[00:00:00] Speaker 00: Case number 23-5149, J. Gregory Siedek versus United States International Trade Commission et al. [00:00:08] Speaker 00: at balance. [00:00:09] Speaker 00: Mr. Solzman for the balance, Mr. Landau for the appellee. [00:00:22] Speaker 02: Whenever you're ready. [00:00:23] Speaker 02: Thank you. [00:00:25] Speaker 02: Good morning and may it please the court, Joshua Salzman on behalf of the International Trade Commission. [00:00:30] Speaker 02: The district court here committed a series of errors in entering an injunction that will prevent the commission from even determining whether plaintiff Gregory Sidak improperly retained the confidential business information of private companies like Apple and Intel in violation of a voluntarily assumed obligation. [00:00:50] Speaker 00: if I can ask you a question at the threshold. [00:00:53] Speaker 00: Is it the ITC's position that this investigation is based solely on the protective order? [00:01:02] Speaker 02: Uh, so I think it, the enforcement here is predicated on the, uh, on the protective order, but the protective order goes hand in hand and is only applicable to Mr. Side Act because of his separate agreement signed three months later in November of 2017 when he signed that acknowledgement that you can find at J 48 investigation with respect to whether sanctions should be imposed is based on the protective order solely on the protection. [00:01:32] Speaker 02: I agree that under the Commission regulations that form the basis for the investigation here, what he is being investigated for, and I do want to emphasize that we are still just at the preliminary phases of that investigation. [00:01:47] Speaker 02: is a possible breach of the protective order. [00:01:50] Speaker 02: But I don't think you can analyze the protective order in a vacuum without recognizing that the reason we are here is because when that protective order issued in August of 2017, it had no adverse impact on Mr. PsyDAC. [00:02:05] Speaker 02: But I know the merits. [00:02:06] Speaker 00: Sorry. [00:02:07] Speaker 00: I just want to follow up to that. [00:02:08] Speaker 00: So I just want to be just clear that the ITC is not relying on [00:02:16] Speaker 00: You know, the fact that Mr. Sidek may have violated some separate statutory or regulatory requirement that the investigation is based solely on the violation of the protective order. [00:02:27] Speaker 02: That is how the letter from the commission secretary is framed. [00:02:30] Speaker 00: It is framed in terms of the protective order. [00:02:32] Speaker 00: You are not claiming any broader. [00:02:35] Speaker 00: investigative authority. [00:02:37] Speaker 00: Yes, I think that's actually quite important. [00:02:40] Speaker 02: And I'm happy to engage on that and try to explain to you why I think under the fact here. [00:02:46] Speaker 03: But I was just asking what is the merits aren't directly before us. [00:02:52] Speaker 03: But what is the government's colorable argument for [00:02:58] Speaker 03: being able to have a proceeding whose sole purpose is to enforce an order entered by an unconstitutionally appointed ALJ. [00:03:11] Speaker 02: You know, I think it sounds shocking when you say the order is unconstitutional. [00:03:16] Speaker 02: It has a lot of shock value. [00:03:17] Speaker 02: But it's actually much less remarkable than you might think. [00:03:20] Speaker 02: So even the district court here, for example, seem to assume that this order could still be enforced against Apple in [00:03:28] Speaker 02: And for example, in the Rider case, the Supreme Court held that military judges were unconstitutionally appointed. [00:03:35] Speaker 02: It provided a remedy to the plaintiff there. [00:03:37] Speaker 02: It said there were probably going to be seven to 10 additional cases that would be affected by its ruling. [00:03:43] Speaker 02: But the court suggested that habeas claims by people whose cases had otherwise become final would almost surely fail. [00:03:51] Speaker 02: And the reason is because for non-jurisdictional defects, like an appointments clause defect, [00:03:55] Speaker 02: finality has always been understood to continue to severely restrict [00:04:02] Speaker 02: the scope of available relief. [00:04:03] Speaker 02: And with good reason, the Supreme Court has recognized for hundreds of years that it would be horribly disrupted if a defect in title could somehow unsettle long settled expectations. [00:04:15] Speaker 02: And I think that's particularly true here with the reliance interests. [00:04:18] Speaker 03: So that then, I guess, comes back to the argument you did make about untimeliness. [00:04:29] Speaker 03: And he should have teed this up [00:04:31] Speaker 03: We've got two different proceedings, right? [00:04:33] Speaker 03: One is Qualcomm versus Apple before an unconstitutionally appointed ALJ. [00:04:41] Speaker 03: The other one is ITC versus CIDAC for some sort of enforcement action before a lawfully constituted ITC. [00:04:55] Speaker 03: That's right your honor, but I first of all on the marriage week very odd. [00:04:59] Speaker 03: I this is a really odd to imagine if that's the right ways thinking about it, you know the witness the expert witness sort of has an obligation to raise the appointments clause issue in the first. [00:05:16] Speaker 03: proceeding. [00:05:17] Speaker 02: So there, I want to distinguish between two different merits arguments we've made since we seem to have. [00:05:23] Speaker 02: And I'm fine with this. [00:05:24] Speaker 02: We seem to have skipped over the rightness argument on the yeah, come back. [00:05:28] Speaker 02: We'll come back to that. [00:05:28] Speaker 02: I know. [00:05:29] Speaker 02: But I want to distinguish between two arguments because they have different implications. [00:05:34] Speaker 02: One is sort of a forfeiture. [00:05:36] Speaker 02: You might think of it as a consent argument. [00:05:38] Speaker 02: In November, when he signed that agreement, in November of 2017, when he signed it, he agreed in his own words, he'd read the protective order and agreed to abide by his terms. [00:05:50] Speaker 02: At that point, [00:05:51] Speaker 02: He voluntarily relinquished any challenge having to abide by the restrictions. [00:05:58] Speaker 02: And remember, he was doing that because he wanted to benefit. [00:06:00] Speaker 02: He wanted access to confidential information that he was otherwise statutorily barred from receiving. [00:06:06] Speaker 02: He wanted to be able to earn a fee as an expert witness for Qualcomm. [00:06:11] Speaker 02: And in order to get the documents necessary to perform that function, he had to agree to abide by reasonable safeguards to ensure that they were only used for proper purposes. [00:06:20] Speaker 02: So that's argument one. [00:06:21] Speaker 00: I have a question about that, which is where does the authority come then to bind Mr. Sidak? [00:06:29] Speaker 00: Is it from his consent or is it from the protective order that was issued by the ALG? [00:06:34] Speaker 02: I would say it comes from his consent. [00:06:36] Speaker 02: It comes from, well, the protective order. [00:06:38] Speaker 02: So at the time that the protective order was issued in August of 2017, it did not bar Mr. Sidak from anything. [00:06:46] Speaker 02: There was a statute. [00:06:47] Speaker 02: There was a statutory backdrop. [00:06:49] Speaker 00: that applies to anybody who participates in the proceeding. [00:06:53] Speaker 00: And then the order itself requires people who participate to sign a letter of acknowledgement. [00:06:58] Speaker 00: But the order by its terms, even without a letter of acknowledgement, would apply to an expert like Mr. Seideff. [00:07:06] Speaker 00: It seems to me. [00:07:08] Speaker 02: Well, you start from a statutory backdrop, right? [00:07:10] Speaker 02: I think it's important to understand that the protective orders are rising against the backdrop of Section 1337N. [00:07:16] Speaker 02: That's a categorical prohibition on sharing confidential information disclosed to the Commission, except as authorized by the protective order. [00:07:27] Speaker 02: So the protective order is in some case, you could characterize it as the permission slip. [00:07:32] Speaker 02: You would be barred that Qualcomm would have been barred from sharing Apple and Intel's information with Mr. SIDAC, but for the protective order. [00:07:42] Speaker 02: And the protective order provides a mechanism that allows for sharing, but also, as one would reasonably expect, imposes reasonable conditions as only use it for purposes of this investigation, keep the material safe, [00:07:54] Speaker 02: destroy or return it at the termination of the proceeding. [00:07:57] Speaker 02: And anybody who wants the benefit of being able to take advantage of that authorization, that exception to the statute, the mechanism for sharing information, has to agree to abide by reasonable terms. [00:08:09] Speaker 02: And that's right. [00:08:10] Speaker 06: You should be going after Qualcomm, not CIDAC. [00:08:16] Speaker 02: Well, I don't think that's right under the circumstances here because Mr. Sidak made representations. [00:08:22] Speaker 02: Everybody reasonably relied on the representations that he would abide by the conditions that went hand in hand with his receipt of that information. [00:08:29] Speaker 06: But as a legal matter, the conditions are void. [00:08:33] Speaker 06: There never were any conditions. [00:08:35] Speaker 06: It was as if something called a protective order was issued by four or five random people in the phone book, and they called it an ITC protective order. [00:08:43] Speaker 02: I think, right? [00:08:45] Speaker 02: I actually don't agree with that, Your Honor. [00:08:47] Speaker 02: And the reason I would say that is because appointments caused defects are non-jurisdictional. [00:08:53] Speaker 02: They certainly can be a basis, when timely raised, for setting aside governmental action. [00:08:59] Speaker 02: But it is not that as if they never occurred or that an order taken by an improperly appointed official can never be given legal effect, even years later and when first challenged through a collateral action. [00:09:13] Speaker 02: I think Mr Side Act here had the opportunity to raise the issue to the commit. [00:09:21] Speaker 03: I mean, so you're trying to separate the consent and voluntariness aspect of your merits argument from your consent aspect from the timeliness aspect. [00:09:37] Speaker 03: I think those are two separate arguments. [00:09:39] Speaker 03: OK, so on the voluntariness point, I mean, if a private party goes to work for the government, wants to earn a living like this guy, and is forced to sign a non-disclosure agreement to get access to classified information or government information or whatever, right? [00:10:07] Speaker 03: person is not thereby barred from bringing a First Amendment challenge to argue that the nondisclosure is overbroad or whatever, right? [00:10:19] Speaker 03: So consent can't bar the constitutional challenge to the governmentally imposed nondisclosure. [00:10:28] Speaker 02: Well, I think that's I don't want to speak in such categorical terms because, for example, in CFTC versus shore and then the federal circuit has a couple of cases involving their inter partes review scheme that we've cited the Sienna Corp and the valve case when you seek out. [00:10:46] Speaker 02: a particular judicial forum, sometimes that can go hand in hand with relinquishing a constitutional challenge. [00:10:53] Speaker 02: And that's to defeat sandbagging. [00:10:55] Speaker 03: I'll refine it just a little bit. [00:10:56] Speaker 03: Doesn't automatically, the fact of the voluntary aspect of this is not always a showstopper. [00:11:08] Speaker 02: I'm not going to say it's always dispositive, but I'm saying in analogous circumstances. [00:11:12] Speaker 03: It seems a little different, the litigant [00:11:15] Speaker 03: who goes to the ITC seems a little different from the expert who's, and this is what he does, he supports clients wherever they are. [00:11:30] Speaker 02: Uh, fair enough. [00:11:32] Speaker 02: He voluntarily chose this engagement. [00:11:34] Speaker 02: He voluntarily chose to put his name on a document where he assured the commission insured Apple and Intel that he would abide by some reasonable restrictions to safeguard that information. [00:11:45] Speaker 03: Qualcomm have gone to an article three or other tribunal or just sort of proceeding only go to the I. T. C. [00:11:56] Speaker 02: Um, this sort of the specific remedy that qualcomm was seeking this this was patent infringement litigation that's obviously certainly the kind of issue that can be brought in district court, the ITC offers a particular remedy which is an exclusion order, essentially, all of the iPhones would have been stopped at the border seems a little. [00:12:16] Speaker 03: aggressive to say, Oh, they made it. [00:12:19] Speaker 03: They made a choice to go to the forum with the questionably appointed judge. [00:12:26] Speaker 03: So tough luck. [00:12:28] Speaker 03: So that's the form that Congress has made available for this kind of [00:12:33] Speaker 02: And I think that's that's qualcomm. [00:12:35] Speaker 02: I think we can separately think about Mr side act here, who chose to take an engagement and chose to accept access to certain documents on certain reasonable conditions. [00:12:44] Speaker 02: And once Apple and Intel have relied on those representations and relied on the fact that the commission will be there to enforce [00:12:52] Speaker 00: the security as congress intended through 1337 n let me ask you about one of itc's other regulations though about sanctioning non-signatories to protective orders right so that regulation provides that ordinarily if someone is not a signatory they can't be held to violate a protective order however if there's good cause shown even a non-signatory [00:13:16] Speaker 00: can be sanctioned for violating a protective order. [00:13:21] Speaker 00: So doesn't that suggest that the protective orders are doing, have some authority or some legal force absent the consent of a person who's a signatory to the protective order? [00:13:32] Speaker 00: I mean, because you can apparently, the ITC can sanction someone who's a non-signatory. [00:13:36] Speaker 02: Yeah, and that may well be. [00:13:39] Speaker 02: We've relied here on his status as a signatory, which I think makes this [00:13:43] Speaker 02: At least a much easier case. [00:13:45] Speaker 00: I understand that that's the government's litigating position, but it doesn't tell us where the authority comes from. [00:13:51] Speaker 00: Because if the protective order is the thing that is doing the work, and that was issued by a non-constitutional ALJ, that's a problem. [00:14:00] Speaker 00: If the consent is what's doing the work, then maybe, of course, it might be less of a problem. [00:14:06] Speaker 00: But it seems like on the ITC's own terms, they're recognizing that the protective orders have legal authority separate from consent. [00:14:13] Speaker 02: So if you're asking where the statutory authority to to issue these are and to enforce them. [00:14:19] Speaker 02: I'd refer the court to 19 USC 1335, which is a broad delegation of rulemaking authority and then 1337 and which I've referenced several times and specifically contemplates [00:14:30] Speaker 02: that the commission will establish regulations and procedures for promulgating protective orders. [00:14:36] Speaker 02: Because otherwise, that's the only mechanism through which you have an exception to 1337N's otherwise categorical bar on the disclosure of the information. [00:14:45] Speaker 00: I'm not suggesting they didn't have authority to issue the protective order. [00:14:49] Speaker 00: I mean, in a statutory sense. [00:14:53] Speaker 00: But if the protective order is what is binding on Mr. Sidak in that order, [00:14:59] Speaker 00: was issued without constitutional authority, then that's a problem. [00:15:04] Speaker 02: Well, it's only a problem, assuming you get past consent. [00:15:09] Speaker 02: It's only a problem if you think he has raised a timely challenge. [00:15:14] Speaker 02: Because of course, Lucia, Ryder, they have always taken pains to emphasize that they granted relief to parties who raised timely challenges. [00:15:22] Speaker 02: Ryder specifically, as I mentioned earlier, distinguished any kind of collateral attack through habeas. [00:15:28] Speaker 02: And here, there is a value in repose. [00:15:31] Speaker 02: That's the principle that Ryder and Lucia carry forward from the de facto officer doctrine. [00:15:36] Speaker 02: This idea that it would be incredibly disruptive, that chaos would result if every act taken by an unconstitutionally appointed officer was subject to challenge, collaterally, years after the proceeding had gone viral. [00:15:50] Speaker 03: And the defendant who's convicted [00:15:54] Speaker 03: in an unconstitutional proceeding has direct review, Article 3 review. [00:16:01] Speaker 03: And, you know, once the Supreme Court denies cert, that's over. [00:16:04] Speaker 03: It's over. [00:16:06] Speaker 03: And habeas is different, right? [00:16:07] Speaker 03: Tough luck. [00:16:09] Speaker 03: That's different from here. [00:16:11] Speaker 03: So, I mean, you know, side act as [00:16:17] Speaker 03: prospective administrative defendant facing exposure, that happens when they notice the enforcement proceeding. [00:16:27] Speaker 02: So PsyDAC, I think his brief definitely tries to harp on exactly that theme, but I think it's belied by the content of the protective order. [00:16:37] Speaker 02: From the moment he signed it, he was under certain obligations to safeguard information, to limit his use of it in certain ways, to report leaks. [00:16:46] Speaker 02: And then I think the clearest example [00:16:47] Speaker 02: is in April of 2019, when the 1065 investigation terminated, he was under an affirmative obligation enforceable by the commission to return or destroy all of the confidential information that he had received through the proceeding. [00:17:03] Speaker 02: His rights were directly at issue. [00:17:05] Speaker 02: He had obligations at that time. [00:17:08] Speaker 03: And how exactly would you have had him raise this in the original proceeding? [00:17:18] Speaker 03: Okay, run into district court or file like, you know, get separate counsel, you know, motion of witness to so declared unconstitutionally appointed. [00:17:30] Speaker 02: So there are various stages at which he could have done it. [00:17:33] Speaker 02: And I'm not going to tell you whether all of these would have worked. [00:17:37] Speaker 03: Give me the most plausible one, because any of them would strike me as odd. [00:17:42] Speaker 02: OK, well, I've got three. [00:17:45] Speaker 02: So first, when this document is first put in front of him, he had an option not to sign. [00:17:50] Speaker 02: He had an option to sign, but say, I don't see. [00:17:53] Speaker 02: No, but flag. [00:17:54] Speaker 02: If you are going to represent to a governmental body and to private parties who are depending on that governmental body to protect their information, that you intend to abide by a series of conditions, that you have doubts about its enforceability, you should do that in a contemporaneous way. [00:18:11] Speaker 02: And I do want to emphasize, it's not like Lucia was an unknown issue. [00:18:15] Speaker 02: This had already, I think, been by this court in November of 2017. [00:18:19] Speaker 02: In fact, I think we filed our cert petition. [00:18:21] Speaker 02: in November of 2017, or it was a brief in opposition nominally. [00:18:27] Speaker 02: And then it was decided by June of 2018. [00:18:33] Speaker 02: So this issue was very much out in the world. [00:18:38] Speaker 02: The Supreme Court was granting cert at around this very same time. [00:18:43] Speaker 02: But then [00:18:55] Speaker 02: Do I think the very sophisticated counsel who are representing Qualcomm and Apple in this proceeding were aware of Lucia? [00:19:02] Speaker 02: Absolutely. [00:19:06] Speaker 02: So he was a paid expert for Qualcomm. [00:19:09] Speaker 02: He was certainly on the same team, to put it nominally, as Qualcomm's lawyers in the case. [00:19:21] Speaker 02: No, they certainly owed it to the company, not to him. [00:19:23] Speaker 02: But as far as I know, he wasn't separately represented. [00:19:31] Speaker 02: I'm not saying that. [00:19:32] Speaker 02: What I am saying is that if you are going to sign a document agreeing to abide by certain conditions, particularly as part of a quid pro quo, you're getting the benefit of the access that it provides. [00:19:44] Speaker 02: I don't think it's fair to complain about it afterwards. [00:19:46] Speaker 05: But [00:19:58] Speaker 02: I have no issue with any of that. [00:20:00] Speaker 02: I just think that if you sign a document saying I'm going to keep your secret safe, that you should probably keep those secrets safe and that if you consent to enforcement of that. [00:20:20] Speaker 02: No, I don't. [00:20:22] Speaker 02: But I do think that when you sign a document, you should make certain that you intend to, that you're serious about abiding by it, and that if you have doubts about its enforceability, you should give notice. [00:20:33] Speaker 02: But I did say I had three answers to Judge Katz's. [00:20:36] Speaker 02: I'm happy to answer follow-up, but I didn't want to forget that. [00:20:41] Speaker 04: When you sign the order, what, sign it? [00:20:46] Speaker 02: With reservations, yeah, or attach something noting his doubts about its enforceability. [00:20:53] Speaker 02: So that's option one. [00:20:55] Speaker 02: Option two is certainly at any point while the matter was before the commission, he could have either filed even an informal letter given notice so the parties were at least aware. [00:21:06] Speaker 02: Because the reason I harp on this, and I realize it would be an unusual thing, [00:21:12] Speaker 02: But if he had given notice while this was before the commission, the commission could have taken corrective action. [00:21:17] Speaker 02: They could have shored this up and put it on clear constitutional footing. [00:21:20] Speaker 02: And instead, we've ended up in a situation where the district court is just giving him a permanent get out of jail free card. [00:21:42] Speaker 02: So even in advance of Lucia, [00:21:55] Speaker 02: So first of all, I want to emphasize that even before Lucia was decided, in anticipation of that decision, the full commission did ratify the appointments of the ALJ. [00:22:07] Speaker 02: So then you get into the separate question of what to do about the individual actions. [00:22:12] Speaker 02: And as I've mentioned a few times and really do want to underscore, appointments cause concerns aren't jurisdictional. [00:22:19] Speaker 02: And therefore, the commission, I think, deferred to the parties [00:22:31] Speaker 02: I can't get inside the heads of what was going on there. [00:22:35] Speaker 02: What I can tell you, I'm not aware of them not, but if you're about to tell me they don't, I just don't know. [00:23:10] Speaker 02: Yeah, I apologize. [00:23:11] Speaker 02: This wasn't something that I focused on in preparing for today's argument. [00:23:15] Speaker 02: I'd be happy to supply the court with, and I'll talk to my client right after this and let the court know. [00:23:23] Speaker 02: Yeah, no, I understand. [00:23:25] Speaker 02: And I apologize that that just wasn't something that I thought was going to be put at issue here. [00:23:31] Speaker 02: But to return to the fundamental question here, because these are non-jurisdictional, if Apple was happy with this and Qualcomm was happy with this, and the litigation is moving forward, [00:23:43] Speaker 02: There was no affirmative obligation on the part of the commission or the ALJ to take specific corrective action. [00:23:50] Speaker 02: And there was some onus on a party who wanted to get out from under an action that had been taken by the ALJ prior to the ratification to note it for the commission so that the commission could take that corrective action. [00:24:02] Speaker 02: And this brings me to the third and final point at which Mr. Sidak could have done something. [00:24:09] Speaker 02: Number two is, [00:24:13] Speaker 02: At some point, send in a letter. [00:24:16] Speaker 02: They emphasize, for example, that Professor Calabresi submitted a letter while the matter was before the commission. [00:24:22] Speaker 02: Certainly, he could have done the same thing. [00:24:25] Speaker 02: And the third thing is he could have filed basically the suit he ultimately filed, but filed it in April, certainly not later than April of 2019. [00:24:34] Speaker 02: A suit in which court, yes. [00:24:43] Speaker 02: Yeah, essentially asserting, I think the suit in April of 2019 would have effectively said, I am currently under the purported compulsion to return or destroy documents. [00:24:54] Speaker 02: I don't want to return or destroy those documents. [00:24:56] Speaker 02: I think this order is unenforceable. [00:24:59] Speaker 02: And accordingly, I'm seeking a declaratory judgment that that obligation is null and void. [00:25:05] Speaker 02: So I think that would have been the time. [00:25:09] Speaker 02: give no notice at all of a possible intent not to comply with the voluntary undertaken obligation to allow the commission, to allow the private parties to rely on the assumption that he's going to do what he said he was gonna do. [00:25:22] Speaker 02: And only then when he's years later under investigation for a possible breach to say, actually, this is unenforceable against me. [00:25:31] Speaker 02: That's where I think we run into problems. [00:25:34] Speaker 02: Um, I, we haven't touched at all on right now. [00:25:37] Speaker 02: I'm very happy to talk about this is for as long as the court is interested, but I didn't want to at least briefly touch on ripeness because, um, it is a tremendous departure from normal orderly judicial review. [00:25:51] Speaker 02: So for a court to consider, um, even a constitutional argument, even a threshold argument while the investigative body here, the commission is still ascertaining the relevant facts, deciding whether a breach even occurred. [00:26:04] Speaker ?: you [00:26:33] Speaker 00: I think there's a decision that the agency has made that this order is the basis for a sanctions procedure. [00:26:40] Speaker 00: Maybe that is different from the ordinary type of investigation where we look differently. [00:26:51] Speaker 02: Yeah, so I think the commission is still in the process of even ascertaining the relevant facts. [00:26:56] Speaker 02: For example, Mr. Sidak has raised certain legal arguments to the commission about why he thinks the conduct that he's already admitted to was in fact allowed under the protective order. [00:27:06] Speaker 02: And I think we would normally allow under bedrock principles of finality and ripeness to let the Commission go through that process. [00:27:15] Speaker 02: And I want to analogize this case to the National Treasury Employees Union case we discuss in our brief. [00:27:22] Speaker 02: It's a canonical ripeness case. [00:27:23] Speaker 02: And that case involved a, uh, the constitutionality of the line item veto. [00:27:29] Speaker 02: Somebody wanted to bring a challenge that it's a pure question of law. [00:27:32] Speaker 02: We're not saying that it required further factual development. [00:27:35] Speaker 02: It was a constitutional question. [00:27:37] Speaker 02: And yet what this court recognized is there's a prudential aspect to ripeness. [00:27:41] Speaker 02: that sometimes it's it's it is more appropriate uh out of separation of powers concerns to let the administrative agency complete its process first and that sometimes if you don't decide a case prematurely on the front end you may never need to decide it and that certainly describes this case the commission has in or the canonical [00:28:09] Speaker 04: State, you could have cited that. [00:28:12] Speaker 04: You could have cited that as part of this proposition. [00:28:14] Speaker 04: You're going to have to write this. [00:28:16] Speaker 02: It involves fitness and question. [00:28:19] Speaker 02: Sure. [00:28:19] Speaker 04: But I think. [00:28:20] Speaker 04: Here's what I'll say to you. [00:28:24] Speaker 04: Is your best case is standard law, which is about finality of the made people. [00:28:35] Speaker 04: The case you both sides most [00:28:49] Speaker 04: There's a lot of overlap in those doctrines, and you could toss it and exhaust you if you want to that mix. [00:28:57] Speaker 04: But you're longer on finality, even 1331 cases, than you are on credentialed rights. [00:29:06] Speaker 04: And if you compartmentalize a little bit and just think about credentialed rights, the court has said it's a sort of disreputable doctrine [00:29:22] Speaker 04: and we're not going to extend it, and we may reconsider it. [00:29:27] Speaker 04: And we've said when there's a purely legal question at issue, we don't worry too much about com 2 without a class. [00:29:36] Speaker 04: So you're trying to import a penalty of 1331 cases into a credential, right? [00:29:45] Speaker 02: So I don't think I'm the one doing the I absolutely take your point, your honor. [00:29:49] Speaker 02: And you're right that we do discuss some of those cases interchangeably. [00:29:52] Speaker 02: But part of the reason we do that is because this court has done the same thing. [00:29:56] Speaker 02: And in particular, one of the cases we do cite is that type or case where one of the three way split. [00:30:03] Speaker 02: And if you look at footnote seven of Judge Williams opinion in that case. [00:30:08] Speaker 02: It was about 87. [00:30:09] Speaker 02: It's a little long in tooth. [00:30:12] Speaker 02: I understand. [00:30:14] Speaker 02: But if you look at that case, footnote seven of Judge Williams' opinion, that it cites to a 1984 decision of this case called Public Citizen Health, where the court basically said the finality and the pronged one of rightness, two components converge and can basically be treated interchangeably. [00:30:35] Speaker 02: I would add that, of course, FTC versus Standard Oil [00:30:40] Speaker 02: the the first the first at longs at the fitness for judicial review fitness for Jude. [00:30:47] Speaker 02: I don't agree with I think National Treasury Employees Union says there's more to fitness than just is it purely legal. [00:30:58] Speaker 02: Whether or not [00:31:02] Speaker 02: It's not just collateralness. [00:31:03] Speaker 02: Is there an opportunity for this case to go away, essentially? [00:31:07] Speaker 02: Can this be resolved by the other branches before the judiciary gets involved? [00:31:13] Speaker 02: The statement, and I'm paraphrasing here, but I think pretty closely. [00:31:17] Speaker 02: The often unstated, that the pronged one incorporates the often unstated but true proposition that if we do not decide this case now, we may never need to decide it. [00:31:28] Speaker 02: And that's true even for pure questions of law like the constitutionality of the line item veto. [00:31:37] Speaker 02: And of course, FTC versus Standard Oil, which we discuss at length, itself discusses Abbott Labs quite heavily. [00:31:47] Speaker 02: So I do think these doctrines can't be put, while you're certainly right that they are, [00:31:52] Speaker 02: separate lines of cases, there's a fair amount of overlap there. [00:31:57] Speaker 02: The other thing I'd point out is I don't understand Mr. Sidak to be taking issue with the fact that if he were arguing to this court, for example, those same legal defenses he's asserted to the commission, that, for example, the protective order scope doesn't reach the transcripts, it only reaches the primary documents, that this suit would be unripe. [00:32:15] Speaker 02: And the reason for that [00:32:22] Speaker 04: Yeah. [00:32:23] Speaker 04: Oh, no. [00:32:24] Speaker 04: I mean, that seems to prove too much. [00:32:30] Speaker 04: If you take the problem on a credential rightness, it includes building issues to go away, and you mix and match with 1330 model, you get an axon within it. [00:32:46] Speaker 02: Right. [00:32:47] Speaker 02: And I agree. [00:32:48] Speaker 02: You can only take it so far. [00:32:52] Speaker 04: who is before the unconstitutionally appointed or insulated. [00:33:02] Speaker 02: So I think the reason that's not true, and this is crucial in Axon, is Axon said there was a particular here and now injury. [00:33:10] Speaker 02: It's not, will this case go away? [00:33:12] Speaker 02: Will the SEC or the FTC ultimately decide to sanction Axon or to sanction Mr. Cochran? [00:33:20] Speaker 02: But rather, the here and now injury was in, and this is I'm quoting from page 192 of Axon, and this is the key element of that decision, [00:33:29] Speaker 02: being held before a quote unconstitutionally structured decision maker. [00:33:33] Speaker 02: And that is the distinguishing feature of axon. [00:33:37] Speaker 02: It's the basis on which the court said this isn't at all inconsistent with standard oil. [00:33:41] Speaker 02: We have no renewed enthusiasm for interlocutory review. [00:33:45] Speaker 02: But this is a special case. [00:33:46] Speaker 02: There's an exception when you're being subjected to an unconstitutionally structured decision maker. [00:33:52] Speaker 02: And I want to emphasize that Mr. Sidak has not challenged the jurisdiction or the constitutional structure of the ITC itself. [00:33:59] Speaker 02: And in fact, at Oral Argument District Court, you can see this at JA 142, he expressly said he wasn't challenging jurisdiction. [00:34:14] Speaker 04: I think that reading would be far too broad because if you think of FTC versus Standard Oil, for example, [00:34:33] Speaker 02: The allegation there was that the proceeding was improperly commenced because the requisite statutory threshold for starting it, whether the commission had reason to believe that there was a violation was not met. [00:34:46] Speaker 02: Now imagine that Standard Oil's lawyers had just tacked on a due process claim and said that is evidence of an absence of due process or a First Amendment retaliation claim and said that is evident because they are proceeding on such patently insufficient [00:35:02] Speaker 02: evidence in starting this. [00:35:04] Speaker 02: They're bowing to political pressure. [00:35:05] Speaker 02: This is clearly retaliation for our public opposition to the administration. [00:35:11] Speaker 02: I don't think FTC versus Standard Oil comes out any differently post-axon. [00:35:39] Speaker 02: So first of all, well, I said that hand in hand with his consent in November of 2017. [00:35:47] Speaker 02: And I, you'll forgive me, that's very important to me to emphasize. [00:35:51] Speaker 02: But what makes this different is, is the [00:35:54] Speaker 02: decision maker unconstitutional there will be lots of cases, for example, if somebody wanted to bring a constitutional challenge to the FTC act and say there was some defect in it, I think even post axon and that's sort of analogous to the Elgin case right. [00:36:11] Speaker 02: in Elgin, somebody was being facing potential repercussions based on the draft failure to register for the draft. [00:36:22] Speaker 02: There was a threshold constitutional equal protection challenge to that statute that it discriminated against men. [00:36:29] Speaker 02: And there was no question that was the kind of case situation where it was a pure legal question. [00:36:36] Speaker 02: It was the kind of thing. [00:36:37] Speaker 02: It was a facial challenge. [00:36:39] Speaker 02: And yet, [00:36:39] Speaker 02: In Elgin, the Supreme Court still said you have to go through the administrative scheme. [00:36:43] Speaker 02: Now, again, that's a thunder basin case. [00:36:45] Speaker 02: And I am mindful of your point earlier, Judge Katz, is that I don't want to conflate doctrines too much. [00:36:51] Speaker 02: But the mere fact that somebody is saying the basis for the proceeding suffers from some inherent constitutional flaw, I think proves far too much. [00:37:22] Speaker 02: Absolutely. [00:37:24] Speaker 02: So you can get a declaratory judgment as opposed to an injunction. [00:37:26] Speaker 02: Absolutely. [00:37:33] Speaker 02: So even before we get to whether they're right. [00:37:39] Speaker 02: So for the third argument, the third argument we've made our brief is the district court committed legal error [00:37:49] Speaker 02: in failing even to consider the public interest. [00:37:51] Speaker 02: And in particular, the fact that this is a order that was designed not only to protect the commission, but also to protect the confidential business information of Apple and Intel and third parties who responded to discovery requests over the course of that proceeding. [00:38:09] Speaker 02: And under this court's recent decision in Zuckerman, for example, [00:38:13] Speaker 02: the mere even if you think he was entitled to prevail on the merits and of course we we think he's not but even if you get past that deciding that he's entitled to prevail on the merits doesn't answer the separate inquiry of whether or not he's entitled to a remedy uh an injunctive remedy and a failure to even consider the public interest is just per se error they they have the [00:38:44] Speaker 04: They file what was then a P.I. [00:38:47] Speaker 04: motion and they argue all four. [00:38:50] Speaker 04: If I have the criminology right, then it gets converted into some judgment or summary judgment not responding to that. [00:38:59] Speaker 04: And we say to the extent we're even talking about still talking about this, deny equitable [00:39:18] Speaker 04: So you only have to convert factors 1 and 2. [00:39:24] Speaker 04: Factors 3 and 4 are not subject matter jurisdictions, so you have an extended issue. [00:39:30] Speaker 02: Well, I actually do want to push back on that a little bit. [00:39:34] Speaker 02: But there are a couple points I want to make here. [00:39:37] Speaker 02: So one point I want to make is I'm very glad you noted the chronology here. [00:39:41] Speaker 02: The parties agreed to convert the PI. [00:39:44] Speaker 02: And at that point, both parties just briefed this as cross motions for summary judgment. [00:39:47] Speaker 02: And neither side was really engaging with the equitable factors. [00:39:51] Speaker 02: The second thing I want to emphasize is that though we certainly didn't brief. [00:39:59] Speaker 02: Well, it's. [00:40:04] Speaker 02: Well, motion for summary judgment was the focus. [00:40:08] Speaker 02: But I want to emphasize that the equitable considerations that we're pointing to in this court were absolutely before the district court. [00:40:15] Speaker 02: Now, I don't want to mislead the court. [00:40:17] Speaker 02: We did not frame this in terms of the equitable analysis. [00:40:21] Speaker 02: We were. [00:40:22] Speaker 02: making these points in the context of other arguments. [00:40:24] Speaker 02: But if you go to JA123, which is our district court brief, and then JA183, the oral argument before the district court, we were talking about the same sorts of equitable considerations that our brief in this court talks about. [00:40:39] Speaker 02: The other thing I want to emphasize is your honor says, well, it's not jurisdictional. [00:40:44] Speaker 02: And I think that's right, but with a caveat, which is, [00:40:48] Speaker 02: One baked into the preliminary injunction or the permanent injunction analysis is a recognition that sometimes an injunction is going to impact not just the two parties before the court, but the public at large. [00:41:01] Speaker 02: And I think that's particularly true when a court is considering basically declaring void and unenforceable [00:41:08] Speaker 02: in order, the primary purpose of which was to protect non-parties to the proceeding. [00:41:13] Speaker 02: And when the court enters an injunction without even accounting for that fact, and without even referencing the public interest, I think that is the kind of error this court can and should address. [00:41:38] Speaker 02: Well, I think this court often, for an abuse, well, I think often in the context of an abuse of discretion standard, the court will sometimes say the lower court committed an error of law in failing to account for something. [00:41:56] Speaker 02: We send it back so that the court can apply its discretion in the first instance. [00:42:00] Speaker 02: I don't think that's remarkable. [00:42:01] Speaker 02: The other thing I want to emphasize here is there are intermediate steps you could take. [00:42:05] Speaker 02: For example, you could say maybe Mr side act shouldn't be sanctioned should be subject to some penalty on the basis of his conduct, but the commission can and should be able to at least ascertain the relevant facts and make sure he. [00:42:18] Speaker 02: at least destroy, to the extent he still has any Apple or Intel or other information, that there's a balance that needs to be struck here to make sure he doesn't continue to retain information that potentially could leak, even if he's not planning on selling it or posting it on the internet now that he has the protection of this injunction. [00:42:36] Speaker 02: As long as it's on his computer, there's a risk of leak. [00:42:40] Speaker 02: And you could certainly imagine an equitable analysis here that takes account of Apple and Intel's interests and not [00:42:46] Speaker 02: though I do want to emphasize the commission's interests here are substantial as well. [00:42:50] Speaker 02: People rely on the commission to conduct the kinds of adjudications that require consideration of very sensitive information. [00:42:58] Speaker 02: Congress recognized that, and we don't want that undermined. [00:43:21] Speaker 02: Well, there are two answers, Your Honor. [00:43:23] Speaker 02: So what one is, of course, because there's already a well-established principle that protects commission orders from concluded proceedings, which is the finality. [00:43:33] Speaker 02: I understand. [00:43:33] Speaker 02: The second reason is because it's not like that would resolve everything. [00:43:40] Speaker 02: You know, Mr. Sidak at times says there was an easy fix here. [00:43:43] Speaker 02: But then if you look at page 36 of his brief, and particularly footnote two, he actually [00:43:58] Speaker 02: So I don't think we could have, if we had just purported to reopen 1,000 long concluded investigations, issue a blanket ratification, and then try to enforce that without getting new signatures from everybody. [00:44:17] Speaker 02: We may well have the power to do that. [00:44:18] Speaker 02: And frankly, depending on how this case comes out, maybe we'll have to try. [00:44:22] Speaker 02: But I think if you read Mr. Sidak's brief, and particularly page 36, [00:44:26] Speaker 02: I think it would be foolish to assume that that would have just resolved the question wouldn't have opened up new litigation. [00:44:51] Speaker 02: No, the footnote I'm referring to actually questions whether ratifications are even effective. [00:45:01] Speaker 02: Thank you, Your Honors. [00:45:02] Speaker 01: Good morning. [00:45:18] Speaker 01: May it please the court? [00:45:20] Speaker 01: We're here today because to this day, six years after Lucia, the ITC still hasn't fixed its Lucia problem. [00:45:28] Speaker 01: The agency has never done anything to address orders entered by ALJs whose appointments were unconstitutional under Lucia. [00:45:38] Speaker 01: Instead of fixing the problem, [00:45:40] Speaker 01: The agency is doubling down and instead insisting that this court should allow it to enforce an order that it concedes is unconstitutional. [00:45:51] Speaker 01: As the district court recognized, that turns the law upside down and makes this an easy case. [00:45:58] Speaker 01: An agency has no right to enforce an unconstitutional order. [00:46:03] Speaker 01: That's basically the affirmative part of my case, which is an easy case. [00:46:07] Speaker 01: The agency tries to avoid that by saying, oh no, you're too early and you're too late. [00:46:15] Speaker 01: And the agency is wrong on both scores. [00:46:17] Speaker 04: I'm happy to address the two early arguments or the two late arguments or whatever the court is interested in my addressing. [00:46:38] Speaker 04: A. L. J. presiding in the dispute. [00:46:46] Speaker 04: This is this is a separate proceeding for a lawfully structure. [00:46:54] Speaker 07: Correct, which is Judge Ralph. [00:46:58] Speaker 04: The injury being put into a proceeding whose judicator is [00:47:16] Speaker 01: Right, but as Judge Rao pointed out, the sole basis, there's an ask and my friend conceded, the sole basis for this new proceeding, the proceeding directed against SIDAC is alleged violations of the protective order entered by that ALJ. [00:47:35] Speaker 01: There's no other basis. [00:47:36] Speaker 01: And just to clarify, the injunction in this case does not stop the agency from doing anything beyond the four corners of the protective order. [00:47:45] Speaker 01: The injunction says, defendants are hereby enjoined, and this is a JA 229, from using the protective order from the 337 proceeding investigation as a basis for investigating and or sanctioning plankton. [00:48:00] Speaker 01: So again, the proceeding that we have now is a proceeding aimed solely at enforcing an unconstitutional protective order. [00:48:10] Speaker 01: It's not. [00:48:10] Speaker 04: Just a little bit different. [00:48:15] Speaker 04: Your merits theory is that this proceeding before a lawfully structured tribunal has some unconstitutional- 100% because it is a- [00:48:31] Speaker 01: Fair enough, Your Honor. [00:48:33] Speaker 01: In other words, yes, we concede that this is not an adjudication before an improperly appointed adjudicator. [00:48:42] Speaker 01: It is a proceeding aimed solely at enforcing an order entered by a conceitedly improperly appointed adjudicator. [00:48:50] Speaker 01: There's no other, as the questioning with Judge Rao made clear, there's no other [00:48:57] Speaker 01: You know, there's no assertion that there's multiple grounds. [00:49:01] Speaker 01: The only basis for this proceeding and the only subject of the injunction is the use of the protective order. [00:49:09] Speaker 01: The agency is correct that that is distinguishable from Axon and other cases in that sense, but that's really a distinction without a difference in the sense that it is a, I'm sorry, Your Honor, were you? [00:49:27] Speaker 04: I'm thinking about, I'm gonna do the makes and match, which is the general rule is standard order. [00:49:38] Speaker 04: You're a defendant in an administrative enforcement action, don't like what's happening to you, you're claiming legal error, you're claiming even constitutional error, you're saying what legal fees are on and off, can't sleep at night, [00:49:56] Speaker 04: The general answer is, that's just, that's part of the ordinary duty of citizenship. [00:50:02] Speaker 04: And when the case is over, you can make whatever argument you want. [00:50:08] Speaker 04: That's the general rule. [00:50:09] Speaker 01: That is the general rule, and we do not. [00:50:11] Speaker 04: The last thought is the exception, at least when you are thrown into, thrown before an adjudicator [00:50:22] Speaker 04: unconstitutionally. [00:50:24] Speaker 01: Well, that's the question and said axon itself said is this case more like free enterprise clause or more like Elgin and we and we submit that this case more like [00:50:38] Speaker 01: 100% more like Axon, because listen, we're not seeking anything to do with the outcome of the agency proceeding. [00:50:46] Speaker 01: We're challenging the fact of the agency proceeding. [00:50:49] Speaker 01: It's the here and now injury of being subjected to the enforcement of an unconstitutional order, which is a structural problem. [00:50:57] Speaker 04: This case is within- So if we're just drilling down on individual cases and treating Axon as extendable to credential rights, [00:51:11] Speaker 04: The test is unconstitutional. [00:51:19] Speaker 04: or illegitimate proceeding led by illegitimate illegitimate proceeding. [00:51:24] Speaker 01: Again, that's the language of axon, but it's a structural constitutional problem that is completely divorced from the merits. [00:51:33] Speaker 01: Some of the decisions they're talking about, like they had a constitutional question, which is, well, as a due process problem, if there's no factual basis. [00:51:41] Speaker 01: Uh, and your honor judge row, you were on a panel in a Loma Linda case last year. [00:51:45] Speaker 01: that raise some questions about how would this apply in the context of the lead them versus kind religion act case. [00:51:51] Speaker 01: There are some tricky axon related issues that are floating around in your radar screen as the DC circuit, but [00:52:00] Speaker 01: this case where the claim is the structural constitutional claim. [00:52:05] Speaker 01: They are here and now it's this Mr side at my client. [00:52:08] Speaker 01: His constitutional section 13 31 claim is the exact same claim. [00:52:14] Speaker 01: It is a claim that my rights under the appointments clause, my structural constitutional rights, which have nothing to do. [00:52:20] Speaker 01: The merits could be about widgets. [00:52:22] Speaker 01: We have nothing to do with the way that process turns out. [00:52:25] Speaker 01: It is I have a right not to be hauled in [00:52:28] Speaker 01: to this improper proceeding again improper why it's improper has nothing to do with the merits in some sense even their standard oil hypo had to do with the merits if there's no due process claim if it's that even versus kind it's a little more merit see this claim is exactly the same i'm sorry [00:52:50] Speaker 01: Correct. [00:52:50] Speaker 01: In other words, I think the end of the hypothetical, what my friend just said is, well, in FTC, they could say, well, [00:52:59] Speaker 01: you know, the statute, the organic statute doesn't give you that power or there might even be a constitutional problem with the organic statute. [00:53:07] Speaker 01: I mean, those are much more closely aligned with the mayor's. [00:53:10] Speaker 01: I think at this court may find, and the courts generally may have some very interesting work to do on Axon and how far that extends. [00:53:20] Speaker 01: But this case, which is a, it's literally an appointments clause challenge [00:53:38] Speaker 01: 100% different. [00:53:39] Speaker 01: And in fact, the injunction doesn't prohibit that. [00:53:43] Speaker 01: The injunction only says, again, JA 229, they're enjoined from using the protective order. [00:53:51] Speaker 01: Correct. [00:53:52] Speaker 01: Correct. [00:53:53] Speaker 01: The here and now injury is not the investigation per se. [00:53:59] Speaker 01: It's the use of an order entered by an improperly appointed ALJ. [00:54:07] Speaker 01: OK, so on that, what they are really making is a Johnson versus Serbst waiver argument. [00:54:16] Speaker 01: The agreement, let's look at that agreement. [00:54:18] Speaker 01: What it literally says, I have it here in front of me, it's JA 48. [00:54:21] Speaker 01: It says, I agree to be bound by the terms of the protective order. [00:54:25] Speaker 01: OK, we all agree to lots of things. [00:54:28] Speaker 01: That is not an agreement. [00:54:30] Speaker 01: to that the judge who entered the order or the ALJ was constitutionally appointed. [00:54:38] Speaker 01: I mean, the notion that if Mr. Sidak didn't use the appointments clause as a sword to immediately attack [00:54:48] Speaker 01: the ALJ's appointment when he's an expert witness, all he did is agree to abide by the terms of the protector. [00:54:53] Speaker 01: He didn't agree to waive any right. [00:54:57] Speaker 01: Again, the Johnson versus Zerp standard for waiver of a constitutional right is a knowing waiver. [00:55:02] Speaker 01: Where in here does it say, I agree to waive any objection later? [00:55:08] Speaker 01: I mean, he's agreeing to abide by that. [00:55:09] Speaker 01: That assumes that it's valid. [00:55:11] Speaker 01: He's not agreeing. [00:55:12] Speaker 01: He's not giving up anything to use it as a shield in a subsequent enforcement proceeding. [00:55:29] Speaker 01: You could, and that is very much the way the government is trying to push it, but their enforcement proceeding is not a breach of contract proceeding. [00:55:37] Speaker 01: It's a breach of protective order proceeding. [00:55:39] Speaker 01: I don't know that they would have the statutory right in an administrative proceeding to do a breach of contract. [00:55:47] Speaker 01: That goes into Crowell versus Benson and what the administrative [00:55:49] Speaker 01: authority could do. [00:55:51] Speaker 01: I mean, maybe there could be a contract. [00:55:55] Speaker 01: I mean, again, this is just not a breach of contract claim. [00:55:58] Speaker 01: But we are not arguing here. [00:56:00] Speaker 01: I want to be very, very clear on this, that [00:56:03] Speaker 01: The only dispute here is about their attempt to give effect to this protective order. [00:56:11] Speaker 01: And what's kind of weird here, frankly, is that they're saying it's too early. [00:56:15] Speaker 01: Their argument is that they should be allowed to proceed with an investigation, possibly to impose sanctions for a protective order that they've conceded in this proceeding is unconstitutional. [00:56:31] Speaker 01: They've not defended the merits of this. [00:56:33] Speaker 01: This is a particularly weird situation. [00:56:37] Speaker 01: I think Judge Katz, as you asked a question to my friend about this, like what on earth are you all doing trying to proceed with this proceeding to enforce something that you've conceded is unconstitutional? [00:56:49] Speaker 01: The only answer I can think, sorry, you're all right. [00:56:53] Speaker 04: That aspect is very stark. [00:56:56] Speaker 01: It's stark, I think it's. [00:56:57] Speaker 04: I wonder if the question of are we, [00:57:04] Speaker 04: I mean, is this more like standard or is this more of an axon? [00:57:09] Speaker 04: Need a little bit more categorical answer. [00:57:14] Speaker 04: This is startling because the Appointments Clause question is so clearly undisputed and the purpose of the enforcement action is so clearly and exclusively to enforce the unconstitutional [00:57:34] Speaker 01: Yes. [00:57:37] Speaker 01: Well, to what end? [00:57:38] Speaker 04: I mean, so, so, I mean, the classic case we're assessing is the defendant is in an enforcement proceeding or a lawfully constituted tribunal. [00:58:05] Speaker 01: Because I get that. [00:58:10] Speaker 01: But again, it's somewhat shocking where you have where they have conceded that the thing they want to enforce is invalid. [00:58:24] Speaker 01: Well, no, but again, [00:58:26] Speaker 01: I think you, your honor, yourself had pointed out that Axon, they brought out one snippet of Axon, which said something about the adjudicator. [00:58:35] Speaker 01: But I think as your honor, yourself, there's lots of other places in Axon, not even to mention Justice Gorsuch's concurrence, where he is talking about, we have 1331. [00:58:44] Speaker 01: I mean, the whole [00:58:47] Speaker 01: A lot of these doctrines, Thunder Basin, they are doctrines of administrative regularity. [00:58:52] Speaker 01: And that's fine. [00:58:54] Speaker 01: But again, where you have somebody who has a structural violation, particularly here where it's a conceded structural violation, that lies at the root of the only thing the agency is trying to force. [00:59:08] Speaker 01: Again, I think this is probably the best answer to this, which is to say, I'm sorry, Your Honor. [00:59:20] Speaker 04: I'm in district order. [00:59:30] Speaker 01: agency. [00:59:31] Speaker 01: Fair enough. [00:59:32] Speaker 01: Look, that is all right. [00:59:34] Speaker 01: That is almost a that is almost a that's a very difficult standard. [00:59:38] Speaker 01: Again, I think where it is a structural constitutional argument based on the appointments clause at least. [00:59:45] Speaker 01: OK, I mean, this literally is the same structural constitutional claim that acts on said imposed a here and now injury. [00:59:52] Speaker 01: So the question that they're presenting that they are positing that there is a dispositive difference between saying that the [01:00:00] Speaker 01: your appointments clause is to the challenge is directed only at the adjudicator of that challenge or versus something that is at the underlying order that is the sole basis for the entire new proceeding. [01:00:19] Speaker 01: Whereas here, the only basis for this proceeding is to enforce an order that is concededly entered in violation of the appointments clause. [01:00:28] Speaker 01: again it seems to me that would that easily falls within both the spirit and the letter of axon as saying what on earth would you allow this to go there are many different I'm sorry all right [01:00:51] Speaker 01: Well, some First Amendment claims may be more bound up in the merits. [01:00:55] Speaker 01: This is actually very similar to the Loma Linda case where Judge Rao was on the panel, where there was a lead them versus kind argument that somebody said, I have a First Amendment right not to be subjected to this. [01:01:07] Speaker 01: A merits panel said the majority over Judge Rao's dissent said that is really just a statutory argument that is intertwined with the facts. [01:01:18] Speaker 01: Again, the FTC versus standard oil argument hypothetical that my friend presented to you where he said, well, there's zero factual basis for the proceeding. [01:01:31] Speaker 01: So that's a due process clause. [01:01:32] Speaker 01: I mean, I think [01:01:34] Speaker 01: you can draw distinctions where those things are in some way tied up with the merits. [01:01:40] Speaker 01: This Appointments Clause issue is a structural constitutional issue that has zero to do with the merits, as we know, because the court in Axon has already said that. [01:01:52] Speaker 01: Now, again, they were saying that in the context of the adjudicators before it, but it's the same principle [01:01:58] Speaker 01: that where the claim has nothing to do with anything to do that's going on in this administrative proceeding and could not, nothing that happens in the adjudicative proceeding could in any way, they've never suggested any way in which that could shed any light on this, that whether or not he violated the protective order has any bearing whatsoever in any conceivable way. [01:02:20] Speaker 01: The only argument they've made is to say, well, we may wind up deciding in his favor. [01:02:26] Speaker 01: That actually, as Axon and Carr versus Saul makes clear, cuts in our favor because the here and now, apparently what they're trying to do or what they're saying they have a right to do is continue to impose all these costs and uncertainty on Mr. Seidak, [01:02:41] Speaker 01: and then say, oh, guess what? [01:02:43] Speaker 01: We've decided not to impose a sanction. [01:02:45] Speaker 01: They almost have to do that because they've conceded that the only order on which they're basing the proceeding is unconstitutional. [01:02:52] Speaker 01: So any sanction that they would impose would have its death warrant on its face if he decided to go to court. [01:02:58] Speaker 01: What they want to do is really an abuse of the administrative process. [01:03:02] Speaker 01: I mean, I think this case presents to this court probably the starkest example of what you will see is just a naked, [01:03:09] Speaker 01: I mean, this wolf is coming as a wolf. [01:03:12] Speaker 01: These people are not coming here in order to validate some otherwise legitimate process. [01:03:20] Speaker 01: The only basis, again, I think this goes... Again, if it were some other basis, right. [01:03:42] Speaker 01: I think that at least that isn't that is a that is one of the hard acts on questions. [01:03:56] Speaker 01: I'd say our case is an easy acts on question, right? [01:03:59] Speaker 01: I mean, when you start to get into those kinds of questions, it starts to raise [01:04:07] Speaker 01: If they just say this is improperly motivated, I think that probably is a standard oil versus Exxon thing. [01:04:13] Speaker 01: Again, I don't deny that that is the background rule. [01:04:16] Speaker 01: I think, though, if you take the same approach that the Supreme Court did at Exxon, and I understand Exxon is a Thunder Basin case, but it's the very same kinds of issues. [01:04:28] Speaker 01: Again, I think those kind of things where you have to even think of the merits, [01:04:46] Speaker 06: sure that's it. [01:04:49] Speaker 01: There's a statute that and there's regulations. [01:04:52] Speaker 01: Yeah. [01:05:15] Speaker 06: If you think of it like that, proceeding is for his violation. [01:05:22] Speaker 06: Proceeding is by perfectly legitimate constitutional point of decision. [01:05:28] Speaker ?: And it's for his violation of a statute of regulation that are completely blocked. [01:05:35] Speaker 06: And the concept of order is really just a piece of evidence showing that he violated perfectly fine regulation. [01:05:46] Speaker 01: If that were the case, this would be a different proceeding. [01:05:49] Speaker 01: Again, I think that was Judge Rao's first question to my friend. [01:05:53] Speaker 01: Is this a case about a violation of the protective order or some other statutory or regulatory [01:06:22] Speaker 01: No, but... [01:06:27] Speaker 01: clearly it is. [01:06:28] Speaker 01: If you look at the May 25th letter, I think it is clearly the particular just look at the first line here. [01:06:33] Speaker 01: Mr Sidek. [01:06:34] Speaker 01: This letter concerns a possible breach of the administrative order APO issued in blah, blah, blah. [01:06:39] Speaker 01: That's J 49. [01:06:40] Speaker 01: And again, your honor, we know if if it were something broader, as your honest question is asking, that wouldn't be enjoined. [01:06:48] Speaker 01: The only thing that is enjoined by the injunction. [01:06:51] Speaker 01: It's a very narrow injunction that the district court entered in this case. [01:06:56] Speaker 06: Okay, [01:06:58] Speaker 06: there weren't the original regulations. [01:07:06] Speaker 01: If you could separate that from the protective order, I mean, I guess that raises some very tricky issues. [01:07:13] Speaker 01: I think that order seems to me to be entirely contingent on the validity of the protective order. [01:07:19] Speaker 01: So I don't think that regulation alone, thou shalt not violate a protective order, is really a statutory or regulatory basis independent of appropriate. [01:07:30] Speaker 01: If I'm understanding your hypothetical correctly, I think that would be covered by the injunction. [01:07:35] Speaker 01: So I don't think they can just be cute and say like, oh, we're no longer in protective order, we're now the rule. [01:07:40] Speaker 01: But as long as it is about the protective order, again, entered by an unconstitutionally appointed LJ. [01:07:45] Speaker 01: Again, you asked my opponents this question, my friends this question. [01:07:50] Speaker 01: Why don't you guys fix this? [01:07:51] Speaker 01: We wouldn't be here if they had fixed this. [01:07:53] Speaker 01: And that goes back to the equities of this. [01:07:55] Speaker 01: That's what's so weird that the incentive we're here in the DC circuit today using all of our time when this agency could just have fixed it as other agencies did. [01:08:23] Speaker 01: Well, he has made clear in his in his affidavit, which again, that's a whole other part of this case that isn't here about the coercion of that affidavit that he destroyed the parts of the case file that were beyond [01:08:39] Speaker 01: the confidential, about the hearing transcript. [01:08:41] Speaker 01: Again, let's go back to the genesis of this case. [01:08:43] Speaker 01: This is about his use of pin sites to a confidential hearing transcript where he was filing FOIA requests. [01:08:50] Speaker 01: They turn and says, aha, gotcha. [01:08:52] Speaker 01: This means you're violating the protective order, right? [01:08:54] Speaker 01: They have never alleged that he violated, that he actually disclosed anything. [01:09:02] Speaker 01: Correct. [01:09:03] Speaker 01: And again, you're going to the equities of [01:09:07] Speaker 01: anybody may remember that there's no obligation to erase your memory. [01:09:15] Speaker 01: Again, that's why I think they should try to fix this immediately, if not yesterday. [01:09:25] Speaker 01: Right, I guess I don't. [01:09:26] Speaker 01: Yeah, I mean, I guess as we stand, as we as we are here together today right now, there is no legally valid thing stopping people. [01:09:35] Speaker 01: Our only point is to say when they bring up this parade of horribles, they bring up Apple, they bring up [01:09:40] Speaker 01: all these other companies, right? [01:09:42] Speaker 01: They can fix that. [01:09:43] Speaker 01: You don't need, under the statute of regulatory authority they have, they could fix it today by entering some kind of an order saying anybody who received confidential information under a protective order entered by an unconstitutional appointed judge is prohibited from doing that. [01:10:00] Speaker 01: Until they fix that though, they can't go around and say like, oh no, we have to have the obligation to enforce an unconstitutional order. [01:10:11] Speaker 01: With respect to side act, it's too late. [01:10:13] Speaker 01: Yeah, they can't. [01:10:14] Speaker 01: They can't. [01:10:17] Speaker 01: Well, no, I'm sorry. [01:10:18] Speaker 01: I thought I was going back to Judge Walker's hypothetical. [01:10:21] Speaker 01: He was asking about things that Mr. Sidak might do in the future. [01:10:24] Speaker 01: If today they entered an order, they could certainly stop Mr. Sidak. [01:10:29] Speaker 01: We don't say Mr. Sidak gets ever and for all time carte blanche to do whatever he wants. [01:10:34] Speaker 01: At least until there's a protective order, Mr. Sidak and anybody else whose conduct is governed by a pre-2018 protective order, [01:10:46] Speaker 01: Why do I think they have an issue? [01:10:47] Speaker 01: Well, they have. [01:10:50] Speaker 01: Oh. [01:10:53] Speaker 01: Your honor. [01:10:54] Speaker 01: That's a long answer about this agency. [01:10:57] Speaker 01: This is an agency that even after Lucia, if you look at the federal register notice in September of 2018, which is in the record, they continue to insist after Lucia that they never had a Lucia problem because the other commissioners had a veto on the chairman's unilateral thing. [01:11:11] Speaker 01: Even though 10 years ago in free enterprise, this court said multi-member enterprises, the head of the agencies, the head of the department is the whole agency. [01:11:22] Speaker 01: So this is an agency where accountability is an extremely foreign concept. [01:11:26] Speaker 01: This dispute should never have arrived in federal court. [01:11:30] Speaker 01: It is a shocking [01:11:35] Speaker 01: manifestation of where we are in administrative law in the year 2024 that we are here debating this and that we haven't the federal government is coming here and saying yes please give us carte blanche please overturn this this injunction that stops us from stops the agency from using a protective order that the agency has conceded is unconstitutional so [01:11:58] Speaker 01: Again, it blows my mind that they have not tried to fix it. [01:12:03] Speaker 01: I think they think they can get away with it. [01:12:05] Speaker 01: And so why not? [01:12:06] Speaker 01: And I certainly hope this court agrees with the arguments in our brief. [01:12:11] Speaker 01: And with the district court's opinion, which very carefully, and again, underscores the narrowness, the district court said, look, if this were a party's different story, parties have their rights and obligations at issue. [01:12:22] Speaker 01: They have certain obligations. [01:12:24] Speaker 01: We have never in this country had a world where anybody who has any kind of obligation entered into confidentiality decorum in court. [01:12:32] Speaker 01: If somebody in the court starts disrupting this court, right, they all, we all have certain obligations. [01:12:38] Speaker 01: That doesn't mean that you have a certain implicit or explicit obligation that you're waiving your right thereafter as a non-party if there ever is an enforcement proceeding against you to bring whatever defenses you might want to bring. [01:12:50] Speaker 01: That has never been the law in this case. [01:12:52] Speaker 01: And so I think in this country, and I think their attempts to enforce this order take administrative law well beyond where it has ever been. [01:13:08] Speaker 04: So why shouldn't we at least send this back [01:13:41] Speaker 01: Two reasons, your honor. [01:13:43] Speaker 01: Well, two reasons, your honor. [01:13:45] Speaker 01: This remedy provision, and I invite you to look at the briefs below on this. [01:13:49] Speaker 01: And I urge you to do that. [01:13:50] Speaker 01: I know you have, because that came up, right? [01:13:53] Speaker 01: They have an obligation. [01:13:55] Speaker 01: Right. [01:13:57] Speaker 01: Right. [01:14:02] Speaker 01: They never challenged three and four, right? [01:14:03] Speaker 01: Everybody agreed. [01:14:06] Speaker 01: Well, again, he didn't need [01:14:09] Speaker 01: But that affirmative and statement, if that didn't exist, that's not critical to his reasoning. [01:14:14] Speaker 01: I think his point is the only remedy that is [01:14:19] Speaker 01: When you have a more traditional way that one of these appointments clause challenges comes up, like in Lucia, it's reassignment for adjudication before a properly appointed decision-maker. [01:14:30] Speaker 01: When the agency, and it's almost crazy to imagine this is what is happening, but this is the nightmare that Mr. Sidick is living in, they have decided to actually try to enforce a concededly unconstitutional order, right? [01:14:42] Speaker 01: And so the only remedy to stop that is to say, stop that, right? [01:14:46] Speaker 01: You can't go and reassign anything to somebody else, right? [01:14:49] Speaker 01: They never disputed that point. [01:14:51] Speaker 01: That was kind of the clear thing. [01:14:53] Speaker 01: And with respect to the, they never said there was some other adequate remedy at law. [01:14:58] Speaker 01: They never suggested that. [01:15:00] Speaker 01: With respect to the public interest factors, the district court, if you look at JA 227, he does say, if any, so in other words, let's just go to the procedural point. [01:15:08] Speaker 01: This is bedrock law that you, as the DC Circuit, are not a self-directed board of inquiry looking for possible mistakes. [01:15:16] Speaker 01: A lawsuit has a certain proceeding in the adversary system, and the government is a very worthy adversary. [01:15:25] Speaker 01: If they thought that the court could not enter an injunction because of the public interest considerations, it was up to them to tell the district court, you [01:15:33] Speaker 01: cannot enter this because of these public interest concerns. [01:15:35] Speaker 01: They said boo about that. [01:15:37] Speaker 01: Now to come up on appeal to the DC Circuit and say please vacate that because we've now come up with these other arguments. [01:15:43] Speaker 01: In any event, so that's the procedural argument that there has never been in the history of American law, as far as I'm aware, some argument that the injunctive factors are impervious to the normal rules of waiver and forfeiture. [01:15:57] Speaker 01: But even on the merits, the district court actually does say on JA 227, if any broader reliance issues, interests are affected in this case, the commission is to blame, unlike other agencies, the commission took insufficient curative action. [01:16:10] Speaker 01: That is a complete answer to their argument about the alleged equities here, the apples of the world who are going to be suffering, that they can fix it. [01:16:22] Speaker 01: The answer is not, yes, go ahead and continue. [01:16:26] Speaker 01: We're going to withhold an injunction. [01:16:28] Speaker 01: Go ahead and continue to enforce the conceitedly unconstitutional order. [01:16:33] Speaker 01: If you look at we made this point in our brief, it's very interesting if you they don't ever say this is impossible to fix. [01:16:39] Speaker 01: There's one sentence on page 30 of their reply brief where they say, well, it's complicated. [01:16:45] Speaker 01: Okay, well, many things are complicated in life, but that doesn't mean that that that means that they can basically be allowed to enforce and allegedly or conceitedly unconstitution. [01:16:58] Speaker 01: There's no further questions. [01:16:59] Speaker 01: Thank you. [01:17:06] Speaker 02: Thank you, Your Honors. [01:17:07] Speaker 02: You've already been very generous with your time, so I just want to make a few quick points. [01:17:12] Speaker 02: First, I want to emphasize that I heard Mr Landau repeatedly refer to a structural constitutional error in dealing with the axon type issue here. [01:17:22] Speaker 02: I just want to be clear that the district court here expressly said the opposite at JA 213. [01:17:27] Speaker 02: This is not the kind of structural challenge that involves being held in front of an unconstitutionally structured decision maker. [01:17:35] Speaker 02: which inflicts a here and now injury regardless of the outcome. [01:17:39] Speaker 02: His alleged injury here is much more limited. [01:17:42] Speaker 02: It is tied to the potential outcome of the proceeding, not the mere fact of having to appear before the ITC, who he concedes at JA 142 has jurisdiction. [01:17:54] Speaker 02: Second, [01:17:55] Speaker 02: He asks, why are we even doing this? [01:17:57] Speaker 02: Why is the ITC, this Javert-like entity, going out there? [01:18:01] Speaker 02: And I think there's two answers to that that I want to emphasize. [01:18:04] Speaker 02: The first is that it's important to the commission at least to ascertain the facts here, which it has not been allowed to do. [01:18:11] Speaker 02: He says all they had were some pin sites in a FOIA request. [01:18:14] Speaker 02: That's where it started. [01:18:16] Speaker 02: And then when we asked, it turned out [01:18:18] Speaker 02: Until recently, he'd kept his entire case file. [01:18:21] Speaker 02: That's what came out in the affidavit. [01:18:23] Speaker 02: So the fact that when there was an initial thread that the commission started pulling on, I think is certainly relevant if he's been disclosing information. [01:18:30] Speaker 02: We don't know that yet. [01:18:31] Speaker 02: He says he hasn't, but the commission hasn't had a chance to drill in. [01:18:35] Speaker 02: Obviously, that would implicate a far broader range of concerns. [01:18:38] Speaker 02: Um, the other aspect I want to emphasize here is I heard him repeatedly say we concede it's invalid. [01:18:44] Speaker 02: And I think that the protective order is invalid. [01:18:47] Speaker 02: And I think that that's not a great encapsulation of our position. [01:18:51] Speaker 02: What we haven't contested is that the ALJ wasn't properly appointed when it was issued. [01:18:56] Speaker 02: But under traditional principles of finality, the commission does not believe that it is enforcing an unconstitutional or unenforceable order. [01:19:04] Speaker 02: Before Lucia came down, literally millions of decisions were issued by ALJs in dozens of agencies. [01:19:11] Speaker 02: And for the most part, there were some Lucia claims preserved and the government had to redo a lot of cases on the basis of Lucia. [01:19:17] Speaker 02: But that number is dwarfed by the number that everybody has just assumed continue to have vitality. [01:19:23] Speaker 02: And yes, the government [01:19:24] Speaker 02: routinely continues to proceed on the basis of the validity of ALJ decisions that were issued pre 2010. [01:19:31] Speaker 02: The last thing I just wanted to do was a judge Walker. [01:19:35] Speaker 02: That that's the timely. [01:19:42] Speaker 02: That's the timeliness argument, not the consent argument. [01:19:45] Speaker 02: Um, and the and which goes into the collateral attack in the rider point. [01:19:50] Speaker 02: Um, and the last thing I just want to do, Judge Walker, you were asking about the regulatory [01:19:54] Speaker 02: scheme that underlies the protective order and what's being enforced here, I would refer the court to 19 CFR 210.25, which provides exactly as your honor suggested, the relevant set of regulations. [01:20:35] Speaker 06: Is your theory is the latest proceeding works as follows. [01:20:41] Speaker 06: Usually there was a statute authorizing regulation regulation is not challenged. [01:20:47] Speaker 06: The regulation says. [01:21:03] Speaker 02: So I think they go hand in hand. [01:21:05] Speaker 02: Part of the problem, this proceeded on the basis of letters to this point. [01:21:10] Speaker 02: So it was started with a letter. [01:21:12] Speaker 02: It's captioned, you know, possible breach of the protective order. [01:21:17] Speaker 02: But the reason the Commission, the regulatory authority underlying that, so to that extent, when I answered Judge Rao, what I was certainly saying, that we are proceeding on the basis of the protective order, not a contract theory, not just a bear violation of statute independent of the protective order. [01:21:32] Speaker 02: But the protective order very much goes hand in hand with, and the reason we have authority to enforce it is because of this underlying regulation. [01:21:42] Speaker 02: We can't do that. [01:21:43] Speaker 02: I want to be clear. [01:21:45] Speaker 02: So honestly, and the court should be aware of this, these are laid out in 210.134.C. [01:21:55] Speaker 02: Mostly, it's like letters of reprimand. [01:21:58] Speaker 02: Could be a private reprimand, could be a public reprimand. [01:22:01] Speaker 02: If it was more, they escalate. [01:22:05] Speaker 02: The most extreme things we can do are borrow you from practicing before the commission and a potential referral to your state bar authority. [01:22:18] Speaker 06: Yes, absolutely. [01:22:23] Speaker 06: That's correct. [01:22:29] Speaker 04: Thank you. [01:22:29] Speaker 04: Thank you. [01:22:30] Speaker 04: Thank you. [01:22:30] Speaker 04: You're on the council for vigorous and excellent arguments. [01:22:34] Speaker 04: Case is committed.