two thousand and seventeen two zero five one nine read verses or at all please the court good morning i'm mary ended and i represent plaintiff appellant jerry reed defendants repeatedly threatened mr reed with criminal prosecution if he failed to hand over his social security disability benefits to them simply put federal law prohibits this the issues in this case have far reaching consequences for the ability of states to obtain otherwise protected federal benefits i'd like to spend my time today making clear that one the plain language of the statute and to the supreme court's guide if and careful or tell us that defendant's actions were simply beyond debate turning to the language of section four seven eight the statute uses the term other legal process as a catch all phrase to mean a legal process similar in nature to execution attachment and garnishment first the ordinary and straightforward meaning of the phrase legal process plainly includes criminal prosecution indeed criminal prosecution is the epitome of legal process it's hard to imagine what could be more of a legal process than criminal prosecution but second criminal process is also other legal process criminal prosecution for nonpayment of a debt it is a practice the exactly like execution levy and attachment it's a mechanism used to affect transfers of property we cited the historical use of debtors prisons in our briefing but there are also contemporary examples like the possibility of imprisonment in states like texas if you fail to pay child support which is used as a means to encourage compliant compliance with payment obligations did your client ever have to actually turn over his social security funds he did not diddy he did make payment with his social security fund so did he get claims are from the relevant time period from two thousand and twelve to june of two thousand and fifteen under which he made payments where the record shows that his sole source of income was social security disability benefits and i think i'd refer the court to our way six eighty one through ninety six where you have the forms that were filled out on a monthly basis where the front of the form shows they're looking at what are your income sources for the month mr reed and then the back and one of it is social sick i got you know six hundred to seven hundred dollars in social security disability benefits and the back of the form then says ok you will thirty percent of that sign here and remember if you don't pay this is going to be this could be prosecution for a third so what are you seeking we're seeking a reversal of the district court and remain and because the district court misinterpreted the scope of where he'd like to go qualified immunity should have been granted and we'd like to return to the district court and proceed on the merits of turning back to the statutory construction in fact beyond the kind of plain meaning in other statute confirm that criminal proceedings are similar in nature to processes employed to gain control over property if you look at the fair debt collection practices act there's actually a provision that includes seizure garnishment along with arrest and imprisonment as a means of collecting debt what's very clear from this provision which is sixty ninety two is that garnishment attachment and criminal prosecution are all things of the same kind a used them generous consist with the same type of thing is in fact defendant only ground for arguing that criminal prosecution is not other legal process is that the result of a criminal conviction is not a court order requiring payment this is fiction the texas code of criminal procedure clearly allows for restitution orders in criminal cases to any victim who suffered a direct loss because of the criminal offense and i and restitution orders are with another what's another kind of provision that suggest restitution orders would be and prohibited within the scope of for a seventh day is that for federal victim restitution there's a specific specific carve out from four o seven a suggesting that it's specifically mentioned to ever come for always probation on taking restitution from social security disability benefits this argument about suffers from even a more fundamental flaw so there's no there's no ability to achieve this from the agency or from the state because of community issues or what the situation b against the individuals that ordered this it's only against the individuals because i this is i was appointed at the district court and then withdrew and was appointed here and this was where the pastor i took the case  i can't say directly why he didn't proceed against the agency used at the district court those claims were dismissed he and but to your if you're asking also th could back up forgive me if we're going to go back over granted just one understand your argument your client is being threatened with criminal prosecution for failure to to pay for the model i got to be a felony yes ok and you're saying your argument is is that that threat of criminal prosecution is other legal process under the the federal statute ok now i guess what i'm do you agree that cow floor is really going to cover sort of how we read the statute i mean is there any other there is zero a case from our court from the supreme court the you can point to that will help us understand what other legal process means or is just going i think it's just kessler but then controlling governing precedent right we can't really construct that for me can we i think and i don't think you have to i don't think we depend on the eighth circuit case to overcome qualified immunity i recognize it's a high bar and i think and we would argue that mr reed meets this high bar kesler in the statute are so clear you read the plain language of the statute you read it and you think well i probably can't do this this would be prohibited within the scope have even read reaffirms that in speaks to that point because if kefir did establish a three part test for other legal processes which is a judicial or quasi i did issue a mechanism for control over part property transferred to secured discharge of go with the evidence in the record which shows that he started this feat how does once he started receiving benefits and he stopped as soon as the threat of criminal prosecution was removed he filed a sworn out of affidavit in connection with this first amend complaint where he said in paragraph eighteen i'm paying this under threat of because i want to avoid threat of criminal prosecution and the payment was to secure third to secure discharge of a liability created by the operation of chapter eight forty one the order of civil commitment and the written program require ments for the texas civil commitment office it's very distinguished it's very distinguishable from cafe where there was no there was no binding liability on foster care children to pay the state of washington for the cost of their care or say go to juvenile detention here there's a statute that says you have an obligation and if you don't fulfill this obligation we could convict you for third degree felony and you could back go back to the state of texas jail system how was he charged for the third degree felony charge  duress and an example of his payment actually can be found i believe at record three ninety two where he you can see that they actually accept his payment it had to be via money order because our client my client is totally blind he had to take a taxi to fiesta so there's clearly a record of the payment in the summary judgment record we have in the record with respect to the threats with theirs with respect to the threats for the four individual defendants still on this case at four defendant taylor who is was the former executive director of the agency you have the forms that she filled out that she filled out and approved that specifically include within them if you fail to pay you could well be are eligible for conviction of a third degree felony and then we have for his the other three individual defendants are mr reed's case managers at some point and for each of them there is something in the record with their signature and i believe mr reed signature where that threat was was written down i mean that's my point and maybe it's a bad question is  reference in the record from the threat to the social security benefits it's not it's not as direct as if you fail to pay your social security disability benefits but it is on a single piece of paper the front is what are your sources of income and for mr reed it clearly shows in the record his only source of income for this period was social security disability benefit i know the district court noted he at one point received some income from a wife that was outside the relevant time period in actually two thousand and sixteen in all our claims and in with the statutory amendment in june two thousand and fifteen if we cannot if you cannot establish that there is clearly established law in your favor type of threat yes definitely if the court doesn't believe that this was clearly established i would encourage it to to right on the first prong at that whether the right exist i think i think it clearly does obviously but it would the why needs to be historically been used as a legal process to collect obligations and secure the transfer of property you also have described that sort of arc a year and you cite a journal article some i was i've been looking at this recently night there wasn't something particularly on point but i would look to the some of the more recent decisions in this circuit on the use of debtors prisons on bail and bond programs i think those speak to the same issue  i when i reviewed them i didn't find something exactly as on point surveying the historic practices but i thought they also referred to several very reputable sources including the one i cited that this process was impermissible i'd like to address one final point in my opening which is three mean framing threats as merely is as merely informing mr breed that he had a payment obligation is unavailing on this record there's no evidence in the record they were going to make good on the threats in fact everything in the record points to yes they were ample evidence they were credible and coercive to mr reed he's a civilly confined individual held at the discretion of the state and he had no obligation to wait to be prosecuted for a third degree felony to find out whether the state was going to actually if they were serious about their threat at the state and the state official of simply cannot threaten to do may please the court this court should affirm the final judgment of the court below dismissing this case pursuant to qualified immunity the sole issue before us today is whether the apple knees who were employees of the civil commitment office should have to pay money damages in their individual capacities for informing mr reed of what the civil commitment statute already says what what amount of money does the record reflect that he paid out of his social security for this monitoring device your honor it was a monthly payment i don't know the dollar amount off the top of my head but it was always between about ninety dollars to one hundred fifty dollars a month but there's at least one example in the record where mr reed did not pay for his g p s monitoring fees and that's a page six fifty of the record and nothing happened to him there was no prosecution there was no legal process used and so that mere threat would violate the anti attachment provision is an important point in this case it's not clearly established do you think so you think it's ok to threaten them as long as you don't actually you can put the fear in them but as long as you don't actually carry it it's not improper coercion under the statute well i have two responses to that your honor first because this is a case of qualified immunity the apple eased in their positions and under the existing law at the time could not know that informing him of the possibility of criminal prosecution would violate the law and the second point is that they were informing him that violation of the of the civil commitment terms may subject him to permanent prosecution and it's at least noteworthy that the apple e's are not lawyers they are not prosecutors the civil commitment statute designates the sole authority to prosecute crimes under that statu to the local prosecutor's office or the special prosecutor's unit and mr reed did not identify any cases and i believe there are none that would suggest or analyze whether it's actually a third person using  a legal process and not the debt holder and whether that would violate the anti attachment provision that's something that's unclear in the law can't you know is a threat but i'm asking do you think the law as you too threatened if it's not criminal prosecution can you threaten that you will attach their home or do a levy against something that didn't the more modern traditional types of legal process could squeeze could you make those  threats as long as they're empty under the law i'm not asking qualified immunity i'm asking what what but to switch what is the agency or the people who from the agency some of whom are still there's viewpoint regarding the law well it would have to be a threat of the type of legal process that's actually prohibited by the statute that was the hypo it depends what legal process is being threatened but if they threaten the legal process of one of those types of things with and high attachment provision i think it would be a closer case but there's still no controlling law that says that would violate so you could read but it would not be clear to get qualified immunity if you threaten to attach the property or to take their to take their car or their house or whatever is that right you think you can take that but you still get stratify the munity possibly own where should we clarify the law in this area so it's very clear now going forward well because the civil commitment statute changed in two thousand and fifteen i think that might be close to an advisory opinion because that so no you're not trying to get any money it off from anyone for this right from government benefits i'm sorry your honor i don't understand the question going forward there's no money from the people to provide for their own  commitment devices i understand your honor that's not true the space committees are still required to pay their g p s fees however there is no potential criminal prosecution for not prohibited by the current statute is that under the current statute there is no legal process they tell this civil committees you owe these fees and if they don't pay them there is no criminal penalty there's no legal process now if someone then tried to file a lawsuit to attach to those benefits then i suspect we would end up in court again because that's where only falls within the prohibiting of the social security act and then you would say we didn't know would not feel comfortable arguing that we're entitled to qualified immunity however the facts of this case are they fall so far outside the existing case law that it's not beyond debate that any type of criminal  proceeding would fall within the legal process under reading of kevlar kesler mandates a restrictive interpretation of that process and it says it's clause i judicial or judicial order that is similar to those four types of attachment execution holder can then go collect on the debt for example could go to mr reed's bank and say i have this court order you have to pay me money out of his account there's nothing about a criminal prosecution for violating civil commitment terms that would allow the apple weeds or anyone at the office to collect on the debt mr reid could be convicted by a jury for failing to comply with civil commitment could go to prison and his g p s fees would remain unpaid so that makes it very there's no responsibility if there's no possibility a court issuing an order attaching his funds to to pay what he owes not as part of a criminal prosecution really that's just not my opposing counsel mentioned restitution orders can be part of a criminal prosecution however the texas civil commitment office does not allow for restitution to the agency and so that is simply a hypothetical that is the one he's prefers prosecuted for not paying for the monitor prosecutor that's a criminal prosecution that's right is that right that that just happens and the state criminal court that's correct so if he's found guilty of that isn't part of the toolkit of the court to order execution his property satisfy whatever he should've paid i would disagree with that ok i'm just asking right no criminal prosecution under the civil commitment statute which of course changed in two thousand and fifteen it serves its own purpose it's not a means of debt collection it doesn't have a provision that allows for debt collection the criminal proceedings the statute and the penalty of a third degree felony serves the purpose of strict enforcement of civil commitment terms because we are talking about sexually violent predators who've been simply committed by a jury and so the legislative history of the statute demonstrates that the purpose of the statute and the penalties under federal were they can put in their west that that's part of the the restitution or in fact we had a case this week where they were trying to get the prison the funds that the gentleman during that time it allows for a restitution order for example and i want to draw the court back to the fact that there was no legal process used here we're still talking about notifying mr reed of what the statute says that a prosecutor may choose to prosecute you and i as the as i said he failed to pass these at least once and nothing happened to him and he points to the eighth circuit case and unpublished the circuit case to support his argument believe to believe that they were prosecutors or that they would bring a civil action the actual language of what mr reed characterizes as a threat is that page six eighty two of the record and it says you may be subject to criminal prosecution and mr reed has been through the criminal justice system he understands that prosecutors are who prosecute crimes and if he didn't already know that from his personal experience the civil commitment statute tells him who can prosecute crimes and the of the record does not your honor if i can say that that was not the only change to the statute the criminal prosecution was removed not entirely their star still are some civil commitment terms that can result in criminal prosecution but that was removed as a penalty for most of the civil terms but there's nothing in the record to tell us why the legislature made those changes do you have any comments on whether at common law process included things like the debtors prison in prosecution under the common law i don't think that there's any body of discussion that that analyzes the meaning of other legal process kessler's controlling it says it's really a restrictive meaning and with regard to debtors prisons that's unconstitutional in texas under article one section eighteen and no court has ever found that the texas civil commitment statute violated that stat violates the constitution in any way and so the historical use of debtors prisons is is just not applicable especially because in debtors prison someone someone in debt was put in jail and their body was physically held as collateral and when they paid their debt they were released from jail here the apple e's could not take the jury's conviction for a third degree felony to mr reed's bank and say now you have to pay me mr reed was in control of his own money at all times and that's what makes this situation so different from attachment execution love your garnishment mr reed points to two cases to support his argument that it's clearly established that that there's no qualified immunity here he points to fill pot and bennett which are supreme court cases that predate kepler so it's unclear whether the analysis would hold up under the more restrictive learn but in those cases the state agencies filed a lawsuit against a social security beneficiary to attach to their benefit so in those cases they explicitly prohibited conduct of the entire attachment provision was used by the state agencies but those cases give no guidance to officials in this conduct because they they dealt with attachment actions and  forgive the hypothetical but you know we might as well go down this road i mean if suppose there were a state criminal provision that allowed the state to proceed against someone in mr reed's position and part of the penalties for his failure to think your implicit argument is that the criminal prosecution may be one step back from what we've got and care for which is that or fill pot where we have a we have the state proceeding to attach the funds that's clearly not ok under the statute but i'm just moving  one step back and saying a criminal proceeding he didn't pay the fines we will on the he's convicted we can attach the funds well the focus of kessler was on the actual legal process so in your hypothetical i don't think it's the criminal prosecution that would be considered legal process it's the resulting order of attachment or garnishments and that's what kepler tells us to focus on there's nothing about the actual process of legal of a third degree felony qualified immunity the supreme court has warned mandates that the law cannot be defined at a high level of generality and the supreme court warns us against that again and again in mullan that and recently in two thousand and seventeen in white versus poly while there doesn't have to be a specific case exactly on point the existing case law has to deal with a situation facts and circumstances that sufficiently specific such that the particular contours of the conduct here are violate someone's rights beyond debate and there simply does not exist case law that meets that burden that bar for example mr reid did not point to any case that analyzed whether a criminal proceeding could fall within the meaning of other legal process there's also no case law that analyzes whether it's a third party that engages in a legal process and not the debt holder and whether that could be mean that the debt holder violated the anti attachment provision somehow so there's just no guidance out there to these apple ease that their conduct back when it occurred would violate his rights qualified immunity is meant to protect all but those who knowingly violate the law and the conduct here squarely falls within the protections of qualified immunity and for these reasons the court should affirm and if the court has no further questions all return i'd like to briefly address or points in rebuttal first i believe page twelve of the closing counsel's march eighth two thousand and eighteen briefing is where i found support for the statement that legal process this is the same error that the district court fell into that reading the courts use of the term restrictive referred to kind of a sea change in social security law that felt part of bennett were too broad now we read this much more narrowly that's not exactly correct when the court referenced i were more restrictive meaning it was more restrictive than washington the washington state supreme court's meaning which said this representative payee process which is explicitly authorized in other provisions in regulations of the social security act reading that to be prohibited that's far too restrictive of a meaning they'll pot in bennett were actually i believe reaffirmed by kepler they were both cited and in the ending paragraphs of the opinion so i would i would we would argue that kepler is although gives guidance on what the meaning of other legal process is we fit with that but in that meaning and there's no canon suggesting oh social security protections are now interpreted restrictively in fact the exact opposite is true the pot statement that there's a broad ban against use  prohibited items against social security benefits my third point i'd like to make is that everything in the record points to yes and that the summary judgment this court had to assume that m reid believed that they it that the defendants were going to pursue a prosecution it's in a footnote in the summary judgment briefing there so that i believe the court could take judicial notice that in this period the state of texas prosecuted fifty percent return fifty percent of individuals who are civil they can find two state jails for third degree felony if the court would like more direction on that i'd be happy to provide it that it was a credible and real threat and they distort the summary judgment posture by saying oh well this is a hypothetical we have to think he didn't ever they were going to do this he didn't know everything that's in the record is yes we have to go with it counsel do you agree on remember if you agreed with us or not do you agree that the people in this case who actually made the threats do not have authority under the scheme as it existed them to actually bring is that right i think it's not in the record i think that given the high number of criminal prosecutions that occurred from this office that that would be something that would be developed possibly  mand that whether they actually have that authority or not based not on matters for the qualified immunity i don't but i don't think it matters actually though because at this stage because it's other criminal prosecution for collection of debts by that nature there would be a maybe a third party making the threat maybe not exactly the debt holder when there's criminal prosecution involved but it's clearly prohibited because the result is the same it's the transfer of an asset secure an obligation and there someone with authority or and or the debt holder believes or the believes reasonably has authority and they can make it because it's so course that my final point i'd like to make is that the record does tell us there are constitutional the state of texas updated the statute because there were constitutional concerns many of them it's in the actual preamble to the legislation it's not in the briefing but it's some of the summary judges earlier briefing that the preamble to it i believe says you know there are significant constitutional concerns i don't i won't represent that they had to do with this case i believe there are some other concerns having to do with some in kepler of how do we define other legal process what is are the similar characteristics that these three things all shared and quasi judicial securities transfer of property and  secure discharge of a liability all three things are present in this case also if you look to i think the you see in other statute where imprisonment or threat of imprisonment is used it's what the provision is this sixteen ninety two efore and it's things that are of the is that the fair debt collection practices act the prohibitions are that if you're a creditor yes you can you tell someone you have to pay their debt  news and we appreciate it thank you we're going to take a brief rece