Judge Bea understands how difficult it is sometimes to come up with the first paragraph of a petition for certiorari. So he helps the defendants through their anticipated writer's block by writing it for them in this dissent from the denial of a rehearing en banc. The first paragraph of which reads:
"The panel majority—over a vigorous dissent by Chief Judge Restani of the Court of International Trade—extends and grants a Bivens claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees. It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh. Further, it disregards the Supreme Court’s narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. [S]uch an unprecedented opinion demands further review. . . ."
Don't be surprised if you see that same first paragraph as the first paragraph of defendant's petition for certiorari. It'd be mine.
