Datasets:

prithviraj-maurya

/

court_listener-dataset

like 0

Case number 22-7142. Andre Ferguson, a balance versus Washington, and Republican area, transit authority. Mr. Tucker, for the balance, Mr. Guest, for the Evelie. Morning Council. Mr. Tucker, please proceed when you're ready. Good morning, judges. Justice, I am Charles Tucker. I'm here to present on behalf of Mr. Andre Ferguson. In this matter, the trial court of abuse is discretionary when it ruled on defense, most for summary judgment, as a matter of law. This morning, I'll be arguing three main points to support that. One, when they should court aired when, in determining the issues, first, that Mr. Ferguson's claims were time-barred, two, that there was no adverse employment actions and found out discrimination on the basis of race. The re most importantly, the plaintiff was engaging in protected activity at all times, and it was affirmed that he reported race prior to being denied opportunities at promotion. When the court found that the decision makers were different people, this clearly was not supported by the record. In fact, we're not a continues to contradict itself on several matters in regards to, whether or not the actors and the reasons for the denial of a employment opportunity in Mr. Ferguson was actually based on race. In fact, we believe that the depiction and what matter, which was granted some re-judgment, is flawed as a matter of law, because it's like a house of cards. It's based, at the base of it, you pull out one of the cards, the entire house will fail. It's based on a pre-disposition as ruled by the district court, that they provided a legitimate non-protectual reason for Mr. Ferguson, not hit and granted an opportunity in being interviewed. Not only were the actors the same in the 2017 and the 2019 denial of his employment opportunity, but most importantly, the reasons offered by Womata, clearly are not consistent with what the record has been submitted. Let me take the arguments in turn. Whether or not Mr. Ferguson's claims, the host of work environment, retaliation, and race are time-bored. Our position they are not, and it's supported by case law. We would like to present to the court national railway passenger court, first, Morgan 536, US 101, 122nd. The pre-incorrect case, we believe this is persuasive in that it deals with the case involving hostile work environment claims. In this case, the court pointed out that hostile work environment claims are quite different from cases involving discrete acts, most importantly, by the quoting from the case, because their very nature involves repeated conduct. We submitted a court in this case, the 2017 non-selection. Matter of fact, he wasn't even not selected. He was never interviewed. At the time of the 27 non-selection process, Mr. Ferguson had operated in that position six months as an acting director. He had preferred to the department, a electronic program that would benefit the way the business was able to do its job. What happened, he wasn't even considered. He was reviewed and given a role model by the performance evaluation as submitted for his leadership and his ability to lead the team. They selected Mr. Gregory Collins? Yes. What is your best evidence that these decisions were on the basis of race? That these employment decisions were on the basis. Sure. Should we? Our best evidence that the decisions were on the basis of race was because the actors involved acted according to, so I would answer your question two parts. One, the pattern and culture of Lamada has a history of racial discrimination. And that's not something that is being made up. Lamada has admitted to their leaders and teams in meetings itself. So the admission is one. Two, the actors as profored, provide conflicting information as to why Mr. Ferguson was not selected. They profored affidavids that are not supported by the facts of this case of what actually occurred. Mr. Ferguson drew attention to the individual that was selected over him. Mr. Gregory Ferguson, saying this individual has a racist issue and I've had problems when in the past on the basis of race. What happens? He gets selected for the job of which Mr. Ferguson was never considered. Two, during that tenure, a hostile environment based on racial discrimination takes charge against Mr. Ferguson. Three, to most important point, what Mr. Ferguson feared the most occurred in August of 2019, Mr. Collins was terminated for a workplace violation of workplace policy when he was violently and aggressively yelling at an African American female employee. See, it's not like Mr. Ferguson made this stuff up. Voice his concerns raised it, thus putting himself in protected activity, but they allowed him to remain under his supervision for Mr. Collins until it finally manifested into an incident where they finally had to act. So again, to answer your questions, I'd rather be, to combine best evidence that we have that this was non-selection on 2017 was on the basis of race. Was because one, Mr. Ferguson was very qualified for the job. How do we know this? He was operating in the position two. He was recognized for the operation of the position and the reasons profit by one motto simply don't make sense. But, Mr. President, this is put on a performance improvement plan. Is that right? Judge, by what mod is account he was, but when and why is what is being the question and the record does not support it. The trial court found that Mr. Ferguson didn't profit legitimate. I mean, Mr. Ferguson did not provide a legitimate basis for his defense that these were pre-textual. They were actually based on race. But looking at the record, it's actually the opposite. What's presented is one, there were emails. In the record, there are emails that they discovered that the pip that was allegedly presented to Mr. Ferguson didn't even look right. Because the signature look transpose by their own admission. For Mr. Ferguson's account, he was never presented it. This was something that was created. And it's not just my words. If we look at the transcript, see the the trial court looked at the transcript, Mr. Ferguson. They just didn't look the right place. Had they looked at page 178, we would understand how the pip was actually created. It was a conversation with Mr. Paul Merritt. Mr. Paul Merritt says, oh, by the way, I was going to consider you for the position. And this was in 2019 judge. We were going to consider you for the position this time, but you're on a pip. Mr. Ferguson with response, I've never been on, I'm not on a pip. Wasn't presented to me. Mr. Paul Merritt's response was, if you're not on a pip, I will create one. And if we look at the emails that are in the record, that's exactly what they did. In fact, in the conversation with HR, they have concerns at the appearance of it. And the way it was a never reported to HR, and it wasn't properly presented to the employee. So the creation and the words by Mr. Paul Merritt, oddly enough, Judge, this points out, Chief Judge. In Mr. Paul Merritt's affidated, he kind of left that part out. Again, this house of cards clearly fails because in this affidated, he doesn't point out the fact that he had a conversation with Mr. Ferguson. And he told him if the pip wasn't there that he would create. I'm sure my colleagues don't have additional questions for you at this point. We'll give you a little time for a bottle. Okay. Thank you. He was checker. Good morning, your honor. And may a please the court. The decision by the district court, granting one modest on Reggieadron, was a correct one. And I want to start with the failure to exhaust issue, which was pretty clear. One mod is sits in a different place in the district of Columbia. If you have to file a charges from the nation within 180 days as opposed to 300 days. There were three of Mr. Ferguson's allegations. One being the failure to be promoted to the TAMO position in 2017. Then now the opportunity to position a program to the executive management team and the late receipt of his paycheck in 2019. The court correctly concluded. Those three allegations were outside to 180 day limit. And so they were not considered because Mr. Ferguson failed to exhaust those claims. And that they're backed up by number one, the April 30th letter. You don't necessarily have to follow the habit of your charge of discrimination. If there's other findings to the EOC indicating what employees are going to do. And employees prepare to file this charge. But even in that letter, there is no mention at all. Of those three issues, the 2017 TAMO pay to be promoted. The failure promotion in 2017, no mention of the denial of the opportunity to visit the EACSI to the executive management team and the late paycheck issue. So those three allegations were properly disposed of. In terms of the retaliation claim, the lower court also ruled that Mr. Ferguson failed to exhaust his allegations under total seven for retaliation. So that's typically that he failed to mention in this EOC letter. Well, EOC letter actually, what his retaliation failed to check the box as well. And those claims were properly not in front of the court, and it lower court made the correct decision that those that redosa retaliation claims were not exhausted. One of the, I want to reserve from the back, and the the lower court did address Mr. Ferguson's hostile work environment. And one of the most argument was that. Mr. Ferguson's allegations were more discrete. Meaning that there were more that weren't a pad pattern of a hostile work environment, but he was trying to put piggyback as hostile work environment, claimed based on actual incidents of what he alleged adverse actions. So under his hostile work in playing, he included the Vader promote in 2017. He included the. That paycheck issue those issues that were properly that weren't that were not exhausted from the EOC. So the lower court did address those issues were mounted in its brief. Does state. We believe the hostile work environment claim was failed. Did not was not exhausted again. We have the charge of discrimination. It's not in his letter to the EOC. The hostile work environment box is not checked in the chart on the original charge of discrimination. Mr. Ferguson's. That doesn't, it doesn't matter that much. The chat, the box wasn't checked, right? It doesn't, yes, sure. It doesn't matter that much, but it has to be summed in particular. It's summed in particular, summed narrative to show that EOC what they're investigating. And that it wasn't there. There was nothing indicating that his allegation was a hostile work environment in the charge of discrimination. It would have alerted the EOC that these were also claims that needed to be investigated. So that, we're not a kept argument in for the sake of the court that the hostile work environment was also not properly exhausted. Moving on to the real media claim, the legitimate mandatory reason for his from not promoting or hiring Mr. Ferguson to the TAMO position in 2019. This is where the facts are important to you. Mr. Ferguson received a seven on his end of the 2019 end of year evaluation. I was an August of 2019. At that time, he's reporting to Mr. Collins. A seven one-one-moder's end of year employment evaluation mandates a performance improvement plan. What happened is that the following day, and this was given to him on August 1st. On the following day, Mr. Ferguson's goal was to win modest EAP program and take some takes leave. So, and he stays only in October 1st 2019. In between that time, what modest has reorganized the Department of Mr. Ferguson was in. So, and also Collins is terminated for unrelated issues. Terminated for yelling at a colleague. She happened to be African-American, but there's no evidence that it was he yelled at his colleagues because of anything he would raise. She just happened to be African-American, but that was not why he was terminated. He was terminated because he's a supervisor of yelling at her employee. There's no evidence that there were any racial connotation to that incident. But he's terminated in August 16th, 2019. Mr. Palamari, because of the reorganization now becomes Mr. Ferguson's supervisor. And this is when he has every intention to prosecute to interview Mr. Ferguson for that TAMO position, because Mr. Ferguson has been at the time, because Mr. Palamari was not supervising Mr. Ferguson in sort of reorganization. Mr. Ferguson is so much high up in middle management. So, of course, he would be considered if they work to hire for this director position. At that time, Mr. Palamari is told that from HR that there's employee, that he is an inherited that should be one of performance improvements planned. At the same time, Mr. Palamari is observing, because Mr. Ferguson comes back all for leaving our October. He actually is personally observing Mr. Ferguson's interaction with his colleagues. And he doesn't like what he sees. And at that point, he inquires with HR department, and they revealed it had that Mr. Ferguson was the one that received the seven on his 2019 interviewer valuation. He demanded it, they pet. That's why Mr. Palamari, at that time, because of his observations of Mr. Ferguson, decided that, at that, okay, I'm not going to interview him for the 2019 interviewer for the T.A. Col. position in 2019, but also the pit needs to be formalized because he received the seven. And that's when Mr. Ferguson is placed on performance improvement plan. But the decision not to promote Mr. Ferguson was not strictly because of the performance improvement plan. It was also because of Mr. Palamari's personal observations. And that is when modest non-discriminatory reason for not promoting Mr. Ferguson. Another, you also have the non-discriminatory reason. I understood from your, sorry, aren't I? I thought from your submissions, I also understood that you had a non-discriminatory reason to the effect that there was a belief that Mr. Ferguson was on a performance improvement plan. But that is, as well, because the seven, when the end of year evaluation, mandated the pit. So yes, the, it's not, it's not, it was finally formalized. And after the decision, somewhat after the decision, but when Mr. Palamari learns that he's supposed to be on a performance improvement plan, because of this seven, that way into the decision not to promote Mr. Ferguson. I'm, you are, and that's that is one modest argument, reserved for radio by time. Thank you, council. Mr. Tucker will give you two minutes for a battle. Briefly, hostile work environment claims by its nature supported by caseless scene and our brief clearly illustrate the reasons that they should be taken into consideration outside it of this jurisdiction of barbysically checking off the box. Well, modest position is that these are isolated incidents and don't really rise to the level of the exception. The exception, which in the case where a person in Mr. Ferguson's position can show a pattern in practice, as I stated earlier, this was, in fact, the pattern in practice. Show on came in the same individual that told Mr. Ferguson, oh, I didn't get your application. Can you submit it again? He submits it again and he's still not interviewed in 2017, even though he occupied the position. Second, when he's not interviewed in 2019, the same individual comes to him and said, is involved in the decision making of non-selection. The tip that they speak of, arguably, whether it was created and when it was created, Sean came and was not his supervisor. But he was involved again in this process. His name appears on the doctor text. How do we know it's doctor when we look at their own evidence, exhibit five and six in the record, support two performance plans that were allegedly given to Mr. Ferguson at the mid-year? In it, it details a lot of information and in one of the versions it shows seven that were modded justifies as the reason for his non-selection. Oddly enough, at the last question underneath the signatures, it presents the opportunity for a modter to indicate that he would be put on a pip. And neither version is the pip box checked off showing that there was never really a reason to put him on a pip that was part of a pattern and practice of racial practices by Womada. Thank you, Council. Thank you to both Council. We'll take this case under submission. Thank you.

Phase number 23-1757. Mark up here in NOL, Ms. Pierre on behalf of her minor child care and advance versus Bridges Public Tortoise School and District of Columbia Immunisable Corporation. Mr. Cyber for the Appalachian, Mr. Gerton for the Appalachian District of Columbia, Ms. Bound for the Appalachian Bridges Public Tortoise School. Good morning council. Mr. Cyber, please proceed when you're ready. Morning your honours. Mr. Cyber, before you begin, I'm at a loss to know why we didn't find out until yesterday that this child has not been in school, or at least at Bridges, all year long. Well, I think to directly answer that, the, it was not hidden by any means. I mean, this was something that the school system knew about. Did you know about it? Yes, I knew about it. And of course, at the same time. And why didn't you inform the court? Well, I guess because I think it's beyond the record for the first part. I mean, the IEP only lasted for last school year. So, I mean, this entire time. Direct effect on one of the defendants, the Bridges School, if he's not even in that school. Well, no, I respectfully disagree with that. I think that what needs to be mentioned all this, the backstory, okay, is that last summer, they had another IEP meeting. And at that IEP, Bridges decided to take away the homebound services for KAN. It's not in the record, but they decided to take the homebound services away. So my client was faced with, well, I'm not going to get any services at home. So what do I do? And she ended up finding a private school that would take him on a contingency fee basis. There was opening a new school in the district of Columbia for starting this last fall. So faced with no services at home versus getting something from the private school, she chose the private school. And I think it's important to know that the relationship in these these kind of tuition reimbursement situations for private schools. There's an equitable consideration where the child is more likely to end up going back to that same public school because the public school hasn't incentive to offer the child a fee. Because if the parent asks acts unreasonably in delaying or continuing for private school, she might get that tuition deducted or diminished. So there actually isn't incentive for that public school to take the child back to offer a fee upon offer the services he's entitled to under the IDA. And if you want a case for that, legate versus district of Columbia from this circuit addresses that point. Is your position that it makes no difference that one of the defendants? That is the bridges school is not, he's not enrolled there. Is that your position? That it makes no difference and hasn't been enrolled there for this whole year? Well, no, I think I mean, principally, the district of Columbia is responsible for the transportation support of services in my child or my clients child is seeking in this case. All right, but you've got another defendant you've sued bridges. Well, I mean, I guess that I don't think any of this was hidden from bridges. I mean, bridges knew what was going on. Well, I'm going to ask bridges the same question. Go ahead with your argument. Well, I think again because it's capable of repetition while evading review. So in my mind, this entire time, what's the current status? He's enrolled with DCPS and the district continues to deny him transportation from his president's door to school in all the way back. And then the school is not bridges anymore. The relevant school would not be bridges. It's another school. It's another district of Columbia Public School, correct? But there's the same issue about where and whether there would be a pickup at home. Correct. The state agency's obligation to transport the child all the way from his resident's door to the school in back. I can't just ask, what's the status of the IEP? That's the one that gives rise to the dispute. So IEP is only last for a year by their nature. And so the failure to implement claim was only good for the 2223 school year that it was active. But it's the same time that the legal issue in this case is a broader IDE question of what does transportation mean in the statute? What do you support a service as mean? So this is the exact type of legal question that's right for capable of repetition while evading review. Does the new IEP have the same terms as the one before us? No, because in the wake of the district court decision, the LAA decided to take that service off. So because of the district court's action, they took that transportation away from our lives. So the current IEP doesn't even doesn't provide for transportation services. It does just not the services between the boss and the whole. So I'm not carrying services. Right. But. But again, because the legal question in this case is, I mean the district court even said the judge said himself, this isn't failure to implement. This is about what does this child require under the I'd. What is this child entitled to under the IDA? What does transportation mean? In general, when a service gets put on an IEP, unless that IEP is challenged, the appropriateness of that service is presumed correct. But this district court said that's not the case. So the issue in this case is about the design of the IEP about what appropriate services are. It's not. We take the case essentially on the idea that even though the current IEP doesn't include the disputed service, everybody thought bringing an incumbent understanding that if that disputed service were in fact within the compass of transportation under the IDA, then it would be part of the IEP. So second to cut, your view is there's still a concrete dispute about whether transportation encompasses the pickup at home in particular the pickup at the door to the apartment because everybody thinks that even though the IEP currently doesn't have it, that's because that service was withheld by the district. If, if, as a matter of law, the IDA did cover that kind of pickup within the compass of transportation, then the IEP would include correct that the way you're looking at it. Yes, and the IEP would be inappropriate currently. But I thought the way these suits arise is that a service is included in the IEP, and then if it's withheld, it gives rise to an action to challenge the withholding of that. But if there's no transportation included in the IEP, then what's the, what's the precise claim before this court now? I think the claim is the same. So quite frankly, I don't think it matters whether the service is on the IEP. IEPs are not contracts. You know, IEPs are the, they're supposed to be the compilation of all of the services that the child needs under the statute. So quite frankly, IEP doesn't have to exist in order for the child's rights to the services that the child needs under the IDA to exist. The IEP is just the vehicle to memorialize the services, but if a service is not an IEP, the child is still entitled to it if he's entitled to it under the IDA. But not if there's an agreement. IEP could be kind of in a combination where everybody who's at the table gets together and says, you know, we've got some disputes about the parameters of this, but why don't we all just come together and avoid all that? By collectively agreeing on an IEP that doesn't deal with this issue anymore, we're all okay with it. At that point, there wouldn't be a dispute on the for us to. If my client waived or didn't think that this transportation was required anymore, then yes, she would waive her right to that on the IDA, but that's that's not the facts of this case. She's been insisting on this service since COVID, since the pandemic ended, if I can be so brave to say that. And we were returning to in person services. Can I ask you a question on the merits then if just to go to the merits? So the gear view is that the transportation encompasses hiccup at the door at the door that you're harming. Yes. And if that's true, and let's just assume for these purposes that you're right about that, I just want to explore the implications of that. If that's true, would it mean that that anyone in this situation where they had transportation services as part of an IEP would be entitled to pick up at the door, regardless of whether the parent is able to on their own assist the child to get to the parking lot of the curb. Because in this case, I understand that the factual predicate is that there's actually not a parent, at least for some days of the week, who's able to perform to carry the child to outside to the vehicle. And that's why there's a need to have somebody come to the front door and pick them up and carry the child. What I'm wondering is suppose that this case is resolved in your favor, so that transportation services is construed to at least be capable of going to the door to the department. My question is, would that then mean that that's what transportation services means? So regardless of whether a parent is able to carry the child outside the door to the vehicle, now we'd have a reading at the statute that would say that the parent doesn't have to do that anymore, because the school's obligated to, school's obligated to do that. If the child's disability, if the unique needs of the child require transportation between the school bus and the door of the residents, then that services required. So it wouldn't be required for all students with disabilities, because most students can't dislocate themselves between the residents and the school bus. Right. But it does put the onus then for that type of child who has that kind of disability, it puts the onus on the district to do it, regardless of the parent's ability to do. Correct. Correct. And I think that again, I mean all transportation convenience is parents. I mean I think that an IDEA services in general convenience parents. I mean a parent could provide faith to their child. And they're I mean I could quit their jobs, they could homeschool. It's not a requirement other than school attendance laws and the district. So you know, I think even with not disabled children, school bus services, it's not as if everybody can't take advantage of a school bus regardless of a parent's ability to themselves take a kid to school. And so in a way, the IDEA comes along and says that those kinds of services ought to be conformed in such a way that disabled children can get a benefit from transportation as well. With I guess the one caveat that in the district, there are no school bus services for non-disabled students, it's the school, it's the regular buses and the train. But otherwise, yes, I agree with with the statement. And I do see that my time is up. But you know, I think that, you know, particular to the district court's decision is that, you know, we're not trying to seek an expansion of transportation. I mean the ordinary and plain meaning of transportation is to move someone or something from one place to another. And the district court recognized that. But he thought that there was another narrower version. And that narrower version, unfortunately, clashes with other provisions of the act. And that means that it's, it, it didn't do a whole text reading of the act. And the only the broader definition of transportation moving someone from one place to another, jells with the rest of the act. So let's assume that I, again, just assume for our given purposes that on board with your understanding of transportation that it's taking so much from one place to another and here the one place is this home and the other places of the school. So transportation in this particular context means taking so much from home to this school. Then the question becomes, what does it mean to take somebody from the home? And would you think, for example, that if it's a situation in which the child, because of this, layout of the home needs help actually getting from point A to point B within the home, just to get to the front door that it could, the word transportation could encompass an obligation on the part of the district to go inside the home to carry the child from point A to point B inside the home and then on out to a vehicle. So, so no, I think that, first of my clients not asking for any services or not, but going on the merits of it, or the hypothetical, I should say. No, I think that under Tatron Garrett after Supreme Court was clear that related services are designed for the child to reach enter a remain in an exit to school building. And I think that, you know, from the door of the residence to the school and all the way back, that's reaching in that exit, that's cool building, but when you're getting ready for school, when you're dressing, eating breakfast, whatever to get ready for school, that's different in kind than reaching school. It's a precursor, perhaps, but it's different. It's not the same as reaching. So, I mean, I do want to add a caveat that I think if a child is in a homebound program, a residential program, then of course related services are required in the home of the residence. But no, when a child is just living at home, like this child, and attends day school, no, I don't think any related services are required in the home. Right. So, I'm assuming a situation in which the leach restrictive environment is the school, rather than the home. And so, it's incumbent upon the district to help get the person to get help, help get the child to school. And then the question becomes, in that situation, if it's necessary for the child to get to school, that someone actually come inside the home to help, then you would say, well, that's not encompassed by transportation because transportation stops at the residence door. Correct. I think the natural reading and the context of the ideas, it's the resident's door to the school and all the way back, and nothing, nothing larger. Additionally, I think it does need to be noted that, you know, the idea does particularly talk about unique needs, and it says it all over the place, it says it in the purpose, and actually, in this particular provision, the 1413G, the direct services provision, it says that when a state like the district decides that it's going to provide a regional or statewide transportation system, that that system is going to meet the needs of the children at service. And because the district has decided to take on all the transportation from the residence door to the school and back, they have to meet the needs of those students. It says so right in that particular section of the act. And I do want to say that, I don't, we're not seeking to enlarge the meaning of transportation. I mean, the adjective phrase is only going to modify transportation. I mean, there's other types of transportation. I mean, there's military transportation. I think the defendant brought up the crime of sentencing someone abroad from the past, or even transportation to a doctor's office, or it's a some other maybe service in the community or event in the community. So we're just looking for transportation, moving someone from one place to another between the home and the school and back, and doing that in a way that's designed to meet the child you need needs. And I think it should also be mentioned that or not be lost that, the IEP team got together. And they looked at this child and they said, what are the unique needs of this child? Well, this child cannot translate himself between the door of the residence and the school bus. And quite frankly, it doesn't matter that there are stairs. For KN, he couldn't do it even if there were a flat road between the residence and the school bus. He's not able to operate his wheelchair, not able to wield, wield himself. His cognitive deficits that even if he could those things physically, he might not even make it to the bus. He doesn't have the judgment that's required to do that. So, I think again that at the heart of this case are the unique needs of this kid. And the IEP team did exactly as opposed to. And unfortunately, then the state said, no, we don't think that that's required, and we're not going to do it. Even though they're policy, when you look at their policy, it says that we're going to provide transportation from the residence to the school and back. One round trip. And actually in the policy, it says we're going to use the address that you provide us when you verify residency in the district and the address in the record is the apartment. It's not the apartment building. So, I think with that, I've made my argument. Thank you, Council. We'll give you a little bit of time for a bottle. Thank you. And we'll hear from the district now. Good garden. Good morning and may please the court, Jeremy Gerton on behalf of the district of Columbia. I welcome the court's questions on any of the issues in this case, but I think it makes the most of the start, which I'm Henderson did on bootness. In our view, this case is moved as to bridges because the student is no longer enrolled there. And the only question really is whether the capable of repetition yet evading review exception applies for the injunctive relief that is sought here. And I think that is an ultimately factual question about whether there's a reasonable probability that the student will be re-enrolled in a public school either charter or DCPS is not already. We heard this morning that it's already enrolled in public the district. So, it's not entirely clear. We have been trying the last few days to figure out current enrollment status. We understand that they have submitted enrollment paperwork, but that he is not yet attending a DCPS school. Unfortunately, it is spring break and all the schools are closed, so we have not been able to confirm that information. But I think the ultimate point is whether it's DCPS or OCE, they would follow OCE's existing transportation policy. And if they represent that their intention is to re-enroll in a public school and not to move residences, we would come up to the same problems that we're encountering here. So, we think that would satisfy if the court is willing to accept their submission that that's her intention and that her intention is to move residences. We would ultimately, in a year or two, be back here addressing the same legal question as to the district. I did want to say one thing about in response to Mr. Cybert's letter yesterday. I, our position is that compensatory education was abandoned at the district level. He represents that they could still seek some sort of compensatory education award for the prior school year. They sought that front of the hearing officer. The hearing officer concluded that no under the virtual learning program. He was receiving a fap and it declined toward compensatory education for the 13 days at that point that he had been under that virtual learning program. And that's at J304 to 306. So, they had the opportunity to appeal that to the district court and declined. So, I don't think there's any award of compensatory education for that year that's on the table in this case or in any future case. So, I think that takes bridges completely out of this case entirely. So, unless the court has further questions on the moodness issue, I'm happy to turn to the merits. If the court reaches the merits, it should affirm the judgment below because the ideate does not provide states or schools with clear notice that they must enter the home or apartment complex, the medically fragile student and carry that student up and down stairs. And I think the best support for this really comes from Murphy, which says, you need to provide states and schools with clear notice. And what is a reasonable administrator? I want to understand this word transportation to mean. And I was, I was comforted to hear Mr. Cybert's concession that they would not ask the school to enter someone's home. That is directly contrary to what they said in the district court at page 732 of the J.A. Where they said yes, if that's what the child needed, you would need to go all the way into their bedroom and get them out of bed because our definition of transportation and supportive services has no limit other than the student's needs. So, I think that they've acknowledged here that there is a reasonable limit on what transportation means. They're drawing it at the front door of the unit. I think Aussie reasonably drew it at the front door, the outermost door of a residence. So, you just, you just, you started by saying that there would be no obligation to go inside an apartment complex. That's right. So, Aussie, if you have an apartment complex where the doors are all external, actually each unit has an external door. So, there's an entry to an entire complex that consists of 20 buildings. And the particular resident lives in the very back building. You're saying that the district could stop at the front at the street at the front and not have to go through the internal rounds. No, sorry. I apologize if I mispoke. Under Aussie's policy, and I think this is very clear, they will go to the externalmost door of a residential building. So, I had been imagining when I said apartment complex, something similar to this where all of the units have internal doors into an internal space. But, yes, if it's something more akin to a rowhouse, where each unit's door faces outside, they would go up to that unit's door because that's the externalmost door of the building and not from their policy. So, if you go to the external door of a unit when it's outdoors, but won't go to the external door of a unit when it happens to be indoors. Let's just take the outdoor scenario. If there's no stairs, then I take it that the district would have somebody go to the front door and suppose they're in a wheelchair, the child's in a wheelchair, and then the representative would get that child and wheel them to the awaiting vehicle. Yes, under Aussie's policy, that's what they would do and I think that's relatively common. So, but then if the child, for whatever reason, can't be kept in a wheelchair, say because they're stairs, then at that point, it's not the transportation doesn't cover going to the front door if you're taking them to the bus because you just said that if they're in the wheelchair the whole time and it's the pathway without stairs, it would be covered. So, what then takes it out just because there happens to be stairs. So, I think that there's two issues and your question goes to only one of them, which is the stairs and if whether or not they would need to physically pick up the student and carry them. So, that's one of that I think that the word transportation doesn't extend to and then the other one I'd issue in this case, but not in your hypothetical, would be entering into a residential building either the lobby of an apartment or a unit and that also we think is outside the definition of transportation. So, but just focusing on the carrying aspect, I don't think any reasonable administrator reading the idea and saying, well, we need to provide a transportation system for students with disabilities. That includes picking up physically with our arms, a student, medically fragile has a lot of special needs. Even though even though it would encompass picking that student up at the exact same door, the exact same distance and wheeling them. Yes, and if there's a way to navigate between an accident, I mean that's not the vehicle. I mean your your brief talks about transportation as has to be in a vehicle. Right. I think the wheelchair becomes one vehicle and then the van becomes another vehicle. So, I don't I don't think our brief was intended to say that there's nothing beyond a vehicle. I think that's the core of the definition is vehicle transportation. When we talk about department transportation or school transportation, we're talking about using a vehicle. I think Ossie's gone a little bit beyond that and said we will escort the student from the external most door. Right. You know, they're getting them to the vehicle as part of the transportation because you're picking them up at the door and you're getting school and that might entail wheeling the wheelchair from the front door to the vehicle and raising it and making sure the child safely onboarded to the vehicle. Yes, under Ossie's policy, yes. I think there are other school districts that might draw a line at the curb or at the bus stop and I don't know whether that would be whether that would be going as far as the idea requires, but Ossie has established a policy that gets you to the external most door of a building. You think it would be a reasonable understanding of the IDEA that all the district has to do is go to a bus stop. So there are certainly schools that do do that. The district doesn't have bus stops because the only buses they operate are through Ossie and so they'll go to the you know, closest curb or closest parking spot. So it's really not an issue here. I don't think the court needs to address kind of that. No, no, no, no, no, no, no, no, no. That's some of the district's position on that. So just to test out your theory. So if the bus stop is a mile away, then under that understanding it would be the parents obligation to somehow get their child to the bus stop and that would be all that transportation. I think it would be a much closer question and I think the distance between the residents and the bus stop would be a factor the court would consider. I don't think any court has applied to that question. And if the bus stop is really inaccessible to the family miles away, you know, then I think you have a question of are you really providing transportation at that point. So I think there are limits and again, I think this all goes back to Murphy, which we think directs courts and administrators to use their common sense about what is necessary for the student and to draw reasonable lines. I think other lines that courts have recognized include requests to transport a student outside the school district because of a custody arrangement and the eight circuit and Aussie who said no, we're not going to require schools to do that. There's other cases where parents have asked, we want it to go to, then to go to a different address because on such and such days, they're with this parent. And the court said, no, you can just provide, you know, neutral system. I mean, how many of these questions really relate to the meaning of transportation versus a determination about what is required to assist a student, you know, to benefit from special education? So I think we were to determine that transportation included the act of something like carrying. What there still be, you know, a further determination that we'll be necessary about whether that was required for the student to benefit from education? Yes, I think there would be and not sure that's really been explored in this case mostly because of the students who needs here, he wouldn't be able to navigate himself. So I think we've focused on the definition of transportation, which we don't think, I mean, I think even Mr. Cybert's argument acknowledged has reasonable limits. You have to draw a line somewhere. And I think if you just do that, what does the student need to navigate, then you're all the way into the students bedroom on the second floor. And you're requiring schools to enter people's homes, get them out of bed, and I don't think any reasonable administrator would think that's what the line is. So I'll see has, you know, to done a lot of work to consider where a reasonable line would be. And it said, out or most sort of the residents, and it said, we're not going to pick up and carry students, and we're not going to do something we think is unsafe. So you're not disputing that the need part of it is met, you're just disputing whether transportation is, it's as far as that's right. And I think even if, you know, we would have determined that the act of caring is transportation, we wouldn't need to remand for a determination about what was required to assist the student. I think you would need to determine that the act of caring is transportation, and I think you would need to determine that transportation extends all the way to the unit door. And then I think you'd be presented with the question under 1413G of whether the district has reasonably defined the scope of its transportation services as a related service provider. And in our case, I don't think even Ms. Puranwell's brief contest that the district has drawn a reasonable policy, and defines Aussie services. And so in that event, if the idea requires the service, then it would fall back on whoever the LEA is at the time we're talking about it. We could bridge it presumably in the future. It would be D.C.PS. So even under that scenario, the district, Aussie would not be responsible for that. The next is the question of, as between the district and a school, right, it's not a question as to whether the need part of the, so you can see the need part is met. I think given his needs, I don't think there's any been ever been any dispute about his particular context. In this particular context, I'm certainly not conceiting that any time a parent asks for something that there's no inquiry into the needs, but I think with this particular student, there's extensive evidence that's never been contested about his severe cerebral palsy and other needs that would demonstrate that he would not be able to navigate itself. So yes, for this case, I don't think that would be necessary, but I do think it would invoke the 1413 G question. And I think just one other point on what we're thinking about when we look at transportation, we point to a number of other sources that are consistent. We think our definition, including the ADA when it talks about transportation systems, and none of those sources talk about lifting and caring or entering someone's home. And I think that those are reasonable lines that Aussie has drawn, and we would ask the court to affirm that judgment. Less the court is any further questions. Thank you. Thank you for your argument. Thank you. It's bound. Good morning. Lauren Malm on behalf of Bridges, may it please the court. We agree with the district that the case has a release to Bridges is now moved. I apologize. I was not aware until last Friday that the student was no longer enrolled at Bridges. We had received Bridges have received notice in September late September that the student was enrolled in a private school. When we looked into the private school, it seemed like the private school was not yet operating in the district of Columbia. It was a New York-based school. So it was unclear whether the student was actually going to be attending there, whether this was some kind of future enrollment. So I reached out to the parents' council asking, you know, what does this mean? Is this student attending the school? Did not receive a response? I know that Bridges attempted to reach out to the parent. I'm not sure what response they got at some point. They did. I'm in a role to student. I just was not made aware of that fact. So I apologize for that. As it stands, there's no dispute that Bridges is no longer than the student's LEA and therefore no longer has any role in his education. As a result, there's no effectual relief that the court could grant with respect to Bridges. Therefore, we believe the claim as to Bridges is moved. When Bridges was the LEA, it is Bridges' position that it was in compliance with the law as it relates to transportation. As you've heard, the district of Columbia is uniquely set up with respect to special education transportation. The state education agency has elected to a sum of responsibility for that service for soint to 14, 13G and as such, the state education agency is responsible for implementing that service if it is properly documented on the IEP. Mr. Sibert himself admitted just a few moments ago that the IEP team put exactly as it was supposed to do, which is review the students' needs, document his need for transportation and related supports on the IEP, submit that paperwork to Aussie for implementation. At that point Bridges obligation as it relates to transportation is complete. While the district certainly does have some discretion as to how it provides transportation, that policy and those decisions cannot violate the IDEA or result in a denial of fate. If there is an exception that needs to be made to that policy, as a matter of law, then it is our submission that the district must make that exception. It's also our position that the district cannot abdicate its responsibility once it is assumed. So nothing in 14, 13G preserves a role for the school wants to state decides to provide the service. Similarly, nothing in Aussie is transportation, policy preserves a role for the school in implementing transportation, one that properly documents the need and submits that information to Aussie. So we believe it is clear that Bridges is not liable in this case. Thank you, council. Thank you. Mr. Sibert will give you two minutes for a rebuttal. All right, well to start with the last point. So we agree with Bridges that if you look at 14, 13G, that ESTC does have some discretion. The manner it provides transportation services, but the sentence or the last sentence in this section says that it still has to be provided in conformity with the rest of the sub-chapter, which is section 1411 to 1419 of the IDEA. And that includes the requirement to provide a free appropriate public education, includes the requirement to educate the child and the least restrictive environment with disabled and non-disabled peered. So they have some discretion, but it still has to meet those minimum requirements. Next, I think that the district brought up something about the home being accessible. And I think it's important to note that there's no inaccessibility exception in the IDEA. The district is trying to engraft that language into the IDEA. I think it's the exact opposite. When you look at the blevus 1412, it says, Congress setting, exchange for federal funds states, you're going to provide a free appropriate public education to all students within your jurisdiction. And the state understood that its jurisdiction is going to be the geographical territory of its state. So if a student lives on an island, in the state of the student lives on a mountain in the state, it doesn't matter. The state understood that it was going to educate all these students within the geographical boundary. I think that Mr. Gerden brought up a compet, and I do want to be clear that we received an award of compet at the administrative hearing. And it's important to remember that these claims have to go through an administrative exhaustion before they can come to the district court. So the reason that we didn't bring any compet for the latter half of the 2022-23 school years, because that claim wasn't exhausted yet. And it had to go back through the administrative procedure first. Additionally, I think going back to his enrollment in DCPS now, this child has the right to attend the DCPS school. So even if it is still in the paperwork process, it's imminent that he's going to be enrolled in DCPS. It's not a question of whether they can't deny him in education. He's entitled to it in the district. So lastly, I think I just want to close with what we seek in this case, which is Ms. Piers here, for you to order the district to transport Cane her son between the residence door of her residence door her apartment to the school of us and back, so he can attend school receiving appropriate education with his peers. Thank you, Council. Thank you all, Council. We'll take this case under submission.

K-123-1139, Mark King Gasco at Alp, Petitioners for Suscurities and Exchange Commission, Stubbiset for the Petitioners, Mr. Alvarious for the Witt's Fulmets. Morning Council, Mr. Bissette. Please proceed when you're ready. Morning, Your Honors. Michael Bissette on behalf of the Petitioners in this case. There are three major issues here today. First, the pending motion dismiss for Petitioner Mr. Gasco, the pending motion to supplement the record with the additional denial of form letter submitted by Fenderon Remand. Then, of course, the merits as to each of the Petitioners here. I'd like to first start with the jurisdictional aspect on the motion dismiss. Of course, the Exchange Act for both its jurisdiction when there is a final order from the SEC. Under the Bennett Test, Bennett Bispier, the elements in the final order require that there must be a consummation of the agency's decision-making process. One by which rights or obligations have been determined or legal consequences will flow. This test, the courts have held that it should be construed in a flexible, pragmatic manner. And here, generally, remand orders are not final orders unless that lack of finality is eventually resolved. So, in this matter, Mr. Gasco is portion of the appeal to the SEC. It was remanded for determination by Fenderon as to who issued the re-man to excuse me who issued the denial of form matter. Fenderon rule 13 to a three requires that the director of Fenderon is the person to deny form. And there was no evidence in the record as to whether it was the director or someone else. So, the SEC remanded for the sole purpose of that determination. So, can I ask you about the equitable claims and whether they've been forceded? Yes. So, when I read, we'll 2080 be. It's not clear to me that there are only three grounds for expungement. But it does seem to be the case that the SEC and Fenderon have said in various places for a long time that there are only three grounds for expungement. So, can that context, you know, what a party that is saying there are additional grounds for expungement have to make that quite clear both before Fenderon and then before the SEC. And how if the petitioners here done that? Sure. So, it's our position that it is not necessarily need to be outlined as to what grounds you're seeking expungement of or under. Expungement, it's been widely held at expungement is in fact an equitable remedy. Fenderon, 2080, does not, if you look at the language itself does not outline or state anywhere that you must submit these three, which is A, B, and C, false clearly erroneous, factually impossible. I don't necessarily disagree with that, but that does seem to be the agencies interpretation of how that will works. As there are three exclusive funds for expungement. Right. I mean, I agree that may not be the most natural reading of that rule, but it seems to be the reading that the agency has provided. Well, I think it's telling that first, again, it's not specifically outlined in that rule. And that arbitration forums are specifically for equitable remedies. There are no pleading requirements other than to state sufficient facts in a statement of claim submitted both for Fenderon. So there are not elements that must be met in a pleading like in a state court proceeding. So I think it would be unfair for the petitioners to be held to a higher standard specifically seeking expungement under an equitable remedy when an equitable remedy is necessarily the part and parcel of the claim that they're seeking. Additionally, it's our position that although not explicitly stated in the state of claim to Fenderon that they were seeking equitable expungement. Again, that is what they were seeking, but they did mention specific allegations that the public disclosure of the patently false allegations here and does not offer any public protection and has no regulatory value. That if not expunge customer dispute disclosures will mislead any person viewing the claimant central registration depository record and will not provide valuable information for decision making. And also ask in this the relief section for any other further relief that the arbitrator games just and equitable. If you put aside the kind of boilerplate language in the last part of it, it seemed like the rest of the items that you read they were just add junctions to the argument that there's false statements. Well, I really seem like those were just bound up and acclaimed that under the explicit items that are set out in 2020 80 fall city. Right, and again, it's our position that you don't necessarily need to put in the state in the claim that I am seeking expungement based on equitable principles that the nature of an expungement claim itself is seeking expungement based on equitable principles. There's necessarily a weighing of the equities when an arbitrator or judge or anyone determines whether expungement is warranted in particular circumstances. And here the petitioners did stay under the ABC the falls clearly are on a standards, but we're also stating here in that language I just described that. It's a totality of the circumstances argument here that they're saying, regardless whether it's false this will mislead people in viewing their public disclosure on the broker check record and because of that they're asking for expungement. Yeah, and considering whether this is a new rule that Fenrame that would have to have approval by the SEC. When are you going to help me understand what precisely petitions think is the new policy or interpretation, right, is it about the authority of the Fenrame director to withhold arbitration in this particular context or is the new policy or interpretation. Something about whether collateral attacks are allowed in a finra arbitration, you know, what precisely is is the new policy or or interpretation. So if I understand the question correctly, is it the fact that the director of finra is essentially issuing a blanket rule by passing the. Rule making procedure at the question. Well, that's one of your one of your arguments, but I'm wondering what precisely is the new policy or interpretation that you think would require a CC approval. So here with the director of finra is essentially instituting a blanket policy that says anyone seeking expungement of a disclosure that previously resulted in a prior adverse award is ineligible from seeking expungement in this forum. That is not listed anywhere in the rules and this is a blanket rule that is not contemplated by the plain rules of Fenrame 2080 itself and under principles of equity and as they change that. And it is and I think part of that argument is that the SEC declared that the director was making a case by case determination for each of these occurrences. However, I cited to an occurrence where a prior. The petitioner was able to expungement based on a prior adverse award. So this isn't a case by case or excuse me, not. And I think that's a very important point. But essentially, what the SEC is arguing. Is that the director made a case by case determination, but there's no facts in the record to support any analysis or case by case determination here. Is this just the fact that they were result that the prior or specific idea was that these were impermanible collateral attacks. So is it your position that the the finra arbitral rules or the finra rules generally do not say anything about collateral attacks? Because they do suggest I mean there are rules that suggest these arbitrations are final so maybe it's fairly implied from that that you can make a collateral attack. Right. We're suggesting that that is a new interpretation, you know, the bar on collateral attacks of finra arbitrations or arbitral awards. Well, I do think that the SEC placed upon the director of finra's determination this collateral attack piece nowhere in the denial of foreign letters issued by finra is a state that this was collateral attack on these awards is they just stay. You're ineligible because of this prior award, but has outlined in our brief it's our position that this is not a collateral attack on the award of the relief requested by each of these petitioners is removal of the information from the public database that describes the word broker check and or the CRD that popul populates the information there. It's not seeking to vacate the award, it's not seeking to reclaim any of the damages that were awarded underlying arbitration. It's not seeking to affect that original arbitration award and incapacity other than to remove the public disclosure of it in this database. I've got a point. I want to ask you about the lead, kind of, mark gas go. And I think I heard you say that it was we manned and simply for the director to make the decision. But if you look at footnote 32 of their commission order, it says because we are remaining to finra the proceedings of gas go so for gas go so for. We we serve the question of whether the same analysis that is the non finra arbitration that this arbitration service of Portland performed for gas go. Whether the same analysis would apply and then it says on remand the director should consider that question in the first instance. Now that April 25 letter doesn't explicitly say, oh, by the way, the fact that gas go came from Portland doesn't change the analysis. If we decide that we don't have jurisdiction over Mr. Pascal. What's your position on whether we should remand to let the finra answer the question that the commission told at the answer in the first place. So if jurisdiction is not found then we would request that be remanded and I think that would be the appropriate solution here rather than dismissal of the petitioner entirely. But to remand to address that specific issue, I don't think that. I mean the the SEC makes pretty clear in its decision. What the effect of its order is really stating. I'm not sure what the difference between an arbitration a final arbitration ward in one forum versus a final arbitration another forum would have any impact on the analysis here. But the SEC does make that statement as a footnote in their order. It must feel there is room there to have a different analysis. I think or they wouldn't have said we're not going to reach that issue because it didn't come from finra. Right, and the I'm on remand, finra did issue a new order denial of form order and again, they did not specify any further distinction between. Mr. Gascules arbitration award issued in the Portland Forum versus finra. The again stated that this is a collateral attack on a prior adverse award. And therefore he is ineligible from seeking expungement in that forum. Thank you. Thank you council. We'll give you all time for a little bit of time. Thank you. Mr. Aller's. Good morning your honors and may it please the court all alverts for the securities and exchange commission. Your honors as the commission's brief makes clear this court lacks jurisdiction to consider the petition for review by Mr. Gascules because there was no final order disposing of his application. The commission did not conduct a 19 F analysis that it did in disposing of the remaining petitioners who are properly before this court. And as council acknowledged the commission remanded Mr. Gascules application to finra. Because there is no final order. Asked Mr. Gascules application because this court sits in review only a final orders of the commission. This court lacks jurisdiction to consider his petition for review and therefore it must be dismissed. And on that point you asked about remand your honor. I don't think that this court has anything to remand because the petition is not properly for this court. So I believe dismissal would be the appropriate remedy here and not remand. Well, reviewing you may be right. We're reviewing the commission order and that order as I read it anyway said to finra not only does the director have to make this decision. But there may be a different analysis because it comes from a non-finra. That's right. Oh, that's right. And so I think what the issue here is. Mr. Gascules case is presently effectively still before finra because he hasn't presented. He hasn't submitted an application to the commission for review of finra's order. Now, the director's decision to deny access. Now in that petition, I don't want to speak for what they can argue. They certainly could argue well. Finra's director didn't make that determination. We would like for finra to make that determination or they could request that finra. The director make that determination. First instance. Is he not out of time? I don't think he's out of time for seeking commission review of his of of finra's. Of the April 25th he may be I don't know that necessarily. I think he might still be but he has it to the point is he hasn't brought this to the commission's attention. So there's really no analysis that the commission has done on that issue. And because of that. There's nothing for this court to consider because his his case effectively is still in front of finra because he hasn't brought it to the commission's attention in the first instance. could have been dicenffen . So we surprised him but I would say Technical Committee and Team is also making sense to be coach artists. And so I mean If we were to have a question what is important for the government was that motion has a member of the commission. Why embirted invasive, does this up in New York? April Commissioned Order. So let would give him to about June. And I don't know, I couldn't tell you whether the Commission would have resolved the issue in that time frame, but at least he could have made the attempt to do so, and attempt to kind of then join the petitioners here with the final Commission Order, and perhaps bring the Commission's order resolving his April to any fifth letter in as a related case or combine the two, but he never did that. So we are... I don't want to get into the wild blue honder, but we are an expert. Can you think of why the fact that the arbitration took place in a non-final side making any difference? These arbitration services, Portland and these others, do they have something different from finra or do you know? I don't know your honor. I think it was merely... And again, I don't want to speculate here as to what the Commission was thinking, but if I were to gas it looks like, in certain instances, you have arbitrators that are actually finra arbitration. And Mr. Gaskell's was years ago, I don't know whether it was before the NAST or before finra. I don't know exactly. So I just... I hesitate to say, I'm sorry, I wish I had a better understanding of what the Commission was. This Portland. Yes. Right. But state versus say, you know, this is an arbitrator that is under the auspices. So, but so we believe that the petition should be dismissed and turning to the Commission order as to the remaining petitioners who are properly before this court, the Commission acted reasonably and concluding that the director of Dispure Resolution Services at Finra acted consistent with Finra's rules and with the Exchange Act in denying the... Yes. Excuse me, are the decisions here that were made at the Finra director? Are they a kind of new interpretation or policy that would require SEC approval? No, I... No, not at all. Both with respect to the type of authority that the director can exercise as well as to whether you can bring collateral attacks in the Finra arbitra. Sure. I think these are not... This is not a new rule. I know they've... my friend on the other side is claim that it is. But the rules that, you know, as you alluded to in your questions earlier on, the rules well established that there are no collateral attacks. And I point this court to Rule 12904 being 13904 being which states that all awards are final and shall not be subject to further review or appeal. The first establishes that collateral attacks on awards are not promised. But I don't even take my friend to be arguing that collateral attacks could occur that he could... that petitioners could challenge the merits of the underlying original adverse arbitration awards against them. What? So, so, finality, I mean, in the... in the federal court context, you know, the finality requirement implies some kind of limit on collateral attack. Yes. But there are exceptions to that. And so, there's nothing specified in the finerables about collateral attacks or perhaps situations in which something that looks like a collateral attack might be brought. No, there's nothing specifically saying there aren't. You're not allowed to collateral attack. But I think fairly interpreted each of the rules do prevent such attacks. I think you again look to 13904 being 8312C of finerous rules. States that where there is customer dispute information that is rise to a final award. That information shall be made permanently available on broker check and in the CRD. And do you think that's reasonably and fairly implied by the existing rules? Yes, absolutely. I think also, you know, with respect to the directors authority, that's also a longstanding rule that permits the director to engage and to keep in function to ensure that finerous is utilizing its limited resources in a way that would make the arbitration for them most efficacious and most efficient and preventing collateral attacks on awards that are meant to be final. It is a reasonable exercise of that authority. I think the other thing that you need to keep in mind is that in addition to finerous, which place in emphasis on finality, the Federal arbitration act places an emphasis on the finality of arbitration awards. And I point this chord to 9 USC sections 10 and 11, which provide the grounds for when an arbitration award can be vacated or modified. And the vacator section is section 10 and in the vacator where they allow the award where the award was secured by corruption fraud or undo means or where the arbitrators were corrupt evidently partial committed prejudicial misconduct or exceeded their powers. And modifications arbitration awards in section 11 may be made only where there has been skriveners error or where there is some other error that has not affected the underlying merits that does not go to the underlying merits of the award. So those two provisions express congresses, policy and interest in ensuring finality and suggesting that that goes to the reasonableness of what the SEC did because it is consistent with arbitration act. I am saying that that shows that the SEC acted reasonably and interpreting the rules as they existed and interpreting the framework that congress set up for the review of arbitration awards and that that emphasis on finality makes clear that collateral attacks, even though there is not an express rule that says well you can't have collateral attacks fairly interpreted the rules that finner has established and the rules that congresses set up regarding the review of arbitration awards. Clearly shows that collateral attacks are not permissible and again I don't take the petitioners to be arguing that they could collateral attack, but their argument instead is not collateral attacking the awards because they are instead only seeking to expunge the allegations that gave rise to those awards. But there is a number of problems with that argument and I can see I have 15 seconds left if I may continue on this point if that is okay. The problems with their arguments are threefold the first is that argument ignores the fundamental fact that the original arbitration panels in this case found each of the petitioners liable and that finding of liable liability is critical here because the grounds for seeking expungement go to as Judge Snervasen stated they go to the issue of whether the allegations and rule 2880, rule 2880 states allegations claims or information was clearly a honest and that the person was not involved in the misconduct that was alleged. But by finding the petitioners liable, the arbitration panel in the original awards necessarily made the determinations that the allegations were not clearly a honest. We're not false. We're not factually impossible and that the associated persons the petitioners were involved because they would have to make those determinations if not explicitly certainly implicitly in reaching a finding of liability. The second problem for the petitioners and their arguments that they're only seeking to expunge the allegations against them is that they are actually not a single one of the statements that they are not being a victim of the statement. But by challenging the awards themselves, I'd like to point this for the footnote nine of the commission's brief which begins from page 32 of the brief. In that footnote, the commission details the nature of the expungement request that the petitioners actually made to finra. In those requests, the petitioners were not trying to be a victim of the statement. They did not provide false misleading information. They did not. They did not engage in churning. They had no fraudulent intent. They did not make unsuitable recommendations. They did not violate the federal securities laws. Each of those challenges goes directly to the underlying legal determinations and findings of liability for the federal legal law. The federal law is not a single legal law, but the federal arbitration panels and thus those arguments constitute impermissible collateral attacks. The third one is simply just as a practical matter with the petitioners are arguing for is an unfettered access even decades after the fact to the arbitration forum that they could argue on any argument. Outside of 2080B1 which we think is very frustrating. The MYBRTH TV is very clear at timeline. It is a historical entity to discuss with labor funds or I do have one more question. And it's a footnote again. Tell me what role that a court that has to confirm uh, uh, experiment relief has. Is it just a stamp of approval? Can it, second guess the award of expungement? Well, so I think the court has to, you know, sit in review as, as courts would. I don't think it's a rubber stamp necessarily, but the way that it says the ward must be confirmed. Yes, that's right. So I, this is, this is, I'll try and be very brief because prior to this, prior to this, this requirement being implemented into the rules. Arbitrators had themselves been able to just expunge records without resort to a court. And NSD and now Fynra created this requirement to provide an extra check and to allow themselves to oppose. And the categories in B1, uh, the Fynra said as the commission order, approving NSD rule 2130, which became 2080, uh, NSD and Fynra said that they would not oppose expungement requests where the three categories in B1 were met, but that they would continue to oppose expungement requests to the extent someone to the extent the arbitration panel made findings outside of those three. And so that's where that comes into play. Thank you. Thank you. Court has any further questions? Thank you very much, Your Honours. You counsel. Through the set. We'll give you two minutes for Rebattle. I'd like to use this opportunity to address a few of these points that were made. Um, one is that the confirmation portion, um, that Fynra would not oppose when the law campaigning report can be exposed or nuc'd in GFRIacle. Charityそれ is frequency, recommended under the A.B. and C. standards, that would necessarily mean that expungement is allowed if there are other reasons for expungement, like equitable expungement here. arbitrators attached or the awards that were made in each of these cases. The awards simply state finding a liability jointly and separately for an amount in damages, all of which were significantly less in value than what was requested. There is no specific findings as to, for example, Mr. Gaskell is liable for negligence, Mr. Gaskell is liable for unsuitability, none of those findings are present in any of these awards. So to say that it's necessarily a collateral attack because these petitioners are now seeking to expunge based on any one of these arguments is just not within the evidence. If you look at Mr. Wetzel as a award, for example, the customers were asking for over $170,000 in damages. Mr. Wetzel, along with the broker dealer firm, was found liable for $1. Not a single fact, since it said why he was liable, whether it was the broker dealer, or was him specifically. Additionally, you're allowed to pledge alternate theories of relief in the same claim. Just because Mr. any of these petitioners are seeking expungement under something that the director may consider to be a collateral attack doesn't mean that they're not allowed to seek expungement under alternate theories relief, such as equitable expungement for any of these other that I've outlined previously. Thank you, Council. Thank you to both Council. We'll take this case under such. Thank you.

Next in case number 22 to $95. enthrine? Mr. Denner, are you doing this on a pro bono basis? Yes, sir. As part of the pro bono panel. Yes, sir. Well, as a former chair of the pro bono panel, the second survey, and I'll be happy to have this panel. Thank you. Good morning, Your Honours. I may please the court. Pro say plaintiff Joe Baltis was subjected to years of threats, violence, and isolation, and rather than allowing him the opportunity to argue the merits of his claims, the district court improperly dismissed his claims on initial review and at summary judgment. The record evidence of defendants conduct and retaliation at minimum establishes material disputes of fact that Mr. Baltis should have been permitted to argue a trial. The district courts dismissal of his claims weren't reversal for multiple reasons, and I'd like to focus on three of them. First, the district court improperly disregarded numerous disputes of fact in dismissing Mr. Baltis's retaliatory transfer claim. Second, the district court ignored record evidence establishing that Mr. Baltis was denied due process when defendants failed to conduct meaningful reviews of his administrative segregation status. Third, the district court error in finding that Mr. Baltis failed to exhaust his administrative remedies under the PLR. Finally, my client also strongly believes in his claims pursuant to the Interstate Corrections Compact, and I'd like to touch on those as well. With respect to Mr. Baltis's first amendment retaliatory transfer claim, the district court improperly disregarded the material disputes of fact regarding the retaliatory nature of his transfer to Virginia. Am I right that the evidence pointed in one direction with respect to the causation issue? Namely that Virginia had agreed to the transfer and Connecticut that Connecticut Department of Corrections had also agreed to the transfer even before the relevant protected activity. You're on our, I think there is a dispute fact as to the timing of the purported decision to transfer. Mr. Baltis disputed that fact, including in opposition to his rule of 56 state of head and head, and he had a dispute the fact that there was an agreement between the two prior to his filing. You're on our, there are simply no evidence in the record other than a self-serving affidavit from every evidence self-serving. Trust me, have we bit of testimony of self-serving to some degree in some level? So let's say that we have no reason at this stage to say that it's not accurate. Is there something other than a self-serving affidavit? Well, is there something that we're about the self-serving in it? You're on our, I think the absence of any documentary evidence of the purported decision to transfer as itself relevant here. In addition, there is evidence in the record that Mr. Baltis provided notice to the defendants of his federal claims in October. So even if we grant the defendants that the decision to transfer him was made before the federal claim was actually filed, and the record that the defendants were on notice of that prior. But even to that, that would extend and weaken your temporal proximity argument. I'm not, it would extend the time. That's right, you know, I think the timing of the meal was October 22nd, so it was a couple of weeks, so I'm not sure it's substantially impacts it. And I would further note that this court has found that his bound temporal proximity on timeframes of five and six months. Which is far longer than the roughly one or two months at issue here. I'd also note that you seem, I mean, you have a lot on temporal proximity, and so what you just said, maybe not significantly, but at least expands the timeframe. But then back to my colleague's original question, seems to me the logic of the import of temporal proximity is substantially undermined by the notion that the transfer was started prior to the filing of the claim. You want to go to another thing that I would note is that in addition to the federal claim, Mr. Baltus had at that time pending a Haitiist petition as well, which could also serve as the basis for finding of temporal proximity here. Temporal proximity is sufficient to find a tell it. Was that an argument made before just a shape? Well, as you know, as well as the Baltus two case that was filed in July of that year, recognizing that that would also extend the time as to temporal proximity. That was a case that was pending, including in which one of the defendants that it should hear was the defendant in that case. Well, temporal proximity is sufficient here. It's not necessary to reach the issue because the disprocorp also improperly disregarded, um, subceive, uh, ample evidence that Mr. Baltus had evidencing that his transfer was retaliatory, including statements by Connecticut Department of Correction Officials during his transfer that he was being transferred in order to interfere with his litigation. As well as emails, uh, evidencing a quid pro quo scheme here between Connecticut and Virginia, there's rarely direct evidence of intent on a retaliation claim like this. And here we have an email exact to telling us what was going on between the two states. The district court improperly disregarded that evidence in rendering summary judgment against Mr. Baltus. So I see how that goes to causation and in a genuine dispute, but what about the amount healthy defense, again, focusing on the import of the undermining of the temporal proximity as a result of the transfer being initiated prior to the complaint? I'm sorry, you're on. I didn't call the question. I think the other issues you've raised go to causation with respect to the amount healthy defense, um, the fact of the complaint being, sorry, the transfer being initiated prior to the complaint being filed seems to me an obstacle. Yes, we're out of, we think that even if your honors are not inclined to find on that basis that the additional evidence would have been sufficient, even putting aside the question of temporal proximity to allow Mr. Baltus to proceed to trial on his claims. Unless you're on her to have questions on that, I'd like to turn to the second issue, which is relates to the question of meaningful review of his administrative segregation status. There, the evidence established that defendants did not conduct meaningful review of his status, and therefore failing to afford him to process during the more than 18 months in which he was in segregation. There's no dispute here that Connecticut regulations require segregation reviews that occur every 30 days, and that no such reviews were conducted here. Is there a requirement that Connecticut conduct those reviews as opposed to, or in addition to the Virginia Department of Corrections? You are our first note that under Connecticut regulations, they were required to conduct those reviews, but in any case, while he was in Virginia, you're honored there's evidence that Connecticut was in constant communication with Virginia as to Mr. Baltus' status, that he was in the communication with officials from Connecticut, all of that information would be relevant to the determination. I'd note that I was so glad to say that he was in Connecticut, going to review conditions of convinement in Virginia. You're on our aspect. They both have phones, but beyond that. How's that supposed to happen? You're on our, we think, because Connecticut retained ultimate jurisdiction over Mr. Baltus throughout his entire detention while he was in Virginia, that very responsible for conducting those reviews and... You're on our way to do it. I mean, you make that assertion, but it seems to... I just don't get how that's what's supposed to happen. You're supposed to, what are these supposed to do? You're on the we think that it would be incumbent upon Connecticut to undertake whatever steps are necessary to determine the conditions of confinement, and whether it's appropriate to maintain a defendant like Mr. Baltus here, in segregation from more than 18 months. Why weren't the classification reviews? Why were they constitutionally... Institution? You're on our own factor, this court established a set of factors that must be considered into totality to determine whether review is meaningful. Here, there's no evidence in the record as to... No documentary evidence in the record as to what was considered in those afforded classification reviews. I think... I thought I don't have my fingertips, but they took into account disciplinary history and... Security-related matters, it seems to me that's precisely the kind of thing that Proctor requires. The evidence, apidavit, on this point, states generally as to what's considered during a classification review, but there's no statement in the record of documentary or otherwise that says, here are the factors that we considered for Mr. Baltus during these classification reviews. So general statements as to what may or may not be considered in classification reviews generally is not sufficient here at the summary judgment stage at the least. And do you have... So we're at the summary judgment on this one evidence in the record that would suggest that standard process wasn't followed or that nothing was done or what you're evidence. You want to, I think, first again is the absence of any sort of documentation that these reviews occur. But the affidavit's on this point is to what was considered failed to mention the ultimate question that this Court recited in Proctor, which does the defendant belong should be defendant remaining in segregation. There's no evidence that that overarching question was considered. But isn't just a pickup one that I thought one of the factors was directed at that question, if not in specific terms then certainly in general terms. You know, I think there's a review of the need for ongoing administrative segregation as a part of the Court, you know? I'm not sure that specific question is part of it. I recognize that certain of the factors that defendants' content are considered generally in classification reviews might go to that ultimate question. But there's nothing in the record to establish whether that question was in fact considered here. So that's the ultimate point. So let me ask you, maybe this follows up on just Parker's question, but it's a little bit of a different question. I'll pose a hypothetical. Let's just suppose that the Virginia Department of Corrections system of review is the best in the country. So it's every two days it reviews whether administrative segregation for particular inmate is justified. And it has a whole panoply of different things that it looks at in making it review and it's proctor plus plus plus. And Connecticut engages in none of that review. Can we consider the fact that Virginia is the best in the country in connection with its review and determining whether there's a genuine dispute of fact? I think Connecticut is the state retaining ultimate jurisdiction even in that scenario would be required to conduct a handful of review. I like to think that there's no sort of right line rule that applies here, but I like to think of perhaps a slightly different hypothetical, which is if we assume Mister Baltis was not housed in Virginia, but maybe in a private prison. It certainly wouldn't be appropriate for Connecticut to see its responsibility to the private prison to undertake review of his status because Connecticut is the one that retains ultimate jurisdiction. Now obviously Virginia is a sovereign. It's a very it's a different situation to recognize that, but there's nothing that permits distinguishing the locates the locusts of transfer the receiving prison in order to determine whether or meeting will be. But it may be this goes to your I think you call it your fourth argument the SEC argument. But you know there's a pursuant to contract a or a compact a receiving jurisdiction, an issuing jurisdiction. And they sort of made an arrangement that yes there is we have jurisdiction over this in late. But we have some some measure of responsibility. But ultimately the receiving jurisdiction is responsible for administering where the person is going to be discipline for example and so on. What's what's wrong with that picture? As a matter of the ICC or the so on. You're not sure anything is necessarily wrong with that setup. But the compact issue here as implemented by Connecticut states that its Connecticut's responsibility to retain ultimate jurisdiction. And that inmates are entitled to receive all legal rights in the receiving state that they would be entitled to in Connecticut. And again, not because Connecticut, he's a Connecticut person. We're satisfied that the Virginia Department of Questions just again, empathetically has done everything right with respect to justifying ongoing administrative segregation. You're if you is that that's still a violation of his of his rights is to process right. You know I think it would remain Connecticut's responsibility to start a huge it tells us that is there or is this loose guy so this because this is open in open area. I'm not sure that there's a case directly on point for this issue. But in the hypothetical that you're on our post I think Connecticut could easily satisfy its obligations here by taking a look at the Proctor plus plus plus that process that Virginia has and think, okay, looks good. Well, isn't there on this record and maybe you alluded to this. Some evidence I think I'm about it that Connecticut wasn't touched with Virginia. And it wasn't that enough because there's no evidence that Connecticut undertook that particular analysis. There's evidence that they were in contact, but there's no evidence that they were in contact for Virginia saying for example, hey, we looked at these ten factors. We determined that if you continue to belong in segregation and therefore we're going to keep it there. I recognize that I'm far over time. This is actually you're answering questions, so that's very helpful. When you stop answering questions then it's not necessarily understatement. So I'll ask what you third argument. The third argument relates to the district court's finding that Mr. Bolsa failed to exhaust his administrative remedies under the PRA which was also an error. The operative regulations in Connecticut require transport inmates to exhaust remedies of both the state in which they're housed on this case Virginia and the whole soul of Connecticut. There's no dispute and the district court correctly found that Mr. Bolsa properly exhausted his remedies and Connecticut. Mr. Bolsa also offered sufficient evidence that his administrative remedies in Virginia were unavailable to him due to the threats and violence that he faced from department of course. The district court again rejected this evidence as reportedly too speculative. For example, the district court disregarded Mr. Bolsa's testimony that DOC officials threatened him not to file for the grievances and directed violence against him because the district court said that that testimony allegedly did not identify names and dates on which a threat occurs. Mr. Jefferson's declaration after David did. He submitted an affidavit and this is at, join the appendix of 592 to 594 and this is our top side. Yes. Yes. That's right. Specifically, identified names, dates that all of these things occur. And the district court simply gave no weight to that evidence and instead found the opposite that there was nothing in the record that would support Mr. Bolsa's testimony and found it. I'm sure that. So the district court actually mentioned Mr. Thompson's affidavit and said what? It didn't make a specific finding with respect to Mr. Thompson's affidavit. But gave a general overview and concluded that Mr. Bolsa's testimony was too speculative and conclusive. Well, no. And so you mentioned Mr. Bolsa's testimony. I'm asking was there a reference that the district court acknowledged a grapple with Mr. Thompson's affidavit. I don't recall specifically whether that just a court mentioned it. And I apologize, Ron, I was perhaps wording it a little vaguely. The district court concluded that Mr. Bolsa's arguments in general were not supported by dates and names in order to support his claim that the process was unavailable. The record is I rated reflects that your time was, and I'm not saying a lot of these things, but was an unusually abstractorous, dangerous, violent, and made to every working went was a threat to institutional safety and security. Do you have any constitutional significance? With respect to exhaustion of his administrative remedies, I don't think it does, you're on our. You can have an inmate who hypothetically has done a number of bad things, right? And they still are entitled to exhaust the process as it set out. And here, Mr. Bolsa simply wasn't permitted to do so. And as a result, he was then unable to file grievances in Virginia, and then the district court dismissed his claim by finding that he hadn't exhausted his remedies. Thank you very much. And so on summary judgment, the district court, we think improperly found that the claims were too speculative and conclusive and that the record, or employee supports Mr. Bolsa's arguments. Thank you. Thank you. Thank you. Good morning. Good morning, your honors. I may please a court. Assistant Attorney General Dennis Mancini for the helleys, David Myga, Roland Cook, Angel Kiro, Jackland, Ozden and Jessica Saman. Your honors before this court is an individual who is historically been a, one of the most dangerous and most latigious inmates in the state of Connecticut. He has a long history of, well, before that I should say that he is serving effectively a life sentence and as a result of that has no incentive to follow anyone's rules. So that includes the hehehe. So we are here because there are serious constitutional claims. And the constitutional claims supply to him and to everyone. Absolutely. So, which is just to stress those. I will and I bring that background because it has to do with the, the transfer issues and also, it also goes to the exhaustion issues and and I'll address that. I'll address both of those. With respect to the retaliatory transfer. Well, with respect to the retaliatory transfer, there wasn't a retaliatory transfer. He was transferred because of his long history of abuses in the department of direction. Because of the number of incidents that he had in the difficulty with housing of a Connecticut. What about the seeming background patterns transferred from Connecticut to Massachusetts. And then immediately the state argues that that moods prior claim. And then as soon as that's the space, he's been transferred back to Connecticut. And then he's transferred from Connecticut to Virginia and. And he's been sent to the same pattern. Follows. Right. So that's actually not the way that it happened. He was transferred to Massachusetts. There wasn't argument about about just missing the, the hebius that was here. Well, I guess take even taking a step back from that. All these individuals are individual can have individual capacity defendants. So the hebius was nominally for regards to role in cook. But that was only in his, in his official capacity as a commissioner correction. So these are all individual capacity defendants not necessarily associated with those claims. No, I understand it's not what's in issue, but as background. No, understood understood. And when he went to when he went to Massachusetts, So was the case was dismissed because he was no longer an administrative segregation. That was his claim on the habeas. So that's that's what happened there. It wasn't. And he was happy. He was he didn't make any claims that the transfer to Massachusetts was retaliatory. It was only the transfer to Virginia. When he went to Virginia, he, there was a, the case was raised that he was no longer in Connecticut. But that's not why the case and that's not why both as two is dismissed. Both as two is went to trial and was dismissed because of his conduct before the court. And I did, I did address that in my, in my appendix, the common study made. And again, that goes to his unrulyness to, to follow the rules and to follow the department of the court. Once that case went to the point where he didn't feel like he was going to get what he wanted from a judge. He lashed out at that judge. He also lashed out at a judge in Massachusetts for the letter that he sent to that judge. Following his return to Connecticut. And, and that's also in, in the record that I, that I provided that letter that he sent to Massachusetts for all he was in northern. So all, all of these go to the fact that this, these transfers were not retaliatory. That, the, the, the, the, the, the, the, the, the, the, the, the history goes, and in regards to the Temple all proximity. The first request to transfer him out of state came in 2006 team that with the warden and, and garnered that request was not completed at that time. The request again was raised to, to, to transfer him because the, the issues that persisted. He went to Massachusetts, he came back to Connecticut. While he was in Connecticut, he assaulted a correctional officer. He just, he disputes that he says that he was, he was, defending himself. But regardless, as a result of that, he stayed in Connecticut. But as soon as the, and there's emails that show that from, it's attached to the declaration of attorney, my, uh, from defendant, my, uh, there's emails from attorney, San, a defendant, Sander to defendant, my, uh, that say he's in Connecticut. We're going to keep him in Connecticut. Let's start to look for someplace else to transfer him to is that okay. And I believe that the response from that was September, September 19th or 20th somewhere near around the end of September was already the discussion of, of trying to find another state to transfer, uh, the, the, the, the allegation that, uh, the, the desire to transfer to Virginia, some sort of punishment because Virginia was this terrible place. Also, doesn't, doesn't, isn't worn out by the record. Virginia was the only state that was willing to take him. I was the only state that that would, would be able to accommodate, uh, the remote court proceedings, there was some difficult, difficult, with remote court proceedings while it was Massachusetts. So that was one of the concerns that, uh, was considered when the, the determination to send it to Virginia. So the, the record is clear that the retaliate to, that the transfer was not retaliatory in any way. Which you have to do process. I will. Uh, as the court, as the court had already indicated, I, I think, simply, uh, the, the, the, classification hearings that took place in Connecticut had no effect on his classification in Virginia. Although he was in, administrative, or in, uh, segregation in Virginia for 18 months or whatever the, the state and was, uh, part of that was his own was his own doing. Um, his classification in Connecticut remained the same. He transferred to Pennsylvania initially. Uh, he was in, uh, segregation for a period of time while he, while he did his intake. And then he was sent to, uh, sent to general population who was initially in general population until he was assaulted. And then he went to that restricted housing. After that, there were, uh, he had opportunities to transfer out of that facility or to return to general population. And he refused all of those, uh, and that is in the record. Where's that? I could. So you, uh, so you refuse to go back to general population. He refused to be transferred to a different facility. There was numerous occasions. Okay. It was numerous occasions where he was offered, he refused to sign all those. Those are all in the record. I don't know. With it, does that indicate whether he would be held in, um, segregation in other facilities? I don't believe that the, that the, uh, record reflects that he would not have been held in administrative sort of, in administrative sort of, in other places. But you have a different, you have a different, I can find it. In fact, I just have one moment. Good. If you can't find it, uh, quickly, then, uh, after, uh, your friends, uh, who have bottled maybe wool, you've just provides with this one moment, please. It is, uh, joint appendix. There's attachment used as certain joint appendix, 304, 305, 306, 307, 308, 309, 310, 3011, 312, 312. All right. We can begin. All right. We can begin. We have the picture. Yeah. I thank you. Round three, four, to three, 13, and 14. Those are all the transfer of office that were made to, um, the Shivalta's, which he refused. He refused to sign a few steps up those transfer requests. So, all of that was the reason that he, that he remained in administrative psychation for a thought. So, at least to my mind, uh, there are, you know, maybe, one, two issues, but the two you heard the colloquine with your friend on the other side, um, one is Connecticut's independent obligation to review, uh, and the other is, uh, the classification reviews and whether they satisfy the, as a matter of the scoring, uh, what we, um, have insisted on in part. And, and I'll address that. So, uh, the first thing is that there was a lot of emphasis placed on this wasn't meeting Connecticut's or Connecticut administrative, uh, requirements. And that's, that's not the constitutional floor. The Connecticut administrative directives do not, they're not set constitutional front, uh, do not, are not the basis for a constitutional violation. That's the first thing. The other thing is that, as the court noted, uh, it was Virginia's duty to, to manage him. It wouldn't, it's, it wouldn't be appropriate for Connecticut to tell Virginia how to house this in me. Connecticut does not have the, just like it wouldn't be appropriate for Virginia to tell Connecticut how to house the inmates that are, that are, that are, that are, I don't think, just to be fair, I think, to, to the other argument of the counter argument. I think that the, uh, uh, contention is they, there's gotta be, at least on some reshesement, some showing the Connecticut undertook, not telling Virginia what to do, but undertook some form of, uh, review itself, uh, sep into part from whatever it is that Virginia did. Well, I think the record is clear that Connecticut did do its own reviews. Uh, I don't believe that did any reviews of Virginia. But again, it's, uh, Virginia is in the best position to be able to determine how it made sure of the house in Virginia. Connecticut doesn't know what the, the intricacies of who, who, what, and, and makes her dangerous or what in meter or troublesome. Uh, so what is, what is the nature of the review that Connecticut undertook? Connecticut, I, I believe, just reviewed the, the information that Connecticut had with respect to his, Connecticut, Connecticut. And, and, and, uh, what, just, say noted that even if, uh, even if it was, air, it was almost air because it would not have had an impact on his classification for Virginia. And again, when, when Mr. Paul to survive in Virginia after his initial, uh, intake, he was placed in general population. And despite what his, despite what his status wasn't Connecticut. And he remained in, uh, administering certification in Virginia because of his refusal to, to be transferred. Okay. I'm, I am at the end of my time. If I, if I could just address the, of course, uh, so I'll soon. Yeah, I will address that. Uh, I think that the, uh, district court correctly, uh, correctly assessed that. I know there was some, some discussion about Mr. Thompson's tell us. Yeah, which you address. And I would, and I will tell you, I have, a hard time unless, unless the argument. I understand. So, is one that rests on the miscibility. There's, uh, I'm, I have a hard time. There's two things. So first is that, uh, Mr. Boltis had his own separate, uh, uh, affidated with, with respect to exhaustion. So I'm, Mr. Thompson's, uh, affidated with, wasn't the record. He didn't specifically cite directly to it, as required, uh, for his posts say. But he has, he's a, he's a very experienced, he's a very experienced litigate in your honor. I, I think, I think so, but understanding that, he is, he is very experienced. The second thing is that Mr. Thompson's, uh, affidated itself is internal, and consistent. And one, in his, tight statement, he indicates that, uh, inmates in the, in the restrictive housing unit were unable to communicate with each other. They were unable to talk to each other because they were, uh, in cells that were, uh, and, and if I can find it, find the exact, Partly I'm speaking about what he said that inmates were in, cells that prevented them from communicating with each other, but clearly he's able to communicate with the turn, with plaintiff, uh, politics. So that, that part doesn't really make a lot of sense. There's also the issue that the, uh, which, uh, should, you know, that Mr. Boltis had filed the separate lawsuit in Virginia, uh, claiming, uh, retaliation and threats by, uh, Department of Correction officials down there, and that court also disregarded those, those claims and he did it, uh, Judge Shade did address that in his brief. Did Judge Shade just have to remind me somebody? Did he specifically mention, uh, Mr. Thompson? He did not, he did not say no. And, uh, so, uh, and so he did, so he did, he did refer to the internal, in consistency. He did not. He did not. But I, I would like to point it out if I could. Yeah. On 593, so, uh, paragraph 14, while an RHEU, I began to speak with Boltis and then it continues. And then in 24, he talks about, uh, the conditions and restrictions, experience and origin, pod or inclusive, but not limited to, and the third line down absolutely no social interaction, or activities of any kind. And then he says, uh, total five outside recreation cages and closed by inch, inch thick, plexiglass that makes it impossible to socialize or interact with peers and just, and had Jason cages. So he says that he's not able to communicate with other individuals, while he's in our issue. But clearly, but then previously says that he is, that's terrific. Terrific, terrific father for cross examination. The question is on somebody judgment, whether he is said enough, or whether this is enough, uh, to, uh, create or generate a genuine, dispute of fact on exhaustion. And there's a reference, you know, uh, just say, it's great judge it in my view, um, uh, says that, uh, one, one basis for, um, uh, rejecting the exhaustion issue, uh, and granting some resuzement, is that it's, that, that the claims were too conclucary, the argument was too conclucary, and that the facts, um, as related by Mr. Baltis, uh, were too conclucary, but you look at, yeah, there were no names as so on. You look at Mr. Thompson's affidavit, there are names, uh, there are, um, you know, specific places, um, uh, and it talks about a hit listing me, me, so, uh, a statement against interest, uh, Fort Fort A hit on an inmate, and I think, well, in, that is, that seems to be material to me, and the fact that just shay doesn't even mention it, uh, makes me wonder, appreciating that it was not necessarily raised, uh, for biophozy, other than, makes me wonder what, what are we to do with this? And so the extent that you are relying on internal inconsistency, what we've said is that we only reject, um, an affidavit, or testimony, when it's unequivically, inconsistent with something else that the person has said, I don't know the disease qualifies, so, to help me. Again, I think that the court takes, uh, takes, there's, there's already a disbelief in, in these kind of retaliation claims, because they're so easy to fabricate. Uh, and I think that's part of it. There's also, although these, there's discussion about, It's, it's, it's, it's, it's maybe easy to fabricate like we can standards for years. But it's a little unusual to have another inmate who submits an affidavit saying, yeah, I was listed in two for a hit. And then there's actually an assault. This didn't mean it's not the one that could there was an assault. But then there's actually an assault. This, well, this statement was made act of the act of the data that assault. So I mean, I don't know what his motivations were, assuming that these statements are, I don't know what I certainly can't speak to his motivations. Obviously he would have had an information about that assault. I don't know who typed up this affidavit or how it was, right? I know those are not necessarily questions before the court at some of your judgment, understand it now. But there's, there's also general claims. There's not necessarily talking specifically about him filing grievances. And I'm not saying that if you talk about pushing paper or filing lawsuits. And there also says, at 15, while housed in RHUB416, next to Baltus in B415, I repeatedly overheard unit manager Miller and Lieutenant Lambert threatened Baltus and instruct him not to write anything up. That's J-A-593. That's a threat for five weeks of thing. There was an ask, I asked, well, I suppose that's the answer. He also has to demonstrate that he was actually in fear. That's also another thing that he asked in the demonstrate. That his fear was reasonable. And that the fear actually prevents it. Well Lieutenant, the unit manager threatening him and instructing him not to write anything up is, are we supposed to do this in a light paper for part of him? But, but the, not was standing at. He still has to demonstrate that he was actually in fear based on these statements. Even if, even if somebody had said those things to him, he'd have to demonstrate that he was actually in fear for me. All right. Okay. And the other thing that I do want to address is that the exhaustion issues only dealt with a small subset of the claims. No, I understand that. Yeah, it's, there was only, and all those claims. And, and over arching, over arching with all these claims is that the Connecticut defendants didn't have any personal involvement in any of the issues that took place in Virginia. So that relates to the, so if we were to disagree with you about, or with your shame, that's really about the conclusion of the statements and so on, then you're saying there's a separate issue that we need to grapple with, which relates to Connecticut's involvement. There, Judge Shade didn't, didn't reach the merits on those claims. He didn't reach the merits, so we would send, it would go back to the district court to make that determination. It would go back to the, and that's the first, there's a, the sixth Amendment claim and the, the, in, the Virginia claims, the ones that were, were related to the exhaustion were a first and sixth Amendment claim arising from implementation of Virginia's DOC procedures and an eighth Amendment claim related to a safety concerns while housed at the Red Onion state prison. Those are the two claims. The other claims, maybe, is this, is this the sixth Amendment claim? There's a sixth Amendment claim, yes. So, is the first Amendment, he's got a male claim? The male claim was a, yes, the male claim. So, the first Amendment, male claim, six Amendment claim, the Amendment claim has the exhaustion. Those were the ones that, that, that, that, that. The whole relationship didn't reach the merits because he, he got to exhaustion. And those were all claims related to his confinement in Virginia, which, again, it was, we raised the issue at, at summary judgment that they were, now, there's no personal involvement, which I'll, which I'll show you, and reach that, he didn't reach that, because he, he, just, just, to expose those claims on exhaustion. So, we would, we would still say that there was no personal involvement, they would be entitled to qualify the immunity on those claims, but, which I'll, which I'll show you, and that, that's an overarching issue that there was no personal involvement from the Canadian fans, I'm, I'm, I'm most of these claims. And at, at this point of my one time, the list of court has any additional issues. Thank you, sir. Thank you very much. Thank you. I think, defendant's arguments, both in the briefing, and today, underscore exactly the issue here, which you're on a correctly known, which is what summary judgment here. There are numerous disputes of fact, the defendants repeatedly dispute the facts, as Mr. Baltis asserted them, but on summary judgment, we have to credit his arguments, and the district court simply failed to do that. I want to touch just briefly on each of the claims. First, with respect to retaliation and temporal proximity, I just want to lay out the timeline, because I know it's a little bit confusing here. Defendants contend that a decision to transfer him was made in early November. Mr. Baltis disputes that, but even if we assume that's right, prior to that, it will be roughly three weeks prior to that, and this is it, J-A-473. Mr. Baltis provided notice of his federal claim. So we're talking about a three week period from the decision to transfer if we're contending that that's irrelevant to him. And in addition, he had a previous claim that was pending for approximately five months prior to that. With respect to the self-serving affidavits, I recognize your own acknowledged self-effidavits are always self-serving, but the jury was entitled to discredit those self-serving affidavits as this court found in ID services. In that case, it's cited in our briefing. Third, the jury is entitled to consider. So I'm interested in this to your friend. So we could have this discussion about some adjustment, but it, you know, there are going to be self-serving affidavits, but if there are unruppated on the record, that that is a basis to grant some adjustment. And so, regardless of what a jury could do, and I don't know that I saw any evidence that rebutted that affidavit. You know, I think there's substantial additional evidence, including, for example, the statements that were directly made to Mr. Baltis. The court pro quo email, which is at Joint Appendix 57.02, as well as Mr. Thompson's affidavit, which stated that one of the assaults against Mr. Baltis was for him being called a rat. So I think all of that evidence would go to this question. With respect to administrative segregation, there was a defendant about that Mr. Baltis was given the opportunity to be transferred elsewhere, which he denied. And he pointed to Joint Appendix approximately three or four to three, 14. Nothing in those transfer offers indicate that Mr. Baltis would not be placed on administrative segregation wherever he was transferred. So I'm not sure that that helps defend and hear established that they conducted meaningful review. With respect to defendants' arguments that violation of Connecticut's regulations are not basis for a constitutional violation, I think that's not quite the argument here. Rather, and this is consistent with the court's findings in tellier, the failure to follow Connecticut regulations is evidence of a lack of a meaningful process. It's not in and of itself the constitutional violation. Thank you. Thank you very much. We'll resout decisions. I can vote. Next.

Yes, thank you. Thank you both. Our next argument is fine soon. And in the sun in the lower case number 23457. And Mr. Zeror, can you hear us? Yes, sir honor. Oh, terrific. Well, I understand that you've reserved one minute for a battle, so you have four minutes to make your case before us. And we have obviously Mr. Zeror, the benefit of the documents and materials at briefing that you submitted, so we've read that. Okay. Thank you, honor. I just like to bring out the most important thing here is that you have a, I say, let again, who filed the complaint, which I believe had more than enough grounds to allow it to go through discovery and prove the issues raised in the complaint as so ordered by Honorable Judge Sling. And again, I think one of the main things that we're talking we're discussing, filed a PIL, I apologize to my throat, is that issues raised in a basic of federal issues. That only a federal court has jurisdiction to actually adjudicate these matters. Although they intertwined with the state, I think there's a confusion here or at least there's a mask of confusion trying to take away the legitimacy of the actual complaint. And I have brought out many sections in there that the federal cases are only to be exclusively adjudicated by this court, by the federal court, not a state court. Besides that are the issues of the timing, one of the issues brought in the court is that a lot of the documents that were brought to the federal court were independently different than the state court. And we're only filed at the bankruptcy level, well after the final judgment or the appeal filed in the state court, and those different documents are notes. And the note that I'm speaking is a five, five in dollar note. So it's very severe and very significant. I'll address the differences and discrepancies throughout the notes. I'll set it in just specific cases that were almost mirror cases. And in fact, this complaint, again, at a complaint level, as far as I'm concerned, far exceed the documents that allowed those cases to proceed to continue from a complaint. And one in fact, in my petroleum made a copy of the actual complaint, the judge even allowed an amended version of their words. And this evidence, I believe, is far superior than the evidence presented in that court. The timing issue, understood as mentioned in the brief, I believe, and it's mentioned also with Judge Drain, is that what on the court, or violation of the state, one would be triggered by the other, of course, if it's wrote on the court, has no time there. And I believe that, again, as a complaint, if far exceeded that level to proceed. I believe in directly Judge Drain did actually concede to that. It wasn't as abstractly stated, what specifically he expressed. But in the same token, he refers back to Porgis, which I believe is not, not so because again, it's federal issues and federal statues that I'm trying to adjudicate. And to have a treatment for those reasons. I believe Council even disputed the case of Chevron, which again, refers back to fraud. Can you speak up? Can you speak up? I'm sorry, I'm more loudly. Thank you. I'm sorry, you run. Let me see if I can raise the volume, too. Try again. Is that better now? No. Maybe a little bit better. Okay. A little bit better, I'll speak a little bit later. As I mentioned that Council doesn't even address the Chevron case that I mentioned. And it's specifically states that the state court has no issues, has no jurisdiction to adjudicate the federal findings that I'm saying that were produced at a bankruptcy court after the closure of the state court. And in fact, these documents prove, and again, we're not dealing with the state court, but who the documents were different than what was filed. The second one, as I mentioned, is that although John the train did in one sense this regard all the facts, I believe that in the complaint, I'm not even sure the degree of all the documents that were presented were properly evaluated. I think it was very short to the point and address the purchase case that did not consider the evidence. It was very significant, and I believe it was a miscarriage of jet of jet of jet with me. I've just this to allow something like that. So, and I think that we have your agreement, you have reserved some time for a buttole and we're here from opposing the opposing side. Good morning, honours and we're Ryan Skippin from the Calabaray Marli Berkshire, so I'm behalf of the appellate JPMorgan Chase bank. Mr. Zeror's complaint is very familiar to chase the allegations he makes about forged long documents about incorrect long documents. His challenge is to the validity of the assignment of the mortgage to chase. These are issues that Mr. Zeror is then litigated within the foreclosure action. He also raised that month, it's appeal from the judgment in the foreclosure action. And I'm listening to Mr. Zeror's argument, he really didn't address the reason why his complaint is not allowed to go forward here. There were a few reasons actually, but in the bankruptcy court, they ruled that his claims are far, far raised to the Kata. And the reason the bankruptcy court ruled that, which was with which we had read, is because his allegations and the relief he seeks it overlaps with everything that took place within the foreclosure action. He seeks that the mortgage be avoided. I mean, the mortgage would have to reattach to the property of the judgment would have to be vacated for any of that to happen. The relief he seeks is complaining he lost. Rental from the property because the property was sold before closure sale, he's complaining about the eviction, all the relief he seeks goes to the foreclosure judgment. And it's clear the parties are the same, it's clear that the state court judgment was a turn down of people long before he filed this lawsuit. And therefore raised you to Kata applies. You could also take this in a different direction, which is what the district court did in deciding that refurbishment, abstention applied. If you look for fact, there's for refurbishment abstention two-ups. I clear Mr. Zoro, lost in state court and that the foreclosure judgment was a turn down of people. Am I right that if Ripper Feldman were to apply, then the dismissal would necessarily have to be without prejudice? On a jurisdictional ground, I believe that's the case, you're on. And as you pointed out, Mr. Svetta, the just dream, the bankruptcy judge, dismiss it on Mr. DeKaligrains with prejudice. Was that also right? That is correct, you're on there. So what do we do with that? We, I think the race due to Kata, dismissal should be affirmed because I think the doctrine clearly applies here. When you look at the allegations, that Mr. Zoro is making, not he tries to couch it a little bit in the bankruptcy context. These challenging cases proof of claim, he says he's challenging an alleged state violation. The proof of claim really doesn't even come and claim there were no big distributions in the bankruptcy. So the case was not even paid out after the claim within the bankruptcy context. But is it correct? So do we affirm the district court judgment, which I think is before us, I think. But on a different ground, or is it that we look through the district court decision and affirm the bankruptcy judges or courts judgment on Mr. DeKaligrains? We do. The last thing we are on here, you look through the district court and affirm bankruptcy courts judgment on the right of student Pata graphics. Any further? I don't have to court as anything else for me. We'll rest on arguments in our brief. Okay, Mr. Zoro, you've got one minute for a vote. Okay, you're on. I certainly understand what he's bringing up, but again, that's not the old game. All those complaints is a little bit, I would quote a little bit all over the place with a lot of allegations. But I think there's significant points back to federal statues that can only be attached to a federal federal jurisdiction to apply and to use. As far as the state action, we're not trying to recoup necessarily anything that happens to the state court, I don't believe we can. But based on the fact that the evidence brought to a bankruptcy court, the documents that were different, we believe that there were documents, originally brought to the bankruptcy court, which we believe is strictly a jurisdiction. I'll think that a federal court can adjudicate and again, it is complaint. And as mentioned, that and throughout the brief that in most cases were a prolett again, it should be raised to the strongest arguments under. I think that's a little bit of a little bit of a little bit of a little bit of a little place, but I still think it remains the facts are significant. It is a complaint, I believe if discovery is to complaint is allowed to proceed. I can more than provely make my case and allow to proceed. Thank you very much. We'll reserve the decision which just means Mr. Zoror that you'll have the decision from us at some point after today. That concludes today's argument calendar and I'll ask the court and deputy to please adjourn.

to hear our argument in case 23, 63, 44, United States, Beatriceco. Good morning. We need some oil. Good morning, your honors. Andrew Geering from the Federal Public Defender Office for the District of Connecticut on behalf of Defendant Appellan John Trasaka. I would like to spend my time this morning, principally, on the sentence, the District Court imposed on Mr. Trasaka, and why when the record is considered an instantality, a 96-month sentence was substantively unreasonable. The sentencing transcript leaves the reasonable reader and the public with the impression that Mr. Trasaka received an outside sentence because he elected to go to trial and because he could not pay restitution. And then his code defendants received lenient sentences because they pled guilty and accepted responsibility. There's no dispute about the guidelines calculation in this case. Mr. Trasaka's guidelines were 33 to 44, 41 months. The sentence imposes more than twice the top of the guidelines and very nearly three times the bottom of the guidelines. I cannot recall the case in our district where the sentence was more the top of the, more than twice the top of the guidelines range. Upward departures are extraordinarily rare in our district, even guidelines sentences are becoming less and less common, as most defendants generally receive below guidelines sentences. According to the 2023 source book, only 22% of defendants in our district receive guidelines sentences. Last year, the district court repeatedly commented on your points failure to accept responsibility during contrast to code defendants via it. But at the same time, in the same breath, he would repeatedly say, well, I don't take that consideration when I'm sentenced to God. How will lead up the handle that? Throughout the sentencing, proceeding your honor, there were numerous remarks from the district court indicating the Mr. Trasaka was penalized for going to trial. The beginning of a sentencing, the judge emphasized that his code sentence had all played guilty, and that he had not something to do with it. That's what I just said. I mean, it's pot marked with comments about your client's failure to accept responsibility. The, it's a bunch of judge, or you just vote. That quote is attention. But he would also say, well, I don't take that. He has a right to go to trial. So on the one hand, you should have accepted responsibility on the other hand, yet the right to go to trial. How do we handle that? Well, I think you're on the Mr. Trasaka's decision to go to trial and maintain his innocence was linked to the sentence in the court with his mind to extent that there was inappropriate considering that there was no obstruction, Mr. Trasaka did not testify a trial. And at the disparity between the top of the guidelines and the sentence imposed is just cannot bear. It's too large to bear just the weight of that decision. There has to be some other reason to justify a sentence. This is the reason to stop there, in case, is there a case, actually, I was at the podium. Many, many years ago, making your argument on behalf of the government in connection with a downward variance and making the exact same argument in the response back from my future colleagues was well. In Ford cases, there is no similar. Is there a case to be put this way? We're in a Ford case. We have determined that a sentence was substantively unreasonable. As opposed to a case involving child pornography, for example, or terrorism, is there a case involving a set of facts like this where a defendant has gone the trial and been convicted. And the judge has imposed a significant upward variance that we determined was substantively unreasonable. I'm not aware of such a case here, honor. I think perhaps part of the explanation is that upward departures are exceedingly rare and that a defendant, when a defendant elects to go to trial, the judge tries to avoid the appearance of a trial tax. And in this case, we have a sentence again, three times the top of the guidelines. That's what it looks like. So there were other factors. And I'm just really asking a question that seemed to motivate the upward variance, including the fact that maybe the most salient fact, that the Ford was in connection with or arose rose in a midst of a pandemic, where services and pandemic, or COVID-19-related products were at a premium. And your client was convicted. One, I think, could get out of you of exploiting that. And why isn't that the basis by itself for a significant upward variance from this between case? It's a COVID penalty, not a trial penalty. I think you're on a, if the court had similarly treated Mr. Trasako's code of sentence for which that was also true. It was a COVID for all the funds were intended for COVID relief. Then it would be a different story. But here, when we are looking at the disparities and the sentences between the code of sentence, I think it's significant that the court only cited that as a basis for an upward departure in Mr. Trasako's case. Well, there is a slight built-in penalty, of course, even under the guidelines. But it's also true that if someone does not, even its set-in saying, except responsibility, which is what I think happened here, would that be a basis for an upward variance? It could be your honor. I think it a significant fact here is that Mr. Trasako had maintained his innocence even past the verdict. We had post trial motions, which the court did not deny until 830 p.m. the evening before the sentencing at 10 a.m. the next morning, Mr. Trasako could have reasonably expected that the court would grant those post trial motions. So I think the court was perhaps expecting a bit too much in demanding full-throwed acceptance for Mr. Trasako given his arguments as good faith arguments as to why the jury's verdict should not stand. And I think that's linked to the question of restitution to the extent the court seemed to expect Mr. Trasako to have paid up for a restitution while he was still maintaining his innocence. And of course, if he had done so, the government could have pointed out, how could he say his innocence, his paying restitution, his acknowledged, some extent, that he owes this money. And of course, restitution is the other issue in our brief as far as the basis of what the state had done or not for the courts up the departure. And it's just a very unusual case in that the district court seemed very preoccupied with restitution. Mr. Trasako, peculiar notice on the docket in December asking the parties to state what funds they had available for up-front restitution at the beginning of the sentencing procedure. Mr. Trasako, I'm just too excited for seeing your up-front kinetic, I don't recall seeing that before. I was a district court judge who never could have never did that in a city in the morning. I had never seen anything like that before. I almost see what was he thinking about why we're dealing with restitution at that point in the proceedings and requiring people to pay it. What was he doing? I'm not sure you're on it. I think maybe something that's more common in state court practice, but in federal district court, it seemed very unusual. And when considering conjunction with remarks about restitution throughout sentencing, suggest that Mr. Trasako's failure to pay up for a restitution was driving the sentencing. It's absolutely wrong. Something in the record that we're missing why is this a Muslim? William's what Williams, my, I can't speak for my call. It's my clear takeaway from this record. Williams had it out for you, Client. Is there something we're missing in the record that accounts for this hostility and you'll treat when you're Client? Does something that we're not seeing? You're on it. We were shocked throughout. And I think that's why we highlighted the remand issue because that again is another irregularity. Right, the court ordered Mr. Sako, remanded first after he was convicted. He was released a couple days later after we provided additional shirt surries. And there were no issues between the end and sentencing. But the court ordered his immediate remand, which is extraordinarily uncommon in our district for a defendant who's been at liberty and which we almost never seen fraud case. It's reason for reminding him on the spot. What was that all about? I think the court stated that since Mr. Shushasako had received a lengthy sentence, things had changed, but it wasn't clear to me from the record whether that was related to risk of flight or danger. The community does not like that. Do you even keep much preferers self-serene? So I couldn't figure this out. When I read this record, I kept saying, it must be something going on here. It's just not disclosed in the record. It would have made a lot more sense to allow Mr. Shushasako to self-serender because he was reminded immediately. He went to California for reasons that are unknown to us. It took him a while to transfer it back to a camp in the Northeast, whereas had he allowed just self-serender. I think we would have gotten the designation that we wanted. He wouldn't have been able to self-serender to camp. And he incarcerated since that remand. Yes, sir, honor. Since the date of sentencing, a little over here. So the remand, of course, means he didn't have the opportunity to say goodbye to his friends and family. No, your honor. And because the advice we give our judge must have known that. What Matt, what motivated this? We have checked it strangely, below your honor. We made the point that we advise our clients based on what we see, what is common practice. And based on that, although, of course, we tell our clients that it's up to the judge. And we don't know what they're going to do. Did the government seek remand at the following conviction? The court inquired at as to their position and the government stated that remand would be appropriate in this case and supported by those. No, did the government ask for remand before the judge Williams? No, I asked government about it. No, your honor. I don't believe so. I think the sentencing court launched into the remand issue right after imposing sentencing. And only afterwards, provided an opportunity for council to be heard. OK. On both the trial penalty question and the restitution question, call it grades this a little bit. But on both, we have expressed statements from the judge refuting that proposition, quoting on the restitution. And he says, he will not receive a greater sentence for any inability to pay restitution. So to conclude in your favor on that argument, we would have to assume what that the judge was making a false statement there, or how would you propose dealing with it? The district judge expressly disavowing the basis upon what you build your argument. We're asking a court to look at the record and to tell it to know other remarks by the judge that we have pointed out when I'd like to highlight page 19 of the sentencing transcript. The court notes, the way the Mr. Fosaco is distinguishable and not in a good way from the other code of sentence, each code offended accepted responsibility and did so relatively quickly. And as we pointed out, the sentencing and the relatively quickly part was not true for Mr. Demosa. But throughout the sets of the transfer, was that in responsible, a massive, more open-ended question? What was that in response to? An argument pointing to the code of sentence. And saying, I think that he deserved a somewhat similar sentence. Is that wrong? Is that right? We were seeking a minor role departure. And that extent, we certainly tried to distinguish Mr. Dusaco from his code of sentence. And so that statement that you read from Judge Williams was in direct response to the argument. Is that a fair characterization? I don't think so, Your Honor. It appears in the transcript before the defense made any presentation while the court was engaging with the government. The court started articulating its reasons for the sentence during the government's presentation, which seemed strange before the defense that even had an opportunity to be heard. I'm not sure it was the defense of that. But in the briefing, you made all those arguments, correct? We certainly did try to distinguish Mr. Dusaco from his code of sentence, Your Honor. And I think overall, we showed that Mr. Bernardo and Mr. Demosa were much more culpable to the extent that they were in a position of extreme public trust. They were democracy. Shoulding state represented. All right. We've heard, well, you've reserved some time for a bottle of vodka. Thank you, Ours. May I please a court reminette representing the United States? Your both got line sentence imposed by Judge Williams in this case, a concord with prior case law of the circuit was not so high that it damaged the administration of justice and was supposedly reasonable for at least seven separate reasons. First, as your Honor indicated early on, this was a theft not a money in a bank. This is a theft of COVID-19 funds at a time when those funds were needed desperately by municipalities. All the all the defendants were involved in that. So what distinguishes Mr. Archerosel from the others, including the ringleader who was a public official? That's a very good question, Your Honor. It is a good question. And so let me hear your answer. Two parts answered. We don't have to vet the questions, just answer, sister. There's two things. First of all, when you look at the way the conspiracy's worked, unlike Mr. Bernardo and Ms. Knox, this defendant drove this conspiracy. This defendant, Bernardo got twice as much money as this defendant. I don't think that's accurate, right? Yeah, one hundred, a million, two out of this. My recollection is there's three conspiracy's, Mr. Bernardo and Mr. Demasso in a scheme devised and implemented by Mr. Demasso, stole 600,000 about with the, with the compass and decimance. It was established at St. St. Mr. Bernardo only got 50,000 of that. Mr. Demasso took everything else. And so in the aggregate, Demasso, what's his name? Demasso. The Demasso is running more than one scheme. He's getting a million, too. He gets a fraction of Mr. Trascosos. Mr. Demasso under the facts started to schemes. Mr. Chasoco started this scheme. Mr. Chasoco found out about the scheme. Mr. Bernardo, Mr. Demasso, were running. The judge was entitled to look at the entire course of the conduct, rather than related conduct. He knew what Mr. Demasso had done and he knew how much money Demasso had made. And it was substantially more than this, defended. And he got a fraction of the sentence. He was also a testifying trial. We see how those walk very witness. Yeah. And so he got the benefit of a submission from the government, E.J. that described the quality and level and degree of his cooperation. Yeah, it's the public record reflexive testifying for I think it were two days of trial. But the difference between the code of sentence with the code that your source in the mighty code of 19 is that it's a mitigating factor for all of them. The two of the code of sentence got lesser sentences. It had a lot of mitigating factors and Mr. Trascosos doesn't have neither had criminal histories. Ms. Knox has suffered an abusive childhood and with six months pregnant. Mr. Bernardo was somebody who went along with Mr. Demasso when the coppist he. But the criminal history was fractured into his points. That was already on the table. That's correct, sir. Crummer history is quantitatively calculated. But a number of Mr. Trascosos conditions included in a robbery one and a salt one, I can mean a type which, in the cake of all of violence, they didn't count. And it's, for example, in my sense, Trascosos quote a bankbubber case that the judgment above, right, right, left we twice the top of the range. The, the, the, the, the, the, the, the, the the court says, second circuit says that these factors were important for the criminal history. And that's okay. And that's what Judge Williams did here. Judge Williams had a materially different defendant in Mr. Trascosos and Fungumham. They needed in Ms. Knox or Mr. Bernardo. This was a defendant who lived his life almost entirely outside the wall. This is a defendant with multiple violent convictions. This was a defendant with the last, when was the most recent conviction? For Mr. I can check in a moment, you know. The most recent conviction was in, according to the PSR your honor in 2007 for legally refusing to DNA test with score 0 points. You also had 2006 conviction for the same thing where score 0 points, he had a 2019, 99 conviction. And he was arrested on this one, this charge. He arrested him in, during the pandemic. During the pandemic, you know, I see like a one. Yes, 2020, 2020. Did the government advocate for an above-government sentence? Yes. In the Mr. Supper's case, the government, which is, I agree my colleague, the rare, and I have moved maybe 10 times. I might be clear for one, but I moved the government move for an upward apart from this case. Because the government felt that, upward, that, that provides an upward variance. That's not a departure. Thank you, everyone. Yes, an upper variance. Because in my view that Mr. Trascosos criminal history, the nature of the conspiracy, or he basically, in the government's view, intimidated Mr. Vaswar, Kowerson, into continuing along with the various iterations of the $400,000 fall. But the Vasa was involved in other scams that he, this man had nothing to do with. So the notion that he was coerced into this, is unconvinced to me. Well, the difference between those two, your honor, is that in the other scams in the U.F.I.L. and Scam and the Congress and Investment Scam, the Masha was taking a lion's share in the money. The other two individuals were facilitating it, because it helped to scheme book more legitimate. This is a horse of a different color. This is a scheme initiated by Trascosos who just took all the money, all of it. And he slid on two occasions $5,000 in a Mr. Domasa's pocket. What can you tell us based on the trial evidence of the other evidence? Why is the relationship between Mr. Chasoco and Mr. Domasa developed in that way where Mr. Chasoco was the lead and seemed to have some more greater role. The testimony of trial that Mr. Domasa related to the government's pandok. Mr. this is my recollection. I'm not quoting from the transcript. Mr. Demaso is introduced to Mr. Chasato by Mr. Banardo at a cigar club in Connecticut. Mr. Chasato immediately indicates that he can do some gambling and then that's the individual center that arrest her on. And then everything moves to that restaurant. So the relation and then Mr. Chasato. Mr. Chasato, where that Mr. Demasato is a gambler and has gambling debts or... I believe that testimony was Mr. Demaso indicated he gambled at that first meeting with Mr. Chasato. And so Mr. Chasato provided an opportunity for him to gamble additionally. And he, Mr. Demaso took that opportunity. And was there evidence that the nature of the... fun that we get from the beginning, the nature of the relationship between those two, change your development to give Mr. Chasato a more power? It was a very one-sided relationship and Mr. Demaso's accounting of it in that he would see him at the restaurant and then Mr. Chasato would hand him invoices for, and there are two parts to the Chasato conspiracy, one was LNA, which allegedly provided PPP for the schools. And then once Mr. Demaso said, we're not going to be sufficient product here, we're going to get uncovered. Then switched it to J.I.L. J.L. conspiracy, which was provided UV likely for read a facility that someone was proposed. And so Mr. Chasato was driving all of that. Mr. Chasato was giving Mr. Demaso invoices. And you said, I think, that that's different from the other schemes with which I'm less familiar. Yeah, the other schemes, the one, they were driven by Mr. Demas. Straight up. And what Mr. Demaso did there is he, he was my recollection of the testimony, is that Mr. Demaso started to fraud in West Haven with his misnops who would get a relationship with through a youth violent conspiracy by some of false invoices. Then the mayor put him in charge of all the COVID funds, which is about a million bucks from the government. And then he just really saw an opportunity because he could be the signatory for that. So then he, he and Mr. Bernardo formed a company called Conference Investments and submitted completely fraudulent invoices. Mr. Chasato. And you are okay with him getting a smile upon the risk. Public official doing that. I think the government didn't recommend a sentence as is our practice in Connecticut. What? The government file emotion is behalf. So I think the judge opposed appropriate sentence given more than from the judge at that time. And well, look. He is a cooperator. Yeah. And so you get the government sometimes, society of standard, has to make agreements with people who engage in serious misconduct. Correct. Is it anything? But the judge sentence. I'm sorry. The judge sentence, then you did the judge sentence to death. And the practicing Connecticut is that when we file emotion on behalf of the defendant, we do not recommend the sentence. It's been that way for a long time. So we do not. So the judge had no idea what you thought the sentence should be. Right? The judge, the judge knew that I thought he should take into account Mr. Domassas cooperation and testimony. And the judge, the judge was in a really good position in this case unlike many situations. The judge observed his testimony for over a day, two days, whatever. Well, I was judge who even so fixated on the fact that this defendant didn't accept responsibility. He can't mention it. I think that that goes specifically. Is he upset about that with the angry about that? I think it was an observation. And that's sort of an observation that before in U.S. cocaine, which is a fraud case that went from one twenty-one at the top to two sixteen, that in their one of the reasons was that the defendant made Cavalier comments to probation. The judge observed how this defendant acted. The judge observed the financial off a David that was turned in which was unique. It had things written on it such as, you know, I have no idea. It got only knows whether the IRS, you know. And then the defendant stated that he had no assets. Financial David reveals no assets. Yet he tries to, in his argument, to turn me in out, says I have to shut up. I have to swine down my multiple businesses that that that I have. And I think that you accept at some point, you know, what do you need to turn the public out? Well, lying down these businesses, these businesses, these report have no assets. And so I think that sort of, you know, that there are sort of currencies in the judge observing that is sort of foundation for his reaction. Nothing further on, isn't it? Thank you very much. Thank you. Your answer. My question. Your answer. I'll give you just briefly address the criminal history question. Mr. Trasako was convicted of assault one in robbery one in 2000. The assault offense occurred in June 1999. When he was 28, the robbery offense occurred in February 1998 when he was 26. The person was 49 to 50 years old at the time of this offense. It was criminal history category two for a reason. And the government asked the court for a criminal history category departure under 4A1.3. The court did not do that. The court didn't check that box. Instead, the court kept them at criminal history category two, but essentially punished him for a criminal history, which I think was also inappropriate. As to a restitution, I have a special concern to the judge's conduct to this as to indigent clients like Mr. Trasako. Most of my office's clients are clients of not paid taxes in recent years. Many have little or no bearifiable income. That's how they qualify for our services in the first place. So I worry about, unless the court takes action, this being seen as an aaryon factor in more and more cases with this court, which would create unborn to disparities. Probably the most vulnerable people in our legal system. This is what the court is with respect to the best tuition issue. Exactly, you are. So can you just address the government? I'm very sympathetic to what you're saying there. But would you address the government's argument or statement that he talked about having to wind down his company, but then also said I've gotten a assets, apparently just Williams designed to stay in the now, believe that there was some internal contradiction. Well, we know from the record evidence that trial, that Mr. Trasako had a company, that made insult products, had a warehouse, Mr. Namasa said he had been there about five times that had seen goods. So we know that there were physical materials that Mr. Trasako wanted to dispose of. We know that he paid rent for this space. Not a non-advantic financial FD. No, you're on it, but it's not uncommon when clients are cleaning his affidavits to the best of the recollection. They don't have the best available information. Well, but I mean, not many of your clients have warehouses and businesses that need winding down. It doesn't sound like the most vulnerable population. Well, you're on it. I think even small business owners were very vulnerable during this time. The sensing was in 2023 after COVID. A lot of businesses were struggling. As we said, it's sentencing. Nobody wanted to touch Mr. Trasako after this case became public. Nobody wanted to work with him or do business with him. People who had in the past. But it's a business with books and accounting and the like. And yet it reflects no assets. So it's hard to see that the judge noting that for purposes of how he thinks about the restitution is irrational or a piece of a discretion or clear error, whatever it would be. We're not saying it's not relevant. Your honor, we're just saying that it's not sufficient to justify this vast disparity with this code of vengeance. What is he trying to look at the time he was filling up just the natural form? Yes, your honor. He's going to represent by office throughout. I just want to point out briefly if I can just have the moment your honor. Mr. Trasako's code of defendant, Mr. Namasa. God knew where his extensions have finally self-surrounded in December 2023. He's due to be released in October 2025 after less than two years in prison. Probably significantly less time considering half way house or home confinement time. Lornax served 150 days. John Bernardo served a little over 250 days in prison. So the government points out at least two things and I'm going to give you an opportunity to respond to those on this rubble, although you're the past few times. That's okay. Thank you, Art. The first is that Mr. Dumaasa is significantly, definitely situated by virtue of his cooperation. That's right, your honor. We certainly present that which is a significant thing when the government submits a letter. You can talk about the Justice of injustice, really. He's a top guy and cooperating with downward or a pause and so on. There is a great value to coming in cooperating. I think you would agree with that. Credit, associated with that. The second thing is that the government mentioned various mitigating factors associated with Mr. Bernardo and Ms. Knox that were not present with respect to Mr. Trousaka. So if you would have addressed both of those. Certainly, honor. Mr. Dumaasa cooperated. He should be credited for that. You received a sentence slightly below the guidelines. We are not saying that that's an inappropriate sentence. We're just saying that Mr. Trousaka sentence was so much higher that it's an unborn to disparity. It's not just that they're similarly culpable and Mr. Dumaasa cooperated. Mr. Dumaasa was much more culpable. The government said it's sentencing response to questioning from the court that none of this would have been possible without Dumaasa. We know that because he was given special responsibility from the mayor to administer these COVID funds. He was both the city of play and an elected state official. So Trousaka, who's an outsider with no political connections, the no established position in West Haven is in a very different position. John Bernard O'Tow was a city of West Haven employee who, as somebody who had worked in public service as a city of New Haven employee for most of his career, should have known better. And he also had significant political influence. He was Mr. Dumaasa's campaign manager and was heavily involved in democratic politics in West Haven for decades. I should also note, as the government mentioned, the compass scheme, that the of the four schemes, that's the one that resulted in the largest loss amount. I believe it's about $600,000. And as part of that scheme, Bernard O'Ndemosa created a fictitious shell company. They used Bernard O'Homand rest as the address for the company. They set up something through HR so the money could go to Bernard O'Homand retirement through that scheme. Much more sophisticated than the alleged J.J. and L.L. L.H. schemes. So, it's not that there are no mitigating characteristics for these defendants. I'm sure there are. It's just that considering the aggravating factors that were present for them, particularly their public role, it's just too much of a difference to have them in and out of jail and have Mr. Trasaco expecting to be incarcerated until 2029. Thank you very much. Thank you. I'm a sort of decision.

All right, the next case is Turner versus Jordan. We'll give the courtroom a chance to clear out before we begin the next argument. We lost our audience. All righty, we will begin with Mr. Burns. We're going to have to make police court judge heard about the half of the Pellant Robert Turner. I've reserved three minutes for a buttle. The issue in this case is whether the comedy doctrine mandates abstention, in a case that only tangentially and will receive taxation that sees no declaration that any state tax law is unconstitutional, which is favorable for the plaintiff. We'll not impair or disrupt the state's ability to levitate assess or collect any tax. I'm not advocating that involves taxation in votes to comedy doctrine. Can I ask you just a quick question to kind of accept the table. Do I understand correctly from your brief, you sort of swore off any argument that you're contesting the amount of taxes owed. You say that's not our argument. It's not our argument that the validity of the homestead exception exemption in the abstract just sort of when it was active and when it wasn't active with respect to the original listing. And you've swore off any argument of concerning the government's right to foreclose in the property. Your position is like this is sort of a rifle shot argument just that they misapplied state law and did so for retaliatory reasons. Okay, I just want to make sure I've got the narrowness of your position right. And I think that's important when we look at the principles of comedy and why it's in place and why the doctrine has developed the way it has. And that's to ensure that federal courts aren't disrupting the states and their administration of taxes. I'm going to look at what we should hear at this. The release of this turn of seeks would have no impact on the state's ability to administer its tax programs. Can I ask you a question to sort of a factual thing that I'm just a little unclear on. So he, I think it's pretty clear he had the homestead exemption at the time that the first sale was set at $3,500 or whatever. And then I don't think we can take judicial notice of the fact of it being said in June, but in any case, in October, it's offered at the same amount. Is there a resetting of that amount or is it automatic that it is the exact same opening bid? Do you know what I'm saying? The exact same opening bid from March. So it's set for an opening bid in March, a minimum opening bid, no one buys it. Then it's sold for the same amount of that minimum bid in October. And I'm wondering, is it reset the minimum amount that they're offering the property for it? Or is it necessarily the same as it was in October? In other words, what I'm trying to ask, but not doing it very well, is whether it be a amount that they set in March necessarily governed what they would offer it for. They would offer it for an October. It's our position that the statutes say that there is just one opening bid. And that's the amount that was originally set when the property went on public sale. And so that was the March period. And at that point in time, it's undisputed that Mr. Turner had a valid homestead exemption on the latest tax roll. And so that amount should have included one half of the assessed value of this property. So when the so your view then is that the only relevance of this the October sale is that it was sold for that amount. Not the timing of that sale, right? Okay, I got it. Thank you. We leave the statutes use opening bid and minimum bid, but they're not interchangeable. They mean different things and that's because the statute defines what goes in an opening bid. And so the opening bid should have remained constant once it was placed for sale. And that taxed application was made. And so at that time because Mr. Turner's homestead exemption was valid, that that amount should have included the one half of the assessor. Is that require us tapped a value e. Tax law, state tax law to be able to make that determination. I mean, because let's say that the amount could change. I mean, I guess maybe it doesn't make a difference here because we're not going to wreck. I'm pleased I don't think we can recognize. I don't speak on behalf of anyone else. The fact that the homestead exemption was lifted in June of 2015 on this record because it's not in there. So maybe it doesn't make a difference. I don't believe it does your honor because those documents are not in the record, but even if it did. Whether the homestead exemption is removed or not removed. It doesn't really matter because this is the very unique factual case where the removal of the homestead exemption has nothing to do with the amount of taxes with the value of the property was. It only relates to whether Mr. Turner was entitled to the one half of the assessed value. Right, but let's say if we could recognize the fact that. That the homestead was removed. Then the question then that's when it becomes relevant as to whether the state could or whether the county could have offered it for a different amount in October. Whether the whole in other words whether the slate is wiped clean and whatever error they may have made in March doesn't matter anymore. I'm asking it because if that requires us to get into state law to be able to assess that. I wonder what your thoughts are on that and and whether that's something we should be doing. I would be a. I would have to turn on the court have to determine whether the clerk was permitted to to change the opening bid, which I think when you look at what the term opening means it wouldn't make sense that the opening bid could be changed and have it still be the opening bid. I think it implies it's the the first bid. I think if you think of a play has opening night if nobody showed up what they did the play and then the next night that's not still opening night because people come the first night was was opening night and so I think that's kind of the same way this opening bid works and so the clerk couldn't change the price. But even if the court has to to make that interpretation of a Florida statute, which which federal courts do all the time particularly in diversity jurisdiction, I don't think that in folks comedy and extension here because it still doesn't impact. In fact any taxation issue because whether Mr. Turner had the exemption or not doesn't change what he owed what a future property owner is going to owe what any other property owner might owe. It only matters as it relates to whether he should have received that one half of the assessed. Mr. Burns. You reply brief says that your opponent has loaded up his brief with a lot of facts that are under the record. Yes, sir. Okay. Let's us. So that that ought to be rest of them on demand is that the idea. Yes. What would you expect would happen if we said the case back down to the district court and all of the factual recitations and your brothers brief became became fact. Where are you then? They were back at the statutory interpretation issue. Well, no, we're back in state court, aren't we? Probably. No, I do not believe so. As our dispatches of limitations running while we're doing all this, I'm talking about first state court proceedings. A lot of times people get into the federal court and they got a state court cause of action and the state court limitations period keeps running. Is one running now? No, I'll put it this way. Are we the position where you failed to do anything in the state court and the federal court is the only place where you get you relief? Is that about where we are? Yes, sir. Okay. And that's by turn of their own doing. It is your honor, but that doesn't. The the statute of limitations issue is not something that was even has even been raised. I mean, there are a lot of times when when Republicans have a remedy and state court, they come to federal court. They left a limitation period run on state court remedies. And now they said in the federal court, we get it anything less you exercise jurisdiction here. We are not, I don't think this is a situation where just because Mr. Turner could pursue a claim and federal court that or excuse me in state court that he must. Because I think the comedy doctrine is really a two step process. Whether you do call with the facts that they laid out in their brief. You're a happy opportunity through the story to test. They laid an out the sort of a logical way. They lay out a timeline and have put documents before this court that were not before the decision. But Mr. Turner has had no opportunity to conduct his own discovery to test those. If you have not. The discovery of what they represented is true is at it. Correct. Okay. And he should be entitled to to be able to do that. Ultimately, because of this two step process, just because there may be state court remedies. It doesn't mean that this case has to go to state court. What the comedy doctrine looks at is and this kind of brought out in the discussion on the standard of review. But if comedy principles do not control, then district courts have a virtually unflagging obligation to hear the cases that are within. Then you got the the problem doctrine applies here too, does that? You're asking the federal court to interpret state law. You're on a, I'm not sure that. Is that not what you're asking? Well, there is not at this point in time. You have a state law question. You want the federal court to answer. The federal court needs to answer the question. You're on. I think we're, the case that for the district court was that Mr. Turner had a valid homestead exemption. And because of that, he was entitled to to the one half amount. And ultimately, even if the federal court has to interpret the state law, I still don't think that that invokes principles of comedy because it's not related to the tax issue. It's really related to a. Fidiment protected property interest that the Supreme Court just recently held in Tyler, we had it in county. For the statute creates this one half interest in the homestead that is in college of the property owner if there's a tax deed sale on that property. And that interest is. The tax in all, it's, it's gathered in conjunction with the sale. It's not a tax that never belonged to the county. And I think both the free and door's cases do good job of explaining why that surplus amount is separate from taxes. Thank you, Mr. Barnes. You reserved three minutes for a bottle. We'll hear next from Mr. Seagull. My name is Scott Seagull and I represent the appellies in this action. There are two important ones here that I think are dispositive and that I would briefly frame for the court. We are not asking the court to take judicial notice or to use judicial notice to reach the merits or determine the truth of any of the underlying. Issues here, including removal of the homestead exemption or the calculation. It is simply enough. And exactly the end of this court knows that those issues exist and that those issues will have to be resolved one way or the other for Mr. Turner to prevail on his claims. And it's not that those issues both impact state law issues of taxation or excuse me of assessment and collection of state taxation. There must obviously be a decision at some point that there was a valid homestead exemption on this property for to have been applied to give him the sort. Let me ask you this. Do you contest that there was a valid homestead exemption in March? We did not. The exemption was removed on June 1st and was removed a certified removed October and was not in place at the time of the tax deed sale later in October. So I mean I took your adversaries answers to my framing question earlier to be basically all he needs is that there was a valid homestead exemption in place in March when you played when you structured the opening bid. He says that it was at that point that sort of the opening bid that the sort of country to state law the opening bid was too low. Because at that point you've now you've acknowledged there's not the valid homestead exemption in place. And so you know there was a misapplication of state law that he alleges was sort of misapplied in retaliation for first amendment protected activity. So those dovetails into judge Rosenbaum's question about whether the opening bid is fluid or is fixed at one time. So I turning to that because this absolutely what my colleague described is a pure statutory interpretation. He talked about what the statute implies. The opening bid is a statutory term of art. It is a mathematical calculation. Plus why plus Z is the opening bid. So when the statute says quote any purchase person may purchase the property for the opening bid. It's not talking about an actual business taking place. It's talking about it may purchase it for the result of this mathematical calculation. And because it's a calculation it is fluid and can change as the components of the calculation can change. So for example if there was property that was unsolved for more than a year and additional taxes became due and additional taxes became delinguin then the component of the opening bid that talked about the back taxes or unpaid taxes being a part of that would be added to that. So it's possible here for example on April 1st the opening bid calculation would be one thing and after additional taxes became due at a later point the opening bid would change. What would the revocation of the homestead exemption if it occurred in June as you say would that change the opening bid? It would change the opening bid when it was certified in October which happened before the tax detail. So there's actually a case here I think that that works talks about this. It's predito of a partnership to be worn or it's a first part of first district court appeals case from 2003. I give you the citation because I didn't have the serve reply. It's 877 second, 1154 and it talks about this process in the clerk of court and that they talk about how they do not run this calculation of the opening bid until there is either request or an offer made on the property. The clerk said or the court said quote, the clerk accepts the purchase on a first come offer to purchase on a first come first serve basis. It calculates the amount of the opening bid and the court in that case, far to first district went on to specifically find and ruled that that procedure did not conflict with the state statute. The statute itself is silent as to when the calculation takes place or when it must be recalculated. I would argue and I think the clerk of court's position here is as the components of the calculation change then the amount of the calculation will change. And again the opening bid is just a calculation. It is not actually a bid that takes place. And that's exactly what the Court says. What remedies does Mr. Turner have at the state court and which remedies that he has as he given away by let the statute live. That's a good. He has full remedies for him and he all claims that he could have has raised in this case. And right tomorrow tomorrow what could he do in state court. The statute limitations ran on every claim he's made that all while he's been litigating in federal court. Judging by the run while he's been litigating here unless you count his prior federal court action. They ran before he even came to federal court the first time. No, and before he came to the federal court in this case. And his 20. That's what I mean in this case. He's been living in federal court while the statute's run. He had time that he is brought here. He could have. Okay. The first federal court. The royal we are is he's let the statute run and then the federal court is the only place he can get the relief he hopes. That that squeeze it down in that where we are. He would have those remedies. I would tell you he has no remedies anymore because even before this case was filed the statute on every claim he had. He of course could have brought a first amendment retaliation claim in the state court. When he brought his first state court action. He could have brought that claim and when he brought his first federal court action. But he can't react now. And that's not the reason we talked about statute on the actions. That is not really an expansion of the underlying court's order because any affirmation by this court. If we refer to case in any capacity the legal effect is the same. But the client for the time or before he brought them they continue to be prime time bar now. So the legal effect is the fact dough at dismissal with prejudice. Yeah, but we've been pretty stingy about this right. I mean I tend to think that Turner has the cross-bill issue exactly right. That you know to what as you would say to affirm only alternative ground would be to convert. Hey without prejudice jurisdiction on this missile to a with prejudice merits dismissal. And that is an enlargement of the judgment. What did you now tell you exactly what I think I attempted to say poorly just a moment ago that the it's not really an expansion. Because if if the statute limitations if we agree the statute, then the law that says when the statute limitations says run and all these claims are barred before this case was filed. Then the law that says when the statute limitations says run, a dismissal without prejudice is the fact dough, it dismissal with prejudice because it cannot be. So if we affirm on the the issue that the the comedy issue that the district court affirmed on it is still the fact. I just miss with prejudice because this statute tried to re-bring them the statute will have already run. And so this court doesn't need to to add the words with prejudice. Does it need to remain for the court to add the words with prejudice? The legal effect is the same. It is with prejudice whether the district court said it or not because. On the face of the complaint what we know, the statute has run. He does raise you know should the district court have been able to raise or consider total. And I just think that the totaling has no application in this case at all. He brought multiple timely lawsuits. He bought a state court action a state court of court. He brought a. All within the four year statute limitations for these claims. He clearly knew he is our injured. He clearly knew that he could bring a lawsuit to address that. If this case is any different, it is only different. And how he is chosen to formulate the claims or what specific claims he is brought. It is not a question where he didn't know he had been injured. Didn't know he could vindicate his rights. So and again, we can use judicial notice. We don't have to drill down to the merits. We don't have to accept those documents for their truth. We only need to know and understand that those issues exist and will have to be determined one way or the other. Getting back to judge Rosenbaum's question on the the clerk of court and the fluidity. The reason that is important is because this court will have to decide or not this court. It remains the district court at some point will have to decide that the clerk of court, a constitutional officer of the state of Florida, charged with collecting these taxes or conducting these tax sales, is misinterpreting a floor to statute. And is applying the Florida statute governing those tax sales wrongly. And it is enough to know that that has to be decided on the district attorney's favor and that that is a disruption that is an interference with state taxation. To say the statute is should be heard this way versus that way. And Mr. Clerk of court the way you are interpreting it is wrong. If that's the decision that needs to be heard. What if there's you know clear law clear flat a law and a sonal if to do is apply clear flat a law and it's not and there's nothing that is it all hazy about it. There is no law on this if you Google or if you West law search to use you five attorneys cases about the only cases that that deal with any of these issues. I've looked and I assume my colleague has looked as well as far as you know when does this calculation must take place. Where the what are the components for the home set exemption removal that take place here. What is clear is that the. Agree persons have remedies and state courts. Well, let me ask it to you this way. Let's say that you all sold it for $3,500 in March before the homestead was removed. Is there clear law that you couldn't have done that and under Florida law. Judge of course different facts lead to different outcomes. Yes, I agree that's why it's a hypothetical. It is a solid more than the homestead exemption would have attached that property when it was last certified and it would have had to been sold for. The amount that included one half of that I don't I do not dispute that and I think that would be clear. The interpretation of when the calculation takes place is a critical issue of interference in the state taxation system that must be decided at some point and if it's going to be decided it's Florida state courts that should be tasked with deciding whether the clerks are interpreting the state tax action statutes correctly or incorrectly. Again the statute is silent on this and. Let me ask you one other thing then on this factual record which you all could have put that into evidence I guess in the in the district court but didn't. I guess you're well I'm thinking through it right now I guess your point is that the taxes could have changed between that we're doing knowing between March and October and that would have if that had happened that would have affected. The tax is necessary to change it's whether or not the minimum the calculation of the minimum bid change and we would say the did change because. That's that's the property change so that. Okay so then that actually that's not what I'm asking that's okay I wasn't clear. On this record we don't know that the homestead was removed okay so on this record there's still a homestead that exists in October and so. Under that scenario. Is the law clear that the minimum bid would have had to have been more than thirty five hundred dollars. There's a opening bid I know. Reason in extension cases the court is not living to to the forequarters of the complaint and then that is so that the court know what the issues are in the case that have to be decided. Court's look beyond the mirror allegations to understand what the case is really about an extension cases. So do not have to address these issues with blinders on so while the forequarters of the complaint you would have to accept there was an exemption. The judicial or the prior record is at least sufficient for this for to understand that is an issue in the case and that will have to be resolved one way or the other and cannot be resolved without a determination for the whole assumption for example that the. The property appraisers judgment and actions in moving to all set exemption where somehow wrong or the tax collectors actions and governing. Stash we're sorry. Correct. It was an improper interpretation so. We look at judicial notice here we have to look at it with the limited frame point that is important for the court is not from the truth is not determined the marriage we don't have to decide right your all point is that these are going to be issues that have to be addressed. That's it. The institutional notice is not the issue issues in the case we can at least look and we don't have to dig very far in those cases at all and this course did of course look at those cases cited extensively from the complaints from the orders from looked at. It looked at detail at those prior cases the court the district court understood that this case involved those issues and because it involved those issues principles of comedy and the tax and junction act would prohibit its interference with that issue to the court was pretty clear. And I think that if there's going to be a determination that the same. That you should be read the way the other side says it should be read and not as the way as the clerk of court is going to read it that's a misinterpretation that that is a job and a role for sport a state court to address. And because doing so in federal level would be an undo interference with that taxation scheme it interferes with the collection of the taxes from the tax collector quite. Quite clearly and because adequate state law remedies existed and that's a question separate and apart from whether he timely utilize them or cheated the results or brought all the claims he should have brought timely which he. You know as way they're delayed or reformulated is case of any times because it is an interference and because there are remedies then both the tax and junction act and principles of comedy. Suggest that this court should affirm and dismiss this case. Thank you council. Mr. Burns. Do you have any remedies in state court that are not barred by the statute of limitations. Yeah, do you have any remedy in state court for what you're seeking that are not barred by statute of limitations. I can you can. This is the Florida statute of limitations on your what it want us are told is that would you tell me. Yeah, we had not made that argument before the district court not not no I'm asking you whether or not as a fraud lawyer. The rate if you seek in this case. Can you obtain it in Florida or are the statute's limitations run. Looking at the time period the four years have elapsed so if there is no. That's the. Can you go get tomorrow morning could you file suit and state court. You can. You cannot because it's run. Okay. You're a touch on one point about the factual record and what's been presented to this court. The magistrate judge and its report and recommendation on the amended complaint. That there be a factual record developed to determine whether the tax and junction act or comedy doctrine would control the case. And I believe that's the proper course that the court should have taken here on the second amended complaint because there was nothing additional to the second amended. So I'm sorry we need to we you have to limit your argument to what was raised in your initial argument and what was brought. And what was brought up by opposing counsel. Something that's responsive to that. Yes, sure. I think we're trying to say that based off of. Looking at the evidence that Apple leaves have presented. That was not in the record below. The court should have the opportunity the district court should have the opportunity to review those and determine whether. Those many. And I think we also say do you disagree then. With your friend on the other side of the aisle that. It's appropriate for us to look at those findings not for the truth of the matter asserted. But to recognize that these are issues that the district court will necessarily have to address. I disagree that that's why they were put before the court. Well, God, those of why they were put before the court. Do you disagree that they can be used by the court for the sole purpose of assessing the issues that the district court will have to evaluate if we send this back. Thank you. The very specific relief that Mr. Turner seeking it's not a tax issue and so it's not. It's really it's. It's a. And it's a process that's done in conjunction with. But it's it's not related to any tax here and so because he's not actually challenging the homestead exemption for tax purposes. It's not going to. Let me ask you one other thing. The March offering where there was no sale was there an injury to your client for purposes of the fifth amendment. There there are no there had not been a taking it that so the injury doesn't occur until the October sale right. When the I'm taking a curse yes, sure. Okay, so what give us your best argument for what we should rely on. To ascertain that the offering amount. Couldn't have changed between. March and October. One ninety seven point five or two defines opening bid and then in later in one ninety seven five or two. They use a different minimum bid and when you look at that statute. Because specifically to find and says a third step. When it's for sale and then my colleague talked about. The decision tax is later after the opening bid. One ninety seven point five or two then refers says that will be added to the minimum bid. And so there's a difference between opening bid and minimum bid. And the minimum bid has these were called omitted taxes right the tax collectors not actually allowed to extend taxes once it's been listed on. And so when you look at one ninety seven point five or two. And then you can see it simply doesn't change it remains opening bid. Now there's things that can be added to the minimum bid, which is what somebody must pay to buy it. What the initial offering is that opening bid. All right, thank you very much Mr. Burns. Thank you both.

" Good morning, welcome to the 11th Circuit. I think you're all familiar with our timing system, but(...TRUNCATED)

" This is the tell the arena. Good morning, you honors. May please the court. Arena Croft Chinkha re(...TRUNCATED)

" is severing the New York City Department of Education. May it please the court, morning and mornin(...TRUNCATED)