[00:00:00] Speaker 01:
Case number 21-5283.

[00:00:01] Speaker 01:
Annotables recommend Charles Krause reporting LLC, the DC limited liability company at Balance, versus United States Postal Service.

[00:00:12] Speaker 01:
Mr. Toronto for the balance, Mr. Solzman for the appellee.

[00:00:17] Speaker 03:
Good morning council, Mr. Toronto, please proceed when you're ready.

[00:00:38] Speaker 02:
Good morning, Your Honor, and may it please the Court.

[00:00:42] Speaker 04:
The Supreme Court and other federal courts have uniformly held that they must provide complete relief for a plaintiff's ongoing constitutional injuries to the extent possible.

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So far as we are aware, no case holds otherwise.

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The government asks this circuit to be the first.

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The implementation of the complete relief principle can be complicated in some cases, but it is very simple here.

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because of everything about which the parties and the district agree.

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Everyone agrees that we have an ongoing constitutional injury.

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Everyone agrees that an order and our postage would completely cure that injury.

[00:01:21] Speaker 04:
Everyone agrees.

[00:01:22] Speaker 00:
I guess I'm not so sure that everyone agrees you have an ongoing constitutional injury.

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I think what they say is we can't prove that one standpoint at some point circulate again.

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That's different, isn't it?

[00:01:38] Speaker 04:
I don't think it is, because that is basically a mootness argument.

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This court's prior decision was.

[00:01:45] Speaker 03:
Would you mind just putting the mics in a position?

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Maybe you could even raise the podium a little bit with the switch.

[00:01:52] Speaker 03:
That works.

[00:01:54] Speaker 03:
Thank you.

[00:01:54] Speaker 04:
Excuse me.

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I don't think it is different, because the idea that our injury has vanished since the litigation began, that is a mootness

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And USPS clearly bears the burden to show this.

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It didn't put in any evidence at all about the dwindling of postage over time.

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And it has information to that.

[00:02:18] Speaker 00:
Well, you're seeking injunctive relief, correct?

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That's correct.

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And under the swim course decision in Lyons, you have to establish standing to obtain injunctive relief.

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And to do that, you have the burden of showing that there's something more than a speculative risk of injury.

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How have you done that?

[00:02:40] Speaker 04:
So in lions, the issue was recurrence of an injury where

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I think that's the exact same here.

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I mean, you had the original injury, but we are now at the time the district court was considering what relief to enter summary judgment.

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You had to show to the summary judgment standard that you had standing to obtain that injunctive relief that you're asking for here.

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And I, so now it's not the burden on the government, the burdens on you to demonstrate that there's something beyond speculative.

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that this injury will recur?

[00:03:22] Speaker 04:
This is not a case about a recurrent injury.

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It is about an ongoing injury.

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So we're not saying and did not say below that, oh, we can get stopped for a while, but it might come back.

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The issue is that the forum remains open.

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Other people still have customized postage that they can use.

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As far as we know, there could be millions of these still out there.

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many of them could be political and could have been granted.

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So your injury would be ongoing.

[00:03:53] Speaker 00:
Um, if let's say that they could, the government could actually demonstrate that there are not and will not be any more stamps that contain, assuming we couldn't ascertain what this means, a political message ever again, you would still have an ongoing injury.

[00:04:14] Speaker 04:
And the forum is closed.

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I think if they've all been used, right?

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If they're all out of... I'm telling you that they've proven one way or the other that there's not going to be another stamp out there, at least that is political, however that is to be determined, and the forum is otherwise closed.

[00:04:32] Speaker 00:
So somebody might still send out their wedding stamp, something like that.

[00:04:36] Speaker 04:
In that circumstance, we would not.

[00:04:39] Speaker 00:
Okay, so it sounds like the question then for you, that your theory is

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not ongoing, but recurring because someone will be sending out, even though the forum is closed, someone's going to send, we think there's a prospect or the government hasn't disproven that there won't be another political stamp out there.

[00:04:59] Speaker 04:
I don't agree with that because the political stamps are out there.

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The government had the burden.

[00:05:07] Speaker 00:
Well, if they're in people's houses, that doesn't count, does it?

[00:05:10] Speaker 04:
Yeah, they are because the use, the speech in the forum,

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is the use of the postage to send mail.

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No, that's what I'm saying.

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If they happen for a collector's item, they're never going to, no one's going to send mail.

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If the government could show that no one's actually ever going to use these things again.

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Use them to go through the mails.

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Then the forum is closed.

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But I think there's a very important difference between the program being closed and the forum.

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They didn't close the program.

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They stopped making new customized postage.

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But what they haven't done is actually closed the forum.

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The analogy that we used in

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the last appeal.

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And I think this court accepted it.

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Wait, you're saying that they haven't closed or forbidden those who had stamps before.

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Correct.

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Continuing to use.

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They've certainly shut down the program.

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Right.

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That's correct.

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You're just saying there are some, there are some stamps out there.

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We don't know how many.

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And because there are some out there, we should be able to put ours out there.

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But to put yours there would be in violation of the program, which they have permissively shut down.

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I think it would be, I mean, I don't think it would be in violation of anyone else's rights.

[00:06:27] Speaker 06:
Well, it's in violation of their program, permissively.

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They adopted a new program, getting rid of the old program.

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In other words, we're not doing this anymore.

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And you're saying, well, make an exception for us because we previously suffered harm.

[00:06:41] Speaker 04:
I think it's not because we previously suffered harm.

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It's because harm from what from the prior viewpoint, discriminatory policy is ongoing because of all the customized postage that remains out there.

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Wait, I thought you said not all customized postage, only the risk of some of the political

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Which was only for a couple years, as far as we know on, again, a summary judgment on Zazzle.

[00:07:06] Speaker 04:
The record only covers a few years of postage that was granted, but Zazzle had this written policy of, we don't forbid all political speech, we just forbid political speech to be considered controversial.

[00:07:18] Speaker 04:
That policy was in place for a long time.

[00:07:19] Speaker 00:
Well, as I read the district court's finding on summary judgment, this was

[00:07:24] Speaker 00:
the problem that you had identified a viewpoint discrimination was confined to, I've got the dates right and you can correct me if I'm wrong, but 2015 to 2016, and mainly one person who was issuing a lot of, was authorized or making a lot of these viewpoint discriminatory decisions about what would count as political or not.

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Controversial maybe under their test.

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I don't think it's right that this was one person.

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I think there were a few,

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like electioneering designs, where Zazzle fired someone because that seems to have been a mistake.

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Our claim is not based on those.

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Our claim is based on flag designs, the pro-Burgerfell designs, the support our troops designs.

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These are political messages that Zazzle thought.

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Have you challenged on this appeal anything other than the remedy?

[00:08:16] Speaker 04:
No, we're not.

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So what you take is given the district court's analysis on the merits of the summary judgment decision.

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And, and, and you have not yourself shown that there's any, you haven't been able to show at the summary judgment level that there's a prospect, anything beyond sort of a speculative prospect that another one of those stamps and that period identified by the district court will be used, which is nobody can prove one way or the other, correct?

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Right.

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But I think first it is plainly,

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USPS's burden to show that they won't be.

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I don't know how plainly it is if this is looked at from Lion's angle.

[00:08:56] Speaker 04:
Well, I think it's the defendant's burden to show mootness and it's the defendant's burden to show mootness.

[00:09:02] Speaker 00:
I'm not arguing mootness, I'm arguing whether you're entitled to injunctive relief.

[00:09:05] Speaker 04:
Right, I think even for injunctive relief, it can't then be the plaintiff's burden to also show non-mootness.

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If we had a discovering period, we... Not mootness, nobody knows of it, they don't know for sure.

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I mean, that's been your argument.

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We don't know who knows for sure if no one's going to come and arguing muteness, muteness, arguing.

[00:09:24] Speaker 00:
Does the prospect of it recurring?

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Is it high enough to warrant?

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Is it substantial enough?

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I think it's the word used in lions, substantial enough to warrant an exercise as an injunctive relief or could a district court decide that it wasn't substantial enough?

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to warrant injunctive relief underlines.

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That's all I'm asking.

[00:09:46] Speaker 04:
Yeah, our position is that it's not at all about recurrence.

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Likelihood of recurrence is not relevant.

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The risk of your injury, which you've agreed here is another political stamp going, one of these customized stamps going through the mail.

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And so if the district court did not find a substantial or you did not establish a substantial prospect of that happening,

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under Lyons injunctive standing for injunctive relief.

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District court could determine that is you your burden than the standing stage is jurisdictional would be to establish substantial prospect.

[00:10:24] Speaker 04:
I don't think that's right because it's undisputed that these pieces of political customized postage can be used at any time.

[00:10:34] Speaker 04:
It's basically at the discretion of the people who have the holder.

[00:10:38] Speaker 03:
But but it's but

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It's still I mean, you're not saying that there's a constitutional injury because of the risk that they can be put in the mail.

[00:10:47] Speaker 04:
I think there's a constitutional injury because the universe designs that people can use to speak through the mail on postage still includes today, regardless of whether I mean, it still includes today.

[00:11:07] Speaker 04:
Various

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political images as far as we know.

[00:11:10] Speaker 03:
But the question is, do you have an injury just because somebody has them and could use them?

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Or is it an injury that manifests when it in fact is used?

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I think it's actually enough that they could use it, and here's why.

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So then even if you knew to a moral certainty that everybody just had them as a collector's item, you'd still say that you're entitled to an injunction.

[00:11:36] Speaker 04:
If there was some way to actually show, oh, this is now such a collector's item, you couldn't actually use it to send mail?

[00:11:43] Speaker 03:
No, not that you couldn't.

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Not that there's a legal bar, but just as a matter of fact.

[00:11:48] Speaker 04:
Right.

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I think that's right.

[00:11:49] Speaker 03:
And we do... Well, you think what's right.

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If you just knew as a matter of fact that people are going to keep them as collector's items.

[00:11:56] Speaker 04:
And only as collector's items?

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Yeah.

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Then I think we would not have an inquiry anymore.

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But then it seems to me that

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It's either that you have an injury because of the risk that somebody could use what they have, or you don't actually have an injury until somebody in fact uses it.

[00:12:15] Speaker 04:
The injury doesn't come from the other people speaking.

[00:12:21] Speaker 04:
The injury comes from the government's continuing authorization of those people to use.

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the stance, that authorization.

[00:12:30] Speaker 03:
But that's just a risk.

[00:12:31] Speaker 04:
I'm sorry.

[00:12:32] Speaker 03:
No, that's true even in the collector's item situation.

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That exists even if, in fact, the people make their own decisions.

[00:12:39] Speaker 03:
It's not the government that's telling you they have to use them at a collector's item.

[00:12:41] Speaker 03:
That's right.

[00:12:43] Speaker 04:
Then I think that our position is that the injury comes from the government's continuing authorization that lets other people speak in this way.

[00:12:53] Speaker 04:
And it's as if you had a government-sponsored art show

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criteria is viewpoint discriminatory.

[00:13:01] Speaker 04:
And then they say, OK, we're closing the art show.

[00:13:04] Speaker 04:
But anyone who put their art up on the walls, you can take it down in your own time.

[00:13:09] Speaker 04:
We're not going to make you take it down.

[00:13:11] Speaker 04:
You can leave it up there as long as you please.

[00:13:15] Speaker 04:
Or maybe we'll reserve a space for you.

[00:13:17] Speaker 04:
You haven't put it up yet, but we have already reserved a space for you.

[00:13:21] Speaker 04:
So you can go put it up at some time in the future and take it down, please.

[00:13:26] Speaker 04:
or continuing injury.

[00:13:27] Speaker 04:
And I do want to circle back to one of Judge Mollett's questions, which is we do have an example from April 2021 of a piece of political customized postage during Gugarin, the Soviet cosmonaut, and he has a big CCCP on his helmet.

[00:13:42] Speaker 04:
And it's sort of this commemorative Soviet stamp.

[00:13:46] Speaker 04:
That was available for repurchase on eBay for about $26.

[00:13:49] Speaker 04:
And that was in April 2021.

[00:13:52] Speaker 04:
So that's kind of the last.

[00:13:54] Speaker 00:
That was Zazzle?

[00:13:55] Speaker 04:
It was Zazzle.

[00:13:56] Speaker 04:
Okay.

[00:13:58] Speaker 00:
And it's, is it, does he raise that to the district court and was it agreed that counts as political?

[00:14:03] Speaker 04:
Um, we didn't talk about whether that specifically counts as political, but that's a 17, 23 to 28.

[00:14:11] Speaker 06:
So what would satisfy you is they had a rule which announced that impermissible for anyone who bought these stamps previously to use them.

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any longer.

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And if any of that group wants to come in and get a refund for their purchase, we'll give it to you.

[00:14:27] Speaker 06:
But you cannot, it's against our regulations to use these in the mail.

[00:14:31] Speaker 06:
That's it.

[00:14:33] Speaker 04:
That would be partial.

[00:14:36] Speaker 04:
It would not be completely.

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Why?

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Because it's pretty unlikely that that would actually get rid of all the existing political customized postage.

[00:14:44] Speaker 04:
You'd be leaving it up to this discretion of lots and lots of individuals and

[00:14:51] Speaker 04:
I think we agree with the governor.

[00:14:52] Speaker 06:
What else are they supposed to do?

[00:14:53] Speaker 06:
This is what the district court was concerned about.

[00:14:55] Speaker 06:
It's utterly unmanageable what you're asking.

[00:14:58] Speaker 06:
I'm giving you a best case scenario at least that I can think of.

[00:15:03] Speaker 06:
Soon the commission said, and the service follows it, these stamps previously sold may not be used anymore.

[00:15:10] Speaker 06:
It's impermissible as a matter of our rules.

[00:15:13] Speaker 06:
You want to bring them in and get a refund, we'll do that, but you cannot use these.

[00:15:18] Speaker 04:
Yeah, so I think that would

[00:15:21] Speaker 04:
end the case, but it is not the right remedy for a couple of reasons.

[00:15:25] Speaker 06:
It's not your preferred remedy, but why is it wrong?

[00:15:28] Speaker 04:
Because it burdens a lot of third parties who are not before the court.

[00:15:32] Speaker 04:
If USPS says that we're just going to invalidate a bunch of postage that we sold you, that's basically taking property from everyone involved.

[00:15:47] Speaker 05:
We will pay you for it.

[00:15:49] Speaker 04:
Right.

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So I think if they actually did

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and validate this stuff and they found everyone who had it and paid them for it.

[00:15:57] Speaker 04:
That is all well and good.

[00:15:58] Speaker 04:
It seems like it's a lot more trouble to USPS and to third parties than just printing two sheets of our poster.

[00:16:06] Speaker 04:
That our preferred remedy is the preferred remedy precisely because it is exceptionally easy.

[00:16:12] Speaker 04:
It does not require a big program.

[00:16:15] Speaker 04:
It doesn't require them to find and pay a ton of people who are

[00:16:20] Speaker 04:
not involved in this in any way.

[00:16:23] Speaker 06:
How much do you think your client should be free to put his preferred postage out in the market?

[00:16:33] Speaker 06:
To what extent?

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How much?

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For how long?

[00:16:36] Speaker 06:
And how are you measuring that?

[00:16:38] Speaker 04:
We are asking only for the two sheets that we initially ordered.

[00:16:42] Speaker 06:
For how long?

[00:16:44] Speaker 06:
And you just want two sheets?

[00:16:45] Speaker 04:
Just two sheets.

[00:16:46] Speaker 04:
Literally 40 pieces of postage is the end.

[00:16:49] Speaker 04:
Just what we initially

[00:16:50] Speaker 04:
from USPS.

[00:16:52] Speaker 04:
It strikes us as, first of all, a very intuitive remedy for a First Amendment violation.

[00:16:59] Speaker 04:
Usually, what happens in a First Amendment case when a plaintiff wins is that the plaintiff then gets to steal.

[00:17:04] Speaker 04:
So that's what we're going to ask for in the beginning.

[00:17:07] Speaker 04:
That is true, except the forum here is not closed.

[00:17:12] Speaker 00:
Can I follow up on that?

[00:17:14] Speaker 00:
Because you say it's easy, but the government raised the concern that if now the government were, after having closed down the program, to print a form of undisputedly, I think, political speech on a stamp selectively, they raised the concern that other people who had been denied in the past could go, wait, you can't just print

[00:17:41] Speaker 00:
his stamps.

[00:17:43] Speaker 00:
I've suddenly learned now that I've had my First Amendment rights violated.

[00:17:46] Speaker 00:
Let's assume they're in the timeframe just because the government will have reopened the issue by issuing your stamp.

[00:17:53] Speaker 00:
And so then they get to file a First Amendment claim and say, we want our stamps issued.

[00:17:58] Speaker 00:
And I take it that your, as I understood your answer in your brief, it was too bad for you.

[00:18:05] Speaker 00:
People get to enforce their First Amendment rights.

[00:18:08] Speaker 04:
That's,

[00:18:09] Speaker 00:
So it would in fact violate other people's first amendment rights for the government, for the government to undertake the remedy that you have requested.

[00:18:16] Speaker 00:
And the reason you don't think there's anybody else out there who was denied a political stamp.

[00:18:23] Speaker 04:
I think whoever else has an injury like ours has that injury already.

[00:18:29] Speaker 04:
And it doesn't change or become any greater in scope because our design is printed.

[00:18:35] Speaker 04:
And that's because our design would be printed

[00:18:38] Speaker 04:
except the government would be doing it again.

[00:18:40] Speaker 00:
The government would be repeating the very action that you argue was unconstitutional for the government to engage in.

[00:18:48] Speaker 00:
You want them to repeat it one more time for you.

[00:18:52] Speaker 00:
And so that would be an unconstitutional action by the government, at least if they said no to anybody else who then asked for their stamps to be

[00:19:02] Speaker 04:
That's not right because the reason for permitting or denying image into quantum customized postage is all in.

[00:19:13] Speaker 04:
This is a viewpoint discrimination case.

[00:19:15] Speaker 04:
And the reason that our design would be printed here doesn't have anything to do with our viewpoint.

[00:19:21] Speaker 04:
When Zazzle was denying or permitting images, it did have to be.

[00:19:25] Speaker 04:
So the injury comes from the application of that policy

[00:19:30] Speaker 04:
of we think this is controversial, we don't think this is controversial.

[00:19:33] Speaker 04:
Printing hard design doesn't create an injury for anyone.

[00:19:38] Speaker 04:
The claim is not merely that some political postage was printed.

[00:19:43] Speaker 00:
Well, we'd cry an injury if there's somebody out there that we don't know who has no way to know these unknowables.

[00:19:47] Speaker 00:
But someone says, I have the I Heart Citizens United stamp.

[00:19:51] Speaker 00:
I wanted to get printed.

[00:19:53] Speaker 00:
And was told no by the government via ZASM.

[00:19:58] Speaker 00:
And now I see the government issuing this.

[00:20:01] Speaker 00:
So that message is getting circulated by the government with its approval.

[00:20:06] Speaker 00:
The public's not going to go chase all down, look at the litigation, find there's some court order behind it.

[00:20:11] Speaker 00:
I see the government, I see the stamp going by.

[00:20:14] Speaker 00:
I see the stamp on something that came to me in the mail.

[00:20:19] Speaker 00:
They're going to have a First Amendment claim, are they not?

[00:20:21] Speaker 04:
If they are similarly situated to us, where they were denied by Zazzle for the same reasons, then they would have a valid claim.

[00:20:30] Speaker 00:
So then the government has to do the I heart Citizens United.

[00:20:34] Speaker 00:
And then somebody said, I liked a different Supreme Court case or I didn't like, they all have to do it.

[00:20:39] Speaker 00:
So this goes on for quite some time.

[00:20:41] Speaker 04:
If people are similarly situated to us in the sense that they submitted to Zazzle way back when,

[00:20:48] Speaker 04:
and they know about this.

[00:20:49] Speaker 00:
I also think it's a- What's your best case that the district court is obligated, under your theory, to commit another First Amendment violation to remedy one?

[00:21:02] Speaker 04:
I don't think we are asking for the district court to commit another- So there is no case that says that?

[00:21:08] Speaker 04:
Right.

[00:21:08] Speaker 04:
There is no case that says that.

[00:21:10] Speaker 04:
But I would direct the court to recite a bunch of cases in our brief, one that is particularly helpful is the Brown v. Plata case.

[00:21:18] Speaker 04:
the Brown v. Plata case.

[00:21:22] Speaker 04:
At 510 of that opinion, the court says, quote, quote, must not shrink from their obligation to enforce the constitutional rights of all persons.

[00:21:32] Speaker 04:
And the context is pretty powerful.

[00:21:36] Speaker 04:
That was an Eighth Amendment case about inadequate constitutionally inadequate medical care in the California prison system.

[00:21:44] Speaker 04:
And what you had there was

[00:21:47] Speaker 04:
the constitutional rights of prisoners to adequate medical care on one side and immense state interest on the other side, which was California's ability to keep 38,000 people in prison who it thought should be in prison.

[00:22:03] Speaker 04:
I think what that case illustrates is that even where state interest is far faster than any state interest asserted here, the enforcement of the constitutional right comes first, and it is the highest interest.

[00:22:17] Speaker 00:
I just have one other question to clarify on a different front.

[00:22:20] Speaker 00:
You argue in your brief that the declaratory judgment issued here was not worth the paper it was written on, I guess.

[00:22:31] Speaker 00:
It accomplished nothing.

[00:22:32] Speaker 00:
And in fact, before the district court, you even told it it did not have jurisdiction to enter the declaratory judgment because it would provide no relief.

[00:22:42] Speaker 00:
So if you're right, so essentially an advisory opinion or something.

[00:22:47] Speaker 00:
That's what you think it is.

[00:22:48] Speaker 00:
I take it you want us because you've labeled it jurisdictional to whatever we do on your injunctive question to vacate the declaratory judgment.

[00:22:58] Speaker 04:
I think that's right.

[00:23:00] Speaker 04:
But the issue with the empty judgment is that it just didn't change anything about the relations between the parties.

[00:23:10] Speaker 04:
And usually when this comes up, it is in the jurisdictional context.

[00:23:15] Speaker 04:
But the district court did hear

[00:23:16] Speaker 04:
issuing a judgment that it knew was going to do absolutely nothing in the real world, was so bizarre that the best way we could think of to explain why it can't be right to do that, and only that, is to report this.

[00:23:39] Speaker 00:
So just to confirm that you're, as a separate part of this appeal, you want the declaratory judgment vacated.

[00:23:45] Speaker 04:
I think we would like... No, no, no, that's not what I asked.

[00:23:51] Speaker 00:
What was your question?

[00:23:53] Speaker 00:
Sorry.

[00:23:54] Speaker 00:
He wants the declaratory judgment that was issued to be vacated because it was accomplished, nothing did not change the relationship between the parties and so effectively was an advisory opinion.

[00:24:02] Speaker 00:
As he told the district board, it lacked jurisdiction to enter that declaratory judgment.

[00:24:07] Speaker 04:
Yeah, I think the correct framing of that issue is that

[00:24:15] Speaker 04:
if the district or clearly had jurisdiction over the case, the remedy that it issued, uh, it lacked jurisdiction to issue that remedy as, as you told it.

[00:24:27] Speaker 03:
Okay.

[00:24:31] Speaker 03:
Thank you.

[00:24:31] Speaker 03:
We'll give you a little bit of time for rebuttal.

[00:24:36] Speaker 03:
Mr. Saltzman.

[00:24:44] Speaker 04:
Thank you, Your Honors, and may it please the Court, Joshua Salzman, on behalf of the Postal Service.

[00:24:49] Speaker 04:
I want to begin by emphasizing that the District Court's liability finding here rests entirely on a very small, enclosed universe of customized postage that was issued in the 2015 to 2017 time range by ZAS.

[00:25:03] Speaker 04:
We're talking about something on the order of 25 sheets of postage.

[00:25:09] Speaker 04:
Uh, I, I heard my, uh, opposing council reference here in the Garen stamp from 2021 to be clear, that was just a resale posting on a, on a secondhand website.

[00:25:20] Speaker 04:
And it's unclear whether that was even being sold as posted or as sort of a collector's item, somebody who might just want this commemorative stamp, not to send a letter, but rather just to keep.

[00:25:32] Speaker 00:
And I think we, I didn't go through, as far as you know, it didn't go through the mail.

[00:25:35] Speaker 04:
Precisely.

[00:25:36] Speaker 04:
And we have a very small universe and surely that has largely dwindled of postage that was the basis for the complaint here.

[00:25:45] Speaker 04:
Now, at the merit stage, the uncertainty cut against us.

[00:25:49] Speaker 04:
There's a stringent test for mootness.

[00:25:51] Speaker 04:
We couldn't show that there was not a Bernie 2016 stamp in somebody's drawer that they might then five, six years after the fact,

[00:26:01] Speaker 04:
choose to stick on a letter and to mail it.

[00:26:05] Speaker 04:
And because of the stringent test for mootness, we weren't able to prevail, particularly against the backdrop of this court's prior ruling in this case.

[00:26:14] Speaker 04:
But once you get to the medial phase, the calculus is different.

[00:26:17] Speaker 04:
You can think of it in standing terms and lines, as I heard Judge Millett do earlier, or you can also conceptualize it as just part of the balance of equities.

[00:26:26] Speaker 04:
What is the strength of the injury that they are showing once you start performing the equitable

[00:26:31] Speaker 04:
calculus.

[00:26:32] Speaker 04:
Either way, the district court committed no abuse of discretion in considering the fact that the program was closed, that the number of pieces of postage issued was infinitesimal compared to the larger size of the entire program and an array of other equitable factors in concluding that plaintiffs hadn't shown entitlement to their preferred injunctive relief.

[00:26:53] Speaker 06:
What do you think is, I want to make sure I understand what you think is the strongest argument.

[00:26:57] Speaker 06:
Are you saying that

[00:26:59] Speaker 06:
If there are some other pieces of postage out there they're offended by, the number is so small, it's to be insignificant.

[00:27:10] Speaker 06:
Or are you saying it would be too burdensome for the District Court and the Postal Service to try and figure out what that universe is?

[00:27:17] Speaker 06:
Or are you saying both?

[00:27:18] Speaker 06:
What are you saying?

[00:27:19] Speaker 04:
So what I'm saying is what the district court took account of in exercising its equitable discretion were an array of factors, including the relative harms to the parties, the relative burdens to the parties.

[00:27:31] Speaker 04:
The district court had before it a declaration from the Postal Service, from the executive director of grand marketing, Mr. Kropenko, the relevant sections at pages 896 to 897.

[00:27:41] Speaker 04:
It spoke to the district, to the postal services, just technical inability.

[00:27:46] Speaker 04:
to identify and claw back or invalidate whatever postage is out there.

[00:27:51] Speaker 04:
The district court also took account of the exceedingly small quantity of postage that was the basis for this and also the fact that the forum has been closed.

[00:28:02] Speaker 04:
That's what the district court said.

[00:28:03] Speaker 06:
What do they know about the small quantity?

[00:28:05] Speaker 06:
How can they definitively say that it's small?

[00:28:08] Speaker 06:
How small is

[00:28:10] Speaker 04:
So all I can say is that the merits ruling against us was predicated on a finding of an identified identification of just a handful of designs.

[00:28:21] Speaker 04:
The other reason we know it's small is because the point we produce massive discovery in this case, the plaintiffs were given access to a large number of the designs approved by Zazzle over the 2015, 2016 timeframe.

[00:28:36] Speaker 04:
And they had the opportunity to come forward with their best examples of a political postage and the only the district court found a few of them.

[00:28:46] Speaker 04:
qualifies political postage, and accordingly, we ended up losing on the merits.

[00:28:50] Speaker 04:
But again, once it shifts over to the remedial analysis, the factors weigh differently, and the size of the violation is certainly relevant to determining the propriety of equity.

[00:29:01] Speaker 06:
Well, but I'm still trying to get an answer from you if there is one.

[00:29:03] Speaker 06:
It may be that there isn't.

[00:29:04] Speaker 06:
That's why I was curious as to what your argument is.

[00:29:07] Speaker 06:
How large is that group?

[00:29:09] Speaker 06:
Are we talking about 10,000 stamps?

[00:29:11] Speaker 06:
Are we talking about 10?

[00:29:13] Speaker 06:
Are we talking about what?

[00:29:15] Speaker 04:
So the district court pointed to 25 sheets of stamps.

[00:29:18] Speaker 04:
I think it was comprising something like six designs.

[00:29:21] Speaker 04:
The district court also said that there were also opinion sites, a handful of additional designs as well.

[00:29:27] Speaker 04:
But in terms of the overall magnitude, I don't think the district court specifically quantified the number of political stamps, but said it was quite small.

[00:29:36] Speaker 04:
I think it used the word infinitesimal in its remedies opinion.

[00:29:40] Speaker 06:
And what's your first case authority?

[00:29:43] Speaker 06:
appears to be your argument that even though, yes, we lost, we didn't afford to lose on the claim that there was a constitutional violation, we found a constitutional violation is no doubt.

[00:29:55] Speaker 06:
And normally we give a remedy when we find a constitutional violation.

[00:29:59] Speaker 06:
And you're essentially arguing, well, no, there shouldn't be anybody here.

[00:30:03] Speaker 06:
What's your best case authority?

[00:30:05] Speaker 04:
I would say it's City of Mesquite versus Aladdin's Castle, footnote 10, which specifically, which was, by the way, cited and discussed in this court's prior opinion in this case, which stands... Really fine opinion.

[00:30:20] Speaker 04:
But I would say if you put note 10 draws a distinction between mootness and saying we have to reach the merits here.

[00:30:29] Speaker 04:
But nonetheless, depending on the likelihood of future violations, the district court will still have the opportunity to decide whether or not conjunctive relief is appropriate here.

[00:30:39] Speaker 04:
An injunction does not follow mechanically after every finding of a violation.

[00:30:44] Speaker 04:
The Supreme Court has said that numerous times, from Weinberger v. Romero-Barcelo, and the Imogo Products case, and Winter, and a number of other times too.

[00:30:53] Speaker 04:
It is a hallmark of equity jurisprudence that it does not apply mechanically.

[00:30:58] Speaker 04:
and that it's allowed to take and that we entrust district court, city as courts of equity to consider case specific factors and crafting a remedy.

[00:31:06] Speaker 04:
That's precisely what the district court did here.

[00:31:08] Speaker 04:
It's too well reasoned.

[00:31:10] Speaker 00:
The Mesquite is harkening to our body of attenuation doctrine cases where when a claim for injunctive relief just becomes apart from Lyons just becomes so attenuated because

[00:31:25] Speaker 00:
In those case, defendants have already complied with many, many aspects, have canceled the bad thing, no questions of voluntary cessation.

[00:31:33] Speaker 00:
It's all been largely resolved, maybe even without a court order, that it can just become too attenuated to make the intervention of injunctive relief warranted.

[00:31:43] Speaker 04:
And I think that's right.

[00:31:44] Speaker 04:
The district report rightly noticed noted here that the plaintiffs have already gotten a great deal out of this litigation.

[00:31:51] Speaker 04:
Now, a lot of that was through voluntary choices of made by the Postal Service.

[00:31:55] Speaker 04:
The Postal Service got out ahead of what might have been the result of litigation by shutting the forum down altogether.

[00:32:01] Speaker 04:
We've done our best to close this off.

[00:32:04] Speaker 04:
There are or at least we cannot rule out the possibility that there are some limited

[00:32:09] Speaker 04:
quantity of postage out there that we can't claw back and can't be certified.

[00:32:13] Speaker 04:
But we have done everything within our reasonable power to shut this program down.

[00:32:18] Speaker 06:
We can't claw back because we can't find it.

[00:32:20] Speaker 06:
We can't identify it.

[00:32:22] Speaker 04:
That's right, Your Honor.

[00:32:24] Speaker 04:
And this is in the Carpango Declaration today, 897.

[00:32:27] Speaker 04:
There was never a contractual relationship or a direct interaction with the customers here.

[00:32:35] Speaker 04:
This was handled exclusively by the vendor.

[00:32:39] Speaker 00:
And plaintiffs never subpoenaed Zazzle to get records of who bought what.

[00:32:44] Speaker 04:
That isn't something we've attempted.

[00:32:46] Speaker 04:
I'm not saying that there is.

[00:32:49] Speaker 04:
I don't know what records.

[00:32:51] Speaker 00:
Neither of you attempted to find that information.

[00:32:54] Speaker 04:
I'm candidly not certain, Your Honor.

[00:32:56] Speaker 04:
I don't want to take an absolute.

[00:32:58] Speaker 04:
I know Zazzle did produce some materials that are in the record here and did produce some discovery.

[00:33:03] Speaker 04:
I don't know whether that was voluntary or personal.

[00:33:06] Speaker 06:
What sense does declaratory relief make in a case like this?

[00:33:11] Speaker 04:
We didn't argue for declaratory relief here.

[00:33:13] Speaker 04:
And if the plaintiffs want the declaratory judgment struck down, we're not going to pose that.

[00:33:19] Speaker 04:
We're simply saying, whatever you think of the propriety of declaratory relief here, doesn't provide any basis for concluding this.

[00:33:27] Speaker 06:
Well, just give me your lawyerly impression on whether that makes sense, given the case

[00:33:35] Speaker 06:
and the rules is declaratory relief.

[00:33:38] Speaker 06:
I understand the side you have to represent.

[00:33:41] Speaker 06:
Does that make sense, declaratory relief in this circumstance?

[00:33:45] Speaker 04:
I understand, I certainly understand why there are reasons to think declaratory relief might not have been appropriate here.

[00:33:50] Speaker 04:
As the party that was the losing side of the declaratory relief, we haven't appealed from that judgment.

[00:33:57] Speaker 04:
But for what's relevant to this appeal, they tried to sort of boomerang that into saying declaratory relief was inappropriate and accordingly we were entitled to injunctive relief.

[00:34:07] Speaker 04:
And that's certainly where I would strongly take issue.

[00:34:09] Speaker 03:
But then would it be a case when they would have won but gotten no release?

[00:34:12] Speaker 03:
No.

[00:34:14] Speaker 03:
If declaratory relief is improper.

[00:34:17] Speaker 04:
If declaratory relief is improper, then perhaps there would be no court order of remedy in this case.

[00:34:24] Speaker 04:
But first of all, I think under City of Mesquite, that's not necessarily something that's inappropriate.

[00:34:31] Speaker 04:
But I'd also say, if you go back in time, if you go to JA 176, which is the prayer for relief in their complaint, and see what they hope to get out of this litigation,

[00:34:40] Speaker 04:
As the district court noted in its Rendy's opinion, they've gotten it.

[00:34:45] Speaker 04:
The prayer for relief said, for example, don't let Zazzle print any more postage until it prints our postage.

[00:34:50] Speaker 04:
Well, we've stopped letting Zazzle print postage.

[00:34:53] Speaker 04:
They got terminated in 2018, and then the entire program got shut down in 2020.

[00:34:58] Speaker 04:
Now, instead of that happening, we had litigated this case on the merits.

[00:35:02] Speaker 04:
And ultimately we've gotten an injunction that forced us to terminate ZASL or terminate the entire program.

[00:35:08] Speaker 04:
But the plaintiffs had also said, but make them print our stamps too.

[00:35:12] Speaker 04:
And the district court said, I'll give you the invalidation of the program, the prospective ongoing constitutional injury, the viewpoint discrimination, but on balance, I'm not going to award you in order requiring the postal service or ZASL to print the stamps.

[00:35:28] Speaker 04:
You wouldn't say they got no real beef out of this litigation.

[00:35:30] Speaker 04:
You would just say they got some of what they asked for, but they didn't get all of it.

[00:35:34] Speaker 03:
Can I ask the following question, which is just so I understand the government's theory.

[00:35:40] Speaker 03:
Suppose you have a situation in which the government constructs a program whereby they want to engage in viewpoint discrimination, or at least you have some officials that want to engage in viewpoint discrimination, and the way they execute the scheme is as follows.

[00:35:52] Speaker 03:
We're going to grant some of these stamps.

[00:35:54] Speaker 03:
We'll work with our vendor to grant some of these requests.

[00:35:59] Speaker 03:
But then the minute we get one that we actually don't want to grant, we'll deny it, but we'll terminate the program.

[00:36:05] Speaker 03:
And then that way, the stuff that's already out there can be circulated as much as people want to circulate it.

[00:36:10] Speaker 03:
But then we're going to be pretty sure that a court's not going to require us to grant this latest one and print them.

[00:36:17] Speaker 03:
We'll just end the program there and then the program will actually have been terminated and we'll sort of get the place where we want to be.

[00:36:23] Speaker 03:
And I assume that the government wouldn't say at that point, it's fine just to let things lie and the district court should not enter injunctive relief of any kind given the hypothetical design of the program.

[00:36:34] Speaker 03:
Obviously that's not what happened here or at least that's not being alleged.

[00:36:37] Speaker 03:
But what would be the route by which

[00:36:40] Speaker 03:
we would distinguish the two situations or a district court would distinguish the two situations such that they would grant broader remedial relief in this hypothetical scenario, but would still be okay in not doing it in the scenario we have.

[00:36:51] Speaker 04:
Yeah, I'm not asking for any one size fits all rule.

[00:36:54] Speaker 04:
I'm not saying that any time we shut down the program, that there's no room for conjunctive relief that would rectify a situation like the one you're talking about here.

[00:37:04] Speaker 04:
The district court here cited an array of these specific equitable factors.

[00:37:08] Speaker 04:
It was just given this particular confluence of facts

[00:37:12] Speaker 04:
found injunctive relief to be inappropriate.

[00:37:14] Speaker 04:
And I'm saying there was no abuse of discretion there.

[00:37:16] Speaker 04:
I'm not asking you to do anything more than affirm that application of equitable principles to this specific set of facts.

[00:37:24] Speaker 04:
Different equities, different scenario, different volumes of speech, different program design or intent, all of those things are the kinds of factors that courts of equity can and must take account of.

[00:37:36] Speaker 04:
I'm not asking for any categorical rule.

[00:37:39] Speaker 00:
Well, in that case, I assume

[00:37:41] Speaker 00:
declaratory judgment might do something like preventing them from doing it again the next year.

[00:37:47] Speaker 04:
That could be again, it would prevent them from doing it the next year.

[00:37:51] Speaker 04:
Oh, absolutely.

[00:37:52] Speaker 00:
If they had this manipulative intent.

[00:37:54] Speaker 03:
Oh, absolutely.

[00:37:55] Speaker 03:
Your honor.

[00:37:55] Speaker 03:
Yes.

[00:37:56] Speaker 03:
The question would be whether that would be enough or what is, would that alone be enough for the government say, well, we've ended the program and therefore all there needs to be is a declaration.

[00:38:04] Speaker 03:
See the precedent in this case.

[00:38:06] Speaker 03:
It's assuming we,

[00:38:08] Speaker 04:
I agree with you, I'm not asking you to write a precedent that would say if we approve.

[00:38:14] Speaker 04:
A billion of a 100 million process citizens United stamps out the mouth of the door, shut the program down and then said.

[00:38:23] Speaker 04:
No anti-citizens united stamp and there's nothing you can do about it while these are all out there and with this massive supply out there, that would be a very different equitable situation and I'm not asking you to write an opinion or to conclude that as a categorical matter shutting down the program would preclude injunctive relief.

[00:38:41] Speaker 00:
I thought the government's own issuance of postage stamps wasn't even an issue here because that seemed to be government speech and you issue stamps with flags

[00:38:52] Speaker 00:
on them and you issue commemorative ones.

[00:38:55] Speaker 00:
You can issue them Martin Luther King stamp and Harriet Tubman stamp and someone might argue those have some political overtones.

[00:39:02] Speaker 00:
So it seems to me it's just a very different thing anyhow because no one here is challenging the government's ability to speak stamps itself issues.

[00:39:09] Speaker 00:
This year was

[00:39:10] Speaker 00:
authorization of a form and regulation of it.

[00:39:13] Speaker 04:
Yeah, you're absolutely right, your honor.

[00:39:14] Speaker 04:
And I might have misspoke and use the word stamp there.

[00:39:17] Speaker 04:
I meant to talk about customized postage, but you're absolutely right to highlight very important distinction us between stamps, which are government speech and the customized postage program, which was intentionally structured not to be.

[00:39:31] Speaker 03:
Okay.

[00:39:32] Speaker 03:
Make sure my colleagues don't have additional questions.

[00:39:34] Speaker 03:
Thank you.

[00:39:34] Speaker 03:
Mr. Solomon, Mr. Toronto will give you two minutes for a rebuttal.

[00:39:43] Speaker 04:
Can I just circle back to a couple issues?

[00:39:48] Speaker 04:
The first is that I think it's important to note that the government concedes ongoing injury, that that is what its concession and discourse regarding movement means.

[00:40:01] Speaker 04:
And this is unlike city of Mesquite, this is not a case about the occurrence of an injury.

[00:40:05] Speaker 04:
This has to do with the government's ongoing authorization

[00:40:09] Speaker 04:
for others to continue speaking on customized postage, including political mass.

[00:40:14] Speaker 04:
And that is why.

[00:40:15] Speaker 00:
But it's not ongoing.

[00:40:17] Speaker 00:
I thought you agreed because you're not injured if it's just sitting in people's drawers as a collection item or they're using it to line their kitchen drawers or something like that.

[00:40:28] Speaker 00:
I thought it was only, I thought you said it was only an injury if it is then,

[00:40:33] Speaker 00:
used to go through, if it actually goes through the meta.

[00:40:37] Speaker 04:
That is not our position.

[00:40:39] Speaker 04:
Our position is that the government's continuing authorization, which allows people who have it sitting in desk drawers to use it at some point that is up to them, that is the ongoing.

[00:40:50] Speaker 00:
Well, I thought you said the opposite to Judge Bousen's hypothetical about collector items.

[00:40:55] Speaker 04:
Well, in any case, I'm glad I circled that one.

[00:40:58] Speaker 06:
I want to see how you dismiss

[00:41:00] Speaker 06:
City of Mesquite, because Footnote is talking about situations where the likelihood of further violations is sufficiently remote.

[00:41:08] Speaker 06:
That's exactly what you're talking about here.

[00:41:10] Speaker 06:
The future violations that you're concerned about, those who have given permission your client wasn't, those people will be able to continue to use stamps that they should have gotten.

[00:41:22] Speaker 06:
That is a further violation.

[00:41:24] Speaker 06:
And City of Mesquite says if the district court finds that that's sufficiently remote,

[00:41:31] Speaker 06:
You can't, I don't see how you can dismiss that.

[00:41:34] Speaker 06:
I mean, and it's not a, it's a perfectly reasonable notion.

[00:41:38] Speaker 06:
And especially if there's going to be a problem trying to determine who these people are.

[00:41:42] Speaker 06:
I mean, that's what the court was saying in that case.

[00:41:45] Speaker 06:
Not moot, but when it goes back, you still may end up.

[00:41:48] Speaker 06:
That's exactly the situation.

[00:41:50] Speaker 06:
Not moot goes back.

[00:41:52] Speaker 06:
There may be some continuing violation, but if the district court finds this sufficiently remote, we're not going to say that there has to be a specific injunctive relief.

[00:42:02] Speaker 04:
I think the distinction I would make is between other people's actual use of the customized postage that they have and the government's continuing

[00:42:12] Speaker 04:
permission for them to do so.

[00:42:14] Speaker 04:
And this court's prior opinion, I thought, was wonderfully clear on the idea.

[00:42:18] Speaker 04:
As the court said, the past is not dead.

[00:42:21] Speaker 04:
It's not even past.

[00:42:22] Speaker 04:
Nothing has changed between the last time this court heard basically the same argument from the government.

[00:42:30] Speaker 00:
The program has been shut down.

[00:42:31] Speaker 06:
The program has been shut down.

[00:42:33] Speaker 06:
It changed because we were wondering whether we were going to get the case out before the program was shut down and whether the moot and sprinkler would be entirely different.

[00:42:41] Speaker 04:
I don't think the program as a whole being shut down makes any difference because the last time this court heard the case, Zazzle's relationship with USPS and its ability to make customized postage had already been terminated.

[00:42:54] Speaker 04:
As applied viewpoint discrimination claim,

[00:42:57] Speaker 04:
This is not a facial challenge, and that's a very important distinction with the likelihood of recurrence cases.

[00:43:01] Speaker 04:
We're not saying that we think the Postal Service is likely to recreate the program and do exactly the stuff that it did last time.

[00:43:11] Speaker 04:
This is not about bringing back something that it got rid of during the course of litigation.

[00:43:19] Speaker 04:
ongoing effects from prior viewpoint discrimination, that because of the nature of the form, it is a strange form.

[00:43:26] Speaker 04:
It is difficult for USPS to close.

[00:43:30] Speaker 04:
It is difficult for USPS to cure our injury except by granting our postage.

[00:43:35] Speaker 04:
Because that is so easy and because the alternative is so difficult, we think granting our postage is the clear route.

[00:43:44] Speaker 03:
Thank you, counsel.

[00:43:45] Speaker 03:
Thank you to both counsel.

[00:43:46] Speaker 03:
We'll take this case under submission.