[00:00:01] Speaker 00:
Case number 16-5045 at L. Stuart Lyth at L versus Office of Inspector General for the U.S.

[00:00:10] Speaker 00:
Department of Labor at L. Daniel Petrol, former Inspector General of the Office of the Inspector General for the U.S.

[00:00:17] Speaker 00:
Department of Labor and his official and or official capacities at L. Appellants.

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Mr. Schulz for the Appellants.

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Mr. Keonega for the Appellees.

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Mr. Schultz.

[00:00:55] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:00:57] Speaker 04:
Benjamin Schultz on behalf of the defendant's appellants.

[00:01:01] Speaker 04:
As the Supreme Court has recently clarified and as this Court has also recognized, implying a Bivens remedy is a disfavored judicial activity and one that should not take place when either there is adequate alternative remedies or when there are special factors counseling hesitation.

[00:01:15] Speaker 04:
And this case presents both.

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There are a number of grounds that we presented in our brief for why that is the case.

[00:01:21] Speaker 01:
And several of those were not presented before the district court, isn't that right?

[00:01:25] Speaker 04:
Your Honor, we did not specifically articulate the Privacy Act and the APA as among the special factors canceling hesitation.

[00:01:32] Speaker 04:
I'd be happy to explain why we think the court can reach those issues nonetheless if the court has questions about that.

[00:01:38] Speaker 04:
I assume it's because you did cite the Libby case twice below.

[00:01:41] Speaker 04:
Is that why?

[00:01:42] Speaker 04:
Well, we did cite.

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I believe we did cite that case.

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But in any event, Your Honor, there's a couple of reasons why I think the court could reach the Privacy Act in the APA if it wanted to.

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One is that we did argue to the district court that no Bivens cause of action existed.

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And we think that in this context, saying a particular reason for why a Bivens cause of action exists is not a separate argument, but it's just additional support in support of the claim.

[00:02:06] Speaker 01:
It's surely a separate argument.

[00:02:08] Speaker 04:
Well, Your Honor, even if the court disagrees with that, I think everyone agrees and certainly we understood the opposing counsel's brief to recognize that this court has discretion to reach arguments that might otherwise be deemed orfeited.

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And here there's a couple of unique facts about this case that we think the court should exercise this discretion if it wanted to reach the Privacy Act and the APA.

[00:02:28] Speaker 04:
We presented a number of additional grounds so that the court doesn't need to reach those.

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But first of all, here you have the unique circumstance where the district court didn't actually reject our argument that a Bivens cause of action was unavailable.

[00:02:41] Speaker 01:
And you took secret consideration on that, did you?

[00:02:43] Speaker 04:
Your Honor, we elected not to.

[00:02:45] Speaker 04:
We thought that we would seek reconsideration on another issue.

[00:02:50] Speaker 04:
Perhaps in retrospect, it might have been better if we had sought reconsideration.

[00:02:54] Speaker 03:
What would your grounds for reconsideration have been that district court considered it and decided he just did not want to decide that one?

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You would have no new evidence, no new argument, no additional reason.

[00:03:05] Speaker 04:
I think Your Honor is right that we would have had to persuade the district court that it should consider an issue that the district court said that it didn't want to do.

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Perhaps strategically, we should have tried to do that.

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We elected not to.

[00:03:15] Speaker 03:
It's not like the district court missed the point.

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The district court discussed the point and said, well, we just don't want to decide this one today.

[00:03:22] Speaker 04:
That is how we read the district court's opinion, that the district court did not want to decide the issue because it thought that the due process claim was very, very weak and thought it was unnecessary.

[00:03:29] Speaker 01:
Let's talk about that.

[00:03:31] Speaker 01:
I'm interested, really, in putting aside the Bivens and special factors and alternative schemes analysis.

[00:03:38] Speaker 01:
Just looking at the constitutional claim and the qualified immunity question, can you, in a really fact-based way on this pleading, give us your view on that question?

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Absolutely.

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And here, I think it's important to distinguish between two sets of defendants, Petroleum and

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and Harris versus Barry.

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So starting with Petroli and Harris, here keeping in mind that the question is individual liability.

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So it has to be those individual defendants themselves that committed a constitutional violation.

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We believe that none of the pleadings show that either Petroli or Harris abridged a liberty interests of lifts.

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And that's because reading this court's case law and the Supreme Court's case law, pure damage to reputation does not infringe a liberty interest no matter how great the consequences for an individual's future employment prospects.

[00:04:29] Speaker 01:
And that's because these contracts were finished by the time the report came out.

[00:04:33] Speaker 04:
That's correct.

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Both Petroli and Harris are Department of Labor officials.

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There's no indication that they took any action or that LIF has even bid on another contract with the Department of Labor or the Department of Labor Inspector General's office.

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And so if any untangible action was taken against LIF, it would have been taken against LIF by somebody else.

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Is it the somebody else or is it the chronology?

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I mean, if somebody in an agency issues a report that's very damaging, I mean, we haven't in Carciva, in Dominion, in our various cases, we haven't parsed

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and limited the causal flow from somebody's action.

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Is that what you're relying on?

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Is which person can be held responsible, or are you relying on the fact that there wasn't an accompanying adverse

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I think it's complicated because there's two strands of this court's case law.

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There's the reputation plus and the stigma plus.

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When we're talking about reputation plus, which is not a theory that I think the district court adopted, then you would actually look at whether or not it happened at the same time.

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But are you also under stigma plus having to look at some, well, I guess here it's the de facto debarment.

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And so you're saying that for the theory that's enough?

[00:05:52] Speaker 04:
Well, Your Honor, again, I think if their theory were different, if they were saying that Petroli or Harris had actually taken some action that debarred him in a binding sense, in an automatic sense, which is their theory as to Barry, then perhaps the analysis would be different, but that's not their theory as to

[00:06:10] Speaker 04:
petroleum Harris.

[00:06:10] Speaker 04:
Their theory is that what they said about Lyft was so bad that he just couldn't get any more work.

[00:06:16] Speaker 04:
And the problem is that that is exactly what the plaintiff in Seeger was saying.

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He was saying, this is what you said about me, and it was a really, really negative recommendation that the defendant in Seeger had given.

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And the allegation in Seeger was that he was unable to obtain other employment, other appropriate employment in his field.

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And the Supreme Court said, regardless, your injury still flows from reputation, so it's not a liberty interest.

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And we don't think that

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this court's decision in Kartseva, which we recognize is somewhat difficult to parse, but we don't think that this court in Kartseva ruled anything that is inconsistent with the Supreme Court's decision in Sigurd, and the most that can be said about Kartseva was that there is some dicta that is in tension with Sigurd.

[00:06:55] Speaker 01:
But and Siegert doesn't make the move that I took you to be making, which is these individuals weren't responsible for the sequelae of the report.

[00:07:05] Speaker 04:
Well, Your Honor, Siegert was a Bivens action.

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And so the defendant in Siegert was the individual who had given the negative recommendation.

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I don't think there was any allegation that that individual had, following the issuance of the recommendation, then done something in a binding way to not hire that other individual.

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The individual looked for other jobs with other employers and just was unable to get them.

[00:07:28] Speaker 01:
Right.

[00:07:28] Speaker 01:
I take your analogy to Seeger.

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I was just probing the source of what I took to be your first answer to my question about why there's no constitutional

[00:07:39] Speaker 01:
claim against Harrison Patrol, and I thought it had to do with these individuals being responsible and for part of what happened.

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And I wasn't sure I saw precedent for that particular way of spinning it.

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So perhaps maybe I'm not answering your Honor's question quite the right way.

[00:07:53] Speaker 04:
What I think is doing some work here is the Supreme Court's clarification that when you look at Bivens actions, it has to be the individual defendant, the individual Bivens defendant who has committed a constitutional violation.

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And so let's take a step back and look at the constitutional violation that is being alleged here.

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It is that the defendant abridged a liberty interest without providing the individual due process.

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So that means that if you were going to say that an individual defendant committed that violation, you have to show that that defendant abridged a liberty interest without providing due process.

[00:08:24] Speaker 01:
And here I think their claim is there was a very injurious report that these defendants were responsible for releasing without giving Mr. Liff an opportunity to address the statements and implications about his malfeasance and fraud or similar misdeeds.

[00:08:46] Speaker 01:
And your response to that is?

[00:08:48] Speaker 04:
And our response to that is we're not disputing at this stage the allegations that this caused reputational damage.

[00:08:55] Speaker 04:
But that did not complete the constitutional violation.

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The constitutional violation, if any, occurred was only complete once in addition to that reputational damage.

[00:09:04] Speaker 04:
He also suffered tangible adverse action and that that tangible adverse action occurred without the provision of adequate process.

[00:09:11] Speaker 04:
So for example, if some other official had acted on the report

[00:09:15] Speaker 04:
but had given Lyft a hearing and sufficient notice and et cetera all before taking that action, then there might not have been any constitutional violation at all.

[00:09:25] Speaker 01:
And you're saying there's no allegations that he sought and was denied further labor department contracts and therefore?

[00:09:32] Speaker 04:
Well, Your Honor, I think it would actually even have to be more than that as to the individual defendant.

[00:09:36] Speaker 01:
He would have to show that either Petroli or Harris was somehow involved in the actual tangible adverse action, the denial of... What if we thought it was enough that it was the Labor Department or someone else in government foreseeable effect of what you did?

[00:09:51] Speaker 04:
That was Siegert, Your Honor.

[00:09:53] Speaker 04:
Siegert, there was no doubt that when an employer asked the defendant in Siegert, hey, we have to certify this guy.

[00:10:00] Speaker 04:
Can you give him a recommendation?

[00:10:01] Speaker 04:
And the recommender in Siegert said, this is the most unethical guy I've ever worked with.

[00:10:06] Speaker 04:
I can't recommend him for certification.

[00:10:08] Speaker 04:
There's no doubt that he did.

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He understood what the consequence of that would be.

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Indeed, there was an allegation in secret that this was maliciously done, that it was intentional.

[00:10:17] Speaker 04:
And the Supreme Court said, nonetheless, that's an injury that flows from reputational damage, and it does not infringe a liberty interest.

[00:10:24] Speaker 01:
And in part, because the doctor and Dr. Seeger was able to get a bunch of other work.

[00:10:30] Speaker 01:
It was one or two instances where he was shown to have been foreclosed.

[00:10:36] Speaker 04:
No, Your Honor, I don't think that's the facts of Seeger.

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The individual was given temporary work.

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pending the question of whether or not he would get the certification, then they sought the recommendation and the recommendation came in and the recommendation was highly negative and at that point he couldn't get certified.

[00:10:51] Speaker 04:
The allegation in Seeger, which remember that was decided at the motion to dismiss stage, the allegation in Seeger was he was unable to obtain other appropriate employment in the field as a result of that negative recommendation.

[00:11:02] Speaker 01:
Are you relying on process that was in fact given to Mr. Leff?

[00:11:06] Speaker 04:
I'm sorry?

[00:11:07] Speaker 01:
Are you relying on the adequacy of process that was, in fact, afforded to Mr. Lift?

[00:11:12] Speaker 04:
As to Barry, we are making that argument, yes.

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And I can discuss it with the court once, but our position is that the facts as alleged do not show that any action that Barry took against Mr. Lift were done without sufficient notice of process.

[00:11:26] Speaker 03:
Because I understand the alleged constitutional violation here is issuing these reports without providing an opportunity

[00:11:38] Speaker 03:
for Mr. Lift to rebut the points in them, something like that, right?

[00:11:42] Speaker 03:
I think that's fair.

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Without at some point in the process having had an opportunity to give his side of the story.

[00:11:49] Speaker 03:
I think that's a good characterization.

[00:11:51] Speaker 03:
Here's my question to begin.

[00:11:53] Speaker 03:
Paragraph 79 of the complaint says, defendant patrolling at all relevant times the acting Inspector General negligently conducted and supervised an investigation.

[00:12:05] Speaker 03:
Is there such a thing as a negligent violation of due process that would overcome qualified immunity?

[00:12:13] Speaker 03:
How can it overcome qualified immunity if it's negligent?

[00:12:17] Speaker 04:
Well, Your Honor, I think certainly when you're talking about negligent supervision, the clear answer is that that is insufficient.

[00:12:22] Speaker 03:
Well, is there any allegation here that Mr. Petroli knew that the investigators didn't provide him an opportunity to state his side of the story?

[00:12:36] Speaker 04:
Your honor, I have to go back and look at that.

[00:12:38] Speaker 04:
There are some kind of catch-all allegations that may not be specific enough.

[00:12:44] Speaker 04:
But regardless, I think the argument that we are presenting to the court is that there's no liberty interest that was infringed.

[00:12:51] Speaker 04:
And whether or not you think that there was some...

[00:12:54] Speaker 03:
Assume there was a liberty interest, but each of the three people didn't know, they assumed that the normal inspector general processes were followed, the ones that opposing counsel points out are supposed to follow.

[00:13:09] Speaker 03:
If the people who in the end released the reports,

[00:13:16] Speaker 03:
In order to establish a violation that overcomes qualified immunity, don't they have to know that there's been a violation of the person's constitutional right, assuming there is a constitutional right?

[00:13:30] Speaker 04:
It would be hard, given the Supreme Court's admonition that it is an individual's own actions and only that individual's own actions that can create a constitutional violation.

[00:13:41] Speaker 03:
It's not just that.

[00:13:41] Speaker 03:
It's the court says you have to either have to be incompetent or I don't know what the other word was.

[00:13:48] Speaker 01:
Knowingly violate the law.

[00:13:49] Speaker 03:
Knowingly violate the law.

[00:13:50] Speaker 03:
I'm sorry, so your honor is asking for purposes of qualified immunity.

[00:13:53] Speaker 03:
Just so you know, I'm not trying to trick you here.

[00:13:56] Speaker 03:
Sure.

[00:13:57] Speaker 03:
Yes.

[00:13:57] Speaker 04:
Certainly, Your Honor, if it was not clear, then absolutely, the individual would be entitled to qualify immediately.

[00:14:03] Speaker 03:
And if the individual did not know, because the words of the Supreme Court opinion, as my colleague kindly points out, include no, unless there's evidence or an allegation that

[00:14:20] Speaker 03:
person knew that in this case, the violation, which is the failure to provide an opportunity to be heard, happened, you can't have overcome qualified immunity.

[00:14:31] Speaker 04:
Isn't that right?

[00:14:31] Speaker 04:
I think Your Honor is right.

[00:14:33] Speaker 04:
And there are a number of different ways to resolve the case.

[00:14:35] Speaker 04:
And if the court wants to resolve it on qualified immunity, that is certainly an available ground.

[00:14:40] Speaker 04:
I do argue in qualified immunity.

[00:14:42] Speaker 04:
I'm sorry?

[00:14:44] Speaker 04:
We have absolutely presented qualified immunity as one of the grounds on which this court can rule.

[00:14:50] Speaker 04:
But I do want to spend at least a little bit of time talking about Bivens, because there are a number of grounds that we have presented as to why I don't think the court needs to reach any of the issues at all about qualified immunity.

[00:15:02] Speaker 04:
And in particular, I want to focus the court's attention on the contractor remedies.

[00:15:06] Speaker 04:
Now, we think these are adequate alternative remedies, but the court doesn't even need to go that far.

[00:15:10] Speaker 04:
All that the court needs to conclude is that there's a special factor counseling hesitation.

[00:15:14] Speaker 04:
And so there's no need to parse the exact contours of what exactly you can get under these contractor remedies and precisely what claims you can give.

[00:15:22] Speaker 04:
All that the court needs to recognize is... So help us understand that process.

[00:15:26] Speaker 01:
If LIF is wanting to apply for more contracts and he's bidding

[00:15:35] Speaker 01:
And he's concerned that somebody in the federal government might be, you know, checking on his past contracts and might find out something that they would, in his view, improperly weigh when and what

[00:15:50] Speaker 01:
can he do to remedy that, assuming for current purposes that what's in the reports is actually erroneous?

[00:15:59] Speaker 04:
Sure.

[00:15:59] Speaker 04:
So among the things he can do, and I see my time is up, but to answer your honor's question, the Court of Federal Claims has itself recognized that if you're alleging that the reason you were denied a contract was because of a de facto debarment that violated your due process rights, you can challenge that in the Court of Federal Claims and say, hey,

[00:16:18] Speaker 04:
The reason you didn't give me this contract was an improper reason.

[00:16:21] Speaker 01:
After the contract has already been let to someone else.

[00:16:25] Speaker 04:
I don't think that actually there's a requirement that you wait until award.

[00:16:30] Speaker 04:
I believe there's also language about a proposed award.

[00:16:34] Speaker 01:
But that's only if the contract does something in a two-step, if the contracting agency proposes and then finalizes, which is not necessarily

[00:16:44] Speaker 04:
I'm not sure that there are any allegations here that he has bid on anything that wouldn't come from a solicitation.

[00:16:52] Speaker 04:
My understanding is typically the way the government contracting works is there's a solicitation and then you bid on it.

[00:16:56] Speaker 04:
Perhaps there may be some really small value contracts that don't fall into that category.

[00:17:02] Speaker 04:
I'm not entirely sure about that.

[00:17:03] Speaker 04:
But I think what all of Your Honor's questions are getting at is maybe there's some disputes we can have as to whether this was entirely a sufficient process if you wanted to raise a constitutional violation.

[00:17:15] Speaker 01:
But that's not the question.

[00:17:15] Speaker 01:
I'm just trying to understand if it's in the ballpark.

[00:17:17] Speaker 01:
And one of my concerns about the fact that the grounds, the privacy at grounds and other grounds were not raised in the district court is it just hasn't been fleshed out.

[00:17:25] Speaker 01:
It hasn't been fleshed out.

[00:17:27] Speaker 01:
And for example, under the Privacy Act, it sounds like when I read my court's cases on the Privacy Act, and you know, not from things that are in the briefing, that maybe the Privacy Act is a very useful remedy here and would fall in that category of a substitute under Bush versus Lucas and Schweiker versus Chilicki.

[00:17:50] Speaker 01:
For example, can he go to the government and say, look, you're keeping some records, they include information about me, they're wrong, and I want a chance to supplement or challenge those.

[00:18:01] Speaker 01:
That's the kind of thing that sometimes takes place under the Privacy Act, but we need to know how far afield these schemes are, and we don't have much.

[00:18:09] Speaker 04:
So if Your Honor is asking, does he have a Viable Privacy Act claim, I think the answer is we don't know at this stage.

[00:18:15] Speaker 04:
But the really important thing that I want to make sure the Court understands is that's not the right question to ask.

[00:18:19] Speaker 01:
We understand that it doesn't have to be a perfect substitute.

[00:18:22] Speaker 01:
It does not have to provide the exact same remedies.

[00:18:25] Speaker 01:
It doesn't have to provide damages where damages are available.

[00:18:28] Speaker 01:
We understand all of that.

[00:18:30] Speaker 01:
But there is an inquiry.

[00:18:31] Speaker 01:
about whether Congress intended this to be the remedy for claims in this neighborhood.

[00:18:39] Speaker 01:
And that's what I'm asking about.

[00:18:40] Speaker 04:
I would agree with sort of that neighborhood inquiry.

[00:18:43] Speaker 04:
And just as to that, I think the fact that we're even talking about the possibility of a potential Privacy Act claim shows that it's in that neighborhood.

[00:18:50] Speaker 04:
The other thing that it's definitely in the neighborhood is the contractor claims.

[00:18:54] Speaker 04:
And in the contractor's view, if there's one thing that's clear from all the contractor remedies, is that Congress really prioritized injunctive relief

[00:19:01] Speaker 04:
and not damages.

[00:19:02] Speaker 04:
Congress was saying, hey, if we gave this contract to the wrong person, tell us about it quickly while there's time to correct it and give it to the right person.

[00:19:09] Speaker 04:
We don't want to have to pay twice where we have the whole contract performed by A, and then we learn that B comes years later and wants damages because B should have had the contract.

[00:19:17] Speaker 01:
I just have one other question.

[00:19:18] Speaker 01:
Under Wilkie, as you read it,

[00:19:21] Speaker 01:
this court has jurisdiction to decide the Bivens, the scope of the Bivens remedy.

[00:19:28] Speaker 01:
But as I understand that, that's an exercise of pendant appellate jurisdiction.

[00:19:33] Speaker 01:
We also have discretion not to reach that.

[00:19:35] Speaker 04:
I don't read Wilkie that way.

[00:19:37] Speaker 04:
If you read the court's footnote in Wilkie, what the court said was that it is tied up in the qualified immunity analysis.

[00:19:44] Speaker 01:
which is the inquiry for pending appellate jurisdiction, which is where.

[00:19:48] Speaker 04:
I think Wilkie is opposed to Swin versus Chambers County Commission case.

[00:19:52] Speaker 04:
It is.

[00:19:52] Speaker 04:
And I don't understand the Supreme Court in Wilkie to have ever used the words pendant appellate jurisdiction, and instead it said it was tied up in the qualified immunity analysis.

[00:20:04] Speaker 04:
And frankly, I just don't understand, given that, how this court would have any discretion to refuse that.

[00:20:11] Speaker 03:
I actually have a – maybe I'll put this question in a stronger way.

[00:20:15] Speaker 03:
A constitutional decision was reached by the district court in this case, is that right?

[00:20:18] Speaker 03:
That's right.

[00:20:19] Speaker 03:
And the court perhaps could have avoided the constitutional question by deciding the Bivens question first.

[00:20:25] Speaker 03:
It could have.

[00:20:25] Speaker 03:
And I thought that was an obligation on every court to first try constitutional avoidance in a case where it is not clear, at least,

[00:20:33] Speaker 03:
what the constitutional issue is and obviously in this case it's not clear even if it in the end ends up where the plaintiffs want it.

[00:20:40] Speaker 04:
I think there are strong arguments that a court should at the very least avoid constitutional rulings when it can dispose of a case on the ground such as no Bivens remedy and that would be particularly true in a situation where the Bivens defendants would otherwise have to go through discovery that they are entitled not to have to go through because there is no Bivens cause of action.

[00:21:01] Speaker 02:
there are no okay we'll hear from the other side thank you

[00:21:19] Speaker 02:
quote, rather than raising a new issue upon which the district court did not rule, Koch is inducing additional support for his side of the issue and made it include this language, upon which the district court did rule, much like citing a case for the first time on appeal.

[00:21:35] Speaker 02:
Therefore, the Privacy Act argument and

[00:21:40] Speaker 02:
properly before this court and should not be considered.

[00:21:43] Speaker 02:
I take, however, Your Honor's point that on the issue of the Privacy Act, there is not sufficient evidence on this record.

[00:21:51] Speaker 03:
Can I ask why there isn't?

[00:21:56] Speaker 03:
We have the words of the Privacy Act, and we have our own case law, McCready, for example, which finds a Privacy Act violation in an OIG report that is incorrect.

[00:22:09] Speaker 03:
And the words of the Privacy Act provide a cause of action when there is, when an agency fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to, et cetera, et cetera.

[00:22:30] Speaker 03:
Now that on its face seems like it would apply.

[00:22:33] Speaker 02:
Two points, Your Honor.

[00:22:34] Speaker 02:
First of all,

[00:22:37] Speaker 02:
How can that apply to Barry?

[00:22:39] Speaker 02:
How does it apply to an individual who stands up, take the OPM, and instead of going through all the procedures that have been set up for suspension, debarment, adverse responsibility determination, says this man will never work for OPM again, and therefore not the 150 agencies that we worked through.

[00:22:56] Speaker 02:
How is that something that is encompassed by the Privacy Act?

[00:23:00] Speaker 03:
Because it's based on the disclosure of an inaccurate report, which you could sue for, both for the disclosure, but also for the inaccuracies of the report.

[00:23:12] Speaker 03:
And in OPM, if there actually was a de facto debarment, in that circumstance, you could bring an action under the various statutes.

[00:23:21] Speaker 03:
allow you to appeal debarments.

[00:23:23] Speaker 02:
Well, Your Honor is assuming that his determination was not a judgment, that it was based factually on a certain report, which is subject to the Privacy Act.

[00:23:31] Speaker 02:
These are all issues that need to be fleshed out, Your Honor, to determine on discovery if that is in fact accurate.

[00:23:36] Speaker 03:
This argument wasn't even raised by them.

[00:23:39] Speaker 03:
In Libby we said it doesn't even matter if three of the defendants could not even be found liable under the

[00:23:48] Speaker 03:
Privacy Act.

[00:23:49] Speaker 03:
Three of the, I think, five defendants in Libby were protected because they were in the office of the vice president and the president, right?

[00:23:56] Speaker 03:
And we said even if they can't be reached at all, as long as there's a statute that appears to cover at least some of this, the fact that Congress didn't provide even a defendant in the case liability wouldn't end the matter.

[00:24:12] Speaker 03:
So I understand why this isn't on the face of the Privacy Act.

[00:24:17] Speaker 02:
Two reasons, Your Honor, because we're not talking as in Libby, as in McCready, about something which relates specifically to the dissemination of a record.

[00:24:26] Speaker 02:
We are talking about a course of conduct, Your Honor.

[00:24:29] Speaker 02:
We are talking about the fact that they did an IG report.

[00:24:32] Speaker 02:
Then they made the separate, distinct decision to not redact his name, even though they have redacted the names of other individuals.

[00:24:38] Speaker 03:
That's also covered by the Privacy Act, the redaction of the name.

[00:24:41] Speaker 02:
Yes, but then we're talking about a de facto debarment, a cancellation of an OPM contract.

[00:24:46] Speaker 03:
Right, and that can be challenged, the cancellation of the OPM.

[00:24:50] Speaker 03:
We were talking a few minutes ago.

[00:24:52] Speaker 03:
Well, we don't know about situations where things didn't actually happen, but here's something actually happened.

[00:24:57] Speaker 03:
There's a cancellation of a contract.

[00:24:58] Speaker 03:
That can certainly be challenged.

[00:25:01] Speaker 02:
But that is part and parcel of the larger constitutional tort that occurred here, Your Honor.

[00:25:05] Speaker 02:
There's a course of action between DOL, OIG, and DOL and OPM that constituted individually as well as collectively.

[00:25:14] Speaker 03:
You would agree that this is not covered by anything that the Supreme Court has previously said is a constitutional tort, right?

[00:25:22] Speaker 02:
What do you mean by that, Your Honor?

[00:25:24] Speaker 03:
I'm afraid I'm the one supposed to ask you the questions.

[00:25:27] Speaker 02:
No, no.

[00:25:27] Speaker 03:
When you say that, I want to answer them.

[00:25:28] Speaker 03:
I mean, in the meaning of Ziegler versus Rossi, where the court said if the case is different in a meaningful way from previous Bivens cases decided by this court, namely the Supreme Court, then the context is new.

[00:25:43] Speaker 03:
And the court then said, we've done it three times.

[00:25:46] Speaker 03:
A, a claim against FBI agents for handcuffing a man in his house without a warrant.

[00:25:51] Speaker 03:
a claim against a congressman for firing his female secretary, and a claim against prison officials for failing to treat an inmate's asthma.

[00:26:00] Speaker 03:
Anything that's not in those three is a new context.

[00:26:03] Speaker 02:
Your honor, I quibble with that.

[00:26:04] Speaker 02:
I don't think that if you look at the actual test that Ziegler sets forth for what constitutes a new context, it talks about rank of officers.

[00:26:14] Speaker 02:
It talks about the constitutional right at issue.

[00:26:17] Speaker 02:
It talks about the generality or specificity of the official action.

[00:26:21] Speaker 03:
Well, I think that's the way we used to read these things.

[00:26:25] Speaker 03:
But that's not the indication of Ziegler, that we're supposed to continue to read it that way.

[00:26:29] Speaker 02:
That is the language from Ziegler.

[00:26:31] Speaker 03:
Show me that language.

[00:26:33] Speaker 02:
I can cite it to you, Your Honor.

[00:26:35] Speaker 02:
I have Ziegler, and it's also, by the way, contained in Conroy at 2017 opinion by this Court.

[00:26:44] Speaker 02:
where it talks about how you have to look at if it's different in a meaningful way.

[00:26:50] Speaker 03:
So if you want to look at... Well, that is the language from... That's only a quotation of the language from Abbasi, and then it goes on and explains what that means.

[00:26:58] Speaker 02:
Right, Abbasi.

[00:26:59] Speaker 03:
Well, that's Ziegler versus Abbasi.

[00:27:02] Speaker 02:
I was calling it Ziegler, I apologize.

[00:27:03] Speaker 03:
It's all right, it's all right.

[00:27:04] Speaker 03:
For Mr. Ziegler, I think he was a sergeant at arms or something.

[00:27:09] Speaker 03:
Has the Supreme Court ever ruled that a violation of procedural due process is covered by evidence?

[00:27:16] Speaker 02:
I don't believe the Supreme Court has, but certainly this court in Kartseva and the Second Circuit in Arar, citing Tellier, did find that a procedural Fifth Circuit liberty interest was cognizable on the Bivens.

[00:27:34] Speaker 02:
And in FDIC v. Meyer, Judge Thomas noted that whether or not a Fifth Amendment Bivens action is viable depends on the circumstances.

[00:27:45] Speaker 02:
And that is the teacher.

[00:27:46] Speaker 03:
The problem, though, is in Abbasi or Ziegler, it says meaningful way from previous cases decided by this court, not by some other court, not by courts, when the Supreme Court wants to give some deference to

[00:28:07] Speaker 03:
those of us in inferior courts, it knows how to say that.

[00:28:10] Speaker 03:
And often that is the rule in other kinds of situations.

[00:28:15] Speaker 03:
But here, whether you like it or not, the Supreme Court's decision clearly indicated a new way to be thinking about Bivens.

[00:28:28] Speaker 03:
And the first question is whether the Supreme Court has ever found Bivens under these circumstances.

[00:28:38] Speaker 03:
This is not any of the three kinds of cases that the court has ever found a Bivens action.

[00:28:45] Speaker 02:
Respectfully, Your Honor, I don't think that that is the teaching of Abbasi.

[00:28:50] Speaker 02:
I think Abbasi said

[00:28:52] Speaker 02:
that they are disfavored Bivens actions, but not disallowed.

[00:28:56] Speaker 03:
Oh no, I agree with you.

[00:28:58] Speaker 03:
The first question is context and the second question is special circumstances.

[00:29:02] Speaker 02:
That's right.

[00:29:02] Speaker 03:
I'm only asking the first question.

[00:29:04] Speaker 02:
Is this a new context?

[00:29:06] Speaker 02:
As to the first question, I wouldn't concede it's not a new context.

[00:29:09] Speaker 02:
Because if you look, for example, at Davis v. Passman.

[00:29:12] Speaker 03:
You wouldn't concede it is a new context.

[00:29:14] Speaker 02:
That's right.

[00:29:15] Speaker 02:
If you look at Davis v. Passman, it was actually brought under the due process clause of the Fifth Amendment.

[00:29:20] Speaker 03:
It was actually brought under the equal protection clause.

[00:29:23] Speaker 02:
But if you look at the actual language of it, it says this is an action under the due process clause of the Fifth Amendment.

[00:29:29] Speaker 01:
The equal protection guarantees through equal protection.

[00:29:33] Speaker 01:
Bowling versus Sharp.

[00:29:34] Speaker 03:
Reverse incorporated.

[00:29:35] Speaker 02:
But I understand the point, Your Honor.

[00:29:37] Speaker 02:
But my point is that if you look at the factors, which I cited earlier, for what constitutes a new context for Abbasi, really, LIF falls cleanly within these.

[00:29:48] Speaker 02:
The only one that's really an issue is whether or not a new constitutional right is at issue.

[00:29:54] Speaker 02:
And I think it's a close question when you look at Davis v. Passman.

[00:29:58] Speaker 02:
But even if this court were to say under Abbasi, all right, there is a new context here in LIF,

[00:30:04] Speaker 02:
That's not the end of the analysis, obviously.

[00:30:06] Speaker 02:
Then you go into basically the will-be factor of whether or not there's an adequate alternative remedy or whether or not there's special factors.

[00:30:15] Speaker 02:
And there, the adequate alternative remedy, if you look at what this court has taught, not this court, but the Supreme Court has taught in Bush and Schweiker v. Chilicki and all these cases, those cases are all based on indubitably comprehensive schemes for administering public rights.

[00:30:34] Speaker 02:
and providing remedies for those who don't have those rights provided.

[00:30:39] Speaker 03:
What do you think about Libby, then?

[00:30:41] Speaker 02:
About, I'm sorry, which?

[00:30:42] Speaker 03:
Libby.

[00:30:43] Speaker 02:
Well, Libby involves the Privacy Act, Your Honor, and Your Honor had asked earlier about the Privacy Act.

[00:30:47] Speaker 03:
No, no, but you said those other cases all involve comprehensive rights that provide, but Libby made clear that it doesn't have to provide rights for all the defendants, doesn't have to provide rights for all the kinds of claims that the person's making, right?

[00:31:03] Speaker 02:
Fair enough, Your Honor.

[00:31:04] Speaker 02:
I looked at the comprehensiveness of the remedy, not the adequacy of the remedy, and I recognize that language in Libby.

[00:31:09] Speaker 02:
But when you look at the issue, you say to yourself, and a bossy teacher, is there a reason to believe that Congress has essentially occupied the field in this area?

[00:31:20] Speaker 01:
Well, here we're talking about an ostensibly incorrect report

[00:31:26] Speaker 01:
Why is the Privacy Act not a very well-matched scheme for addressing that?

[00:31:33] Speaker 01:
Somebody says, wow, this Inspector General report in the process of investigating Zip Johnson has included a lot of things that are incorrect about me, so I want to go to those

[00:31:47] Speaker 01:
record holders and tell them, you have inaccurate information, let me address it.

[00:31:53] Speaker 01:
It seems like that's just the kind of relief that one would, in the absence of Privacy Act, be seeking under procedural due process.

[00:32:01] Speaker 01:
But this scheme is more particular, more tailored to government record retention.

[00:32:09] Speaker 02:
Why isn't it fitting?

[00:32:12] Speaker 02:
Because as in Libby, Your Honor, the course of conduct that is alleged in that complaint

[00:32:17] Speaker 02:
goes far beyond what Libby was about, which was the disclosure of a fact of covert operative status.

[00:32:25] Speaker 02:
The same thing was true in McGreeve.

[00:32:27] Speaker 02:
It involved an IG report, but in that case, that was it.

[00:32:31] Speaker 02:
And the same thing in Downing.

[00:32:34] Speaker 01:
And the fact that there might be that level of factual distinction helps you how?

[00:32:41] Speaker 02:
Those cases are limited to the application of the Privacy Act for the Act of Disclosure.

[00:32:48] Speaker 02:
What we have here is not simply the Act of Disclosure.

[00:32:52] Speaker 02:
We have the Act also of a publication which we look at crooks and pain.

[00:32:56] Speaker 02:
You were asking earlier, Your Honor, about Siger and whether or not there's a line between Siger and Quetzalba.

[00:33:02] Speaker 02:
One of the lines that I believe is important to distinguish and take into account here is the fact that they publicize a report.

[00:33:12] Speaker ?:
If you look at crooks and you look at pain,

[00:33:17] Speaker 02:
publication was very important to take it from a sort of sticker position to a stigma plus position.

[00:33:29] Speaker 02:
at the array of actions that happens here.

[00:33:32] Speaker 02:
You've got a DOLOIG report, which is infirmed from the job.

[00:33:36] Speaker 02:
But then they make the decision not to redact his name, even though they redacted a lot of other people's names.

[00:33:42] Speaker 02:
And then they publicize it on the web.

[00:33:44] Speaker 02:
And then they get a DOLOIG report to come back and not have to expand.

[00:33:49] Speaker 01:
But wouldn't the remedy for that for Mr. Liff

[00:33:53] Speaker 01:
be to fix that information so that it no longer is, as a virus, continuing to infect his future opportunities.

[00:34:03] Speaker 02:
But, Your Honor, respectfully, at that point, what happened was a train of events that led to him being defactoed to bar, broadly secluded under the language of Sarceva.

[00:34:17] Speaker 02:
Let me flip it.

[00:34:26] Speaker 01:
What's the remedy you would think would be appropriate?

[00:34:28] Speaker 02:
I noticed.

[00:34:32] Speaker 01:
Can you tell us in terms of injunctive relief?

[00:34:40] Speaker 02:
Is there any case that we've decided or the Supreme Court has decided that affords that kind of relief for a due process, procedural due process violation?

[00:35:04] Speaker 02:
That's a separate question.

[00:35:10] Speaker 01:
And your compensatory damages flow from what?

[00:35:13] Speaker 01:
And those are actual damages that he would prove the value of contracts that he would have obtained but for

[00:35:28] Speaker 01:
this reputational harm.

[00:35:30] Speaker 02:
Well, yes, Your Honor.

[00:35:30] Speaker 02:
If you look in the complaint, I have set forth the actual percentages, the amount of money that he lost in the before and after dictionary.

[00:35:37] Speaker 02:
He lost 97% of his income.

[00:35:40] Speaker 02:
He is just a government contractor.

[00:35:42] Speaker 02:
He doesn't have a stock.

[00:35:44] Speaker 02:
He is an HR government contractor.

[00:35:47] Speaker 02:
Immediately upon the issuance of this report, his business took a complete nosedive.

[00:35:54] Speaker 02:
The coup d'etat was when they cancelled the OPM contract and then stood up without any concept, how can it be, Your Honor, that the Privacy Act would encompass an action by defendant Barry standing up without going through any of the very detailed comprehensive decisions to be barring somebody?

[00:36:11] Speaker 02:
But what about all the contract remedies?

[00:36:14] Speaker 02:
Well, those, Your Honor, relate to the contract, if the dispute about contract was something that arises from a contract.

[00:36:22] Speaker 02:
But as in Nabab's Safavid, which is a very important case that this court affirmed the denial of a motion to dismiss by Judge Huvel, there, there was a First Amendment and a Fifth Amendment taken section.

[00:36:34] Speaker 02:
And Judge Ubell, they raised the exact same argument, that the CDA precluded.

[00:36:40] Speaker 02:
And she said, no, the source of the right is the constitutional violation, not a dispute relating to contract.

[00:36:49] Speaker 02:
I mean, the idea that the government has here, that these various bars and contracts

[00:36:54] Speaker 02:
cure the magnitude of what has occurred.

[00:36:57] Speaker 02:
This isn't Lyft saying, I dispute the administration of this contract.

[00:37:02] Speaker 02:
I dispute the bid protest here.

[00:37:04] Speaker 02:
And to the point asked earlier where they said, well, can't you stand up and do a bid protest?

[00:37:11] Speaker 02:
If you look at one of the cases cited, which I believe is maybe Nebraska beef,

[00:37:16] Speaker 02:
There they said in the context of an individual bid dispute, you can make a claim that you've been debarred, but we will not get to the underlying issue of whether or not the debarment should be declared a nullity.

[00:37:36] Speaker 02:
There is no argument, I think, that is credible here that the CDA somehow cures the entire magnitude of the constitutional violation it issued on it.

[00:37:50] Speaker 03:
I think... I think we're out of time unless the judges have questions.

[00:37:54] Speaker 03:
Thank you.

[00:37:55] Speaker 02:
Thank you, Judge.

[00:37:57] Speaker 03:
And is Mr. Schulz on it?

[00:38:00] Speaker 03:
Okay, we'll give you one.

[00:38:03] Speaker 03:
He went over one minute and 30 seconds.

[00:38:05] Speaker 03:
You can have one minute and 30 seconds as well.

[00:38:12] Speaker 04:
Thank you, Your Honor.

[00:38:13] Speaker 04:
I just wanted to spend one minute explaining why I think this court can reach the Privacy Act.

[00:38:17] Speaker 04:
In particular, I know the court is concerned about the possibility of waiver, but there's two facts about this case that make it rather unique.

[00:38:23] Speaker 04:
One is that this is an interlocutory appeal, and nobody disputes that.

[00:38:27] Speaker 04:
At summary judgment, the defendants would be able to raise the Privacy Act.

[00:38:30] Speaker 04:
And given that it's a pure question of law, the most efficient thing to do would be for the court to just rule on it now.

[00:38:35] Speaker 04:
But even if the court is concerned about backgrounds,

[00:38:37] Speaker 04:
Another fact that makes this case extraordinarily unique is that the district court never actually rejected our argument about Bivens.

[00:38:43] Speaker 04:
It just said that it wasn't going to rule on whether or not Bivens was available at all because it thought that the plaintiff had stated a very, very marginal due process claim.

[00:38:53] Speaker 04:
And I think those two facts together make this sufficiently unique case that this court should exercise its discretion and rule on the Privacy Act grounds.

[00:39:00] Speaker 01:
That's why I wondered if you didn't seek reconsideration and point to Wilkie and say, look, this is something that is part and parcel of the qualified immunity issue, and therefore, if you're denying on that, you really need to pass on this.

[00:39:12] Speaker 04:
Your Honor, as this court will know, it's discretionary whether or not to file a reconsideration motion.

[00:39:17] Speaker 04:
We understood the district court's order as basically inviting a reconsideration motion on the statute of limitations issue, which the court thought had been sufficiently briefed, and we directed our attention to that issue.

[00:39:28] Speaker 04:
I understand.

[00:39:30] Speaker 04:
I'd be happy to address any of the other things if the court has questions otherwise.

[00:39:34] Speaker 04:
We'll take the matter under submission.

[00:39:35] Speaker 04:
Thank you very much.