[00:00:00] Speaker 02:
The next case this morning is 24-2179 Spinelli versus Coherence Biosciences Council for Appellant.

[00:00:11] Speaker 02:
If you will make your appearance and proceed, please.

[00:00:15] Speaker 00:
Good morning, Your Honor.

[00:00:17] Speaker 00:
May I please the court?

[00:00:18] Speaker 00:
My name is Vanessa De Niro, and I'm here on behalf of the appellant, Mark Spinelli.

[00:00:23] Speaker 00:
He is also the plaintiff in this case.

[00:00:25] Speaker 00:
We filed this appeal as a result of a

[00:00:30] Speaker 00:
Motion denying the complaint are dismissing the complaint under 12 p six.

[00:00:36] Speaker 00:
We also filed a motion to reconsider consider and or amend the complaint under rule 59 he and that was also denied.

[00:00:47] Speaker 00:
We're arguing today, Your Honor, we initially filed five counts in the initial complaint.

[00:00:54] Speaker 00:
And there was also an amended complaint because this case was removed from New Mexico State Court to the federal court.

[00:01:01] Speaker 00:
And so we filed an initial amended pleading and then, and we had five counts and we appealed only on count one in part and count four.

[00:01:13] Speaker 00:
Count one in part is under the New Mexico Human Rights Act, a violation of that act for disability discrimination and retaliation.

[00:01:24] Speaker 00:
And then also under count four would be for common law retaliation for both disability discrimination, retaliation, and as well as religious discrimination, retaliation.

[00:01:37] Speaker 02:
Mr. Nera, could I interrupt you for a quick second here?

[00:01:40] Speaker 02:
I am trying to get clear the procedural posture of this case and your understanding of it.

[00:01:47] Speaker 02:
It's a little bit of a head scratcher to me that the district court dismissed claims without prejudice.

[00:01:57] Speaker 02:
and we're here now.

[00:02:00] Speaker 02:
And so, and there is some language in your briefing, I think that suggested below that you had some question as to whether this matter was final or not, or whether that was a final order.

[00:02:13] Speaker 02:
But so what is your perception of what the district court was doing and when it dismissed without prejudice and connected to that is,

[00:02:25] Speaker 02:
the fact that you file a Rule 59E motion would suggest that you did think it was final.

[00:02:30] Speaker 02:
So, I mean, was it final or was it not?

[00:02:34] Speaker 00:
After doing substantial research on the matter, my understanding is that it was a final order because given the fact that this was a claim that was filed under the New Mexico Human Rights Act as well as the EEOC, there are statutory limitations on when the plaintiff can bring forward a complaint.

[00:02:56] Speaker 00:
And so upon dismissal of this case, Mr. Spinelli was

[00:03:02] Speaker 00:
was prevented from bringing back the action because he would have been precluded by the statute of limitations due to the filing restraints with the New Mexico Human Rights Act.

[00:03:15] Speaker 00:
And so he would have been past that point.

[00:03:18] Speaker 00:
And there would have been no way to have.

[00:03:20] Speaker 00:
And we did the research on it.

[00:03:22] Speaker 00:
And based on my understanding is that he would have been barred from making those claims.

[00:03:26] Speaker 00:
So our only recourse was to have an appeal.

[00:03:32] Speaker 02:
Hey, can I just stop you for a second and so, so what I would see then as when and I appreciate your answer what I would see then is that the court dismissed with prejudice and I mean without prejudice and our test really is that doesn't bar finality.

[00:03:49] Speaker 02:
if you can construe the intent of the court to be actually to get the action out of court.

[00:03:55] Speaker 02:
I mean, the action is done at that point as opposed to it being sort of the setting the stage for further litigation.

[00:04:05] Speaker 02:
So, when you filed the motion, Rule 59E, if I'm understanding your position, and tell me if I'm wrong, when you filed the motion under Rule 59E, you were accepting the premise that that was a final order, that the court's order dismissing the claims were final, and you were seeking then reconsideration of that final order.

[00:04:27] Speaker 02:
Is that right?

[00:04:28] Speaker 02:
Yes, Your Honor.

[00:04:29] Speaker 02:
Okay.

[00:04:30] Speaker 02:
And you also, at that time, as part of your Rule 59E motion, it was a combined pleading, included that amendment request, right?

[00:04:40] Speaker 02:
Yes.

[00:04:41] Speaker 02:
Okay.

[00:04:42] Speaker 02:
Thank you.

[00:04:42] Speaker 02:
That's helpful.

[00:04:43] Speaker 02:
Go ahead, please.

[00:04:45] Speaker 00:
Thank you.

[00:04:46] Speaker 00:
We filed only under Counts 1 and 4, specifically in Part Count 1 under the New Mexico Human Rights Act, Disability and Retaliation.

[00:04:58] Speaker 00:
The lower court in its order to dismiss the case concluded that Mr. Spinelli failed to articulate that he had a disability because he failed to explain that he had major life activities that were limited by his disability.

[00:05:21] Speaker 00:
And in our briefing, we argued that he did sufficiently plead and that the court failed to

[00:05:28] Speaker 00:
consider the facts in favor of the plaintiff, given the totality of the circumstances and given the procedural law on point, essentially because in the amended complaint, Mr. Spinelli clearly demonstrated that his disability was due to a vaccine

[00:05:51] Speaker 00:
injury from previous years in 2015 and his vaccine injury resulted in permanent paralysis to the left side of his body, his torso and his face, which in there was some case law that certain disabilities can inherently

[00:06:11] Speaker 00:
demonstrate that there will be limitations on major life activities.

[00:06:15] Speaker 00:
And the under the ADA and New Mexico Human Rights Act that follows the Americans Disability Act.

[00:06:23] Speaker 01:
It's, it's not trying to make it difficult for Excuse me, counsel, what was the major life activity that we're dealing with that you referred to in your complaint?

[00:06:36] Speaker 00:
And the initial complaint, we specifically cite to the letter that was prepared by Mr. Spinelli's medical clinician who stated that he was prevented from obtaining the COVID-19 vaccine because of prior injury from the vaccine.

[00:06:57] Speaker 01:
But that doesn't contact the major life activity, does it?

[00:07:01] Speaker 00:
Well, it does because he was unable to obtain a vaccine that is a part of a major life activity that he was because of his previous injury.

[00:07:14] Speaker 00:
It's just like being prevented from taking medications that could alleviate certain injury.

[00:07:19] Speaker 00:
And so that was not

[00:07:22] Speaker 00:
There are specific acts that we did list in our response to the motion to dismiss to elaborate on this point.

[00:07:29] Speaker 02:
And can I hit the pause button there?

[00:07:35] Speaker 02:
There were statements and allegations of fact made in your response, right, to the motion to dismiss and also in seeking amendment.

[00:07:45] Speaker 02:
I mean, in reconsideration and seeking amendment.

[00:07:48] Speaker 02:
But the court was limited to the facts and the complaint, right?

[00:07:52] Speaker 02:
I mean, in making its determination on both the 12b6 and on later when you sought the motion to reconsider.

[00:08:00] Speaker 02:
In other words, the fact that you allege facts that you thought could support your claim in response to the motion to dismiss

[00:08:12] Speaker 02:
would not really have any legal effect, would it?

[00:08:16] Speaker 00:
I would argue that it would because we we have argued in our complaint or in our motion, the response, but also the motion to reconsider and as well as the briefing here in appellate court that the the paralysis to his body and to his face inherently with common sense and any kind of experience and inference, the court should consider that that is a major life activity.

[00:08:41] Speaker 00:
That's a

[00:08:41] Speaker 00:
substantial disability that's going to have impact on major life activity, even if it was not.

[00:08:48] Speaker 02:
Well, I'm sorry, then my common sense wouldn't necessarily lead me there.

[00:08:52] Speaker 02:
I mean, that's your obligation to plead that.

[00:08:55] Speaker 02:
And going back to Judge Kelly's point, I mean, the fact that there is an allegation regarding his condition

[00:09:05] Speaker 02:
still opens the door to what is the consequence of that.

[00:09:09] Speaker 02:
COVID-19, the vaccination is part of this mix, but the question is, the vaccination is not the life activity, is it?

[00:09:18] Speaker 00:
Well, it became a life activity unbeknownst to Mr. Spinelli when he took this job that it actually was going to prevent him from working.

[00:09:26] Speaker 00:
And although that can be a fact that the court can consider is whether or not an accommodation is required because the party would be prevented from working.

[00:09:38] Speaker 00:
There are other factors I just want to argue to hit this point is that because we did provide additional

[00:09:46] Speaker 00:
Facts and elaborated on the major life activities limited by the disability in our response and in our motion to reconsider.

[00:09:55] Speaker 00:
We argued that this would be a manifest injustice if the court didn't take the whole totality of the circumstances, all the information on the record.

[00:10:03] Speaker 00:
into consideration with at least allowing for Mr. Spinelli to amend his pleading so that he can include those facts because the court is now aware of him.

[00:10:14] Speaker 02:
And it would be... Well, Ann, let me hit the pause button on that.

[00:10:16] Speaker 02:
I mean, the question is why is the court obliged to do that?

[00:10:19] Speaker 02:
I mean, there was a 12 v 6 motion.

[00:10:22] Speaker 02:
The court ruled on that motion.

[00:10:24] Speaker 02:
It related to your complaint.

[00:10:25] Speaker 02:
When I read your your motion to reconsider at the end when it had the amendment there was one section and essentially it incorporated But through you know through incorporation the the the arguments that had been made earlier Well, why is it my job as a court to figure out what facts to fit into your second amended complaint?

[00:10:48] Speaker 02:
Which you did not

[00:10:50] Speaker 02:
present a proposal.

[00:10:51] Speaker 02:
So, I don't even know what facts you would want to configure your claim, right?

[00:10:57] Speaker 02:
I mean, why is that the court's obligation?

[00:11:00] Speaker 00:
Because the court does not like to rule on technical violations of procedure, rather on the substance of the case.

[00:11:07] Speaker 00:
And because we did

[00:11:08] Speaker 00:
elaborate in our other filings that these major life activities were directly related to his prior vaccine injury, and it did cause paralysis, which made it very difficult for him to eat to brush his teeth to drive to do basic living necessities, and that that what

[00:11:29] Speaker 00:
I know, Your Honor, you don't agree, but paralysis to your entire left side of the body into the face, we argue that would inherently establish that major life activities are going to be affected and limited.

[00:11:43] Speaker 02:
It really is not a question of whether I agree or disagree in this scenario.

[00:11:47] Speaker 02:
It's a question of what was fled.

[00:11:49] Speaker 02:
You know, and what was the position taken?

[00:11:52] Speaker 02:
Because for a couple reasons.

[00:11:54] Speaker 02:
One, the COVID-19, avoiding the COVID-19 shot would have been predicated on having a disability.

[00:12:03] Speaker 02:
Am I following that correctly?

[00:12:05] Speaker ?:
Correct.

[00:12:05] Speaker 02:
Yes.

[00:12:05] Speaker 02:
Okay.

[00:12:06] Speaker 02:
Well, then the COVID-19 can't be the disability.

[00:12:09] Speaker 02:
I mean, it collapses those two things into one.

[00:12:12] Speaker 02:
I mean, you need the disability and because you have the disability, you don't need to take the COVID-19 vaccination.

[00:12:18] Speaker 02:
The COVID-19 vaccination can't be what allows you to have a disability, can it?

[00:12:25] Speaker 00:
Your Honor, I would agree with you, although it did become a major life activity that was limited, a new limitation to his major life activities, because it prevented him from keeping this job that is a big part of his life.

[00:12:41] Speaker 00:
But importantly, we did elaborate on those facts to establish that there are limitations to his daily activities.

[00:12:47] Speaker 00:
And that was in the subsequent documents that were filed.

[00:12:51] Speaker 00:
And had we been allowed to...

[00:12:55] Speaker 04:
That document wasn't a complaint.

[00:12:57] Speaker 04:
It limited to the complaint in the emotions instance.

[00:13:03] Speaker 04:
And I guess I didn't understand your arguments in your brief, basically asking us now at this point, what did this other document that elaborated when the only real option for you is to once again amend your complaints, file a motion to do a complaint, to add

[00:13:24] Speaker 04:
this element and explain what made your life activity was impact.

[00:13:30] Speaker 04:
Substantial impact.

[00:13:31] Speaker 04:
And that didn't happen.

[00:13:34] Speaker 04:
And the World 59 motion is too late.

[00:13:40] Speaker 04:
You can't just submit extra documents and expect the court just because you want it to, to look outside and complain.

[00:13:49] Speaker 04:
You can't look outside.

[00:13:51] Speaker 00:
Your honor, without allowing for Mr. Spinelli at the stage to not be able to amend his complaint, I'm sorry, at the motion to reconsider stage, would be a manifest injustice because there are facts that do establish.

[00:14:05] Speaker 04:
That's the rule 15 statement of manifest injustice.

[00:14:09] Speaker 04:
We filed this under rule 59.

[00:14:12] Speaker 00:
And that's because there was no other option at that point.

[00:14:16] Speaker 00:
You had an option earlier.

[00:14:18] Speaker 00:
You had an option prior to that point.

[00:14:22] Speaker 00:
in pleading the paralysis from the vaccine injury, the paralysis from our perspective was an inherent disability.

[00:14:32] Speaker 00:
And then also coupled with the support, evidentiary support of his doctor's note, describing that disability, Your Honor.

[00:14:40] Speaker 00:
And so that was our understanding that that was a known disability.

[00:14:44] Speaker 00:
And in the prior motion to dismiss filed by plaintiff,

[00:14:47] Speaker 00:
They had not attacked that issue.

[00:14:49] Speaker 00:
They had attacked the religious discrimination allegation.

[00:14:56] Speaker 00:
And so that was not at issue at the point.

[00:14:59] Speaker 00:
We were under the understanding that the disability was already an accepted element or issue.

[00:15:06] Speaker 02:
And let me ask you this, Ms.

[00:15:07] Speaker 02:
DeNiro.

[00:15:08] Speaker 02:
I mean, even focusing on your amendment, the request for an amendment in the motion to reconsider,

[00:15:18] Speaker 02:
Why, even if the court were inclined to look at that, why was your showing for an amendment even sufficient?

[00:15:26] Speaker 02:
I mean, the local rule of New Mexico requires you to submit a proposed pleading if you're seeking an amendment.

[00:15:35] Speaker 02:
You didn't do that.

[00:15:36] Speaker 02:
You didn't file a separate motion seeking a second amendment complaint.

[00:15:40] Speaker 02:
I mean, so as I said, I looked at the section and all it says is look up there to find the stuff that would go into my second amended complaint.

[00:15:49] Speaker 02:
How is the court supposed to know what would be the content of your second amended complaint if you didn't tell it?

[00:15:58] Speaker 00:
Based on the legal research, Your Honor, what we found was that in order for a motion to amend to even be considered, the motion to reconsider would first have to be established.

[00:16:08] Speaker 02:
What I'm saying is you're showing for a motion to amend in any form.

[00:16:15] Speaker 02:
I understand the research you're talking about, but if the court is going to say, okay,

[00:16:21] Speaker 02:
I'm going to now vacate this judgment so you can re-plead.

[00:16:26] Speaker 02:
Well, it's going to have to know why it should do that, right?

[00:16:30] Speaker 02:
I mean, and what is it that you gave the court so it would know why it should do that?

[00:16:36] Speaker 00:
We believe that we had sufficient arguments on the response to motion to dismiss and in the motion to reconsider.

[00:16:44] Speaker 00:
that the court could take in consideration all of those facts and circumstances in addition to the additional exhibits that were attached.

[00:16:50] Speaker 00:
And that would specifically with respect to the Spinelli's affidavit setting forth explaining in detail what describes his major life activities that are limited by his disability.

[00:17:04] Speaker 00:
And that was our understanding.

[00:17:06] Speaker 00:
We did not know under the federal rules if we were permitted to file and attach

[00:17:12] Speaker 00:
amended complaint at that time.

[00:17:14] Speaker 02:
The rules of the district of New Mexico required you to do that.

[00:17:18] Speaker 02:
I mean, the local rules.

[00:17:20] Speaker 02:
And I'm sorry, I've taken you two minutes beyond your time.

[00:17:24] Speaker 02:
So I'm gonna have to wrap it up.

[00:17:26] Speaker 02:
I'll give you a guess, please.

[00:17:29] Speaker 00:
Under Rule 59E, it doesn't, and the case law corresponding to that didn't make it clear whether or not an amended complaint could be attached.

[00:17:38] Speaker 00:
Under Rule 15, yes.

[00:17:39] Speaker 00:
And so that's where the uncertainty was at.

[00:17:42] Speaker 00:
We didn't want to violate yet another procedural rule by attaching a complaint.

[00:17:48] Speaker 02:
Thank you.

[00:17:49] Speaker 02:
Thank you.

[00:17:52] Speaker 02:
Council for Appellee, please proceed.

[00:17:55] Speaker 03:
Good morning, Your Honors.

[00:17:56] Speaker 03:
May it please the Court.

[00:17:57] Speaker 03:
My name is Ryan Carlson.

[00:17:59] Speaker 03:
I represent the Appellee Coherence Oncology, and I'm here today to ask Your Honors to affirm the District Court's ruling dismissing the appellant's complaint.

[00:18:09] Speaker 03:
Now, this appeal asks whether the District Court erred in dismissing Mr. Spinelli's amended complaint under Rule 12b-6 and denying his post-judgment motions for relief under Rule 59e.

[00:18:21] Speaker 02:
And Mr. Carlson, is it your view as well, given the way this has played out, that the court's decision, albeit without prejudice, to deny the claims was a final order at that point?

[00:18:37] Speaker 03:
That's correct, Your Honor.

[00:18:38] Speaker 03:
There was no indication that there would be any additional action.

[00:18:42] Speaker 03:
All the claims were out of court, and there was no specific request for leave in the judge's order to amend.

[00:18:48] Speaker 03:
So at that point, the more stringent standard under Rule 59E kicked in, which gives the court the most discretion in denying an amended complaint.

[00:18:59] Speaker 02:
And not just amended complaint, but the point being that you accept the premise that when the court issued that order denying the claims on the motion to dismiss, that it put the plaintiff out of court, which is our language.

[00:19:15] Speaker 02:
And at that point, if they were going to get any relief at all, it was going to be through a 59E, right?

[00:19:21] Speaker 03:
Yes, Your Honor.

[00:19:22] Speaker 02:
OK, thank you.

[00:19:25] Speaker 03:
Your Honor, I'd like to start with the disability discrimination claim.

[00:19:29] Speaker 03:
The district court properly held the amended complaint did not plausibly allege the definition of a disability because Mr. Spinelli did not identify any major life activity that was substantially limited by his medical condition.

[00:19:44] Speaker 03:
Now, Section 28 of the New Mexico Human Rights Act defines a disability not just as a physical or a mental impairment, but one that substantially limits one or more major life activities.

[00:19:56] Speaker 03:
And as this court already alluded to, the court is limited to reviewing only the allegations in the complaint.

[00:20:03] Speaker 03:
And the only allegations in plaintiff's amended complaint on this issue were contained in paragraphs 28 to 31, where Mr. Spinelli simply alleges that he had a permanent nerve condition.

[00:20:15] Speaker 03:
from a prior vaccine reaction, and he received a doctor's advice that should he take the COVID-19 vaccine, that could put him at higher risk to exacerbate his existing health condition.

[00:20:29] Speaker 03:
There are no other factual allegations in the four corners of the amended complaint to show how his permanent nerve condition substantially limited any major life activity.

[00:20:40] Speaker 03:
And I like to direct the court's attention specifically to paragraph 64 of the amended complaint, which is page 33 of the appendix.

[00:20:50] Speaker 03:
In that paragraph, Mr. Spinelli specifically alleges, if, and I quote, if vaccination presents a real risk of the condition becoming serious and exacerbated, then plaintiff has a serious medical condition for purposes of the New Mexico Human Rights Act, end quote.

[00:21:10] Speaker 03:
So his own allegations in the humanitarian complaint acknowledge he presently doesn't meet the definition of a disability.

[00:21:18] Speaker 03:
And I'd also like to direct the court to the Hughes versus Terminic's case that we cited in our brief that's in the Fifth Circuit, that is also in the COVID-19 context where the court upheld the dismissal

[00:21:32] Speaker 03:
of a complaint under Rule 12b6 because the plaintiff similarly based his disability on a potential future reaction by taking the COVID-19 vaccine to an existing health condition and the court upheld the dismissal of the complaint.

[00:21:49] Speaker 03:
The ADA doesn't define disabilities under contingencies.

[00:21:54] Speaker 03:
So here is the court correctly recognized plaintiff did not plead any facts to show that a serious medical condition falls within a specific definition of a disability because he did not identify any major life activity limited by that condition.

[00:22:11] Speaker 03:
But even if his court were to assume that Mr. Spinelli did, in fact, plausibly allege the definition of a disability, there are still independent basis to dismiss the disability discrimination claim in count one.

[00:22:25] Speaker 03:
The first independent reason is that Mr. Spinelli did not see the final required element of a disability discrimination claim, and that is to show that Coherence terminated him

[00:22:36] Speaker 03:
because of the disability as opposed to complying or failure to comply with Coherence's mandatory vaccination policy.

[00:22:46] Speaker 03:
So put simply on that point, whether Mr. Spinelli had a disability or whether he didn't, he would have been terminated for not complying with Coherence's mandatory vaccination policy.

[00:22:58] Speaker 03:
And that is precisely what the District Court of New Mexico ruled in the Duffy versus T-Mobile case that we set in our papers.

[00:23:04] Speaker 03:
And I want to direct the court more recently to this court's decision in the Beresnack versus Arrow Electronics case.

[00:23:11] Speaker 03:
This was issued after the briefing in this case.

[00:23:16] Speaker 03:
Judge Moritz was presiding on the panel and the 10th Circuit affirmed in that case dismissal of the ADA retaliation claim because the plaintiff's retaliation arose from his failure to comply with the company-wide COVID-19 vaccination policy.

[00:23:31] Speaker 02:
And reminding, Mr. Carlson, did you submit a 28-J letter on the Beresnack case or not?

[00:23:37] Speaker 02:
We did not, Your Honor.

[00:23:38] Speaker 02:
And just so that we have a complete record, if you would, that would be helpful.

[00:23:43] Speaker 03:
Sure, Your Honor.

[00:23:44] Speaker 03:
And that is case number 24-1394, August 27, 2025.

[00:23:50] Speaker 03:
OK.

[00:23:55] Speaker 03:
So here, as in the Beresnack and the Duffy case, the missing element is causation.

[00:24:00] Speaker 03:
The complaint establishes that determination stemmed from noncompliance with a company-wide policy, not because of his disability.

[00:24:08] Speaker 03:
And it's also significant that there's no allegations in the amended complaint that Coherence had any knowledge whatsoever of his medical condition at any time prior to implementing the COVID-19 vaccination policy.

[00:24:22] Speaker 03:
There is also allegations in the amended complaint where Mr. Spinelli specifically alleges that other employees who were not disabled and didn't take the vaccine were likewise terminated.

[00:24:34] Speaker 03:
And that's in paragraphs 18 and 41 of the amended complaint.

[00:24:38] Speaker 03:
So even if this court were to assume that Mr. Spinelli did establish that threshold test of a disability, it still fails to establish the required causal link.

[00:24:50] Speaker 03:
And the second independent basis for dismissal of count one, the disability discrimination claim is that Mr. Spinelli did not show that he is a qualified individual with a disability because he was someone who could perform the essential functions of in-person work with or without a reasonable accommodation.

[00:25:11] Speaker 03:
And the amended complaint itself establishes he couldn't.

[00:25:15] Speaker 03:
The amended complaint acknowledges that coherence had a policy to require at least 60%

[00:25:20] Speaker 03:
of interactions with customers to be in person, Mr. Spinelli refused to comply with that requirement.

[00:25:29] Speaker 03:
And because of that, he refused to comply with the with the policy requiring in-person attendance.

[00:25:35] Speaker 02:
And I also want to point out all I thought almost all of Mr. Spinelli's accounts, he was managing remotely.

[00:25:42] Speaker 02:
In other words, there were only two is my recollection that he wasn't managing remotely.

[00:25:47] Speaker 02:
And so what

[00:25:49] Speaker 02:
I mean, how does that policy square with that fact?

[00:25:52] Speaker 02:
I mean, this is right up until the end, it's my understanding.

[00:25:55] Speaker 02:
I know that was the situation in COVID, understandably so, but even after COVID, wasn't that what he was doing?

[00:26:05] Speaker 03:
Your Honor, even accepting that allegation as true, I know that's in this complaint, but it is irrelevant for purposes of Cuyahiris' business judgment to restore those essential functions and begin the phase in return.

[00:26:18] Speaker 03:
Employers are allowed to begin to prepare to return to the office.

[00:26:21] Speaker 03:
And that is why it is instituted a phase to return to work policy.

[00:26:30] Speaker 03:
And I want to direct the court.

[00:26:31] Speaker 04:
Could you briefly address the public policy dismissal of the state law claim, the public policy claim?

[00:26:39] Speaker 04:
No, in the briefing, repellent discusses the fact that there's

[00:26:48] Speaker 04:
under the NMHRA and New Mexico Human Rights Act has both contained within it a right to be free from a lawful discrimination, retaliation, as well as a remedy beyond just administrative report proceedings.

[00:27:06] Speaker 04:
And the Supreme Court of New Mexico has held that that includes a remedy for suing for common law claims, retaliation type claims such as this one.

[00:27:17] Speaker 04:
So why

[00:27:18] Speaker 04:
wasn't that sufficient to stay a public policy.

[00:27:24] Speaker 03:
Well, Your Honor, first, his public policy retaliation claim fails just like a statutory retaliation claim because there's no nexus.

[00:27:32] Speaker 03:
There's no causation between the protected activity, whether that is, let's just assume under the New Mexico Human Rights Act, or whether it was due to his other source of public policy in protecting his bodily integrity from taking the vaccine.

[00:27:46] Speaker 03:
No matter how you slice it under either theory,

[00:27:49] Speaker 03:
it fails for lack of causation.

[00:27:51] Speaker 03:
And again, I would direct the court to the Beresnack versus Arrow electronic case, as well as a host of other courts around the country, the Sharikov Second Circuit case, as well as the Georgianson Fourth Circuit case and the West Ninth Circuit case, who all say when the protected activity comes after the announcement of the COVID-19 vaccination policy, there simply can't be any retaliation at the 12b6 stage.

[00:28:15] Speaker 03:
But to answer your other question, Your Honor, he didn't argue the New Mexico Human Rights Act was the source of public policy.

[00:28:24] Speaker 03:
That's acknowledged in page 35 of his own affirmative brief.

[00:28:28] Speaker 03:
But it simply fails for those same reason that the other statutory claims fail.

[00:28:34] Speaker 04:
This report dismissed it just because he didn't state a public policy.

[00:28:42] Speaker 03:
Yes, Your Honor, you could look beyond that under this court's de novo review for lack of causation.

[00:28:54] Speaker 03:
But the judge's point on that issue was also correct in that refusing to take the vaccine is a personal choice.

[00:29:02] Speaker 03:
It doesn't implicate

[00:29:04] Speaker 03:
The public coherently told Mr. Spinelli, like all other at-will employees, this is a new condition of your employment to continue working here.

[00:29:12] Speaker 03:
You have the option.

[00:29:13] Speaker 03:
If you can't comply with this requirement, you're free to work elsewhere.

[00:29:17] Speaker 03:
That's a personal choice.

[00:29:18] Speaker 03:
It's not anything that implicates the public policy.

[00:29:25] Speaker 03:
And with my remaining time, Your Honor, I'd like to address the post-judgment motions.

[00:29:30] Speaker 03:
This court acted well within its discretion and first denied Mr. Spinelli's Rule 59E request to reopen the case, as this court has repeatedly recognized reversal under Rule 59 is an extraordinary remedy.

[00:29:47] Speaker 03:
It's limited to instances where there is clear error or whether the district court exceeded bounds of all permissible choice.

[00:29:55] Speaker 03:
And Rule 59E is not a chance to re-argue matters already before the district court.

[00:29:59] Speaker 03:
That's exactly what Mr. Spinelli attempted to do.

[00:30:02] Speaker 03:
And he couldn't satisfy either of the three criteria to reopen the case under Rule 59E.

[00:30:09] Speaker 03:
He presented no intervening change of law.

[00:30:12] Speaker 03:
He didn't show any clear error.

[00:30:14] Speaker 03:
And he didn't show any new evidence that was previously unavailable at the time he first filed his complaint or his

[00:30:23] Speaker 03:
amended complaint.

[00:30:24] Speaker 03:
So under this court's deferential standard, there's no basis to disturb the district court's decision to deny the Rule 59 motion.

[00:30:34] Speaker 03:
And the district court also properly denied Mr. Spinelli's request to amend under Rule 59E.

[00:30:40] Speaker 03:
I know there was discussion with appellants' argument on this issue, but I think

[00:30:47] Speaker 03:
We're all in agreement that Rule 59E is the standard because Mr. Spinelli did not make any request to amend the complaint at any time prior to dismissal other than his already amended complaint that he did as a right under Rule 15.

[00:31:04] Speaker 03:
And because we're now living with that standard, Rule 59E, the district court is entitled to much broader discretion.

[00:31:13] Speaker 03:
Again, Mr. Spinelli must first reopen the case and meet one of those three criteria.

[00:31:17] Speaker 03:
he did not, and by not clearing that hurdle, this court not even decide whether or not the district court's decision in denying leave was correct.

[00:31:30] Speaker 03:
But even if, again, we do consider the district court's decision to deny leave under the traditional de novo analysis,

[00:31:41] Speaker 03:
in accepting as true the submission that he did in support of that motion, accepting everything as true, he still can't plausibly allege a disability under the New Mexico Human Rights Act.

[00:31:53] Speaker 03:
He still can't plausibly allege a claim of retaliation under the New Mexico Human Rights Act or at common law.

[00:31:59] Speaker 03:
So for those reasons, we respectfully ask that the court affirm the dismissal of Mr. Spinelli's amended complaint.

[00:32:13] Speaker 03:
And I can finish my argument unless the court has any other questions.

[00:32:16] Speaker 02:
I don't have any questions.

[00:32:19] Speaker 02:
Colleagues?

[00:32:19] Speaker 02:
Okay, hearing none.

[00:32:21] Speaker 02:
The case is submitted.

[00:32:23] Speaker 02:
Thank you for your arguments.

[00:32:24] Speaker 04:
Thank you.