may have please the court the relevant issue in this case is whether the evidence is sufficient for a jury to find that mr rowland's committed perjury or recklessly was recklessly  indifferent to the truth when he swore to his declaration claiming that mr karami had a connection to the nine eleven attacks the evidence is that mr rowlands swore under penalty of perjury to the facts of the f b i s investigation into crime yet he knew nothing about that investigation mr rowlands did not read any investigative reports about the investigation into he did not talk to anyone involved in the investigation into karami and he did not have knowledge of how the information was gathered for his declaration yet he stated in a sworn statement under penalty of perjury that he was privy to the details of that investigation he described the factual status of the investigation and he falsely claimed that mr resided at the same apartment building as a nine eleven hijacker and that he attended the same flight training school as a nine eleven hijackers both of those claims were false and the f b i knew they were false two months prior to mr rawlins his declaration because they had written extensive memos reported to the counterterrorism unit available on the f b i s files to mr rowland stating that connection was false and disprove viewed in the light most favorable to mr karami on this summary judgment review a jury could certainly find that mr rowland's knowingly made a false statement about his knowledge or was reckless because he knew nothing about the status of the investigation yes he swore to its status given that this court should remain in this case for a trial on the qualified immunity defense on it your position sued the most senior officials in the government for that decision to adopt that policy they sued the attorney general the director of the f b i and the director of the ins and they said we're challenging your policy judgment that restrictive conditions for these particular aliens are necessary for security reasons and that's why the supreme court said bivins is not the place to challenge policy it's the executive branch has discretion if the legislature wants to change of policy they'll change of policy this case is very different we are not challenging the hold until clear policy that the i yes held aliens in the f b i s request we are challenging an individual government actor who violated mr karami as procedural due process rights by saying i swear that these are the facts when he didn't know the facts at all and so this is not a case where the plaintiff like the spring court said and ziggler we need to get into discovery on why did the attorney general adopt the policy this way or that way why did he adopt this level of restriction on these inmates none of that occurred and in the discovery in this case because all of that was irrelevant the discovery in this case didn't get into high level policy judgments it got into this issue mr rowlands what did you know about the declaration when you signed it i didn't know any of the facts i just relied on other people and then we went and deposed the other people the people who actually talked to  people who actually read the memos who said we were solve this issue two months ago i was surprised he was still in custody so what mr rowland's did wrong here as opposed to this ziggler case is we are holding him accountable for his people the warrant the people who are running the jail they treated those people differently based on their level because we're not supposed to hold supervisors responsible for subordinates underbids nobody is seeking to hold mr rowland's accountable for anything but what he individually did and that's the purpose of bidders bivins is focused on that individual constitutional overreach by a government actor not challenging a policy so in this case we're not challenging a policy we're challenging an individual action plus there are not the there is no alternative remedy here and there are no special factors that mean this court should pause and not adopt a business remedy first of all does nothing for mr karami to provide any compensation for him as the seventh circuit held an angle you can in a case involving a brady violation a v s can't unring the bell it can't provide any compensation for the time unlawfully spent in jail mr karami spent time in jail because mr rowland's falsely stated the f b i had an interest in it was he definitely status application ending and in less the f b i said this guy's a security threat he's out and that's why this is a procedural due process claim as opposed to just unlawful detention right it is mr ro affidavit tainted the immigration proceeding it tainted the parole decision because it was false and that's why this is distinct from a situation where just did all the times says that he didn't go back and check with the agency that  provided that information not exactly right or false in the sense that he falsely stated what his knowledge was he stated in paragraph three that he's personally involved in the investigation and as such he's privy to the details of the investigation and then he says in paragraph fourteen of his declaration the f b i investigation indicates and then he made the false statement about mr graham and he declared that all under penalty of perjury so mr rowlands is saying to the court as the lawyers prepare this declaration admitted in their depositions i know these things and it is not our claim that mr rollins has to go out and do the investigation himself he can acquire personal knowledge by talking to any of the agents he could acquire personal knowledge by reading any documents but the position taken by the department of justice here is mr rowland's doesn't need to know anything about mr karami to sign this declaration it's ok for him to sign it because he is sufficiently senior that anybody reading it would know and that's a fact question for a jury to analyze when they hear him testify and assess his credibility he was trying to tell the court you can count authoritative i'm the head of the counterterrorism division and i know the details of the f b i investigation that's what he wrote in his declaration so it's not a failing on his part to do the investigation it's a failing on his part not to be truthful about what he knew and the line of cases that's discussed in the briefs for example us of events fresca us v davis those are instances where supervisory officers are saying here's what i know and here's what i don't know i know certain things because i was involved in the investigation and other things i relied on my fellow agents mr rowley didn't say that just like the officer in davis he said i know these things and sure i don't think it's a reasonable inference that people would think mr rowland's did every interview but the reasonable inferences that he knew something he talked to somebody when we deposed mr lang one of the f b i attorneys in the case he testified that when you have a national security case and headquarters is certifying a declaration what that what the person who certifies that declaration does is they read the file they talk to people involved the investigation that would be the normal course for a supervisor to inform themselves official otherwise the declaration the penalty of perjury it doesn't really mean anything he's not swearing to any knowledge and if mr owens had been candid in this declaration and honest and said i don't actually know anything about the karami investigation but based on the declaration handed to me this is the information well that wouldn't have been worth any from an eviden the confusion which was resolved very quickly by september eighteenth two thousand and one there was a nine eleven terrorist named walid mohamed al shehri he was one of the nine eleven hijackers early on in september of two thousand and one there was an identification of somebody named walid mad all share and that person went to embry riddle a flight training school in florida where mr karami was an instructor and they lived in an apartment building near so by september that's the connection and so by september eighteenth it was public now it was in the b b c which we've put in the record it was in a b b c news article embry riddle put out a press release we're so relieved that while lead aachen at all harry wasn't involved from the watch list take him off the list recommend his release despite that he is kept in custody for a sustained period of time because mr rowland submitted that declaration let's let's you so the twice you know obviously that's an issue here causation if i recall correctly was a director pretty men who testified didn't matter what was in the declaration as long as he didn't have a clearance  said we need this declaration right now they're trying to say it's a perfectly as they said they needed to keep him in custody because those who who relied on that i think a i think the district judge relied on it because  sorry the immigration judge your honor it was never entered in the record written well it was presented to the judge at the november fourteenth hearing as it was concluded correct as it was concluding in the context of that was mr fire take the immigration attorney said this proceeding is improperly closed he is being held for no basis and this is dragging on eat his adjustment of status application which would have freed him should be resolved and mr fitter the ins attorney says well i have a declaration i have a declaration from the f b i that says he is a security interest so the context in which he used it the context in which he presents it is trying to keep him in custody well but there are let's look more closely at that context right he's nothing's y and by the time the next hearing rolls around he's released right now so it's a month later  the point i'd like to make additional i mean you're up your honor is that had roland's instead of rubber stamping that declaration had he said give me the file give me the person on the line in chicago let me know what's going on in the investigation he would have learned what they think they learned in december so somebody like what was his so that sounds like you're arguing the point that the f b i had a constitutional duty to conclude this investigation sooner no your honor that duty that mr rawlins had was to be truthful in his declaration and our position is if he has so let me let me just ask you to consider this more prosaic hypothetical tur the defendant is arrested on a relatively minor criminal charge is being held the police officer whispers to the prosecutor we think this guy's a gang member and he's a suspect in a murder investigation so we want you to oppose bond but you can't tell what i just told you to the judge and the prosecutor goes in and opposes bond the false let's say deliberately false information is right it's outside that context of those it gives him an affidavit to prosecutor tucks it into his pocket if it's if it's not presented to the court at all which this declaration was that may be a different situation but this was presented this process was tainted by that declaration and the only other the point i was additional when i was making is if mr rowlands had not signed it before he signed this declaration ask himself what do i know i need to know something if i'm going to swear to this under personal knowledge the causal effect of that would have been a no interest letter it would have been i would have learned something i would have learned what they did when anybody looked at the file what happened in december of two thousand and one is somebody in chicago f b i said i'll look at the file and what she did is she read the memos from september of two thousand and one and sent the same exact memo on december in december of two thousand and one is that you congo had a ready report and so the causal effect of basis to overcome qualified immunity in a complaint to say that there was a knowing false what the reason we overcame qualified immunity is because the f b i it mid in a letter to the immigration court in december of two thousand and one we had this information in september of two thousand and one this declaration was false so we had the benefit of that disclosure and then were able to find it so this isn't a free license to get into the investigative decisions of the f b i they want to rely on other agents if they want to make those judgments they're free to do so but when somebody signs their name on the line that says under penalty of perjury it has to mean something that they know what they say they know thank you r fact not used in the immigration proceedings the district the immigration judge lectures diction to grant bond at that point and mr perelman made it very clear that the declaration would simply have told him something he already knew which was that there was an investigative interest so you know as i like to actually start with the advice a case it's very closely on point to this case and the supreme court made absolutely clear look first to see if it's a new context that would be a new context because the court told us in a bus in that it's a new context and less the case is very similar to a case of the supreme court has already decided so it has to look government's position that that will need a fresh look and it will depend because a bus he was so careful about the specific claims raised and the specific factual circumstances that it will require an actual look at the specific so that's pretty much in a vacuum pretty much all that i can say at this point and a minimum that i think the court made it very clear that there's always going to be a new context and let me ask you to consider the broader context which is if the buildings remedies are to be confined in essence to the facts of carlson billons itself in davis if the president can use the pardon power to excuse government actors from criminal liability for violations of constitutional rights congress rather than to dish out brunch to create damages and it is beyond that i think that the in response to that it's again going to depend on the facts but in this particular where we have to rely on congress to protect citizens from violations of their constitutional rights in the bassy the supreme court held that that is a job for congress and  court held it very clearly held that there is not going to be a bevan's remedy unless congress creates one so it's not that the united states government is saying that people shouldn't have constitutional rights i get a bill to vindicate   dramatic effect as these affidavits are sent out to immigration courts and proceedings around the country so you know we've read you bruce i'd like to  my concern though is about how the arguments you are making fit in with the government's interests in other contexts where it's prosecuting people for perjury or for making false statements under section one zero zero one in federal investigations we recently had a case for example in which we affirmed convictions for false statements in an s f eighty six background check for and i'm wondering given the arguments you're making in this case how might this play out in a case where somebody signs an s f eighty six that contains incorrect information about his background leaves things out and his explanation is i signed without bothering to check the facts or i forgot or i relied on others you seem to be saying that as a matter of law that can't be perjury you know that's that's doesn't follow in the slightest explain the difference to me right so it's very important in this context to understand the context in which the declarations was set up if you look in your record at supplemental appendix a eighty seven what happened was there was a big investigation into the bombings and the terrorist attacks that wasn't a separate death investigation and to karami the way that the as a policy matter the way that the department of justice decided to implement the hold until clear policy was that they would send out to all of the f b i offices that's the one hundred eighty seven and each office each detaining would be assigned to be the specific charge of an f b i office who was charged with going getting all the most information all the most recent information doing a report that was  declaration that summarizes what's in the file which represents the f b i s most recent thinking and somebody and not mr rowlands determined that the way that these things would move forward would understand look so mistakes were made i get that right and they win but i'm trying to understand how any of that differentiates the person who says i forgot or i relied on information from others in providing false supposed to know that so it's a true fact all that mystery is why when there are situations where people are relying on others to help prepare those documents well but i forgot but you are but that explained when he gets the declaration he knows because he understands the way that the policy that as a matter of policy they're going to have these declarations drafted he's going to sign them and that's testimony that he read them carefully so that if you get by the time he's read the declaration he knows all the facts that the f b i know that and you know that's not correct that's an exaggeration right because you know that the milwaukee rip or did not include the in for russian from chicago interaction but thank you monster order right that's correct but from mr rolland says point of view and he they want he was supposed to be held liable in damages for perjury or reckless disregard of the truth this is why it's important i mistake was made i understand that and the f b i regrets it very much i must say the mistake occurred in milwaukee it did not it is not mr rollins who made the mistake and he as the as the district senior that he would be reading the declaration and the trying to understand what the f b i still had an interest that's not mr roberts his problem mr roberts believed the things to be true he believed that the system was set up to hood and as the district court pointed out you need to have some kind of culpable intent so in this criminal prosecution if if you know if we can if we can prove that first full knowing he says is completely true and honest things i'm in a senior position i know about the general contours and details from the investigation  the district court held up to going through these mountains of evidence that michael rowland definitely did not commit perjury and he did not exhibit reckless disregard for the truth he wasn't in a position to double check everything and he didn't believe he had to because his experience and thirty one years at the agency was that and something is important to this by the time he got the information it would be truthful and i acknowledge that made but it was not michael rowland systema saying and to the extent that it has to do with the way that the whole system was set up so that a very senior person would be would be signing the decorations and wouldn't be reviewing files but he's an f b i agent he has standards he's he he really he clearly honestly believed that there was not any particular mistake in anything that was given to him and we cited the pages of the of the testimony and  indifference is just missing you know he did not he did not tell a lie and he did not recklessly disregard the truth he really honestly sincerely believed that what he was saying was true and he had a good basis and he knew