[00:00:07] Speaker 00:
Good morning, Your Honors, and may it please the Court, Vice Walters for the individual defendants.

[00:00:26] Speaker 00:
As the Supreme Court has long recognized, if there are reasons to think that Congress might doubt the efficacy or necessity of a damages remedy against individual federal officers, courts refrain from creating such a remedy.

[00:00:39] Speaker 00:
And when Congress has created any alternative existing process for protecting major parties' interests, that alone will preclude extension of dividends.

[00:00:47] Speaker 00:
Congress, in enacting the statutory process governing financial enforcement proceedings, struck a delicate balance between protecting the national banking system and encouraging vigorous enforcement of the banking laws on the one hand, and giving adequate process and protection for those in administrative enforcement proceedings and those who work in the banking industry on the other hand.

[00:01:09] Speaker 04:
And Congress did not instruct... How is the banking scheme different from any other context in which

[00:01:18] Speaker 04:
an administrative agency might take enforcement action, and if they do, there are administrative protections, and at the end of the administrative process, there are rights of judicial review.

[00:01:32] Speaker 00:
I think it is significant, Your Honor, that this is a unified scheme.

[00:01:37] Speaker 00:
The Eighth Circuit in Sinclair against Hawke in looking specifically at FURIA and the banking context

[00:01:44] Speaker 00:
noted that Congress did – they pointed to a Senate report saying that, you know, we were paying attention to this careful trade-off on either side.

[00:01:52] Speaker 00:
And of course, ultimately, the special factors inquiry is a context-by-context one.

[00:01:56] Speaker 00:
There may be other administrative areas that would similarly reflect this sort of balancing and this careful attention to what processes – I'm sorry.

[00:02:05] Speaker 03:
Putting aside Egypt, the balancing is what exactly?

[00:02:10] Speaker 03:
The person accused can defend himself?

[00:02:13] Speaker 00:
Well, Your Honor, the question is, of course, not exactly what sort of remedies are offered, but what sort of processes available to protect the interest.

[00:02:24] Speaker 00:
And Mr. Lumier ultimately is alleging that he was subjected to a baseless enforcement proceeding, and there's no question

[00:02:31] Speaker 02:
that Congress did give protections to protect the constitutional and other interests of the – The allegation that he is subject to a baseless enforcement proceeding or that he is subject to a baseless enforcement proceeding because he exercised his First Amendment rights?

[00:02:47] Speaker 00:
That's absolutely right, Your Honor.

[00:02:49] Speaker 00:
There is also, of course, a retaliatory allegation.

[00:02:53] Speaker 00:
But under cases like Schweiker against Chalicki, there doesn't need to be a specific remedy for the First Amendment aspect of the harm.

[00:03:03] Speaker 00:
I mean, in that case, the Social Security applicants had no constitutional remedy at all.

[00:03:10] Speaker 00:
The only thing that they could get was what they should have gotten through the process initially, which was their Social Security benefits.

[00:03:17] Speaker 00:
And the Supreme Court made very clear that the fact that

[00:03:22] Speaker 00:
there was no additional remedy for the constitutional harm was irrelevant.

[00:03:26] Speaker 00:
And the same is very much true here.

[00:03:27] Speaker 00:
There's – there was certainly a process for protecting against baseless enforcement actions, and although there may not have been a specific harm – a specific remedy directed to the First Amendment aspects of Mr. Lumier's harm, that nonetheless will serve to preclude a Bivens remedy.

[00:03:51] Speaker 02:
selected out of hundreds of other people purely because of his First Amendment reasons?

[00:04:00] Speaker 00:
I'm not entirely sure there would be a cognizable First Amendment claim in the first place in that case, Your Honor.

[00:04:07] Speaker 02:
I mean, in cases... What if the agency announced, we are only going to be prosecuting Democrats?

[00:04:15] Speaker 02:
We're only going to be prosecuting Republicans?

[00:04:18] Speaker 02:
We're only going to be prosecuting people who criticize the agency?

[00:04:22] Speaker 02:
We're going to be selecting those out of all the possible acceptable cases.

[00:04:28] Speaker 02:
Do you think that's constitutional?

[00:04:30] Speaker 00:
I don't think that that is a constitutional action, Your Honor.

[00:04:33] Speaker 00:
But obviously, I mean, the same thing would be true in the criminal sphere if prosecutors announced that they would only be doing that.

[00:04:40] Speaker 00:
But there still, of course, is not a retaliatory prosecution claim if there is probable cause to bring the prosecution.

[00:04:45] Speaker 02:
Well, that's not true.

[00:04:46] Speaker 00:
There is a selector prosecution claim for outrageous government conduct.

[00:04:50] Speaker 00:
Well, in that case, perhaps the same would be true in a case like this, Your Honor.

[00:04:55] Speaker 00:
But of course, that isn't the sort of claim, and this court would not need to make any sort of a ruling as to those sort of facts in a context like this, where the claim is ultimately fairly run of the mill.

[00:05:06] Speaker 00:
The agency instituted enforcement proceedings against me because they didn't like my speech.

[00:05:13] Speaker 00:
And as noted, Congress has provided remedies for people who are in these sort of proceedings.

[00:05:20] Speaker 00:
and is certainly protected – created an alternative existing process.

[00:05:24] Speaker 00:
Because, of course, decisions like Wilson v. Libby make clear that there need not even be a remedy available to that particular individual.

[00:05:33] Speaker 00:
The important thing is that the design of the schemes suggests that there are adequate protections in place from a process standpoint.

[00:05:45] Speaker 03:
We were not willing to assess the adequacy.

[00:05:49] Speaker 00:
That's absolutely – apologies, Your Honor – that Congress has created a process for protecting the rights.

[00:05:55] Speaker 00:
This Court, of course, does not second-guess Congress's decision as to the adequacy of a process created.

[00:06:00] Speaker 03:
That assumes, though, that there's some reasonable inference that Congress thought it was remedying the issue, or at least may have thought it was remedying the issue.

[00:06:11] Speaker 03:
What problem?

[00:06:13] Speaker 00:
Your Honor, I don't think that is done on a constitutional right by constitutional right basis.

[00:06:18] Speaker 00:
The question is, as in cases like Schleicher or this court's decision in Spagnola, whether there is an adequate process for protecting the injured party's interests.

[00:06:31] Speaker 00:
It doesn't have to be that it is protecting that particular constitutional right, so long as the harm done is encompassed within the scheme.

[00:06:38] Speaker 00:
So in the Spagnola case, for instance,

[00:06:41] Speaker 00:
that there was a claim that the harm done was outside of the scheme, and this court, sitting en banc, said that because the scheme, in one fashion or another, speaks affirmatively to claims such as plaintiffs by condemning the underlying actions as prohibited personnel practices, that that was enough to prove Griffin's remedy there.

[00:07:07] Speaker 04:
Just the generality

[00:07:10] Speaker 04:
of both the APA and EGIA make any difference.

[00:07:14] Speaker 04:
It's a little bit hard to think of the Congress that enacted those statutes as carefully weighing the pros and cons of deterring banking regulators.

[00:07:26] Speaker 00:
Well, I think certainly in enacting Feria, there was an understanding that the ICHA process would be part of the administrative remedies available.

[00:07:34] Speaker 00:
And of course, there need not be a unified congressional intent.

[00:07:37] Speaker 00:
I mean, the court's decision in Lyft very recently made clear that you can look at the gestalt of all the remedies and processes available.

[00:07:45] Speaker 02:
Well, I guess with respect to the APA, it's expressly incorporated in Feria.

[00:07:49] Speaker 00:
That's absolutely right, Your Honor.

[00:07:52] Speaker 00:
So I think that that is a particularly powerful combination where you have this sort of backdrop of processes against which Congress is legislating, and then here they are enacting a particular unified scheme for regulation of a particular industry, in this case the banking industry, and seeking to weigh the various concerns on each side there.

[00:08:16] Speaker 03:
You were unable to find any case addressing the presence or absence of Egypt to this problem.

[00:08:24] Speaker 03:
And I gather from your brief, same truth of view.

[00:08:27] Speaker 03:
Do you have any explanation for that?

[00:08:31] Speaker 00:
Well, Your Honor, there aren't a tremendous number of cases in general in which people have sought to bring retaliatory enforcement perceiving claims in the administrative context.

[00:08:44] Speaker 00:
And I think that's probably one of the reasons that the court doesn't see a great deal of reference to EGN and other cases.

[00:08:51] Speaker 00:
And I think that's actually significant, because to open up the floodgates here and say that there is a First Amendment retaliation claim in administrative enforcement proceedings would potentially have a very significant effect, certainly.

[00:09:06] Speaker 03:
Both parts of your answer should be contradicted themselves, because if these things are rare,

[00:09:13] Speaker 03:
problem of retaliatory pursuit in the administrative context, we'd see a lot of cases raising the Egypt matter.

[00:09:23] Speaker 00:
Well, I'm not sure that they would be rare if this court were to go ahead and recognize a remedy in this context.

[00:09:29] Speaker 00:
I think that there would likely be quite a number of cases going forward.

[00:09:33] Speaker 00:
In the past, there have not been.

[00:09:34] Speaker 00:
And I think that's because the Supreme Court has made fairly clear that courts should hesitate to enact

[00:09:41] Speaker 00:
additional livings remedies, particularly in cases like this where you do have a complex remedial scheme available.

[00:09:51] Speaker 02:
Do you want to say something about Iqbal?

[00:09:54] Speaker 00:
Absolutely, Your Honor.

[00:09:56] Speaker 00:
So in many ways, this case is very much on fours with something like Iqbal or Twombly.

[00:10:03] Speaker 00:
there is no, for instance, real explanation of what these individual defendants did then?

[00:10:10] Speaker 02:
I'm sorry.

[00:10:11] Speaker 04:
I mean, not really, because Iqbal turned on the very obvious alternative explanation that what was being done was in response to a national emergency and in response to the specific makeup of those attackers.

[00:10:30] Speaker 00:
I mean, certainly that was a part of that case, but the court also made clear that there had to be specific well-pleaded allegations saying what each individual defendant had done to violate the Constitution, and that's entirely absent here.

[00:10:45] Speaker 00:
This is ultimately a retaliatory inducement case.

[00:10:48] Speaker 00:
That is, no one is contending that these defendants had charging authority, and so the claim is that they somehow induced the OCC to bring these charges, but there's just... But they have...

[00:10:59] Speaker 04:
specific nonconclusory facts that would seem to support a reasonable inference of bad motive, just at the pleading stage.

[00:11:13] Speaker 04:
We have to accept as true the nonconclusory allegations that

[00:11:19] Speaker 04:
The regulators said some ugly things, and Mr. Lumiere had overheard that and went to the IG's office.

[00:11:28] Speaker 04:
That's all correct, Your Honor.

[00:11:30] Speaker 04:
And that would support a reasonable inference that they might have had it out for him.

[00:11:34] Speaker 00:
I'm not sure that's true, Your Honor.

[00:11:35] Speaker 00:
To be clear, the letters talking about people who said, as you said, some ugly things don't suggest that it was any of these defendants who said the ugly things.

[00:11:44] Speaker 00:
Indeed, there's no actual reason to believe that these defendants even knew about these letters.

[00:11:51] Speaker 03:
And of course, shortly after these letters were sent, the OIG then sent... Apparently, that was in an arrangement between the OIG and the Office of Control of the Currency that OIG would drop in, in exchange for OCC taking it up.

[00:12:10] Speaker 00:
That is the allegation, Your Honor, but I think it's at least telling as to whether there would be a desire five years later to retaliate by these individuals who were not named in these letters that then never led to an investigation.

[00:12:30] Speaker 03:
extremely imprudent for these people to proceed against Mr. Lignette, while it was uncertain whether there was any case at all against the bank officers.

[00:12:46] Speaker 03:
That would be astonishing for them to do that.

[00:12:51] Speaker 03:
I can't wait until you've collected the sculpture

[00:12:58] Speaker 03:
supposedly after, and then go after the others.

[00:13:03] Speaker 00:
Perhaps so, Your Honor, but it does seem, at least under this court's precedent, somewhat probative that they did wait five years to retaliate, apparently, for these two letters.

[00:13:13] Speaker 03:
It might in some circumstances, but I don't think in these circumstances it's particularly mystifying.

[00:13:20] Speaker 00:
And again, I just wanted to return to the idea that there is no actual explanation of why

[00:13:25] Speaker 00:
these three defendants out of anyone who works at the OCC, the only thing that these people really have in common is that they worked on both investigations, which isn't particularly surprising insofar as one investigation was the outgrowth of the other investigation.

[00:13:40] Speaker 00:
But there's no specific allegations as to why one of them, out of all the people who work at the OCC, it might have been embarrassed and angered at general allegations relating to the Hamilton.

[00:13:52] Speaker 00:
why these three were the ones who were particularly angered and why these three, what action they actually took to induce the OCC to bring charges.

[00:14:03] Speaker 02:
So you're focusing on what I regard as the second step in ICMA.

[00:14:08] Speaker 02:
ICMA was clear that there are two steps.

[00:14:10] Speaker 02:
One is you have to specifically identify what the acts are that the actual defendants did.

[00:14:16] Speaker 02:
And then after that, you have to discuss plausibility, which is what we've discussed here.

[00:14:22] Speaker 02:
On the question of what acts they actually did, do we know who signed the complaint or however a complaint is made against a, in a banking circumstance, against Mr. Lumière?

[00:14:35] Speaker 00:
I'm not certain, Your Honor.

[00:14:36] Speaker 00:
I can check on that.

[00:14:37] Speaker 00:
I believe it probably would have been Mr. Shrauss, who's been dismissed from this case, probably would have been the sider.

[00:14:44] Speaker 00:
It wasn't any of the remaining?

[00:14:45] Speaker 00:
I don't believe so, Your Honor, but I can go back and check on that.

[00:14:53] Speaker 00:
And certainly, of course, there's no allegation here that any of these individuals signed the complaint, at least not that I was able to see in plaintiff's complaint.

[00:15:08] Speaker 00:
And Mr. Raerden testified at the proceeding, but the other two, there's just these very general allegations that they were influential in the proceeding and influenced the proceeding, and I think that that is a sort of step one of the Iqbal inquiry problem.

[00:15:27] Speaker 04:
Why doesn't the complaint survive at least as to Reardon on that issue, on personal involvement?

[00:15:35] Speaker 00:
So even as to Mr. Reardon, the only thing that they really say, again, specific is that he testified as an expert witness at the proceeding.

[00:15:44] Speaker 00:
And again, that's not an inducement to bring a retaliatory enforcement action.

[00:15:51] Speaker 00:
That's just testimony as an expert witness.

[00:15:56] Speaker 01:
I would like to start with Avivin's issue, if possible.

[00:16:12] Speaker 01:
And I want to remind myself and everyone else that this is a retaliatory prosecution claim.

[00:16:20] Speaker 01:
This is not a claim based on an ordinary enforcement of the statute.

[00:16:27] Speaker 01:
This is a case that involves, if the facts that I allege are correct, and if I can prove them as I believe I can, this case involves a fraud on the courts and on the judicial system, because this is a case that should never have been brought.

[00:16:44] Speaker 01:
Now, that's very important for a couple of reasons.

[00:16:47] Speaker 01:
One of them is that

[00:16:49] Speaker 01:
When the question is – and the appellants raise the question of – they quote Abbots, he's saying, the question is, who should decide whether to provide the damages remedy, Congress or the courts?

[00:17:02] Speaker 01:
In a situation where you're dealing with a fraud on the courts, it is much more the court's jurisdiction to examine that fraud, that alleged fraud, and decide whether there should be a penalty on it rather than Congress.

[00:17:16] Speaker 01:
You cannot assume that Congress in enacting a statute contemplates the possibility that the statute is going to be misapplied in a retaliatory prosecution that should never have been brought.

[00:17:30] Speaker 04:
I would think most defendants in enforcement proceedings feel pretty strongly that the charges against them are baseless and must reflect some

[00:17:44] Speaker 04:
nefarious motive on the part of the government.

[00:17:49] Speaker 01:
I think, Your Honor, you're going to the plausibility issue now?

[00:17:52] Speaker 04:
I'm going to, I guess, the sensitivity of applying Bivens in this context of enforcement, which is very different from the FBI agents in Bivens itself or the prison guards in, I guess, Carlson.

[00:18:12] Speaker 01:
There's a case that just came down from the Ninth Circuit that I would like to refer you to.

[00:18:17] Speaker 01:
Let Nusa be love.

[00:18:18] Speaker 01:
And it was a... I'm sorry.

[00:18:21] Speaker 02:
Have you submitted a... No, I have not.

[00:18:23] Speaker 02:
All right.

[00:18:24] Speaker 02:
So when you argue about a new case, you have to give the other side an opportunity.

[00:18:28] Speaker 01:
Oh, okay.

[00:18:28] Speaker 02:
So if you want to submit a, what we call a 28-J letter, that'll be fine.

[00:18:32] Speaker 02:
Okay.

[00:18:33] Speaker 02:
And cite the case and provide a copy to the other side.

[00:18:36] Speaker 01:
So I do that afterwards?

[00:18:38] Speaker 01:
Afterwards, yeah.

[00:18:39] Speaker 02:
Okay.

[00:18:39] Speaker 02:
You should do it before, but you can do it afterwards.

[00:18:42] Speaker 01:
I apologize.

[00:18:42] Speaker 01:
I'm not an expert in this procedure.

[00:18:46] Speaker 01:
That's all right.

[00:18:49] Speaker 01:
This case involves – again, we go back to the question of who should decide whether damages are appropriate here or not.

[00:19:02] Speaker 01:
It is not plausible, if I may use that word, to think that Congress, when it enacted FIREA or any other statute, is thinking about the possibility that government officials may take that statute and misapply it in a retaliatory prosecution.

[00:19:19] Speaker 01:
And that process, as I said, is a fraud on the courts, and it's something that attacks the integrity of the judicial system and the judicial process.

[00:19:30] Speaker 01:
And therefore, it's something that the courts themselves should be very concerned about and where the courts logically are just as qualified or more qualified than Congress to fix the remedies that

[00:19:46] Speaker 01:
Could you develop your theory as to why it's a fraud on the courts?

[00:19:50] Speaker 01:
Because it's a case that should never have been brought, Your Honor.

[00:19:54] Speaker 03:
It's a case that was brought to Kansas suggested, but a lot of people must feel bad as to cases brought against them.

[00:20:00] Speaker 03:
Yes.

[00:20:02] Speaker 03:
And the courts can provide relief on a much lower relief in the sense of setting aside the order on a much more

[00:20:13] Speaker 03:
not defendant-prosecutee-friendly standard than is necessary in a retaliatory prosecution case?

[00:20:23] Speaker 01:
Your Honor, I submit that you can't have a retaliatory prosecution case, which is also an ordinary enforcement of a statute.

[00:20:32] Speaker 01:
Because to have a retaliatory prosecution case, I am going to have to prove that there was no probable cause, that there was retaliatory motive,

[00:20:41] Speaker 01:
And there was fraudulent inducement of the prosecution.

[00:20:45] Speaker 01:
Those are the conditions in Hartman against Moore.

[00:20:48] Speaker 01:
If those conditions are present, then you do not have a standard enforcement of a statute by an agency.

[00:20:57] Speaker 01:
And that's why I say that this case falls outside the statute.

[00:21:02] Speaker 01:
It really could happen with any statute where

[00:21:12] Speaker 01:
for reasons of retaliation, an agency chooses to misapply the statute and abuse the statute and abuse the judicial process.

[00:21:22] Speaker 01:
And that is what I contend that happened here, and I know I will have to prove it.

[00:21:27] Speaker 01:
But if I prove it, then this is not really about FIREA, it's about what happened

[00:21:34] Speaker 01:
in terms of the misuse of the judicial process.

[00:21:37] Speaker 02:
But you do have a remedy with respect to your injury that is, on appeal under the APA, you could argue that you were selectively prosecuted.

[00:21:51] Speaker 02:
That is, that you were prosecuted because

[00:21:57] Speaker 02:
of your First Amendment right as retaliation.

[00:22:00] Speaker 02:
In Trudeau, we said that was a potential cause of action under the APA.

[00:22:04] Speaker 02:
It just doesn't lead to money damages, but you do have relief.

[00:22:08] Speaker 02:
You get out from under the sanction.

[00:22:11] Speaker 01:
Well, I don't, Your Honor, because I didn't lose at the agency level.

[00:22:15] Speaker 02:
Yes, that's right.

[00:22:16] Speaker 02:
So you have two ways of winning.

[00:22:17] Speaker 02:
One is to show it's baseless, and another to show that it was retaliatory.

[00:22:22] Speaker 02:
And you succeeded in the first, so you didn't need the second.

[00:22:26] Speaker 01:
Well, but that goes back to the reasoning of the appellant, which is any time you're sued under a statute and you win, the statute itself is your alternative remedy.

[00:22:37] Speaker 01:
The fact that you won is your alternative remedy.

[00:22:39] Speaker 01:
And that doesn't make any sense because then you could never have retaliatory prosecution because if you win, the statute was your alternative remedy.

[00:22:48] Speaker 01:
And if you lose, well, you lost.

[00:22:50] Speaker 01:
You were properly found responsible.

[00:22:53] Speaker 01:
So I don't see how the statute, which is used to attack you, can itself be your alternative remedy.

[00:23:00] Speaker 01:
And there is no other remedy, if I remember, there was no action I could have taken of any type.

[00:23:05] Speaker 01:
Moreover, it's clear that I fell outside the statute.

[00:23:09] Speaker 01:
So the statute was being applied to someone to whom it did not even apply on his face.

[00:23:15] Speaker 01:
So I'm just saying that that's additional.

[00:23:20] Speaker 04:
Well, not really, because the reason why the charges against you were dismissed was the conclusion that your reports didn't harm the bank, right?

[00:23:41] Speaker 01:
Yes, you're right.

[00:23:42] Speaker 04:
Well, it was... If they had found that

[00:23:44] Speaker 04:
your reports that harmed the bank, you were a lawyer for the bank.

[00:23:50] Speaker 04:
You had fiduciary duties under the law as it existed at the time.

[00:23:55] Speaker 04:
They could have gone after you on that basis.

[00:23:59] Speaker 01:
Your Honor, this is a very unique, as you know, this report has already found that there was no substantial justification for the case against me.

[00:24:07] Speaker 04:
Because the reports didn't harm the bank.

[00:24:09] Speaker 01:
Well, that's right.

[00:24:10] Speaker 01:
But here's the thing.

[00:24:12] Speaker 04:
But that seems different from, like, there's a scheme that regulates lawyers and the government uses it to go after a doctor.

[00:24:21] Speaker 01:
I understand, Your Honor, but here's the thing.

[00:24:23] Speaker 01:
The statute had certain requirements before you could proceed against someone.

[00:24:29] Speaker 01:
One of them was what you just touched on, more than a minimal financial loss to the institution.

[00:24:35] Speaker 01:
The government never even tried to prove that.

[00:24:37] Speaker 01:
They never tried to establish it.

[00:24:39] Speaker 01:
And then, most embarrassing,

[00:24:42] Speaker 01:
when the agency head ruled, he ruled you had it wrong all along.

[00:24:47] Speaker 01:
Now ask yourselves, why is it that an agency pursues a case like this, prosecutes a case like this for a couple of years without first going internally to their own staff and their own general counsel and asking them, what is the standard?

[00:25:07] Speaker 01:
It's extraordinary when you think about it that they prosecuted me for two years, and they did not know what standard was within their own agency's contemplation what the standard was for damages.

[00:25:21] Speaker 01:
And it's a remarkable situation, really.

[00:25:25] Speaker 01:
And it's one of those other- Are you suggesting that government sloppiness is terribly unusual?

[00:25:32] Speaker 01:
I'm suggesting that this is-

[00:25:35] Speaker 01:
Your Honor, I'm suggesting that this was more than sloppiness.

[00:25:38] Speaker 01:
I think that they knew from the beginning that there had been no more than minimal financial loss to the institution.

[00:25:45] Speaker 01:
And it didn't matter because they were going to make me pay.

[00:25:51] Speaker 01:
And if you read the complaint, if you look at the complaint over and over again, and you look at the things that happened during the trial, they were shameful.

[00:26:00] Speaker 01:
They were shameful.

[00:26:02] Speaker 01:
They were an abomination in terms of judicial process.

[00:26:05] Speaker 01:
They should never have happened, and they cannot be explained other than that something very, very strange was going on here.

[00:26:14] Speaker 02:
Can I ask you about the – again, I think that is the second Iqbal question, and the first Iqbal question is this.

[00:26:23] Speaker 02:
Iqbal says, the plaintiff must plead that each government official defendant, through the officials' own individual actions, has violated the Constitution.

[00:26:33] Speaker 02:
What is the specific

[00:26:35] Speaker 02:
place that you would point me to in the complaint where you make a specific claim about the defendant.

[00:26:43] Speaker 01:
Okay.

[00:26:43] Speaker 01:
There are – there's a series of paragraphs.

[00:26:45] Speaker 01:
Tell me – if you tell me the paragraph, that would help.

[00:26:48] Speaker 01:
Okay.

[00:26:48] Speaker 01:
44, 52, 56, 61, 64.

[00:26:51] Speaker 01:
All right.

[00:26:52] Speaker 01:
Hold on, hold on.

[00:26:53] Speaker 02:
One at a time.

[00:26:54] Speaker 02:
What's the first one?

[00:26:55] Speaker 02:
44.

[00:26:56] Speaker 02:
Okay.

[00:26:57] Speaker 01:
And what is it in 44 that's – Well, I don't have a complaint here, but I did take all these down.

[00:27:01] Speaker 02:
Do you have your appendix there?

[00:27:02] Speaker 02:
It's in the appendix.

[00:27:12] Speaker 02:
So what I'm looking for here is, since the allegation is that the agency retaliated – that these defendants retaliated against you for your first amendment, you need a specific allegation of what each defendant did.

[00:27:32] Speaker 02:
And I just want to begin by saying I'm finding it difficult to find that.

[00:27:35] Speaker 02:
That's why I'm asking it.

[00:27:38] Speaker 01:
What the defendants did, Your Honor – let me go back.

[00:27:41] Speaker 01:
I can't find the complaint here.

[00:27:42] Speaker 01:
Oh, here it is.

[00:27:44] Speaker 04:
Okay.

[00:27:44] Speaker 04:
J.A.

[00:27:44] Speaker 04:
19.

[00:27:45] Speaker 01:
Yeah.

[00:27:48] Speaker 01:
The complaint lays out – explains that in 2001, I wrote some letters that were harshly – And that – Let me narrow this down.

[00:27:59] Speaker 02:
Is there a place where the complaint says – names any one of the defendants and says, this defendant

[00:28:07] Speaker 02:
spoke directly with the person who filed the complaint against Mr. Lumier and at a certain time, at a certain place, or anything like that.

[00:28:18] Speaker 01:
Your Honor, what the complaint says is that the defendants induced the prosecution

[00:28:25] Speaker 01:
But as you understand, it's impossible for me to know how that happened.

[00:28:28] Speaker 01:
Exactly.

[00:28:29] Speaker 02:
So this is a problem.

[00:28:30] Speaker 02:
I very well understand the problem, but the Supreme Court is the Supreme Court.

[00:28:35] Speaker 02:
And in Iqbal, they expressly said that when the respondent pleaded that the petitioners, quote, knew of, condoned, and willfully and maliciously agreed to subject him to harsh conditions of confinement,

[00:28:52] Speaker 02:
as a matter of policy, solely on account of his religion, race, and national origin, and for no legitimate ideological interest, that was not enough.

[00:29:01] Speaker 02:
That was a bare assertion.

[00:29:04] Speaker 02:
I would say many people argue before Iqbal that would have been enough, but it is certainly not enough now.

[00:29:09] Speaker 02:
And so the question is, where did you say in your complaint something more than what the Iqbal plaintiff said?

[00:29:19] Speaker 01:
Again, Your Honor, it's scattered throughout the complaint.

[00:29:22] Speaker 01:
So I'm trying to say that there's probably 12 or 15 paragraphs that talk about the defendant's involvement in the process.

[00:29:31] Speaker 01:
Now, if you're asking me where exactly did they talk to the prosecutor and how did they induce him, I can't know that.

[00:29:38] Speaker 01:
There's absolutely no way I can know that.

[00:29:40] Speaker 01:
So how is that different?

[00:29:41] Speaker 02:
How is it different than the court's holding that

[00:29:45] Speaker 02:
the claim that the petitioners agreed to subject the person to harsh penological conditions was not enough.

[00:29:55] Speaker 02:
In your case, you say that the plaintiffs colluded, influenced, et cetera, but you don't say any specifics.

[00:30:06] Speaker 02:
And how is it different than what happened in Iqbal?

[00:30:09] Speaker 01:
Well, Your Honor, if you find that this complaint is not sufficiently detailed,

[00:30:15] Speaker 01:
That's my fault, and I would like leave to amend under Rule 15 so I can add additional detail to address all of the points that have been raised by appellants.

[00:30:27] Speaker 01:
Let me give you an example.

[00:30:29] Speaker 01:
Why did they wait until 2006?

[00:30:31] Speaker 01:
They tell you themselves in the brief.

[00:30:35] Speaker 01:
The final case involving Hamilton Bank was decided in the summer of 2006.

[00:30:41] Speaker 01:
Only after that case was resolved could they bring this action without fear of being embarrassed, because the tribunal, another tribunal might disagree with them.

[00:30:52] Speaker 02:
I think that goes to the plausibility question, which is an answer to Judge Williams, but a question to you.

[00:31:00] Speaker 02:
But it doesn't go to the first step of it.

[00:31:03] Speaker 02:
That's what's worrying me here.

[00:31:05] Speaker 01:
And the first step of Iqbal is exact actions that they took internally.

[00:31:11] Speaker 01:
I don't think anybody could ever know that, Your Honor.

[00:31:15] Speaker 01:
This type of case just isn't possible.

[00:31:16] Speaker 01:
We have to know exactly what steps the government officials took internally.

[00:31:22] Speaker 02:
Thank you.

[00:31:24] Speaker 02:
Well, does the government have any time left?

[00:31:28] Speaker 02:
We'll give you one minute.

[00:31:30] Speaker 02:
And if you want to submit a Rule 28J letter, feel free.

[00:31:35] Speaker 02:
Just cite the case and attach it and serve it on the other side as well as on the court.

[00:31:50] Speaker 00:
Thank you, Your Honors.

[00:31:53] Speaker 00:
Just a few very brief points.

[00:31:55] Speaker 00:
The first is we do think that we should prevail on either qualified immunity or special factors under Abbasi.

[00:32:05] Speaker 00:
But we would urge the Court to address, as this Court suggested in LIF at the earliest practicable stage, the Abbasi claims.

[00:32:13] Speaker 00:
the special factors claims.

[00:32:15] Speaker 02:
We've said it's appropriate to do that.

[00:32:17] Speaker 02:
We've never said it has to be done.

[00:32:19] Speaker 02:
In fact, sometimes we do one and sometimes we do the other, and in fact, that's exactly what the Supreme Court did in Iqbal.

[00:32:25] Speaker 00:
That's exactly right.

[00:32:26] Speaker 00:
We're not suggesting that you're under any obligation to do so.

[00:32:28] Speaker 00:
We were merely respectfully urging.

[00:32:35] Speaker 00:
As to the claims on special factors, as Judge Katcha suggested, there is special sensitivity here.

[00:32:44] Speaker 00:
And to the extent that plaintiff is ultimately alleging that there was fraud on the court because the proceeding was not justified in bringing it, that is precisely the sort of thing first that many administrative enforcement respondents would

[00:33:01] Speaker 00:
want to say, and second, that Congress has provided, in the words of Schweiker against Chilicki, meaningful safeguards or remedies for the rights of persons situated precisely as respondent was.