[00:00:00] Speaker 04:
So on the first case, it's Abdel Fattah Elawendi 22 versus Jason Takagaki and the Department of the Army 22-16980 and I know on the calendar,

[00:00:22] Speaker 04:
that we're going to have two people arguing for the petitioner.

[00:00:27] Speaker 04:
And I note that you're splitting your time.

[00:00:30] Speaker 04:
And so that means you each are taking five minutes and that your time, if you're going to reserve any rebuttal time, it's within that five minutes.

[00:00:41] Speaker 04:
And then the department has 10 minutes total.

[00:00:45] Speaker 04:
So and I say this and I'm not saying to this to because your students I say this to everyone that's splitting time when you're the second person sitting there and that looks like Mr. Collins there but when you're splitting time and I know and it's not uncommon for people to split time and the courts asking questions of the first person and you see the clock

[00:01:06] Speaker 04:
tick tick tick tick and you're thinking like they're taking all my time I've prepared for this and then what do I do do I do I go leap up here and pull miss more down or whatever I promise you if you are the second person arguing if we take more time with the first person you still get your time all right because that's time that the court has allotted because we need to have those questions answered so that we can do this

[00:01:31] Speaker 04:
I know also, so we have two certified law students, is my understanding, and it looks like we have a supervisor here.

[00:01:39] Speaker 04:
I want to make sure, because that's important.

[00:01:42] Speaker 04:
And so is that Mr. Brown?

[00:01:44] Speaker 05:
That's correct, Your Honor.

[00:01:44] Speaker 04:
So you're supervising them.

[00:01:46] Speaker 04:
So it's legal for them to argue in front of us, correct?

[00:01:49] Speaker 04:
Yes.

[00:01:49] Speaker 04:
Are you the supervisor of the clinic?

[00:01:52] Speaker 00:
No, Mr. Kellman is here, Jeffrey Kellman.

[00:01:54] Speaker 00:
He's the supervisor of the clinic.

[00:01:56] Speaker 04:
OK.

[00:01:57] Speaker 04:
But you're supervising the law students that are arguing.

[00:02:02] Speaker 04:
All right.

[00:02:03] Speaker 04:
Well, thank you.

[00:02:04] Speaker 04:
OK.

[00:02:05] Speaker 04:
So we're ready on the first case.

[00:02:09] Speaker 04:
And so please, I know that it looks like Ms.

[00:02:12] Speaker 04:
Morris come to the podium, but please state

[00:02:16] Speaker 04:
your name, and who you're appearing for, and you have five minutes.

[00:02:20] Speaker 00:
Good morning.

[00:02:21] Speaker 00:
Good morning, Your Honors.

[00:02:22] Speaker 00:
And may it please the court, Amelia Moore, certified law student on behalf of Appellant Abdel Fattah Alawendi, being supervised by Professors Anthony Brown and Jeffrey Kelman.

[00:02:33] Speaker 00:
Your honor the goal for today is for me to argue the first five minutes primarily on the first step of the Abbasi factors Regarding whether or not this case arises in a new context and my co-counsel to argue the second step and we would like to reserve one minute of Mr. Collins time for rebuttal All right, so you you plan to use your your total five.

[00:02:53] Speaker 04:
Yes.

[00:02:53] Speaker 04:
All right, you can proceed

[00:02:56] Speaker 00:
Your honors, we're here for one primary reason today, and that is because the district court failed to apply the correct analytical framework when determining whether or not to recognize Mr. Elawendi's Bivens claim.

[00:03:07] Speaker 00:
Had it done so, it would have found that Mr. Elawendi's claim arises in the same context as Bivens because there are no meaningful differences between his claim and Bivens.

[00:03:16] Speaker 00:
A meaningful difference is one that implicates separation of powers concerns.

[00:03:20] Speaker 00:
And the court in Abbasi was clear about this.

[00:03:23] Speaker 00:
They said that separation of powers principles should be central to the analysis.

[00:03:27] Speaker 00:
And so what the court did there is they identified a number of different ways in which a claim might differ such that it would require the judiciary to impede into the functioning of either the executive branch or Congress more than the court did in Bivens.

[00:03:43] Speaker 03:
In this case, it's an army police officer, and in Bivens, it was a federal bureau of narcotics officer.

[00:03:53] Speaker 03:
It seems pretty close to Bivens.

[00:03:56] Speaker 00:
Right.

[00:03:56] Speaker 00:
Of course, there is a military aspect to this case.

[00:04:00] Speaker 00:
But with an application of the Abbasi factors, this demonstrates that this military aspect of the case doesn't render the claim meaningfully different.

[00:04:09] Speaker 00:
And I say this for two primary reasons, one,

[00:04:13] Speaker 00:
Mr. Alimundi was not a service member.

[00:04:15] Speaker 00:
And under the Supreme Court's Bivens jurisprudence, in which they've looked at Bivens in the context of the military, there's only been a categorical bar on claims against service brought by service members in two contexts, under Chappell against commanding officers and in Stanley, for injuries arising out of incident to service.

[00:04:35] Speaker 00:
And so that categorical ban doesn't apply to Bivens.

[00:04:40] Speaker 04:
Your client is, I just want to be sure I have the facts.

[00:04:45] Speaker 04:
Yes.

[00:04:45] Speaker 04:
He, the Presidio of Monterey Police Department officers are employed by the Army and have jurisdiction on the military installation.

[00:04:54] Speaker 04:
Is that correct?

[00:04:56] Speaker 00:
Yes, Your Honor.

[00:04:57] Speaker 04:
So if that is true, how can we as judges predict

[00:05:01] Speaker 04:
the system-wide consequences of recognizing a cause of action under Bivens for Fourth Amendment violations by police officers on military installations.

[00:05:12] Speaker 04:
So we're talking about Egbert.

[00:05:15] Speaker 00:
Yes, Your Honor.

[00:05:18] Speaker 00:
One of the primary aspects of this is that the military context of this case doesn't impede into the functioning of the...

[00:05:25] Speaker 00:
It wouldn't require the judiciary to second-guess or impede into the functioning of the military.

[00:05:29] Speaker 00:
And that's because it's a very isolated portion of the claim.

[00:05:34] Speaker 00:
The Fourth Amendment violation took place at Mr. Elawendi's personal apartment.

[00:05:39] Speaker 00:
It was a seizure of his personal laptop.

[00:05:42] Speaker 00:
And again, he is bringing a claim against only a low-level federal investigator.

[00:05:46] Speaker 00:
And so when you compare this to a number of cases where the military context was implicated, you see that the

[00:05:54] Speaker 00:
claimant there was bringing a claim against high-level executive officers.

[00:05:59] Speaker 04:
Well, in the Bivens case, he was low-level too.

[00:06:02] Speaker 00:
Right, your honor.

[00:06:04] Speaker 00:
But in that, and exactly, the claim is identical there to Bivens then.

[00:06:13] Speaker 00:
And this demonstrates why, when the district court should have applied the Abbasi factors, it shows that because it was identical to Bivens and the fact that they were both low-level investigative officers,

[00:06:25] Speaker 00:
that it doesn't require the judiciary to impede any more than Bivens did.

[00:06:28] Speaker 04:
I have a question about some cases, and it might be for your co-counsel, so if it is, you can toss it down the road and you can get ready for it.

[00:06:35] Speaker 04:
But in three recent cases, Mejia versus Miller, and Pettybone versus Russell, and Sheik versus DHS,

[00:06:48] Speaker 04:
On the Ninth Circuit there we have found the availability of an oig Process to be a special factor that counsels against recognizing a Bivens claim Why isn't that the same here?

[00:07:01] Speaker 04:
Is that you or is that him?

[00:07:03] Speaker 00:
I?

[00:07:03] Speaker 00:
We're both prepared to answer questions regarding any topic, so I'm happy to address that and

[00:07:08] Speaker 00:
So the reason that the inspector general claim is not an alternative remedy, which would foreclose Bivens, is primarily because through AR 27-20, the Army acted to preserve the availability of a Bivens claim for claimants.

[00:07:27] Speaker 00:
AR 27-20, it states that constitutional torts may not be cognizable under any provision.

[00:07:35] Speaker 00:
And then it directs claimants to DA pamphlet 27-162, which states that claim may be brought under Bivens.

[00:07:44] Speaker 00:
And so this is similar to Lanouza in the fact that- So you're relying on that army pamphlet?

[00:07:50] Speaker 00:
Yes.

[00:07:51] Speaker 04:
To argue that the army has expressly allowed Bivens actions?

[00:07:55] Speaker 04:
Is that your best authority?

[00:07:58] Speaker 00:
Yes, Your Honor, and that is because although expressly allowed, the words may states that they have preserved the availability of a claim.

[00:08:08] Speaker 00:
And the Department of the Army was delegated the power by Congress to create regulations through the Army, and they created the Army Claim System.

[00:08:19] Speaker 00:
And those claim systems is how the Department of the Army deals with certain claims brought by

[00:08:25] Speaker 00:
by its employees.

[00:08:27] Speaker 00:
And so this is a federal regulation and although this is a DA pamphlet, it is directly referenced and- You're saying that the pamphlet is a federal regulation?

[00:08:38] Speaker 00:
No, Your Honor, AR 27-20, the Army Claim System is a federal regulation, but it directly is referenced in that subsection.

[00:08:46] Speaker 04:
Okay, we've taken you over time.

[00:08:48] Speaker 04:
Thank you.

[00:08:48] Speaker 04:
That's not your fault.

[00:08:49] Speaker 04:
That's that we we wanted to ask the question.

[00:08:52] Speaker 04:
Let me find out if my colleagues have any additional I actually did Miss more.

[00:08:57] Speaker 02:
Thank you so much So it's my understanding that mr. Llwendy did file grievances with various entities Isn't that an alternative alternative remedial structure?

[00:09:07] Speaker 02:
Like what was presented in Egbert I?

[00:09:12] Speaker 00:
what Egbert specifically says is that I

[00:09:16] Speaker 00:
The inquiry there is whether or not when an alternative remedy is presented, if the executive branch or Congress finds that alternative remedy sufficient to secure an adequate level of deterrence, then it's not the job of the judiciary to second-guess that by imposing a Bivens remedy.

[00:09:33] Speaker 00:
But there's nothing in that case that specifically states that it needs to be the only remedy.

[00:09:39] Speaker 00:
And so in Egbert, although they created the grievance process and the IG complaint process,

[00:09:45] Speaker 00:
They didn't otherwise act to preserve the availability of a Bivens remedy.

[00:09:49] Speaker 00:
Here, the Department of the Army created the complaint to the commanding officer through AR-15-6 and the IG process, but they otherwise acted by including that language in AR-27-20 to preserve that availability.

[00:10:04] Speaker 00:
And this is similar to Lanusa.

[00:10:06] Speaker 03:
and the fact that their Congress included language in the... So you're not disputing that the alternative remedies were available and in fact your client availed himself of those alternative remedies.

[00:10:16] Speaker 03:
You're saying that we can really overlook that part of the Egbert analysis because we have this other

[00:10:25] Speaker 03:
manual that expressly reserves the right to a Bivens action.

[00:10:30] Speaker 00:
Yes, Your Honor, and this can be demonstrated through Liduza in where the court there recognized that language in the INA, which stated that for the purpose of civil torts and disputes, federal and state officials would be considered to be acting under the color of the law.

[00:10:47] Speaker 00:
they determined that language expressly retain the availability of a Bivens action, even though the defendant there was criminally prosecuted.

[00:10:56] Speaker 00:
And so that would demonstrate that the Congress did not find that other remedy sufficient to secure an adequate level deterrence, so they reserved this ability to bring a Bivens claim.

[00:11:11] Speaker 05:
Thank you.

[00:11:11] Speaker 05:
Thank you.

[00:11:12] Speaker 05:
All right.

[00:11:27] Speaker 04:
I think I'm going to feel self-conscious about we've already had one one lawyer in the hospital now you're here on crutches so it can you tell me that's not our fault it's not your fault your honor I was already in the hospital okay well are you are you in good shape to argue today I am yes all right well please state your your name and appearance for the record good morning your honors and may it please the court Bradley Collins on behalf of mr. Alawendi

[00:11:59] Speaker 04:
So, go ahead.

[00:12:02] Speaker 01:
Well, I just wanted to circle back to a couple of questions that have already been asked about the best authority for our argument and whether our position requires the court to overlook the Egbert analysis.

[00:12:14] Speaker 01:
Our analysis is actually consistent with Egbert.

[00:12:18] Speaker 01:
Egbert states that the court should not second guess the alternative remedial structures that an executive agency has created.

[00:12:28] Speaker 01:
And in this case, the Army has created executive or sorry, alternative remedial structures that are not exclusive of Bivens remedies.

[00:12:39] Speaker 01:
They state very clearly in the regulations that my co-counsel was referencing, suits alleging violation of constitutional rights may be brought against U.S.

[00:12:49] Speaker 01:
employees individually and then they name Bivens.

[00:12:53] Speaker 01:
That's incredibly more clear than Lenuse v. Love, and it's a... Now, sir, are you referencing the pamphlet right now?

[00:13:00] Speaker 01:
Yes, Your Honor, the pamphlet.

[00:13:01] Speaker 04:
Well, I have a little... I'm going to push back on you a bit here, and I have a little difficulty with the, I guess, the imprimatur that you're giving the pamphlet, that you rely on a reference to Bivens and the Army pamphlet to argue that Army has expressly allowed Bivens actions.

[00:13:19] Speaker 04:
Okay.

[00:13:20] Speaker 04:
But why should we read the pamphlet in the way that you're asking rather than as a general statement that people can sue the federal officials under Bivens?

[00:13:30] Speaker 04:
Which is true, but you're basically citing it to say that this to give the impromo tour to this particular lawsuit.

[00:13:41] Speaker 04:
I think you're over reading the pamphlet, so tell me why I'm wrong.

[00:13:47] Speaker 01:
All we're saying, Your Honor, is that the DA pamphlet indicates that the Army does not intend to foreclose Bivens claims.

[00:13:55] Speaker 01:
And I think it's clear if you continue reading the regulation, the very next paragraph talks about defenses to Bivens claims like qualified immunity.

[00:14:03] Speaker 01:
And then the paragraph after that actually incorporates the incident to service analysis into Army regulations.

[00:14:09] Speaker 01:
And they explain, like we've explained in our brief, that it's a two-step process barring

[00:14:16] Speaker 01:
Barring claims brought by service members from activity incident to service, that's paragraph 2-37 in both Army Regulation 27-20 and DA Pamphlet 27-162.

[00:14:24] Speaker 01:
So that shows that not only did the Army intend for, or sorry, recognize Bivens, but they also recognize when certain Bivens claims should not move forward and when others should.

[00:14:39] Speaker 01:
And Mr. Allawendi's case is one of those that should move forward.

[00:14:42] Speaker 01:
because his claim does not arise from activity incident to service because he is not a service member.

[00:15:04] Speaker 01:
I guess I'd like to direct the court to a case, McGowan v. Scoggins, where the Supreme Court applied this incident, sorry, this court applied the incident to service test in the context of a civilian bringing a claim against the Army.

[00:15:17] Speaker 04:
Are you putting that forth as that's your best case for the proposition that you're asking the court to agree with?

[00:15:28] Speaker 03:
Well, our best case is Linozzi v. Love, where this court explained that... Why isn't your best case Saucer v. Katz, where the Supreme Court recognized Bivens' action against a military police officer?

[00:15:41] Speaker 01:
I agree that that's a very strong case in our favor, your honor.

[00:15:46] Speaker 01:
However, the issue with that case is that the Supreme Court did not weigh in on the Bivens issue explicitly.

[00:15:53] Speaker 01:
It was dismissed.

[00:15:55] Speaker 03:
But if it found that the qualified immunity applied and didn't expressly say that a Bivens action wasn't permitted, can't we imply or assume that the court implicitly was commenting on the permissibility of the Bivens action in that case?

[00:16:11] Speaker 01:
I do agree with that analysis, Your Honor, and also this case has done the same thing in Morgan v. United States, where actually a very similar plaintiff to Mr. Alawendi, he was a civilian employee of the FAA, working on an Air Force base.

[00:16:29] Speaker 01:
And this court resolved the question of qualified immunity.

[00:16:34] Speaker 01:
without weighing in on the Bivens issue even though it was a Bivens claim which, yes, in my view, and this court has held explicitly that Bivens is a prerequisite, acknowledging the Bivens claim is a prerequisite to qualified immunity.

[00:16:54] Speaker 01:
So, yes, I, both Saucy Everycats and Morgan v. United States indicate that the military context alone is not sufficient

[00:17:05] Speaker 01:
It's not sufficient to foreclose the Bivens claim.

[00:17:08] Speaker 01:
There's more to it.

[00:17:10] Speaker 01:
And because our claim does not arise incident to service, it shouldn't have been dismissed.

[00:17:16] Speaker 04:
Any additional questions from council?

[00:17:18] Speaker 04:
Okay.

[00:17:18] Speaker 04:
We've used all your time, but I'll give you a minute for rebuttal.

[00:17:22] Speaker 01:
Thank you.

[00:17:22] Speaker 04:
Okay.

[00:17:32] Speaker 05:
Good morning.

[00:17:33] Speaker 05:
Good morning, Your Honors.

[00:17:35] Speaker 05:
May it please the court.

[00:17:36] Speaker 05:
My name is Valerie Smith and I represent defendants appellees on this matter.

[00:17:42] Speaker 05:
Your honors, the court should affirm the district court's decision dismissing the Second Amendment complaint, finding that Bivens has never been recognized in the military DOD context.

[00:17:52] Speaker 04:
Say the Second Amendment.

[00:17:54] Speaker 05:
second amended complaint.

[00:17:57] Speaker 04:
Hot topic though.

[00:17:58] Speaker 04:
Correct.

[00:18:00] Speaker 04:
You are correct.

[00:18:02] Speaker 05:
On the second amended complaint, Your Honors.

[00:18:07] Speaker 05:
The conduct, of the conduct that L.O.N.D.

[00:18:09] Speaker 05:
alleged in the pleadings and further, any further amendment would be futile.

[00:18:14] Speaker 05:
The military DOD

[00:18:15] Speaker 05:
throw line in L1D's claim is something that is not found in Bivens.

[00:18:20] Speaker 05:
An officer Takagaki represents a new category of defendant which raises this case in a new context.

[00:18:28] Speaker 04:
So what is the scope of the procedural of Monterey Police Department's authority and what's its function?

[00:18:34] Speaker 04:
Is it the same as a regular police department except that its officers are employed by the army and have jurisdiction on a military installation or are there other differences

[00:18:46] Speaker 04:
And does the Presidio of Monterey Police Department have jurisdiction at Ella Wendy's apartment where the alleged seizure took place?

[00:18:55] Speaker 05:
What's pled in the complaint is no information as to where LL Wendy's apartment is specifically located.

[00:19:02] Speaker 05:
But in regards to the Presidio of Monterey Police Department, they are specifically assigned to the Army garrison.

[00:19:08] Speaker 05:
And so they do have the ability to essentially enforce laws on the Army garrison, which includes the Defense Language Institute where LL Wendy was employed at the time.

[00:19:22] Speaker 03:
Let's assume that we find that LL Wendy's claim

[00:19:25] Speaker 03:
does not arise in a new context.

[00:19:27] Speaker 03:
Is that the end of the inquiry?

[00:19:29] Speaker 03:
Does Egbert require more?

[00:19:34] Speaker 03:
Perhaps I'm the only person who feels this way, but I don't think that the Supreme Court's annunciation of the test is all that clear.

[00:19:42] Speaker 03:
And so I'm trying to understand whether there is, in fact, a one-step inquiry, a two-step inquiry.

[00:19:48] Speaker 03:
What are we to do if we were to find that this does not arise in a new context?

[00:19:52] Speaker 05:
Yeah.

[00:19:53] Speaker 05:
Well, I think that the fact that Egbert has stated that recognizing a Bivens remedy in any situation is an extraordinary act that places great stress on the separation of powers.

[00:20:04] Speaker 05:
And so it is something, given the fact that there has not been a Supreme Court case recognizing a Bivens case in the military DOD context, that in and of itself is sufficient to pass the new context requirement and get us to the fact that the

[00:20:22] Speaker 05:
that the alternative remedies, the special factors analysis also specifically speaks to the military DOD context.

[00:20:28] Speaker 05:
I think Stanley speaks very well to that issue when it talks about

[00:20:34] Speaker 05:
Chapel and explaining that even Chapel Even though what was before the court in Chapel was only Supervisor supervisee and bringing claims against supervisors Stanley goes even further to say work That's what was before us, but that doesn't mean that this is the only way that we can preclude a Bivens action It actually goes further and so it extends it to the military context some clarification, please so I'm not sure if I'm understanding you correctly and

[00:21:04] Speaker 02:
Do you think that the Supreme Court in Egbert has implicitly eliminated Bivens except if it exactly mirrors the facts in Bivens, Carlson and Davis?

[00:21:18] Speaker 05:
Without saying it, they say it.

[00:21:20] Speaker 05:
Specifically in Egbert, in the summer of 2022, the Supreme Court said that even if called to decide Bivens today, the court would decline to discover any implicit cause of action in the Constitution.

[00:21:33] Speaker 05:
I think that in and of itself is a very strong statement, that the facts have to be almost completely analogous.

[00:21:41] Speaker 04:
They've even also said- Well, Bivens is on life support, but I don't think it's dead.

[00:21:47] Speaker 05:
I hear you on that one, Your Honor.

[00:21:48] Speaker 05:
But they've also gone further as to say that just because it is the same claim, the same amendment being challenged, even in almost parallel situations, it may not be enough to satisfy Vivens.

[00:22:01] Speaker 05:
And so the new context inquiry, they said in Hernandez and both Abbasi, that the new context inquiry is easily satisfied.

[00:22:10] Speaker 05:
I think that tip right there is, okay, we've got something that's different, this new context is satisfied, let's move on to the special factors analysis.

[00:22:17] Speaker 05:
Here we, not only do we have the military DOD thorough line, but we have factual differences.

[00:22:23] Speaker 05:
What are those?

[00:22:24] Speaker 05:
Yeah.

[00:22:24] Speaker 05:
Yeah.

[00:22:24] Speaker 05:
So this incident actually arose out of an employment dispute.

[00:22:28] Speaker 04:
Well, can you point me to a case finding the EEOC process to be an alternative remedial structure for a proposed Fourth Amendment claim?

[00:22:37] Speaker 05:
At this point, I have not found one, Your Honor.

[00:22:39] Speaker 05:
I don't have one readily available to the court.

[00:22:42] Speaker 05:
But I do have multiple cases finding that the Inspector General's ability to investigate and discipline be sufficient as an alternate remedy.

[00:22:50] Speaker 05:
And we have multiple venues, not just with the Inspector General's, but also with Army regulations.

[00:22:54] Speaker 04:
So I put the pressure point on the weakness of your argument right there.

[00:22:58] Speaker 04:
But then you said, but that doesn't matter because?

[00:23:00] Speaker 05:
I have multiple other alternate remedies.

[00:23:03] Speaker 05:
OK.

[00:23:06] Speaker 05:
it to specifically addressing a Fourth Amendment claim, the court has said that it doesn't have to specifically address the Fourth Amendment claim.

[00:23:15] Speaker 05:
When it comes to the special factors analysis, in Egbert, the court said that it's irrelevant that the constitutional wrong would otherwise go unredressed absent a Bivens remedy, or that existing remedies do not provide complete relief.

[00:23:28] Speaker 05:
So that in and of itself, even if there's relief to seek relief that addresses the deterrent effect, such as discipline and investigation, that should be sufficient to satisfy the special factors inquiry.

[00:23:41] Speaker 04:
Well, help me out here just from the standpoint.

[00:23:44] Speaker 04:
Since there seems to be, I think that Judge Desai mentioned, and there seems to be a little

[00:23:53] Speaker 04:
perhaps lack of clarity on whether it's a one or a two step or after that it now is a one step or whatever.

[00:24:02] Speaker 04:
But let's assume that we don't know with certainty.

[00:24:06] Speaker 04:
What is your proposed analysis in this case so that if the court were, and I'm saying this hypothetically, if the court were to affirm that in a way that it wouldn't make a difference whether it's one or two steps?

[00:24:23] Speaker 05:
Yeah, Your Honor, both in Egbert and Abbasi, Egbert, page 1805, the court says that only really one question needs to be answered, that element one and element two really merge into one question, and that's whether there's any rational reason, even one, to think that Congress is better suited to weigh the costs and benefits of allowing a damages action like the one alleged here, and whether that should be allowed to proceed.

[00:24:48] Speaker 05:
So really it's one question, and because here we do have the military context,

[00:24:53] Speaker 04:
Congress has delegated that to the executive it's in the Constitution that Congress has the authority to delegate that And Stanley does specifically speak to that analysis as well So what you're saying is the answer to that question that's that's that's the question we should answer and that's in the answer to that question and the reasoning to that why you win is that

[00:25:19] Speaker 05:
because this case does arise in the military context.

[00:25:22] Speaker 05:
It arises on the military workplace after Mr. Elowendi made a report to the Presidio police, the army garrison there.

[00:25:31] Speaker 05:
They were investigating that complaint as part of that investigation.

[00:25:35] Speaker 05:
He was ultimately terminated.

[00:25:38] Speaker 05:
And actually, plaintiff brings this up as his own relation to the workplace when he filed the EEOC complaint.

[00:25:48] Speaker 05:
In SER 47 and 48, you actually have the EEOC's analysis of the taking of the computer and then finding that not wrongful.

[00:26:00] Speaker 05:
So he himself brings this as a workplace complaint and issue.

[00:26:08] Speaker 04:
So he's not been, he doesn't have criminal charges against him.

[00:26:12] Speaker 04:
This is simply an employment case.

[00:26:15] Speaker 05:
Within the four corners of the complaint does not say anything about Criminal charges being brought against him So I am hesitant to speak beyond the four corners of this complaint since this is a motion to dismiss But I do have additional information regarding that if your honor is interested Okay, well your honors I thank you very much for your time if there's no additional questions We asked the court to not expand Bivens in this context

[00:26:43] Speaker 05:
and to affirm the district court's dismissal of this action.

[00:26:47] Speaker 05:
Thank you very much.

[00:26:48] Speaker 05:
Thank you for your argument.

[00:27:06] Speaker 04:
All right, rebuttal, one minute.

[00:27:08] Speaker 01:
Your Honor, I just wanted to make two related points.

[00:27:12] Speaker 01:
First, to address Justice Desai's first question about... Just been promoted.

[00:27:18] Speaker 04:
Sorry.

[00:27:20] Speaker 04:
Oh, yeah.

[00:27:20] Speaker 04:
There is no justice on the Ninth Circuit.

[00:27:22] Speaker 04:
That's what happened.

[00:27:24] Speaker 04:
Only after... So I was a justice on the 3rd DCA before I was demoted to a judge on the Ninth Circuit.

[00:27:31] Speaker 04:
So we always appreciate the promotion.

[00:27:36] Speaker 01:
So that the...

[00:27:37] Speaker 01:
The Bivens analysis is, you're right, it's not all that clear, but it's guided by one question, whether the claim at hand requires more judicial intrusion into an executive branch or an executive agency than Bivens did.

[00:27:54] Speaker 01:
And my second point is that here it does not.

[00:27:58] Speaker 01:
That's because as a counsel for Officer Takagaki concedes, Congress delegated the authority

[00:28:06] Speaker 01:
the authority over Bivens claims within the military context to the Army.

[00:28:12] Speaker 01:
And that's why Army regulations control.

[00:28:14] Speaker 01:
And that's why when we look at DA pamphlet 27-162 and read what it says, it's clear that Mr. Elwindi's claim should not have been dismissed because the Army did not intend to stand in the way of Bivens claims.

[00:28:28] Speaker 04:
All right.

[00:28:29] Speaker 04:
Thank you for your argument.

[00:28:31] Speaker 04:
Thank you both for your arguments.

[00:28:32] Speaker 04:
Very helpful in this matter.

[00:28:34] Speaker 04:
And this matter will stand submitted.

[00:28:36] Speaker 04:
And I think that I, you, well, you were actually the first to argue today, which is always the hardest place.

[00:28:44] Speaker 04:
But I will say that both when you graduate, you'll be, you're welcome to argue in front of the Ninth Circuit.

[00:28:51] Speaker 04:
You all did, you did a good job.

[00:28:54] Speaker 04:
And of course, I know, Ms.

[00:28:55] Speaker 04:
Smith, you've been around a long time and you did a good job.

[00:29:00] Speaker 04:
Not as long as I've been around.

[00:29:01] Speaker 04:
So I'm not saying that.

[00:29:03] Speaker 04:
Thank you.