[00:00:00] Speaker 01:
Case number 22-5221.

[00:00:02] Speaker 01:
Elizabeth Schacht, MD, at balance, versus Stephen L. Liberman in his official capacity as Acting Principal Undersecretary for Health, Department of Veterans Affairs, Veterans Health Administration, et al.

[00:00:15] Speaker 01:
Mr. Arnold, at balance.

[00:00:16] Speaker 01:
Mr. Brewer, for the police.

[00:00:19] Speaker 04:
Good morning, Mr. Arnold.

[00:00:21] Speaker 04:
Good morning, and it may please the court.

[00:00:22] Speaker 04:
Brandon Arnold for a follow-up.

[00:00:24] Speaker 04:
Dr. Elizabeth Schacht, I'd like to reserve three minutes for rebuttal.

[00:00:29] Speaker 04:
The district court erred here because it upheld an action by the VA's disciplinary appeals board based on reasons that the board only supplied years after it took the action.

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It's a bedrock principle of administrative law that the agency has to provide a reason when it acts and that the court can only uphold an agency's action based on the reason supplied at that time.

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The board here did not do that.

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In the original administrative record, there is no reason whatsoever given for why the board summarily excluded a large swath of the evidence submitted by my client.

[00:01:09] Speaker 02:
Mr. Arnold, was a remand even necessary here in this case?

[00:01:14] Speaker 02:
I mean, if you compare administrative proceedings to district court proceedings, there are often evidentiary rulings without any statement in the record about why that ruling was made.

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And if there's no objection made at the time, then an appeals court can uphold the evidentiary ruling for any reason that's apparent in the record.

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So the district judge here was being very conscientious in terms of remanding for further explanation.

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But I mean, I don't even see that a remand was necessary in this case.

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And if there had been no remand, then all these arguments about the regents case, I think, just wouldn't apply.

[00:01:50] Speaker 04:
So I think the key distinction here is that we're dealing with an agency and not a trial court.

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As you say, if this was in the trial court, the judgment could be upheld for any reason, including reasons not given by the court below.

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as long as it fit with the record.

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But trial courts aren't bound by chennery.

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And so the issue here.

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Evidentiary ruling isn't a final agency action.

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I mean, it's reviewable, of course, because it's now part of a final agency action.

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But I mean, I think your argument sort of relies on making this evidentiary ruling some kind of standalone agency action to which all of these doctrines apply.

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And I'm just not sure that an agency's evidentiary ruling should be viewed that way.

[00:02:35] Speaker 04:
So I believe even in the evidentiary rulings, the agency needs to provide a reason why it's excluding evidence.

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And often that reason can be quite terse.

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It need not provide a lengthy reason.

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If, for example, the agency had stood up when this evidence was admitted and said, we object on basis because it's untimely, if the chair said sustained, that would be a sufficient reason.

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But that's not what happened here.

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So in this case, the pellet submitted the evidence.

[00:03:04] Speaker 05:
What happened here is that there was a kind of deadlines that were set and then after a deadline both sides tried to submit evidence after the deadline and both sides were rejected.

[00:03:22] Speaker 05:
So why can't we just discern from the record that the reason that it was rejected was because it was after the deadline.

[00:03:30] Speaker 04:
So let me back up on the deadline.

[00:03:33] Speaker 04:
I don't think it is clear that there was fair notice of a deadline in the administrative record.

[00:03:37] Speaker 04:
The scheduling order that was put out by the board set a deadline for motions and other requests, but nowhere in that scheduling order.

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Arguing that there's not notice is different than, I mean, that doesn't meet the hypothetical, which is that if the agency, if the body

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believed that it had set a deadline that was an operative deadline and then these two submissions came after that deadline and it rejected him for that reason, then that's the reason.

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I grant that if the agency had set clear deadline and given the party's fair notice of that deadline.

[00:04:20] Speaker 06:
What was unclear about it?

[00:04:23] Speaker 04:
It was unclear because it never mentioned exhibits at all.

[00:04:27] Speaker 06:
All it said was requests, right?

[00:04:30] Speaker 06:
And when your client submitted the 200 and some pages, how did your client characterize that?

[00:04:39] Speaker 04:
So she submitted exhibits and in the cover email, her counsel said that he requested that the board admit.

[00:04:47] Speaker 04:
It was a request, right?

[00:04:49] Speaker 06:
So what's unclear about that?

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All requests have to be in by such and such a date.

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And the 200 and some pages says, here's our request.

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The only problem is it's a month late.

[00:05:04] Speaker 04:
Respectfully, Your Honor, that's not how clear the scheduling order was.

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It said motions or other requests.

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There's no mention at all of exhibits.

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And the only place evidently submissions are mentioned at all in the scheduling order

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is the state that evidence can be introduced at the hearing itself.

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So after the evidence was excluded, counsel for appellant gave a proffer as to why the evidence was relevant and should be admitted.

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He did not formally use the word object, but he provided a rationale.

[00:05:45] Speaker 06:
He asked the board for an explanation.

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He did not, your honor.

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And that would be fatal if he were in a trial court.

[00:05:54] Speaker 06:
Well, it wouldn't bring it up on appeal if he never even asked for a clarification.

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So that raises the question that my colleague mentioned that why should an administrative board composed of doctors be held to a higher standard than a U.S.

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district judge would have been?

[00:06:21] Speaker 04:
Well, the board, its only standard is to provide a rationale, which it did not do.

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It didn't ask for.

[00:06:30] Speaker 04:
It's correct that appellant's counsel did not specifically request a rationale when the evidence was excluded, but submit that it was not his duty to ask for one.

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The board took action without ever explaining itself.

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It's the board's duty to explain its actions, not counsel's duty to force an explanation from the board.

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And going back to the evidence- That would create a body of law that's totally foreign to the way trials are handled.

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I think not only in the federal district courts, but also in the state trial courts.

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So I don't disagree that the rules are different, given that we're an administrative agency and not a trial court.

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I mean, to follow up on Judge Randolph's question, in the trial, oftentimes the lawyer who objects to evidence just says objection and doesn't even

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say, hearsay, irrelevance, or asked and answered, or anything else.

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They just say objection, and the judge says sustained.

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What is the reasoning there that we have on appeal to review?

[00:07:43] Speaker 04:
Well, the appeal standard allows more leniency because the trial court decision can be upheld on any reason supported by the record.

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It doesn't matter.

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The district court didn't provide a reason at the time.

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But again, we're not dealing with the trial court here.

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We're dealing with an agency that has to provide a reason.

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It doesn't have to be a long reason.

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One word could be sufficient.

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But it has to say something.

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And it's telling here that when the evidence was sought to be admitted,

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The agency responded by objecting to some, but not all of it.

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What is your best case for the agency having to give a reason when it excludes evidence in the course of an adjudicatory proceeding?

[00:08:38] Speaker 04:
So I don't have a case that speaks to that directly.

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I am reasoning from regents and from this court's decision and Citizens United.

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And then the court has a body of case law making clear that evidence can be excluded based on a deadline, so long as the administrative agency provides fair notice of that deadline.

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And I think the case law, the General Electric's case, makes clear

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that one thing to consider when asking whether fair notice had been given is whether other components of the same agency understood the rule differently.

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And here you have the VA, which is a repeat player in these adjudications, that didn't understand evidence to be untimely.

[00:09:23] Speaker 04:
The VA sought to admit evidence on the exact same date without any recognition that it was untimely.

[00:09:29] Speaker 05:
And when the board itself... What do you mean without any recognition that it was untimely?

[00:09:34] Speaker 05:
Where is it in the record that they didn't think that it was untimely?

[00:09:38] Speaker 04:
There's nothing in their submission.

[00:09:40] Speaker 04:
Just because they submitted it?

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And they didn't say, this is untimely, but we're seeking leave to file.

[00:09:46] Speaker 04:
There's nothing in the submission that makes it clear.

[00:09:48] Speaker 05:
The lawyers file stuff late every day.

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And it's not because they don't know that there is a deadline.

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They just, you know, seek the grace of the court.

[00:09:59] Speaker 04:
Right.

[00:09:59] Speaker 04:
Normally lawyers seek leave from the court to make late submissions.

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Here there's no recognition by the agency that we're filing something late and we're requesting leave.

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And in the pre-hearing conference that the board held, they walked through various exhibits that had been attached to motions and admitted the exhibits that were attached to motions.

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even though only one of those submissions was filed before the October 7th deadline, they admit seven or eight different pieces of evidence, and almost all of them come after that deadline.

[00:10:33] Speaker 04:
There's not one word in the scheduling conference that says, we understand that almost everything we're admitting here is late, but we say it's not too late.

[00:10:43] Speaker 04:
This is okay, but not too, too late.

[00:10:46] Speaker 05:
But that argument wasn't made in the agency proceedings.

[00:10:51] Speaker 04:
right?

[00:10:54] Speaker 04:
The argument wasn't made in the agency proceedings because the evidence wasn't excluded until late in the process.

[00:10:59] Speaker 04:
There was never a cause to say we're challenging the deadline because the deadline was never articulated.

[00:11:07] Speaker 04:
At no point did the board say we're excluding this evidence because it's too late.

[00:11:12] Speaker 05:
All I'm saying is that council never said in the agency proceedings

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board you have acted inconsistently, inconsistently with respect to what evidence you're allowing in and what evidence you're not based on, you know, deadline, right?

[00:11:33] Speaker 04:
I agree.

[00:11:34] Speaker 04:
The council never said that.

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But the reason why council never said that is he didn't have reason to think the evidence was being excluded based on a deadline.

[00:11:43] Speaker 04:
All of this.

[00:11:44] Speaker 02:
No, I mean, there was no explanation given.

[00:11:46] Speaker 02:
So why not ask for clarification?

[00:11:49] Speaker 04:
I think it would have been cleaner had he asked for clarification but but it is the board's duty.

[00:11:54] Speaker 02:
What kind of I mean what sort of rule with this be that every time in a in a relatively informal agency adjudication the the board or the adjudicator has to.

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on the record, explain every, you know, interlocutory, you know, decision along the way.

[00:12:13] Speaker 02:
And if not, then it has to be remanded to the agency.

[00:12:16] Speaker 02:
I mean, how could that be a workable rule?

[00:12:20] Speaker 02:
I mean, there's no case saying that.

[00:12:22] Speaker 02:
And I think probably for good reason, because, I mean, it just seems wholly inconsistent with the way agencies operate.

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And it's also inconsistent with the way we review district court decisions.

[00:12:34] Speaker 04:
So I don't think it would be an unworkable rule.

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And the reason why I don't think it would be unworkable is that many of the logistical sorts of matters that adjudicators would handle are committed to agency discretion by law.

[00:12:47] Speaker 04:
When the adjudicator said the hearing is going to be on Monday and not Tuesday, that's not going to be something that requires an explanation.

[00:12:55] Speaker 04:
That's a matter of agency discretion.

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And for many others, any error is going to be harmless.

[00:13:02] Speaker 04:
The only error here is harmless.

[00:13:04] Speaker 04:
I mean, I'm happy to discuss harmless error.

[00:13:07] Speaker 04:
I don't think the error here is harmless.

[00:13:09] Speaker 04:
But the point here is that there's a relatively small set of cases where you're going to have an exclusion of important evidence and the board is not going to give any reason whatsoever.

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If there was a one, if the board said excluded late,

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That may satisfy the reasons problem.

[00:13:28] Speaker 04:
We may still be here arguing that the reason is arbitrary and capricious, but it wouldn't be a reasons problem.

[00:13:33] Speaker 02:
Why isn't the burden, though, on the party before the agency to ask for a reason?

[00:13:36] Speaker 02:
Because on these sorts of preliminary matters, if they say, OK, we exclude this evidence and nobody challenges it, nobody asks for an explanation, perhaps just obvious to the parties why it was excluded because of untimeliness or irrelevance or whatever the parties assumed.

[00:13:53] Speaker 04:
I don't think it should be the burden of

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the person in agency proceedings to have to force the agency to explain its rationale.

[00:14:02] Speaker 04:
And this case is particularly telling because while counsel did not stand up and say, what is your reason?

[00:14:07] Speaker 04:
He gave a lengthy explanation of why the evidence should be admitted.

[00:14:12] Speaker 04:
And the board did not say, we disagree with you, or it doesn't matter, it's untimely.

[00:14:18] Speaker 04:
The only response from the board was noted.

[00:14:21] Speaker 04:
And so council was left unclear as to why the evidence was excluded and whether there was something that could be fixed.

[00:14:31] Speaker 04:
But the board made clear that they didn't want to hear about it.

[00:14:33] Speaker 04:
I don't think it should be on council to have to affirmatively ask the board, you've made your ruling now, please explain it even though I've told you why admittance is proper.

[00:14:42] Speaker 04:
On harmless error,

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I don't think the exclusion here is harmless, and I think it's most clear when looking at the penalty determination.

[00:14:55] Speaker 04:
The core of the board's penalty analysis was to determine that even though Dr. Schott had her medical decisions had been validated, and even though the board determined that she could be successful at another hospital, it said, we can't have you come back to this hospital because you created a toxic environment at the hospital based on communications issues that went back far before fall 2017.

[00:15:23] Speaker 04:
The evidence that was excluded would have gone directly to the core of those findings.

[00:15:28] Speaker 04:
So Dr. Schott sought to admit a report from the VA to Congress that investigated this hospital in particular and found that the problems at the hospital were caused by years of systemic mismanagement, not any one individual, as the board found.

[00:15:43] Speaker 04:
Dr. Schott also sought to admit her performance reviews from prior years showing that she met the qualifications on communication in every year prior to 2017, which rebuts the board's idea that these problems stretched long into the past.

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And Dr. Schott also sought to admit evidence about a comparator doctor at the same hospital who is accused of similar communication misconduct and yet was given a substantially lower penalty.

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The board did not consider any of that evidence in finding that she was the core of the problem.

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And because she was the core and the ultimate cause of the problem, she had to be removed.

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Had that evidence been considered, the board well could have found a different outcome.

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So I think there is prejudice here, and this is not a particularly close case when it comes to prejudice.

[00:16:38] Speaker 05:
I mean, your burden

[00:16:43] Speaker 05:
The way that the burden has been articulated under 706 is similar to the Codiacas standard of harmless error that applies, like in non-constitutional harmless error that would apply in reviewing a civil or criminal trial.

[00:17:03] Speaker 05:
So it's your burden, and you have to establish

[00:17:13] Speaker 05:
some sort of a likelihood that there would have been a different outcome.

[00:17:21] Speaker 05:
Not just that this evidence was relevant, but that there would have been a different outcome because there's no point in remanding if we believe that the outcome is going to be the same.

[00:17:40] Speaker 05:
Why is there a reasonable likelihood that any of this evidence would have led to a different outcome?

[00:17:48] Speaker 04:
So it is our burden, although the court's case law has emphasized that the burden is not particularly onerous, and that the question is whether there might have been a different outcome, not whether it's guaranteed there was a different outcome.

[00:18:00] Speaker 04:
And the fact that the board could reach the same outcome on remand is not controlling.

[00:18:05] Speaker 04:
I believe there is.

[00:18:06] Speaker 06:
I just wonder whether that's the

[00:18:09] Speaker 06:
The argument that you're making is even the correct analysis.

[00:18:15] Speaker 06:
The error that you're posing was a failure to explain.

[00:18:20] Speaker 06:
The question is whether the failure to explain is harmless error.

[00:18:26] Speaker 06:
And if the record showed, for example, put aside your question, that was clear as a bell that

[00:18:36] Speaker 06:
the proposal, the request was out of time, then that would be a harmless error that the court didn't explain itself.

[00:18:45] Speaker 06:
You would not take all the evidence that it excluded and then say, what if this came in?

[00:18:51] Speaker 06:
That assumes you have a valid argument.

[00:18:55] Speaker 06:
And the hypothetical I'm giving you is that you don't have a valid argument for its admission.

[00:19:06] Speaker 04:
So that's not how the case was litigated below, or how the case is litigated here.

[00:19:10] Speaker 06:
I realize that.

[00:19:12] Speaker 06:
I understand that.

[00:19:13] Speaker 06:
I'm just saying that I don't think it's so clear that it was litigated correctly.

[00:19:19] Speaker 04:
I think the error is not harmless.

[00:19:22] Speaker 04:
And the problem with the Regents analysis is if you start looking and saying, well, what are reasons they might have given so it's harmless, that's at odds with the analysis that the court had in Citizens United and in Regents itself.

[00:19:35] Speaker 04:
So in Regents itself, the Department of Homeland Security said, there is no point to a remand.

[00:19:43] Speaker 04:
There is no reason to think.

[00:19:45] Speaker 04:
that the department secretary would do anything other than what is given in the Nielsen memo, and the matter would be remanded to the exact same decision-maker if there's a remand.

[00:19:57] Speaker 04:
And the Supreme Court still said it doesn't matter.

[00:20:00] Speaker 04:
The reason it has to go back is because these are important procedural protections that serve values of administrative law.

[00:20:09] Speaker 04:
It doesn't matter if the government is right that it will ultimately be pointless because the decision maker will reach the same outcome.

[00:20:17] Speaker 04:
But the hope is

[00:20:18] Speaker 04:
that when you have decision makers forced to give a reason for their actions, rather than just taking actions, they will reach better, more reasons, decisions?

[00:20:28] Speaker 06:
The only problem that you have is that it's not speculation.

[00:20:33] Speaker 06:
In this case, there's proof positive that the decision maker would reach the same outcome, and in fact did.

[00:20:40] Speaker 04:
I'm not sure that's right, because on the terms of the district court's remand, the district court didn't remand to the agency to reconsider the issue.

[00:20:50] Speaker 04:
He just remanded for an explanation of what was already done.

[00:20:53] Speaker 04:
The agency was locked into a decision point.

[00:20:56] Speaker 04:
The remand did not give it leave to take any other action.

[00:20:59] Speaker 04:
its only charge was to explain what it had done already, which is different from a remand, a general remand and a vacator, which would send it back to the agency and the agency could pick either path in the road and provide a reason that would support it.

[00:21:13] Speaker 06:
And the rationale- Is there an argument below in the district court, I don't recall, that the district court should not just simply remand but should vacate?

[00:21:25] Speaker 04:
I don't recall from the district court briefing, but I believe- But there wasn't.

[00:21:34] Speaker 04:
If there wasn't a request for vacancy, I agree that could be a problem.

[00:21:37] Speaker 04:
But all I'm discussing is the point that we are sure and prove positive what the agency would do on remand, because that's not actually what happened.

[00:21:48] Speaker 04:
And the agency made the exact same argument, both in Regents and Citizens United.

[00:21:53] Speaker 04:
They say, if you remand this, we are going to do the exact same thing on remand.

[00:21:58] Speaker 04:
And in both cases, the court said, that doesn't matter.

[00:22:01] Speaker 04:
These are important procedural values.

[00:22:03] Speaker 04:
And while procedures can often seem pointless, they serve real values of administrative practice.

[00:22:10] Speaker 02:
Those are contexts in which there is a generally applicable regulation that applied to private rights and duties.

[00:22:21] Speaker 02:
And you're saying that all of that is imported into a preliminary evidentiary determination in an adjudication.

[00:22:31] Speaker 04:
So I'm saying that the duty to provide reasons is imported into preliminary steps of an adjudication.

[00:22:38] Speaker 04:
And we've not seen anything in the law that suggests that agencies are free to take unreasoned steps so long as they're preliminary.

[00:22:45] Speaker 02:
Unreasoned, it's just that there's some understanding about efficiency and process for these types of preliminary matters.

[00:22:54] Speaker 04:
I agree the rule is not efficient and the Supreme Court goes out of its way in Regents to stress this is not an efficiency maximizing rule.

[00:23:02] Speaker 04:
It's ensuring that agencies do the process and do it correctly rather than skipping steps.

[00:23:08] Speaker 04:
So I agree it is not efficiency maximizing.

[00:23:10] Speaker 02:
For rule making.

[00:23:12] Speaker 04:
For rulemaking, although in his dissent, Justice Kavanaugh stresses that he doesn't think this rule should apply to rulemaking at all, and instead it should be confined to adjudications where the impacts on private rights are more obvious.

[00:23:26] Speaker 02:
He sort of draws a distinction between rulemaking and adjudications, but- There's no argument that the agency didn't give reasons about its ultimate decision.

[00:23:34] Speaker 02:
It's only about this preliminary matter.

[00:23:37] Speaker 04:
I agree.

[00:23:38] Speaker 04:
They gave reasons about their ultimate decision.

[00:23:40] Speaker 04:
The problem is that their reasons about the ultimate decision all are based on half of the applicable facts.

[00:23:47] Speaker 04:
To say they gave reasons for the ultimate decision where they didn't consider much of the material.

[00:23:52] Speaker 02:
So, but maybe where there's a failure to object or ask for reasons below, then you've not exhausted that issue before the agency.

[00:24:01] Speaker 04:
I mean, if the court wants to have this remanded so that we can take it back to the agency, that would solve an exhaustion issue, too.

[00:24:08] Speaker 02:
No.

[00:24:08] Speaker 02:
I mean, if you have an exhaustive, we don't remand for then there to be exhaustion.

[00:24:12] Speaker 04:
We were never given an opportunity to raise it at the agency because I think I'm going in a circle a little bit.

[00:24:20] Speaker 04:
The point is, the appellant went through the whole agency process.

[00:24:26] Speaker 04:
It is true.

[00:24:27] Speaker 04:
There was no reason given.

[00:24:29] Speaker 04:
And the question is where to put the burden of the reason.

[00:24:31] Speaker 04:
We say the burden should go on the agency who is the one exercising government power and impacting private rights.

[00:24:38] Speaker 04:
not on the person appearing before the agency.

[00:24:40] Speaker 04:
And ultimately, even if we lose that, I think we have a pretty strong fair notice problem because there's just nothing in this scheduling order that gives anyone an idea that it applies to exhibits.

[00:24:53] Speaker 04:
The agency itself didn't show that it understood the order that way.

[00:24:57] Speaker 04:
The board didn't show contemporaneously that it understood the order that way.

[00:25:01] Speaker 04:
And there's a number of statements elsewhere in the agency manual

[00:25:05] Speaker 04:
that talk about an ability to introduce evidence at the hearing.

[00:25:09] Speaker 04:
So the question on fair notice is just whether a reasonable person, when faced with this order, would have read it and said, other requests clearly applies to any request that requires the board approval, not just a request that is similar to a motion.

[00:25:24] Speaker 04:
And there's good reason to think that's not the case, because it sets separate deadlines for other items that did require board approval, like witness lists and objections to witness lists.

[00:25:35] Speaker 04:
There was never any deadline set for exhibits, and there was no deadline set to object to exhibits.

[00:25:40] Speaker 05:
Any further questions?

[00:25:42] Speaker 05:
No.

[00:25:42] Speaker 04:
All right.

[00:25:43] Speaker 04:
Thank you.

[00:25:54] Speaker 03:
Mr. Brewer.

[00:25:54] Speaker 03:
May it please the court.

[00:25:56] Speaker 03:
The board did give the reasons on remand, which is the remedy sought by Dr. Schacht in this case.

[00:26:01] Speaker 03:
And those reasons were that the evidence was untimely, plainly in the district court's word, and that it was irrelevant.

[00:26:09] Speaker 03:
And having now given those reasons, it comports with the plain language of the scheduling order, and it comports as well with the

[00:26:16] Speaker 03:
the notes of the pre-hearing conference at which other actions were taken on requests for the admission of evidence.

[00:26:23] Speaker 03:
And as the question is noted, it comports with Dr. Schock's own characterization of her pre-hearing quest for the introduction of this.

[00:26:32] Speaker 05:
Did the appellant argue below that the remand should be for reconsideration of the evidentiary rule?

[00:26:45] Speaker 03:
I don't know that below the appellant distinguished between that, but the district court allowed the agency the choice to either offer additional explanation or to reconsider its evidentiary ruling in light of the district court's first summary judgment opinion, and that appears at JA20.

[00:27:02] Speaker 03:
And that's perfectly consistent with regents, which said that the agency should be allowed to make that choice between those two options.

[00:27:08] Speaker 03:
JA20.

[00:27:12] Speaker 02:
government's view that a remand was necessary here for the agency to provide further explanation in this type of context?

[00:27:18] Speaker 03:
We haven't taken a position on whether or not it was necessary, but because it happened and because the agency did provide those reasons on the remand, we think that those were sufficient to justify district court's second summary judgment opinion.

[00:27:33] Speaker 03:
And as the district court explained,

[00:27:35] Speaker 03:
that is consistent with regents and it's consistent with this court's case law for the agency to be able to provide reasons on remand when directed to by a court.

[00:27:47] Speaker 03:
I'm happy to answer any other questions the panel has.

[00:27:56] Speaker 05:
No, that's all you have.

[00:27:58] Speaker 05:
That's fine.

[00:27:59] Speaker 00:
Thank you very much.

[00:28:03] Speaker 05:
All right.

[00:28:06] Speaker 05:
Mister Arnold, you used up all of your time.

[00:28:09] Speaker 05:
Will give you two minutes for.

[00:28:12] Speaker 04:
Thank you judge.

[00:28:14] Speaker 04:
So I want to know is that the government is correct that the district courts rule ruling both allowed the agency to provide an explanation or the agency could reconsider the decision.

[00:28:26] Speaker 04:
So I apologize for miss speaking.

[00:28:29] Speaker 05:
So why isn't that the end of your case?

[00:28:32] Speaker 04:
I don't think it's the end of the case because the agency didn't reconsider.

[00:28:36] Speaker 04:
All the agency did was provide a post hoc explanation and the court's case law and the Supreme Court's decision in Regents makes clear that the post hoc explanation will not do and an agency decision cannot be upheld on that basis.

[00:28:51] Speaker 04:
So had the agency taken the district court up and reconsidered, even if it came to the same conclusion on reconsideration,

[00:28:58] Speaker 04:
That wouldn't be a regions problem, but that's not the path that the agency took.

[00:29:03] Speaker 04:
The agency very clearly took a path of providing a post hoc explanation, and so the district court was wrong to uphold the agency action based on that explanation given years after the fact.

[00:29:13] Speaker 05:
So in every adjudication.

[00:29:19] Speaker 05:
Before any administrative body and ALJ a board like this.

[00:29:25] Speaker 05:
If there's any ruling.

[00:29:27] Speaker 05:
that happens in the course of that, that the losing party believes wasn't properly explained.

[00:29:38] Speaker 05:
They can challenge that and then the remedy would be a remand or reconsideration, mandatory reconsideration of every single one of those unexplained ruling.

[00:29:54] Speaker 04:
where the district court concludes that the agency did in fact fail to explain itself in the original administrative record, which is the same thing that happened in Regents and the same thing that happened in Citizens United.

[00:30:07] Speaker 04:
And the government just briefly mentioned the discussion of exhibits in the pre-hearing call.

[00:30:14] Speaker 04:
And there's a number, I think, about eight of those listed on GA 223.

[00:30:18] Speaker 04:
If the court looks at those submissions that are on pages 479 to 597 of the administrative record, none of them are styled as this is a request for introduction of hearing exhibits.

[00:30:32] Speaker 04:
They're motions and they're witness lists where they have attachments in support of the motion or an attachment in support of the testimony that the witness is expected to proper.

[00:30:44] Speaker 04:
There just isn't a time when either party

[00:30:47] Speaker 04:
put in a set of trial exhibits and said, here is our exhibits that we understood are due on October 7th.

[00:30:55] Speaker 04:
It doesn't exist.

[00:30:57] Speaker 04:
All right.

[00:30:58] Speaker 05:
Thank you.