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Case number 21-5219, Chung-Chi Esquire Fixed Alcoals Limited et al.

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et al.

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versus Gina Raimondo, Secretary of Commerce et al.

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Mr. Tice for the et al.

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Mr. Aguilar for the et al.

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May it please the court.

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All parties agree that under the Export Control Reform Act of 2018,

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Congress directed defendants to establish and maintain a specific list, the Entity List, pursuant to the goal of addressing five extraordinarily serious national security and foreign policy threats.

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The question presented is whether the government can expand its Entity List authority by means of a catch-all provision found in subsection 4813A16, and thus add entities for reasons beyond the five Congress selected.

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The answer is no.

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This court has held repeatedly, including in the 1995 decision in American Petroleum Institute, that an agency may not rely on its general authority in a specific statutory directive that finds its relevant function in a particular area.

[00:01:11] Speaker 01:
That's exactly- Even where Congress has directly ratified the agency's rulemaking during the interim period,

[00:01:20] Speaker 03:
Well, Your Honor, I assume you're referring to section 4826A, and I don't think that is a case of ratification of any rule with respect to the grounds upon which my client, Jen Giaskell, was listed.

[00:01:35] Speaker 01:
Well, to the extent it's saying that the agency had authority to issue those rules, isn't that significant, given the statutory provision that

[00:01:48] Speaker 01:
I know you don't want to rely on, but could you say it's a catch-all under your canon of the specific trumps the general?

[00:01:58] Speaker 03:
Well, Your Honor, just to be clear, the provision that carried forward all existing regulations did so only according to those regulations terms.

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And at the time, there's no dispute about this, at the time of the Reform Act of 2018, no entities had been listed for human rights violations.

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And the specific regulation in question, I think it's 26 CFR 74411, does not list human rights as one of the grounds for adding entities to the entity list.

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It lists adding entities for national security and foreign policy threats.

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And traditionally, until essentially the Trump administration, the grounds for adding entities to the entity list were

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those same serious national security and foreign policy concerns, weapons of mass destruction, terrorism, weapons proliferation, and those sorts of things.

[00:02:55] Speaker 07:
Now, it is true that- Do you dispute that they could, that they have the authority to create another list under this statutory scheme?

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They wanted to call this the human rights violations that impede foreign policy list.

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that they would have the statutory authority to do that.

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Do you dispute that?

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I think they would likely have that authority, Your Honor.

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How would you text?

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Why isn't it?

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You say likely.

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So what's your qualification?

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Well, because the statute doesn't say there's only one list allowed.

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Well, correct.

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I would say that there is an argument, I think, under the Expresio Unius canon that the fact that the statute directs them to make a list pursuant to this purpose.

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But it only has five things, whereas, I've got my numbers right, 4811 lists a lot of things, including human rights abuses as something that is to be enforced by the statute.

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So I think that may likely kill off any Expresio Unius argument.

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cement to be enforced.

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There's references to this being enforced under the statute.

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And so if they could create another list, wouldn't be the, we're not going to put you on the same list as the five really, really bad things.

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I don't know how you compare these things.

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They seem incomparable.

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But if they have the human rights violations that impede foreign policy lists, you have anything

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Do you have anything else to tell me that would say they can't do that under the statute?

[00:04:27] Speaker 03:
Well, like I said, that's why I think they probably do have the authority on it.

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I don't think it suggests that what they've done here is legal.

[00:04:37] Speaker 07:
But if they have the authority to create the second list, then your ultra virae's argument has to come down to, is it clear under this statute?

[00:04:53] Speaker 07:
it has to be a separate could that separate list impose the exact same types of sanctions as the first list again probably nothing is right so it could do exactly the same thing it's just called the human rights abusers list i don't think anyone would want to be on that list for the given that title but they'd have that so it's going to have the exact same consequences exact same operation

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for them no other exact same impact on their business and they'll be labeled a human rights abuser, ex-company, ex-company will be labeled a human rights abuser and get on that list with very, very notorious entities.

[00:05:31] Speaker 07:
And so if that's true, if we take that as true, you don't seem to be pushing back that hard on it, then the ultra viris distinction would be

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They just didn't, they can't combine it into a single list.

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That's the question before us.

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I don't think that's exactly right.

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Your honor.

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And like I said, I think even if they have an authority, it does not actually suggest what they did here is legal for two reasons.

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One of them is even if to take your hypothetical as it stands, obviously this is not what they did, but hypothetically if they had made a list of the exact same legal consequences, that would not change the fact that there are significant and discrete special reputational and practical consequences.

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at this list over a 25 year period has built up.

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This list was established in 1997.

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I don't know.

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I'm not sure the reputational consequences would be meaningfully less if you're put on the list of human rights abusers and let's say in company of

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X, Y, and Z country, it's notorious for that.

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I suspect a company would be complaining just as much about reputational, because you're on an export list, a red flag by the government.

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And so what in the statute, given the standard for an Altavira's challenge makes clear that the problem here is they can't have one list.

[00:06:58] Speaker 03:
Well, I think we're looking at the authority that Congress granted to the agencies, which are, of course, creatures of statute.

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And in this section, in very specific and clear language, said, establish and maintain this list pursuant to these five specific policies.

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So even if they did have the authority to create other lists, that would not change the fact that Congress did not grant them the authority to create a list

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pursuant to that directive, that includes these other statutory commands.

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And I think it's important to think about the history.

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What textually says that that list must stop with those five things?

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I mean, it has to certainly include those five things.

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Those are required.

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Textually, what tells us the standard of Ultra Vera's review, that it can include nothing other.

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You have to start a different one.

[00:07:54] Speaker 03:
Well, I'd like to talk about specific textual clues, I think, that show us.

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But first, if I can answer the question by saying that is the same situation as in the American Petroleum Institute case.

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This court held that the agency tried to argue that Congress's directive to follow a certain policy did not preclude them from following additional policies that were subordinate to that primary one.

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And the court said, Congress does not have to speak in thou shalt not terms in order to create an ambiguity if Congress creates a clear and specific direction.

[00:08:28] Speaker 07:
Is that an ultra-virus review case?

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That, Your Honor, was an APA case.

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So I think the difficulty for you may be that to survive, establish an ultra-virus case, don't you have to point to a thou shalt not?

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I don't think so, Your Honor.

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I don't think so.

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And I think I can give you a few different examples, but I think the aid association for Lutheran's case is a good one.

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I think that one really sets the standard of review in a situation like this.

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And it basically equates, in an ultra-virus case, the standard of review to

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The situation in Chevron, step one, be it Congress.

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That can't be right.

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Then the preclusion provision has zero effect.

[00:09:07] Speaker 03:
Well, it does have significant effect, Your Honor.

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It precludes the review of functions exercised under the APA.

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And as the Dart case made clear, Ultra Veras claims not fall within that.

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And in fact, things that exceed the statutory authority of the agency.

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Then we're reviewing the agency's

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interpretation of this scheme and how the two provisions fit together exactly the same way we would be if we had APA review, which is Chevron reason.

[00:09:41] Speaker 03:
Well, the Chevron, you know, of course, ultra various claims predated the APA as the dark case held and as the association for Lutheran held.

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So I don't think that's necessarily anomalous.

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I do take the point that it's a narrower form of review because it's not

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for substantial evidence, it's not arbitrary and capricious.

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But I don't think, like I said, the aid association for Lutheran's case by its terms makes clear that the review is essentially equivalent to Chevron step one.

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And the reason is that if Congress has spoken clearly and unambiguously to the question at issue and the agency goes a different way, that's the same thing as disregarding an unambiguous directive or violating a specific statutory command.

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Congress has unambiguously spoken, the agency has done something different.

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So I don't think it's dramatically different, it's different at all,

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from the Chevron Step 1.

[00:10:29] Speaker 03:
But to get to your point, Judge Millett, with respect to how this operates in a ultra-various context, unfortunately, I did not cite this case in my brief.

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I did share a copy of it with the opposing counsel, and I have copies of the court if you'd like.

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But it's a 2012 decision, Northern Air Cargo, the United States Postal Service.

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It's at 674 F-3852.

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And I'm happy, as I said, I'm happy to bring a copy up to you if you like.

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But in that situation, the court was faced with what I believe is a situation that is equivalent to the one we're facing here, which is that the agency never grappled with the statutory language.

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This was an ultra-various claim against the agency outside of the APA where APA review was precluded.

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And what the court said was where the agency had made no attempt to parse or reconcile the statutory language.

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In that case, it deemed that language ambiguous.

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It said you can only uphold the agency's action on the basis of a contemporary justification by the agency itself, not a post hoc explanation.

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So it both rejected

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The application of Chevron deference in that case, and in fact found that the action could not be upheld and ultimately remanded the case to the agency in that circumstance.

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So I think that is the sort of ultra various review that we suggest would apply here.

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It's if the court were to find the language ambiguous, then the.

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it would not simply uphold what the agency did, but would either parse the language itself or remand to the agency, ultimately at the end of the litigation in this case.

[00:12:10] Speaker 01:
Now, of course, I think you make a good argument on the ratification, but I wonder if your case turns on the standard of review, then what do you do with our decision in DART?

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Because we acknowledge, do we not elsewhere that

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ultra-virus review in these postal cases is a little different.

[00:12:36] Speaker 03:
That might be right, Your Honor.

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And again, I take the point that this court's case law has acknowledged that ultra-virus review is a narrower form of review.

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But again, I would point you to eight associations for Lutherans, which I think points in the right direction.

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On the question of whether or not the

[00:12:58] Speaker 01:
Yes, I understand that, but what about our DART decision?

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Weren't we fairly clear there or help me distinguish it?

[00:13:08] Speaker 03:
Well, I think what the DART decision said, and it's actually an analogous case because it was decided with respect to the Export Administration Act, which is the predecessor to the Reform Act.

[00:13:21] Speaker 03:
In that case, the court said, confirmed, that Ultra Vera's review is available.

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And it found, in fact, in that case, that there was a clear violation of the statute

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And the reason why it found a clear violation of the statute was I believe the statute had said that the agency may affirm, modify, or vacate, but the agency reversed.

[00:13:45] Speaker 01:
Well, what would you do then with the statute here and the specific provisions in, what is it, 50 USC 4811 subpart or number two?

[00:14:04] Speaker 03:
Yeah, well, let me, if I may, I think it would be helpful if I talked briefly about 4813A and the language that that provision uses and why we think this does create a clear and unambiguous directive to the agency to carry, to do a certain action and the agency has wanted that action.

[00:14:20] Speaker 01:
So in other words, you think that basically qualifies the authority that was delegated under...

[00:14:30] Speaker 03:
Well, it does, Your Honor.

[00:14:32] Speaker 03:
4813A2, that's the provision that we've been focusing on.

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It tells the agency to establish and maintain a list pursuant to a certain policy.

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Those are the five most egregious national security violations.

[00:14:43] Speaker 03:
I take the point that human rights is also an egregious violation, but Congress is the one that gets to choose the policy.

[00:14:52] Speaker 03:
Section A2 is what we focus on.

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If you look at A1, it also requires the agency to establish and maintain a list

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but not pursuant to any particular subsection.

[00:15:01] Speaker 03:
Either way, this is an addendum five to our brief if you want to look.

[00:15:05] Speaker 03:
So it says A1, establish and maintain a list of items without saying pursuant to a certain policy.

[00:15:09] Speaker 03:
It's just establish and maintain a list.

[00:15:12] Speaker 07:
Which supports the more than one list theory.

[00:15:14] Speaker 07:
It does, you're right.

[00:15:15] Speaker 03:
It supports the more than one list.

[00:15:18] Speaker 07:
And 4812 is crystal clear that they have to carry out the policy set forth in paragraphs one through 10.

[00:15:24] Speaker 03:
In 4811.

[00:15:27] Speaker 07:
Sorry, there's too many numbers here.

[00:15:28] Speaker 07:
4812A and B both require, authorize and require the agency to carry out the policies articulated in 48111 through 10.

[00:15:39] Speaker 07:
I get that your point in 4813 references 4112A, but 4812A and certainly B require full enforcement of everything in that 1 to 10 list, which includes human rights files.

[00:15:54] Speaker 07:
So you're saying that's done under 14813A1 rather than 14813A2?

[00:15:59] Speaker 03:
Well, not necessarily, honor.

[00:16:01] Speaker 03:
4812, I think, in particular, is a delegation of authority to the president.

[00:16:05] Speaker 03:
They do not rely on the 4812 authority.

[00:16:07] Speaker 03:
They relied on the 4813 authority here.

[00:16:09] Speaker 03:
And so I think that, so again, whether or not the agency has the power to propagate.

[00:16:16] Speaker 07:
Well, the 4812 is part of what they do and is it not, because it includes

[00:16:22] Speaker 07:
the explosive devices, missiles, chemicals, biological weapons, nuclear projects, foreign military intelligence, and all that.

[00:16:32] Speaker 03:
I guess I'm looking, are you looking at 4811-2?

[00:16:35] Speaker 07:
Oh, 4812-A.

[00:16:36] Speaker 07:
Yeah.

[00:16:41] Speaker 07:
Because- It's not exactly identical.

[00:16:45] Speaker 07:
It's just, I'm not quite understanding per year, even if we call it a Chevron step one argument,

[00:16:52] Speaker 07:
how it's so crystal clear that the list must be separate.

[00:17:00] Speaker 07:
There's supposed to be a list, even under your theory in 4813A1, that enforces everything else.

[00:17:07] Speaker 07:
And you want to say 4813A2, that has to be a separate list.

[00:17:11] Speaker 07:
freestanding list.

[00:17:12] Speaker 07:
Is that what the argument comes down to?

[00:17:14] Speaker 03:
Well, I think it does not necessarily come down to that argument, but I will support it in this respect.

[00:17:20] Speaker 03:
Again, 48, the entity list is a list that long predated, has a history and existence that long predated the Reform Act.

[00:17:27] Speaker 03:
We assume that when Congress enact statutes like this, it does so against the backdrop.

[00:17:31] Speaker 03:
I don't think there's any dispute that 48

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13A2 is the authority for the entity list in this particular case, which was a discrete and pre-existing list.

[00:17:41] Speaker 03:
And so that's response page 25.

[00:17:44] Speaker 03:
And the government says that that is the authority for the entity.

[00:17:47] Speaker 07:
We're in an ultra various posture and a preliminary injunction posture at the same time.

[00:17:51] Speaker 07:
And if there's no dispute that they get to just as vigorously enforce and through the same mechanisms enforce those who engage in foreign and human rights violations that impede foreign policy.

[00:18:04] Speaker 07:
and they get to do it by having a list that I guess that we keep coming back down to whether there could be, your argument is I can't, well, whatever list it is, it can't be this 4813A2 list.

[00:18:18] Speaker 07:
It has to be a separate list.

[00:18:21] Speaker 07:
That's the Chevron step one under your theory or Eldre Veri's playing on the absolutely plain and clear violation of law that we would have to find.

[00:18:30] Speaker 07:
And there's nothing ambiguous in your view about whether it has to be one or two lists.

[00:18:33] Speaker 03:
I don't think it's ambiguous, your honor.

[00:18:35] Speaker 03:
It says establish and maintain a list.

[00:18:37] Speaker 03:
There are other provisions in the statute that provide for additional lists.

[00:18:40] Speaker 03:
And so they might have authority to do different things.

[00:18:42] Speaker 07:
It doesn't say an additional list.

[00:18:43] Speaker 07:
It says have a list for this, have a list for that.

[00:18:46] Speaker 07:
Well, again, I think- Tell my husband to have a list for groceries and have a list for errands.

[00:18:50] Speaker 07:
If he puts them on a single list, I'm content as long as it gets them well done.

[00:18:53] Speaker 03:
Well, but that is obviously what you can tell your son is different from what you can tell what the government tells agencies, which are creatures of statute.

[00:19:01] Speaker 03:
And again, if you look at the API case and the ethical case, both of them are very similar in the sense that Congress didn't say do this, but don't do this just gave a specific directive to the agency.

[00:19:14] Speaker 03:
And the court, this court held on multiple occasions in those cases and many others that when it does so, the agency is supposed to listen to that directive and it may not do, it may not, you know, um, create a list that includes other things.

[00:19:26] Speaker 07:
It could separately do that, but for purposes of a rep rule, sorry, finish your sentence.

[00:19:32] Speaker 03:
It didn't work to do that.

[00:19:34] Speaker 03:
And I finished with that.

[00:19:35] Speaker 03:
Well, I guess the other point thing I would point to your honor, which I think shows why this is clear and unambiguous is that, uh, both a three and a five use the word including.

[00:19:43] Speaker 03:
which I think is notably missing from A2.

[00:19:46] Speaker 03:
Both of them say, prohibit unauthorized exports, including to foreign persons in the United States or outside the United States.

[00:19:52] Speaker 03:
A5 says, require licenses of controlled items, including to, under these certain conditions.

[00:19:57] Speaker 03:
I think that language is notably absent from the very next door provision, A2, which does not use that including language.

[00:20:04] Speaker 03:
So I think that cuts against the reading, that this is simply a minimum.

[00:20:07] Speaker 03:
It can create a list with that and anything else they want.

[00:20:10] Speaker 03:
I think you can't read that.

[00:20:12] Speaker 03:
Well, I just think that the clear way to read that language is establish a list that includes the five most serious national security threats.

[00:20:20] Speaker 07:
Well, I don't think it said most serious.

[00:20:22] Speaker 07:
It just said for that list.

[00:20:24] Speaker 07:
If we assume you're right that the misstep here was that they combined two lists rather than having a separate one.

[00:20:32] Speaker 07:
And so then the question would be they can list you and they can impose your client the exact same sanctions.

[00:20:39] Speaker 07:
And I can't imagine it's good for business to have beyond

[00:20:42] Speaker 07:
a human rights abuser list as opposed to this list.

[00:20:49] Speaker 07:
How would the injury, irreparable injury, be any different?

[00:20:52] Speaker 03:
Well, Your Honor, I think there's a serious question about whether the government would relist us in that circumstance.

[00:20:58] Speaker 03:
If you were to find that this list, this language is clear enough and ambiguous, the way to read this is Congress said, created a list with these policies and they added a sixth unenumerated one.

[00:21:07] Speaker 03:
Then I think there's a serious question about whether on remand the government would re-add us to it.

[00:21:13] Speaker 07:
I'm not, I'm just, I'm just asking, let me try the question again.

[00:21:18] Speaker 07:
Would your injuries, your asserted irreparable injuries

[00:21:23] Speaker 07:
be any less or any any less irreparable or just any less injurious if they had done what you were saying the statute says and had created a separate list.

[00:21:37] Speaker 03:
I do think arguably yes your honor because this is a list with thousands of entities on it many of them or

[00:21:44] Speaker 03:
producing military equipment for weapons of mass destruction and terrorism.

[00:21:47] Speaker 03:
We have been lumped in with nuclear proliferators.

[00:21:50] Speaker 07:
Okay, but all the bands, I thought the economic consequences and bands on business and exports and all of these types of things are gonna be exactly the same.

[00:21:58] Speaker 07:
And the fact that you're on a, that this, that you would be on a bad entity list from the US government and they could issue the same red flag warnings to people.

[00:22:09] Speaker 07:
And you still think,

[00:22:10] Speaker 07:
Wasn't clear to me from your Rep.

[00:22:12] Speaker 07:
Blinger arguments that you'd be any better off.

[00:22:15] Speaker 07:
Maybe you wouldn't like the company better.

[00:22:18] Speaker 07:
I'm not sure.

[00:22:19] Speaker 07:
You'd like the company better?

[00:22:21] Speaker 03:
This goes to the central point that I've been trying to explain, which is that the entity list is a pre-existing list.

[00:22:27] Speaker 03:
It has this history.

[00:22:27] Speaker 03:
It has thousands of entities on it with nuclear weapons.

[00:22:33] Speaker 07:
Yeah, but you'd be the only one on this new human rights abuser list.

[00:22:35] Speaker 07:
That's better.

[00:22:36] Speaker 03:
Well, I think there's a significant question whether they do that, Your Honor, and I can't speak about it in open court because it's under seal, but the condition that the government imposed makes, in my mind, very unlikely that on remand, the government would try to re-add us to a list.

[00:22:52] Speaker 03:
In our view, the government has no evidence, which is consistent with all the evidence that is in the record, with respect to the odious allegations they've leveled against us with regard to their regular accusations.

[00:23:04] Speaker 03:
Does injury count as a...

[00:23:06] Speaker 07:
Does injury count as irreparable?

[00:23:08] Speaker 07:
If the party concedes, it could be subject to those exact same injuries as long as the government just dotted its eyes and crossed its teeth properly.

[00:23:18] Speaker 03:
Well, I think we're here on a preliminary injunction posture.

[00:23:20] Speaker 03:
I mean, first of all, I would not concede that it's the exact same injury.

[00:23:22] Speaker 03:
I think it would be a different sort of injury.

[00:23:23] Speaker 03:
But I also think that the

[00:23:25] Speaker 03:
the fear of some future hypothetical injury, which is not actually the action they took.

[00:23:29] Speaker 03:
They did not justify what they did based on adding us to some combined list of both the entity list plus the human rights abuser list.

[00:23:38] Speaker 03:
So the hypothetical future injury, I think, is just not before the court.

[00:23:41] Speaker 03:
That could be adjudicated in a future preliminary injunction action.

[00:23:44] Speaker 03:
On that point, Your Honor, I think under the sliding scale approach this court has employed and has not abrogated, we need to show a serious angle.

[00:23:52] Speaker 07:
Do you have to have the sliding scale to win?

[00:23:54] Speaker 03:
No, I don't think so.

[00:23:55] Speaker 03:
I think we have to clear an unambiguous reading.

[00:23:57] Speaker 03:
But I think at a minimum, we've shown there's a serious legal question on the merits.

[00:24:00] Speaker 03:
I mean, again,

[00:24:01] Speaker 03:
It's hard to read that language in A2 as doing anything other than create a list, pursue it to these policies, and don't add your own, particularly knowing that Congress legislates against the backdrop of both pre-existing case law and its knowledge of the list, and would therefore be aware of how this court would interpret a clear and specific statutory directive, especially when you compare that language to the surrounding subsections, which does not impose the same limitation on the agency's authority.

[00:24:28] Speaker 03:
Your interpretive

[00:24:30] Speaker 02:
theory, it rests on a very strong conception of expressio unis.

[00:24:41] Speaker 02:
You have a specific provision which says, create a list pursuant to the following considerations, and there's a consideration

[00:24:54] Speaker 02:
there's an additional consideration and the government is relying on some more general authority.

[00:24:58] Speaker 02:
And you say, they just can't do that, period, full stop.

[00:25:03] Speaker 02:
But we have a lot of cases in the Chevron context which say that Expressio Unias is a feeble helper in the ad law context.

[00:25:18] Speaker 02:
And you have cases where the government's won in this kind of situation.

[00:25:24] Speaker 02:
Sure, there are a lot of cases on the feeble helper rationale where, sorry, where you've won.

[00:25:30] Speaker 02:
There are a lot of cases where the government wins on the ground that the Expressio Unias inference is not strong enough to preclude the government from resorting to the more general authority.

[00:25:46] Speaker 02:
So how do you reconcile?

[00:25:47] Speaker 02:
I mean, if it's a feeble helper and a debatable point,

[00:25:54] Speaker 02:
isn't that fatal on on statutory in a non statutory.

[00:26:02] Speaker 02:
Review context.

[00:26:03] Speaker 03:
I don't think so your honor.

[00:26:05] Speaker 03:
I don't for several reasons.

[00:26:07] Speaker 03:
One of them is that it's people help or the court has said in a few context, but it's also said.

[00:26:13] Speaker 03:
It depends on the statutory language in the context.

[00:26:16] Speaker 03:
So, for example, the case that my friend on the other side cites, the Farrell Blinken case, it was a people helper in that case because the authority that was granted to the agency, they weren't going to impose a limitation found in other subsections, but not in that one.

[00:26:31] Speaker 03:
That's very different from what we have here, where we're pointing to a list

[00:26:34] Speaker 03:
that Congress has directed pursuant to five specific and only five specific goals.

[00:26:39] Speaker 03:
So I think that shows that it depends on the context.

[00:26:44] Speaker 03:
I think we also have the specific in general canon, your honor, which I think is equally strong.

[00:26:48] Speaker 02:
I mean, these are all variations on the same theme, right?

[00:26:53] Speaker 02:
Specific general superfluity, right?

[00:26:56] Speaker 02:
Just depends on how you think of the interaction between

[00:27:01] Speaker 02:
a two and a sixteen right, but I think it's very this court in very strong terms.

[00:27:06] Speaker 03:
And I think we've the two of the two of the best cases we've cited are the API case in the in the ethical case in the API case that Congress directed the agency to regulate gasoline to create the greatest reduction in emissions of ozone forming volatile compounds as well as certain subordinate goals, such as energy requirements.

[00:27:24] Speaker 03:
What the EPA did was create a rule that required certain use of ethanol, even though that might not reduce emissions from involved compounds.

[00:27:32] Speaker 03:
And it relied on its general authority.

[00:27:34] Speaker 03:
It said under both the EPA's general grants, the Clean Air Act's general grant of authority, which allows us to promulgate rules necessary to carry out the functions of this chapter, as well as a specific provision granting them regulatory authority in that section.

[00:27:50] Speaker 03:
Uh, they said, well, we have the authority to, you know, focus on other goals besides just emissions reduction or in addition to emissions reduction.

[00:27:57] Speaker ?:
Okay.

[00:27:57] Speaker 03:
Not a floor or it's not a ceiling.

[00:27:59] Speaker 03:
It's a floor.

[00:28:00] Speaker 03:
They said, and.

[00:28:01] Speaker 03:
This court, very clearly, EPA cannot rely on its general authority to make rules necessary to carry out its functions, given the specific statutory directive that defined the relevant functions.

[00:28:12] Speaker 03:
And that's the same situation here.

[00:28:13] Speaker 03:
When Congress has been as clear as it is, and if you look at it in context, too, there's 15 different actions Congress has required the agency to carry out.

[00:28:22] Speaker 03:
And then an A-16 says, and any other action, any other action that you want to carry out.

[00:28:28] Speaker 03:
It's very detailed about what it wanted to do.

[00:28:29] Speaker 03:
And in some of those sections, it said, do it pursuant to a specific policy.

[00:28:33] Speaker 03:
And some of them, it said, do it to all the policies in there.

[00:28:36] Speaker 03:
But I think when you read that language in context, it does become clear that this is not a situation where we're looking at other statutes, other provisions elsewhere to try to gin up a expresio unius argument.

[00:28:50] Speaker 03:
It's clear from the very face of the language that Congress.

[00:28:53] Speaker 02:
Just one more question on interpretive

[00:28:58] Speaker 02:
principles.

[00:28:58] Speaker 02:
Another one which might be relevant here, government, I don't think invoke this and I'm not sure why, but here's a presumption that when statutes govern the president's exercise foreign policy, they are in cases of ambiguity, they are construed not to constrain the president's discretion.

[00:29:26] Speaker 02:
Wouldn't that

[00:29:28] Speaker 02:
have a lot of sway here when we're talking about how to manage export restrictions on human rights abusers broad.

[00:29:37] Speaker 03:
Well, I don't think so your honor, and I think the reason is really the legislative history in this case and by that I mean that

[00:29:43] Speaker 03:
The way that statutory history, statutory history, exactly the way the Reform Act came into being.

[00:29:49] Speaker 03:
Originally, this these sorts of regulations were under the Export Administration Act.

[00:29:54] Speaker 03:
After that, the authority in that statute lapsed.

[00:29:56] Speaker 03:
The president's continued the export control regulations under the authority of IEPA, which, as you know, is a very broad, broad executive authority to deal with national security and foreign policy.

[00:30:09] Speaker 03:
In 2018, Congress overhauled that regime by placing these regulations on a new statutory footing.

[00:30:16] Speaker 03:
And when it did so, it imposed certain restrictions in certain places.

[00:30:20] Speaker 03:
It gave specific directives about what it wanted the agency to do on a going forward basis.

[00:30:25] Speaker 03:
And the agency's response to that with respect to the entity list was to completely ignore it.

[00:30:31] Speaker 03:
It did not continue to do business as usual.

[00:30:34] Speaker 03:
It simply continued the exact same trajectory it had already done where it was expanding

[00:30:38] Speaker 03:
the grounds for the entity list.

[00:30:40] Speaker 03:
It has never engaged outside of this litigation.

[00:30:42] Speaker 03:
Certainly the government has not pointed to anything.

[00:30:44] Speaker 03:
It has never engaged outside of this litigation with whether or not there is any limitation imposed on that at all.

[00:30:53] Speaker 03:
The floor or minimum theory that the government advances is a litigation theory.

[00:30:58] Speaker 03:
It is not one that the agency has undertaken at any time prior to this case.

[00:31:06] Speaker 03:
Happy to answer any other questions or reserve the balance of my time.

[00:31:13] Speaker 06:
Thank you.

[00:31:42] Speaker 04:
I am pleased to support Daniel Aguilar for the federal defendants.

[00:31:46] Speaker 04:
So Congress enacted the Export Control Reform Act here to enhance the executive's ability to use export controls to protect national security and foreign policy.

[00:31:55] Speaker 04:
And it explicitly ratified all previous actions that the executive branch had taken to further that.

[00:32:02] Speaker 04:
That includes the federal registered notices we cited explaining that

[00:32:06] Speaker 04:
we can add entities to the entity list when they act contrary to our foreign policy interests, including violation of human rights.

[00:32:15] Speaker 04:
And it included the civil designations that we made of Russian entities for a variety of reasons, including acting contrary to our foreign policy interests in taking Crimea from Ukraine, interfering in the United States elections, et cetera.

[00:32:27] Speaker 02:
Sorry, had there been entities, I should know this and I'm just blanking, had there been entities added to the list

[00:32:36] Speaker 02:
just for human rights violations prior to the amendment?

[00:32:41] Speaker 02:
No, Your Honor, not specifically for human rights.

[00:32:54] Speaker 04:
The format, what Congress did was it provided us with a comprehensive sentence of authority to safeguard the country

[00:33:04] Speaker 04:
But then, contrary to Commerce Departments and the Executive Branch's longstanding understanding of its own authority, it said you cannot add entities to the list.

[00:33:13] Speaker 02:
You have rules, orders, and determinations.

[00:33:18] Speaker 02:
And determinations are interpretive positions in the air.

[00:33:22] Speaker 04:
And quoting from 50 U.S.C.

[00:33:26] Speaker 04:
4826A, and it also says four other forms of administrative action.

[00:33:30] Speaker 04:
I mean, Congress here was pretty broad in saying that we are ratifying and confirming the executive branch's understanding of its own.

[00:33:38] Speaker 02:
Yeah, though you might read this to require agency action as opposed to just an expressed view, I'm not sure.

[00:33:47] Speaker 04:
And that's why, Your Honor, we were also pointing to the actions where we had listed entities acting contrary to our foreign policy interests.

[00:33:55] Speaker 04:
Excuse me, when Russ invaded

[00:33:56] Speaker 07:
of Crimea and when Russia took actions that were contrary for interests in spreading... So Congress didn't have any experience, concrete experience that it would have been aware of, of someone being listed just for human rights, asserted human rights violations?

[00:34:10] Speaker 07:
I'm sorry, you don't have any... The Congress didn't have, you hadn't, I thought you said and made me clarify, if I misunderstood your answer, prior to the statute being enacted, the commerce hadn't or the federal government had not

[00:34:24] Speaker 07:
listed someone just for human rights violations?

[00:34:27] Speaker 04:
No, Your Honor.

[00:34:28] Speaker 04:
We took that action here.

[00:34:29] Speaker 04:
But we had expressed our understanding that this is the authority that we generally have.

[00:34:33] Speaker 04:
And you had expressed that where?

[00:34:35] Speaker 04:
We had expressed it in the Federal Register notices.

[00:34:37] Speaker 04:
I believe that we said that at the beginning of our brief starting in about 2012.

[00:34:40] Speaker 04:
Okay.

[00:34:41] Speaker 04:
And then we had consented.

[00:34:42] Speaker 07:
But it hadn't yet been applied.

[00:34:43] Speaker 07:
So Weber had never met the road in this regard.

[00:34:46] Speaker 04:
I suppose it's true, Your Honor.

[00:34:47] Speaker 07:
But I think, you know, again, since... Oh, finish your sentence.

[00:34:50] Speaker 04:
Oh, sure.

[00:34:50] Speaker 04:
But again, I think as you noted, we're here

[00:34:54] Speaker 04:
In a particular strange circumstances isn't here on APA review about trying to parse out the particular delineations of the reticulated authority here.

[00:35:03] Speaker 04:
We're here on non statutory ultraviaries review where opposing counsel is seeking a preliminary injunction to take an entity

[00:35:11] Speaker 04:
off of the entity list to not subject them to our export controls when the United States has made a determination that they're acting contrary to our foreign policy interests.

[00:35:21] Speaker 07:
So we talked about before the 2018 act, since the 2018 act, up to this listing, and I know that there were, I guess, 10 other entities that were listed with them, but between 2018 and this listing,

[00:35:35] Speaker 07:
had someone who engaged in human rights violations enlisted or asserted human rights violations been listed solely just for that.

[00:35:44] Speaker 04:
Contemporaneously, we listed other entities.

[00:35:47] Speaker 07:
Not contemporaneously.

[00:35:48] Speaker 04:
I know that there were 11... You're talking about between 2018 and this listing.

[00:35:52] Speaker 07:
And this listing, yes.

[00:35:53] Speaker 07:
I'm sorry, I wasn't clear.

[00:35:53] Speaker 07:
So once the statutes enact, since the enactment of the statute in 2018, whatever date that was, and the listing that they are challenging, at least for their name now, in that interval, were there any human rights abuse listed?

[00:36:08] Speaker 04:
Not that I'm aware of.

[00:36:10] Speaker 07:
So this is the first time in history

[00:36:14] Speaker 07:
of these types of export controls that someone has been put on the entity list for asserted human rights violations alone.

[00:36:21] Speaker 04:
It was about a two year span in between those.

[00:36:24] Speaker 04:
So yes, after two years after the act, this was never happened until now.

[00:36:29] Speaker 04:
No, but again, it's not limited to human rights violations, right?

[00:36:34] Speaker 04:
As I understand their theory, it is that we are limited in placing entities onto the entity list solely for what's described in 4811 2A.

[00:36:43] Speaker 04:
So, if you take, for example, the policy interest that Congress identified in 2B, if somebody threatens the qualitative military superiority of the United States, we cannot place them on the entity list for that reason.

[00:36:56] Speaker 04:
Or if you look at 2E, our ability to sustain and fulfill international obligations.

[00:37:02] Speaker 04:
We cannot place an entity on the entity list if they threaten or act contrary for our ability to do that.

[00:37:08] Speaker 04:
We can't use the export controls against them for that reason.

[00:37:10] Speaker 07:
You can have as many lists as you want.

[00:37:12] Speaker 07:
You could have the entity list, and you could have the entity part B list, entity prime list, and list everybody there.

[00:37:20] Speaker 07:
I don't understand how that would impair.

[00:37:23] Speaker 07:
At least for me, at this level of review that we're doing, we're not digging in, as you rightly pointed out, any more deeply than filter varies review.

[00:37:32] Speaker 07:
It seems to me that you've got a pretty sound argument that you could have other lists, but this is the worst of the worst list, I guess, is what they would say.

[00:37:45] Speaker 07:
This is the notorious list.

[00:37:47] Speaker 07:
So it's not that they're tying your hands.

[00:37:49] Speaker 07:
It's just Congress said, look, here are the things, the five things that, in fact, they took the time to say these are the five, I'm putting words in Congress's mouth here, but it seemed to be worst of the worst in that they are,

[00:38:01] Speaker 07:
existential threats to the United States, those types of violations.

[00:38:08] Speaker 07:
That's that list.

[00:38:10] Speaker 07:
It's like the FBI, you know, top 10 most wanted.

[00:38:13] Speaker 07:
Doesn't mean we don't want everyone else, but these are the top 10.

[00:38:17] Speaker 07:
And then you can have your other list and you can label it however you want.

[00:38:21] Speaker 07:
You can do every single thing to punish them that you're doing here.

[00:38:26] Speaker 07:
But it's just not how this list has been used.

[00:38:29] Speaker 07:
Certainly at the time Congress acted, they weren't thinking of this as a human rights list.

[00:38:33] Speaker 07:
If they were thinking of it as a human rights abuse list, why would they say for purposes of 2A or 112A?

[00:38:40] Speaker 04:
So getting to that, I think that's the fundamental difference between our respective statutory constructions.

[00:38:45] Speaker 04:
We read this as Congress saying.

[00:38:46] Speaker 04:
So for example, in 4813A, it says, create a list of items for control.

[00:38:52] Speaker 04:
So that includes weapons.

[00:38:53] Speaker 04:
It includes various types of technology, gases, et cetera.

[00:38:57] Speaker 04:
And so Congress said, look, we don't know particularly what kinds of items should be on this list.

[00:39:02] Speaker 04:
Please use your discretion.

[00:39:04] Speaker 04:
Or the next subsection two, it then says, create an entity list or we know that you already have one and be sure at a minimum that it needs to contain these particular types of activities.

[00:39:16] Speaker 07:
Terrorism didn't say at a minimum as you're reading, but yes, I'm sorry.

[00:39:20] Speaker 07:
I have a list that includes these five.

[00:39:23] Speaker 04:
Yes, it says you need to have a list.

[00:39:25] Speaker 04:
It needs to if you determine that any must have a list that includes these five.

[00:39:29] Speaker 04:
Yes.

[00:39:30] Speaker 04:
And then it's not limiting that authority.

[00:39:33] Speaker 04:
It's not saying you cannot have other reasons to use the export controls to require a license before doing this.

[00:39:40] Speaker 04:
And again, the entity list is a creature of regulation.

[00:39:43] Speaker 04:
It's a creature of long standing regulation.

[00:39:44] Speaker 04:
Congress didn't specify in 4813 that there is such a thing called the entity list and it must be constricted only to these things indeed.

[00:39:53] Speaker 04:
And subsection 16 of that, what Congress says is, and you shall undertake any other action necessary to safeguard our policy objectives that we've identified that is not otherwise prohibited.

[00:40:07] Speaker 04:
And that's a very broad branch of authority.

[00:40:08] Speaker 04:
And what Congress said in the purposes section of the Reform Act in 4811 is it says, these are the purposes for the export control.

[00:40:16] Speaker 04:
And then the last section there, I believe it's paragraph 11 says,

[00:40:19] Speaker 04:
You can't go beyond this.

[00:40:21] Speaker 04:
This is the universal policy objectives that we have given you, and you need to use the export controls for these purposes.

[00:40:27] Speaker 04:
But what it didn't say is, and we care about our military superiority, we care about our international obligations, and we care about our foreign policy.

[00:40:34] Speaker 04:
Clearly.

[00:40:36] Speaker 04:
But you can't place people on the entity list for those reasons.

[00:40:39] Speaker 04:
And Judge Malletta, as you're pointing out, I think it only underscores the correctness of our position that we can create multiple lists.

[00:40:47] Speaker 04:
But that's a level of formalism, I think, that sort of blinks at reality.

[00:40:51] Speaker 04:
That because you might have one combined list as opposed to two or three or 17 different other lists, and somehow then Congress has prohibited and barred the agency from acting here in such a clear and mandatory manner

[00:41:05] Speaker 04:
that it's a patent violation of law for the executive branch to be concerned about foreign policy and to place entities on this list when they act contrary to our foreign policy national security.

[00:41:16] Speaker 07:
And how do we know in the wake of aid association for Lutherans that that ultra various standard that you just articulated is the one that's going that we should apply here as opposed to their argument that

[00:41:27] Speaker 07:
There's a bit softer one in this context.

[00:41:31] Speaker 04:
Well, as I know, Your Honor, this question of the exact scope of ultra virus review under the Export Control Reform Act is also being considered by this court in FedEx Corporation versus Department of Commerce.

[00:41:43] Speaker 04:
I believe it was submitted November 5th of last year.

[00:41:46] Speaker 04:
So that's going to be decided by this court very likely in that case as well.

[00:41:50] Speaker 04:
But what I would point the court to is its decision in Griffith versus FLRA where it laid out the

[00:41:56] Speaker 04:
ultra-virus standard of review, and it said, an error of fact of law is insufficient.

[00:42:00] Speaker 04:
We have said that review may be had only when the agency's error is patently a misconstruction of the act, or when the agency has disregarded specific and unambiguous section for directive, burdened variety errors of law or fact are not enough.

[00:42:15] Speaker 04:
And that seems to me to be the standard of review here, particularly as- So how are you distinguishing the Lutheran Aid Association for Lutheran case?

[00:42:22] Speaker 04:
I think so, as I understand it, eight association for Lutherans, it was there as well that it was a very violation of the statute.

[00:42:31] Speaker 04:
And so this court has used some different formulations of it, whether it's a patent misconstruction or a clear misconstruction, as I think Dart says, but it's a clear and unambiguous directive that leaves no determination to the contrary.

[00:42:42] Speaker 04:
And here,

[00:42:44] Speaker 04:
I think one, we're just correct on statutory interpretation at bottom.

[00:42:47] Speaker 04:
But two, even if you think, well, you know, maybe on balance, there's a better construction.

[00:42:52] Speaker 04:
Maybe on balance, there's some more reticulation here.

[00:42:55] Speaker 04:
I mean, that's sort of the fine-grained determinations that you would usually be making on Administrative Procedure Act review under Section 706 of the Administrative Procedure Act.

[00:43:04] Speaker 04:
But what we know what Congress said here under the Export Control Reform Act is that does not apply.

[00:43:09] Speaker 04:
We do not want Administrative Procedure Act review of these sorts of determinations.

[00:43:14] Speaker 04:
And Congress specifically cited the standards of review of the EPA.

[00:43:18] Speaker 04:
It cited Section 706 as part of the prohibition of APA review.

[00:43:22] Speaker 04:
It said that does not apply.

[00:43:24] Speaker 04:
to these kinds of determinations.

[00:43:26] Speaker 04:
So necessarily, it has to be a higher standard, because otherwise, I think you'd see a lot of entities, as you're saying, who are on a determination that they present a substantial threat to the interests of the country, raising non-statutory ultra-virus arguments that, well, either you didn't have the specific and articulable facts to put me on the entity list, or actually I'm on here for this statutory reason and the government's reason under 2A is pretextual, or any other number of challenges

[00:43:54] Speaker 04:
to the executive branch's determination here about what's necessary to protect our national security and foreign policy.

[00:44:01] Speaker 04:
And I think that that's exactly what Congress was trying to stop at the outset in enacting that bar on APA review.

[00:44:07] Speaker 04:
It said,

[00:44:07] Speaker 04:
We will allow for EPA review when there is a particular enforcement proceeding, where you've had an administrative record, that's not an issue in this case, where the agency has had an opportunity to respond to particular challenges.

[00:44:18] Speaker 04:
But this is a rare bird, and this is not the kind of challenge that should be allowed to, again, obtain a preliminary injunction, an extraordinary form of relief against the executive branch's considered determination here about what is in our foreign policy interests.

[00:44:34] Speaker 01:
Well, let me ask you in terms of your rare bird argument.

[00:44:41] Speaker 01:
The argument here is that there have been a lot of human rights violations asserted either by the president or the agency, but not in regard to this particular list

[00:45:05] Speaker 01:
that is the list at issue.

[00:45:09] Speaker 01:
And why isn't that some indication that a couple of things, either Congress was not as clear as it might have been, or the agency itself in the interim offered no interpretive language and this rare bird comes along

[00:45:36] Speaker 01:
25 years ago, lists this entity for human rights violations.

[00:45:49] Speaker 01:
So we do, if you can't find anything where Congress was explicit, then

[00:46:03] Speaker 01:
You look at the agency's contemporaneous interpretation.

[00:46:11] Speaker 01:
We don't have that here.

[00:46:18] Speaker 04:
So I think responding to those points generally, we don't.

[00:46:23] Speaker 04:
So what the agency has consistently said before this is that foreign policy reasons, I think contrary to our foreign policy interests and human rights abuses,

[00:46:32] Speaker 04:
are reasons that we can place somebody on the entity list and agree.

[00:46:36] Speaker 01:
Well, what I'm getting at is this is such a serious action by government.

[00:46:44] Speaker 01:
And that's the argument here.

[00:46:48] Speaker 01:
And the agency has never interpreted its authority to allow it to do what it did.

[00:46:55] Speaker 01:
And it doesn't point to evidence that Congress contemplated this.

[00:47:02] Speaker 01:
So I understand one argument that says, well, looking at DART, the standard of review here is much higher.

[00:47:13] Speaker 01:
But we have all these other cases that suggest not necessarily that high, that if you can show Congress clearly thought these five purposes were critical.

[00:47:32] Speaker 01:
and while the agency can take this additional action, it never has before.

[00:47:38] Speaker 01:
It hasn't, despite the world full of claimed human rights abuses, it hasn't exercised this authority before.

[00:47:54] Speaker 01:
So that's the rare bird coming back at you.

[00:47:59] Speaker 04:
Well, I think your honor, that's because, and it's consistent with our understanding of the statute is that this is a discretionary listing that the executive branch was able to make.

[00:48:08] Speaker 04:
Right?

[00:48:09] Speaker 04:
As we've explained under 48 through team a two, Congress has mandated.

[00:48:15] Speaker 04:
the essential limits of what this must contain at a minimum.

[00:48:19] Speaker 04:
If anybody is conducting acts of terrorism or threatening our military capabilities, they must be placed on this list.

[00:48:27] Speaker 04:
But that's far from saying there is a bar from placing entities on the entity list for any other reason.

[00:48:35] Speaker 01:
And I think we- I understand that, but Congress didn't, you haven't cited any indication that Congress actually

[00:48:45] Speaker 01:
contemplated having this other list.

[00:48:49] Speaker 01:
I mean, Judge Millett has been through with petitioner or appellant's council, other provisions, but I just wonder to what extent on ultra virus review,

[00:49:15] Speaker 01:
we can fill in all these gaps.

[00:49:22] Speaker 04:
I don't think that you necessarily need to fill in any of the gaps.

[00:49:27] Speaker 04:
I think what, and I'm sorry, I hadn't read the case that opposing counsel had cited to me yesterday very closely, but as I understood that case to be on ultra virus review, it said, look, it doesn't necessarily, we don't need to come to a conclusion one way or the other about what the statute means.

[00:49:43] Speaker 04:
So, long as meetings are possible or colorable here.

[00:49:47] Speaker 04:
That's sufficient to defeat ultra virus review.

[00:49:49] Speaker 04:
I believe they're the opponents.

[00:49:50] Speaker 04:
I've gotten an injunction against the government's action.

[00:49:53] Speaker 04:
And then this court said, no, you don't get that injunction.

[00:49:56] Speaker 04:
This has this has to go back for further proceedings.

[00:49:59] Speaker 04:
So, I think what ultra virus review requires is if you have.

[00:50:04] Speaker 04:
you know, an open and shut case, which is what this court considered DART to be.

[00:50:08] Speaker 04:
Maybe that is sufficient.

[00:50:10] Speaker 04:
But I think as you're looking to these cases that go through these sort of exercises and steps for construction, I'd point the court to Adirondack Medical Center, where this court was considering exactly what the agency could do.

[00:50:25] Speaker 04:
And it said there, the expressio unius canons of people helper, where we presume Congress granted the agency reasonable discretion

[00:50:33] Speaker 04:
And that cannon saying like, well, maybe because we granted you something specifically, we've prohibited the rest.

[00:50:38] Speaker 04:
That can be countervailed by a broad grant of authority contained within the same statutory scheme.

[00:50:45] Speaker 04:
And I think that that's what we have here.

[00:50:46] Speaker 04:
If you look to what Congress granted the president authority to do in 4812 B7, it said the president and personally, just create a list of entities.

[00:50:56] Speaker 04:
that are threatening our national security and foreign policy without limitation.

[00:51:00] Speaker 04:
And then 4813 is directing the rest of the executive branch to assist the president in carrying out those and reserves a broad grant of authority saying that the executive branch, commerce department, state, treasury, etc.

[00:51:12] Speaker 04:
can take any other action that is not otherwise prohibited.

[00:51:16] Speaker 04:
And I think the key difference here is they are saying because Congress specified a grants of authority, it is necessarily prohibiting the rest.

[00:51:26] Speaker 04:
And that's at least debatable.

[00:51:28] Speaker 04:
And I think I still haven't heard, and maybe there is one, but I'm not aware of it.

[00:51:33] Speaker 04:
I haven't heard a reason why Congress would pass the controller format, grant the executive,

[00:51:39] Speaker 04:
the authority to use these export controls, ratify all previous action, but nevertheless then, for the first time, severely constrain our ability to add entities to the entity list for only five reasons.

[00:51:51] Speaker 04:
Even if an entity is threatening our military superiority, we can't add them to that reason, even if it's harming our international obligations.

[00:51:58] Speaker 01:
And that- All I'm getting at is under the five reasons that are specified, there are ways to write violations that are human rights violations.

[00:52:08] Speaker 01:
that come within the five, but that's not what happened here.

[00:52:13] Speaker 01:
That's all I'm trying to get at.

[00:52:16] Speaker 04:
I agree, Your Honor.

[00:52:16] Speaker 04:
I agree it's discretionary.

[00:52:18] Speaker 04:
It's not a mandated listing.

[00:52:19] Speaker 04:
And there may be other cases where those reasons would overlap and that Congress didn't write it that way.

[00:52:27] Speaker 04:
But the fact that Congress could have written it another way does not necessarily mean that Congress prohibited and tied the executive branch's hands in this instance.

[00:52:36] Speaker 04:
And I think that the concession that we could place entities on an ultra-formalistic separate piece of paper for the exact same substantive export controls in the exact same reasons under the exact same regulations confirms the understanding here that we are not acting so far outside our statutory authority as to warrant non-statutory ultra-virus review.

[00:52:58] Speaker 01:
So you understand council's concession to be that broad.

[00:53:04] Speaker 04:
That's what the district court understood it as well, Your Honor, at Joint Appendix, page 178, where it quoted the transcript from the preliminary injunction hearing, as I understood it.

[00:53:14] Speaker 01:
No, I know, but that's in a broader context here.

[00:53:16] Speaker 01:
We're just dealing with the ultraviaries, and I just want to be clear about that.

[00:53:21] Speaker 01:
Because often now we're into this express statement requirement by Congress.

[00:53:29] Speaker 01:
Supreme courts emphasize that in so many different contexts.

[00:53:34] Speaker 01:
And I just wonder here, that's what I understand is happening.

[00:53:43] Speaker 01:
That's part of the argument.

[00:53:45] Speaker 01:
But you're saying absent a plain statement by Congress, you cannot do this, or I suppose you can do this.

[00:53:57] Speaker 01:
regardless of what we may have said before?

[00:53:59] Speaker 04:
I think that's consistent with what this court has said before.

[00:54:04] Speaker 04:
And I point to Dart there as well.

[00:54:06] Speaker 04:
What this court said is, in Dart, we can ultraviolet review is narrow and must not simply involve- So no question about that, all right?

[00:54:16] Speaker 01:
And I suppose you would read our decisions then to say, even where there is a serious question,

[00:54:30] Speaker 01:
And you're just saying there's no serious question.

[00:54:35] Speaker 04:
So here we are saying one, there's no serious question.

[00:54:38] Speaker 04:
If this case were here on Administrative Procedure Act review, we would- No, no, no, no, I understand that, but I'm talking about ultra-virus.

[00:54:45] Speaker 04:
Sure, and on ultra-virus, as I understand this court suggests, ultra-virus review is possible where there is a, quote, clear and mandatory statutory directive that was nevertheless violated.

[00:54:57] Speaker 04:
That's from DART at page 231.

[00:55:00] Speaker 01:
No, I understand.

[00:55:01] Speaker 01:
But as I've said, and I thought your earlier answer to my question about Dart said, well, but there are these other views.

[00:55:09] Speaker 01:
And then you went on to talk about other views of ultra various review, narrow though it be.

[00:55:21] Speaker 04:
Yes, Your Honor.

[00:55:21] Speaker 04:
I think those are all, I don't necessarily see a difference between them.

[00:55:25] Speaker 04:
I think that they're all consistent with each other in different formulations.

[00:55:30] Speaker 04:
I don't necessarily know that this court needs to get into a reticulated examination of them.

[00:55:35] Speaker 04:
But if you do, I think that patently in this construction of the Act from Griffith, it seems like that that's the appropriate standard.

[00:55:43] Speaker 01:
So one other question.

[00:55:45] Speaker 01:
In this particular case, given what's happened subsequently, there is no remedy, as I understand.

[00:56:01] Speaker 01:
the position.

[00:56:02] Speaker 01:
Is that correct?

[00:56:06] Speaker 04:
Do you mean the preliminary junction remedy or the delisting from the entity list?

[00:56:11] Speaker 01:
I mean in terms of what the agency did subsequently in finding that it would have reached a different conclusion provided these two conditions are met.

[00:56:25] Speaker 01:
And one of those conditions we're told cannot be met.

[00:56:31] Speaker 04:
I think that that fact and the reasons for it only underscored why plaintiffs are not entitled to a preliminary injunction of the executive branch's termination here.

[00:56:44] Speaker 02:
Can I ask, so that condition that's under seal might impact your

[00:56:54] Speaker 02:
eagerness to pursue this.

[00:56:56] Speaker 02:
Now, don't, don't blurt out a sealed fact in open court.

[00:57:00] Speaker 02:
Just give me a yes or no answer to the question.

[00:57:03] Speaker 02:
Um, are, are there any recently changed circumstances that impact that condition one way or the other?

[00:57:13] Speaker 02:
I am not aware of any, your honor.

[00:57:14] Speaker 04:
Okay.

[00:57:18] Speaker 04:
I'm happy to answer for the questions, but we'd ask you to affirm the denial of preliminary

[00:57:33] Speaker 03:
Thank you, Your Honor.

[00:57:36] Speaker 03:
I'd like to make three points, unless the court has any questions.

[00:57:39] Speaker 03:
First of all, just briefly on the standard of review, I don't think there's any dispute that in this case, Ultramira's review is available to us.

[00:57:46] Speaker 03:
That's what the dark case says.

[00:57:48] Speaker 03:
I understand my friend on the other side mentions the Griffith standard error factor of law even is insufficient.

[00:57:55] Speaker 03:
This court has also used words like extreme, Hail Mary, Peyton.

[00:57:59] Speaker 03:
I think the best way to reconcile those sorts, that sort of language and those descriptions of the Ultramira standard

[00:58:06] Speaker 03:
with the eight association for Lutheran case, which is what we think sets forth the proper standard here is in those cases, there was a review provision that precluded review generally, whereas here there's no dispute that ultra beer as non statutory review, which predates the A. P. A. Is is available to us.

[00:58:26] Speaker 03:
And I think that the northern air cargo case, which is the one I mentioned,

[00:58:30] Speaker 03:
As well as the Association and the dark case all found that the plaintiff prevailed on that non statutory ultra various review.

[00:58:37] Speaker 03:
It is not an insurmountable barrier by any means briefly on that northern air cargo case, which is the one I said today.

[00:58:46] Speaker 03:
What happened there is the court actually found ambiguity and said we cannot affirm the

[00:58:51] Speaker 03:
government's interpretation, given that ambiguity, because they failed to provide one during the provision.

[00:58:58] Speaker 03:
So it was not a case where plaintiffs lost.

[00:59:00] Speaker 03:
In fact, the government lost in that case.

[00:59:02] Speaker 03:
The second point I would make briefly is that, you know, I think it's entirely sensible that Congress wanted a list of the worst of the worst.

[00:59:11] Speaker 03:
And that's what that language reflects, to Judge Millett's points, the, you know,

[00:59:15] Speaker 03:
most had most wanted and it would dilute that list to add entities for reasons other than those lists.

[00:59:21] Speaker 03:
Not only are those the worst of the worst, it was also the traditional contents of the list.

[00:59:25] Speaker 03:
It was done pursuant to that specific policy.

[00:59:28] Speaker 03:
And I think it's strange to imagine that given the statutory history, Congress would have enacted a law that specified the agency continued to do exactly what it's been doing and what the list has always done.

[00:59:42] Speaker 03:
I think when council was describing that,

[00:59:43] Speaker 03:
He even used the word including, make a list that includes these things.

[00:59:47] Speaker 03:
But of course, that is not what that language says.

[00:59:49] Speaker 03:
It doesn't, pointedly does not use the word including.

[00:59:52] Speaker 03:
Now, of course, Congress can change its mind.

[00:59:53] Speaker 03:
And in fact, there's language that is circulating, has been passed by both houses now, that would actually literally add a Roman at six, the list of five.

[01:00:03] Speaker 03:
Six being serious human rights abuses.

[01:00:06] Speaker 03:
In that situation going forward, there should be little doubt that they would have the authority to add entities to the entity list for that purpose.

[01:00:13] Speaker 03:
But I don't think that, I think that strongly suggests that they don't.

[01:00:16] Speaker 07:
Does that legislation require the inclusion?

[01:00:18] Speaker 03:
Literally all it does is 4811 2A has the five.

[01:00:24] Speaker 03:
So it's required to add six.

[01:00:26] Speaker 03:
Well, we'd say it gives the agency the authority to add entities to the list for that purpose.

[01:00:33] Speaker 07:
Would it allow them to say, yeah, but we don't want to?

[01:00:36] Speaker 03:
No.

[01:00:37] Speaker 07:
Right.

[01:00:37] Speaker 07:
It would be required for them.

[01:00:39] Speaker 03:
that will be the specific directive.

[01:00:42] Speaker 03:
And again, as the API case and others make clear, progress does not need to say do this, but don't do that in order to make its intentions clear.

[01:00:51] Speaker 03:
It can set both the policy and the means of effectuating that policy.

[01:00:54] Speaker 03:
Uh, the final point is, I think your honor asked just last about whether this is one listed in addition to the points I made, which is that this is the worst of the worst list.

[01:01:02] Speaker 03:
I would also point out that there are special procedures with the entity list that would not necessarily be held in some future found in some future list.

[01:01:10] Speaker 03:
Um, um, uh, you know, such as you need a unanimous vote of an inter agency committee to be removed from the list.

[01:01:16] Speaker 03:
That's part of what explains the current predicament.

[01:01:18] Speaker 03:
that we are in we're stuck here because of of this problem we've been conditionally removed but but are in in sort of limbo and you know the irony of all this is that this company uh is an ethical company it prides itself on its ethical company it's a founding member of the united nations global compact which is a sustainability of human rights

[01:01:37] Speaker 03:
a company that's been part of this region for a long time.

[01:01:40] Speaker 03:
It pays farmers directly, pays double, triple the minimum wage.

[01:01:42] Speaker 03:
It's just, it's insult upon injury to be added to this list of the worst of the worst and have really no way of removing.

[01:01:50] Speaker 03:
So I would urge this court to find at least a serious legal question on the merits and either enter the injunction or remand with instructions for the court to consider all of the preliminary injunction factors.

[01:02:04] Speaker 01:
Thank you.

[01:02:04] Speaker 01:
Thank you, counsel.

[01:02:05] Speaker 01:
We'll take the case under advisement.