it please the court my name is sam angel i represent city of pocatello defendants in this case this case is a qualified immunity case we are asking this court to reverse the district court's denial of qualified immunity to the individual defendants in the city of pocatello the united states supreme court has recently given some clarification on how this circuit and other should handle qualified immunity cases and that is given against the backdrop of the beginning point which is that qualified immunity must be granted to individual defendants public officials unless there is a clearly established law precedent that would indicate the public official has violated the law and for example in this case judge when mel failed to properly go through the qualified immunity analysis with regard to the individual to landfills would be would  would the relief be to remain the case or to have the paneling gauge in the analysis of qualified immunity to the facts of this case i think that this panel can reverse judge when mills  enter an order stating that qualified immunity should be applied for the individual defendants in this case and legal question based on the facts is viewed most favorable to the point if correct that this court has a noble review viewing the facts in a light reading of the record even viewed most favorably laugher no look let's assume that viewing the facts in favor of walker that may or blad gave him a binding assurance that's hard for me to articulate but let's assume that for purposes of this  any issues of fact and singing with it he had the authority to make to make that binding commitment no there are not and if we look at how that works first so on the qualified immunity analysis we start seven establishes the authority of what a mayor can and cannot do a mayor has only those powers given granted to the mayor i don't code section fifty dash to a four says that the mayor can appoint such officers but they must be only with the consent of the city council and the defendant our mr walker wants to argue that well the mayor is like a c e o of a company with final decision making authority and that's simply not correct the mayor has limited authority under idaho law and under idaho law it also refers to the authority granted by the city of pocatello and we can look at pocatello city code two point zero six point zero one of which says that the mayor has authority to approve certain officers with subject to the consent of the city council and listed on that list is the chief of police for example but it does not list a captain in the police department well that's not quite fair because two point zero six point zero two zero says the additional officers to be appointed may include but are not limited to the following so it's  certainly requires the consent of the city council but i don't see how you can argue that it expressly ex clued someone below the police chief and i think when we take that against the backdrop of qualified immunity does the law clearly establish that the mayor has the authority to appoint a captain in the police department and if that was clearly established then it may have been a that it does limit it that's where the limitation is found seems to me and that is an additional limitation and that is provided under the city of pocatello code and and i would like to point this court to  case we outlined the hadley versus versus do page case which is the seventh circuit decision and in that case the hadley court sided to ball over says federal reserve bank and i didn't break that case down in our briefing but that  ninth circuit decision and it's a nice circuit decision a little bit earlier from one thousand nine hundred one six fifty fed second ten ninety three in that case i thought that it was instructive on this specific issue  bhalo was the regulatory attorney for the federal reserve bank he received a letter from the bank president assuring continued employment that his continued employment was secure but what the court found was that the just clear to me that that one goes behind a representation of authority always and that's a good question and i don't see any of the courts discussing apparent authority in the context of whether or not a property right is sufficiently established to invoke constitutional protection you know the mayor is about and i have a question about the proceedings here didn't mean church windmill is not a sloppy judge  surprises me that he didn't address any of this wasn't the argument major him the authority question yes this was all briefed to the summer just the stage of proceedings and again i think that that's the important issue for this court to look at is that the rubber really meets the road with these directives from the supreme court recently that district judges need to go completely different point not think that if you are arguing about the a legal question whether there is a property right on this record we haven't gotten to that to the clearly established  sure and what i'm saying is was the argument made to judge when mel that the mayor did not have authority to make this promise even if he made it yes yes that was me and that was not addressed by the court and we think that that's reversible and i think that this finding that based upon idaho law the sit pocatello city council that the mayor did not have the clearly established authority to make that appointment and therefore walker can't claim a protected property interest based upon the mayor's representation burble representation to him and with that that really ends any claim that depends upon mr walker's claim that he had a protected property interest in a prospective promotion has to fail because he has not established that are would that would that ever be that wouldn't cover the disciplinary hearing course that he raises right it's a little bit of a separate argument on the disciplinary question but but if he had no pro no protected property right we don't get there that's the end of the case correct it's a threshold question if he doesn't have that protected property interest it doesn't invoke the penelope of due process rights that that he's arguing for it that either one of the disciplinary matters correct that's exactly clear is his only just a plant impact that he's claiming on the promotion as i understand his claim can clarify he is claiming that he was denied a promotion that is the damage that he suffered he was not fired he was not demoted he was not docked any pay his rank was changed the only thing he is claiming is that a letter of reprimand in one of them correct he got a letter of reprimand  and that took him out of the ability to be able to apply for the next promotion within a year and that was subject to the civil service rules established by the city of pocatello so there was a an opening for a captain position that he any court that has said that and i don't see how the analysis could be any different for the eligibility for promotion than for the promotion itself it would have to still be a clearly established or a binding assurance of that promotion before you can claim a constitutional property right in that well it's the with respect to the one reprimand if i understand i may or may not be understanding you correctly is that the procedure in which he claims that he didn't have an impartial decision maker yes so it seems to me that that is a standalone claim because if he was  there is not and that's an also an important question so he was at a pre term a nation not a terminations haring a pre term a nation herring and he's claiming that he had a right to an impartial decision maker and we have outlined the law in the district so i guess that's the only thing i'm saying is i think they are analytically separate yet they are and i missed that something i want to make sure i'm really clear on this point i said pre term a nation this was not even a pre term a nation hearing this was a disciplinary hearing he was not just side because of this they give him this reprimand and they say now you're not eligible i'm don't see why that isn't a property right that would give him the right to hearing well i think that the answer that question is that all his eligibility to participate in that did not guarantee him a promotion i understand that it's imperative of him to be considered for a promotion well in the consideration was still contingent on even if you made it through to the top three in testing he was a one in three chance of getting selected under the discretion and that we have you know there are a supreme court cases about affirmative action where people say i had a right to be considered without regard to my race for example that's my right whether i would have gotten or not because there were people who went to the government but i had a right to be considered well i think he had the right to be considered but not when he engaged in the conduct that earned him the reprimand that's why i say if the if he loses with respect to the his challenge to the reprimand then when you have to the question of whether there's a property right in other respect a constitutional right to an impartial decision maker that's what his assertion is but what is your position my position is that he has the threshold analysis as he has to prove he had a constitutional right to the prospective promotion because that's the right that he's claiming that he was denied all but but at but i think we explore the possibility that they could be a stand alone or a different type of claim to an impartial decision maker in the disciplinary context and i want to understand your position are you saying that if he had no initial property right that's the end of the case or do we move on to a second question that is whether he has a stand alone claim i think if he has no have please the court my name is amanda all right can i respond or i'm sorry john walker in this matter i think the first thing that we should clear up and one of the problems i think is pointed out by judge burrs on is that judge windmill didn't address necessarily everything had on it that mr angel brought up and that's because the first time on summary judgment that anything about authority period it was raced on reply and it was in reference just to the ha the case there was nothing about idaho code brought up whatsoever in fact the four that's what i was asking it was not right yeah exactly so so dido code argument was not brought up until reply on appeal so so why do you think it was brought  you just said it wasn't crap and i are saying it was brought up you know so idaho code argument was never brought up below the pocatello code was the pocatello ordinance and idaho code arguments were not brought up below on summary judgment at all the only thing that was brought up on summary judgment below was in their reply brief so we had no chance to put anything on the record to respond to it it was just the had the case and that's the only thing that was raised that seventh circuit case pocatello not a factual question where you get you know some affidavits from a witness who saw the actual mantor something so i'm not sure what difference that makes other than to explain why the city personnel policy it's done in the civil service rules it's done in practice and so there are various things from for example the city personnel policy about the mayor having the authority and having to have to approve vacancy fetter felt that we would have otherwise put in the record had we been put on notice about the authority argue i suppose there must be a practice about what happens whether these things actually go to the city council and whether they're completely pro forma cracks and in fact if you look in the record chief marsh and testified about his practice going in talking to the marabout people he was putting it so so i think he's putting them in and that's that's the difference because as i understood the civil service commission a police chief is the one who appoints to the position that your client wanted and he may consult with you know astrologers or the mayor or whoever he wants her she but but it is the chief of police who has total for explicitly well i think it but it but it doesn't preclude the mare also weighing in on that decision in fact in the city personnel policy which i think that the record on and it's two thirty nine there is a specific comment or statement and it's in the sort of preamble of the city personnel policy and it gives the mayor authority to modify personnel policies on a case by case basis including civil service commission rules so i guess it depends on if it conflicts or not and that well that's not my question does the mayor have all thirty to alter the civil service commission rules that apply to the police to per i think based on what's in the record now no but i think there's other things such as there's a portion of the civil service rules that are in the record that apply specifically to the chief of police and those are in the record and i don't we can't share for notice of those if they're actually announced rules maybe you should get  answer about this disciplinary hearing question disciplinary hearing is relevant only because the resulting discipline made your client you know enjoyable for one particular promotion and the question is whether there was clearly established a law that required an impartial decision maker at a non terminations related disciplinary proceedings and i have difficulty seeing that reduced the clearly established law on that particular question shore's oh and just to give some context as well to the hearing so this was actually a pretty terminations hearing potentially because if you look at the record and the notice that walker was given it says that the disciplinary action is up to and including  one we're looking at cases like walker clements stivers just in the due process context and i think it's clear the city recognise that this is beyond just determination issue because when you look at the civil service rules they not only provide a post terminations review by the civil service commission of a terminations decision they provide a review for reduction in rank they provide a review for demotion and i believe there's one other category and i think here that's right because those are adverse  actions this was basically a piece of paper in the fire there was no demotion no reduction in pay no change due to use none of those things happened right but i do think it was functionally a de facto demotion because he was guarantee that when that position so you're saying that not getting a promotion equals a demotion i do in this particular case and this is why is because the mayor promised him that that if he did ok that's a different question that's it but that that relates to whether the mayor has any authority under a law to make that promise such that it creates some sort of property right or whether it's just a friendly reassurance from somebody who likes you sure and i think there's questions that about that issue very well that's that's it's a legal determination either the mayor does have authority or the mayor does not have authority that's not a factual issue in the normal way it's a matter of what is the applicable state and local law is not yes and i think there are aspects of the authority that was delegated by the city council that are not in the record because this wasn't raised that you had a chance to you didn't factually that he had such authority i do i think we did i think because we put the section of the personnel policy in the record that's the american change basically on a case by case basis personnel policy section one chief of police is designated as the appointing authority subject to the rules of the commission the police chief shall appoint the following positions it includes wh client want him so i guess i'm troubled by the idea that you think there is more stuff out there but you didn't seek to put it in as a supplemental excerpt or a judicial notice and we're left with what we have and i just don't see the mayors are thorny to make any sort of binding promise whatsoever and i guess i can i i don't think that that do think although you know it was a brief that there is case law that basically says eligibility for a position period is a protected property and ok but then your argument about the reprimand you soli an argument about the decision maker that is the argument that you made about the disciplinary action and if you're wrong about that then we are left with the this the bare question whether the mayor had the authority to give this person reassurance that was sufficient to create a property right it just so i'm i'm i understand well you're only you're only challenge to the disciplinary action it seems to me is that it wasn't done w a proper decision maker that's how i read your brief right ok right very sure one and only challenge to that reprimand so if we disagree with you about the validity of that argument then we move directly to the promotion itself and whether the mayor could create a property right because if we if we disagree with your argument that there was something wrong  discipline the discipline is it's just the so so i guess just just so i'm tracking and make sure that i'm understanding i do think so so there's two issues right there is the property interest in the promotion and in of itself the actual you conversation from the air with america as i promise you that you will be the next captain but i think there's also an issue that i think it was touched on as well is there a separate issue about the fact that that eligibility was taken away i understand that but the only argument you're making about that is that we didn't get the right decision maker so if you didn't get the right decision maker there's nothing wrong with it and then we move right on to promotion that's my only point that  the other but let me see if we understand this the  that the mayor made that deals with one promotion did the did the i'm biased decision maker deal with a separate promotion or is that the same promotion conversation like marin says what happened and then said i after that hit because the promise even if you if you look at it most favorably to him was that if you're essentially on the one that was in the fall slash i think early winter of thirteen that happened after that conversation where he was taken off the eligibility list yes and right off the eligibility this for the next year was well i think he was on the eligibility list right right but i think the reality is that judge will actually did fairly address that and in fact he didn't address that you're saying you didn't address because nobody asked well i guess the binding assurance issue i'm not talking about that i read about this part of the assurance question short or i think they i don't know and the the city came in its opening brief and said you know very interesting about the binding assurance but he had no authority and you say nothing zero am i right about that to sum up well i think in some there was there was an assurance made by the man who's the chief executive officer of the city and it says that in the personnel policy he's in charge of the day to day running of the city and that's what it sa there so i do think there is information in the record upon which to base a decision that yes he did legally have the authority to bind the city with the promise that he made and there's certainly sufficient evidence in the record to support that that binding assurance was made definitely i think it was clearly distinct her decided law because of newness and on that particular issue with the promise of a promotion and additionally i think an impartial unbiased decision maker issue that was also clearly established law because if he had a property interest that required due process due process always requires that you have an unbiased impartial decision maker thank you can thank you thank you maybe if i could just follow up on one of the questions that the court answered about the civil service rules they are adopted by the city council that's in the record at two sixty you'll see the stamp on the bottom of each one of those civil service rules indicating adopted by the city council that date the mayor does not have the authority to unilaterally change those so those rights that are established by the civil service commission exist for the employee and then i guess just the final point that i wanted to make back on the clearly established issue with regard to the disciplinary hearing or the terminations haring and judge one mill just did not analyze that at the at the nuanced level of this was a disciplinary hearing this was not  determination hearing and that's where this court on a done over review can turn around and reverse that and find that for purposes of a disciplinary hearing is there any instance in which there is a protective property right and there is no right to an unbiased decision maker somewhere along the way i don't know that be hard to answer but i think in the context of a disciplinary hearing that might be the example because where terminations is not on the line you don't necessarily have that right to a and unbiased decision maker that's going to be your supervisor free not necessarily are you free jeff of ation hearing sometimes if there's going to be another hearing right but if there's not going to be another hearing then you know you're never getting an unbiased decision but here it's just believe that he did lose something i e that he had a crappy interest in i e being considered for this for this position then why in a sense every disciplinary action may have an old committee fact right on promotions soul or any other employee men decision i guess you would have to say that the disciplinary hearing directly impacted that is it was connected to it related to not that he could have a potential effect on the future employment decisions that is that it i think that that's what mr walker would argue is that yes but i think that we have to gauge that against the backdrop the civil service rules would have given him that anybody would have an avenue to pursue that particular theory not a constitutional have a no right he would but he would have been protected under what the constitution or required