[00:00:00] Speaker 00: Face number 23-5103 et al. [00:00:03] Speaker 00: State of New York et al. [00:00:05] Speaker 00: versus Donald J. Trump in his official capacity as the President of the United States et al. [00:00:10] Speaker 00: Appellants. [00:00:11] Speaker 00: Ms. [00:00:11] Speaker 00: Neumeister for the Appellants. [00:00:12] Speaker 00: Mr. Acosta for the Appellees. [00:00:15] Speaker 05: Good morning, counsel. [00:00:16] Speaker 05: Ms. [00:00:16] Speaker 05: Neumeister, please proceed when you're ready. [00:00:19] Speaker 01: Good morning, Your Honor. [00:00:21] Speaker 01: May it please the court, McKay Neumeister, on behalf of the federal government. [00:00:24] Speaker 01: I'd like to save two minutes for rebuttal. [00:00:27] Speaker 01: In providing for the postal service to operate more like a business, Congress expressly exempted its actions from review under the Administrative Procedure Act. [00:00:36] Speaker 01: As a result, district courts can only review postal service decisions for consistency with statutory requirements under the narrow strictures of ultra-virus review. [00:00:46] Speaker 01: Now, for some statutory requirements, Congress created a specialized review scheme whereby parties file complaints in the Postal Regulatory Commission with direct review in this court. [00:00:55] Speaker 01: And where meaningful review of a statutory claim can be obtained through that scheme, its review is exclusive and ultra-various claims cannot be brought in district court. [00:01:04] Speaker 01: The advisory opinion claim at issue here falls squarely within that specialized review scheme. [00:01:09] Speaker 01: By the time the district court resolved the claim in October 2022, meaningful review was available before the PRC in this court. [00:01:17] Speaker 01: Accordingly, a threshold requirement of ultravarious review was not satisfied and exclusive authority to hear the claim lay with the PRC. [00:01:25] Speaker 05: Can I ask you, there's two strands of doctrine that your submission draws upon. [00:01:32] Speaker 05: One is the conclusion of review because there's a mechanism set forth in the statute and that ought to be exclusive. [00:01:40] Speaker 05: So that's kind of the Thunder Basin Axon idea. [00:01:45] Speaker 05: And then there's the narrowness of ultra-virus review. [00:01:47] Speaker 05: And ultra-virus review is predicated on not being able to get review in some other way. [00:01:53] Speaker 05: What's the relationship between those two in the context of this case is because they're both there. [00:01:58] Speaker 05: One of them, I think the Thunderbase and Axon one is jurisdictional, I believe. [00:02:04] Speaker 05: You tell me what the government's view is on that. [00:02:07] Speaker 05: But then on the ultra-virus one, I'm not sure it goes to jurisdiction as much as it goes to whether you can have a successful ultra-virus claim, one that prevails at the end of the day. [00:02:17] Speaker 05: Given, tell me if that understanding is wrong, but if that understanding is right, then what does that leave us in terms of that relationship between those two strands in this particular case and which path [00:02:28] Speaker 05: is the right one to go down or is there a sequencing or how exactly do they interrelate? [00:02:33] Speaker 01: We think those are two completely separate independent bases for reversing the district court judgment. [00:02:38] Speaker 01: And this court is able to address either of them without any particular required sequencing. [00:02:44] Speaker 01: And that's because whether there is an [00:02:47] Speaker 01: alternate scheme for review of a statutory claim in order to have equitable authority to hear an ultra various claim is the kind of non merits threshold question that the court can determine without actually exercising the power to review the merits of a claim and declare the law. [00:03:04] Speaker 01: It's very similar to what the Supreme Court held in the Sinecom case about forum non-convenience. [00:03:10] Speaker 01: There, forum non-convenience, is there another more proper forum that was a threshold non-merits, non-jurisdictional determination that could come before a jurisdictional question? [00:03:19] Speaker 01: Similarly here, the court would be saying that there is an alternate forum that is the proper forum for this claim. [00:03:24] Speaker 01: And the court can say that without touching on the merits. [00:03:27] Speaker 05: So then for ultra-virus, if I'm remembering right, there's three prongs to it. [00:03:32] Speaker 05: One of them is this one. [00:03:33] Speaker 01: Yes, Your Honor. [00:03:34] Speaker 05: But then there's another one, which is, is it so clear that it's outside the statutory scope of authority that ultra-various relief is warranted? [00:03:44] Speaker 05: That's one of them, too. [00:03:45] Speaker 05: I think that might be the third one. [00:03:47] Speaker 05: Would it be, then, that some of them are threshold so that you can get to them first and some of them are not? [00:03:53] Speaker 05: Because that one doesn't seem so threshold, the last one, because that just goes to the merits of how clearly is it outside the statutory authority. [00:04:02] Speaker 01: That might be one way the court wants to slice it, Your Honor. [00:04:05] Speaker 01: I will note that ultravarious review is essentially the court's equitable authority and the basis for the court exercising equitable authority over these extreme claims and these extreme circumstances. [00:04:16] Speaker 01: And so there's sort of a quasi-jurisdictional flavor of the court's power to act [00:04:21] Speaker 01: that is relevant in all of these considerations. [00:04:23] Speaker 01: But we don't think the court has to specifically say whether the blatant violation, a clear statutory requirement prong of ultra-various review itself is a threshold question, because I think it's clear that the meaningful review prong that we're talking about is the kind of threshold determination that the court can address without reaching the merits. [00:04:44] Speaker 05: And if we do that, if we look at the meaningful review prong under ultra-virus, would we basically write the same stuff that we would write if we looked at it via Thunder Basin Axon? [00:04:57] Speaker 05: Is there any difference between them? [00:04:59] Speaker 05: Or is it basically the exact same reasons that you would say it's precluded by Thunder Basin is also the reasons why the second prong of ultra-virus review is unmet? [00:05:09] Speaker 01: For purposes of this case, we think the analysis of those two questions is the same. [00:05:14] Speaker 01: It's possible that they might differ in certain respects in other circumstances. [00:05:18] Speaker 01: But here, the question is whether there was meaningful review to exercise authority over these claims in October 2022. [00:05:24] Speaker 01: And either under Thunder Basin or under Altravirus, the answer is that there was meaningful review. [00:05:31] Speaker 01: Congress established this specialized scheme to hear these claims. [00:05:35] Speaker 01: And the PRC could have afforded full meaningful review and relief on those claims at the time. [00:05:40] Speaker 04: Can I? [00:05:41] Speaker 04: Oh, I had a follow-up question. [00:05:45] Speaker 04: We may have the same follow-up question. [00:05:47] Speaker 04: You said the question is whether meaningful review could be afforded in October 2022. [00:05:52] Speaker 04: Why isn't the question whether meaningful review could be afforded at the time they filed their lawsuit? [00:06:01] Speaker 04: I mean, some jurisdictional things we look at at the moment that the case is filed like standing. [00:06:08] Speaker 04: We don't look to see whether the plaintiff lost standing later. [00:06:12] Speaker 04: We might look at mootness or something later. [00:06:16] Speaker 04: But you seem to be saying that meaningful review, even if there wasn't meaningful review when the preliminary injunction was entered and the case was filed, there's an opportunity for it by the time the court granted summary judgment. [00:06:32] Speaker 04: What's your best authority that that's the way we should look at that? [00:06:36] Speaker 01: Yes, Your Honor. [00:06:38] Speaker 01: That the question is, you know, Thunder Basin, which is a jurisdictional altruism, which is a question of equity. [00:06:44] Speaker 01: Our argument is that regardless of whether what the court did was proper in 2020, it could not exercise this authority in 2022. [00:06:52] Speaker 01: And that's because the district court exercise authority in exigent circumstances. [00:06:57] Speaker 01: at the height of a pandemic where states had to administer these impending general elections in light of various public health restrictions. [00:07:05] Speaker 01: And that accident circumstance is what led the court to conclude that there was no meaningful review at the time. [00:07:10] Speaker 01: Now, assuming that a factual predicate like that is a proper exception to PRC review, we're not taking a position on that, but assuming that that could be an exception, [00:07:22] Speaker 01: to PRC review. [00:07:23] Speaker 01: That factual predicate had disappeared by October of 2022. [00:07:28] Speaker 01: And so similar to other kinds of inquiries, mootness, ripeness, abstention, doctrines, there are a number of different circumstances where the court looks at [00:07:37] Speaker 01: changing facts over the course of the case to determine whether the court lost authority to act. [00:07:42] Speaker 01: And specifically focusing on ultra-various review, this is a question of the court's equitable authority to hear these claims in grant relief. [00:07:50] Speaker 01: This court has explained in the Federal Express case that the narrow purpose of these claims is to enjoin specific agency action that is an extreme error that requires the immediate intervention of an equity court. [00:08:04] Speaker 01: Now that question, whether this is the kind of circumstance that rises to that level, that satisfies these very strict requirements and requires this immediate intervention, hinges on the facts on the ground and whether equity is proper. [00:08:18] Speaker 04: Can you cite me to any authority that says, well, if you meet the Thunder Basin kind of factors at the time you filed a complaint, if two years later while your case is still pending, [00:08:34] Speaker 04: We reanalyze the Thunder Basin factors, and if we find that you don't meet all of them at that point, then your case is dismissed for lack of jurisdiction. [00:08:46] Speaker 01: I'm not specifically aware of a case that says that, Your Honor, but the court ultimately doesn't need to reach that. [00:08:50] Speaker 01: If the court isn't willing to assume that that scenario is proper, then it can not decide the thunder based in question and resolve this case on ultra-various grounds. [00:08:59] Speaker 01: As I mentioned, it's a threshold question. [00:09:01] Speaker 01: Additionally, Your Honor, this court has said that questions of statutory jurisdiction, the steel public bar does not apply to them and that the court can assume statutory jurisdiction for purposes of deciding. [00:09:12] Speaker 03: So this is a question I have. [00:09:14] Speaker 03: So here, the plaintiffs are proceeding under an equitable cause of action, ultravarious review. [00:09:20] Speaker 03: The government is only challenging one part of that cause of action, which is whether there's a meaningful alternative. [00:09:30] Speaker 03: But I don't see anywhere in the government's brief that it's challenging another important aspect of ultravarious review, which is that the government [00:09:39] Speaker 03: it took an action entirely in excess of its delegated power or contrary to a specific statutory provision. [00:09:45] Speaker 03: So has the government waived that argument? [00:09:50] Speaker 03: Is that a waivable argument in the context of an equitable cause of action? [00:09:55] Speaker 03: I think this is actually quite a hard question, because if the government, assuming for a moment that I disagree about the meaningful alternative, [00:10:07] Speaker 03: Could we rule on this other part of ultravarious review where the government hasn't even raised this argument? [00:10:15] Speaker 01: We haven't, Your Honor, because we are focused on a different prompt for purposes of the appeal. [00:10:19] Speaker 01: We did contest that prong in district court and simply chose not to proceed with that argument before this court. [00:10:28] Speaker 01: I'm not sure if we have a position with respect to whether that's the kind of jurisdictional question that the court could reach out and resolve on its own. [00:10:38] Speaker 03: It's not something- It's not jurisdictional. [00:10:40] Speaker 03: It goes to whether there is an equitable cause of action. [00:10:44] Speaker 01: Yes, Your Honor. [00:10:46] Speaker 01: And because this is equity- Which isn't jurisdictional. [00:10:51] Speaker 01: Right. [00:10:51] Speaker 01: But it is a question about whether the court fundamentally has the power to act here. [00:10:56] Speaker 01: And so if the court thought that that were the kind of question that even though the government has not pressed it, it could pursue sua sponte because it's a question of the court's fundamental authority. [00:11:08] Speaker 03: Do you think that we can pursue that sua sponte in a context like this for an equitable cause of action? [00:11:13] Speaker 01: I don't believe we've ever made that argument, Your Honor. [00:11:17] Speaker 01: I'm not prepared with a specific position on that. [00:11:19] Speaker 01: But I do want to also just emphasize that regardless of what the court thinks about the question of authority to act such that the judgment and the entirety is improper and should be reversed, there's also the separate question of the fact that this permanent injunction on its own. [00:11:38] Speaker 05: So before we get to the injunction, why isn't it the case that [00:11:44] Speaker 05: If it goes to whether there's a cause of action, one thing we know from steel company is that the existence of a cause of action is a merits question. [00:11:51] Speaker 05: So if the existence of a cause of action is a merits question, then why can't one side just concede it? [00:11:57] Speaker 05: Like all merits questions, it just seems like you made a strategic choice and it may be because you think actually you don't have a very good argument on whether there was a need to go before the Postal Review Commission. [00:12:07] Speaker 05: I don't know what the thinking is, but [00:12:10] Speaker 05: Why wouldn't it be that with a cause of action, a party can just submit to whether there's a cause of action and it's not something that a court looks behind once a party acquiesces it? [00:12:26] Speaker 01: That might be true, Your Honor, but I just want to highlight some of the differences between ultra-various review and the fact that it is equitable authority. [00:12:35] Speaker 03: That is my question, whether our equitable jurisdiction turns on all the elements of the cause of action being met, which is different from a statutory cause of action. [00:12:46] Speaker 01: Yes, Your Honor. [00:12:47] Speaker 01: And this court has sometimes described ultra-various review as the court's equitable jurisdiction. [00:12:53] Speaker 01: Non-statutory. [00:12:54] Speaker 05: It's called it non-statutory. [00:12:56] Speaker 01: It's called non-statutory. [00:12:57] Speaker 01: Correct. [00:12:58] Speaker 01: And so whether or not the fact that this is non-statutory and goes to the court's exercise of its powers and equity, cashes out differently, is not something that we've specifically considered. [00:13:08] Speaker 01: I'm happy to file a letter or supplemental briefing on that question if the court is interested in it. [00:13:14] Speaker 03: I couldn't find any cases talking about this. [00:13:18] Speaker 05: Well, I have a question that I don't want to... It's along the same lines, but pointing in the other direction, which is there's the question whether, as Judge Wilkins raised, this is something that you can take a fresh look at later on in the case, depending on how it proceeds. [00:13:35] Speaker 05: And for these purposes, let's just assume that I'm thinking about this in ultra-various terms rather than in... [00:13:41] Speaker 05: Thunder basin terms. [00:13:42] Speaker 05: So we're talking about as a Thunder as a as a ultra various question. [00:13:47] Speaker 05: I don't think the other side we can we can ask them, but I don't think the other side. [00:13:52] Speaker 05: Opposed in their briefing the way that you're looking at it, which is to say. [00:13:58] Speaker 05: We're looking at it afresh based on 2022. [00:14:01] Speaker 05: As of 2022, there wasn't an exigency. [00:14:03] Speaker 05: So in 2022, there was this alternate route to go before the PRC should do that. [00:14:07] Speaker 05: The other side obviously opposes whether that was a viable alternate route. [00:14:12] Speaker 05: And that I think is squarely in dispute. [00:14:14] Speaker 05: But I didn't read them to oppose whether this is an appropriate way of doing the analysis. [00:14:20] Speaker 01: I agree with that, Your Honor. [00:14:21] Speaker 01: I think their brief does not oppose that this is the correct question, is what the facts were in 2022 and whether there was meaningful review in 2022. [00:14:29] Speaker 01: And so the court can assume that for purposes of this case. [00:14:32] Speaker 05: Well, that's the question because I think we could assume that if we can assume those kinds of things when we're trying to figure out whether there's an equitable action. [00:14:41] Speaker 05: I just don't know that the answer is all that different from the exchange that we were just having before because [00:14:46] Speaker 05: That would be an inclination is to say, well, this just isn't disputed right now, at least for ultra-various purposes. [00:14:51] Speaker 05: For Thunder Basin purposes, it may be that if it goes to jurisdiction, then maybe we have to independently look at it anyway, regardless of whether it's disputed. [00:14:58] Speaker 05: I'm not sure about that. [00:14:59] Speaker 05: But for ultra-various purposes, one might say, well, for those purposes, that can be something that the other side doesn't contest. [00:15:09] Speaker 05: And therefore, we assume it for these purposes. [00:15:12] Speaker 01: I think for the purpose of resolving this case, [00:15:15] Speaker 01: Because it's not a question of constitutional jurisdiction, it's fine for the court to assume that and then reverse the judgment on the basis that there was, in fact, meaningful alternate review available in 2022. [00:15:26] Speaker 01: Because the question of Thunder Basin is not a question of Article III jurisdiction. [00:15:31] Speaker 01: It's statutory jurisdiction. [00:15:32] Speaker 01: And the court is fine to assume issues with respect to statutory jurisdiction. [00:15:36] Speaker 01: But I do just want to highlight. [00:15:37] Speaker 05: But that's different. [00:15:38] Speaker 05: I mean, you're talking about the Thunder Basin route. [00:15:40] Speaker 05: I was talking about the tourist route. [00:15:42] Speaker 01: Yes, and equitable authority, again, this is kind of murky with respect to the sense of which is jurisdictional. [00:15:49] Speaker 01: I'm not aware of an argument that it's jurisdictional as a constitutional matter. [00:15:53] Speaker 01: But again, we're happy to address that further. [00:15:55] Speaker 05: You're right that we have cases that say, we have a couple of cases, I think, that say that you can assume statutory jurisdiction. [00:16:03] Speaker 05: I think there's been opinions even in our court that have called into question whether those [00:16:09] Speaker 05: that line of cases, which I think consists of two, stands up. [00:16:14] Speaker 05: So I'm not sure that's the more propitious route as opposed to ultra-virus. [00:16:20] Speaker 01: Yes. [00:16:20] Speaker 01: And so the court is perfectly fine to just put that aside and decide ultra-virus because the specific question that we're presenting is a threshold question similar to forum nonconvenience. [00:16:31] Speaker 05: And you think on that one, it wasn't the [00:16:33] Speaker 05: methodology of saying we can look at it in terms of what was reasonably available in 2022, that methodological move hasn't been contested. [00:16:43] Speaker 05: And so we can assume that and then ask whether the ultra-various prong that is related to that is satisfied. [00:16:50] Speaker 01: Yes, Your Honor, we agree with that, that we don't read their brief to contest the fundamental framework of our argument. [00:16:57] Speaker 01: And in 2022, it was clear that by that point in time, there was meaningful review before the PRC. [00:17:03] Speaker 01: And we know this. [00:17:04] Speaker 04: How do we know that? [00:17:06] Speaker 04: Or what do we do with the district court made a finding that there wasn't meaningful review? [00:17:12] Speaker 04: The district court said, you know, at the time I entered the preliminary injunction, there wasn't meaningful review, and there's still not meaningful review today. [00:17:24] Speaker 04: At least that's the way I read the district court's summary judgment. [00:17:28] Speaker 01: So I read the district court's opinion slightly differently, Your Honor. [00:17:31] Speaker 01: I think the district court said the first half of that, that in 2022, there was no meaningful review. [00:17:36] Speaker 01: But I don't read the court to specifically say that on the ground, sorry, in 2020, there wasn't a meaningful review. [00:17:42] Speaker 01: I don't read the court to say that in 2022, based on the facts on the ground at that time, there was no meaningful review. [00:17:48] Speaker 01: And I'd urge the court to look at the opinion [00:17:50] Speaker 01: It's pages 380 to 81 and 391, where it's talking about this prong, both under Thunder Basin and Ultra Veris. [00:17:58] Speaker 01: Specifically under Ultra Veris, that's 391. [00:18:01] Speaker 01: And all the court says is that because of the nature of plaintiff's claims and because of the impending election at the time they filed suit, there was no meaningful review. [00:18:09] Speaker 01: The court wasn't making any findings about the facts on the ground in 2020, nor could it have done so, because the briefing was focused solely on what happened [00:18:18] Speaker 01: In 2020, the summary judgment briefing was completed by November 2, 2020. [00:18:23] Speaker 01: And so not only did the court, in our view, not make that holding, the record would not have supported it. [00:18:29] Speaker 01: And it would not be consistent with ultra-various review. [00:18:33] Speaker 01: Because ultra-various review is about enjoining a specific extreme agency action. [00:18:37] Speaker 01: And by October of 2022, those actions had been fully overcome by events. [00:18:43] Speaker 01: And we know that because of the nature of the district court's permanent injunction. [00:18:47] Speaker 01: It did not enjoin those actions. [00:18:49] Speaker 01: It issued a wholly prospective prophylactic injunction against future agency action, not the ultra-various actions that motivated its exercise of authority, but hypothetical future actions. [00:19:01] Speaker 01: The court would not have had the authority to enter that kind of relief under even the APA. [00:19:06] Speaker 01: That's a broad programmatic challenge, hypothetical prophylactic relief. [00:19:10] Speaker 01: The APA would not have permitted it. [00:19:12] Speaker 01: And it makes no sense to say that plaintiffs can get this much broader form of relief where Congress has precluded APA review and they can only proceed ultra-various. [00:19:20] Speaker 03: What do we make the fact, though, that the preliminary injunction was in place from 2020 to 2022? [00:19:25] Speaker 03: I mean, could the plaintiffs have gone to the commission during that time to get relief given that the preliminary injunction was in place? [00:19:36] Speaker 01: I think they definitely could have, Your Honor. [00:19:37] Speaker 01: There was nothing stopping them from doing that. [00:19:39] Speaker 01: If their complaint was that the Postal Service had engaged in an action that violated statutory obligations, they filed a lawsuit. [00:19:46] Speaker 03: That was enjoined during that time. [00:19:48] Speaker 03: So what relief, what additional relief could the commission have granted? [00:19:52] Speaker 01: Well, it wouldn't have affected the commission's jurisdiction to consider their complaint. [00:19:56] Speaker 01: The commission's relief provisions are in Section 3662C and D. The commission has the authority to bring the Postal Service into compliance and to order whatever relief it determines necessary to fix issues of past compliance, as well as order fines in circumstances of deliberate noncompliance. [00:20:15] Speaker 01: So there were things that the PRC could have done. [00:20:17] Speaker 03: So the PI doesn't affect the commission's authority at all? [00:20:22] Speaker 01: I don't believe that it does, Your Honor, and I think it's in fact what Congress intended in setting up this scheme, that the PRC have the opportunity to use its expertise and assess whether the sole body that it regulates, the Postal Service, is acting consistent with its statutory requirements. [00:20:39] Speaker 05: The PIs, by definition, turns on likelihood of success. [00:20:42] Speaker 01: Also that, Your Honor, yes. [00:20:44] Speaker 01: I think if the Postal Regulatory Commission had issued a decision on the complaint, that would have moved the district court case. [00:20:50] Speaker 01: Because at that point, it's the expert regulator that is determining on the merits whether or not an advisory opinion was required. [00:20:56] Speaker 01: And then an aggrieved party could have gotten review. [00:21:00] Speaker 03: Then their procedural claim would be moved. [00:21:02] Speaker 03: Correct, Your Honor. [00:21:02] Speaker 03: Because the commission would have, they would have asked for, you know, the advisory, whether there would have been a determination whether an advisory opinion was necessary. [00:21:10] Speaker 01: And if the PRC determined that an advisory opinion was necessary, it could have ordered the Postal Service to stop the changes that they had to go ask for an opinion about, to undo some of the changes that they had already made and to wait for an advisory opinion. [00:21:30] Speaker 03: a quasi-injunctive authority to stop actions that are out of compliance with the law. [00:21:35] Speaker 01: It does, Your Honor. [00:21:36] Speaker 01: And the statute then in 3664 says that district courts have the authority to enforce the orders of the PRC. [00:21:44] Speaker 01: If there is an order from the PRC against the postal service telling them to stop some action or unwind some action, if the postal service does not comply, then parties can go to district court and ask the court to then enforce that against the postal service, which is the only way that Congress intended for district courts to be involved in these questions. [00:21:59] Speaker 03: I mean, aside the fact that the Postal Service and the Postal Regulatory Commission are all part of the executive branch. [00:22:06] Speaker 05: So what about the opposite scenario? [00:22:08] Speaker 05: If in 2022 the challengers went to the Postal Regulatory Commission, as you think they should have, and they get the other resolution from the Postal Regulatory Commission, which is that actually there was no need to go to get an advisory opinion first. [00:22:28] Speaker 05: And then they want to seek judicial review of that. [00:22:31] Speaker 05: They could seek judicial review of that in our court. [00:22:34] Speaker 00: That's correct. [00:22:35] Speaker 05: And they would be seeking judicial review of that in our court in a context in which there's a preliminary injunction in place that enjoins the service from effectuating the very adjustments that then would be in play in the judicial review provision before our court. [00:22:58] Speaker 01: Yes, I believe that's right, Your Honor. [00:23:00] Speaker 05: And that seems fine. [00:23:02] Speaker 05: We would adjudicate the challenge to the Postal Regulatory Commission's resolution against the challengers, even though there's a preliminary injunction in place in favor of the challengers. [00:23:20] Speaker 01: I can't speak to what the government would do at that point with respect to the preliminary injunction. [00:23:23] Speaker 01: It's possible we would move to vacate. [00:23:26] Speaker 01: It's possible that if an appeal was available at that point, an appeal was taken, the cases could have been consolidated. [00:23:32] Speaker 01: But ultimately, at that point in time- They'd be in two different courts. [00:23:38] Speaker 01: It would, it was, it was, it would be in this courtyard. [00:23:41] Speaker 01: If there was an appeal from a PI. [00:23:42] Speaker 05: Oh, I see. [00:23:44] Speaker 05: I'm not talking about an appeal from the PI. [00:23:46] Speaker 05: I'm just talking about the fact that there's a preliminary injunction in place at the same time that then the challengers would come before our court to seek review of an adverse post-irregulatory commission determination. [00:23:57] Speaker 01: It's not uncommon for courts adjudicating similar issues to issue overlapping relief and for the parties to continue to pursue challenges to that relief on appeal in order to attempt to resolve the question. [00:24:11] Speaker 01: And if this court were to definitively determine that [00:24:16] Speaker 01: there was no issue, that there was no advisory opinion required, that would have a lot of weight that would supersede it because this is the court that ultimately is supposed to hear all of these appeals from the Postal Regulatory Commission. [00:24:29] Speaker 04: I looked through the regulations and implementing section 3662 and I did not see anything about expedition [00:24:45] Speaker 04: One of the arguments that's made is that there's this 90-day period by which the PRC has to act. [00:24:58] Speaker 04: that's not the floor, that's just the ceiling, they could act quicker. [00:25:03] Speaker 04: But I didn't see anything that said that these plaintiffs could go and before the PRC and Seacon expedited consideration so that they could get their final order [00:25:19] Speaker 04: and appeal that or petition that before the D.C. [00:25:26] Speaker 04: Circuit because the other aspect of this is that the statute says that they can only seek review of final orders. [00:25:35] Speaker 04: Right. [00:25:36] Speaker 04: So how does the absence, if I'm correct, the absence of any expedited regulation in the fact that they can only go to court when there's a final order or they can only go to district court to enforce an order, how should that play into our analysis of whether there's an adequate avenue for relief? [00:26:00] Speaker 01: So that's certainly a fact that the district court weighed heavily on, Your Honor. [00:26:04] Speaker 01: And for purposes of this appeal, we are not taking a position on whether or not that was appropriate at the time. [00:26:10] Speaker 01: But I do want to emphasize that if they are attempting to go to the commission and seek relief, if they've asked the commission to work expeditiously, I'm not aware of any specific regulation requiring the commission to, but if there are [00:26:24] Speaker 01: in an exigent circumstance and need relief faster than they can get it from the agency, then they can do what's common in administrative cases like that, where they could file a mandamus petition in this court at that point in time, explaining that they need the agency to act faster. [00:26:40] Speaker 01: And if they can meet the standards for mandamus, then they could get emergency relief under those exigent circumstances. [00:26:46] Speaker 01: But as of October of 2020, there were no exigent circumstances that would have made review [00:26:52] Speaker 01: not meaningful through the PRC um and again November after the election you mean uh sorry sorry 2022 as of October 2022 when the court exercised authority over these claims there was no exigency and there was proper review before [00:27:08] Speaker 01: the PRC. [00:27:09] Speaker 01: If exigencies subsequently arose, they could consider mandamus at that point in time. [00:27:13] Speaker 01: But there's nothing in the record supporting that there were reasons why the PRC could not have acted. [00:27:19] Speaker 01: And again, if you look at the permanent injunction, we know that the district court actually agreed with that because the district court didn't enjoin any of the actions that supported its review in the first place. [00:27:30] Speaker 01: It only issued this prophylactic injunction, which again, would not have been available under the APA, was in excess of its authority under ultra-virus review. [00:27:39] Speaker 01: The only thing it could have done was to issue an injunction against the specific ultra-virus actions that it identified. [00:27:45] Speaker 01: Moreover, it was enjoining actions that themselves might not have been ultra-virus and also might not even have violated the statute. [00:27:52] Speaker 01: Um in addition, equitable principles limit relief to relief necessary to redress the party's injuries. [00:27:59] Speaker 01: This injunction goes far beyond that. [00:28:01] Speaker 01: Plaintiffs never demonstrated that they had any future irreparable harm from future impending changes. [00:28:07] Speaker 01: Um in fact, they never sought this kind of injunction at all. [00:28:10] Speaker 01: This was with the disreport issue to respond to. [00:28:14] Speaker 05: Thank you council. [00:28:15] Speaker 05: We'll give you a little time for rebuttal. [00:28:26] Speaker 02: Mr. Acosta. [00:28:27] Speaker 02: Good morning, Your Honors. [00:28:28] Speaker 02: May it please support Kwame Acosta for the plaintiffs. [00:28:31] Speaker 02: I want to start with the meaningful review prong of the ultra-virus test. [00:28:36] Speaker 02: And as an initial matter, I'll just point out that the Postal Service does not dispute that when the preliminary injunction issued in 2020, Section 3 to 6 to the administrative process that provides for complaints could not provide adequate relief for plaintiffs' ultra-virus claim. [00:28:49] Speaker 02: And because of that 90 day time frame for adjudicating complaints, they've only argued that in the two years since the plenary injunction was issued, that the pandemic had ended in the 2020 general election had concluded. [00:29:00] Speaker 02: But as the district court correctly noted that the plaintiffs did not only claim injuries that were related to those events. [00:29:05] Speaker 02: For example, plaintiff Hawaii testified that it had adopted universal voting, mail voting in 2019, well before the pandemic. [00:29:14] Speaker 02: And that authority did not lapse. [00:29:16] Speaker 02: It was fully in effect in 2022 when the permanent injunction was issued. [00:29:20] Speaker 02: New York likewise had expanded its mail voting opportunities. [00:29:23] Speaker 02: And I would just point out the district court issued that injunction [00:29:27] Speaker 02: in October of 2022. [00:29:28] Speaker 02: And so at the time, plaintiffs faced a real threat to the integrity of their elections because the mail voting was already underway for November 2022. [00:29:36] Speaker 02: And the Postal Service hasn't disputed the injuries plaintiffs faced to necessary public services that also depend on the mail pandemic or no pandemic. [00:29:47] Speaker 02: For example, New York City testified that the mail's delayed threatened three million New Yorkers with prolonging the time without benefits. [00:29:54] Speaker 02: reducing the net amount of benefits received overall and causing applications to be received outside the statutorily set time period. [00:30:01] Speaker 02: And even short delays have major consequences. [00:30:04] Speaker 02: A 10-day window to request a hearing if a benefit is reduced or terminated. [00:30:09] Speaker 02: And if an applicant fails that 10-day window, they lose their benefits. [00:30:13] Speaker 02: And so there are several allegations like this related to the administration of state and local laws that depend on the mails in good times and bad, pandemic or no pandemic. [00:30:22] Speaker 05: So what about, so say it's December 2020. [00:30:25] Speaker 05: So I know we're focused on October 2022, because if I'm remembering right, that's when the summary judgment ruling was entered. [00:30:32] Speaker 05: It's kind of a random happenstance when the summary judgment ruling was entered, came about when it did. [00:30:36] Speaker 05: But that's the district court's discretion to enter it whenever it did. [00:30:40] Speaker 05: But for your purposes, in terms of seeking something from the postal regulatory commission, if we just go back to December 2020, then the election's over. [00:30:51] Speaker 05: And I want to get past the pandemic, so maybe I've got my dates wrong, but sometime in advance of October 22, was that not a time where you could have gone to the Post Regulatory Commission? [00:31:02] Speaker 05: And yes, there's the 90 days, but you have, there's not the same kind of exigency in play. [00:31:09] Speaker 02: And to clarify, you're saying that the permanent injunction was issued in December of 2020? [00:31:13] Speaker 05: No, I'm saying nothing's happened. [00:31:15] Speaker 05: Nothing's happened? [00:31:16] Speaker 05: The preliminary injunction is in place. [00:31:19] Speaker 05: The case is just pending. [00:31:20] Speaker 05: And then I think the government's submission is, well, during that period, [00:31:25] Speaker 05: At that point, the exigency had elapsed. [00:31:28] Speaker 05: And so you could have gone to the Post-Irregulatory Commission. [00:31:31] Speaker 02: Well, as was discussed in the prior presentation, Your Honors, any matter before the Post-Irregulatory Commission would have been moved because the challenge procedures had already been enjoined. [00:31:40] Speaker 05: And so it's not clear that the Post-Irregulatory Commission... I'm not aware that the Post-Irregulatory Commission, it's not an Article III body. [00:31:47] Speaker 05: So it doesn't have... Not in that sense, Your Honor, no. [00:31:50] Speaker 05: So is it actually true that the Post-Irregulatory Commission would say this matter is moved and therefore we're not going to... [00:31:54] Speaker 02: Well, the 3662 talks about bringing the postal service into compliance based on violations. [00:32:02] Speaker 02: But if they're currently in compliance with the postal statutes, there wouldn't necessarily be a basis to seek to bring the complaint. [00:32:11] Speaker 02: And I would just also point out that the- Why wouldn't the basis be? [00:32:14] Speaker 03: A court has said there's a likelihood of success. [00:32:17] Speaker 03: And so the commission is going to then work to bring the postal service into compliance. [00:32:24] Speaker 03: in part with some of the findings of the PI. [00:32:30] Speaker 02: My presentation here is not to say that a complaint could not have been brought necessarily. [00:32:35] Speaker 02: It could have been brought theoretically, but it wasn't necessarily required in order to have ultra-virus review, is the point that we're making here. [00:32:41] Speaker 03: Well, I mean, that's the question, though. [00:32:43] Speaker 03: If that was an adequate avenue, then you can't get ultra-virus review. [00:32:47] Speaker 02: The question is whether or not it was an adequate avenue at the time the summary judgment decision was made and at the time the permanent injunction was issued. [00:32:57] Speaker 02: And the question that the district court was faced at that time was that there was the knowledge that the preliminary injunction was falling away. [00:33:05] Speaker 02: And so plaintiffs were going to have no protection from last minute changes to nationwide service that undermined their operations. [00:33:11] Speaker 02: And so the only thing that could be done at that point would be to issue a new injunction to protect plaintiff's rights ongoing. [00:33:17] Speaker 03: Only because plaintiffs didn't go to the commission, though. [00:33:20] Speaker 03: Maybe if they had gone in those two years to the commission, they could have gotten relief. [00:33:25] Speaker 02: Your Honor, it's very well maybe that the commission could have reviewed the complaints during that period, but it's not required to, necessarily, to bring the ultra-various claim. [00:33:34] Speaker 03: Doesn't that concession undermine your ultra-various claim? [00:33:39] Speaker 02: it does in your honor because the ultra various claim talks about what first of all the relevant time period here is 2022 and we've we acknowledge that here and so that as I just laid out the the issue is is what the court was making a decision about at that moment and whether or not the part that what the what the risk were for the parties that moment and I was a [00:33:56] Speaker 02: that this is a case about the Postal Service, and this is not in dispute, circumventing a clear command of Congress, enacting changes to nationwide service without giving due notice to the public. [00:34:07] Speaker 04: That only gets you so far because the way that I read this statute is that when Congress amended all of this in 2009, I guess, [00:34:19] Speaker 04: They set forth that the PRC could address and provide relief when the Postal Service violated its statute. [00:34:32] Speaker 04: I mean, it's explicit. [00:34:34] Speaker 04: That's what 3662 says. [00:34:37] Speaker 04: That's what the regulations implementing 3662 say. [00:34:41] Speaker 04: In your jurisdictional hook of 39 USC 409 says, except as otherwise provided in this title, U.S. [00:34:53] Speaker 04: District Courts shall have original but not exclusive jurisdiction. [00:34:58] Speaker 04: Correct. [00:34:58] Speaker 04: How are we to give that except as otherwise provided in this title [00:35:04] Speaker 04: how is that language supposed to do work if you say that well even though this title otherwise says you go to the PRC if the Postal Service [00:35:19] Speaker 04: operates outside of his jurisdiction, but we can just ignore that and go to the district court instead. [00:35:27] Speaker 02: No, we're not asking to ignore that. [00:35:29] Speaker 02: I think the question is, it's an implied intent standard. [00:35:32] Speaker 02: The question is whether or not Congress has implied that the alternative procedure is the procedure that must be taken in lieu of district court jurisdiction. [00:35:40] Speaker 02: And I would just note, 409A is an interesting revision in the sense that it specifically addresses the kind of claim that we've brought here. [00:35:46] Speaker 02: It says that those claims can be brought in district court. [00:35:48] Speaker 04: And that's an important textual... Why does it say these claims can be brought in district court? [00:35:53] Speaker 04: It says, except as otherwise provided in this title. [00:35:56] Speaker 04: And in this title, it provides a mechanism for you to bring this sort of claim before the PRC and then get review in the DC Circuit. [00:36:06] Speaker 02: And that alternative procedure does not indicate or create the inference that the Congress intended to cut off district court jurisdiction. [00:36:13] Speaker 02: And there's several arguments in support of this. [00:36:15] Speaker 02: And one is that the question is whether or not the overall statutory scheme evinces an intent to cut off the district court jurisdiction. [00:36:22] Speaker 02: The 3662 Complaint Process says may lodge a complaint with the Roposter Regulatory Commission. [00:36:27] Speaker 02: The commission has up to 90 days to simply begin proceedings on a complaint. [00:36:31] Speaker 02: And if Congress intended for this body to adjudicate these sorts of high stakes ultra-virus claims, it would not have created such a relaxed timeframe for review. [00:36:39] Speaker 02: 410A exempts APA review, but that doesn't create... But the 90 days isn't a floor. [00:36:46] Speaker 04: It's a ceiling. [00:36:48] Speaker 04: There's nothing that says that the commission has to wait 90 days to act. [00:36:54] Speaker 02: It says that the agency only has or the commission has to begin proceedings before the 90 days or dismiss the proceedings. [00:37:04] Speaker 02: And I think what's important for our purpose is that there's no preliminary relief in that period. [00:37:08] Speaker 02: There's no possibility of expedited relief. [00:37:11] Speaker 04: Why is there no? [00:37:13] Speaker 04: I didn't see anything in your brief. [00:37:16] Speaker 04: or in the district court opinion, cited to say that there's no avenue for preliminary relief or expedite relief. [00:37:24] Speaker 04: It's just ipsy dixit. [00:37:25] Speaker 04: We say there isn't, so there isn't. [00:37:29] Speaker 02: Well, Your Honor, there's nothing in the regulations. [00:37:31] Speaker 02: The government has not disputed this argument that we've been raised. [00:37:35] Speaker 02: And so I would just point out, I'll give an example. [00:37:38] Speaker 02: So the government points to several complaints that were brought before the commission that raised 361B. [00:37:45] Speaker 02: And indeed, one of those complaints sought an emergency injunction. [00:37:49] Speaker 02: And it's just notable that in that complaint, this is on page 42 of their brief, the complaint was filed on March 15th, 2022. [00:37:57] Speaker 02: And, oh, I'm sorry, it was... [00:38:02] Speaker 02: The emergency address was filed on April 30, 2014, and it wasn't adjudicated for more than a month later on June 5, 2014. [00:38:08] Speaker 02: So they have brought forth examples of situations where the commission has failed to adjudicate these things on an emergency basis. [00:38:16] Speaker 02: And we're not aware of any examples where they were able to successfully adjudicate these things on an emergency basis or anything requiring them to adjudicate these things on an emergency basis. [00:38:24] Speaker 05: What's the emergency if we're talking about post-2020 election? [00:38:32] Speaker 05: And so say we're in January 2021, December 2020, name your time. [00:38:37] Speaker 05: At that point, you could go to the Post Regulatory Commission, and their normal 90-day clock is in effect. [00:38:48] Speaker 05: I mean, apparently they can move as fast as a month. [00:38:49] Speaker 05: You just cited an instance in which they moved as fast as a month. [00:38:53] Speaker 05: What is the exigency going on there? [00:38:56] Speaker 05: And I'm thinking of it in terms of ultrafieries. [00:38:58] Speaker 05: Is there adequate alternative mechanism? [00:39:01] Speaker 05: If the case is brought in December 2020, [00:39:07] Speaker 05: Is it your view that even in that situation in December 2020, that it can be brought before the district, an ultra-various action can be brought? [00:39:14] Speaker 02: Yes, Your Honor, it could be. [00:39:15] Speaker 02: And that's precisely because of the nature of the injuries, irreparable harms that the plaintiffs are suffering. [00:39:20] Speaker 02: And I just laid those out. [00:39:21] Speaker 02: We're talking about a massive change to nationwide service that resulted in a basically unprecedented drop in on-time delivery and delays that were having a constant and ongoing burden on plaintiffs' administrative processes. [00:39:35] Speaker 04: But what does irreparable harm have to do with it? [00:39:39] Speaker 04: The remedial authority is broad. [00:39:43] Speaker 04: I think that some of these injuries... It says that the commission can order [00:39:53] Speaker 04: order broad relief, that's what the rulemaking says. [00:40:00] Speaker 04: And you can enforce that order if you need to in the district court. [00:40:07] Speaker 04: So I don't understand why the nature of the injuries means that you can't go before the PRC. [00:40:13] Speaker 02: I think because of the nature of the injuries, it's not clear that they can be compensated in any way. [00:40:18] Speaker 02: I mean, we're talking about millions of people who are subject to, who require the mails in order to obtain their public benefits, just as an example in New York City. [00:40:26] Speaker 04: The PRC could issue an order that says all of the same things that the district court said. [00:40:34] Speaker 02: It could not say that you must stop implementing the procedures while the matter is pending on an emergency basis. [00:40:42] Speaker 04: what statute or regulation tells me that they couldn't say that. [00:40:48] Speaker 02: There's nothing empowering them to make that determination. [00:40:51] Speaker 02: There's no example that's been brought forward of them making such a determination. [00:40:56] Speaker 04: The statute says [00:40:58] Speaker 04: that if the CRC finds a complaint to be justified, it shall order that the Postal Service takes such action as the Commission considers appropriate in order to achieve compliance. [00:41:16] Speaker 04: Tell me how that doesn't [00:41:18] Speaker 04: It doesn't allow them to issue preliminary relief, permanent relief, any other sort of relief that a court could. [00:41:28] Speaker 02: Your Honor, my argument is not that on the face of the statute, it prohibits preliminary or emergency relief. [00:41:36] Speaker 02: It's just that it's not available. [00:41:38] Speaker 02: And as you just pointed out in the prior presentation, there's no regulations that provide for this. [00:41:44] Speaker 02: It's unclear that there are any examples for the commission that have provided for this sort of relief. [00:41:48] Speaker 02: And this is an emergency situation, especially when... So in this case, on that... [00:41:52] Speaker 05: there's a preliminary injunction in place. [00:41:56] Speaker 05: So at that point, what is the emergency? [00:41:58] Speaker 05: Because the preliminary injunction's in place, and then the provisions can't be effectuated. [00:42:04] Speaker 05: So if the preliminary injunction's in place, and why doesn't that give carte blanche to go before the PRC, take your time? [00:42:11] Speaker 05: I mean, it's not gonna be that much time because the PRC can act. [00:42:14] Speaker 05: And the PRC definitely has the remedies available to it that would serve your client's interest, cause it can say, [00:42:20] Speaker 05: to the USPS, you can't do this because you have to go get the advisory opinion first. [00:42:24] Speaker 05: You didn't do that. [00:42:25] Speaker 05: So stop this. [00:42:27] Speaker 05: I don't think you dispute that the PRC could do. [00:42:30] Speaker 05: And with the preliminary injunction in place as a backdrop, then why doesn't that, that in itself kind of deals with the emergency? [00:42:36] Speaker 05: Because you've got the relief from the district court, hold everything in place. [00:42:41] Speaker 05: These provisions can't be effectuated. [00:42:42] Speaker 05: Then it gives you breathing space to go to the PRC. [00:42:46] Speaker 02: I see my time has expired. [00:42:48] Speaker 02: I would just say we don't have an argument here that during the preliminary injunction, there was an ongoing emergency because all of these provisions had been enjoined. [00:42:57] Speaker 02: I think the problem there is that the preliminary injunction would have made completely unclear that 3662 would have been able to provide any relief whatsoever and whether or not there could have been a [00:43:10] Speaker 02: It could have been reviewable in court following an order from the commission because everything would have been enjoined and there would be no controversy before the court. [00:43:18] Speaker 02: Based on a likelihood standard, not on a... Based on the preliminary injunction standard? [00:43:25] Speaker 02: Correct, Your Honor. [00:43:27] Speaker 02: But in any case, there would be no harm ongoing necessarily to plaintiffs as a result of the changes in the postal services. [00:43:37] Speaker 02: Yes. [00:43:39] Speaker 02: Any further questions? [00:43:39] Speaker 02: If there are no further questions, we ask you to confirm. [00:43:42] Speaker 02: Thank you. [00:43:43] Speaker 02: Thank you, Councilor. [00:43:49] Speaker 05: Dean Meister will give you two minutes for rebuttal. [00:43:52] Speaker 01: Thank you, Your Honor. [00:43:53] Speaker 01: I have three points that I'd like to try to get to. [00:43:55] Speaker 01: First, with respect to some of the colloquies that were happening earlier, I just wanted to emphasize that although arguments [00:44:07] Speaker 01: against jurisdiction cannot be forfeited. [00:44:10] Speaker 01: Arguments in favor of jurisdiction can. [00:44:12] Speaker 01: And so we heard my friend on the other side say that they don't dispute the relevant time period for the inquiry of whether there was meaningful review is 2022 and so the court can follow that. [00:44:22] Speaker 01: concession in this case. [00:44:23] Speaker 01: And if you look at 2022, the second point, at that point in time, the case was fundamentally different than it was when it was filed in 2020. [00:44:32] Speaker 01: At that point, plaintiffs wanted an injunction or support an injunction against future actions of the postal service, not the specific ultra various actions that justified the court's exercise of authority. [00:44:43] Speaker 01: And as this court has said, ultra various review is [00:44:46] Speaker 01: for the narrow purpose of enjoining that agency error that is so extreme that it requires the immediate intervention of an equity court. [00:44:55] Speaker 01: Those actions, the district court found, they were specific actions that happened in 2020. [00:44:58] Speaker 01: In 2022, those actions were no longer on the table. [00:45:03] Speaker 01: Plaintiffs wanted relief against future actions. [00:45:05] Speaker 01: That's not what ultra-various review is about. [00:45:08] Speaker 01: And in addition, that kind of relief wouldn't even have been available under the APA. [00:45:13] Speaker 01: And this is not an APA case. [00:45:14] Speaker 01: Congress expressly precluded an APA cause of action here. [00:45:19] Speaker 01: And finally, I heard my friend on the other side say that even in December 2020, it would not have been appropriate to require them to go to the PRC because [00:45:29] Speaker 01: slowdowns with the mail continue to cause harms to them at that point in time. [00:45:34] Speaker 01: But that's the kind of argument that any user of the mail could always make, that if something the postal service is doing is slowing the mail in some way that's harming their use of the mail, the result of that would be that claims would never be channeled to the postal regulatory commission. [00:45:48] Speaker 01: And we know that that's [00:45:49] Speaker 01: what Congress intended by setting up this specialized scheme that ensures that the postal services expert regulator has a role in saying whether or not they're complying with the statute. [00:45:58] Speaker 01: And then that question would ultimately be reviewed by this court. [00:46:02] Speaker 01: I see that my time is up. [00:46:04] Speaker 01: If there are no questions. [00:46:06] Speaker 05: Thank you, counsel. [00:46:07] Speaker 05: Thank you to both counsel. [00:46:08] Speaker 05: We'll take this case under submission.