[00:00:00] Speaker 01:
on calendar for argument is Delvecchia versus Frontier Airlines, Inc. Counsel for appellant, please approach and proceed.

[00:00:11] Speaker 03:
Thank you, Your Honors, and good morning. I'm John McKay, and I represent the appellants, the Delvecchias. I'll reserve five minutes for rebuttal.

[00:00:20] Speaker 01:
Counsel, please be reminded that the time showing is your total time remaining. Yes, Your Honor, thank you. All right.

[00:00:32] Speaker 03:
Sorry.

[00:00:32] Speaker 01:
No worries.

[00:00:35] Speaker 03:
What happened to the Delvecchias on the Frontier Airlines flight was the same thing that the late Justice Scalia determined was illegal, immoral, unconstitutional, inherently wrong, and destructive to democratic society.

[00:00:54] Speaker 03:
A frontier crew on an airplane separated a black child from his white father based on their looks. and fabricated criminal allegations against them, allegations which the FBI later determined were baseless.

[00:01:09] Speaker 03:
What happened to their civil case in the district court was no less wrong. The district court made several critical errors for which we seek reversal.

[00:01:18] Speaker 03:
It applied the immunity of 49 U.S.C. 44941 beyond its well-established purpose in a way that no other court ever has to conduct unrelated to airline security. It violated its duties under Rule 56 on a motion for summary judgment by disregarding relevant evidence, by applying evidence in favor of the movement that the jury was not required to believe, by failing to make reasonable inferences in the Delvecchia's favor, by weighing the evidence, by making credibility determinations that it was not permitted to make.

[00:01:58] Speaker 03:
It applied the four-factor test of Lindsay versus SLT Los Angeles as if it were statutory, rather than applying the Supreme Court precedent from McDonnell Douglas and its progeny that the factors of McDonnell Douglas are to be applied flexibly to the facts of individual cases.

[00:02:19] Speaker 02:
Did airline personnel know of the relationship between the two?

[00:02:25] Speaker 03:
Well, they claim they didn't, Judge Hawkins, but the truth is that the airline from the beginning knew that they both had the same surname because there was this passenger name record, or PNR, that identified every transaction that Peter Delvecchia made and also named his son with the same surname.

[00:02:48] Speaker 03:
And, in fact, there was testimony... from one of the flight attendants that the captain used the terms the father and the son, even though the captain claimed in his deposition that he didn't know their relationship. The six crew members were unable to come up with one set of facts about what happened that correlated to everyone else's statement of facts. There were six different stories by the crew members about what happened on the flight.

[00:03:21] Speaker 00:
Was there not some agreement that the father was caressing the child's face?

[00:03:26] Speaker 03:
That agreement is overstated, Judge Bress, because, in fact, Peter said, well, you know, I do sometimes touch my son's face. And the son said in deposition after a haranguing bunch of questions from defense counsel that, okay, you know, my dad might have rubbed my face. the word rubbed was used quite a bit in the questioning. Um, but, um, when it was demonstrated by the one flight attendant who claimed to have seen it, um, it was, it was a nothing burger, if you'll excuse the expression.

[00:04:04] Speaker 03:
Um, it was, it was simply this, um, And I really would recommend that the court grant our motion to allow the videotape evidence to be put in the record because you can see at the area that I marked on the video where I asked her, you know, exactly what happened? What did you see? And she said it was like this. And she said it was nothing that a parent would ever do to their child.

[00:04:31] Speaker 03:
And I thought, well, you know, I went on the Internet and I found, you know, dozens of examples of this. I mean, it's just a... But what does this prove?

[00:04:38] Speaker 00:
I mean, I think that the flight attendants, you know, the testimony from the flight attendant was it wasn't normal. She hadn't seen a parent doing that before. And so these are people who are trained in safety. And, you know, we're all trained that if you see something, say something. And so they saw something that looked out of the ordinary. And, you know, it was later investigated and determined not to... you know, have a basis apparently, but at the time they're, they're seeing this and they were concerned. And so I guess the question is, you know, where did they go wrong in all of this?

[00:05:09] Speaker 00:
And what, where, where does it state a claim? You know, I mean, it's unfortunate to have had this happen, but where, where's the legal claim here?

[00:05:16] Speaker 03:
I'm happy to respond to that. Just press. First of all, it wasn't they that saw it. It was one flight attendant and she was trained, not just if you see something, say something, but if you see something, Get another crew member to see it also before you report it to the captain. That was a standard operating procedure, and it was not followed. And the chief pilot at the time, who was the corporate designee in the deposition of Frontier Airlines, determined that was inexplicable.

[00:05:49] Speaker 03:
That was exactly the word he used, inexplicable, why she didn't get another person to see it. But then she lied.

[00:05:56] Speaker 03:
In her testimony, she said, and in her statement to the captain, she said, Amanda Nickel, another flight attendant, also saw it. And, in fact, I know it was done for too long because that's based on what Amanda saw. Amanda Nickel testified she never saw it. And, in fact, she told the captain she never saw it. So the captain knew.

[00:06:17] Speaker 00:
What does this prove from a legal perspective, right? How does this amount to a legal claim?

[00:06:23] Speaker 03:
And certainly, Your Honor.

[00:06:26] Speaker 03:
To start with the caressing, so to speak, or the rubbing, whatever you want to call it, is wrong because their own testimony stated that they started surveilling these people before that ever happened, long before that ever happened, based solely on their looks. They didn't say on their looks, but they said the appearance they had made them feel uneasy. They looked awkward together, and they decided that they should be watched. Was race mentioned at all?

[00:06:58] Speaker 03:
I'm sorry, Your Honor.

[00:06:58] Speaker 01:
Was there race mentioned at all when they were talking about that they looked awkward together?

[00:07:03] Speaker 03:
No, and that's a fair point. But the depositions of three of the four flight attendants and one of the pilots occurred after a meeting with counsel in which they all participated, and they testified that they had just sat down with defense counsel. So I'm not surprised that they didn't mention race when they'd all been sued for race.

[00:07:25] Speaker 01:
No, but I mean, was race mentioned at the time when they were saying that they looked awkward together?

[00:07:31] Speaker 03:
Another interesting point, Your Honor, the testimony was that from Pilot Mullins, the first officer, co-pilot, he said that, in fact, descriptions of them had been given by the flight attendants, yet everybody else denied them. that they had ever mentioned their race, and Captain Shoup said he never knew their race until the flight landed. Captain Shoup was standing in the galley talking about them with all the flight attendants.

[00:08:01] Speaker 03:
That was only 17 rows away from where they were sitting.

[00:08:05] Speaker 01:
Their races were demonstrably obvious. Exactly, exactly.

[00:08:11] Speaker 03:
And there's no other explanation for why their appearance made the flight attendants feel awkward. The only thing they ever did, they walked onto the plane, they sat down, they were asked about the young boy's age. They said 12.

[00:08:28] Speaker 03:
They said they would be happy to exchange seats with another couple, and they did. That's it. After the flight took off, they fell asleep. There was nothing to warrant determining that they were unusual or that they should be surveilled other than their appearance.

[00:08:48] Speaker 00:
I don't know that anyone was surveilling them, as you say. I mean, it seemed that in the testimony they identified some things that were a little different, but then they saw the caressing or the stroking of the face, and that's really what set in motion the whole events. It wasn't him not answering what drink he wanted or something like that. That's not what led to this.

[00:09:09] Speaker 03:
I think that's buying hook, line, and sinker, the defense strategy that it all began with the face caressing, because that's not what the timeline shows in the testimony, and this testimony came from them themselves, from the flight attendants themselves. The first flight attendant who was deposed was Ms. Bright, who unfortunately has a different last name that's shown on the transcript, Sakaruta, that's a married name, but in the Majority of the documents in the case, she's called Bright, Chelsea Bright.

[00:09:42] Speaker 03:
Nice young lady. That's the one that did the demonstration. She said that she was thinking about the flyer that they got two months beforehand that said that they should be alert to human trafficking. And she mentioned human trafficking in a statement that Sergeant Obasi heard in the jet bridge when the flight landed. She said, one's white, one's black. I don't believe they're related.

[00:10:13] Speaker 03:
This makes me think, or something to the effect of this makes me think of my training about human trafficking. She testified that human trafficking to her means a child who is with somebody they shouldn't be with that's not their parents. And she then declares on the jet bridge, I don't think they're related. What possible reason could she have for thinking they're not related other than they're disparate races?

[00:10:42] Speaker 03:
I've gone beyond my 10 minutes.

[00:10:44] Speaker 03:
I'd like to reserve some time for rebuttal.

[00:10:46] Speaker 01:
All right. Thank you, counsel. Thank you.

[00:10:47] Speaker 04:
Good morning, Your Honors.

[00:11:01] Speaker 01:
Good morning.

[00:11:01] Speaker 04:
Good morning, counsel. May it please the court.

[00:11:05] Speaker 04:
My name is Richard Harris. I'm here today on behalf of Frontier Airlines.

[00:11:11] Speaker 04:
Your Honors, this flight crew acted admirably.

[00:11:15] Speaker 01:
Admirably?

[00:11:16] Speaker 04:
I believe they acted, yes, quite admirably, given the circumstances.

[00:11:20] Speaker 01:
Would you dispute that the father was hit in the head? Do you dispute that?

[00:11:27] Speaker 04:
Absolutely. Okay. Yes, and there's no evidence.

[00:11:30] Speaker 01:
Is there a question of fact about that?

[00:11:32] Speaker 04:
There's no evidence to support the allegation. We've had years of discovery, broad avenues of discovery.

[00:11:40] Speaker 01:
Is there medical evidence of him having a concussion?

[00:11:44] Speaker 04:
He submitted some doctor reports that said that weeks after the incident, he had an incident where he fell and hit a ping pong table on his head. And the doctor deduced, apparently, that this was not a brand-new concussion but had exacerbated a previous concussion.

[00:12:04] Speaker 02:
Do you think the doctor made that up?

[00:12:07] Speaker 04:
You know, it's not my place to say that the doctor made that up, Judge. I would say I question it, yes. I do not believe that Peter Delvecchia was punched in the back of the head during that fight.

[00:12:18] Speaker 01:
At a minimum, isn't that a question of fact?

[00:12:21] Speaker 04:
I don't think so, Judge. Respectfully, there's not a shred of evidence to support it.

[00:12:26] Speaker 04:
Everyone sitting around there was interviewed.

[00:12:30] Speaker 01:
If I say someone hit me in the head and they deny it, that's not a question of fact?

[00:12:38] Speaker 04:
Well, there has to be some evidence, though, under sell-a-text.

[00:12:42] Speaker 01:
My statement wouldn't be enough evidence. If I testified under oath in a deposition that someone hit me in my head and the person denied, testified under oath that they didn't hit me in the head. Would that be a question of fact?

[00:12:58] Speaker 04:
If that's all we had, it might be, Your Honor, but respectfully, I think they can't just proceed on their own self-serving allegations. Christopher Higgins was seated three rows behind it. He's a 25-year New York police officer. He testified he remained vigilant the whole time, had his eyes on it, and said that, It was reaching over and tapping. He said that the whole incident went kind of easy.

[00:13:25] Speaker 04:
No one seated around them reported seeing this. And what's more, they were asleep. And as the court pointed out, as he's asleep, and they both say they were asleep, and this is, you know, they took their sleep aids. Okay, importantly, they both took their sleep aids, and they say they don't remember anything until they're awakened and asked to get out of the aisles.

[00:13:49] Speaker 04:
Okay, and at that point, you know, we have two individuals who contracted for airfare to Las Vegas to seat together. Now, airlines reserve the right to change seats, change bags, however needed, as is necessary.

[00:14:08] Speaker 02:
There was a change of seats, right?

[00:14:10] Speaker 04:
Right. So they were reseated.

[00:14:12] Speaker 02:
Which the father and the son agreed to, correct?

[00:14:15] Speaker 04:
Correct, because the son was too young.

[00:14:18] Speaker 04:
And so they're reseated without incident. Now, subsequently, Chelsea Bright sees the stroking of the face that makes her uncomfortable. And I have no problem with you watching the video of that. She said he was stroking her up and down, up and down, looking at him intently. She said she'd never seen anything like that before. It made her uncomfortable. So she reported that to the captain. Okay, subsequently, and it's undisputed, the plaintiffs are both sound asleep. They've alleged it. over and over in the complaint, and it's in the depositions in the written discovery.

[00:14:53] Speaker 02:
And now... I have two sons, and I have routinely kissed them on the cheek from the moment they were a baby until now one is 55, the other is 40.

[00:15:07] Speaker 02:
I can't do that on an airplane?

[00:15:09] Speaker 04:
That's... I'm not saying that at all, Judge. And I... kiss my child as well and hope to do so forever, and I hope everyone here does.

[00:15:18] Speaker 04:
This isn't about the kissing on the cheek. It's about the fact that the flight attendant, Warren, observed Peter's hand on A.D. 's crotch, and they're both asleep, so this report is made to the captain, and the captain says, okay, we're going to preserve the status quo. To the extent that there may be some ongoing incident of child endangerment, We're not trained law enforcement officers. We're going to take AD to the back of the flight, and we're going to let the trained law enforcement officers sort this out on the ground.

[00:15:54] Speaker 01:
Counsel, was there a passenger who was seated near them who said he never saw that?

[00:16:00] Speaker 01:
He never saw the father put his hand on the crotch?

[00:16:05] Speaker 04:
I believe, I don't think that any of the other passengers confirmed seeing that. The hand on the crotch.

[00:16:13] Speaker 02:
That's not the question, counsel. Isn't it true that there is a passenger who observed them and said he never saw that happen?

[00:16:23] Speaker 04:
I believe the passenger that was seated in that row said he never saw it happen. I believe he also said he wasn't specifically looking out for that.

[00:16:32] Speaker 01:
Is that a question of fact, counsel? If he said he never saw that happen, he was seated in the same row, isn't that at a minimum a question of fact?

[00:16:44] Speaker 04:
And I understand the question, Judge. I respectfully disagree because he's asleep and because he lacks the foundation to challenge that the Delvecchias are both asleep.

[00:16:54] Speaker 04:
And so they lack the present-sense impression to be able to challenge that. And importantly, Peter Delvecchia, he testified that he himself was concerned after the fact. He said he spent months doubting himself.

[00:17:09] Speaker 01:
May I ask you this about the hit in the head? Didn't the PNR say something about passengers reported seeing someone being hit in the neck or in the neck area?

[00:17:21] Speaker 04:
And I'm glad you bring that up, Judge, because that is a report from Peter Delvecchia himself calling into Frontier Customer Service and saying he's registering his complaint, he's following up, and he's saying he spoke with the FBI. And he's saying the FBI told him that they interviewed people and that someone saw this happen. So this is Peter Delvecchia injecting multiple layers of hearsay into the PNR. So that evidence, I don't believe...

[00:17:50] Speaker 04:
should be considered at all.

[00:17:53] Speaker 04:
And I understand that we have a classic he said, she said, which would ordinarily set up a traditional question of fact. But here, when we have, they all say that they were asleep.

[00:18:08] Speaker 04:
And then, you know, this has happened before in movie theaters. That's what he tells, or in a different flight. And that's what A.D., the child says. tells F.A. Warren immediately after, when he takes him to the back row, he says, this has happened before. So, you know, they fall asleep. They're affectionate. There's nothing wrong with that. They're holding hands. There's nothing wrong with this. And the hand falls on the lap. I'm not saying that something nefarious was afoot, but they've both admitted that they took sleep aids, and they fell asleep, and they have no recollection of what happened after that.

[00:18:46] Speaker 02:
Is it? Your position, counsel, that ATSA immunity extends to the entire course of action by the airline and its employees?

[00:19:00] Speaker 04:
I would not say to the entire course.

[00:19:02] Speaker 02:
Okay, then tell me to what extent that immunity does not extend.

[00:19:08] Speaker 04:
Well, I would start by saying that the immunity applies, and I think that's an important aspect.

[00:19:12] Speaker 02:
I understand that's your argument, that it does apply. I want to know, does it extend to the entire course of conduct? I think you've now told me no. Is that right?

[00:19:23] Speaker 04:
I think it extends to the actions that logically flow from a protected disclosure, and I think the district court was very careful.

[00:19:30] Speaker 02:
My question was the entire course of action.

[00:19:36] Speaker 04:
No, I'm not saying that it's blanket immunity. There could be circumstances where that's the case. I think it's a case-by-case basis.

[00:19:43] Speaker 00:
It's a factual... So what claims are you claiming are covered by the immunity?

[00:19:48] Speaker 04:
The defamation, okay, the statements from the ACARS to law enforcement, the defamation, and the false imprisonment. So why would the false imprisonment be covered?

[00:20:00] Speaker 04:
I think the district court correctly analyzed that because we're making a report...

[00:20:06] Speaker 04:
okay, we've got a legitimate concern about an ongoing issue of child endangerment, that we would make that report and then not be able to act on it. Potentially we're allowing this conduct to carry on. And so separating the two was, I think, a very reasonable decision in exercising the captain's discretion.

[00:20:30] Speaker 01:
Why is it covered under the immunity clause?

[00:20:32] Speaker 04:
Because it's conduct, I think, that the district court... Is it a disclosure?

[00:20:37] Speaker 04:
It's not a disclosure, but I think it's the district court reasoned it reasonably flows from the disclosure, that it logically flows.

[00:20:44] Speaker 01:
Is there a case that you rely upon to support the argument that if something reasonably flows from the disclosure, it's covered by the immunity? What case says that?

[00:20:55] Speaker 04:
Well, the Abdullah case and the Baez case from the 2nd District... 2nd District? 2nd Circuit... have both acknowledged that it can apply to more than the disclosures. Now, Abdullah says that it's only to the extent that you're acting on the instructions of the law enforcement officers.

[00:21:13] Speaker 00:
Well, right. I mean, the Abdullah case talks about impacts that flowed from decisions made by law enforcement officers. So we don't have a claim against any law enforcement officers here.

[00:21:24] Speaker 04:
I think that it's the district court, I think, correctly. And he said, well, we don't always have time to get the law enforcement's instruction, you know, they're not always available. But what did happen here is that, you know, unlike in Abdullah, the captain is actually working against the the law enforcement, and the security officers who advised him there is no security threat, that plane should leave. That captain's working against law enforcement. Here, our captain is working with law enforcement through the ACARS. Okay, we'll have Leo's at the gate.

[00:21:52] Speaker 00:
Nobody told the captain to separate the two. I mean, he made that decision. We can debate whether that's reasonable, what other defenses you would have, but it's not a disclosure, right? So the unity statute doesn't seem to be as broad as would cover that.

[00:22:06] Speaker 04:
I think, you know, the district court looked at the language. It said all of the laws and regulations of the United States, not simply defamation and reputation-based torts. Now, I understand reasonable minds can disagree, and perhaps you want to restrict the extent of the ETSA immunity.

[00:22:25] Speaker 01:
Well, you didn't give us a case in the Ninth Circuit that would require us to do that. So that's why I ask you, what's the case authority for saying that the immunity extends this broadly?

[00:22:37] Speaker 04:
Well, and I'm not going to tell you that exists, Judge. There's not a lot of case law out here on the ads of immunity.

[00:22:46] Speaker 04:
But, you know, the false imprisonment claim, I think, fails on its own merits because the child was never confined to a space. He was simply separated.

[00:22:57] Speaker 01:
He was confined to a seat. Was he allowed to leave and go sit with his father again?

[00:23:01] Speaker 04:
That's the only place he was not permitted to go.

[00:23:05] Speaker 01:
But anyone, you know, whenever you fly... He has a law enforcement agent sitting beside him that's pretty big. You didn't think that that would cabin him, that he would feel like he couldn't move from that seat?

[00:23:17] Speaker 04:
I'm not certain he knew that it was a law enforcement officer, and I'm not... I mean, he could have gone to the bathroom. He could have gotten up to stretch his legs if needed. The only... place he was restricted from going was to be near Peter, who is the perceived threat. So I don't think that that is false imprisonment. I don't think it meets the elements. When I fly home here later today, it's not as though I have a right to just free reign, go wherever I want on the aircraft. I still have certain limitations.

[00:23:50] Speaker 04:
AD's limitations were not restricted in any other fashion except, and Peter Dalvecchia was allowed to come up and talk to him from the aisle. Okay, so yes, given these circumstances, and I do think it's undisputed, as the court correctly, district court correctly ruled, that F.A. Warren observed Peter's hand on AD's crotch. And so now we have two reports that give rise to this justifiable, reasonable decision that the captain makes in the moment.

[00:24:23] Speaker 01:
Counsel, what about the IIED claim? Do you think the immunity goes to that?

[00:24:31] Speaker 04:
I'm not making that argument today, Judge. I think, though, on the IIED claim, it is important that the last things Peter DelVecchia says is once he learned the police were coming, he said, thank God, because in my mind, Five minutes, and this will be on our way. That's not consistent with someone who is just pummeled and concussed.

[00:24:54] Speaker 01:
It's consistent with someone who doesn't want to escalate the situation. It's very difficult in a racially charged atmosphere.

[00:25:06] Speaker 01:
One of the primary things is to get out of the situation without it escalating.

[00:25:12] Speaker 01:
And so for him to say that doesn't necessarily mean he agrees with what is taking place. He wants to get out of the situation and deal with it later. Isn't that a reasonable interpretation of his actions as well?

[00:25:25] Speaker 04:
Yes, it is. And I think the broader point I was going toward was on the IIED. It's showing they did not suffer any extreme or emotional distress in that moment. Now, their true grievance is with the FBI. In their minds, if this had gone like the other two occasions... Five minutes, and they're on their way. We're not here today. The only reason we're here today is because when they told the law enforcement and F.A. Warren this has happened before, they ended up taking a closer look at this.

[00:25:57] Speaker 04:
If that hadn't happened, we wouldn't be here today. They could have brought an FTCA claim against the FBI. They did not. I appreciate your time today, Your Honors. Unless you have any further questions, my time is up.

[00:26:07] Speaker 01:
Thank you, Counsel.

[00:26:08] Speaker 04:
I'd ask to affirm the district court's ruling. Thank you.

[00:26:10] Speaker 01:
Thank you, Counsel Ripado.

[00:26:15] Speaker 03:
I'd like to just rebut a couple of quick points. If this was admirable conduct, it clearly violated what the DOT said that crew members should not do, which is to discriminate in the performance of their duties.

[00:26:31] Speaker 03:
Frontier got that recommendation from the DOT Its representative testified that, well, we decided we didn't need to do anything about that. Training of the type that the DOT recommended costs money.

[00:26:47] Speaker 03:
The concern about child safety that Judge Bress alluded to, this would be like saying that in the Christian versus Walmart case, the concern was about shoplifting.

[00:26:59] Speaker 03:
False allegations of criminal behavior are well-known racist tropes, and we cited a number of cases in a footnote in our brief about that. The hit on the head and the hand on the crotch are clearly questions of fact.

[00:27:15] Speaker 03:
With respect to Mr. Higgins, the off-duty officer, the jury was not required to believe him. In fact, his testimony is replete with errors and racist tropes.

[00:27:27] Speaker 03:
The Reeves case by the Supreme Court, Reeves v. Sanderson Plumbing Products, says that the court must disregard on motion for summary judgment evidence favorable to the moving party that the jury is not required to believe. And that clearly fits the Higgins testimony.

[00:27:42] Speaker 01:
I also did. Did the child know that the officer was a law enforcement officer? Is there anything in the record regarding that?

[00:27:49] Speaker 03:
I don't think so. I don't think so, Your Honor.

[00:27:52] Speaker 03:
The PNR, we have to be very careful because Frontier meshed together its investigative notes with what is the PNR. The PNR is in a software called Navitare. It's available to everybody who works for Frontier, even if they're not an employee of Frontier, if they're an independent contractor. R&T, right now technology, is the note system that they use to record their own investigations. That's not available to the wider employee base.

[00:28:23] Speaker 03:
That's where the note was that talked to the FBI, eight people interviewed, some guy was hit on the back or the neck.

[00:28:36] Speaker 03:
If Peter made that statement, he wouldn't have called himself some guy. This was clearly a note by somebody internal to Frontier noting that they had talked to the FBI. It was not from Peter, and it was not in the PNR, the passenger name record.

[00:28:54] Speaker 03:
Peter was not allowed to come and talk to his son. In fact, he was forcibly blocked by Flight Attendant Warren, who Peter testified said, you know what you did, and told him to go sit down.

[00:29:07] Speaker 03:
On respect to the ATSA immunity, the ACARS message was sent after most of this had occurred, after the separation, after the hit on the head, after the surveillance, after the awkwardness. All of those events occurred prior to the ACARS message being sent.

[00:29:24] Speaker 03:
If the court were to adopt and affirm the district court's decision, finding with respect to the acts of immunity statute, it would be affirming the precise error that the Gustafson court reversed. Thank you.

[00:29:40] Speaker 01:
Thank you, counsel. Thank you to both counsel for your helpful arguments. The case just argued is submitted for a decision by the court. The next case on calendar for argument is Acasio-Tapia v. Bundy has been submitted on the briefs.