[00:00:00] Speaker 03: Thank you. [00:00:00] Speaker 03: We're ready to start our final oral argument of the day. [00:00:03] Speaker 03: 24-8017, Parkhurst versus Shannon. [00:00:09] Speaker 03: Ms. [00:00:09] Speaker 03: Cassis? [00:00:11] Speaker 03: Did I pronounce that right, I hope? [00:00:12] Speaker 03: Yes. [00:00:13] Speaker 03: Thank you. [00:00:14] Speaker 03: You may begin. [00:00:15] Speaker 04: Good afternoon, Your Honours, and may it please the court. [00:00:18] Speaker 04: Leila Cassis on behalf of Appellant Derek Parkhurst. [00:00:21] Speaker 04: I plan to reserve two minutes for rebuttal. [00:00:23] Speaker 04: The District Court below erred in granting summary judgment to Ms. [00:00:27] Speaker 04: Stinson on both of Mr. Parker's First Amendment retaliation claims. [00:00:32] Speaker 04: With respect to the first claim, the District Court erroneously erred in holding that a threat of termination could not constitute an adverse action. [00:00:42] Speaker 04: On the second claim, the District Court erred in applying the so-called checkmate doctrine discussed in Dicta and Racheno v. Roberts, which was in clear contradiction with the correct causation standard, which looks only to retaliatory motive as exemplified in Smith v. Mechner. [00:01:00] Speaker 04: This court should affirm [00:01:02] Speaker 04: that the but-for causation standard applies. [00:01:05] Speaker 04: In the alternative, should the checkmate doctrine apply to the second claim, it requires both some evidence and due process to be otherwise satisfied. [00:01:14] Speaker 04: Here, due process was violated at Mr. Parker's disciplinary hearing because he was denied one, access to surveillance footage, two, the ability to call critical witnesses, and three, a neutral impartial hearing officer. [00:01:30] Speaker 04: On the first claim, I note that the first and third elements are not disputed by Ms. [00:01:34] Speaker 04: Stinson. [00:01:36] Speaker 04: And of course, a threat of termination would easily chill a prisoner of ordinary firmness from continuing to engage in First Amendment activity. [00:01:44] Speaker 04: The court has explicitly held that outright termination of a prison job constitutes an adverse action in Milligan versus Archuleta. [00:01:53] Speaker 04: It would make little sense to allow the government to threaten what it cannot do outright. [00:01:58] Speaker 04: And this court has essentially held in Intachius that a threat of a civil action is just as chilling as an actual civil action. [00:02:09] Speaker 04: And we also would like to note that a threat of termination would actually be more chilling than an actual termination in some ways because the threat endures and can be leveraged repeatedly against the prisoner. [00:02:25] Speaker 03: Does it matter what the language of the threat is? [00:02:28] Speaker 03: It wasn't explicit at all in this case. [00:02:32] Speaker 03: You're inferring that he was threatening. [00:02:36] Speaker 03: I can't remember the exact language, but it wasn't, get out of here, you're fired. [00:02:42] Speaker 04: There's two pieces to the analysis here. [00:02:46] Speaker 04: The first is a legal question, and that's whether a threat of termination constitutes an adverse action. [00:02:52] Speaker 04: And that's the question that the court can answer here. [00:02:55] Speaker 04: The second question is a factual question. [00:02:57] Speaker 04: And that's whether what Miss Stinson stated rises to the level of a threat of termination. [00:03:03] Speaker 04: The district court had already held that Mr. Parkhurst had submitted enough evidence in the record that that was a factual dispute that a jury would decide. [00:03:13] Speaker 04: So in terms of. [00:03:15] Speaker 04: It what instance and said, um, there's enough evidence in the record that Mr. Parker's essentially understood, um, what was stated, um, was a threat of termination. [00:03:26] Speaker 02: Didn't the district court conclude that, um, the, the threat wouldn't have deterred or chilled the, um, activity of Mr. Parker's. [00:03:39] Speaker 02: The district court, in other words, didn't the district court already resolve the fact question against your client? [00:03:47] Speaker 04: District court in analyzing that element looked subjectively to determine whether or not Mr. Simpson would be chilled and stated that because he filed a grievance, he was not actually chilled. [00:04:02] Speaker 04: And the element is a objective standard. [00:04:05] Speaker 04: It's whether an ordinary prisoner in this context would be chilled. [00:04:11] Speaker 04: And here at issue is whether a threat of termination would constitute an adverse action. [00:04:19] Speaker 04: And there's sufficient evidence in the record that that was a threat of termination. [00:04:27] Speaker 02: Can we decide on this, appeal the objective aspect of it? [00:04:33] Speaker 02: It's an objective standard, can't we reach that here? [00:04:36] Speaker 04: Absolutely, Your Honor. [00:04:38] Speaker 04: This court can determine whether a threat of termination, in a broader sense, can constitute an adverse action. [00:04:46] Speaker 02: I'm saying whether this threat was objectively chilling. [00:04:52] Speaker 04: The court can look at the facts in the record here, and the court can determine whether there's sufficient evidence [00:05:03] Speaker 04: to create a dispute of fact. [00:05:06] Speaker 04: And here, Mr. Parkhurst testified at his deposition that he understood that that was a threat of termination based on the context, the tone. [00:05:17] Speaker 04: And so there's sufficient evidence in the record that Mr. Parkhurst understood that that was a threat of termination, such that that's a question for the jury to decide. [00:05:27] Speaker 02: But it's not his perception of the threat, it's whether [00:05:30] Speaker 02: The threat would show a person of ordinary firmness in pursuing the complaint. [00:05:38] Speaker 02: Of course, and we don't care about Parkhurst is subjective reactions. [00:05:43] Speaker 02: It's what an objective observer would have reacted. [00:05:47] Speaker 04: Of course, and that merely colors the inquiry that at least some prisoners would understand that to be a threat of termination. [00:05:55] Speaker 04: I'll also point to the court that a threat of termination in the public employment context constitutes an adverse action. [00:06:03] Speaker 04: And there is no reasonable reason stated here why that understanding would not apply in the prison context. [00:06:12] Speaker 00: Ms. [00:06:13] Speaker 00: Casas, could I ask [00:06:17] Speaker 00: on that a little bit. [00:06:21] Speaker 00: Let me start by asking, do the circumstances involving this kitchen job bear on this objective inquiry? [00:06:32] Speaker 00: of chilling an inmate of ordinary firmness from making a report. [00:06:39] Speaker 00: In your brief, you make a very eloquent, very persuasive argument about the importance of prison jobs. [00:06:48] Speaker 00: People need this. [00:06:49] Speaker 00: Well, the only fact in reading the deposition testimony in the summary judgment record is that he had worked at this job for four months. [00:07:01] Speaker 00: Some of the things that I don't know that a district court, even reasonably considering the evidence in the light most favorable to the plaintiff, would have any basis for speculating is, did everybody at this prison get a job? [00:07:16] Speaker 00: Was the kitchen job the bottom of the barrel, so to speak? [00:07:21] Speaker 00: Did he get this because he put in for being a carpenter and everybody wanted to be a carpenter and only the losers really got to be a kitchen worker? [00:07:30] Speaker 00: Was this boss, I guess, Miss Denson, was she someone that nobody ever wanted to work for and poor Parker's got assigned to her? [00:07:41] Speaker 00: So in light of the dearth of evidence about the circumstances, whether this is an attractive or unattractive job, do those bear on the objective inquiry? [00:07:53] Speaker 04: I think of the inquiry in two steps. [00:07:56] Speaker 04: And the first is the legal, the initial legal [00:08:00] Speaker 04: test. [00:08:01] Speaker 04: And I don't think of that as taking into account of what kind of job it is. [00:08:06] Speaker 04: And you think about in the employment context, in the public employment context, you don't ask, is this a government janitor or is this a [00:08:14] Speaker 04: you know, a government high level official and whether being fired from that job. [00:08:18] Speaker 03: Maybe we should. [00:08:19] Speaker 03: I'm uncomfortable with your rigid division between the legal issue and the factual issue. [00:08:26] Speaker 03: Judge Bacharach pointed out this is very different from your usual job firing. [00:08:32] Speaker 03: When you're fired, you don't work for that employer anymore. [00:08:36] Speaker 03: Here, you have an institution that'll do something for you, and they want to get useful work out of these people. [00:08:44] Speaker 03: So being fired from that job doesn't mean it. [00:08:47] Speaker 03: There's also the question of the ambiguity of it. [00:08:50] Speaker 03: Yes, the jury might decide, yeah, we think by proponents of the evidence, this was a threat to fire. [00:08:57] Speaker 03: But it was an obscure threat or could be viewed as an obscure threat. [00:09:02] Speaker 03: And that's not as forceful. [00:09:06] Speaker 03: That's not as fear inspiring as a direct threat that you're going to be fired. [00:09:12] Speaker 03: So depending on how severe the threat is, how clear it is, what the consequences of it would be may make a difference regarding whether a reasonable person would be deterred from it. [00:09:26] Speaker 03: So I deal with that as you may, but particularly given Judge Bacharach's insights just now, I think it's more complicated than just saying is a threat of firing. [00:09:40] Speaker 03: I'm talking too much. [00:09:40] Speaker 03: Go ahead and respond. [00:09:43] Speaker 04: I think that's a great point. [00:09:44] Speaker 04: And when you look at the case law, Vanton Books, it just talks about a threat of invoking legal sanctions. [00:09:51] Speaker 04: It doesn't discuss what those legal sanctions were. [00:09:53] Speaker 04: If you look at Tachius, it's a threat of a civil action, but it doesn't discuss what kind of civil action would be at issue. [00:10:00] Speaker 04: And if you look at Worrell, it talks about a threat of criminal prosecution, but it doesn't say what you would be charged with, jaywalking or murder. [00:10:08] Speaker 04: And so it [00:10:11] Speaker 04: doesn't matter what the actual context of the threat was. [00:10:15] Speaker 04: The preliminary question is whether a threat in of itself, whether it's a direct threat, you are going to be fired, or a more indirect threat here constitutes an adverse action. [00:10:27] Speaker 04: And then it's up to a jury to decide whether or not they find that sufficiently to be a threat of an adverse action. [00:10:34] Speaker 04: I'd really like to discuss the second claim, if I may, whether Raquelina applies or not. [00:10:41] Speaker 04: And I want to flag for the court that the first and second elements are not disputed by Ms. [00:10:46] Speaker 04: Stinson here. [00:10:47] Speaker 04: The lodestar of a causation inquiry is motive. [00:10:51] Speaker 04: In every other type of First Amendment retaliation claim, we're always looking at what the official's motive was, whether they would have taken the adverse action absent a retaliatory motive. [00:11:04] Speaker 04: Here, the question normally would be whether Ms. [00:11:07] Speaker 04: Stinson would have filed the disciplinary charge absent a retaliatory motive, not whether Ms. [00:11:14] Speaker 04: Stinson would have filed the disciplinary charge absent there being some evidence [00:11:18] Speaker 04: and due process satisfied at the hearing. [00:11:21] Speaker 04: The plain text of Whorl and the First Amendment retaliation claims on this element merely provide that Mr. Parkhurst has to show that the defendant's adverse action was substantially motivated as a response of the plaintiff's exercise of constitutionally protected conduct. [00:11:38] Speaker 04: Ms. [00:11:38] Speaker 04: Stinson is always welcome to argue to a jury that she would have made the same decision to file the charge absent and in impermissible motive. [00:11:48] Speaker 04: And I want to quickly touch on why the checkmate doctrine of the 8th and 11th circuits, which is a minority decision, is fundamentally incompatible with the normal causation standard and is not a application of the normal but for causation standard as example. [00:12:05] Speaker 03: Maybe the minority view, but you've got to explain why we shouldn't follow our precedent that did apply the checkmate doctrine. [00:12:14] Speaker 04: First, the doctrine looks exclusively to whether due process was satisfied at the hearing with no inquiry as to why the official filed the charge in the first place. [00:12:24] Speaker 04: So you can have a fully retaliatory charge and that passes due process muster. [00:12:30] Speaker 04: And that doctrine would say that that prisoner doesn't have a claim. [00:12:33] Speaker 03: And the second point is that you're criticizing what we said. [00:12:38] Speaker 03: Why don't we have to follow our precedent that relied on the checkmate doctrine? [00:12:44] Speaker 03: You could make a good argument for on bond preview on that ground, but this panel can't do it can't help you. [00:12:53] Speaker 04: And that's why that discussion in Rekena is completely dicta. [00:12:57] Speaker 04: If you look closely at the opinion, you'll see that the court explicitly provides that collateral estoppel had already prevented the court from relitigating that First Amendment claim. [00:13:11] Speaker 04: And collateral estoppel is a threshold inquiry in the same way that the court would analyze standing or mootness. [00:13:18] Speaker 04: And because the Kansas Court of Appeals had already reviewed [00:13:23] Speaker 04: that prisoner's First Amendment retaliation claim and looked at all three elements and held that there was no evidence of a retaliatory motive. [00:13:31] Speaker 04: The 10th Circuit cannot, the district court and federal courts cannot come and relitigate the claim and state that he also fails on one of the elements because the claim was already relitigated, litigated by the Kansas Court of Appeals. [00:13:48] Speaker 03: You raise a pretty fundamental issue. [00:13:50] Speaker 03: If we, if we state alternative grounds for ruling, either ground could be considered dictum. [00:13:57] Speaker 03: They didn't have to, the court, the panel didn't have to address collateral estoppel because it relied on the checkmate doctrine. [00:14:03] Speaker 03: So the collateral estoppel part of our opinion is just dictum in that regard. [00:14:09] Speaker 03: How'd you decide which of the alternatives is dictum or are they both dictum? [00:14:14] Speaker 03: Are we just wasting time if we give more than one? [00:14:17] Speaker 03: Go ahead. [00:14:18] Speaker 04: Absolutely not. [00:14:19] Speaker 04: And typically a court will look at multiple elements of a claim and say, you can't meet element one. [00:14:23] Speaker 04: And in the alternative, you can't meet element two. [00:14:26] Speaker 04: But collateral estoppel is different because it's not an element of the claim. [00:14:29] Speaker 04: It's a more broader understanding. [00:14:31] Speaker 04: It's a threshold inquiry, the same way you would look at standing, mootness and ripeness. [00:14:36] Speaker 03: So it's... I'll bet I could find cases of ours where collateral estoppel was raised as a defense and we don't address it because we say you lose on the merits. [00:14:46] Speaker 03: So go ahead. [00:14:49] Speaker 04: And I'm happy to provide case law on that basically asserts that that's a threshold inquiry from the Ninth Circuit. [00:14:55] Speaker 04: I have offshore sportswear and that's 114 F third. [00:14:59] Speaker 03: If they're not in your brief, you can supplement it with a 28 J letter. [00:15:05] Speaker 03: You don't need to recite the cases here. [00:15:08] Speaker 04: Absolutely. [00:15:08] Speaker 04: And to go back to my second point, the doctrine would allow an official to file a disciplinary charge for minor infractions a prisoner may have technically committed and use that as a pretext for retaliation. [00:15:19] Speaker 04: With that, I see my time is out. [00:15:22] Speaker 04: I respectfully request that this court reverse on the grants of summary judgment. [00:15:28] Speaker 03: Thank you, counsel. [00:15:31] Speaker 03: Case is submitted. [00:15:32] Speaker 03: Council are excused. [00:15:34] Speaker 03: Court will be in recess. [00:15:35] Speaker 03: Oh, sorry. [00:15:38] Speaker 03: It's about time I cut you off, though, Judge Dr. Act. [00:15:42] Speaker 03: Go ahead. [00:15:42] Speaker 03: I apologize. [00:15:46] Speaker 03: Did you want to ask a question? [00:15:47] Speaker 00: No, it's Mr. Miller. [00:15:49] Speaker 00: I don't think he's had a chance. [00:15:52] Speaker 00: Oh, my gosh. [00:15:57] Speaker 03: Mr. Miller, would you like to say a few words? [00:16:10] Speaker 01: Yes, I don't know that they're worth hearing. [00:16:16] Speaker 01: My name is Timothy Miller. [00:16:18] Speaker 01: I'm a senior assistant attorney general, and I'm here representing America Stinson, who is a food service worker at Wyoming [00:16:27] Speaker 01: There are two claims in this case. [00:16:34] Speaker 01: The district court correctly granted summary judgment on both of them. [00:16:40] Speaker 01: The first claim involves an alleged statement to hit the road if you don't like it by Ms. [00:16:49] Speaker 01: Stinson to Mr. Parkhurst in March of 2021. [00:16:57] Speaker 01: Um, and after making that statement, Mr. Parker's went right out and grieved Ms. [00:17:04] Speaker 01: Stinson, uh, for, uh, allegedly requiring him to serve, uh, bad ranch dressing. [00:17:14] Speaker 01: Um, and he has made a retaliation claim based on what she said. [00:17:19] Speaker 01: Uh, this, the second claim is, uh, the issuance of [00:17:27] Speaker 01: of a disciplinary write-up by Ms. [00:17:31] Speaker 01: Stinson, allegedly in retaliation for some information that Mr. Parkers had complained about the ranch dressing. [00:17:45] Speaker 01: I plan to address claim two first because of the court's questions. [00:17:51] Speaker 01: However, I will spend a moment on claim one and Judge Baccarat [00:17:57] Speaker 01: has hit, I think, a principal point in this case on claim one. [00:18:06] Speaker 01: The second element requires a plaintiff to show that the defendant's actions caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in protected activity. [00:18:23] Speaker 01: We have no description of an injury here anywhere. [00:18:28] Speaker 00: Well, can I push, can I test that from your perspective? [00:18:34] Speaker 00: For Ms. [00:18:34] Speaker 00: Stetson, as Ms. [00:18:36] Speaker 00: Kansas noted, you know, we typically, with public sector employment, you know, some of the cases that she's mentioned, we typically don't talk about, well, was this, you know, job as a sanitation worker, was it a job that the person really cared about? [00:18:52] Speaker 00: And we do view the evidence in the light most favorable to the plaintiff. [00:18:57] Speaker 00: And so we do know that he had worked every day, according to his testimony and his deposition, I think, every day in the kitchen for four months. [00:19:07] Speaker 00: So if we view the evidence in the light most favorable to the plaintiff, [00:19:11] Speaker 00: If we do infer that, well, if you don't like it, you can hit the road, if that was a threat of termination, why couldn't a reasonable fact finder, viewing the evidence favorable to the plaintiff, reasonably infer that that would chill a person? [00:19:27] Speaker 00: of ordinary firmness, maybe not a person like Mr. Parkhurst himself, but subjectively, but why isn't the fact that he worked every single day for four months enough to chill a person of ordinary firmness? [00:19:48] Speaker 01: Well, Your Honor, I don't think it does. [00:19:54] Speaker 01: It's a very, it's a vigorous standard for chill. [00:19:57] Speaker 01: be ordinary firmness. [00:20:01] Speaker 01: And I respectfully submit that what Mr. Parkhurst, in fact, did does provide some evidence as to what a reasonable person would do, whether a reasonable person would be chilled. [00:20:19] Speaker 01: And in the Shiro case, 510 F3 1204, this court did make reference [00:20:27] Speaker 01: to the fact that a man who'd been limited in some way in speaking at a city council hearing had continued to speak at city council hearings and had not been inhibited. [00:20:40] Speaker 01: This court has found that harassing an inmate all night, calling him a dumb Indian as a matter of law was insufficient to chill an inmate or a person of [00:20:56] Speaker 01: ordinary firmness from engaging in the protected activity. [00:21:01] Speaker 01: And so based on that authority, a straight comment of this kind, and let me also distinguish this case from Paisley, which is cited by plaintiff in the supplemental reply. [00:21:18] Speaker 01: In Paisley, the defendant [00:21:23] Speaker 01: said, if you file a grievance, I will have you transferred out of the unit. [00:21:28] Speaker 01: You will lose your job and you will have your ass transferred so far up north that your family won't recognize you when you get back. [00:21:38] Speaker 01: I think the nature of the comment makes a difference in making a determination as to whether it would chill a person of ordinary firmness. [00:21:51] Speaker 01: And, um, [00:21:53] Speaker 01: I don't know that, I don't think the record contains enough information about the performance of this particular position to raise an issue of fact on the point that the court raises. [00:22:10] Speaker 01: I would just say on claim one, the district court correctly granted summary judgment ruling that the comment by [00:22:21] Speaker 01: Ms. [00:22:21] Speaker 01: Stinson would not chill a person of ordinary firmness applying that standard. [00:22:28] Speaker 01: Now turning to claim two and the questions that the court asked. [00:22:34] Speaker 01: And I am in the uncomfortable position of suggesting to the court that it asked a bad question. [00:22:46] Speaker 01: The parties agreed that a due process analysis does not have any place [00:22:51] Speaker 01: in a retaliation claim. [00:22:53] Speaker 01: And there's good reason for that. [00:22:56] Speaker 01: They are entirely separate constitutional provisions under entirely separate amendment. [00:23:02] Speaker 01: The elements of the claims are entirely different. [00:23:06] Speaker 01: And most fundamentally, due process only applies if you have a liberty or property interest. [00:23:14] Speaker 01: That is an underlying requirement. [00:23:18] Speaker 01: And so to just [00:23:21] Speaker 01: For us, the due process analysis on a retaliation claim without regard to whether due process would even apply in the proceeding seems to me to not make sense. [00:23:33] Speaker 01: And I would make this point about Requena, which I may not have made strongly enough in the brief. [00:23:40] Speaker 01: In Requena, there was a Requena one in which a petition for habeas corpus was rejected by the court. [00:23:51] Speaker 01: There was a due process analysis in Requina 1 because it was a loss of good time credits under Kansas law that provided a right to that benefit. [00:24:02] Speaker 01: And so, due process did come into play in that case. [00:24:08] Speaker 01: In this case, it is the Requina standard, which by its express language does not include due process, but in any event, follows from [00:24:20] Speaker 01: but for causation. [00:24:22] Speaker 01: We are going to have this argument inevitably at trial. [00:24:30] Speaker 01: Plaintiff is going to have to show that he would not have been sanctioned, he would not have been written up, but for a retaliatory motive. [00:24:43] Speaker 00: Okay, let me ask you, but can I ask you about that Mr Miller? [00:24:46] Speaker 00: Yes, this is 1 item that I don't think Miss Cass has got to, but it's certainly in a brief. [00:24:52] Speaker 00: Now, she argues that Requena is inconsistent with Smith versus Maschner. [00:25:01] Speaker 00: We have precedent in our circuit that when there's an intra-circuit inconsistency of presidential opinions, we abide by the first one with the theory being that the second one [00:25:14] Speaker 00: was incorrect because no panel can overrule another panel in 2018. [00:25:19] Speaker 00: And I did join Requena, but there is no reference to Smith versus Maschner. [00:25:25] Speaker 00: I don't think you had an opportunity in your briefing to explain how Smith versus Maschner can be reconciled with Requena. [00:25:36] Speaker 00: So I want to give you a chance because I'm struggling to see [00:25:41] Speaker 00: whether or not we made a goof up in Requena by overlooking Smith versus Maschner. [00:25:50] Speaker 00: How can they be reconciled? [00:25:54] Speaker 01: Well, I think they can be reconciled because Smith versus Maschner recognized the bud for causation task, which I think is what the Requena holding ultimately should flow from. [00:26:08] Speaker 00: But we didn't certainly say, I wasn't on the court when Smith v. Masterwood was decided, but the circuit in Smith certainly didn't say anything that suggested that if the person is punished for an improper motive, no harm, no foul, because they could have been punished because there was evidence [00:26:34] Speaker 00: some evidence under Superintendent versus Hill to support the disciplinary infraction. [00:26:38] Speaker 00: I mean, that's nowhere in Smith versus Master. [00:26:42] Speaker 00: So it seems that Requena included that. [00:26:47] Speaker 00: That's the very point that you're relying on and that the district court relied on. [00:26:52] Speaker 00: And that seems to be including a requirement that is absent from Smith for the very reason that you just mentioned. [00:26:58] Speaker 00: In Smith, it was simply but for causation, not [00:27:01] Speaker 00: the existence of an additional theory that there was an evidentiary basis for the infraction, even if it was imposed for an improper purpose. [00:27:13] Speaker 01: Well, Your Honor, to my recollection, the argument about the effect of the disciplinary finding was not raised in Smith v. Magner. [00:27:25] Speaker 01: And so I don't believe... What was it? [00:27:29] Speaker 03: Excuse me. [00:27:29] Speaker 03: What was it raised? [00:27:31] Speaker 01: The effect of a disciplinary finding against the inmate, to my recollection, was not raised in Smith v. Maschner. [00:27:45] Speaker 01: It is not entirely on all fours where the court said, we're not going to adopt this rule, and then later on adopted the rule. [00:27:56] Speaker 03: Did the court and Smith v. Maschner [00:28:02] Speaker 03: say that there was a denial of due process at the hearing because there wasn't, there was deprivation of a witness or something like that? [00:28:11] Speaker 03: Do you recall if that was the case? [00:28:13] Speaker 01: I do not recall, Judge. [00:28:15] Speaker 01: I apologize. [00:28:18] Speaker 01: I do not apologize. [00:28:19] Speaker 01: I apologize. [00:28:20] Speaker 01: I don't recall any way a due process analysis coming up at all in Smith versus Matchner. [00:28:28] Speaker 01: And so I would say that [00:28:32] Speaker 01: The decision in Requena is not inconsistent because it is an additional issue that was not considered in Smith v. Matchner. [00:28:43] Speaker 01: That is the position that we would take. [00:28:47] Speaker 01: And Requena, I think, is absolutely governing. [00:28:55] Speaker 01: There is a case in terms of Requena somehow being dicta, [00:29:03] Speaker 01: This court has held that collateral estoppel does not raise a threshold question as to jurisdiction, specifically in Keller Tank Services, which is at 854 F3rd 1178. [00:29:26] Speaker 01: Collateral estoppel is an affirmative defense, unlike mootness, [00:29:30] Speaker 01: the invocation of collateral estoppel to support a position on the merits does not introduce any jurisdictional element into the case. [00:29:38] Speaker 01: And so what we have is exactly the point that Judge Hart's made. [00:29:43] Speaker 01: Nothing is binding if there are alternative rulings because neither one of them, if you could use one to resolve it, neither one of them, [00:29:59] Speaker 01: is binding. [00:30:00] Speaker 01: Requena is binding. [00:30:03] Speaker 01: It does adopt the rule. [00:30:07] Speaker 01: It doesn't refer to it as a checkmate rule. [00:30:11] Speaker 01: But Requena is very clear, and I think it is important to separate the due process analysis. [00:30:17] Speaker 01: I think the requirement of evidence follows from but for causation. [00:30:23] Speaker 01: If the sanction is not just found, there's evidence to support it. [00:30:26] Speaker 01: It would have happened anyway. [00:30:30] Speaker 00: I do want to make mention... Can I ask you a hypothetical question? [00:30:34] Speaker 00: What if Ms. [00:30:35] Speaker 00: Stinson said, you know, I'm tired of your backtalk on these, you know, on this. [00:30:46] Speaker 00: You're not complying with my directive that's in subordination. [00:30:54] Speaker 00: And besides, you're a darn, pick your pejorative for a minority, Hispanic, Jewish, African-American, whatever it is. [00:31:08] Speaker 00: And the person says, Ms. [00:31:10] Speaker 00: Stinson fired me because she specifically included a pejorative reference to my religion, my race, my ethnicity. [00:31:21] Speaker 00: And then the district court said, well, you were in subordinate. [00:31:27] Speaker 00: It's a very minimal standard under superintendent versus Hill. [00:31:31] Speaker 00: There just has to be some evidence. [00:31:33] Speaker 00: There's some evidence that you were in subordinate. [00:31:36] Speaker 00: So it didn't really matter if Ms. [00:31:38] Speaker 00: Stinson fired you, partly because you were black or Jewish or Hispanic, because [00:31:47] Speaker 00: You know, there was some evidence that you were insubordinate. [00:31:50] Speaker 00: Is that your understanding of what our law is and should be? [00:31:57] Speaker 01: Judge, and I apologize. [00:31:59] Speaker 01: I can't recall the case. [00:32:00] Speaker 01: I believe it is a 10th Circuit decision. [00:32:04] Speaker 01: A noose. [00:32:08] Speaker 01: An African-American inmate, there was a noose somewhere in his vicinity. [00:32:12] Speaker 01: And I believe the court ruled that that was not [00:32:17] Speaker 01: sufficient to be chilling. [00:32:20] Speaker 01: In terms of the court's direct question, we're now kind of blending a little bit. [00:32:27] Speaker 01: I'm not exactly sure that a claim about some kind of discriminatory comment, does that give rise to something else? [00:32:35] Speaker 01: I'm not sure about that. [00:32:37] Speaker 01: But I would say that if [00:32:43] Speaker 01: If the violation is found, it flows from, but for causation and there is no retaliation claim. [00:32:53] Speaker 01: And let me just, and I know I'm over time, but- Yeah, it's my fault. [00:32:57] Speaker 01: Sorry. [00:32:58] Speaker 01: No, it's always my fault. [00:33:02] Speaker 01: The alternative to this is an inmate files a grievance and then everything is fair game. [00:33:10] Speaker 01: He or she can violate any rule. [00:33:13] Speaker 01: he or she can smuggle in contraband, can be found to have done it, and he still has a retaliation claim to go forward. [00:33:23] Speaker 01: So there is an opposing policy view on this. [00:33:27] Speaker 01: And the last thing, if I could just indulge for 20 seconds, this principle is somewhat like Nieves v. Bartlett, [00:33:39] Speaker 01: in which the US Supreme Court dealt with retaliatory arrest and said, it is really difficult to determine whether it was this retaliatory motive or the possibility of criminal conduct that motivated this arrest. [00:33:59] Speaker 01: And so we have determined that you have to show an absence of probable cause, plaintiff does, to go forward with the claim. [00:34:07] Speaker 01: This is somewhat similar to that. [00:34:10] Speaker 01: Whereas it is difficult to separate out retaliatory motive from the actual conduct and a rule that if you are found guilty of the conduct and there's evidence to support it, serves the same function as probable cause in the retaliatory arrest content. [00:34:34] Speaker 01: And unless there are any other questions, I will stop. [00:34:39] Speaker 03: Thank you, counsel. [00:34:40] Speaker 03: And it's totally my fault that you went over, because if I'd stuck to my guns and not let you speak at all, it could not have gone over time. [00:34:49] Speaker 03: I was hoping I could say that my error was harmless, because you didn't say anything worthwhile, but you said lots that was worth listening to. [00:35:00] Speaker 01: Well, thank you. [00:35:00] Speaker 01: I appreciate that. [00:35:01] Speaker 01: I was going to express some doubt about the harmless error analysis. [00:35:06] Speaker 03: And that goes for Ms. [00:35:09] Speaker 03: Casas, too. [00:35:10] Speaker 03: Thank you for your presentations here today. [00:35:14] Speaker 03: Cases submitted, Council are excused.