Hearing Transcript — Motion to Restore Nationwide Injunction — East Bay Sanctuary v. Barr (N.D. Cal., 2019-09-06)

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U.S. District Court for the Northern District of California · No. 4:19-cv-04073-JST · Doc. 72 · 2019-09-06 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
Before The Honorable Jon S. Tigar, Judge 
EAST BAY SANCTUARY COVENANT, 
)
ET AL.,   
)
                               ) 
           Plaintiffs,        )
                               ) 
  VS.                          )    NO. CV 19-04073-JST 
                               ) 
WILLIAM BARR, ET AL.,   
)
                               )   
           Defendants.       
)
                               ) 
 
                           Oakland, California 
                           Thursday, September 5, 2019 
 
TRANSCRIPT OF PROCEEDINGS 
 
APPEARANCES: 
 
For Plaintiffs:         
                        ACLU FOUNDATION IMMIGRANTS' RIGHTS 
                        PROJECT 
                        125 Broad Street - 18th Floor 
                        New York, NY  10004 
                   BY:  LEE GELERNT, ESQUIRE                          
 
                        ACLU FOUNDATION IMMIGRANTS' RIGHTS 
                        PROJECT  
                        39 Drumm Street 
                        San Francisco, CA  94111 
                   BY:  KATRINA L. EILAND, ESQUIRE 
                        JULIE M. VEROFF, EQUIRE 
                        MORGAN RUSELL, ESQUIRE 
 
 
 
 
Reported By:       Pamela Batalo-Hebel, CSR No. 3593, RMR, FCRR 
                   Official Reporter  
 
 
 
Case 4:19-cv-04073-JST   Document 72   Filed 09/06/19   Page 1 of 30

APPEARANCES CONTINUED 
 
 
For Defendants:         
                        U.S. DEPARTMENT OF JUSTICE 
                        Office of Immigration Litigation,  
                        Civil Division 
                        950 Pennsylvania Avenue, NW 
                        Washington, DC  20530 
                   BY:  SCOTT G. STEWART                          
                        DEPUTY ASSISTANT ATTORNEY GENERAL  
 
 
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Thursday - September 5, 2019
                  9:30 a.m. 
P R O C E E D I N G S 
---000--- 
THE CLERK:  Your Honor, now calling CV 19-4073, East
Bay Sanctuary covenant, et al. vs. Barr, et al.
If counsel could please come forward and state their
appearances for the record.
MR. STEWART:  Good morning, Your Honor.  Scott Stewart
on behalf of the United States.
THE COURT:  Good morning, Mr. Stewart.
MR. GELERNT:  Good morning, Your Honor.  Lee Gelernt
for Plaintiffs from the ACLU.
THE COURT:  Good morning, Mr. Gelernt.
MS. VEROFF:  Good morning, Your Honor.  Julie Veroff
for Plaintiffs.
THE COURT:  Good morning, Ms. Veroff.
MS. EILAND:  Good morning, Your Honor.  Katrina Eiland
for Plaintiffs.
THE COURT:  Good morning, Ms. Eiland.
MR. RUSSELL:  Your Honor, Morgan Russell for
Plaintiffs.
THE COURT:  Good morning, Mr. Russell.
Who will be arguing on behalf of the plaintiff this
morning?
MR. GELERNT:  I will, Your Honor.
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THE COURT:  Very well.
So unless counsel have worked out some other arrangement,
I will hear first from Mr. Gelernt and then I will hear from
Mr. Stewart and then Mr. Gelernt will have a second go at the
microphone and then Mr. Stewart will have a second go at the
microphone.
I probably will have a couple of questions for counsel.  I
don't know that our exchanges will be as spirited as they have
been in the past.  I don't know that I have all that much for
you.
I would say to the Government that with regard to its
argument about whether the Court has authority to consider the
question of whether this should be a nationwide injunction, it
is hard for me reconcile the Government's position that I don't
with the language of the Ninth Circuit's order which says that,
"the district court retains jurisdiction," etc.  And it seems
to me that there are parts of the Government's opposition brief
that, if I were to accept those parts, would require me to read
the very same phrase in the Ninth Circuit's order as saying
that the district court does not retain jurisdiction, and so
you should explain to me why I'm overreading or misreading the
Government's position on that point.
Other than that, I think I'll have maybe a few questions
as we go along.
Mr. Gelernt.
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MR. GELERNT:  Thank you, Your Honor.
We believe that the supplemental declarations we've
submitted with this motion are more than ample to show why our
plaintiffs will suffer injury if there is not a nationwide
injunction, and we would think that the record is more full
than when Judge Bybee and then ultimately the Supreme Court
refused to stay the nationwide injunction.
I would in particular ask the Court to focus on the
declaration -- supplemental declarations submitted by Law Lab,
and they outline several different harms that will occur if the
injunction is limited to the Ninth Circuit.
For one, they directly represent individuals outside the
Ninth Circuit.  A Ninth Circuit injunction would not remedy
those harms.  I think that's dispositive to begin with.
The other two points have to deal -- deal with the types
of work they do beyond just retained clients.  One is their
Centers of Excellence where they match pro bono attorneys with
clients, and that's an enormous part of their work, and it
occurs all over the country.
And what the declaration explains is that if they now need
to do that matching all over the country with different rules,
it's going to significantly increase the amount of work they
have to do.  In particular, they will have to now train their
pro bono attorneys to deal with CAT and withholding relief,
which is much more difficult to obtain, much more complicated.
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It also does not allow derivatives like asylum so it will
increase the number of cases they have.  And that goes on all
over the country.
In addition, they have trainings and workshops all over
the country.  They do not know in advance where those people
will ultimately enter, where they will end up, but moreover,
they certainly do those workshops in areas where the people
have entered and will remain outside the Ninth Circuit.
What they have explained is that it will require, again,
enormous work for them to create a second set of materials to
deal with the rule and for people who are only going to be
eligible for CAT and withholding.  In particular some of the
software and videos will have to be redone, and they're not
sure they can even do that.
I think the other point in particular they make is they
would like to expand their workshops in Tijuana to Juarez where
the rule currently does apply.  They're not sure they'll
ultimately be able to do it.  What they were anticipating doing
is duplicating the Tijuana workshops, and that was going to be
a big task, but they felt it was doable.  Now if they have to
create a whole different workshop in Juarez, they're not sure
they can do it without enormous, enormous effort.
So those are just some of the injuries that Law Lab will
suffer.
Carecen, in addition, has 60 percent of their clients --
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THE COURT:  Madame Reporter, C-A-R-E-C-E-N.
MR. GELERNT:  Sorry.
They have -- 60 percent of their clients -- that's in the
new supplemental declaration -- come from outside the Ninth
Circuit.  Those individuals will likely not make it to the
Ninth Circuit because they will either fail the higher standard
or the Government who controls where individuals are detained
will not make it to the Ninth Circuit.  So that's an enormous
harm, substantial harm, for them resources-wise and their
mission.
AOL is the same as Law Lab in terms of the workshops for
people who are not in the Ninth Circuit.  They're the same as
Carecen for individuals who will not make it to the Ninth
Circuit.
Your Honor, we believe on the first go-around, the first
asylum ban, that the record was sufficient, but I think this is
far greater now than the record on the first asylum ban, even
with the Government's guidance.
We are not relying on the confusion and vague aspects of
the guidance for you to rule.  We believe that even if you take
the most expansive understanding of the guidance, the harms are
still obvious to our plaintiffs outside the Ninth Circuit.
But as an additional sort of makeweight, we do believe the
guidance is extremely vague.  We don't understand what is meant
by "proceedings" versus "adjudication," and even if the -- and
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there is inconsistencies between the guidance being issued to
EOIR, to ICE, and to various other agencies, to USCIS.  But
even if the Government in their own head has some sense of how
the guidance works, it's going to be an enormous task for
plaintiffs in every single case to figure out how the guidance
would apply to any individual.
But, again, Your Honor, that's simply a makeweight because
even if the guidance isn't understood to be expansive, it's
still, by the Government's own admission -- would not help all
of these things outside the Ninth Circuit:  The direct
representation, the workshops, the Law Lab Center of
Excellence.
So for all those reasons, we believe the record here is
now plainly sufficient.  The supplemental affidavits lay out
the facts, connect the dots.  And so unless there are
questions, I will --
THE COURT:  I don't know that this is really a
question for you, but let me think this thought out loud so you
can hear it and respond to it and then Mr. Stewart also can, if
he wants.
Of course the Ninth Circuit Motions Panel gave careful
consideration to the materials in front of them.  That's
evident from their order.  I do think that this question of the
sufficiency of the record is tied up a little bit with the
sufficiency of the explanation that I gave and that obviously
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the record needs to be considered in its totality and there's a
bigger record now, but I really did not go through a lot of
effort to explain why a nationwide injunction in this case was
appropriate because it was my reading of the Motions Panel's
order in the first East Bat Sanctuary case that -- and I'm
oversimplifying just to speed through these remarks.  Don't
take this literally, either of you, but Judge Bybee's -- that
portion of Judge Bybee's order was very, very short, and he, in
so many words said, "Well, it's an immigration case.  Of course
it's a nationwide injunction."  And so I am oversimplifying a
little bit when I say that, but my original order in this East
Bay case really reflected that understanding of what that
Motions Panel had said.
And so I think that when they say the record is not
adequate, I take that to mean a little bit Judge Tigar's
explanation of the record was not adequate, and so I think I
have some more explaining -- if I decide to grant this motion,
I have some more explaining to do, and my explaining needs to
include the parts of the original record as well as the
supplemental record.
MR. GELERNT:  Your Honor, I know the question was more
posed to the Government, but I think that's right; that reading
the stay order, they seem to be talking about the extent to
which they might have looked at the affidavits.  We didn't put
the affidavits before them in excerpts of record --
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THE COURT:  Let me say what I said a moment ago in one
sentence, so much shorter but much more clear.
I take the current Motions Panel to say, "Judge Tigar, you
seem to assume that in a situation like this, a nationwide
injunction is appropriate.  You shouldn't make that assumption.
Please explain yourself."
So that's where I think we are.
MR. GELERNT:  We agree, Your Honor, that it probably
makes sense to focus on both the original and the supplemental
declarations and lay it out fully.
THE COURT:  Aside from that comment, I don't have any
questions for you.
MR. GELERNT:  Thank you, Your Honor.
THE COURT:  Thank you, Mr. Gelernt.
Mr. Stewart.
MR. STEWART:  Thank you, Your Honor.  May it please
the Court.
I will start with the jurisdictional question, Your Honor,
and focusing on the text of the Ninth Circuit's observations
just quickly, the key thing we're focusing on, Your Honor, is
the Ninth Circuit said, quote, "the district court retains
jurisdiction to further develop the record in support of a
preliminary injunction extending beyond the Ninth Circuit."
What we're saying, Your Honor, is that the court
contemplated that this Court could, while the appeal was
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proceeding -- and the Ninth Circuit surely contemplated that it
was going to proceed apace, rapidly, opening brief has been
filed, argument to follow, as Your Honor is well aware, because
it's later in that very paragraph, of course.  The Ninth
Circuit was not contemplating and did not authorize the
district court and this Court to issue a new injunction or to
alter the scope of the injunction pending --
THE COURT:  We are at our first question already.  So
doesn't that question of a new injunction versus existing
injunction -- doesn't that look at the injunction that this
Court issued prior to any modification on appeal?  Isn't that
the slice of time I'm looking at?
And that's a predicate question to another question I want
to ask you, so I will ask both of them.  You will understand
why I asked that question.
Isn't the limitation that this Court can't expand or alter
in certain ways the injunction that it issued right at the
moment of time it issued before any modification that happened
on appeal?  And if that's true, why is it a new injunction?
Let's say I were to say, "Yes, I still think that a nationwide
injunction is appropriate."  How is that a new injunction?
MR. STEWART:  I mean, I think because the Ninth
Circuit didn't authorize this Court to actually issue an
injunction or alter the order that the validity -- the validity
and scope of which is currently under consideration on appeal,
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Your Honor, when that has not been remanded back to this Court
yet or when the Ninth Circuit didn't -- didn't say it
authorized the Court to rule -- actually rule on a further
injunction.
THE COURT:  What would the purpose be of my developing
a record in support of a nationwide injunction if I didn't have
the authority to issue one?  What would the purpose be?
MR. STEWART:  I think similar to the way the
indicative ruling process works, Your Honor.  It's, you know --
the Court can develop, make fact findings, indicate how it
would rule if jurisdiction were retained.  The Ninth Circuit
could then be notified as to what the Court were inclined to
do.
But that sort of thing, Your Honor, developing the record,
getting those facts that the Ninth Circuit believed were not
before it, were not in the record at the time, and both -- so
basically both moving the case along while respecting the
balance of the Court's authority and the Ninth Circuit's
decision to proceed apace with the appeal.
THE COURT:  Okay.
MR. STEWART:  So I think still retain the ability to
do quite a bit, Your Honor, and to move forward and do the
relevant fact-finding, but the ability to actually make a
ruling would be to await a clear signal from the Ninth Circuit,
a remand for a ruling of that sort, the issuance of the mandate
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following the disposition of the appeal, and we think the Ninth
Circuit did not -- did not remand or indicate, you know,
restoration or expansion of the injunction.  It just -- it
contemplated further factual development while it considers the
order that is now on appeal.
THE COURT:  The Government cites in its opposition
several cases in which appellate courts chided or reversed
district courts because they had -- the district courts in
those cases had taken steps to modify a previously-issued
injunction; right?  I mean, you cite several cases in which
that happened.
My question for you is isn't it true that with regard to
every single one of those cases -- isn't it true that with
regard to none of those cases did the Court of Appeal do as it
did here where it expressly said the district court has
jurisdiction to consider that question?
I unfortunately didn't bring the note in front of me.  I
wanted to focus on three of those cases in particular.  But are
there -- I will just ask you about all the cases in your brief.
Are there any cases in which the appellate court said to the
district court, "Please take a look at this question," and then
the district court did something with the injunction, and the
appellate court said, "You shouldn't have done that"?
MR. STEWART:  I can't summon to mind one, Your Honor.
The point I would emphasize here is that we have kind of
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an interesting posture situation where it's not just an appeal
is pending and kind of awaiting the normal course.  We have a
stay that -- that -- that affected the operation of the
injunction that this district court ruled.
So in a way, it's kind of like, look, the appellate court
said here is an error.  We're going to identify it, and we're
going to explicitly say in the interests of moving things
along, however you want to describe it, the district court can
still do fact-finding.
So I think it could be a response to the situation that
resulted from the Ninth Circuit stay.
THE COURT:  It's possible that you and I and
Mr. Gelernt all agree on this thing I'm about to say, which is
there is some ambiguity in the direction that was provided by
the Ninth Circuit.  Do you disagree with that?
MR. STEWART:  I'd say the Ninth Circuit could have --
I mean, it could have said more.  I don't think there is
ambiguity as to the granting of authority to issue the
injunction, Your Honor.  And I would add -- and we do cite
cases to this effect, that when -- if there is a situation
where the scope of a remand is unclear, it's a situation where
the district court needs to stay its hand, so I would emphasize
that if that's a point that all would agree on.
THE COURT:  Well, I -- you can agree or not agree, but
I think -- I think that there -- neither you nor the plaintiffs
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would have spilled so much ink if the direction from the Ninth
Circuit was as clear as it could possibly be.
So I think that means, by definition, there is some
ambiguity.  And I'm just wondering if it's possible that what
they wanted was for the -- this Court to examine -- to develop
the record, to then examine the more-developed record in its
totality, and just affirm its -- or not -- its prior nationwide
injunction, if that's a possibility, but it's also possible
that all they wanted was an indicated ruling under 62.1.
What would the harm be in the Court issuing an order
saying, "This is what I'm doing, but if all you wanted was an
indicated ruling under 62.1, please consider it in that
posture."  Wouldn't that solve all these problems, and that way
one of you -- whichever one of you is right gets what he or she
wants?
MR. STEWART:  I mean, I think -- I guess I have not --
I'm not sure what all would follow that, Your Honor, but it
sounds like there is a risk there.  If they -- if the Court
were to issue a ruling changing -- expanding injunctive relief
or that sort of thing, it could potentially precipitate another
round of emergency filings and all that stuff.  The indicative
ruling procedure --
THE COURT:  But how could I possibly expand it?  I
issued a nationwide injunction.  What is the case that says
that I am now limited in my own consideration to something
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other than the order I previously issued?  What is the case
that says that?
MR. STEWART:  I think it's the body of cases, Small --
these other cases that lay down the rule that when an order is
on appeal --
THE COURT:  Yes.
MR. STEWART:  -- the validity and scope of that order
is jurisdiction, authority, you know, whichever word sort of
fits here, I understand, Your Honor -- is with -- is with the
Court of Appeals, and that rule applies to make this Court
unable, without square direction from the Ninth Circuit --
THE COURT:  Just tell me what your best case is.  I
will reread that case when I get off the bench.
What's your best case on this point?  It's foundational to
everything else we're doing.
MR. STEWART:  I mean, I think -- I think the McClatchy
case is a good one, Your Honor.  The Small case makes the point
well.
THE COURT:  I've really done a terrible job of living
up to my promise to not ask that many questions of you.  So why
don't I just stay my hand for the moment.  I'll just let you
finish making the argument that you came to make, and then if I
have more questions, I will ask them at the end of that.
MR. STEWART:  Happy to proceed, Your Honor.
I would say -- and this will be in response to one of --
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one of Your Honor's questions to my friend -- that I think that
the Ninth Circuit's -- what it faulted the injunction order's
analysis on was twofold and I think two independent points.
One was not -- not considering -- and this is at page 5 of the
ruling -- not considering whether nationwide relief was
necessary to remedy the harms, but then it added, you know, as
a separate and additional point -- I think that gets to
Your Honor's first point about just, you know, addressing and
walking through the different considerations in evidence.  But
then the Court said "and," and then based on the record before
it, it didn't believe a nationwide injunction was limited, so
it really, I think, goes beyond the amount of explanation or
consideration and to just the absence of an evidentiary
showing.  
And this leads me into the -- the part of my, for lack of
a better word, merits argument, Your Honor, beyond the
jurisdictional points we've covered, and that's the new
declarations submitted by the plaintiffs here, they don't
change anything.  They don't carry the plaintiffs' tremendous
burden for exceptional -- for an exceptional expansion of
injunctive relief, let alone an exceptional nationwide
injunction yet again.
I mean, they're essentially a repackaging, a
representation of the arguments they already made.  And we
already knew that Law Lab, Al Otro Labo, were operating in
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different parts across the country, in Mexico; that they
represented people outside the Ninth Circuit; that they had
these different projects.  We knew all of those things.
Now the plaintiffs have maybe reframed or added a little
bit of emphasis, but we knew that the operations were
nationwide, and the Ninth Circuit still deemed the record
insufficient.
To respond to a couple -- I will begin by saying,
Your Honor, I -- the guidance put out which, you know --
does -- does -- eliminates a great number of the harms here,
and it's really -- really quite clear about how clear and I
think brings across the point well.  But I'll say that the
approach of the plaintiffs coming forward and identifying
actual clients subject to the rule would eliminate a vast swath
of their harms.
The plaintiffs acknowledge in their reply brief that they
are not -- they say they're not huge organizations.  They --
some of their declarations are -- identify the small numbers of
clients some of them represent.  It would not be an onerous
burden to say, "Look, here are the folks we have identified as
actual clients.  Don't subject them to the rule."  That would
provide complete relief to them, and it would get rid of most
of their concerns right off the bat.  That would address the
issue of individuals outside the Ninth circuit.  And, again,
they're still -- with respect to those individuals, there are
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still other problems, Your Honor.
Again, the Ninth Circuit Motions Panel knew about
operations outside the Ninth Circuit.  A lot of these things --
these claims about people outside the Ninth Circuit are
speculative.  We still don't have the plaintiffs coming forward
with any evidence of actual individual clients.  They've had
the opportunity many times to do so.  They know the Government
emphasizes that that's the proper approach.
THE COURT:  Does it say anywhere in the Ninth
Circuit's Motions Panel's order that they believe either --
that they conclude either that the plaintiff organizations
would not suffer any harm outside the Ninth Circuit or that
they believe that less than a nationwide injunction would
address any harm to those organizations that they suffer
outside the Ninth Circuit?
I mean, you're doing what I would do if I were you.  You
are putting as much weight as you think you possibly can on the
completeness of the existing record at the moment of appeal.
I'm trying to figure out how much weight it will really bear.
So my question for you is I don't remember the Ninth
Circuit addressing that subject anywhere.  Do you?
MR. STEWART:  I -- I -- I'm not sure I completely
grasp which formulation, Your Honor, but I think the key line
for me -- and maybe I can just read this off and you can tell
me where I may be missing -- crossing -- the point you're
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asking, Your Honor, is the page 5: "And based on the limited
record before us, we do not believe a nationwide injunction is
justified."  That's what I'm focusing on.
We don't have a record showing that a nationwide
injunction is justified, and I'm saying all that has been added
since then doesn't make up for that shortfall.  We still don't
have individual aliens.  We still don't know --
THE COURT:  Well, let me just ask you, I get the
argument the record is not that different.  I get that
argument.
How does an injunction that isn't nationwide completely
address the harm to the plaintiffs?  So, in other words,
putting that "Hey, Judge, the record is not that different"
point to one side, let's assume that I agree with you and I
say, "Okay, I've looked at this record, that plaintiffs got the
chance that the Ninth Circuit gave them, and I have nothing
further to say on this topic, and I think we ought to just
allow the injunction to stay in force only within the Ninth
Circuit, as the Motions Panel ruled."
How would that injunction completely address the harm to
these plaintiffs?
MR. STEWART:  It would -- it would demonstrate any
harms that they have been able to show, Your Honor.  They could
perhaps show some out-of-circuit harms by bringing forth some
actual clients.  They have declined to do that, and it's their
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burden.  Therefore --
THE COURT:  But how is that -- how are you answering
the question?  I previously found in the first East Bat
Sanctuary case and again in this case that these organizations
suffered organizational harms that were not tied to any
particular client, and that finding has now been either
explicitly or implicitly affirmed twice, so they are not
required to show that in order to show sufficient
organizational harm for purposes of both standing and the
issuance of an injunction.
And so the question is those sufficient organizational
harms, if they are being suffered outside the Ninth Circuit, do
you dispute that those harms are being suffered, or do you
believe that a Ninth-Circuit-only injunction addresses those
harms?  Don't you have to take one of those two positions?
MR. STEWART:  I mean, I think the difficulty,
Your Honor, is that as the Government explained in its
application to the Supreme Court, we think there are some --
are flaws even with a circuit-limited injunction because it's
not truly tailored to the plaintiffs' remedy.  So it's
difficult to kind of endorse a circuit-wide approach, which is
why I am emphasizing that the client-by-client approach is the
sensible one to address the harms.
What I would argue in response to Your Honor's --
THE COURT:  I want to be clear right now, the Supreme
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Court has not spoken on this question.  And of course once they
do, that will be the final word.  But until that happens, we
have the harms that I just identified, and you can say, "I
don't like that analytical structure," and you're entitled to
that opinion, but I'm giving you what in tort law we would call
"the last clear chance" to explain to me how a
less-than-nationwide injunction solves these harms, either
because it does solve them or because the harms aren't real,
and I am limiting myself to the harms that have been identified
in this Court's and the Ninth Circuit's prior orders.
MR. STEWART:  And what I would say is that those are
not cognizable harms for these organizations.  I recognize that
the Court may disagree and is indicating disagreement with that
approach, but what I'm saying is that the only cognizable harms
that the plaintiffs can press here are the ones to actual
bona fide clients.
The other harms they claim could be addressed in -- to the
extent they exist at all, could be addressed in the ways that
the Government has proposed.
The key thing I would just come back to, Your Honor -- and
I recognize what Your Honor is saying -- is that the plaintiffs
have not carried their burden to show that a nationwide
injunction is necessary to address their harms.  And I think
that's -- that's a critical fault that the Ninth Circuit
Motions Panel found here, and it's, I think, very, very
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important to heed, and we just don't have that showing, that
carrying of the burden outside the Ninth Circuit that the
plaintiffs were obliged to do if the Court were to have
jurisdiction.
THE COURT:  All right.
MR. STEWART:  Just briefly, Your Honor, I will note --
I just want to make sure that I responded to each of
Mr. Gelernt's points.
     (Pause in proceedings.) 
MR. STEWART:  I think I'll save remaining for
rebuttal, if I have anything else, Your Honor.
THE COURT:  Very good.  Thank you, Mr. Stewart.
Mr. Gelernt.
MR. GELERNT:  Your Honor, I actually do not have more.
The only thing I would just mention on the jurisdictional
thing --
THE COURT:  McClatchy is not a bad case for you.
There is a case called Mayweathers that distinguishes it for
the reasons that matter.
MR. GELERNT:  Right.
I would just say if the Government is asking you to narrow
the injunction to client-specific, you couldn't have
jurisdiction to do that but not jurisdiction to reinstate your
prior order.
Unless the Court has other questions, I think I will just
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sit down then.
THE COURT:  I don't have.
MR. GELERNT:  Okay.
THE COURT:  Thank you, Mr. Gelernt.
Mr. Stewart, nonetheless, you can make the points that you
were going to make.
MR. STEWART:  Thank you, Your Honor.
I'm sure Your Honor is anticipating it, but I wasn't
suggesting the Court had jurisdiction.  I was just saying the
problem with the -- a correctly-tailored injunction, in the
Government's view, would be one of client focus, but of course
the Court knows that from our briefing and our argument.
I would just reemphasize the point, Your Honor, that at
most, the Court -- at most what the Court can do is indicate
how it would rule under a further development of the record.
The plaintiffs --
THE COURT:  Unlikely to do it in the alternative for
the reasons I explained earlier.  I don't want -- whatever view
I have of what the Ninth Circuit said is actually fairly clear
now, and it will only clarify itself further for me as I'm
finishing this order, but I might be wrong, whichever way I go,
and so I think I need to give them the option of deciding what
it is they said because, of course, they're the ones who said
it.
So that indicative ruling will be part of what I say.
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MR. STEWART:  Understood, Your Honor.
Aside from that, I would just reemphasize the points about
burden.  The record really hasn't changed here, Your Honor, and
I think given the Ninth Circuit's order and its view of the
limited record not justifying an injunction, the Court still is
not at a point where it could restore or broaden the
injunction, even if it had jurisdiction.
THE COURT:  Let me just say one more thing out loud
that I'm just remembering, and I will ask Mr. Gelernt to
respond to this, too.
There is a little back and forth in your respective briefs
about the question of vacatur of that regulation, and I think
that is sort of a distraction, and here is why.
First of all, I think that that's what the injunction
does, and it's the right thing to do.
There is going to be something for each of you in what I'm
about to saying.
That's just the right thing to do in this situation.  The
cases say that when there are the kind of Administrative
Procedures Act problems that are alleged here, that vacatur is
the right result.  But that doesn't really tell you anything
about the scope of the injunction.
Vacatur is either effective within the Ninth Circuit or
it's effective nationwide, so even though -- even though I
am -- I am just as firmly convinced today as I was on any other
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day that vacatur is the right remedy, I actually don't think
that helps the plaintiffs on this motion because I just don't
think the question is relevant.  And so I'm likely to give
these points fairly short shrift in whatever order I issue, but
I just wanted to check with both of you to make sure I'm not
missing something.
MR. STEWART:  Sure, Your Honor.
I think our key point is that it's a -- and I think
Your Honor may have been --
THE COURT:  You suggest in your brief that perhaps the
Court ought to just leave the regulation in place pending
appeal.
First of all, that isn't what I did in my prior order, but
putting that to one side, I just think on the merits, that's
not right.  But it doesn't affect whether you or Mr. Gelernt
win today.
MR. STEWART:  I mean, I think there is still a
question, Your Honor, about when you're doing a set-aside
remedy, the scope of that remedy -- we say in our brief -- the
APA is silent on that.  It doesn't say it has to be facial or
as to everyone or universal.  And what we've explained in our
briefs is the proper approach in an APA case is one that is
limited to the parties.  And -- but I take the point that the
word "vacatur," the label, may not solve it alone, but --
THE COURT:  I think you're right.  The question of
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scope is not addressed by these APA cases.  I just -- I just --
anyway, I'm just repeating myself.
Mr. Gelernt, do you disagree with what I just said?  I
just don't think it helps you very much.
MR. GELERNT:  No, Your Honor.  The only thing I would
just add is I think Judge Bybee thought it was an additional
factor, but I don't think it's dispositive for the reasons that
you're outlining.
THE COURT:  I think that might be right.  It's a
factor for the Court to consider, but it doesn't get you all
the way there.
MR. GELERNT:  I think that's absolutely right.
THE COURT:  It comes back to the scope of the harms
and what is needed to address the harms.
MR. GELERNT:  I think that is absolutely right,
Your Honor. 
The only thing I wanted to just say about the indicative
ruling is I think the approach that Your Honor is contemplating
about letting the Ninth Circuit say, "Well, we didn't actually
remand it and so you're going to have the indicative part in
there," I think that's the right approach.
The only thing I would say is if you're going to do it, to
say the court can -- the Ninth Circuit can treat it as an
indicative ruling rather than formally making it an indicative
ruling in the alternative because that would trigger us filing
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a whole bunch of papers that may just make things more
complicated.
THE COURT:  Well, we all have a long history with each
other now.  We're coming up on a year.
You know, there are these radio and television shows in
which you have two very well-spoken persons from opposite
political or judicial perspectives sort of going at it, and
whenever all this is done, the two of you might consider having
such a show.
But what I want to say is that I try not -- I have tried
typically not to tip my hand too far during these hearings, and
I have followed that same path today.  But I do -- I will just
say, I do think that I have the authority to make a clear
ruling in favor of my prior injunction as it was issued if I
believe that the record supports that ruling.  And so if I rule
that the record is adequate, I'm likely to say that.
And what I will say as an indicative ruling in that
instance is that it's a backup position, and so I wouldn't be
making a formal indicative ruling.  I would be inviting the
Ninth Circuit to treat it that way if they felt that the
authority that they had given me was lesser than what I had
concluded.
MR. GELERNT:  Under --
THE COURT:  I want to be very respectful of them, but
I also tend to think the law on this point is actually pretty
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clear.
MR. GELERNT:  Understood, Your Honor.  Thank you.
THE COURT:  Gentlemen, if there is nothing further, I
thank you again for your arguments.  I will take this motion
under submission.  I will give it my careful consideration.
My goal would be to get something out tomorrow, but it
might be over the weekend, and, as always, I thank you both for
your very thoughtful briefs and your arguments this morning.
Court is in recess.
        (Proceedings adjourned at 10:06 a.m.)
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Case 4:19-cv-04073-JST   Document 72   Filed 09/06/19   Page 29 of 30

         
 
 
               CERTIFICATE OF REPORTER
         I certify that the foregoing is a correct transcript 
from the record of proceedings in the above-entitled matter.  
 
DATE:    Friday, September 6, 2019 
 
 
____________________________________________ 
Pamela Batalo Hebel, CSR No. 3593, RMR, FCRR 
U.S. Court Reporter 
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Case 4:19-cv-04073-JST   Document 72   Filed 09/06/19   Page 30 of 30

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