like your honor they fax it issue in this case are really quite simple the plight if one is a member of the tennessee house of representatives he was an elected state official and in the course of his service as of elected representative he was voted out of office not especially called session of the tennessee legislature we have alleged that the vote the legislative action was unconstitutional under the tennessee constitution and that that gave rise to a deprivation of mr durham's pension and health insurance benefits  so we have not alleged that his right to hold office was somehow protected liberty interest it would be covered under the due process clause but we have alleged that his pension and health insurance benefits were deprived because he was voted out of understanding why this eight thirty six two zero two applies to members of the general assembly given that subsection c says this provision shall not apply to members of the general assembly but it seems to that both parties in this case seem to be arguing it does apply both parties if the allegations are and what mr durham was told in the e mails which one of which is attached his complaint is that he would have been entitle to certain benefits pension and retirement benefits if he had served out his term of four years ok if he'd served ok so this is a legal question yes your honor that's a that's right i mean basically he was he was expelled and a vote so the legislature the house took action and voted him out of office and then what we've alleged in the complaint is that that had consequences for his tangible financial benefits and that's really it in a nutshell if you ever present these arguments to the administrators of why you should be entitled to the benefit of the administrators one of whom we sued  the e mail to the complaint where the administrator ruled that he was not eligible for the benefits and that e mail is attached as an exhibit to the complaint it's exhibit b to the compliant and the only issue before this court is whether mr durham has standing to proceed whether whether he is his guy is someone who number one has sufficient concrete injury particularized to him under the cases like the opinion in the loop on decision here yes i have a question yes your honor i want to get at and in order alternately to get to the standing issue i want to get at what your federal claim here are you familiar with that kind of pen hurst line of cases that well let me ask this first you're seeing these defendants in their official capacity right so the norm nor and so in effect it's a suit against the state that's right all right we'll go normally the states are immune in federal court yes but there's an exception under x party young right that's that's what that's what that's what this case is about what this case is about all right so here's here's my question then if you're going under that the line of cases i mentioned a minute ago says that you can't bring an ex parte young case for a claim based on state law we had to be a violation of federal law so you've got to have a federal claim and i can convey to the decision maker something about yourself or about your claims you can't just say oh no the statute doesn't give me relief because if you just say oh no the statute just doesn't give me or does our argument is that is that mr durham was deprived of these benefits as a result of a vote by the tennessee house of representatives and then that action was carried out by state officials under tennessee law i'm sorry and that that was illegal under the vote was illegal and therefore and therefore he was deprived of due process what i don't see the but the only two process violation that you've stated  far is that he that there was in violation of tennessee law and then it's pretty clear that that stated by itself can't be a procedural due process well it's a deprivation of protected property interests only a protected property i you win on the legal issue you don't win on the legal issue it's not a protected property interest right well the legal issue being whether the vote was legal or not legal that's the only thing you're challenging it's just mystifying how to me how that raises that of course was not the basis of the trial sorry to interrupt the core of our senate simply is our argument simply is that where a person is deprived of life liberty or property without due process that is itself a violation of the what you say without due process but it's in a case where your only argument that you're entitled to it is an interpretation of state law you can't turn every challenge to not getting money from a from the state into a due process issue just by saying i'm entitled to it if you if you're getting state benefits and the state legislature terminates those benefits you may have a claim that they didn't legally terminate those benefits but it's not a procedural due process claim unless they terminated on the basis of something you did argue with me you know i think i follow the court the court is saying yes yes your honor but so when they do so without any process or without a hand they c e legislature can stop programs and the law it's pretty clear that's not a due process violation because they didn't stop it because you didn't pay or because you got better because you're healthy or because you're no longer disabled or something like that they just stop the program and you can say they stopped it illegally but that's a state law issue not of it's not a procedural due process i just and the courts concerned but here what they did they didn't just stop a program in this instance but they didn't do anything that you're alleging on the basis  of they didn't the illegality of what they did that you're alleging is not that they didn't take into account whether he did something that warranted being expelled or is it no that's not the basis is and once you say it's not the basis and the district court says that you have i want to tell your client that i started out just puzzled as to whether there's any any there there or if i've said it out as best i can this what what we were focused on for this appeal of course is whether he makes out the elements of standing whether he sued the right basis and that's why we're asking that it be reversed because there's this ruling on standing was basically something that said the legislature caused this not they just particular defendants that we sued that the cause which we suggest is not the kind of causation that is of concern to a question of standing and it is really on that basis in a very simple argument and i need not take all my time if the court germond benefit well the e mail that's attached to the complaint is exhibit a suggests that they did because it says that commissioner martin made the determination to not grant the benefits based on consultation with the state attorney general is there a plausible argument that you have that expulsion could equal retirement for purposes of lifetime benefits i'm not sure about that you want to that's not an argument we've been able to explore yet because we've been stopped based on standing so we haven't reached the merits of that question and whether that is right or wrong is a is an issue to be developed and statute of limitations your issue your answer would be the same you haven't had the opportunity we haven't had a that we haven't had a question raised about statute of limitations or that's wrong thank you thank you if the court has no further questions it's very simply asking that the court reverse the describing how federal courts analyze standing thank you thank you with the tennessee attorney general's office and i'm here on behalf of the defendants and the defendants are the commissioner of the tennessee department of finance and administration the state treasurer and the director of administrative services for the legislature and your honor i'd like to go ahead and address the last question that judge watson raised about the discretion that these officials had in applying state law and i would respect disagree that they had any discretion it's not as if they could have looked at in gone behind the reasons why the plaintiff was no longer a state employee for purposes of health insurance and retirement benefits they simply apply the laws that exist now yes commissioner martin did look at the statute which says that upon retirement from the general assembly a member of the general assembly can choose to keep their health insurance benefits and said expulsion does not repeat retirement they're not the same and if you look at the complaint that was filed by the plaintiff they do not allege that the plaintiff retired from the general assembly in fact they repeatedly allege that he was expelled from the general is so the issue here as to whether or not he gets the benefits is whether or not it's expulsion or retirement is that the issue is not the the four years  herring that statute that is a red herring that goes to the retirement benefit benefits and your honor there that we actually cited there's two different statutes one of which says it's four years one of which actually says five years because members of the general  serve terms that are in two year they're even number terms before your statute is applied but regardless the plaintiff didn't meet either one of those and he doesn't allege in his complaint that he met the four year or the five year so that is something of a red herring ok ok that that clarifies then why are because it looked like to the district court was was saying you know the statute didn't apply and yet the parties were both seeming to say you did apply or does it really matter because it doesn't really matter because that i have the facts as alleged in the complaint demonstrate that the plaintiff did not have fought four years of service four years of credible service and if he didn't have four years he certainly didn't have five years so regardless of which statute you apply he did not meet those requirements and arjuna green meant that if we find they're standing here this we we don't go into the merits we just send it back to the know your honor i would disagree with that because the issues we didn't standing was not the only issue that we raised before the district court and the facts here are not in dispute the facts are all before your honor and the your this court can determine whether or not plaintiff has actually stated a claim and as judge rogers has recognized that even if you were to find the plane it had standing he hasn't stated a claim for violation of federal law his only argument is that while i have due process based upon the alleged if you look at it was argued in the in the trial court understand what i'm talking about are you going to i agree however the plaintiff did have the opportunity to fully briefed that issue before the trial court the trial court chose not to to to reach the issues once the trial court determined that standard i'm just saying as a matter of your process if you want us to from alternative grounds you probably are brief but i would agree your honor we should have briefed and i'll be quite frank and this is the reason why i'm here in your they are and that is that i quite frankly did not think about this the penn farce line of cases we were focused on the fact that the let's let's assume that  ok and that they're right right then and and an injunction were entered by the district court telling those people to go ahead and pay would they have to pay or connection between your will but there is because the relief is you pay and there's a causal connection be between a judgment that you pay and whether he actually gets the money rather i have to respectfully disagree with that because that the actions that the pla has complained about in his complaint are the actions of the tennessee legislature the action that he's complaining about is that they're not paying him and all these officials in order to pay him his benefits when he's claiming  prayer for relief is pay me and and if if very hypothetically we agree with all the legal basis for the conclusion that payment has to occurred then what he's asking for is amy it's very different from where the relief sought was some sort of action in the government and then the question was whether that would benefit him would seem to me in order pay me something that benefits him maybe be thrown out and that maybe it's the same problem that i'm having because because to me the standing issue is so intertwined with the fact that the plaintiff num ber one did not actually apply for one of the benefits he is now asking this court to order that the fact that they're asking for the legal steps towards the order to pay him brief we didn't have necessarily a reason to appeal to raise on appeal the fact that the trial court did not reach the alternative brands that we had asserted below it would be you would be arguing a firm brand of the failure to state a claim here i think that when you look at the complaint and when you look at the allegations in the complaint and the arguments that were fully briefed in the trial court on those grounds that that that is an alternative crown the court can reach it does not require the court remaining it back for any sort of discovery because the facts are not in dispute and that the statutes in question that were being administered here by these defendants have not been challenge by the by the plaintiff there's no allegations in the complaint that these statutes are unconstitutional there's no allegation in the complaint that these defendants improperly interpreted the statutes or improperly applied them or acted beyond the scope of their authority the complaint simply says the tennessee legislature expelled me and then the defendants applied state law just like they do to every other state employee that terminates their relationship with the state of tennessee they applied state law and determined that i'm not eligible for the benefits and question and going to the question your honor that you raised judge bush about whether or not they actually presented in the arguments to an administrator no they did not there are no allegations in the complaint that plaintiff actually ever even applied for the retirement benefits which state law does require you to do that with respect to the health insurance benefits what you have in the record is that email a soul in a mail in which plaintiff inquired and got the response back that expulsion does not mean you know is not the same as retirement but he never formally applied for those benefits nor is there any allegations or evidence in the record that the plaintiff availed himself of the of of post deprivation remedies the remedies that are available under state law to challenge a decision denying you health insurance benefits retirement benefits all of which are available to all state employees and so we still submit that the trial court was correct in finding that the plaintiff did not have the requisite standing here that he did not demonstrate that the injury was the result of the actions of these defendants who were doing nothing more than acting as administrators of the state law that injury was the result the actions of the tennessee legislature he was not before the tennessee house of representatives actually not the entire legislature but just the house of representatives and they are not here before this court and we would ask the court to farm in the alternative although we did t our brief and i apologize we do think this court could affirm on the grounds that we have discussed this morning with respect to both the penthouse cases as well as the failure to state a claim he the complaint simply does not that this plaintiff one had a protected property interest in either of these benefits and two that the plaintiff has demonstrated that to the extent he actually applied for and was deprived of these benefits that he  did not avail himself of the post deprivation remedies or that those remedies were in adequate or were improperly applied to him all of which were available none of which are played in the complaint and your honor were fully briefed below in the plane of had full opportunity to ask the court for the opportunity to amend their complaint but never did never ask for that opportunity to put those facts in that would demonstrate that they had stated that claim and so for these reasons we would you i please the court i really don't have any rebuttal to make other than to point out that the sole basis for the dismissal of this complaint was standing that was the sole basis below and that's why we are here so we just to be absolutely clear though your claim and the claim if we were to reverse that you would be making is is not one that depends on the ability of your client to show to the decision makers any facts related why he was why he was denied these men not really although it's has i'm hesitant to commit myself to what we do below because you know i don't know what's going to be raised if it goes back but talk about the theory of you your honor i appreciate it thank you the case will be submitted