whenever you're ready right think go ahead mr dickey where you had left the thank your honor and may please the court gilbert dickie on behalf of appellant christopher pang this case involves the disclosure of deeply personal information a prisoner say the status for no reason this court and the supreme court have recognized that that information is protected from disclosure by the constitutional right to privacy but the district court dismissed mr paine's complaint before respons to district court concluded that neither this court nor the supreme court have recognized any right to privacy in medical records that decision is wrong and should be reversed as an initial matter the district court applied the wrong standard the informational privacy didn't we understand we don't understand that so that way we read not so the court assumed that there was a constitutional right to privacy and information it explicitly said we assume that there is a constitutional right to privacy and information it has this supreme court ever recognized the constitutional right to informational privacy we read way want to recognize the constitutional right to privacy and why under supreme court because the court had assumed that there is a constitutional right to privacy that protect that information and assume without deciding the existence of that ride that that seems to be yes maybe not as direct as you could say but are i'm sorry not to say that there was some language in previous opinions that discussed this right but that the court was not going to get into whether the right existed whether as created by those decisions or from any different source and so we want the core as i assume that there is a right it doesn't need to address whether the right exists whether that be because way when next and or just because it's part of the tradition of privacy in the country but counsel so well why shouldn't we along that same line read almost all of these cases that way so you know you cited a number of cases us but in each i think maybe you can give me a counterexample but in each of those cases they ultimately reject the privacy claim now sometimes they do it by the  step right sort of think about you know thoughts d a s to step framework for qualified immunity we've got a two step framework here is there arrives and is the government interest sufficient to overcome the right and it seems like quite a few of the cases that you rely on like watson and others sort of effectively decide this at step two with very little and almost no discussion of step one which you know makes sense that's exists or what the scope of the right might be your honor i think that approach would be would be impossible to reconcile with what the court did in waltz which i think it's miss court's clearest but the right to privacy protects personal information and won't the court said personal private information in which an individual has a right to privacy is protected by in which a person has an expectation of confidentiality is protected by the right to privacy there were four pieces of information at issue in waltz the court addressed whether there was a reasonable expectation of so so except except that i know that's the right that's the right case so when i look at walz that's the one case that is sort of difficult to square with all the rest of us help me understand where it says there's a reasonable expectation of privacy in which looks an awful lot like the very same language we use in the th amendment contacts why wouldn't we apply the principles of like hudson to say whatever expectations might be outside of a prison your it's true the expectation of informational privacy might be different but prisoner three kinder constitutional rights to the extent that they are consistent with their status of prisoners i point out that this court and taylor noted without objection right it it like nasa is i think best read to assume the existence of such a right right i think the overarching principle your honor is that individuals retain their constitutional rights to be there consistent with their status as prisoners here some right to privacy an affirmation it's consistent with their status as prisoners of course there could be a punitive a pain a logical interest that could be advanced to explain why that right does not have the same weight and prison and that's the approach many courts have taken but here we haven't even gotten to back out of it why they're not there with an adequate pain a logical interest in that case but then i'll let circumstances or some justification overcome that right in hudson the supreme court has even if you might have some subjective expectation in your jail cell like we've failed to recognise that is a reasonable expectation of privacy the step one inquiry and so why would we do the same thing here and say for an inmate who necessarily you know receives medications every day from various guards as they bring them by who is housed in that type of a set up facility where that information is widely known at least by the guards and medical personnel that it's simply not a reasonable expectation of privacy under the wall test in the same way it will have to get to step two it's a step one your honor i think the answer there is where hudson might say you know there's no adequate interest here the courts have applied a different approach to th amendment privacy rights those rights are retained to be extent they are consistent and well but that's not the only case that you've got doesn't do that right wall which is your best k uses the very language that hudson uses right this is a reasonable expectation of privacy that the thing language i mean literally the same language that hudson interpret to not be a reasonable expectation of privacy in your prison cell it is similar language your honor but i think the important thing is that different constitutional protections translate different way to the prison context and so while even even if similar language is used there might be less an expectation that you would have th amendment rights in the prison cell that has not been in the approach this court or other courts have used to due process rights for a prisoner i literally can see that wall might be wrong but like that that's the language right that is the language of waltz but even if the test for what is within the realm of privacy protected by due process relies on similar language we think that the standard should  be the relevant and creates at the level of the constitutional protection and whether it can be reconciled with the prisoner status here they've argued that there is no protection that would allow every prisoner  every prisoner's medical condition to be announced over the intercom for example let me let me follow up on that it i don't know that that is correct is mean what it may mean is that there is no you know procedural due process constitutional right against that type of conduct it does mean that there might not be other remedies available you know under state law under defamation under all sorts of different issues what we're talking about is not the exclusive remedy it's whether the constitutional right to procedural due process applause here so number one if you could yes but let me let me shift gears because it's probably more of a statement than a question but but  i want to ask about a different issue that seems to me different here than the other cases if i'm reading all the other cases be they supreme court cases or be there for circuit cases the place where the plaintiff is claiming the right is in being forced to disclose information to the government or in some way like that and they  even trace back if you look at wayland's footnote twenty five to the brandeis is famous you know a right to be left alone here your client yeah isn't complaining about that your client appears to have given us the information or maybe it was required but nevertheless we're not talking about the forced to give it up we're talking about rd party disclosure and while i realize that may be wrongful and they give rise to other claims was the fact that here we're talking we're not talking about forcing the plaintiff to give up personal information the critical issue in saying whether there's a right here your honor i agree that that's a critical issue and i think it actually cuts in favor of mr paine and in the cases where the courts have performed the balancing they found it very important that there were protections against public disclosure and there have been a handful of cases where the information actually was disclosed and the plaintiffs are much more likely to prevail in those cases i'd point the court to would be why a case out of the  circuit i believe a district court in wisconsin there was an inadvertent disclosure of the status of a prisoner by a prison guard the court found that that violated their prisoners right to privacy and information the th circuit affirmed that decision in an unpublished opinion also in dhobi city of new york a case was dismissed for being outside where information was disclosed inadvertently about hiv status was dismissed for the absence of a right to privacy the  circuit as we argued this court should hear held that that violated a former employees right to privacy and reminded to the district court to balance any compelling interest that might have been and that disclosure so we argue that would actually cut in our favor don't think the court needs to address that that was never raised until the response brief in this case and it's not the kind of clearly correct argument or argument necessary to avoid and justice that this court would ordinarily address the way to answering a constitutional question no we can't and constitutional avoidance is one of our things we look at yes i understand your honor we think even if the court does reach that question that it should remand to the district court because mr pa filled out a procedure a form for a pro se compliant he checked the box for damages and filled in the amount of damages he saw this is exactly like wilcox where this court held that in on differentiated claim for damages is enough to include a claim for nominal damages and that a point a prisoner can seek nominal that midges for the violation of a constitutional right so we don't think that argument gets very far and it is the kind of argument this court should avoid i just point out there is a circuit split over whether  however i think the court wisely brought up at the beginning that that interest has been defined by the supreme court and dicta it's the appellate he's positioned in walen nixon and then eventually in that the court has avoided finding  and so there's no supreme court decision saying that as you've just said why doesn't our president stand well i think the court brought up earlier that walls would probably be the case that's most on point for that issue and privacy interest that's described there is derived from whalen however when they discuss the scope of that interest they use a th amendment standard that is not consistent with how the supreme court has defined what could due process right to informational privacy so as an initial matter i believe that the walls court incorrectly applied for circuit standard to test whether the right to informational priva was violated if you're comparing it to the supreme court precedent on the same issue in jest quite a while has a question it i mean you know that may be true i mean it may look at the problem a little differently and but but  either say it was all derivative of wayland which is now in question which is up you know you can do but that's a pretty you know that that's a pretty indirect way is different from the way the th circuit has applied informational privacy and or it doesn't meet our own test i think the answer to that question is is that all of the cases that were cited by the appellant with regard to informational privacy as the court previously pointed out are directed towards in joining the government or some government act or from gathering information from individuals contrary or in violation of what their expectation of privacy is so to distinguish this case from those cases what the plaintiff has and the appellant has asserted here is that he has a cause of action for damages for the violation of a due process informational privacy rights none of the cases that the plaintiff has cited have actually found that such a cause of action exists and so going back to the underlying opinion of the district court the court was correct in saying that that cause of action does not exist in the th circuit whether the four circuit cases can be reconciled with i think the distinction that i just drew is how to russia i don't understand your you is not a critique but is that the four circuit is recognized that you have an informational privacy right to not disclose it to the government but that right does not exist for the to prevent the government from disclosing whatever private information they have i think that the interest that is in play in the four circuit cases is the one that derives from wayland but it's not a right that's recognized in the supreme court or even in the four circuit as one that creates a private cause of action for  damages for a violation of that interest and so i think that if we're going to look at the precedent as a guiding here this really raises the a novel question as to whether an individual who's due process are supposed to  process interest in informational privacy is violated then has a claim for damages and the for circuit has not found that such a claim exists it is our position that finding that such a claim exist disclosure and the background there of course is that the there's a personal injury claim where the plaintiff wanted to determine if the red cross had properly  properly screened a donor's hiv status before allowing that to enter the blood supply which in turn allegedly cause injuries to the plaintiffs to see that the court there in determining whether such disclosure would violate the constitution immediately went to considering whether the protections in place by the prospective court order would avoid a disclosure that could violate that right again this is the same type then here there was an actual disclosure so if there were no protections at all there was an actual disclosure and they just were in watson same to you know and over backwards to make sure they were protections from such disclosure yes your honor i it's unavoidable to recognize that in this entire stream of cases from the supreme court to the four circuits that there's a recognized interest at stake the question is whether that interest is protected by the due process clause and wants in the court did not go as far to say that a individual's right to informational privacy would be  violated or that the th amendment would be violated by that disclosure so for the pacific issue before the court today as to whether this individual has a due process claim under one thousand nine hundred and three for the disclosure watson does not state that he does i think all these cases can be reconciled under the under the prevailing principle that constitutional avoidance has been the preference of the supreme court since one thousand nine hundred and seventy seven until nasa came out they've been criticized for that and concurrences by the supreme court in that it doesn't necessarily provide guidance to the lower courts or to the public at large with regard to where their rights are drawn but at the same time that is the preference of the supreme court and i think in this case if you look at the prison litigation reform act it provides another basis for this court to consider whether this cause of action was cognizable at the time it was filed without reaching the constitutional issue which has been routinely avoided for nearly forty five years and what about the magnet the district court didn't consider that argument and since the district court did not consider that in the st interest which is correct but the cases that the appellant cited for whether the appellate court should take up issues that were not passed down below they reflect a preference for  fairness that the other party be given notice for what issues will be brought up on appeal to develop a factual record so that they are not prejudiced by a late issue raised on appeal this is a different type of case because it was screen before there was even responsive pleadings there was no factual development and so the fact that the lower court did not raise this issue i don't think prejudice is the appellant at all in this case it is survives p l r a challenge for emotional or mental distress why is that wrong i would say that's a good argument honestly but the problem with that argument is that i think it's based on the misreading of the supreme court's guidance as to which claims may merit a nominal damage award absent an actual injury kerry is the seminal case on that point where the supreme court found that for absolute rights that are violated the plaintiffs can still recover nominal damages absent injury or an actual injury absolute rights are not clearly defined in that case although the the right that was implicated was the right to procedural due process and i think a fair reading of of kerry and progeny is that for rights that don't require some balancing of the state's interest versus the individual's right then you have nominal damages now for in appellants favor this court has not found that that is actually the standard fare for circuit found that they removed the  qualification that it must be a due process right which is what was stated and carry and it changed it to just constitutional rights in general so under th circuit precedent yes kerry has been modified the supreme court has has stated that on one level it's absolute rights which were defined in that case as procedural due process before circuit has found that in beijing's of th amendment right there can be a finding of nominal damages so i would have to concede that the precedent of the four circuit would allow for a recovery of nominal damages at least to the extent that nor what is applicable in this case ok that the four circuit has found that kerry is more expansive than is literally written so if the argument had to be modified in light of that i think that the issues to be remanded to the district court would be whether the plaintiff's rights were violated in a manner that could rise to a claim of nominal damages i think the appeal or a is written clearly prevent plaintiff from recovering any compensatory damages so taking those two issues together i think that the only room mandible claim at this point would be whether the plaintiffs de minimus violation of his substantive due process rights if one exists to informational privacy and whether that right gives rise to a claim of nominal damages so  whatever ride exists is limited to the sort of fundamental issues like marriage procreation you know abortion and those type issues and then the case after that is the granville's women's clinic you know which has medical information about abortion procedures do you believe that those cases yet appropriate think they they can be squared with wall the the edward case i think accurately describe which areas of privacy have been found to be protected explicitly by this court on the plane to point out that condon was overturned by the supreme court i think that it's put worth pointing out that condiment overturned on different grounds relating to the commerce cause and it doesn't actually affect supreme court and stated that it does not want to take a more expansive view of authority to discover new fundamental rights embedded in the due process because i think that is a a wise way of looking at the the issue of substantive due process which is that until there is actually a right recognized by the supreme court or explicitly by the th circuit that there's no need to expand the concept of substantive due process into areas that while may be preferable and valued by society are not necessarily contained in the due process clause squaring that with walls and greenville i think of the fact that the court did not actually find that the due process clause protects the interest informational privacy is consistent with that preference not to create a substantive due process right in informational privacy but the court you still got to square that with this statement and walt's d financial information like that requested is protected by our right to privacy right in the financial information in walls is broader than the description given in edwards right and i think we can i agree with you that watson may assume that question but i don't see how you say walls assumes the question when it says i enjoy information is protected by a right to privacy that that seems to be a pretty square holding of of our co which which means could have been overturned by edwards which means it must mean something more than what edwards  to the extent that the court has recognized that there is an interest that is protected i think that your point is correct that the walls does recognize that that interest is protected however supreme court and what are the four circuit walls simply did not find that the due process clause creates a protection of that right and it did not find that an individual has a claim for damages for a violation of that right so i agree that edward is not the final answer on the question and cases like wall address the interest that may be arguably contained in the due process clause but while it doesn't actually go as far to say that it is protected by the due process he can you can you give your view own the discussion i have with your colleague about hudson so assume that i just disagree with your reading of walls and i take walls to say what walls actually says why would i not apply the sort of principle of hudson to say that the you know reasonable expectations of privacy in confiden are different in a prison contacts than they do than they are outside of a prison context and this is the step one inquiry not the step to government interest inquiry but in defining the reasonable this of the expectation hudson tells us is different in a prison why would we say the same thing applying walls as it is is to this same expectation of informational privacy i think that in the in the prison context the rights of the individuals are diminished and that the right to expectation of privacy is also diminished so i would agree that if you were going to find that there is the due process rights informational privacy that it it would be different in the context of a prison litigation simply because the circumstances are different and it's not necessarily a complete overlay with th amendment protections but it is it is consistent with the idea that prisons are dynamic where the provision of medicine is going to be done in a more public setting simply by the layout of the facility and the number of people there and the number of providers i think having a hardline rule that any disclosure of protected medical information information that would be protected by hipaa for example is actionable if disclosed in the print prison setting would be unwise and created a lose of litigation and this goes back to the argument of the p r a which i won't belabor but i think it's the p l r a reflexive congress's intent to limit the scope of claims that can arise out of the prison setting simply because the likelihood of frivolous or really de minimus violations that occur just naturally in the course of the prison setting are not the type of rights that need to be protected the same way they do for the public all right to judge richardson or judge clark obama have any further questions now all right then mr clarke you can wind up quickly ok well then the the final point i would like to make is that our position is that the supreme court has never found that such a right exists it does not need to find that this court does not need to find that the right exists in this case and if the court does feel inclined to at least recognize that the interest in informational privacy is protected by the due process clause it has the opportunity to look at the prison litigation reform act the intent of congress and the fact that there are other statutory provisions to protect individuals interest and privacy with regard to medical information and find that in this case the lower court properly dismissed this claim thank you your honor a few things i'd like to start just by noting the edwards argument we agree that reading edwards as an exclusive list cannot be reconciled with wallace where this court held that financial information is protected this court has also held sense edwards that different that items not included in that list were protected edwards was not a case about about the right to privacy and information it was about a general right to privacy and of course this court just a few years ago held that a prisoner has a right to privacy and medical decision making the court should similarly conclude the prisoner retains a right to privacy and medical and from ation here i'd like to also t said a couple of times right to privacy in medical information which is a very broad set of information can you talk a little bit about why you use that broader level of generality i mean you could imagine a right to privacy in all medical information you could imagine a right to privacy in communicable diseases you could imagine a right to privacy in h i v a right to privacy in other specific use you choose this sort of very broad framing as a level of generality what we through why you do that and why you think that the right way of of that you aiding the right of informational yes your honor i think courts have recognized that medical information generally is a private matter that can be protected that being said the standard i think medical information is a helpful category that captures an area where there is often a reasonable expectation of confidentiality as wallace noted is what's protected but of course different medical information might be treated differently there might be some information that receives no protection for exam well if you have a cold and the signs of that cold are visible that might not be information that's protected we don't think this court necessarily needs to draw a clear line on whether all medical information is and or what's out here because it's clearly information that is entitled to very heightened protection there's it's very private information it's a disease that cannot be cured still and why should we think about it differently like th example of communicable diseases right so you know we're in a time where covert is on everybody's mind that's why we're doing this remotely why don't we think that communicable diseases particularly in a prison contacts are the types of diseases that one has an expectation of privacy and i think i am not sure that i see that maybe outside of a prison wall although we could have that debate too but why inside of a prison do we think communicable diseases or something you have a reasonable expectation of privacy and so if you get the flu and they so long you know the prison officials immediately move  to the prison law or hospital infirmary right like that's revealing that you've you've got the flu and yet we have course you know want people to do that and that's the sort of thing that happens all the time could be substantially different there could certainly be compelling to entrust and but the head and tells us we don't just look at it the nd step we look at it in the st of whether it's a reasonable expectation and in doing so we take into account sudden pieces of the information that you might otherwise think are in the compelling interest piece you know it can be factored in that st step h i b we think would clearly be protected but the status might for example be different for kobe where there is not the same stigma and there's not the same assumptions about how people contract to that to say but here because it's within the core we don't think the court needs to draw a clear line we think that right is clearly within the core of the right to privacy where you have a disease the you may think that and maybe you're right maybe not but you know how we decide things affects not your just your case but other cases  it seems to me you know how we characterize the right whatever you say it is is important and you're you know if you're if you're claiming a right to privacy about medical information concerning h ave we can assess that if you're claiming a broader right we can assess that because you know we got   and we can be broader narrow but you know your case will be gone and we have others and how we decided affects the yeah are you going to insist that the right you're talking about is to privacy  medical information is that is that your position and one us to decide it on that basis no your honor we do not take the position that all medical information and it's entitled to protection we use that as a shorthand for a category of information but of course you have to look at each piece of information and eventually if that's not your category of information what is it mr payne thanks to the revelation of hiv status violated his right to privacy and yeah yeah diagnosis yeah yes we mentioned cases about medical information because that is one area but we are not asking the court to recognize that all medical information necessarily receives protection the important thing gets medical information it's an area where there is a lot of protected information and this is very sensitive medical information that it's entitled to protection that's the point we were trying to  all right then thank you for your argument mr dickie thank you and at this point as you all know if we were in richmond we would step down from the bench and greet counsel consider yourselves gracious greeted on behalf of the th circuit court of appeals and mr dickey the court understands that you are court appointed we appreciate your representation of mr payne we could not do this