[00:00:00] Speaker 03: Our next case is Rachel Krieger, Ireland, et al., United States, 2023-1163. [00:00:09] Speaker 03: Ms. [00:00:09] Speaker 03: Schwartz, we're ready when you are. [00:00:13] Speaker 04: Yes, thank you, sir. [00:00:16] Speaker 04: Thank you, Your Honor, and may it please the Court. [00:00:19] Speaker 04: In the early days of the COVID-19 pandemic, Congress enacted a statute creating pandemic unemployment assistance. [00:00:27] Speaker 04: Section 9021B of those provisions states that the Secretary of Labor shall provide to any covered individual unemployment benefit assistance. [00:00:38] Speaker 04: That language is mandatory and unconditional, and this court should enforce it. [00:00:43] Speaker 04: Importantly, this language is unique amongst the unemployment compensation programs included in the CARES Act. [00:00:50] Speaker 04: In no other program did Congress include anything like Section 9021B. [00:00:56] Speaker 03: Counsel, your problem. [00:00:57] Speaker 03: is section F. It says the secretary shall provide the assistance through agreements with states. [00:01:08] Speaker 04: To be precise, Your Honor, it says with agreements through agreements with states which, in the judgment of the secretary, have adequate systems for delivering those benefits. [00:01:18] Speaker 04: It does not say that the only way to administer benefits to a covered individual is through an agreement with that individual state. [00:01:26] Speaker 04: To the contrary, [00:01:27] Speaker 04: Subsection F contemplates that some states would not be capable of administering benefits. [00:01:33] Speaker 04: And nothing in the statute says that individuals living in such states would not receive those benefits. [00:01:40] Speaker 04: In fact, the statute contemplates the possibility of cross-state administration. [00:01:44] Speaker 01: How does it work in the circumstance of DOA? [00:01:47] Speaker 01: you know, the other one. [00:01:49] Speaker 01: I'm referring to this as PUA. [00:01:52] Speaker 01: How does it work in that context? [00:01:54] Speaker 01: Because it does seem as if this statute was modeled after the DUA statute. [00:02:00] Speaker 04: My understanding is that in disaster unemployment assistance, which of course is based for regional disasters, it's primarily delivered through agreements with the state. [00:02:11] Speaker 01: What if a particular state does not have an agreement? [00:02:14] Speaker 04: If a particular state did not have an agreement, my understanding is in that scenario, the benefits, which are of course discretionary in that statute, would not be delivered. [00:02:25] Speaker 04: But there is the precedent from Hurricane Katrina when disaster unemployment assistance benefits were administered by other states. [00:02:33] Speaker 01: But those other states have to stand up and say, yes, I will administer this, right? [00:02:38] Speaker 04: Oh, of course. [00:02:39] Speaker 04: And in this scenario, we believe that there are [00:02:44] Speaker 04: parts of the Pandemic Unemployment Assistance Statute that would make that even more appealing here than it was in Katrina, where of course states did stand up and do that. [00:02:53] Speaker 04: In this statute, not only the entire amount of the benefits was funded by the federal government, but so were all of the administration costs. [00:03:03] Speaker 02: Now, Ms. [00:03:04] Speaker 02: Schwartz, what provision of the PUA provides for direct payment by the government to individuals? [00:03:11] Speaker 04: Well, Section 902 of these states that the Secretary of Labor shall provide to any covered individual unemployment benefit assistance. [00:03:18] Speaker 02: But that doesn't say that [00:03:21] Speaker 02: the government will provide a direct payment to individuals. [00:03:25] Speaker 02: In fact, Section B says exactly the opposite, that it will be provided through agreements with the states. [00:03:35] Speaker 04: Well, under the Tucker Act, the question is whether the statute can be fairly interpreted as requiring the payment to the individual, not what route the payments ultimately have to take to get there. [00:03:46] Speaker 04: If the question were what [00:03:49] Speaker 04: The claimant does not have to show that the secretary was charged with their rent. [00:03:53] Speaker 01: But isn't the problem here, it's a slightly different than what you're saying. [00:03:57] Speaker 01: It's a little nuanced to say this, that sections F and B have to be read together. [00:04:03] Speaker 01: And together they show that the payments that the secretary shall provide are going to be paid in a certain way. [00:04:13] Speaker 04: Correct. [00:04:16] Speaker 04: First of all, we have subsection B, which states that it's the secretary that's charged with providing them. [00:04:21] Speaker 04: to the individuals and we think that is especially notable given the surrounding provisions creating the other unemployment compensation programs which were clear that the access to those benefits was conditioned on a state's desire to participate. [00:04:36] Speaker 04: But Subsection F again does not say that the only way to provide the benefits is through an agreement with an individual state. [00:04:44] Speaker 04: It says through agreements with states which in the judgment of the secretary have an adequate system [00:04:49] Speaker 04: for administering those benefits. [00:04:52] Speaker 01: It does say shall there. [00:04:53] Speaker 01: There's a shall in part F, right? [00:04:55] Speaker 04: Correct, yeah. [00:04:57] Speaker 04: I don't think anyone's argued that it's not a mandate to provide, to use agreements with states which have an adequate system for doing so. [00:05:06] Speaker 04: But nothing about that language defeats the secretary's obligation, as outlined in subsection B, to provide unemployment benefit assistance to all covered individuals. [00:05:18] Speaker 04: And again, I would emphasize the point that this is confirmed by critical differences with the other provisions, creating the other unemployment compensation programs, which appear in this exact same title, enacted as part of the same organic statute. [00:05:34] Speaker 04: When Congress wanted to limit these benefits to only those states that wanted to participate in the program, it did so expressly. [00:05:43] Speaker 04: It did so in the provisions creating those [00:05:47] Speaker 04: those other programs. [00:05:50] Speaker 04: Another critical difference I would like to point out is the uniform nationwide eligibility criteria that appear in the pandemic unemployment assistance provisions but do not appear in any of the provisions creating the other unemployment compensation programs, which again we think is important as it shows that Congress did not mean to defer to the states to determine whether their residents would have access to these benefits. [00:06:17] Speaker 04: I want to emphasize that this decision by Congress to deliberately differentiate pandemic unemployment assistance from the other programs coheres with the unique structure, the unique design and purpose of pandemic unemployment assistance. [00:06:36] Speaker 04: Whereas these other unemployment compensation programs in the CARES Act were designed to enhance existing benefits available [00:06:43] Speaker 04: under state's unemployment compensation programs, pandemic unemployment assistance was designed to circumvent state's judgments as to who should receive these benefits. [00:06:53] Speaker 04: In the context of an unprecedented nationwide unemployment crisis, Congress wanted to ensure that everybody who needed it, everybody who is unemployed due to COVID-19 would receive these benefits. [00:07:11] Speaker 01: There's other programs that you're referring to. [00:07:14] Speaker 01: Specifically, they would be the funds provided to the states, and then whatever the qualifications that states could put on whatever qualifications they wanted to on how those funds were dispersed. [00:07:26] Speaker 04: Well, I think, to be precise, that it was the existing eligibility criteria in states' unemployment compensation programs that always apply. [00:07:34] Speaker 04: And that would exclude a lot of people. [00:07:38] Speaker 04: So independent contractors, small business owners, people who did not have a sufficient amount of income. [00:07:45] Speaker 01: So this program was set up so that, well, by taking away those requirements, the money that went to the state would be distributed just based on not the same criteria, not the state's criteria, but for anybody, right? [00:08:03] Speaker 04: Well, it would be distributed based on the criteria in subsection A. [00:08:07] Speaker 04: of the Pandemic Unemployment Assistance Provisions, which generally provide that they apply to, shall be delivered to anybody who was unemployed due to COVID-19, and it lays out all the reasons that that might happen, and those who were ineligible for unemployment compensation under their state, which might be for these people that I just enumerated, or could be people who had exhausted their benefits under state law. [00:08:39] Speaker 04: Failing to point to a limitation in the text on the mandatory language of subsection B, the government spends a lot of time on what it terms practicability concerns. [00:08:52] Speaker 04: We want to emphasize that this at most has marginal relevance to the statutory interpretation question. [00:09:00] Speaker 04: We have pointed to the availability of cross-state administration in order to make a point about the interpretation of the statute. [00:09:07] Speaker 04: The district court rested its conclusion on the idea that the statute provided no other means or contemplated no other means of delivering benefits. [00:09:16] Speaker 04: But that's simply not true. [00:09:17] Speaker 04: Cross-state administration was contemplated. [00:09:21] Speaker 04: But in any event, the government's practicability concerns are wrong on their own terms. [00:09:28] Speaker 04: Their argument relies [00:09:29] Speaker 04: primarily on the idea that the staff of state unemployment compensation agencies are incapable of reading other states' statutes. [00:09:39] Speaker 04: But I just don't think that's a tenable position, given that these are, of course, the same individuals charged with interpreting and applying the pandemic unemployment or the CARES Act unemployment programs, as well as existing rather detailed federal regulatory requirements. [00:09:56] Speaker 01: For that cross-state administration, [00:09:59] Speaker 01: How does that work? [00:10:02] Speaker 01: I mean, that didn't happen here, right? [00:10:05] Speaker 01: But wouldn't you have to have a state that stood up and said, hey, we're going to be your cross-state administrator? [00:10:11] Speaker 01: That didn't happen. [00:10:13] Speaker 01: So, I mean, even if that was a viable option, because it didn't happen, I'm not sure if I'm following your argument. [00:10:21] Speaker 04: Well, the fact that the government did not call through on its obligation, we don't think absolves it of its duty to provide these payments under subsection B. You're saying that the federal government would have had to effectuate that. [00:10:35] Speaker 04: Correct. [00:10:36] Speaker 04: Well, I think that also squares with the Texas subsection F, which states that it's the federal government that the Secretary shall enter into these agreements and that it should do so. [00:10:45] Speaker 04: And I also want to emphasize that under the Tucker Act, a claimant is not required to show how the payments could have been administered at the time they became owing. [00:10:54] Speaker 04: I think if that were the case, the Maine community would have come out the other way. [00:10:57] Speaker 04: I don't think there's any question in that case. [00:11:00] Speaker 04: The Secretary of Health and Human Services could not [00:11:02] Speaker 04: have made those payments. [00:11:04] Speaker 04: The question is limited to the question, as the court put it in Maine community, whether the statute can be fairly interpreted as requiring payment to the claimant. [00:11:17] Speaker 02: And I think that's quite clear from the text of subsection B. Your argument is that section B requires the government to make a direct payment to individuals. [00:11:28] Speaker 04: The argument is that subsection B gives claimants a right to the payments under the statute. [00:11:34] Speaker 02: But section F forecloses the government from making payments any way other than through states, right? [00:11:47] Speaker 02: It says, the state shall provide the assistant through agreements with states. [00:11:53] Speaker 04: Correct. [00:11:54] Speaker 02: How would the government make a direct payment without violating section F? [00:12:00] Speaker 04: Well, two responses to that, Your Honor. [00:12:02] Speaker 04: First is that, of course, subsection F, again, does not state that it has to be the state of the covered individual. [00:12:08] Speaker 04: So again, cross-state administration was a possibility. [00:12:11] Speaker 02: But that's not my question. [00:12:13] Speaker 04: So I don't think it would violate the statute because of the discretionary language in subsection F stating that the secretary has discretion to determine whether a state has an adequate system. [00:12:27] Speaker 04: Once a state no longer has an adequate system, it no longer has to enter into an agreement with that state. [00:12:32] Speaker 02: So the government would then, on your theory, would have to make inquiry of [00:12:39] Speaker 02: every state as to whether they are prepared to enter into these agreements or not. [00:12:46] Speaker 02: And if they find a state where the state is not prepared to enter into this agreement or not capable, then the government could make payments through that state to anybody they wanted. [00:13:01] Speaker 02: I'm just trying to work my way through this language. [00:13:04] Speaker 04: No, of course. [00:13:05] Speaker 04: Well, I think subsection F does require the government to make an inquiry, correct, whether the state has an adequate system at all. [00:13:13] Speaker 04: And in the event that the state does not have an adequate system, the statute contemplates that a state that does have an adequate system would administer those benefits. [00:13:22] Speaker 04: And we don't think there's anything that prohibited direct federal administration, of course, [00:13:26] Speaker 04: The American Rescue Plan Act provided appropriations that could have been used for direct federal administration. [00:13:33] Speaker 04: And so we think there are a few options available to the secretary. [00:13:37] Speaker 04: And so that there was simply no basis in the statute for finding an implicit limitation on subsection B, limiting the availability of those benefits to individuals whose own state had entered into an agreement. [00:13:49] Speaker 04: I know I'm into my rebuttal time. [00:13:51] Speaker 04: And if there are no further questions, I'd like to reserve the remainder of my time. [00:13:54] Speaker 03: And to answer your question, we'll give you [00:13:56] Speaker 03: Give me about three minutes. [00:14:01] Speaker 03: Thank you. [00:14:01] Speaker 03: Mr. Myers. [00:14:06] Speaker 00: Good morning, Your Honors. [00:14:07] Speaker 00: Stephen Myers from the Justice Department on behalf of the United States. [00:14:12] Speaker 00: Plaintiff's Little Tucker Act claim fails on the merits because Congress was clear in Section 9021 that the payment of benefits was conditioned on the existence of a state agreement. [00:14:22] Speaker 00: And it incorporated regulations under the Stafford Act making clear that payments could not be paid in any other way. [00:14:29] Speaker 00: The statute does not require or indeed even permit direct federal administration of the program. [00:14:34] Speaker 00: So this court should affirm the judgment of the district court. [00:14:38] Speaker 00: I'll start by talking about subsection F. The language is clear as day. [00:14:42] Speaker 00: Again, the secretary is to provide the assistance that's authorized under B through agreements with states. [00:14:50] Speaker 00: That's F1. [00:14:51] Speaker 00: F2 then goes on to explain that there shall be paid to each state which has entered into an agreement the funds that are necessary to administer and operate the program. [00:15:01] Speaker 00: And so if Congress wanted to enact a statute that contemplated direct federal administration, it could have done so. [00:15:08] Speaker 00: Indeed, we've pointed to examples where Congress has done exactly that in the trade adjustment assistance program, the unemployment compensation programs for federal employees and ex-servicemen. [00:15:19] Speaker 00: Congress didn't do so here. [00:15:21] Speaker 00: Instead, what Congress did is it modeled the program on the disaster unemployment assistance program under the Stafford Act. [00:15:28] Speaker 00: And it specifically incorporated regulations under that statute that, again, are explicit, that benefits are payable only by states and only when an agreement is in effect. [00:15:40] Speaker 00: Congress obviously knew about those regulations. [00:15:42] Speaker 00: It incorporated them expressly. [00:15:44] Speaker 00: And if Congress didn't want them to apply, it's reasonable to assume that Congress would have said so. [00:15:49] Speaker 03: That's 625, right? [00:15:52] Speaker 00: 625.12b1, yes, Your Honor. [00:15:56] Speaker 00: So that's subsection F, that's subsection H. Subsection G is the appropriation, which is what authorizes the making of payments under the appropriations clause. [00:16:06] Speaker 00: And again, that is an appropriation to make payments to states. [00:16:09] Speaker 00: So the statute is just clear over and over and over again that this is how Congress expected the program to work. [00:16:16] Speaker 00: Under subsection A, you have to provide initial documentation to a state. [00:16:21] Speaker 00: Under subsection C, you need to continue providing, week by week, a recertification of your eligibility to a state. [00:16:30] Speaker 00: I think it's worth observing that even if the court weren't persuaded by everything I've been saying so far, [00:16:36] Speaker 00: Plaintiffs still don't allege that they actually complied with that requirement. [00:16:40] Speaker 00: That's at C6 of the statute. [00:16:43] Speaker 00: So even if plaintiffs were correct that either Texas couldn't have withdrawn or that the federal government was required to engage another state to administer the program on Texas's behalf, there would still be this requirement under C6 to keep submitting a certification of eligibility. [00:17:01] Speaker 00: And plaintiffs don't allege that they did that. [00:17:05] Speaker 00: With respect to subsection B, Judge Sol, I think Your Honor gets it exactly right, which is that the Supreme Court has said that we need to read statutes as a whole. [00:17:14] Speaker 00: We don't take provisions in isolation. [00:17:17] Speaker 00: And what subsection B is really doing is it's distinguishing this program in certain limited respects from the Stafford Act. [00:17:24] Speaker 00: So under the Stafford Act, the president has discretion to declare or not declare a natural disaster. [00:17:29] Speaker 00: That's why it says that the president is authorized to make these payments. [00:17:34] Speaker 00: Under subsection B, it was Congress that decided that COVID was a national emergency that required a program like this. [00:17:42] Speaker 00: And so Congress made that determination. [00:17:44] Speaker 00: So the president lacks that aspect of discretion. [00:17:47] Speaker 00: That's what shall means in B. But nevertheless, the shall in B needs to be read in harmony with the shall in F. [00:17:55] Speaker 00: which again says that this program is run by states, payments are made to states. [00:18:02] Speaker 00: With respect to the possibility of cross-state administration, there are a few points I just want to very briefly highlight. [00:18:09] Speaker 00: The first is that there is no threshold obligation on the secretary to go out and find a state where Texas or another state decides it doesn't want to participate. [00:18:20] Speaker 00: And indeed, in a case like this, where 20 states ultimately withdrew, [00:18:25] Speaker 00: It would be a massive burden to impose on the secretary to somehow persuade the other 30 states to do this. [00:18:32] Speaker 00: The statute simply doesn't say that. [00:18:35] Speaker 00: And if that's wrong, there'd be no incentive on any state to actually participate in this program. [00:18:40] Speaker 00: Because every state would know that the secretary would either do it for them, or the United States would wind up on the hook under the judgment fund. [00:18:48] Speaker 00: And that's not the statute that Congress wrote. [00:18:50] Speaker 00: And finally, even if that's wrong, even if the United States did breach an obligation, which it didn't, to go find another state, that still wouldn't require direct payments to the plaintiffs. [00:19:01] Speaker 00: It would mean that the United States, under plaintiff's theory, breached an obligation to take some agency action. [00:19:06] Speaker 00: That's an APA claim, not a little Pucker Act claim. [00:19:10] Speaker 00: I'm happy to answer any questions that the court has or otherwise just ask for an affirmative. [00:19:16] Speaker 03: Thank you. [00:19:21] Speaker 03: Thank you very much. [00:19:22] Speaker 03: Thank you. [00:19:22] Speaker 04: Thank you, Your Honor. [00:19:27] Speaker 04: I just want to address a few points. [00:19:29] Speaker 04: The first is subsection H. I think the best way to understand how the disaster unemployment assistance regulations apply [00:19:37] Speaker 04: is the language of subsection H itself, which said that those regulations apply except as otherwise provided under the Pandemic Unemployment Assistance Statute or to the extent they conflict. [00:19:49] Speaker 04: The Pandemic Unemployment Assistance Statute has its own comprehensive eligibility criteria. [00:19:54] Speaker 04: The single subsection that the government relies on relates to eligibility. [00:19:59] Speaker 04: And so there's simply no need to look to these regulations. [00:20:01] Speaker 04: And to the extent that they do conflict by restricting access to the program beyond what the Pandemic Unemployment Assistance Statute provides, that's a conflict. [00:20:11] Speaker 04: the regulation simply doesn't apply. [00:20:13] Speaker 04: The government points to the Disaster Unemployment Assistance Statute as perhaps a model for pandemic unemployment assistance. [00:20:22] Speaker 04: But of course, the Congress departed in a significant way from the Disaster Unemployment Assistance Statute by obligating the secretary to provide benefits to individuals rather than creating a discretionary [00:20:40] Speaker 04: program. [00:20:43] Speaker 04: The government says that there is no requirement to figure out how to make these payments, but of course subsection B is a requirement for the secretary to pay unemployment assistance to covered individuals. [00:20:59] Speaker 04: And I really want to emphasize that I think the practicability concerns are these sort of speculations. [00:21:08] Speaker 04: are a red herring when it comes to the question under the Tucker Act and the statutory interpretation question is whether there was an implicit limit on subsection B and there's just nothing in the statute that says that and that is especially notable given the language of the other unemployment compensation programs [00:21:27] Speaker 04: enacted in the same title of the same organic statute which were explicit about limiting access to those programs based on a state's desire to participate, language which is deliberately omitted from the pandemic unemployment assistance provisions. [00:21:41] Speaker 04: Um, and just to conclude, you know, in the pandemic unemployment assistance provisions, Congress made a promise to everybody unemployed due to COVID-19 that they would receive these benefits for the entire duration of the program. [00:21:55] Speaker 04: Uh, Congress, the federal government violated that, uh, promise and the Tucker act is designed to remedy exactly those types of violations. [00:22:04] Speaker 04: And for this reason, we asked the court to reverse and remand. [00:22:08] Speaker 04: Thank you. [00:22:09] Speaker 03: Thank you counsel.