volunteer lawyers for about a thousand of those people have now started another round of putting another two thousand through hearings of the seven hundred who lost their benefits take that back suzy of the seven hundred who kept their benefits two of those were the estates of now the lately roy burchett and the late melissa jude the way the defendants have for trade this case is that somehow we are seeking damages because we were wrongfully denied benefits in terms of the two estates i represent that's not what we're saying at all what we're saying here is that the acts are so scary ministration foreseeable ian predictably caused the deaths the suicide deaths of these two people is that of the federal tort claims act or is under something the federal tort claims act or on it we had other claims as well but your best case to show we would and what i want to focus on is why i went through a little bit of akron ology is our claim is based on the fourteen days in world a weekend of may two thousand and fifteen just before the show security ministration sent out nine hundred surprise suspension of benefits letter well it's very bad but i just want to know what kind of a case we've got a rubbish circuit or other circuits to show you can find relief here the under the federal tort claims act and i'm in the side schweikert be handsome case he said you can hold an agency responsible if you can show affirmative misconduct against the government case you are you're not arguing a stop against the government are you were arguing they committed affirmative misconduct and you are using a stop against the government collateral is for the government said something and they're not doing what they said that's a case they got up with they said you were entitled to benefits and the typical collateral estoppel case the source curium the officer says you're entitled to benefits and they go out and buy a house or whatever and then it turns out that the government says you're not entitled and they say well you're stopped because you told me and then they have a permanent misconduct that's the kind of case that's not this that's not what you're arguing in this case is it or is it a case is the closest i could find to these very well i doctrines that are relevant to your cause of action sure the reason i started to have some case that talks about at what point can a federal agency do something to make themselves liable under the federal tort claims it we alleged affirmative misconduct and we took that phrase out of that case and i realize that the facts and the issues we are not claiming damages because we were wrongfully denied benefits in fact my clients went through although i'm not claiming correct me if i'm wrong not damages because you were misled correct what were they doing and that permanent misconduct deals with whether you can recover or being misled and you can only do it possibly in the case of a permanent misconduct but since you know arguing that i'm having trouble seeing my the exception of lesion for something you're not arguing well let me argue where we're coming from i think there's three instances with so security ministration did things individually and collectively that make them liable under the federal tort claims act the three things are one under the statute that says they have the right to put these people through redetermination hearings it says they must do an individual assessment of an obligation under the social security act yes or so in their regulations we cited it to the district court we played it is never discussed any individual assessment have let security act the second thing they did was they said these nine hundred people letter saying you got benefits typically nine ten years ago you have ten days to send this medical documentation that's negligence claim with one wheel well we we allege affirmative misconduct and negligence and so it's another nit so it's basically their negligence or violation of the statute they should knew or should have known as to two of your own it's important to remember during this fourteen day period these letters one out and not surprisingly half of the this we called the mission impossible getting medical records from ten years went by forseeable on the eleventh twelfth day we had the two suicide didn't the letters say they could ask for more time they did it is your honor but to these type of people with these type of problems to take away their benefits even the promise you have more time their benefits are cut off leroy burchett immediately for an economic reason stop taking it anti depression so the benefits were going to be cut off after the ten day period regardless or they were cut off immediately or often mediately when the letter was sent out correct the letters are dated i believe may eighteenth two thousand and fifteen the letter said your benefits are cut off now and that's the issue and but for the intervention of congressman rogers the only good thing that my vulnerable clients had in their favor was congressman rogers not an ordinary congressman probably the most influential member and he intervened he said what they did was un american he said if you don't really say the benefits and put these people through hearings he said of worse to the effect it's a matter of life and death but for congressman rogers intervening i don't know how many more suicides we would have the letter said your benefits are cut off now yes you can submit more evidence but what do they do in the meantime so but for a cut this one went on for fourteen days of policy they enacted a policy that working daters later they reversed a charge edge regardless of one's sympathy for these people which i have very great sympathy for why is this not covered by the discretionary function exemption under the federal tort claims act it's not covered by this treasury function first of all the immediately says shall the ten day rule they just made that up and you of people who they knew they had suicidal problems it really goes back to the issue that no one i've never been able to get the district court to address and my opponent said we didn't address it but we did there's a regulation and says they have to do an individual assessment these nine hundred letters are all the same except for the name weren't the letters in the sense setting up the individual assessments by saying to the people present evidence that you do deserve benefits and we will consider that evidence on an individual basis that really goes to the appropriateness of the hearings later on or issue was a surprise suspension of benefits when under the statute they had a right to send those letter if they had done it immediately upon notice of fraud or with what that statute says that occurred long before that letter said absolutely or five years so they got why did they wait to two thousand and fifteen and you have to start issuing factum to sound like hyperbole the reason they didn't actually or was that judge andrews who was in charge of d s s often huntington engage in a criminal conspiracy to cover it up that's not rhetoric those are the factual basis of his guilty plea before judge reeves so basically they did not act immediately because judge andrew conspired with mr khan to do a criminal cover up please the court thomas pulling for the acting commissioner the district courts conclusion that lack jurisdiction over the plaintiff's claims is correct for two independent reasons first the f t c is discretionary function exception bars the plaintiff's challenge to the manner in which a state carried out to be determinations of their entitlement to benefits second section four or five each of the social security act forbids a district court from exercising jurisdiction under the f t c over claims that arise under the social security act i'll start with the discretionary function exception i think one thing that has been missing from the plaintiff's argument here is any argument as to how the district court's judgment and analysis was wrong the district court was correct that the discretionary function test involves two elements first whether there is an element of judgment or choice in the challenge to action and second whether that action was susceptible to policy analysis the district court correctly answer both questions heard and is focusing on the language dress that i'd be happy to address that the provision says that they're kind of to interlocking provisions here the first says that the inspector general of the social security administration must  provide information to the agency as soon as it has reason to believe that fraud was involved in the application for benefits the second provision says that the commissioner shall immediately redetermine entitlement to benefits if there is reason to believe that the fraud was involved in the way these provisions are structured it employs what this court in myers referred to as an if then structure the duty arises only after an assessment is made with respect to the antecedent condition so here but why g had to determine whether there was reason to believe that fraud was involved in benefits in order to do that he had to undertake an investigation so the district court was correct that there is an element of discretion baked into this provision what myers described as this if then structure presents with a choice did the condition obtain or did it not so if the condition had obtained then there would be a discretionary duty that's correct and so when oyaji issued the referral which it shoot a referral that permitted s s a to move forward in two thousand and fifteen it we've provided you with the names of the affected beneficiaries and the reasons giving the basis for its reason to believe that fraud existed and it said there have been there are no objections to moving forward  the statute says that terminations won't proceed if a prosecutor objects to doing so if it will interfere with a criminal prosecution so that was another step that he had to undertake was to verify that with prosecutors so in two thousand and fifteen zero i g says here's the information here's the basis for it and there's no objection to proceeding within a week of that notice which was dated may twelfth notices so i think that is it immediately is there something that requires that the benefits be terminated immediately when that preserved the plaintiffs offered no argument with respect to the just a court's analysis of this issue but nevertheless when we look to what they argued in district court and what my fellow council has  indicated here he said there was no provision that allowed this but that gets matters exactly backwards as this court has recognized in cases like rose bush and cole in the supreme court recognized in where there is no provision that no law or regulation that mandates a course of action in the absence of such a rule there is discretion so will this this applies to both the ten days and the suspension so there was no provision that said benefits can't be suspended in fact the house of the can and there is no provision that governs the amount of time that will apply and in fact the house that that something that will be determined in a for each for each case and those determinations involved not only do they involve an element of choice or judgment but they are susceptible to policy  of balancing all that together they can look at what steps they think will be appropriate here just so that i understand there is no regulation or other source of law that said r just to be clear on the types of this program that's at issue here these were disability insurance benefits under title two of the act those are not need based benefits  for need based benefits there must be a hearing held before the payment of benefits is interrupted that's required by the supreme court's decision in goldberg b kelly but for title two benefits the supreme court said in matthew  whatever yes that is my understanding i believe they were but if they're if they're disabled and you say it's not need based it certainly is quite possible that many of them are in fact in need of their the social security act the supreme court in selfie said that a claim arises under the act if the act provides the standing and substantive basis for the claim the supreme court later described this as a broad construction of the provision here plaintiffs in their complaint say that they seek damages for the humiliation pain and suffering caused by the suspension about if it's they claim negligence in carrying out a process required by statute  to protect the integrity of the social security system and their negligence claim is based in significant part if not entirely on an assertion that s s a violated its statute all of these lead to the conclusion that these claims arise under the act and i think that claim is also compare erm sorry that conclusion is compelled by this court's decision in livingston which involved a nursing status so its status under the act wasn't at issue what the nursing home operator saw or consequential damages from the terminations so income that it lost out on similarly here the plaintiffs seek similar consequential damages caused by what they claim is negligence in the execution of social security administration ministration statute this is also consistent with the congressional design as the supreme court noted in chile when it considered whether a business remedy would be available to people who were harmed who claimed harm from constitutional wrongs during administrations of benefits programs congress or the supreme court said that congress provided safeguards to protect the rights of beneficiaries but didn't provide damages remedy that same logic as the four circuit recognized and barrett is here this would give plaintiffs remedy that congress did not provide in a carefully structured statute governing the benefits program so these are two independent reasons that you say that  those people were all claiming we didn't get the benefits we were entitled to that was their core allegation that's not what we're saying of this case we're saying so security ministration was negligent or more th taking away the surprise or is taking away benefits when no statute authorize a redo that imposing a ten day mission impossible that they just made up  important the so scary ministration had already agency had decided to come up with a plan to cause widespread panic and fear and this is it they preyed on population made up a ten day rule this happened this is negligence is it forseeable that you send out a surprise notice to psychologically vulnerable people who in your own records indicate they've got a history of suicide problems is of perceivable they're going to kill themselves we have to right after the ten days expired but for congressman rogers how many at what point is there a line that the government can't cross and i think given the astonishing facts of this case when john grisham can never imagine these facts but that's what we're left with and they say some have as a discretionary i mean i take a harder view of that at this point con have not been indicted they've been national publicity sixty minutes wall street journal senator coburn have said well the clients must have been involved influential member of congress there's zero evidence any client was involved doing everything he hasn't been indicted so let's go after these people and but for congressman rogers how many more suicide would we have had is it your position there's a cause of action way back when it first came out that there was a fraud in law or they should have done it right then it should have said notice to your client what they should have done right then should've sent notice don't suspend the benefits and that hearing then rather than have to go in back nine years and try to get medical records to prove we were disabled back then as we discussed in the car in oregon back in march in judge the park actually said it these are travel back in time hearings trying to find records generated ten years ago it was a mission impossible that this ten day thing is probably the most egregious part of this judge and tell people you have ten days to get records that were generated ten years ago not to mention the competence of some of my clients might as well have been ten minutes your primary complaint is the ten day rule or that or the cutting out for the benefit all of the above the well the i want to go back to the they should have done individual assessment that's their regulation and there's no discretion  the right to violate their own regulation and that was a direct violation they've never denied that so we have the individual assessment they didn't do it immediately the ten day notice is there is there you're mentioning this they should have done an individual assessment before cutting off the benefits is that what you're saying and so what what provision do you rely on is a regulation we cited it's a it's a and may it please the court linus been hurt when assistant attorney general for the state of michigan on behalf of the respondent warden respectfully requesting that this court reverse the district court which abused its discretion by ordering a new trial  when there's been no opportunity to show whether or not mr ewing was denied a fair trial by extraneous influences on the jury at the outset i do want to correct something that is  in my opponent's brief and when he expresses that we've basically conceded that the jury was exposed to extraneous influences we haven't conceded any such thing that's what a hearing for we have an affidavit which makes a prime a fashion case which we believe in title's mr ewing to a hearing to prove whether or not the jury was exposed to any extraneous influences that's the first step then the second step would be what affected those extremists influences have and then the question would be if they were significant you know were they harmless without any evidence beyond a piece of  paper no court can make that determination we submit that the trial court erred the michigan court of appeals erred in the district court erred all of them believe that they could decide based on this one piece of paper whether or not the jury was exposed to extraneous influences and whether or not that denied mr ewing a fair trial or do you think the district court should do shinde it back down to the trial court for a decision or have a ram or hearing exactly  conclusion and does the district court retain jurisdiction in that case i don't believe the district court would retain jurisdiction i believe that depending on the conclusion this of the trial court the losing party should be allowed to appeal i believe the michigan supreme court should be allowed the opportunity to pass on the question and then at that point if if mr ewing is still aggrieved then this then the district court could hear that again in a second  petition or perhaps the district court could retain jurisdiction through the pendency of all of that and just stay the case that time many years has it been since the trial i'm not aware of that number  to or knew at the time of that trial succeeded anyway most people wouldn't remember what happened eight or nine years ago if they were on a jury would day i i don't i'm not an expert in that i would submit that yes i think that's a memorable experience people don't serve on many juries and many first degree murder juries in their lifetime i think that's a memorable experience and i think that that juror burns probably remembers well  what what happened i think jurors james and chesney and in fact i think probably all twelve jurors do you know if those jurors are alive i don't know your honor i don't know and if and if they're not i mean these are things that the court can take into account and can say you know if we've tried to have a hearing we couldn't get these jurors here because they're missing or their dad and and we can make inferences and we can hold that against the state perhaps and we can say you know we control that it's a question suppose hypothetically that that these jurors are inaccessible either dead or can't be found so against whom would any burden or presumption be placed you just said it would be placed against the good of the state i think that i think it would depend and i think it might well be placed against the state what would it depend i think it might depend on whose fault it is and i think unfortunately the fault lies mainly with the w court because in the way in circuit court both parties agreed let's have a hearing let's it's fresh let's do it now in the way answer of course we don't need a hearing i've looked at this affidavit and there was no this this was harmless and the mistake is right if we hold a hearing we might determine i think the assumption that everyone made is that what's in the affidavit will be proven and nothing more and it's possible that what's in the affidavit might be proven and much more or it's possible that less would be proven you know perhaps juror burns is put on the stand and says yes i was on that jury i never filled out this affidavit hearings that event and were done or yesterday i'm going to follow up on what he said earlier in response the question about whether the if it is a new trial that would happy would have to go back to the federal court to get a new trial he wouldn't have to go back to the federal court to get a new trial no if that if ok so the link this trick could so if everybody's doing exactly what they're supposed to do according to you when they go back goes back to the trial court and the trial court has a hearing of course of that size there was no problem then that would be the end of it it's almost the appeals correct correct the jury if the trial court said there was a problem and they report i think i might not have been clear i think if the final decision of the michigan state courts after appeals is no new trial is necessary then i think the district court could maintain jurisdiction  ewing could come back and say all right they held the rubber hearing and here's why the state court's decision following the river hearing was an unreasonable application of rama and that would be but if the redemption of jurisdiction there's well it's based it's challenging the same conviction there's another wrinkle to which i forgot when i was first answer the question when i first tried to answer the question there's another wrinkle which is there are two other heaviest claims the district court declined to pass on and so those are also still in the mix unfortunately so i think i think the best practice would be for the district court to stay the heaviest petition let the process play out now if the state court the final decision of the state court is that a new trial resolve the known constitutional motion or no i know i think the federal court should wait until the state court has remedy and if there are valid claims if they are i think why should there be a delay in the federal court resolving valid could hypothetically valid claims that have been presented to the right i guess my question might betray my bias which is that they're not valid claims assuming they're valid claims i think i think the district court could exercise its discretion and go either way i think we have a known constitutional violation which was the denial of a ram or hearing and so i think my answer would be let's remedy the constitutional violation we do know about before we go on to spend time writing an opinion that says the way we could l i think that's good to know right i think that's correct and if and if indeed there was an extraneous influence and if it in if it influenced the jurors votes in this case and that comes out of the rubber hearing then the district court to save the trouble of having to decide these other two clients isn't it within the scope of the district court's discretion to decide that given the length of time that's passed and given the clear constitutional violation of not affording an evidentiary hearing to say let's give mr ewing a new trial why is that not within the discretion of the district court that we would be reviewing as  remedial choice by the district court because the party the parties never argued in the district court never found that the length of time that elapsed would be a bar to hear and i think that we have a different question if that if that question had been joined and argued and decided below we would be in a different position so i think that's the first answer i think that it is up to the state court to make findings as to whether too much time has passed i mean we have full dress trials on murders that happened thirty years ago i think we can have a hearing based on a trial that happened less than ten years ago and if we can't that's a finding that the state court can make in the state court can say in the first instance you know it's been too long we can't find the witnesses this goes against mr ewing or it goes against the state and then the district court can review that decision and say actually it was an abuse of discretion we don't have the facts right now you know if and that's when there's a clear we knew you have conceded that there was a constitutional violation in denying the rammer hearing correct so what you're doing in effect is rewarding the state courts for their mistake that was a clear constitutional violation no we're we're not rewarding or punishing the state courts because the the point previous is not to reward or punish state courts it's to put what right what went wrong the state court failed to do something and now we're asking the court to order it to do what it failed to do it's not a reward or punishment what we're arguing against is the district court rewarding mr ewing for the state courts failure he's not entitled that reward just because they didn't he bring this up from the very beginning he did it he learned about this he did and he's absolutely entitled to what he asked for he's absolutely entitled to a remedy here and he's not entitled to a windfall which is what he gets because the state court passed up and now he gets a retrial according to you the district court i agree with the district court put on notice that this argument was there to make this argument to the district court we didn't argue which remedy was appropriate in the district were useful it might have been useful we argued that no remedy but by not raising you know we did we don't waive drawn to the then the district court could have explained why i thought this was the right remedy rather than some other remedy i understand and over rated and records never had a chance to say well i did this because memories  that's what mr ewing requested the district actually held the denial of the rember hearing was the violation rammer says you know we hold a hearing in united states versus there was a case ran or it was right on direct appeal right i'm sorry grammar was under direct appeal that is correct so to hold a hearing was close in time to what was what was happening i don't know how far that the trial and remember to the u s supreme court decision and question of whether the reason we don't hold a hearing now is because time has passed memories have faded no hearing would be useful then that would be it we'd be in a different position instead that the court just said he's proven extraneous good morning my name is philip morris characters and i want to what touch upon what the judge rogers brought up about why wasn't this brought up in the initial hay vs response by the government and i indicated in my brief that they actually took the total contrary position that they are taking now on appeal they said quote because ewing failed to show a colorable claim that the trial court properly denied his request for an hearing he likewise showed failed to show a violation of his due process rights they took the position that we weren't even title to a hearing when the c b s petition was filed in front of judge could you argue in your brief that they n page thirty one of my e their claim on appeal it's totally contrary only different arguments that they are making because on appeal they take the position that petition healing was denied due process that a color claim of extraneous influence has been raised and that the michigan court of appeals could not and quickly determine that a harmless error occurred without a so called rumor hearing and totally contrary to the position they took in response to our petition that was in front of  as you indicated judge rogers had they taken the position they are now taking here on appeal it's highly likely that you know judge hood could have evaluated it from that perspective and determine whether or not this is only entitle to remain for a hearing or if it actual new trial should be granted and i agree with judge moore just now that they should have argued this in the alternative to the district court yes and a extraneous influence which they did the court of appeals found there was a an extremist influence but then applying the harmless error standard and and i agree with the attorney general on this if you don't have a hearing you can't apply harmless error and since they incorrectly applied harmless error then as the judge could pointed out in her in her decision this is a trial error that entitles the petitioner to hate this relief and i'm sorry i understand ram or the ram or relief that actually was ordered in the room all of the time period was more condensed yes liz what you're arguing against that and was what your opponent is arguing for which is send it back for a hearing and then if after the i'm not exactly arguing against sending it back if that's an alternative form of relief i would not certainly our grass and store appeal i understand you're rejecting your opposing their appeal you're saying don't send it back or hearing send it back distinction other than passage of time and the do you have any cases at all wherever violation result to the relief that was given here which is i don't believe there was an actual hearing held and it was up to what was the order that was required in which case the numbers versus  that was the one where were the police officers were were tried first second degree murder in the malice screen beating and there was information that came to the attention of the jurors while they were deliberating concerning the possibility of a riot occurring and some other things that were introduced to the jurors that came to the attention of the trial court after the fact by way of affidavits and the new trials were denied without and again and i do agree the passage of time as well as has or is well aware people forget things and ironically the trial court judge in this case has since passed away yes raemer itself is of course different because it was a direct appeal that's true that is true so it may make more sense to really and given not only the time passage but also the fact that supervisory aspect but that sort of cuts both ways on the one hand the state could argue it's less of an infringement comedy principle between the federal government and the state  to give the state courts the power to provide relieve here how do you respond to that the only way i could really respond to that is the party that really gets burdened in the end is mr ewing as you as has been going on for eight years he's been denied all different steps along the way by all the opponents of the case and as this court is well aware if this goes back and hearing is held in a whole new line of appeals come up and then all the while mr ewing is sitting in prison on this case so i think in the end it's not only you know it implicates him as far as  appeal that that's certainly a possibility certainly especially if you came back the jurors are they can't remember what happened that's that's certainly true briefly your honor so i think i need to discuss never sources kill injure in one respect judge moore you've anticipated my argument which is that the petitioner is not going to be entitled to a greater remedy i'm twenty two fifty four given the concerns of comedy federalism and respect for state court judgments then the defendant would be entitled to interact appeal the passage of time is an issue but that's not an issue that's ever been discussed before that's something that would need to be discussed we would argue by the state court in the first instance at the very least by the district court distinguish the neighbor case that well you know what he says is rolling here yes and i think the biggest distinction but with never vs kill injure is that the facts of the extraneous influence were established and were accepted and actually explicitly found by the state courts there was no dispute as to whether the jurors actually viewed them the film malcolm x and what parts they viewed the court knew of because they gave the court gave the jury the film to view sort of to keep them entertained not to try to influence them although he's not a ram or case in the first place right there wasn't really a need a hearing because nobody really disputed the influence on the jury here we don't know if the jury was exams know what the influence of a movie is until you examine the jurors and find out what they thought about the movie right but again well that would have  take perhaps but the state court went ahead and made the factual findings and said here's what we what we believe the factual findings are and so then hey b s you can take those factual findings here contrary to what my friend just said the machi appeals never held that there was an extraneous influence on the jury they took the affidavit and said accepted it is true for the sake of argument and so hypothetically assuming these allegations are true this would be harmless and the the error with that is perhaps the allegations are true and perhaps much more is true and you can't just say this this is true and no more and it's harmless the hearing needed to be held and also possibly they would they would be found to be false and so that's the that's the distinction one distinction with never a person's kill injure is we knew the facts and nevers i see my time has expired of more but i'd be glad to answer any questions otherwise i will say thank you i don't think so thank you both for your argument the case will be submitted and