[00:00:01] Speaker 00: Case number 14-5045, Masoud Bamdad, Appellant versus Drug Enforcement Agency and its agent at L. Ms. [00:00:10] Speaker 00: Shekertoff for the appellant, Mr. Burch for the appellee. [00:00:25] Speaker 04: Ms. [00:00:25] Speaker 04: Sheketoff as a former law clerk of this court and an example for everybody who I just spoke to. [00:00:30] Speaker 04: Nice to see you. [00:00:32] Speaker 02: Nice to see you. [00:00:35] Speaker 02: May it please the court, Julia Fong Sheketoff as appointed amicus curiae for appellant. [00:00:40] Speaker 02: The habeas-channeling rule of Heck v. Humphrey bars only those prisoner suits where what the plaintiff must establish in order to prevail in his civil claim would demonstrate the invalidity of his conviction. [00:00:52] Speaker 02: As the Supreme Court specifically said in footnote seven of Heck, because of the many exceptions to the exclusionary rule and because of harmless error analysis, a suit challenging an unreasonable search or a coercive interrogation does not require the plaintiff to prove his conviction is invalid and therefore it may proceed. [00:01:10] Speaker 02: The DEA makes two arguments why this suit isn't governed by that general rule, but both are wrong. [00:01:19] Speaker 02: First, the language and application of the HECS standard make clear that the proper approach focuses on what the plaintiff must prove in order to prevail in his civil suit and whether that proof alone is in conflict with the criminal conviction. [00:01:34] Speaker 02: Second, although some of the relief that Mr. Baumdott seeks may be barred, Mr. Baumdott also seeks multiple forms of relief that are proper here, including compensatory damages for injuries stemming directly from the search and interrogation, as well as nominal damages, punitive damages, and declaratory relief. [00:01:54] Speaker 04: Can I ask you, I understand the point about HAC. [00:01:58] Speaker 04: What happens if [00:02:02] Speaker 04: A plaintiff decides, files for habeas, decides that he really would prefer to have the decision made by some other three-judge court in another circuit and brings a 1983 case on the Fourth Amendment issue or on the Fifth Amendment issue in that case as a matter of forum shopping. [00:02:21] Speaker 04: Doesn't like the panel that he drew, quickly files in another and tries to get a result there. [00:02:28] Speaker 04: Would that decision be preclusive? [00:02:31] Speaker 02: My understanding is that a decision in a 1983 Bivens action would not be preclusive in a habeas action because the parties are different and not in privity with each other. [00:02:41] Speaker 04: Because the government isn't the defendant in the Bivens suit. [00:02:44] Speaker 02: Correct. [00:02:48] Speaker 02: The language and the application of the HECS standard. [00:02:53] Speaker 03: Can I say something about Ms. [00:02:54] Speaker 03: Stone versus Powell, which held that [00:02:59] Speaker 03: Exclusionary rule claims simply can't be brought, at least in state habeas at all. [00:03:05] Speaker 03: Does that mean then, and I believe it applies to federal habeas review as well, does that mean then that just as a categorical matter, these types of claims can never [00:03:20] Speaker 03: they fall within the heck of R, because they can't be brought there, they necessarily can be brought here, even if the nature of the arguments goes right to, you know, the key or the only evidence in the case. [00:03:31] Speaker 02: I think one could certainly make that argument, and indeed I think some of the justices of the Supreme Court have made that argument. [00:03:37] Speaker 02: I think it certainly goes to show that it's unlikely that this kind of case is within the core of habeas, since this kind of claim as a general rule can't even be brought in habeas. [00:03:47] Speaker 02: But our argument is, even if a Fourth Amendment claim could be brought in habeas, for example, because the litigant did not have a full and fair opportunity to bring [00:03:56] Speaker 02: to litigate the case in the criminal proceedings, because of the presence of the additional questions of whether harmless error analysis applies, and whether there are exceptions to the exclusionary rule. [00:04:06] Speaker 03: Right, there's no dispute here that he had a full and fair opportunity to raise this fourth amendment claim in his trial? [00:04:15] Speaker 03: That's correct, that. [00:04:17] Speaker 03: Right, so this would then be covered by the Stone v. Palbar. [00:04:21] Speaker 03: It's interesting, because you are here for a categorical approach, and this seems to be the biggest [00:04:25] Speaker 03: category one could have is falling outside of HEC. [00:04:29] Speaker 02: I certainly think that would be a reasonable ground to conclude that these kinds of claims cannot be barred under HEC. [00:04:37] Speaker 02: In addition, the language and application of the HEC standard show that the proper approach focuses on what the plaintiff must prove. [00:04:45] Speaker 02: HEC stressed the word necessarily, and the Supreme Court in Nelson, again, emphasized that the court stressed necessarily for a reason. [00:04:54] Speaker 02: And in footnote seven of HEC, the court demonstrates what it means to necessarily imply the invalidity of a conviction. [00:05:01] Speaker 02: It said that because of harmless error analysis and because of exceptions to the exclusionary rule, a claim for an unreasonable search categorically would not necessarily imply the invalidity of a conviction. [00:05:13] Speaker 03: The fact applies categorically to a fourth or even fifth amendment claims, a fourth amendment excessive force type claim. [00:05:23] Speaker 03: How do we know when the statute of limitations starts running? [00:05:26] Speaker 03: Does that start running categorically as well, uniformly to everybody that has the Fourth Amendment claim? [00:05:31] Speaker 02: I believe that in Wallis v. Cato, the Supreme Court held that, yes, the statute of limitations for an unreasonable search claim would begin at the moment of the unreasonable search, because at that moment, the plaintiff has suffered injury. [00:05:46] Speaker 03: So is he within the statute of limitations? [00:05:50] Speaker 02: I don't believe that that argument has ever been raised before. [00:05:53] Speaker 02: And so if he was not, that argument has been waived. [00:06:00] Speaker 04: Well, we haven't gotten to the state of waiver yet. [00:06:03] Speaker 02: Correct. [00:06:03] Speaker 02: But that should not be a grounded decision here. [00:06:05] Speaker 02: That was not a decision below. [00:06:07] Speaker 02: That hasn't been briefed here. [00:06:08] Speaker 02: And I'm not aware of whether or not there could be a valid statute of limitations argument here. [00:06:16] Speaker 01: What is your position on whether HEC is jurisdictional? [00:06:19] Speaker 02: My position is that it is not a jurisdictional argument. [00:06:22] Speaker 02: The court has never, or sorry, it is not a jurisdictional ground, but the court has never said that it is. [00:06:29] Speaker 02: And it's been treated as a defense, something that the defendant must prove and raise. [00:06:36] Speaker 01: We've got an old case from the 1990s in which we did hold it was jurisdictional. [00:06:43] Speaker 02: Well, if HEC is in fact jurisdictional, then that's a further reason why the court should first address that question and, if necessary, remand to the district court to decide the merits question and the preclusion questions in the first set. [00:06:55] Speaker 04: So I thought HEC decided this question. [00:06:57] Speaker 04: HEC says, we do not engraft an exhaustion requirement upon section 1983, but rather deny the existence of a cause of action. [00:07:06] Speaker 04: Isn't that it? [00:07:07] Speaker 04: And that resolved the issue. [00:07:08] Speaker 04: It's a cause of action question, not a jurisdiction question. [00:07:11] Speaker 02: That is my understanding. [00:07:13] Speaker 01: And that's what the lower court did, dismissed it. [00:07:17] Speaker 01: That's what Judge Walton did, dismissed it on failure to state a claim. [00:07:21] Speaker 02: I'm sorry, I can't hear you. [00:07:23] Speaker 01: Sorry. [00:07:23] Speaker 01: Judge Walton dismissed it on failure to state a claim. [00:07:26] Speaker 01: I'm just simply pointing out we do have this old case that we have held as jurisdictional. [00:07:33] Speaker 02: Yes. [00:07:34] Speaker 02: The judge below dismissed it for failure to state a claim. [00:07:39] Speaker 03: Do you have, what about the question on the merits that you did supplemental briefing on? [00:07:47] Speaker 02: Mr. Baumdott has colorable arguments why his case is distinguishable from Supreme Court precedent that suggests as a general rule victims of undercover sting operations may not have a, or don't have a claim for an unreasonable search or coercive interrogation. [00:08:02] Speaker 02: Mr. Vomdad here had a doctor-patient relationship with the undercover officers, and by virtue of that relationship, he had special obligations to them, including the obligation to put their interests above his own, to continue to treat them, to interact with them, to volunteer information to them, and to answer their questions. [00:08:20] Speaker 04: Did he have an obligation to unlawfully prescribe oxycodone? [00:08:23] Speaker 02: He did not, but simply the fact that he may not have followed his ethical obligations in one particular way does not mean that he did not feel bound by his ethical obligations in other ways. [00:08:36] Speaker 02: And the fact that he had these additional obligations that distinguish him from the average citizen who is unencumbered in his choices as to whether... Is there any case that supports this proposition? [00:08:47] Speaker 02: I have not found any binding precedent that supports this, except the United States Supreme Court and Jones, five justices, together agree that the assumption of the risk rationale should not be blindly or is not appropriate in all contexts. [00:09:06] Speaker 04: That's a GPS case, right? [00:09:07] Speaker 04: That's correct. [00:09:08] Speaker 04: What I meant was, is there any case on a doctor-patient relationship that would support your proposition? [00:09:14] Speaker 02: I have not found any such case. [00:09:16] Speaker 04: So you know that the Ninth Circuit is ruled precisely to the opposite and that that case was cited in his habeas case? [00:09:23] Speaker 02: That's correct. [00:09:23] Speaker 02: The Ninth Circuit has gone the other way, but I still believe that there are colorable grounds to distinguish Mr. Bondad's case. [00:09:29] Speaker 02: The Ninth Circuit's opinion does not bind this court here, and there's no reason that the court needs to rush into that question rather than address the issue in the normal course, if and when the district court reaches that question. [00:09:40] Speaker 02: on appeal in the future. [00:09:42] Speaker 02: The question that's properly before the court right now that was decided below that's been briefed in the normal course here is the HEC question. [00:09:49] Speaker 04: Do you not think it's, since the statute obligates us to dismiss frivolous cases, aren't we bound by the statute to address that question? [00:09:57] Speaker 02: Respectfully, I don't think Mr. Bomdad's claims are frivolous. [00:10:01] Speaker 02: Because of his unique situation, his unique professional obligations, and because of Jones and the Supreme Court's admonition, or five justices of the Supreme Court's expression that the assumption of the risk rationale is not always appropriate, I think those things together provide ground. [00:10:18] Speaker 04: Do you think Jones overrules Perkins or White? [00:10:20] Speaker 02: I don't think it overrules those cases. [00:10:22] Speaker 02: I think it merely suggests that those cases, the rationale of those cases should not be extended to new context where the rationale is not appropriate. [00:10:30] Speaker 02: And here the rationale is not appropriate. [00:10:32] Speaker 03: This case, am I correct, this case involved both video and audio recordings? [00:10:37] Speaker 02: That's according to the allegations of the complaint, which the court must accept as true at this stage. [00:10:41] Speaker 03: And white was only audio recordings. [00:10:43] Speaker 02: That's my understanding. [00:10:45] Speaker 02: I believe in white it was actually just a radio transmission of audio. [00:10:49] Speaker 03: There were no video images that were covered. [00:10:53] Speaker 03: Is that plain to the Jones analysis? [00:10:56] Speaker 03: Are videos more intrusive than audios? [00:10:58] Speaker 02: I certainly think there's a strong argument that yes, Jones makes clear that the mere quantity of information can change the assumption of risk rationale and can make it inappropriate to apply that rationale. [00:11:09] Speaker 04: That's the quantity of information about the person, but you think if it was color TV versus black and white TV it would make a difference? [00:11:16] Speaker 02: I think it would be hard to say, but that's why the Court shouldn't wade into those tricky questions in this posture. [00:11:22] Speaker 04: Does this one really seem like a tricky question to you, the difference between an audio recording and a video recording? [00:11:29] Speaker 02: I think it certainly provides grounds under the five justices' opinions in Jones to at least distinguish this case from White. [00:11:39] Speaker 03: It would be an expansion of White. [00:11:40] Speaker 02: Yes, I think it would absolutely be an expansion of White, and particularly given Mr. Banda's unique obligations to his patients. [00:11:51] Speaker 03: Do you have a view on what, if you were to prevail, what would be appropriate here? [00:12:00] Speaker 03: Would you go back and then would simply involve service on the United States government and then they could bring a 12b6? [00:12:07] Speaker 03: Or would 12b6 be over and done with? [00:12:10] Speaker 03: Since you had a non-adversarial 12b6 and that review has been here and the government has briefed here and you would go back and [00:12:16] Speaker 03: Would that open the door to getting all the way to summary judgment and discovery, or what happens in this procedural posture? [00:12:21] Speaker 02: I believe a proper, if the court decided the HEC issue in our favor and then remanded, I believe at that point the district court could entertain 12b6 motions. [00:12:30] Speaker 02: The court dismissed here, so I don't think that would preclude motions to dismiss. [00:12:36] Speaker 02: Again, raising the merits issue in the normal course if and when the government chose to do so. [00:12:41] Speaker 04: Are you familiar with the Wakumawa case that the Ninth Circuit decided in March of 2013? [00:12:47] Speaker 02: No. [00:12:47] Speaker 04: So in that case, the court expressly rejects the distinction between audiovisual and audio and visual, including Post-Jones. [00:12:58] Speaker 04: Again, this is the same circuit in which is habeas is being held. [00:13:01] Speaker 04: Does that make a difference? [00:13:03] Speaker 02: No, I think the court should apply the law of this circuit and the court is not bound. [00:13:09] Speaker 02: Again, to my understanding, no decision here would be preclusive and a future habeas action. [00:13:15] Speaker 02: And under binding precedent of this court, nothing forecloses or nothing squarely demonstrates that Mr. Bandad is bound or assumed the risk given these particular facts in this case. [00:13:32] Speaker 04: I have a question. [00:13:33] Speaker 04: Okay, thank you. [00:13:35] Speaker 04: Will you hear from the government? [00:13:40] Speaker 04: And to be completely even-handed, it's nice to see you, Mr. Burchals. [00:13:44] Speaker 04: Thank you, Your Honor. [00:13:45] Speaker 04: It's nice to be here. [00:13:48] Speaker 05: May I please support Alan Burch on behalf of the Drug Enforcement Administration. [00:13:54] Speaker 05: I'll take the merits briefly first before moving on to the other two issues. [00:13:59] Speaker 05: None of the cases that either party has uncovered has specifically addressed the argument that Mr. Banda would make about the invasion of a medical office, but there are numerous cases of doctors being convicted on the basis of [00:14:13] Speaker 05: undercover agents posing as patients. [00:14:17] Speaker 03: And so I would suggest that the... Does that involve video surveillance? [00:14:20] Speaker 05: I don't know if any of them involve video. [00:14:21] Speaker 05: I know that most of them are involved, at least audio. [00:14:26] Speaker 05: I don't know if any of the ones I cited also involve video. [00:14:30] Speaker 03: But there's been numerous opportunities... Is that the entire circuit have both recognized that video surveillance is [00:14:35] Speaker 03: different than audio surveillance, and the Second Circuit called it an expansion of light, Third Circuit said it's a greater intrusion than audios, and so the question is, is this at least an open issue? [00:14:51] Speaker 05: Well, Mr. Baumdott had the opportunity to raise that in his own criminal conviction and his own appeal and did not. [00:14:57] Speaker 05: I take that as a sign, as with the other cases, that counsel determined that the argument was not colorable enough to be worth raising. [00:15:04] Speaker 03: What does that have to do with the... [00:15:07] Speaker 03: this action? [00:15:08] Speaker 03: Sorry? [00:15:09] Speaker 03: I'm sorry, he didn't raise it in his... No, I'm saying he did not raise it. [00:15:13] Speaker 05: He had the opportunity to raise the argument in his own appeal, just like the other cases. [00:15:17] Speaker 03: Are you arguing Guadalajara? [00:15:18] Speaker 03: Is that what you mean by he could have raised it there? [00:15:21] Speaker 05: No, I'm suggesting that the point to be made is that the argument is not colorable enough to even have been attempted by his attorney. [00:15:30] Speaker 03: There are an awful lot of claims that are missed in criminal cases that end up being very colorable. [00:15:36] Speaker 03: I don't know if that's a [00:15:37] Speaker 05: That's the state of the law, Your Honor, in terms of what we can glean from it. [00:15:43] Speaker 05: It may not be conclusive in that, but that's what I think is the state of the law with respect to this argument in Fourth Amendment. [00:15:55] Speaker 05: It hasn't been successfully made and there have been opportunities to have made it. [00:16:03] Speaker 03: And so that bars Bivens or 1983 action? [00:16:07] Speaker 05: This is on the merits, Your Honor. [00:16:08] Speaker 05: I'm making a comment about the strength of the merits. [00:16:13] Speaker 05: of his claim, right. [00:16:14] Speaker 03: I don't need to suggest it. [00:16:16] Speaker 03: My only question for you is whether it's different than Illinois versus White when it's video rather than audio. [00:16:23] Speaker 05: Not materially in terms of the strength of his fourth amendment claim, no, you're on. [00:16:26] Speaker 03: but it's an expansion of white. [00:16:29] Speaker 05: Not one that would lead to a different result in the government's view. [00:16:36] Speaker 03: Does the government think there's any greater invasion of privacy involved in videos than audio or radio transmissions in white? [00:16:44] Speaker 05: Conceivably there could be, yes. [00:16:46] Speaker 03: Are there or not? [00:16:47] Speaker 03: Would you have someone listening? [00:16:48] Speaker 05: I think it would depend on the nature of the video and the audio. [00:16:51] Speaker 03: Well, the whole rationale of white was that, look, [00:16:53] Speaker 03: You invite people in, they could take notes while you're talking and go out and repeat it. [00:16:58] Speaker 03: But when it comes to video, people actually aren't capable of recording everything that can be seen on a video and then recreating it unless they're really good sketch artists as soon as they go outside. [00:17:10] Speaker 03: So you are actually capturing more than a person would expect they're capturing by inviting someone into their house. [00:17:16] Speaker 03: So that could be the argument. [00:17:18] Speaker 05: As a general matter, that's undoubtedly correct. [00:17:22] Speaker 05: But on any given case, it would certainly depend on the quality and the scope of the respective recordings. [00:17:30] Speaker 05: There's not a lot to be, I mean, I don't think there's much more to be said about the state of the case law with respect to doctors' offices in particular. [00:17:36] Speaker 05: That's the only point I'm trying to make. [00:17:38] Speaker 05: And to the extent that [00:17:40] Speaker 05: You know, there certainly isn't anything supporting the plaintiff's position that this would make a material difference and that it should, that the case is in fact callable on the merits. [00:17:50] Speaker 04: Well, there is case law on the video-audio distinction, and both the Fifth and the Second Circuit considered and rejected it, saying there's no distinction between the two for purposes of the Constitution. [00:18:01] Speaker 04: And there's the Ninth Circuit that's done the same. [00:18:04] Speaker 04: So there are at least three circuits. [00:18:06] Speaker 04: As far as I know, the only ones that have considered it have all rejected that there's any difference between the two. [00:18:11] Speaker 05: That would certainly support the government's position. [00:18:13] Speaker 05: Thank you, Your Honor. [00:18:14] Speaker 05: With respect to the HEC question, the footnote seven of HEC itself seems to attract a lot of attention, and I would submit that there are two reasons why this strongly supports the government. [00:18:27] Speaker 05: The first is the last sentence sets forth that the plaintiff needs to demonstrate a separate pathway of causation other than the harm of being convicted. [00:18:37] Speaker 03: What do you do with the fact that Stone versus Powell says these claims categorically can't be raised in habeas? [00:18:43] Speaker 05: I think that at that level of generality, that's an overstatement of the language. [00:18:49] Speaker 03: Fourth Amendment exclusionary rule cases cannot be brought as a categorical matter in Haiti, so how could they ever implicate the heck rule? [00:19:04] Speaker 05: I'm not familiar with that whole thing, Your Honor. [00:19:08] Speaker 05: It would certainly contradict the language in HEC itself. [00:19:12] Speaker 05: HEC was a Fourth Amendment case, and the facts in HEC I think are very illustrative because in HEC the claim was that evidence had been destroyed and that evidence had been, exculpatory evidence had been destroyed, and that the [00:19:31] Speaker 05: voice identification procedure used at trial was defective. [00:19:37] Speaker 05: And both of those claims are subject to the same sort of argument that Dr. Baumdott makes here that while it's possible I could have been convicted on the basis of other evidence. [00:19:47] Speaker 05: And yet, in HEC, there was no remand for further consideration of these principles that were mentioned, Fourth Amendment principles mentioned in the footnote seven about independent discovery or independent source and inevitable discovery. [00:20:02] Speaker 05: And that suggests that it further supports the government's reading that the HEC issue is, as the Chief Judge pointed out, a question of whether there's a cause of action. [00:20:12] Speaker 05: This is plaintiff's responsibility to establish a cause of action. [00:20:15] Speaker 05: It's not an affirmative defense. [00:20:16] Speaker 05: It's not something that the government is required to prove up on facts. [00:20:21] Speaker 05: This is a defect ultimately in his pleading. [00:20:24] Speaker 05: He had an opportunity to correct the defect after the dismissal. [00:20:28] Speaker 03: People have to show case by case that it doesn't affect their, it wouldn't impact the validity of their conviction. [00:20:38] Speaker 03: Would that mean in the DNA cases after the cluster case that [00:20:45] Speaker 03: The more innocent you are, the less likely you're going to be able to bring a DNA claim? [00:20:50] Speaker 03: I'm sorry, I didn't catch the very first word of your question. [00:20:52] Speaker 03: So your argument is that we have to look at a case by case to see what the impact of the claim would be if on the conviction. [00:21:01] Speaker 03: So if you're challenging all the key evidence or the central evidence in a case and you're saying that should have been suppressed, that would necessarily impugn the validity of the conviction. [00:21:10] Speaker 03: That's my understanding of your position. [00:21:12] Speaker 03: not to have the categorical rules that Mr. Bond does argue. [00:21:17] Speaker 03: My question is, in the Switzer case where they said you can bring a DNA claim, a claim to seek DNA, my concern is that if we had a case-by-case analysis that in those cases where the DNA would show innocence, where the evidence was thin and DNA could make all the difference, [00:21:40] Speaker 03: the more innocent you are, the less likely you are to be able to bring the claim. [00:21:44] Speaker 05: Your Honor, I think the answer is that it would be resolved by an application of recognizing that the burden is, for lack of a better word, is on the plaintiff to establish the facts together to show that the civil action should be allowed to go forward. [00:21:57] Speaker 03: Right, you say, I had said they had virtually no proof, just enough. [00:22:00] Speaker 03: Apparently it got past the jury. [00:22:03] Speaker 03: But I'd like to have the DNA evidence. [00:22:05] Speaker 03: You know, you don't get it. [00:22:07] Speaker 05: No, I think that it's the [00:22:13] Speaker 05: Well, in Switzerland, the connection was deemed too tenuous to undermine the conviction because the evidence that the plaintiff wanted to gather could have gone either way. [00:22:30] Speaker 05: It could have exonerated him or it could have [00:22:32] Speaker 05: ended up with further proof. [00:22:34] Speaker 05: And so the logical connection there was severed and that was enough to allow it to go forward. [00:22:40] Speaker 05: But as demonstrated, for example, in the Nelson case, where the prisoner actually pled facts that would show the independent path, that would show that this is severable. [00:22:51] Speaker 05: You know, in this case, in Bob Dunn's case, he has not proven any facts that would give you a separate path to the causation to a different harm. [00:22:59] Speaker 04: What about Nelson makes you think that that's necessary in the Fourth Amendment era? [00:23:06] Speaker 04: Nelson says even so, we're careful in heck. [00:23:10] Speaker 04: to stress the importance of the term necessarily. [00:23:12] Speaker 04: For instance, we acknowledge that an inmate could bring a challenge to the lawfulness of a search pursuant to 1983 in the first instance, even if the search revealed evidence used to convict the inmate at trial, because success on the merits would not necessarily imply that the defendant's conviction was unlawful. [00:23:31] Speaker 04: That sounds like quite categorical. [00:23:33] Speaker 04: That sounds like they're saying that in a search case, you can do it because it's not necessarily [00:23:40] Speaker 05: The category of reading in Nelson is far beyond what was necessary in Nelson to decide Nelson. [00:23:48] Speaker 04: Maybe so, but we've said that unlike our own dicta, dicta from the Supreme Court governs us. [00:23:54] Speaker 05: But that passage quotes and relies on the footnote seven in heck, and I think that that's where you need to go back to understand what they're talking about. [00:24:02] Speaker 05: In particular, [00:24:03] Speaker 05: the language at the very end of that very footnote that puts the burden on the plaintiff to show a separate pathway to causation to a separate injury, an injury apart from the conviction. [00:24:13] Speaker 04: That's on the, isn't that, that part is about the damages question, that is, the money question and what it is they're complaining about, isn't it? [00:24:24] Speaker 04: No, Your Honor, it's about the injury. [00:24:26] Speaker 04: Which injury? [00:24:27] Speaker 04: He has to have a separate injury. [00:24:30] Speaker 04: Correct. [00:24:31] Speaker 04: And here they have a separate injury. [00:24:33] Speaker 05: No, they have not put a separate injury here. [00:24:35] Speaker 05: Why do you say that? [00:24:37] Speaker 05: Because that's the fair reading of his complaint. [00:24:39] Speaker 05: The complaint ties all of the harm to the extent that it declares the harm to be the harm from the agents showing up illegally at his office. [00:24:47] Speaker 04: i'm taking a look at that is concerned about his conviction not the search of the office uh... uh... [00:24:56] Speaker 04: I'll put it this way. [00:24:58] Speaker 04: Imagine that there was an unlawful search and the person was never convicted, right? [00:25:03] Speaker 04: You wouldn't have a habeas claim. [00:25:05] Speaker 04: Impossible, right? [00:25:06] Speaker 04: That's the business case, exactly. [00:25:10] Speaker 04: That's exactly right. [00:25:11] Speaker 04: So what they're talking about, in heck, is a situation. [00:25:13] Speaker 04: You can't claim the injury of actually being convicted. [00:25:18] Speaker 04: But you can claim everything up to the conviction and things that are unrelated to the time you have to spend in jail. [00:25:27] Speaker 04: Right. [00:25:27] Speaker 05: But he has no factual basis for any of that here. [00:25:30] Speaker 05: He doesn't have, for example, allegations that the DEA agents in the waiting room told other patients that this guy is a crook and a quack and he's going to go to jail. [00:25:40] Speaker 05: And that would be prior to his arrest. [00:25:43] Speaker 04: I get it. [00:25:43] Speaker 04: But now we're at the complaint stage. [00:25:46] Speaker 04: How much has to be pled in a [00:25:48] Speaker 04: pro se complaint in order to get that point seems we're supposed to give considerable latitude here, liberally read, is that right? [00:25:59] Speaker 04: It's a pro se complaint, he wasn't able to elaborate on the complaint, he wasn't able to say exactly what the injury was, none of that's necessary in a complaint. [00:26:07] Speaker 05: Yes and no, Your Honor. [00:26:11] Speaker 05: He had an opportunity to seek leave to amend even after the dismissal. [00:26:15] Speaker 05: This Court's jurisprudence recognizes that, particularly in dismissals that go on ickball grounds, that your complaint was insufficient because it didn't plead enough facts. [00:26:26] Speaker 05: He indeed sought reconsideration and merely said, I don't mean to challenge my conviction, but he failed to provide any additional factual basis that would establish a separate causation. [00:26:39] Speaker 05: Once there is put into the record the notion that he's been convicted, the fact that he's been convicted and that's established, then the burden, for lack of a better word, shifts to the plaintiff to [00:26:50] Speaker 04: explain why his claim is not... There's no burden issue here at all. [00:26:56] Speaker 04: We're stuck with whatever he has on the complaint. [00:26:59] Speaker 05: It's an issue of demonstrating a cognizable cause of action. [00:27:03] Speaker 05: That is what the whole core basis of the heck line of cases is all about, is what is a cognizable cause of action. [00:27:11] Speaker 05: And so this is, as you mentioned in your questioning to the amicus, this is a question of whether he has a cause of action. [00:27:18] Speaker 05: It is a pleading issue. [00:27:21] Speaker 05: And if he's, once this is put into issue, I would suggest the procedure follows similar to the procedure for standing. [00:27:28] Speaker 05: Not that this is a jurisdictional issue. [00:27:30] Speaker 05: I agree with Judge Henderson. [00:27:31] Speaker 05: I think it's not a jurisdictional issue at all. [00:27:33] Speaker 05: But the procedure is once this is put into issue, he needs to provide facts through supplemental cleaning or evidence. [00:27:39] Speaker 05: upon which the court could find a separate causation? [00:27:41] Speaker 04: No, I'm not following. [00:27:44] Speaker 04: When the issue is what's on the face of the complaint, would anybody have to supplement the complaint? [00:27:50] Speaker 04: The whole point would be he can't supplement the complaint. [00:27:53] Speaker 05: No, he could supplement the complaint by providing additional facts to show that he has a separate pathway to causation. [00:28:00] Speaker 05: There was nothing to bar him from doing that even after dismissal. [00:28:03] Speaker 05: The case law here on ICBAL dismissals, which is parallel to what we have here, dismissal without prejudice, are, if that's the grounds, that he's allowed to seek leave to amend on the basis of a supplemental or amendable law. [00:28:20] Speaker 04: The question is whether dismissal in the first place was appropriate. [00:28:23] Speaker 04: There's no requirement to do any of the supplementation if it was inappropriate. [00:28:27] Speaker 05: Here he put into evidence, he put into his complaint that he was convicted, and he was convicted of overprescribing to DEA agents who came and posed as patients, and his claim is that they violated the Constitution by coming without his consent or a warrant. [00:28:43] Speaker 04: Right. [00:28:43] Speaker 05: Isn't that... That's sufficient. [00:28:44] Speaker 04: So, isn't it enough? [00:28:47] Speaker 04: Imagine he had not been convicted. [00:28:49] Speaker 04: It would certainly be enough to say that agents came into my house or came into my office without a warrant. [00:28:55] Speaker 04: And imagine a warrant were required. [00:28:57] Speaker 04: That would be more than enough to state a cause of action, wouldn't it? [00:29:01] Speaker 04: Yes, similar to Bivens, of course. [00:29:03] Speaker 04: All right, so here he is saying they came into his office without a warrant. [00:29:09] Speaker 04: and then eventually he's convicted. [00:29:11] Speaker 04: That sounds like two different kinds of injuries. [00:29:13] Speaker 04: That is the unlawful search. [00:29:15] Speaker 05: But he does not establish any facts that would support a separate basis for causation, either a separate injury or a separate source. [00:29:22] Speaker 05: So he has no separate cause of action other than the injury flowing from being arrested and then convicted. [00:29:32] Speaker 04: What a manic injury to have that is one in which you're going to have to prove further injury to have somebody enter your home without a warrant, unlawfully without a warrant. [00:29:44] Speaker 04: Isn't that, on its face, an injury, regardless of how much you might get for it? [00:29:49] Speaker 04: It may well be, but this was not entering his home, Your Honor. [00:29:51] Speaker 04: Well, no, but we're assuming here that it's unlawful to have entered his doctor's office. [00:29:57] Speaker 04: For purposes of his claim, we're going to assume the merits of his claim. [00:30:02] Speaker 05: That would be a standing-type analysis. [00:30:06] Speaker 04: No, but we're on that question. [00:30:12] Speaker 04: Assuming he has a claim that is a claim that survives HEC, I want to separate the HEC issue from the issue of whether or not he has a Fourth Amendment claim. [00:30:26] Speaker 04: Assume for the moment he has a Fourth Amendment claim. [00:30:28] Speaker 04: Assume we're going to consider the HEC issue first. [00:30:31] Speaker 04: Your claim here is that he hasn't shown any injury that's severable from the [00:30:38] Speaker 04: Conviction, correct? [00:30:39] Speaker 04: And that's the reason you say, heck bars this, right? [00:30:42] Speaker 04: Right. [00:30:43] Speaker 04: Right. [00:30:44] Speaker 04: And what I'm asking is, if a complaint says, you unlawfully entered my office without a warrant, isn't that a claim of injury separate from the fact that and I was convicted on the basis of that evidence? [00:31:00] Speaker 05: Well, he would need facts to show an injury. [00:31:05] Speaker 04: What facts? [00:31:06] Speaker 05: And simply saying I was harmed is a legal conclusion. [00:31:10] Speaker 05: And he would need facts something like what I said earlier, something that would show I was harmed by their harming my business, by scaring away my customers. [00:31:19] Speaker 04: That's what I'm asking you. [00:31:21] Speaker 04: Why do you need anything other than to say? [00:31:24] Speaker 04: the government unlawfully entered my office. [00:31:29] Speaker 04: And that is a per se injury for which I might only get nominal damages, but I would still get damages, separate from whether I can say it harmed my business or anything else. [00:31:42] Speaker 05: But I would still take that as factually conclusory of what the injury is. [00:31:55] Speaker 04: I guess what I'm asking is, isn't it true as a matter of law, for example, in the First Amendment area, I know for sure it is, that a violation of one's First Amendment right is a nominal injury regardless of whether you can prove any actual damages from it, right? [00:32:08] Speaker 04: And I believe the same is true of a dual research, but my guess is exactly the same is true of a Fourth Amendment violation. [00:32:15] Speaker 05: I'm not familiar with that enough to know for certain, but I doubt that it would apply in the medical office as opposed to the home. [00:32:24] Speaker 05: The privacy protections at the medical office would undoubtedly run towards the patient far more strongly than the doctor. [00:32:33] Speaker 05: Well, in that case, he wouldn't have any Fourth Amendment rights anyway. [00:32:37] Speaker 05: Well, I think that may be why on the merits, we haven't seen this argument being made. [00:32:41] Speaker 05: Well, those are two separate questions. [00:32:43] Speaker 05: Of course. [00:32:43] Speaker 05: They're not entirely logically separable. [00:32:50] Speaker 05: Further questions? [00:32:53] Speaker 05: We would ask the court to affirm. [00:32:55] Speaker 05: Thank you. [00:33:03] Speaker 04: Can I ask you to follow up on that question? [00:33:05] Speaker 04: Does the complaint state an injury from the search as separate from the conviction? [00:33:11] Speaker 04: And is it a per se injury or some other kind of injury? [00:33:18] Speaker 02: Mr. Baumdad is a pro se litigant and as such he is entitled to the liberal construction of his complaint. [00:33:24] Speaker 02: Construed in that way, his complaint does allege injury for harm stemming directly from the search and interrogation. [00:33:31] Speaker 02: The injury for, for example, emotional distress, humiliation, that is quite obviously available for a Fourth Amendment claim as Bivens itself makes clear that's the kind of injury. [00:33:40] Speaker 02: At stake in that case, as you said, Judge Garland, he requests nominal damages as well as punitive damages and declaratory relief. [00:33:48] Speaker 02: All of that relief is properly available in this Bivens action. [00:33:54] Speaker 02: Furthermore, as my opposing counsel just acknowledged, Nelson does adopt a categorical approach under perhaps. [00:34:03] Speaker 02: And that means that the proper focus is on what the plaintiff must plead in order to prevail in his civil claim and whether that alone demonstrates the validity of the conviction. [00:34:13] Speaker 02: The HEC issue is simple and especially under that concession. [00:34:19] Speaker 02: In contrast, the merits issue is quite complicated. [00:34:22] Speaker 02: As Your Honors have acknowledged, there are open questions as to whether video or audio is meaningfully distinguishable and whether a doctor's office should be treated differently from an average citizen. [00:34:37] Speaker 02: Given those difficult, complicated questions, the prudent course here is for the court to decide the HECC issue that's fully briefed, that was the issue of decision below, and then remand for the district court to address the merits in the normal court. [00:34:53] Speaker 04: Questions? [00:34:54] Speaker 04: Thank you. [00:34:55] Speaker 04: We'll take the matter under submission. [00:34:58] Speaker 04: You were appointed by the court as amicus and we're grateful for your service.