[00:00:00] Speaker 00: Case number 24-5072, National Council of Agricultural Employers at Balance versus United States Department of Labor, EDAL. [00:00:10] Speaker 00: Mr. Dorey for the balance. [00:00:12] Speaker 00: Mr. Winnick for the police. [00:00:15] Speaker 05: Good morning. [00:00:16] Speaker 05: We will hear argument in the first case and then take a brief recess to reconstitute the panel. [00:00:23] Speaker 05: Mr. Dorey. [00:00:25] Speaker 02: Good morning and may it please the court. [00:00:27] Speaker 02: I represent the National Council of Agricultural Employers. [00:00:31] Speaker 02: NCAA is an association that in turn represents the farmers and ranchers across this country. [00:00:37] Speaker 02: NCAA's members are the users of the H2A program. [00:00:41] Speaker 02: It in fact now represents approximately 95% of employer H2A users. [00:00:47] Speaker 02: The program allows for farmer and rancher employers to bring agricultural workers to this country on a temporary basis. [00:00:54] Speaker 02: Without a functional H2A program, the food supply in this country would greatly suffer and compromise national security. [00:01:01] Speaker 02: For a variety of reasons, the H2A program is heavily regulated by the federal government, including by the United States Department of Labor. [00:01:09] Speaker 02: How exactly the Labor Department regulates the program has significant consequences for how well it functions or doesn't function. [00:01:16] Speaker 02: This appeal presents a tale of three [00:01:19] Speaker 02: H-2A program rules promulgated by the Labor Department. [00:01:23] Speaker 02: The first was issued in 2010, and it governed the program for more than a decade. [00:01:29] Speaker 02: On January 11, 2021, the outgoing Trump administration promulgated a replacement rule. [00:01:36] Speaker 02: A year and a half prior, it had issued a notice of proposed rulemaking. [00:01:41] Speaker 02: It accepted voluminous comments, including from our client. [00:01:45] Speaker 02: And after months of work, it finalized a rule [00:01:47] Speaker 02: The record shows it's over 700 pages long. [00:01:52] Speaker 02: Its relevant officials signed that rule. [00:01:54] Speaker 02: They filed it with the Office of Veterans Register for public inspection and publishing. [00:02:00] Speaker 02: Under 44 USC 1503, OFR was required to note on the document that was filed the day and hour of filing and make it immediately available for public inspection. [00:02:11] Speaker 05: But you haven't challenged the OFR regulations. [00:02:16] Speaker 05: We have not statute seems to require immediate availability for public inspections inspection, but the regs give. [00:02:27] Speaker 05: For this brief time to review the rule and formatted and to the to the technical review before they put it out. [00:02:36] Speaker 02: I agree with that and that's far didn't do that at all for 11 days they had this rule but I mean. [00:02:43] Speaker 05: We have Kennecott and Humane Society in those cases draw the line, not at agency transmission to OFR, but at OFR's making available for public inspection. [00:02:58] Speaker 02: I don't think those cases stand for that proposition because the question was never decided in either one. [00:03:03] Speaker 02: If an agency itself published the rule, put it out ahead of time. [00:03:07] Speaker 02: And I think that that line, if an agency promulgates itself and makes it available to the public, is much more consistent with a long line of cases from this court and other courts as well. [00:03:18] Speaker 02: They say if an agency makes a final choice and puts it out, those who have actual notice are bound. [00:03:23] Speaker 02: and our client had actual notice of it and so did its members who are the users of the program. [00:03:28] Speaker 05: So I think it's- Agency put out something that it described as a non-final rule. [00:03:33] Speaker 05: It had a disclaimer. [00:03:34] Speaker 05: It said, don't rely on this, rely on the final rule. [00:03:39] Speaker 02: I don't think the agency ever said it wasn't a final rule and in fact said this regulation has been sent to OFR and it might have some technical differences, some formatting differences. [00:03:52] Speaker 02: OFR, in fact, makes technical and formatting differences between its own public inspection. [00:03:56] Speaker 05: This version of the regulation may vary slightly from a published document. [00:04:01] Speaker 02: That's true even as between OFR public notice and OFR publication. [00:04:06] Speaker 04: That's also true of every submission DOL makes. [00:04:09] Speaker 04: It's a boilerplate. [00:04:10] Speaker 04: It has no significance. [00:04:12] Speaker 04: That's special to this case. [00:04:15] Speaker 02: I agree with that. [00:04:17] Speaker 04: So every time they submit a rule, you're saying it's final [00:04:22] Speaker 04: anymore because they've said we've submitted it. [00:04:27] Speaker 02: It's final if it's not confidential and I think that's the distinction if it's not confidential. [00:04:33] Speaker 02: So to my understanding in Kanaka there was a submission to OFR but it was in secret so no member of the public had knowledge what had gone on there. [00:04:42] Speaker 02: And so the question was not presented, whether OFR, public inspection, is the test or the final line as that goes. [00:04:51] Speaker 02: And had there been in that case public notice of the role, then we might have a very different decision in Kennecott. [00:04:57] Speaker 02: I think the government has over read Kennecott now twice, once in Humane Society and again here to stand for something it doesn't, because the facts weren't present. [00:05:06] Speaker 04: But you're treating notice to the council and several other interest groups as public notice. [00:05:14] Speaker 02: It is, I think. [00:05:15] Speaker 04: But the public didn't get notice. [00:05:17] Speaker 02: The public did get notice insofar as NCAE got notice and then disseminated it to its member. [00:05:23] Speaker 02: I didn't get notice. [00:05:25] Speaker 02: I mean, I don't think you read the public inspection by federal register online either every day. [00:05:32] Speaker 02: Maybe you do. [00:05:34] Speaker 04: Members of the public generally don't do that either, but there are members of the public out there who would, many more people submitted comments than got notice, I believe. [00:05:46] Speaker 04: In any event, members of the public are entitled to notice. [00:05:50] Speaker 02: They are. [00:05:51] Speaker 02: And I think they got it. [00:05:52] Speaker 02: There was a press release. [00:05:53] Speaker 02: There was a stakeholder call. [00:05:55] Speaker 02: Text was published on the website. [00:05:57] Speaker 02: USDA got involved in this case, as with Humane Society. [00:06:00] Speaker 02: Same basic setup for USDA. [00:06:02] Speaker 04: Are there agricultural employers who are not members of the council? [00:06:06] Speaker 02: There are. [00:06:07] Speaker 02: It's pretty limited. [00:06:10] Speaker 02: Did they get noticed? [00:06:11] Speaker 02: If they read DOL's website or joined the stakeholder call or saw the press release, then they would have. [00:06:18] Speaker 02: That that's an actual notice question federal register notice is a best constructive. [00:06:24] Speaker 03: So I wouldn't know if our is not required to provide the actual notice by filing the rule for public inspection. [00:06:30] Speaker 03: Are you saying that we can just miss that step or skip that step. [00:06:35] Speaker 02: I am saying that [00:06:37] Speaker 02: DOL did everything it needed to do. [00:06:39] Speaker 02: OFR didn't follow the rules. [00:06:41] Speaker 02: DOL put it out itself. [00:06:43] Speaker 02: And I think putting it out itself is sufficient for this purpose because it provided the actual notice that's required to make things final. [00:06:51] Speaker 03: But isn't OFR serving essentially a gatekeeping function? [00:06:55] Speaker 03: In other words, if you just allow agencies to publish their rules on their websites in a press release and have a stakeholder call, what is the purpose of the Federal Register Act, you know, in terms of what Congress intended them with respect to playing their role? [00:07:09] Speaker 02: The purpose of the Federal Register Act is to provide constructive notice to those who don't have actual, and to make a record of United States government actions for posterity that are official and final. [00:07:19] Speaker 03: But it doesn't mean- But if something is only on a website and it's not coming out in the Federal Register as something that's final, you know, in terms of public inspection, how do we know all of the appropriate people got notice of it if you're requiring them to go to a website to find that information out? [00:07:38] Speaker 02: I think it's the same thing as what OFR does, which at best is putting stuff on a website for folks to look at. [00:07:44] Speaker 02: So I don't see how it's different if an agency does it or if OFR does it. [00:07:48] Speaker 03: But how do we undo that step with the OFR requirement serving as that gatekeeping function? [00:07:56] Speaker 03: Because it sounds like you're making us stop short of that, but how do we undo that if that's already part of the process? [00:08:03] Speaker 02: I think that OFR plays a role in the process. [00:08:07] Speaker 02: But if you look at the APA, agency action is the test for what goes on. [00:08:13] Speaker 02: What does an agency do with a rule? [00:08:15] Speaker 02: What rules does it need to follow in respect to that? [00:08:17] Speaker 03: One thing about public inspection is that the agency then is limited with respect to removing the rule and amending it. [00:08:26] Speaker 03: Because that OFR process adds some finality to the rule. [00:08:31] Speaker 03: But if you're just allowing an agency to put it on their website, then they can undo the language on the website on its own, anytime. [00:08:38] Speaker 02: I don't think an agency is allowed to do that. [00:08:40] Speaker 02: Once it says, this is the final rule, we've signed it, and they put it on their website, APA says, that's closed. [00:08:46] Speaker 02: That's final. [00:08:46] Speaker 02: The administrative record is closed. [00:08:48] Speaker 02: I don't think an agency can play games at that time, just like an agency can't if it's sent to OFR and done. [00:08:54] Speaker 02: Even though it's not for the purpose of human society, if you think about it, final in so far as it's published, it's not published in that case, but the court held it's final for that purpose. [00:09:04] Speaker 03: But what law supports you that being on the website makes it final? [00:09:09] Speaker 02: The Administrative Procedure Act, because that's the agency action that's taken. [00:09:13] Speaker 02: Agency says this is done and here it is to the public. [00:09:16] Speaker 02: And that is all that is required in our view. [00:09:20] Speaker 05: I mean, you're advocating a [00:09:25] Speaker 05: practical, common sense test. [00:09:30] Speaker 05: The publication seems relatively public and the rule seemed relatively final. [00:09:40] Speaker 05: But this seems like an area that calls out for a bright line rule. [00:09:48] Speaker 05: Publication by OFR after all the nits have been worked out. [00:09:55] Speaker 05: And everyone knows what that is, and people act accordingly. [00:10:03] Speaker 05: Your approach sort of makes loose, intuitive sense, but it's going to open up litigation about what kind of website publication is sufficiently [00:10:16] Speaker 05: formal and direct and what kind of amendments are technical versus substantive and why would we do that? [00:10:25] Speaker 02: I think that the court right line rule sounds nice but I'm not sure that's consistent with the APA and I think that's reading OFR in the OFR regulations and statute into the APA in a way that doesn't work. [00:10:42] Speaker 02: I think that it's giving OFR too much power that Congress didn't intend. [00:10:46] Speaker 02: They serve a largely ministerial function. [00:10:49] Speaker 02: They're supposed to do what agencies tell them to do. [00:10:51] Speaker 05: Giving them too much power sounds like a challenge to the reg that lets OFR [00:11:00] Speaker 05: delay making something available for public inspection. [00:11:04] Speaker 02: It's very difficult to challenge what OFR does in that space. [00:11:07] Speaker 02: I agree. [00:11:08] Speaker 02: I think I'm talking about the congressional design under the statute. [00:11:12] Speaker 02: It says OFR receives, OFR stamps, OFR puts on public inspection. [00:11:16] Speaker 02: Had they followed that rule, we wouldn't be here today because that's what DOL wanted and gave OFR 11 days to do and didn't do. [00:11:22] Speaker 05: All right, so tell me what's your best APA statutory site for the rule? [00:11:28] Speaker 05: that you're advocating? [00:11:30] Speaker 02: I would say look at. [00:11:33] Speaker 05: Publication on an agency website plus transmission to OFR is legally sufficient to make the rule of binding. [00:11:45] Speaker 05: What statute tells me that I would look at APA 504. [00:11:50] Speaker 02: What makes a rule of forward looking statement by 5 or 7? [00:11:55] Speaker 05: So the judicial review provision, right? [00:11:58] Speaker 02: I would look first at the 5's before I look at the 7's. [00:12:03] Speaker 02: And if you give me one second, I can do better. [00:12:07] Speaker 02: They should be at the back of the first brief. [00:12:17] Speaker 02: So let's look at 551 to start. [00:12:20] Speaker 02: Here's what a rule is. [00:12:21] Speaker 02: An agency statement of general or particular applicability. [00:12:25] Speaker 02: So how can we say it's OFR statement or restatement of what an agency said? [00:12:30] Speaker 02: Rulemaking is the process for formulating a rule. [00:12:34] Speaker 02: We look at 706. [00:12:35] Speaker 05: It doesn't tell you the point at which the rule becomes final for withdrawal purposes. [00:12:44] Speaker 02: I think the agency makes the statement. [00:12:47] Speaker 02: It doesn't say here the agency only makes the statement whenever OFR says, here's what the agency said. [00:12:53] Speaker 02: And I think if we read a bright line that says, oh, if our notice is the end of the line, like, we're going to run into a circuit spot. [00:13:00] Speaker 02: But the Fifth Circuit, why sober? [00:13:03] Speaker 02: There's a new case out of the Fifth Circuit that says a tweet is a role, because an agency said it, put it on the website. [00:13:10] Speaker 02: That's after versus HHS. [00:13:14] Speaker 04: In this particular case, you argued also that [00:13:20] Speaker 04: Basically, a variety of subjective factors favor your position here. [00:13:29] Speaker 04: The direct release in the department to various people. [00:13:35] Speaker 04: The disclaimer, which, as I say, has been in all the cases. [00:13:42] Speaker 04: Some previous correspondence, I believe, you cited also, in which the department itself expressed some concern [00:13:50] Speaker 04: doubt about whether it was final, is that correct? [00:13:52] Speaker 04: Or was it the council? [00:13:55] Speaker 02: There was an individual within NCAE who wasn't its president and CEO, the corporal aired on that point, who suggested that the incoming Biden administration might do something that was different. [00:14:06] Speaker 02: Of course, delay would have been the most obvious answer. [00:14:09] Speaker 04: These are all facts that are specific to this case. [00:14:14] Speaker 04: They're basically subjective. [00:14:15] Speaker 04: It was the understanding that the rule was final. [00:14:18] Speaker 04: That's what you've been arguing right [00:14:20] Speaker 04: So every case would be unique, correct? [00:14:24] Speaker 02: I think that's probably right. [00:14:25] Speaker 02: It's hard to make a bright line rule on these cases when it's so fact bound. [00:14:29] Speaker 04: And I think they're- It makes it easy to make a bright line rule. [00:14:32] Speaker 04: The subjective elements are simply irrelevant in a bright line rule. [00:14:36] Speaker 04: You have a dating. [00:14:38] Speaker 04: That's it. [00:14:38] Speaker 04: It doesn't matter what people say, what they think, what they write to each other. [00:14:44] Speaker 02: I think that when DOL put it on its website, did a press release, held a stakeholder briefing, that's a bright line. [00:14:51] Speaker 02: That's not super subjective at that point either. [00:14:53] Speaker 04: So if you take out the press release, you're still OK? [00:14:56] Speaker 02: I think so. [00:14:57] Speaker 02: So you don't really need the press release? [00:14:59] Speaker 02: It's helpful. [00:14:59] Speaker 02: It gives an actual notice, which is the test. [00:15:03] Speaker 02: And I think if we take a different line here, then we might be overruling a bunch of cases from a while ago that are criminal cases. [00:15:09] Speaker 02: Let's say if someone has. [00:15:11] Speaker 04: Those are cases against parties with actual notice. [00:15:14] Speaker 04: In the case, but there are also cases involving the question of whether the rule is ready for subjected to judicial review right involved. [00:15:25] Speaker 04: Either criminal defendants with actual notice who went on to violate the rule. [00:15:30] Speaker 04: or civil plaintiffs with actual notice who sought judicial review before the OFR was finished? [00:15:36] Speaker 02: I agree. [00:15:37] Speaker 02: But if our position today is that the rule isn't final unless OFR puts it on public inspection, then how in the world could there be a criminal prosecution of someone for a non-final rule? [00:15:46] Speaker 04: Well, it can be not final for purposes of a person with actual notice, right? [00:15:53] Speaker 04: Right. [00:15:53] Speaker 04: And still not final with regards to the general public. [00:15:57] Speaker 04: or in the case here with the, I mean, as long as it's not final and they can withdraw it, I don't see actually since the question here is whether they could really, whether they could withdraw the rule without further notice and comment, right? [00:16:10] Speaker 02: That's right. [00:16:12] Speaker 04: So no one is harmed by their withdrawal of the rule. [00:16:16] Speaker 04: No one's gonna be criminally convicted of violating a rule that has been, that was withdrawn before it ever went to OFR. [00:16:25] Speaker 02: I think that the distinction I'm trying to draw is it was finalized for at least our client and its membership because our client and its membership knew they had actual evidence. [00:16:34] Speaker 04: Well, if your client were being prosecuted, or I guess in this case, fined or something, or if you were seeking judicial review, I think the case law would say you're correct. [00:16:46] Speaker 02: And we are indeed. [00:16:47] Speaker 04: But those are bright line rules in themselves. [00:16:50] Speaker 04: Actual notice provides, you know, [00:16:52] Speaker 04: provides a basis for prosecution or for review. [00:16:57] Speaker 02: Appeal. [00:16:59] Speaker 02: Right. [00:16:59] Speaker 02: And there wouldn't be judicial review available of a rule that wasn't final. [00:17:03] Speaker 02: We couldn't even be here. [00:17:04] Speaker 04: Only if it becomes final. [00:17:07] Speaker 04: And I think an agency statement. [00:17:08] Speaker 04: This is sort of gun jumping. [00:17:09] Speaker 04: It hasn't become final, but they file already. [00:17:12] Speaker 04: But that's not anyone's prejudice. [00:17:14] Speaker 02: I mean, I think the government made a similar argument in Humane Society. [00:17:17] Speaker 02: And the court said it was like Schrodinger's cat. [00:17:20] Speaker 02: Is it dead or alive? [00:17:21] Speaker 02: I don't know until I look in the box. [00:17:22] Speaker 02: The government wants it both ways. [00:17:23] Speaker 04: Nothing in Humane Society gave us a determinate line. [00:17:27] Speaker 04: It just said there's a point beyond which. [00:17:30] Speaker 02: I agree. [00:17:31] Speaker 02: And I think this is the next logical step in the line of Humane Society, that it's not just inspection by OFR. [00:17:38] Speaker 02: There's nothing special about OFR. [00:17:40] Speaker 05: Judge Childs, anything further? [00:17:42] Speaker 03: Yes, I was just going to say to the extent you're challenging the 2022 rule, what specific changes in the rule, in your view, fall outside of the scope of the 2019 MPRM and therefore are requiring this new notice and comment? [00:17:57] Speaker 03: In other words, that side-by-side comparison. [00:18:00] Speaker 02: First, I would say APA standard law is that once a record, an administrative record is closed, it can't be relied on by an agency go forward to do something else. [00:18:12] Speaker 02: So you've got to do a new NPRM, new notice and comment. [00:18:14] Speaker 02: So as a formal matter, that record was closed and there was nothing that could be done. [00:18:18] Speaker 02: There are significant differences between the 2021 rule and the 2022 rule that have harmed our client and its members to include choices in the 2022 rule around surety bonds and how much those are going to cost. [00:18:30] Speaker 02: They've made the program cost prohibitive for many members of our client. [00:18:34] Speaker 02: That's been a real problem. [00:18:36] Speaker 02: There's also issues around prevailing wage determinations, which has resulted in litigation in Washington. [00:18:41] Speaker 02: It's not been good. [00:18:46] Speaker 05: Anything else, Judge Childs? [00:18:49] Speaker 03: That's it. [00:18:50] Speaker 03: Thank you. [00:18:51] Speaker 05: OK, thank you. [00:18:52] Speaker 05: We'll give you two minutes. [00:18:53] Speaker 05: Thank you. [00:19:02] Speaker 05: Mr. Winnick, good morning. [00:19:04] Speaker 01: Good morning, Your Honor. [00:19:04] Speaker 01: May it please the court, Daniel Winnick for the government. [00:19:07] Speaker 01: So this court's decision in Kennecott establishes that when agency officials sign a rule and transmit it to OFR for public notice and publication, [00:19:15] Speaker 01: The agency retains for some period of time the ability to withdraw the rule and later substitute a revised version without further notice and comment. [00:19:23] Speaker 01: The court explained in Kennecott that a document that had been signed and transmitted to OFR never became a rule subject to amendment or repeal. [00:19:31] Speaker 01: So I think that's the answer to the APA-based argument you were hearing this morning. [00:19:35] Speaker 01: The fact that it has been finalized within the agency, quote, issued by the agency signed, sent to OFR does not make it a rule [00:19:43] Speaker 05: subject to amendment or repeal because it's never become law the court's decision in humane society holds that that period of flexibility ends the point the rule passes the point of no return once it's what do we make of 1503 which says upon filing right when the agency files with OFR the document shall be immediately available [00:20:12] Speaker 05: public inspection. [00:20:13] Speaker 01: So I don't think the upon filing language in 1503 actually refers to the transmission of the rule from the agency to OFR side point your honor to the last line of 1503. [00:20:24] Speaker 01: which distinguishes between transmission to OFR and filing, says every agency shall cause to be transmitted for filing the document. [00:20:34] Speaker 01: So I think the filing to which 1503 refers is the filing by the agency. [00:20:40] Speaker 01: And that's sort of, you know. [00:20:42] Speaker 05: Sorry, I'm just trying to. [00:20:44] Speaker 01: Sure. [00:20:44] Speaker 05: Walk me through it again. [00:20:46] Speaker 01: So the last line of 1503 says every federal agency shall cause to be transmitted for filing. [00:20:52] Speaker 01: So I think the thing the agency does is transmitting. [00:20:55] Speaker 01: The thing OFR does is file it. [00:20:57] Speaker 01: And just to point to an analogy, we're all sort of we colloquially refer to filing a brief with a court when we send it to the court. [00:21:04] Speaker 01: through ECF, but actually the thing we're doing is transmitting it for filing, and usually it's filed right away, but if the clerk's office finds some problem with it, it's not filed. [00:21:12] Speaker 01: And I think it's the same thing here. [00:21:14] Speaker 01: The person who does the filing is OFR. [00:21:17] Speaker 05: Okay, but then the last sentence, that sentence is, or the sentence I quoted seems oddly tautologic. [00:21:28] Speaker 05: If the agency does the transmission and then OFR does the filing for public inspection, [00:21:34] Speaker 05: 1503 says upon filing for public inspection, the document shall be immediately available for public inspection, which is oddly circular. [00:21:45] Speaker 01: Yeah, I mean, the way I understand 1503 is to say the agency transmits it to OFR for filing. [00:21:52] Speaker 01: OFR then files it. [00:21:53] Speaker 01: And once it's filed with OFR, it is immediately immediately available for public inspection. [00:21:58] Speaker 01: As the court said in Kennecott, this actually just doesn't speak to whether there is some period between transmission and filing. [00:22:05] Speaker 01: And as you heard my friend concede this morning, they haven't challenged the regs in this case. [00:22:09] Speaker 01: But I do think that the regs make textual sense. [00:22:12] Speaker 01: There is a difference between transmission and filing. [00:22:16] Speaker 01: And I think the court's holding in Kennecott that it's reasonable for OFR to have this period of confidential processing between transmission and filing remains sensible. [00:22:27] Speaker 04: So, in any event, immediately, truly is subject to circumstances that disrupt the operation of the government. [00:22:38] Speaker 04: That's certainly true. [00:22:39] Speaker 04: COVID, hurricanes, a glut of work coming in the last few days of an administration. [00:22:45] Speaker 01: So immediately is certainly a word that has some flex in it. [00:22:49] Speaker 01: But I do think the sort of salient point is it is immediately available once it's filed. [00:22:54] Speaker 01: But nothing in the statute says that it has to be filed as soon as it comes in the door. [00:22:58] Speaker 01: And it's commonplace in OFR's work, as the court recognized in Kennecott, for there to be something even longer than the usual two-day delay between transmission and filing. [00:23:08] Speaker 04: I'm sorry. [00:23:08] Speaker 04: Now, in your restatement, you lost me. [00:23:12] Speaker 04: on filing at least one copy is made immediately available for public inspection. [00:23:16] Speaker 04: And you just said about that. [00:23:19] Speaker 01: The entity that does the filing is OFR. [00:23:22] Speaker 01: So once OFR files it, it's immediately available for public inspection. [00:23:26] Speaker 01: But as Kennecott recognizes, there is a lag time between the transmission of a rule to OFR and the filing of that rule by OFR. [00:23:35] Speaker 04: So in other words, shall be filed with the OFR in the first sentence. [00:23:41] Speaker 04: is filed by the agency. [00:23:43] Speaker 04: But here upon filing, in that sentence, it's filing by OFR. [00:23:50] Speaker 01: Yeah. [00:23:50] Speaker 01: So I agree that you can read the first sentence to suggest that the person who does the filing is the agency. [00:23:57] Speaker 01: But I think the last sentence makes clear that what the agency does is transmit the document for filing. [00:24:02] Speaker 01: And then the document is filed with OFR once OFR accepts it and makes [00:24:07] Speaker 04: So we've got three sentences in play. [00:24:10] Speaker 01: Agreed. [00:24:10] Speaker 01: There are three sentences in play. [00:24:11] Speaker 01: Yeah. [00:24:12] Speaker 01: No, and it's, look, it's not a picture of clarity, but that's why you have the regulations which explain how it works. [00:24:16] Speaker 01: And as the court held in Kennecott, they're quite reasonable. [00:24:19] Speaker 01: And it's true, as your honor alluded a moment ago, even in sort of ordinary times, there is some delay between OFR's receipt of a rule and when OFR can make the rule available, filed and available for public inspection. [00:24:31] Speaker 01: At the end of administration, there's a glut of work. [00:24:34] Speaker 01: And with particularly long rules at any time, [00:24:37] Speaker 01: you know, more time is necessary. [00:24:39] Speaker 01: I mean, OFR's document processing handbook says, just as a bright line rule, if it's longer than 100 pages, it's going to take longer than two days. [00:24:47] Speaker 01: This rule, I think the doubles-based version was 732 pages long. [00:24:50] Speaker 01: So it's not surprising that this took longer than the usual two days. [00:24:55] Speaker 03: And how do you handle emergency requests with respect to what you were just stating? [00:25:01] Speaker 01: So the regulations do provide for emergency requests, both for emergency public inspection and for emergency publication. [00:25:10] Speaker 01: There's procedures laid out. [00:25:11] Speaker 01: There's criteria laid out. [00:25:14] Speaker 01: And basically, the agency, OFR, decides whether or not it's going to be able to do an emergency time frame. [00:25:21] Speaker 01: And what OFR said here is they just didn't have the resources available in the glut of work at the end of the administration to do that. [00:25:29] Speaker 05: Let me put a fourth. [00:25:30] Speaker 03: And then can an agency ever on its own finalize a rule through its own release, or are you suggesting that OFR filing is categorically required for legal effect? [00:25:42] Speaker 01: So the statute makes clear that a rule does not have legal effect against the world at large until it is filed public inspection with that's the system Congress has chosen. [00:25:53] Speaker 01: So I don't think an agency can do that on its own. [00:25:56] Speaker 01: Now, of course, an agency can ask for immediate publication. [00:26:00] Speaker 01: And yet if the president wanted, he could tell OFR to make certain that all rules submitted by agencies in the last days of his administration are made very quickly available for public inspection, but the agency cannot on its own do it by posting it on the website. [00:26:15] Speaker 03: and how did you all ensure just one i'm sorry ensure that these um um the dol ensure that each of the provisions that issue here for example the wage service standards bond requirements appeal process were actually a logical outgrowth of the 2019 nprm so plaintiff has not disputed that anything in this rule is a logical outgrowth of the 2019 npr and basically what happened is [00:26:40] Speaker 01: You had the 2019 NPRM, then you had the January 2021 draft final rule, which, you know, has always adopted some of the NPRM and some not. [00:26:49] Speaker 01: And then the 2022 final rule basically agreed with the 2021 draft rule on certain points and not on others. [00:26:56] Speaker 01: But they haven't, plaintiff hasn't disputed that anything that happened here was a logical outgrowth of the NPRM. [00:27:01] Speaker 01: There was no discomment on all of it. [00:27:04] Speaker 05: Just back to filing versus transmission for a minute. [00:27:08] Speaker 05: Yes. [00:27:08] Speaker 05: The first sentence of 1503 says the original and two duplicates of the document required or authorized to be published, which I assume is the rule, shall be filed with the office of the Federal Register. [00:27:26] Speaker 05: That seems to suggest the agency, the promulgating agency, is doing the filing. [00:27:33] Speaker 01: I don't think it does. [00:27:33] Speaker 01: I think it's a little unclear. [00:27:34] Speaker 01: I mean, I think we would say with a brief filed in this court, we would say the brief is filed with the court. [00:27:39] Speaker 01: But again, the thing that a lawyer does is transmit the brief to the court for filing. [00:27:43] Speaker 01: The clerk's office then decides whether it's going to be accepted for filing. [00:27:47] Speaker 01: And so when that happens, we would say the brief is filed with the court. [00:27:51] Speaker 01: It's on file with the court. [00:27:54] Speaker 01: But I think technically, you know, [00:27:56] Speaker 01: what the party does is transmitted and what the Kirk's office does is accepted for filing. [00:28:01] Speaker 01: I would just note on all of this, I mean, I think these are interesting questions. [00:28:04] Speaker 01: I don't, they haven't challenged the rule and you do have Kennecott saying, you know, or as far as reasonably construed the statute. [00:28:11] Speaker 05: I would also note- Kennecott is very strong for you, no doubt. [00:28:15] Speaker 05: I'm just trying to fit it into- I agree. [00:28:18] Speaker 05: Text here, which, you know, you're saying filed in the first sentence has that very, [00:28:26] Speaker 05: passive connotation without indicating the filer. [00:28:31] Speaker 05: But upon filing in the middle, it's the OFR, not the agency. [00:28:40] Speaker 01: I agree. [00:28:40] Speaker 01: I think it's the last sentence of the provision that does the most work in making clear that the thing the agency does is transmitted for file. [00:28:47] Speaker 01: I would note just parenthetically, the statute changed slightly in January of this year. [00:28:51] Speaker 01: It's substantively the same, but they've removed some of the references to the copies. [00:28:57] Speaker 01: So on the case law, I mean, plaintiff is correct that in Humane Society, the court formally reserved the question whether a rule could pass the point of no return [00:29:07] Speaker 01: before public inspection if it's publicly posted by the agency. [00:29:10] Speaker 01: But everything about the reasoning of Humane Society makes clear that it can't. [00:29:14] Speaker 01: I think we may have lost Judge Childs. [00:29:15] Speaker 05: I think we may have lost Judge Childs. [00:29:19] Speaker 03: I'm still here. [00:29:20] Speaker 03: I can still hear you. [00:29:21] Speaker 05: Okay. [00:29:21] Speaker 05: Okay, we can't see you. [00:29:22] Speaker 05: That's all right. [00:29:23] Speaker 03: Oh, I'm not sure why. [00:29:24] Speaker 05: Okay. [00:29:27] Speaker 05: Humane Society reserved [00:29:32] Speaker 05: The debate in Humane Society between Judge Tatel and Judge Rao was over the point at which you win this case or a later. [00:29:41] Speaker 01: Exactly. [00:29:41] Speaker 01: Yes, that's right. [00:29:42] Speaker 01: And the reservation, I don't think was sort of, I mean, I realize it was a formal reservation, but everything but the logic of Humane Society suggests that public inspection is not just sufficient, but necessary. [00:29:54] Speaker 01: And that's how the court read Humane Society in GPA midstream. [00:29:57] Speaker 01: The court wrote there that, quote, until [00:30:00] Speaker 01: A rule is filed for public inspection. [00:30:02] Speaker 01: It quote may be withdrawn without explanation or notice and comment is and is not valid and enforceable against the public at large and the court in GPA midstream was not ignorant of the fact that rules could be sometimes posted publicly online because that had happened in that case, just as it happened here and in humane society and the court clearly noticed that it had happened because the court called for supplemental briefing on whether [00:30:23] Speaker 01: The petition for review in that case was timely and it wouldn't have been timely at the clock started running when it was posted online. [00:30:32] Speaker 01: But the court held that it was timely. [00:30:34] Speaker 01: The petition was timely because the clock started running no earlier than public inspection. [00:30:39] Speaker 01: And I would just one sort of last point. [00:30:42] Speaker 01: As a couple members of the panel noted this morning, Brightline rules are really important in this context. [00:30:47] Speaker 01: We are here talking about the legal effect of a 2022 rule. [00:30:51] Speaker 01: We're here in 2025 and we sort of can't be having debates, you know, two and three years after a rule has been promulgated by the agency where the validity of the rule would in plaintiffs view turn on whether [00:31:02] Speaker 01: you know somebody outside the agency saw it you know here it was posted online on the agency's website and there was some conference call you know but in other but they've already sort of recognized maybe maybe the email blast wasn't necessary you know in some other cases you'd have well it was on a back page of the website maybe nobody saw it maybe only a few people saw it maybe only half the regulated community saw it that's sort of no way to run a railroad and i think this court's case law [00:31:26] Speaker 01: in Kennecott and Humane Society and GPA Midstream tells you everything you need to know to say that the Brightline rule should be the point of public inspection. [00:31:36] Speaker 03: I'd like to address standing briefly. [00:31:38] Speaker 03: You don't seem to contest the 2022 rule, you know, with respect to standing to challenge that rule, is that correct? [00:31:45] Speaker 01: So the district court found and we have not disputed that they have standing to challenge the surety bond provision of the 2022 final rule. [00:31:54] Speaker 01: We did contest their standing in the district court as to other provisions in the 2022 final rule. [00:32:00] Speaker 01: The surety bond provision is severable from the others and they've disputed that and so [00:32:04] Speaker 01: If the court held against us on the merits, you know, there would be separate questions of what the right remedy would be. [00:32:09] Speaker 01: And the district court might need to sort out whether they had broader standing to challenge the rule, but we haven't disputed their standing to challenge the surety bond provision of the final rule. [00:32:17] Speaker 05: Is that okay? [00:32:18] Speaker 03: Then with respect to the 2021 rule, are you suggesting that they lack standing to challenge the withdrawal of that rule based on an injury or because the action wasn't final or both? [00:32:29] Speaker 01: It's based on the injury. [00:32:30] Speaker 01: So I actually don't think in this court they are challenging the withdrawal of the 2021 final rule. [00:32:35] Speaker 01: What they're challenging still is OFR's action or inaction with respect to the 2021 draft rule. [00:32:42] Speaker 01: And as the district court held, they don't have standing to do that because their members were actually better off because OFR didn't publish the 2021 draft rule. [00:32:52] Speaker 01: It meant that for that two-year period after that, they had lower assurity bond requirements rather than higher ones. [00:32:58] Speaker 05: Standing to challenge the 22 rule depends on the proposition that some aspects of it are less favored to them. [00:33:10] Speaker 01: I think that's right. [00:33:11] Speaker 05: I think the surety bond provision is an example of that. [00:33:16] Speaker 01: So the surety bond provision is unfavorable to them vis-a-vis the 22. [00:33:20] Speaker 01: 22 vis-a-vis 21. [00:33:21] Speaker 01: No, sorry. [00:33:23] Speaker 01: The surety bond provision is the same in 21 and 22. [00:33:27] Speaker 01: The surety bond provision of the 2022 rule is less favorable for them than the 2010 rule. [00:33:33] Speaker 01: And so the reason they have standing to challenge, we think, the 2022 final rule is they were harmed by the change from 2010 to 2022. [00:33:42] Speaker 01: But the surety bond provisions. [00:33:43] Speaker 05: But on their theory, the 21 rule became effective and not withdrawable and was not properly withdrawn. [00:33:55] Speaker 05: I mean, I'll ask your friend on the bottle. [00:33:56] Speaker 05: I would think the relevant comparison is 22 versus 21. [00:33:59] Speaker 01: I think that's possible. [00:34:01] Speaker 01: And to be clear, we would not object to ruling in our favor on standing grounds. [00:34:04] Speaker 01: But that's the basis. [00:34:05] Speaker 01: That is the basis on which the district court found standing was 22 versus Ted. [00:34:11] Speaker 05: Judge Childs, anything else? [00:34:13] Speaker 03: No, thank you. [00:34:15] Speaker 05: Thank you. [00:34:22] Speaker 02: If I may, I'd like to go back to 44 USC 1503. [00:34:26] Speaker 05: Can you just while it's fresh in my mind, can you help me with standing? [00:34:30] Speaker 05: Yes, your your theory. [00:34:32] Speaker 05: Your theory is that the 2021 rule. [00:34:38] Speaker 05: Became effective. [00:34:40] Speaker 05: Had the has the force of law can only be withdrawn. [00:34:43] Speaker 05: Based on notice and comment correct and that's your that's your theory for saying the 22 rule is invalid. [00:34:53] Speaker 05: and therefore the 21 rule is effective, remains effective. [00:34:58] Speaker 02: I don't know about that. [00:34:59] Speaker 02: What I'm saying is that since 21 became final, its administrative record closed and the agency couldn't use that administrative record to make anything new. [00:35:09] Speaker 02: Our client has not challenged the withdrawal of the 2021 rule because it prefers 2010 to 2021. [00:35:15] Speaker 05: Okay, so if you win in this appeal, [00:35:20] Speaker 05: We go from that. [00:35:22] Speaker 05: We set aside the 2022 rule and the 2021 rule is effective. [00:35:29] Speaker 02: It may be, and I think that's a better question for the district court than up here and that they haven't challenged it that your whole theory here is that it became final. [00:35:40] Speaker 02: It became final and then the agency took it down. [00:35:42] Speaker 02: I think that was unlawful, but we haven't challenged it. [00:35:45] Speaker 02: From our client's perspective, 2010 was always the rule that, as for them, stayed in effect without change. [00:35:53] Speaker 02: So they never experienced or lived under 2021. [00:35:57] Speaker 05: Suppose we shift from the 22 rule to the 21 rule. [00:36:04] Speaker 05: Just suppose that. [00:36:06] Speaker 05: Would your clients have any regulatory benefit? [00:36:12] Speaker 02: Yes, they would. [00:36:12] Speaker 02: And I think we made that pretty clear in the district court that our client prefers 2010, but 2021 is much preferable than 2022. [00:36:22] Speaker 05: But not because of the surety bond provisions. [00:36:24] Speaker 05: There are other provisions. [00:36:27] Speaker 02: I disagree with my friend who thinks that it's the same as between 21 and 22 on surety bonds. [00:36:32] Speaker 02: I think that 22 surety bonds issue is really, really bad for our client, and they would prefer 21. [00:36:40] Speaker 02: Okay, sorry. [00:36:42] Speaker 05: I'll give you more time. [00:36:43] Speaker 02: Thank you. [00:36:44] Speaker 02: I appreciate it. [00:36:46] Speaker 02: Going back to 1503, if I might, just looking at the first sentence, this is talking about filing of rules with the OFR. [00:36:53] Speaker 02: It says, essentially, the agency shall file them with OFR, which shall be open for that purpose. [00:36:59] Speaker 02: Then the archivist shall note on the document the agency filed when it was filed. [00:37:03] Speaker 02: And here's what's interesting going to the middle. [00:37:07] Speaker 02: When the original document, when the original rule is issued, prescribed, or promulgated outside the district, then the notation shall be the hour of filing of the certified copies. [00:37:18] Speaker 02: So even the OFR Act clearly says the agency is the one that does the issuing, prescribing, or promulgating. [00:37:27] Speaker 02: Because otherwise, this sentence doesn't make any sense. [00:37:30] Speaker 02: So agency issues a rule. [00:37:32] Speaker 02: They have the original, and then they file it with OFR. [00:37:36] Speaker 02: And OFR is then supposed to stamp it and put it on public inspection. [00:37:41] Speaker 02: All of this contemplates final agency action ahead of the actual public inspection. [00:37:47] Speaker 02: But there may be a bright line that we can draw here, which is not just agency website, agency press release, but the agency filing for public inspection with OFR. [00:38:01] Speaker 02: Then we don't give our the power to say no. [00:38:04] Speaker 02: We're not doing it. [00:38:06] Speaker 02: Agency says here it is. [00:38:09] Speaker 02: Here is a far. [00:38:10] Speaker 02: That's the end of the line. [00:38:12] Speaker 02: That's the bright line that we can draw. [00:38:14] Speaker 02: That's what I'd like to do. [00:38:15] Speaker 05: OK, Judge Childs. [00:38:17] Speaker 05: Any anything further? [00:38:19] Speaker 05: Nothing forward further. [00:38:20] Speaker 03: Thank you. [00:38:22] Speaker 05: OK, thank you. [00:38:22] Speaker 05: Thank you counsel. [00:38:23] Speaker 05: Case is submitted and we will take a brief recess to bring out Judge Garcia.