may please the court my name is matthew weiner i represent the plaintiff appellant random aiko there are two issues on this appeal of the first amendment tell you ssion case the first issue is causation and the second issue is whether there is a constitutionally injury like to start with the first issue a legal issue about whether or not these individuals were mandated by law to to call in this problem john we're not disputing that they are plaintiff's complaints about the way her daughter was mistreated in june of the previous year of june of two thousand and thirteen you saying that they hold part because they had to in part because they were drawn to retaliate well there is a question about whether they had to  we may objective that is what i'm in order to do a mandated reporter has to do however there is evidence in this case that there's another there was another case involving care of a medical a medical care issue of  child and in that case one of the defendants didn't call c p s that is one of the issues that the defendants are saying they called about here is a medical care issue so if they're trying to rely on a statute to say were mandated reporters there is another case in which they arguably should have called but chose not to so that what i'm saying is there is an element of discretion in this it's not automatic where we're presented with a set of facts and we say ok or the mandated reporter says yes i have to call they're using discretion is this a particular situation where i should call and what i'm saying in this particular case they viewed it they were looking at the facts and they were motivated to call based in part on the earlier complaints but even if were we are going to say that the child came to school made this report about being hit even if we say that that's a reason that's an objective lee reasonable basis that a mandated reporter should make the call that's not where this case ended the defendants here went further and made a false statement and it's that false statement which triggered the c p s investigation to be open and that statement is that maaco has failed to seek out treatment and an evaluation for an m was there any evidence that the defendant knew of the falsity that they they're saying that they had no evidence one way or the other which had been the answer whether there was evidence that the defendants knew that she in fact had cold called the doctor no they didn't know one way or the other should they didn't have evidence that she had called so it's an it's an unknowingly false statement it's an annoyingly false statement but which we're arguing should've been the answer that they are saying that they're go i'm sorry you said what you argue we were arguing that that should be the answer we don't know would not be the answer the answer that they should have given they're saying that they called c p s c p s said did the mother have the child evaluated medically right and they're saying we said that she should but she didn't when they they don't have evidence one way or the other whether she did so that's what they should have said is we don't know whether she did or not we can look into it if you'd like but we don't know whether she had the child evaluated because that's they don't have information one way or the other about whether she did it macko ever contest ever tell the school that no that's not true well i think the answer is no she learned that the school had said that through the c p s investigation and at that point i think there was a breakdown in communication between the school i mean why  understand your your argument but why isn't prestes statement consistent with the fact that macko had had recently said that she had not you know she had not yet agreed to this issue with so there was some confusion there but just that very day of confusion in the plaintiff's head which she said she refused to have her evaluated by the school psychologist she did she didn't say she didn't say this is i'm refusing it because i think billet ski is the school psychologist and she's had this mix up with bullet ski before she just said she refused well at that point with the school psychologist there there oregon is they were saying we were telling her to get outside counseling services in a medical evaluation not in the school the the first record by the way we dispute that as well that she was told to do that but the first time that we acknowledged that the school made any indication that ms maaco should seek some kind of help in within that week and that very day on april eighth ms maaco e mailed the teacher and said i brought an m home and i called her doctor and i'm working on getting a referral as of the time the call was made the school had that e mail miss maldonado had that e mail but they still said that she was refusing to get medical care for her child when just that within an hour before the call was placed she said i'm trying to call the pediatrician and i'm trying to get this evalu n and so that seems very much false and another part of our argument is that prissy didn't look into any of these things that happened that morning there was a whole host of things that were happening in school with and on the morning of april eighth that gave reason why a mother might come to the school and pick her daughter up and talk to her and even discipline her but the principal didn't know anything about that because she didn't speak to the school teacher who had been with the daughter all day who had been e mailing the mother about all  issues and who could have conveyed all of this to prosody and who could have conveyed that to c p s which again is very trying and that none of these things were given to c p s which could have painted a more fuller picture and proper picture about what was happening that morning it did  that at least you know giving deference to the school administrators that presti had correctly evaluated the situation i understand the difference and i understand the policy considerations and i understand the difficult position  f place in the court and but i think if we look at the facts not in the vacuum of was a proper to call based on a child reporting hitting but we have a child who was known to lie known by all of these actors everybody here knew that she would lie they knew her very well they knew the daughter very well they do the mother very well they never had any concerns about the mother striking the daughter or abusing or mistreating the daughter just one day the story this student comes to school who they know lies particularly after lunch would come back from lunch in light of the teacher who had lied that very morning about a teacher hurting her which was false and she comes to school reports this and the principal doesn't pause doesn't say let me gather more facts that i know she lies let me just make sure in my mind even though the teacher who took the initial report from and them she wasn't so sure her testimony as i wasn't sure i didn't know she had law she lied that very morning about me hurting her i'm not quite sure but there is no indication there's no evidence that pressed used any question or expressed any doubt to c p s even if she called and said hey i'm not quite sure she does lie she didn't say that she said that the mother hit her at home and that again the cost of ended their c p s was not going to throw the actions i think what they actually did and or even beyond that i'm suggesting that it's a pretty extraordinary set of facts and it would be kind of unusual not to take action on those very again even if it's objective lee reasonable to say that this was unusual what the school did shows that they weren't interested in doing a complete job in finding the truth they really just wanted to take that statement and start the c p s investigation and that's really why would the why was this not result not commanded under qualified immunity the district court in reach that question you know what i'm asking you why is that not a result that was required by the qualified immunity the constitutional claims under the state law privilege it was well my argument for that on the constitutional plans would be that the state law privilege should apply to constitutional claims on the question of call well if it isn't what isn't that lead to immunity if it indeed is retaliation that's willful misconduct and that that takes you outside the scope of the i think section four nineteen privilege and i would argue that that's also the reason that any qualified immunity should attach that there is evidence that they use this opportunity to open a c p s investigation again even if it was reasonable to say ok she's reporting being hit we call c p s telling them back that's what happened but c p s tells them we can't take the call and the c ended then they go on to make these other comments about the lack of medical care and that's why we're here that's why this this c p s investigation opens if it's just about the the quality hitting so again c p s takes the call they said we can't take that call they should have hung up and that should have been the end but the defendants go further and they make these false statements about the medical care and that's why we're here that's why this whole investigation opens they went above and beyond saying bless you or they go above and beyond and they make these extra comments that have nothing to do with the hitting that they have no basis in fact to make and that's why the you should opens and that's why we're here today and months elapse between  s complaints and press these report what at all what evidence at all you have of a link between it well first of all those comments directly by the decision makers showing that they were unhappy with both the manner of make complaint and the content of the complaint indeed they both thought it attacked professionalism and they both admitted that they were upset by the complaint and contemporaneously with this investigation presti tells c p s about this complaint so it shows it is very much on her mind and i understand that when there's a distant temper proximity the urge to retaliate might fade but i think  s during the investigation shows that it's very much on her mind that this wasn't just some distant faded memory that she was thinking about and that she was still upset by it as she admitted she was at the time the complaint was made so i think this case is very different than the cases that just hold at some when all you have is some distant temper proximity short makes sense to say that to the urge to retaliate might fade but here we have comments by decision makers and it's very much like the some of us have two cases cited by th court where i think it was seven months and where there were there was an email back and forth between two of the decision makers of the adverse action talking about the protected activity which again showed that it was on their mind and they were thinking about it at the time they made the adverse action i would argue here again we have a statement by a decision maker about the protected activity at or about the time that the retaliatory conduct was taken thank you there's morning you're on is me please the court my name is charles smith and i represent the two remaining defendants in this action lori presti and carrie billet ski the district court dismissed this claim on two bases first that there was no causal relationship established by the plaintiff between the meeting in june two thousand and thirteen and the events ten months later in april of two thousand and fourteen and the district court also dismissed this claim because under the first amendment retaliation analysis had failed to establish that she had suffered a concrete harm in fact she had failed to establish that she really suffered any harm whatsoever according to the district court with regards to the causal relationship and your honour's have touched on quite a bit of this already apparent counsel has already characterized a lot of the confusion here is basically a lack of communication or some sort of confusion between the plaintiff maaco and the school and i would submit that under the unusual deference that owed to mandated reporters simple confusion or some sort of lack of communication cannot cannot be immediately chalked up to evidence of malice and evidence of a tally atory intent and that's the leap that appellant is asking this court to make i would point but this case is very similar to a court case issued by this decision issued by this court just in november of two thousand and seventeen dolby huntington union free school district in that case the plaintiffs a family accused the school of first amendment palliation based upon a report me to c p s now there are some facts in that case that are worth pointing out first in that case it was actually a dispute as to whether what the student told his teacher was even accurate as to what this case no dispute the student came back from lunch told her classroom teacher exactly what her mother had done to her and her mother since admitted in her own deposition but yes that's exactly what happened so there's no dispute here as to what the student told her teacher and her principal and there's no dispute as to what actually happened in dole the report to c p s was made one day after the protected activity and yet the court still found in that case no evidence whatsoever of a causal relationship chance how do you respond to this you the first chance that the school officials could get back at a maaco was ten months after the the complaint this is not like a case where there's an employee working for an employer and ten months might seem like depending on the circumstances a long period of time if this is the first chance that the school officials could go after the parent then ten months may not seem like such a long time your honor you're right if that were the case but i don't believe the record bears that out and here is why  theory of this case is that the two defendants to to a pelleas were so incensed and angered and held such a grudge over this meeting in june two thousand and thirteen that they conspired to make up these false statements about counseling and relate to c p s in order to get this investigation going there's actually no evidence in the record to show why they had to wait ten months in order to do that they could have made those allegations the day after the june two thousand and thirteen meeting or at any day up and before they actually did so there's no evidence in the record to explain why this actually was the first opportunity they had to do so if appellants theory is true and they conspired to make false knowingly false knowingly false statements to c p s they could have done that at any point there was nothing preventing them from doing that the student was a student in the school in june of two thousand and thirteen through april two thousand and fourteen every day there was no time in which these mandated reporters could not have made the same phone call and concocted the same alleged story to get the c p s investigation going as this retaliation for the june two thousand and thirteen meeting so i don't think the record bears or supports the notion that this was the first time what the record shows is that in april fourth two thousand and fourteen the reason they called c p s for the first time ever about this family was that something happened that day a superseding intervening event and that's that the student came back and describe what this panel has already suggested were rather extraordinary circumstances that the mother for the first time ever had taken her daughter home for lunch had hit her in the way the student described she then gives that story consistently to a classroom teacher and a principal no no discussion with the teacher right i'm sorry ron no discussion with an ems teacher who do you mean i'm sorry that is on their version on plaintiff's version of the facts right press the report of the potential abuse after investigating only about an hour without talking to an ems teacher and with the advice of a whisky about whom maaco had previously complained actually on of the record shows that deposition she is shown a document that she testifies refreshers her recollection that she did in fact report the incident directly to the principal so the record actually supports that mr presti spoke to miss  before the call was made and all three individuals were in agreement that day and were in agreement in their depositions that this call needed to be made that is mandated reporters this was a situation that needed to be given to c p s to make further determinations and of course it's very notable that miss maldonado is among those that were in agreement because she's not accused of doing anything wrong here she wasn't accused of defaming or acting in any way improper and yet she had the same opinion of the situation as  only thing that distinguishes them from this maldonado is that they were at a meeting in june two thousand and thirteen which again gets to this theory by the appellant that while the because there was this meeting in june two thousand and thirteen everything that came afterwards is attributed to that meeting and it's just too big of a leap to make and there's no evidence in the record to support that leap now palin has pointed out these alleged statements that sort of i guess he says reveal the anger that was in the minds of well it's worth pointing out first of all that those e mails and conversations took place in the days and media only after the june two thousand and thirteen meaning when the meeting was reasonably still fresh in everyone's mind and i don't think it's one reasonable that a principal in a social worker took the time to create a written memo of a meeting they had with a parent in which yes there was a disagreement but there is no evidence on the record whatsoever that any statements were made amongst the parent and the defendant or the defendant himself at any point after that i punishment was being relayed questions were questions were posed to her regarding background information regarding things like counseling they were unprompted by ms presti but that became the phone call and that became the investigation but it became so at the direction of c p s and so again it palin's theory is that this anger this simmering anger from june two thousand and thirteen late date it caused these two individuals to lay in wait so that the minute they were confronted with this situation of physical alleged physical abuse which of course they had no way of knowing might or may not ever occur they suddenly conspired in that moment to not only present those facts which we all decide now you know understand or undisputed but oh by the way if claims or were all the state law claims dismissed without regard ruling on them that's correct your honor the defamation claim was dismissed without prejudice there is no state law claim adjudicated the only adjudication was a federal court yes that's correct you know so what about yes the mandated reporters certainly acted i believe reasonably given the circumstances and that would entitle them to qualified immunity and when when when when the circumstances call for  mandated reporting one must report even if one has animus against the person being reported you don't do it you don't fail to report when reporting is mandated because you have a grudge against allowed to to not report because you have a grudge against the person if that exists no you are in fact you open yourself up to civil and criminal liability for failing to report so so was there what reason did the the district court explain why the why the court did not rule based on qualified immunity over and above the ruling on the merits no i believe this court just didn't reach it did move on qualified immunity in our in our papers before the district court we did and they just didn't reach that question because they had dismissed it on these two other issues thank you  here if i could just very briefly i know it went over and i know you have yet you have two minutes thank you i did just want to touch on the point of this conspiracy theory and the laying in wait argument we're not saying that bullets and crusty said hey let's just hang out and wait and our opportunity will come i'm not saying that it's an overt conspiracy i'm saying that when n m walked into the to the school that morning or that afternoon and said i was hit it gave them an opportunity to initiate a c p s investigation a that should be the end but again they went further so you know mr smith said they could have at any point made up these false every four to that should be the end right that i do believe that this they could have c p s rightfully inquired about if that's the way to call when c p s akron in florida again woods making further inquiry is ok and according to their version of what happened they made further inquiry but the statements just were not accurate or true or the way they should have been answered if you're being truthful and if you're acting in good faith if somebody asks you did the mother have the child examined medically and you don't know why would you say no the only conclusion is that they wanted that c p s investigation opened and the  didn't know one way or the other when she answered oh so ok so she was so she know in the i'm sorry in deposition she said when she answered that she didn't know one way or the other and which again is our position is that that should be the answer i don't know one way or the other but she said no mom didn't have the child examined medically and that's why the investigation opens thank you thank you both for your arguments the court will reserve decision