[00:00:00] Speaker 00: Case number 21-5056, Wisconsin Voters Alliance et al. [00:00:05] Speaker 00: versus Kamala D. Harris, Vice President, in her official capacity as President of the United States Senate et al., Eric G. Curadel, and Mormon Cardel and Erickson P.A. [00:00:15] Speaker 00: at balance. [00:00:16] Speaker 00: Ms. [00:00:16] Speaker 00: Schor for the balance, Mr. Etchimendi, I may just carry on. [00:00:24] Speaker 00: Good morning. [00:00:28] Speaker 00: Good morning. [00:00:47] Speaker 05: Good morning, Your Honors. [00:00:48] Speaker 05: May it please the court? [00:00:49] Speaker 05: I'm Channing Shore. [00:00:50] Speaker 05: I'm here representing the appellants, Eric Cardall, Moorman, Erickson, Moorman, Cardall, Erickson, PA. [00:00:59] Speaker 05: My client, Eric Cardall, is here with me today in the courtroom. [00:01:03] Speaker 05: At the outset, I would like to set forth what we agree upon with the amicus in this case. [00:01:09] Speaker 05: First, Eric Cardall has standing to maintain this appeal. [00:01:13] Speaker 05: Second, Mr. Cardall suffered an injury, in fact, as a result of the district court's February 19th, 2020 order, which I will refer to today as the order. [00:01:25] Speaker 05: Third, this court's determination that the district court acted unlawfully with the order would, as said fourth by my colleague at page 31 of the amicus brief, at least partially redress Mr. Cardall's reputational injury by removing the order's legitimate force. [00:01:43] Speaker 05: And fourth, [00:01:44] Speaker 05: In the order, the district court stated it would, quote, refer the matter to the committee via separate letter, end quote. [00:01:51] Speaker 05: This referral letter, if sent, is not part of the record and is not before the court today. [00:01:56] Speaker 03: But just out of curiosity, has the letter been sent? [00:02:01] Speaker 05: Sorry, Your Honor, I couldn't hear you. [00:02:03] Speaker 03: Oh, I'm sorry. [00:02:04] Speaker 03: Just out of curiosity, has the letter been sent? [00:02:08] Speaker 03: Your Honor, I... You know? [00:02:09] Speaker 05: I can only speak to what's in the record and the letter is not in the record, Your Honor. [00:02:13] Speaker 03: So you don't know whether it's been sent or you don't know whether the disciplinary proceedings are ongoing or anything? [00:02:22] Speaker 05: It's not part of the record, Your Honor. [00:02:23] Speaker 06: Okay. [00:02:24] Speaker 06: All right. [00:02:25] Speaker 06: So you're basing your argument here today on the statement that Judge Boasberg made in his opinion that he was going to refer [00:02:35] Speaker 05: Respectfully, no, your honor. [00:02:37] Speaker 05: This appeal is not about the referral to the committee on grievances. [00:02:41] Speaker 05: This appeal is about the order in full, which did more. [00:02:46] Speaker 05: There's a statement in the order that says that the court will refer Mr. Cardall to the committee on grievances via separate letter. [00:02:54] Speaker 05: But then it goes on for four pages to address the substance of plaintiff's counsel's response to the show cause order. [00:03:01] Speaker 06: But doesn't he also say, I'm not making a decision about this? [00:03:05] Speaker 06: Yeah, here are the facts. [00:03:08] Speaker 06: I assume that's the part of the order that you are referring to where he says the reasons why I'm sending this referral are X, Y, Z. These are the facts that I've observed, but I'm not making a decision. [00:03:20] Speaker 06: I'm sending it to the committee on grievances. [00:03:23] Speaker 06: Do I misread the letter to say that or the order? [00:03:27] Speaker 05: Correct your honor the order does say that the issue with the order is that there's a local procedure for how the court the district court can refer cases to the committee on grievances. [00:03:38] Speaker 05: The district court ordered Mr. Cardall and plaintiffs council to show cause where they should not be referring to the committee. [00:03:45] Speaker 05: They then submitted [00:03:47] Speaker 05: a 13 page response, which is that appendix number page number 1840 to 1852, which included an eight page expert opinion declaration from expert Richard Driscoll in support of Mr. Cawdall's conduct, saying that it did not violate rule 3.1 of the rules of professional conduct. [00:04:05] Speaker 06: Did judge Roseberg make the decision that it did violate the rules of professional conduct? [00:04:12] Speaker 06: No, your honor. [00:04:13] Speaker 06: All right. [00:04:15] Speaker 06: Keep going. [00:04:16] Speaker 06: I mean, those things are in the record. [00:04:19] Speaker 06: And Judge Boasberg found that your client had discharged his duty in so far as he responded to the order to show costs. [00:04:28] Speaker 06: But as far as I understood, Judge Boasberg never made any findings with respect to the issue of whether he had, your client had violated the rules of professional conduct or anything else. [00:04:43] Speaker 05: Your honor, the abuse of discretion comes from judge the district court's failure to address the substance of the arguments that were presented, which include before you get to abuse of discretion, you have to establish this court's jurisdiction. [00:04:57] Speaker 03: Yes, your honor. [00:04:57] Speaker 03: So would you focus on the question of finality, please? [00:05:01] Speaker 03: I'm sorry, I didn't catch the last. [00:05:02] Speaker 03: Would you please focus on the question of finality? [00:05:04] Speaker 03: Is this a final order that's appealable to this court? [00:05:08] Speaker 05: Yes, your honor. [00:05:08] Speaker 03: And why? [00:05:09] Speaker 05: This is a final order that's appeal to this court. [00:05:12] Speaker 05: First of all, it's the last docket entry that's noted on the docket. [00:05:16] Speaker 03: Why does that make a difference? [00:05:18] Speaker 05: Because this order resolve adjudicated the plaintiff council's response to the order to show cause after the case had been voluntarily dismissed by the plaintiffs. [00:05:29] Speaker 03: So take take your standard administrative case. [00:05:34] Speaker 03: We have thousands of them. [00:05:36] Speaker 03: The amicus points out that [00:05:39] Speaker 03: In all of these administrative cases where you have an agency that initiates proceedings against an entity, say a corporation, makes a judgment that there's a reasonable basis to think there's been a violation of the law. [00:05:55] Speaker 03: We in the Supreme Court have held for decades that that's not appealable. [00:05:59] Speaker 03: It's not a final order. [00:06:02] Speaker 03: And to be honest, I just don't see how this is any different from that. [00:06:07] Speaker 03: You've got a district judge here [00:06:09] Speaker 03: basically referring a matter for further administrative proceedings, in this case, discipline. [00:06:19] Speaker 03: And as Judge Jackson points out, in your average administrative case, the agencies are making a judgment that there's a reasonable basis to think the law was violated. [00:06:30] Speaker 03: Here, you don't even have that. [00:06:33] Speaker 05: Respectfully, the order does not simply refer Mr. Cardall to the Committee on Gravances. [00:06:39] Speaker 05: It goes further and it sets forth the allegations of misconduct, which per the local rules are to be sent via separate letter, because there's a confidentiality process to until disciplinary proceedings have been investigated and determined to institute a formal investigation, it's confidential. [00:06:59] Speaker 05: The district court's grievances with Mr. Cardall and his evaluation of the M4 points in the order [00:07:07] Speaker 06: violates that process, but only in so far as you've chosen not to figure out whether there was a separate letter and put that in the record. [00:07:15] Speaker 06: I mean, you, Judge Tatel asked you at the beginning, was there another letter? [00:07:21] Speaker 06: Was the process followed? [00:07:23] Speaker 06: And you say that's not in this record, but I don't see how then we can determine whether the district court did or did not comply unless we know the facts about whether the letter really went out. [00:07:37] Speaker 05: Respectfully, that's the issue. [00:07:39] Speaker 05: The issue is the order says that it's going to be referred by a separate letter, but then it doesn't conclude there. [00:07:47] Speaker 05: The order then goes on and states the grievances on the public record. [00:07:52] Speaker 03: States what on the public? [00:07:54] Speaker 03: All it states on the public record is that your client didn't satisfy his show cause obligations. [00:08:02] Speaker 03: That's all it says. [00:08:04] Speaker 05: Well, it goes a little bit further than that respectfully, your honor. [00:08:06] Speaker 05: There's four issues and four pages of text that the district court disagreed with in plaintiff's counsel response. [00:08:13] Speaker 05: And notably absent from the explanation is the fact that there was a supporting expert opinion that Mr. Cardall's conduct in the underlying litigation complied with rule 3.1 of the rules of professional conduct. [00:08:26] Speaker 06: What if that's in the letter that we don't have here? [00:08:28] Speaker 06: What if that's in the letter with no abuse of discretion then? [00:08:32] Speaker 05: Respectfully, this appeal is not from the referral to the committee on grievances. [00:08:37] Speaker 05: That letter is not what's on appeal. [00:08:39] Speaker 05: The order, which is more than just a statement within the order that is going to be referred, the statement that [00:08:46] Speaker 05: there's four pages of argument and allegations of misconduct against Mr. Cardall that fails to address the substance of Mr. Cardall's response. [00:08:55] Speaker 06: Right. [00:08:56] Speaker 06: So I might be mishearing you, but you keep saying that there are things missing from the order. [00:09:02] Speaker 06: It doesn't refer to the expert report. [00:09:05] Speaker 06: It doesn't talk about what you just said, you know, and I guess what I'm asking you is since we don't have the letter, [00:09:14] Speaker 06: and both the order and you and the rules contemplate that there will be a letter. [00:09:19] Speaker 06: What if the district court's order was just the few little summary points, but there's a letter out there somewhere in which he actually does all the things that you're talking about. [00:09:30] Speaker 06: I don't think you can, as a matter of procedure under those circumstances, not give us the letter, focus only on the order and say that the district court did not comply with his obligation. [00:09:43] Speaker 05: The letter that would have instituted if sent, the disciplinary process, the order that's on appeal concluded the underlying litigation. [00:09:54] Speaker 05: That's what the issue is before this court. [00:10:01] Speaker 01: If you divorce. [00:10:03] Speaker 01: Can you all hear me okay. [00:10:05] Speaker 01: Yes, yes. [00:10:07] Speaker 01: If you divorce the try to divorce this entirely from the referral. [00:10:15] Speaker 01: seems to me pretty artificial because your case for finality rests on the district court wrapping up the underlying case on the merits. [00:10:30] Speaker 01: And in that sense, it looks like he's approaching the point of finality, but [00:10:37] Speaker 01: I mean, if the district court had made all of these very highly critical statements in an order just granting a motion to dismiss by the defendants in the underlying case, this wouldn't even arguably be appealable by the lawyer, right? [00:11:02] Speaker 05: Repeat your questions, make sure I understand if this order were at the same level. [00:11:06] Speaker 01: He says, I mean, let's just take, you know, the order that you're trying to appeal says to weigh this council did smacks once again of political gamesmanship. [00:11:18] Speaker 01: Okay. [00:11:19] Speaker 01: It's a very highly critical statement. [00:11:21] Speaker 01: And let's assume, assume I think that comes close enough to saying that he violated the rules, which [00:11:31] Speaker 01: Big assumption, but even if I think that, I mean, if that statement had been made in an order dismissing the underlying case on the merits, it would just be a judicial opinion that criticizes how a lawyer handled the case, which happens all the time. [00:11:50] Speaker 01: And lawyers don't get to appeal those decisions, right? [00:11:59] Speaker 05: This is respectful, Your Honor. [00:12:01] Speaker 05: The order goes further than just saying it's political gamesmanship. [00:12:05] Speaker 05: There's quotes that extend to, he's not sufficiently elate the concerns regarding potential bad faith. [00:12:11] Speaker 01: That's on paper. [00:12:13] Speaker 01: Pick any statement you want from this opinion and just imagine that it had been made in the final order dismissing the underlying case. [00:12:28] Speaker 01: That wouldn't be appealable by the lawyer. [00:12:32] Speaker 05: The final order is finally, it resolves all the issues in the case. [00:12:37] Speaker 05: And it's not just an appeal from allegations of criticism. [00:12:42] Speaker 05: There's allegations of misconduct, which the local rules have a special procedure when the judge feels that there's reason that a [00:12:52] Speaker 05: conduct gives rise to an investigation or a rule violation, the judge may refer it by separate letter. [00:12:58] Speaker 01: That process- Right, but you're shifting now, that analysis shifts the focus from adjudicating the underlying case, which is done, to initiation of disciplinary proceedings, which is just getting started. [00:13:19] Speaker 05: Which the nature in which the district court [00:13:22] Speaker 05: employed the case had been closed and dismissed. [00:13:25] Speaker 05: And then the district court ordered plaintiffs council to show cause continuing the litigation, holding a public proceeding. [00:13:32] Speaker 05: Mr. Cardell did not have an option to response that order. [00:13:35] Speaker 05: He was ordered to show cause and he did. [00:13:38] Speaker 05: He filed his response supported by expert opinions. [00:13:42] Speaker 05: And then the district court could have at that point said, it's not sufficiently laid my concerns in a one word order and referred it separately to the committee on grievances. [00:13:51] Speaker 05: Instead, the district court goes on for four pages and then sometimes not the same arguments that were presented previously that Mr. Cardall could address, saying, setting forth his allegations of misconduct. [00:14:05] Speaker 03: But the district court- You still haven't responded to the point Amicus makes and that I asked you at the beginning that that's exactly the way many proceedings are initiated. [00:14:20] Speaker 03: And those orders initiating further proceedings are not appeal. [00:14:24] Speaker 03: They're not final orders. [00:14:26] Speaker 03: Even orders that accuse the entity of wrongdoing. [00:14:33] Speaker 03: And they're not appealable because the question of the entity's culpability is still to be litigated in the administrative. [00:14:43] Speaker 03: I mean, that's Amicus's major point, and I just have not heard [00:14:48] Speaker 03: a response from you about why this case is different. [00:14:51] Speaker 03: You know, it was ironic here. [00:14:53] Speaker 03: And the reason I asked you about the letter is that if the if the letter had never been sent, then we might have a different case here. [00:15:02] Speaker 03: Although I would think your your if he never sent the letter, your your response, your obligation would be go back to the district judge and ask him to vacate this order. [00:15:11] Speaker 03: But we have to assume it has been sent. [00:15:14] Speaker 03: And so I still haven't heard [00:15:16] Speaker 03: a basis for distinguishing this case from the thousands of other initiation of administrative proceedings that are non-final. [00:15:27] Speaker 03: I just haven't heard that. [00:15:28] Speaker 03: What is it? [00:15:30] Speaker 05: The order in this case concluded the underlying proceeding, and as set forth in the text of the order- Concluded what underlying proceedings? [00:15:37] Speaker 03: It initiated new proceedings. [00:15:39] Speaker 05: I respectfully know, Your Honor, the initiation is the referral, which the district court specifically said would be done by separate letter. [00:15:46] Speaker 03: All right. [00:15:49] Speaker 03: Okay. [00:15:49] Speaker 03: Yeah. [00:15:49] Speaker 03: Okay. [00:15:49] Speaker 03: Sorry. [00:15:49] Speaker 06: I was just going to say, but I didn't understand your client to be a party to the what proceeded. [00:15:58] Speaker 06: In other words, to the extent that this order is addressing something with respect to your client, isn't that a new thing? [00:16:04] Speaker 06: Your client was a lawyer in the other proceeding, but he wasn't a part of it. [00:16:08] Speaker 06: So how could you say that this order, which is addressed to your client is the end of something as opposed to the beginning? [00:16:16] Speaker 05: The committee on grievances is charged with investigating allegations of rule violations. [00:16:20] Speaker 05: There's a process that set forth for the investigation and then ultimately the prosecution and the trial of allegations of misconduct. [00:16:29] Speaker 05: In this case, the district court is not the final determination of whether or not a rule has been violated. [00:16:43] Speaker 06: Do you have any, I see that your time is, is, uh, expiring or has expired. [00:16:48] Speaker 06: Did you, do you have any, um, thing to say about the sort of standing or the other threshold issue? [00:16:56] Speaker 06: Um, is it your position that there is injury in this case from, from judge Boasberg's order? [00:17:04] Speaker 05: Yes, your honor. [00:17:06] Speaker 06: And is that the criticism? [00:17:08] Speaker 06: What is the, what is the injury? [00:17:10] Speaker 06: He says, I take no position on whether any discipline could be imposed. [00:17:16] Speaker 06: I am not making the finding about whether these things qualify as unethical behavior. [00:17:22] Speaker 06: So it, it's the criticism that creates article three injury in your view. [00:17:28] Speaker 05: It's the injury in fact, to the reputational harm, which includes it's, [00:17:34] Speaker 05: Well, judge was the district court does conclude that he takes no position on the rule violations. [00:17:40] Speaker 05: His order specifically sets forth allegations of political gamesmanship that it's hard to believe the suit was meant in good faith and that, um, yes, I know what the allegations are. [00:17:52] Speaker 06: What I'm asking you is, is it your position that every critique by a court, whether it's in an order, it's an open court, whatever qualifies as [00:18:04] Speaker 06: an article three injury to the extent the court is saying something about the lawyers conduct or perform. [00:18:11] Speaker 05: Your honor, I can only speak to the case at bar. [00:18:13] Speaker 05: And in this case, it's undisputed with both us and amicus that Mr. Cardell has standing and has suffered an injury in fact, as a result of the order by the district court. [00:18:25] Speaker 03: Okay. [00:18:25] Speaker 03: Thank you. [00:18:26] Speaker 05: Thank you. [00:18:27] Speaker 03: We'll hear from amicus. [00:18:32] Speaker 03: Mr. Edgman. [00:18:39] Speaker 04: Thank you, Your Honor. [00:18:39] Speaker 04: May it please the court. [00:18:40] Speaker 02: Good morning. [00:18:41] Speaker 04: Matthew Cimendi, court appointed amicus curiae. [00:18:44] Speaker 04: This case presents the question whether this court has jurisdiction to hear an appeal from the district court's determination to refer an attorney to the committee on grievances in an order that imposed no sanctions and contained no actual findings of misconduct. [00:19:00] Speaker 04: Every court to squarely address that question has said no, there is no appellate jurisdiction in such cases. [00:19:07] Speaker 04: In my view, that's the legally and pragmatically right outcome. [00:19:11] Speaker 04: The harder question, and one on which the existing case law provides less guidance, is the best doctrinal justification for that result. [00:19:19] Speaker 02: Is what? [00:19:20] Speaker 04: The best doctrinal justification for that result. [00:19:23] Speaker 06: You say it provides no guidance. [00:19:25] Speaker 06: I understood that there were courts who squarely chose one doctrinal justification or the other and many courts that have said that a person in Mr. Well's position has no standing. [00:19:40] Speaker 04: They do use the word standing. [00:19:42] Speaker 04: I'm not sure that that's necessarily confined to Article III standing. [00:19:46] Speaker 04: So if you look at the Tiford and Zenty cases, which are the two key cases finding a lack of jurisdiction under these circumstances, they do speak of standing. [00:19:56] Speaker 04: Those cases, and certainly Tiford, came, I think, at a time when the term standing was sometimes used for statutory factors, sometimes for prudential factors. [00:20:08] Speaker 06: All right. [00:20:08] Speaker 06: So we know what it is now. [00:20:09] Speaker 06: Tell us why you concluded that there's sufficient injury under these circumstances, even the circumstances that you've laid out to, um, qualify as article three standing. [00:20:23] Speaker 04: Yes, sir. [00:20:25] Speaker 04: So essentially my argument on injury in fact, the reason why I think Mr. Carl did suffer an injury in fact, um, it's just the combination of Sullivan and trans union and, uh, [00:20:37] Speaker 04: I will allow that I'm putting quite a lot of weight on trans. [00:20:40] Speaker 04: So TransUnion said that essentially there's no meaningful distinction between labeling someone a terrorist and labeling someone as a potential terrorist for purposes of Article 3 injury in fact. [00:20:52] Speaker 04: had TransUnion not been on the books, I think it would be quite a difficult question. [00:20:57] Speaker 04: I'm frankly not aware of other cases directly speaking. [00:21:00] Speaker 06: Let's talk about TransUnion because I do see you putting a lot of weight on it and I'm not sure I'm totally there. [00:21:09] Speaker 06: So I think there's a big difference between what is happening in that case. [00:21:15] Speaker 06: Justice Kavanaugh says that it's highly misleading and inherently damaging like defamation [00:21:22] Speaker 06: to tell someone or to say that the plaintiff's name is on a list of people that the government had concluded was a terrorist or a drug dealer. [00:21:32] Speaker 06: And in essence, as I read that case, he's saying that alone is really damaging. [00:21:37] Speaker 06: So whether they turned out to be, whether it turned out to be that the government had actually designated you a terrorist, a terrorist, the difference between saying you're on a list of potential terrorists and you've actually been designated a terrorist, really not that big and both are damaging here. [00:21:55] Speaker 06: It seems to me that we have something different. [00:21:59] Speaker 06: The district court expressed concerns about Mr. Cardle's performance. [00:22:03] Speaker 06: He made it explicit that he was not concluded that he had acted unethically. [00:22:09] Speaker 06: And so no one could be misled into thinking that the referral meant that he, the relevant government entity, had concluded that Mr. Cardle had behaved unethically, right? [00:22:21] Speaker 06: So it seems to me that that's really not [00:22:24] Speaker 06: the same thing. [00:22:25] Speaker 06: So can you, can you? [00:22:27] Speaker 04: Right, and there may not be the same issue about misleading potential members of the audience of this order. [00:22:34] Speaker 04: I do think for purposes of Article 3 standing, just keep that separate from the merits, we need to assume Mr. Cardall's position on the merits for purposes of evaluating injuries. [00:22:44] Speaker 04: So I think we need to take it for granted that, you know, many of these criticisms were not well founded. [00:22:51] Speaker 06: Yes, but we don't assume that he has the injury. [00:22:53] Speaker 06: I mean, that's the question of standing. [00:22:55] Speaker 06: So, so, you know, as I was trying to think about this, that another way to conceptualize it is that if you had a spectrum of harm in this area with one end being non-defamation, but critical comments, [00:23:12] Speaker 06: and the other end being the kind of defamatory comment that Justice Kavanaugh identifies, you know, hate, something that could object you to hatred or contempt or ridicule. [00:23:22] Speaker 06: And then you plotted TransUnion's two comments, the two ideas I talked about, both your name is on a list that the government says are terrorist, you know, people, and the government has actually designated you a terrorist, both fall on one side of the spectrum. [00:23:41] Speaker 06: Whereas in our case, I have concerns about your ethical behavior seems so far from I have designated you unethical that one could be on one side and one could be on the other. [00:23:57] Speaker 06: So the fact that trans union puts them both together says the one is basically the same as the other doesn't tell me what to do in our case with I have some concern. [00:24:09] Speaker 04: So I certainly agree. [00:24:11] Speaker 04: Standing is always a fact-specific entry, and there is a distinction between the type of statements at issue here and in TransUnion. [00:24:20] Speaker 04: And if the court were to decide that there were no standing, I suppose it could distinguish TransUnion. [00:24:27] Speaker 04: I was just convinced that combination of Sullivan, which says that actually having been labeled [00:24:33] Speaker 04: as a rule violator, sufficient to establish reputational standing. [00:24:38] Speaker 04: You combine that with, I guess, trans-union pouring cold water on the distinction between you did X and you may have done X, that it struck me as probably the best outcome to say that there was injury in fact. [00:24:51] Speaker 01: The other... Sorry. [00:24:54] Speaker 01: I was going to... Sullivan, one... [00:25:01] Speaker 01: major difference between Sullivan and this case is the statement in Sullivan was made by the committee on grievances at the end of its investigation. [00:25:16] Speaker 01: So that's a case where the administrative body charged with adjudicating misconduct does its thing and concludes at the end of its process that [00:25:31] Speaker 01: there was a violation, but no sanction should be imposed. [00:25:37] Speaker 01: And that seems very different from what we have here, which is it's some combination of either the district court is just concluding merits litigation and makes comments critical about lawyer performance and or the district court in its capacity as a complainant [00:26:00] Speaker 01: initiates the disciplinary proceeding. [00:26:05] Speaker 01: So are there any cases finding standing based on just critical statements that are either embedded in the merits opinion or the disciplinary complaint? [00:26:21] Speaker 04: No, I'm not aware of any case that has held that there was standing actually to appeal any discipline attorney discipline related or where there was neither [00:26:31] Speaker 04: an explicit finding of wrongdoing or some kind of tangible sanction. [00:26:36] Speaker 01: I mean, it just seems to me a cleaner line. [00:26:38] Speaker 01: I'm a little worried about an Article 3 line that would turn on how pointed or definite statements were as opposed to just simply saying these are [00:26:58] Speaker 01: Um, these are statements by the judge who's initiating a complaint, and that's not enough. [00:27:07] Speaker 04: It certainly could raise line drawing questions, and so I could understand the concern if this court were to address article three standing. [00:27:15] Speaker 04: Of course, if you agree with my view on finality, that wouldn't be necessary. [00:27:18] Speaker 04: Right. [00:27:19] Speaker 03: Speaking, um, were you done? [00:27:23] Speaker 03: Yes, thank you. [00:27:25] Speaker 03: Speaking of your view about, you also argue that the decision is not a judicial act. [00:27:36] Speaker 03: Do you have any view about, is there anything you can share with us about your view about which is the sounder basis for this court to rest a no jurisdiction decision on? [00:27:51] Speaker 04: Well, I think they're both sound, Your Honor. [00:27:53] Speaker 04: I would say certainly the case law is more extensive on finality. [00:27:57] Speaker 06: Right. [00:27:57] Speaker 06: On finality or standing? [00:28:00] Speaker 06: Has any court held non-final in this context? [00:28:05] Speaker 04: Well, there's a suggestion of it in Teeford. [00:28:08] Speaker 04: So Teeford does cite finality case law and says this is analogous to an order to show cause. [00:28:15] Speaker 04: That wouldn't be appealable because it would be non-final. [00:28:19] Speaker 04: teeth or didn't spell out the, you know, 1291 reasoning that I've offered, but it finality was certainly one of the things that was on the court's mind in that case. [00:28:29] Speaker 04: I wouldn't describe it as, you know, fully embracing the view that I've put out here. [00:28:32] Speaker 06: No, I'm sorry. [00:28:34] Speaker 06: I'm sorry to cut you out. [00:28:34] Speaker 06: I just thought there were cases that actually held no standing in this context where there had been no, uh, actual finding or, um, [00:28:47] Speaker 04: Oh, they did hold no standing, your honor. [00:28:49] Speaker 06: So we do have strong, we have no standing cases. [00:28:51] Speaker 06: Do we have a similar, no finale that goes through the, you know, this is a judicial order and all of the factors that relate to finality? [00:29:01] Speaker 04: No, there's a thread of that in Teefer, but, uh, the reasoning isn't fully spelled out. [00:29:06] Speaker 03: Do you think there's any doubt that this is not a final order? [00:29:11] Speaker 04: I have no doubts, particularly. [00:29:14] Speaker 04: I do think that the analogy to the agency case law that you mentioned, Judge Tatel, is very illuminating. [00:29:20] Speaker 04: Of course, those are different statutes. [00:29:22] Speaker 04: Those aren't under 1291. [00:29:24] Speaker 04: But the analogy is fairly strong. [00:29:28] Speaker 04: And I do think that essentially what the district court was doing here was taking an act that, in some respects, one sees more commonly with administrative agencies. [00:29:38] Speaker 04: There aren't very many [00:29:39] Speaker 04: circumstances in which district courts are initiating complaints. [00:29:43] Speaker 04: But that's exactly what happened here. [00:29:44] Speaker 04: And we do know how that's treated in the agency context. [00:29:48] Speaker 04: There's no final appealable agency action. [00:29:52] Speaker 06: We have to go through the finality factors. [00:29:54] Speaker 06: What would we do with the judicial role factor that Judge Cato mentioned earlier? [00:30:01] Speaker 06: I mean, this is a civil case, the orders arising out of it. [00:30:05] Speaker 06: It involved an attorney in the case. [00:30:08] Speaker 06: was a resolution to some extent of the order to show cause at least it involved determinations that at least he talks about sort of merit relations the kinds of things the grievance board is going to have to consider. [00:30:23] Speaker 06: So I'm I'm a little concerned about the suggestion that this is not [00:30:31] Speaker 06: not a judicial order, especially given some of the more recent statements of the Supreme Court in the case. [00:30:40] Speaker 06: I asked us versus Davis. [00:30:41] Speaker 06: I don't know. [00:30:42] Speaker 06: You may be familiar with that one. [00:30:44] Speaker 06: So how do we call this a non judicial order in light of that? [00:30:49] Speaker 04: So just as a matter of clarification, I would say not necessarily that it's not a judicial order, but that it's not a judicial decision. [00:30:57] Speaker 04: And essentially, the basis of my argument is that this wasn't adjudicating any legal issues. [00:31:05] Speaker 04: It's hard to see what rights or duties are decided in this opinion. [00:31:09] Speaker 04: You know, the order has some perspective effect in the sense that it does set in motion a further proceeding, but that's something that any member of the public can do. [00:31:19] Speaker 04: So I don't see the district court is doing anything uniquely within its judicial power and my best. [00:31:25] Speaker 04: Analogous cases are probably the cases dealing with recommendations, non-binding recommendations made to the Bureau of Prisons. [00:31:32] Speaker 04: I cite the McHugh case from the Seventh Circuit and the Pinero case from the Second Circuit, but there are others out there. [00:31:38] Speaker 04: And those courts were dealing with attempts to appeal non-binding recommendations that sentencing judges made, essentially. [00:31:46] Speaker 04: And it was held that those were not decisions within the scope of the statute. [00:31:51] Speaker 06: So you don't think that the judges' insight into the proceedings [00:31:56] Speaker 06: is in some ways uniquely different than someone on the street in terms of making the referral? [00:32:05] Speaker 04: Well, as a practical matter, I'm sure that some audiences would give it more weight. [00:32:12] Speaker 04: I'm not sure that's enough to convert it into a judicial decision in the proper sense. [00:32:16] Speaker 04: The same is probably true in the Bureau of Prison's recommendation cases. [00:32:21] Speaker 04: I take it that the government takes the judge's recommendation quite seriously. [00:32:25] Speaker 04: But the fact of the matter is that it remains non-binding. [00:32:27] Speaker 04: I mean, that's very clear. [00:32:28] Speaker 04: The committee doesn't have to follow anything in this order. [00:32:33] Speaker 03: I want to make sure. [00:32:36] Speaker 03: I didn't read your brief as saying we had to decide that. [00:32:42] Speaker 03: Isn't your position that finality, whatever this is, it's not final? [00:32:47] Speaker 04: Yes, Your Honor. [00:32:48] Speaker 04: So finality is an independent sufficient basis. [00:32:52] Speaker 01: In other words, you have [00:32:54] Speaker 01: you have standing arguments and then within 1291, you have two subsidiary arguments. [00:33:02] Speaker 01: One is judicial decision and one is no finality. [00:33:06] Speaker 04: Correct. [00:33:06] Speaker 04: And since to fit the statute, it would need to be a final decision, both final and the decisions are independent basis. [00:33:14] Speaker 03: Okay, thank you. [00:33:15] Speaker 03: I'm sure you were out of time, but we'll give you two minutes. [00:33:24] Speaker 05: Thank you, Your Honor. [00:33:25] Speaker 05: The order is a final judicial decision. [00:33:31] Speaker 05: A member of the public cannot order an attorney in a case to show cause why he should not be referred to the Committee on Grievances and then adjudicate the sufficiency of his response and issue an order. [00:33:43] Speaker 05: It's not comparable to a lay person submitting a complaint of alleged misconduct separately to the Committee on Grievances. [00:34:00] Speaker 02: Anything else? [00:34:00] Speaker 02: Is that it? [00:34:02] Speaker 05: I'm sorry, Your Honor. [00:34:03] Speaker 02: Anything else? [00:34:07] Speaker 05: Do you have any? [00:34:08] Speaker 05: I'm sorry. [00:34:08] Speaker 02: Do you have anything else? [00:34:10] Speaker 05: Yes, Your Honor. [00:34:10] Speaker 05: We respectfully request that this court follow the precedent set by the Third Circuit in Adams that the district court's failure to follow the local rules regarding the procedure for referrals to the Committee on Grievances and is abuse of discretion. [00:34:26] Speaker 05: And we respectfully request that this court vacate the order as it was an abuse of the district court's discretion. [00:34:32] Speaker 03: Thank you. [00:34:34] Speaker 03: Mr. Archimendi, the court appointed you as amicus, and your brief and oral argument have been helpful, and we are grateful for your assistance. [00:34:41] Speaker 03: Thank you. [00:34:43] Speaker 03: And thank you, Ms. [00:34:44] Speaker 03: Schor. [00:34:45] Speaker 03: The case is submitted.