good morning and welcome to the th circuit judge kristin and i are also very happy to welcome our colleague judge harbaugh from the western district of missouri sitting with us by designation have a number of cases submitted on the briefs this morning we'll hear argument in j m c b versus wealth and you may proceed the district court judge adopted the findings and recommendation of the magistrate judge who stated that any amendment of plaintiff's complaint would be futile appellant should have been afforded the opportunity to amend their complaint to state a claim that the rescission ok thank you what would you address the obvious question that we're wrestling with and that is on the complaint as stated in what relief do you seek that could still be granted in light of the rescission in light of the rescission i think the relief could be granted in exactly the same manner that the th circuit allowed dr recipients to challenge the rescission of dhaka and continue renewing their doc work cards or employment authorization documents while that litigation is pending but i that's not what you asked for that's so that's the kind of collision i'm having between the complaint which is asking for specific relief for your client which i understand obviously is your ultimate goal and now you're telling me about something about the whole entire program so is there anything in your complaint that would give you the relief that you want dissimilar least situated wasn't just kristen i think the program is very similarly situated i think that the department of justice argued at the th circuit that the injunction by the texas court was overbroad and should have been limited to just the state of texas or just the th circuit and therefore the right to apply for the work card existed for any data eligible persons in the other forty seven states other than the th circuit and because of that eligibility to apply for the work hard they should be able to pursue a suit for the rescission of doubt and amend their complaint so that they can do so so they would be able to in effect you want them to be able to apply for a program that no longer that right i would like them to be i would like them to be put in the same shoes as the doctor recipients that no problems forgive me for interrupting right there that's the problem the doc recipients were were recipients they were the program was up and running right now to go back to judge mchugh and point the doppler program was announced and i think never implemented correct correct so how do you get to a place where they're in the same shoes because the  because the injunction was overbroad these these eligible persons should have been allowed to apply the only reason that the doctor recipients are allowed to renew daca and that other wise  persons are not allowed to apply for initial doctors after the rescission is because they had their opportunity to apply whereas the person's never had their opportunity to apply so it just picking up on your point  that you made a minute ago which is that i think what you're really saying is that the injunction that was entered in texas should have been limited to yes correct ok and if we could rewrite history and that injunction had been limited to texas your clients them would have been in a position to apply exactly and judgment point is this program doesn't exist anymore correct but the way they outlined it would they be applying to we have to look where they would be if they went back to where they were what would be available to apply to i think they can the court can order immigration to accept the applications under the old doppler program as as it should have existed  and issue three year work cards under the data program much like this government would say that the docket program has gone what are these dhaka recipients applying for and there were newell's were that well they're applying for the program that existed argument is i forgive me for interrupting but they they have an argument before talking about regions the folks in the dock out program have an argument about whether the whether the new announcement terminate the program is arbitrary and capricious right correct the program existed it wasn't permitted to to to initiate because of the injunction but but my clients applied for it while it existed and and they were denied  based on in my opinion the reliance on the injunction they were denied their job applications what's led to the lawsuit that brings us here today did all of you are all of your clients similar situated that they applied and they were rejected they are yes i think there may have been two that got receipt notices seeing immigration as has received and is processing their case i think someone may be in the mailroom didn't understand what it wasn't just as it pending still we would need to if you were to amend your complaint and you were successful then you would be asking that a corps to order that this program continue correct do you have any authority for a court doing that where the program has actually been rescinded by the government i do not your  r but i am again being new territory yes new territory new president but i am i am basing this on the department of justice his own arguments that the th circuit or the  texas district court's injunction was overbroad and should have been limited to only texas who showed that they could potentially suffer injury texas would sever injury through licensing fees and that is also  self inflicted injury because texas doesn't have to charge licensing fees the state of oregon wrote and and stated they would not suffer the same injuries so my clients the appellants have their rights were not represented in that in the proceedings in texas and in the th circuit and because because their rights were not represented there they have the right to sue here in this district in this circuit thomas and to support the idea that appellant's cannot amend their complaints through briefing or oral advocacy yet in thomason the court below granted a motion for judgment on the pleadings with leave for plaintiff to amend his complaint whereas here the findings and recommendations stated the appellant's case should be dismissed with prejudice for lack of subject matter jurisdiction and appellants had no opportunity to amend their complaint this court should remand to the district court to allow appellant sleeve to amend their complain so let me just make sure i understand your argument then in order for us to do that in light of the fact of these pending issues we need to know that there is there's not futility in amendment so would you mind just repeating again what would be the new claim you or the amendment you would make right the amendment would be that instead of seeking instead and this injury is ongoing because it started with the rescission of this new injury started with the rescission of and it has not terminated by the government's action in fact it is ongoing for the rest of their natural lives because they would have held social security numbers even if the government rescinded the properly non arbitrary non caprices manner in the future those social security numbers they could get with the work cards would be valid for the rest of their natural lives and so this injur ongoing for the rest of their natural lives  there were also arguments about the uniform application of immigration laws i'd like to point out that here in the th circuit as well as the six circuit temporary protected status is recognized as a lawful admission and this has huge consequences in immigration law because a person with lawful admission and a child u s citizen child over twenty one can apply for their green cards here in the united states their process called adjustment of status whereas had they not have that lawful admission they'd have to go to their home country through concer processing to get their green card and if they did that there's another law immigration and nationality act section two hundred and twelve dollars a nine b states that if they've been here illegally for over a year and then they leave they can't come back for ten years so the th circuit already ready recognizes t p s as admission and applies immigration law differently here another example is administrative closure the board of immigration appeals and former attorney  general jeff sessions limited the immigration judges ability as nationwide to administratively close and manage their dockets administratively closing removal cases the th circuit recently overturned bermuda's kota and allows administrative closure again in the th circuit so we do not have there are exceptions to the uniform application of immigration law and i would like to reserve the rest of my time you may thank you good morning and may it please the court thomas pullin for the government here in two thousand and fifteen a district court in texas preliminarily enjoined the department of homeland security from implementing any and all aspects of the dot the policy that injunction was affirmed by the th circuit and by an equally divided supreme court in two thousand and sixteen after the supreme court's decision the plaintiffs here applied for when their applications were rejected they filed suit as the court noted the sole basis of their claim was that the department violated the a p a by denying their applications on the basis of the texas injunction but the secretary of homeland security has rescinded the docket policy and some time later the parties to the texas lawsuit stipulated for dismissal in the p i was dissolved the district court correctly held that this case was moot and their complaint should be dismissed for lack of jurisdiction the government asked that the  court affirm that ruling i'd like to respond to a couple of specific points that the plaintiffs made if i could they were furred below to a motion of the denial of a motion to amend the  on page thirty one dollars of the excerpts of record he says he doesn't say broadly any amendment of the complaint including joined or are joining of the additional plaintiffs would be futile in that district court of the district court said that the motion to dismiss was granted and plaintiffs motion to join additional parties is denied so it seems that the focus what the courts were looking at there was whether it would be futile to add additional parties to the  the excerpt page again because you know how we always get things number two or three different ways i'm just having trouble finding where you know of course so the district courts ruling i believe is on  lawsuit but i think the analysis would be different the as the court pointed out in regents for example one of the reasons why it said that the rescission was reviewable was because it was based on a legal conclusion that the doppler i'm sorry the doctor program was unlawful the court specifically contrasted secretary duke's rescission in that case with her acting secretary  of a number of factors including the preliminary injunction in this matter which had been again affirmed by the supreme court the fact that dot but never took place new immigration enforcement priorities that were outlined in an executive order president trump and he said he carried out the rescission an exercise of my discretion in establishing national immigration enforcement policies and priorities this court in regents contrasted secretary dukes again this is not the government's position who just pointing out what the court said said that acting secretary duke had used different language she said based on my i believe authority and the court took that so that was a very significant difference that she wasn't actually acting on her discretion she was based on a legal conclusion so these programs would face very different would present very different considerations and i think one indication of that as this court noted the doc policy had been implemented and many people had received deferred action under that policy when my recollection and i apologize i don't have the set my fingertips but my recollection is the injunctions in the california new york litigation required the government to continue processing applications for renewal under daca but did not require the government to accept new  applicants so that's another way the question would be obviously you're arguing what might be the merits of a claim of an arbitrary and capricious that we have not seen that you haven't seen but in the abstract right and then trying to compare it to regions but i think than one issue the only issue then we have to consider because council has candidly acknowledged that as far as relief under the program there is no program right now so the question is was the district court correct in saying that in accord with the magistrate judge's findings in the amendment would be futile well it's not it's not clear to me that what the district judge had in mind the district had in mind was an amendment of the substantive complaint as opposed to a motion in front of me because i don't think this was the actual motion that they filed don't believe this was raised in their brief right now but i just based on what the district court seemed to have in mind in the docket sheet it seemed that the district court was addressing time regardless stand but if they if they went there let's just say they could have filed a new complaint but why couldn't they have amended that complaint to bring that claim why would that claim be futile is what we're trying to ask  i think you have a very persuasive argument that the that the argument they're trying to make today wasn't in the complaint right and i'm going to give you because i haven't checked it but i am certainly you know willing to assume for purposes of this hypothetical that any request to a man was a request to add parties would that have been futile i'm not sure that it would have been futile well i should say i think the government's position is yes it would be futile based on similar arguments we made to the supreme court in the dock of litigation which is that the this rescission such a rescission would not be reviewable under the e p a because these matters are committed to agency discretion i think if the court is inclined to telegraph a punch i'm just trying to figure out whether or not your position is it's futile whether there's a distinction between because one difference does seem to me to be striking and that is that wasn't ever launched no that's right it's no program and i'm just trying to tease out does that make any challenge necessarily futile i'm not sure it does because it was the program was announced and then rescinded but it does seem to me to be pretty tough sale to say that the that the folks are similarly situated and i think that's right and i think ultimately our position would be that it's futile i just apologize i don't have more of my fingertips now but i will point out in terms of the injunction that they would be asking for certainly believe that that  would be futile because they would be asking a district court to basically issue a conflicting injunction with essentially with with what the texas injunction was now technically that injunction has been asking basically be asking for conflicting rulings and in that case i don't think it would be appropriate for a court here to order the government to do something that it was ordered by another court to not do o that was the effect of the circuits ruling that it was unlawful from its inception and the government was complying with that injunction and what the brief talks about is where we seem to have you know changing positions here but the brief talks about going back to the district court and saying the district court could have enjoined the rescission there by mr gonzales his client's application and the issuance of for example a social security number would have proceeded i don't know then what would happen because the government has rescinded the program but that's i think what they argued in the brief about today they're saying well that the that they should be saying that the rescission was arbitrary and capricious in the brief they're saying that the court could have enjoined the receipt that's right and i think that i mean that's an injunction that i think just would not have issued based on at a minimum principles of comedy  because it would it would subject the government to directly conflicting injunctions you know at the time i ask it a little different question if they if what they asked in the district court related to adding new parties and that's what the district court looked at and if what they're asking now is different so now we have a different idea of what how it could be amended what's the government's view as to whether raising a potential amendment on appeal is sufficient to overcome a futility finding by a district court i don't have any any case law at hand  m c b and others could actually go out today and file an independent case challenging the rescission of the program as opposed to their particular claim scores that this is not how the case was litigated and briefed up to this point this is actually a very different request and it's quite common i think when a court when a district court dismissed as a case is moot and the parties pop up and say well wait we could have done this a court says well that's not what you asked for in fact this court in mcauliffe graber that came up the petitioner there said well i now and so i think that the most appropriate solution here is to affirm the judgment that this case should be dismissed as moot thank you thank you very much let me ask you apart from the filing fee would there be any downside to just going out and filing a new case with the new claims that you've explained to  us i i don't see any downside other than we've already got this case pending and again the district judge relied on the findings and recommendation of the magistrate that said any amendment i agree here and i don't know that we've ever impose that kind of duty on a court and district court well just mccune again there was a motion to amend pending that was never resolved until the motion to dismiss there was no hearing on this easily confused with one request right which would have been to force the government i guess i can use that for to to process the applications as opposed to what you're talking about today i think for the st time which is an amendment that would call upon the government to not rescind the program entirely is that right that's correct and again i'm bringing forth this point based on the briefings  the government in response to those briefings so that last argument we do you know we all know the law about liberal amendments to complaints but that's what happened in the district court is there was is there any where it's not a trick question is there anywhere in the record in the district court where your pleadings or your motions asked the district court to man for this reason no there is not yes so one other comment i'd like to make is the it is nonbinding precedent the th circuit injunction was affirmed by an equally divided supreme court which has no presidential value that decision the th circuit is nonbinding also that injunction that denies the works the supreme court the lower court decision is then firmed basically and that's the binding decision right that's correct but but again these parties rights were not represented in that litigation there enough so deferred action and is a practical consideration if there are eleven to fifteen million people in the united states illegally dapple would have covered four million of those people  that the government deports between one hundred and two million four hundred thousand people a year it's going to take twenty seven dollars and a half one hundred and fifty years to deport every one and these are the last rd of the people that they would deport it's going to get take eighteen to one hundred years to get to these people we rest are you saying that they obviously they would be advantaged if they had a social security number and that kind of regularity and be able to care for and provide for their u s citizen lawful permanent resident children and they have no crimes they are not high priority all of the new removal cases we get in our office come from the criminal course they come from the jail system so these people would not come into our office saying i'm being deported now for the next eighteen to one hundred years so it makes practical sense to give them work cards social security numbers at this point thank you thank you thank both council for your briefing and your argument and thank you for coming to seattle today the court is a