university and the founding director of the deportation clinic at northwestern is buffet institute for global studies stevens was awarded the guggenheim fellowship and recognition ever scholarship and her scholarship has focused on the unlawful deportation of united states citizens by the executive office of immigration review which is called a or in the papers stevens widely published work because of the events that gave rise to this litigation you're has been tracking professor stevens for years she has attracted the attention of the executive office of immigration review at the highest levels of the agency they were tracking her not because she was dangerous or because she was a threat or disruptive or any way they were tracking her because she had been a highly effective highly critical scholar and journalist and she had focused not just on agents but he but in particular upon the work of defendant judge cassidy and all that might be true but the issue before us is whether or not judge cassidy gets absolute judicial immunity just aren't so he does not and lies in the reasons he does not two main reasons that i'll explore in greater detail first he did not have jurisdiction he acted in the total absence of jurisdiction second his actions were not a judicial function with respect to the jurisdictional issue as you know the facts are in that if the government has admitted th you're briefing you had i think there been some argument that that this is not even a doctrine that's available to immigration judges and i gather that you're getting out of the standard you're pulling back a little from that argument you think conceptually there are certain instances where  immigration judge could receive absolute national immunity we would argue both i was going straight to the second one there even if you recognize that immigration judges as a class were eligible for absolute immunity that it should not be applied in this case i think there's strong arguments that they should not was there below an analysis of the butts in alice's where there is a comparison of the decision making function of an immigration judge with the decision making function under the administrative procedure act judges so for example did the court below note that the ministry to procedure act by statute requires its judges to be impartial and there is no such component part statutorily for immigration judges immigration judges have a collective bargaining agreement and can be terminated it will  other agency judges for good cause was that analysis done and no your honor we had argued as we continue to argue that the but case actually sets the framework for the argument that immigration judges should not be entitled as a class to absolute judicial munity because what that butts case is the best case goes through all the protect since that the a p a provides to a p a judges and then says for those judges who have those protections or are within a system where those protections attach we will allow them to have absolute tissue immunity and so if they don't have those protections that they're not an immigration judges do not they can't consult administrate of judges can consult with other agency officials about a matter which doesn't sound like this case so you know there was no determination comparatives i guess no there wasn't the assumption was that it's an executive department judicial officer there for about seven trolls there for their i mean that was the extent of it immigration judges and this is very important even if you even if you got over that initial hurdle that they would be as a class in title to it they would have a problem on the jurisdictional issue which actually covers both the nature of them as judges and also the extent of their jurisdiction if you wanted to accord them at least tentatively the possibility of having absolute immunity they don't have contempt  it separately in our request for declaratory relief that needs to be amplified in we need to have relief on that score but as to the damages claim the primary damages claim is the action of judge cassidy and having that federal protective service even if you accorded them generally judicial status they're interesting like they weren't even call judges until one thousand nine hundred six before that they were called special inquiry officers and i can remember when bankruptcy judges recall referees so i don't it was interesting the names the names are not certainly the names are not controlling it's their function it's their independence and it's whether they should be just as a matter of  board would restrict one was a similar type of case where they were judy caters but they didn't have the stripes in probably were called judges also but they didn't have really the stripes of the real authority to the strong medicine absolute immunity should be applied but let having judge carnes having focused what you what you're saying is it is not so it is now your position that under barrett that there is a qualified him to get this should be sent back for a qualified immunity analysis to see if the facts he's buried bear out liability yes our position and i think the law is clear is that if the defendant does not plead as an affirmative answer he didn't plead anything as an affirmative defense which is required under that case involving a judge we don't allegorize he judge calibration he didn't plead it is an affirmative defense and the lemon circuit pounded them on that and actually reversed the case and said this week judge should not let him go because he didn't plead it as an affirmative defense we raised that alone we were raised that here and we've never got an explanation from judge cassidy or the united states as to why they should be given  believe if you look at it the two worst cases for the public the best cases for the government are the supreme court cases of stuff works of sparkman immorality versus waco those would be the far edge of pushing  absolute judicial immunity and if you look at those cases both of the stop or start moves where the judge signed a horrible order that would sterilize the plaintiff's daughter he was immune from liability but the supreme court looked at that and said you know we're looking at the indiana statutes and the indiana statutes give that judge the authority to enter an order regarding sterilization they didn't just say he generally has that authority that specific authority here there is no statute that gives that gave cassidy anything remotely to the authority to even speak to the f b i s officers much less throw a citizen out of the federal building on spring street nothing on close to the finer stand your brief you  you believe can see that descriptor all district judges state judge court judges have inherent authority to have someone removed from a building and then think that's necessary might be wrong but decorum citee whatever the authority you argue that emigration judges don't have that same inherent authority because there is no statute and they have they can only do things that statutes tell them like and absolutely in fact congress has been very clear in this respect congress has legislated this issue situation and the immigration judges asked somebody to leave but it's spilling over into the hall there have been threats there is concern about witness intimidation is that juxtaposed to sit mute and security guards not there he's not go know what happened the judge supposed to just let that situation summer and do nothing just because there's a statute that doesn't give him a thought or a t to order security forces to do anything no your honor we're not talking about restraining the judge from doing what he needs to do with the issue is whether the judge should be given absolute immunity or the same kind of immunity as the police officer in your example or the police officer in the next case the atlanta police officer which is still robust immunity in which if he sued you can still have qualified immunity and here the position of the united states is judge cassidy did not in fact alert didn't even though there's other evidence didn't alert anybody because there was no security issue to be alerted about it was merely i'm sealing this case because it's appropriate and you need to step outside so so there was nothing of what judge carnes is understandably concerned about i think it would be important in the reversal to make make it clear that there will be circumstances in which article three judges or other properly immunize judges have the inherent authority to maintain the dignity and decorum of the courtroom but here number one this particular federal official doesn't have that of broad inherent force statutory contempt authority and number two this didn't happen this happened when his courtroom was quiet it was as quiet is this courtroom will be in an hour and that is conce in fact that is cassidy's story is that he left and nothing was happening the whole idea that he needed to do this to maintain the dignity and decorum of the courtroom is simply nonsense on stilts it's a fiction it never happened in in revers may please the court good morning your honors christopher hollis only half of federal defender napoli's this case base your honors is about a judge's control of his courtroom maintaining control of the courtroom and maintaining judicial independence over some fractious decisions that judges have to make including where was the fractious i don't even understand the beginning mr holland's where was a fractious date there was a request to leave the courtroom because it was being sealed i don't think anyone disagrees that a judge has that right but then then mr even was taken out by security out of the building how does that how does that in any way comport with either the authority of this judge or the circumstances is there related on this record your hon decisions go to the subject matter of immigration judges that they deal with daily and the need to maintain control of the courtroom when certain claims are made particularly before immigration judges with regard to say for example and the government's position is that because immigration judge casti had subject matter jurisdiction over that underlying case that that in which a conversation transpired between the stevens one somebody is being critical of the judge saying things that the judge doesn't like that judge says to the police i think this person is stalking me and swear out a complaint that is a function of the case to the judge goes before the media and says that gentleman is stalking me the court says no that's not really a judicial function how is barring the media different from saying something to the media in terms of getting immunity for judge castle your honor i think one of the stink one of the distinctions here is that professor stephens was not to respond in this case although that does not preclude subject matter jer's stiction for immigration just casti to to do something as drastic and the government doesn't admit this but we we assume an argument over purposes of discussion it allows for something as drastic as ordering removal from the building even though she was an order of respondent in that immigration hearing your honor but she also wasn't a security threat she wasn't so you're going to give in the immunity context and more room for the immigration judge to operate ben is actually even given an article three judge where your honor there is there's supreme court precedent that that a judge has control over the has the authority to exercise control over the courtroom and the courthouse premises your honor under certain circumstances protesters and in barrett it talks about the fact that that balance has to be made of the importance and the right in this case of a litigant to say you know critical things about the judge there can be no chilling effect of that in determining whether or not immunity applies or your honor whether misty was critic or not on the day that she was  removed from the court room excuse me from the court building the courthouse there's some confusion here because it's a federal building in the court house is located the courtroom is located in the federal building anyway the  day in question professor stephens was allowed to view immigration hearings before judge cassidy she would she was in the courtroom in the first place and that's when this conversation transpired so there's no question that she despite how her criticisms of judge cassidy there's no question that she was allowed to observe hearings on april nineteenth two thousand and ten your honor bright and then she was told to leave and then according to the record depending on who and this is a disputed issue of fact i would think either judge cassidy after he took a break and talked to other people which it seems is inappropriate under the a p a after he talked to other people she was ejected from the building so under barrett i think as to the first decision yes there is immunity as to the second i think it  is a qualified immunity question which has not been addressed you're honored to it is a tremendous hurdle for a plaintiff to overcome the pronouncements of the supreme court in stump that for example acting in excess of jurisdiction is not going to to bar immunity acting in error is not going to bar the application of judicial munity great procedural error is not going to bar malicious or corrupt of alleged malicious or corrupt corrupt intentions is not going to bar the application of judicial munity so regardless of what sort of allegations there are in the record regarding any animists just cast he may have had towards plaintiff stevens that's not going to those sorts of allegations are not going to bar the application of judicial minute the motivations but that you're not relevant so of stump because that's not the question the question is is it a judicial function to in this instance speak to the press in the case of bar no pun intended to bar the press is it seems to me it's the flip side of the same coin and the court here clearly states that's qualified immunity situation under all the law but but then getting back to what i had said earlier there was no analysis under the supreme court of whether or not the functions performed by the immigration judges comported with the a p a so no there was the stump did not directly address whether immigration judges are if it within the rubric of having judicial munity applied to them but in bus your honor the supreme court found that federal officials who perform a juda could do to get tory functions are entitled to judicial miti and the butts court didn't didn't make carve outs for those who aren't able js you know they left it to the courts and in the courts took it up and said parole officials know and since judges in state system are treated the same in the federal system school board officials know there have been cases that have taken butts and examined it but i just don't think it happened here and i don't think i don't know how you get around barrett in terms of the second act the barring from the building your honor then the fact closure in fact by playing us on pleadings in our first minute complaint paragraphs forty six through fifty three we see that it was less than twenty minutes space between the time that miscast he had a discussion with judge cast in the time that she was removed from the building so the mammy herald came in two of my courtroom and i had to seal it because and by the way i don't get to seal because people say i'd like this to be private i have to make findings and it has to be according to the law and not the party's desire but if i say this is a sealed proceeding and mr weaver you need to step outside so your argument is i can then call the marshals and say and take him out of the building your honor because it's all part of the same litigation it's all part of the same with the geisha agreed your honor right but the distinction here is that to to to to take two to argue that there was absolutely no disturbance involved here or that there wasn't any sort of history  of of i'll call it aggression from the stevens is to overlook other record testimony of instances where courtroom administrators name defendants had encountered plaintiff so so i reckon i can take into account their characterization of her ranting and raving is agreed as aggression but i can't take into account the fact that officials had been tracking her for a few months and stephens is that to get to the extent that misty evens wants to view hearings there's an argument to be made that she was accommodated to to view those hearing she was allowed to view hearings your honor that this isn't a series of nothing but your point about asking why you're here what you are telling her maybe she can't be here and then getting that squared away you are there merits hearings in front of immigration judges involve very delicate issues for the immigrant respondents that are in front regulations are unchallenged and this is a big part of of of appellants case that's that's missing here these regulations that allow immigration judges discretion to close immigration hearings for the protection of witnesses for the protection of parties for the protection of the public interest or just in the judge's discretion that's not that's not addressed by appellants here that it's not challenge the regs not challenge the regulations that challenge by a have a little difficulty following some the arguments let me  your position briefly state number one the judge is a judge because of his adjudicatory functions he is a federal judge yes your honor therefore he gets the judicial immunity that federal judges get and that the decision of a judge to direct someone to to be to leave the courthouse or for someone to lead someone al the courthouse is within the range of judgments that a federal judge can make yes that's attached to it may be a terrible judgment it could be a very bad judgment but it is still a judgment within the range of what they can make your honor to the stand the judicial munity applies to judge cassidy even if judge cassidy in layman's terms screwed up judicial munity would would shield him from damages claims and from  there is a form of review under the executive office for immigration reviews administrative procedure to make due to complain about immigration judges and that that was taken up here by right and in and it so there's no per se judicial review in the review taken up here involve the office of legislative affairs which i thought was an interesting gloss on  and did not involve interviewing the complainant or an eye witness to the events in the courtroom your honor the review taken up here was by the office of the chief immigration judge and that's  general delegated office to review immigration judge complaints there is nothing in the administration procedure for viewing complaints against immigration judges that requires  someone in defendant's miss position the investigating immigration judge to to interview the claimant there's nothing requiring him to have interviewed misty and your honor so the redress could be anything but and fulfilled the but requirement i don't know that redress could be anything your honor but here we have a formalized system within the agency at issue for reviewing complaints against immigration judges and that's that's what occurred here your honor their judicial independence and in order to foster courtroom control which is something that that all judges must have in order to maintain the system thank you the procedural the sort of the administrative remedy that's offered by your as she held as a matter of law conferred no substantive or procedural rights upon  and so she and that is why we lost our bivins action against the officers who and we did it we have an appeal that ruling but we we also sued the officials who conducted that review and even though that judgment said that those officials were not entitled to immunity that our underlying claim didn't state a claim for relief because that the remedy that the police just described gave the gave the petitioner nothing and so there is no remedy going back to the bet's test there is no remedy for a citizen like judge cassidy what is worse about if i don't i don't understand mr brown  we're still listening and thinking but i mean i don't know that a litigant has a lot of powers rights are even gets a remedy in the trans i would think of a remedy from pursuing the article three process but is thought to be a real process you don't want to have to go and talk to the chief judge and you don't want to have to have a nasty letter written to you and you don't want to have a nasty letter written and put up in the courthouse so how i'm not sure that i understand how it inherently an adequate it is to have a comply may up the chain i mean that you can do other or the federal common law that that we establish that there's absolutely no other possible remedy however meager that's not our burden to show instead our burden is to show that under the case law believe is that is this type of federal official and it's a federal official we can call him a judge you're not entitled to what judge posner and justice o'connor called the strong medicine of absolute immunity and why is that strong medicine strong medicine because it's very rigid and under the court's holding in bowling versus story it even applies to injunctive relief so to hold that judge cassidy has absolute immunity generally and then specifically for this action what the federal courts are saying is that they are powerless article three judges are powerless to address what is going on down there because those special inquiry officers are beyond our reach because although we a stablished in marbury versus madison they're right for injunctive relief for a federal claim and we've established in bits in the one nine hundred seventy s damages that because they call themselves judges now that they are beyond the reach of a federal court when they are plainly violating a citizen's first member rights that cannot be the result now the ways around that are many you could hold it as a class they don't have immunity which is certainly defensible under but or you could say even if they do here have admitted they don't have specific jurisdiction over the federal protective service that they ordered and they don't have any sort of inherent authority and that's established by the we don't have any jurisdiction you can run the federal courts on time i don't think we have any federal jurisdiction over the u s marshal service either i mean i was chief judge of the circuit and i worked with the marshal service right on people like each and every one i'm not boss so if i tell them take somebody on the courtroom here and this assume that i would be entirely just not sure they might do it and they might not because i'm not their boss so i don't know i mean part of what are you telling me about he's not their balls i mean he told alyssa soon he told them to do it then they might do it or they might not if they did do it then sure he's he's still involved i'm not trying to get him free but i didn't know what that means we're not relying on it i think your point is exactly right we are not relying exclusively on the fact that the federal protective service officers don't rip aren't in there the chief and the chain of command to judge cassidy were also but we are relying on the testimony of summers who's who is the head of the f b i s down there that says cas jurisdiction and we're also relying on the testimony of a lawyer read lauren reid who is a who is a lawyer for the if for saying that he has no jurisdiction over that building you're not even that that's not even a  or building they've got the justice department down there your honor they've got that department of homeland security in one floor rbs well here and you know there are buildings you know there are plenty of buildings in the united states where the federal court is eight eight eight one tent rosabelle yeah right and this is a different case but we're just we're talking you know and i don't have any problem with an article three judge over in the russell building under certain circumstances saying get this guy take him to the elevator take downstairs walk him down the side wall and tell him if he steps back on the sidewalk he's coming right up to see me face to face i'm pretty sure that's not you're not only immune from that judge why can't he do it there's two ways there's there's two ways to to address that and we will win either way your honor one of the reasons why we have stressed in our briefing and in the in the discussion the authority we believe that it is a very important point that your honor and judge carnes and judge williams when they're on the district court had and now have an air of authority and the cases say backed up with what congress has said which is very congress on this is very specific with the u s magistrates the congress has said u s magistrate you have contempt authority for people in your presence even could not do this my point in that is that is is not to put too much of a fine line on the jurisdictional borders but just that if you look at the supreme court cases in stop and immorality first waco the supreme court looks right to the statute gave those state court judges the authority for doing in general what they were doing not the specific bad act but in general the type of activity and they found it and if they hadn't found it they would have given that judge immunity for those actions here if the court went through the same inquiry and said ok what in general was was cassady working under he had he has he has no authority over the building is no authority under the f p s he has no authority for contempt except for monetary sanctions he has given he under the law he has no inherent authority it's an article it's not an article three judge with any sort of sort of general or state court judge with general jurisdiction what you would be saying is we find no absolutely no basis for this judge's jurisdiction number one and number two there is to get to your argument get your statement about about judge williams about a judicial decision you cannot say with a straight face due respect that tossing a professor from a federal court building is a judicial function or was then involved in the judical jury process now the argument that the government makes is that this all stemmed from was related court case sort of like cheese food product is like cheese because it's made near a factory that makes cheese but if you're honest it is not anything to and the supreme court rejected the same argument in the i think our best case which is forced or versus officer because the operation of the probation officer was in extra complete intolerance and with the judge's work as a judge seven circuit said therefore since it's an extract plea in twined you've got absolute immunity decision it's whether it really was a judicial decision here this is nothing adjudicatory about throwing somebody out of the federal building it's the same action that a policeman would take and send title to the same no less no more immunity thank you thank you mr brown we are going to take a