decision dismissing this case by judge david warner hanging in the district and that it is geoffrey dickerson i represent the opponent in the case the motion to dismiss below presented basically three questions to the district court one was whether of law argument and noted that there was no specific allegation of that but he specifically went further and stated that we had not alleged facts that section to warrant a conclusion than any of the defendants had in gauged in actionable conduct designed to violate a constitutional right we're here on appeal from that decision with respect to the jacket graph defended in the case and whether or not the alarm at the moment applies we have named her in her individual capacity and if that's unclear we can certainly correct that with an amendment which the district court should therefore the highest of pointing authority at that facility where my client later she became director of the department of residence so she was an actor at the time that some of this conduct occurred then she became director and now if you want to reinstate the district wants  reinstatement at the end of this case she is the proper party defendant as the official to order perspective injunctive relief in that regard so she has kind of a dual role in this case as we see it simply by virtue of her escalation to the throne of directorship of the actual conduct is alleged to them we've alleged that the defendants caused certain adverse actions in the employment setting terminations hostile environment excess of scrutiny that they were causing risks of these in one form under the first amendment and that they acted motivated thereby so i think that the complaint states a claim for relief for first amendment retaliation under the under section one thousand nine hundred three and that the district court was in error in that regard i'd like to turn now to the claim preclusion argument which is one that the district court did not address but this court may want to look at it on de novo review i don't know but i'll address it anyway the main argument here is that as i understand there are two different sets of statutes and of that of the chapter two eighty four that deals with personal matters and that's where you have your personal grievances if you're demoted suspended or dismissed you have a right to appeal to a hearing officer that's what happened in this case under chapter two eighty one that's the state whistleblower statute unlike a lot of other states such as texas new jersey mississippi and so forth they have a private cause of action for a whistleblower situation with remedies we don't have that in about it this is an administrative remedy and if you look at it at the statutory scheme you'll see that it's very restricted in the theology required to prove up a violation of that law are entirely different from the elements required to prove of the first memo violation in this case in that case you have to show that speech on a matter of public concern does it have importance to the community in evaluating the performance of government instead of the specific categories that are in chapter two eighty one the next question is was there retaliation was retaliation  refer the court to two eighty one point six eleven two i have a copy of it here the finding retaliatory action to list specific things denial of adequate personnel to perform duties a demotion whether or not that the dismissal of the employee was in the good of the public service in the case law under that says what that needs or has to be substantial evidence to support the decision could cost basically that's progressive discipline that the specific instance but then actually hearing officer bought part of the argument that is that this the manner in which the gate was left open it at the secure facility was something that he was not responsible for because of the situation and  i don't believe that would be at the fence you're on our bed the question is whether or not the employer's decision on that specific instance did the incident happened was the gate left open to the manner in which you responded to be discovered about that saying erratic me out i'm going to get you so on and so forth and furthermore your last point is that under chapter two eighty one even if this were a chapter two eighty one appeal which was not damages are not available this statute specifically provides that the the only things that the hearing officer can do is order them to cease and desist the retaliatory action i guess we need to talk about what could have been brought out but that hearing because it was apparently only into the hearing employer has to show cause for the termination and the employees job is to shoot down those witnesses as they're being put on by the state and then mount a defense against that reason ok and that's that's the context in which it happens we're not the lead we is not was that but could it have been raised the question is could you do that my position is your honor that the statute doesn't doesn't allow for that whether you could do that and get away with that i don't know but you certainly couldn't get the  that i think that that's the most compelling argument we have although we begin believe that the district court properly dismissed the case failures to claim bases i want to just clarify for the record what actually happened at the  testified that there was a particular standard as to how a security logs supposed to be filled out the ministry of hearing officer notes here the important poise voice the claim that each of those coworkers was lying and that the practice was not limited as they claimed to the passed down law again this is identical to the allegations that counsel's raising this new complaint i want to go to page eighteen in which retaliation claims made in page eighteen this hearing officer specifically notes the employee who is mr lambert hope pine that the possibility existed that ackerman who was another correctional officer was attempting to get back at him based on his sexual harassment complaint against ackerman but acknowledged it's the complaint first surfaced he continued to work with accuracy so these issues were brought up retaliation well brought up in the ministry of hearing process and i want to go on to point out that the administrative hearing officer was charged with deciding these precise issues and did decide the credibility issues with respect to with respect to the lying charges and the retaliation he states that page twenty four twenty six page administrative hearing decision that the employees credibility was shattered by his insistence that a past practice existed but excused his conduct in blatant claim that all the other correctional staff many called us his witnesses during  case in chief were lying when they testified in diametrical opposition to his claim past practice so the stain issues that plainest counsel is now presenting the plaintiff refrigerating mr lambert presenting for the federal district court were decided in the state district court decided the state administrative hearing which the plaintiff had the right to appeal it additionally to the district court level and did not decide his interest to any one that is an appeal to the district court that he had the right to do and he didn't do it with respect to the retaliation claim that i didn't want to point out in the complaint at paragraph six gee they're alleging that defend administrative hearing that was conducted following his terminations i want to point out the ninth circuit has consistently uphill administrative appeals appeals hearings process is under the that there are the same facts but it also says in the first criteria the issue is whether the rights of one of the parties would be impaired or destroyed by the second by the second  gets to go and do it again because we argued these issues before the administrative hearing officer we argued whether or not he was entitled to continued employment now he's asking for the federal court to decide the issue at any rate i would just want to point s i don't think that with respect to the excessive scrutiny allegation you know that does not survive that is what was decided with respect to the administrative hearing that's our position i wan go back to the issue of the director crawford standing in this case they are now asking to go back and really argue the issue of director crawford's participation in this case we filed a motion to dismiss  director crawford there's no allegations that she individually participated based in the complaint therefore she's entitled to dismissal the fifth the plaintiffs could have come back and presented an affidavit from perhaps  client the pit the plaintiff and said yeah she individually participated there's yeah she did it they didn't do that an opposition to our motion to dismiss yet now they're asking this court after we've already gone through all the motions two years down the road and then now they say oh well now we want to go ahead and give you additional evidence that they had that opportunity in fact if there's going to say well we didn't know that the court was going to say it's fine to dismiss on the failure to state a claim when they filed a motion for reconsideration and said well wait a second now we have some more information we really want to give you we asked for this relief they knew that these issues were before the court yet they didn't do anything in terms of presenting admissible evidence to refute it and we and they have the where there is certain the court has certainly got reason to give pro se litigants additional opportunity to argue their cases in correct deficiencies that are procedural but  this is a case where counsel represented mr lambert and he had an opportunity to make these arguments and they didn't do it i want i want to make has some other argued but i want to respond to one other issue  administrative code provision to eighty one that is the whistleblower statute that statute is part of the administrative appeals process that mr lambert had the opportunity to use and in fact that he did it he made an allegation that there was sexual harassment then he alleged against a co worker and that that that was the reason for mr ackerman testimony at the  the appeal so either if you didn't formally do it he did it as a matter of reality thank you thank protected activity we would have terminated him anyway and maybe that's where it comes into play i just thought of that and it seems that maybe that might work and maybe that is if that's a partial defense a way for the  save itself having to reprove things by submitting that decision to the district court to truly hey this is this is what we would have done and then it's our burden to come back and show additional evidence of retaliatory intent of the first amendment and i may be the solution to the problem i don't know as to back you're as good question about whether it could have been brought i urge the court to look at the statutory scheme under two eighty four and other to anyone and it's just different in both cases there's not a a person from a reasoned person from gauging and first amendment activity so you need to look at what the scrutiny was you need to look at what the harassment is and for pleading purposes we've alleged those adverse actions it's for the rest of the case to determine what specifically those