thirteen minutes i would reserve one minute of that time for rebuttal and counsel for defendant appellant janet mcclellan will be arguing for three minutes and he'll reserve one minute of that time for rebuttal you guys really don't want discovery in this court today is whether these defendants or defendants officials in these defendants positions would have known based on some sort of clearly established law that when they terminated patrick they were violating first amendment or due process rights based on the most closely analogous case law they should be afforded qualified immunity both on the first amendment and  share yours skepticism about the also merits of the case but i'm really struggling with how we do this and a motion to dismiss well there are certainly many cases where there hasn't been any discovery or limited discovery but the reason in this case why it doesn't matter is because the issues that that are before this court now we are not saying that we don't agree with what we're accepting for purposes of this appeal that you know both sides agree that patrick doesn't call the attorney general a deadbeat and patrick devlin has admitted in his amended complaint that he did discuss and but i'll just as one and then i'm going to let judge givens ask her question you would concede would knew that the deadbeat comment is a speech about a matter of public concern i mean i  in this case but i don't think it's my strong stardom and i have made the argument so you're saying in this you're telling us it's not public concern when the attorney general of the state for whatever reason declines to enforce know isn't it true that if somebody says a senior state law enforcement official is not enforcing the law i mean that's absolutely so and that's what he said i mean he said it in a colorful way but that's what he said you know and just to get you know clear out this sort of the underbrush that we don't need to write about in an opinion that's that's all i would say that it's not my strong you know to make the argument that that was an employee of the but losing their lives let's just say that the retaliation if you have to get to the ballots in part of the yes you just don't have an adequate record to do it in the absence of discovery what would be our record in this case with respect to balancing what i would say here is that the law is not that every time a case goes to pickering ballot saying you have to have to say i think you say i was i just said it's very difficult to do it it's just here for this court to determine that the comment about the attorney general being a dead beat you know i mean for us to say i'm struggling a little with that maybe i'm just echoing what judge kaplan was saying the complaint is about what the attorney general is doing with these statues deadbeat is a way to get people's attention it may not be tasteful it may not be tactful it may ultimately hurt in a big way winning before a jury but the notion of bath phrase  it not free speech is a distinction for example it talks about the cohen case that the jacket with distasteful word on it and the draft and it says you're the first man right to say that but that doesn't mean  boyer doesn't also have the right to restrict that kind of speech when it's paying somebody salary to contribute to the efficient running of the operation true here and i think if you consider the law enforcement context of the michigan gaming control board and the close relationships with the attorney general and him his office and the michigan state police and a law enforcement was going to consider that hair we could see what document tells us that there is such a close relationship what document addresses the well i think this court there isn't a document that that defines that but it's very clear that the michigan gaining control board by statute does enforce laws if there's a law enforcement contacts to even apart from the you know the attorney general and case law has recognized that that want context is very crucial it changes the equation and so does the need for confidentiality n i can't remember what the position was called but he was you know the kind of the person who is responsible for the monitoring of certain activities and he ultimately  about the fact that the attorney general was not enforcing certain laws with respect to the travel casinos in and that's about all we know about it and what do we know about the  about the way the gaming board operated about how this affected the board internally about the relationship among the various folks what do we know about the well we do know a gets nothing there has to be something evident cheree does there in this particular case to balance did beat again well what we what the other thing we have is are the standards of conduct unbecoming to a state classified civil servant they're held to a higher so he understood them and on the other hand you know i mean the we're kind of saying the same thing over and over and on the one hand it seems you have a just a manifest first amendment interest on the one side of the pickering scale for the reasons we've talked about on the other hand we have at least at this stage of the case what almost to me reads as governmental puffery you know the name calling of the attorney general undermined the trust and confidence that are central to devils position the potential disruptiveness of devon speech to interfere with the game control board mission was enough to outweigh whatever first amendment value his speech had i mean maybe after evidence but can't you see the difficulty we have i mean this yes but to say that ok this outweighs what's interesting dischord has also said that that great  where something is a matter of public concern great deference should be given to the governmental employers judgment that this would be described going to have that judgment we have speculation about potential disruptive i mean with all due respect and i mean you've done a fine job in the brief and here but what we have here is lawyer testimony not real testimony don't we have to get to real testimony to do this balancing and i would submit to you that that would negate the very purpose of qualified immunity and being able to come before the court and do a pickering balance without always having to scot free now what this court is saying you talk to the supreme court about that they created the pickering test it's a logical consequence of that test that most times it will but you have to agree it is a logical consequence of balancing a bunch of facts that it would normally require discovery so i don't know what you think you're getting with this argument i would also say your honor that court case about ninety six i don't know the name of the school year wrote the opinion in the question was whether you could both bring interlocutory appeal for a motion to dismiss from losing emotions and deny summary judgment at least two justices maybe more said say i did not handle this case when the first motion was raised and only younger extension was raised this court said that was a very novel application of the younger the second time i raised everything and judge  i raised all of these issues are you in the first i don't understand why the rule shouldn't be if you didn't raise this in the first one the way this works is you don't get to raise one lose and then keep getting in not going to prevent these people from getting to litigate their cases ever because you keep firing out for appeals they were not raised by office in the first motion they i think the attorney relied on younger abstention but they certainly were raised in the second one and judge decided only on preferred abstention grounds and not on these other grounds and so and on the third time that me and we did bring up these issues and they different tack and not and skew anything it just might be that perhaps given the tenor of the questions in this case on the first why it just might be that the panel my issue an opinion that would strongly indicate that the better course of discretion with the attorney general was to get on with the development of the doesn't he lay out her position at the time of the actions he's complaining about and it's basically a sin of omission that you know i mean read generously the complaint is making as to you're quite right he has allegation is that she was copied via e mail with this letter and the she didn't do anything to intervene on his behalf but she was not he bizer should participate in the best vacation she didn't make the decision to discharge him even if you're taking the allegations is true they're just simply legally not well i mean it is i understand his allegation if she had the authority to stop this and she did that is the allegation right when that's usually what we go on at this stage of the case now what you said in response if fleshed out with testimony sounds like summary judgment material potentially well it doesn't sound like twelve and six which are i would say that that but they're just mere legal conclusions and speculation not to say not not as i characterized it well if he's saying that she had the authority to intervene that's that's just simply not supported by the law the civil service rules and regulation is not law well it offers superintending control over agreements which at this time there was none because there hadn't been no discipline and i don't have jurisdiction over your client's appeal i'm sorry how do we have jurisdiction over your appeal it's not qualified immunity we ha in this case i don't think it rises to the level he hasn't met his burden to strip her of her entitlement to qualified immunity in this case because i don't think a government reason government official in a position it's where it's it's for purposes of appellate argument it's characterizing what is really an argument that insufficient personal involvement is alleged and in fact e g it as the lack of anally geisha of a constitutional violation is liquor the customers without litter licenses and each other michigan law or the penal code each heechul each possession is a felony so we're talking hundreds of thousands of felonies and none of them have been prosecuted and i know as you said you don't have any background but i brought this to to the attention of the executive control and liquor control may well all they can do is suspend licenses and fines but they have no authority over criminal prosecution go to the a g so i did and that process took over two years and they said they were studying it and nothing became of it in the meantime because you can make a whistleblower complaint not only the executive branch you can make it through the legislative and judicial i went to the auditor general's office who spoke worst of the legislature is supposed to be auditing over non compliant functions by various state agencies and they didn't do anything they in fact called my agency and told told them what i had that i'd complain to them one thing that was done was and the due process claim that seem like you were there's a ladder there's a notice it was a kind of a hearing there's an option of a post germination hearing why i realize motion dismiss you know y very conclusory like you violate a rule for you who are insubordinate but it doesn't say what i did or when i was alleged to have done it the whole point of louder bill is in order to give a right of reply here you have to know at least some of those delineation of what the charges are about other than just like most briana i see or something you've got to know and then you have to give discovery they gave me no discovery i wrote that letter amongst other things to get this out of them requires discovery in all cases yet does the material that they're relying on to support the charges loudermilk requires that that's probably the fundamental part of a lot of mail and i didn't get it i got all i got from them tory conference was they suspended me then they give me an investigatory conference and they don't ask me about the what they're know as you pointed out that we now have a lawyer pleading here they didn't ask me about any alleged privacy or what documents are or you know that didn't even come up i wrote the letter because i could see where the freight train was going they were not going to give me the charges despite my requests specific charges and they were not going to give me the discovery and so i wrote that letter asking for it and i said if you're not going to give it at least based on what you've given me i'm going to tell you were my position as but so i get in to the so called loudermilk conference and first thing they do is h so that's noncompliant with loudermilk you know well only if you think there's a better reason or more reason they didn't tell you balotelli that if that if what they hear me dead in a way that's actually manufacture stuff that that it order to provide due process you're asking that you be required to create documents and other bases that were because we think they do here they attached to their motion documents that they claim were existence at the time of my firing which they didn't give me which they would do they didn't mention one give me no other try in the but they don't see what was in support apparently if you follow the law that's insubordinate apparently if i make a whistleblower complaint that's insubordinate because under their view in order to make a whistleblower point you've got to go to the person violating the law and tell them that they're violating the law before you can make a whistleblower complaint because that would be insubordinate people outside your chain of command i think you're you're just going to it's given me this is really helpful to you i don't know that i'd be looking for too much more elaboration under laughter mill or anything else we can do is get i knew i had enough to go fifteen minutes so i'll just hit a couple little points nothing is required it's ok that you use all your time but it's also ok to use it