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Case 125-5254, Anika Center for Human Rights, Et al., Appellants.

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This is the United States Department of Justice, Et al.

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Mr. Sturgis for the Appellants.

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Mr. Jender for the Appellates.

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Good morning, Council.

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Ms.

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Sturgis, please proceed when you're ready.

[00:00:20] Speaker 02:
Thank you, Your Honor.

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Good morning, Your Honors.

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May it please the Court, Laura Sturgis, on behalf of Appellants.

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There are many reasons why this case should be remanded.

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And I'd like to start with the one that underlies them all.

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And I think maybe the easiest way to resolve this appeal.

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The government's after the fact contradictory and self-serving declarations made in the course of litigation should not have been considered and particularly not for the purpose considered by the district court and for the purpose advanced by the government for the first time on appeal.

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That somehow that those declarations demonstrate a reason, a decision to insource or that

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turns plaintiffs' claims from January somehow into a challenge to insource long-standing, universally-loaded, congressionally-required programs that make our immigration system more efficient and fair.

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If we reach the merits of the arbitrary and capricious argument, your point has a lot of force.

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But I don't see how this bears on, say, the threshold question of whether your claims are contractual or not for Tucker Act jurisdiction purposes.

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Would you like me to answer the Tucker Act questions then and address that that merits issue?

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We do not think it's just saying the point you want to front load about considering extra record evidence doesn't seem to me to bear on the threshold issues.

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So the district court applied 1491B of the Tucker Act, the procurement leg of the Tucker Act, to find that we didn't have jurisdiction and we shouldn't be in the court of federal claims.

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That only can stand if you find that there was actually a decision to insource the programs that we were challenging.

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And if you look at the administrative record, and even if you look within the four quarters of the declarations themselves, it is clear that plaintiffs were not challenging

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a decision to insource.

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And in fact, there was no decision to insource at the time the termination was made throughout the course of- Why is that?

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I mean, your clients are subcontractors.

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They were receiving federal money.

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Now they're not receiving federal money.

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Whether the bar runs through procurement or through the provision about claims founded on contract, either way, it's a claim proceeding contract.

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Let me address that issue and and if I may I'll go back to to why I think that the declarations matter here but our plaintiffs are long standing providers of these services and in fact provided these services decades before Congress chose to.

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pass an appropriation statute requiring the executive agencies to fund these programs.

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And so we are not simply subcontractors receiving money.

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We're actually organizations that have built their entire business model, their entire mission around delivering these services.

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And it was the United States government and Congress who decided these are important and valuable services.

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We want to ensure that our immigration system has these services, and we're going to do that through longstanding appropriations.

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And so we have been relying on the ability to deliver those services, to deliver our services to detain non-citizens, and to ensure that we can continue to work on our missions.

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I mean, that's all fine, but the appropriations are operationalized through contracts.

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That's right.

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That's right.

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And so because they are operationalized through a contract or subcontract, the danger is that the executive agency could avoid any kind of judicial review for any kind of action if it were able to

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throw up the shield of a contract as a mechanism for delivering its required obligations under an appropriation statute.

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Well, that might seem like a danger from the perspective of the plaintiffs here.

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But I mean, if that's the scheme that's contemplated by Congress through the Tucker Act and the carve outs of the APA for contractual issues, then

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That just is what it is.

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That is what it is.

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And here, we think that the reason that this is very different is because we're not challenging the termination of the contract.

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We're challenging the termination of the programs.

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And so we're challenging the appropriation statute, which says, services and activities of the legal orientation program, not less than $28 million shall be spent on services and activities of the legal orientation program.

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And that has not happened.

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Why would these organizations, these providers have standing to challenge that, to challenge how the Department of Justice chooses to implement these policies?

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Back to an answer I gave to your colleague.

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I believe that our organizations, which are long-standing providers of these services, have actually developed the program at issue.

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They have standing because their entire business model, their entire mission is centered around delivering these services that Congress then said, these are the services we want to see funded.

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So that might give standing to challenge the contract terminations, but why does it give standing to challenge how the government is administering the programs?

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We're challenging the failure to administer the programs.

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But you're challenging how they're administering or, as you say, failing to administer.

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It's the same thing.

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You're suggesting that the Department of Justice is not fulfilling its statutory obligations.

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But why would the providers of that have standing?

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Where's the injury?

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So the injury is in the very direct and perceptible impact on our organizational mission, our ability to conduct our business activities.

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And we are mission driven to provide these services.

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We have done so long before Congress appropriated the funds for this and created the requirement on the executive to deliver these programs.

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And we have done so

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in reliance on private funding, and now we have done so in reliance on federal funding.

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But regardless of the funding source, what we have done so in reliance on the ability to deliver these services in detention centers at immigration courts.

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And since the termination of the programs, we have not been able to do so.

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Is there anything in the statute that requires the government to outsource these services?

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There's nothing in the appropriation statute that specifically says.

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Or any statute?

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So there's no obligation for the government to outsource, is there?

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There is, I would argue that there is a strong indication that Congress intends for these programs to be outsourced.

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That's not an issue I think before this court or on this appeal, but I think there is a strong indication that Congress intended for these services to be provided by

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But your injury, the fact that you are unable to get government funding for this, the injury that you just claimed, depends on a prior legal conclusion that outsourcing is required.

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If there's no legal obligation to outsource, then again, I'm not sure where these providers have an injury.

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So I think it's not the lack of funding that is our injury.

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That is a

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outcome of the termination, but it is the interference of our ability to deliver these services and the fact that these services are not being delivered and that we have the inability to go in and deliver them since program termination.

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So that's not the theory of standing on which the district court decided you have standing.

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Correct.

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The district court focused on the fact that you were losing the opportunity to compete.

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That's right.

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And so going back.

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Do you not think you have standing on that basis?

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Why is that not part of your argument?

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The reason why it's not part of our argument here is because we don't think that that specifically relied upon finding that we were challenging an insourcing of a federalized program here.

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And we don't think that was in the record.

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We don't think that is happening.

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And that should not be a basis for

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finding that we have standing or not because we're not here to complain about the opportunity to compete for procurement.

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This is simply not a procurement setting at all.

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You're avoiding that theory because it cinches up standing for you, but it runs you right into the Tucker Act.

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So what is your best

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theory of injury that does not depend on the money and access and privileges that come from being a government subcontractor.

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So our organizations, let's take Florence Project, it was one of the very first organizations to start these programs and

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Since this and it developed its organization, its staffing, its programming based on its ability to deliver particularized services to detain non-citizens.

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After years of doing so and doing so very well, Congress said, this looks like a great program.

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This is helping our immigration courts.

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And we like what it's doing.

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Let's have a pilot program.

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And then eventually, let's put this as part of our congressional appropriation.

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And since 2003, Congress has authorized money every year for this particular program.

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And what's happening now that it's terminated.

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They're doing all of that through government contracts.

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They're doing all of that, all of those great things that you say they've been doing for 20 years, they've been doing through government contracts.

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Regardless of whether they terminate a contract or not, though, there is still an APA right of review of agency action.

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behind that contract is the agency action to terminate those programs.

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If the government actually were delivering services and were providing the services and activities of the legal orientation program, this would be a different case.

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but that's not the case before you.

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The case before you is that these services have been terminated, the activities have been terminated, and our organizations who have been providing these activities and services and activities for years are unable to do so.

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They have had to... The district court here found that there was no termination, and that was a factual finding by the district court.

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I don't know that... Why is that clearly erroneous?

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I don't think there was a factual finding that there was termination, but I do think that there was a reliance upon the after the fact declaration that actually... Part of the problem in a number of these suits is that there's new administration comes into office and they're looking at programs to change and then a lawsuit is brought within days

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of the new administration coming into office.

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And then there's changing facts on the ground.

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And I think the district court properly took into account that this was an evolving situation.

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Why was that error?

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So I think that that was not error if the purpose of evaluating the changing circumstances on the ground was going toward what the actual agency action was at the time.

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That's where we requested discovery.

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And that's where we said we have the opportunity to test the in court statements, the in litigation statements made only in response to our motion for summary judgment to find out if that is true, especially where that statement

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was in particular contrast to the same declarant statement in the administrative record.

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That declarant statement said it is made only for purposes of a motion for summary judgment.

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That statement in court, the US attorney said, is only made for purposes of the impoundment issues and was not anything reflecting the actual decision at the time.

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And then for the court to say that was the decision that was made and the plaintiffs are challenging, we think is error.

[00:12:34] Speaker 05:
Can I ask, the appropriation law says not less than $28 million shall be available for services and activities provided by the Legal Orientation Program.

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And your claim at the end of the day on the merits is whatever's going on, it's not the Legal Orientation Program.

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The services provided by the Legal Orientation Program are not actually being provided.

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That's, I think, the essence.

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Correct.

[00:13:01] Speaker 05:
As I understand it from per your exchange with Judge Rao earlier, you're not saying that what the law means is that the services are provided by the legal orientation program that has to be provided by an outside contractor.

[00:13:16] Speaker 02:
We are not saying that.

[00:13:17] Speaker 05:
You're not saying that.

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So in theory, the services could be provided internally.

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In theory, meaning the theory of your claim.

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I'm trying to give you the benefit of your- Fair.

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Thank you, sir.

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So I'm just saying, so for purposes of your claim, you're not saying the law, when it discusses services provided by the legal orientation program, it doesn't mean to say,

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that has to be by an outside entity.

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The law allows for the possibility that it's done by the government itself.

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I think the law would allow for that to be conducted by the government itself under the same standards that any agency action would be evaluated, that there was a reasonable basis and it wasn't arbitrary and capricious and that it was meeting the language of the appropriation.

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And then what is the something

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But for this, it's true for both of your sides, both your side and the government side.

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I think everybody agrees that services and activities provided by the Legal Orientation Program means something.

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It's a limiting principle.

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You can't just provide something that has nothing to do with these services at all and call it services and activities provided by the legal orientation program.

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On the other hand, I take it you wouldn't say that the exact services provided at a specific site by a specific contractor is bound up in the statute.

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And if you don't do that, then you violated the statutory contemplation that $28 million shall be available for services and activities.

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So what's your principle for

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drawing the line.

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What is it that's essential to being the services and activities provided by the Legal Orientation Program so we don't get down to that level of detail?

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We're already past that it has to be done by an outside entity.

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It can be done internally.

[00:15:08] Speaker 05:
If we're past that, then what is it that says that as a statutory matter, this just isn't the services and activities provided by the Legal Orientation Program?

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In order for that to happen, it would have to be

[00:15:21] Speaker 02:
So not only do we have the history, the long history of decades of what the services look like to look for, and even if we're not looking at the very specific what's happening in a particular detention center on a particular day, we certainly know that services and activities of the Legal Orientation Program, at least as of 2019, the last time we have the appropriation statute that used that language,

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What was going on was the legal orientation program providing in-person one-on-one individual information to detain non-citizens, the legal orientation program for custodians, providing that for the custodians of unaccompanied minors, and the immigration help desk happening at immigration courthouses to provide information for detained non-citizens.

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So those three general programs

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are the services and activities of the legal orientation program.

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How those are delivered and how those may look day to day certainly change.

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And in fact, we've seen during COVID some of the way those services were delivered had to change.

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And in fact, Congress said back in person, it's much more effective to have them in person.

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But we've seen them evolve.

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We've seen them develop.

[00:16:34] Speaker 05:
Do you think the statute requires in person?

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The appropriations law requires in person?

[00:16:38] Speaker 02:
I don't think the appropriations law requires in person.

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And that is your claim.

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Your claim ultimately is about what the appropriation law requires.

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Yes.

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Because that's how you get to, that's your theory about how you avoid making it a contract claim is that we're just talking about what the law requires.

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And what the law requires independently of any contract claim is this.

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And so it doesn't have to be in person.

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What does it have to be?

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Effective, right?

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They have to be effective.

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They have to be delivering these services to,

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detained non-citizens in a meaningful way.

[00:17:10] Speaker 02:
And that's the language from 2003, from when the, even before that, with the pilot program, the purpose of the services and activities of the legal orientation program are certainly to make the immigration courts more efficient and to provide information, provide the modicum of due process, the very bare minimum of due process for detained non-citizens going through the immigration system.

[00:17:35] Speaker 05:
So, Ruth, it gets to whether these are effectively, that's the nub of your argument, is that what the statute contemplates is it has to be effectively providing the services, and if it's not providing the EXA, effectively providing the services.

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based on various contextual considerations, then it's a violation of the appropriation law.

[00:17:52] Speaker 02:
Well, I understand your questions.

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And I guess I would say that rather than putting a point on where the line is drawn, I'd like to say they're not happening here.

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And I think it's very clear.

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Or if they are, that's why this is not appropriate for this court to decide.

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And this is a factual issue that should be before the district court.

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There has been no evidence that there is some

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services happening and where that line should be drawn.

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There is only a clear indication that the federal government decided to terminate these programs and then in the course of litigation decided to claim insourcing and only on appeal, not even at the district court, say that that insourcing was actually a decision at the time.

[00:18:38] Speaker 02:
I don't want to cut off your question.

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If you want to push on where that line is, I would just say that we have not had need to evaluate whether what is happening actually would meet the requirements of the statute because we would say nothing is happening.

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And it's clear that the services and activities of the legal orientation program are not occurring.

[00:19:02] Speaker 03:
You're trying

[00:19:06] Speaker 03:
very skillfully to frame this as a shutdown case.

[00:19:10] Speaker 03:
And we've had a fair amount of experience the last few months with shutdown cases.

[00:19:15] Speaker 03:
Just off the top of my head, you can think of two kinds of plaintiffs whom we've let into court for shutdown claims.

[00:19:26] Speaker 03:
One is in the CFPB case, consumers of agency services, and another in the

[00:19:35] Speaker 03:
Voice of America cases at the stay stage, it was contractors who were specifically mentioned by name in the earmark.

[00:19:48] Speaker 03:
You have neither of those features, which seems to make things pretty difficult for you.

[00:19:55] Speaker 03:
Is there

[00:19:58] Speaker 03:
or a contractor or subcontractor getting to litigate the shutdown case?

[00:20:05] Speaker 02:
Well, I would say I think it's two different issues.

[00:20:08] Speaker 02:
The first issue is standing.

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And I think the standing here is clear.

[00:20:13] Speaker 02:
And I think that even the district court acknowledged that there's standing here by even putting aside.

[00:20:19] Speaker 03:
In my mind, it's both.

[00:20:21] Speaker 03:
It's both.

[00:20:22] Speaker 03:
Because your open and shut theory for standing runs you into the Tucker Act.

[00:20:28] Speaker 03:
So you have standing as a subcontractor.

[00:20:31] Speaker 03:
No question about that.

[00:20:32] Speaker 02:
I think we have standing as a pre-existing provider of these services as a organization whose missions were to deliver these services and whose missions now have been thwarted by government action.

[00:20:47] Speaker 02:
And I think that is exactly the case in Hippocratic Medicine that said these kinds of organizations still have standing when you have a direct and

[00:20:57] Speaker 02:
perceptible impact on business operations because of government action and it is not only through our status as subcontractor but it is through our status as providers of these services.

[00:21:09] Speaker 02:
Thank you.

[00:21:11] Speaker 05:
Make sure my colleagues don't have additional questions at this point.

[00:21:14] Speaker 05:
We'll give you some time for rebuttal.

[00:21:15] Speaker 05:
Thank you guys.

[00:21:26] Speaker 04:
Janda.

[00:21:27] Speaker 04:
Good morning, Your Honor.

[00:21:28] Speaker 04:
May it please the court, Sean Janda for the federal government.

[00:21:31] Speaker 04:
I think it's helpful to start, as the district court did, by being very clear about the specific agency actions that are being challenged in this case.

[00:21:39] Speaker 04:
And I take there to be sort of two different specific actions.

[00:21:42] Speaker 04:
So first is the termination of the various task orders under the Acacia contract.

[00:21:49] Speaker 04:
And then second is the way the agency is providing legal orientation services on an ongoing basis.

[00:21:56] Speaker 04:
And sort of separating them apart in that way, I think it's pretty clear to see why each fails as the district court held.

[00:22:03] Speaker 04:
I mean, so when talking about the contract terminations, I think there are two independent barriers in section 1491 that make clear that any decision or any claim challenging the termination of those task orders, if it can be brought at all, has to be brought in the court of federal claims.

[00:22:20] Speaker 04:
And then taking the contract termination off the table, if what you're left with is just a challenge to the way the agency is continuing to provide services to beneficiaries today, there's just a sort of, this is the wrong plaintiff to bring that claim.

[00:22:34] Speaker 04:
They don't have standing to challenge this sort of ongoing agency action that doesn't affect the organizational plaintiffs, that doesn't directly regulate the organizational plaintiffs once you take the contract piece of it off the table.

[00:22:46] Speaker 05:
And so I think- Can I ask you that,

[00:22:49] Speaker 05:
I don't know where this fits within your framework of having two boxes.

[00:22:53] Speaker 05:
But suppose what the agency says is, we're not going to do the legal orientation program anymore.

[00:23:00] Speaker 05:
We're still going to do some services in this area.

[00:23:02] Speaker 05:
We're going to do some stuff.

[00:23:04] Speaker 05:
But it's just not going to be the legal orientation program anymore.

[00:23:07] Speaker 05:
And I know your argument, obviously, we will resist that hypo, but it's just a hypo.

[00:23:13] Speaker 05:
So if that were the predicate against which we were litigating this case,

[00:23:18] Speaker 05:
Would you still have your 1491 arguments?

[00:23:21] Speaker 04:
So I think so, but certainly.

[00:23:25] Speaker 04:
Well, number one, I think you have to isolate the actual agency action, not just sort of the amorphous determination or decision.

[00:23:33] Speaker 04:
And so to the extent that the action that's being challenged is the termination of particular contractual instruments, then challenges to that action have to go.

[00:23:41] Speaker 05:
Let's suppose that's how they implement it.

[00:23:43] Speaker 05:
So they say, we're not going to do this legal orientation program anymore.

[00:23:46] Speaker 05:
We're not going to abandon everything associated with it.

[00:23:50] Speaker 05:
I mean, we'll do some stuff internally to make sure that these

[00:23:53] Speaker 05:
proceedings aren't an entire sham, but we're not going to give the full robust array of stuff that's bound up in what we consider the legal orientation program.

[00:24:01] Speaker 05:
We get that there's going to be a challenge to that, that it's in violation of the appropriations law.

[00:24:04] Speaker 05:
We think we can withstand that.

[00:24:05] Speaker 05:
We can abound.

[00:24:06] Speaker 05:
I mean, there's just things that are not on the table here, but let's just assume this for purposes of just elucidating what's bound up in your 1491 argument.

[00:24:13] Speaker 05:
And so that's the nature of the claim.

[00:24:14] Speaker 05:
And then somebody comes in and says, hey, the appropriations law requires that you do this program.

[00:24:19] Speaker 05:
You're just not doing the program anymore.

[00:24:21] Speaker 05:
And then they say, the agency says, the way we're going to implement that is, of course, we're going to get rid of the contracts.

[00:24:26] Speaker 05:
Got to terminate the contracts because we're not doing the program anymore.

[00:24:28] Speaker 05:
So that's exactly part of what is being done.

[00:24:31] Speaker 05:
The final agency action, you can say, it's the elimination of the contracts is informed by the edict that we're not going to do this program anymore.

[00:24:37] Speaker 05:
Would you still say, well, that's a Tucker Act?

[00:24:40] Speaker 05:
It has to go to the court of claims.

[00:24:41] Speaker 04:
And I think if the final agency action that's being challenged is the termination of the contractual instruments, then you're in the court of federal claims.

[00:24:48] Speaker 04:
If someone came in and said, you know, take the termination of the contracts off the table.

[00:24:52] Speaker 04:
I'm a beneficiary of these services and you're just not providing them at all right now.

[00:24:56] Speaker 04:
And I think the statute entails me to sort of this particular service and however you do it, you have to provide it.

[00:25:02] Speaker 04:
I think that claim might well proceed in district court.

[00:25:05] Speaker 04:
And that person might well standing to raise that sort of claim.

[00:25:09] Speaker 04:
And the problem here is that these organizations are not the beneficiaries of these services.

[00:25:13] Speaker 04:
And so once you take the contract termination issue off the table, there's just nothing left to their recognizable or addressable injury in this case.

[00:25:22] Speaker 04:
And so whatever might happen in a different suit brought by someone who thinks that services that they're entitled to aren't being provided

[00:25:30] Speaker 04:
That's just not claimed at these points.

[00:25:32] Speaker 05:
So then it just goes to standing.

[00:25:34] Speaker 05:
I mean, it just seems to me that conceptually, it has to be the case that if the agency decides that the programs, we're just not going to need the program anymore.

[00:25:41] Speaker 05:
And yeah, part of the way we're going to do that is get rid of the contracts.

[00:25:45] Speaker 05:
There's all kinds of things we need to do to disband the program, but we're just not going to do it anymore.

[00:25:49] Speaker 05:
We'll continue to do some stuff in-house that services in the area, but we acknowledge that it's not the program anymore.

[00:25:53] Speaker 05:
then there is definitely a challenge to that that is not going to the Court of Claims.

[00:25:58] Speaker 05:
Who the party is that should bring that challenge might be an issue, but you don't dispute that there is a challenge to that decision, the web of decisions that results in that state of affairs that's challengeable outside of the Court of Claims.

[00:26:13] Speaker 04:
I do think the court really has to be careful.

[00:26:15] Speaker 04:
I mean, again, this court doesn't review sort of webs of decisions.

[00:26:19] Speaker 04:
It reviews specific actions.

[00:26:21] Speaker 04:
And so when you're talking about the contract termination,

[00:26:24] Speaker 04:
That's the court of federal claims.

[00:26:26] Speaker 04:
If there is a separate challenge, if someone says, you know, these services are being provided at all, and I'm a beneficiary, I don't care about the contract, but I'm a beneficiary, that person may well have standing and they may well be able to plead a sort of statutory contrary to law for 7061 type claim to proceed to district court, but that's just not.

[00:26:46] Speaker 04:
These aren't the right plans.

[00:26:48] Speaker 05:
Well, all I'm saying is by web of decisions is not this almost challenge of the web of decisions.

[00:26:52] Speaker 05:
All I'm saying is that decision might well be implemented by terminating the contracts, but you don't have to challenge the termination of the contracts.

[00:27:00] Speaker 05:
You can challenge the decision not to have the contracts.

[00:27:03] Speaker 05:
You can challenge the decision that just says, you're just not doing the program anymore.

[00:27:06] Speaker 05:
You've decided.

[00:27:08] Speaker 05:
You're not doing the program anymore.

[00:27:10] Speaker 05:
And yes, you implemented that by getting into the contracts, but you decided not doing that anymore.

[00:27:14] Speaker 05:
And then it's a question of whether who's the right person to bring that challenge.

[00:27:18] Speaker 05:
I take it.

[00:27:19] Speaker 05:
That's what your point is, is if that's the challenge, if it's not about the termination, the contract per se, even though the termination, the contract is the way that it's implemented.

[00:27:28] Speaker 05:
It has to be.

[00:27:29] Speaker 05:
in order to actually have an effective termination of the program as opposed to the termination of a contract, it has to be implemented through terminating contracts.

[00:27:37] Speaker 05:
That kind of challenge can still be brought, but it has to be somebody other than the plaintiffs here.

[00:27:44] Speaker 04:
court would really need to focus on the particular agency action as sort of the district court here did and I think there are sort of multiple agency actions that are being wrapped together in this case and sort of the challenges fail for different reasons but you could certainly imagine a case where someone say a beneficiary of the services brings a challenge predicated sort of entirely on the statutes and we haven't argued in this case that sort of that challenge would be

[00:28:09] Speaker 01:
can I ask you maybe a somewhat related question, which is, is the termination of a government contract or peer determination of a grant an agency action within the meaning of the APA at all?

[00:28:23] Speaker 01:
I mean, is a contract termination, a government contract termination an agency action under the APA?

[00:28:30] Speaker 04:
So we haven't briefed that issue or looked at it.

[00:28:32] Speaker 04:
I mean, the definition of agency action in the APA is pretty capacious.

[00:28:38] Speaker 04:
But we haven't raised any argument about that.

[00:28:41] Speaker 01:
I know.

[00:28:41] Speaker 01:
I'm interested in the government's thought about that.

[00:28:45] Speaker 04:
To my knowledge, I don't know if we have developed a position on that.

[00:28:48] Speaker 04:
So I certainly wouldn't want to get ahead of my skis on that question.

[00:28:51] Speaker 04:
I think it would be very hard to imagine, particularly in these sorts of circumstances, a challenge to a contract termination

[00:28:58] Speaker 04:
that could proceed in district court.

[00:29:00] Speaker 04:
I mean, that to the extent that what you're really trying to do is restore your contract.

[00:29:04] Speaker 04:
I think the Supreme Court has made clear, the score has made clear, that that's a claim that has to go to the Court of Federal Claims.

[00:29:08] Speaker 01:
And then would the Court of Federal Claims review it under the APA?

[00:29:12] Speaker 01:
Or whether it was reasonable, arbitrary and capricious?

[00:29:15] Speaker 01:
Is that even susceptible, whether in district court or in the Court of Federal Claims, to APA review at all?

[00:29:22] Speaker 04:
I don't think the Court of Federal Claims will apply the APA as such.

[00:29:26] Speaker 04:
So if you bring a contract termination action under 1491A in the Court of Federal Claims, you are bringing a breach of contract claim, an APA claim.

[00:29:34] Speaker 04:
And the extent to which a reasoned explanation is required is sort of a question of federal contract law.

[00:29:42] Speaker 04:
And the Court of Federal Claims will apply those federal contract standards.

[00:29:45] Speaker 04:
This works in that.

[00:29:46] Speaker 01:
Maybe the Tucker Act is inconsistent with thinking about a grant termination as an agency action.

[00:29:52] Speaker 01:
Because once you go to the Court of Federal Claims, then the APA is not applicable.

[00:29:58] Speaker 04:
I think the clear import of the Tucker Act and its limitations on review is that Congress wanted contract terminations to be challengeable as contract terminations, as breach of contract claims in actions for damages in the Court of Federal Claims.

[00:30:13] Speaker 04:
challengeable under the APA.

[00:30:15] Speaker 04:
And whether they get there by, whether you get there by saying that the APA excludes contract terminations from its definition of agency action, or just by saying that this whole scheme sort of impliedly crowds out the APA, I'm not sure it matters that much.

[00:30:30] Speaker 04:
The one sort of caveat to that answer is that 1491B, which applies, or which provides the basis for jurisdiction over a challenge to certain procurement related decisions, which we think applies in this case,

[00:30:41] Speaker 04:
actually does incorporate APA standards of review to those procurement decisions.

[00:30:46] Speaker 04:
And so, and sort of inductive and declaratory relief is available in those claims.

[00:30:52] Speaker 04:
And so, if you're bringing a 1491B claim, I think it looks a little bit more like an APA claim, although perhaps adjusted for the particular context of procurement and government contracting.

[00:31:02] Speaker 04:
If you're bringing up 1491A claim in the court of federal claims, that's just a breach of contract claim.

[00:31:07] Speaker 05:
What are the 1491, in this context, the district court relied on 1491B?

[00:31:11] Speaker 05:
And so what would happen?

[00:31:13] Speaker 05:
Is the 1491B action that would go forward in the Court of Claims, is it the same action?

[00:31:19] Speaker 04:
So it's, I think, different in at least one respect, which is that, as we said in our brief, the Anbang Federal Circuit just held, I think the day before we filed our brief, that subcontractors cannot bring 1491B claims in the Court of Federal Claims.

[00:31:34] Speaker 04:
So these particular

[00:31:35] Speaker 04:
plaintiffs could not bring a 1491B claim in the court of federal claims.

[00:31:40] Speaker 04:
If the prime contractor brought a 1491B claim, then that would be a claim that is reviewed.

[00:31:47] Speaker 04:
1491B says, sort of according to the standards laid out in the APA.

[00:31:53] Speaker 04:
And so we cite this Impreza case in our brief, which is a 1491B case in the federal circuit.

[00:32:01] Speaker 04:
that case goes through how that standard of review is applied in the particular context of procurement decisions.

[00:32:08] Speaker 05:
So go to the Court of Claims because it's what's related to procurement under your theory.

[00:32:13] Speaker 05:
But then the Court of Claims analysis would be exactly the same analysis that any APA court would conduct in the kind of garden variety stuff that we do here.

[00:32:24] Speaker 04:
I mean, 4921B says that in reviewing a 4921B claim, the court of federal claims applies the standards set forth in the APA.

[00:32:33] Speaker 04:
I think the court of federal claims application of those standards is certainly informed by the procurement context and by the broad discretion that agencies have in the procurement context to

[00:32:46] Speaker 04:
switch suppliers to in-source to terminate procurement contracts.

[00:32:50] Speaker 04:
So I don't want to say it would look exactly the same as a sort of garden variety APA suit in district court in a different context.

[00:32:57] Speaker 05:
I mean, I think you'd be arguing here that there's a lot of discretion associated with those kinds of decisions too, right?

[00:33:02] Speaker 05:
So I'm not sure it looks all that different.

[00:33:04] Speaker 05:
I mean, you might be right that 1499B shunts the claim to the court of claims.

[00:33:09] Speaker 05:
I'm just not sure.

[00:33:10] Speaker 05:
what the actual difference is.

[00:33:12] Speaker 05:
It's just a venue.

[00:33:13] Speaker 05:
It just goes forward in a different venue.

[00:33:15] Speaker 04:
I think the 1491B arose because before 1491B was enacted, district courts and the Court of Federal Claims were both exercising concurrent jurisdiction over procurement-related suits, and Congress just wanted to centralize review of procurement disputes in one court.

[00:33:29] Speaker 04:
So I think a 1491A claim probably looks a lot different from an APA claim.

[00:33:34] Speaker 04:
A 1491B claim I think is going to look a lot more similar to an APA claim.

[00:33:40] Speaker 05:
Maybe getting some differences in how the API standards applied given particular context.

[00:33:44] Speaker 05:
So you think what happened is that Congress thought that the initially these claims could be brought in either form.

[00:33:51] Speaker 05:
And then then there's the statute that says that, okay, these procurement related claims are going to be brought only in the court of claims.

[00:34:00] Speaker 05:
And then the idea is that if you're not within the compass of 1491 B, then you can't bring it in either like the subcontractors.

[00:34:09] Speaker 04:
Right.

[00:34:09] Speaker 04:
I think what we say is that 1491 B by providing a particular reticulated scheme, exclusively in the core federal claims for.

[00:34:18] Speaker 04:
this category of suits challenging procurement decisions.

[00:34:21] Speaker 04:
Congress has at least impliedly precluded district court jurisdiction even over sort of suits that don't fall within the specific grant of jurisdiction, for example, suits brought by subcontractors.

[00:34:33] Speaker 04:
I mean, the same way this court has said that the Tucker Act might give you a damages remedy for breach of contract claim has impliedly precluded your ability to go to district court and seek a specific performance or injunctive or declaratory relief on a contract.

[00:34:47] Speaker 04:
I'm at the point that Congress has made decisions about the limitations that.

[00:34:52] Speaker 05:
This is about who can actually even bring a claim at all.

[00:34:57] Speaker 05:
And so not not what you can get in your claim.

[00:35:00] Speaker 05:
And so your theory is that.

[00:35:02] Speaker 05:
a subcontractor who, by hypothesis, has Article III standing, so at least has a degree of interest to satisfy that criterion, still is not an interested party for purposes of 1491b.

[00:35:14] Speaker 05:
So they can't come into district court, even though they have standing, they can't go to the court of claims because they're a subcontractor, so they're outlawed.

[00:35:20] Speaker 04:
I mean, I think they can't bring a 1491B claim in the court of federal claims.

[00:35:25] Speaker 04:
Congress, by restricting 1491B review to interested parties, the federal circuit just held what was trying to exclude subcontractors from the ability to bring a 1491B claim.

[00:35:36] Speaker 05:
They would obviously say they're not bringing a 1491B claim.

[00:35:39] Speaker 05:
They're trying to bring a claim that doesn't have anything to do with 1491B.

[00:35:42] Speaker 05:
But you would say, well, you have to be seen as bringing a 1491B claim because it has something to do with procurement.

[00:35:47] Speaker 04:
I mean, yes, and I think false squarely within the language for the sorts of claims that it covers.

[00:35:56] Speaker 04:
And I think it would be exceedingly strange to think that Congress, who was trying to centralize all review of procurement to procurement related decisions in the court of federal claims.

[00:36:05] Speaker 04:
would have allowed subcontractors to bring those claims in district court.

[00:36:10] Speaker 04:
I mean, it would sort of entirely disrupt the scheme that Congress enacted trying to move those claims to the court of federal claims and very much out of district court where they had been heard before 1996.

[00:36:21] Speaker 04:
And they haven't raised any argument in this case that they can get out of 1491B on that basis.

[00:36:30] Speaker 04:
So I don't think this court needs to consider that.

[00:36:33] Speaker 03:
The district court seemed to distinguish for jurisdictional purposes between a termination and an insourcing.

[00:36:43] Speaker 03:
And I'm hustling over that a little bit.

[00:36:49] Speaker 03:
Why would it matter?

[00:36:51] Speaker 03:
You're a subcontractor.

[00:36:54] Speaker 03:
You're getting money from the government.

[00:36:57] Speaker 03:
Situation number one, they say, we're not going to fund you anymore.

[00:37:01] Speaker 03:
And oh, by the way, we're just not going to fund anything.

[00:37:05] Speaker 03:
Situation number two, they say, we're not going to fund you anymore.

[00:37:12] Speaker 03:
And by the way, we're going to just do this thing in the house.

[00:37:16] Speaker 03:
Why is that?

[00:37:18] Speaker 03:
Why would that matter for purposes of whether that's the subcontractor either has standing or has to go to the court of federal claims?

[00:37:29] Speaker 03:
Seems like the injury is the same.

[00:37:31] Speaker 04:
Yeah, we don't think that matters.

[00:37:33] Speaker 04:
Certainly not for 1491 B purposes.

[00:37:35] Speaker 04:
I think in our view, they are alleging violations of statutes in connection with the procurement.

[00:37:42] Speaker 04:
And that's true regardless of whether.

[00:37:44] Speaker 03:
Was the district court wrong to reach the merits on the.

[00:37:50] Speaker 03:
What was it the.

[00:37:52] Speaker 03:
the ICH claim?

[00:37:55] Speaker 04:
Yes.

[00:37:55] Speaker 04:
I mean, I think in our view that the whole suit is precluded as a matter either of 491A or 491B, or as a matter of standing, if you separate it out.

[00:38:05] Speaker 04:
And just to highlight on that, I do think that that means, or one consequence of that, is that the court doesn't need to consider the declarations to reach that result.

[00:38:15] Speaker 04:
So to the extent that there's

[00:38:17] Speaker 04:
Uncertainty about whether the declarations are properly considered, even on the jurisdictional piece of things.

[00:38:23] Speaker 04:
I think we can disregard them and just say, regardless of what comes after procurement contract termination, it is swept into 14 and 1B.

[00:38:34] Speaker 05:
Can I ask you on the standing?

[00:38:35] Speaker 05:
So the

[00:38:36] Speaker 05:
If we think that somebody could bring the claim because you're not challenged to the termination, the contracts, but you're challenging at the threshold, whether there's been an elimination of the program and there was a decision to eliminate the program and that's being challenged.

[00:38:47] Speaker 05:
Then.

[00:38:49] Speaker 05:
What's your response to the theory of standing heard earlier, which is that this is essential to what we do.

[00:38:57] Speaker 05:
It's core to what we do and therefore elimination of the program has the kind of theory of injury that suffices under Hippocratic and that line of.

[00:39:08] Speaker 04:
Yes, I think if you take the contract termination piece off the table, and so you assume for the moment that they're not getting money as a result, they're not getting funds, then it's a dispute about sort of how well or poorly the government is providing services to third parties.

[00:39:23] Speaker 04:
And there's just no cognizable interest.

[00:39:25] Speaker 04:
I mean, that's sort of

[00:39:26] Speaker 04:
I think exactly what Alliance says is that when the government is acting with respect to third parties, they are not the plaintiff, just because the plaintiff alleges kind of a mission-based interest in those third parties receiving particular services or being acted on in a particular way.

[00:39:42] Speaker 04:
And even if the plaintiff says, I'm going to choose to spend my own resources to step into the gap to provide what I think ought to be provided, that's not a cognizable theory of standing.

[00:39:56] Speaker 04:
Instead, the person who is standing in that instance is the beneficiary of the services who thinks that they're not being provided proper services or appropriate services, not the third party that has kind of this mission-based interest in other people receiving services from the government.

[00:40:14] Speaker 04:
And I think that flows directly from alliances' rejection of that kind of diversion of resources theory of standing.

[00:40:23] Speaker 05:
I'm sure my colleagues have additional questions for you.

[00:40:25] Speaker 05:
Thank you.

[00:40:25] Speaker 05:
Thank you, Mr. Janet.

[00:40:29] Speaker 05:
Mr. Just will give you three minutes for the rebuttal.

[00:40:35] Speaker 02:
Thank you, Your Honors.

[00:40:37] Speaker 02:
My colleague started with saying, no, let's be clear what the agency action is here.

[00:40:42] Speaker 02:
And I think that's one of the biggest reasons why this case should be remanded to the district court, because it is far from clear, at least according to the government's perspective, what the agency action is.

[00:40:53] Speaker 02:
We actually do think it's very clear from the administrative record that the agency action was

[00:40:57] Speaker 02:
determination of these programs, the decision to stop providing these programs.

[00:41:01] Speaker 02:
But the district court's order and the government's argument on appeal is now that Director Owen's declaration coming in the context of litigation somehow changes that agency action.

[00:41:12] Speaker 02:
And we think that in itself is reason to go back to the district court.

[00:41:18] Speaker 02:
If you isolate that agency action, there is only one way to define this case.

[00:41:23] Speaker 02:
And that is that the agency action was termination and not some kind of phantom insourcing that comes only in the context of litigation.

[00:41:31] Speaker 02:
In terms of who can bring a claim to challenge this termination, appreciating my colleague's explanation that a beneficiary of these services could bring a claim.

[00:41:44] Speaker 02:
And I don't want to argue in hypotheticals, but a beneficiary, a detained non-citizen, can only bring claims for due process violations in immigration court.

[00:41:53] Speaker 02:
And so there's a reason why you don't see beneficiaries bringing claims against agency actions like this here.

[00:41:59] Speaker 02:
And as you also heard, we could not bring a 1491B claim in the Court of Federal Claims because of our status as a subcontractor.

[00:42:08] Speaker 02:
I will say I think that is a red herring anyway.

[00:42:11] Speaker 02:
It doesn't matter that we're a subcontractor or not here.

[00:42:13] Speaker 02:
It doesn't matter.

[00:42:14] Speaker 02:
This just is not a 1491B case.

[00:42:18] Speaker 02:
There is no violation of our procurement statute.

[00:42:21] Speaker 02:
The government's read of 1491B essentially wipes out

[00:42:25] Speaker 02:
District Court review and Article 3 review, or excuse me, APA review of agency action through a reading of 1491B saying that any claim of a violation of any statute somehow becomes procurement related if it ends up at the termination of a contract.

[00:42:43] Speaker 02:
And that just can't be, it's certainly not how any court has ever interpreted 1491B.

[00:42:49] Speaker 02:
There's nothing here that the appellants are claiming was a violation of anything related to procurement, of anything related to even the contract.

[00:42:58] Speaker 02:
There is no part of the contract that would be at issue or need to be resolved by any court.

[00:43:05] Speaker 02:
It is not a case for 1491B, nor is it a case for 1491A.

[00:43:11] Speaker 02:
And quickly on the standing part, I want to be clear that the impact is not only to providing the legal orientation program services and activities, including LOP, LOPC and ICH, but including impacting all the services that our providers have been designed and created to provide that

[00:43:33] Speaker 02:
because they are not able to provide these program services, all the additional programs and services and activities that they have been providing have been impacted.

[00:43:41] Speaker 02:
And that is the type of organizational impact that Hippocratic Medicine has recognized and upheld and suffices for standing here.

[00:43:52] Speaker 02:
And I also remind the court that the Court of Federal Claims simply cannot give injunctive relief, even if putting aside the issue that the U.S.

[00:44:03] Speaker 02:
Attorney recognized that we couldn't bring a 1491B or a 1491A claim in the Court of Federal Claims.

[00:44:12] Speaker 02:
We're not looking for damages.

[00:44:14] Speaker 02:
Giving us money now does not solve our problem, which has been that every day we are unable to provide the services that our organizations have been designed to provide.

[00:44:24] Speaker 02:
And $28 million a year for the services and activities of the legal orientation program can't be held into the end of the year and then paid out.

[00:44:34] Speaker 02:
And suddenly you've met your obligations.

[00:44:37] Speaker 02:
That has to have meaning in some way.

[00:44:39] Speaker 02:
And what we are looking for is

[00:44:42] Speaker 02:
executive agency to meet its obligation under the appropriation statute to spend 28 million dollars in the furtherance of services and activities of the legal orientation program.

[00:44:54] Speaker 05:
Can I just ask you one question?

[00:44:55] Speaker 05:
So on the your point that under the government's 14-91B theory, it would cover

[00:45:01] Speaker 05:
a broad array of situations, because it would basically cover every situation in which the government would choose to eliminate a program.

[00:45:09] Speaker 05:
So the district court did it differently, because the district court said that, as I understand it, that the parts as to which the government opted to do it in-house rather than outsourcing, that's a procurement-related decision per Fisher-Cal.

[00:45:24] Speaker 05:
But the parts where there's an elimination, that's not.

[00:45:28] Speaker 05:
And so I'm going to do something different with that.

[00:45:31] Speaker 05:
whatever you think about that dichotomy, that at least would not result in the sweeping implications, that approach would not result in the sweeping implications that you're raising a concern about with 1491b because it wouldn't cover then all program eliminations.

[00:45:48] Speaker 05:
It would only cover 1491b then would only cover a substitution of in-house for outsourcing.

[00:45:54] Speaker 02:
correct, and I would also say that it reads almost as broadly as the government's argument because all it does is force the government to say, well, we're not just terminating the contract, we're insourcing, but that insourcing is not subject to any kind of review.

[00:46:09] Speaker 02:
And so it leaves that agency action completely removed from agency review under the APA as well.

[00:46:17] Speaker 02:
It's not quite as broad as the government, but I think that the fair reading of the district court's opinion here is broader than 1491B has ever been intended to apply.

[00:46:27] Speaker 02:
There's just no procurement related statute.

[00:46:30] Speaker 02:
As the court knows, Fisher-Cal involved the failure to do a cost analysis under a procurement statute.

[00:46:38] Speaker 02:
That was the dispute that implicated 1491B.

[00:46:41] Speaker 02:
Here, there is just the idea that a declaration by Saoirse Owen in May of this litigation in response to a summary judgment motion suddenly became the basis for our challenge and suddenly kicked us out of court then.

[00:46:58] Speaker 02:
It's not borne out by the facts.

[00:47:01] Speaker 02:
It's not borne out by the record.

[00:47:02] Speaker 02:
And this would be a very poor case to stake a claim on 1491B.

[00:47:09] Speaker 05:
Thank you, counsel.

[00:47:10] Speaker 05:
Thank you to both counsel.

[00:47:11] Speaker 05:
We'll take this case under submission.