[00:00:00] Speaker 03: starting. [00:00:00] Speaker 01: Thank you. [00:00:03] Speaker 01: Hear ye, hear ye. [00:00:04] Speaker 01: All persons having business with the Honorable, the United States Court of Appeals for the Ninth Circuit will now draw near, give your attention and you will be heard. [00:00:13] Speaker 01: God save these United States and this Honorable Court. [00:00:18] Speaker 05: Good morning, and welcome to the Ninth Circuit Court of Appeals. [00:00:21] Speaker 05: My name is Morgan Christens. [00:00:22] Speaker 05: I'm one of the judges on the circuit court, and we're here today virtually gathered for an oral argument. [00:00:29] Speaker 05: I need to start with a sound test, if you don't mind. [00:00:32] Speaker 05: I'll just start first. [00:00:34] Speaker 05: Judge Piaz joining us from Pasadena, I believe, today. [00:00:38] Speaker 05: I can see you, Judge Piaz. [00:00:39] Speaker 05: Can you still hear me? [00:00:41] Speaker 05: And I can hear you, Judge. [00:00:41] Speaker 05: Great. [00:00:42] Speaker 05: And Judge Desai? [00:00:43] Speaker 05: Good morning. [00:00:44] Speaker 05: Good morning. [00:00:45] Speaker 05: So I can see and hear you too. [00:00:47] Speaker 05: I can see two lawyers. [00:00:48] Speaker 05: Gentlemen, could I just get thumbs up if you can see and hear us okay? [00:00:53] Speaker 05: Looks like thank you. [00:00:55] Speaker 05: And good morning to both of you. [00:00:57] Speaker 05: We'll go ahead and get started then we're here. [00:00:58] Speaker 05: This is a time set for oral argument in the court versus Trump. [00:01:02] Speaker 05: That's case 25-4249. [00:01:04] Speaker 05: We previously issued an order in this case. [00:01:09] Speaker 05: and have been asked to reconsider it, an order denying a motion for stay pending appeal and merits appeal of the preliminary injunction from the district court. [00:01:22] Speaker 05: With that, I am ready and I think my colleagues are ready to hear argument from counsel. [00:01:31] Speaker 00: Please record that Yakov Roth on behalf of defendants. [00:01:34] Speaker 00: I'm gonna try to reserve a couple of minutes for rebuttal. [00:01:37] Speaker 05: Sir, could I get you to speak up or get closer to your microphone? [00:01:44] Speaker 00: Is that better, Your Honor? [00:01:46] Speaker 05: A little, but you're going to have to keep your voice up, I think, sir. [00:01:49] Speaker 05: Thank you. [00:01:54] Speaker 00: All right, may it please the court, Yakov Roth on behalf of defendants, and I'm going to try to reserve a couple of minutes for rebuttal. [00:02:00] Speaker 00: Thank you for hearing from me a second time in this case. [00:02:04] Speaker 00: I do realize that the court addressed largely the same issues at the stay stage, but I'm going to try to convince the court to resolve them differently now, in part based on some intervening authority from the Supreme Court and in part based on the different standards that apply at the merit stage. [00:02:23] Speaker 00: So as to the intervening authority, that relates to the Tucker Act's preclusion issue. [00:02:29] Speaker 00: Because the court knows after the stay order was issued, the Supreme Court decided the NIH case, which granted a stay of a very similar injunction on the ground that the Tucker Act precludes APA claims challenging grant terminations as arbitrary and capricious. [00:02:50] Speaker 00: And in light of NIH, the plaintiffs in their merits brief no longer defend the rationale from this court stay order. [00:03:00] Speaker 00: They appear to concede that if the University of California as the contracting party had tried to bring these very claims in district court, those would have been precluded. [00:03:12] Speaker 00: The University of California would have had to go to the court of federal claims to seek money damages. [00:03:18] Speaker 04: And so if it's brought their APA claims or bring their APA claims challenging the form termination in the court of federal claims, would you concede jurisdiction in that court? [00:03:32] Speaker 00: Well, they wouldn't be APA claims in the court of federal claims. [00:03:35] Speaker 00: They would be contract claims and they would have talking about the researchers. [00:03:40] Speaker 04: So not not the grantees, the researchers, which are the plaintiffs in this case, if they were to bring claims in the court of federal claims, your position would be that they that those claims couldn't be heard there because in fact, they are not contracted parties. [00:03:57] Speaker 04: They're not they're not parties to the contract. [00:03:59] Speaker 04: Is that correct? [00:04:00] Speaker 00: I think that's probably what we would argue in that case. [00:04:02] Speaker 04: OK. [00:04:03] Speaker 04: So is it your position that no court has jurisdiction over plaintiffs' APA claims? [00:04:08] Speaker 00: Yes. [00:04:09] Speaker 00: No court has jurisdiction over these plaintiffs' claims, because these plaintiffs' claims are actually disguised breach of contract claims. [00:04:18] Speaker 00: That's the rationale of NIH. [00:04:20] Speaker 00: And the Tucker Act limits both who can sue for those claims, where they can sue, and the relief they can get. [00:04:27] Speaker 00: And so, for example, if the University of California had come to the district court and said, we don't like the breach of, you know, we think these contracts were breached or terminated improperly and we want specific performance and we can't get that from the Court of Federal Claims. [00:04:44] Speaker 00: They can only give us money damages. [00:04:46] Speaker 00: So you can't send us there. [00:04:47] Speaker 00: We have no ability to get that relief there. [00:04:50] Speaker 00: That would not work. [00:04:51] Speaker 00: This court rejected exactly that argument in North Star, Alaska. [00:04:55] Speaker 04: Point is so so I guess my question with and I understand your argument with respect to. [00:05:02] Speaker 04: the universities and their ability to bring either the contract claims under the Tucker Act in the court of federal claims and perhaps other claims for non-monetary damages, perhaps elsewhere. [00:05:17] Speaker 04: What I'm interested in is for this particular class of plaintiffs, which are not the universities, but are the researchers, if it's your position that no court has jurisdiction over their APA claims, [00:05:29] Speaker 04: then what do we do with our recent holding in community legal services where we held that a district court cannot be deprived of jurisdiction by the Tucker Act when no jurisdiction lies in the court of federal claims? [00:05:44] Speaker 00: So let me first address our position, sort of make clear our position, and then I'll talk, I'm happy to talk about community legal services. [00:05:51] Speaker 00: So first to be clear, yes, our position is these plaintiffs cannot bring these APA claims anywhere. [00:05:58] Speaker 00: The only claims that can be brought are the claims that are cognizable under the Tucker Act in the Court of Federal Claims. [00:06:03] Speaker 00: And we think it would be very strange and counterintuitive if the contracting parties were limited to damages relief only under the Tucker Act in the court of federal claims. [00:06:15] Speaker 00: They couldn't come in and get a reinstatement order anywhere. [00:06:19] Speaker 00: It would be very strange if third parties who are further removed from the contract [00:06:24] Speaker 00: could evade all of those limits and actually get a reinstatement order of the grants by coming to federal district court. [00:06:31] Speaker 00: We think that's sort of the whole point of the implied preclusion principle under the APA is to prevent circumvention of the limits that apply under specialized review schemes like the Tucker Act. [00:06:45] Speaker 00: And we think the Supreme Court decision in block is right on point for this. [00:06:50] Speaker 00: The court there said, when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded. [00:07:06] Speaker 00: And in fact, they said it was impliedly precluded there. [00:07:09] Speaker 00: And we think that principle applies equally here. [00:07:11] Speaker 00: In terms of community legal services, [00:07:14] Speaker 00: The principal rationale and sort of the starting point of the analysis that the court gave in that case was that they weren't contract claims at all. [00:07:22] Speaker 00: Not because they weren't styled as contract claims, but the court said the thrust of the argument and the claim there was that the agency had a statutory and regulatory duty to provide certain funding services and funding for those services. [00:07:36] Speaker 00: and it wasn't doing it. [00:07:38] Speaker 00: And the court said that you could bring that claim whether there was any contract, no contract, the contract is irrelevant. [00:07:43] Speaker 00: Your claim is that they have a duty under the statute to provide services and they're not providing them. [00:07:48] Speaker 05: Which is why NIH, which is why NIH isn't in conflict with community legal services. [00:07:54] Speaker 05: They're not contract claims there. [00:07:56] Speaker 05: Is that [00:07:56] Speaker 05: That's the government's concession today. [00:07:58] Speaker 05: Yes. [00:07:59] Speaker 00: Well, we don't to be clear I don't think we agree with community legal services, but we also think this case is much closer to My question was my question was that the government agrees that the claims there and the premise of community legal services Is that they weren't contract claims at all? [00:08:16] Speaker ?: Yeah [00:08:17] Speaker 00: That's how I read that opinion. [00:08:19] Speaker 00: All right. [00:08:20] Speaker 05: I just wanted to clarify your position today. [00:08:22] Speaker 05: Thank you. [00:08:23] Speaker 02: Mr. Roth? [00:08:24] Speaker 02: So when NIH, there was a concurrence by Judge Barrett. [00:08:32] Speaker 02: And when I read her concurrence carefully, she seemed to hedge a bit about what she would do in the event that one of the parties could not bring a claim. [00:08:47] Speaker 02: in the court of federal claims. [00:08:50] Speaker 02: In other words, if they had no position or no right to bring a claim in the court of federal claims, you just suggested that these plaintiffs would be unsuccessful at the get go. [00:09:04] Speaker 02: What do we take from Justice Barrett's concurrence? [00:09:11] Speaker 00: Well, I'm not sure which part of the currency your daughter is referring to. [00:09:15] Speaker 00: What I recall from the concurrence was that Justice Barrett was distinguishing challenges to the termination of a grant from prospective challenges to an agency guidance or [00:09:26] Speaker 00: you know, other sort of document that dictates policy going forward. [00:09:30] Speaker 00: And she said, if you're just challenging a policy decision that's prospective, that's a standard APA claim. [00:09:36] Speaker 00: But if what you're asking for is reinstatement of a grant that was terminated, that is a contract claim, whatever you style it. [00:09:44] Speaker 00: And that has to go to the Court of Federal Claims. [00:09:46] Speaker 05: I think both my colleagues are getting at the same point, which is that [00:09:50] Speaker 05: There's a strong presumption of reviewability, hence Judge Desai's question, I think, that the government all but conceded, and today I think you've taken, last time, and I think you've taken the position this time, that these folks, these plaintiffs could not bring this claim in the court of federal claims. [00:10:04] Speaker 05: And so with that in mind, could you circle back to Judge Pius's question? [00:10:08] Speaker 00: Yes, Your Honor. [00:10:10] Speaker 00: It's very important. [00:10:12] Speaker 00: There is reviewability, but there is reviewability at the behest of certain persons. [00:10:17] Speaker 00: Contracting parties, intended third party beneficiaries, that's the principle of the Tucker Act under Court of Federal Claims precedent. [00:10:25] Speaker 00: And as in block, if the statute allows for review by certain people, that doesn't mean everyone else gets to go around it and go to federal court and actually get more [00:10:34] Speaker 00: than the contracting parties can get. [00:10:37] Speaker 04: The difficulty that I'm having with this argument is that the Supreme Court in its NIH decision could have but didn't make this distinction. [00:10:49] Speaker 04: So where there is a group of plaintiffs that included both grantees and researchers, there was no discussion about the [00:11:00] Speaker 04: the researchers and what would happen to their claims if they were to try to bring those in the court of federal claims. [00:11:10] Speaker 04: And so the sort of absence of any direction with respect to those individuals leaves me to think that the court simply did not address that issue and sort of broadly characterized the plaintiffs as only those that had contract claims that could be brought in the court of federal claims. [00:11:31] Speaker 00: Your honor, I don't disagree that NIH orders don't specifically address this issue. [00:11:36] Speaker 00: It's true that the plaintiffs in NIH fell into both categories, and the court didn't issue a stay only as to one group and not the other. [00:11:44] Speaker 00: So I'm not sure that you would read into it that the plaintiffs are right as opposed to that we're right or just that the court didn't address it. [00:11:51] Speaker 00: I do think the court addressed it in block, and I do think this court addressed virtually the same question in North Star, Alaska with respect to the remedial limit. [00:11:59] Speaker 00: I don't see a big difference between the remedial limits of the Tucker Act, which the court said you can't evade by going through the APA, and who can bring suit limits of the Tucker Act, which you also should not be able to evade. [00:12:12] Speaker 02: Go ahead, finish up. [00:12:16] Speaker 00: No, that's fine. [00:12:18] Speaker 02: Mr. Roth, let me ask you this. [00:12:21] Speaker 02: Do you read the plaintiff's complaint as challenging a policy? [00:12:27] Speaker 00: No, I don't think so. [00:12:29] Speaker 00: I don't think there is a policy that they're challenging. [00:12:31] Speaker 00: They're challenging and the injunction they got is an injunction vacating the terminations of the grants and requiring those grants to be turned back on. [00:12:42] Speaker 02: Didn't each one of the agencies after the executive orders were issued sort of adopt a policy implementing the executive orders? [00:12:52] Speaker 00: I don't know, Your Honor, if they did or didn't, but that's not what the injunction enjoins or vacates. [00:12:57] Speaker 00: So the injunction says you've got to turn the grants back on. [00:13:02] Speaker 00: And under Justice Barrett's controlling concurrence, those are the claims that have to go through the Tucker Act process. [00:13:09] Speaker 02: Well, if they're challenging the underlying policy of implementing [00:13:15] Speaker 02: that led to the termination of the grants. [00:13:18] Speaker 02: It seems to me that they would be able to pursue those claims at a minimum in the district court. [00:13:25] Speaker 00: If there's a policy document, they could challenge a policy and say, you have a policy of terminating DEI-related grants. [00:13:34] Speaker 00: We think that policy is arbitrary and capricious. [00:13:36] Speaker 00: It should be vacated going forward. [00:13:38] Speaker 00: They could bring that claim, but Justice Barrett says that would not [00:13:41] Speaker 00: lead to the reinstatement of particular grants that had been terminated. [00:13:45] Speaker 00: That's her whole kind of point in the concurrence was that those are separate things. [00:13:50] Speaker 00: If that's the relief you want, then you have to go to the court of federal claims. [00:13:54] Speaker 00: And that is the relief they got here. [00:13:56] Speaker 02: Well, as I read her concurrence, she contemplates proceedings in two different courts. [00:14:02] Speaker 02: It seems kind of odd, but you know, that's... Yeah, I mean, yeah, she does. [00:14:07] Speaker 05: Can I ask a follow-up question? [00:14:08] Speaker 05: Sir, could I ask a... I'm just mindful of the clock here. [00:14:11] Speaker 00: Yes. [00:14:11] Speaker 05: I'd like to ask a follow-up question regarding Judge Paez's question about whether this was an attempt to challenge a policy. [00:14:22] Speaker 05: Your briefing repeatedly says that these were... that what the government was doing here was terminating programs. [00:14:28] Speaker 05: and I'm looking for in the record for any program that was eliminated. [00:14:32] Speaker 05: Can you point me to one? [00:14:34] Speaker 00: They were terminating grants. [00:14:35] Speaker 00: They were not terminating programs. [00:14:36] Speaker 00: There was no program that was terminating. [00:14:37] Speaker 05: Exactly. [00:14:38] Speaker 05: There was no grant. [00:14:39] Speaker 05: So what I read the record to be doing, and I think this is a very important point, at least for me, is that a number of grants were targeted for termination on a specific criteria, and we have a record about what that criteria was, and that those grants appeared across a swath of programs. [00:14:56] Speaker 00: Yes, that's right. [00:14:58] Speaker 05: And the programs were not terminated. [00:15:00] Speaker 00: That's right. [00:15:01] Speaker 05: All right. [00:15:02] Speaker 02: Mr. White, can I shift your focus just a bit to the injunction itself? [00:15:10] Speaker 02: So in your motion for reconsideration, you say, hey, the court needs to reconsider what the district court did in terms of granting an injunction with respect to the form termination class. [00:15:26] Speaker 02: Now, the district court said that the two classes that she identified and certified, that they're overlapping classes, right? [00:15:37] Speaker 02: So that led me to think that though some of these form terminations, members of that class, their grants may have been terminated on the basis of, let's just say, doge. [00:15:55] Speaker 02: efficiency matters. [00:15:57] Speaker 02: It also suggests that some of those grants were also terminated for DEI reasons. [00:16:06] Speaker 02: If we were to agree with you that NIH requires that the injunction be modified, how would the district court fashion relief along those lines? [00:16:15] Speaker 02: What would you suggest? [00:16:19] Speaker 00: Well, I think the district court would have to figure out which, who's a member of class A and who's a member of class B. And if you're a member of either, right, if you're a member of both, then it wouldn't help us to just get rid of the APA claims. [00:16:31] Speaker 00: We also have to get rid of the first amendment claims. [00:16:34] Speaker 00: So I agree with your honor that I need to take on the first amendment piece and with the clock running, I will turn to that if your honor permits. [00:16:41] Speaker 00: Sure. [00:16:42] Speaker 02: Because I was just wondering, you know, how would the district court fashion relief? [00:16:51] Speaker 00: I think the relief would be if the court said that the form termination class claims, APA claims, are precluded, we would be left with the First Amendment class and an injunction that covered the grants that had been terminated for members of that class. [00:17:09] Speaker 00: So it would be a different group. [00:17:11] Speaker 00: Now, we would have to figure out who's in one or the other, but we have to do that, I think, anyway, in order to comply with the injunction. [00:17:16] Speaker 00: It hasn't been a problem. [00:17:18] Speaker 00: that I'm aware of. [00:17:20] Speaker 00: But let me address the First Amendment on the merits because part of the reason we didn't press the Tucker Act argument on the First Amendment claims is because we think the First Amendment claims are so without merit that it's easier to address them on the merits. [00:17:32] Speaker 00: I understand the plaintiff's theory to be that the government cannot terminate grants based on viewpoint. [00:17:38] Speaker 00: Which, if true, means that the executive orders are, in relevant part, unconstitutional. [00:17:44] Speaker 00: And I think that really has to be wrong. [00:17:46] Speaker 00: So imagine we're the National Science Foundation, and I get two grant applications. [00:17:53] Speaker 00: And one is to research how to help kids stop smoking, and the other is to research health benefits of smoking. [00:18:00] Speaker 00: The First Amendment does not require NSF to treat those two applications equally. [00:18:05] Speaker 00: NSF can say pro-smoking research is not our priority, we're not gonna fund it. [00:18:10] Speaker 00: And that's clearly viewpoint discrimination, it is not a violation of the First Amendment. [00:18:16] Speaker 00: I don't think that's any different from the EPA saying we're not interested in funding climate justice anymore, or the NEH saying we're not interested in funding DEI-related research anymore. [00:18:27] Speaker 00: They're not saying you can't do the research. [00:18:29] Speaker 05: Can I interject right there? [00:18:30] Speaker 00: Yes. [00:18:31] Speaker 05: That's why I asked the question about the programs. [00:18:34] Speaker 05: That's not what happened here. [00:18:35] Speaker 05: There wasn't any termination of a program of the kind you're describing. [00:18:39] Speaker 05: That's not what these decisions were. [00:18:41] Speaker 05: The record shows that these programs continued, the programs continued, but that specific grants were targeted for termination within those programs, sir. [00:18:50] Speaker 00: Right, so I agree with your honor, but I don't understand why that matters. [00:18:54] Speaker 05: It matters because once they decide to fund, they can't discriminate on the basis of viewpoint. [00:19:01] Speaker 05: DEI, as we talked about last time, I don't take a lot of your time. [00:19:03] Speaker 05: You're shaking your head no, but if you could listen to my question, I would appreciate it. [00:19:07] Speaker 05: DEI is inherently directional, right? [00:19:11] Speaker 05: So when the government's brief, and this is a sub question, maybe you can clear up for me, and you're going to have plenty of time. [00:19:16] Speaker 05: It's a very significant case, and we'll give, of course, the time that is required. [00:19:19] Speaker 05: So don't worry about that. [00:19:22] Speaker 05: But DEI is inherently directional. [00:19:23] Speaker 05: So one thing as a premise, it would be helpful to me to understand, when the government shorthands DEI to equity, [00:19:32] Speaker 05: and leaves out the word inclusion, that meaningfully changes things. [00:19:35] Speaker 05: And I don't know if you're trying to signal that you don't agree with the definition of DEI. [00:19:40] Speaker 00: I'm not trying to signal that. [00:19:41] Speaker 00: I think we were just using the language from the executive order, which said equity. [00:19:45] Speaker 05: The direction, so Mr. McDonald's declaration, for example, is very clear that he targets, he's looking at grants that focus on DEI inclusion. [00:19:53] Speaker 05: He uses the word inclusion. [00:19:55] Speaker 05: Yeah. [00:19:55] Speaker 05: It's directional. [00:19:56] Speaker 05: So I'm trying to figure out if that is a point of contention here. [00:19:59] Speaker 05: It doesn't seem to me it should be given this record. [00:20:01] Speaker 00: It's not a point of contention. [00:20:02] Speaker 00: I'm not disagreeing with that. [00:20:04] Speaker 00: What I'm trying to suggest is that's the same thing as saying we're not going to fund pro-smoking advocacy or pro-smoking research. [00:20:12] Speaker 05: If that's the point of contention, then let's move to that. [00:20:15] Speaker 05: Because I think the way the executive orders were implemented seems to me to be very clearly focused on DEI, the inclusion part, which is viewpoint. [00:20:24] Speaker 05: It is directional, and we can talk about that if you want, but I'm just relying on the definitions that we talked about last time. [00:20:31] Speaker 05: Which is why it's important to me, and I want to give you an opportunity to explain the government's position on this, sir. [00:20:37] Speaker 05: That's why it's important to me that these programs were not terminated. [00:20:40] Speaker 05: Instead, selective grants were terminated within those programs based on DEI, which is a viewpoint. [00:20:47] Speaker 00: So let me try to, I understand your question, I think. [00:20:50] Speaker 00: So let me try to explain it. [00:20:51] Speaker 00: The programs here are pretty broad, selective grant programs on general topics, like, you know, for the EPA, the environment, right? [00:21:02] Speaker 00: For NEH, it's very broad, humanity. [00:21:03] Speaker 00: So you have this broad program of, we're gonna select grants and fund them on a competitive, selective basis. [00:21:12] Speaker 00: It's not all comers, you know, we're gonna give money to everybody. [00:21:15] Speaker 00: It's selective. [00:21:16] Speaker 00: So if you have a selective grant program, you can discriminate based on viewpoint when you're choosing, I'm going to fund this one and I'm not going to fund that one. [00:21:27] Speaker 05: On this point, I think your brief relies on Finley and this is the distinction in Rosenberger and Finley. [00:21:32] Speaker 05: Is that correct? [00:21:33] Speaker 00: Yes. [00:21:34] Speaker 05: OK, so I think you think the distinction between those two cases is whether there is a competitive process or not. [00:21:41] Speaker 00: That is what Finley said in distinguishing Rosenberger. [00:21:45] Speaker 05: Actually, if you keep reading and read all of Finley, I think this really comes to the nub of it. [00:21:49] Speaker 05: So I'm very anxious to hear your response to this point. [00:21:52] Speaker 05: I think if you keep reading with Finley, what the Supreme Court tells us there is that it's the nature of the challenge at issue in the case that distinguishes the cases or that dictates the outcome there. [00:22:09] Speaker 00: So there's two parts of Finley, Your Honor. [00:22:12] Speaker 00: There's one part that says the Supreme Court is saying the Ninth Circuit applied Rosenberger. [00:22:18] Speaker 00: And they say that's wrong because Rosenberger was a limited public forum case. [00:22:23] Speaker 00: This is not a limited public forum because it's competitive. [00:22:26] Speaker 00: And therefore, Rosenberger doesn't apply. [00:22:29] Speaker 00: So it's the same, I think Finley corrected the same error about the reach of Rosenberger [00:22:36] Speaker 00: as we're dealing with here. [00:22:38] Speaker 05: So you don't draw any distinction, do you? [00:22:40] Speaker 05: What about, forgive me for interrupting, I thought you were, it's delay, there's a bit of a delay, forgive me. [00:22:45] Speaker 05: But the distinction I think the Supreme Court calls out there is whether there's an as applied challenge. [00:22:50] Speaker 05: And Finley goes on to talk about if we had an as applied challenge. [00:22:54] Speaker 05: In other words, Finley doesn't say that it's impossible to violate the Constitution if the grant selection process is competitive, right? [00:23:03] Speaker 05: It does not say that. [00:23:05] Speaker 00: No, it doesn't say that. [00:23:06] Speaker 00: And I think the way I understand that paragraph, which is the language after distinguishing Rosenberger, there's a language saying, of course, this doesn't mean we're not saying you could never violate the First Amendment by suppressing, leveraging, and so on. [00:23:21] Speaker 00: I understand that to mean what the Supreme Court later explained in USAID. [00:23:26] Speaker 00: And I would suggest the court look at USAID. [00:23:29] Speaker 00: That's from 2013. [00:23:31] Speaker 00: And it draws a pretty clear line. [00:23:33] Speaker 00: In USA, the government said you can have these funds, you cannot use them to promote prostitution, and you've got to commit that you're going to be opposed to prostitution generally. [00:23:45] Speaker 00: And the Supreme Court said the first part is fine. [00:23:48] Speaker 00: It is viewpoint discrimination, but it's fine because it relates to the use of these government funds. [00:23:54] Speaker 00: What you cannot do is leverage that [00:23:57] Speaker 00: to influence speech beyond the scope of what you're funding. [00:24:01] Speaker 05: But that line of cases is not applicable here, right? [00:24:03] Speaker 05: It's not implicated here. [00:24:04] Speaker 05: That's not what the government was doing. [00:24:07] Speaker 00: I agree. [00:24:07] Speaker 00: And I think but I think that leveraging that USAID is talking about is what the Finley dicta is. [00:24:13] Speaker 00: That's the only way to understand the Finley dicta because I've got Finley right in front of me. [00:24:20] Speaker 05: You and I had this conversation a few months ago. [00:24:22] Speaker 05: So I think if you just keep reading, tell me what I'm missing about this. [00:24:26] Speaker 05: When you flip over to page five, you want to read from 586, I think. [00:24:30] Speaker 05: And I'm reading from 587, thus we have no occasion here to address an as applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination. [00:24:40] Speaker 05: If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case. [00:24:51] Speaker 05: You and I have talked about this several times, but how do you, why is this not a problem for the government here? [00:24:58] Speaker 00: So first of all, Finland was saying we're not addressing that. [00:25:01] Speaker 00: So it is dikta in Finland. [00:25:04] Speaker 00: If you read that language in Finland to mean that any time the government engages in viewpoint discrimination in funding grants in a selective grant process, then you've swallowed the rule of Finland. [00:25:16] Speaker 05: I don't read it that broadly, but I do think that you're reading it to say that because this is a competitive grant selection process, the government is good to go. [00:25:24] Speaker 00: Yes. [00:25:26] Speaker 00: As long as as long as you are only limiting what the funds can be used for and not going beyond the scope of the program because I think otherwise USAID would have come out the other way to on the first I think you've answered my question and I and I appreciate the clarification Mr. Roth let me just can I just follow it up just a little bit so as I understand your argument there's no distinction between the decision the initial decision to fund and [00:25:54] Speaker 02: And the situation that these grantees, these researchers are in, the plaintiffs are in now, which is a termination of their grant. [00:26:02] Speaker 02: In your view, same thing is going, same things are taking place. [00:26:08] Speaker 02: First amendment standpoint, yes. [00:26:11] Speaker 02: Okay. [00:26:11] Speaker 02: Even though they terminate, they're terminating grants because they further or they promote or whatever DEI. [00:26:21] Speaker 02: Right. [00:26:22] Speaker 02: I think my position is... Why isn't that a penalty? [00:26:25] Speaker 00: I mean, why aren't you trying... The government is trying to suppress, penalize speech. [00:26:31] Speaker 00: It's not a penalty and it's not a suppression. [00:26:33] Speaker 00: It's a decision not to continue funding. [00:26:36] Speaker 00: And if you can make that decision at time A, I don't understand why the First Amendment would say you're no longer allowed to make it at time B. Can I stop you right there? [00:26:45] Speaker 05: That's another premise. [00:26:47] Speaker 05: Forgive me. [00:26:47] Speaker 05: But I think I have a follow-up to Judge Pius's point, which is the government repeatedly makes this point that you're making now, that because the grants were [00:26:57] Speaker 05: awarded on the basis of DEI. [00:27:00] Speaker 05: They can be discontinued on the basis of DEI. [00:27:02] Speaker 05: But we don't have evidence in the record that shows us that these grants were awarded because they mentioned DEI. [00:27:09] Speaker 05: There's a whole horse to factors, as there would be in any grant application process. [00:27:14] Speaker 05: So what's the basis for the position that you just took in response to Judge Paez's question? [00:27:20] Speaker 00: I'm just making a legal point that if it's permissible, as we maintain it is, and for the government to say, we're going to fund anti-smoking but not pro-smoking grants, then a new administration can come in and say, actually, going forward, we're changing our mind about that. [00:27:38] Speaker 05: Okay, but that elides the question. [00:27:39] Speaker 05: That elides the question. [00:27:40] Speaker 05: Let me just try this one more time. [00:27:43] Speaker 05: established there was no program that was terminated. [00:27:46] Speaker 05: And in response to Judge Piaz's question, you're now arguing that since these grants were awarded on the basis of DEI, they can be terminated on the basis of DEI, which seems to liken it to a program. [00:27:57] Speaker 05: We don't know. [00:27:58] Speaker 05: Here's the point. [00:27:59] Speaker 05: We don't know that these grants were awarded on the basis of the fact that they mentioned DEI. [00:28:03] Speaker 05: There was a whole host of criteria. [00:28:05] Speaker 05: So what is the basis for your assertion that they were awarded because they mentioned DEI? [00:28:10] Speaker 00: Your Honour, I'm not making a factual claim about why they were initially funded. [00:28:14] Speaker 00: I'm making a legal argument that it is permissible for the government to discriminate based on viewpoint when it initially awards grant money. [00:28:23] Speaker 00: And that's why it can say, I want to fund one side and not the other side. [00:28:28] Speaker 00: If that is true, then I don't see any First Amendment distinction between that and a decision to terminate the funding on the same basis. [00:28:38] Speaker 05: Can I ask a follow-up? [00:28:40] Speaker 05: In this particular case, not just a hypothetical, does it change anything that the enabling legislation requires that in selecting individuals for these grants, the chairperson shall give particular regard to scholars and educational and cultural institutions that have traditionally been underrepresented? [00:28:59] Speaker 00: That relates to their statutory claim. [00:29:01] Speaker 00: I don't think it makes a difference for their First Amendment claim. [00:29:04] Speaker 00: From the First Amendment standpoint, viewpoint discrimination is permissible at the time of the initial funding. [00:29:10] Speaker 00: And if it's permissible at the time of the initial funding, it's also permissible for a new administration to change that in a prospective way. [00:29:16] Speaker 00: And that's why, for example, if the current administration entered a bunch of grants to study the benefits of gun ownership, [00:29:24] Speaker 00: you know, 10-year grant to study how great guns are, and a new administration came in, they could terminate that and say, we're not interested in funding pro-gun research anymore. [00:29:32] Speaker 00: Going forward, those are terminated. [00:29:33] Speaker 00: That would not violate the First Amendment. [00:29:35] Speaker 05: Okay, I'm going to stop you because we've taken a whole lot of your time and I want to just make sure you're seven minutes over, but I want to make sure that Judge Piaz and Judge Desai got their questions answered at this point. [00:29:45] Speaker 05: Okay, so you're seven minutes over. [00:29:47] Speaker 05: That's our fault. [00:29:48] Speaker 05: I want to thank you for your patience with our questions. [00:29:51] Speaker 05: You can plan that when you come back, we'll put four more minutes on the clock for rebuttal. [00:29:55] Speaker 01: Thank you, Your Honor. [00:29:56] Speaker 05: You bet. [00:29:57] Speaker 05: Thank you. [00:29:58] Speaker 05: We appreciate your advocacy. [00:30:00] Speaker 05: We'll hear from the, there he is. [00:30:06] Speaker 05: Mr. Chemerinsky. [00:30:08] Speaker 03: Good morning. [00:30:08] Speaker 03: May it please the court. [00:30:11] Speaker 03: This case presents an issue of profound importance. [00:30:16] Speaker 03: May the president terminate billions of dollars of grants without any semblance of due process, little explanation, and often based on the perceived viewpoint of the research. [00:30:28] Speaker 03: To a large extent, the issues that are for you now were resolved in your August 21st order and opinion. [00:30:34] Speaker 03: For the sake of clarity, there are three sets of issues on this appeal. [00:30:38] Speaker 03: One are the jurisdictional questions, the second are the merits questions about the Administrative Procedures Act and the First Amendment, and then the final set of issues go to the balance of equities in the injunction. [00:30:49] Speaker 03: In terms of the first issue of this jurisdiction, undoubtedly the most important question concerns whether the Tucker Act precluded the district court from accessing jurisdiction. [00:30:59] Speaker 03: At the outset, I want to be clear, this doesn't apply to the First Amendment claim. [00:31:03] Speaker 03: the equity termination class. [00:31:05] Speaker 03: Mr. Roth conceded in the argument on July 31st, they were not making a correct argument with regard to the First Amendment. [00:31:12] Speaker 03: The petition for rehearing and rehearing on bank only uses NIH relative to the form termination. [00:31:20] Speaker 03: Also, now as to the form termination class, [00:31:24] Speaker 03: Your honors, this issue is resolved for this panel by the Ninth Circuit's decision in community legal services for the United States Department of Health and Human Services. [00:31:33] Speaker 03: And specifically at 1.37 at 4th at 9.39, the Ninth Circuit resolves these questions. [00:31:40] Speaker 03: The Ninth Circuit said explicitly that the Tucker Act precludes jurisdiction only where the court of federal claims would have jurisdiction. [00:31:49] Speaker 03: If the court of federal claims has no jurisdiction, then there's no preclusion of the district court. [00:31:54] Speaker 03: And Mr. Roth conceded this morning that the Court of Federal Claims would not have any jurisdiction in this case. [00:32:01] Speaker 03: His position then has to be that no court would have jurisdiction, and he said that. [00:32:06] Speaker 03: But again, this court addressed that exactly in community legal services. [00:32:12] Speaker 05: I remind you- Sir, I don't think that we did direct that exactly in community legal services. [00:32:17] Speaker 05: And I don't mean to spend a lot of time on this because I think it's been pretty well aired, but the claims there were statutory. [00:32:24] Speaker 05: I think what we said there, for me, the pressure point was they didn't arise from a contract. [00:32:31] Speaker 03: But Your Honor, I remind you of the language of 939, but there cannot be exclusive jurisdiction under the Tuck Act if there is no jurisdiction under the Tuck Act. [00:32:41] Speaker 03: in the court said the result requested by government would mean that no court is jurisdiction to the plaintiff's claims. [00:32:48] Speaker 03: Not only is this result contrary to common sense, but it also conflicts with the strong presumption of a judicial review under the APA. [00:32:56] Speaker 03: I'd also point you to the language from the October 10th opinion [00:33:00] Speaker 03: by Judge Fletcher and Judge Koh in Community Legal Services, where they say, quote, we therefore reject the two sovereign immunity waivers. [00:33:09] Speaker 03: The talker act and the APA create a jurisdictional catch-22, which no court can consider plaintiff's claims. [00:33:16] Speaker 03: In your honor. [00:33:17] Speaker 03: Go ahead, Dean. [00:33:19] Speaker 03: No, all I was going to say is make [00:33:24] Speaker 03: in instances where the Court of Claims would have jurisdiction. [00:33:28] Speaker 03: Mr. Roth's position— Can I just follow up? [00:33:32] Speaker 05: That's because you're assuming that some court has to have jurisdiction. [00:33:35] Speaker 05: Is that it? [00:33:36] Speaker 03: Yes, Your Honor, I am. [00:33:38] Speaker 03: I'm assuming that if there's going to be a preclusion of jurisdiction, the United States Supreme Court has said it must be explicit. [00:33:46] Speaker 03: It can't be inferred. [00:33:50] Speaker 05: So what about opposing counsel's response to my colleague's question about this? [00:33:55] Speaker 05: And what he said is, well, these plaintiffs don't have standing to challenge. [00:34:01] Speaker 03: Your Honor, there's no case that says that because somebody else could sue, plaintiffs who meet the Article 3 requirements for standing or deny people to sue. [00:34:10] Speaker 03: Consider the following. [00:34:11] Speaker 03: Under Mr. Ross' approach, what if a presidential administration said, we're going to terminate all grants to African-American individuals? [00:34:20] Speaker 03: Now, the university could sue on their behalf, but if the university doesn't sue, that would then mean that no court would have jurisdiction to hear their claim. [00:34:28] Speaker 03: And the Ninth Circuit and Community Legal Services explicitly said, there is such a strong presumption for judicial review, including under the Administrative Procedure Act, that if the government is going to preclude jurisdiction, it has to be explicit. [00:34:42] Speaker 03: It can't be inferred in a situation like this. [00:34:44] Speaker 02: Dean Chemerinsky, can I just ask you, [00:34:51] Speaker 02: about the Supreme Court's decision in NIH. [00:34:55] Speaker 02: So as I read, that case, I think, is a little bit more pertinent here. [00:35:03] Speaker 02: And it's pretty clear that the Court seemed to say that these claims, the APA claims, are essentially a contract claim, and they belong in the Court of Claims. [00:35:16] Speaker 02: And the Court sort of chastises all the lower courts for not heeding [00:35:22] Speaker 02: their views even on these stay orders. [00:35:25] Speaker 02: So how do we deal with NIH? [00:35:27] Speaker 02: I mean, we can't just dismiss it. [00:35:31] Speaker 02: It's a higher authority than community legal services. [00:35:35] Speaker 03: But NIH does not deal with the situation of this case of plaintiffs who could not go to the Court of Federal Claims. [00:35:43] Speaker 03: There is nothing in NIH explicitly or implicitly that discusses individuals who could not go to the Court of Federal Claims. [00:35:51] Speaker 03: The assumption of NIH is that the plaintiffs in that case could go to the Court of Federal Claims. [00:35:57] Speaker 03: Or to put it another way, Judge Paias, there's nothing in NIH that suggests that there would be a situation where there would be complete [00:36:04] Speaker 03: of jurisdiction and the Supreme Court accepted. [00:36:08] Speaker 03: In order for NIH to be applicable, the court would have needed to address this situation, and it doesn't discuss it in any way. [00:36:15] Speaker 02: So the Court of Federal Claims has very limited jurisdiction, as I understand it. [00:36:21] Speaker 02: Is that right? [00:36:23] Speaker 02: Yes, Your Honor. [00:36:24] Speaker 02: It's likely that the plaintiffs would have constitutional standing. [00:36:30] Speaker 02: But could the Court of Claims entertain the relief they're seeking? [00:36:40] Speaker 03: Well, no, Your Honor. [00:36:41] Speaker 03: The Court of Federal Claims could not provide the relief that is being sought here. [00:36:45] Speaker 02: Could they allege a breach of contract claim as third-party beneficiaries? [00:36:53] Speaker 03: except that the United States has specifically said that the plaintiffs cannot sue as third party beneficiaries if they're not in privity. [00:37:01] Speaker 03: If you look at DACA 35- Are they stuck with that point? [00:37:08] Speaker 03: Well, they've never deviated from that point. [00:37:10] Speaker 03: And I think, Your Honor, if you would look at the law with regard to third-party beneficiaries in privity in the court of federal claims and under the federal circuit, we would not have plaintiffs who are in third-party beneficiary status or have privity of contract. [00:37:23] Speaker 03: I think the government was right in what it said in its brief based on the authority that they cite. [00:37:29] Speaker 02: Well, my reading of the law on third-party beneficiary status is that it is available in the Court of Claims and only very, very narrowly. [00:37:40] Speaker 03: That's correct, Your Honor. [00:37:41] Speaker 03: And what the government argued at the citation I gave you is that the plaintiffs are not third-party beneficiaries and they have no privity. [00:37:48] Speaker 03: And the government cited authority for that. [00:37:50] Speaker 03: And we agree with that authority, which is why the plaintiffs could not go to the Court of Federal Claims. [00:37:56] Speaker 02: So how do you understand Judge Barrett's concurrence? [00:37:59] Speaker 02: Because I thought on this point, she seemed to just hedge a bit. [00:38:03] Speaker 02: That is, she assumed that the parties could go to the court of claims. [00:38:07] Speaker 03: Is that right? [00:38:08] Speaker 03: That's exactly right. [00:38:09] Speaker 03: She assumed that the parties could go to court of claims, which is why neither her opinion [00:38:14] Speaker 03: nor the opinion of the court remotely addresses this issue. [00:38:18] Speaker 03: If you have plaintiffs who can't go to the court of federal claims, does the TUCREC preclude jurisdiction? [00:38:23] Speaker 04: Dean Chemerinsky, I would agree with you that the court does not address the specific issue of the class of plaintiffs who are researchers, where they would have the ability to bring their claims. [00:38:36] Speaker 04: But you would agree with me that the plaintiffs in the NIH case included [00:38:42] Speaker 04: non-grantee researchers, correct? [00:38:45] Speaker 04: So the court had a class of plaintiffs before it that at least a subsect, which were the same as this case. [00:38:52] Speaker 04: And in fact, in your prior briefing, you characterize NIH cases being nearly identical to this case. [00:38:59] Speaker 04: And so I'm now sort of having some difficulty with your distancing from NIH when in fact the plaintiffs in that case did include some of the very kinds of plaintiffs we have here. [00:39:14] Speaker 03: Let me divide your question into two parts. [00:39:16] Speaker 03: The first is, what did NIH discuss? [00:39:19] Speaker 03: NIH did not discuss at all in any way the individual plaintiffs. [00:39:25] Speaker 03: In fact, if you look at the briefing before the Supreme Court in NIH, if you read the decision, it's simply [00:39:31] Speaker 03: doesn't discuss the individuals who wouldn't have access to the Court of Federal Claims. [00:39:36] Speaker 03: Everything about the opinion, and as I just said, Judge Barrett's opinion assumes that the Court of Claims has jurisdiction. [00:39:43] Speaker 03: And as we know, preclusion of jurisdiction is never inferred. [00:39:48] Speaker 03: It always has to be explicit. [00:39:50] Speaker 03: The second part of your question goes to our characterization of NIH. [00:39:54] Speaker 03: Of course, there are similarities between this case and NIH because both involve termination of grants. [00:40:00] Speaker 03: But the Supreme Court's decision in NIH on August 21st doesn't in any way address this situation, and that's plaintiffs couldn't go to the Court of Federal Claims. [00:40:12] Speaker 03: Your Honor, how could it be that the Tucker Act precludes jurisdiction where the Tucker Act doesn't apply? [00:40:20] Speaker 03: Mr. Roth says it wouldn't make sense to allow the individuals to sue where the institution couldn't sue. [00:40:27] Speaker 03: It does because they meet Article 3 standing. [00:40:30] Speaker 03: As this court has found, they are tremendously injured by the cutoff of grants. [00:40:35] Speaker 03: Their research has to stop. [00:40:36] Speaker 03: Their labs have to close. [00:40:38] Speaker 03: They have to lose their postdocs, graduate students, employees. [00:40:41] Speaker 03: Papers aren't published. [00:40:43] Speaker 03: It's caused by the government's action and will be redressed. [00:40:46] Speaker 03: And since they meet Article III standing requirements, they can come to federal district court, even if there's another party that might have to go to the court of federal claims. [00:40:56] Speaker 03: The second set of issues go to the merits, and the discussion so far with Mr. Roth is focused on the First Amendment. [00:41:03] Speaker 03: And here I think what Mr. Roth wants to do is simply ignore what the Supreme Court said in Finley, in Rosenberger, [00:41:12] Speaker 03: and regular taxation with representation. [00:41:14] Speaker 03: There's no doubt that the government can decide what programs to create. [00:41:18] Speaker 03: There's no doubt that the government can decide what speech to fund. [00:41:21] Speaker 03: But what the government cannot do is use its leverage with regard to funding to punish particular ideas, to act, to censor ideas. [00:41:29] Speaker 03: And I know there's a lot of discussion, Judge Christin's question was too rough, but I'm a reminder of the language, Minier versus Finley, at 524 U.S. [00:41:38] Speaker 03: at 587. [00:41:40] Speaker 03: Even in the provision of subsidies, the government may not aim at the suppression of dangerous ideas. [00:41:46] Speaker 03: The government cannot leverage its power toward subsidies under the subjective criteria under penalty and dissipated viewpoints. [00:41:53] Speaker 03: I'd also remind this court of the Ninth Circuit precedent in Koala v. Cosa, 931F3898. [00:41:59] Speaker 03: The government can violate the First Amendment by withholding benefits with censorious purpose. [00:42:06] Speaker 03: In your August 21st order, especially pages 21 and 22, you describe how that's exactly what the government was doing. [00:42:14] Speaker 03: If you look, for instance, at 90 Federal Register 8633, the government says its goal is to quote, combat and end the dangerous, demeaning, and immoral DEI speech. [00:42:26] Speaker 03: What the government did was engage in keyword searches. [00:42:30] Speaker 03: And if there were diversity or environmental justice appeared, they cut off the grant. [00:42:36] Speaker 03: As I said to Judge Desai at the July 31st hearing, this certainly shows a violation of the Administrative Procedures Act. [00:42:43] Speaker 03: Grants were cut off because they were about plant diversity, about diversity of the human stomach. [00:42:48] Speaker 03: And it was presented there in terms of the biogeom. [00:42:53] Speaker 03: And this also violates the First Amendment, that it's entirely about trying to cut off grants on the basis of the viewpoint expressed. [00:43:02] Speaker 03: It's not about the government choosing what programs to fund. [00:43:05] Speaker 03: It's not about the government deciding what speech to fund. [00:43:08] Speaker 05: May I ask you a follow-up question there? [00:43:10] Speaker 05: Yes, please. [00:43:10] Speaker 05: Forgive me for interjecting, but in response to the order we previously issued, the government has come back. [00:43:16] Speaker 05: And when we talk about the juxtaposing, you know, Rust and particularly Rosenberger and Finley, you heard the exchange a minute ago where the government decides that the distinction is whether or not there's an all-commerce policy. [00:43:31] Speaker 05: You know, of course, one of the cases, I think Judge Pai has actually authored one of them. [00:43:36] Speaker 05: having to do with student activity funds, all commerce policies, versus a competitive process. [00:43:42] Speaker 05: And I don't read Finley that way. [00:43:44] Speaker 05: There's another distinction in Finley, which is whether or not that was an as applied challenge. [00:43:50] Speaker 05: In other words, there are subjective criteria to be sure. [00:43:54] Speaker 05: But the court didn't have the type of challenge [00:43:59] Speaker 05: it had a facial challenge there. [00:44:02] Speaker 05: And so I draw the line there, but I'd like to hear what you have to say about whether both distinctions are made in the case. [00:44:11] Speaker 05: So how would you distinguish the two? [00:44:13] Speaker 03: Yes, Your Honor. [00:44:14] Speaker 03: I think the key is that the government can't choose to terminate grants just on the basis of viewpoint. [00:44:22] Speaker 03: I think what Finley is important is saying that, of course, the government can choose what programs to fund or not fund. [00:44:28] Speaker 03: what art to fund or not fund in that. [00:44:30] Speaker 03: But the government shouldn't be able to leverage its authority to censor particular ideas and views. [00:44:36] Speaker 05: OK, so first of all, opposing counsel has conceded there were no programs that were terminated here. [00:44:41] Speaker 05: There's selective grants that were terminated for one criteria. [00:44:44] Speaker 05: And I think the McDonald Declaration makes very clear what the criteria was. [00:44:49] Speaker 05: So we've talked about that. [00:44:54] Speaker 05: But opposing counsel has now had a chance to respond [00:44:58] Speaker 05: to our order. [00:44:59] Speaker 05: And he says that because these grants were [00:45:05] Speaker 05: allocated, they were awarded in part because of DEI, they can be terminated because of DEI. [00:45:13] Speaker 05: Do you want to speak to that, please? [00:45:14] Speaker 03: Sure, Your Honor. [00:45:15] Speaker 03: The government can make choices about what programs it wants to fund or not fund, but the government can't leverage its power to then try to censor particular ideas. [00:45:26] Speaker 03: That's almost verbatim with Finley and Reagan and Rosenberger say. [00:45:31] Speaker 03: And it's what the government did here. [00:45:32] Speaker 03: They weren't terminating programs. [00:45:34] Speaker 03: They were terminating specific grants because they disagreed with the viewpoint expressed. [00:45:39] Speaker 03: And that's exactly what this court said in its August 21st order violates the First Amendment. [00:45:45] Speaker 05: So does your view of the case pivot in part on the fact that these were previously awarded grants as opposed to going forward? [00:45:51] Speaker 05: Could the government decide that they're going to change the criteria for awarding grants? [00:45:56] Speaker 03: Yes, Your Honor, the government can make choices as to the future of what programs to create or not create. [00:46:02] Speaker 05: But you're using, excuse me, you're using the word program there. [00:46:09] Speaker 03: We're focusing on the programs that the government created, but in terms of the specific grants, the government can administer its program in the future. [00:46:18] Speaker 03: But here, what the government is doing is quite different than that. [00:46:21] Speaker 03: The government is saying there are viewpoints that we find unacceptable, and we're going to terminate particular grants for those viewpoints. [00:46:30] Speaker 03: There's no way to reconcile. [00:46:32] Speaker 05: Please, go ahead. [00:46:34] Speaker 03: I was just going to say there's no way to reconcile that with the language of Finley or Rosenberg or Regan or what this court said in its August 21st order. [00:46:42] Speaker 05: Well, you know, from our August 21st order, I tend to agree with you. [00:46:45] Speaker 05: I'm really struggling with this, though, and I want to make sure that I'm understanding something. [00:46:49] Speaker 05: We're in the unique position to hear the government's response, which I find very helpful. [00:46:53] Speaker 05: It's a really important case. [00:46:54] Speaker 05: And so, you know, we, of course, push back in this case in response to your comment that the government going forward could make this decision that a criteria can't include DEI. [00:47:04] Speaker 05: I don't even know if that's correct. [00:47:07] Speaker 05: And admittedly, we don't have to really reach that today. [00:47:11] Speaker 05: But given the enabling legislation where Congress specifically directed that these historically excluded groups have to receive particular weight in their grant applications, that seems to be even more dubious to me. [00:47:26] Speaker 03: Well, I'll agree totally with you on that, Your Honor. [00:47:29] Speaker 03: What I would say there is there's a violation of the statute if the agencies don't do that. [00:47:35] Speaker 03: You don't have to reach the question in this case of what can Congress do in the future? [00:47:41] Speaker 03: There's no way to reconcile Mr. Roth's position with the language of [00:47:45] Speaker 03: Finley and Rosenberger and Regan. [00:47:48] Speaker 03: Because what he's saying is the government just can't keep people from other speech apart from the program. [00:47:55] Speaker 03: But that's not what those cases say. [00:47:56] Speaker 05: I think we all agree those cases don't apply here. [00:47:59] Speaker 05: I didn't really hear the government to be arguing otherwise. [00:48:02] Speaker 05: But I appreciate your response. [00:48:05] Speaker 05: Judge Pius, did you get cut off, please? [00:48:07] Speaker 02: No, no, no, no. [00:48:08] Speaker 02: But I do have maybe a follow-up question here. [00:48:15] Speaker 02: With the First Amendment claim and the showing that you made on the First Amendment claim, would that by itself support the scope of the preliminary injunction? [00:48:27] Speaker 03: It would support the scope of the preliminary injunction with regard to the equity termination class. [00:48:33] Speaker 02: So when the district court crafted two separate classes, you don't have any quarrel with that. [00:48:41] Speaker 03: Not at all, Your Honor. [00:48:42] Speaker 03: As you said, there are overlapping classes. [00:48:45] Speaker 03: There are certainly members of faculty and researchers who fit within both of those classes. [00:48:51] Speaker 02: So in order to uphold the injunction fully, we would need to say that NIH can be, is distinguishable, doesn't apply here, and essentially adopt [00:49:07] Speaker 02: your arguments. [00:49:08] Speaker 02: Is that right? [00:49:09] Speaker 03: Yes, Your Honor. [00:49:10] Speaker 03: There's no issue with regard to NIH relative to the First Amendment class. [00:49:14] Speaker 03: The only issue is with regard to the form termination class. [00:49:17] Speaker 03: And I don't think there's any way to read NIH is dealing with the issue that's presented before this Court. [00:49:23] Speaker 03: The other aspect of NIH that I wanted to talk about concerns the balance of equities. [00:49:29] Speaker 03: And I think it's important here that it be thought of as a balance of equities. [00:49:34] Speaker 03: In terms of the harm to the plaintiffs, we have to start with the First Amendment harm to them. [00:49:39] Speaker 03: And there was no First Amendment claim in NIH. [00:49:42] Speaker 03: And the loss of First Amendment rights is an irreparable injury. [00:49:45] Speaker 03: Also, we've talked about the tremendous harm to the researchers. [00:49:48] Speaker 03: in terms of their research being stopped. [00:49:51] Speaker 03: Giving them money in a few years isn't going to resume their research or make up what was lost. [00:49:55] Speaker 03: And also, as this court said in its August 21st order, there's the harm to the federal government that comes in terms of interrupting the research. [00:50:04] Speaker 03: On the other side, there is the government's claim that the federal government couldn't recoup its money. [00:50:11] Speaker 03: the University of California, and the state of California, there's no reason to believe that the federal government couldn't be able to get the money. [00:50:19] Speaker 03: If it's about mechanisms, it could be just an unjust enrichment claim. [00:50:22] Speaker 03: And that makes this very different from the NIH case. [00:50:32] Speaker 05: Anything further? [00:50:35] Speaker 03: Thank you so much. [00:50:36] Speaker 05: Thank you for your advocacy. [00:50:37] Speaker 05: We'll hear from the government. [00:50:41] Speaker 05: I'm sorry if I forgot. [00:50:42] Speaker 05: I'm not trying to interrupt you, sir. [00:50:44] Speaker 05: I just want to apologize in advance. [00:50:45] Speaker 05: For some reason on your end, I keep having a delay, like a long-distance phone call in the old days. [00:50:51] Speaker 05: But I'll try to not step on top of you. [00:50:54] Speaker 00: No problem, Your Honor. [00:50:55] Speaker 00: Thank you for the court's indulgence. [00:50:58] Speaker 00: On the Tucker Act, counsel said, you know, preclusion has to be explicit, not implied. [00:51:03] Speaker 00: But 702 of the APA specifically says, if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought, this whole line of cases is about implied preclusion from an alternative review scheme that may grant certain relief, but not other relief. [00:51:23] Speaker 00: Or as relevant here, grant relief to some parties, but not other parties. [00:51:27] Speaker 00: Council said, no, no case supports the idea that if certain parties can sue, then other parties can't. [00:51:33] Speaker 00: That's literally what Block was about. [00:51:35] Speaker 00: Block was a case where Congress had authorized certain people to challenge these milk orders and [00:51:43] Speaker 00: Plaintiffs who had Article 3 standing, but were not within the scope of that defined class, tried to go under the APA instead. [00:51:51] Speaker 00: And the Supreme Court said unanimously, no, you can't do that. [00:51:54] Speaker 00: That's evading the limits that are in the specialized review scheme. [00:51:59] Speaker 00: It's the same argument as here. [00:52:01] Speaker 00: And so I think it's just kind of backwards to say the parties of the contract have no ability to get specific performance. [00:52:09] Speaker 00: Intended third party beneficiaries, no ability to get specific performance. [00:52:14] Speaker 00: But if you're even further removed, such that you don't even count as an intended third party beneficiary, then you can go to district court and get the grant reinstated. [00:52:23] Speaker 00: That is a very, very strange result, and I don't think it's consistent with the law. [00:52:29] Speaker 00: With respect to the First Amendment, I would just urge the court to take a look at Judge Harris's concurrence in the Fourth Circuit case, National Association of Diversity Officers. [00:52:41] Speaker 00: Court granted a stay in that case, and Judge Harris wrote a concurrence. [00:52:45] Speaker 00: where she said, she was talking about the executive order that requires termination of equity related grants. [00:52:52] Speaker 00: And she said, well, that doesn't seem to be a first amendment problem because it's limited to the use of the funds and doesn't purport to influence, suppress or compel any speech outside the scope of what's being funded. [00:53:06] Speaker 00: And that I think is correct. [00:53:08] Speaker 00: And that's sort of the basic point that I'm trying to articulate here. [00:53:12] Speaker 00: I don't fully understand the difference between the program and grant idea. [00:53:18] Speaker 00: As I understand it, Congress has created these programs. [00:53:22] Speaker 00: The agencies can't terminate the programs and they're not trying to. [00:53:26] Speaker 00: Congress creates the broad program and says, here's a billion dollars for grants for health. [00:53:32] Speaker 00: And then the agency decides how to allocate that money [00:53:36] Speaker 00: we think in an unreviewable way, at least from an APA perspective. [00:53:41] Speaker 00: And in allocating the money to specific grants within that program, the agency is permitted to discriminate based on viewpoint. [00:53:49] Speaker 00: And that's why it can say, you know, we want to fund pro-choice research and not anti-abortion research or pro-gun or pro-smoking or anti-smoking. [00:53:57] Speaker 00: There's no requirement of viewpoint neutrality in making those decisions. [00:54:02] Speaker 00: And if the agency can do that, then I don't understand why the First Amendment would prohibit a new administration from prospectively [00:54:11] Speaker 00: no longer funding particular viewpoints that it no longer wishes to subsidize. [00:54:18] Speaker 00: It's not a penalty. [00:54:19] Speaker 00: It's not a punishment. [00:54:21] Speaker 00: It's not suppression. [00:54:22] Speaker 00: It's simply the government not paying for research it doesn't want to pay for. [00:54:26] Speaker 00: And that's really our fundamental point. [00:54:28] Speaker 00: If the government doesn't want to pay for DEI-related research, the First Amendment doesn't require that. [00:54:34] Speaker 00: And that requires the reversal of the injunction because the injunction actually enjoins [00:54:42] Speaker 00: any termination of a grant pursuant to this executive order. [00:54:45] Speaker 05: So it's- To use a silly, dramatic, hypothetical, what is your answer to Dean Chemerinsky's question? [00:54:56] Speaker 05: I think it's posited in the briefing somewhere. [00:54:58] Speaker 05: If a new administration were to say something truly outlandish, we're not gonna fund any more art if the artist is of a particular ethnic minority. [00:55:09] Speaker 00: Well, there might be an equal protection claim if it's discrimination. [00:55:13] Speaker 00: And I think counsel made that point as to the Tucker Act. [00:55:16] Speaker 00: He said, well, what if they stopped funding black researchers? [00:55:19] Speaker 00: Only the universities could sue. [00:55:21] Speaker 00: But remember, we've only raised the Tucker Act argument in response to the APA claims. [00:55:28] Speaker 00: But I don't think it's a First Amendment problem. [00:55:30] Speaker 00: I think it might be an equal protection problem. [00:55:32] Speaker 05: And you think would only be an equal protection problem? [00:55:36] Speaker 00: Yes, I think that's right. [00:55:39] Speaker 00: And so for that reason, we'd ask the court to reverse the injunction. [00:55:43] Speaker 00: Happy to take other questions if there are. [00:55:45] Speaker 05: Yes, before you leave the podium, let me just check with my colleagues. [00:55:48] Speaker 05: Any further questions? [00:55:50] Speaker 05: No. [00:55:50] Speaker 05: Thank you so much for your advocacy. [00:55:52] Speaker 05: Both of you, I can't see Dean Chemerinsky at the moment, but I want to thank both of you. [00:55:56] Speaker 05: We appreciate your help very, very much. [00:55:58] Speaker 05: It's an important case, and we appreciated all of your help. [00:56:02] Speaker 05: We'll take another advisement and get you an opinion as soon as we can. [00:56:05] Speaker 05: We'll be off right here today. [00:56:09] Speaker ?: you