[00:00:00] Speaker 03:
We'll call our first case, Arroyo v. Privet, case number 22, 1307.

[00:00:03] Speaker 03:
Ms.

[00:00:03] Speaker 03:
Martin, it's my understanding you want to split time?

[00:00:10] Speaker 02:
Excuse me.

[00:00:11] Speaker 03:
Split time today or?

[00:00:13] Speaker 02:
Yes, Your Honor.

[00:00:13] Speaker 02:
We will be, Mr. Abramson and I will be splitting time.

[00:00:16] Speaker 02:
I will also be reserving two minutes for rebuttal.

[00:00:19] Speaker 03:
Okay.

[00:00:20] Speaker 03:
Just understand that's at your own risk because we don't keep track of it for you.

[00:00:24] Speaker 02:
Yes, Your Honor, of course.

[00:00:26] Speaker 03:
May not be at a place for you to sit down, so you'll just have to work that out.

[00:00:30] Speaker 02:
Yes, Your Honor.

[00:00:31] Speaker 03:
Thank you.

[00:00:31] Speaker 03:
Proceed.

[00:00:34] Speaker 02:
Good morning.

[00:00:35] Speaker 02:
You may please the court.

[00:00:36] Speaker 02:
My name is Kelsey Martin, and I represent Alex Hall, Josh Moore, and Andrew Privet in this consolidated appeal.

[00:00:45] Speaker 02:
To my right, Jonathan Abramson represents Chad Weiss, Timothy Holcomb, and Dustin Ross.

[00:00:53] Speaker 02:
We will be splitting argument in this matter.

[00:00:56] Speaker 02:
I will be handling the scope of employment analysis in our briefing

[00:01:00] Speaker 02:
And Mr. Abramson will be handling the evidentiary issues raised in our opening brief.

[00:01:07] Speaker 02:
I will also be reserving two minutes for rebuttal.

[00:01:11] Speaker 02:
Today, we respectfully request that this court overturn the district court's striking of the Westfall certification as to appellants and find as a matter of law that the United States properly substituted itself

[00:01:26] Speaker 02:
for the defendants.

[00:01:27] Speaker 04:
What should we be thinking about the fact that the United States hasn't appealed?

[00:01:33] Speaker 02:
So that is not a dispositive issue in this case.

[00:01:37] Speaker 02:
Under Hockenberry, private counsel for appellants also has the legal standing to appeal this.

[00:01:45] Speaker 02:
The United States, as my understanding discussed, and declined to do so.

[00:01:50] Speaker 02:
I was not privy to those conversations amongst the United States and its counsel.

[00:01:56] Speaker 02:
As appellants do have private counsel, we were ready to step in and take it.

[00:02:02] Speaker 02:
I can only speculate as to why the United States did not step in.

[00:02:05] Speaker 02:
But of course, that is not a positive determination.

[00:02:09] Speaker 05:
Thank you.

[00:02:09] Speaker 05:
But the United States never took a position or stated an opinion on the merits of your appeal.

[00:02:16] Speaker 05:
I think that's correct, isn't it?

[00:02:21] Speaker 02:
They have not stated anything related to our appeal.

[00:02:24] Speaker 02:
But of course, they did step in.

[00:02:26] Speaker 02:
Certify under the Westwall certification that are that the appellants were acting within the scope of their employment Which was you know since overturned by the district court, but since the proceedings the decision to appeal that they didn't express any public opinion about that about Why they didn't?

[00:02:45] Speaker 03:
Join you Not any that I'm aware of your honor Council before you you begin I understand your

[00:02:54] Speaker 03:
trying to limit yourself to the scope of employment issues.

[00:02:57] Speaker 03:
I have some concerns about how this played out in the district court where there was no evidentiary hearing, but the district court made findings of fact on credibility and controversial factual issues, which I believe is your argument that there should have been an evidentiary hearing.

[00:03:14] Speaker 03:
But doesn't that argument really precede your argument if we agree with you that

[00:03:22] Speaker 03:
that there should have been an evidentiary hearing, and you can't resolve controversial issues of fact without one?

[00:03:30] Speaker 03:
Doesn't it come before your scope of employment argument?

[00:03:33] Speaker 02:
So Your Honor, my argument related to scope of employment is really going to focus on particularly Hockenberry and distinguishing this matter from Hockenberry, where we believe that this matter, even with the evidentiary issues with Mr. Abramson's other half of the argument,

[00:03:52] Speaker 02:
still could have been decided as a matter of law based on the scope of employment standard in Colorado and corresponding case law in Colorado.

[00:04:00] Speaker 04:
So your position, maybe this feeds into Judge Moritz's question, is if your position proceeds from our accepting the district court's factual findings.

[00:04:13] Speaker 02:
That's correct, Your Honor.

[00:04:13] Speaker 04:
And so you have not challenged those factual findings for clear error.

[00:04:16] Speaker 04:
We are proceeding based on the court's findings, and you're making an argument as a matter of law.

[00:04:21] Speaker 02:
That is correct, Your Honor.

[00:04:22] Speaker 02:
For purposes of this appeal, we are proceeding with the findings, in fact, the district court made.

[00:04:28] Speaker 02:
And even notwithstanding those findings, in fact, as a matter of law, the district court still could have decided that they were acting within the scope of their employment.

[00:04:37] Speaker 02:
So the scope of employment standard in Colorado was set out in Moses.

[00:04:42] Speaker 02:
And subsequent cases have held the same two-pronged standard for evaluating whether an employee was acting within the scope of their employment.

[00:04:50] Speaker 02:
That turns on the first prong, whether the employee was doing work that he was assigned by his employer, whether that work or whether that work was necessarily incidental to completing the work assigned by his employer or whether it was in the course of business assigned by his employer.

[00:05:09] Speaker 02:
The second prong of the scope of employment set out in footnote 27 of Moses and upheld consistently by subsequent case law.

[00:05:19] Speaker 02:
relates to the intent portion, whether the employee was acting in furtherance of his employer's business interests.

[00:05:28] Speaker 02:
And here, notwithstanding the district court's findings of fact, I think the appellants were squarely acting within that scope of employment.

[00:05:37] Speaker 02:
It is an undisclosed acting within that scope of employment set out by the BOP.

[00:05:43] Speaker 04:
Which prong of Moses are we in right now?

[00:05:46] Speaker 04:
with your argument?

[00:05:47] Speaker 04:
Are you talking about the first component of it, or are you talking about intent or both?

[00:05:52] Speaker 02:
I'll be talking about them contemporaneously, but I'll start out with the first problem.

[00:05:59] Speaker 02:
It is an undisputed fact that the BOP, through the certification process, mandated that appellants clear out the room, go to the administrative building, conduct a secondary search to make sure there aren't any threats,

[00:06:14] Speaker 02:
and physically clear the room out and empty it.

[00:06:17] Speaker 02:
That is an undisputed fact on the record found by the district court.

[00:06:20] Speaker 05:
But wasn't there a decision at some point that they were told that the exercise had concluded?

[00:06:30] Speaker 02:
The district court did not find whether appellants actually heard that.

[00:06:37] Speaker 02:
Whether they were aware that appellees were saying out of role, that is still

[00:06:43] Speaker 02:
And the district court did not make any findings as to that.

[00:06:47] Speaker 02:
The district court did make findings that appellees did say that, but it is unclear whether they heard it.

[00:06:54] Speaker 03:
And I think even regardless of that... So are you suggesting that's not material to the decision?

[00:07:02] Speaker 02:
I think even notwithstanding whether appellants heard the out of role or what appellees were saying, what

[00:07:12] Speaker 02:
What is important is their intent.

[00:07:15] Speaker 05:
Well, but they could have any intent at all.

[00:07:18] Speaker 05:
But if in fact they were told out of role, doesn't that stop this from then being part of an official activity at that point?

[00:07:32] Speaker 02:
There's some facts that appellants perhaps thought this was an emergency.

[00:07:39] Speaker 02:
or they weren't sure what was going on.

[00:07:41] Speaker 05:
But if they thought there was an emergency with hostages, then wasn't their employment requirement that they call in the specialized negotiation team?

[00:07:51] Speaker 02:
In these situations, which is why this is a 25-minute period in time where appellants went in to clear this room, were immediately faced with, they were supposed to breach this room.

[00:08:06] Speaker 02:
and were immediately faced with opposition from appellees.

[00:08:09] Speaker 02:
They did not know what was going on.

[00:08:12] Speaker 02:
Some thought this might be an emergency.

[00:08:15] Speaker 02:
Some thought this is still part of the mock training exercise.

[00:08:19] Speaker 03:
The emergency part was, if you're accepting the district court's findings of fact, and you seem to be saying you are, made without an evidentiary hearing, she rejected that argument.

[00:08:31] Speaker 03:
I believe the district judge said, I don't believe that.

[00:08:35] Speaker 03:
that they could have believed in this situation that there was an emergency happening inside that room.

[00:08:42] Speaker 03:
So if you're accepting that, you've got to accept those facts.

[00:08:46] Speaker 02:
That is correct, Your Honor.

[00:08:47] Speaker 02:
The district court did make that finding.

[00:08:50] Speaker 02:
That is disputed by here.

[00:08:52] Speaker 03:
Well, you just said you weren't disputing the facts the district court found.

[00:08:56] Speaker 03:
I'm a little confused about that argument.

[00:08:58] Speaker 02:
I will continue with the district court's findings.

[00:09:01] Speaker 02:
I don't believe that it is

[00:09:03] Speaker 02:
that it is a material difference, because Appellant's intent in breaching this room and clearing it out was in furtherance of the POP's interest.

[00:09:14] Speaker 02:
Can I ask you a question?

[00:09:15] Speaker 04:
One of the themes that emerged in your brief it seemed was

[00:09:18] Speaker 04:
You're finding fault with the district court lumping everyone together, lumping all your clients together and not parsing out their individual actions.

[00:09:25] Speaker 04:
So are you doing that now too, in the sense that your arguments apply equally to all of your clients?

[00:09:31] Speaker 04:
Or are there certain arguments that may apply differently to some of your clients?

[00:09:35] Speaker 02:
So it is our position that all appellants were acting within the scope of their employment.

[00:09:42] Speaker 02:
The district court, of course, disagreed with that.

[00:09:45] Speaker 02:
And that is where the split came up.

[00:09:48] Speaker 02:
There were some that I think unequivocally, including Andrew Privet, were, you know, he was just watching.

[00:09:56] Speaker 02:
He was there to supervise.

[00:09:57] Speaker 02:
He was not participating.

[00:09:58] Speaker 02:
And I think, you know, specific appellants like that, you know, needed some kind of individualized determination.

[00:10:06] Speaker 02:
And an individualized determination is really required when you're doing an analysis related to Westphal or qualified immunity where there is that intent portion.

[00:10:18] Speaker 02:
So where that intent portion lies, it can sit differently with any appellate.

[00:10:25] Speaker 03:
But I think this case here... Can you pop back to what you said just before, which was that there was no motivation here to do anything other than what was within the scope of their employment, which is finish out this exercise, this training exercise.

[00:10:41] Speaker 03:
And yet, once again, you've got district court findings saying,

[00:10:46] Speaker 03:
I think the motivation was out of frustration, basically anger.

[00:10:50] Speaker 03:
They were frustrated that these individuals weren't coming out of the business office, weren't clearing out.

[00:10:56] Speaker 03:
They got angry and they went in with the pepper spray and the simunition.

[00:11:03] Speaker 03:
That's what the district court found.

[00:11:04] Speaker 03:
Once again, I think you're kind of stuck with those findings if you're going to accept them.

[00:11:10] Speaker 02:
So I diverge a bit on that.

[00:11:14] Speaker 02:
is my understanding that the district court, that was her, the court's analysis of the specific facts.

[00:11:23] Speaker 02:
And under Hockenberry, this is reviewed de novo.

[00:11:25] Speaker 02:
And I think that that was a legal conclusion or a finding related to the certification of employment.

[00:11:34] Speaker 04:
But her conclusion that there was, on motivation, was based on a factual finding that she made that you didn't challenge.

[00:11:41] Speaker 04:
Is that fair to say?

[00:11:43] Speaker 02:
I'm sorry, could you repeat your question?

[00:11:44] Speaker 04:
The district court's conclusion that the motivation here was frustration, not in service of BOP policy or BOP, that the intent was different from complying with what BOP wanted, that it was motivated by their frustration or anger or whatever.

[00:12:00] Speaker 04:
That's a factual finding that was not challenged as clearly erroneous.

[00:12:04] Speaker 04:
Is that correct?

[00:12:06] Speaker 02:
Correct.

[00:12:07] Speaker 02:
I believe even if appellants were acting out of frustration, that does not

[00:12:12] Speaker 02:
You can still be acting within the scope of your employment and be frustrated when you're performing your job duties.

[00:12:18] Speaker 02:
I think what is... That may be true.

[00:12:19] Speaker 03:
That's not what the district court found.

[00:12:22] Speaker 03:
And that's a problem.

[00:12:27] Speaker 02:
I am going to distinguish this from Hockenberry just very briefly before I give Mr. Abramson a chance to come up.

[00:12:34] Speaker 02:
And Hockenberry, the Westfall certification, once

[00:12:39] Speaker 02:
It is certified by the United States that the United States is the proper defendant here that is a prima facie finding that appellants were acting within the scope of their employment.

[00:12:49] Speaker 02:
And after that, it is the burden of appellees to prove through specific factual findings that that is not the case and that appellants were acting through some other motivation or outside the scope of employment.

[00:13:04] Speaker 02:
And that did not happen here.

[00:13:05] Speaker 03:
No, but what we said in Hockenberry was that

[00:13:10] Speaker 03:
A district court can proceed as though it's a summary judgment type motion.

[00:13:15] Speaker 03:
You can submit your briefs and your affidavits and your deposition transcripts.

[00:13:20] Speaker 03:
And if the district court can, it can resolve the issue based on undisputed facts.

[00:13:30] Speaker 03:
But if there are disputed material facts, we said in Hockenberry, and there was one in that case, then the district court must conduct an evidentiary hearing.

[00:13:39] Speaker 03:
resolve those material disputed facts.

[00:13:43] Speaker 03:
That didn't happen here.

[00:13:46] Speaker 03:
But once that happens, then we would review the district court's findings after the evidentiary hearing based on clear error, the factual findings.

[00:13:56] Speaker 03:
So the whole thing's kind of gotten mixed up here, I would say, because of how the district court proceeded to resolve factual findings and make credibility findings without an evidentiary hearing.

[00:14:10] Speaker 05:
Well, but you didn't object to that process, is that correct?

[00:14:14] Speaker 02:
So counsel for appellants do not participate in the evidentiary hearing that was done by the United States.

[00:14:20] Speaker 02:
And I believe appellees did request an evidentiary hearing that was.

[00:14:25] Speaker 05:
Did or did not?

[00:14:26] Speaker 02:
Did.

[00:14:27] Speaker 02:
It's my understanding that appellees did request an evidentiary hearing that the court felt was not necessary.

[00:14:33] Speaker 02:
But distinguishing from Hockenberry, and I understand Hockenberry was remanded due to the material dispute of fact

[00:14:40] Speaker 02:
It's our position- For an evidentiary hearing.

[00:14:43] Speaker 02:
Yes, Your Honor, of course, for an evidentiary hearing.

[00:14:46] Speaker 02:
And it's our position here that even not withstanding the facts of the district court, appellees have not been able to articulate through specific facts why appellants were acting outside the scope of their employment.

[00:15:01] Speaker 02:
Their argument has been, look at what happened, what other explanation can there be?

[00:15:06] Speaker 02:
other than they were acting out of personal vengeance and personal frustration.

[00:15:11] Speaker 02:
And that is simply not what happened here.

[00:15:14] Speaker 02:
Appellants were ordered to clear this room.

[00:15:17] Speaker 02:
And once that room was cleared, albeit a bit messy, once that room was cleared, the exercise was over and they were helping appellees down from cabinets.

[00:15:26] Speaker 02:
They were escorting appellees out.

[00:15:28] Speaker 02:
And once everyone is out of the room, the mock training exercise is over.

[00:15:32] Speaker 02:
And there was no, if this would have been out of something like personal frustration, there ostensibly would have been continued fighting or combat or something like that following the clearing of the room.

[00:15:45] Speaker 02:
But once the appellant's employer's goals were accomplished, they ceased the mock training exercise.

[00:15:53] Speaker 02:
And I'm out of time, Your Honors.

[00:15:57] Speaker 02:
Thank you.

[00:15:58] Speaker 02:
Thank you for your time.

[00:15:59] Speaker 00:
Good morning and may it please the court.

[00:16:01] Speaker 00:
My name is Andrew Bergman and I represent the plaintiff appellees, Jose Arroyo, Heather Baum, Sam Cordo and Amber Miller.

[00:16:12] Speaker 00:
Your honors, I have two points that I'd like to make.

[00:16:16] Speaker 00:
And the first is that the district court's ruling setting aside the Westfall certification is amply supported by the record.

[00:16:25] Speaker 00:
And the second is that the procedural errors that the appellants are raising do not meet the standard for reversibility in this appeal.

[00:16:34] Speaker 03:
Let's talk, if you don't mind, first about the lack of an evidentiary hearing in a district court that made findings on disputed factual issues and credibility issues, and then based its decision on that.

[00:16:50] Speaker 03:
And I understand the argument that they've waived that because

[00:16:54] Speaker 03:
The counsel agreed when the district court said, well, here's what I'm going to do.

[00:16:59] Speaker 03:
But the way I read the transcript, the district court never said, I'm going to make disputed factual findings, and I'm going to make credibility findings.

[00:17:09] Speaker 03:
She said, I think I have everything I need here on the record, and I'll just go ahead and make my findings, which is what you do if you can make your determination based on undisputed facts.

[00:17:21] Speaker 03:
And counsel said,

[00:17:24] Speaker 03:
defense counsel said, OK, that sounds fine.

[00:17:27] Speaker 03:
And then later on, plaintiff's counsel says, well, I think maybe we need some testimony here after they realize where this judge is going.

[00:17:36] Speaker 03:
And I don't know if that was you, but someone offered three witnesses to testify that they had there.

[00:17:42] Speaker 03:
And the judge said, no, no, we're going on.

[00:17:46] Speaker 03:
And we can overlook, if that was error for the district judge to make,

[00:17:51] Speaker 03:
credibility findings and factual findings on disputed facts, we can overlook that waiver.

[00:18:00] Speaker 03:
And if we do, what would be your response to that?

[00:18:04] Speaker 00:
I would offer a couple of responses.

[00:18:06] Speaker 03:
Why wasn't that error for the district court to disregard the procedures that we've put in place and outlined specifically recently in Hockenberry for this procedure?

[00:18:18] Speaker 00:
I would offer a couple of responses.

[00:18:21] Speaker 00:
And the first is that the hearing that the district court held was adequate.

[00:18:27] Speaker 00:
In cases like Hockenberry, there was an exceedingly limited record.

[00:18:32] Speaker 00:
There hadn't been sufficient discovery yet.

[00:18:35] Speaker 00:
There were only written statements.

[00:18:36] Speaker 00:
What the district court reviewed here were... There was only one issue.

[00:18:40] Speaker 03:
We sent back one issue, which was basically intent, essentially, or the truth of the statement being made by the victim.

[00:18:47] Speaker 03:
We sent it back on that one issue because it was disputed.

[00:18:51] Speaker 03:
and it was material.

[00:18:53] Speaker 03:
And so it couldn't be resolved in summary judgment fashion.

[00:18:57] Speaker 00:
Understood, Your Honor.

[00:18:58] Speaker 00:
And I think this case is a little bit different.

[00:19:01] Speaker 00:
And I think in Hockenberry, the court was focused on that intent requirement under Oklahoma law for determining whether the employee was in the scope of employment.

[00:19:13] Speaker 00:
In this case, we've got this two-part test from Colorado law, which starts with the

[00:19:20] Speaker 00:
question of whether they were doing assigned work or something incidental to assigned work or customary to their work.

[00:19:26] Speaker 00:
It doesn't have anything to do with intent.

[00:19:28] Speaker 00:
And then there's the second requirement about whether what they were doing was in furtherance of the employer's business.

[00:19:34] Speaker 00:
And for that second requirement, you can look at intent.

[00:19:38] Speaker 00:
What the district court did here.

[00:19:39] Speaker 03:
There's some case law that with respect to intentional torts, we can look at the motive of the individual.

[00:19:45] Speaker 03:
And the district court here did that.

[00:19:48] Speaker 03:
She said, I think their motive was no longer to finish out this training exercise.

[00:19:54] Speaker 03:
Their motive was out of frustration with these individuals who wouldn't come out.

[00:19:58] Speaker 03:
So she did look at motive here.

[00:20:02] Speaker 03:
She did look at intent, basically.

[00:20:04] Speaker 00:
Well, that's correct, Your Honor.

[00:20:06] Speaker 00:
But there's two requirements that the appellants had to meet to be in the scope of their employment.

[00:20:12] Speaker 00:
One of them had nothing to do with intent.

[00:20:14] Speaker 00:
The other one was about whether they were acting in furtherance of their employer and what their motive was.

[00:20:19] Speaker 00:
And so the court did look at intent.

[00:20:22] Speaker 00:
Based on the first requirement, which doesn't involve intent, I think we really have largely undisputed findings about what happened.

[00:20:31] Speaker 00:
what their assigned work was, what they were supposed to do.

[00:20:34] Speaker 04:
So do we not need to reach the second part?

[00:20:37] Speaker 00:
I would say the court does not need to reach the second part.

[00:20:41] Speaker 00:
There's two requirements to be in the scope of employment under Colorado law.

[00:20:45] Speaker 00:
If they don't meet one of them, that's enough to uphold the district court's ruling that they're outside the scope of their employment.

[00:20:54] Speaker 00:
But even if the court does want to look at the second requirement and does want to look at intent

[00:21:01] Speaker 00:
I don't think what the district court did here was entirely out of bounds.

[00:21:07] Speaker 00:
The district court did look at complete deposition transcripts and did look at complete written testimony from a number of witnesses.

[00:21:16] Speaker 00:
And the law calls on district judges in a number of instances to make credibility findings and to weigh the persuasiveness of evidence based on written testimony.

[00:21:28] Speaker 00:
There have been.

[00:21:29] Speaker 03:
And what?

[00:21:32] Speaker 03:
I'm not aware of that.

[00:21:34] Speaker 03:
And we specifically said that you treat these Westfall motions as basically summary judgment motions.

[00:21:43] Speaker 03:
And with respect to a summary judgment motion, what the district court does is take each party's statement of facts, based on affidavits, based on depositions, based on discovery, and they don't make findings of fact.

[00:21:54] Speaker 03:
That's exactly what we don't do in a summary judgment motion.

[00:21:58] Speaker 03:
They make determinations as to what facts are material and uncontroverted.

[00:22:04] Speaker 03:
It's the opposite of finding disputed facts.

[00:22:07] Speaker 03:
And what we've said is, when there are controverted material facts in one of these Westfall hearings, you've got to have an evidentiary hearing.

[00:22:17] Speaker 03:
Because the summary judgment standard doesn't allow for that.

[00:22:21] Speaker 03:
And that's not what happened here.

[00:22:24] Speaker 03:
We have a whole lot of facts.

[00:22:27] Speaker 03:
disputed facts that were determined.

[00:22:29] Speaker 03:
So the question really is what I think you've just made it, which is can we disregard every credibility finding, every disputed fact that the district court resolved here, and there were many, and still have enough to determine that the district court was correct in deciding that this was outside the scope of employment?

[00:22:53] Speaker 00:
I think the court can do that.

[00:22:56] Speaker 00:
You know, just based on what appellants are arguing, the thrust of their point about the credibility findings went to their intent.

[00:23:04] Speaker 00:
And that only goes to one of the two requirements for scope of employment.

[00:23:09] Speaker 00:
under Colorado law.

[00:23:10] Speaker 00:
The fact that the district court reached that to provide additional analysis or to otherwise insulate her decision or to give an alternative basis for her ruling doesn't mean that she did it.

[00:23:21] Speaker 03:
That wasn't what the district court did, and she didn't indicate she did that.

[00:23:24] Speaker 03:
You can't say this was an alternative basis because she relied heavily on her findings of fact.

[00:23:30] Speaker 00:
That's correct, Your Honor.

[00:23:32] Speaker 00:
The district court didn't say that it was an alternative basis.

[00:23:35] Speaker 00:
My point is that there are two requirements, and the district court looked at both of them.

[00:23:40] Speaker 00:
And if they don't meet one of the two requirements, that's enough for affirming the decision that they weren't within the scope of employment.

[00:23:46] Speaker 04:
What is the state of our law on evidentiary hearings after Fowler?

[00:23:50] Speaker 04:
And Fowler seems to say, you only need an evidentiary hearing if it's necessary.

[00:23:55] Speaker 04:
Hockenberry seems to suggest that if there are genuine disputes of material fact,

[00:23:59] Speaker 04:
district court must hold a hearing.

[00:24:01] Speaker 04:
So could you speak to what your understanding of the applicable standard is for evidentiary hearings in this context?

[00:24:09] Speaker 00:
So my understanding is that when the motion to set aside the certification is made, the district court looks at whether there can be a determination

[00:24:26] Speaker 00:
based on undisputed facts similar to a summary judgment motion.

[00:24:29] Speaker 00:
However, in Hockenberry, the court said that you have to look at the evidence in the light most favorable to the party opposing the Westfall certification.

[00:24:38] Speaker 00:
And so it is flipped a little bit.

[00:24:40] Speaker 00:
Ordinarily, it would be against the non-movement.

[00:24:43] Speaker 00:
But here, the evidence is viewed in favor of the plaintiffs who are the movements.

[00:24:50] Speaker 00:
And so if, based on that standard, the court thinks there's disputed facts,

[00:24:55] Speaker 00:
or the court thinks that there needs to be evidentiary hearing, the court can do that.

[00:25:01] Speaker 04:
Is it that there need to be disputed facts, or is it that the court, if the court feels that based on the evidence already developed, the court is in a position to resolve the disputes, is a hearing still required?

[00:25:15] Speaker 00:
I would say that a hearing would not still be required if the court is in a position to resolve the disputes.

[00:25:22] Speaker 00:
But I would also say that the type of hearing

[00:25:25] Speaker 00:
And the particulars of how that hearing has to be conducted are not spelled out in Hockenberry.

[00:25:29] Speaker 04:
But you agree this wasn't an evidentiary hearing?

[00:25:33] Speaker 00:
I agree that it wasn't an evidentiary hearing in the sense that there was no live witnesses presented.

[00:25:38] Speaker 00:
I do agree, yes.

[00:25:39] Speaker 00:
But the district court did consider testimony that was in writing, testimony that was based on depositions.

[00:25:46] Speaker 00:
And we think that that's something that district courts do all the time.

[00:25:49] Speaker 00:
There have been entire trials conducted

[00:25:54] Speaker 00:
District judges have to determine whether a witness who testified by deposition was presented at trial by deposition was credible and sometimes even relative to other witnesses who testified by deposition.

[00:26:06] Speaker 00:
So we think the district court was within its bounds to make those determinations based on those facts.

[00:26:11] Speaker 00:
But yes, we agree there wasn't an evidentiary hearing with live witnesses, of course.

[00:26:16] Speaker 04:
Under the standards that apply in this sort of quasi-summary judgment context, does your friend on the other side have an obligation to object on clear error grounds on appeal in order to challenge the factual findings?

[00:26:29] Speaker 04:
In other words, if there was no clear error objection here, how should we be thinking about that?

[00:26:35] Speaker 00:
I would say that the appellants do have the right

[00:26:38] Speaker 00:
the responsibility to object on the basis of clear error if there's factual findings that are made.

[00:26:44] Speaker 00:
And I think the law in the 10th Circuit's pretty strict.

[00:26:47] Speaker 00:
You have to do it in the opening brief.

[00:26:49] Speaker 00:
And I think we've cited cases to that effect.

[00:26:52] Speaker 00:
The standard for challenging factual findings is clear error.

[00:26:56] Speaker 00:
And I think they agree with that.

[00:26:59] Speaker 00:
They don't agree with it until their reply brief, which is too late to make that challenge.

[00:27:05] Speaker 00:
But I don't think they're disputing that the standard is clear error.

[00:27:07] Speaker 00:
And I don't think they were disputing that they had to raise it in their opening brief either, that they didn't do that.

[00:27:13] Speaker 00:
But I think it was also important.

[00:27:14] Speaker 04:
I guess my question is, I'm sorry, just to clarify, I think my question is, if the district court made an error as a matter of law in failing to hold an evidentiary hearing, did the appellant have an obligation to object to factual findings on clear error grounds?

[00:27:28] Speaker 00:
If the district court made an error as a matter of law?

[00:27:31] Speaker 00:
Yes.

[00:27:33] Speaker 00:
I think they would only have to object to clear error if,

[00:27:38] Speaker 00:
the district court's ruling was, as a matter of law, was based on some factual finding that they don't agree with.

[00:27:46] Speaker 00:
If they want to accept the factual findings as they are, and the legal conclusions that draw from those factual findings, they can do that.

[00:27:54] Speaker 00:
They don't have to object that it was clear error, because they're not objecting to it.

[00:27:58] Speaker 00:
But yes, if they're disputing the factual findings, then yes, I think they would have to object, or they'd have to raise clear error.

[00:28:07] Speaker 03:
Is there one fact that might perhaps be uncontroverted that could resolve this entire litigation?

[00:28:18] Speaker 03:
And that is the fact that the officers used the pepper spray despite twice on these individuals pulled up in this business office, twice without

[00:28:34] Speaker 03:
without actually requesting permission and not receiving it, being told not to do this.

[00:28:43] Speaker 03:
Why wouldn't that be resolved the whole matter?

[00:28:48] Speaker 03:
I didn't see that you argued that.

[00:28:50] Speaker 00:
I think it could resolve the whole matter.

[00:28:53] Speaker 03:
Why doesn't that take it outside the scope of their employment?

[00:28:55] Speaker 03:
They were told, no, you do not do this.

[00:28:58] Speaker 03:
They did it.

[00:29:00] Speaker 03:
Now, one person apparently sprayed.

[00:29:03] Speaker 03:
Can we attribute that action, which was contrary to their specific instructions, can we attribute it to all of the defendants?

[00:29:15] Speaker 00:
I think you can, Your Honor.

[00:29:17] Speaker 00:
And I would say, to answer your first point, it is undisputed.

[00:29:21] Speaker 00:
They're not disputing that the spray was used and it was used twice.

[00:29:25] Speaker 00:
They're not disputing that there

[00:29:28] Speaker 00:
not permitted to use it on staff under any circumstances, and they're not disputing that it wasn't even part of the exercise.

[00:29:35] Speaker 00:
They didn't have it with them.

[00:29:36] Speaker 00:
They had to go to another location in the facility to go get it.

[00:29:40] Speaker 00:
It wasn't part of this training procedure at all.

[00:29:45] Speaker 00:
There's no dispute that they had to request permission, that they didn't receive permission, and they did it anyway.

[00:29:50] Speaker 03:
And what are the facts about whether all of them knew that permission was requested?

[00:29:56] Speaker 03:
and denied, specifically denied.

[00:30:00] Speaker 03:
Who knew that?

[00:30:02] Speaker 00:
So it was, I believe it was Moore and Hall that went to go and get the OC spray.

[00:30:08] Speaker 00:
It was Weiss that used the spray.

[00:30:11] Speaker 00:
It was Privet that was supervising, and he went to go get gas masks.

[00:30:16] Speaker 00:
And then it was the other two.

[00:30:18] Speaker 00:
I think it was Ross and or Holcomb was involved in trying to request the permission.

[00:30:24] Speaker 03:
Didn't receive it and that was on a radio, so they would have been able to hear that was their fact-finding that they all heard it I don't know if there was a fact-finding that like each individual person heard it, but it was wouldn't that be important if they were if we think that they disregarded specific instructions not to use the pepper spray wouldn't be important whether all these five defendants are

[00:30:51] Speaker 03:
if they're going to be held to that, that they knew that there had been that instruction?

[00:30:56] Speaker 00:
I'm out of time.

[00:30:58] Speaker 00:
Is it OK if I answer?

[00:30:59] Speaker 03:
That's all right.

[00:30:59] Speaker 03:
Please proceed.

[00:31:00] Speaker 00:
So I think it would be relevant, but I don't think it would be dispositive of that question.

[00:31:06] Speaker 00:
And the reason I say that is because it's BOP policy that is not supposed to be used without direct authorization under any circumstances.

[00:31:16] Speaker 00:
And when we're looking at whether something is their assigned work,

[00:31:19] Speaker 00:
or related to their assigned work, it doesn't matter what they knew, what their intent was.

[00:31:25] Speaker 00:
It matters what they were actually assigned and actually allowed to do under the circumstances.

[00:31:31] Speaker 00:
And so it shouldn't matter just what they happen to have been aware of at the time.

[00:31:37] Speaker 00:
But if no further questions, I'll.

[00:31:42] Speaker 03:
Thank you.

[00:31:43] Speaker 00:
Thank you.

[00:31:44] Speaker 03:
I'll give you another minute if you'd like to rebut.

[00:31:49] Speaker 01:
Good morning, my name is Jonathan Abramson and I represent Appellants Weiss, Ross, and Holcomb.

[00:31:54] Speaker 01:
I just want to address the

[00:31:58] Speaker 01:
evidentiary hearing part of this very quickly and I would ask the court to look at the complexity of this case versus Hockenberry and Fowler and Panetto.

[00:32:13] Speaker 01:
This case needed an evidentiary hearing.

[00:32:17] Speaker 01:
There were massive issues of disputed facts.

[00:32:21] Speaker 01:
This was a very complex event.

[00:32:24] Speaker 05:
But when you

[00:32:27] Speaker 05:
when the court proceeded, I think you said that it was all right, didn't you?

[00:32:33] Speaker 05:
Not you personally.

[00:32:34] Speaker 05:
I don't see how this was raised below or preserved here.

[00:32:43] Speaker 01:
Your Honor, the United States government did the Westfall certification, and then the police filed an objection to it.

[00:32:53] Speaker 01:
We don't see it as we had standing.

[00:32:55] Speaker 01:
We weren't the ones making the Westfall certification as the individual defendants in this case.

[00:33:03] Speaker 01:
And the court never addressed us at the underlying hearing, other than to enter our appearance.

[00:33:11] Speaker 01:
The court didn't ask individual defendants for argument or to address it at all.

[00:33:19] Speaker 01:
And it was appellees who actually

[00:33:21] Speaker 01:
requested the evidentiary hearing and was denied by the court.

[00:33:26] Speaker 05:
So, since none of your group asked for the hearing, I'm having trouble seeing how that is preserved now for us to criticize the court for not having a hearing or even reversing for not having a hearing when the appellee is happy that they didn't have a hearing and your side never asked for one.

[00:33:50] Speaker 01:
Well, when you say my side, it was the United States... Well, the people other than the appellee.

[00:33:54] Speaker 01:
Right.

[00:33:55] Speaker 01:
The United States government did the Westfall certification.

[00:33:58] Speaker 01:
We didn't sign the Westfall certification.

[00:34:00] Speaker 05:
Yeah, but I understand that.

[00:34:02] Speaker 05:
My point is that looking at it from the district court's point of view, district court understandably could assume that he was doing just exactly what the parties wanted.

[00:34:13] Speaker 05:
And even, I mean, I just don't see how that

[00:34:18] Speaker 05:
And then nobody argued clear error here.

[00:34:21] Speaker 05:
So I mean, I'm having a great deal of difficulty deciding how this error was preserved.

[00:34:29] Speaker 01:
Your Honor, I believe under Hockenberry, it puts the onus on the district court that the court shall.

[00:34:37] Speaker 01:
It's not upon request.

[00:34:39] Speaker 05:
Even if that's true, and I'm not sure that that is as absolute as the briefs argued it,

[00:34:46] Speaker 05:
There's all kinds of times when the district court doesn't do things that he or she was ordered shall do.

[00:34:54] Speaker 05:
And yet, if you don't make an objection and preserve it, we can't review it except on a clear error argument.

[00:35:02] Speaker 05:
And that has to be presented to us as a clear error argument.

[00:35:07] Speaker 05:
And neither of those facts occurred here.

[00:35:10] Speaker 01:
Well, again,

[00:35:13] Speaker 01:
The United States government did not object to not having an evidentiary hearing.

[00:35:18] Speaker 01:
I submit that we didn't have standing to bind the United States government on having an evidentiary hearing, yet we're the ones facing, now that the Westfall certification has fallen, it's fundamentally unfair.

[00:35:35] Speaker 01:
We're the ones left to defend these

[00:35:38] Speaker 01:
defendants are left to defend this case.

[00:35:41] Speaker 01:
And the whole purpose of the Westfall certification is not for us to be left defending a case when, as Ms.

[00:35:52] Speaker 01:
Martin argued, that this was within the course and scope of it.

[00:35:55] Speaker 05:
The time to have made that unfairness objection was when it was happening, so that as you consider your interest in your point of view.

[00:36:05] Speaker 05:
And that didn't happen.

[00:36:06] Speaker 05:
And then it wasn't argued by you up here on appeal that that was clear error.

[00:36:10] Speaker 05:
So I mean, I'm just looking at our standard rules of weight.

[00:36:16] Speaker 05:
And then your colleague was very clear that you are accepting the decision, not the decision, but the findings below.

[00:36:29] Speaker 05:
You're accepting the record below.

[00:36:32] Speaker 05:
So I just think that I'm just having a great deal of difficulty deciding why any of this is relevant.

[00:36:39] Speaker 01:
I think we're asking for a de novo review of the SOE, of the scope of employment.

[00:36:50] Speaker 01:
And I believe that that is

[00:36:52] Speaker 01:
And I've gone four minutes, so I thank the court for giving us the extra time.

[00:36:59] Speaker 03:
Thank you.

[00:36:59] Speaker 03:
Thanks to all counsel.

[00:37:01] Speaker 03:
This has been a very helpful argument.

[00:37:04] Speaker 03:
The case will be submitted and counsel are excused.