[00:00:00] Speaker 00:
Pace number 22, 5133 et al.

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Radia Buchanan et al.

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A balance versus William P. Barr in his individual capacity as former U.S.

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Attorney General et al.

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Mr. Michael Mann for the Black Lives Matter DCA balance.

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Mr. Crane for the Buchanan balance.

[00:00:18] Speaker 00:
Mr. Springer for the Apple East.

[00:00:22] Speaker 02:
Morning.

[00:00:23] Speaker 02:
Good morning.

[00:00:25] Speaker 02:
Scott Michael main council for plaintiff's appellants in number 225139.

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I'll be addressing our argument that the Westfall Act resolves this case.

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The Crane Council in number 225133 will then address the balance of our argument.

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And I reserve two minutes for rebuttal.

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May it please the court.

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Plaintiffs are civil rights demonstrators who are chanting, kneeling, and praying, otherwise nonviolently protesting in the heart of the nation's capital when they were violently dispersed by federal officers using tear gas, rubber bullets, and a baton chart.

[00:01:01] Speaker 02:
Although the constitutional violation here was grave, the question in this case is not one of constitutional law, but one that can be resolved using ordinary tools of statutory interpretation.

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Plaintiff's main argument proceeds in three steps, the first two of which are uncontested.

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As the court most recently held in Egbert, in the Bivens field, courts must implement the will of Congress.

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That's first.

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Second, in the Westfall Act of 1988, Congress enacted a specific provision that preserved Bivens, and the Supreme Court has included that four separate times, and the defendants don't disagree.

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Third,

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Under ordinary tools of statutory interpretation, Congress's enactment of the Westfall Act Savings Clause for, quote, any civil action against an employee of the government brought for a violation of the Constitution of the United States, end quote, incorporates this court's well-known holding in Dellums, which is squarely on point and authorizes plaintiff's claims here.

[00:02:02] Speaker 02:
I'll go into each of these points in turn in more detail.

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Deferring to Congress is the core command of SCOTUS-Bivens jurisprudence, as defendants agree.

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In fact, absent the utmost deference to Congress.

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Egbert tells us, the courts arrogate legislative power.

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And deferring to Congress means deferring to whatever judgment it is that Congress has made, pro or con.

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In fact, in the current case cited in our briefs, at page 394, the court said, quote, it is just as much judicial legislation for a court to withdraw a remedy which Congress expected to be continued as to improvise one Congress never had in mind.

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Second then, what did the Westfall Act do?

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Congress affirmatively acted to preserve Bivens.

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The text is very clear.

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This is a savings clause.

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It preserves, carving out of the exclusive remedy provision, a civil action against an employee of the government which is brought for a violation of the Constitution.

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That's Bivens.

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The Supreme Court has recognized that four separate times most recently in Justice Thomas' opinion for the unanimous court in Tanzine.

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Defendants don't dispute that either.

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Now, here's the point of dispute.

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What did the Westfall Act say?

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It saved Bivens, quote, where it found it.

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And under the Supreme Court's and this court's longstanding understanding of statutory interpretation principles, including prior construction, codification of a judicially defined concept includes the judicial interpretations of including unusually important precedents.

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And that must include doubt.

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What are we to do with the language in Egbert

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where the court said, I'm quoting in short, as we explained in Ziegler, a plaintiff cannot justify a Bivens extension based on parallel circumstances with Bivens, Passman, or Carlson, unless he also satisfies the analytical framework prescribed by the last four decades of entertaining cases.

[00:04:06] Speaker 02:
Judge Wilkins, I think it's really important to distinguish that inquiry from what we're doing here.

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In Egbert, as in the Supreme Court's cases since 1980, they were concerned about lower courts going on adventures into private defendants, cases about terrorism, excessive force at the border.

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And in that circumstance, the Supreme Court has cautioned and said, don't get too fast to get outside of Bivens, Carlson, and Davis, because the judiciary isn't in the business of creating causes of action.

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But here, what the court needs to do is fundamentally something different.

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It needs to decide under ordinary rules of statutory construction what Congress preserves.

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And Egbert also said, we're still clear that the court's number one task is to defer to Congress.

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So while it wouldn't be appropriate, might not be appropriate for courts to go very far beyond Bivens, Carlson or Davis on their own, it is appropriate to do whatever Congress wanted to have happen.

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And under the prior construction canon, because of Delam's prominence, it was a well-known case.

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It was a widely cited case.

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It was a newsworthy case.

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It involved a member of Congress on the steps of the Capitol.

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Congress had to know about it.

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So when they preserved Bivensland via the West Fall, by affirmative statutory text, not just an inference from silence, they enacted text saying, Bivens, still available.

[00:05:34] Speaker 02:
Well, what was Bivens at that time?

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It included Dellons.

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Now the government says, well, it didn't really include anything other than Bivens, Carlson, and David.

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Congress doesn't legislate that way.

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They don't legislate with only three examples in mind without saying so.

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The government has no examples in which a statute has ever been construed that way.

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There are no examples in the text, and the prior construction canon counsels otherwise.

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It counsels for us to look to the law as it was when Congress acted.

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and that law included down.

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In fact, Mr. McMahon, can you tell me what you think a court should do in the following situation?

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Same facts has happened here, but you bring a common law battery playing against the defendants and the defendants say on, you know, under the Westfall Act, you know,

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any civil action for money damages is preempted unless it is under the West Fall.

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And then you say, oh no, actually, this state tort action for battery was preserved when Congress said paragraph one does not extend to a civil action

[00:06:53] Speaker 05:
brought for a violation of the Constitution of the United States, because this state tort battery suit was a battery that itself violated the Constitution of the United States.

[00:07:09] Speaker 02:
I think Judge Walker, the right way to read B2A is when a claim is brought for a violation of the Constitution of the United States, that refers to the cause of action.

[00:07:18] Speaker 02:
That refers to the claim that's made.

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And I think the, um,

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It's been very clear in the Supreme Court's precedents, such as Osborne against Haley, they've said that Congress clearly intended to wipe away state tort claims under state tort law.

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But just as clear, they intended to preserve in B2A.

[00:07:38] Speaker 05:
I would have thought you would have a different reaction, which is you could still say you should win in this case for the claims you brought, but I thought you would

[00:07:48] Speaker 05:
be happy about the possibility that there might be another avenue to sue these defendants for money damage.

[00:07:54] Speaker 02:
Your honor, we the fundamental command of Edward is we have to do what Congress wanted.

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Congress wanted to wipe away state tort claims.

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It did it.

[00:08:03] Speaker 05:
That's that's kind of

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I don't know if begging the question is the right phrase or not, but I'm saying maybe Congress didn't mean to wipe away all state tort claims.

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Maybe they only meant to wipe away state tort claims that are not brought for a violation of the Constitution.

[00:08:21] Speaker 02:
Well, they did permit Federal Tort Plains Act claims to incorporate state tort law standard.

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But I guess what I'm saying, Judge Walker, is we are trying to embrace the most careful

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limited construction of what Congress did consistent with the text in the prior construction.

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I mean, we would have no, you know, if the court wanted to construe this claim as a DC law battery claim in the interest of justice and allow us to proceed, of course, we would have no objection.

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But I think if you're asking whether we've opened the floodgates, so to speak, to a series of other... That's not my question.

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Maybe you lose today, but maybe you win tomorrow when you bring a state

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battery.

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You would like that better than lose today and lose tomorrow.

[00:09:14] Speaker 02:
I would like that better than lose today and lose tomorrow, but I think we win today.

[00:09:20] Speaker 02:
I appreciate the question.

[00:09:24] Speaker 02:
I think the government's, fundamentally the government's interpretation of the statute is implausible.

[00:09:31] Speaker 02:
In fact, the committee report says that it expressly preserved the Bivens Act in action in the West Fall Act and that was put a major feature of the West Fall Act, according to the committee and that's at our opening brief of 2025.

[00:09:46] Speaker 02:
The justice Thomas's opinion for the unanimous court in Tanzania is also really relevant.

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You can't send interpretive rules back in time.

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I think that goes to Judge Wilkins question about the new context.

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New context may be the measure of how the Supreme Court judges lower court's attempts to push beyond the boundaries

[00:10:07] Speaker 02:
of what has been previously recognized.

[00:10:09] Speaker 02:
It's not how we do statutory interpretation.

[00:10:12] Speaker 02:
Statutory interpretation requires deference and respect to the legislative branch, including what they wrote and what they knew at the time.

[00:10:19] Speaker 02:
And Tanzine says you can't disrespect them or contravene their will by sending these presumptions back in time and expecting them to predict the future course of the court's jurisprudence.

[00:10:32] Speaker 02:
The district court fundamentally lost sight of the key inquiry by ignoring what Congress said.

[00:10:37] Speaker 02:
In fact, the district court did not cite the Westfall Act.

[00:10:42] Speaker 02:
Therefore in, in,

[00:10:45] Speaker 02:
in accordance with what Congress wanted, in accordance with the Westfall Act savings clause, in accordance with the prior construction candidate as it was construed in Cannon, in Curran, in this court's decision in Beethoven, and the other cases cited in our brief, this court should hold that the plaintiffs have a preserved vivid cause of action that was preserved by Congress in the Westfall Act.

[00:11:12] Speaker 02:
through the existing precedent in Dellums, which is squarely on all fours with this case, even defendants don't show.

[00:11:21] Speaker 02:
Thank you.

[00:11:34] Speaker 04:
Good morning, Your Honors, and may it please the court, Lee Crane, Gibson Dunn, and Crutcher for the Buchanan Appellant.

[00:11:40] Speaker 04:
Your honors, if the court concludes that the West Ball Act did not preserve bivis, as my colleague has argued, it should still reverse under binding Supreme Court and this court's precedent for the reason that there are no special factors counseling hesitation in recognizing a cause of action in this case.

[00:11:56] Speaker 04:
I'd like to address three special factors, if I may, at this time.

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The first is the national security claim, the second, the administrative remedy, the hotline the government cites in its brief, and third, injunctive relief.

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With respect to national security, this is not a national security case, as the Supreme Court has defined that term.

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It is not a case at the border like Egbert, an international incident like Hernandez.

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It's not a case about the military, like this court's decision in Doe versus Rumsfeld.

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Instead, this is what Abbasi called at page 1862 of the opinion, a domestic case where the invocation of national security cannot be a talisman to avoid inconvenient cases.

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Those are the court's words in Abbasi.

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But what the district court did here was establish a categorical rule that any and all claims arising out of Lafayette Park, no matter the violation, no matter the facts, implicate national security and thus are barred.

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For two critical reasons, that's incorrect.

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The first is it conflicts with 50 years of this court's precedent, starting at least with Quaker action one in 1969.

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In Quaker Action 1, this court said clearly that the mere invocation of the president's safety cannot be allowed to trump any First Amendment issue.

[00:13:13] Speaker 04:
The court said, consistent with the bossy's language on the talismanic invocation of national security, the court said on page 1118 of Quaker Action 1,

[00:13:23] Speaker 04:
that the court must be sure that conclusions with respect to national security rest upon solid facts and a realistic appraisal of the danger rather than vague fears extrapolated beyond any foreseeable threat.

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This court, in fact, in Quaker Action 1 expressly concluded, rejected the government's argument that the courts have no business addressing security as compared to First Amendment rights in Lafayette Square.

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And the reason why?

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For 50 years, this court has said Lafayette Park is a unique situs of public expression, a unique public forum, as contrasted with footnote 40 of Quaker action four, where the court said very clearly the White House is among the most secure places possible for the president.

[00:14:04] Speaker 04:
Now, the district court's categorical ruling also conflicts with the facts of this case as the court appeared to recognize.

[00:14:10] Speaker 04:
At JA 222, the court said it couldn't credit

[00:14:15] Speaker 04:
that the government's argument that the square was cleared in this case for reasons of a presidential movement, for good reason, because the complaint drawing the inferences and the allegations the light most favorable to the plaintiffs alleges the opposite.

[00:14:28] Speaker 04:
For instance, at JA 161, paragraph 95, we cite a statement by defendant Barr that the correlation of the movement as opposed to clearing the park was not about a presidential movement.

[00:14:41] Speaker 04:
We also cite in our brief at footnote five, the inspector general's report that concluded, of the Department of Interior, that concluded that there was no evidence that the square was cleared for purposes of a presidential movement.

[00:14:55] Speaker 06:
Let's suppose, I think that that is a fair reading of the complaint and that is a way to look at it.

[00:15:01] Speaker 06:
What do we do with Egbert's language where the court said the question is not whether national security actually requires

[00:15:09] Speaker 06:
but it's instead whether the judiciary should alter the framework established by political branches for addressing that issue.

[00:15:22] Speaker 04:
So your honor, I think that hearkens back to one of the things the district court cited.

[00:15:26] Speaker 04:
I think that language comes from Hernandez.

[00:15:28] Speaker 04:
And Hernandez says it's not just about whether the national security was part of, it was about whether the national security context was part of the decision making process to consider that this decision was entrusted to the political branches.

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And so our response to that,

[00:15:44] Speaker 04:
is that in this case, looking at the allegations and the facts, there's no indication whatsoever that national security was part of the decision-making process.

[00:15:53] Speaker 04:
And this court in Michel, page 423, expressly looked at the competing arguments of the facts, the allegations, drew the inferences in the favor of the plaintiffs.

[00:16:04] Speaker 04:
In that case, it was an interrogation.

[00:16:06] Speaker 04:
And the government was arguing it was a national security issue, it was a national security interrogation.

[00:16:11] Speaker 04:
The plaintiff was arguing it was a criminal procedure, a generic law enforcement type instance.

[00:16:16] Speaker 04:
The court ultimately concluded there were special factors involved because the interrogation was abroad.

[00:16:20] Speaker 04:
But the court looked at the allegations because it's looking at the facts and considering whether it's consistent with that Hernandez language and with the Egbert language, whether the national security decisions were part of the decision making process.

[00:16:33] Speaker 04:
And so if you look again at this court's jurisprudence for 50 years, Your Honor, this court is well equipped.

[00:16:39] Speaker 04:
It has considered Lafayette Park a unique site for public expression.

[00:16:43] Speaker 04:
The district court's categorical ruling that no claims can arise is not at all consistent with that jurisprudence.

[00:16:49] Speaker 04:
And also turning to the question of the political branch, Your Honor, if I could turn to the administrative grievances.

[00:16:54] Speaker 04:
The question, as your honor said, was whether there's a reason to think that Congress meant to entrust this decision to the political branch.

[00:17:01] Speaker 04:
And what the government has identified as, quote unquote, evidence of that is a hotline.

[00:17:06] Speaker 04:
They cited, I believe, page 20 of their brief that goes to the Department of Interior to raise a grievance.

[00:17:11] Speaker 04:
That is fundamentally different from the government's invocation of Egbert, from the administrative grievance in Egbert.

[00:17:17] Speaker 04:
And if you look at the administrative grievance closely in Egbert,

[00:17:19] Speaker 04:
It's pursuant to a regulation, section 8 CFR 28710, which is about the claims that the plaintiff brought in that case for violations of excessive force.

[00:17:29] Speaker 04:
You look at the procedure set out in that investigation, in that regulation, it says that there shall be an investigation

[00:17:35] Speaker 04:
There has to be a report here, but the government's invoking is a hotline.

[00:17:40] Speaker 04:
The government can shelve it.

[00:17:41] Speaker 04:
There's no regulation whatsoever.

[00:17:42] Speaker 04:
There's no process.

[00:17:44] Speaker 04:
What Abbasi said is that the remedial process, the question of whether Congress has entrusted this to the political branch, is about whether Congress has decided, whether the remedial process protects the injured party's interest.

[00:17:56] Speaker 04:
And this court's decision in LIF is also probative of that question, because in LIF, the court looked carefully at the harms the plaintiff was alleging.

[00:18:04] Speaker 04:
the contractor case or the reputational harms.

[00:18:07] Speaker 04:
And it said the Tucker Act exists, the Privacy Act exists.

[00:18:10] Speaker 04:
The only statute the government has cited in this case is 5A USC Section 3, which is the generalized inspector general statute.

[00:18:18] Speaker 04:
So what the government is telling this court is that it is a special factor

[00:18:22] Speaker 04:
that an agency like likely every other agency in the government has set up a hotline and has an inspector general statute that has nothing says nothing about law enforcement, does nothing about protesters rights, does nothing about Lafayette Square.

[00:18:36] Speaker 04:
So at the end of this court needs to look at the harms alleged and the grievance process established, and it will see that there is no remedy to protect the injured party's interest.

[00:18:46] Speaker 04:
If I could cover, I know I'm over my time, Your Honor.

[00:18:48] Speaker 04:
If you could wrap up.

[00:18:49] Speaker 04:
Absolutely, Your Honor.

[00:18:50] Speaker 04:
Just the last point on the injunctive relief, Your Honor.

[00:18:52] Speaker 04:
The district court's holding that the injunctive relief in this claim that was dismissed for lack of standing was sufficient, directly conflicts with the court's language in Abbasi at page 1858 and 1862.

[00:19:02] Speaker 04:
I won't read it.

[00:19:03] Speaker 04:
I'll just leave it out there for purposes of time.

[00:19:06] Speaker 04:
and your honor if the court includes categorically that lafayette swear and any standing this injunctive claim and constitute a special factor there will be no claims whatsoever because any plaintiff can file a meritless injunction claim for the reasons uh foregoing reasons of myself and my colleague we ask that the court reverse thank you thank you

[00:19:41] Speaker 03:
Mr. Springer.

[00:19:42] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:19:45] Speaker 03:
Brian Springer on behalf of the Federal Police.

[00:19:47] Speaker 03:
I'd like to address a couple points made by

[00:19:51] Speaker 03:
the other, my colleagues on the other side.

[00:19:53] Speaker 03:
First of all, with respect to the Westfall Act, I think it's important to note that the Westfall Act was a new statute that was passed to overrule the Supreme Court's decision in Westfall, which was about employee liability, particularly with respect to state law, uh, negligence claims.

[00:20:10] Speaker 03:
In that act,

[00:20:12] Speaker 03:
Congress did not just decided not to legislate with respect to givens claims that continue the carve out for constitutional claims that had been part of the federal claims act since the beginning and Congress's decision not to legislate with respect to.

[00:20:28] Speaker 03:
constitutional claims is not something that allows us to just sort of hook in all of these givens cases that the other side is talking about, including this court's decision in Dellums.

[00:20:37] Speaker 06:
Well, if the court said that what Congress did was leave Bivens where it founded and Dellums is a case from our circuit, bound by precedent from our circuit, then don't we apply Dellums?

[00:20:53] Speaker 03:
Your Honor, I think what the Supreme Court said, left Bivens where it found it, it meant left Bivens untouched.

[00:20:58] Speaker 03:
In other words, left Bivens as a judge-made remedy to continue to develop in the courts.

[00:21:03] Speaker 03:
In Hernandez, specifically in that footnote nine that Your Honor is referring to, the Supreme Court rejected a species of the argument that the plaintiffs are raising here, definitively rejected it.

[00:21:14] Speaker 03:
And this court in Mijal made similar observations about the idea that what Congress did in the Westfall Act

[00:21:22] Speaker 03:
did not affirmatively preserve Bivens.

[00:21:25] Speaker 03:
Instead, Congress chose not to legislate with respect to Bivens.

[00:21:28] Speaker 03:
There's no language in the Westfall Act that suggests that Congress was approving of the Bivens remedy.

[00:21:33] Speaker 03:
It was just continuing not to legislate with respect to that and leaving it to develop in the courts, you know, with continued further refinement, the Bivens doctrine.

[00:21:43] Speaker 03:
Wait a second.

[00:21:44] Speaker 06:
You just said that there's no evidence that Congress was endorsing or approving Bivens?

[00:21:53] Speaker 06:
I mean, what was Congress doing with B2A?

[00:21:56] Speaker 03:
Your Honor, as I mentioned, the Federal Tort Claims Act, which came before the Westfall Act, had always been understood to carve out constitutional claims.

[00:22:07] Speaker 03:
And so in B2A, Congress was just reiterating this point that constitutional claims are not covered by the Westfall Act.

[00:22:13] Speaker 03:
They fall outside the Westfall Act.

[00:22:15] Speaker 03:
But Congress wasn't affirmatively ratifying any sort of

[00:22:19] Speaker 03:
judicial decisions and said Congress was leaving this as a judge-made remedy that could continue to develop in the courts and has continued to develop in the courts, you know, through Abbasi and Hernandez and Egbert.

[00:22:31] Speaker 01:
What do you see as the effect or the importance, if any, of delims from this court as applied in this case?

[00:22:41] Speaker 03:
Your honor, I don't think that Dellums has any relevance in this case.

[00:22:44] Speaker 03:
I don't think that it can be used as a basis to not apply the Supreme Court's framework for determining whether or not a Bivens remedy lies in a particular case.

[00:22:54] Speaker 03:
The Supreme Court's recent Egbert decision is very clear about how this analysis is supposed to run, that you're supposed to look to the three Supreme Court decisions

[00:23:03] Speaker 03:
that have previously recognized a remedy and determined whether or not there's a new context and then also determine whether or not special then you would say that's looking at decisions is only looking at the three supreme court decisions not at any uh circuit law your honor this court in lumiere was very clear that at the new context step you don't look to any any circuit law you just look to the three supreme court decisions and eggbert reiterated that point as well

[00:23:35] Speaker 06:
So in your view, since, I'm just trying to make sure I understand your argument, since Dellums didn't do the kind of due context and special factors analysis, even if we concluded that this case were on all four with Dellums, we can't buy Dellums.

[00:24:01] Speaker 06:
We have to do that analysis

[00:24:05] Speaker 06:
vis-a-vis Bivens, Carlson, and Pasadena.

[00:24:10] Speaker 03:
Your honor, I think that's correct.

[00:24:12] Speaker 03:
It's correct that the right way to proceed in this case is to apply the traditional tests that the Supreme Court has developed most recently in Egbert.

[00:24:22] Speaker 03:
And as we mentioned in our brief and as your honor noted, the Dellums case itself didn't apply the special factors analysis.

[00:24:29] Speaker 03:
It just sort of said that this was an administrable thing that could go forward.

[00:24:34] Speaker 03:
And the Supreme Court in Egbert made clear that

[00:24:37] Speaker 03:
that it's important to actually run the special factors analysis and determining whether to recognize the cause of action.

[00:24:43] Speaker 03:
And the reason for that is that the court explained an egg burden has reiterated many times is the separation of powers concerns with courts creating new causes of action out of whole cloth.

[00:24:55] Speaker 06:
So how is it a special separation of powers concern if Congress was well aware of the Dellums case and didn't express

[00:25:04] Speaker 06:
any reservations about it or didn't when it had the opportunity to say that, you know, you can't bring these sorts of constitutional actions and left them in place and left Bivens as a founding.

[00:25:20] Speaker 06:
I mean, isn't part of the Bivens case law that Congress would have been aware of,

[00:25:26] Speaker 03:
Congress isn't required to cast doubt on appellate decisions that are out there.

[00:25:31] Speaker 03:
Instead, we look to what Congress actually did in terms of its legislation.

[00:25:34] Speaker 03:
Its legislation here didn't specifically preserve anything.

[00:25:40] Speaker 03:
It's in sharp contrast to the cases that the plaintiffs are invoking.

[00:25:45] Speaker 06:
There's a whole bunch of legislative history where, you know,

[00:25:51] Speaker 06:
members of Congress and Senators were saying that, you know, Bivens, you know, we're not touching Bivens.

[00:26:01] Speaker 06:
And the only way to interpret that is that they were fine with it.

[00:26:05] Speaker 06:
I mean, if I say I'm going to leave something in place, it's because I don't see it as a problem.

[00:26:12] Speaker 03:
I think the right way to read the legislative history is that Congress recognized that this was a court made remedy a judge made remedy that courts had recognized had implied causes of action in certain circumstances and that was comfortable with that continuing to develop as a judge made remedy.

[00:26:29] Speaker 03:
and wasn't taking a view one way or the other in terms of trying to ratify this as a statutory remedy instead to leave it to continue to develop in the courts as it has developed throughout the years up through Egbert in particular.

[00:26:43] Speaker 06:
I guess I'm just having trouble understanding how if Congress didn't express any concerns about the cause of action that was recognized in Dallas when it had an opportunity to do so.

[00:26:59] Speaker 06:
it would somehow be some sort of a violation of separation of powers for us to apply dealt.

[00:27:11] Speaker 03:
Your Honor, I think the right way to think about this is that Supreme Court has explained how to run this analysis and how to run it to make sure that it doesn't involve any sort of separation of powers concerns.

[00:27:22] Speaker 03:
And the Supreme Court has said the right way to do this is to look at the three Supreme Court cases in particular

[00:27:28] Speaker 03:
in determining whether there's a new context, and then to do a special factors analysis, which again, Dellums didn't do.

[00:27:34] Speaker 03:
And so therefore, Dellums can't form a basis to not apply the Supreme Court's current framework for determining whether or not a court may appropriately infer a cause of action.

[00:27:47] Speaker 03:
Your Honor, if there aren't other questions about the Westfall Act, I'd also just like to quickly address the national security concerns that are in this case.

[00:27:56] Speaker 03:
I think on the facts of this case, as it's been alleged by the plaintiffs, and as the district court emphasized, it's clear that there were national security implications here where there was a very large crowd of protesters directly outside the White House.

[00:28:11] Speaker 03:
There was a decision to disperse them right before the president made an appearance and walked across this park.

[00:28:16] Speaker 03:
And this court in the Quaker action cases that the plaintiffs are pointing to noted that the heightened presidential and White House security concerns that apply in that area, particularly when there's a large public gathering, because there could be bad actors who could infiltrate that group.

[00:28:34] Speaker 06:
And I think those concerns are- So let's suppose the allegations in the complaint were that the president and the attorney general

[00:28:44] Speaker 06:
there were two groups of protesters, some that were in favor of the president and Make America Great Again, and some that were Black Lives Matter.

[00:28:56] Speaker 06:
And the complaint alleged that the president and attorney general directed the Black Lives Matter protesters to be moved out and allowed the Make America Great Again protesters

[00:29:13] Speaker 06:
the state.

[00:29:15] Speaker 06:
Um, and then the lawsuit is brought in.

[00:29:19] Speaker 06:
They say, um, well, special factors, national security.

[00:29:23] Speaker 06:
What do we do with that?

[00:29:25] Speaker 03:
We're not asking the court to issue a broad ruling and to address hypothetical facts that I'm asking you that I want you to answer.

[00:29:32] Speaker 03:
Your honor, I can't get out in front of the Solicitor General and making sort of representations about a hypothetical case.

[00:29:38] Speaker 03:
I would point the court to the Wood v. Moss case from the Supreme Court that was about moving one set of protesters.

[00:29:46] Speaker 06:
I'm not going to let you say that because the Solicitor General isn't standing here, you're not going to answer the question.

[00:29:52] Speaker 06:
I mean, you need to help us understand the legal implications of ruling in your favor.

[00:29:59] Speaker 06:
I want you to answer my question.

[00:30:01] Speaker 03:
Your Honor, again, it's going to depend on the very particular facts of the specific situation, and you'd have to run the new context question and the special factors analysis, and it would depend on the specifics of what happens.

[00:30:15] Speaker 06:
Does that implicate national security for the president to say move one group whose message we don't like, but leave the other group there, leave them alone?

[00:30:26] Speaker 06:
Your honor, is that is that irrelevant?

[00:30:28] Speaker 06:
Is that an appropriate invocation of national security?

[00:30:32] Speaker 03:
Your honor, I think that scenario to the extent I understand the particular facts that are being raised could be a different situation than the one we have here.

[00:30:41] Speaker 03:
If the president weren't walking out into a park where there were a number of protesters and there was a concern about his safety and security here, we have that situation because these protesters were dispersed and then the president walked through the park immediately after that that dispersal happened.

[00:30:58] Speaker 06:
I guess another, what I'm trying to drive at is, are you saying that we have to credit any invocation of nationalism?

[00:31:10] Speaker 03:
Your Honor, I think the policy makes clear that there are times that national security is being invoked when it shouldn't be invoked.

[00:31:18] Speaker 03:
But here, there's a very clear and direct connection to national security, as this court has recognized in the Quaker action cases, because this was a large protest directly outside the White House.

[00:31:28] Speaker 03:
And the president then walked across the park after the protesters had been dispersed.

[00:31:35] Speaker 03:
And so here, the court doesn't need to answer sort of the potentially more difficult questions of when it might be too attenuated.

[00:31:41] Speaker 03:
Here, there's the very direct connection to national security as the district court properly recognized.

[00:31:52] Speaker 05:
What did you think of my state tort action possibility?

[00:32:01] Speaker 03:
It's common for plaintiffs to bring both a state law cause of action through the Federal Tort Claims Act and also try to bring Bivens causes of action.

[00:32:11] Speaker 03:
That's a scenario that arises with frequency based on the same conduct.

[00:32:19] Speaker 05:
I don't know if that was quite the scenario I was imagining, but I think I'll let it go.

[00:32:29] Speaker 03:
Your honors, unless there are further questions, we would ask that this court affirm the district court.

[00:32:34] Speaker 06:
Thank you.

[00:32:35] Speaker 03:
Thank you.

[00:32:49] Speaker 02:
I'd like to start where my friend on the other side left off with the idea of the Supreme Court's framework.

[00:32:56] Speaker 02:
Apply the Supreme Court's framework, he says, over and over.

[00:32:58] Speaker 02:
Apply the framework.

[00:33:00] Speaker 02:
The framework exists, the Supreme Court said in Egbert, for one reason, to respect the separation of power.

[00:33:07] Speaker 02:
So applying the framework means fundamentally figuring out what Congress would have wanted.

[00:33:14] Speaker 02:
And here, the idea that there is, according to my friend, no language.

[00:33:19] Speaker 02:
in the West Hall Act, as Judge Wilkins says, that's just not true.

[00:33:22] Speaker 02:
There is language.

[00:33:23] Speaker 02:
It says in B2A, we preserve this type of action very specifically.

[00:33:28] Speaker 02:
And as Judge Wilkins, I think as you also said, it's very hard here to say that Congress didn't take a view.

[00:33:35] Speaker 02:
If you leave something in place and say, affirmatively, we're leaving it, it is lack.

[00:33:41] Speaker 02:
And so the idea that Congress didn't say anything, they could have chosen to remain silent.

[00:33:45] Speaker 02:
They didn't.

[00:33:46] Speaker 02:
They enacted a specific savings clause.

[00:33:49] Speaker 06:
And that was relevant, that's been relevant before particularly- Your friend says, okay, fine, it's a savings clause, but it's a savings clause to the law as the Supreme Court interprets it.

[00:34:02] Speaker 06:
And so that's just what we do.

[00:34:06] Speaker 06:
Overruling Bivens,

[00:34:10] Speaker 06:
Leaving them.

[00:34:13] Speaker 06:
And so what we do is, is just by the business route.

[00:34:19] Speaker 02:
To two responses, your honor.

[00:34:21] Speaker 02:
First, if they were if if all my friend is saying is they were leaving it where it found it.

[00:34:27] Speaker 02:
where it found that Dellums was good law in 1988.

[00:34:30] Speaker 02:
If this incident happened in 1989, there's no question we would have a cause of action.

[00:34:36] Speaker 02:
The government doesn't disagree.

[00:34:37] Speaker 02:
The standard for overruling circuit precedent, a panel has to find that it is completely eviscerated at Saab versus SEC 873 F3rd, 297 at 311 from this court in 2017.

[00:34:53] Speaker 02:
So if he's just saying, do what exactly would have happened in 1988,

[00:34:57] Speaker 02:
It's dealt unless the Supreme Court has eviscerated it, which it has not.

[00:35:02] Speaker 02:
If anything, it's instruction to focus on the will of Congress.

[00:35:08] Speaker 02:
strengthens the implication that Congress wanted Dellums.

[00:35:11] Speaker 02:
I think another quote is particularly relevant here in the Smith case cited in our brief, one of the four in which the Supreme Court said that Westfall preserves Dellums.

[00:35:21] Speaker 02:
Quote, where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied in the absence of evidence of a contrary legislative intent.

[00:35:32] Speaker 02:
Here, Congress knew exactly how to make exceptions to when the government would be liable.

[00:35:39] Speaker 02:
They did it in the very next section, 2680, which lists about a dozen exceptions to Federal Tort Claims Act for discretionary functions and certain exceptional torts, extraterritorial incidents.

[00:35:52] Speaker 02:
There's nothing of the kind limiting the section we rely on, section B to A, preserving pivot.

[00:36:00] Speaker 02:
The suggestion that this court's decision in Lumiere, my friend's suggestion that Lumiere forecloses us, again, mixes and matches the deference required to Congress under ordinary rules of statutory construction with the new context, which was developed later and which Justice Thomas made clear in Tanzine for the court, you can't send back in time.

[00:36:21] Speaker 02:
That's a rule designed to protect the separation of powers by limiting the power of the courts to create new things.

[00:36:30] Speaker 02:
We're not creating something new here.

[00:36:31] Speaker 02:
Delos created it, and Congress says that is something that they want.

[00:36:38] Speaker 02:
Finally, with respect to the standalone special factors argument, the government does use national security as a talisman in violation of what Abbasi

[00:36:48] Speaker 02:
in violation of what this court did in the Quaker action case.

[00:36:51] Speaker 02:
The Quaker action cases, let's not forget, actually struck down restrictions on protests in Lafayette Square.

[00:36:59] Speaker 02:
And I think Judge Wilkins' hypothetical about the viewpoint discrimination in the square of two opposing groups shows that in the government's view, in the district court's view, Bivens is completely wiped out in Lafayette Square.

[00:37:12] Speaker 02:
That is not what Congress wanted.

[00:37:13] Speaker 02:
That is not what Congress thought it was doing in 1988.

[00:37:15] Speaker 02:
That would be a sweeping and striking rule at odds with the will of Congress and our constitutional tradition.

[00:37:22] Speaker 02:
For these reasons, we ask that the court reverse the dismissal of the bill.

[00:37:25] Speaker 02:
Thank you.

[00:37:25] Speaker 02:
We have your argument.

[00:37:26] Speaker 02:
We'll take it under advice.