[00:00:00] Speaker 03:
Next case up is 25-4000 Scottsdale Capital Advisors versus the SEC.

[00:00:09] Speaker 03:
Ms.

[00:00:09] Speaker 03:
Fritz, you may proceed.

[00:00:13] Speaker 01:
Thank you, Your Honor.

[00:00:22] Speaker 01:
And good morning.

[00:00:23] Speaker 01:
Miranda Fritz for Scottsdale Capital.

[00:00:26] Speaker 01:
The issue before the court here is the district court's dismissal of Scottsdale's APA complaint, seemingly without regard for critical things like the presumption of reviewability under the APA or the specific elements required for an APA claim.

[00:00:49] Speaker 01:
And I would argue, based on a false premise,

[00:00:55] Speaker 01:
And that's what I want to address today.

[00:00:59] Speaker 01:
In the APA case, in the underlying case, Scottsdale was unquestionably challenging the following.

[00:01:09] Speaker 01:
The SEC, as it sort of meandered through the Rule 17A8 development, failed to engage in any rulemaking

[00:01:25] Speaker 01:
and was acting outside of its jurisdiction because Congress gave jurisdiction over SAR requirements to the Treasury, which in turn gave those to FinCIN and FinCIN at all times.

[00:01:43] Speaker 03:
You make those arguments on merits thoroughly.

[00:01:48] Speaker 03:
Right.

[00:01:48] Speaker 03:
Thoroughly in your briefing.

[00:01:53] Speaker 03:
But the question is,

[00:01:55] Speaker 03:
or at least one of the questions is, you have to be challenging a final agency action.

[00:02:00] Speaker 03:
And the only action, the only thing you identified as final agency action in the district court, you repeatedly said it, was the filing by the SEC of the complaint in federal district court in New York.

[00:02:17] Speaker 01:
That is correct.

[00:02:18] Speaker 03:
Okay, so how is that a final agency action?

[00:02:20] Speaker 01:
That, I just first want to distinguish.

[00:02:23] Speaker 01:
What we were challenging was not the Alpine case.

[00:02:27] Speaker 01:
What we identified as agency action was the Alpine case, and those doggone things got conflated.

[00:02:35] Speaker 03:
Well, no, no, no.

[00:02:37] Speaker 03:
There was nothing conflated or unclear.

[00:02:41] Speaker 03:
You said that the final agency action being challenged was the action of the SEC in filing the complaint in federal court in New York.

[00:02:50] Speaker 01:
Right.

[00:02:50] Speaker 03:
Okay, and how is that a final agency action?

[00:02:54] Speaker 01:
Okay, here's why that happened.

[00:02:56] Speaker 01:
Again, Rule 17A.A.

[00:02:59] Speaker 01:
1981 dealt only with CTR requirements.

[00:03:02] Speaker 03:
No, no, we're not talking about merits of the decision.

[00:03:05] Speaker 03:
We're talking about whether there is final agency action.

[00:03:09] Speaker 03:
That doesn't require us to resolve the merits, which you discussed at some length.

[00:03:13] Speaker 01:
Not at all.

[00:03:14] Speaker 01:
But we have to look for when was there final agency action

[00:03:21] Speaker 01:
as to which the SEC asserted that it had jurisdiction over enforcement of SARS.

[00:03:29] Speaker 01:
When did that occur?

[00:03:31] Speaker 01:
Because that's what we're challenging.

[00:03:33] Speaker 03:
When did the... No, you're challenging the decision to file, and that is not a final agency action.

[00:03:40] Speaker 01:
What I'm struggling with here is that is exactly the false premise that I'm trying to get past.

[00:03:48] Speaker 03:
I'm sure you're trying to get past it, but I don't think you can.

[00:03:51] Speaker 01:
No, we were not challenging the Alpine case.

[00:03:54] Speaker 03:
No, no, no, but you're challenging the filing of the... You're saying the SEC's action, that's final agency action, was filing that case.

[00:04:03] Speaker 03:
And filing a case in federal court is not a final agency action.

[00:04:08] Speaker 03:
Even filing a case within the agency itself, the Supreme Court has said, is just not the sort of thing we call final action, agency action.

[00:04:17] Speaker 03:
is true in spades when it's a filing in federal court, because then you're asking us to set aside the decision of another court not even in this circuit.

[00:04:27] Speaker 01:
Again, all of that flows from the argument that we were filing the Alpine filing.

[00:04:32] Speaker 01:
We were not.

[00:04:33] Speaker 01:
Here's what we were clearly identifying as agency action.

[00:04:38] Speaker 01:
The history of this regulation led up to a series of

[00:04:46] Speaker 01:
of no rulemaking, ambiguity, all of that, until we got to the filing by the SEC of the Alpine case.

[00:04:55] Speaker 01:
And here's why we called it final agency action, because they did.

[00:05:02] Speaker 01:
So let me just talk to you for a minute about what's in the briefing.

[00:05:07] Speaker 01:
When they filed the Alpine case.

[00:05:10] Speaker 03:
SEC.

[00:05:10] Speaker 01:
Yeah.

[00:05:11] Speaker 01:
When they filed it, having never before

[00:05:14] Speaker 01:
asserted jurisdiction over SAR enforcement.

[00:05:20] Speaker 01:
Here's what they said to the district court.

[00:05:25] Speaker 01:
This case is a matter of first impression that impacts the compliance of both Alpine and all broker dealers in the financial industry with the requirements of the BSA.

[00:05:39] Speaker 01:
The commission seeks injunctive relief

[00:05:43] Speaker 01:
to promote the law enforcement policies of the BSA, FinCIN, and Rule 17A8.

[00:05:51] Speaker 01:
A judgment from this district court will provide the most direct precedent and clear guidance to the largest segment of broker-dealers within the commission.

[00:06:06] Speaker 02:
Isn't that an announcement then to Alpine to challenge the 17A8

[00:06:14] Speaker 02:
proceeding for the reasons that you're arguing.

[00:06:18] Speaker 02:
It seems like that's a claim for Alpine, but not for Scottsdale.

[00:06:21] Speaker 02:
The reason why I emphasize this is... Or conversely, Scottsdale should have challenged the rule during the rulemaking process and not, collaterally, in the declaratory judgment action that they brought here.

[00:06:38] Speaker 01:
Again, we are challenging the rulemaking process, and the only question is, one of the elements

[00:06:43] Speaker 01:
We have to identify final agency action.

[00:06:46] Speaker 01:
So we had to point to something.

[00:06:49] Speaker 01:
This was truly when the gauntlet was thrown by the SEC to the industry to... And all the industry was required to do as a result was fight that in court.

[00:07:03] Speaker 03:
You're inconvenienced to that extent, but the Supreme Court has said that's not what we think of as final agency action, action that just makes you respond and argue the point.

[00:07:14] Speaker 03:
And then you go to, and so it's proceed, the case proceeds in the Southern District, I believe it was.

[00:07:20] Speaker 03:
Aspen loses, and now you want us to set aside essentially the decision

[00:07:29] Speaker 03:
of the court in another circuit.

[00:07:31] Speaker 01:
No, I really don't.

[00:07:32] Speaker 03:
That decision was... You do, but you're not... Yeah.

[00:07:35] Speaker 03:
You'd like us to come up with the opposite result.

[00:07:40] Speaker 01:
What I'm asking is for some court, this court, to take a look at how the SEC utterly and completely failed.

[00:07:49] Speaker 01:
to comply with the APA.

[00:07:51] Speaker 01:
That's what we're asking for.

[00:07:54] Speaker 03:
But we have to have jurisdiction before.

[00:07:55] Speaker 03:
It's a very interesting issue.

[00:07:57] Speaker 03:
Love to address it.

[00:07:58] Speaker 03:
Okay.

[00:07:58] Speaker 03:
But we can address it if we don't have jurisdiction.

[00:08:01] Speaker 03:
We don't have jurisdiction until you show that what you claim was final agency action satisfies the requirements of final agency action.

[00:08:11] Speaker 01:
Okay.

[00:08:12] Speaker 01:
Let me just say, throughout this case, I have wanted someone to ask the SEC when they think

[00:08:19] Speaker 01:
final agency action occurred.

[00:08:21] Speaker 01:
There's no dispute here that final agency action occurred, and it did occur as they filed the Alpine case.

[00:08:30] Speaker 01:
And that was their megaphone expressly.

[00:08:36] Speaker 03:
And the action you're troubled with is the decision in that Alpine case, which is the law that you need to comply with.

[00:08:43] Speaker 01:
Your Honor, I respectfully disagree.

[00:08:45] Speaker 01:
The action that we filed

[00:08:48] Speaker 01:
preceded the outcome of the Alpine case.

[00:08:52] Speaker 01:
We didn't care what the outcome was.

[00:08:55] Speaker 01:
And the reason is when they threw down the gauntlet and said, we want to communicate to the industry, we are asserting jurisdiction, and we are moving forward.

[00:09:09] Speaker 01:
That was the moment when we had an issue, a position

[00:09:17] Speaker 01:
that we had to deal with.

[00:09:19] Speaker 01:
Early similar to this sequence of events is the decision in San Francisco-Harris, Ninth Circuit case.

[00:09:31] Speaker 01:
And if you go through that case, you are going to see the same sequence of events in that case that happened here.

[00:09:41] Speaker 01:
What happened in that case is there were little rumblings

[00:09:46] Speaker 01:
that jurisdiction was going to be asserted over certain waters.

[00:09:51] Speaker 01:
Notices went out, things like that.

[00:09:54] Speaker 01:
But there was also a discussion, just as there was with respect to the BSA, there was pushback from the industry saying, you don't have jurisdiction, FinCEN does.

[00:10:05] Speaker 01:
So very similar facts.

[00:10:08] Speaker 01:
And then what happened in the San Francisco Herring case is,

[00:10:15] Speaker 01:
They went out into the water and gave in water enforcement orders to actual fishermen saying, we are now enforcing this and you are subject to criminal penalties.

[00:10:31] Speaker 01:
They used a literal megaphone.

[00:10:35] Speaker 01:
This is exactly the same thing.

[00:10:38] Speaker 01:
We had the same sequence of events.

[00:10:41] Speaker 01:
There were rumblings.

[00:10:43] Speaker 01:
And then in the Alpine case, the SEC announced its position.

[00:10:50] Speaker 01:
I didn't care what the outcome was.

[00:10:53] Speaker 01:
We filed before the outcome because what we were dealing with was their announcement that they had jurisdiction and they were going forward.

[00:11:07] Speaker 01:
That was, that satisfies the two pros.

[00:11:13] Speaker 01:
clearly the consummation of their deliberations on the one hand, and it had legal consequences for the industry.

[00:11:24] Speaker 01:
That's what they meant it to do, the filing, not the outcome.

[00:11:29] Speaker 01:
That's what they meant to do, and that's what they did.

[00:11:33] Speaker 01:
And what was the consequences to the industry?

[00:11:36] Speaker 01:
The industry at that point understood

[00:11:40] Speaker 01:
that the SEC under this, and I don't want to go into the merits, under a different and much more onerous regime was going to be taking jurisdiction over enforcement.

[00:11:54] Speaker 03:
If it won, if it won the case.

[00:11:57] Speaker 03:
No.

[00:11:57] Speaker 03:
It would be a decision.

[00:11:59] Speaker 03:
You wouldn't have to do anything until courts ruled in that case.

[00:12:03] Speaker 01:
I really disagree.

[00:12:05] Speaker 01:
We knew the outcome didn't matter.

[00:12:07] Speaker 01:
Even if Judge Cote had ruled against them, they were going to file these enforcement actions.

[00:12:16] Speaker 01:
They were going forward.

[00:12:18] Speaker 03:
And if they filed an enforcement action against you, then you'd have a final agency action to challenge.

[00:12:27] Speaker 01:
And obviously, I believe that this does, under the law, Athlone on the one hand, and the San Francisco case on the other hand.

[00:12:37] Speaker 01:
satisfy final agency action.

[00:12:41] Speaker 02:
You still have to show an injury though.

[00:12:43] Speaker 01:
Yes.

[00:12:44] Speaker 02:
And you're saying that the injury is from the filing of the enforcement action against Alpine?

[00:12:52] Speaker 01:
The injury comes from their megaphone, their trumpeting to the industry, that they are going forward with VSA enforcement.

[00:13:04] Speaker 01:
That is when it changed, just as it did in the Herring case.

[00:13:09] Speaker 01:
How does that injure you, your client?

[00:13:12] Speaker 01:
It's very concrete injury.

[00:13:14] Speaker 01:
At that point, and it's alleged in the complaint, Scottsdale had to revise significantly its compliance program in order to deal with the SEC's assertion of jurisdiction and imposition of

[00:13:34] Speaker 01:
unbelievably onerous penalties that don't exist within the BSA and so in the complaint we feel that we have alleged that that announcement that gauntlet if Alpine had won that case wouldn't have mattered it would not have mattered the SEC announced its position it was going to go forward if it happened

[00:14:03] Speaker 01:
to have lost the Alpine case in New York, it would have continued.

[00:14:08] Speaker 01:
That was one district court judge.

[00:14:11] Speaker 01:
It would not have suddenly said, oops, I guess we were wrong.

[00:14:18] Speaker 01:
This was the gauntlet, and boy was it throng.

[00:14:23] Speaker 03:
But then, if it had an adverse ruling in the federal court in New York, then it could proceed to the next case.

[00:14:31] Speaker 03:
And once it issued an order,

[00:14:34] Speaker 03:
There'd be a final agency order or, given that they would decide to proceed in court, they don't issue any orders.

[00:14:42] Speaker 03:
You end up with a decision by a federal district court and some other circuit and then a circuit decision.

[00:14:49] Speaker 03:
And then you either win or you lose.

[00:14:51] Speaker 03:
But the agency has an issue to final agency action.

[00:14:57] Speaker 01:
In these circumstances, this announcement in the wake

[00:15:04] Speaker 01:
of the rumblings that had preceded it was the consummation of the agency's deliberations, and it was expressly so.

[00:15:15] Speaker 01:
You are rarely going to find an agency saying, through this filing, we are communicating to the industry, to all broker dealers in the financial industry.

[00:15:32] Speaker 01:
with respect to the requirements of the BSA.

[00:15:35] Speaker 01:
And we're doing it to provide clear guidance to the largest segment of broker dealers within the commission's purview.

[00:15:44] Speaker 03:
Your time has expired, so wrap it up.

[00:15:46] Speaker 03:
You can wrap up your sentence, but don't think that you still have 24 seconds.

[00:15:53] Speaker 03:
showing how much you've exceeded your time.

[00:15:55] Speaker 03:
Thank you.

[00:15:56] Speaker 01:
I would ask that Your Honor really take a look at Athlum and the Heron case in terms of whether that action, the position announced by the SEC via the Alpine filing, constituted, satisfied the two elements of final agency action.

[00:16:17] Speaker 01:
Thank you.

[00:16:18] Speaker 03:
Would someone please close the back door, please?

[00:16:28] Speaker 00:
Good morning, Your Honor.

[00:16:30] Speaker 00:
May it please the court?

[00:16:30] Speaker 00:
Rachel McKenzie for the SEC.

[00:16:33] Speaker 00:
No authority supports Scottsdale's position that it can file an EPA lawsuit over a complaint or the positions the Commission took in an enforcement action that it litigated against another party in another federal court.

[00:16:45] Speaker 03:
I'm sorry, say that again.

[00:16:46] Speaker 03:
That was too fast for me.

[00:16:47] Speaker 00:
Apologies, Your Honor.

[00:16:48] Speaker 00:
I said no authority supports Scottsdale's position.

[00:16:51] Speaker 00:
that it can file an APA lawsuit over the complaint and the positions the commission took in a litigated enforcement action against another party in another federal court.

[00:17:02] Speaker 00:
I think the district court's analysis of Scottsdale's failure to identify final agency action is compelling and correct.

[00:17:10] Speaker 00:
The SEC's decision to file the Alpine action and the arguments it made to the court in that action did not determine any rights or obligations.

[00:17:18] Speaker 00:
The court's decision

[00:17:19] Speaker 00:
in that case, determined rights and obligations.

[00:17:22] Speaker 00:
I'm happy to discuss the Herring case, because I think that's actually quite helpful here.

[00:17:27] Speaker 02:
Yeah, if you respond to that and also to the Athlone case.

[00:17:32] Speaker 00:
Absolutely, Your Honor.

[00:17:32] Speaker 00:
So in San Francisco Herring Association, what was at issue was the park surface issued what the court referred to as no fishing orders.

[00:17:41] Speaker 00:
And it said that those orders were a display of legal force where immediate compliance was expected.

[00:17:48] Speaker 00:
And the court said that those orders were markedly different from a complaint with which immediate compliance is not expected.

[00:17:58] Speaker 00:
The parties who receive complaints are under no order requiring them to act.

[00:18:03] Speaker 00:
Exactly so here.

[00:18:04] Speaker 00:
The commission filed a complaint.

[00:18:07] Speaker 00:
It made allegations.

[00:18:08] Speaker 00:
And the court decided what it decided.

[00:18:11] Speaker 00:
But it was not the commission's complaint that determined any rights and obligations.

[00:18:16] Speaker 00:
As for Athlone, Your Honor, I think the district court actually did a pretty good job of explaining why that case does not control here.

[00:18:23] Speaker 00:
Number one, it seems to, as Judge Williams later said in the tightrope title decision, at odds with the Supreme Court's decision in FTC versus Standard Oil, because the Athlone decision does not address whether or not simply having to go through an administrative proceeding

[00:18:43] Speaker 00:
is a denial of a right or an imposition of a burden.

[00:18:47] Speaker 00:
The court in so-called, of course, said that it was not.

[00:18:50] Speaker 00:
I would also add that Athlone arose in the context of an administrative proceeding.

[00:18:56] Speaker 00:
That case, it was sort of in the pre-axon world, where there were always these questions about when you're in administrative proceedings, at what point can a party pop out of the administrative proceedings and get review by a court.

[00:19:11] Speaker 00:
Of course, that is not an issue here because the commission itself went to court and asked for judicial review of these issues.

[00:19:22] Speaker 03:
So you actually think AFLON was wrongly decided, but even if it was, you would distinguish it as involving an administrative action.

[00:19:31] Speaker 00:
I would, Your Honor.

[00:19:32] Speaker 03:
But the theory behind the court in Athlon was that the court was declaring its jurisdiction to do something.

[00:19:41] Speaker 03:
And that's kind of what's going on here.

[00:19:44] Speaker 00:
I'd say it was slightly different.

[00:19:45] Speaker 00:
What was at issue in Athlon was the agency was asserting its jurisdiction to both run the proceedings and at the end of it potentially impose penalties, of course in a

[00:19:56] Speaker 00:
Enforcement action in district court, it is not the agency that is asserting jurisdiction to govern proceedings or to issue a penalty.

[00:20:06] Speaker 00:
Those are all decisions for the court to make.

[00:20:08] Speaker 00:
And of course, those court decisions have legal consequences, but they are not final agency action.

[00:20:15] Speaker 00:
When an agency does engage in final agency action, of course, an aggrieved party can seek review of that action within a certain time frame defined by Congress.

[00:20:24] Speaker 00:
The Supreme Court and this court have said that specific and discrete final actions are subject to APA review.

[00:20:31] Speaker 00:
And there were moments here when broker dealers could have sought that sort of review, when the commission promulgated Rule 17A8, when the Treasury Department promulgated the SARS regulations, when the commission amended Rule 17A8 in 2011.

[00:20:45] Speaker 00:
But neither Scottsdale nor any other broker dealers sought that review.

[00:20:50] Speaker 00:
Rule 17A8 became final and effective.

[00:20:53] Speaker 00:
The commission filed a complaint to enforce the rule against Alpine and properly raised arguments were addressed in that action.

[00:21:00] Speaker 00:
Scottsdale's argument seems to boil down to this idea that, you know, if we think that the commission should have engaged in additional rulemaking before it filed an enforcement action, you essentially just dispense with the requirement under the APA that a plaintiff identify final agency action.

[00:21:18] Speaker 00:
But that's just not how it works.

[00:21:21] Speaker 00:
And I think a potentially helpful decision for your honors to take a look at is the Third Circuit's recent decision in Coinbase versus SEC, which is at 126F4175, and particularly at page 191.

[00:21:35] Speaker 00:
That's a decision from this year.

[00:21:36] Speaker 00:
And it arose in a slightly different context, but there was the same sort of

[00:21:43] Speaker 00:
flavor of the commission can't choose to litigate case by case, it has to engage in rulemaking.

[00:21:50] Speaker 00:
And the Third Circuit said, that's not true.

[00:21:52] Speaker 00:
And one of its reasons was, assuming for argument's sake, the SEC has tried to make regulatory changes in some or all of its enforcement actions, the appropriate way for a party to raise a fair notice argument would be as a defense in those enforcement actions.

[00:22:08] Speaker 00:
That's the way it works.

[00:22:09] Speaker 00:
We adopt a rule.

[00:22:11] Speaker 00:
At that point, there is a limited period of time at which people can raise challenges when that time passes, and the commission proceeds to seek judicial review over the contours of that rule.

[00:22:23] Speaker 00:
Any party against whom the commission seeks an enforcement action can raise appropriate defenses, exactly as Alpine did in the Alpine action, exactly as Scottsdale could do if we filed an enforcement action against Scottsdale.

[00:22:36] Speaker 00:
Unless your honors have questions, you'd ask that you affirm.

[00:22:42] Speaker 02:
Thank you, Council.

[00:22:43] Speaker 02:
I would like you to respond to the standing issue, and it does seem like there's going to be the possibility or the likelihood of increased cost to Scottsdale because of this, you know, now real, you know, new world order that there's 17A is going to be enforced.

[00:23:10] Speaker 02:
Why isn't that enough of an injury in this situation, assuming for purposes of discussion, final agency action?

[00:23:19] Speaker 00:
Yeah, I think exactly for the reason the district court said, which is that to the extent that Scottsdale faces increased compliance costs, that's because the Commission won in the Alpine case, and there is now a SDNY decision and a Second Circuit decision that says that Rule 17A applies to broker dealers and they have to comply.

[00:23:39] Speaker 00:
It's not the result of the complaint that the commission filed in that action.

[00:23:44] Speaker 03:
Is there any remedy under the APA for that sort of thing when you, for what they're saying?

[00:23:54] Speaker 03:
Could we require the agency, could we require, I guess it would have to be, well, let me put this, for there to be any remedy,

[00:24:07] Speaker 03:
You need to have some remedy before you get standing.

[00:24:11] Speaker 03:
And the remedy here would seem to be our reversing the Second Circuit.

[00:24:16] Speaker 03:
Is there any remedy that could be permitted under the APA?

[00:24:22] Speaker 03:
Can we issue a declaratory judgment under the APA remedies provision?

[00:24:29] Speaker 00:
I don't think there is a remedy that your honors could, and your honor brings up an excellent point about redressability because of course the remedy for agency action that is unlawful under the APA, that's section 706, would be to set aside agency action that's unlawful.

[00:24:45] Speaker 00:
Of course that highlights the exact problem here.

[00:24:47] Speaker 00:
As your honor highlighted earlier, this court cannot set aside a complaint

[00:24:52] Speaker 00:
that was filed in a different court.

[00:24:54] Speaker 00:
And, of course, it can't set aside the decisions of that court.

[00:24:56] Speaker 00:
So there is an enormous redressability problem here.

[00:24:59] Speaker 03:
Well, could we declare the law?

[00:25:04] Speaker 03:
Is one of the remedies permitted?

[00:25:07] Speaker 03:
Declaratory judgment?

[00:25:09] Speaker 00:
It's to declare unlawful and set aside agency action.

[00:25:12] Speaker 03:
But again, that just highlights what the... Can it simply declare it unlawful and not set it aside?

[00:25:17] Speaker 03:
We can't set aside the complaint.

[00:25:19] Speaker 03:
Can we declare the complaint unlawful?

[00:25:21] Speaker 00:
I would say no, Your Honor.

[00:25:22] Speaker 00:
Section 706 says declare unlawful and set aside.

[00:25:28] Speaker 03:
Agency action found to be arbitrary, capricious, all of the... So if you declare it unlawful, you have to set it aside as you read the APA?

[00:25:36] Speaker 03:
I think so, Your Honor.

[00:25:38] Speaker 03:
Is there any case law on that?

[00:25:39] Speaker 00:
Off the top of my head, I'm not aware.

[00:25:43] Speaker 03:
If you run into some, we wouldn't mind a 20HA letter?

[00:25:46] Speaker 03:
Absolutely, Your Honor.

[00:25:48] Speaker 03:
I'm not sure if it's going to be dispositive.

[00:25:51] Speaker 03:
I'm sorry, Judge Kelly.

[00:25:54] Speaker 03:
At one point, you're going to realize it's not worth listening to me, but I'll try to talk into the mic better.

[00:26:00] Speaker 03:
OK, so no more questions?

[00:26:02] Speaker 03:
I have no questions.

[00:26:03] Speaker 03:
OK, thank you.

[00:26:05] Speaker 03:
Thank you, counsel.

[00:26:09] Speaker 03:
No, no.

[00:26:12] Speaker 03:
Well, respond to what?

[00:26:15] Speaker 03:
The regressibility issue?

[00:26:20] Speaker 03:
If you have any case law on whether we can order something unlawful, declare something unlawful, but not set it aside, do you have something on that point?

[00:26:31] Speaker 03:
Because if you do, you can do it through a 28-J letter.

[00:26:35] Speaker 01:
Okay.

[00:26:37] Speaker 01:
No, the remedy we're seeking is a declaration that they failed to comply with the APA.

[00:26:41] Speaker 03:
Well, she's indicated she doesn't think that's allowable in an APA review.

[00:26:46] Speaker 03:
That's not redressable.

[00:26:47] Speaker 03:
If you have something to say on that, you can do that in 28J.

[00:26:50] Speaker 03:
All right.

[00:26:50] Speaker 03:
Thank you, Your Honor.

[00:26:54] Speaker 03:
Well, again, thank you, Counsel.

[00:26:56] Speaker 03:
Case is submitted.

[00:26:57] Speaker 03:
Counselor excused.