“If you are on FOX News when you don’t remove someone; and it is a drunk driver that kills a citizen—you know, we have ordered removal, and they are not gone and they kill someone, I don’t think you would be on FOX News for letting Miss Peters stay.” — Ninth Circuit Court of Appeals Judge Consuelo Callahan to Janet Napolitano’s government lawyer, Patricia Bruckner
As the U.S. Chamber of Commerce renews their efforts to pass the Senate’s stalled immigration overhaul that includes legalizing millions of undocumented persons, the U.S. Citizenship & Immigration Services (USCIS) continues its history of trying to kick out taxpaying, crime-free, professional legal immigrants—including earthquake engineers stuck in the broken system.
In the court proceeding at the Ninth Circuit Court of Appeals in Pasadena, California, Patricia Peters v. Janet Napolitano, No: 10-55889, the three panel of judges appear in disbelief as to why the government has been trying to deport Peters. This case was originally filed against President George Bush’s DHS chief Michael Chertoff and was automatically transferred to the new DHS chief Jeh Charles Johnson after Napolitano resigned.
Judge Callahan quizzed Office of Immigration Litigation (OIL) lawyer under the DHS, Patricia Bruckner, “Why are you so intent on removing this woman? In probably all of the people I have seen in ten years, she seems to be the least culpable and the most productive.”
Judge Callahan quizzed the Office of Immigration Litigation (OIL) lawyer under the DHS, Patricia Bruckner, “Why are you so intent on removing this woman? In probably all of the people I have seen in ten years, she seems to be the least culpable and the most productive.”
“If you are on FOX News when you don’t remove someone; and it is a drunk driver that kills a citizen—you know, we have ordered removal, and they are not gone and they kill someone,” Ninth Circuit Court of Appeals Judge Consuelo Callahan said to Bruckner. “I don’t think you would be on FOX News for letting Miss Peters stay.”
“You would probably not make the news at all but you will go home and sleep better at night,” Judge Richard Tallman added.
“Perhaps you can address the question Judge Callahan raised earlier which is: Why are we here?” Judge Richard Clifton asked.
Patricia Audrey Peters legally came to America in 2001 from the United Kingdom—twelve years ago. She has spent the last five years in heart-wrenching, time-consuming litigation with the USCIS when they denied her adjustment of status application from H1-B Visa holder to permanent resident—the Green Card over what the government initially claimed was an outdated form. For over three years, Peters has been fighting deportation.
“This case seems like a triumph of bureaucracy over reality because just recently the government has hit upon the proposition that the problem wasn’t an outdated form.” Judge Clifton said to Bruckner, “Everybody appeared to have assumed that the problem was it was an outdated document which in fact was not outdated under the regulations.”
Peters, as her attorney, Kevin Mokhtari of O’Melveny & Myers, said when he first addressed the court, “did not come [to America] under clandestine means. She has committed no criminal act that has put her before this tribunal.”
“Instead she is a professional. A skilled worker who has come here from the U.K. and is actually here on a HB1 Visa,” he continued. “She pays substantial taxes. She works for a venture capital firm and frankly if the economy is to turn around it is people like Miss Peters who are going to bring capital to this country and create new jobs.” Peters is also a homeowner.
Turning to Bruckner, the judges tried to figure out why the government had denied Peters’ application in the first place. At one point, seemingly frustrated, Judge Clifton asked her, “So why exactly is that application not a valid application? You told me there was something missing, she’s not eligible. Why is she not eligible? And I hope there is a reason that’s substantive other than paperwork.”
Bruckner’s initial defense on behalf of the government changed mid-argument from an alleged “phantom filing” to claiming Peters’ application “was appropriately rejected” by a contractor because of incorrect filing fees. “The company did not follow the filing instructions,” Bruckner said. Shortly thereafter she admitted, “Actually, the petitions are returned [by the contractors] so we do not know exactly—”
Incredulously, Judge Tallman asked her what the filing fee was.
Bruckner said because the USCIS fees and forms change periodically, “There was a base fee of $185. Then if the company is not a nonprofit, and that’s determined by the Supplement [to the I-129 form that changed in 2005], there is a fee of either $750 or $1500. $750 if your company has fewer than 25 full time employees. I am assuming Impact Capital has more than that and then there is a mandatory $500 [fraud prevention] fee.”
“So maybe the fee would have covered your travel expenses to come out here to argue this case,” Judge Clifton responded, adding, “I have a lot of trouble understanding the logic about why we’re here.”
Judge Tallman followed-up incredulously, “So now we are talking about a $600 difference?”
Bruckner, who acknowledged that checks were submitted with Peters’ petition, responded, “One for $940 and one for $500,” and continued to justify the government’s position undaunted. “Well, the $500 fee was correct but the $940— none of the possibilities add up to $940. If, it should have been $185 plus either $750 or $1500 so if they had fewer than 25 employees and were supposed to pay $750; it would have been $935 and actually the agency has to—”
In what Judge Tallman ultimately called a “nightmare of bureaucracy,” one has to ask if the USCIS has been attempting to throw out a professional, taxpaying legal immigrant for overpaying the agency $5.00. Peters’ employment sponsor had less than 25 employees. Once can’t be sure considering Bruckner is not clear on the facts either.
In a mind-blowing moment, Bruckner proudly cited another case she had personally handled as an example of how the USCIS makes decisions when approving or denying legal immigrants permanent status. In Alimordi v. USCIS, the government “denied” an earthquake engineer because his lawyer “late filed,” she told the judges.
“We have to treat all applicants the same. It doesn’t matter if they are an earthquake engineer,” she said, calling it a “valid” position.
Until the very end, Bruckner held firm that “the government’s position” in trying to remove Peters “[was] substantially justified.”
What Washington politicians do not want the public to know is that legal immigrants like Peters and Alimoridi are a part of a longstanding pattern of arbitrary, Vegas-like, unpredictable lawlessness at the USCIS—the broken immigration system where legal immigrants spend years, even decades, waiting in backlogs or in court. The system is so broken it has spilled over and clogs up the courts.
In Kazarian v. USCIS, for instance, because a USCIS adjudicator may decide whether or not the legal immigrant and their employment sponsor should have filed under ““extraordinary ability” versus “exceptional ability” or vice versa a legal immigrant can also be denied. It has been such an issue plaguing the USCIS and driving highly skilled individuals out of America that the USCIS’ Ombudsman attempted to address it (again) in their CIS annual report 2012 as I reported in Crime & Incompetence: Guide to America’s Immigration Crisis.
Peters’ and countless other legal immigrants stuck in the broken immigration system fight to stay and remain legal in the United States. Over five months after this hearing occurred, the case remains unresolved.
United States Courts for the Ninth Circuit
Patricia Peters v. DHS No: 10-55889
August 6, 2013
LEGAL IMMIGRANT PATRICIA PETERS’ ATTORNEY KEVIN MOKHTARI: May it please the court. My name is Kevin Mokhtari of O’Melveny & Myers and I represent Patricia Audrey Peters. In order to fully understand this case; it’s critical to understand a very brief introduction to Miss Peters. Miss Peters is a H1-B Visa. She did not come here under clandestine means. She has committed no criminal act that has put her before this tribunal. Instead she is a professional. A skilled worker who has come here from the UK and is actually here on a H1-B Visa. She pays substantial taxes. She works for a venture capital firm and frankly if the economy is to turn around it is people like Miss Peters who are going to bring capital to this country and create new jobs.
JUDGE CONSUELA CALLAHAN: Well, I think we know the background. And frankly one of the questions I wanted to ask the both of you is, I mean, we do a lot of immigration cases and a lot of people have serious felonies–there is all sorts of things. They have come illegally and she is a little bit different. Some of these cases we cases we end up mediating but why do you think that the government is so intent on removing your client?
MOKHTAR: That’s a good question because they waited until after the district court decision to initiate removal proceedings. There is a number of reasons but frankly I don’t really know why there are so intent on her because—
JUDGE CALLAHAN: Has there been any mediation efforts?
MOKHTAR: There were initially mediation efforts, but those fell through when the litigation counsel from the government side was changed. So, I mean this case I think—
JUDGE CALLAHAN: Was that Ninth Circuit mediation or—
MOKHTAR: This was District Court your Honor.
JUDGE CALLAHAN: Okay. All right. I am sorry. I was just curious about that because it does seem to be a bit of a different case than we usually see.
MOKHTAR : I agree your Honor. The only thing standing before Miss Peters are the two issues of this case. One jurisdictional question which is important and two: the substantive question which we reach only if the jurisdictional question is answered.
JUDGE RICHARD TALLMAN: Well, she is in removal proceedings now, correct?
MOKHTAR: She is.
JUDGE TALLMAN: And in defense of those removal proceedings she had requested adjustment of status which the immigration judges have the power to grant.
MOKHTAR : She has, your Honor.
JUDGE TALLMAN: If for some reason the immigration judge denies relief she can petition the board of immigration appeals, and if she still loses she can then petition our court just like any other removal case, right?
MOKHTAR: Those are all true your honor.
JUDGE TALLMAN: So why do we have jurisdiction to hear this case now if we don’t have a final order on removal pending against her?
MOKHTAR: The reason why this court has jurisdiction is because unlike your honors opinion in Cabaccang. This case has a different procedural posture. There, the district court ruled while there were simultaneous pending removal proceedings—so it did not have jurisdiction at the time it ruled. Here the district court ruled while there were no removal proceedings pending. The removal proceedings were initiated after the judgment was entered. That’s an important distinction because now the Ninth Circuit has jurisdiction under 28C USC1291 to review the final decision of the district court.
JUDGE TALLMAN: That’s the question though because the problem is that the district court’s order cannot grant her any effective relief at this point because of the fact that she is in removal proceedings so I’m not sure that the distinction you are trying to draw from Cabaccang holds.
MOKHTARI: Well, the important thing that I believe is – she is asking for declaratory relief. That she falls in this no fault or technical reasons exception. And the district courts found that she did not—
JUDGE TALLMAN: Well the district court found that under an APA review that U.S. Citizenship and Immigration Services decision was not arbitrary and capricious. You have a much more favorable standard of review of removal proceeding, do you not? If, if substantial evidence does not support whatever the decision is by the immigration judge.
MOKHTARI: It is more favorable but the question really is why—the government doesn’t cite a single case saying that. It creates and odd situation. The District Court ruled and at no point, it had – we can all agree it had, the government conceded that there was proper jurisdiction at that time. Then it initiated removal proceedings so only then did the Cabaccang rule come into play by divesting it of jurisdiction. Although she does have a better standard for the removal proceedings, nevertheless, the issue before this court is whether or not the district court erred in making its ruling.
JUDGE TALLMAN: Well, I am not sure if you want us to go there because if the standard is arbitrary and capricious, a less favorable standard—I’m not giving you an advisory opinion here but I am just pointing out the differences in standard of review. Be careful what you ask for because if you get a decision from us—if we do decide that we have jurisdiction you could end up with an affirment of the District Court’s decision. But then I think your answer is, ‘Well, that well and good. Thank you very much Ninth Circuit but I also have a pending removal proceeding now, and I can continue to litigate whether or not she is entitled to an H1-B Visa in that proceeding.’ So doesn’t that render the judgment you’ve got from the District Court effectively irrelevant because it doesn’t really afford any relief?
MOKHTARI: I agree with you Honor’s sentiment . I think—when we looked at this case, we thought that the worse scenario would be what your Honor laid out: that this court affirmed the District Court. We completely agree with that.
JUDGE TALLMAN: What’s the effect of that decision? I guess what I am struggling with is a question of whether or not the District Court’s judgment which purported to be a final judgment is effectively moot given the pendency of the removal proceedings where she can seek and obtain the same relief that she sought from the District Court.
MOKHTARI : Well we know that the immigration judge that she is before has been punting essentially waiting on the Ninth Circuit and has this now, this District Court Order—a final judgment from the District Court. It may be moot. In realistic, and pragmatic—
JUDGE TALLMAN : It’s not binding on the immigration judges is it?
MOKHTARI: No, it is not binding but nevertheless—
JUDGE CALLAHAN: Is the government arguing? Let’s say we were to affirm with the government arguing that this would somehow be law of the case and therefore
she wouldn’t be entitled to—
MOKHTARI: They haven’t argued that but—
JUDGE TALLMAN: But it’s not the same case is it? We’ve got, I mean, we’ve got a civil action under the Administration Procedures Act entitled Peters v. Napolitano that you are here on. There is also a pending administrative law proceeding entitled Holder v. Peters in which she is seeking on a different side of the DHS house. I guess the Immigration & Customs Enforcement side relief from a pending removal hearing which was initiated by a notice to appear. So I think—I’m not sure how you could say it is law if it is not the same case.
MOKHTARI: Right, well.
JUDGE TALLMAN: Particularly is the standards of review are different. I mean that would be like saying if you lose in a criminal case the government can’t come after you civilly and re-litigate the same issue but the burden of proof is reasonable doubt versus preponderance.
MOKHTARI: Of course. I think that what is at issue is with that District Court order looming, the immigration judge will inevitably look at that order and that is part of the problem why we distinguish ourselves from Cabaccang.
JUDGE TALLMAN: But how is the District Court’s decision even relevant to what the immigration judge is doing? The District Court’s decision is that Citizenship and Immigration Services did not abuse its –I should not say, did not abuse—did not act in an arbitrary and capricious fashion, when they refused to adjust her status because she stayed longer than 180 days. The only issue of the immigration judges have been asked to decide is whether or not she is currently here without lawful status and therefore subject to being removed. And she’s saying, ‘Well, I have a defense to that. I’d like to apply for an adjustment of status and restore my Visa. And as I understand it, he has the power to do that if he wants to.
MOKHTARI: Right but nevertheless has not acted for some period of time.
JUDGE CALLAHAN: All right. If we said that—I understand you to say ordering that you are first asking the court to find jurisdiction and reverse the District Court but if that didn’t occur to dismiss for lack of jurisdiction and you last—what you would consider to be the death knell or the worst for your case would be to affirm the—find jurisdiction and affirm the District Court.
MOKHTARI: Yes your Honor.
JUDGE CALLAHAN: It’s sort of an odd posture to be in front of court.
MOKHTARI: Right, well, I mean, I’m responding to Judge Tallman’s questioning about the different standards, I think ultimately in being realistic and frank with the court the worst thing that would happen is we would affirm that District Court so we agree that ultimately it should be a matter of—our position has been from the beginning in the briefing that the District Court had jurisdiction, this court had jurisdiction per 1291 and that the District Court erred because—
JUDGE CALLAHAN: The District Court was arbitrary and capricious I guess.
(Other Judges: The Agency)
JUDGE CALLAHAN: The agency was …
JUDGE RICHARD CLIFTON: That was your position but you also don’t want to lose because the worst case is to get to this place, you have jurisdiction and has us affirm so what is it that you are really asking us to do? The ideal world you might have option that either I win or the case goes away—a no lose but it doesn’t really work that way. What is it that you want us to do with this case? Dismiss it for lack of jurisdiction or affirm or reverse? Okay, you don’t want affirm. That’s the worst case. So you have two options. Reverse with the risk of an affirm or dismiss for want of jurisdiction.
MOKHTARI: Well, I think ideally because of the different standard we would dismiss and that would be the safer bet.
JUDGE TALLMAN: And she would not be harmed in any way if we do that because she can still seek the same relief with a more favorable standard proof before the immigration judge.
MOKHTARI: That’s true.
JUDGE TALLMAN: The one scenario we didn’t talk to you about was happens if we reverse the District Court? What would be the effect of a reversal of the District Court’s decision?
MOKHTARI: That I have thought through in terms of—we briefed about Louis Vidal that this court has all the facts in front of it. The facts are essentially decided. We are not going to go back and change any of those things that happened in 2006 and 2007 and having had all that and the fact that the USCIS has already twice already ruled on it. One time initially and then a motion for reconsideration this court could issue judgment as a matter of law.
JUDGE TALLMAN: So direct the Department of Homeland Security USCIS to adjust her status?
JUDGE CALLAHAN: Do you have any precedent for that?
JUDGE TALLMAN: Yeah. I mean there is a Supreme Court case that I think stands right in your path.
JUDGE TALLMAN: Called INS v. Ventura.
MOKHTARI: Right, well. The specific thing that we want is to send it back with instructions that she follows within the no fault or the technical reasons exception. And then once that automatic bar is lifted then to analyze—
JUDGE TALLMAN: Isn’t that a factual determination the agency made? In other words, it’s dependent, I guess the problem was she couldn’t prove when or if her attorney, I assume it was her former attorney now, re-filed the necessary paperwork. Is that right? And so the agency said, ‘Well you must have stayed in out of status longer than six months.’
MOKHTARI: Right. And naturally it is a factual determination. I’m not going to rehash and re-litigate the facts but the worst—
JUDGE TALLMAN: You are asking us to do that are you not? If you want us to direct the agency to adjust the status, you are asking us to overturn that factual determination and direct the agency to nonetheless adjust status.
MOKHTARI: Not quite, because I think what we are asking for specifically is not to re-look at those facts but to simply say that those facts are enough. They never analyzed whether or not those facts constituted the no fault or technical reasons exceptions that’s the—
JUDGE TALLMAN: So we would declare that as a matter of equity she should be deemed to have been deemed to be out of status for less than six months?
MOKHTARI: In essence yeah.
JUDGE TALLMAN: Or that the agency erred in refusing to accept the application because it was on an outdated form?
MOKHTARI: That’s the technical part–
JUDGE CALLAHAN: It sort of seems like we are making it up as we go along.
JUDGE TALLMAN: Without any law to support it other than the, you know the equity seemed to be strong in terms of whether Miss Peters should ultimately be afforded relief. The question is who do you make the pitch to and you’ve got an ear, you’ve got an immigration judge, you’ve got a forum in which you’ve got to make all these good arguments as a defense to removal and if you don’t like the justice you get there you can come back here.
PICK UP YOUTUBE VIDEO TRANSCRIPTION
JUDE TALLMAN: Well, why don’t hear from the government. Let’s see whether or not your opponent can help us, enlighten us on these interesting little questions.
OFFICE OF IMMIGRATION LITIGATION (OIL) under DHS ATTORNEY PATRICIA BRUCKNER: Good morning your Honors, my name is Patricia Bruckner and I represent appellee Secretary Napolitano. Appellee has two major points to make this morning. First, ummm, we ask the court to vacate the District Court judgment, with instructions to dismiss the case for lack of subject matter jurisdiction. Secondly, if the court finds it has jurisdiction we ask the court to affirm the District Court finding that USCIS has substantial evidence in denying Miss Peters’ adjustment application.
JUDGE CLIFTON: Perhaps you can address the question Judge Callahan raised earlier which is: Why are we here?
JUDGE CALLAHAN: I mean, we all have been doing immigration cases here for over 10 years and so many people – you know it is almost like—we probably can’t count the number of affirmances that we have done in cases when people, not that the government ever removes people, but in terms of that we actually do that. Why are you so intent on removing this woman? In probably all of the people I have seen in ten years, she seems to be the least culpable and the most productive.
BRUCKNER: You make a very good point, your Honor. Umm, the government is not intent on removing Miss Peters, quite the contrary. This litigation—
JUDGE TALLMAN: Then why didn’t you mediate this case and grant her the relief that she was asking?
BRUCKNER: Umm, there was mediation. It was in the Ninth Circuit and I was the government’s attorney at that time. Miss Peter’s attorney brought up a strange issue about a phantom filing in the District Court and we knew that removal proceedings were ongoing and the agency counsel could find no basis to grant adjustment to Miss Peters and umm—
JUDGE TALLMAN: Let me suggest one to you. Why can’t the agency treat the original application, even though it was on an outdated form as if it were a valid application for adjustment of status? That’s sort of a Nunc Pro Tunc (meaning look at the application today as if it were now, a retroactive legal effect) solution. That then solves the problem that she was out of status for more than six months and presumably you could then extend her H1-B Visa could you not?
BRUCKNER: Umm if the agency in its discretion granted a Nunc Pro Tunc application that’s correct your Honor. No Nunc Pro Tunc application has been made by Miss Peters. (NOTE: Peters could not file a Nunc Pro Tunc because the USCIS had refused to acknowledge the application was valid. When it was admitted it was valid, the immigration Judge stalled the hearing.)
JUDGE TALLMAN: We are talking mediation here Counsel. As Judge Clifton said, ‘We are making this up as we go along.” But what’s wrong with my proposal? And I’m not trying to mediate the case on the behalf of Miss Peters.
JUDGE CALLAHAN: But it is sort of the type of thing, and you know … If you are on FOX News when you don’t remove someone; and it is a drunk driver that kills a citizen—you know, we have ordered removal, and they are not gone and they kill someone. I don’t think you would be on FOX News for letting Miss Peters stay.
JUDGE TALLMAN: You would probably not make the news at all but you will go home and sleep better at night.
BRUCKNER: You know I can tell you a lot of these cases are very difficult.
JUDGE TALLMAN: What is difficult about this one other than the fact that the agency thinks that she didn’t file it on the right form?
BRUCKNER: Because Miss Peters did not meet the eligibility requirements. I can tell you I also handled the Alimoradi case in the District of California (Alimoradi v. USCIS) that appellant raised and in that case the government attempted, actually denied an adjustment of application for Mr. Alimoradi who was an earthquake engineer in Southern California. And the same agency counsel in both cases, you know, her position, and it’s a valid one is that we have to treat all applicants the same. It doesn’t matter if they are an earthquake engineer or —
JUDGE TALLMAN: And had he tried to file for an extension of status on an outdated form or had he somehow just missed the filing deadline?
BRUCKNER: His attorney late filed in that case.
JUDGE TALLMAN: He late filed …
JUDGE CLIFTON: This case seems like a triumph of bureaucracy over reality because just recently the government has hit upon the proposition that the problem wasn’t an outdated form. I’ve got to say, I understand that reading but, it is not how I looked at the documents. Everybody appeared to have assumed that the problem was it was an outdated document, which in fact was not outdated under the regulations. So why exactly is that application not a valid application? You told me there was something missing. She’s not eligible. Why is she not eligible? And I hope there is a reason that’s substantive other than paperwork.
BRUCKNER: The application type was changed in 2005 and the I-129 Form had to include an H-Supplement and an H1-B Supplement and the HI-B had questions which led the agency to a determination whether it was a non-profit and was exempt from a filing fee. So the fees were dependent on the H1-B Supplement, which was not included, so when the contractor received the application it was appropriately rejected because the company did not follow the filing instructions.
JUDGE TALLMAN: So this whole case turns on the failure to file a filing fee?
BRUCKNER: Actually, the petitions are returned so we do not know exactly—
JUDGE TALLMAN: What’s the filing fee?
BRUCKNER: The filing fee at the time, there was a base fee of $185. Then if the company is not a nonprofit, and that’s determined by the Supplement, there is a fee of either $750 or $1500. $750 if your company has fewer than 25 full time employees. I am assuming Impact Capital has more than that and then there is a mandatory $500 fee
JUDGE CLIFTON: So maybe the fee would have covered your travel expenses to come out here to argue this case. I have a lot of trouble understanding the logic behind why we’re here.
BRUCKNER: I understand your Honor. And then the $500, umm, the fraud prevention is mandatory. Now there are checks in the record I believe were submitted with the first petition. One for $940 and one for $500 so—
JUDGE TALLMAN: So now we are talking about a $600 difference?
BRUCKNER: Well, the $500 fee was correct but the $940— none of the possibilities add up to $940. If, it should have been $185 plus either $750 or $1500 so if they had were to have fewer than 25 employees and were supposed to pay $750 it would have been $935 and actually the agency has to—
JUDGE TALLMAN: Wow. So this really is like a nightmare of bureaucracy.
JUDGE CALLAHAN: If she won, could she ask for her attorney’s fees under EAJA (Equal Access to Justice Act)?
MALE JUDGE: Granted.
BRUCKNER: Umm, she could ask them but the government’s position is substantially justified.
JUDGE CLIFTON: And you get a sense from this panel which is not the least friendly panel you could have from this court that you’ve got a strong wind in your face. Might this be a case that is worth returning to meditation?
BRUCKNER: Your Honor I can pursue that with the client (Napolitano).
JUDGE TALLMAN: Why don’t you do that. Why don’t we hold this case in abidance for 60 days to give you a chance to take another run at it and give us a status report at the end of sixty days.
JUDGE CALLAHAN: Do they record oral argument?
JUDGE TALLMAN: Yeah.
JUDGE CALLAHAN: And so your boss could listen to oral argument and get a sense of what—that the court is asking questions about the type of questions that court is asking. And you could even tell them who is on the panel and they can even look at how often we grant petitions or as far as things go that way. I mean. I think we’ve all have expressed our individual concerns about whether or not the government’s position is substantially justified here.
JUDGE TALLMAN: So if you speak to Blanca, she will get you a copy of the DVD of the argument and you can take it back to your client and say here listen to..
JUDGE CLIFTON: It’s on our website. The whole world will be able to listen to it soon
BRUCKNER: That’s right. Thank you.
JUDGE TALLMAN: Alright … ok Ms. Peters or excuse me ah not Ms. Peters, it’s Ms. Bruckner.
JUDGE TALLMAN: All right we will take this case under eh, I think we will issue an order to take care of the paperwork but I think what we will do is vacate submission and hold it for 60 days in abeyance, get a status report from the parties. In the meantime, counsel, if you would contact the Ninth Circuit Mediation office and arrange to talk to your opposing counsel on a mutually convenient date after you talk to client that would be great.
Thank you both.