these powers are not unlimited and that is why we are here today mr cruz thirty two year career at alabama one credit union came to an abrupt halt on august th on august th two thousand and fifteen when the state of alabama conserve the credit union and terminated him as the c e o the detailed allegations of our complaint painted disturbing picture of conduct that took place behind closed doors at the office of the governor of the state of alabama during the few years preceding mr kreutz determent mr cruz terminations the district court held that these allegations were not enough to defeat a qualified immunity defense at the motion to dismiss stage i would like to focus on  three key errors that we believe the district court made and that the apple e's are asking this court to repeat the st is the district court's application of the st prong of the qualified immunity analysis which is whether the apple e's  pursuant to their discretionary authority the nd is the artificial line of distinction that the district court drew between the larry moore led alabama credit union administration and the later sarah moore led same agency and the rd point would be to briefly talk about the district court's construction of the alabama credit union act under which the credit union was conserved because that act does not provide any redress any procedural protections or any review for the decision that mr cruz is actually here complaining about which was a decision to terminate his employment agreement and to deny him his contractual indemnity with respect to the st issue the dismissal of all th me as he was a profiteering matter on the st issue whether you preserved it they say you didn't clearly flag it is an issue you are we didn't preserve it and the reason they say that we didn't preserve it is because in a footnote in our brief we say that we have incorporated arguments from another section of that brief the the decisions that the apple eastside truly talk about hayes's where there is no elaboration of a point or  litigant simply says this was wrong and our particular case we incorporate our discussion as i read it the footnote it's only in a single footnote it doesn't offer an argument and it reads in totality in the following way quote caruso discusses whether the defendants were within the scope of their authority at section four d here in then when you go to four d that discusses whether state official immunity applies quote your honor so i'm not clear on how district court judge was picking this up he would know that you are actually making the threshold argument here about whether they were acting within their discretionary authority or not at all relevant times you are we are our position as said in our briefs is that the discussion of absolute immunity in the state context there's overlap between that and the question of whether  state official immunity has an overlap with qualified immunity in the st product but all lost pretty clear that you've got a flag an issue we don't have to hunt for the like looking for a red october in the like it should be obvious it should be clear and we have enough trouble with difficult issues at least we want to know what the issues are you are what we believe and my concern is that you really have to do an awful lot of gymnastics to discern that you are making this claim about their discretionary authority you are we don't think it's quite as big of a job but we also side of the word in our pellet brief that even if we did not sufficiently raise this in the district court which we believe we did that given your orders concern a question of this nature especially at a motion to dismiss state on a constitutional claim it should still go you know it's just pretty clear it's a matter of law and the mere fact that it was in flatly even if it believe that that is as far as the inquiry gets because if they can't meet their burden our burden never comes up and even that question of discretionary authority requires a two part inquiry under this court's decision and the holman case that two part inquiry is number one whether the state official was engaged in a legitimate job related function and number two is whether that legitimate job function was carried out in an authorized manner we believe the district court any question that the remarkable i asked a different question it is within the governor's authority it's within the governor's authority to appoint the administrator of the i c u that is true your honor but what we allege here is much more and what the district court did and what the apple is or asking this court to do is to take isolated facts to tape not the entire context of the case but to take isolated facts and i think it's important to view our complaint and the factual allegations in our complaint as a whole because they do paint a very disturbing picture as the district court recognized and what i mean by that is the district court recognized that with the larry morgan lead a few administration we had  factual allegations that that administration was tainted that there was improper influence from the office of the governor during the larry morgan administration that is it's kind of put the timeline and place here in two thousand and fourteen is when we allege that a private attorney in tuscaloosa alabama filed lawsuits against alabama one credit union not being happy with the results he was getting in litigation he reached out to his former colleague david byrne and the governor's office began a hundreds of e mails that we we quote and we cite in the complaint in person closed door meetings to specifically ask the governor's office to conserve alabama and terminate m notably absent from that is a law clear that even if they acted improperly that doesn't didn't nude their act as being an act that fell within their discretionary duty we've said that clearly and repeated your it's not so clear in this context because it is a two part inquiry the st question becomes was it a legitimate job related to the fed what i guess what i'm saying is is it not clear as a matter of law in this circuit that we put the fact that the actions may have been committed quote for an unlawful purpose and ask whether they were still acting within their or general of star discretionary authority as a public official i don't think it's as clear with respect to the nd prong of holloman the nd prong of holloman requires the court to determine whether it was carried out in an on in an authorized manner and i think the improper motive the improper objective and the improper means of accomplishing that objective are important will in the nd question whether it fill within your legitimate job description that's the st part of the inquiry the st part is is it a legitimate job related function and you say it was we say it wasn't and the reason we say it wasn't is it's not a legitimate job related function and that's illustrated by the alabama supreme court decision in riley which is a ironically is the decision the district court in the apple e's rely on we say it helps us and riley the alabama supreme court said that this supreme executive power of the governor is limited and the governor can only come in and usurp authority that's been given to another state official when that governor makes an initial determination that the government official is guilty of either an action or an adequate action there is nothing in the complaint this was dismissed on the pleadings there's nothing in the complaint to to support a conclusion that the apple has made that threshold determination so even under riley it points out that the supreme executive power has its limits and so it is not within it is not only a gym it job related function for the governor to use or exclusive power granted to another state official particularly when they haven't made this initial threshold determination or let's go on to the next issue that let's assume for the purposes of on discussion that their acts fell within their discretionary authority the st part was over the burden shifts to you fire away tell me about the rest of the analysis yes your honor there are and let me let me focus you more precisely and asks and sometimes assured if you plausibly alleged that burn in bentley approximately cause the injuries yes we have you want to tell me why i will and i think the starting point for that discussion is the line of demarcation that the district court made between the morgan administration and the more administration the  was tainted and that actions tooken taken by the morgan administration were improperly influenced by the office of the governor the mistake that was made is that there was a clear mark a clear line of demarcation and the district court said yes but you that being said you haven't shown that same level of influence and direction as to the more administration what we say is the allegations of the complaint established an uninterrupted continuum of causation in an uninterrupted continu purpose and a plan to carry out an objective and your honors i'd like to create other than burn telling more that alabama one would be a large problem the allegations look to me to be purely conclusory what am i missing the defendants they strike me as their e general conclusory allegations i'm not sure that there are enough going to those allegations have to be viewed in the context of what happened before which is the mortgage administration when you view it in that context when you view the fact that miss moore was a personal friend of david byrne which in and of itself is not conclusive but when you view that along with the fact that she had no regulatory experience no credit union experience the governor's office  follow the usual practice of taking recommendations from the southeastern league of credit unions which is the industry group that normally submits three names to the governor the governor selects from those names is a requirement that occur there is not a requirement you  the question is whether you've alleged enough in the complaint beyond making a bold conclusory allegation it probably require you to do more than that your honor we believe we have i would like to illustrate this if i would suppose the objective here was to break into a building and we had evidence and allegations of a plan to do so and we have evidence of a plan to get a hammer and break into a building we're going to hit that spot we're going to do it at this time and we're going to do it this way after a while banging away with a hammer they realize the hammer won't do it so they get a bulldozer and they knock the wall down in short time and accomplish their objective the fact that they've got a new tool or a new instrumentality does not break that that that continuum of the objective and that's exactly what happened here your honor the hammer larry morgan wasn't doing the job so they brought in the bulldozer serum or it is not break the chain of causation it does not break the plan in the continuum that was going on here that we have laid out in the complaint that we've laid out in our brief can you make out a class of one equal protection claim here where the official actions appear to involve subjective can discretionary decision making your honor we can have two reasons number one is we challenge the initial threats which threshold that these were based on i see my time as a police if your question we challenge the initial determination that these were based on subjective criteria what we have here the benefit of what we have here in the regulatory context is objective financial data and we will get that in discovery we will show that it's objective data that drives what it is a credit unit is safe and sound and specially with things like a capitalization right perhaps where the most objective criteria there is and where the best indicator of the safety and soundness of a credit union so we would have we would st and foremost challenge whether inc inc wist even applies here but even if it did in course doesn't say you cannot have a class of one claim under such circumstances as you can if the comparatives are prime aphasia identical can you use yourself as a comparative and make out an equal protection claim we believe in the context of a regulated industry and is there any instance where there's any case where the comparative his yourself at an earlier time at an earlier incarnation that fact couldn't find any for that factual scenario no but it is clearly established that you cannot treat prime aphasia identical people differently so we would say was clearly established for that reason but the factual scenario he was treated differently had a different point in time and that's enough he was treated differently under of the inability of the complaint to allege causation as to bentley and to burn if the court affirms on that basis it does not need to reach the qualified immunity question and it also doesn't need to reach any of the specific issues about whether any of the specific causes of action clearly assert a clearly established violation of a constitutional right this court can affirm the causation conclusion based on the strength of two precedents one is this court's decision in dickson against burke county the other precedent is the one judge marcus mentioned during the opening argument of the supreme court's decision in it ball let me explain how those two precedents get us to that conclusion  dixon vs burke county makes clear that the appointment of sarah moore as of april two thousand and fifteen cuts off the chain of causation between bentley and byrne on the one hand and the cons and the conservatorship of alabama one in august two thousand and fifteen on the other burke or dixon holds that a plaintiff in a section nine hundred and three case has to establish causation in other words that the defendants that he is suing actually cause the injury that he is suing for in most nine hundred and eighty three cases it's not difficult for a plaintiff to pick a defendant for whom he can prove causation you if you're playing if you want to and you believe your constitutional rights have been violated the new sued the official who actually did the regulating or who interacted with you directly so if you believe that you were wrongfully arrested you sue the police officer who arrested you if you believe that you were wrongly regulated you sue the regulators who regulated you a so here the most obvious the extent mr cruz claims that his rights were violated i'm not saying that i'm not saying that the claims he has and it's more are good ones i suspect that they would fail for the same reasons that we have argued with respect to each individual claim but at least as to that case the shoes overlapping are the issue sufficiently overlapping that we should wait for we decide this case i suspect that the issues do overlap to a certain extent judge marcus i mean they overlap i believe that there are allegations of takings for example perhaps equal protection claims as same i should say by the way that that oral argument was sealed and the opinion in the district court in that case was sealed apparently because of certain privileges issues relating to the national credit union and ministrations so i have not been privy to that oral argument i have not been privy to the summary judgment order in that case so it's a little unclear to me at this point in time i was here with the complaint because we're initially bently unburned were named no no actually that's a different case it's a rd case that's pending but at i'm guess what i'm asking you is a very simple practical question should we go ahead and decide this case now or should we wait i think the court should go ahead and decide the case now and the reason why is that the causation issue is unique to bentley and byrne and it's a clear reason to not interrupted causation or there is holes that there is no causal relation when the continuum between the defendant's actions and the plaintiff's alleged injury is occupied by the conduct of autonomous and deliber decision makers so in this case we have those autonomous and deliberative decision makers occupying the continuum between bentley and burns actions as of february march april two thousand and fourteen in the conservatorship of alabama one in august thousand and fifteen those decision makers are sarah more the board of the a c usa and even the national credit union it ministration is alleged in the complaint to have taken certain actions against mr mr cruz before the conservatorship was in and so in the sixteen month continuum between the last facts we know about bentley and burn here and the conservatorship we have the decisions that made by all three of those autonomous and deliberative decision makers  the now dixon does not acknowledge dixon does acknowledge that there is a potential workaround for a plaintiff that wants to sue some defendant who wasn't necessarily the direct actor and that workaround is that if the plaintiff can show that the defendant coerced the decision maker or the defendant the defendant acted had extraordinary influence over the decision maker at that point in time perhaps the plaintiff can sue the defendant but that's where ashcroft or sick it ball plays a crucial alleges simply no communications at all between bentley and byrne and more or the a c usa as to the conservatorship and in august two thousand and fifteen the best that he has been able to do in terms of alleging facts as to bentley and byrne is this conversation that he alleges that either bentley or byrne had with more when she interviewed for the job and said that alabama one was a big problem that she was going to have to deal with but that's not coercion that's not extraordinary influence that comment is no different from a multitude of other comments that any appointing authority whether it's the governor of the president is going to make with the person that they're considering appointing for a job to let that person know here the things that you may have to deal with there's no allegation that during that time bentley or burns said to ms moore you were going to have to conserve alabama one there's no allegation that they said anything about what needed to be done there certainly is no allegation that she would not be hired if she didn't concern a one there's no allegation that she would be terminated if she failed to conserve alabama one and the fact that no such allegations appear in the complaint truth clearly has some information that has led him to the allege the fact that there was a certain statement made during the interview that suggests that that that's just the only statement that mr moore can allege on this front is this relatively innocuous one where bentley unburned bentley or burn say that alabama one is a problem that she is going to have to deal with a so crude has had to resort to the same i'm sort of conclusory pleading that ashcroft ball d held was insufficient for these purposes and this court found to be equally insufficient and more recently in the mccullough vs stanley case that my client submitted to rule twenty eight j letter on the gist of these conclusory allegations is that the actions of the ac usa and issue in the conservatorship and more in leading the  usa were quote unquote directed by bentley and burning them or was quote unquote acting at their direction often those assertions appear as by all appearances an afterthought in the complaint and apparent that occur after describing what it is that the possibility of the same is true here with respect to the standards that this court had set as a causation and dixon versus a burke county mr cruz has also claimed that his complaint provides a mountain of circumstantial evidence from wh  he says causation can be inferred the circumstantial evidence he points to is the interactions between bentley and byrne and larry morgan as to the suspension of karu thin february and march of two thousand and fourteen some fourteen months i suppose it is or maybe sixteen months of losing count before the august two thousand and fifteen conservatorship but once again those those allegations don't get mr truth over the standard the dixon versus burke county holds dixon versus burke county says that if the continuum between the defendant's actions and the plaintiffs alleged injury is occupied by a deliberative and autonomous decision maker there is no causation and the the relevant to the party that is standing in that continuum for the purposes of the of the conservatorship is not larry morgan as of april two thousand and fourteen it is sarah moore as of august two thousand and fifteen a fact showing influence even extraordinary influence over morgan cannot show that there was influence or coercion with respect to more under this court's decision in dixon versus  county one way of thinking about i think this causation question before the court is to consider what would happen if this case were here on summary judgment and the the only evidence in the record was the evidence that basically  pleaded by caruso in terms of facts here would would take a judge allowed a case that contained only this evidence to go to the jury or would the judge in her summary judgment when the only evidence is interactions bentley and burn and morgan as of as of march in february two thousand and fourteen and then innocuous statements to more when she is appointed if that's the only evidence in front of the court a summary of the summary judgment stage the court is going to enter summary judgment or not allow that case to go to the jury but because those are the only actual facts non conclusory actual ashcroft ball d type facts that are played in the complaint here the district court rightly said at the district court said that this require dismissal of a particular count the retaliation count but the same the same logic ought to apply across the board and it's not really qualified immunity issue it's a matter of whether the plane that has pleaded a a plea to cause of action at all and for that reason for that reason alone this court can and should affirm even without waiting on what whatever the whatever the earlier panel is going to do with respect to the two cases involving similar issues at this point in time mr sloan did address a couple of other issues that i think we don't need to address but if the court wants me to i'm happy to do so one was the qualified immunity question and i think it's it's clear regardless of whether crew thought adequately raise this issue in his his  part test that elaborates on the general requirement that the defendant in one of these actions wishing to assert qualified immunity show that the actions alleged of him or her are within their job responsibilities  is outside job responsibilities of of the governor's legal advisor and i understand mr truth i understand mr cruz counsel to have conceded as much a today the only question is whether crewe to somehow pleaded his way around  qualified immunity through these conclusory allegations that bentley and byrne somehow directed the ace usa to take the actions that issue here well there are two responses to that one is those allegations are conclusory they aren't sufficient to get to trade it to create a question about whether any such actions would have been outside liam burns job responsibilities whether they would have been outside their job functions to cite the  or have extra exercise their job functions in and are not an authorized means under the nd prong but the other issue is under this spring court under the alabama supreme court's decisions the governor has a supreme executive power and and everything that relates to the enforcement of alabama laws within the purview of the alabama governor so the alabama governor becoming involved in the enforcement of laws regulating credit unions would be squarely within his job responsibilities and thus if the court addresses the merits issues beyond causation bentley and byrne will be intitled to qualified immunity such that the plaintiff would have to show a violation of not just a constitutional right but a clearly it's important that the court uphold the a for a poll the decision on that ground it's important that officials like the governor and the legal advisor are able to enforce the law without fear of  lawsuits that are not based in fact fail to connect them in any meaningful way to the governmental action at issue and that fail to raise any clearly established violation of the law for all those reasons this court should affirm thank you thank you very much complaint we did your honor and what we alleged in the continuum of what happened was there was a there was an allegation that governor bentley and mr byrne sat in a closed door meeting with larry morgan and told him to take i think one of the issues we're struggling with here is that we had allegations of direct evidence of coercion with respect to larry morgan because we had documentary evidence we haven't had a chance to take evidence and so with respect to more we have to rely on circumstantial evidence allegations which is enough i feel like because we had such detailed allegations with larry morgan that those are being contrasted with what we have with sarah moore and we're being called to a higher pleading standard but sarah moore the allegations against  regarding sarah moore do provide a circumstantial chain of causation and of coercion she was brought in as a friend of mr burns she was specifically told alabama one is a big problem you need to deal with at a time when there were no regular tori's sanctions pending there was a fraud investigation going on wasn't there alabama one was eight was identified as a victim of that fraud your honor alabama one was not identified as a perpetrator of that fraud and so there was a fraud investigation going on that that was the reason for the part of the reason for the original two thousand and nine problems that alabama one cleaned up by two thousand and thirteen and we ask a question this right or do you make any allegation at all  generally speaking what we'll i dreaded tonight and i couldn't find anything generally so that undermined the independence of the of the board member whose let alone claimed that they were coerced or somehow unduly influenced so well by the governor or by the lawyer what we allege is more the cat's paul situation that we breached which is that they were provided all the materials that the board was allowed to review and making their decision were provided by sarah moore they didn't conduct any independent investigation they simply were looked at the material she gave them as we alleged being a tainted administrator she gave them for a for a an end that towards the end of it in the credit union conserved they didn't do any an