[00:00:05] Speaker 04: Thank you, Your Honor. [00:00:05] Speaker 04: Chris Davis, appearing on behalf of Appellants, with the Nevada Attorney General's Office. [00:00:13] Speaker 04: Again, I'm not certain how much more you want me to go into the jurisdictional requirements of this. [00:00:18] Speaker 03: As promised, I have one set of questions prompted by an argument that was made by the appellee in this case. [00:00:24] Speaker 03: So the actual jurisdictional limit is not imposed by the federal rules. [00:00:30] Speaker 03: It is imposed by 28 USC 2107. [00:00:34] Speaker 03: And so my question is, [00:00:37] Speaker 03: How do you reconcile your position with the text of 2107, which says that you must appeal within 30 days after the entry of such judgment order or decree, and you're appealing an order that was entered on a particular date. [00:00:55] Speaker 03: So you see the question. [00:00:56] Speaker 03: You're more than 30 days after that. [00:00:58] Speaker 04: Again, Your Honor, I respectfully disagree. [00:01:00] Speaker 04: We're not appealing an order. [00:01:01] Speaker 04: We're appealing a judgment. [00:01:03] Speaker 04: Because the statute doesn't define what judgment is. [00:01:06] Speaker 04: The rules define what a judgment is. [00:01:07] Speaker 04: And a judgment is an order from which an appeal lies. [00:01:10] Speaker 04: For example, you could, again, do the same thing at the end of the case, right? [00:01:14] Speaker 04: If you have an order denying a motion for summary judgment, that is not a judgment, right? [00:01:19] Speaker 04: But it is an order. [00:01:20] Speaker 04: And so you could say, you have to appeal 30 days from the order. [00:01:23] Speaker 04: But we all know that that's not the case, Your Honor. [00:01:25] Speaker 04: We all know that there has to be, at the end of the case, in that particular instance, because this court has repeatedly held so, that you need a judgment. [00:01:33] Speaker 04: And time for appeal does not begin to run until that judgment is entered. [00:01:36] Speaker 03: But perhaps, I think perhaps the difference there is that when you're appealing a final judgment, what a final judgment is is a legal construct. [00:01:45] Speaker 03: And the rules can define what that is. [00:01:48] Speaker 03: And they do define what that is. [00:01:50] Speaker 03: The entry of the order is a fact that happened in the world and that is the triggering event under the statute. [00:01:59] Speaker 03: And I don't see how the rules can say that the order was entered at some time other than when it showed up on the docket. [00:02:06] Speaker 04: Well, the thing is, I think because you're confusing that this is not, like I say, under the rules, the definition is a judgment. [00:02:16] Speaker 02: What? [00:02:16] Speaker 02: Are you saying the judge is confused? [00:02:17] Speaker 04: It's certainly possible. [00:02:19] Speaker 04: I'm not saying he's confused. [00:02:20] Speaker 04: I'm saying he's confusing the two issues. [00:02:21] Speaker 04: Sorry, Your Honor. [00:02:22] Speaker 04: But if you can explain why. [00:02:25] Speaker 04: Because the rules define what a judgment is. [00:02:28] Speaker 04: And the thing is that we all have the layman's [00:02:31] Speaker 04: thing of what a judgment is in our heads, right, Your Honor? [00:02:33] Speaker 04: But that's not what the layman believes the judgment to be. [00:02:36] Speaker 04: It's not what the rule says the judgment is to be. [00:02:38] Speaker 02: But we're not laymen. [00:02:39] Speaker 04: That's right, Your Honor, and I agree. [00:02:40] Speaker 04: And that's why I'm here arguing this before you. [00:02:42] Speaker 04: And fully expect that the Honors are going to come to an appropriate decision in this matter. [00:02:49] Speaker 04: The rules say what a judgment is, and the judgment is an order from which an appeal lies. [00:02:58] Speaker 04: And that's why this is a judgment and not an order. [00:03:00] Speaker 02: Doesn't an order have to be final, with certain exceptions for interlocutory orders? [00:03:06] Speaker 02: Doesn't the order have to be final in order for it to be final? [00:03:10] Speaker 04: And that's what the Supreme Court says because it involves qualified immunity that it is a final. [00:03:16] Speaker 04: This is a final decision on this issue. [00:03:18] Speaker 02: Is it a final order? [00:03:19] Speaker 02: What case says that a denial of qualified immunity in an order is a final order? [00:03:26] Speaker 02: What case says that? [00:03:27] Speaker 02: The cases say you're allowed to appeal it in the laboratory, but they don't say it's a final order. [00:03:35] Speaker 04: Yes, they do, Your Honor. [00:03:36] Speaker 02: Which case says that? [00:03:38] Speaker 04: It is. [00:03:39] Speaker 04: Excuse me. [00:03:42] Speaker 03: And while you're looking at it. [00:03:43] Speaker 04: I'm sorry, I happened to have that case in front of me in this particular oral argument. [00:03:47] Speaker 04: Hold on. [00:03:48] Speaker 02: Let me ask you a question. [00:03:51] Speaker 02: Are you saying this is a Supreme Court decision that says an order denying qualified immunity is a final order? [00:03:59] Speaker 04: Yes, I do. [00:04:00] Speaker 04: OK, this is a Supreme Court case. [00:04:02] Speaker 04: The Supreme Court case. [00:04:03] Speaker 04: And I believe it's the Barron case. [00:04:04] Speaker 04: It's either the Barron case. [00:04:05] Speaker 04: It's the two Supreme Court cases that I've been relying on in this issue at all. [00:04:10] Speaker 04: It's Plumoff and Barron. [00:04:11] Speaker 04: Plumoff and Barron. [00:04:14] Speaker 03: But Mitchell against Forsythes, which is what [00:04:18] Speaker 03: created the whole, which is what initially recognized that qualified immunity denials are appealable. [00:04:27] Speaker 03: I think he used the phrase notwithstanding the absence of a final judgment, didn't it? [00:04:32] Speaker 04: They do, Your Honor, but the thing is then what happened was, is at least from my understanding, you know, and this is my understanding of how the history went, they then came to the place that says that [00:04:45] Speaker 04: the case that came up with the sufficiency of the evidence. [00:04:48] Speaker 04: And that was very confusing. [00:04:50] Speaker 04: And I think it's still confusing to this court based on, if you'll read the opinions from this court on different decisions. [00:04:56] Speaker 04: I think the person who got it most correctly right was Judge Bybee in the Carly case. [00:05:02] Speaker 04: because he says that, you know, it is a final decision and this is an issue of law. [00:05:08] Speaker 04: Well, he doesn't say it's a final decision, sorry, but he says this is determining whether or not you have qualified immunity is a matter of law and you just do the proper analysis. [00:05:19] Speaker 03: Right, but I guess I'm not sure how that helps with sort of the original question, which is, [00:05:24] Speaker 03: that this is an order. [00:05:25] Speaker 03: I mean, it's called the collateral order doctrine, not the collateral judgment doctrine. [00:05:33] Speaker 03: So what is your explanation for why it's not an appeal of an order? [00:05:40] Speaker 04: Well, Your Honor, the same thing. [00:05:41] Speaker 04: You could say the same thing with the end. [00:05:43] Speaker 04: They don't call an order denying a motion for summary judgment a judgment. [00:05:47] Speaker 04: They call it an order. [00:05:48] Speaker 04: But the only reason it's called a judgment is because we then look at it and see, well, did this order, this motion for summary judgment, did it end up just resolving the dispute between all parties and all issues? [00:05:58] Speaker 02: Well, the case you cited, Plumov, at page 771, 572 U.S. [00:06:03] Speaker 02: 771, makes the very distinction [00:06:09] Speaker 02: An order denying a motion for summary judgment is generally not a final decision within the meaning of 1291 and is thus generally not immediately appealable. [00:06:19] Speaker 02: But that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity. [00:06:24] Speaker 02: As a result, pretrial orders denying qualified immunity generally fall within the collateral order doctrine. [00:06:31] Speaker 02: Doesn't say it's a final decision, it says it falls within the collateral [00:06:36] Speaker 02: order doctrine. [00:06:38] Speaker 04: I'll make sure I have the exact case for your honor when I come up with that. [00:06:41] Speaker 02: That's what you told me. [00:06:42] Speaker 02: You told me Plumop. [00:06:43] Speaker 02: Plumop and Barron. [00:06:44] Speaker 04: I cited two cases. [00:06:47] Speaker 02: Let's look at Barron then. [00:06:48] Speaker 02: Go ahead. [00:06:49] Speaker 02: I'll look at that one. [00:06:50] Speaker 04: Is that all the questions with respect to timeliness? [00:06:55] Speaker 04: Are there any others? [00:07:00] Speaker 03: That's all for me for now. [00:07:02] Speaker ?: Okay. [00:07:04] Speaker 04: I want to talk to one of the arguments that I raised, okay? [00:07:07] Speaker 04: They talk about that, well, they talk about this. [00:07:13] Speaker 04: You know, they talk about that this is kind of superfluous language. [00:07:16] Speaker 04: And what they're doing is actually creating ambiguity where no ambiguity exists. [00:07:21] Speaker 04: The rule 58 toward definition of judgment does not create an ambiguity. [00:07:25] Speaker 00: It does not bring a superfluous. [00:07:26] Speaker 00: I think the argument is that, counsel, I think the argument is that [00:07:29] Speaker 00: The superfluous language that's created by adopting the interpretation you're advancing is the word order in rule four. [00:07:38] Speaker 00: So to accept your argument, which I understand why you're making it, it's a self-serving argument, which is we are appealing a judgment. [00:07:48] Speaker 00: Judgment is defined in this way. [00:07:50] Speaker 00: But rule four very clearly includes language judgment or [00:07:54] Speaker 00: order, and to adopt your interpretation would require us to excise out the word order from the very rule that dictates the timeline to file an appeal. [00:08:05] Speaker 04: No, Your Honor, it would not, because Rule 58 expressly delineates which orders which do not require a separate document. [00:08:13] Speaker 04: It goes through, I think, six different categories of orders that aren't, which I have said, for example, Rule 60 order is not one of the orders of a final judgment. [00:08:23] Speaker 00: And I want to note in this case because this is the case that I think really highlights the practical considerations that support the committee's notes the most. [00:08:37] Speaker 00: And I think Council [00:08:40] Speaker 00: the defendant make this argument in their opening brief starting at page 21 where they talk about judicial efficiency and the real disruption to the administration of justice when we have this kind of delay. [00:08:52] Speaker 00: In this case, [00:08:55] Speaker 00: which there were 150 days that passed between the time that the order was entered on the docket and an appeal was filed. [00:09:03] Speaker 00: The defendant filed two motions to set a trial date and also was admonished by the district court, I think your office as well, for not filing a joint proposed pretrial order which would have allowed the court to then set a trial date. [00:09:17] Speaker 00: And one of the things that the defendant complained about was his inability to communicate with or get any sort of response from your office on filing a pretrial order, which would have allowed him to then set a trial date, which he otherwise would have been able to do had this case been appealed in a timely way. [00:09:35] Speaker 04: I wish I had the answer, Your Honor, about what happened before the case, because it's before my time at the Attorney General's office, and I'm not familiar with those specific facts in order to provide you with a decision, an answer that would make that clear. [00:09:51] Speaker 04: But the thing is, is the Ucurt case and the DC Circuit case. [00:09:54] Speaker 00: You keep citing the Ucurt case, but the Fifth Circuit did not enter it, you know, this is really mostly irrelevant because the Fifth Circuit case is not binding on this court, but it did not decide what it decided without reservation. [00:10:08] Speaker 00: There is quite a bit of discussion in that case about the problematic nature of adopting the interpretation that you're urging today. [00:10:18] Speaker 04: I don't think they had reservations about it. [00:10:21] Speaker 04: That's not my interpretation of the case that they had reservations. [00:10:23] Speaker 04: They understood the reservations that the parties, that the party opposing this had. [00:10:28] Speaker 04: But the thing is, is what they came to the conclusion was, and like I said, I don't interpret it the same way as the Eucard case. [00:10:34] Speaker 04: I don't think the invasion committee notes was trying to say, hey, [00:10:38] Speaker 04: We're going to just ignore the Supreme Court that says this has to be mechanically applied. [00:10:41] Speaker 04: I have a different interpretation. [00:10:43] Speaker 04: I presented that to your honor. [00:10:45] Speaker 04: But they said, irrespective of the notes, that the notes do not trump the Supreme Court that says that this has to be mechanically applied. [00:10:52] Speaker 02: And they relied... It has to be mechanically applied once it's determined what... [00:10:57] Speaker 02: is included in there. [00:10:59] Speaker 02: That doesn't help you, in my view, to say it must be mechanically applied because we have to first determine what the rule is before we mechanically apply it. [00:11:11] Speaker 02: To me, that argument is not. [00:11:13] Speaker 04: But I think the mechanically applied terms from that you have to follow it by the plain language. [00:11:17] Speaker 04: When I think what they're referring to by the mechanically applied is you're not supposed to take into these other considerations, for example, which Judge Josiah is talking about. [00:11:25] Speaker 04: You're not supposed to say, hey, you know, in this instance, it would be unfair to do this. [00:11:30] Speaker 04: So we're not going to do it. [00:11:31] Speaker 02: I understand it's unfair. [00:11:32] Speaker 02: We're trying to reconcile the contents of the rule [00:11:37] Speaker 02: the cases that have interpreted the rule and the statute. [00:11:40] Speaker 02: So we're not doing this in a vacuum. [00:11:43] Speaker 02: We have to look at the whole statutory scheme when we're deciding this, and we can't just isolate one phrase and go with that. [00:11:52] Speaker 04: Well, I'm not asking you to. [00:11:53] Speaker 04: In fact, I'm asking you to take the rules as a whole, but also not ignore any phrases. [00:11:59] Speaker 04: You can't also ignore any phrases that are in the rule. [00:12:02] Speaker 02: But we have to look at the established [00:12:05] Speaker 02: interpretation of those phrases, because the fact that there is no case in the Ninth Circuit that supports your view. [00:12:16] Speaker 04: And that's what I was talking about with respect to the Corrigan case. [00:12:21] Speaker 04: They were making kind of the same kind of argument. [00:12:25] Speaker 04: It happened to be a habeas case. [00:12:28] Speaker 04: And they were saying, well, here, we have this order. [00:12:33] Speaker 04: There's no separate judgment. [00:12:35] Speaker 04: But in this habeas case, and they were saying, hey, he has 30 days to appeal it, and he didn't do it. [00:12:39] Speaker 04: But there was no judgment entered. [00:12:41] Speaker 04: And because there was no judgment entered, they said, we have to follow the Supreme Court. [00:12:46] Speaker 02: We understand. [00:12:47] Speaker 02: We've heard the argument. [00:12:48] Speaker 02: OK. [00:12:49] Speaker 02: All right, we'll give you a minute for rebuttal. [00:12:50] Speaker 04: OK. [00:12:51] Speaker 04: I'm going to reserve my time. [00:12:52] Speaker 04: The rest? [00:12:54] Speaker 02: You don't have any time. [00:12:55] Speaker 04: Oh, sorry. [00:12:57] Speaker 02: You exceeded your time. [00:12:58] Speaker 02: Thank you, Your Honor. [00:12:58] Speaker 02: We'll give you a minute for rebuttal. [00:13:08] Speaker 01: Good morning, counsel. [00:13:10] Speaker 01: Good morning. [00:13:10] Speaker 01: May it please the court, Becca Steinberg for Appellee Michael McNeil. [00:13:14] Speaker 02: This court... And we thank you for accepting this case pro bono. [00:13:18] Speaker 01: Thank you, Your Honor. [00:13:18] Speaker 01: This court lacks jurisdiction to hear this case, and defendant's argument to the contrary is irreconcilable with the text of 28 USC, section 2107. [00:13:31] Speaker 01: Under 2107, the court cannot hear any appeal unless a notice of appeal is filed within 30 days after entry of the judgment, order, or decree being appealed. [00:13:44] Speaker 01: Here, defendants are appealing a collateral order denying qualified immunity. [00:13:49] Speaker 01: But instead of appealing within 30 days of that order, they waited 150 days to file their notice of appeal. [00:13:57] Speaker 01: Nothing in the statute, rules, or this court's precedent gives them the ability to flout that jurisdictional deadline. [00:14:07] Speaker 01: The case is therefore time barred, and the court should dismiss this appeal. [00:14:11] Speaker 03: So on your reading of 2107, what do we do with FRAP 4A7, which uses the language of orders as a judgment, or order is entered, and then [00:14:24] Speaker 03: If Civil Rule 58 requires a separate document, when the separate document is entered or 150 days runs out. [00:14:31] Speaker 03: So how do you reconcile that with statute? [00:14:36] Speaker 01: So first is under the Rules Enabling Act. [00:14:39] Speaker 01: This is 28 U.S.C. [00:14:41] Speaker 01: Section 2071. [00:14:42] Speaker 01: The rules cannot be inconsistent with the statute. [00:14:49] Speaker 01: So to the extent that there is conflict between those two, it is the statute, not the rules that control. [00:14:56] Speaker 01: further, right, based on the arguments that we've raised in our brief, we think that would create tension in the rules, as well as the fact that it is the Ninth Circuit consistent practice to dismiss cases that are filed more than 30 days after the entry of a collateral order. [00:15:17] Speaker 01: And Judge Miller, as you pointed out earlier this morning, it appears to be a pretty universal practice to dismiss cases that are appealing a preliminary injunction more than 30 days after the entry of that preliminary injunctive order. [00:15:31] Speaker 01: So, you know, we think that to the extent that 4A has any inconsistency with the rule, it ought not to be construed, or any inconsistency with the statute, it ought not to be construed in that way. [00:15:45] Speaker 03: And do you think could we say that without also saying that 4A7 is contrary to the statute to the extent that it gives 150 days for final judgments? [00:16:01] Speaker 01: to the extent that yes, because as Judge Miller, you pointed out earlier, there's a difference between an order being entered and a judgment being entered. [00:16:10] Speaker 01: So when an order is being entered, that's just something that happens. [00:16:14] Speaker 01: It has a plain meaning for the statute. [00:16:17] Speaker 01: But the entry of a judgment doesn't always have a plain meaning for the statute. [00:16:21] Speaker 01: And that's the work that the rules are doing. [00:16:23] Speaker 01: The rules are clarifying what it means to enter a judgment in cases where it's not otherwise so clear based on the statute. [00:16:31] Speaker 01: And I'd like to, Judge Miller, you just raised the 150-day issue that was raised as a practical argument for the first time in reply, so I'd like to address that. [00:16:40] Speaker 01: I would point this Court to the 2002 Advisory Committee notes that deal specifically with FRAP 4, so this is different than the Advisory Committee notes that are cited in the briefing. [00:16:51] Speaker 01: 150 days serves a signaling function that the district court, quote, has entered its last order and, quote, is done with their case. [00:17:01] Speaker 01: You don't get that same 150-day signaling function, whereas here the district court isn't done with this case because it's continuing to move towards trial. [00:17:11] Speaker 01: And the practical impacts that we talked about in Judge Desai that you asked about earlier are exactly what we see here where my client, who is pro se below, [00:17:20] Speaker 01: didn't have the, you know, was trying to move towards trial, was met with delay and delay and delay until on day 150, you know, a notice of appeal was filed. [00:17:33] Speaker 01: But frankly, none of that matters because the statute itself is jurisdictional and 2107A has a plain meaning as it applies to the entry of an order. [00:17:47] Speaker 01: I'm happy to answer any further questions that the court has on the timeliness issue. [00:17:53] Speaker 01: I know you've had a lot of opportunity to talk about it earlier. [00:17:57] Speaker 01: So if not, I... It appears not. [00:18:01] Speaker 01: Okay. [00:18:01] Speaker 01: And similarly, if the court has any questions on the merits, I'm happy to address those. [00:18:06] Speaker 01: Otherwise, with respect to the merits, we'll rest on our brief. [00:18:09] Speaker 02: It appears not. [00:18:09] Speaker 02: Thank you, counsel, and thank you once again for your pro bono service. [00:18:13] Speaker 01: Thank you. [00:18:14] Speaker 02: Rebuttal. [00:18:15] Speaker 02: Let's have one minute. [00:18:23] Speaker 04: Thank you, Your Honor. [00:18:24] Speaker 04: And I want to get to this, the rule four, the statutory question first. [00:18:27] Speaker 04: Because if you look at, I mean the statutory question, because if you look at rule four and the statute, they're almost identical. [00:18:34] Speaker 04: They talk about the same thing, judgment, order. [00:18:37] Speaker 04: in the same order that the statute does. [00:18:40] Speaker 04: And if you take counsel's argument, then Rule 4 has decided to follow the language of the statute and yet decided to define judgment contrary to what supposedly the statute does. [00:18:53] Speaker 04: But the problem with that argument is, Your Honor, the statute doesn't define what judgment is. [00:18:57] Speaker 04: It is the rules that define what judgment is. [00:18:59] Speaker 04: And because it's an order from which an appeal lies, that is a judgment. [00:19:03] Speaker 04: And it has to be mechanically applied. [00:19:07] Speaker 04: with respect to. [00:19:12] Speaker 04: I would just like to refer the court to my briefs with respect to the arguments of qualified immunity because we assert that defendants are entitled to qualified immunity because there's no clearly violation. [00:19:22] Speaker 04: None of these defendants had any involvement in the disciplinary hearing. [00:19:26] Speaker 04: And therefore, because lack of personal participation in the disciplinary hearing, they couldn't deprive anything anybody because the 14th Amendment is only violated if you deprive somebody of life, liberty, or property. [00:19:36] Speaker 04: None of these defendants deprived Mr. McNeil of anything. [00:19:39] Speaker 04: Thank you, Your Honor. [00:19:40] Speaker 02: Thank you. [00:19:42] Speaker 02: It's just argued and submitted for decision by the court. [00:19:45] Speaker 02: We thank both counsel.