district court's erroneous denials from u t this court's jurisdiction is secure and well founded when the notices of appeal were filed timely it divested the district court of jurisdiction to hear the matters which is now exclusively exclusively before this court denial of prosecutorial immunity to not have qualified immunity and up and be shown to be knowledge we think that you have jurisdiction all the immunity issues that clearly the district court judge denied prosecutorial need to that's beyond cavil what he did not do and brings up one of the health and scenarios he failed or declined to rule on qualified immunity which is a de facto to novel i mean if you think well well but that's not what are his law says right the the maze of verses livingston biz very clear that they help an appeal ability rule doesn't apply when a district judge  ok let me try one more time yes if there is an amended complaint that has been filed in the district court that's correct that is the law of complaint it supersedes the complaint you're appealing from at that  time that nd event of the complaint was accepted by the district court in this court already had exclusive on those actually i have north that the or what's in that nd amended complaint why would we go through the drill of deciding this case and found out that know and i respectfully beg to differ with you on what you're doing is you are conferring and protecting your exclusive federal jurisdiction otherwise think of the gamesmanship that could happen a case could be properly on appeal on  understand the general rule is on an interlocutory appeal matters can proceed in the district court if they are different from the subject of the appeal and again i have no idea what's in the district court now and that's true if you're  it's the same core nucleus operative facts that are interact throughout these things your decision on these matters impacts the subsequent file council assume we're just looking at the original complaint from which you appeal correct  in that context were were either of your clients operating as investigators and detectors or just the rue detectives or does the record reflect that they actually had investigated investigators and detectives during those early grand jury years before the indictment either the district attorney's office did have investigators the allegations that i think the court should focus on or what mr millner prosecutor miller was doing and that was they already had an identified suspect this wasn't a burglary case this is not a buckley situation where mr miller's driving around with investigator say take fingerprints off this window or look for this there was a clearly identified district judge who was accused of accepting one hundred and fifty thousand dollars in bribes what they were doing that is putting a fine point on the pencil of which charges if any should be proud long did it take from the allegation of miller miller's st involvement until that fine point was clarified to the reach  and here's where we want the timeline to get the timeline was the original complaint from judge sand of all the complaining witness was in october of two thousand and eight to collin county district attorney's office was recused voluntarily recuses on july nd of two be consistent with with intimately connected to judicial proceedings it would not be uncommon in a complex bribery case where they're looking for bank records judicial or other up camel that's mine but in that context he's aberrated as an investigator he's looking for evidence and then you jump to the qualified as you do issue ok and then you then you look there's no clear how to put this mind then you're you're almost acknowledging he wouldn't get absolute immunity we would be jumping to qualif perfect world and what the case law suggests there should be one shot on a motion to dismiss to address all the me and the issues depending on what happens we go back down there is evidence developed if necessary we have a summary judge we may come back again but in this case what happened is the judge partially ruled on prosecutorial immunity denied or delayed ruling on qualified immunity and then basically said if you don't answer and it's in the transcript if you don't answer i will entertain a default judgment against you so what do we do do we say we're not going to take this st appeal and come here before you and based a waiver prosecutorial immunity or do we take the other hobson's choice and not answer i understand he you evidently found yourself in  tricky position of course we have to sure ourselves of whether we have jurisdiction and as to what right and it's our position if you look at the mays case i think it provides good guidance because they talk about how the court how the impact of an a clearly i don't think there's any question or any challenge that this court has jurisdiction to address prosecutorial immunity clearly denied what he did do and if you think about the policy concerns underlying people these are supposed to be resolved early and efficien efficiently so that the burdens and rigors of litigation discovery was stayed but that's only one facet of the burdens of litigation judge roche and assistant district attorney miller we're still required to moves the jurisdiction from this record not necessarily for an inner locked door appeal no your honor that's not necessarily true but in this circumstance it is and as my colleague mentioned the only court i think that has addressed this specific scenario is  the th circuit in major's ishay and against i don't pay forty five of our brief and in our view that that's an important thing for this circuit to make clear of the rules because otherwise we have the potential for different abbott in white we have an express ruling on that and then under baccy vs the blank recognize that the failure to rule on a qualified immunity is also a proper part of this appeal now your honor mentioned the maze of vs livingston case that case of course came before baccy yes and so you would control well under the rule of orderliness i take your point your honor what i'm saying is the careful procedure laid out in baccy still governs and maggie mostly relies on wicks correct that's right it it's the way it is one of the cases it cites and they are the focuses district courts can't order over broad discovery but they actually are encouraged to allow plaintiffs to amend their complaints that's right but it goes back to helen vs clemens and that in may's a we said we are not extending the helton rule that that that's where your honor i mean the judge is fully informed of that set of rules and he did it just right he didn't refuse to do is to rule he in fact did rule and he said i'll rule shortly on qualified immunity i'm just going to give the plaintiff's chance to amend that sounds like it's precisely in the law this is different from any previous case because what response to do in that circumstance if we didn't appeal that and waited for the amended complaint to supersede the st amended then his order ruling on prosecutorial munity would also be mo the nd order is not going to address prosecutor or immunity why is it so why is the order ruling on absolutely any new it's before us we could determine whether it's correct or not no no because if the nd amended complaint superseded the st amended complaint right then we just have a district court order on a nonexistent complaint but as to your two clients is there anything in the nd amendment contemplate that elaborates beyond what would be before us for some time in terms of absolute immunity so it's like certainly not is to add no i have has to white it's it seems that they're still sticking with pretty general descriptions and just investigative role right and those are labels and conclusions amy i think the interesting question here is the jurisdictional question because if we get to the immunities that there's no question that is out there there's nothing that is non conclusory alleged against him and then there's no clearly established law that they can point to at the requisite level of specificity on any of these claims well that says to the qualified media that's as a qualified immunity bit  refused to extend the grand jury because white was involved and if those early grand juries never even returned an indictment i would think that they would fit squarely into buckley in our case of those are investigative grand juries and if we can infer that white of presenting an indictment versus gathering evidence and you have a sense for where that line is i have been lower courts keep trying to say there's a line exactly it's not artificial it's not an easy thing to pin down i think there's a big gr area and that's why in our view the most straightforward path to resolving this entire appeal is qualified immunity and the court has jurisdiction jurisdiction to do that and also i should say what if we find we don't what happens  hypothetically we find jurisdiction result absolute prosecutorial munity new jersey action qualified immunity what happens in this case really large well i guess if if we win it completely on absolute immunity then that's it everybody gets dismissed on that basis and if not then it would be remanded so that presumably there could be the nd amended complaint actually filed properly as the district court contemplated ice shouldn't ask questions that just occurred because they're usually very wrong why wouldn't the parties move to consolidate both appeals present in front of us because that i don't think that could happen because either there because the st american play is the operative one and we have an order on that or that's all gone that's moot because the nd a minute complaint displaced that and we have jurisdiction then wouldn't the nd panel of ours be the panel to make those distinctions w if if the panel were to reverse in that case on qualified immunity then this case would be vital for mr abbott that's correct i believe and i see my time is running short  another basis for exercising jurisdiction over qualified immunity under the pending appellate jurisdiction theory and so for all of those reasons we would ask that the court exercise jurisdiction here and remand the case with instructions to dismiss abbott in white see my time is just like there is a distinction here that is important in the make case in the th circuit the that involved the district court entertaining motions for leave to amend the complaint that were filed because it would have notified the complaint under which the motions to dismiss have been made and ruled upon and the pelican would be left to rule on basically a motion and a complaint that were legal melodies in this case the aptly requested leave to amend in responses to the motions to dismiss and the district court granted leave and in fact ordered us to file a complaint and them in a complaint within two weeks and we did that now the day before the minute complaint was accepted by the clerk bias filing it the notice of appeal was filed which was actually i think two weeks before the deadline to even appeal so we're in a position now where the district court has done nothing to interfere with the if there is an interference with this court's jurisdiction which i think it did defeat the the jurisdiction for this appeal it was not an act by the court but merely the ministerial acceptance by the clerk nd in a complaint which we were ordered to file so essentially the acceptance of the amended complaint occurred two weeks before the notice of appeal was filed when the district court ordered us very unique circumstance and i've looked and the only cases i've come across that deal with an issue like this involve motions from leave to amend that were filed after a notice of appeal and the rule of law after nose of appeal where it was the district court taking an action that defeated or undermined the appellate jurisdiction but in your brief did you make any answer no your honor and i'll confess we were we we were not focused on the investigative step described as to each different our that would be i suppose it would be the issuing of subpoenas through the grand jury by regarding the nischelle grand jury on or about what time it was in the fall of two thousand and eight and then when is the st when did you describe mr white's st involvement with an investigative step mr became involved in the case in december two thousand a that's an allegation that came along with that will help us distinguish prosecutor over so it's the st description of an investigative step that mr white took i believe because he was operating under at that time roche and miller as a he was st involved as it's kind of confusing because he was st just involved as an assistant texas  attorney general and then he was appointed as an assistant district attorney for collin county and that was and fall of two thousand and nine leave and then he was appointed the district attorney pro tem in july of and ten he was involved in the investigation the entire time from his st involvement in the separate two thousand and eight now he was involved in painting the subpoenas the entire process of the investigation that was not it was not his role to simply from december two thousand and eight to before no functions he was now we do not have the specific allegations of mr white apply for this pacific subpoena from this grand jury in two thousand and nine we don't have those in there what we have is his participation in the case and in the investigation through the entire process beginning in december of two thousand  now there were six granger roofs that were assembled stretched over a period of two and a half years and i believe it was a roach actually and confessed that they did not have enough to present the case to the grand jury for indictment but they would continue to assemble evidence and seek evidence and investigate and that's what all of the actions were leading up to the end and the indictment they were using the grand jury as a tool as an investigative tool it wasn't part of the judicial face it wasn't intimately connected to the judicial face and indeed your my question earlier you know what's the best case that defines a planned use of a grand jury is investigative or says use of the grand jury is connected to making an prosecutor's decision the latter absolutely merely the form or not it i think it's it's it would probably be an investigation or if you are assisting the police in their investigation if you are performing the role of an investigator what would be to additionally done performed by the police or the sheriff's department or the texas rangers when you're doing their past when you're performing their job then you're only as a prosecutor only entitled to the same level of immunity as they would be a title and that be qualified immunity you're a member of the supreme court decision burns yes you remember the footnote that seems to sort of paint with a broad brush about prosecutor involvement with grand juries so yes and i can i can see the distinction i think that is important is in regarding frame juries as when they're the prosecutors performing as an advocate something of that nature and that function and that's why the functional approach when they are before performing acts as an investigator then i think that's what divides it regarding a drain jury and really the dividing line which has been drawn and it's been drawn back by this court as well is pretty indictment actions and use of a grand jury that to investigate without when there is not probable cause has been determined those are solidly within the investigative phase because there is no probable cause there's no indictment and in fact you're saying this case is easy in a way because we know the six grand juries at the district attorney level none of them returned an indictment so clearly that was investigated it never led to pros decision never trigger judicial proceedings but it does look like once it got to the attorney general level grand jury indictment well but the attorney general remember the attorney general that the indictment did not come until two years after the attorney generals and all that well now the attorney general had been designated as the district attorney pro tem immediately before the the indictment was returned but the involvement  of white and and of abbott in appointing him but the attorney general's office had been involved from early on where you do describe appointive roles but in and yet i'm not sure it's you given enough specificity to say that they took any actions that were those of a prosecutor playing the role policeman well it's the there's there are no and there were no actions taken up until the indictment that were ever been identified as being intimately connected to the judicial phase the white's role in the investigation i'm sorry in this case was in the investigation and in the end that's the gate investigative phase until there was an indictment that had been tainted trial and convict no she didn't yes you go to trial she would have her appeal ok so the but the the investigation began almost immediately i think it was a march th it was right after the primary after she had won the primary  the alleged bribery had occurred before that but the but from the very beginning of this case there was no or never any crime here there was no probable cause  crime because the law did not actually make any of the conduct even as alleged to be criminal and that was on the plane reading of the statute it was not criminal at the time or there after or before and there's been a claim that the law somehow changed that the texas court of criminal appeals provided a novel interpretation of the statute that defeated the crimin honor they they necessarily had to been improperly instruct on the law because there was no crime it was not a crime and the plain language of the statute as that corporal peel said there was no crime this was criminal behavior but that did not stop the district attorney from initiating an investigation and the attorney general's involvement and investigating for two and a half years with respect to white that's what i have to go that if assuming that we address those that is that's what i have to look at aren't we yes and our in our our our position is that that it was he was that's what he was doing from two thousand and eight and till the one  what was going on in there but the there are ali there are allegations of his participation with the grand jury process and there are allegations that for two and a half years he was part of the investigative team as far as specific acts did he signed the search warrant did he you know did he go out and obtain this piece of paper no we don't have those and part of the reason is we could happen done any discovery yet so the but the heart of this is that there was the allegations against and it doesn't even seem to be much disputed here that the conduct before the indictment was investigative and therefore would not be covered by absolutely unity the heart of the defense appears to be that it was that is covered by qualified immunity  the and this is because it was the conduct was the in the investigative phase and this is case than usual mishaps cases many unique factors to it but one of the biggest ones is the fact that there was no polic what investigation to do and things of that nature that would be participating investigatory but they eliminated the middleman here in the investigation by conducting it entirely by themselves and because they were conducting the investigation just as a police officer would the detective would they are entitled to no greater immunity and to apply a absolute immunity this context would be extending them greater immunity than the police or the sheriff's department would enjoy performing the same function now  there is also an allegation i want to touch on that's an unofficial immunity before this court and the that's an affirmative defense under texas law that the defendants carry the burden to prove to the  entire process we it's not shifted to us on a motion to dismiss to defeat that they have presented no evidence and really made no effort on at least one prong of that which is a demonstration of good faith and they're simply has been no demonstration of good faith just an assumption just they want to assume good faith in their performing of their duties now we've also argued that the conduct of the misconduct of abusing the grand jury system destroying evidence things of that nature were was ultra vires and outside the scope of their duties and their authority and if something is ultra vires it's not covered  related to the failure to supervise the assistant attorney general he assigned to go over and take over this prosecution it was there was there were failures in in assigning the district attorney without i mean this is an attorney general without evaluating even the credibility of the case but then failing to supervise once that and once the mr white was assigned regardless of whether there's qualified immunity in relation to that there is no absolute immunity because none of those activities were intimately connected to the digital dismissing him based on qualified immunity in the more recent order of december rd police well i'm sorry i'm confused about falcon's abbott has been separately independently dismissed and was out of this case allegations and look at what they are that he entered the order of recusal and then he made a comment to the texas lawyer those are the only allegations in the live complaint that's before this court there's nothing non conclusory about supervision or anything like that and that doesn't even meet the threshold level of a plausible claim under it paul i mean and that and if you not that i want you to look at the nd minute complaint but if there is no better than the st complaint with respect to roach i think on the  what buckley contemplated buckley is a very small exception to the what if there are no police no texas rangers who's is coming in front of those grand jurors for two full years to prosecutors and that's you honestly go in there s they're saying that suggests and start investigating and that's where we get into this very amorphous concept of when does it where is that litmus test if one exists which i don't think it does of when they step from the shoes of investigatory to this is how i'm going to present my criminal case ok thank you counsel thank you result of immunity defenses sometimes a bite is not to be able to state a claim without discovery and that's just how it goes that's the twelve the sex mechanism there's no absolute their absolute immunity also applies to abbott under van there would be no new light were in those green jurors interviewing that's a that's a good point your honor and there could have been specific allegations as to why they're not i means absolute immunity applies while five immunity applies because several reasonable people including two justices on the state court of appeals thought there was a crime here you can't he said that every reasonable fishel in the defendant's position would have thought nothing was amiss when someone is getting sixty times a campaign contribution in exchange for favorable rulings when she's elected that's what the court of criminal appeals that was going on since that ruling of there been any prosecutions of campaign donations from lawyers to judges ever as under statute i'm not aware of what's happened since then your honor just briefly on unofficial immunity this is the rd prong of what we're saying jones vs bob from the supreme court explains that initial immunity is something that may be asserted at the twelve of the six stage we don't need evidence it's a good faith objective standard it's just like qualified immunity and unless the court has further questions oh you know the remainder of my time in the clerk's office will issue by the end of the week a real regular briefing schedule so you'll have an opportunity for a reply brief it will be simultaneous later breezes will be a regular briefings can i appreciate that you're on to that concludes our cases for the day we stand recess