[00:00:08] Speaker 01: Good morning, Your Honors. May it please the Court, Michael Velchik for United States Defendants Appellants. I would like to reserve two minutes for a reply. [00:00:14] Speaker 04: You bet. [00:00:17] Speaker 01: In January 2025, during the Biden administration, CBP conducted a three-day operation that resulted in 78 arrests and stopping named plaintiffs. Significantly, plaintiffs do not allege that they have been stopped multiple times, nor do they allege that the government has repeatedly returned to the same locations as part of its enforcement operations. plaintiffs therefore fail to differentiate their concerns about a potential future injury from those risks associated with the 8 million other residents throughout the Eastern District of California. As Justice Kavanaugh explained in his concurrence in Perdomo, Lyons told us that standing for future injunctive relief does not exist merely because a plaintiff experiences a past harm and fears a future injury. [00:01:01] Speaker 01: Rather, like the plaintiffs in Lyons, like the plaintiffs in Perdomo, here, plaintiffs have no good basis to believe that they themselves will be stopped and subject to an unlawful stop in the future, and certainly no basis to believe that such a future unlawful stop is imminent. [00:01:17] Speaker 04: I'm going to stop you there. You go first. It's all right. [00:01:20] Speaker 04: I'm going to ask you to take those one at a time because I think Lyons and Perdomo are very, very different cases. So can we talk about Lyons first? Yes. Obvious ways to distinguish Lyons, which, of course, are in the briefing, so you won't be caught off guard. But let's just review those. You've indicated you think that the government's position is that Lyons is not distinguishable. So one difference between this case and Lyons is that the plaintiffs in this case don't have the ability to avoid, as in Lyons, avoid getting arrested and thereby avoid the alleged chokeholds. [00:01:53] Speaker 04: Another is that the use of force in Lyons was There wasn't a showing that it was an established policy, but here we have a finding by the district court of a custom or a pattern or practice. So could you speak to those things, please? [00:02:07] Speaker 01: Absolutely. [00:02:10] Speaker 04: Forgive me, there's one other point. Sorry. The other obvious, which I really should give it to you all at once. The other difference, of course, is that Lyons had one event, one very traumatic event. But in this case, we have a sweep. It involved many more people over a three-day period of time and then several indications in the record, as you appreciate. that the government would be back with more of the same. So could you address those points, please? [00:02:31] Speaker 01: And if I forget one, please let me know. [00:02:33] Speaker 04: Yes, I'll try to stay out of your way. [00:02:35] Speaker 01: So we fully acknowledge that there are some differences in Lions, and you've identified them. We still think that Lions controls. With respect to the first about how, you know, someone could avoid what might happen, I mean, first we would point out that at least Justice Kavanaugh and his concurrence did not find any of these faces. That's Perdomo. That's Perdomo. [00:02:53] Speaker 04: We're talking about Lions. [00:02:54] Speaker 01: Yes. I mean, we do acknowledge that that is a difference. they still have to establish a sufficient likelihood under Clapper that it's reasonably likely, and we don't think that they can do so. I do want to emphasize also that even to the extent that someone suffers a constitutional injury, such as being subject to an unlawful stop, I mean, there are other remedies, too. And so to the extent that individuals are subject to Title VIII proceedings, they can raise those defenses immediately. In Title VIII, they have back end review by this court. [00:03:20] Speaker 04: But, Counsel, can you stay on the question? Because I'm asking you to talk about you glommed on to Lyons right away. You invoked it. And I think it's really factually distinguishable. So it would help me. I'm only one of three. But if you could defend that position, that would be helpful to me. So that's what I'm looking for. Clapper is equally distinguishable in terms of a very speculative future harm. And that's far, far end of the spectrum from where we're at here. So I'm all ears. But if you could stay on the question. [00:03:47] Speaker 01: What I would like to best communicate this morning is that even if there are these subtle differences, the strongest or there are noted differences, the strongest commonality and why we think it controls turns on the undifferentiated risk. But the most important part to Lions from our perspective is that the risk that any individual might suffer this in the future is undifferentiated as opposed to everyone in the public at large. And our concern here is that at least based on the facts as they appear in the complaint and before their preliminary injunction, There's no reason to think that these particular plaintiffs are more or less likely to suffer. [00:04:22] Speaker 02: That's the point I want to focus on a minute because I want to understand the government's position on what this standard is sort of certainly impending, right? Is the government's position, and it seems like from your argument it might be, that you really do have to make an individualized showing that me as person X is going to have this experience before versus any level of a group threat, right? So you say in your brief that the plaintiffs are no more, they're not at risk more than any other individual in the geographic area subject to this injunction. [00:05:02] Speaker 02: And I don't understand that because we know from how this operation unfolded that it was targeted at a particular subset of the population. It wasn't targeted to the same degree to every single person living in this geographical area. And so if a person shows I'm part of the subset that is being targeted by this operation, aren't they in a different position than people who are not part of the subset? [00:05:26] Speaker 01: So two points. So first, when we emphasize the issue of recurrence is, I think, the term that appears in the case law. I mean, we're borrowing from the Ninth Circuit precedents that I think have focused on that analysis. I think in Hodgett and Stergens, it was dispositive and irreparable harm. But in a lot of the standing cases, all of the court's opinions focus on You know, are there any facts where at least someone was subject to a recurring injury? And I think that speaks to the likelihood that someone might be subject to this harm in the future. [00:05:51] Speaker 04: If you're going to stake out that position, then you're going to have to deal with our other authority that I think is much closer to being on point, the Melendez case and the LaDuke case. [00:06:02] Speaker 01: Yes. [00:06:03] Speaker 04: So those are warrantless searches of migrant housing, right, and then allegations that police in, I think, Phoenix— or stopping suspected migrants without probable cause. [00:06:17] Speaker 01: Yes. [00:06:18] Speaker 04: We found standing in those cases. [00:06:21] Speaker 01: So, yes, happy to address. With respect to Leduc, there were specific findings of the likelihood of recurrence. I think that was important. And I would also emphasize that it was geographically localized, that they were focused on specific housing in certain farming locations, that the government was continuing to return to the same places, and that increased the likelihood that someone might suffer future harm there. [00:06:42] Speaker 01: with respect to Melendez, I think that's a harder case for us. We, again, I don't want to pivot to Perdomo, but we do think that that signals where I think the Supreme Court's mind is. But even with respect to that, I mean, I would also point out that this was a three-day operation. It was concluded, I think, for at least a month since the complaint was filed, as opposed to, I think, in Melendez. I believe it was litigated over a course of five years. I think there was a lot more evidence and concerns that there were continuing operations ongoing. And another important distinction from my perspective is is that at least here the government is agreeing with everyone, with the district court and I think with plaintiffs, about what the appropriate policy and standards should be. [00:07:16] Speaker 01: We want to make sure that as important as it is to enforce our nation's immigration laws, we want to do so in a way that honors the Fourth Amendment, is consistent with the statutes and regulatory requirements. And our policies here have done that, unlike in Perdomo or other cases where there's questions about, you know, is the policy lawful or not, or even in Lyons, you know, is that something that the government really can do? Here, at least, we agree that we want to apply the Fourth Amendment as everyone agrees it should be understood. There was a brief three-day operation that is over. We have a new administration, two new secretaries. [00:07:47] Speaker 01: We currently do not have any interior enforcement operations. [00:07:49] Speaker 04: And yet you're strenuously objecting to the district court's injunctive relief that requires application of the Fourth Amendment, compliance with the Fourth Amendment. [00:07:59] Speaker 01: We agree with everyone about the appropriate standard for the Fourth Amendment. In general, we always oppose a court having an injunction hanging over the head of the federal government. I think this was discussed in Lyons. It discussed the separation of powers concerns, partly in horizontal but also vertical separation of powers. Justice Kavanaugh addresses this specific issue in a paragraph in his concurrence about judicial supervision. [00:08:20] Speaker 03: Can I ask just a question? [00:08:23] Speaker 03: Because I'm interested in the Supreme Court precedent. When was the last time that a Supreme Court majority relied on Lyons in a context similar to this. [00:08:35] Speaker 01: Certainly, Perdomo is the latest signal that I'm aware of. I don't have that at my fingertips. [00:08:40] Speaker 03: That wasn't a majority in the Supreme Court. [00:08:46] Speaker 01: We do think that the majority's decision to grant the state is informative to the court and instructive under Boyle, but I don't have a quick case. [00:08:53] Speaker 04: We don't have a reasoned analysis, is I think what you're both indicating. [00:08:56] Speaker 01: We don't have a reasoned analysis. The only comment that I would make on that other than referring to Boyle and Justice Gorsuch's concurrence as NIH is that, I mean, we do have the arguments that appeared before the court. And I do think it's instructive that a lot of the same arguments on standing that appear in this case also appeared by plaintiffs. [00:09:12] Speaker 02: But weren't there arguments other than standing? [00:09:14] Speaker 01: Yes. So logically. [00:09:15] Speaker 02: I mean, in terms of like, I get that we're supposed to sort of read the tea leaves in terms of the signals that the Supreme Court is giving. But if the Supreme Court is facing more than one argument and then doesn't give any reasons for why it did this or that, how are we supposed to know, like, which thing it was motivated by, right? Like, I don't know how to read those tea leaves. [00:09:34] Speaker 01: We're looking at the same thing. I fully understand that they had multiple issues. There are logical ways of divvying up the votes to suggest that some rested their decision on one as opposed to the other. I'm just pointing out that the first argument that the government was making, the principal argument that the Ninth Circuit had addressed, the argument that was front of briefing was standing. And so I'm not here to suggest that the Supreme Court's stay decision necessarily controls or binds this court. I do think it's important context, and I know the court's aware of that. [00:09:59] Speaker 03: We're doing kind of a mix and match. All right. [00:10:05] Speaker 03: But you're not directly challenging LeDuc as being the law of this circuit and controlling on us, are you? [00:10:16] Speaker 01: I mean, our position is that Justice Kavanaugh's reasoning and his concurrence is the best evidence of how lines in Article 3 apply to these patterns. We understand it's persuasive he spoke for himself. We do think that the state decision is instructive. Our position, though, is that we would still prevail under all Ninth Circuit case law as it exists. [00:10:32] Speaker 04: Justice Kavanaugh gave us more. We have some recent analysis from him, although it's at a very early stage. We don't know what the rest of the court was thinking. I agree with Judge Forrest on that, and that's where we are, left at that stage. But just as Kavanaugh was looking at and I think making really important observations about the very different injunctive relief that was granted in Perdomo and how it didn't really make sense, in that case where there's an injunction I think identified four different factors and the ruling was these factors, these particular factors alone or in combination, can't rise to the level of. [00:11:10] Speaker 04: And I think what he was suggesting there is that's an unworkable injunction. Right. That's not workable because law enforcement officers are always taking into account the circumstances and we can't know what else might be in play. And so on that basis alone, the Perdomo injunction seems to me to be very problematic and quite different from what we're looking at here. [00:11:29] Speaker 01: Can I speak to that? [00:11:31] Speaker 04: Sure. [00:11:32] Speaker 01: Fully acknowledge that there are independent bases. He gave discussions of both issues. I do, however, think that the discussion that you raised does cut in our favor in at least two respects. at least on the vagueness of the injunction point, the fact that this injunction is all the law, we can talk about that later, but specifically with respect to standing, I do think that there are material differences between this case and Perdomo that make this easier, and this is one of them. I mean, at least in Perdomo, the government had large-scale operations, 2,800 arrests. It specifically wanted to continue those operations, and it wanted to do so under its interpretation of the Fourth Amendment, which differed from what the district court wanted, and it differed from the plaintiffs. [00:12:07] Speaker 01: Here... separate apart from the scale, the fact that the operation is over. I mean, our view is that, no, we all agree on what the policy should be. We are recommitting to that. I can inform the court that we have completed training for all 900-some agents. [00:12:20] Speaker 04: We have sent out- I'm going to stop you there because you're going outside the record, but we are going to circle it back about the status quo. That will be helpful in a minute. [00:12:27] Speaker 01: So go ahead. But to the extent that the government does not object to what we think should be the correct policy, I think that undercuts the suggestion that plaintiffs have a high likelihood of suffering the specific type of deprivation that they might suffer in the future. [00:12:41] Speaker 04: Well, then we're going to go off to voluntary cessation, I think, if we get into that. So you wanted to save some time for rebuttal? [00:12:48] Speaker 01: I'd like to save two minutes, but I'm happy to answer any questions. Oh, okay. [00:12:51] Speaker 02: So I have a couple more questions before you sit down. So I want to come back to a question that I asked before to make sure I understand what the government's position is. [00:12:58] Speaker 02: Is the government's position that you can meet the standard for standing for prospective relief based on a showing of a showing of imminence to a subset as opposed to a showing of imminence to just one individual? [00:13:12] Speaker 02: Meaning, like, if I show that I'm a member of a subset and the subset of people has an imminent risk, then I could meet standing. Does the government agree with that sort of generalized theory or no? [00:13:25] Speaker 01: We think that standing is not dispensed and gross. Every individual plaintiff needs to show standing with respect to himself. If there were a recurrence, I think that would be the best evidence that that individual suffers a similar injury. But my understanding of the court's precedence, it does focus on whether each individual, and whether that's a single person, whether that's a group, whether that's associational standing, or whether it's class action, at least someone needs to be able to demonstrate that they have suffered an injury, in fact, that's sufficiently concrete, particularized, and reasonably likely under Lyons and Clapper. [00:13:56] Speaker 02: So you would think here to meet standing, you're going to have to show this sort of repetitive stopping of a particular person is repetitively stopped. or that there are repetitive stops in a particular location where the particular person is located? And something like that is the only way to do it? [00:14:14] Speaker 01: I think it might be slightly more nuanced. So I do think that each individual plaintiff needs to demonstrate a sufficient likelihood of future harm. I think the fact that they can't identify anyone, whether it's a named plaintiff or someone else who has even been stopped multiple times, and that the locations of these activities, as they appear in their complaint, and in their declarations, which seem to vary from driving on cities, highways, from agricultural locations, the fact that they reference potential future enforcement actions in Sacramento, which is 300 miles away, we do think that their specific allegations are insufficient to suggest that anyone, whether it's the named plaintiffs or the organizational plaintiffs, has injury, in fact, sufficient to confer standing based on lines. [00:14:55] Speaker 02: Okay. Two of three questions, then, is... [00:14:58] Speaker 02: what is the government's position on what use we can make of these statements made by government officials about the likelihood or possibility of future operations? [00:15:09] Speaker 01: I guess three reactions to that. First, the best evidence of the government's positions are the official statements that the government makes in our musters, in our court briefings, rather than social media posts. And I would refer the court to, I believe, Hawaii and Mandel are the typical precedents that describe what weight should be given to those statements. Second, even taking all of those social media statements at face value, all of them reference potential future operations to potentially enforce our nation's immigration laws, but none of them makes any suggestions that they want to do so in a way that violates the Fourth Amendment statutory regulatory statement. [00:15:43] Speaker 01: So we don't think that that speaks to any intent or likelihood of future violations of the Fourth Amendment. [00:15:48] Speaker 04: Would you agree that it's fair to say that it speaks of an intent by the agency to do more of the same? It doesn't say they're going to do it differently. [00:15:57] Speaker 01: No, I would strongly reject that. Why? Because I think unlike some other cases, and maybe this circles back to the point that Your Honor raised originally, there is no official policy that people are challenging as unconstitutional. To the extent that there are allegations, we think that people have phrased it in a pattern or practice as opposed to the government's position that we will conduct searches in a way that violates the Fourth Amendment. We dispute specific allegations as to specific searches. We have recommitted and clarified our position about how the Fourth Amendment should operate. [00:16:26] Speaker 01: But I think all of that, I think, informs that the government is entitled to a presumption of regularity. To the extent that we choose to engage in future enforcement operations, we're committed to doing so in a way that respects the Fourth Amendment. And I read those statements in that context. [00:16:38] Speaker 04: So what do we do with the finding of fact that the district court made about the pattern of practice? You know what this evidence is here. Their argument is quite contrary to Perdomo. Their argument is that rather than looking at four specific factors, that what the agent said in this case is incorrect. [00:16:52] Speaker 04: they just looked at basically a racial profiling. [00:16:56] Speaker 01: Yes. [00:16:57] Speaker 04: And didn't consider any of the surrounding circumstances. In fact, batted ID out of the hands of people who offered it and so on and so forth. I know you know the facts very well. So just quickly, because I want to get to Judge Forrest's other question, but could you respond to that? [00:17:09] Speaker 01: Yeah, I mean, we do think those are allegations of inconsistent enforcement and at most a pattern in practice, but we still don't think that that is a policy, which I do think is a way to distinguish other cases. [00:17:18] Speaker 02: I appreciate that distinction. Go right ahead. Thank you. Last question is, I want to be clear on why the government thinks that Melendrez and LaDuke are distinguishable. So what is the thing about those cases that makes them not applicable here? [00:17:33] Speaker 01: LaDuke, I would emphasize a specific court finding of likelihood of recurrence, and I believe there may have been multiple individual stop multiple times. We also emphasize that it was localized to the government's plans to conduct specific operations at the same places that would make it more likely for this group of plaintiffs. to be subject to the same types of deprivations in the future. We also emphasize that the government there had policies where individuals disagreed whether they were lawful. Here we think that we have a lawful policy going forward. [00:18:03] Speaker 01: At most there would be disagreements about whether that policy is being, you know, appropriately enforced by the relevant actors. [00:18:10] Speaker 01: And then fourth, I would also, I think that the timeframe is, I think, a relevant factor. I believe in both of those cases, I think they went on for over five years. There was a lot of data. People had raised the problem. It had not been addressed. In order to address, I believe it was five years of alleged government misconduct, the court did take, you know, a decision to, you know, find standing and give the relief in those cases. Whereas here, and I would emphasize that this was a three-day operation, it concluded, it has been over even for a month before the complaint started. [00:18:40] Speaker 01: And so I think those are a couple of ways that we would distinguish it separate apart from the predominantly development. [00:18:46] Speaker 04: Did you have another question, Judge Forrest? No. Okay. We've taken you way over your time. For planning purposes, when you come back, you're three and a half minutes over now. For planning purposes, we'll put two minutes on the clock for your rebuttal. [00:18:56] Speaker 01: Understood. Thank you, Your Honor. [00:18:57] Speaker 04: You're welcome. We'll hear from opposing counsel, please. [00:19:10] Speaker 00: Thank you, Your Honors. May it please the Court, Brie Bernwanger for the plaintiffs. [00:19:16] Speaker 00: The plaintiffs agree that in this case, each plaintiff needs to demonstrate that they have standing to seek prospective relief. They have done so here because they have shown that there is a realistic threat that the injuries they have already experienced will recur. [00:19:33] Speaker 00: And they have shown that threat based on concrete evidence that substantiates their fears. This record is full of it. [00:19:42] Speaker 00: The government claims as a litigation position that this is a case about inconsistent enforcement, but the record shows nothing but consistency in the defendant's conduct. [00:19:55] Speaker 00: Starting with the fact that all of the plaintiffs were harmed in essentially an identical way, and the government does not dispute that the stops and arrests that the plaintiffs experienced were violated their constitutional and statutory rights. [00:20:10] Speaker 04: I think that's right. His argument is different as I understand it. And that is that he's saying, you know, it's almost a ratio, right? A likelihood. What he's saying is that perhaps there was rogue enforcement, but there wasn't an official policy. And I hear him saying then that we have to look at the standing on a plaintiff by plaintiff basis. And each one of them has to establish the likelihood of future injury. [00:20:37] Speaker 00: Well, I agree with the second part of what Your Honor just said and what my colleague said. [00:20:42] Speaker 04: Well, he's just saying it's just too remote. He's saying it's too speculative. Could you speak to that? [00:20:46] Speaker 00: Yes, Your Honor. This is not speculative. And there are really, I think, five categories of evidence in the record that provide that concrete evidence that substantiates the plaintiff's fears that they will be harmed again. And I'll note before I get into each that the Supreme Court has really rejected the government's view here that just because A lot of people could be harmed. It's harder for individuals to show that they have demonstrated a concrete and realistic threat. In scrap, the Supreme Court said that if it adopted that type of analysis, then the most widespread harms would go unaddressed. [00:21:23] Speaker 00: I don't think that's what he's arguing. [00:21:25] Speaker 04: I don't think he's saying just because a lot of people are at risk here that this is not a problem. I think he's saying that you have to look at the number of people who were arrested and the number of people, you know, sort of in the area, and that it still becomes very speculative that any individual would be, you know, subject to this type of unlawful conduct in the future. [00:21:44] Speaker 00: Well, let's look at the record on defendants' conduct here. So here, the plaintiffs have already been harmed. That is evidence that they will be harmed again. They've been harmed in identical ways. And the class members whose declarations detail the way that they, too, were pulled over by agents who had no knowledge of who they were or their immigration status and arrested without any further evaluation of their likelihood of escape or a warrant, those declarations are all consistent and show a consistency across the defendant's practice. [00:22:18] Speaker 00: These were not isolated incidents. [00:22:20] Speaker 04: And the defendants... Can I ask you, forgive me, I know I'm interrupting, but on that point, is there anything in the record that will allow us to... [00:22:28] Speaker 04: to infer that there perhaps were a handful of rogue agents? Any description of the people? I think they were masked, and so it's very difficult, but I'm just wondering if there's anything that would allow us to make that inference. [00:22:39] Speaker 00: No, Your Honor. There's no evidence that this was an operation of rogue agents. We know that there were 60 agents roaming. We're not communicating. [00:22:49] Speaker 04: What I'm suggesting is, is it possible from this record to infer that the misconduct, that's my word, that the violations were maybe committed by a small subset of the 60 agents? [00:23:00] Speaker 00: No, Your Honor. [00:23:03] Speaker 00: And we know from the defendants' own records, which they didn't put into evidence, but the plaintiffs were able to obtain and enter into evidence, that in 77 out of 78 of the arrests that the defendants made, their agents had no knowledge of a person's immigration status before the initial stop. That shows staggering consistency across their practices here, and it certainly provided a sufficient record for the district court to make its findings that the defendant's conduct amounts to an unlawful practice. [00:23:39] Speaker 02: I'm going to switch gears a little bit. I'm concerned about the district court not having actually done a standing analysis for the prospective relief, and why isn't that legal error? [00:23:49] Speaker 00: It's not legal error because the government didn't raise the issue. But it's standing. It's jurisdictional. It doesn't matter. It's standing, and it means that this court certainly can and should take on the issue on its own. We certainly don't argue that this court doesn't have jurisdiction. We think this court should decide the issue here. But the factual findings that the district court made as to the merits and as to irreparable harm are really – [00:24:17] Speaker 02: I mean, that's the problem though, because the district court doesn't actually recite or indicate in any way in its decision that it's thinking about this standing requirement for prospective relief. And unlike Melendrez doesn't actually make specific findings related to that standard. So we don't have the, I mean, we have findings related to other things that are sort of adjacent or relevant to the question, but not a finding specific to that governing standard. And I, I, It sort of seems like we're missing a link. [00:24:51] Speaker 00: I would have two responses to that, Your Honor. First, the district court did make a factual finding that there is an ongoing practice that violates the plaintiff's constitutional and statutory rights. [00:25:03] Speaker 02: She found that on page 77 of the my understanding of her decision is that she'd never made a finding of sufficient likelihood of future injury for these plaintiffs. And that is a difference from Melendrez, where the district court did make that specific finding. So am I missing something in her decision that you want me to make sure I look at again? Or do you agree with me that she did not make a finding specific to that point of these people's likelihood of future injury? [00:25:30] Speaker 00: We think that she did make that finding in the irreparable injury analysis, but we agree that there wasn't prospective standing analysis. But what matters here is that the record is unrebutted and the district court's factual conclusions and legal conclusions are have really not been challenged by the defendants at any stage. [00:25:51] Speaker 03: Can you help me with that? [00:25:53] Speaker 03: Can you help me with what the findings with respect to what the plaintiffs were doing, their conduct, and the extent to which it's repetitive? Did the findings go to that? [00:26:07] Speaker 00: Well, Your Honor, so the district court essentially credited the facts that the plaintiffs had put in the record because, as she put it, there was no substantive conflict there. The defendants did not enter any rebuttal evidence. They entered no evidence, for example, asserting that there were lawful bases for their stops, asserting that they did conduct. [00:26:29] Speaker 03: But my question went to what the plaintiffs were doing, which is relevant in Lyon. And it has to be relevant to the question of to what extent Lyon applies. [00:26:40] Speaker 00: Absolutely, Your Honor. The unrebutted record is that the plaintiffs were stopped and arrested while they were going about their daily lives. The record is clear that the plaintiffs were not violating any laws when they were stopped. That is the key distinguishing factor from Lyons that, as you pointed out, Judge Kristen, the government really doesn't contend with here. [00:27:01] Speaker 03: So it says that this is their daily lives? Is that what the district court said and what was pledged? [00:27:09] Speaker 00: Well, she describes what each of the plaintiffs was doing when they were stopped. They were driving to the doctor. That's plaintiff Yolanda Aguilera Martinez. A couple of them were standing in a Home Depot parking lot. [00:27:22] Speaker 00: One plaintiff was in his car leaving a local store and before Border Patrol agents just blocked him in. So each plaintiff, it's unrebutted that each plaintiff was going about their daily lives, not violating any law when the defendant stopped them. [00:27:37] Speaker 03: Nature of the conduct was what was done every day. [00:27:41] Speaker 00: That's exactly right. And that's exactly why the plaintiffs can't avoid future stops. So going back sort of to this first question of why the plaintiffs, why do these people have standing? The plaintiffs in this case have standing because they've obviously already been targeted by defendants on lawful practices. And because They are standing in harm's way when they go about their daily lives. Let's take Alicia, who's a member of the United Farm Workers, as an example. [00:28:13] Speaker 00: She, her husband, and her brother-in-law were stopped on their way home from work in a citrus field along Highway 99. The government takes a lot of stock in plaintiffs only being stopped once, and in their view, the defendant's not returning to the same place. [00:28:30] Speaker 00: On page 287 of the supplemental excerpts of record, there is news reporting that's unrebutted that the defendants returned to Highway 99, which cuts through the Central Valley's agricultural heart. [00:28:42] Speaker 04: That's where they stopped Alicia. Some of them seems to me are going to have trouble because they were stopped. They were held for three days in a three-day operation. Some of them were detained the whole time for the remainder of the operation. So there does seem to be that problem. But could you go back to Judge Schroeder's question about their day-to-day activities? What did the district court say about... these findings? I'm sorry, did she make findings about their repetitive conduct? [00:29:06] Speaker 00: The district court did not make those findings. And it's probably because the government didn't raise prospective standing. But she did find that there was no conflict in the facts. So there's just no basis on which this court could hold that the plaintiff's declarations are, for example, not credible. The district court did credit those declarations. And There's no basis for a finding of clear error there. All of this evidence was unrebutted. I think, again and again, we're sort of running into the issue where the government put no evidence in the record. [00:29:40] Speaker 00: The government put no evidence that its agents were actually conducting the threshold suspicion. [00:29:46] Speaker 04: We appreciate that, but we're looking for the district court's findings. [00:29:50] Speaker 02: Go ahead. I guess to circle back to the question I was trying to ask, I mean, as I indicated when Governments Council was arguing, I find it very difficult to read the tea leaves here in terms of the Perdomo case and sort of like what to make of that. But what I don't find difficult is the message that the Supreme Court seems to be giving about like when we're talking about these kinds of injunctions against executive policy, like we're paying attention to those very carefully as the Supreme Court. Right. Like we want those to be done with a lot of circumspection. [00:30:22] Speaker 02: And so, again, I'm looking at our Melendrez case, and there it says, quote, the district court expressly found that the plaintiffs are sufficiently likely to be seized in violation of the Fourth Amendment. We don't have that finding here. So, yes, we do have clear findings about the individual experiences of these plaintiffs that were sympathetic, no doubt. But I don't have the finding that's relevant to this legal standard. And if I have a Supreme Court that is very carefully watching this area and telling us that we need to be doing this close, you know, paying very close attention to the legal requirements, it seems to me that you're arguing we should sort of piece together something that the district court didn't do. [00:31:01] Speaker 02: And I'm not sure why we should be doing that in this space. [00:31:05] Speaker 00: I'll address Melindra's first, Your Honor. And what we're arguing is that this court should find that the plaintiffs had standing to see prospective relief. [00:31:13] Speaker 02: But you're asking us to make a finding? Because the district court didn't make that finding. You want us to do it. [00:31:18] Speaker 00: not the factual finding, Your Honor, to reach that legal conclusion based on the unrebutted facts that are in the record and the factual findings that the district court did make. And Your Honor is correct, of course, that the finding on irreparable injury was certainly one of the reasons that this court affirmed in Melendrez. But it wasn't the only reason. In Melendrez, what the court said was one of the ways a plaintiff can show he's realistically threatened by a is when the harm suffered is part of a pattern of officially sanctioned behavior. [00:31:53] Speaker 00: We're certainly not arguing that it's a default decision, find a pattern automatically at their standing. We think that it's a fact-specific analysis, but the findings necessary for this court to arrive at that legal conclusion are in the district court's decision. She found that there is a practice of violating the plaintiff's Fourth Amendment rights and rights under 8 U.S.C. 1357. [00:32:18] Speaker 00: And she found that that practice is likely to continue based on the defendant's own unrebutted statements. [00:32:25] Speaker 04: Can I ask you a related, oh, did I cut you off? I'm sorry. Go ahead. [00:32:28] Speaker 00: Go ahead, Your Honor. [00:32:29] Speaker 04: Well, I'm trying to follow up on this. There's a pending motion in the district court filed by the government, a motion for summary judgment, I believe. And it looks like the docket entry we have indicates that the district court has stayed the consideration of the standing arguments. but has not stayed the mootness arguments and consideration of the mootness arguments. I don't think there has been oral argument as far as I can tell, but this is sort of burbling up. So this sort of circles back into Judge Forrest's question. [00:33:03] Speaker 04: I don't think they're the express findings. I appreciate that that's because the government didn't raise standing. I don't know that she didn't, under our case law, satisfy herself that she had standing, in particular because of Melinda's and the Duke, but What about the status of it seems like the district court's waiting for us? [00:33:22] Speaker 00: I think Your Honor is referring to a motion to dismiss that the government filed. And the government followed up that motion with a motion to stay all of the proceedings in the case. Is it a 12B6 motion? [00:33:32] Speaker 04: It was a 12B6 motion. [00:33:33] Speaker 00: Okay. Okay. [00:33:36] Speaker 00: I believe they also included jurisdictional arguments that are not an issue here. [00:33:40] Speaker 04: Okay, but didn't the district court enter an order indicating that she was going to wait for us to make a rule on standing and that she was going to go forward with the rest, including, I think, a mootness argument. Is that right? [00:33:51] Speaker 00: The district court issued a partial stay order on the government's motion on a couple of the issues just in their motion to dismiss. [00:33:59] Speaker 04: Was one of them standing? [00:34:00] Speaker 00: One of them was standing. [00:34:01] Speaker 04: So she's waiting for us. [00:34:04] Speaker 00: I mean, the government's argument was the district court was in a bind here. I think her order says this. [00:34:10] Speaker 04: This is not a trick question. I think it says that, didn't it? Didn't she say she was going to wait to rule on this standing issue pending the outcome of this appeal? [00:34:17] Speaker 00: She did because the government told her she didn't have jurisdiction over the issues that are before this court. So she was in a bind. [00:34:24] Speaker 04: Well, I'm not criticizing anybody. I'm trying to figure out what the status quo is. So thank you for that. [00:34:28] Speaker 00: That's right. Go right ahead. That's right. [00:34:31] Speaker 00: Briefly, just in response to the government's argument that there are not statements affirming sort of the unlawful conduct of the operations, that's just incorrect. I would point the court in particular to the El Centro Border Patrol sector's response through their authorized Facebook account. Here in Bakersfield, you guys forgot to raid some people, a commenter said. We plan on coming back. The plaintiffs live in Bakersfield and around Kern County. UFW members live throughout the district. [00:35:03] Speaker 00: The plaintiffs cannot avoid driving down rural roads like Highway 99 to go to work. Alicia, UFW member, cannot avoid that. The defendant's operations have already targeted the plaintiffs in those locations. They have consistently targeted other class members in the same places. That evidence is unrebutted. They have vowed to repeat the operation they already conducted and come back. That is all unrebutted in the record. There is no basis on which to find that this was an inconsistent operation. [00:35:36] Speaker 00: There's no basis on which to find that the government has conducted any stops lawfully. They put no evidence of that into the record. So to the extent that the court in Lyons was concerned about, is the future stop going to be unlawful? Here, We know that it is. [00:35:54] Speaker 04: So I think we've heard your argument. We've covered the briefing very thoroughly. That clock is counting back up now. [00:36:00] Speaker 00: I see. [00:36:00] Speaker 04: You're well over time. Thank you very much, Your Honor. Do you want to wrap up, please? Is there anything else you need to cover? [00:36:05] Speaker 00: No, Your Honor. [00:36:05] Speaker 04: Okay. Thank you for your argument. We'll hear from opposing counsel, please. [00:36:15] Speaker 01: The government's prepared to waive reply. [00:36:18] Speaker 04: All right. Did you have anything you wanted to say regarding my inquiry about the status quo and the status of this, I guess it's a 12B6 motion? [00:36:26] Speaker 04: Is it your read that the district court is waiting for us to rule on standing? [00:36:29] Speaker 01: I believe that's correct. Refer to the docket for sort of what's the best information, but yes. [00:36:34] Speaker 04: Okay. Nothing else then? All right. Well, thank you both very much for your very spirited advocacy. It's very helpful and your excellent briefing. We appreciate it very much. Very interesting case. Yes. We'll take this matter under advisement. and go on to the next. Last case on the calendar for the day, please.