[00:00:17] Speaker 02:
May it please the court, Wehlu Shaw, for the appellants.

[00:01:12] Speaker 02:
appeal from denial of a motion for reconsideration may be appropriate where there is new intervening law and that is exactly what happened here.

[00:01:20] Speaker 02:
I've enjoyed that footnote, why was I wrong?

[00:01:25] Speaker 02:
So I think if we were to take a sort of fresh, well let me back up, first I think that the footnote

[00:01:45] Speaker 02:
Establishment Hanson and it's grounded I think in other sources for example Wright and Miller acknowledges

[00:02:11] Speaker 00:
denial of a motion for reconsideration on qualified immunity when there's been intervening law.

[00:02:59] Speaker 00:
regarding this case.

[00:03:38] Speaker 02:
that it needed to reverse its original decision.

[00:03:41] Speaker 02:
I'm sorry, that the original Hoffman decision issued prior to Egbert held that there is a Bivens remedy

[00:04:07] Speaker 02:
for failure to protect claims.

[00:04:09] Speaker 02:
And in particular, I would point to some aspects of Egbert that do represent a change in the law.

[00:04:16] Speaker 02:
In particular, I would note the court's discussion of Hartman, which was a Supreme Court decision discussing the standard for a First Amendment retaliation claim.

[00:04:29] Speaker 02:
And Egbert said that

[00:05:02] Speaker ?:
I don't think there's a real repeal at all.

[00:05:04] Speaker 02:
I think what Egbert tells us is that where a prior Supreme Court decision has merely assumed

[00:05:44] Speaker 02:
So there's no question of repeal.

[00:05:47] Speaker 02:
So based on that, I would say that the Hansen exception in footnote four applies, or at least it would if this were qualified.

[00:06:26] Speaker 02:
doctrine that issue is to avoid trial in order to protect a particular value of a high order and two of the

[00:07:18] Speaker 00:
of the doctrine of qualified immunity, correct?

[00:07:21] Speaker 00:
No, the government has not raised a qualified immunity argument in this case.

[00:07:25] Speaker 00:
So in response to Judge Bumate's question, why can't this be thoroughly vetted and decided in your favor on appeal from an adverse judgment?

[00:07:57] Speaker 02:
No, I don't think I'm saying that at all I mean we could say

[00:09:03] Speaker 04:
purpose of the doctrine is to prevent these harms.

[00:09:05] Speaker 02:
Yes.

[00:09:06] Speaker 02:
And so I'm talking, so I think the two harms are the ones specifically identified in Will as being sufficient honoring the separation of powers and protecting the efficiency of government and the initiative of government officials and to support that.

[00:09:49] Speaker 02:
my here to avoid the floodgate argument.

[00:11:09] Speaker 00:
I think that's not I would agree with that and I think ever doesn't say we're overruling

[00:11:45] Speaker 02:
district court seem to believe that that farmer establishes a new Bivens context.

[00:11:51] Speaker ?:
And after Egbert, it's simply not possible to read Farmer in that way.

[00:11:56] Speaker 02:
Farmer doesn't discuss special factors.

[00:11:59] Speaker 02:
It doesn't compare the facts to any existing prior Bivens context.

[00:12:03] Speaker 02:
So Farmer simply didn't say anything about whether there is a Bivens remedy in the failure to protect context.

[00:12:10] Speaker 02:
And Egbert makes that absolutely clear.

[00:12:12] Speaker 02:
So again,

[00:12:18] Speaker 02:
did as overruled or repealed by implication or any of that.

[00:12:21] Speaker 02:
Simply, what is the proper reading of farmer investment?

[00:12:50] Speaker 04:
when Congress develops a cause of action, that sovereign immunity is pierced.

[00:12:55] Speaker 04:
So here we made up this cause of action.

[00:12:58] Speaker 04:
So why isn't that an affront to sovereign immunity in that respect?

[00:13:03] Speaker 04:
So it makes it almost directly on point with qualified immunity.

[00:13:07] Speaker 02:
Yeah, I do agree that it is an affront.

[00:13:09] Speaker 02:
The erroneous recognition of the evidence remedy and contravention of cases like

[00:13:55] Speaker 02:
about in Egbert continue to accumulate.

[00:13:58] Speaker 02:
And so I think that it's incumbent on the judiciary to step in.

[00:14:02] Speaker 04:
So the harps you're saying is not just the fact that they're on a trial and discovery.

[00:14:06] Speaker 04:
It's the impact it might have on the operation of the executive branch otherwise.

[00:14:10] Speaker 04:
Because what the fear is, I might be erroneously dragged into court on a Bivens claim and not do my job as well as I should be, because I don't want to have to even go through that process.

[00:14:24] Speaker 02:
Right.

[00:15:55] Speaker 01:
that there is an exception.

[00:16:29] Speaker 03:
I think that the district court here saw the 6db motion, so to the timeliness question, the reason it is an untimely notice of appeal, but for this exception for a new case now.

[00:16:42] Speaker 03:
Well, I think we want a Rule 6db or Rule 59a motion to amend the judgment, because the judgment was entered two years before the motion for reconsideration was filed.

[00:16:53] Speaker 03:
Three years after the

[00:16:59] Speaker 03:
put forth, though, is that the district court ruled on Egbert.

[00:17:03] Speaker 03:
And if you noticed, the appellant started with Marquez.

[00:17:06] Speaker 03:
And Marquez would be vitiated if the Egbert argument that appellants have raised that it necessarily found Farmer to be not a good law, this court would not have needed to reach what it reached in Marquez actually making that determination in the context there.

[00:17:23] Speaker 03:
And so the defendants could have

[00:17:27] Speaker 03:
Marquez was filed and they chose not to.

[00:17:29] Speaker 03:
They chose instead to forge ahead with this appeal.

[00:17:56] Speaker 04:
it was interpreting Egbert, which happened pre this motion for reconsider, so therefore the change in law would grant them jurisdiction under the footnote four, which I disagreed with, but I lost, so.

[00:18:09] Speaker 03:
Right, so Egbert was a step two case, and it had nothing to do with the new context inquiry.

[00:18:14] Speaker 03:
Marquez reached the former.

[00:18:17] Speaker 03:
Egbert was discussing the special factors inquiry, and it included discussion of the reasoning

[00:18:34] Speaker 03:
If you look at the Marquez opinion, it maintains the two-step inquiry that Abbasi laid out and ruled first that the court... I mean, I thought we said explicitly the court contributes to a reaffirming that there are three of these cases of Bivens Keynes and Farmer is not one of them.

[00:18:54] Speaker 03:
My point, Your Honor, is that the Marquez

[00:19:07] Speaker 03:
because of the two-step inquiry, the Science Circuit still had to reach what it did, which was saying that Marquez was not good law, because at that point, there were other circuits that... Yes, I'm sorry, Your Honor, that Farmer's not good law, because there were other circuits that had decided otherwise that Farmer remained good law, even post-IPER, that was shorter in the Third Circuit.

[00:19:26] Speaker 03:
But, Your Honors, I don't think that we should...

[00:19:36] Speaker 03:
And so we could, if the court wanted, it could assume that Hanson-Footham Four applies and reach what we've briefed.

[00:19:45] Speaker 03:
And so...

[00:20:05] Speaker 03:
The Bivens question is who should decide whether there is a remedy, Congress or the courts.

[00:20:11] Speaker 03:
The separation of powers concerned, therefore, is about judicial intervention with the legislative branch.

[00:20:16] Speaker 03:
All of the discussion in all of the cases cited by the appellant regarding subjecting government officials to the burdens of litigation go to preventing unwarranted interference with federal officials in the executive branch.

[00:20:28] Speaker 03:
This is a different separation of powers

[00:20:47] Speaker 00:
against it to exist in tandem.

[00:20:50] Speaker 03:
Well, arguably they could, Your Honor, but it's not what the collateral order doctrine would then actually care about, because the separation of powers concerns that are actually in the VINs go to whether Congress would make the remedy.

[00:21:00] Speaker 03:
In the collateral order doctrine, it's really asking, should the defendants go through the burdens of litigation?

[00:21:06] Speaker 03:
And you see defendants try to compare that to the qualified immunity reasoning there.

[00:21:10] Speaker 03:
That's everything that had to do with the burden on trial.

[00:21:58] Speaker 03:
at hand is whether the appellate court can justify the appeal of the entire class of relevant orders.

[00:22:04] Speaker 03:
So first, not every element that you just listed, Judge Womate, would go to every Bivens case, because Abbasi and other cases included order of control, national security context that's not present here, which is a medical, not a medical, sorry, a failure to protect claim in a prison.

[00:22:21] Speaker 03:
And so the entire Bivens class, you're really just thinking

[00:22:38] Speaker 03:
community, the reason I'm trying to compare to qualified immunity, and it's that when the cases discuss the substantial social costs that, Egbert was one example that appellants used after discussing the substantial social costs, the court concluded, we are therefore convinced that in light of these costs, Congress is in a better position

[00:23:10] Speaker 03:
and that would go to the importance not to the Cohen framework.

[00:23:13] Speaker 03:
We see a blending of the step two and step three by the appellants.

[00:23:18] Speaker 03:
We are not arguing on step two.

[00:23:19] Speaker 03:
We are arguing solely on step three as the Sixth Circuit and Third Circuit and the Tenth Circuit just yesterday found.

[00:23:24] Speaker 03:
And so the Tenth Circuit actually grouped the cases in the non-immunity context as immunity and those that would be moot after final judgment.

[00:23:32] Speaker 03:
Those are the two contexts of collateral order doctrine.

[00:23:34] Speaker 03:
And the qualified immunity examples do not bear on this question

[00:23:52] Speaker 03:
violation, that does not apply when it comes to the Vivins liability question.

[00:23:55] Speaker 04:
But you seem to acknowledge that prison officials could be impacted by the threat of a Vivins claim here.

[00:24:02] Speaker 04:
And so why shouldn't we nip it in the bud so that we're not affecting executive branch officials?

[00:24:11] Speaker 03:
Your Honor, it's because FDIC versus Meyer, the Supreme Court case that actually reversed a grant of Vivins after final judgment, shows that that question, to Judge

[00:24:45] Speaker 04:
And so I'm not going to get even close to whatever that issue was.

[00:24:50] Speaker 03:
Again, Your Honor, qualified immunity comes into play.

[00:24:52] Speaker 03:
That's exactly why qualified immunity gets an appeal and is not present.

[00:24:56] Speaker 03:
So for an example, take the same issue, but with a state official.

[00:25:01] Speaker 03:
The state officials would not have this given liability question at all, and qualified immunity would not get out.

[00:25:20] Speaker 04:
to go through that trial.

[00:25:21] Speaker 04:
But the argument the government seems to be making is that it's not just that individual officer, it's all the other officers that are hearing about their colleague being dragged into court, and so therefore it might impact their executive function.

[00:25:37] Speaker 03:
No, Your Honor, I think that qualified immunity at Mitchell versus Forsythia

[00:25:56] Speaker 03:
could have had both your honor, the defendants did not raise.

[00:25:59] Speaker 03:
Oh, you mean why can't I vote for collateral order doctrine?

[00:26:01] Speaker 03:
Yeah, exactly.

[00:26:01] Speaker 04:
Why can't we have qualified immunity protection under collateral and why not Bivens protection under collateral?

[00:26:07] Speaker 03:
It's not either or.

[00:26:09] Speaker 03:
It's not, but because Bivens is a liability context, Will v. Halleck explicitly disavowed a Bivens motion to dismiss as receiving collateral order doctrine.

[00:26:18] Speaker 03:
That is not dicta.

[00:26:19] Speaker 03:
That was, it was, well, perhaps it's dicta, but it's dicta

[00:26:51] Speaker 01:
that your friend across the aisle made with regard to will.

[00:26:53] Speaker 01:
I understand the government's argument that there's language in will that makes it pretty difficult because it clearly says that litigation troubles some to government employees.

[00:27:05] Speaker 01:
If that were enough, then you would have interlocutory review as a matter of right every time the government loses a Bivens action or a tort claims.

[00:27:20] Speaker 01:
the final order doctrine.

[00:27:22] Speaker 02:
How I would read that dictum is that it simply restates the general proposition, which we agree with, that in general denial of a motion to dismiss is not an appealable collateral order.

[00:27:33] Speaker 01:
But obviously some denials of motions to dismiss are including, for example, qualified immunity, which... The difficulty for you with will is that they didn't just say, you know, as a matter of generality, denials of a motion to dismiss specifically referenced Bivens.

[00:27:48] Speaker 02:
I'm sorry, I don't think, right, I'm sorry, they do refer to Bivens cases, they refer to denials of motions to dismiss in Bivens cases, and I agree with that, but I think the Court is simply restating the principle that even in this category of cases, as a general matter, motions to dismiss are not collaterally appealable, but that cannot stand for a category

[00:28:24] Speaker 02:
in qualified immunity.

[00:28:25] Speaker 02:
But in that context, you have the Bivens sort of riding the coattails of an immunity situation, which gets its own treatment.

[00:28:32] Speaker 02:
All I'm trying to say is that that will stick to even if we were to treat it as precedent, which it's not, does not stand for the proposition that there is a categorical bar on collateral appeal of an order denying a motion to discuss in the Bivens place.

[00:28:46] Speaker 01:
Well, I asked a question earlier about how do you draw the line, because if the Supreme Court is

[00:28:54] Speaker 01:
you don't just get it automatically for a Bivens loss, then sort of it's Bivens plus that gets you interlocutory review.

[00:29:02] Speaker 01:
What's the line?

[00:29:03] Speaker 01:
What's the plus?

[00:29:04] Speaker 02:
I think the Supreme Court has been very clear about where to draw

[00:29:27] Speaker 02:
have to look to the purpose of the doctrine.

[00:29:29] Speaker 01:
And so why wouldn't that apply to every Bivens action?

[00:29:32] Speaker 01:
Because the separation of powers arguments that have been discussed today, rightly so, are present in every Bivens case.

[00:29:39] Speaker 02:
Right.

[00:29:39] Speaker 02:
But you have to look to the purpose of the doctrine.

[00:29:41] Speaker 02:
So for example, if there was a, I don't know, a collateral estoppel argument, for example, or a statute of limitations

[00:29:58] Speaker 02:
The case would then proceed to trial, would it not?

[00:30:02] Speaker 00:
Right.

[00:30:03] Speaker 00:
If we don't have an introductory jurisdiction, an appellate jurisdiction, over denials to dismiss on that basis.

[00:30:09] Speaker 02:
And what we'll recognize is that there are doctrines that have the effect of cutting off litigation.

[00:30:15] Speaker 02:
And litigation can have harmful consequences, but there is a difference between a doctrine that simply cuts off litigation, like the judgment bar, for the sake of cutting off litigation.

[00:30:37] Speaker 02:
and Mitchell, all of the court's decisions rely on this difference between doctrines that protect a substantial public interest or a particular value of a high order as opposed to those that simply

[00:31:22] Speaker 01:
the score she'll stand.