[00:00:00] Speaker 01: Face number 21-1077, James E. Plaque petitioner versus Office of the Comptroller of the Currency. [00:00:07] Speaker 04: Mr. Coburn for the petitioner, Ms. [00:00:09] Speaker 04: Hicks for the respondent. [00:00:15] Speaker 04: Council for petitioner. [00:00:17] Speaker 00: Thank you so much, Judge Rogers. [00:00:20] Speaker 00: I'm Barry Coburn representing the petitioner, James E. Plaque. [00:00:23] Speaker 00: I've asked to reserve with the court's permission, two minutes for rebuttal. [00:00:27] Speaker 00: What we have in this case is an enforcement proceeding that was undertaken by the Office of Controller of the Currency, which I gather everyone agrees was essentially an unconstitutional proceeding because it violated the Appointments Clause. [00:00:42] Speaker 00: There were two consecutive ALJs presiding over the proceeding, neither of which were appointed [00:00:48] Speaker 00: in accordance with the appointments clause. [00:00:50] Speaker 00: And this is, I gather, uncontested under Saul and Lucia. [00:00:57] Speaker 00: And as a result of the enforcement proceeding, you know, Mr. Plaque, essentially, as you can probably tell from the record, I mean, [00:01:04] Speaker 00: He was seeking to defend on the merits. [00:01:07] Speaker 00: He was, to some degree, I mean, the pressure was just enormous. [00:01:10] Speaker 00: And he was flailing to some degree. [00:01:13] Speaker 00: We saw a review with respect to the Appointments Clause issue in the US District Court in New York. [00:01:18] Speaker 00: That was denied for jurisdictional reasons. [00:01:20] Speaker 00: He abandoned it on appeal. [00:01:23] Speaker 00: He raised it in the proceeding itself. [00:01:25] Speaker 04: Well, counsel, in all due respect, since your time is limited, you represented him. [00:01:32] Speaker 00: Oh, I did. [00:01:33] Speaker 00: Absolutely. [00:01:34] Speaker 00: And to the extent that anything should have happened in that proceeding that didn't happen, I certainly bear responsibility for that. [00:01:42] Speaker 04: He hasn't alleged ineffective assistance of counsel or anything like that. [00:01:48] Speaker 00: No, no, no. [00:01:49] Speaker 04: But he's coming in five years later. [00:01:51] Speaker 04: And you really don't address that at all. [00:01:56] Speaker 03: Mr. Coburn, just to put all the facts on the table, he's coming in five years later with an intervening settlement agreement. [00:02:04] Speaker 03: So it seems to me that he has waived whatever arguments he may have had about that proceeding. [00:02:11] Speaker 03: And today we're really only focusing on the motion to reopen and the extent to which we have jurisdiction over that and the merits of that. [00:02:22] Speaker 03: agency determination. [00:02:24] Speaker 03: Am I wrong about that? [00:02:26] Speaker 03: So with that complete statement, what's your response? [00:02:30] Speaker 00: Well, I think both Judge Rogers and Judge Jackson are right that certainly the principal focus here should be on the denial by the agency of the motion to reopen. [00:02:41] Speaker 00: I think that's fundamentally what this is about. [00:02:44] Speaker 00: And certainly, you're right. [00:02:47] Speaker 00: I mean, he is here five years later, even a little bit more than five years later. [00:02:51] Speaker 00: I mean, essentially, he was the subject, like I said, of an unconstitutional proceeding. [00:02:55] Speaker 00: He had to rebuild his limits. [00:02:57] Speaker 03: But before we go back to that, [00:02:58] Speaker 03: Mr. Colman, before we go back to that, I understand you're getting us focused on what happened five years ago, but why do we have jurisdiction to hear an appeal of the agency's determination on the motion to reopen? [00:03:18] Speaker 03: I saw, very curiously, that you did not plead 1331 jurisdiction, right? [00:03:24] Speaker 03: I mean, you're only relying on this 1818H [00:03:29] Speaker 03: window of opportunity. [00:03:31] Speaker 03: So can you just talk about your jurisdictional argument? [00:03:36] Speaker 00: Absolutely, we should have pled 1331 jurisdiction and you know I mean that I think that's I think you're at the point your point is well taken, and I think there is general 1331 jurisdiction here. [00:03:49] Speaker 00: You know, basically, this is a determination by the agency, which we saw review of and in the US Court of Appeals within the 30 days required and. [00:03:59] Speaker 03: That's not what H1, so two things, you didn't plead 1331, so we can only go with what you argued as a basis for jurisdiction. [00:04:08] Speaker 03: And when I look at 1818H, it doesn't read like a generic, general, any determination of the agency come to court. [00:04:20] Speaker 03: It's pretty specific in terms of what it is that is the sort of precursor for the court's review. [00:04:30] Speaker 03: And so I'm just trying to understand why you think that this gives rise to our jurisdiction under these circumstances. [00:04:37] Speaker 00: Well, we did plead the APA, Judge Jackson. [00:04:40] Speaker 00: And I mean, we expressly pleaded that. [00:04:42] Speaker 00: And that is probably dependent to some degree on Section 1331 jurisdiction. [00:04:49] Speaker 00: I mean, basically, we're alleging that there was an agency determination here, which was subject to review within the 30 days provided. [00:04:57] Speaker 00: And we sought that review within the 30 days provided. [00:04:59] Speaker 00: So I don't know. [00:05:01] Speaker 00: I'm sure you're right. [00:05:02] Speaker 00: I'm sure that you've looked carefully at our brief and found that we did not specifically reference [00:05:07] Speaker 00: 1331. [00:05:08] Speaker 00: But I do think it's implicit in the request for APA review. [00:05:11] Speaker 00: And I think this court has every right to review an order of the OCC that was entered. [00:05:18] Speaker 00: It's patently a final order. [00:05:19] Speaker 00: There's nowhere to go from it. [00:05:21] Speaker 00: And that is, as you've correctly pointed out, that's the fundamental avenue of review [00:05:26] Speaker 00: that we're seeking here review of the order, precluding the reopening of what was patently an unconstitutional proceeding. [00:05:35] Speaker 00: And you know that wasn't the only mistake we made, by the way, you know we we should have included a separate section in our opening brief with respect to standing I'd like to apologize to the court. [00:05:45] Speaker 00: for our failure to do that. [00:05:46] Speaker 00: But I think standing as patent in this case, it's obvious that there's a constitutional deprivation of his, you know, right to practice his chosen profession. [00:05:54] Speaker 00: I think that implicates both liberty and property interests. [00:05:57] Speaker 00: And I think I mean, I think and this is it presents it presents a fundamental constitutional issue. [00:06:04] Speaker 04: The agency is the argument. [00:06:07] Speaker 04: All right. [00:06:08] Speaker 04: None of that deals with the government's. [00:06:11] Speaker 04: Argument about the plane [00:06:13] Speaker 04: meaning of the statute? [00:06:17] Speaker 00: Well, Your Honor, when you refer to the plain meaning of the statute, I think the statute that you're referencing is section 1818, subsections H and I. And I don't actually concede, by the way, that subsection I precludes this kind of review. [00:06:36] Speaker 00: I think a close reading of that language at the very end [00:06:38] Speaker 00: of subsection I doesn't suggest that. [00:06:41] Speaker 00: Because if you're reviewing the request to reopen, we're not asking for the avenues of relief that are enumerated at the end of subsection I. We're asking for something different. [00:06:51] Speaker 00: We're asking for kind of a normal review of an agency order. [00:06:56] Speaker 00: And I don't think section 1818H or I precludes that review. [00:07:01] Speaker 00: I think the review is absolutely appropriate under the APA. [00:07:05] Speaker 00: and Section 1331, and I apologize to whatever extent we failed to specifically note that section in our brief. [00:07:12] Speaker 03: But isn't that dispositive to a certain extent? [00:07:14] Speaker 03: I mean, I'm desperately trying to look to see whether or not you can implicitly claim jurisdiction over if you didn't raise it in your briefs or materials. [00:07:28] Speaker 03: I'm not sure I've ever seen that. [00:07:30] Speaker 00: I don't know your honor and I here I'm, I confess I'm taking a little bit of a flyer I don't have any of the applicable cases in front of me but you know in terms of whether or not there's a requirement to please section 3030. [00:07:44] Speaker 00: I've got an echo there, please section 1331. [00:07:48] Speaker 00: Or, or be precluded from relying upon it as a basis of jurisdiction. [00:07:53] Speaker 00: I don't know that you know that's a sort of a, you know, that's the basis for review. [00:07:58] Speaker 00: 99% of. [00:07:59] Speaker 03: I'm sorry, Mr Coburn at a minimum, usually the courts of appeal require you to [00:08:08] Speaker 03: rely only on arguments that you made in your brief? [00:08:11] Speaker 03: Like, did you make a 1331 basis for jurisdiction in your briefs? [00:08:17] Speaker 00: I don't think we specifically referenced Section 1331, but like I said, we did specifically reference the Administrative Procedure Act. [00:08:24] Speaker 00: To the extent that is conditioned on Section 1331 jurisdiction, then I think we've invoked it. [00:08:31] Speaker 03: I mean, we've thought... Well, do you have cases that suggest that there's even an APA kind of claim in this context? [00:08:37] Speaker 03: My understanding is that we have a comprehensive statutory scheme about these banking issues that is pretty specific related to what you're supposed to do and how you challenge and enforcement actions and whatnot. [00:08:53] Speaker 03: And ordinarily, APA claims are sort of residual, that you can bring in APA claim if there is not another scenario in the statutes or whatnot for you to make your challenge. [00:09:07] Speaker 03: So I'm concerned that you may not even have an APA claim in the ordinary course in this kind of realm. [00:09:15] Speaker 03: So can you speak to that maybe? [00:09:17] Speaker 00: Absolutely. [00:09:17] Speaker 00: I take Your Honor's point. [00:09:18] Speaker 00: And I think Your Honor's characterized the Administrative Procedure Act entirely accurately. [00:09:23] Speaker 00: And I think it fits this context like a glove, candidly. [00:09:27] Speaker 00: I mean, if in fact, Section 1818, subsections H and I [00:09:32] Speaker 00: you know, they prescribe like the sort of, you know, highly specific scheme in terms of, you know, there has to be, you know, kind of a series of steps leading to a hearing, the hearing has to be completed, there has to be an order, and then, you know, you get review in the, in the circuit. [00:09:47] Speaker 00: I understand that, but that doesn't, that, I don't, I don't see anything in that statute or the legislative history or even [00:09:53] Speaker 00: in the argument that's made by the OCC here, suggesting that that statutory scheme means that if the OCC, you know, has the kind of motion that we filed, the motion to reopen a proceeding, [00:10:05] Speaker 00: and they deny that motion, that that means that they're the last word. [00:10:11] Speaker 00: They're the final word. [00:10:12] Speaker 00: That's precisely, I mean, to take your honor's point, Judge Jackson, what you just said, that's precisely the reason for the APA is to make sure that they're not the final word with respect to an issue like that. [00:10:24] Speaker 03: It's not quite done at that level of abstraction. [00:10:28] Speaker 03: Usually, if there is a scheme [00:10:31] Speaker 03: for a statutory scheme for people to bring challenges to the agency and have them resolved, you can't circumvent that by just bringing in, you know, it would make H and I and what other, you know, jurisdictional provisions in the statute irrelevant if petitioners or people who disagree with an agency determination can just rely on the APA and come to court. [00:10:58] Speaker 03: So I don't I didn't interrupt you. [00:11:00] Speaker 03: No, no, I'm sorry. [00:11:01] Speaker 03: I was I was basically done. [00:11:03] Speaker 03: I'm just musing as to the implications of your argument. [00:11:07] Speaker 00: No, sure. [00:11:07] Speaker 00: Well, I think I mean, I take your honor's point. [00:11:10] Speaker 00: And, you know, I think if I were seeking review of, you know, something that is precluded expressly precluded by Section 18 18 I subsection I. [00:11:21] Speaker 00: Then I think we'd be completely out of luck. [00:11:24] Speaker 00: But my view is that section 1818 I which is the that's the preclusion language that the OCC relies on does not preclude this it the language of that subsection does not preclude the notion of filing a motion to reopen a proceeding that's been closed. [00:11:40] Speaker 00: have the agency deny it and then seek review by a US court of appeals. [00:11:44] Speaker 00: I don't see anything in that subsection that says we can't. [00:11:47] Speaker 00: And if that subsection doesn't preclude us from doing this, then it is precisely the kind of residual relief that the APA is there for. [00:11:56] Speaker 00: And moreover, I think that suggests that the statute itself is not preclusive, is not supposed to be all encompassing, is not supposed to say that this is it and nothing more. [00:12:07] Speaker 00: If Congress wanted to say that, [00:12:09] Speaker 00: It could have said it, but it didn't it enumerated particular areas of relief that were unavailable in section 18 18 I, and those areas of relief, exclude the relief that we're looking for here. [00:12:21] Speaker 04: All right, why don't we hear from the government. [00:12:28] Speaker 01: Good morning. [00:12:29] Speaker 01: May it please the court. [00:12:30] Speaker 01: My name is Hannah Hicks, and I represent the Comptroller of the Currency. [00:12:34] Speaker 01: Your Honors, I would like to begin by addressing three points that Mr. Coburn made. [00:12:39] Speaker 01: First, with respect to the APA, the APA by its own terms does not apply where another statute precludes judicial review. [00:12:48] Speaker 01: Here, Section 1818, subsections H and I affirmatively preclude the review that Mr. Coburn is seeking. [00:12:57] Speaker 01: Second, section 1818i, the preclusive effect of section 1818i is clear and convincing. [00:13:07] Speaker 01: That is the clear law of this circuit. [00:13:09] Speaker 01: The Supreme Court and Board of Governors of the Federal Reserve System, the MCOR, described the preclusive effect of 1818i as clear and convincing, and this court in Ritter v. OTS [00:13:23] Speaker 01: has adopted that language. [00:13:26] Speaker 01: And if I could just read briefly from section 1818 I, that language states that except as otherwise provided in this section, meaning section 1818, no court shall have jurisdiction to effect by injunction or otherwise the issuance of or enforcement of any notice or [00:13:45] Speaker 01: or an order under any such section or to review, modify, suspend, terminate, or set aside any such notice or order. [00:13:54] Speaker 01: Importantly, there is nothing in section 1818 or the OCC's practice and procedure regulations that required the comptroller to entertain the motion to reopen. [00:14:04] Speaker 01: The motion to reopen was simply not contemplated anywhere in our practice and procedure regulations or by statute. [00:14:14] Speaker 01: Third, the principal target of the instant petition is the 2015 consent order. [00:14:20] Speaker 01: By reviewing the motion to reopen, this court would be required to review the terms of the consent order and to effectively hold the consent order invalid as Mr. Plaque is requesting that the matter be reopened and re-litigated. [00:14:36] Speaker 01: This is a straightforward case. [00:14:38] Speaker 01: Federal courts are courts of limited jurisdiction, and this court is simply without jurisdiction to review the petition. [00:14:45] Speaker 03: Can you, Ms. [00:14:45] Speaker 03: Hicks, can you talk me through your jurisdictional argument, setting aside APA, just under the statute, right? [00:14:53] Speaker 03: You say, I says we can only proceed pursuant to review any order pursuant to this statute. [00:15:02] Speaker 03: So help me to understand how [00:15:05] Speaker 03: how you read H relative to all of this. [00:15:10] Speaker 01: Yes, Your Honor. [00:15:11] Speaker 01: Subsection H includes a jurisdiction granting provision that authorizes direct appeal to an appropriate Federal Circuit Court of Appeals within 30 days of a final decision by the comptroller following an administrative hearing and a recommended decision by an administrative law judge. [00:15:30] Speaker 01: Subsection H also carves out consent orders from this sequence of judicial review. [00:15:36] Speaker 01: Here, the February 2021 order was not issued following an administrative hearing or a recommended decision by an ALJ. [00:15:44] Speaker 01: And the 2015 consent order states that it was entered with the consent of the institution affiliated party concerned pursuant to subsection H. Turning to subsection I, this subsection includes a jurisdiction divesting provision that divests courts of jurisdiction to review orders other than those identified elsewhere in section 1818. [00:16:06] Speaker 01: And here the relevant provision of section 1818 is subsection H. And the prerequisites to judicial review set forth in that subsection have not been met for the reasons that I've just stated. [00:16:18] Speaker 03: All right. [00:16:19] Speaker 03: So can I ask you, you said at one point that there was no provision in this statute or elsewhere for directing the comptroller to resolve a motion to reopen. [00:16:31] Speaker 03: Did I hear you correctly? [00:16:32] Speaker 03: Like there's no [00:16:34] Speaker 03: requirement that that's correct okay um so is your what how does that argument relate to the language of 1818 h are you arguing that the comptroller in order to resolve this motion and trigger our jurisdiction would have had to have a hearing or [00:16:57] Speaker 03: There has to be a full, I'm just trying to piece them together. [00:17:01] Speaker 03: Are you saying that in the future when a comptroller gets a motion to reopen. [00:17:09] Speaker 03: They have to have, they can't resolve it without a full evidentiary here. [00:17:15] Speaker 01: I think that it's important to. [00:17:18] Speaker 01: view the ways in which the motion to reopen is tied inextricably to the consent order. [00:17:25] Speaker 01: So as an initial matter, the comptroller could not have granted the motion to reopen because it would have invalidated the consent order. [00:17:35] Speaker 01: Secondly, there is nothing within the statutory framework of Section 1818 that would allow for, that would contemplate the [00:17:46] Speaker 01: filing of a motion to reopen. [00:17:48] Speaker 01: Subsection H, here the underlying subsection allowing for hearing on a notice of charges is Section 1818E4 and that allows for a hearing based on a notice of charges to prohibit or remove an institution affiliated party from the banking system. [00:18:07] Speaker 01: So there is nothing within the statute that allows for hearing on a procedural motion such as a motion to reopen. [00:18:14] Speaker 03: And so that means, I think I hear you saying that 18H, 1818H doesn't apply to this situation because 1818H is about those sections or those determinations that are by statute required to have a hearing, you have an evidentiary hearing, the kinds of things [00:18:35] Speaker 03: that you're talking about in E, right? [00:18:38] Speaker 03: I mean, there's certain, I guess the way I was conceiving of this, and you might tell me if I'm wrong, is that it's not so much that the comptroller in this case didn't exercise his or her discretion to have a hearing, but this is not the type of thing for which a hearing is required by statute. [00:18:59] Speaker 03: And it has to be the type of thing [00:19:02] Speaker 03: for which a hearing is required by statute in order to trigger 1818H. [00:19:06] Speaker 01: Your Honor, I think that this court's decision in National Bank of Davis, the OCC, is particularly instructive on this point. [00:19:17] Speaker 01: In that case, a litigant in OCC proceedings was subject to a consent order, which is [00:19:27] Speaker 01: provided for in 1818 C. That consent order became final 30 days following its issuance. [00:19:36] Speaker 01: Thereafter, the litigant in the OCC proceedings filed a motion for reconsideration and then petitioned for review in this court on the denial of that motion for reconsideration. [00:19:50] Speaker 01: This court in that case stated that the principal target of the motion for reconsideration was the consent order. [00:19:58] Speaker 01: and thus 1818C, which is similar to 1818H. [00:20:02] Speaker 01: The motion was rather a procedural maneuver to reopen the final 1818C proceedings. [00:20:13] Speaker 03: Did the court say it would have jurisdiction or no? [00:20:16] Speaker 01: It did not have jurisdiction based on a reading of 1818C and I. Right. [00:20:20] Speaker 01: All right. [00:20:25] Speaker 04: So here's a hypothetical. [00:20:28] Speaker 04: Suppose the Supreme Court had held six months before the motion to reopen was filed that its decisions regarding the appointments clause and ALJ authority [00:20:57] Speaker 04: is retroactive and shall be applied by the lower courts and agencies retroactively to events occurring, I don't know, in this century sort of thing. [00:21:18] Speaker 04: What happens then? [00:21:23] Speaker 01: If the court had held that [00:21:27] Speaker 01: cases that may have been affected by an appointments clause challenge should be retroactively opened. [00:21:34] Speaker 01: I think that we would still have an open question about whether this matter would be affected because it was not ultimately adjudicated by an administrative law judge. [00:21:46] Speaker 01: And I think the threshold issue here too is that Mr. Plaque waived any right to contest the validity of the consent order. [00:21:55] Speaker 01: So this court need not [00:21:57] Speaker 01: look to Lucia? [00:21:58] Speaker 04: Well, suppose the Supreme Court had tried to address this type of situation where somebody proceeds administratively. [00:22:09] Speaker 04: He raised an appointments clause argument before the agency, but things didn't look as though they were going in his direction, given some of the ALJ rulings. [00:22:25] Speaker 04: So [00:22:28] Speaker 04: He decided he would opt to enter a consent order, that that was his best way out at the time. [00:22:38] Speaker 04: All I'm trying to hone in on here is, as I understood your answer to Judge Jackson, the Comptroller had no authority to address the motion to reopen, period. [00:22:57] Speaker 04: that it doesn't matter what the claim was, that petitioner had entered the consent order, he'd waived any and all future rights, et cetera. [00:23:15] Speaker 04: And I just wanna understand, is there any remedy in a situation where the Supreme Court has said subsequently, there shall be availability of a remedy? [00:23:28] Speaker 04: Then what happens? [00:23:30] Speaker 04: It's not five years too late. [00:23:32] Speaker 04: He raised it before. [00:23:35] Speaker 04: He didn't have any right at the time he entered. [00:23:38] Speaker 04: The Supreme Court did not rule at the time he entered the consent order. [00:23:44] Speaker 04: So I guess what? [00:23:47] Speaker 04: The Comptroller has to have authority to respond to retroactively available constitutional rights [00:23:57] Speaker 04: to an argument that that right was violated and it was material. [00:24:05] Speaker 04: Would you not agree? [00:24:06] Speaker 04: That's not this case. [00:24:10] Speaker 04: So what your answers to Judge Jackson made it seem as though, well, we have a consent order, end of discussion under any circumstances. [00:24:18] Speaker 04: My hypothetical is saying, well, that may be true in the circumstances we're presented with. [00:24:29] Speaker 04: I just wonder if we have to be careful how we handle this case. [00:24:36] Speaker 01: Your honor, I believe that under the practice and procedure regulations at part 109, the comptroller would have authority as an exercise of discretion to enter an order relating to a hypothetical case in which Lucia's holding is extended to terminated proceedings or to proceedings where an appointments clause challenge was untimely raised. [00:24:58] Speaker 03: And I may have confused the issue. [00:25:01] Speaker 03: I did not mean to suggest that my questions went to the Comptroller's authority to entertain the motion to reopen. [00:25:12] Speaker 04: But my question did. [00:25:14] Speaker 04: Yes, absolutely. [00:25:15] Speaker 04: And that's why I said this was a hypothetical. [00:25:18] Speaker 03: Yes, absolutely. [00:25:19] Speaker 03: And to the extent that I suggested otherwise, I did not mean to do so. [00:25:23] Speaker 03: You were absolutely correct in raising that point. [00:25:28] Speaker 01: Anything further? [00:25:29] Speaker 01: Unless the panel has any further questions, I would close by stating that the congressional intent to foreclose judicial review of comptroller's orders, except in narrow circumstances that are not present here, is clear and convincing. [00:25:46] Speaker 01: And in any event, Mr. Plaque knowingly and voluntarily waived any right to contest the validity of the 2015 consent order, which is the principal target of the instant petition. [00:25:56] Speaker 01: Thank you. [00:25:57] Speaker 04: Do my colleagues have any further questions? [00:26:01] Speaker 04: Thank you. [00:26:02] Speaker 04: All right, council for petitioner. [00:26:05] Speaker 00: Thank you so much, Judge Rogers. [00:26:07] Speaker 00: I mean, I think I just heard the OCC say, and I agree with them, that there is, in fact, authority in its own rules to rule on a closed proceeding. [00:26:17] Speaker 00: And moreover, in this case, they did rule. [00:26:20] Speaker 00: I mean, there was a ruling, and we have appealed it. [00:26:23] Speaker 00: I mean, and so I also don't see, I don't think the OCC argues in its brief that the ruling was erroneous that it issued. [00:26:31] Speaker 00: is it didn't have authority to issue it. [00:26:33] Speaker 00: I think it could patently had authority to issue it. [00:26:36] Speaker 00: I don't see anything in section 1818H or I or anywhere else in the statute precluding that authority. [00:26:42] Speaker 00: Moreover, as I stated before, I don't see anything in that statute precluding judicial review with respect to this very limited issue. [00:26:50] Speaker 00: We're not asking this court. [00:26:51] Speaker 00: I'm sorry. [00:26:52] Speaker 03: Ordinarily, the court does not evaluate its jurisdiction [00:26:57] Speaker 03: by saying we don't see anything in the statutory scheme to preclude us. [00:27:02] Speaker 03: In fact, jurisdiction is set up the other way around, that you have to show us where we have jurisdiction. [00:27:12] Speaker 03: And so my concern is that even if the comptroller had the authority to make this order, to entertain your motion, where in the statute does it indicate [00:27:25] Speaker 03: That we have the jurisdiction to review his ruling. [00:27:29] Speaker 00: Absolutely. [00:27:31] Speaker 00: Absolutely. [00:27:31] Speaker 00: I understand your honor's point. [00:27:32] Speaker 00: I'm not making the argument that section 18 18 H or I [00:27:37] Speaker 00: can either subsection or actually anywhere in section 1818 contain some sort of specific statutory language authorizing review of this order. [00:27:48] Speaker 00: I don't think it authorizes it and I don't think it precludes review. [00:27:52] Speaker 00: My point is, my central point is that the APA authorizes review. [00:27:57] Speaker 00: I think the APA gives this court jurisdiction. [00:27:59] Speaker 00: I think it authorizes review. [00:28:01] Speaker 00: I think it's exactly the kind of residual jurisdiction. [00:28:05] Speaker 02: Yes, sir. [00:28:06] Speaker 02: If we were to issue an opinion or judgment saying that you in your brief did not demonstrate our jurisdiction, and you could point us to one page of your brief that best rebots that proposition, what page would you point us to? [00:28:28] Speaker 00: I'm going to wish now that I had it pulled up on the computer next to me. [00:28:32] Speaker 00: Kent, will Your Honor give me 30 seconds just to look? [00:28:36] Speaker 03: I think you talk about it in your reply, because I don't know that you addressed it originally. [00:28:48] Speaker 03: And in the table of contents of your reply, you have it spanning pages four to eight. [00:28:56] Speaker 03: Maybe that narrows down your search? [00:29:03] Speaker 00: I guess. [00:29:04] Speaker 02: And while you're looking at it, I do just want to say, Mr. Kober, I don't mean it as a gotcha question. [00:29:07] Speaker 02: I really do want to give you the opportunity to prevent us from writing something that would be fair to you. [00:29:14] Speaker 00: I appreciate that very much, Your Honor. [00:29:16] Speaker 00: I think I'd refer to, in our opening brief, page one. [00:29:19] Speaker 00: I mean, we speak in here. [00:29:21] Speaker 00: Certainly, there are references to section 1818. [00:29:24] Speaker 00: But there are also references. [00:29:27] Speaker 04: That's not part of your argument, is it? [00:29:30] Speaker 04: I'm sorry, Your Honor. [00:29:33] Speaker 00: Page one of the opening brief? [00:29:35] Speaker 00: Yeah. [00:29:37] Speaker 00: Well, I'm not suggesting, I'm not, you know, invoking. [00:29:41] Speaker 04: No, Judge Walker's question is, where is your best argument in your brief as to why this court has jurisdiction? [00:29:56] Speaker 04: Is that correct, Judge Walker? [00:29:58] Speaker 00: It is. [00:30:00] Speaker 00: Well, I have to concede. [00:30:01] Speaker 00: I don't think the brief really contains much in the way of argument as to jurisdiction. [00:30:07] Speaker 00: I mean, I think, you know, from what we invoke the Administrative Procedure Act, I think in the opening brief and the reply, and I think, you know, we operated on essentially based on the understanding that by doing that, we were seeking to invoke this court's jurisdiction to review agency orders under the APA. [00:30:26] Speaker 04: Okay, so it's not there. [00:30:28] Speaker 00: That's about, I think that's about the best I can do there, your honor. [00:30:31] Speaker 00: I think it is, I think it's there sort of without being as direct probably as it should have been. [00:30:38] Speaker 04: Any thing further? [00:30:42] Speaker 00: No, thank you so much. [00:30:43] Speaker 04: Thank you. [00:30:43] Speaker 04: Thank you council. [00:30:44] Speaker 04: We'll take the case under advisement.