[00:00:01] Speaker 01:
Case number 17, that's 1054.

[00:00:04] Speaker 01:
National Business Aviation Association, Inc.

[00:00:07] Speaker 01:
at L Petitioners.

[00:00:08] Speaker 01:
This is Michael P. Orta, Administrator at L. Mr. Simon for the Petitioners.

[00:00:13] Speaker 01:
Mr. Walters for the Respondents.

[00:00:14] Speaker 01:
Ms.

[00:00:15] Speaker 01:
Nader for the Intervenors.

[00:00:20] Speaker 05:
May it please the Court, Richard Simon for Petitioner.

[00:00:23] Speaker 05:
I have requested three minutes for rebuttal.

[00:00:28] Speaker 05:
We are here this morning asking the Court to overturn a settlement.

[00:00:34] Speaker 05:
And we understand that that's a big ask.

[00:00:38] Speaker 05:
We recognize that courts always want to maintain settlements where possible.

[00:00:44] Speaker 05:
In this instance, a settlement which may have been designed to balance the interests of a municipality and the federal government runs afoul of five statutes, or five sections of statutes, which were designed specifically by Congress to achieve that very end, which is to balance the interests of municipalities that own and operate airports

[00:01:13] Speaker 05:
and the interests of the federal government.

[00:01:16] Speaker 03:
Mr. Simon, it might be helpful to us if you began with the two procedural objections that the agency has raised.

[00:01:23] Speaker 03:
Number one, that your client likes standing, and number two, that this is not a final order.

[00:01:29] Speaker 06:
Can I add a third?

[00:01:31] Speaker 06:
Why isn't this in the Ninth Circuit?

[00:01:34] Speaker 05:
It needn't be because this is a

[00:01:38] Speaker 05:
appeal to circuits which we are allowed 4611.

[00:01:42] Speaker 06:
Why should we choose the sinness to the Ninth Circuit?

[00:01:44] Speaker 05:
Because we have gone this far in this court.

[00:01:47] Speaker 05:
We're at oral argument.

[00:01:49] Speaker 05:
There is no benefit to be gained from being in the Ninth Circuit.

[00:01:53] Speaker 05:
It has no better insight into this case.

[00:01:56] Speaker 05:
The fact that it addressed a portion of the issues below

[00:02:02] Speaker 05:
really has no bearing on the authority of the FAA to do what it did.

[00:02:07] Speaker 07:
No, but your formulation of your position as challenging an agreement is a bit cagey because there's not only an agreement, there's a judgment, and it's a judgment of the California District Court, which we can't review.

[00:02:27] Speaker 07:
The Ninth Circuit Court.

[00:02:28] Speaker 05:
Correct.

[00:02:28] Speaker 05:
Well, the Ninth Circuit cannot review it under 46110.

[00:02:32] Speaker 05:
The Ninth Circuit could review it.

[00:02:34] Speaker 07:
The Ninth Circuit can review the consent judgment, including any legal challenges to it.

[00:02:40] Speaker 05:
Well, the Ninth Circuit can review... I'm not so sure that's true, Judge Kansas.

[00:02:45] Speaker 05:
The Ninth Circuit has the ability, if we have a 46110 challenge, to address the issues that are raised by that.

[00:02:53] Speaker 05:
I would suggest that the judges order the consent decree itself

[00:02:58] Speaker 05:
is not one of those issues except to the extent that it constitutes a final order.

[00:03:05] Speaker 05:
So you've got to get there first.

[00:03:06] Speaker 05:
But challenging the entry of a consent decree is an entirely different process and would have required us to intervene in that action.

[00:03:17] Speaker 03:
Another way to get at the same issue is the agency's argument that this is not a final reviewable order because it doesn't fix any rights or obligations

[00:03:28] Speaker 03:
given the language in the settlement that it doesn't become effective until it's approved by the California Court in a consent decree.

[00:03:37] Speaker 03:
So that's another way of getting at the same question.

[00:03:41] Speaker 03:
So why isn't this?

[00:03:44] Speaker 03:
I mean, it does say this does not become effective until it's approved by the California Court.

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

[00:03:52] Speaker 05:
Well, first of all, that was a decision, and part of the decision

[00:03:58] Speaker 05:
Let the FAA

[00:03:59] Speaker 05:
made in the first instance in entering into the settlement agreement and including a condition.

[00:04:06] Speaker 03:
But that decision the FAA made to enter into the settlement agreement didn't fix any obligations or rights.

[00:04:13] Speaker 05:
Oh, it certainly did, Your Honor, with respect.

[00:04:16] Speaker 05:
It absolutely did, but it made them conditional on the signing or approval of a consent order.

[00:04:23] Speaker 05:
But that did not make it any less a final order in this court

[00:04:28] Speaker 05:
domestic securities is the case that comes to mind where the final order that this court found was conditioned on entry in not a judicial proceeding but another action by a separate entity.

[00:04:44] Speaker 03:
The only thing left to be done in that case was action by the agency itself.

[00:04:48] Speaker 03:
Here you have, it's dependent on actions by a different branch of government.

[00:04:53] Speaker 05:
No.

[00:04:54] Speaker 05:
The difference is correct that one is a different branch government, one was a different entity altogether that had to act on the condition.

[00:05:07] Speaker 05:
But this court was very clear that the reason that subsequent condition didn't.

[00:05:12] Speaker 03:
But the order in the case you're talking about had been completely approved.

[00:05:15] Speaker 03:
The only question was whether, the only thing left was implementation.

[00:05:20] Speaker 03:
It's all dependent on the California court.

[00:05:26] Speaker 05:
Well, it's all dependent on that.

[00:05:28] Speaker 05:
Yes, it's a condition.

[00:05:30] Speaker 05:
And the judge entered an order, which I, you know, Your Honor, if you take a look at that order, it's a one sentence, one sentence order.

[00:05:43] Speaker 05:
that set quotes from another case, an older case, and says, will you prove it?

[00:05:48] Speaker 05:
There was no substance to that order.

[00:05:51] Speaker 05:
There was no role for the court to play unless subsequently invoked.

[00:05:56] Speaker 07:
The finality is supposed to have a practical element to it.

[00:06:02] Speaker 07:
So if the situation is the parties go to the court and have an agreement and propose that it be entered as a judgment, and the court enters it as a judgment, what's left of the agreement divorced from the judgment?

[00:06:23] Speaker 05:
The agreement is approved by the judgment, but the agreement contains all of the terms

[00:06:30] Speaker 05:
It really, your honor knows what it does.

[00:06:33] Speaker 05:
I mean, it releases this and does that.

[00:06:36] Speaker 05:
Those are all infinite.

[00:06:37] Speaker 07:
I understand, but the judgment does all of those things as well.

[00:06:41] Speaker 07:
The judgment.

[00:06:42] Speaker 07:
Why isn't the right way of thinking about it, the agreement is either merged into or superseded by the final judgment?

[00:06:52] Speaker 05:
or the agreement stands with a condition that has occurred.

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And the agreement, which has all of the terms, remains the instrument.

[00:07:04] Speaker 07:
Right.

[00:07:04] Speaker 07:
Those are the possibilities.

[00:07:06] Speaker 07:
Why is yours more plausible?

[00:07:08] Speaker 07:
to the extent that, look, if the parties ever have any dispute about this, they're going to be going to the court and asking for enforcement of the judgment.

[00:07:19] Speaker 07:
They're not going to be bringing some free-floating independent contract action on the agreement.

[00:07:25] Speaker 05:
That's correct.

[00:07:27] Speaker 05:
But the issue here, when you look to... The issue here is the authority of the FAA to have entered into

[00:07:38] Speaker 05:
that final order and whether that final order is just the settlement agreement as we believe it is with a contingent element or is some combination of the two, the government doesn't really tell us what it is.

[00:07:54] Speaker 05:
It certainly can't be the judge's order, the consent decree standing alone because there's nothing there.

[00:08:02] Speaker 05:
So if it's some combination of the two, it's still a final

[00:08:09] Speaker 03:
You mean there's nothing there?

[00:08:11] Speaker 05:
What does that mean?

[00:08:12] Speaker 05:
There is nothing of substance in the consent decree.

[00:08:16] Speaker 03:
Well, didn't the consent decree approve the settlement and make the settlement enforceable?

[00:08:21] Speaker 05:
It did.

[00:08:21] Speaker 05:
Yes, it did.

[00:08:22] Speaker 03:
So why would you say there's nothing of substance?

[00:08:25] Speaker 05:
Well, if – what I'm saying is that if the settlement – if the consent decree itself

[00:08:31] Speaker 05:
is the only thing that is a final order, there's nothing there standing alone.

[00:08:36] Speaker 05:
It has to capture the settlement agreement.

[00:08:38] Speaker 03:
Well, you're right.

[00:08:39] Speaker 03:
You're totally right about that, but that still raises the question of whether any rights or obligations flowed from the signing of the settlement agreement.

[00:08:50] Speaker 05:
I think that does become a semantic rather than a legal issue because, again, 46110 gives a non-party, someone stranger to the agreement, the ability to challenge the authority of the FAA or any agency, the FAA in this instance, to enter into that arrangement, whether it is contingent on a judgment or consent decree or not.

[00:09:20] Speaker 05:
And that, to me, is the real crux of this case.

[00:09:24] Speaker 05:
And the Cleveland decision out of this court, Cleveland County versus Cleveland, whatever, I don't recall, is exactly that, that a stranger to a consent decree can challenge it in a separate action.

[00:09:45] Speaker 05:
Now, in that case, it wasn't 46110,

[00:09:48] Speaker 05:
was challenged, was properly brought under the Administrative Procedure Act in another district court.

[00:09:55] Speaker 07:
If the challengers had been granted intervention, couldn't they have raised all of these arguments, Surplus Property Act and so on, in the California District Court?

[00:10:08] Speaker 05:
That's an interesting question because the Ninth Circuit does seem to say that you can raise legal issues, but that would be very

[00:10:16] Speaker 05:
risky if, for example, Judge, if we were able to overcome opposition and intervene, which we're not able to do, and Judge Walter looked at it, what happens if Judge Walter decides that maybe he doesn't have jurisdiction?

[00:10:35] Speaker 05:
That's a problem for us, so we would have had... We could appeal that.

[00:10:39] Speaker 05:
Well, we could have appealed it, but we would have had to file 46110 in any event to protect ourselves because the 60-day clock is ticking away while we're engaged in all of this.

[00:10:51] Speaker 06:
Which brings me back to my question.

[00:10:53] Speaker 06:
Why didn't you file your 46110 in the Ninth Circuit?

[00:10:56] Speaker 05:
I'll be very blunt about that because we didn't have to.

[00:10:59] Speaker 05:
We are entitled to be in this court.

[00:11:02] Speaker 05:
And 46110 gives us the choice.

[00:11:05] Speaker 05:
This is the court, in our view, that handles most administrative law issues, and this is a national issue, this is a national case.

[00:11:15] Speaker 05:
Here we are.

[00:11:17] Speaker 05:
You know, could we have filed them?

[00:11:19] Speaker 05:
I'm not sure we could have.

[00:11:20] Speaker 05:
We saw no advantage to doing that and no benefit to doing that.

[00:11:24] Speaker 05:
And of course this court has the power to send it back to the Ninth Circuit if it so wants.

[00:11:30] Speaker 05:
But again, I suggest having gotten this far, and I see my time is up, but having gotten this far, there's no benefit.

[00:11:40] Speaker 06:
Well, this settlement agreement slash consent decree.

[00:11:44] Speaker 06:
I mean, that's how it's titled.

[00:11:47] Speaker 06:
And it's drafted like.

[00:11:49] Speaker 06:
Settlement agreement slash consent decrees are drafted every day in federal district courts across this country.

[00:11:57] Speaker 06:
Sure, it's a settlement agreement and then the only thing that makes it a consent decree is a line at the bottom that says it is so ordered.

[00:12:06] Speaker 06:
Where district judge signs off on it.

[00:12:10] Speaker 05:
And it's a rarity.

[00:12:12] Speaker 05:
In fact, I've never seen it, and I don't think any case has come up that we have seen where the agency involved then says that makes it proof from 46110 challenge.

[00:12:26] Speaker 05:
the fact that it was a consent decree somehow changes this from what otherwise would clearly be a final order.

[00:12:34] Speaker 05:
I don't think anybody contends that if there was no consent decree, this would be a final order.

[00:12:40] Speaker 05:
And it does all the things that a final order would do from the FAA that all of a sudden it magically isn't a final order because they've chosen to use a consent decree.

[00:12:52] Speaker 05:
There's no case that so indicates and that changes the character.

[00:12:57] Speaker 05:
And as I say, the domestic security case suggests there's nothing wrong with the contingency.

[00:13:04] Speaker 05:
I grant you the contingency there was not a court.

[00:13:08] Speaker 05:
should that really make a difference?

[00:13:10] Speaker 05:
It's a complication that the government obviously is relying on, having set it up to begin with, but it really should not be a barrier.

[00:13:21] Speaker 06:
So if the FAA in the Central District of California filed a motion for summary judgment, let's just suppose in the course of that litigation,

[00:13:37] Speaker 06:
Is that motion the final order?

[00:13:40] Speaker 05:
No.

[00:13:41] Speaker 06:
OK, so if the if the motion is granted by the district court and then there's a judgment in favor of the FAA.

[00:13:52] Speaker 06:
Then.

[00:13:53] Speaker 06:
The courts judgment.

[00:13:55] Speaker 06:
is a final order, but it's not appealable under 46110, right?

[00:13:59] Speaker 05:
No, it's not a final order.

[00:14:02] Speaker 05:
It's a final order of the terms.

[00:14:04] Speaker 06:
It's not a final order of the FAA.

[00:14:06] Speaker 06:
It's a final order of the court.

[00:14:08] Speaker 05:
Right.

[00:14:09] Speaker 05:
But it's not a final order as in caps, subject to 46110.

[00:14:15] Speaker 05:
It is an order that is final.

[00:14:18] Speaker 05:
But that were appealable, I guess.

[00:14:21] Speaker 06:
But so an FAA motion for summary judgment, which asked the court to enter judgment on its behalf.

[00:14:29] Speaker 06:
isn't necessarily a final order for 46110 purposes.

[00:14:33] Speaker 05:
Absolutely not.

[00:14:34] Speaker 06:
So why is this?

[00:14:35] Speaker 05:
Because this is a decision of the FAA which is subject only to a contingency which does not convert it into a court order in its entirety.

[00:14:49] Speaker 05:
It is still a final order of this agency and if you think about

[00:14:55] Speaker 05:
I would suggest the implications of that, that if the FAA can protect itself from review under 46110, which is absolutely essential whenever it does something like it has done here, which is to release an airport from obligations,

[00:15:17] Speaker 05:
if it can shield it from review by the simple expedient of asking for a consent decree, which is a very common thing.

[00:15:27] Speaker 03:
Why do you keep calling that a simple expedient?

[00:15:29] Speaker 03:
I mean, it's by making it conditional on a consent decree in the central district of California, it's subjecting itself to the jurisdiction of a federal court reviewed by the Ninth Circuit.

[00:15:42] Speaker 05:
That's true.

[00:15:45] Speaker 05:
So does that screen it from 46110?

[00:15:47] Speaker 05:
That's the question.

[00:15:49] Speaker 03:
And I suggest it does not.

[00:15:51] Speaker 03:
That turns on whether this is a final order.

[00:15:57] Speaker 05:
That's absolutely correct, of course.

[00:16:00] Speaker 03:
Thank you.

[00:16:15] Speaker 04:
Thank you, Your Honor, and may it please the Court, Tyson Walters for the Government.

[00:16:20] Speaker 04:
For an order to be final and reviewable, it must determine rights and obligations.

[00:16:24] Speaker 04:
That is, in the words of this Court, it must have a direct and immediate effect on the day-to-day business of the parties challenging the action.

[00:16:32] Speaker 04:
But as your honor's questions demonstrate, it was the consent decree and not the settlement agreement that had that direct effect.

[00:16:39] Speaker 07:
The settlement agreement was a... Can I ask, there are a couple of provisions that cut against this view that now it's all about the consent decree.

[00:16:50] Speaker 07:
So one of them is provision that says,

[00:16:54] Speaker 07:
the consent decree expires, and once it expires, the expiration of the consent decree does nothing to impact the validity of the agreement, which continues to have force and effect.

[00:17:08] Speaker 07:
Doesn't that tend to support your friend's view that the agreement is not just superseded, it has independent force and effect?

[00:17:19] Speaker 04:
No, Your Honor, for a few reasons.

[00:17:21] Speaker 04:
The first, of course, is that if the agreement were not entered as a consent decree, it would, on its face, have had no force in effect.

[00:17:30] Speaker 04:
So it's difficult to say that it's the settlement agreement rather than the consent decree.

[00:17:35] Speaker 07:
No, but why wouldn't you say the agreement became the agreement, in addition to the consent decree, became final upon entry

[00:17:46] Speaker 07:
because it was drafted so that the agreement piece of it would survive independent of and beyond the judgment piece of it.

[00:17:58] Speaker 04:
Once the consent decree does expire in 2028, Your Honor, it's true that at that point, the settlement agreement might be doing some work.

[00:18:06] Speaker 04:
It's actually difficult to see exactly what it is that would be

[00:18:10] Speaker 04:
It would be doing once the consent decree has expired, but presumably that was just in there so that the parties would have had protection and make certain that in twenty twenty nine, for instance, the FAA won't suddenly come calling after the city.

[00:18:25] Speaker 07:
Let me ask you one more about pre-expiration, which is that only certain parts of this consent decree are judicially enforceable.

[00:18:37] Speaker 07:
And one of the parts that's not judicially enforceable is the provision that says Santa Monica can stop running the airport in, whatever, 2029.

[00:18:50] Speaker 07:
So why doesn't that strongly suggest that what the parties wanted and what the court ordered was a sort of hybrid and some pieces of it would operate more like a judgment and others, including the closure provision that they are most concerned with, really were just the agreement?

[00:19:11] Speaker 04:
So a few things.

[00:19:13] Speaker 04:
The first is, again, I would return to the fact that this agreement would have had no force were it not entered as a consent decree.

[00:19:18] Speaker 04:
But as regards to that, it's I think just a consequence of the fact that the consent decree on its face expires at the same time that the city is permitted to close the runway.

[00:19:31] Speaker 07:
No, no, but even before expiration, this is in, I'm looking at 8B, I think, says the district court has jurisdiction to address, to provide injunctive reliefs only as to parts two to four, which are specific parts in the agreement.

[00:19:51] Speaker 07:
And the provision at issue here about closing the airport after 2028 is in part six.

[00:20:02] Speaker 07:
So that piece of it is never subject to enforcement through injunction.

[00:20:08] Speaker 04:
That's true.

[00:20:09] Speaker 04:
I'm not certain what the injunction that the district court would need to do would need to enforce there.

[00:20:16] Speaker 04:
I mean that that nothing needs to be done to permit the city to close the airport.

[00:20:20] Speaker 04:
All that would need to happen would be for the FAA not to take affirmative action against them.

[00:20:26] Speaker 04:
against the city, and obviously if it were to do that, then the city could return to the FAA and say you just violated this promise that we had had for many years.

[00:20:36] Speaker 04:
So I'm not certain, I assume that the reason that they didn't write that in is something that would be judicially enforceable, is that there just is no necessary mechanism for judicial enforcement of that provision.

[00:20:47] Speaker 03:
Let me ask you, are you done with that?

[00:20:51] Speaker 03:
Yeah.

[00:20:51] Speaker 03:
I wanted to ask you about your argument that

[00:20:56] Speaker 03:
that they like Article III standing?

[00:20:58] Speaker 03:
You're still taking that position?

[00:21:01] Speaker 04:
We are, Your Honor, though I would emphasize that much of that argument is based on their own admission that they would require an injunction against the city in order to have relief in this case.

[00:21:17] Speaker 03:
But setting that aside, if this court was to invalidate the settlement agreement,

[00:21:26] Speaker 03:
They would then have a powerful basis for going to the California court and asking it to vacate the decree.

[00:21:35] Speaker 04:
So they would certainly.

[00:21:37] Speaker 03:
Why wouldn't that give them Article III standing?

[00:21:40] Speaker 03:
In the words of the Supreme Court's Utah versus Evans, it would quote, a significant increase in the likelihood that the plaintiffs would obtain relief.

[00:21:57] Speaker 04:
I think what it would entitle the petitioners to do would be to argue to the district court that it should invalidate the consent decree.

[00:22:07] Speaker 04:
But the district court, of course, is under no obligation to do so.

[00:22:11] Speaker 03:
That's why I emphasize the word significant likelihood.

[00:22:16] Speaker 03:
It wouldn't obligate the California court.

[00:22:19] Speaker 03:
to set aside the decree, although it would create an interesting issue, wouldn't it, since the court already found it to be fair, reasonable, adequate, presumably in compliance with the law.

[00:22:32] Speaker 03:
So then if we invalidate it, who knows?

[00:22:39] Speaker 03:
So is that why you think there's not a likelihood

[00:22:42] Speaker 04:
I think the fact that an appeal of that approval would lie to the Ninth Circuit and that the district court already found that it was fair, reasonable, adequate, and presumably in compliance with law and that that would be appealed to the Ninth Circuit is certainly significant.

[00:22:56] Speaker 04:
I think what petitioners are really asking for is an advisory opinion that they hope would persuade courts within the Ninth Circuit that the consent decree was unlawful.

[00:23:05] Speaker 07:
But the district court in fairness didn't have before it any of these arguments that your friends on the other side are trying to make and did try to make and try to intervene in the court.

[00:23:17] Speaker 07:
District court said no.

[00:23:19] Speaker 04:
It's true, Your Honor, that the district court didn't have those arguments before it.

[00:23:23] Speaker 04:
That is in part because petitioners did not.

[00:23:26] Speaker 07:
So we can't really construe the district court's finding of a reasonable agreement as compelling evidence that it would not take into account an opinion from this court invalidating the agreement on legal grounds.

[00:23:43] Speaker 04:
Certainly not, Your Honor.

[00:23:45] Speaker 04:
And we're not saying that it would or wouldn't reach the same conclusion as this Court.

[00:23:48] Speaker 04:
It's that it would be a separate conclusion that it would ultimately have to reach independently.

[00:23:54] Speaker 07:
And I would emphasize... But if there's at least a significant likelihood...

[00:23:58] Speaker 07:
I don't want to quibble over the adverbs, but there's some chance of that.

[00:24:02] Speaker 07:
We're back to Judge Tatel's point that if they go from being absolutely foreclosed to having a colorable argument and support from this court, why isn't that good enough for redressability?

[00:24:17] Speaker 04:
That still seems to me, at least, to be an advisory opinion.

[00:24:20] Speaker 04:
I mean, the only thing that your honor's opinion would undoubtedly be very persuasive, but it wouldn't have any legal effect.

[00:24:28] Speaker 04:
And I did want to make clear that the Ninth Circuit and the district court did have the ability to consider all of these arguments that are being presented.

[00:24:38] Speaker 04:
All of the merits arguments could have been made to it.

[00:24:40] Speaker 04:
and petitioners chose not to seek to intervene and they chose not to ultimately appeal were they denied intervention or their objection was overruled.

[00:24:55] Speaker 04:
Thank you.

[00:24:56] Speaker 07:
Can I just ask on the merits?

[00:24:57] Speaker 07:
If we reach the merits, why don't we have to remand at least on the surplus property act point?

[00:25:06] Speaker 07:
The court made some of the required findings, but not all of them, and there wasn't a 30-day notice period.

[00:25:15] Speaker 07:
And maybe those aren't the gravest violations in the world, but they do seem pretty clear.

[00:25:23] Speaker 04:
So if this court were to reach the merits, if it concluded that it had jurisdiction, petitioners' arguments largely hinge on there having been an improper release of airport obligations.

[00:25:37] Speaker 04:
And in order for there to have been a release of airport obligations, there had to have been obligations to release.

[00:25:44] Speaker 04:
and petitioners have made absolutely no attempt to show that's true in arguing that an exercise of the Attorney General's Settlement Authority is unlawful, and that is a necessary predicate to their argument.

[00:25:56] Speaker 07:
You don't think the Surplus Property Act would apply to not just a property right that's open and shut, but one that's contested and that the government has asserted in case after case?

[00:26:12] Speaker 04:
Your Honor, I think if they want to say that the government acted unlawfully in entering into an agreement, yes, they would have to show that in fact a release was actually granted, and that requires the relitigation of... And there's no question the release was granted.

[00:26:27] Speaker 07:
It's on the face of the agreement.

[00:26:30] Speaker 04:
Well, certainly the agreement makes clear that if a release is necessary that it would be granted, but the agreement also made clear that it wasn't conceding either side's legal position, and the position of the city, which was hard fought, was that there was nothing in force that could be released.

[00:26:47] Speaker 07:
I understand that, but the federal government's position is that there was

[00:26:53] Speaker 07:
There was a continuing obligation and equally hard fought and worth litigating.

[00:27:02] Speaker 07:
I know the Civil Division doesn't pursue frivolous cases lightly, so you gave up something of value without the statutory notice requirements.

[00:27:14] Speaker 04:
But the statutory notice requirement, Your Honor, isn't for giving up something of value, it's for granting a release.

[00:27:20] Speaker 07:
And the question is... A release of something, at least a litigable position, which had value to the federal government.

[00:27:29] Speaker 04:
I don't think it's a release of a litigable position, Your Honor.

[00:27:35] Speaker 04:
It's a release of an obligation.

[00:27:36] Speaker 04:
And petitioners, I mean, this underscores what's so strange about this collateral attack on the consent decree, is that it really does require relitigation of the merits of the cases that were settled within the Ninth Circuit.

[00:27:50] Speaker 04:
Another way that I think is helpful to think about this, Your Honor, is as an exercise of the Attorney General's Settlement Authority.

[00:27:56] Speaker 04:
And in order to say that the attorney general acted unlawfully, obviously a settlement agreement is unlawful if it violates a statute, but it would still be petitioner's burden to come forward and say that the attorney general did something wrong, that it violated a statute.

[00:28:11] Speaker 04:
And it does seem that the necessary predicate to that is that a release was actually granted, and therefore that there was something in force to be released.

[00:28:22] Speaker ?:
Okay.

[00:28:22] Speaker ?:
Thank you.

[00:28:23] Speaker 04:
Thank you, Your Honor.

[00:28:34] Speaker 02:
May it please the court, Deion Maynard for the City of Santa Monica.

[00:28:38] Speaker 02:
This court should not allow petitioners to collaterally challenge the consent decree here.

[00:28:44] Speaker 03:
If petitioners gambit succeeds, parties... Are you making a standing argument or a final word argument, or both?

[00:28:52] Speaker 02:
Both, Your Honor, and also just a practical argument.

[00:28:56] Speaker 02:
If Petitioner's Gambit succeeds, parties will be discouraged from settling with the United States.

[00:29:01] Speaker 02:
But I concur with the United States that there is neither final agency action here nor redressability.

[00:29:10] Speaker 02:
But to take a step back, the city had extremely strong argument.

[00:29:14] Speaker 03:
You don't think it's enough for standing that invalidation of the settlement agreement here would increase the likelihood that they could get the consent decree vacated?

[00:29:24] Speaker 02:
No, Your Honor, I don't, for two reasons.

[00:29:27] Speaker 02:
And why?

[00:29:27] Speaker 02:
Well, just the notion that they would have to take an order from this court to the district court in California and ask it to consider it.

[00:29:34] Speaker 02:
shows what an odd procedure this is, especially since the place they should have taken... Yeah, odd, odd, right.

[00:29:41] Speaker 03:
But the question is, is there sufficient redressability for standing?

[00:29:45] Speaker 03:
Well, I think... That's the question.

[00:29:46] Speaker 02:
I think it's like this Court's decision in Dinah West, Your Honor, where the Sixth Circuit had finally decided an issue, and this Court said it was not going to decide the petitioner's arguments before it.

[00:29:59] Speaker 02:
because deciding it would have no practical effect, because a sister circuit had already decided the issue.

[00:30:05] Speaker 03:
But it would have a practical effect.

[00:30:06] Speaker 03:
They could go to the district judge in California and say, look, the predicate on which you entered the consent decree has now been invalidated.

[00:30:15] Speaker 02:
Don't you think that the court would at least take that seriously?

[00:30:18] Speaker 02:
The court will take it seriously, no doubt, Your Honor, but it's too late.

[00:30:23] Speaker 03:
Well, then that's my whole point.

[00:30:25] Speaker 03:
That's the whole point.

[00:30:26] Speaker 03:
It increases the likelihood that they will succeed.

[00:30:29] Speaker 03:
That's all they have to show.

[00:30:30] Speaker 02:
I think for justiciability under this court, for the notion that it would have practical immediate effect on their rights, it wouldn't.

[00:30:40] Speaker 02:
They would be taking it to the California District Court and asking the District Court to consider this court's views on the lawfulness of the settlement.

[00:30:48] Speaker 02:
They should have instead, if they wanted to challenge this,

[00:30:52] Speaker 02:
complained in the consent decree court.

[00:30:55] Speaker 02:
That was the court with jurisdiction over the consent decree.

[00:30:58] Speaker 02:
That consent decree has now been final and unappealed for over a year.

[00:31:02] Speaker 02:
And it's too late for them to go to the consent decree court now.

[00:31:06] Speaker 02:
They came here 12 days after entry of the consent decree.

[00:31:09] Speaker 02:
The United States moved to dismiss their petition here for lack of jurisdiction 12 days later.

[00:31:15] Speaker 02:
And in that petition, the United States specifically said, if petitioners desire to challenge the consent decree, they can attempt to seek relief from the Central District of California, the court that actually reviewed and approved the settlement, and perhaps appeal to the Ninth Circuit.

[00:31:29] Speaker 02:
That's at page seven.

[00:31:30] Speaker 02:
That was filed on February 24th.

[00:31:32] Speaker 02:
They did not go there, and they stayed here.

[00:31:35] Speaker 07:
Judge Wilkins, to your question, if this court... At least, just on that point, at least some of the challengers, two different groups of challengers, as I understand it, tried to intervene and were denied pretty summarily.

[00:31:51] Speaker 07:
So why doesn't that

[00:31:53] Speaker 07:
Cut in their favor at least at least to the extent that they're trying to go to the preferred form and.

[00:32:01] Speaker 02:
They were that was foreclosed to them 2 points about that judge Katz's 2 of these petitioners tried to move to intervene before the settlement agreement.

[00:32:10] Speaker 02:
They did they had a right in 9th circuit to immediately feel that they did not.

[00:32:14] Speaker 07:
Right, but at that time, pre-settlement agreement, there might have been pretty good reason to think that the FAA adequately represented the interests on that side of the case and that appeal wouldn't have been very compelling at that time.

[00:32:34] Speaker 02:
But even so, then, Your Honor's point makes a good point that if they wanted to seek intervention, they needed to try to do so again.

[00:32:40] Speaker 02:
And some of these petitioners have not yet sought and been denied intervention.

[00:32:43] Speaker 07:
Post-agreement.

[00:32:43] Speaker 02:
And that's right.

[00:32:44] Speaker 02:
And they came here, they came to this court 12 days after the consent.

[00:32:48] Speaker 07:
Okay, but then we have the agreement is announced, what?

[00:32:51] Speaker 07:
Friday night and entered on a Monday morning or something like that It was announced on January 28th, which was a Saturday, right?

[00:32:59] Speaker 02:
The parties moved to for the consent to be created on Monday on January 30th And it was entered on February 1st in the night search faulting them for whatever missing a four-day window four or five-day window including the weekend and

[00:33:14] Speaker 02:
No, Your Honor, the law is clear, the Supreme Court has made clear that one can petition to intervene, can move to intervene, to challenge a consent decree after its entry, and the Ninth Circuit has suggested that one needs to do that, however, within the time to appeal, which here did not run until April the 3rd, yet they came to this Court, they came to this Court on

[00:33:37] Speaker 02:
February the 13th, the United States moved to dismiss for lack of jurisdiction in this court on February the 24th.

[00:33:44] Speaker 02:
They opposed that motion in this court on March the 6th, all within time under the Ninth Circuit's law to seek to intervene to challenge the consent decree in the proper court, yet they did not do so.

[00:33:55] Speaker 02:
The city has acted in reliance on this consent decree.

[00:33:58] Speaker 02:
It has dismissed its litigations.

[00:34:01] Speaker 02:
It has spent millions of dollars shortening the runway.

[00:34:05] Speaker 02:
Neither party got what they wanted out of this settlement agreement, and third parties on both sides are unhappy with the outcome.

[00:34:12] Speaker 02:
But it is final.

[00:34:13] Speaker 02:
If petitioners wanted to challenge it, they needed to go to the consent decree court and appeal, if necessary, to the Ninth Circuit.

[00:34:20] Speaker 02:
That was the proper mechanism to raise all of these challenges, and yet they did not do it.

[00:34:25] Speaker 02:
Judge Wilkins, to your question, no, this court cannot and should not transfer this case to the Ninth Circuit.

[00:34:31] Speaker 02:
First, there's no jurisdiction in any court of appeals to hear this under 46.110 for the reasons the United States has stated.

[00:34:37] Speaker 02:
And so therefore, there would be no jurisdiction to transfer it and no jurisdiction for the Ninth Circuit to hear it.

[00:34:43] Speaker 02:
If they wanted their complaints heard, they needed to go to the district court.

[00:34:47] Speaker 02:
The city would request that the court dismiss this petition.

[00:34:51] Speaker 02:
All right.

[00:34:52] Speaker 03:
Thank you.

[00:34:52] Speaker 02:
Thank you.

[00:34:54] Speaker 03:
Let's see.

[00:34:55] Speaker 03:
Mr. Simon, you were out of time, but you can have two minutes.

[00:34:58] Speaker 05:
Thank you, Your Honor.

[00:34:59] Speaker 05:
Just very briefly, the question of obligations, not proving obligations, the only place that we have certainly adequately alleged it,

[00:35:12] Speaker 05:
in the asserted in our opening brief, the only place we could have proven it would be in two cases that were dismissed by the other side.

[00:35:26] Speaker 05:
They dismissed both the district court and the federal Ninth Circuit cases, which is the only locus where you can prove

[00:35:36] Speaker 05:
that they were in fact obligated.

[00:35:39] Speaker 05:
I think that's a red herring.

[00:35:41] Speaker 05:
Second of all, on redress, under the Utah case, I think you've already indicated the likelihood of redress is the test.

[00:35:52] Speaker 05:
If this court vacates the settlement, then the city is back to being obligated.

[00:36:01] Speaker 05:
And that alone, it will not be able to close the airport

[00:36:06] Speaker 05:
absent some further action about by some court, and that alone is substantial redress with nothing else.

[00:36:14] Speaker 05:
It's actual, not likely.

[00:36:16] Speaker 06:
What impact does it have on the shortening of the runway, which has already occurred?

[00:36:21] Speaker 05:
Well, that occurred well after this case was filed, and that's on the city.

[00:36:25] Speaker 05:
They chose to go ahead and do it.

[00:36:27] Speaker 05:
It hasn't been shortened per se.

[00:36:29] Speaker 05:
It's been restructured.

[00:36:30] Speaker 05:
So the physical runway is still there.

[00:36:34] Speaker 05:
Can it be undone with a can of paint, I think is the answer to that.

[00:36:38] Speaker 05:
I don't mean to be flippant about it.

[00:36:39] Speaker 05:
It's not a big deal.

[00:36:45] Speaker 05:
Can an agency – can the FAA insulate itself from review by – Well, you keep – you keep starting your sentence that way.

[00:36:54] Speaker 03:
It has not – it's only insulated its action for review in this court.

[00:37:00] Speaker 03:
Or in a certain – Not in the Central District of California.

[00:37:04] Speaker 05:
No.

[00:37:04] Speaker 05:
It has insulated itself from 46110 review wherever.

[00:37:09] Speaker 03:
Well, that's because if its action isn't final, then it isn't reviewable under this statute.

[00:37:15] Speaker 05:
Granted, that's the issue.

[00:37:18] Speaker 05:
Thank you, Your Honor.

[00:37:19] Speaker 03:
Thank you.

[00:37:20] Speaker 03:
Case is submitted.

[00:37:21] Speaker 03:
Please call the next case.