please the court opposing counsel my name is kim but what chance are present my client appellant william daniel gusman i'm sorry short before i begin your hours i'd just like to say very quickly on the record this my st time ever giving oral argument of circuit i'm very proud of this moment of my career th the factual backgrounds i will jump on to legal issues there's five topics i was the st at the district court everyone i dismissed mr short's property interest claim because mr schorr did have a property interest claim in his continued employment insofar as he case mr gusman did not brief the issue on the motion to dismiss the directors only briefly in passing and only with respect to their individual liability not their official liability in their in the district court in disgust at all when it dismissed the complaint which was error you're right about that the just sort of got ignored the liberty interest claim but it seems to me that's the perfect opportunity when you should ask for reconsideration in the district court and say oh you know you just forgot something let's get this cleaned up and get  on before we go on appeal and that that would've been a much better situation than we're dealing with now so why didn't you at tell the district court that it had neglected this client i think it was it was a consideration or honor of wine we felt like we were going to lose the ability to appeal  to this court if we didn't ask for reconsideration and two we knew that there were other issues that we were going to have to appeal to the circuits rather than stretch out the delay for mr short any longer than what was necessary we decide to consolidate everything and into the into the the circuit appeal one of the reasons why we did that your honor is because as alleged you know this wrongful termination is really destroyed mr short's entire life his career his law enforcement career knowledge he still unemployed and he has been completely blackballed from the law enforcement community so we want to kind of streamline everything to try to get the issues up here while we could the remaining issues your honor are that fundamentally in this kind of a crux of the entire legal issue the compliance directors are not receivers of the court even if they property interests claim i'd like to tackle st under classic supreme court jurisprudence and in the in the latter mill case if a public employee is only terminable for a cause then before you terminate that employee you must give him a pre depravation hearing doesn't have to be elaborate but in this case as we've alleged properly no st amendment in the complaint absolutely no terminations hearing was given whatsoever they notified mr short that he was trying to by certified letter to his home the question here and what everybody disputes is does the stipulated order create anough of a terminable for a cause relationship that he has a protective property interests against that question is absolutely yes before we get into anything about louisiana state law about employment at will doctrine about what the stipulated says or doesn't say i would like to say this this is a rule twelve b posture case and mr short proper we alleged in his st amendment complaint that sh class plaintiffs and the united states government all specifically dickered and negotiated paragraph d sixteen of the stipulated order specifically to protect captain short people with the rank of captain hire from at will terminations and that is exactly reflected in paragraph d sixteen because it lists out all of the reasons that a person captain or higher could be terminated for cause and if it just didn't stop with the st reason which was misconduct and said he had the power to terminate only from his conduct you'd have a i think a much stronger case what do you do with the additional provisions that say people can get terminated just because of budget shortfalls or are other management type issues like that's a great question your honor i'm an employment lawyer by background and that's all i do is employment law is absolutely the case that that language is completely consistent with what this court would consider as just completely undisputable terminations only for cars language for instance in louisiana if you're a louisiana state employee a classified permanent civil servant you can only be told they have a cost unless this happens all the time i've litigated these cases your agency has a budget shortfall and they abolish your position and then all of a sudden you're terminated not for cause but because of the  of state government required that should be terminated as all the paragraph was doing it said if you commit misconduct or things that are beyond the scope of control from a from an employer institutional perspective happen we can get rid of you that it wasn't saying that if there's no money in the jail you know mr short everybody else you're locked in we're going have to go into debt to keep you here just said it's misconduct or we run out of money or we abolish i mean to say boss your position but operational efficiency these are all things that exist in says whether we're looking at a statute here we're looking at basically a quirk consent decree essentially it seems to me that there's a reasonable dispute over the interpretation of the stipulated or i mean i don't think so i think it's clear but obviously the defendants disagree with me this is before this court case were sheriff's deputies and captains what was their status under louisiana law could they be removed at will absolutely terminable will and that is the one of the key points that a lot of strange to think that this court oversight gave them more protection when it's put trying to put this this person in place to clean up the jail and have a lot of power to fix problems with the jail and yet we're going to give more protection to the employees than they had before oh no your honor i think it's exact opposite if they wanted to keep employment will not decent would exist if the sixteen wouldn't exist if they didn't want to alter the contractual relationship between the compliance director share of gusman as employees the only reason why that provision exists which is exactly what is completely clear in the easiest from court has said employment is a contractual obligation the parties can make exceptions to the at will doctrine the employees can do whatever they want that's all that we're saying here is that they contract it to do what they want to do i like to quickly i guess we covered the literally a liberty interest claim so i guess i want to talk very much about the receivership ok the compliance directors are not receivers in the sense that dependence are using that mean that they are not equitable opposite appointed by the courts discharge the court's equitable duties the defendants cite to the plotline of cases in the th circuit for a lot of their support before we go any further i'd like to point out that the th circuit in the plot a line of cases specifically held in two thousand and ten this was cited in my will twenty eight j subliminal notice that the receiver is not judicially immune from a breac discussion about this plot it was decided on the merits the judge after adjudicating case on the merits we lied on the court's equitable side the equity jurisdiction to appoint a receiver in equity to take control of the prison reforms or the prison federal common law says that when the parties confect a consent decree or stipulated order the nature of that order is bound by the contractual obligations that the parties agree to so what does that tell us that tells us that the stipulated order and all of the judges decisions are on the last side of the court not the equity side so already there's a fundamental jurisprudential distinction between equity receiver and the law receiver but when we get into the the guts of the stipulated or the plot agreement which has been cited to in the record but it wasn't  part of the record but it was cited to something it's incorporated it specifically says the receiver on his staff shall have the status of officers and agents of this court will be best was same communities as best in this court nowhere in the stipulated order to say that their receivers that there are ages that the agents of the court that their officers of the court that it says that their representative the court doesn't say they have any immunity as it's nothing of that and the and so it's very distinguishable from those cases i point out that in two thousand and twelve in the  circuit there was a prison reform case where there was a court of appointed administrator and that was a wrongful termination case where a former jail employee or juvenile detention facility and the th circuit said after the supreme court's decision in force or b the nature of what the compliance director may nor does the order doesn't say that he's a receiver the order doesn't say that he's an yone the united see order does give him specific authority over personnel decisions with with the language you're talking about on the property interest issue so why doesn't that extend immunity to him for those personnel decisions again a great question or honor it doesn't because one it's the nature of contract and it is what it is doesn't say  immunity but comparing it to the plot agreement which the defendants st did the plots agreement specifically gave its receiver all the same powers that the secretary of the of the prison system in california had what is the stipulated order agreement does clearly the stipulated order and the very st order this entered into by judge africa in the jones case makes clear that sheriff gusman appoints the compliance director judge afric can give veto authority yes approve it if he doesn't approve it it gets kicked back to the indicated before which is if o p s so or director main are decides that some positions don't need to exist anymore they can abolish those positions but this is not just a reduction in force this is anything that is consistent with operational efficiency this sounds much broader and frankly much broader from the standpoint of discretion and what kind of hearing would you expect because as another duty officer this is just the efficiency of the operation i debated whether or not i was going to give this answer by guess i'm go and he's terminable only for cause and so to answer your question directly judge show what i would say is whatever you believe that paragraph d c sixteen means or does clearly under d c sixteen if you've attained the rank of captain you cannot be terminated for wearing a dumb necktie to work and if we believe that if we're at that point the nothing else matters because at that moment when you can no longer terminate an employee arbitrarily for no reason at all he's terminable only for costumers the regime pardon my ignorance what was the regime prior to the order at will completely or no police union rules or even the there's police union statues but they don't apply to the sheriffs the sheriff said it's well understood that before the stipulated order or in the absence of stipulate or you know it's want to protect everybody from terminations once they know you can't blame what is the hearing that you're expecting i understand the hearing when it's about misconduct and you're basically trying the factual case if you will against the officer what is what is the hearing look like when it's about efficiency well your hon see i would say that the with the merits of the hearing would be whether or not that that was a justifiable operational efficiency issue and that captain short would be allowed to go on to make his case i mean the supreme court doesn't say that has to be a formal trial it just says you have to give them the it for misconduct so again bad answer my question though is we're talking about just a legal issue of how do we interpret this order best case for when an order provides for a new set of employment terms along for termination for any number of reasons including operational efficiency but that's something that we should consider for cause i would say that the contracts which were so i'm not of or of a case in which that specific language operational efficiency has there been litigated or if this is the exact same case and they said mr s we had to fire you for operational efficiency not misconduct and i still made on the mill in the letter home i'd still be in here saying the exact same thing which is that they couldn't fire him because you were a dumb necktie it doesn't matter what the hearing looks like it doesn't matter what the reasons are doesn't matter what the merit based offenses are the supreme court primarily address this so to state a claim i'm happy to answer any questions that you this court held in one thousand nine hundred and five davis versus bailiffs court appointed receivers act as arms of the court and are entitled to share the appointing judges absolute immunity provided the challenge actions are taken in good faith and within the scope of the authority granted to the receiver during all relevant events in this case gary maynard was the compliance director was appointed by judge africa and the judge african the eastern district of louisiana to exercise final authority over the orleans parish jail on behalf of the court to bring it into compliance with the class action suits and judgement he served at the pleasure of the court he was answerable only to the court and removal only by the court and that court the point in mr maynard has subsequently confirmed that the compliance director is an officer or agent of the court and the functional equivalent of a court appointed receiver let's say mr maynard fired twenty deputies and they were all women even though women are a very small percentage of of the workforce in the sheriff's office you're  whether that would that would fall into that category and that is the question of could the receiver reasonably believe that firing someone because of their sex is carrying out his orders in good that what about a contract claim if if maynard hired some people to help him some consultants and there was a contract and he didn't pay those consultants would they be able to bring a contract claim against  is a harder question i think i i'm not sure i think it would depend more on the facts of the case i think i think it is within the power of the district court t impair the operation of state law including contract law i think if it were necessary and proper and in effecting compliance with assent judgment i think it would be a question of whether that was actually a compliance directors scope of his authority in firing mr short the stipulated order gives the compliance director final authority to terminate employees captain or higher i think and you discussed a few of these misconduct failing to satisfy job expectations financial prudence operational efficiency and and a catchall it had been in progress toward the consent judgment compliance and i think the last one in particular i don't see how that can be read as anything other than a purely discretionary decision by the quote by the compliance director that for whatever reason he believes that compliance toward the consent judgment is going to be served by firing this person i decision to terminate mr short was made based on a factually incorrect assumption or belief it would still not be beyond the authority of the compliance director to mr maynard is absolutely immune from any claims based on terminating mr short  there also official capacity claims against mr major to mr hodge official capacity suits or in reality suits against the entity for which the officer that our agent is an officer agent and  again the district court who appointed who created the position in appoint and the compliance director has confirmed to comply as director is an officer agent of the court so an official capacity suit against the compliance director is in fact a suit against a federal court order by the district court that's subject to modification any time by the court to that will terminate when the court finds no longer needed i think under those circumstances it it does not have the permanence and stability that it would give someone a reasonable expectation of continued employment liable for forty thousand dollars liberty interest claim and there's also no clearly established law saying that the opportunity to mr short had to clear his name was and was inadequate and he was given the opportunity to produce a prescription for the it please the court my name is rebecca cooper counsel for pelley sheriff marlin gusman ultimately nearly all of the issues in this case can be resolved by a finding that sheriff's deputies including captain short were employed out will this court to find in favor the and affirmed the district court's dismissal of the suit for three reasons st plaintiff william short does not have a property interest and his job as a sheriff's deputy nd louisiana's drug testing laws do not provide a private right of action for wrongful termination and finally plaintiff has not been deprived of his liberty interest as the st point the plaintiff has no property interest because he was employed on that will be says as has been thoroughly covered the baseline assumption in louisiana is that all employees are employed at will those that will status is not altered by going manuals policies grievance procedures and specifically sheriff deputies are at will and serve at the pleasure of the share now the only way that the plaintiff could have a property interest is if that calculation was changed by the stipulated order however the stipulated or simply does not change the status of mr short to begin  was not a party to the stipulated order nd of all the stipulated order doesn't use the language of clear or good cause and this actually stands in contrast to the compliance director the compliance director of the parties can petition the this absence of the language of cause or good cause really is similar to the case of evans vs city of dallas in that case a probationary employee could only be terminated by the city of dallas for valid reasons it was the language used the and the court there said valid reasons is not good cause it's not just cause valid reasons is merely a procedure with which terminations may be accomplished and that's pretty much what these reasons in the stipulated order are they not cause they're just considerations of procedure through which determination may be accomplished additionally the stipulated order gives reasons other than calls for terminations as judge hope pointed out operational efficiency additionally financial prudence those are things over which an employee has no control additionally the reasons that are given for terminations are incredibly broad and give wide discretion the compliance director for instance what does failing to satisfy job expectations mean that could just mean hey things are working out here you know we have a personality clash that isn't necessarily something that an employee has done wrong it just means the compliance director says you're not the guy for me and particularly in this case where the client's director has such an important role of trying to turn around the shell get into constitutional compliance he needs to have the top brass working under him really be able to respond to him in a meaningful way and so that is why the the language is likely drafted so broadly to give him very wide discretion and carrying out his maynard clearly made the decision to terminate the point of could the sheriff and i know you think there's no property in this and all that but could the sheriff be subject to sued for that decision if there were a valid claim if you did have a property right  well i think that would be a difficult position because under the stipulate or the sheriff doesn't have firing power or hiring power so he's not the ultimate decision maker if the stipulate order was i imagine probably was this case is also quite similar to stem the gomez in that case the texas state statute the texas legislature passed a statute that said that law enforcement officers against whom a complaint had been filed could only be fired or could only be disciplined after receiving notice having the hearing and there being evidence to prove misconduct there the court noted that the statute did not explicitly say that these officers could be fired only for cause and it found that the the legislation didn't constrain the city and any meaningful way from just charging its employees rather the court found that there is no property roles only provide considerations for the exercise of discretion that is exactly the situation we have here we have five broad reasons that give why discretion to the compliance director to terminate an employee those are merely considerations for the exercise of discretion it is not a property right as a final point on this issue the stipulated order is simply too vague to be the basis of a property interest this is a temporary document that is set to go away really at any moment judge efforts discretion once judge effort finds that the jail is making material progress toward substantial compliance with the consent judgment there will no longer be a compliance director there will no longer be a stipulated order and any alleged property interests that these certain employees have will go away which kind of leads to potentially absurd results if there is a property interest does that mean that judge africa has to call all captains or higher into court and say all right show me that and provide them notice an opportunity to be heard before he takes away your property interest by getting rid of the stipulated order i mean those that leads to absurd results if you say that there's a property employee he acknowledges that there he does not contest that there is no cause of action under louisiana's drug testing laws sanchez the case that we're referring to sanchez to clearly states that louisiana's drug testing laws do not provide a statutory basis for wrongful termination claims and this holding is not limited to our will employ as a further point since one thousand nine hundred and ninety nine court has found the cause of action for wrongful termination as a final point there's been no deprivation of plaintiff's liberty interest because the claims against him were false plaintiff says that two o p s employees stated that he failed a drug screen and plaintiff admit methamphetamine actually he felt for oxy codeine without a prescription this is a distinction without a difference no law enforcement agency will care what the drug is that you failed for they only care that you failed a drug test and they can't put you in charge of enforcing the state's laws watching over inmates if that is the case so basically because what these alleged these employees legibly said wasn't false there can be no claim there for the foregoing reasons i i have to be quick you're ourselves one cover a couple of points that's exactly what the defendants are going to do they're going to say if this court upholds the immunity defenses and etc they're going to say you know what director mayne are does everything bad and he's  gusman doesn't have any control so from now wanting that direct i mean are does in violation of state law federal law doesn't matter you have you are barred from the courthouse this is exactly what the th circuit said in the med decision which recited in the rule twenty eight supplement a quote from a receivership does not create a liability free zone for the business or organization is subject to the receivership a rd party cannot be left on the cold with nowhere to turn because that's exactly what the receiver in the prison system did in the part of any cases they start saying w bayless is no bar to finding that director may not have does not have judicial minority whether under the law of it or the th service will ordeal orderliness davis the bailiff's simply says that in a state court judgment debtor proceeding if you are an actual receiver if you're a trustee and your task is to go out and to find assets in liquidate them for the benefit of creditors and you take your job in good faith and you only do things that within the scope of your job then you have judicial munity i won't rehash it they're not trustees they're not judgment credit you are not trying to find assets for judgment creditors and to the extent that they was conflicts with force or be white which is the supreme court's binding  disagree on to the extent that we restrain an employer's ability to terminate an employee for any reason now that employee is only terminable for cause and on the supreme court you must give that person a healing amount of time again thank you for the