of a motion to dismiss a finding that my ninety five paragraph complaint failed to state a claim upon which any relief could be granted in this case the  is the only trooper that is working across the entire state of nebraska late at night when night or in the early morning hours when he tries to initiate a traffic stop and the person that he's trying to stop was being uncooperative and so he called the pursuit and he called in to the to his dispatch and let them know a pursuit was going to occur as a result of a pursuit there's a pursuit critique that occurs any time there's a pursuit and when their pursuit critique under the policies and procedures of the nebraska state patrol it's assigned out to a move to try to knock a car out of it to stop the pursuit that was the initial finding in the case and after the person had done the pursuit critique then he was pressure to change his findings that there was not any violation of practice or policies in the case and so as a result of that he did there were there were changes made and they found that that he violated a rule or policy as a result of that occurring trooper seckel berg began filing a grievance which is what when does when they believe that there's been a violation of policy  and what then occurred is the nebraska state patrol would take his grievances that he was filing in circumstances they'd wideout they would change what like the the original pursuit critique for example they changed the outcome of that they they why did it out and would not give him a copy of the original document which led to the grievances that occurred in this case submit that when you look at the record as a whole in this case that true perspective or does have causes of action under the various allegations that we've brought forth i would note it took the court two years to finally come to a final judgment on this case so that we could file an appeal the first claim that we believe apply is that there is a fourteenth amendment procedural due process claim and what we're saying is that as a result of the whiting out the changing of evidence the pressuring of people that trooper stuck oberg was  was not given a fair arbitration proceeding in this case now what is the property interest at stake here the property interest at stake is trooper stachelberg job to his kept his job at all that is true however his his job became so uncomfortable that as it now sits he's no longer in that job but he did keep his job but he was suspended for a day or didn't make the best way to ask it did the arbitrator's decision make him hold in regard to supplying it well i believe what we alleged in the complaint is that he won for the most part with the arbitrator i think that there was some finding that some of their i believe that ultimately that he was found to the pursuit that they found that he did violate rules in the pursuit so in that circumstance he didn't really win but as far as losing actual money i'm not sure that that's the whole issue with that but that's the first part of it and i do submit to you that the harassment that he endured after that is something he had a hostile work environment that he was in after that people would not speak to him his kids command staff wouldn't speak to him really and the other troopers that he worked with felt you know an easy to spend time with him or you know have the collegiality that we enjoy and in a workplace and so on i behave as factor tayshaun do you think you're it i think you make a claim based on  an interest in reputation you make such a crime i do make such claim but that reputation claim is much different all that reputation claim goes to the fact that even at the final arbitration hearing they tried to brand trooper stachelberg a non that he was he was not believable or he'd testified falsely at the arbitration hearing and they the the arbitrator said that's not true and after that and after the filing of this lawsuit they brought an internal affairs investigation where they said you testified falsely at your arbitration hearing and tried his bond i mean that's defense attorneys would know that he'd been found and believable don't we have case law that appears to indicate that those statements have to be made publicly to affect reputation and if they're all with the in an organization that doesn't count and especially here where he wins a judge i disagree with you and first of all let me let me point out that he did not win from the internal affairs investigation because what that what colonel ri did with the internal affairs investigation is he buried it and said we're going to allege that you are dishonest and you're not going to have a hearing on this until the civil action is finished and so he has a cloud over him of the fact that he has been alleged to be dishonest and i would submit to you that if you have a trooper that is alleged to have been dishonest you really ought to be given that out to defense attorney such as myself when i'm criminally defending someone it would be helpful to know that this person is dishonest and probably brady material so i would say you don't think you need a finding of dishonesty versus just an allegation you think that an allegation internally would be discoverable in a criminal case i would submit that it should be i'm not sure i ever got one of those maybe i should go back and look at some of those five that's that's probably true i never got one of those myself but i would submit that that that was what they were going for and they put the matter in abeyance and did not allow him to go forward and clear his name of the allegation again that he was dishonest no way for the recent house and the arbitration and the hearing and everything going on doesn't that allow him assist sufficient way to clear his name no judge what i'm telling you is just there was yes and he was cleared in the arbitration but after the arbitration they went back and did a new internal and phares allegation saying you lied during your arbitration and even after that a finding had been made that he was that he was that the arbitrator was stand i'm not finding him to be dishonest then they tried to bring it up again and how many times mu he defend himself how many times does he have to do that should that should they not either appeal the arbitration finding or live with it and then set off a new the last that you're alleged he would he suffered as a result of the internal affairs complaint is potential the injury to his credibility correct at a subsequent in a subsequent today is there a case do you have a case that tells us that that is a that that kind of potential harm if it is if if it could that that would support there are that would be an injury that would support a this kind of a constitutional klein there are plenty of cases to say that branding someone is dishonest i think your question is is does that brand him dishonest since they've made the allegation and that's not allowed her to my question is i'm asking for a case that that is similar to this situation that we could that we could read that would support your this particular aspect of your of your complaint cases or there are a number of cases that say if you've branded someone to be dishonest that in the process of an employment matter that you should give them a due process hearing to to get that off of you yes i mean what do you what what a number have cases there would be what would what your best davis for example the seminal case about where liberty interest comes up in employment cases and then moving on to you you judge benton and may please the court i want to begin before i address if several of the aspects of my friend's argument with the where we began in our sit in our case summary and that's quoting the district court's paraphrasing of the supreme court decision in guarneri in the first in this is that j eighty one observing that what the plaintiff has alleged here is precisely the sort of everyday employment dispute that the supreme court has held as explained lacks sconce to two tional significance that with you can't transform a speech you can't sort of avoid the the public concern requirements of a free speech retaliation case by dressing it as a petition cl petition claim and i think the plaintiff does do so at times in this case but the main argument that i want to address today is just pointing out that in two careful thorough and comprehensive  opinions judge gerard here reached the right conclusion which is after stepping through each of the plaintiffs several claims and he's alleged several under a variety of different provisions he has failed to allege sufficient ride with the chaplain and on a ride along why isn't that enough oh why can't you make an inference that the reason that you would be riding along with a chaplain would be for religious based reasons well you'd have to do it you'd have to create a rule that says that basically any kind of interaction with a chaplain is a person a violation of the establishment clause and i think that would that would conflict with the presidents of this court in the supreme court that say that and this is what you're cited that to make a showing on an establishment clause violation there has to be some kind of showing of coercion so so you don't think that there's any the complaint sufficiently alleges a requirement that he ride along is that what you're saying well i'd judge kelly i think you have to i think you have to analyze the coercion not at that point but rather on the actual interaction between trooper stachelberg now mr stachelberg and the chaplain himself and that do you think it would have to it's not just the requirement that you be with the chaplain on a ride along with just sort of unusual i think you could infer that the chaplain is not always on a ride along and i don't know if this record could suggest that i mean i understand the point i don't i don't think that the plaintiff has alleged anything  that this court could could could sort of make could draw out that inference from what he has pled so so you think that the complaint would have to allege what actually happened with the chaplain it can't just be that you are required to spend time in a can in a trooper car on a ride along for the evening with the chaplain without anything else correct i mean it took two to play out a hypothetical that is not in the  record and it's not even one that i dressed in my brief but on those facts you could you could potentially say that if if the colonel had decided that he wanted the chaplain in new chapel and as part of their sort of introduction to the law enforcement agency that he or she is now working for to see how the cops do their job and go into a ride along it would be required that the point that the that the officer have a a religiously ordained chaplain with him in the car for a few hours so the plane as it reads that's the reason it reasonable inference or equally reasonable inference is that it was for the benefit of the chaplain as much as it was for the benefit of the i don't mean to inject my hypothetical into into their at all i'm just i'm just saying that i think i don't see a legal distinction between those two scenarios and here as judge said and concluded there just hasn't been any allegation whatsoever of any kind of proselytiz g of anything other than the fact that father thomas and was just sitting in the car with them so i think to to draw from that that there's been a viable allegation of an establishment clause violation would would would be somewhat inconsistent with how this court and the supreme court have cap and what needs to be what needs to be alleged for a claim like that to get over the starting line does the complaint a ledger and for how long the period of time was i know it was for a shift judge bent and i'm not sure it's an eight hour is that probably the current state or twelve hours or something like that i do i forgive me i'm what it does say for a shift so we do have some time frame yes yes yes but again that is short of any allegation proselytising any allegation of what they were what they were doing in fact and that comes in this is sort of a broader point about the viability of the rest of mr claims that comes not just on a on a dismissal of the first complaint but after judge gerard granted trooper stachelberg an opportunity to amend the pleadings and address the factual deficiencies the judge wrote i think very comprehensive in his march thirty first two thousand and sixteen order set out and still the second amended complaint lacked the kind of the kind of factual allegations that would have been necessary to just a couple points regarding mr miller's arguments on the procedural due process claim her claim is appears today at argument to be now again that the grievance process was deficient in such a way that it violated mr stachelberg procedural due process rights of the fourteenth amendment except that as judge found not once but twice the grievance proceedings were appear to have been decided in his favor now he has what about her point that some of it wasn't to help help me with that because i was just assuming like judge that he really won that going well i don't know that that's  v i those concluded as judge said in his favor i mean there's no allegation in the complaint that any aspect of that deprived him of any interest he wasn't fired in fact and i  think this is important to note because i rechecked the complaint while i was sitting during my friend's argument she made a a point that he was possibly suspended unless i'm missing something i don't think that was an allegation that was has alleged there was an initiation of an internal affairs complaint by the colonel against trooper stuck a bird regarding a finding of dishonesty that was that predated the kate this case which was originally filed in state court  had initiated a series of litigation another one in the nebraska commission on industrial relations and at the same time this case was picking up steam and was removed federal court by the colonel don't look at the record in this case we are in federal court i know it was a motion dismissed but we don't have like the arbor to arbitrator's decision or those sorts of things anywhere in our papers right now and they weren't before the district court right not before the district court where there in celery papers referred to in the complaint that did get before the district court if you know what i'm referring to you know sometimes when they're referred to in the complaint they get in during this motion dismiss process in federal court i don't believe so you're i think that the that judge gerard did it did a careful and comprehensive job of keeping his analysis within the four corners of what mischief or miller on behalf of mr berg actually file and and on for all of those points of the first amendment stablish mclaws claim i'm sorry before i move on to that very briefly i do want to address the reputational argument that the court visited with mischief or miller there are not cases that say in this context that a reputational harm as a due process violation of the fourteenth amendment is viable in fact this court's this court's precedents say the opposite if you look at the jones vs mcneice case that case involved e mails regarding a a a substance abuse counselor for the nebraska department of corrections to other state agencies saying that they they were not that th an unethical conduct and that was not enough there was other evidence involved in that case it wasn't going to be admissible so it didn't it wasn't eligible to support the claim but within that case and if the co firefighter misconduct another one was a public a publication of a teacher by a school district of a teacher having engaged in child abuse those are the kinds of things that have been recognized by this court as being enough from a factual allegations standpoint or from having happened standpoint to support a fourteenth amendment reputational due process harm claims this case frankly just does not come anywhere close to reaching that threshold and again if if if if his claim is that the reputational harm is as a result of this in kohut internal affairs proceeding and i think we've discussed this at length already but i that that simply is not enough i will conclude where i understand mr geoffrey miller is going to begin a rebuttal which is an establishment clause claim and again indicate that under jackson two orders do not stand for the proposition that simple sort of nothing additionally alleged involvement an exposure to a chaplain who may have as a component of his or her duties for a governmental organization some religious duty some religious obligation without more there is not a per se obligation so i think that mr miller is asking you to tread ground that this court has not gone to address the coersion aspect mr stachelberg trooper second was given a work improvement plan and it had five or six different terms to it and one of them is to go on a ride along with the chaplain and that is coersion so he was required by a supervisor to do that and i think that that is course and that's a violation of the establishment clause so in your view just the coersion is just being in the presence of the chaplain and you think norfork he was in trouble for proselytizing so he had a history of that i mean i think you say how long ago it was you say the time difference between when he was in norfolk and was some time ago it was two thousand and eight i think thank you so i think that  there is at least an inference and they they should defend by filing an answer in the case and saying oh it was holy not a religious purpose that we told him to go on a ride along with the chaplain i mean there's no other purpose for him to go on the red line with the chaplain in fact it's alleged in our complaint that he asked the chaplain why are we here and the chaplain couldn't tell him so i don't think that did that the chaplain has to say the rosary when he's in the car with it's your you've got to go on a ride along with the chaplain then finally as if you have a case for that forget proposition that being merely being in the presence of clergy or someone who is at least a ge there were a number of cases where it talks about even a a meetings have sometimes been held because that's a god thing so that in my religious section it cites a number of lets is where your call worst to be with i mean i don't think it and so when we read the cases are going to be there's going to be a case that merely being the presence in the workplace yes is enough and then the final thing that i wanted to comment on is we have a freedom of speech and a freedom of association case here that we've overlooked in our argument this morning and i think it's clear that when trooper stachelberg applies for an executive protection position that would have paid him twenty to twenty five thousand more a year and colonel rice makes the comment that he needs to his comment was something to the effect of we don't want him moving his mouth around the governor and that's a quote in my complaint that is what was said and maybe trooper colonel rice will come and say he didn't say that but that is a first amendment claim and i don't see how we do not survive a motion to dismiss on the first amendment claim when there is clear adverse action that he was deprived of that position i also believe that the hostile work environment claim is throughout this case