representation thank you your honor we are joined today by our supervising attorneys stephen tala field and gary watt i plan to reserve about three minutes of my time for rebuttal and i'll do my best to keep an eye on the clock the summary judgment for the defendant on the grounds of qualified immunity because misters of all is right to notice upon the rejection of his mail was clearly established specifically the district court erred by taking an overly narrow approach to the clearly established test by looking to see whether prior case law addressed an open mail rejected by the prison for failing to comply with prison regulations am i right that we only get to the qualified immunity question if we get past divisions though it seems like maybe bivins is your biggest hurdle yes and your honour's misters of all is case presents a routine action against a prison official involved in a specific incident of misconduct and as such involved even score concert a suit seeking damages from an individual officer but bivins is about cases where there really is no other did why weren't there other remedies here that would have eliminated the need for a vivants remedy well here your honour's misters of all us constitutional harm occurred the moment his mail was rejected without notice and both injunctive and declar wouldn't be adequate to redress to look backwards and address the past violation that he suffered and moreover the government suggests that he could bring an action for an equitable relief under eighteen u s c three six three six but that statute doesn't create a private right of action so it's unclear what statute or judicially created remedy misters of all that would even be able to bring an action for equitable relief if not for  interaction and additionally the administrative remedy process was not an equally affective alternative as required by the supreme court's carlson versus green decision and this is because it relies on the prison's ability to police itself and mr savalas case highlights the danger of allowing this because here the bureau of prisons pointed to its no notice policy to find that misters of all did not have a right to notice but even the government on this appeal has been argued that ministers of all it didn't have a constitutional right to notice when his mail was rejected but given six monetary damages that's correct so if you can do that even if but nominal damages aren't really better than injunctive relief are they i mean if we disagree with you and think that there was a kind of injunctive relief and in fact maybe still is a kind of injunctive relief that your client could get then it is the one dollar he would get a nominal damages going to help him so much that it's better for him to have a damages remedy instead of injunctive relief remedy well if your honour's do you feel that mr zavala could have brought and injunctive relief or could still bring one he should be allowed to amend his complaint because option but also by the time misters of all had exhausted the administrative remedy process and injunctive relief would not only not be affective but misconceived had left the prison and the no notice policy was no longer in place but his once his constitutional violation occurred and we where do you get the idea that there's a no notice policy as opposed to mean is there something in writing that was a no notice policy and yes your honor in when mr zavala was declined notice he requested the through the grievance process and he also received copouts stating that when mail was rejected and opened the prison is not in type does not have to give misters of all  notice i see but i thought that was still the policy why are you saying that ended well and the district court summary judgment order it noted that the policy only occurred on misc this watch and when her tenure ended at the prison  policy was no longer in place do you think that's true i mean i think this policy my understanding is the bureau of prisons male policy is still the same that you have to have these various conditions of weight and everything and that if it's not marked correctly they return it without notice is that your understanding of the current that's not my understanding my understanding is that misters of all is not challenging obviously the regulation that led to the rejection of the mail but that once misc was no longer the mail room supervisee the mail room no longer declined to provide prisoners with notice once the well it's a triable issue of fact your honor so it would have to go to the trial court to determine liability and damages but the district court noted that it was a practice which according to the evidence only occurred while misc was the mailroom supervisee and if the prison is providing notice now to prisoners when an open mail is rejected it demonstrates that it would not be burden some or there would not be practical issues with providing misters of all that would notice when his unopened mail was rejected as water already had a process in place for providing prisoners notice in all other circumstances policies because the fundamental or the due process right to notice is so fundamental and certainly while areas of our issues a prisoner in safety or control might be within the exclusive purview of the bureau oh i was going to discuss the qualified immunity analysis previously and what you said finally you and the villain's issue to address the qualified immunity analysis misters of all is right to notice upon the rejection of his mail was also clearly established and the district court took an overly narrow approach a plaintive does not need to present a case directly on point as long as this press attention put the statutory question beyond debate and as the supreme court noted in hope versus polls or a right can be clearly established even in novel factual circumstances here male policies have been clear since the supreme court's decision in one thousand nine hundred seventy four pro cuny versus martinez and sense then no circuit court has ever found that a prisoner was not entitled to notice upon the rejection of this mail no matter the reason for the rejection so isn't this situation a little different than any of the cases that you cited and at least that i could find in that the mail was sent back so it's one thing if it's burned or thrown away but this mail was sent back to the lawyers in question and at least the second one then repackaged it and sent it back and he did eventually get the mail so it seems like there is arguably something different about an open mail that sent back because there is an opportunity to try again that doesn't exist in a lot of the cases issue was really there was never going to the mail was never going to get to the prisoner well some of the ninth circuit cases have dealt with mail that has been sent back to the sender and the issue with not providing formal notice to both the sender and the prisoner highlighted in ministers of all us case because here when it was sent back to the sender it had a label on it that said receiver did not want which is not the case misters of all a very much wanted his legal mail and that was so he could leave the sender to misconstrue why the mail was rejected and the district court overly narrow approach to the an open vs open distinction ignores that the justification for providing notice to a prisoner when his mail is rejected is one to alert the prisoner to the fact that he was sent mail and it was rejected and second to allow him to contest arbitrary applications of the mail policy and the government hasn't suggested why given these justifications for the due process write an open mail should be treated any differently for an open mail well so if it was an opened and returned to the lawyer but without that erroneous stamp w be a different situation i mean they would come back and i guess it might say too heavy and then the lawyer could send it back in two packages instead of one at that point would there be a due process violation there would still be a due process violation your honor because as the supreme court noted in procuring a versus martinez both the sender and receiver of mail have interest grounded in the first amendment through the mail and that the minimum procedural safeguard if it eventually gets through isn't that right satisfied not necessarily your honor because here mr zavala was also harmed by the delay in notice and if the prisoner is told that the mail was rejected they can try and find out what the mail policy is how to correctly get it see if it was correctly applied  just returning the due process right to notice can't depend on a separate third party notifying a prisoner about the mail it must come from the government and the b o p in this case if we thought that your client should be given leave to amend to plead injunctive injunctive relief claim do you know if he's interested in having that opportunity i believe he might be interested your honor but again the most it wouldn't really red ress the violation that he suffered because it was a backward looking past violation it really would be damages or nothing for ministers of allah so you think he does not want the opportunity for leave to amend i think good morning may it please the court benjamin hall assistant united states attorney on behalf of the federal bureau of prisons officer sued here in her individual capacity for money damages i want to begin by responding inmates in federal court i do have remedies in that arena and those are remedies that serve as an alternative and a reason to refrain from creating a new remedy in damages under britain's for example reference to the possibility of an injunction requiring the warden to bring his person into compliance with regulations or some other form of equitable relief that's at one thirty seven supreme court at eight hundred sixty five  addition in the correctional services court versus the let's go case the united states supreme court made reference to the remedial mechanisms established by the bureau of prisons and also suits in federal court which we have never considered a proper vehicle for altering an entity's policy injunctive releases injunctive relief has long been recognized as the proper means for preventing entities from acting on constitutionally that's at five and we would ask you the question anyway as to judicial remedies but it's so it's a little bit late in the game to be talking about alternative remedies and defense to have been supplying the i appreciate what you just  mean you're citing the last guy which is two thousand one or maybe two right but prior to the abbas you case courts around the country including in the ninth circuit have assumed that begins would be extended to various other kinds of lawsuits relating to prison life abbassi represents a significant change directed by the supreme court justify extending a remedy in damages beyond the three times the supreme court has recognized the damages the supreme court has never allowed a private remedy and damages for prisoner alleging a procedural due process search and seizure under the fourth amendment davis versus passman which involved gender discrimination violation of the equal protection component of the fifth amendment and the carlson versus green which is a prisoner case involving deliberate medical indifference in violation of the eighth amendment the supreme court has not recognized it begins a remedy in any new context since carlson was decided nearly forty years ago and in a bosie the court could i ask you something different i'd like to know how this mail should have been labeled and how anyone was supposed to know how it was supposed to be labeled you understand my question if the lawyer wanted to get a package that included legal documents to his client what was he supposed to do to get that package to the  administrative person on the responses to mr as well as administrative remedy to address that issue and in particular the warden's response which is in the further expert excerpts of record at one twenty nine notes that  a package received without a properly completed packard package authorization form or without markings indicated authorized materials enclosed is considered an authorized and shall be returned to the sender  mail room staff occasionally refuse except just at the local post office based on the above outlined procedures packages refused at the post office or returned to sender by the u s postal service so is all that so and what is the exact wording that supposed to be on the package from what you just read i believe it's authorized by bureau policy i'm not sure that's and how was the lawyer on the outside of the prison supposed to know that there there is a person handbook that is available to all inmates there is an inmate mail manual that's part of the publicly available documents that are published online available from the bureau of prisons  i would submit a lawyer representing a person who is confined in a federal facility has some obligation to learn and comply with those so i read the regulations and i hope i'm a little bit better than average at reading rules and regulations and i thought it was completely confusing how anyone was supposed to get mail to their client and there's this provision about special mail it's in a different place than nothing about wait you don't know if that counts as a package what if it's a if there's a legal mail is it actually a package i mean it's completely incomprehensible do you disagree about that there's no single provision that says this is how you get legal mail to a client i would concede that it's  incomprehensible i would argue that it's in fact complied with frequently throughout the country i mean do you have any idea how often mail is rejected in the is it legal mail is sent back now there's no evidence on the record and that's because no one even knows because they're saying a back without notice right well certainly not routinely well how do we know well what the institution something was over a certain weight or not exactly labeled correctly it was sent back without any record or any notice so we have no idea how many times legal packages that are exactly labeled with the language authorized by bureau policy we have no idea how often that happens that's correct and it one of these packages was labeled special mail which i understand to mean it's attorney client privilege and can only be opened with the prisoner there is that right i would point out that the packages themselves have never been in evidence the packages themselves up never been but isn't the allegation i mean where you have to treat the allegations is true at this stage an allegation is that one of them was labeled special mail right that is the allegation and is there any way that something labeled special mail wouldn't also be authorized by bureau policy well i'm not sure that special mail would be the correct notation well isn't special mail what you're supposed to say on legal  l i don't believe so you know i don't have the regulations of how are you supposed to label something that is attorney client privilege that it can only be opened in front of the prisoner who's the client words to that effect i don't remember there is a believe  suggestion of the language somewhere and i think it's special mail so if you let's just let's say whatever it is so maybe it's a special mail open only one prisoner whatever the language is for legal mail if it says that then doesn't that indicate that it's legal mail that would be authorized by bureau policy if it says that again we don't have the packages they're not in evidence we don't know there's no record of those packages at the prison all we know is what m zavala has said his attorneys told him about what they put on those packages because they were returned i mean you couldn't you could never build a record on that unless the attorney kept right correct is what a policy now b o p s on with respect to this you know the suggestions and made that the policy has changed hasn't i want to be a little careful there because i don't believe there's anything in the record before the court on that point  my client who has been a defendant in this case for nine years now has not served in that capacity at the prison in that water since two thousand and nine  you're not prepared to and not that that's your fault but you don't know right now well my understanding is that the policy is different now ok i don't know the details of that and there's nothing in the record that i can point the court to and if you want he could allege you know ongoing or a violation that was capable of being repeated i think it would not be because the question of what the policy is now would obviously implicate that right and you have no you can't tell us anything at this point but your understanding of what changed i don't know the details of that and i would be loath to suggest the details to the court without without knowing precisely how it's fair and what's and what's before what has been before regarding abbassi mr zavala has contended here that this claim does not arise in a new context because davis versus passman involved the fifth amendment and carlson versus green eighth amendment and he argues that his claim simply combines the two and therefore does not arise in a new context under misters of all its construction any prisoner seeking damages under any clause of the fourth fifth or eighth amendment would have a remedy under britain's this is certainly not what the supreme court instructs the supreme court has cautioned that even a modest extension of the three existing bivins remedies that have been recognised is still an extension davis versus passman involves a substantive due process claim involving gender discrimination reply brief less than two months ago this very court in vega versus united states declined to extend the buildings around me to a federal prisoners procedural due process claim under the fifth amendment the court held in vega that the prisoner's claims arising out of the prison disciplinary process plainly presented a new context under a boss of my time is almost up just close by  pointing out that there are numerous factors that counsel hesitation in creation of a new remedy here those are detailed in the brief and i don't have time to go through them in summary i'm askin saga respectfully should decline to extend bibbins to create a new remedy in damages here in the alternative the court should affirm the district court's decision on the ground that mrs can get is entitled to qualified immunity thank you you thank it is true that mysteries of allah search that is cases not present a new context but even if it does he may still bring his bit of interaction because there are not special factors counseling hesitation misters of all us cases readily distinguish abuse claims and in vega the plaintiff was challenged and wouldn't be complete relief in a bossy rights they sent their already beaten up in the past the only remedy would be damages witness that's true your honor but at the time that the plaintiffs in a bosie were suffering the harm injunctive relief would be effective at preventing the future violation and that's exactly true for your client too isn't it but misters of all is constitutional harm occurred the moment that his mail was rejected it was so was the beating up in a bazzi as soon as the beating misconduct which is what misters of all is doing here he's not while the no notice policy is what caused the deprivation the the injury itself was when he was denied notice and his claim was backward looking to win the prison denied his notice and the injunctive relief would not be able to redress the past violation of his constitutional harm and he would still need to prove the damages that he suffered on  a trial he's just simply trying to get there additionally or honors in vegas the process that the prisoner was seeking the hearing was provided through the administrative remedy process by it very nature which could not be done here and as your honor was pointing out it was very difficult to understand the regulations on how to send mail and here misters of all his lawyer even tried several times to call the prison to determine what the correct way to send the mail was and on summary judgment all inferences in favor of misters of allah including how the packages were labeled and the and here he asserts that they did have the proper special mail label but were still rejected without notice was there for their questions thank you your honors thank you both for your arguments today the case just to be submitted for decision and thanks again for your pro bono represent