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case number 25-1591.

[00:00:02] Speaker 12:
National Treasury and Pre-Use Union Ed Al vs. Russell T. Bott in his official capacity as Acting Director of the Consumer Financial Protection Bureau and Consumer Financial Protection Bureau of Balance.

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Mr. MacArthur for the balance, Ms.

[00:00:19] Speaker 12:
Bennett for the appellees.

[00:00:21] Speaker 01:
Good morning, counsel.

[00:00:22] Speaker 01:
Mr. MacArthur, please proceed when you're ready.

[00:00:24] Speaker 01:
And just for the benefit of everyone here, the attention to the judges who you see before you, Judge Henderson is also joining us by audio.

[00:00:33] Speaker 04:
Thank you, Chief Judge Stringy Lawson, and may it please the court, Eric MacArthur for the federal defendants.

[00:00:38] Speaker 04:
I would like to reserve five minutes for rebuttal, if I may.

[00:00:42] Speaker 04:
I'd like to begin with two points on which I hope we can all agree.

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The first is that as we have said all along, the executive branch lacks the authority to close the CFPB and has an obligation to ensure that it performs its statutory duties.

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Second is that our system of government cannot function the way it is supposed to if courts overstep their own authority and prevent the executive branch from carrying out lawful reforms for which the American people voted.

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We are now more than a year

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into a new presidential administration.

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And still the injunction entered by the district court in this case last March prevents the bureau's new leadership from carrying out exercising their lawful discretion to carry out the president's deregulatory agenda by downsizing the CFPB.

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That injunction rests on a series of legal, factual, and equitable errors, and it represents a serious affront

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to the separation of powers.

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It should be vacated.

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Now, there are a number of threshold issues in this case.

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The place that I would like to start is with the issue of channeling.

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I want to start there both because I think that issue is relatively straightforward legally and also dispositive of the most problematic part of this preliminary injunction.

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That's provision three, which prevents the Bureau from conducting a reduction in force.

[00:02:17] Speaker 04:
I say it's dispositive, because I think if we're right about channeling, that provision of the preliminary injunction has to go, even if we're wrong about everything else.

[00:02:27] Speaker 08:
This is not critical for liability, but it tees up your scope of relief argument.

[00:02:34] Speaker 04:
I think it goes to both liability and scope of relief.

[00:02:37] Speaker 08:
Well, you have other plaintiffs who we think have standing.

[00:02:41] Speaker 04:
Right.

[00:02:41] Speaker 04:
But standing doesn't address the separate jurisdictional barrier of channel.

[00:02:46] Speaker 08:
No, I understand.

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Channeling only knocks out the employment-related plaintiffs.

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Then you have a different set of plaintiffs who are consumers of agency services.

[00:02:58] Speaker 04:
I think Judge Katz has that channeling knocks out the employment-related claims of any of the plaintiffs, not just the employee associations.

[00:03:08] Speaker 04:
It knocks out any claims related to our prayers.

[00:03:10] Speaker 08:
Fair enough, but we're still going to be having the same debate over

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whether this shutdown decision can be inferred from everything else or challenged on constitutional grounds?

[00:03:24] Speaker 04:
That is correct.

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This wouldn't be dispositive of the entire case.

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And we still would have to confront all of those other issues to determine whether, as we say, the injunction should be vacated entirely.

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But I do think the channeling issue, if we're right about that at a minimum, means that the RIF prohibition, which frankly is the issue I'm concerned about the most, has to go.

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You say that the RIF claims, any RIF claims have to be channeled to the CSRA, but as I read the CSRA, it specifically excludes RIFs from its jurisdictional scheme, and I'm looking at 5 USC 7512B.

[00:04:07] Speaker 03:
In the cases talking about CSRA,

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exclusivity, talk about it in terms of remedies for aggrieved employees.

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And as you know, a RIF isn't really just getting rid of an employee, it's actually sizing a position from the agency.

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And I actually think OPM has a pending rule that would remove RIFs entirely from MSPB jurisdiction.

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So it seems odd to lead with a channeling claim where

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It's a little unclear, at least to me, whether that claim.

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So I take your question, Judge Pillard, to go to the question of whether, in general, challenges to a RIF have to be channeled to MSPB pursuant to the CSRA scheme.

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So the first thing I know about that is the plaintiffs haven't made that argument.

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They haven't said in general rifts aren't channeled.

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Their arguments are focused on risks done for this particular reason as part of an agency shutdown.

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So I don't think the court needs to resolve that question here.

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But the fact of the matter is today, not withstanding the proposed OPM rule today, there is by regulation MSPB jurisdiction to consider a riff.

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And I take

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The lesson of Elgin, the Supreme Court's decision in Elgin to be that where the MSPB has jurisdiction, with one exception in the statute, that's for discrimination claims that can be brought, for example, under Title VII.

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With one exception, where the MSPB has jurisdiction, that jurisdiction is exclusive.

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And so I do think that channeling is dispositive of that.

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Even if you think there was a final agency action that was a shutdown decision, I think the MSPB still has exclusive jurisdiction that precludes a court exercising authority under the APA or under an equitable constitutional claim from reinstating employees who have been terminated or enjoining the future termination of employees.

[00:06:05] Speaker 09:
Why is that if the claim is that

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There's a factual finding that the administration was going to close down this agency.

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And why wouldn't a preliminary injunction preventing rifts address that even aside from individual claims of employees?

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So I take this to be- The risk was for 90% of the, am I correct?

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There was a plan to riff 90% of the employees.

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So that was responsive to the claim that the agency was going to be shut down.

[00:06:33] Speaker 04:
There was at one point a plan to rip somewhere between 80 and 90% of the employees.

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But I take this to be the point of the controlling opinion for the Supreme Court in the NIH case that Justice Barrett authored, which is even if you have an APA claim challenging final agency action, you have a channeling regime.

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In that case, it was the Tucker Act regime that channeled

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contract claims to the Court of Federal Claims.

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Here it's the CSRA that channels employment claims to the MSPB.

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If you have one of those channeling schemes, you can't, as an APA remedy, get the sort of relief that relies within the exclusive jurisdiction of the body to which Congress has channeled the claim.

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And so here, the MSPB has exclusive jurisdiction over the reinstatement of employees.

[00:07:21] Speaker 04:
So are you saying that district courts can't

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enjoying the firing of employees ever because that's only belief that you can get from the Court of Federal Claims.

[00:07:29] Speaker 04:
I think that is correct with the one exception that the court mentioned in Elgin and drew an inference from that.

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The court said in Elgin, Congress was careful and it knew how to carve out an exception and give federal courts, preserve federal court jurisdiction over

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claims that go to the removal of employees.

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It did that in one instance.

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And the inference the court drew from that is everywhere else, MSPB jurisdiction is exclusive.

[00:07:54] Speaker 09:
So how would this work if the district court found that in fact the administration was dismantling an agency and one of the things it was doing was riffing 90% of the workforce, the district court couldn't address and enjoying the riff?

[00:08:10] Speaker 04:
That is my view, Judge Pan, that is simply outside the jurisdiction of the district court.

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And it doesn't mean there's no remedy.

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There is a remedy.

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The plaintiffs can go to the MSPB, and the MSPB, for example, has mechanisms whereby it can, on motion of the special counsel, it can get preliminary relief, as you may remember, in the Harris versus Besant case.

[00:08:32] Speaker 09:
I can't really tie the district court's hands in the face of a finding that the agency is being shut down by riffing.

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for my hypothetical 90%, let's say it's 100% of the workforce, you'd say that district court would be powerless to remedy that.

[00:08:47] Speaker 04:
I do think that is outside of the district court's jurisdiction.

[00:08:51] Speaker 11:
Mr. MacArthur, is your argument in part related to which plaintiffs have standing?

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So on your view, only the employees could get an injunction about the rifts?

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which suggests that the claims that, for instance, the panel, you know, the parties with standing that were found by the panel, the NAACP and Mr. Stieg, they could not get an injunction with regard to the rifts.

[00:09:20] Speaker 11:
That seems to be an unstated premise of your argument.

[00:09:25] Speaker 04:
That is my view.

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I hadn't viewed it, Judge Rao, as a standing issue.

[00:09:28] Speaker 04:
I view it as part and parcel of CSRA preclusion.

[00:09:31] Speaker 11:
Well, it's CSRA preclusion, but if

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the plaintiffs that have standing, for instance, assertive claims that implicated the rifts, then perhaps to Judge Pan's question, maybe the district court would have some authority over that.

[00:09:48] Speaker 11:
I mean, does your claim turn on who was able to bring these types of claims?

[00:09:53] Speaker 11:
I mean, on your view, like the employees are channeled out by the CSRA.

[00:09:58] Speaker 11:
I take that point.

[00:10:01] Speaker 11:
But what about the remaining plaintiffs?

[00:10:02] Speaker 11:
I think you also then have to have some argument about why whatever plaintiffs have standing can't get the riff injunction.

[00:10:10] Speaker 04:
I think this comes back to my answer to Judge Katz's question earlier.

[00:10:13] Speaker 04:
My view about CSRA preclusion is it's not a party specific inquiry.

[00:10:18] Speaker 04:
It's a claim specific inquiry.

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And so any party, whether an employee or an association representing employees or an entity that is a consumer of government services,

[00:10:29] Speaker 04:
that is asserting a challenge to an employment action, that claim has to be channeled through the scheme that Congress set up in the CSRA.

[00:10:37] Speaker 04:
And that means if that scheme doesn't offer a particular party a remedy in that scheme, it means they're out of luck, which is what this court has said repeatedly, that what you get under the CSRA is what you get.

[00:10:50] Speaker 04:
And that's, for example, what the Supreme Court held in fast.

[00:10:52] Speaker 11:
We haven't said that.

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The rest is being challenged by not an employee, but by a party that is otherwise harmed by the shutdown.

[00:10:59] Speaker 11:
So if a party is challenging the shutdown, but who is not an employee, but they're suggesting that having, you know, large scale risks is affecting their rights.

[00:11:11] Speaker 11:
So that's a case like- That's not about channeling that.

[00:11:14] Speaker 04:
I still think that is about channeling.

[00:11:16] Speaker 04:
That's cases like the Supreme court's decision in block versus community nutrition Institute, where the courts draw an inference that if Congress sets up a comprehensive

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integrated scheme for review of particular type of action.

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And it provides certain people remedies in that scheme and other parties get no remedy.

[00:11:38] Speaker 04:
The inference is the parties that got no remedy in that scheme, it's not that they get to go to federal district court, it means that they have no remedy.

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Otherwise we would have to assume that Congress set up a scheme where if there's, for example, a RIF,

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That means that consumers of government services who say this riff is going to cause injury to me by disabling the agency or downgrading the quality of the services that I consume.

[00:12:01] Speaker 04:
That would mean that parties throughout the country and federal district courts across the country could bring challenges to the same employment action and get conflicting decisions.

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And that is precisely what Congress was trying to avoid when it set up the exclusive CSRA review scheme for employment actions and said those claims have to go

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to the MSPB and from there to the federal circuit.

[00:12:23] Speaker 03:
I take it that you're sort of jumping ahead of the question of the cause of action.

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But if we were to affirm the district court's finding that there was a decision made to shut down the agency and it was on a rush basis being

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executed and as the panel found, if the full court were to agree that there are people who sought services and were expecting services from the Bureau that were harmed, as I take even the cases that you cited, if the violation is organization wide or system wide, then it's appropriate to have

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organization-wide relief.

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And for people deprived of services, that would be to set aside the shutdown decision.

[00:13:21] Speaker 03:
And I guess I'm trying to understand what your response to that is.

[00:13:27] Speaker 03:
It's not that the people seeking services, the plaintiffs who the panel agreed had standing, are challenging the riff.

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They're challenging the shutdown, which has a bunch of different steps that

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were involved in implementing it, but the decision that they're challenging is the shutdown.

[00:13:47] Speaker 03:
And I just like to, it feels like you jumped over that and got into talking about it.

[00:13:53] Speaker 04:
I jumped over it because CSRA preclusion is jurisdiction.

[00:13:56] Speaker 04:
And my point about CSRA preclusion is even if you assume all that, even if you assume there was a final shutdown decision that is a reviewable final agency action under the APA, of course we dispute all that.

[00:14:07] Speaker 04:
But even if you assume all that,

[00:14:09] Speaker 04:
and assume the court can vacate the shutdown decision, it does not follow that the court has the equitable authority to enter an injunction reinstating employees or prohibiting their termination.

[00:14:21] Speaker 04:
That is exactly what happened in NIH.

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Their agency had issued guidance that said, here's the guidance that's going to govern termination of DEI grants.

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And then the agency went forward and terminated a bunch of DEI grants.

[00:14:35] Speaker 04:
And when that went up on our stay motion to the Supreme Court, Justice Barrett, in her controlling opinion for the court said the APA challenge to the guidance can be heard by the federal district court.

[00:14:48] Speaker 04:
But even if you can review that final agency action and set it aside, there is no jurisdiction in the district court to reinstate the grants.

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because jurisdiction over grant terminations has been channeled to a separate body.

[00:15:02] Speaker 04:
So I think that same logic applies equally here.

[00:15:04] Speaker 03:
So you're just saying, okay, even if, and I take it you're not conceding, but you're just structuring the way you're thinking about it.

[00:15:10] Speaker 03:
You're saying, even assuming that the plaintiffs that we found had standing are in terms of some relief, it would have to be carved out of that relief that the plaintiffs

[00:15:22] Speaker 03:
agency, part of shutting down the agency is that it will be bereft of employees.

[00:15:25] Speaker 04:
That's correct.

[00:15:26] Speaker 04:
Any remedy that goes to the removal of employees would have to be carved out of any injunctive relief in the case.

[00:15:32] Speaker 08:
To me, that sounds more like an argument about remedial discretion on the back end than about channeling on the front end.

[00:15:45] Speaker 08:
But is there any practical difference or is that just kind of a longer egghead quibble that

[00:15:52] Speaker 04:
I will say I don't find justice Barrett's opinion precisely polluted on that point whether it's a claim a remedy related point that she was making but what she says is you can't a federal court exercising a PA jurisdiction can't end run the scheme.

[00:16:09] Speaker 04:
by granting injunctive relief that has the effect of reinstating terminated grants.

[00:16:15] Speaker 04:
And I think it's the same exact logic here.

[00:16:18] Speaker 04:
You can't end run the CSRA scheme through the APA by reinstating employees as an APA rent.

[00:16:26] Speaker 02:
To the extent you have third parties, so not employees, bringing claims that they're in need of services,

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from the government, they're legally entitled to, and let's assume for this question, statutorily mandated services.

[00:16:43] Speaker 02:
It can only be provided by human beings.

[00:16:50] Speaker 02:
And the court not make an order with respect to specific individuals, but order the government to ensure X, Y, and Z positions are staffed and any actions that would preclude

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keeping those positions, mandatory ones for this purpose, staffed.

[00:17:14] Speaker 04:
I don't think so, Judge Millett.

[00:17:15] Speaker 04:
I mean, that still sounds to me like you're exercising jurisdiction over the removal of employees.

[00:17:19] Speaker 02:
I think what- No, I'm just, it's the maintenance of a statutory mandated office.

[00:17:24] Speaker 02:
I don't- What's your best case, I guess, for reading it that broadly?

[00:17:27] Speaker 02:
This is nothing like Elgin.

[00:17:30] Speaker 04:
I think NIH, Justice Barrett's controlling opinion, NIH is the key opinion on this point.

[00:17:36] Speaker 02:
But I don't look at this.

[00:17:37] Speaker 02:
This is nothing remotely like that.

[00:17:39] Speaker 02:
The order I'm envisioning is nothing remotely like that.

[00:17:42] Speaker 02:
I mean, what you're what you want us to set hold is that the CSRA reaches as tentacles that reach across the entire litigation system that prevent courts from even ordering the government to comply with the Constitution by

[00:18:03] Speaker 02:
keeping functioning the offices that Congress has created and funded and that I just that may be your position and that's fine, I just want to make clear that is your position and to do you have any authority.

[00:18:19] Speaker 02:
that reads it that broadly and in the NIH decision by Justice Barrett, it doesn't remotely touch this.

[00:18:27] Speaker 02:
What are the other cases you've mentioned so far?

[00:18:29] Speaker 04:
I'm not certain how CSRA provision would work in that hypothetical, if I understand it correctly.

[00:18:33] Speaker 04:
Okay, I thought you said it would apply.

[00:18:35] Speaker 04:
Well, I just want to make sure I understand.

[00:18:37] Speaker 04:
What we're positing is an order that's not about the termination of any particular employee.

[00:18:42] Speaker 04:
Exactly.

[00:18:42] Speaker 04:
But simply an order that says- Keep an office staffed.

[00:18:44] Speaker 04:
Someone has to be there.

[00:18:47] Speaker 02:
Maybe you'll have AI in a few years.

[00:18:49] Speaker 02:
But for now, let's assume it has to be human beings.

[00:18:51] Speaker 04:
I'm not aware of any precedent on that issue.

[00:18:54] Speaker 04:
And it's not clear to me that would be a CSRA issue.

[00:18:56] Speaker 04:
But I don't know why a court would need to get to that level of saying you have to have a person staffing this as opposed to you have to provide the service.

[00:19:04] Speaker 04:
That's the typical remedy that you would get, for example, in a

[00:19:07] Speaker 02:
And an action under APA order that said, I mean, you're just, you can flip word games around here, but in order that says you must provide this service.

[00:19:16] Speaker 02:
And let's assume for these purposes that it has to be, there have to be humans there to provide it.

[00:19:21] Speaker 02:
It's not entirely computerized.

[00:19:23] Speaker 02:
So humans have to be there and those humans must work for the agency to do it then.

[00:19:32] Speaker 04:
Well, they don't necessarily have to work for the agency in an employment capacity.

[00:19:36] Speaker 04:
The agency could hire a contractor to do that service.

[00:19:39] Speaker 04:
That's getting into sort of the executive branch's discretion to figure out how to perform.

[00:19:44] Speaker 04:
Volunteers, obviously, that's a problem.

[00:19:46] Speaker 04:
Right, no volunteers.

[00:19:48] Speaker 04:
But that's trenching on the executive branch's discretion to determine how to perform the statutory duty.

[00:19:54] Speaker 04:
I think the court's role is at an end.

[00:19:56] Speaker 02:
If you have that contracting authority, but yes.

[00:20:00] Speaker 02:
But so your view is that the, so it's just a phraseology question that the court can order you to ensure that there are human beings there that work for the agency to provide these services as needed to remedy a third party claim.

[00:20:22] Speaker 04:
I suppose that's encompassed in the idea that the court can order you to provide a service that's statutorily required and that you have withheld, that there must be some way, whether it's a human being or AI, I don't know, some way to perform that service.

[00:20:36] Speaker 04:
I just don't know why a court would need to get into that level of granularity about how the service is performed and what matters to the plaintiff is do they get the service?

[00:20:46] Speaker 04:
And so the court can simply order the agency to provide the service that has been unlawfully withheld.

[00:20:54] Speaker 07:
And what's just to play this out, let's suppose that that's the order provide the service.

[00:21:02] Speaker 07:
And then the allegation is that the government is not providing the service because it fired all the people or ripped all the people who provided that service and hasn't rehired anyone or hired contractors or anything else.

[00:21:23] Speaker 07:
and the plaintiffs come back, are you saying that at that point the court still couldn't order the government to hire people or rehire people?

[00:21:37] Speaker 07:
You would just have to say again, you've got to provide the service because of channeling

[00:21:44] Speaker 04:
Yeah, I guess I haven't thought about how that would play out, Judge Wilkins, in the context of an order enforcing a court order to provide the service has been disregarded.

[00:21:52] Speaker 04:
I don't know whether that would be channeled through the CSRA.

[00:21:57] Speaker 07:
Why would it be any different?

[00:21:58] Speaker 07:
I mean, if you're saying that the court doesn't have jurisdiction in the first place because of channeling, how would the court suddenly have jurisdiction to order it?

[00:22:11] Speaker 04:
It may be that the court doesn't.

[00:22:14] Speaker 04:
It may be that that's channeled.

[00:22:15] Speaker 04:
I just don't want to take a firm position on that, not having thought through the question or seen any precedent on it.

[00:22:21] Speaker 04:
The NIH precedent is about APA jurisdiction, not about a court exercising jurisdiction to enforce.

[00:22:28] Speaker 01:
It's not clear to me why the answer wouldn't be the same that you gave to Judge Millett, which is that if you have contractors as a possibility, then even at enforcing a prior order,

[00:22:37] Speaker 01:
It can't be that you have to hire somebody.

[00:22:39] Speaker 01:
It could be that you have to supply the function through various means, including potentially hiring somebody.

[00:22:44] Speaker 01:
But it could be that you have to provide the function through contractor.

[00:22:48] Speaker 04:
I mean, that makes sense to me.

[00:22:49] Speaker 04:
And I suppose you can imagine a recalcitrant agency that simply refuses to comply.

[00:22:54] Speaker 04:
At some point, that's the only possible remedy.

[00:22:56] Speaker 04:
And then you would be confronted with that question.

[00:22:58] Speaker 04:
But I think in the first.

[00:23:01] Speaker 02:
I'm sorry.

[00:23:02] Speaker 04:
Go ahead, Jesper.

[00:23:03] Speaker 02:
The contracting process is going to take too long.

[00:23:07] Speaker 02:
And sometimes government contracting can.

[00:23:12] Speaker 02:
What's the report in the interim?

[00:23:14] Speaker 02:
Say, get somebody in the seats.

[00:23:16] Speaker 02:
I don't, you have to get, this is a service that requires a human and human judgment.

[00:23:20] Speaker 02:
Get a human in the seat.

[00:23:22] Speaker 02:
And you go, well, we're planning to contract it.

[00:23:24] Speaker 02:
We're going to fit it out.

[00:23:25] Speaker 02:
It's going to take us three months.

[00:23:29] Speaker 02:
What then?

[00:23:30] Speaker 02:
Can the court say, oh, so I guess we just have to wait three months or can it say, get people in the seat now?

[00:23:35] Speaker 02:
And that, which effectively means the only option is employees.

[00:23:39] Speaker 02:
Perhaps in that sort of circumstance.

[00:23:41] Speaker 02:
Perhaps doesn't, I mean, you've got a whole channeling argument here.

[00:23:43] Speaker 02:
Is that within the jurisdiction or not?

[00:23:46] Speaker 04:
Are we in enforcement or the court order context or the APA jurisdiction?

[00:23:48] Speaker 02:
I don't know why it wouldn't matter.

[00:23:50] Speaker 02:
Well, I- And you can give two different answers.

[00:23:52] Speaker 02:
That's fine.

[00:23:53] Speaker 04:
For the APA context, I am sticking with my answer that that is outside of the court's jurisdiction under the APA under using a justice appearance in NIH.

[00:24:01] Speaker 02:
Well, then there'll never be any enforcement because they'd say the injunction couldn't require that anyhow.

[00:24:06] Speaker 02:
With the injunction written, provide this service and provide this service within a week or within three days for 24 hours.

[00:24:15] Speaker 02:
I mean, because it's statutorily mandated.

[00:24:18] Speaker 02:
You should never come taking steps that stop the service in the first place.

[00:24:22] Speaker 04:
Typically, in 7061 cases, courts give the executive branch quite a bit of leeway to figure out how to provide.

[00:24:30] Speaker 02:
Well, we're not going to understand sometimes when they're not going to get such leeway.

[00:24:33] Speaker 02:
Right.

[00:24:33] Speaker 02:
On this record, it might be the one.

[00:24:35] Speaker 02:
I'm just asking you, could that?

[00:24:37] Speaker 02:
Let's assume the government has used up all its credibility, burned its bridges.

[00:24:44] Speaker 02:
And so the court says, get this service reinstated.

[00:24:48] Speaker 02:
You got 48 hours.

[00:24:51] Speaker 02:
I'm tired of the back and forth.

[00:24:53] Speaker 02:
Get it reinstated.

[00:24:56] Speaker 02:
Do it.

[00:24:57] Speaker 02:
If everyone knows it, that means you've got to employ somebody or recall somebody because you can't go through a bidding process on that schedule.

[00:25:07] Speaker 02:
within the jurisdiction?

[00:25:09] Speaker 04:
That strikes me as fine.

[00:25:10] Speaker 04:
If the court's saying, you know, here's the deadline, I'm giving the agency to comply with a statutory duty and the agency is left with figuring out how to comply with that, even if it means they have to rehire employees, I don't think that would be a CSO issue.

[00:25:23] Speaker 02:
You flip it around the other way and the plaintiff comes in and says, the government just gave notice that it's shutting down this office completely

[00:25:37] Speaker 02:
even though it's statutorily mandated, I'm using that service, I need that service, and I need it soon, like I need it within the next 24 or 48 hours, or I will be into the health issue or something like that.

[00:25:53] Speaker 02:
And so the district court says, the government doesn't have a plan, don't have contractors in the waiting room, and so it says, you must,

[00:26:05] Speaker 02:
keep this service turned on and you may not take steps that result in that service being turned off going forward.

[00:26:18] Speaker 04:
I mean, that hypothetical, I think the court would have authority to order the agency to provide the service to that plaintiff.

[00:26:25] Speaker 04:
I don't think the court, even there, would have the authority to go beyond remedying the discrete injury of the plaintiff before the court.

[00:26:32] Speaker 02:
And that's one of- And for the process, then, sorry, just to clarify these things.

[00:26:35] Speaker 02:
I don't know when I crossed your line.

[00:26:38] Speaker 02:
Provide this service, and you're enjoined from taking this plan that you announced, which say will soon include fires 100% of the people in that office, because that would preclude you from providing this service

[00:26:54] Speaker 02:
on this timeline.

[00:26:55] Speaker 04:
I don't think you could enter an injunction that goes to the entire plan.

[00:26:59] Speaker 04:
I think the injunction has to be- I don't want to get into that.

[00:27:01] Speaker 02:
I want to say that I was trying to make clear here, you have an announced plan that says we're stopping this service, this office, and all this office does is this service.

[00:27:10] Speaker 02:
That's the only reason I'm talking about the plan.

[00:27:12] Speaker 02:
So you may not take, we're going to fire everybody, 100% of employees, shutter the place.

[00:27:20] Speaker 02:
And I assume you said it would be okay to say, no, you won't.

[00:27:24] Speaker 02:
You won't shutter the place.

[00:27:26] Speaker 02:
You won't stop providing the service.

[00:27:29] Speaker 02:
And because you can't provide that service without humans, you will not terminate whatever number of those humans are required to provide that mandatory service.

[00:27:43] Speaker 04:
Until you come up with another plan.

[00:27:45] Speaker 04:
I don't think a proper injunction could say all of those things.

[00:27:48] Speaker 04:
I think it could say you must provide the service.

[00:27:51] Speaker 04:
to this particular plaintiff who has come in and showed that they will have irreparable harm if they do not receive this service that has been unlawfully withheld.

[00:27:59] Speaker 04:
I think going any broader than that and saying I'm going to enter an injunction that reaches this entire plan or provides relief to other parties before the court is inconsistent with the remedial principles the Supreme Court just reinforced in CASA, which says that the equitable authority.

[00:28:18] Speaker 02:
It's completely tied to this individual plaintiff in my hypothetical.

[00:28:20] Speaker 02:
We don't have any CASA issue here.

[00:28:22] Speaker 02:
I need it, and I'm going to need it on Friday.

[00:28:24] Speaker 02:
And you said you're shutting it down.

[00:28:27] Speaker 02:
You got no time to get contractors in there.

[00:28:29] Speaker 02:
have people in the chair able to give me that service to give this client this plaintiff that service on Friday.

[00:28:37] Speaker 04:
I agree.

[00:28:37] Speaker 04:
There's not a cost issue.

[00:28:38] Speaker 04:
Is that okay?

[00:28:39] Speaker 04:
They're ordering the agency to provide that service, but going beyond that, I do think presents a cost issue.

[00:28:45] Speaker 04:
And I do think there are serious going beyond that.

[00:28:46] Speaker 02:
How I'm not sure.

[00:28:48] Speaker 02:
I just, I may have misunderstood.

[00:28:50] Speaker 02:
I may have misspoken or I might not be thinking about this.

[00:28:52] Speaker 02:
Right.

[00:28:52] Speaker 02:
So what about what, when would it cross the line from making sure there's people, the necessary people there to provide this service on this day when what more

[00:29:04] Speaker 04:
If a court is entering relief that goes beyond what's necessary to provide complete relief to the party before the court who has demonstrated irreparable harm, I think that is possible.

[00:29:15] Speaker 02:
If the only way to do that would be, you wouldn't allow the words to say, and so have employees in there.

[00:29:23] Speaker 02:
But if the only possible way to comply with the court's order is to have employees there, then it's okay, as long as it's phrased.

[00:29:32] Speaker 04:
if it's directed at the injury of that particular plaintiff.

[00:29:35] Speaker 04:
That's definitely my hypothetical.

[00:29:37] Speaker 04:
There's this broad shutdown plan.

[00:29:39] Speaker 02:
That's not my hypothetical.

[00:29:40] Speaker 02:
I'm trying to keep things focused very much here on if it's phrased the way I think you want it phrased, make sure you can provide that service to this plaintiff who needs that service, Brokawsa out for now.

[00:29:56] Speaker 02:
And you can provide that service on Friday.

[00:29:59] Speaker 02:
This is Monday.

[00:30:01] Speaker 02:
You'll be able to provide that service on Monday and you'll have the staff there to provide that service to this plaintiff.

[00:30:10] Speaker 02:
That would be an okay order.

[00:30:12] Speaker 04:
That seems fine to me.

[00:30:13] Speaker 03:
So I just want to back up because it seems like this whole line of questioning has been on the premise that the plaintiff's challenge, which is that the claim has to proceed under 7061.

[00:30:26] Speaker 03:
So, and I understand that to be your argument.

[00:30:31] Speaker 03:
But if the claim here is a challenge to the agency, the Bureau's action shutting down, then it's not a section 7061 claim, it's a 7062 claim.

[00:30:48] Speaker 03:
And it's like if the Bureau published a notice in the Federal Register and said effective immediately, we are shutting down, employees are instructed to take all action necessary to shut down, it's, you know,

[00:31:01] Speaker 03:
Biden versus Texas, the remain in Mexico, halting of prior policy.

[00:31:08] Speaker 03:
I know you don't agree that that would be final agency action under 7062, but assume we disagree with you, that it is final agency action.

[00:31:19] Speaker 03:
Then the relief would have to be matching that violation.

[00:31:27] Speaker 03:
And it wouldn't be limited to, you know,

[00:31:30] Speaker 03:
assuring that you could provide the particular plaintiffs the relief that would respond to the injury and fact that they claim is for their sin.

[00:31:39] Speaker 03:
It would be to remedy the violation, which is the unlawful dismantling of the agency.

[00:31:48] Speaker 04:
So accepting the purposes of argument that there is a final agency shutdown decision that's reviewable under the APA.

[00:31:57] Speaker 04:
I think

[00:31:58] Speaker 04:
a court could vacate the shutdown decision, but you would still have a separate question about injunctive relief.

[00:32:06] Speaker 04:
And I still think even in that scenario, the injunctive relief has to be tailored both to fit the nature of the violation and to remedy the plaintiff's injuries.

[00:32:17] Speaker 04:
And the injunction here does neither of those things.

[00:32:19] Speaker 04:
Neither of those things, because the violation, the purported violation was shutting down the agency entirely

[00:32:26] Speaker 04:
This injunction goes well beyond in order to keep the Bureau open.

[00:32:30] Speaker 04:
So it doesn't fit the nature of the violation.

[00:32:32] Speaker 04:
And it also goes well beyond what's necessary to remedy the particular injuries of the plaintiffs in this case.

[00:32:41] Speaker 03:
So that's exactly what I'm curious about having you tell us more about.

[00:32:49] Speaker 03:
took you to be objecting in the district court and at the panel stage to a follow the law injunction.

[00:32:56] Speaker 03:
And the district court thought that that was not going to be effective in any event because there was so much disagreement about the character of what the agency was doing.

[00:33:04] Speaker 03:
The agency did and still contends that it was never shutting down.

[00:33:10] Speaker 03:
It was only downsizing.

[00:33:12] Speaker 03:
And I think the district court

[00:33:14] Speaker 03:
reasonably was exercising discretion and saying, well, I need to be more concrete then.

[00:33:18] Speaker 03:
I need to be more concrete to tell you what I mean by saying you need to not shut down the agency.

[00:33:26] Speaker 03:
So there was our panel stayed in part the district court's preliminary relief saying you can do firings and rifts and contract terminations if

[00:33:45] Speaker 03:
the Bureau can explain how this is consistent with fulfilling the agency's statutory duties.

[00:33:54] Speaker 03:
And it didn't go so well, but my inclination would be that that is still the right project to give the executive the authority that the district court acknowledged it has and that we definitely acknowledge that it has.

[00:34:09] Speaker 03:
So what should an order say if it's going to be anything more than

[00:34:15] Speaker 03:
a set aside and a general urging the Bureau to keep open.

[00:34:24] Speaker 03:
If there's gonna be something that has some meat on the bones, more concrete.

[00:34:29] Speaker 04:
So I think that is definitely not the right project.

[00:34:32] Speaker 04:
And the reason why I think it's wrong goes to one of the ways in which their lawsuit I think is fundamentally misconceived.

[00:34:41] Speaker 04:
And that's that they sometimes

[00:34:44] Speaker 04:
act as if they are the stewards of the agency, and that they are here to protect the public interest in preventing irreparable harm to the agency.

[00:34:53] Speaker 03:
OK, I know that that's offensive and that it feels like the federal court's superintending the conduct of the executive branch.

[00:35:03] Speaker 03:
But again, go with me for a moment.

[00:35:06] Speaker 03:
If we assume that if we were to affirm the district court's finding,

[00:35:12] Speaker 03:
that the executive did in fact intend to dismantle the agency.

[00:35:16] Speaker 03:
That changes the landscape, does it not?

[00:35:19] Speaker 03:
The burden is then more on the government.

[00:35:25] Speaker 03:
And we're not saying that generally courts are gonna always get in there, but where there's been pretty aggressive action against a congressionally mandated agency, doesn't that flip

[00:35:38] Speaker 03:
the burden and say, it's okay for the court to say, give me a non-arbitrary explanation of why you think having five guys in a phone is gonna allow you to fulfill the agency's mandate.

[00:35:54] Speaker 04:
So I don't think this is a burden issue.

[00:35:56] Speaker 04:
I think it's a CASA issue.

[00:35:58] Speaker 04:
Plaintiffs are here to vindicate their own private interests in preventing irreparable harm to themselves.

[00:36:05] Speaker 03:
But in CASA, each individual

[00:36:08] Speaker 03:
person has a birthright citizenship claim that's specific to them.

[00:36:13] Speaker 03:
Here, the individual plaintiffs have a claim that the action, so the footprint of the relief is really defined by the action that the district court found was unlawful.

[00:36:28] Speaker 03:
And that just puts us in a different position from CASA.

[00:36:32] Speaker 03:
And CASA recognizes that if there's, you know,

[00:36:35] Speaker 03:
exactly that the footprint of the violation is the template for the remedy.

[00:36:40] Speaker 04:
Maybe we just disagree about this Judge Pillard, but I understand, Stan Costa, to say it's not about the action, it's about the injury.

[00:36:48] Speaker 04:
It's about what is necessary to provide complete relief to the plaintiff that's before the court.

[00:36:53] Speaker 04:
So the way this should have gone is the district court should have said, here are

[00:36:59] Speaker 04:
The injuries that gave rise to standing identified which of those injuries by two particular plaintiffs was sufficiently grave and irreparable to warrant the strong medicine of a preliminary injunction and then entered an injunction that was tailored precisely to remedy that injury.

[00:37:16] Speaker 04:
So if the only plaintiff here who had standing was the NAACP

[00:37:21] Speaker 04:
because the Bureau stopped providing education materials to the NAACP and that injured the members, then the preliminary injunction should have been tailored to redress that specific injury.

[00:37:32] Speaker 04:
The court could have said, while we're litigating this case, you must continue providing those services to the NAACP.

[00:37:38] Speaker 03:
I don't think that that's supported by the cases that you cite in the sense that, yes, if it's a mandamus claim under section 706,

[00:37:47] Speaker 03:
One, but for example, if an agency has statutory obligations to file reports, and it doesn't file a report, and there's an organization that depends on those reports and can establish it, so we want the report.

[00:38:00] Speaker 03:
7061 claim.

[00:38:02] Speaker 03:
But if the agency promulgates a rule and says, we are never doing those reports again,

[00:38:08] Speaker 03:
That changes the nature of the action.

[00:38:10] Speaker 03:
And that same plaintiff doesn't have to go to court every single time and say, this report, I need it.

[00:38:15] Speaker 03:
This report under 7061, it can go to 7062 and say, you have to issue those reports, even if it only ever plan to use the next one.

[00:38:24] Speaker 03:
And the rest of it is for other people.

[00:38:26] Speaker 03:
So I guess I'm not seeing you providing support for the notion that even a 7062 systemic or

[00:38:37] Speaker 03:
larger footprint violation than when you come to remedy shrinks back down again.

[00:38:42] Speaker 04:
Yeah, I think we may just disagree because I would answer the hypothetical differently than you did Judge Pillard.

[00:38:47] Speaker 04:
I would say in that circumstance, there may be APA, there may be the APA remedy of setting aside the action that says we're no longer going to produce this report, set aside that action.

[00:38:56] Speaker 04:
There's still a separate question about

[00:38:59] Speaker 04:
what authority the court has to enjoin the agency to do things or to refrain from doing things.

[00:39:05] Speaker 04:
And now we're in a CASA inquiry where we're looking at the scope of the equitable power of the court and CASA says the ceiling, this is not the floor, but the ceiling is complete relief to the plaintiff.

[00:39:17] Speaker 04:
And so if the plaintiff in this hypothetical only uses one report,

[00:39:23] Speaker 04:
Any injunctive relief would have to be tailored to remedy that plaintiff's injury and say, produce the report that this plaintiff is injured.

[00:39:30] Speaker 02:
Can I clarify your answer here?

[00:39:31] Speaker 02:
I just want to make sure I understand this.

[00:39:33] Speaker 02:
So if the court sets aside, indicates an agency decision to stop producing reports, you're saying the court can also order the agency to actually affirmably produce the reports?

[00:39:50] Speaker 02:
It can only order, I mean,

[00:39:52] Speaker 02:
Is that right?

[00:39:54] Speaker 04:
No, I'm not saying the court couldn't enter any injunction.

[00:39:57] Speaker 04:
What I'm saying is any injunctive relief would have to be tailored to remedy the injury of the police.

[00:40:02] Speaker 02:
But we're not setting aside little bits of the agency action.

[00:40:07] Speaker 02:
We've set aside the entire agency decision not to produce the reports.

[00:40:13] Speaker 04:
Well, I mean, that does get into questions about what they could, I mean, CASA sets

[00:40:18] Speaker 04:
vacant or aside as an API remedy and says we'll leave that for today, whether it's not address even assuming they could or is sort of an indivisible remedy and you're setting.

[00:40:28] Speaker 02:
Just from understands when its agency is that its action is vacated is unlawful.

[00:40:35] Speaker 02:
Its decision to not do something negative here is vacated is unlawful, which means it.

[00:40:41] Speaker 02:
the law still requires you to do something.

[00:40:44] Speaker 02:
Does the agency not view that vacature by itself as its obligation to produce all the statutorily required reports?

[00:40:53] Speaker 04:
I think it would have a statutory obligation to produce those reports.

[00:40:57] Speaker 04:
For whoever asks?

[00:41:00] Speaker 04:
Yes, the executive has that statutory obligation.

[00:41:03] Speaker 04:
That is a separate question.

[00:41:04] Speaker 02:
But if I'm understanding your answer right, and if I'm wrong, your view is

[00:41:11] Speaker 02:
But ain't nobody can make you do it.

[00:41:15] Speaker 02:
We have to have 3 million people each file their own lawsuits for their reports to get it done.

[00:41:22] Speaker 02:
Is that your view?

[00:41:22] Speaker 02:
No court can order you to do it.

[00:41:26] Speaker 02:
unless they happen to have three million plaintiffs in front of them.

[00:41:29] Speaker 04:
If a court does not have a plaintiff before it who's injured by the failure to produce a specific report.

[00:41:35] Speaker 02:
That's a nice way of saying, I think the answer to my question is yes.

[00:41:38] Speaker 02:
No one can make you do it.

[00:41:40] Speaker 02:
We've set aside, we've said it's unlawful.

[00:41:45] Speaker 02:
So what?

[00:41:46] Speaker 02:
You can't make us do it.

[00:41:47] Speaker 02:
That is the core lesson of CASA.

[00:41:50] Speaker 02:
So I'm just going back.

[00:41:52] Speaker 02:
I mean, it might be why it doesn't apply to APA cases.

[00:41:56] Speaker 04:
It applies to injunctive relief in APA cases.

[00:42:00] Speaker 04:
It applies to injunctive relief anywhere.

[00:42:01] Speaker 04:
And what the court said there is, yes, the executive always has an obligation to follow the law, but courts do not have unbridled authority to enforce that obligation.

[00:42:13] Speaker 04:
In fact, sometimes the law prohibits courts from enforcing that obligation.

[00:42:18] Speaker 04:
That is what the court held, that your equitable power is limited

[00:42:22] Speaker 04:
to providing complete relief to the parties before the court, even if there's unlawful action going on somewhere else that maybe some other party who's injured by that hasn't brought a claim that's before the court.

[00:42:35] Speaker 13:
Does CASA even apply to APA cases?

[00:42:38] Speaker 13:
What's that question left unanswered?

[00:42:41] Speaker 04:
I think CASA applies to injunctive relief whenever it's centered.

[00:42:45] Speaker 04:
The court set aside the question of the APA remedies of they could earn says we'll leave that for another day.

[00:42:51] Speaker 04:
But it was dealing specifically with injunctions and it was a preliminary injunction case like this one.

[00:42:56] Speaker 04:
And the court said your relief is limited to addressing the injuries of the parties.

[00:43:01] Speaker 02:
APA injunctions don't arise under the APA, not the judiciary act, which is what was construed in that case.

[00:43:09] Speaker 02:
What is your best authority

[00:43:12] Speaker 02:
that either the text of the APA or historical practice at the time of the APA, so early agency review practice, so constrained agency orders, court orders to agencies after vacatur to comply with the law.

[00:43:31] Speaker 04:
I don't know.

[00:43:32] Speaker 04:
I don't have a case at my fingertips.

[00:43:34] Speaker 02:
Well, then I don't know how you can just assume CASA applies there, because it was interpreting a specific statute, the Jishir Act,

[00:43:42] Speaker 02:
and it's historical, very ancient applications.

[00:43:47] Speaker 02:
And to make clear, that's how we analyze these issues.

[00:43:50] Speaker 02:
And so we need to look at the APA and the practice at that time.

[00:43:56] Speaker 02:
And I believe that the practice of that time allowed such relief.

[00:44:01] Speaker 04:
I mean, if you're talking about a specific remedy that the APA grants, like VAKEDR, I think that's the analysis.

[00:44:06] Speaker 02:
I'm talking about the ability to enter

[00:44:10] Speaker 02:
orders declaratory or injunctive, if necessary, to enforce the negative relief.

[00:44:17] Speaker 04:
I think the APA just incorporates the background equitable principles.

[00:44:21] Speaker 02:
On what basis?

[00:44:23] Speaker 02:
As opposed to the practice of the time the APA was enacted.

[00:44:27] Speaker 04:
That's my understanding of how the APA Equitable Authority works, that it's not granting some new and different kind of- Okay, but if the history in fact were different with agency review, early 20th century.

[00:44:41] Speaker 02:
late 19th century.

[00:44:42] Speaker 02:
Then it would be a different answer.

[00:44:45] Speaker 02:
Sorry, that would be a different answer.

[00:44:48] Speaker 02:
What would be a different answer?

[00:44:50] Speaker 04:
It would be a different answer.

[00:44:52] Speaker 02:
CASA wouldn't apply then.

[00:44:53] Speaker 02:
CASA is about statutory construction.

[00:44:56] Speaker 04:
The CASA is construing the scope of a court's equitable authority.

[00:45:00] Speaker 02:
Under the judiciary act, under a specific statute.

[00:45:03] Speaker 02:
I think a different statute had a different history.

[00:45:07] Speaker 02:
Different answer.

[00:45:08] Speaker 04:
It's at least, I suppose, conceivable.

[00:45:10] Speaker 04:
But my understanding is- I think that's how it works.

[00:45:12] Speaker 02:
I mean, you think the court would do a different type of analysis for reviewing this question of the APA than it did in concert for reviewing it on the Judiciary Act?

[00:45:22] Speaker 02:
I think it would follow the same model.

[00:45:23] Speaker 02:
What did Congress intend?

[00:45:26] Speaker 04:
I think it ultimately would be a question of congressional intent.

[00:45:29] Speaker 04:
And my understanding is that APA left equitable remedies where it found them.

[00:45:34] Speaker 02:
It didn't- And that understanding is based on-

[00:45:37] Speaker 04:
That's my understanding of the APA.

[00:45:39] Speaker 04:
This is not an issue that has been explored in the briefing here.

[00:45:42] Speaker 04:
We'd be happy to submit supplemental briefs on it.

[00:45:44] Speaker 02:
That would be useful to the court.

[00:45:48] Speaker 02:
You've made a lot of arguments about how it applies to all injunctive relief, and that's why I was wondering what your basis for that was.

[00:45:55] Speaker 04:
I think this is simply a basic ethical principle that even predates CASA.

[00:45:59] Speaker 04:
The Supreme Court's cases have always said that

[00:46:02] Speaker 04:
an equitable remedy has to be tailored to the injury of the plaintiff.

[00:46:07] Speaker 04:
You always said that in APA cases.

[00:46:13] Speaker 11:
So whether or not the reasoning of CASA applies to the APA?

[00:46:19] Speaker 11:
I mean, here, as you say, we're reviewing a preliminary injunction.

[00:46:22] Speaker 11:
Does this court have any authority to uphold the preliminary injunction as APA desiccator or stay?

[00:46:31] Speaker 11:
I don't think so.

[00:46:32] Speaker 11:
That was not remedial.

[00:46:33] Speaker 11:
I mean, that would be the relevant inquiry then.

[00:46:36] Speaker 11:
I mean, we can't substitute a preliminary injunction with an APA stage, can we?

[00:46:43] Speaker 11:
I'm not aware of any authority.

[00:46:44] Speaker 04:
I'm not aware of any authority for that.

[00:46:46] Speaker 04:
That was not the district court didn't report to exercise like 705 authority here to stay the effective day.

[00:46:51] Speaker 11:
So the question of whether this applies under the APA isn't really one for this court.

[00:46:57] Speaker 04:
Well, I take the point of Judge Millett's questions to be whether the same equitable principles that govern injunctions in other contexts also apply to injunctions entered on the back of a finding of a violation of the APA.

[00:47:09] Speaker 04:
I think that they do.

[00:47:10] Speaker 04:
I think these are general principles that apply in equity that the Supreme Court has articulated in cases long predating CASA and recently reiterated in CASA.

[00:47:20] Speaker 07:
Can I just ask a specific question, make sure I understand how you think

[00:47:28] Speaker 07:
the analysis works.

[00:47:29] Speaker 07:
Let's suppose the statute requires the agency to provide a specific service and the agency has had 100 people employed to provide that service.

[00:47:45] Speaker 07:
And there is a plaintiff who sues and says, they have announced that they're going to

[00:47:55] Speaker 07:
every single one of those 100 people.

[00:47:58] Speaker 07:
So there will be no one to provide the service.

[00:48:03] Speaker 07:
And I want an injunction.

[00:48:05] Speaker 07:
And the court says, OK, I'm going to grant you your injunction.

[00:48:10] Speaker 07:
You would say that the most that the court could do would be to, say, provide that service

[00:48:23] Speaker 07:
in the court couldn't even say, you know, you have to, if you want to riff, you have to at least not riff all 100 so that there's somebody there to provide this service for this plaintiff.

[00:48:47] Speaker 07:
Were you saying that the court couldn't even say that?

[00:48:49] Speaker 07:
All the court can say is provide that service.

[00:48:54] Speaker 04:
I think the latter.

[00:48:55] Speaker 04:
I don't think the court has any jurisdiction over the RIF.

[00:48:57] Speaker 04:
I think that claim has to be channeled to the MSPB.

[00:49:01] Speaker 04:
The court could order the agency to provide a specific service that has been unlawfully withheld.

[00:49:07] Speaker 04:
And if they had to cancel the RIF in order to do it, they might have to cancel the RIF in order to do it, to comply with the court's order.

[00:49:12] Speaker 04:
But that's separate from actually enjoining the RIF.

[00:49:15] Speaker 04:
Maybe they don't need to enjoin the RIF to provide the service.

[00:49:18] Speaker 04:
Maybe they can do it through a contract or in some other fashion.

[00:49:22] Speaker 07:
injunction said provide that service.

[00:49:32] Speaker 07:
You can riff 99 people, but you can't rip all 100 because you need at least one to provide this service for this one plaintiff.

[00:49:41] Speaker 07:
You're saying that that would be an unlawful injunction.

[00:49:45] Speaker 04:
I do think the court lacks jurisdiction to do that because a challenge to the riff

[00:49:50] Speaker 04:
it's channeled to the MSPB under the CSRA scheme.

[00:49:54] Speaker 09:
Can I ask, in this case, I see the claim as being the administration is shutting down an agency and the plaintiffs are saying we're being harmed by the shutting down of the entire agency.

[00:50:08] Speaker 09:
And so in joining the shutdown of the agency gives complete relief to the parties before the court saying you're shutting down the whole agency.

[00:50:16] Speaker 09:
And part of how they're shutting down the whole agency

[00:50:20] Speaker 09:
is they are planning a riff of 90% of the employees.

[00:50:25] Speaker 09:
And they're asking for an injunction of various things that shut down the agency, including the riff.

[00:50:30] Speaker 09:
And it just seems to me that when you look at the actual claim that's being brought and the relief that's given, it is well matched.

[00:50:38] Speaker 09:
And the court of federal claims can't give an injunction.

[00:50:41] Speaker 09:
they would have to wait until the employees are all fired and then try to get reinstated.

[00:50:45] Speaker 09:
But what's being asked for is stop the shutting down of this agency so that we can, you know, at a preliminary injunction so we can litigate whether all this is lawful or not.

[00:50:55] Speaker 09:
And so for the time being,

[00:50:57] Speaker 09:
don't let them riff all the employees who do the agency's work.

[00:51:02] Speaker 09:
So I don't see why that claim as it's before the court can't be addressed by this injunction.

[00:51:07] Speaker 09:
And I don't see how the court of federal claims is in charge of giving injunctions for risks.

[00:51:12] Speaker 09:
I don't think they can do that, can they?

[00:51:15] Speaker 04:
The MSPB can grant preliminary relief in certain cases.

[00:51:19] Speaker 09:
I'm sorry, MSPB.

[00:51:20] Speaker 04:
I was thinking of this morning's case.

[00:51:21] Speaker 04:
I understood.

[00:51:22] Speaker 04:
They can grant preliminary relief on motion of the special counsel.

[00:51:26] Speaker 04:
And even if there is no such motion, they can expedite review.

[00:51:30] Speaker 09:
So the MSPB can enjoin an entire agency from riffing its entire workforce where the claim is that you're shutting down the whole agency and it's a separation of powers claim.

[00:51:40] Speaker 09:
Is that properly before the MSPB?

[00:51:42] Speaker 04:
That's my understanding if it's done on the motion of the special counsel that they can enter preliminary relief, even if they don't do preliminary relief, they can do expedited proceedings, even if they do none of that.

[00:51:53] Speaker 04:
There is a remedy that is fully adequate to employment harms on the back end reinstatement.

[00:51:58] Speaker 04:
and back pay.

[00:52:00] Speaker 04:
And that includes if they determine that the riff was without a bona fide lawful basis unwinding the riff and reinstating those employees to their former position.

[00:52:09] Speaker 09:
So you would agree that this is not the typical case that gets sent to the MSPB.

[00:52:13] Speaker 09:
Like there's a claim that the entire agency is being shut down, which includes rifts of 90% of the employees.

[00:52:21] Speaker 09:
This case is very much like something that should be before district court and not the MSPB.

[00:52:25] Speaker 04:
You don't think so?

[00:52:26] Speaker 04:
I think this case is atypical in many respects, but I don't think that negates CSRA conclusion.

[00:52:33] Speaker 04:
That is exactly the argument that the Supreme Court rejected in Elgin, where the plaintiff came in and said, I've got a constitutional bill of attainder, an equal protection claim.

[00:52:42] Speaker 04:
This is nothing like the ordinary work-a-day merit system protection principle cases that the MSPB hears.

[00:52:48] Speaker 09:
But what about Axon?

[00:52:49] Speaker 09:
Is this more like Axon, like where you're challenging bigger things and the institution itself?

[00:52:56] Speaker 04:
No, I know the plaintiffs point to Axon, but Axon left CSRA preclusion where it was.

[00:53:00] Speaker 04:
It had nothing to do with CSRA preclusion.

[00:53:03] Speaker 04:
It specifically distinguished Elgin and said Elgin is the case that governs removal of employees.

[00:53:09] Speaker 04:
That is squarely what Elgin holds, that the MSPB has exclusive jurisdiction over claims relating to the removal of employees.

[00:53:17] Speaker 04:
It does not matter why.

[00:53:18] Speaker 04:
It does not matter what the reason is, whether it's

[00:53:22] Speaker 04:
This is the result of an unconstitutional statute, or here the claim is it's a result of an unlawful or unconstitutional closure of the agency.

[00:53:29] Speaker 04:
We're not looking at the reason for the removal.

[00:53:33] Speaker 04:
We're looking at the nature of the action taken.

[00:53:36] Speaker 04:
And that's what triggers the MSPB review scheme.

[00:53:39] Speaker 04:
So if you're talking about removal of employees, it must go.

[00:53:41] Speaker 02:
What if you've got some employees who are about to be riffed or have been riffed?

[00:53:52] Speaker 02:
and they're entitled to due process, which is what Congress is providing through the CSRA normally.

[00:54:02] Speaker 02:
But if the risks are part of, I understand there's a dispute in this case, so for hypothetical case, for assume that there is in fact a concrete written down, fully announced, published in the Federal Register, we are shutting down this agency and it will be shut down in two months, okay?

[00:54:22] Speaker 02:
And the employees, they start getting fired.

[00:54:29] Speaker 02:
They have to go get their due process from the MSPB or maybe FLRA.

[00:54:36] Speaker 02:
Could those, and the court has before an action like this with a variety of plaintiffs complaining about the challenging the decision to shut down the agency.

[00:54:51] Speaker 02:
Could a district court prevent shutdown of the agency solely so that the MSPB would have the capacity to provide process and relief to these individuals who cannot be reinstated once the agency is abolished?

[00:55:16] Speaker 02:
This is not like abolishing a single position or a single office.

[00:55:19] Speaker 02:
The entire agency will be gone.

[00:55:22] Speaker 02:
So we're just halting the shutdown, at least of the offices from which these employees, in which they work, to ensure that if relief is ordered, they can be reinstated.

[00:55:38] Speaker 04:
I'm having difficulty envisioning exactly what that order would say or look like.

[00:55:43] Speaker 04:
Judge Moulin would just be there.

[00:55:45] Speaker 04:
You have to keep a director of

[00:55:47] Speaker 02:
CFPB so that when the MSP whatever statutorily mandated it has to exist so that those that who are wrongfully terminated they'll have a place to go so that relief can be given.

[00:56:00] Speaker 02:
I don't know what relief can be given to people.

[00:56:04] Speaker 02:
The agency can be gone before they can even get their ALJ hearing at the MSPB.

[00:56:09] Speaker 04:
I'm not sure what it means for the agency to be gone.

[00:56:12] Speaker 04:
I mean as long as they're still an acting director.

[00:56:14] Speaker 02:
I mean if you want to fight the hypothetical fight the hypothetical but I'm telling you that

[00:56:18] Speaker 02:
However, can the court issue some order that ensures there will be an agency to which these employees could be returned if unlawfully terminated or ripped?

[00:56:37] Speaker 04:
I think likely so, but I'm not sure why that would go beyond something very limited, like you have to keep a director, because if the MSPB is granting relief, I think that belief would look something like.

[00:56:48] Speaker 04:
That's a tailoring issue, but not a power issue.

[00:56:50] Speaker 02:
I'm just raising the power question, the authority question.

[00:56:53] Speaker 02:
If it's necessary to ensure that relief could be afforded to these people, they have time to pursue their remedies.

[00:57:01] Speaker 04:
Yeah, if that sort of relief is necessary to remedy the injuries of the plaintiffs before the court, and I don't take it that would be talking about the removal of specific employees.

[00:57:10] Speaker 04:
I don't think that would be.

[00:57:10] Speaker 02:
I'm talking about the employees too, who wouldn't have time to even, like I said, to even get before an ALJ over at the MSPB, let alone have the case adjudicated and go up through all the different levels to get reinstated.

[00:57:23] Speaker 02:
I mean, it just seems to me that the concern is that

[00:57:28] Speaker 02:
that channeled, the process to which they're being channeled will not be able to function because their agency is getting abolished.

[00:57:39] Speaker 02:
And all this is assuming that's unlawful.

[00:57:41] Speaker 02:
There's debates about that.

[00:57:42] Speaker 02:
You can even argue that.

[00:57:44] Speaker 02:
But there'll be no capacity for them to get due process, any relief, unless there is an agency for them to go back to and to be reinstated.

[00:57:58] Speaker 04:
The MSPB, if it determines that the riff is unlawful, it can unwind it and say, you must reinstate these

[00:58:07] Speaker 04:
employees to their former positions.

[00:58:09] Speaker 04:
And as long as there is a you to whom that order can be addressed.

[00:58:12] Speaker 02:
I want to be crystal clear here.

[00:58:14] Speaker 02:
I assume an individual employee can't bring that claim.

[00:58:17] Speaker 02:
You said a special counsel would have to bring that claim.

[00:58:20] Speaker 04:
No, I think the special counsel is just about preliminary relief.

[00:58:23] Speaker 04:
Absolutely individual employees can bring a challenge to a RIF before the MSBB, and the RIF can assess whether that was.

[00:58:30] Speaker 02:
I understand, but I guess my question is by the time they get

[00:58:35] Speaker 02:
before an ALJ, let alone the board itself, the age is going to be gone, under my hypothetical.

[00:58:41] Speaker 02:
The age is going to be gone.

[00:58:44] Speaker 04:
What do you mean by the agency is gone?

[00:58:45] Speaker 02:
The agency is going to be gone.

[00:58:47] Speaker 02:
That's what the memo is that I hypothesized for you.

[00:58:49] Speaker 02:
We are abolishing the agency.

[00:58:52] Speaker 02:
I'll leave it what the President of the United States wants to do with the person that was acting in that position.

[00:58:56] Speaker 02:
It's going to be gone.

[00:58:58] Speaker 04:
It means there's no longer any director of the agency.

[00:59:01] Speaker 02:
I'm just telling, yes, it's going to be gone.

[00:59:03] Speaker 02:
That was my final agency action, my memo written clear as could be published in the federal register.

[00:59:09] Speaker 02:
It's going to be gone.

[00:59:10] Speaker 02:
All kinds of problems with that.

[00:59:14] Speaker 02:
For the employees, for the individual, the plaintiffs who are channeled to the CSRA, can the district court enjoin the complete

[00:59:30] Speaker 02:
abolition of this agency.

[00:59:33] Speaker 02:
I'm not here to talk about the tailwind, what that has to look like, whatever way, shape or form, in some way, shape or form, preclude that so that there could be a remedy.

[00:59:44] Speaker 02:
available for these plaintiffs?

[00:59:46] Speaker 04:
It's not a question I thought deeply about.

[00:59:48] Speaker 04:
It seems to me the answer is likely yes, that the court could do whatever minimal action is necessary to ensure that there's still a director there to whom the MSDB could issue an order saying reinstate these employees.

[01:00:00] Speaker 02:
Yes, but what that would entail.

[01:00:03] Speaker ?:
Okay.

[01:00:03] Speaker 07:
Thank you.

[01:00:03] Speaker 07:
Can I just move to the constitutional claim?

[01:00:12] Speaker 07:
So

[01:00:13] Speaker 07:
You started out your presentation saying that there was no shutdown decision, and the agency and the president does not contend that there is authority to shut down the agency to cease its operation.

[01:00:34] Speaker 07:
The district court made a finding otherwise, that there was such a decision that had been made.

[01:00:43] Speaker 07:
Is it your understanding that we review that ruling finding as a finding of fact by the clearly erroneous standard or do you have a different way we should look at that issue?

[01:01:05] Speaker 04:
I mean, I think it depends on for which issue in the case you're analyzing this punitive decision.

[01:01:12] Speaker 04:
If you're asking the question, was it a final agency action?

[01:01:16] Speaker 07:
No, I'm talking about the constitutional claim that this violates separation of power.

[01:01:22] Speaker 04:
Right.

[01:01:22] Speaker 04:
So we have our argument under Dalton that this isn't a bona fide constitutional question, that it is the claim premised on the violation of statutes and therefore there is no equitable constitutional claim.

[01:01:33] Speaker 04:
I'll bracket that for a moment.

[01:01:35] Speaker 04:
If you say there is an equitable constitutional claim, then yes, I think you would be reviewing that decision

[01:01:42] Speaker 04:
district court's finding that there was such a decision by the president or the agency head or whoever the district court found made the decision wasn't entirely clear, you would analyze that under the clear error standard.

[01:01:54] Speaker 04:
Now we think the district court committed some threshold legal errors here that mean that even the clear error standard doesn't apply.

[01:02:01] Speaker 04:
For example, the district court failed entirely to apply the

[01:02:06] Speaker 04:
presumption of regularity that should govern review of executive actions.

[01:02:10] Speaker 04:
And when a district court makes findings under an incorrect legal standard or under a misapprehension of applicable legal principles, the clear error standard doesn't apply.

[01:02:19] Speaker 04:
So we have that argument.

[01:02:21] Speaker 04:
And if you got past that and rejected that argument, then I think we're doing a constitutional claim.

[01:02:26] Speaker 04:
You would be looking at whether that decision was clearly erroneous.

[01:02:30] Speaker 04:
And even under that standard, we think that it was clearly erroneous because there's no

[01:02:35] Speaker 04:
fair reading of this record as a whole that supports the conclusion that the acting director had made a decision at any point in early February or thereafter to entirely close the agency and cease performing its mandatory statutory duties.

[01:02:52] Speaker 04:
There is simply too much evidence starting from February 10th itself and thereafter of the agency leadership

[01:03:01] Speaker 04:
acting director and the chief legal officer mark pay a letter repeatedly taking actions to ensure that statutory duties were performed and performed and i've yet to hear a credible explanation of why you would do that if you are acting on orders to close down the agency entirely and cease performing those duties so i take that point and let's put the dalton issue to the side for a moment so if the court were to

[01:03:30] Speaker 07:
say, well, we don't think that that finding was clearly erroneous.

[01:03:35] Speaker 07:
To go back to what we've been discussing as far as remedy goes, if we say, okay, we don't think that that's clearly erroneous and just for the sake of this question, we don't think that there's a Dalton problem with proceeding towards deciding the separation of powers.

[01:03:56] Speaker 07:
and we find that there is at least a likelihood of success on the merits of a separation of powers, cause of action.

[01:04:07] Speaker 07:
How does it work with respect to your view of remedy or scope of leave?

[01:04:16] Speaker 07:
Because if the constitutional violation is shutting down the agency when

[01:04:26] Speaker 07:
and the executive doesn't have that authority, how does, you know, even under your view of CASA and related precedent, how does it work as far as determining what is the scope of the injunction?

[01:04:45] Speaker 07:
If the injunction is you cannot shut down the agency,

[01:04:51] Speaker 07:
Your argument's the same, you still can't have, I guess it's problem three of the preliminary injunction, even if we find likelihood of success on the merits on the constitutional claim, I'm trying to understand that.

[01:05:12] Speaker 04:
Right, so that doesn't change my answer at all, scope of the rending.

[01:05:16] Speaker 04:
What the nature of the violation is, whether it's constitutional, APA, you're entering an injunction,

[01:05:21] Speaker 04:
has to comply with the complete relief to the partisan again that's the ceiling it's not just any remedy that provides complete relief.

[01:05:29] Speaker 04:
If you order them not to shut down and do all the things that this injunction requires maybe that provides complete relief, but the problem is it goes beyond what's necessary.

[01:05:38] Speaker 04:
to provide complete relief.

[01:05:41] Speaker 04:
So I think CASA and the equitable principles say you have to match the injunction to the injury that brought the plaintiff in to court in the first place and is irreparable.

[01:05:50] Speaker 04:
I don't think that depends on what the basis for finding a violation in the first place.

[01:05:54] Speaker 07:
So as far as Baldwin goes, there's a finding that

[01:06:03] Speaker 07:
the executive did make the decision to shut down this agency.

[01:06:11] Speaker 07:
And there's no claim by the executive.

[01:06:14] Speaker 07:
I mean, the executive is saying, well, we didn't really, that's not what happened, but let's assume for the sake of this question that we don't find that finding to be clearly erroneous.

[01:06:28] Speaker 07:
Then aren't we in a situation where the executive

[01:06:33] Speaker 07:
appears to have taken an action not relying on a statute at all because they're not referring to any statute.

[01:06:45] Speaker 07:
And so there's no kind of statutory basis for their argument or no statute that we have to construe.

[01:06:55] Speaker 07:
Why isn't that outside of

[01:07:01] Speaker 04:
Because there is no constitutional dispute in this case, but I understand Dalton to hold is if the alleged constitutional violation is premised on claim violation of statutes that is not a constitutional claim that can be brought in equity and Dalton question is not.

[01:07:20] Speaker 04:
constitutional claim or nothing it's constitutional claim or the non statutory ultra various cause of action which the plaintiffs have abandoned here, but that is a remedy that would be available for some of the more extreme hypotheticals we've heard about, for example.

[01:07:35] Speaker 04:
an agency doing something that they just concede they lack any constitutional or statutory authority for.

[01:07:41] Speaker 04:
That sounds like you'd have a pretty good ultra-virus claim for that.

[01:07:46] Speaker 04:
The issue would be whether there's an adequate alternative remedy.

[01:07:50] Speaker 04:
And if there is an adequate alternative remedy, then by definition, the claim won't evade review.

[01:07:55] Speaker 04:
And if there isn't, you've got an ultra-virus claim.

[01:07:59] Speaker 04:
But I think Dalton is pretty clear, especially if you look at footnote six,

[01:08:04] Speaker 04:
But note six says in cases where the executive concedes either explicitly or implicitly that the only source of authority is statutory and isn't invoking independent constitutional authority like the president did in Youngstown.

[01:08:20] Speaker 04:
The court said there is no constitutional question, whatever.

[01:08:23] Speaker 03:
Here we don't have that.

[01:08:25] Speaker 03:
Here we have the government disclaiming statutory and constitutional authority to shut down.

[01:08:31] Speaker 03:
So

[01:08:32] Speaker 03:
The position of the government is we have no statutory authority.

[01:08:37] Speaker 03:
So there's no need, as there was under Dalton, to worry about, well, you know, we need to construe the statute to determine whether there's a violation or there's an end run around some limitation.

[01:08:47] Speaker 03:
The reason that Dalton is there is really to protect the role of Congress in defining what remedies are available.

[01:08:56] Speaker 03:
You know, it's block.

[01:08:57] Speaker 03:
and to prevent where Congress has made determination, you can challenge a shutdown, but you have to do X, Y, and Z, that the constitutional claim not be used to end run that.

[01:09:09] Speaker 03:
But here we don't have that, because it's the difference between in excess of statutory authority, where Dalton says, it's a statutory claim,

[01:09:20] Speaker 03:
and in the absence of, which is Youngstown.

[01:09:23] Speaker 03:
And you can say that, well, those really meld, but they don't.

[01:09:27] Speaker 03:
That's the line that's drawn by Dalton on the one hand in excess and Youngstown on the other, no statutory authority.

[01:09:35] Speaker 03:
And we're in Youngstown land in part because the government has appropriately conceded an absence of statutory authority to shut down the agency.

[01:09:43] Speaker 03:
We don't have any worry about end run.

[01:09:45] Speaker 04:
So I disagree with that analysis, Judge Pillard.

[01:09:48] Speaker 04:
You won't be surprised to hear.

[01:09:50] Speaker 03:
But I'm happy to hear your analysis.

[01:09:52] Speaker 04:
The paragraph that talks about an absence of authority in Dalton when it's talking about Youngstown, it's that same paragraph.

[01:09:57] Speaker 04:
It couples both ideas.

[01:09:59] Speaker 04:
An absence of authority coupled with an assertion of constitutional authority.

[01:10:03] Speaker 04:
That's what creates a constitutional dispute because you have to decide what the Constitution means.

[01:10:08] Speaker 04:
This distinction between excess of authority on the one hand and absence of authority on the other.

[01:10:14] Speaker 04:
I think is entirely illusory.

[01:10:16] Speaker 04:
And it strikes me as very similar to the distinction that the Supreme Court rejected in a slightly different context in the city of Arlington.

[01:10:23] Speaker 07:
So the case would be different if the president says, I'm shutting down, I'm ordering the shutdown of this agency because I believe that's within my authority under the take care clause.

[01:10:45] Speaker 07:
So that is a Dalton claim.

[01:10:51] Speaker 07:
I'm sorry, a claim that's not, that can be brought, but if the president doesn't utter those words and just is thinking that and says, I'm shutting down the agency and doesn't spike any statutory basis, then that case is covered by

[01:11:14] Speaker 07:
but note six of Dalton can't be brought.

[01:11:18] Speaker 04:
That analysis strikes me as correct.

[01:11:20] Speaker 04:
And also if the executive doesn't assert constitutional authority as a defense and litigation and create a constitutional.

[01:11:27] Speaker 07:
So it's all based on magic words.

[01:11:29] Speaker 04:
I don't think it's based on magic words.

[01:11:31] Speaker 04:
I think the question is, look at what we're fighting about in the case.

[01:11:35] Speaker 04:
Are we fighting about a question of compliance with statutes or are we fighting about a question of what the constitution means?

[01:11:42] Speaker 03:
I think we're fighting about

[01:11:44] Speaker 03:
question whether, we're not fighting about the meaning of a statute because we all agree.

[01:11:49] Speaker 03:
I agree, it's not the meaning.

[01:11:50] Speaker 03:
This statute does not authorize, unlike the base closing statute in Isham Dalton, under any condition, it does not authorize the executive to shut down the CFPB.

[01:12:01] Speaker 03:
So we're in, we're not in the question of access of authority when the question of no statutory authority.

[01:12:07] Speaker 03:
And I'm just not seeing how that triggers the Dalton concern because

[01:12:13] Speaker 03:
The executive branch hasn't invoked any statute.

[01:12:15] Speaker 03:
There's no limited right of action under a statute that is being run.

[01:12:22] Speaker 03:
It is, you know, and the fact that the government also isn't claiming constitutional authority shouldn't distinguish this case from Youngstown because that just makes the constitutional claim on its merits open and shut.

[01:12:37] Speaker 04:
I agree that the dispute in this case is not about the meaning of statutes, but it is still about compliance with statutes.

[01:12:43] Speaker 04:
It is a factual dispute about whether the statutes are being complied with.

[01:12:48] Speaker 03:
Once you resolve that and the statute doesn't tell you one way or another, it's like either it's on or it's off.

[01:12:56] Speaker 03:
Nothing about the statute guides that determination, does it?

[01:13:02] Speaker 04:
Yes, when you open the statute, you see that it does not confer the authority to close down the agency.

[01:13:07] Speaker 03:
Exactly.

[01:13:08] Speaker 03:
There's no authority.

[01:13:10] Speaker 04:
Go ahead.

[01:13:10] Speaker 04:
But it's still predicated entirely on a violation of the statute.

[01:13:14] Speaker 01:
This question is a follow-on to what the filer asked.

[01:13:18] Speaker 01:
So suppose, just suppose that I agree with you, just hypothetically, that I agree with you that it's hard to draw a distinction between absence of authority and excessive authority.

[01:13:27] Speaker 01:
I take your point on that with Arlington and everything, and that either works or it doesn't.

[01:13:31] Speaker 01:
Felicitous to see my reading on that.

[01:13:33] Speaker 01:
But part of Judge Phillips' question was also, this case is different because the government isn't even asserting that it has the authority, either under the statute or the Constitution, to do the thing that the plaintiffs allege was done, which is to shut down the agency.

[01:13:48] Speaker 01:
And so if you just bracket away the excess or absence, if you just say, well, this case is really about a situation in which

[01:13:55] Speaker 01:
The government just isn't defending that it can do that thing.

[01:13:58] Speaker 01:
So it's not defending it under the statute.

[01:14:00] Speaker 01:
It's not defending it under the Constitution.

[01:14:02] Speaker 01:
Well, then in that situation, what's the point of the Dalton move to prevent the taking of a statutory claim and converting it into a constitutional claim?

[01:14:12] Speaker 01:
Because the government just isn't saying you can do it at all.

[01:14:16] Speaker 01:
So for that reason alone, is that a basis for saying the Dalton move that we need to be concerned about, which is we can't allow the bringing of a constitutional claim in a situation where the statutory claim ought to be with governments.

[01:14:30] Speaker 01:
That just doesn't apply in a context in which the government isn't defending it under the statute, the thing that's being challenged, or the constitution.

[01:14:38] Speaker 04:
I think the same reasons that caused the court to say we're not going to eviscerate the distinction between all Trevira's and constitutional claims and broaden the ladder beyond all recognition in cases where what you're fighting about is the meaning of the statute apply to cases where the dispute is whether factually you are complying with the statute.

[01:14:55] Speaker 04:
You don't get to any constitutional issue of saying this disregards separation of powers principles unless you first conclude in this case, you are violating the statute.

[01:15:04] Speaker 04:
You are doing something that the statute does not authorize you to do.

[01:15:07] Speaker 04:
For example, statute expressly authorizes the director to set the number of employees that the Bureau will have.

[01:15:16] Speaker 04:
Plaintiffs, I think one take on their claim could be, well, that does not authorize you to set the number at zero.

[01:15:22] Speaker 04:
I would agree with that statute doesn't authorize zero employees because it imposes mandatory statutory duties that the agency has to perform that it's not going to get done with zero employees simply claim that you're exceeding the authority granted in the statute it's not a true separation of powers claims where

[01:15:39] Speaker 04:
The statute just can't grant you that by removal restrictions or line item veto.

[01:15:44] Speaker 04:
Congress can authorize and has authorized the executive branch to close agencies.

[01:15:50] Speaker 04:
It didn't do that in this case.

[01:15:51] Speaker 04:
And so if the executive did that, it would be violating the statutes.

[01:15:55] Speaker 03:
Right.

[01:15:55] Speaker 03:
Well, it would be unauthorized by the statute.

[01:15:59] Speaker 03:
Would it be violating the statute?

[01:16:01] Speaker 03:
It would be, yeah, it would be unauthorized.

[01:16:04] Speaker 04:
Right.

[01:16:05] Speaker 04:
I don't think that distinction is a stable one, Judge Miller, because agencies only have the authority that Congress confers on them.

[01:16:13] Speaker 04:
So anytime they exceed the authority that they have, they are acting in the absence of authority.

[01:16:19] Speaker 04:
And so you could characterize.

[01:16:21] Speaker 08:
Acting in excess is no less unlawful in violation.

[01:16:26] Speaker 04:
It's not only no less unlawful I think it's the same thing if you're acting in excess you're acting in the absence so you can imagine, let's suppose that President Biden had called up the Secretary of Education and said I'm here by directing you to promulgate the student loan forgiveness plan.

[01:16:41] Speaker 04:
that the Supreme Court ultimately decided was outside the authority of the agency and Biden versus Nebraska.

[01:16:47] Speaker 04:
Do we all of a sudden now have an equitable constitutional claim that can be brought to enjoin the Secretary of Education from following the president's directive because there is no authority in the statute to forgive student homes and there's no independent constitutional authority?

[01:17:02] Speaker 03:
There was a question about, I mean,

[01:17:04] Speaker 03:
He thought there was authority there.

[01:17:06] Speaker 03:
And maybe once the Supreme Court has spoken, that changes the landscape.

[01:17:09] Speaker 03:
Maybe that's the point you're making.

[01:17:10] Speaker 03:
But no, I don't think it's a different zone.

[01:17:12] Speaker 03:
There is a distinction between absence of authority, Youngstown, and exceeding authority.

[01:17:20] Speaker 03:
Dalton, it's not that we're making that up.

[01:17:21] Speaker 03:
And yes, you can at a high level of abstraction sort of see, you know, cross a bridge and characterize one as the other.

[01:17:28] Speaker 03:
But we have to follow these two cases.

[01:17:31] Speaker 03:
And I'm not ready to overrule.

[01:17:33] Speaker 03:
So it seems to me we really are in that, that the city but that's not the question I've been wanting to ask you since we were talking about the, the seven sections 7062 remedial scope, and I was looking for the footnote in Lujan footnote to which, you know, now is the case where they're saying this is,

[01:17:57] Speaker 03:
not a discreet action because the plaintiffs are trying to sort of weave together a whole panoply of separate actions that are happening in different places and different times and call it a plan and challenge it as one.

[01:18:09] Speaker 03:
But then the court says in footnote two, if there is in fact some measure across the board, it can of course be challenged under the APA by a person adversely affected and the entire land withdrawal review program

[01:18:27] Speaker 03:
end quotes, because that's what the plaintiffs were packaging their claim as, insofar as the content of that particular action is concerned, would thereby be effective.

[01:18:37] Speaker 03:
So I take that to be saying you have APA remedy that would be program-wide.

[01:18:45] Speaker 03:
Now, I think your answer is, right, set aside.

[01:18:48] Speaker 03:
You would have set aside power.

[01:18:50] Speaker 03:
But then we're in now in the preliminary injunction context.

[01:18:55] Speaker 03:
I don't think this has been brief, but there is power under the APA under section 705 to the extent necessary to prevent irreparable injury when a case is pending, the reviewing court quote, may issue all necessary and appropriate process to preserve status of rights pending conclusion of the proceedings.

[01:19:19] Speaker 03:
So I take the APA and another standard

[01:19:22] Speaker 03:
remedy is set aside, but this is a follow on to a series of questions from Judge Malette.

[01:19:27] Speaker 03:
There is also equitable authority under the APA.

[01:19:31] Speaker 03:
And that's sort of the situation that we're in now is if there's the footprint of the violation supports a measure across the board being affected by the relief and we're in this posture where

[01:19:50] Speaker 03:
The court is trying to hold things steady until there's a final conclusion.

[01:19:55] Speaker 03:
Why not recognize that there's preliminary injunctive power still tailored to the maintaining the existence of the agency, but there's a little more there than you were arguing when you were insisting that it has to be limited to ensuring that the individual plaintiff gets the service.

[01:20:16] Speaker 04:
I think the district court here invoked section 705 or any of that remedial authority.

[01:20:22] Speaker 04:
But even if it had, I don't think it would change the analysis.

[01:20:24] Speaker 04:
Government's position is the same equitable principles that applied in CASA applied to those equitable remedies under the APA.

[01:20:32] Speaker 04:
And it still has to be party-specific relief that goes no farther than is necessary to remedy the injury of the parties before the court.

[01:20:39] Speaker 03:
But I took Judge Millett's whole series of questions to be probing.

[01:20:44] Speaker 03:
How do we know

[01:20:46] Speaker 03:
so far as is necessary.

[01:20:48] Speaker 03:
And let's say we think that so far as is necessary is to have a functioning CFPB that is fulfilling the statutory obligations.

[01:20:57] Speaker 03:
Let's say we think that.

[01:20:59] Speaker 03:
You may disagree, but let's say we're prepared to hold that.

[01:21:02] Speaker 03:
I'm really interested in knowing what you think appropriate narrow, like what's the minimum or the maximum you would tolerate.

[01:21:12] Speaker 03:
in terms of just honoring the executive's prerogative to downsize the agency, but also perform the statutory mandated functions.

[01:21:24] Speaker 03:
Can you write that for me?

[01:21:25] Speaker 03:
What would that look like?

[01:21:27] Speaker 03:
And I'm not gonna take you to be agreeing that this is appropriate.

[01:21:30] Speaker 04:
I've heard all your arguments.

[01:21:31] Speaker 04:
I appreciate it.

[01:21:33] Speaker 04:
I think the analysis is going to depend on which plaintiffs have standing and which injuries are irreparable.

[01:21:40] Speaker 04:
that's gonna tell you what the court can issue an injunction to remedy.

[01:21:44] Speaker 04:
It will be in the nature of provide this particular statutorily mandated service to this plaintiff who has shown that they will be irreparably harmed without it pending litigation of this case.

[01:21:56] Speaker 03:
That's just flipping back into 7061.

[01:21:57] Speaker 03:
I mean, this is 7062 where there is a measure across the board that has been found to be a violation in response to the individual suit

[01:22:10] Speaker 03:
they're entitled under the legal theory that they've raised to something that will provide them full relief.

[01:22:18] Speaker 03:
And I mean, I guess to provide full relief, I mean, so you'd require an analysis of all the different interdependencies, like if the consumer hotline is at issue.

[01:22:31] Speaker 03:
What are all the different capabilities of the Bureau that feed into that?

[01:22:35] Speaker 04:
I don't think you would need to get into that.

[01:22:37] Speaker 04:
Let's suppose that it's the Virginia Poverty Law Center, I think, is the one who premised their standing on the existence of the consumer hotline.

[01:22:44] Speaker 04:
Let's suppose that they had standing and a viable cause of action, and they've checked all the other boxes, and we're now at the question of what sort of preliminary injunction can we enter to preserve the status quo vis-a-vis that plaintiff?

[01:22:56] Speaker 04:
I think the injunction would say you must maintain the consumer hotline at the end.

[01:23:01] Speaker 04:
You don't have to get into how many employees or contracts or none of that.

[01:23:05] Speaker 04:
You just say, while we're litigating this case, you must continue to keep the consumer hotline live as far as necessary to remedy the injury of the BPLC that relies on that for its organizational activities.

[01:23:16] Speaker 04:
Again, I'm not conceding.

[01:23:17] Speaker 04:
I don't think they have standing on that basis.

[01:23:19] Speaker 04:
If you got past all that, I think that's what an appropriately tailored injunction would look like.

[01:23:27] Speaker 13:
Just, do we essentially only have Youngstown if the executive actually asserts the constitution?

[01:23:37] Speaker 13:
In other words, that's a defense?

[01:23:40] Speaker 04:
That is correct.

[01:23:40] Speaker 04:
I think that's what the court said in footnote six of Dalton, that if the executive concedes that it's not invoking constitutional authority and the only potential source of authority is a statute, there is no constitutional question, whatever raised.

[01:23:54] Speaker 04:
That is a dispute about compliance with statutes

[01:23:56] Speaker 04:
that has to comply with the separate requirements for all tribunals.

[01:24:00] Speaker 13:
And if the APA had existed at the time of Youngstown, why do you think that that court didn't refer plaintiffs to the APA for their cause of action proceeding?

[01:24:10] Speaker 04:
Because there was a constitutional dispute in Youngstown.

[01:24:12] Speaker 04:
The president invoked authority under the Take Care Clause and Article 2 and said, regardless of any statutes, I have the independent authority to do this constitutionally.

[01:24:21] Speaker 04:
If in Youngstown, the president had simply said, I'm doing this, notwithstanding the absence of any statutory or constitutional authority, then that would be an ultra-virus claim.

[01:24:31] Speaker 04:
And probably a pretty good one.

[01:24:32] Speaker 04:
If there weren't an adequate alternative remedy, which on the facts of Youngstown, there probably was an APA remedy because the secretary of commerce had issued possessory orders to implement the president's executive order that likely would have been final agency action under the APA.

[01:24:46] Speaker 13:
And I'm kind of asking it because plaintiffs are generally masters of their complaint.

[01:24:50] Speaker 13:
And so are we backing into essentially this defense by that assertion?

[01:24:55] Speaker 04:
I do think it depends on the nature of the defense that the executive branch asserts.

[01:25:01] Speaker 04:
I think this goes to the footnote in the panel opinion talking about how the equitable right of action is not really cause of action because causes of action didn't exist as such in equity.

[01:25:13] Speaker 04:
What we're really talking about is there an equitable right to relief?

[01:25:17] Speaker 04:
And I think what Dalton says is if we're fighting about the meaning of the constitution, that's the thing that can be brought free and clear of the requirements that apply to cases where we're fighting about compliance with statutes.

[01:25:28] Speaker 09:
So I read Dalton to say that not every action in excess of statutory authority is constitutional.

[01:25:37] Speaker 09:
But I think you read Dalton to say that if it's a claim about acting in excess of statutory authority, it is never constitutional.

[01:25:46] Speaker 09:
And I'd like to sort of understand if there are any limits to your position.

[01:25:51] Speaker 09:
So what if the president issued an executive order that said, I will not comply with any statutes?

[01:25:58] Speaker 09:
Would there be a separation of powers claim or is that a claim that he's exceeding his authority under every statute?

[01:26:07] Speaker 04:
I think it would be the latter if he's not asserting some constitutional basis to disregard the particular statute.

[01:26:13] Speaker 09:
So if the president says, I will not comply with any statutes in your view, there's no separation of powers issue.

[01:26:21] Speaker 04:
I would say that there's no separation of powers violation that can be brought as an equitable constitutional claim.

[01:26:27] Speaker 04:
What I understand Dalton to say is even if you could think of the disregard of statutes as a species of separation of powers claim, it's not the kind that can be brought through this equitable right of action.

[01:26:43] Speaker 09:
So you would concede though?

[01:26:45] Speaker 09:
there's a separation of powers issue.

[01:26:46] Speaker 09:
If we have an executive saying, I will never abide by any legislation passed by the legislature, that is a separation of powers problem.

[01:26:55] Speaker 04:
I think there is a separation of powers concerns if the executive branch disagrees.

[01:26:58] Speaker 09:
But it can't be litigated in your view.

[01:27:00] Speaker 04:
It can't be brought as an equitable constitutional claim.

[01:27:03] Speaker 09:
It can't be litigated at all?

[01:27:04] Speaker 04:
How can it be litigated?

[01:27:05] Speaker 04:
It can be brought as an ultra-vira's claim.

[01:27:08] Speaker 04:
There are stringent requirements for ultra-vira's claims.

[01:27:11] Speaker 09:
But why can't it be brought as a constitutional claim

[01:27:14] Speaker 09:
It is clearly a constitutional claim as you conceded.

[01:27:19] Speaker 09:
Because that's what Dalton says.

[01:27:21] Speaker 09:
It says we're not going to... I guess what I'm trying to... The point I'm trying to make is that's not what Dalton says.

[01:27:26] Speaker 09:
I do think it is, Liz.

[01:27:27] Speaker 09:
These are the implications of reading Dalton the way you say.

[01:27:30] Speaker 04:
I take your point, Judge Pan, that there are some passages in Dalton where the course has not every statutory violation.

[01:27:36] Speaker 04:
But when it gets to that next paragraph where it discusses Youngstown, first sentence of the next paragraph where it sums up its holding,

[01:27:43] Speaker 04:
It's broader than that.

[01:27:44] Speaker 09:
So the court says, well, I think that's debatable to but let's put that aside for a minute because I don't want to get into a line by line on Dalton.

[01:27:50] Speaker 09:
So what if the president said, I don't like this statute and I will not abide by it.

[01:27:55] Speaker 09:
It's that a constitutional separation of powers problem.

[01:27:59] Speaker 04:
If the President is simply saying, I'm not going to comply with the statute because I don't like it and not that it's I have a policy problem with it.

[01:28:06] Speaker 09:
I don't like it.

[01:28:07] Speaker 09:
I don't agree with it.

[01:28:08] Speaker 09:
I won't do it.

[01:28:09] Speaker 09:
Right.

[01:28:09] Speaker 04:
Is that if there's no defense on constitutional grounds of that, then that is an ultra various thing.

[01:28:15] Speaker 04:
So that's also not a separation of powers claim in your view.

[01:28:17] Speaker 04:
It's not a separation of powers claim that can be brought as

[01:28:21] Speaker 04:
an equitable constitutional claim under the Young's timeline.

[01:28:23] Speaker 09:
How do you reconcile that with Inway-Akin County?

[01:28:26] Speaker 09:
And also, I guess, Kendall.

[01:28:28] Speaker 09:
These are cases that say presidents do not have a dispensation power.

[01:28:32] Speaker 09:
They can't pick and choose which statutes they'll execute.

[01:28:35] Speaker 09:
There's authority on this.

[01:28:38] Speaker 09:
How do you reconcile your position with those cases?

[01:28:40] Speaker 04:
The question isn't whether the president has the power to do that.

[01:28:43] Speaker 04:
The question is which right of action applies.

[01:28:46] Speaker 04:
Right, and those were separation powers cases.

[01:28:48] Speaker 04:
Perhaps so I, if I remember correctly those cases were definitely separation of powers.

[01:28:54] Speaker 04:
Well, yes, but they were the remedy sought I believe in those cases was mandamus, which is its own right of action.

[01:29:01] Speaker 04:
We're talking here about whether you have an equitable non statutory claim that can be brought

[01:29:07] Speaker 04:
free and clear of the requirements of non-statutory ultra-various claims.

[01:29:10] Speaker 04:
That's how Dalton is distinguished.

[01:29:12] Speaker 09:
I thought we started this argument by you saying that you're not claiming the authority to shut down agencies in violation of what Congress wants.

[01:29:19] Speaker 09:
Isn't that a concession that that's a problem, a separation of powers problem?

[01:29:23] Speaker 04:
It would be unlawful, for sure, if the executive branch shut down the CFPB without congressional authorization to do that.

[01:29:31] Speaker 04:
But whether or not it's unlawful is a separate question from whether

[01:29:35] Speaker 04:
a cause of action exists to challenge it.

[01:29:38] Speaker 04:
And in this case, which cause of action?

[01:29:40] Speaker 04:
Is it the non-statutory ultra-various cause of action, or is it the non-statutory equitable cause of action for constitutional?

[01:29:46] Speaker 09:
But your reading of Dalton leads you to take the position that a president saying, I will never execute any act of Congress is not a separation of powers problem that can be litigated.

[01:29:58] Speaker 09:
It can be litigated through an ultra-various challenge.

[01:30:01] Speaker 09:
Right, but it cannot be litigated as a separation of powers.

[01:30:04] Speaker 09:
issue.

[01:30:05] Speaker 09:
That is correct.

[01:30:06] Speaker 09:
That is our position, because it sounds like a textbook case of separation of powers.

[01:30:11] Speaker 04:
But it is still one that is premised on the disregard of statutes.

[01:30:15] Speaker 09:
And again, I want to, but if you agree, then that a president can't say, I don't like this particular statute, I disagree with that on policy grounds, I'm not going to do it.

[01:30:24] Speaker 09:
That's unlawful.

[01:30:27] Speaker 09:
A separation of powers problem.

[01:30:29] Speaker 09:
Perhaps we can't litigate it as such, but it is a separation of powers problem.

[01:30:32] Speaker 09:
Yes.

[01:30:33] Speaker 04:
I think it is a species of separation of powers anytime.

[01:30:37] Speaker 04:
Well, under Aiken and under Kendall, it's a separation of powers problem.

[01:30:39] Speaker 04:
Well, it disregards the statute, but the Supreme Court has said, if it's premised on violation of statutes, we have one track.

[01:30:46] Speaker 04:
If it's not, if it's a dispute about the meaning of the Constitution, we have another track.

[01:30:50] Speaker 09:
Yes, although we do have precedents that say that it's a separation of powers problem and has been litigated as a separation of powers problem.

[01:30:58] Speaker 09:
So what is the difference between a president saying, I don't like that statute,

[01:31:03] Speaker 09:
I don't agree with that.

[01:31:04] Speaker 09:
I won't execute it because of policy concerns.

[01:31:07] Speaker 09:
What's the difference between that and a president saying, I don't think we need this agency that Congress has said we need to have, and I'm going to dismantle it.

[01:31:15] Speaker 09:
Isn't that the same thing?

[01:31:16] Speaker 09:
Isn't that another way of saying, I don't like this statute, I'm not going to do it for policy reasons?

[01:31:22] Speaker 04:
Strikes me as the same thing.

[01:31:23] Speaker 04:
Strikes me as a disregard of a statute.

[01:31:27] Speaker 04:
A challenge that you can bring for that on a non-statutory basis is an ultra-various claim, which again,

[01:31:32] Speaker 04:
They have disavowed.

[01:31:33] Speaker 04:
This isn't a question of whether this claim is going to evade review.

[01:31:36] Speaker 04:
It's just how it gets brought.

[01:31:38] Speaker 07:
If they had brought in ultra-virus claim, what would have been your defense?

[01:31:42] Speaker 04:
We would have said that there are adequate alternative remedies here.

[01:31:44] Speaker 04:
There are adequate alternative remedies for the employees through the CSRA scheme, and there are adequate alternative remedies for any other potentially agreed parties who are agreed by the loss of services if the agency closes through the APA.

[01:31:57] Speaker 04:
Through Section 7061.

[01:31:59] Speaker 04:
It would depend if there was final agency action, then it could be under 7062 as well.

[01:32:05] Speaker 04:
But the point is, there are adequate alternative remedies, but the court doesn't need to get into that because they haven't disputed that.

[01:32:12] Speaker 04:
They've abandoned their ultra-virus claim, and they haven't even argued that these other alternative remedies are inadequate for purposes of that analysis.

[01:32:20] Speaker 08:
Let me make sure my colleagues don't have... Just one more.

[01:32:23] Speaker 08:
Back to Judge Millett's hypothetical on final agency action, which

[01:32:29] Speaker 08:
I thought was a hard one in my panel opinion.

[01:32:35] Speaker 08:
So if you do have published in the Federal Register something that purports to is public facing and informally expressed and purports to be a self-executing decision to shut down the agency,

[01:32:59] Speaker 08:
that would be final agency action within the APA, correct?

[01:33:04] Speaker 04:
I think so.

[01:33:05] Speaker 04:
This sounds like the memo that the panel opinion posited.

[01:33:09] Speaker 08:
You're not challenging the panel opinion saying that's final agency action.

[01:33:16] Speaker 08:
And there would be, regardless of your position on channeling the employment plaintiffs, there would surely be plaintiffs withstanding to challenge that.

[01:33:28] Speaker 08:
final agency action through the APA.

[01:33:31] Speaker 04:
Well, we do have some separate arguments about standing.

[01:33:33] Speaker 04:
We don't think any plaintiff here has standing.

[01:33:35] Speaker 04:
But we do accept that that sort of immediately effective, formal, self-executing memo would be final agency action.

[01:33:42] Speaker 08:
And could get set aside, at least set aside relief.

[01:33:47] Speaker 04:
We haven't disputed what you could vacate that action.

[01:33:49] Speaker 04:
It's just a case about vacating the shut down system.

[01:33:53] Speaker 08:
We might have that old fight about whether set aside means what we thought it meant or

[01:33:58] Speaker 08:
whether it means getting a supplied relief, but plaintiff could get relief from that.

[01:34:04] Speaker 04:
Plaintiff with standing could get APA relief under 7062 on that hypothetical number.

[01:34:11] Speaker 00:
Okay.

[01:34:13] Speaker 00:
Thank you, Mr. MacArthur.

[01:34:14] Speaker 00:
If you care to rest your legs, you're welcome to do that.

[01:34:20] Speaker 01:
Ms.

[01:34:20] Speaker 01:
Bennett.

[01:34:23] Speaker 01:
Please proceed when you're ready.

[01:34:25] Speaker 10:
May I please the court, Jennifer Bennett on behalf of the Atterly's.

[01:34:28] Speaker 10:
To this day, and as we just heard, the defendants have never disputed that they have no authority to shut down an agency that Congress created.

[01:34:37] Speaker 10:
In other words, unlike most preliminary injunction appeals, the defendants are not arguing that the conduct that the district court found they engaged in is legal.

[01:34:46] Speaker 10:
Instead, I heard and their briefs make essentially two arguments.

[01:34:51] Speaker 10:
The first is that the district court got it wrong.

[01:34:53] Speaker 10:
that the defendants never tried to shut down the CFPB, but if the CFPB's own chief operating officer testified, that was the defendant's sole witness, the chief operating officer himself testified without the district court's intervention, the agency would be eliminated within 30 days.

[01:35:12] Speaker 10:
That's not clear error.

[01:35:14] Speaker 10:
And the second argument, and the one that they focus on here today, is that even if the district court didn't clearly err, meaning even if the defendants took the undisputably unconstitutional action that the district court found, federal courts have no power to stop them.

[01:35:31] Speaker 10:
According to the defendants, what I just heard is what would have to happen is individual plaintiffs would have to wait until the bureau was eliminated.

[01:35:39] Speaker 10:
They'd then have to somehow sue the non-existent agency

[01:35:43] Speaker 10:
maybe in the MSPB, which doesn't hear claims for most of the plaintiffs at all, neither the APA nor the Constitution nor the Civil Service Reform Act or anything else that I'm aware of requires that feudal exercise.

[01:35:58] Speaker 10:
And I wanna start briefly with the arguments that I heard today that were, that are not really in the briefs that the defendants made so that I can get those out and then hopefully we'll move on to some of the other arguments.

[01:36:09] Speaker 10:
And I'll start with the channeling argument.

[01:36:13] Speaker 10:
So the question for channeling, I heard, you know, the defendants are really focused on remedy.

[01:36:18] Speaker 10:
The question for channeling is the Supreme Court said in Axon is, is this the kind of claim that Congress intended to be channeled to the agency?

[01:36:28] Speaker 10:
So the question here is, is the claim here, the kind of claim that Congress intended to go to an agency that is designed to hear ordinary individual employment disputes?

[01:36:40] Speaker 10:
And here's what the jurisdiction of the MSP is.

[01:36:43] Speaker 10:
It has jurisdiction over an agency employees claims that the agency has violated a merit system principle in other words that the agency has violated the Civil Service Reform Act the principles that govern individual employment actions.

[01:36:56] Speaker 10:
The statute does not provide any jurisdiction for non-employee plaintiffs, and as Judge Pillard pointed out, the only jurisdiction over RIFs at all is regulatory.

[01:37:06] Speaker 10:
It's through an MSPB, I think it's through an OPM regulation governing the MSPB, not statutory.

[01:37:13] Speaker 10:
And so what we'd have to think

[01:37:14] Speaker 10:
is that by saying that there is an agency that can hear individual employment actions challenging merit system principles that Congress intended to channel fundamental questions about the separation of powers brought not only by employees or their representatives, but also brought by all sorts of other plaintiffs who cannot possibly go to that agency, whether Congress meant to channel those claims to that agency.

[01:37:40] Speaker 13:
So essentially those claims would be mutually exclusive.

[01:37:43] Speaker 13:
I'm sorry I didn't hear these claims would be mutually exclusive you've got the side of the employees who've been ripped or perhaps consumers who.

[01:37:51] Speaker 13:
couldn't continue on with their services that they have you know other remedies that they could go to but we're not talking about that we're talking about the entire shutdown of an agency.

[01:38:00] Speaker 13:
that has failed in its statutory mandate?

[01:38:03] Speaker 10:
I think that's exactly right, which is to say, you know, the claim here is not I shouldn't have been laid off or even my position shouldn't have been eliminated.

[01:38:12] Speaker 10:
It's that this agency should not have been shut down.

[01:38:15] Speaker 10:
And one of the remedies, at least preliminarily, was to enjoin a RIF so that the agency would still exist at the end of the case.

[01:38:23] Speaker 10:
But the claim isn't that this riff violated the riff policies, the claim is exactly that that the agency would be shut down and I heard the defendants admit that that claim can proceed in court.

[01:38:35] Speaker 10:
And so what you would have, then, is the same claim proceeding in front of the MSPB, which, by the way, doesn't think it has the power to hear constitutional claims, and in front of federal court.

[01:38:46] Speaker 10:
And that's exactly the problem that Elgin said we're trying to avoid.

[01:38:51] Speaker 10:
We're trying to avoid the reason we channel claims often is to try to avoid having the same claim being heard in two different fora.

[01:38:59] Speaker 10:
And that's exactly what would happen here.

[01:39:01] Speaker 10:
Also, can I?

[01:39:04] Speaker 08:
What's your understanding of Fausto and Elgin on the one hand and Axon Thunder Basin on the other?

[01:39:15] Speaker 08:
Your argument has a lot of force if you just take a three-part test.

[01:39:23] Speaker 08:
It has a bunch of factors.

[01:39:25] Speaker 08:
You can look to availability of relief and things like that.

[01:39:30] Speaker 08:
But if you look at the CSRA cases,

[01:39:33] Speaker 08:
Fausto says it doesn't matter if you get no relief.

[01:39:37] Speaker 08:
Elgin says it doesn't matter if it's a constitutional claim outside the heartland of MSPB expertise.

[01:39:46] Speaker 08:
Seems like those cases have a much harder edge than would be suggested just by Thunder Basin.

[01:39:53] Speaker 10:
Yeah, so let me take them each in turn and then talk about Axon.

[01:39:56] Speaker 10:
So Fausto is a case asserting a right under the Civil Service Reform Act.

[01:40:01] Speaker 10:
And what the court said is, yes, you have that right, but Congress didn't make it judicially enforceable.

[01:40:07] Speaker 10:
And again, it was brought by an individual employee.

[01:40:09] Speaker 10:
That's quite different from a fundamental challenge to the executive trying to restructure the bureaucracy.

[01:40:15] Speaker 10:
Similarly, in Elgin, it was a claim brought by an individual challenging their particular termination.

[01:40:24] Speaker 10:
And there are a couple of things that the court said in Elgin that I think are relevant here.

[01:40:29] Speaker 10:
The first is that it was just about terminations.

[01:40:31] Speaker 10:
There was no claim about restructuring the government separation of powers.

[01:40:35] Speaker 10:
And the court also says it could have been resolved potentially on other grounds.

[01:40:39] Speaker 10:
There are no other grounds to resolve this claim.

[01:40:41] Speaker 08:
The other thing that the court said in Elgin is- Sorry, I just don't recall that piece of, what's the other ground and how does that play out?

[01:40:52] Speaker 10:
Sorry, I'm not sure.

[01:40:52] Speaker 10:
Let me, I'll try to answer that question.

[01:40:54] Speaker 10:
If I don't give you the answer you want, let me know.

[01:40:56] Speaker 10:
So I think there are a couple of grounds in Elgin that are different.

[01:40:59] Speaker 10:
One is it's an individual employee challenging their particular termination.

[01:41:03] Speaker 10:
The second is what the court said is there are going to be, there may be other ways

[01:41:09] Speaker 10:
within the agency's expertise to resolve this claim.

[01:41:13] Speaker 08:
Within the MSPB.

[01:41:14] Speaker 10:
Within the MSPB's expertise to resolve this claim.

[01:41:17] Speaker 10:
There are no other ways to resolve the separation of powers claim here and in fact the defendants concede it will go forward in court no matter what.

[01:41:24] Speaker 10:
And that's related to the third aspect of Elgin that's different here is Elgin said we're worried about having claims about the same individual employee go forth in two different fora and that is what would happen if you channeled here as opposed to Elgin where it would happen if you didn't channel and then to go to Axon.

[01:41:45] Speaker 10:
Axon cites these cases.

[01:41:47] Speaker 10:
Axon cites CSRA cases, and Axon says they're different.

[01:41:52] Speaker 10:
And the reason they're different is because the claim in Axon goes to the structure or the very existence of an agency.

[01:41:59] Speaker 10:
And that's exactly what's happening here.

[01:42:01] Speaker 10:
This is a fundamental separation of powers claim about the structure or the very existence of an agency.

[01:42:08] Speaker 10:
And I'll note there was some discussion of NIH.

[01:42:11] Speaker 10:
I think the more relevant emergency docket order here is Trump versus the American Federation of Government Employees.

[01:42:17] Speaker 10:
And that is a case where there was a challenge to an executive order that led to some rifts and the Supreme Court did stay the preliminary injunction in that case, but it stayed the preliminary injunction not on the basis of channeling

[01:42:31] Speaker 10:
But on the merits saying we think this executive order, which is very different from what's at issue here but we think this executive order they're not likely to succeed on the fact that it's unlawful.

[01:42:41] Speaker 10:
And which means that the court seemed to believe that it would have jurisdiction and otherwise, in other words that the king would not be channeled.

[01:42:48] Speaker 10:
And given all of the activity on the emergency docket the Supreme Court has not once

[01:42:52] Speaker 10:
taken up any of the channeling, the CSRA channeling challenges, and there have been several.

[01:42:58] Speaker 11:
Ms.

[01:42:59] Speaker 11:
Bennett, if we want to assume for a moment that the government is correct that the employee claims here, the employee plaintiffs, their claims have to be channeled through the CSRA.

[01:43:11] Speaker 11:
In your view, is there any other plaintiff in the case whose claims could support injunctive relief that includes enjoining the risk?

[01:43:22] Speaker 11:
Yes, and what would be that connection under CASA as to the specific injuries that have been claimed and how would they justify injunctive relief that requires the reinstatement of employees?

[01:43:34] Speaker 10:
Sure, so I think every other plaintiff would have standing to get relief that says that the at least preliminary relief that says you can't conduct risk right now you've got you've offered no lawful plan to this day, the defendants have offered no lawful plan to conduct a riff that would not shut down the agency.

[01:43:52] Speaker 10:
The only evidence we have in the record is that the defendants intend to use a riff in an effort to shut down the agency and every other plaintiff is harmed.

[01:44:03] Speaker 11:
Let's focus on pick a plaintiff though and explain why their claim would require all the employees to remain in place.

[01:44:13] Speaker 11:
Sure.

[01:44:13] Speaker 11:
I mean, you know, there has to be a direct connection under CASA between those things.

[01:44:19] Speaker 10:
Sure, and I want to go back to CASA, but take the National Consumer Law Center, for example.

[01:44:24] Speaker 10:
The National Consumer Law Center both provides trainings to and sells treatises to the CFPB, but it also relies very heavily in fulfilling a commission on the resources the CFPB provides.

[01:44:38] Speaker 10:
It relies on the reports that the CFPB provides about the credit card markets about debt collection about consumer complaints, and it uses those reports to provide information to consumer advocates and let me explain why, why this preliminary injunction how that's tied I see on your face the question.

[01:44:56] Speaker 10:
So all of those reports, it is not a matter to issue any one of those reports or to keep the Consumer Complaint Database functioning, which both NCLC relies on and the Virginia Poverty Law Center rely on.

[01:45:10] Speaker 10:
It's not just a matter of three or four or any number of identifiable people who can do that.

[01:45:17] Speaker 10:
The effort to keep, for example, the Consumer Complaint Database functioning to produce these reports involves employees across the agency.

[01:45:25] Speaker 10:
So it involves not just the consumer response department, it involves people in the IT department, essentially the agency.

[01:45:32] Speaker 11:
So if an organization is harmed by the CFPB's failure to produce certain reports that they rely on, why isn't the injunctive relief that matches that saying, hey, CFPB, provide the necessary reports that are required by law, assuming that they are required by law?

[01:45:52] Speaker 11:
I mean, how does it

[01:45:54] Speaker 11:
support, you can't fire a single employee while this litigation goes forward.

[01:46:00] Speaker 11:
I don't see the connection there.

[01:46:02] Speaker 11:
I mean, yes, maybe reports require not a particular employee to be reinstated, but there can be injunctive relief that just directs the agency to provide relief to the plaintiff based on the plaintiff's alleged injury.

[01:46:17] Speaker 10:
Sure, so I think there, I want to say a couple things.

[01:46:19] Speaker 10:
First, I'll note that the argument you just made is found nowhere in the defendant's brief, except as an aside in their reply brief.

[01:46:26] Speaker 10:
So to the extent we're talking about an argument about a scope of the injunction argument, which I think is not jurisdictional, I think that argument has been waived, but I'll answer the question.

[01:46:35] Speaker 10:
Well, we can't support an injunction that has no basis in

[01:46:39] Speaker 11:
you know, law or equity or remedial principles articulated by the Supreme Court.

[01:46:44] Speaker 11:
So I wouldn't rely on forfeiture on that.

[01:46:46] Speaker 10:
To answer the question, though, I think there are a couple of answers to that question.

[01:46:51] Speaker 10:
So one is there are a number of plaintiffs here.

[01:46:53] Speaker 10:
They are all harmed in different ways.

[01:46:55] Speaker 10:
Virginia Poverty Law Center relies on the Consumer Complaint Database, the National Consumer Law Center.

[01:47:00] Speaker 10:
There are pages of one of the injuries to the rest.

[01:47:05] Speaker 10:
Sure.

[01:47:06] Speaker 10:
So without employees, the CFPB can't do anything.

[01:47:10] Speaker 10:
And then the question is, at a preliminary injunction stage, did the district court abuse its discretion in saying, you have only used RIFs to try to close the agency?

[01:47:20] Speaker 10:
And rather than having months of evidentiary proceedings and extended remedial proceedings upfront, where we try to figure out how much of the agency do you need to preserve and exactly who do you need to preserve to provide X, Y, and Z report,

[01:47:35] Speaker 10:
We're going to say, you can't, I'm going to restore the status quo.

[01:47:38] Speaker 10:
I'm going to undo the thing you did to terminate the agency.

[01:47:42] Speaker 10:
So the idea is we're restore the nationwide status quo.

[01:47:47] Speaker 10:
The act that I, the answer to that is I think yes, because the act that injured the plaintiffs.

[01:47:53] Speaker 11:
That's the position that was taken in dissent in Casa.

[01:47:56] Speaker 11:
So you can have an injunction restoring the nationwide status quo.

[01:47:59] Speaker 11:
And the majority said those injunctions don't work.

[01:48:03] Speaker 11:
because they don't match the injuries of a plaintiff to the injunctive relief.

[01:48:07] Speaker 11:
So to the extent you're asking for what the dissent in CASA said was permissible,

[01:48:14] Speaker 11:
Where does that leave the plaintiffs on this injunction?

[01:48:16] Speaker 10:
So let me explain why CASA is quite different here.

[01:48:20] Speaker 10:
So the first is the question in CASA was, can you enjoin this policy essentially as to just the plaintiffs?

[01:48:28] Speaker 10:
And if so, does that provide them complete relief?

[01:48:30] Speaker 10:
It is not possible to say, don't shut down the agency as to the Virginia Poverty Law Center.

[01:48:35] Speaker 10:
It's not and CASA explicitly distinguishes indivisible relief and shutting down an agency is indivisible relief.

[01:48:43] Speaker 10:
So that's one.

[01:48:44] Speaker 10:
The second thing that CASA says is we're not talking about the APA and the APA has its own, as Judge Pillard pointed out, its own preliminary relief provision.

[01:48:57] Speaker 10:
That's 5 USC 705.

[01:48:59] Speaker 10:
and it explicitly authorizes relief to preserve the status quo.

[01:49:02] Speaker 11:
And the third thing- That wasn't the basis for the preliminary injunction here.

[01:49:06] Speaker 11:
Can we uphold the preliminary junction under APA section 705?

[01:49:12] Speaker 10:
So I'd have to go back and see if the judge cited 705 specifically, but the judge certainly found that we were likely to succeed on an APA violation.

[01:49:21] Speaker 10:
And I think we would assume that- And then entered equitable injunctive relief.

[01:49:26] Speaker 10:
I mean, I think that is equitable under the APA.

[01:49:29] Speaker 10:
Can you just pull out remedies from the APA for, I mean.

[01:49:33] Speaker 10:
So to the extent that you think that what the judge did is found a likelihood of success on an APA violation, but didn't rely on the provisions of the APA that allow her to provide relief, the court affirms on any basis in the records, the court could certainly say this is certainly permissible under the APA, or if what the court wanted to do is to say- I think this replaced an equitable preliminary injunction with a specific remedy under the APA.

[01:49:56] Speaker 11:
I think we can just swap that in.

[01:50:00] Speaker 10:
I think the answer to that is yes, and it's well established this court can affirm on any basis.

[01:50:04] Speaker 10:
But if this court wants to remand and say to the district court, would you enter this injunction under the APA and give the district court a chance to do that?

[01:50:11] Speaker 10:
I think we wouldn't.

[01:50:12] Speaker 11:
I'm sorry.

[01:50:13] Speaker 11:
Affirming on any basis means taking a different legal round to support what the district court did.

[01:50:18] Speaker 11:
I'm not aware of any authority by which we can impose a different remedy entirely.

[01:50:26] Speaker 10:
I think the remedy is the same.

[01:50:28] Speaker 10:
The question is, I think what you're saying is I'm worried after CASA that the Judiciary Act is not a sufficient basis for this preliminary injunction.

[01:50:38] Speaker 10:
But if we think the APA, which the district court found there's a likelihood of success on, is a sufficient basis.

[01:50:44] Speaker 10:
But the district court, and again, I'd have to go back to the opinion to see whether she called it out or the district court called it out or not.

[01:50:50] Speaker 10:
But we think that the district court should have

[01:50:52] Speaker 10:
explicitly mentioned the APA in the opinion, but didn't.

[01:50:55] Speaker 10:
I think that is certainly within a ground on which this court could affirm.

[01:51:00] Speaker 02:
One thing I'm trying to figure out is on this tying the remedy to particular plaintiffs, and you talked some about it.

[01:51:17] Speaker 02:
So to the extent there's reports, presumably it wouldn't satisfy

[01:51:22] Speaker 02:
the statute to just issue, wouldn't satisfy the statute for the shell of an agency to issue a report that says, here's our report on X and it's empty.

[01:51:31] Speaker 02:
We got nothing and they put that report out.

[01:51:35] Speaker 02:
And so it takes some number of employees or contractors to collect information across the agency.

[01:51:45] Speaker 02:
But I don't have a sense of,

[01:51:49] Speaker 02:
I think that was your point, if I understood it right, that you need to have other things operating to get the information that's needed for the reports.

[01:51:57] Speaker 02:
One, can you spell that out for me a little bit more to give me a sense of what's really required, as opposed to desired, to produce these reports?

[01:52:08] Speaker 02:
And second, is there a similar concern with this hotline?

[01:52:12] Speaker 02:
Because I know there were worries that they said, oh, we have to have a hotline.

[01:52:15] Speaker 02:
So they hook up an answering machine and it just fills up and no one's responding to these.

[01:52:21] Speaker 02:
Does that require cross office or across the agency information as well?

[01:52:28] Speaker 02:
To help understand better why this is indivisible when in some ways it sounds like it's not.

[01:52:35] Speaker 10:
Sure, so there's some information in the record about this is a docket 127 and the one.

[01:52:43] Speaker 10:
some of that information comes from the panel had exactly this thought that you're asking about, which is, what if we just limit the RIF provision, which is the thing that the defendants seem to care about, to say, you can RIF anybody who's not required to perform a statutory obligation.

[01:53:05] Speaker 10:
And what happened when the panel said that is the defendants tried to RIF

[01:53:10] Speaker 10:
virtually the entire agency again.

[01:53:12] Speaker 10:
And the record, um, the chief operating officer and the chief information officer and leaders across the agency, uh, submitted declaration saying, uh, that that would, the agency would be eliminated within 60 days.

[01:53:25] Speaker 10:
So, so to, so it is quite, I take that point.

[01:53:29] Speaker 02:
That's, that's been well covered in the briefs and obviously in the record in this case before us, I'm trying to ask more particularized question of understanding how

[01:53:39] Speaker 02:
how or why you claim this is indivisible.

[01:53:43] Speaker 02:
So what makes it indivisible, what's needed to prepare reports, what's needed for hotline, what's needed for aiding veterans or disaster victims.

[01:53:59] Speaker 02:
Just have a better understanding here of that.

[01:54:03] Speaker 10:
Sure, so let's take for example the consumer response database with the Virginia Poverty Law Center relies on the National Consumer Law Center relies on that requires.

[01:54:14] Speaker 10:
I think the record is, you know, hundreds of employees to function, which is, you know, keep the database operating, answer their contractors who answer the hotline.

[01:54:25] Speaker 10:
There are people who deal with complaints.

[01:54:27] Speaker 10:
There are people who deal with emergency complaints.

[01:54:29] Speaker 10:
There's a large number of people and there's a memo in the record about this is a large number of people that are required to keep that online.

[01:54:37] Speaker 10:
And it's not just the consumer response team that's required.

[01:54:41] Speaker 10:
So if you look at JA 1245, you'll see that they depend on the technology and innovation team.

[01:54:47] Speaker 10:
And that's several people.

[01:54:48] Speaker 10:
I'm not sure exactly how many people, to be honest, but it's several people who ensure that the technology functions.

[01:54:55] Speaker 10:
They also depend on the contract and procurement department.

[01:54:57] Speaker 10:
That's at docket 127.6, because there are a bunch of contracts required for all of the software to keep the database running.

[01:55:05] Speaker 10:
They depend on the research monitoring and regulations department to get people into the system, and they depend on the population's offices, the office of, for example, service members affairs to deal with reports based on consumers were covered by those offices.

[01:55:21] Speaker 10:
So even just if you take one.

[01:55:25] Speaker 10:
function of the CFPB, you end up with reach that is across the agency, even just to make it functional.

[01:55:33] Speaker 10:
And that's true if you take it, you know, any particular function that you can think of of the CFPB, that's still true.

[01:55:38] Speaker 10:
And that's because the Bureau is so intertwined.

[01:55:40] Speaker 03:
But can we go below what the last administration had when the new one took over?

[01:55:46] Speaker 03:
I mean, the difficulty is, you know, as I think you mentioned, it could consume a lot of litigation, a lot of time,

[01:55:56] Speaker 03:
when the administration would really like to be getting on with its plans, if there's a lot of fighting over the preliminary relief, but at the same time, you know, to lock them in to the max from their perspective, you know, from where they started, feels like it's also wasting the time that this elected president has.

[01:56:19] Speaker 03:
So I guess my question for you and also the flip side of my question for Mr. Parther is,

[01:56:26] Speaker 03:
What is the least that you think your clients could accept that, like, what went back to the April 11th partial stay of the district court's preliminary relief that rolled back and said, you know, look, if you do an individualized determination that these rifts or these contract

[01:56:55] Speaker 03:
Terminations are consistent with the agency continue to fulfill a session to review these and you present that that you can do it as long as not arbitrary and you know the court can say fine.

[01:57:12] Speaker 03:
fine with you?

[01:57:13] Speaker 10:
In other words, the question is if instead of the order that was entered, then it essentially asked the government to come into court first with a lawful plan or an assertively lawful plan to conduct a riff.

[01:57:25] Speaker 10:
And then the court can say, OK, I will modify the injunction to allow you to conduct the riff.

[01:57:29] Speaker 10:
What would be wrong with that?

[01:57:30] Speaker 10:
Is that really essentially the question?

[01:57:32] Speaker 03:
Well, that's one version.

[01:57:34] Speaker 03:
Another version is they can do it without getting

[01:57:38] Speaker 03:
advance clearance from the court as long as they act.

[01:57:40] Speaker 03:
I mean, a lot of what the government does in general is subject to the APA.

[01:57:45] Speaker 03:
They should be whatever they're doing, you know, having reasoning behind their final actions and

[01:57:52] Speaker 03:
as long as they had that in their pocket.

[01:57:54] Speaker 03:
And if the district court said, whoa, that looks crazy.

[01:57:56] Speaker 03:
Or the plaintiff said, whoa, that looks like you're going back down the road of taking down the agency.

[01:58:02] Speaker 03:
They would say, no, no, here it is.

[01:58:03] Speaker 03:
So maybe they wouldn't have to get advance permission.

[01:58:06] Speaker 03:
But the assumption would be that they'd have some explanation of there's 18 statutes.

[01:58:14] Speaker 03:
How are they planning to enforce them?

[01:58:15] Speaker 03:
There are obligations to supervise.

[01:58:18] Speaker 03:
What's their plan?

[01:58:19] Speaker 03:
I didn't see that the last time around.

[01:58:22] Speaker 03:
But if the understanding was that they have to do that, is there any reason why we couldn't go back to the partially stayed Mr. Court order that we embarked on on April 11th?

[01:58:39] Speaker 10:
Yeah, I think what happened after the April 11th order shows why the district court didn't abuse its discretion in entering that order in the first place.

[01:58:46] Speaker 10:
And I think it is exactly this distinction between

[01:58:50] Speaker 10:
allowing the government to do something and then having to have an enforcement proceeding afterward.

[01:58:54] Speaker 10:
What happened there is the government said, okay, we complied.

[01:58:57] Speaker 10:
We had a particularized assessment and there wasn't ultimately an evidentiary hearing because the panel restored the initial preliminary injunction, but immediately, essentially, there was an email from the chief operating officer and the chief information officer that said,

[01:59:14] Speaker 10:
They say they conducted a preliminary particularized assessment, but what in fact happened is this agency is going to be eliminated within 60 days there were declarations from across the agency leaders from across the agency saying.

[01:59:27] Speaker 10:
Nobody asked us what's required to perform our statutory obligations and it would be impossible.

[01:59:33] Speaker 10:
And so the you know I think what that shows is that the district court in the district has wide discretion in determining a scope of a preliminary injunction and I think the decision that the district court made is I am being I am faced with defendants who have taken action that they concede is unlawful.

[01:59:49] Speaker 10:
They submitted initially declarations to the court that the declarants themselves later conceded were untrue.

[01:59:56] Speaker 03:
The district court found- They want everything and they want nothing.

[02:00:00] Speaker 03:
They want at most, and they don't even think that this is appropriate, they want a set-aside order.

[02:00:06] Speaker 03:
We're just setting aside the shutdown.

[02:00:08] Speaker 03:
Everything else is open road and you want the full restoration of the Bureau to its status quo ante.

[02:00:19] Speaker 10:
I do think that the preliminary injunction that restores the bureau to the status quo ante is correct.

[02:00:24] Speaker 10:
That's the purpose of a preliminary injunction.

[02:00:26] Speaker 10:
And then the question is, what do we continue to preserve through the lawsuit?

[02:00:30] Speaker 10:
And the district court was very explicit.

[02:00:33] Speaker 10:
The district court was concerned that the defendants had never presented.

[02:00:38] Speaker 10:
And to this day, we pointed this out again in our en banc response brief, you haven't presented a lawful plan.

[02:00:45] Speaker 10:
To conduct a riff by law, you have to have a plan.

[02:00:47] Speaker 10:
And they still haven't presented any lawful plan and the district was really explicit if you have a lawful plan come to me, I will modify the injunction.

[02:00:55] Speaker 10:
And so I don't know that having this injunction in place prohibits you genuinely as a practical matter prohibits the government from conducting a lawful riff what it prohibits the government from doing is conducting an unlawful riff.

[02:01:10] Speaker 10:
And potentially then claiming it that it is lawful and it and it ensures that what we're not doing is either spending a lot of time up front and we should just be litigating the lawsuit having remedies proceedings to try to finally tune exactly what would be necessary.

[02:01:25] Speaker 10:
Or having enforcement proceedings all the time, where the defendant say okay be with 99% of the agency.

[02:01:31] Speaker 10:
but we're claiming that it can pursue its statutory functions.

[02:01:34] Speaker 10:
Okay, you didn't like that.

[02:01:35] Speaker 10:
We riffed 98% of the agency.

[02:01:37] Speaker 02:
All right, so in this case, the district court definitely was having to move very, very fast.

[02:01:42] Speaker 02:
And there's record stuff, at least one view of the record that shows the agency was trying to, or agency officials were trying to act before the district court hearing.

[02:01:51] Speaker 02:
So the district court had to react very, very quickly.

[02:01:54] Speaker 02:
And so,

[02:02:00] Speaker 02:
In your view, so if at that point in the district where you don't have time to have long hearings on the interconnection of everything that's needed to produce this report or that report or run this hotline or provide this service.

[02:02:15] Speaker 02:
And so take it what you're saying is on such an emergency basis, things are moving very fast.

[02:02:24] Speaker 02:
According to the witness agency is gonna be gone in 30 or 60 days.

[02:02:28] Speaker 02:
the district court could enter sort of a status quo injunction consistent with costs.

[02:02:34] Speaker 02:
I could enter a status quo injunction on the ground that at this fast look that I'm forced to do, it's indivisible, but then invite the defendant to come show, or maybe the burden's on you to come forward and show

[02:02:56] Speaker 02:
now that we've frozen the status quo, that this truly is indivisible.

[02:03:01] Speaker 02:
It's not clear to me, I'm not quite sure what's meant by what counts as indivisible and what doesn't.

[02:03:09] Speaker 02:
There's certainly some interconnected stuff here, maybe some other things aren't, but some level district courts have to have the ability to preserve their ability to cure the case before the agency disappears.

[02:03:24] Speaker 02:
But should the district court of that after that have I know you don't want to spend all your time litigating this, but is there whose burden is it then that point to show.

[02:03:32] Speaker 02:
That was the right scope of relief was indivisible for them to come forward and show no no no no no.

[02:03:42] Speaker 02:
It can be compartmentalized or narrowed.

[02:03:46] Speaker 02:
What case law tells us whose burden it is at that point after everything's been frozen?

[02:03:52] Speaker 10:
Sure.

[02:03:52] Speaker 10:
So I think this court's decision in JD versus Azar is helpful here.

[02:03:57] Speaker 10:
And it's quite a similar situation, actually, which is to say it was clear that there needed to be some relief.

[02:04:05] Speaker 10:
And there were difficult questions that might go to exactly what the scope of the preliminary relief needed to be.

[02:04:12] Speaker 10:
which is to say there might have been some situations in which the government could have done some things lawfully that were prohibited by the preliminary injunction.

[02:04:21] Speaker 10:
And what the court said, what this court said here is, look, the government undertook a blunt action.

[02:04:28] Speaker 10:
Line drawing would require a complex inquiry.

[02:04:31] Speaker 10:
So instead of getting to the merits, we're spending all of this time trying to figure out upfront the line drawing question.

[02:04:37] Speaker 10:
And the government refused to identify any workable alternative.

[02:04:41] Speaker 10:
All they said is,

[02:04:42] Speaker 10:
Well, you know, we'd like to do maybe some hypothetically legal things, but they didn't identify any of them.

[02:04:48] Speaker 10:
And what they said, it's not our burden.

[02:04:50] Speaker 10:
And I guess that's my question to you.

[02:04:51] Speaker 02:
Right.

[02:04:51] Speaker 02:
And so what burden is it?

[02:04:53] Speaker 02:
Sure.

[02:04:53] Speaker 02:
Again, let the district court freeze things, at least for some period of time.

[02:04:57] Speaker 02:
But what happens then?

[02:04:59] Speaker 02:
So is there a further obligation on the district court?

[02:05:01] Speaker 02:
Or does the burden actually shift to the now enjoying party to come forward and reconsider or modify?

[02:05:10] Speaker 10:
I think once it is, once the plaintiff has met their burden to show that this injunction, this preliminary relief is necessary, which is what the district court found here.

[02:05:20] Speaker 10:
And I'll note that that includes things like workability, administrability, not engaging in complicated remedy procedures upfront.

[02:05:27] Speaker 10:
Once the plaintiff has met their burden to come forward and show that, then a preliminary injunction is a proper exercise.

[02:05:34] Speaker 02:
I know, but I guess my question is,

[02:05:40] Speaker 02:
Assume you made a showing for this immediate relief because this is complicated.

[02:05:45] Speaker 02:
And we had the district court had to do something very fast to just stop the shutdown in its view, as it found.

[02:05:53] Speaker 02:
Stop that shutdown.

[02:05:55] Speaker 02:
And if it didn't stop that, the case is going to be over before it was over.

[02:06:00] Speaker 02:
But having made that showing that we need this quick immediate relief, is that

[02:06:07] Speaker 02:
sufficient to sustain a PI for the entire time a case is litigated in a post-CASA world, or once everyone can catch their breath, just one of the two parties have an obligation to demonstrate that it couldn't be tailored in the way CASA talks about it, that it is truly indivisible.

[02:06:38] Speaker 10:
So, I think once the preliminary injunction is entered and once it's shown that it's necessary which is what happened here and I'll note there was initially a consent order, but the district court put in place, and that the defendants agreed to to avoid TRO proceeding so that the findings of the district court entered were on.

[02:06:56] Speaker 10:
for after a two day evidentiary hearing once and the district court found that this was necessary to preserve the status quo and to prevent harm through the course of the litigation.

[02:07:05] Speaker 10:
Once the district court enters that finding, I don't think CASA changes the ordinary law that if you want to modify that finding, you then come in and move to modify.

[02:07:12] Speaker 10:
And I think in this case, especially the district court was very open to that the district court said if you ever have a view of a lawful plan, come in and show it to me, and the government never did to this day, the government still has not said we have a lawful plan to conduct risks, all it says is hypothetically we might like to do that.

[02:07:31] Speaker 10:
It's not an abuse of discretion to say.

[02:07:34] Speaker 10:
you know, when I entered an injunction because I think it's necessary to prevent harm and the defendant hasn't offered any identifiable lawful way in which that harms the defendant, but that injunction is necessary, especially given the workability concerns in this case.

[02:07:53] Speaker 10:
You know, the other option again is the one we, you know, there are a couple other options we've talked about.

[02:07:57] Speaker 10:
One is

[02:07:58] Speaker 10:
Essentially, a follow the law injunction don't shut down the CFPB, which would not have any specifics.

[02:08:04] Speaker 10:
Another second is what the panel tried and that ended up with essentially immediately trying to shut down the CFPB and then you have what's here, which is, let's get to the case, let's figure it out.

[02:08:17] Speaker 10:
And I think this case could proceed quite quickly given the strong record in this case.

[02:08:23] Speaker 10:
Let's figure it out.

[02:08:23] Speaker 10:
And then we'll have a remedies proceeding pretty quickly.

[02:08:26] Speaker 10:
And then we can tailor final relief.

[02:08:28] Speaker 10:
And hopefully the government would be more willing to engage in that process than it was upfront when it was hoping to have.

[02:08:35] Speaker 10:
It didn't want to tailor the injunction because it wanted to be able to stand up here and say, it's too broad.

[02:08:40] Speaker 10:
So it didn't want to help tailor the injunction.

[02:08:41] Speaker 10:
Hopefully that would be different in a remedies proceeding.

[02:08:44] Speaker 01:
Is that because a few times you've

[02:08:47] Speaker 01:
You've kind of caveated your remarks about the relief by saying at least preliminarily preliminarily and is that what you're getting at that.

[02:08:55] Speaker 01:
Yeah, that that's one thing to do for the interim period while the litigation is pending but that doesn't speak to what would happen once the merits were gotten to.

[02:09:04] Speaker 10:
I think that's exactly right.

[02:09:05] Speaker 10:
And that's because, you know, what the Supreme Court and what this court has said is part of when you think about what's necessary for an injunction, one consideration is workability, it's administrability, and the way that applies in a preliminary injunction posture can be a little different because, as Judge Malait you say, it's a stopgap.

[02:09:22] Speaker 10:
It's not gonna be in place forever.

[02:09:24] Speaker 10:
And the point is to try to get to the end sooner, and then you can have remedies proceedings where you figure out what is gonna happen in the end.

[02:09:32] Speaker 11:
Is workability an exception to CASA's requirement that there be party-specific relief?

[02:09:38] Speaker 11:
No, it's not.

[02:09:39] Speaker 11:
At the preliminary stage, if a narrower, if a broader injunction just sort of holds everything in place, that's an exception to party-specific relief?

[02:09:51] Speaker 11:
Like keeping the agency frozen exactly as it was before the last presidential election, that's

[02:10:00] Speaker 11:
because that's more workable than you can avoid the party specific questions.

[02:10:05] Speaker 10:
So I want to make two points on that.

[02:10:06] Speaker 10:
The first is workability is not an exception to CASA.

[02:10:10] Speaker 10:
CASA makes really clear when we're talking about an injunction, preliminary or otherwise, the scope of the injunction is tailored to what's necessary to provide complete relief and workability has always been understood as a factor of parties.

[02:10:23] Speaker 10:
Sure, agreed.

[02:10:26] Speaker 10:
And workability has always been understood as part of what you consider when you figure out whether a preliminary injunction is necessary.

[02:10:34] Speaker 10:
The second is I want to make clear this preliminary injunction does not freeze the agency.

[02:10:40] Speaker 10:
what it was in the Biden administration.

[02:10:42] Speaker 10:
The preliminary injunction, in fact, says nothing at all about any of the policy decisions that the agency can make.

[02:10:48] Speaker 10:
It also allows the agency to terminate any of its contracts.

[02:10:52] Speaker 10:
It just prevents them from finalizing it such that it can't be done at the end.

[02:10:56] Speaker 10:
And it allows the agency to fire anyone it wants for cause.

[02:10:59] Speaker 10:
So the district court tried very hard to come up with as narrow of a preliminary injunction as it could that would

[02:11:08] Speaker 10:
ensure that the status quo with respect to the parties was preserved through the course of the litigation without having to mire it in constant enforcement proceedings.

[02:11:18] Speaker 07:
Can I just see if I can clarify something?

[02:11:21] Speaker 07:
I mean, at some point, you know, after the statute creating the agency was passed, you know, the executive stood up the CFPB.

[02:11:35] Speaker 07:
And it seems like when I

[02:11:38] Speaker 07:
understand your friend on the other side saying is that, you know, it could be stood up again.

[02:11:48] Speaker 07:
So help me understand why the court has to take action to prevent the shutdown of the agency because that is in and of itself irreparable

[02:12:05] Speaker 07:
Why can't you put that together?

[02:12:09] Speaker 07:
Why can't the agency just be at the end of the litigation?

[02:12:16] Speaker 07:
Again, help me understand that.

[02:12:21] Speaker 10:
Sure.

[02:12:22] Speaker 10:
So I'll note that the defendant's only witness in this case said the harm would be irreparable.

[02:12:28] Speaker 10:
But let me tell you why.

[02:12:29] Speaker 10:
It is not impossible, of course, to build an agency.

[02:12:33] Speaker 10:
When Congress passed the Dodd-Frank Act, it took a year, even between just passing the act and for the agency even starting to exist.

[02:12:40] Speaker 10:
And then it took longer after that for the agency to actually be able to start fulfilling its functions.

[02:12:45] Speaker 10:
So it's not that you could never build an agency.

[02:12:47] Speaker 10:
Of course, you can build an agency.

[02:12:49] Speaker 10:
But it would take a very long time to do it.

[02:12:51] Speaker 10:
And in the interim, what you would have is consumers not being able to use the consumer complaint database, which means that they would be have things like foreclosures happening to them with nobody to help, they would be unable to get their

[02:13:06] Speaker 10:
You know car loans because they have inaccurate credit reporting there's a host of things that would happen in the interim of a year or more to stand back up this agency, because when you end it you eliminate all of the offices so you have to create all of the offices again you eliminate all the contracts the procurement process takes six months to a year or more.

[02:13:25] Speaker 10:
You have to build it up from scratch.

[02:13:26] Speaker 10:
And that takes a very long time.

[02:13:28] Speaker 10:
And what Congress did is it transferred a lot of functions from other agencies to the CFPB.

[02:13:35] Speaker 10:
And those functions are not being performed by anybody else now.

[02:13:39] Speaker 10:
So if the CFPB ends, as the Supreme Court recognized in Salo Law,

[02:13:44] Speaker 10:
you would have a very substantial disruption to the economy and to the financial markets in the interim.

[02:13:51] Speaker 10:
And so the problem isn't that you can't ever stand up an agency.

[02:13:54] Speaker 10:
The problem is there are a number of functions that the CFPB is uniquely performing right now that just nobody would be performing at all if it disappeared.

[02:14:02] Speaker 10:
And nobody would be performing them for a year or two years.

[02:14:06] Speaker 10:
And that's really the problem.

[02:14:10] Speaker 10:
So if I can move to, unless there are further questions on the scope of relief, I want to just quickly touch on the APA.

[02:14:20] Speaker 10:
I realize, actually, I realize I have well exceeded my time.

[02:14:24] Speaker 00:
If you want to make a quick point about the APA, you can.

[02:14:28] Speaker 10:
I think unless the court has questions, I'm happy to do that if the court has questions, but unless the court

[02:14:33] Speaker 13:
Could we adjust the constitutional claim without first addressing the APA and also vice versa?

[02:14:39] Speaker 10:
I'm sorry, I didn't hear that question.

[02:14:41] Speaker 13:
Could we be addressing the constitutional claim without addressing the APA and vice versa, or would we have a constitutional avoidance issue?

[02:14:48] Speaker 10:
I think you could really do either one.

[02:14:53] Speaker 10:
But I think we do have relief under the APA.

[02:14:55] Speaker 10:
I think it is final agency action.

[02:14:57] Speaker 10:
I hear you.

[02:14:58] Speaker 10:
Essentially, your question is, if you win under the APA, do we have to reach the constitutional claim?

[02:15:02] Speaker 10:
I think the answer to that is no.

[02:15:04] Speaker 10:
And I'm happy to briefly touch on the APA claim.

[02:15:07] Speaker 10:
The one point I would make on the constitutional claim is I heard

[02:15:12] Speaker 10:
the argument that what Dalton says is if the government says we don't have any statutory or constitutional authority, it's not a constitutional claim.

[02:15:22] Speaker 10:
I think that is directly contradicted by the text of, not just by the existence of Youngstown, but by the text of Dalton, which says, and this is a quote describing Youngstown, because no statutory authority was claimed, the case necessarily turned on whether the constitution authorized the president's actions.

[02:15:40] Speaker 10:
which in other words, what Dalton says is if you don't claim any statutory authority, it isn't necessarily a constitutional question because the separation of powers requires that the executive have authority to, especially in this case, fundamentally restructure the government.

[02:15:56] Speaker 11:
To answer the APA question that- Just on that point, I mean, isn't Youngstown factually distinguishable because there the government undoubtedly took an action, seizure of the steel mills, for which it claimed no statutory authority.

[02:16:10] Speaker 11:
only inherent constitutional authority, but here the government says we're not shutting down the CFPB, you know, we're taking actions that are deregulatory, we're making it smaller, but they don't claim to be shutting down the CFPB.

[02:16:23] Speaker 11:
So it seems strange if they're not claiming to do that to then attach to them the same reasoning of Youngstown.

[02:16:30] Speaker 10:
So I think that's really a question I think that's a clear error question of whether the district court was correct in the factual finding that the defendants were in fact shutting down the CFP I don't think it can be that you can avoid a constitutional claim by just saying.

[02:16:46] Speaker 10:
Like if the president came in in Youngstown and said, I didn't seize the steel mills.

[02:16:51] Speaker 10:
I was just putting locks on doors and sending buses of employees to run them.

[02:16:54] Speaker 10:
I don't think that that would get you out of a constitutional claim.

[02:16:57] Speaker 10:
I don't know that there's any authority for the fact that it turns on what the government claims it's doing.

[02:17:03] Speaker 10:
The question is, what did the government do?

[02:17:05] Speaker 10:
And the district court found that the government was trying to shut down an agency that Congress created.

[02:17:10] Speaker 10:
And then the question is, does the executive have authority to take that action?

[02:17:15] Speaker 08:
Why doesn't it turn on the nature of the claims or defenses?

[02:17:21] Speaker 08:
I mean, for better or worse, the whole law of reviewability is based on this idea that it should be easier to get judicial review of constitutional disputes than of statutory disputes.

[02:17:39] Speaker 10:
I think that's right.

[02:17:41] Speaker 10:
So I think that it turns on, the question turns on, is there an allegation that there is a violation of the Constitution?

[02:17:50] Speaker 10:
And maybe I'm not quite understanding the question, but if the fight is about did the executive violate the separation of powers, I think that is a constitutional claim where the executive is trying to fundamentally restructure the government without any authority from Congress.

[02:18:04] Speaker 10:
I think that's a constitutional claim regardless of

[02:18:07] Speaker 10:
what the claims or the defenses are, but maybe I didn't quite understand.

[02:18:10] Speaker 08:
Well, okay.

[02:18:11] Speaker 08:
Well, let's, let's talk about that then.

[02:18:13] Speaker 08:
Um, what line would you draw to distinguish statutory claims that are, are just statutory claims, even though every time the executive violates a statute, the take care clause is in some sense being violated.

[02:18:37] Speaker 08:
distinguish that from what you think we have here, which is something more that constitutionalizes things for purposes of the law of judicial review.

[02:18:52] Speaker 10:
Sure.

[02:18:52] Speaker 10:
So I think we have quite an extreme case here, which is the executive claiming a power to create, or in this case, destroy an agency, which the law has been clear since McCullough v. Maryland is the power that Congress had.

[02:19:06] Speaker 10:
I think the easy cases where the executive claims a power and authority to restructure the government, that's a separation of powers claim.

[02:19:14] Speaker 10:
The way I would express it, and I recognize there's going to be some hard pieces in the middle.

[02:19:20] Speaker 10:
I don't disagree with you.

[02:19:20] Speaker 10:
The way I would express it is essentially what I think Dalton says, which is if a statute gives you authority to do, gives the executive authority to do something, but the executive does it wrong.

[02:19:31] Speaker 10:
So the executive in Dalton, for example, actually the,

[02:19:34] Speaker 08:
But the Supreme Court says it's excessive authority versus no authority, some variation.

[02:19:40] Speaker 10:
Yeah.

[02:19:40] Speaker 10:
And I agree with you that there might be hard cases in the middle, but that is what Dalton says.

[02:19:46] Speaker 10:
And I'll note that Youngstown could have been a statutory claim.

[02:19:49] Speaker 10:
There were statutes in Youngstown.

[02:19:51] Speaker 10:
There were statutes that authorized the executive to seize certain things under certain circumstances.

[02:19:57] Speaker 10:
And that didn't stop the court from saying this is a constitutional claim.

[02:20:00] Speaker 10:
And it didn't stop Dalton from characterizing it as a constitutional claim.

[02:20:03] Speaker 10:
And that's because fundamentally, the act of the executive took without authority is fundamentally a legislative act that the executive cannot take.

[02:20:12] Speaker 01:
What role, in the Dalton calculus, in response to the exchange you were just having with Judge Katz, what role, if any, does it play for you that the executive is not claiming that it has statutory authority to do the thing that you said it did?

[02:20:29] Speaker 01:
So it's different.

[02:20:31] Speaker 01:
You say there was an agency shutdown.

[02:20:33] Speaker 01:
The executive says we didn't, we never meant to shut down the agency.

[02:20:37] Speaker 01:
We're just downsizing.

[02:20:38] Speaker 01:
We're trying to, we're trying to be responsible stewards.

[02:20:40] Speaker 01:
We're just downsizing.

[02:20:42] Speaker 01:
If that's the situation and there's no dispute on whether there's authority under the statute or the constitution for that matter, but at least under the statute to take the action that you, you allege has been taken.

[02:20:54] Speaker 01:
Does that matter for Dalton purposes?

[02:20:55] Speaker 01:
Is that just irrelevant or only turns on the way the plaintiffs pitch the claim?

[02:20:59] Speaker 01:
Or does it matter the stance that the government takes on whether they have authority to engage in the action that you alleged they engaged in?

[02:21:11] Speaker 10:
I don't think ultimately it matters legally whether the government says, yes, I have authority or no, I don't.

[02:21:17] Speaker 10:
But I do think it makes it a particularly easy case that the government concedes it has no authority statutory or constitutional to do the thing that the district court found that it did.

[02:21:27] Speaker 01:
Why does it make it an easy case?

[02:21:30] Speaker 01:
I mean, it might make it an easy case on the merits if in fact the government did it.

[02:21:33] Speaker 01:
I understand that.

[02:21:34] Speaker 01:
But why does it make it an easy case for purposes of Dalton, the Dalton question of whether there is a constitutional action?

[02:21:41] Speaker 10:
Because there's no hard line drawing question about whether the defendants exceeded their statutory authority or just didn't have any.

[02:21:50] Speaker 10:
Okay, so it gets back to lack of authority versus excess.

[02:21:52] Speaker 10:
I'm sorry?

[02:21:52] Speaker 01:
It gets back to lack of authority versus excess authority.

[02:21:54] Speaker 01:
It's an obvious lack of authority case if the executive is not claiming they have authority.

[02:21:59] Speaker 01:
Exactly.

[02:21:59] Speaker 01:
I mean, I suppose they could do that with an excess authority too.

[02:22:01] Speaker 01:
They could just say, I mean, I don't think it exceeds, I think it would exceed my authority.

[02:22:08] Speaker 01:
I'm not saying I don't have any authority in the area,

[02:22:10] Speaker 01:
but I acknowledge that it would exceed my authority, but I didn't do that actually.

[02:22:16] Speaker 10:
Sure.

[02:22:17] Speaker 10:
And I think then you would have the potential question of whether it's just an exceeds authority case or whether it's a lack of authority case, but because the government has resolved that question for us, it has been very explicit.

[02:22:31] Speaker 10:
I think it's correct to do this, that it has no authority to shut down an agency.

[02:22:37] Speaker 08:
On the Dalton point,

[02:22:39] Speaker 08:
Can you distinguish the Fourth Circuit decision in Sustainability Institute or would we have to create a circuit conflict to rule in your favor on the Dalton point?

[02:22:52] Speaker 10:
I don't think it would create a circuit conflict there.

[02:22:54] Speaker 10:
I take it with the Fourth Circuit.

[02:22:57] Speaker 08:
Full sale shutdown of major grant programs.

[02:23:02] Speaker 08:
The argument for constitutionalizing is, look, this is a macro structural problem,

[02:23:09] Speaker 10:
micro narrow case and the court says none of that matters as i understand what the fourth circuit held uh it held that this was it is potentially a macro question uh but it is a macro question where there is statutory authority and including statutory authority to you know what i understood the fourth circuit to hold is there is statutory authority to essentially withhold this money to terminate these grants

[02:23:36] Speaker 10:
And the government just made the claim is really the government didn't follow the correct procedures.

[02:23:40] Speaker 10:
There is no statutory authority to shut down the CFPB.

[02:23:43] Speaker 10:
So I don't think that this court would have to split with the Fourth Circuit.

[02:23:47] Speaker 10:
I do think if the court were to accept the defendant's position, it would be splitting with the Ninth Circuit in Murphy, which made very clear that just because you might also violate a statute doesn't mean you're not violating the Constitution.

[02:23:59] Speaker 02:
Tell me, just as a matter of constitutional avoidance, we always have to address the statutory question first.

[02:24:06] Speaker 10:
I absolutely think it would make sense here to address the statutory question first.

[02:24:10] Speaker 10:
I think we would win on the APA.

[02:24:12] Speaker 10:
And when I understand, I'm sorry, go ahead.

[02:24:14] Speaker 02:
When I was just saying, I think a long time ago, Judge Childs had asked you to talk about that argument.

[02:24:18] Speaker 02:
So I'm wondering if I can resurrect that request.

[02:24:21] Speaker 10:
Yes, I agree that it would make sense to address the statutory question versus a matter of constitutional avoidance.

[02:24:27] Speaker 10:
I don't know that this court has to do that.

[02:24:31] Speaker 10:
partially because the court is not ruling on whether the action was unconstitutional.

[02:24:36] Speaker 10:
And in fact, the defendants concede that shutting down an agency is unconstitutional.

[02:24:41] Speaker 10:
So it's not really a constitutional question.

[02:24:43] Speaker 10:
It's a question about the existence of an equitable cause of action under certain circumstances.

[02:24:47] Speaker 10:
So I think the court could reach that question without implicating any constitutional question.

[02:24:52] Speaker 10:
But I think it would also be perfectly reasonable to say,

[02:24:57] Speaker 02:
This we're not going to worry about that we're just going to roll in the equitable maybe I'm wrong, I assume the equitable cause of action would definitely be subject to cost the limits, no way that API relief.

[02:25:10] Speaker 10:
I think that's right.

[02:25:11] Speaker 10:
I don't think a PA by by its terms I don't think a PA relief is subject to to cost or at least I think it's clear that the Supreme Court did not rule on that and there is a separate statutory provision.

[02:25:20] Speaker 10:
I agree that the equitable relief under the Constitution would be subject to possible events but for all of the reasons we discussed they don't.

[02:25:27] Speaker 10:
I don't think that there's any problem there.

[02:25:30] Speaker 10:
On the APA, what I take to be the defendant's argument, the only real argument that I think they're making now is essentially it's not final agency action.

[02:25:40] Speaker 10:
And I think there are really only three potential ways you can get there.

[02:25:45] Speaker 10:
One is shutting down an agency isn't final agency action.

[02:25:49] Speaker 10:
I, the defendants have conceded that's not what they're saying.

[02:25:52] Speaker 10:
They're not saying it's never final agency action.

[02:25:54] Speaker 10:
The second way you can get there is we didn't shut down the agency.

[02:25:57] Speaker 10:
I think that's would require you to find that the district court's finding was clearly erroneous and happy to talk about that, but I didn't hear many questions about that.

[02:26:06] Speaker 10:
And then they're just left with the argument that it is final agency action, but there's something different about it if at the preliminary injunction stage, it's not

[02:26:16] Speaker 10:
You don't have a writing, I think, or maybe just you don't have an expression they're not really clear about this.

[02:26:23] Speaker 10:
And that's partially because it's been a moving target throughout the litigation they didn't raise this argument in the district court of the most recent version under in front of the on bonk court is some, it has to be some sort of expression.

[02:26:34] Speaker 10:
And I think that that rule would require this court to overturn a number of its cases, including the Hispanic Affairs Project, which I think is quite similar here.

[02:26:45] Speaker 10:
The government made almost exactly the same argument there as it's making here, although there was at the summary judgments phase, where the plaintiff said,

[02:26:55] Speaker 10:
alleged there was a de facto policy of treating certain kinds of visa applications a certain way.

[02:27:01] Speaker 10:
And they submitted a bunch of declarations that says, as a matter of fact, here's what's happening on the ground.

[02:27:06] Speaker 10:
And the government came in and said, well, you don't have any memorandum.

[02:27:10] Speaker 10:
You don't have a writing.

[02:27:11] Speaker 10:
You don't have a statement.

[02:27:12] Speaker 10:
You can't you're not saying who made this decision.

[02:27:14] Speaker 10:
And so you really either have a statement problem or you have essentially a Lujan problem.

[02:27:19] Speaker 10:
That's exactly and virtually exactly the same argument that the government is making here.

[02:27:24] Speaker 10:
And what the court held is you don't need it to be written down.

[02:27:28] Speaker 10:
The question is, does the agency have a policy or has it made a decision that it's affecting the rights and obligations of the plaintiffs?

[02:27:36] Speaker 10:
And the answer there was yes.

[02:27:38] Speaker 10:
And then with respect to Lujan, what the court said is similar to what Judge Pillard said about the footnote in Lujan is, look, Lujan explicitly says if there's an overarching policy or decision that you're challenging,

[02:27:52] Speaker 10:
it governs all of the essentially implementation actions, that is final agency action and you can challenge that.

[02:28:01] Speaker 11:
Even if the so-called shutdown here was an agency action, why is it not clearly erroneous to find that it was final?

[02:28:12] Speaker 11:
So even accepting some of the findings that there was some kind of shutdown underway, then there's a whole series of communications showing

[02:28:22] Speaker 11:
that what they were really doing is putting a pause on what was happening and trying to figure out what the statutory minimum was, right?

[02:28:34] Speaker 11:
Go forward with statutory required functions.

[02:28:38] Speaker 11:
And so even if there was some agency action, which I'm not entirely convinced for a shutdown, why was that final agency action in this context?

[02:28:50] Speaker 11:
What was the final?

[02:28:52] Speaker 11:
Agency action.

[02:28:53] Speaker 10:
Sure.

[02:28:54] Speaker 10:
So, so the final agency action is deciding to shut down the agency is the chief operating officer testified it would have been eliminated absent the district court's intervention, and I hear what you're saying is well there are some emails that went around that seem to suggest that.

[02:29:11] Speaker 10:
that the agency was in fact just downsizing, was committed to performing its statutory functions.

[02:29:15] Speaker 10:
I'll note I'm a little surprised that the government continues to make this argument in light of the fact that just before it filed its brief in this court, the acting director of the agency publicly stated, we're trying to close down the agency and we want to put it down.

[02:29:29] Speaker 10:
I expect we'll succeed in two to three months, which I assume was the length of time that he had been told the en banc process might take.

[02:29:36] Speaker 10:
So I'm a lid and asking for the first time on appeal for the presumption of regularity when it didn't ask for that below and is making public statements, but but putting all that aside, assuming where the shutdown is a final agency action, even if at some moment in time to stop work order or something that the district was pointed to was an agency action for a shutdown, so called.

[02:29:59] Speaker 11:
Why was that final based on all the other evidence in the record?

[02:30:03] Speaker 10:
Sure, so I think there are potentially two ways to look at it.

[02:30:07] Speaker 10:
One is, I think the question is, I don't think there's any real dispute that there was a decision made to shut down the agency and they were in fact shutting down the agency.

[02:30:17] Speaker 10:
Why was it final?

[02:30:18] Speaker 10:
How was it final based on the record before us?

[02:30:21] Speaker 10:
So it's final because we know it's final because the chief operating officer was going around telling everyone that that was true and they actually implemented it.

[02:30:29] Speaker 10:
So they were in the middle when the district court intervened, they were in the middle of eliminating every single position in the agency.

[02:30:37] Speaker 10:
They had terminated virtually all of the contracts, excluding

[02:30:44] Speaker 10:
I think there were two exclusions one was litigation, the database that had litigation data which they're required to preserve and the database that had employee data which they're required to preserve.

[02:30:55] Speaker 10:
They had eliminated every single physical office, even though there was an executive order saying that agencies must be in person, they had gotten rid of the website.

[02:31:04] Speaker 11:
And what about all the actions, you know, an email suggesting that people should go forward with statutorily required functions.

[02:31:11] Speaker 10:
Sure.

[02:31:11] Speaker 10:
So what the district court found I don't think this is clearly erroneous is that those were created for the district courts consumption and I'll just point out a few of the district courts reasons for that.

[02:31:21] Speaker 10:
The main there are a couple things that the defendants relied on for the proposition that they, you know,

[02:31:26] Speaker 10:
Maybe they were trying to shut it down, but they have since voluntarily stopped doing that.

[02:31:31] Speaker 10:
The first is the declarations of Chief Operating Officer Adam Martinez, who on the stand and in a second declaration testified.

[02:31:41] Speaker 10:
Actually, I was wrong about that.

[02:31:43] Speaker 10:
And he said that the information he was given that was wrong was given to him by agency leadership and he now knew that it was not true.

[02:31:49] Speaker 10:
So those declarations are out.

[02:31:51] Speaker 10:
And I think it's not clearly erroneous when a declarant says, I now know that my declaration wasn't true, to not believe that declaration.

[02:31:57] Speaker 03:
If we're trying to assess whether it was final agency action, do we have to look at what was happening in the agency at the time when the district court ruled?

[02:32:11] Speaker 03:
And so this after the fact material doesn't really, is it even permissible to look at it?

[02:32:19] Speaker 03:
I mean, I could see evidence coming to light that existed at the time of the complaint.

[02:32:27] Speaker 03:
might be relevant but but post.

[02:32:32] Speaker 03:
shut down conduct is it relevant.

[02:32:37] Speaker 10:
I think it is potentially relevant.

[02:32:40] Speaker 10:
One, it's relevant as a voluntary cessation argument.

[02:32:43] Speaker 10:
The defendants aren't making that argument.

[02:32:45] Speaker 10:
That's different.

[02:32:46] Speaker 10:
And so I do think it's relevant that way if the defendants are not making that argument.

[02:32:50] Speaker 10:
They are not making that argument.

[02:32:51] Speaker 10:
They have explicitly disavowed that argument.

[02:32:53] Speaker 10:
I think the reason they're not making that argument is because it would be in conflict with the argument of we never tried to shut down the agency.

[02:32:58] Speaker 10:
Right.

[02:32:59] Speaker 03:
But if we were to sustain the district courts finding a fact that they were, then it would be open to them.

[02:33:07] Speaker 03:
you know, they could seek further review.

[02:33:08] Speaker 03:
And if that's not successful, then they might turn their minds to a voluntary cessation showing, and that would look to these kinds of emails and more.

[02:33:20] Speaker 03:
But I'm just trying to understand your position in rebutting them.

[02:33:25] Speaker 03:
It seems like, you know, the first line of argument is, well, she was looking at whether the complaint stated a claim that there was final agency action

[02:33:35] Speaker 03:
that they were shutting the agency down.

[02:33:38] Speaker 10:
I think that's right.

[02:33:38] Speaker 10:
I do think that the evidence leading up to and that she heard at the preliminary injunction hearing, I do think that is relevant to determining whether a preliminary injunction is necessary.

[02:33:50] Speaker 10:
And one thing that would go into it is have the defendants voluntarily cease their conduct.

[02:33:55] Speaker 10:
So I don't think it's irrelevant.

[02:33:57] Speaker 03:
Or even how, maybe less than that, how dung-ho do they seem?

[02:34:03] Speaker 03:
I mean, I think part of what

[02:34:05] Speaker 03:
is challenging in this case is the speed at which the action was being taken.

[02:34:10] Speaker 03:
I mean, the notion that it's non-final when it was like, we can't wait till close of business.

[02:34:17] Speaker 03:
It was breathtaking how quickly action was from, you know, level A to 10% of

[02:34:26] Speaker 03:
of that.

[02:34:27] Speaker 10:
I think that's exactly right.

[02:34:28] Speaker 10:
And even if you wanted to take into account what I think is their best evidence, I think the district where did not clearly air and rejecting that.

[02:34:36] Speaker 10:
So for example, they identify the average prime offer rate they say you can keep working on this this is statutorily required it's an interest rate that

[02:34:44] Speaker 10:
matters to the mortgage industry.

[02:34:47] Speaker 10:
And they say that shows that we're complying with their statutory obligations.

[02:34:51] Speaker 10:
That whole team that does that work would have been eliminated on February 14th as part of the riff had the district court not intervened.

[02:34:58] Speaker 10:
So finding that the claim that that showed they were going to comply with their responsibilities when they were going to riff every position that that was necessary to do that, I think was not clearly erroneous.

[02:35:09] Speaker 03:
Can I ask you a little hobby horse of mine, which is supervision?

[02:35:12] Speaker 03:
Yeah, I know

[02:35:13] Speaker 03:
enforcement is deeply discretionary.

[02:35:17] Speaker 03:
It's not discretionary to abdicate it altogether, but it's discretionary what priorities you have.

[02:35:23] Speaker 03:
What about supervision?

[02:35:24] Speaker 03:
How much play in the joints is there and what is the supervisory responsibility of the Bureau?

[02:35:34] Speaker 10:
I would want to go back and just double check to make sure I get it right, I think there, I mean there certainly is a statutory requirement to have supervision and to supervise and particularly the CFPB is the only agency that has supervision authority over large banks so banks over I think $10 billion.

[02:35:51] Speaker 10:
and also non-bank financial institutions, there are statutory obligations to conduct supervision.

[02:35:56] Speaker 10:
I do think that the agency has some discretion there about how it exercises that authority.

[02:36:02] Speaker 10:
I'll note that the district court did not purport at all to try to control that, even though I think the district court potentially had a little bit more room, but did not intentionally, didn't include anything that would try to control anything about which the agency has any discretion.

[02:36:19] Speaker 01:
Can I ask one question about the relationship between the APA action and then the equitable constitutional action?

[02:36:26] Speaker 01:
So if we were to conclude that there is no final agency action for APA purposes to resist that, but let's just hypothesize that that was the conclusion.

[02:36:37] Speaker 01:
And then we assessed whether there was a constitutional problem with the decision to shut down the agency that the district court found.

[02:36:46] Speaker 01:
Is there something that's incongruous about

[02:36:49] Speaker 01:
saying that there's no APA action to look at the agency shutdown because it wasn't final enough, et cetera, et cetera.

[02:36:57] Speaker 01:
But there is such a decision for purposes of assessing an equitable constitutional action.

[02:37:04] Speaker 10:
Don't think so.

[02:37:06] Speaker 10:
I mean, the only argument I have heard about the only real argument I think the defendants are making now about finality is this question of expression.

[02:37:13] Speaker 10:
I think that is incorrect and happy to talk about that.

[02:37:16] Speaker 10:
But I don't think there's anything inconsistent between saying

[02:37:20] Speaker 10:
We're not gonna hold its final because we think at the preliminary injunction stage, you have to show an expression as opposed to a likelihood of a success on that or that that's not required at all and saying there was this action under the constitution.

[02:37:33] Speaker 10:
I don't think there's anything inconsistent in that.

[02:37:36] Speaker 02:
You, sorry.

[02:37:39] Speaker 02:
Mr. Judge, Rao's question about what do we do about these emails and stuff that came out, you said you had three answers.

[02:37:47] Speaker 02:
I think you only got one out.

[02:37:50] Speaker 02:
I was interested in hearing the other two.

[02:37:54] Speaker 02:
I'm sorry, I didn't hear that.

[02:37:55] Speaker 02:
I'm losing my voice.

[02:37:57] Speaker 02:
I think you said in response to Judge Rao, maybe I'm wrong that you had three responses regarding her question about what do we do about these emails that showed that no, no, no, we don't mean to shut it down completely.

[02:38:11] Speaker 02:
We mean to strip it down to what the statute requires.

[02:38:16] Speaker 02:
I thought you said you had three responses to that.

[02:38:19] Speaker 02:
and we only got the first one out.

[02:38:21] Speaker 02:
I was just...

[02:38:22] Speaker 02:
interested in hearing the other two, but if I've miscounted, um, I'm not sure what I was counting.

[02:38:27] Speaker 10:
So I'm not sure if you miscounted, but I will, I will give you the list.

[02:38:30] Speaker 10:
Um, one is, I think that's a voluntary cessation argument, which they haven't made.

[02:38:33] Speaker 10:
Uh, the second is the, the, here's the three record reasons.

[02:38:37] Speaker 10:
The first record reason, um, is the one that we were talking about, which was, um, initially and throughout the district court proceedings, the defendants were relying on these Martinez declarations, which he disavowed.

[02:38:50] Speaker 10:
Um, the second is,

[02:38:51] Speaker 10:
The defendants were relying on this email sent the day before the hearing by the chief legal officer saying, oh, I didn't realize nobody was working.

[02:39:02] Speaker 10:
You've all misinterpreted it.

[02:39:04] Speaker 10:
What I really meant is for everybody to be doing their statutory obligations all along.

[02:39:08] Speaker 10:
And the district court found that that was created for the court's consumption.

[02:39:12] Speaker 10:
I don't think that was clearly erroneous.

[02:39:15] Speaker 10:
For example, the court cites evidence that

[02:39:18] Speaker 10:
being reactivated on paper didn't mean that anybody could actually do the work.

[02:39:23] Speaker 10:
So there's a number of declarations and evidence in the record that people couldn't actually work, even though there was this email supposedly letting them.

[02:39:29] Speaker 10:
And in fact, employees, some employees got a text message after this email went out that said, do your statutory obligations, they got a text message on their private phone that said, don't do anything.

[02:39:40] Speaker 10:
These are at J 716 text message from him from their supervisor from their manager.

[02:39:46] Speaker 10:
So that's at J 716 and J 662 the supervision division division got an email that says stand down the only thing they were allowed to do was provide a report to acting leadership.

[02:40:00] Speaker 10:
The stop work order wasn't ever rescinded.

[02:40:03] Speaker 10:
That's at JA718.

[02:40:05] Speaker 10:
The head of the RIF team testified and the chief operating officer confirmed that throughout this time the team kept meeting and they were meeting in order to plan for when the district court's order was lifted and they could again eliminate every position in the agency and that plan had never changed.

[02:40:23] Speaker 10:
That's it, JA664, JA1238, and JA1131.

[02:40:29] Speaker 10:
There was still no office space.

[02:40:31] Speaker 10:
There to this day is no office space, despite an executive order saying agencies have to be in person.

[02:40:36] Speaker 10:
All mandatory training was canceled.

[02:40:38] Speaker 10:
There's still to this day a tip line to report people who are working in violation of the stop work order.

[02:40:44] Speaker 10:
And again, recently, VOTE went on a podcast and said,

[02:40:48] Speaker 10:
We're trying to close the agency we want to put it down so I don't think it's clearly erroneous to not rely on that email.

[02:40:54] Speaker 10:
And then the third tranche of evidence that the defendant say supports their position.

[02:40:59] Speaker 10:
There were three things that happened before essentially before this email.

[02:41:04] Speaker 10:
One is the average prime offer rate email, which we've talked about.

[02:41:08] Speaker 10:
Another was the Home Mortgage Disclosure Act.

[02:41:11] Speaker 10:
It's another statutory obligation.

[02:41:13] Speaker 10:
There was an email about that.

[02:41:14] Speaker 10:
Similarly to the average prime offer rate email, the office that handles that work was going to be eliminated in the RIF on February 14th, had the district court not intervened.

[02:41:25] Speaker 10:
So the email saying, hey, office, that's not going to exist in two days.

[02:41:28] Speaker 10:
You can keep doing your work.

[02:41:29] Speaker 10:
I don't think it was clearly erroneous to find that that didn't show that they weren't shutting it down.

[02:41:34] Speaker 10:
And the last is an email about consumer response.

[02:41:38] Speaker 10:
And what the chief operating officer testified is that consumer response was one of the things that if they publicly shut it down they were concerned about public backlash.

[02:41:49] Speaker 10:
This is at J a 988.

[02:41:51] Speaker 10:
And there was widespread media attention when that got shut down.

[02:41:55] Speaker 10:
And they turned on the public facing part of that after this widespread media attention, but they didn't do anything to make it effective.

[02:42:02] Speaker 10:
So the contracts that were needed to operate still were terminated.

[02:42:06] Speaker 10:
The employees that were needed to operate it were still on administrative leave.

[02:42:11] Speaker 10:
And the plan was to get rid of every position that

[02:42:16] Speaker 10:
that was needed along with the rest of the agency to operate that database.

[02:42:20] Speaker 10:
And so again, you have an email that says we're doing this thing, but actually nobody is doing it.

[02:42:26] Speaker 10:
And the plan was to eliminate everybody who could do it.

[02:42:28] Speaker 10:
And so that, those are the three sort of tranches of evidence.

[02:42:32] Speaker 00:
Thanks.

[02:42:33] Speaker 00:
My colleagues don't have additional questions for you.

[02:42:36] Speaker 00:
Thank you.

[02:42:36] Speaker 00:
Thank you, council.

[02:42:40] Speaker 01:
MacArthur will give you the five minutes you asked for for rebuttal.

[02:42:44] Speaker 04:
Thank you.

[02:42:45] Speaker 04:
I'm gonna take any questions you put on any issue in the case.

[02:42:49] Speaker 04:
My part, I've got two points that I'd like to touch on.

[02:42:52] Speaker 04:
One on this question of finality versus voluntary cessation.

[02:42:57] Speaker 04:
I'll think about that and then I'll circle back to the scope of the preliminary injunction.

[02:43:02] Speaker 04:
And on the first point, I think it's, I'd like to frame it by setting out what I take to be three distinct but related factual questions in this case.

[02:43:12] Speaker 04:
First factual question is, did the acting director in early February make a decision to shut down the agency entirely and cease performing its statutory duties?

[02:43:22] Speaker 04:
That's obviously the predicate for everything the district court did here.

[02:43:26] Speaker 04:
Second question is, did he ever express that decision in any final and binding way?

[02:43:32] Speaker 04:
That goes to whether there was final agency action under the APA.

[02:43:36] Speaker 04:
The third question, even if you answer the first two of those in the affirmative, is was that decision still in force in late March when the district court entered the preliminary injunction?

[02:43:48] Speaker 04:
Because that was the basis on which the district court decided that a preliminary injunction was necessary.

[02:43:53] Speaker 04:
That absent that injunctive relief, these defendants, while conceding that it would be illegal to do so, would nonetheless proceed to close the Bureau entirely.

[02:44:03] Speaker 04:
So even if you rejected our arguments,

[02:44:06] Speaker 04:
On those first two points, if you conclude that by late March, any plan to shut down the agency has been abandoned and that the district court finding to the contrary is in error, then this injunction was an abusive discretion because it was entered on the basis of a clearly erroneous factual finding.

[02:44:25] Speaker 04:
There was also never, happy to give you chapter numbers on this, there was never any agency approved plan to riff the entire workforce.

[02:44:33] Speaker 04:
quickly on the scope of the remedy.

[02:44:37] Speaker 04:
Even if you reject all of our merits defenses in this case, I haven't heard any cogent persuasive argument for how you can get from these plaintiffs injuries to the terms of this injunction which sweep far beyond

[02:44:53] Speaker 04:
what's necessary to remedy the injuries that they are alleging.

[02:44:58] Speaker 04:
I don't know why this is.

[02:44:59] Speaker 09:
If you have an issue with the scope of the injunction, shouldn't you be making a motion in the district court to modify the injunction?

[02:45:05] Speaker 09:
I just don't think that we're well equipped to tailor an injunction.

[02:45:08] Speaker 09:
The district court is closer to the facts.

[02:45:11] Speaker 09:
It seems that it's her injunction.

[02:45:12] Speaker 09:
If you want to modify it, it seemed to me that wouldn't that be the appropriate course?

[02:45:17] Speaker 04:
We may yet do that.

[02:45:19] Speaker 04:
But it's not our burden to go in and move the district court to modify an injunction that was entered in error because it is overbroad.

[02:45:27] Speaker 04:
You may recall that this, our appeal of the preliminary injunction was litigated very quickly.

[02:45:32] Speaker 04:
The injunction was entered in late March.

[02:45:34] Speaker 04:
It was set on a briefing schedule, fully briefed and argued by mid-May, six weeks later.

[02:45:39] Speaker 04:
So jurisdiction are already transferred to this court.

[02:45:43] Speaker 04:
At that point, district court lacked jurisdiction to modify the injunction.

[02:45:46] Speaker 09:
But even if we think it's overbroad, we should just remand and let the district court decide in the first instance, shouldn't we?

[02:45:53] Speaker 04:
You should vacate and remand because entering an injunction that's overbroad is legal error.

[02:45:58] Speaker 04:
So yes, vacate and remand would be a proper remedy on the scope of the injunction issue.

[02:46:03] Speaker 09:
Even if we don't vacate, if we think the injunction is appropriate but overbroad, we could remand.

[02:46:09] Speaker 04:
I mean, I suppose if you conclude it's not overbroad and it wasn't error, remand would be one possible remedy, but I don't see how you could possibly conclude that this injunction is not overbroad.

[02:46:19] Speaker 04:
Once you get yourself out of the framework of these plaintiffs are here to save the agency and into the proper legal framework of these plaintiffs are here to remedy their discrete injuries, I don't see why this is so complicated.

[02:46:30] Speaker 09:
I understand.

[02:46:31] Speaker 09:
I'm just asking you a procedural question, which is who should do this first?

[02:46:34] Speaker 09:
And it seems to me the district court should do it first.

[02:46:36] Speaker 09:
Do you agree?

[02:46:38] Speaker 09:
should consider the breadth of the injunction and the appropriateness of the remedy.

[02:46:44] Speaker 04:
I think the district court had an opportunity to consider the breadth issue when the court entered the injunction.

[02:46:48] Speaker 04:
We did make the argument below that the injunction, proposed injunction was overbroad because it was not tailored to these specific plaintiffs.

[02:46:55] Speaker 02:
It did that with a gun to the agency's head.

[02:46:58] Speaker 02:
Pardon?

[02:46:58] Speaker 02:
It did that with a gun to the agency's head and in a pre-CASA world.

[02:47:05] Speaker 04:
Right?

[02:47:05] Speaker 04:
I'm not sure what you're referring to.

[02:47:07] Speaker 02:
The district court made this fast hearing and made its fast decision when there was, in its findings, a gun to the agency's head.

[02:47:13] Speaker 02:
It was going to be gone.

[02:47:14] Speaker 02:
They did that in the pre-CASA world.

[02:47:16] Speaker 02:
And so if the agency has now taken her fact findings, accepting them as it's not clearly erroneous, if the agency has now changed its mind and its approach, it seems to me that's on the,

[02:47:33] Speaker 04:
government's shoulders to come forward.

[02:47:35] Speaker 04:
Well, the planning has continued.

[02:47:37] Speaker 04:
And if it's of interest to the court, that's something that I could... The planning?

[02:47:42] Speaker 04:
The planning for what to do with this agency if and when an injunction is vacated or modified so as to allow us to proceed with a RIF, which is a lawful measure that the agency is allowed to take.

[02:47:52] Speaker 04:
And if it's of interest to court to see those plans, that's certainly something that I can take back to my clients at the CF.

[02:47:58] Speaker 04:
But that doesn't change the fact that this injunction was entered in error, whether or not there was a you're offering to share with us your plans forward.

[02:48:06] Speaker 02:
What to do if the injunction is lifted.

[02:48:08] Speaker 04:
That's something of interest in the court.

[02:48:09] Speaker 04:
I can certainly take that back to my clients and we can have

[02:48:14] Speaker 04:
Um, but it's not again, it's not this report doesn't get to enter an over broad injunction and then put the burden on us to come and say this injunction that was entered in there, you not have to lose to modify it or proceed with your rift plans under the district court supervision upon pain of contempt like occurred when there was a partial stay of the preliminary injunction.

[02:48:35] Speaker 11:
I was just interested in your answer to a question.

[02:48:38] Speaker 11:
The chief judge asked Miss Bennett, which is that there is no APA final agency action here.

[02:48:43] Speaker 11:
Does that

[02:48:44] Speaker 11:
implications for the equitable constitutional claim?

[02:48:50] Speaker 11:
Is there some connection there?

[02:48:52] Speaker 04:
For an equitable constitutional claim, you wouldn't have to have to meet the various APA requirements necessarily.

[02:48:59] Speaker 04:
I still think some of those doctrines should inform how the court would think about an equitable constitutional claim because one of the reasons why we have

[02:49:08] Speaker 04:
a finality doctrine in the APA and rightness, which is not just an APA doctrine, but also one that you would think about in the constitutional context is precisely to give agencies the breathing room to alter a tentative position and to course correct.

[02:49:24] Speaker 04:
And even if you think that there was an initial decision to close the agency entirely, which we do vigorously dispute that the record supports that conclusion,

[02:49:33] Speaker 04:
The record clearly shows that in the subsequent weeks, the agency was taking numerous steps to ensure performance of statutory duties and had abandoned any initial intent to close the agency entirely.

[02:49:49] Speaker 06:
Mr. McArthur, if we were to vacate the injunction as over broad and then on remand, the district court were to conclude that the February 10th email was final agency action and the district court then vacated

[02:50:03] Speaker 06:
that final agency action and did nothing more than that, they said, it's closed.

[02:50:10] Speaker 06:
What would you do?

[02:50:13] Speaker 04:
I don't know exactly what we would do, but that sounds like not something that we would have a particular objection to, vacating since overtaken by events directive during a short transition period, not to do work without agency approval.

[02:50:29] Speaker 04:
I don't think we would have any issue with that.

[02:50:31] Speaker 06:
And then, if you proceeded to do some of the discrete things that the plaintiffs allege are illegal, what do you think they should do?

[02:50:41] Speaker 06:
I suppose it depends on what the discrete thing is.

[02:50:43] Speaker 06:
Let's say you shut down the hotline, and let's say there's a plaintiff that's injured by it.

[02:50:48] Speaker 06:
What should that plaintiff do?

[02:50:49] Speaker 04:
That would be a 7061 claim under the APA they can bring in an action for agency action unlawfully withheld and that that's actually the point just Walker because we don't think any of these plaintiffs has actually proven upstanding.

[02:51:01] Speaker 04:
But if the agency were actually to shut down, there would be thousands of plaintiffs almost immediately withstanding and a cause of action under APA 7061.

[02:51:11] Speaker 04:
All you would need is a plaintiff who wanted to call in a complaint to the hotline.

[02:51:15] Speaker 04:
If that hotline's down, they have an immediate claim that they could bring to court.

[02:51:19] Speaker 04:
The court could order the Bureau to reestablish the hotline and to do that, the agency would have to exist.

[02:51:27] Speaker 01:
Thank you, counsel.

[02:51:27] Speaker 01:
Thank you to both counsel.

[02:51:29] Speaker 01:
We'll take this case under submission.