[00:00:00] Speaker 04: Good morning. [00:00:03] Speaker 04: Matthew Freitas along with Rosie Dawn Griffin on behalf of Asian Health Services. [00:00:10] Speaker 04: Your Honor, this case is, may I reserve three minutes for rebuttal? [00:00:14] Speaker 01: Yes, I'll try to help you out, but keep your eye on the clock as well. [00:00:17] Speaker 04: Yes, Your Honor. [00:00:20] Speaker 04: This case is clearly controlled by a recent decision of this court, Plumberger versus Tilley at the end of 2024. [00:00:30] Speaker 04: That case clearly decided the who decides question about whether a deemed health center or employee has immunity under the Public Health Service Act, the federal judiciary or the Department of Justice Attorney General, and came down and said, if one thing is clear about this statutory scheme under the Public Health Service Act as amended by the federally supported Health Centers Assistance Act, [00:00:59] Speaker 04: is that the attorney general does not make unreviewable coverage decisions. [00:01:06] Speaker 04: The panel, in that case, did outstanding work unpacking that statute. [00:01:12] Speaker 04: And I think one of the words that's used very frequently is different. [00:01:17] Speaker 04: There are two different determinations at play in the statutory scheme. [00:01:23] Speaker 04: The secretary's advance, meaning before the events occur, even before the year, [00:01:29] Speaker 04: in which a claim could arise is the secretary's decision. [00:01:33] Speaker 04: The other decision is the attorney general's litigation-specific coverage decision. [00:01:40] Speaker 04: And then the court said there is no additional determination that has a bearing on removal jurisdiction. [00:01:48] Speaker 04: The government can make its coverage decision if it wants to or is able to within this [00:01:53] Speaker 04: Statutory period of time, but whether it does or doesn't and this is almost a quote I think from the decision is of no legal consequence With respect to removal jurisdiction, so the only issue that's before this court today removal jurisdiction Clearly controlled by Blumberger versus Tilly the no additional determination is also I believe it's at 1133 or 1131 of the Blumberger decision, but it basically says and rejects that [00:02:22] Speaker 04: The position the government is advancing here, citing a district court decision out of the northern district for this additional determination that is tucked somewhere in the Blumberger decision or maybe overlooked by the Blumberger court. [00:02:35] Speaker 04: I don't think it was the Blumberger court. [00:02:39] Speaker 04: rejected expressly the Third Circuit's rejection of removal jurisdiction in a data breach case. [00:02:47] Speaker 04: The first page of that Doe v. Centerville decision out of the Third Circuit made it crystal clear what the conduct was in that case. [00:02:56] Speaker 04: The conduct was allegedly sharing information gleaned from a patient portal on a website and sharing it with Facebook as an unauthorized disclosure resulting in a data breach case. [00:03:09] Speaker 04: this court in Bloomberg said rejected that decision that that precluded removal jurisdiction to determine the immunity issue. [00:03:19] Speaker 04: Now I think it's important. [00:03:20] Speaker 03: Let me ask this because the district court wasn't addressing whether a data breach might fall within a category of you know I guess what does the statute say with respect to the performance of medical surgical dental or related functions. [00:03:34] Speaker 03: that it you know Bloomberg it would apply to us if on remand with the district court have to take up that threshold question first and then decide what to do with with the case thereafter or what do you propose on remand the district court should take up the question of whether or [00:03:54] Speaker 04: the related functions language of the immunized conduct in the statute covers the conduct that resulted in this case. [00:04:04] Speaker 04: And on that note, I'd say it's important to really look at the conduct and not the sort of a parlor trick aspect of plaintiffs and the government's argument, which is the conduct is this criminal's conduct. [00:04:16] Speaker 04: There's no criminal defendant in this case. [00:04:18] Speaker 04: There's no criminal actor who's a defendant in this case. [00:04:21] Speaker 04: The only defendant in this case is the deemed health center and its employee who is a clinician trying to share medical information with another clinician in the course of treating patients who have nutrition and diabetic kind of issues, which is very much in the course and scope of treatment of care, is what resulted in this case. [00:04:40] Speaker 04: That clinician did something wrong, allegedly. [00:04:44] Speaker 03: But you're not asking us to determine for ourselves whether data privacy would fit within this category. [00:04:51] Speaker 04: For this panel's decision? [00:04:53] Speaker 04: No. [00:04:53] Speaker 04: This panel's decision I think is very straightforward. [00:04:56] Speaker 04: Blumberger said the courts decide and the government and the plaintiffs are trying to leapfrog over [00:05:02] Speaker 04: district court's role in that maybe it gets up to this court later on the on the issue down the road and I think They would very much like you to get there right now in light of the FRAP 28j letter that came out I think that just illustrates the point that at the outset of this argument the who decides courts decide there are courts that have come down on different on both sides of the question of whether related functions of [00:05:27] Speaker 04: covers the conduct that gives rise to data breach. [00:05:30] Speaker 05: There's a dispute. [00:05:32] Speaker 05: Your argument that isn't really in front of us, right? [00:05:36] Speaker 05: Correct, Your Honor, it's not. [00:05:37] Speaker 05: We're really talking about, it seemed here, and I'm trying to understand your argument to this point, it seems to me that this particular case was removed [00:05:54] Speaker 05: The defendant removed it under Blumberger's third way to get it removed. [00:06:02] Speaker 05: In other words, they have a way to get it removed. [00:06:05] Speaker 05: The DOJ appears in the state court, advises the court that he was deemed to be an employee with respect to the actions or omissions that are subject to the proceeding. [00:06:19] Speaker 05: And then upon making that certification, the DOJ must remove. [00:06:24] Speaker 05: The second way is that the DOJ fails to appear in the state court within 15 days of being notified. [00:06:32] Speaker 05: Then the defendant can come himself under Bloomberg. [00:06:37] Speaker 05: Then the third way is that the defendant can come [00:06:41] Speaker 05: remove the case if the DOJ was required to inform the court under 233L1 of the defendant's deemed status, such that the government was obligated to remove the case. [00:06:58] Speaker 05: And so it seems to me that under those three different ways to remove under Bloomberg, this case was removed under the third way. [00:07:09] Speaker 05: because I can't find that either other way were here. [00:07:14] Speaker 05: So to me, the defendant had to remove if the government was obligated to remove the case and if the DIJ was required to inform the court under 233L1, [00:07:32] Speaker 05: then they removed the case. [00:07:35] Speaker 05: So it seems to me that 233L1 is the place where you find the power for the defendant to remove this case here. [00:07:47] Speaker 05: Now tell me where I'm wrong, because that's the way I read Bloomberger. [00:07:52] Speaker 04: I think Bloomberger [00:07:55] Speaker 04: It was considering a removal under 233L2. [00:07:58] Speaker 04: That, I believe, is the provision. [00:07:59] Speaker 05: Well, I don't think we're in 233L2 here because the government didn't fail to do anything. [00:08:07] Speaker 05: The government was required to inform them, and the government was obligated to do something, but the defendant can remove anyway. [00:08:17] Speaker 05: Because the government did something, they didn't do enough. [00:08:20] Speaker 05: Well, I think what Blumberger... I mean, that's what I think Blumberger says, but that's why I wanted to have your response to it, because it seems to me that that says the defendant has to do something. [00:08:33] Speaker 04: Right, Your Honor. [00:08:33] Speaker 04: I think, well, in Blumberger, the defendant did do something, removed the case under 233L2 and 1442. [00:08:40] Speaker 04: The Blumberger decision said the obligation to have removed this case rested on the Attorney General because [00:08:49] Speaker 04: the defendant was deemed for the period in which the events occurred. [00:08:55] Speaker 04: That's undisputed. [00:08:56] Speaker 04: And the government's representation to the court was described as misleading and inaccurate by the Ninth Circuit. [00:09:04] Speaker 04: Not intentionally at the time, but in retrospect, an inaccurate and misleading representation. [00:09:10] Speaker 04: The appearances in this case are substantively identical to the government's appearances in the Bloomberg litigation. [00:09:17] Speaker 04: In this case, the government came in and said, [00:09:20] Speaker 05: HHS has not yet told us what it's and then it's unclear what decision they're referring to but they said They didn't only say they haven't yet told us they said HHS is a deemed employee of [00:09:38] Speaker 05: But we don't know whether we're going to cover this or not. [00:09:42] Speaker 05: It's the normal coverage issue kind of question, which I faced in my practice every day. [00:09:48] Speaker 05: I mean, the insurance companies come in and they say, well, yeah, you have an insurance policy and that insurance policy would be applicable to you. [00:09:59] Speaker 05: But we're not sure we're going to cover you because we're not sure the actions that you took therein would be covered by that insurance. [00:10:07] Speaker 05: And that's what the government did to hear. [00:10:09] Speaker 05: They said HHS, or excuse me, AHS is a deemed employee based on what they said. [00:10:16] Speaker 05: At present, HHS has been deemed to be an employee of the PHS. [00:10:25] Speaker 05: But we don't know exactly whether we're going to cover you or not. [00:10:29] Speaker 04: Right, Your Honor, and that under Bloomberg, that's a coverage assessment. [00:10:34] Speaker 05: I understand that, but that isn't a deemed assessment. [00:10:37] Speaker 05: They're deemed. [00:10:38] Speaker 05: Correct. [00:10:39] Speaker 05: And that's why at that point, having received that, I don't understand why the defendant shouldn't remove then, because they haven't done all they needed to do. [00:10:52] Speaker 05: They could remove. [00:10:54] Speaker 05: Well, they did remove, Your Honor. [00:10:55] Speaker 05: Well, I understand whether they removed timely or not. [00:10:58] Speaker 04: That's the question. [00:10:59] Speaker 04: Well, there's no time limit on an L2 removal. [00:11:02] Speaker 05: But there is a time limit on an L1. [00:11:05] Speaker 04: No, there's not, Your Honor. [00:11:07] Speaker 04: Well, there's a time limit on the government's having to act. [00:11:11] Speaker 04: And if they don't, that gives rise to the right to remove. [00:11:14] Speaker 04: But if the government came in and removed under 233L1 or 233C, at any point, it's removable. [00:11:21] Speaker 04: The government has the option. [00:11:24] Speaker 05: Okay, under 1446 B, there's a 30 day deadline. [00:11:30] Speaker 05: How does that focus into what you're telling me? [00:11:34] Speaker 04: So that that deadline applies only to the 1442 removal. [00:11:39] Speaker 01: Well, that's untimely. [00:11:41] Speaker 01: This one was removed outside the 30 day. [00:11:43] Speaker 01: But can I get back to 233 for a moment? [00:11:46] Speaker 01: Because I thought I sort of understood where the argument was going. [00:11:50] Speaker 01: And then I want to make sure that I didn't get confused by your responses to Judge Smith's questions there. [00:11:58] Speaker 01: Is your argument that the government deemed [00:12:03] Speaker 01: deemed that the entities covered under 233, but failed to, within that 15-day window, advise the court that it was covered, and so therefore, removal was proper, because that basically gives, under Bloombergers' decision, gives AHS the authority to remove at that point. [00:12:26] Speaker 01: Is that the gist of it? [00:12:28] Speaker 05: That's what I... She's asked the question. [00:12:34] Speaker 01: I thought that was where you were going, but in response to those missed questions, it veered in a different direction. [00:12:39] Speaker 01: I'm not sure what that direction really is. [00:12:41] Speaker 01: So can you briefly give me your argument again? [00:12:44] Speaker 04: Yes, Your Honor. [00:12:47] Speaker 04: My argument is that the government's appearance here did not satisfy its obligation under 233L1. [00:12:56] Speaker 04: It was obligated to... Because they didn't say whether it was covered. [00:13:01] Speaker 04: No, no, your honor. [00:13:02] Speaker 01: Oh, okay. [00:13:02] Speaker 01: Why? [00:13:03] Speaker 04: There are two determinations. [00:13:06] Speaker 04: Their obligation under 233L1 is to come in and report the ex ante [00:13:12] Speaker 04: deeming decision of the secretary, which is, do you have an occurrence-based policy? [00:13:17] Speaker 04: That's all that is. [00:13:17] Speaker 04: Do you have a policy for the period in which the events occurred? [00:13:21] Speaker 04: And then you get into federal court for the dispute as to whether it's covered. [00:13:24] Speaker 04: That's the whole point about who decides. [00:13:26] Speaker 04: Do you have a policy that covers the events that gave rise to the case? [00:13:31] Speaker 04: If so, the court decides, not the United States government, because they have an obvious self-interest in the outcome. [00:13:38] Speaker 04: It was untenable. [00:13:39] Speaker 04: And that's what Bloombergers said, if there's one thing's clear, the attorney general doesn't get to decide if the government is substituted in as the defendant. [00:13:46] Speaker 04: So my point is, and Bloomberger didn't, all the parties asked the district court to stay the case and to wait for Bloomberger. [00:13:54] Speaker 04: So at the time, [00:13:55] Speaker 04: 233 L1 had not been clarified 233 L2 had not been clear. [00:14:00] Speaker 01: I think I get it I think that because you wanted to save time I think you want to rely on Bloomberg I think your reading of it is a little different than my reading of it I'm not sure it makes any difference in the end, but I want to make sure that you have the opportunity to save your time It's running down to less than a minute, but I'll put two minutes on the clock All right, there's some time sharing here so I understand that [00:14:24] Speaker 01: DOJ is going to take seven and a half minutes and Mr. Poehler seven and a half minutes. [00:14:31] Speaker 01: Is that right? [00:14:32] Speaker 00: Good morning, Your Honors. [00:14:33] Speaker 00: Adam Pulver for plaintiff. [00:14:35] Speaker 00: Just jumping right into what Blumberger actually says. [00:14:40] Speaker 00: There are two separate issues at stake here. [00:14:43] Speaker 00: Whether something is covered by 233A and whether the government is covering it. [00:14:49] Speaker 00: And Blumberger is crystal clear. [00:14:51] Speaker 00: It says, and this is on page 1130 of this decision, [00:14:55] Speaker 00: Section 233 L1 confirms that the attorney general must notify the state court first whether the defendant was deemed during the relevant time period, and two, whether the complaint arises out of the performance of services listed in 233 A. What Blumberger says is there's a third thing that [00:15:15] Speaker 00: the attorney general should not wait on, which is whether there's an ultimate coverage decision in that case, which was tied to scope of employment. [00:15:23] Speaker 00: But the 233A question is part of the 233L1 inquiry. [00:15:29] Speaker 00: Coverage is not. [00:15:31] Speaker 00: And so I agree that coverage, I agree with my friend on the other side, that this is not about a coverage decision that HHS has to make or DOJ, but this question of whether 233A applies at all. [00:15:43] Speaker 00: is necessary for there to be any federal court jurisdiction at all. [00:15:48] Speaker 00: And so those two things are necessary to get into this world at all. [00:15:55] Speaker 00: And I think it's important to realize that Blumberger only actually says that where there's a violation of the duty to remove, there's this remedy. [00:16:06] Speaker 00: And the remedy, it's not clear, is it a removal remedy or I think the court refers to it as a federal court [00:16:13] Speaker 00: what Judge Smith referred to as the third way, what actually, what the nature of that third way is. [00:16:18] Speaker 00: But you first have to find there was a violation of the obligation to remove under 233L1. [00:16:23] Speaker 00: And here there was no such violation because correctly, and that's what distinguishes this case from Blumberger, [00:16:31] Speaker 00: everything in the letter that DOJ submitted was correct. [00:16:35] Speaker 00: In Blumberger, their argument is they are wrong. [00:16:37] Speaker 00: They have already determined the deeming determination, and they're just wrong as a matter of fact and law, and DOJ was wrong as to what it had to decide. [00:16:46] Speaker 00: Here, the letter says, we haven't decided this is a 233A case yet. [00:16:50] Speaker 00: And that is something DOJ is supposed to decide under the statute. [00:16:54] Speaker 00: In fact, that's exactly what the statute says, and what Blumberger says that DOJ is required to do, advise the court, [00:17:00] Speaker 00: whether it has determined whether this is a 233A case. [00:17:05] Speaker 00: And what did DOJ do here? [00:17:06] Speaker 00: It said, we have not yet determined. [00:17:08] Speaker 00: As a matter of plain text, that's answering the question whether you have determined something is a 233A case. [00:17:14] Speaker 03: Let me see if I understand this. [00:17:15] Speaker 03: But if something is a 233A case, is that a deeming decision or a coverage decision? [00:17:22] Speaker 00: Neither. [00:17:22] Speaker 00: It's this third category. [00:17:24] Speaker 00: What Blumberger says is 233A decision. [00:17:26] Speaker 00: You look at the complaint and you look to see whether what is alleged in the complaint falls within the scope of 233A. [00:17:34] Speaker 00: And under Friedenberg, this court's decision applying 233A, that determination is based on the, I want to make sure I get the exact wording correct, [00:17:44] Speaker 00: the alleged wrongful conduct. [00:17:47] Speaker 00: So that's why in Blumberger the court says there are only two things that matter for the attorney general to decide. [00:17:52] Speaker 00: You look at the complaint, if there's a deeming letter in effect, you look at a deeming letter and you look at the complaint and you say on the face of the complaint are these allegations within the scope of 233A. [00:18:03] Speaker 00: And that is what we say is correctly, and the Department of Justice has later determined and advised the court and the Eighth Circuit again agreed this morning that these allegations are not within the scope of 233A. [00:18:16] Speaker 03: But this is not something that the district court reached. [00:18:20] Speaker 03: So when I read Bloomberg, [00:18:23] Speaker 03: It seemed given that the deeming determination for the coverage was medical because it was a medical malpractice issue. [00:18:33] Speaker 03: And here you have something a little bit adjacent, perhaps, of data privacy breach and whether [00:18:40] Speaker 03: We know that AHS was deemed an employee, but whether it's deemed for purposes of these medical functions is not something that the district court has addressed one way or the other. [00:18:51] Speaker 03: So wouldn't we have to send it back to have the district court make that threshold determination? [00:18:56] Speaker 03: Why would we be making it? [00:18:58] Speaker 03: I don't know if you're asking us to make that determination first. [00:19:00] Speaker 00: Well, certainly we don't think you have to because this was an adequate alternative ground for affirmance. [00:19:04] Speaker 00: It was fully briefed by the parties below. [00:19:06] Speaker 00: AHS chose not to respond to the briefing on the merits, even though it is in other cases before this court addressed the merits that are behind this case. [00:19:15] Speaker 00: This case has been delayed. [00:19:16] Speaker 00: This case was filed in 2023. [00:19:17] Speaker 00: The appeal was in 2024. [00:19:19] Speaker 00: To just send it back, I think we'll just be back here in three years. [00:19:23] Speaker 00: and that's kind of prejudicial to the administration. [00:19:26] Speaker 03: I'm not actually sure about that because the only reason why we have jurisdiction right now is because of federal officer removal. [00:19:33] Speaker 03: If the court decides that this is not a coverage and remand, I don't think we would have jurisdiction at that point. [00:19:40] Speaker 00: Well, I think, I'm not sure if that's been briefed or decided exactly, but if the court, under 233C, what the court would have to do in that case is remand the case to state court. [00:19:52] Speaker 00: So under the Supreme Court's decision in BP, any remand order in a case that was removed pursuant to 1442, a remand order is appealable. [00:20:02] Speaker 00: So the 233C remand order would likely be appealable. [00:20:06] Speaker 03: Well, I guess you're right. [00:20:07] Speaker 03: We don't need to get into that. [00:20:09] Speaker 03: But in any event, I'm not hearing you argue that you would ask our panel to decide. [00:20:15] Speaker 03: this issue of whether data privacy breach falls within the sort of medical function. [00:20:20] Speaker 00: We are arguing that the court should because it's a question of law that's been fully briefed. [00:20:25] Speaker 00: It's pending. [00:20:26] Speaker 00: There are multiple cases in the circuit. [00:20:28] Speaker 00: It's coming up over and over again. [00:20:30] Speaker 00: And then that should be addressed because I think there needs to be some guidance for the lower court into what to do and how to analyze the 233A question at the very least. [00:20:40] Speaker 05: Why don't you address the question about [00:20:43] Speaker 05: was the district court did they erroneously determine that the removal was untimely? [00:20:50] Speaker 05: Right. [00:20:51] Speaker 05: That's the big question. [00:20:53] Speaker 05: If we could get it, we've talked about that now, but now was it untimely? [00:20:59] Speaker 00: So first of all, AHS did not respond to the untimeliness argument at all in the district court. [00:21:04] Speaker 00: The cases they cite saying that somehow because the court agreed with plaintiff now, they can oppose for the first time. [00:21:12] Speaker 00: That's classic forfeiture. [00:21:13] Speaker 00: But secondly, it's very clear in the document that was filed in the state court 40 days before removal that the federal government said, you are, we agree, you are deemed a PHS employee and under their theory of federal officer removal, that is all that you need to, that's the only relevant fact that they say allowed them to remove under the federal officer removal statute. [00:21:36] Speaker 05: And that's under 1442A1, right? [00:21:39] Speaker 05: Yes. [00:21:41] Speaker 00: So that would be sufficient to find that the whole removal was untimely. [00:21:46] Speaker 05: But the fact that they didn't talk about it really [00:21:50] Speaker 05: doesn't matter. [00:21:51] Speaker 05: I mean, you could argue forfeiture, but the district court addressed the argument about timeliness and remanded on that basis. [00:21:59] Speaker 05: So I can't think that it is forfeited. [00:22:02] Speaker 05: The district court talked about it and made a decision about it. [00:22:05] Speaker 00: The district court did talk about it, but they are saying the district court applied the wrong statutory provisions. [00:22:10] Speaker 05: Well, I understand what they say now, but the fact is they talked about it and made a decision nonetheless. [00:22:16] Speaker 00: And we think, ultimately, Your Honor, it's irrelevant, because 40 days is clearly 10 days too late. [00:22:20] Speaker 00: And unless the Court has further questions, I'll let that call it from the government. [00:22:24] Speaker 01: Thank you. [00:22:24] Speaker 01: Any additional questions? [00:22:26] Speaker 00: Thank you. [00:22:27] Speaker 01: Let's hear from the government. [00:22:41] Speaker 02: Thank you. [00:22:41] Speaker 02: Good morning. [00:22:42] Speaker 02: May it please the Court. [00:22:44] Speaker 02: Kevin Soder from the Department of Justice for the government. [00:22:47] Speaker 02: I appreciate that this is a complicated statute to say the least. [00:22:50] Speaker 02: I don't think this case has to be particularly complicated for this court if the court charts a path through it that will result in an efficient resolution of this case as well as potentially control some of the numerous other cases that are already in this court on the same issues. [00:23:07] Speaker 02: So I heard some questions I think from Judge Sanchez about remanding to the district court to reassess all of this with the benefit of Blumberger. [00:23:13] Speaker 02: I don't think that's actually necessary here. [00:23:15] Speaker 02: You have several district courts in this circuit who have addressed identical cases and have held that they need to be remanded to state court. [00:23:23] Speaker 02: At least two of those decisions, the ones by Judge Chabris and the Johnson and Gerson cases that we discussed in our brief are on appeal to this court right now. [00:23:30] Speaker 02: You'll see you have briefs from the same lawyers addressing the same issues, explaining why Judge Chabris was correct to remand that case. [00:23:38] Speaker 02: I think you certainly could wait and address the issues there, but that would just be protracting both this litigation and that litigation in a way that's unnecessary. [00:23:46] Speaker 02: And I'm happy to talk through the details of what he said. [00:23:48] Speaker 05: Well, if we say that the district court was right, [00:23:52] Speaker 05: that this was untimely. [00:23:55] Speaker 05: paces over, isn't it? [00:23:57] Speaker 02: So I think untimeliness only really goes to the 1442 removal piece of it. [00:24:01] Speaker 05: I understand what it goes to, but at that point, if it's untimely, then there's a reason to remand anyway. [00:24:08] Speaker 05: And the district court would, maybe they, I think the district court made a bad decision about the attorney's fees and why to give the attorney's fees, because they hit the wrong issue, but untimeliness, you could do the same thing. [00:24:23] Speaker 02: So I do think that it was it is very likely based on how these cases are playing out that we will be back here and as my colleagues had 3 years if you remand to the district court without deciding any of the issues that have been briefed by the parties here about the impact of but burger I think it is at a minimum important to correct. [00:24:39] Speaker 02: the blatant misunderstanding of Blumberger that is pervasive. [00:24:43] Speaker 01: Let me get right to that because I want you as the lawyer to help me sort of unpack the importance of Blumberger because I don't think it really helps your case. [00:24:54] Speaker 01: The way that the panel, the majority on that panel [00:24:57] Speaker 01: explains how the statutory scheme works is that there is this 15 day window for the Department of Justice to the Eighth Attorney General to really come in and notify the court as to whether it's deemed to be covered under 233. [00:25:14] Speaker 01: And what the panel said is that an affirmative scope of employment certification under subsections C obligates the AG to remove the case to federal court. [00:25:27] Speaker 01: The AG did say that it deemed under 233, within the scope of 233, that's about the extent of it as I understand it, but it didn't say whether there is a scope of employment certification within that 15-day window. [00:25:43] Speaker 01: So as I read this discussion of how the statutory scheme is laid out in Bloomberg, there is that 15-day window during which you have to tell the court whether you can make that decision. [00:25:55] Speaker 01: And that decision, if it's affirmative, will then obligate the AG to remove the case. [00:26:00] Speaker 01: And then it goes on to say if the AG doesn't do that, then the defendant may do the removal. [00:26:07] Speaker 01: So what am I getting wrong about the scheme as laid out in the majority panel? [00:26:12] Speaker 02: Two things. [00:26:14] Speaker 02: One is the statute, the court focused only on the government's own removal obligations. [00:26:18] Speaker 02: So I'd like to set aside that second question of whether a defendant can remove. [00:26:21] Speaker 02: But on when the government has to provide substantive positive advice to the state court and remove the case itself, the court's analysis at pages 1129 to 1131 is extraordinarily clear that the language in L1 that says acts or omissions that are the subject of the suit refers to whether the lawsuit arises from one of the categories of conduct for which the defendant is covered. [00:26:47] Speaker 02: And it goes on to make clear that what it means by that [00:26:50] Speaker 02: is whether the lawsuit arises in the case of a part or full-time employee from one of the types of conduct described in Section 233A. [00:26:58] Speaker 02: And this is a case in which the Attorney General has concluded and has made clear that the case does not arise from one of those categories of conduct. [00:27:07] Speaker 02: The Fourth Circuit and this morning the Eighth Circuit have agreed with that interpretation of the statute. [00:27:11] Speaker 03: The court doesn't need to say necessarily that that's but can I just so the AG you're saying that AG is saying that now in your briefing, but it didn't say that to the trial to the district court shortly after this case was removed. [00:27:23] Speaker 02: I think as Blumberger recognized and as Judge Chabris explained quite well, it's [00:27:27] Speaker 02: Quite reasonable and understandable that when the government had this other understanding of the additional scope of employment analysis that was supposed to be done before the 15 days, it did something else in this case, but that doesn't make this case either properly removed by the defendant or one that the government was supposed to remove itself because unlike Bloomberg, or this is not a medical malpractice case. [00:27:47] Speaker 02: Bloomberg was a classic medical malpractice case. [00:27:50] Speaker 02: It nonetheless devoted these pages of analysis to making clear it was rejecting the defendant's argument that deemed status alone is what compels the attorney general to remove. [00:27:58] Speaker 02: It says again and again and again that the thing that compels the attorney general to remove under this understanding of the statute is if the attorney general concludes that the case falls within one of these covered categories. [00:28:10] Speaker 03: But it has to do it within that 15-day window. [00:28:12] Speaker 03: And of course, no one had the benefit of Blumberger. [00:28:14] Speaker 03: So you're sort of wanting us to just bootstrap the fact that it's made later on as if it had been made in the 15-day window. [00:28:22] Speaker 02: I think that's why there are two options you could do, both of which were laid out in our brief and neither of which was responded to persuasively. [00:28:28] Speaker 02: What I had thought would be the most straightforward thing that the court doesn't seem to be talking about this morning is say, OK, in this situation where the government didn't comply understandably with the subsequent decision in Blumberger, [00:28:38] Speaker 02: have the court decide for itself what the government should have said, which means have the court decide for itself whether the Fourth and Eighth Circuits got it right that these data breach claims fall outside the statute. [00:28:46] Speaker 02: That was fully briefed in the district court. [00:28:48] Speaker 02: It started with the notice of removal that was briefed. [00:28:50] Speaker 02: It was briefed in this court. [00:28:51] Speaker 02: And I don't think that the court's authority to resolve a case on alternate grounds can be evaded by just refusing to address that issue in the reply brief, which is what you have here. [00:29:00] Speaker 02: So that's, I think, a straightforward way through. [00:29:03] Speaker 02: If the court doesn't want to definitively resolve that issue that's pending in all of these other cases that will come up to this court, [00:29:07] Speaker 02: I think the court could still say, this remand order is affirmed. [00:29:11] Speaker 02: This case needs to go back to the state court for exactly the reasons stated by Judge Chabrier, which is the statute only allows a defendant to remove if the attorney general fails to appear. [00:29:20] Speaker 02: The attorney general's appearance here, while deficient under this court's subsequent decision in Bloomberger, was reasonable at the time, and it would be unfair to the government to treat that as a non-appearance under the statute. [00:29:31] Speaker 02: And so I think following that approach, saying this case goes back to state court, [00:29:35] Speaker 02: not just back to the federal district court, would progress this litigation and avoid having another appeal about a threshold issue of what forum that is in turn a threshold issue to another question of whether there is immunity from suit for this defendant before the case can ever even get to the merits. [00:29:50] Speaker 01: What about the third option? [00:29:51] Speaker 01: Remanding to the district court to reconsider in light of the guidance provided by Blumberger, because one of the options discussed in Bumberger is that if there's a motion to remand, the court may hold a hearing as to whether the employee was acting within the scope of employment. [00:30:07] Speaker 01: So it's changed because the scope of what the government may say now within that 15 day window may be very different in light of Bloomberg. [00:30:17] Speaker 01: So why not just have the district court hold the hearing and let's have the district court make a determination the AG can make its best scope of employment arguments at that point. [00:30:29] Speaker 02: So first of all, these are not scope of employment arguments. [00:30:31] Speaker 02: These are scope of 233A arguments. [00:30:33] Speaker 02: You could think of them as the scope of what the deeming covers. [00:30:36] Speaker 02: Second of all, I think the [00:30:38] Speaker 02: At a bare minimum, what the court should do is not endorse the argument that this case is one that was either properly removed to federal court in the first place or one that the government was supposed to have removed itself. [00:30:49] Speaker 02: So the hearing under 233 C that's contemplated is for a case that was properly removed. [00:30:54] Speaker 02: I suppose the court could find some way of saying, you know, assuming without deciding that the case was properly removed. [00:31:00] Speaker 02: Here's why it should be remanded, and that would be the data breaches aren't within 233A. [00:31:03] Speaker 02: But the thing the court definitely shouldn't say is to endorse the misreading of Blumberger that says that 233A isn't even part of what the attorney general is supposed to consider in the first place. [00:31:16] Speaker 05: Thank you. [00:31:16] Speaker 02: Thank you. [00:31:18] Speaker 01: Thank you very much. [00:31:26] Speaker 04: Your honor, I recall [00:31:30] Speaker 04: government council saying it was very clear that mere appearance precluded judicial review in the argument in the Blumberger case and Judge Bybee quickly responded there's that's anything but clear and then concluded with in the decision. [00:31:47] Speaker 04: One clear thing is the government doesn't get to make [00:31:50] Speaker 04: unreviewable coverage decisions. [00:31:51] Speaker 04: And what you're hearing here today is basically smuggling in the very position that they advanced in the Bloomberg case, which is to make a decision about what this immunity covers in advance of the claim for coverage or the litigation of the dispute and have that preclude removal jurisdiction and review by the court. [00:32:13] Speaker 04: So this is exactly what [00:32:15] Speaker 04: The Blumberger decision referred to on page 1132 as an additional deeming decision by the secretary, one that occurs after the litigation has commenced and applies with respect to the actions or omissions giving rise to the suit. [00:32:29] Speaker 04: That's what they're asking this court to do is to find another decision within the statutory scheme that doesn't exist in order to preclude review of their cover decision, which courts have reached different conclusions on. [00:32:42] Speaker 01: All right, thank you very much to all counsel for your helpful arguments this morning. [00:32:46] Speaker 01: That concludes the argument in this case, the matter submitted and we are adjourned. [00:32:53] Speaker 01: Thank you.