good evening everyone and welcome to the final round of the Ames moo Court competition my name is Rachel Chu and I am the vice president of the am moot Court program on behalf of the board of student advisers I would like to welcome you all to the ases courtroom and say that it has been an honor and a pleasure for the board to oversee and administer this competition we are particularly thrilled to introduce you to the two final teams two teams who have risen to the top of an unprecedented year of AIMS in which a record 54 teams participated congratulations to both teams for reaching tonight's final presiding over this year's competition are The Honorable Justice Sonia s mayor of the United States Supreme Court The Honorable Justice Goodwin Leo of the California Supreme Court an The Honorable Rachel covner of the United States district court for the eastern district of New York our sincere thanks to our esteemed panel we would also like to thank our case writers Joseph pamato and William Bergstrom both Harvard Law School class of 2017 tonight's case turns on the scope of rulemaking authority granted to the occupational safety and health administration by its enabling act there are two questions presented the first WEA 5 USC section 70 62 of the administrative procedure act requires courts to vacate agency rulemakings found to violate the act the second whether if so 5 USC section 7062 violates article 3 of the United States Constitution by requiring federal courts to exceed their judicial power a more detailed case description can be found in your program I'll now announce the teams please hold your applause till the end of all their names representing the petitioner the United States occupational safety and health administration will be the py takamoto mink Memorial team consisting of Derek Choy Canal Dixit Daniel flesh oralist Phoebe kotlov yusi Suzuki and Monica Wong oralist and also team captain thank you thank you representing the respondent federici Contracting LLC will be the judge Lawrence H Silberman Memorial team including Max Alvarez Eric Bush Richard Dunn oralist Haley Eisenberg oralist Jessica Flores captain and Brandon [Applause] Sharp before we begin a gentle reminder that no laptops cell phones or other electronic devices may be used during the competition please take this opportunity to confirm that you have silenced any electronic devices you might have on you please do not take photos during the competition and please refrain from leaving the courtroom during arguments finally following the announcement of awards there will be a reception at the hls pub located in waser Hall we hope to see you there thank you very much and we hope you enjoy tonight's competition [Applause] All Rise The Honorable the Chief Justice and the associate justices of the UN the Supreme Court of the United States O Yay oay oay all persons having business before The Honorable the Supreme Court of the United States are ad admonished to get draw near and give their attention for the court is now sitting God save the United States and this honorable Court Council are you ready yes your honor please proceed Madame chief justice and may have please the court my name is Daniel flesh and along with my co-counsel Monica Wong I represent petitioners OSHA and the Department of Labor I will be speaking for 16 minutes on the jurisdictional and statutory issues Miss W will then speak for 16 minutes on the Constitutional issues we'd like to reserve 3 minutes for autal the APA does not mandate vacer in every case instead it preserves judicial discretion that's what the text of the APA says that's what the structure of the APA confirms that's what long-standing background principles of equity demonstrate and that's what every circuit in the country except the aim circuit has agreed now Council why are we here at all why did you wait till the C position to raise your section 655 F's argument well your honor there was there was a different team of lawyers below we're not quite sure why they didn't raise this issue earlier especially given that this is a glaring jurisdictional defect that is an independent bar to this case and it's worth discussing why uh the district court lacked subject matter jurisdiction and that's something that respondent has actually conceded on page six of their brief because The District Court lacks subject matter jurisdiction the aim circuit could not hear the appeal well but we don't lack jurisdiction so we can hear this appeal correct I but you're asking us to remand this so the district court can dismiss the case or which you don't mention in your brief transfer it to the Circuit Court in the interest of Justice why do we go through that pointless exercise uh a few respons is that your honor first it's perfectly right that as a practical matter this um might not make much difference below but as a matter of Law and of policy uh when the lower courts lacked excuse me a principle when the lower courts lacked subject matter jurisdiction this Court's role is very limited and and that's because Congress defines uh the jurisdiction of Courts when when the lower courts don't have jurisdiction there's no uh reading the te leaves to see what will happen on demand and and there's a bright line rule against exercising the why is the best reading of our grubs case that uh if it's filed in the wrong court but then it gets to the right court it's okay for the right Court to go ahead and decide the case well Justice CER we actually think the grubs case is a great example of this principle in grubs this court found that the district court actually substantively did have subject matter jurisdiction so in other words the uh the case was initially removed from State Court to Federal Court on the basis of the interpeter of the US uh as a party but it was later determined that that interpeter was defective however the court still found that substantively there was subject matter jurisdiction because the requirements for diversity jurisdiction were met here no one contests that the district court simply lacked subject matter jurisdiction not that it was phrased in the wrong way it was simply non-existent and that means that the a but it got to the Circuit Court and the Circuit Court could have been a case where the a place where the case was filed initially right so it feels like it wound up in the wrong in the right form for the wrong reasons like in in the Grub's case well Justice cner that's true and and if they had initially filed in the circuit uh court that would have mattered but the the distinction between original jurisdiction and appell jurisdiction is key here the Circuit Court uh has original jurisdiction and it could have exercised that original jurisdiction but here it would be exercising a pellet jurisdiction which it simply does but their review is to noo is Den noo so what difference does it make it's true it might not make a practical difference but it is it is a central uh principle that when a court guess isn't isn't there just a difference U between subject matter jurisdiction which is the authority to pronounce on the dispute which you don't deny that the court of appeals here does have that power procedurally there seems to be a wrinkle below but that's almost in the nature of um if I might analogize it's like it's like a venue problem which typically is not a subject matter jurisdiction problem if it ends up in the right place it doesn't anull the suit just because you start somewhere in the you started in the wrong place but you end up in the right place where there is a court with authority and there's no claim here that the court has somehow warped that Authority uh by deferring or or applying some sort of um you know uh Abus of discretion standard or anything anything like that so what what's wrong with what happened here well uh justice L I think we'd contest the idea that uh this is a mere procedural defect the a circuit has specific kinds of subject matter jurisdiction it could have heard the case uh exercising its original jurisdiction if the case were immediately filed there or it could have heard the case uh exercising appella jurisdiction if the district court had had subject matter jurisdiction but uh neither of those things is the case and the court lacked subject matter jurisdiction could I could I tie this issue to the to what I think is the principal issue on the merits um the question of the remedial authority of the of the court so is there any um anything special about the idea that this goes to an appell at court uh with regard to the remedial Authority that's available uh justice Louie don't think it affects the remedial Authority necessarily and it's it's worth discussing that that remedial question we think that Congress established this system where the district courts do not have subject matter jurisdiction uh in order to make petitions of agency or challenging agency actions more efficient and more direct and eliminate uh a layer review but uh it is worth talking about the uh merits issue because we think we went on that too and that's because the text structure and history of section 7062 all show uh that vacer is not the exclusive or only remedy mandated in each and every case you can see that first with the text of section 762 APA era sources show that the words set aside which are the operative uh words in section 7062 were used flexibly at the time of the enactment of the APA so in a trio of preaa cases this court used the word set aside to describe injunctive relief I guess the most telling source for me is the emergency price control act right because that's where it's used in a statute it's a big important statute that the apa's drafter would have been aware of and tell me if I'm wrong it seems like courts understood that language to mean set aside is vacer so do do you think I'm wrong about how courts were understanding that if and if I'm not wrong about that why isn't that the relevant um Source Congress would have had in mind no justice Conor I don't think you're wrong I think the word set aside certainly can mean vacer and and that's something we'd like to be clear about we believe that the sources from the APA era show that the word set aside can refer to vacer but also to other Equitable remedies and uh it's worth noting that there are other statutes from that era that use the word set aside to describe not vacer so just in the price Control Act do you think their set aside meant vacer or it meant vacer and also potentially the whole universe of Equitable remedies we we thought the latter Justice governor and it's true uh that the word was used in an uh the set aside phrase was used in a list that uh the statute said vacate or set aside but that's true uh excuse me uh enjoying or set aside but that's also true of the word vacate for instance in the act of June 25th 1948 another APA era statute uh Congress referred to remedies including uh vacer setting aside or modifying so we think that's strong evidence can I uh stop you and make sure I understand your argument um in USV Texas this is General took the position that under the APA 706 and 703 interacted and that a universal injunction was um not permitted by the act at all that basically you could only decide the case on the basis of an order to the parties vacated its parties set it aside disregard it's the position my colleague took in his concurrence in that case and you the other side cited it with some approval so I know you've read it um my question remains you don't seem to be taking the same position am I correct you've changed your position now and am I understanding correct that you are only arguing that judges retain all Equity Equitable remedies including a universal injunction if they find that it's appropriate correct that's correct jar why has the US changed its position uh we have narrowed our position that's partly because of the question presented here that this court wanted to consider on CT uh we think that there is compelling evidence that the word set aside could mean vacer and so so we take a narrower view uh uh than Justice Gorsuch in the Texas case we think that if you look at this Court's precedence recent precedence and the history of the word set aside or or of the APA it becomes very clear that section 7062 is not a Draconian rigid uh Mandate of universal relief in every case so first in three recent cases this court seemed to assume that the word set aside allowed nonactive relief first in cic services this court said that a request for an injunction was quote most naturally understood as being part of section 7062 then in Ling P this court said that the APA that's in all of those citations it's basically dicta and that issue wasn't joined before us so it's not compelling in any way um I agree with you that we've said that but we've never really looked at that issue directly so it doesn't prove your point uh that's partially true your honor your honor we think that there is some persuasive weight because in cases like cic and Bowen the uh fact that section 7062 could and code relief other than Vader was actually important to the outcome of the case so if you look at cic services for instance in that case the question was whether the request for an injunction was under section 7062 or was a general request to deny uh an IRS action and if it had been uh a direct challenge of the IRS action the anti-injunction ACT would have applied but there this court said actually the request is under Section 7062 I I think the history is is maybe helpful in understanding exactly how this works this court has made clear that section 7062 quote did not change the existing law of judicial review that's what this court said in Kaiser V wilki citing the uh attorney general's manual the Senate report and the house report so that makes the question for this court relatively simple could I could I take a step back uh from these kind of doctrinal specifics and ask about this case so um here right not before us is the um uh district court and then the the court of appeals rulings that uh OSHA exceeded its lawful Authority in promulgating the um the pp rule right so that being the case uh what's at stake in in the question presented um meaning what course of action is available um to a court in the face of this particular version of finding an agency action unlawful isn't it if it's unlawful for this case isn't it unlawful for every case your honor we think there are two potential courses of action that would have resulted in a more Equitable remedy the first would be the remedy of partial vacor here the court uh vacated not just the substantive rule but also the agency's regulatory findings those findings took 16 months and 39 statutorily mandated steps but the court felt uh as you can see from the question presented on page two of The Joint appendix what the court said on page 8 of The Joint appendix and what it actually did on page 12 that had no choice but to vacate the findings as well second we think there would have been a balanced decree that would have accorded uh with the remand without vacer precedence that we have so that decree could have looked something like this the court could have remanded without vacating uh the agency rule making and said your rule is ultra vires you need to promate a new rule but because this is an important safety regulation and people might be seriously hurt if it's a why isn't that how is that any different from vacor plus estay it's very similar to vacor plus estay your honor and we think that both remedies are available actually one of the uh slight inconsistencies they were and the other side is saying that you could have asked for either you didn't I think uh chief justice Sona s myor that the other side has denied the availability of stays um excuse me of a man without bacer but has agreed that stays are available exactly and so why didn't you ask for it I'm I'm not sure uh what the team of lawyers Willow thinking uh it's Poss you know we did request uh more targeted injunctions well I think I think the point is that even a rule of mandatory vacer isn't as inflexible as as you're suggesting which is to say there are ways of managing ing the process to achieve the basic ends of flexibility namely giving the agency another chance to think about whatever defects um and you know uh stays according to the cases that have been cited have been anywhere from weeks to even years um and that would seem like a pretty flexible approach that's true your honor but we think this is maybe one of the inconsistencies in respondents argument the cases that they cite for the proposition that stays are available explicitly weighed those against without vacer which they also thought were available and the reason is that all of those remedies are coming from section 702 not section 7062 what section 702 does is it says that courts May withhold relief on any appropriate Equitable ground so there's a bit of an inconsistency here to say that the remedies that respondent favors are all encoded in the APA and the remedies that they disfavored aren't in a way it's it's gerrymander a rule that includes the remedies they like and excludes the remedies they dislike can I ask why it's an appr appropriate your position is that the judge should tailor a remedy I understand your position but why meaning the finding here was that the rule that the agency lacked authority to pass this rule the rule requires every employer with more than 105 100 employees to hire a person it's not a person they've chosen to hire it's a person they're required to hire that's injury to the world that fits the category of covered individuals I'm not sure why a universal injunction is or vacature is inappropriate in a situation like that everyone is equally harmed everyone has to pay for a person because the law requires it not because they choose it I I see that I'm at time your honor and you can answer I I'll try to do it as fast as I can we agree that vacer often is the appropriate remedy for Ultra virus rule no I want to know why it isn't here oh um here your honor this is a safety regulation there could be drastic and inequitable consequences from immediate vacor no other court has weighed in there hasn't been any percolation of any kind and the aim circuit itself actually suggested potential intra Alternatives that uh the the agency could have adopted on remand for all these reasons we urge this court to reverse Anand and we thank this court for its time Madam chief justice and Maya please the court my name is Monica Wong and I also represent the petitioners mandatory vacor is not only a textual and ahistorical it is also unconstitutional article 3 requires federal courts to tailor the remedy to the nature and extent of the injury AR there countless examples uh contrary to that very very broad proposition which is to say congress can specify in all kinds of ways um what the meets and Bounds of uh a Court's remedial Authority is in any particular kind of case Justice Le we don't disagree that Congress has brought authority to create new permissive relief or to set up elaborate remedial schemes that lead to certain kinds of relief um that's what this court described in Grupo Mexicano but this court and other courts still undertake an independent constitutional evaluation of what whether that remedy is appropriate for the case or controversy at hand and we think that's because article 3's case or controversy requirement um is very by what standard would that be judged I mean what's the rule you're suggesting here as a kind of outer limit well we think that the remedy should afford complete relief to the injury but it shouldn't go beyond that because ultimately the injury makes the case the other side says that it's not just about injury that remedies are about um uh punishing basically the violation the idea is that Congress has the right to Define what it wants to do with a violation of law you're point doesn't take that into account no just chief justice Sodom mayor we believe that it is the injury that makes the case and that's because this court said most recently in Gil versus witford that plaintiff's remedy turns on plaintiff's injury and we think the way to understand but injury is only caused by a violation and if you're saying that Congress can't judge the importance of that violation and say once you've proven injury on any amount you're entitled to attorneys fees in the 1983 action um you're entitled even if you have only $1 of injury you're still entitled to attorney's fees I don't know why Congress should be precluded from saying the result of violating the law where you injure anyone even if it's a Dom Minimus amount but you still injure them is the rule is vacated I don't understand why the Constitution would not permit Congress to do that well chief justice sonay we think that the injury is connected to the legal violation after all the injury has to be caused by the legal violation and the way to understand the extent of the Constitutional violation is to understand the injury that it's produced I think an example would be helpful in the n9th circuit case of eace sanctuary Covenant versus Garland in which the ninth circuit dealt with an ultrav virus Asylum eligibility rule it didn't look to the legal violation there it looked at the injury that the rule inflicted on the plaintive organizations does it matter at all that Congress creat Creed these agency powers to begin with um and I guess it would be one thing if we were talking about striking down a statute or invalidating a statute but I guess just following up on the chief Justice's question it seems like if you create the agency I don't see why you can't prescribe the violation for the agency's abuse of its powers well your honor we think that the agency still has to in congress's authority over the agencies everything is still subject to article 3's limitation we think it is a broad limit but at the end of the day article 3's case or controvers case or controversy requirement kicks in um in extraordinary cases I guess one thing that surprised me about I I sort of get get the argument that a case or controversy is a dispute between a plaintiff and defendant and you can't go beyond that but then I get confused by the rule that you're articulating at the end which I think is actually often the often you can the court can go beyond the parties and your your colleague suggested can can often vacate the entire rule so if the theory is you're limited to plaintiff's injury why are you saying at the end of the day vacor is fine yes chief justice CER we think there's two circumstances in which a tailoring principle allows for Relief that reaches beyond the parties so we don't dispute that uh non-party relief is available those two situations are first when it's necessary to afford complete relief to the plaintiff's injury um this court has sen in Warth versus Seldon that incidental benefits to non-parties are acceptable and second there the injury may be experienced by plaintiffs as well as other affected parties and in that situation the court has also allowed for remedies that also reach to the energies suffered by similarly situated parties is that how you is that how you rationalize class actions uh yes your honor we believe so why is this any different here I mean the nature of the of the violation is that the agency exceeded its Authority and what use could there possibly be to having individual litigants like feder Rico um litigate this one by one plaintiff by plaintiff if the rule is invalid it's invalid for all to response to that Justice Le first again in East Bay Covenant uh East Bay Sanctuary Covenant versus Garland the ninth circuit in dealing with an ultrav virus rule looked at the injury and we think the injury does matter here we're dealing with a case here in which federi has said on page 35 and 44 of its response brief that the injury is a financial one to itself so Financial harm which got federi intercord which afforded it standing today is different from the legal violation that we're addressing the injury is they have to hire a person every plaintiff has to hire a person the injury is identical you I know you argue some people might welcome it but if they do they can hire the person person without the legal compulsion so no one's stopping them from doing something they want to do but once we vacate the rule it's voluntary and not mandatory well your honor again it turns on the injury so the financial harm that federici has experienced here may not be shared by all regulated construction companies under this rule there are some that may have had because we understand the construction industry has many safety and health concerns there may be companies that have already hired a PPE coordin in which case they would not be suffering the same Financial harm as a result of the same Financial of same legal violation and because a record here is sparse we agree that in most ultrav virus contexts the agency record record is robust and plaintiffs in their petitions to the court specify whether there are other regulated parties and whether they've experienced the same kind of harm but without that knowledge this court cannot draw legal logical inferences based on the financial harm that federi has experienced it's can I ask you one last question where in article 3 are you placing this constitutional limitation yes chief justice so standing which has to do with you have to be harmed to come to court we house it in the cases in controversy phrase of article 3 I don't see it anywhere in article 3 otherwise yes y honor we believe that remedial tailoring lives in the case or controversy requirement of article 3 well we think that it works hand in hand with standing to ensure that federal courts stay within the limits of a case or controversy when they're resolving the case as Justice Gorsuch described in his concurrence in United States versus Texas standing applies at the front end to ensure that when plaintiffs come into court they have an injury they they can establish an injury in fact that's traceable to defendant's conduct and capable of judicial resolution and we think after the merits determination remedial tailoring kicks in once the injury has been established to ensure that that when courts are giving out remedy the scope of that relief is tailored to and limited by the injury established in that case why is it that nobody has articulated this limit as part of the case of controversy requirement before I mean it seems like if it's in article three a court would have said it's in article three instead of just it's part of the nature of equity before today so I'm wondering how you deal with a lack of precedent for you yes Justice commer we believe that remedial tailoring is an article through requirement um and it goes back to a lot of seminal tailoring cases such as Missouri versus Jenkins 3 where this court evaluated the scope of federal remedial Authority as a constitutional question in fact just a couple of weeks ago after we turned in our brief the fifth circuit in Missouri versus Biden stated that the remedial tailoring requirement is in recognition of a federal Court's constitutionally prescribed role to adjudicate the individual case before it and not the generalized part but cases like Missouri versus Jenkins just stand for the proposition that the remedy must be commensurate with the violation right and here um in in this particular case but one might even generalize it to other cases the nature of the violation is that the agency has exceeded its Authority and um it'd be hard I I guess I would ask the question this way is there a scenario in which this form of violation uh this form of unlawfulness um would not simply uh result in um a remedy that is commensurate with the violation namely vacer under What scenario would that occur yes Justice Lee we think that mandatory vator or vator is over Brad in apa cases where the underlying injury can be remedied in a narrower manner so an example would be take a federal agency that has the statutory authority to regulate only federally funded entities but it goes ahead and promulgates a rule that affects both privately funded and federally funded entities in that case we think that the rule would be ultrav virus but the harm would only be experienced by the privately funded entities and so vacating the entire rule as to both types of parties stat says you can vacate part of the rule while you're honored that's not what the aim circuit thought below it thought the only choice it had was wholesale vator as my co-counsel has addressed and if this court believes that part that's over reading what the court said and did because there wasn't a way to um break up this Statute in the example you gave it applies to regulated entities and nonregulated entities you can excise the non-regulated entities but how do you do it here well your honor there could your only answer is only issue a vacature of the parties we before the court correct no chief justice senayor we think that there could be a limited injunction as to federi and similarly situated parties which could be other construction companies that are smaller in size but above that 100 employee threshold who have suffered a con we in a position to make a choice Congress has why are we in a court in a better position Congress has said if you violate the ru making laws you vacate those rules because they've been passed in violation of law you're now asking us to have courts below determine what a proper remedy is and rewrite the law to suit what our judgment is about what's a proper remedy correct well chief justice zayer we wouldn't quite agree with that characterization we think that this court is constitutionally bound to hear only cases and controversies and to resolve cases and agency did something wrong that's correct if the agency promulgated an unlawful rule but it didn't injure anyone get rid of the rule that's what Congress has told us to do that's the argument that's what the court below said well your honor we think that it's a constitutional Duty for this court to clarify for lower course that there is a remedial tailoring requirement that looks to the injury and just as standing isn't mentioned explicitly in the text of article 3 we think that remedial tailoring is implicit in the case or controversy language and this court should clarify not only its constitutional requirement but the parameters of the tailoring principle would your would your theory call to question um facial challenges to statutes or regulations your honor we think that examples of over breath in the First Amendment setting would still be permissible and pass constitutional muster if how's that possible though how's that possible though I mean any facial challenge is a claim that the law you know cannot be uh applied constitutionally in in any application but I mean the only application relevant is the plaintiff standing before the court uh on your theory right um so how could how could there be such a claim entertained by a federal court constitutionally under your theory well if the injury is Broad and Universal enough to sustain Broad and Universal relief then we think the tailoring principle is a flexible isn't that exactly what the litigant has brought here well no yor not based on the record there the record is sparse we think it's different from most APA cases because we don't know how many construction companies are regulated by this rule we don't know whether they've suffered Financial harm that's the same as what federici is pleading here and we think that um it is it would be unconstitutional for this court to vacate in that situation without the factual understanding you you alluded to the utility of are clarifying that this tailoring requirement exists and saying what it is can you just tell us what you would have us say that it is so article 3 requires that courts tailor their remedy meaning what well this court said in Gil versus wfr that the remedy must be tailored to the injury and we think that this court can clarify that courts should look to the injury determine the nature and extent of the injury how widespread it is and determine the remedy as such we think it's a it's a flexible requirement though it sets up zones of permissibility do you agree you can look to the nature of the violation too as we seem to have said well your honor it's the injury caused by the violation so in all the cases there is a violation that causes an injury and to understand the extent of the violation you look at what injury it has caused and how widespread it is I think that's uh palpable in cases that we sign in our brief for example in Lewis versus Casey I guess the thing that I'm worried about is just this seems like a multiactor test that I'm not sure is going to be very feasible for lower courts to apply um because we're saying this as a constitutional matter a court would exceed its Authority in certain cases by granting uh Vicor like this but we're in order to determine if there's a constitutional violation you'd have to weigh all these factors well your honor we think that's the bread and butter of judging we think by setting up a zone of permissibility the tailoring principle asked that simply that courts weigh the facts and circumstances of each case look at the injury and then think about the appropriate relief that would fit that injury but but it's a flexible requirement your honor it's like choosing pants so I guess what I'm wondering is that was very good um what I really wonder is when is a universal vure appropriate give me an example of a situation where you thought it would be appropriate you honor I see that I'm at time question well again we P point to East Bay Sanctuary Covenant they the ninth circuit and deal dealing with an ultrav virus Asylum eligibility rule looked at the plaintiff's injury the plaintiffs there were Asylum uh assistance organizations and their funding structure were tied to the number of Asylum applicants they were assisting and those Asylum applicants were categor B banned from entering this country across the Mexican border because of that rule so the only way to completely afford relief to plaintiffs in that case would be a universal injunction against the Rule's application and that's an example where Baker or Universal injunctions would be appropriate so we ask that this court reverse the judgement below andand for an appropriate determination of the remedy thank you for your time you may proceed thank you your honor Madame chief justice and may it please the court my name is Haley Eisenberg and I along with my co-counsel Richard Dunn represent the respondent frederich Contracting today so Council why would Congress have wanted to write the statute this way your honor we believe that Congress wanted to write the statute this way because this is the balance that Congress struck when it passed the APA it recognized that administrative agencies provided a great good for society and administrative governance had a lot of benefits but it also recognized that agency actions lack the Democratic pedigree of statutes and therefore require robust judicial oversight and so we yeah there's robust judicial oversight but this is like a straight jacket um on your view right it's it's sort of um a claim that um in the the Congress did some sort of uh Cosmic balancing of you know the kind of on the one side or possible variation in cases on the other side or sort of strength of the remedies and it just decided that well one size fits all you know unlike the pants I guess one size fits all right is that is that what we why would Congress write that seems kind of unusual to attribute um such a robust statement to Congress based on just these spare words J we think that Congress was intentional in doing this because agency actions do sweep Nationwide so it makes sense that the remedy would then match the harm that's caused by the agency when it passes an unlawful rule or regulation the one thing I know is that when Congress is unhappy with what we judges are doing it often steps in in the Ina for example they were unhappy with judicial review of discretionary decisions and they passed the law that said we can't do it in the Ina they didn't like Universal injunctions and they barred them decades before the APA courts were granting Universal vacatures but they were also granting injunction more limited injunctions since the passage of the APA which is decades long um judges have been routin ly doing that why shouldn't we read congress's silence to say that it approves and didn't intend what you claim it intended your honor it seems as though based on the cases that our friends on the other side site um in the cases that we've cited that courts are typically issuing Vater when agency action is unlawful and there are a few exceptions which are the r Man Without vager cases and there's a few cases that our friends on the other side have cited where courts have done additional to vager an injunction our friends say that those cases for example Bowen and mayor of Baltimore are cases where the courts entered in an injunction but in fact in mayor of Baltimore The District Court revised its injunction to um a Statewide vator and in um Bowen the court actually first vacated the administrator's order and then enjoined it to send reimbursements to the party in that case so we actually think that these cases where courts are doing something else with besides vaker um is actually much rarer than um then it's just not the usual R rare or not it still occurred it certainly occurred under the emergency price Control Act which you rely on greatly it has occurred in other settings how do we ignore that history youor we believe that Congress spoke clearly when it wrote set aside in the APA as you mentioned the emergency price Control Act denotes multiple different remedies it says remand or sorry restrain suspend um enjoin or set aside so at the time that the APA was passed Congress knew how to specify multiple remedies in section 7062 can I ask about that time the APA was passed because I mean there there's the Attorney General's um manual on the APA or commentary on the APA there are some other contemporaneous sources cited by your friends on the other side um do you think the AG manual got it wrong do think those contemporaneous sources got it wrong do you have contemporaneous sources of your own saying set aside me V yes your honor so the emergency or sorry the um attorney general report that's referenced by our friends on the other side just simply talks about setting aside in the report it doesn't actually say anything about whether or not setting aside is vac but it says it it that 706 restates the present law as to the scope of judicial review right so basically I think it's saying there's no innovation here it's traditional I take that to mean the traditional array of Equitable remedies are what's going to be available under the APA yes your honor but we know that the emergency court of appeals in article 3 Court created by the emergency price control act at the time the APA was enacted was in fact doing Vater and it when it did so it used the term set aside so we know in the case flet VBS for example the court said that it was setting aside the administrator's order and um Waste Paper order and in that case case when they set it aside they stayed their judgment for a period of days to allow the agent or the administrator to amend which tells us that in fact they were vacating that order not enjoining it I I I take the point that um the law of judicial viw at that point allowed vcor but it seemed to also allow a lot of other things right so I guess that's the piece that you're not carrying over from traditional judici review yes your honor and we think that the Sha language in section 7062 is very clear and courts have interpreted the sh language to be mandatory in cases before so for example this court in a case main Community Health with Justice Sodor writing the opinion for that Court talked about how the language shall in a statute is very clear that it's mandatory especially when surrounding statutes in that case for example we were looking at section 1342 of the Affordable Care Act when 1341 and 1343 specified that May um the term May and then 1342 said shall Council the problem is and I do agree with you I agree Shia means it's mandatory but that's not the issue here the issue is who's it mandatory against meaning a court sets aside and vacates a rule as it applies to an individual is not the same as saying that they have to vacate and set aside the rule as to all other their parties and nothing in that shall answers that particular question and I think that's what your other side is arguing which is yes it includes setting aside and disregarding what my colleague Neil gorsich called disregarding the rule as it applies to the parties but I don't know where the command that says You must vacated on behalf of all parties in all situations comes from that's further than in the face of the room well your honor the the must language the shall language conting must um is simply saying that the court must vacate the action when two triggers are hit first when the court finds that the agency action is unlawful under Section 7062 and when it's a prejudicial um agency err and so um that shall language is just simply telling the court that when those two things are hit then Vader is required but it inherently in Vader it is wiping the rule off the book so it inherently applies to all parties one question under 702 because this language is I think very difficult for your position it reads nothing here in the APA statute is cited affects the power or duty of the court to dismiss any action or deny any relief on any other approach apprpriate legal or Equitable ground that's the exact language of 702 and it refers to the power of the court to affect uh to Grant relief according to appropriate legal or Equitable ground what do you do with that language your honor we believe that while section 7062 set aside language does require a certain remedy when unlawful agency action occurs it doesn't divest courts from other background um equitable remedies such as an injunction um the case Bowen for example our Department of Commerce be New York but it also says deny relief on any other Equitable ground well your honor we think that the prejudicial the prejudicial air language in section 7062 gives courts that discretion to when they find an air to be not prejudicial or harmless a um that they don't have to vacate the rule that's one of our triggers to mandatory vacor if I may I I I guess I'd like to understand better how you deal with cases like Bowen which are sort of like you know the VAC or plus right where does the plus come from your honor we believe that the plus comes from section 7061 which is right above section 7062 in the APA which tells courts that when agency when agency actions do not act so when there's inaction courts can compel um agency agencies to act and so we actually think 7061 and 7062 work hand inand and in the Bowen case is a great example in that case the court issued Vader to make sure that the administrator's decision was wiped off the books and then 7061 allowed the court to um enjoin the administrator from issuing the reimbursements in that case what do you do with the emergency price Control Act and heck versus b bs they're the Court had language that said when a violation of the Act was found an injunction shall be granted same mandatory language as here and the court said no that courts always have discretion to deny or Grant an injunction so if the court could read that mandatory language to always retain the Court's discretion which is the way I read 702 why doesn't that principle apply here here your honor the reason why the hect uh principle if if there is one uh does not apply here is because in that case the courts were interpreting section 205 of the emergency price Control Act which which talked about um the injunctive relief that a court could give um the administrator if a plaintiff or a party had violated the order that they had put down and in that case it gave courts broad discretion through a term called other or or other orders so that that section of the emergency price Control Act said shall Grant injunctive relief but then it said or other orders and so the discretion that courts had in interpreting section 205 of the emergency price Control Act came from that or other orders language not from the Sha language of course can I ask you about one other portion of the AP or another adjoining section which is 703 um so it seems like you want the REM that a court should give at the end of the case to come from 706 and I'm wondering why 703 isn't the more relevant place to look right it talks about what a plff can what kind of Suits a plff can bring and there it's things like an action for declaratory judgment or rid of prohibitory or mandatory injunction or hius Corpus just seems natural to think if that's the suit that the plaintiff's bringing at the end of the case what a court is going to issue is one of those things and then I think the section we're talking about is more doing what the Chief Justice said which is saying when you're doing that when you're deciding whether to Grant any of those things set aside something that's unlawful but tell me why why I'm wrong with that well your honor first I would say that that is not what our friends on the other side have argued for here today they have not argued that set aside should just be interpreted as disregard they have argued that it should be interpreted as vager actually in their reply brief on page one they've argued that it should be the ordinary remedy um for APA violations however in the alternative assuming this disregard language we believe that section 703 um does specify these other remedies but it works in the same way that the injunction in Bowen or the injunction in Department of Commerce works and that after doing the mandated vacer required in section 706 the court does have discretion to if the party has asked for another form of relief which is to authorized to do under Section 703 could then issue that relief and I would also support that point with the fact that 706 is the clear remedy section of the APA and that makes sense based on the structure of chapter 7 of the APA we see that 702 First waves the United States sovereign immunity and says that um the that the United States can't be sued for money damages although I would note that that is um a remedy that our friends on the other side have suggested that set aside could mean on page five of their reply brief um in 703 it then lays out additional remedies that a party could ask for in 704 um or sorry in 705 it then says that a court could issue preliminary relief so again right before reaching the merits of the case and then 706 at the end once a court has reached the merits of the case and determined that an agency action is unlockable me normally what the party asks for sort of limits what is going to be an issue in the suit so if I bring a suit for damages for something bad that happened the court is not going to award an injunction is the remedy at the end of the day and here that seems to be um what you're suggesting right that a plaintiff can bring a suit and say what we want is a declaratory judgment and the court has to then vacate the rule in that action your honor we believe that the APA is just different than other statutes because the APA set out um to create this balance for large administrative actions and then um to counter those large administrative actions it created a large remedy that courts do have to issue when an agency violates the APA because when the agency violates the APA it impacts the entire nation or all regulated entities that sweep Across the Nation so we think it makes perfect sense that even if a party were to describe one type of relief that it would want that it would make sense also to keep the agency from continuing to enforce an unlawful regulation against other parties I guess I'm going back to um my colleague's question what you're suggesting is if a plaintiff just wants a declaratory J judgement action and it walks into court and says 703 permits me to do this and all I want is a declaratory judgment you are suggesting that 706 compels vacature even if it's not asked for that is more to me an unusual way to hamstring a judge because you're really saying Congress decided to hamstring plaintiffs or petitioners if in the relief they could seek in a provision that says they can seek all sorts of relief in addition to a 706 action well your honor we do believe that that is what the APA calls for however it's notable that the APA although it does require vacer again it does have to find the agency action both unlawful and it has to reach that um on the merits in a judgment and then it also has to find that the agency action is prejudicial so it's very possible in those cases that maybe that the agency action is not prejudicial and of course the court can always issue a post-judgment stay or they could REM they could voluntarily remand in the cases where maybe u a plaintiff has asked for some other form of what does what does vacer mean in a in the context of a case where litigant is essentially saying um as applied to me right this rule is unlawful meaning on the basis of certain facts um or um you know basically uh cabining the claim to the way this rule applies to me what does viter mean in that context your honor I believe that vacer would still mean wiping the statute or the regulation I'm sorry off the books um but in that in that context what you're talking about um a certain faction ual scenario the agency action either violates procedures prescribed in the APA or it's unlawful due to a violation in section 7062 A through F or it's not the specific facts of a of a certain person aren't necessarily going to CH suppose the rule in this case had simply said you know you shall hire one uh PPU coordinator um if you have more than 100 employees to the extent it is not overly burdensome to the company right and same case uh litigant comes in and says well as applied to me this is going to be overly burdensome your honor again I would say that vacer is the correct remedy in that case because in this case of the entire rule your honor I see that I'm at time may I answer your question yes your honor of the entire rule because in this case the problem is not only that it's harming frederici in terms of the financial injury but the problem is that the O the OSHA PPE rule has violated the delegated authority that Congress gave OSHA in the OSHA act so regardless of the facts of the case the the PPE rule is unlawful and has to be vacated and can't be applied to anyone and for the foregoing reasons we ask this court to affirm the Judgment of the aim circuit thank you you may proceed Madame chief justice and may have please the court my name is Richard Dunn and I represent federi Contracting I will argue that by mandating Vater section 7062 of the APA does not violate the constitution article 3 leaves it to Congress to determine what remedies are available in federal court and when a plaintiff withstanding can establish that a defendant has committed a legal violation nothing stands in the way of the Court taking the further step of wiping that illegal action off the books at the insistence of are there any article 3 limits on the remedies a court can order when a legal violation is established in a lawsuit well we absolutely believe that you can't require courts to issue advisory opinions for example so if Congress tried to set up a scheme where where a court would issue an advisory opinion or something of that nature but we don't and there there's no there's no case or contract there's no live dispute but so let's say there's a live dispute Congress can mandate any kind of relief it wants in response to that suit well Congress cannot say something like we're going to start ordering other rules that OSHA has promulgated off the books if those rules I guess I just don't see so what's the principle what's what's the it seems like you are saying then there's some kind of remedial limit in article 3 and what is it so it's the scope of the defendant's legal violation so here it was the unlawful rule that caused the injury once that violation is established that rule can go off the books we could imagine Congress maybe saying well start then scrutinizing other OSHA rules to see whether those are also unlawful if this one is and that's a limit can I give you a hypothetical this is a gender discrimination case and Congress is concerned about gender discrimination can Congress say uh in any gender discrimination suit uh the court can award damages not only to the plaintiff but to anybody else who it decides based on the evidence that aderes in the case was injured by the uh defendant's wrongful conduct you could do that if a plaintiff withstanding is able to come in and then say this defendant violated the law discriminated um that I don't see any problem with that we we cite this case EEOC versus Wilson from the sixth circuit where you had a sexual harasser and the court said we're going to enjoin you from actually accompanying any of your employees off the premises that's lawful conduct any other employees as well because of your track record and and this is important for civil rights litigation and other things like that you're fighting the hypothetical all right because there has to be some limit you can create your own hypotheticals if you want but let's assume that Congress came in and said plaintiff comes in they prove they've been injured by a particular violation now every plant is entitled to a million dollars we what is that is that simply a due process violation um but it's still unconstitutional and that's basically what the other side's arguing here which is there's some inherit limiting principle constitutional principle against congress's ability to structure some remedies you're hypothetical chief justice Sodor and Justice kovner's hypothetical sound exactly like a class action where you have a plaintiff withstanding come in and say I want a million dollars not just for myself but for all other putative class members who aren't are not going to come before the court they're not going to establish a case most class actions not all but in most class actions the amount of the inj injury is proven and set According to some objective criteria how much each pay how much um how much they loss Etc so it's not just a figure picked out of the Hat it's one in which the amount of the injury is also common to all the parties of course but you could have a damage my example was one that was different it doesn't matter what the plaintiff's injury is Congress is saying it's worth a million oh so you're asking about statutory damages in that in that situation basically well I think that certainly Congress can prescribe statutory damages and we think that Congress has done that in many statutes such as treble damages the antitrust laws and we say that is fine Congress can seems like the cas or controversy limit and the idea that somebody's got to have standing to bring suit carries with it the idea that all the court is supposed to be deciding is the dispute between two particular parties um so it seems strange to say as soon as there's some dispute before the court the court can order relief that goes way outside of it that is exactly what this court did in the iconic School desegregation cases it did that in the recent case of Brown versus pla it is so essential to civil rights litigation to vindicate these rights when you have one plaintiff or one group of plaintiffs come in and say our school is is segregated in this school district and the court in cases like Swan versus Charlotte mecklinburg Milligan 2 says we are going to order this District to desegregate its schools those were some of the most shining examples of this court vindicating the law not just for the named plaintiffs before the court but for other future hypothetical victims well you you omitted the first milic case which went the other way which is to say the court there drew a line in terms of the remedial authority of the court because it said it wasn't commensurate with the violation but in Hills versus grro Mr Justice Stewart distinguishes the first milant case and says the problem with milikin 1 was that the court started trying to enjoin school districts outside of the Detroit Metropolitan the claim was that that was necessary to the to the remedy but the court simply disagreed is that not is that a what is that is that an equal protection holding is it a article three holding what is that the way that Hills describes what happened in milikin 1 and I think this is very instructive is that the court was trying to enjoin defendants who had not violated the law you had these other school districts that were not shown to be discriminators they were not shown to be violators and the court said we need to to make sure that we're only enjoining the discriminators and in Hills this court reaffirms a very broad conception of equity you have even Justice Marshall Justice Brennan concurring in Hills which says we're not limited to enjoining the Department of Housing and Urban Development in only the area of Chicago we can go broader than that so this court time and again has exceeded OSHA's supposed tailoring principle in in some of the most iconic civil rights cases and those were not unconstitutional can ask about sort of a constitutional avoidance kind of principle so if I have a case or controversy concern here is there a con stitutional avoidance principle that applies and would say just interpret uh the statute you know narrowly to allow a variety of remedies to avoid that problem well I do want toage your concerns about case or controversy before we're done today but if you did have that concern I don't think that constitutional avoidance would step in here we think that 7062 is very clear in the way that it requires vacer with the mandatory language of sha and the compelling evidence that set aside means to vacate as my co-council put forward so we don't think that constitutional avoidance has ever been thought to just because it's because the statute's so clear so we never get to constitutional avoidance is that that three well I I I do want to say that the statute is very clear and I don't think you would want to get to it but I I really want to assuage your concerns in the first place I want to fight this hypo a little bit because I do not want you to have concerns about the case or controversy requirement it would be such a drastic step for this court to for the first time ever say that the case or controversy language requires this tailored relief and it would it would be disavowing so many important decisions because I thought I think you would have said of all those civil rights cases that the relief was appropriately tailored to the nature of the violation um in those cases and all your friends on the other side are saying is courts have to engage in that kind of traditional remedial tailoring uh in order to comply with their article 3 responsibility so is is that is that going to disturb your the civil rights cases and other cases that you're relying on not at all because we agree that it's about the scope of the defendants violation our friends on the other side want this court to start doing what the brown two court never did the brown two court did not say which actions precisely have we consolidate it which actions which plaintiffs are before us right now how can we make sure we're only ordering those schools that are segregated as to these plaintiffs to become desegregated the court said it's time to desegregate and we think that is the principle and if you look at a case like Brown versus pla in 2011 this court considered pondered and then rejected OSHA's tailoring principle in very clear terms terms um Justice Kennedy there says we have prisoners with medical and physical mental and physical disabilities alleging that certain uh prison conditions are unconstitutional and he said we're going to enjoin all the prisons from doing these violations as to everybody not just the medically disabled plaintiffs because these are other people are the system's future hypothetical victims and when you go that broad the tailoring principle has been disavowed can I ask you uh Council so you are aware I'm sure um of an adjacent uh debate over Nationwide injunctions absolutely do nation and members of this court have written about this um do Nationwide injunctions present any constitutional concerns in your view well I have a few responses to this and I'm glad you asked so Nationwide injunctions are a bit different because here Congress has required or at minimum authorized Vater whereas Congress has not ever authorized Nationwide injunctions so there's the problem of congressional authorization but if you if you're referring to Justice Thomas's concurrence in Trump versus Hawaii where he suggested that Nationwide injunctions might be inconsistent with article three um due to a tailoring principle I would make two points the first is that Justice Thomas was making a tentative suggestion in his short concurrence he said I'm skeptical I think article 3 might require this but subject to further study and we are confident that if Justice Thomas were here today with the benefit of Federici's briefing and oral argument even he would go with has he changed his mind when he's been skeptical before the Baldwin Dental your honor the Baldwin Dental he repudiated the Brand X Doctrine in no clear terms he said My Brand X opinion is unconstitutional but he wasn't skeptical in the previous case he just admitted he was wrong leader he wrote Brand X and he said this is so necessary and then in Baldwin he said I was totally wrong he's he always changes his mind so we think he wait a minute not always but he t as on occasion um having said that um there is the question that um he raises a serious issue and um and I see your distinction between a vacature or an injunction but the line is very fine you are right that generally when we speak about vacature of setting aside we're thinking of vac piure when we're talking about restraining or prohibiting someone we're talking about an injunction but they're often flipped sides of each other and so it seems I'm seemed heart pressed to think that a congress who permitted the court to stay its in its vacatur pending appeal that per that directs that a court looks at Prejudice in determining the remedy that that same Congress is going to say that courts cannot look at the record as a whole and take due account of whether the remedy is disproportionate to the violation so in many ways it's the same question if I can and you can see this in your briefs if I can order someone to to um uh if I can say error is not prejudicial and not order vure wouldn't the Constitution say something about um hamstringing a judge from being able to say a particular remedy is inappropriate or disproportionate to the harm well in in T I would remind this court of TVA versus Hill the famous snail daughter case where Congress chose the snail daughter over the dam and there it was held that Congress could restrict the Court's powers and Equity via a statute requiring an injunction in a certain case Under The Endangered Species Act and Weinberger versus Romero Barcelo affirmed that um as to Nationwide injunctions I I want to assuage I do want to say that a snail is a living creature um money is not living that that is true that is true but even Weinberger versus Romero Barcelo affirmed the the principle that was AR articulated in TVA versus Hill and I want to assuage this court that even if you have concerns about Nationwide injunctions in all circumstances nothing is going to stop this court from encouraging or even requiring lower courts to take into account um certain Equitable considerations when deciding the scope of r i i i accept all that and I think that's fine um but I guess the the where I was sort of heading with the Nationwide injunction question is I mean we focus a little bit on case and controversy which is familiar because it's in the text um but is there an implicit structural principle somewhere in article 3 um you know the notion that you know first of all lower courts uh no disrespect to any of my lower court colleagues um but lower courts are actually not constitutionally required um and the notion that um you know not all courts in the in the federal system may be um vested with the same degree of remedial Authority um maybe that has something to do with the intuitions here that you have single uh federal district judges um being required in an Essence to make Nationwide policy we don't call it that but um that is in effect what happens that seems a little bit kind of that's a grand proposition uh against the backdrop of a provision in the Constitution that doesn't even say that such courts are required well we think that the madonian compromise supports our position here because the courts never had to be required but once they are required it's up to Congress to invest them with jurisdiction and to structure them and even groupo Mexicano just scalia's opinion which had a very restrictive conception of equity one of the great virtues of that opinion is it says Congress can dramatically expand major doctrinal Innovations can be authorized by Congress that were unknown to history and we think that that is what Congress without limit well with subject to the limits that I was discussing with Justice CER for example I mean if Congress tried to order punitive damages over roughly 10 times the amount of the violation we would say that violates the due process clause of the 14th or fifth amendments in State Farm versus Campbell and BMW versus gor there are some limits on this but we don't think that Congress is limited from saying when you Court in an exercise of your jurisdiction find that a rule is unlawful you you are somehow prevented from giving effect to congress's command to to take care of that unlawful rule for the benefit of future plaintiffs who are going to suffer the injury as your honor was suggesting earlier in the argument so I I mean I I guess I get the argument as to the cater specifically and why Congress could um authorize that as the exclusive remedy under the APA the thing that's giving me pause is the much broader position which is basically Congress can do anything it wants and doesn't need to can can forbid courts from considering the nature of the injury and the nature of uh the damages uh can uh require a court in any kind of case where it finds a violation to impose any kind of Remedy Congress wants um I guess why why does having some kind of tailoring in article 3 uh that cause any kind of problem I think Congress has broad power over the federal courts and Congress can require federal courts to do what Congress tells them to do when it comes time to issue a remedy and I think in the APA context you had that Monumental compromise that Wong yangs and Vermont Yankee and Perez versus Mortgage Bankers all affirm that this was a dramatic change in our country and Congress said we want to vacate at the first determination of illegality and for those reasons we urge you to affirm the Judgment below thank you Madam chief justice and may it please the court we'd like to make three points on rebuttal first respondent cannot find a hook for the injunctive relief that it concedes is available under the APA in its colloquy just a few minutes ago with Justice Lou responded suggested that Bowen placed injunctive relief in section 7061 but that's simply not what Bowen said Bowen said quote section 706 2's plain text allows course to provide uh complete relief and it then went on to explain that that relief included vacer and injunctions second respondent has insisted both tonight and its briefing that the words set aside have a clear and singular meaning but it has cited no majority opinion from any Court in seven decades of interpreting the APA that has ever held that instead it relies on two concurrences written by the same judge third respondent has attempted to demote the tailoring principle from its constitutional status by listing well-established remedies that permit non-party relief but the tailoring principle is Broad it is flexible it permits non-party relief what it does not allow is a remedy that is universal Council can I ask ask you a simple question we isue magic words in almost every context whether it's in waiver of sovereign's immunity and in all contexts we don't ask for magic words it appears to me that you're arguing that um set aside has is Broad enough to Encompass every definition in the dictionary but what would be clear meaning do we Rec do we require Congress to use the magic word vacate your honor we think that were it not for the fact that set aside is a singularly flexible term that this court had used to describe injunctions that Congress had used to describe injunctions that uh a term like that could work we don't think it's asking for magic words to say that when a court uses a very flexible term they mean to provide for very flexible relief and it it's worth just just talking a minute about the history of the APA as as Justice cner mentioned a few minutes ago the uh section 7062 did not change the existing law of judicial review and that existing law of judicial review is very clear it was Equity the discretion to mold each decree and that makes a lot of sense in the APA context the APA is not an abstract document it is practical it is pragmatic it regulates all kinds of Conduct in all different context as such it would be wrong for this court to pronounce a sweeping rule that would rigidify the APA and prevent the kind of equity that Courts for seven decades all across the country have done we urge this court not to go down that route and instead to conform to the precedent of the past and we thank this court for its time court is recess we will reconvene after deliberation all rise you may be seated please remain in your seats while judges deliberate they will return and announce the award shortly [Applause] [Music] good all rise hello everybody so what's the protocol do we announce the winners do you ask us who the winners are yes Justice s mayora you will announce the winners please uh justice L said to me um we can't keep them in suspense all right so best brief goes to [Applause] petitioners best team goes to um respondents and best oral Advocate goes to Richard dun now for all of you in the audience um you should know know how hard a decision like this is and I will explain why I don't do many moots anymore because it's a lot of work for us too um and I continue to say yes on occasion for one very important reason watching the skill of all of you for me is inspiring you keep me doing what I do you have to understand that my work is not easy and too often in recent times it's difficult and I need to have my spirits lifted too and you do that watching your Devotion to your craft to learning and mastering it and doing presentation that rival what I see before me in court tells me that we have a younger generation of lawyers who will follow the banner of justice and so I took that inspiration from seeing all four performances from reading the briefs our decisions were very difficult both sides briefs had incredible straints um both sides had stuff you learn about but the point is that um the marginal difference was just that and the same with your advocacy every one of you was further skilled than I was as a lawyer leaving law school um you will reach even greater Heights than me in your professional work because of your dedication and willingness to work so hard and do such a great job thank you for the time you spent on this thank you for giving me hope and thank all of the people who supported you the brief writers um not the the um case writers what a great job he did it's coming to a court soon undoubtedly to mind soon um the point is that every part of this has been really impressive and I know that it's been a huge team effort um Harvard John where are you you should be very proud of your stud um I'll just add U my congratulations to all the competitors here today and to all of the students who participated in all the early rounds as well this is a tremendous activity um I'll just Echo what jce Sor said which is I would be so delighted to see any of you argue in my court um you would uh raise the bar honestly uh for I mean that's not anything wrong with our advocacy but this is a very very high standard um and you may not know that actually um until you spend some time in the profession as to how excellent uh you have become in a short period of time um you may be used to seeing each other you know do this at this point but you have really set a very very high bar I just want to make one quick comment about the nature of oral argument which all of you keyed in on in a certain way which is that you prepare so much you know in terms of the material and the doctrine the case law and all your you know substantive arguments but fundamentally oral argument is a human interaction right and so all the other parts of your um skill set your emotional intelligence your people skills your ability to sort of sense the room and to sense uh the bench all of that is equally important to your success as an Advocate um because it goes to your ability to be heard you may have the best arguments in the world but if you can't be heard right um then it won't do you any good and all of you had a very very nice um sort of radar for these kinds of things and we don't really teach these things um but it turns out that these are some of the most important skills you'll ever have as a lawyer I just want to make one last remark not about the competitors but about all of the rest of you who are here um we had a very nice dinner you know ahead of this uh event and here and at the dinner I just want to say how lovely it is that all of you showed up for each other um and that's not something to be taken for granted um it's uh what it is to be a community um and when I uh hear you cheering at the end of the event you know consider you're not cheering you know people's viewpoints you're not cheering their ideologies you're cheering their hard work you're cheering their teamwork you are cheering their excellence and that is something that uh I hope you sort of make a mental Mark of in terms of what this event has meant for the community and take that into the other things that you do at this school thank you for the privilege of being part of this um I can't really improve on uh any of of that I think I can just coign it uh I these these competitions are super fun to do um so thank you for having me I do think the level of briefing and oral advocacy was as strong as any mot Court I've seen you guys are are really tremendous and um are ready to have you know careers in in this kind of work uh all of you if if that's that's something that that you want to pursue and and I hope that it is something that that you want to pursue given um how strong you are already and I think this is like kind of an incredible mood Court I I'm not sure if there's any other mood court that is as intense that goes these multiple rounds of of briefing on these cases that are like totally new to like Ames Court only cases I think it is probably the most intense moot Court uh experience out there and you guys have all uh kind of hit it all out of the park in in that so congratulations to all [Applause] well now we do adjourn for the evening thank you all for being here the families who have come I hope you know why you should be proud of your children you've seen it and believe it or not all that money you've paid has paid off thank you all [Applause] guys please be seated thank you all so much for attending tonight's oral argument we would like to thank the Dean's office and the dean of students office for all their support of the as program and we would once again like to congratulate both teams on an amazing performance we invite all of you to now join us for our recep at the pub in weren Hall And for those of you who are TOS we hope to see you here next [Applause] year