[00:00:05] Speaker 01:
Next case is Duluth Corporation versus the United States in tech systems, 2016-2304.

[00:00:13] Speaker 01:
Ms.

[00:00:16] Speaker 01:
Rudolph-Park?

[00:00:18] Speaker 04:
Yes, Your Honor.

[00:00:21] Speaker 04:
May it please the court.

[00:00:22] Speaker 04:
The trial court's comments from the bench, which explicitly disclaimed a ruling, were an insufficient basis upon which to find Duluth a prevailing party under the Equal Access for Justice Act.

[00:00:33] Speaker 04:
Its decision should be reversed for three main reasons.

[00:00:36] Speaker 04:
First, the Army's corrective action was voluntary, and the trial court found the case moot when it dismissed the case several weeks following oral argument.

[00:00:43] Speaker 01:
But doesn't it make sense that the trial judge knew what she did?

[00:00:48] Speaker 01:
Knew whether what she had done was to indicate what action she was taking and whether it changed the positions of the parties?

[00:01:00] Speaker 04:
Well, certainly, Your Honor, the trial court knew that

[00:01:04] Speaker 04:
at the time of oral argument and her subsequent written decision mooting the case, that she found the Army's conduct to be voluntary.

[00:01:12] Speaker 04:
And in fact, in appendix 173 to 176 in her dismissal order, she explained that the Army's voluntary conduct demonstrated there was no chance the activity would recur and found the case to be moot.

[00:01:24] Speaker 04:
And the trial court could have at any point issued a ruling during oral argument or subsequent to oral argument prior to corrective action.

[00:01:33] Speaker 04:
But the trial court elected not to do so.

[00:01:36] Speaker 04:
And the trial court, in terms of some of her comments on the record regarding voluntariness, explained that the scope and the breadth of any corrective action was up to the Army.

[00:01:48] Speaker 04:
Explained that if the Army took corrective action.

[00:01:51] Speaker 01:
She said the court made clear that the Army should take corrective action.

[00:01:57] Speaker 01:
Defendant understood how the court intended to rule.

[00:02:02] Speaker 04:
Certainly, the trial court did make those comments.

[00:02:06] Speaker 04:
And the trial court made clear at her belief that corrective action should be taken.

[00:02:10] Speaker 04:
But the important distinction between this case and the other cases in which prevailing party status was found is the trial court issued no order, orally or otherwise.

[00:02:22] Speaker 04:
Instead, it issued its recommendations and its beliefs.

[00:02:25] Speaker 03:
Well, let's just ask this.

[00:02:27] Speaker 03:
Could you appeal that statement of intention?

[00:02:30] Speaker 04:
We could not have, Your Honor.

[00:02:31] Speaker 04:
There is no way to appeal that statement.

[00:02:33] Speaker 04:
And that is why Duluth could not be a prevailing party.

[00:02:36] Speaker 04:
As Your Honor indicated, the comments from the bench ordered no relief to Duluth.

[00:02:44] Speaker 04:
And under Buchanan in this court's precedent, that is an insufficient basis upon which to award fees.

[00:02:51] Speaker 02:
The record reflects that the Army understood what the judge was saying.

[00:02:55] Speaker 02:
The judge was saying, this is home and a rule.

[00:02:57] Speaker 02:
This is where we're headed.

[00:02:59] Speaker 02:
You may want to go tell your client.

[00:03:02] Speaker 04:
Correct, Your Honor.

[00:03:03] Speaker 04:
The judge certainly expressed her beliefs.

[00:03:06] Speaker 02:
Imagine there was a court reporter there, right?

[00:03:08] Speaker 02:
Taking all this down?

[00:03:10] Speaker 04:
Correct, Your Honor.

[00:03:10] Speaker 04:
The transcript is in the appendix.

[00:03:13] Speaker 02:
So let's say if, after making all those statements, then the judge is to fine on behalf of the Army.

[00:03:22] Speaker 02:
And that would be on appeal.

[00:03:23] Speaker 02:
Wouldn't that be reversible there?

[00:03:26] Speaker 02:
I mean, wouldn't we look at all those statements that are made and her opinion, or rather the statements and her conclusions, her legal conclusions, and say they're not consistent with the opinion?

[00:03:38] Speaker 04:
If I understand your honor's question, whether if the trial court immediately following argument stated that it was ruling on behalf of the Army, whether that would be reversible error?

[00:03:51] Speaker 02:
Let's say everything is the same as the cases.

[00:03:55] Speaker 02:
Except her decision would fine on behalf of the Army.

[00:03:59] Speaker 04:
Yes.

[00:04:00] Speaker 02:
If... And then they come up in appeal.

[00:04:04] Speaker 04:
If the decision is with respect to the prevailing party, then there was no order entered.

[00:04:10] Speaker 02:
Forget the fees.

[00:04:11] Speaker 02:
I'm just talking about on the merits.

[00:04:13] Speaker 04:
On the merits.

[00:04:14] Speaker 04:
If everything was the same and the Army took corrective action already.

[00:04:18] Speaker 02:
No.

[00:04:18] Speaker 02:
Everything's the same except that the judge comes back and rules in favor of the Army.

[00:04:23] Speaker 04:
prior to the corrective action immediately following argument?

[00:04:27] Speaker 02:
After the case is over, she rules.

[00:04:30] Speaker 02:
Her decision at the end of the day is in favor of the Army.

[00:04:35] Speaker 04:
If the trial court found in favor of the Army based on the comments and relied only on the comments at oral argument, that could be reversible error.

[00:04:47] Speaker 03:
Really?

[00:04:47] Speaker 04:
I suppose.

[00:04:48] Speaker 04:
I don't.

[00:04:49] Speaker 03:
Really?

[00:04:49] Speaker 03:
So a trial court says,

[00:04:53] Speaker 03:
Well, I guess your speculation is the trial court writes a decision and a judgment and says, based on my comments.

[00:05:06] Speaker 04:
Yes, Your Honor.

[00:05:08] Speaker 04:
If the decision was solely based on the comments of oral argument and there was no further.

[00:05:12] Speaker 03:
And there's no analysis in the opinion.

[00:05:14] Speaker 03:
Correct.

[00:05:14] Speaker 03:
Correct.

[00:05:15] Speaker 03:
But supposing there is analysis in the opinion, which rejects the, since I was thinking this, but I've just changed my mind.

[00:05:22] Speaker 04:
then that would not be a reversible error.

[00:05:24] Speaker 04:
And the trial court does often change its mind after oral argument.

[00:05:30] Speaker 04:
That is one of the reasons why this court has found that a court's written opinion should govern versus statements made at oral argument.

[00:05:39] Speaker 03:
And if in the case that you see- Have you ever filed a post-argument brief?

[00:05:45] Speaker 04:
Certainly after trial, I have, yes, Your Honor.

[00:05:48] Speaker 04:
And in this case, the trial court offered the briefing to the parties on the very issue that it indicated the trial court's decision would turn upon.

[00:05:59] Speaker 04:
And that briefing was offered early in the proceedings and was echoed subsequently in comments by the trial court.

[00:06:09] Speaker 04:
Now, the trial court's ruling is contrary.

[00:06:12] Speaker 04:
The third reason that the trial court's ruling should be reversed is it's contrary to Buchanan.

[00:06:17] Speaker 04:
And this court's precedent as this.

[00:06:19] Speaker 02:
Counselor, the trial court stated reasons.

[00:06:26] Speaker 02:
The trial court said that there's good cause to extend the holding of universal fidelity.

[00:06:31] Speaker 02:
And says that case applies to here.

[00:06:33] Speaker 02:
And then she outlines the matter was fully briefed at the time the statements were made.

[00:06:38] Speaker 02:
The court arrived at legal conclusions after considering the merits of the parties.

[00:06:43] Speaker 02:
And she made the parties aware of these legal conclusions.

[00:06:46] Speaker 02:
She says, on this basis, this is like universal fidelity.

[00:06:52] Speaker 02:
And if I look at that and the standard of review is an abuse of discretion, then how can I find that she's wrong?

[00:07:02] Speaker 02:
How can I say that she abused her discretion in this regard?

[00:07:06] Speaker 04:
Well, first, Your Honor, the standard of review here is de novo.

[00:07:09] Speaker 04:
And the decision of whether a party prevails.

[00:07:13] Speaker 02:
Are you saying this because we're interpreting the e-jail statute?

[00:07:16] Speaker 02:
That's why it's de novo?

[00:07:18] Speaker 04:
Because this court's precedent in Brickwood, Rice, Chapman, and all the other circuits state that the decision of a prevailing party is a question of law, which is entitled to no deference.

[00:07:29] Speaker 04:
And the trial court here, its reliance on universal fidelity, which is a non-binding decision,

[00:07:35] Speaker 02:
The trial court's decision on the Egypt fees ignored largely this court's opinions in Brickwood and... Wouldn't we be reviewing our precedent in case law along the lines of whether there's sufficient judicial imprimatur in this case?

[00:07:58] Speaker 04:
This court would be ruling whether there is sufficient judicial imprimatur, yes, which is a legal question.

[00:08:04] Speaker 04:
which this court in, again, Brickwood, Rice, and Chapman, amongst others, found was a question to be reviewed de novo.

[00:08:14] Speaker 04:
Although Deleu urges this court adopt the question of deference and give deference to the trial courts as it characterizes the legal conclusions and findings of fact, the trial court made clear that it issued no decision which was finalizing in any manner

[00:08:34] Speaker 04:
its preliminary findings or conclusions.

[00:08:40] Speaker 04:
And the import, Your Honors, as this Court has discussed extensively in its prior decisions, is that there must be an actual court-affected change in legal relationship.

[00:08:53] Speaker 04:
And there was no court-affected change here.

[00:08:56] Speaker 04:
Moreover, the Army's conduct was voluntary.

[00:08:59] Speaker 04:
As this Court found in Chapman, for example, even though in that case,

[00:09:05] Speaker 04:
the agency had to go back and make changes to a corrective action upon the trial court's comments, the action was considered no less voluntary.

[00:09:15] Speaker 04:
Here the Army unilaterally took action without any direction from the court to do so.

[00:09:19] Speaker 04:
And the trial court's decision on Egypt fees should be reversed.

[00:09:24] Speaker 02:
So a troubling aspect of this, if we follow your reasoning, is that government agencies can wait.

[00:09:34] Speaker 02:
not take any action until you go through a trial process.

[00:09:40] Speaker 02:
There's testimony.

[00:09:43] Speaker 02:
There's evidence that's submitted.

[00:09:45] Speaker 02:
The court makes legal conclusions.

[00:09:47] Speaker 02:
And then depending on which way the winds are blowing, you can go back, take corrective action, and say there's no prevailing party.

[00:09:57] Speaker 02:
There's no IJA fees applicable.

[00:09:59] Speaker 02:
And it seems to me that defeats the purposes of the IJA statute.

[00:10:04] Speaker 02:
and gets into a point where it makes it more difficult to obtain legal help, which in my book has implications for access to justice.

[00:10:20] Speaker 04:
Two responses to that, Your Honor.

[00:10:22] Speaker 04:
First, the award a fee is under EJA.

[00:10:28] Speaker 04:
must be strictly statutorily construed.

[00:10:30] Speaker 04:
And the Supreme Court in Buchanan found that the government, in waiving its sovereign immunity to award fees, there must be certain formalistic, if you wish to approach it that way, there must be a manner in which a party can determine if fees are awarded.

[00:10:50] Speaker 04:
And that is a court-ordered change in legal relationship.

[00:10:53] Speaker 03:
Was the trial court prohibited

[00:10:56] Speaker 03:
in any fashion by the government's action from issuing findings, in fact, conclusions of law and a judgment?

[00:11:03] Speaker 04:
Prior to or after the corrective action?

[00:11:05] Speaker 03:
After the corrective action.

[00:11:07] Speaker 04:
Had the trial court issued some sort of findings and conclusions, that would have been the nature of an advisory opinion, which the trial court explicitly stated it would not issue.

[00:11:16] Speaker 04:
In that instance, because the Army had already acted,

[00:11:21] Speaker 04:
there would have been no merits findings necessary because the case was moot as the trial court found.

[00:11:29] Speaker 04:
And to go back to your other point, Judge Rana, if I recall correctly, that you seem to be asking if, in essence, is this fair?

[00:11:40] Speaker 04:
Again, because the waiver of sovereign immunity must be even.

[00:11:45] Speaker 02:
Well, you can see it that way.

[00:11:46] Speaker 02:
I'm just asking if it's air.

[00:11:49] Speaker 02:
At the end of the day, I'm looking whether the court erred or not, not whether it was fair.

[00:11:56] Speaker 04:
The court certainly erred here.

[00:11:57] Speaker 04:
The trial court's decision should be reversed.

[00:12:00] Speaker 04:
And the trial court's comments from the bench could be considered analogous to, for instance, a trial court urging that the parties engage in settlement discussions and informing the defendant, perhaps, that it considered its position to be XYZ.

[00:12:18] Speaker 04:
Had this not been a bid protest and the Army could have engaged in settlement discussions, then had the party settled, there would have been no entitlement to fees unless they were somehow reserved.

[00:12:30] Speaker 04:
And I would like to reserve my remaining time unless Your Honors have more questions for me at this point.

[00:12:35] Speaker 01:
We will do that for you.

[00:12:37] Speaker 01:
Mr. Lasky.

[00:12:44] Speaker 02:
Kelter, you have a hard grow to hoe here, don't you?

[00:12:47] Speaker 02:
I think you do.

[00:12:49] Speaker 00:
Well, I would disagree with you, Your Honor.

[00:12:52] Speaker 00:
I would say this is a very poorly defined term, I think, overall by the courts.

[00:12:59] Speaker 00:
However, particularly by the Supreme Court, they just said judicial imprature, didn't say a heck of a lot more.

[00:13:05] Speaker 00:
However, the universal fidelity case and the Palmetto, there are very few cases dealing with that.

[00:13:12] Speaker 03:
Why are things rolling against you?

[00:13:13] Speaker 03:
Can you go to the Supreme Court on a writ of certiorari?

[00:13:16] Speaker 00:
I apologize, Your Honor.

[00:13:18] Speaker 00:
I missed the first part.

[00:13:18] Speaker 03:
I said I'm thinking of ruling against you.

[00:13:21] Speaker 03:
Can you now go to the Supreme Court on a writ of certiorari?

[00:13:25] Speaker 00:
I don't know the rules, Your Honor, of that, unfortunately.

[00:13:31] Speaker 00:
But I would say no, until there was you personally saying that would not be enough.

[00:13:36] Speaker 00:
But in this case, there's a really big difference.

[00:13:38] Speaker 00:
In this case, there's two main factors here, according to

[00:13:44] Speaker 00:
the test in Palmetto, which we think is essentially the test that the court applied in this case and has adopted the same test that was applied in universal fidelity, which the government has never argued in this case was wrongly decided.

[00:13:57] Speaker 00:
And that is that there's a resolution of the merits in the case and that the government's corrective action was not truly voluntary because it was taken after the resolution of the merits.

[00:14:11] Speaker 00:
And in this case,

[00:14:12] Speaker 00:
The court did enter legal conclusions in the oral argument transcript, Your Honor.

[00:14:19] Speaker 03:
No.

[00:14:20] Speaker 03:
Where did it issue findings affecting conclusions of law?

[00:14:23] Speaker 03:
You say at page 32 of your brief it issued findings and conclusions.

[00:14:27] Speaker 00:
Where?

[00:14:28] Speaker 00:
The conclusions that it issued were it said that the award to TSI was, quote, contrary to law, arbitrary, capricious, and irrational.

[00:14:36] Speaker 03:
Where is that?

[00:14:37] Speaker 03:
Where is that document?

[00:14:39] Speaker 00:
That's the trial court's transcript, Your Honor.

[00:14:42] Speaker 00:
That's where that is entered.

[00:14:44] Speaker 00:
It's in the transcript.

[00:14:47] Speaker 02:
Your Honor, this is a... Why can't you argue that that's sufficient judicial infringement?

[00:14:52] Speaker 00:
That's what I am arguing, Your Honor, that those statements at oral argument are sufficient judicial infringement.

[00:14:58] Speaker 02:
Well, I mean, not just the statements alone, but the fact that a court reporter took them down and they exist in the record.

[00:15:05] Speaker 00:
And that's more what I mean, Your Honor.

[00:15:08] Speaker 03:
What I mean... Did they exist in the...

[00:15:11] Speaker 03:
as an entry of judgment by a clerk?

[00:15:16] Speaker 00:
Your Honor, there is not a requirement, according to this court, that there be an entry of judgment.

[00:15:22] Speaker 00:
In the Rice case, this court said it's sufficient if there is an or equivalent.

[00:15:27] Speaker 00:
And according to the Palmetto case, which I know is not binding on this court, and the University of Philadelphia case, which got not binding but has not been disputed, there was no final judgment entered in either of those cases.

[00:15:39] Speaker 00:
Your honor mentioned that this couldn't be appealed immediately, but the partial motion for summary judgment granting in Palmetto could be no more appealed immediately than this issue, nor could the universal fidelity interim opinion have been immediately appealed.

[00:15:56] Speaker 00:
There would have needed to be a final judgment, but in both those cases and explaining

[00:16:00] Speaker 00:
The explaining addressing Buchanan and in the universal fidelity addressing all the Federal Circuit's precedents on these cases.

[00:16:07] Speaker 03:
You cite Justice Scalia a lot from Buchanan.

[00:16:13] Speaker 00:
From Carham.

[00:16:14] Speaker 00:
Oh, sorry.

[00:16:14] Speaker 00:
You're right.

[00:16:15] Speaker 00:
Correct, Your Honor.

[00:16:16] Speaker 00:
Correct.

[00:16:16] Speaker 03:
But you don't mention that you're relying on a concurrence as opposed to a majority opinion.

[00:16:25] Speaker 00:
Your Honor, that- What authority do you have for that?

[00:16:28] Speaker 00:
The majority said in that case in Buchanan, it recognized that even though Parham was under the catalyst theory, it said Parham was still rightly decided, even under this Buchanan threshold test.

[00:16:42] Speaker 00:
And they didn't go beyond that.

[00:16:44] Speaker 00:
Whereas Scalia, Justice Scalia actually went and explained what that meant, what the elements that they were looking for in Parham that still made a good law.

[00:16:55] Speaker 00:
And then Parham is a really unique case, because in that case, the corrective action was taken before the resolution.

[00:17:01] Speaker 03:
Can you hear my question?

[00:17:02] Speaker 03:
I'm sorry.

[00:17:02] Speaker 03:
Sorry.

[00:17:03] Speaker 03:
What authority do you have for relying on the concurrence as opposed to the majority?

[00:17:09] Speaker 00:
I'm simply saying that the concurrence is further explaining the reasoning of the majority opinion.

[00:17:16] Speaker 00:
But ultimately, the Parham case

[00:17:18] Speaker 00:
The Parham interpretation is not really the main point of argument.

[00:17:23] Speaker 00:
It's really just a secondary argument, we're saying, that if the court were to find that the action of the government was actually voluntary, that it would still not matter, because in the Parham case, the corrective action was taken before the case was even filed.

[00:17:40] Speaker 00:
And nevertheless, the Eighth Circuit said,

[00:17:43] Speaker 00:
that there was a violation of the Civil Rights Act, and then remanded with the ability to enforce that in the future if it ever became necessary.

[00:17:53] Speaker 00:
So the government emphasizes the idea that the merits conclusion needs to be immediately enforceable for there to be judicial imprature.

[00:18:06] Speaker 00:
But in Palmetto, in Parham,

[00:18:09] Speaker 00:
in universal fidelity, none of those were immediately enforceable.

[00:18:12] Speaker 00:
They were enforceable by future court action if necessary.

[00:18:18] Speaker 00:
Now, the government mentions the standard of view.

[00:18:22] Speaker 00:
And I just want to discuss that real briefly.

[00:18:26] Speaker 03:
You agree that as a waiver of sovereign immunity, the statute is strictly construed.

[00:18:33] Speaker 00:
Yes, Your Honor.

[00:18:35] Speaker 00:
But there's no construction.

[00:18:37] Speaker 00:
that Buckhannon or any of the decisions by this court have made that construes this statute in a manner where the court statements at oral argument can't be considered judicial imprature.

[00:18:50] Speaker 00:
The court statements were made.

[00:18:51] Speaker 00:
They're basically rulings from the bench at oral argument on the record.

[00:18:55] Speaker 03:
As a trial judge, I often used to think out loud, dialoguing with counsel.

[00:19:03] Speaker 03:
Was I bound by those thoughts?

[00:19:06] Speaker 00:
You would be no more bound than a partial motion for summary judgment, which is ultimately, until a final judgment is entered, is not a binding judgment.

[00:19:18] Speaker 03:
Your Honor, so I would be bound to that extent.

[00:19:21] Speaker 03:
I apologize, Your Honor.

[00:19:22] Speaker 03:
I would be bound to the extent of a partial motion for summary judgment.

[00:19:28] Speaker 00:
I believe it would be analogous, Your Honor.

[00:19:30] Speaker 00:
Gee, isn't that pretty poor policy.

[00:19:33] Speaker 00:
I believe that in this case, the court was very clear

[00:19:36] Speaker 00:
that she was not simply saying, this is how I'm leaning, this is how I feel.

[00:19:41] Speaker 00:
And that's the difference between the NRCC case that was decided by the First Circuit, which is actually the only case that I'm aware of dealing with oral statements.

[00:19:52] Speaker 02:
In fact, in the... After making those comments, could she have changed her mind?

[00:19:57] Speaker 00:
She could have changed her mind just as much as a judge could have granted reconsideration on a partial motion for summary judgment.

[00:20:04] Speaker 00:
but she had resolved the merits of the case in her statement, since she was very clear about that.

[00:20:11] Speaker 00:
Not only did she state that the decisions were contrary to law, arbitrary, capricious, irrational, but she said that it seems an absolute departure of reality.

[00:20:20] Speaker 00:
There's no question in my mind.

[00:20:21] Speaker 00:
Those are the terms she was using.

[00:20:23] Speaker 00:
She said there were ample grounds to sustain the protest, and she didn't merely say

[00:20:28] Speaker 00:
It wasn't just a suggestion that she would require corrective action.

[00:20:32] Speaker 00:
She said, quote, corrective action should be taken in this case.

[00:20:36] Speaker 00:
Discussions have got to be reopened, and corrective action is certainly necessary in this case.

[00:20:42] Speaker 00:
And then at the close of the oral argument, after this discussion about the additional briefing, which I'm happy to discuss, she said her views on the case were definite.

[00:20:56] Speaker 00:
And that she'd even prepared a draft decision, which not only had those views in it that she had stated at oral argument.

[00:21:03] Speaker 00:
It's a draft.

[00:21:05] Speaker 00:
Which that's what she referred to it.

[00:21:07] Speaker 00:
She had drafted it.

[00:21:08] Speaker 03:
Right.

[00:21:08] Speaker 03:
It's a draft.

[00:21:10] Speaker 00:
Correct.

[00:21:10] Speaker 00:
I don't think that is the fact that she had or hadn't prepared the draft decision is critical to this case.

[00:21:17] Speaker 00:
Because what I'm trying to say is the judicial aperture is the state.

[00:21:21] Speaker 03:
What is critical is it's a draft.

[00:21:23] Speaker 03:
She refers to it as a draft decision.

[00:21:27] Speaker 00:
Well, I think that doesn't discount, Your Honor, respectfully, I think it doesn't discount the fact that her statements regarding the conclusions on the merit were definite at oral argument.

[00:21:38] Speaker 00:
The fact she hadn't finalized the written... She could have entered an oral judgment.

[00:21:43] Speaker 03:
She could have said, here's my decision.

[00:21:46] Speaker 03:
Read it into the record.

[00:21:48] Speaker 03:
That's a judgment, right?

[00:21:50] Speaker 03:
Directed the entry of judgment.

[00:21:53] Speaker 00:
I don't know if that, I assume she could have.

[00:21:59] Speaker 00:
But part of the reason she was trying essentially to do the government a favor and give them an opportunity to take the corrective action she was going to require they take without her having to issue a written opinion.

[00:22:14] Speaker 00:
And she specifically said that if she had to write a written opinion, it was going to be

[00:22:20] Speaker 00:
It could be potentially embarrassing to the government, given the fact there were some discovery issues in the GAO process that came up.

[00:22:30] Speaker 00:
Now, the government says that the door was open to further briefing.

[00:22:35] Speaker 00:
And the court did say, she never ruled.

[00:22:39] Speaker 00:
There was a request for some additional briefing.

[00:22:41] Speaker 00:
The court never ruled on it.

[00:22:42] Speaker 00:
But the court said, if you want additional briefing, you need to make it in the Joint Status Report request.

[00:22:48] Speaker 00:
And so the hearing was on October 22.

[00:22:53] Speaker 00:
So first of all, that additional briefing entailed one document.

[00:23:00] Speaker 00:
It was about one document.

[00:23:01] Speaker 00:
And that document had no actual

[00:23:07] Speaker 00:
impact on the ultimate resolution of merits that the court discussed in the substantial, in the EG, EA, JAA opinion regarding the government having a substantial basis for its argument in that section.

[00:23:23] Speaker 00:
But more importantly, even if the potential for additional briefing hadn't been foreclosed at the hearing, it was definitely foreclosed on November 9 when the government didn't request additional briefing in its Joint Status Report.

[00:23:36] Speaker 00:
So by that point, there's no more additional briefing for sure.

[00:23:40] Speaker 00:
And the government hasn't taken corrective action at that point.

[00:23:43] Speaker 00:
The government doesn't take corrective action.

[00:23:44] Speaker 03:
The fact that she's offering the opportunity for additional briefing indicates that she's saying she could change her mind.

[00:23:53] Speaker 00:
If that's the case, Your Honor.

[00:23:55] Speaker 00:
And I would respectfully disagree, because after she said that the additional briefing had been discussed, she later said at the hearing that her

[00:24:05] Speaker 00:
views on the case were, quote, definite, and that corrective action was certainly necessary.

[00:24:11] Speaker 00:
But even if that's the case, even if she could change her mind based on additional briefing, additional briefing was foreclosed on November 9.

[00:24:21] Speaker 00:
And no corrective action had been taken at that point.

[00:24:25] Speaker 00:
So at that point, whatever uncertainty there was as to the resolution of the merits was gone.

[00:24:33] Speaker 00:
It was resolved at that point, because there was no more additional briefing.

[00:24:36] Speaker 00:
And then on, the government didn't take corrective action, I think, until the 12th or 13th of November, three days later.

[00:24:42] Speaker 00:
And the case wasn't dismissed for several weeks after that.

[00:24:46] Speaker 03:
I'd like to- So the government took corrective action instead of filing additional briefing.

[00:24:54] Speaker 03:
So what?

[00:24:56] Speaker 03:
The court had the opportunity to change its mind.

[00:24:59] Speaker 03:
It indicated it.

[00:25:03] Speaker 03:
I don't, the court always has it.

[00:25:06] Speaker 03:
Does the court have changed its mind on November 15?

[00:25:11] Speaker 00:
At that point, I think the case, at that point, the government had already taken corrective action.

[00:25:22] Speaker 00:
So I don't, I think that the case was effectively mooted by November 15.

[00:25:27] Speaker 00:
So there was no more opportunity.

[00:25:29] Speaker 00:
The government argued that the court couldn't issue a decision at that point, couldn't issue a judgment in our favor at that point.

[00:25:35] Speaker 00:
So no, I don't think there was any opportunity anymore for the judge to rule.

[00:25:39] Speaker 00:
And I would just point out that in Buchanan, one of the policy aspects that Buchanan discussed in their decision is that they didn't anticipate

[00:25:57] Speaker 00:
cases where there would be an opportunity in an equitable relief case to essentially void fees by 11th hour corrective action after resolution of the merits.

[00:26:11] Speaker 00:
They said that the petitioner's fears of mischievous defendants only materializes in claims for equitable relief.

[00:26:19] Speaker 00:
And then they expressed skepticism that defendants' changes in conduct would move the case.

[00:26:26] Speaker 00:
in these types of situations.

[00:26:28] Speaker 00:
But bid protests, they do move the case.

[00:26:30] Speaker 00:
That's the court has held.

[00:26:32] Speaker 00:
They won't continue to hold, entertain a case after the corrective action has been taken.

[00:26:38] Speaker 00:
And the Palmetto case addressed that issue and said that where the corrective action is taken after resolution of the merits,

[00:26:54] Speaker 00:
then the corrective action is best described as involuntary.

[00:26:59] Speaker 00:
If the government had taken corrective action before the resolution of the merits, it could be described as voluntary.

[00:27:06] Speaker 00:
That was the Paul Meadows' court's, I think, attempt to try to differentiate the situation where a case is going to be dismissed as moot and equitable relief, which Buchanan said, well, we don't think that's going to happen.

[00:27:24] Speaker 00:
I would also note that if the court finds that Duluth is not the prevailing party, doing so will promote judicial and procurement inefficiency.

[00:27:38] Speaker 00:
In both this case and universal fidelity, the court was trying to do the government a favor by giving them early notice of how it was ruling on the merits, rather than having to wait several weeks

[00:27:52] Speaker 00:
I see my time is up.

[00:27:57] Speaker 00:
Rather than giving them time to wait several weeks for an opinion.

[00:28:04] Speaker 00:
The government has a strong interest, as well as the public, in advancing a re-procurement when the procurement itself was done wrong.

[00:28:14] Speaker 00:
And if the court is unable to make rulings from the bench like it did in this case,

[00:28:20] Speaker 00:
and needs to basically hold off to write a written opinion, it's going to push re-procurements back in the future, chill the court from making such statements in fear that will preclude clients like my own from obtaining fees.

[00:28:37] Speaker 00:
Thank you, Your Honor.

[00:28:37] Speaker 01:
Thank you, counsel.

[00:28:39] Speaker 01:
This product talk has almost three minutes for a bottle if you need it.

[00:28:44] Speaker 04:
Thank you, Your Honor.

[00:28:45] Speaker 04:
Just several brief points.

[00:28:47] Speaker 03:
Let me tell you what disturbs me about your argument, specifically the mootness discussion.

[00:28:58] Speaker 03:
And that is, what you're saying is that the government can take a completely frivolous position.

[00:29:07] Speaker 03:
and wait until the court has taken the matter under submission and is in the process of issuing its opinion and then act to negate the jurisdiction of the court.

[00:29:25] Speaker 03:
And it strikes me that under that circumstance, there is a substantial

[00:29:36] Speaker 03:
derogation to the IJA, the meaning of the IJA statute.

[00:29:42] Speaker 04:
Respectfully, Your Honor, I don't believe in this circumstance, certainly.

[00:29:47] Speaker 03:
There was any... I'm not saying this circumstance.

[00:29:50] Speaker 03:
I'm taking your argument to its logical conclusion.

[00:29:55] Speaker 03:
You are the government.

[00:29:56] Speaker 04:
To its logical conclusion, because IJA must be strictly construed, there must be some court-ordered

[00:30:05] Speaker 04:
The government, in other words, must have some idea of where the line is drawn for when it can, for instance, take corrective action or enter into a settlement and when the court has actually ruled.

[00:30:17] Speaker 04:
And without, for example, further guidance from this court in determining whether what statements, for instance, here from the bench could be considered or could not be considered to be a ruling, then the government won't know if it is, in fact, running afoul of anything.

[00:30:34] Speaker 03:
You would agree that the court could orally direct the entry of judgment, roll from the bench and orally direct the entry of judgment.

[00:30:43] Speaker 03:
Yes, Your Honor.

[00:30:45] Speaker 04:
Yes.

[00:30:45] Speaker 04:
And in cases where there is an oral decision, then following that decision, there is a docket entry memorializing such a fact.

[00:30:56] Speaker 04:
Brief points to Dulou's arguments.

[00:30:58] Speaker 04:
First, this court needs not adopt a new standard, as is encouraged by Dulou.

[00:31:03] Speaker 04:
The Palmetto case is readily distinguishable.

[00:31:06] Speaker 04:
There was a partial grant of summary judgment, which could have been subject to an interlocutory appeal.

[00:31:10] Speaker 04:
But also, the government in that case indicated it would not appeal and asserted that it would take corrective action and requested that the court hold open the record for it.

[00:31:22] Speaker 04:
None of these things happened here.

[00:31:24] Speaker 04:
Further, the Palmetto test that is encouraged by DeLue is not used by any other circuit, including the Seventh Circuit.

[00:31:30] Speaker 04:
Zesser versus Keith, which we cited in our yellow brief, discussed that the trial court's grant of partial summary judgment in that case did not direct the defendants to do or refrain from doing anything.

[00:31:42] Speaker 04:
That is exactly what happened here.

[00:31:44] Speaker 04:
The trial court did not force the government to take any action.

[00:31:48] Speaker 04:
Similarly, Parham Buckhannon, a test that Duluth urges, that involves a judgment capable of enforcement, which is not the case here.

[00:31:57] Speaker 04:
There are no further questions.

[00:31:59] Speaker 01:
Thank you, counsel.

[00:32:00] Speaker 01:
We'll take the case under advisement.

[00:32:04] Speaker 04:
All rise.

[00:32:14] Speaker 01:
The honorable courts and judges,