retaliation but it has sort of an interesting twist them is nick lowe who is a da team clerk for clark county and the district attorney's office said and this is a quote no wonder shit like friday happens this was taken by the appellee used to be a reference to the standee hook shooting in connecticut which had taken place about three days prior ms nicholas has always maintained that this was actually something about  one of her coworkers who had not completed their tasks their work tasks on the friday before and caused a delay in consternation in preparing the cases on the following monday morning so what was it in reference so was that a reference to things being screwed up at work of the calendaring system was out working that is what ms nickel or has maintained that she was talking about but interestingly the appellate is the defendants in this case took it to be a reference to the school shooting in connecticut and it's a little bit surprising to me that they came to that conclusion because it she didn't say anything about sandy hook or anything about shooting or anything having to do with it but they took that to be a reference to that in some instances the pelleas have said that she made a threat there's nothing objective lee that is not a threat it's an observation but apparently they found it in this case because while she's saying i was talking about a workplace incident which you know my not rise to protect a speech on the first amendment the appellee is considered to be a statement about an issue of national importance this was all over the news it was going on throughout the country it was a was it was being spoken about in the press and by people over water coolers and everywhere they took it to be an issue of national importance and when they considered it to be that issue of national importance and then they take action against her then it becomes the first amendment violation because even though i mean the communication is a two way street you have a speaker and you have a listener the speaker in this case didn't intended to be that way but the listener took it as being a reference to an offensive rest reference to the sandy hook shooting and then imposed punishment on her over august for her damages that damages humiliation it did she lose wages or anything like that the and again we're here on a twelve b six dismissal just curious what she would be yellow the allegations are that she did suffer extreme emotional distress that's in the complaint you talks about humiliation embarrassment being presented so that she did those wages and actually she did because and that's the next step in the process once they take away her badging privilege so that she has  to wait a centrally to go into the building once the marshals are present to do security screenings she loses the opportunity to work overtime which was available which she had gotten before you were she'd been working for the d office for nine years up until this point that she had in those are ordinary wages she she dated they mounted or anything of that you know i'm not completely sure i think that her suspension might have been with pay so so  the period of time about three weeks that she was off of work completely two to three weeks she she wouldn't know still she still works for the d a s office right wreck yes yeah so what's your what's your best case that says that you know she says she said no this is just all about work and say the listener took it as mean she's referring to sandy hook so therefore it's a constitutional protected speech yeah i would he have a case i haven't found  idea i haven't found anything similar to this it really does seem to be something of a unique situation where somebody has taken a statement that someone made someone in authority has taken that statement blown it out of proportion understood at to be something that it never was intended to mean and objectively doesn't say anything about and treats that as offensive speech about a issue of national importance and then imposes  the decision makers on her badge and privileges and the like were not county officials is that correct or incorrect so the my understanding the judicial district court is  ultimately is answerable to the state that's a statewide district court system the county employee in this case misled her mind she was she worked for the d a s office which is the county but she was your subordinates of the da was she is there any evidence in the record that she was a policy making official in the record i'm not sure and i think that might be something that we could amend to show because she was a director or system director level where she had certainly great influence on  the motion to dismiss was never addressed by the court the court just dismissed it without prejudice but didn't actually say you can go ahead and amend so the one thing i would like to mention about the fourth amendment the search here  the searches that went on after she got her clearance from the psychologist by the way their doctor dr morton arrow cleared her said she's completely fine that was by the end of january twenty third teen they continued to search her until november of tw and the searches become a reasonable once she's been cleared by the psychologist and once it's been determined that she can go back to work or any other employees searched not that not that i'm aware of not that i've been so they have  x rayed they don't want to know and says she's the issue was singled out not to get to it to have a different level of search the other employees correct we have government officials that were using otherwise lawful search men mechanism and they were using it as a weapon to intimidate her to chill her speech and to punish her for expressions of speech that they felt that she had made and that renders the search on reasonable under the fourth amendment the fact that they continued on for all nearly four years they continued this and at least three and a half of those years they knew that nine your employee never had any sort of problems like this before got cleared by their doctor you know they they want to head in and said you know we understand ok you can come back to work this was not a threat this was not anything about nature in fact there's a there's an e mail where they recognize this is not a specific threat but they continued to do this to her singling her out for your honour's may please the court lawrence vandyke on behalf of the pelley stephen dreier seven and with me at counsel table this morning is rob freeman who is the counsel for the other police in the case including clark county we're planning to split argument time what i'm planning to do is to address just the of the case issue your honor because i think that that is dispositive in this case mr freeman will address the court on the other issues including the merits of each claim qualified immunity except one as we argue in our brief on page twenty four we believe that this appeal can and should be decided on law honor from the earlier plenary junction appeal in the ordinary rule in this circuit in other circuits is that you don't give law the case affect to a decision in an earlier p i pealed but there's an important exception to that rule that's been recognized multiple times in the circuit and has been recognized by all of the other circuits that i'm aware of your honor and unfortunately it's not super simple to be able to explain the difference you but in order to do it here i think that when it should apply when the exception should apply i think it's helpful to go through the cases and  see why the exception exists and then you'll see them will see why should apply here now this court has emphasized that the reason why you don't normally apply the case to plenary injunction rulings earlier clear instructions are because they're quote often made hastily and on less than a full record that's from this court's two thousand and thirteen center for biological diversity case and the court is also emphasized that injunction appeals are often decided on something other than quote a pure issue of law that's from the two thousand and seven rancher case but when you compare this court's cases where it has applied the case to another p i appeal and where it hasn't i think you'll see a very helpful pattern so i'm a real quick go through this court's cases starting to sort of reverse chronological order in two thousand fifteen this court decided the rodriguez versus robin's case we cite that on page twenty four of our brief you know that this is not that the earlier decision was not appear issue of law it seemed that they were applying legal principles to the facts of this particular case well so i thought about that some your honor that you know every case has facts and every case you have to apply at a p r stage you have to apply those those the law to the facts and so i think when th court is talked about and when this in other courts have talked about something beyond being a pure issue of law what is talking about is as you well know the p p i stand down it has multiple things that the court can look at so in theory if you're deciding it on anything other than whether or not they've made  a the first what you call the first step whether or not you had can show a reason to like the success on the merits if you're signing it on some other for the standard then i don't think you would be addressing a pure issue of law that would be a pleasurable in the later case but if you are deciding it on that whether or not they've shown a likelihood of success on the merits and if the facts haven't changed at all in a show where this court has talked about that actually in the in the two thousand and three humanitarian law project case it actually addressed that where the facts had changed at all then and if the courts earlier decision is decided on a on a law applied to facts that haven't changed in the court in its decision says we're deciding this because they can't make out a claim under the law here then i think that i think it is decide is a pure issue and i think that so are you saying that if a court says there's a likelihood of success on the merits that's as am a saying the plaintiffs will succeed well and therefore that's binding on  rodriguez cases cite they're all these cases are applying the same standards so yes in multiple cases this court has said when there was a plumber injunction issued this court is later said you know what the facts haven't really changed and the law that we we applied earlier often hasty so if you look at if you look at the rodriguez case the rowdiest case in these very helpful there this court gave three reasons in the rodriguez case why it applied law the case to an earlier plimer injunction appealed exactly like you're saying and one of the reasons was is because the previous decision was not made hastily if you look at the if you look at this case it was not judge judge by bees and judge randy smith's decision this case was not made hastily at all don't make any decisions hastily well you know i've i've asked for  apply and if you don't apply the case i think the same considerations would be a reason why qualified immunity would apply here because if a previous panel found that on these cases didn't even lack legal merit then how could it possibly be that these things are clearly established as a matter of law your honor so i think the same concerns would go either way thank you we'll hear from your calling thank you ron or robert freeman here may please the court i'm here for clark county and kathleen lambert monta and i have four minutes and fifty four seconds to address what we consider to be the merits of plaintiff constitutional claims i know counsel described this as a first member retaliation claim at the heart of at the heart of the case and and as everyone knows and as you point out that requires the statement be a matter of public concern now the ninth circuit sitting in review of the plenary injunction found that her statement was not a matter of public concern whether or not a statement is a matter of public concern of course is a question of law and it's a content based test this statement is alleged to have been by miss nickel or about the conditions of her workplace there's case after case after case that demonstrate that that is not sufficient to afford constitutional protection this is not any well i mean you know the employer is entitled to to to limit the statements of public employees under circumstances where those statements would impair the function of government or they would impede or create a hostile working environments that's the way they took the statement they took the statement as some kind of threat i think judge by b in the in the previous hearing used the word postal they that's the way they took it they put her in a in a workplace violence program and they suspended her with pay she didn't lose any of her regularly scheduled pay they center for certificate of fitness she obtained a certificate of fitness council's brief concentrates a lot of his effort on the what happened after the certificate of fitness was obtained to the extent that's a concern for you today i'll say the same thing that was said at the play marion junction hearing in the same thing that was included in that order yes the should to go to fitness was sufficient to have her come back to work but it in no way required that the core the real decision maker  decide that she did it was a guarantee that she was not going to go postal again and so is the fourth amendment claim the plaintiffs view is that having been cleared for return to work  that there wasn't a basis for the the heightened search and that there wasn't reasonable suspicion so she has at least raised a fourth amendment claim what why is that wrong well the fourth amendment claim  category because employees were not subject to a straight of search and then she only has singled out for additional search well i think judge by be decided that maybe that was more in the vein of protection claim she she now you're talking to a different panel i understand i understand so did you help me understand why more suspicion or some sort of articulable suspicion is not necessary since she wasn't subject to the blanket  different level of search she got this and then she would then they changed their mind only asked her so she was obviously singled out as an employee so i don't see how the administrative search has anything to do with with her claim here she was singled out because her statement she was put in a workplace violence program they decided that that rate required a step up as you say a level of search there was nothing that developed after that that rig that relaxed that concern that the determined in trial right not the complaint would have to say as a matter of law the employer was was recent all which which seems unlikely well i don't i don't think so your honor i mean i was there well what i think is that if you were going to boy and all the employees were allowed to enter in a certain way and then in order to put a heightened scrutiny on her there had to be a basis and she claims there isn't a basis and it certainly seems like an up or for th well i want her a loser is a different question well i would i would disagree for this reason your word is allowed yes a ploy employees were allowed to enter the building they didn't have a constitutional fourth amendment right to enter the building without being searched the pushback here and i think judge by we talked about it at the plenary injunction hearing is the one rational consequence of this kind of argument is that everyone would have to go through a metal detector and if everyone has to go through the metal detector it was more than we don't like what you said well that's your theory that right that's her theory of the case her or her theory of the well her theory of the case is based upon an argument that they can't support with the law that this somehow was a sandy hook reference that was taken to be a sandy hook reference and therefore a matter of public concern and she was being retaliated against for that there's there's really not any argument that she was being punished for making the statement about sandy hook and that's all my time unless there are other questions you know me address any of the other constitutional claims i'll say it i don't think there is a very thank you very much your honor the law the case i mean you have different standards here in the cases say when you've got two different standards on the preliminary injunctions abuse of discretion and it's a done over review and we're looking at the twelve the six standard we're looking at the  if they if they pass muster and this case whether or not maybe they should be amended to use the law of the case would usurp the jury function the fact trying to present a set of amendment problem actually because the jury has to be the fact finder and to usurp that and take that away from the jury i think would be improper with respect to the issue of qualified immunity and the cases i mean it's not applicable when you've got an intentional  violation intentional constitutional violation that's been alleged in this case the qualified or the discretionary immunity which is of another theory that they were brought up it's not protected you can't intentionally violate the constitution be protected that way it's a qualified privilege there's just no rational basis in this case to go on continuing to search for four years after everybody has been satisfied that she's not presenting any kind of threat  the four years of searches went on there's a question of fact as to what she actually meant by the state ok and i'm sorry i'm out of time yes you thank you so much they appreciate your arguments this morning in a matter submitted