did she really deny summary judgment on the grounds of qualified immunity didn't she denies summary judgment because she wasn't prepared to grant summary judgment because she reserved on the issue of qualified immunity yes your honor but under johnson it's the denial of a summary judgment or one of the issues being sought is qualified to be and clearly was before the order to purely legal questions here the first question was is will for justice conduct in union negotiations that protected by the first  well that issue was decided by the court in her grant a partial summary judgment to the plaintiff yes well is that aspect of the order necessarily before us it is just the i very well remember the newspaper coverage that was going on two or three years ago that the correctional officers officers in about the lack of pay about you know ability to open up certain areas  because of lack of correctional officers about the forced overtime and this was more than just negotiating this was discussion statements by members of the union by correctional officers about the conditions that they were facing and frankly i as a citizen found it to be a topic of great interest and concern about how our prisons were being run and i think when you try to limit what they were doing to contract negotiation i don't think that is an adequate representation of what was going on we were on him mr justice retaliation claims based on singular fact that he was engaged in contracting goes well reading the briefs that doesn't seem to be limited to that singular fact because they talk about what was going on in the newspapers which reflects what i as a citizen of delaware was saying in the newspapers at the time yes right but mr justice had nothing to do with any of it he wasn't a speaker at any of those things he was an officer at the union and i gather that there was some unhappiness  among that of the administration about what the union was discussing in public and as an officer of the union isn't there a likelihood that if you're man of the union you are going to display that displeasure to the officers of the union that are bringing things forward that the men or administration perhaps did not want to discuss in the news understand your honor that a person can only assert their own constitutional rights not somebody else's right but the but here is right is a constitutional right is a member of a union we don't know exactly what he did or didn't do  may in public discussion of what was going on but certainly that type of discussion is constitutionally protected and if it's an issue of was he involved or not that as what itself was speaking to the media about the problems at the delaware institution yes your honor but the problem is that the constitution is very individual it's your constitutional rights are my constitutional  mr justice cos right he doesn't get the benefit of somebody else's costs right the fact that other members of the union are being quoted in the newspaper they may have a protected first amendment you're suggesting that this is just has had no involvement whatsoever in the statements that were made to the media about the prison conditions not a one his sole basis of his claim is based on contract negotiations but that's the basis of this does that mean that because he made no statement his he has no retaliation claim against not pick not hung r your honor he the theory of the retaliation is that he put in an application for promotion and that somebody misplaced it for three days july sixteenth seventeenth and eighteenth because of that through a series of events he didn't find out about the interviews until the day of the interview mysterious that if he had more time to prepare for the interview he would have done better at the interview he blames alan martin or for that really evidence is on the client but not the plaintiff is that correct if you're off and it seems to me if you look at the statements of fact there are disputes you contend there's no evidence they contend there's lots of evidence from which inferences can be drawn evidence that mr mocking or was aware of what was going on that there is that issue of material your honor in fact if you read very carefully what they did do with the district court they disputed but the only thing th intention about was whether mr mike turner may have known about his application problem earlier than second step of the of the grievance and that was the only thing they ever and they and that that's in their their supplemental appendix then he or district court make any specific finding or conclusion about qualified immunity they did not grant it and well she said was it i'm reserving on the issue of qualified immunity now i got the impression that what the district court was concerned about was causation whether knocking or in fact retaliated on the basis of protected activity that's the impression i got you disagree with that your honor that may be part of it the problem is d for a later date but she did make a specific decision that she not she didn't she say that there was a constitutional right of the pile on the part of the union to be protected or to have protected speech well you i don't know you isn't it a matter of causation your honor there is no evidence of causation i mean if you look at it all there is it that the the plaintiff blows as you doing to gauge and conject ure of a lot of things and not believe the undisputed testimony that's in the the court decide whether the right was clearly established prior to the violation of the court addressed that issue at all no you well here's what she said in her opinion plaintiff's involvement that's mr justice with c o a day the court officers are corrections officers union is a constitutionally protected activity under the first amendment so she made a is the constitutional constitutionally protected right in gauging in the goshi ation which is only claimed activity in the union is not constitutionally protected it's not the one of the first amendment so if there is no comment you don't kept going the next step what did he specifically do aside from the group right the right to associate he engaged in contract negotiations that is true he represented union members in grievance perceives things of that nature  participated in the general decision on behalf of the year when the union made the decision to public application was lost as judge roth in indicated in the newspapers it was nearly every day that there were articles and usually not mr justice not not my client i will i will readily concede that but union officials were publicly criticizing the running of the prisons they were talking about the escapes the dangers the rapes of correctional counters because doors were brought to the guards to guard the prisons things of that nature that was constantly in the paper probably from about february of that year through the gubernatorial election in november of two thousand or so is it your position that he was retaliated against because of his leadership position in the union and because of his negotiating on behalf of union members and because of his simple association with the area the opportunity it's plain as theory or are that the opportunity presented itself to the defendant to retaliate against a high ranking you know the union is out there and they're raising all kinds of hubbub in the media they're blowing the whistle they're doing all those kinds of things while we defended could retaliate against the other union official because they were applying for promotions or the only union official who was applying for a promotion of the time was my cl because of his association not because of contract negotiations isn't that that's the way you want to cast it because if it was on account of collective bargaining or negotiations you have a problem terms of first amendment protection is not correct that is not correct your honor and i will explain to clause context your honor a public employee has a first member right to petition the government but as there is above the law out there saying that the government doesn't have to respond it doesn't have to respond under the first amendment if the employee has a right to speak but there is no respon necessary from the government it's the same here in the union the socit in context are up the union has or has a right to collect to bargain collectively the government doesn't have to respond and in the senate and in the third circuit case cited by the by the defense amendment protects from hostile so you're at your best argument on behalf of mr sergeant justice another way to write asserting that he were speaking out a matter is of public concern or you're not you're saying that he was involved in union negotiations that alone is entitle to the first amendment protection that is not the extent of my argument that's part of my argument yes yes that is part of it the other part is that he was associating with the union that was publicly blowing the whistle and being a thorn in the governor in the  department of corrections side associating actively or merely because of his leadership position both your honor i think bias that by holding a leadership position in the union he is associate if i look at the record i can see that he was standing with the other union members when they were speaking to the institution the record below it's a photograph but it's a photograph a place of walking with the other union officials for example as are going to court after they were all sued for engaging in their union activity sued by the state of delaware sued by the governor sued by the department of correction in that sense yes jurisdiction sure your honor and that goes to the issue of qualified immunity which is a two part process the first part obviously being violation of a constitutional right now the constitutional right here is one of the first is one of first met is one of the first  retaliation recording the court below judge robinson indicated the plaintiff in gage first and protected union association union activity so all that leaves them out healthy frogs of the causation analysis is that issue for us properly before us that there was a constitutional right i don't think so your honor under my reading johnson b jones and the third circuit cases discussing johnson v jones because the district court was unable to complete the qualified immunity analysis because of the fact is i don't believe it is properly before the court your honor i will concede that the law is a little bit unclear on this but do you know don't we have to determine whether or not there's a constitutional violation i mean if there is not a constitutional violation why worry about the issue of fact about what mr mocking or knew or didn't know or why worry about the issue of fact exactly what mr justice did or didn't do but you know we have to define the constitutional right that we are going to use in and analyzing and reviewing the material issues of your honor i believe that yes that can be done is it strictly necessary i goes to the issues underlying  to the issues underlying the collateral order doctrine it's there to prevent piecemeal appeals whether we go on each each separate issue in a protected speech protected association case we could be up here several times desk saying that that justice had applied for the president acting or had laughed at ross and said now and said there's no and this is hypothetical there's your issue so we know what was done don't or perhaps re man the case to the district court to set up more precisely what the constitutional violations have been under that scenario your honor i believe johnson v jones and his  need to bring that to the court's attention did the court in this case determine there was a constitutional right that was violated that was violated no but they determined that it she i apologize yes judge robinson determined that the plaintiffs engaged in protected first of activity but did not could not reach the causation issue that means the facts i think i sort of got that impression reading in the the bulk of the opinion but this is a last sentence before the conclusion and she says the court reserves judgement on the issue of qualified immunity until such time as an actual constitutional violation has been identified here you make sense of that it seems to me that she says it constitutional violation has not been identified i don't believe a constitutional violation has been  i don't believe the court made a determination on the adverse employment action you think that's what the district court meant by reserve judgment i can't decide the full qualified immunity issue until the jury gets to decide the fact issue of causation until the jury resolve documentation to the court is that correct yes your honor of the i will readily concede this is this was an unusual set of briefing circumstances i've never before encountered at the time and to a lesser extent now the court has been struggling with the backlog due to judge jordan's promotion to this court and different judges and dealt with it in different ways judge sleet cut in half the number of pages he allows for summary judgment briefing judge foreign and has had has barred a concept from our state court system here holding regular motion days at the time judge robinson i'm not sure if she did this in off in all of her cases that were just in the cases which she inherited from the vacant judge ship which was judge which were judge this was originally this case was originally signed to judge jordan she ordered a short concise state of the facts and i believe if the court looks at page seventy right i think that's roberts explains a little bit what she was trying to do there and i think it was a little bit of a gatekeeper function  to see as a way to cut through some of the paper i don't have a better way of way saying that but she indicated that it's important to note that at this stage only the defendant has briefed it but so the court is reviewing the evidence to determine number one if summary judge if summary judgment practice now you i believe in your motion to supplement the record you indicate that there are documents as to causation that you would have provided to the court had you been permitted to have briefing testimonial yes your honor so that it's possible of this case to go back for one of two things either you supplement the record so that she can and then the address again the qualified immunity issue if she sees that your evidence is so persuasive  felt the court search the record for these things are allowed to do that yes your honor although it's often better when the lawyers i think i prefer doing it your honor i enjoy brief reading but your honor i believe that the court went through the record and determined that there is a to prove a negative if you have documentation and crafted transcripts of deposition that show the the definite involvement of macking or that he can only rebut by saying gee i don't remember that or you know when that didn't happen see me she could revisit the issue that's what i'm saying and she would read what i guess what i'm having trouble following is revisit the issue to do what to rule that there is a fact dispute and my case is not turned out to go to trial i guess   if you have your choice i just want to run or if there are no further questions up i don't really have anything that we haven't covered which needs to be addressed thank you constitutional violation you heard it from the plaintiff counsel they want to go back to trial because that's what the next thing would be going to be another hearing the remain over summary judgment time but i don't think it matters about that i don't think the causation issue matters i think you have could you respond to mr new burgers argument that collective bargaining in contract negotiations constitute a first amendment protected activity well that's not the way have to review what the district court said and if the district court said i reserve on the issue of qualified immunity because i cannot find i can't be sure there was a constitutional violation that's you know