united states court of appeals for the six circuit is now in session all persons have in business before this honorable court drawn near give attention and you shall be heard god save the united states in this honorable court please be seated is the court that afternoon ours in carlson be green the supreme court held that a prisoner can bring a claim for damages against federal prison officials to enforce the eighth amendment the court reached that holding notwithstanding the availability of an alternative remedy under the federal tort claims act as three other circuits have correctly recognized there is no basis for a different result under the inmate accident compensation act i'd like to begin with the question of deterrence and deterrence w central to the supreme court's holding and carlson and it remains central to the bivins inquiry under more recent precedents the the court has repeatedly reiterated that the purpose of the claim is quote to deter individual federal officers from committing constitutional violations the courts also repeatedly stated that it's quote axiomatic that the threat of money damages is insufficient that the threat of money damages has that deterrent effect but the i c c a does nothing to deter violations of the eighth amendment the threat of suit against the united states does nothing to deter the unconstitutional acts of individual officers but you do have the ministry of process that can be pursued under the i see a we're i suppose conduct of prison officials could be exposed to some extent perhaps later on some sort of injunctive relief right so a couple points but they're not that your honor so first of all the supreme court itself has looked at those exact issues in the mccarthy madigan case and said that that injunctive process is not an equally effective substitute for a damages remedy so the u s supreme court has also looked at that that you can set it exclusive out even though that's an express statutory claim and it gets knocked out by the exclusivity of the i ca and yet the implied constitutional claim stands that's just bizarre well i don't so i think when you compare the i a c a and the f t c a which was what the court was doing and them go actually don't think it's bizarre at all because the the whole purpose of the f t c a is to go after negligence towards accidents of mishaps sort of common common common negligence for lack of a better term and so you had the i c a which is also sounding very much in that type of tort and so i think all the court was holding in dempo was that when you have a general negligence remedy and a more specific negligence remedy we're going to follow the more specific one but the reality that in stanley the court says the times you can't bring in f t c a claim are the same as the times you can't bring in bivins clean so that's what they say in stanley and so it seems pretty hillary approach to this case that would be it right so i do think but i think when especially looking at sort of is the sec as the seventh circuit emphasized i'm a goal i do think there's an apples and oranges approach to the whole theory it's just the whole theory of bevan's claim is just a legal part from what's happening in one of these garden variety negligence torts it's deliberate indifference it is knowing that the prisoner has a serious medical need but yet doing nothing to resolve that need  and so whereas whereas the i c a may be able to displace a common point of all workers compensation systems is it's exclusive so under what you're proposing you could get your relief through the worker's compensation system you get whatever it is instead of the quo that you get with a quid pro quo that being it for the employer you're saying you now can see more damages for the constitutional claim not that the feeds the whole point of  worker's compensation system right so a couple points on that your honor so i think so workers compensation system is very at both the state and federal level but in a lot of workers compensation systems there are exceptions for intentional torts so i think even under the federal system some courts have held that if you're going after a co employee you can still bring a begins claim against that co employee for an intentional tort despite the exempt goes been overruled in terms of saying to exclusively that this statute is exclusive we may be right that there are different workers compensation statutes but we have denver co right and dempo would for close an attempt by mr prout to bring an f t c a claim arising out of his work accident or his his medical care following that work accident but again i think it's just apples and oranges to get to the bins claim and again i think the seventh circuit held just a few months ago that even in the context of that a big claim was available against a coworker despite the existence of the remedy for work related torts i mean that's the same seven circuit that you're relying on interpretation of carlson right right and i don't think that's at all inconsistent with carlson where no no i'm saying it's not surprising that the help will serve it to you i mean yeah yeah yeah fair enough by that but tell me this with what you know one thing that's funny to me i mean we would all agree that the courts approach to implied rights of actions whether statutory constitutional is different today than it was now we're still stuck with holdings in carlson but one part of carlson which is the part of the justice palin justice stewart didn't agree with that's why they concurred in the judgment was this language that congress has to show in order to defeat says congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery directly into the constitution and that language seems to have dismissed fallen out of the court's cases i realize they still respect the cross in holding i don't think the government's challenging that holding but that that's a presumption shifting that's presumption shifting language and so i soon you don't think we're bound by that language anymore because i haven't seen it used in any of the extensively for the proposition that the test has changed says that it was following a familiar sequence and so i think i think it's helpful to look at the most recent eighth amendment bivins case which is minette she which is very helpful that's two thousand and twelve and the court ultimately did not allow a binns claim against private officials working at federal prisons but critically the court was looking at deterrence and compensation and the court said is the alternative state law going to provide roughly similar incentive to to comply with the eighth amendment and is there going to be quote roughly similar compensation and the court ultimately concluded that that state law remedy was as good or better than the bevins remedy but i think what the court was doing in that she is not all that different from what the court was doing  right so bush i think is is the most straightforward one because i think in that case in the employee grievance process there was absent there was actually a way to raise your first amendment challenges so i think bush provided an explicit forum to raise the constitutional  i think the reason that case is so different is because the problem of people's benefits being terminated early congress was absolutely one hundred percent aware of that problem and was legislating along the way and i think the court used the words frequent and intense congressional intent intention attention excuse me and so unlike this case where we have this one sentence statute that was enacted in one nine hundred thirty and amended in one thousand nine hundred sixty in schweiker you had a situation where congress was sort of actually working on this problem in real time and so i think the court was not inclined to overrule that by adding a big remedy on top of what what congress was doing and if i can quickly sort of seventh circuit case that is really the key court of appeals case we're dealing with because the others who seem to follow the reason the rule not nearly as thoughtful the seventh circuit case does seem to rely on this presumption language from carlson because it's a one thousand nine hundred case i mean the the world hadn't changed as much as it has by now so why isn't that reason enough for us  mean i don't see any chance that the u s supreme court affirms that decision based on its reasoning i mean it's using language that they are conspicuously not using right so i would say regardless of sort of regardless of how  think the language you're referring to would apply only to sort of the text based argument so you know whether congress needs to explicitly for close at work versus explicitly allow it but i do think they seem to that they got their explicitness one way or the other from legislative history so it seems to be less of history or tax th are right but one way or another the court still has to do an inquiry into is this an effective adequate remedy and i think for other reasons we go through in our brief i think both substantively and procedurally the i a c is not even in the ballpark of  the injuries are not covered what injuries that your client is complaining about are not covered by the cia i thought they were all covered well i mean he's saying i mean he according to his complaint he was in agonizing pain for years because he never received the medical treatment that he should have gotten and he won't recover for that under under the i c a and i think i thought the eye seeing the regs in our cases made it clear that you recover for everything including  injuries caused by negligent treatment after the original injury i thought that was pretty clear right so so i think you're just making them up the amount of money he's going to get is that the point you're making well it's the amount of money but i don't i don't think there's any to the extent he could show a physical disability that was aggravated by the medical mel medical malpractise or medical negligence i think that might be recoverable under the ice but he would recover nothing independently for the pain and suffering that he endured for several years if he did i'm sorry now i don't wan think so so that's a really important point because i think what the point so it's very well established that negligence alone sort of simple negligence simple medical malpractise does not constitute a defense claim so i think that shows a couple things first of all it shows that the sky won't fall as the police claim if this court recognizes this claim because in the vast majority of work related accidents you're not going to have anything that even comes close to the level of a bevan's claim so that shows that we're actually talking about a pretty narrow slice of cases but  so there is either a list or could be injury that is above and beyond that caused by negligence of prison officials that's the core of the bivins claim that someone was aware of a serious medical risk or a serious medical need and disregarded that despite that knowledge which is a very hard standard to meet and now i think the other part of your question but that but there's a tradeoff right i mean he also can recover for a quote bivins claim that would fail because it's no fault right i mean so you can have the injury you could recover and the i c a in a claim that would never see the light of day under bivins because of qualified immunity or whatever it i mean that's that's why it's exclusive that's the whole point of the trade off you win when you shouldn't enjoy you don't get some things when you should but that's why it's a trade off for both sides each side getting something in the abstract even though there were individuals like your client for whom it's a loss as to them for every client like that there's one who's getting something that they wouldn't get into bins or anything that required say fault right although i think that question just underscores that all begins is going to be a sort of the emergency backstop in an extremely agreed just case where there's something looking like intentional violations or an emergency backstop in the other direction can the government ever come in and say well we're not giving to you you were just stupid that was all your fault there's no exception in that direction that's the point  tough at the extremes for both sides of the bargain right although i think so in trying to sort of harmonize the supreme court's cases i think one thing that does come through is that the eighth amendment is one of the very few provisions where the court has allowed this and i think there's a really good reason for that which is if someone in ordinary civilian life isn't happy with their medical care they can walk down the street and go to a different doctor or go to a different hospital but for someone in prison that these lawsuits are often the only means they have to vindicate their rights and the court has used this term that lawsuits for prisoners are preservative of many other rights and so i think i agree with you that in a normal worker's compensation scheme that backstop might be necessary but for individuals who have been incarcerated and who lose a lot of their political and civil rights i think this is a very important backstop i'm just here to work what is your client still in jail prison he's out and i think one one no that's interesting we have this in our reply brief so he i think was just sort of underscores the flaws of the i c a of course argument doesn't depend on this but he actually he filed his timely he filed a timely i c a request before being released and he alleges and a declaration i think it's docket one zero seven that the prison simply never gave him the physical that was required which is needed to process it so i think even in this very case i think his situation sort of shows why this is not actually an effective remedy ok we will give you your full rebuttal time  good afternoon good afternoon  the i c a was a comprehensive remedial scheme to address injuries and that courts should not recognize exceptions to that scheme absent specific legislation to that effect if congress is intent to make the  exclusive was so strong as to preclude a later an act and remedy created by congress necessarily follows that the precludes a judicially created damages remedied the dominant theme of the last thirty five years of has been that work congress has acted courts must defer and as this court said in jones v t v a and downey vs city of middleburg the relevant question in the relevant inquiry is whether congress has created a comprehensive ministry of scheme that governs the area involved dam co answers that precise question as this court has already recognized in three un published decisions because the ice is a comprehensive administrative scheme that governs the area involved a what do you say to its point about the turns i think deterrence is a rationale that's been cited for the bivins remedy but i think to fully appreciate how this supreme court approach is deterrence i think you have to look at the actual reasoning and the facts  holdings of its cases so if you look at cases like bush and schweiker the court was very clear in those cases that it assumed that the alternative remedy that was available was not as effective either in terms of deterrence or in terms of compensation as a defense remedy nonetheless held that those remedies were adequate to preclude a given from eddie i also just want to mention   i think this case actually very aptly demonstrates how those remedies provide inmates an opportunity to bring their grievances before a court and bring any wrongdoing to light in this case mr kraus actually did pursue administrative remedies and also sought injunctive relief in the district court the district court actually ruled on the merits of his request for injunctive relief not not based on the  existence of existence of a bill in germany but actually ruled on the likelihood of success on those claims on the merits and the district court decided that the evidence did not support which prisoners feel that they are being deprived of some medical procedure to which they are constitutionally entitled you know agree that the ministry of procedure which may at some point much greater degree in the unconstitutional conduct by prison officials well i don't see why these remedies would be inadequate to expose unconstitutional conduct but specifically with regard to your points about punitive damages a jury child availability of a no fault workers compensation scheme for federal employees that is very much like the i c a in both of those cases because those are no fault schemes there was no opportunity for the plaintiffs in those cases to raise their first that there already is a circuit split again the circuit has already issued three unpublished unpublished so they're not precedents absolute that's correct as we couldn't overrule our own circuit have they were published right that's correct but in terms of  got wrong i think the most important thing that failed to take into account is the supreme court's decision and dan co which again established that the i c is a comprehensive remedial scheme to address injuries and that court remedy i would dispute that there is a categorical difference between those types of remedies at least for purposes of the of the bivins analysis i would point out that the plaintiff in this case has not identified a single instance in which courts have held th statutory scheme precludes an f t c a remedy but not a big deal and as far as i'm aware in every single case those answers have gone hand in hand so that is the case for example for the federal employees compensation act the postal reorganization act the civil service reform act administrative procedures act and i'm sure there are more examples of which i'm not aware so i guess i would say that there's not a categorical difference between those two that the relevant question is not whether congress has specifically declared its attempt to preclude a constitutional damages remedy the question is the comprehensiveness of the remedial scheme again the language that this court has used is that the inquiry is limited to whether congress has enacted a comprehensive administrative scheme governing the area involved and that's something that that's a question that's independent of whether the particular remedy at issue is for torts or constitutional to carlson said that it was crystal clear in the supreme court's words it was crystal clear that congress intended the f t c a and bivins to be complimentary remedies and it drew support from the legislature legislative history of the statute so that is very different from this case and in fact the various factors regarding you know the existence of jury trials and punitive damages and so forth those factors were all cited in support of the court's conclusion about legislative intent and there's no indication that those were intended to be freestanding factors i also just want to i guess just one more point i mean the the f t c a is a broad statutory remedy the i a c a is a very specific scheme that was enacted to address injuries in a particular field and it drew on a model of workers compensation statutes for which there is ample precedent for further exclusivity so congress are certainly drawing on this edition so that is another significant difference with a little bit of what about mr harris is point that even in workers comp schemes are often exceptions for intentional towards and workers comp schemes do not bar a claim by a plaintiff that there was a claim of an intentional or yes so i have a couple responses to that first of all i don't think that the claims that are actually before this court so those are the claims are relating to his medical treatment as opposed to  a deliberate indifference claim is something akin to recklessness it is not an intentional tort and i would also point out that under kentucky workers compensation law for example the the i guess the intentional tor exception requires not just some knowledge of the risk of harm but actually a deliberate intent to injure the employee and under at least under kentucky workers compensation law that is the only time when that compensation when that will i'm not aware of a specific intentional tor exception to the i c a but again i don't think that's the issue in this case i think it is very clear from this court's holding and working that the i c does extend both to the work related injury and  to medical treatment after the fact and that's comparable to other statutes such as the federal employees compensation act we cited a case in our priest called mccall in which there was a civilian employee who was employed at a military base who was injured and then actually received medical treatment at the military hospital there so the holding in that case was that the f fico was her exclusive remedy not only for the original injuries she suffered but also for the negligent treatment she suffered at the military for the leg of her medical malpractise but what about intentional i mean this deliberate indifference again i would strongly dispute that this is an intentional tor i think the claims at least in this case just seem to be a sort of medical malpractise with an elevated in the under different rule for the next case if there's evidence it's an intentional toward no i'm not saying that i just i'm just trying to sort of flag you know an that issue is the d c circuit and as i mentioned actually in two cases richmond be potter in briscoe v potter the supreme court held that the f e c does preemptive in its claims and i would argue that sure i understood you saying the u s supreme court said saying saying something to the effect that the alternative remedy must be broadly similar in effect and i certainly don't think that is controlling here and i think the best explanation for that language is that the remedies that were at issue in vs pollard were state law remedies so the separation of powers concerns that have been the primary driving force behind the supreme court's  forth i guess one more point on her reach a licky my brother said that that was a case in which congress had paid extensive attention to the potential due process problems and that is certainly something that was cited by the supreme court but i would i would also direct this court to its decision and guyse g e s s e and that was a very similar case to schweiker that came up in the six circuit that involved the medicare act and there was no similar discussion of  dempo doesn't control because all dempo held is that the i a c a displaces a regime of common law torts sounding in negligence so that's an apples to apples comparison and i think all the court was getting at was that the specific controls the general and when you have these two comparable negligence accident based regimes the court said we're going to go with the i c a but i ca to bivins is and as the seventh circuit held them a goal is an apples to oranges comparison that they're just they're different remedies that unless with the caveat up here then on the other side made it sound like there was some other cases where it's f t c a versus some other statute and i'm just asking whether where the f t c was displaced as it was in dan cohen just saying or any of those ones where the u s supreme court note about minette she so the my friend the other side said that mean that she was limited to this context of state law remedies but unquestionably the court in that she was applying wilkie and was applying schweiker and i think front and center in that opinion is a discussion of deterren and compensation and so i think that she is very helpful on both points and i just i just close by saying what what we're asking here is actually pretty narrow in the big scheme of things so since carlson the whole manner of prison torts have all then have all been susceptible to bivins claims if there is a tort followed by a deliberate indifference to the inmates medical needs so that would happen if someone is injured on the basketball court if someone gets in a fight with another prisoner if someone's injured through an accident in the cafeteria all we're saying is that in the universe of prison torts that we're allowed to bring the small slice that will arise out of work related accidents and to address special factors for a second i think there the other side both ways doesn't i'm sorry a point cuts both ways if it's a small group it's a small group you're not doing as much harm but there are also means there's not that many victims kind of cuts both ways i guess i would say well but again which i think goes to the point about why the eighth amendment is needed as a and i think special factors so the other side claims that this might lead to problems with security problems with recruiting employees it might deter work programs but i think when you look at the circuits in which the circuits that have recognized these claims for a combined forty three years they don't point to anything concrete saying that the ninth circuit is unable to recruit prison guards or isn't using work programs and that's because of qualified immunity and so the supreme court said in carlson that qualified immunity is an quote adequate protection against merit list claims and so in decisions such as i see my time's up today you may finish so when you look at decisions such as full our ski and the supreme court's recent writings on qualified immunity the court is addressing the exact issues that the apple e's are raising in their special factors analysis and the whole purpose of qualified immunity is to ensure that those concerns don't come to pass so if there are no further questions we encourage this court to follow the three other circuits and reverse ok thank you mr harris and certainly speaking for myself i'd like to thank both of you today for an excellent briefing for you know very very strong arguments that certainly helps the court as we consider what is a very interesting challenging matter harris we want to thank you for taking this case and your firm as i understand it on a pro bono basis that's obviously of great benefit to this across the but also to the system at large so thanks to both of you and we appreciate your argument today