thank you can everybody hear me ok great i want to thank you both for being here under these difficult circumstances e really appreciate your assistance i'm sure you've already been told this we will try to remember to raise our hands when we have questions so you'll know that we are trying to interject and we will try to make this move as well as we possibly can i want to apologize in advance my lights in here on a motion sensor if there comes a time when i stand for those reasons this court should reverse the lower court order the agency to provide an answer and allow us to provide a record and allow us to engage in dispositive on the administrative procedure act st the lower court determine that it does not have jurisdiction over the appellant's claims for pre waiting list work authorization because it agreed with the agency that the agency has discretion whether or not to implement a statute that provides specific eligibility criteria for a benefit as noted in the case out of the eastern district new york rodriguez there is no support and jurisprudence for this position an agency cannot simply decide to not implement a statute for eligibility for a benefit simply because it doesn't want to if congress wanted to give them that discretion they could drop the term the statute in term so that there would be no just a shovel standards for the agency to make a decision and trigger the exceptions or the administrat kid before i appreciate the argument on the discretion but i'm just trying to get organized with respect to the causes of action and and it actually helps the way you're saying it with respect to pre waiting list work authorization what my question is does that category pre waiting list work authorization only applies to counts one in two or does it apply to count three as  withhold agency action and so the mandamus claim and the unlawfully withholding claim kind of merge and you see that in the rodriguez decision out of brooklyn your honor the court noted that it would be satisfactory to of in the alternative for you right it has to be one or the other i mean they can see couldn't be doing both at the same time could it it's unclear at this point your honor because we are at the rule twelve stage i i  think at this point they are alternatives but i think if we win on one we went on both simply because and again i'm only talking about the pretty waiting lists work authorization claim the we don't do this and so if my clients are entitled to a decision on their applications for creating those work authorization i do believe the agency has both unlawfully withheld a decision as well as on really unreasonably delayed it because they would be pending for the same amount of time as they're waiting list requests which is in between three and five years but i guess i would the cause of action especially supreme waiting is work authorization may be redundant although they do seek i think analytically to remedy different harms and again i would urge the court to look at the analysis and rodriguez where the court basically identifies the questions i think that judge quite a bomb and you just hairs us that it's fair to act with respect to a discreet action that is required to be taken and maybe it's the same question that they're asking but what is the discrete action here and then can you explain where i look to see that that discrete action is itself required under norton the discrete action is them to make a decision on the pre waiting list work authorization request let me let me back up application is presented to the agency they must act within a reasonable amount of time and that's the st piece the discrete action you say that the applications in this particular case and tell me the nd part again what is it that they're required to do they're required to make a decision on the work authorization request and i think that obligation comes from two different places st it comes from the a fifty five b that requires any matter presented to an agency to be decided within a reasonable amount of time and secondly for people who applied prior to january th teen the agency had its own implementing regulation twenty six all of the applicants have two thousand and sixteen dates or earlier and so the moment they sent them their work authorization request on the face of their you status application a regulation was in place that required a decision within ninety days and if they didn't make a decision within ninety days the penalty was they had interim work authorization for two hundred and forty days after january of two thousand and seventeen that regulation went away however for twenty six thousand plaintiffs that's another indication that the agency itself impose this obligation for any work authorization request i would also note that this obligation comes from legislative history your honor if you just take a fifty thousand foot view of how congress has manipulated this program can you ask a follow up to that and then you can go back to the budget if the secretary and i get this is a hypothetical right but if the secretary had that at some point during that then the exercise of my discretion because i believe it best for the country i am not allowing the approval of pre waiting list work authorizations would that be reviewable in your view is that would that have been enough in your mind to render this unreviewable and if if not why not so i think it is two different issues there's the question of whether they have discretion to implement this or not and then they have discretion whether to actually grant them or not we do not dispute that the agency may find a reason in a particular case to say yes you have a pending bona feed it i understand owns explain it but it answer the hypothetical st and then and then go into it my question is reviewable no you described that as a vision on the merits of the application not a decision to implement that statement would imply they do not have discretion to refuse to implement the statute but they are exercising their discretion to say no and saying there's no d such thing as a well you might be sending a bone to feed a but we're going to exercise our discretion under the may grant provision to establish a blanket rule now whether that blanket in your view that would be  general policy of denying all of these applications would it be reviewable under sort of regular arbitrary and capricious review like with me to be an explanation or not well  believe you have to have reasoned decision making no matter what and that if the decision to not have a reasoned decision making then the agency couldn't argue that even exercise discretion there wouldn't be sufficient decision or a record for the judicial secretary didn't say anything but but now tells us that that's affective lee what they've done we in our discretion we are not implementing this why should we assume you want to assume that the secretary believes it doesn't have the authority as opposed to just chooses not to exercise it and so i've got a little trouble understanding why in the face of silence from the secretary we should assume the worst as opposed to assume what seems to be accurate that the secretary and her discretion has decided not to grant pre waiting lists authorization appellants are entitled to a two action there's been no action that's all we're asking for in this case your honor i think that's different is a very big difference between the late cause of action and the denial cause of action if the if the simply done nothing and the burden is on the agency to demonstrate this is what they've done they can't simply receive an application and do nothing with it that's that's that's the whole point the five and they don't respond as frankly they probably should do i have a claim against the r s for failing to take action omagh request for a one million dollars i think i think you have a cause of action for unreasonable for what regardless of the merits or potential merits of the final agency action so even if it is if it is wholly baseless your view is that you have a claim that the i r s must take action because they're required to take action on any requests your honor i think if they accept the request because all these and again maybe this is a difference when i already know that is what you give a i'll accept the request or just opening my s request your honor all these agencies have the ability to simply reject something as improperly filed and baseless and the yes is no different right that's that's why the language pending a bone a few days is so important here if the agency simply rejects you status applications with a work authorization request because it didn't have the signatures or there's blatant fraud on the face of it are they just rejected for sending to the wrong service center that's agency action but if they accept it and do nothing with it then the burden is on them i mean how much of your answer turns on the existence of this statute and i'm trying to come up with a hypothetical to go along with judge richardson's hypothetical so if congress passed a law saying you know in light of this pandemic and the unemployment the i r s may consider early claims for refinance and then someone sent in an early claim for a refund and then the i r s said literally nothing not i'm denying it not i'm granting it not i'm issuing a policy statement about how we plan to use this discretion just dead silence then would there be a cause cause that seems like more like what we have here i think you have a cause of action for an unreasonable the way and depending on the specific circumstances of that request and viewing it through the track factors the agency may or may not be able to justify their reason th it may be reasonable it may not the case by case analysis and the agency simply refuse to doing gauging that type of analysis from you status world and i see i have fifteen seconds left so i'll just try to pivot to our other primary and fourteen point one four i think it's d two you know these numbers better than i do do i read that as saying and if not there or elsewhere that the agency will not as a blanket matter will not grant pre waiting list work authorizations well your honor they free waiting list work authorization is something that the agency did not if if i wanted to see in the c f r or elsewhere a statement by negative implication or otherwise that the agency would not grant pre waiting list work authorization is there anywhere for me to look i regret that i don't i don't know that i could regulation there are several other the two  that's fine thank you i don't know that regulation if that would have done it yes sir but but to follow up on that question is it your position that there is something in the regulation that negative implications says we're not going to grant pre waiting list work authorizations or is that something that has been done silently and is and is articulated now in response to requests like those before  us i believe it's a silence in terms of a direct response to that congress that just recorded correctly determine that congress left this authority to the agency in its discretion about whether you know the government may grant work authorization to any alien who has a pending bona fide application for yes men this year are no on your reading of the statute does it do anything at all or is it purely superfluous because as i read the statutory scheme even before this amendment before p six was passed the agency certainly had the authority to grant pre waitlist authorizations i mean the whole waitlist regime is a matter of regulation on statute so in your view this statute does literally nothing it just tells the times where you will what does it do well i think it might be important to consider the timeline a little bit about just tell me what you think the statute does i believe it then shows that congress wanted to give a statutory authority to the agency but it authority do you think something in the statute before p six was added would have prevented the agency from granting pre waitlist authorization i didn't see anything in the statute that would have done that well i think that it certainly g agency the authority it is to institute the regulations which it did but if someone read it is it your suspicion that before subsection p six was enacted the agency could not have reviewed these applications for work authorization until someone was on a waiting list that is nowhere mentioned in the statute no i don't really i don't know for sure that i can the case all right so the agency already had the discretion to do this so what does the statute do it certainly should i think your answer is the statute does nothing but you should probably just you know own up to that well i don't believe there's i mean the statute certainly says what it says and i don't believe that we get a congressional intent without reviewing the lake which of the acts of the statute itself i know and i think it's i'm and i won't ask again i promise but it would be helpful to me if you could explain what you think this statute gods what i can impact it has it's not like congress just wrote a letter like sense of congress hey agency here's something you might think about what i think that they've they gave the authority specifically to the agency to do this i think that they there was certainly a gap filler in case the regulations changed i think it was clear the congress wanted to make sure that the agency could do this but this was this amendment was added right around the same time and waiting list regulations were put in place and the congressional world yes your honor can i ask a prefatory question to that was there specific authority for the agency to grant waiting list work authorization prior to p six when i look at the the federal register in adopting the waiting list work authorization they rely on the agency's otherwise undefined inherent  authority they don't point to any statutory authority for doing so or specific special story authority is that is that accurate you know whether the waiting list authorization had specific statutory authority or whether it was merely based on authority it was the latter your honor it was a search that centrally that agency had the authority to institute regulations and it did so in an effort to mitigate against the foreseeable future of a symbol of a low cap on you pieces resulting in a quite a bit of overage over ten thousand now and that was in two thousand and seven when the agency answer to this regulation and said we will create the waiting list the sort action and by virtue of the deferred action you can receive employment authorization at least in a request it now and then and the point is that employment authorization as part of the waiting if the agency chose to do that it would write the steady permits it permits it certainly and of course yes your honor so i'd like to ask either about the jurisdiction specifically that limitation i think it's very clear that congress does not want courts to have authority to adjudicate disputes review issues that they've specifically devoted to or committed to agency authority an agency discretion and now i will point out that in that there's a case out of georgia specifically says that the statute clearly unambiguously uses the word may that's it the secretary may grant work authorizations that it's clear the secretary could grant plaintiffs work authorization if that location is bona fide but there is nothing in the language to suggest that he must nothing honestly fear would just simply slow down everything even further then we have a week the course the agency could do that is exactly what discussion is now here but yes if i could yeah i don't think i think probably everyone agrees that a decision on any particular applicant is discretionary i think you hear our question is whether the decision not to consider pre waiting list you you it would be your position that does not apply to us here can you explain why well the agency here it's not that they are precluding anyone from getting pretty you visa work authorization that's the difference here is that the  in this case this very short briefs on statutory language doesn't mandate anything different than what the agency is actually already doing in order to mitigate against delays now there but it may be but the if if the reason it's not the reason the agency isn't addressing pre waiting lists authorizations is because it's decided not to categorically or programatic why is that not reviewable under casa de maryland well the i mean i don't believe that the agency has articulated any sort like we've discussed before now every viewable sort of decision about that that they've isn't that the problem i mean usually when an agency makes a broad programatic discretionary decision they explain it so that we can review it to see whether it's arbitrary and capricious i feel like it's it the answer to why shouldn't we review it for arbitrary and capricious can't be because the agency made that impossible by not explaining itself that is what i am have i just my concern about this case is that i am reading in briefs what the the reason the agency has done what it's done but we've held you know not a number of times that we can't we can't go based on litigation documents and briefs that we're supposed to there's supposed to be some kind of a policy statement or a guidance statement by the agency and an explanation for the agency's decision even assuming this is discretionary that the way in which the agency exercise its discretion is explained to us and we don't have that here and i'm just finding that to be a frustrating thing about this case well i understand your honor but in those cases where the program matic just isn't making it's reviewed it's typically when it when congress has made it clear that the agency has to do something and here th didn't make that clear they said you can do is the new house did in maryland it was an enforcement decision and we've you know the law enforcement decisions at that is that those are the most discretionary things in the world you never have to enforce the law against everyone and even there we said look as the judge in this district determined that even if you were to decide that there is jurisdiction to review this under what you're discussing it ultimately end up in the same place that the will book book it will be do you go there i mean the point of those cases is casa recognize was those are cases where there is not a jurisdictional ball our own reviewing the reasons right the point here is that if it's discretionary programatic but the threshold issue that you've got correct me here is is that you've got to st ask whether it's discretionary if it's discretionary it matters not whether they give reasons or not that's a twelve fifty two bar is that right yes that's exactly right and this court in roland already decided that threshold legal determinations prior to the exercise of discretion is with is outside of the court's jurisdiction and roland speaks exactly t about these legal determinations before discretionary the weighing of the discretion and anyway what i'm sorry say if you think what is the threshold legal issue that's here fundamental adblock question i'm having trouble with the will can't be right that every time an agency exercises discretion that's non reviewable because all we do when we do arbitrary and capricious review is review exercises discretion that's what it is the agency has exercised its discretion and now we see whether it has explained its decision so what is it about this exercise of discretion that makes it a non review guessing a statute that will ultimately get into the weighing of the factors that would weigh in favor or against a positive exercise of discretion that is with outside of the court's jurisdiction even if the natural thought would be oh said that only constitutional or legal challenges and raised in a removal proceedings essentially that is the only time you can review these and essentially it is a great deal of discretion that's granted to the agency but that is exactly what it is that the agency has this authority because they're the ones that are trusted to be sort of the experts in the field that they know what they're doing and if if you reach you know when the when the discretion is exercised they law i'm more familiar with that and those situations even if the court were to just say this is this is seems wrong this seems unfair this seems the agency and the agents within it are the ones that are vested with the authority to do the weighing the discretion and want to statute clearly says that and the agency hasn't implemented any sort of specific a separate program matic plan pursuant to that statute question which is about counts one hundred and twenty three and four was put before us saw i why why did the government not seek to dismiss count three for lack of jurisdiction on the same basis that it moved to dismiss counts one in two because it too is a pre waiting list work authorization klein my reading of cause of action three was the broad like any sort of employment authorization request and that could fall under the when you get your u v set when you get deferred action by virtue of the waiting list or before that so i guess i simply felt that when i read it my natural i didn't think of it being combined with one and two but obviously perhaps that was a mistake but i that if you assume we have jurisdiction the only way the plaintiffs can get relief is by some brawled declaratory relief or inju relief or class action type claim is that is that the effect of your position and i assume from what you said i can answer past my time but i would i would simply say that i'm not going to suggest that the the right vehicle to challenge the use of process because it is quite it's a very important program and i will say though that this isn't a class action this if it's a program addict type you know decision well i would certainly i wouldn't think so but i mean if the plaintiffs advanced someone advance a class action that their response would be different i mean once again you'd have to look at all the things that would come before you start a fire class and you can address how it is so i think here that the agency as i as we've discussed they or as you mentioned there isn't anything different about these plaintiffs from many many other people including the people i had of them in line and i want to make sure before i get stopped before my argument is over to clarify something about if the court would allow this these three or four complaints to proceed as you are aware one of the plaintiffs has already received waitlist placement and employment authorization just as it naturally would if they're eligible if the person is eligible as a is a question because and i know we're running you over time i'm thanking indulgence from my colleagues because this goes to one of my concerns about the merits argument is this solis case which i assume you're aware of and the government has chosen to appeal in that case i think it originally noted an appeal and then withdrew it and so in this case you know was the exact same set of claims in the district court let it go forward to discovery and then after discovery you know made a decision that the government had not been able to substantiate any of its claims that it lacked resources that there wasn't enough time and also in this is you know going directly relevant to what we're talking about that there would really be any appreciable impact on other people waiting in line that in fact they could go ahead and process these allegations in a written you know they were big they were effectively already processed it took fifteen months to process an application and all the time after that was unnecessary so it really wouldn't make any difference to anyone else and so and the government's not appealing that and so i'm struggling a little bit with how we could hold in this case that without any discovery you know we're confident that the government's assertions on this are right that there would be an impact on other people in mind that this is a matter of resource constraints and that there just isn't enough time to do this for everyone when i can't speak to i didn't l nefarious simply that the government obviously made a decision it was going to live with that result and so i guess i don't i don't know how i'm supposed to work around it now well the cases i will say st of all as speaking for the other people that were in line ahead of the plaintiffs is a least they might have seen a difference they really might have said you know that actually does matter to me that person just got to go ahead in line because they had the wherewithal to file a lawsuit and so ok i  mean i think that's a little bit inconsistent with the district court's findings about what the government can substantiate on the record there but that's ok i'm speaking more of the matter of principle your honor that this is about there is a queue there are two specific exceptions that are publicly disclosed about when the agency when u s c i s might adjudicate or review for weightless placement earlier than the q and r l side of the natural direction and when someone when you've been waiting in line and you don't have them and the wherewithal to follow a lawsuit and someone who does gets to get their work authorization of thing before you i can imagine that would be very frustrating yes or so just understand in in so and i may not understand the could do things differently it would necessarily affect everybody in line but as a practical matter it did because those five got on the waiting list and people that didn't file the suit did not get on the waiting list that seems like  the point of the track factor which is i think separate from what the soul is determination of what the agency could do or could substantiate that they were unable to do as opposed to what they were actually doing in that the distinction between those two i believe that's correct and what the the point about the the reason i mention i guess i should before i get ahead of myself  difference amongst the petitioners for this that unfortunately have all been waiting for quite a while i'd understand that but the point is that all immigration benefits and this is just a bottom line sort of point all immigration benefits are or none are a matter of right correct and so when you say that the agency isn't giving you something that you think you deserve your st of all there's a presumption here that you're going to be approved and that's certainly not the case all of the complaints about delay a lot of them relate to the assumption that you are going to be granted this and that the agency has no essentially has no place in this review process they're going to review the substantively to make sure that everything is exactly the way it should be that the person eligible just to summarize that and in reviewing these applications or petitions if you will adding a speech to the the section subsection p six point having a rd layer of review as be more and more lawsuits about this sort of thing when the agency is moving through these as well as it can with what it's dealing with and that is the you visa is a is a free petition there's no charge to file it and even if that agency were just begin to charge relates to the previous ninety day time requirement and and i have two questions related to that the st is your position that that applies to these plaintiffs on a math think i understand the logic it was in place when they applied it was changed after the fact other than that logic is there any authority that has indicated that the two cases to address that question directly are rodriguez and believe that's the case law out there the actual regulations no there haven't been any and those are guys are those are two district court cases correct that's right eleven from brooklyn one from disk of south carolina ok and let me just follow up then with one other question assume for the sake of discussion that the ninety day time period does not it requires any application presented to an aide to be decided within a reasonable time three years is not reasonable to make a ministerial decision on work authorization that the agency published and says it takes in twelve minutes  and so we look to the general provision of the a p a stand for i think undisputed case law that the agency doesn't have discretion to not make a decision doesn't have discretion to refuse to exercise its  will be granted work authorization right when they're on the waiting list i did it describes that and i you know understand it is not an express statement but that's a negative implication is that that is when they are granted which means they're not granted  agencies act with knowledge right and so they're now aware of another alternative and they've continued to rely upon the regulation that existed i think the proper presumption to apply here is that congress enacts and legislate on its understanding of what's already available in the regulatory scheme and again if you look at the overall legislative and regulatory history two thousand we see the passage of the you visas program and we feel of an eighty four p three which is it says the attorney general shall during the period aliens or a lawful temporary resident status under you provide them work authorization that's the statutory hook they relied on for the waiting list decision because that can be ambiguous then i have a two thousand that wa on the right is that in the this is the regulation itself is the federal register regulation rely upon p three i to be frank your honor i don't know exactly where the regulation does it but that's the only statutory authority out sort of the point i don't think they ever alone p three and the point is they rely on some generic inherent authority to do so and then there's specific authority provided and nobody should be surprised they don't go back and change th regulation when the specific authority supports their inherent authority i understand that but if you look at two thousand and eight congress comes in and on the floor of the house they say this is taking too long we're going to provide work authorization for people who are helping law enforcement not when there's a meritorious decision which is what the waiting with decision is but something before that when it's pending m bone a few days it's a different standard the to get on the waiting list you have to be one hundred percent approval and the only thing that's holding you up is that there's not one of the ten thousand dollars visas available that is different in every way and something that's pending a bone to feed and i do believe there's a gap between pending and bona feet and meritorious we can send in an application with all the certifications and everything and still get denied but during that waiting but if but if congress wanted to do them congress is totally entitled to do that but they know how to to require that to happen because they do that with greenpeace they say they shall be provided work authorization and if if the statute said the secretary shall provide work authorization to a bona fide applicant pre waiting then i'm totally with you right but the problem is they know how to do that and they and i see i'm out of time your honor if i could just comment on that i think you're hitting the root of the problematic nature of the rule that the agency is pushing for they want this court to condone the principle that the congress must include mandatory language every time it implements a new benefit for them to have to do anything otherwise we can't come in and having applied for that benefit and say you're not doing that congress told you the congress tells how to do things through by camera lism present and signature that goes back to ins speech there's nothing else required if they want to draw the statute in such broad terms no just  civil standards they can but they don't have to and they didn't hear they provided plain language meaning that the courts defined in several different contexts pending and bona feet and the agency is simply claiming discretion to ignore what congress is told to do and bob's point of cosseted maryland this isn't even enforcement they don't have a claim of prosecutorial discretion here this is a pure benefit created by statute to protect and help law enforcement as well as the people who are helping to assist think it's kind of the answer i just gave this gave the agency the ability to remedy the problem congress saw congress all the problem as and again i think a court in the brief represented guns that it's taking a year for these people to get what they need to live and work in the united states we need to be sixty days we need to strive for sixty days and then they pass the spending and bone a few day language which is not in a vacuum if we look at t v s as we see something similar right at the time they did it the agency had a regulation requiring work the what they needed to live in the united states and to d help law enforcement and get with work authorization comes a social with a social comes a driver's license right and if the other day you just counsel thank you very much this is the part of the argument where we would like to be able to come down and shake your hand that's not happening for a while i don't think we really appreciate your help today and wish you well continued health and safety and i guess