[00:00:08] Speaker 04:
Good afternoon, Your Honors.

[00:00:10] Speaker 04:
It's a pleasure to be here and appreciate the opportunity to present my arguments.

[00:00:16] Speaker 04:
The district court erred when denying Dr. ... Oh, I'm ... Yes, Your Honor.

[00:00:21] Speaker 04:
My name is Chris Davis and I'm here for the appellants representing the ... with the Office of the Attorney General.

[00:00:30] Speaker 04:
The district court erred when denying Dr. Notton's motion for summary judgment because he is entitled to qualified immunity as he did not violate clear to established constitutional right beyond debate.

[00:00:40] Speaker 04:
Dr. Notton did not violate the 8th Amendment by removing a non-cancerous fatty growth referred to as a lymphoma without anesthetic or medical support staff because that decision is a classic example

[00:00:54] Speaker 00:
I was hoping that you could address the issue about whether or not

[00:01:08] Speaker 00:
black jurisdiction because of the timeliness of your appeal, given that it was filed beyond the 30 days that Rule 4 requires?

[00:01:18] Speaker 04:
Well, of course, Your Honor.

[00:01:22] Speaker 04:
This Court has jurisdiction because Robinson concedes that this appeal is timely.

[00:01:26] Speaker 03:
Where does he concede that?

[00:01:28] Speaker 04:
Well, he concedes that it's the plain language of the rule.

[00:01:30] Speaker 04:
That's what I was getting at that the last sentence.

[00:01:31] Speaker 03:
He doesn't concede that the appeal is timely.

[00:01:33] Speaker 04:
Well, he concedes, though, under the plain language of the rule, it's timely.

[00:01:36] Speaker 03:
He concedes the language of the rule, but does not concede that this appeal is timely.

[00:01:42] Speaker 03:
That's why we're discussing this, because he does not concede that.

[00:01:45] Speaker 03:
So the fact that a person concedes the language of the rule doesn't mean they're conceding the argument.

[00:01:51] Speaker 04:
No, I didn't say that they were conceding the argument.

[00:01:53] Speaker 04:
I just said under the plain language, he concedes.

[00:01:56] Speaker 04:
Anyway, thank you, Your Honor.

[00:01:58] Speaker 04:
Under the plain language of Rule 4, 54, and 58, the order denying a motion for summary judgment asserting qualified immunity is a judgment.

[00:02:06] Speaker 03:
And the time... What?

[00:02:07] Speaker 03:
Is there a case that says... There are two cases that say that.

[00:02:12] Speaker 03:
Council, let me finish.

[00:02:14] Speaker 03:
What's your strongest case for the proposition that an order denying summary judgment resulting in an interlocutory appeal is a final order?

[00:02:23] Speaker 04:
Okay, there are two cases that say that.

[00:02:24] Speaker 04:
There's the Uckart case in the Fifth Circuit.

[00:02:26] Speaker 04:
Well, is there a Ninth Circuit case that says that?

[00:02:29] Speaker 04:
Your Honor, there is not a Ninth Circuit case, and I think that's the reason why we're here today and why we're arguing this in four cases.

[00:02:34] Speaker 00:
Are you aware of the fact that our court has, in fact, in several cases, dismissed appeals for

[00:02:41] Speaker 00:
lack of being timely under Rule 4 when the Notice of Appeals filed beyond the 30 days required by Rule 4.

[00:02:47] Speaker 04:
But think, Your Honor, in those cases— Are you aware of those cases?

[00:02:51] Speaker 04:
Yes, Your Honor, I am.

[00:02:51] Speaker 04:
But I'm also aware that this issue was never raised in any of those cases.

[00:02:57] Speaker 04:
And therefore, if the issue is not raised, this Court didn't have an opportunity to consider the argument.

[00:03:01] Speaker 00:
I mean— But those cases, in those cases, our Court dismissed the appeals untimely.

[00:03:07] Speaker 04:
That's what they, Your Honor, that's right, they did, okay?

[00:03:10] Speaker 04:
But the thing is, is you can, you can, a person can do the opposite and say, and fail to argue that this court has jurisdiction, and therefore the court's not going to address that issue.

[00:03:21] Speaker 04:
But here we're doing that.

[00:03:23] Speaker 04:
We are arguing here, and therefore this time the court has to consider the issue.

[00:03:27] Speaker 04:
The court didn't have to consider the issue in those cases, but in this case it does, because we made the argument.

[00:03:32] Speaker 02:
Is there any difference in your view in how the rules apply to

[00:03:36] Speaker 02:
I'm just wondering if there's a appealable order that denies qualified

[00:03:45] Speaker 04:
say uh... your honor whether it's uh... i you know i i didn't look into that i thought about that but i didn't look into that seriously but you know under my my my my my gut reaction is is that there wouldn't be a difference would or would not?

[00:03:59] Speaker 04:
would not be a difference okay so so then i i mean because let me explain why if you want if it's okay oh i'm sorry did i interrupt you?

[00:04:06] Speaker 04:
no no go ahead okay because the rule says okay the rule defines judgment as any

[00:04:12] Speaker 04:
as any order from which an appeal lies.

[00:04:14] Speaker 04:
And since an appeal lies from a denial of a motion for preliminary adjunction, then that would be a judgment.

[00:04:20] Speaker 04:
And because it's a judgment, it requires a separate document.

[00:04:23] Speaker 04:
And without a separate document, judgment is not entered until a separate document is entered or until 150 days is allowed from the time the order is entered.

[00:04:35] Speaker 02:
Right.

[00:04:36] Speaker 02:
that is the logic of your position.

[00:04:38] Speaker 02:
And so then I guess the next question is, you know, I've looked and there are lots of cases from this circuit and other circuits dismissing PI appeals that were filed more than 30 days after the order was entered.

[00:04:54] Speaker 02:
Are you aware of any case in which a court has accepted your position in the PI context?

[00:05:00] Speaker 04:
I am not, Your Honor.

[00:05:03] Speaker 04:
But the thing is, again, I would say, Your Honor, that it's because the issue hasn't been raised.

[00:05:09] Speaker 04:
And because we are raising the issue here, this Court now has to confront that issue.

[00:05:14] Speaker 04:
And because also the plain language involves... But I guess maybe...

[00:05:18] Speaker 02:
that's what we're trying to do.

[00:05:20] Speaker 02:
So.

[00:05:20] Speaker 02:
One thing that one might conclude from the our our circuits uniform practice in a qualified immunity appeals that judge decide mentioned and apparently every circuits

[00:05:34] Speaker 02:
The fact that no one has ever thought of this might counsel some skepticism as to whether it is in fact correct.

[00:05:40] Speaker 04:
It's not that no one has ever thought of it because we have two circuits that have ruled the way, ruled in my favor in both instances.

[00:05:47] Speaker 00:
Is this a new policy?

[00:05:49] Speaker 00:
Excuse me, counsel.

[00:05:49] Speaker 00:
Is this a new policy that your office has adopted?

[00:05:52] Speaker 00:
Because this doesn't seem to have really been an issue prior to, and we have several cases on the docket this morning, as I think you're aware since you're arguing all of them, that this is a consistent issue that's now occurring.

[00:06:05] Speaker 04:
Well, I think the thing that changed was that I came on board to the Attorney General's office and began handling the appeals.

[00:06:15] Speaker 04:
And I was reviewing cases that I thought should be appealed.

[00:06:18] Speaker 04:
And when reviewing these appeals, I thought these were cases that should have been appealed but weren't.

[00:06:24] Speaker 04:
And I was aware, because of my

[00:06:29] Speaker 04:
my considerable public practice that the separate document rule of the separate document rule.

[00:06:34] Speaker 00:
Okay, so let me ask you this just as a policy and sort of practical matter.

[00:06:40] Speaker 00:
I understand why the separate document rule exists for final judgments, but why do you need a separate document for collateral orders?

[00:06:49] Speaker 00:
What is unclear about the district court's denial of qualified immunity in this case that would somehow

[00:06:56] Speaker 00:
way in favor of requiring, in this case, you know, more than 30 days, in some of the cases we're hearing this morning, 150 days.

[00:07:03] Speaker 04:
Because I can tell you, from my practice here in the, well, since I've come to the Attorney General's office, when the District Court makes rulings, it's not absolutely clear that that's their final ruling on the issue.

[00:07:13] Speaker 00:
Are you telling me that it's unclear to you that the District Court has denied?

[00:07:17] Speaker 04:
In some instances, it is unclear.

[00:07:19] Speaker 00:
Could you later finish your question, please?

[00:07:21] Speaker 04:
Thank you.

[00:07:21] Speaker ?:
Oh, sorry.

[00:07:22] Speaker 00:
It is hard for me to imagine that the district court's ruling is somehow unclear such that a separate document is required.

[00:07:31] Speaker 04:
Well, you know, you could also say the thing with the end of trial.

[00:07:33] Speaker 04:
You know, you have a jury verdict.

[00:07:35] Speaker 04:
It's decided in all cases.

[00:07:36] Speaker 04:
It's clear, right?

[00:07:37] Speaker 04:
But we still have the same document required, because the Supreme Court has said that this rule needs to be mechanically applied.

[00:07:44] Speaker 04:
You're not supposed to take into this consideration about whether or not— Your counsel, it's in a locatory appeal.

[00:07:50] Speaker 03:
So that, in and of itself, suggests that it's not final.

[00:07:55] Speaker 04:
No, it doesn't.

[00:07:56] Speaker 04:
Your Honor, I respectfully disagree that that's not the case, because if they did, for example, I would refer to you to the advisory committee notes, right?

[00:08:04] Speaker 04:
They flagged this issue.

[00:08:06] Speaker 00:
They said that, hey, you know... And the advisory committee notes actually say that it shouldn't be applied, that the separate document rule should not be applied to

[00:08:16] Speaker 04:
That's not what they say, Your Honor.

[00:08:17] Speaker 04:
And I would respectfully disagree with that conclusion.

[00:08:20] Speaker 04:
The notes declare that, in fact, the notes actually declare the separate document requirement continues to apply to interlocutor order.

[00:08:28] Speaker 03:
Continues to apply?

[00:08:29] Speaker 04:
Yeah.

[00:08:29] Speaker 04:
So it says that.

[00:08:30] Speaker 04:
Yeah, the separate document requirement continues to apply.

[00:08:34] Speaker 04:
Oh, continues to apply to what?

[00:08:35] Speaker 04:
Orders that appeal to interlocutor order that is appealable as a final decision.

[00:08:40] Speaker 04:
That's what they say.

[00:08:41] Speaker 03:
As a final decision.

[00:08:42] Speaker 03:
Right.

[00:08:42] Speaker 03:
That's the point.

[00:08:44] Speaker 04:
No, it's interlocutor.

[00:08:45] Speaker 04:
Sorry, Your Honor.

[00:08:45] Speaker 03:
If it's a final decision, the problem with that argument is it's not a final decision because the denial of qualified immunity just means you go to trial.

[00:08:57] Speaker 03:
So it's not a final decision.

[00:08:59] Speaker 04:
It is a final decision.

[00:09:01] Speaker 04:
The Supreme Court of Brandon and Perrin both say it is a final decision.

[00:09:05] Speaker 03:
It's final enough to allow an appeal.

[00:09:07] Speaker 03:
But if it were a final decision, there would be no more litigation after it.

[00:09:12] Speaker 04:
And then the advisory committee notes continue and say, hey, we would have to have drastic surgery to the rule in order to do this, right?

[00:09:21] Speaker 04:
And then they say, but, you know, pragmatically, we're not going to do the surgery right now.

[00:09:25] Speaker 04:
And so the order continues to play.

[00:09:27] Speaker 04:
It's just their opinion that it should be a different way.

[00:09:28] Speaker 00:
So I'm going to quote for you the language from the advisory committee notes, which I am sure you have read.

[00:09:34] Speaker 00:
I have no doubt that you have looked at this closely, but the committee notes state, and I quote, appeal time should start to run when the collateral order is entered without regard to creation of a separate document and without awaiting expiration of the 150 days.

[00:09:50] Speaker 04:
That's what they say it should do.

[00:09:52] Speaker 04:
That's what they say the rules should do.

[00:09:54] Speaker 04:
But that's not what they say the rules do do.

[00:09:56] Speaker 04:
What they say they should do.

[00:09:58] Speaker 04:
And then it goes on to say that in order to reap that result, we had drastic surgery to the rule, which they did not want to do that.

[00:10:04] Speaker 04:
So they said, for the moment, we're going to pragmatically disregard amending the rule.

[00:10:10] Speaker 04:
And so that's what they made a decision.

[00:10:12] Speaker 04:
They made a decision not to do this.

[00:10:14] Speaker 04:
I kind of disagree with the advisory committee notes on that issue, because there is, for example, in rule, I think it's rule 56, that talks about

[00:10:25] Speaker 04:
It talks about this issue about that there are, in the notes it says, they exempt certain orders.

[00:10:32] Speaker 04:
For example, Rule 6 AB order, it's exempt.

[00:10:35] Speaker 04:
It doesn't have to have a separate document.

[00:10:37] Speaker 04:
They could have just put in another provision in there and said, hey, guess what?

[00:10:41] Speaker 04:
Interlocutory appeals with respect to qualified immunity do not apply.

[00:10:46] Speaker 04:
They could have put in a note.

[00:10:47] Speaker 04:
Interlocutory appeals with respect to preliminary injunction does not apply.

[00:10:51] Speaker 04:
They didn't do that, Your Honor.

[00:10:52] Speaker 03:
You can see that your time will give you a minute for rebuttal.

[00:11:04] Speaker 03:
Thanks.

[00:11:21] Speaker 01:
Good morning, Judges Rollinson, Miller, and DeSai, Jesse Hogan of Snell and Wilmer, for Mr. Robinson, the appellee.

[00:11:28] Speaker 01:
May it please the court.

[00:11:29] Speaker 01:
Unless the court prefers otherwise, I'll start with the timeliness issues, since it seems like that's an interest.

[00:11:35] Speaker 03:
Do you concede that under the plain language of the rule that the state argument is correct?

[00:11:44] Speaker 01:
no.

[00:11:46] Speaker 01:
So our argument is that Dr. Norton's notice of appeal is untimely because when properly considered rule 58 here requiring a separate document does not apply.

[00:11:58] Speaker 01:
And that's for

[00:12:00] Speaker 01:
three reasons.

[00:12:01] Speaker 01:
First, Rule 58, when you consider in proper context, and it's black letter law of this court that you consider rules in their context.

[00:12:10] Speaker 01:
You don't isolate words or phrases.

[00:12:13] Speaker 01:
You also don't isolate rules.

[00:12:15] Speaker 01:
You consider them as they work together.

[00:12:17] Speaker 01:
And here, Rule 58 applies only to judgments.

[00:12:22] Speaker 01:
You then have to go to Rule 54, which defines judgments as any order from which an appeal lies.

[00:12:28] Speaker 01:
But that definition needs to be considered in context, too.

[00:12:32] Speaker 01:
As an initial point, that definition hasn't changed since 1938, which is well before the collateral order doctrine was even established by the Supreme Court in 1949.

[00:12:42] Speaker 01:
And it's even well before when

[00:12:44] Speaker 01:
qualified immunity orders were held by the Supreme Court to fall into that doctrine.

[00:12:50] Speaker 01:
So the original definition couldn't have encompassed a collateral order such as the one here.

[00:12:57] Speaker 02:
The second point is... I guess I don't understand that point.

[00:13:00] Speaker 02:
I mean, the original definition wouldn't have covered the judgment in Title VII cases, because Title VII hadn't been enacted then, but those judgments are still a judgment, and a qualified immunity order is still an order from which an appeal lies, so... Sure.

[00:13:14] Speaker 01:
Sure, Your Honor, that's a good point.

[00:13:15] Speaker 01:
That's why the second point is, at worst, Rule 54A, which defines judgments, is ambiguous because if you look at that rule and then you also look, for example, at Rule 4, which says judgments or orders, there would just be no need to say or orders if every appealable order is a judgment.

[00:13:35] Speaker 02:
Well, but I think the answer to that maybe is that 54 says judgment as used in these rules, which is the civil rules.

[00:13:45] Speaker 02:
The language you're referring to is in FRAP 4.

[00:13:49] Speaker 02:
So that doesn't incorporate 54's definition.

[00:13:53] Speaker 02:
And so that's why it needed to say order or order there so that there's no superfluity.

[00:14:00] Speaker 02:
So what's the answer to that?

[00:14:01] Speaker 01:
Sure, I think, I mean, while there may not be direct contradiction because you're right that it's two separate rules, there's at least some tension between the rules, one set labeling judgment orders and decrees, and then when you have rule 58 saying just judgments or

[00:14:20] Speaker 01:
that we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do is we're going to have to do

[00:14:50] Speaker 03:
What about the language that opposing counsel talked about that that's how it should work but that's not in fact how it does work?

[00:14:59] Speaker 03:
How do you reconcile those statements?

[00:15:02] Speaker 01:
Yeah, I mean I disagree that the notes say that that is not how it does work.

[00:15:06] Speaker 03:
What's the reason for the language after the part you quoted?

[00:15:11] Speaker 01:
Because the committee notes are talking about several different types of tension in the rules.

[00:15:18] Speaker 01:
They're talking about interlocutory orders.

[00:15:20] Speaker 01:
They're talking about, you know, it's possible in theory that this rule could be read to apply to collateral orders.

[00:15:28] Speaker 01:
But again,

[00:15:29] Speaker 01:
I mean, hypertextuality isn't always the right answer.

[00:15:32] Speaker 01:
You're supposed to read the rules in context, and they're supposed to work together.

[00:15:36] Speaker 01:
So I think the committee notes language that, you know, the collateral order, for collateral orders, the appeal time should start to run from when it is entered without regard to a separate document is an instruction.

[00:15:49] Speaker 03:
That's the most important thought, and then everything after that is kind of an afterthought.

[00:15:54] Speaker 03:
Is that your argument?

[00:15:56] Speaker 01:
No, I just think that that's the most direct thought and like instruction of the committee versus the other thoughts are talking about, you know, in theory this might be read this way or things of that like.

[00:16:09] Speaker 01:
And I just wanted to note the 10th Circuit has concluded or at least endorsed the position that we're arguing today that the committee notes make clear that Rule 58 does not apply.

[00:16:20] Speaker 00:
What case is that?

[00:16:21] Speaker 01:
It's Barry V. Asarco, Inc.

[00:16:25] Speaker 02:
What are we to make of the committee's statement in the last sentence that it's better to leave this conundrum to the pragmatic disregard that seems its present fate?

[00:16:36] Speaker 02:
Do you think it's appropriate for the committee to invite us or for us to accept the invitation to disregard portions of the rules in the interests of pragmatism?

[00:16:52] Speaker 01:
I don't know exactly what it takes for the committee to do this drastic surgery that it mentioned it would take to make the rules crystal clear.

[00:17:03] Speaker 01:
But I do think, and of course the court isn't able to rewrite the rules either.

[00:17:09] Speaker 01:
So I think that that was the committee's, I guess, best efforts.

[00:17:13] Speaker 01:
you know, after saying it does not apply to collateral orders.

[00:17:17] Speaker 01:
And after probably looking at the behavior of courts and litigants, we know that this is not a common thing.

[00:17:25] Speaker 01:
It's really only in these five cases that are before the court that we footnoted.

[00:17:30] Speaker 01:
It's not like a common argument made or even a common set of circumstances.

[00:17:35] Speaker 01:
So I think that was the acknowledgement of the committee that this doesn't come up.

[00:17:39] Speaker 01:
It seems like courts are construing the rules properly and in context.

[00:17:44] Speaker 01:
And so that's what I think that comment sort of addressed.

[00:17:50] Speaker 02:
And your friend on the other side says that his interpretation of the rules would apply to preliminary injunction appeals, just as it does to collateral order appeals.

[00:18:00] Speaker 02:
Do you think that's right, or do you think there's any reason that they would be treated any differently?

[00:18:05] Speaker 01:
Sure.

[00:18:07] Speaker 01:
I think that, yeah, my friend on the other side I think argues for potentially a more expansive definition or application of Rule 58 than what we need in this case since we're just addressing collateral orders here.

[00:18:22] Speaker 01:
But I do think that the argument would encompass basically any interlocutory order under 1292 or preliminary injunctions or orders.

[00:18:34] Speaker 01:
You know, not certifying a class.

[00:18:37] Speaker 01:
There's just a proliferation of different orders that would fall under his argument.

[00:18:41] Speaker 01:
And from our broad review, we don't see separate documents issued ever in any of those cases.

[00:18:50] Speaker 01:
And that's why I wanted to talk about the practicalities of my friend on the other side's argument.

[00:18:56] Speaker 01:
We have never found a case in this circuit, and we didn't do an exhaustive search out of it, but where a separate document was entered when a motion for summary judgment was denied on the issue of qualified immunity, nor did we find a case where

[00:19:12] Speaker 01:
Such an order was denied, then the appeal was after the 30 days, and the court went ahead and decided the case.

[00:19:20] Speaker 01:
So that would mean in this circuit, for example, 100 plus district judges are doing something consistent, litigants are operating in a consistent way.

[00:19:29] Speaker 01:
And to adopt my friend on the other side's argument would create a seismic shift in what the district courts need to do.

[00:19:38] Speaker 00:
And what complicated district courts would would, as I think the committee notes indicate, would have to take time.

[00:19:45] Speaker 00:
There's not just sort of an administrative burden that district courts would have to speculate about the potential appeal ability of every order that they issue to make a determination.

[00:19:55] Speaker 00:
And in fact, then,

[00:19:56] Speaker 00:
I'm commenting, sort of implicitly, on whether or not a particular order is one that could be taken up on an introductory appeal.

[00:20:04] Speaker 01:
I agree, Justice.

[00:20:06] Speaker 01:
I mean, the collateral order doctrine is complicated.

[00:20:09] Speaker 01:
And even just in qualified immunity cases, we know

[00:20:13] Speaker 01:
That's complicated as well.

[00:20:15] Speaker 01:
Cases before this court, like Anderson, when you're talking about whether the qualified immunity was denied based on factual disputes or legal issues, it's complicated and that'll require district courts to do that analysis before it comes up here on appeal.

[00:20:34] Speaker 01:
And then the court would then have to do it anyways, again, for its own jurisdiction.

[00:20:38] Speaker 01:
So.

[00:20:39] Speaker 02:
Do you know anything about how the, I mean, the DC Circuit has had this role for 20 plus years.

[00:20:43] Speaker 02:
Do you know anything about how it's worked there?

[00:20:46] Speaker 01:
So again, I didn't do an exhaustive client and then address either of the legal issues, whether there's a violation or a clearly established law.

[00:20:55] Speaker 01:
So I think the court is free to do that.

[00:20:58] Speaker 03:
All right.

[00:20:58] Speaker 03:
Thank you, counsel.

[00:20:59] Speaker 01:
Thank you, your honor.

[00:21:10] Speaker 04:
Thank you, Your Honor.

[00:21:11] Speaker 04:
I appreciate your arguments.

[00:21:12] Speaker 04:
And I'd like to comment on one of the comments that Judge Tsai made.

[00:21:15] Speaker 04:
And she said that it might be complicated for the district court to decide when final judgment is entered.

[00:21:20] Speaker 04:
Well, it's complicated for the district court.

[00:21:23] Speaker 04:
It's going to be also complicated for the parties to also know.

[00:21:25] Speaker 04:
because actually the district court is really the only party that knows when it's really made a final decision.

[00:21:30] Speaker 04:
It knows when it's made a final decision, and therefore that's why they put the onus on the district court to do this.

[00:21:36] Speaker 04:
And again, like I said, in the Deceleris case, the Supreme Court has said this gets to be mechanically applied.

[00:21:43] Speaker 04:
That means that you've got to follow the way that the rule goes mechanically.

[00:21:47] Speaker 04:
If somebody wanted to make an exception, for example, in the advisory committee notes,

[00:21:51] Speaker 04:
They would have done it.

[00:21:52] Speaker 04:
They would have amended the rule.

[00:21:53] Speaker 04:
Like I said, they could have easily done it by putting another exception for these rules.

[00:21:56] Speaker 04:
And they didn't do it.

[00:21:58] Speaker 04:
They decided not to reach that result.

[00:21:59] Speaker 04:
And I don't know why they decided not to do that, but they didn't.

[00:22:03] Speaker 04:
I would also like to respond to Judge Rollins's argument.

[00:22:05] Speaker 04:
She wanted to know what case it was.

[00:22:06] Speaker 03:
I'm not arguing.

[00:22:07] Speaker 04:
I'm deciding.

[00:22:08] Speaker 04:
I apologize, Your Honor.

[00:22:10] Speaker 04:
your comment that the case I would rely on is the Corrigan case in the Ninth Circuit because the Corrigan case, while it didn't face this qualified of this exact thing of an interlocutory appeal, it talks about

[00:22:25] Speaker 04:
that this rule has to be mechanically applied.

[00:22:27] Speaker 04:
And it said, the court reached the same result as the case in Urshula, and it said the separate document rule should be interpreted to prevent the loss of a right appeal, not to facilitate it.

[00:22:37] Speaker 04:
That's what the argument on the opposing counsel is doing.

[00:22:39] Speaker 04:
Their argument facilitates the loss of appeal.

[00:22:42] Speaker 04:
The reason why this thing is to be mechanically applied is because we're entitled to rely on the plain language of the rule.

[00:22:48] Speaker 04:
We are entitled to do that.

[00:22:50] Speaker 04:
If they want to make different rules, the court can always go ahead and do that.

[00:22:54] Speaker 04:
The Supreme Court changes the rules all the time.

[00:22:56] Speaker 04:
And they do it because they think it needs to be done.

[00:22:59] Speaker 03:
But the Supreme Court has not made that decision in this case.

[00:23:09] Speaker 04:
There is not, Your Honor.

[00:23:11] Speaker 04:
The court in the Carly case, Judge Bybee, was very clear on that.

[00:23:16] Speaker 04:
That this court needs to, there is no issue of fact.

[00:23:19] Speaker 04:
This is an issue of law.

[00:23:20] Speaker 04:
Qualified immunity is an issue of law.

[00:23:22] Speaker 04:
And therefore, you have to just construe the facts in favor of the plaintiff.

[00:23:28] Speaker 04:
And then, after you do that, see as a matter of law whether or not there's clearly established law.

[00:23:34] Speaker 03:
So the plaintiff

[00:23:36] Speaker 03:
asserted that he was caused pain because the doctor made a surgical incision without anesthesia.

[00:23:45] Speaker 04:
Your Honor, that's a medical judgment for the doctor to make.

[00:23:49] Speaker 04:
Anesthesia has its own risks.

[00:23:51] Speaker 04:
Pain could be one thing that happens, and pain happens all the time when doctors are examining patients.

[00:23:57] Speaker 04:
For example, my wife goes to the chiropractor, and she needs her back adjustment.

[00:24:01] Speaker 04:
Well, when her back's adjusted, it causes her pain, but it's better for her in the long run.

[00:24:05] Speaker 04:
And that's the decision we want to have doctors make.

[00:24:07] Speaker 03:
Surgery without anesthesia is pretty rare.

[00:24:11] Speaker 04:
You've got to understand what kind... No, it's not, Your Honor.

[00:24:15] Speaker 04:
When you're talking about these things, which is... He wants to make this something big, but if you look at what a lymphoma is, it's a piece of fatty tissue, you know, to go in and you go slice and it's off.

[00:24:25] Speaker 04:
It's not a thing that's going to cause a lot of pain.

[00:24:28] Speaker 04:
And that's the doctor's medical judgment.

[00:24:30] Speaker 03:
Taking the facts in the light most favorable to him, he said it cost him a lot of pain.

[00:24:38] Speaker 03:
If we take the facts in the light most favorable to him, he suffered a lot of pain.

[00:24:43] Speaker 04:
But Your Honor, not only has he suffered pain, Dr. Naughton has to know that he suffered pain.

[00:24:48] Speaker 04:
There's no evidence in the record that he actually said to Dr. Naughton that he suffered any pain, and therefore, there's no way he knows.

[00:24:55] Speaker 04:
Without knowledge, there is no deliberate indifference.

[00:24:57] Speaker 04:
Without deliberate indifference, there's no clearly established law that says Dr. Naughton was ill.

[00:25:01] Speaker 03:
I understand your argument, Counsel.

[00:25:02] Speaker 03:
Thank you.

[00:25:02] Speaker 04:
Thank you, Your Honor.

[00:25:03] Speaker 04:
Appreciate the opportunity to address the Court.

[00:25:05] Speaker 04:
Absolutely.

[00:25:05] Speaker 03:
Thank you to both parties.

[00:25:07] Speaker 03:
The case just argued is submitted for decision by the court.

[00:25:10] Speaker 03:
The next case is Patterson versus Benson.