[00:00:00] Speaker 03: Good morning, everyone. [00:00:01] Speaker 03: We're very appreciative and excited to have Judge Ecken here from New York. [00:00:07] Speaker 03: He's a district court judge who's agreed to sit with us by designation. [00:00:11] Speaker 03: And so we're happy to have him. [00:00:12] Speaker 03: Thank you for coming. [00:00:14] Speaker 03: Our first case for argument today is 24-1522, life science logistics versus the United States. [00:00:22] Speaker 03: Counsel, please proceed. [00:00:25] Speaker 02: Good morning, Your Honors. [00:00:26] Speaker 02: May it please the Court. [00:00:27] Speaker 02: The trial court erred by setting aside the agency's stay override decision in this case without considering the injunctive relief factors, which this Court said were required under this precedent in PGVA. [00:00:40] Speaker 02: This is the latest in a line of cases of the Court of Federal Claims that has decided that there is somehow an exception to the standards for relief under 1491B and under PGVA, specifically in the context of stay override decisions. [00:00:54] Speaker 02: That exception has no basis in the statutory text or in the rationale that this court applied in PGPA. [00:01:01] Speaker 02: And we ask the court reverse for that reason. [00:01:03] Speaker 04: Please, go ahead. [00:01:04] Speaker 04: You say reverse. [00:01:05] Speaker 04: Can I start with you there? [00:01:07] Speaker 04: Because there are some tricky issues in this case, and I hope our disposition is not a tricky one. [00:01:12] Speaker 04: In your opening brief, you say if we exercise jurisdiction, we should reverse. [00:01:16] Speaker 04: But in your reply brief, you say we should affirm, assuming we don't just dismiss, assuming we agreed with you that we actually have a case here. [00:01:24] Speaker 04: Wouldn't it be an affirm, because there's nothing for us left to reverse or to change? [00:01:31] Speaker 02: It should be a reverse. [00:01:32] Speaker 02: That may have been a typo in the reply brief. [00:01:34] Speaker 02: We're relying on the disposition that this court applied in the NECA Technologies case, which had a similar posture of mootness because of the expiration of the voluntary stand. [00:01:42] Speaker 03: Well, then wouldn't it be a vacate rather than a reverse? [00:01:46] Speaker 02: It could be. [00:01:46] Speaker 02: I believe what the court did in NECA Technologies, if I recall, was- You don't want it to reverse, do you? [00:01:52] Speaker 02: I'm just trying to go off my memory of NECA technologies. [00:01:55] Speaker 02: I believe it was a reverse without remand. [00:01:57] Speaker 02: But vacator, I think, is an equally appropriate remedy here. [00:02:02] Speaker 02: The point is that a ruling that holds that it was improper for the trial court not to consider the injunctive relief factors, and in some manner vacating that judgment. [00:02:10] Speaker 02: But we recognize, because of the mootness issue, that there's no need for further proceedings at the trial court at this point. [00:02:16] Speaker 04: Thank you. [00:02:18] Speaker 02: So let me proceed to address mootness, because we recognize that it is obviously a threshold jurisdictional issue this court will have to resolve before proceeding to the merits here. [00:02:27] Speaker 02: We acknowledge that this issue is moot. [00:02:29] Speaker 02: The voluntary stay expired more than a year ago. [00:02:32] Speaker 02: We're relying on the capable repetition yet evading review exception to mootness. [00:02:39] Speaker 02: Now, we believe that NICOTEX resolves the evading review question. [00:02:43] Speaker 02: It addressed a very similar circumstance where there was simply a legal question as to the appropriate standard to evaluate a state override decision. [00:02:52] Speaker 02: NECOTEX acknowledges a limited time period available for that review. [00:02:56] Speaker 03: The issue you've brought to us for resolution is a big issue that could affect many different kinds of cases. [00:03:02] Speaker 03: Is this muteness question and the capable of repetition standard [00:03:07] Speaker 03: tempered such that it is only accurate, or only appropriate to use it, if it is likely to reoccur with regard to this particular litigant, as opposed to this is a big question that needs to get answered and may affect lots of litigants. [00:03:22] Speaker 02: So I would acknowledge there is some ambiguity in this court's precedence on that question. [00:03:26] Speaker 03: I think in the knee contact... But this is not just an issue for our court, right? [00:03:31] Speaker 02: Right. [00:03:31] Speaker 03: There are lots of courts that have confronted this, so why don't you just tell me what you think the standard of [00:03:37] Speaker 02: So as we understand the relevant Supreme Court precedent, primarily Kingdom Ware in the context of bid protests especially, it's that there has to be some showing of a likelihood of recurrence between the two named parties. [00:03:48] Speaker 02: That is how we understand the Supreme Court's standard that they applied in the Kingdom Ware decision. [00:03:53] Speaker 03: And okay, if that is the applicable standard, it has to be between these parties, which by the way, thank you, because that's right. [00:04:01] Speaker 03: Your case would be better served if you could argue the other standard, but I appreciate the honesty. [00:04:06] Speaker 03: But so what is it about this scenario you think likely to repeat with this particular party? [00:04:13] Speaker 03: And I think there's just one piece of confidential information, which is like the number of possible ongoing contracts that may exist to avoid that one thing. [00:04:21] Speaker 02: Right. [00:04:21] Speaker 02: So there is a little bit of confidential information here. [00:04:23] Speaker 03: I don't even know why that's confidential. [00:04:26] Speaker 02: Go ahead. [00:04:27] Speaker 02: There are national security concerns that were communicated to us by GSA and by HHS about some of the specifics of the strategic stockpile that we were instructed to remain confidential. [00:04:37] Speaker 02: And I'll answer to the extent I can without revealing that. [00:04:40] Speaker 02: What I will do first, though, is reference some of the appendix material. [00:04:44] Speaker 02: I think the determination and findings has in redaction some of this conversation as well. [00:04:49] Speaker 02: That's basically appendix 244 through 251. [00:04:52] Speaker 02: So that's what I'm relying on if the court wants to refer to that later on. [00:04:56] Speaker 02: But the fact that LSL will be a bidder on all of these contracts, including this particular one, I don't think is reasonably disputed. [00:05:05] Speaker 02: There are a very limited number of contractors capable of performing. [00:05:10] Speaker 02: It's a contract that the government has maintained for decades and will maintain for the indefinite future. [00:05:15] Speaker 02: The statutory authority is permanent. [00:05:18] Speaker 02: So the fact that there will be ongoing procurements for these sites and that LSL will be bidding on those contracts, I don't think can reasonably be disputed. [00:05:26] Speaker 02: LSL has also protested virtually every single contract they do not receive, especially in this case. [00:05:31] Speaker 02: And I think it could be appropriate if the court wants to narrow its capable of repetition analysis to this particular procurement because of the unique facts here. [00:05:40] Speaker 02: We have a site that is designed to serve kind of the mid-Atlantic major metropolitan areas, Washington, Baltimore, Philadelphia, New York City, and the surrounding regions. [00:05:49] Speaker 02: And that site was the subject of the procurement that was the subject of these protests that LSL bid on, that LSL protested numerous times. [00:05:58] Speaker 02: That procurement for a permanent site is still ongoing. [00:06:01] Speaker 02: As we mentioned, the Key Bridge collapse in March of 2024 sort of changed the landscape. [00:06:07] Speaker 02: BWI was the airport that was designated to be the centralized airport logistics hub for this site. [00:06:14] Speaker 02: Obviously, the government needs to reconsider that without the Key Bridge being present as the transportation corridor. [00:06:19] Speaker 02: So this particular procurement for a permanent repository for this region is still an ongoing effort. [00:06:29] Speaker 02: LSL will be bidding on that. [00:06:30] Speaker 02: I don't think they would even dispute that. [00:06:32] Speaker 02: And based upon their history, if they don't get the contract, they will protest that. [00:06:36] Speaker 02: That has been their consistent behavior. [00:06:38] Speaker 02: And it's a reasonable posture. [00:06:39] Speaker 02: These are very long-term contracts. [00:06:41] Speaker 02: They're at least 10 years. [00:06:42] Speaker 02: They're very high value. [00:06:43] Speaker 02: There's perfectly good reason for contractors to want to protest and ensure that they're maximizing their chances of getting the contract Okay, can I get you one of the merits? [00:06:52] Speaker 03: Yes, there's something else you if you something else You really feel like you need to say do it, but let's just get to the merit. [00:06:56] Speaker 02: That's fine No, I think that that covers our position on the mootness issue. [00:07:00] Speaker 02: So when it comes to the merits [00:07:03] Speaker 02: our view is that PGBA and RAM Core in combination resolve this issue. [00:07:07] Speaker 02: So I'll walk through. [00:07:09] Speaker 03: Let me put PGBA aside for a second. [00:07:11] Speaker 02: Sure. [00:07:11] Speaker 03: Let's pretend it does not exist. [00:07:13] Speaker 02: OK. [00:07:13] Speaker 03: OK. [00:07:14] Speaker 03: So the textualist in me looks at Zika and says, all right, Congress thoughtfully balanced the circumstances in which the government can go forward and in which there needs to be a stay of the process. [00:07:29] Speaker 03: Because you've got 3AI. [00:07:31] Speaker 03: The contracting officer may not authorize performance of the contract to begin while the protest is pending. [00:07:37] Speaker 03: So if there's a protest, the default is you can't go forward, right? [00:07:41] Speaker 03: And then Congress created an exception that is permissible. [00:07:46] Speaker 03: The permissible exception is if the government makes a written finding of either best interest or urgent and compelling. [00:07:52] Speaker 03: Two different things the government could do. [00:07:56] Speaker 03: Why shouldn't that define the universe of exceptions, since Congress created a general rule [00:08:01] Speaker 03: And two, not one, two exceptions, both of which are, by the way, pretty liberal. [00:08:06] Speaker 03: And a lot of deference would be given to the government in making that assessment. [00:08:09] Speaker 03: And arbitrary capricious is a high standard. [00:08:12] Speaker 03: And so why shouldn't that be the universe? [00:08:15] Speaker 03: And so if the government fails to establish best interests or urgent and compelling, why don't we revert to the default? [00:08:22] Speaker 03: Because the statute clearly lays out a default, which is can't perform. [00:08:26] Speaker 02: It does. [00:08:29] Speaker 02: The mistake that some of the decisions in the Court of Federal Claims have made is conflating these two administrative actions. [00:08:34] Speaker 03: I don't care about the Court of Federal Claims. [00:08:36] Speaker 03: They're not relevant to me. [00:08:37] Speaker 03: And I also don't care right now for this hypothetical purpose about this prior case of ours. [00:08:42] Speaker 03: I just want to figure out what the right answer is for the statutory interpretation. [00:08:48] Speaker 03: And then we can talk about whether or not the other case is binding on us so that I can't get to the possibly right answer. [00:08:54] Speaker 02: So blank slate. [00:08:55] Speaker 02: Here's how we understand the statute. [00:08:58] Speaker 02: Procurement authority for the agency and all the various procurement authorities that exist. [00:09:02] Speaker 02: And the agency makes a decision under that authority to execute a contract. [00:09:06] Speaker 02: What CEQA provides in 3553 is, if that agency action to execute a contract or make some decision in connection with that procurement, if that is challenged at GAO through a bid protest, [00:09:17] Speaker 02: 3553 imposes an automatic stay of 100 days to allow review of that decision. [00:09:23] Speaker 02: So we have an agency decision, conduct something related to a procurement, and then we have a review provision, which is review that automatic stay, go to GAO. [00:09:33] Speaker 02: Then we have an independent agency authorization for a separate decision, which is what should we do about that automatic stay? [00:09:41] Speaker 02: Should it be overridden or not? [00:09:43] Speaker 02: And that's authority that's granted under 3553C2. [00:09:46] Speaker 02: And the agency can, as your honor pointed out, exercise that authority under a fairly liberal standard to either override or not override the automatic state. [00:09:56] Speaker 02: There is no review provision of the override decision in SICA. [00:10:01] Speaker 02: This is what the court was grappling with in RamCorp. [00:10:04] Speaker 02: There is nothing that permits review by the courts or otherwise of that second agency action under 3553. [00:10:14] Speaker 02: What this court explained in Rancor was that the court could find a pathway to judicial review through 1491b1, because it is a decision in connection with procurement, as this court has held numerous times. [00:10:26] Speaker 02: And we don't dispute any of that. [00:10:28] Speaker 02: But the point is that you need to distinguish between [00:10:31] Speaker 02: The first agency action related to the procurement and the review provision that provides the automatic stay and the GAO review, that's one category. [00:10:38] Speaker 03: I guess I'm not understanding how I have to distinguish between them. [00:10:41] Speaker 03: There is a default rule and then there is an exception to the default rule, which is the override provision. [00:10:46] Speaker 03: I see them as intertwined. [00:10:49] Speaker 03: I see Congress in a single section saying, you stay it, [00:10:53] Speaker 03: But the government can override the stay in these circumstances. [00:10:56] Speaker 03: We both now agree that whole thing is reviewable. [00:10:58] Speaker 03: So why do we add in the equitable factors associated with PI so that, I mean, under the circumstances you're proposing, it's possible for the government to override in a completely nefarious, completely frivolous manner, right? [00:11:16] Speaker 03: The stay would not go back into place under 3A little i under that logic unless the person who demonstrates the government has a completely nefarious, completely frivolous override argument on compelling or best interest or whatever. [00:11:33] Speaker 03: unless that person can also prove all these equitable factors in their favor. [00:11:37] Speaker 03: Why? [00:11:38] Speaker 03: Congress said default is you can't go forward unless you government can prove one of these two things. [00:11:42] Speaker 02: And Your Honor, the statutory language we're relying on is the fact that Congress did not provide for judicial review of the stay override, period. [00:11:49] Speaker 02: There is no judicial review of the stay override in CECA. [00:11:53] Speaker 03: But that doesn't make sense, because if under 1491, if we can review [00:11:58] Speaker 03: A, we can review C. I mean, there's no reason why that makes no sense. [00:12:02] Speaker 02: No, of course. [00:12:03] Speaker 02: And we're not saying it's not reviewable. [00:12:05] Speaker 02: We're saying it must be reviewable under the authority Congress provided in 1491B. [00:12:10] Speaker 02: There is no other way the stay override can be reviewable. [00:12:14] Speaker 02: There's no other statutory text that provides for judicial review. [00:12:17] Speaker 01: But if it is reviewable, sorry to interrupt, but if it is reviewable under essentially APA principles, [00:12:23] Speaker 01: What about those principles brings in the necessity of the injunctive relief factors as opposed to declaratory relief? [00:12:30] Speaker 01: It's a separate thing, declaratory relief. [00:12:33] Speaker 02: Yes. [00:12:33] Speaker 02: And then our position is... You got to answer this question like I did. [00:12:36] Speaker 02: Yes. [00:12:37] Speaker 02: Yes. [00:12:37] Speaker 02: We have to look to 1491b1, and we have to look at the text of 1491b1. [00:12:42] Speaker 02: And I will refer to PGVA not to say it's binding, but simply because it did that analysis, and we find it persuasive, even if the court's looking at this on a blank slate. [00:12:49] Speaker 02: is there was a distinction between the adoption of the APA standard for the legal sufficiency review, which adopts the typical APA test arbitrary capricious contrary to law. [00:12:59] Speaker 02: But there was a change in 1491 B, which is whereas the APA says shall set aside in 1491 B. [00:13:07] Speaker 02: Congress said that the Court of Federal Clients may provide declaratory or injunctive relief, and also under subsection three, that it must provide due regard to the needs of national security. [00:13:18] Speaker 02: And so what this court said in PGBA is that that means that the remedy is more discretionary than it is under a typical APA case. [00:13:26] Speaker 01: And in PGBA, just to be clear, PGBA did not require an injunction, did it? [00:13:34] Speaker 01: In that case, the court affirmed the granting of an injunction. [00:13:37] Speaker 01: The courts referred to the denial of an injunction. [00:13:40] Speaker 01: Denial of an injunction. [00:13:41] Speaker 01: But it didn't say, in these cases, the court must issue injunctive relief as distinguished from declaratory relief. [00:13:49] Speaker 02: No, but the court did address the argument as to the functional difference between declaratory and injunctive relief. [00:13:54] Speaker 01: And there's language in there, arguably dictum, maybe not, that you're relying on that talks about when a declaration is coercive, basically you have to go through those factors. [00:14:04] Speaker 01: Right. [00:14:04] Speaker 02: And to the extent the court may see that as dicta, it is citing Supreme Court precedent on that point. [00:14:08] Speaker 02: So we think it would be binding in that respect anyway. [00:14:10] Speaker 02: But yes, the analysis, again, even if the court doesn't want to just default to PGBA, we still think the textual analysis of 1491B is both correct and persuasive. [00:14:20] Speaker 04: Is it, in this context, is it possible for the protester to seek relief that is not coercive? [00:14:30] Speaker 04: That is, I know a lot of ink is spilled on, is it declaratory relief, is it injunctive relief, but it really seems to come down to whether or not it's coercive. [00:14:37] Speaker 04: In the government's view, is it possible for the protester to win something at the Court of Federal Claims that is not so coercive as to trigger the four factors? [00:14:47] Speaker 02: So I'll answer that two ways. [00:14:49] Speaker 02: First, monetary relief is always available. [00:14:51] Speaker 02: That may or may not be sufficient in the protester's eyes, but that is a remedy that is always available for bid preparation. [00:14:55] Speaker 04: And the four factors would not apply to that? [00:14:57] Speaker 02: They would not apply. [00:14:58] Speaker 02: That is correct. [00:14:59] Speaker 02: In terms of a stay override review, [00:15:02] Speaker 02: I would think as a practical matter, in order to get relief that is meaningful to the protester, it would have to, as this court did, invalidate or set aside the stay over ride decision. [00:15:12] Speaker 02: Otherwise, there's no practical benefit. [00:15:14] Speaker 04: So we should understand at the end of the day, the government's view is that the four factors always apply in this context, regardless of whether we call it declaratory relief. [00:15:23] Speaker 02: just because of the practical nature of the relief that's being requested. [00:15:26] Speaker 03: But can I ask a question? [00:15:28] Speaker 03: I'm backing up to your 1491 analysis, which are you saying there's more discretion between declaratory [00:15:39] Speaker 03: and injunctive relief. [00:15:41] Speaker 03: What do you, I'm trying to understand what you're saying about this. [00:15:44] Speaker 02: No, our understanding, and I see that I'm into my little time. [00:15:48] Speaker 02: No, no, just keep going. [00:15:49] Speaker 02: My understanding is informed by the citation of Samuel V. Mackel of the Supreme Court in PGBA, which is that the difference between declaratory and injunctive relief is more functional than nominative. [00:16:00] Speaker 02: And the question is simply, what is the practical effect of the relief being requested? [00:16:04] Speaker 02: If it is asking to set aside a government action, it needs injunction analysis, whether it's being styled as declaratory or injunctive relief. [00:16:12] Speaker 02: And so even though, yes, the statute authorizes both, in determining whether the injunctive relief factors need to be considered, the Supreme Court has instructed that you need to look at the practical effect of the relief. [00:16:24] Speaker 03: OK, right. [00:16:25] Speaker 03: Weather's a coercive DJ. [00:16:27] Speaker 03: I get it. [00:16:27] Speaker 03: But do you think 1491 creates some discretionary distinction between injunctive relief on the one hand and declaratory judgment relief on the other in terms of the amount of discretion? [00:16:43] Speaker 03: Based on what you just said, I feel like you want it both ways. [00:16:47] Speaker 03: You want me to say 1491 creates a different amount of discretion [00:16:53] Speaker 03: that the trial court has for injunctive relief versus DJs. [00:16:57] Speaker 03: But then you want to, on the flip side, say, but I should treat any coercive DJ as injunctive relief for purposes of the PI factors. [00:17:03] Speaker 03: Do you see the problem I'm having? [00:17:05] Speaker 03: I feel like your arguments are at war with each other. [00:17:07] Speaker 02: And I don't think that's the argument we're making. [00:17:09] Speaker 02: So let me see if I can clarify it. [00:17:11] Speaker 02: The point that we're making is that we read 1491b. [00:17:15] Speaker 02: as providing discretion to the trial court in granting either declaratory or injunctive relief, that it has discretion to impose either form of relief based upon its consideration, the merits, and the appropriate remedy. [00:17:33] Speaker 02: When considering whether there is a material difference in how that discretion is to be exercised between declaratory and injunctive relief, we're relying on Supreme Court presidents saying [00:17:42] Speaker 02: you look to the practical effects of the relief, not the name that it's styled under. [00:17:47] Speaker 02: That's the point. [00:17:47] Speaker 04: Thank you. [00:17:48] Speaker 04: One more, if you don't mind. [00:17:50] Speaker 04: Just on the textual language of CICA itself, the provisions you were talking with the chief about, is it the government's view that CICA is silent on the question? [00:17:59] Speaker 04: We have to decide whether the four factors apply or not? [00:18:02] Speaker 04: Yes, they are. [00:18:03] Speaker 04: Why is there not an implication, at least, against you [00:18:06] Speaker 04: from the ease with which the stay is imposed, it's automatic. [00:18:12] Speaker 04: Why doesn't that at least imply that there's not a great deal that should have to be shown by the protester at our stage? [00:18:20] Speaker 02: So our view of the statutory text under CICA itself, if you just take that in isolation, is that the most meaningful part is Congress did not provide judicial review for a stay override at all. [00:18:30] Speaker 02: And so our view is that to the extent the court reads anything into the meaning of SICA in isolation, the only result the court could find is that there is no judicial review. [00:18:40] Speaker 02: Now, we're not arguing that. [00:18:41] Speaker 02: We recognize Ram Court. [00:18:41] Speaker 02: We recognize 1491B. [00:18:43] Speaker 02: We recognize in connection with procurement. [00:18:46] Speaker 02: That's all settled. [00:18:46] Speaker 02: We're not making that argument. [00:18:47] Speaker 02: But if the court is trying to glean anything from the narrow text. [00:18:51] Speaker 03: I really don't understand this argument. [00:18:52] Speaker 03: This argument makes no sense to me. [00:18:56] Speaker 03: I don't understand your argument. [00:18:58] Speaker 03: We both agree there is judicial review of all of these actions under 1491. [00:19:02] Speaker 03: So why does the fact that the CECA statute, which already had 1491 in existence and Congress legislates with the knowledge of its prior work, [00:19:13] Speaker 03: Why is the fact that they didn't add double down, and just in case you're curious, not only does 1491 give you review authority, but let's put it right here in Zika. [00:19:21] Speaker 03: Why does that matter? [00:19:22] Speaker 03: Congress legislated this statute under the existing framework of there is judicial review of all of these actions. [00:19:31] Speaker 03: So why did Congress need to say there's judicial review in order for that to tell me anything about whether the PI factors need to be in there? [00:19:37] Speaker 02: Because the only part of SICA that addresses an automatic stay comes before an override is even in consideration. [00:19:44] Speaker 02: It has to necessarily. [00:19:45] Speaker 03: In the same section! [00:19:46] Speaker 03: There's a rule and an exception laid out in a single section. [00:19:50] Speaker 03: I mean, there's like 40 words between the two. [00:19:52] Speaker 02: But just chronologically, the agency [00:19:56] Speaker 02: isn't even in a position to issue a stay override until the state comes into effect. [00:20:00] Speaker 02: And then it evaluates the impacts of that stay. [00:20:02] Speaker 02: There's nothing unreasonable about Congress harmonizing the language of 3553 with 1491 B to say, okay, we have a procurement decision. [00:20:11] Speaker 02: That's protested GAO. [00:20:12] Speaker 02: You get an automatic stay. [00:20:13] Speaker 02: But we're giving the agency authority to override that if certain conditions are met. [00:20:19] Speaker 02: Then what do we do after that override? [00:20:21] Speaker 02: We go to 1491B to say you can challenge that at the Court of Federal Claims, but the remedy, the relief you can obtain, is the relief provided in 1491B. [00:20:30] Speaker 02: Again, that's RAMCOR. [00:20:31] Speaker 02: I'm not inventing that. [00:20:32] Speaker 02: That's how this court elaborated on the relationship between CICA and 1491B and RAMCOR. [00:20:37] Speaker 04: As part of what you're saying, the ground has shifted by the time we get to the Court of Federal Claims. [00:20:42] Speaker 04: The government agency has made a new determination that was not in place at the time the automatic stay was imposed. [00:20:48] Speaker 02: That is exactly right, Your Honor. [00:20:49] Speaker 02: There are additional considerations. [00:20:51] Speaker 02: There are additional factors. [00:20:52] Speaker 02: And again, these are statutorily authorized, but they're things the agency would not have had reason or need to evaluate before the stay is imposed. [00:21:00] Speaker 02: It's a new agency decision with a new review. [00:21:02] Speaker 03: We're talking about 100-day stay, right? [00:21:05] Speaker 03: A hundred day stay? [00:21:06] Speaker 02: Yes, sir. [00:21:06] Speaker 03: That's what this whole fight's over. [00:21:07] Speaker 02: Yes, sir. [00:21:08] Speaker 03: And so Congress said the default is there should be a stay for just that hundred days, but the government can override it if there's these like big factors. [00:21:16] Speaker 03: And you're saying even if there are no big factors, we get our hundred days. [00:21:20] Speaker 03: Unless they can prove equity. [00:21:21] Speaker 02: No, Your Honor. [00:21:22] Speaker 02: I think we are relying on the presumption that the government will exercise its authority as required under statute. [00:21:27] Speaker 03: No, but if we say it's arbitrary and capricious, if we conclude that the government's assertion of best interest was arbitrary and capricious, which is such a high standard. [00:21:35] Speaker 03: I mean, honestly, the government has to almost be nefarious to end up in that land, right? [00:21:39] Speaker 03: So we're talking about a tiny universe of cases in which the government almost nefariously decides something's in its best interest when it's just so clearly not. [00:21:48] Speaker 02: Well, I think this case provides a good counterexample. [00:21:50] Speaker 02: The court did not say that the government didn't have good reasons for the override. [00:21:53] Speaker 02: What the court said is the government didn't adequately document its reasons, which essentially turned this into a paper exercise. [00:21:58] Speaker 02: And there were ample national security considerations at issue. [00:22:01] Speaker 03: That's not the issue. [00:22:02] Speaker 02: I understand, but I want to be clear. [00:22:03] Speaker 03: But if that were an issue in front of me, I probably would tell you I don't think that that met the arbitrary and capricious standards. [00:22:09] Speaker 02: I appreciate that. [00:22:09] Speaker 02: I just want to make clear that we're getting adverse decisions not simply because there is an obvious arbitrariness, but we're getting adverse decisions in much broader sets of cases, which is why we're bringing this to the court's attention. [00:22:20] Speaker 03: OK. [00:22:21] Speaker 03: We probably ought to let the other side have a shot at this. [00:22:25] Speaker 03: Thank you. [00:22:26] Speaker 03: And I'll restore your whole three minutes of rebuttal, which I'm sure you're really excited about, Mr. Hayes. [00:22:32] Speaker 00: Good morning. [00:22:32] Speaker 00: Thank you, Your Honors, and may it please the Court. [00:22:34] Speaker 00: Daniel Hay for the Appellee Life Science Logistics. [00:22:37] Speaker 00: I want to begin with the important legal question that Chief Judge Moore, you raised about what the recurrent situation looks like. [00:22:43] Speaker 00: As all agree, it has to be a dispute between these same parties. [00:22:46] Speaker 00: And the government's capable repetition argument can't escape a simple fact. [00:22:50] Speaker 00: LSL has been a contractor for the C.J. [00:22:52] Speaker 00: National Stockpile for 18 years. [00:22:54] Speaker 00: In that time, [00:22:55] Speaker 00: It has been subject to one CECA state override, the one in this case. [00:22:59] Speaker 00: In the two years since the decision was issued, it has not been subject to the same action. [00:23:03] Speaker 00: And in fact, as far as the government tells us, no contractor in the history of the SNS has ever been subject to an override here. [00:23:11] Speaker 00: Put simply, the government cannot carry its heavy burden to show that something that never happened before. [00:23:16] Speaker 04: Hasn't happened three times in this very case? [00:23:18] Speaker 00: No, it only happened the third time. [00:23:20] Speaker 00: There were three protests each time the determination was made that there was some error in the procurement, but only in the third try did GSA override the stay. [00:23:30] Speaker 00: And there's an important structural reason why this doesn't happen in the SNS context. [00:23:35] Speaker 00: Typically, these contracts are done well in advance of the end of the contract. [00:23:39] Speaker 00: If the government is coming up on a situation that there'll be a lapse, it has many options at its disposal. [00:23:45] Speaker 00: issue a bridge contract, it can exercise options, it can sole source a short-term procurement, it can do something to make sure there's no lapse in coverage. [00:23:52] Speaker 04: Do you dispute that your client will certainly bid on this if it was, if we reopen the solicitation for this particular facility? [00:24:02] Speaker 00: I don't think I can say certainly, but I think it's a fair assumption that if the specification come out and their facility is qualified for it and it makes sense financially, I think there is the expectation they will bid. [00:24:12] Speaker 00: But there are a lot of contingencies that are still there. [00:24:14] Speaker 00: One would be, if there is a award, does it go to LSL? [00:24:18] Speaker 00: Second is, if it doesn't go to LSL, does LSL protest? [00:24:21] Speaker 00: And does it go to GAO or the Court of Federal Claims? [00:24:25] Speaker 00: There's a lot of questions that will rise. [00:24:27] Speaker 00: And the court addressed all these in Safeguard. [00:24:30] Speaker 00: I know Safeguard is unpublished. [00:24:31] Speaker 00: but addresses the exact same legal question, and found there is no jurisdiction for factual reasons all present here. [00:24:37] Speaker 03: I'm sure you're not going to like this, but can you just move on to the merits, please? [00:24:41] Speaker 00: Happily, Your Honor. [00:24:43] Speaker 00: So on the merits, I want to start with [00:24:47] Speaker 00: Yeah, I agree with where my friend focused, which is that 1491B answers the question. [00:24:52] Speaker 00: I think in particular, 1491B2 answers the question, where Congress said that the court of federal claims may issue any relief appropriate, including declaratory and injunctive relief. [00:25:02] Speaker 00: The government's position reads declaratory out of that provision. [00:25:06] Speaker 00: They try and address that by inventing this Frankenstein remedy, where you can issue a declaratory judgment that is based on injunctive relief factors. [00:25:14] Speaker 00: But that is not what this court required in PGBA. [00:25:17] Speaker 03: Well, but I mean, the Supreme Court has indicated that you have to look at the character or nature of what is being done. [00:25:25] Speaker 03: And so I think that this coercive declaratory judgment concept is not fictitious. [00:25:31] Speaker 00: Oh, certainly, your honor. [00:25:32] Speaker 00: And so let me start by addressing PGBA. [00:25:34] Speaker 00: And I know Sam was mentioning that also is illustrative here. [00:25:37] Speaker 00: In PGBA, the only question presented- I think he said binding. [00:25:40] Speaker 03: Go ahead. [00:25:41] Speaker 03: Sorry? [00:25:41] Speaker 03: I think he said binding, not illustrative. [00:25:44] Speaker 00: Yes, both binding and illustrative. [00:25:46] Speaker 00: But it's illustrative of our position here, which is in PGBA, the only question presented [00:25:50] Speaker 00: was whether the trial court erred by determining that the relief being sought was injunctive. [00:25:56] Speaker 00: The governments disclaim that argument here. [00:25:57] Speaker 00: They say we don't dispute that the Court of Federal Claims issued a declaratory judgment, that it has the discretion to do so, or that it abused its discretion. [00:26:06] Speaker 00: Rather, it says that in issuing declaratory judgment, it had to consider the four-factor eBay standard. [00:26:12] Speaker 00: But that is not what PGBA said at all. [00:26:14] Speaker 00: PGBA does not address, change, heighten, or even discuss the standard for declaratory relief. [00:26:20] Speaker 00: All it stands for is the unremarkable proposition that where a party seeks an injunction, it has to meet the injunction relief factors. [00:26:27] Speaker 00: And the facts of PGBA demonstrate why the case is different. [00:26:31] Speaker 00: There, the protest had been overruled. [00:26:34] Speaker 00: The contract was being performed. [00:26:35] Speaker 00: There was no statute that set this background principle of there being a stay for a period of time. [00:26:40] Speaker 00: The declaratory judgment on its own would have done nothing for the plaintiff there. [00:26:44] Speaker 00: And the way we know that is that the trial court found that there was an abuse of discretion, that there was an error in the awarding of the contract. [00:26:52] Speaker 03: So to be clear, in one distinction you're drawing with PGBA, I just want to reframe it to make sure I'm understanding it, is that it wasn't in the context of CECA where the statute addressed there should be a stay and then the statute create an exception for a stay. [00:27:07] Speaker 03: You're saying PGBA was divorced from this contractual, I'm sorry, congressional decision about how this ought to operate. [00:27:18] Speaker 00: That's exactly right, Your Honor. [00:27:19] Speaker 00: And there, the relief being sought was twofold. [00:27:23] Speaker 00: The plaintiff wanted a declaration that the award was illegal, and an order unwinding the contract requiring new procurement. [00:27:30] Speaker 00: We didn't seek that here. [00:27:31] Speaker 00: We didn't obtain it. [00:27:32] Speaker 00: And the reason why is that CECA reset automatically the status quo. [00:27:36] Speaker 00: A arbitrary and capricious override is void ab initio. [00:27:40] Speaker 00: There was no need to compel the agency or prohibit the agency from doing anything. [00:27:44] Speaker 00: And in fact, Judge Sommers was clear. [00:27:47] Speaker 00: The government is free to ignore my order. [00:27:49] Speaker 00: It's free to issue a new DNF. [00:27:50] Speaker 00: It can issue the same DNF. [00:27:52] Speaker 00: And you can come back to me. [00:27:53] Speaker 00: Had that happened, we would have to go back to the court and seek different and additional relief. [00:27:57] Speaker 03: You would have to seek a P.I. [00:27:58] Speaker 03: and then you would have had to meet the equitable. [00:28:00] Speaker 00: Exactly. [00:28:00] Speaker 00: But we could not have gone back and sought to compel the order, to enforce the order. [00:28:04] Speaker 00: It would not be enforced by contempt. [00:28:06] Speaker 00: What Judge Sommer said is he was answering a simple yes or no question in the affirmative. [00:28:10] Speaker 00: That was all that was needed in this case because of the background. [00:28:14] Speaker 00: The Samuel's case that government counsel mentioned is also helpful here. [00:28:19] Speaker 00: That case also was not about the difference between [00:28:21] Speaker 00: That case also did not address the standards for issuing a declaratory judgment. [00:28:25] Speaker 00: That was a case where a defendant in a state criminal action saw a declaratory judgment at the prosecution filing the First Amendment. [00:28:33] Speaker 00: And what the Supreme Court said is the same comity principles in Younger that says courts can't enjoin state prosecutions also applies to the declaratory judgment context because that would [00:28:43] Speaker 00: the res judicata of that decoratory judgment would have the same result of stopping it. [00:28:48] Speaker 00: So it wasn't about the difference between decoratory judgment and equitable relief. [00:28:52] Speaker 00: It was about these background comity principles of deferring to state management of its own law. [00:28:58] Speaker 04: I'm a little confused on how this is not coercive. [00:29:03] Speaker 04: The action of court federal claims here had the effect of declaring rights. [00:29:09] Speaker 04: And I think the government had no choice but to act consistent with what the court declared at that point. [00:29:17] Speaker 04: And if so, that meant they could not go forward and implement the contract with the party they wanted to, notwithstanding their finding that it was in the interests of the United States for compelling and urgent reasons. [00:29:29] Speaker 04: That feels coercive to me. [00:29:30] Speaker 04: What am I missing? [00:29:31] Speaker 00: So I think two points, Your Honor. [00:29:33] Speaker 00: First is that to the extent there was any coercion, it was coming from the statute, not from the order. [00:29:37] Speaker 00: That the statute says there shall be no activity on the procurement. [00:29:40] Speaker 04: But can you help me on that? [00:29:42] Speaker 04: Because the statute has two parts that we've talked about. [00:29:45] Speaker 04: Part one was sure you get to stay based on just a protest. [00:29:49] Speaker 04: But part two was they get to override the stay based on certain findings that they clearly made here. [00:29:54] Speaker 00: Certainly, but those fines are arbitrary and capricious. [00:29:57] Speaker 00: And a arbitrary and capricious decision is of no legal effect. [00:30:00] Speaker 00: And so by declaring it to have been arbitrary and capricious, that wipes it out. [00:30:04] Speaker 00: But the second point is the government was free to ignore the ruling. [00:30:07] Speaker 00: Judge Summer said that at Appendix 111. [00:30:10] Speaker 00: And to take us to another context from the contracting, another example from the contracting standpoint, [00:30:15] Speaker 00: you know, if we had come and we were on a supply contract and we said we wanted the court to judge our widgets conform to the specifications of the contract, and the court of federal claims granted that, the government could still reject delivery of the goods. [00:30:26] Speaker 00: They could say, we don't think this complies. [00:30:29] Speaker 00: We would have a very easy breach of contract case because we have a ruling from the court of federal claims they do. [00:30:34] Speaker 00: But there was nothing compelling the government in that situation to accept delivery of the goods. [00:30:39] Speaker 00: Similarly here, there was nothing compelling the government to respect the order. [00:30:44] Speaker 00: Again, had they [00:30:45] Speaker 00: ignored the order, we would have gone back to the Court of Federal Acclaims. [00:30:48] Speaker 00: We'd have to file a new case as the colloquy at the end of the hearing identifies. [00:30:54] Speaker 00: It would have gone back to Judge Summers. [00:30:55] Speaker 00: I think it would have been a very quick ruling, to be frank, but it would have nonetheless been a new action seeking new relief. [00:31:03] Speaker 03: And PGBA, couldn't the government have ignored the order too? [00:31:08] Speaker 00: Which order? [00:31:09] Speaker 03: The order... The order setting aside the contract at work. [00:31:14] Speaker 00: So there was no order setting aside the contract award. [00:31:16] Speaker 00: There was a request for instructions they would have to stop performance, issue a new round of procurement. [00:31:23] Speaker 00: And so what the court there found is the relief you're asking me to provide is injunctive, because you're asking me to compel the government to do some things and enjoin them from doing some things. [00:31:34] Speaker 00: So I think there, again, the government could have [00:31:38] Speaker 00: ignored it had that order been issued, but they would have been in contempt had that injunction been issued. [00:31:43] Speaker 00: So I think it's a different context when all you have is a decoratory judgment, particularly where the judge who's issuing is saying, if the government disagrees with me, they are free to ignore. [00:31:51] Speaker 03: So you don't think in PGBA that what they did was simply set aside the contract award in the same way the CFC set aside the override decision here? [00:32:01] Speaker 00: So in PGBA, the plaintiff lost there. [00:32:07] Speaker 00: So are you saying if they had won below, would that have been the same thing? [00:32:13] Speaker 03: I guess, yeah. [00:32:14] Speaker 00: So in that situation, I don't think so, because the contract was being performed. [00:32:18] Speaker 00: There was no statute saying they cannot perform it in that instance the way there is here, that once you wipe out the override, because it's arbitrary and capricious, there is a statute saying you cannot perform this contract absent a valid override. [00:32:30] Speaker 00: In the PGVA context, simply declaring the decision to be illegal or the award to have been improper would not provide any relief. [00:32:39] Speaker 00: And the way we know that is the court found the award [00:32:42] Speaker 00: was improper. [00:32:43] Speaker 00: It granted the bid preparation cost. [00:32:46] Speaker 03: Can I ask, the government attorney, though this is not really before us, did bring up the point that the overrides are being found to be arbitrary and capricious with some frequency, or at least there's a significant number of fights over this? [00:33:01] Speaker 03: Is that true that you know of? [00:33:04] Speaker 00: I wouldn't say with some frequency. [00:33:05] Speaker 00: I think we cited about 12 to 15 cases since 2005 with Chapman, which is a seminal case in this context. [00:33:12] Speaker 00: These are issued quickly, so there may be additional minute orders that I'm not familiar with. [00:33:16] Speaker 00: But it's not happening with any great frequency. [00:33:18] Speaker 00: And it's certainly not happening in the context of the strategic national stockpile. [00:33:21] Speaker 00: This is a one of one that has not happened before. [00:33:24] Speaker 00: It's unlikely to happen again absent the government taking some arbitrary action where they manufacture the crisis, the emergency that leads to the override. [00:33:34] Speaker 03: But what was, can you remind me, what was the reason their override was rejected in this case as arbitrary and capricious? [00:33:41] Speaker 00: Certainly, and that probably requires going back a little bit to the reason for the override. [00:33:45] Speaker 00: So the contract for the facility at issue in this case was due to expire and I believe was either late December or early January. [00:33:52] Speaker 00: The government determined that they needed to override the stay so that they could begin conditioning a new facility. [00:33:59] Speaker 00: There was multiple factors why that was arbitrary and capricious. [00:34:02] Speaker 00: One was the fact that [00:34:03] Speaker 00: the facility is already empty due to the government deciding to move things out of the facility prior to the contract that the the reasons for needing a new facility were simply saying the new contract is better which this court has said are never reasons to put for one contract over the other and that the the stay period was so short that it was going to take four to six months to condition new facility that the hundred days wasn't actually going to interfere with that. [00:34:30] Speaker 00: So I disagree that it was a [00:34:32] Speaker 00: lack of explanation that that is, that is what arbitrary commission review is. [00:34:35] Speaker 00: You look at what the government explained and determine whether there is factors missing or improperly considered. [00:34:40] Speaker 00: But the reason we do that is that when those factors aren't documented, we assume it's because they could not be met. [00:34:46] Speaker 00: And so here the government could not show that there was some urgent and compelling need to the government that was not caused by their own decisions that could not be addressed by exercising the option that remain in the contract to stay with LSL. [00:34:59] Speaker 00: by issuing a bridge contract, by finding a short-term facility. [00:35:02] Speaker 00: And those reasons are why this is unlikely to occur, because in every case, the government has options to ensure there's not going to be this lapse in coverage between the end of one contract and the next in this very important context. [00:35:14] Speaker 04: The finding of the government action being arbitrary and capricious here, is that at all bound up with whether the four factor test should apply or not? [00:35:25] Speaker 04: That is, let's just say if we could rewrite history and the court did apply the four factor test, is there any chance that its finding of arbitrary and capriciousness could be different because it would have been asking arguably different or more questions? [00:35:42] Speaker 00: I don't think so. [00:35:43] Speaker 00: So the Court of Federal Claims applied the Reilly factors, which are not controlling because this court has never endorsed them, but are the general approach Court of Federal Claims judges take and assign this. [00:35:53] Speaker 00: And it looks at the reasons, the alternatives. [00:35:56] Speaker 00: It's similar to the state farm analysis and typical arbitrary compression review designed specifically for the contracting situation. [00:36:03] Speaker 00: There was no meaningful consideration under those factors of [00:36:08] Speaker 00: repel harm, balance of the equities. [00:36:11] Speaker 00: But it probably is worth mentioning that not only is this case moot, not only do we think we're right in the standards, but any error, and there was none, was harmless. [00:36:19] Speaker 00: Because LSL made a documented and overwhelming showing that there was a repel injury to us in the form of lack of competition, which was not only documented in the hearing, but then proven to be accurate. [00:36:31] Speaker 00: As we know in Footnote 1, when the government blew through its estimate of how much this would cost by five times as much giving [00:36:37] Speaker 00: our competitor, a seven, eight figure head start on the next procurement. [00:36:44] Speaker 00: There's also the public interest. [00:36:45] Speaker 00: This court and Supreme Court has said that the public interest has an interest in a fair contracting system. [00:36:51] Speaker 00: So they even had the court below decide it had to consider the equitable factors. [00:36:57] Speaker 00: We more than show them. [00:36:57] Speaker 00: So the court, respectively, I would submit, should not reach out to issue an advisory opinion in a case that's moot, where the alleged legal error here would make no sense. [00:37:07] Speaker 04: Coming back to bootness, I do have one other question on that. [00:37:11] Speaker 04: As you've alluded to, the Court of Federal Claims has dealt with this issue maybe about a dozen times. [00:37:15] Speaker 04: They're not in unanimous agreement. [00:37:18] Speaker 04: If we don't reach the issue here, will their lack of unanimity on that question remain? [00:37:29] Speaker 04: That is, will we ever have a clear standard for the Court of Federal Claims to apply if we don't decide it? [00:37:34] Speaker 00: So I guess two answers, Judge Stark. [00:37:36] Speaker 00: So first, I think you're right that the courts are not unanimous, but they're pretty close to unanimous. [00:37:41] Speaker 00: There's only one non-victa case that applies the argument the government is advancing here. [00:37:46] Speaker 00: Almost all of the decisions and all of the recent decisions, as far as I know, apply what Judge Summers did below. [00:37:52] Speaker 00: The second is, and this goes to the evading review prong, is there's other ways that they should forget before the court. [00:37:57] Speaker 00: So RAMCOR, which is the seminal case for the legal standard for judicial review of state overrides, came to this court because there was an EAJA application. [00:38:06] Speaker 00: And in many of these cases, [00:38:08] Speaker 00: where the bidder meets the qualifications for the EAJA fee shifting, the question before the court will not just be, are they entitled to fees, but was the underlying decision correct? [00:38:19] Speaker 00: And so this issue could come up to the court through that route. [00:38:23] Speaker 00: And in addition, as we mentioned in our 28J letter, [00:38:26] Speaker 00: The government also could have moved more quickly to get interim review from this court. [00:38:30] Speaker 00: It could have decided to seek a relief pending appeal. [00:38:33] Speaker 00: It could have sought expedition. [00:38:35] Speaker 00: It chose not to do that. [00:38:36] Speaker 00: And what this court said in eSimplicity, where I think the timing was 60 days, it said if the [00:38:42] Speaker 00: Appellant doesn't move quickly enough. [00:38:44] Speaker 00: They cannot then find refuge in the capable repetition. [00:38:47] Speaker 00: The Newdown line of case from DC Circuit says the party invoking the exception has to make full effort to try and avoid mootness. [00:38:54] Speaker 00: And so I think there are other ways this issue could come before the court and could have clarity for the court and federal claims. [00:39:00] Speaker 00: OK. [00:39:00] Speaker 03: Thank you, Mr. Hayes. [00:39:01] Speaker 03: Thank you, Your Honor. [00:39:03] Speaker 03: Council, you have three minutes of rebuttal back. [00:39:06] Speaker 02: Thank you, Your Honor. [00:39:08] Speaker 02: I just have three brief points I'd like to make. [00:39:10] Speaker 02: To answer Your Honor's question about the frequency of stayover rides, our office has received five complaints since October 1st for stayover rides. [00:39:16] Speaker 02: Now those don't always precede litigation. [00:39:18] Speaker 02: Sometimes we try to work those out. [00:39:20] Speaker 02: I think the ambiguity about the standard that we'll be subject to... Wait, five complaints for stayover rides? [00:39:26] Speaker 03: So five big protesters who the government decided the [00:39:32] Speaker 03: The state should not be in effect, and they've reached a decision to make an override. [00:39:36] Speaker 03: Five people are complaining about those decisions. [00:39:39] Speaker 03: Correct. [00:39:40] Speaker 03: Since October. [00:39:42] Speaker 03: Do you have any reason to think that that is an empirically representative [00:39:47] Speaker 03: number because, respectfully, this administration has at times done things differently than other administrations, which has at times caused a tiny bit of conflict or litigation. [00:40:00] Speaker 03: So do you think that that number you just gave me from October till now would actually be the same number that applied, say, four years ago or six years ago? [00:40:10] Speaker 02: It might be a slight uptick, Your Honor. [00:40:11] Speaker 02: I take that point. [00:40:12] Speaker 02: It's not completely out of sample. [00:40:14] Speaker 02: I think in a typical year, we probably have between 10 and 20 of such cases. [00:40:18] Speaker 02: Now again, they don't always proceed to litigation. [00:40:20] Speaker 02: We will often try to resolve them if we can pre-litigation or before a ruling on the case. [00:40:25] Speaker 02: But that's about the pace that we typically see. [00:40:28] Speaker 02: The only other two points I want to make in the context of PGBA. [00:40:32] Speaker 02: So I heard my friend use a couple times, all the court was doing here was wiping out the override and then the state goes back in place. [00:40:37] Speaker 02: But I think that's really the distinction that we're trying to emphasize. [00:40:41] Speaker 02: A court can't wipe away an agency decision. [00:40:44] Speaker 02: without restraining the agency and setting aside what the agency wants to do. [00:40:48] Speaker 02: That is the course of act. [00:40:50] Speaker 02: And so I want to make sure I'm clear on that, that it has nothing to do with the imposition of the automatic stay. [00:40:54] Speaker 02: It's about telling an agency, not only do I think you were wrong, but I am issuing an order declaring that the thing you did is now invalid, null, it is removed from the record. [00:41:05] Speaker 02: It's as if it didn't exist. [00:41:06] Speaker 02: Isn't that always what declaratory judgments do? [00:41:09] Speaker 02: In the context of government cases, that is probably true, Your Honor. [00:41:12] Speaker 02: And I think this is important to remember, declaratory relief can be obtained in private litigation, and there may be a whole host of scenarios where that wouldn't be the case. [00:41:20] Speaker 02: Think about assigning property rights, IP rights. [00:41:22] Speaker 02: There may be a declaration of rights that doesn't necessarily invalidate something, but that may be useful in other contexts. [00:41:30] Speaker 02: I do think it's true that in government litigation, pretty much most of the time, you're going to be [00:41:35] Speaker 02: doing something to invalidate what the government did if you're declaring it unlawful. [00:41:39] Speaker 02: That just kind of goes with the territory. [00:41:41] Speaker 01: I mean, an example I was thinking about is Hampton Dellinger, who was the head of the Office of Special Counsel. [00:41:47] Speaker 01: There's litigation when he was removed earlier this year, and Judge Jackson in the DDC issued a decision on March 1st saying, I'm going to enjoin his removal [00:41:59] Speaker 01: but not as to the president, but I'm going to declare his removal invalid as to everyone, including the president, because of the trickiness of enjoining the president. [00:42:10] Speaker 01: And that's a distinction that's interesting, but it still has legal effect. [00:42:13] Speaker 01: It undoes the removal as a legal matter. [00:42:15] Speaker 01: Why is that different here? [00:42:17] Speaker 02: So I don't want to take a position on behalf of the government in that case, but I do think if we're looking at the analysis this court applied in PGBA, it would practically be the same, at least in the bid protest context. [00:42:29] Speaker 02: And that's the last point I'll just make briefly, which is PGBA, one of the plaintiff's arguments on appeal was that in denying their request for a remedy, [00:42:40] Speaker 02: the trial court also erred in converting their requested relief for declaratory judgment into an injunctive relief test. [00:42:47] Speaker 02: That was one of their arguments. [00:42:48] Speaker 02: And this court squarely addressed that argument and said, no, that was not error, because under Supreme Court precedent, we do a functional analysis, and we see the effect of the relief that you're looking for. [00:42:57] Speaker 02: So that was, in our view, squarely addressed in PGBA. [00:42:59] Speaker 03: The hardest thing for me between PGBA and this case is that there is a decision by Congress [00:43:09] Speaker 03: here in Sika as to what should happen. [00:43:13] Speaker 03: if the government is not able to establish an override. [00:43:16] Speaker 03: So I'm just telling you flat out, this is my problem. [00:43:19] Speaker 03: This is where I'm struggling. [00:43:20] Speaker 02: I appreciate that. [00:43:21] Speaker 02: And to be candid, Your Honor, I think that's the struggle of a lot of the quarter federal claims decisions that we see. [00:43:25] Speaker 02: I think we do see that logic in some of the quarter federal claims decisions, saying, well, what do we do about the fact that Congress did provide for some automatic relief? [00:43:33] Speaker 02: And I think in our view, the biggest distinction is the automatic relief is preliminary by nature. [00:43:40] Speaker 02: We view that as essentially [00:43:43] Speaker 02: removing the requirement that would ordinarily be the case in federal court to obtain preliminary interim relief before the merits are judged, but that once the agency makes further findings and provides further evidence of record and makes a new administrative decision about the override, [00:43:58] Speaker 02: then it's not exactly a final judgment, but it's moved beyond that very preliminary interim step, where there is essentially very little record for an adjudicator. [00:44:07] Speaker 02: And so we do believe that it would not be inconsistent with the scheme Congress has laid out to say that is more than just preliminary interim relief. [00:44:15] Speaker 02: We now have additional findings, additional agency action, and it would be appropriate that if that action is to be set aside or nullified, that the plaintiff needs to make a stronger showing under the injunctive relief practice. [00:44:27] Speaker 04: Can I just add one more? [00:44:28] Speaker 04: But my concern is, in this case at least, that second step was arbitrary and capricious. [00:44:38] Speaker 04: And so why should we give it any weight at this point? [00:44:43] Speaker 02: And again, we fall back to under 1491b. [00:44:47] Speaker 02: This court has made clear a finding of arbitrary and capriciousness does not entitle the plaintiff to relief. [00:44:52] Speaker 03: No, the statute says what should be the default. [00:44:56] Speaker 03: That's the problem, right? [00:44:58] Speaker 02: And again, I think we have to put meaning to the fact that Congress did not provide judicial review for an override. [00:45:04] Speaker 02: So we have to look to 1491. [00:45:05] Speaker 02: It is our position. [00:45:07] Speaker 03: OK, I want to thank both counsel. [00:45:09] Speaker 03: And for all of you, this was an outstanding oral argument. [00:45:13] Speaker 03: You were both really great, extremely well-prepared, very informative. [00:45:18] Speaker 03: It was really helpful. [00:45:19] Speaker 03: I don't often see this good a job by both lawyers. [00:45:23] Speaker 03: So thank you so much. [00:45:24] Speaker 03: And for all the law clerks up there, I hope you're paying close attention. [00:45:27] Speaker 03: This is what I expect all of you to do. [00:45:28] Speaker 03: Thank you.