schmidt was had a property right and in his continued employment that was derived from a state statute several states that you've won the civil service act and also the statute have permitted the collective bargaining  permit it is union to have collective bargaining rights on his behalf his union had a provision which provided for just cause before the suspension or terminations the other fact that is not in dispute is that he was suspended he was expended for an extended period of time pending the investigation of the alleged misconduct and the third probably the most significant fact is that that is not disputed is that he was not given a pre determination hearing before he was suspended now that the collective bargaining agreement provided for post deprivation remedy and he grieved it and turned out he was successful correct part that's the question partially success so i guess the question is to the extent to what extent is that post deprivation remedy sufficient to satisfy due process and my reading the the  determination you for a deprivation except when there is an emergency in this case there was no emergency under the circumstances and that's what we also believe is very straight for in this matter which is five want to argue that there is a question of whether or not there's an emergency that question should be presented to the jury extraordinary it's unusual circumstances that is not what happened here there was no explanation as to what the extraordinary or emergency circumstances were the only thing presented by the a pelleas was that they no longer trusted him because is that under the circumstances we don't believe that that amounts to a emergency mainly because the alleged act to place on july fifteenth suspended three days later before he was actually suspended the superintendent reviewed the matter he received a report he submitted that report to the personnel office the personnel office met with him and it's and it's other other  capitol police officials took the time to deliberate on that and rather than take the time to discuss the matter and that and happy a pre determination hearing with the appellant big jets suspended now i gather that he had been previously disciplined for behavior demonstrating a lack of professional judgment in the eyes of the of the party he had been talking and that they were saying you know we just because of past history we just couldn't keep him on the street anymore that he's you know he might do something it would be much worse and this your position is either that's not sufficient to to qualify as as the necessity to take fast action or that it's an issue of fact and should it's absolutely an issue of fact your honor in this under these circumstances this is not a renegade police officer who was shooting people was in danger in the public he was flouting the rules on a regular basis and this was its last and final the last final straw this is a situation where he was presented with a request by a fellow police officer to file a criminal complaint i'm not sure whether he exercised the best judgment in this matter but if any other member of the public presents him with a request to follow a criminal complaint he does it he did in this matter  superiors for upset with who he filed the complaint against namely them and they suspended him to do we have an issue of qualified immunity here asserted qualified immunity the judge will that there was no qualified immunity because he found that there was a deprivation of the fourth amendment rights fourteenth amendment rights  but on reconsideration he did not address that so procedurally we believe that that was never and we did not appeal that that was never appealed so that that is not before this court however in the event that this court rules that the entire decision should be reversed and qualified immunity should  may please the court my name is howard hopkirk i am a senior deputy attorney general with the pennsylvania office of attorney general i represent the pallies in this case officials employed by the pennsylvania department of general services and the pennsylvania capitol police the decision of the district court should be affirmed because under this court's prior decisions in dixie septa and jackson versus temple university officer schmitz due process r were not violated since there was an adequate grievance and arbitration procedure under the collective bargaining agreement with the issue of a pre determination hearing was never made in those cases right in she was never  a well that's correct but i think a couple things first there's no indication that there was any type of pre term anation hearing those cases were involved people who were terminated for for drug drug use and it was a very very quick ok the procedure for a quick so sh your explanation well there are two answers to that first the the major need for the immediate suspension was his position as a police officer and the issue of of trust in the community it was it would be similar to the home our case as far as the interest i do i do concede that there wasn't the the criminal prosecution or a criminal complaint having been issued which would give more reliability to that initial decision however on top of that there was the question of the bias of the decision makers and instead of having a pre suspension type of loudermilk type hearing before that they recognize that their position in the case made them inherently biased and so there's a procedure under state law to direct the investigation to the inspector general's office so if you look at the whole matthews eldridge balancing equation sometimes in order to have a more fair result it is proper to have a delay but if you're going to take that away during that period of delay cannot a very simple reach preacherman a hearing the hill i mean certainly the the mirth the emergency isn't so great that you can't go through the steps to create a nonpartisan unprejudiced who are but having process having no need to act immediately having having that situation where you can wait a few days shouldn't there be an opportunity in those few days for the petitioner you know what's going on and well look at the recent problem with the department of labor that if there is a simple explanation that will be few things terminations shouldn't that opportunity be given well ideally made you know it might be better if it did but i think here you have an unusual set of circumstances and the question is whether with the grievance in arbitration procedure which did exist together with the the totality of the circumstances whether that provided mr schmidt with deprivation hearing or breed deprivation process it doesn't say it doesn't expressly address that but it does say that the grievance in arbitration procedure can substitute for for due process and i think if you if you look at this case and you look at the different factors in the balancing test it doesn't make sense to say that the grievance procedures in dikes were sufficient but in this case they weren't and we don't know indicts what whether there are any pre depravation process or not is just not discuss because they're not complaining about right i mean i'll say that was a case which was dismissed on a motion to dismiss and the facts alleged in the complaint don't say anything about that it just says that he was terminated and he wasn't wasn't wasn't given that i when i read it i infer that he just wasn't given anything and then the the grievance procedure called a grievance  that satisfied the process that's how i have if you would agree with me that this court and these did directly and express lee address the necessity of free deprivation process right what do these though doesn't have that first of all that's a terminations decision i think the fact that this is a suspension and it's a suspension of limited time under state law so what is happening right suspension without pay without pay but for a limited time and so that is certainly well there might be there's certainly going to be a burden on the on the individual it's much less than when you're talking about a permanent terminations and you know so so that's one thing when you're looking at mathews that that's that's the difference between the terminations cases  but if we go back to the louder mel and gilbert the homer it seems to be seems supreme court says that some kind of pre term a nation proceeding can be very informal with notice and an opportunity to explain is required unless it's impractical or unless there's a need to act quickly and so if there's an issue of fact about the need to act quickly or in the  practicality doesn't this have to go back well i mean i think you know first that issue regarding the bias of the decision makers and the need to refer to an impartial decision maker is something which is not in dispute i don't think there's any way that a jury could you know find that they weren't biased and they could've held a hearing so i think you know that's you know a major thing combined with the type of position which this officer officer had i mean you get into a whole bunch of issues of well who do you who who would this impartial decision maker be the the case the the case says you have it was initially referred to human resources and they said well we can't make this decision either it's going to have to go to the inspector general and well you know three days i don't think in the grand scheme of things that three days was a long time and there was no i don't think there's any question that he was continuing to to work during this time and  that he was suspended to get him you know off the off the street as it as it would be  i think the grievance arbitration procedure in this case in other cases it vance's the correctness of the result and so  i think when you weigh that against the possible benefit of any type of precision suspension biased hearing in this case that that would have you know there might be there's probably some value in that but when you counter weigh it against the value of getting the correct result i think the cases home are and they do talk about the lay being justified especially when you don't want to rush to judgment and you want to avoid and a biased decision but that doesn't that doesn't that doesn't necessarily mean you can't have that informal pre determination notice and hearing you can have the final hearing later on but i mean i think and it's clear that i oppose depravation hearing could provide  in fact does provide sufficient due process but i mean if the government's put in the position where they're told well you have to have some type of hearing even if it's a kangaroo court type of hearing you just go ahead and do that as opposed to that in this case where it looks like the people realize that the fair thing to do was to not act as quickly and to not rush to judgment and because the grievance procedure was there i'm officer schmidt was able to get recourse in a relatively short period of time  taking the time to find an impartial jury taking the three days isn't there also then an indication that a slightly additional amount of time can be taken to have a very informal pre term a nation hearing if you can take three days what he take three and a half day whine and couldn't you wait three and a half  you know i i'm i'm not you know i don't know exactly why it transpired in exactly three days i do know that most of the time was over the weekend where you know people might not have been everyone might not have been available and also since they it was referred to human resources that for them to do something and then they decided well we can't do this it has to go to the inspector general and  that's something which is provided under state law and although mr schmidt he does have these property interests under state law in his employment these the parameters of of those rights are also defined to some extent by state law and the fact that state law provides this reasonable procedure to make the process less biased and to have an independent result to me th furthers the due process conceivably should hold that and with him except in emergency situations where something has to be done immediately not wait three days but in situations where you can wait for three days that is an informal pre determination you need to follow the informal predetermination if necessary what effect will that that have upon the practice procedures of the commonwealth of pennsylvania and their employment policy well i think you know cry in in most cases it won't have a an effect because the the general practice is to give that type of louder mill hearing before someone was suspended in in cases like this which are more unusual where it will tie the hands of people and and it seems to me will encourage people rushing to judgment and ok we have to hold a hearing ok we heard we heard you you're suspended now you know because they were there mind is already made up and and that was the problem here and and i think due process i flexible enough that it has to be able to to consider those types of situations and i think other circuits that have held a predetermination hearing if necessary and that collective bargaining situation what i know than the ninth circuit in if followed followed um jackson and was referred to in dykes as fo he could only be suspended for cause and he had you know he had he had rights under that and he under the grievance procedure he was in our opinion made whole which is another question as to what damages he would have after this because you know if you're talking about just the loss from not being given a hearing that seems to have been taken care of by the the arbitration procedure and which brings up another point regarding the efficiency of having these things decided through grievance and arbitration which has been decided you know a couple years ago as opposed to going through a court process which you know at this point if you were to reverse you know we're talking about you know a couple more years before you have a resolution and does that really you know you start off with saying three days is too long but then you end up having a five year process if you don't let these things be decided through the grievance procedure and you also discourage the commonwealth from entering these agreements if they're going to end up having to go to court anyway and my time's exhausted i think the court sees that in any case these issues are very confusing on and have not really been fleshed out or decided so even if as a rule you rule against us are defendants are entitled to qualified immunity that issue is before you because the other side the other side appealed the grant of summary judgment and you have the right to we didn't have the right to appeal because we were not aggrieved but the court has the right to affirm on any basis that's in the record and it was presented to the to the trial court thank you thank you very much back to the practice of the commonwealth of pennsylvania since the decision a lot or mill it's been pretty much universal that all employees who have collective bargaining rights and are given part giving pre determination before any actions taken against them the implications of this case is profound in that many employees do not have collective bargaining rights but do have civil service rights and the application in this case to employees who have civil service rights would this case would affect them in that if the come out had its way they could avoid the pre determination effect on the operation to the commonwealth this is the normal practice is for the commonwealth to give predetermination rights this is an aberration how does it work in the civil service in a civil service cont t individuals are given predetermination hearings but they have the right to appeal let's say an individual suspended the person would be given a predetermination hearing and then after hearing would say the person would suspend