[00:00:06] Speaker 03:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:09] Speaker 03:
Judge Pies and I want to thank and welcome Judge Seaborg, who kind of has a busy job in the Northern District of California, so we appreciate you making the trip and helping us out.

[00:00:17] Speaker 03:
Thank you very much.

[00:00:18] Speaker 03:
We've got three matters for argument today.

[00:00:20] Speaker 03:
I always say this, like I say, no extra credit in the Ninth Circuit for using all of your time.

[00:00:27] Speaker 03:
If you've made your points and you're not getting any questions back,

[00:00:31] Speaker 03:
It's OK to sit down.

[00:00:33] Speaker 03:
And with that, we'll call the first matter, which is Schwartz versus Miller.

[00:00:48] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:51] Speaker 01:
Joshua Wesneski on behalf of the appellant, Paul Schwartz.

[00:00:54] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:56] Speaker 01:
Sure.

[00:00:57] Speaker 01:
Developments in this court's precedent since the filing of the appeal have provided a clear path to reversal in this case.

[00:01:04] Speaker 01:
Most crucially, in Watanabe v. Derr, this court held that the existence of an alternative remedial mechanism is a Bivens step two issue.

[00:01:14] Speaker 01:
And in Chambers v. Herrera, the court described the PLRA and the grievance procedures there under as an alternative remedial structure.

[00:01:22] Speaker 01:
The district court's decision applying the PLRA at Bivens step one and declaring a Bivens remedy categorically unavailable to all federal prisoners cannot be reconciled with that now binding precedent.

[00:01:35] Speaker 01:
Additionally, Watanabe and other recent cases do away with the appellee's alternative argument based on alleged differences between this case and Carlson v. Green in terms of severity or immediacy.

[00:01:47] Speaker 01:
In Watanabe, Stenard v. Dai and Hearst v. Derr, this court has recently

[00:01:52] Speaker 01:
and repeatedly confirmed that those differences go to the existence of a constitutional violation, not to the availability of a Bivens remedy.

[00:02:00] Speaker 01:
In any event, the facts here are much more akin to those in Carlson.

[00:02:05] Speaker 01:
The district court's decision was wrong, and the appellate's offense of it misguided.

[00:02:09] Speaker 01:
The judgment should be reversed.

[00:02:11] Speaker 01:
Mr. Schwartz should be given the opportunity to amend his complaint, as this court strongly indicated in its prior order.

[00:02:18] Speaker 01:
The district court's decision here was focused on the PLRA, so I'd like to start there, and I believe that Watanabe shuts the door on that argument entirely.

[00:02:27] Speaker 01:
The government there argued that the deliberate indifference claim alleged by the plaintiff arose in a different context because the plaintiff there had access to the ARP, the Administrative Review Process available to federal prisoners.

[00:02:39] Speaker 01:
This court rejected that contention unequivocally, saying that in Egbert,

[00:02:43] Speaker 01:
Supreme Court clarified that the existence of alternative remedial structures can be one special factor to be considered as the second step of the Bivens analysis, but that the Court was not required to undertake that second step because Watanabe's case was not meaningfully different from Carlson.

[00:03:01] Speaker 01:
And we brought this intervening precedent to the attention of the Court, and the appellee's response principally was that Watanabe did not address the PLRA.

[00:03:09] Speaker 01:
But the Court was clear that alternative remedial structures go to step two.

[00:03:13] Speaker 01:
And this court in chambers, when addressing the PLRA at step two, as virtually every court has done, stated that the Prison Litigation Reform Act ultimately provides the plaintiff there the remedies available to him by Congress.

[00:03:27] Speaker 01:
And in that same discussion, the court concluded.

[00:03:29] Speaker 02:
If I remember correctly, the primary points at dispute in Watanabe were the severity and nature of the action.

[00:03:43] Speaker 02:
And the alternative remedies came sort of at the end, if I remember correctly.

[00:03:48] Speaker 01:
That's accurate, Your Honor.

[00:03:49] Speaker 01:
The principal point of discussion in the briefs and at oral argument, as I'm sure you recall, was based on the severity or the immediacy.

[00:03:57] Speaker 01:
But the existence of alternative remedies was an issue raised by counsel there.

[00:04:03] Speaker 01:
They raised the issue of the administrative remedies, if I remember correctly.

[00:04:07] Speaker 01:
They did, Your Honor, but actually at oral argument, government counsel also raised the PLRA.

[00:04:12] Speaker 01:
in an exchange with Judge Mylan Smith about how the PLRA signified Congress's intent not to allow Bivens claims and that that should be considered at step one.

[00:04:22] Speaker 01:
Again, as the Court may recall,

[00:04:24] Speaker 01:
There was no dispute that if they reached step two, the claim was not going to be allowed.

[00:04:29] Speaker 01:
So the government council there raised the PLRA.

[00:04:32] Speaker 01:
There was an exchange with Judge Mylan Smith about its significance there.

[00:04:35] Speaker 01:
But notably, Judge Mylan Smith, even though he dissented in part, did not cite the PLRA or the ARP as factors at step one that should have distinguished the case from Carlson v. Green.

[00:04:48] Speaker 01:
His concern was the nature and severity.

[00:04:51] Speaker 01:
That's right, Your Honor.

[00:04:52] Speaker 01:
And I would say even as to those points, obviously, Judge Miles Smith's perspective didn't carry the day.

[00:04:58] Speaker 01:
But even if it had, I think his objections there in Watanabe would not even apply here.

[00:05:04] Speaker 01:
We actually have here, I think, comparable severity.

[00:05:07] Speaker 01:
Obviously, Mr. Schwartz didn't die, but he does suffer now from stage three kidney failure, Graves' disease, serious repeated life-threatening emergencies, thyroid storms, the kind of stuff that really

[00:05:19] Speaker 01:
Carlson v. Green is very much concerned with.

[00:05:22] Speaker 01:
And the severity of the mistreatment, we have not just a delay in treatment, which of course was also present in Carlson v. Green, but also obstruction of treatment by failing to record his visits or deleting his name from the sick call, and I think demonstrably inadequate treatment.

[00:05:41] Speaker 01:
For example, the recommendation when he was presenting with life threatening symptoms

[00:05:45] Speaker 01:
do simply drink more water

[00:06:02] Speaker 01:
When Congress was passing the PLRA, it did so against the backdrop of Bivens and Carlson and understood that the Supreme Court had provided for remedies in those circumstances.

[00:06:13] Speaker 01:
And what the Supreme Court said about the PLRA was that it could be construed as a congressional decision not to extend those existing remedies in Bivens and Davis and Carlson to other circumstances of mistreatment or constitutional violations against

[00:06:32] Speaker 01:
But the negative implication there is that Congress did not overrule the existing claims for relief that were recognized by the Supreme Court.

[00:06:41] Speaker 00:
But wasn't that consideration of that in the Ziegler case at step one as opposed to step two?

[00:06:48] Speaker 01:
I don't think it was clear, Your Honor, respectfully, at what step the Supreme Court was addressing it.

[00:06:53] Speaker 01:
And in fact, on remand, the District Court construed the Supreme Court's decision as putting the PLRA at step two and not at step one.

[00:07:02] Speaker 01:
And again, I think that's reflected in what the court actually said about what the PLRA did, which is that it counsels against further extension of Bivens.

[00:07:14] Speaker 01:
That was the context of the conversation.

[00:07:16] Speaker 01:
Of course, that's a step two question, not a step one question.

[00:07:24] Speaker 01:
Just to close the loop on Watanabe, I'll also add that Watanabe also makes clear

[00:07:30] Speaker 01:
that if the precedent of this court recognizes a Bivens claim in a given context, a specific context, then it doesn't matter if a future defendant comes up with a new argument for why there shouldn't be a Bivens claim.

[00:07:42] Speaker 01:
So the plaintiff in Watanabe, the plaintiff in Stenard, the plaintiff in Hearst, they all had access to the ARP.

[00:07:50] Speaker 01:
They were all governed by the PLRA.

[00:07:52] Speaker 01:
The fact that the defendants there didn't raise the PLRA specifically doesn't make that precedent any less binding as to the central issue of whether there is a recognized and viable Bivens claim in virtually identical circumstances or, I would argue, more increases.

[00:08:09] Speaker 01:
Let me ask you this.

[00:08:10] Speaker 02:
The mandate has not issued in Watanabe because the government asked for an extension.

[00:08:16] Speaker 02:
That's correct, Your Honor.

[00:08:17] Speaker 02:
To consider whether or not it wanted to file a petition for rehearing, rehearing on bond.

[00:08:22] Speaker 02:
You think we should just wait to see what happens with Watanabe?

[00:08:26] Speaker 01:
I don't, Your Honor, for the reason I mentioned a moment ago, which is that even if you take Judge Mylan Smith's view of the law from his partial dissent, he didn't suggest or argue that the ARP or the PLRA were special factors at step one that should result in the dismissal of the claim.

[00:08:46] Speaker 01:
And even the points that he did find distinction on, I don't think are even present here.

[00:08:50] Speaker 01:
We don't have the same

[00:08:51] Speaker 01:
issue with the severity of the injury or the severity of the remedy.

[00:08:56] Speaker 01:
So the only way that Watanabe would affect this case is if the Ninth Circuit went further, even then what Judge Mylon Smith suggested in his partial dissent, they should go.

[00:09:07] Speaker 01:
Now, of course, there's always a possibility that the full Ombach Ninth Circuit is going to overturn its existing precedent.

[00:09:14] Speaker 01:
And there are always parties in front of the Ombach Ninth Circuit asking it to do just that.

[00:09:19] Speaker 01:
But I don't think we ought to hold this case out

[00:09:21] Speaker 01:
based on the possibility that the Ombach court may deviate from its existing precedent, not just Watanabe, I would add, but also Stenard, I think.

[00:09:30] Speaker 01:
They deviate from both of those cases and go and issue a ruling that actually would reach the facts of this case, which again, we think are much closer to Carlson v. Green than even Stenard or Watanabe.

[00:09:42] Speaker 01:
As the court may recall, Watanabe was about a broken coccyx.

[00:09:46] Speaker 01:
Stenard was about hepatitis C, which eventually was cured and resolved entirely.

[00:09:51] Speaker 01:
Mr. Schwartz's injuries are about, as I said, stage three kidney failure, chronic, life-threatening, lifelong conditions that he is still struggling with today and is still facing the effects of today.

[00:10:04] Speaker 02:
Let me ask you this.

[00:10:05] Speaker 02:
Has any other circuit adopted the government's position in this case?

[00:10:11] Speaker 01:
There is a recent 11th Circuit decision.

[00:10:15] Speaker 01:
Terry V. Johnson, I believe, is the citation.

[00:10:18] Speaker 01:
And it did treat the ARP as a step one consideration in a case where the plaintiff there had alleged a medical deliberate indifference claim.

[00:10:29] Speaker 01:
That came out, I think, in the last month or so.

[00:10:33] Speaker 01:
I don't know whether there's going to be a petition for rehearing there, a petition for certiorari.

[00:10:38] Speaker 01:
So there is a possibility that a circuit split emerges on this.

[00:10:41] Speaker 01:
But as the law stands in the Ninth Circuit now, today, the rule in this court is that the ARP and the PLRA

[00:10:49] Speaker 01:
our step two consideration.

[00:10:50] Speaker 02:
In this, I haven't read this Terry v. Johnson case, but so I gather what you're telling us is that in Terry, the 11th Circuit, the panel, the panel said that step one, the PLRA was a factor.

[00:11:08] Speaker 01:
It was just the administrative review procedure.

[00:11:11] Speaker 01:
I don't think it actually talked about the PLRA specifically.

[00:11:15] Speaker 01:
The case there, I'm sorry, I got it backwards.

[00:11:16] Speaker 01:
It's Johnson v. Terry, Terry v. Johnson.

[00:11:19] Speaker 01:
But yes, the ARP was something, and it used the same sort of rationale here that the district court did here, although I'll add it actually I think went a little bit further than the district court here because what the court there said was, not only did Carlson v. Green not consider the ARP, but Carlson v. Green was decided under the old framework of how the Supreme Court evaluated Bivens' claims and not the new sort of modern understanding

[00:11:47] Speaker 01:
the idea that Congress may provide an alternative that is not as adequate, but that is still foreclosing a new Bivens claim.

[00:11:55] Speaker 01:
So my read of the case is that the Eleventh Circuit is actually saying that Carlson v. Green can't be relied on at all for any purposes because it was decided under the wrong rubric, which I do think, consistent with our arguments here, is beyond the power of the lower courts to decide.

[00:12:12] Speaker 01:
So I think even in that respect, not only do I think it

[00:12:15] Speaker 01:
misinterprets existing Supreme Court precedent.

[00:12:18] Speaker 01:
I think it also goes further than lower courts are permitted to go with respect to Supreme Court precedent.

[00:12:24] Speaker 01:
But, you know, we will see if there's a petition for rehearing there.

[00:12:28] Speaker 01:
That was decided just about a month ago, so it should be coming up soon.

[00:12:32] Speaker 01:
There may be, again, a petition for certiorari.

[00:12:35] Speaker 03:
Okay, thank you.

[00:12:36] Speaker 03:
Do you want to reserve?

[00:12:38] Speaker 01:
Yes, Your Honor, thank you.

[00:13:00] Speaker 04:
Good morning and may it please the court.

[00:13:02] Speaker 04:
Sarah Margolis on behalf of Ms.

[00:13:04] Speaker 04:
Tataad.

[00:13:06] Speaker 04:
Under Egbert and Ziegler, this case presents a new context that is it's meaningfully distinct from the Supreme Court's trilogy of Vivian's cases in multiple ways.

[00:13:15] Speaker 04:
The PLRA renders this case a new context for two reasons.

[00:13:19] Speaker 04:
First, even apart from the issue of alternative remedies, the PLRA tells us Congress's view of appropriate remedies in prisoner suits.

[00:13:28] Speaker 04:
Second, as this court and the Supreme Court have both already held, alternative remedial structures can render a context new at step one of Egbert's test.

[00:13:38] Speaker 04:
That is, alternative remedial structures can make a meaningful difference and create a new context.

[00:13:45] Speaker 04:
The PLRA is one such alternative remedial structure.

[00:13:49] Speaker 04:
Turning to the first point.

[00:13:50] Speaker 00:
Doesn't the PLRA contemplate Bivens' actions in this context going forward?

[00:13:57] Speaker 04:
No, Your Honor, it doesn't.

[00:13:58] Speaker 04:
The PLRA made clear that it was intending to curtail prisoner litigation, and there's other types of prisoner litigation that it was intending to speak to, Section 1983 claims, for example, FTCA claims, for example.

[00:14:13] Speaker 04:
It does absolutely nothing to ratify Bivens or suggest that Congress wanted a Bivens remedy going forward.

[00:14:19] Speaker 02:
The PLRA, it does limit prisoner litigation.

[00:14:25] Speaker 02:
They have to go through the administrative process.

[00:14:29] Speaker 02:
They have a screening, the district courts have a screening function they have to undertake, which is tantamount to a 12, you know, 12b6.

[00:14:37] Speaker 02:
Do they state a claim?

[00:14:41] Speaker 02:
So the PRLA does provide that limitation on, on, on claims, but it doesn't, you know, if you look at the PRLA, it doesn't, it doesn't eliminate a substate.

[00:14:51] Speaker 02:
It doesn't say, you know, we're, we're getting rid of,

[00:14:57] Speaker 02:
There's no damages for certain kinds of claims.

[00:15:00] Speaker 02:
It doesn't say that at all.

[00:15:01] Speaker 02:
It just presides, it presents these procedural steps.

[00:15:05] Speaker 04:
You're correct, Your Honor.

[00:15:06] Speaker 04:
The PLRA doesn't say we're doing away with Bivens claims, but it doesn't say anything at all about Bivens claims.

[00:15:13] Speaker 04:
It doesn't ratify them.

[00:15:14] Speaker 02:
What did the court, what was the court saying in Ziegler?

[00:15:18] Speaker 04:
So this is an excellent question and I do want to make this very clear.

[00:15:23] Speaker 04:
In Ziegler, the court considered the PLRA in two places.

[00:15:27] Speaker 04:
The principal one that I want to discuss here is with respect to the prisoner abuse claims against MDC's warden, Mr. Hasty.

[00:15:35] Speaker 04:
There, the court found that at step one, those prisoner abuse claims could not proceed.

[00:15:41] Speaker 04:
The court here is only doing a step one analysis.

[00:15:44] Speaker 04:
It's not doing a step two analysis.

[00:15:46] Speaker 04:
So it's only considering when it discusses the PLRA, makes clear that it's at step one.

[00:15:51] Speaker 04:
And it says,

[00:15:53] Speaker 04:
This case has certain features that were not considered in the court's prior Bivens cases.

[00:15:58] Speaker 04:
The existence of an alternative remedy precludes a court from authorizing a Bivens remedy.

[00:16:03] Speaker 04:
Further, legislative action like the PLRA suggesting Congress does not want to damage this remedy is itself a special factor counseling hesitation.

[00:16:13] Speaker 04:
Fifteen years after Carlson was decided, the Congress passed the PLRA which made comprehensive changes to the way prisoner abuse claims must be brought

[00:16:22] Speaker 04:
So it seems clear that Congress had occasion to consider the proper way to remedy prisoner mistreatment, and it declined to extend a damages remedy against federal correction officers.

[00:16:33] Speaker 04:
That is what Ziegler says.

[00:16:34] Speaker 02:
Do you think the court was just simply acknowledging that Carlson just dealt with the medical indifference case?

[00:16:42] Speaker 02:
Wasn't dealing with abuse.

[00:16:45] Speaker 04:
So to the extent that I understand your question correctly,

[00:16:48] Speaker 04:
In this passage, the court was not dealing with an Eighth Amendment delivered indifference claim.

[00:16:53] Speaker 04:
But the question it was asking is whether something meaningful has changed since Carlson.

[00:16:58] Speaker 04:
It found that the PLRA was something meaningful that had changed since Carlson.

[00:17:03] Speaker 04:
That something meaningful rendered the context new there.

[00:17:05] Speaker 04:
That same something meaningful is present here.

[00:17:09] Speaker 04:
It has to render the context new here as well.

[00:17:13] Speaker 02:
That's quite a step.

[00:17:14] Speaker 02:
So in your view, the PLRA wipes out all medical

[00:17:20] Speaker 02:
in different, deliberate indifference cases.

[00:17:22] Speaker 02:
They're gone.

[00:17:24] Speaker 02:
That's correct.

[00:17:24] Speaker 02:
And the district court, the district court said, you know, the district court was troubled with that and said, you know, this is, this is, this is not, you know, he was concerned about that.

[00:17:34] Speaker 02:
And he said, there needs to be some clarity on this.

[00:17:37] Speaker 02:
He was troubled by that.

[00:17:40] Speaker 04:
Sometimes over time, precedents lose some or all of their scope.

[00:17:43] Speaker 04:
Don't you think we had to wait to see what the Supreme Court says?

[00:17:46] Speaker 02:
They haven't, they haven't said this clearly.

[00:17:48] Speaker 04:
I think the Supreme Court has given enough guidance that compels us to go here.

[00:17:53] Speaker 04:
The Supreme Court has clearly said the PLRA is a consideration at step one.

[00:17:58] Speaker 04:
It rendered the context new there.

[00:18:00] Speaker 04:
The court at Egbert has said the question is whether Congress or the judiciary is better positioned to provide a remedy.

[00:18:07] Speaker 04:
Here, Congress considered whether to provide this remedy in the PLRA, and they decided not to.

[00:18:13] Speaker 04:
And I think that makes it very clear.

[00:18:15] Speaker 02:
So we would effectively be overruling Carlson.

[00:18:18] Speaker 04:
We would not be overruling Carlson, Your Honor.

[00:18:21] Speaker 04:
Carlson, the Supreme Court, has made clear that it remains good law.

[00:18:24] Speaker 04:
It still stands.

[00:18:25] Speaker 04:
But what has happened is that, and it's happened sometimes in other contexts too, precedents lose their force over time because intervening events occur.

[00:18:37] Speaker 04:
Another example of this is the Supreme Court's case in Davis.

[00:18:42] Speaker 04:
Davis, the second Bivens case, is still good law, but it really doesn't have any scope anymore because Congress has since passed the Congressional Accountability Act of 1995, which deals with discrimination by members of Congress against its employees.

[00:18:56] Speaker 04:
And there, district courts have now recognized that that means Davis has no scope anymore.

[00:19:02] Speaker 04:
Intervening events come along and can reduce the scope

[00:19:06] Speaker 04:
or the practical import of prior precedents, that's exactly what has happened.

[00:19:09] Speaker 00:
Don't you think if we were to credit your notion that Congress and the PLRA has made such a sweeping change to wipe out medical indifference claims under Bivens, don't you think we should look for a more explicit indication of that?

[00:19:27] Speaker 00:
The PLRA does not do that.

[00:19:30] Speaker 00:
It doesn't say that.

[00:19:31] Speaker 00:
So why do you interpret the PLRA as being this intervening

[00:19:36] Speaker 00:
congressional action that has this effect?

[00:19:42] Speaker 04:
I think the Supreme Court has already told us that.

[00:19:45] Speaker 04:
So again, going back to the prisoner mistreatment claims against Ward and Hasty, the Supreme Court said there, Congress's silence in passing the PLRA and not extending a damages remedy against federal correction officers speaks volumes.

[00:20:00] Speaker 04:
It's telling.

[00:20:01] Speaker 04:
This isn't just a case where

[00:20:03] Speaker 00:
Is there any legislative history that you could point to on this?

[00:20:06] Speaker 04:
So there is very little legislative history that suggests that Congress was thinking about Bivens when it passed the PLRA, but what the legislative history shows is that Congress was trying to curtail prison litigation.

[00:20:19] Speaker 04:
It was trying to get the district courts out of the operation of federal prisons.

[00:20:24] Speaker 02:
It did that by this procedural mechanisms.

[00:20:27] Speaker 04:
I'm sorry?

[00:20:27] Speaker 02:
It did that by the procedural mechanisms that we discussed just a moment ago.

[00:20:33] Speaker 04:
But that certainly doesn't suggest that Congress wanted there to be a damages remedy against federal officers.

[00:20:38] Speaker 02:
No, but they certainly knew about Bivens, a medical indifference claim.

[00:20:42] Speaker 02:
They knew about Carlson.

[00:20:44] Speaker 04:
But they certainly didn't ratify it, right?

[00:20:46] Speaker 04:
They didn't say we're ratifying it at all.

[00:20:49] Speaker 02:
No, they didn't say we're wiping it out either.

[00:20:52] Speaker 04:
They didn't say we're wiping it out.

[00:20:53] Speaker 02:
They didn't say anything.

[00:20:54] Speaker 04:
They didn't say anything, Your Honor, but what they did was they put

[00:20:58] Speaker 04:
what prisoners can do in a smaller box.

[00:21:01] Speaker 04:
And so if anything, that goes to show that they wanted fewer remedies.

[00:21:05] Speaker 04:
And that is a meaningful difference that the Supreme Court did not get to consider in Carlson.

[00:21:11] Speaker 04:
And Ziegler and Egbert, regardless of whether we think what the PLRA said exactly about ratification or not ratification, the question is whether it is a meaningful difference from Carlson that gives us a single reason to hesitate before extending a Bivens remedy in this context.

[00:21:26] Speaker 04:
It clearly, plainly does.

[00:21:28] Speaker 04:
I want to just move to the second argument, which is a little bit different than was discussed before.

[00:21:37] Speaker 04:
So this case presents a new context for yet another reason.

[00:21:41] Speaker 04:
The inmate here had non-damages judicial remedies available to him.

[00:21:45] Speaker 04:
This is not about the severity of the mistreatment.

[00:21:48] Speaker 04:
It's not about the nature of the mistreatment.

[00:21:50] Speaker 04:
It's about the fact that it was not damages or nothing for Mr. Schwartz.

[00:21:55] Speaker 04:
In other words,

[00:21:56] Speaker 04:
Again, wholly apart from the severity of the mistreatment, the fact that the inmate had time to and could seek perspective relief in court renders this context new.

[00:22:07] Speaker 04:
In both Bivens and Davis.

[00:22:08] Speaker 02:
You mean like an injunction?

[00:22:10] Speaker 04:
Correct, exactly.

[00:22:11] Speaker 04:
So in both Bivens and Davis, the Supreme Court remarked that for the plaintiffs in Bivens and Davis, it was damages under Bivens or nothing.

[00:22:20] Speaker 04:
In Ziegler, the court reiterated, it is of central importance too

[00:22:26] Speaker 04:
that this is not a case like Bivens or Davis in which its damages are nothing.

[00:22:30] Speaker 04:
In Ziegler, specifically, the availability of prospective judicial relief, like an injunction, Your Honor, created a new context.

[00:22:38] Speaker 04:
It precluded a Bivens remedy.

[00:22:40] Speaker 04:
Also in Molesko, the Supreme Court remarked on the importance of this particular factor, saying responded in Molesko is not a plaintiff in search of a remedy, as in Bivens and Davis.

[00:22:51] Speaker 04:
None of these courts' prior cases have considered whether the availability of prospective judicial relief creates a new context.

[00:22:58] Speaker 04:
In both Watanabe and Sennard, the court considered whether the severity of an inmate's injury was a meaningful difference.

[00:23:06] Speaker 04:
There are innumerable ways that the availability of prospective judicial relief might shift the cost-benefit balance.

[00:23:12] Speaker 02:
So in Watanabe, he had tried to seek an injunction.

[00:23:15] Speaker 04:
You're correct, Your Honor.

[00:23:17] Speaker 02:
And he didn't know really what he was doing to get an injunction.

[00:23:22] Speaker 02:
But the government didn't, if I remember correctly, the government didn't argue that that created a new context.

[00:23:29] Speaker 02:
I didn't hear that.

[00:23:30] Speaker 02:
I don't recall that argument.

[00:23:32] Speaker 02:
Maybe it was there and it just didn't register with me.

[00:23:36] Speaker 04:
That's correct, Your Honor.

[00:23:37] Speaker 04:
In that case, the government did not argue that the damages are nothing.

[00:23:41] Speaker 04:
nature of the case, the fact that he could get an injunction, presented a new context.

[00:23:46] Speaker 04:
This is a new argument that we are making here.

[00:23:49] Speaker 04:
And the fact that Watanabe did ask for an injunction doesn't mean that you decided in that case that the availability of an injunction did not render the case a new context.

[00:24:01] Speaker 04:
You didn't consider it there.

[00:24:02] Speaker 04:
You didn't decide it there.

[00:24:04] Speaker 04:
So we are bringing this argument for the first time here.

[00:24:07] Speaker 04:
And the reason why I think this argument is so important is that

[00:24:10] Speaker 04:
The Supreme Court remarked in Ziegler that the availability of alternative judicial remedies is important to consider because those might be less intrusive on the other branches.

[00:24:22] Speaker 04:
Those might be faster.

[00:24:23] Speaker 04:
In this case, Mr. Schwartz actually, after he left FCI Tucson, did seek an injunction.

[00:24:31] Speaker 04:
One month later, he withdrew the motion for an injunction because he said that he had been taken to the hospital and it had been resolved.

[00:24:38] Speaker 04:
That would have been.

[00:24:39] Speaker 04:
something available for him to do.

[00:24:41] Speaker 04:
And the question is whether his ability to seek an injunction, unlike the inmate in Carlson who died right away, he clearly could not have come to court and said, please treat me differently.

[00:24:51] Speaker 04:
But Mr. Schwartz could.

[00:24:53] Speaker 04:
Is that a meaningful difference?

[00:24:55] Speaker 04:
Would that alter the cost-benefit analysis of creating a remedy here?

[00:25:00] Speaker 04:
Could a rational legislator think that that alters the cost-benefit analysis?

[00:25:06] Speaker 04:
The answer is yes.

[00:25:07] Speaker 04:
And so that also creates a new context.

[00:25:13] Speaker 04:
If there's nothing further.

[00:25:16] Speaker 03:
Thank you, Council.

[00:25:17] Speaker 04:
Thank you, Your Honors.

[00:25:33] Speaker 01:
Brief rebuttal.

[00:25:35] Speaker 01:
I wanted to complete the quote in Ziegler that my colleague was reading out to the court.

[00:25:40] Speaker 01:
That paragraph ends with, the act itself does not provide for a standalone damages remedy against federal jailers.

[00:25:47] Speaker 01:
It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.

[00:25:59] Speaker 01:
This is not a case involving other types of prisoner mistreatment.

[00:26:03] Speaker 01:
The other point I will make just briefly with respect to the second argument that was raised, of course, we've made the point in our papers that coming up with a new argument that the other plaintiffs, the other defendants didn't think of isn't enough.

[00:26:15] Speaker 01:
But even in Watanabe, the court addressed that failure to respond to an incarcerated individual's serious medical need, even if that need is not technically life threatening, can constitute deliberate indifference in violation of the Eighth Amendment.

[00:26:30] Speaker 01:
So while this precise argument was not raised there,

[00:26:33] Speaker 01:
I think the principal was rejected.

[00:26:35] Speaker 01:
And I would close just by saying that, in fact, for Mr. Schwartz, it is damages or nothing.

[00:26:40] Speaker 01:
Not only did he have a chronic condition that was not treated over time, but he also suffered from immediate, emergent, life-threatening thyroid storms, which are detailed in his complaint, that were not treated in that moment.

[00:26:54] Speaker 01:
Doesn't matter if he died from them or not.

[00:26:57] Speaker 01:
They were serious.

[00:26:58] Speaker 01:
They caused serious medical injury, and he was not treated at the time.

[00:27:02] Speaker 01:
along with all the other forms of deliberate indifference that he incurred.

[00:27:06] Speaker 01:
So respectfully, we would ask that this court reverse and allow Mr. Schwartz to proceed to trial.

[00:27:11] Speaker 00:
Could you just comment on the leave to amend issue just very briefly?

[00:27:15] Speaker 01:
Yes, Your Honor.

[00:27:16] Speaker 01:
I think what I'll say about that just briefly is that we have no objection to, once Mr. Schwartz is given an opportunity to amend, if those defendants are served, they can raise any statute of limitation argument that they want to raise.

[00:27:29] Speaker 01:
about how they didn't have notice.

[00:27:30] Speaker 01:
I think it's going to be hard for them to make those arguments.

[00:27:33] Speaker 01:
But as we stand here, this court, I think, was very clear that if Mr. Schwartz filed a motion for leave to amend and included in that amendment the facts that were developed in discovery, which he did, that he should be permitted to file that amended complaint.

[00:27:48] Speaker 01:
And then those defendants can file whatever motions, 12B6, 12C, Rule 56 motions that they would like to file, and the court will have to decide those on their own merits.

[00:28:00] Speaker 03:
All right, thank you to both counsel for the fine advocacy in this case.

[00:28:04] Speaker 03:
We really appreciate stepping up pro bono and flying all this way to do it and flying from New York as well.

[00:28:10] Speaker 03:
Also, Ms.

[00:28:11] Speaker 03:
Margolis, the very first case I ever had was with Judge Bresetti when he was a lawyer.

[00:28:17] Speaker 03:
So, anyway, this matter is submitted.

[00:28:19] Speaker 03:
We'll move on to the next one.