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"stt_transcript": "Did y'all want a break? I'm sorry I'm not as good, okay? Did you need a break? You may proceed. Is it Mr. Schmutter? Yes, thank you, Chief Judge. Good afternoon and may it please the court. Daniel Schmutter for the plaintiffs. Millions of law-abiding Americans own the switchblade knives that Congress prohibited under the Federal Switchblade Act, the FSA. Knives that are legal to possess under the laws of 45 states. As such, they are typically possessed by law-abiding citizens for lawful purposes. That is, they are in common use. That forecloses the efforts of the United States to defend it broadband on possession, sale, distribution, transportation, and manufacture of these ordinary knives. Knives that differ from other pocket knives only in the single respect that they happen to use a very convenient and useful spring mechanism to open rather than some other means. In fact, many folks could not even tell just by looking at or even holding the knives, whether open or closed, that they are in fact switchblade knives. Notably, the government has wholly abandoned its standing arguments, presumably in recognition of how flawed they are. Well, we've got to talk about it because it's jurisdictional. The district court, reading the district court's opinion, the district court thought there was no standing here at all, but felt that it was bound by our Umphress case, I guess. That was a First Amendment case, and when you're bringing a facial challenge in a First Amendment case, sort of a relaxed injury requirement, a pre-enforcement challenge, does that transfer over to the Second Amendment, and if so, what's your authority for that? Judge, it does transfer over to the Second Amendment, and I don't know that there's specific authority for why Umphress applies to the Second Amendment, but what's important about Umphress No, I'm just saying, why do we relax what is required to show the credible threat of enforcement in a non-First Amendment context? I don't think the court needs to relax the credible threat of enforcement. Well, wait a minute, wait a minute. The Supreme Court's made it clear in lots of precedent that in a facial pre-enforcement challenge, there would be this relaxed requirement. You could basically presume the credible threat of enforcement in the First Amendment context. It doesn't strike me as necessarily given that it transfers over to the Second Amendment or other amendments that may be at issue, and a reason I ask about Umphress is I think if you remove Umphress from the occasion, the district court went the other way, and maybe we should too. Your Honor, we're not asking the court to relax the requirements of standing. We think that the record demonstrates standing without any kind of relaxation of the requirements. We have multiple examples of enforcement in the past. We have the enforcement against Mr. Lumsden. Well, but they're dated. They're very stale. Well, Mr. Lumsden was 2020. So he was, I guess his house or business both were raided, and there were like six statutes at issue. 1242, I think the district court maybe even said it was an outlier. It was in there, to be sure, but that doesn't help you for 1243 at all. Well, for 1243, we have Mr. Shedd. I mean, Mr. Shedd lives on the Muskogee. Well, that sounds like an as-applied challenge. You're making a facial challenge, correct? We are making a facial challenge, but it's not— And nobody's ever enforced 1243. Well, Your Honor, Mr. Shedd lived in Arizona. He owned a switchblade knife. He then moved— I realize he apprehends. He's fearful of possessing one. He wants to possess one in Oklahoma. But, I mean, again, you have to show a credible threat of enforcement, and it's never been done. Well, Your Honor, the one important aspect of this is that the government doesn't disavow enforcement. And under UMFRS—and I know that we're not—the disavow aspect of UMFRS is critically important, because this is not a statute that's never been enforced and has gone into disuse. I mean, they enforce it when they want to. They enforce it from time to time. They enforced it against Spyderco, and I know that Spyderco was a number of years ago. But that was a different statute. That wasn't 1243 or 1242. Well, that wasn't—I understand, Your Honor. But this—it reflects an attitude of the government towards switchblades. They use the statute selectively when they want to go after particular companies or individuals. But you don't substantiate that with regard to these statutes. When—the Spyderco example is actually a very good example. The Spyderco example shows—because what came out of Spyderco is what's called the Spyderco Acknowledgement, the idea that now everybody in the industry has to sign and acknowledge that they're in compliance with the FSA. So it had a sweeping impact that exists to this day. Everybody has to comply with that. But that goes back to my question. How do we quantify or evaluate the threat of enforcement in the Second Amendment context? It is simply the idea that someone is at risk. For example, in addition to Mr. Shedd, we have Mr. Folliter and we have Mr. Arnold. They hold federal firearms licenses. They're FFLs. Now, Mr. Folliter has testified in the record that he goes through the federal possessions and federal territories that under 1243 would be prohibited for possession and sale. And so he can't take the risk— But that's not the threat of enforcement. Well, he can't take the risk that he loses FFL. If he— So the credible threat of enforcement, we're presuming it. The credible threat of enforcement is the government's general approach to this statute over the years, the fact that they use it selectively against targets that they disfavor, and the fact that a person should not be expected to lose their FFL or risk the loss of their FFL when the government won't say, we're not going to enforce this. So it's the disavowal of prosecution. It's the disavowal, it's the risk, and it is the pattern of enforcement over the years. It would be simple enough for the government to say, we don't really think 1243 is a statute we want to enforce anymore. We're all about 1242. So, you know, we're just not going to enforce 1243. They're not going to say that. They'll never say that because they want to use it when they want to use it. The pattern of enforcement that's in the record shows that they use the statute and they want to go after someone— When's the last time they convicted anybody or prosecuted anybody under 1243? I don't have that in front of me, Your Honor. I apologize. I didn't get it from the briefing either. I mean, that's just it. The 1242 convictions or prosecutions are the ones that you all cite, but they're at a minimum 10-plus years old, and you've got three or four or five in the first decade of the century, something like that. Well, Your Honor, it's a simple matter of— But where's the case law that says that's enough for a credible fear of enforcement going forward, pre-enforcement facial challenge? I think under Lujan we'd have standing for sure because we don't have to show that they are enforcing it all the time. Disavowal certainly gets us there, but it's a pattern of enforcement of the statute overall. 1242 and 1243 are part of an overall regulatory scheme. The only difference between 1242 and 1243 is they deal with different aspects of the industry. They go after different aspects of the conduct, the behavior, possession, the sale, the distribution, and so they're split up into two different provisions. It's the same regulatory structure, and so we're not required to show that they specifically have enforced each and every subsection of the regulatory structure to have standing to challenge it. It is their regulatory scheme, and of course the court can ask my friend on the other side why they won't disavow enforcement of 1243 because if they do— Well, we may well ask that, but you're hanging a lot on Mr. Shedd, and the only thing he would be prosecuted for, as I apprehended, is possession. Well, Mr. Shedd would be prosecuted for possession, but— To the extent that the district court found standing based on Mr. Shedd and maybe some of the other members, I guess the fellow whose home was raided in Colorado, I mean, you're looking at possession, and that hasn't been done. Again, I didn't see that under 1243 anywhere. Well, so Mr. Shedd lives in Indian country. Mr. Folliter travels to and sells knives in the various federal areas that are covered. Mr. Arnold travels in those same areas. Mr. Kaufman, Mr. Warden, they all travel in these various areas. They've all testified that they enter these areas and are subject to enforcement in any of these areas as they move about. So all of the plaintiffs have various aspects of standing for the different sections, including 1243 and 1242. Assuming, arguendo, that your clients have standing, could we talk about the facial challenge? Because it's my understanding that you're only bringing facial challenges. Is that correct? Are you bringing as-applied challenges on behalf of any of your clients? So, Chief Judge, that's a very good question, and let me give you an answer. So the challenge to 1243 is strictly a facial challenge. The challenge to 1242 is technically an as-applied challenge because we don't challenge 1242 to the extent it impacts importation into the country from outside the country. On its face, 1242 implicates importation. It prohibits importation. It doesn't talk about importation, but the language of 1242 naturally implicates importation, and the CFR regulation specifically said that 1242 prohibits importation. We don't challenge that. So technically, because it doesn't go to the entire face of 1242, it is technically as-applied, but it behaves analytically like a facial challenge. Probably the best way to describe it is the Eleventh Circuit called it a quasi-facial challenge in the AFSCME case, AFSCME versus Scott. Why is it a quasi? Why isn't it just an as-applied challenge? Because the Supreme Court in Doe versus Reed talked about how as-applied and facial aren't always strict categories. Sometimes claims can share characteristics of each, and the Eleventh Circuit cites Doe versus Reed in sort of coming up with this phrase, That's very difficult for remedies and things, whether you get to permanently enjoin the whole statute or whether it's just as certain uses that are inappropriate. It's just this quasi thing. Have we adopted that? I haven't seen it in this circuit, Your Honor, but here's why it's not difficult. Wouldn't you just be making a facial challenge to a portion of the statute? Yes, but, Your Honor, normally when you're making a facial challenge to a portion of the statute, you have subsections, right? So if 1242 had A, B, C, D, E, A between states, B between territories, C, right? And D is importation from a foreign country, then we'd say, of course, it's a facial challenge to A, B, and C, but we don't challenge D. It's not written that way, which is where this concept of a quasi-facial challenge comes from, why the Supreme Court described it in Doe versus Reed. It's really based on the relief that you seek. That's what the Supreme Court has said. We're talking about relief. So, Judge Wilson, you're correct that it really behaves like a facial challenge. It's basically we're challenging every aspect of 1242 except the importation ban, and so as to every other aspect of 1242, it is a facial challenge and should be treated as such. But aren't you seeking a permanent injunction against enforcement of sections 1242 and 1243? Except as to importation. Okay. So does that mean you don't think that 1242 and 1243 have constitutional applications ever? 1243 has no constitutional applications. 1242 has no constitutional applications separate and apart from importation. We have no opinion on importation. What about military bases, federal courthouses like this very building and federal prisons? So that's not how to analyze a facial challenge. A facial challenge goes to the language of the statute. So, for example, in Bruin, if it was looked at that way, the case would have come out the other way because New York could have simply said, well, you can't carry in a courthouse in New York. In some places. Right, exactly. But Bruin didn't come out that way because that's not the right way to look at a facial challenge. You have to look at what the statute itself actually prohibits. This statute doesn't have anything to do with courthouses, military bases. I thought that was exactly what they did in Rahimi, a case with which I was more familiar than I ever wanted to be. I mean, they cited Salerno, if I remember, and they said the first thing you're supposed to do is effectively see if there's any application in which it would be valid. And I cannot begin to see how this section 1243 wouldn't be valid as prohibiting switchblades in military bases, courthouse, just like the chief judge just said. So in Rahimi, the way the court applies Salerno is it applies it as to the language and faces, the elements of the offense. There's no element of this regulatory structure that has anything to do with military bases or courthouses. Sure it does. It says federal lands, federal properties, federal facilities, and then it cross-defines them and it breaks it out specifically. Correct. But the reason you can't carry on a military base is because it's a military base, not because it's federal. Well, in Indian country, there's a tribal council hall, government buildings, those kinds of things. You're saying that they can't be prohibited there either? No, we're not saying that. But that's what you are saying in a facial challenge. There's no application that would be upheld. In a facial challenge, we are saying that there is no constitutional application of applying the statute on Indian country because of its Indianness. In other words, the reason the statute bans possession in Indian country is because it's Indian country without regard to the uses on Indian country. Again, go back to Bruin, right? There's no way Bruin could have come out the way it came out if you parse a facial challenge this way, because there are many places within New York where you can't carry a handgun, courthouses, police stations, all sorts of places. And nobody argued that that prevented a facial challenge in Bruin. It's exactly the same here. It's the Indianness that matters as far as the facial challenge. It's the federalness that matters, not militariness, not a courthouseness, if the court understands what I'm saying here. It's critically important because that's what the Ninth Circuit did in knife rights versus Bonta. And it was incorrect. The Ninth Circuit was incorrect. And that would be the incorrect way to look at this. Because if the question the court is asking were correct, it would be impossible to mount any facial challenge under the Second Amendment, because you could always find some corner of a place where possession of an item would be prohibited. It would be impossible to bring any facial challenge to an arms ban, because there's always some place or some circumstance where it would be unlawful to possess that thing. But that doesn't go to the functioning of the challenged law. It's how the challenged law functions that defines whether the facial challenge can be brought or not. Thank you, Mr. Schmider. You've saved time for a rebuttal. Thank you. We'll hear from, is it Janda? Mr. Janda? Yes. How do you say? OK, thank you. Thank you, Your Honor. And may it please the court, Sean Janda for the federal government. The Federal Switchblades Act's restrictions on automatic switchblades lie at the intersection of three distinct principles, each of which independently confirms the restriction's validities. I'm happy to walk through each of those three historical principles. But just to get them on the table, first, we have the very well-grounded historical principle that states that the state or the federal government now may regulate concealed and therefore inherently concealable weapons like the automatic switchblades at issue in this case. Second is the similarly well-grounded principle that the Second Amendment does not extend to weapons that are adapted for criminal misuse. And then third is the principle that modest restrictions, such as those on the manner and mode of operation of weapons, do not reflect an infringement of the Second Amendment right. I think taking the confluence of those three principles together in this case provides more than ample support on the merits for both Section 1242 and Section 1243. Does the government consider 1242 to be a moribund law, given that it has not been charged in 15 years? I'm not sure that the category moribund has any particular historical or legal significance. What I can tell you is that, obviously, it is not charged often. Does the government disclaim that it can charge 1242 today, tomorrow, the next day? No, we think 1242 and 1243 are constitutional. We think we could charge them. And you're prepared to charge them tomorrow? Any violations? We have certainly not disavowed charging them. We think we could charge them. I'm not saying there's some investigation where charges are about to be made. And what is the date 1243 was done? 1242 is 15 years, right? Correct. What's 1243? So 1243, the record, if you look at ROA 1265, it cites a declaration from the Executive Office of the United States Attorneys, which says that as far back as the data goes, which is 2004, we have no reported prosecutions of 1243. And so at some point before 2004, there may well have been them. But the EOUSA data just doesn't. If this was a First Amendment challenge, would that be good enough for standing, if this was a First Amendment challenging? Yeah, I mean, so we think that in the particular circumstances of this case, the plaintiffs have standing. I think they would have standing probably even more clearly in a First Amendment. In a First Amendment, they would definitely have standing. And you think they have standing here? We do. And I will caution the Court. I don't think you need to relax the usual test in the way that it sometimes is relaxed in the First Amendment context. Why wouldn't we have the same sort of concern for chilling in the Second Amendment that we have in the First Amendment? I mean, I think that's a doctrine that is developed in the particular context of the First Amendment. I mean, there are a number of doctrines around. Right, it has. But we've had a great emphasis on the Second Amendment in the past decade. Why wouldn't we have the same sorts of concerns for chilling of Second Amendment rights that we have for First Amendment rights? I mean, I think chilling is sort of intimately connected to expression. And there's a whole set of doctrines. There's over-breath doctrines. There are sort of vague doctrines in the First Amendment. You could have over-breath doctrines and things, even in the context of different places and applications of how you know where you can and different types of knives. There could be confusion and vagueness. You could have all kinds of those theories. Just as a conceptual matter, why couldn't you have a chilling doctrine for Second Amendment? Yeah, I mean, let me say, I think in this case, the simplest answer is that because it's not necessary and plaintiffs haven't asked you for it. Because you believe they have standing. You believe they have standing because why? I mean, I think I would point the court to maybe the sort of combination of four things in this case. I mean, number one, I think it's very clear that they wish to engage in conduct that is absolutely prescribed by the statute. And they've made that clear. They've not been wishy-washy about it. They're very intent. Yes, and they have, I think, very clear declarations with very specific examples. Then why in the world did we litigate this to the hilt in the district court, not once but twice? I think the first case in the district court, the one that Judge O'Connor dismissed, the declarations were much more challenging to get them to standing. I think they came back with new and better declarations. And then we made the arguments in district court. I mean, I think as Your Honor recognizes. But you partially won the argument in district court. Correct. And I'm not saying they're unreasonable arguments. I think they're quite reasonable given the lack of. But the government changed its position. Correct. We took another look at this. I think we. So this is what's caused us a lot of time and attention on this. Is that right? On the standing question, yes, Your Honor. And then can I just go back? I think the other three things I'll point to. I mean, number one, this is a criminal statute with criminal penalties. So you shouldn't have to go to jail to prove you're right? Is that? I think it certainly points in that direction. Again, I'm saying that. This is an interesting argument where you're both arguing that they're standing. And you're making the pro arguments against the argument. But keep going. This is helpful. Well, do you agree that we should just remand this to the district court then in light of your concession? I don't think you need to do that. Well, let me say two things. I mean, number one, the district court did find standing as to 1242. And so I think the merits holding on 1242 is up in front of this court squarely. But as to 1243? As to 1243, I think if this court agrees with us about the defense of 1242, it applies, I think, sort of exactly the same way to 1243 because it's about the knives themselves and not about the particular regulations. Can you go really quickly through your four factors, though? You were doing such a good job. Oh, yeah. So I think the four things I would say. I mean, number one, they very clearly have established an intent to engage in conduct that we all agree is prescribed by statute. Criminal conduct. OK, go ahead. Number two, it's a criminal statute with criminal penalties. OK. Number three, we are not in a position to disavow enforcement. I am, like, affirmatively telling you we will not, have not, are not disavowing enforcement. And then number four, I think one particularly special thing about this case is that at least 1242 operates on manufacturers and distributors. And so I think what the plaintiffs would say is like, look, even if they were willing to sort of take the plunge and buy the knives interstate, they may well not be able to get them because. The whole commerce will be chilled. Well, because, right. So other, the people who they want to buy them from, I think is what they're getting at. Yeah, they won't have making, they will stop making them because it's not. Yeah, or they won't sell them interstate because they want to comply with the federal law. And so I think if the court feels compelled to say much about the standing issue, I might point to those four things kind of all coming together in this case as sufficient to give the plaintiff standing. Anybody else have any more on standing or you want him to go to merits on 1242? Merits on 1242. Yeah, so then on 1242, I'm happy to talk about the facial challenge aspect as 1243 as well. But on 1242, as I think we really have these three quite well-grounded historical principles. I mean, the first one is there is this extremely well-developed history of regulating sort of first the concealed carry of weapons like dirks and daggers. And then that develops into regulation of the carry at all of concealable weapons. But the government didn't talk about this in the district court, did it? I mean, I think we did have a merits defense along these lines. But did you talk in detail about the well-developed history? Did you? I think we probably developed it more in our briefs on appeal than we did in district court. I think in district court, we made a number of other arguments. Does it matter whether you actually developed it or not? I don't think. I mean, plaintiffs certainly haven't made an argument that we forfeited these arguments. My memory is that we certainly did make the historical arguments. I think Amaki mentioned something about that. Yeah, I think we've maybe rejiggered how we've sort of categorized the historical traditions. Well, am I reading the district court's order and opinion incorrectly? The district court sort of stopped before Bruin Step 2 and said, well, this really isn't a ban or prohibition. It's sort of a regulation. It's not like Reese. It's like our other recent case, which is escaping me at this point. McCrory. McCrory. And so there really wasn't a Bruin analysis, a historical analysis of these provisions, correct? Correct. Should we just remand this for a Bruin analysis if we think Bruin applies? And also for whatever, the 1243 with the standing concession? Yes. I mean, I don't want to say yes, you should. I think the arguments are briefed in front of you. And if the court sort of wants to decide what I think really are purely legal arguments, the court is certainly in a position to do so. But the district court, I mean, just didn't do the historical analysis that we think this court ought to do. And it didn't engage with the merits of the 1243 challenge given its holding on standing. And so I don't think there would be anything inappropriate about the court. Do you think McCrory is not the right standard? I mean, just again, I think in taking another look at this, with McCrory and Reese as kind of the two poles that we're trying to navigate between, our view is that this restriction operates more like the restriction in Reese, particularly given plaintiff's evidence, or at least their assertions, that some of the plaintiffs are simply unable to acquire. I mean, Reese was the 18 to 20-year-old ban, right? And McCrory was the 10-day waiting period, or am I confused? Yeah, 10 business day waiting period for, I think, also for 18 to 20-year-olds. I mean, this statute, sir, sounds like a lot closer to a ban. Right. I think that's our view. And at least. And you're saying you can, government can do that, ban's OK. Correct. Given the particular historical provenance that we have with respect to concealed knives, concealable knives. The ban isn't OK because these weapons are outside this protection of the Second Amendment, short-barreled shotguns. The ban's OK because it comports with historical analogs, relevantly similar from back in the day. I mean, to the extent the question's getting at whether this is kind of a Bruin step one or step two argument. Yes. I'm not sure that the court needs to figure that out. I think this is a place where step one and step two merge, whether it's sort of a gloss on the text as informed by history, or whether it's sort of manners of historical regulation. Our point is just that these sorts of weapons, dirks, daggers, Bowie knives, I mean, there's a whole real historical purpose here of state regulations of those weapons. Well, but I guess the reason I'm asking that is I'm not sure that step one and two converge necessarily. I do think there's a distinction, whether this particular switchblade knife is even within the kind of weapon protected by the Second Amendment, but it could be regulated, access to it, et cetera. Or it falls outside the Second Amendment altogether. A short-barreled shotgun is how I read Hiller and how I read McDonald. So therefore, we don't even get to Bruin. A ban's OK. You can just flat out say you can't have them. I mean, I think we think this operates sort of on similar historical principles to the short-barreled shotgun regulations, the NFA's regulations. So where you would put that bucket, I think, is probably where you would put these arguments. Can the government ban all knives? I think it may well not be a Second Amendment problem to ban knives. It may well be sort of a silly law for a lot of other reasons. Why would it not be a Second Amendment problem to ban all knives? I think we have this very clear historical tradition concluding that all sorts of knives, small sort of not swords, which I think are protected, but sort of dirks, daggers, bowie knives. But if you don't want to go that far, if you think that that's... Of outright bans. I mean, I guess what I'm getting at, you sort of argued this concealed, if it can be concealed, rule. I mean, most knives, pocket knives, they fit in your pocket, by definition, can be concealed. So the government could ban all of them altogether. I wouldn't say if it can be concealed. I think the way I would put it is if it's sort of, in the words of the Andrews case that we cite, sort of adapted to concealability. Then it falls outside the protection of the Second Amendment's right. But if you don't sort of want to go that far, as I said, we have three traditions here. The concealability tradition is the first one, which I think provides a lot of support here. But then you also have the sort of adaptive or criminal misuse tradition, which I think applies quite neatly to the automatic switchblades, which have that combination of sort of concealability, but also ability to unleash damage at a moment's notice that you might see with a short-barreled shotgun or a short-barreled rifle, as compared to a rifle or a shotgun or a pocketknife. So I think that comes in as well. And then the third principle, which maybe is the narrowest one in this particular case, is that these sorts of regulations on the manner and mode of operation were not historically thought to constitute an infringement of the right. Yeah, but this is a ban on possession. That's not a mode of operation. You can't have it. So I wouldn't think of it that way, Your Honor. I would think of it as a... That's what 1343 says. So I think of it as saying you can't have, at least on federal and tribal land, a switchblade where the blade folds into the handle and is released by the operation of a button. And so the regulation really operates on the press of the button rather than... and the folding in, rather than on banning all pocketknives, banning knives altogether. So it's kind of like a machine gun. I think quite similar to a machine gun, I mean, quite similar... Just another example, there's a federal statute that requires that all handguns have a particular amount of metal in them so that they can be captured by metal detectors, which, you know, you could stand up here and say that operates as a complete ban on all polymer handguns. But I think what we would say is, no, no, it's sort of regulation of the manner and mode of operation requiring a small amount of metal in the gun. And so I think the same thing here is if you want to get outside the restrictions of the Federal Switchblade Act, you need a knife that operates in a slightly different way that you have to pull out or that's fixed-bladed. But these arguments were not made to the district court. They certainly weren't ruled on by the district court. Yes, and the district court went in a completely different direction under the guidance of the government. And so should we be dealing with all of these moving parts as a court of appeals? You know, look, I think this court could say, you know, the district court was wrong or the government's not defending the holding, that the 1242 holding on the merits, the 1243 holding on standing, we vacate and remand. That that would dispose of the appeal and the district court could consider these questions in the first instance. You know, I think if the court wants to consider the questions, certainly we've tried to give the court the briefing and the argument to allow it to do so. Do we have the briefing and argument now to do that? I think you do at this point. But again, I think if the court still has questions or the court thinks it would benefit, these issues would benefit from erring in the district court in the first instance. There's certainly no impediment to remanding and allowing the district court to consider. The one thing I might say is that when it comes to the facial challenge issue, I think that's really a purely legal question about whether or how to think about facial challenges and it may be helpful to provide the parties guidance. You know, if the court were to say, for example, that plaintiffs might be well-advised to amend their complaint to bring an as-applied challenge if that's sort of really what they want to do, that, again, may be helpful. Should we have a quasi-facial challenge doctrine in this circuit? I mean, I would think of it the way that... Like the 11th? Do you believe? I would think of it the way that Judge Wilson thought of it, which is just it's a facial challenge to part of the statute and you don't need to have the statute broken out into subsections to be able to facially challenge. You can just say this sentence and that sentence and that paragraph between these two commas is facially challenged. Right. And, again, I think that would be perfectly fine. I think when it comes to their 1242 challenge, that's what's happening. You know, we don't take our pencil out and line edit these statutes, though. I mean, I think the way it would work in this case is if the plaintiffs, maybe just focusing on their 1242 challenge, if they won on the 1242 challenge at the end of the day, they would probably get an injunction that says we can't enforce 1242 as applied to the distributing, manufacturing, but not as applied to the importation, which I think would just sort of match up with the parts of the statute that they are challenging. So you just think it works its way out in the remedy? I mean, I think there's a lot of focus in plaintiff's briefing and in the way they frame their complaint about the sort of facial as applied distinction. I think the real question, I mean, at the end of the day, is just, like, what do they want to do? And do they have a constitutional right to do that thing? And if they're right that they have a constitutional right to do the thing and the statute prohibits it, then they get an injunction saying that we can't enforce the statute as to that thing. What is the lay of the land of the states vis-a-vis these switchblades? Yeah, so there are, I think, five states in the District of Columbia that sort of flatly prohibit their possession. There are, let's see, I have a list somewhere. There are, I think, three more states that ban switchblades above a certain length, which may vary. Three more sort of generally ban them, but have some exceptions. So are we up to 11? I think that is, yes, 11 plus DC. So the vast majority do not ban these? The vast majority of states do not ban them. Yes, that's the vast majority of states do not ban these and allow these weapons. Correct, although with one... What about the three states in this circuit? Texas, Mississippi, and Louisiana. So I'm not sure what those three states do. I don't remember seeing them in the list of states that ban. I will say that a number of major local jurisdictions also have bans, because I think there are particular circumstances. Well, one of the oldest cases I think you cite, actually, was Louisiana case that 1813, there was a law that basically said you couldn't possess concealed... Possess them concealed, correct. You possess, I mean, darts, daggers, all sorts of small blades. Right, but I mean, that would suggest that that's been Louisiana law since statehood. Or no. Well, I think that if that law is still in effect, it would mean that you can't possess them concealed, which may well mean you can't possess them. I mean, I don't think the plaintiffs say they want to walk around with the knife out the whole time that they have it. I would think they want to fold it up and put it in their pocket. You can have open carry of switchblades? I think as a theoretical matter... I'm not being facetious. No, no. I'm just, you know, that's the question. It's got to be concealed or not. Right, I mean, I think that goes to sort of the first historical tradition we've identified, which is that, you know, although a lot of the laws, the earliest laws that we identify talk about concealed carry, it's, like, really hard to imagine someone... If we were to dive into the merits of all this, what is the government's position? What's the position of the United States on what the proper reference date would be? Is it 1791? Is it 1868? So we haven't taken a position on that question. I wouldn't want to get ahead of my skis on that. What I would say in this case is that, you know, we have a lot of state Supreme Court cases and other sort of commentary, and the commentary and cases themselves post-date the immediate founding, but I think they are thinking about how the laws that they're identifying fit within this much broader historical tradition. But Bruin looked back to 1791, did it not? It was a federal act, so therefore... No, Bruin was a state act, so it sort of grappled with the question Judge Willard asked. 1791, 1868, sometime in between or after. But Brahimi was a federal law, and if I remember correctly, they went back to 1791. I mean, I think it is true that probably 1791 is sort of more helpful than later enactments. Well, in 1791, there was no dispute that the Second Amendment applied as against the federal government. Correct. There was some, I guess, question, maybe until late into the 20th century, whether it applied at all to the state governments. Correct. One more question? So, assuming 1791 is the magical date, can you identify, is there any kind of founding era, not Reconstruction era, any founding era regulation that restricted the acquisition or possession or distribution of a class of arms? Not how those arms are carried, not how they're used, but acquisition, possession, distribution. So we don't cite any of those in our brief. To be candid, I'm not aware of any. I think the earliest law that we cite in our brief is the 1813 Louisiana law. The Ninth Circuit opinion that we filed the 20HA about goes back to a 1686 New Jersey law. That's the earliest one that they found. But again, I think the earliest laws that we have found operate on the concealed carrying. But then, in the historical tradition, I think it grows organically, and you have the later, the Reconstruction era laws that apply that tradition to the inherently concealed weapons themselves. And the authorities just don't seem to draw a distinction there, which, again, I think goes back to the point that it's really weird to think of someone who wants to open carry an automatic switchblade. You can ask the plaintiffs. I suspect their clients don't want to walk around every time they're in public and have the blade out and open. I think the whole point is that you can conceal it. And so I think those traditions really do merge in this context. Well, you could have it closed, but people could know what it was. I'm not sure that that's right, Your Honor. I bet you wouldn't want to put it to the test, because I bet you there'd be plenty of people who would be willing to open carry. If that was the distinction between concealed and open. Maybe, but I think the point, again, is just that in the history itself, the very small move from no concealed carry to no protection of inherently concealed or adapted to be concealed weapons, the pocket pistols, the sword canes, the dirks, the daggers, is a move that happens in the history and is well-grounded and situated in the historical tradition. And that's, I think, all the court would need to say if it were to reach the merits. Even if we were assuming arguendo to come out differently than the Ninth Circuit, there would not be a circuit split on this, would there? Because that was dealing with the California statute specifically and not the federal statute. I mean, there would not be a... There would not be a circuit split as understood by the concept of circuit splits and requirements to precirculate opinions and all kinds of things that happen when you have a circuit split. Because it wouldn't be the Federal Firearms Act. I mean, the Federal Switchblade Act. We're not dealing with the state law. Right, so the Ninth Circuit opinion is about state law. Yeah, it's the state law. California Switchblade Statute, yeah, or whatever it's called. Correct. So I don't want to speak to the court's internal practices about circulating opinions. No, I'm not asking you to evaluate this. But there would not be an actual circuit split on this statute? It would not be on this statute. It may well be, depending on what you say. It might be some kind of reasoning or tension or whatever, but that's not... It's a different statute. They applied... They were inquiring into the California law. Correct. Okay. If there are no further questions, we would ask the court to affirm. Thank you. Or to remand. Or to remand. Whatever the court wants to do. It's very important that the court not lose sight of what rule governs this case, which is the common use rule. There is no adapted to criminal use rule. That's just interest balancing. We don't compare what criminals can do with arms versus what law-abiding individuals can do with arms. If the arm is typically possessed by law-abiding citizens for lawful purposes, that's the end of the inquiry, which is why the court need not remand to the district court, because there is no further Bruin analysis to do. The Supreme Court did the entire historical analysis for arms bans in Heller and announced the common use test. If switchblades are typically possessed by law-abiding citizens for lawful uses, they are protected. That's the end. The government does not get to do more historical analysis. That said, the historical analogs that they've tried to provide don't help at all. None of them, with the exception of maybe West Virginia, which is an outlier, is an outright arms ban. We know from Bruin that three analogs aren't enough. Certainly one analog isn't enough. Almost all of the cases and statutes that deal with this kind of stuff are conduct-based. They're either a fray or going armed type laws, or occasionally there's a ban on concealed carry, but not bans on total carry. As we know from cases like Nunn or Chandler, you have to have some basis for carry, and of course we know from Bruin you can't ban all forms of carry. So even if the government does get to do additional historical analysis, which they don't, none of that helps them in this case. I want to address standing briefly, because I'd like to just sort of point out, with Mr. Lumsden, his issues are still going on. They seized his hard drives and his computers, and they still haven't given them back. They're enforcing the statute today. So enforcement continues in Mr. Lumsden's case. I heard my friend on the other side adamantly refuse to disavow enforcement of 1242 and 1243. It's a criminal statute. The purpose of a statute like that is deterrence. The whole idea that my friend on the other side got up here and said that should scare anyone who lives in any circumstance or operates in any circumstance where they would run afoul of 1243. In addition to prosecution, losing their FFLs, any number of those circumstances. That alone should support standing in a case like this. I will briefly, if the court wants, I can address 1791 versus 1868. This is a federal statute, so none of the 14th Amendment arguments as to why it's not 1791 would apply in any of them. So this court doesn't even have to resolve that question. But if the court decides to resolve that question, the Supreme Court was actually pretty clear in Bruin. Even though they said nominally, we don't have to decide this today, they basically made it clear that how the Second Amendment works under federal law and state law is supposed to be the same. And so the idea that there's some different Second Amendment for state law that would deal with 1868 doesn't make any sense, even though they sort of Well, they've sort of alighted the issue. I mean, the reality is that analogs might be a lot more salient for state laws if they dated from the 1870s, 1880s, 1890s, less so if we're talking back to the founding era and it's a federal restriction. Correct. And since this is a federal law. But I also think that you sort of brush aside the state analogs that the government offers as well. They're just state laws. But most of the Bruin or Rahimi cases that we've handled or that I'm familiar with have gone and looked at colonial laws and state laws and other instances, even back to the laws of England, the statute of Westminster, Northminster, I can't remember which Minster. But we're looking for any sort of restrictions that would have been salient at the time the amendment was adopted, whether they're state or federal. There were no federal laws at that point, and there were very few in the first couple decades. I'm sorry, Your Honor. I didn't mean to imply that state law analogs don't inform the historical tradition. I didn't mean to say that, if that's what Your Honor understood. What I was saying is that the government's analogs don't work. They're not proper analogs. They're not relevantly similar. This is a ban. None of those are bans with the exception of one outlier. Those are conduct-based prohibitions. In a couple of instances, they are simply prohibitions on concealment. Okay, I appreciate the clarification because I had read the briefing to sort of minimize the states because it was a federal law. But how does this feed into the issue of facial challenge? In other words, if there's a whole category of manner of usage, you can't conceal these things. Then does that defeat a facial challenge because there are applications that would be within the historical tradition? It does not, Your Honor, and for the same reason as I explained before. The Salerno test goes to what the elements of the offense are. This statute has nothing to do with concealment versus non-concealment. It has to do with manufacture, distribution, possession. In fact, that's exactly what the Ninth Circuit did. The Ninth Circuit took a very broad statute and said, well, if possession is banned, carry is banned. If carry is banned, that means at least conceal carry is banned. So now we're going to find a historical tradition, and by the way, they were wrong about that anyway on the merits, but we're going to find a historical tradition that says you can ban, conceal, carry, right? And so now we're going to find the facial challenge fails. That's exactly the same thing as suggesting that Bruin fails because courthouses in New York, it would be constitutional to prevent carry of a handgun. So for the exact same reason, that's not the correct analytical way to understand how Salerno applies to facial challenges. Thank you. We appreciate your argument, and we appreciate the argument of the other side, and this case is submitted. The court will stand in recess until 9 a.m."
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"stt_transcript": "Good afternoon. Welcome to the Fifth Circuit. I think we've got three arguments on the calendar for today. So batting lead-off is 25-50144, United States v. James. Ms. Killiman, welcome back. May it please the court. Opposing counsel. Mr. James raises three issues. The sentencing error. The government also agrees that the correct mens rea for attempted murder is specific intent to kill. That callous and wanton disregard for human life is insufficient. That element is important to the two arguments Mr. James makes against his conviction. Instructional error and sufficiency. I'd like to start with the instructional error. And of course that means the first question is, does the court get to review the error because of the invited error doctrine? And it does for two different reasons. The sort of bigger ask that I describe in the reply brief is for this court to craft an exception to the invited error doctrine, at least for jury instructions in criminal cases, that it shouldn't apply absent waiver, the intentional relinquishment of a known right. And that's described in the reply brief and I'm happy to answer questions about it. The second way to still get to the merits of this issue I think is the smaller ask, and that's to apply what this court has already recognized, an exception to the invited error doctrine for manifest injustice. And the court has applied the manifest injustice exception to invited error in the sentencing context in Taylor, which was cited in the government's brief. And that, in my view, is less egregious circumstances than here. The court, district court, in Taylor had intended and said in the record that he wanted about nine months of the sentence to be counted towards Mr. Taylor's sentence. But the defense attorney proffered the incorrect language for that judgment and the result was that the Bureau of Prisons wasn't crediting the nine months towards the sentence. And so this court held in Taylor that on limited remand, if the court clarifies that it really did want those nine months to count, then that would be manifest injustice and they sent it back to be corrected for that. And so that also was a court with an intention, like I'm sure in this case the district court intended to correctly instruct the jury. The language that the defense offered was incorrect, but the parties in the court adopted it. And this serious jeopardization of Mr. James Wright to be found by the jury guilty only beyond a reasonable doubt as to element was seriously jeopardized by that mistaken instruction. But how so? I mean the evidence here amply supports the required intent as opposed to any, you know, question about the lesser intent level. I mean a jury easily could find that he intended to kill the victim. A jury could also easily find that he acted with callous and reckless disregard for human life. Well actually maybe my question was imprecise. The jury easily could find that the higher intent was there. In other words, there doesn't seem to be that much risk for the callous indifference to really be at play here. And so the question is, I guess, how do we determine what is a manifest injustice in this case given the evidence in the trial? So I don't agree that the jury definitely would have found specific intent to kill. If it had been instructed it had to agree on specific intent to kill. And part of my support for that is the district court statements at sentencing. But isn't the fact that we can sit here and debate this probably the rest of the afternoon, we won't. Isn't that indicative in itself that any injustice is not manifest? No, I think that's a reason perhaps we lose on sufficiency of evidence, our other argument. But the question for the instructional error is whether there's a reasonable probability that the jury wouldn't have convicted Mr. James if it had been properly instructed. And that... Well right, but we've got to get through the fact that the instructions were substantively identical to what the defendant himself requested. And we've got to find that there's a manifest injustice. I mean, I take manifest to mean apparent. And it's nowhere apparent to me on this record that what the jury did went off the rails. Or they were misinstructed. Well, they may have been misinstructed or it may have been ambiguous, but that they followed the misinstruction. So manifest injustice, you're correct, it has been defined to mean an error so patent as to seriously jeopardize someone's right. And I was focusing on the right that I believe was jeopardized by Mr. James. And I understand that it is a jury question to determine what the mens rea is. Other circuits have reversed on instructional error in similar, you know, stabbing, brutal attacks where they found sufficiency of evidence that, yes, this meets the specific intent to kill. But there was still a reasonable probability. And even given the grievous wounds in that case, I forget if it was Jones or Perez, then it would go back to the jury for a new trial. And then there's Kwong, which was the booby-trapped briefcase case where the court did say sufficient evidence of specific intent to kill. We're crediting the verdict. But the problem on instructional error is I don't think you can credit the verdict anymore because the jury wasn't properly guided in its deliberations. And when we have the circumstantial evidence of many wounds and, you know, the different locations, but he was an army medic and he left without her being dead. And she was alive and aware of what was happening at the end. Given these circumstances, I think a reasonable juror could have also said no specific intent to kill, but certainly acting with deliberate indifference to the human life that may be lost from the actions. So and part of the patentedness of the obviousness of the error does come from Braxton and how the, you know, so it's obvious in the straightforward application of the Supreme Court and Hernandez-Montes, this court's common law attempt to murder case that the right element was specific intent to kill. And I know that there are unpublished guidelines cases from this court that say, well, we haven't really held one way or the other. Those cases do not recognize Hernandez-Montes. They're also in a different context of the guideline language. And they make the same mistake that the defense attorney made here, because the court in those cases, Hernandez, Lopez and Jackson, just looks to the murder definition for mens rea without glossing on and applying the attempted aspect of the crime, which narrows that malice of forethought from the two options to just the intentional and deliberate killing of someone. And so that makes it obvious that a mistake was made. And it also seriously jeopardized his right. In the Jones case that you mentioned a little bit earlier, one of the reasons for the fractured opinion was that, I think it's Judge Goodwin said that there was no statement, the government didn't have any statement like I intend to kill you specifically. Isn't that a little, isn't that distinguishable from this case? I mean, he used some words that I probably, I don't want to use from the bench, but didn't he use words like either this or your life? So he made a threat. That's true. I think making a threat an ultimatum, you do this or I kill you, is different than I intend to kill you. And that's what the district court was saying. But how, how is it different when he, when he basically says you do what I want you to do or I'm going to kill you? Because it relies on the victim to believe the threat to succumb. It doesn't mean he actually had the intent to kill. So we don't take him at his word? You're suggesting that we just, we don't take him at his word? His word is not enough? I don't think that we have to credit the, that he would follow through with the threat. And I think the point of the threat was to have her acquiesce to the sexual assault. And so while that is certainly evidence that the jury can consider, whether the jury necessarily finds that it's specific intent to kill, I don't think can just turn from the threat that's made. Specific intent was never really contested at trial, was it? No, it wasn't contested. How can, how can, it just seems that any instructional error, how could that possibly affect his substantial rights if you didn't contest specific intent at trial? Well, because everyone was mistaken at trial. So there wasn't, under the incorrect impression of the law, I would say there was certainly callous and wanton disregard. So don't spend your time arguing about mens rea because it's going to meet that lower standard. Well, but you know, the instructions are not incorrect. In other words, the instructions define murder. They define the specific intent, malice aforethought. They lay all that out. They're not incorrect. There's nothing in the instruction that led the jury to rely on either of the, I think there was a case like this, that the jury was affirmatively instructed to rely on either of the mens rea requirements. That's clearly, that would be much more substantial error than what happened here. There's nothing incorrect like that, like an affirmatively incorrect instruction. And I just question whether this is an obvious, as obvious an error as what plain error would require in any event, where the instructions themselves were correct. The assumption here is that the jury nonetheless went off the rails by going with the lesser standard, the lesser specific intent, or the lesser intent standard, let me try to say that, versus relying on the one that the evidence supported. Two points. First, in case to bring up, and just that this court in Capistrano recognizes that there can be plain error in jury instructions when the instructions are contradictory, unclear, and no party discussed the correct law at the, in closing argument. So they say that in the context of invited error also? That was not invited error, that was plain error. And most of the invited, this court's invited error cases find that there was no error, or that there was no third prong. Turning to the instructions though, they were incorrect. They included the instruction for malice of forethought. And the indictment says, intent to kill with malice of forethought. And at ROA 564, that's the paper version, not the transcript, but they're the same. It delineates with malice of forethought, means to either kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. And so the jury, while not in that one case, wasn't told you can find callous and wanton disregard and that's enough. The jury was told you can find either intentional killing or you can find callous and wanton disregard. And all the element instructions simply refer back to the definition of murder, which also incorporates that malice of forethought definition. And then the second element that the instructions have, just a substantial step towards the crime and strongly corroborates the defendant's criminal intent. That is a stark contrast from the pattern instructions in the 9th and 11th circuits, where it says to the jury, you need to find a specific intent to kill, and that that intent existed when the substantial step was taken. And so these instructions, the elements themselves are unclear, but coupled with that definition of malice of forethought, they are wrong. And that is what the other circuits have found as well, that even using that statutory language, intent to commit murder, while that is technically correct and in the statute, when it is coupled with the definitions imported from the murder, you know, just the substantive offense, that's what makes it incorrect to do that. So I just have a little time left. Perhaps what the court was getting to also was the government makes an argument about it being a logical impossibility to act intentionally with callous and wanton disregard. And so the jury would know you can't recklessly intend a criminal act. But first off, the jury needs to follow the instructions, and the instructions don't explain that. And second, in Chagra and in Amdur that is cited in the briefs, it talks about how someone can, the definition of malice of forethought is intent to kill or intent willfully to act in a callous and wanton disregard manner. Okay, we'll see you back on rebuttal in a few. Mr. Knoll, welcome. Thank you, Your Honor, and may it please the court. Andrew Knoll on behalf of the United States. Alan James no longer disputes that he was the assailant who brutally attacked Mary Mannis in her barracks at Fort Hood in June 2000. James repeatedly stabbed Mannis, threatened her life, and when she fought back, plunged the knife into her neck within millimeters of her carotid artery. Even after she stopped resisting, James continued stabbing her and then left her for dead. This court should reject the new claims challenging his attempted murder conviction that James never raised below. Let me start with the invited error question. I think there's four specific reasons why this court can't and shouldn't find a manifest injustice exception in this case. The first is that that manifest injustice was never discussed in James's opening brief. Pages 11, 12 of his brief acknowledge that the instruction given was one substantially the same as the one he requested, and yet he never addressed invited error in his opening brief. In addition, I think, Judge Willett, to your point, here the issue of specific intent, indeed the issue of kind of how the attack unfolded and the circumstances of the attack, were never at issue at trial. He raised an entirely identity-based defense, and so I think that distinguishes cases like Taylor, where the invited error issue is one that's hotly disputed in the district court, and therefore there may have been a different outcome. Here, there was just no discussion of the actual circumstances of the attack. Indeed, James played up those circumstances in claiming below that he, who had no prior relationship with Ms. Mannis, couldn't have been the one to commit the crime. The two other reasons I would say there's not a manifest injustice here, first, Judge Wilson, to your point, I think this bleeds a bit into plain error, but we don't think there's any error here at all, much less kind of a clear and obvious one. The instructions specifically require the, and it tracks this court's standard pattern jury instruction 1.34 for attempt, generally. They define the actual substantive offense, and then they go on to say, to find an attempt, the jury would have to find intent to commit the crime, and that includes both the actus reus and the consequence, the fully completed crime, and so that distinguishes, I think, multiple of the cases that James cites in his brief, particularly the Perez case in the Seventh Circuit and the Kwan case in the Second Circuit, where the instructions actually conflated specific intent and wanton disregard. If you look closely at the instructions there, they said a jury could find a functionally specific intent if it found the instruction was specific to intent to commit murder, and for that same reason, Judge Douglas, to your point, I think the Ninth Circuit decision in Jones is very distinguishable on two grounds here. First, that was a preserved error, and there was actually a dispute at trial in Jones about whether the defendant, in fact, specifically intended to kill, because the defendant said that he intended to teach his cellmate a lesson, and he testified himself disputing the circumstances of the offense, and so that issue of kind of what was his intent and what were the circumstances of the offense, those were all hotly disputed at trial, and so on preserved error there. The court found an error. We don't agree there was an error, but even if you thought there was, we think that specifically distinguishes this case. The circumstances of the assault there, which included only five stab wounds and didn't include, Judge Douglas, kind of a statement about the defendant's intent, which we have here, I think fully distinguished that case as one in which there was either an error or one that would require reversal. So we think there's an invited error here. This court's cases on invited error always turn on just the mere fact of whether the party, whether it be a defendant or a civil party, actually requested the instruction, and in Gray, for example, in 1980, this court said, to avoid invited error, the defendant has to say he no longer wants the instruction. That's the on-off switch for invited error. So we think this case can be resolved quite easily on invited error. Even if you apply plain error for the same reasons I just discussed, I think there is no actual error here to the extent the instruction required intent to commit murder, which requires an intent to achieve the death of Mary Maness, and because the circumstances here, the overwhelming evidence, including both the nature of the actual physical assault on Miss Maness, the locations of the wounds, the through-and-through wound on her wrist that pinned her wrist to the nightstand, the repeated stabs to her neck close to her carotid artery, the fact that he made a specific threat before those neck vital areas of her body, and then that he kept stabbing her once she stopped resisting. All of that, I think, put beyond dispute that this was a circumstance of specific intent to kill. For those same reasons, I would say this evidence was clearly sufficient for a rational jury to find that James specifically intended to kill, and unless the court has any further questions, I'm happy to rest on our briefs. We obviously agree that resentencing is required here given this court's case law about the ex post facto issue, but we'd otherwise ask that you affirm the conviction itself. Thank you, Mr. Newell. Thank you. So regarding our failure to talk about manifest injustice in our opening brief, we proceeded under the assumption and belief that it was plain error standard of review, so once the government brought that up, we responded in full in the reply brief. I couldn't find a case where this court has held either on plain error review or injustice that they couldn't consider our arguments where it was fully addressed in the reply brief. And of course, our threshold argument is that invited error shouldn't apply at all because this court should adopt the test that the Ninth Circuit has, and even in his argument, the government doesn't make a case that this was a tactical deliberate error that the defendant knowingly introduced. Is that required? Currently, it is not required in this court's law. It is required in the Ninth Circuit, and I believe also the second, third, and district DC circuits apply it. And so that lack of intention in a deliberate trial strategy is also a reason to find it manifest injustice, and the Sixth Circuit has applied that reasoning to apply manifest injustice in a case called Barrow that's in our brief that also had to do with an instructional error where they went on to consider the issue because of the rights at stake to determine whether it was obvious or not. And so with regard to the argument about there not being error, counsel was referring to, you know, intent to commit the crime, intent to commit murder. It doesn't say intent to kill, intent to cause the death, and murder is defined in the instructions as a killing that is committed with malice of forethought, and malice of forethought is defined to be accomplished two different ways. And so if we assume that the jury is actually being guided by the words that the court gave it for deliberation, it can convict on either ground of the mens rea, and that's what where the prejudice stems from here. And I think for the, if there are no further questions, then I would just close with saying that this is a manifest injustice, and the fourth prong and manifest injustice are also served by reversing in this case because reversal will instill confidence that defendants are not held responsible for, by mistakes that the parties and the court made that affected the outcome of the case. Okay, Ms. Kimmelman, thank you very much. Appreciate your back-to-back arguments this week. Counsel, thank you both for your briefing and your presentations today. The case is submitted, and as y'all are getting tidied up, I'll go ahead and call the"
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"stt_transcript": "The next case on our docket is 25-50566 Grice v. Metropolitan Life Insurance Company. Mr. Roach. Thank you, Your Honor. Good morning. My name is Lonnie Roach. I represent Jason Grice, who has a very unfortunate neurological, progressive neurological condition called Charcot-Rouge tooth disease. It's a terrible condition that causes his extremities, most primarily his feet, to contract into clumps, so that periodically surgeons have to go in and break his bones, straighten out his digits, shove pins through them into his metatarsals to allow it to heal long enough for him to go for another period of time when the process starts all over again, and he's had a number of surgeries throughout the course of his life, but the surgery that brings us here today occurred in January 2022. In his previous surgeries, after he's had these procedures done, he has been able to return to work, work for Google LLC, but on this particular occasion, I think due to the progressive nature of the disease, he got to the end of his approved short-term disability period and he couldn't go back. The surgeon said, no, you're not ready, I'm going to extend your time off of work, his physical medicine rehabilitation doctor said, no, you can't go to work right now. If you did, you'd have to take 15 to 20 minute breaks, excuse me, breaks every 15 to 20 minutes due to the pain, because he had not recovered from the surgery, his employer, Google LLC, extended his medical leave, so he was fine from his employer, but the long-term disability insurance policy that was administered by MetLife denied his long-term disability claim. And that's where this very simple case got very complex, because the Google LLC plan, I personally believe is a very well-crafted ERISA plan, and I've read a lot of it. The Google plan provides 27 different distinct component programs, benefits to its employees, all sorts of things. They'll help you draft a will, they'll help you with your probate services, life insurance, health insurance, medical insurance, disability insurance, et cetera. The plan, which governs these 27 component programs, divides up these component programs into two broad classes, those that are self-funded, probate services, help you draft a will, et cetera, to those that are fully insured. And for some benefits, Google simply says, we're just going to buy insurance and let the insurance companies take care of this. And the long-term disability plan that MetLife issued was a fully insured plan. This is the way the plan document describes these component programs that are fully insured. Insurance, the company may but will not be required to insure any of the benefits provided by the plan. To the extent the company elects to purchase insurance, any such insured benefits will be the sole responsibility of the insurer, and neither the plan sponsor, the participating employer, nor the plan shall have any responsibility for the payment of such benefits. We bought the insurance, we issued an insurance policy, let the insurance company take care of it. Well, that seems simple enough. If we have an insurance policy, a long-term disability insurance policy, fully insured, that we can read and see exactly what it provides, and the plan document even states. This certificate describes the benefits that are available to you. We urge you to read it carefully. Now, of course, reading this insurance policy carefully would have done Mr. Grice no good because of the reason we're here today. Because MetLife argued for, and the district court ultimately determined that it was going to take this, it was going to review MetLife's decision to provide benefits to Mr. Grice under a preferential standard, instead of the arbitrary Comprecia standard, instead of the Novo standard. Now, the Google plan is structured so that it leaves it up to the insurance components as to what sorts of rules are going to be used to govern the particular claims. And on the surface, this seems very simple because the insurance policy in this case was used in Texas. Texas bans discretionary clauses in insurance policies. It was issued after 2011. This insurance policy was issued in 2022. It does not contain a discretionary clause, and it contains the regulatory language necessary to be an appropriate conforming Texas insurance policy, which is exactly what it is. And since there's no discretionary clause in it, very simple, this is a DeNovo review of MetLife's decision. Except MetLife argued, well, no, we need to look at additional terms which aren't in the plan, or excuse me, not in the insurance policy. There's other things we have to go look at that the plan didn't bother to look at in the insurance policy, and one of them is the discretionary clause in the plan document. Well, the plan document is not an insurance policy. It's a global plan designed. It covers 27 different component programs. And the plan document states that it confers discretionary authority on all of the individual administrators of each of its component programs, but subject to a litany of rules and tests for conflict. In each instance, whether it's a plan document, the wrapped summary plan description, or any of the documents, all of the documents in this plan require that the terms of the certificate of insurance governs whatever component is insured by that certificate of insurance. Seems to make sense. Actually, it makes very good sense. It's an elegantly drafted plan, quite frankly. But if we stick to the four corners of the insurance policy which governs Mr. Rice's benefits, there cannot be discretionary review of claim determinations because, once again, policy is used in Texas, doesn't contain a discretionary clause. And so Mr. Rice's determination should be reviewed de novo. MetLife argued in the district court agreed to look outside the four corners of the certificate of insurance and said, well, we can rely on the discretionary clause and the broad grant of discretionary authority in the plan document. Well, there's a problem with that. The problem with that is now we're using deferential review on an insurance policy that wasn't designed to provide deferential review. It doesn't contain a discretionary clause. So how do we get around the fact that the insurance policy doesn't contain a discretionary clause? And the district court said, well, what we can do is we can say that there's one in the plan document, and we can just use that one. And what the district court's term was, it was just additional terms. It's additional terms for this particular coverage. And we say, well, discretionary review on these types of claims are not legal in Texas. If the plan document confers discretion on MetLife, that is not a lawful convergence of deferential review because those types of reviews in Texas on these types of policies are not legal. Well, the district court said, well, we can look at then another state's laws. We can't look at Texas law because Texas law would not allow deferential review of Mr. Grice's claim. We can look to California law. Why are we going to look at California law? Well, because the plan document contains a clause that states that it was delivered in California and would be governed by California law. But Mr. Grice would argue, yes, but the document she gave me and the plan document itself says that we only apply the provisions of the plan document or other documents if it's included in the certificate of insurance. And the form selection clause in the plan document is not included in the certificate of insurance. Well, the district court says, well, group life policy. The certificate of insurance was issued under a group life policy. The group life policy was a policy that MetLife issued to Google LLC. The problem with that is, once again, the group life policy says, well, not all the provisions of the group life policy apply to the individual components of the group life policy. So we'll pull out the components for the group life policy that apply to your claim, Mr. Grice, and we'll put them in your certificate of insurance. Well, Mr. Grice would say, well, there's no form selection clause in my certificate of insurance. My certificate of insurance doesn't say it's governed by California law. I don't have any contact with California. Never been to California. It's a, yeah, I live in Texas. My job was in Texas. I worked in Texas. This policy was issued to me in Texas. Why would California law govern if there's no form selection clause in my certificate of insurance? And the district court said the most remarkable thing. The district court argued that, well, the form selection clause was incorporated by reference into the certificate of insurance, which the only response to that is, no, it's not. There's no incorporation by reference. It doesn't say that. It doesn't say that anywhere in there. And so the district court said, well, we believe it's incorporated by reference. So we'll apply California law to your claim, Mr. Grice, even though your claim occurred in Texas. But then that raises another problem. And one of the problems is that the plan document grants this broad deferential authority to all the administrators of the component programs has a caveat. It states that, provided that, any deferential decisions must be applied uniformly to all persons similarly situated. And the problem with the way the district court interpreted this plan is that the district court recognized that California, the state of California, like Texas, bans discretionary clauses on these types of claims, but only for California residents. So under the district court's ruling, if you work for Google LLC and you are lucky enough to live in California, you get a noble review of your claims determinations. But if you work in Texas or really anywhere else but California, sorry, it's going to be discretionary for you. Only California residents get the deferential review, not people from Texas or Louisiana or Mississippi or Nevada or Colorado or any of the other states that Google LLC operates on. And so we end up with a decision that puts California residents, or Google employees, in a completely different category than Google employees who work in other states other than California, even though the express terms of the plan document say that we don't do this. And that presents the danger that this case poses because what this case, what the district court's decision does is it provides a roadmap for an insurance company who maybe wants to operate in a state like Texas that bans discretionary clauses in insurance policy, but they just don't like that. They really don't like the fact that they can't exercise that discretionary authority because it's illegal in the particular states they want to issue policies in. So what you do is you take your discretionary clause and you put it someplace that the state can't regulate. See, the state can regulate an insurance policy because of a risk of savings clause. The insurance regulation is saved from preemption by the risk of savings clause, but the state can't regulate a plan document because it doesn't solely regulate insurance. The state can't regulate a summary plan description. So what this case does, if it is allowed to stand, is it provides the framework for any time an insurance company wants to avoid state regulations. It simply puts the differential clause someplace else, maybe an app, maybe a web page. MetLife has tried this in other jurisdictions and been rebuffed, and I would urge the court to do it here. Thank you. Thank you. Thank you. May it please the court. Linda Moore, representing Metropolitan Life Insurance Company. The sole issue in this case is did the district court correctly determine the judicial standard of refute and that it was abuse of discretion? And the answer is yes. In making this determination, the district court took an orderly two-step process. First, it determined, did the plan sponsor through the terms of the ERISA plan vast MetLife with discretionary authority? And once that it determined that it did, it then looked at the two state laws and said, what state's law applies in determining whether a state's insurance law banning delegation clauses applies? The district court took the right steps, and its opinion sets out the correct analysis. With regard to both of these issues, Mr. Grice is asking the court to ignore clear, unambiguous terms of the ERISA governed plan and well-established Fifth Circuit law. Let me say that if California's ban on discretionary clauses, which was applied in this case, was as broad as the Texas statute, Mr. Grice would not be here today complaining. In considering whether the plan grants discretionary authority to MetLife, the Supreme Court has stated that the plan is the center of ERISA, and its statutory scheme is built around reliance on the face of the written plan documents. Further, this court has stated over and over, when interpreting an ERISA plan, the provisions are read not in isolation, but as a whole. Google has a very detailed plan document. And while there may be four relevant documents here, these documents are component parts of one unified plan. Counsel, if the discretionary clause appeared in the Certificate of Insurance, would Mr. Grice prevail? Your Honor, the discretionary provision would not be, I don't think, in the Certificate of Insurance or the insurance policy, because that's the insurance document. Here, it's the plan sponsor who put it in their document. And it's the plan sponsor that determines the terms of the plan. I understand. What I'm asking is, suppose that it was in, instead of this sort of put it in one document, but not the other, then read them all together and incorporate by reference. If it had been in the Certificate of Insurance or in the insurance document, I guess it doesn't really matter, either one, something subject to the Texas Insurance Code, would Mr. Grice prevail? Because it would be prohibited by Section 1701.062. No, because under the Forum Selection Clause in the plan, California law applies, which also bans discretionary clauses. But as Mr. Rocha stated, it's limited to California residents. So what if, can we take a risk out of this for a second and just think about it as a normal insurance case? So in a normal insurance case, could, because MetLife, I assume, provides those insurance products as well, not just ERISA products? No, it no longer does provide individual policies. It's spun that off to Bright House. Brilliant. So let's say Bright House, or pick a different life insurance company. If they tried to put a discretionary clause in an insurance contract, I assume that would be prohibited by Texas law. Interestingly enough, I don't think discretionary clauses are insurance provisions. In the ERISA context, they come, obviously, from trust law. But I'm not sure you would ever see discretionary provisions in an insurance individual policy, but yes, I guess. Because you wouldn't have a fiduciary that would be doing the discretionary decision making. Correct. Fair point. So what, in your view, does the Texas law prohibit, then? If it wouldn't prohibit, it obviously wouldn't apply in a non-ERISA context for the reason you just gave, which is there's no fiduciary to be making the discretionary decisions. And it also can't apply in ERISA. Then what does it mean when the Texas legislature says an insurer may not use a document that includes a discretionary clause? Just what it says. And in cases, ERISA cases that I have that are governed by Texas law, we can see that it's a de novo review. But here we have the forum selection clause, which is what makes this case apply California law. And so what are the limits, if there are any, on using a forum selection clause? As he points out, Mr. Grice points out, he has no connections to California. The plan wasn't issued in California. He was working and providing services to your client, I suppose, the employer in Texas. Actually, the plan was issued in California. And it even says in the policy that the policy is issued in California. When we say policy, you mean the insurance policy? Yes. What Mr. Roach says in his argument is trying to say an insurance policy was issued to his client. But that's not true. This is a benefit plan that covers Mr. Grice. It has the formal plan document, which has forum selection clause. It has the SBD, which has forum selection clause. And then it has a MetLife policy that funds the disability benefits in this case. And then it has the MetLife certificates of insurance, which, number one, says it's a part of the policy, which includes the forum selection clause. And it provides the claim procedures and the coverage for LTDs. And I want to make sure I understand what you mean. You keep saying forum selection, but you mean choice of law. I'm sorry. Right. Yes, you're exactly right. There's no dispute. I'm sorry, I misspoke. Well, we're cool with the forum. Everybody's happy to be here. We're fine with it. Yes, I apologize. And I don't think I made that mistake in my verdict. Choice of law, yes. So it's undisputed that the Google plan makes grants of discretion to the plan administrator and the claim administrator. In the two documents prepared by Google, the plan document and the SVD. Mr. Grice admits at page 15 in his brief that the plan document includes a provision conferring discretion to the appropriate administrator. Does any state in the union allow a discretionary clause in insurance policies? I'm sorry. Does any state in the union allow discretionary clauses in an insurance policy? In an individual policy or in a policy with ERISA, yes. In fact, I think there are more that don't ban discretionary provisions than there are that do ban discretionary provisions. I'm sorry, did that answer? Yes. OK. California bans them, but only for California residents. Yes, that is correct. And so under the Google plan, which is in California, as Mr. Roach pointed out, their own employees there, there would be de novo review. But in any other state, it would not. It would be abuse of discretion. Are you aware of choice of law cases that say that either as a matter of contract drafting or as just a matter of a court interpreting a choice of law clause, as we have in this case, that state A has the power to make the law better for its residents than it is for everybody else subject to the choice of law clause? It's an interesting choice of law problem, because I get it. You wrote the contract, and I understand why you would write it the way you did. But it then puts us in a situation where we have to choose to apply a law that hurts Mr. Grice in a way that it wouldn't if we were in California, which is sort of the opposite of the way this normally works. Normally, when you do choice of law, we're supposed to treat it as if we were in California, applying California law. And this is interesting, different. Are there courts that have addressed this question? Not specifically, except that I think that this court has touched on this. The Supreme Court has stated multiple times that employers and plan sponsors are free to put discretionary authority provisions in their benefit plan. So there's no question that the provisions in benefit plans are enforceable. Here, the alleged lack of uniformity that I believe is your question and that Mr. Grice complains of is not because of MetLife's claim determination or the terms of the plan or the district court's decision, but by the reservation of the business of insurance to the state by a risk of savings clause. In Arianna M. versus Humana Health Insurance, this court noted that the fact deference is available in some states and not in others is, quote, a difference rooted in the policy choices of states, differences that are expected and honored in our federal system, and not based on inconsistent court interpretations of the same law. But you appreciate the oddity, right? So there obviously is a savings clause. We're generally, in ERISA, supposed to be interpreting the insurance products consistent with Texas insurance law. But in this case, you're asking us, and the district court did, apply an insurance law that exists in no state. Does that make sense? This is not an insurance. The insurance product that we're talking about would not apply in Texas. Obviously, we just went through that. It also wouldn't apply in California, right? Because if we were in California talking about California insurance, they would get the benefit of the prohibition on discretionary clauses there, too. So it's only because we're adopting California, using a choice of law clause to look to California law, that we are then hurting Mr. Grice in a way that no state would hurt him. And we're using choice of law principles to do that. So that does seem hard. But the court has, and I understand the court's point, but I think it has to look at the Fifth Circuit's decision in Reitinger versus Healthy Alliance Life Insurance, which is very similar. In Reitinger, the policy for the plan was issued and sold in Missouri to a Missouri employer. And the certificate of insurance stated that, quote, the laws of the state in which the group contract was issued will apply. So that's basically what we have here, except California. Based on these factors, this court stated that Missouri law applied. There again, hurting the resident that was bringing this. And as the district court discussed in its order, this court specifically held that the Texas insurance code prohibition of delegation clauses does not apply where the law of another state governs the ERISA plan. So I think you have to just follow the law. I mean, sadly, there's inequitable results. But this is, I think, a very, the terms of the plan here with regard to discretion, with regard to incorporation, and with regard to the choice of law are unambiguous and very well set out. Yeah, I appreciate that. Do you happen to recall if Missouri law would have treated Missouri residents the same? I don't. I do not in that. And I don't know that the opinion specifically went into that. Granted, this California statute is a bit unusual. It's not like the other ones that I've seen that are generally as broad as the Texas one. It's unusual because it bans the discretionary clause only for its own residents? That's correct. Yes, Your Honor. Yeah. I don't understand the policy choice that the legislature made there. I mean, it's undisputed that California law applies in this case via the choice of law clause. Is anybody contesting that? There are, no, I think if you look, there is one specific case that we cited in our brief, which I believe is a Second Circuit case, that didn't give a whole lot of analysis, but made it clear that California law was there. I'm just trying to figure, is this a choice of law case? The choice of law issue here determines the standard of, I guess, review, as we're calling it, for the claim. Discretionary versus de novo. Right. The judicial statute. Are you also arguing that it doesn't really matter, the standard of review? Because his claim would fail regardless. Well, we don't reach that point here, but if that issue was before it, I would. Yes, absolutely. I'm just asking a question. I don't recall. Are you arguing that in your brief? No, because we don't reach that. But, and that's why we filed these documents, to have the standard of review applied. But I do believe, based on the terms of the plan, with regard to the coverage, that Mr. Bryce would not have received LTD benefits. There were evidence in the record that he went hiking, that he went walking. So there are things in the record that we think support our decision either way. From the perspective of a choice of law issue, I mean, Google is a California company, right? Correct. And the policy was issued in California. Now, I understand Mr. Bryce is a Texas resident, but under choice of law principles, it doesn't immediately occur to me why the issuer of the insurance policy couldn't choose to apply California law to the policy. Am I right about that, or am I missing something? Well, I mean, the connection, the insurance policy is not to Mr. Bryce. It is to Google. Yes. And so all the connections, and there are cases that don't have choice of law rules, that talk about ERISA plans and the connections being where the plan administrator and sponsor is, where the insurance policy funding, the benefits, was issued. And those are all issues or factors where courts have determined that that state, where the plan is, should apply. That's just a typical choice of law problem for a contract, right? Yes, sir. Yes. Yes. Besides Reitinger discussing the choice of law rules, this court has also discussed the efficacy of choice of law rules in two other cases, Jimenez and Singletary versus USP, UPS, excuse me. In those cases, the court, and I don't think the court has specifically determined which of three possible approaches could be used to determine the choice of law rule. Because in those cases, Singletary and Jimenez, the court said that the claimant had the burden to prove that the application of the choice of law was unreasonable. In Jimenez, the insurance company sought to enforce the choice of law provision and the ERISA policy that stated this policy is delivered in Texas and is subject to the laws of that jurisdiction. Mr. Jimenez argued similarly to Grice's argument here that the court should apply Louisiana law because he lived and worked in Louisiana. And his accident occurred in Louisiana. Jimenez also argued that Louisiana law and Texas law treat, which was the issue, illegal act exclusions differently. And he lived, worked, and became disabled in Louisiana. In rejecting those arguments, this court stated that Jimenez failed to cite any legal authority to support his claim that a difference between Texas and Louisiana law is sufficient to void the policy's choice of law provision. The court went on to say, what the effect of this is, Google's chosen a state, California, but in all the other 49 states, MetLife has discretionary calls. That is correct. Based on the quirkiness of California's decision. Well, it may not be quirkiness. It may be a conscientious decision. It might be. But as I said, I'm not aware of any other discretionary ban that is so limited. So generally, we are dealing with a de novo review. As stated, California has a significant relationship to the plan and the plan benefits. The situs of the plan is California, the policyholder, plan sponsor, and Grice's employer, Google, is in California. The plan administrator is in Google, and the policy was issued for delivery in California. The Google plan has a valid and lawful grant of discretionary authority to MetLife, and the choice of law provisions requiring the application of California law must be honored. So we would ask that the district court's decision be affirmed. Thank you. Thank you, counsel. Judge Duncan, you raised a question. You made the point that isn't this a typical choice of law question. I respectfully disagree that it is. My point is simply that I remember taking Conflicts of Law in law school, and there is a chapter in the book on contracts. Sure, of course. And so you make these, in the restatement, there's a multi-factor test. There is for everything in the restatement. Of course, but really. In Louisiana, you look at a code, because Louisiana's got better law than the other states. I understand. And you look at various factors. And that's my only point. And my point, when I say it's not typical, is we're not looking at a choice of law clause and determining whether it should be applied or not. There is no choice of law clause. OK, that's what I was going to ask you. If you could just sort of fill in the blank. The district court erred because, fill in the blank. Because. It needed, the district court needed a choice of law clause in the Certificate of Insurance in order to get around Texas statutory law banning discretionary clauses. So you're saying the choice of law provision for California law shouldn't be applied? Correct. OK, and why? Because it is not included in the Certificate of Insurance. And the certificate specifically states that this certificate is issued to you under the group policy that includes the terms and provisions of the group policy that describe your insurance. OK, that doesn't have a choice of law. And it does not have. So what's the difference? There's another choice of law for California. And you're saying they. The Certificate of Insurance was issued under a larger group life policy. The group life policy was between Google and MetLife. The only two parties, Google and MetLife. No Mr. Grice, none of the other Google employees. It contains a choice of law clause. The certificate which was issued under the group life policy states, this has the provisions of the group life policy that apply to your claim. And the choice of law clause is not in there. It's not included, which makes perfect sense because this policy has the regulatory language to be used in Texas, the language that Texas required. You wouldn't need it if you're going to apply California law. So this is not a typical choice of law clause, choice of law problem because we're not looking at a choice of law provision and deciding whether to apply it, whether it's fair, whether it comports with restatement, et cetera. We're saying we don't have one. Well, can we go get one somewhere else? Well, it's sort of a tripartite contract. Google contracts with MetLife to provide a certificate of insurance to its employees. But Google confers on MetLife discretion in deciding whether it pays benefits. Is that correct? The Google plan document confers discretion on the administrators of all 27 of its component programs, except the Google plan document also states, except for fully insured programs. It states that for fully insured programs, it's the terms of the certificate of insurance which govern. In other words, the Google plan document says we give discretion to everyone. And if there is a dispute, you have to look to our terms for self-funded component programs. But for fully insured programs, we look only at the certificate of insurance. And the certificate of insurance does not contain the discretionary clause. And Judge Oldham, you're absolutely right that it makes a huge difference whether Mr. Rice lived in California or Texas, because he would have won his case in at least this issue. This issue is on the standard of review. He absolutely would have won if he was a California resident. The district court said that. So yeah, you'd win if you're in California, but you're not. You're in Texas. So sorry. And the difficulty, I think, that you were having with this doesn't seem to make sense. How do we make this work? Brings me back to where I started, to why this was a very simple case that got really out of hand, because if you have an insurance policy, you ought to be able to look at the insurance policy and tell them what it covers. But in the district court's decision, you can't do that. You've got to look at four documents. Some of these documents are not even given to employees. The 327-page plan document, that's not given to employees. The group life policy between MetLife and Google, that's not given to employees. Yet those are where we put it. Does California law govern everything in that policy, or does Texas law govern everything in that policy? California law governs only the group life policy. It does not cover the certificate of insurance for long-term disability coverage. California law has nothing to do with the certificate of insurance, which is the, we're using these, I call it the certificate, because I keep saying the policy, policy. Well, there are multiple policies. California law has nothing to do with the certificate of insurance for long-term disability. And I am supposed to know that, because how am I supposed to know that? You know that because if California law was, excuse me, if the choice of law provision was going to be applied, we're going to look at California law, they would have put it in the contract. That gets back to your typical choice of law question. The first choice of law question you would ask, not the first, but salient one, is, is there a choice of law clause? Well, OK, your analysis is completely different if there's a choice of law clause. But there is no choice of law clause in the certificate of insurance. But the contract is not between met life and the individual, is it? The certificate of insurance for long-term disability is between met life and the individual. The group life policy under which this is just a component of is between Google and met life. But you say it's a component. I mean, isn't your client just a third party beneficiary? My client is a third party beneficiary of the group life policy by virtue of his coverage that was given to him under the certificate of insurance. So the actual contract is the plan, or is the metropolitan overarching life insurance policy? I think the contract in this context is the certificate of insurance, because that's what the plan specifies. The plan states that. But you agree that he's a third party beneficiary. I do agree that he is a third party beneficiary. He is not contracted directly with met life. Yes, yes, he's insured by met life. Yes, he's insured by met life. If anything, it's a contract of adhesions. Take what they give you. Oh, come on. Thank you very much. Thank you, counsel."
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"stt_transcript": "Good morning, Your Honors, and may it please the Court, my name is Armando Aguilar-Lopez, counsel for Petitioner Claudia Marilyn Saravia Martinez, and I would like to reserve five minutes for rebuttal. This case, Your Honors, is about the federal government's attempt to limit this Court's power to review executive action, and about three ways the Respondent seeks to do so. First Respondent asks this Court to overturn its own precedent and foreclose review not just of one case, but for all reinstatement cases, and consequently foreclose review of all the issues, including important constitutional questions, that arise in those cases. Second, Respondent asks this Court to limit its authority to include the doctrine of equitable tolling, and to do so in a way that will extend beyond the immigration context. And third, Respondent asks this Court to completely deprive Ms. Saravia Martinez specifically of any judicial review, and that's despite DHS's conclusion that she has a credible and a reasonable fear of persecution or torture. And why does Respondent ask this of the Court? Because back in 2016, Ms. Saravia Martinez failed to predict that almost ten years after her entry, the Supreme Court would issue a landmark decision abrogating this Circuit's long finality. Now, first on the jurisdictional issue, Your Honors, under the rule of orderliness, and in light of the strong presumption in favor of judicial review, this Court should reject Respondent's request to overturn its precedent. This Court's jurisdiction over reinstatement orders is consistent with Nasrallah, with Johnson, and with Riley. Nasrallah and Riley simply clarify that an order of removal is the order that does one of two things. It either concludes that the individual is removable, or it orders removal. As explained in our letter brief, the reinstatement order here does both of those things, but at a minimum, it's certainly the order of removal. And we know this because the reinstatement order itself states, and I quote, in accordance with Section 241.85 of the Act, you are removable as an alien who has illegally re-entered to the United States. I certainly understand you've got your withholding only claims. Those are pending, or maybe you've already begun to have proceedings on those? Yes, Your Honor, that's correct. Just a month or two ago? So the withholding only hearing, the final hearing at which it will be adjudicated, is currently pending. It has not happened yet. I thought something happened in January of this year, no? Yes, it was reset by the court because of logistical... So what would you want to challenge in the restatement? If you were able to challenge the reinstatement order, what aspect of it? There's not much to challenge. Well, in this case, Your Honor, we are not challenging the reinstatement order itself, at least not the factual determinations made there. We are challenging or seek to be able to challenge the fear-based claim that is a part of that reinstatement order. So it's a vehicle to keep your client here? Is that... Yes, Your Honor, it is a vehicle... I guess I'm saying, if we were to agree you get equitable tolling, what happens next as to the reinstatement order? Yes, so Riley did change the procedural process for claims like Mr. Rabin Martinez. One thing that Ms. Rolla has clarified, nevertheless, is that this court has direct review over CAT claims. For example, Mr. Rabin Martinez has a CAT claim that is currently being adjudicated by the agency. And what we would be seeking, if equitable tolling is warranted and found to be available here, is that this court employ a procedural device to hold, perhaps, this case in abeyance until review is completed at the agency level or before EOIR. And then at that point, if there is a challenge to the fear-based claim, Mr. Rabin Martinez be permitted to challenge that claim in this court. And so, just to complete the point about the removal order and why this court has jurisdiction under that definition, we know that the removal order encompasses reinstatement orders because without the reinstatement orders, DHS simply cannot remove the individual. DHS is required to undertake a process and make determinations before the individual can be removed. And for that reason, under Riley, under Ms. Rolla, under Johnson, a reinstatement order continues to be a final order of removal under that definition. And the Riley court clarified that that is all that is required. So at a minimum, it is a removal order and ultimately respondent here fails to meet the high bar that is required to meet to overturn precedent under the rule of orderliness. Okay. What I'm trying to understand, though, is even if 12b1 is no longer jurisdictional, it's still a mandatory rule. So why shouldn't that be followed? Yes, Your Honor. So it is a mandatory rule and this court did find so in Lau v. Bondi. But nevertheless, equitable tolling is available under Supreme Court precedent because here on the merits of the equitable tolling question, two presumptions are at play. First the presumption in favor of judicial review, and importantly, the presumption that we see in Irwin and in the Irwin line of cases that favors equitable tolling. And so yes, the mandatory label does something. It instructs courts on what must happen when three things are present, or three things are true, I should say. The petition is untimely, the government objects on timeliness grounds, and equitable tolling is not requested. But that is not the case here. Here equitable tolling was raised, and importantly in Lau v. Bondi that was not raised in that case. But it was a really long time after she came back in, and that's a tough one. So the amount of time that's transpired since she entered, Your Honor, is certainly relevant to the warranted question. But whether it's available, what the Supreme Court has done time and time again, is go through the factors that we see in cases like Boesler, cases like Harrow, well in that case, in the Harrow court, the court ultimately didn't actually decide whether equitable tolling is available. It remanded to the circuit court. But in cases like Boesler, in cases like Holland. Will it reverse the Federal Circuit and remand it? Certainly, Your Honor. Yes, it did. And in remanding, importantly, what the Supreme Court said in Harrow is that the government must nevertheless contend with a high bar that is the Irwin presumption in evaluating whether equitable tolling is available in that statute. And so here, would you agree the big issue here is what does Nutraceutical do with the Irwin presumption? And whether we can look to a rule to discern congressional intent as to whether or not Congress has decided to forbid equitable tolling. Is that the crux of the difficult issue here? So I don't actually believe that Nutraceutical poses an issue here, Your Honor. And the reason why is because Nutraceutical involved a procedural rule, not a statutory limitation. So therefore, the question is, can we discern congressional intent in a procedural rule that Congress didn't disapprove of? Because it became force of law once Congress didn't disapprove of it. Well, I think, Your Honor, there is something to be said about the Irwin line of cases where the Supreme Court has specifically looked at ordinary tools of construction, you know, history, text, to discern congressional intent and whether the presumption is rebutted. Importantly, the presumption was not present in Nutraceutical. And so the Supreme Court did not contend with the presumption and whether or not procedural rules could affect the presumption and the analysis that follows it. And so I think— So your cabinet, you're saying Nutraceutical dealt with one rule can't invalidate another rule. But it doesn't speak to whether a rule can give us insight into a statutory deadline? Is that your argument? That is the argument, Your Honor. And even if this Court were to find that the federal rules could say something about whether or not the presumption is applied in cases where there's a statutory deadline, I think hearing 26b specifically by its own terms would allow this Court to find that it is irrelevant to the 1252b1 deadline because it applies by its own terms to only rules and court orders. And we know that Congress—or that the rules made it clear when a statute was impacted by the rules because 26a, the prior subsection, which deals with computation of time, did make it clear that that rule impacts rules, orders, and statutes. But the word statute is missing in 26b. So by its own terms, 26b does not apply to statutes. And so for that reason alone, this Court should not include it in the analysis. Okay. What case do you want to cite for us that is the best case to say equitable tolling is available under 1252b1, very available, not just a little trickle out there? No, certainly, Your Honor. I think the one case would be Boesler. But the Court could also look at Holland, for example, and actually could also look at cases, the Supreme Court cases, where the Supreme Court has found equitable tolling does not apply because this statutory deadline is easily distinguishable from those cases. So Boesler, for example, relied on the fact that the deadline was short and that it was directed at non-citizens and only mentioned once. So in that case, the Court found that for those reasons, and among others that we detail in our briefing, equitable tolling was allowed and available. But the language of must be filed, for example, can also be distinguished to language that's used in a case like US v. Wong, where equitable tolling was also found. There, the language in the statute was shall be forever barred. And that is much more emphatic language than we have at the deadline in 1252b1. And unlike Rockham, for example, where the Court found no tolling was available, the deadline here has common and simple limiting language, as opposed to the deadline there where you had several exceptions. I think it was up to 16 exceptions allowed for the overall section that was at issue. And here, there are no exceptions that 1252b1 provides. Now importantly, the Court has also looked at administratability concerns when evaluating whether tolling is available. And here, those administratability concerns shouldn't be weighed against petitioners like Mr. Evan Martinez, particularly, as the Riley Court noted, where the government can do exactly what it did in Riley's case, or Mr. Riley's case. There, it waived timeliness because of the circumstances. And here, the government could also choose to waive timeliness for petitioners like Mr. Evan Martinez who were directly impacted by the Riley decision. I remember the majority, Justice Alito was saying the government might well want to stay the pending petition, but did the majority in Riley also say the government should waive the deadline? Yes, Your Honor. The majority, well, it was a suggestion that Riley should provide it. I know there were suggestions, but I thought it was more that these petitions should be stayed pending the withholding only proceedings. But does the majority specifically speak to and urge the government to waive the deadline in 2252? It does, Your Honor. And there are multiple suggestions at different parts of the majority opinion, and that is one of them. Okay. Now, courts have also looked at the interest at issue when evaluating whether tolling is available. And here, it cannot go unsaid that the interest in the judicial review of fear-based claims is particularly strong. Everyone makes mistakes, but here, if a respondent makes a mistake, someone can erroneously be deported back to a country where they are at risk of death or torture. And that is in direct contravention to the obligations that this country has made to people who are at risk of torture. And finally, Your Honors, as to whether equitable withholding is warranted. Is that your argument for why it was okay for her to come back even though she was told not to? Well, Your Honor, I think it's important to note that Ms. Saraven Martinez did, in fact, unlawfully enter. But she unlawfully entered fleeing persecution in El Salvador. And after she unlawfully entered, she availed herself of a process that Congress outlined for people like her. And I'm kind of wondering because, while, of course, I love America, there are other countries in the world. So why wouldn't she go to a different country if she didn't want to stay in El Salvador, go to some other country since she was told not to come here? It's not as if the world doesn't have other countries besides America and El Salvador. There's a ton of countries, some of which are nice. Of course, I think America's the best. I get that. But there are other nice countries. Well, Your Honor, to that, I'd say, so there's nothing in the record that indicates why Ms. Saraven Martinez specifically decided to come here to the United States. Well, she had been here and presumably this is where she conceived her child. Yes. Okay. And there was incredible fear determination that she would sound credible that after she was sent back to El Salvador, MS-13 threatened to kill her, plus now her child also, right? Yes, that is correct, Your Honor. So she's going to leave. And so she fled back to the United States. And I think it's important to note that Congress specifically allowed for this process to be undertaken after somebody unlawfully enters. And so the obligations that we have to protect people from torture were higher and were considered by Congress over just the mere fact that somebody enters and the country's willingness or desire to be able to remove individuals at an efficient rate. So do I understand your equitable tolling argument turns on Rule 26B being a rule rather than a statute? I think I heard you allude to that earlier. That is one of the arguments, Your Honor. What do you do with nutraceutical, which makes clear that, I'll just quote it, courts may not disregard a properly raised procedural rule's plain import any more than they may disregard a statute? Well, Your Honor, yes, a procedural rule should still be given a lot of weight. I think that the Court was silent as to whether that weight corresponds to the statute and whether it can prohibit a statute in the context of the presumption. OK, so it's not about whether it's a rule or statute at all. That's not doing the work. You're just saying Rule 26B is not clear enough? Well, Rule 26B, by its own terms, also doesn't apply to statutes. So even if this Court... Well, it applies to deadlines. Deadlines for petitions for review of agency actions, which is clearly the case. Well, Your Honor, I think that the word deadline is used, but in that same rule, you have the application only being in the only the application of the rule only being applied to the procedural rules and orders, as opposed to 26A, for example, that deals with computation of time, where statutes are specifically enumerated in what the rule applies to. Last question. Do we even get to this issue? Because it seems to me that Leal already holds that since the... I'll just quote it. Since the government did not waive the application of 1252b1 filing rule, and I assume you agree the government has not waived it, are they trying to enforce the deadline? Yes, Your Honor. It's correct that the government has not waived the deadline. So Leal says in that situation, quote, the mandatory claim processing rule must be enforced. Period. No exception. Your Honor, the period, the tolling... Period. No exception is fine. I'm adding the no exception, but it says this mandatory rule must be enforced so long as the government is asserting it, and the government has asserted it here. Yes, Your Honor. What's left of it, maybe you can take it on back, but Leal seems to cover this fact better. Well, I would disagree that Leal covers this fact better, Your Honor, because in Laos, the equitable tolling request was not raised. And I think what the court... Okay, fair enough, but there are any number of exceptions that may or may not have been Leal seems to say that so long as the government raises it, it must be enforced. Well, I think, Your Honor, in docket 131, the court can see that there was... You were talking earlier about we're not supposed to overturn our own precedent. Yes, Your Honor. So I think what is illuminating here is in docket 138 of Laos, the court can see that in an order where the court rejected a request for rehearing, there's a footnote in which the court said that assuming without deciding that equitable tolling is available, that that was foreclosed because Mr. Laos didn't raise it. And so I think there the court can find that it was specifically not raised in Laos, and therefore not decided. And I think those questions are left open for this reason. But the docket 138 doesn't cut against you? In other words, that issue was discussed in Laos, the notion that equitable tolling could have been asserted but wasn't. The court nevertheless... I wasn't on the panel, but the panel says, we're going to enforce this deadline. The only requirement is the government has to assert it. Well, no, Your Honor, because the court only enforced the deadline because equitable tolling was not raised. And I think the footnote makes that clear. We also have the Supreme Court, for example, in Portland County, Davis v. Texas, explicitly stating that it has reserved the question of whether mandatory claims processing rules are entitled to equitable tolling principles. And so at a minimum, the court has not squarely decided this issue, and it's an open question that Laos, for those reasons, does not decide. Okay. Unless there's other questions, you've saved time for rebuttal. Thank you. Thank you, Your Honor. And we will now hear from the government via Lindsay Corliss. Yes. Hi. Good morning. May it please the court, Lindsay Corliss for the respondent. This court should dismiss the petition for review or alternatively should deny it as untimely. This court lacks jurisdiction over this case for two reasons, and I'll begin with the statute, which at 1252A1, this court has jurisdiction only over final orders of removal. A final order of removal is not an ambiguous term, it's a term that has a definition in the statute. It is an order that concludes that an alien is deportable or orders his deportation. And since I rarely substitute... So you are asking us to overrule as a panel, President Fischer? We are. We are. And that's because something in Riley unequivocally overruled it? Yes. Okay. What exactly in Riley spoke to reinstatement orders? So this court has long acknowledged that reinstatement orders are not... No, I'm asking what in Riley speaks to reinstatement orders? Riley speaks to a strict fidelity to the definition of a final order of removal in section 1101A47. This court... But does Riley speak at all to reinstatement orders? To reinstatement? No. Guzman-Chavez discusses reinstatement. Riley is discussing whether withholding only, which is another sort of order that sort of looks a little bit like a final order of removal that courts were asserting jurisdiction over. Right. And we pointed that out. These things sort of look the same, but that doesn't sound like an unequivocal overruling. Well, so... Just because something looks the same as something the Supreme Court did, that's not an unequivocal overruling. The Supreme Court seemed to see these cases as linked. The three cases that the Supreme Court was finding on, Riley, Guzman-Chavez, and Nasrella, they kept citing back to their previous cases to say, we have been telling you courts that this is the definition of a final order of removal. So the Supreme Court at least saw those three cases as being linked, as saying that there is a definition of a final order of removal, and something either is a final order of removal or it's not. And Bhakta Bhai Patel, in the Second Circuit, did a very good job of kind of explaining that something either is a final order of removal or not. And then this court, in Ruez-Perez, in the dissent of that, Judge Oldham quotes Bhakta Bhai Patel and says that Congress did not grant the courts the authority over something that is sort of like a final order of removal, it granted it only over final orders of removal. So when the Supreme Court is saying things like cap protection orders, withholding only orders, or reinstatement orders in the context of, that was a detention case in Guzman-Chavez, although it did deal with reinstatement orders. When the court is saying that these do not meet the definition of a final order of removal, the Supreme Court is overruling this court's precedent that established that, that stated that you could still assert jurisdiction over cases that were not actually final orders of removal. And this court did state in several cases that reinstatement orders are not, the words that they used, literally, final orders of removal, that's from Ojeda-Tirazas. They have virtually exactly the same characteristics. They do, between reinstatement orders and final orders. Well, they don't, though, and a great case to explain the difference is actually Rodriguez-Ramirez in the Second Circuit, that was cited in a 28-J that we filed because it was a recent case that came out post-briefing. And they, the Second Circuit in that case really goes through why reinstatement orders are different from final orders of removal. Just that 28-J, I can ask them their response, but therefore, the Second Circuit's already ruled in your saying no jurisdiction over these? Yes. So, the Second Circuit has already ruled that reinstatement orders are not final orders No, but did it ever say it lacked jurisdiction to review? It didn't. So, the Second Circuit case was in the context Just a yes or no question. Oh, sorry. No. Okay. Would you like to, need to explain the context? No. I'm, you've just pressed time. I think the equitable tolling is a difficult issue. Do I understand your logic to be that you're primarily saying that a rule, a procedural rule that Congress didn't disapprove of, you can extract, you can see in that judicially created rule that Congress doesn't disapprove of, that evinces an intent to say that 2252's statutory deadline actually is forbidden from equitable tolling? Well, at least two circuits have held that. The Second Circuit and the Seventh Circuit have both held that nutraceutical abrogated that, which discusses a rule, nutraceutical discussed a rule as well, abrogated Irwin's finding. But... The Second... The Second and the Seventh. Okay. Is that... The Eleventh may have also, right, in an unpublished ruling? I'm sorry. I'm not recalling the Eleventh. Okay. I may be mistaken. But the D.C. Circuit's gone the other way. The D.C. Circuit did not. Are you talking about OHA? Nelson. In OHA, the D.C. Circuit. No, in Nelson. The D.C. Circuit. In the Nelson case. The Nelson case. I'm sorry. I'm unfamiliar with Nelson. But do you know that, oh, the Fed Circuit. I'm sorry. The Fed Circuit in OHA. Talked about this. It is... That case is cited in a footnote that we have, where it discussed Congress' intent with respect to that. I'm sorry. I actually... Let me quickly find it for you. I don't want to waste the time. It is... It's the D.C. Circuit Nelson decision, Judge Childs, rejecting the SEC's claim that 26B displaces the presumption equitable tolling is available. Okay. Well, then apparently there is a circuit split, but even if you were to apply the presumption in this case, and I'd be willing to, as a hypothetical, say, let's apply the presumption here, the Supreme Court has still said that it's only a presumption and it may be rebutted. And in this case, it is rebutted based on the emphatic language of the statute, in addition to the fact that Rule 26B has always been cited as a limit on that. So, Stone... And how would you respond to their comments about Harrell? Because the Solicitor General in Harrell specifically tried to use 26B as to a statutory deadline, and the Supreme Court didn't adopt that. Well, so this... In Stone... No, in Harrell. In Harrell. Okay. Well, you know, I don't recall the specifics of Harrell, why that was rejected at the time, but it was likely based on the language of the statute, because 26B actually directs the courts to look to the statute. 26B says, unless it's specifically authorized by statute. So when you see 26B, it's not a complete prohibition, it's a reminder to go back to the statute. So if we look back at what the statute actually states as far as that deadline, it says that a petition for review must be filed not later than 30 days after the issuance of the order. So we have two imperatives there, must and not later than. And that must is quite intentional. It's actually... It was amended. It used to say may. It used to be the permissive, and they changed it to the imperative from may to must. Additionally, this is in a statute that has other language right there in it, other ways of setting deadlines, and other ways of telling petitioners how to file their petitions. It says that they shall file it in the correct venue. The venue uses shall instead of must. Then they discuss the filing of briefs. I've just checked. The reason I was asking you about Harrow, Supreme Court, Nelson, D.C. Circuit, they're both in the briefs of opposing counsel. You're not familiar with either of those cases? I'm sorry. I'm not recalling them right at the moment. I apologize. I'm happy to talk about them. You know, I can file a response to their court. I'm also happy to discuss several of the other cases that they discussed, like Holland, Bosher. Maybe just looking at Riley. Justice Alito writes for six justices, and he seems very aware of and concerned about the predicament someone like this petitioner's in. Long-standing Supreme Court law, you can't petition, then all of a sudden the court changes its mind. Sounds like a classic equitable trap. And then the justice, even in an advisory manner, says the government might want to waive the deadline. The government can't. But let me just ask you, therefore, aware of that advice as to the same issue. You are not waiving the deadline here. Is that correct? Yes or no? It's correct. Okay. And the second question is, he also said in other room, if the government chooses not to waive, so the trap is there, circuit courts might want to consider staying the petition to allow the other. What's your thought on that? So first, that was the response. Before Riley, the government wanted the courts to find that they could review the withholding only and that that would have been a timely order. That was what both parties, both the government and petitioner, wanted that, and that's what they argued before the Supreme Court. What the majority is actually responding to is the dissent, where the dissent is saying this is creating a logistical nightmare, including for the government. And so the majority is not necessarily saying that the government must waive. It's saying, one of the ways- It's saying it uses sort of admonitory terms. There are two ways to solve it for utterly innocent litigants. Someone like this that couldn't have petitioned in time. There are two ways to avoid just that little window of litigants that are trapped. One is the government waives. The other one is that the Court of Appeal stay the matter. Why would you object to either just for a litigant like Ms. Martinez? There are a number of reasons that go into whether or not the government waives. You must have a standard as to whether you'll waive the deadline or not. What's the government's standard when it waives this deadline? Well, prior to Riley, we did not have Riley as a guide to understand that this wouldn't be- No, I know, but you do now and you are waiving in other cases. So what's the standard and why is it inapplicable to her? We are not waiving in any cases currently. Are you confident of that representation? I'm confident of that representation, that currently and going forward, or at least for now, we are not waiving. But she does get review. She is currently in withholding only proceedings. But the statute states that when someone is in reinstatement proceedings, they do not get removal proceedings. So it doesn't make any sense to say that she would- When you say she gets review, you're also not denying that the government could choose to deport her back to El Salvador and the review would be when she's there. I don't- she is currently before an immigration judge and she can't be deported to El Salvador until her withholding only proceedings are over. Okay, that's very important for me to hear. She cannot- No, she's not going to be removed without her withholding only proceedings to El Salvador, without her withholding only, because she has expressed a fear to El Salvador. And she gets two levels of review on that, before an asylum officer, and then after that, before an immigration judge. And so that's part of the reason why, you know, this is a 2016 order and now here we are- Okay, so she- okay. Ten years later and she is still going through proceedings. I wanted to address a little bit Navrat, which is a recent Ninth Circuit case that was also filed in 28J. It came out about 10 days ago. In the- what the Ninth Circuit said, that case was a very similar sort of case, where there was a reinstatement order and there was a withholding only order that was also added to it once that was decided. What the Ninth Circuit there said, that there has to be an actual dispute within the four corners of the actual removal order, which the Ninth Circuit considered to be the reinstatement order. We would dispute that in this case, but the Ninth Circuit considered that to be the reinstatement order. The Ninth Circuit ended up dismissing that case, because there wasn't a colorable claim regarding that order. That is the second reason why this court lacks jurisdiction over this case. It's because there's been no colorable claim that's been raised regarding her reinstatement order. Since you went back to the jurisdictional issue, is the government thinking about pursuing en banc here, just to- I know you- there's a debate about whether it's foreclosed by precedent. En banc would obviously take care of that. Is the government seeking en banc? We didn't- we have not sought en banc, primarily because we believe that those three cases- I understand you think that you can get around the precedent, but en banc would avoid that argument altogether. It would. I mean, en banc- But you're not asking us to go en banc. I do not have authority to personally ask you to do that. So- That's why I'm saying it out loud. So, well, I mean, that is a possibility that you might consider. I am not- so these three cases do definitively state what is a final order of removal. This court has said repeatedly that a reinstatement of removal order is not a final order of removal. Can I go back to the en banc point? The reason I ask if the government's going to ask is, on the one hand, I could not agree with you more. Could not agree with you more that we can go en banc sua sponte. Our rules say so. Our rules in fact make that emphatic. Having said that, there are cases where I've tried to go en banc sua sponte, and I've been told by colleagues that I'm speaking in terms of public opinions, not private conversations. Nobody asked for en banc. That's an argument not to go en banc. I agree with you that that is actually contrary to our rules, but there are judges on this court who have said that. We are not- So without an en banc petition, notwithstanding the rules, that is apparently an argument against going en banc. So I just want the government to know that. Okay. I will bring that back to my office when we consider how to handle this case. And we are not arguing- Yeah, I'm not hearing you. Yeah, the government is not opposed to en banc. You're saying we can do it sua sponte. My point is, don't count on sua sponte, because in cases like Mies v. Becerra, people have said, actually, without a petition, that's an argument against en banc. That may be wrong, but judges can be wrong. Although we have that sua sponte, but just not very much. Well, in Ruiz-Perez, which was actually issued, it was issued in 2023, so that was before even Riley. In the dissent, in Judge Oldham's dissent, he states that he believes that just Chavez-Guzman and Nasrallah alone were enough to either say that your precedent in Ponce Osorio had been overruled or to go en banc. So, at least one judge on your court has, in the past, stated that those two cases alone were sufficient to either find that your precedent had been overruled definitively by the Supreme Court or- Right, but that's not a panel precedent. Yes, I'm just saying that that's, I mean, perhaps you find your colleagues more persuasive than me. So, you know, then you would- Well, I'm actually not following you, though. The fact that it's persuasive is the reason to go en banc. Now that that panel, we're not on that panel where you're talking about the Oldham dissent. That is now a binding precedent on this Court. Well, right. So, you would have to take that en banc or take this case en banc. Right, although that case- But ma'am, just to be clear, right? Well- So, it doesn't matter how persuasive I find that dissent. I'm now bound, as is every member of the Court, by the majority opinion from which that judge was dissenting, correct? Well, you're bound by consensorial. I will just say that the majority agrees with you that a reinstatement order is not a final order of removal. They said that, but then they also said that the issue wasn't briefed by either side and that they could find separately, they could dispose of the case because what the person was asking for was cancellation of removal, and they said cancellation of removal isn't available in reinstatement proceedings anyway. So, that's what we're going to find on. But they agreed that reinstatement orders are not final orders of removal. So, everyone on that panel agreed that reinstatement orders are not final orders of removal, and this Court has consistently said that they're not final orders of removal. They were just asserting jurisdiction over them in the same way that this Court was asserting jurisdiction over cap protection orders and withholding only orders. The Supreme Court has been consistently stating in those three cases, these courts, you need to actually look at the definition of a final order of removal. It's defined in the statute. It doesn't mean, like, it either is a final order or it's not, just like the Second Circuit said in Bakhtbhai Patel. But if there are no other questions, I will thank you for your time. What's the status of Riley on remand? Do you know? What is the, I don't know. It has not been decided on remand yet, in the Fourth Circuit. So, it's still with the Circuit? It'll be with the Fourth Circuit. And, okay, they'll be addressing some of these issues? They may, yes. Do you have any disagreement with opposing counsel's characterization of what was found credible as to Ms. Martinez? Well, there's no, so the asylum officer, so she hasn't gone through her immigration proceedings. I know, but the asylum officer did find her credible as to her fear, yes? Well, they gave her a credible fear finding from an asylum officer, so she's going through proceedings. I'm not, this is not about, I mean, jurisdiction is not about what she, whether or not she's telling the truth. If she, you know, she was found credible, but she's now in and withholding proceedings, and that is the process. Congress told DHS to promulgate regulations on how to deal with reinstatement cases, because they don't get removal proceedings. And this is the process that she's going through. And I have only 20 seconds, so, unless there are other questions, thank you for your time. Okay, thank you. We'll now hear the rebuttal. Thank you, Your Honor. So, I'd like to just make a few points to address what my friend on the other side just said. So, Octify, yes, indeed, did discuss final orders of removal, but I think what's important to note there is that ultimately the court found that it, or it affirmed that it has jurisdiction over reinstatement orders under 1252A1. Now, as we noted in our response to the 28-J letter for the Rodriguez case that was cited by Respondent, Respondent, again, mischaracterizes that decision. There was no discussion of jurisdiction in that case. The court, the Second Circuit in that case, was merely describing the differences between a immigration judge order, for example, and a reinstatement order in that context, because it was about whether Respondent in that case was prejudiced, and whether the fact that there was a subsequent reinstatement order could affect the prejudice analysis in that case. So, as any circuit yet said, it has no jurisdiction to review a reinstatement order. The Ninth Circuit in Navarrete, Your Honor, has found, because of a different jurisdictional issue, and I'm ready to address that as well, but no circuit has found that it does not have jurisdiction over a reinstatement order because it is not a removal order under the definition clarified by Riley and Ezrala, and as noted in our brief. This is then getting to the equitable tolling issue. You probably have a few comments you want to make, but there is the representation, and I assume Ms. Corliss is from Office of Immigration Litigation, that your client will not be removed. Your client will stay here until the withholding-only proceedings. So, isn't that essentially a functional equivalent of tolling? Well, it is not, Your Honor, because there is an open question as to whether she would have judicial review of her fear-based claim in this court if the government were to continue on with withholding-only proceedings, and then ultimately the immigration judge finds that there is no fear-based claim. And I think that's what the Supreme Court in INS v. St. Cyr, and also in Colcano, the companion case in that case, was talking about when it described the constitutional question that would be posed if there was no avenue to review the agency decisions if there was an error. And in this case, it is unclear yet whether there is an error, and so we are seeking equitable tolling to have the case now petitioned in light of Riley. That's why maybe the opposing counsel may be right. What's the colorable claim against the reinstatement order? Well, Your Honor, our position is that there is no need for a colorable claim. So, in the Ninth Circuit decision, that is not binding and certainly should not be persuasive because it is inconsistent with Supreme Court precedent, the Court heavily relied on Justice Thomas' concurrence for the proposition that you must substantively challenge the final order of removal. But there is nothing in this, Raleigh nor Riley, that even contemplates a substantive challenge to the removal order itself. In fact, Justice Thomas' concurrence, as explained in our letter brief, was looking at a procedural defect that it saw in Mr. Riley's case. There, Mr. Riley had a petition for review of a Board of Immigration Appeals order, not the final order, which Riley decided was the final administrative removal order, the FARO, in that case. Unlike Mr. Riley, Ms. Saraiva-Martinez has done exactly what the Supreme Court said she should do. She filed a petition for review of the final order of removal, which in this case is the reinstatement order. And the CAT claim and her fear-based claims under A4 of 1252 and B9 tell the courts that the CAT order and other issues that are a part of the final order of removal do have the opportunity to be reviewed by the circuit courts. And so, in this case, in addition to what the statute says and what Ms. Raleigh and Riley says, we also have the foreclosure of review creating not only constitutional questions, but going directly against the presumption in favor of judicial review of administrative action. And I think if there's any ambiguity here, the presumption in favor of judicial, of review of administrative action puts that ambiguity at rest and allows the court to find that it not only has jurisdiction, but that equitable polling is warranted. Now, as to Nelson, Your Honor, the question that you asked responding earlier, in fact, Nelson, which came after the court's decision in Harrow, found that even though they were presented with an argument that 26B and interstitial foreclosed tolling for a statutory limitations period, they rejected that argument and found that tolling was nevertheless available for the statutory limitations period. Without much analysis and not citing Harrow, because all Harrow, the court just chose not to address the Solicitor General's argument, did it? Yes. Yes, Your Honor, that is correct. We chose not to address it. But I think it's important to note that in remanding, the court nevertheless acknowledging the specific page of the brief in which that argument was raised said that on remand, the government nevertheless has a high bar pointing to the Irwin presumption. And I think in this case, when we apply the bar and we go through the factors that the equitable tolling is warranted here. Okay. We appreciate both sides' arguments and we will now take this case and decide it. And we're going to take a short break. We'll be back at 1030 for the final argument."
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"stt_transcript": "which is case number 25-50293, FBCC CityPoint v. Austin et al., City of Austin et al. And we'll begin with Kevin Tirasas. Tirasas, Your Honor. Thank you. Tirasas. Yes, Your Honor. Okay. May it please the Court. There are three primary reasons the District Court erred in granting summary judgments. First, the violations at issue in the Buildings and Standards Commission appeal are different from those used to place FBCC on the repeat offender list. Because they have a different set of operative facts, res judicata could not apply. Second, the Buildings and Standards Commission did not have jurisdiction to place FBCC on the repeat offender list because it is statutorily limited in what it can do. As such, FBCC's appeal of the Building and Standards Commission's fines did not involve and could not have involved a challenge to the repeat offender program. Third, refu of the Building and Standards Commission's fines was statutory limited to the decision that the Commission panel made. And FBCC could not obtain the relief that it sought in this lawsuit. As an example, FBCC could not have enjoined the repeat offender program or actually received any other injunctive relief. I want to first start with the different set of operative facts. And one thing to note here is that the city has gone kind of back and forth in its briefing and in the summary judgment arguing that Winter Storm Uri had nothing to do with the underlying repeat offender program and then at one point suggesting that maybe it did. I think it's important to look at the record. Well, I do see inconsistency, possibly, but I think they largely agree with you that the underlying violations, 2019-2020, really didn't implicate Uri. That would suggest your argument. But in your pleadings in the two lawsuits, it's a copy-paste practically. In other words, the second lawsuit embraces, not just in the statement of the case, but in the actual causes of action, precisely the same one-transaction operative theory. I don't, respectfully, Your Honor, I don't think that we're embracing a one-transaction operative theory. But you say all of this came about because they wanted to punish us for our lack of response to Uri. We say, yes, they wanted to punish us. That's what you said. Absolutely, Your Honor. That is different from the BSE fines. They were an issue in what was being challenged in the state court. What was challenged in the state court was very specific to those violations, and it's very specifically listed in the state court. I guess I'm saying, you know, normally when we're looking at claim splitting, we look at your two lawsuits, and in this case, when you look at the two lawsuits, not only is there, as I said, copy-paste, the same facts are described, the same theory is that the city had a political campaign out to get you. So why doesn't that alone, just the way you pled it, trigger race judicata? Because, Your Honor, I think that those are atmospheric facts that don't go into why FBCC was placed on the repeat offender program, and I think you have to look at what relief that is being sought in the case where we are very specific in the complaint, for example, record pages 151 and 152, to the effects of the repeat offender program. Comparing that to the petition in the state court, record 2985. Yeah, but 151 is what I was looking at. You stated there, this is in the second suit, punishing a landlord for property damage caused by a natural disaster. There is no rational relationship. So there, too, even in that claim one, and on the preemption claim, again, you say the city is penalizing us for failing to repair damage caused by a winter storm. So I'll press the other side, but it does look like your pleadings mixed the two. And, Your Honor, what I would say is that in terms of our pleadings or asking about the repeat offender program, the issue arises in the later actions in terms of keeping us on the repeat offender program and moving forward with that. But that is a separate thing from the fine themselves. And one of the things I would point out here in the difference between What's your best Texas case on race judicata, that even if it looks like the two separate lawsuits are cross-incorporating identical facts, nevertheless you look behind what's pled to ask, well, in truth, are the violative acts the same or not? I would say the Whalen case, Your Honor. In the Whalen case, what happened was it was actually kind of a little bit of a reverse where the city of Houston attempted to, what the other side said, was to basically use the same operative facts for different sorts of relief. And what the court there said, and it cited also to the Jamestown case, which is a Fort Worth case, which is 83 Southwest 3rd, 376, and said that there's a difference between what the BSC panel can do versus what a municipality can do. It's completely separate. I won't say completely separate, but it's separate relief that can be invoked between either one. And so that said that res judicata did not apply in that circumstance. But that's a separate argument than the pleadings aren't one and the same. This is the separate argument I thought that you were making, is you couldn't even have brought your constitutional claims. That's correct, Your Honor. That's a separate argument. But that responds then to our court's decision in the Cox v. Neuse's case where we, let me just read it because this seemed pretty conclusive. Texas precedent makes clear constitutional claims can and should be brought in state court reviews of civil service commission findings. Yes, Your Honor. And in the Cox v. Neuse's case, that was involving employment action concerning First Amendment and issues there. And the difference between Cox and City of Dallas and those others is that in those cases, if they had won before the commission, it would have resolved the issue because the employment action would have been reversed. Here, we won before the commission at the state court and it didn't resolve the issue. We could not resolve the issue there. You won as to the URI violations and it was no analysis at all. It was just vacated, right? That's correct, Your Honor. That's correct. But those were resolved in terms of the violations, but that was separate and apart from the repeat offender program, which is what is being addressed here. But, I mean, res judicata is not just the exact same thing has been filed again. It's that it could have been filed. Why could it not have been filed? Because, Your Honor, the BSC was limited in jurisdiction and the review of the orders were limited, specifically in the statute under 54.036. Sorry, it's Texas local government code, 54.036. It says what a commission panel can do. It can do things like order repairs, declare a building substandard, order the immediate removal of persons or property. It does not and cannot address something like the repeat offender program. It is not allowed to do that. I was looking at 54.039. You're citing 54 what? 036, Your Honor. I'm going to get to 039 right now as well. In 54.039, that's the judicial review of the BSC orders, and it's very important here because that says specifically that court action is limited to directing a writ of certiorari to the panel, and it describes the panel as being the commission panel here. In addition, it says that it limits review to a party that is aggrieved by any decision of a commission panel. It is also limited, of course, to substantial evidence review in this, and so there's no discovery. There's no anything else that can happen in there, and so the BSC fines not only being separate in terms of what established the repeat offender program, which is what is being challenged here, but also the fines themselves are limited to what the BSC could do, and that's what was being challenged. That's the only thing that could be challenged there. This was not the same nucleus of operative facts as you find in the files. Two different arguments, right? One, you're saying not seeing nucleus of facts. Difficulty with that is you seem to cross-incorporate both. Totally separate is you couldn't even, I guess, in May of 2021. Yes, Your Honor. Because the ROP, that's how I think of it, gets dropped on you in March. Right. And then the URI violations are alleged somewhere in that time period too, right? After, but yes, Your Honor, around there. Okay. I mean, some of the violations. And then you file the first suit maybe June, so you're fully aware of the ROP, and you are saying you made a decision not to aggregate because the BSC couldn't even consider it. That's correct, Your Honor. And your best authority besides citing to us these municipal regulations that I'm, you know, we'll hear from opposing counsel, but do you have any case that clarifies exactly the point you're making, that the BCS could not hear the constitutional attack on the ROP? You understand my question? Yes, Your Honor, in terms of could not hear, I think going back to the Whalen case again, where it talks about how the relief that was requested in Whalen at that time could not have been done in the earlier proceeding, in the administrative, the panel proceeding before, and so that's why there wasn't res judicata there. All right. So my question, tell me if it's not an intelligent one, and it's a divisibility issue too. Number one, you're saying not seeing those facts. Number two, you couldn't even go on. That's why you brought the second suit. That's right, Your Honor, and also that the commission itself, and sort of a third point on that, the commission itself couldn't, it was not involved. There's no evidence that it was involved with the repeat offender program. And I do want to highlight when we're talking about the same set of operative facts here, that this is summary judgment, and so if there's a fact question as to what was, whether it was the same operative facts or not, then that's something that would say that the summary judgment should have been denied there. This wasn't something where we've got some clear record that says the exact same violations were at issue or anything like that. Instead we have the opposite, where I believe that the operative violations that led to the repeat offender program, as the city will say, that that was different from what led to the violations from the commission. I mean, often we do see res judicata, and the critique of the party that's trying to avoid it is they lost once, they split their claims to have a second fight. Obviously here you won. Right. And there's no analysis that's brought over. But those, whether you won or lost, doesn't really affect our assessment of res judicata, does it? I think it does a little bit, Your Honor, because again we couldn't get the relief that was requested in, excuse me, we couldn't get the relief in the BSC suit. It didn't resolve the issue. That's different from the Cox v. Nueces case. That is different from the city of Dallas v. Stewart case, where we're involving a nuisance and a taking. And the court analyzed it and said, the Texas Supreme Court said that a nuisance is basically a form of taking. And if they would have won, if the claimant would have won there below and said this was not a nuisance so the house would have stayed standing instead of being demolished, there wouldn't have been a taking at all. I do think that it's important that we won below in the state court and that it didn't resolve the issue because it shows that it's not the same nucleus of operative facts there. Your Honors, I have about four and a half minutes left. I do not want to dismiss the issue of Mr. Thompson and his exclusion on there. I know it's not a major issue, but I want to make sure I'm not waiving that if there's any questions. The magistrate probed it a lot and pretty much, as I understand it, said I'm going to let you testify about the six million reputational injuries, but I'm not going to let you testify of something you have a, quote, Generally, yes, Your Honor, but what I would say, too, is that there wasn't a determination. I mean, that would have been for summary judgment where the court made a determination that those, that that fact meant that Mr. Thompson couldn't testify. And again, that's a summary judgment type thing, just like here. I mean, technically, Mr. Thompson was completely limited now because he can't testify at all since there's a summary judgment on Rose G. Thompson. He was going to testify there were how much of rental injuries? That's right, Your Honor. No, but how much just was it? What was the proffer? It was about $85,000. $85,000. Yes, Your Honor. As opposed to six million reputational injuries. That's correct, Your Honor. It was a very, very small issue on that, but also there was no challenge to his methodology. There was no challenge to his credentials. There was a challenge just simply to the underlying fact of whether or not this could even be damages. And that's something that is more appropriate for summary judgment where the court decides, oh, okay, claimant, you can't get, claimant, you can't get those damages. And therefore, Mr. Thompson, no one can testify about it. Right now, as it stands, people could potentially testify about that issue except for Mr. Thompson. And that wouldn't be, that's not what. It was undeniable they were suspended, and it's, I think, undeniable that the e-mail says keep on renting anyway. I thought his, once that became sort of apparent, I thought Thompson's response was, well, maybe some of the units actually weren't rented. In other words. That actually wasn't necessarily his response, Your Honor. What he said was, he said, no, I just did an analysis on November, December, January. What was vacated and what wasn't vacated. That's right, Your Honor, and took into consideration what would be vacated no matter what just from normal issues outside of this program. So all he was doing was simply calculating damages. He wasn't making an assessment as to whether or not the repeat offender program suspension actually was effective, wasn't effective, anything like that. He was just doing damages. And that's why the limitation was improper. It was better for cross-examination. And, Your Honors, I know that there is a number of different issues that were not addressed in the summary judgments. Our position, of course, is that because it wasn't addressed, that that is better for the district court to address in the first instance. And we would just point the court to the McClendon v. U.S. case, 892, F3rd, 775, as well as the PHH mortgage case, which is 80, F4th, 555. I don't believe there's a compelling reason here to decide a number of issues that the district court should pass on those first. If that's it, I have one other question. Yes, sir. If you were to not prevail, so we interpret Texas law, race judicata expansively, would there be, can you foresee negative consequences in other areas of Texas law? If we said race judicata applies here in these circumstances, your clients, would that be disruptive to the law that you can just thinking creatively in any way? Yes, Your Honor, because especially when we're talking about cities, municipalities, those types of things. Where's the limit? We raised in our briefing at one point to say, okay, so if you're saying with the Building Standards Commission that anything that's related to the city could be brought here, even though the Building Standards Committee didn't have authority, didn't have jurisdiction statutorily, the review was limited. If we're saying that anything you have against the city, an animal control issue, a slip and fall negligence issue, somebody hitting a car that involves FBCC, basically what someone could read it is to say that would have to have been brought in this BSC administrative appeal with substantial evidence review with no discovery would have been brought there. Could not have been brought in federal court, could not have been brought anywhere else, and that you are barred if you don't. I don't know. Your Honor, may I finish? Finish your sentence. Thank you. I don't know whether or not courts would agree with that eventually, but I think it opens the door to that, and that wouldn't be brought. Okay. Thank you. You've saved a little time for rebuttal. We will now hear from Hannah Ball, City of Austin. Yes, Judge, Hannah Ball on behalf of Appalese. Good morning, and may it please the Court. When a defendant holds in its hand a piece of paper labeled final judgment at the top, that piece of paper provides that defendant with security and peace of mind that the litigation is finally concluded, not just as to claims that were raised in that lawsuit, but as to related matters that could have been raised in that lawsuit. Now, what happened here is Mueller-Flatts' owner sued in state court to challenge the city's escalated enforcement efforts at its Mueller-Flatts apartment complex post-Winter Storm Yuri. And Mueller-Flatts' owner prevailed in that state court case and obtained a final judgment vacating 15 Building and Standards Commission orders ordering repairs on penalty of weekly accruing fines and thereby wiped out, I believe, over $1 million, maybe up closer to $2 million in accruing fines through that successful lawsuit. And then 49 days later, Mueller-Flatts' owner sued again, challenging the city's escalated code enforcement efforts at the Mueller-Flatts apartment complex, again following Winter Storm Yuri. And raised judicata bars that reopening of that state court judgment. I have several problems with that. You've heard me probe. In other words, it seems like your client, the city, repeatedly tried to clarify the facts were different, even with the slide presentation underlying the ROP. You said, oh, wait a minute, we put one in relating to Yuri, not implicated here. This case is 2019-2020, has nothing to do with Yuri. So how doesn't that alone mean the operative nucleus is just totally separate facts? Yes, Judge, I appreciate the question. So certainly the violations that led to Mueller-Flatts' being placed on the repeat offender program ROP predated Yuri. But the fact of the matter is that the escalated enforcement efforts and the building and standards commission order and then the requiring Mueller-Flatts to register with the repeat offender program and the appeal of that, all of that happened in a matter of three months. Right, but that's sort of handing you the keys. That almost validates their fear, their atmospheric whatever, that the old stuff wasn't going to be looked at until you couldn't get them on Yuri. So there was a political campaign, look at the old stuff. But it doesn't change the underlying facts. The old facts had nothing to do with the Yuri facts. And I think I push back a little bit on the idea that the Yuri facts had nothing to do with the repeat offender program. Okay. In particular, the facts that led to the suspension. So the Mueller-Flatts was placed on the repeat offender program for violations not related to Yuri. 525, violations all. Correct. Okay. But then when the city provided this notice of suspension, notice of intent to suspend its rental registration, and then the letter saying that its rental registration was suspended, those included Yuri-related violations. And also, there's more overlap to, and you're correct to point out this PowerPoint presentation. I thought the Yuri violations were all vacated essentially because the city didn't give them permits, so it couldn't violate them if it wasn't allowing the fixing. But permits had nothing to do with what put them on the ROP. So in the state court case, the final judgment vacated the Building and Standards Commission orders that ordered Mueller-Flatts' owner to make the repairs on penalty of fines. But what it didn't do is vacate the underlying notices of violation, even though Mueller-Flatts' owner asked as relief in the state court case not just that the orders be vacated, and actually the provision that they rely on, Local Government Code 54.039, it provides for Building and Standards Commission orders to be affirmed, vacated, or modified. But they sought relief beyond that. They sought relief to actually vacate the underlying notices of violation, and that relief was not granted in the state court case. I mean, part of me thinks it's the chaos post-Uri. Nobody wants to violate, but the city's not able to give people the permits to fix. So they dash into court immediately after Uri, and they get one word, vacated. They win. But I still am really not understanding how that one word, where they win, is raised judicata as to constitutional claims pertaining to violations that predated Uri. Appreciate the question. Maybe address the Whelan case. The Whelan case, I think the district court opinion dispenses with the Whelan case very well and is good on that. But the Whelan case, first it doesn't, it first says raised judicata is not a jurisdictional matter, so you've waived raised judicata because you didn't assert it and argue it below. But then it goes on to kind of opine on raised judicata and say, and the argument, it's kind of the converse of this case, but the argument was, city, you didn't ask for attorney's fees and other relief in the building and standards commission proceeding, and therefore you're barred from getting it. Well, that makes sense. They're indivisible, the two, the fees for the violation. But here, what they're really saying, and this goes to maybe this goes to the municipal code, they're saying they couldn't even bring the constitutional attack before the BSC. And that's, and they're just flat, respectfully, they're completely wrong on their understanding of how this process works. So they, local government code 54.039 allows for judicial review of building and standards commission orders. And it provides for how that will work, substantial evidence review, but nothing precludes the jointer of additional claims. And in fact, they did join additional claims in the state court case because they asked not only for the court to find that substantial evidence didn't underlie the decision, but they also asserted due process violation. They said that the city requiring them to repair within a certain amount of time, but not allowing them to get the proper permits to make the repairs put them in an impossible position and therefore violated due process. And, Your Honor, additionally, and I think this is kind of maybe the clearest way of seeing how these cases overlap, is that they also asserted a preemption claim in the state court case. They said that the city requiring them to repair within a certain amount of time was contrary to the Texas property code, which allowed them to wait until they received insurance proceeds because this was an insured casualty event so they wouldn't have to make the repairs. Okay, so to my understanding, I appreciate this is granular, you're saying in the first lawsuit they brought to the building standard commission both a due process attack and a preemption attack. They brought them both themselves. Yes, well, they argued it before the buildings and students commission, and then they also argued it in district court when they appealed that decision and sought judicial review. I mean, that's very helpful. Do you have a case that sort of confirms that these constitutional issues are the province of the BESC? Well, not that the BESC would first decide the constitutional issues, but the city of Dallas v. Stewart case stands for the proposition that not only can you bring constitutional claims alongside an appeal of a building and standards commission order, you actually must bring it if... Once you step into court. That doesn't necessarily say they're brought originally in front of the BESC? Yes. It's just only if you lose, then you can, and your position is must when you sue in court? So, Judge, the city of Dallas v. Stewart case, so there the building and standards commission order is that the property is a nuisance and therefore it can be demolished. And so the property owner, if the property owner is saying actually it was a taking to demolish this property, then that claim must be brought alongside the claim that the order is invalid. Because if the property is not a nuisance, then it was a taking, and then if it is a nuisance, as the building and standards commission found, then there's no taking. I'm not sure I'm answering your question exactly. No, I think you are. That's helpful. Okay. And then I would also add, in general, I think administrative agencies don't necessarily have jurisdiction to decide constitutional questions, and constitutional questions are brought in district court or brought before a judge. But I think that doesn't decide the question of whether Mueller Flats needed to have brought its constitutional challenges alongside its building and standards challenge to the building and standards commission order. But the Texas Joinder rules, 51A, very liberal, there was absolutely nothing that barred them from raising the repeat offender, the challenges to the repeat offender program at the same time. Yeah. Just again, part of my discomfort is that is a pretty new and draconian system. We've seen it a couple times in this court, the repeat offender programs. They may be very effective, but they are, as you've seen in this case, $60 million of lost income. To me, it is understandable that any landlord, immediately after URI, would try to get rid of the URI-related violations quickly, but might not be able to assemble a lawsuit attacking an earlier set of violations that put them into this vast program. But the position of the city is they had to put it all in there immediately in June of 2021, or they've lost it. That's your position. Yes, Judge. And I would push back a little bit on the idea that this program is terribly draconian. And I think that the SO apartments case that this court decided. I was on that panel. So actually, there's, the apartment complexes argued that all of this stuff was so terrible, they couldn't sell the apartments and the court just kind of rejected that and rejected the idea that if you're, you know, that there was any procedural due process violation in how they were placed on the program. I think there's a lot of similarities between the PAPE program and SO apartments in this case. But I would also add that, yes, there was a deadline to challenge the building standards commission order that the apartment complex would have to move quickly, but still the state court case wasn't concluded until 2022. So they could have amended the ruling. Correct. Correct. There's a third lawsuit against the city. Yes, Judge. For not electricity. Is there an argument there? Oh, they should have put that one in too. Is race judicata going to surface there too to block their pursuit of that litigation? I depends on what we say. Maybe so. I am not sure. I'm just saying it puts a huge amount of burden on maybe not in this case, but small landlords, you know, to get it all right and assemble everything constitutional due process, and teeny little nuisance violations and put it all in at once in the middle of the post hurry sort of chaos. Otherwise they foreclose it, even if they win on their nuisance case. Maybe so, but I think that's, that is pushing against that argument and, and is the argument for efficiency efficient. Yeah. To avoid just constantly la la la la la la. And so all these different cases that that can be a little bit too much for the other side. If you're just going to do every single thing in a different case. Yes. You could have all put together. That's the whole point. Get it done and move on. Yes, judge. And it's, it's not just efficiency for the, and, and for the defendant, it's for the judiciary and for the judges that will have to. Oh yeah. I mean, I was a state district judge. I wouldn't have wanted to get a hundred cases on something that could have been one. It certainly sounds efficient, but what about his comments at the end? This, this efficiency could be quite brutal. You get an animal violation and that forecloses you from bringing all sorts of separate different facts, constitutional claims because he didn't put it all with your animal violence, whatever his hypo was. Yeah. It's very brutally efficient. I agree with that. It saves the courts a lot of time might say the city a lot of time, but it puts a hell of a burden on individuals. And I think the transaction test takes care of that because it's not as though we're saying, you know, if FBCC had a claim that there was an open meetings act violation and how the city passed its budget, then it would have to litigate that alongside a claim that the city should have approved its site plan applications. I agree. And then that does get back to my fundamental difficulty in this case. I do see some aspects. I see same transactions in the way they pled it, the copy paste problem, but I don't see same transactions in the underlying facts. Would you agree with that? And that that's the perplexity here. Well, I think, um, let's run it through the same transaction test. Um, and I think I'm losing my notes. Uh, and I think there's some, um, comments in the risk, the restatement, the second restatement of judgments, um, uh, section 24, uh, I'm not sure which edition, I'm sorry, judge. Um, but it has some helpful material there. First, it says it advocates for a broad view of what constitutes a transaction. And it says there was in, in olden times, you know, there was a difference between what section are you reading from? Um, so, uh, we used to differentiate between equitable relief and relief at law. And we used to differentiate between, uh, trespasses to property and person. And the more modern trend is to kind of have a broader view of what constitutes a transaction. Um, and it also says, uh, comment B, no single factor is determinative. And if you're thinking about overlap and witnesses proof, um, if there's overlap there that suggests raised judicata, but even if there's no substantial overlap, um, there's still can be raised judicata. Um, and so going to the test. So the test is supposed to be pragmatic and you look at the factors that include, um, uh, whether they are related in time, space, origin, motivation, and there we have exactly that, I think. Initiated by the city same time, but actual underlying supported violations, not at all the same time. Yes. Um, but I, I think, um, the best answer to that question or that, that point is the Armadillo group hotel case. So in that case, as a circuit case, um, uh, it involved a counterclaim. So employees, uh, sued, um, and the, the parties are a little bit odd, uh, sued for, uh, unjust enrichment said that they were trying to be part of this venture joint venture and they didn't get their proper share of the profits. And then there was a counterclaim that, uh, the employees kind of, uh, uh, we're not, um, reaching their fiduciary duties. And then there was a separate subsequent lawsuit that the employees, um, took, uh, confidential information or misusing trade secrets. And there was, um, and then the argument was, oh, this wasn't one transaction because, uh, what we're talking about is the time after the employment, when the employees were using trade secrets after the employment and the court said, no, it's really one transaction, even though there are distinct time periods. There's a time period during the employment, there's a time period after the employment. So I think, um, even if the time period is not exactly the same in the two cases, there's that significant overlap councils in favor of raise to Dakota and viewing it as one transaction or one series of transactions. Um, and then in terms of origin or motivation, I think whether you credit the city's view of it's it's motivation, which is that it wanted compliance with code or, um, FBCC's, uh, view of the city's motivation that it was all politically motivated and wanting to make an example out of the Mueller flats apartment complex. Those two theories of motivation are the same in the state grace and the federal case. Um, and then the trial unit convenience and kind of the overlapping proof. And there, again, I think the, the preemption claim is the clearest cut, uh, a way to see the commonality between the two cases, uh, that preemption was argued in the state court case and it's a claim in the federal case. Um, and I see I'm almost out of time. Okay. Thank you. So thank you. And we will now hear the rebuttal. May I please the court. I want to start with the RV resolution trust corporation case from the Texas Supreme court. It's eight 37 Southwest second six 27. And it says inciting the restatement going back to the point there, it says a transaction is not equivalent to a sequence of events. The determination is to be made pragmatically giving weight to such considerations as whether the facts are related in time, space, origin or motivation. And then it continues on. It says, whether they form a convenient trial units and whether their treatment as a trial unit conforms to the party's expectations or business understanding or usage, you can get placed on the repeat offender list just simply by having five violations, whether or not they relate to health and safety, whether or not they relate to anything. And one of those violations can be simply not paying a fine. And that's within a 24 month period. Notably here, we got admissions from the city that even some of the violations or alleged violations that occurred to put FBCC on the repeat offender list were actually not violations. Those were the transactions that led to the repeat offender program and all the harm that's being challenged here. That is separate from, and the city even admits separate from the transactions that formed the violations related to the BSC proceeding that were vacated. We are challenging the constitutionality of the repeat offender program that could not be challenged against the BSC. Okay. But, but they, they point out that you actually brought preemption due process in the first state litigation. And the state litigation said they could not address that, that that was not available to them because they were doing a substantial evidence review and limited to. What's your record set for that? Or is it in your brief? I don't know. It's in either. Your Honor, I was part of that proceedings and I can just tell you that it wasn't, it wasn't part of it. I understand that you should preface it with, as an officer of the court. I apologize. That's a sort of crucial fact. Yes, Your Honor. But you, you, you did or you didn't bring a preemption due process. You thought that you could in that forum. You're now saying somewhere they said you couldn't. No, Your Honor. So they said we couldn't. Well, there's no record evidence. Yes, Your Honor. And as an officer of court, there, there is no record evidence. So from your, as an officer of the court, where were you told you could? By the court, Your Honor. Verbally. Verbally in the state court. Yes, Your Honor. But what I would say is, is that, and again, I want to be very clear here is that we are saying we could not bring constitutional claims related to. Is there a transcript? I do not have a transcript. Because you're making a representation to us that I would like to get documented. Yes, Your Honor. And I don't, I don't have the, the transcript of that. I don't know if a transcript. Okay. You could, you could submit it. I assume the court would submit, would accept a supplemental filing. Yes, Your Honor. And I don't know the, whether or not a, a transcript was made of that or not. But you understand this point is an essential point to your argument. If the court itself specifically said, we can't hear your constitutional arguments, that's sort of at the core of what you're telling us. Well, Your Honor. And it's weird to bring it up here at 0-0-0-0. And I apologize, Your Honor. It wasn't raised until the other side. No, it's been raised throughout. Well, but Your Honor, the, the issue here is, and I apologize. I am out of time. May I finish? Finish your answer. Your Honor, we're saying we could not raise the constitutional claims related to the repeat offender program. We are not saying because it says in the statute that you can raise illegality against the BFC orders. That's what we raised was the illegality towards that. That is different from the repeat offender program and what was going on in that circumstances related to the constitutional issues there. Okay. So unless anybody has any more questions, we're going to let y'all go. And this is the end of our OA's today. We will be back tomorrow at 9am and we will of course make decision about your case. Thank you. Thank you."
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"stt_transcript": "The case on our docket is 25-30326, St. Charles-Guillot, Investments v. One Source Roofing, Mr. Flanagan. May it please the Court, Harold Flanagan on behalf of Luling Living Center, St. Charles-Guillot. I reserve five minutes for rebuttal. The District Court incorrectly dismissed Luling's claims on summary judgment. I'll talk about two issues, duty and breach. With regard to duty, three quick points on Louisiana law. There is a near universal duty to act reasonably under the circumstances, including for a duty voluntarily undertaken. The Supreme Court of Louisiana's Malta v. Hiller decision teaches that in inspection cases like this one, the question of duty is determined on a case-by-case basis. And the scope of duty is determined in light of the ease of association between the inspector's actions and the potential harm to the plaintiff. The inspector may not unilaterally narrow this obligation. So, under the facts of this case, particularly the roofing contract and the deposition testimony of GAF's representative, we can see that there was, in fact, a duty owed by GAF to Luling to perform a reasonable inspection. Consider the economic realities here. Luling was buying a roof from Contractor One Source. GAF was to supply the roofing materials. The roofing contract promised that GAF would inspect and certify the new roof system and present a no-dollar limit total system warranty to the building owner. GAF did not simply sell materials and walk away. First, it informs its certified applicators, like One Source, as to compliance with GAF specifications. And it even certifies them to construct roofs with GAF materials, record 2290. GAF requires those certified applicators to comply with GAF specifications, record 2285. GAF didn't just make money from this transaction. It agreed to be a part of the overall bargain and had an ongoing connection with the job. It sold the materials. It inspected. It certified. And ultimately, it issued what it calls a guarantee. Its agreement to issue that guarantee after inspection was a signal that the roof complied with GAF's minimum specifications, record 2291 to 92. Under these facts, if GAF is to be exonerated from liability, it ought to be a jury that does it. GAF's corporate representative confirmed this intuitive conclusion that it was fair for an owner to expect the GAF inspector to note and identify deficiencies that are noncompliant with GAF specifications, record 2293 through 96. That testimony shouldn't surprise anybody. It merely confirms what I think is obvious. We highlighted that testimony in opposition to GAF's summary judgment motion. And when the order was published, granting GAF's motion, there was no mention of it. So we filed a motion for reconsideration. In response, for the first time, GAF said in response to its witnesses' testimony that actually he wasn't referring to Louie. He was referring to a hypothetical building owner. And I infer that Louie is outside of that universe of hypothetical owners for whom it's fair to count on the inspector noting deficiencies. The district court's order denying reconsideration accepted this act of the fat gloss on that testimony. I suggest that was incorrect for two reasons. First, that's not what the witness said. And this hypothetical owner argument seems to be more of a rehabilitation of what that witness said. Secondly, even if one could plausibly read his testimony as being limited to hypothetical owners, we could also reasonably read it to mean exactly what he said. And that is an owner of which Louie is a member of that class should be able to fairly rely on a reasonable inspection. On summary judgment, inferences like that should have been drawn in favor of ruling, but they were not. The district court also incorrectly credited GAF's subjective intention to limit the scope of its duty. That attempt of limitation was in the warranty document, which referred to surface inspection and an inspection for GAF's sole benefit. Two points on this subjective issue. First, the Malta decision does not allow a party to unilaterally limit its duty. This guarantee was never signed by Louie. It was received after the roof was torn off and the building destroyed. And that warranty was rescinded, record at 2297. No doubt the Louisiana Supreme Court has from time to time suggested that the actor's subjective intent can be a consideration, but it's not the determinative consideration. Imagine a rule that could say, a tortfeasor could always say, I didn't intend to protect that person, now I'm free from liability. I think that rule would be unworkable and that's not the law in any event. GAF has said it cannot be liable here because it had no right to direct or order one source to correct deficiencies. That argument seems to me to go more to causation than duty, but in any event, the record says otherwise. GAF could and did, with regard to that hollow spot in the roof, identify deficiencies, direct one source to fix it and to follow up and make sure that it did. Record 2264 through 65. And I suggest, Your Honor, the fact that GAF went through this protocol, it caught the single mistake that it caught. It told one source to fix it, one source said, yes, sir, and fixed it, shows us that that was expected. Mr. Levine of one source confirmed that his company was required to fix anything that GAF noted. Record 2282 through 83. And we see that GAF's protocol was exactly that, identify deficiencies, ask for correction and follow up, that is, supervise to ensure compliance. Record 2316, furthermore, 2264 through 65. Every inference on Rule 56 should have been drawn in favor of ruling, but it wasn't. On multiple occasions, that was error. The district court was incorrect to say that, as a matter of law, GAF owed no duty to ruling under these circumstances. We'll go to breach, which is simpler, I suggest. The district court further erred when it held that if there was a duty, the inspection was limited to a surface inspection. So we discussed that. There was a purported limitation in this after-the-fact guaranteed document that there was supposed to be a surface inspection only. The district court held that on a surface inspection, all of these deficiencies that were noted, mainly the record 2191, could not have been discovered with a surface inspection only. GAF never explained what a surface inspection consisted of, but we pointed to multiple items that could have been done without tools, without manual labor, without any destroying the work, to discover these multiple violations of GAF's own specifications, which its inspector did not catch. Again, record 2191. The two most obvious ones were the lack of a pull test and the failure to ask for a forecut sample. So a pull test is a test with a mechanical device that judges how much bite or withholding power a nail has once it's driven into the wood. GAF requires pull tests. Mr. Whitman didn't ask for one. Had he asked for one, he would have learned that one wasn't taken. This was a major mechanism of failure for the roof. He didn't ask for a forecut either. A core is cut into the roof to see how many membrane layers are already there, because you can only have two. What does the substrate consist of? Wood is not allowed on nursing homes like the Luling Living Center, and the condition of that wood. Mr. Whitman also didn't ask for evidence of a forecut. Another significant mechanism of failure on this roof in under Category 1 hurricane winds. The experts, significantly and unusually, I think in my experience, are mostly aligned here. Greg Fisher for Luling and Carl Schack for GAF. Carl Schack, for his part, said, I would not want my name as a roofing contractor associated with this job. And he and Mr. Fisher agreed on multiple items that were incorrect, not consistent with GAF guidance. Mr. Schack was adamant that it wasn't GAF's responsibility to find all these things. He would say it's a matter of policy. My opinion is it wasn't GAF's job to find all these mistakes. But he did admit that all of these things could have been seen by someone, someone who asked questions, someone who looked, someone who took a flashlight and looked. All of these things that could have been seen if Bobby Whitman had only asked. That creates, at best, a fact issue as to whether there was a breach and whether it was possible on a surface inspection, undefined, to determine whether these multiple deficiencies existed. I would suggest that we affirmatively proved with Carl Schack's testimony that these things could have been seen merely by asking questions. The court cut and the pull test are two easy, important examples of that. No one getting on their hands and knees. No one cutting anything open. At an absolute minimum, there was a fact issue on breach. And the district court was also wrong to hold that there was no breach under these facts. Thank you. Good morning. And may it please the court, Rebecca Weiss, on behalf of the Appellee GAF Materials LLC, the district court got this one right. It was correct for the district court to conclude, viewing the facts in the record and the light most favorable to the plaintiffs, that there is no genuine dispute that GAF, which is not an inspector, it is a roofing materials manufacturer, did not take on, did not assume a duty to these plaintiffs when GAF went out and inspected its product, the roofing materials that were installed onto plaintiff's property by a different defendant, one source, for the purpose of determining whether GAF would guarantee that product. And so I think there's two background facts that are really important to understand before I get into my argument. The first is, what was this guarantee? So GAF issued a no dollar limit guarantee. And the guarantee was that its product would not leak for any reason, workmanship, wear and tear, product defect. But that guarantee had exclusions, one of which was that it would not cover leaks if there were winds over 50 miles an hour. Mr. Flanagan disputes that there was a category one hurricane at this property, but he does not dispute that the winds were higher than 50 miles an hour. His experts said they were at least 62 miles an hour. So what that means is that they're not making a claim under this guarantee because they accept that the guarantee does not apply. They're trying to impose a broad duty and negligence on GAF over and above the duty that GAF agreed to assume via this contract. And that just, that doesn't make any sense. Louisiana typically narrows a duty that a manufacturer owes. It says mostly you only have a claim if it's under the Louisiana Product Liability Act. There's a narrow exception when a manufacturer can be vicariously liable for its employee's conduct, but we just don't have any evidence of Mr. Whitman, the field services inspector, being negligent here. The second thing I think it's important to understand is that there is someone who was answerable for the damages that plaintiffs incurred here. The installation contractor that performed an improper installation. There is someone who is available to compensate plaintiffs for those damages. They were a defendant to this suit and they settled with the plaintiffs. So it's not as if finding that GAF didn't owe a duty will leave plaintiffs holding the bag. Do we know from the record what went wrong to cause the damage to the facility? So what plaintiffs' experts said, and so that's what we accepted as true on our motion for summary and judgment, is that it was an improper attachment of the fasteners to wood nailers. So this is a TPO roof and what that means is it's a flat polyurethane membrane. So it gets attached subsurface to these like wooden blocks and there was not enough bite as Mr. Flanagan said. So those fasteners didn't get attached tight enough into the wood nailers and that's something that's subsurface. So GAF can't see it when it goes out and performs its inspection because the roof's already been installed on top of that. What does GAF manufacture? It manufactures what's on top of it. So it's a polyurethane membrane. If you guys, it's actually not that common in Louisiana. I have one at my house, interestingly enough, but it's like a white flat roof and so it's just like a membrane. It's not the standard sort of deep roof. Right. So that's what plaintiffs say went wrong and that kind of goes to the later question that Judge Long answered, which was there a breach? Mr. Whitman could not have seen these installation problems when he went out and inspected. And what was he inspecting? He was inspecting the surface because he wanted to see if it would leak, right? That makes sense. He wants to see if it's tight to the edges so that there's not going to be water that comes through because they're not going to guarantee that the roof won't leak unless he determines that, in his opinion, it won't. So he walked the roof, he probed the seams, but he didn't do destructive testing to see if nailers were appropriately fastened because that would have compromised the integrity of the roof. So in any event. I guess, I don't know if this makes sense. Does GAF manufacture the thing that went wrong? No. Okay. Because this is not a product defect case. In fact, plaintiffs initially asserted claims under the LPL. So it wasn't a product that went wrong. It was the way it was. It was the installation. And so that's why they sued the installation contractor who has responsibility for how his work is performed. And that's why Judge Long did an assumption of duty analysis here. Because, of course, there's a general duty to act reasonably in any conduct that you undertake. But what plaintiffs are arguing here is that GAF assumed an extra duty. GAF went out and took on something that it wasn't ordinarily obligated to do by inspecting its product. Did one source do an inspection? I'm not sure if one source inspected. What I can tell you is that the expert testimony in this case is that if a plaintiff wants an inspection done for its purpose, you get an owner's representative that you don't look to the manufacturer. But I'm not sure if the contractor itself does its own inspection. So plaintiffs are arguing that GAF kind of went outside of what's normal. But the evidence just doesn't show that. This was a standard inspection of a product, not of an installation. What Judge Long looked to were the three factors that Louisiana courts look to to determine whether a defendant assumed a duty. And that's the scope of involvement, the extent of authority, and then the underlying intent. For scope of involvement, GAF was not involved in the installation, which is, again, what we all understand is what caused the damage at all. What about his point that they found a low spot and that was an installation problem that GAF ordered it to be fixed and it was? So that was not what related to their damages at all. And GAF didn't actually have, for skipping ahead to the extent of the authority, but GAF didn't order that it be fixed. GAF couldn't direct one source to correct its work. GAF could decide not to issue a guarantee of its product if it thought that there were errors that prevented it from guaranteeing that the product would leak. But that was not a direction to correct installation, because as one source testified and GAF testified, GAF could not do that. And GAF, plaintiff's expert agrees. He agrees that manufacturers have no control over an installation. What about his point about the pool tests, what you called destructive testing, the pool test and the core test. Is that not the sort of thing that GAF does traditionally to figure out if it can issue the guarantee on the leak? So the testimony from Mr. Levine is that he did take core tests, and I actually believe that in the guarantee file, which is in the record at 1896, there's a checkbox that says there were core tests. Pool tests, that's not something that's a part of Mr. Whitman's inspection. And what we have here is a claim for negligent inspection. So it just goes outside of what they're even saying Mr. Whitman did negligently. But the core test is something that your client normally does when doing these sorts of inspections? My client does not do them. The contractor does them. One source or whatever it's called. Correct. And my client has to see them. Oh, I see. Yes, exactly. So we don't do that testing at all. That's all an obligation of the contractor. That's just something we're asking to look at. And are those tests in the record? I mean, I know the little checkboxes, but... I don't believe they are. So the extent of their involvement. I think it's also important to understand the timeline of this project. So one source and plaintiffs contracted for one source to put a roof on plaintiff's property in April of 2021. That contract was signed April 14, 2021. Plaintiffs really emphasized that, well, that contract said a manufacturer is going to come out and inspect. GAF didn't know that contract said that. Can't impose a duty upon GAF because of something someone else said they might do. If you believe that what GAF did did not comply with that contract, you have a claim in contract against the person who made that representation. That's not us. GAF did not find out about this project until, in the words of one source, it was done. What happened when one source was done is it registered the project with GAF. And that was April 22, 2021. So when one source registered the project, then GAF sent an inspector out in early May to do the surface inspection that I've already described. That inspector did not say anything to one source about how to perform its installation because the installation was already performed. Then the extent of authority. I've touched on this a little bit already, but GAF just had no authority whatsoever to direct one source's work. One source's contractor who actually installed the roof, Darren Levine, testified once I purchased a GAF product, I can do anything I want with it. They cannot tell me what to do. The only authority we had was to not issue the guarantee. And I heard Mr. Flanagan talk about plaintiffs relying on the issuance of that guarantee. They did not know the guarantee was issued until after their roof blew off. It is in the record, also in that contractor file, which starts at 1896, that we mailed it the day after Mr. Whitman's inspection via U.S. mail. But plaintiffs say they didn't get it until after their roof blew off and they were looking to see, you know, who might be answerable for those damages. So they cannot credibly say that they relied on the issuance of the guarantee because they weren't even sure it got issued. And then finally, the defendant's underlying intent. And so we are not, as Mr. Flanagan suggests, attempting to define our own duty and narrow it. If a defendant could define its own duty, you would never have lawsuits. Instead, it's relevant to understand what GAF believed it was doing when it went out and did its inspection. And that is clear that GAF thought that it was inspecting for its own benefit to determine if it would promise no dollar limit that plaintiff's roof would not leak in certain circumstances. You can see that from the language of the guarantee itself, which says our inspections are for GAF's benefit only. The testimony of Mr. Whitman when asked why he went out and inspected to determine if I'm going to issue the guarantee. And our corporate testimony, which says our inspections are for guarantee issuance only. They're not for quality control. Based on those three factors, the district court correctly found there's no genuine dispute here. Because the underlying facts really aren't disputed. It's just that plaintiffs are trying to characterize the facts in a way that would broaden the scope of GAF's duty here. Just to return to the guarantee for a moment. I think you might have said this earlier. The guarantee here doesn't apply. Correct. Because of the wind speed. Exactly. So it specifically excludes coverage when winds are over 50 miles an hour. If the property owner came to you and said, well, you issued a guarantee. I need you to honor the guarantee. Under the terms of the guarantee, you're saying it wouldn't apply. Correct. And they're not making a guarantee claim. They're not making a guarantee. Exactly. So Judge Long correctly found that GAF did not assume a duty here. He also, though, correctly found that GAF did not breach any duty that it might have had. And one reason I think Judge Long did this is because duty and breach are kind of very close and often interrelated in Louisiana law. And this is the Hebert case from the Louisiana Supreme Court. The Louisiana Supreme Court has said that it is the court's job to decide whether under the specific facts and circumstances here, a defendant owed a duty to the plaintiff that it breached. So because it is this defendant and this plaintiff question, it was appropriate for him to go look at whether the duty might have been breached. And what he found is that even assuming there was a duty, which again, there was not, no duty was breached. And that is because Mr. Whitman could not have seen the issues that plaintiffs say went on with the installation when he did his inspection. And two points on that. So first is that Mr. Flanagan talked about Carl Shack, our expert, saying that someone could have asked questions. Yes, lots of people could have asked questions. The question is whether it is the onus is on a manufacturer inspecting its product to ask questions about what the condition of the roof was before installation. What Mr. Flanagan asked Mr. Shack in his deposition was, would it be reasonable for an installation contractor to ask all these questions? And Mr. Shack, of course, agreed, yes. Plaintiffs are trying to take that testimony where our experts said an installation contractor should make these determinations and say that that means our expert agreed a manufacturer could and should do this. That is not what that testimony was. The second thing is plaintiff's expert, Greg Fisher, who himself is a roofing contractor, he kind of agrees he's not an expert in manufacturing, but for my purposes, it's all the same because he agrees with my point. He was asked to assume, even in light of the fact that it is industry custom that manufacturers do limited visual inspections, that a manufacturer owed a broader duty. And because he assumed that a manufacturer owed a broader duty, he found that Mr. Whitman breached that duty because he did not ask a series of questions about the condition of the roof before one source installed it. In his deposition, he agreed that his opinion amounts to GAF could have asked a bunch of questions but didn't. But even if GAF had asked those questions, number one, they would have had to be relying on one source to tell the truth, and number two, they couldn't have done anything about it regardless of what one source answered. So based on that evidence, the district court correctly found there is just no evidence that GAF breached any duty because there's nothing that GAF could have done that it didn't do, and there's nothing that GAF didn't do that it should have done. Well, was the fact that this was put over a wood base, did that affect the performance of your client's product? So not per se. I think it is okay to put this kind of membrane over a wood base. I think it doesn't really matter one way or the other because that's not what plaintiffs are even alleging caused the problem. They're alleging that it was about the specific way that the roof was fastened to the nailers that caused the problem. Is there no further questions? Does that go to your warranty? In other words, does that affect whether you think your roof is going to leak below 50 miles per hour or not? No, and that's why Mr. Whitman didn't ask the question because it's not relevant to whether the roof is or isn't going to leak. What's relevant to whether the roof is or isn't going to leak is what he can see and what he can feel during his visual inspection, and GAF, I mean the testimony is in the record, stands behind its guarantee that the roof was not going to leak in normal weather conditions, but that just isn't what we have here. Remind me again, what is the roofing membrane called? TPO. TPO. Okay, thank you. If there are no further questions, your honors, I will just ask that this court affirm the correct decision of the district court. I see, it's a membrane. I've been thinking the whole time. I heard the suggestion that GAF is not an inspector, yet it inspected, and if it didn't have a duty to inspect, it assumed a duty, SNAC v. Orkin, and it had a duty at that point to do a reasonably good job. So if it started out with no duty, it assumed that broader duty once it stepped on that roof and it started telling people what to do. As to that point, record 22-64-65, that's Bobby Whitman, the inspector, telling me at his deposition that his protocol is to tell the roofer what to fix and to follow up with him just like your supervisor does with you, Mr. Whitman, and he said, I guess so. There's a factual dispute about what Mr. Whitman could have seen. That's what the jury's for, and breach is a classic fact question. I refer the court to record 23-07, these nailers that- Just so we're clear, you say once he got up on the roof, he owed a duty to inspect anything that might be defective with him? No, no, ma'am, I absolutely cannot say that. I think once he got on the roof with his checklist, and he has a mental checklist, and his forms to fill out, and he demonstrated to us what the expectation was. He's going to view, he's going to identify, he's going to order things corrected or ask that they be corrected, and he's going to follow up to ensure that they are. That's on his checklist. He's got his mental checklist. He does not carry around a checklist. He's got a warranty form, and what he calls his mental checklist. He's been doing this for so long, he doesn't need a paper one. Are you saying he didn't follow his own mental checklist? 100%. 100%, I'm saying that, Your Honor, and he let go numerous things that are in the GAF specifications, which GAF requires its installers like one source to follow, and I'm using that word on purpose, require. What are those? They are- That weren't done. So you heard my colleague talk about nailers. Nailers are big 4x4s on the perimeter of the building. 2307, I understand that the nailers would have been visible at the time, and that we could have seen, anyone could have seen, whether an inspector or an installer, could have seen that they were deteriorated. So when you nailed nails into mush, and you don't do a pull test, you're putting nails into nothing that's going to hold. To someone's question on the panel, the mechanism of this damage was nails popping up, wind getting under- Yeah, that was my question. I just wanted to zero in on what exactly- Like a parachute or a balloon, and wind getting up, and it yanked the roof off, and then all the water came in and destroyed this nursing home. We heard a suggestion that the core tests were taken. Mr. Whitman, 2268 and 69, said they weren't significant to me at the time. So there was some testimony that cores were taken. Proof of these cores was never provided to anyone, including in discovery. We had some testimony from Mr. Levin that he thought they took a core cut, and no one produced a photograph of it. And Mr. Whitman said it wasn't significant to me at the time. So he did not ask, nor did he ask about the pull test. The core and the pull test, the two most egregious violations, and I think most impactful to this mechanism. What Mr. Whitman could have seen or not seen is a classic fact question. The Mr. Shack, as my colleague says, he was asked what an installer could do. I asked that question on purpose because I knew what his position was. It's not GAF's job to do it. But somebody with eyes, ears, and a voice could have done all of these things. And so Mr. Whitman could have as well. Does GAF argue that it didn't have a duty and therefore didn't need to? That's fine. We're talking ease of association here between the inspector's actions and potential damage to the plaintiff, the customer. GAF cannot decide that it has no duty. Malta tells us that. Time and time again, and on this breach issue, the district court drew inferences in favor of the moving party and not moving. And this is even in the face of affirmative proof in the form of testimony from the experts as to what Mr. Whitman could have seen and done. The district court was wrong on duty and wrong on breach, and this court should reverse. Thank you. Thank you, counsel. That will conclude the arguments before this panel. All the cases we have heard are under submission. Thank you. Thank you all for your attendance today. We appreciate it."
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"stt_transcript": "from y'all. And we will start with case number 25-10365, U.S. v. Nourian et al. And we'll start with Brent Newton for Rodberg. May it please the court. This morning I want to primarily address the issue of whether the Federal Employees' Compensation Act, or FECA, the scheme, and the Department of Labor's Office of Workers' Compensation Program's implementation of FECA qualify as a health care benefit program under 18 U.S.C. section 24B and the health care fraud statute, which adopts the definition. If I have any time left, I would like to address the issue of whether there's insufficient evidence that Appellant Rodberg was aware of the medically unnecessary nature of the compound prescriptions in this case. I'll first address the section 24B issue with a focus on the term plan. In interpreting the undefined term of a federal criminal statute, any statute for that matter, this court should first determine whether there is a plain meaning of the term, in particular, a plain meaning in the statute's particular context. Here, health care context. In deciding whether the meaning of the undefined word is plain, this court also must consider the overall statutory scheme, including any other related statutes which use the same or similar terms. If there's still not a clear meaning after that, the court should look at the legislative history to see if it can help resolve an ambiguity or unclear meaning. Finally, if the legislative history does not provide an answer, then this court must apply the well-established due process requirement to strictly construe statutes against the government and the related rule of lenity. Engaging in such an approach to the question of whether Section 24B's definition of health care benefit program includes the FECA workers' comp scheme, the answer is that it does not. But we, we, Andrew, I'm sure you're going to get there, but we said 24B is broadly defined, and then when I look at that Shaw decision, it looks like we've equated it to TRICARE and specifically described it as a health care program, health care benefit program. Shaw addressed the anti-kickback statute. Shaw did not address 24B. But it looped the FECA in with other health care benefit programs. 24B is distinct from the anti-kickback definition. The anti-kickback definition says medical benefit through insurance or otherwise. The same Congress that enacted anti-kickback statute's definition also enacted 24B on the same day and the same act. Even though they're in different provisions of the code, it was the same act. See, but so you're saying this is not insurance, this is workers' comp? Is that the same thing? FECA is not insurance. FECA is unquestionably workers' comp. This court has so held, many courts, the Supreme Court has so held. Workers' comp was created 100 years ago or so as a substitute for a negligence action against your employer. It is not health insurance. It's not a contract, clearly, because the Department of Labor has discretion whether to apply it. The only real question is the word plan. Anderson did not address whether a workers' comp scheme is within a plan. So first question, is it plain? No, it's not plain. The government wants to say, well, look at just the dictionary definition of plan. A plan can be in a myriad contexts. This is the health care fraud statute, meaning the word plan has to be read in the context of health care. If you were to ask an average person, what's your health care plan? We would pull out our Blue Cross Blue Shield card. Maybe an elderly person would pull out their Medicare or Medicaid card. Maybe a military person would pull out their TRICARE card. Those are insurance plans. Those are not workers' comp. A person's not going to say, oh, my God. Remind me just procedurally, this came up through a motion to dismiss as no. No. It came up in a motion for judgment of acquittal, arguing that the government failed to prove that FECA and alternatively the Department of Labor workers' compensation, although that was not pled in the indictment. I'm addressing the broader issue, assuming we're talking. Judgment of acquittal applicable to how many of the counts? Count one for Appellant Rydberg, although if I prevail in this count, then that requires a judgment of acquittal on the money laundering because the only specified unlawful activity for the money laundering was the Department of Labor claims, not the Blue Cross Blue Shield claims. I'm not arguing Blue Cross Blue Shield is not a health care benefit program. So if you agree with me that there's insufficient evidence of FECA as best constituting a plan, then the remedy is to vacate the conviction and send it back for a retrial on the Blue Cross Blue Shield. This is alternative theory, excuse me. The government's clearly not argued this is that you can sustain the verdict based on the Blue Cross Blue Shield. I alternatively argue that even if, assuming arguendo, that the workers' comp, FECA workers' comp scheme, Department of Labor offers workers' compensation, assuming that is, for the sake of argument only, a plan, then there's still insufficient evidence because there's insufficient evidence to prove Appellant Rydberg was aware of the medically unnecessary aspects. Government argues, well, there's proof that he did kickbacks. I disagree, but even assuming arguendo, there's proof he did kickbacks. As the 11th and 9th circuits have held, kickbacks are not sufficient to satisfy the health care fraud statute. But I want to return to my ‑‑ Before you return, Dr. Williams was highly incriminating of, broadly speaking, your client on the sufficiency point. Oh, kickbacks. He never once said anything about knowing Rydberg knew that there were medically unnecessary aspects. It's very important to distinguish between ‑‑ Well, but it says, you stated you participated in a pled guilty conspiracy to commit health care fraud. Did you commit that crime alone? No, sir. What are the names of the other evangels you committed the crime? Christopher Rydberg. He never once specifically talked about Rydberg's knowledge. I know, but the jury hears that testimony. They could choose to credit him whether it was specific or not. In your new trial motion, you tried to defeat Williams saying that testimony was false, but the court didn't accept that. So then you've got the jury able to credit Williams who explicitly states health care fraud. Well, Williams was no expert in whether kickbacks alone qualifies health care fraud. Medically unnecessary. There was no objection to him on that basis. That statement, incriminating, was just right out there for the jury. If the government calls a witness and that witness says, did you conspire with this person to commit a crime, and the witness says, I did, pass the witness, that's not insufficient. That's not sufficient evidence to prove very specific mens rea. Well, then you object and say this witness can't speak to his criminal state of mind, but there was no objection. Regardless of whether there's an objection, it's not sufficient evidence even coming in. But I'd like to return in my remaining time to the FICO issue. That's the most important issue in this case. It's not a plan. The plan's not defined. In the health care context, Cooper requires Cooper, this court's decision, and Cooper says you've got to look at it in the health care context. It's an anti-kickback statute, but it's the same thing for our purposes here. I should remember, in your time short, in your brief, do you cite any circuit that's agreed with you that cars out? This is an issue of first impression. This is an issue of first impression. But therefore, your contention is no circuit is ever actually upheld. The government cites Martinez, the Sixth Circuit. That was an anti- silent antecedent assumption. No one argued this in that case. They did not even mention 24B in the Sixth Circuit's opinion. But what do you do with Shaw, which specifically describes FICA as a, quote, federal health care program? That's the anti-kickback statute. That's a different statute. That defines it insurance or otherwise. 24B doesn't say insurance or otherwise. That's a critical indicator. At the very least, it creates an ambiguity. Legislative history doesn't answer it. Rules of statutory interpretation don't answer it. Well, it has ambiguity because we haven't construed it in your statutory context. How is that? No one's interpreted it. Well, that just makes it an issue of first impression. It doesn't make it ambiguous. Otherwise, we would have ambiguity all over our law. I'm not arguing that it's... Oh, the ambiguity is for the reasons I've stated in my briefs. A, people don't talk about health care plans and mean workers' comp. B... Why not? They just don't. Health care... For the reasons in my brief, you can look at the way the case law, you can do a Google search. People talk about health care plans as insurance. Well, we did. I grant you it's in a different statutory context. That's fine. I'm not sure that gets you all the way there. No, I think it actually gets me there because you have to look at Congress passed the anti-kickback definition and they passed 24B the same day in the same context. I think you're reading this out of context. There's nothing in the sentence, in this paragraph, indeed in the surrounding paragraphs that remotely tie that to the kickback statute. It's a generic... It's in the facts section. It's just generically saying this is a federal health care program. Federal health care program is the term out of the anti-kickback statute, not the term out of 24B. That's critically wrong. Even though it's in the facts section with no reference... All right, go ahead. Pull the indictment. It was not a health care fraud case. All right, I'll reserve it. Okay, you've saved time for rebuttal. Thank you. Okay, and now we'll hear from Ashley Kaper for Nourian. Good morning. May it please the court. With limited time, I'd like to preview that I intend to focus on my argument on the prejudice that occurred at sentencing. But first, I'd like to make a couple of quick points regarding the government's rebuttal at closing. The government's rebuttal at closing was improper and prejudicial, requiring reversal and remand. To refresh the court, the facts are that in rebuttal, the government presented three slides, the three monkey slide is what we refer to it as, see no evil, hear no evil, speak no and proceeded to argue that Nourian and Ryberg actually put their heads in the sand, closed their eyes to what was happening around them. This contravened with the court's refusal to permit the jury instruction of deliberate ignorance. You know, sort of the obvious response would be, it's isolated, and then you've got a jury instruction. Your Honor, that's... You may not have gotten as far as you wanted, but there was no objection to the one you did get. That's right. We did get a jury instruction, but the jury instruction only instructed the jurors to not take into account the slide and not the accompanying... I agree. And the statement accompanying it, but you could have said, Your Honor, we need a little more. That is right, Your Honor. Our position would be similar to Williams, where there was objection as to the jury instructions there, where it was the first version of the jury instruction that was objected to. The court held that any remedy that had occurred, that objection carried on, and we would say the same applied here. Judge Lindsey agreed that the government overstepped, and we would also argue that knowledge was quintessential to Nourian's defense, and so the prejudice here was enormous. I'd like to now move to my next point, which is my primary point, and that is that the court improperly factored in Nourian's perceived lack of remorse at sentencing. I know that this is a topic that the court is very familiar with on the heels of the Saldana-Rodriguez decision, and I think that this is very distinguishable. Here, the judge said specifically at sentencing that Dashid Nourian did not say he was sorry. He did not say he had learned his lesson. This is taking into account an improper factor when determining sentence. This was right on the heels of him issuing a sentence. But it was right after allocution, correct? Yes. Which was sort of meandering and not very remorseful. Your Honor, I would say- In other words, wouldn't it naturally be responsive to what he's saying at sentencing as opposed to commenting on his assertion of innocence? I would say that the court focused on what was not said rather than what was said. And so, yes, there was some meandering with respect to Nourian's allocution. But the court didn't focus on what Nourian said. It was instead the court said, quote, he did not say he was sorry. He did not say that he had learned his lesson. Is this a Fifth Amendment argument or it's evolving out of Mitchell? It is a Fifth Amendment argument. And what's the line? Because you're right. We see this all the time. District courts are allowed to comment on sort of the larger atmospherics of sentencing. Yes, Your Honor. So what would you say is the clear line? I would say that the line- Is it just using the word remorse? That's sort of forbidden? Yes. Well, I'd say turn to Laca, turn to Thomas. In their Laca, it was the court said there was no inclination of repentance. In Thomas, the judge wanted him to come clean. In both of those cases, the court clearly expressed that the factor that was being taken into consideration at sentencing was the defendant's failure to express that he had done something wrong. And that is very similar to what occurred here. So what is the bright line is Your Honor's question. And I don't think that there is a distinct bright line. It's what the court says at sentencing. And as Your Honor pointed out, in the Saldana-Rodriguez case, it was more of the defendants insisted on their innocence. It wasn't that they then, at sentencing, had failed to acknowledge wrongdoing. And I find that that is very distinguishable from the incident case. I'd also just like the court to take into account that even though there was a variance that was a lower, imposed a lower sentence than a guideline sentence, that as in Escalante-Reyes, which Your Honor is quite familiar with, that case was remanded for considering an improper factor, even though that, too, was below guideline sentence. So clearly, Judge Lindsey found that this was important, the defendant's lack of acceptance of wrongdoing, or else he wouldn't have brought it up. It came out of nowhere. We would also say that because of that, this was an issue that the district court raised to Escalante and resolved it. And so under Hernandez-Rodriguez, this would be the same standard as if an appellant had properly raised the issue. Before your time runs out, just on the whole array of sufficiency, Mr. Aguiar was very incriminating in terms of your client. Yes, Your Honor. We are aware that with respect to the prescription pad and the sufficiency of the evidence there that Mr. Aguiar did incriminate Mr. Norian. That said, he then went on to say, Mr. Aguiar did, that he was not paid by Mr. Norian, that there were instances where the prescriptions were not completed by Mr. Norian. And so while a pad may have been provided to him, there was still a lot of outstanding question as to how much Mr. Norian actually knew about the crimes that were being committed. Okay. Thank you. You've saved a tad of time for rebuttal. We will now hear from the U.S. via Javier Sinha. Good morning, Your Honor. May I please the Court? This is Javier Sinha on behalf of the United States. I'd like to take the issues and the order of defendants raised them, so the FICA issue, the Three Monkeys issue, and the sentencing issue, but happy to move around if the Court has any. Well, just procedurally, were there more than one mistrial in this case? More than one. I apologize. Mistrials. No. There was at least one mistrial, correct? James Norian was, his case was separated in this trial because of health issues. And he hasn't gone to trial yet? No. He was deemed competent recently, and so we will be taking him to trial soon, but he's not going to trial yet. And Dr. Tava, in this trial, his appeal has not been consolidated? I think that's right. Yes, Your Honor. So the only issues here are Reitberg and Norian. Turning to the FICA issue, Section 24B says plan, and includes no limitation on what kinds of plans. The defense counsel kept saying, you know, the meaning of health care plans. That's not what the statute actually says. It just says a plan or a contract. So the question is, what is a plan? And there's no reason to think Congress meant to limit it in any way. Indeed, Congress put the word any before plan, and any seems to suggest, without limitation of any kind, any sort of plan. And so FICA falls under that kind of broad statutory language, which this Court has recognized as broad and Anderson. Also note, to the extent that defendants are arguing that we should have listed in the indictment something like they defrauded the plan created by FICA, that most would be a non-fatal variance, and this Court can confirm on those grounds. Notice that this is an issue of first impression? It is correct, Your Honor. I don't think any court has been presented with the claim that FICA is not a health care benefit program. I think possibly because the statute is so clear that any plan qualifies. But you're not aware of any government prosecution that's seen through conviction and affirmance? There's no circuit that's affirmed a conviction based on? I do think there have been a lot of cases where we charge violations of the health care fraud statute, alleging that FICA is a health care benefit program. I don't think there's been challenge on appeal that FICA is the incorrect, either the incorrect words used in the indictment. Right, but I guess you might find things, I don't mean to press this point too much, but you might then find cases like Shaw, where just even the statement in the background it encompasses FICA fraud. I think there's a few that mention it sort of in the back section, or they associate FICA with things like Medicare or Tricare, or even sometimes insurance plans. I think we cite a first circuit case that says FICA is insurance-like or something like that. But no court has said under Section 24B FICA qualifies as a plan. But I think the plain language of the statute shows it does. Congress could not have written it more broadly by saying any plan here. If there are no further questions on that, I'm happy to move on to the three monkeys issue. The first point is that this should be reviewed for plain error. Defendants objected. The court sustained their objection, and they got a curative instruction. This court has said that once that happens, if the defense wants to continue to complain about the error, they have to object again. Defendants here didn't do that. I mean, obviously, rebuttal closing, there's no chance for them to respond. It's very difficult to object and draw attention to something. Sort of devastating to have a slide up there. So even if we were to accept that it's plain error, which I'm not inclined to agree with, I just would love to know you're acknowledging it was error. I don't think we do, Your Honor. I think, OK, so the district court, when it rejects the deliberate ignorance instruction, says there's no evidence for it. And then the prosecutor, right after talking about, oh, are they really claiming that they're two islands of purity in front of a sea, in the sea of corruption, says, you know, it occurred to me, I've got a slide ready. How could he present a slide if there's no evidence to support a slide? So the slide was to characterize not the evidence or our arguments, to characterize the defense's argument. It had just happened at closing? Correct. So the government is responding in the instant to a defense closing, but he happened to have a slide all ready to put up? I think, my understanding, and I have to make sure, I think this happened the next day or later, and so they had time to, I think overnight probably, prepare the slide. So this was in response to the defense's closing. And I can read the quote. Both defendants' closings? Correct. As we say in our brief, both defendants argued in their closing that they had no knowledge. And I'll read the court very quickly just some of the things that we said before putting the slide on. Right, but I'm just sticking with it. It's just a government rebuttal argument putting a slide up based on a defense that the district court has said there's no evidence to support. At minimum, you'd go to sidebar. So that's what happened here, actually. The government went and said, I intend to put this up. Oh, no, you're right. That's what I mean. I think here the government thought, and I can still believe, that the slide was not characterizing a theory of liability that wasn't presented to the jury. It was characterizing a defense that the jury had just heard that these defendants didn't know anything, that they had no idea what was happening. But then the logic is, I may have a ruling that disallows it, but they've opened the door. I don't think we thought this was disallowed, because I don't think we believe that this was somehow telling the jury, you can find them guilty through deliberate ignorance. Our argument has always been that they had knowledge. And we actually said, look at this slide. This is unbelievable. Defendants are arguing that they had no idea. That just can't be believed. And so the slide wasn't saying the jury should believe what the slide showed. It's saying what the slide shows can't be believed. The evidence is so clear they had knowledge. So it's a willful blindness. It sounds like don't see, don't say, don't hear. I can't think of anything more on point with a willful blindness, deliberate and big. It wasn't the comment about Chris stepping out of meetings. It wasn't that the comment that in the little exchange, once the objection is drawn, the government says this is because Chris used to step out of the meetings exactly when incriminating things were said. That's okay. So he stepped out so he could deliberately say he was ignorant. It's possible. I think that may have been a misstatement. It may have been referring to when Chris stayed in the meetings with Dr. Williams. But it's not clear from the record what the government was referring to there. But I do think the government said that. I'm just not sure what exactly they meant. But I think the government here is trying to say they're arguing this was somehow they didn't know. And we said this is not believable. But even if the court wants to not talk about that issue, I think on the substantial rights issue, it's quite clear this did not affect the substantial rights. They received the jury instruction. It may not have been what they wanted, but it was quite clear. And the district court... And this substantial rights argument would apply even if we said it was preserved? Correct. Then you would just say it's harmless because... Correct. It's isolated and the usual litany. Correct. If it's preserved as a group for abuse of discretion, if it's not, it's a group for plain error, clear or obvious error. There's no clear or obvious error here. And there's no abuse of discretion here either. This occurred, as the district court said, it's two passing references and otherwise a 45-minute long argument. It wasn't mentioned again. The court gave a curative instruction. The court's instructions made it clear the jury had to find knowledge to find guilt here. And so there's no effect to their substantial rights. I'm happy to move on if the court has no more questions on this point. The jury, they had some questions, didn't they? They had a few notes. About impeachment and about uncharged defendants? That's correct, Your Honor. But none of them had to do, I think, about anything here. Nothing about Sienta? No, I don't think so, Your Honor. If there are no more questions on this, I'm happy to move on to the last point, which is the lack of remorse point. This court has repeatedly said that the district courts may consider lack of remorse sentencing. Indeed, district courts have to do that under 355 pre-A, which requires them to consider things like a defendant's history and characteristics and deterring the defendant's future crimes. The one thing a district court can't do is consider a defendant's invocation of the right to remain silent or the right against self-incrimination. The court didn't do that here because Norian waived that right by first, filing a letter with the court. And in that letter, he does discuss his remorse. And second, by allocuting a sentencing. So I think there might be cases where the waiver, the scope of the waiver is unclear. I think in this case, it's quite clear that it includes remorse or lack thereof because Norian himself mentioned it in his letter to the court. If you had to pick out one statement in this allocution that most sort of rejected any sense of obligation to victims, what would it be? I think it's the only site in our brief, Your Honor, where he says, I want to get it right exactly, he says, I've tried to do whatever I can to prove that maybe I'm not part of this, but unfortunately, we saw the jury. But again, I don't want to read this letter because it's under seal, but it's on page 10,660 if the court's curious. There, Norian does discuss his remorse. And he references that letter in his allocation. Toward the end of it, he goes, I wrote a letter to the court, the court can go check that out. And so I think, regardless of the scope of the waiver, it certainly does include remorse here or lack thereof. Okay, what's the site again? It's 10,660. 10,660. Because the quote you gave from the allocution really has to do with the jury's decision. That's getting a little closer to lockup. I think it's closer to the line. We cite to this letter on page 111 of our brief. Maybe we should have made it more clear about the letter itself, but I think the question here might just be what the scope of the waiver is. And I think it's also a little confusing because defendants try to say they maintain their, this is a statement about maintaining his innocence. It's not really what he says. He doesn't really say, I am innocent the way some defendants do in other cases. And so it's not clear that this is a case like lockup or like Thomas where defendants just go, I'm innocent. Or in the case of lockup, possibly don't say anything at all. And so by speaking, by writing this letter, Norian has waived his Fifth Amendment rights to remain silent. The court could consider that considering his lack of remorse. The second point I'll make on this, Your Honors, is that Norian has to prove that if the court considers his lack of remorse improperly by considering his Fifth Amendment rights, it had to affect the sentence. There's no evidence that the court did that here. In other cases like Mitchell, the court says I've held it against you that you didn't confess. Or in lockup, the court says, I've sentenced you I won't reconsider it because you haven't confessed. That's not what's happened here. The court mentioned Norian's statement, lack of remorse, went on and sentenced him. It didn't say because of your silence, because of your Fifth Amendment right, because you didn't confess, I'm going to sentence you to a higher sentence. The last thing I'll note here is that this too is viewed for plain error. Norian did not object after the court made these statements. He argues Hulking-Hernandez somehow preserves this, but that only preserves a claim that your sentence is too high. It doesn't preserve a claim that somehow the court violated your Fifth Amendment right. And the last thing I'll note is that they argued briefly in their reply briefing in this court this morning that the court made a point to raise this issue on its own and decide it. The court never decided the Fifth Amendment issue. The court never expressly said, there's an issue here about the waiver of the Fifth Amendment right, I'm going to decide that in the government's favor or against the defendant. The court just made this statement and moved on. If there are no more questions, Your Honor, I'm happy to. One, just quickly, Pinkerton's always difficult. As to the money laundering accounts where they weren't Norian's own accounts, how does Pinkerton work there? Pinkerton works because Norian would be guilty for the substantive crimes of any co-conspirator as long as they were within the scope of the conspiracy and reasonably foreseeable to him. And so because the substantive accounts were all the object of the conspiracy, Norian would know that those accounts were reasonably foreseeable and they would be within the scope of the conspiracy. Okay, you're done. Do you all, do either of you all have any questions? Okay. Thank you very much, Your Honors. All right. We'll hear from Newton again with a brief rebuttal. Thank you. The Supreme Court has said so many times in applying the plain language or the plain meaning rule, you must consider context. You don't just pick the dictionary out and look at the term out of context. We have to remember this is the health care fraud statute and the Section 24B is defined health care benefit program. In Cooper, this Court's decision in Cooper, which I cite in my briefs, it was interpreting the anti-kickback statute, but it was talking about a term in that statute that the Court said you've got to look at it not in the dictionary definition but in the technical medical health care definition. Similarly, the word plan, you can't ignore the context. That itself supports the argument that the ordinary meaning in that context is insurance, but it is bolstered by a completely independent argument, which is and this is where the Shaw case actually helps me, doesn't hurt me, or at least the statute at issue in Shaw. Federal health care, federal health benefit, however, whatever the term is in the anti-kickback, it superficially looks like the same definition in 24B, but it's different because it says insurance or otherwise. That's missing from 24B. The Supreme Court's also said when you look at one statute, you... Why is or otherwise broader than any? Any is a... Thank you for mentioning that. I cite in my reply brief three or four U.S. Supreme Court cases that say any cannot be used to transform the meaning of a statute. Expansive, yes. Transformative, no, is what they say. So otherwise is transformative and any is not? Yes. I cite cases that say otherwise is incredibly broad. I cite cases that say any must be looked at with respect to the object of the word any, and the object is plan. So if a health care benefit, I'm sorry, if a workers comp scheme is not a health care plan, or if a workers compensation scheme is not a health care plan, then putting the word any in front of plan is utterly irrelevant. Sure. Any kind of health care, of health insurance. So for instance, in Anderson, it was Blue Cross Blue Shield not directly serving as the underwriter or the insurer. They had a contract with a self-insured employer. And this court said, well, that's enough to qualify under the section 24B definition because there's a contract where health insurance is provided. You incorporated the government's sentencing argument as to your client, the monkey emoji? Oh, yeah, yes, yes. But you heard there was a little bit, when the government stood up, there was a different specific answer. Do you agree or not agree that that was responsive to your closing argument? I think in a case like this, you have to look at the evidence in a light most favorable to the appellant here who is alleging an error in harm. And so the government has a burden to show that wasn't referring to my client. If there's any ambiguity. Right. But a lot of the evidence was affirmative. It wasn't hiding. It was that he wrote false lines on the checks that he wrote. He wrote false descriptions for one of the cashier's checks. That's correct. So that's affirmative. That's not really the prosecution theory there is he's fully, integrally involved with the family. He's not denying knowledge and hiding. Not about health care fraud. Okay. This is back to your FECA argument. Well, no, no. This is distinct from that. So there's two arguments I have about count one. One is turning on FECA. That would just get me a new trial on the Blue Cross Blue Shield. The other one is there was insufficient evidence. Mr. Rydberg knew of the medically unnecessary nature. I'm not disputing the kickbacks for this purpose of insufficient evidence. Kickbacks don't give you sufficient evidence. You've got to have proof he did not know there was medically unnecessary. Proof he knew there was medically unnecessary prescriptions. And that's what the monkey thing is harmful to him. Okay. I'm out of time. Okay. Yes. Thank you. Thank you. And we'll now hear from I'd like to first address the three monkeys slide once again. Judge Lindsay found the error. There was a bench bar conference. He determined that the government had overstepped. He then said that he was going to give a corrective instruction to the jurors. And while he did, it wasn't a complete corrective instruction. And so our argument here is that this allowed the jurors to find a lower mens rea when determining that there was guilt. And while the government may argue that this was a brief snippet of the government's closing and that it, I'd like to first acknowledge, as Your Honor did so, this wasn't rebuttal. And that is impactful. The timing is important. Secondly, we're here today before the court for 40 minutes. If in one minute I do something outlandish, it is going to be something that you remember. So you're saying it was preserved and therefore we're just asking about prejudice. Yes. The curative instruction wasn't sufficient and you preserved that too. But again, sort of a version of the Ryberg question. A lot of the evidence the government had in this case was affirmative guilt, like bringing the pads that had patients' names directly to Aguiar. I would say that a lot of the government's evidence was circumstantial. Much of it pointed to James Norian's guilt and specific evidence of his knowledge and mastermind. That's true. Norian was the kingpin. True. But was there theory ever really that your client was making himself willfully blind? I believe so. I believe so in the sense that there wasn't a significant amount of evidence showing that Mr. Norian knew who the doctors were, what the arrangements were with the doctors, what the payment arrangements were that were occurring. He had no involvement with the money orders. James was the one fully involved in the kickback side. That's correct, Your Honor. And so I'd like to just briefly address the sentencing once more as my time is running close to ending. Please look closely at that letter when you do. I actually think, if I may complete my thought. Finish the sentence. I was present at sentencing and I am familiar with that letter and I do not believe that it indicates that Mr. Norian waived his Fifth Amendment right. Okay. Thank you, both sides. We appreciate your arguments and we will now decide this case."
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"stt_transcript": "We have some special visitors this morning to watch oral arguments. They are from the Archbishop Shaw High School. Welcome. We're happy to have you. The first case on our docket this morning is 25-30078, United States v. Talbot. Mr. Chapman. Good morning, may it please the court. Ronald Chapman on behalf of Adrian Dexter Talbot. I have reserved five minutes for rebuttal argument. I intend to address today in this order the court's denial of a competency hearing in July before trial, the Ruan instruction as being insufficient, the other acts evidence, and time permitting the court's determination under 856 that a physician can be convicted under the drug premises statute for this sort of conduct. First, with respect to competency, I believe it's important to start by addressing the standard here. We advocate for an abuse of discretion standard under Flores-Martinez due to the court's denial. While certainly clear error could apply to the prior determinations of the court, here in July before trial, the court readdressed the issue of competency and determined that a competency hearing should not be afforded to Dr. Talbot. Some facts are very important to this analysis. First, back in 2014 and 2015, Dr. Talbot showed signs of progressive decline and worsening, ultimately resulting in him giving up his medical license. He went to a neurologist who later took over his practice and was a co-defendant in the case. That neurologist diagnosed him with dementia. He's 100% service-connected disabled as a result of a Veterans Administration finding, and his dementia likely stemmed from traumatic brain injury he received while he was in the military, in the Navy, as well as his time at Camp Lejeune, North Carolina, where he consumed drinking water that the government has determined was harmful to his health, affording him a 100% service-connected disability. He was interdicted by Louisiana and deemed not competent to handle his own affairs and sat next to me during the entire trial without the ability to remember any of the events in question, without the ability to participate in his defense at all. Despite that, the court determined that he was malingering during initial hearings and determined that his condition hadn't progressively worsened enough to afford a subsequent competency hearing before trial. Recall, trial happened in 2024. His initial symptoms started in 2014 and 2015. Dementia is a condition well known to result in progressively declining conditions, and the court admitted as much when it had a November 2023 competency re-evaluation because of the progressive decline. Despite all that, on the eve of trial, the court determined that regardless of the new finding by a neurologist, Dr. Ranganathan, that sufficient evidence had not been produced by the defense. Respectfully to the court, this was a burden shift. The court required, instead of adhering to its duty that it simply re-evaluate Dr. Talbot when some evidence exists of cognitive decline, a burden shifted to the defense to require proof, additional testing of a cognitive decline, and then it evaluated the case under a standard of worsening as opposed to a new fresh standard of whether at this place in time competency could be established, which is the government's burden. The concern here is if this court determines that that finding was appropriate by the district court, that defendants, after an initial competency determination, would have to show some worsening of their condition instead of re-approaching the competency evaluation anew. A precedent like that would almost surely result in those with conditions such as dementia, which require cognitive decline, to go forward and affirmatively show a worsening condition as opposed to allowing the court simply to re-evaluate competence. A competency hearing wouldn't have taken too long, it wouldn't have been disruptive to the trial, and at the end of the day, the court could have determined that Dr. Talbot received a competency hearing, evaluated him appropriately, and moved forward with trial appropriately. Instead, what the court decided to do was change the standard and say that Dr. Talbot's condition cannot be shown to have worsened. That inverts the finding under 4241, which should have placed the burden on the government once a doubt is raised with respect to competency. The question that the court may ask is whether or not there was a sufficient doubt raised. Well, Dr. Ranganathan's finding, a most recent evaluation done in July of 2024, determined that he was not competent to stand trial. That evaluation was done by a properly licensed neurologist. In addition, additional VA medical documentation showed 100% service-connected disability. In addition, Dr. Nelson, Dr. Talbot's treating physician, also continued to treat him for dementia, and his notes existed in the record to show that he was continually worsening with his dementia condition. The court decided to rely on its own courtroom observations, in part, in deciding that Dr. Talbot didn't require a hearing. Those findings should be rejected by this court, especially when multiple experts evaluated Dr. Talbot and determined that he was not competent to stand trial. That includes Dr. Croft, Dr. Beghali, as well as Dr. Sherman, who didn't do an evaluation, but I would like to address Dr. Sherman's findings as well. One of the main issues raised by defense with respect to competency is that the proper testing was not conducted, that under a Daubert standard, the court failed to properly address whether or not the testing was sufficient. Here, there was a finding that Dr. Talbot was malingering, which is a particularly damaging finding for a defendant, especially one who is a physician, in overcoming. In order to determine that Dr. Talbot was malingering, the court should have looked to the actual testing to determine if malingering existed. Dr. Block and Dr. Sheffetz both, I believe, had findings that Dr. Talbot was malingering. We take issue with those findings because instead of simply offering malingering tests and evaluating those as the medical documentation requires, these PVT tests, Dr. Sheffetz decided to continue to provide malingering tests until he came to the number of failures that he was looking for. Dr. Sherman, who's a co-author of the book that Dr. Sheffetz would have used for these tests, the PVT tests, wrote a letter to the court that was submitted into evidence indicating that Dr. Sheffetz misapplied the evaluation and was therefore not able to determine, or should not have determined, that Dr. Talbot was in fact malingering. Instead of addressing that question, the court backed away from the findings and seemed to indicate in subsequent orders that it wasn't really relying on those malingering tests and that the reality was that Dr. Talbot's condition wasn't sufficient for him to be considered not competent to stand trial. There was overwhelming evidence of incompetence, 100% VA disability, a state interdiction after guardianship findings in state court, MRIs showing neuropsychological decline, and multiple expert findings of incompetence related to a worsening condition. Without any questions, I'd like to... Counsel, can you address the inconsistency between the medical testimony that your client was slumped over, having trouble walking, unsteady on his feet, versus his wife's testimony that he can walk several miles a day, do hundreds of push-ups, be left alone for weeks at a time while she's on a business trip? Yes, thank you, Your Honor. I believe that those findings are somewhat taken out of context. First, Dr. Talbot was notably somebody who kept himself in good health when he was well, but as we all know, dementia is not a condition that puts you in the same state every single day. It's a changed condition, and certainly there are some days where he would have difficulty with engaging in routine activities of daily living, and other days where he was in complete health. Also, those findings weren't made with respect to a specific time period. What we see is that all of this information was lumped together to say sometimes Dr. Talbot was well, and sometimes he was not well, but nobody really said we haven't seen a progressive decline. Instead of looking at that, it would be best for us to look at the malingering tests, which is what would show malingering, and when we look at those tests, we find that Dr. Shafetz had to modify what the appropriate testing is for malingering to come to a malingering determination. So, I guess what I would offer the court is we could look at that anecdotal information, but it would be much better instead to look at the actual malingering tests, and if malingering is determined, find that under a sufficient scientific basis that has been considered reliable and admissible in courts, but thank you for the opportunity to address that. Moving on to the Ruan jury instruction, one of the first issues with the Ruan jury instruction, which is not entirely detailed in the briefs, is that when we combine Ruan, and we combine deliberate ignorance, and we combine aiding and abetting, we end up with a watered-down version of the mens rea standard, which is very difficult for the jury to apply. But even if you just look at the Ruan instruction on its own, at the 841 distribution instruction, as we know, the government was required to prove beyond a reasonable doubt that prescriptions were issued outside the usual course of professional practice for other than a legitimate medical purpose. It appears that the instructions included an additional phrase, though, that prescribing outside the usual course was a sufficient condition for a conviction. It's our contention that a sufficient condition makes prescribing outside the usual course look much more like an objective standard, as opposed to what's required, a subjective standard. This would allow a conviction of Dr. Talbot based on negligence, malpractice, and disagreement. In fact, that's exactly what the prosecution did in this case. The prosecution's brief suggests that Dr. Talbot was running a cash-based pain clinic, a phone mill. In reality, it sidesteps the fact that most of Dr. Talbot's prescribing, and most of the other providers' prescriptions, when they were prescribing, were for addiction treatment. This was an addiction medicine clinic primarily. There was pain also being treated because many patients who suffer from addiction have complex disorders such as pain, along with addiction, and receive medication. Here, the government decided to only offer evidence related to pain management treatment, but then when looking at the totality of the prescriptions, tried to address all prescriptions as if they were under a pain management standard. First and foremost, that's inappropriate, and second, it leads to conviction based on medical disagreements. Now, the primary medical disagreement here is that the government contends that Dr. Talbot was not seeing his patients. In reality, there's no standard that when a nurse practitioner or a PA is evaluating a patient personally, that a physician can't also issue a prescription. That's been allowed by the DEA, federal statutes, and the government produced no information to suggest that a physician must see a patient before issuing a prescription, especially when a mid-level provider is doing the evaluation and treatment. But instead of addressing that fact, the government simply pointed at the fact that Dr. Talbot was issuing prescriptions without seeing patients, and therefore tried to get the jury to determine that those patients were unlawful. In reality, that would be more of a malpractice allegation, not an intentional drug dealing allegation. Instead, what the government should have done is evaluate the care, the medical conditions of each individual patient to determine whether or not those prescriptions would be considered unlawful under 841. Now, with this watered-down standard outside the usual course of professional practice, the government was able to say there's an objective standard that you must see your patients. Dr. Talbot didn't see his patients. Ergo, every prescription would be considered unlawful under this standard. And that's not at all what the Supreme Court said in Moore. That's not at all what the Supreme Court said in Gonzales v. Oregon. Instead, we must look for drug trafficking as conventionally understood. Those are not my words. Those are the words of the Supreme Court. Those are words that were not included in the Ruan decision, but the Ruan decision was for a different purpose. Fundamentally, if Dr. Talbot is to be convicted, he must be convicted as a drug dealer, not somebody who engaged in a practice that was disfavored. And the practice that was disfavored according to the government was that he wasn't there when patients were being seen by mid-levels, but still... Counsel, would you agree that dispensing medications without seeing the patient at least is some evidence or is relevant to the question of drug distribution? Yes, based on the context, Your Honor. Absolutely relevant. If it were the only evidence, maybe, you know, it's irrelevant. I would consider that relevant, and I believe the concurrence in Ruan suggested as much, that a departure from a standard of care may be considered relevant, and we would certainly concede that. But the real issue here is not whether or not he departed from a standard in the community, which the government didn't even show. The analysis really should be whether or not he was trafficking to patients, ergo giving prescriptions to patients who did not need it for a medical purpose. That question is much different in an addiction context, which is what Dr. Talbot was, an addiction medicine provider. That's where the Ruan instruction becomes very difficult. I just have a few seconds left, and I would offer that none of the cases I saw from the government related to 856 stand for the proposition that it suggests that a physician can be convicted under this statute 856 for prescribing medication from a purely textualist approach. It simply doesn't fit. Thank you. Good morning. May it please the Court. Ethan Sachs on behalf of the United States. I'd like to discuss the issues that my co-counsel just spoke with you. So starting with competency, I think it's important to recognize the standard of review for both of these discrete claims that he makes. As to the finding of competency, this Court reviews for a species of clear error, which this Court said in Perkins, which is 99F4-811. And I think under that standard, frankly under any standard, but certainly under that standard, there can be no clear error that the District Court concluded that Mr. Talbot was confident. I'd just like to go through some of the evidence that the District Court relied on to reach that conclusion. The first is that the District Court really relied on the expert testimonies of Schreiber and Denny. We heard a lot this morning in his brief about Dr. Shafetz. That was the original expert, the jointly proposed expert, who reviewed his Dr. Talbot. And in many ways is irrelevant, because in 2023, the District Court conducted what it described as a de novo competency hearing, which Schreiber and Denny testified, and they also concluded that Mr. Talbot was both competent and malingering. Just to give Your Honor some of the evidence. Is there an accepted definition of what malingering means in this context? I'm not sure there is. I kind of know what it means as a general matter, but we keep talking about malingering. Yeah, I don't know if at any point the District Court defined it explicitly, but I think it's just a common-sense, ordinary definition. Faking it? Sorry? Faking it? Well, I don't necessarily mean to be superjorative, but I think... Well, it doesn't sound positive. It's certainly not positive, but I do think it is something close to faking it. Yeah, I don't think the Court ever used that specific words, but I think it's at least embellishing. And as Your Honor's question mentioned earlier, the issue of his wife testifying that he did hundreds of push-ups a day, and then when he went to the medical doctors, appeared hunched over and could barely stand. In addition to that, maybe something else that touches on the flavor of it, is that Manny and Schreiber testified that Mr. Talbot, during the examination, expressed memory loss only as it pertained to this subject matter. As to other things... How old was he at the time? I'm just curious. I believe he was in his 60s. I'm not exactly... I apologize, but I think... I'm not disputing that he's a young person and that someone of his age could have dementia. Oh, I'm glad you think 60 is young. No. Yes, absolutely. I hope to be able to do hundreds of push-ups a day at 60, but... As do I. But I think in addition to the expert's testimony, the district court also reviewed itself, the medical records that were issued in this case, and determined that really this diagnosis of dementia sprung from a self-diagnosis that Dr. Talbot had conducted. And then, as I mentioned before, observed Dr. Talbot's wife testifying at the hearing and found her to lack credibility. That's sort of the first competency issue. The second is this sort of late-breaking request right when trial is starting for yet another competency hearing. And there, as my friend mentioned, the standard is an abuse of discretion. So the district court... This court reviews the district court's decision for an abuse of discretion. The standard is, is there a reasonable cause? And I think it's important to keep in mind that at this point, Dr. Talbot had already been examined by at least eight experts and over a course of years. And the district court, on its own intuition, I think rightfully recognized dementia does have the possibility to be progressive. And so after the 2021 hearing and evaluation, which was really pretty thorough, the district court's own intuition said, in 2023, I'd like another competency hearing, and I think we should do it again. And have them evaluated by other experts and review their testimony. So the idea that the district court has sort of gave short shrift to the expert here is just really not supported by the record. And I just want to mention this idea of interdiction. In Louisiana, what I understand, that is not an adversarial process in which it's tested. That is sort of a process in which a family member, usually a family member, joins someone and gets a determination. It's not the same thing at all. It's not the same standard at all as a court finding someone incompetent in this context. If your honors have no questions about the competency, I'm happy to move on to the jury instructions. I think that the clearest way to resolve this is just to look at page 1266 of the record, which lays out the elements for the substantive, controlled substantive counts here. And see element three, the defendant knew he was acting in an unauthorized manner or intended to act in an unauthorized manner. That is precisely what Ruan requires. It follows this court's pattern during instructions, is undoubtedly a correct representation of the law, and there's no issue with that. What Dr. Talbot appears to be complaining about is the definition of unauthorized, which came earlier in the instructions. And in this language of a sufficient condition to convict, came in describing how one determines, how a juror can determine whether something is unauthorized or authorized. And those really have two prongs. And what that instruction, if you read it, I'm happy to read the whole thing, but I think your honors can see on 1265 that it's really saying either prong is sufficient to establish the unauthorized element. Not that either prong is necessary or affects the mens rea, because the mens rea for counts two through five is explicit on page 1266. And that says the defendant knew he was acting in an unauthorized manner or intended to act in an unauthorized manner. One additional, I think that's enough to resolve that. Just one thing I'd mention is we think this case is even easier because it's that claim should be reviewed for plain error. His brief does say that he objected to it contemporaneously, but I would urge your have any doubt to review the pages of the record that he says qualify as an objection. He certainly objects to the paragraph in which that instruction lies. But what this court said in Ajayi at 64 F fourth at 248 is merely recognizing or pointing out the portion of a jury instruction that one objects to is not sufficient to preserve the argument. You have to raise a specific ground on which you are objecting. And he didn't do that here, neither at the charge conference, which is at 4536 and 4537 or in the original jointly proposed jury instructions to which he lodged several and many objections in the footnotes and not anything about this specific issue or that specific language that he now complains about. What page of the record were you referring to with respect to the jury instruction? So there's two. There's the one, sorry, your honor, the objection. I know that the jury instruction you were talking about earlier. I was just trying to find it. Sure. So 1266. Yeah, is where the district court lays out. It's counts two through five, the elements for the substantive distributing controlled substances offense. And he knew he was acting in an unauthorized manner. I'm sorry, your honor? Instructor says that he knew he was acting. Yes, that's correct. Or intended to act in an unauthorized manner, which is exactly the language that Ruan uses. This is objective component to this crime. If your honors have no further questions about the instructions, I'm happy to touch on the 856 count briefly. Again, I think the simplest way to resolve this is to say what this court has said for, I think, close to five decades now, that a doctor can undoubtedly be convicted of distributing controlled substances. And in fact, it's not just that the court has affirmed convictions of that. It said it specifically rejected this exact argument that Dr. Talbot raises now. I think the clearest place it's done so back in the seventies, it's Harrison 651 F second at 354 note one. It expressly rejects this idea that a doctor can only dispense and not distribute. That's consistent with every court of appeals that we've been able to find to address this issue. Our brief lists them at page 31. It's the sixth circuit, the seventh circuit and the 10th circuit. And many of those cases are quite old at this point. They're from the seventies or from the eighties. And I think that's particularly important here because 856 was enacted in 1986. So not when the original controlled substances back was connected. And at the point that Congress enacted it, those decisions that I just mentioned were already on the books saying a doctor can undoubtedly be convicted of distributing controlled substances. So Congress knew that when it used the word distribute in 856. And if it had any doubt about that, one would think that it would have addressed it or done something about it. Um, I think the clearest way to see this principle is just judge sands, um, federal jury instructions, manual or treatise. And I can just quote from that. It says, as far as practitioners are concerned, the terms dispense and distribute have no functional difference. And then it goes on to say that a petitioner could be charged with either one. We're aware of no court that takes a view that a doctor could not be convicted of distributing controlled substances. Going back to the jury instruction really quickly. Sure. When did the knowingly or intentionally distributed, was that, I thought it said the courts at first, second, third, there was no intentionally piece in that. When did the intentionally piece come in? In other words, if you intend to prescribe a controlled substance and you can do that lawfully, so that doesn't mean that you know, when you say it was, um, knowingly or intentionally distributed. Well, Your Honor, I think it's actually the third element there that I think is the most important and direct on 1266. Yes. Third, that the defendant knew he was acting in an unauthorized manner or, you know, when he dispensed or distributed the controlled substances or intended to act in an unauthorized manner. I think the intent there is specifically in an unauthorized manner. Correct. And so I think that's specifically what Rwan says, that the government needs to prove that a defendant knew or intended to act in an unauthorized manner. And that's tracking the language of the statute. And as Rwan describes, it's basically implementing a subjective requirement into the statute. It's a little ambiguous. I understand the argument. I take your point about dispense and distribute that the cases seem to have treated them, if not interchangeably, as overlapping in a way. Is it true, though, that the statute defines the terms dispense and distribute? It does, Your Honor. Yes, we acknowledge. Is it right to say it defines distribute and to deliver other than by administering or dispensing? It does. Yes. That's confusing. I understand, Your Honor, that Congress probably could have worded that more efficiently, we think, or more clearly. I'm glad you can say that about so many things Congress does. But yes, it's a little confusing. Sure. Yes, Your Honor. But I do think that's why I tried to mention the point about when Congress enacted this. Right. Because they knew that courts were treating doctors as being allowed to distribute or dispense and chose the word distribute, I think, with the understanding that doctors would fall under 856. And it's also odd that they would have two different verbs doing exactly the same thing that runs against the way we normally think about the way Congress writes. Yeah. But I think what Judge Sands' treatise or manual gets to this, I think it's really about distinguishing between sort of the drug dealer and a trap house, if you will, and a practitioner to clarify that really your sort of common day drug dealer can't dispense but can only distribute. And the courts just haven't gone the other way and said, well, a doctor can only dispense and not distribute. A doctor can do both. And I think, frankly, that kind of makes sense in a situation like this in which medics had turned into what we understood to really and what some witnesses testified was a pill mill. At that point, it's not so different than a trap house distributing illicit drugs. And what does the Sands' manual say about the phrase and the definition of dispense pursuant to a lawful order of a practitioner? Yeah. So I think there's some disagreement among the courts about what that exactly means. I mean, we haven't briefed it here, and I don't understand Dr. Talbot to have raised it. But I think there's some question of whether it's the act itself that can be unauthorized or whether it goes to the practitioner's license, whether it's already been called into question. So I think there are cases in which that can be a hard call if someone is a doctor but has some restrictions already on his license. But I don't think that really came into play here at all. But I agree, Your Honor, it's not the perfectly worded statute. We agree. But we think the courts have made the most common sense definition of it possible, or interpretation of it possible. If Your Honors have no further questions, we'd be happy to rest our briefs and ask that you affirm. Thanks very much. Thank you. On the dispense versus distribute point, Mr. Chapman. Yes. Could you respond to the argument that our precedent sort of treats the terms interchangeably? Yes. I think that it can't be said that Congress knew that these terms had been watered down by case law and therefore used them interchangeably in the statute. They're defined in the statute. And according to the entire regulatory scheme of the Controlled Substance Act, they mean separate things. And here's why this is very important. Under the trap house statute, manufacturing, distributing, using drugs can be criminal conduct. And it's evaluated based on whether or not that facility was doing that as a primary purpose. Doctors prescribe, they prescribe prescriptions. Congress would have put distribute into that, I'm sorry, dispense into that statute had they intended for it to be applied to doctors. And then what would have happened is that instead of evaluating a doctor's order, you would have convicted him simply because he issued a prescription for a controlled medication. That's what the government tried to do in this case. They sent a laundry list of prescriptions and said these are unlawful because they are given by this practice and therefore Dr. Talbot should be convicted. Congress doesn't want that. They have 841 for a reason and 841 charges should be evaluated as to whether or not there was a legitimate medical purpose for the prescription. The government can't do an end around by charging 856 and simply moving on with the analysis. That's why these statutes are different. That's why Congress made a difference. And using perhaps some inartful language in circuit and district court cases to suggest that these terms don't mean what Congress intends, I don't think is appropriate in this case. I'd just like to address a few other issues related to competency. First, the government seems to be running away from the Dr. Sheffet's finding and that's fine. But then anywhere we see the term malingering in the record, we should just erase that. The district court determined that Dr. Talbot was malingering. They did that based on Dr. Sheffet's finding. Dr. Sheffet's administered PVT tests and changed the way that he evaluates those from what the literature says, determining that Dr. Talbot was therefore malingering. The court can't say we ignore Sheffet's and then we rely on him in the same breath. As a result, this case should be remanded for a reevaluation of Dr. Talbot. And counsel, is Sheffet's the only doctor who testified that the memory loss seems to be associated primarily, if not exclusively, with this case? I'm glad that the court brought that up. I don't know if that was specific to Sheffet's. So I don't know the answer to that question, unfortunately. But I will say that with respect to the memory loss issue, that was taken out of context. Dr. Talbot was indicted in, I believe, 2022, for conduct that occurred in 2016. He has dementia. He's not remembering things that happened in 2016. But he's remembering his name. He's remembering what he did a few weeks ago. Of course, Dr. Talbot did not remember specifically the criminal conduct alleged because the government indicted this case days before the statute of limitations expired. He had dementia and he was being asked about conduct that occurred as far back as 2014, 15, and 2016. That distinction should not be important to the court. Instead, we look at objective testing and determine whether or not that was sufficient. And in this case, it was certainly not sufficient. While the government didn't address it during oral argument in their briefs, they suggest that Dr. Talbot chose the experts. These were court-appointed experts. These were based on an agreement. Dr. Talbot may agree to a certain expert being used. That doesn't change the standard. And the standard under Daubert and the standard under the competency statute requires that he be fully evaluated and there's a fair hearing. We can't sidestep that. The government indicated that Dr. Talbot had somehow self-diagnosed dementia. That's untrue. Dr. Prasad, who later became Dr. Talbot's co-defendant, evaluated Dr. Talbot as a neurologist. Dr. Talbot went to see him. They had no special relationship. He determined that he had dementia. Dr. Talbot then started taking actions to change the nature of his employment and moved to the VA as a result of those findings. He later gave up his license to practice. He reported his dementia findings to the medical board and he underwent significant medical treatment and evaluation. There's a lot of misunderstandings in the record here and I think that that is, in part, a large misunderstanding that's put forward by the government. There is no question that Dr. Talbot had dementia and was treated for it and was diagnosed by credentialed providers. Thank you."
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