morning and welcome to our record at the outset judge cards and i wanted to introduce again and welcome again to our court judge paul kelly who comes to us from the united states court of appeals for the th circuit he was appointed to that court by president bush in one thousand nine hundred and ninety two has served with great distinction since then and we are delighted to have him and we very much appreciate his service and his help on two brief observations before we begin for those of you who may not be familiar with our practices you will notice that there is a time clock letting you know how much time you still have left and there are lights  which obviously means you may perceive an amber or yellow light which is a two minute warning and a red light indicating that your time is up would be much appreciative if when you see light come on you could bring your remarks to a conclusion it doesn't mean you've got to stop in the middle of a sentence or a thought but we'd be much appreciative if you could bring your remarks to a conclusion as one of my colleagues is fond of repeating the red light isn't aspirational the nd observation for you as you proceed with your arguments you may safely assume that we've had a chance to review the briefs the record excerpts and in many instances we've had a chance to look at the record as well in the case so feel free to go right to the heart of your argument without again welcome and will begin with tracy versus florida atlantic university you may proceed counsel thank you a you did not do that instead they found a pretext for terminating professor tracey because of his blogging activity now under the  line of authority professor tracey was not required to exhaust her administrative remedies but more to the point or as much to the point if you look it provides of the sole method of doing a grievance but it does not require grievances be made and in twenty point too the very next provision that's caption resort to other forums and it explains that you can bring your or your cause of action or your claim in court or administrative previous proceeding or somewhere else and if you do that the university is not obligated then to proceed with the grievance procedure because you're in another court so there was no obligation to grieve any claim here because the district court dismissed recounts based on its belief that there was an obligation to grieve the court has to be reversed on that ground alone for those three counts we've brief that in our kate in our in  that i think the other side everyone has agreed that there is no obligation to exhaust administrative remedies for constitutional claim unless congress has carved out an exception to nine hundred and eighty three so we make two arguments st we say the policy with respect to reporting blogging for conflict of interest purposes is unconstitutionally vague because that policy is vague he could not be terminated for it so that's full stop terminated for what i'm sorry for blogging well that happens in blogging well i'm a guess and i'm a little confused blogging explain that in two thousand and thirteen or twelve or thirteen whichever you want to consider because they think the ruling would be have been in two thousand and thirteen if the court looks at plaintiff's exhibit as fifty six and seven which is upsetting everybody that that he was his disclaimer was an adequate because he although he said these were his own views he still identified himself as an f i you professor well i thought they w bad out in that if there's a disclaimer that they had signed off on and that that was just fine and now we're into a different year or several different years and they get a form which he deliberately refused to fill out and sign yes you know there's now where is the blogging right in the form of get to that so the rd ground in two thousand was that he didn't disclose the blogging he responded i don't have to the policy doesn't require that i don't see where it requires that it's st amendment activity so i don't have to do that was required to do was change his disclaimer right so that he didn't identify and he was not required to disclose the blogging any merrily continued on blogging for years for two years and during that time it continued to be controversial pressure continued to build and complete the conflict of interest form and did he check off the box as they requested yes or no no we didn't all right ok but your honor my point is that you don't fill these forms out unless it's only for a reportable activity one of the things that they try to gloss over is the notion that everybody fills out this form but you only fill out the form for what are called reportable activities and at trial it was  years all the years that she had looked at these forms she had never seen one when and where any practically member disclosed blocking the testimony also was at least twenty factually members were blogging and the university knew or engaged other online speech like facebook and twitter ng and so on and the and none of them disclosed if so was there a testimony that they had signed the form or check the box huge they didn't you only do that for an activity that's reported will you don't you know it is in some form that applies to everything you only do it if it's a reportable activity and and the crux of our argument on vagueness is blogging is there is no blogging policy the conflict of interest provisions of the c p a all the regulations the statute it's based on none of them say blogging is a report of all activity what the university is saying is that well the the term professional practice is broad enough to include blogging but professional practice is not defined and i think my guess would be any only can guess is professional practice refers to like a lawyers braggers a doctor's practice psychologist or many faculty members why didn't he fill out the format and say i don't have any conflict of interest two reasons your honor he didn't fill out the the form at all that is the only fill out the form for activities that a report of all so it's up to a faculty member to decide whether or not he would choose to fill out the front well there's the testimony on that that that's an honor system and that so on but let me get back to your question judge perry why didn't he do it well the  reason is as the testimony a trial established the reason they want they want to have this disclosed is that they can then manage approve or disapprove the activity and his position was that this is protected expression it is not subject to governmental approval or rejection it is in fact protected and i don't understand  all you do is you fill out the form so this is what i'm doing i don't think it's a conflict i'm not even sure i have to do it but out of an abundance of caution they come back after him later because they don't like the content of his blog you've got a case but to do what he  having trouble understanding his motivation well as i said one reason is that the purpose of the forum is so that they can approve disapprove or manage the outside acted on let them do it let them fire him let them stop it yes and we had some links we argue in our brief that st of all blogging is no more mention that nd the there is no blogging policy but but also it's not mentioned in any of the different provisions and conflict of interest and there's many there's there's i think we made a whole list of them for you tell me what the most salient a language in the policy is that you perceive as being unconstitutionally vague ok they are saying their whole sole basis for saying blogging has to be disclosed is the phrase professional practice me finish if i could you know the exercise of a professor at a law a profession or an occupation or something like that wouldn't most people know generally what the ordinary meaning is of serve as fact remembers but they have a professional practice right but i want you to tell me is what there is inherent in the phrase a professional practice that is unconstitutional they too are personal of ordinary understanding it's unconstitutionally vague with respect to requiring blogging it know there is nowhere no way you could read that as giving someone reasonable notice that blogging is required and because that's the case that allows university officials to selectively enforce it and those are the two cardinal sins of they just that your honor identified for eight judges in the whole slater case what happened here is for two years he blog after a discipline that said you shouldn't blog and then was resolved saying all he had to do is gives a disclaimer and then all the sudden they decide because things get controversial again so you ask the question why didn't he just do it reportable activity that triggers the machinery of the university to be able to but i guess a question like this mike yes the question my colleagues are asking you is why couldn't you just fill out the  and say i don't believe blogging is something that i'm obliged to report because as i see it blogging as it's incidental to unrelated to a professional practice or professional application yes because i didn't know he could have done that couldn't he it's that he said i'm not filling your form out at all thank you very much what he said was the policy does not so far as i can tell from it it does not require blogging i'm the only one being required to do this even though lots of other people blog and the only reason i'm being required to do that is they don't like my speech if i fill this out then i'll have the admitting to two years where i didn't report it and i'll be saying this is  tracy's protected speech was not the cause out this terminations and therefore the retaliation claim failed why isn't that the end of that piece of the case the well several reasons but the st and most important is that this court under both sides and there's a very nice statement of bo's in a decision by judge perry that we note and  this court has to conduct an independent day noble full record review of both the constitutional facts and the law in a st amendment case and we're saying that the jury verdict does not survive that level of scrutiny now why doesn't it well st as we've said blogging has not been require foreman just did he do he did but my point is he's not teaching it he very leave is a total red herring no no your honor what the argument we're making is that because he's on paternity leave he doesn't have any teaching obligations that so if he has any commitment of time to blogging it isn't interfering that well ok ok and then with regard to remuneration they argue that he he took money but the record is clear that unless the remuneration is ten thousand dollars or more it's not reportable not reportable his remuneration was an eight hundred and fifty dollars in contributions to his blog they also say well you know he he wrote a book but he didn't write a book what happened was two editors got together and they put out it and dollar g e and all kinds of writings a whole bunch of writings on sandy hook they called him up and said hey we'd like to use two eggs or it's from your blog will you let us he said yes he received an eight hundred dollar on a honorarium from that after he was terminated and on and on it goes every fact that they say shows that there was a reason for doing this and remember this form is to disclose it outside activity they all all the activity it's accessible to everybody you can go look at it i think we've got it i don't mean to cut you off but where well over the time it will give you the full report but i'm going to let you want to continue and eat into the council say that the policy didn't address blogging as though it would have to have a separate provision to deal with blogging blogging is just a web log it's information that just happens to be on a computer screen on the web the internet the internet it's like an editorial in a newspaper that can just be accessed by anybody who has access to the internet that's all it is the reason a blog is obviously something that needs to be reported is because of its impact on the employees time or possibly on his obligations to the school it is speech just as if it was written in a newspaper in a book or anywhere else or on a soapbox so to say that the policy didn't specifically mention blogging well i think the policy probably doesn't specifically mention every kind of form in which speech can occur that doesn't mean that it wouldn't be reportable and a great example may be among the top reasons why the form needs to be filled out and section one thousand exists in the collective bargaining agreement is time conflicts imagine if an employee is maintaining blogs and similar things and spending forty to sixty hours a week on it  well that's not reportable well does the university not have the right to say well what is your plan for committing forty hours a week to the job we're paying you for to the betterment of the institution me  focus a couple of questions i have absolutely among other things you argue that tracy's failure to grieve under the agreement supported the district courts grant of summary judgment and  retaliation for his allegations or television for exercising his st amendment right to free speech we do not contend that that had to be grieved that is not an argument that was made and of course the district court did not that's correct but the claims that he called a constitutional they claim constitutional as applied claim those are misnamed those are not constitutional claims that the claim being made is that a provision in the contract vague so i don't think i should have to follow it right that is not a constitutional claim there is a remedy for disputes about contract terms and that is the grievance procedure there's a difference between in all of the case law that they propose that the court deals with situations where either a law has required someone to change the way they speak so that you don't have a st amendment right against a government entity imposing a law on the on the pla a case involving retaliation which that's not a contract like the congress has determined that the section one thousand nine hundred television claim can always be brought in court regardless of whether you have a contractual relationship with the defendant and that happened here and the and the plaintiffs got a jury trial and can each challenge a provision in the collective bargaining agreement not as a kind of scrounge only in the grievance procedure that it's a contract claim there was no case in this country that anybody could find where someone could bring a constitutional vagueness claim based on a policy or a provision in a contract and there's a good reason for that so your view is even if it is meaning and didn't accord proper notice his only remedy was to be more to challenge the c p a he could do better than that the c b a not encourages informal resolutions of simple disputes why not as your honour's have suggested just fill out the form or ask a question i'm doing this is that reportable let me ask you this is this a profiteering matter and i've asked this question of mr overman did the university require everybody to fill out the form or was that something that the professor was treated do or not depending on whether in his judgment there was something reportable right much like your time deadline in court here it was not aspirational it's required article nineteen of the collective bargaining agreement specifically lays out the requirements to advise the university when you're going to engage in specific activity the form we're talking about just implements that policy i think the article nineteen but if i didn't engage arguably in the activity was i required to fill out the form if you did not engage yesterday i'm a professor at the university and i didn't do anything that came within a country mile of what the policy said which i were quired did the university require me to fill it out was everybody required to do that you had to work fill out if you have something that is what they say the answer is no unless in my judgment i was of the view that there was something reportable anything that takes to let me come at it in a different way as a federal judge i am required as is every article three judge in the united states to fill out a financial disclosure form i got to fill it out whether i think it makes sense or not if i own one share of coca cola stock common stock i must it is your view that under these rules of the game a professor was required to fill out these forms under all circumstances or did he only have to fill it out when there was something were  you understand the thrust of my question i'm not sure that i i understand how this worked at the university i'm trying to have you folks sort of eliminate that for me you know if you're asking whether the professor has to sign a blank form if he's not engaging in any here's the form fill it out whether there's something reportable or not i have that right i don't know if they had to sign a blank form i just know that they had to report outside activity as that for the if they had outside activity they had to report it for sure that's right if they didn't have outside activity they didn't have to report it if they had no outside activity there would be nothing to report i don't therefore they didn't have to report it i'm not trying to quibble i'm just trying to understand whether it was  mandatory and who made the decision it was mandatory to report if you had an outside activity that was reported that part i know for did you have to check the box to agree to report outside activity yes you did everybody had to check the box yes as of two thousand and fourteen when it was added it was an online system where to accept your assignment for the next school year which included the the classes you were going to teach and other things you would have to do you also had to check a box acknowledging that you were obligated to complete the form relating to outside activities and everybody had to do that everybody did it except for one person  so the point i was making about the legal question is is there an action that can be brought in a court of law because you think the contract you agreed to enter into is vague no but the reason there is no case law about that is because you had protection you agreed to this you entered into the you negotiate it you accepted employment on those terms why you can bring a constitutional claim with regard to a law is because you didn't get to sit down and negotiate it that unilateral the government passed a law and said now everybody has to follow this and that's why we have the bill of rights to protect us from perhaps an overzealous action by the government that's what the st amendment is for it's not needed for contra you cite talks for the proposition is that a provision in a collective bargaining agreement cannot be challenged as being unconstitutionally vague that the remedy had and the sole remedy that he had there are other cases that kind of suggest that that's not right although they're not squarely on point one that i looked at hamilton the postal service the th circuit entertains a  to a postal service policy regarding discipline for excess of absences and the court held that the standard for discipline in the collective bargaining agreement was not unconstitutional not that they can this challenge was how otherwise unavailable doesn't mean they squarely faced exactly the point you're making here but it's suggestive there was another case that came out of  did not the doctrine didn't apply at all we've never addressed it maybe you're right about hox maybe you're not but let's assume for the purposes of by question that you're wrong and we have to actually go to whether the policy is unconstitutionally vague is it no your honor tell me why not because a person of ordinary until this is going to understand the definition of a reportable outside activity that means any compensated or uncompensated professional practice consulting teaching for research which is not part of the employee's assigned duties and for which the university has provided no compensation the guidance from available to the employee as to the reason for that form tells you what you need to report they're concerned about time conflicts that's that's the number one thing if you're spending time on it the university has the right to know it being a professor at a modern university is a privilege it's a great gig there at the university for a few hours during the week teaching classes and the rest of the time the university doesn't know where they are they're not accounted have to sit in an office are not visible from nine to five and so they're being paid for a forty hour work week the university surely has the right to know if they're involved in other things that may make it difficult or impossible to carry out their functions for the betterment of the university and its students they're just asking what are you doing what is the harm in asking what are you doing how can an employee say i'm not going to tell you what i'm doing even though you're paying me for this time because i'm afraid you'll abuse that information as you said judge barnes fill out the form as the union said fill out the form if the university then abuses that information then you have a claim and by the way at the end of the grievance process of an employee is not satisfied that it is reviewable but it's it goes  arbitration and that's reviewable in court but that is the procedure that every employee agreed to when they entered into this agreement by taking a job at the university and that's what makes it fair that's why we don't have constitutional plaintiff should not have constitutional claims i can't speak to the hamilton case your honor it may be that counsel didn't raise the issue that happens a lot but the point is when you've agreed to a bilateral contract and you've agreed to the remedies and your complaint is about the application of a provision in that contract whether you think it's vague or unfair or whatever you are left to the remedy that you also agreed to it wasn't imposed on you you chose it district court held that tracy lacked standing to pursue the claims after the jury verdict on the retaliation claim i'm not quite sure i understand why the district court said that are you defending that position i do you think that tracy was out without standing to make these post verdict attacks with respect to the retaliation claim it wasn't there remain not be right on the merits but affirmative but i think the judge is right what she was saying is that the plaintiff did not have standing to bring the constitutional vague claim to constitutional as applied claim with regard to the policy it didn't have to do with the jury verdict and attacking the jury trying to still attack the summary judgment and i could hear tracy has appealed the jury's verdict on the retaliation claim and if he otherwise was right he would get a new trial and he could be reinstated as a professor of f a you it seems to me is article three standing is exactly the same post trial as it was pretrial maybe i'm missing something ok right and you know what and i don't know if the judge's opinion explained this clearly enough but i believe what she was saying and certainly the argument i would make is if the jury verdict is upheld then there's no standing on the other counts because the other counts not reinstatement the jury  already determined that the plaintive was not improperly dismissed from the university and so if that can't be reversed then there is no point even if there was some proper basis to bring a constitutional claim on this contract provision there's no point in doing it because reinstatement is no longer possible that is what i understood the judge to be saying quite anything further on the post trial attack on the verdict we put in our brief a long sampling of the evidence that that easily provides a legally sufficient evidence for the jury and is only as the trial judge says the great weight of the evidence supported the defendant's case such that if the jury had come down the other way the truck court should have been seriously entertaining a new trial for the defendant sake were they to move for a new trial i don't have time to go through all that evidence but it is pretty well covered in our brief the judge highlighted some of the evidence and then she talked about how plaintiff's evidence was questioned in every possible way and one piece of evidence i want to point out this the decision not to check the box and fill out the forms for the reason that plaintiff counsel has labeled it occurred and the university didn't ask the professor to stop blogging didn't even try to do that didn't ask him to stop talking about anything in particular the university was then being besieged by media or calls for the firing of the professor students for withdrawing don't ors were becoming reticent about their commitment to the university so if the university was going to do something to try to limit blogging or limit st amendment rights that would have been the time to do it instead they just said please include a disclaimer so that you are admitting that you are speaking for yourself you can't speak for us professor agreed to that didn't follow through they had further proceedings that resulted in that settlement in two thousand and thirteen but that's how the university handled that university knows it can't tell the professor what to say and what not to say but it has a right to know what he's doing thanks very much f position on hawks is that it's in apas that because it doesn't involve the st amendment it doesn't cite any authority no authority follows it and it's not in the circuit but also hawk extends all that and there is no congressional carve out for a case in which there's a c p a now they say a reaches that stuff i will tell the court and i apologize to the court but last night we found a case that was decided june six june rd two court said that's a good cause of action you can assert vegas with respect and it was a university policy you know that wasn't a statute it was a sexual misconduct policy and we also found because we thought this might come up to other cases that do hold the same way national abortion federation versus marta which is one  twenty and marta this court may be familiar with that it was the atlanta case involving the metro system and they had a policy and the court held that it could be challenged for vegas even though it wasn't legislative and then there is a six circuit case the same circuit as hawks which holds that a policy that related to racial racial discrimination or racial harassment could be challenged under the veil under vagueness even though it wasn't legislative and it was a case if i could just make one more point hawks is is in app is it for another reason the policy here while it's him in this c b a is required by florida's statute chapter one hundred and twelve point three hundred and thirteen which says it which imposes a conflict of interest requirement it's then required by university guidelines i think we've got that i'm sorry i think we've got i think we've got the issue ok and i think we thank you for your efforts could i add one thing your honor sure dean colt coleman who was in one of the two officials involved in the firing was asked whether or not blogging is a reportable activity and she said it deposition i don't know a trial she was asked the same question and she changed her testimony but she changed it to well i think it would be determined on a case by case basis and the problem with that answer is it's no better in a vagueness case if you have to wait for a case by case adjudication you haven't given the notice and their testimony is that just give me a nd i'll give you a citation it said transcript volume five at tool lab and it's in the appendix that nine thanks very much one final thing if you'd be kind enough to submit a twenty eight year letter within the next seven days to the court copies to your colleague laying out the citation to these three cases and we will give you an opportunity within the same seven days to file a twenty ha let