[00:00:00] Speaker 01:
Case number 20-5320, Andy Samoa-Adal versus United States Department of Defense, and Pete Heksef in his capacity as Secretary of Defense at Balance.

[00:00:12] Speaker 01:
Mr. Janda for the balance, Ms.

[00:00:13] Speaker 01:
Kim for the appellees.

[00:00:18] Speaker 02:
Mr. Drossa.

[00:00:20] Speaker 00:
Great.

[00:00:20] Speaker 00:
Thank you, Your Honor, and may it please the court.

[00:00:22] Speaker 00:
Sean Janda for the federal government.

[00:00:24] Speaker 00:
I'd like to reserve five minutes of my time for rebuttal.

[00:00:28] Speaker 00:
Congress has provided that non-citizens who serve in the military may take advantage of an expedited path to naturalization, but only if they have served honorably.

[00:00:36] Speaker 00:
And Congress has further provided that the military shall determine whether any particular non-citizen meets that standard.

[00:00:43] Speaker 00:
Notwithstanding that statutory language, the district court concluded that the statute provides no authority to the military to establish standards defining the boundaries of the honorable service requirement.

[00:00:55] Speaker 00:
That decision is irreconcilable with the statutory text and it's undercut by the substantial history, the decades old history, of the military making honorable service determinations and characterizations and exercising substantial discretion in fixing the boundaries of the requirements that service members must meet to receive.

[00:01:14] Speaker 02:
Can you focus on moodness, please?

[00:01:15] Speaker 00:
Sure, your honor.

[00:01:16] Speaker 00:
So our best understanding is that the case is not moot primarily because parts of the injunction continue to course the department's conduct and because the department may is actively considering this issue and may choose to reimpose new minimum service requirements.

[00:01:33] Speaker 02:
But if we think it's moot and we vacate the lower court's decision, doesn't that solve all your problems?

[00:01:39] Speaker 00:
Yeah, we don't have a sort of particularly strong objection to that.

[00:01:43] Speaker 00:
I think we try to give you our best understanding of the circumstances.

[00:01:46] Speaker 00:
And I think candidly, we don't want the court or the plaintiffs to feel misled if there's a monting where vacater and the department chooses to reimpose new requirements at some point shortly thereafter.

[00:01:56] Speaker 00:
I think we'll make everyone clear that that is certainly a possibility.

[00:02:00] Speaker 00:
But so long as the court follows the Monsignor practice and vacates the judgment below, we do not have a strong objection to that resolution of this appeal.

[00:02:10] Speaker 00:
But if there are no other questions on mootness, I'm happy to check.

[00:02:15] Speaker 02:
Do you agree that the case is otherwise moot?

[00:02:17] Speaker 00:
So we think that the two primary things are that the fact that the injunction continues to force the department and the fact that this may well be reimposed at some point in the future.

[00:02:28] Speaker 00:
As we explained in our brief.

[00:02:29] Speaker 02:
Reimposed at some point in the future doesn't prevent us from being that's speculating.

[00:02:34] Speaker 00:
Again, I think our best understanding is that there's a more than speculative chance given that the department is actively considering this issue.

[00:02:42] Speaker 00:
But I don't want to fight the court too hard.

[00:02:43] Speaker 00:
I think we would be perfectly happy with a decision that vacates the judgment below.

[00:02:49] Speaker 02:
But a record that just says we're considering it doesn't indicate that it's likely or not likely or anything.

[00:02:57] Speaker 02:
It's just, as far as we know, speculative because we have no idea

[00:03:01] Speaker 02:
how things are going as you're considering whether to do this or not.

[00:03:04] Speaker 02:
And so it just seems speculative.

[00:03:07] Speaker 00:
Yeah, like I said, I don't think we have a huge objection if the court reviews the representations that we've been making as not providing a firm basis for thinking that there's a more than speculative chance that the department will do this, so long as the court vacates the judgment.

[00:03:21] Speaker 00:
And then the third thing, which I would just say, is that we focused a little bit, and I'll brief on some concerns we have about the possibility that plaintiffs in the future will argue that the judgment, if it remains in place, has a preclusive effect on.

[00:03:34] Speaker 02:
But any argument that relies on

[00:03:36] Speaker 02:
the district court judgment, if we vacate it, none of that matters, right?

[00:03:40] Speaker 00:
Correct.

[00:03:41] Speaker 00:
We have no strong objection to the court vacating the judgment below.

[00:03:46] Speaker 02:
To summarize what we've been discussing, it seems to me that to the extent that you're saying, we might do this again, that's moot because it's speculative.

[00:03:55] Speaker 02:
And to the extent you're saying the remaining judgment or the judgment of the district court, if it remains in effect, hampers us or does things, that is taken care of if we vacate that judgment.

[00:04:06] Speaker 00:
Again, I don't want to say I agree with the first part of me.

[00:04:09] Speaker 00:
I think, as I said, our best understanding is that it's more than speculative at this point, but I don't want to fight.

[00:04:14] Speaker 02:
It's your best understanding without telling me that you're likely going to do this that has no effect on my decision making.

[00:04:22] Speaker 02:
If your understanding is it's not speculative, but you don't share with the court why that is so, I can't rely on that, can I?

[00:04:28] Speaker 00:
No, sorry.

[00:04:29] Speaker 00:
I was not trying to say that my personal understanding is that it's more than speculative.

[00:04:33] Speaker 00:
I was trying to say that our best reading of this court's precedents and the more than speculative standard as applied to the representations that we have made to the court is we think that those representations.

[00:04:43] Speaker 02:
Is there any prior precedent of this court that says just because you're considering it, that makes it not speculative?

[00:04:48] Speaker 02:
Because my reading is it has to be more than that.

[00:04:51] Speaker 02:
Tell me what cases you're relying on that inform your best understanding.

[00:04:55] Speaker 00:
I don't think we have a particular case that says that, Your Honor.

[00:04:59] Speaker 02:
That being said, you know, I think... What is the basis of your understanding of our case law?

[00:05:04] Speaker 00:
So I think that the discussion in the public citizen case that we talked about in our south mile brief, which I think finds that the possibility of the conduct recurring being not more than speculative was based on the understanding that there were kind of a number of outside contingencies that would have to happen before the sort of plans for the project would be reinvigorated.

[00:05:25] Speaker 00:
Here, as I said, we don't think there's any

[00:05:28] Speaker 00:
kind of outside circumstances that would have to change.

[00:05:32] Speaker 00:
I mean, the department could decide tomorrow if it wanted to issue new requirements.

[00:05:36] Speaker 02:
All we're relying on is the internal deliberations of the government, which we are not privy to.

[00:05:43] Speaker 00:
As is that.

[00:05:43] Speaker 00:
I don't want to fight the court too hard about this.

[00:05:45] Speaker 00:
I think if you look at the representations we've been able to make to the court and you think that those are speculative, we do not object to the court finding that the appeals moved and vacating with judgment.

[00:05:59] Speaker 00:
If there are no other questions, I may be happy to address the merits if the court would like or to save my time.

[00:06:06] Speaker 02:
On the merits, it seemed to me that the parties spent a lot of time debating what's honorable service, that type of thing.

[00:06:16] Speaker 02:
But it seemed to me that implicit in a finding of honorable service is some period of time to evaluate service.

[00:06:24] Speaker 02:
And that didn't seem to be the focus of the briefing that that seemed to be a textual argument that supports the secretary's ability to impose some kind of time limit or time requirement being in service because how do you determine if it was honorable if.

[00:06:41] Speaker 02:
there's no time limit to evaluate that.

[00:06:43] Speaker 00:
I think that's exactly right, Your Honor, and I think that certainly is articulated in the Miller Declaration that's in the Joint Appendix that was sort of a declaration that explained by the military imposed the particular policy in October 2017.

[00:06:54] Speaker 00:
And I think that underlies what's been an exceedingly long history of the military considering length of service and

[00:07:00] Speaker 00:
in many circumstances refusing to certify honorable service on sort of service members first day in service.

[00:07:06] Speaker 00:
I mean, going back to World War I, the Patterson case about someone who had sort of been in the military for four days and the military saying that's not enough time to have earned an honorable characterization of your service.

[00:07:17] Speaker 00:
And so I think that's exactly right.

[00:07:19] Speaker 00:
I think Congress would find it pretty surprising to learn that they had enacted a law that requires the military the day that someone steps off the bus at basic training to certify that they have served honorably in

[00:07:30] Speaker 00:
the sort of hours that they have been at basic training.

[00:07:34] Speaker 00:
And so I think certainly the court, it worked to reach the merits, would be well placed to rely on, I think, that history and that sort of common understanding of what Congress has done here.

[00:07:48] Speaker 00:
If there are no further questions, I'd be happy to speak with them.

[00:08:00] Speaker 03:
May it please the court, Scarlett Kim on behalf of plaintiffs at police.

[00:08:05] Speaker 03:
This case concerns the expedited pathway to citizenship Congress created for non-citizens serving in the military during armed conflict so that they have an opportunity to naturalize before deploying overseas and risking their lives for our country.

[00:08:19] Speaker 03:
As a threshold matter, this case is moot because the government rescinded the challenged policy nearly four years ago because the government is merely considering whether to issue a new policy

[00:08:30] Speaker 03:
And because the class is closed and the injunction has no ongoing effect.

[00:08:35] Speaker 02:
And you agree that if it's moot, we should vacate the district court's decision?

[00:08:39] Speaker 03:
We do not believe that vacatur is warranted, Your Honor, under US Bancorp.

[00:08:43] Speaker 03:
In US Bancorp, the Supreme Court stated that the question of whether or not to vacate

[00:08:48] Speaker 03:
is dependent on a principal condition, which is whether or not the party seeking relief from the judgment below, mooted the action via voluntary action.

[00:08:57] Speaker 03:
And we believe here that it's quite clear that the government mooted the action against it through its own voluntary action.

[00:09:04] Speaker 03:
It sought five extensions on its merits briefing and then it voluntarily rescinded the policy and has taken nearly four years to merely study the issue.

[00:09:12] Speaker 03:
It has had a long runway to

[00:09:16] Speaker 03:
reinstate or reissue a new policy, and it has not done so.

[00:09:20] Speaker 02:
Why should we leave that precedent outstanding when there hasn't been an opportunity for appellate review because of the mootness that occurred during the pendency of the case?

[00:09:31] Speaker 03:
I think the Supreme Court in Bancorp is clear that when the government itself, or as it were the defendant,

[00:09:38] Speaker 03:
has through its own voluntary actions, not through happenstance.

[00:09:42] Speaker 02:
But it doesn't seem like they were trying to manipulate jurisdiction or mootness or anything of that nature here.

[00:09:47] Speaker 02:
And it just seems incorrect to leave something on the books where the litigation was not complete.

[00:09:55] Speaker 03:
So in Bancorp, the Supreme Court didn't suggest that the voluntary action had anything to do with manipulating the court's jurisdiction.

[00:10:01] Speaker 03:
There, the mooting action was a settlement.

[00:10:04] Speaker 03:
And there was no question that the settlement was entered into in bad faith.

[00:10:08] Speaker 02:
So we have some discretion here.

[00:10:10] Speaker 02:
Why should we exercise our discretion to leave this district court intact?

[00:10:15] Speaker 03:
Yes, Your Honor.

[00:10:16] Speaker 03:
I think there are potentially some troubling consequences if related to the gamification of litigation.

[00:10:25] Speaker 03:
Let's say an agency disagrees with the district court judgment below.

[00:10:29] Speaker 03:
It could always seek to try and moot the action to simply vacate instead of

[00:10:34] Speaker 02:
But that doesn't seem to be the case here.

[00:10:36] Speaker 02:
They wanted this appeal to proceed so that they could litigate on the merits.

[00:10:39] Speaker 02:
They think they're correct on the merits.

[00:10:41] Speaker 02:
So I just don't.

[00:10:43] Speaker 02:
But go ahead.

[00:10:44] Speaker 02:
Why should we?

[00:10:45] Speaker 03:
Yes, Your Honor.

[00:10:45] Speaker 03:
I would just simply state that I think as a matter of principle, Bancorp is clear that when the party has mooted the action through its own voluntary action, vacater is not warranted.

[00:10:55] Speaker 03:
And I would just point the court to circuit court.

[00:11:02] Speaker 04:
Justice Scalia's opinion also said that there may be extraordinary circumstances that would warrant vacating the judgment, even when it was the defendant who lost that brought about the mootings.

[00:11:20] Speaker 04:
What kind of circumstance do you suppose he had in mind?

[00:11:27] Speaker 03:
I'm not quite sure what those circumstances would entail, Your Honor.

[00:11:32] Speaker 03:
I can't think of what would be so extraordinary as to warrant vacancy or not.

[00:11:37] Speaker 04:
That was a settlement.

[00:11:38] Speaker 04:
Yes, Your Honor.

[00:11:39] Speaker 04:
And the problem that the court faced was because the losing party didn't file a motion to vacate.

[00:11:50] Speaker 04:
I believe, Your Honor, that- It was a court of appeals decision, not a district.

[00:11:56] Speaker 03:
My understanding, Your Honor, is that the motion to vacate the parties in the decision not to file the motion to vacate was in the underlying facts for Monsignor, but not for Bancorp, Your Honor.

[00:12:09] Speaker 03:
I think in Bancorp, that motion may have existed, but that the primary condition that the Supreme Court pointed to was voluntary action.

[00:12:19] Speaker 03:
And the only other thing I would say on this, Your Honors, is that there are two circuit opinions.

[00:12:26] Speaker 03:
which holds that where an agency rescinds a challenge policy at issue, vacatur is not warranted.

[00:12:34] Speaker 03:
And I would just point the court to those opinions because there are opinions in the circuit that are totally on all fours with rejecting vacatur in these circumstances.

[00:12:44] Speaker 04:
And your position on is that if we don't vacate

[00:12:52] Speaker 04:
that you would agree to the terms that the district court's judgment does not have preclusive or coercive effect?

[00:13:02] Speaker 04:
Yes, your honor.

[00:13:02] Speaker 04:
What does that mean?

[00:13:05] Speaker 04:
What coercive effect do you have in mind?

[00:13:09] Speaker 03:
So I would rely on the government's representations because the government is the party that has indicated that the judgment may have a coercive effect.

[00:13:18] Speaker 03:
And I believe that the government's argument there is that the injunction

[00:13:22] Speaker 03:
could be read by future plaintiffs to apply to a future time and service requirement.

[00:13:28] Speaker 03:
I don't think that the injunction can be read that way.

[00:13:31] Speaker 03:
The government has also said in its briefing that they don't believe it should be properly read that way, only that future plaintiffs might read the judgment that way.

[00:13:38] Speaker 03:
The injunction, I think, is quite clearly tied to the specific time and service requirements in the challenged policy.

[00:13:45] Speaker 04:
So the coercive effect would be on any formulation

[00:13:49] Speaker 04:
that change the rule with respect to time of service before one can be declared honorable?

[00:13:57] Speaker 03:
Well, Your Honor, I don't think the injunction could have that ongoing effect on a future time and service requirement, simply because the injunction states that the government is enjoined from withholding an honorable service certification from a class member based on the time and service requirements in the specific policy.

[00:14:14] Speaker 03:
So we don't believe that the injunction has a coercive effect on any future requirement.

[00:14:19] Speaker 03:
What about a preclusive effect?

[00:14:20] Speaker 03:
What is that?

[00:14:20] Speaker 03:
So the government's representations about preclusive effect had to do with the possibility of a collateral estoppel effect, and that's based on the government's reading of the class certification order.

[00:14:30] Speaker 03:
The government argues that the class may be considered open because the class definition applies to individuals subject to section one of the challenged policy, and not all aspects of section one were challenged by the plaintiffs below.

[00:14:45] Speaker 03:
But I would note, Your Honor, that the government's interpretation of the class certification order is really based on a truncated reading because the class is actually comprised of two subclasses.

[00:14:57] Speaker 03:
And when you read the definition of the two subclasses, those involve individuals who are subject to the time and service requirements in this specific order.

[00:15:06] Speaker 03:
So our position is that since the time and service requirements no longer exist,

[00:15:11] Speaker 03:
there are no longer any individuals entering the two subclasses.

[00:15:14] Speaker 04:
What about a presidential effect?

[00:15:18] Speaker 04:
And the whole point of Bancorp was that the district judges or the district court's order would have presidential effect.

[00:15:29] Speaker 04:
And the defendant who lost and then mooted the case cannot have any complaint about that because they're the ones that

[00:15:40] Speaker 04:
took the action that prevented appellate review.

[00:15:45] Speaker 04:
So if this judgment is not vacated under your view, even if you put preclusive and coercive, it still could have a precedential effect, is that right?

[00:15:58] Speaker 03:
I don't believe so, Your Honor, simply because district court orders are not binding on any other judge and don't serve as binding precedent.

[00:16:05] Speaker 03:
And the judgment and order in this case is just so narrowly tied to the specific time and service requirements.

[00:16:11] Speaker 03:
And so therefore, we don't believe that there would be any precedential effect on any future district court decision on a future time and service requirement.

[00:16:19] Speaker 04:
We have the authority to say that a judgment of a district court that we haven't vacated shall have no presidential effect.

[00:16:28] Speaker 04:
Where do we get that?

[00:16:29] Speaker 04:
I know of no order coming out of a court of appeals that ever did that.

[00:16:38] Speaker 03:
I'm not sure that that principle needs to be stated, Your Honor, simply because district court decisions don't have binding presidential effect.

[00:16:45] Speaker 03:
And so I too cannot think of a particular case that stands for that principle.

[00:16:53] Speaker 02:
It seems to me all of these issues are just matters for future litigation.

[00:16:57] Speaker 02:
Like whether it has any kind of preclusive or coercive effects, it would just be litigated for whatever court that came before.

[00:17:04] Speaker 02:
Somebody would say, this is preclusive or coercive.

[00:17:07] Speaker 02:
And the other side would say, no, it's not.

[00:17:08] Speaker 02:
I don't know why that's an issue for us to even consider.

[00:17:12] Speaker 03:
I mean, we completely agree, Your Honor, and I actually don't think that any future plaintiffs would argue that the class certification order exerts a preclusive effect or that the injunction exerts a coercive effect moving forward.

[00:17:25] Speaker 03:
I think that the slate would be wiped clean if the government were to issue new time and service requirements and there were to be a future challenge to those requirements.

[00:17:33] Speaker 02:
So the best argument for not vacating the district court order would be what?

[00:17:38] Speaker 03:
The best argument I would rely again simply on Bancorp, Your Honor, and the principle that the principle condition the court should look to is whether the party seeking relief from the judgment below mooted the action through their own voluntary action.

[00:17:51] Speaker 03:
And I think it's clear that the court, excuse me, the government did so here.

[00:17:55] Speaker 03:
And I'll just point to the two cases in the circuit which have held similarly.

[00:18:00] Speaker 03:
The first is IA v. Garland, which is a 2002 case.

[00:18:05] Speaker 03:
and Center for Science in the Public Interest versus Reagan, which is a 1984 circuit case.

[00:18:11] Speaker 02:
Thank you.

[00:18:12] Speaker 03:
If your honors have no further questions on mootness, I will briefly address the merits.

[00:18:21] Speaker 03:
Judge Pan, you asked about the textual argument.

[00:18:24] Speaker 03:
And I think here, the parties agree that the key textual term is served honorably.

[00:18:29] Speaker 03:
And the parties also agree that it's a term of art that's not defined in the statute.

[00:18:35] Speaker 02:
Nobody can forfeit the plain reading of a statute and it's now our job to determine the best reading of the statute.

[00:18:40] Speaker 02:
And if the court thinks that what we are interpreting here is the secretary shall determine.

[00:18:46] Speaker 03:
Yes, your honor.

[00:18:47] Speaker 03:
Um, but the secretary shall determine whether someone served honorably.

[00:18:50] Speaker 03:
And we think here that the appropriate approach is based on the instruction in George V. McDonough, which is a 2022 Supreme court case, which the defendants themselves cited in their brief.

[00:19:02] Speaker 03:
In George v. McDonough, the Supreme Court instructed that where Congress employs a term of art with a long regulatory practice in the specific context presented by the statute, when Congress adopts that term of art, it codifies the interpretation developed under that specific practice.

[00:19:19] Speaker 03:
When the Immigration and Nationality Act was passed in 1952 with the determined served honorably language or honor,

[00:19:26] Speaker 03:
It ported over that language directly from the Nationality Act of 1940.

[00:19:30] Speaker 03:
And under the Nationality Act of 1940, your honor, tens of thousands of non-citizens were determined to have served honorably at the beginning of their service with no time and service requirements during World War II.

[00:19:42] Speaker 03:
And we therefore believe that when Congress adopted that language again in 1952, it codified that interpretation.

[00:19:49] Speaker 02:
And does that mean it has to be that way, or is it that the secretary had discretion to determine this and determine that that was enough time at that time, but that doesn't mean they can't change?

[00:20:01] Speaker 03:
I have two responses to that, Your Honor.

[00:20:02] Speaker 03:
The first is that George V. McDonough is clear that Congress codifies that interpretation, the historical meaning.

[00:20:09] Speaker 03:
And in fact, in that opinion, the Supreme Court stated that it's not the question of what the text... So what do you think has been codified?

[00:20:15] Speaker 03:
That it can be done in a day, it can be done in 30 seconds, it can be done in...

[00:20:19] Speaker 03:
What has been codified?

[00:20:21] Speaker 03:
Yes, what has been codified is that the Department of Defense determines when the service member presents their request for honorable service certification.

[00:20:31] Speaker 03:
And this is only during a period of armed conflict.

[00:20:35] Speaker 03:
The Department of Defense must make that determination.

[00:20:37] Speaker 03:
And I would just note that the Department of Defense has made this... I'm sorry, so the applicant can...

[00:20:45] Speaker 02:
Any time the applicant wants to apply sets the time limit?

[00:20:50] Speaker 03:
The applicant does not set the time limit.

[00:20:53] Speaker 03:
I would just note that the Department of Defense has had a consistent practice for a century of doing this.

[00:20:58] Speaker 02:
No, no, I understand.

[00:20:58] Speaker 02:
I'm trying to get at what they're allowed to do, not what they have done.

[00:21:01] Speaker 03:
Yes, Your Honor.

[00:21:02] Speaker 03:
Yes, our interpretation under George V. McDonough is that the historical understanding fixes what the authority of the Department of Defense has.

[00:21:11] Speaker 03:
And the historical understanding is that when a service member

[00:21:14] Speaker 03:
submits their honorable service certification in order to determine whether or not they're eligible for naturalization, the statute does not authorize the department to fix a minimum period of time before they can receive the determination.

[00:21:31] Speaker 02:
Get off the bus at basic training and present these papers.

[00:21:34] Speaker 03:
Yes, and indeed they have.

[00:21:35] Speaker 03:
Hundreds of thousands of non-citizens have been able to receive their honorable service certifications this way, and the military has had a consistent practice for making that determination.

[00:21:45] Speaker 03:
In the unrelated case of Kirwa, the district court found.

[00:21:48] Speaker 02:
I guess what I struggle with is how do they make a determination that the service was honorable if there has been no time to do that?

[00:21:56] Speaker 03:
Yes.

[00:21:56] Speaker 03:
So in Kirwa, the district court explained what the unrebutted facts showed about what that practice consisted of, Your Honor.

[00:22:02] Speaker 03:
And that practice consisted of looking at a service member's record at the moment that the request was made and determining if they were serving active duty or selected reserve.

[00:22:13] Speaker 03:
if they had valid dates of service that fell within section 1440, and if there was any immediate past derogatory information.

[00:22:21] Speaker 02:
The other- So you think there's a presumption that the service was honorable?

[00:22:25] Speaker 03:
I don't think there's a presumption, Your Honor.

[00:22:27] Speaker 03:
It's looking at the record at the time that the request is made.

[00:22:30] Speaker 02:
You're saying it's honorable as long as there's nothing that says it wasn't?

[00:22:33] Speaker 02:
Yes, Your Honor.

[00:22:34] Speaker 02:
Yes.

[00:22:34] Speaker 02:
So that seems to me to be a presumption that it was, unless it's proved otherwise.

[00:22:37] Speaker 03:
I'm not sure I would describe it as a presumption, Your Honor.

[00:22:41] Speaker 03:
I would describe it as simply looking at the record at that time, the service member's record, and determining if there is any information warranting denial of the honorable service certification.

[00:22:52] Speaker 03:
I would just make two other points that are contextual because, of course, text must be read in context.

[00:22:58] Speaker 03:
The first is that section 1440 is one of two naturalization provisions.

[00:23:03] Speaker 03:
Section 1439 is a companion provision, and it provides that in peacetime,

[00:23:07] Speaker 03:
non-citizens are eligible to apply for naturalization after having served a year.

[00:23:12] Speaker 03:
And we believe that Congress clearly indicated a minimum period of service in one provision and not in another.

[00:23:18] Speaker 03:
And that lends itself to the conclusion that Congress omitted deliberately a prescription of a minimum period of service.

[00:23:26] Speaker 03:
And the last point I would just make is that this is a naturalization statute.

[00:23:29] Speaker 03:
And Congress gets to set the rules for who is eligible for naturalization and when.

[00:23:34] Speaker 03:
And it certainly could not have intended the department to substantively amend this priority lane for citizenship that it created for non-citizens serving during armed conflict.

[00:23:43] Speaker 03:
But that is exactly what the department is seeking to do.

[00:23:46] Speaker 03:
Under the challenged policy itself, it would have completely effaced the section 1440 pathways to citizenship for selected reservists, one portion of the class, by making them wait one year, which is the same time under peacetime as in armed conflict, before they could seek citizenship.

[00:24:03] Speaker 03:
And on appeal, their position is even more extreme, which is that they would like to align the service characterization at discharge policy with the honorable service certification at naturalization policy, which would require all service members to wait a minimum of one year.

[00:24:17] Speaker 03:
Again, that would completely obliterate section 1440 pathway to citizenship, but would 180 days.

[00:24:23] Speaker 03:
180 days would not, it would obliterate or it would have faced Congress's intent.

[00:24:30] Speaker 03:
I think the legislative history is clear that what Congress intended- Not as clearly as one year.

[00:24:34] Speaker 02:
One year clearly, I think, would- Yes, Your Honor.

[00:24:38] Speaker 03:
Yes, Your Honor.

[00:24:39] Speaker 02:
At some point, isn't it sort of an arbitrary and capriciousness question?

[00:24:44] Speaker 03:
I mean, I think our position, Your Honor, is that Congress made it clear that service members should not be subject to a minimum period of time.

[00:24:53] Speaker 03:
And that the reason for that was that they wanted service members to be able to deploy as citizens.

[00:24:58] Speaker 03:
And in the administrative record, the military states itself that any service member is subject to potential assignment to a war zone after graduating from basic training, which is only 10 weeks.

[00:25:08] Speaker 03:
That is far shorter than the 180 days minimum that was set out in the challenged policy.

[00:25:14] Speaker 02:
Could they set a limit that allows them to be naturalized by the end of basic training?

[00:25:19] Speaker 03:
I don't believe they could set a limit, your honor, based on what the statute authorizes, which is no minimum period of service imposed.

[00:25:30] Speaker 04:
I want to take you back to the mootness question, because there's a couple of threads that seem to me to be hanging, and I want to make sure I understand.

[00:25:39] Speaker 04:
On the voluntary succession doctrine, or exception to mootness, you say it doesn't apply

[00:25:47] Speaker 04:
if the actor is not mooting the case for the purpose of avoiding litigation and you say that the defendants here did not institute this guidance, new guidance for the purpose of avoiding litigation, how do you know that?

[00:26:09] Speaker 03:
I think there are two pieces of evidence that suggest that the government did not act to avoid litigation.

[00:26:17] Speaker 03:
The first is that the government does not oppose mootness.

[00:26:21] Speaker 03:
And in Public Citizen, the court pointed to that as a factor.

[00:26:25] Speaker 03:
And then the other piece of evidence is that in the intervening period, the department has actually taken proactive steps to move away from the rescinded policy, which is just not.

[00:26:35] Speaker 04:
The main piece of evidence is that the government is arguing the case isn't moot.

[00:26:39] Speaker 04:
Yes, Your Honor.

[00:26:40] Speaker 04:
OK.

[00:26:40] Speaker 04:
Yes, Your Honor.

[00:26:42] Speaker 04:
But there's another aspect of the voluntary succession doctrine.

[00:26:45] Speaker 04:
And that says that if it did apply, it applies because the defendant, the losing defendant, could institute the policy again, right?

[00:26:58] Speaker 04:
Yes, Your Honor.

[00:27:01] Speaker 04:
Does that seem inconsistent with the Supreme Court's standing doctrine?

[00:27:05] Speaker 04:
The standing doctrine requires that the harm be imminent.

[00:27:11] Speaker 04:
but on this mutinous doctrine, there's no time limit on when, I mean, for all we know, the government five years from now will be instituting, but that's not imminent harm.

[00:27:23] Speaker 04:
I mean, aren't they inconsistent?

[00:27:27] Speaker 03:
Yes, Your Honor, that's an interesting doctrinal question.

[00:27:31] Speaker 03:
I believe, Your Honor, in Laidlaw, the Supreme Court discussed how

[00:27:36] Speaker 03:
The description of mootness as standing set at a later time frame is actually not entirely on point.

[00:27:43] Speaker 04:
Justice Ginsburg.

[00:27:45] Speaker 03:
Yes, Your Honor.

[00:27:46] Speaker 03:
And I think what the court pointed to there was when considering mootness, there are other considerations at play, which is why some of these exceptions come in and why there's this question about is it their likelihood that the behavior could resume.

[00:28:02] Speaker 03:
And that's because there are all these litigation resources that have been expended to that date so that it might make sense for a higher court at that point to potentially see if it might hold on to the case if it is likely that the challenge conduct may resume.

[00:28:19] Speaker 03:
Thanks.

[00:28:20] Speaker 03:
Thank you, Your Honors.

[00:28:31] Speaker 00:
Thank you.

[00:28:31] Speaker 00:
I just have a couple of quick points.

[00:28:33] Speaker 00:
I'd like to make two on mootness and then one quickly on the merits.

[00:28:36] Speaker 00:
First on mootness, I think if the court does believe this case is moot, then Munsingware vacator is absolutely warranted here.

[00:28:43] Speaker 00:
I mean, Munsingware itself describes vacator as the established practice in circumstances where a case becomes moot before appellate review can be had.

[00:28:49] Speaker 00:
And we cite, at page 16 of our self-media brief, three recent Supreme Court cases where the court vacated lower court judgments in circumstances where the government had rescinded the policy in question, sort of mooting the case.

[00:29:02] Speaker 00:
And I think those really undermine the case.

[00:29:06] Speaker 04:
What case did you mention?

[00:29:07] Speaker 00:
So there's three that we cite at page 16 of our South Monterey for one is Biden against feds for medical freedom.

[00:29:13] Speaker 00:
One is, I think, my orcas against innovation law lab and one is yelling against us House of Representatives in all three cases, all last four years or so that the sort of government lost below.

[00:29:25] Speaker 00:
rescinded the challenge policy for reasons unrelated to the litigation and the Supreme Court mooted, I think, at least in some of those cases, over objections, like those I've heard from my friends on the other side today, that that sort of voluntary action shouldn't underbancorp support a vacuer.

[00:29:41] Speaker 00:
And I think the reason for that, as we explain our self-media brief, is that just as an equitable matter, it's not appropriate to force the government to choose between

[00:29:48] Speaker 00:
for keeping a policy they would like to rescind for policy reasons unrelated to the litigation and having to forego a public review of a judgment that may sort of hamper the government's ability to exercise its policy discretion moving forward.

[00:30:00] Speaker 04:
What were the policy judgments unrelated to this litigation that led to the new guidance?

[00:30:07] Speaker 00:
So the memo rescinding the guidance is in the record, Your Honor.

[00:30:12] Speaker 00:
It's not a particularly long memo.

[00:30:14] Speaker 00:
I think the department made the determination that it did not wish to enforce the time and service requirements at this point.

[00:30:20] Speaker 00:
I mean, I think that's a determination that could change.

[00:30:24] Speaker 00:
But I don't think there's any suggestion that that was sort of an attempt to move to litigation.

[00:30:30] Speaker 00:
Obviously, we're here saying that we don't think the litigation is moot.

[00:30:33] Speaker 00:
And then the other quick piece I'll say on mootness is

[00:30:36] Speaker 04:
I don't find, I've read the memo and I don't find any reasoning.

[00:30:42] Speaker 00:
The memo is quite short.

[00:30:45] Speaker 00:
The department was rescinding the requirements.

[00:30:47] Speaker 04:
And it cites this litigation.

[00:30:50] Speaker 00:
It does mention that this litigation is ongoing.

[00:30:55] Speaker 00:
One is, if you think that this is an attempt to gain the litigation, then I think that would trigger the voluntary cessation doctrine, under which there will be a much higher standard to find witness in the first place.

[00:31:09] Speaker 00:
And so I think it would be inappropriate to say,

[00:31:14] Speaker 00:
The government's precision is sufficiently unrelated to the litigation not to trigger voluntary cessation to keep the case alive, but sufficiently related to the litigation to say that we don't get the benefit of one thing or another.

[00:31:24] Speaker 00:
I think sort of one way or the other, either the court should decide the case or it should vacate the judgment below.

[00:31:29] Speaker 00:
And like I said, I don't think we have a particularly strong preference between those two options, but we do think that either one is required.

[00:31:35] Speaker 00:
And the other thing I'll say is,

[00:31:36] Speaker 00:
I think the class certification definition and the terms of the injunction are a little bit unclear.

[00:31:40] Speaker 00:
I think we have a reasonable concern that the injunction continues to have course of effect on the department.

[00:31:46] Speaker 00:
As recently as October, the plaintiffs tried to- Why isn't that a matter just for future litigation?

[00:31:52] Speaker 00:
I think the- Well, two things, Ryan.

[00:31:53] Speaker 00:
I mean, one is I think if the injunction does have that sort of ongoing effect, then I'm not sure how the court could say the case is moot.

[00:32:00] Speaker 00:
I mean, we cite Sarco in her brief.

[00:32:02] Speaker 02:
It just seems to me that you're saying possibly people will argue that the injunction is in effect, even though it seems to apply just to the particular.

[00:32:12] Speaker 02:
policy that was in effect at that time, which has been rescinded.

[00:32:15] Speaker 02:
But you're saying somebody could argue in the future that this continues to have presidential or corrosive effect.

[00:32:21] Speaker 02:
It just seems to me that you would just litigate that before whatever court you're in front of.

[00:32:25] Speaker 00:
So I think there's two pieces of the injunction, Your Honor.

[00:32:28] Speaker 00:
So one piece we think applies only to the minimum service requirements.

[00:32:30] Speaker 00:
That's the reason it says you can't enforce them.

[00:32:32] Speaker 00:
There's another piece that says that the government has to sort of certify or return form M426s as expeditiously as possible.

[00:32:40] Speaker 00:
And in any case, within 30 days, it's sort of limited to the class members.

[00:32:44] Speaker 02:
And so that- That part you don't have a problem with.

[00:32:47] Speaker 02:
You're doing that anyway.

[00:32:49] Speaker 00:
We are trying our best to do that.

[00:32:50] Speaker 00:
I think we certainly have a problem with being subject to an ongoing injunction that we have to comply with on pain of contempt.

[00:32:56] Speaker 02:
And I don't- That's not just for the class members, though, that are the subject of-

[00:33:01] Speaker 02:
litigation.

[00:33:02] Speaker 00:
The injunction is just for the class members.

[00:33:04] Speaker 00:
That piece of the injunction is just for the class members.

[00:33:07] Speaker 00:
The sort of policy more generally is to try and return within 30 days if we can.

[00:33:12] Speaker 02:
Yeah, I'm just saying is that policy apply beyond the class members?

[00:33:16] Speaker 00:
I think the policy applies generally.

[00:33:19] Speaker 00:
The class sort of

[00:33:22] Speaker 00:
comprises, I think, everyone or just about everyone who will be subject to or who will be able to take advantage of section 1440 at this point.

[00:33:28] Speaker 00:
So I'm not sure that there's been daylight.

[00:33:30] Speaker 02:
There's a dispute about that.

[00:33:31] Speaker 02:
If any other side said there's no new members of this class.

[00:33:35] Speaker 00:
Yes.

[00:33:36] Speaker 00:
I mean, I'm sort of happy to hear that.

[00:33:37] Speaker 00:
I wasn't aware the claims had that interpretation of the class.

[00:33:41] Speaker 00:
But again, I think our fundamental point is that there is some degree of ambiguity in the sort of ongoing effect of the judgment and the scope of the class.

[00:33:51] Speaker 00:
If the court sort of looks at,

[00:33:52] Speaker 00:
I think to say that this case is moot, the court would have to think that there is no ongoing sort of coercive effect on the government.

[00:34:00] Speaker 00:
And so, you know, if the court thinks that, then I think our request would be that the court, I mean, A, should vacate for the reason discussed, but B, that it may not in fact have an ongoing coercive effect, but the government thinks it does.

[00:34:13] Speaker 02:
So it's doing stuff like, I just don't know how we take that into account.

[00:34:17] Speaker 00:
I mean, I think if the court thinks that the injunction has no ongoing effect, that would be a sort of necessary conclusion to dismiss this appeal as moot.

[00:34:26] Speaker 00:
And if the court says that's how we understand the injunction, I think we would be perfectly happy to hear that.

[00:34:32] Speaker 00:
What we don't want is to end up in a situation where we've sort of lost the ability to get appellate review of a judgment injunction that we think is just absolutely erroneous on the merits.

[00:34:41] Speaker 00:
And sort of in the future, then,

[00:34:44] Speaker 00:
find out that we were wrong about the ongoing effect of the judgment or about the definition of the class.

[00:34:51] Speaker 00:
And so I think that all of those problems are solved by just vacating the judgment under Monsignor.

[00:34:56] Speaker 00:
I think that would be the most appropriate thing.

[00:34:58] Speaker 00:
But I certainly don't think that the court could properly say, we're not going to decide whether the judgment has ongoing effect, but we're going to hold that the case is moved at this point.

[00:35:06] Speaker 00:
I think the no ongoing effect is kind of a logical antecedent to the appeal being good.

[00:35:12] Speaker 00:
If the court has no further questions, I'm happy to skip the point on the merits I was going to make.

[00:35:18] Speaker 00:
Thank you.

[00:35:19] Speaker 02:
Thank you.

[00:35:20] Speaker 02:
The case is submitted.