day he was deprived of exercise and natural light to prevent from seeking treatment for dental issues that were so severe that he had trouble sleeping and he testified however the worst and most unbearable part of this was not knowing if or when he would ever be released and that was because the defense defendants here systematically the private him of the opportunity to have a hearing and to present his case for why you should be released from solita question in this case ultimately whether mr gonzalez has a remedy for the violations of his constitutional rights and the answer that question must be yes is the damage or nothing case and given the remedy is necessary to ensure the prison officials have an incentive to comply with the constitutional obligations not your client concedes that is fifteen minute claim presents a new context for business purposes yes or are so so conceding that can you address why a special superficial similarities in that the defendant is the same involved a fifth amendment claim but that was a counterterrorism case after nine eleven involving high officials the f b i director and the attorney general were defendants high level policy this is nothing like that when congress enacted that one it was responding to was not the existence of the event itself but rather the fact that the supreme court upheld the prisoners and not have to exhaust their minister of remedies and so what congress does and this is clear from the legislative history that we cite in our briefs congress does it says you have to go through the remedies you have to go through the administrative system and then if you do those and you still haven't gotten relief then at that point at that point you can bring  focusing on the problem the prison abuse and how to remedy it and they don't specify that the remedy should extend beyond this carlson they don't go on to add money damages just specify money damages remedies for different sorts of prison abuse claims but that's true i think that's the government's argument that's their argument but that's wrong with that's wrong because congress assumed in the background that there was a defense plan and so they didn't need an act a new statute they didn't need to say now you can get money damages because the supreme court already said in carlson you can get money damages for violations of constitutional rights if you are a prisoner and you and you can exhaust your is that mr graham he's first so they say do  while you're out of the district court said that but the only remedy is that exist or could possibly exist or all forward looking at the pay be a statute or maybe an injunction or something but those are all forward looking and well maybe not but what all the statutes do is say going forward maybe you can get a b s remedy maybe you can get an injunction to they don't do anything for all of the past violations all this past losses and the only cases that the government sites on this point are bush and schweiker and both of those supreme court cases involved the remedies of this that they didn't allow for additional combat consequential damages but what they do allow for is in bush the court says you have adequate remedy because you can get your job back and was a government employee gets his job back and he gets back pay and there's not a supreme court case on that point there's a seven circuits case an angle that says that there are but there's no supreme court case that stands for the proposition of the government wants to say it's the bush allowed back pay the gentleman guy's job back retroactively and schweikert the social security claim and got their benefits back so they got monetary relief for the past violations of their rights but in this case the government saying no you don't get any remedy at all for all these past file ations you are locked in solitary for three years you don't get anything no matter what and so that is not consistent with the supreme court's precedent do you with regard to eighth amendment claim you also say it's a new to the extent that it goes beyond medical the medical treatment aspects of the claim can you help me understand how your bifurcating the a and then that plane sure the district court actually did that itself on not sure that it's totally medical claim the rest of it is maybe slightly different from carlson and that there were not that was the case with an inmate died of asthma that maybe these claims are slightly different in that they involve extended confinement  so we say that at least the dental claim the medical issues are are not in your context and other stuff maybe just because of how it's been defined by the supreme court but defined with the other stuff is the length of his confinement  asked both both sides if they could so a week from today if you could submit a two page letter just informing us i didn't see it in either set of briefs but i'd be interested in knowing whether conditions of both of mr gonzalez's asserted bivins claims arise in new contexts once they do the inquiry becomes whether there are sound reasons to think congress might doubt the efficacy or necessity of a damages remedy in those context and there are plenty of reasons here to doubt that congress would have wanted any damages remedy  that's a new context because of the very narrow way in which the supreme court in a bosie uses the context inquiries so the supreme court in a bussy was confronted with an argument that  the plaintiffs said was almost identical and practically indistinguishable from the eighth amendment claims and carlson the supreme court nevertheless held that even the modest difference between the context a new special factors inquiry and some of the new developments that the supreme court cited were for example the enact ment of the p l r a which congress had not yet in acted when carlson was decided the supreme court also pointed out that the particular violation of the constitution alleged by the abbassi plaintiffs was different from the violation alleged by the carlson plaintiff and so those alone forward the upshot of our position is simply that abbassi dramatically changed the law undergirding when a remedy may be implied and so before a court may imply a bevens remedy it is not enough that a court of appeals for example may have decided that there could have been a bevens action available in a particular context the only question is whether the supreme court has recognized it and if the answer to that is no then there must be a new special factors inquiry along the lines of the special factors inquiry described in abbassi and so the fact that this court in the case for example just assumed without deciding that a begins claim was available for the fifth amendment violation does not answer the question that a bussy requires courts to ask specifically whether there are indeed special factors to thought and reasons why congress might not have wanted to damages remedy and it might be helpful if i could walk through a couple of those that cross cut both of  claims here the most important is that mr gonzales as many alternative processes available to remedy both the fifth and the eighth amendment violations he has alleged for example he was able to file in this circuit one thing we do know and this is also an important clarification the other side has simply assumed for purposes of this litigation that an alternative process only suffices as a special factor if it gives adequate or equal compensation for the constitutional violation and the supreme court has repeatedly rejected that view in the schweiker case it's important to note that the supreme court at the very end of the opinion of the majority opinion says you know the entire crux of this case is that  plaintiffs are alleging that there was a constitutional violation and they're not going to be adequately compensated for it but congress is the entity that gets to make that judgment and it is not for the judiciary to second guess it and in a bosie to its so the only thing that the people are any permits inference for with respect to congressional intent is that congress didn't want to overrule carlson right and and congress was quite aware that those claims would go forward but as a boss he makes action could just be presumed now there is no damages action unless the other side can come up with a very compelling reason to think that congress would have wanted it and as judge livingston pointed out in an earlier colloquy with opposing counsel hundred which was the first prison litigation statute that congress and acted to regulate this field up there was no money damages action same thing in the same thing in the prison rape elimination act and so on so all of this indicates that given the with this but i'll bring it back to why exactly the argument is that the treatment aspect of the at the and then they claim presents a new context because i'm having difficulty understanding why this is it squarely within carlson so in your honor here here where the relevant facts the inmate had a serious and chronic asthmatic condition that the b o p s usuals knew about but nonetheless they can find him somewhere with an adequate facilities but that wasn't the heart of the claim the heart of the claim was that when the prisoner had the asthma attack the b o p s officials failed to respond adequately and indeed gave him a broken respirator and so the prisoner sadly died as a result of those actions or the failure to shoes didn't have shoelaces at some point down the line he had muscular weakness that necessitated a nice surgery those are the sorts of claims that arise in a different context because they don't present the same sort of emergency situation now i think it's the emergency nature of it judge chin that provides the easiest way to see why the context is new factors inquiry when a factual pattern emerges that similar to carlson but this factual pattern is dissimilar in the sense that instead of an emergency situation necessitating quick medical decision making that resulted in death had chronic medical conditions that he could have sought relief for through alternative processes such as the remedy such as the administrative remedy program and all of those other treat asthma and i don't think you're arguing that it's limited to asthma oh no of course not so it seems why isn't it as simply a failure to treat claim not necessarily an emergency because the supreme court said and you know you don't have to take my word for it when it looks at carlson it says you know even what this court might perceive as minute factual differences cannot circumvent the special factors inquiry and so all we're saying is that because the factual circumstances are different the special factors inquiry must take place can't just be controlled by carlson and indeed you know in the supreme other section discussing carlson they themselves say that carlson if decided today may have come out a different way so that's why we're standing here suggesting that there needs to be some more sensitivity to the need to have a special factors inquiry even in circumstances that might seem difficult to distinguish from carlson held in an a in the shoe that's right there are some a couple of answers the first is i want to just put this marker down the court doesn't need to reach the question because for the reasons i just gave there is bivins remedy for the particular fifth amendment violation that your question encompasses but setting that aside and assuming the court disagrees with that premise you know those allegations might be sufficient to surmount twelve b six your honor but you know discovery has occurred and after discovery there has been no actual evidence a deuced to suggest that warden hastie's mind was not susceptible to change if you do a close look at the citations that we give on this point in our brief you'll see that all the other side has pointed to are just general statements of the ordering of authorities warden hastie is the individual with whom the buck stops and everybody else's decision is subordinated to that of the warden but the record also reveals that  every week warden hastie convened a meeting where everybody could raise issues with respect to prisoners a lot of psychological individuals were permitted to present their reports a lot of the lieutenants were permitted to present their reports the captains could present their reports it's quite different from the situation that the other side has sketched out that this court addressed in the proctor case in twenty seventeen where there was evidence in a deposition where they asked the warden or the state prison officials was there anything that could be done to justify removing mr gonzalez and they said nope there was nothing that could be done so at the end of the day the argument with respect to due process really appears to be that you know a good process would have resulted in the release gonzalez but as warden hastie himself said mr gonzalez was in the special housing unit because he had repeatedly stabbed another individual with a ten inch shank in what warden he characterized as the worst assault he had seen in his tenure as a warden and it's important also that mr gonzalez at no point has challenge the merits of that decision so for these reasons if the court decides to disregard the a bussy framework and create a new bivins remedy in this context warden hastie and the other defendants i represent would still be entitled to qualified immunity unless the court is for the questions we ask that the judgment of the district court be affirmed thank you thank you your arse just a couple points in response on the last item i think that if you go back and look at the deposition testimony of officers lopresti you'll see that what they testified to is that if the warden said that this gentleman was going to stay in shoe he was going to stay and shoot and we can debate about what that meant was that the chain of command or something else but that's this is a summary judgment case and so that's not a decision for this replacement remedy and that's not been overruled with respect to the administrative remedies that also this is as i was saying earlier that is part of the entire remedial regime of which  held that and mccarthy versus madigan case and so that is also off the table a b s is off the table because it does not provide any remedy for the past violations of mr gonzalez's rights and even more importantly given amendment and so all of the alternative remedies that they have suggested might be available really are not they don't provide any relief at all and so they can't possibly replace them in the remedy which again congress assumed existed when it acted the congress did not need to enact a new damages remedy comment congress looks at the case law and says oh it's already there we just have to put an exhaustion requirement in front of it and then we'll be happy and so that's what they did they left