address almost exclusively cap versus county of san diego the case that the court asked us to be ready to address today cap conclusively supports dr klein's appeal on the least two crucial issues one is conduct cap results both of those strongly in dr ron's favor let me talk st about the level of generality what kept reinforces from this circuit is that in a st amendment retaliation case what has to be clearly you so in capital the social worker agency argues well there's no case saying that you can't retaliate by convincing a spouse to seek sole custody of the kids of course not this is a classic defense and three to try to make the right establish as hyper narrow as possible what this court says is that the type of retaliation secondary the important thing is the lead issue which the court says very plainly that you have a right not to have retaliatory action taken against you by government act so can i ask a question about that because cap is interesting there does seem to be some tension with recent supreme court cases there but obviously cap is now in the th circuit  presidential but it i wonder if part of that is dick debbie because he kept the court then goes on to point to a case that's directly on point and so why don't we say well you know there is a case directly on point so this other comment about how how clearly established it needs to be is really big because it kept points to a case that that defines it so i'm i'm sort of wondering why the opinion actually goes into how general it needs to be when there was actually was a case directly on point well and i thought and it was the appellate position that this issue that the immaterial the issue that the form of retaliation is irrelevant well you say it's clearly established previously but i'm looking at an one thousand and ninety eight decision brewster versus board of education of the lynwood unified school district i don't know if you've had a chance to look at this one but in that case it's also a st amendment retaliation and we specifically said the legal right it is you is not the generic right to free speech nor is it the right to be free from expression based retaliatory discipline or discharge rather whether or not brewster enjoyed a clearly established right to speak depends upon the sensitive adhoc balancing the pickering entails so i'm just trying to i'm trying to navigate these cases and it's not easy to do and not even within our own circuit let alone with the supreme court said i think rooster is further along on analyzing another issue and that is the the ultimate issue isn't a nine hundred and eighty three dollars st and that retaliation case that get into the balancing of the peccary test but we're not there yet we're still at the qualified immunity stage at the very least cap and it goes prior decision saying you don't have to look at the type of tell you so that raises the question what do you look at  seems indicate that the issue is fairly broad right not to be retaliated against by the government but even if we go numerous steps more specific than that to a right of government employees not to be retaliated against for go back to that because it seems to me the one difference between cap and this case in you sort of touched on it is the employment contacts versus i mean cap was not an employment context there was a government official that you know just more i suspect that the reason they didn't say anything more specific was it wasn't called for here but again it's the prior cases that establish very clearly that there's a right not to be retaliated against when you're a government employee for reporting was the problem so now you're defining it though more specifically because you're saying it's for reporting misconduct and doing so poorly or i'm saying even if you accept the argument that the defense always tries to make that it has to be hyper specific that hyper specificity is already here it's in a series of cases from the search so you say if we have to define it it's the reporting misconduct that's a specific type of st amendment men men exercise that takes you gives you this this right i'm saying you don't need to make this call because even if you defined it as narrowly and specifically as possible yes federal government employees like to report misconduct it's well established so you don't need to make that call about what level would be whether it's a general generalized right to be free of government or more specifically the problem is if we define it so generally that to me that just creates huge problems because i mean every  problematic no what you said before has some appeal because you're saying it's misconduct and that's a different specific type exactly right or what i think the court is saying is that obviously there should be times when the st amendment well i am more and i think you you sort of you brought up this is your nd argument so maybe you can lead in your nd argument but that is one thing where i mean cap was on a motion to dismiss our case this this case here is on a motion to dismiss so what impact does that have of is there a different standard for qualified immunity on a motion to dismiss versus summary judgment motion it's not that there's a different standard for qualified immunity your honor it's that the court treats the allegations somewhat differently so that's the nd question i talked about when there is an obvious alternative explanation that the language of the cap refers to how do you treat that in a motion to dismiss when the defense is saying no really the reason was this  not for retaliation what cap indicates is that basically adequately pleated allegations of retaliatory motive and the other reasons are protection are treated as true at the pleading stage now the court kept made a very let's let's assume i give you that and i let's assume that the complaint we we take all the allegations is true what is the what is the retaliatory act that was taken by the government according to the complaint here it's the initiation of the investigation and you can see why that's problematic because basically whenever the government action that was taken like they were actually put on leave which was he put on i didn't read that in the complaint that he was actually put on leave even though they were further events after the complaint for the complaint alleges that the they started the m e c proceedings so it's not just an investigation it's a perceiving that could lead to him losing his privileges and then also that there was a letter sent an april th teen indicating the intention to suspend employment so he was there can you i mean it may be outside the record but what you i think whatever doubt there might be about whether the investigation is an adverse action the suspension seems like it clearly would be so if we were to you know if we were to conclude that indicating an intent to suspend but the so why didn't you amend below i mean i i have a little bit of an issue one question about whether that has been waived your right to run it was on appeal well but you  responded to that we normally would have seen in cases like this is say look we think that the sat this pleading standard satisfies a but if it doesn't we would ask for an opportunity to amend the complaint to add new you know new allegations and you additional point because it hadn't happened yet this has been an ongoing saga bottle with the hospital over this you want to reserve i do i would like to reserve the remainder of my time unless the court has any particular questions please the court john mann yeah for the defendants there are seven defendants and one thing i want to stress at the outset is that the all need to be taken into vidual the allegations against them are not all the same  to address the cap case a couple of points st of all i think it's important to note that it's not an employment case and in the employment context you have the issue of the adverse employment action believe the relevant definition of that is set forth in the burlington northern railroad case versus white from two thousand and six the u s supreme court and so you do have to in best reading of the retaliatory action in the in the complaint well you agree that the complaint adequately alleges suspension no there's no suspension there at all in the complaint ryan had the right and exercised his right to appeal that so the medical executive committee which is the body that made that recommendation and which is really the source of the allege action here is out of the process at that point it goes to a judicial review but if he hadn't appealed it they would have suspended him right that is in the bible as if he had not appeal it he would have says i mean doesn't that sort of answer the question then that suspension is i mean for purposes of your client's suspension is really alleged in the complaint except that it's not alleged because he was not suspended he exercised his right and you know these are votes that the i don't know how he knows who voted which way because these are confidential proceedings i don't think he's allowed to know who voted which way but he alleges i would say that he probably officio member who has no voting rights he's the he's the c m o of the hospital so he could not afford it and they don't explain how he could have voted given the undisputed fact that he's only ex another defendant dr deaver gilleo i hope i'm pronouncing that right but does it really matter i mean if the if the board vote we're really going to get into three of them voted for it to him voted against it you can only proceed against the three who voted in favor of it well you're proceeding against the board and individual members you can only proceed against the individuals the board is not a defendant in the case so it's only it's only against individuals and dr dr lewis those are the only ones who are even alleged to have taken that vote but if it had been a it would have been a minority vote then that wouldn't have been a recommendation and that's a struggle i have a job i'm just not familiar with this idea that you could go after the only those who voted in favor of suspension because the action is the action is done by a majority vote so if you i mean if two of them voted in favor and three of them voted against would they would  r claim against the two the voted in favor in that circumstance i don't think they have i understand any of them because i don't think that the mere vote is an adverse action it's a recommendation which was only an intermediate step in the process dr ryan predictably exercised his right to appeal by the way this isn't in the record but a follow up on what mr white said  understanding is that dr ryan actually ended up resigning from the professional staff and and so i mean we would eventually make the argument that this moves the whole case but that's not in the record and the question before this court is whether what happened up to the time the complaint was filed is an adverse employ suppose suppose we just look at the initiation of the investigation you know if we set aside a cap on the ground that it wasn't an employment case although it seems to me uses a pretty broad language that would cover employment but setting aside cap what about oreck because that seems to me almost exactly the same you know to doctor and they threatened him and they initiated the investigation and we said there that that was enough to be an adverse action to support the again it's in the briefs it's not of the complaint they take a different tack they talk about initiation of disciplinary proceedings they don't talk about the investigation well i guess  i'm hadn't appreciated and maybe still don't appreciate the distinction between an investigation and the initiation of disciplinary proceedings and they both seem like you were starting some action we're going to look at things and maybe do something to you and  ore relevantly they both seem like activity that would deter a reasonable person under the burlington standard from engaging in st amendment activity but there's also an important factual distinction between this case and all it which is that in this case the investigation was initiated not by the action a legit action of any individual and the scene members it is instigated by violated medical confidentiality laws both state and federal when he was basically investigating his allegations against dr ravi white so basis so in this case implausible allegation and i guess that would be if you're right about that that would establish that it wasn't retaliatory right i mean there they would say we weren't undertaking this you know because of your protected speech we were doing it because you know we have to investigate the points we got but i don't see how it bears on whether it's an adverse action i mean the the invested the investigation in this proceeding is either an adverse action it be i mean we would deter want to deter a reasonable person from you're going to be subject to an investigation if you speak out well i think that judge nelson an appropriate response to that which is that if need to be able to show the motivation for it right i mean you still need to show that it was in retaliation for speech and not for like if you engaged in some obvious misconduct you're not going to be able to show that well it's not plausible to allege that the investigation itself was retaliatory when the complaint admits that the investigation was a response to dr white's letter and making very serious allegations of violation of medical privacy laws and under the bylaws there was really no choice in this matter but to investigate i seems like i mean i think that we're kind of getting off what this case about i understood this case is at this stage is about qualified immunity it is and so now we're talking about factually well why would someone do this and what's the motivation for doing now and we're not at that stage yet are we we're not at that stage so maybe we should probably confine were responses to judge miller's questions to the in the context of qualified immunity so really and whether it's a matter of clearly established law there you go that the a are of secondary importance secondary of course doesn't mean nonexistent importance there and you know in cap the defense argument was well there's not a case on point  that this exact factual situation was an adverse action so reasonable person in the social workers position would not have known that her actions could subject her to for  liability except that the factual allegations in that case were that she told worst the mother of the children to file an action in court that threatened but was of custody for the father who is the pla and the court said the threat of losing custody of one's children would ordinarily chill a st amendment activity and that a reasonable fishel would know that taking the serious steps of threatening to terminate a parent's custody of his children when the official would not have taken the step absent her retaliatory of that intent violates the st amendment so you have some pretty clear facts in that case and so the details may be of secondary importance but that the focus being on qualified immunity than the what a reasonable person in the defendant's position would know so we submit that in our case the the three the only defendants where there's really any even discussion are the ones who voted in favor of the recommendation for the suspension dr diva really who didn't vote on that i don't see how he and there's this is very vague allegation that they ratified encourage when there's no factual context to explain how they could have done so be like me ratifying something where i'm not a part of it could you address our decision and co psalter because you there we had a list of actions that we know qualify as adverse actions and one of them was an unwarranted disciplinary investigation why doesn't that clearly establish the law here well so there's a couple things about cause alter so they're actually i counted there were sixteen actions that were and they and they said the courts this court said when taken together was a severe and sustained campaign of retaliation the court also said you know some maybe all of these and to susan maybe were individually adverse action they didn't come right out and say the investigation was adverse they did also qualify it by saying it was an on warranted investigation here there's not an allegation that it was an unwarranted investigation in fact again it was in response to dr white you know  all rick the investigation was at the behest of the defendant and it ended up in actions that made it virtually impossible for the plaintiff to obtain employment as a practicing physician  any hospital in the country now i would stipulate that that's materially adverse and that that there be no qualified immunity under those facts i'm not sure alric was a qualified immunity case but neither here or there  there's another investigation case that is discussed to watch your time counsel yes i know and i'm just about done white versus lee where the details of the investigation the investigation went on for many weeks or months wonga than the presumptive limit so there was in the view sieve aspect to the investigation in that case that's not alleged here there's no details about this investigation at all so i don't believe that they plausibly allege that any of the defendants certainly not all of them engaged in average some point in actions or that a reasonable person in the position of any or all of these defendants would have known  and in addition or other arguments i think that the judgment should be a firm thank you very much counsel thank you very much and good way to hang in there good morning again your honour's council is right about one thing when a term i used in the st many complaint rather investigation was procedure so specifically in paragraph thirty it says that they initiated internal disciplinary procedure which sought to revoke professional staff privileges i think that's actually worse than calling it investigation but the bottom line is the complaint specifically alleges the purpose was to revoke his staff privileges and that when they later sent him a notice and this was  a bit later in paragraph thirty five dollars of the proposed action which is to revoke his privileges and then there's the allegation of the letter later saying that he's going to be suspended so all those are more than what was present  rick and we cited a few other cases poland and friday time that indicate that whether or not you call an investigation it can be sufficient another thing i'd like to point out is that the allegations here are even stronger than i believe they already because we made the specific allegations that this type of proceeding or investigation whatever you call it just by initiating it has permanent damage to a doctor's reputation an ability to get a job that once started that doctor is forever home is it public it is not you know the proceeding is not itself public but doctors have to truthfully disclose every time they try to get a job whether or not they've been ever been subject to a proceeding and that absolutely is something that would deter any doctor from speaking i wanted to very briefly i think the court talked about the adverse employment action i want to talk about the allegation that we retaliatory and he endorsed and ratified by saying well we'll let nature take its course as to all of the members of the m d c whether or not they actually voted it alleges specifically complained that they met together with the higher ups and  sorry back to dr katz he would have had the opportunity to just cut this off yes he's the head of d j s so and he basically endorsed it that's what the complaint alleges under cap those allegations are sufficient if we've adequately implausibly alleged that the proceeding was a pretext and we have what kept them in streets is that at the pleading stage at the motion to dismiss as long as we stated specific facts which we have including them saying that dr ryan is reporting these things  one of the reasons for the discipline then that is sufficient to get over defense allegations of an alternative theory thank you thank you counsel thank you both for your ear in this case this matter is submitted now going back to the calendar for today