[00:00:02] Speaker 01:
Case number 15-5208, Carlos Lumiere, Esquire Appellant versus United States of America at L. Mr. Lumiere for the appellant, Mr. Frank for the appellee.

[00:00:18] Speaker 00:
Good morning.

[00:00:19] Speaker 00:
Good morning.

[00:00:20] Speaker 00:
I'm Carlos Lumiere.

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I'm the appellant on this case, and I'm appearing on my own behalf.

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Obviously, in the limited time we have, I'm not going to be able to address all of the arguments raised in the brief, so I hope it's understood that they're not being waived as a result.

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But I'd like to focus first on the statute of limitations claims, which were the basis, or the issue, which were the basis for the dismissal by the lower court of the Bivens claims, and

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In this country, at least in the context of non-contractual claims, the norm is that a cause of action accrues for statute limitation purposes when the wrongful behavior involved has been completed.

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And this court, in fact, in Page v. United States, in footnote 23, said that it was a well-settled principle that a cause of action accrues once the wrongful injury is completed.

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So the threshold issue is, what was the wrongful behavior or injury that gave rise to my Bivens claims in this case?

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Now, appellees and the lower court want to apply the rule that applies when the wrongdoing consists of initiation of a wrongful action, when somebody's claim is based on initiation.

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But that's not my situation.

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I did not bring this action based on initiation of the retaliatory litigation against me.

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I brought it based on initiation and prosecution of that case as detailed at length in the complaint.

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And that prosecution, that wrongful behavior taken as a whole, did not end until July 27, 2009, when the Comptroller ruled in my favor.

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Therefore, it's from that date that the statute of limitations should run.

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Now, appellees cite Matt V. Anderson, the 10th Circuit case, but that case is consistent with what I just said because, as is mentioned on page 37 of my initial brief, the Matta Corp itself said it was dealing with claims based solely on initiation of a wrongful action.

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In my brief, I think I cite a lot of logical reasons why in cases such as this, the statute of limitations should run once the underlying litigation has been concluded.

[00:02:44] Speaker 02:
I suppose, though, you accept the distinction between the cause of action for malicious prosecution and the cause of action you've brought.

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Is that correct?

[00:02:56] Speaker 00:
Well, I'm not suing... Well, are we speaking in terms of the statute of limitations, Your Honor?

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Okay.

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There is a rule in this country, obviously.

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The rule is that a malicious prosecution case cannot be brought until the underlying action is concluded.

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I do think it's appropriate to analogize to that, but this is a different concept that I'm talking about.

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It's a more fundamental principle, which is your statute of limitations does not accrue until the wrongful behavior has concluded.

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Or you knew or should have known of all of the elements

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of your cause of action?

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Well, I think that that applies normally.

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It's almost like a tolling concept.

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It's a concept that if for some reason when the wrongful behavior is concluded, you could not have known or did not know about all the circumstances that would make your action logical, then

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you extend the date, but I don't think it preempts the rule or the general principle remains that the statute of limitations should run from when the wrongful behavior is concluded.

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But Mr. Lumière, isn't it the case in some instances of retaliatory prosecution that the claim

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accrues as of the time of the initiation and indeed the person wants to bring the claim then rather than have to go through the litigation and wait and suffer all that additional harm.

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They'd like to maybe even bring a preliminary injunction against that action based on its retaliatory nature.

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So you're not really claiming that it doesn't, hasn't accrued as of the initiation but rather that

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it's continuing or that the statute of limitations was told?

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I'm not entirely... What I'm saying, and I agree, Your Honor, that in some cases people would wish to be able to bring the action once the retaliatory litigation is commenced.

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And all the elements are typically there at that time, all the elements of the retaliatory choice of prosecutorial target, no?

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Certainly if you are suing for initiation of the case.

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but not if you are suing the people who prosecute the case against you, not just for having initiated it, but also for the prosecution and the manner in which it was prosecuted.

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You can't possibly know that at the time that the retaliatory litigation is initiated.

[00:05:33] Speaker 04:
I would also suggest... You would have a complete count of action at the time of the initiation, right?

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I would have if I had been suing for initiation.

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I know your honor I was but I was also suing for prosecution and at the time of the initiation it was really impossible to know how this case would evolve and

[00:06:09] Speaker 04:
I think so because there are torts, there are wrongs that are committed during the prosecution of the case, as in my situation, for example.

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No, no, sir.

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No, sir.

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I'm suggesting that the litigation as a whole should be viewed as one action given cause.

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May I give you an example, sir?

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Yes, sir.

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Well, behavior that took place once the case had begun.

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have a complete action you do.

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And the perfect example was the press releases, the statements to the press that were made during the course of the litigation.

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I could not have known that at the time of the initiation of the action.

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So you can't have a complete picture of what's going to happen in this case if your action is based not just on initiation, but on the prosecution as well.

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And so how does that differ from your cause of action for malicious prosecution?

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You mean in terms of the statute of limitations, Your Honor, I think that it would make a lot of sense to apply

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for reasons that I stated in my brief, the same rule that is applied in malicious prosecution or abusive process cases.

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Frankly, for that same reason that you really can't judge what has happened fully until the case is concluded.

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Now, I'd like to go back to the issue that you raised, if I may, about initiation.

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It may be that I am bringing a case for initiation of the prosecution and trying to stop it, as you mentioned, through an injunction.

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When you can first bring a case should not necessarily determine when you can last bring a case.

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Right, and then you need either a tolling theory or a continuing violation theory, it would seem, and I think our questions are going to what your arguments might be under either or both of those headings.

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a tolling theory or a continuing violation theory?

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And I hear aspects really of both in your answers.

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I'm not sure that I'm saying either, to be honest.

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What I'm saying is that the same principle should apply here that normally applies to any non-contractual wrong under our common law.

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And that is that you wait until the action, the wrongful action or the wrongful injury has been completed before the statute of limitations starts to run.

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You really are not claiming it totally, are you?

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No, I'm not claiming a tolling.

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What would you call a tolling if this is a tolling?

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I'm not calling a tolling, Your Honor.

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It has to be a continuing, doesn't it?

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It's a question of, under the law, when does the statute of limitations begin to run?

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I'm not suggesting that the statute of limitations begin to run.

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in the in at the time the action was brought and was told.

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I'm just saying that when you're climbing a toe, no, I'm not.

[00:09:48] Speaker 04:
No, I'm not continuing.

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Are you?

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Well, I'm claiming that if you're suing somebody not just for initiation but for their behavior during the prosecution of a case, the statute of limitations should start to run when that case is completed.

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Because that's when you can see all of the behavior, assess it, and assess the damage that it has done.

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And by the way, the Page Court distinguishes this from continuing violations doctrine in the same footnote 23 that I mentioned.

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And turning to that doctrine, if I may,

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Obviously, I would like this court to, since it's here in the case, to know what to apply that doctrine.

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I think it applies in this situation.

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And I think even the lower court admitted that it fitted this situation.

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I know that the lower court found that I had waived that claim.

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I think that was abuse of discretion under the circumstances of this case.

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You were dealing with a non-final order.

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You were at the motion to dismiss stage.

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It was federal rule of civil procedure 34B and not 59E that applied, and that allows for the revision of cases.

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The action was going to continue anyway.

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The doctrine had been mentioned in our papers.

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Which doctrine are you talking about?

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The continuing violations doctrine, the second doctrine, sorry.

[00:11:12] Speaker 01:
I see your time is gone, but I just wanted to ask you to tell us a little bit about the First and Fifth Amendment claim, what the exact nature of that, of the merits of that claim is.

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Well, it was a retaliatory litigation case.

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I think it's spelled out in great detail in the complaint how outrageous this case was.

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And therefore, I think that the proper constitutional provisions that were offended were the First and the Fifth Amendment.

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Hartman v. Moore, I think, which, by the way, was issued only five months before this action was brought,

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I think establishes that those are the proper amendments that were violated by this retaliatory litigation.

[00:12:08] Speaker 02:
So it was in your complaint, did you argue this in opposition to the motion to dismiss?

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I'm sorry?

[00:12:17] Speaker 02:
Did you argue your constitutional

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exception to the exception argument in opposing the motion to dismiss.

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You mean in the context of statute limitations?

[00:12:30] Speaker 02:
No, in the context of the Federal Tort Claims Act.

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Well, the Federal Claims Act was dismissed on the discretionary basis authority.

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It was not dismissed on statute of limitations.

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I understand.

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And the question is whether or not the exception applies when the allegation is that the government has acted unconstitutionally.

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And my question is, did you spell out that argument for the district court in opposing the government's motion to dismiss your federal tort claims act?

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Yeah.

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Your Honor, I think if you read the papers, the briefs, et cetera, yes.

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The answer is yes.

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We brought up all along the constitutional issues involved.

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and how it is illogical to say that the government has a discretionary function or duty, which involves violation of a known constitutional prohibited behavior.

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And as I mentioned, in this case, there was the added factor that the Supreme Court had held only five or six months before.

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Again, it had reaffirmed that retaliatory litigation did offend the Constitution.

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So your argument to us is that the district court's rationale based on specificity is simply wrong as a matter of law.

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Well, I would say that's a question.

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Is that your argument?

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Yes.

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I would say, yes, that's one argument.

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But also, this district court did not take into account at all that the behavior of the government was transgressing a Supreme Court decision.

[00:14:19] Speaker 04:
Well, I think you're kind of conflating your 50 CA and your business.

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Under Hartman, under many authorities, the violation of your constitutional rights just arrives to a vivid end.

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But the question that we have in reference to the FTCA is whether the exception for discretionary conduct has an exception to it, where the violation of the discretionary conduct is also a constitutional right.

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And I think the answer is, yes, I don't know how one can hold that a government official, in the exercise of a discretionary function or duty, is allowed to violate the Constitution and to ignore a Supreme Court decision.

[00:15:07] Speaker 04:
That reasoning doesn't take out the exception of the FPCA.

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There's not going to be any action unless there's been an abuse of discretion.

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Now, the logic of it being a constitutional

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a violation of, or a kind of confusion abuse as opposed to some other abuse doesn't make any difference or may not make any difference.

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If there's no abuse of the discretionary, no APCA violation free, then you don't need the exception for discretionary behavior.

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So why does it matter whether the abuse of the discretion is of a constitutional nature or a statutory nature or just some other nature?

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You have to have a tort on which you can bring your claim.

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Exactly.

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Yes, sir.

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We're trying to see if there's an exception to the exception.

[00:16:01] Speaker 00:
Well, I think that, again, I don't know how you can say that a government official has discretion to ignore the Constitution or... That brings us to the fact that the discretion has been abused, which gives us the torch.

[00:16:19] Speaker 04:
That gets you into the FTCA.

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But the circle we're on is that at that point,

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Now, you're saying it comes back in because there's been an unconstitutional police administration, but I don't know where you're getting that from.

[00:16:44] Speaker 00:
I'm not suing the government.

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I'm not suing the OCC or the government for violation of my constitutional rights.

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I'm suing the government for specific torts, traditional common law torts.

[00:16:57] Speaker 04:
But you can't succeed on that if it comes within the discretionary exception.

[00:17:01] Speaker 00:
Exactly.

[00:17:02] Speaker 00:
So then the question is, what is permitted under the discretionary function or duty exception?

[00:17:07] Speaker 00:
That's what I'm trying to get you to talk about.

[00:17:09] Speaker 00:
I'm sorry.

[00:17:10] Speaker 00:
I apologize.

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This is not something that I do ordinarily.

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What I'm trying to say is that I do not believe that the discretionary function or duty exception allows an official to

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remains in effect, shall we say, if there has been a violation of a constitutional duty.

[00:17:36] Speaker 04:
It was not an FTCA case, but if you

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But the language we're dealing with now, and there were many versions of that case, where it came and went, came and went, went through and forth.

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In any event, the language you're talking about there was not in the FPCA thing.

[00:18:05] Speaker 00:
No, sir.

[00:18:06] Speaker 00:
The Hartman v. Moore case that I'm talking about, the decision, it did not deal with the STCA.

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It was a bidder's claim.

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However, if, for example, in my reply brief I point out that in Castro against the United States, the first appellate decision, they cite 10 or 12 cases for the proposition that the discretionary function or duty exception does not protect a government official when there is a violation of the Constitution involved.

[00:18:33] Speaker 02:
And were those arguments presented to the district court in opposing the government's motion to dismiss?

[00:18:41] Speaker 00:
Well, the argument that it could not be a discretionary function or duty if the government was violating the Constitution was presented.

[00:18:51] Speaker 02:
All right.

[00:18:54] Speaker 02:
Let us hear from the government, and maybe you can tell me where you made that argument, where I can find it in the joint appendix.

[00:19:02] Speaker 02:
OK.

[00:19:03] Speaker 02:
Thank you.

[00:19:12] Speaker 02:
Maybe we could start with the FTCA since we're sort of focused on that right now.

[00:19:19] Speaker 02:
And just to cut to the chase here, my concern is that there is a circuit split on this question.

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And the cases that are cited so far by the parties don't address that.

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And the question is open in this jurisdiction.

[00:19:43] Speaker 02:
How do you suggest we proceed?

[00:19:50] Speaker 05:
I would suggest that the court proceed in the manner that the government has briefed this issue here in this court, where we made it clear that in order to be

[00:20:06] Speaker 05:
consistent with Berkowitz and Harlow and how cases are dealt with in the Divens context.

[00:20:15] Speaker 05:
You have to apply the same kind of test in the FDCA context so you don't get different... Well, they're two separate causes of action.

[00:20:25] Speaker 02:
Correct.

[00:20:25] Speaker 02:
And as I understood the citations in your brief,

[00:20:29] Speaker 02:
You're relying on the immunity defense, which is a matter that the district court did not reach because you prevailed on your other ground.

[00:20:40] Speaker 05:
That's correct, Your Honor.

[00:20:42] Speaker 05:
We are analogizing it to an immunity defense.

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And all we're saying is, I think the bottom line, if I could get the government's position, is that it's a very complicated question about whether or not an allegation of a constitutional violation

[00:21:03] Speaker 05:
takes discretionary function off the table.

[00:21:06] Speaker 02:
It is, but the circuits have split, and it's an open question in this circuit.

[00:21:12] Speaker 02:
So is this a matter we should remand to the district court and let this be fleshed out so the district court can decide if the plaintiff has raised a viable constitutional exception to the exception?

[00:21:28] Speaker 05:
I think this court can address it as a matter of law.

[00:21:33] Speaker 05:
And I would like to just make sure I state that the government's position is that

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the courts are constrained in this area, but if plaintiff, in other words, plaintiff cannot merely willy-nilly make an allegation of a constitutional violation because if that's the test, then as Judge Sintel said, everyone would make that and that would take care.

[00:21:56] Speaker 02:
Just let me just say, you cannot ignore his complaint and I'll defer to Judge Pillard.

[00:22:04] Speaker 05:
I'm sorry, Your Honor.

[00:22:05] Speaker 02:
You said willy-nilly.

[00:22:07] Speaker 05:
Well, I think that I didn't use that phrase without some thought.

[00:22:13] Speaker 05:
I think I would refer the court to his complaint.

[00:22:16] Speaker 05:
And his complaint, unfortunately, this is part of the problem with this case, is really the whole thing is really just a rehash of the administrative proceeding and how it was wrong.

[00:22:26] Speaker 05:
I looked through it fairly carefully and there are a couple of references.

[00:22:32] Speaker 05:
The most notable one is in paragraph 61 where it says that the agency was embarrassed and angered by his whistle blowing and then decided to retaliate against him.

[00:22:44] Speaker 05:
And I would argue that even under Twombly and Iqbal, that that's not sufficient.

[00:22:50] Speaker 05:
I mean, it's a lengthy, lengthy complaint.

[00:22:53] Speaker 05:
And as I said, it mostly re-argues the emergency administration.

[00:22:56] Speaker 05:
But the point that I want to make clear is that

[00:23:00] Speaker 05:
We do agree that if a plaintiff can make out a clearly established Constitution, not just throw something out, but can address and make out a clearly established constitutional violation, then in that, under those circumstances, it might, might trump D.F.

[00:23:21] Speaker 05:
We don't think that is happening here.

[00:23:23] Speaker 04:
But what does necessarily have to trump D.F.D.C.A.

[00:23:25] Speaker 04:
to give a remedy?

[00:23:27] Speaker 04:
The Bivens Act is

[00:23:29] Speaker 04:
And that's why I'm saying that is sort of our bottom line position.

[00:23:52] Speaker 05:
That needs to be considered in the context of several other things.

[00:23:59] Speaker 05:
FDIC versus Meyer made it very clear that you cannot raise constitutional claims.

[00:24:05] Speaker 01:
Mr. Frank, he is not seeking to make a constitutional claim.

[00:24:10] Speaker 01:
He's made a tort claim under the Federal Tort Claims Act.

[00:24:14] Speaker 01:
and he's made a constitutional claim under Bivens.

[00:24:17] Speaker 01:
And you know very well that the constitutional issue is coming into the Federal Tort Claims Act side of his case in the form of a question whether the discretionary function exception applies or not.

[00:24:32] Speaker 01:
And there is legion case law, much stronger than the decision in Pooler that he cites, and not anywhere cited.

[00:24:41] Speaker 01:
or alluded to in the government's brief, holding that where there is an allegation of unconstitutional conduct by the government, here, retaliation and violation of the first and fifth amendments, the discretionary function exception does not apply.

[00:24:58] Speaker 01:
And you have suggested that the government's position to that is that it is

[00:25:03] Speaker 01:
where there is a clearly established right, or maybe I would suggest where there is a right with sufficient specificity, because that tracks more the concepts used in the Federal Tort Claims Act, that the constitutional allegations would in fact obviate the availability of the discretionary function exception.

[00:25:26] Speaker 01:
Is that your position?

[00:25:30] Speaker 05:
Yes it is.

[00:25:31] Speaker 01:
Thank you.

[00:25:33] Speaker 01:
And I'm a bit surprised that the government was not more candid in its brief, given the experience that you've had with this issue and your awareness that this is a pro se litigant and that this is a circuit split.

[00:25:44] Speaker 03:
May I interrupt just to ask if I could get a brief review of the meeting on that lightweight and then I can... What is the government's position?

[00:25:54] Speaker 03:
Yes.

[00:25:56] Speaker 03:
The question you were just asked by Judge Pillard, would you state the government's position?

[00:26:01] Speaker 05:
The government's position, I think, Your Honor put it quite well, is that where plaintiff has alleged and shown

[00:26:11] Speaker 05:
a clearly established violation under Berkowitz of a constitutional right with the requisite specificity that he may have made out a claim or an argument that D.F.

[00:26:29] Speaker 05:
is Trump.

[00:26:30] Speaker 05:
I would just like to point out... That what is Trump?

[00:26:33] Speaker 05:
that the discretionary function might be Trump, in spite of the fact, like I said, of FDIC versus Mueller, and in spite of the fact that, as your honor pointed out, the discretionary function, in its language, says that it applies whether or not the discretion be abused, and also that Berkowitz, in the discretionary function, only talked about statutes and regulations and did not talk about the Constitution.

[00:27:00] Speaker 03:
I'm a little surprised to find that the government's decision.

[00:27:04] Speaker 05:
In answer to Judge Pilar, if I might just, the government takes pride in its duty to inform the court.

[00:27:17] Speaker 05:
We are familiar with the cases that are cited in Castro.

[00:27:23] Speaker 05:
That was an opinion, of course, that was overturned in bank, but that doesn't affect the cases that were cited in that opinion.

[00:27:31] Speaker 05:
And my point being that...

[00:27:33] Speaker 01:
Since then, the Fifth Circuit has reiterated the position that the majority of circuits take.

[00:27:39] Speaker 01:
Has it not?

[00:27:39] Speaker 01:
And I think it's a sports authority case.

[00:27:42] Speaker 01:
613 F3rd, 559 at 569.

[00:27:51] Speaker 01:
The Anban Court did not take a position on this issue, and in fact said it wasn't presented in Castro.

[00:27:57] Speaker 01:
And then the Fifth Circuit later said, yeah, where there's an allegation of constitutional wrongdoing, the discretionary function doesn't apply.

[00:28:05] Speaker 05:
It's an open question there and throughout the courts, because in Santos, the Fifth Circuit

[00:28:11] Speaker 05:
said that an Eighth Circuit allegation or violation of an Eighth Circuit was not sufficient.

[00:28:17] Speaker 05:
So it is an open question.

[00:28:18] Speaker 05:
The point I wanted to make as far as those cases is the government's view, and I think the court will look, that the vast majority of those cases are stated in dictum, that language, like Sutton in the Fifth Circuit and some of the other cases there.

[00:28:33] Speaker 05:
It's dictum.

[00:28:33] Speaker 05:
It is not holding.

[00:28:37] Speaker 05:
And I think the court will find that if it looks through that.

[00:28:41] Speaker 05:
This court has not addressed that, but I think has not held that.

[00:28:49] Speaker 05:
And in fact, if I might point out, that in Gray, it's an older case, if I can just find it here.

[00:29:07] Speaker 05:
In gray, the court stated, and I want to be careful what I say here,

[00:29:15] Speaker 05:
The great court, in that case, although it was a Bivens case, the court held that there was qualified immunity even if there was an allegation that there had been false and misleading evidence to the jury because that was not clearly established.

[00:29:37] Speaker 05:
And those are the exact claims the plaintiff was making here.

[00:29:39] Speaker 04:
You're not claiming that qualified immunity is exactly coextensive with the discretionary

[00:29:45] Speaker 04:
Uh, duty.

[00:29:48] Speaker 05:
Not, no, not exactly coextensive, but the test is similar.

[00:29:52] Speaker 05:
The test is similar, whether it's police staff.

[00:29:54] Speaker 05:
And the point being, Your Honor, that plaintiff has not presented any case law that says that the allegations, the violations that he's alleging in this case, that they were clearly established.

[00:30:09] Speaker 05:
Hartman does not do that.

[00:30:10] Speaker 01:
Is the government's position that retaliation

[00:30:15] Speaker 01:
based on what a litigant has said about the government, for example, that the government was discriminating based on ethnicity, that that kind of retaliation, that's not clearly established and or sufficiently specific under Berkowitz.

[00:30:32] Speaker 01:
Is that the government's position?

[00:30:34] Speaker 01:
That is the government's position.

[00:30:35] Speaker 01:
It's not sufficiently clear.

[00:30:38] Speaker 05:
That is correct.

[00:30:40] Speaker 05:
Under these circumstances.

[00:30:41] Speaker 05:
Sure, there are a lot of cases that would hold that in a criminal prosecution.

[00:30:49] Speaker 05:
Hartman makes reference to those cases.

[00:30:52] Speaker 05:
What we are saying is not clearly established.

[00:30:55] Speaker 05:
Is A, for such an allegation in a civil administrative context, and B, in the context of this particular case.

[00:31:06] Speaker 01:
So there's just, Mr. Frank,

[00:31:08] Speaker 01:
So there's some ambiguity in your mind whether the law forbids the government from, I mean, this has not been, we're talking about allegations here, but there's some ambiguity in your mind whether the government forbid, whether the Constitution forbids the government from retaliating against someone based on his allegations that the government was discriminating.

[00:31:30] Speaker 05:
No, Your Honor, there's no ambiguity.

[00:31:32] Speaker 05:
What I'm saying is that, as the Supreme Court said in Cheyenne, that in looking at the clearly established test, that you can't look at it from 50,000 feet in the air at a level of generality.

[00:31:48] Speaker 05:
You have to dig down.

[00:31:49] Speaker 01:
Anderson v. Creighton and the line of cases which are more familiar.

[00:31:52] Speaker 05:
So the proposition that you can't retaliate, that's, of course, an accepted proposition.

[00:31:57] Speaker 05:
But under the facts of this case, and I would like to

[00:32:00] Speaker 05:
to point out that the problem in this case, there's no evidence or suggestion, if you look through all of the opinions in this case, including the district court, the administrative law judge, the controller, that the government did anything improper.

[00:32:17] Speaker 05:
The problem here is an anonymous court's Egypt decision.

[00:32:21] Speaker 05:
The problem is the government failed in its proof on the third of three elements in this case.

[00:32:28] Speaker 02:
So is the government's position that the complaint does not adequately state a constitutional violation such that if it were proven

[00:32:51] Speaker 02:
it would render the discretionary exception inapplicable in the Federal Tort Claims Act cause of action?

[00:33:00] Speaker 05:
That's correct, Your Honor.

[00:33:10] Speaker 05:
Just like to make a brief comment about the accrual.

[00:33:13] Speaker 05:
I think the court understands that.

[00:33:15] Speaker 05:
Plaintiff tries to make a distinction between the initiation and the actual prosecution of it.

[00:33:20] Speaker 05:
Even if one accepts that, and I think one should not, but even if one accepts that, the actual prosecution of the case ended

[00:33:31] Speaker 05:
four or five years before Plano filed his suit.

[00:33:35] Speaker 05:
If you don't find that the notice of the claim accrued the cause of action, which we think it clearly does, then at the very latest it's when the administrative law judge issued her opinion and the prosecution was well over, and that was four years too late.

[00:33:53] Speaker 01:
It's a tough issue because I understand your view and it's clear that the retaliatory prosecution claim seems to accrue at the beginning.

[00:34:04] Speaker 01:
At least that's my current thinking.

[00:34:06] Speaker 01:
When the case is initiated, that's when the claim accrues.

[00:34:09] Speaker 01:
But when you have these two parallel claims, a malicious prosecution where the element is that the prosecution has to be unsuccessful and this parallel claim that maybe accrues at the beginning of the prosecution,

[00:34:22] Speaker 01:
Do you really want someone to be, you know, to have to file the constitutional claim earlier when maybe it proves that he's culpable and he thinks, you know, maybe it wasn't so retaliatory after all, and you kind of want them both, you know, as a functional matter,

[00:34:42] Speaker 01:
to maybe they'd go away if you wait until the end of the litigation.

[00:34:47] Speaker 01:
And I'm not sure doctrinally how to put that together, but I do think that the decision that you're taking invites maybe some consequences that the government wouldn't be that comfortable with.

[00:35:01] Speaker 05:
Well, I understand what you're saying.

[00:35:03] Speaker 05:
And plaintiff, as he admits in his brief, he has about, I don't know, five, six pages of what he calls policy arguments about why it shouldn't be this way.

[00:35:14] Speaker 05:
And he makes a persuasive case.

[00:35:17] Speaker 05:
And that would be up to Congress or someone to change the rules on the statute of limitations.

[00:35:24] Speaker 05:
And those are the kind of considerations that would go there.

[00:35:26] Speaker 05:
But the law is very clear.

[00:35:30] Speaker 05:
as I think all of the judges said, when a claim does accrue, when he knows of his injury, knows of its cause, and surely he did, and he admitted in his papers in the district court that he knew from day one that this suit was brought with retaliatory animus.

[00:35:50] Speaker 01:
And why is it not a continuing violation for the reasons that he has argued

[00:35:57] Speaker 01:
Why is it not, you know, if it's ongoing?

[00:36:01] Speaker 05:
Well, firstly, as Your Honor is aware, the district court didn't reach sort of the merits of that, because he waived it.

[00:36:09] Speaker 05:
So we didn't really get to fully brief it.

[00:36:12] Speaker 05:
The government didn't address it.

[00:36:14] Speaker 05:
But just to answer Your Honor's question, there's a difference, as Judge Santelis pointed out, between FTCA

[00:36:23] Speaker 05:
whether continuing tort doctrine has been adopted, and Bivens cases.

[00:36:28] Speaker 05:
As you know, Bivens are very special cases, and the court looks at special factors.

[00:36:33] Speaker 05:
The court is very careful not to expand the role of Bivens.

[00:36:37] Speaker 05:
So I think the court would be hesitant to bring that on board.

[00:36:40] Speaker 05:
In any event, it was not fully briefed, and we believe that the court... Should we send it back for further development then?

[00:36:47] Speaker 05:
I don't think it's necessary because I think the law is quite clear

[00:36:52] Speaker 05:
that in not raising this in his initial motion to dismiss and raising it for the very first time in his motion for reconsideration, I'm sorry.

[00:37:05] Speaker 04:
When you say not raising this, this that you're talking to the continuing doctrine as it relates to a Bivens action.

[00:37:13] Speaker 01:
Yes, sir, because it was fully briefed by both sides as it relates to the FTC claim.

[00:37:18] Speaker 05:
It was briefed on me.

[00:37:20] Speaker 05:
And if you read his brief, I mean, he makes it... I'm sorry?

[00:37:25] Speaker 01:
I have.

[00:37:25] Speaker 01:
And I think, I mean, it seems a little bit of formalism for the government to say that issue wasn't in the case.

[00:37:31] Speaker 01:
It's the same claim under two different theories of law.

[00:37:36] Speaker 01:
Can we not understand him to have raised that?

[00:37:41] Speaker 05:
Well, I guess under a theory of good enough for government work, maybe.

[00:37:45] Speaker 05:
But I think this court appreciates having arguments carefully spelled out.

[00:37:53] Speaker 01:
Is the argument really appreciably different, the continued violation argument, as it would apply to Bivens as compared to how it would apply to the

[00:38:02] Speaker 05:
I think it could.

[00:38:04] Speaker 05:
I mean, as I said, we didn't brief it, but the law is very clear.

[00:38:10] Speaker 05:
I mean, the district court judge was following the clear law that if an argument is not made in the motion to dismiss, then it's waived.

[00:38:19] Speaker 05:
I think, at least to me, it's very clear, he uses the words over and over again, continuing toward, the word continuing appears all throughout the discussion of the FDCA.

[00:38:31] Speaker 05:
It does not appear at all when he's talking about the Bivens.

[00:38:35] Speaker 05:
So, you know, do we want judges to have to, I think one court said it's not up to the judges to make people's arguments for them.

[00:38:44] Speaker 05:
Someone said that.

[00:38:46] Speaker 01:
All right, thank you very much.

[00:38:47] Speaker 01:
You did not raise the Twombly argument against the Bivens claim in this litigation, did you?

[00:38:54] Speaker 01:
I'm sorry.

[00:38:54] Speaker 01:
You said that the Bivens claim wasn't specifically alleged, and you cited the Supreme Court's decision in Twombly, and I was just looking back through the file, and I didn't see you raising the Twombly argument before.

[00:39:10] Speaker 05:
You know, I'm not going to swear to it, but I recall from reading last night that in our motion to dismiss

[00:39:18] Speaker 05:
At pages 18 to 20, we did address this specificity issue, whether or not we actually cited.

[00:39:24] Speaker 01:
In a burkettist sense of specificity.

[00:39:27] Speaker 05:
Yeah, I wouldn't want to say for certain before the court.

[00:39:31] Speaker 02:
I mean, this case has a difficult procedural history because on the invasion of privacy claim, when the district court finally dismissed that on your motion for reconsideration, that was based on the failure

[00:39:47] Speaker 02:
to adequately plead.

[00:39:49] Speaker 02:
So I mean, it was raised in that context.

[00:39:52] Speaker 02:
And the government had raised a number of various defenses that the district court never reached.

[00:40:00] Speaker 05:
Your Honor, I'm sorry.

[00:40:00] Speaker 05:
As I get older, my hearing is going.

[00:40:03] Speaker 02:
Oh, sorry.

[00:40:04] Speaker 02:
All right.

[00:40:04] Speaker 02:
Well, we're supposed to have better acoustics.

[00:40:07] Speaker 03:
Sorry.

[00:40:08] Speaker 03:
OK.

[00:40:08] Speaker 03:
I can recommend a good audio.

[00:40:12] Speaker 02:
Thank you.

[00:40:13] Speaker 02:
Let us thank you very much.

[00:40:14] Speaker 05:
All right.

[00:40:15] Speaker 05:
Thank you, Your Honor.

[00:40:23] Speaker 02:
We'll give you a couple of minutes.

[00:40:25] Speaker 00:
Thank you very much, Your Honor.

[00:40:27] Speaker 00:
You wanted to know where the issue of filing the Constitution and discretionary function and duty is raised.

[00:40:34] Speaker 00:
It's raised at page 61 of tab 3, our opposition to motion to dismiss.

[00:40:41] Speaker 00:
Thank you.

[00:40:42] Speaker 00:
Now, my colleague said that this was not a clearly established wrongdoing.

[00:40:48] Speaker 00:
Well, Justice Souter in Hartman v. Moore says, official reprisal for protective speech offends the Constitution because it threatens to inhibit exercise of the protected right, citing Crawford L. against Britain.

[00:41:01] Speaker 00:
And the law is settled that as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions.

[00:41:09] Speaker 00:
including criminal prosecutions for speaking out.

[00:41:12] Speaker 00:
And that's at Roman numeral two of that decision.

[00:41:17] Speaker 00:
In terms of the administrative law judge's decision, under the OCC's rules, the decision isn't final until it's final.

[00:41:26] Speaker 00:
Frankly, 13 months later, 11, 12, 13 months later, when the controller finally issued the final decision, that was when there was really a final decision that ended that proceeding.

[00:41:39] Speaker 04:
If the controller had never issued a decision, would your case have never ripened?

[00:41:48] Speaker 00:
Well, I don't know how to control it.

[00:41:51] Speaker 04:
You're not claiming that the case had not ripened until the controller received an issue.

[00:41:56] Speaker 04:
Therefore, the special limitations didn't begin.

[00:41:59] Speaker 04:
Would you say that if the controller who sat on it for 13 months had continued to sit on it, your case would never have ripened?

[00:42:06] Speaker 00:
I guess I would still be sitting in that administrative proceeding, Your Honor.

[00:42:10] Speaker 04:
So you would not be able to?

[00:42:11] Speaker 00:
No, I would still be waiting for a decision from the controller.

[00:42:14] Speaker 00:
And the last point I'd like to make is that I was sued under several banking statutes required me to be an institution affiliated party.

[00:42:25] Speaker 00:
The administrative law judge, the controller, and this court have previously found that I was not.

[00:42:30] Speaker 00:
So quite frankly, I don't know where the government got its authority to sue me because I was not an institution affiliated party.

[00:42:36] Speaker 00:
Thank you.

[00:42:37] Speaker 02:
Thank you.

[00:42:37] Speaker 02:
We'll take the case under advisement.

[00:42:39] Speaker 00:
Thank you very much.