[00:00:00] Speaker 00: Case number 25-5144. [00:00:03] Speaker 00: Fathi Widdenswarar et al. [00:00:05] Speaker 00: versus Kerry Lake in her official capacity as Senior Advisor to the Acting CEO of the U.S. [00:00:11] Speaker 00: Agency for Global Media et al. [00:00:12] Speaker 00: at Balance. [00:00:14] Speaker 00: And case number 25-5145, Michael Abramowitz in his official capacity as Director of Voice of America et al. [00:00:22] Speaker 00: versus Kerry Lake in her official capacity as Senior Advisor to the Acting CEO of the United States Agency for Global Media et al. [00:00:30] Speaker 00: at Balance. [00:00:31] Speaker 00: and case number 25-5150 Middle East Broadcasting Networks Inc. [00:00:36] Speaker 00: versus United States of America et al. [00:00:39] Speaker 00: at balance and case number 25-5151 Radio Free Asia versus United States of America et al. [00:00:46] Speaker 00: at balance. [00:00:47] Speaker 00: Personnel issues. [00:00:49] Speaker 00: Ms. [00:00:49] Speaker 00: Stath for the imbalance, Ms. [00:00:51] Speaker 00: Jomans for the appellees, Mr. Schulz for the appellees. [00:00:55] Speaker 00: Ms. [00:00:55] Speaker 00: Stath. [00:00:56] Speaker 00: Good morning. [00:00:58] Speaker 01: Good morning, and may it please the court. [00:01:01] Speaker 01: My name is Abigail Stout, and I represent Appellants in this case, and will be addressing the employment and personnel issues. [00:01:08] Speaker 01: This case is about two fundamental flaws, lack of jurisdiction and lack of a cause of action. [00:01:14] Speaker 01: Helpfully, this court has passed on these very issues just last month in National Treasury Employees Union versus Vote, which squarely controls here. [00:01:25] Speaker 01: a national treasury in response to plaintiff's allegations that the Consumer Financial Protection Bureau was allegedly shutting down. [00:01:32] Speaker 01: This court held that the district court lacked jurisdiction to hear plaintiff's claims predicated on loss of employment, and the plaintiff's claims did not target final agency action under the Administrative Procedure Act. [00:01:45] Speaker 01: The same logic and rationale apply here. [00:01:49] Speaker 01: I'd like to focus on two points today. [00:01:51] Speaker 01: First, that the district court aired by ordering reinstatement of the agency's employees and contractors because the district court lacked jurisdiction over the agency's personnel actions. [00:02:02] Speaker 01: And second, that plaintiffs claims not cognizable because plaintiffs identified no final agency action. [00:02:09] Speaker 05: Do you think all plaintiffs are subject to some form of channeling under the first part of NTEU so that we don't reach the cause of action question or not? [00:02:23] Speaker 05: I mean, some cases for channeling are much stronger than others. [00:02:26] Speaker 05: I wonder if you think that decides the whole case. [00:02:31] Speaker 01: So it is our position that by either addressing the channeling or the cause of action under the APA, both would be dispositive to claims here. [00:02:40] Speaker 01: With respect to the plaintiff's claims and which ones are channeled, we have several sets and several types of plaintiffs at issue here. [00:02:47] Speaker 05: So we have the- I thought the weakest ones for channeling, I thought, were the RSF entities and maybe the [00:02:58] Speaker 05: TNG, the union that represents the grant employees of the grantees. [00:03:05] Speaker 05: So those are channeled. [00:03:07] Speaker 01: Two responses to that. [00:03:09] Speaker 01: First, with regard to the CSRA, the Supreme Court has been clear that it is a [00:03:13] Speaker 01: comprehensive and also exclusive scheme, meaning CSRA has laid out which remedies are available to which plaintiffs and which are not. [00:03:22] Speaker 01: So it would be an end run around the CSRA to allow plaintiffs like organizational plaintiffs who do not have employees with direct harms to them. [00:03:33] Speaker 05: Sure, for a union, but I thought they might be [00:03:40] Speaker 05: More claiming standing as listeners, which is something we permit in our FCC cases, for instance. [00:03:49] Speaker 05: And if there's a listener standing claim in here, that wouldn't be subject to CSRA channeling, would it? [00:03:56] Speaker 01: So to the extent that they are challenging individual employees' adverse employment actions, for example, employees being laid off or put on administrative leave, then we would argue that those types of claims [00:04:09] Speaker 01: are channeled to the CSRA. [00:04:10] Speaker 01: And to the extent that those organizational plaintiffs are not able to bring claims under there, then the scheme would preclude it. [00:04:17] Speaker 01: But to the extent that those organizations have more of the listener standing and are challenging the alleged decrease in broadcasting, for example, then that would be an APA action. [00:04:31] Speaker 01: And they would have to target final discrete agency action. [00:04:34] Speaker 01: and proceed under the APA there. [00:04:36] Speaker 01: But here the district court in its injunction had a mismatch. [00:04:40] Speaker 01: He ordered employment-related remedies while they alleged harms related to the APA and the alleged claim and the alleged dismantling of the agency. [00:04:51] Speaker 04: But how is it a mismatch if they're [00:04:55] Speaker 04: Let's say 1,147 full-time employees, which was what the Thomas Declaration, I believe, said, and all but about 100 of those employees were placed on administrative leave. [00:05:13] Speaker 04: The argument is that those hundred people can't fulfill the statutory mandate. [00:05:19] Speaker 04: And so that is either arbitrary and capricious because it doesn't comply with the executive order or arbitrary and capricious because it violates the statute that requires, that mandates certain activity being performed by the agency. [00:05:38] Speaker 04: Either way, [00:05:40] Speaker 04: The way that you remedy that is by telling the people to go back to work. [00:05:46] Speaker 04: So where's the mismatch? [00:05:48] Speaker 01: So we would respectfully push back on that last bit about telling people to go back to work. [00:05:53] Speaker 01: We do not dispute that the APA may allow courts to enter orders, for example, to do a certain something, a certain thing that the agency under by statute is required to do. [00:06:04] Speaker 01: And if plaintiffs withstanding [00:06:05] Speaker 01: then challenge an agency action that would violate that statute, then they could address it that way. [00:06:11] Speaker 01: Our main complaint here is that the district court went one step further. [00:06:15] Speaker 01: In addition to, under prong three of the injunction, ordering that VOA restore broadcasting consistent with the junction or consistent with the statute, it went a step further and then ordered that all USAGM employees and contractors be reinstated. [00:06:30] Speaker 01: It's that extra step that we say the district court was not permitted to do here. [00:06:34] Speaker 01: So, wrong 3 of the injunction. [00:06:37] Speaker 04: I don't understand. [00:06:42] Speaker 04: the argument that the district court wasn't permitted to do it. [00:06:46] Speaker 04: You might argue that the district court shouldn't have told all the employees, shouldn't have mandated that all of them go back, only some subset of them or something, if there was some record to support that. [00:07:00] Speaker 04: But where does it follow that the district court basically had no power or no authority to order the reinstatement [00:07:12] Speaker 01: So we would point to specifically Norton versus Southern Utah Wilderness Alliance in response to your your honors questions there the court was very clear to explain that although a district court under the APA may order the agency to take a certain action. [00:07:30] Speaker 01: It can't, and this is a direct quote, a court can compel the agency to act but has no power to specify what the action must be. [00:07:37] Speaker 01: And the court provided very good rationale for that. [00:07:40] Speaker 01: Doing so, requiring that certain employees are required for specific statutory functions or requiring that by name or by number, certain employees are required, the agencies required to use them would impermissibly put courts in. [00:07:56] Speaker 04: I'm not sure. [00:07:58] Speaker 04: I understand your reading of Norton. [00:08:00] Speaker 04: I mean, the whole point of the APA is to set aside unlawful agency action. [00:08:07] Speaker 04: If that's all that the district court is doing by saying that the agency action here, placing all of these employees on administrative leave was unlawful, so I'm setting aside, how does that have anything to do with this rule you're articulating from Norton? [00:08:27] Speaker 01: I think there are a couple responses to that. [00:08:29] Speaker 01: First, that we do not dispute that a court has the ability to set aside final agency action. [00:08:35] Speaker 01: But then secondly, the district court didn't analyze the employment disputes as a final agency action. [00:08:41] Speaker 01: And to the extent that it did, those would be and should be channeled under the CSRA. [00:08:46] Speaker 01: So to the first point, the district court, when analyzing what happened in its order, identified a, quote, slew of actions that the agency took, and then analyzed all of those actions in a lump sum and wholesale approach, just like Lujan cautioned that courts should not do. [00:09:01] Speaker 04: But I think we're mixing apples and oranges here. [00:09:07] Speaker 04: You're challenging an injunction. [00:09:10] Speaker 04: The injunction set aside an action which was placing people on administrative leave. [00:09:19] Speaker 04: The district court might have said a lot of things about a lot of different actions, but ultimately that injunction sets aside that one specific action. [00:09:29] Speaker 04: So tell me why that action wasn't final agency action. [00:09:33] Speaker 01: To the extent that this court construes that action of the agency setting, putting all the employees on administrative leave, then we would argue that that was improper because those claims should be channeled. [00:09:45] Speaker 04: So you're conceding that that was final agency action if we look at it that way? [00:09:51] Speaker 01: Your Honor, we would encourage the court to the extent it's helpful to kind of look at it as a decision tree. [00:09:56] Speaker 01: To the extent the court sees the decision to make certain personnel actions, then those should be channeled to the CSRA. [00:10:04] Speaker 04: Is it final agency action to place employees on administrative leave? [00:10:13] Speaker 01: We have not briefed to that issue, but we don't protest at this point that that would be a final agency action. [00:10:22] Speaker 01: Our argument is that it is not reviewable under the APA because [00:10:26] Speaker 01: decisions related to employment in adverse, especially adverse employment decisions are and should be channeled to the CSRA. [00:10:35] Speaker 04: So, okay. [00:10:38] Speaker 04: Let's talk about channeling. [00:10:40] Speaker 04: To the extent that the CSRA provides a remedy for the particular personnel action that is at issue. [00:10:57] Speaker 04: Is the analysis any different about kind of whether the district court is precluded from having jurisdiction than if the CSRA did not provide a remedy? [00:11:11] Speaker 04: I'm trying to understand whether we have to identify specifically for each personnel action, whether there was a remedy within the CSRA or not, or does that matter? [00:11:30] Speaker 04: We still do essentially the kind of thunder basin block analysis, whichever way that cuts. [00:11:38] Speaker 01: It's our position that you would do the thunder basin analysis whichever way that cuts. [00:11:43] Speaker 01: A national treasury is extremely instructive on that point. [00:11:46] Speaker 01: They're very similar to here. [00:11:47] Speaker 01: The CFPB had taken a large volume of employment-related actions. [00:11:52] Speaker 01: In a national treasury, this court went through each of the three thunder basin factors and point by point discussed why those claims should be channeled. [00:12:00] Speaker 01: So for example, in the first point that the finding of preclusion would not foreclose meaningful judicial review, [00:12:08] Speaker 01: There it said that if injuries arise from adverse employment actions, the MSPB and the FLRA may remedy those injuries by reinstatement and back pay, which are exactly the remedies that the employees here would be seeking. [00:12:21] Speaker 01: So not only would they be able to get those remedies under the appropriate administrative scheme, they would then have the ability to, on appeal, have review by a federal court as well. [00:12:33] Speaker 01: Then on the not only collateral point, National Treasury explains that seeking to reverse removal decisions or decisions regarding any kind of adverse enslavement or personnel action is precisely the type of challenge that the CSRA contemplated. [00:12:49] Speaker 01: Indeed, it's the heartland of the CSRA. [00:12:52] Speaker 01: And then finally about expertise here, if the remedy is reinstatement and the remedy is related to employment related actions, and that again is the heartland of CSRA coverage. [00:13:04] Speaker 01: This analysis doesn't change to your honor's point. [00:13:07] Speaker 04: To the extent that the claim is that. [00:13:11] Speaker 04: This agency is mandated to fulfill certain obligations and wholesale placement of over 90% of its staff when administrative leave basically prevents it from fulfilling its statutory [00:13:39] Speaker 04: mission, how is that the kind of claim that either the special counsel or the MSPB has any special expertise resolving that sort of a dispute? [00:13:58] Speaker 01: Here we would rely on national treasury and we would also point to Elgin. [00:14:02] Speaker 01: The court in Elgin was clear that just because a constitutional or statutory claim is implicated, indeed there the plaintiff said that the adverse employment action taken against him [00:14:14] Speaker 01: was because the agency was violating the statute and it was unconstitutional. [00:14:19] Speaker 01: Very similarly here, to the extent any personnel claims are based on the agency not complying with the statute or any kind of constitutional claims, those would not preclude review under the CSRA based on Elgin's reasoning and then based on National Treasury's reasoning. [00:14:36] Speaker 04: So National Treasury also talked about the [00:14:51] Speaker 04: fact that there are claims challenging kind of wholesale agency actions that could be reviewable under the APA. [00:15:05] Speaker 04: And there's someone here who knows a little bit about what National Treasury says, but [00:15:18] Speaker 04: It points out that to the extent that there is an agency action that could be deemed final agency action that purports to terminate an agency program, that that could be reviewable under the APA, notwithstanding the comprehensive statutory scheme, right? [00:15:42] Speaker 01: So I want to pull apart a few portions there. [00:15:45] Speaker 01: First, to the extent that there is a wholesale programmatic challenge being alleged, we would say that that is not reviewable agency action. [00:15:52] Speaker 01: To the extent that there is a reference to the comprehensive review scheme and it would implicate employment-related disputes or employment-related actions, then we would say that's channeled to the CSRA. [00:16:03] Speaker 01: But to the extent that a plaintiff with standing is coming in and saying, I have been harmed because of a [00:16:10] Speaker 01: agency program that has been terminated and there is a final agency action to terminate that program, then we would say that that could be a cognizable claim under the APA. [00:16:20] Speaker 01: But that's simply not what happened here. [00:16:22] Speaker 01: Here plaintiffs challenge explicitly that the agency action was the alleged wholesale dismantling of USAGM and Voice of America. [00:16:34] Speaker 01: And that runs into several problems under the final agency action test that the Supreme Court has said is required for APA review. [00:16:42] Speaker 01: First, there's a discreteness problem. [00:16:45] Speaker 01: under the district court's own order. [00:16:48] Speaker 01: Rather than analyzing a single policy, it analyzed a bunch, a slew of agency actions. [00:16:55] Speaker 01: So there's a discreteness problem there. [00:16:57] Speaker 04: Well, the district court did look at a slew of actions because the plaintiffs asked them to look at a slew of actions. [00:17:06] Speaker 04: But ultimately, the court, the NUB, [00:17:10] Speaker 04: of the District Court's preliminary injunction was the administrative leave. [00:17:17] Speaker 04: And the Thomas Declaration says what's obvious, which is that, you know, one day there's an executive order, and then the next day pursuant to that executive order, we placed every one one lead. [00:17:35] Speaker 04: That was essentially one agency action. [00:17:40] Speaker 04: So why shouldn't we look at that as a discrete agency action placement of those employees on leave? [00:17:51] Speaker 01: Well, first, I don't even take plaintiffs to be alleging that [00:17:55] Speaker 01: decision to place a large amount of employees on administrative leave is the agency action that they're challenging. [00:18:02] Speaker 01: Instead, they're challenging something even broader than that, the alleged dismantling of USAGM and Voice of America. [00:18:09] Speaker 04: Well, they're saying that the dismantling is happening. [00:18:16] Speaker 04: The agency announced that it's dismantling it. [00:18:19] Speaker 04: There's, you know, lots of statements to that effect. [00:18:21] Speaker 04: And then the methodology by which they're dismantling it, there's several different actions, but one of them is placing almost everybody on administrative leave. [00:18:34] Speaker 04: So if we just zero in on that as the action, why isn't that a discrete final agency action? [00:18:45] Speaker 01: Well, in addition to plaintiffs not even challenging that as a discrete final agency action, I would also say that trying to analyze a volume of employment related decisions doesn't get out of the [00:18:57] Speaker 01: CSRA issues. [00:18:58] Speaker 01: So just because there are a lot of employment-related decisions being made, that doesn't mean that CSRA channeling is all of a sudden precluded. [00:19:07] Speaker 01: And that would actually put the court in a very tricky position if that was the test, because then the question would be, how many employment-related decisions would rise to the level of then becoming an action reviewable under the APA, which not only runs contrary to APA law, but would also just be a pragmatic issue [00:19:26] Speaker 01: hard to administer for the court. [00:19:28] Speaker 04: I'm trying to understand your argument. [00:19:31] Speaker 04: You're saying that if the employment actions have the effect of shutting down an agency, channeling [00:19:52] Speaker 04: The channeling through the CSRA makes them unreviewable even if they have that effect. [00:19:57] Speaker 04: Is that your argument? [00:19:59] Speaker 01: So our argument is that those employment related decisions would be unreviewable because of the CSRA. [00:20:07] Speaker 01: But our argument is not that all actions, basically the harm that plaintiffs are getting at is this alleged dismantling of USAGM and Voice of America. [00:20:16] Speaker 01: And our position is not that they could never challenge anything that the agency has done over the past few months. [00:20:21] Speaker 01: Our argument is that they are required to follow the APA procedure and challenge final agency action. [00:20:26] Speaker 01: And that can't be just this broad decision or broad alleged policy of dismantling the agency. [00:20:34] Speaker 04: You want to characterize it as that, but I mean, we review records and we review what the district court said. [00:20:44] Speaker 04: And I'm looking at the district court's memorandum opinion and [00:20:52] Speaker 04: I mean, page one of the memorandum opinion, the district court says that the plaintiffs allege that the agency's actions purportedly in furtherance of the executive order terminating and threatening to terminate the majority of staff, ending grants, et cetera, et cetera, violate all of these different constitutional principles and acts. [00:21:21] Speaker 04: Throughout the opinion, the district court is making it clear that, yes, there's lots of different things that the plaintiffs are saying are threatening the agency, but first and foremost, it's about placing everyone on leave. [00:21:43] Speaker 04: And indeed, that is from one [00:21:49] Speaker 04: of the injunction, and it doesn't deal with all of these other things that are complained about, the grants and other things. [00:22:02] Speaker 04: It's about placing these people back in the position they were before the executive order. [00:22:09] Speaker 04: So you've got to deal with that. [00:22:17] Speaker 04: I don't understand your argument because there was a lot of wasted ink in National Treasury v. Vought talking about, well, what if this was a shutdown? [00:22:32] Speaker 04: If that were irrelevant because channeling precludes the cause of action completely under the APA, then why did the court [00:22:45] Speaker 04: spend all of that time talking about why this wasn't that sort of an action. [00:22:50] Speaker 04: Help me understand that. [00:22:52] Speaker 01: So I think to the extent, Your Honors, concerns relate to the ability for plaintiffs who are harmed to redress their harm. [00:23:00] Speaker 01: I want to say that our argument is not that all of the plaintiffs here are without a forum to address their harm. [00:23:08] Speaker 01: The individual employees have a forum in the CSRA to address their personnel decisions. [00:23:13] Speaker 01: to the extent that plaintiffs are concerned about the agency stopping certain agency programs, stopping certain broadcasting, stopping certain obligations that it has under statutes, plaintiffs have the ability to challenge those things. [00:23:30] Speaker 01: based on the APA review and the specific way that Congress crafted it to require agency action, which is a very defined term, a term of art, not everything that the agency does. [00:23:40] Speaker 01: And the Supreme Court's interpretation of that term, agency action, to reject it to be a challenge to programmatic challenges, as Lujan and Sua make very clear. [00:23:51] Speaker 01: The plaintiffs simply didn't do this in the way that they were supposed to. [00:23:55] Speaker 04: Just placing someone on administrative leave [00:23:59] Speaker 04: A final agency action. [00:24:03] Speaker 01: If the court construes it as a final agency action, then we would say that an individual personnel decision should be channeled to the CSRA. [00:24:14] Speaker 04: Is it a final agency action, yes or no? [00:24:19] Speaker 01: We haven't briefed that particular issue, but we don't protest at this point in time and for the purpose of the hypothetical. [00:24:28] Speaker 01: would say that if it is a final agency action, then it should be channeled to the CSRA because it's explicitly an individual personnel decision that the CSRA contemplates reviewing. [00:24:39] Speaker 04: But what I'm trying to get at is that the record before us and the record before the district court was that an executive order was issued and then the next day pursuant to that executive order, [00:24:57] Speaker 04: What is it? [00:24:59] Speaker 04: 1047, 1042 full-time employees were placed on administrative leave. [00:25:10] Speaker 04: And then other things happened with people under personal service contracts. [00:25:14] Speaker 04: But let's just keep things simple and let's talk about the full-time employees. [00:25:21] Speaker 04: If you have, tell me why we shouldn't consider that decision to be at least for discreteness purposes, in finality purposes, in concreteness purposes, a final agency action. [00:25:42] Speaker 01: So I think there are a few problems with considering that as a decision [00:25:47] Speaker 01: in the first place. [00:25:48] Speaker 01: So to step back, plaintiffs can point to no directive, memorandum, email, document, any kind of directive written or oral to show or to specifically challenge related to employment, employees being placed on leave. [00:26:05] Speaker 01: So there's not a document that plaintiffs can point to saying this is the [00:26:09] Speaker 01: agency's decision to place everyone on an administrative leave and this is what we're challenging is the final agency action. [00:26:16] Speaker 01: Now we would maintain our arguments that even these are all employment related disputes and just because there are a lot of them doesn't mean that they are precluded from the CSRA but even if [00:26:26] Speaker 01: we were to go down this argument and say, there was some kind of single decision. [00:26:33] Speaker 04: I mean, the Thomas Declaration says that because pursuant to the executive order, the agency placed 1,042 full-time employees on administrative leave with full pay and benefits. [00:26:50] Speaker 04: Are we saying that because the agency didn't [00:26:55] Speaker 04: put that on letterhead and say that on March 15th? [00:27:02] Speaker 04: That's why it's not final agency action? [00:27:06] Speaker 01: The APA does require, it gives definition of what agency action is. [00:27:10] Speaker 01: It requires it to be rule or sanction or license or withholding of such actions. [00:27:16] Speaker 01: And so it is important that plaintiffs be able to point to something that is one of those things to challenge agency action. [00:27:25] Speaker 01: And here, that is not present, even with these multiple employment-related decisions. [00:27:35] Speaker 01: For plaintiffs to lump those all together and then call that a final agency action runs into the problem the National Treasury identified, where there were a bunch of discrete actions taken. [00:27:45] Speaker 01: And then plaintiffs lumped them all together and put it under a title. [00:27:49] Speaker 04: And they're challenging that. [00:27:50] Speaker 04: They didn't lump them together. [00:27:52] Speaker 04: The executive lumped them together. [00:27:54] Speaker 04: I mean, is there any reason why we shouldn't credit the Thomas Declaration? [00:28:02] Speaker 04: Crystal Thomas lumped them together. [00:28:05] Speaker 01: Even though there were a volume of employment related actions, that doesn't mean that each of them shouldn't be treated individually. [00:28:12] Speaker 01: The CSRA provides a mechanism to do that. [00:28:15] Speaker 01: And I think that the record below as it's played out also [00:28:20] Speaker 01: is informative on this point, that the people's employment statuses are not what they were in March. [00:28:26] Speaker 01: There have been a variety of changes and fluxes since then. [00:28:30] Speaker 01: And so to treat everyone in a lump sum rather than to treat employment decisions as individual and [00:28:36] Speaker 01: as they should be channeled under the CSRA would not only in run around the CSRA, but impermissibly lump all these together and put a title on it, which is exactly what Lujan warned that should not be done under the APA. [00:28:50] Speaker 05: Is there any dispute about what happened? [00:28:57] Speaker 05: I mean, this one, [00:29:00] Speaker 05: piece of the case seems to me a little bit different from NTEU. [00:29:06] Speaker 05: In NTEU, the shutdown decision was inferred and built up from a bunch of different kinds of agency action, and it was vehemently denied by the agency, and it seemed like the agency's position was shifting over time. [00:29:25] Speaker 05: I mean, just on the question whether [00:29:30] Speaker 05: Bunch of employees were placed on administrative leave right after the EO. [00:29:35] Speaker 05: We think that's a pretty specific question for which there's a pretty clear answer. [00:29:42] Speaker 01: I think that that doesn't take it out of the fact that it is an inherently employment related. [00:29:49] Speaker 05: I agree with that, but I think you were fighting Judge Wilkins on the. [00:29:54] Speaker 05: final agency action, you know, the second half of NT rather than the first half. [00:29:59] Speaker 05: And that was a little surprising to me. [00:30:03] Speaker 01: The agency status right now, since the [00:30:06] Speaker 01: entering of the injunction on April 22nd has obviously changed a lot. [00:30:11] Speaker 01: Prong 3 of the injunction ordered the agency to restore voice of America broadcasting consistent with the statute. [00:30:19] Speaker 01: So the agency is currently broadcasting consistent with the statute and obviously has changed its personnel decisions consistent with that. [00:30:27] Speaker 01: Similar to NTAU, the agency acknowledges that [00:30:32] Speaker 01: it does not have unilateral power without an act of Congress to dismantle itself. [00:30:37] Speaker 01: And that's also why plaintiffs claim that there has been an alleged policy of dismantling [00:30:43] Speaker 01: does not hold up. [00:30:44] Speaker 01: Not only is there not a formal memorandum or decision or directive that they can point to saying that there's such an alleged policy, but that's inconsistent with the executive order, which orders that the agency's actions be taken down to the statutory minimum and also inconsistent with what the agency is currently doing today. [00:31:02] Speaker 01: in terms of personnel and also in terms of broadcasting. [00:31:05] Speaker 01: And I think that's also a point for why programmatic challenges are improper under the APA. [00:31:11] Speaker 01: And Sue was reasoning for why judicial management of an agency and all of its particulars would be problematic because it would lead to [00:31:24] Speaker 01: over broad judicial management, which is not only not administrable, but also puts the judicial branch in a position of trying to manage a lot of complex policy decisions that the agency is better suited to manage. [00:31:37] Speaker 04: Are you asking us to stay the preliminary injunction based on change facts since the time that it was entered? [00:31:48] Speaker 04: Seems like that's an argument you take to district. [00:31:52] Speaker 04: not to us. [00:31:54] Speaker 04: So we can't assess what facts have changed or not. [00:31:56] Speaker 04: We don't find facts. [00:31:58] Speaker 04: We review factual findings. [00:32:01] Speaker 01: Your honor, we would submit that the court could decide this case on the record that it has before us. [00:32:05] Speaker 01: We're not asking this court to find additional facts based on the fact that there's no final agency action for this court to review. [00:32:13] Speaker 01: And then based on the fact that an employment related remedy is not proper under an APA claim. [00:32:19] Speaker 01: And that's the general heart of this case and what happened here. [00:32:23] Speaker 01: The APA allows a district court to order an agency to do something, but it doesn't then permit the court to go one step further and order the agency how to do it. [00:32:35] Speaker 01: And in particular here, with what employees to do it with, whether a number or by name, i.e., these specific group of employees who was working prior to March 14. [00:32:47] Speaker 06: All right, we'll give you a couple of minutes and reply. [00:32:50] Speaker 06: Thank you. [00:33:05] Speaker 02: Good morning, Your Honors. [00:33:06] Speaker 02: Georgina Yeomans for the Whittaker-Suara plaintiffs. [00:33:09] Speaker 02: I'd like to say a few things about final agency action and then discuss channeling. [00:33:15] Speaker 02: On the question of whether the blanket placement of employees on administrative leave is a final agency action and whether that's an appropriate thing to find on this record, I will point out that that is what Judge Lamberth held in his memorandum opinion at pages 24 to 25. [00:33:29] Speaker 02: He identified several different acts [00:33:31] Speaker 02: actions that he thought were final agency actions, one of which was the blanket placement of employees on administrative leave. [00:33:38] Speaker 02: And in terms of a statement, to the extent the court believes that an agency statement announcing its decision is required to constitute final agency action, we have not only the Thomas Declaration that Judge Wilkins identified, but we also have a press release on agency letterhead [00:33:53] Speaker 02: issued on March 15th, which is at J88 of the record in which USAGM said discusses implementing the executive order and says most USAGM staff affected by this action will be placed on paid administrative leave beginning Saturday, March 15th. [00:34:10] Speaker 02: So we do actually have a agency statement to that effect. [00:34:16] Speaker 02: In terms of channeling Judge Katz's, I'd like to begin with your question about third parties and whether their claims should be channeled to administrative agencies. [00:34:24] Speaker 02: And you're exactly right to pick up on the Reporters Without Borders and the News Guild plaintiffs, both of which the records show have members who live and or report in countries that are affected by authoritarianism and don't have access to a free press. [00:34:37] Speaker 02: And for that reason, they rely on USAGM reporting to inform their personal safety. [00:34:43] Speaker 02: And in the Reporters Without Borders context as an organization, they rely on these outlets to disseminate their own reporting and the work that they do. [00:34:53] Speaker 05: Just help me drill down a little on those two, what the theory of injury and standing are. [00:35:01] Speaker 05: Am I right for Reporters Without Borders, it's effectively a listener standing [00:35:07] Speaker 02: It is effectively a listener standing injury. [00:35:10] Speaker 02: It's not something that has been contested, their standing, or the News Guild on this basis. [00:35:14] Speaker 02: But yes, there's a very detailed declaration in the record from the Reporters Without Orders representative, which is at JA124. [00:35:24] Speaker 02: And she details extensively that they have members who live and report in [00:35:29] Speaker 02: Afghanistan, our media, Azerbaijan, Bangladesh, Cambodia, the Democratic Republic of Congo. [00:35:36] Speaker 02: I can go on and on, but there are about a dozen countries where the reporters rely on these as pretty much the only source of independent news to, for instance, inform them when there's going to be a crackdown on free press and they might be in danger of being put in prison. [00:35:52] Speaker 02: So that is their harm. [00:35:54] Speaker 02: And then as an organization, RSF also has the dissemination of their work, as I mentioned earlier. [00:36:00] Speaker 05: I hadn't thought of this point, honestly, until this morning. [00:36:04] Speaker 05: So just help me run it to ground a little bit. [00:36:07] Speaker 05: If you think of it as listener standing, I understand everything you just said. [00:36:13] Speaker 05: Another possible [00:36:15] Speaker 05: Analogy is informational standings concept we use in our FOIA cases where we say you need to claim. [00:36:26] Speaker 05: an entitlement to the information that you're seeking. [00:36:29] Speaker 05: And it seems like a little bit of a stretch to say, I mean, there's a duty on the agency to broadcast. [00:36:37] Speaker 05: It seems like a little bit of a stretch to say that any one listener has an entitlement to any one program. [00:36:46] Speaker 05: which may be a problem if it's an informational standing case, but I don't recall that our listener standing cases impose that requirement. [00:36:56] Speaker 05: So how do I think of that issue? [00:36:58] Speaker 02: The theory is not that there's an entitlement to any one program. [00:37:01] Speaker 02: The theory is really an APA theory that there was a cessation of programming on which these plaintiffs relied without the kind of reason decision making that's required before an agency engages in such a dramatic change in course so that [00:37:15] Speaker 05: Put aside the recent decision, just the injury. [00:37:20] Speaker 02: It's the loss of the programming. [00:37:21] Speaker 02: So one day on March 14, there was a regular, reliable programming. [00:37:24] Speaker 02: The next day, it went silent. [00:37:25] Speaker 02: And these people are harmed as listeners because of that loss of programming. [00:37:30] Speaker 05: And how about the last? [00:37:31] Speaker 05: The last plaintiff, as I understand it, is a union representing employees of the grantee. [00:37:41] Speaker 05: So why did they, I mean, they seem like they're in a way less removed than the unions representing the employees of the agency. [00:37:53] Speaker 05: Like either they're no better off than those unions or they're lumped up in the grants issue, which we think are moot. [00:37:59] Speaker 05: Like what is, do they have any theory for standing [00:38:04] Speaker 05: Yes. [00:38:05] Speaker 05: That above and beyond what Reporters Without Borders has. [00:38:10] Speaker 02: Oh, sorry. [00:38:10] Speaker 02: Not above and beyond. [00:38:11] Speaker 02: They, but let me just explain. [00:38:12] Speaker 05: It's just the same. [00:38:13] Speaker 05: They just raise the same. [00:38:14] Speaker 02: But it's not on behalf of their members who work at Radio Free Asia. [00:38:18] Speaker 02: The News Guild is a union of 27,000 reporters, including people who work for the Wall Street Journal and the APA and various international outlets. [00:38:26] Speaker 05: So this is- What's their theory? [00:38:27] Speaker 05: Is it just the same listeners? [00:38:29] Speaker 02: This is on behalf of people, exactly, who report in these countries as well. [00:38:32] Speaker 02: Yeah. [00:38:33] Speaker 02: And this court has never held that such parties are channeled to administrative agencies merely because the relief that they're asking for would implicate federal personnel. [00:38:44] Speaker 05: They have standing as listeners. [00:38:45] Speaker 05: I agree with that. [00:38:46] Speaker 02: Absolutely. [00:38:47] Speaker 02: OK, great. [00:38:48] Speaker 02: And I think that's what the NTU opinion. [00:38:50] Speaker 02: That's what I'm trying to tell you. [00:38:51] Speaker 02: Yes. [00:38:51] Speaker 02: Yes, that is the theory I'm standing on. [00:38:53] Speaker 05: I mean, in FCC terms, it's like listener standing. [00:38:57] Speaker 05: In NTEU terms, it's like the NAACP, which is consuming services that the agency, the allegedly shuttered agency is providing. [00:39:07] Speaker 02: Absolutely. [00:39:07] Speaker 02: That's exactly it. [00:39:08] Speaker 02: They consume the services that this allegedly shuttered agency is providing. [00:39:11] Speaker 02: And the court held that as a matter of 7061 as well, like the failure to provide international black [00:39:16] Speaker 02: So I think if your honor is satisfied that those parties would not be channeled for that reason, I'll talk about our other channeling argument, which is that even the employees who are placed on administrative leave should not be channeled because of the unilateral removal of certain members of each administrative agency created by the CSRA. [00:39:37] Speaker 02: That's a tougher one for you. [00:39:39] Speaker 02: I disagree. [00:39:41] Speaker 02: So this is an argument that we have made at every stage of this litigation. [00:39:45] Speaker 02: And that's reflected in the response that we filed on Friday to the 28 J letter. [00:39:48] Speaker 02: Just want to make sure that's clear. [00:39:50] Speaker 02: But that the Fourth Circuit recently adopted in June in an opinion called Owen. [00:39:54] Speaker 02: And the argument goes that Thunder Basin is a doctrine of jurisdiction stripping by implication. [00:40:01] Speaker 02: So is it a plausible and fair inference from a comprehensive statutory scheme that Congress intended these disputes to be channeled to administrative agencies? [00:40:10] Speaker 02: And one of the fundamental premises of the CSRA is that the administrative agencies adjudicating these disputes will be independent from the president. [00:40:19] Speaker 02: So I'd just like to quote from the third line of the Senate report that we cite in our brief. [00:40:22] Speaker 02: It's 95969. [00:40:23] Speaker 02: It provides for an independent merit systems protection board and special counsel to adjudicate employee appeals and protect the merit system. [00:40:33] Speaker 02: That same report is replete with references to the independence of these boards specifically from the president and includes discussion of the FLRA as well throughout the report. [00:40:42] Speaker 02: And with the president's removal of those agency heads without cause, they are no longer insulated by removal protections and therefore no longer enjoy that independence that was a fundamental aspect of the CSRA when it was passed. [00:40:58] Speaker 02: So for that reason, we think that this is a Thunder Basin step one argument. [00:41:02] Speaker 02: And NTU obviously didn't engage in that sort of logical antecedent question of whether Thunder Basin step one is still a fair inference in the world that we're living in. [00:41:11] Speaker 02: And I will say that the removal of each of those individuals happened before the actions at issue in this case. [00:41:17] Speaker 02: So at the time that these employees were placed on administrative leave, [00:41:22] Speaker 02: individuals had been removed and the remaining members of those adjudicatory boards were on notice that they could be removed for any reason, including reaching a decision that the executive disagrees with. [00:41:35] Speaker 02: Did I convince you? [00:41:37] Speaker 04: Do you have any other argument with respect to channeling beyond the theory you just articulated supported by the Fourth Circuit case? [00:41:49] Speaker 02: Beyond that and beyond the third parties, which we think supports the entire relief in this case, including prong one of the injunction because it was necessary to vacate the agency action that caused this harm, we also think that this case is distinguishable from NTU on step two. [00:42:04] Speaker 02: I recognize that's a harder argument to make now with NTU. [00:42:07] Speaker 02: But because this is not a collection of individual personnel actions and because there is an indisputed [00:42:14] Speaker 02: Policy in place under which each of these actions took place to close the agency were challenging a sweeping undifferentiated personnel action in the service of an agency, ceasing its mandatory statutory functions, which we think distinguishes it from NTEU. [00:42:30] Speaker 02: So those are the three reasons we think that there was jurisdiction. [00:42:34] Speaker 04: So that, just so I'm clear, you're saying that that's an argument that this is collateral. [00:42:41] Speaker 02: Exactly. [00:42:41] Speaker 04: The CSRA. [00:42:42] Speaker 02: Yes, and I think the O-1 argument can also go to the availability of meaningful judicial review, or excuse me, meaningful review, because if you look at Algen, [00:42:50] Speaker 02: In engaging in that analysis and in sort of cabining the Webster versus Doe presumption of review over constitutional questions relies on Thunder Basin and a part of that opinion that stresses the independence of the Mine Act and the Commission review as sort of alleviating the concerns of channeling constitutional questions. [00:43:09] Speaker 02: So I think both the collateral prong and the meaningful judicial review are meaningfully different, given the arguments that we've made in this case. [00:43:18] Speaker 04: I would think that you would rely also on Axon because Axon points out that effectiveness of the review is something that should be taken into account. [00:43:30] Speaker 02: Absolutely. [00:43:31] Speaker 02: Axon is one of our primary cases. [00:43:33] Speaker 02: And I also think that when we're in this land of non-independence of the agency, the general reliance on judicial review as a backstop is less secure, as we've seen in cases like Darkecy, where if you don't have independence at the agency level and you have deferential review on judicial review, there's not necessarily the protections in place that are necessary to ensure a fair record and a full unfair review. [00:44:00] Speaker 04: Trying to understand the CSRA scheme, placement of an employee on administrative leave with pay would generally not be considered to be the type of action that's akin to a termination, et cetera, under, I think it's 75-12. [00:44:30] Speaker 04: that could be appealable to the MSRB. [00:44:35] Speaker 02: MSPB. [00:44:35] Speaker 04: MSPB. [00:44:36] Speaker 02: Yes. [00:44:37] Speaker 04: Mixing up all these acronyms here. [00:44:41] Speaker 04: But under cases from our court like Calducci and others that have said that, well, it could be a prohibited [00:44:55] Speaker 04: personnel practice because placement on leave, even with pay, is a personnel practice. [00:45:03] Speaker 04: And it could be a prohibited personal practice if it's done for one of the bad reasons. [00:45:11] Speaker 04: And one of the bad reasons is if it's an action that's done arbitrarily. [00:45:18] Speaker 04: And that's deemed to have a broad meaning. [00:45:22] Speaker 04: So if that's the case, then [00:45:25] Speaker 04: I would suppose that your friends on the other side would say that as a prohibited personnel practice, your client's remedy is to go to the special counsel. [00:45:41] Speaker 04: and asked for that prohibited personnel practice to be investigated. [00:45:46] Speaker 04: And then if the special counsel finds that it was arbitrary and therefore prohibited personnel practice because it didn't comply with the statutory mandate, special counsel would ask the MSPB to stay the action. [00:46:07] Speaker 04: and could do so on a class-wide basis or a collective action basis, so for all 1,042 employees, and there's your remedy. [00:46:20] Speaker 02: I think that also runs into the own argument, though, because it does depend on the special counsel being willing to take that [00:46:26] Speaker 02: allegation to the MSPB. [00:46:28] Speaker 02: And the special counsel was one of the individuals who was removed without cause. [00:46:32] Speaker 02: So whether or not these employees can count on getting a fair process before the special counsel, I think is an open question. [00:46:39] Speaker 04: Isn't there an acting special counsel? [00:46:40] Speaker 02: There is. [00:46:41] Speaker 02: But I think the broader point is that that person knows that they can be removed at any time. [00:46:45] Speaker 02: So their decision making is not divorced from accountability to the executive whose very actions that person is charged with. [00:46:53] Speaker 02: adjudicating fairly to ensure fairness to federal employees? [00:46:57] Speaker 04: Well, people will do the right thing even if there might be consequences like firing. [00:47:03] Speaker 04: There are people of character and courage out there. [00:47:07] Speaker 04: The acting special counsel could say, this was arbitrary. [00:47:11] Speaker 04: I'm restating all these people. [00:47:14] Speaker 04: Let the chips fall where they may. [00:47:16] Speaker 04: So you've got a remedy. [00:47:19] Speaker 02: I think that is true that people do the right thing all the time. [00:47:22] Speaker 02: But I think the question, at least to the own argument, is whether Congress wanted to depend on people doing the right thing on a case-by-case basis and sending all of these issues to an adjudicator that can no longer have that protection that insulates the decision to do the right thing. [00:47:38] Speaker 02: And I understand that this is an uphill battle, in part because [00:47:43] Speaker 02: There are a lot of claims brought before the MSPP. [00:47:45] Speaker 02: But I don't think that finding for us on this argument would require saying that every single claim under the CSRA can come to district court as an initial matter. [00:47:52] Speaker 02: I think the question is whether there's still an implication of jurisdiction stripping of claims that exist independently of the CSRA, like APA claims and like constitutional claims. [00:48:02] Speaker 05: Sorry, what's the line you're drawing there? [00:48:07] Speaker 05: Couldn't any? [00:48:10] Speaker 05: allegedly unlawful employment action be cast as one that is arbitrary in APA terms? [00:48:18] Speaker 02: Possibly, but it might not be meritorious. [00:48:20] Speaker 02: Those wouldn't be claims. [00:48:22] Speaker 05: What would distinguish the good district court actions from the valid ones from the invalid ones? [00:48:29] Speaker 02: Motions to dismiss, being able to dispose with those quickly. [00:48:32] Speaker 02: And having a cause, I guess. [00:48:34] Speaker 05: But substantively. [00:48:36] Speaker 02: No, I mean, I think that there's not a ton to distinguish them substantially. [00:48:38] Speaker 02: That's right. [00:48:39] Speaker 02: But I think that the remedies that Congress created in the MSPB, or sorry, whether the cause of actions that Congress created through the CSRA, it would have intended to still be enforceable in district court is the question. [00:48:50] Speaker 02: That's sort of what I'm trying to get at. [00:48:53] Speaker 02: I'd also, if I may, like to briefly address the point that the injunction was over. [00:48:58] Speaker 05: Sorry, just let me try once more. [00:49:03] Speaker 05: Are you saying that in light of the for-cause, sorry, not for-cause removal of MSPB and the special counsel and MSPB members and FLRA members now, [00:49:23] Speaker 05: Any employment, any challenge to an adverse employment action by a federal employee can go to district court because the CSRA scheme is just broken. [00:49:40] Speaker 02: The argument we're making is that the implication of channeling cannot survive the lack of independence. [00:49:46] Speaker 02: That's a yes. [00:49:47] Speaker 02: I think that's plausibly a yes. [00:49:49] Speaker 02: I think the concern is heightened in cases like this where there's an allegation of [00:49:55] Speaker 02: executive overreach and executive unlawful action. [00:49:59] Speaker 02: But that is, I think, a potential implication of the argument I'm making, yes. [00:50:03] Speaker 02: And then I'd also like to just briefly address the argument that part three is overbroad to remediate third party harms because your honor was interested in the third parties. [00:50:13] Speaker 02: And because Ms. [00:50:14] Speaker 02: Stout talked about the sort of status of programming today, I'll just state that within the absence of prong one of the injunction, programming has not resumed the majority of the parties identified in the Bruton Declaration, so has not remediated that irreparable harm that was brought before the district court. [00:50:29] Speaker 02: And we think it was an appropriate exercise of Judge Lambert's discretion to [00:50:33] Speaker 02: see that each part of the injunction was necessary to both walk back the unlawful agency action and preserve the status quo pending the end of litigation, which is an appropriate use of a preliminary injunction. [00:50:46] Speaker 05: So just one quick question on the scope of the injunction if we get there. [00:50:51] Speaker 05: It clearly requires restoration to pre-EO employment levels. [00:50:59] Speaker 05: And then he, in the stay order, he clearly permits terminations for cause. [00:51:07] Speaker 05: Do you read his order as prohibiting a riff? [00:51:15] Speaker 05: I read his order as in other words, it's not not an issue of employee misconduct. [00:51:22] Speaker 05: And let's assume we're not talking about 90%. [00:51:24] Speaker 05: It's just kind of the ordinary downsizing one would expect in a change of administrations and the agency wants to lay off 10% by riff. [00:51:35] Speaker 05: Can they do that? [00:51:36] Speaker 05: That's right. [00:51:38] Speaker 02: I read his order as permitting that type of action on the premise that there was compliance with the APA in terms of a reasoned decision-making, thinking through who was necessary in order to fulfill the agency's obligations. [00:51:53] Speaker 02: And obviously, a RIF will change the amount of programming. [00:51:56] Speaker 02: So thinking through ahead and considering stakeholders and a reasoned decision-making on that change in programming. [00:52:05] Speaker 02: So I think I view it as prohibiting the exact same rift, right? [00:52:11] Speaker 05: This is very much like the problem that the NTEU panel faced on the state litigation, where we just had the scope of the injunction before us. [00:52:22] Speaker 05: And 90% might raise an eyebrow, but no rift. [00:52:28] Speaker 05: raises a pretty big eyebrow, too. [00:52:30] Speaker 02: Well, that's why we're not saying no. [00:52:33] Speaker 02: I think that there has to be agency reason decision making whenever they take something that is of a dramatic level that will change the services provided. [00:52:41] Speaker 02: So I think it's sort of inherent in the hypothetical, which I take to mean, you know, a wide scale riff, right? [00:52:48] Speaker 02: Maybe a riff of 20 people would not rise to that. [00:52:51] Speaker 02: level of disruption of programming. [00:52:53] Speaker 02: But if you're going to fire half the agency, that's probably going to result in programming of fewer than 49 language services. [00:52:59] Speaker 02: So I think that you would have to take the initial step of thinking through that decision before effectuating a riff. [00:53:06] Speaker 02: But I do think that the scope of the remedy also counsels in favor of Judge Lambert's injunction, which was, I think, the least intrusive in terms of he didn't try to decide how many employees the agency would need to fulfill a statutory mandate, which is the third problem that [00:53:20] Speaker 05: It's an awful catch 22. [00:53:22] Speaker 05: We tried it. [00:53:25] Speaker 05: We tried it in NTU on the state and work out too well, be totally arbitrary for a judge to pick a number. [00:53:32] Speaker 02: Absolutely. [00:53:32] Speaker 05: And in particular, if the judge doesn't pick a number, you just you know, then we have compliance disputes. [00:53:38] Speaker 02: Right. [00:53:38] Speaker 02: And particularly in the face of the agency's admission that this was a blanket placement on administrative leave, there would have been no basis to do that. [00:53:44] Speaker 02: But I think in the context of a preliminary injunction, this isn't purporting to tie the hands of the government even on this limited basis for longer than it takes to resolve the litigation. [00:53:53] Speaker 02: So I think it's an appropriate means of restoring the status quo. [00:53:57] Speaker 02: Thank you very much. [00:53:58] Speaker 04: Just to follow up on that. [00:54:02] Speaker 04: If the government, instead of appealing the preliminary injunction, had reinstated everyone to full-time work, and then the next day issued an order saying that we believe that we can fulfill all of our statutory duties with 90 percent of the workforce, [00:54:32] Speaker 04: And so for that reason, after our consideration, we are placing 10% one leave. [00:54:44] Speaker 04: That wouldn't have been prohibited by disinjunction, would it? [00:54:48] Speaker 02: I don't think so. [00:54:48] Speaker 02: And I think if there were concerns about the process through which the agency came to the decision that it could do its duties with 90%, that would be a separate challenge. [00:55:00] Speaker 04: If it's not precluded by channeling, that's just an argument that that particular decision was arbitrary and capricious because it wasn't well-reasoned. [00:55:20] Speaker 04: But that's separate and apart from whether this injunction would have prohibited that. [00:55:25] Speaker 02: Absolutely. [00:55:26] Speaker 02: And if our argument is not that the agency can never change course, can never make the decision to shrink the agency, our argument is it has to do so in a reasoned way that complies with the law. [00:55:36] Speaker 02: And I don't think this injunction prohibits that. [00:55:37] Speaker 02: It merely tries to walk back what the district court found was likely violative in many ways, an agency action that it had taken. [00:55:44] Speaker 00: All right. [00:55:47] Speaker 00: Thank you. [00:55:48] Speaker 00: Thank you very much. [00:55:49] Speaker 00: Mr. Schultz? [00:56:01] Speaker 03: Thank you, Bill Schultz, for the Abramowitz class and appellees. [00:56:10] Speaker 03: I want to say a word about jurisdiction, one issue that's particular to Mr. Abramowitz, and then I want to spend the bulk of the time on final agency action. [00:56:23] Speaker 03: Our position is that Mr. Abramowitz's claim under Thunder Basin is not of the type that Congress intended to go to the Merit System Protection Board. [00:56:37] Speaker 03: Abramowitz brought this case, as the court knows, to enjoin the closure of Voice of America [00:56:45] Speaker 03: because the defendant's actions had prevented him from carrying out duties entrusted to him by Congress. [00:56:55] Speaker 03: So the case is not about his status as employee, but about the agency being shut down so he could no longer direct it. [00:57:05] Speaker 03: If everyone else had been put on administrative leave and he had not been, he'd have the same case. [00:57:11] Speaker 03: Because it's about the agency being shut down [00:57:14] Speaker 03: and not about him. [00:57:16] Speaker 03: And so when you take it in that context, under the three thunder basin factors that are to be considered, we think it demonstrates that the case is not channeled under the CSRA. [00:57:34] Speaker 04: Now, I'd like to address- Can I just ask a factual question there? [00:57:38] Speaker 04: Yes. [00:57:40] Speaker 04: I thought I remember reading somewhere that there were, I think, 39 broadcast engineers total to had announced retirement and the other 37 had been placed on leave. [00:57:57] Speaker 04: So just kind of like as a physical matter, [00:58:02] Speaker 04: there wouldn't have been anybody to perform the function of broadcasting. [00:58:09] Speaker 04: And do I have that correct? [00:58:11] Speaker 03: I don't know if those numbers are correct, but I can tell you that the district court found, and I think the defendants have admitted, there was no broadcasting beginning on March 15th, none at all. [00:58:26] Speaker 03: And that was true on April 22nd when the district court entered its preliminary injunction. [00:58:33] Speaker 03: On the final agency action, the sequence of three events is critical. [00:58:42] Speaker 03: On March 15th, nearly all USAGM employees, including 1,300 from Voice of America, were placed on administrative leave until further notice. [00:58:56] Speaker 03: They were paid but not allowed to come into work and not permitted to work. [00:59:02] Speaker 03: That's March 15th. [00:59:04] Speaker 03: The next day, on March 16th, the defendants notified approximately 500 personal service contractors that they would be terminated two weeks later. [00:59:14] Speaker 03: And one day after that, on March 17th, the director of stations and operations instructed all USAGM foreign service employees to shut down all transmitters and within two days to place nearly all local employees in administrative leave. [00:59:32] Speaker 03: Each of these actions was discreet, and each of them is separately reviewable. [00:59:39] Speaker 03: And they were identified as that way by the district court on page 24 and 25 of his opinion. [00:59:48] Speaker 03: He talks about actions that are reviewable, and he lists each of these. [00:59:55] Speaker 04: With respect to the action to cease transmitting. [01:00:01] Speaker 04: Let's suppose that it's a discrete action, but how do we know that that's final? [01:00:09] Speaker 04: I mean, we don't review every tentative action that an agency takes. [01:00:18] Speaker 04: Right. [01:00:21] Speaker 03: Well, it's final until it's not. [01:00:28] Speaker 03: And I think it is a discrete action that's reviewable. [01:00:34] Speaker 03: Of course, an agency can always change, but that doesn't make the action less final. [01:00:39] Speaker 03: When you close down all the transmitters and send everybody on administrative leave in a single day, the district court, we think, correctly found that that's a final action. [01:00:52] Speaker 03: But it may not be critical to the injunction, because the injunction really went to [01:00:58] Speaker 03: the preliminary injunction. [01:00:59] Speaker 03: And as you pointed out, Judge Wilkins, that's critical. [01:01:04] Speaker 03: This is a preliminary injunction to hold things in place to preserve the status quo until the court can decide the merits of the case. [01:01:13] Speaker 03: So it's not about the merits or anything else. [01:01:16] Speaker 03: It's what was deemed necessary to hold things in place. [01:01:21] Speaker 03: But I think in addition to that, the March 15th decision [01:01:27] Speaker 03: or action to close Voice of America is also reviewable. [01:01:32] Speaker 03: As the district court found, as a result of defendants' actions, VOA is not reporting the news for the first time in its 80-year existence. [01:01:43] Speaker 03: This is on March 15th. [01:01:44] Speaker 03: Its website has not been updated since March 15th, and radio stations abroad that rely on VOA programming have either gone dark or air-only music. [01:01:56] Speaker 03: The court found on page 22, it's not credible to argue the agency is still standing, as at the time of its preliminary injunction, more than a month later. [01:02:07] Speaker 03: These facts have never been disputed by the defendants. [01:02:10] Speaker 03: The defendants have also never disputed that their actions were arbitrary and capricious or in violation of law. [01:02:18] Speaker 03: And I want to contrast this to NTU. [01:02:20] Speaker 03: There, as Judge Katz has pointed out, the record showed that the agency was functioning on some level at the time of the preliminary injunction. [01:02:29] Speaker 03: Here, it was closed. [01:02:32] Speaker 03: There was no broadcasting. [01:02:35] Speaker 03: And as my colleague pointed out, on March 15, Kerry Lake, one of the defendants announced on a website, and it's in the record, that most employees would be on administrative leave and that the agency was not salvageable. [01:02:55] Speaker 03: Defendants have argued that there's no written document here and that it can't be an action without a written document. [01:03:04] Speaker 03: And I'd like to make two points in response to that. [01:03:08] Speaker 03: First of all, as the district court found that this decision was reviewable under paragraph one of section 706 of the Administrative Procedure Act as an agency action unlawfully withheld, [01:03:24] Speaker 03: And if that's correct, no written document would be required. [01:03:27] Speaker 03: What the district court said was defendants have unlawfully withheld international broadcast programming while the VOA remained indefinitely silent. [01:03:40] Speaker 03: But also the action is reviewable, we think, under paragraph two, even if there's not an actual written decision, although I would point to the press release on March 15th as written. [01:03:57] Speaker 03: And there are three cases in this circuit that hold that. [01:04:01] Speaker 03: The first is Hispanic Affairs Project. [01:04:05] Speaker 03: It's cited in our brief. [01:04:07] Speaker 03: And there, the Homeland Security [01:04:10] Speaker 03: administration had an unwritten practice of extending the visas of herders for up to three years, even though its regulation said the maximum was 364 days. [01:04:25] Speaker 03: The policy was not written down. [01:04:27] Speaker 03: But the court said it was identified as a policy. [01:04:32] Speaker 03: It was happening. [01:04:33] Speaker 03: And it was an agency action that could be reviewed. [01:04:38] Speaker 03: And it pointed out that Lujan had acknowledged that applying a particular measure like this across the board is reviewable. [01:04:47] Speaker 03: under the APA. [01:04:48] Speaker 03: The other two cases are discussed in NTEU, but the Venetian Casino Resort case there, the EEOC had an unwritten policy [01:04:58] Speaker 03: of disclosing confidential... Yeah, I remember those. [01:05:01] Speaker 05: We did not have Hispanic Affairs... You did not. [01:05:05] Speaker 05: ...to us, so I'll take a look at that. [01:05:07] Speaker 05: Yeah, and it's in our brief. [01:05:09] Speaker 05: This part of NTEU said, put aside the action unlawfully withheld for a minute, in order to be reviewable as agency action under 7062, [01:05:25] Speaker 05: has to be a rule, rule requires a statement, doesn't necessarily have to be written, but there's some indicia of concreteness and formality and the like. [01:05:37] Speaker 05: Do you disagree with any of that? [01:05:41] Speaker 03: As long as it, I don't think it has to be written. [01:05:44] Speaker 03: But I certainly agree that it has to be a concrete action. [01:05:49] Speaker 03: But I think we have that here. [01:05:51] Speaker 03: The three actions that I started with, I think are very concrete. [01:05:55] Speaker 03: The decision to send almost all the employees home on administrative leave. [01:06:01] Speaker 03: It's a concrete action. [01:06:02] Speaker 03: And as I said, there's actually something in writing about that in the press release. [01:06:06] Speaker 03: Sorry, give me the other two. [01:06:08] Speaker 03: Just refresh the decision to fire. [01:06:10] Speaker 03: All the personal service notices. [01:06:15] Speaker 03: Not as a risk. [01:06:17] Speaker 03: On March 16th, they announced that they were going to fire all personal service contractors. [01:06:24] Speaker 03: Of the PSCs. [01:06:25] Speaker 03: Yeah, PSCs. [01:06:26] Speaker 03: Separate from the risk. [01:06:27] Speaker 03: That's the second. [01:06:28] Speaker 03: I got that. [01:06:29] Speaker 03: And the third one was the decision to close all the transmission stations. [01:06:33] Speaker 03: So we would argue those are very discreet and are reviewable. [01:06:40] Speaker 03: And as I said, Venetian Blinds, and I won't go through it, but the Brotherhood locomotive case is also mentioned in NTU. [01:06:48] Speaker 03: And there wasn't a written decision there either. [01:06:54] Speaker 04: Just to clarify, how is it an announcement that you intend to fire some people of final agency act? [01:07:04] Speaker 03: Well, it basically said, we're going to send you a notice that you're fired and effective in two weeks. [01:07:11] Speaker 03: So it's not that they intended to do it. [01:07:12] Speaker 03: It's like, you're fired. [01:07:14] Speaker 03: We have to give you two weeks notice. [01:07:15] Speaker 03: But you're out in two weeks. [01:07:18] Speaker 03: So I think it was a decision to actually fire them. [01:07:21] Speaker 03: And I think those are the notices they got. [01:07:25] Speaker 03: The government relies very heavily on Lujan and Norton, and I want to just address each of those briefly. [01:07:34] Speaker 03: As I know the court knows, Lujan is a challenge to the Bureau of Land Management's land withdrawal program. [01:07:43] Speaker 03: And so it was a program where periodically the Bureau of Land Management would withdraw a piece of property from public lands and make it available for private sale. [01:07:57] Speaker 03: And the plaintiffs there said, essentially, we don't like how you're running this program. [01:08:02] Speaker 03: We think there's some things in it illegal. [01:08:03] Speaker 03: And the court said, well, you can challenge a particular action, but you can't challenge the whole program. [01:08:11] Speaker 03: submit that what we have here is very different for the reasons that I've explained, that we have specific actions being challenged. [01:08:20] Speaker 03: In Norton, the court also said there's no agency action to review, but what happened there is [01:08:28] Speaker 03: The plaintiffs didn't like the way the Bureau of Land Management was running the wilderness areas. [01:08:34] Speaker 03: And it said, we think you should ban all-terrain vehicles. [01:08:38] Speaker 03: And the court said, well, you're not complaining about inaction. [01:08:40] Speaker 03: You're complaining actually about inaction. [01:08:43] Speaker 03: And you can't do that under the Administrative Procedure Act, particularly if there's no legal basis for it. [01:08:54] Speaker 03: Here, again, the agency took the discreet actions that I've already outlined. [01:09:01] Speaker 03: Now, the government argues. [01:09:02] Speaker 05: Suppose you were right. [01:09:05] Speaker 05: Mr. Schultz, that there is a discreet agency action at issue to shutter the agency. [01:09:16] Speaker 05: And it's distinct from anything employment related, which will get jammed. [01:09:21] Speaker 05: Right. [01:09:22] Speaker 05: That gets you paragraph three of the preliminary injunction. [01:09:30] Speaker 05: Why does it get you paragraph one, which is entirely about employment decisions? [01:09:37] Speaker 03: I think the reason is the basic argument here, which is that what the agency was doing was arbitrary and capricious. [01:09:48] Speaker 03: And it was also done without any reasoned explanation as required in State Farm. [01:09:56] Speaker 03: and all the cases. [01:09:58] Speaker 03: That's your merits argument. [01:09:59] Speaker 03: That's our merits argument. [01:10:01] Speaker 03: But the preliminary injunction is to preserve things for the merits. [01:10:05] Speaker 03: So that's the merits argument. [01:10:07] Speaker 03: And that includes [01:10:11] Speaker 03: possibly figuring out what's legally required. [01:10:14] Speaker 03: But it also could include if you decide to basically close down the agency and send everybody on home despite appropriations and so on, it may be much broader than that. [01:10:29] Speaker 03: So there are legal issues that had to be litigated [01:10:32] Speaker 03: in front of the court. [01:10:34] Speaker 03: And it was, in our view, appropriate to preserve the status quo by saying, these people, you're going to continue to operate while we decide whether your legal issues are viable and exactly how far we're going to go. [01:10:52] Speaker 03: The government, one other point is the government argues that the district report is micromanaging the agency. [01:11:01] Speaker 03: And I just want to say there's nothing in the record to support that. [01:11:06] Speaker 03: The preliminary injunction didn't tell the agency how to use its employees or anything else. [01:11:14] Speaker 03: It simply set things back to the way they were before March 15. [01:11:22] Speaker 03: As Judge Wilkins points out, in reviewing the preliminary injunction, we look at the facts as of the time of the preliminary injunction, and it's about the status quo and not relief in this case. [01:11:37] Speaker 03: I have a nice conclusion, but I think you'll know what it is. [01:11:41] Speaker 03: If there are no further questions, I thank the court for its time. [01:11:45] Speaker 06: All right. [01:11:48] Speaker 06: Give her five minutes. [01:11:51] Speaker 06: Thank you. [01:12:13] Speaker 01: So I heard my friends on the other side talk a lot about loss of programming and loss of broadcasting, and that being the crux and the thrust of their harbs. [01:12:26] Speaker 01: And I think that that is illustrative of the mismatch between the prong of the injunction that we're challenging here and the three-prong injunction that the court actually entered. [01:12:37] Speaker 01: So I heard my friend on the other side talk about the harm to Reporters Without Borders and the News Guild being the loss of programming. [01:12:43] Speaker 01: And I heard my friend on behalf of Mr. Abramowitz say that his status as an employee, or this case is not about his status as an employee, but about the agency being shut down. [01:12:54] Speaker 01: All of that relates to their claim about alleged dismantling the agency. [01:12:59] Speaker 01: And complaints about programming may get you an injunction closer to prong three, but it doesn't extend and get you to an injunction that was entered in prong one. [01:13:11] Speaker 01: So if a plaintiff comes in withstanding and says a particular agency action about programming or loss of certain services is harming them, then we don't dispute that they could have a cognizable claim under the APA. [01:13:25] Speaker 01: Our primary contention on appeal is that the district court went that extra step further and ordered the agency how to conduct its operations by ordering the restoration of particular employees and contractors. [01:13:43] Speaker 04: How does that argument work when you need engineers and other people like that to physically perform broadcasting, which is a statutory mandate, and you place all of those people who perform that on leave? [01:14:08] Speaker 01: It's not our contention that an injunction that would require an agency to, for example, resume particular broadcast services would mean that the agency would be permitted to have no employees to do that. [01:14:21] Speaker 01: Inherently in the nature of in order to broadcast certain services or an injunction requiring the broadcast of certain services, the agency presumably would have to have certain employees [01:14:34] Speaker 01: work in order to fulfill that portion of the injunction. [01:14:37] Speaker 01: But that's the main point here. [01:14:38] Speaker 01: That is up to the agency's discretion to perform those services and to perform compliance with the injunction. [01:14:46] Speaker 04: So if the district court had said restore to their status all engineers, [01:15:01] Speaker 04: Would that have been a permissible prong of the injunction? [01:15:08] Speaker 01: we would say that it would not be a permissible prong because again, it goes back to the employment decisions which are in the inherent discretion of the agency. [01:15:16] Speaker 01: If the injunction or if the court entered an injunction that required the resumption of certain broadcast services that would necessarily require the agency to have certain technicians or transmitting stations to resume those services, then that would be up to the agency to [01:15:35] Speaker 01: to employ those services to be able to comply with that portion of the injunction. [01:15:39] Speaker 04: And if a court entered an order saying resumption of... If it's undisputed that you can't broadcast without engineers, how is it within some sort of specialized expertise or discretion of the agency to say rehire the engineers? [01:15:59] Speaker 01: So we would say that it's a matter of [01:16:03] Speaker 01: district court, the district court's ability to order certain relief under the APA. [01:16:08] Speaker 01: Our position is that under the APA because of the CSRA, which provides reinstatement as a remedy, it precludes the court from being able to order reinstatement as a remedy under the APA. [01:16:18] Speaker 01: So the court could enter an order saying perform a specific service at that specific service is statutorily required. [01:16:25] Speaker 01: And if the agency needs an engineer to be able to resume that service, then that's up to the agency to bring back that engineer. [01:16:34] Speaker 04: I'm trying to understand your argument. [01:16:38] Speaker 04: So let's suppose. [01:16:41] Speaker 04: What happened here is that the agency head said, based on the March 15th executive order, I am shutting down the agency and everyone is placed on leave. [01:17:00] Speaker 04: Every single employee is placed on leave. [01:17:04] Speaker 04: Effective immediately. [01:17:08] Speaker 04: Are you saying that the district court does not order the agency to essentially set aside that action and reinstate everyone? [01:17:28] Speaker 04: It could only do the equivalent of a prong three and say, [01:17:33] Speaker 04: You are ordered to comply with your statutory mandate. [01:17:37] Speaker 04: Is that is that your argument? [01:17:39] Speaker 04: You could only do problem 3. [01:17:42] Speaker 01: Our argument is very similar to that with a few caveats that I want to provide. [01:17:46] Speaker 01: So, 1st, our submission here is that this case is not like in your district in your. [01:17:54] Speaker 04: Just answer the hypothetical. [01:17:55] Speaker 01: So if the agency issued an order that this court construed as a final agency action that said the agency is shutting down effective immediately and we're laying off all employees, and the agency construed that as a final agency action and said that was arbitrary and capricious, then the agency or the court could enter some kind of order saying setting aside that action. [01:18:18] Speaker 01: But I think that's the key point. [01:18:20] Speaker 01: The court could set aside that action. [01:18:21] Speaker 04: Setting aside the action of placing all of them on leave. [01:18:26] Speaker 04: so that the court could do that? [01:18:29] Speaker 01: So the court could set aside the agency's decision to shut down. [01:18:35] Speaker 01: And depending on what's in that order, that would have implications for the practical working out. [01:18:39] Speaker 01: But to the extent that ordering specific reinstatement of certain employees, our position is that the APA would preclude that, because that is an inherently employment-related remedy. [01:18:49] Speaker 01: And the CSRA provides the exclusive scheme and provides reinstatement as a remedy there. [01:18:54] Speaker 01: So as a practical matter, a district court's order setting aside an agency action to shut the agency down would, as a practical matter, result in the agency bringing back employees. [01:19:05] Speaker 01: But our position is that the APA itself does not, because of the CSRA and its preclusive and exclusive scheme that has reinstatement as a remedy, under the APA, the court cannot order a specific reinstatement of certain employees. [01:19:21] Speaker 04: I interrupted you. [01:19:22] Speaker 04: I think you were going to make another point. [01:19:28] Speaker 01: I don't have anything further at this time, Your Honor. [01:19:33] Speaker 01: All right. [01:19:34] Speaker 01: Thank you. [01:19:34] Speaker 01: Thank you.