[00:00:03] Speaker 01:
Your Honor, may it please the Court, Giancarlo Vargas, for the appellant, William Dunn.

[00:00:06] Speaker 01:
I'd like to reserve two minutes of my time for rebuttal.

[00:00:09] Speaker 01:
The District Court erred in holding that it lacked subject matter jurisdiction over this case.

[00:00:14] Speaker 01:
The Court had federal question jurisdiction because Mr. Dunn stated claims under federal law, the Administrative Procedure Act, about a federal agency violating federal regulations.

[00:00:24] Speaker 01:
The Court was also wrong to hold that Mr. Dunn did not state claims to compel agency actions.

[00:00:29] Speaker 01:
Under APA 7061,

[00:00:31] Speaker 01:
a plaintiff states a claim that they identify discrete agency actions that are legally required, that have been unlawfully withheld, or unreasonably delayed.

[00:00:39] Speaker 01:
Mr. Dunn has made that showing here.

[00:00:41] Speaker 03:
Counsel, would you direct your attention to the question that was sent in the order about standing?

[00:00:47] Speaker 01:
Yes, Your Honor.

[00:00:50] Speaker 01:
So there is a concrete injury every time that Mr. Dunn does not receive a response within 20 days as the regulations require at the BP-9 level.

[00:01:00] Speaker 03:
I have a question about that as well because as I understand the procedure and no response is equivalent to a denial which can be appealed to the later level.

[00:01:13] Speaker 03:
So what would be different

[00:01:19] Speaker 01:
Your Honor, the difference would be getting a true response at the BP-9 level.

[00:01:23] Speaker 01:
So the deemed denial is not equivalent to a real denial.

[00:01:27] Speaker 03:
Why not?

[00:01:28] Speaker 01:
So I point to the program statement where the warden is told that they must not only give a grant or a denial, but they also must state the reasons that they're giving the decision.

[00:01:37] Speaker 01:
That's part of the process that Mr. Gunn is entitled to when he gets the response.

[00:01:41] Speaker 01:
And I'll highlight also, there's a timeliness thing here as well, where a BP9 is due within 20 days of a complaint being filed.

[00:01:48] Speaker 01:
The additional 30 days to file a BP10 and potentially get a response back, that is different.

[00:01:54] Speaker 01:
And I'll just highlight one of the BP9s Mr. Dunn filed and did not get a BP9 response to.

[00:01:59] Speaker 01:
He complained about blown cell lights off for two weeks.

[00:02:02] Speaker 01:
That's a concrete injury that the difference in 20 days versus 50 days, that's real.

[00:02:07] Speaker 01:
And I'll also point to the regulations.

[00:02:08] Speaker 04:
And so for that one, did he get any response at any point?

[00:02:12] Speaker 01:
No, Your Honor.

[00:02:14] Speaker 04:
So then did he appeal that?

[00:02:16] Speaker 01:
Your Honor, I'd have to look at his chart to see exactly if he appealed this particular one, but I believe he did.

[00:02:22] Speaker 04:
So are you saying that the injury is that it took

[00:02:27] Speaker 04:
50 days to be able to appeal instead of 20 days to be able to appeal?

[00:02:30] Speaker 01:
No, Your Honor.

[00:02:31] Speaker 01:
That was just clarifying why the response at the BP-9 level is distinct from getting a response later on to the BP-10 level.

[00:02:39] Speaker 01:
The concrete injury underlying the procedural injury is what he's complaining about.

[00:02:44] Speaker 01:
So the cell lights being off or another complaint getting a face planting shakedown, those are the concrete injuries.

[00:02:50] Speaker 04:
Right.

[00:02:50] Speaker 04:
Those might be injuries.

[00:02:51] Speaker 04:
But if a lack of response counts as a denial,

[00:02:55] Speaker 04:
If we think the prison would have just denied it anyway, what is the difference for him?

[00:02:59] Speaker 04:
I still don't really understand the answer.

[00:03:01] Speaker 01:
Your Honor, I would just point this court to Clements v. Airport Authority of Washoe County, where this court explained that even if you can get de novo review at a higher level and even if you can win a full relief on your underlying substantive claim on an appeal, that doesn't change the fact that there is a violation of due process or a violation of the procedural right

[00:03:21] Speaker 01:
down below.

[00:03:22] Speaker 01:
And that is the case here.

[00:03:23] Speaker 01:
Just because Mr. Dunn can chase that appeal at the BP10 level doesn't mean that the warden is causing an injury when he doesn't follow his obligation to give a response that under the program statement should have not only a yes or no, but also reasons for why the warden is giving that response.

[00:03:37] Speaker 03:
But it seems to me that the existence of the procedure allowing an appeal when there is no response undercuts the idea that a response is required

[00:03:49] Speaker 03:
Otherwise, there wouldn't be such a provision, it seems to me.

[00:03:53] Speaker 03:
So why isn't it a permissible option for the warden to say, hey, I'm busy, and I know these folks can appeal on up, and I just don't have time to deal with all these complaints?

[00:04:07] Speaker 03:
It seems to me that that's not really a violation as much as an option.

[00:04:13] Speaker 01:
Your Honor, I'll point to three different places in the regulations that show that it is very much a violation when the warden does not give a response.

[00:04:20] Speaker 01:
So first, 542-18, it says the inmate may treat silence as a denial.

[00:04:25] Speaker 01:
It doesn't say that the warden can make that inference.

[00:04:27] Speaker 01:
And it's because the silence as a denial is a provision meant to protect Mr. Dunn and inmates in their pursuit of an appeal.

[00:04:35] Speaker 01:
I'd also point to 542-17.

[00:04:36] Speaker 04:
But isn't that exactly the point?

[00:04:38] Speaker 04:
It protects him.

[00:04:39] Speaker 04:
So why doesn't that eliminate any injury?

[00:04:41] Speaker 01:
It does not eliminate any injury.

[00:04:43] Speaker 01:
And I was pointing out to the fact that it does not obviate the warden's responsibility to give a response in the first place.

[00:04:49] Speaker 01:
There is a duty.

[00:04:50] Speaker 01:
And the other place I'd point to for that is 542-17A and 17B.

[00:04:54] Speaker 01:
There, the warden is actually given express permission in the regulations to give silence as a response if a complaint is abusive, it's obscene, or it's not in accordance with this part.

[00:05:04] Speaker 01:
However, 542-17B, the very next provision says, in that instance, the warden still has to provide written notice to the prisoner explaining why they're not accepting that complaint.

[00:05:13] Speaker 02:
Counsel, as a matter of practice, what is in the denial?

[00:05:15] Speaker 02:
Is it just a denial, or is there a reason for the denial?

[00:05:18] Speaker 01:
I'm sorry, Your Honor, denial.

[00:05:19] Speaker 02:
When a warden denies a complaint, what is traditionally provided?

[00:05:23] Speaker 02:
Is it just denial, or is there a reason for the denial?

[00:05:26] Speaker 01:
Your Honor, it's not entirely clear from the face of Mr. Dunn's complaint what it traditionally is.

[00:05:31] Speaker 01:
But under the program statement, the warden is supposed to give a full and complete response that includes both the denial or grant of relief and then stated reasons for why they're giving their relief.

[00:05:41] Speaker 03:
Oh, I'm sorry.

[00:05:42] Speaker 02:
Just one follow-up.

[00:05:42] Speaker 02:
Then on appeal, if silence is treated as denial, how is the appellate board's, what reasoning do they impute to that denial?

[00:05:54] Speaker 02:
Do we know?

[00:05:55] Speaker 01:
We don't know, Your Honor.

[00:05:56] Speaker 01:
And that's, I think, also part of the reason why this is a real injury.

[00:05:58] Speaker 01:
542-15 requires Mr. Dunn to attach his BP-9 response when he files his BP-10 and BP-11 appeals.

[00:06:05] Speaker 01:
Presumably, that helps with the investigation at the higher levels.

[00:06:07] Speaker 01:
But if Mr. Dunn is not getting that response, that's a missing part of the record here.

[00:06:11] Speaker 02:
Right.

[00:06:11] Speaker 02:
And then the appellate board has to presume or speculate or why the denial happened versus, OK.

[00:06:15] Speaker 01:
Exactly, Your Honor.

[00:06:16] Speaker 03:
I wanted to go back to the section that you just cited about the abusive complaints.

[00:06:25] Speaker 03:
I may be wrong about this, but I understood those to be situations in which the warden could refuse to accept a complaint, which seems to me distinct from accepting a complaint and allowing time to elapse.

[00:06:39] Speaker 03:
Am I incorrect about that?

[00:06:42] Speaker 01:
Your Honor, Your Honor, I believe you are incorrect about that.

[00:06:45] Speaker 01:
I think it is the warden can reject without a response.

[00:06:49] Speaker 01:
But I think they still have to accept the BP9 complaint.

[00:06:52] Speaker 01:
Regardless, I think the fact that the Warrens empower the Warren to treat silence as a response in that instance, but they still have to provide written notice to Mr. Dunn whether or not they accept the complaint.

[00:07:03] Speaker 01:
542-17B says they have to give written notice to Mr. Dunn explaining why they're not accepting his complaint or rejecting it with silence, because that's part of the procedural right that Mr. Dunn is entitled to, a reasoned decision when he files the BP-9 complaint.

[00:07:17] Speaker 02:
Can I ask one Merit's question before we run out of time?

[00:07:20] Speaker 02:
So the magistrate or the R&R did not include 1331 as a subject matter jurisdiction.

[00:07:28] Speaker 02:
Why not?

[00:07:28] Speaker 02:
I understand that's what you're claiming now.

[00:07:31] Speaker 02:
1331 is the avenue for subject matter jurisdiction.

[00:07:35] Speaker 02:
Why didn't the magistrate consider that?

[00:07:37] Speaker 01:
Your Honor, we're not sure, because it appears on the face of Mr. Dunn's complaint.

[00:07:42] Speaker 01:
He cites to 1331.

[00:07:43] Speaker 01:
He cites to do versus Gonzales, which states the principle that 1331 gives the subject matter jurisdiction for an APA claim.

[00:07:49] Speaker 01:
So the court had federal question jurisdiction and should have acknowledged that.

[00:07:53] Speaker 02:
Was that lodged in the objections to the R&R?

[00:07:56] Speaker 01:
I believe so, Your Honor.

[00:07:57] Speaker 01:
But then even if he hadn't cited to 1331, these are federal claims against a federal agency for violating federal regulations.

[00:08:03] Speaker 01:
is a pro se litigant, whether or not he cites to 1331 is irrelevant to determining the court's jurisdiction.

[00:08:09] Speaker 04:
I also have some more questions, so we'll still give you your rebuttal time.

[00:08:12] Speaker 04:
But as we ask questions, you can keep answering.

[00:08:14] Speaker 04:
So the petition lists some examples of requests that were denied for what Mr. Dunn claims are just arbitrary reasons, like things that are just wrong.

[00:08:25] Speaker 04:
Are those in the petition for the purpose of challenging the prison's policies and practices, or are those in the petition because he actually is trying to individually challenge each of those denials at this point?

[00:08:37] Speaker 01:
There's two reasons why they're there, Your Honor.

[00:08:39] Speaker 01:
First is challenging the individual discrete failures to provide responses or provide receipts.

[00:08:44] Speaker 01:
And then also it's there on remand if the warden wants to, you know, plead exhaustion as an affirmative defense.

[00:08:51] Speaker 01:
These are data points showing that there's not a truly available administrative remedy at Victorville right now that Mr. Yearn would have to exhaust for each of these complaints because he's seeing more than half of his BP9s getting rejected without a response.

[00:09:03] Speaker 04:
So that second one is about the practices in general, but going back to the first.

[00:09:07] Speaker 04:
So you said he is trying to challenge these individual denials.

[00:09:11] Speaker 04:
So are they moot at this point, though?

[00:09:13] Speaker 04:
I mean, some of these things happened a long time ago at this point.

[00:09:17] Speaker 04:
Is he actually trying to litigate each of these now?

[00:09:19] Speaker 04:
And so you're asking for a remand to litigate each of those?

[00:09:22] Speaker 01:
Yes, Your Honor.

[00:09:23] Speaker 01:
We did ask for a reverse and remand, so he could litigate these claims.

[00:09:26] Speaker 01:
And it would look like it would be a case by case or claim by claim distinction.

[00:09:30] Speaker 01:
So some of his claims definitely do survive.

[00:09:33] Speaker 01:
Things about $282 of wages being lost or being subjected to a face planting shakedown, these are injuries that would continue on.

[00:09:41] Speaker 01:
Potentially, some complaints that are about institution conditions that have passed, maybe those would become moved.

[00:09:45] Speaker 01:
But it would be a complaint by complaint basis, Your Honor.

[00:09:48] Speaker 04:
And so what are you asking us to do right now?

[00:09:50] Speaker 01:
Your Honor, we're asking that you hold that there was federal question jurisdiction for his APA claims, hold that he did state a claim under API 7061 to challenge these four different types of discrete agency actions that the warden withheld on dozens and dozens of occasions, and then also hold that Mr. Dunn did state these 7062A claims that two of the warden's policies were arbitrary, capricious, or not in accordance with law.

[00:10:12] Speaker 01:
and then remand so that Mr. Dunn can proceed to summary judgment on to trial to prove out these claims.

[00:10:16] Speaker 04:
So that list did not include the thing I was just asking about as I understood it.

[00:10:21] Speaker 04:
So I was just asking about the ones that you say are arbitrary denials, not lack of denial, but actual denials.

[00:10:29] Speaker 04:
You have some of those.

[00:10:31] Speaker 04:
And I think those are 7062 claims, right?

[00:10:35] Speaker 01:
Yes, Your Honor.

[00:10:35] Speaker 01:
I guess those would be 7062 claims for the arbitrary denials on each of them.

[00:10:39] Speaker 01:
OK, so in your list of what we should do, what do you want us to do with those?

[00:10:42] Speaker 01:
I would love to add those as well on remand that he can proceed those claims.

[00:10:45] Speaker 04:
And so you're not asking us, though, but are you asking us to parse which of those should proceed and which of those should not proceed?

[00:10:52] Speaker 04:
Or you would just want us to say there's subject matter jurisdiction over the APA and remand the whole thing?

[00:10:57] Speaker 01:
Your Honor, I think to go on that complaint by complaint basis, I think remanding to the district court to go through these individual complaints, that would be the appropriate course here.

[00:11:06] Speaker 04:
So are there any merits issues other than jurisdiction that you want us to reach?

[00:11:12] Speaker 01:
Your Honor, the fact that he stated the APA 7062A claims challenging the one at a time rule and also this proof of informal resolution rule as well, that would be a merits decision.

[00:11:21] Speaker 03:
I have another question.

[00:11:23] Speaker 03:
Sorry.

[00:11:25] Speaker 03:
The one at a time rule, is your client alleging that that rule has

[00:11:33] Speaker 03:
actually prevented the filing of any complaints?

[00:11:38] Speaker 01:
Yes, Your Honor.

[00:11:39] Speaker 01:
So I would point you to SER 46, where he's identified three BP9s and nine BP8s that were rejected on account of the one-at-a-time rule.

[00:11:48] Speaker 01:
But then he's also complained more generally in his complaint about BP8s and BP9s being rejected on account of the one-at-a-time rule, not specific instances.

[00:11:55] Speaker 01:
But yes, he has identified times where the one-at-a-time rule has prevented him from using the administrative remedy program at Victorville, as he's allowed to do.

[00:12:04] Speaker 01:
With that, if there are no further questions, I'd like to reserve the reminder of my time for rebuttal.

[00:12:08] Speaker 04:
You'll still get two minutes.

[00:12:09] Speaker 04:
Thanks.

[00:12:10] Speaker 01:
Thank you.

[00:12:18] Speaker 00:
Good morning, Your Honors.

[00:12:19] Speaker 00:
May it please the court, Assistant United States Attorney Eugene Chun, on behalf of Respondent Warden.

[00:12:26] Speaker 00:
This is a case about a writ of mandamus.

[00:12:31] Speaker 00:
Mr. Dunn does not have a legal entitlement to the things that he is seeking in this writ, which includes, for example, detachable receipts on perforated paper,

[00:12:41] Speaker 04:
48-hour... Why is it not an APA claim?

[00:12:44] Speaker 04:
I mean, he could have pled a mandamus and the APA, and then you could say mandamus isn't necessary because APA, but I don't understand why this wouldn't be an APA claim, especially because he was per se.

[00:12:55] Speaker 00:
Your Honor, as the Court pointed out earlier, the District Court did not consider whether there was an APA claim to begin with.

[00:13:02] Speaker 04:
But that's why we have appellate courts, right, to figure out whether... Yes, Your Honor.

[00:13:05] Speaker 00:
And in this case, Mr. Dunn had explicitly disclaimed that he was making such a claim.

[00:13:12] Speaker 00:
He actually stated in his opposition to the motion to dismiss in question that he was not making a claim for declaratory and injunctive relief to compel agency action and that he was only seeking a writ of mandamus.

[00:13:25] Speaker 04:
Now with that- And where is that in the record?

[00:13:28] Speaker 00:
Your Honor, it's in the court's record 64.

[00:13:37] Speaker 00:
It's not in the supplemental excerpts, but it's in the court's record at docket 64.

[00:13:49] Speaker 00:
And in the first paragraph... Wait, are you saying it's not in the excerpts of record?

[00:13:53] Speaker 00:
No, Your Honor, it's in the court's record, Your Honor.

[00:13:55] Speaker 04:
What do you mean by that?

[00:13:56] Speaker 04:
The district court docket?

[00:13:58] Speaker 00:
Yes, Your Honor.

[00:13:58] Speaker 04:
Okay, so why did you not submit it to our court, if this is a key part of your argument?

[00:14:02] Speaker 00:
It is not, Your Honor.

[00:14:05] Speaker 00:
When the case was first submitted to the appellate court, Mr. Dunn was representing himself.

[00:14:10] Speaker 00:
And after he submitted his papers, we submitted a supplemental excerpt as required for pro se plaintiffs.

[00:14:19] Speaker 00:
And later on, when the APA claims were brought up, we did make the argument that they were being made for the first time on appeal.

[00:14:29] Speaker 00:
in retrospect.

[00:14:30] Speaker 04:
That's a different argument than he affirmatively waived them.

[00:14:33] Speaker 04:
So I feel like you may be, why didn't you affirmatively waive the affirmative waiver argument by not giving us the material?

[00:14:39] Speaker 00:
Your Honor, we do regret that that was not submitted.

[00:14:42] Speaker 00:
But I do believe that this does not affect the court's decision to affirm because the district court did

[00:14:52] Speaker 00:
consider the APA argument a little bit.

[00:14:55] Speaker 00:
They did discuss that to the extent that Mr. Dunn might have jurisdiction outside of the mandamus jurisdiction, he still could not state a claim.

[00:15:04] Speaker 00:
And as the court pointed out, the APA action for compelling agency action, that analysis is very similar to a mandamus action, especially where the relief sought is the same.

[00:15:15] Speaker 04:
But he also has, so there's two types of APA claims.

[00:15:20] Speaker 04:
withholding of agency action that's required, and then there's actual agency action that's done in an arbitrary and capricious way.

[00:15:27] Speaker 04:
And he's arguing the second thing, at least now, and that does not overlap with mandamus.

[00:15:33] Speaker 00:
That's correct, Your Honor.

[00:15:35] Speaker 00:
And the APA actions under 7062A to set aside, those actions were found nowhere in the district court level.

[00:15:44] Speaker 00:
And they're being brought up for the first time.

[00:15:46] Speaker 04:
And if they're purely legal, why does it matter?

[00:15:49] Speaker 00:
Your Honor, it matters in the sense that this court cannot read into the petition something that was not there.

[00:15:59] Speaker 00:
insert even elements of a claim, but for the court to insert actual claims into the petition will be for the court to act as an advocate for the plaintiff.

[00:16:09] Speaker 04:
Well, doesn't the complaint only need to state facts that would support a claim?

[00:16:12] Speaker 04:
Where's your case that says you have to actually, especially as a pro se litigant, correctly identify your legal claims in a complaint?

[00:16:21] Speaker 00:
Well, Your Honor,

[00:16:22] Speaker 00:
The answer is actually in two parts.

[00:16:24] Speaker 00:
The first part of it is that this is a petition for writ of mandamus, not a complaint.

[00:16:29] Speaker 00:
So the court can grant a petition, but the court does not grant a complaint.

[00:16:36] Speaker 00:
In that sense, the writ of mandamus analysis is jurisdictional, unlike the failure to state a claim in the case of a complaint.

[00:16:44] Speaker 00:
So that means that the court must find that the petitioner has a legal entitlement to the relief that he is actually seeking, or else a clear and certain claim does not exist.

[00:16:58] Speaker 00:
I'm a little unclear.

[00:16:59] Speaker 02:
So you're saying that the Dunn's pro se petition did not include the APA at all?

[00:17:06] Speaker 00:
No, he did not.

[00:17:07] Speaker 00:
He did mention the APA as a potential jurisdictional ground, and that's why the report and recommendation clarified that the APA and the Declared Great Judgment Act do not independently confer jurisdiction.

[00:17:20] Speaker 02:
So then why didn't the Magistrate Judge consider the APA in conjunction with 1331?

[00:17:25] Speaker 03:
Because your honor as I stated before and and I regret that it is not in the record but in the opposition to the motion to dismiss Mr.. Dunn did explicitly disclaim that but again Again, the analysis is the original petition in the requests for relief that started SCR 72 Specify a whole series of things that petitioner wants to

[00:17:54] Speaker 03:
But that does not include, as I recall it at least, the idea that there were particular decisions that were arbitrary and capricious.

[00:18:06] Speaker 00:
That is correct.

[00:18:06] Speaker 03:
It asks for future-oriented

[00:18:09] Speaker 03:
stuff of all kinds.

[00:18:11] Speaker 00:
Yes, correct.

[00:18:12] Speaker 00:
And that is correct.

[00:18:13] Speaker 00:
And in Norton versus Southern Utah, the court considers something like this and found that general compliance cannot be compelled via an APA or a mandamus action.

[00:18:25] Speaker 00:
So if Mr. Dunn were to seek, for example, a response or a receipt or a reversal of some sort of rejection, he can bring that claim.

[00:18:34] Speaker 00:
But that is not the case before the court today.

[00:18:36] Speaker 02:
So wait, I'm looking at SCR 36, and it's very light, but it says this court also has jurisdiction under the Administrative Procedures Act, APA.

[00:18:44] Speaker 02:
Why is that not enough?

[00:18:46] Speaker 00:
That is not enough, Your Honor, because the APA does not confer jurisdiction.

[00:18:53] Speaker 00:
So the APA acts

[00:18:54] Speaker 00:
to act as a waiver of sovereign immunity and can be used in conjunction with the mandamus statute.

[00:19:01] Speaker 04:
So didn't he also cite 1331?

[00:19:03] Speaker 04:
Excuse me?

[00:19:04] Speaker 04:
He also cited 1331, didn't he?

[00:19:07] Speaker 00:
He discussed it.

[00:19:08] Speaker 00:
And again, when he was responding to the motion to dismiss, he did clarify that he made a mistake.

[00:19:15] Speaker 03:
My concern is with the relief requested, does that

[00:19:20] Speaker 03:
sort of supersede all of the factual discussion, or is it something that we can consider should be added to?

[00:19:28] Speaker 03:
That's what I was trying to get at, I guess, with my earlier question.

[00:19:33] Speaker 00:
Yes, Your Honor.

[00:19:34] Speaker 00:
So the relief is extremely important because it is a writ for a petition for a writ of mandamus.

[00:19:40] Speaker 00:
And even if the court were to construe this as an AP action, the analysis is the same, because the court must consider whether there is a discrete agency action that is required by law.

[00:19:52] Speaker 00:
So that analysis necessitates the analysis of what is being asked of the court.

[00:19:59] Speaker 00:
So if the court were to, for example, remand to reverse some of these specific things, by that the court would actually be

[00:20:08] Speaker 00:
denying the writ, because that is not what he asked for.

[00:20:11] Speaker 02:
So I'm looking at SCR 34, which is labeled petition for relief in the nature of mandamus.

[00:20:18] Speaker 02:
That's his petition, right?

[00:20:20] Speaker 02:
Yes.

[00:20:20] Speaker 02:
And then if you look at the bottom of 36, it says, while the APA does not confer subject matter jurisdiction by itself, the APA, in conjunction with 28 USC 1331, gives federal courts.

[00:20:34] Speaker 02:
I can't read the rest, but that's it.

[00:20:36] Speaker 02:
Is that the whole ballgame?

[00:20:38] Speaker 02:
It says it right there.

[00:20:39] Speaker 00:
Well, we're going off of what the district court understood the petition to read.

[00:20:44] Speaker 02:
But that's it.

[00:20:46] Speaker 02:
It reads that exactly.

[00:20:47] Speaker 02:
Am I reading it wrong?

[00:20:49] Speaker 00:
I mean, I would disagree with that reading because I do believe that he brought that up as a jurisdictional point without making the actual APA claim.

[00:20:59] Speaker 04:
But as a pro se litigant,

[00:21:04] Speaker 04:
Don't we read it generously?

[00:21:05] Speaker 04:
I mean, this is a filing in court with the right arguments.

[00:21:09] Speaker 00:
Yes, I understand that, Your Honor.

[00:21:10] Speaker 00:
And we're not opposed to the court liberally reading this petition to include an APA claim to compel delayed agency action.

[00:21:20] Speaker 00:
But again, he would still fail to state a claim under that because there is no discrete agency action to compel.

[00:21:29] Speaker 02:
Is that a merits issue, though?

[00:21:31] Speaker 02:
Is that a subject matter, a jurisdiction question?

[00:21:32] Speaker 00:
That would be a merits issue, Your Honor.

[00:21:34] Speaker 02:
And so it seems like you'd be OK with us remanding for and to consider the merits.

[00:21:39] Speaker 00:
No, Your Honor, because the court, of course, can affirm for any reason.

[00:21:43] Speaker 00:
And if the court were to do the analysis of whether an APA claim would lie, and it is very easy for the court to do so because, again, the analysis is the same, the court must consider whether there is a discrete agency action that the court can compel here.

[00:22:00] Speaker 00:
And with respect to the specific things that he's asking for, that's not what he's asking for.

[00:22:05] Speaker 04:
So for some of the things he's saying, no one ever responded to me.

[00:22:09] Speaker 04:
Why isn't that asking for an agency action that was withheld?

[00:22:13] Speaker 00:
Because he's making an allegation he's not making that request in this lawsuit.

[00:22:19] Speaker 00:
So he can make an allegation that things have been happening, but he's not actually asking this court to get those receipts.

[00:22:28] Speaker 00:
What he's seeking is a complete overhaul of the system at Victorville.

[00:22:34] Speaker 04:
But couldn't he be asking for both?

[00:22:37] Speaker 00:
I do believe that it would be unreasonable to read the petition to be asking for both.

[00:22:43] Speaker 00:
I do recognize that one could read it to allege certain things.

[00:22:47] Speaker 00:
But in terms of what the petition is asking for, it is asking for a writ of mandamus.

[00:22:53] Speaker 00:
And for a writ of mandamus, it is jurisdictional analysis to take a look at whether the petitioner

[00:22:59] Speaker 00:
is entitled, has legal entitlement to what he is actually asking for.

[00:23:04] Speaker 03:
Let me ask you about that specifically, because one of the arguments that an opposing counsel made was that the proper reading of the regulations and program requires an answer for every complaint that is filed.

[00:23:25] Speaker 03:
What is your response to that?

[00:23:27] Speaker 00:
Your Honor, that is not true.

[00:23:29] Speaker 00:
And as the court pointed out earlier, the reason why we have that provision where the inmate can take a lack of a response as a denial is to provide for situations such as this, so that if the prison is unable to provide a response within the allotted time, that it does not get in the way of the process for the inmate.

[00:23:53] Speaker 00:
And Your Honor, I did want to briefly discuss

[00:23:58] Speaker 04:
Could you address the standing issue?

[00:24:00] Speaker 04:
So I understand you don't want us to talk about any of this, but if we assume it's before us, whether refusal to respond at all has occurred and that he's asking for some relief for that, do you think there is an injury when the prison fails to respond?

[00:24:18] Speaker 00:
Your Honor, the response is that there is no injury, in fact, as to establish standing.

[00:24:23] Speaker 00:
He did not file this lawsuit as a result of being denied a particular response.

[00:24:30] Speaker 00:
And there is no legally protected, concrete, and particularized interest in what he is seeking.

[00:24:35] Speaker 00:
Why not?

[00:24:36] Speaker 00:
Because it is not up to any inmate or any person to create an administrative remedies program of their own design.

[00:24:45] Speaker 04:
OK.

[00:24:46] Speaker 04:
Put aside the way you want us to read this petition.

[00:24:49] Speaker 04:
Let's assume that he is asking for us to order the prison to respond to the requests that were not responded to.

[00:24:56] Speaker 04:
Would he have standing to do that?

[00:24:57] Speaker 04:
Let's just assume that is what he is asking for for a second.

[00:25:00] Speaker 04:
Would he have standing for that?

[00:25:01] Speaker 00:
With respect to the receipts, no, Your Honor.

[00:25:03] Speaker 00:
As discussed before, because he can take a lack of a receipt as a denial and move on to the next level, there is no injury.

[00:25:12] Speaker 03:
What happens to a non-response when it is appealed?

[00:25:17] Speaker 03:
Does the next layer up have the opportunity to investigate and look at it on the merits?

[00:25:24] Speaker 00:
Yes, Your Honor.

[00:25:27] Speaker 02:
What happens to the silence below?

[00:25:30] Speaker 02:
What do they construe that as?

[00:25:32] Speaker 00:
It will be construed as a denial.

[00:25:35] Speaker 02:
For what reason would they construe it?

[00:25:38] Speaker 00:
the fact that it was not responded to.

[00:25:40] Speaker 00:
So they would recognize that.

[00:25:42] Speaker 02:
Substantively, what can they take away from the denial?

[00:25:46] Speaker 02:
Is there no merit or there's not ability to remedy it?

[00:25:51] Speaker 00:
I do not believe that it signifies anything for the next level on why there may not have been a response.

[00:25:58] Speaker 02:
Why there would have been a denial.

[00:26:00] Speaker 02:
Because there's many reasons why something could be denied.

[00:26:02] Speaker 02:
If all you have is silence and you're left to speculate why it was denied, then why isn't that not an injury in itself?

[00:26:09] Speaker 00:
So in that case, the next level would look at the merits of the complaint and then decide.

[00:26:13] Speaker 03:
But they look at it de novo, is what you're saying.

[00:26:16] Speaker 00:
Yes.

[00:26:18] Speaker 03:
OK.

[00:26:19] Speaker 04:
And is there somewhere in the record that explains that the next level can investigate?

[00:26:24] Speaker 00:
I don't think that I can point specifically to that, but the policies

[00:26:30] Speaker 00:
provide that it can be appealed to the next level.

[00:26:34] Speaker 00:
And I haven't found anything that suggests that there wouldn't be.

[00:26:38] Speaker 04:
OK, but you just told us there would be.

[00:26:41] Speaker 04:
So that's a lack of not.

[00:26:44] Speaker 04:
It doesn't mean there necessarily is.

[00:26:45] Speaker 04:
So is there something in the record that speaks to this?

[00:26:48] Speaker 00:
I do not.

[00:26:49] Speaker 00:
I do not have that in front of me, Your Honor.

[00:26:52] Speaker 00:
But with respect to the lack of a response, all the requests are logged online.

[00:26:58] Speaker 00:
They're logged on Sentry.

[00:26:59] Speaker 00:
And at any point, an inmate can get a copy of the log.

[00:27:02] Speaker 00:
And in fact, Mr. Dunn did retrieve a copy of the sentry log for himself as well.

[00:27:08] Speaker 00:
So there is a record being made.

[00:27:10] Speaker 00:
And if at any point, if the inmate does not receive a receipt and then he feels that he needs one, he can actually always request the log, which would contain the same information.

[00:27:22] Speaker 00:
And on top of that,

[00:27:24] Speaker 00:
He can also, there is an intranet system.

[00:27:27] Speaker 00:
So they don't have access to the internet, but there is an intranet system in which the inmates can email the administration.

[00:27:35] Speaker 00:
So that is often used to prove that a request had been made and that there was attempt at resolution.

[00:27:42] Speaker 03:
So I'm sorry to keep you up there with questions, but I asked earlier about the one at a time rule.

[00:27:53] Speaker 03:
Do you understand that rule to have the effect of preventing the filing of another complaint?

[00:28:05] Speaker 00:
So new, Your Honor, the one at a time practice, first of all, is not a rule.

[00:28:11] Speaker 00:
It is in the complex supplement.

[00:28:12] Speaker 00:
So it's a supplement for that complex specifically.

[00:28:15] Speaker 00:
And it states that ordinarily, only one form will be issued at a time.

[00:28:20] Speaker 00:
And it is actually not construed to prohibit the filing of a grievance just because an inmate already had a grievance.

[00:28:28] Speaker 00:
And the record is clear that that is the case because Mr. Dunn has been filing many grievances, more than one per week.

[00:28:35] Speaker 03:
So basically, if I understand your response correctly, and as I understood it from looking at it, it simply means that you can't amass a whole lot of things.

[00:28:46] Speaker 03:
I have 15 things I want you to think about.

[00:28:49] Speaker 03:
You have to do one at a time.

[00:28:50] Speaker 03:
Is that what it's about?

[00:28:52] Speaker 00:
No, that is incorrect, Your Honor.

[00:28:53] Speaker 03:
What does it mean, then?

[00:28:55] Speaker 00:
So the rule means that if an inmate has submitted a grievance for a form for a specific grievance, they cannot then submit yet another form for that exact same grievance.

[00:29:08] Speaker 03:
So it's a claim preclusion.

[00:29:10] Speaker 03:
Yes, Your Honor?

[00:29:10] Speaker 03:
More like claim preclusion.

[00:29:12] Speaker 00:
Yes, Your Honor.

[00:29:13] Speaker 00:
And I do recognize that in the record, it appears that while some of the rejections were with respect to claims that he had previously filed, some of them were not.

[00:29:24] Speaker 00:
And this is consistent with what Mr. Dunn had stated in his petition, which is that he's calling it this counselor's rule.

[00:29:32] Speaker 00:
He's not calling it a prison-wide practice.

[00:29:36] Speaker 00:
And so to the extent that one counselor may be misinterpreting or misapplying this rule, that is a completely different issue.

[00:29:45] Speaker 00:
It's certainly not an agency action.

[00:29:47] Speaker 00:
But as the one at a time practice stands, first of all, it is not a rule.

[00:29:52] Speaker 00:
The word ordinarily is in there.

[00:29:54] Speaker 00:
It is not a definitive statement.

[00:29:56] Speaker 00:
And it is also part of the local procedures.

[00:30:01] Speaker 00:
And I'm well over my time.

[00:30:03] Speaker 00:
Does the court have any other questions?

[00:30:05] Speaker 00:
Thank you, Your Honor.

[00:30:06] Speaker 00:
The court should affirm.

[00:30:07] Speaker 00:
Thank you.

[00:30:09] Speaker 04:
We took the other side over, so let's put three minutes on.

[00:30:24] Speaker 01:
Your Honors, first, for the APA 7061 claim, these four duties we've identified in the regulations are discreet and legally required.

[00:30:32] Speaker 01:
And Lujan Norton, I'll point to Norton.

[00:30:35] Speaker 01:
In that case, the Supreme Court is talking about you can't force general compliance with a land withdrawal program that consists of 100 plus page land use plans.

[00:30:44] Speaker 01:
That is not this case.

[00:30:45] Speaker 01:
We have four regulations that are one sentence each saying the warden shall provide a response, provide a receipt, conduct an investigation,

[00:30:52] Speaker 01:
and attempt to inform the resolved complaints.

[00:30:54] Speaker 02:
But that's all merits questions, right?

[00:30:55] Speaker 02:
That has nothing to do with jurisdiction.

[00:30:58] Speaker 01:
This was for the purposes of stating a claim, Your Honor.

[00:31:00] Speaker 01:
I just wanted to highlight that those duties.

[00:31:02] Speaker 02:
But we didn't even get that far below.

[00:31:03] Speaker 02:
Yes, Your Honor.

[00:31:05] Speaker 01:
The next point I'd like to make is that the remedy that Mr. Dunn asks for in his complaint is irrelevant to determining whether the court had jurisdiction or whether Mr. Dunn stated a claim.

[00:31:13] Speaker 01:
So Federal Rule of Civil Procedure 54C says the court will give the remedy that Mr. Dunn is entitled to.

[00:31:19] Speaker 01:
So the fact that Mr. Dunn has asked for some relief that goes beyond the exact text of 28 CFR Part 542 is irrelevant to determine whether he stated a claim.

[00:31:28] Speaker 03:
Does it matter that he styles it a petition for mandamus and he does not style it a complaint?

[00:31:35] Speaker 01:
Your Honor, no, it does not matter.

[00:31:37] Speaker 01:
As a pro se litigant, Mr. Dunn only needs to plead a combination of facts that would give rise to the claim.

[00:31:43] Speaker 01:
And here, he cites APA 7061 within his initial complaint.

[00:31:47] Speaker 01:
He also lays out the facts that there were discrete agency actions that were legally required that were not carried out on.

[00:31:53] Speaker 01:
So he has stated that claim.

[00:31:54] Speaker 01:
And the fact that as a pro se litigant, he started as a mandamus petition is irrelevant.

[00:31:59] Speaker 01:
A third to the standing, I just want to highlight again

[00:32:02] Speaker 01:
The 30 times Mr. Dunn did not receive a BP-9 response.

[00:32:06] Speaker 01:
Another reason why we can't assume these are equivalent to a denial is that we can infer these could have been grants of relief had Mr. Dunn actually received a response as he was entitled to.

[00:32:16] Speaker 02:
Can I ask, it seems like there's some factual development that requires us before reaching the standing question.

[00:32:23] Speaker 02:
Would you rather us remand that question back to the district court and let the district court figure out if they're standing for those claims?

[00:32:31] Speaker 01:
Your Honor, we think every single failure to provide a response is a concrete injury that there is standing for each of those.

[00:32:37] Speaker 02:
But the consequence of a failure to respond that you could appeal, it's unclear to us what exactly that means and what happens.

[00:32:45] Speaker 02:
And so I don't know, would you rather us not rule on that and let the district court figure it all out?

[00:32:52] Speaker 01:
No, Your Honor.

[00:32:53] Speaker 01:
We think it is clear that there is a concrete injury in any case that Mr. Dunn doesn't receive a response.

[00:32:59] Speaker 01:
That is a concrete injury each time, because it's depriving him of his procedural right to response within 20 days.

[00:33:05] Speaker 01:
The final point I'll make is that the one-at-a-time rule is not in accordance with law, even though it says ordinarily it'll be applied.

[00:33:12] Speaker 01:
The fact that it's invoked in any instance to deprive Mr. Dunn of the ability to file a BP-8 means that the warden is not fulfilling his duty under 542-13A

[00:33:21] Speaker 01:
to attempt to inform and resolve each complaint Mr. Dunn could bring in formally.

[00:33:25] Speaker 04:
And sorry, can you just respond to the prison's response about this, that it's really only about the same grievance?

[00:33:32] Speaker 04:
That is not how I had understood it.

[00:33:34] Speaker 01:
Your Honor, that is not how I understood it either.

[00:33:36] Speaker 01:
It seems like the rule is intended to prevent Mr. Dunn from filing additional BP8s if one is outstanding, regardless of what the issue is about.

[00:33:42] Speaker 01:
So any invocation of this rule to prevent Mr. Dunn from filing a BP8 is not in accordance with law with the warden's responsibility to attempt to inform and resolve that complaint.

[00:33:52] Speaker 04:
So one thing I am in trying to figure out how that policy worked I didn't see the.

[00:33:58] Speaker 04:
Petition explaining anything about like urgent issues so like is there anything in here where there's like a health concern that's urgent that the one at a time policy prevented.

[00:34:11] Speaker 01:
Your Honor, I don't have them right in front of me.

[00:34:15] Speaker 01:
I believe there is one about him getting access to UV protection because Mr. Dunn has skin cancer.

[00:34:20] Speaker 01:
I think that would be a time-sensitive matter for a BPA form.

[00:34:23] Speaker 01:
But I would need to look into that.

[00:34:24] Speaker 04:
And that's one where you think the one at a time prevented him from filing?

[00:34:27] Speaker 01:
Yes, Your Honor.

[00:34:28] Speaker 01:
I think at SER 80.

[00:34:32] Speaker 01:
With that, we'd ask for this court to reverse and revamp.

[00:34:34] Speaker 01:
Thank you.

[00:34:35] Speaker 04:
Thank you, both sides, for the helpful arguments.

[00:34:37] Speaker 04:
This case is submitted.

[00:34:42] Speaker 04:
And thank you for taking this case pro bono and doing a great job with it.