[00:00:00] Speaker 08: Case number 21-5181. [00:00:03] Speaker 08: William B. Jolly at balance versus United States of America. [00:00:07] Speaker 08: Ms. [00:00:07] Speaker 08: Dottie, Amicus Curiae for the at balance. [00:00:10] Speaker 08: Mr. Peters for the appellate. [00:00:17] Speaker 05: It's still morning. [00:00:18] Speaker 08: Yes, still morning. [00:00:19] Speaker 08: Good morning and may it please the court. [00:00:22] Speaker 08: My name is Kendra Doty, and I've been appointed as amicus curiae to present arguments that I have determined to be potentially meritorious in favor of Mr. Jolly's position. [00:00:34] Speaker 08: In this case, the district court found, based on this court's decision and Jarkasee versus Securities and Exchange Commission, that it lacked jurisdiction over Mr. Jolly's claims that the Merit System Protection Board's administrative review process is unconstitutional. [00:00:51] Speaker 02: Can you explain what claims are pending in terms of the marriage claims with respect to what went before the review boards? [00:01:00] Speaker 02: Because there were several litigation. [00:01:02] Speaker 08: Yes, Mr. Jolly has several petitions before the board, before the district court, apparently before the Supreme Court. [00:01:10] Speaker 08: I know that several have been identified in the record on appeal. [00:01:14] Speaker 08: I do not know the full extent of what he has presented in various courts or boards throughout the country. [00:01:20] Speaker 08: But my understanding is that the government has indicated that the Merit System Protection Board [00:01:27] Speaker 08: proceedings and any federal circuit review appeals have concluded. [00:01:31] Speaker 08: It is my position that that does not necessarily mean that this appeal is moot. [00:01:39] Speaker 02: No, I'm not suggesting that. [00:01:40] Speaker 02: I'm just trying to get a sense of what's left. [00:01:43] Speaker 02: Like what do outside of the challenge of the constitutional claims that he has, what other relief is he seeking? [00:01:50] Speaker 08: So in this particular case that's on appeal before the court now, Mr. Jolly has raised three claims challenging the constitutionality of the board. [00:01:59] Speaker 08: Those claims are one, that the structure of the review process, where some claims are routed to district courts while others are routed to the board, violates equal protection. [00:02:11] Speaker 08: Second, [00:02:12] Speaker 08: that the board and that the board and its administrative judges are unconstitutionally exercising article three power and third that the administrative judges appointments violates the appointments clause. [00:02:25] Speaker 08: So those are all constitutional arguments that he's presenting in this case. [00:02:29] Speaker 07: The last one is moot. [00:02:31] Speaker 08: The last one may be moot your honor. [00:02:33] Speaker 08: I think that there [00:02:35] Speaker 08: It is important to emphasize that the mootness question turns on questions of fact that are not currently in the record before this court. [00:02:43] Speaker 06: But it's close, right? [00:02:45] Speaker 06: What questions of fact would that turn on? [00:02:47] Speaker 08: I believe that it would be useful to see the ratification order itself that the government has identified that the board issued ratifying the appointments of the administrative judges. [00:02:57] Speaker 08: And it would be useful to know the specific facts underlying the administrative judges subsequent proceedings in Mr. Jolly's case, because Lucia says that the actual process that happens after an officer is constitutionally appointed [00:03:16] Speaker 08: you need to look at the process to make sure that the initial injury has been fully resolved. [00:03:21] Speaker 08: And that is the question that is factual and that is not, the record just doesn't exist for this court to allow this court to make an informed decision on that issue. [00:03:29] Speaker 07: We're getting the threshold stuff and get to the heart of what we're fighting about, whether or not Axon applies. [00:03:37] Speaker 07: That is, whether he can proceed in district court with his so-called constitutional claims, whether he's bound [00:03:47] Speaker 07: and Elgin and other such cases. [00:03:52] Speaker 07: Now the Supreme Court in Axon says we're going to follow this approach and avoid the Thunder Bay requirement in a situation there which they described as [00:04:09] Speaker 07: case presenting extraordinary claims involving fundamental, even existential challenges to the structure of the very existence of the agencies. [00:04:18] Speaker 07: You really think that's what's going on here? [00:04:21] Speaker 07: I think that the scope of- Not that he's, not whether he's raising a constitutional claim, but is he raising a claim of the sort that caught the Supreme Court's attention in Axon? [00:04:36] Speaker 07: Yes, ordinary existential structure of very existence. [00:04:40] Speaker 07: Okay. [00:04:40] Speaker 07: Tell me why so. [00:04:41] Speaker 08: Yes. [00:04:42] Speaker 08: Although the scope of Mr. Jolly's claims might not be as broad as those presented an axon and it's convenient case Cochran. [00:04:50] Speaker 08: He's raising the same type of claim. [00:04:52] Speaker 08: in his complaint before the district court, mainly whether the three claims that I just listed, the Article Three issue, the Equal Protection issue, and the Appointments Clause issue. [00:05:02] Speaker 07: Appointments, let's assume it's moot, so we're raising those, the other two, okay. [00:05:06] Speaker 07: Why are they existential? [00:05:08] Speaker 08: They go to the board's ability to hear his claims at all. [00:05:11] Speaker 08: He challenges the structure of you Sarah's administrative review scheme at its base. [00:05:16] Speaker 08: He's not challenging a substantive employment decision, which is what this court held in. [00:05:23] Speaker 08: Jarkissian and in other cases such as Elgin and Thunder Basin, when a litigant is challenging the substantive action that Congress has determined it should be routed to and heard by an administrative body in the first instance, that should be routed that direction. [00:05:39] Speaker 08: Whereas in this case, as an axon, Mr. Jolly is challenging the structural review process. [00:05:45] Speaker 07: What is extraordinary, and I realize this is a peak at the merits, but given what the Supreme Court said in axon, I don't know how you can avoid doing it. [00:05:54] Speaker 07: when they're talking about determining whether they're extraordinary, existential, very existent today. [00:06:00] Speaker 07: We're looking at whether there's any thrust to what's being presented, right? [00:06:05] Speaker 08: We're looking at the substance of the claims themselves, but not necessarily at the merits. [00:06:09] Speaker 07: What's existential about what he's claiming? [00:06:13] Speaker 07: What is the huge thing that worries me to death so that I would allow him to jump what Congress has required? [00:06:20] Speaker 07: This is a situation where Congress has set up [00:06:23] Speaker 07: cause of action and jurisdictional. [00:06:25] Speaker 07: And it's been in existence for a long period of time. [00:06:28] Speaker 07: And Congress has chose not to do what Mr. Jolly wants to do. [00:06:32] Speaker 07: Why would a court say, no, no, no, we should do it a different way? [00:06:35] Speaker 08: So Mr. Jolly's claims are not the specific type that Congress has routed to the administrative agency. [00:06:41] Speaker 08: And Axon instructs that what the court should do in assessing whether a district court has jurisdiction over- When you say not the type, I want to be really particular. [00:06:51] Speaker 07: What's worrying you? [00:06:53] Speaker 07: In other words, I knew when I read Axon, what was bothering the court, given some recent case law and what the court was concerned about, you knew why they might think that was existential. [00:07:04] Speaker 07: What is existential here? [00:07:06] Speaker 08: The existential element in this case, although it doesn't mean that the board itself goes away, it would mean- And that's important. [00:07:15] Speaker 08: And that is important. [00:07:16] Speaker 07: And that's not here. [00:07:16] Speaker 08: That's not here. [00:07:18] Speaker 08: Okay. [00:07:18] Speaker 08: But the type of issue that Mr. Jolly raises speaks to the board's ability to hear you, Sarah claims, alleging this type of discrimination that Mr. Jolly raises. [00:07:27] Speaker 08: In this case, he is not presenting any substantive challenge to any particular employment decision [00:07:33] Speaker 08: which it would be the type of claim that would be routed directly to the agency because he's raising a substance or a structural challenge to the board's ability to hear his claims at all. [00:07:45] Speaker 08: That is what routes it to the district court and allows the district court to have jurisdiction. [00:07:49] Speaker 07: You know, it's funny, we raised as we have a recent decision in [00:07:55] Speaker 07: In this court, I mean, you wonder, you look at a case like this and what kind of mischief are you going to create if you take action on literally to say anytime someone says it's structural and I don't think they can really hear this. [00:08:10] Speaker 07: And therefore I get to district court. [00:08:12] Speaker 07: I mean, this potential mischief there. [00:08:14] Speaker 07: And I think our court in Loma Linda, I think it said, no, merely because it's more than an insignificant constitutional claim. [00:08:22] Speaker 07: It doesn't mean we're going to avoid fun debate. [00:08:24] Speaker 08: I completely agree with that. [00:08:27] Speaker 08: I think that the Axon standard creates a tricky question and the court will need to hold the line on making sure that claims like those in Loma Linda and like those in pain, that where a litigant just frames its issue as constitutional, when they're really challenging the substance of a claim, Congress has said needs to go to the agency. [00:08:48] Speaker 07: Play it out for me a little bit. [00:08:51] Speaker 02: You sound like you're dismantling Congress's structure for these claims. [00:08:56] Speaker 02: They've already set up a procedure. [00:08:59] Speaker 07: This is not like Congress said. [00:09:02] Speaker 07: Veterans who are black use this approach. [00:09:05] Speaker 07: Women use a different approach. [00:09:08] Speaker 07: Hispanic persons have to use a different one. [00:09:10] Speaker 07: It's nothing like that, right? [00:09:12] Speaker 07: um correct if i understand yeah and i want you to play it out what is it what is the horror here in terms of you're calling it equal protection to call something a failure of equal protection maybe it's just me i need to understand that a little bit better what are we what are we talking about here can congress not do this [00:09:35] Speaker 08: No, I don't think the axon or that my position is that Congress can't route claims to agencies at all. [00:09:41] Speaker 08: I think that the issue in this particular case is Congress has routed employment discrimination claims to the Merit System Protection Board. [00:09:51] Speaker 08: That is allowable. [00:09:52] Speaker 08: That can happen. [00:09:53] Speaker 08: Mr. Jolly is not challenging one of those types of claims. [00:09:57] Speaker 08: As an axon, he's raising a challenge that having to go through that administrative process inflicts an injury because he thinks that the board... He's claiming he has a right to something, and that's based on his notion that there's a failure of equal protection. [00:10:10] Speaker 07: What's the failure of equal... I understand I'm supposed to be cautious about deciding the merits. [00:10:15] Speaker 07: I understand that, but I still have to understand [00:10:18] Speaker 07: Because I think that's what Loma Linda is saying, merely because you present something that's facially looks OK as a constitutional claim doesn't mean we're going to avoid some debate, OK? [00:10:28] Speaker 07: What is it that I'm worrying about in this case as opposed to saying blacks go here and women go there and Hispanics go there? [00:10:37] Speaker 07: I can understand the possible plausibility of what we're talking about, that what is it that's worrisome here when Congress has set up an approach for veterans [00:10:48] Speaker 07: You're saying it would be okay if Congress said all veterans have to go to the MSPB, right? [00:10:55] Speaker 08: Yes, if Congress wants to do that, I don't know. [00:11:00] Speaker 08: Why they couldn't? [00:11:01] Speaker 08: Why they couldn't, I have not thought that question through. [00:11:03] Speaker 07: And they would say all veterans have to go to district court, right? [00:11:07] Speaker 08: They could, but they have not done so. [00:11:09] Speaker 07: Okay, so now, okay, the failure to do so causes what problem? [00:11:15] Speaker 08: Well, Mr. Jolly believes that it violates his attorney. [00:11:19] Speaker 07: You tell me your best because you had to have thought about this. [00:11:22] Speaker 08: I have thought about it. [00:11:23] Speaker 08: I will clarify for the court that I'm not Mr. Jolly's attorney, so I understand you're helping us and we appreciate that. [00:11:30] Speaker 08: I, I think that the merits questions of Mr jolly's claims are tricky I do not know if he will prevail, I do not think that this court needs to get into the weeds of that or really determine if there would in fact be an equal protection violation based on. [00:11:46] Speaker 08: the statutes treatment of veterans who are federally employed. [00:11:51] Speaker 07: We can't avoid it, right? [00:11:52] Speaker 07: And especially when I look at Axon, which uses the words it's using, it's existential and extraordinary. [00:12:02] Speaker 07: And so that means as a judge, we're human beings, [00:12:07] Speaker 07: That causes us to think, well, is this the kind of claim that really is of that sort, fundamental, existential, extraordinary? [00:12:16] Speaker 07: Are we talking about something like that? [00:12:18] Speaker 07: Because I think what they're otherwise saying is, we had to leave it where Congress put it. [00:12:25] Speaker 07: And Congress said to use the district court in a certain set of cases, the MSPB in a certain set, and state court. [00:12:33] Speaker 08: Axon instructs that the question that is currently before this court and that was before the Supreme Court in Axon is not whether the merits of the claims will ultimately prevail. [00:12:44] Speaker 08: It's where those claims can be heard. [00:12:45] Speaker 07: No, I know. [00:12:46] Speaker 07: But wait, because you got Elgin. [00:12:48] Speaker 07: Yes. [00:12:49] Speaker 07: And you've got Loma Linda. [00:12:51] Speaker 07: You've got cases in which we say we're not avoiding Thunder Bay because choices have been made and we don't see an extraordinary reason to run away from the choice that you send the argument this way or that way. [00:13:05] Speaker 07: So it's unavoidable that we're going that we're not going to look at the nature of what's being presented because otherwise anyone can come in and say there's a structural constitutional problem here. [00:13:18] Speaker 08: Well, that does require the court to look at whether a person's spin of what their claim actually is is true. [00:13:27] Speaker 08: And in this case, as an axon, contrary to Elgin and Loma Linda, Mr. Jolly raises a claim that at its base does raise a constitutional structural challenge to the review process itself. [00:13:39] Speaker 08: This is not a circumstance where he's challenging the substance [00:13:43] Speaker 08: of a claim that Congress has routed to the agency. [00:13:46] Speaker 08: And that is the distinction. [00:13:47] Speaker 08: And I think this works. [00:13:48] Speaker 07: Well, suppose we had a situation where the claim this person comes in, my neighbor can go and I can't. [00:13:53] Speaker 07: That's a denial of equal protection. [00:13:57] Speaker 08: I mean, so I think that this court's explanation in pain, although the proceedings have kind of outrun that decision. [00:14:05] Speaker 08: Right. [00:14:06] Speaker 08: I think that the court's explanation of the litigants spin of its claim is constitutional and its analysis of what that claim actually was, that's precisely the type of analysis that is necessary in light of Axon. [00:14:20] Speaker 08: And in this case, the substance of Mr. Jolley's claims is that [00:14:26] Speaker 08: he should not have to proceed before the board at all. [00:14:28] Speaker 08: And having to do so would inflict a here and now injury. [00:14:31] Speaker 07: Don't I have to at least find a plausible claim? [00:14:36] Speaker 07: I think that a plausible- When you say avoid the merits, that means I don't even look at plausibility. [00:14:42] Speaker 08: This stage, no, I think that that- I don't know how you can get that out of Axon. [00:14:46] Speaker 07: I mean, Axon using the words that it's using, I think the court was at least suggesting, we're assuming it's a plausible indeed, existential, fundamental, extraordinary claim, which is you're even agreeing by your silence that that's not what we're looking at here. [00:15:02] Speaker 07: But we have to find something that has some meat on it, not just this is constitutional and denies me equal protection. [00:15:09] Speaker 08: Well, the distinction in this case, I agree that Axon and Cochran did raise really needy, probably plausible, I'm not sure about that, intentions about the SEC and the FTC's ability to hear the claim. [00:15:24] Speaker 08: This case is much narrower, but the substance of his claim is indistinguishable from those that issue an axon. [00:15:31] Speaker 08: And that is what means that the district court had jurisdiction. [00:15:34] Speaker 08: The district court in assessing whether it has jurisdiction will be able to decide on a motion to dismiss or summary judgment or or in other later proceedings that his claims are ultimately without merit. [00:15:47] Speaker 08: But just at this initial stage, determining whether the courthouse doors are open to Mr Jolly, Axon says you look at the type of claim that he is raising and then you can proceed through the Thunder Basin factors. [00:16:00] Speaker 07: And in this case. [00:16:02] Speaker 07: And get court review. [00:16:03] Speaker 07: the appropriate moment not going to be denied for you'll get it. [00:16:07] Speaker 08: That's correct. [00:16:09] Speaker 07: But Melinda says just because there's a plausible constitutional claim being raised does not mean we avoid Thunder Bay. [00:16:16] Speaker 08: That's correct. [00:16:18] Speaker 08: But the issues and the claims in Elgin and in Loma Linda were the types of substantive claims that Congress had specifically routed to the administrative review proceeding. [00:16:28] Speaker 07: See, the problem with that is, and I'm not going to bore you with my hypotheticals because I've thought about it, but you can think of a thousand hypotheticals of [00:16:35] Speaker 07: really insane things that are not within the compass of the agency's authority and say, but wait, I'm raising this stupid thing. [00:16:43] Speaker 07: The agency doesn't decide that stupid thing. [00:16:45] Speaker 07: And therefore I'm not bound by Thunder Bay. [00:16:47] Speaker 07: It has to go to district court because my alleged equal protection claim is based on really stupid stuff. [00:16:55] Speaker 07: And the agency has no authority to decide stupid stuff. [00:16:58] Speaker 07: So I'm in district court. [00:16:59] Speaker 07: Really? [00:17:00] Speaker 08: I think that that's not the case in this circumstance. [00:17:03] Speaker 07: And I also want to clarify- I wanted to understand why it was you thought this had, this claim had some meat. [00:17:11] Speaker 07: I mean, again, I don't- Your expressions have suggested, I haven't come up an easy answer, Judge. [00:17:17] Speaker 07: I'm doing my best, but it's hard. [00:17:18] Speaker 07: You're right. [00:17:19] Speaker 08: Yes. [00:17:20] Speaker 08: It is a tough question. [00:17:21] Speaker 08: The merits of Mr. Jolly's claims, I'm not sure that they will succeed. [00:17:26] Speaker 08: But the issue in this circumstance is whether they are the type of claim that Congress has routed to the agency. [00:17:37] Speaker 08: On the redressability point, I mean, as noted in the briefs, I think that, or it is clear to me that under Axon and other cases similar to this one, Mr. Jolly has asserted a here and now injury of having to proceed through the administrative review proceeding at all [00:17:57] Speaker 08: that is fairly traceable to the application of USERRA's statutory review scheme and that it would be redressable were a court to conclude that that statutory review scheme is unconstitutional. [00:18:10] Speaker 07: Does that mean there's no, I'm jumping in on my colleague because I'm too wound up. [00:18:17] Speaker 02: Keep going. [00:18:18] Speaker 07: Yeah. [00:18:18] Speaker 07: Does that mean that, so he has nowhere to go because Congress hasn't given him [00:18:24] Speaker 07: this opportunity or does that mean we tell the district court and we tell Congress that we don't care what you wrote because of his alleged constitutional claims he has to have a right to present this in the district court even though he has no cause of action as Congress has indicated and we're not sure what the remedy would be because of the APA problem. [00:18:44] Speaker 07: What does it mean in terms of redressability? [00:18:47] Speaker 08: I mean, the redressability issue, the issues that the government has raised, I think, ask Mr. Jolly to prove more than is necessary. [00:18:54] Speaker 08: At the standing inquiry, this court and the district court assumes that Mr. Jolly will prevail. [00:18:59] Speaker 07: No, no, but my colleague has focused you. [00:19:02] Speaker 07: What is, even in standing inquiry, we ask counsel, so what's the redress? [00:19:10] Speaker 07: So it's perfectly appropriate for us to say, what do you envision the redress if he wins? [00:19:16] Speaker 08: If he wins on the merits of his- What would we say? [00:19:20] Speaker 08: What would this court say on the jurisdictional issue? [00:19:22] Speaker 08: Yeah. [00:19:23] Speaker 08: I think this court should say on the jurisdictional issue, district court has jurisdiction over Mr. Jolly's claims because he is not able to effectively bring them before the board and get effective, meaningful judicial review before the federal circuit because his claims are that he should not be- Even though Congress has given no cause of action and denied jurisdiction. [00:19:44] Speaker 07: And it's their call, right? [00:19:46] Speaker 08: Well, I disagree that Congress has denied jurisdiction because of the types of claims that Mr Joliet's raised. [00:19:51] Speaker 06: What is the cause of action? [00:19:53] Speaker 06: So let's suppose we remand it and say that the district court has jurisdiction. [00:19:58] Speaker 04: Okay, he has a complaint. [00:20:01] Speaker 04: What is his cause of action? [00:20:05] Speaker 08: That is a good question. [00:20:09] Speaker 08: That is a good question. [00:20:11] Speaker 08: I don't think that this court needs to get into it because the sole question on appeal is whether the district court had jurisdiction in the first place. [00:20:18] Speaker 08: I think that Mr. Jolly would probably say yes to that. [00:20:23] Speaker 02: The district court should have jurisdiction based on axon and your interpretation of it. [00:20:27] Speaker 02: Then what? [00:20:28] Speaker 08: Then proceedings go on through the district court. [00:20:30] Speaker 08: The district court might assess. [00:20:32] Speaker 02: But we can't bring the [00:20:34] Speaker 02: statutes over, like pull over and go grab the claims that are in another proceeding. [00:20:41] Speaker 07: What's the cause of action? [00:20:42] Speaker 07: I mean, that really that's what would occur to all three of us. [00:20:45] Speaker 07: What's the cause? [00:20:45] Speaker 07: Because our district college would be furious if we sent a case back and said, you got jurisdiction. [00:20:51] Speaker 07: We have the faintest idea what the cause of action is, but do your best. [00:20:56] Speaker 08: I, yes, I agree that that would be, that would be a challenge for the district court to determine, but the district court might also welcome this court's clarification on what of this court's decision and JARCASY remains in light of Axon. [00:21:08] Speaker 08: There is a lot of tension that Axon creates with- Is JARCASY still pending before the Supreme Court? [00:21:14] Speaker 08: So the substance of JARCASY's claims are still pending before the Supreme Court. [00:21:17] Speaker 08: They heard argument, I think two or three weeks ago. [00:21:20] Speaker 07: They did hear argument. [00:21:21] Speaker 08: They did hear arguments. [00:21:23] Speaker 08: So that should be available online. [00:21:24] Speaker 02: But I'm just saying, I've raised that for the point of us doing any type of clarification with axon and bureaucracy while that's been me. [00:21:34] Speaker 08: So this court's decision, Jarkasee, is still valid law, regardless of the further proceedings that have occurred in Mr. Jarkasee's claim. [00:21:44] Speaker 02: From what I understand- I've learned that we never know what the higher court's going to do. [00:21:48] Speaker 02: As a former district judge and you have something going on appeal, we'll say, that's not the case I tried. [00:21:53] Speaker 02: So we don't know what the appellate- [00:21:55] Speaker 08: Yeah, we don't know what the Supreme Court will ultimately hold, but from what I understand, the question, the jurisdictional issue is not what is before the Supreme Court. [00:22:04] Speaker 08: It's rather Mr. Jarcozy's substantive claims about the Seventh Amendment violation with respect to his SEC proceedings and the other substance of his claims. [00:22:15] Speaker 08: I, I, the court could do whatever it wants to do. [00:22:18] Speaker 08: So it might weigh in on this jurisdictional issue, but I don't anticipate that it will affect this court's decision in Jersey, regardless of what happens there. [00:22:28] Speaker 08: This court's decision is still raining, but it is severely [00:22:34] Speaker 02: I compromised, but if I recall, kind of for some clarification from us about applicability of that son and so that's what I'm getting at about how far do we go in light of a pending case with the Supreme Court. [00:22:50] Speaker 08: This court can only do what it can do with the law as it currently stands, and it did so with jarkacy. [00:22:58] Speaker 08: It read Elgin the best that it could. [00:23:00] Speaker 08: It read the Thunder Basin line of cases the best that it could, and it reached a decision. [00:23:05] Speaker 08: Since then, the Supreme Court has issued axon and clarified the law and provided different instructions that conflict with jarkacy. [00:23:13] Speaker 08: Currently, before this court, [00:23:15] Speaker 08: That jurisdictional issue is before you, and you can only decide it based on the law that exists. [00:23:24] Speaker 08: I disagree with that. [00:23:26] Speaker 08: I read the Loma Linda opinion very closely and I think that the majority of that order is very clear that you need to look at the substance of the claims that are being raised and Loma Linda in that case was not raising the type of structural criticism that Mr. Jolly and the parties in the axon cases were raising. [00:23:47] Speaker 08: Instead, it was trying to challenge an NLRB proceeding that it asserted violated [00:23:54] Speaker 08: its constitutional rights and the majority of that panel didn't buy that characterization of what their claims actually were. [00:24:05] Speaker 08: And that kind of analysis diving into the nature of the claims themselves is what Axon says courts need to do. [00:24:12] Speaker 07: Yeah, but you see what the court did, which wouldn't surprise, I think certainly didn't surprise me that they [00:24:20] Speaker 07: added some language that's cautious, which said merely because it's plausible constitutional claim that the agency might not address does not mean we avoid thunder bay. [00:24:33] Speaker 08: That's exactly right. [00:24:35] Speaker 07: And I think that's what we're talking about here. [00:24:37] Speaker 07: I found a constitutional claim the agency might not address, but it doesn't mean that we avoid thunder bay, especially. [00:24:44] Speaker 07: And this is what really troubles me, because I don't otherwise know how to read the Supreme Court. [00:24:49] Speaker 07: where you can't put it in the category, which is so straightforward, extraordinary, existential, over the top kind of question. [00:24:59] Speaker 07: The things they were dealing with, we all understood where the court was going on those issues. [00:25:05] Speaker 07: They were clear there to be addressed. [00:25:08] Speaker 07: I don't know what it is we're talking about here. [00:25:10] Speaker 07: And you're agreeing, you're saying, and you've done a really good job in trying to present this to us, [00:25:15] Speaker 07: But you're saying even you couldn't find a lot of meat to it, certainly not existential. [00:25:21] Speaker 08: On the merits, I couldn't, I haven't assessed it to determine if there is a lot of meat, but Mr. Jolly's claims are exactly the type of claims that were at issue in Axon. [00:25:31] Speaker 07: Yeah, but the problem, you don't want to put it that way because it doesn't make sense. [00:25:35] Speaker 07: It means as I was trying to, any plaintiff can come in and raise a stupid issue and say, this is not something the agency would consider. [00:25:43] Speaker 07: And therefore I'm calling it constitutional. [00:25:46] Speaker 07: And so I'm entitled to be in this court. [00:25:47] Speaker 07: That can't be the law. [00:25:49] Speaker 08: Correct. [00:25:49] Speaker 08: It's not the law that calling a claim constitutional determines where the claim can be heard. [00:25:55] Speaker 08: Axon says that whether a constitutional claim speaks to the structure of the administrative review proceeding itself is what is determinative. [00:26:03] Speaker 08: And in this, yes. [00:26:06] Speaker 08: In this case, Mr. Jolly raises that kind of structural constitutional claim. [00:26:11] Speaker 06: So let's suppose, um, um, [00:26:16] Speaker 06: someone files a lawsuit in district court and says, you know, there's Congress requires there to be an EEO see kind of exhaustion for employment discrimination cases. [00:26:38] Speaker 06: But I think that that violates Article three [00:26:42] Speaker 06: because I should just be able to go straight to a judge and have a judge make a determination and not waste my time with this administrative agency. [00:26:59] Speaker 03: Is that a claim that fits within action? [00:27:10] Speaker 08: first glance, I believe that a constitutional challenge to an exhaustion requirement would probably fit within Axon. [00:27:22] Speaker 08: But as Axon instructs, you have to go through the rest of the Thunder Basin factors to make sure that it is [00:27:29] Speaker 08: It is unable to get meaningful judicial review if the party were to go through the administrative proceedings that it is collateral to the claims that issue which I'm not sure that it that an exhaustion argument would actually be collateral to the substantive claims. [00:27:46] Speaker 08: And that the claims about the constitutional nature of an exhaustion requirement fall outside of the agency's expertise. [00:27:55] Speaker 08: And I'm not familiar with EEOC work. [00:27:59] Speaker 08: So I don't really know what that last part would look like. [00:28:03] Speaker 08: But I think that that's the type of analysis that a court would have to do under Axon. [00:28:11] Speaker 06: raises hypo, it's probably like one of the thousand that Judge Edwards has already thought of, is that it seems that one could dream up some sort of Article III type challenge to any sort of administrative adjudicatory process. [00:28:39] Speaker 06: by just saying, like, I shouldn't have to go through that process. [00:28:45] Speaker 06: This claim just from start to finish should be before an Article three judge, not some, you know, kangaroo court, you know, bureaucrat, deep state, um, you know, administrative system. [00:29:03] Speaker 06: And, you know, you could say that about 1000 different things that are in the US code. [00:29:11] Speaker 04: And, um, we will be opening the floodgates to all of that litigation in the district court, um, based on kind of this construction of an existential challenge. [00:29:34] Speaker 06: Does that make sense? [00:29:36] Speaker 08: Yes, that makes sense. [00:29:37] Speaker 08: And I think that that is a risk of Axon's decision. [00:29:41] Speaker 08: Axon says that the type of structural claims that the parties raised in that case and that Mr. Jolly raises in this case can go straight to district court because they challenge the review process itself. [00:29:54] Speaker 08: So there is a risk that this could open the floodgates to any kind of challenge to any part of a procedure. [00:30:01] Speaker 08: However, [00:30:04] Speaker 08: All of the other jurisdictional requirements that normally apply to cases would still apply. [00:30:09] Speaker 08: So the party would have to have standing. [00:30:10] Speaker 08: They would need to have a cause of action. [00:30:13] Speaker 08: They would need to have a claim that is not moot. [00:30:16] Speaker 08: And all of those things would have to be satisfied. [00:30:18] Speaker 02: And that's why I started out the proceedings with kind of the relief left. [00:30:22] Speaker 02: What are we, what, what are we advancing, you know, here? [00:30:26] Speaker 02: And so I would like more [00:30:30] Speaker 02: a direct answer to Judge Jesuit's question about what's the cause of action, because what's left if we say yes to you and that axon applies? [00:30:39] Speaker 02: What do you gain from this? [00:30:41] Speaker 02: What does the next litigant gain from that? [00:30:44] Speaker 08: So if this court decides the jurisdictional issue that's before it, Mr. Jolly's case would, I would say that the court should [00:30:53] Speaker 08: reverse the district court's decision and remand for further proceedings, in which case Mr. Jolly would be able to proceed in the district court. [00:31:01] Speaker 08: The district court would then have discretion. [00:31:03] Speaker 02: Then is that reversing all of his former merits hearing findings? [00:31:07] Speaker 08: No, it would not affect his merits hearing findings or proceedings before the board or the federal circuit. [00:31:12] Speaker 08: It would only affect the district court's decision in this case. [00:31:16] Speaker 08: The ongoing proceedings. [00:31:19] Speaker 07: What's the decision? [00:31:20] Speaker 08: The district court's decision that it lacked jurisdiction. [00:31:23] Speaker 08: That is what we don't know. [00:31:24] Speaker 07: I mean, so what's the result? [00:31:27] Speaker 08: The result is the case would continue. [00:31:30] Speaker 08: The government would be free to again. [00:31:32] Speaker 02: What's the case? [00:31:33] Speaker 02: What's the case? [00:31:36] Speaker 08: The case is his at least two claims that the review process itself is unconstitutional. [00:31:41] Speaker 07: On a cause of action that Congress has given to the MSPB and the federal surrogate. [00:31:46] Speaker 08: So Mr. Kelly asserts his claims under I believe it's section 1331, just federal question jurisdiction arising out of the Constitution. [00:31:54] Speaker 08: I have not assessed the merits of whether that is a valid cause of action. [00:31:59] Speaker 08: The district court would be free to decide that issue on remand. [00:32:02] Speaker 06: But what we've said, if somebody just asserts federal question jurisdiction and says that they can't really identify a statutory cause of action, but their federal question is that something unconstitutional [00:32:21] Speaker 06: is being done. [00:32:22] Speaker 06: We've said that that's akin to mandamus. [00:32:27] Speaker 06: And you gotta meet the mandamus stand. [00:32:30] Speaker 08: I I know that Mr Jolly has brought mandamus actions before. [00:32:36] Speaker 08: I cannot recall if he mentioned the word mandamus in any of his district court filings. [00:32:41] Speaker 06: I don't believe that he did why I raised that is redress ability. [00:32:46] Speaker 06: Mr Jolly has to show life. [00:32:50] Speaker 06: of redress, not like theoretic redress. [00:32:57] Speaker 06: So what's the likelihood of redress where you can't identify a cause of action and the only one that's plausible would be one that would be akin to a mandamus standard. [00:33:09] Speaker 06: And mandamus requires the showing that basically [00:33:15] Speaker 06: You know, it's indisputable that he's entitled to this relief, and there's no prior precedent that grants any such relief. [00:33:29] Speaker 06: So we've held and the Supreme Court has held that under that circumstance, you can't say that there's a clear and indisputable [00:33:37] Speaker 06: right to relief. [00:33:39] Speaker 06: So basically we would just be remanding this for a certain dismissal. [00:33:48] Speaker 06: Perhaps either for lack of jurisdiction because he can't meet the mandamus standard or failure to state a claim because there is no client. [00:33:58] Speaker 06: But how is that consistent with showing that there is a likelihood of redress? [00:34:05] Speaker 08: As I understand this court's precedent, the standing inquiry assumes that Mr. Jolly will prevail on the merits of his appeal. [00:34:14] Speaker 08: He has requested relief that would amount to an order saying that the Merit System Protection Board's review process is unconstitutional and he can go straight to federal court. [00:34:24] Speaker 08: If that were to be the ultimate outcome of the district court's case, that would redress his claims. [00:34:30] Speaker 08: There could be barriers such as a cause of action or other jurisdictional issues that could prevent that relief in fact. [00:34:40] Speaker 08: But at this stage, as I read this court's precedent, Mr. Jolly doesn't have to prove the counterfactual of what the world would look like if he were in fact to prevail. [00:34:49] Speaker 08: all he needs to do is allege a sufficient injury that is traceable and can be redressed. [00:34:54] Speaker 08: And I don't think that this court needs to get into all of that because the district court did not have the opportunity to assess those, or I chose not to assess those issues when it decided that it lacked jurisdiction over Mr. Jolly's claims under Jarkosee. [00:35:09] Speaker 08: And I think that, or I should emphasize that this court's [00:35:16] Speaker 08: current precedent with Jarkissi still good law is unclear and the district court and future panels of this court would benefit from a clarification of what of Jarkissi remains in light of Axon. [00:35:28] Speaker 07: See what's interesting in this case is that you conceded early on, I think correctly, that if it was just a procedure before the MSBB, he wouldn't have any claim, any so-called constitutional claim. [00:35:44] Speaker 07: If all of these cases were routed through the MSPB, you're not contending, no, that's constitutionally infirm. [00:35:54] Speaker 07: So he's not really challenging the existence of the MSPB. [00:36:00] Speaker 07: It's mirrored. [00:36:00] Speaker 07: I mean, that's what leapt out at me initially. [00:36:04] Speaker 07: He's not saying as in Axon that the existence, the structure, [00:36:10] Speaker 07: should go away because of the constitutional claim, quite the contrary. [00:36:16] Speaker 07: He's assuming it can exist and he can be made to go there as long as everyone else is made to go there. [00:36:22] Speaker 08: Right. [00:36:22] Speaker 07: OK, so which causes me when I'm trying to and I really appreciate your effort to deal with this and are pressing you is nothing about you. [00:36:30] Speaker 07: It's just about the issues. [00:36:33] Speaker 07: The agency using the axon formulation, whether the devil that is, [00:36:39] Speaker 07: is the agency can still decide its core work, which is one of the things you were concerned about. [00:36:46] Speaker 07: He's not suggesting they should be removed from their core work, including these kinds of discrimination claims. [00:36:51] Speaker 07: They can decide all of that. [00:36:52] Speaker 07: Then the federal circle decide any leftover claims on the institution. [00:36:59] Speaker 07: It seems to make perfectly good sense to me. [00:37:02] Speaker 07: Doesn't it? [00:37:03] Speaker 07: And I don't know why we would do it otherwise. [00:37:06] Speaker 07: It's not like someone is coming in and saying, as in Axon, this agency can't exist because someone wasn't appointed correctly. [00:37:15] Speaker 07: They're out of business. [00:37:16] Speaker 07: That's not what he's saying. [00:37:18] Speaker 07: He's saying the MSPB is okay. [00:37:20] Speaker 07: It's just the way the arrangement is now. [00:37:22] Speaker 07: And I'm saying, well, why wouldn't we accommodate that just by saying the MSPB does what it does, handles its claims. [00:37:28] Speaker 07: And if he thinks that can be challenged, [00:37:33] Speaker 07: on these constitutional terms, the federal circuit will decide it. [00:37:37] Speaker 08: I think the distinction in this case, although he is not challenging the existence of the board itself, he is challenging the USERRA statutes, structural review scheme of routing different claims to different bodies. [00:37:51] Speaker 08: And that challenge is what wouldn't be able to be redressed if he were to receive. [00:37:57] Speaker 07: The federal circuit, the court would redress it if this redress it. [00:38:01] Speaker 08: I think the axon instructs that because his challenge is to having to go through the board itself. [00:38:09] Speaker 07: Part of the axon concern is really the notion that this group cannot exist. [00:38:15] Speaker 07: This constitutional claim is valid. [00:38:17] Speaker 07: It cannot exist. [00:38:18] Speaker 08: If Mr. Jolly were to prevail on his claim that the board cannot hear claims brought by federal employee veterans, that aspect of its work would not exist. [00:38:31] Speaker 08: So in that way, it's the same type of claim, although on a much smaller scale, much smaller scale than Axon. [00:38:38] Speaker 04: I got you. [00:38:43] Speaker 06: All right, thank you. [00:38:43] Speaker 06: We'll give you some time on rebuttal. [00:38:46] Speaker 05: Thank you. [00:38:48] Speaker 05: hear from Mr Peters. [00:38:51] Speaker 00: You're now and good afternoon. [00:38:52] Speaker 00: May it please support David Peters for the United States. [00:38:57] Speaker 00: I think the panel here has rightly recognized that there are real questions about axons application in new context like this one, but the court doesn't need to decide that question today because the court lacks Article three jurisdiction for the reasons that Judge Child's original original question identified. [00:39:15] Speaker 00: Plaintiff's claims here are freestanding constitutional claims. [00:39:19] Speaker 00: They aren't tied to any USERRA appeal that he filed with the board or that he planned to file with the board. [00:39:25] Speaker 00: And so he just lacks standing because there's not a concrete injury to which those constitutional claims are rooted. [00:39:31] Speaker 00: Amicus seems to suggest that plaintiff filed appeals in the past and that's true. [00:39:37] Speaker 06: But if he has MSPB proceeding that is pending, [00:39:45] Speaker 06: then doesn't that tie into an injury because if he were to get relief on his constitutional claim, then that pending MSPB proceeding would then have to be, you know, [00:40:03] Speaker 06: moved to district court so to speak. [00:40:06] Speaker 00: So the only board MSPB or board appeals that are even referenced in the pleadings are these two appeals that Mr. that plaintiff filed in 2018. [00:40:16] Speaker 00: As we explained in our briefs [00:40:18] Speaker 00: Those were resolved by a properly appointed AJ in December of 2022. [00:40:24] Speaker 00: Plaintiff then had the opportunity to seek further review of those appeals before the board. [00:40:28] Speaker 00: He chose not to do so within the 35 day period. [00:40:31] Speaker 00: He then had the opportunity to file a petition with the federal circuit 60 days after that. [00:40:38] Speaker 00: chose not to do so. [00:40:39] Speaker 00: He had other appeals pending that neither plaintiff nor advocate cited, but those two have not been resolved. [00:40:45] Speaker 00: And so we are not aware, the government's not aware of any other pending appeals for the board. [00:40:52] Speaker 00: The other ones that haven't been identified, the government's understanding is that those have been resolved as well. [00:40:57] Speaker 00: We cited several in our brief in which a plaintiff sought review for the federal circuit. [00:41:02] Speaker 00: The federal circuit has uniformly rejected those claims, both on jurisdictional and merits grounds. [00:41:07] Speaker 00: And so if the only concrete injury that can be identified is that plaintiff was proceeding before the board and had some issues with that, now that those proceedings are no longer pending and those proceedings are concluding, then there aren't any injuries to redress at all. [00:41:22] Speaker 07: But he's using axon and saying he couldn't be required to do that. [00:41:26] Speaker 07: So that shouldn't count against him. [00:41:28] Speaker 07: He's saying he shouldn't have been made to process his claims for the reasons he asserts. [00:41:35] Speaker 07: That's certainly what he's saying. [00:41:37] Speaker 07: No, I'm trying to figure out what Axon means. [00:41:40] Speaker 07: Axon assumes that you can't compel, I mean, that's what the court's focusing on. [00:41:45] Speaker 07: This is an agency, an operation that can't exist and cannot be given the responsibility, if he's right on the constitutional claims, to decide [00:41:57] Speaker 07: his case. [00:41:58] Speaker 07: So why can't he say, I can't count against me on standing grounds. [00:42:02] Speaker 07: I have standing to come in as an axon and say, there's a constitutional infirmity here because of the way this is set up. [00:42:11] Speaker 07: And so the structure [00:42:14] Speaker 07: can't count against me. [00:42:15] Speaker 07: So it doesn't matter whether I dance through it. [00:42:18] Speaker 07: It just can't count. [00:42:19] Speaker 07: No. [00:42:20] Speaker 07: Oh, no. [00:42:21] Speaker 07: Don't say no to me. [00:42:22] Speaker 07: Say no to the Supreme Court. [00:42:24] Speaker 00: Fair. [00:42:25] Speaker 00: I didn't say it. [00:42:26] Speaker 00: My point is only as to the Article III question. [00:42:30] Speaker 00: Plaintiff can't come to court and just say, I think the MSPB is unconstitutional. [00:42:35] Speaker 00: That would just be an advice. [00:42:36] Speaker 07: He gave reasons. [00:42:38] Speaker 00: Of course. [00:42:38] Speaker 00: I mean, he still needs to show a concrete injury about how he's actually [00:42:41] Speaker 00: harmed by this and he hasn't shown that. [00:42:43] Speaker 07: No, when you look at the Supreme Court in Axon, they're saying the injury is being forced to use, I can't remember their exact word. [00:42:51] Speaker 00: To proceed through an administrative structure that they think is unconstitutional. [00:42:55] Speaker 00: Right. [00:42:55] Speaker 00: But in Axon, there wasn't any question that the individuals who were respondents in ongoing enforcement proceedings were being subject to those proceedings. [00:43:03] Speaker 07: And the point is- You're trying to make a distinction, which I've thought about and I don't know what to do with it. [00:43:08] Speaker 07: between an enforcement proceeding and a claim of benefit proceeding. [00:43:12] Speaker 07: I mean, in some ways, that distinction is tempting, but I don't know how far it gets you. [00:43:19] Speaker 00: I'm happy to talk about that, Your Honor, but that's actually not the point I'm trying to make. [00:43:22] Speaker 00: Well, that's the way it was coming across. [00:43:23] Speaker 00: Well, let me try to clarify that. [00:43:25] Speaker 00: The point is, even come into court in a certain axon claim that challenges the structure of the MSPB, there has to be some concrete injury or else all admit that plaintiff is asking for is an advisory opinion. [00:43:37] Speaker 07: Concrete injury is I want to seek these benefits. [00:43:41] Speaker 07: But use this situation. [00:43:43] Speaker 07: I want to seek these benefits and I'm being told because it's a federal employer, I must go through this structure and this structure is constitutionally infirm. [00:43:52] Speaker 07: Supreme Court said in Axon, you can't make me use a procedure or enforce something against me in an operation that is constitutionally impermissible. [00:44:02] Speaker 00: And certainly if plaintiff identified proceedings that he intended to bring before the board, that might be a different case. [00:44:07] Speaker 00: But if you look at the pleadings, Your Honor, [00:44:09] Speaker 00: his allegations of injury is that he lost employment opportunities because the board is unconstitutional. [00:44:14] Speaker 00: It's not clear what that means, but it's certainly not an indication that he was going to bring proceedings before the board and it was therefore subject to these unconstitutional proceedings. [00:44:23] Speaker 00: And so our point is there isn't a concrete injury. [00:44:28] Speaker 00: he had brought proceedings in the past, those proceedings are now done. [00:44:32] Speaker 07: And so to the extent that those proceedings were the kind of the- But I mean, I thought the push was he was saying, yeah, they recently were done, but they can't count against me and you're wanting to count them against me. [00:44:44] Speaker 07: You're- Can't count against me. [00:44:46] Speaker 07: So you can't say my claim, whatever they were, is moot. [00:44:51] Speaker 07: And my claim should be raised, can be raised somewhere else, not in this, [00:44:57] Speaker 00: But Your Honor, in Axon, to the extent that plaintiff and amicus are saying this is like Axon, what the court said in Axon was that the requirement to get immediate review is because there could be no relief after the proceedings are completed. [00:45:11] Speaker 00: The proceedings are now completed, so there can't be any relief that can be granted to plaintiff. [00:45:16] Speaker 07: And so the claims are just- MSDB proceedings were resolved in 2022, which was after the district court suit. [00:45:24] Speaker 07: Which is why they're moot. [00:45:25] Speaker 07: Well, the standing is measured at the time you file the suit. [00:45:28] Speaker 00: Certainly, that would be, there would be a problem if because- 2020, that's when you measure standing. [00:45:34] Speaker 00: Sir, mootness though would be that intervening events have outrun the controversy because the proceedings have been completed. [00:45:40] Speaker 07: There's, in this case- The problems are going around in circles because Axton says they can't be completed, his claim, based on his claim. [00:45:48] Speaker 07: They couldn't have been completed [00:45:52] Speaker 07: in this form. [00:45:53] Speaker 07: That's what he was claiming. [00:45:54] Speaker 07: They could not. [00:45:55] Speaker 07: I had to use it because that's what was there, but they're not really complete. [00:46:00] Speaker 00: I guess to try to reframe it slightly, Your Honor, if this court were to reverse and somehow plaintiff were to prevail on merits, which we don't think is at all any way possible for all the reasons identified, he's asked the court to [00:46:15] Speaker 00: not only to enjoin the board from appointing AJs, but also direct that his claims can be brought into district court. [00:46:23] Speaker 00: But he doesn't have any, there wouldn't be anything to enjoin. [00:46:25] Speaker 00: There aren't any more proceedings going on. [00:46:27] Speaker 00: And so there isn't any live controversy that's still pending. [00:46:32] Speaker 07: Well, I want to hear what councilman, his point in council has to say, because my understanding is, [00:46:39] Speaker 07: He is contesting the MSP proceedings, which were allegedly resolved in 2022 after the district court. [00:46:47] Speaker 07: He brought it in time to be able to say, you shouldn't make me go through this. [00:46:51] Speaker 07: That's his axon notion. [00:46:53] Speaker 07: And I don't know why he doesn't have standing in district court to pursue that. [00:46:58] Speaker 00: I'm happy to have amicus, correct me. [00:47:00] Speaker 00: Amicus' point on mootness is that there's some kind of disputed factual record. [00:47:04] Speaker 00: It's not clear what that disputed factual record is. [00:47:06] Speaker 00: It's a 2022 order of the board. [00:47:09] Speaker 00: We sign it in our brief. [00:47:12] Speaker 00: even assuming that is the argument that they are making. [00:47:15] Speaker 00: They're not saying that if these proceedings are in fact complete, that the case is not moved. [00:47:20] Speaker 00: Because if the proceedings are complete, there isn't any live controversy that Mr. The plaintiff has with the board. [00:47:26] Speaker 00: The proceedings that he says couldn't have happened. [00:47:31] Speaker 07: The proceedings that he says he can bring a district court and he's- But following axon, the axon notion is those proceedings count for nothing. [00:47:42] Speaker 07: under the Axon formulation. [00:47:44] Speaker 07: I'm not saying that should be the result here, but that's the Axon result. [00:47:48] Speaker 07: So if you're in a situation where, take the Axon infirmities, if you're in that kind of a situation, those proceedings count for nothing. [00:47:58] Speaker 00: I think what the court in Axon says is that the reason they can proceed to district court is because if the proceedings have been completing, there's no more relief that can be granted. [00:48:06] Speaker 00: And the point is the proceedings have been completed and there is no more relief that can be granted. [00:48:09] Speaker 00: And that is a quintessential mootness claim. [00:48:12] Speaker 02: the sufficient injury, the fact of being barred from the proceedings at all. [00:48:18] Speaker 00: That might be injury if there was proceedings that he identified that he was going to bring. [00:48:23] Speaker 00: Again, the only ones that we've referenced are the ones that were the only pleadings and only boarded appeals at all that here even referenced in the pleadings of the two 2018 ones. [00:48:31] Speaker 00: And those are the ones that have been resolved. [00:48:33] Speaker 07: Well, I know you obviously don't like the action ramifications, but his claim is the injury is he was forced to go through illegitimate proceedings. [00:48:45] Speaker 07: And that is a correct notion from Axon. [00:48:48] Speaker 07: That's what his claim is. [00:48:49] Speaker 07: He was forced to go through illegitimate proceedings and he wants to remedy that. [00:48:54] Speaker 07: And the way he can get remedy in his mind is for the district court now to consider his case because whatever they did over there, he's saying counts for nothing because it was illegitimate. [00:49:05] Speaker 07: That's the way the Supreme Court framed it. [00:49:07] Speaker 07: You can't shrug that off. [00:49:10] Speaker 07: That's the way the Supreme Court framed it in Axon. [00:49:12] Speaker 07: They're saying they're illegitimate, they don't count. [00:49:14] Speaker 07: And he's saying, that's the injury I suffer. [00:49:17] Speaker 07: I was made to go through that. [00:49:21] Speaker 00: That is not actually what plaintiff has pled in his pleadings. [00:49:26] Speaker 00: As we say in our brief, he didn't identify any proceedings that he was going for the court other than referencing offhand these two 2018 ones. [00:49:34] Speaker 00: But even if that were the case, and he was saying, I want to bring this in district court, he has identified what he would be bringing, like what USERRA appeals he would be bringing in district court. [00:49:42] Speaker 00: Those aren't identified in his brief. [00:49:44] Speaker 00: And this goes to the redressability point and the cause of action point that this court was raising earlier. [00:49:50] Speaker 00: If the court was to reverse and send it back down to district court. [00:49:55] Speaker 07: Are you talking about a lack of a cause of action or what are you talking about? [00:50:01] Speaker 00: If this panel was to reverse and send it back to district court, plaintiff would just then be proceeding on standalone constitutional claims. [00:50:08] Speaker 00: There wouldn't be anything at the end of the day if the court was to rule it for him. [00:50:12] Speaker 07: That's the question we've all been raising. [00:50:13] Speaker 07: Council on the other side is what's the cause of action that if he's right, that he should be able to redo it all in district court because the MSPB shouldn't have gotten its hands on it. [00:50:25] Speaker 07: You're right. [00:50:25] Speaker 07: It's a legitimate question. [00:50:26] Speaker 07: What's cause of action? [00:50:27] Speaker 00: The way that it would proceed is to say, I have a USERA appeal or I have a claim that I would like to bring before the board. [00:50:33] Speaker 00: It is a harm to me to bring it before the board. [00:50:35] Speaker 07: Cause of action is not standard. [00:50:37] Speaker 07: Cause of action is not jurisdictional. [00:50:39] Speaker 00: Certainly. [00:50:40] Speaker 00: But I'm saying the way it would arise is to say, I agree that there is not a cause of action to assert a standalone USERRA claim, because those are the kind of claims that are channeled to the board. [00:50:49] Speaker 00: I'm saying the way it would potentially arise is to have a USERRA claim, but there isn't even a USERRA claim there. [00:50:54] Speaker 00: And so if the court was to reverse and this case was to proceed, it would just be the district court issuing an advisory opinion about the constitutionality of the Merit System Protection Board. [00:51:06] Speaker 00: There's no reason, absent some kind of concrete real-life effects for plaintiff, that the court should do so. [00:51:13] Speaker 00: And that's why I agree that standing is obviously different than the cause of action. [00:51:17] Speaker 00: But it's the same problem, is that there isn't anything concrete here that's underpinning plaintiff's claims. [00:51:24] Speaker 00: And the only thing that he is cited to, or that amicus is cited to, are these proceedings that are now over. [00:51:29] Speaker 00: And so there isn't anything for the court to do. [00:51:33] Speaker 00: And that's why, again, given the uncertainty as to Axon's holding, and this court's hesitancy to extend Axon into new context, which is the Loma Linda decision, where the court was rightly cautious about extending it to a new circumstance, the court should just revoke, should reverse, sorry, should affirm on the Article III ground, [00:51:53] Speaker 02: I move into another issue in footnote to you raise the distinction between the AJ's and the ALJ's. [00:51:59] Speaker 02: I just wanted to know, has any ALJ heard any part of this matter? [00:52:04] Speaker 00: No. [00:52:08] Speaker 00: Obviously, this has been in federal court the whole time. [00:52:10] Speaker 00: The board proceedings, the 2018 ones that were referenced in the pleadings, those were all handled by AJs, not ALJs, which is another reason why this case is different than some other challenges that have risen, questions about the appointment and removability of ALJs. [00:52:27] Speaker 00: These are AJs. [00:52:28] Speaker 02: But what's the point that you're trying to make with that distinction? [00:52:31] Speaker 00: It's just that the one just to clarify that ALJs and AJs are different. [00:52:36] Speaker 00: And given that one of plaintiff's claims is the now mooted appointments claim, the fact that AJs are different than ALJs is just a further reason because AJs aren't statutorily protected. [00:52:48] Speaker 00: AJs are employees that are here cases through board regulations. [00:52:53] Speaker 00: It's just another reason to think that that appointments claim, which again is now moved for several reasons, but another reason why that claim is not meritorious. [00:53:01] Speaker 02: So just, is there anything else that plaintiff could ever allow that actually gets them in district court onto Exxon back to kind of the cause of action? [00:53:12] Speaker 02: You keep saying not this, but what is that? [00:53:15] Speaker 00: You know, it's difficult, Your Honor. [00:53:17] Speaker 00: I mean, the Exxon court emphasized the limit of its holding. [00:53:21] Speaker 00: Is there a scenario in which a party brings a claim that raises the same kind of existential structural constitutional challenges. [00:53:31] Speaker 00: Perhaps, again we've pointed out that these claims don't arise in the context of [00:53:36] Speaker 00: Axon and Jarkese too arose in the context of enforcement proceedings. [00:53:41] Speaker 00: They don't arise in the context in which a party is actively seeking redress by bringing a claim themselves. [00:53:47] Speaker 00: And there are real questions about whether Axon's holding applies here. [00:53:50] Speaker 00: For many of the reasons that Judge Wilkins asked about like an exhaustion requirement, you know, it's not clear that Axon applies in those kinds of contexts. [00:54:01] Speaker 00: Axons holding does have some of force, especially for respondents who are in ongoing enforcement proceedings who are starting the kind of existential structural claims that were at issue there that aren't really at issue here. [00:54:12] Speaker 06: So your friend on the other side makes us for Mr Jolly says. [00:54:21] Speaker 06: You know, we can't really decide this muteness issue because we don't have the ratification order. [00:54:27] Speaker 06: We don't have anything in the record about. [00:54:31] Speaker 06: Um, you know, whether all of these MSP proceedings and, you know, review in the federal circuit, etcetera have been terminated. [00:54:41] Speaker 06: We have, you know, some representations you make in your brief, but that isn't really in the record. [00:54:49] Speaker 06: What do we do about [00:54:51] Speaker 00: We cited the ratification order and provided a citation of that. [00:54:55] Speaker 00: The decisions of the MSPB and the AJs are published. [00:54:59] Speaker 00: We cited the Westlaw publications for that. [00:55:02] Speaker 00: This court all the time determines that a case is moved based on agency actions. [00:55:08] Speaker 00: But if this court [00:55:11] Speaker 00: If amicus is right, and this court thinks amicus is right, and that there really are factual questions that go to whether this case is moot, that's just another reason not to decide the axon question. [00:55:24] Speaker 00: If it's the case that there aren't, there may be the case that there aren't any claims at all that are live that can support this case of controversy, it makes no sense to then extend axon and hold it here. [00:55:35] Speaker 07: Let me give you judges. [00:55:37] Speaker 07: First instinct, one judge's first instinct to your suggestion to try and save us. [00:55:43] Speaker 07: Based on what I'm looking at in this record, if we took your advice, Mr. Jalil, we're back tomorrow. [00:55:49] Speaker 07: And his claim will be in district court, will not go to MSPB. [00:55:54] Speaker 07: He'll go to district court and say, I'm not taking this claim to district court because under Axon, [00:56:00] Speaker 07: They're constitutionally infirm. [00:56:01] Speaker 07: And so there's no pending proceeding. [00:56:04] Speaker 07: Nothing has been decided. [00:56:06] Speaker 07: I want the district court to decide my discrimination claims. [00:56:09] Speaker 07: Why would we do that? [00:56:12] Speaker 07: Well, your answer doesn't address that. [00:56:14] Speaker 07: And you're being respectfully a little naive and thinking in this case, at least based on my experience, that that's exactly what will happen. [00:56:22] Speaker 07: You'll come back again. [00:56:23] Speaker 07: And he'll just go directly to district court. [00:56:25] Speaker 07: If we wrote an opinion one sort of way, he'll come into district court. [00:56:29] Speaker 07: Really, Moot? [00:56:29] Speaker 07: Okay, I'll start again. [00:56:33] Speaker 07: What I'm saying is, why would we avoid trying to grapple with whatever it is we have to grapple with? [00:56:40] Speaker 00: Two things, Your Honor. [00:56:41] Speaker 00: First, [00:56:42] Speaker 00: The mootness and standing arguments are just foundational Article 3. [00:56:45] Speaker 00: If there isn't Article 3 jurisdiction, the court doesn't have authority to rule on it. [00:56:48] Speaker 00: And so I think it's fair to make a determination. [00:56:50] Speaker 07: I totally understand that. [00:56:51] Speaker 07: And so I think it's... And on the appointments point, I think it's moot, quite frankly, but on the others, it's not so clear to me. [00:56:58] Speaker 07: But I hear you. [00:57:00] Speaker 00: Go ahead. [00:57:00] Speaker 00: And the second one is, you know, to the extent that [00:57:04] Speaker 00: the plaintiff or another party brings kind of clearly meritless equal protection or Article 3 claim in a way that doesn't present the same sign of Article 3 defects that are present here. [00:57:18] Speaker 00: Yes, maybe then the court would have the opportunity, a district court would have the opportunity to decide Axon's application, but especially given the emphasis that the Supreme Court placed on the limits of Axon's holding, it makes sense to [00:57:34] Speaker 00: you know, to the extent that this court is going to, or any court is going to extend Axon holding. [00:57:37] Speaker 07: Well, what is the paragraph in Axon that says, don't take this too far? [00:57:44] Speaker 00: I have it right here, Your Honor. [00:57:48] Speaker 00: I believe it's page 143, Supreme Court 904. [00:57:56] Speaker 00: As to the grievance, the Court of Appeals can do nothing. [00:58:01] Speaker 00: A proceeding that has already happened cannot be undone. [00:58:04] Speaker 00: Judicial view of acts on structural constitutional claims would come too late to be meaningful. [00:58:09] Speaker 00: For many of the same reasons, we think the claims are moot. [00:58:11] Speaker 00: And then the next paragraph, the limits of that conclusion are important to emphasize. [00:58:17] Speaker 00: The government notes that many review schemes require parties to wait before appealing, even when doing so subjects into significant burdens. [00:58:24] Speaker 00: And so the acts on court was self-conscious about the limits of its holding, and that to the extent that a court is going to extend that holding, which unquestionably would be, not only because there's a new claims, but also because they arise in a new context, the court should be, I think, [00:58:44] Speaker 00: should proceed cautiously before doing that, because there is a real concern, as the panel previously recognized, that the floodgates are going to be open to any constitutional claim. [00:58:55] Speaker 07: What does the Federal Circuit do here? [00:58:57] Speaker 00: The Federal Circuit has had several claims that that plaintiff has brought to them. [00:59:04] Speaker 00: The one that we cited in our 28J was one in which plaintiff brought a USERRA appeal before the board, lost on the merits, then sought review before the Federal Circuit. [00:59:15] Speaker 00: The Federal Circuit affirmed on the merits and held that plaintiff's challenge to the [00:59:21] Speaker 00: AJ decision because the AJ was improperly appointed was also not merit was meritless because the March 2022 ratification order by the board cured any appointments defect that might have been before. [00:59:34] Speaker 07: And so that's all they didn't say anything else. [00:59:37] Speaker 00: But that was just a merits ruling as to that one. [00:59:39] Speaker 00: There have been other federal circuits, I think. [00:59:44] Speaker 00: I count more than half a dozen involving plaintiff. [00:59:49] Speaker 00: They have been marriage decisions, rejecting all marital use. [00:59:52] Speaker 00: Occasionally a jurisdictional question about like timing of whether there's been, whether plaintiff had filed the appeal in a timely manner or whether the board had jurisdiction, but not addressing the kind of outside of that example. [01:00:08] Speaker 07: The first of your argument is, [01:00:11] Speaker 07: You read the court to be saying essentially, look, if it's done, if it's already done, we have new rule now, new thinking, but we can't go back and undo what's done. [01:00:22] Speaker 07: And we're not going to say that constitutional infirmity is so grave that we're going to now go backwards. [01:00:28] Speaker 07: So if what's before us or before another court is done the way it was [01:00:36] Speaker 07: previously designed to be handled, even though we think there may be some problems with that design, we're not going to undo that. [01:00:44] Speaker 07: That's your argument? [01:00:45] Speaker 07: I just want to make sure I'm understanding. [01:00:46] Speaker 00: I think that's the implication of the argument. [01:00:48] Speaker 00: That's not obviously what was at issue in Axon, but Axon's point that in that specific context, the reason why the parties there could forgo traditional [01:01:02] Speaker 00: You know review before the agency and then in a federal in a federal court of appeals was that the nature of their extraordinary claims required immediate district court review, and that couldn't be cured at some later point. [01:01:18] Speaker 00: You know, taking that as a given. [01:01:21] Speaker 00: amicus's point is that this case is like axon. [01:01:25] Speaker 00: And our argument would be like, well, if that's really true, well, then that the proceedings are now done means there cannot be relief afforded plaintiff. [01:01:33] Speaker 00: And therefore, the claims are moved. [01:01:35] Speaker 00: And given the particular circumstances of this case. [01:01:43] Speaker 00: If there's nothing else, we just ask the court judge to be affirmed. [01:01:50] Speaker 06: All right, thank you. [01:01:52] Speaker 06: All right, Ms. [01:01:52] Speaker 06: Doty, I believe you were out of time, but we'll give you two minutes. [01:01:58] Speaker 03: Thank you, your honor. [01:02:00] Speaker 03: I just want to make two quick points. [01:02:02] Speaker 08: First, we have been addressing a lot of very tricky questions that will eventually need to be answered, whether there's a cause of action for Mr. Jolly's claims, whether he has standing and whether his claims are moot in light of the proceedings that have occurred before the board and the federal circuit. [01:02:18] Speaker 08: This court does not need to wade into any of those issues. [01:02:20] Speaker 08: It can decide the narrow issue on appeal, which is whether the district court erred in determining it lacked jurisdiction based on the court's decision in Jarkosi, and remand the issues of cause of action standing in witness to the district court for consideration in the first instance, particularly when there are questions of unresolved fact that would weigh in on those issues. [01:02:41] Speaker 07: What are the questions when we resolve that? [01:02:43] Speaker 07: Because your premise is mistaken, I think we do [01:02:46] Speaker 07: on the first instance in a lot of cases decide mootness and standing. [01:02:50] Speaker 07: We don't remand mootness and standing cases back to the district court when we have what we need. [01:02:56] Speaker 07: What do we need that we don't have? [01:03:01] Speaker 08: I think that this court needs the benefit of a fully developed record on the mootness issues. [01:03:05] Speaker 08: What has actually happened before the board? [01:03:08] Speaker 08: What were the consequences of the ratification order? [01:03:10] Speaker 07: Can't you answer for us? [01:03:12] Speaker 07: Are there any pending cases? [01:03:13] Speaker 07: before the MSPB or the federal circuit? [01:03:16] Speaker 07: I am not aware of any, but I- I mean, we would normally say council conceded that she is unaware and Jolly has asserted nothing. [01:03:25] Speaker 07: There are no pending cases. [01:03:27] Speaker 07: That is one way we would do it. [01:03:28] Speaker 07: There is nothing pending and there is nothing before the district court that raises something new. [01:03:36] Speaker 07: It's my understanding of the record. [01:03:38] Speaker 08: I do want to clarify that because I am not Mr. Jolly's counsel, there might be things that I am not aware of. [01:03:45] Speaker 08: He has not communicated with me about the substance of his claims. [01:03:48] Speaker 08: So he might have pending proceedings before the board. [01:03:51] Speaker 08: I just don't know about them. [01:03:53] Speaker 07: So I'm getting counsel's assurance that she is not aware of any pending proceedings. [01:03:58] Speaker 08: I am not aware of any pending proceedings as someone who [01:04:02] Speaker 08: would not be involved in this proceedings. [01:04:04] Speaker 07: Which I take to mean that whatever it was that he felt aggrieved on, he presented both to the MSPB and then tried to present to the district court and all of what went to the MSPB and the federal circuit is now gone. [01:04:19] Speaker 08: I am not sure if that's correct. [01:04:21] Speaker 08: I know that the district court had a separate case that Mr. Jolly brought recently. [01:04:25] Speaker 08: I believe after the district court in this case issued its decision and I don't know what the status of that case is. [01:04:32] Speaker 08: I also know that he has at least one pending cert petition before the Supreme Court and he anticipates filing another one. [01:04:41] Speaker 08: that might already be docketed. [01:04:43] Speaker 08: So I know that he's trying to do a lot of things. [01:04:46] Speaker 08: I think with respect to these same claims, I am not sure what the full extent of that is. [01:04:52] Speaker 08: But I do think that having the benefit of a full record, which the district court is well positioned to develop and to decide these issues in the first instance would be consistent with the court's practice that when there are unresolved questions of fact, or when the district court hasn't decided these issues in the first instance, [01:05:09] Speaker 08: It is appropriate to remand that question to the district court. [01:05:13] Speaker 07: See, I'm resisting. [01:05:14] Speaker 07: My gut resists that because we normally require a party who's before us in appropriate circumstances to assure us that there is some pending claim, and we assume that they know that. [01:05:26] Speaker 07: Now you're in an awkward position, and if we don't have that assurance, that will affect how we would think about mootings and standing. [01:05:32] Speaker 07: We don't need the district court to help on that. [01:05:35] Speaker 08: I understand the court's concern. [01:05:37] Speaker 08: I think that it is important to recognize that Mr. Jolly has standing over the question that is before this court, whether the district court had jurisdiction as Judge Edwards and my friend on the other side were discussing earlier. [01:05:51] Speaker 08: Axon makes clear that an injury that is alleged that challenges [01:05:56] Speaker 08: Having to proceed through the board proceedings at all is in fact an injury that is traceable to the statutory scheme and that would be redressable by a court order that says that statutory schemes unconstitutional. [01:06:09] Speaker 07: So in that way, this court can assess the jurisdictional question only with respect to situations where I think the party has something that the party is allegedly aggrieved over. [01:06:20] Speaker 07: And if the party if he comes in and just wants to make a generalized grievance, [01:06:26] Speaker 07: No, he's going to fail on standing. [01:06:28] Speaker 07: If he's arguing in the district court, I just want to make a generalized grievance that this scheme is unconstitutional. [01:06:33] Speaker 07: For these reasons, he fails standing. [01:06:37] Speaker 08: That is not what he has done in this particular case. [01:06:40] Speaker 07: That's why I'm curious to know whether there's anything pending, because then the standing issue is very serious. [01:06:46] Speaker 07: If he doesn't have anything pending, at least as I understand, Jolly has got to be something. [01:06:51] Speaker 07: I mean, as I understand the Supreme Court, it's got to be something. [01:06:54] Speaker 08: From how I read the notice, the notice that Mr. Jolly filed with this court shortly before oral argument where he attached the one of the docket entries for his [01:07:06] Speaker 08: pending Supreme Court petition that is from what I understand captioned as a petition for certiorari and or mandamus. [01:07:15] Speaker 08: And I believe that it is related to the Federal Circuit's decisions in the cases that he's challenging here I'm not, I have not looked [01:07:24] Speaker 08: in depth at that petition or discussed with Mr. Jolly how it relates to his pending proceedings. [01:07:28] Speaker 08: But I think that there is enough of a question on how that relates to his board proceedings that this court does not need to get into the movement's question. [01:07:38] Speaker 06: We've looked at that sir petition and it was denied recently. [01:07:41] Speaker 08: It was denied recently? [01:07:42] Speaker 06: Yeah. [01:07:43] Speaker 08: Well, then that might also change the position. [01:07:46] Speaker 08: He in that petition or in his notice to this court, he mentioned that he was planning to file another some type of filing before the Supreme Court. [01:07:55] Speaker 08: And I don't know what the status is on that. [01:07:59] Speaker 08: But at the end of the day, I think that this court needs only to address the specific jurisdictional issue that is an issue here. [01:08:06] Speaker 08: I think that the [01:08:09] Speaker 08: discussion that we had earlier with Judge Wilkins about the floodgates being opened in light of Axon, that exists regardless of whether this court decides this case on mootness or standing without reaching the Axon issue. [01:08:23] Speaker 08: But if the court chooses to decide the issue on appeal and determine Axon's impact on its precedent and jarkacy, that would at least provide clarity for district courts to wade through that flood. [01:08:37] Speaker 06: You want to send us a draft? [01:08:40] Speaker 06: Well, Miss Doty, you were appointed by the court to represent appellant as amicus in this case. [01:08:49] Speaker 06: We thank you for your very assistance. [01:08:52] Speaker 08: Thank you very much. [01:08:53] Speaker 06: We'll take the matter and.