[00:00:00] Speaker 03:
Call case number 231137, Arroyo versus Myers.

[00:00:21] Speaker 01:
May it please the court, my name is Andrew Carifelli.

[00:00:24] Speaker 01:
I represent Derek Myers, the appellant in this matter.

[00:00:28] Speaker 01:
I would like to reserve three minutes of my time for rebuttal.

[00:00:33] Speaker 01:
There is a legal maxim which basically goes, justice delayed is justice denied.

[00:00:40] Speaker 01:
The origins of that maxim are somewhat vague, but it's attributed to William Glastonbury some 150 years ago during a debate.

[00:00:50] Speaker 01:
Mr. Myers filed his motion to dismiss just over two years ago now.

[00:00:55] Speaker 01:
And it hasn't been 150 years, but now plaintiff is pretending or claiming that we should not even be here in front of this court because the district court didn't even really issue an order denying his motion to dismiss based on qualified immunity.

[00:01:11] Speaker 01:
It rather just engaged in an administrative function.

[00:01:15] Speaker 01:
And isn't that the problem that you have?

[00:01:18] Speaker 00:
We allow interlocutory appeals when the court rules on qualified immunity issues, but have not allowed interlocutory appeals when it's based on administrative rulings.

[00:01:36] Speaker 00:
And it seems to me that the case of Peterson v. Reich, Eighth Circuit, not our circuit,

[00:01:43] Speaker 00:
for the closest with that one, clearly indicated that a dismissal without prejudice and doesn't rule on qualified immunity is not a basis for an interlocutory appeal.

[00:01:58] Speaker 00:
And I'm sorry, Your Honor, which case out of the Eighth Circuit?

[00:02:00] Speaker 00:
The Eighth Circuit case of Peterson v. Rice.

[00:02:07] Speaker 01:
Well, Your Honor, I would submit that the two other circuits, the Second Circuit,

[00:02:11] Speaker 01:
and the Sixth Circuit have also looked at issues where the lower court has denied rulings on motion for summary judgment or dismissal without prejudice and found that that's not the touchstone here.

[00:02:23] Speaker 00:
That's part of it, I think.

[00:02:24] Speaker 00:
But the other part is that here the denial wasn't on qualified immunity.

[00:02:30] Speaker 00:
The denial was on an administrative decision.

[00:02:33] Speaker 00:
Well, we've got another case pending before the Tenth Circuit.

[00:02:37] Speaker 00:
It's going to decide a big issue that's going to be relevant to mine.

[00:02:42] Speaker 00:
So I'm going to clear the deck, put everybody on stay, so nobody is under any immediate problems.

[00:02:50] Speaker 00:
And we're going to wait for that other ruling.

[00:02:52] Speaker 00:
That was just plain not a ruling on denying qualified immunity.

[00:02:56] Speaker 00:
It was an administrative ruling for the efficient presentation

[00:03:02] Speaker 00:
of the court process.

[00:03:05] Speaker 00:
And that, ordinarily, would not be a ground for an interlocutory appeal.

[00:03:09] Speaker 01:
Well, Your Honor, I would submit that this court has looked at whether there's an order or not does not matter.

[00:03:16] Speaker 01:
They said silence in and of itself can be an implicit denial of qualified immunity.

[00:03:21] Speaker 02:
But isn't it precisely the district court's administrative rationale that makes this not an implicit denial?

[00:03:26] Speaker 02:
It's pretty clear that the denial here is in relation to

[00:03:32] Speaker 02:
further filings that might come, the opportunity to refile.

[00:03:35] Speaker 02:
It seems to me that your challenge all along has been to the stay of this litigation.

[00:03:40] Speaker 02:
But I didn't see you ever object to that, did you?

[00:03:43] Speaker 01:
No, we didn't object to the stay of discovery, Your Honor.

[00:03:46] Speaker 01:
But as you know, the burdens of litigation go far beyond just discovery.

[00:03:53] Speaker 01:
There's the concerns about discovery.

[00:03:54] Speaker 01:
There is incurrence of attorney's fees and expenses.

[00:03:57] Speaker 01:
that all had been running now for over a year since the court entered its order denying this motion.

[00:04:04] Speaker 03:
What would be the fees if the discovery's been stayed and everything's waiting for the circuit to rule on Westfall?

[00:04:12] Speaker 01:
Well, Your Honor, once she entered her order, then there was the whole Westfall proceeding going on.

[00:04:18] Speaker 01:
There was a bankruptcy entered.

[00:04:20] Speaker 03:
All along, I'm having to review pleadings.

[00:04:23] Speaker 03:
I thought they dismissed you from the state law claims, so you weren't part of the West Falls certification proceedings.

[00:04:29] Speaker 01:
Well, that is true, Your Honor, but every time something pops up on PACER, I need to look at it and see if it applies to me or not, regardless.

[00:04:37] Speaker 01:
My client is always calling me, saying what's going on, what is the status of this case, those types of things.

[00:04:43] Speaker 01:
He's concerned about this litigation, obviously.

[00:04:46] Speaker 01:
He's being sued individually here.

[00:04:48] Speaker 01:
So again, the burdens of litigation go far beyond state of discovery.

[00:04:51] Speaker 00:
Well, I'm just angst about being in litigation.

[00:04:55] Speaker 00:
If we allowed that as a meaningful injury, it would change the law considerably.

[00:05:03] Speaker 00:
I mean, it's assumed that that is part of what's going on.

[00:05:06] Speaker 00:
What we have to look at is the objective stuff.

[00:05:08] Speaker 00:
What kind of order are you under right now?

[00:05:12] Speaker 00:
Answer, none.

[00:05:15] Speaker 01:
There's no order compelling us to do a thing at this point in time.

[00:05:19] Speaker 01:
But as far as going back to the administrative nature of this order, all the cases that we cite in our brief where courts have looked at lower courts refusing to rule on motions to dismiss or declining to for whatever reason, they don't really get into the motivation of why the court did or didn't do it.

[00:05:37] Speaker 01:
What they're looking at is the final effect of that order

[00:05:41] Speaker 01:
which again is putting the person or subjecting them to the burdens of litigation.

[00:05:45] Speaker 01:
And that's what's still been going on here as well.

[00:05:48] Speaker 01:
So I don't think that you can really parse out, oh, this is an administrative function that, again, stays the litigation because of something going on that has nothing to do with my client whatsoever.

[00:06:00] Speaker 01:
I think the court was in error making that ruling.

[00:06:04] Speaker 01:
For one, the Westfall certification wasn't applicable to us whatsoever.

[00:06:08] Speaker 01:
The lower court didn't lose jurisdiction to hear our argument about the Bivens and qualified immunity issue whatsoever.

[00:06:15] Speaker 01:
So she was wrong about that and could have ruled on that motion long ago, but still has not done so.

[00:06:23] Speaker 01:
So our point would be that, in fact, it was an interlocked or an appealable order at that point in time.

[00:06:30] Speaker 01:
Whether you want to characterize it as an administrative state, it was still clearly a denial

[00:06:35] Speaker 01:
of his motion to dismiss, even it was without precedence.

[00:06:39] Speaker 01:
And that's why we're here now asking this court to find this a matter of law, that the court should have ruled on it, and looked at the Bivens issue below.

[00:06:50] Speaker 01:
Now, turning to the Bivens issue, the plaintiff here wants to argue that, in fact, there is, I guess, a Bivens case to be heard here.

[00:07:04] Speaker 01:
We would disagree with that.

[00:07:06] Speaker 01:
Clearly, this case is a new context under Bivens, which the court in Egbert has ruled is not a cognizable claim under Bivens whatsoever.

[00:07:17] Speaker 01:
This is a case of employees of BOP, employees suing other employees of BOP over this mock exercise.

[00:07:26] Speaker 01:
This, again, is a total new context.

[00:07:28] Speaker 01:
The only thing I could find close would be the case of Bush versus Lucas in the Supreme Court.

[00:07:33] Speaker 01:
There were employees sued a supervisor over some issues, personnel issues.

[00:07:39] Speaker 01:
And the Supreme Court declined to create a new Bivens issue in that context, indicating that they had personnel remedies that they could follow.

[00:07:48] Speaker 01:
So this is clearly a new Bivens context that shouldn't be recognized by this court.

[00:07:55] Speaker 03:
In your appeal brief, did you even argue qualified immunity?

[00:08:01] Speaker 03:
Because the district court obviously didn't rule on your qualified immunity argument, and you seem to drop that on appeal and just focus on Bivens.

[00:08:11] Speaker 01:
Well, Your Honor, Bivens is the threshold to qualified immunity.

[00:08:14] Speaker 03:
I understand that, but if you're not arguing qualified immunity, there's another problem with the appellate jurisdiction, because we would only have that based on a finding of, you know, a qualified immunity determination.

[00:08:28] Speaker 03:
We'd only have jurisdiction-based

[00:08:30] Speaker 01:
Well, our position would be, Your Honor, that the Bivens is an antecedent threshold issue of qualified immunity.

[00:08:37] Speaker 01:
They go hand in hand.

[00:08:38] Speaker 01:
You really can't separate them.

[00:08:40] Speaker 01:
If the court looks at the Bivens issue and says there is no claim there, you don't even get to the qualified immunity issue whatsoever.

[00:08:48] Speaker 01:
And Ebert has made clear that there simply is no Bivens claim here at all.

[00:08:55] Speaker 01:
So we don't need to really get to the underlying

[00:08:58] Speaker 01:
I guess, granular arguments about qualified immunity.

[00:09:02] Speaker 01:
Because here, again, we argued Bivens threshold issue.

[00:09:06] Speaker 00:
You didn't frame your argument about the merits as a part of the qualified immunity issue, did you?

[00:09:18] Speaker 00:
I mean, you argued it as a straight up merits issue, that Bivens should not be extended.

[00:09:27] Speaker 00:
Correct.

[00:09:28] Speaker 00:
And so I mean, I'm kind of feeling that you're not presenting the kind of qualified immunity issue that we normally require for an interlocutory appeal.

[00:09:45] Speaker 01:
Well, Your Honor, there's a number of cases we've cited where the other circuit courts have actually just looked at the Bivens issue on an interlocutory type appeal without getting to the underlying qualified immunity analysis itself.

[00:09:58] Speaker 01:
Because again, Bivens is a threshold to the qualified immunity argument.

[00:10:02] Speaker 01:
If there is no Bivens action, the court doesn't have to waste its time in analyzing the qualified immunity below.

[00:10:10] Speaker 01:
And that's what we've argued here.

[00:10:17] Speaker 01:
Going back to Bivens, obviously here, the other issue that Ebert brought out, of course, is there's only one question for this court to ask itself now is,

[00:10:28] Speaker 01:
Basically, is it in a better position as opposed to Congress to determine remedies here?

[00:10:33] Speaker 01:
And I would submit, absolutely not.

[00:10:37] Speaker 01:
The Supreme Court has declined creating excessive force Bivens remedies.

[00:10:43] Speaker 01:
And that's what the plaintiffs are trying to create here.

[00:10:46] Speaker 01:
This court should not extend that or create an excessive force Bivens claim here whatsoever either.

[00:10:52] Speaker 01:
The other issue here obviously is that

[00:10:56] Speaker 01:
You know, we have a situation, and this is similar to Hernandez versus Mesa, where the Supreme Court declined to create an excessive force dividends action because they said this has to do with national security.

[00:11:08] Speaker 01:
Well, here we're talking about a little bit different national security, but we're talking about federal prisons and a mock training exercise.

[00:11:16] Speaker 01:
And I think Congress is in a much better position to determine how to handle when mock training exercises go awry as opposed to the judiciary.

[00:11:26] Speaker 01:
So that would then hesitate against, again, expanding Bivens whatsoever here.

[00:11:31] Speaker 01:
Then you look at the alternative remedial structures that Ebert says we must look at as well.

[00:11:36] Speaker 01:
We know that the Office of Inspector General is investigating this matter.

[00:11:40] Speaker 01:
I don't think it's still issued a report in it.

[00:11:43] Speaker 01:
But several circuit courts have indicated that is a sufficient remedial.

[00:11:47] Speaker 00:
Well, but those investigations don't give.

[00:11:49] Speaker 00:
I mean, a right to do an investigation doesn't give.

[00:11:54] Speaker 00:
relief to a individual who claims to have been injured in the process.

[00:12:00] Speaker 00:
I'm not quarreling that there might indeed be adequate remedies anyhow, but I don't find those adequate remedies in the grounds you've just asserted that there is a right to investigate.

[00:12:13] Speaker 01:
Your Honor, Bivens does not require any type of remedy to a claim such as monetary relief whatsoever.

[00:12:20] Speaker 01:
The whole point of Bivens is to deter

[00:12:23] Speaker 01:
future constitutional violations.

[00:12:26] Speaker 01:
And thus, them or the OIG investigating this matter, making recommendations to the prison system, prison officials about how to better their training exercises would be a sufficient remedy here.

[00:12:39] Speaker 01:
And again, a number of circuit courts have looked at that very issue and said, yes, this is a sufficient remedy here under Bivens that hesitates against expanding a Bivens action.

[00:12:51] Speaker 01:
Further, the plaintiffs have Federal Court Claims Act remedy available to them.

[00:12:57] Speaker 01:
It's my understanding that several of them have pursued that remedy.

[00:13:02] Speaker 01:
And so again, there are remedies here for them to pursue.

[00:13:05] Speaker 01:
All of these things should hesitate this panel or this court, rather, from expanding Bivens and creating a new Fourth Amendment excessive force claim here.

[00:13:19] Speaker 01:
So unless the panel has any more questions

[00:13:25] Speaker 01:
No, no.

[00:13:27] Speaker ?:
Thank you.

[00:13:45] Speaker 04:
Good morning again, Your Honors.

[00:13:46] Speaker 04:
Andrew Bergman, representing the plaintiff of Pellee's, Jose Arroyo, Heather Boehm, Sam Cordo, and Amber Miller.

[00:13:55] Speaker 04:
Your honor, this court does not have appellate jurisdiction in this case.

[00:14:01] Speaker 04:
And I think the admission that they're not raising qualified immunity ends that question.

[00:14:09] Speaker 04:
There is no authority that they can independently use the collateral order doctrine to take an interlocutory appeal of the Bivens issue in isolation.

[00:14:25] Speaker 02:
So let's assume that that makes sense.

[00:14:29] Speaker 02:
I have a different question for you.

[00:14:30] Speaker 02:
If you look at the district court's order, the first part of it states that she says the district court is the divestative jurisdiction.

[00:14:39] Speaker 02:
Is that correct?

[00:14:40] Speaker 04:
That's right, Your Honor.

[00:14:41] Speaker 02:
Why was the district court divestative jurisdiction in this case over when your friend on the other side is not part of the West Fall Appeals at all?

[00:14:52] Speaker 04:
The district court determined

[00:14:54] Speaker 04:
that she lacked jurisdiction over

[00:14:57] Speaker 04:
all of the defendant's motions to dismiss, which raise similar issues to one another, and that she lacked jurisdiction because the issues in those motions to dismiss were close enough or intertwined with the issues in the Westfall appeal that were being appealed to this court and that the court lost jurisdiction for that reason.

[00:15:20] Speaker 02:
So is your understanding of the district court's order then that she lacked jurisdiction to consider?

[00:15:25] Speaker 02:
the motions or that she made an administrative decision not to?

[00:15:29] Speaker 04:
I think it's both.

[00:15:31] Speaker 04:
So the district court believed that she didn't have jurisdiction to proceed with these motions.

[00:15:38] Speaker 04:
And what she did was entered an administrative order that was basically like a docket clearance, like a routine clearing these off the docket while the cases stayed.

[00:15:50] Speaker 04:
And then they can be refiled.

[00:15:52] Speaker 00:
once they're appealed.

[00:15:53] Speaker 00:
And she did it without prejudice.

[00:15:56] Speaker 00:
And I thought that it was pretty clear that she was clearing the docket, that she was saying, we've got this other matter up the 10th Circuit.

[00:16:04] Speaker 00:
I'm going to clear everything off so that there's no legal impediments to any of you people while we're waiting.

[00:16:10] Speaker 00:
And I thought it was very clear that it was an administrative decision she made.

[00:16:15] Speaker 04:
I think that's right, Your Honor.

[00:16:18] Speaker 04:
She also believed that she didn't have jurisdiction, but jurisdiction to grant the motions to dismiss or to issue rulings on those.

[00:16:27] Speaker 04:
We would say that her ruling was administrative in nature, and it was something that flowed from her determination that she didn't have jurisdiction to consider those motions.

[00:16:37] Speaker 04:
So she wasn't issuing a ruling in that administrative order for which she had to have jurisdiction in order to do that, would be our view of that.

[00:16:48] Speaker 02:
But what I think is... I thought that she did have jurisdiction over Mr. Myers because he has nothing to do with the Westfall appeals.

[00:16:58] Speaker 02:
The claims against him that would implicate the Westfall Act were dismissed.

[00:17:04] Speaker 02:
So she may not have had jurisdiction otherwise, but she did as to Mr. Myers and then made a decision that is reviewable, but is an administrative decision to wait and dismiss without prejudice.

[00:17:17] Speaker 04:
I think the district court thought that she didn't have jurisdiction over any of the defendant's motions to dismiss, and that was why she was staying the case generally.

[00:17:27] Speaker 04:
But the determination there was based on her finding that the issues in the motions were raised by all the defendants, including Myers and the others, which are similar.

[00:17:40] Speaker 04:
This included the Bivens issue.

[00:17:42] Speaker 04:
This included qualified immunity.

[00:17:43] Speaker 04:
This included 12b6 arguments about whether

[00:17:46] Speaker 04:
They had stated a claim, things along those lines.

[00:17:50] Speaker 04:
And the district court thought that those issues were just sufficiently intertwined with the questions that were being appealed in the Westfall decision.

[00:17:59] Speaker 03:
Well, technically, if the district court was correct that the filing of the notice of appeal had jurisdictional significance and divested her of the court of control over those aspects concerned with the appeal,

[00:18:14] Speaker 03:
She didn't have the ability to enter this order on the motion to dismiss.

[00:18:20] Speaker 02:
I think you need her to have jurisdiction over Mr. Minos.

[00:18:22] Speaker 03:
No, I think you need her to.

[00:18:23] Speaker 03:
If you want us to consider the administrative dismissal, she had to have jurisdiction to enter it.

[00:18:34] Speaker 04:
We would say that the administrative order was not

[00:18:38] Speaker 04:
a ruling on the motion to dismiss.

[00:18:40] Speaker 04:
It was just clearing of the docket.

[00:18:43] Speaker 03:
But even- She certainly did deny the motions and said without prejudice to being refiled.

[00:18:53] Speaker 04:
That's correct.

[00:18:55] Speaker 04:
I would say that whether the court had jurisdiction or not with respect to Mr. Meyer's motion,

[00:19:03] Speaker 04:
I don't think it would control the question as to whether this court has jurisdiction to hear the appeal.

[00:19:11] Speaker 04:
Even if this court thinks that there was jurisdiction to issue the order denying the motion to dismiss, it still wouldn't meet the requirements under Cohen for taking a collateral order appeal.

[00:19:30] Speaker 04:
It's certainly not

[00:19:33] Speaker 04:
a conclusive ruling.

[00:19:34] Speaker 04:
It doesn't issue any ruling on a pure issue of law.

[00:19:37] Speaker 04:
It's an administrative ruling.

[00:19:39] Speaker 02:
Could you say more about why you mentioned earlier that the appellant's failure to argue qualified immunity on appeal is fatal?

[00:19:46] Speaker 02:
Could you say more about that?

[00:19:48] Speaker 02:
Sure.

[00:19:49] Speaker 04:
So qualified immunity can, in some circumstances, be appealable under the collateral order doctrine.

[00:20:01] Speaker 04:
But the issue that they're

[00:20:03] Speaker 04:
actually arguing on appeal, which is the Bivens extension, that has not been held to be independently appealable.

[00:20:12] Speaker 04:
And so without qualified immunity, there's no basis under the collateral order doctrine to consider this appeal.

[00:20:21] Speaker 04:
And in fact, two circuits, the Third Circuit and the Sixth Circuit, have specifically rejected

[00:20:28] Speaker 04:
the notion that you can independently appeal the Bivens extension ruling separate from qualified immunity.

[00:20:35] Speaker 04:
And that's what they're trying to do here.

[00:20:36] Speaker 04:
And if the court were to consider the Bivens issue in isolation in a collateral order appeal, it would be creating a circuit split from those rulings.

[00:20:48] Speaker 03:
So the cases that counsel talked about where he said they did allow

[00:20:58] Speaker 03:
Appeal of the bivis issue without it Without the qualified immunity issue those were probably final orders on a motion to dismiss or a 12b6 motion for failure state of claim rather than Qualified immunity I I think some of the subject to the collateral order exception is what I'm saying right.

[00:21:22] Speaker 04:
I think some of those

[00:21:24] Speaker 04:
decisions would have involved cases, yes, where it was final.

[00:21:28] Speaker 04:
So the case was dismissed, and then both of the issues went up together.

[00:21:32] Speaker 04:
And then the court elected to consider the Bivens issue first, rather than the qualified immunity issue.

[00:21:38] Speaker 04:
Or I think there are, in some instances, where it is an interlocutory appeal under the collateral order doctrine, they're brought up at the same time.

[00:21:49] Speaker 04:
And both issues are appealed.

[00:21:52] Speaker 04:
And so jurisdiction properly attaches because both issues are appealed.

[00:21:56] Speaker 04:
And then I think at that point, if the court wanted, in its discretion, to look at one issue first and the other issue second, it could do that.

[00:22:05] Speaker 04:
But jurisdiction was there because qualified immunity was actually appealed.

[00:22:10] Speaker 04:
And here, it's not appealed.

[00:22:13] Speaker 04:
And frankly, they said,

[00:22:16] Speaker 04:
Myers said in his response to the motion dismissed that they were going to raise qualified immunity and proceeded to not actually do that.

[00:22:24] Speaker 04:
If anything, to the extent qualified immunity is present in this appeal at all, it was waived either by failure to raise it or briefing waived by failure to adequately brief it.

[00:22:38] Speaker 04:
And so what he's asking the court to do is to allow

[00:22:43] Speaker 04:
essentially a bait and switch to get into federal appellate jurisdiction, where if you just say you're going to raise an issue, but then you don't actually do it, you can sort of smuggle in any other issue over which there's no jurisdictional basis.

[00:22:59] Speaker 04:
And we think that is completely unsupported, and the court should not condone that view.

[00:23:07] Speaker 04:
I do want to respond to Mr. Carfelli's point about how Bivens

[00:23:12] Speaker 04:
is antecedent to qualified immunity.

[00:23:16] Speaker 04:
I think that's just inaccurate.

[00:23:18] Speaker 04:
This was not argued in their briefs.

[00:23:21] Speaker 04:
And this is, I think, the first time they've made this point.

[00:23:25] Speaker 04:
But it's also substantively incorrect.

[00:23:28] Speaker 04:
These are two different things.

[00:23:30] Speaker 04:
Qualified immunity is a right to not stand trial, to not have discovery.

[00:23:38] Speaker 04:
Bivens is a remedy.

[00:23:40] Speaker 04:
And whether a Bivens extension

[00:23:42] Speaker 04:
should be allowed is a question that the district court determines in the context of deciding whether there should be a remedy.

[00:23:48] Speaker 04:
There's no right afforded to the defendant with respect to the Bivens issue.

[00:23:56] Speaker 04:
It's not antecedent.

[00:23:57] Speaker 04:
The reason qualified immunity is appealable under the collateral order adoption is because

[00:24:03] Speaker 04:
of the right that the defendant has to not stand trial.

[00:24:07] Speaker 04:
Bivens is not the same question, and so there is no similar reasoning for allowing consideration of that issue before a final judgment.

[00:24:20] Speaker 04:
I'd also like to address Judge Abel's point about the adequacy of the remedy for purposes of Bivens and whether

[00:24:33] Speaker 04:
an investigation is an adequate remedy.

[00:24:35] Speaker 04:
I think that actually gets to the point as to why this shouldn't be appealable at this time in the case.

[00:24:45] Speaker 04:
It's not clear whether an investigation is an adequate remedy, and that's something on which

[00:24:52] Speaker 04:
There should be trial court proceedings.

[00:24:54] Speaker 04:
There could be discovery.

[00:24:55] Speaker 04:
There could be findings by the trial court and a determination on that issue.

[00:25:00] Speaker 00:
Although he does advance that there are other private remedies out there.

[00:25:06] Speaker 00:
In addition, the particular first argument he made, which is the one you're addressing, I obviously think is sympathetic with your position.

[00:25:16] Speaker 00:
But he does argue other remedies, I think, that are available.

[00:25:21] Speaker 04:
That's correct.

[00:25:22] Speaker 04:
And I think we briefed the issue.

[00:25:25] Speaker 04:
We would disagree that the other remedies would be considered adequate or even applicable to these types of claims.

[00:25:32] Speaker 04:
When we're looking at adequacy of remedies, the question from the Supreme Court, I think this is in Egbert, this is in Ziegler, is whether it's deterring unconstitutional conduct by the defendants.

[00:25:50] Speaker 04:
Like the statutes that they're citing, for example, wouldn't even apply in this situation.

[00:25:55] Speaker 04:
So they wouldn't be a deterrent.

[00:25:57] Speaker 00:
So one of his arguments of a remedy was under the Federal Tort Claims Act.

[00:26:00] Speaker 00:
Apply your statement that you just made to that alternative.

[00:26:05] Speaker 00:
Why is that not applicable?

[00:26:07] Speaker 04:
Sure.

[00:26:08] Speaker 04:
So we would say that the Federal Tort Claims Act would not deter unconstitutional conduct by these defendants, because that would apply

[00:26:17] Speaker 04:
only in the context of claims that are brought against the United States itself.

[00:26:21] Speaker 04:
It has nothing to do with the individual.

[00:26:23] Speaker 00:
That's the answer I was hoping for.

[00:26:25] Speaker 00:
Right.

[00:26:26] Speaker 04:
I think that's the last point that I had prepared.

[00:26:31] Speaker 04:
Unless the court has other questions, I'll conclude here.

[00:26:35] Speaker 04:
Thank you.

[00:26:35] Speaker 04:
Thank you.

[00:26:44] Speaker 01:
Very briefly.

[00:26:45] Speaker 01:
Mr. Bergman made the claim that Bivens was not part of qualified immunity, and this court had no jurisdiction to hear it.

[00:26:55] Speaker 01:
In our brief, we've cited a number of cases, a number of circuits, including one from the 10th Circuit, who has indeed found that it can look at Bivens as an initial part of his decision on qualified immunity as an interlocutory appeal.

[00:27:10] Speaker 01:
That's the case of big cats of Serenity Springs versus Rhodes.

[00:27:15] Speaker 01:
There they found they had jurisdiction to consider the availability of a Bivens cause of action in an introductory appeal from a denial of qualified immunity.

[00:27:27] Speaker 00:
I'm sure you had that in your briefs.

[00:27:29] Speaker 00:
Just give me the site, would you?

[00:27:31] Speaker 01:
Yes, sir.

[00:27:32] Speaker 01:
It is 843 F3, 853 10th Cirque, 2016.

[00:27:37] Speaker 01:
Thank you.

[00:27:41] Speaker 01:
Further, the Ninth Circuit has done similarly in, and I don't know how to pronounce this.

[00:27:45] Speaker 00:
I was just interested in big cats.

[00:27:47] Speaker 00:
Don't worry about anything else.

[00:27:48] Speaker 01:
OK.

[00:27:49] Speaker 01:
Well, all I would say is in our brief on page 5, our opening brief, we have set forth every circuit, including the seventh, third, ninth, and fifth who've all looked at this issue and concluded we can look at the Bivens issue as a threshold issue in looking at it on an interlocutory appeal from qualified immunity.

[00:28:12] Speaker 01:
Then just briefly, going back to the remedy issue, again, a number of circuit courts have found that these types of administrative investigations are a sufficient remedy under Bivens.

[00:28:25] Speaker 01:
Even Ebert, the Supreme Court, found there where they were investigating that incident was sufficient.

[00:28:35] Speaker 01:
Mayhav versus Mueller, the fourth circuit, again found that complaints to the officer and inspector general

[00:28:41] Speaker 01:
of the Bureau of Land Management was appropriate remedial remedy under Bivens.

[00:28:46] Speaker 01:
So again, it doesn't matter whether all the remedies are available to the plaintiffs under Bivens.

[00:28:51] Speaker 01:
It's just sufficient if there is one.

[00:28:53] Speaker 01:
And again, here we know it's undisputed that the Office of the Investigative General isn't looking into this case.

[00:29:01] Speaker 03:
Thank you, counsel.

[00:29:03] Speaker 01:
I guess just to conclude, I would ask that this court find as a matter of law that there is no cognitive Bivens action here and direct the court to enter judgment in favor of Mr. Myers below and dismissed claims against him.

[00:29:14] Speaker 03:
Thank you very much.

[00:29:15] Speaker 03:
Thanks to both counsel for your helpful arguments.

[00:29:17] Speaker 03:
The case will be submitted and counsel are excused.