good morning and make it please the court my name is ken waterson i'm here for the appellant the university of pittsburgh with the court's permission i would like to reserve three minutes for rebuttal granted just a little bit of housekeeping i have two issues here and i notice hartmann reminded someone earlier not to miss the second issue and that's about the sufficiency of the process but i'd like to start my argument today talking about the first in a foundational issue of whether the plaintiffs in this case a ten professor had a protected property interest in the full amount of his salary and don't have a problem with that issue right out of the gate because as i understand it your argument below was that there's a property ri tenure but now you're going on appeal is the property right is feathered and all this exactly your honor and i was going to say i have two things that i need to take in with you're correct the district court rooted in tenure and tenure lown that just doesn't a the chase meet white roth says is required federal courts don't create property rights you need a legitimate claim of entitlement in an independent source i state statute a policy much like exists in the justify or defend the district court's rationale that tenure alone provided a protected property interest in the full amount of the salary and instead pivoted to argue that the waiver problem here is there an issue yes this court of course well knows if confirmed on any grounds we did not pass a waiver argument in our reply brief plaintiffs did in the briefing below invoke the statute the argument might have been ill excuse me the policy you argued might have been slightly different but nonetheless the plaintiffs did point to the policy so let's let's assume we're talking about policy here she eleven fifty three is not your honor and i think that the answer to that question is the distinction between eligibility and entitle and we discussed this at length in our reply brief citing cases both from the united states supreme court and this court as well a tenured professor as a matter of fact any professor or staff member pursuing to that policy is eligible for a salary in or maintenance if they are performing satisfactorily that is eligibility that is not entitle meant as the supreme court in the one nine hundred ninety nine case of american manufacturers who incidentally dealing with a pennsylvania worker's compensation statute said that the property interest only ripens when there is an entire i don't want under state law  your argument seems to be that there is a property interest in the base salary in the evening it is in the in the colloquial sense of the word or your honor that's where i was going to start and i'm going to return i will the judge reviews of you want me to say more about this policy i will come back to that but let me answer judge process question and this is the problem with the district court's rationale whether it's policy or tenure it couldn't be more clear in the us supreme court's precedents wroth and otherwise that again the federal courts do not create property interest instead you must find something that's explicit mutually agreeable and in title meant you do not receive an increase and then on the next day and it actually addresses what happens where there's one satisfactory performance and there in that happen it is not indicate that there is is going to be anything duction issue of whether or not it needs to be explicit and i think perhaps the best way to illustrate what is required in order for a public employee to have a property interest that court ask counsel to be prepared to address perfectly illustrate what those sources explicit sources look like not by negative implication in each of those four cases there is a state law or in one of them a policy that expressly said in one way or another there shall be no salary reduction without just cos so there was the protected interests not just in whether you're good moated or not demoted there was something xpress the property right was created by the state and due process was required will answer your second question about negative implication first of all that's not what the precedence required by negative implication one way to put it is this again you have to have a state law an independen must be affirmatively conferred the rule of law does not say that and last a lot of policy or contract affirmatively authorizes the government to take something away then that thing cannot be taken away without pro what is missing in this case is what exists in the four cases in this court's letter as well as plaintiff's cases the answer where there was a suspension without pay and there was a property professor a right to tenure with no salary protection right because if if you could give somebody tenure and then send them a letter that says next year you're going to be paid a dollar the constructive destructive tensions i mean two things by the way that we don't argue about it tender faculty member couldn't i think if you look at the statement or question presented whether tenure alone confers this property right we agree that if there's an agreement a contract a state circumstances where a salary reduction meted out to a faculty member i'm out to a constructive dish charge and that indeed would be and we don't disagree with this and we can cite case law that says as much that that would amount to a death grip of a nation of the property right in continuous employment may i go back in incidents b this is question just to bring this full full court has dealt with a case like the condition versus in title in case planet is eligible he's eligible there's a condition to being eligible for maintenance that performance until the performance is dean satisfactory the right to the increase doesn't write in again american manufacturers says it better than i could ever say it in in a few minutes that i have  they don't the court does not hold in american manufactures that you have a right to a hearing as to whether the condition president to the attachment of the property right honor i don't i don't disagree in one sense but i do disagree in another sense in the goldberg case that the plaintiffs already were receiving welfare benefits and then they were going to be terminated american manufactures again distinguishes between those circumstances where there's conditions precedent the conditions presidents have been that someone wants to terminate benefits after they have been the word i keep emphasizing this isn't the case lot it really helped it stick in my brain attached there were attached rights in goldberg in the sense that there were not attached property right with without if i may have one minute about america manufactures and will occur to say whether because the second issue and this really helped me think about it it issue in that case were medical benefits associated with workers compensation and there were two criteria for eligibility to have medical payments paid under the works compensation law one was a work related injury and to one of the medical expenses believe the words were reasonable and necessary and in this case the plaintiff had not cleared the hurdle yet of demonstrating that they were reasonable and necessary the court said because th pennsylvania worker's compensation law said you don't have a right to these benefits until you clear those two hurdles there is with the courts words you do not have a protected property interest that entitles you to due process the court didn't say for instance you we need to have a hearing to determine whether the medical c salary decisions were saying that procedures should be developed among each school so that the salary can be salary decisions can be reviewed and can be reviewed and possibly overturned i think just call bargainers know how to bargain and there's no there's no just cause here there's nothing you are asking is to infer that there's a right here  don't see procedure should be developed as no salary cuts have just cause a mutually explicit here's into the flyers so is there anything else the more explicit well i mean i certainly think  thirty or forty years of university a this is a very uncommon unusual event that is not within the scope of the general understanding of what happened between between the professors and the univers predecessor she had no idea how that figure was reached and i think that just the basis and how unusual situations this is within the university put this ability outside of normal understanding especially given the that might be a constructivist at some point in my view a contract with the stars but we're still talking about a permanent level here that rises above almost any other case that we've lost that we're due process rights of the triggered by five days taking these classes you know so he can try to change things the intervening years but he's been warned about the kinds of things these changes there's no allegation i believe that he suddenly started publishing of the storm is teaching would say that in this situation the professors at the university under this policy have a right to have their salary maintenance do the guaranteed that those benefits and band plays absent to process are guaranteed those benefits with staying in place if they at cheap a certain level of performance then we might be talking about that but in a situation where we have a policy that basically guarantees one thing which is the maintenance of your salary i think i think we can make a decision here if you have a drive to make a decision here that that's more narrow and doesn't grab the core into  language that we see in other cases in other policies where there's the independent source the affixing attachment of the right by saying without due cause without just cause and i think that's that's important that's the language that she was you know when i went back after this court pointed out the four cases and i went back and not only read those cases that we read all of our cases and it was remarkable i was circling with a pen as i went through every case where a property have the type of statute that some states do to protect the salary of tenured employees and so pennsylvania public institutions you know there are this is a big there could be a collective bargaining agreement and there are it's a contractual right and i'm focused  don't want to start because i don't think that there was a right to notice an opportunity to be heard here because there isn't a property interest but let's just assume for a moment that there is plenty of this and i think it's an average ability that hearing i don't mean to be so colloquial informal about that if you look at those supreme court and and this or its case law you know it doesn't need to be a full evidentiary hearing the two hour meeting where reasons were outlined a chance to respond is a matter of fact the district court judge here found that the content of the notice was sufficient terms of the explanation given well your honor i disagree with when it took place because it's it's deprivation not the decision on jeopardy and i'm going to answer this quickly and refer the court to my brief that we look at loudermilk mcdaniels copeland edmonson talking about what suffices for pre death revision process it can happen in a meeting the decision can already be made in advance of the meeting just so it's prior to the deprivation  you don't need to even tell somebody what the meeting is going to be about you can tell them at the meeting so in terms of what happened there it under any even in circumstances where people have been terminated or suspended was it just came too late and that is wrong for all of the reasons stated in our brief and finally i will just want to make the last point which is very important and arguably dispositive under this court precedents the alvin case is the leading case on this and that is when a plaintiff is complaining that he or she has not received sufficient process and there is additional process provided and available and the plaintiff has not a veil him or herself of that process they cannot complain about the failure to receive constitutionally adequate process here the record