[00:00:02] Speaker 06:
Mr. Levy, good morning, whenever you're ready.

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

[00:00:08] Speaker 04:
The FRA in this case granted a waiver of the Buy America mandate to permit Brightline to contract with Siemens to procure train sets manufactured abroad when my client Alstom stood ready to manufacture them here. The FRA justified the waiver on the basis that the non-availability waiver under the statute supposedly varied by technology and design or really by supplier.

[00:00:32] Speaker 04:
Because that has no basis in the statute and because the government's action was arbitrary and capricious, my client sued and the case was dismissed for lack of standing. The court should reverse the standing decision and reach the merits and order judgment in favor of my client. The Alstom here was one of two suppliers of train sets.

[00:00:53] Speaker 04:
The record is clear that there are only two manufacturers in the world who have manufactured high speed train sets, Alstom and Siemens.

[00:01:02] Speaker 04:
Alstom was described as a competitor in the papers below and in the submissions to the FRA. The FRA granted the waiver recognizing that Alstom could build the train sets abroad and did so recognizing that it would increase competition and that the waiver was necessary for Siemens to build the train sets and to be contracted with.

[00:01:33] Speaker 04:
Therefore, there is an injury, in fact, indeed multiple types, competitive harm, harm to a lawful procurement process, and a loss of the contract. Those injuries were all caused by the FRA's decision to waive Buy America's Mandate, which has been a mainstay of American procurement law for decades. And it could be redressed by a vacator, which would return to the status quo and permit a process to start again. And given the representations that were made to the FRA when federal funding, $3 billion in federal funding was sought.

[00:02:11] Speaker 06:
Suppose we agree with you about causation on the front end. This might be one of those...

[00:02:20] Speaker 06:
relatively rare cases where redressability on the back end is a little bit different. I assume things on the ground have changed, right? Is there a contract now in place with Siemens?

[00:02:34] Speaker 04:
There was a contract that was reached after the waiver was granted.

[00:02:38] Speaker 06:
What do we know about that?

[00:02:41] Speaker 04:
We know that it was...

[00:02:44] Speaker 06:
The contract's in place. They'll face huge breach of contract liability if they try to go the other way. Maybe it's just too late to help your client.

[00:02:55] Speaker 04:
Right. Well, the record doesn't support that inference, and there's certainly no evidence of that in the record. That was before the district court, or that's in front of this court.

[00:03:04] Speaker 04:
What was said to the FRA when $3 billion in federal funding was sought was that the waiver was necessary for this project to proceed.

[00:03:16] Speaker 04:
So that is clear, and that's at JA 47 and 48. The FRA said that

[00:03:23] Speaker 06:
Who's saying that? Alston or Siemens?

[00:03:26] Speaker 04:
This is the FRA. When it granted the waiver for the two train sets to be manufactured abroad, the FRA said that without the waiver, Siemens couldn't proceed and that the two first cars needed to be built abroad. And so if the waiver is vacated, then the federal funding cannot continue to be dispersed, and they will have to either seek a new waiver, in which case we'll go through the process again, and there's a chance, which is enough, for the waiver not to be granted, and the competitive situation will have been restored, which is enough under the competitive injury cases.

[00:04:09] Speaker 03:
Why wouldn't they just build the trains in America?

[00:04:12] Speaker 04:
Well, they said to the FRA that they couldn't,

[00:04:15] Speaker 03:
I mean, you can do anything with enough money. So, I mean, it's probably cheaper to build the first two there and have the people train there and then come here and build the other eight. But, I mean, you can build anything in America. Sometimes it's just more expensive. Right.

[00:04:31] Speaker 04:
Well, the...

[00:04:34] Speaker 04:
There is a requirement to get the federal funding. You do have to get to build in America. Right. So your question is why they wouldn't build in America. I mean, they said they told the FRA they couldn't. So that's what they told to the FRA. Presumably when they sought three million dollars in federal funding, they were saying the truth. There's False Claims Act liability if you don't. They're now saying in briefing that maybe they don't need to, but there's really no record evidence of that. I suppose they could forego the federal funding, but what they told the FRA is that it was critical to proceed and that the project couldn't proceed without it.

[00:05:08] Speaker 03:
And so the record before the court... To your credit, I don't think they will forego the federal funding. $3 billion is a lot of money, but it seems like it probably doesn't cost...

[00:05:19] Speaker 03:
$3 billion more to build two trains in America than it does in Europe.

[00:05:24] Speaker 04:
Right. I guess all I can say is the record before the FRA was that this waiver that they couldn't proceed with Siemens without the waiver and that the waiver was needed to build the two train sets abroad. That leads that to the FRA. The FRA accepted that as true. That's in its decision, JA 47 and 48.

[00:05:44] Speaker 04:
And so if you accept those two facts as true, which I think we have to, Then it follows that, number one, vacuator would restore the status quo and restore the competitive situation that existed before the contracting. It would permit a lawful procurement process to proceed.

[00:06:05] Speaker 04:
And there's a likely chance that we would get the contract. And so based on the record, I don't think there's a reasonable inference that could be made that they would build the train sets here. They certainly haven't put evidence in the record that would permit that economic inference.

[00:06:20] Speaker 06:
They said they couldn't, but that's in the context of a statutory inquiry whether goods are produced in a sufficient and reasonably available amount or are not of satisfactory quality. That sounds like it's not focused on physical impossibility. It's an economic criterion.

[00:06:50] Speaker 06:
So in that context, you say, well, we couldn't do it here. It doesn't mean...

[00:06:57] Speaker 06:
physically impossible. I'm coming back to Judge Walker's question of, you know, if prices now matter because $3 billion are riding on it, well, then you could. And that's not really a false claims act misrepresentation.

[00:07:16] Speaker 04:
Well, the representation that was made, it's in the joint appendix. I'm sorry, I don't have, it's in the waiver request for the semen strain status that was necessary for safety and other reasons.

[00:07:27] Speaker 04:
And so it wasn't just about price. I think if it had been about price, then the question would have, then the relevant waiver would have been under a different provision, which speaks to whether the cost increased by 25%.

[00:07:42] Speaker 04:
And the way the FRA talked about it, again, this is JA 47. It says the first two train sets would need to be manufactured in Germany. That's at the bottom of the page on the right.

[00:07:53] Speaker 04:
And then again, on JA 48 at the top, The FRA says, as such, the first two Valero EMU train sets would have to be manufactured in Germany. So that's pretty definitive. I don't think it's about economics at all. And it's certainly enough for standing purposes to proceed. And so...

[00:08:11] Speaker 04:
There's an argument made that we can't rely on the procurement line of cases. This is, of course, not just a private bidding. There was a notice of funding opportunity by the FRA to have federal funding in place. And there are regulations in place that require the private bidder in that sort of situation to abide by certain requirements, including to engage in competitive procurement and to abide by Buy America. So we think the court should reverse on the standing issue, and it should also reach the merits.

[00:08:40] Speaker 05:
The merits, of course, include... So on standing, one piece, which we've already talked about, is the incentive they would have to keep working with Siemens. The other thing we're going to hear when the appellees stand up is that you can't do the job. So what is your best argument based on the allegations of the complaint or anything else on the record that Alston actually can do this work?

[00:09:02] Speaker 04:
Right. So there are a few things. Number one, Brightline, of course, did seek a waiver. They went through a multi-year competitive process. This is all on the record. Asked for best and final from Alstom and Siemens. Went through the process and the FRA sought a waiver from for both Alstom and Siemens. And it wouldn't I don't respect.

[00:09:23] Speaker 05:
But how much how much is that of a cost on Brightline? Essentially, they might just say they're keeping their options open. And they wanted a waiver for both companies, but they always knew they were going to work with Siemens.

[00:09:36] Speaker 04:
Right. Well, I guess I would say they did seek the waiver. And if they sought a waiver thinking that we wouldn't be able to do it, that would be an odd thing. That would be a very odd thing to do.

[00:09:48] Speaker 04:
And the FRA, in fact, granted a waiver. And the alternative said if they hadn't gone with Siemens, we would grant the waiver for Alstom. The FRA accepted as true the representation that Alstom could do it. Alstom, in fact, as a company, has built high-speed trains abroad, the TGV. And the FRA says, except it's true that we would be able to adapt our technology to match the capabilities that Alstom, the company, had built in Europe under the TGV. So that's JA48.

[00:10:20] Speaker 04:
It says that our capabilities would be consistent with performance achieved by Alstom's TGV trains in Europe, which are high-speed trains that go beyond 186 miles per hour. So that was all accepted as true by the FRA. It was, I think, if not expressly implied, at least implicitly implied by Brightline, when they sought a waiver for Alstom, that Alstom would be able to do it. And so for purposes of standing, that is more than adequate to show that we would be able to satisfy the request.

[00:10:54] Speaker 04:
And of course, this dovetails a bit with the merits. I think there's an argument that the FRA relied on our supposed inability to build the train sets up here and having... Before you get to the merits, you said, for standing purposes adequate to show...

[00:11:12] Speaker 06:
Fill in the blank for me on the legal standard. Is it reasonable likelihood that you would get the contract?

[00:11:25] Speaker 06:
And this is a little bit like a procedural injury case. You could put this in different standing buckets. And I think you need to show definitively that you would get the contract. But what's the...

[00:11:41] Speaker 06:
What's the line between close enough to create a live dispute going forward and too speculative.

[00:11:49] Speaker 04:
Right. So I agree with you, Your Honor. We don't need to show definitiveness or even very likely. And it depends on the standing theory. So if the theory is a competitive injury, then it's really just a restoration of the prior status by removing the waiver. That's really enough to restore the status quo.

[00:12:07] Speaker 04:
Same thing for the procurement injury.

[00:12:09] Speaker 06:
That can't be enough unless you have some...

[00:12:13] Speaker 06:
Right. You're actively in competition for the bid.

[00:12:17] Speaker 04:
Right. And I think the case is just referred to having a chance and don't quantify their requirement. I suppose the line is certainly drawn as if it's too speculative, then that's not adequate. But that's really not the situation. And I think certainly in the procedural injury cases, something akin to reasonable likelihood.

[00:12:37] Speaker 06:
I suppose I think it's just a standard argument. Bennett versus Speier kind of case where you have an issue, you have a standing issue because we have to predict the effect of a decision on a third party, not before the court.

[00:12:54] Speaker 04:
Right.

[00:12:55] Speaker 04:
I think a reasonable likelihood test is adequate in the circumstance of this case.

[00:13:01] Speaker 04:
But given the evidence and the reasoning the FRA was represented to the FRA, I think we meet a much more stringent standard regardless.

[00:13:10] Speaker 06:
Anything else outstanding? I'll give you a minute or two on the merits if you want.

[00:13:15] Speaker 04:
Well, we do think the court should reach the merits in the interest of judicial efficiency. These are pure legal questions, raising pure administrative law questions that this court typically handles de novo without reviewing them from the district court. In this case, of course, jurisdiction is in the district court in the first instance. But the issues have been fully briefed. They are purely legal.

[00:13:38] Speaker 04:
An appeal from an adverse ruling in either direction is very likely, and so it makes perfect sense in terms of judicial efficiency and due process and otherwise for the court to reach the merits. The merits, in fact, particularly given how clear the merits arguments are in this case, The argument that was made by the FRA for granting the waiver was that the non-availability waiver varied by technology and design. That's not a ground that anyone adopts today.

[00:14:08] Speaker 04:
It was abandoned from day one, and it's clearly wrong. The argument that the government made below for the statute is one that is not sponsored here either. It was post hoc to begin with, but it's been abandoned here as well. And that was the idea that if a single component was built abroad, then that would justify a broader waiver. And now the argument they're making is that the use of the word are produced and are not produced in a non-availability waiver has a different meaning than in the mandate.

[00:14:39] Speaker 04:
And that just... makes no sense under the plain text of the statute and every canon of construction that won't reply to reading it. So the merits are so clear, and it's a pure legal question. And given the arguments that are made about the passage of time, it makes perfect sense for the court to reach in the first instance. I would add that when we were in the district court, about a year ago and the court promised to reach a decision quickly, the white line stood up and said it was a need in this case for a quick ruling because all of that, the passage of time, is detrimental to the project and to the expectations of the parties.

[00:15:19] Speaker 04:
So I would really think that it would be in everyone's interest and in the interest of the judicial system to just have this court address the merits in the first instance. And we think, again, the merits ruling is clear. I'm happy to answer questions. I think it's clearly arbitrary and capricious. They're relying on... Judge Walker.

[00:15:40] Speaker 06:
Judge Garcia. Okay. Thank you. We have your position. I'll give you a few minutes. Thank you, Your Honor.

[00:15:51] Speaker 01:
Thank you, Your Honor.

[00:15:58] Speaker 01:
Alstom lacks standing here, Your Honor, and I think that there's three points that bear particular emphasis in light of Mr. Levy's presentation. The first is that the burden here to show standing is Alstom's. The question of whether there's evidence in the record to show a likelihood of how Brightline West will react in a particular way or another particular way to the vacator, hypothetically, of the Buy America waiver is Alstom's burden to meet.

[00:16:22] Speaker 06:
True, but we have said that in cases like this, we can think about common sense, economic realities, right? There are two bidders, and this waiver thing is going to swing $3 billion.

[00:16:42] Speaker 01:
It's absolutely true, Your Honor, that you can consider common sense economic realities here. I would push back a little bit on the notion that that sort of set of common sense intuitions is quite as good of a fit here in a case about a discrete competition. And really, you can think of it as a market for one project between two bidders. It might be not quite as good of a fit here as it is in some of the cases involving larger, more liquid markets.

[00:17:05] Speaker 06:
I think that makes it a perfect fit, right? I mean, one or the other of these companies is going to get... this contract.

[00:17:13] Speaker 01:
But in any case, Your Honor, regardless of whether you think that bucket is the right way to address it, the common sense intuitions here clearly run against Alston's standing.

[00:17:23] Speaker 01:
As you noted, there's a great deal of water over the dam here, not just since this case was filed, but even leading up to it. This was a five-year procurement process leading to a decision to build a complex, highly integrated high-speed rail system dependent on Siemens trains in particular. There's no evidence whatsoever in the record, Your Honor. that if the waiver were vacated, Brightline West wouldn't take on any one of the several other options it has to proceed with the project to receive federal funding and to avoid substantial delay without upsetting its keystone supplier relationship.

[00:18:01] Speaker 06:
You're not resting on the possibility that they'll just walk away from $3 billion? No, Your Honor. So what are the other options? If you take us again, we can assume for redressability purposes...

[00:18:16] Speaker 06:
they are going to do whatever they have to do to get the $3 billion. And then you have Siemens and Alston, and Alston has the domestic option, which allows the $3 billion in funding. And insofar as we know, based on this record, Siemens has a foreign option, which would foreclose federal funding.

[00:18:43] Speaker 01:
I don't think that that's correct, Your Honor. To move forward with Siemens, there would be at least two domestic options. The first option, as Judge Walker noted and as we emphasized in our brief, is that they could build the first two trains, in other words, all 10 train sets here in the United States. I want to speak briefly to what Mr. Levy said. I don't agree with his characteristic of the record as Siemens and Brightline West representing to FRA that there was, in fact, no way to build the trains here in the United States safely and at reasonable quality without building the first two in Germany.

[00:19:17] Speaker 01:
That was certainly at the time highly relevant, as you noted, Judge Katzis. to the government's assessment of whether there was present production of such goods of that class of high-speed train in the United States. But as I read the record of their representations to FRA, it's much more in the nature of there's significant advantages to this practically, that so long as the trains aren't available here in the United States, that it makes sense to be able to do a staged process of localization that would pay significant dividends

[00:19:48] Speaker 05:
I mean, you can certainly say to us that there are strong incentives to figure something out with Siemens. And one plausible sounding idea is that they would just build the first two here. But a few things are notable. Siemens has never said that. And there might be obvious reasons they're not saying it.

[00:20:05] Speaker 05:
But they have not said that. We have no idea how much it would cost. And so how can we say that that's sort of the most plausible outcome here?

[00:20:15] Speaker 01:
Well, first, Your Honor, just to return to what I think is really a key point here is that the burden to show standing, the burden to show that Alstom's standing is Alstom's burden. To the extent you have questions about, well, isn't this speculative about what's going to happen? The question is not, is it the most likely thing that Brightline West is going to act in the way that redresses Alstom's injury? The question is, has Alstom shown that it is likely that it is in fact likely? I think it's worth quoting from Hakata here, has also shown a substantial evidence of a causal relationship between the government and Brightline West conduct that leaves little doubt as to the likelihood of redress.

[00:20:52] Speaker 01:
And here, where they could build the first two trains in the United States, or frankly, they could simply operate the railroad with eight train sets instead of ten.

[00:21:02] Speaker 01:
And where they have options to proceed with their chosen supplier or relationship that they had envisioned with last decades, they spent more than five years picking. It seems plain to me that it is at the very least not clearly likely. that they are going to react.

[00:21:18] Speaker 05:
Can you give your answer to Judge Katz's question? How much more likely does it have to be? We have cases that say a significant increase in likelihood. We have cases that say if it's at least as plausible one way or the other. Is it 51%? Is it something like a 30% chance? What do you, how would you want us to think about that?

[00:21:38] Speaker 01:
This court explained in Hecate, and I think this is consistent with what the Supreme Court said in Diamond, that the question is likelihood.

[00:21:45] Speaker 01:
Typically, when courts refer to things being likely, that would mean 51% chance. And in fact, Hecate specifically says that it's not sufficient to show standing if it's merely a matter of, oh, it's as plausible that it will happen one way as that it will happen another. It's a question of likelihood. Is there a likelihood that this court's opinion potentially vacating the waiver is going to be something other than advisory?

[00:22:08] Speaker 06:
Suppose we think of this as a little bit like a procedural injury case.

[00:22:18] Speaker 06:
It's a little bit like a fair bidding, fair process case, right? In cases like that, the grief party typically doesn't need to show a high degree of likelihood that it will succeed once the procedural error or the tilting of the competitive field is set aside or equalized.

[00:22:50] Speaker 01:
Well, there's two key links here in terms of that redressability analysis that are missing. There are two key links there, Your Honor, that are missing in this case. First, if you think of this as a big process type injury, certainly you can imagine if we were here in a private contract suit, That the bidder in a purely private procurement would argue, you defrauded me, you injured me somehow by treating my bid unfairly. And you could imagine that giving rise to standing and the opportunity to issue a redressable judgment with respect to that private party.

[00:23:20] Speaker 06:
Even if you don't know that that private party would get the contract.

[00:23:25] Speaker 01:
Exactly, Your Honor. On remand in fair process. Exactly, Your Honor. And in the cases where the government is the one soliciting the bids, it works exactly the same. You can order the government to vacate the award. And according to the procurement laws and regulations, if the government then wants to go forward buying what it wanted to buy in the first place, it needs to conduct a new solicitation. And that's where the redress comes in. We accept that the outcome of that solicitation isn't foreordained, and we treat it as a disability the fact that this court can, in effect, order a new solicitation to be undertaken.

[00:23:56] Speaker 06:
And this seems analogous, right?

[00:24:00] Speaker 01:
It's not, Your Honor, because here the government wouldn't be ordering the contract between Brightline West and Siemens to be vacated. It wouldn't be ordering Brightline West to conduct a new solicitation. It would be vacating the waiver and leaving Brightline West to determine.

[00:24:14] Speaker 06:
Brightline will have to make. A new assessment that's unburdened by, you know, we assume the merits for standing so unburdened by an unlawful.

[00:24:27] Speaker 01:
waiver. Perhaps in some theoretical sense, Your Honor, Brightline will have to say, well, you know, we'd made a decision. The status quo has now been upset. And in some formal sense, we need to make a new decision. That's a far cry from reopening a bidding process, which there's no evidence in the record that they would do and which we know from the and which we know they wouldn't have to do. They'd be perfectly allowed under the terms of their own agreement or under there's there would be no obstacle in federal procurement law that I'm aware of for them simply deciding, well, now that we don't have this waiver to build two transits in Germany, we're going to either build all 10 in the United States or move forward with eight.

[00:25:05] Speaker 01:
There's no legally required step that they would be needing to take that would give Alstom the opportunity to compete anew in the way that you see in the government procurement crisis.

[00:25:15] Speaker 06:
But it's more than...

[00:25:17] Speaker 06:
It's more than just something ministerial, dotting an I and crossing a T. If we take your very reasonable admission that the $3 billion subsidy is driving these arrangements, driving their decisions.

[00:25:44] Speaker 01:
Nevertheless, Your Honor, I think what's underlying the discussion that we're having is that the procedural injury is not really what would be redressed here. If the procedural injury is Alston was forced to contend with what it says is an unfair bidding process, the bidding process wouldn't be undone. What would be undone is the waiver that is underlying the current arrangement under which Brightline West can receive federal funding. The real injury that Alston would be seeking to be undone, that it claims could be undone by Brightline West potentially moving in a different direction commercially, is the opportunity to compete in a meaningful way for this particular contract.

[00:26:22] Speaker 06:
I'm not sure you can slice things up that way, though. The Supreme Court has said a procedural injury in a vacuum is not concrete for Article III purposes. It has to be linked to the possibility of securing something tangible at the end of the process.

[00:26:44] Speaker 01:
It comes back here again, Your Honor, just to whatever procedural injury Alstom alleges to have suffered isn't one that this court's judgment would be remedying.

[00:26:54] Speaker 01:
it wouldn't be remedying any alleged procedural injury in the bidding process as between Alstom, Siemens, and Brightline West. And to tie off one quick loose end, Your Honor, from something you mentioned earlier, I think the same goes if you put this in the sort of competitive injury bucket.

[00:27:13] Speaker 01:
Ordinarily, when we look at the sorts of cases that competitive injury comes up in, large liquid markets, we can make presumptions that when a supply of a particular fungible good is contracted or expanded, that the market will react in predictable ways. Here, those same intuitions don't necessarily hold with respect to a very complex, carefully procured high-speed train set. But even if you were to look to sort of general intuitions about how the commercial realities here would play out for the reasons I've explained, the reasons we've explained in our brief, there's simply no likelihood that Brightline West would move to blow up its key supplier relationship when it simply doesn't have to based on the facts and the law before the court.

[00:27:58] Speaker 01:
And just briefly on the merits, Your Honors.

[00:28:00] Speaker 03:
Before you go to that, how much more, how much better, let's assume that the cost of an Alston contract and a Siemens contract are the same. They both say, you know, put aside the waiver, all this, just like we will both deliver you 10 trains, right?

[00:28:25] Speaker 03:
Uh, Siemens, I think it offers a better product because they've built trains this fast before and Austin hasn't. It's a little hard to quantify how much better that deal is coming from Siemens than from Austin. Can you try to try to say, I mean, how much better is Siemens as a partner here than Austin?

[00:28:50] Speaker 01:
I would defer to Brightline West Council to give you some of those details, Your Honor. What I can say standing here representing the government and with the record in front of me that you have is that the evidence clearly shows that Brightline West thought very, very hard about this, and it made a carefully considered decision, and that there is little to no, nothing to suggest in the record that it would blow up that decision today. And they made that decision before the waiver, right? They did, Your Honor, yes.

[00:29:21] Speaker 05:
Just briefly on the merits. Sorry, one last question. Do you agree the standard of review is, or we should proceed as if we're reviewing a motion to dismiss, right? So we're applying the Twombly standard to the...

[00:29:35] Speaker 01:
I don't think it makes a difference to the outcome in this case, Your Honor. There is an administrative record produced. There was a declaration put in the record by Brightline West. Outstanding.

[00:29:45] Speaker 05:
It was targeted to the fact that an injunction had. Yes. The plaintiff hasn't put in a declaration because we're on a motion to dismiss. That's sort of what I'm getting at.

[00:29:55] Speaker 01:
I think that that would be the most straightforward way to review the judgment bill, Your Honor. What would be the most straightforward? As Judge Garcia mentioned, to review this as a ruling on a motion to dismiss.

[00:30:07] Speaker 03:
I mean, they said, you know, dismissed, but I mean, unlike a motion to dismiss before discovery, there was a lot of discovery.

[00:30:19] Speaker 01:
And this is why I think it's important to note that I don't think it makes a difference to the bottom line of this case. If you were to proceed as Judge Garcia suggested and look at only the four points, the complaint and other things subject to judicial notice.

[00:30:35] Speaker 03:
Let's say we said reversed on the motion to dismiss. And then the district court tomorrow says, okay, I got all the discovery in front of me. Summary judgment, no standing. I mean, right back here.

[00:30:48] Speaker 03:
Why wouldn't we just say whether there was a motion for summary judgment? So why wouldn't we say whether there was standing under the summary judgment standard?

[00:31:02] Speaker 01:
I think that there's enough in the record, Your Honor, that you could certainly proceed and say there's been a significant exchange of factual material in this case. This is an administrative record produced. This is a suitable vehicle for deciding on a summary judgment-type ground. And if that's the case, then Alston lacks standing for all the reasons I just expressed. It might cut the other way.

[00:31:24] Speaker 03:
I mean, it might be that the stuff in the discovery helps show that there is standing.

[00:31:28] Speaker 01:
Certainly. And this is what I was getting at in response to Judge Garcia's question, that if you look at, I believe it's paragraph 48 of Alstom's complaint, that's really all there is in the complaint that goes to addressability. And it's really very little. It's substantially less than we've been talking about in terms of the relative to what we've been talking about here today at argument. So if indeed this is a motion to dismiss case, it's an even clearer win for the government.

[00:31:55] Speaker 06:
What standard did the... District Court apply. There were cross motions for summary judgment and to dismiss.

[00:32:06] Speaker 01:
As a practical matter, Your Honor, the district court, I think, applied a summary judgment standard. It considered that declaration I mentioned to Judge Garcia. Although the declaration was put in for, I think, irreparable harm grounds on the PI application that is not currently in front of the court, the district court considered it for summary judgment purposes. I don't believe that there was any objection to that below.

[00:32:28] Speaker 01:
If the court wants to proceed on that basis, I think the district court did, and we wouldn't have any objection to that, certainly.

[00:32:35] Speaker 06:
Briefly on the merits, Your Honor, unless the court... We have not taken a position on whether we should reach the merits.

[00:32:41] Speaker 01:
We have not, Your Honor. Understanding that... Why not?

[00:32:45] Speaker 06:
I mean, isn't it in everyone's interest, if we think they're standing, get this $12 billion infrastructure project of some importance to the people in the Southwest, why wouldn't we remove this cloud or reset the rules?

[00:33:04] Speaker 06:
sooner rather than later.

[00:33:05] Speaker 01:
Your Honor, on further reflection subsequent to filing the briefs in this case, we do think that it would be appropriate to reach the merits. We would urge the court to do so if indeed it does find standing.

[00:33:15] Speaker 01:
We, of course, recognize this court has discretion to decide the best use of its resources and that the factors supporting reaching the merits here, a clean legal issue, relatively light record, will be present in many cases. And we trust the court to access its discretion there. One thing we would emphasize, however, if the court does reach the merits and if the court does rule in Alston's favor, we would urge that the judgment not be to remand to the district court with instructions to vacate the waiver, but rather be to remand to the district court with instructions to hear from the parties further on remedy.

[00:33:49] Speaker 01:
As the court is well aware, whether to remand with or without vacator to the agency remains A great deal is going to turn first on the rationale this court applies if it does indeed find the waiver was unlawful. And second, a great deal will turn on the disruptive consequences of vacator, which given the amount of time that has passed since the briefing in the district court, I think it would be fair and reasonable for the parties in the district court to have an opportunity to submit evidence as to what the practical consequences of vacator would be and how the parties in the agency would proceed following that.

[00:34:24] Speaker 06:
Walker, anything else? Judge Garcia? Okay. Thank you. Thank you, Your Honor.

[00:34:34] Speaker 00:
May it please the Court. Alice Loughran for Brightline West. A plaintiff falls far short of satisfying the high standard that this Court has set for establishing Article III standing to sue the government based on the conduct of a third party. Congress left the selection of the vendor, of who the vendor will be, to private action. And Brightline West selected Siemens for reasons outside of the FRA's control, specifically, as Judge Walker indicated, Alstom just couldn't do the job.

[00:35:06] Speaker 00:
The only bidder that had satisfied the project's requirements was Siemens. They were the ones that offered service-proven train sets. Judge Walker? Sure.

[00:35:17] Speaker 03:
I don't want to go so far as to say Alston couldn't do the job. This is similar to the question I was asking them, but in reverse. I mean, I think with enough money and enough time, surely Alston could figure out how to build a train that goes this fast.

[00:35:36] Speaker 03:
But I think they needed to show in the record that, uh, how, how much that would cost and compare it to, um, how much it would cost Siemens to build the extra two trains in America. And then if, if one number is way bigger than the other number, then it's going to be awfully hard to think a rational company in your position would have canceled the contract with Siemens and gone with Austin.

[00:36:12] Speaker 00:
Correct, John.

[00:36:12] Speaker 03:
Can you put some details and some concrete information on that structure?

[00:36:18] Speaker 00:
Well, the problem with that structure is there's too much speculation on Alstom's side about what they would have to do. All we have in the record, and this is at J291, is that they would have to make substantial modifications to increase power capacity and traction to achieve the required speed and performance capacity for the project. So there's just too much speculation on their end. And they had never manufactured in their New York facilities any type of train sets that could meet this requirement.

[00:36:51] Speaker 00:
On the other hand, we had Siemens who had service proven. So it would just be more feasible in response to your question. It would be more economical to just work with Siemens, including on a delayed project that would build all of them. Because as Siemens has indicated, their facility is going to be built by the end of this year. Exactly.

[00:37:11] Speaker 03:
I agree with you with the implication of what you're saying, that I think it's their burden to show that the economics that there's a substantial likelihood that economics would cut in their way. And they haven't shown that. You're not giving me a lot to make me think it cuts in your way because you're not really telling me how much more it would cost. You think it would cost Siemens to build here and how much better a deal with Siemens is than a deal with Alston is.

[00:37:46] Speaker 03:
But I mean, I guess in your defense, I don't think that's your burden. But if you can give me more.

[00:37:50] Speaker 00:
Well, I mean, I think what we would say is we have the declaration in the record, and that's at JA 133, 132, 133.

[00:37:58] Speaker 00:
And they indicated by at least by November 2024, we had made it would be our CEO of the company said it would be a substantial disruption to sort of stop with senance and to try to think about different alternatives. And that's in the record.

[00:38:15] Speaker 03:
We also have, in terms of... I guess what it would be great to know, again, I think it was their burden, but what is the cost of that substantial disruption and how does that cost compare to the cost of Siemens just building the two trains here?

[00:38:31] Speaker 00:
Well, the difficulty, again, is that they've never satisfied the requirements, even to this day that we don't know that they've satisfied the requirements. At this point, it's too much water under the bridge. The company has been working with Siemens. They've invested millions of dollars, as well as a significant amount of time. So in any project of this size, you're going through engineering plans. And as indicated on JA-292, each one of these companies, while they offered, they offered um let me just they offer their own approaches um to the requirements for this project for full electrification so at this point we've been working with siemens and we've been building plants including train stops that are set and designed to work with semen trains so we've had significant amount of time public funds and effort that's been with the siemens project there is zero chance that Brightline West would change vendors at this point.

[00:39:34] Speaker 05:
You're not saying that's the case if Siemens was sort of definitively denied a waiver, right? You're not standing here and saying you would forego $3 billion to avoid working with Allstate?

[00:39:47] Speaker 00:
Well, I think what the relief that's requested by the plaintiff is that they were asked that the portion of the FRA decision that waives the two train sets broad be taken out. Absolutely.

[00:40:04] Speaker 05:
That's why we're asking all these questions about how much it would cost to be in the U.S. for those two or what Siemens would do. And maybe that was Alston's burden. But it sounds like you also...

[00:40:17] Speaker 05:
The technical question would be, what are the costs of whatever the alternatives. Pursuit proceeding with Siemens are compared to the costs of working with Austin. And it sounds like we don't really have evidence on any of those variables other than you certainly have strong incentives to figure something out with Siemens.

[00:40:36] Speaker 00:
Well, we do have strong incentives. We do have a declaration. We do have a declaration that indicates that there was, by that time, by the district court, and the district court indicated in her decision at that point, at least at the project, by the time of her decision, there was $140 million that had spent.

[00:40:53] Speaker 00:
And that is, again, invested in Siemens' idea, Siemens' concepts, for this particular project.

[00:41:01] Speaker 00:
And so if...

[00:41:03] Speaker 00:
Following up, if the vacature, if the FRA portion of the FRA's decision was vacated, as the FRA indicated, we would do everything we could to stay with Siemens, including sort of working with having all 10 train sets built in the United States, maybe going with eight train sets. There's all sorts of different possibilities, but we would work together. We would not go back to the awesome because too much money and time has been invested.

[00:41:35] Speaker 05:
Those possibilities all make sense to me in a sense, but there's no declaration in the record saying, again, maybe this wasn't your birth, but there's not a declaration saying that they wouldn't.

[00:41:47] Speaker 03:
even consider doing all 10 in the united states no no your honor there is not there was no definitive declaration on that and you you have represented that even if alston wins this case you're not hiring alston that's correct why why not put that into evidence well i mean i think if you look at the declaration that's in the record it's there what i'm just adding is a little bit more color and definitiveness where in the record does it say even if alston wins this case we, Brightline, are not hiring Alston.

[00:42:21] Speaker 00:
No, it does not say that explicitly.

[00:42:22] Speaker 03:
Why not put that in the record? One sentence, declaration. Sworn declaration.

[00:42:28] Speaker 00:
Well, Your Honor, I mean...

[00:42:31] Speaker 00:
Right now, we're working with the record that we have, and we don't have that in the record. But if you look at the declaration, which was filed in opposition to a preliminary injunction, that's basically what the declaration is saying, is they're saying we've invested all this money in Siemens. We've already been working. We're opposing a preliminary injunction of the waiver.

[00:42:51] Speaker 03:
And it's my burden. I don't think it's your burden to show they don't have standing. So I'm not saying this is dispositive, but it does cast some doubt on your representation that you're not going to hire Alston when it would have been really easy to just declare that as a piece of evidence in the record.

[00:43:09] Speaker 00:
Well, I mean, it's not in the record. That definitiveness is not in the record. But there are other things in the record, you know, that, you know, we've made substantial investments and all that.

[00:43:20] Speaker 00:
If there's no further questions.

[00:43:22] Speaker 05:
Just one last question. Awesome's main answer to these kinds of questions as well. Brightline pursued a waiver for us, so they must have seriously considered working with us. Why isn't that a persuasive point?

[00:43:36] Speaker 05:
Well, why bother if you just never thought Alstom could do the work?

[00:43:40] Speaker 00:
I think what had happened in terms of before Brightline had sort of looked at the project requirements and made a decision, they had already put in the waiver request for both of them. So in terms of the timeline, and then as you know, it's in the complaint, actually, that Brightline made a decision.

[00:43:59] Speaker 05:
So it was more of keeping your options open kind of thing.

[00:44:06] Speaker 00:
Well, I think of just the timeline. It's just that at the time that they put in the waiver request, they were considering and they were taking the proposals in. But once they sort of considered them and gone through it, they realized they just had not met the project requirements and that Siemens was the only option.

[00:44:24] Speaker 03:
I mean, you probably had a better negotiating position with Siemens if they thought Alston was in the picture.

[00:44:33] Speaker 00:
That would be one reason to keep Boston in the mix. Right. In terms of economic. If there's no further questions, we are at the court to affirm. Thank you.

[00:44:42] Speaker 02:
Mr. Prince. Thank you, Your Honors. Andrew Prince on behalf of Siemens. I'll just make a few points. I don't want to belabor it, but this is At least Alstom's arguments are proceeding on the false assumption that they are in the market for 186-mile-per-hour trains. But let's be clear, they don't have 186-mile-per-hour trains. At the time this waiver decision was issued, they hadn't even built their lower-speed, successfully built their lower-speed Amtrak trains.

[00:45:15] Speaker 02:
We cited page four of our brief, all of the OIG reports. Their windows were, like, literally exploding on those trains and were multiple years behind.

[00:45:25] Speaker 02:
The selection of us was not just a cost issue, Judge Walker. It was just like we actually had the trains. What was that detail? The windows were exploding? The windows were spontaneously exploding on their test trains. It's all detailed in the OIG reports.

[00:45:39] Speaker 06:
How fast did their trains go, remind me?

[00:45:43] Speaker 02:
I believe those ones max out at 160, which is like a totally different category. That's the Acela on the Northeast Corridor? It is the next generation Acela. They can't do it that fast. Yeah. Well, they don't.

[00:45:56] Speaker 02:
But, I mean, if you've been on those next generation Acelas, it's not what Brightline has in mind for this project. Part of that is the tracks.

[00:46:02] Speaker 03:
Not that this is this case, but...

[00:46:04] Speaker 02:
Yes, that's true. But my point is this wasn't just a cost competition. It was something we could do it now, Brightline's pretending they could do it, but in fact they needed to make substantial improvements to their trains to be able to even compete. And the reason why we had to build the first two overseas also wasn't necessarily related to cost. I mean, our factory is almost done here, and we are going to build the other eight trains here. It also had to do with the fact that because this is a first-generation project in the U.S., the U.S.

[00:46:35] Speaker 02:
doesn't have a commissioning and testing infrastructure really set up, but they have reciprocity agreements with, you know, like developed foreign governments that allow easier commissioning of the trains if they're certified overseas. So it was really like a project timing issue more than a cost issue.

[00:46:54] Speaker 02:
But, of course— There's another point I wanted to mention, which is Alstom has absolutely zero evidence in the record below. They put in no standing declarations, even though there were summary judgment proceedings. They didn't even put in a declaration supporting irreparable harm. And so Judge Katz, as you asked, why don't we just go ahead and reach the merits? And I appreciate I'm going to try and have my cake and eat it too here. If you disagree with the district court's findings on standing, but you also agree that Alston loses on the merits, I think that's fine.

[00:47:25] Speaker 02:
But I think it would be very unusual for you to disagree on standing and reach the merits and effectively grant summary judgment to Alstom in a case where a lot of their standing theories, as we've been kind of teasing out here, require evidentiary support. And there is none supporting the summary judgment standard.

[00:47:43] Speaker 06:
Well, if we reached the merits, we would only do so if we thought that they could be resolved on summary judgment without getting into factual disputes, of course.

[00:48:01] Speaker 02:
Of course. But you would think if they're pressing a lost profits theory, I mean, they need a declaration at least establishing that there would be some lost profits. And they have none, right?

[00:48:15] Speaker 02:
On the merits themselves, the court doesn't seem that interested in them. That's what I primarily briefed. I'll just make a few points. They're fundamentally just misrepresenting the FRA's decision. The FRA, talking about these technology distinctions, that was in response to a comment by a commenter. The FRA's finding was very clearly there are no current domestic manufacturers of 186 mile per hour high speed trains. The waiver provision is clearly using the phrase in a verbal present sense.

[00:48:47] Speaker 02:
It's asking a here and now inquiry about whether there is current domestic production and there is none.

[00:48:53] Speaker 05:
There are only... I'm sorry to interrupt, but... You said a few questions about standing still. Sure. One good answer to all of these questions might be that it's their burden. But it struck me that Siemens, a lot of what we've been talking about is speculation about what Siemens would do if this waiver were vacated. And are you authorized to make any representations about that?

[00:49:21] Speaker 05:
the Siemens willingness and ability to make the first two trains in the United States or anything bearing on the standing issue?

[00:49:30] Speaker 02:
Sure. Well, so first of all, those two trains are well under construction already in Germany. So it would depend on the basis on which you vacated the waiver. If it was at you know, they didn't explain it clear enough and there was a possibility of making, of re-granting the waiver. Remember, the agency could just re-grant the waiver on public interest grounds.

[00:49:47] Speaker 05:
So this case- You have to assume for standing purposes that we rule for them on the statutory ground.

[00:49:51] Speaker 02:
And the conclusion is there's no possible way they could grant a non-availability waiver. They could still grant a public interest waiver. So I'll just qualify that.

[00:50:01] Speaker 02:
We have almost completed our factory here and we would work with Brightline West to figure out how to build the trains here. I mean, that's what we would do. I mean, otherwise we have a wasted factory. We've just spent millions of dollars building this factory.

[00:50:15] Speaker 02:
If the court has no further questions for me, I appreciate the court's time.

[00:50:27] Speaker 06:
Mr. Levy, we'll give you two minutes.

[00:50:29] Speaker 04:
Thank you, Your Honor. I think a few points I just wanted to raise. A lot of the questions have focused on whether Brightline would go with us if they were a vacator and a remand. Of course, we don't have to show that. But I think the evidence is clear that the arguments they're making are not supported in the record that was before the district court.

[00:50:50] Speaker 06:
There's a pretty strong sense from all of us that we don't have...

[00:50:57] Speaker 06:
much, we have very little certainty what would happen one way or the other. Doesn't that Why doesn't that imply that you lose because it was your burden to show addressability, substantial likelihood, whatever the standard is? It's your burden to make that showing.

[00:51:19] Speaker 04:
Well, I think number one is we don't have to show that we would get the contract in the but formal, right? The competitive arm... I get that. Right. So that's enough. And we don't have to make that further showing.

[00:51:30] Speaker 04:
If the court determined that we did have to show a likelihood or some likelihood that we would get the contract... I think all the record evidence shows that we would. A lot of the comments that were made by my friends have focused on Alstom's ability to build these train sets. And I just want to go through what they've cited in the record. So they cited, first of all, the declaration, JA-129, It's notable that it doesn't go into any of the issues that are being raised today. I realize it was raised in a different context, but the district court relied on it, and it really doesn't get into any of these issues.

[00:52:05] Speaker 05:
They cited JA2-9- Did you have an opportunity to put in a declaration or develop evidence on all of the standing questions we're asking today?

[00:52:12] Speaker 04:
We could have put in a declaration there. There was no discovery in this case. There was a submission of the administrative record, but we proceeded by way of summary judgment, and they cross-moved-

[00:52:24] Speaker 03:
dismiss page 12 of the district court's opinion it says i'm at ja 249 alston has not offered any evidence that it could in fact meet bright lines requirements for the project right i don't think that's true um and i can cite and it's in the documents that they cited and it comes from um

[00:52:48] Speaker 04:
So J290 and 291, which my friend cited, that's Brightline's request for funding. And it was done before the waiver. It was done before the FRA proposed a way for both Alstom and Siemens. J290 introduces both service proven European HSR technology. And that's at 10.3, the introduction. And it then goes on to speak about rolling stock.

[00:53:13] Speaker 03:
Are you saying, first of all, just before you sit, are you talking about stuff that's in the sealed record or are you talking about stuff that's in the public record?

[00:53:18] Speaker 04:
I think this is in the sealed record, Your Honor.

[00:53:21] Speaker 03:
We're not, we're in a public setting.

[00:53:25] Speaker 04:
Okay, I will not. So if the court looks to the heading, I think the parties have quoted the word service proven. It's clear what is being referenced to. And then on 291, the court could look at it, and it's referring to which are service proven. My friend cited from this passage, 291, and quoted from it, or purported to. She said there was a reference to a substantial evolution being needed.

[00:53:58] Speaker 04:
That evolution is a reference to the next gen Acela, which is in production now, which has happened not to the evolution that would be further required. And then in the middle of the page, there's a reference to what Alston would need to do. And this is, again, recited in the FRA's document, which is just to evolve to use the TGV technology, which did achieve 186 miles per hour. So the fact is, we could do it.

[00:54:27] Speaker 04:
And that is adequate evidence, the fact that the Brightline sought a waiver.

[00:54:34] Speaker 03:
So whether I'm persuaded by that or not, I think you have made a pretty good case that we should be assessing this under the summary judgment standard.

[00:54:42] Speaker 04:
I believe so, Your Honor, but based on the evidence, I don't think it's a close question in our direction. I would also point to J326, which is in the sealed record, which I think is consistent with what counsel from Siemens is saying, which is that this was about safety and not about money in terms of the waiver. I don't want to float it into the evidence just because it's sealed into the, I'm sorry, into the courtroom because it's sealed, but J326, the first full paragraph says, And then when Brightline decided to select Siemens as its preferred vendor, this is JA73.

[00:55:22] Speaker 04:
This part is public. It didn't say that Alston couldn't do the trains, even though that would have been pretty probative in the context of seeking a waiver. It just said that Brightline had announced its selection of Siemens Mobility Inc. as its preferred bidder for the supply of rolling stock for the project. That's it.

[00:55:41] Speaker 04:
And it would be one thing if Siemens had said either there or in its declaration that was submitted to the court that Alston couldn't do these trains. It never did that. And the FRA didn't proceed on that assumption. It said it would have granted a waiver for Alston, too. And it could only do that if it thought that we could build the trains domestically.

[00:56:05] Speaker 03:
Siemens says it's already built a factory here. Do you have a response on that?

[00:56:09] Speaker 04:
Well, it wasn't part of the record in terms of summary judgment. I saw there's a reference to a news article that the factory is under construction. We also have a representation of council that they needed to build them in Europe for purposes of safety and that they've started building the trains in Europe. So if they build the trains in Europe, I suppose they could forego that. But this is inference upon inference about what they would do. And I realize it's our burden, but we've done more than enough to satisfy the burden

[00:56:39] Speaker 06:
Anything else? Anything else? Okay.

[00:56:41] Speaker 04:
Thank you. Thank you, Your Honor.

[00:56:43] Speaker 06:
The case is submitted.