nationwide injunction that fundamentally restructures how an agency allocates its response let me just ask you this just as a procedural matter my recollection is that you didn't raise the issue of the adequacy or appropriateness of a nationwide injunction until the time of your reply brief do i understand correctly well we recognize that this is in a nationwide class that has been certified so are we just are saying  lost that was in the july two thousand and seventeen water and and we're not raising that on appeal and i would just note that us yayas is somewhat different from other agencies in that it does not receive appropriate funds from congress rather it relies on filing fees and there there is no filing fee for an application for asylum or employment authorization so what this means as a result of this injunction is that they're taking having to use filing fees for other petitioners applicants and allocate those resources to adjudicating these applications for employment authorization i can appreciate your concern but are you aware of any case law that suggests that doe the agency has violated the law that the fact that it is relying on filing fees and may not may have to restructure its priorities is a basis for not complying with the rule but no your honor but the question remains whether or not based on the text of the regulation was it the agency is it just is there or does it reflect an agency's intent to create a mandatory binding that will get to that in a minute but as i understand it the agency is in the process of promulgating a rule which would change the thirty day rule is that correct your honor so you're going to correct this problem however we rule on what what we currently have with respect to this class is one thing but you're going to correct that allocation problem by an amendment the rules for me that's probably correct well yes there's no some kind of rule making ongoing comment period ended in november i can't predict what's going to happen moving forward but that's where things do you have any sense of the timing on that new rule i'm sorry your honor i don't know it's not like this is imminent that something's going to happen with the next few weeks or something of that nature i can't i can't speak more to that but for our for our purposes it's not fair to say that we need to make our decision based upon our construction of seven thousand and sixty one and related issues without regard to whether it's a burden on the agency and whether it has adequate funding or whether it's required to change its priorities right well you have to make a ruling based on the existing regulation and statute i can see that what i'm saying that you should you should a court should be hesitant to find to interpret regulations creating this sort of binding and forceful right under these these types of contacts and there are some some concerns if i if they age and see and  different different mr asians have different priorities different emphasis that they will put it there are some issues if an agency can find itself in this manner in this and his time and that of course is an issue we get in the th circuit frequently but if you're familiar with vietnam veterans of america versus right yes you're doesn't that have a strong of like a billet to the issues in this case well we would say one  in the in the full context it doesn't comport in intent for the agency to bind itself in that manner i thought i mean frankly what it said but i was going to ask the same question but i think you have to acknowledge that the agency could pass a regulation that was then binding upon itself right the only question is did it do so here that's the st question yes i guess i'm having a i'm having trouble understanding if we assume for a moment that the regulation is mandatory and i know you disagree with that but let's just assume it is i'm having a difficulty understanding what your concern is with the injunction because as to scope you acknowledge that the class was certified and so it's sort of hard to imagine what the scope would be other than a nationwide injunction there could be questions about how quickly you need to comply with that but i don't really hear you in your briefs saying that the district  unreasonable on that and then there could be questions about your compliance rate in other words are you expected to hit one hundred percent or is it really more reasonable and by all accounts i think everyone agrees the government has done a very good job in trying to comply with  discretion or whether it was will automatically enter injunction that is did did it was required to weigh the equities gauge in a balancing approach and that has implications not just for this case but for other cases  l but you don't suggest i mean if the regulation says thirty days and we assume for a moment that it's mandatory how could the district court enter injunction that said sixty days he would just be rewriting the regulation at that point there would be questions about the scope does apply to a class or not how fast you have to do it should you be penalize if you can't meet one hundred percent but when you look at what the district court did after the order here and there was there were a couple other status reports there was a  nd order in which he basically said look i'm not going to penalize you for being a ninety nine percent or whatever percentile your assets so at that point i'm still not clear what the issue what you'd like us to do so you make some good points in terms of the things that happened afterwards and those that's true but there still is this issue of whether or not the court was was  and what's the relief that you think if you balance the equities what should what should the injunction look like well obviously we're we disagree that the injunction should be entered against us that as i was a position that even if it's mandatory even if we agree that thirty days is mandatory that's correct because of the importance of factor four and the way of the of the different factors that i was more on of the winter test know what you're talking about i'm sorry under the the track factor ok that outweighs every every other concern but that's not quite what the th factor says it says that you have to look at the competing interests there are a lot of other activities that us yassin gauges and that have bearing on the health welfare potentially there are other groups of individuals who have applications pick editions including applications for employment authorization and there is an issue with prioritizing this one  about seven o six but when i was reading through this st of all seems to me the only way we're ever going to get to this analysis of the e p a is the fact that there's a statute dead on point that says nothing in this subsection we construed it can create any substandard of a procedural right or benefit that is legally enforceable by any party against the u s or its agencies so we get to that right and then we say ok can you get there through the a p a and i guess what i'm trying to figure out if i get the seven o six don't i have to look at seven o two before i get to seven o six yes ron and if i'm in seven go to it seems to me the plaintiffs need to show that they've suffered a legal wrong or they were adversely affected or grieved by the agency action would you agree correct your honor ok so what class this group fall under it doesn't seem to me that they've suffered any legal wrong the statute itself says that they don't have any right to employment so i'm having a tough time now they do have a legal wrong are they have virtually affected or aggrieved so i mean you're correct that that a good starting point is to look at the statute and what congress intended right and that that's that's something that needs to be considered by this by this court and in terms of reading what what's the requirement what what is the wrong that there's trying to be addressed through this isn't junction and i think if you if you just look at that language it would be one thing if this were a system that congress intended to create where you'd have a situation where someone could file for example on day one hundred and fifty but but but what you're you're missing my point my point is are we ever going to get to seven hundred and six and that's why you brief didn't really help me either seems to me we're looking at seven o two i'm trying to figure out do these client do these people have a legal wrong i can see they would there's no right to employment then i'm saying  aggrieved wow how can they be aggrieved when they have no right to employment so i'm saying to myself how do we even get to judicial review under seven o two so there is no statutory right to employment  authorization that is that is correct and that's an important point that that perhaps we should have emphasized more and i apologize to the work for for me let me look again at seven o two if i go to the if i go to two  seven which is the regulation that's involved here there's no private right of action and so into oit point seven that's correct and if there isn't doesn't there alexander versus sand vall say we need to look to the so that's that's one of the places in which perhaps this this matter got a little bit off off kilter and and why we think it would be inappropriate for it and it was inappropriate for the court to enter an and particularly given the consequences of you know a case that supports the idea that an expressed prohibition to a private right of action precludes a p a review i'm sorry i didn't hear your question i thought you know a case that tells me that the congress as expressed prohibition of a private right of action would preclude review under the a p a so there are cases limited waiver of sovereign and you know i know what it is what i'm trying to figure out now i've got this before no private action into oit point seven i've got alexander saying i have to look at the underlying statute and now i look for a case which would say if they have expressively prohibited the private right of action do they get to go under the a p a and the answer is no because the a p a doesn't create it you have a case i  not your honor i can think of a case not that is that possibly that way because in the context that we're talking about here is it really even a private right of action you're really talking about enforcing a regulation that the allowing this class to choose to assert this clear based on this discussion you're saying that vietnam veterans of america versus just flat out wrong well i mean that's what it does legally enforceable and that's really the end of the matter that i've been nobody's nobody's saying that congress did create that here the issue is that the agency drafted the regulation the way that it did it it didn't have to say thirty days it could have said fifty days it could have said no days or you know a reasonable time or something else and then this would be a very different case but when you're faced with a regulation that's on face seems pretty mandatory that is the purpose of the a p a to allow somebody to vindicate a right that the agency has decided to make available i guess just gets to the question of whether the agency intended to create created right and whether or not it was even able to able to do so given what the congress has always said and there's problems with in trumpeting a regulation in a manner like one more question because i'm i'm interested in these issues and that's a sign that you're probably going to give the same kind of questions why is this a final agency action know action under some circumstances can be seen as is as is in fact the definition of action and it has to do with how action is defined in the in the definition section of the a p a ok thank you we'll give you a little extra precluding judicial review here now that was precisely what appellants argued before judge robot in the district court and judge joe bart robert rejected you asked for a case and the judge ruled bart was interpret and i'm looking at the statute and given it's a noble review on this i'm saying why exactly so judge robert appropriately cited the supreme court case who qana which is directly on point here and that is that  connell holds that when the statute contains this kind of jurisdiction stripping argument using same language applying to a subsection that does not apply to regulations that are promulgated under the statute now the question is what the problem is when you look at the regulation the regulation point seven doesn't give any private right of action and when you look at alexander versus and of all it says if there's nothing that says  private right of regulation in private right of action in the regulation then you look back to the underlying statute and we're back to live in five thousand and eighty seven i think that i'm coo con is really on point here and as well as the line of cases under the a carty doctrine that is when the agency creates a regulation that's more restrictive that create some kind of individual right then the an individual can sue under e p a under mandamus to enforce that particular right i know that also this issue of jurisdiction the district court judge followed to qana and the appellants did not raise that issue in their brief they did not pursue that argument because they did raise it doesn't mean i can attack expressed prohibition to the private right of action ever precluded review under the a p a i'm not sure if i'm in a position to answer that so i can't i can't think of an example of off the top of my head but i certainly don't think that it's unusual that you have individual actions under the a p a under them and or mandamus certainly we see them all the time in immigration cases challenging the agency's failure to to act we cite donkey chair talk in the briefs for example and we see that not only in the immigration context but but in many of the environmental cases that we've been citing in these briefs as well we have hundreds of cases that do that yes i really don't think that's a that  is a controversial point perhaps the other point that this court was was asking about is is that worthwhile really addressing is the injunction now as you know the district court decided the injunction on two grounds  that is that the language and intent of the law was clear so that it didn't need to do the track balancing factors and then it also went ahead and applied the track balancing factors as well in the alternative of course this court under columbia pictures can rely on either of these rationales to uphold its decisions now we would certainly argue the district court was was correct in applying night circuit precedent in badgley and forced guardians that is when the law is clear when the intent is plain there is no balancing to do what is unreasonable the way the regulation is already answered that thirty days once asylum applicants have already had to wait one hundred and fifty dollars days to be able to apply for work authorization with the agency intent clear also by its federal register promulgated and the a p a directing that the court should compel agency action unlawfully withheld this question is is answered in the court need not go into the track factors as to separation of powers which is really appellants argument here i think the separation of powers argument has has equal force and as the court the district court noted there really no reason to distinguish between the regulation and the statute and that's because under arizona grocery the supreme court has specified that when congress specifically delegates to the agency the ability to act and here they did the agency may make the regulations related to employment authorization then the agency speaks as the legislature and its pronouncements have the force of statute really we're talking about a legislative rule and i think the same big picture separation of powers concepts applies that is this court enforces what the law is  whole other host of questions that come up with you in a class action where you're trying to put in place an injunction and if the district court here had said the government needs to comply with this within twenty four hours i would think that nothing in badgley or the regulation or anything else would say that that that this report was somehow required to do that would be an exercise of discretion using the equitable factors that go into issuing an injunction and we wouldn't be call them the track factors because it doesn't seem to quite fit this case but there's still some amount of equitable discretion that's involved that would then be reviewable right yes that i think that is correct that it really is a case by case looking at the language in the tent of the law and forest guardians and badgley both engage in that case two thousand and fifteen there we had language which says the court of appeal shall grant or deny the authorization to file a nd or successive application not later than thirty days after the filing  motion so it said what we had to do and we said now we don't have to do that this is congress saying we have to do that and we looked at the provision and we held that the statutory prime period providing a directive to an agency or public official is not ordinarily mandatory unless it is both express lee requires the agency or public official to act within a particular time period and specifies a consequence for the failure to comply with the provision so what we did is we said well you're not going to get us to do that we're not going to have any mandamus filed against us and so that's what we're going to do so why is this not a political in this case so i think this speaks directly to the loss of authority arguments in cases that we were briefing that is some of the directions to act within a certain period of times can be a claims processing rule that can be relaxed however the supreme court distinguishes between the different types of loss of authority cases so here for example we're not arguing for some extra regulatory or extra due gestural sanction that is that the agency can't adjudicate the work authorizations if they're acting past thirty days or they're precluded from denying work deliberate in anything they did up well i'm not sure if i can completely agree with that judge in that prior to this lawsuit being filed the compliance waits were extremely low even after the district court judge in two thousand  point in these two cases they both reference alternatively mandamus as a remedy and a p a actions as a remedy in the context of art of petitioners or plaintiffs in those cases arguing that the agency's would or the court would lose its jurisdiction to take action if it didn't do so within a time period that didn't order restitution within x days and the what the supreme court was saying was that the remedy wasn't that the agency or the court lost  but it lied in mandamus or a p a to compel action within those time periods so in that case i think we really are i'm square with the those two supreme court decisions which i know that opponents don't even address in the it may be a little far that i when i was asking it very direct because it seems to be somebody is going to answer i'm still asking the questions i've got to make this so we both are asking  address this that is when there as a regulation then the agency can be compelled under the a p a or mandamus when there's a mandatory duty or a right that's created that benefits individuals they can be compelled to follow that  i don't think they're addressing the specific statute so this is a a more general concept that the agency is able to create regulations that that are bowing to specific question if i understand correctly he's saying  considering this because these are private parties and they're challenging an agency action and the statute has no private right of action there where we hear well this goes back to what i was trying to answer with the coo khana decision which i think is the most on point supreme court case that the statutory provision is not implicated because they petition the police are seeking an foresman of a regulation it interacts with the a carty doctrine because that recognizes the regulation can be different and stricter the regulation is different from the case law perspective than a private right of action in quotes i think that's right so where we all of them come in that if i read alexander versus of all if that's regulation doesn't provide the private right of action and at that point i have to look to the underlying statute term and whether there is one or not and if i look at the underlying statute that says you don't have one of the underlying statute provision we have to look carefully at the language it says that enforcing this subsection is not permitted doesn't say the subsection or any other regulations promulgated there under again that is really the issue that was in common as well so for example how does that play out if this subsection also includes the requirement that the agency adjudicate all asylum applications within one hundred and ninety dollars days this is the backdrop for this regulation right assuming that everybody should already have a decision on their silent application  courts on the district court level have held that i can't sue under mandamus to argue that i that to argue that the agency has to educate my individual asylum case within that one hundred and eighty period but that's distinct from any other regulations that might create some right so terms of the process of the trial my hearing etc those rights can still be in force and those are enforceable through the a p a that's your position now you want to turn to the track factor analysis as well and i think it's really important to highlight as as we heard in the prior case the this standard of review that this court is using to review judge roe bartz detailed decision and track factors in the alternative so as this court has noted this is for abuse of discretion we're looking at whether or not the district court's decision was illogical impossible or without support in the factual record and here the district court took appellants arguments as to resource constraints the arguments they make today and gave them full weight said even accepting those arguments on their face and assuming it weighs against an injunction i'm going to weigh the other track factors and look at the perp and language of the regulation as well as the health and welfare benefits and on balance i would find out if i applied the track factors that it weighs in favor of entering an injunction now here appellants on aren't arguing that there was any factual error in the district court decision they just wish that the district court had given their factor all of the weight and discounted the weight of the other factors that's not abuse of discretion that is not illogical impossible or thout support and i don't think they really suggest that in the briefs do you do you take issue with the government's rate of compliance at this point you may have before where we are today do you take issue with that no we do not after this after  to resolve a couple issues and to make sure this implementation plan would help the agency comply with the regulation and at this point we haven't gone back and argued that they're not in substantial compliance with the with the regulations as their numbers reach you know near modified the injunction to take into account the compliance rate what are we talking about here if the appellant to agree to continue with this implementation i agree this matter is is effectively  resolved it is not moot though because we still have individuals who are benefiting from it of course of opponents have noted they have no idea when the regular if and when the regulation is going to come into effect when it does they can go back to the district court and as the district court did before they can ask that the the the injunction be be modified we have expect even if the regulation changes it's only it's only so as to be prospect of it's not going to apply retroactively according to the proposed happy with their work so if they agreed to continue to follow the implementation plan and we could leave it with the district court to modify the injunction as appropriate if the law changed then i think that  have would have no issue with that and we did not file an appeal in this case of the district court judge's decision now i would just say on this resource constrained argument not only did they have a full and fair opportunity to bring this bring all of these arguments up in district court we had oral argument we had crossed motions on the issue the we also actually disputed that there was a resource allocation issue that is that  agency is is able to comply with these kinds of deadlines when it when it has to we cited a number of different cases to that effect it has legal tools to address cases where there is going to be a delay where it has a concern about and in an individual the regulation at far one or three point two allows them to stop that thirty day clock and ask for more information if they need it they need more records more information they don't run afoul of the regulation also we've been posting these actually been dropping this year so we're about twenty percent last less than the year before so to the extent that the agency is now making any new arguments or any any new facts about how it's difficult to comply or it's causing  some resource allocation issue we think not only did the district court address that but any new facts need to be brought back to the district court to argue to modify the injunction if there's some issue with compliance now rather than raising that in  the st instance with the court of appeals i mean really this is a case where the district court did not tell the agency how to allocate its resources it was not micromanaging how the agency would be adjudicating these individual applications it was merely directing the agency to follow the clear mandate of the regulation and it was a regulation that u s c i s created and for that reason we argue there was no error in the district court finding this meant this regulation created a mandatory duty shall must is the language that we used and in light of the fact that the agency was not complying with the regulation even after its initial decision in two thousand and sixteen providing injunctive relief directing the agency to follow  here correct you have a situation where the government is almost in full compliance with the you're going to change the regulation in any event you run the prospect if we continue with this of having a written opinion that decides these issues entirely against you i'm not saying that's what's going to happen just that argument oh that could happen you want to continue with this you want to settle it leave it to the district court to micro manage anything of it needs to be done you want  proceed with the appeal as you have made it so i just don't have to talk to the agency of course but i but you know this might be appropriate situation where some type of mediation might be appropriate i don't have like to talk to the agency but by i thank you for sharing those nothing in this subsection shall be construed to create any substitute for procedural right or benefit that is legally enforceable by any party against the united states or its agencies or officers or any other person we now have a situation where if someone applies for employment authorization on time thank you and you know bisons my feeling thanks to all counsel for your helpful arguments we appreciate it and we'll look forward to when lest we hear from you fairly promptly we'll assume the answer is no and we'll proceed thank you ok thank you very much