he suspected manipulation of its stock in started investigation he deferred salary so by all stem could pay for the investigation he complained about monkey business at that at the company in a phone call and that phone call the f b i agents intercepted by a wiretap all of a sudden he was arrested for a pump and dump securities fraud scheme even though white himself did not sell any stock and he could not because his stock was restricted his life has never been the same no publicly traded company would consider hiring him so it's white suit for damages but his three claims were dismissed at the pleading stage without any discovery without a warrant for a large the district court in determining standing guessed at when dwight calls were intercepted for purposes of the fourth amendment and it could not know when his calls were made but it concluded that he didn't have standing because only certain calls were mentioned but we haven't had discovery we don't know that his calls were not previously  intercepted the district court took it on itself to decide whether the wiretap applications had probable cause and it states that it page nine of it's opinion but it does that at the pleading stage it makes a finding of fact of probable cause but it doesn't have all the information we don't even know if all of the wiretap applications have been unsealed the f b i sought to unseal applications which we don't know about because they were sealed so we still don't know which ones exist the district court also relied on an affirmative defense at the pleading stage the good faith reliance on a wiretap order that's a page ten of the decision that's not appropriate at the pleading stage it was not briefed we don't know what the agents did internally that requires discovery and it's really the tail wagging the dog when you say someone applies for an order and then  faith to lie on the order it's what's in their application that's the key issue whether they omitted information the district court then applied the applied yes one thing a phone call what was the wire thought back to remedy well for a number of reasons but that's not the adequacy of a remedy if i may there are there are two is could not proceed one is if defendants show alternative remedies but what's clear from bivins and carlson and other supreme court cases and many other cases throughout the country is that there are two requirements one is that there be an express congressional statement that this is an alternative remedy to bivins and second that the next congress  equally effective so no one cited any congressional statement not to district court not defendants there is none that should end the first part of the test the court this a court did not consider the second test it said there were other remedies it didn't consider any congressional statement which is required in your citation for the rule that an express say that there has to be an alternative to the so i mean where do you get the the statement that you just made here that there has to be an express a congressional statement and carlson i'll explain why in bivins the court considered whether there should be a direct action directly under the constitution and it decided if there are if if congress said that there is an alternative remedy you can't directly under the constitution then in carlson it's reiterated there are other supreme court cases as well there are clip that's why when the district court did not address the two requirements for that alternative remedies test agents now say they're not required they say the current approach in ziggler is not to require these two things ok so i cited the post various globe cases i counted eighty two as of the time in my reply brief i quoted cases in which they continue to cite these two requirements agents have not cited a single case after that states there are really extreme position that ziggler implicitly imply adly did away with two requirements supreme court precedent is not done away with by implication there has to be some statement designated as such or a perfect alternative to i'm just trying to figure out what my let me explain how does carlson survive sickler i'd like to explain that and if particularly since if it were does not say where over ziggler concerned the second test the special factors test our case does not concern that the district court specifically said we're not i'm not deciding on the special factors what ziggler said was if there is an alternative remedy that doesn't have the congressional express statement it can still be considered as one of the factors for the special fact that's what and it's reasonable and the conclusion that agents ridge on it's face is correct if you're talking about the special factors test but it's not correct as to the the the alternative remedies test which remains there are two requirements for that one that's the one the court decided and and there is no express congressional statement so there would have be some if if we are to assess the special factors test that really requires some briefing on it so what would the wiretap act have to say to fill or it seems like the existence of a the existence of a strong separate structure that governs wiretaps and provides a remedy the wiretap act evidence a legal mandate would constitute a meaningful difference and that under sigler and therefore preclude extension of evinced your claims relating to the wiretaps the wiretap could certainly be considered under the special factors test but absent an express statement by the cop by congress that this is alternative to bivins and it's equally effective can i ask you about  was a district court wrong to find that you did not properly allege standing in the missouri or wiretap it seems your second amended complaint does not think your theory of the necessity flaw in the wiretap application with the ms or wiretap application and you don't seem to challenge the district horse dismissal of your wiretap claims as to the failure to let standing but you raise other reasons why you had s i'm i'm trying to figure out what your position is on that the district court could not reach the standing issue in our opinion because we don't know when the calls were made we know when a couple of calls were made that the f b i chose to point to but we don't know the full gamut of calls not at the pleading stage and so what the what the district court was trying to do was parse as to which applications  all or at standing but we really don't have a sufficient factual foundation to do that parsing maybe someday we will maybe at summary judgment we will but right now we we can't do that does he have standing on this one what's the time period were was there any contact involving bruno or you know we need to get discovery and find out from the i what intercepts were it during that first wiretap application then the next one as well and so forth in fact in the july two thousand and eleven application were all there is named as a target subject so he's he's recorded in june maybe before but in june they decide now he's becoming a target subject and that leads to presentation to the grand jury and indictment and arrest so we there's indications that there were other were wiretaps even after july but again if they're not unsealed and i don't get discovery i can't make allegations so i asked the court to let us proceed have our day in court we offer to shorten plain statement of the  claim there is substantial information i could proffer we could have meant the complaint you agree that as of the present time your allegations are that he was  we're not limiting the claim to to just a minute or wiretap he's designated as a target defendant let me explain if i may it's not just that one it invasion we're talking about know that the investigation by the f b i was so incredibly flawed that they didn't even apparently know his stock was restricted and couldn't be dumped there's no indication the applications that basic documents or viewed like trading records and securities filings contracts and board minutes there's no interviews mentioned of people in the press releases of board members of securities counsel which reviewed the press releases or even of one or him self there's no mention of the company's own investigation into these matters there's no mention that brunel or deferred salary that his stock was restricted they didn't learn the big most basic facts and yet that the very person who's trying to find out what's going on gets his life ruined as a result and with you wa good morning kyle hoffman four defendants jeremy tar water and charles khaki and i'm here with my colleague dan butcher there been a number of things thrown up here at the court and i i would just like to focus on the fact that the two things that have been appealed or the finding that the buildings claim was foreclosed because there were alternative remedies begins was a case where officers went into a person's private home with the person's consent no warrant but then arrested him handcuffed him threaten to arrest as family and haul them into court so no statute and volved just mirror your garden variety fourth amendment search and seizure case arrest without a warrant and search and seizure without a warrant with the case here awful arrest and search well recall your honor that one of the things that ziegler says constitutes a meaningful difference is the legal and statutory mandate under which the officers are operating what's the legal and statutory mandate here sections two three two five zero zero through two five two of title three of the on the bus crime control bill in other words the wiretap act there's a very lengthy specific statutory regime here where there isn't in the buildings larger variety for them than that and i guess that's an additional on the wiretap act but the other at it's core seems to be very similar to the unlawful arrest we you are i'd get i guess and just from your brief trying to figure out what language in ziegler tells us that the facts of one's claim have to align up nearly identical to the facts involved in  short answer to that is i'm not sure what i would want to use the language in and ziggler which says for instance the the claims against the prison warden were very similar and practical effect to the claims and carlson v business case that was approved and the supreme court said that that and it also said the practical differences are very small are small well they're nonetheless meaningful as an up to make it a new contacts i guess let we are not creating cause of action anymore to enforce constitutional rights if they haven't been previously approved by this court that's that's the language of  so so that's your position our position is this what the supreme court's position is and if the case is different and meaningful way from previous presidents case is decided by this court and how is this one position well we in the sense have to go with what the supreme court tells us which is these are the kinds of things that count as contextual differences one of them is the statutory or other legal mandate under which the officer was operating and when you compare one where it's just your garden variety fourth amendment case versus another where it's just very detailed statutory regime title three that's  seems and i may be correct that mr brewer is is claiming an unlawful arrest and search and wiretap is part of it but there's also a separate part of it there is a step statutory re his interceptions which led to his indictment and so on but the arrests for instance were of mr bruno or were accomplished pursuant to after an indictment so it was an arrest warrant occasions so that's why i'm saying it's not just an arrest it's not just the search but searches were accomplished present a warrant and there were other people's homes we brief this in the district court we didn't brief it here because he didn't appeal it here it was only the issue of his bivins does it does he have an adequate alternative remedy and does he have standing so i what i'm suggesting is that some of this discussion that we're having and some of the discussion that came before hand all of that's been waived the district court so i guess your argument is that because the unlawful search and arrest that he is alleging stems from the wiretap that makes me really different is that what you're i'm just reading his complaint that's that's the theory of his complain that's that's if you look at paragraph fifty but four of the pacino wiretap applications none of this would have happened seventy one of his complaint the results are top application application that would give him standing to challenge that application he didn't do so he didn't make that kind of i wish and the reason i say no your honor is because and we pointed this out in our brief there is actually some discussion in the in that june twenty seventh two thousand and eleven application for them is a wiretap of those wars past cooperation so they're on the horns of a dilemma there they could that's what they would need to allege to get to get standing but they really can't because the wiretap application does talk about in the source past efforts and we pointed to that i think it's excerpts of supplemental excerpts of record five twenty three where that that a generous and they need not be perfectly congruity point one point to the wiretap act i mean counsel says well there wasn't ever any declaration from congress that to protect this and i look back at the in the senate report on the provision for civil damages and it says from the provision for civil damages the scope of the remedy is intended to be both comprehensive and exclusive but there's no attempt to preempt parallel state law this is the senate report from all one hundred sixty eight total three in the pas doing because if you think about it the words you're not district court find that there was hiding them remedy well there are others there are others as well but the most the one that's most on point is a wiretap act as far as i understand it provides for to arguments all stem from the pacino wiretap that's what you're saying right but but at some point it seems the arrest was illegal based on his allegations and that is the same to get rid of the just limit it so i agree but at the core though you're saying anytime there's a wiretap violation that results in lawful arrest no that's your alternative remedies but any alternative remedy and in this case you've got the wiretap act which sets out a civil provision for damages and is very precise about what can happen and in that case a bit is a remedy should not be implied per orders of the supreme court because there is a there's an alternate remedy that's the the rick nearest one apart from the hyde act apart from the criminal element is that's the one right on point though it just so i understand if there's any is there any other context in which you know legal search and seizure awful arrest would occur under a different statute we're bivins would still be in play i'm sure there would be your honor i don't really because it sounds like what you're issue was we went through the whole complicated procedural history in the district court for a reason this issue was raised in our first round of motion to dismiss that they had an alleged that they were intercepted of so you know they said what we'd like to them and our complain discovery on this they don't ask the district court for that and the final thing it's a little a little frustrating and i apologize in a way for making a request for just one of the so late but i look back at the criminal discovery and the underlying matter and everything thank your honor if i could clarify the issue of when an alternative remedy it is different comes about because the vinson it's following cases said if alternative remedy that congress said is equally effective then you then special or you examine whether special factors  require caution in it in extending bit of ins to a new context so that's how it the discussion of volves as to whether the case is similar to bivins or not in the special factors that's what ziegler was concerned about and they expanded that test by saying well even if an alternative remedy doesn't fit nicely within the first test in the second test you can consider it but it's just you can is free to consider various factors in determining whether to expand the evidence to a new con context that's how the special factors analysis comes into play so it's not simply asking me today whether i perceive differences ok so it's a test that just does not apply here with respect to what what is in the complaint and not the wiretap applications by the same defendants in the same manner matter and they were ordered to brief the issue whether the omissions were designed to mislead or made in reckless disregard and the court held the franks hearing and because the government didn't want to decision it is it has to dismiss the case but the fact is in this case arose because of what we knew about the applications based on judge wilson's findings