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case number 16-5279, the Lemnia, Inc.

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appellate versus United States Department of Energy at L. Mr. Bacchione for the appellate, Mr. Waldman for the athletes.

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Good morning, Your Honors.

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John Vecchione of Cause of Action Institute for the Plaintiff's Appellate, Limnia, Inc.

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Looking at the council table, Josh Shaw and James Valder.

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We have before us two orders on appeal.

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The first, a January order on voluntary remand back to the agency to do an impossible task.

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And that impossible task was to review a decision on a solicitation that was then closed.

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Can I pause for a second on this?

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Is it clear that it's impossible?

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I didn't realize that the judge actually held that it was impossible.

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The judge had not.

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So when you say impossible, you mean that the government says it's impossible, not that you agree that it's impossible.

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I believe since the solicitation was closed, the, in other words... Was it a position that the court can't order the solicitation to be reopened because of bad faith in its original determination?

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It could do that, Your Honor.

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I believe it might be able to do that, although it's a complicated situation.

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My answer should be it might be able to do that, but it would take an

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It would take such an enormous step back.

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It's almost like the state where you can't step in the same river twice.

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Well, I'm confused.

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If you were to prevail before us and go back to the district court and prevail there, what do you get?

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I thought what you got was going back to the Department of Energy.

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We get three things.

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First, the court would hold on lawful and set aside the original determination.

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That is of enormous value to my client, both in the marketplace.

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And you don't pay the fee.

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That's the second one.

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And you don't pay the fee.

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What happens in front of the Department of Energy then?

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What's the proceeding look like?

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Well, number one, that's our main gain on that.

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But the second thing is we can apply without a fee.

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Your Honor has put a finger on that.

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We could also, the conceptual problem here is that, let's say we had no court orders.

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Let's say we had no court determinations at all.

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We could always go back and whatever solicitations are open now, apply for them.

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We're not prohibited.

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We wouldn't know what would happen, we wouldn't have any protections, but we could be like any other applicant and go back.

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I am a little confused.

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You don't want a loan anymore, or you do?

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We do, Your Honor.

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Okay, so it isn't just that you want the determination held unlawful, or is your position that you want a loan with a new application?

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The position is for the LGP, I think we need the original decision.

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For my client's interest, we need it held unlawful and set aside.

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And then we need a new loan application without the fee.

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And tell me again why, what makes you think that

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Because the government closed the original program, why you can't get back into the original program, is there a statutory line item, this amount for this program, this amount for this program, because they're clearly still having loans, at least according to the papers in front of us.

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Yes, Your Honor.

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According to the government, it's closed.

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So you can't reapply under that group.

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And we would waive.

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The problem here in this is that we would also waive that administrative record is our fear.

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Our fear is that we would have the original administrative record, which we've never seen, all right, with whoever the original decision makers were.

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And however that was done, nobody knows that.

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The motion to dismiss under our allegations, it survived and went forward, but we don't actually have the administrative record.

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So if the remand went through and we applied anew, first of all, we'd have to pay the extra fees even to get through the gate.

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But we would have to be waiving the original

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injury, the original administrative record.

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I understand what your argument about why you don't like what you got.

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I get that.

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I'm having trouble still figuring out what you want.

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So I can see within the realm of the court's authority,

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vacating the determination.

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That would put you back into the old fee program with your claim of a waiver, which would have to be adjudicated whether this happened or not.

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But if you don't think that's possible, then it seems like the only thing that might be available is determination that the previous one was bad.

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But it's not clear to me that from that goes a waiver with respect to some future application, a waiver of the fees.

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Well, you would have the waiver, if we're correct, and the fee was waived, if we get remanded after... It wasn't waived for everything.

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It was waived for that program, right?

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I mean, your representation is you applied under a particular program and you got a fee waiver.

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Yes.

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I can see an argument.

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I don't know whether it has merit, but it certainly isn't frivolous, that

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denying you a loan under that program was wrong, and you should be back in the position where you were, which was without a waiver.

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But I'm not exactly seeing an argument which entitles you to a waiver for some future application that you haven't made.

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Well, that is the crux of this, Your Honor, because I believe the remedy is that we're remanded with a waiver of fee, and if our old

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If our old, I mean, the remedy is to put us as best in the position we were back then.

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And that requires a fee waiver, and then to look at the application in an unbiased manner.

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The old application?

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The old application.

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Not a new application, right?

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The new application would have to take account of all sorts of changes that have happened since then.

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Yeah, sure.

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And isn't that what the district court ordered?

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I thought your argument was, and I may be wrong, so correct me, that the relief that you should have obtained from the district court was that a remand would be going back and taking the original application and as best possible reconstructing that process.

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Is that not right?

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Well, my client also proposed, and we have proposed, no fee.

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new application and an unbiased review of that.

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Sounds like a proposed settlement.

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That doesn't sound like it is a remedy that can also be ordered, Your Honor.

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But because of the problem, the problem here is it is unlike many other cases that are cited in the briefs, like the Hawaiian Lines case where the ship had been redone partly in Finland and partly in the United States.

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They had remanded to have more work done on the ship.

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That's not what happened.

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And so we think that what should be done is there should be a fact finding about whether there was bias.

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If there was and there was a fee waiver, then you should get two things.

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You should get a remand to apply without the bias and without the fee.

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And with the old application or with the new one?

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There's a lot of stuff in your papers about wanting the old application, but this is what I'm a little confused about, which is if you're looking for a new application, which would ordinarily require

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putting up to date your information.

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And imagine hypothetically, which I know you don't think is true, something terrible has happened in the company and is no longer really fit for this application.

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We couldn't not allow the government to have that piece of information, could we, in a new application?

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I can understand your argument.

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It could be in an old application.

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So your hypothetical is that the company seeking the loan is no longer able to do.

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Your Honor, I think that it is reasonable to provide that type of information.

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But the two things that really jump out at me are the fee and the non-biased.

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And if it is, whatever it's called, the solicitation, if it is under the same sort of

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If it's the same sort of loan and the same sort of benefits as the original application, it seems to me my client would be made whole, whether you call it new or old.

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When you say non-biased, is there anything more to this than a direction from the court that the new consideration has to be non-biased?

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I appreciate you might want more.

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Would you be entitled to anything more than that?

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Yes, Your Honor.

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The cases, particularly in our reply brief, for instance, the immigration decision that was made in one of the cases, they said that that judge, the person who made that adjudication, couldn't be involved in the second adjudication.

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Yes, no, I understand that.

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And the government's position, whether it's accurate as a matter of fact or not, is that there isn't such a person being involved in the new one.

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So if the district court said,

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couldn't have the same decision-makers, and the government says, and we won't because you ordered us not to, that would be sufficient.

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Is that right?

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Yes, Your Honor.

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Okay, let me ask one more question about your reputational injury.

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Is the idea here that you were denied

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It was said that you were denied on the merits because I think your battery wasn't able to do this kind of thing and that you regard as a reputational injury because your battery actually could do this.

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Yes, Your Honor.

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Is there anything more to that?

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It's just in comparison to whoever else applied, we look worse.

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to the ones that weren't granted.

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And that's it.

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So it's both figure you're not worse than the others.

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And it can do what we said it could do.

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Thank you.

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I reserve the balance of my time.

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I didn't mean to cut off the other.

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OK.

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May it please the court, my name is Joshua Waldman here from the Department of Justice representing the Appellee Department of Energy.

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This court should dismiss the appeal for lack of appellate jurisdiction because the plaintiff has not timely appealed for any final decision of the district court.

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The district court's order dismissing in part was not a final decision, nor was the district court's remand order a final decision, nor was it denial of reconsideration of the remand order.

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Can we pause over the ladder?

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Okay.

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I was very pleased to find a quote from Judge Friendly in your brief, but I don't see how it helps you.

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The quotation says, appealability turns on what has been ordered, not on how it has been described.

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The district court described the second order, the July 2016 order, as a denial of a motion to reconsider.

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That is,

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The court characterized the motion as a request for reconsideration and then characterized the order as a denial.

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But the district court was very clear in the court's view that this was a final, appealable order.

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It doesn't govern us, but gives us some idea of what the court was thinking.

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And this doesn't sound like a remand at all.

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Your brief is filled with what I believe is the appropriate explanation of what a remand is.

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A remand, and so is the court's original decision.

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A remand is a chance for the agency to reconsider its decision, right?

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Right.

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But you're not willing to reconsider the original decision.

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Is that right?

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Well, I think the way I would put it is, and I think it's important to also distinguish between the two different types of applications that we're talking about in the two different programs.

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Because they operate in different ways, in ways that are relevant to the questions that you're asking.

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The first is the ATVM program.

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And there's been a lot of talk about fees.

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And I'd just like to emphasize that there's no dispute in this case that the ATVM program, that's the Advanced Technology Vehicle Manufacturing Program, has no fee.

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So all the questions about fees.

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And is that program still open?

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Yes, it's not even subject to solicitations in the way that the LG program is.

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So it's almost like a rolling program.

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You apply, your application is considered, and it's either granted or denied.

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If it's denied, you can apply again.

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So in the sense, there's no question in terms of the LG program, their solicitations, in the ATVM program, if they want to

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have their old February 2009 application considered in the sense of we don't feel like updating our technology.

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I don't know why they would do that for a program where cutting-edge technology is the entire point of the program.

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But if they wanted to stand on that technology, the department would consider it.

[00:14:06] Speaker 01:
So what would reconsider?

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I think there may be some... That was the question Chief Judge Garland asked and I didn't get a...

[00:14:14] Speaker 01:
Yes or no out of that, from your answer.

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Is the agency willing to reconsider its original decision?

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The answer is yes, but with respect to ATVM, I think there may be some slight paperwork requirements.

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They might have to sort of say, this is our application in 2017, here's all the information, but essentially copy over the same information if they wanted to do that.

[00:14:37] Speaker 03:
No, why would they have to do that?

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If in a normal remand,

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The party isn't required to refile its petition before an agency.

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The agency just goes ahead and reconsiders what it did before.

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Why an additional condition?

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Well, I think it just might be a matter of administrative, how they process it, because as far as the agency is concerned, there's been an application and it's been denied.

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So if they want to be revived.

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You volunteered to have a remand.

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Yes.

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And you represent the agency.

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Yes.

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I don't mean you personally did it, but the government volunteered for a remand.

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That means the agency has to be willing to do a remand.

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Yes, the agency is absolutely willing to reconsider the application.

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And what we said is you have an opportunity to update it with information.

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But that's just an opportunity.

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Well, they told you they didn't want that opportunity.

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So why didn't you go ahead and do that for the ATVF?

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because we told them we would consider it after a substantially complete application was submitted.

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And instead, we got a letter back with five demands, which is in the joint appendix, saying we're not going to cooperate until you meet these five preconditions.

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And this was when we went back to the district court jointly, and we filed the status report.

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And we said, this is the plaintiff's position.

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This is our position.

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We think they should just either say they're going to go forward with a non-updated

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application or not.

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Okay, what about the LG?

[00:16:10] Speaker 04:
Okay, so the LG program runs in solicitations.

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The solicitations open and then they close.

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The one that was open in 2009 when the original LG program application was submitted is now closed.

[00:16:23] Speaker 04:
By statute?

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No.

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Well, the statute speaks about solicitations, but it doesn't set open and close the agency.

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Is there anything that would bar the agency from doing what would be normally done in a remand, which is to reconsider the previous decision?

[00:16:39] Speaker 04:
Well, I haven't, to be honest, I haven't fully considered what would happen if, say, a court were entertaining ordering the agency to reopen the old solicitation.

[00:16:48] Speaker 03:
That's really a little bit more on the other side, which is you ask for a voluntary remand.

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A remand is a reconsideration of an original decision.

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If you're not offering that, then that's not a request for a voluntary remand.

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That's a request for something different.

[00:16:59] Speaker 04:
Well, what we could do is, in the new solicitation, if they wanted to submit the same information, instead of calling it an application for solicitation X, it's now we're just porting it over to solicitation Y. But it's the same technology, and it's the same, essentially, the sense that the application is the same, unless they want to update it, which we're willing to entertain.

[00:17:27] Speaker 04:
The solicitation asked that the technology they're offering would be covered under both solicitations.

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So it's really just a matter of what the number of the solicit and name of the solicitation is.

[00:17:38] Speaker 03:
So even if you weren't willing to do this voluntarily, there's nothing that would bar the court from ordering the remand to be a reconsideration rather than a new application, except for the fees question, which we'll get to in a minute.

[00:17:49] Speaker 04:
I'll get to the fees question in a minute.

[00:17:52] Speaker 04:
I don't see anything in the statute that would bar that.

[00:17:56] Speaker 04:
That was not the request made, as I understood it.

[00:18:01] Speaker 04:
The request that was made is that the district court was powerless to order a remand, and that was sort of what the debate was before the district court.

[00:18:09] Speaker 04:
I don't know whether there'd be any kind of

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retroactivity problem with reopening a solicitation that was closed by the agency before.

[00:18:17] Speaker 04:
But obviously, if the court ordered the agency to do that, the agency would comply.

[00:18:23] Speaker 04:
But let me address the fee issue, if I could.

[00:18:26] Speaker 04:
The first is, assuming we get to the fee issue where we've overcome all the hurdles of appellate jurisdiction.

[00:18:33] Speaker 03:
No, no.

[00:18:33] Speaker 03:
This is part of the question of appellate jurisdiction.

[00:18:36] Speaker 03:
Because if what the district court has effectively done here is dismiss their complaint,

[00:18:41] Speaker 03:
which frankly is the way I read this, then that's a final order.

[00:18:44] Speaker 03:
And under Swarovski, that brings up the previous order also for review.

[00:18:49] Speaker 03:
So you have to persuade us that this is not a dismissal.

[00:18:54] Speaker 03:
And my question is, with respect to the fee, could a court say, I am remanding this conditioned on you paying a fee?

[00:19:05] Speaker 03:
Would that be a remand, or would that be something quite different?

[00:19:11] Speaker 03:
That is, you can have a reconsideration of the decision here, but only if you pay a fee.

[00:19:16] Speaker 04:
I don't know, in that case, I don't know how the district court could have done that in this case, because it wasn't even clear what the dispute about the fee was, and it would be questions of fact and questions of law.

[00:19:30] Speaker 03:
I agree with that, and those are matters that the court didn't determine.

[00:19:33] Speaker 03:
So for purposes of

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This discussion, let's assume that what was said in the complaint was correct, that there had been a fee waiver.

[00:19:42] Speaker 03:
Now you're offering a voluntary remand, but only if you pay a fee.

[00:19:47] Speaker 03:
That strikes me as not offering a voluntary remand.

[00:19:51] Speaker 04:
Well, there were a couple things about that.

[00:19:53] Speaker 04:
Number one, if the only thing that we had offered was a voluntary remand, a remand where we could resolve the dispute issue on the fee before the agency and have a remand of the ATVM program for which there is no fee, that would have been entirely within the district court's right to do.

[00:20:12] Speaker 04:
And what the district court said at the hearing on the remand is, well, first of all, the fee issue has nothing to do with ATVM.

[00:20:20] Speaker 04:
So I can cleave, at minimum, I can cleave that away and remand on that.

[00:20:24] Speaker 04:
And on the fee issue, if you want to go back and just stand your ground and say, I'm entitled to pay no fee and I refuse again, and get rejected on the grounds that you've not paid the fee, and then come back, if you want to create an impasse on that issue now, that's within your rights.

[00:20:40] Speaker 03:
Why isn't there an impasse on the issue before the remand?

[00:20:42] Speaker 03:
You're not offering to waive the fee.

[00:20:45] Speaker 03:
In fact, your brief says it's impossible to waive the fee.

[00:20:49] Speaker 04:
Well, no, we didn't say that it was impossible to waive the fee.

[00:20:52] Speaker 04:
We said that if we had waived the fee, we would have had to have done it in writing and not orally.

[00:20:57] Speaker 03:
Okay, so your position is there was no waiver of the fee and they have to pay a fee.

[00:21:01] Speaker 03:
Their position is there was a waiver of the fee and they don't have to pay a fee.

[00:21:05] Speaker 03:
You can't remand for that because you're not willing to reconsider the fee issue.

[00:21:10] Speaker 04:
Well, one of the things that we could do is actually figure out what's going on with the fee issue.

[00:21:15] Speaker 04:
And I think it's a little bit unclear, Your Honor.

[00:21:17] Speaker 04:
And they said right now, and they suggest as much in their brief, that sometimes it's about paying no fee at all.

[00:21:23] Speaker 04:
In their status report, the one that the district court construed as a rule, 59E motion,

[00:21:28] Speaker 04:
They said what they were asking for is being subject to the original fee requirement.

[00:21:33] Speaker 04:
And in their complaint, they said, it wasn't that we didn't want to pay the fee.

[00:21:38] Speaker 04:
It's that we weren't given the wiring instructions.

[00:21:41] Speaker 04:
We were perfectly happy to pay that fee.

[00:21:44] Speaker 04:
And in their papers in the district court, they give three different numbers for what that original fee would be.

[00:21:51] Speaker 04:
So at a minimum,

[00:21:52] Speaker 04:
a remand would allow the parties in the remand proceedings to crystallize exactly what we're talking about.

[00:21:59] Speaker 03:
And that alone is proper for a remand.

[00:22:02] Speaker 03:
I don't know about that.

[00:22:04] Speaker 03:
But I want to just take the hypothetical that their view is as expressed in their complaint that the Secretary of Energy waived the fee.

[00:22:13] Speaker 03:
Now, if that is the case, could

[00:22:17] Speaker 03:
you condition your offer for a voluntary remand on paying a fee.

[00:22:22] Speaker 03:
That doesn't sound like any case I've ever heard of with respect to a voluntary remand, and that doesn't sound very voluntary to me.

[00:22:29] Speaker 04:
Well, what we said is if you want to come back and

[00:22:34] Speaker 04:
have us reconsider the program.

[00:22:35] Speaker 04:
You have to abide by the rules of the program.

[00:22:37] Speaker 04:
Which means you have to pay a fee.

[00:22:38] Speaker 04:
That's right.

[00:22:39] Speaker 04:
But as the district court said, if they want to either stand their ground and say, no, no, no, we're not doing that, or they want to pay and they want to seek judicial review of all their complaints, including their complaints about the fee issue,

[00:22:54] Speaker 04:
None of those things are waived.

[00:22:57] Speaker 04:
They preserve all those issues, and you can get that in future proceedings.

[00:23:01] Speaker 03:
Isn't that what they said in their status report?

[00:23:05] Speaker 03:
That the agency is taking the position it will not reconsider its initial decisions.

[00:23:11] Speaker 03:
That's what they want.

[00:23:12] Speaker 03:
A reconsideration of the initial decision.

[00:23:16] Speaker 03:
And you've said you won't do that, so now

[00:23:18] Speaker 03:
So now we have a final status on this.

[00:23:22] Speaker 04:
No, I don't think we've said that we wouldn't do.

[00:23:24] Speaker 04:
Certainly with respect to ATVM, there's no dispute about that.

[00:23:27] Speaker 04:
There's no fee issue.

[00:23:28] Speaker 04:
There's no solicitation.

[00:23:29] Speaker 03:
I got that, and I will be happy to ask the other side about that one.

[00:23:33] Speaker 03:
Let's focus on the thing that has a fee.

[00:23:35] Speaker 04:
We are willing to reconsider their old application.

[00:23:39] Speaker 04:
It would be considered under the new solicitation, but they wouldn't have to update it if they don't want to.

[00:23:45] Speaker 03:
Are you willing to reconsider it without a fee?

[00:23:47] Speaker 04:
Well, they can certainly go back once they're before the agency and request a fee waiver.

[00:23:53] Speaker 03:
That's a no.

[00:23:54] Speaker 04:
That's a no.

[00:23:56] Speaker 04:
Well, I can't answer that.

[00:23:58] Speaker 03:
OK, so now, assuming that they would have to pay a fee for this voluntary remand, does that sound like a voluntary remand?

[00:24:06] Speaker 04:
Well, the only difference is that after they pay that fee, if they think that that was unlawful, they can bring that up along with any other issue on remand that they're unhappy with the result.

[00:24:17] Speaker 03:
Imagine that an agency comes to this court and says, our rule has been challenged.

[00:24:25] Speaker 03:
We would like to reconsider the rule.

[00:24:28] Speaker 03:
But I'm sorry, you have to pay a fee.

[00:24:31] Speaker 03:
in order to get that reconsideration.

[00:24:34] Speaker 03:
I don't think there is any chance in the world that this court would remand because that doesn't sound like a voluntary remand.

[00:24:40] Speaker 04:
Well, the difference is you don't normally have to pay a fee to an agency for them to issue a rule.

[00:24:48] Speaker 04:
But this is an application for a loan program.

[00:24:50] Speaker 03:
But you do have to pay a fee.

[00:24:50] Speaker 03:
But their position is that it was waived.

[00:24:53] Speaker 03:
And that seems like something the district court has to determine before.

[00:24:58] Speaker 03:
Now, maybe it wasn't waived.

[00:24:59] Speaker 03:
Maybe you're right that it wasn't waived.

[00:25:01] Speaker 03:
It's a question of fact.

[00:25:02] Speaker 03:
Although, I think you're not even representing that.

[00:25:04] Speaker 03:
Are you representing that the Secretary of Energy did not waive it?

[00:25:08] Speaker 03:
I believe in our answer, we denied that he waived it.

[00:25:11] Speaker 03:
Denied that he was able to waive it, or denied that he actually waived it?

[00:25:16] Speaker 03:
I believe both.

[00:25:17] Speaker 03:
Okay, so in that case, we have a material fact dispute that seems like it has to be resolved.

[00:25:23] Speaker 04:
I mean, at some point, it would have to be resolved.

[00:25:25] Speaker 04:
The question is whether the district court was obligated to resolve it now before it remands to the agency.

[00:25:32] Speaker 04:
And I think it's entirely reasonable for the court not to have done that.

[00:25:36] Speaker 01:
Why?

[00:25:36] Speaker 01:
Why is it reasonable for the court to do it that way?

[00:25:39] Speaker 04:
Well, at the very least, it could narrow this case and speed up its resolution by remanding on the ATBM program.

[00:25:47] Speaker 01:
I understand we're on the LG, though.

[00:25:49] Speaker 01:
On the LG, why would that

[00:25:51] Speaker 01:
Why is that, in your word, reasonable to do that rather than resolving the dispute about the fee before remand?

[00:25:58] Speaker 04:
Well, I think there's a couple of reasons.

[00:26:00] Speaker 04:
One is because when the court was entertaining remand, the government said four times in its remand motion that it would have to pay the fee, and the plaintiff did nothing to complain about it.

[00:26:11] Speaker 03:
Well, the judge made clear in the hearing that the judge did not understand that at the time.

[00:26:16] Speaker 03:
The judge said several times that

[00:26:19] Speaker 03:
Judge had not focused on that point, and that as a consequence, that first order didn't cover that.

[00:26:24] Speaker 04:
Right.

[00:26:25] Speaker 04:
Well, for one thing, the judge actually did bring it up in the original remand hearing.

[00:26:29] Speaker 04:
She may not have recalled it on the second, but if you look at Joint Appendix, page 242, she clearly brought it up and asked the plaintiff whether that was part of what he was opposing remand about, and they just sort of blew by it.

[00:26:44] Speaker 03:
In any event, the judge's characterization of the judge's own order suggests that the first order did not contemplate a fee.

[00:26:52] Speaker 04:
Right.

[00:26:52] Speaker 04:
And what she says at the second hearing on what she construed as a reconsideration motion is, look, if you're unhappy with the fee, you can either just refuse to pay it, and then we'll all be back.

[00:27:04] Speaker 04:
And that's OK.

[00:27:05] Speaker 03:
But they have refused to pay it.

[00:27:07] Speaker 03:
So I don't understand.

[00:27:09] Speaker 03:
We know that they won't pay it.

[00:27:11] Speaker 03:
We know that you're demanding that they pay it.

[00:27:14] Speaker 03:
It doesn't sound like a ground for a remand.

[00:27:16] Speaker 04:
It's not clear, at least it wasn't clear to the judge, I don't think at the time, that they were saying no fee.

[00:27:22] Speaker 04:
If you look at their position in their second status report, this is at page 325 of the joint appendix.

[00:27:29] Speaker 04:
Plaintiff says, and I'm quoting, they chose the file suit in order to obtain a judgment and reconsideration of its original application subject to the original fee requirements.

[00:27:38] Speaker 03:
Which I read as meaning, which included the waiver that they say they got.

[00:27:44] Speaker 04:
I read that as saying they want to pay the original fee.

[00:27:47] Speaker 04:
And the reason I read it that way is because in their complaint as well, they say, this is a page four,

[00:27:58] Speaker 04:
I don't have the page in front of me right now.

[00:28:00] Speaker 04:
But in their complaint, they say, after our application was rejected for not paying the fee, we said, OK, we'll pay the fee.

[00:28:09] Speaker 04:
Send us the wiring instructions.

[00:28:11] Speaker 04:
And they never got the wiring instructions.

[00:28:13] Speaker 04:
And then their application was failed.

[00:28:14] Speaker 04:
So they indicate in their complaint that they were perfectly happy to pay that fee.

[00:28:19] Speaker 04:
They just wanted the wiring instructions.

[00:28:21] Speaker 04:
And then in their status report, they wanted to be subject to the original fee requirements.

[00:28:25] Speaker 03:
So they don't say they want to be subject to it.

[00:28:35] Speaker 03:
I'm sorry.

[00:28:38] Speaker 04:
Yes, that is the, are you talking about the complaint?

[00:28:40] Speaker 03:
No, I'm talking about the status report that you were citing on the page before they say, Chu promised to waive the application fee.

[00:28:49] Speaker 03:
Why would he be perfectly happy to pay a $125,000 fee if it had been waived?

[00:28:57] Speaker 03:
Seems very unlikely reading.

[00:28:59] Speaker 04:
Because I think they might think that they know that they're not going to win the waiver issue.

[00:29:05] Speaker 04:
If they had wanted to be remanded subject to a judicial order that there was a waiver, I think they would have said they want a reconsideration subject to the waiver that we were promised, not subject to the fee.

[00:29:18] Speaker 04:
In any event, I think all this would be cleared up in a clean administrative record if there were a remand.

[00:29:26] Speaker 03:
So what is it that would be cleared up whether or not there was a waiver or whether or not you will give a waiver?

[00:29:33] Speaker 04:
what they're exactly asking for, whether their theory is we're entitled to a waiver on some sort of contract theory, or whatever the theory is, or whether we're entitled, whether we agree that we have to pay the fee, but we only want to pay the 2009 fee versus the 2017 fee.

[00:29:52] Speaker 04:
And in their complaint, they have one price.

[00:29:55] Speaker 04:
If it's the latter, that they want to pay the original fee, but they're willing to pay a fee,

[00:29:59] Speaker 04:
In their complaint, they say it's $18,000.

[00:30:03] Speaker 04:
In their June status report, they said it was $31,250.

[00:30:06] Speaker 04:
And at the hearing, they said it was $25,000.

[00:30:09] Speaker 04:
So we could all at least come to an agreement if they said we're willing to pay the original fee from 2009

[00:30:15] Speaker 04:
come to an agreement on exactly what that amount was.

[00:30:18] Speaker 04:
And the district court had even a fourth number.

[00:30:21] Speaker 04:
So we could at least get resolution on that issue as well.

[00:30:23] Speaker 04:
And I think that's perfectly fine.

[00:30:24] Speaker 03:
We don't normally defer remand to the agency for factual determinations.

[00:30:28] Speaker 03:
If things are messy, that's what the district court's for.

[00:30:30] Speaker 04:
No, but sometimes we do it in order to get a clean record so we know what we're talking about before the district court.

[00:30:36] Speaker 03:
I read the government's brief, at least at page three, as saying the application must include a required fee.

[00:30:44] Speaker 03:
I think somewhere else you said it was statutorily required.

[00:30:47] Speaker 03:
Is that right?

[00:30:48] Speaker 03:
Is the government's position that there must be a fee, or is that not the government's position?

[00:30:57] Speaker 04:
Yeah, there is a fee, but I believe it comes from the right.

[00:31:01] Speaker 04:
I think the statute authorizes the fee, and then the fee is set by the agency by rule.

[00:31:06] Speaker 03:
And is your position, that's what you cite the regulations, is your position that there must be a fee?

[00:31:14] Speaker 04:
No, I think that it's perfectly within the secretary's, I think, authority to waive a fee if the secretary wants to in writing.

[00:31:23] Speaker 04:
And why does it have to be in writing?

[00:31:25] Speaker 04:
because by a separate regulation, there can be no modifications of the agreement or the rules except in writing.

[00:31:35] Speaker 03:
So I was looking at a Section 609.16 of the CFR called deviations.

[00:31:43] Speaker 04:
Yes.

[00:31:43] Speaker 03:
To the extent of the requirements under this part are not specified by the Act or other applicable statutes, DOE may authorize deviations and requirements of this part upon a determination by the Secretary in his discretion to undertake a deviation.

[00:32:01] Speaker 04:
Well, to be honest, I don't recall that specific regulation, but we do cite it in our brief, the regulation about requiring changes in writing.

[00:32:11] Speaker 04:
So, for example, if the regulation requires a fee and the Secretary wants to waive that, the Secretary could not make that commitment orally, he or she would have to do it in writing.

[00:32:22] Speaker 03:
So your position is there was no waiver?

[00:32:25] Speaker 04:
That is our position, yes.

[00:32:27] Speaker 03:
So there would have to be a new determination of a waiver, but there could be.

[00:32:30] Speaker 03:
Is that your position?

[00:32:31] Speaker 04:
Yes, on remand, they could certainly say, we think that you should waive the fee, or we think that you should apply only the 2009 fee.

[00:32:40] Speaker 04:
And the agency could make that decision on remand.

[00:32:43] Speaker 04:
I obviously can't commit to what the agency would say, but it's certainly open for them to do that.

[00:32:48] Speaker 04:
And I think that was the district court's point, is if you want to take that position and remand whatever it is, if there's an impasse and you're unhappy,

[00:32:58] Speaker 04:
You get all the issues that you're unhappy with, not just the fee issue, but the merit question can come back.

[00:33:04] Speaker 04:
after whatever resolution is reached.

[00:33:07] Speaker 04:
And you can get judicial review, just like you want it now, of the same question.

[00:33:11] Speaker 04:
You can get it after remand.

[00:33:12] Speaker 04:
And that's exactly why the remand orders are not appealable.

[00:33:16] Speaker 04:
Because all the issues, including the fee issue, all of them, if they're unhappy with any of those, the resolution of any of those issues, they can bring it back before a court.

[00:33:26] Speaker 04:
They want to do it now, but our point is they could do it later too.

[00:33:29] Speaker 04:
There's nothing that's going to prevent them from doing that.

[00:33:32] Speaker 04:
And that is exactly why

[00:33:34] Speaker 04:
the issue is not is not appealable and your honor you you called it I think a dismissal order before I'd like to get back to that there's certainly nothing in here dismissing the action itself and which is whether it's effectively a dismissal by ordering a remand that's not accurately described as a voluntary remand

[00:33:59] Speaker 04:
Well, whether the court retained jurisdiction or not, or even if it... The court didn't retain jurisdiction.

[00:34:05] Speaker 04:
No, it did.

[00:34:05] Speaker 04:
At first it did, and then it didn't.

[00:34:08] Speaker 04:
And in American Hawaii Cruises, this court held that it doesn't matter whether a district court retains jurisdiction for purposes of whether the remand order is appealable.

[00:34:17] Speaker 04:
And I think the fact that the district court wrote it is a final appealable order is not dispositive in this case.

[00:34:27] Speaker 04:
A district court can't put that on anything.

[00:34:30] Speaker 03:
True.

[00:34:30] Speaker 03:
Well, we've said that it gives us an idea in Zyrowski that can bolster the judgment that this is an appealable order.

[00:34:37] Speaker 03:
It's not determinative of our position, but it gives an idea of how the district court regards what it

[00:34:42] Speaker 04:
I think that's right.

[00:34:43] Speaker 04:
But in Swarovski, I think you were dealing with a question of whether the order was intended to dismiss the action versus dismiss the complaint.

[00:34:50] Speaker 04:
But there was no question if it meant to dismiss the action that it was immediately appealable.

[00:34:54] Speaker 04:
But if you take something like a remand order, which generally is not an appealable order, and right, it's a final appealable order, it's no more appealable than if you put that sentence at the end of an order on a discovery motion or something that was equally clearly not an appealable order.

[00:35:11] Speaker 04:
I see him way over my time.

[00:35:14] Speaker 03:
I'm happy to answer any further questions that you have.

[00:35:17] Speaker 03:
I have one more question.

[00:35:17] Speaker 03:
Do you think the court is with, district court is without power to be, imagine that all their facts are correct, that the original determination that they were rejected on the merits is not

[00:35:32] Speaker 03:
True and that the original determination that their battery doesn't do what they think it does.

[00:35:38] Speaker 03:
It's not true It's a district court without authority to vacate that determination Under the APA is it without authority to vacate the original decision.

[00:35:50] Speaker 04:
Yeah No, I don't know why why it would be lack that authority, right?

[00:35:55] Speaker 04:
So

[00:36:00] Speaker 04:
I sense a follow-up question.

[00:36:01] Speaker 03:
Yeah, well, I'm a little confused about the back and forth in the various hearings.

[00:36:05] Speaker 03:
So I think the idea was too late, nothing that can be done.

[00:36:09] Speaker 03:
And the government's position, I thought, was that the most that could happen is that that case could go back for reconsideration untainted.

[00:36:18] Speaker 03:
That's what I took the government's position to be.

[00:36:21] Speaker 03:
And what they're saying is, well, there's another thing that could be done, which is the original determination could be vacated and that they say it causes them reputational injury and that they will have a benefit from having the original decision vacated.

[00:36:38] Speaker 04:
Oh, no, I see where you're going now.

[00:36:41] Speaker 04:
Yes, clearly the district court could.

[00:36:43] Speaker 04:
The question is, does it have to do it now, or could it do it later?

[00:36:47] Speaker 04:
And our position has been, with respect to the fees, the merits, vacatur, all those things, none of them are waived by virtue of the remand.

[00:36:54] Speaker 04:
And if they go back, and whatever decision the agency makes, they're unhappy with.

[00:36:58] Speaker 04:
If they're still unhappy with it, they could go back and they could say, our loan was still denied, and we want it.

[00:37:06] Speaker 04:
We're unhappy with the fee, and we want the original decision vacated.

[00:37:09] Speaker 04:
And all those issues could come up again, which is why it's not an appealable final law.

[00:37:13] Speaker 03:
I thought the government was representing, again, not yourself, to the district court, that the only thing that could happen, even if the plaintiffs won the case, was a reconsideration

[00:37:27] Speaker 03:
untainted, and that therefore you might as well remand for reconsideration untainted.

[00:37:34] Speaker 03:
Their argument, at least in part, is, well, there's actually at least one more thing we want, which is a vacation of the determination.

[00:37:44] Speaker 04:
I don't recall the specific part of the district court's papers, but I will say this.

[00:37:48] Speaker 04:
If that's what was said, I think that was a slight overstating.

[00:37:51] Speaker 04:
I think what the government probably meant in the district court is, what's in substance going to happen is it's going to, even if you win, is it's going to be sent back.

[00:38:02] Speaker 04:
I don't think they meant to say,

[00:38:03] Speaker 04:
that the old decision wouldn't be vacated.

[00:38:06] Speaker 04:
But since you want reconsideration as the main thing going to the substance, because ultimately what we're talking about here is they want their loan.

[00:38:13] Speaker 04:
And they need reconsideration in order to do that.

[00:38:17] Speaker 04:
So ultimately, it's going to go back to the agency, even if they win on the merits on the first go around.

[00:38:22] Speaker 04:
I think that was the point.

[00:38:23] Speaker 04:
Not to say that the district court was without power to vacate the original decision.

[00:38:27] Speaker 04:
I mean, that's clear in the APA that has authority to do that.

[00:38:32] Speaker 01:
And what do you think, again, so I'm clear, we should say on the fees?

[00:38:37] Speaker 04:
Well, what I think you should say is that there's no appellate jurisdiction.

[00:38:40] Speaker 04:
But assuming you get all over that, I think I'm not exactly sure what all the questions are.

[00:38:46] Speaker 01:
But that's tied up with what we say on the fees.

[00:38:48] Speaker 04:
Let me say a couple of things that you could say, all of which I think we would be happy with.

[00:38:52] Speaker 04:
One is that there's no appellate jurisdiction.

[00:38:54] Speaker 01:
Two is that it was all- Because, I mean, it'd be no appellate jurisdiction because everything is being reconsidered.

[00:39:01] Speaker 04:
Yes, including the fees.

[00:39:03] Speaker 04:
And ultimately, I think the bottom line is

[00:39:05] Speaker 04:
no matter if they're unhappy with the resolution of the fee issue, whatever that is, whether it's an impasse or a dispute about the amount or which year's fees, whatever it is, if they're unhappy with it, they can get whatever judicial remedy they can get for that that they want now, they can get it after the remand as well.

[00:39:25] Speaker 01:
I understand.

[00:39:25] Speaker 01:
I mean, they think it's a shell game, I think, that you're really not going to reconsider the fees.

[00:39:32] Speaker 04:
Well, I mean, they say that we're not going to reconsider the merits, either.

[00:39:35] Speaker 04:
But clearly, that's not anything that anyone has any question about, whether that's proper to remand.

[00:39:40] Speaker 03:
See, all from a voluntary that you made of a remand, did it include reconsidering the fees?

[00:39:49] Speaker 03:
My understanding, when I read the hearing transcript, is the government's position is you have to pay the fees.

[00:39:55] Speaker 03:
Sorry.

[00:39:58] Speaker 03:
The court granted a voluntary remand on the theory that there would be a remand.

[00:40:03] Speaker 03:
Now you're representing that the remand would include a reconsideration of the fees.

[00:40:09] Speaker 03:
I'm asking whether the government originally represented that.

[00:40:13] Speaker 04:
No, but I think I want to be clear about the second part, which is I'm not representing anything

[00:40:18] Speaker 04:
Like you just said, what I'm representing is if they want to ask for a waiver on remand, they're entitled to do so, and then the agency would decide.

[00:40:26] Speaker 01:
Well, doesn't that affect our jurisdiction?

[00:40:29] Speaker 01:
The point, because if you're saying that there's an issue that's not going to be reconsidered, even with the fees, then you haven't done it voluntarily.

[00:40:41] Speaker 01:
As Chief Judge Carlin has said, it doesn't look like a voluntary remand to reconsider everything.

[00:40:45] Speaker 04:
Well, we're certainly reconsidering at the minimum the ATVM for which there's no fee.

[00:40:51] Speaker 01:
But it has to be reconsideration, I think, of everything that they're complaining about in order for it to be a true voluntary remand.

[00:41:00] Speaker 01:
I think that's the trick in this case, and that's why the fees question seems to be

[00:41:06] Speaker 01:
one of the keys because if you're not willing to reconsider the fees, then it seems like we have jurisdiction and it's not a voluntary remand in the ordinary sense.

[00:41:17] Speaker 04:
Well, I do think that, first of all, I don't know what the answer would be if on remand they asked for some sort of fee waiver.

[00:41:24] Speaker 04:
Second, I think we would clarify exactly what their position is, because it's been a number of positions in terms of whether they think they're entitled to no fee, or whether they only think they're entitled, or whether they agree that there's a fee, but it's only for 2009.

[00:41:37] Speaker 04:
And then we would get some resolution, perhaps, with them on what they thought the amount was, because they've given three different numbers.

[00:41:44] Speaker 01:
Is it possible that we have appellate jurisdiction, but the proper disposition in the end is a remand to the agency nonetheless?

[00:41:52] Speaker 04:
I'm sorry, could you repeat that question?

[00:41:54] Speaker 01:
That we have appellate jurisdiction because there was a final order, but that in the end, the proper disposition, although it may not be a voluntary remand, is a remand to the agency, including for reconsideration of the fees question.

[00:42:10] Speaker 04:
I mean, I think from the agency's point of view, whether it's called a voluntary remand or just a remand doesn't make that much of a difference.

[00:42:17] Speaker 04:
I think it does make a difference for

[00:42:19] Speaker 04:
the law of appellate jurisdiction.

[00:42:21] Speaker 04:
And I would say that I think that because whatever resolution were reached or if no resolution were reached on remand with respect to the fee issue, all that issue would be back before the court after the ATVM issue was resolved.

[00:42:42] Speaker 04:
And because all of the issues about fees are open to the plaintiff,

[00:42:47] Speaker 04:
following remand, that's precisely why no core issue, including the issue on the fee, was actually resolved, nor would plaintiff be prohibited from raising those issues in future proceedings.

[00:42:58] Speaker 04:
And because of all those reasons, none of the exceptions to remand orders being unappealable would apply.

[00:43:08] Speaker 04:
It wouldn't be a collateral order because the issue remains open after the remand.

[00:43:15] Speaker 04:
And because all those issues remain open, it's just not an appealable order.

[00:43:19] Speaker 04:
So I don't know how we get to the point that even the discrete fee issue becomes appealable if it remains open to the plaintiffs to argue about the fee question after the remand proceedings.

[00:43:33] Speaker 04:
So it would have to be something final.

[00:43:35] Speaker 04:
And there's no finality about the fee issue, no matter what happens on remand with the fee.

[00:43:45] Speaker 03:
Imagine it were, imagine we were to hold that with respect to the LG issue, that a remand, this is not a remand, called a remand, but it's not a remand, but that you're right with respect to the other issue.

[00:44:02] Speaker 03:
What about that question of whether the court's order is final disposition in light of having resolved some but not all of the

[00:44:11] Speaker 03:
issues in the case?

[00:44:12] Speaker 04:
Well, that's a great question.

[00:44:14] Speaker 04:
I think that would actually, you're welcome, would underscore the nonfinality.

[00:44:19] Speaker 04:
Because if you would analogize it, I think, to a question where a party brought two claims in their complaint and the district court reached the final resolution as to one and not as the other.

[00:44:28] Speaker 04:
And under Rule 58, there's nothing final there.

[00:44:30] Speaker 04:
So even if you thought the court did something final with respect to the fees, which I don't think that it did, but if you did that, you would also say, and everyone seems to agree with this, that nothing final was done with respect to fees for ADBM because there are no fees.

[00:44:45] Speaker 04:
And so even if the court, for example, had said, I'm going to remand one of these issues back to the agency,

[00:44:53] Speaker 04:
And but not the other.

[00:44:55] Speaker 04:
I'm going to hold on to it and wait.

[00:44:57] Speaker 04:
I think the answer would be that remand order is not appealable both because it's a remand order and because it doesn't part of the case is unresolved.

[00:45:06] Speaker 04:
So I think I mean that's.

[00:45:08] Speaker 04:
I'm happy to answer more questions.

[00:45:12] Speaker 03:
I've got one more.

[00:45:14] Speaker 03:
In the time available, we've now been able to look at the government's offer for the remand.

[00:45:20] Speaker 03:
So as remand will provide a petitioner with another chance to perfect this application as well as pay the LG program filing fee, as Lumia has indicated is willing to do.

[00:45:33] Speaker 03:
That plenty, of course, doesn't think it's willing to do that.

[00:45:36] Speaker 03:
So it just wasn't an offer to do it without a fee.

[00:45:40] Speaker 04:
No.

[00:45:40] Speaker 04:
I mean, no.

[00:45:42] Speaker 04:
But again, what I'm saying is we didn't offer to do it with no fee, because we don't think we waived anything.

[00:45:48] Speaker 04:
But all I'm saying here now is we're not offering to waive anything right here, right now.

[00:45:53] Speaker 04:
But what we are saying is it's open to the plaintiff on remand to go back and say, for all these reasons, we think it's compelling that you waive the fee.

[00:46:01] Speaker 04:
But we certainly raised it.

[00:46:03] Speaker 04:
I agree with you.

[00:46:03] Speaker 04:
There's four times in our motion for remand that we said that they're going to have to pay the fee.

[00:46:10] Speaker 04:
And the reason why we said at the end of the sentence, as they've indicated that they're happy to do, is because their own complaint, this is a joint appendix, page 26,

[00:46:20] Speaker 04:
says, well, after they alleged that we reneged on a waiver, and then afterwards they said, well, we're happy to pay the fee, just send us the wiring instructions, and we never got it.

[00:46:31] Speaker 04:
That's obviously not a verbatim quote, but that's the gist of it on page 26.

[00:46:34] Speaker 04:
So we understood them

[00:46:37] Speaker 04:
to say we're willing to pay a fee, but maybe they want to pay the 2009 fee instead of the 2017 fee.

[00:46:46] Speaker 04:
But we were very, very clear about it.

[00:46:47] Speaker 04:
We said it four times.

[00:46:49] Speaker 04:
And the district court, as I said before, brought it up, albeit briefly, at Joint Appendix 242 at the remand hearing.

[00:46:57] Speaker 04:
And it's the obligation on the other side that they think that the fee issue is the main hurdle here

[00:47:03] Speaker 04:
then it's their obligation on the motion to bring that up and make sure that what they did instead is essentially overlook the four times we said they'd have to pay the fee, go back on remand, and after we declined to adopt the five preconditions that they set for the remand, months later they went back to the district court and kicked up this fee issue.

[00:47:26] Speaker 04:
Okay, I think we had that argument.

[00:47:28] Speaker 04:
Okay.

[00:47:28] Speaker 04:
Sorry, Your Honor.

[00:47:29] Speaker 04:
That's all right.

[00:47:29] Speaker 04:
Thank you.

[00:47:42] Speaker 03:
Can you address the ATVN issue first?

[00:47:44] Speaker 06:
Yes.

[00:47:45] Speaker 06:
The ATVN issue is true.

[00:47:48] Speaker 06:
You don't have to pay a fee on that particular application.

[00:47:50] Speaker 06:
We did them jointly each time.

[00:47:52] Speaker 06:
They were singular in my client's mind.

[00:47:56] Speaker 06:
We applied for them jointly.

[00:47:57] Speaker 06:
But we still have the problem of we don't have a remand order that says the folks doing this decision won't be the people who did the decision before.

[00:48:08] Speaker 06:
And we don't have a vacation of the original order.

[00:48:10] Speaker 06:
So on ATPN, those are our two complaints on that particular loan program.

[00:48:17] Speaker 03:
We believe that... You have a representation from the government that they won't be the same people, right?

[00:48:21] Speaker 06:
know your honor i don't think it's that clear what happened at and listening to uh... opposing counsel and listen to me there's some uh... it's pretty clear that both sides were unclear as to what the remand order uh... required and and i think that was enough

[00:48:41] Speaker 06:
The government thought one thing, we think another thing.

[00:48:43] Speaker 06:
That's why part of the reason we're here.

[00:48:45] Speaker 06:
We asked specifically after the remand, we asked specifically, will you waive fee?

[00:48:53] Speaker 06:
And they said, no, it's in our letter.

[00:48:55] Speaker 06:
It's in the appendix at 283 paragraph 2.

[00:48:57] Speaker 06:
So I don't think there's any question.

[00:48:59] Speaker 06:
We thought the fee was waived, and we wanted it waived below.

[00:49:02] Speaker 06:
And when it was remanded, that's the first thing we asked for.

[00:49:06] Speaker 06:
On the ATN program, yes, you can.

[00:49:10] Speaker 06:
We could apply for that now outside this courtroom without any order.

[00:49:14] Speaker 06:
Whatever is open right now, my client could go do it.

[00:49:16] Speaker 06:
There is some fear, I think, on our side about waiver if we were to do it outside.

[00:49:23] Speaker 06:
I believe there's some concern about that because we do have a court proceeding.

[00:49:28] Speaker 06:
But to be candid with the court, our problem there is we think the remand order, if it was going to be a remand order, would have to say,

[00:49:36] Speaker 06:
No bias, move these people.

[00:49:39] Speaker 06:
So that is our sole complaint on that side.

[00:49:41] Speaker 03:
But the government represented that those people are gone.

[00:49:45] Speaker 03:
I appreciate you think they're not, but the government represented that they were gone, or you don't know whether they're gone.

[00:49:49] Speaker 03:
And the government didn't know all the people involved was the real problem.

[00:49:53] Speaker 03:
And the district court on that representation sent it back.

[00:49:58] Speaker 03:
So if you don't get the result you want, then you can raise that issue back again on the remand.

[00:50:04] Speaker 03:
Why isn't that an appropriate remand?

[00:50:07] Speaker 06:
How am I going to know who was involved in the first one?

[00:50:10] Speaker 03:
Well, that's a question whether you're entitled to discovery or not, I guess.

[00:50:12] Speaker 03:
Right?

[00:50:13] Speaker 03:
Is that what you're asking?

[00:50:14] Speaker 03:
What if you win?

[00:50:15] Speaker 03:
Then you won't have a problem with it.

[00:50:19] Speaker 03:
So the district court is avoiding having to go through the whole discovery matter until you get to that stage.

[00:50:26] Speaker 03:
Take everything else out of the case, and imagine all you were asking for was on the ATVN, and the government represents those people are gone, and the court says, all right, we're going to just remand on that representation, because that's clearly what the government's doing, what the court's doing.

[00:50:41] Speaker 03:
And there's no fee.

[00:50:43] Speaker 03:
Would that have been all right?

[00:50:45] Speaker 06:
Your Honor, I don't think it would have for this reason.

[00:50:48] Speaker 06:
It isn't as if they're reconsidering.

[00:50:49] Speaker 06:
They're asking us to do something anew.

[00:50:51] Speaker 06:
I haven't seen any of these cases where the we man makes the plaintiff do something anew.

[00:51:00] Speaker 06:
It's really to allow the agency to review something.

[00:51:02] Speaker 03:
And that's on the end of making a new application, that's your understanding.

[00:51:05] Speaker 03:
Correct.

[00:51:06] Speaker 03:
Imagine that they didn't require that.

[00:51:08] Speaker 03:
Just so I get the different pieces separate in my head.

[00:51:10] Speaker 03:
If they didn't require that.

[00:51:11] Speaker 03:
But the vacation issue still hasn't been decided.

[00:51:15] Speaker 03:
Would it not be appropriate for the court to try to resolve part of a case by remanding?

[00:51:20] Speaker 03:
That is, whether you get the loan.

[00:51:22] Speaker 03:
And then thereafter, after that's all done, assuming you got the loan, would you still be able to go back and ask for the vacation of the original order then?

[00:51:31] Speaker 06:
For ATVN.

[00:51:34] Speaker 06:
could we ask for the vacation of that original order that denied it?

[00:51:39] Speaker 06:
The determination that you were without merit.

[00:51:42] Speaker 06:
I am concerned, let's say we won, I am concerned that we wouldn't be able to do that because the government would say it's moot, look, you've got it now, that vacation doesn't do anything to my clients.

[00:51:51] Speaker 03:
You either have a reputational injury or you don't.

[00:51:53] Speaker 03:
Correct.

[00:51:53] Speaker 03:
Your argument is that that's never moot, so you'd have the same argument before.

[00:51:57] Speaker 03:
Yes, sure, under that hypothetical, yes.

[00:52:05] Speaker 03:
This discussion with respect to the other, with the LG, about your willing to wire the money later, what?

[00:52:12] Speaker 06:
Oh, your honor, that was my client.

[00:52:15] Speaker 06:
That is to show political bias in the complaint, all right?

[00:52:19] Speaker 06:
That it was denied even after this.

[00:52:21] Speaker 06:
We believed it was waived.

[00:52:22] Speaker 06:
We were told it was waived.

[00:52:23] Speaker 06:
We acted at all times as if it was waived.

[00:52:26] Speaker 06:
When we submitted this, according to the complaint, they then said, oh, you need to do this.

[00:52:31] Speaker 06:
Obviously, there's panic and what's going on, and we said we'd send a wire, and they never sent the instructions.

[00:52:37] Speaker 06:
But that doesn't mean that we're not relying on that representation.

[00:52:40] Speaker 06:
And as I do refer, Your Honors, to Appendix 283, paragraph 2, which is exactly what we did after the remand.

[00:52:53] Speaker 03:
Thank you very much.

[00:52:55] Speaker 03:
I will take the matter under submission, and we'll hear the next case.