20:18] Speaker 04: action because not only was the dismissal not prevailing, but also look at what the acting comptroller said about the conduct. [00:20:28] Speaker 04: Obviously, the conduct was reprehensible, although the acting comptroller didn't find it to be proven, but it was reprehensible, so necessarily the OCC's actions [00:20:38] Speaker 04: are with substantial basis and the OCC is not liable under the EAJ Act. [00:20:44] Speaker 04: So the OCC is talking out of both sides of its mouth with respect to these issues and here they say everything that the comptroller said other than the word dismissed is irrelevant and there they say essentially we're barred from any EAJA recovery because [00:21:04] Speaker 03: We lost. [00:21:05] Speaker 00: The agency, right? [00:21:07] Speaker 00: The agency's saying that. [00:21:08] Speaker 00: Yes, and once... Why don't you petition the Ninth Circuit to reverse the agency action? [00:21:14] Speaker 03: That's the way it's done under EAJA. [00:21:17] Speaker 03: Well, we will do that when the agency issues a final order. [00:21:20] Speaker 03: We don't need a final order. [00:21:24] Speaker 00: If the agency is wrong on the law, you can petition the Ninth Circuit to reverse the agency. [00:21:30] Speaker 00: It's a discretionary grant of petition, but it can be done. [00:21:34] Speaker 00: I won't say any more. [00:21:36] Speaker 03: Thank you. [00:21:37] Speaker 04: Thank you, Your Honor. [00:21:39] Speaker 04: I see my time is up. [00:21:40] Speaker 04: I've reserved some time for rebuttal. [00:21:42] Speaker 04: Thank you, Your Honors. [00:21:43] Speaker 06: You actually have a year over time. [00:21:44] Speaker 06: When you come back, we'll put another minute on the clock. [00:21:48] Speaker 04: Thank you. [00:21:48] Speaker 06: Thank you. [00:22:03] Speaker 05: Good morning, Your Honours, and may it please the Court. [00:22:09] Speaker 05: Jason Fernandez on behalf of the OCC. [00:22:12] Speaker 05: The Comptroller's final decision provided Ms. [00:22:14] Speaker 05: Akihoshi with the full measure of relief she requested. [00:22:18] Speaker 06: Well, it went out of its way. [00:22:20] Speaker 06: I can well understand why she's got a complaint here about injury by way of reputational harm. [00:22:26] Speaker 06: I don't know if I've ever seen an order quite like this. [00:22:29] Speaker 05: I understand that concern, Your Honor. [00:22:30] Speaker 06: It corrects that in the other action, the government has taken the position that she prevailed, and in this action, taking the position that she has no injury. [00:22:40] Speaker 05: So the comptroller has not taken that position. [00:22:42] Speaker 05: Enforcement counsel made that argument. [00:22:43] Speaker 05: Exactly. [00:22:44] Speaker 06: The government has taken that position. [00:22:46] Speaker 05: That's true, Your Honor, but that is simply a feature of the set. [00:22:48] Speaker 06: So who's the prevailing party? [00:22:49] Speaker 06: If we decide here that she didn't suffer an injury for purposes of standing, who will the prevailing party be? [00:22:55] Speaker 05: So I want to note that there's a slight difference between the question of prevailing party status under EJA and prevailing party with respect to jurisdiction, but they are similar. [00:23:04] Speaker 05: But I do want to say that because that's a live issue in her EJA case, I'm not authorized to comment on, to make a binding representation on behalf of the comptroller. [00:23:12] Speaker 05: I also want to note that the ALJ did not even- You're not going to answer my question? [00:23:15] Speaker 06: Well, I want to answer the thrust of it, but because it's a live issue in her EJA case- I'm always very concerned when the government takes inconsistent positions. [00:23:24] Speaker 05: So Your Honor, I think that the separation of functions between enforcement counsel and the comptroller, that separation would have no teeth if the comptroller always agreed with the positions taken by enforcement counsel. [00:23:33] Speaker 06: I appreciate there hasn't been a ruling. [00:23:35] Speaker 06: I'm asking about what position was advanced. [00:23:36] Speaker 06: And I think you've told me that, or opposing counsels told me that the action stayed. [00:23:41] Speaker 06: But what I was asking is what position did counsel take? [00:23:44] Speaker 06: And it sounds like the counsel's taken an inconsistent position. [00:23:47] Speaker 05: Enforcement Council has taken that position, yes, but to the extent that that is an argument that is not very successful, then the Comptroller will rule against that argument. [00:23:57] Speaker 01: So, Council, let me ask a related question. [00:24:00] Speaker 02: It looks to me here that Ms. [00:24:04] Speaker 02: Okohoshi prevailed. [00:24:06] Speaker 02: Am I wrong? [00:24:07] Speaker 02: Yes, she prevailed. [00:24:07] Speaker 06: The answer is no, you're not wrong. [00:24:11] Speaker 05: Thank you, Your Honor. [00:24:12] Speaker 06: That's okay. [00:24:13] Speaker 05: And I'd just like to make a few points. [00:24:16] Speaker 05: So because Ms. [00:24:18] Speaker 05: Akihoshi received a fully favorable judgment, she cannot appeal for three distinct insurmountable jurisdictional reasons. [00:24:24] Speaker 05: First, the long-standing rule of appellate practice. [00:24:26] Speaker 05: Second, Article 3 of the Constitution. [00:24:28] Speaker 05: And third, the statutes that provide for this Court's jurisdiction. [00:24:32] Speaker 05: And I'd like to start with the longstanding rule of appellate practice. [00:24:35] Speaker 05: This court articulated the rule in Good Samaritan, and it controls the case here. [00:24:39] Speaker 05: Parties may not appeal from favorable judgments to seek review of issues that are not essential to the judgment and do not bind them in future litigation. [00:24:47] Speaker 05: And that's exactly what happened here. [00:24:48] Speaker 05: In her briefing before the comptroller, she requested dismissal of the action, summary disposition in her favor, or at a minimum remand for a hearing. [00:24:56] Speaker 06: That's why she's the prevailing party. [00:24:58] Speaker 06: She won. [00:24:59] Speaker 05: Thank you, Your Honor. [00:25:00] Speaker 05: Again, that is a position that Enforcement Council has taken in the proceeding below. [00:25:04] Speaker 05: And to Judge Bea's point, if the comptroller were to accept that position and rule against her under EJA application, then the proper forum for relief with respect to that argument and that injury is by petitioning for review of any resulting EJA order. [00:25:17] Speaker 06: It's extraordinary that after all these years, the agency sort of folds up its tent and goes home. [00:25:23] Speaker 06: There isn't a reason given here. [00:25:25] Speaker 06: But what could happen, it seems to me, going back to Judge Bennett's position, is this does happen to criminal defendants who ultimately prevail but feel pretty beaten up. [00:25:34] Speaker 06: And reputationally, they are pretty beaten up. [00:25:37] Speaker 06: But this could result in a position where she would be professionally be in a position to say, they dismiss the action and they paid my fees. [00:25:46] Speaker 05: That's fair, and I think that's exactly why Congress created the Equal Access to Justice Act, so that litigants who prevail against the United States, if they show that the agency was not substantially justified in bringing the action, they are not only entitled to fees, a monetary award, but they're also entitled to a statement declaring that the agency was not substantially justified in bringing the action. [00:26:06] Speaker 06: So your position there is clearly going to be that the agency was substantially justified. [00:26:11] Speaker 06: And I appreciate that. [00:26:12] Speaker 06: We see that sometimes, even though they're wrong. [00:26:16] Speaker 06: This is a hypothetical. [00:26:17] Speaker 06: Sometimes the government is wrong, but substantially justified in bringing the action. [00:26:21] Speaker 06: That might be the case here. [00:26:22] Speaker 06: You might be able to show that. [00:26:24] Speaker 06: It's not what you argued up until now. [00:26:27] Speaker 06: But it still strikes me as peculiar that we don't have any reason given for this dismissal. [00:26:35] Speaker 05: So the comptroller did give a reason. [00:26:38] Speaker 05: And the reason is the passage of time, because the disputed factual issues predominantly relate to petitioners' state of mind. [00:26:46] Speaker 05: And because at this point, 11 years have passed since the underlying conduct, there are some cases that suggest that when that much time has elapsed and the remaining questions have to do with what people remembered at the time, [00:26:57] Speaker 05: then that does create some issues. [00:26:59] Speaker 02: But the comptroller was concerned about what was really in his Akahoshi's mind when she sent the emails at issue. [00:27:12] Speaker 02: Was she confused? [00:27:15] Speaker 02: Were they vague? [00:27:16] Speaker 01: Was she lying? [00:27:16] Speaker 01: 12 years is a long time. [00:27:18] Speaker 05: Right. [00:27:19] Speaker 01: Exactly, Your Honor. [00:27:20] Speaker 01: That is exactly what the comptroller is concerned about. [00:27:23] Speaker 00: I'd like to direct your attention to the EAJA issue. [00:27:28] Speaker 00: As I understand it, the OCC has made a determination that there should be no fees paid under the EAJA because there was substantial justification, but has stayed that ruling. [00:27:43] Speaker 00: Is that correct? [00:27:45] Speaker 05: That's not exactly correct, Your Honor. [00:27:47] Speaker 05: So the EJA application follows the same administrative procedures as our normal enforcement actions. [00:27:52] Speaker 05: So it is heard by the ALJ first and then the Comptroller is the final agency decision maker. [00:27:57] Speaker 05: The ALJ has entered a preliminary order denying the EJA application on the basis of the substantial justification question without reaching the prevailing party question. [00:28:06] Speaker 00: It's holding up a determination of the agency which is [00:28:09] Speaker 00: not to the alcohol she's liking, she can petition for appeal here in this court. [00:28:17] Speaker 05: So the comptroller stayed that, and it is currently before the comptroller with review. [00:28:21] Speaker 05: The comptroller has not made a final determination with respect to Egypt, because again, the comptroller is the final agency decision maker. [00:28:29] Speaker 00: Why doesn't the comptroller make up his mind or her mind? [00:28:31] Speaker 05: Because the Egypt application is not timely until the case results in a final judgment. [00:28:36] Speaker 00: The Egypt application is not timely. [00:28:38] Speaker 05: Because under the Equal Access to Justice Act, it has to result in a final judgment, including any pending appeals, and because petitioner has... It's holding up a final judgment on this issue other than the OCC making up its mind. [00:28:51] Speaker 05: Your Honor, petitioner is holding up the final judgment by bringing this appeal, because that makes the EJA application not timely, because it has not resulted in a final judgment. [00:29:00] Speaker 00: The agency can't make up its mind about the substantial justification until this appeal is finished? [00:29:06] Speaker 05: That is true, Your Honor. [00:29:07] Speaker 05: Under the Equal Access to Justice Act, the agency, or the petitioner really, the applicant must wait until there's a final judgment, including the outcome of any resulting appeal, which includes this appeal right here in the underlying action. [00:29:20] Speaker 00: No, no, no. [00:29:21] Speaker 00: The agency makes up its mind independently of any appeal regarding reputational damages, etc., as to whether the appellant here is a prevailing party for purposes of EAJA. [00:29:39] Speaker 00: What I don't understand is why that hasn't been determined and her EAJA fees paid. [00:29:47] Speaker 05: Your Honor, I think I would just go back to the statute. [00:29:49] Speaker 05: EGIS says that an application should be brought within 30 days after the case is over, essentially. [00:29:56] Speaker 05: But the case is not over because they have appealed to this court. [00:29:59] Speaker 05: And so it has to reach a resolution in this court first. [00:30:01] Speaker 00: Also, her appeal makes the case still alive, and therefore it's not final. [00:30:05] Speaker 05: Exactly. [00:30:06] Speaker 05: Exactly, Your Honor. [00:30:07] Speaker 05: And I'd like to, Judge Christin, I'd like to highlight an exchange that you had with my friend on the other side. [00:30:13] Speaker 05: And the argument is that there's a difference between dismissal or the comptroller's dismissal and a declaration that an action is void ab initio. [00:30:23] Speaker 05: But I think your questioning pointed out that there's actually no substantive difference from the perspective of Article 3. [00:30:29] Speaker 05: A declaration that an action is void ab initio is essentially tacking on the declaratory judgment to a dismissal. [00:30:35] Speaker 05: So it's a dismissal plus a reason. [00:30:37] Speaker 05: And maybe the best way to view this is through the lens of mootness. [00:30:40] Speaker 05: Because mootness and standing are asking an identical question under Article 3. [00:30:45] Speaker 05: Is there a live case or controversy? [00:30:46] Speaker 05: The only difference, of course, is that mootness is asked when there's an intervening event after the case has already been in federal court. [00:30:53] Speaker 05: So if we imagine that she were in district court seeking to enjoin the administrative proceedings, and if she had been raising the same structural constitutional questions, if while those proceedings were going on, the comptroller issued his final decision dismissing the action, that would moot the district court case, even though what she would be seeking in the district court was a declaration that the agency's proceedings were void ab initio. [00:31:16] Speaker 05: And she wouldn't be able to continue in that district court case simply because she didn't get a dismissal for the reasons that she required. [00:31:23] Speaker 05: And you had an exchange about Axon, and I want to bring up that that's exactly what happened in Axon. [00:31:28] Speaker 05: After the Supreme Court issued its decision in Axon, it was remanded to the District Court so that Axon could raise its structural constitutional challenges to the agency. [00:31:36] Speaker 05: And the FTC dismissed the case administratively against Axon. [00:31:40] Speaker 05: And then both parties agreed that the district court case was then moot. [00:31:44] Speaker 05: Axon voluntarily dismissed its claims because they weren't simply seeking an advisory opinion on these constitutional questions. [00:31:50] Speaker 05: They wanted substantive relief from the administrative proceeding. [00:31:53] Speaker 06: Why did they have an injury on appeal? [00:31:56] Speaker 06: Why did they have standing? [00:31:58] Speaker 05: Well, so in Axon, there were still ongoing administrative proceedings. [00:32:02] Speaker 05: Exactly. [00:32:03] Speaker 05: And in this case, of course, Judge Bennett, you were quoting the language of Axon, which suggests that once a proceeding is over, it cannot be undone. [00:32:11] Speaker 06: So opposing counsel argued that we shouldn't view that as a limitation in Axon, that they made an exception or expanded, right, to allow the interlocutory proceeding. [00:32:20] Speaker 06: But we shouldn't read Axon as requiring an ongoing proceeding to establish an injury. [00:32:24] Speaker 05: Right. [00:32:25] Speaker 05: And I think I don't think Axon stands for that proposition. [00:32:28] Speaker 05: And I think that just runs into the redressability prong of Article 3. [00:32:32] Speaker 05: I think there's nothing left to redress. [00:32:34] Speaker 05: All this court could do with respect to any of the structural issues that she claims are on appeal is issue an advisory opinion. [00:32:42] Speaker 05: And if you look at the issues. [00:32:43] Speaker 06: Her argument, to play devil's advocate, her argument is there is something that she would, he said, value very much an order indicating that the proceeding was [00:32:54] Speaker 06: improper from the get-go because she finds the statements in the order of dismissal to be disparaging and professionally damaging. [00:33:03] Speaker 06: That is her position. [00:33:04] Speaker 05: Right, and that doesn't work, Your Honor, because that simply is an advisory opinion, because it would be a declaratory judgment not tied to any substantive relief. [00:33:12] Speaker 05: Unlike an axon, it wouldn't be tied to an injunction to stop the proceedings. [00:33:17] Speaker 05: It wouldn't be tied to a dismissal. [00:33:18] Speaker 05: So that's simply an advisory opinion. [00:33:20] Speaker 02: And there are some cases, I believe, that talk about some of the things that Miss Okohoshi is seeking redress for is psychic harm, which is not redressable. [00:33:32] Speaker 05: So I would like to briefly address this theory of reputational harm. [00:33:38] Speaker 05: Appellant has not cited a single case in which a court has accepted this theory of reputational injury. [00:33:44] Speaker 05: And Judge Christin, I believe, I think you mentioned the potential availability of a tort claim. [00:33:49] Speaker 05: I think because appellate courts review judgments and not statements and opinions, there would need to be a separate collateral action and an applicable waiver of sovereign immunity to challenge something like that. [00:33:59] Speaker 05: But that's exactly why Congress created EJA. [00:34:02] Speaker 05: And so, again, in EJA, [00:34:04] Speaker 05: Ms. [00:34:04] Speaker 05: Sakahoshi, if she prevails in her EGIC claim, would not only be entitled to monetary remedies, but also a statement either from the comptroller or from a reviewing court that the OCC was not substantially justified. [00:34:15] Speaker 05: So that can provide this sort of psychic relief that a litigant is looking for. [00:34:20] Speaker 06: Did she show that the proceeding was not substantially justified? [00:34:22] Speaker 05: Exactly. [00:34:23] Speaker 06: That's what I was getting at, yes. [00:34:24] Speaker 05: Exactly, if she can show that the proceeding was not substantially justified. [00:34:27] Speaker 05: And I just want to highlight a few cases that we, although Petitioner has not pointed to a single case in which a court has upheld this theory of [00:34:37] Speaker 05: standing to appeal an agency order that is fully favorable. [00:34:41] Speaker 05: We cite several cases where the court has rejected that theory of reputational injury. [00:34:45] Speaker 05: So advanced management technology versus the FAA. [00:34:47] Speaker 05: In the DC circuit, their AMTI was bidding in contracts with the FAA. [00:34:53] Speaker 05: They won a fully lucrative contract, so the FAA entered an order granting them the contract. [00:34:58] Speaker 05: But in that order, the FAA said that AMTI had engaged in misrepresentations in an earlier bidding process. [00:35:04] Speaker 05: So there was an affirmative statement from the FAA saying effectively that AMTI lied to the government and AMTI tried to appeal that order saying this harms our reputation. [00:35:12] Speaker 05: Here's a statement from the FAA saying that we we lied to the government but the DC Circuit rejected that and they said that we have no allegations much less evidence as to the present or future consequences of this language and because appellate courts are reviewing judgments and not statements and opinions we're not going to [00:35:29] Speaker 05: essentially line edits the agency order to strike out the offending language. [00:35:34] Speaker 05: In Robertson versus Colvin, I won't go through all of the cases, but there are several cases in which courts have rejected this precise theory. [00:35:43] Speaker 05: And then the final thing I'd like to note [00:35:45] Speaker 05: is that I think this court can just look at the issues that petitioner claims are on appeal and look at the remedy provided in every single case that she cites. [00:35:53] Speaker 05: So a remedy for a statute of limitations, for instance, is a dismissal of the time barred claims, even if this court were to accept all of her theories regarding statute of limitations that wouldn't even apply to all of the claims that enforcement counsel has brought here. [00:36:06] Speaker 05: And so the remedy would be for this court to [00:36:08] Speaker 05: dismiss the time barred claims, but preserve the others. [00:36:11] Speaker 05: But that's certainly an odd remedy in this case, because the comptroller has already dismissed all of the charges. [00:36:16] Speaker 05: And then actually, the final thing I'd like to note is, in some of these other cases, there are more affirmative statements adverse to litigants than anything that appears in the comptroller's final decision. [00:36:26] Speaker 05: Judge Bennett, you pointed out some language in the final decision. [00:36:29] Speaker 05: He's very clear that the posture of the case is on summary disposition. [00:36:35] Speaker 05: And so there were still material factual disputes [00:36:37] Speaker 05: But in certain cases, including in Good Samaritan, the lower court order there had an affirmative finding that the taxpayers engaged in deceptive or manipulative conduct under Alaska law. [00:36:46] Speaker 05: But this court simply applied the longstanding rule of appellate practice to deny that appeal. [00:36:51] Speaker 05: And same with AMTI. [00:36:52] Speaker 05: In Robertson versus Colvin, there's a statement that Sue Espante diagnosed the litigant with a mental illness. [00:36:58] Speaker 05: All of these statements are more injurious than the language that appears in the comptroller's final decision. [00:37:03] Speaker 05: But the courts there still did not permit them to appeal those fully favorable orders. [00:37:07] Speaker 05: Unless this court has any further questions. [00:37:11] Speaker 05: I will see that we do okay. [00:37:13] Speaker 05: Thank you your honors. [00:37:14] Speaker 06: Thank you for your argument Council Could you go straight to the point that I've been trying to it's taken a while to surface this but opposing counsel's response is that they haven't taken the position that your client was prevailing and when I [00:37:34] Speaker 06: proceeding and not prevailing in the other proceeding, but rather taking the position pursuant to the Equal Access to Justice Act that they were substantially justified in bringing the action. [00:37:44] Speaker 06: What about that? [00:37:44] Speaker 04: That's inaccurate, Your Honor. [00:37:47] Speaker 04: OCC Enforcement Council appealed from the ALJ's recommended decision on fees, on the fee application, and said that the ALJ should have denied the fee application not only on the grounds that the conduct was substantially justified as demonstrated by [00:38:03] Speaker 04: the acting comptroller's final order, but also on the grounds that Ms. [00:38:08] Speaker 04: Akahoshi was not a prevailing party. [00:38:10] Speaker 04: So they're making that argument. [00:38:12] Speaker 04: The idea that, you know, my learned opposition counsel here is somehow not accountable and need not be consistent with arguments that are made by enforcement counsel, [00:38:26] Speaker 04: I think is along the same lines as what they're positing with respect to justiciability, which is a review and accountability free zone, an appeal free zone. [00:38:36] Speaker 06: I'm not sure it's an appeal free zone. [00:38:38] Speaker 06: So my position was, going back to Judge Benitz, I think his very first question, there are certainly criminal defendants who wind up being vindicated, at least on the record, and feel like their lives have been [00:38:49] Speaker 06: really put through the wringer. [00:38:51] Speaker 06: Sometimes they lose their homes, their jobs there. [00:38:53] Speaker 06: It's horrendous. [00:38:55] Speaker 06: It's very, very difficult. [00:38:56] Speaker 06: So your client is taking a great umbrage at the text of this order, and I understand that. [00:39:04] Speaker 06: But if she can prove that the government was not substantially justified, it seems to me she'd be in a position to say that the administrative charges were dismissed and that they wound up paying her fees. [00:39:15] Speaker 04: I mean, it would be easy enough for them to have just conceded. [00:39:20] Speaker 04: It would be easy enough for the acting comptroller to have issued a decision that said, based on the passage of time, I'm ordering this case to be dismissed. [00:39:28] Speaker 04: The acting comptroller chose not to do that. [00:39:30] Speaker 04: He added 20 additional pages. [00:39:33] Speaker 04: Council, in front of this court, says that those 20 pages said nothing and are irrelevant. [00:39:40] Speaker 04: Those are inconsistent positions by the comptroller. [00:39:44] Speaker 06: Well, let me do it this way, because you are over time. [00:39:46] Speaker 06: He has quite a number of other cases where he's just argued them. [00:39:51] Speaker 06: And they're in his briefing about analogous circumstances. [00:39:54] Speaker 06: Do you want to point us to authority that cuts your way? [00:39:58] Speaker 04: Yes, Your Honor. [00:39:59] Speaker 04: So there's the case that I already mentioned, which had to do with the district court issuing an opinion without jurisdiction, that this court vacated. [00:40:07] Speaker 04: And then there's another one. [00:40:09] Speaker 04: And I apologize. [00:40:09] Speaker 04: In going through and preparing for argument, I realized that, [00:40:14] Speaker 04: I attributed this to the Shell Oil case, but really Shell Oil was talking about an earlier case in the D.C. [00:40:23] Speaker 04: Circuit and describing the facts of an earlier case in the D.C. [00:40:26] Speaker 04: Circuit. [00:40:26] Speaker 04: But in Shell Oil describing that earlier case, the D.C. [00:40:30] Speaker 04: Circuit said that they have permitted an appeal by a union whose primary argument was that the ICC lacked jurisdiction to review an arbitral award. [00:40:42] Speaker 04: And in the particular, on the merits of the arbitral award, in that case, the ICC had found in favor of the union. [00:40:50] Speaker 04: So the union won, but their main argument was, we should never be here in front of the ICC. [00:40:57] Speaker 04: And the DC Circuit said, that's correct. [00:41:01] Speaker 04: There is jurisdiction to review this fundamental question of the authority of the ICC, even though the union won on the particular award. [00:41:11] Speaker 04: And this case is no different from that because the Supreme Court has said that essentially it's necessary to incentivize people to police the appointments clause. [00:41:23] Speaker 04: Ms. [00:41:23] Speaker 04: Okohoshi has been seeking to do so from filing her initial answer in the case years and years ago. [00:41:30] Speaker 04: And the OCC is trying to escape review [00:41:34] Speaker 04: after putting her through this gauntlet of the structural defects in its system. [00:41:40] Speaker 04: And it's different from Axon because I'm confident that if we brought a district court case to enjoin the action, they would have said that Section 1818 doesn't permit a district court [00:41:53] Speaker 04: It doesn't permit review. [00:41:55] Speaker 04: It's different from the SEC statutes which permit either district court actions or agency actions. [00:42:00] Speaker 04: And they would have said it's unreviewable. [00:42:02] Speaker 04: So everything that they do is unreviewable. [00:42:05] Speaker 06: I'm going to ask you to wrap up. [00:42:06] Speaker 06: Is there anything else? [00:42:07] Speaker 04: That's it, Your Honor. [00:42:08] Speaker 04: I was just trying to answer your question. [00:42:10] Speaker 06: I appreciate that. [00:42:11] Speaker 06: But I think I've taken you way over. [00:42:12] Speaker 06: So I'm going to leave it at that. [00:42:14] Speaker 06: Thank you both for your arguments. [00:42:15] Speaker 06: We'll stand in recess. [00:42:16] Speaker 02: Thank you, Your Honor.