Study Cards

Question 1

What is the standard for evaluating whether the government will change the law back?

Answer 1

“Reasonable expectation of recurrence “

Question 2

How does the Final Rule ensure that the procedural safeguards it provides are sufficient to protect the welfare of unaccompanied children, especially given the government’s acknowledgment of their vulnerability?

Answer 2

notice

the right to a hearing, and

specific standards for the care and placement

Question 3

Given the critical importance of child welfare, how can the government guarantee that these protections are effectively implemented and not just theoretical?

Answer 3

The rule, by virtue of how it was promulgated, has the force of law. Moreover, The rule also provides mechanisms for monitoring and accountability, ensuring that the protections are realized in practice, not just in theory. [See Defs’ MTD at 9-10].

Question 4

What steps has the government taken to ensure that the Final Rule does not inadvertently expose unaccompanied children to harm due to bureaucratic delays or implementation failures?

Answer 4

the Final Rule has specific timelines and enforcement mechanisms to minimize bureaucratic delays and prevent implementation failures.

Question 5

How can the government ensure that the Final Rule’s protections are maintained in the face of potential resource constraints or administrative challenges?

Answer 5

The rule also includes provisions for oversight and accountability, ensuring that any challenges do not undermine the welfare protections. [See Defs’ MTD at 10].

Question 6

Why is entering declaratory judgment unnecessary given the current state of the case?

Answer 6

Entering declaratory judgment is unnecessary because the issues raised in the complaint have been

fully resolved

through the implementation of the Foundational Rule and subsequent actions by the ORR. Also,

Presumption of good faith

The primary purpose of declaratory relief is to

clarify legal rights in an ongoing controversy,

but here, there is no longer a live controversy. The protections sought by Plaintiffs are

already in place (Rule and SJ) and have become integral to ORR’s operations, rendering declaratory judgment redundant.

Question 7

How does the government’s presumption of good faith impact the need for declaratory judgment?

Answer 7

The government is afforded a strong presumption of good faith, especially when it has taken definitive steps to abandon the challenged policy, as it has done by implementing the Rule. This presumption undermines the need for declaratory judgment because it is unlikely the government will revert to the prior practices. Thus, declaratory judgment would serve no practical purpose and would merely restate what has already been accomplished through the government’s good faith actions.

Also, can’t do DJ for two reasons: one, no Jx bc moot. Two, even if not moot, no resressability bc the policies and procedures have been replaced by the rule

Question 8

Does the potential for future disputes justify entering declaratory judgment?

Answer 8

Declaratory judgment is not meant to address hypothetical future controversies but rather existing ones.

Since the issues at the heart of this case have been resolved, any future disputes would need to be addressed as they arise and would not be affected by a declaratory judgment issued in the current case.

Question 9

Would entering declaratory judgment contribute to judicial economy?

Answer 9

By issuing declaratory judgment in a resolved case, the court risks setting a precedent for unnecessary judicial intervention in matters where the government has already acted to address the concerns raised.

Question 10

How does the resolution of Plaintiffs’ claims affect the necessity of declaratory judgment?

Answer 10

Declaratory judgment is intended to settle legal uncertainties, but in this case, all relevant issues have been addressed and resolved, making such a judgment superfluous

Question 11

How can the Court be assured that the protections established by the Foundational Rule will remain in place under future administrations?

Answer 11

Formal rulemaking process

The Foundational Rule has been fully integrated into the operations of ORR, establishing a durable framework that is not easily reversed.

Any attempt to change these protections would require a formal rulemaking process, which includes public notice, comment periods, and potential legal challenges.

Moreover, the government’s strong presumption of good faith, as recognized by the courts, suggests that these protections will continue to be upheld, irrespective of changes in administration.

Question 12

What would prevent a future administration from reversing the current policies and practices?

Answer 12

significant reversal would require a comprehensive rulemaking process subject to judicial review.

Additionally, the current Rule was established in response to litigation and judicial oversight, making it less susceptible to abrupt changes without a solid legal basis

Question 13

How does the potential for a change in administration impact the argument for mootness?

Answer 13

The Court is tasked with addressing the situation as it stands today, where the issues have been fully resolved. Mootness is determined based on the current legal and factual landscape, not on speculative future scenarios. Any future changes in administration would need to be addressed in their own context and would not alter the fact that the present controversy has been resolved, rendering the case moot.

Question 14

Wouldn’t a declaratory judgment provide necessary protection against potential policy reversals by a future administration?

Answer 14

The protections currently in place are already deeply embedded in ORR’s operational framework and backed by extensive judicial oversight.

Any attempt by a future administration to reverse these policies would still be subject to the same rigorous rulemaking process and judicial review that a declaratory judgment would trigger.

Thus, the existing legal mechanisms are sufficient to ensure continuity without the need for declaratory judgment.

Question 15

How can the Court be confident that the absence of a declaratory judgment won’t lead to regression in policy under a new administration?

Answer 15

The absence of a declaratory judgment does not imply a lack of safeguards

. The current Rule set a high standard also

. The rulemaking process, combined with the possibility of judicial review, offers a robust mechanism to challenge any regression in policy.

Furthermore, issuing a declaratory judgment based on speculative future actions would go beyond the scope of the Court’s role in addressing live controversies and could set an impractical precedent for intervening in policy matters that have already been resolved.

Question 16

Couldn’t the Court determine that the circumstances have evolved since summary judgment, and therefore the case isn’t truly moot because additional protections could still be necessary?”

Answer 16

while circumstances may evolve, the law of the case doctrine dictates that the summary judgment decision remains binding as to the relief granted.

The plaintiffs had the option to appeal if they believed that more protections were necessary, but they did not.

The case is moot because the Court’s prior decision resolved the issues presented, and the relief ordered has been implemented.

Revisiting the case now would not only violate the finality of the summary judgment but also disregard the plaintiffs’ decision to accept that judgment without appeal.”

Question 17

Given the political climate, what assurances can the government provide that the Final Rule will not be reversed or weakened by future administrations?

Answer 17

Answer: The Final Rule is designed to be durable because it was codified through the APA’s formal rulemaking process, which includes significant procedural safeguards against arbitrary changes. Any attempt to reverse or weaken the rule would require going through the same rigorous process, making it unlikely without substantial justification. [See Defs’ MTD Reply at 7].

Question 18

What specific procedural barriers exist that would make it difficult to reverse or weaken the Final Rule once it is in place?

Answer 18

Notice and comment rule making, which entails:

public notice,

the opportunity for public comment, and

detailed justifications for any changes.

These barriers ensure that any attempt to reverse or weaken the Final Rule must be well-supported and legally defensible, making arbitrary changes difficult to achieve. [See Defs’ MTD Reply at 8].

Question 19

How does the Final Rule moot the Plaintiffs’ claims, considering that it addresses the specific issues raised in their lawsuit?

Answer 19

Answer: The Final Rule moots the Plaintiffs’ claims because it provides the specific procedural protections that Plaintiffs sought in their lawsuit. Since the issues raised have been resolved through the implementation of the rule, there is no longer a live controversy for the Court to address, making the case moot. [See Defs’ MTD at 6-7].

Question 20

Why should the Court not retain jurisdiction over the case if the Plaintiffs argue that the Final Rule could be subject to future challenges?

Answer 20

Answer: The Court should not retain jurisdiction because the case is currently moot; the issues raised by Plaintiffs have been addressed by the Final Rule. Any future challenges would need to be based on new circumstances or legal developments, which would be the subject of a separate legal action, not this one. [See Defs’ MTD at 7].

Question 21

Why should the Court find that the voluntary cessation doctrine does not apply here, given the implementation of the Final Rule?

Answer 21

Answer: The Court should find that the voluntary cessation doctrine does not apply because the Final Rule represents a formal and permanent regulatory change, not a temporary or voluntary cessation of the challenged conduct. The APA process provides significant procedural safeguards that make it unlikely for the government to revert to the previous policies, thereby rendering the case moot. [See Defs’ MTD at 7-8].

Question 22

How does the implementation of the Final Rule diminish the need for the Court to retain jurisdiction over this case?

Answer 22

Answer: The implementation of the Final Rule diminishes the need for the Court to retain jurisdiction because the rule resolves the key issues raised in the lawsuit by providing the necessary procedural protections. Since these protections are now codified and enforceable, there is no longer a need for the Court to oversee compliance, as the rule itself ensures adherence. [See Defs’ MTD at 7-8].

Question 23

What mechanisms within the Final Rule allow for enforcement and compliance monitoring without the need for judicial intervention?

Answer 23

Answer: The Final Rule includes specific provisions for enforcement and compliance monitoring, such as regular reporting requirements, audits, and the ability to challenge non-compliance through administrative processes. These mechanisms ensure that the rule is adhered to without the need for judicial intervention, as they provide robust oversight and accountability. [See Defs’ MTD at 7].

Question 24

If the government is found to be in violation of the Rule or attempts to rescind the Rule, what, exactly, should the plaintiffs do?

Answer 24

Answer:
If the government is found to be in violation of the Rule or attempts to rescind it, the plaintiffs have several legal avenues to pursue. They could file a new lawsuit challenging the government’s actions, arguing that the violations or rescission are unconstitutional or that they violate statutory protections. Additionally, plaintiffs could seek a preliminary injunction to immediately halt any rescission or violation while the matter is litigated. Given the Rule’s current legal standing and the Court’s previous rulings, any such action would be taken seriously, and the plaintiffs would have a strong foundation to seek judicial relief quickly.

Question 25

If the plaintiffs allege a violation of the Rule right now, is there anything stopping them from amending their complaint?

Answer 25

Answer: Amending the appeal at this stage could be futile for several reasons. First, the Court may view any new allegations as separate from the original issues that were resolved by the summary judgment, thus requiring a new lawsuit rather than an amendment to the existing case. Second, the Court might find that the case is already moot because the Rule addressed the original claims, and any new issues might not revive the original controversy. Lastly, an amendment could delay the resolution of the current case, which may not be in the plaintiffs' best interest if the Court is inclined to finalize the matter based on the existing record. Therefore, pursuing a new legal action might be a more effective strategy than amending the current appeal.

Question 26

If the Court determines that we have the burden wrong and that the government actually has the burden to show that the case is moot under the voluntary cessation doctrine, how should we respond?

Answer 26

Thus, even if the burden rests with the government, the measures taken have effectively rendered the case moot, and no further judicial intervention is necessary. Even under this standard, the government has met its burden. The government has taken definitive and comprehensive steps to address the issues raised in the plaintiffs' claims by fully integrating the Rule into ORR’s operations. This integration demonstrates a genuine commitment to maintaining these protections, making it clear that there is no reasonable expectation that the challenged practices will recur. Moreover, the government's actions go beyond mere compliance; they reflect a structural and operational change within ORR, ensuring that the procedures outlined in the Rule are not easily reversible. The government’s consistent implementation of the Rule and the lack of any credible evidence suggesting a reversion to prior practices satisfy the requirements for mootness under the voluntary cessation doctrine. .

Question 27

Why should the Court decline to issue a declaratory judgment when the Final Rule already addresses the legal and procedural issues raised by Plaintiffs?

Answer 27

Answer: The Court should decline to issue a declaratory judgment because the Final Rule has already addressed the legal and procedural issues raised by Plaintiffs, rendering the need for further judicial declaration unnecessary. The rule provides the specific relief sought by Plaintiffs, making a declaratory judgment redundant and irrelevant to the resolved controversy. [See Defs' MTD at 7-8].

Question 28

What legal rationale supports the argument that the Court should not issue a declaratory judgment given the existence of the Final Rule?

Answer 28

Answer: The legal rationale is that a declaratory judgment is intended to resolve legal uncertainties or disputes, but here, the Final Rule has already provided clear and enforceable legal standards. Since the rule addresses the core issues raised by Plaintiffs, the Court's issuance of a declaratory judgment would be unnecessary and redundant. [See Defs' MTD at 7-8].

Question 29

How does the government plan to address the risk of a Congressional Review Act challenge to the Final Rule, especially given the current political climate?

Answer 29

Answer: The government acknowledges the risk of a CRA challenge but emphasizes that the Final Rule was developed with significant legal and procedural rigor, making it less vulnerable to such a challenge. The APA rulemaking process involved public notice, comment, and agency review, ensuring that the rule is well-grounded and justifiable. The government’s position is that the rule is consistent with congressional intent and legal precedent, which should mitigate the risk of a successful CRA challenge. [See Defs' MTD Reply at 7-8].

Question 30

How does the Congressional Review Act (CRA) resolution relate to the argument that there is no reasonable expectation of recurrence in this case?

Answer 30

The CRA resolution does not create a reasonable expectation of recurrence. Even though some opposition exists, the likelihood of the resolution succeeding is low, especially under the current administration, which supports the Rule. If a Democrat is elected, the Rule is likely to remain intact. Even if a Republican is elected and the Rule faces potential changes, the established procedures and systemic integration of the Rule into ORR’s operations make a reversion to prior practices unlikely. The speculative nature of political shifts does not meet the standard for proving the case is not moot.

Question 31

How does the government address the potential argument that the Final Rule, while addressing some concerns, does not fully resolve the underlying issues, leaving the case not entirely moot?

Answer 31

Answer: The government contends that the Final Rule addresses the core issues raised by Plaintiffs, rendering the case moot. However, it acknowledges that Plaintiffs essentially argue the rule does not address every specific concern. However, the primary relief sought has been provided at SJ and now in the rule. and any remaining issues are not substantial enough to keep the case alive.

Question 32

How does the government reconcile the fact that new challenges could arise under the Final Rule with its argument that the case is moot?

Answer 32

Answer: The government argues that the mootness doctrine applies because the issues raised in the current litigation have been resolved by the Final Rule. While acknowledging that future challenges could arise, the government asserts that these would be based on new circumstances and would not revive the current case. The focus is on the specific issues presented in the lawsuit, which have been addressed, rendering the case moot. [See Defs' MTD at 7-8].

Question 33

Why should the Court consider the case moot even if there is a possibility that the Final Rule could be challenged or amended in the future?

Answer 33

Answer: The government argues that mootness is determined by the present resolution of the issues at hand, not by speculative future possibilities. The Final Rule addresses the key concerns raised by Plaintiffs, and the government asserts that any future amendments would be subject to the same rigorous APA process, which would require new litigation if necessary. The current case should be considered moot because the existing controversy has been resolved. [See Defs' MTD at 6-7].

Question 34

How does the government address the argument that a declaratory judgment is still necessary because the Final Rule does not explicitly address all the legal uncertainties raised by Plaintiffs?

Answer 34

Answer: The government argues that the Final Rule sufficiently addresses the core legal uncertainties raised by Plaintiffs, rendering a declaratory judgment unnecessary. However, it recognizes that Plaintiffs may contend that some ambiguities remain. The government’s response is that the Final Rule provides the clarity needed to resolve the main issues, and any residual ambiguities do not justify further judicial intervention. [See Defs' MTD at 7-8].

Question 35

Why should the Court decline to issue a declaratory judgment if the Final Rule does not fully address the potential future legal challenges that could arise?

Answer 35

Answer: The government asserts that a declaratory judgment is unnecessary because the Final Rule addresses the primary concerns raised in the litigation. While acknowledging that the rule may not preempt all future legal challenges, the government argues that these would be speculative and not grounds for issuing a declaratory judgment in the current case. The focus is on the sufficiency of the rule in resolving the present dispute. [See Defs' MTD at 7-8].

Question 36

How does the government address the argument that the case is not moot because the Final Rule may be interpreted or applied inconsistently across different jurisdictions?

Answer 36

Answer: The government argues that the Final Rule provides clear guidelines designed to ensure consistent application across jurisdictions. However, it recognizes the potential for variation in interpretation. The government contends that any inconsistencies would be addressed through administrative processes and do not keep the current case alive. The rule’s overall structure is intended to standardize practices, which supports the argument for mootness. [See Defs' MTD at 7].

Question 37

What is the government’s response to the claim that a declaratory judgment is necessary to provide a clear judicial interpretation of the Final Rule’s scope and application?

Answer 37

Answer: The government argues that the Final Rule itself provides sufficient clarity and that additional judicial interpretation is unnecessary. However, it concedes that Plaintiffs may seek further clarity through a declaratory judgment. The government’s position is that the rule was developed through a comprehensive process that included public input, which should suffice to clarify its scope and application without the need for further judicial involvement. [See Defs' MTD at 7-8].

Question 38

How does the government justify its position that a declaratory judgment is unnecessary when Plaintiffs might argue that the Final Rule still leaves some rights undefined?

Answer 38

Answer: The government justifies its position by asserting that the Final Rule provides the key procedural safeguards that were at the heart of the litigation. It argues that the rule’s detailed provisions sufficiently define the rights and processes involved, reducing the need for a declaratory judgment. The government acknowledges that Plaintiffs may feel some areas are not fully defined, but contends that these do not rise to the level of requiring further judicial clarification. [See Defs' MTD at 7-8].

Question 39

What is the government’s response to the argument that the Final Rule does not moot the case because it only addresses procedural concerns, not substantive rights?

Answer 39

Answer: The government responds by emphasizing that the procedural protections provided by the Final Rule are closely tied to the substantive rights of the affected individuals, particularly unaccompanied children. It argues that by securing these procedural safeguards, the rule effectively addresses the substantive concerns that were raised, thereby mooting the case. The government contends that the distinction between procedural and substantive rights in this context is not sufficient to keep the case alive. [See Defs' MTD at 6-7].

Question 40

How does the government address the concern that the Final Rule might not be enforceable in a way that fully resolves the issues raised by Plaintiffs, thus leaving the case not entirely moot?

Answer 40

Answer: The government addresses this concern by arguing that the Final Rule includes specific enforcement mechanisms that ensure its provisions are carried out effectively. It contends that these mechanisms, combined with the procedural safeguards in the rule, are sufficient to resolve the issues raised by Plaintiffs, making the case moot. The government acknowledges the potential for enforcement challenges but argues that these do not undermine the rule’s overall ability to resolve the central controversy. [See Defs' MTD at 7].

Question 41

How does the Plaintiffs’ failure to challenge the adequacy of the notice-and-comment period impact their ability to argue that the Final Rule is procedurally flawed?

Answer 41

Answer: Plaintiffs’ failure to challenge the adequacy of the notice-and-comment period significantly impacts their ability to argue that the Final Rule is procedurally flawed. By not raising this issue, Plaintiffs have waived a potentially important argument, making it more difficult for them to claim that the rule was developed improperly. This waiver strengthens the government’s position that the rule is procedurally sound and that the Plaintiffs’ case lacks merit. [See Defs' MTD Reply at 6].

Question 42

What about the possibility of inconsistent application of the Final Rule across jurisdictions?

Answer 42

The rule does just the opposite. It creates a common framework where one didn’t exist before. Enduring consistency.

Question 43

How can the rule be enforced?

Answer 43

Legal challenges

Question 44

What claims are settled and dismissed? And what claims are mooted?

Answer 44

Answer: The Rule moots the unfit custodian and step-up class claims. The settled claims are psychotropic meds, legal rep, and disability.

Question 45

How does the government respond to the argument that *Glazing Health* doesn’t apply because it involved statutes enacted by Congress, while the Foundational Rule is just a regulation created by an agency?

Answer 45

The government would argue that the principles from *Glazing Health* still apply because agency regulations, like the Foundational Rule, carry the force of law once properly enacted through the rulemaking process. These regulations are binding on the agency, similar to statutes, and are presumed to be followed in good faith. Additionally, the process of creating the Foundational Rule involved significant procedural safeguards, akin to legislative processes, which ensure that the Rule reflects considered policy decisions. Without specific evidence that the agency intends to rescind or alter the Rule, the presumption is that it will continue to be enforced, making the plaintiffs' concerns speculative and not undermining the application of *Glazing Health* principles.

Question 46

What are the remaining two classes and who do they include

Answer 46

Step up: minors who are where will be placed in a secure facility or whom ORR has continued to detain in any facility for more than 30 days without being afforded a notice and opportunity be heard before a neutral attached decisionmaker regarding the grounds for such placement Unfit custodian: minors whom ORR is refusing or will refuse to release to parents or other available custodians within 30 days of the proposed custodians submission of a complete FRP on the ground that the proposed custodian is or may be unfit

Question 47

Which classes are settled

Answer 47

Legal rep, disabilities, drug administration

Question 48

When did the court issue it’s decision on partial summary judgment

Answer 48

March ‘22 ECF 376

Question 49

What did Pls win on SJ

Answer 49

In relevant Park, the court, granted partial summary judgment to plaintiff on the due process, allegations of the step-up and unfit custodian classes

Question 50

When did the court issue preliminary injunction?

Answer 50

Aug ‘22

Question 51

What were the deficiencies the court identified in its summary judgment decision regarding step up class?

Answer 51

Court imposed two additional pre-deprivation procedures first OR must develop written policies for out of network RTC placements so minors placed in those facilities can understand the reason for their placement Second notice of placement must resemble the 2020 examples provided by the parties for minors at Shandoah juvenile detention center, which set for the reason for placement and supporting evidence and should automatically be provided within 48 hours of step up

Question 52

What did the court not agree with with plaintiff in it summary judgment decision

Answer 52

That due process requires notice in a hearing in advance of step up

Question 53

What is included in the definition of a close relative?

Answer 53

Beyond parents, but still close (eg sibling, grandparent, aunt-uncle, first cousin, other “immediate biological relative” through marriage or adoption, includes Cat 2

Question 54

And it’s summary judgment order what did the court order with regard to the unfit custodian class?

Answer 54

Notice to potential spotter sponsors of the base for the negative homestudy or sponsorship, denial, ability to appeal to the assistant secretary, and the opportunity to present evidence and witnesses These cat 1 protections be extended to cat 2

Question 55

when was the notice of proposed rulemaking issued, when was the rule and when was the rule effective?

Answer 55

October 2023 April 2024 June 2024

Question 56

What were the three main sources of inspiration for the rule?

Answer 56

Litigation (Lucas R/Flores) HSA TVPRA

Question 57

In what ways does the rule EXPAND rights and protections beyond the scope of litigation?

Answer 57

Defines terms and codifies principles (consistency and clarity) Sets data reporting standards (transparency and accountability) Sets policies for smooth transfer of UC between facilities) Sets procedures for determining age (clarity and accuracy) Adjusts emergency standards (for flexibility) Establishes independent ombuds office for concerns about ORR policies and practices

Question 58

In what ways does the rule EXPAND rights and protections consistent with the scope of litigation?

Answer 58

Ex B = Step up: extends stds for RTC placement to OON-RTCs; places BOP on ORR for holding UC In restrictive placements; 48-hr notification and hearings for UC in such placements; PRP hearings (w/ lang interpretation); Also, not just supporting evidence shared (per PI), countervailing evid too! Ex C = unfit: notice and appeal for denied sponsors, 90 day review by supv staff, mandates 10/14 adjudication of sponsor apps. Also: countervailing evidence too.

Question 59

Best argument for mootness as a current time frame, what rule applies, and what can it be based on?

Answer 59

Brach v Newsom FRCP 12(b)(1), not (6) Facial (sufficiency of allegations) or factual ( dispute of the truth of the allegations)

Question 60

Why can’t Pls maintain their claims to guard against future policy changes?

Answer 60

Moot, thus lack standing; not suffering harm Also, not ripe and ct has no authority over adjudicating unforeseeable circumstances Any relief would be advisory bc not alter the status quo

Question 61

Why can’t Pls maintain their claims to guard against future policy changes?

Answer 61

Moot, thus lack standing; not suffering harm Also, not ripe and ct has no authority over adjudicating unforeseeable circumstances Any relief would be advisory bc not alter the status quo

Question 62

What are the three major exceptions to muteness?

Answer 62

Collateral legal consequences (w) (update complaint based on new rule) Wrongs capable of repetition review (w) (action duration too short) Voluntary succession (free to resume the conduct)

Question 63

What is “good faith” wrt gov and voluntary cessation?

Answer 63

Courts presume that a government entity is acting in good faith when it changes its policies

Question 64

What is the case that sets the precedent for gov challenged behavior being “xxx” to recur? And what is the required showing?

Answer 64

“Reasonably be expected” Brach v Newsom “ More than a mirror, physical or theoretical possibility it must be supported by evidence indicating that the challenge policy likely will be reenacted”

Question 65

Case where Glazing health applies to rules promulgated through the regulatory process

Answer 65

Ramos v Nielsen and Washinngton Cattleman’s

Question 66

Even if court doesn’t apply Glazing Health presumption and place burden on Pls, what’s the next best cases? What’s the standard?

Answer 66

Brach, Rosebrock The challenge behavior cannot reasonably be expected to recur

Question 67

Response to “the rule is new”

Answer 67

Wrong! May only be months old, but it was issued after 18 months of ORR compliance with the PI

Question 68

How many comments were submitted in response to the NPRM? Which ones did ORR respond to? Why?

Answer 68

73k All significant comments (those which raise relevant points and which, if adopted, would require a change in the rule)

Question 69

Pls point out “the long term viability of the rule is uncertain at best” and “nearly half of Congress supports a resolution to abrogate the rule”

Answer 69

Doctrine of mootness is based on a live case and controversy now

Question 70

Response to Pls arg that SJ only gave Pls partial relief they claim is due

Answer 70

The test is not whether summary judgment gave plaintiffs everything that they claim is due, the test is whether the court finds that pls are actually due the relief they seek Here, it did not

Question 71

What’s the case involving no mootness when executive actions are involved

Answer 71

Indigenous environmental network v. Trump

Question 72

Best argument for countering Pls challenge wrt: form the gov action took

Answer 72

Riggers of the legislative process versus unilateral executive action

Question 73

Best argument for countering Pls challenge wrt: time in which we consider mootness

Answer 73

The rule is new, but the preliminary injunction was in place for 18 months

Question 74

Best argument for countering Pls challenge wrt: whether the government ceased challenged activity because it concluded it was improper or instead continues to argue vigorously that its actions were lawful

Answer 74

Interpreting Const, TVPRA, HSA, reasonable minds can differ No app taken on SJ dec Immediately implemented, then enshrined and expanded

Question 75

Best argument for countering Pls challenge wrt: whether the repeal of legislation is due to the prodding effect of litigation

Answer 75

Not a weakness but a strength Enshrined and then expanded Need for framework and then enhanced

Question 76

What is the relevance of the government having historically resisted giving noncitizen children due process?

Answer 76

doctrine of mootness. The promulgation of the Foundational Rule fundamentally changes the legal landscape by embedding robust, enforceable protections into ORR’s operations . The Rule’s comprehensive nature and the government’s demonstrated commitment to its implementation make it highly improbable that the alleged violations will reoccur. Therefore, plaintiffs cannot meet the burden of proving that these issues are ‘reasonably capable of repetition’ when the government has taken definitive, lasting actions to prevent them.”

Question 77

What OTHER protections do Pls request now wrt unfit custodian

Answer 77

All proposed sponsors should be able to challenge sponsorship denials, regardless of familial relationship BUT at SJ, court found a constitutional interest with close relatives AND noted burden on govt Pls also requested automatic hearing in Prop Ord. (Instead of a request within 30 days), but Ct did not order that. Regardless, didn’t appeal!

Question 78

What OTHER protections do Pls request now wrt step up

Answer 78

No oppty to be heard before restrictive placement; no auto placement review hearings; no restraint against ORR replying on step up to delay reunification But, pls don’t point to where they requested this. Regardless didn’t appeal

Question 79

Response to: wouldn’t declaratory judgment incorporating the SJ decision offer some protection?

Answer 79

It wouldn’t make sense! The procedures that existed at time of SJ were replaced by the Rule, Regardless, even if the court were to distill its co situational findings into DJ, it would be purely an academic, advisory be no controversy and regardless Pls already have the SJ order Finally, pls themselves acknowledge that DJ would restrain ORR in “no appreciable way” hence, where’s the standing?

Question 80

What’s my best response to: having the constitutional rights of children settled as a declaratory judgment, not subject to political inclinations?

Answer 80

Mootness “While the plaintiffs may seek a declaratory judgment to settle constitutional rights, the Foundational Rule already provides comprehensive, enforceable protections that are not subject to political whims. The government has taken concrete, legally binding actions to embed these protections into ORR’s operations, ensuring their permanence.

Question 81

Rather than saying that ORR merely implemented the PI, the agency wants us to describe it as:

Answer 81

ORR rapidly, deliberately and fully incorporated, the courts PI through extensive training to its federal staff and grantee care providers on the PI’s requirements and made them a routine part of their operations for close to two years

Question 82

How does the durability of the rule compare to that of a congressional passed law

Answer 82

Nice and comment rule making Force of law Same procedure to reverse In fact, more barriers than changing legislation because the rule cannot be overcome by a simple majority

Question 83

Has CA9 said whether a subsequent round of notice and comment rule making us sufficient for a showing of reasonable expectation?

Answer 83

It is not! Per Brach!

Question 84

Provide an example of something that the court explicitly considered and DIDNT order at SJ, that the gov put into the rule

Answer 84

Interpretation at PRP hearings

Question 85

What are the Rosebrock factors?

Answer 85

1. Policy change is evidenced by language broad in scope and unequivocal in tone 2. Change addresses all objectionable measures 3. Case was the catalyst for the new policy 4. Length policy in place 5. Officials engaged in conduct similar to that challenged by Pls

Question 86

What were the other purposes of the Rule

Answer 86

HHS has overtime come to view that it needs a comprehensive regulatory program to manage its role in the care and custody of unaccompanied children consistent with child welfare principles as discussed in the preamble HHS decided to pursue broad rule to replace a prior rule and the codify in full, the Lucas R requirements (Also shows good faith and that former policies are NOT entrenched)

Question 87

Response to: OR has never conceited that its former policies were unconstitutional

Answer 87

Plaintiff are incorrect to suggest that the government must dis out its prior position in order to avoid application of the voluntary succession doctrine. The ninth circuit regularly dismisses challenges to rescinded policies as moot without suggesting the government must concede the illegality of prior conduct.

Question 88

Response to: the government did not voluntarily change its behavior because it was ordered to change by the court

Answer 88

There’s a world of difference between simply complying with a PI order through internal guidance and what HHS has done here, formally, changing it regulations and anchoring these new procedures with a comprehensive program for the Care custody of UC

Question 89

When does the current legislative session end?

Answer 89

Est Jan 3, 2025

Question 90

Is there a deadline by which Congress must act on a CRA resolution

Answer 90

Pls say no, BUT THERE IS! The end of the current session, then it dies. Could be reintroduced. Rule could also be invalidated by legislation, but Pls waive this. Regardless not reasonably expected

Question 91

That’s the CRA process?

Answer 91

Joint resolution proposed Discharged from S and H committees Approved by a supermajority of Congress (bc of expected veto)

Question 92

Response to the government doesn’t show that the change is permanent

Answer 92

After glazing, it is not important whether a policy is permanent or entrenched, it is that is merely a description of the range of policy changes from temporary to entrenched, and does not suggest that the government has the burden to prove permanency

Question 93

Response to: the case is not moot because plaintiff did not receive all of the relief that they wanted

Answer 93

Plaintive theory that any portion of their step up and unfit custodian class claims survived summary judgment is wrong although they did not receive everything they wanted that was an adjudication on the merits and there’s nothing left now to adjudicate

Question 94

Response to: the courts summary judgment decision goes to the merits rather than the threshold question of muteness

Answer 94

Waved bc footnote Regardless, plaintiffs rely on Flagstaff medical, which dealt with settlement obligations not comprehensive regulatory changes like the rule

Question 95

How many things do plaintiff point to to show that the rule doesn’t go far enough

Answer 95

3, waiving any others In any event, it does not solve mootness hurdle bc can’t show a live case and controversy

Question 96

Why can’t the court enter DJ?

Answer 96

1. No Jx (moot and also no redressability 2. No merits: would not advance pls goals (SJ dec) Regardless, DJ is improper where based on speculative future harms Also, must base it on current Rule, not abandoned framework

Question 97

What is redressability?

Answer 97

To invoke the jurisdiction of article 3 quart plaintiff must show that their alleged injuries are likely to be redressed by their requested relief Must do for EACH form of relief sought (Friends of the Earth)

Question 98

Why would it be futile for plaintiff to amend their complaints?

Answer 98

Because they received substantial advantages bought about by the new rule

Question 99

Should the court grand continuing jurisdiction over this case?

Answer 99

Plates are only entitled to the relief specified in the three settlement agreements

Question 100

Defs argue that conceding unconstitutionally of prior conduct is irrelevant

Answer 100

Waived No, we say that Pls are wrong that it’s a requirement. Our point was that cts dismiss as moot cases without such concession Regardless,ORR’s adoption of PI and prom. Of Rule = more relevant as a consideration AND no single Rosebrack factor dispositive anyway

Question 101

Is the reasonable expectation test “more likely than not”?

Answer 101

No, the risk does not have to be more likely than not; however, The plaintiff must show that there is more than just a speculative or hypothetical chance of recurrence; there needs to be a concrete possibility. In other words, based on how things stand right now. Based on the current state of things, they cannot meet their burden bc they only point to two things: CRA and the change in administration.

Question 102

If pressed about the effect of the court, ordering the government to improve, and that’s the only reason that it did it

Answer 102

The government was told to do something, and it did, that should be acknowledged as a positive, especially where it wasn’t just a guide update, it was put into the foundational role and no appeal was taken

Question 103

If the government changes the foundational rule, what protections does the plaintiff have?

Answer 103

Time New APA claim based on new facts