[00:00:02] Speaker 05:
Case number 16-5373, Matthew Sless, Appellate versus United States Department of Justice International Prisoner Transfer Unit.

[00:00:11] Speaker 05:
Ms.

[00:00:11] Speaker 05:
Mio for the amicus curi, Ms.

[00:00:13] Speaker 05:
Lyons for the accolade.

[00:00:41] Speaker 06:
Good morning.

[00:00:42] Speaker 03:
Good morning, Your Honor.

[00:00:43] Speaker 03:
Erica Hashimoto, court appointed amicus.

[00:00:47] Speaker 03:
With the court's permission, Dominique Rio will be, student counsel will be arguing the case for amicus.

[00:00:53] Speaker 06:
Thank you.

[00:00:58] Speaker 06:
Welcome.

[00:01:00] Speaker 06:
Thank you.

[00:01:23] Speaker 07:
May it please the court.

[00:01:25] Speaker 07:
This case is simply about holding the government to its commitment.

[00:01:29] Speaker 07:
In Article 3, Section 6 of the US-Canada Treaty, the United States agreed to consider the best interests of prisoners when making transfer decisions.

[00:01:39] Speaker 07:
This commitment is important because it is not an intuitive one.

[00:01:43] Speaker 07:
Usually, the government wouldn't have to consider the prisoner's best interests when transferring prisoners within the United States or with other countries.

[00:01:51] Speaker 07:
But Article 3, Section 6 of the U.S.-Canada Treaty expressly requires the United States to consider the prisoner's best interests.

[00:02:00] Speaker 07:
The mandatory language in Section 6 provides a manageable standard for judicial review.

[00:02:06] Speaker 07:
Courts can look to ensure whether the government did in fact consider best interests when making the transfer decision.

[00:02:14] Speaker 07:
Without any judicial review, the IPTU's compliance with the treaty would rest in its hands alone, which the Supreme Court warned against in the unanimous decision in mock mining.

[00:02:27] Speaker 07:
Indeed, Section 6 is the only provision in the treaty that serves to accomplish a primary purpose of the U.S.-Canada Treaty, which is the social rehabilitation of the prisoner.

[00:02:37] Speaker 01:
Therefore, this... So do you think we need to address at the outset whether this provision of the treaty is self-executing?

[00:02:44] Speaker 07:
Yes, Your Honor, we argue that the provision is self-executing, and this court can address that question if it wants to.

[00:02:54] Speaker 07:
It wasn't raised in the district court below, and because it's not a jurisdictional question, the court doesn't have to address the question of self-execution.

[00:03:02] Speaker 00:
And why don't you think it's jurisdictional?

[00:03:05] Speaker 00:
Why don't you think it's jurisdictional?

[00:03:07] Speaker 07:
Because in yogi, the court

[00:03:10] Speaker 07:
differentiated the question, said that in Yogi, the complaint claimed a violation of a treaty, and it said that even if there was no valid cause of action under that complaint, there was still a jurisdiction for the court to hear the case under 28 U.S.C.

[00:03:32] Speaker 07:
1331, and said that yes, there's jurisdiction for cases,

[00:03:38] Speaker 07:
arising under the Constitution laws or treaties of the United States.

[00:03:42] Speaker 07:
So it is a separate question from whether or not there's jurisdiction.

[00:03:48] Speaker 02:
It's not a jurisdiction.

[00:03:49] Speaker 02:
To determine whether it's arising under the treaty

[00:03:53] Speaker 02:
Isn't that tied up in the question of whether the treaty is self executing?

[00:04:01] Speaker 02:
Because we have to in order to conclude that it arises under the treaty, we have to.

[00:04:07] Speaker 02:
Assume or conclude that the treaty is self executing so that it can arise under it.

[00:04:16] Speaker 07:
Yes, Your Honor, and so because it wasn't raised before the district court, this court can assume without deciding.

[00:04:22] Speaker 07:
that the treaty provision is self-executing or it could reach the issue of self-execution on appeal and the provision, we argue, is self-executing.

[00:04:33] Speaker 07:
Marine says that the first thing this Court should look to is the text of the provision and this provision has mandatory language.

[00:04:42] Speaker 07:
It says that the

[00:04:43] Speaker 07:
government shall consider the best interests, which is very different from the provision in Medellin.

[00:04:50] Speaker 07:
Also, the provision in Medellin that was considered non-self-executing had an alternative enforcement mechanism.

[00:04:57] Speaker 07:
The Article 94 of the UN Charter expressly tells the parties that if there's a problem, they should go to the ICJ, and there's no alternative

[00:05:06] Speaker 07:
enforcement mechanism in Section 6 or in the treaty as a whole.

[00:05:12] Speaker 07:
And also the fact that the language of Section 6 is protecting individual rights.

[00:05:19] Speaker 07:
It's talking about, it's making sure that the parties are considering the best interests of the prisoner is another indication that this is a self-executing provision.

[00:05:29] Speaker 01:
So can I go back for just one second to the question of not whether it's self-executing, but whether we have to determine whether it's self-executing?

[00:05:36] Speaker 01:
And on that, Yogi says what it says.

[00:05:38] Speaker 01:
It's not from our court.

[00:05:40] Speaker 01:
So we're not necessarily bound by it.

[00:05:43] Speaker 01:
And if we're addressing the question in the first instance, I think there's cases that come out the other way and say that whether a treaty is self-executing is a jurisdictional question.

[00:05:52] Speaker 01:
So what's the argument for why it's not given that the consequence of saying the what's at stake in determining whether

[00:06:02] Speaker 01:
a treaty provision of self-executing is whether Congress intended to have any operative law at all, which kind of makes it seem like that's a fairly threshold, consequential question about whether there's any law to be applied here.

[00:06:20] Speaker 07:
It is your honor and so this court certainly can reach the question of self-execution.

[00:06:25] Speaker 07:
We just use Yogi to say that there is room for this court to assume without deciding that the provision is self-executing and remand to the district court reversing on the fact that there is a manageable standard for judicial review assuming without deciding that the provision is self-executing and allow the district court to hear the question of self-execution for the first time on remand since

[00:06:49] Speaker 07:
This hasn't been brought up in four years of litigation.

[00:06:52] Speaker 07:
But if this court wants to reach the question of self-execution.

[00:06:55] Speaker 01:
So I guess what I'm asking is maybe even more antecedent to that, which is whether I have to reach it.

[00:07:00] Speaker 01:
Because let's just assume, I'm not saying this is right, but let's just assume my view is that I'd rather not discuss whether it's self-executing, but if I have to, of course I have to.

[00:07:10] Speaker 01:
And it sounds like your position is that I don't have to.

[00:07:15] Speaker 07:
That's correct, Your Honor.

[00:07:17] Speaker 01:
I'm just wondering why that is the case, given that the consequence of determining whether something's self-executing or not is whether there's operative law, whether Congress has even enacted a statute

[00:07:28] Speaker 01:
in the first place in that, because that's effectively what's going on when you determine whether the treaty is self-executing.

[00:07:34] Speaker 01:
And I'm wondering how that might arguably be non-jurisdictional.

[00:07:38] Speaker 07:
Because even if there's no valid cause of action, which is what the question of self-execution goes to, whether or not there is operative law,

[00:07:52] Speaker 07:
there's still jurisdiction for this court to review that question, even if the answer is no, under 28 U.S.C.

[00:08:01] Speaker 07:
1331.

[00:08:02] Speaker 07:
And so this court can still, has jurisdiction to hear that question, even if ultimately they decide that the treaty is wrong.

[00:08:12] Speaker 01:
So I think that's right.

[00:08:13] Speaker 01:
So I think it's definitely true that courts always have jurisdiction to determine whether they have jurisdiction.

[00:08:18] Speaker 01:
But that still doesn't tell me whether the question that we're asking about is in fact jurisdictional, because even in a situation in which there's something that's conceivably jurisdictional, like the diversity statute of federal question jurisdiction, we definitely have jurisdiction to decide whether we have that jurisdiction.

[00:08:33] Speaker 01:
But then the question here is whether the thing that we're trying to decide is itself a jurisdictional requirement that we're required to address.

[00:08:40] Speaker 07:
And so the only case that we found that speaks directly to this question is Yogi.

[00:08:45] Speaker 07:
There's also the Bell Supreme Court case and John Doe case in this circuit, but they're not talking about treaties.

[00:08:52] Speaker 07:
But they stand for the proposition that even if there's no valid cause of action,

[00:08:59] Speaker 07:
that's separate from a jurisdictional question.

[00:09:02] Speaker 01:
So you're saying that the question of self-execution is tantamount, is sufficiently similar to the question of whether there's a valid cause of action that they both, and we know that a valid cause of action question is non-jurisdictional, and so we should conclude that the self-execution question is also non-jurisdictional.

[00:09:18] Speaker 07:
That's correct, Your Honor.

[00:09:19] Speaker 07:
Self-execution is slightly separate from the cause of action question in that here the cause of action comes from the APA, but the APA relies on other law, and so here the treaty is the other law.

[00:09:36] Speaker 07:
But Mr. Sless does have a valid cause of action under the APA.

[00:09:44] Speaker 07:
It's important that the court reverse the district court's decision that there was no manageable standard, however, because the mandatory language in the treaty provision

[00:09:56] Speaker 07:
does provide a manageable standard and mock mining makes that clear.

[00:10:00] Speaker 07:
This court can look to see whether or not the government did in fact consider Mr. Sless's best interests and in the record below the government never argued that it had, it only argued that this decision was fully committed to agency discretion.

[00:10:16] Speaker 07:
But the mandatory language binds the United States

[00:10:19] Speaker 07:
to documenting that it made a good faith, individualized, and comprehensive consideration of whether transfer would be in the prisoner's best interest.

[00:10:28] Speaker 01:
That's reading some more words into it than the treaty itself says.

[00:10:31] Speaker 01:
So what it says is you have to bear in mind.

[00:10:34] Speaker 01:
And why is it not borne in mind when the agency said, at least in response to reconsideration, it has the sentences on page 87-88

[00:10:46] Speaker 01:
record when it takes into account the hardships and reaches the conclusion that these hardships are inapplicable to an inmate who was resided in the United States for a lengthy period of time with the intention to remain in this country and whose immediate family members are living here.

[00:11:00] Speaker 01:
So isn't that, at least bearing in mind, best interest in the rehabilitation sense in which that language is used in this context?

[00:11:10] Speaker 07:
Yes, your honor, but the government never argued that that's what it was doing in that instance.

[00:11:17] Speaker 07:
And in the case below, the district court held that there was no judicial review whatsoever.

[00:11:22] Speaker 07:
So if this court agrees that there's no judicial review, the government wouldn't have to make any such consideration.

[00:11:28] Speaker 07:
They could just automatically deny

[00:11:31] Speaker 07:
all transfer applications from Canadian prisoners, and this court would have no ability to look and confirm whether or not best interests were considered.

[00:11:40] Speaker 07:
So it's important that, at the very least, the fact that this question is judicially reviewable be decided.

[00:11:51] Speaker 06:
You agree.

[00:11:51] Speaker 06:
Canada could complain to the United States, could it not?

[00:11:55] Speaker 07:
That's correct, Your Honor.

[00:11:57] Speaker 07:
But the language of the treaty confers individual rights on Mr. Sluss and the Canadian prisoners held here, because it's, again, mandatory language that's protecting individuals.

[00:12:14] Speaker 07:
And Asakura says that when it recognizes that this court

[00:12:21] Speaker 07:
is lenient in recognizing individual rights in treaty provisions.

[00:12:26] Speaker 07:
This is true in the extradition context where prisoners are able to sue under extradition treaties, even though those treaties don't expressly say that they have individual rights or even provide a cause of action.

[00:12:39] Speaker 07:
And then similarly in courts are more favorable in finding individual rights in bilateral treaties as the one here.

[00:12:48] Speaker 07:
because the parties are able to better negotiate specific terms as to what they want done.

[00:12:55] Speaker 07:
And here, this provision, Section 6, is the only provision that serves to accomplish the underlying purpose of the treaty, which is the social rehabilitation of the prisoner.

[00:13:08] Speaker 07:
If Mr. Sluss's best interests weren't considered as part of his transfer decision-making process, then his rights under the treaty were not recognized.

[00:13:21] Speaker 02:
But just going back to the language, the language says that the decision-making authority shall bear in mind all factors bearing upon the probability

[00:13:35] Speaker 02:
that transfer will be in the best interest of the offender.

[00:13:39] Speaker 02:
Now you're saying that that means that the decision, the ultimate decision has to be in the best interest of the offender, but I can tell

[00:13:52] Speaker 02:
my children that you should bear in mind that eating all of your vegetables with your dinner here is in your best interest and is healthy for you.

[00:14:07] Speaker 02:
And my toddler could say, but I don't like peas, and eat everything but the peas that are on his plate.

[00:14:17] Speaker 02:
Um, hasn't he, you know, perhaps borne in mind what I've told him, but nonetheless, he's complied with my directive?

[00:14:30] Speaker 07:
That's correct, Your Honor.

[00:14:31] Speaker 07:
And so, the standard that we ask for doesn't ask that the ultimate decision be

[00:14:38] Speaker 07:
directed by a determination of whether or not transfer was in the prisoner's best interests.

[00:14:45] Speaker 07:
And the government has the discretion to even find that the decision was, the transfer would be in the prisoner's best interests and then articulate a reason as to why other reasons overcome the prisoner's best interests.

[00:14:59] Speaker 07:
But at the very least, the treaty requires the government

[00:15:06] Speaker 07:
to consider the best interests.

[00:15:08] Speaker 07:
And this has meaning and weight because it's not an intuitive consideration.

[00:15:14] Speaker 07:
And normally when the government is deciding whether or not to transfer prisoners, they're thinking about their own interests as a state.

[00:15:23] Speaker 01:
But why wasn't that done here?

[00:15:24] Speaker 01:
What's your argument as to why, if there's a requirement, a judicial enforcement requirement, to consider slash bear in mind best interests?

[00:15:32] Speaker 01:
What's the argument as to why that wasn't done here given what the determination on reconsideration said at 87-88?

[00:15:38] Speaker 07:
So we can't fully know whether or not it was done here because the full administrative record was never before the district court and the government never argued that it had considered best interests.

[00:15:49] Speaker 01:
Why does it have to say I considered best interests when the determination itself says here's some interests that we considered?

[00:15:56] Speaker 07:
Because at the time that the government was making its transfer decision, I see my time is expired.

[00:16:02] Speaker 07:
Can I answer the question?

[00:16:04] Speaker 07:
At the time the government was making its transfer decision, it had to be believing that it was complying with the treaty.

[00:16:13] Speaker 07:
And so it had to consider best interests using the factors that it determines go to best interests.

[00:16:20] Speaker 07:
But it still had to make that consideration.

[00:16:23] Speaker 07:
And that's not clear from the record below.

[00:16:25] Speaker 07:
And so that's also a piece of why the full administrative record needed to be before the district court, before it could make a decision that best interests had indeed been considered.

[00:16:39] Speaker 06:
All right.

[00:16:39] Speaker 06:
Why don't we hear from Happily, and we'll give you a couple of minutes on rebuttal.

[00:16:42] Speaker 06:
Thank you.

[00:17:03] Speaker 04:
Good morning.

[00:17:04] Speaker 04:
May it please the court.

[00:17:05] Speaker 04:
I am Jane Lyons.

[00:17:07] Speaker 04:
I'm an assistant United States attorney, and I'm here today in place of my colleague Johnny Walker, who I think you were expecting.

[00:17:13] Speaker 04:
Mr. Walker's wife happily went into labor early, early this morning, and so I am here today to present an argument on behalf of the Department of Justice.

[00:17:21] Speaker 04:
Mr. Sluss, a dual citizen of Canada and the United States, lacks a judicially enforceable right under the 1977 treaty between Canada and the United States for the execution of penal sentences.

[00:17:33] Speaker 04:
There are several reasons for this.

[00:17:35] Speaker 04:
First, and I think I'll address them in the analytically, perhaps, ideal way, the treaty is not self-executing either in whole or in part.

[00:17:47] Speaker 04:
The treaty also does not provide for a privately enforced right, and it doesn't contemplate, it doesn't contain any clear enough law necessary to override the presumption that treaties do not create

[00:18:00] Speaker 04:
privately enforceable rights for their perhaps beneficiaries in this context, a prisoner who requests transfer to another country.

[00:18:08] Speaker 06:
I was going to ask Mr. Wright, it may be unfair to ask you, this whole notion about individual provisions of a treaty being self-executing as opposed to the entire treaty, that is an argument that's made as to Article 3, Section 6.

[00:18:30] Speaker 06:
Do you have any thoughts about that?

[00:18:32] Speaker 06:
I've read all the cases that were cited, and basically all that says anything is the restatement third.

[00:18:41] Speaker 04:
Right, which I didn't find particularly helpful either.

[00:18:44] Speaker 04:
But here's what I would say about that.

[00:18:46] Speaker 04:
In general, treaties are agreements between countries.

[00:18:52] Speaker 04:
The strong presumption is that in the absence of language that makes it very clear that they are to be immediately imported and to become effective, enforceable domestic law, in the absence of that, they are presumed to be not self-executing.

[00:19:07] Speaker 04:
We have, beyond that, we have many indications here, in this case, that

[00:19:11] Speaker 04:
The parties did not intend that to happen.

[00:19:13] Speaker 06:
So it's sort of a clear language.

[00:19:15] Speaker 04:
It would need to be some very clear language, and there's no language identified here by Amicus to support that kind of argument.

[00:19:21] Speaker 01:
But on the question that Judge Rogers started with, which is whether we do it on a provision basis or as an all or nothing proposition with respect to an agreement as a whole, why is the restatement confusing?

[00:19:33] Speaker 01:
Because the comment says some provisions of an international agreement may be self-executing and others non-self-executing.

[00:19:39] Speaker 04:
I think it's possible.

[00:19:41] Speaker 04:
I think it's possible.

[00:19:42] Speaker 04:
I don't think it clarifies sufficiently from my way of thinking, at least, when that is.

[00:19:49] Speaker 04:
But what I do know for sure is that in this case, there's nothing in the text of the treaty and there's nothing in the behavior of the parties who negotiated it or the legislative Senate folks who commented on it said it was not self-executing.

[00:20:05] Speaker 04:
We have all of those indications without any indication that there are exceptions for small, for parts.

[00:20:10] Speaker 04:
So there's nothing in this case that favors a section by section.

[00:20:14] Speaker 01:
It could be that all the statements that were pointed out in your brief are statements that have to do with the parts that are non-self-executing because there are parts in the treaty that specifically contemplate the need for legislation.

[00:20:26] Speaker 01:
There are provisions that do that.

[00:20:28] Speaker 04:
I would say that the parts of the treaty that say they need legislation

[00:20:35] Speaker 04:
I mean, Article 3, paragraph 9 specifically says the signing states must establish by legislation or regulation the procedures, right?

[00:20:44] Speaker 04:
So that contemplates that something must happen before the treaty becomes effective.

[00:20:50] Speaker 01:
As to that requirement, definitely.

[00:20:52] Speaker 01:
I think it would be very hard to say that that's self-executing because it specifically contemplates the need for legislation.

[00:20:59] Speaker 01:
There's not that kind of statement with respect to the provision here.

[00:21:03] Speaker 04:
It's, yes, but for that provision to have any effect or implementation at all, the first thing has to happen.

[00:21:10] Speaker 04:
So I think maybe it's a, it would be a lot to presume here based on this language that doesn't differentiate anywhere that that provision could have become automatically part of domestic, binding domestic law.

[00:21:24] Speaker 04:
And even if you could get there, even if you could, the next step is to go to whether the provision

[00:21:32] Speaker 04:
creates a judicially enforceable private right.

[00:21:34] Speaker 04:
And we think the law is very clear there that it does not.

[00:21:37] Speaker 01:
Can I just ask you, what's the government's position on the threshold question of self-executing since you raised it?

[00:21:42] Speaker 01:
As I understand it, that argument wasn't made in the district court.

[00:21:46] Speaker 04:
It was made, it was not perhaps drawn out the same way we emphasized it in our appellate brief, Your Honor.

[00:21:54] Speaker 04:
We cited Medellin and argued that the treaty isn't privately enforceable and this court in its Committee of Concerned Citizens living in Nicaragua versus Reagan case in 1988 recognized that this question is tied up part of the larger question of whether the clause is self-executing.

[00:22:11] Speaker 04:
So these are really

[00:22:13] Speaker 04:
two parts of the same issue is what I would say.

[00:22:15] Speaker 04:
So I don't think this is a new issue raised for the first time on appeal.

[00:22:18] Speaker 01:
Well, as you yourself set out the argument in logical sequence at the outset, you drew a distinction between these two because you said self-executing and then privately enforceable, right?

[00:22:27] Speaker 01:
Yes.

[00:22:27] Speaker 04:
There's a reason for that.

[00:22:29] Speaker 01:
Yeah.

[00:22:30] Speaker 01:
And I'm just seizing on that and saying that suppose that we don't think that the self-executing part of that was flagged below.

[00:22:38] Speaker 01:
then in order for us to resolve the question, in order for us to be compelled to decide whether self-execution exists with respect to this provision, we'd have to conclude that self-executing is jurisdictional.

[00:22:51] Speaker 04:
That would be correct.

[00:22:52] Speaker 01:
And is it the government's view that the question of self-execution is a jurisdictional one?

[00:22:56] Speaker 04:
It has been our view that it is not a jurisdictional question.

[00:23:00] Speaker 01:
It's not.

[00:23:01] Speaker 04:
OK.

[00:23:01] Speaker 01:
So in your view, you're making the self-execution argument, but we don't have to address it if we think it wasn't filed in the district court.

[00:23:10] Speaker 04:
Yes.

[00:23:10] Speaker 04:
Of course, as counsel correctly recognized, you have the discretion to do so, and we think you should do so.

[00:23:16] Speaker 04:
It's an important issue.

[00:23:17] Speaker 04:
OK.

[00:23:18] Speaker 06:
So what about Shreena Vassan's earlier questions to Amicus?

[00:23:22] Speaker 06:
in terms of the reliance on 1331 only gets you so far.

[00:23:30] Speaker 04:
If I were going to lose this case with you concluding that you lacked jurisdiction, I acknowledge Judge Srinivasan has a very logical point about that.

[00:23:44] Speaker 04:
That's not the way we have presented the issue.

[00:23:51] Speaker 04:
The perhaps the important point for focus here is that holding the government to its commitment as Amicus Council started out by talking about

[00:24:01] Speaker 04:
is the function in the realm of international treaties of international relations.

[00:24:06] Speaker 04:
It's not the function of private US citizens in civilian courts to handle.

[00:24:14] Speaker 04:
There's a presumption that even those benefiting from treaties don't have, generally, private rights that can be vindicated in the fashion that Mr. Sluss is trying to do here.

[00:24:25] Speaker 04:
And that presumption is not overcome in this case.

[00:24:28] Speaker 04:
The treaty doesn't confer a right on him.

[00:24:30] Speaker 04:
That's one thing that was specifically acknowledged.

[00:24:35] Speaker 06:
As to Article 3, Section 6.

[00:24:41] Speaker 04:
Yes, as to Article 3, Section 6, which does not, I looked for what's the opposite of this.

[00:24:49] Speaker 04:
So this is not a case we cited in our brief, but I was trying to understand this.

[00:24:52] Speaker 06:
The opposite might be Section 7.

[00:24:56] Speaker 04:
Section 7.

[00:24:57] Speaker 06:
But let me not address that.

[00:25:03] Speaker 04:
Let me just not address that, please.

[00:25:06] Speaker 04:
I was going to suggest a look at McKesson Corporation versus Iran, which is a case involving a treaty of amity between the United States and Iran.

[00:25:18] Speaker 04:
That helped me understand better.

[00:25:21] Speaker 04:
By the way, the site for that case is 539 F 3rd, and the part I'm pointing to is at page 489.

[00:25:27] Speaker 04:
And this treaty, while it was, I believe, self-executing, the court found there was no private right, because it doesn't say there was a private right to be enforced in a court.

[00:25:36] Speaker 04:
There's much more language that would have to be in this treaty for you to conclude that there was a judicially enforceable private right here for Mr. Sluss.

[00:25:49] Speaker 04:
So it's clear that the presumption's not overcome by the text of the statute, it's not overcome by the intent of the executive branch and the Senate in considering and negotiating and then ratifying and implementing the treaty.

[00:26:01] Speaker 04:
And I think one other thing that occurred to me, and this is just something that occurred to me in preparing for the argument,

[00:26:08] Speaker 04:
Here, the treaty was negotiated, and then the legislation was passed.

[00:26:12] Speaker 04:
And the legislation was passed without any requirement that the designated official, here the attorney general, bear in mind all factors bearing upon the probability that transfer will be in the best interest of the offender.

[00:26:24] Speaker 04:
And just as a general matter, ordinarily treaty obligations can be overridden by subsequent legislation that is inconsistent.

[00:26:35] Speaker 04:
So that's one more

[00:26:37] Speaker 04:
That's pretty well established in that committee of citizens living in Nicaragua case in 1988.

[00:26:42] Speaker 06:
So even Canada could not complain.

[00:26:46] Speaker 04:
Canada can always complain, Your Honor.

[00:26:47] Speaker 06:
Well, it can always complain, but without any basis in the treaty to rely on.

[00:26:53] Speaker 04:
Well, I think they would have a basis in the treaty to rely on.

[00:26:56] Speaker 06:
But the response would be, well, we've passed the Transfer Act.

[00:27:01] Speaker 04:
Right.

[00:27:01] Speaker 04:
And that would be subject to the diplomatic functions of the government to decide whether and how to react to that.

[00:27:08] Speaker 04:
It's not a right Mr. Sluss can make up.

[00:27:09] Speaker 06:
Because I gather the way the Transfer Act has been used,

[00:27:15] Speaker 06:
is sort of the, I don't want to say this is a technical legal term, but the implementing legislation for numerous treaties.

[00:27:24] Speaker 04:
Yes, after the Mexico and Canada treaties were implemented through this particular piece of legislation, the transfer of offenders to and from foreign

[00:27:34] Speaker 04:
Countries Act, catchy title.

[00:27:37] Speaker 06:
In other words... There are many other countries like the United Kingdom and others have... No, but there are many other treaties where the Transfer Act has provisions that could sort of provide the administrative process.

[00:27:50] Speaker 04:
Right.

[00:27:50] Speaker 06:
And those countries might be in a better position to say... And this doesn't say, or Congress didn't say, we're enacting this for the purpose of implementing

[00:28:01] Speaker 06:
the US-Canadian bilateral treaty.

[00:28:05] Speaker 06:
So it's sort of interesting.

[00:28:06] Speaker 06:
We won't get to it in this case, but it's sort of an interesting notion about what these treaties really mean.

[00:28:11] Speaker 04:
It is interesting.

[00:28:12] Speaker 04:
And the other thing that struck me in reviewing it is how fast it went from treaty negotiation to legislation passed to legislation signed.

[00:28:20] Speaker 04:
The 70s were wonderful.

[00:28:21] Speaker 06:
It's been in negotiations for many years.

[00:28:23] Speaker 04:
It's been in negotiations for a while, but once it got going, it happened fast.

[00:28:26] Speaker 01:
I'm not understanding why the Transfer Act is inconsistent with

[00:28:30] Speaker 04:
Because it does not contain the standard from the statute.

[00:28:33] Speaker 04:
It doesn't import it.

[00:28:35] Speaker 04:
So it doesn't require the attorney general to consider anything about anybody's best interests at all.

[00:28:41] Speaker 04:
And that's why this court held in Bagley that it is unreviewable, committed to agency discretion, the transfer decision.

[00:28:48] Speaker 01:
Right, but if a particular treaty says that there's something that has... Let's just suppose that the treaty makes unbelievably clear that this is something that has to be considered.

[00:28:59] Speaker 01:
and that this is something that has to be considered in a way that can be vindicated in the court, then it's not clear to me why that would be inconsistent with the Transfer Act, because what the Transfer Act says is that the AG has authority to transfer offenders, but it doesn't say that it has the authority to transfer offenders, regardless of anything contrary

[00:29:20] Speaker 01:
has carte blanche authority to transfer, regardless of anything contrary in a treaty.

[00:29:24] Speaker 01:
It could be that you have that authority to transfer unless a treaty channels that authority in a particular way by requiring you to do certain things.

[00:29:33] Speaker 01:
And then the exercise of that authority is subject to whatever a treaty specifies.

[00:29:37] Speaker 04:
If the statute can take all of those words, that would be interesting, but what we have here is a statute that is silent with regard to.

[00:29:43] Speaker 06:
No, but I mean, the point is the attorney general can transfer, but will Canada accept?

[00:29:48] Speaker 04:
Yeah.

[00:29:48] Speaker 06:
So Canada says, well, we'll accept provided, you know, you bear it born in mind.

[00:29:54] Speaker 06:
Right.

[00:29:55] Speaker 06:
and have you, so.

[00:29:57] Speaker 02:
Right.

[00:29:58] Speaker 02:
But doesn't Bagley, I mean Bagley only gets you so far because Bagley we said that neither the act nor the treaty sets out particularized standards or criteria.

[00:30:12] Speaker 02:
And we know what the act says and the treaty, all that it said was that the

[00:30:25] Speaker 02:
I guess the sending authority has to agree to the transfer.

[00:30:30] Speaker 02:
So there was no language about, shall take, bear in mind, et cetera.

[00:30:37] Speaker 02:
So I don't think that, I mean, Bagley wasn't based on some notion that the statute overrode what was in the treaty.

[00:30:51] Speaker 02:
The statute just didn't say anything more than what was in the treaty.

[00:30:55] Speaker 02:
And the statute, you know, then was theoretically implementing not just this, not just that treaty, which was the European Convention on the Transfer of Sentence Persons, but, you know, the amicus theory and pellets theory is that it was

[00:31:19] Speaker 02:
perhaps also implementing this other treaty.

[00:31:23] Speaker 02:
So I don't see how Bagley gets you over the finish line here.

[00:31:31] Speaker 04:
Well, OK.

[00:31:31] Speaker 04:
Assuming we got all the way through to the APA standard and the court was looking to the treaty standard as the one for meaningful review, our argument is

[00:31:45] Speaker 04:
Well, our argument, of course, is that you shouldn't get there in the first place.

[00:31:49] Speaker 04:
Baggily, I noticed in reading it, it was decided on a motion for summary reversal, interestingly.

[00:31:55] Speaker 04:
So I doubt the arguments were terribly well-developed in the way that they have been here.

[00:31:59] Speaker 04:
I point that out.

[00:32:02] Speaker 06:
You haven't seen some of these motions.

[00:32:05] Speaker 04:
I know they have a word limit that's pretty severe, Your Honor.

[00:32:08] Speaker 04:
I've spent time cutting mine.

[00:32:16] Speaker 04:
To address your question, Judge Wilkins, I mean, we know that the courts look to the nature of the decision, the language, and the structure of whatever it's looking to.

[00:32:28] Speaker 04:
So if you're going to look to the statute, I mean the treaty, I'm sorry, the treaty, I still think the

[00:32:36] Speaker 04:
Bagley correctly recognizes that the treaty is a broad grant of discretionary authority.

[00:32:41] Speaker 04:
And perhaps to go back to your hypothetical with your toddler, if you look at your toddler at the end of the meal and say, I see you didn't eat your peas, son.

[00:32:49] Speaker 04:
And he says, well, I bore your advice in mind, dad.

[00:32:51] Speaker 04:
I don't think you feel any better.

[00:32:54] Speaker 04:
But the nature of the decision is a discretionary one.

[00:33:01] Speaker 01:
The idea that this is... That gets us to the last step of the inquiry.

[00:33:06] Speaker 01:
So let's assume that the government doesn't prevail until we've gotten to the point where we're talking about the application of the standard.

[00:33:14] Speaker 01:
Let's assume that the standard actually is judicially enforceable, at least that it sets forth a judicially manageable standard in some respects.

[00:33:22] Speaker 01:
So what's wrong with the following?

[00:33:24] Speaker 01:
Under mock mining, you're going to have an argument about why that's different.

[00:33:29] Speaker 01:
But mock mining has a somewhat analogous standard that says shall endeavor for the EEOC.

[00:33:36] Speaker 01:
And what the Supreme Court did is to say we have a normal presumption that says we try to find judicial enforceability when we can.

[00:33:42] Speaker 01:
And we're going to construe this language shall endeavor to be judicially enforceable.

[00:33:46] Speaker 01:
And we're just going to construe it in such a way that the agency has a lot of discretion.

[00:33:51] Speaker 01:
So it's not going to be burdensome for the agency to satisfy it, but it's also not the case that it's not judicially enforceable at all.

[00:33:59] Speaker 01:
We're going to have a pretty constrained inquiry into whether the EEOC complied with the requirement that it endeavor to do what the statute contemplates.

[00:34:08] Speaker 01:
So here, by parallel reasoning, we could say this statute requires that best interests be borne in mind.

[00:34:17] Speaker 01:
That's a pretty narrow requirement.

[00:34:19] Speaker 01:
It's just that best interests have to be borne in mind.

[00:34:21] Speaker 01:
It's not to say that it wasn't done here.

[00:34:23] Speaker 01:
Maybe there's a really good argument that it was done here, given what's at J87 and 88.

[00:34:27] Speaker 01:
But at least it's judicially enforceable insofar as it requires that best interests just be borne in mind.

[00:34:34] Speaker 01:
All that we have to conclude is that the government, in fact, took account of best interests.

[00:34:39] Speaker 01:
It could disagree with what

[00:34:41] Speaker 01:
the applicant says is the best interest, it could certainly disagree with what the applicant says about how those best interests should weigh at the end of the day, but it's just a checkoff requirement that just says you at least have to consider best interest and you can't entirely exclude them from the analysis.

[00:35:00] Speaker 04:
So to just distinguish on a couple levels, one is to import

[00:35:05] Speaker 04:
To import something from the treaty as opposed to a statute is an order of magnitude of difference that I think matters here, but we talked about that.

[00:35:13] Speaker 04:
Mining is a different situation because it required the EEOC to endeavor to basically try to work things out with the employer before it initiated an enforcement action.

[00:35:24] Speaker 04:
I can remember the words, like conciliate and confer and whatever.

[00:35:28] Speaker 04:
There are three words, three verbs.

[00:35:29] Speaker 04:
And so action could be more easily measured and identified

[00:35:36] Speaker 04:
observed, whereas a requirement that something be borne in mind, I mean, that's not a manageable standard because it's very hard to look behind the decision maker, into the decision maker's head in any case.

[00:35:55] Speaker 04:
And certainly here, I would agree that at the end of the day, what's at JA 87 and 88 reflects that considerations of the best interests, perhaps not as Mr. Sluss would have argued, would have liked, were done here.

[00:36:08] Speaker 01:
So there has to be, I agree with you, you can't step into somebody's mind, but that would be equally true even if you were just enforcing this diplomatically.

[00:36:16] Speaker 01:
You could – Canada and the U.S., if someone – if diplomats from each country said, did you bear that in mind?

[00:36:21] Speaker 01:
Well, you know, you'll never know because I – you can't read my mind.

[00:36:24] Speaker 01:
But if it's just what it requires is just some manifestation of the fact that it was born in mind, that's a very minimal requirement.

[00:36:31] Speaker 01:
And that manifestation, you would argue, I think, with some force was definitely met here because if you look at the decisional document, the rehabilitation interests were definitely born in mind.

[00:36:43] Speaker 04:
Right, exactly the things that the treaty was designed to address, which is, you know, the rehabilitative purposes.

[00:36:50] Speaker 04:
He understands the language, he's not separated from his family, so all the things that this – within this – you know, what the spirit of the treaty encompasses were certainly considered here.

[00:37:00] Speaker 04:
But I think the more important point in your question there is that that is a matter for Canada and the United States to resolve diplomatically, not for

[00:37:09] Speaker 04:
the court to recognize through a private, judicially enforceable private right to the beneficiary of a treaty.

[00:37:16] Speaker 04:
That's all.

[00:37:18] Speaker 06:
All right, thank you.

[00:37:21] Speaker 04:
If it's not already clear, please affirm.

[00:37:23] Speaker 04:
Thank you.

[00:37:33] Speaker 06:
All right, amicus.

[00:37:41] Speaker 07:
A few points on rebuttal, your honors.

[00:37:49] Speaker 07:
This court should review, in finding a manageable standard, this court should ask the district court to have the full administrative record before it.

[00:37:57] Speaker 07:
That is how courts under the APA review final decisions made by agencies.

[00:38:03] Speaker 07:
The court doesn't have to get into the heads of the decision makers.

[00:38:06] Speaker 07:
The APA requires there be a record

[00:38:09] Speaker 07:
of how the agency made its decision and it's clear in this case that the full administrative record was not before the district court at the time the decision was made.

[00:38:19] Speaker 07:
Mr. Sluss has made a motion for supplemental evidence on appeal and has provided

[00:38:28] Speaker 07:
and has provided further documents from the administrative record that he has received in separate FOIA litigation against the IPTU.

[00:38:38] Speaker 07:
So that demonstrates that there was information that goes to how the agency made this decision that was never before the district court.

[00:38:50] Speaker 07:
The implementing legislation

[00:38:53] Speaker 07:
referred to goes to the authority of the executive to make the transfer decision.

[00:38:58] Speaker 07:
And the government is correct in that the implementing legislation was passed before the treaty was ratified because otherwise the government would have no authority to receive prisoners from Canada or Mexico and hold them under other country's sentences.

[00:39:17] Speaker 07:
But once that authority was given to the executive,

[00:39:21] Speaker 07:
section six constraints the authority of the executive in their decision-making process and because and and

[00:39:30] Speaker 07:
and that did not need implementing legislation, the parties bound themselves to that agreement at the time they ratified the treaty.

[00:39:38] Speaker 07:
Further, there's no presumption against self-execution, and in fact, Mehreen expressed that it rejected a requirement for clear language indicating self-execution.

[00:39:51] Speaker 07:
So if there are no further questions, for these reasons, we ask this court to reverse and remand with the full administrative record.

[00:39:58] Speaker 06:
Thank you.

[00:39:58] Speaker 06:
Thank you.

[00:39:59] Speaker 06:
And the court wants to express its appreciation to you for the assistance you provided.

[00:40:05] Speaker 06:
Thank you.