it please the court my name is sam angel i represent madison county the appellant i'd like to reserve five minutes to respond to counsel's argument if i may to begin with i'd i'd like to direct the court to the first argument that we've made which is whether or not mr williams had a protected property interest in his employment this is an important issue that we're asking the ninth circuit to review how the idaho federal district court is handling employee employee manuals when it comes to protecting property interests and the district court seems to be all of us yes that it's difficult and i'd like this court to  affirm what it held in lawson versus them until a county and then lawson that's a case that stood for the proposition that an in an at will state a disclaimer of contract precludes a finding of a protected property interest  and so we're clear on what lawson held lawson is an organ case in oregon employees are at will in loss and there was an employee contract that had a disclaimer a disclaimer of contract in addition there was also some language in that employee manual that provided due process for the employees and an appeal hearing in addition there was some language in that employee contract or that employee manual that  allowed a probationary period of six months to a year are you familiar with the mitchell versus sinulog case in idaho yes that seems to be fairly similar to what you're arguing that's idaho's supreme court case from one nine hundred ninety four which says the presumption of an at will employment relationship can be rebutted when the parties intend that an employee handbook or manual would constitute an element of the employment contract whether a particular hand does so maybe a question of fact unless the handbook specifically negates an attention on the part of the employer to have it become a part of the contract right and that is that  unless there is a a provision that creates a contractual relationship in the employee manual then the concept is that the out well status should be preserved in idaho and that's important because in each of the in this case particularly with the madison county personal policy there is a good clear disclaimer of contract very similar to the one in lawson and this disclaimer has been reviewed in various district court cases in idaho the harmes case the saumur case and the brown case and where the idaho district court has become confused the call of duty to go yes i would estimate that of the idaho counties and cities there are many of them that have that contract disclaimer language in them it was a little bit more prevalent maybe a decade ago for there to be contract disclaimer language as opposed to language that specifically says you are an at will employee i think that employers thought that that's a bit redundant considering the fact that it was very clear in idaho and our common law that you are at will employees there's also some language in the same document that says except as otherwise provided employees will not be suspended it's cetera except for cause related to performance of their job duties correct that seems to point in a different direction and that that's the important thing with so if this court gets back to loss and there was the same type of language in the loss and case and loss and there was a language that said that employees would only be disciplined for certain violations and that they were entitled to an appeal hearing and what this court held in lawson is that the disclaimer language overrode that that was affection really would have been set and have being an employer policy rather than a contractual obligation i think use that distinction to be drawn it doesn't make it a not not a policy it just means that you can enforce it as a matter of contract exactly and that's important because we want to allow counties and cities to offer some due process to be written the wording that person is not a country correct i think that that's what los i think that's what this court meant and lawson if you'll recall the disclaimer and lawson didn't take away the employee's right certain limitations on on how they would be disciplined or their right to an appeal hearing it just said that they would not be contractual employees this courts it reversed the district court in lawson saying because  district court ignored the importance of the disclaimer in a moment till a personnel policy that to me is the key issue in this case there should not be a plus one situation where the idaho district court has said well we recognize that there's a disclaimer in these policies but and we're not going to sort of recognize that unless there has also been some other happening such as a an at will  acknowledgment in the actual signature line of the document or unless there's a situation where well if you're a probationary if they have a probationary period then that might suggest that the employees were at will during an probationary controlling a stroke i mean the sheriff is looking at attempting to follow what the sheriff is not by his decision and each individual case changing the policy itself i haven't heard you mention this  motion for summary judgment was heard by the magistrate is the denial of summary judgment a legal ruling as to anything other than the existence of facts for trial well that's a good question i don't know and will not i mean obviously if  judgment is granted on an issue and nobody challenges that then whatever it is that was granted remains in the case unless it's rethought by the district court but if the district court says summary judgment let's keep going what is determined as a matter of law if anything i would suggest almost nothing and that was that that was our position going forward is that the court the court denied our motion for summary judgment to dismiss some of his claims the court said and implied that there were issues of fact on this protected property interest claim and then send it to trial and so we understood at that point that we would be no because she equivocated on on that and and one of the things that she said is quote it is at least disputed as to whether the notice had any effect upon the terms of the madison county personnel policy which indicated an introductory period was for only one years she was talking about the fact that mr williams was placed back on probation as a form of discipline for a previous matter and when she looked at that she thought well at least there is an issue of fact as to whether or not that changed his employment you're saying you didn't object because you thought she was leaving the matter open for trial correct exactly and then one and then one thing was on november eighteenth of two thousand and fourteen between that time and the district judge adopted the findings of the magistrate in february of two thousand and fifty correct use you hadn't filed anything in that period no and then it's important i would also mention your honor that when we arrived at trial we did submit objections to proposed jury instructions one of them proposed by the plaintiffs included the language the instruction that he was a he had a protected property interest we have objected to that instruction on the grounds that it presupposes the plaintiff travis williams had a reasonable expectation of continued employment and i took the further excerpts of record thirty thing that bothers me about that is now you are right on the  admissibility of video that the plaintiff wanted to present isn't that correct i fire recall correctly yes however if i recall the summary judgment deadline was at or near the close of discovery anyway first off and so discovery had been completed at that point and second the plaintiff always understands that they have the duty and the burden of proof on each element of the constitutional claim they would have conducted their discovery on those claims up until that point and have an opportunity to present that evidence at trial so i don't think there was any prejudice to the plaintiff in an addressing that issue as we did at trial and i would just reiterate that not only did we file that written objection and there was a there was a jury instruction conference held off the record and then we went back on the record and reiterated our objections to that as noted in the written instructions so i do think that we properly preserve that and i think that it also under night search i'm sorry did the jury instruction that you  that part of it is no it does not on the one related to the due process claim on the substantive due process claim it did include the language of the substantive due process claim the plaintiff lost  i sure that's correct absolutely but the problem with that that i have a little bit is that as we worked through the jury instructions the court proposed a set of instructions at the conference and we started to work from them it becomes difficult because they move over time when you're preparing for trial in those hours leading up to the jury at the time of the instructions are given i know that we intended to have that in that i would have wanted to have that in and at the court's proposed instruction had had a sentence that said mr i instruct you that mr williams had a protected property interest and we objected to that because we didn't believe that that was it that was number twenty four yes and then the court ended up giving instruction number eleven and so we were intending to object to both the plaintiffs proposed twenty four and then and that's in our f e r thirty and then also what was given as final jury instruction number eleven thank you did you want to save a little  court my name is dan caspar sum and i'm here today on behalf of the appellee sam cross pelham travis williams just briefly i'd like to address the argument that my opponent has just raised in addition to the fact granted the motion for summary judgment in part to say there's a protected property interest that's something that is presumably objective all true but i don't understand how the d summary judgment becomes binding with respect to whatever the reasoning is behind it well except that clearly judge dale found i mean she made that factual determination in terms of even though she did night summary judgment on that she made this factual determination she can't make a factual determination on summary judgment the only question is whether there is an issue of for well except that what she said is and this is protected property interest but at the top of the page and sounds at least it's disputed and i guess i'm just having difficulty seeing that the denial of summary judgment it means that you can't later that now that you aren't your proof later on all the elements of your claim one summary judgment is to none and the case goes forward and i guess i just have difficulty seeing why they were object then instead of those phases of trying the case right so i think what's interesting here is the hollis case actually was the exact same counsel that is before you now so there had been you know  history with regard to the district court and what it had ruled in the past are you familiar with the xylem case that i raised with opposing counsel just vaguely ok as i read that case it appears to hold that under idaho law an employee handbook contains a disclaimer that it is contractual it isn't contractual right so it would seem to me that the magistrate judge was just wrong as a matter of law and i and i understand you're arguing that the defendant doesn't have the right to raise that but what they did object to the instruction correct so this is where it's unique that's yes or no or do they object to the instructor a objected to our instruction ok but they filed their own obstruction instruction and asked the court to give their own instruction never requesting that the jury find a protected property interest so they didn't even ask for what they're now complaining on appeal for the jury to find the only time they ever asked for an instruction that the jury determined whether he had a protective property interest was in their substantive due process it was never raised contemporary of contemporaneously before the court so that's a different theory of waiver your theory is that because they didn't offer a proper instruction they don't get to complain about the instructions right i well i think there's too so number one i think they had an obligation to object to the report and recommendation they certainly raised the bias issue before the district court but they did raise the protect the property interest so even if they thought that the magistrate had somehow erred in making this determination they had to bring that to the district court because  number that has a certain traction to it on the surface but first of all on august thirty first you filed a motion let me address the same question trial or the day before trial but the point is they made it clear before the trial started that they were still objecting and even if they had filed formal objection and then when they filed their trial brief on the fifteenth two weeks so the point of the motion in limine a was and not to raise that issue again what i was trying to prevent was from defense counsel using the phrase at will to continuing to refer to create some confusion with the jury there's no you did not file a motion before the motion and lemony you saying we are entitled to a partial judgment as a matter of law that there was a protective property interest as i read it you did not make that motion as a personal summary judgment mo issue i understand why they would object to that because they still wanted summary judgment on that question but i really have trouble seeing how you essentially are asking and achieved at the court partial summary judgment in your favor without ever having asked for until you until you put in your instructions but the rule would allow us to a spontaneous even direction of summary judgment as well and so i think it was well it wasn't it was not clear that that's what the reporting recommendation was the report recommendation ended by denying the defendants motion full stop the instruction that they wanted they got the very good instruction that they asked for and you got the instruction saying there was as a matter of law or protected property interest and that they objected to right but from the perspective of what was going on in the case you have to look at the footnote that the magistrate dropped in that decision we had evidence of the county attorney having a public forum meeting talking about moving away from the four cars policy to go to one a policy the sheriff has a mid that there's an at will policy that's a great jury argument and that's what it should have been if it is but by not raising it they've kind of sandbagged both the district court and  put on that evidence we were prepared and we will for trial that they objected to that instruction and that they thought you have to prove what i knew before trial is what they asked for in their instruction they were raising those objections but it didn't make sense with what they wanted in their own instruction and tell you the truth based on the evidence that we had in support of that at four cars terminations and the magistrate's recommendation that they were on shaky ground by continuing to object to this i was shocked that they raise that later i mean if this was really an issue when we had our meeting with the district court and we went over jury instructions why wasn't there something raised there  ruling on the motion in limine a on the the first day of trial and then we didn't get the final jury instructions and tell later and i couldn't tell you what day that was but it was probably maybe a day or two which is typical before we actually submitted it to the jury but but setting all of that aside there is there is substantial evidence i mean and i know the jury didn't get to decide that but to not stachel evidence doesn't equate to summary judgment in your favor substantial evidence is what would support a jury verdict right and i understand what what the court is saying is my point is is that there had to be some point along there and certainly there's clear law that indicates that if the jury instruction that you've got to actually object to the jury instruction and i can tell you what was said all was said when when judge never gave those instructions was that we'll just stand on our prior objections and we ask that the court submit their instructions so it's very difficult to get here at this stage and then have them not requested in their own instruction but claim that somehow it was a district court there if this court were to find that this issue is no way your position is  what the judge made the right decision yes and if the judge made the wrong decision is it your your argument your backup argument that most a waiver and there clearly is no jury finding as to that issue it's possible they would have to go back and find that that narrow issue i'm suggesting here that it's not a matter of  correct because i think there's a difference between contractual employment and whether an employee has a reasonable expectation of continued employment they're not the same thing in the whole this case i think the district court carefully analyze the difference between those two and that's why it relied so much language that's exclusionary language except as other wifes provided here in that you have four costs and i think it's even possible without the jury finding that i mean there's there were so much evidence even without the jury being asked that we have sheriffs clingers own process where they've granted this due process hearing the opposition response to that as i understand it is that we're not talking about negligent conduct are we talking about intentional conduct the items that are necessarily intentional acts i mean some of it isn't just in the manner in which they went about these things now clearly i think overall intention was that they wanted to find a reason to get rid of mr williams and th what was what was negligent as distinct from intentional in your view what was negligent light as distinct from intentional well i think the fact that the the manner in some level of intent there but negligence even in the policies that they're providing i mean the way they did these hearings they didn't even allow any kind of cross examination sure player has already met with you know his people and has made his decision on that part of it if i could quickly just in the few minutes are seconds that i have just on the front pay issue did he did find that my time is out may or quickly respond the reason that we think that that is an abuse of discretion is because that reinstatement was incredibly valuable the deferred compensation that's what decided to the bluhm case because we thought it was so helpful deferred compensation is not like anything else you're sort of like building it a little bit at a time and so you have to at some point say if you can't reinstate what's the monetary equivalent and that's where we think there was a problem number one the tuition assistance no evidence that it benefited williams at all because there was no evidence to pay for his kids and he was making twenty thousand dollars more a year but he could retire in four and a half an hour seven a half so what we're really arguing used to say it not that it shouldn't possibly be an offset but it should be the same timeframe because i think you can understand your position i believe you have a little rebuttal time we had the language that required the plaintiff to prove a protected property interest in employment on the procedural due process instruction we omitted to include that however the plaintiffs included that in their proposed instruction which we objected to because it presupposes that mr williams had a protected property interest so basically your position is that instruction number eleven was perfect except for the inclusion of the one sentence at line sixteen and seventeen  it states all the correct criteria and elements but then says i instruct you that he had a protected property interest and the plea first element therefore requires no proof yes and if that sentence were gone you were happy with  and as the judge created those instructions and gave them to counsel to review we were able to review those and identify that that was the correct language with the exception of that separate instruction that you have noted judge agree were and so we objected to that and so while that wasn't my most artful sort of jury instructions that's the that's the area that we were headed to no let me turn to another topic what is your response to miscast person the argument about why she was hurt by the judge's ruling on front page that there would be no front page first of all i would briefly say that it's not a front page issue because mr williams has completely replaced his employment he went from earning fifty thousand at the sheriff's office to earning seventy thousand it is it is his next employment what they're asking for is front benefits which i don't know that councils even cited solid case law that that we give that under the may call dr i guess so but separate from that mr williams had other benefits that judge who now are looked at and said this is effectively making him whole the judge did a good job of analyzing the facts on those points he recognized that mr williams was making twenty thousand more per year the mr williams had different but similar benefits to wish and reimbursement for a one k matching and that there was a substantial risk of windfall if he awarded any front benefits because of the fact that mr williams had benefits available to him and in addition judge cornell recognize that if mr williams goes back to employment at a sheriff's office or in law enforcement and idaho those percy benefits the state benefits would be reinstated and he would then be able to retire with those benefits so that created an additional potential for a windfall so he denied any front pay and with us the court to affirm that