[00:00:01] Speaker 06:
Case number 17-5206, Daniel Boghosa at L, Appellant versus United States Department of Homeland Security at L. Ms.

[00:00:10] Speaker 01:
Davidoff from the Appellant, Mr. Stern from the Appellate.

[00:00:15] Speaker 01:
Is it Davidoff?

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Davidoff.

[00:00:17] Speaker 01:
Davidoff.

[00:00:18] Speaker 01:
Ms.

[00:00:18] Speaker 01:
Davidoff, welcome.

[00:00:20] Speaker 01:
You may proceed.

[00:00:21] Speaker 00:
Thank you, Your Honor, and good morning.

[00:00:23] Speaker 00:
May it please the Court, I'm Amanda Davidoff, appearing for Appellant.

[00:00:27] Speaker 00:
When my clients applied for home repair assistance,

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FEMA used secret standards to issue denials and then forced them to appeal without revealing what criteria, standards, or procedures it used to determine eligibility.

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The first issue I plan to address is one of first impression, whether this court can review whether FEMA violated FOIA's prohibition against using secret rules to adversely affect any person.

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If so, reversal is required on that ground alone.

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In addition to FOIA, the court should also reverse because FEMA violated three Stafford Act provisions that contain mandatory requirements for the rules FEMA must publish, leaving no discretion for FEMA to proceed without standards or to use secret ones.

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And importantly, FEMA's rulemaking procedures are not at issue in this case.

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We are instead seeking an order that FEMA publish the rules it already uses to implement home repair assistance.

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Beginning with FOIA, the discretionary function exception does not bar our FOIA claims because the conduct we challenge is not discretionary.

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The conduct we challenge is adversely affecting claimants based on unpublished rules and under Morton v. Ruiz,

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and the plain language of the statute, FEMA had no discretion to do that.

[00:01:56] Speaker 04:
That's a bold interpretation of Morton v. Ruiz, who has mystified administrative law scholars for years.

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Morton isn't the only case that prevents

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from adversely affecting claimants based on unpublished standards.

[00:02:12] Speaker 04:
It's really in the statute itself, Your Honor, and that's specifically what 552A... Well, the statute refers to different policies, some of which have to be published in the Federal Register and some of which don't.

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How do you determine which are which?

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What 552A1 says is that rules, substantive rules of general applicability, interpretive rules and procedure rules, all of those have to be published if they're going to be used to adversely affect a person.

[00:02:39] Speaker 02:
And what we know from the staffer... But what does 552A2 say?

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552A2 talks about the circumstances in which FEMA would have to provide reading room access for purposes of other interpretive procedures or policies.

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But it doesn't say that where reading room access is required, those types of rules aren't subject to 552A1.

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At the very least, you know, that is FEMA's argument that because... Two types of policies, two types of rules.

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That is FEMA's argument that there are two types of policies and rules, and so the decision of which type to issue is a discretionary one.

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Your Honor, we submit that's simply not supported by the case law.

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JV is the principal case on which FEMA has to rely for this.

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It's the only district court case in the line of three cases they cite, JV, Rosas, and St.

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Tammany.

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JB simply isn't a discretionary function exception case.

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In the portion of the opinion that was signed by three judges, the court reached a holding about the scope of the Federal Tort Claims Act, not about the discretionary function exception.

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Do you disagree with the government that there are categories of

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policy statements and administrative manuals addressed by other sections of FOIA that don't have to be published?

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There may be, Your Honor.

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Because, boy, if you do, I mean, that would revolutionize FOIA practice.

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Your Honor, there may be categories of manuals that don't have to be published.

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We've alleged in this case

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that FEMA has secret substantive rules of general applicability that it uses to adversely affect claimants.

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And it's a plausible allegation.

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Why are they adversely affected?

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Does adversely affected mean the same thing there that it does throughout the APA?

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Wasn't Congress saying there that you can't be penalized?

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I notice you cite satellite broadcasting.

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which I'm quite familiar with, as you know.

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And there's a case in which somebody was told that their filing was in the wrong spot, so they lost their opportunity to preserve a claim.

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And we said, wait a minute, you never published where the right spot was, so that's not fair.

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And that clearly would be, I don't remember whether we relied on this particular section, too, or whether we just said it was arbitrary and capricious.

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But I don't see quite why

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the adversely affected language in your part of FOIA you're talking about doesn't really refer to a penalty.

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Were you penalized because you didn't know about this rule that should have been published?

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Now, why were you penalized in your case?

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Well, first of all, we don't agree that adversely affected refers to a penalty.

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And the right procedure here, because plaintiffs haven't had a chance to prove adverse effect, is for them to obtain the access to the administrative record so that they can show what secret rules were used specifically to adversely affect them.

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In other words, it's an issue for remand.

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But even if the court didn't agree with that,

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This court's jurisprudence is clear that denial of access to the rules that were used to decide a claim for benefits can, in and of itself, be an adverse effect.

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It's akin to if... You're under due process analysis, you mean, which you did not make that argument.

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We didn't make a due process claim here, although, Your Honor,

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The Stafford Act really does bring in concepts of due process by ordering FEMA to put in place rules that ensure equitable determination of claims.

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That's a big jump.

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That's a big jump.

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First of all, as you recognize, the Supreme Court has never accepted the proposition that an application for benefits is a property interest under the due process clause.

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The Second Circuit has, but not the Supreme Court.

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So that's so that there's no due process claim in this case.

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There's no due process claim, but we do have to give meaning to the words of the statute, including the word ensure equitable distribution of benefits.

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I know of no better way to give meaning to that statute than by reference to this court's due process jurisdiction, jurisprudence.

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But that's in the context of a statute where the benefits are wholly discretionary.

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We're just talking about eligibility criteria.

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So to use that statute as the predicate for a

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a state-created property right seems pretty unlikely.

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Well, and we haven't argued that there's a state-created property right here.

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What we are arguing is that it's rudimentary that discretion as to the ultimate decision over whether to make a benefit available does not give an agency discretion not to follow required procedures.

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That's the Supreme Court's decision in Bennett versus Spears.

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That's the Ninth Circuit's decision in Graham versus FEMA, specifically as applied to FEMA.

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And the list goes on of cases that have said when you have discretion over the final decision, you don't necessarily have discretion over how to get there.

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And very importantly, we're not talking about a situation where there is plenary discretion over who gets benefits.

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Yes, FEMA has discretion to decide whether to make

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individual household holds program relief available to individual claimants.

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But once it makes that decision, it is constrained by the language of the statute in terms of how it makes that decision.

[00:08:17] Speaker 01:
Before we get, you're shifting over into the Stafford Act claims, I think.

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So before we get there, can I just ask on the FOIA, you seem now to be wanting to present a pure FOIA claim, you know, just publish,

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just publish all your interpretive rules, independent from how Stafford Act cases are adjudicated.

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But in your complaint, the relief, the FOIA-related relief you seek all seems much more tied up in the Stafford Act claims.

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You want an injunction that prevents FEMA

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from using unpublished rules to decide disaster applications and order remanding applications.

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So I'm not sure you've articulated the pure FOIA claim that you seem to want to be pressing now.

[00:09:16] Speaker 00:
The FOIA relief, and there are two types of relief we seek for the two types of claims, but under FOIA the relief my clients are entitled to is to have their claims reconsidered by FEMA without reference to the ones that were added.

[00:09:28] Speaker 01:
No, under FOIA the relief you're entitled to is to, the most you're entitled to is to have the agency publish everything that falls in the category of interpretive rules as opposed to other policy statements or administrative manuals.

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We certainly would not argue with that relief, Your Honor.

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We believe in addition to that, we're entitled to have our client's claims re-adjudicated without using rules, without adversely affecting them based on rules that weren't public at the time those applications were submitted.

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That's the relief the Court

[00:10:08] Speaker 01:
So is there any case that uses FOIA not as a basis for ordering release of documents or publication of documents, but as a predicate for imposing procedural requirements on adjudications under other statutes that create one or another kind of government benefit?

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I've seen a lot of FOIA cases.

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I don't remember anyone like that.

[00:10:38] Speaker 00:
Morton v. Ruiz was a case where that was ordered, Your Honor.

[00:10:42] Speaker 04:
Well, that wasn't even a FOIA case.

[00:10:44] Speaker 00:
Well, 552A1 was at issue in that case as well.

[00:10:49] Speaker 04:
It's true, but I read it over and over.

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Justice Blackmun's opinion is utterly mystified.

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So I don't know what you can get out of Morton v. Ruiz.

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But in any event, back to the question that my colleague was just asking, assuming

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you would prevail on the FOIA argument.

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And there was disclosure of whatever criteria, assuming there is criteria.

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Do you know there is criteria?

[00:11:21] Speaker 00:
We do know there is criteria.

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We put it in our complaint, and it's also plausible, given that... So it's published.

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Then what?

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What's the next step?

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So my clients would be entitled to a re-adjudication of their claims.

[00:11:37] Speaker 04:
Why?

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because they were adversely affected based on rules they didn't have access to.

[00:11:42] Speaker 04:
So in other words, you'd never get to Stafford.

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Is that your theory?

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You'd never get to the Stafford statute at all?

[00:11:49] Speaker 00:
Well, it would be important for this court to rule on both statutes.

[00:11:52] Speaker 04:
No, no, wait a minute.

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I'll see if I can understand it.

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If you get to the relief you want under FOIA, your claim is, let me hear you make your claim.

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You got your criteria.

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Now what?

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If you get your relief under FOIA, the criteria have to be shown to my clients and entitled to re-adjudication.

[00:12:13] Speaker 04:
Yes, and then what?

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And under the Stafford Act, FEMA also... So in other words, there's no way you can get relief except going back to the Stafford Act?

[00:12:24] Speaker 00:
Well, my clients would be relieved by having the standards shown to them and then having their claims re-adjudicated.

[00:12:29] Speaker 04:
But the only way you can have your claims re-adjudicated is with respect to the Stafford Act, wouldn't you?

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In other words, FOIA doesn't give you any right to have the claims retried.

[00:12:43] Speaker 04:
So in other words, you're inevitably forced back to the Stafford Act.

[00:12:46] Speaker 00:
You know, we believe we didn't were entitled to that relief under FOIA, but it doesn't matter because we also should prevail under the Stafford Act.

[00:12:52] Speaker 04:
No, no, no.

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My point is even if you get your relief under FOIA, that doesn't give you any substantive relief.

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And then you're faced with the Stafford Act, right?

[00:13:01] Speaker 00:
Publication in and of itself would be substantive relief, for example, for my associational client.

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But my point, Your Honor, is that FOIA does entitle my clients to re-adjudication of their claims without being adversely affected by rules that weren't published.

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It may be... FOIA doesn't say that.

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FOIA does not say that.

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It may be that FEMA has to re-adjudicate

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based on the rules, only the rules that were public in 2016 when it decided these claims.

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That may be the relief, that it can't use newly published rules to decide the claims.

[00:13:38] Speaker 04:
Isn't this a problem in which this is a backwards way of undermining the restriction on judicial review in Stafford?

[00:13:47] Speaker 00:
Not at all, Your Honor.

[00:13:48] Speaker 00:
Not at all.

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First of all, section 559 of the APA says that, enacted in 1966, says that no subsequently enacted statute is going to amend or modify FOIA unless it does so expressly.

[00:14:02] Speaker 00:
5148 doesn't do that.

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So right out of the gate, 5148 can't be the basis for finding that there's no FOIA claim here, that the discretionary function exception bars consideration of the FOIA claim.

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In addition, when you read the Stafford Act altogether, the purpose of the provisions that we're looking at here is to provide eligibility standards, standards for determining eligibility, criteria, standards, procedures.

[00:14:31] Speaker 00:
In other words, to constrain the discretion of the agency to give notice so that these applications can be determined in an equitable way and so that people can have fair appeals.

[00:14:42] Speaker 00:
Yes, there's a discretionary function exception in the Stafford Act,

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But there are also these mandatory commands to FEMA to issue certain rules.

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And when you look at those mandatory commands in comparison to Section 5164 of the Act, which already gives FEMA authority to issue whatever rules it thinks are necessary in order to carry out the Act, we have to understand those three provisions as imposing a greater mandate on FEMA, something more than just whatever it thinks is necessary.

[00:15:11] Speaker 04:
If the criteria exist and they're public,

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Now, you suggest that they're different than the file, what's in the file.

[00:15:22] Speaker 04:
Your clients can demand what's in their file.

[00:15:27] Speaker 04:
And in their file, there would be, it's not clear from the briefs, there would be an indication of why they were denied X or Y. Actually, we don't know what would be in the file, Your Honor.

[00:15:37] Speaker 04:
Why?

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Haven't you ever asked for files?

[00:15:39] Speaker 00:
Why wouldn't you ask for files for your client?

[00:15:43] Speaker 00:
Well, FEMA has the obligation.

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FEMA says in its rules that people can ask for their clients.

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It doesn't undertake any obligation to provide those files within the 60-day appeal period.

[00:15:54] Speaker 04:
Have you asked for files?

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You've never even asked for files?

[00:15:57] Speaker 00:
I will have to give... I don't know the answer, Your Honor, but I will respond.

[00:16:00] Speaker 04:
But the files presumably would tell you why you were denied.

[00:16:04] Speaker 00:
Well, the files are not going to say the rules of decision that FEMA use.

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They're not going to state... They're going to state why you're denied.

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They may or may not.

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There's no obligation in the rules that FEMA do that.

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But that's not what this is about.

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This is about FEMA having to issue published binding rules that contain an identifiable standard for how it determines eligibility.

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And that is what the district, that's what this court's long line of cases beginning with MST really requires in circumstances where a statute says set forth a method

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set forth a criteria, set forth a standard.

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You agency set it forth.

[00:16:43] Speaker 01:
The statute is mandatory in the sense that it requires rules to be promulgated, but it is also very open-ended in terms of the necessary content of the rules.

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The principal provision you cite just says shall issue regulations to carry out the act

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and include criteria standards and procedures for determining eligibility.

[00:17:12] Speaker 01:
The agency's done that.

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You have ten criteria of exclusion and nine criteria of inclusion.

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This can't remotely be described as just a parroting regulation.

[00:17:24] Speaker 00:
The reason that the regulations are insufficient is because they really don't align with what this Court has required in its line of MST, Ethel, Oceana cases.

[00:17:33] Speaker 00:
What those cases say is that when Congress has said, put forth a standard, put forth criteria, put forth a procedure for doing X, it requires the agency to put forth an identifiable standard.

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And that we do not have that here.

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What the district court found and what FEMA has argued is that what the regulations do is significantly narrow the group of people who may be eligible for... Which seems like they are rules regarding eligibility.

[00:18:03] Speaker 00:
Rules regarding eligibility are not an identifiable standard.

[00:18:06] Speaker 00:
This is quite similar to the MST case, for example, where the agency had put out 11 criteria for

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for carriers to meet safety fitness requirements, and even had defined the word adequate, just like FEMA includes some definitions here.

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The court looked closely at those regulations and said, no, there's no identifiable standard here.

[00:18:29] Speaker 02:
That's the same thing the court... That's the case with the escape hatch, right?

[00:18:35] Speaker 02:
An unconstrained escape hatch?

[00:18:37] Speaker 00:
That's not the case with the escape hatch.

[00:18:39] Speaker 00:
escape hatch, Your Honor.

[00:18:40] Speaker 00:
That was where the court had set forth 11 factors for determining safety fitness, but it hadn't promulgated the actual standards it was using to determine safety fitness.

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And what the court said was, because the carriers can't use these regulations to determine

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what their safety fitness rating is going to be, the agency hasn't fulfilled its duty to establish a means of deciding whether carriers meet safety fitness.

[00:19:10] Speaker 00:
Means of deciding was the congressional command.

[00:19:12] Speaker 00:
I think Your Honor is thinking of Oceana, where

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where the agency had been ordered to establish a standardized reporting methodology.

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And what it had done was establish a benchmark from which, and this is the words of the court, what it had done was establish a benchmark from which the agency freely can depart.

[00:19:33] Speaker 00:
And the court said a non-binding rule is no rule at all.

[00:19:36] Speaker 00:
Well, that's exactly what we have here.

[00:19:38] Speaker 00:
All of the rules that Judge Katz has referred to are rules that say FEMA may grant relief in this circumstance.

[00:19:45] Speaker 01:
Only in the following circumstances.

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May grant relief in that circumstance.

[00:19:49] Speaker 00:
In other words, it doesn't constrain.

[00:19:50] Speaker 01:
Well, it doesn't compel

[00:19:54] Speaker 01:
the award of relief in any particular case, but it constrains the circumstances in which relief would be permissible.

[00:20:03] Speaker 00:
Right.

[00:20:04] Speaker 00:
As the district court put it, it's significant narrowing or narrowing.

[00:20:08] Speaker 00:
We can disagree over whether it's significant.

[00:20:09] Speaker 01:
Which implements a mandatory obligation to spell out not entitlement, but eligibility.

[00:20:17] Speaker 00:
Narrowing, though, is not sufficient under this court's precedence.

[00:20:21] Speaker 00:
I mean, MST, the 11 standards narrowed who could be eligible.

[00:20:25] Speaker 01:
Oceana, the... So you read this shall issue regulations to carry out the act as requiring a...

[00:20:36] Speaker 01:
an elaborate code of regulations that will specify in each circumstance who does or doesn't get relief, does or doesn't.

[00:20:46] Speaker 01:
In the context of a statute that creates no entitlements and is designed to govern by definition emergency circumstances where the agency is getting flooded with hundreds of thousands of applications and there's a huge premium on

[00:21:05] Speaker 01:
quick action in real time.

[00:21:08] Speaker 00:
I'd like to start with your last point, which is that there's some difficulty in carrying out this relief.

[00:21:15] Speaker 00:
There really isn't.

[00:21:16] Speaker 00:
FEMA uses contractors to provide disaster assistance.

[00:21:20] Speaker 00:
It gives rules to those contractors that they use to determine who's eligible.

[00:21:24] Speaker 00:
All we're asking here is that those rules it gives to its contractors be also given to the people applying for relief.

[00:21:31] Speaker 01:
Well, but your legal theory on the Stafford Act points is that any set of regulations that doesn't obviously dictate outcomes that can be determined in advance just from reading the regulations doesn't go far enough.

[00:21:50] Speaker 00:
Every case looks at a different statute and so they all have to be read differently.

[00:21:55] Speaker 00:
In American trucking, the court looked at the statute, the same statute that had been at issue in MST, and looked at the regulations that were in place and said, this is enough of an identifiable standard.

[00:22:07] Speaker 00:
In MST, it was comparing the same statute to different regulations and said this isn't enough of an identifiable standard.

[00:22:12] Speaker 01:
Sure, it's a question of degree, right?

[00:22:14] Speaker 01:
And the degree here seems to be left to the agency's discretion.

[00:22:20] Speaker 00:
But what we don't have is an identifiable standard.

[00:22:25] Speaker 00:
We just have a narrow.

[00:22:26] Speaker 00:
And we don't have any standard for determining eligibility.

[00:22:30] Speaker 00:
It's just saying, those people aren't eligible.

[00:22:33] Speaker 00:
But not saying how you decide among the remainder of the people who is eligible.

[00:22:38] Speaker 01:
But the remaining people are the eligible ones.

[00:22:40] Speaker 00:
Well, but some of them, as it turns out, under these secret rules, are not eligible.

[00:22:46] Speaker 00:
That's the problem.

[00:22:47] Speaker 04:
How do you know those secret rules?

[00:22:49] Speaker 00:
Well, a couple of reasons, Your Honor.

[00:22:51] Speaker 00:
First, we're at the motion to dismiss the stage we've pledded in our complaint.

[00:22:54] Speaker 04:
Well, you can't plead a fact that you have an obligation under the ethics rules.

[00:23:03] Speaker 04:
make a statement that you know about.

[00:23:05] Speaker 04:
You know there are secret rules.

[00:23:06] Speaker 00:
We do, Your Honor.

[00:23:07] Speaker 00:
Well, how do you know that?

[00:23:08] Speaker 00:
That's because of my client's Lupe case in the Fifth Circuit where discovery did proceed and my client obtained access to thousands of pages of unpublished rules, secret rules.

[00:23:20] Speaker 00:
We've asked to obtain those records here so that my clients can show adverse effect and show that these are the kinds of rules that have to be published under the Stafford Act.

[00:23:27] Speaker 00:
but we don't have that access yet.

[00:23:29] Speaker 00:
But based on Lupe, we know those rules are out there.

[00:23:31] Speaker 00:
They are different from disaster to disaster, and the Lupe disaster was a different one.

[00:23:35] Speaker 04:
Oh, there are different published rules for each disaster?

[00:23:40] Speaker 00:
They're not, as we understand it, they're not dramatically different, but they are different.

[00:23:45] Speaker 00:
But again, this is not a big burden, because all FEMA has to do is give us the rules it gives to its contractors.

[00:23:51] Speaker 00:
It's got to send them to its contractors at some point before they decide eligibility.

[00:23:54] Speaker 00:
We want them to.

[00:23:56] Speaker 02:
Council, can I get your interpretation of 552A2?

[00:24:03] Speaker 02:
Because your brief doesn't discuss it at all.

[00:24:07] Speaker 02:
And it has a requirement that various things be made available for public inspection.

[00:24:14] Speaker 02:
And it looks as if there's considerable potential overlap between the things governed by two and the

[00:24:24] Speaker 02:
types of documents governed by one, and you don't discuss how that line is drawn or who draws it.

[00:24:34] Speaker 00:
There may be an overlap, Your Honor.

[00:24:37] Speaker 00:
There's one significant difference, which is that if it's a rule, it's got to be published, right?

[00:24:42] Speaker 00:
552A1 uses the rule.

[00:24:44] Speaker 02:
Rule does not appear in A2, I agree.

[00:24:47] Speaker 00:
Right, 552A1 uses the word rule, 552A2 does not.

[00:24:52] Speaker 00:
The requirement that FEMA is under the Stafford Act is to use rules to determine how it works.

[00:24:57] Speaker 04:
Wait, wait, wait, wait, wait.

[00:24:58] Speaker 04:
You're not talking about the Stafford Act.

[00:24:59] Speaker 04:
You're talking about that's what I was trying to stop you from that earlier.

[00:25:04] Speaker 04:
If you're going to make your FOIA claim, it's independent of the Stafford Act.

[00:25:08] Speaker 04:
Understood, Your Honor.

[00:25:09] Speaker 04:
And you've really argued strongly that it has to be considered independent of the Stafford Act.

[00:25:13] Speaker 00:
Understood, Your Honor, but my only point was that we know rules have to be out there because FEMA is under a congressional mandate to issue them.

[00:25:21] Speaker 02:
We don't know, in fact, your assertion is that we don't know at all what's in the non-rules provisions

[00:25:33] Speaker 02:
Whatever guidance, whatever it is, afforded to the contractors.

[00:25:39] Speaker 00:
Let me give you an example, Your Honor, from the discovery in the Leapley case, which is that FEMA wouldn't consider water in a house to be evidence that there was a problem with the roof.

[00:25:53] Speaker 00:
That was a rule that FEMA was using, a rule of general applicability that was being used to adversely affect

[00:26:00] Speaker 02:
You're sure it was a rule and not guidance, which is a problem with the devil's administrative law.

[00:26:08] Speaker 00:
If it's binding and it's affecting people's rights, then it's a rule.

[00:26:12] Speaker 00:
It's a substantive rule.

[00:26:13] Speaker 00:
And this was a rule that was being used to deny relief, to adversely affect... Why do you say, affecting people's rights?

[00:26:22] Speaker 00:
Sorry, if it's being used to adversely affect people.

[00:26:25] Speaker 04:
You don't have rights here, do you?

[00:26:27] Speaker 00:
We haven't pledged a due process claim, Your Honor.

[00:26:29] Speaker 04:
So you don't have rights.

[00:26:31] Speaker 00:
Well, we could, please.

[00:26:32] Speaker 00:
We might be able to please you.

[00:26:33] Speaker 00:
Oh, yeah.

[00:26:34] Speaker 04:
And if Diane had wheels, she'd be a trolley car.

[00:26:35] Speaker 04:
That's not this case.

[00:26:37] Speaker 00:
That's not this case.

[00:26:40] Speaker 04:
I was just objecting to your use of the word rights when it's not in your complaint.

[00:26:44] Speaker 00:
I apologize, Your Honor.

[00:26:46] Speaker 02:
You're saying that your complaint makes it clearly asserts that there are substantive

[00:26:56] Speaker 02:
legally binding rules out there that have not been published in the Federal Register.

[00:27:03] Speaker 00:
It clearly does assert that, and those are the ones that have to be.

[00:27:06] Speaker 02:
What's the best?

[00:27:07] Speaker 02:
I mean, it seems to me some of the language of the complaint was a little ambiguous.

[00:27:17] Speaker 00:
It starts at paragraph one, Your Honor, but I believe that the best sites are at JA 19 and JA

[00:27:26] Speaker 00:
20 to 23, where we talk about the unpublished rules.

[00:27:32] Speaker 02:
Okay.

[00:27:33] Speaker 02:
On J-19, my eye hits unpublished IHP policies, which sound different from substantive rules.

[00:27:54] Speaker 00:
You know, I think given the generous construction that we're entitled to on a motion to dismiss, this is where we're alleging that FEMA has unpublished rules that it's using to deny people relief.

[00:28:08] Speaker 04:
But that depends on the word rules, doesn't it?

[00:28:10] Speaker 04:
Well... I suppose it's policies.

[00:28:14] Speaker 00:
552A1 also covers policies if they are... But so does A2.

[00:28:21] Speaker 00:
Right.

[00:28:22] Speaker 00:
Substantive rules of general applicability as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by the agency.

[00:28:34] Speaker 04:
Are you reading one?

[00:28:36] Speaker 00:
I'm reading one.

[00:28:36] Speaker 04:
However you want to characterize... If they're policies, they could be in two, right?

[00:28:42] Speaker 00:
Well, no, because however you want to characterize what I'm referring to in the complaint, these rules that are being used by FEMA to decide who does and doesn't get relief, they are substantive rules.

[00:28:52] Speaker 00:
Are they a procedure?

[00:28:54] Speaker 00:
Are they of policy?

[00:28:56] Speaker 00:
Are they interpretations?

[00:28:57] Speaker 00:
It doesn't matter.

[00:28:58] Speaker 00:
They're all covered by 552A1.

[00:29:00] Speaker 00:
They may also be covered by 552A2.

[00:29:03] Speaker 02:
But if it belongs in the two slot rather than the one slot, which given the overlap is confusing at least, the special provision at the end of A1 would not seem to apply.

[00:29:20] Speaker 02:
Although it still leaves your secret law argument.

[00:29:25] Speaker 02:
to the extent of flaw.

[00:29:27] Speaker 00:
Yeah.

[00:29:27] Speaker 00:
I mean, as you said, Judge Williams, there is overlap.

[00:29:31] Speaker 00:
There may be rules that fall into both buckets.

[00:29:34] Speaker 00:
But we'd submit you can't read rules that are being used generally, generally applicable to determine who gets relief.

[00:29:45] Speaker 00:
You can't read that as anything else other than a general rule.

[00:29:48] Speaker 02:
That takes us to an amazing part of 552A2.

[00:29:54] Speaker 02:
Is it such a thing as a statement of policy that is not a statement of general policy?

[00:30:01] Speaker 02:
I mean, that's the difference between the phrase in two versus the phrase in one.

[00:30:07] Speaker 02:
What would it mean?

[00:30:08] Speaker 00:
That's a very good question, Your Honor, and it's not something the parties addressed in their brief.

[00:30:13] Speaker 02:
I would be delighted to submit supplemental briefing on that.

[00:30:16] Speaker 02:
I agree.

[00:30:16] Speaker 02:
OK.

[00:30:17] Speaker 02:
What was the assertion at J-23 that I think you were pointing to?

[00:30:21] Speaker 00:
Sure, well, and we were looking at really JV-20 to JV-23.

[00:30:25] Speaker 00:
These are where we lay out the unpublished FEMA rule that it uses to decide individual applications.

[00:30:33] Speaker 00:
And they are rules of general applicability that it's using to adversely affect people by not giving them the relief they've sought.

[00:30:42] Speaker 04:
But of course, everything depends on the word rule, right?

[00:30:46] Speaker 04:
if they're using guidance stockings that under administrative law are not necessarily rules, then your FOIA argument goes away, right?

[00:31:01] Speaker 00:
Well, no, Your Honor.

[00:31:02] Speaker 00:
Actually,

[00:31:07] Speaker 00:
under 552A1, it's substantive rules of general applicability plus generally applicable policies and interpretations.

[00:31:15] Speaker 00:
So it doesn't have to be a rule.

[00:31:17] Speaker 04:
You were going to say that.

[00:31:18] Speaker 04:
Yes, I see your point.

[00:31:20] Speaker 04:
But that's what gets to the confusion of the policies that are referred to in 2.

[00:31:29] Speaker 04:
But this would be a peculiar result that FOIA would be used

[00:31:36] Speaker 04:
If you had the, quote, criteria, you would then be able to litigate the application of those criteria.

[00:31:44] Speaker 04:
Is that correct?

[00:31:47] Speaker 00:
That's certainly what we need in order to have fair and equitable administration.

[00:31:49] Speaker 04:
That's what you want.

[00:31:51] Speaker 04:
You want to be able to litigate the criteria.

[00:31:54] Speaker 00:
Litigate is a strong word.

[00:31:55] Speaker 00:
I mean, we're talking about people dealing with female inspectors.

[00:31:58] Speaker 04:
That's why you want the criteria, so that you can see, in X situation, the criteria were applied improperly, so we can litigate that.

[00:32:08] Speaker 00:
No, Your Honor.

[00:32:09] Speaker 00:
That's not what we want.

[00:32:11] Speaker 04:
What do you want, then?

[00:32:12] Speaker 00:
We're in a situation akin to if a tree falls on someone's house.

[00:32:16] Speaker 04:
Answer my question.

[00:32:17] Speaker 04:
If you have the criteria, what do you do with it?

[00:32:19] Speaker 00:
We want to have it so that applicants can advocate for their

[00:32:23] Speaker 00:
for their relief with the FEMA inspectors they're dealing with, and so that they can appeal denials of relief based on the standards that apply, all within the FEMA mechanism.

[00:32:31] Speaker 00:
We're not talking about litigation in court.

[00:32:33] Speaker 04:
Now, one of the things that puzzles me about that section is you have to be adversely affected before you have a right for that FOIA section, right?

[00:32:43] Speaker 00:
Well, the point... Wait, wait, wait.

[00:32:45] Speaker 04:
You have to be adversely affected.

[00:32:47] Speaker 00:
That's right, but that's not the point of the statute.

[00:32:49] Speaker 00:
The point of the statute is to prevent agencies from using... Wait a minute.

[00:32:53] Speaker 04:
That's what the statute says.

[00:32:54] Speaker 04:
You have to be adversely affected before you have a right to these so-called rules, right?

[00:33:00] Speaker 00:
That's true.

[00:33:01] Speaker 04:
In your case, you haven't shown that you're adversely affected.

[00:33:04] Speaker 00:
We've pled that we're adversely affected, and we will prove it.

[00:33:07] Speaker 04:
Wait a minute.

[00:33:08] Speaker 04:
I'm not sure that's enough, because under that section, you have to be adversely affected, as it would be true in satellite broadcasting.

[00:33:17] Speaker 04:
Because in that case, the individual was not allowed to file for a license because they filed in the wrong spot.

[00:33:24] Speaker 04:
The answer was, wait a minute.

[00:33:26] Speaker 04:
There's nothing in the regulations that said where the right spot was.

[00:33:30] Speaker 04:
So that right on its face, you could see they were adversely affected.

[00:33:33] Speaker 04:
You can't show you were adversely affected.

[00:33:37] Speaker 00:
Respectfully, Your Honor, we can and we have.

[00:33:39] Speaker 00:
The way we've been adversely affected in a number of ways, by being denied relief based on non-published rules,

[00:33:46] Speaker 04:
No, that's not what that section says.

[00:33:50] Speaker 04:
You have a right to those rules if you're adversely affected.

[00:33:54] Speaker 04:
You don't have the right to the rules unless you are adversely affected.

[00:34:00] Speaker 00:
Adverse effect arises once you're denied access to the rules that have to be published.

[00:34:07] Speaker 04:
No, now you're being circulated.

[00:34:08] Speaker 04:
That's not the way the rule reads.

[00:34:09] Speaker 00:
I do think that's the way the rule reads.

[00:34:11] Speaker 00:
But even beyond that, what has to happen is we go back to the district court, we get the administrative record, and we show how we were adversely affected by not having access to the rules.

[00:34:20] Speaker 00:
Because the rules said water in your house isn't evidence of a roof problem, and I just presented evidence of water in the house thinking I was showing I had a roof problem.

[00:34:29] Speaker 00:
So there are lots of ways we could have been adversely affected, but we just don't know right now all of them.

[00:34:34] Speaker 02:
Yeah, and that's your point.

[00:34:35] Speaker 02:
Basically, to the extent that you're affected by secret law, you can't show the adverse effect.

[00:34:41] Speaker 00:
Correct, Your Honor.

[00:34:43] Speaker 02:
At the pleading stage, that has to be taken in your favor.

[00:34:49] Speaker 00:
Thank you, Your Honor.

[00:34:51] Speaker 00:
Agreed.

[00:34:52] Speaker 00:
And I just want to say a couple more things.

[00:34:55] Speaker 00:
If the court were to find that there was some identifiable standard in the regulations, that really wouldn't end the inquiry.

[00:35:02] Speaker 00:
It would still have to go through the analysis of the regulations that was done in the American trucking case.

[00:35:07] Speaker 00:
Ultimately, to reach the end in Whitman versus American trucking, what the court said was an agency ultimately can't

[00:35:15] Speaker 00:
interpret a statute in a way that nullifies its purpose.

[00:35:18] Speaker 00:
And that's really the situation we've got here.

[00:35:20] Speaker 00:
FEMA was ordered to put in place a criteria, standards, and procedures for determining eligibility, equitable procedures, and it hasn't done that, and its interpretation nullifies what Congress commanded.

[00:35:32] Speaker 00:
I see my time is up.

[00:35:34] Speaker 00:
I hope I can have some rebuttal time.

[00:35:37] Speaker 00:
Thank you.

[00:35:46] Speaker 04:
You may want to raise that.

[00:35:50] Speaker 05:
May it please the court, Mark Stern, for the government.

[00:36:06] Speaker 04:
As you can see, at least for several, it's the more troubling problem in this case.

[00:36:13] Speaker 04:
is the FOIA question, not the argument that you're obliged to issue more specific rules, but rather the secret law argument.

[00:36:28] Speaker 02:
Yeah, that's certainly... The secret law interacts with the specific mandates because it talks about a fair and equitable

[00:36:39] Speaker 02:
appeals process.

[00:36:41] Speaker 05:
Yes, Your Honor, but I'd like to sort of unpack that point.

[00:36:46] Speaker 05:
One, the regulations establish clearly what you're supposed to do on an appeal.

[00:36:52] Speaker 05:
There are 28 declarations.

[00:36:54] Speaker 05:
28 what?

[00:36:56] Speaker 05:
There are 28 declarations that are attached to the complaint in this case of all of the 28 plaintiffs.

[00:37:03] Speaker 05:
If you look through them, what this is is a straight out

[00:37:08] Speaker 05:
administrative procedure complaint saying the decision in these cases was not reasonable.

[00:37:16] Speaker 05:
In some of the cases, in almost all of the cases, appeals were taken.

[00:37:22] Speaker 05:
In some of the cases, the appeals were denied.

[00:37:26] Speaker 05:
In some of the cases, the amount awarded was increased.

[00:37:30] Speaker 05:
Plaintiffs were polled, albeit not in the detail that they would like.

[00:37:37] Speaker 02:
letter, which I thought was the most obscure communication, not the most obscure, among the most obscure communications I've ever seen in my life.

[00:37:47] Speaker 05:
Well, it's about the same as the ones I get from my insurance company.

[00:37:52] Speaker 05:
And this is really important.

[00:37:54] Speaker 05:
In Hurricane Katrina, we had a million claims.

[00:37:57] Speaker 05:
Here it's a smaller set of disasters.

[00:37:59] Speaker 05:
We have 54,000 claims.

[00:38:02] Speaker 05:
What Congress did was it established a whole

[00:38:09] Speaker 04:
And if... Let's assume, arguing though, you win on the Stafford preclusion question.

[00:38:16] Speaker 04:
You win on that.

[00:38:17] Speaker 04:
Where do you stand on the FOIA question?

[00:38:20] Speaker 05:
We win on the FOIA question.

[00:38:21] Speaker 05:
Well, you better explain why, because that's very troubling.

[00:38:24] Speaker 05:
Because all of the claim of secret law, I mean, anybody can say there's secret law.

[00:38:31] Speaker 04:
Well, in fact, are there criteria that are given to contractors or given to employees

[00:38:38] Speaker 04:
that indicate when someone is going to get relief or when they're not going to get relief.

[00:38:42] Speaker 05:
Your Honor, I invite you to look at the documents to which counsel referred that were produced.

[00:38:49] Speaker 05:
No, no, answer my question.

[00:38:50] Speaker 05:
No, of course there are guidance that are given to contractors.

[00:38:53] Speaker 05:
They say things like

[00:38:55] Speaker 05:
like how and like what you should think about whether water, like on the floor, is in and of itself, you know, a reason to think that there is damage that makes a house uninhabitable.

[00:39:12] Speaker 04:
The why, the petitioner argues that in order to appeal, it is necessary to know what those criteria are so that they could challenge either the facts

[00:39:26] Speaker 04:
in a particular case, or the reasonableness of the criteria in an appeal.

[00:39:33] Speaker 05:
Your Honor, that's exactly the kind of determination, like proceeding, that Congress meant to preclude.

[00:39:41] Speaker 04:
Those are crossing APA challenges.

[00:39:43] Speaker 04:
The problem with that is you... Council has pointed out that the FOIA statute is passed

[00:39:52] Speaker 04:
with the warning that its provisions can't be abridged unless Congress expressly does so.

[00:40:01] Speaker 05:
Your Honor, we aren't suggesting that the statute events FOIA.

[00:40:05] Speaker 05:
This is a statute about the extent of judicial review that's available under a wholly discretionary program.

[00:40:14] Speaker 04:
Wait a minute, wait a minute, stop for a second.

[00:40:15] Speaker 04:
Let's assume there's no staff for that, okay?

[00:40:18] Speaker 04:
Let's assume there's no preclusion of judicial review in this step, and that's not before us.

[00:40:24] Speaker 04:
The only thing that's before us is the FOIA case.

[00:40:27] Speaker 04:
Let's assume there's only things that are.

[00:40:30] Speaker 04:
Does petitioner win?

[00:40:31] Speaker 05:
No.

[00:40:32] Speaker 05:
Why not?

[00:40:32] Speaker 05:
Because what we have here are standard manuals which FOIA, which the provision expressly contemplates

[00:40:41] Speaker 05:
may not need to be published in the Federal Register.

[00:40:46] Speaker 05:
There's countless sub-regulatory guidance, like the POMS and the Social Security Act, which contain a lot of important information.

[00:40:55] Speaker 05:
Nobody's ever thought that those need to be published in the Federal Register.

[00:40:59] Speaker 01:
So if we're... What's the legal line between substantive rules and interpretations of general applicability

[00:41:11] Speaker 01:
which fall into A1 and therefore need to be published in the Federal Register and policy and interpretations which fall into A2 and therefore don't need to be published in the Federal Register.

[00:41:28] Speaker 01:
It's just odd because

[00:41:31] Speaker 01:
the words seem to describe highly overlapping categories and yet the fact that the first category has to be published and the second category doesn't suggests that there's zero overlap.

[00:41:45] Speaker 05:
I don't think that there is, I mean, obviously an agency can publish things in a discretionary way in the Federal Register.

[00:41:54] Speaker 05:
What I don't think

[00:41:56] Speaker 05:
What this is meant to do is to say, and I think the sending applications to Gettysburg would be a classic example.

[00:42:08] Speaker 05:
There's something that should have been published because if you can't comply with this provision,

[00:42:14] Speaker 05:
you're out.

[00:42:15] Speaker 05:
You are clearly disadvantaged.

[00:42:18] Speaker 05:
It's not that there is some secret thing.

[00:42:21] Speaker 05:
There is a real thing.

[00:42:22] Speaker 05:
It's been applied.

[00:42:23] Speaker 05:
So there's a rule, and the rule should have been published.

[00:42:28] Speaker 02:
I'm not sure what line you're drawing at all.

[00:42:31] Speaker 05:
But what you don't get to do is to come in and go, there may be something

[00:42:35] Speaker 05:
that I was affected by.

[00:42:37] Speaker 02:
Well, counsel said that in the Fifth Circuit case, there are records there of what appear to be rules or rule-like statements.

[00:42:50] Speaker 05:
I invite the court to look.

[00:42:52] Speaker 05:
It's not the Fifth Circuit case.

[00:42:53] Speaker 05:
The Fifth Circuit case just rejected flat out the contention that you needed more detailed regulations.

[00:43:00] Speaker 05:
And that was before FEMA promulgated improved regulations.

[00:43:09] Speaker 05:
happen years and years of discovery at the end of which the district court looking at all the things that council now says that they got them that this court should consider went through and one by one said no they didn't need to

[00:43:35] Speaker 02:
under FOIA A1 and 2?

[00:43:39] Speaker 05:
Yeah, this is, I think it's a 128th sub-third.

[00:43:43] Speaker 02:
No, no, what law was being applied?

[00:43:45] Speaker 05:
Well, among other things, the FOIA was being applied.

[00:43:50] Speaker 05:
And the court said that this is what the court said was a substantive rule.

[00:43:55] Speaker 05:
It said that there was a deferred maintenance policy that said if the problem was due to deferred maintenance

[00:44:07] Speaker 05:
the result of the storm.

[00:44:09] Speaker 05:
Now, this is so self-evidently follows from the regs that it's hard to see how that could be a problem.

[00:44:15] Speaker 05:
But let's look at the way that the district court derived that, because this is the kind of thing the plaintiffs are talking about.

[00:44:21] Speaker 05:
It goes through and says, look, I've got evidence that there were PowerPoint presentations to inspectors that said things like, this is what you look for.

[00:44:31] Speaker 05:
You know, this is how the district court put together the, quote, secret law they said should have been published in the Federal Register because it was a substantive rule.

[00:44:42] Speaker 05:
That is what we're talking about in this case.

[00:44:44] Speaker 05:
Let's be absolutely clear.

[00:44:46] Speaker 05:
This is not a secret law case.

[00:44:49] Speaker 05:
What the plaintiffs in this case want, and

[00:44:57] Speaker 05:
joint appendix.

[00:44:58] Speaker 05:
It is a classic plea for APA relief.

[00:45:02] Speaker 05:
It says, give all liquid bonds for each and every person.

[00:45:07] Speaker 05:
And remember, while this is 28 people,

[00:45:10] Speaker 05:
you could have a million people asking for the same things.

[00:45:14] Speaker 05:
It says, all facts and evidence gathered by FEMA, all substantive and procedural rules applied, how FEMA applied each standard to produce its decision.

[00:45:24] Speaker 04:
And then it says, I want a re-determination with how... But suppose we agreed with you entirely on the Stafford Act interpretation and the preclusion of judicial review.

[00:45:38] Speaker 04:
And instead, but we disagreed with you with respect to the FOIA.

[00:45:45] Speaker 05:
Then the Stafford Act, this is exactly what the Stafford Act is designed to preclude.

[00:45:53] Speaker 05:
Is your argument that Stafford Act implicitly amended FOIA?

[00:46:00] Speaker 05:
No.

[00:46:01] Speaker 05:
It's an argument that says what you can't get is a judicial review

[00:46:08] Speaker 05:
of the terminations here, and the foyer doesn't become that.

[00:46:12] Speaker 04:
No, no, no, no, we're not talking about that at that point.

[00:46:16] Speaker 04:
Suppose the issue is only whether or not plaintiffs are entitled to the so-called secret law, which is an unfair phrase, but just a disclosure, in order to disclosing that.

[00:46:32] Speaker 05:
in order disclosing it?

[00:46:34] Speaker 04:
Yes.

[00:46:34] Speaker 05:
Sure, that's a classic FOIA case.

[00:46:36] Speaker 05:
Yes.

[00:46:37] Speaker 05:
Of course they're allowed to seek documents.

[00:46:39] Speaker 05:
Which one might ask, why haven't they done that?

[00:46:42] Speaker 05:
But that's a different question.

[00:46:43] Speaker 05:
Why don't they have them?

[00:46:44] Speaker 02:
They are here.

[00:46:45] Speaker 05:
Oh, no.

[00:46:47] Speaker 05:
Look, to the extent that this is a FOIA request for documents, we'll get right on it.

[00:46:51] Speaker 05:
That's not the relief I was just reading to this court, which is the relief that's actually asked for in this complaint.

[00:46:58] Speaker 05:
This is a request to get re-adjudications, not a request for documents.

[00:47:05] Speaker 02:
We wouldn't be here right now.

[00:47:07] Speaker 02:
Subsection 2 in what you're pointing to seems to be

[00:47:13] Speaker 02:
generally in line with 552A1, or possibly two.

[00:47:21] Speaker 05:
I'm sorry, I'm not sure.

[00:47:22] Speaker 02:
I mean, to the extent the plaintiffs are asking... It asks for all substantive and procedural rules and policies applied by FEMA.

[00:47:31] Speaker 02:
We have... I'm just reading from the passage you brought our attention to.

[00:47:36] Speaker 05:
The agency has promulgated rules that govern the

[00:47:47] Speaker 05:
were upheld by the Fifth Circuit.

[00:47:50] Speaker 04:
We're not talking about the rules.

[00:47:52] Speaker 04:
Forget it.

[00:47:52] Speaker 04:
Forget the Stafford Act claim.

[00:47:55] Speaker 04:
You could see what happened.

[00:47:56] Speaker 04:
Council got up and instead of following her brief, she went to the very end.

[00:48:04] Speaker 04:
And it was the very end where some of us have the most difficulty, which is there's a demand for policies, whether or not they're rules, policies that would

[00:48:18] Speaker 04:
adversely affect their clients.

[00:48:21] Speaker 04:
So, just forget the Stafford Act case altogether.

[00:48:26] Speaker 04:
Isn't that legitimately before us?

[00:48:28] Speaker 05:
No, I mean the claim is legitimately before you.

[00:48:32] Speaker 05:
The relief saw it.

[00:48:35] Speaker 05:
I'm leaving aside the Stafford Act.

[00:48:38] Speaker 05:
The notion that there are what at best are like clarifications which

[00:48:48] Speaker 05:
At best, these are clarifications.

[00:48:51] Speaker 01:
I don't want to put words in your mouth, but as I understand your theory on this pure FOIA claim, your argument is that to the extent there may be

[00:49:09] Speaker 01:
documents which the government thinks are A2 guidance documents and we think they are A1 substantive rules or interpretations, the most we could order is publication of those documents in the Federal Register.

[00:49:26] Speaker 05:
The court could certainly order publication.

[00:49:29] Speaker 05:
We have no objection to publishing anything.

[00:49:33] Speaker 05:
We think that, I mean, there's tons of guidance that's published online.

[00:49:38] Speaker 05:
This is not a situation in which there's an absence of code.

[00:49:42] Speaker 05:
It's not only on the record.

[00:49:44] Speaker 02:
The Times has a claim for us, although the plaintiff's failure to mention A2 confuses me.

[00:49:52] Speaker 02:
But in any event, they appear to be arguing that there are materials which fit A2, which the agency can legitimately exclude from A1, and which are being held secretly.

[00:50:09] Speaker 05:
It legitimately fit A2 but not A1.

[00:50:12] Speaker 05:
I mean, I don't think that's plaintiff's argument.

[00:50:14] Speaker 05:
I think that the only thing that plaintiffs care about is having their determinations overturned.

[00:50:22] Speaker 05:
For that, they have to fit within A1.

[00:50:25] Speaker 05:
Fitting within A2 doesn't get you the rule that's in A1.

[00:50:31] Speaker 02:
So that they've got them.

[00:50:32] Speaker 02:
If there's some kind

[00:50:35] Speaker 02:
useful to them that has not been disclosed and is required to be disclosed by A2, forcing the disclosure of it, could advantage them.

[00:50:49] Speaker 05:
It could advantage someone in a future case, though of course this particular storm is already over.

[00:50:59] Speaker 05:
What it doesn't do

[00:51:05] Speaker 05:
able to be used against you is an A1 provision.

[00:51:09] Speaker 05:
It says things that should have been published in the Federal Register.

[00:51:12] Speaker 02:
I understand that.

[00:51:15] Speaker 02:
And let's assume arguing that there's nothing that is in dispute that is in A1 and not in A2, right?

[00:51:28] Speaker 02:
Still, the secret law problem remains.

[00:51:34] Speaker 02:
There are two levels of non-secrecy implied by 552A.

[00:51:41] Speaker 02:
One, which secrecy is corrected by publication in the Federal Register, and two, secrecy involves essentially

[00:51:51] Speaker 02:
reading room, public inspection, electronic format.

[00:51:54] Speaker 05:
This isn't the secrecy provision.

[00:51:57] Speaker 05:
This is about when you're supposed to publish things.

[00:52:01] Speaker 05:
It's not some provision that supplants normal APA review.

[00:52:07] Speaker 05:
If you go in, supposing these decisions were subject to APA review, what you would do is to come in and say, I have an unreasonable decision.

[00:52:17] Speaker 05:
The apparent basis for this decision does not work.

[00:52:21] Speaker 05:
I would either get a better explanation and a remand to the agency or a court would go, no, no, no, no, wait a minute, wait a minute.

[00:52:29] Speaker 04:
Even assuming you get publication of the guidance documents, whatever they are, that doesn't mean that there's a judicial review of an agency's application of that.

[00:52:44] Speaker 04:
Because that would be precluded by the preclusion of judicial review.

[00:52:49] Speaker 05:
No.

[00:52:49] Speaker 05:
What I was saying, Your Honor, is that in a typical case, and if you look at what is wanted here, these are all the makings of your typical APA case.

[00:53:01] Speaker 05:
The FOIA has never been used

[00:53:04] Speaker 05:
But it is being used here.

[00:53:07] Speaker 05:
No, I'm saying impressive.

[00:53:10] Speaker 05:
In the handful of cases in which 552A has been used, it's said, okay, we have like

[00:53:20] Speaker 05:
there's something that's out there.

[00:53:22] Speaker 05:
It should have been published in the Federal Register as opposed to somewhere else.

[00:53:27] Speaker 05:
It was applied against you.

[00:53:29] Speaker 05:
It's very specific.

[00:53:31] Speaker 05:
It's Morton v. Ruiz, which bears no resemblance whatsoever to this case.

[00:53:37] Speaker 05:
And that is, this is a very limited provision.

[00:53:42] Speaker 05:
If that provision can be used to come in

[00:53:45] Speaker 05:
based on a allegation that there is secret law.

[00:53:50] Speaker 04:
Wait, wait, wait, wait.

[00:53:51] Speaker 04:
Counsel, I'm sure we're desperately trying to split off the FOIA claim from the Stafford claim.

[00:54:00] Speaker 05:
And I'm trying to do the same, Your Honor.

[00:54:02] Speaker 04:
Well, no, you're mixing it up.

[00:54:05] Speaker 04:
I don't understand why.

[00:54:06] Speaker 04:
But if we just had the FOIA claim before us by itself, and we do have the FOIA claim, there's no question about it, isn't there?

[00:54:15] Speaker 04:
And if we agreed with counsel on that and said, look, you're adversely affected, certainly you being the plaintiff, certainly adversely affected with respect to filing your appeal to know what the guidance documents are, policies, whatever, rules.

[00:54:38] Speaker 04:
So therefore, they should be disclosed.

[00:54:42] Speaker 04:
There's a separate question as to whether they could use those documents once they're disclosed as trying to reopen or to be used as claims.

[00:54:54] Speaker 04:
And they could on administratively, but there is no showing that they would have any right to judicial review on that.

[00:55:02] Speaker 05:
I think if one were to accept a whole series of things,

[00:55:10] Speaker 05:
Maybe they would have, I don't want to answer that on the fly, but what they want is to reopen.

[00:55:20] Speaker 04:
Sure, they may want to reopen and that would be up to the agency, up to FEMA, whether they would allow it.

[00:55:27] Speaker 04:
But they still can't get around the preclusion of judicial review.

[00:55:32] Speaker 05:
No, but essentially what, and I understand that Your Honor, is the

[00:55:41] Speaker 05:
here is that 552A is being used as a means of getting exactly the kind of review that you would not have otherwise because the idea, what they want is you get this stuff out there and then

[00:55:58] Speaker 05:
The whole point of this is to say, I get a re-adjudication.

[00:56:02] Speaker 05:
Yes, but as a result of judicial review.

[00:56:09] Speaker 01:
You couldn't... But suppose we agree with you that the discretionary function provision precludes judicial review, right?

[00:56:21] Speaker 01:
And so they can never come into court

[00:56:24] Speaker 01:
on any remand, they can never go back to court on the Stafford Act claim and say, look, here's the secret law that is inconsistent with the agency decision, so we want a remand on the merits determination.

[00:56:44] Speaker 01:
So is it now shift back to the FOIA piece of the case and the statute requires an adverse impact

[00:56:54] Speaker 01:
Is it enough for them to say the adverse impact is if I get this additional guidance document, whatever it is, I can go back to the agency even though I can't come in?

[00:57:15] Speaker 05:
a couple of cases that have ever applied this.

[00:57:18] Speaker 05:
The point is, say, in Morton v. Ruiz, you had a sort of determination that should have been published in the Federal Register because the Supreme Court said it was a substantive rule subject to notice and comment about which Indians were going to be eligible for benefits.

[00:57:38] Speaker 05:
You could have a rule that says, no,

[00:57:44] Speaker 05:
if you needed to mail your application to Gettysburg and nobody told you that.

[00:57:49] Speaker 04:
Are you now claiming that adverse effects, excuse me I'm sorry, he presides you know, he may be a lot younger but he presides.

[00:58:00] Speaker 04:
Are you are you objecting to the adverse effect?

[00:58:03] Speaker 04:
Yes we are.

[00:58:04] Speaker 05:
Will you explain why?

[00:58:05] Speaker 05:
Because we think that

[00:58:07] Speaker 05:
any meaning.

[00:58:08] Speaker 05:
I mean, if somebody can come in and go, there's secret law.

[00:58:14] Speaker 05:
If I knew about it, it might have helped me in taking an administrative appeal.

[00:58:19] Speaker 05:
It's not the same thing as saying I had that there was a substantive rule that should have applied.

[00:58:26] Speaker 05:
It determined and bound my rights.

[00:58:29] Speaker 04:
And therefore, you know... There's a guidance document that says there's water in the bathroom, but not in the bedroom.

[00:58:37] Speaker 04:
or not in the living room, we won't give any relief.

[00:58:41] Speaker 04:
And if I had known that beforehand, I would have pointed out that I did have water in the bedroom.

[00:58:49] Speaker 04:
So therefore, I'm adversely affected.

[00:58:52] Speaker 04:
That's a classic APA claim.

[00:58:56] Speaker 04:
It's got nothing to do with judicial review.

[00:58:59] Speaker 04:
If I had known that was the standard,

[00:59:03] Speaker 04:
I would have filed an appeal on that grounds and maybe I would have gotten relief.

[00:59:08] Speaker 05:
Your Honor, everybody filed an appeal.

[00:59:12] Speaker 05:
There was nobody, nobody is, I mean, we have 28 declarations.

[00:59:16] Speaker 05:
No one is alleging anything like this.

[00:59:20] Speaker 05:
I mean, and we've been through this in the FEMA remand.

[00:59:24] Speaker 05:
It's unbelievably costly and time consuming and nothing comes of it.

[00:59:29] Speaker 05:
This really is a very, very serious matter.

[00:59:34] Speaker 04:
Are you saying that there's no indication in the documents filed by the plaintiff that any individual has been adversely affected by not knowing

[00:59:44] Speaker 04:
what the law is and their answer back is it's impossible for us to make that determination until we see the document.

[00:59:52] Speaker 05:
I think that's really the term 552A on its head to go there may be documents that adversely affected me and therefore I want them published.

[01:00:03] Speaker 04:
Well normally she relies on due process cases but normally one concludes if you do not know the standard

[01:00:11] Speaker 04:
by which you are judged, you can't have right in a very effective appeal.

[01:00:18] Speaker 05:
Your Honor, these aren't rocket science appeals.

[01:00:22] Speaker 05:
They basically boil down to questions of habitability and what caused the damage.

[01:00:30] Speaker 04:
And there's lots of fights that... But do you object to the publication of all of your guidance documents?

[01:00:37] Speaker 04:
No, we publish almost all of the guidance documents.

[01:00:39] Speaker 04:
Is the answer you don't object?

[01:00:40] Speaker 04:
You do not object, so there's nothing to the... So assuming we agree with you on the Stafford Act, then you agree with Plaintiff on her secondary argument.

[01:00:51] Speaker 04:
So there's no dispute between the parties.

[01:00:53] Speaker 05:
It's one thing for me to stand here and say we don't object to publishing those.

[01:00:57] Speaker 05:
It's quite another thing to say that if we don't object to publishing it, Plaintiffs get to reopen all of the administrative... We didn't say that!

[01:01:05] Speaker 02:
That's a different matter.

[01:01:07] Speaker 02:
That's what they want.

[01:01:10] Speaker 05:
They may want that ultimately, but they ain't going to get it.

[01:01:15] Speaker 05:
But if the court does not order the reopening of the administrative determinations, that, as far as we're concerned, sort of is what this case is about, and we're happy as long as the court does not order the reopening of the administrative determinations.

[01:01:38] Speaker 05:
really, really serious is for this court to accept the proposition that it should order, that it should grant the relief that's actually requested by plaintiffs on page 32 and 33.

[01:01:50] Speaker 05:
That's really serious.

[01:01:52] Speaker 05:
To the extent that the court would still order publication, we'll publish anything.

[01:01:58] Speaker 05:
We don't have anything.

[01:01:59] Speaker 05:
We're not worried about anything.

[01:02:01] Speaker 05:
And the kind of documents that are at issue in those cases,

[01:02:06] Speaker 05:
If you look to see what emerged after years of litigation, none of which are cited in climate spree, nobody explains what it is in all of these documents that in which way they were adversely affected.

[01:02:20] Speaker 05:
And it's not enough to come in and go, I'll bet I was adversely affected.

[01:02:25] Speaker 05:
I mean, that's all that's happening here.

[01:02:28] Speaker 02:
I mean, if we had... That depends upon the increment between

[01:02:33] Speaker 02:
what has been disclosed and what would be disclosed under the concession that you appear to make.

[01:02:39] Speaker 05:
No, Your Honor, just to be clear, I'm not making any concessions.

[01:02:44] Speaker 05:
All I said is that we don't have any problems about publishing things.

[01:02:51] Speaker 05:
We've published things

[01:02:53] Speaker 05:
we've published reams of material which we cite in our briefs.

[01:02:58] Speaker 05:
If plaintiffs had identified anything that they said that wasn't published that adversely affected them, we would have responded to that, but we can't remove that.

[01:03:07] Speaker 02:
If something isn't published, they have difficulty identifying.

[01:03:10] Speaker 05:
Your Honor, anybody can come in and go, there's something there.

[01:03:14] Speaker 05:
But after years of discovery in the other suit, they don't come to you with anything.

[01:03:20] Speaker 05:
Look at that FEMA remand.

[01:03:23] Speaker 05:
That's all that we've got here.

[01:03:26] Speaker 05:
This is only a means of re-engaging in extensive discovery.

[01:03:34] Speaker 01:
Are there any cases, pure FOIA cases, where a plaintiff comes in and says, in a FOIA complaint, gee, I think there must be some secret law.

[01:03:50] Speaker 01:
I can't tell you what it is, but I'm suspicious.

[01:03:55] Speaker 01:
And then the courts, and I want discovery.

[01:03:58] Speaker 01:
Are there any cases addressing, I mean, it seems like that's almost a Twombly Iqbal sort of problem.

[01:04:05] Speaker 01:
Like, what is the trigger to get discovery on an allegation of secret law to fit within A1 rather than A2?

[01:04:16] Speaker 05:
I mean, I'm not aware of any pure FOIA cases that do that.

[01:04:20] Speaker 05:
We know what happened in the FEMA remand and the nightmare of discovery that that was.

[01:04:29] Speaker 05:
The reason that it would be a difficult FOIA point to make is that to come in, you would go, I mean, what you would presumably do is to request all contractor manuals.

[01:04:41] Speaker 05:
Fine, you provide the contractor manuals unless there's some exception that's applicable.

[01:04:47] Speaker 05:
We're not arguing about any of that.

[01:04:49] Speaker 04:
I'm not sure contract manuals would fall within their complaint.

[01:04:53] Speaker 05:
Oh, that's exactly what they want.

[01:04:56] Speaker 05:
That's exactly what they want.

[01:04:58] Speaker 05:
That is, contractor training was what the remand in FEMA was about.

[01:05:04] Speaker 05:
This isn't about, that's all that is at issue here.

[01:05:09] Speaker 05:
And again, I invite the court to look.

[01:05:11] Speaker 05:
at the remand to see what's actually at issue.

[01:05:15] Speaker 05:
These are guidance to contractors who have to perform a million investigations and they need some guidance about how to proceed.

[01:05:27] Speaker 05:
They don't bind the agency to anything.

[01:05:30] Speaker 05:
They just say, go out and look, file your report, you tell us, somebody can then appeal.

[01:05:41] Speaker 05:
Appeal based on what?

[01:05:42] Speaker 05:
Appeal based on your deniance for insufficient damage.

[01:05:46] Speaker 05:
And you come in and you like sort of, and it's usually a lot of these claims have to do with the fact that damage is not like sort of replacement damage.

[01:05:56] Speaker 05:
It's damage like needed to make your house habitable.

[01:06:00] Speaker 05:
And so, you know, like people... Well, okay.

[01:06:04] Speaker 04:
Now, like you said earlier, you had no objection to the disclosure of these

[01:06:10] Speaker 04:
so-called policies or rules.

[01:06:17] Speaker 05:
It would be nice to have a FOIA request so we know exactly what's being requested, but if we can get that, we don't have a problem unless there's some exemption that I'm not aware of.

[01:06:28] Speaker 05:
Nobody is trying to do anything secret.

[01:06:32] Speaker 05:
This is the way that an agency that has to deal with one emergency after another dealing with like hundreds of thousands or millions of claims and has to issue guidance to contractors on short notice frequently.

[01:06:49] Speaker 05:
you know, can't compile extensive administrative records.

[01:06:53] Speaker 05:
I mean, what Congress wanted was at the agency to do its job, which is getting out relief in a hurry, not sitting around conducting extensive review provisions.

[01:07:05] Speaker 05:
I mean, that's just the nature of this statute.

[01:07:08] Speaker 05:
And there is no due process, right?

[01:07:10] Speaker 05:
The Fifth Circuit said that in Bridgeley.

[01:07:13] Speaker 05:
Plaintiffs just are, you know, like the Fifth Circuit, like the

[01:07:17] Speaker 05:
St.

[01:07:17] Speaker 05:
Tammany's parish, the 11th circuit in Roses, squarely held.

[01:07:22] Speaker 05:
The fact that you should have gone through notice and comment, that doesn't mean that you can say that, but that doesn't alter the fact that what you're challenging is a determination about what

[01:07:35] Speaker 05:
your eligibility and you cannot bring those notice and comment claims.

[01:07:40] Speaker 05:
So what plaintiffs have come to this circuit having, in the case of Lupe, lost in the Fifth Circuit for Texas storms and they're asking this court to go and say, that's all right, you know, we'll order everything to be reopened.

[01:07:56] Speaker 05:
So, you know, it's an extraordinary end-run around, like, the sort of the past that they've already dealt with, like, in the Fifth Circuit and in Texas in particular, where almost everything on the FEMA remand was rejected.

[01:08:14] Speaker 05:
So that's what's going on in this case.

[01:08:17] Speaker 05:
This court word would be the point of the result really has potentially extraordinary consequences.

[01:08:26] Speaker 05:
Thank you.

[01:08:37] Speaker 00:
Thank you, Your Honors.

[01:08:40] Speaker 00:
I think what we just heard is an extraordinary reinvention of the Lupe litigation in the Fifth Circuit.

[01:08:46] Speaker 00:
That was a very limited litigation that addressed one provision we raised here, 5174, and had nothing to do with FOIA.

[01:08:53] Speaker 00:
On remand, the district court in Lupe found there was no discretionary function exception that barred the consideration of the FOIA claims, did consider the FOIA claims.

[01:09:02] Speaker 04:
Counsel, suppose hypothetically we disagree with your interpretation of the FEMA statute.

[01:09:11] Speaker 04:
in light of the preclusion of judicial review.

[01:09:16] Speaker 04:
We think we're bound, we can't look at the, we disagree with all the arguments you had in your brief before you got to FOIA, which is perhaps one of the reasons you started with FOIA.

[01:09:32] Speaker 04:
But in any event, it's probably agree with you on FOIA if there are documents

[01:09:38] Speaker 04:
that are not disclosed, that could bear on appeals, that let's assume we think they should be published.

[01:09:49] Speaker 04:
Then what?

[01:09:50] Speaker 00:
Well, it sounds like FEMA has no objection to publishing, but in addition, we are seeking reconsideration of my client's claims.

[01:09:57] Speaker 01:
And that's where this feels like an end run.

[01:10:01] Speaker 01:
And it's not an end run around Lupe for reasons I'll address, but... But it feels like you are undercutting the bite of the discretionary function provision, which under Judge Silberman's hypothetical, we're assuming we agree with the government's position on that.

[01:10:21] Speaker 00:
So to start, the authority where courts have ordered reconsideration for violations of 552A1 appears on page 34 of our brief.

[01:10:31] Speaker 00:
Borak versus Biddle, Davidson versus FEMA.

[01:10:34] Speaker 00:
And again, the Lupe case on remand are all instances where a court ordered reconsideration based on a violation.

[01:10:40] Speaker 04:
Reconsideration of what?

[01:10:41] Speaker 00:
Reconsideration of the claim that had been made to the agency using rules that were not unpublished.

[01:10:46] Speaker 04:
That is not the direct relief of a FOIA case.

[01:10:50] Speaker 04:
For your case, the direct relief is just publication.

[01:10:56] Speaker 00:
I was addressing the question of whether courts do order this relief.

[01:10:59] Speaker 00:
We think it is appropriate.

[01:11:01] Speaker 04:
Not without the conclusion of judicial review.

[01:11:03] Speaker 01:
Yeah, do any of those cases have something like the discretionary function preclusion?

[01:11:08] Speaker 00:
Davidson versus FEMA was another Safford Act case, Your Honor, and their reconsideration was ordered.

[01:11:14] Speaker 00:
It was remanded to agency for reconsideration.

[01:11:15] Speaker 01:
Did they consider the discretionary function issue or just assume that the claim was reviewable?

[01:11:20] Speaker 00:
They did not... Which court is this?

[01:11:24] Speaker 00:
Fifth.

[01:11:24] Speaker 00:
Fifth Circuit.

[01:11:26] Speaker 00:
They didn't consider the discretionary function exception in that case.

[01:11:30] Speaker 00:
But, Your Honor, those are all cases where reconsideration was ordered and we submit that it's appropriate to order it there, order it here as well.

[01:11:41] Speaker 00:
FEMA's argument seems to be that there are plenty of things that don't have to be published under A1, so this court can't review whether it in fact violated A1 here.

[01:11:50] Speaker 00:
You know, that really gets A1 backwards.

[01:11:52] Speaker 00:
This court gives no discretion to agencies to interpret the APA, and it does review whether they've made the right decision in how they've implemented the requirements of the APA, including FOIA, you know, whether they had good cause to deviate from notice and comment, whether a rule is substantive or procedural.

[01:12:09] Speaker 00:
That's all plain vanilla DC circuit review of agency action.

[01:12:12] Speaker 00:
That's just what we're asking for here.

[01:12:14] Speaker 01:
That gets you at most publication.

[01:12:17] Speaker 00:
And we do want publication, but we also want reconsideration.

[01:12:21] Speaker 00:
I understand.

[01:12:21] Speaker 02:
Can you explain what inference we should draw from your not discussing edit two at all?

[01:12:29] Speaker 00:
Your Honor, FEMA's argument seemed to be that the discretionary decision between whether to issue a rule subject to 552A1 or 552A2 gave rise to the discretionary function exception barring the FOIA claims.

[01:12:45] Speaker 02:
No, no, no, not gave rise to.

[01:12:47] Speaker 02:
That's buried in 552A, the problem about what belongs in one and what belongs in two, and who decides.

[01:12:56] Speaker 00:
Well, perhaps we misinterpreted FEMA's argument, but we understood them to be saying that some discretion was injected into this process because FEMA could decide either to issue rules under A1 or to issue rules under A2.

[01:13:11] Speaker 00:
And our response there was, it's been ordered by the statute to issue rules under A1.

[01:13:15] Speaker 00:
A1 is extremely broad.

[01:13:17] Speaker 00:
There's no doubt that there are rules out there that are subject to A1 and we pled that they're out there.

[01:13:21] Speaker 00:
So FEMA just has to publish them.

[01:13:25] Speaker 04:
Assuming they're rules.

[01:13:27] Speaker 00:
Pardon?

[01:13:27] Speaker 04:
Assuming they're rules.

[01:13:29] Speaker 00:
Or interpretations or general statements of policy or interpretations.

[01:13:35] Speaker 02:
Right.

[01:13:37] Speaker 02:
So the difficulty of your briefing is that we're not given your position at all on the line between those two.

[01:13:44] Speaker 00:
Well, but your honor, this court doesn't have to decide whether the secret rules are A1 or A2.

[01:13:50] Speaker 00:
The only question the district court decided was that it didn't have jurisdiction to review the FOIA claim.

[01:13:58] Speaker 00:
So it's a matter for remand how the district court would decide whether the rules we're talking about fall under A1.

[01:14:05] Speaker 01:
So let's assume that you lose on

[01:14:11] Speaker 01:
Stafford Act claims on discretionary function grounds.

[01:14:16] Speaker 01:
You win the FOIA claim with regard to the discretionary function ruling.

[01:14:22] Speaker 01:
So what happens, and I know your position is that's all we should, the second thing is all we should say in remand.

[01:14:28] Speaker 01:
So what happens?

[01:14:29] Speaker 01:
You have a FOIA complaint which makes an allegation that

[01:14:38] Speaker 01:
the agency has documents that properly fall within A-1 that it is treating under A-2, and it doesn't specify which ones.

[01:14:54] Speaker 01:
I mean, how is that evaluated?

[01:14:59] Speaker 01:
Does that entitle you to discovery?

[01:15:03] Speaker 00:
The district of DC has a rule that requires FEMA to produce the administrative record immediately in this kind of litigation.

[01:15:11] Speaker 01:
Administrative record of what?

[01:15:13] Speaker 00:
Of how my client's claims were decided.

[01:15:15] Speaker 01:
But that just gets me back to the Stafford Act.

[01:15:19] Speaker 01:
I'm trying to imagine a pure FOIA case.

[01:15:24] Speaker 00:
But the administrative record would include the secret rules that were used to adversely affect them.

[01:15:28] Speaker 00:
So FEMA has to produce those right off the bat, and that's how we make the determination.

[01:15:33] Speaker 04:
That actually was what led to the costliness and time-consuming nature of the... You see, the problem that we're bothered by is, and what Tracey already said, your opponents are bothered by, is your effort to use the information you receive to reopen cases.

[01:15:53] Speaker 04:
And where we are reluctant,

[01:15:56] Speaker 04:
generally have the view that that's not legitimate.

[01:15:59] Speaker 04:
That the preclusion of judicial review suggests we can't even interfere with the past cases.

[01:16:08] Speaker 04:
So your relief falls in deaf ears insofar as you wish to use the FOIA obtained information in cases under the staff for that.

[01:16:22] Speaker 04:
Do you see the problem?

[01:16:24] Speaker 00:
But the court wouldn't be

[01:16:25] Speaker 00:
Two responses, Your Honor.

[01:16:26] Speaker 00:
First of all, the Court wouldn't be running afoul of the discretionary function exception simply by ordering FEMA to do a reconsideration consideration.

[01:16:33] Speaker 04:
No, no.

[01:16:33] Speaker 04:
All we're thinking of ordering is disclosure.

[01:16:36] Speaker 00:
Certainly wouldn't run afoul of the Stafford Act there.

[01:16:39] Speaker 00:
But even ordering reconsideration, you wouldn't run afoul of the Stafford Act because you're just saying, make the decision again.

[01:16:46] Speaker 00:
Your discretionary decision, make it again.

[01:16:48] Speaker 04:
I'm very troubled by that.

[01:16:51] Speaker 00:
That's exactly what the Fifth Circuit ordered in Davidson versus FEMA.

[01:16:55] Speaker 00:
And what FEMA has raised is, look, we have 54,000 people we dealt with in this disaster.

[01:17:04] Speaker 00:
That's a big remedy.

[01:17:06] Speaker 00:
It's a big remedy because it's an important problem.

[01:17:09] Speaker 00:
And it's a big error to have not followed the statutorily mandated procedures.

[01:17:16] Speaker 00:
So if it is a big remedy, that's what FEMA brought on itself.

[01:17:20] Speaker 00:
It had notice of this.

[01:17:20] Speaker 00:
FEMA's been in constant litigation over its failure to disclose its procedures for years.

[01:17:25] Speaker 00:
And Judge Williams isn't the only one who says that FEMA's notices are among the most obscure he's ever seen.

[01:17:31] Speaker 00:
That's what... Yeah, he's getting pretty old.

[01:17:35] Speaker 00:
I'm glad that counsel for FEMA brought up the fact that it's similar to the notice he gets from his insurance company.

[01:17:45] Speaker 04:
I thought that was not the most felicitous way to respond to that.

[01:17:49] Speaker 00:
I think that's a fantastic example for us, Your Honor.

[01:17:52] Speaker 00:
When you call your insurance company, you have your insurance contract in front of you, and you are able to say, here's what I'm entitled to, here's why you're wrong, here's why you're looking at the wrong thing.

[01:18:01] Speaker 00:
This is what I'm going to press on when I have to go to your supervisor.

[01:18:04] Speaker 00:
That's what my clients wanted.

[01:18:06] Speaker 00:
That's what they were entitled to.

[01:18:07] Speaker 00:
If the court has no further questions.

[01:18:11] Speaker 01:
Thank you.

[01:18:12] Speaker 00:
Thank you.