[00:00:00] Speaker 00: case number 23-1525, Afghan and Iraqi allies under serious threat because of their faithful service to the United States on their own and on behalf of others similarly situated versus Anthony J. Blinken et al. [00:00:14] Speaker 00: at balance. [00:00:15] Speaker 00: Mr. Platt for the at balance, Ms. [00:00:16] Speaker 00: Hirose for the appellee. [00:00:19] Speaker 05: Good morning, counsel. [00:00:20] Speaker 03: Mr. Platt, please proceed when you're ready. [00:00:22] Speaker 03: Thank you. [00:00:23] Speaker 03: Good morning. [00:00:23] Speaker 03: May it please the court. [00:00:25] Speaker 03: Steven Platt for the United States. [00:00:27] Speaker 03: The court should reverse the district court under Rule 54. [00:00:30] Speaker 03: The district court aired in placing excessive reliance on the nine-month timetable in the acts, an over-reliance which infected the rest of its track analysis. [00:00:40] Speaker 03: There is no need for this court to look at the former injunction or any forthcoming injunctions. [00:00:44] Speaker 03: The de novo rule 54 question before this court is simply whether the agencies violated the APA in November 2022. [00:00:51] Speaker 03: And the agencies then and are now processing SIV applications at a reasonable pace. [00:00:58] Speaker 03: They faced historic challenges, which they've reacted to reasonably. [00:01:01] Speaker 03: And they've also acted reasonably through their own measures of their own initiative. [00:01:07] Speaker 03: And the results are reasonable. [00:01:09] Speaker 03: General downward trajectories in average processing times, all while the injunction has been stayed. [00:01:16] Speaker 03: The court should hold that there is no APA and reasonable delay, reverse, and return this matter to the agency subject, of course, to the oversight of the executive and the continuing and substantial reporting obligations for Congress, whether under Rule 54 or 60. [00:01:31] Speaker 06: Do we, Mr Platt, have any information about how many pending applications from the original class members still remain pending? [00:01:43] Speaker 03: That information is not in the record, Your Honor. [00:01:45] Speaker 03: And that, I think, would be difficult to assess given just how dynamic this program is. [00:01:52] Speaker 03: There are people entering the class every day, leaving the class every day. [00:01:57] Speaker 03: As far as we are aware, this is the first class action on a reasonable delay case that this court has seen with individual agency actions for each class member that are being challenged. [00:02:08] Speaker 03: How about for Iraq? [00:02:09] Speaker 03: Because there's nobody being added in Iraq, right? [00:02:13] Speaker 03: That's correct, Your Honor. [00:02:14] Speaker 03: Congress has not extended the deadline to basically enter in the program. [00:02:20] Speaker 03: I believe that there are only 79 individuals still in the program, or at least 79 members, excuse me, were in the last congressional quarterly report from the one that was released last week. [00:02:36] Speaker 06: Now the report wouldn't reflect though, it would reflect everybody even if during the reporting period the delay, the case was sort of in their hands, it would still be reported. [00:02:48] Speaker 03: It would be reported if the agencies took action on their applications and closed out a step. [00:02:55] Speaker 03: It reports it by step by step. [00:03:01] Speaker 06: All of those applications were submitted, the Iraqi applications were submitted no longer, no later than 2014. [00:03:06] Speaker 06: Yes, Your Honor. [00:03:09] Speaker 06: And those are, there are still 79 that have not been processed. [00:03:15] Speaker 03: That's my understanding, Your Honor. [00:03:18] Speaker 03: And just in the last quarter on which there is a report, the report released last week, the agencies reported that for some of the longest pending applications were closed out, such that when you remove those individuals, the average processing times for the Iraq program were, it was simply down to 14 days. [00:03:38] Speaker 06: So the, I'm sorry, what was that in 14 days? [00:03:42] Speaker 03: That is the average processing time when the longest pending Iraqi class, not class members, but Iraqi SIV applicants are removed from the equation. [00:03:53] Speaker 05: It seems like you could always reduce the average by taking out the worst case scenarios. [00:03:59] Speaker 05: Is that just what you're saying? [00:04:01] Speaker 03: That is true, Your Honor, but I think that goes to show that the Iraqi program, which has had generally downward trending processing times is in even better shape than just the aggregate 15 months, which is what the agencies reported for the entire Iraqi program as of the report released last week. [00:04:25] Speaker 06: 14 days from [00:04:26] Speaker 06: I mean, they've already been nine years. [00:04:28] Speaker 06: I'm not following what that 14 days refers to. [00:04:32] Speaker 03: Sure. [00:04:32] Speaker 03: And if I may... Thank you. [00:04:38] Speaker 03: And so what I'm referring to, Your Honors, is on page six, going on to page seven of the report released last week, which is that when you remove cases pending from... [00:04:54] Speaker 03: This isn't in the JA, Your Honor. [00:04:55] Speaker 03: This is in our supplemental notice, which we had filed last week, reflecting the newest released reports. [00:05:04] Speaker 03: And on page six, going to page seven, the other 16 cases closed with an average processing time of 14 days. [00:05:13] Speaker 03: That was what the government or the Department of State was able to accomplish within this quarter for those applicants. [00:05:22] Speaker 03: And so overall, I'd like to talk a little bit more about the track analysis factor one. [00:05:29] Speaker 06: Let me just back up before you get into that. [00:05:31] Speaker 06: So only class members are covered. [00:05:41] Speaker 06: I'm sorry. [00:05:43] Speaker 06: The plan that's in place only covers [00:05:49] Speaker 06: S I V applicants who had applications that had already been pending for nine months as of. [00:05:57] Speaker 06: The summer of 2020. [00:05:58] Speaker 03: Yes, Your Honor, with just the caveat that the plane has been stayed, but yes, that is the plane that is still the plane has been stating since October, right? [00:06:10] Speaker 06: But the but the. [00:06:12] Speaker 06: Existing plan is the only injunction in the case. [00:06:16] Speaker 03: Yes, your honor. [00:06:17] Speaker 06: And as to that injunction, which was premised on the unreasonableness of the delay, the reasonableness of the delay was measured as of the summer of 2020. [00:06:28] Speaker 03: The unreasonableness of the delay was measured. [00:06:33] Speaker 03: Well, the district court issued its opinion in September 2019. [00:06:37] Speaker 03: The proposed injunctive plan, which eventually was adopted by the court, was filed in, I believe, April of 2020. [00:06:45] Speaker 06: Right. [00:06:45] Speaker 06: So the determination supporting the plan that is now before us, the unreasonable delay determination was made as of 2020. [00:06:57] Speaker 03: The unreasonable delay determination that the district court is relying on, the order that's on appeal is from November of 2022. [00:07:05] Speaker 06: That is on the rule 54, but I'm just going back and saying the underlying circumstances [00:07:14] Speaker 06: that support the adjudication plan was a determination as of 2020 that all of the individuals whose SIV applications were subject to the adjudication plan had claims that had been pending for more than nine months, and that that constituted unreasonable delay. [00:07:36] Speaker 06: And therefore, they were put into the adjudication plan. [00:07:40] Speaker 06: Is that right? [00:07:41] Speaker 03: I think we would disagree in that the unreasonable delay determination was as of September 2019, but. [00:07:49] Speaker 06: The reasonable determination as of September 2019, and then there's a remedy that's the adjudication plan, which is the injunction, the original injunction. [00:07:57] Speaker 06: The government appealed that and then decided it wasn't going to appeal the track factor analysis in support of that, right? [00:08:06] Speaker 06: But I guess my question is, [00:08:09] Speaker 06: How did any of the events that the government identifies, all of which occur after May 2020, how can that reach back and render reasonable delays which were already unreasonable as of 2019, 2020? [00:08:27] Speaker 06: They were unreasonable. [00:08:30] Speaker 06: So I just don't understand how you can now say that the plan should be completely vacated [00:08:37] Speaker 06: because somehow those delays have been rendered reasonable. [00:08:42] Speaker 03: So Your Honor, the government isn't arguing that the court's order in 2019 or in 2020 were, or the court's unreasonable delay determination 2019, excuse me, was flawed or is on appeal. [00:08:58] Speaker 03: It's not. [00:08:58] Speaker 03: That appeal is over. [00:09:00] Speaker 03: That was dismissed. [00:09:02] Speaker 03: What we have argued before the district court is that there are sufficient change circumstances that the district court should reopen the track analysis and make an unreasonable delay determination as of November 2022. [00:09:13] Speaker 03: The district court accepted that request. [00:09:16] Speaker 03: She looked back at track, she reweighed the factors, we disagree with the outcome, but she did agree to look at it. [00:09:22] Speaker 03: And so the question has become, [00:09:23] Speaker 03: Is there now a lack of an egregious delay of unreasonable delay such that there is an APA violation that can lead to a remedy? [00:09:34] Speaker 06: So any determination of unreasonable delay with respect to class members who joined the class after May 21st, 2020 is not before us. [00:09:52] Speaker 06: There's no injunction with respect to them because the adjudication plan doesn't apply to them. [00:10:01] Speaker 03: That is correct, Your Honor. [00:10:02] Speaker 03: But the class is defined as individuals who have submitted these applications and have been waiting for more than nine months. [00:10:10] Speaker 03: And so they are still in the class. [00:10:12] Speaker 03: And the question that we post to the district court is whether there is unreasonable delay for the class. [00:10:17] Speaker 06: She's waiting for a proposal of a modified adjudication plan [00:10:22] Speaker 06: that presumably would encompass those individuals. [00:10:25] Speaker 06: But when that's entered, then you can appeal that. [00:10:29] Speaker 06: But now what's before us is an existing plan that applies only to those class members who, as of May 2020, had already had their weight determined to be unreasonable. [00:10:43] Speaker 06: So anybody, any class member that joined later is not before us, are they? [00:10:52] Speaker 03: Yes, Your Honor, because I think there's- They are before us? [00:10:55] Speaker 03: Yes, Your Honor, because the distinction between the APA on reasonable delay, the legal violation on one hand, and then the injunction on the other, unless there is a continuing APA and reasonable delay after the court undergoes its Rule 54 analysis or 60, there can be no injunction. [00:11:13] Speaker 03: And so that comes from the APA itself, which says that action can be compelled only if there is unreasonable delay, [00:11:20] Speaker 03: And this court has noted in cases like in Ray Barr labs that even if after computing the track factors and coming out with an unreasonable delay determination, there is a reasonable delay. [00:11:31] Speaker 03: That still does not mean that there has to be a remedy, even in that. [00:11:35] Speaker 05: Let's just assume for purposes of argument away the new plaintiffs that have come into the class. [00:11:43] Speaker 05: Let's just talk about the plaintiffs who were there before as of the first district order and remain there because there are definitely those, right? [00:11:51] Speaker 05: And as to those, the determination was made in 2019 slash 2020 that the delay was unreasonable as to them. [00:12:00] Speaker 05: If they're still in the class, then the delay has only gotten longer, right? [00:12:05] Speaker 05: You don't dispute anything I've said so far. [00:12:08] Speaker 05: I don't dispute that. [00:12:09] Speaker 05: Yeah. [00:12:11] Speaker ?: Okay. [00:12:12] Speaker 05: My question is, because the government effectively didn't take an appeal of the initial determination, took the appeal but dismissed it. [00:12:19] Speaker 05: So do we just take as a given, for purposes of our assessing whether the district court erred in the order that you want us to review now, do we take as a given that it was correct to conclude that the delay was unreasonable as of the time that the district court entered its initial [00:12:36] Speaker 03: Two things to that, your honor. [00:12:37] Speaker 03: First of all, no, we believe that the court should not take that as a given. [00:12:41] Speaker 03: Our decision about the appeal is not acquiescence in the legal conclusions that the district court rendered. [00:12:48] Speaker 03: As far as the facts that she found that at one stage of the appeal, the chief of mission or comm stage, there were 30 to 60 months of delay at minimum, just at that one stage. [00:12:59] Speaker 03: That shows that there have been a general downward trajectory and average processing times to what they are [00:13:04] Speaker 03: today and last week's report, an average of 12 months for the Afghan program, 15 months for the Iraqi program. [00:13:11] Speaker 03: But what the court and the parties have been using throughout this case is just the average times. [00:13:18] Speaker 03: The district court did not ask for any other way to measure delay other than looking at the class as an aggregate. [00:13:25] Speaker 03: I mean, there's no, for example, subclasses here of individuals who were in the class at a certain time or anything like that. [00:13:31] Speaker 05: So looking at the class wide, without limiting the analysis to simply pre- What do you say about the people who were in the class before, who were already in the class, not the newcomers, but the people who are already in the class and who now are still in the class because they haven't had their application resolved? [00:13:50] Speaker 05: For them, it's only taken longer. [00:13:53] Speaker 05: That's just a physical fact about the world. [00:13:55] Speaker 05: It's only taken longer. [00:13:56] Speaker 05: But the remedy that you seek is that any oversight, any injunction should be eliminated even as to them, right? [00:14:07] Speaker 05: Because there is no unreasonable delay under the APA, yes, sir. [00:14:10] Speaker 05: And even though the delay was deemed to be unreasonable at time one, you didn't appeal that. [00:14:16] Speaker 05: And now we're at time two, which is longer. [00:14:19] Speaker 05: The average times are shorter here since then. [00:14:22] Speaker 05: We can talk about whether the average times are shorter. [00:14:24] Speaker 05: I mean, I don't know what the actual fix is to this. [00:14:26] Speaker 05: If the average doesn't take into account the people whose claims have yet to be resolved, I don't know how much information you get from that, because you're just eliminating the people whose applications have been pending the longest and who would raise the average if there were even a projection as to how long it might take as to them. [00:14:45] Speaker 05: If there's no number in there as to them, [00:14:48] Speaker 05: The fact that the average has gotten shorter with respect to the people whose claims have already been resolved only tells you so much. [00:14:53] Speaker 05: It might tell you something, but it only tells you so much because it could be that there's a ton of people whose claims are still out there and who are going to have to wait 40 years. [00:15:02] Speaker 05: And then you would still say, well, yeah, that's true, but the average has gotten shorter because if you only look at the people whose claims have been resolved, the time has gotten curtailed. [00:15:09] Speaker 05: That might be true, but if there's a ton of people out there whose claims are still pending 50, 60, 70 years down the line, the fact that the average has gotten shorter wouldn't give you a whole lot of solace. [00:15:21] Speaker 03: To that point, Your Honor, I would say two things. [00:15:23] Speaker 03: First of all, [00:15:25] Speaker 03: So the district courts use of the average times for everyone. [00:15:30] Speaker 03: We don't believe it's an abuse of discretion. [00:15:32] Speaker 03: And the class has not argued that it was. [00:15:34] Speaker 03: The agencies have implemented durable measures that should provide relief for everyone [00:15:40] Speaker 03: of the process. [00:15:41] Speaker 03: It's important that all applicants and they should be better positioned to receive a timely adjudication than they ever have been for given the improved average processing times. [00:15:51] Speaker 03: Um and before the district where he put forward evidence that, for example, the Afghan special immigrant visa unit is dedicating 20% of its processing time to some of the longest pending cases. [00:16:01] Speaker 03: And so the, uh, you know, agencies are aware of that. [00:16:05] Speaker 03: They are [00:16:11] Speaker 03: But track simply does not lead to a conclusion that there's unreasonable delay such that there can be any continuing injunction in this case. [00:16:23] Speaker 03: I see that I'm out of time. [00:16:24] Speaker 03: I'd like to reserve time for rebuttal unless your honors have other questions. [00:16:28] Speaker 05: I'm sure my colleagues don't. [00:16:30] Speaker 03: We'll give the other side. [00:16:30] Speaker 05: We'll give you some time for rebuttal. [00:16:38] Speaker 01: Ms. [00:16:38] Speaker 01: Hirose. [00:16:39] Speaker 01: Good morning and may please the court, Marika Hirase from the International Refugee Assistance Project for Plaintiff Appley's Afghan and Iraqi allies. [00:16:48] Speaker 01: Defendants began their presentation by confusing the standard of review for this court. [00:16:53] Speaker 01: The question for this court is whether the district court, with its familiarity of the voluminous record in this case, abused its discretion in refusing to terminate, wholesale, the injunction that it entered three years ago. [00:17:06] Speaker 01: In weighing the equities as required under any standard for reconsidering a prior decision, the district court properly considered defendants' arguments of changed circumstances with, on the other, the importance that Congress placed on the prompt adjudication of the SIV applications of Afghan and Iraqi allies whose lives are at risk because of their work for the United States. [00:17:31] Speaker 06: Here. [00:17:31] Speaker 06: So you're arguing that we should review for abuse of discretion, not de novo? [00:17:37] Speaker 06: But here, the district judge did take up the reconsideration request and at least check into the track factors. [00:17:47] Speaker 06: So there's an indication that we should look at that. [00:17:50] Speaker 06: I mean, our presidents say where the merits are in fact examined by the district judge, that we should review that as we ordinarily would de novo. [00:18:02] Speaker 06: Is that wrong? [00:18:03] Speaker 01: We understand the district court to have considered the defendant's arguments on reconsideration, but then upon reconsideration, decided not to, in fact, reconsider the prior summary judgment order or the injunction. [00:18:19] Speaker 06: I mean, one way of putting it is she reconsidered, but she confirmed her prior view. [00:18:24] Speaker 06: And I'm thinking about our case, the Connors versus Hallmark case. [00:18:28] Speaker 06: where the court says when the district court resolves a 54B motion on its merits, rather than by declining to consider the proffered change circumstances at all, then we do look at that de novo. [00:18:44] Speaker 01: I think it's somewhat of a thin line between how do you consider the arguments that are brought up in a motion for reconsideration and come to a decision on that. [00:18:54] Speaker 01: It seems that if the court had reconsidered the merits and granted the defendant's motion, for example, we would have seen a completely [00:19:05] Speaker 06: Different and if they had what the defense granted the defendant I guess I'm I'm wondering do you have a like a fresh what what would a threshold? [00:19:17] Speaker 06: Maybe this is a question for the government. [00:19:19] Speaker 06: What would a threshold determination not to revisit the track factors? [00:19:24] Speaker 06: look like under justice so requires [00:19:29] Speaker 01: It seems to me that the justice so requires standard gives district court quite a lot of discretion to go about the analysis in different ways. [00:19:37] Speaker 06: You argue that she didn't need to even dabble into the track factors the way she did. [00:19:41] Speaker 06: And I'm just trying to imagine if she hadn't, if she said, no, I'm not going to revisit this. [00:19:47] Speaker 06: What would she have considered? [00:19:50] Speaker 01: She could have considered each of the changed circumstances that defendants raised. [00:19:56] Speaker 01: and said none of these apply, none of these are tied to the injunctions beneficiaries, which is one of the flaws of their arguments. [00:20:04] Speaker 01: They are not bringing in statistics that are related to the injunctions beneficiaries. [00:20:13] Speaker 01: They are not showing how these other change circumstances actually affect the processing of the injunctions beneficiaries and could have denied an institution on that page [00:20:26] Speaker 01: Here, the court decided to also look at those changed circumstances as against the factors on the track analysis, which I think is also another way to go about this discretionary analysis that the court had before. [00:20:44] Speaker 05: If the if the test for whether it's an over or abuser discretion turns at least in some part on whether the motion is granted or not, which is, I think, one of the factors you pointed to in response to Judge Piller, she did grant relief in part, right? [00:20:57] Speaker 01: Was she stated that she would consider defendants arguments and did modify the injunction in part. [00:21:06] Speaker 01: That's the part that expands the injunction scope. [00:21:10] Speaker 01: But with respect to the actual termination of the injunction, which is what's on appeal, defendants appeal, [00:21:18] Speaker 01: the court rested on the prior decision to prior summary judgment analysis as well as the injunction that issued. [00:21:29] Speaker 05: But if the question is, is there enough engagement with the merits, based on those decisions that say that it's one thing if the district court decides not to entertain the motion at all, but it's another thing if the district court decides to entertain the motion and then wrestles with it on the law, the latter instance of which would occasion de novo review, the former instance of which would occasion abusive discretion review, here the fact that the motion was granted in part [00:21:53] Speaker 05: would seem to be indicative of an engagement of a kind if you buy that framework that would occasion de novo review rather than abusive discretionary review. [00:22:01] Speaker 05: I'm not saying that necessarily means that you can't still prevail. [00:22:05] Speaker 05: I'm just saying in terms of the way one would frame the inquiry, the fact that the district court granted relief in part would indicate an engagement with the merits of a kind that would potentially put it in the box of cases that would occasion de novo. [00:22:20] Speaker 01: Sure. [00:22:21] Speaker 01: On that, the question would be where to draw the line. [00:22:23] Speaker 01: And I think it's a tough question because in order to actually consider a defendant's arguments, this report may have to undertake different types of analysis, whether to grant or deny the motion for reconsideration. [00:22:37] Speaker 01: So it's [00:22:41] Speaker 01: possible. [00:22:42] Speaker 01: And here, the district court considered each of the factors that defendants based on reconsideration and said, actually, it does not change the analysis overall, the track factors. [00:22:54] Speaker 01: So we would argue that that's more on denying the reconsideration wholesale with respect to the termination of the injunction. [00:23:05] Speaker 06: Do you agree that no matter what the standard of review [00:23:09] Speaker 06: we apply that the district court's determination that the government unreasonably delayed acting on applications that had been pending nine or more months as of May 2020, that unreasonable delay is not before us. [00:23:30] Speaker 01: The decision from 2019, Your Honor, that is not before us. [00:23:36] Speaker 01: The question is the district court's determination on and its refusal to terminate that injunction. [00:23:45] Speaker 06: Right. [00:23:45] Speaker 06: So it's the original adjudication plan is what's before us and the district court's decision in light of the underlying unreasonable delay finding [00:24:00] Speaker 06: not to terminate the adjudication plan. [00:24:04] Speaker 06: And then on the current issue before us is whether intervening events have changed or should change that analysis. [00:24:15] Speaker 01: Absolutely. [00:24:15] Speaker 01: Yes, that's how I would frame the question. [00:24:18] Speaker 01: And Judge Pollard, as you were saying before, the purpose of that adjudication plan, the injunction, was and is to adjudicate that fixed universe of SIV applications that were pending as of [00:24:33] Speaker 01: three years ago, pending for over nine months. [00:24:36] Speaker 01: And there is no dispute that those cases remain to be adjudicated. [00:24:40] Speaker 01: Defendants stated that it might have been hard for them to put in those numbers, but they chose not to do so. [00:24:48] Speaker 01: And in fact, the injunction requires them to process those cases and report on the progress. [00:24:55] Speaker 01: So it really should not be that hard to do. [00:24:57] Speaker 06: do you have any sense of how many, other than the Iraqi applicants as to whom Mr. Pratt gave us a figure, how many of the Afghani applicants from the original that are subject to the adjudication plan remain pending? [00:25:17] Speaker 01: We don't. [00:25:18] Speaker 01: The latest report that we have is from July 2021 in [00:25:25] Speaker 01: And for that report, there were still thousands of applicants remaining even at earlier stages of processing. [00:25:33] Speaker 01: But because the induction has been staged since then, we have not been able to get more updated numbers. [00:25:42] Speaker 05: Those are thousands that not people who came in, not people who applied after the district court's initial ruling, those are thousands that remained [00:25:54] Speaker 05: that whose applications were pending at the time of this course initial rolling and remain pending? [00:26:01] Speaker 02: That's correct. [00:26:01] Speaker 02: Assume we review a renewed track determination as of the 54B ruling. [00:26:11] Speaker 02: Let's talk about factors one and two. [00:26:16] Speaker 02: The statute, it has a shall. [00:26:22] Speaker 02: um suggests something mandatory, but what follows the shall is a very open ended goal that would be hard to judicially enforce improve efficiency. [00:26:39] Speaker 02: And then it has something that's much more concrete than nine month target, but that's preceded by a should, which is generally aspirational. [00:26:51] Speaker 02: So you have an aspirational goal in a provision that operates in a context where executive discretion would, you know, we would presume it's preserved as much as possible given the national security and foreign relations overlay. [00:27:16] Speaker 02: Why would it be unreasonable [00:27:20] Speaker 02: Why is it unreasonable? [00:27:22] Speaker 02: If my numbers are right, as of 2022, the average delay is something like 587 days. [00:27:31] Speaker 02: And we have, we have Dacosta in a somewhat arguably similar context saying even four and a half years is not automatically too long. [00:27:49] Speaker 01: Sure, Judge Katz. [00:27:52] Speaker 01: I want to answer a couple aspects of your question, one about the nine month timeline and one about the average processing times that you are pointing to. [00:28:00] Speaker 01: At first, this court need not decide if the nine month timeline is mandatory or not. [00:28:06] Speaker 01: That's not what the district court decided. [00:28:09] Speaker 01: Rather, the district court looked at the context of that nine-month mark, including the shall earlier in that sentence, as well as the requirements that Congress imposed for reporting, to understand that Congress meant something when they said nine months. [00:28:24] Speaker 01: And that's enough to use it as a rule of reason for purposes of attraction. [00:28:30] Speaker 01: that there has to be a way to give meaning to what Congress said and repeat it again, even during the US withdrawal from Afghanistan. [00:28:41] Speaker 02: It means something, but means less than it would had Congress said the government shall complete adjudications within nine months. [00:28:54] Speaker 01: But the court and we are not asking for the adjudications to be completed in nine months. [00:29:01] Speaker 01: That's sort of water under the bridge. [00:29:03] Speaker 01: All of these applicants have been waiting already for nine months. [00:29:06] Speaker 01: And as to the 2020 injunction for three more years beyond that. [00:29:11] Speaker 01: I want to get to your reliance on the average processing times. [00:29:16] Speaker 01: As defendants' highlighting of the average processing times for the Iraqi applicants demonstrates, those numbers are meaningless generally. [00:29:27] Speaker 01: What their average processing time shows is what applications they adjudicated at a certain step in that quarter. [00:29:38] Speaker 01: and how long those applications were pending in that step during that quarter. [00:29:43] Speaker 01: And they do not process these applications on a first in, first out basis. [00:29:49] Speaker 01: So these average processing times, first of all, are not tied to the applications of the injunctions beneficiaries. [00:29:55] Speaker 02: And they... Let me make sure I understand. [00:29:58] Speaker 02: You're saying that that average time measures not [00:30:06] Speaker 02: government controlled steps within the meaning of the statute, some subset of that. [00:30:11] Speaker 01: No, it is government controlled steps, but it's it's not. [00:30:16] Speaker 01: It emits wait time. [00:30:19] Speaker 01: It emits wait wait time. [00:30:21] Speaker 01: So and they are not processing these applications first and first come. [00:30:25] Speaker 01: So if they process an application that came in during that quarter very quickly, that's going to show a very low average processing time. [00:30:35] Speaker 01: But that's not going to account for the fact that there may be applications of injunctions beneficiaries that are still in the waiting queue and have been. [00:30:44] Speaker 06: Am I right? [00:30:44] Speaker 06: I thought your first answer was going to be the average. [00:30:48] Speaker 06: Maybe this is already clear or maybe I'm wrong. [00:30:50] Speaker 06: That the average processing time is only given for those as to whom the processing is complete. [00:30:58] Speaker 06: Correct. [00:30:58] Speaker 06: Yes. [00:30:59] Speaker 06: So it's like if you have a whole bunch of [00:31:03] Speaker 06: You know kids who are you're teaching to read and you say on average I teach them to read within a month and you're only counting the people who you successfully taught to read. [00:31:12] Speaker 06: Then the average is not including people that you've been trying to teach for a year and a half. [00:31:19] Speaker 06: That's exactly. [00:31:20] Speaker 06: So it's it's basically cherry picking. [00:31:23] Speaker 06: and giving you the average of the cherry picked best, easiest to resolve? [00:31:27] Speaker 06: Yes. [00:31:28] Speaker 06: OK. [00:31:29] Speaker 06: And then within that, you said the average processing times are only looking at each step. [00:31:38] Speaker 06: So because, as Mr. Pratt said, the report is divided out step by step, and they're not recumulating to tell us the average total processing times of all the steps [00:31:51] Speaker 06: of one applicant within the government's control, it's basically a average processing time for a sub part of the overall process. [00:32:00] Speaker 06: So if I say, oh, the average processing time for Pillard's application was 14 days, it's 14 days at whatever step that part of the report speaks to. [00:32:11] Speaker 01: That's right. [00:32:12] Speaker 01: And that's how they get to 18 days or however many days for the Iraqi applications because there are no Iraqi applications now at the earlier stages. [00:32:22] Speaker 01: So they're not adding how long it took at the earlier stages for those applications to get to the current step. [00:32:30] Speaker 05: And even as to the current step, it doesn't include people who haven't passed through that step yet. [00:32:34] Speaker 01: That's right. [00:32:35] Speaker 05: It's the same problem as with the entire process generally that [00:32:39] Speaker 05: it excludes, from consideration of the average, people who haven't been processed, whether through the entire process, if you're looking at the end game, or through that particular step, if you're looking only at that step. [00:32:51] Speaker 05: Now, that does seem like a question. [00:32:54] Speaker 05: What's the utility of having an average if it doesn't count the ones that are still pending? [00:32:59] Speaker 05: But isn't it the case that the starting figure [00:33:05] Speaker 05: as to how long it was taking that gave rise to the remedy that you saw was also calculated that way? [00:33:12] Speaker 01: No. [00:33:13] Speaker 01: Those calculations were made by the calculations that plaintiffs submitted based on more granular data that was provided in discovery. [00:33:22] Speaker 01: And we were able to produce data that was specific to the class members and to calculate actual waiting time. [00:33:30] Speaker 05: So what did you do with the people then? [00:33:33] Speaker 05: Well, at that point, everybody's application was still pending. [00:33:36] Speaker 05: So how do you get an average processing time for somebody whose application is still pending? [00:33:40] Speaker 05: How long has it been pending as of that date? [00:33:42] Speaker 06: Yes. [00:33:43] Speaker 06: I see. [00:33:46] Speaker 06: And we don't now have that information. [00:33:48] Speaker 06: We don't have that information. [00:33:55] Speaker 05: Then is it fair to say that [00:33:58] Speaker 05: If you're comparing the average time at time one and then the average time at time two, the government's argument is the average time has been reduced, which is a sign of marked improvement. [00:34:09] Speaker 05: The average time at time one, it sounds like, was figures that you supplied that were based on how long applications had been pending as of that time. [00:34:18] Speaker 05: We don't have an average processing time for completing it because the applications hadn't been completed. [00:34:22] Speaker 05: All we had at time one was how long it had taken so far, an average how long it had taken so far. [00:34:28] Speaker 05: At time two, we're not talking about the ones that are still pending at all. [00:34:33] Speaker 05: We're only talking about the ones that have been completed. [00:34:36] Speaker 05: and based on the figures of the government, decided to show improvement. [00:34:40] Speaker 05: And so is it the case that we're not comparing apples to apples? [00:34:43] Speaker 05: It's not just the fact that the second apple in the apples to apple is flawed under your argument because it doesn't take into account applications that are still pending. [00:34:51] Speaker 05: It's that you're not comparing the same things from the starting figure and the ending figure. [00:34:55] Speaker 05: Is that true also? [00:34:56] Speaker 01: That is true. [00:34:57] Speaker 01: And defendants did submit their average processing times at the time of the initial summary judgment motion, but the court credited and relied on them. [00:35:09] Speaker 01: So those numbers are not the same. [00:35:15] Speaker 01: And this maybe goes back to the issue of how much into the merits the district court got. [00:35:21] Speaker 01: We did ask that if the district court were going to go into the merits and actually reconsider it, that we would be given our fuller record of evidence. [00:35:34] Speaker 01: The court did not need, it decided that that was not needed, that it could decide based on the arguments presented, that there was need to revisit. [00:35:43] Speaker 01: the determination that it previously was an injunction at issue. [00:35:48] Speaker 05: But then that's with respect to whether the injunction is going to be eliminated altogether. [00:35:51] Speaker 05: But with respect to the remaining proceedings before the magistrate judge, there still could be discovery, I take it, about whether the parameters of the original decree ought to be modified to take into account some of the developments that the government has pointed to. [00:36:07] Speaker 01: Yes, Your Honor. [00:36:08] Speaker 01: And there has been discovery. [00:36:09] Speaker 01: And those proceedings are pending. [00:36:12] Speaker 06: Let me just circle back and pin down. [00:36:15] Speaker 06: I struggled a bit with this whole question of the appropriate standard of review. [00:36:20] Speaker 06: And you argue that we should look at this as if it's a Rule 60B and motion to terminate injunctive relief. [00:36:27] Speaker 06: On your theory, does Rule 60B apply to a motion to terminate a preliminary injunction? [00:36:32] Speaker 01: No, I don't believe so, because 60B speaks of final judgments and orders. [00:36:39] Speaker 01: This injunction is a permanent injunction. [00:36:41] Speaker 01: It's final. [00:36:42] Speaker 06: Except that the context in which it comes up is interlocutory. [00:36:48] Speaker 06: We don't have a final judgment in the whole case. [00:36:50] Speaker 06: And so the reason that there's jurisdiction for appeal is 1292A, and it's coming up because it's a mid-case order [00:37:02] Speaker 06: injunctive order and presumably preliminary injunction would fall in that category, but so does this known. [00:37:14] Speaker 01: Well, it is this this motion. [00:37:17] Speaker 01: This appeal is me is only coming up on a motion on a refusal to dissolve injunction. [00:37:26] Speaker 01: Of course, there is a basis for that. [00:37:29] Speaker 01: And the words that are used in each of those sections are slightly different. [00:37:33] Speaker 01: So it's a final decision for purposes of appeal. [00:37:37] Speaker 01: The CB speaks of final judgment, orders, and proceedings, which is quite a lot broader than what Rule 54A actually defines judgment in terms of [00:37:53] Speaker 01: So the injunction was appealable. [00:37:57] Speaker 01: The permanent injunction was appealable at that time, and it was final in the sense that it was entered after a summary judgment order. [00:38:03] Speaker 05: But it was appealable not under 1291. [00:38:05] Speaker 05: It was appealable under 1292A1. [00:38:10] Speaker 01: Well, this court did not decide that question on the prior appeal. [00:38:15] Speaker 05: Do you think that that could have been appealed under 1291? [00:38:18] Speaker 05: as a final? [00:38:19] Speaker 01: Possibly, it speaks to final decisions. [00:38:23] Speaker 01: Again, there's some tension, in the words, between these different rules. [00:38:30] Speaker 01: And I could not find a case that was exactly on point for this procedural posture. [00:38:38] Speaker 01: We would say that whether Rule 54B or Rule 60B applied, they both [00:38:43] Speaker 01: in terms of equities, and they're intended to give the district flexibility to revisit prior orders. [00:38:50] Speaker 01: With Rule 54B being more flexible and Rule 60B being slightly more limited. [00:38:55] Speaker 01: So there was no legal error or no abuse of discretion in the district court holding that regardless of which standard applied, the outcome would be the same. [00:39:08] Speaker 01: I wanted to go back. [00:39:10] Speaker 01: Sorry, go ahead. [00:39:12] Speaker 02: Go ahead. [00:39:13] Speaker 02: How could it be? [00:39:13] Speaker 02: How could it be appealable through 1291? [00:39:17] Speaker 02: The case is not over and the injunction is not collateral to the merits. [00:39:22] Speaker 02: It is the merits. [00:39:24] Speaker 01: But so we're in this procedural posture of having a permanent injunction that was issued in mid case. [00:39:31] Speaker 01: And so I think the question is, um, what is what are the right rules that apply in that circumstance? [00:39:39] Speaker 05: But it's a permanent injunction. [00:39:40] Speaker 05: It is a permanent injunction. [00:39:42] Speaker 05: It's not a preliminary injunction. [00:39:44] Speaker 05: But it's a permanent injunction as to one claim in an action that has more than one claim. [00:39:49] Speaker 05: And that just seems like that's classically a Rule 54 part land where you have one claim that's resolved, other claims that haven't been. [00:39:57] Speaker 05: And what 54 says is, unless the district court does the certification as to that one claim, then the case remains pending. [00:40:06] Speaker 05: Now, it's still appealable because every injunction is appealable, whether preliminary or permanent, under 1292.81. [00:40:13] Speaker 01: It just leads to an awkward result to apply a rule 54B, because otherwise the victorious party would have to apply for an unnecessary rule 54B certification in order to achieve finality. [00:40:25] Speaker 01: And it would also allow defendants to revisit that order on a lower standard, even after the final injunction has been [00:40:36] Speaker 01: has gone into effect, that they've started complying with it. [00:40:40] Speaker 01: All of the reliance interests have started to take place. [00:40:44] Speaker 06: Except it goes the other way, too. [00:40:45] Speaker 06: If the defendant is having to comply with it, if it's rendered final, then it seems like having a prompt opportunity under de novo review to appeal whatever the question is, that that's the time to do it. [00:40:59] Speaker 06: Otherwise, they effectively lose the opportunity for the de novo scrutiny. [00:41:05] Speaker 01: Sure, and there's no question that they have the opportunity to appeal at the time that they did, and they decided not to pursue it. [00:41:11] Speaker 01: The question is when, even though they have that opportunity, they move to reconsider that permanent injunction. [00:41:19] Speaker 01: Should the more stringent standards of Rule 60B apply or the more flexible standards? [00:41:25] Speaker 01: It's an interesting question. [00:41:27] Speaker 01: I don't think the panel needs to reach that question here because the district court did not reach it and decided that even under the more flexible standards, there was no need to revisit the prior decision. [00:41:42] Speaker 01: And he could go back to the cost for a moment and because I know just cats is mentioned that case. [00:41:48] Speaker 01: And there are a couple of differences between this case and the other and and one is really that Congress took a rare step here of specifying a timeline for the education of an immigration application. [00:42:01] Speaker 01: Knowing that it implicates national security interests on both sides, because also following through on our promises to our wartime allies is important. [00:42:14] Speaker 01: And Congress has repeatedly reiterated that timeline, including through the change circumstances that defendants claim. [00:42:21] Speaker 01: And the other difference is that this case is structured and has been structured from the beginning to avoid the line jumping concerns that this court has expressed in a number of unreasonable delay cases. [00:42:36] Speaker 01: What the court issued was a practical and flexible remedy that allows the government to explain any failures to meet performance standards. [00:42:45] Speaker 01: And it was a remedy that was crafted from the beginning to balance the change circumstances that might arise as the injunction takes effect. [00:42:55] Speaker 01: We asked the court to affirm the district court decision for these reasons, and we further respectfully request the court's prompt decision on appeal as the injunction is currently stayed and injunctions beneficiaries deserve a meaningful remedy as soon as possible. [00:43:14] Speaker 06: Thank you. [00:43:14] Speaker 06: Let me just ask you, you said that the remedy was structured to avoid the line jumping problem because there is no first in, first out line in this case. [00:43:25] Speaker 06: But that also seems like that's been problematic because the government is in effect cherry picking and processing a lot of the easier cases. [00:43:33] Speaker 06: And some of the longest standing, longest languishing SIV applicants remain languishing. [00:43:40] Speaker 06: That's just in the nature of the relief. [00:43:44] Speaker 01: That affect defendant's presentation of the facts. [00:43:49] Speaker 01: We are fine with defendants prioritizing in the way they want to as long as they are processing these cases to a prompt adjudication as required by the injunction. [00:44:04] Speaker 05: Thank you, Ms. [00:44:04] Speaker 05: Jerez. [00:44:06] Speaker 05: We'll give the government, Mr. Patel, three minutes for rebuttal. [00:44:14] Speaker 03: Thank you, Your Honors. [00:44:15] Speaker 03: The agencies are proud of the improvements they have made in processing times, and the district court called them, quote, auto. [00:44:22] Speaker 03: I want to emphasize, though, that track is about so much more than just the bottom line processing times. [00:44:29] Speaker 03: This court also has to consider as part of the flexible rule of reason why the agencies are taking the time that they are. [00:44:38] Speaker 03: The district court made findings about, quote, an array of diplomatic, logistical, and other hurdles, and, quote, pertaining to conducting interviews abroad, especially with the fall of Kabul and the suspension of diplomatic and consular operations by the United States in Afghanistan. [00:44:55] Speaker 03: Because of the fall of Kabul, [00:44:56] Speaker 03: the district court found that case inquiry surged 816% and the number of cases grew by 443%. [00:45:04] Speaker 03: This is on page 996 of the JA. [00:45:08] Speaker 03: As a result, the district court found that the government's task had undoubtedly become more difficult. [00:45:14] Speaker 02: And that's in addition to other difficulties that the district court recognized such as... She was very sensitive to your concerns and she made clear that [00:45:24] Speaker 02: All of that will count in your favor when you go back and work out the details of a new plan. [00:45:32] Speaker 02: Why is that an abuse of discretion? [00:45:35] Speaker 03: Well, we would respectfully disagree that it's abuse of discretion is the standard here. [00:45:40] Speaker 03: It would be de novo. [00:45:41] Speaker 03: And on these facts, the result that the district court should have reached is that there is no APA unreasonable delay. [00:45:48] Speaker 02: Why is it de novo? [00:45:50] Speaker 02: Assume I agree with you. [00:45:53] Speaker 02: that she redid the track analysis. [00:45:57] Speaker 02: And then we just have an appeal from a finding of unreasonable delay. [00:46:04] Speaker 02: But that finding reflects a balancing of all these fact-intensive considerations that are cutting in opposite directions based on a record developed in the district court. [00:46:19] Speaker 02: That feels like the kind of thing we would review deferentially. [00:46:24] Speaker 03: So your honor, and we do maintain that the district court picked up our motion below and adjudicated it. [00:46:31] Speaker 03: There was no denial of discretion to reconsider the motion. [00:46:35] Speaker 03: The court, for example, did not say that justice doesn't require. [00:46:39] Speaker 03: I agree with you. [00:46:40] Speaker 02: I'm just saying that our review might be discretionary, even assuming she redid the track. [00:46:46] Speaker 03: So we believe that it's [00:46:47] Speaker 03: De novo because track cases are reviewed de novo. [00:46:50] Speaker 03: I mean, that comes from cases like Cobell versus Norton. [00:46:53] Speaker 02: And under the Trebel C. De novo said the statement of the legal standard is de novo. [00:47:00] Speaker 02: OK, she stated the six factors from track. [00:47:02] Speaker 02: She correctly stated the legal standard. [00:47:05] Speaker 02: And then we have a mixed question of whether she correctly applied it. [00:47:10] Speaker 02: To this record. [00:47:13] Speaker 02: I'm not sure the mixed question has to be de novo. [00:47:16] Speaker 03: So we believe that on balance, everything put together points to a finding of, or excuse me, a conclusion that there is no unreasonable delay. [00:47:24] Speaker 03: I think most notably with factor two, which this court can and should pick up and review de novo, whether the court correctly interpreted the acts and how the nine month timetable was used in those acts. [00:47:38] Speaker 03: I mean, just from the very first page of the memorandum of opinion on page 989 of the joint appendix, the court identifies the classes, those people being [00:47:46] Speaker 03: quote, pending for more than nine months despite Congress's instruction that they should be processed within that time. [00:47:52] Speaker 03: And then the nine, end quote, the nine months figure recurse around this decision. [00:47:56] Speaker 03: But the court as- She didn't say it was mandatory. [00:48:03] Speaker 02: She gave it effect [00:48:07] Speaker 02: sort of softer effect as ruler. [00:48:09] Speaker 02: She said that cuts against you, but as one factor of many, and she balanced that against everything else in the case. [00:48:23] Speaker 03: So we believe that that balancing was reversible error. [00:48:27] Speaker 03: Because if this was truly construed as it is, which is just a precatory deadline in light of the should, the fact that it's coupled with the shall improve efficiencies language, the section saying that in national. [00:48:39] Speaker 06: You're trying to ask us to review the unreasonable delay determination underpinning the, excuse me, existing adjudication plan. [00:48:51] Speaker 06: I thought that's not before us. [00:48:53] Speaker 06: You abandoned the appeal on that. [00:48:55] Speaker 06: You had a 60-day time frame in which to appeal that. [00:48:59] Speaker 06: You didn't appeal that. [00:49:00] Speaker 06: So the only thing you're appealing is the effort to modify the plan, the adjudication plan, not the underlying determination of unreasonable delay. [00:49:11] Speaker 03: So we are not challenging the injunction under Rule 54B. [00:49:15] Speaker 03: We are challenging under Rule 60B that it's not in the public interest to maintain that injunction, even under a stay or to entertain any forthcoming injunction. [00:49:25] Speaker 03: But under Rule 54B, the question is, have the circumstances changed such that in November 2022, there is unreasonable delay as measured through track? [00:49:36] Speaker 03: And the answer to that is no. [00:49:40] Speaker 03: Given that you have a precatory nine month figure, you have average processing times which are getting very close to and at some points were at about nine months. [00:49:50] Speaker 03: And then you have everything else, the competing priorities, which the district court did recognize. [00:49:57] Speaker 03: You have, she didn't find, for example, that those weren't actually things. [00:50:01] Speaker 05: The average is close to nine months because that's the average for all the new applicants that come into the class afterwards. [00:50:08] Speaker 05: But suppose that it's a fact about the world that the existing class members, if things stay as they are, the pre-existing class members, if things stay as they are, wouldn't have their applications resolved for 50 years. [00:50:21] Speaker 05: Well, like the injection ought to be dissolved wholesale. [00:50:25] Speaker 03: I would say, Your Honor, that under track, simply missing a statutory deadline, even if it is a deadline, let's assume, is not enough. [00:50:34] Speaker 03: There is no per se point. [00:50:35] Speaker 03: This court has said in cases like Henry, I agree that that may well be right. [00:50:40] Speaker 05: But I'm just giving you a hypothetical where there's, and we'll just take it as a given that there's thousands on the Afghani side who are continuing to apply and their applications, if things just stay where they are, are not going to be completed. [00:50:53] Speaker 05: And there's no oversight. [00:50:54] Speaker 05: They're not going to be completed for 50 years. [00:50:57] Speaker 05: Does the fact that the new applicants have their average processing time at nine months, and I'll just take as a given that it's actually nine months, that does that mean that the injunction ought to be dissolved? [00:51:08] Speaker 03: If there are applicants waiting 50 years, Your Honor? [00:51:11] Speaker 03: Yeah. [00:51:12] Speaker 03: I would say I can't answer that question because what we would need to see is the reasons why. [00:51:17] Speaker 03: All of the other track factors to see an explanation for what challenges are the agencies facing? [00:51:22] Speaker 03: What are they doing to adjudicate these applications? [00:51:26] Speaker 03: Are they acting in good faith? [00:51:27] Speaker 03: What is the harm to individuals affected by the agency's [00:51:31] Speaker 05: But in a case in which we already know that as of the first time when the applications had already been pending for some number of years, a decision was made that was unreasonable and the government didn't take an appeal. [00:51:43] Speaker 05: And so then all we're talking about is whether things have changed so significantly that the entire injunction ought to be [00:51:49] Speaker 05: And what I'm saying is, if the basis for saying that the entire injunction ought to be eviscerated, even though there was no appeal taken the first time, is that with respect to new applicants, the time frame is nine months, but with respect to the applicants that were already in the pipeline and have already been there, nothing has changed. [00:52:05] Speaker 05: and that their application is going to remain pending for decades unless the court maintains oversight. [00:52:11] Speaker 05: That seems like a lot to accept that you ought to just look at the new applicants and say, well, the time frame is nine months. [00:52:17] Speaker 05: And therefore, you ought to eliminate the injunctive relief even as to applicants whose claims had been pending at the time that the initial order was entered and remain pending and will remain pending for a long, long time, but for district court oversight. [00:52:30] Speaker 03: Well, what I would say, Your Honor, is that if we're at the point where people are waiting for [00:52:34] Speaker 03: an average of 50 years, we would want to look at why that is occurring. [00:52:40] Speaker 03: If there's no good reason, and maybe there is, maybe there will not be at that point, then there would be an APA on regional delay conclusion. [00:52:50] Speaker 03: And then the district court could consider whether to issue remedy. [00:52:54] Speaker 03: It's under NRABAR labs, just because there's an APA on regional violation does not mean that a remedy must issue. [00:53:04] Speaker 03: that there is going to be per se an APA violation. [00:53:12] Speaker 03: Um. [00:53:14] Speaker 03: What I would also add is that in interpreting [00:53:17] Speaker 03: the nine-month figure in the acts. [00:53:20] Speaker 03: In comparing this case to DeCosta, DeCosta also did have a sense of Congress provision that talked about 8 USC 1571B, which says that it's the sense of Congress that certain immigration applications should be adjudicated within 180 days. [00:53:34] Speaker 03: And any delay beyond that was not enough for this court to hold it. [00:53:39] Speaker 06: There was a line-jumping problem there. [00:53:40] Speaker 06: If the whole process is moving slowly and there is a commitment [00:53:46] Speaker 06: in that case, by the agency to, in fact, the rule of reason was first in, first out. [00:53:54] Speaker 06: And so if the court then says, well, oh, well, you sued. [00:53:56] Speaker 06: I'm going to put you in the front of the line. [00:53:58] Speaker 06: That doesn't actually fix the overall problem, does it? [00:54:01] Speaker 06: So it's a very different situation from here, where there's an adjudication plan and the government retains latitude to effectively cherry pick and put through the people who can be dealt with quickly, even as it delves more deeply into the people who's [00:54:17] Speaker 06: whose case is lying, which seems like that's a pretty significant difference. [00:54:23] Speaker 03: That is definitely one part of the cost of that is not reflected here that the time interpreting that what Congress has said about timing, I think, is relevant. [00:54:32] Speaker 03: And the concern about line jumping, I think, is also why average processing times for everyone [00:54:38] Speaker 03: is it was a reasonable thing that the district court did as opposed to looking at subclasses of individuals who should be able to go first. [00:54:46] Speaker 03: But again, to be absolutely clear, there is a lot more factors at play here, including competing priorities, you know, all the other factors of track beyond just what the bottom line. [00:54:55] Speaker 03: the numbers are. [00:54:56] Speaker 03: And Chief Judge Srinivasan, if I may address your point about, with how you had said in the 50-year hypothetical, and there not being any oversight, Congress is watching this program. [00:55:07] Speaker 03: Congress has continually amended the acts to change the eligibility requirements, sometimes make it stricter, oftentimes to make them more easier for individuals to qualify. [00:55:18] Speaker 03: They've increased the number of visas available through the program. [00:55:21] Speaker 06: And Mr. Platt, even though the plan has stayed, the executive is continuing to process these [00:55:25] Speaker 06: applications, is it not? [00:55:26] Speaker 03: Oh, absolutely. [00:55:28] Speaker 03: And so the Congress is watching this program and has access to these reports that the agencies, regardless of any injunction, are required by federal law to create and post on their websites, in which they do, in fact, as recently as last week. [00:55:45] Speaker 03: Are there any other questions? [00:55:47] Speaker 03: Thank you. [00:55:47] Speaker 03: Thank you. [00:55:48] Speaker 05: Thank you for your argument, counsel. [00:55:49] Speaker 05: Thank you to both counsel. [00:55:50] Speaker 05: We'll take this case under submission.