is whether or not super discern is entirely qualified immunity in this transfer case as you know from the record mr roy ball was a principal at the school district for a number of years and then he was transferred to an assistance position that transfer was that same pay and under snead did not in my view trigger any constitutional issue as far as property interest because he was simply transferred to a different job at the same pay and that shortly very shortly thereafter he's was assigned to a teaching position one half as former so wrecked it two years later he served as the assistant principal and part time in an alternative school for two school years and it was at the end of the second school year that he was then transferred to a certificate position  so the question i think becomes at that point one of the appropriate notice and the interest that he had as a assistant principal by statute was defined as one which was where he could be transferred from that position to ace a classroom position without the need of showing cause or without going through  court had it had in decayed interest in us discussing particularly whether or not the process due was governed by state law or by federal law and i think that the school board louder mill case makes it clear that while the interest that is a property interest is defined by state law the process do is clearly defined by law to mel and i think the court case that both of you missed yes i will acknowledge that your honor and i had really not i think i had had focused on the creation of the property right  that and i think we've i focused on the second prong more than i should because i think if you step back i'm not sure that there was a a constitutional violation at all because when mr roy ball was notified that he had the right to that he was going to be transferred to the classroom he had the right to both discuss with the superintendent his concerns and also appear and did appear before the school board to provide his position as to why he should not be transferred to washington always entitle to both a free deprivation hearing correct under washing law under three  discovery is me in the post deprivation hearing process that is allowed to tenure principles there's a whole process it's like a mini trial but i don't see any requirement even in the wash in law in the in pre terminations process for for the system principle that there's any discovery allowed but then i don't think that matters because i think the question of his  process do is governed by law to mel and all our bill says it is very succinctly that he has to have an opportunity to respond either in writing or or verbal way and to be aware of the of the basis of the decision he he received both of those so i think at that point there is no constitutional violation and that he was provided all of the rights in modern mail and then the question of the state created rights really doesn't doesn't come into play except as it becomes a post depravation issue for the district court applied state law right yes the district  whether there was a due process violation or not under state law correct yes yes and it's your position now that you've read loudermilk that federal law will well i i did mi a pretty terminations lot of mil hearing by even what was implied in the statute as well because you have to give them notice that you're going to make the transfer and then they have an opportunity to discuss it with the superintendent which was done in this you the retaliation claim really is part of the first amendment claim as i view it in other words the claim was that that because he went to a lawyer he went to a lawyer and because  superintendent was took some embers that he went to the lawyer that he made some act took some action against against mr royal i don't think i have an i don't analyze that in terms of the this court's ruling is as a separate claim what the court said was that part of the first amendment claim part of the reason why they were arguing that this was more than just a monday in personnel dispute was because the complaints that mr roy ball was making were that that he was being retaliated against in his first amendment speech about going to a lawyer well let me just ask you before we even get there do we have jurisdiction dispute about evaluation and i think and makes it very clear that you know those sort of personnel disputes do not rise don't meet the five tests of thing they don't rise to the level of a first amendment  private citizen exercising first you know their rights thank you you're not understanding like i'm sorry my question is should we even be talking about what you're talking about because if it's basically a factual dispute on a summary judgment or not is a question of law thank you john and i think in this case that the speech was not protected it was simply complaints that he had not been evaluated had not been properly evaluated he throws in and tries to dress it up a little bit m royal does by saying well you know there might be some history of them not to evaluating teachers but i don't think that rises to the level of public concern or would be an issue that a private citizen raise he raises this in his capacity as an employee and he's complaining about his evaluations as a concern about the way in which he's treat treated professionally and gives those to a lawyer yes the lawyer doesn't hold a press conference and castigate the school district or the superintendent right you know that's right he writes a perfectly respectable letter to the board saying that mr roy ball has contacted him and he's looking into the matter right that's correct and that alone crna off right i think there's a dispute in the facts about that but i think there is evidence in the record where mr cernan felt that offended by the fact that he went around him and went to a lawyer you know there's a long string of cases that  liability cases like this that says if it is a question of fact courts of appeal are uniquely unqualified to resolve them that's for the trial court i am aware this case and i agree with that but i also think you know statements out of the supreme court that don't particularly help us because you can say well it's there it doesn't fit there it's it's basically a personnel dispute yes and the question is is somehow his concern that the district isn't following this school improvement plan or some other thing does that take it out of a personal dispute that's really my quest yes and i don't believe it does i believe that's a question of law and i say i'm down to four minutes and thirty seconds i want to reserve four minutes i'd like to finish this distressing them but no i believe that that does not that the going to the lawyer or trying to make this more than a personnel dispute does not accomplish the job i think that it still is a matter of law this was good morning my name is kevin montoya i represent robert roybal there are two issues under due process the first issue is whether he was provided with any right to respond prior to being deprived of his right to be a principal the second due process issue is whether or not he received adequate post deprivation due process protections the court asked us to focus on whether that's covered by federal law federal law does decide the issue of whether or not he was provided adequate due process protection deidre versus mount adams school district of washington state court of appeals case is based upon louder male as your honor mckeown noted in a public employment context people talk about louder mill hearings and they say we're going to have a louder male deidre versus mt adams school district created the washington standard that interprets louder male and says that any time you're going to deprive somebody a teacher or administrator of any kind of employment right any property right that you have to have a louder mill hearing and that's what mr roybal didn't get because i'd like to clarify the record on that on may fifteen twenty fourteen he received a letter that said your being transferred the transfer cost him fifty seven thousand dollars a year in salary and benefits the transfer decision was made before any meeting or opportunity to respond about the stated reasons that were in the transfer letter when mr roybal received the transfer letter it said you have a right to request a quote reconsideration or have a wreak have the board reconsider it the reconsideration or the ability to have somebody look at it and reconsider it was at an executive session that was held on may twentieth two thousand and fourteen one week later when he showed up he hadn't received any reasons except for a few conclusory ones in the may fifteenth letter that explained why they were transferring him so maybe i just ask you this is where we get confused because will in washington do refer to it as a lot of male hearing but of course they're looking also to state law as to what's required but it's kind of gotten this rubric of well we're having a lot of really airing for any public employee who has an adverse action but if it's the great a case actually is interpret in washington it might say louder mail but it's a washington gloss which we're not really bound by in the federal court so here's what lauder mill says they get you get oral or written notice of the charges which he did in effect of the changes an explanation and an opportunity to respond so i would appreciate within that context if you could tell me why in your view he didn't get the due process required by the federal law all right and on good ride like to clarify something deidre does bland the teacher statutory process that's required with a louder mill but deidre does decide the issue that loud or mill requires a pre terminations or pre deprivation hearing of some kind and regardless of whether it's federal or state is the clear president interpret in federal constitutional law that the district was aware of now what process was he in titled to here's how it happened he got a letter on may fifteen twenty fourteen that said you are transferred the record is clear before the decision to transfer him that cost him fifty seven thousand dollars a year he received absolutely no opportunity to respond to anything in the letter that was the basis for his transfer in fact the letter says if you show up at the informal board hearing we will rican pup potentially reconsider it they talk in terms of reconsideration in fact in the may fifteen letter it says it is determined or it has been determined and makes it a final decision what is what is your position that before they sent  letter they would have had to contact him and hold a hearing or give him an opportunity to be heard before they made the decision to transfer him that is is that your position correct under which law are you making that argument under louder mill in some cases that i should have cited in my brief and i'm going to provide those matthews versus harding won't get i just say here that's not going to use a lot of good in this argument if you want to have additional cases cited you can send us twenty a j letter although by custom we would get that in advance so we could look at it so as would your colleague here so it's not going to  any good for you to tell us those cases now all right we don't preach it that loud or maybe we would be familiar with the women louder milla stablish has the right to a pre death probation opportunity to respond and he didn't get that louder a pre death probation hearing and louder mil the case was about a pre depravation opportunity to respond i'm using hearing kind of loosely you get notice of what the allegations are and an opportunity to respond whether you get a hearing is a flexible concept and in footnote twelve of loudermilk they note that whether you get adequate pre deprivation procedures depends in part on what the post deprivation procedures available are under washington law the way it should have happened is he should have received a notice of probable cause under twenty a day three hundred and then had a chance for a hearing wasn't titled to and the ninth circuit has developed that in several cases where you say under federal law it's not enough to send a letter saying you're being transferred and if you want to appear at a hearing not that's not enough you feel he was entitled to more than that under washington law under federal law and under washington law but federal law based upon the analysis and matthews versus eldridge would have given him more of a right to come in and respond than just after the fact to being able to informally discuss it in an executive session where he was unable to call any witnesses get a neutral decision maker or cross examine anyone the the district court analyzed the due process claim of your client under state law correct no they also considered louder mill and i believe it cited in the i thought it was pretty clear from the record that the district court decided this case based on state law well as i recall the order does cite louder mill and deidre is allowed or mill analysis blended with washington statutory law so i would argue that the district court relied upon a state case that had an interpretation of louder mill similar to what i'm arguing here ok right that that that we're not bound washington court of appeals now mrs lapham eloquently you are not but it does a stablish a clear right because the top and his school district when they argue for immunity can't say well that's a state case interpret in federal law a state case interpret ing a due process right and unequivocal a giving a right to a pre term a nation hearing gives a person a clearly established right and he had a clearly established right to a pre term a nation hearing and an operative hearing meaning an opportunity to respond what case what federal case following loudermilk says that an individual in this circumstance so why not just send the case back to the district court tell it to apply federal law and you can cite all these cases in your opponent and respond to them because we'll be another fifteen months potentially out from the district court process unless things go faster and i think the district court did consider louder mill your honor i think when it looked at the test i think it looked at what the court of appeals had done in reviewing the loudermilk case i think they understand so if i may cite the two cases and i can follow up with the personally way we're going to let you do that is to write out on a slip of paper the court room deputy will give to you the citation to those cases and provide a copy to your opponent and he will be given an opportunity to respond to those cases i'll tell you that's what you want to do do it i'll do that your honor but i  sent him to us and as a twenty eight j letter just a pleading yes i will do that and the process that he ended up getting at the hearing was also deficient so we're arguing that there are two basis for the due process violation pre term anation post terminations the district argues under brewster vs the board of education that this is similar to a case in which a teacher's salary is being  during a time when a new teacher begins in a school district that's a completely different situation under the state issue and the property interest involved here he had a significant interest in the right to have a hearing and to continue employment as a principal absent some reason that the district gave and that he had an opportunity to respond to ok so a little bit of time on the retaliation excuse me your honor would you like to spend a little bit of it goes back to the district court for determination maybe even in front of a jury you understand i do understand that but then go ahead and respond to the question well but that doesn't mean that the analysis isn't the same whether it's  i think what you're getting at and i would argue the first amendment part isn't an extra kabillion are twined to what's before the court today which would be the qualified immunity in the due process but if the court is going to reach the first amendment issues the first amendment here because there are factual issues and those are going to be left to the jury is that your position and it's not necessary to the interlock atory nature of the decision in this case on the qualified immunity  so on the if the court does reach the first amendment issues i would argue that there's two different ways to look at this as the court recognizes what really set mr cern off was the letter that mr royal's attorney sent to mr crna regarding a violation of washington law in the course of the valuating mr roybal the letter was not in the chain of command and i'll show you all the admitted facts district admits it was outside of the chain of command crna said that himself the district admits that and mr crna said he felt betrayed when he got the letter now he says he didn't upbraid mr roybal didn't scold him or anything like that but immediately after that weddle mr roy bowles principle watch him and she then ends up during the course of a year taking notes on what he's doing now the district later claims that what she did was the basis for the decision to transfer him to a teacher position but ms weddle says i didn't do an evaluation didn't observe him and no part of what i did had any relevancy to what the district later did in fact the reasons for the transfer to the position she admits weren't even done when they sent them a fifteen thousand and fourteen letter to him after that she got together with larry davison the human resources manager and they started writing up the reasons for the transfer after the decision had been made to transfer him so on the first amendment issue i would argue that ng says that the right to speak to an attorney a protected right and the court has ruled there's a factual issue so i think that's correct if the court looks at the other aspects of the speech and engages in the five step analysis wondering i would argue that it's not a matter of private concern it's a matter of public concern when someone goes outside the chain of command they don't have the obligation to report to their superior end up person to whom they're reporting mr stern in this case and then we'll have an opportunity if if top initial district wants to file up to three pages response or additional cases and you can do that mr moberg all right thank you selling part of a lot of mail i think is page five forty six where it says the essential requirements of due process and all that the respondent seek or the court of appeals require our notice and an opportunity to respond goes on to say that simply that they can read that the principal ribal could respond either by written or oral notice and that importantly they say that to require more than this is a prior determination would intrude on non war to the extent of the government's interest in quickly removing employees i know of no case that changes that pre term anation requirement i know of no case i'll be happy to read the cases through that requires any sort of an pre term anation evidentiary hearing and i don't think that's the case but i think counsel is also saying that the post terminations hearing was defective and that he wasn't afforded i believe i heard him say right to call witnesses what do you think about that argument in a lot of mail does talk about the level of the pre term nation hearing is somewhat depende on what post terminations relief is available there was a full panoply of post terminations rights available we then get into the state law question of whether or not an assistant principal could have veil himself for those post terminations rights or not  and we've argued that he cannot under the statute but he does have the right to be transferred to the position so let me ask you this because it is a question of federal law  because we can affirm on any ground even if it's not one of the district court do you think the record is sufficiently developed here that this could be decided by the court of appeals or in light of the arguments that  both counsel has made that because the district court if we believe it did not analyze it under federal law that we should remain at the district court i think i think the record is sufficient to decide whether there was a notice an opportunity for mr roy ball to respond when it was determined they were going to transfer him to the subordinate position i don't think that record changes and i think that this court could make that conclusion that that is sufficient  that he had a sufficient opportunity to be heard and to provide presentations represented by counsel the time of the board meeting and as i understand it was given every opportunity to put to give to the board the information that he felt why they shouldn't do this and i think that that the argument is a little semantical this is well the superintendent are given him notice of the transfer and this was a reconsideration that's not the process a process is a superintendent gave him notice of the transfer and then he has a right to both discuss that matter with the superintendent and to discuss it with with the school board and the school board then had at that point he had the opportunity to explain to the school board why he shouldn't be transferred a subordinate position so i think that the louder mol due process the process that was due was sufficient and met and i do agree that the court did mention louder know are fifteen just generally for the proposition of of the rights but that the analysis of the court was more focused on the process of the state law and not the process of law so i believe that the court