all right the next case is brave versus the west indian company limited numbers thirteen four three seven one fourteen one one five one this matter i am in receipt of the court's letter dated november twenty fourth i'm going to try to proceed down that track hopefully if i get off track your honour's for world keep me back on track i think the court wants to hear three distinct items first of all whether or not the district court had subject matter jurisdiction to hear the issue whether or not the complaints actually stated a claim under federal law and third given the district court's tautological reasoning whether or not this court can engage in granting a twelve p six motion at this stage that's what i think you're asking but we'll see where we get with this i think with regard to whether or not the district court has subject marriage or stiction it did not like subject managers to action i think the district court ignored precedents which said if i understood the brief correctly that the board is out of this under twelve b four and five and they haven't they meaning you're quite haven't done anything to push back on that  it's a reason why we shouldn't accept that that is fact the case that the board is was dismissed on a basis that wasn't appealed and that the board is out i i would agree with that your honor ok so with regard to jackson they ignored the the courts the plain meaning of the act and also the court's ruling in jackson vs waco but isn't that really i'm sorry isn't this really not subject matter jurisdiction issues but issues about analyze the case under those grounds so that's again you started saying that the subject matter jurisdiction verses tell you to state a claim which our question was really about the difference in the procedural devices i think was our first  state actor and there where they said that at all i think that i think the district court totally missed the point the question the question is whether or not there's a state actor and i'm saying that there is right but is that an issue under twelve b one or twelve b six yes i think under the johnswort decision what that does and that's the last part of your letter your honour's is whether or not that's prejudice is me as the plaintiffs in this case and my point is clearly would be prejudice because in one instance you're talking about pleading enough facts to get past the jurisdiction or have having subject minute jurisdiction and spearing the burden of persuasion on that twelve b six you're getting at a whole different level where we have the benefit of the facts being heard in our favor or pled you know in the light most favorable to the plaintiff the district court mixes it all together to the point where she never really gets to the point of considering the facts which i think are very clearly stated as federal claims once you get over whether or not white go is a public company of which it is i think that if you look at the totality of it it is a public company and i don't know why there was so much other side as well how do you get around section eight b that says it granted a status in the story of a public company governments from a talent well what about let's let's talk about that there are two cases that tell us that we have to look beyond labels but he's called lashed out which is the case involving someone who's a foster parent and there they said well they might have been deemed public officials and some are public employees that wasn't sufficient and a case called west which deals with  individual has a contract to provide health services to the department of corrections and those cases teach us we have to look beyond labels and sorry this is so long winded but you do cite in your complaint the government instrumentality language from from the act you just quoted but isn't that a lead conclusion that we can't presume to be correct or are you saying that's a factual conclusion that the district court should accept it's a factual conclusion based on the clear language of the act in section eight b also the governor appoints the board the money for the from michael goes to the government the facts operative facts in this case have to do with my client gershman sproul appearing before the legislature the virgin islands or not appearing and mr bush oath of being very angry about that how many private corporations get someone in front of the legislature to talk about their budget because the other side points out look this particular corporation whatever it is you know it doesn't in the in the virgin islands i don't know about wherever you y'all from i just came back from the south so but in the end we have several companies here that are quasi governmental entities make it so they authority but they are considered under law to be state actors well let me let me ask you this you you've made or given it's and allegations against mr bush in his personal capacity wells in his official capacity but does that message even if we were to accept that white go is an instrument of you governor of the virgin islands is that necessarily follow that x taken in his personal capacity were taken under color of state law if he was clothed in the color state law by becoming the president with the authority unilaterally to terminate both my client service after seventeen years and thirty years and rubber stamp by the board what's the distinction then tween personal capacity official capacity well when he was acting in terminating him terminating my clients he was acting as a state actor or unless he was acting for his own personal gain which i think would be revealed through discovery i mean we are we never even got to discovery stage in this isn't is an existing third circuit law that we get a shot an amendment we didn't even get that far  one versus twelve b six if the statute is as plain as you say it is of section eight b of act fifty eight twenty six is clear on its face that this is this is matter the basis on which the dismissal was made or is your position that no matter what the judge said twelve the one hundred twelve b six i guess i'm wondering in part why your why the twelve b one versus twelve b six point is important to you if you're going to if you win either way on your ultimate argument that white go is a public entity i think that there's case law that says they're intellectually distinct  specifically didn't it mr hans that that there were it reaffirmed john's right in saying there is a shift in the burden of proof that would be problematic but it didn't think it was a problem specifically in that case because there had been any assertion or attempt to search for certain things that were being you know that would have made a difference there five remember the case correctly here they are your opponent vociferously we've said all along that these folks are state actors that the and we've we've never alleged anything that would take us out of the  realm of bell vs hood so it's wrong for the dis we are prejudice why are they wrong when they say for us based on what we've alleged we're we're certainly prejudiced by being put in a position of bearing the burden of proof when the if under one motion twelve the one the plaintiff has the burden of proof and under the other twelve the sixth you've got the burden of proof isn't inherently prejudicial to make the plaintiffs bear the burden of proof when you're supposed to be the burden of proof under twelve  we've had we've not couched our our our argument in twelve the six terms we've responded as we had to to arguments they made but we've all along taken the position that that that this is incorrect with the district court did are they wrong about that as a matter of the record absolutely ok the motions to dismiss relied not only on twelve b one but twelve b six specifically like those  less than in company limited its motions to dismiss specifically relied on twelve b one twenty four twenty five and twelve the six and the twelve the six portions incorporated by reference the argument from twelve the one specifically regarding these constitutional rights so that motion was based on twelve b six the opposition was also relying on twelve the six if we took that to its logical extreme arguments won't you always be in a position where you say no prejudice in other words i'm having a hard time understanding how a plaintiff can preserve the position that there is prejudice because the burden of proof has been shifted if they're in a position where they have to respond to the defense arguments for be seen as waving a response i might not be making myself clear you're looking at a possible tells me i'm not doing a very good job of putting this to you as one in which the defendant has filed a motion to dismiss based on twelve the one in twelve b six explicitly and then in your opposition you want to say that the plaintiffs i'll only talk about twelve to both rules it doesn't much matter we moved under both rules and they responded under both rules and also the district court sort of credited the allegations is truthful behave like it was a twelve b six motion so the plaintiff wasn't put  disadvantage and i craft right exactly and most importantly the the factual issue you know in terms of burden of proof as as your honor seem to know is a single sentence from both complaints paragraph six the court has to look to the act itself to decide whether or not that's accurate well not the act itself we have to look beyond the act as a right we have to look for facts so speaking of facts how do you reconcile i have two questions so one is speaking of facts if you look at the allegations in this complaint putting aside what you've now called a legal conclusion what you know quote in the act there is a representation that one hundred percent of the shares are owned by the conduct any business as a corporation can conduct well that well how does that make how does it turn into a private corporation i noted in on page five of your answering brief you say that the fact that they are permitted to do that is something that makes them into your view a private corporation but i'm have a hard time following that why does the fact that they're able to do all things lawful under the corporation law change the facts that they are owned wholly owned by the government of the virgin islands and that they are evidently directed by a board of directors that's appointed by the the government in some fashion and that they report to the legislature how does that fact that they can do things lawful under the general corporation law change the ownership and the management and direction given to them it doesn't change those things however the fact of matter is that like a wasn't created by the legislature like it was a preexisting corporation sure that what but that but they took the step he took the affirmative act of enacting a law mean section eight b of it is awfully dang clear it says and you know we've all read it it's granted the status and authority of a public corporation a government instrumentality of the government the virgin islands of the united states and deemed to be a public entity operating on behalf of the government rather than a private corporation that's a quote from the legislature or the virgin islands and if that is how could they be any clearer about this is a public corporation not the private it's never coming off but the act itself that's not the only thing that appears in the section for the act specifically gives the right to conduct business that's just why i asked you how does that undermine how does that undermine section eight articulate how that changes the meaning of section eight because it creates it as it establishes a hybrid entity that is not purely public and how does it make it a hybrid i mean the fact that it's the corporation wasn't changed from when it was a private corporation before it was before it's that was purchased by the government so the character has corporation so your position is even though the government bought it and even though the legislature made a statement that we now own it and we are converting this into an instrument tally of the government that those things that that language and those actions are meaningless because it started as a private corporation and it kept doing the same things at those those acts of the legislature are effectively a nobody because they're still doing what they did before the government bought them and said there are some our instrument polity if i understood your argu acquire was to settle litigation between the government and waco regarding development rights held by waco that were granted by denmark the purchase of waco that was the that was the purpose the government purpose behind purchasing waco it wasn't management haven state it wasn't management of contract with visiting cruise ships it was the control of the development rights and the and the act in terms of what it granted in terms of public entity status was tax exemption you know what your opponent says in response to that is the defense argument here actually undermines that purpose the purpose was to make this a public corporation and settle that question once and for all and that history of dutch colonialism was being put to rest by putting the power and the ownership of this entity in the hands of the government and that big defense wants to undo that which is fundamentally at odds with the intent of the legislature so what's wrong with that reasoning what i'm saying is the intent of the legislature was to grab control of the development right negotiated to purchase the redevelopment rights or they could have condemned the redevelopment rights i suppose under some fashion and paid for those but they didn't they bought the corporation outright and they cleared it through an act of will legislature to be an instrument the government so i'm having a hard time with your assertion that they only picked up one end of the stick they decided to pick the whole stick up didn't they the whole bundle rights act also made law the stock purchase agreement and the stock purchase agreement stated that like those employees were subject to the plant closing act which is limited to private and employers and that it was subject to the wrongful discharge act limited to private employer as well it's when i think that it's a hybrid entity there may be some purposes  for instance the development of that of the rights granted by denmark that could be seen as a public entity issue but in terms of you know this is a you know it's an interesting question council should be should this the district court to have them look through all this stuff all the i mean it's it's something interesting here we've got waco we've got action section eight b which is pretty pretty clear but there's a lot of there's a lot of other arguments i suppose you know they're yet another government instrumentality the vi legislature and twenty four vs the section three sixty two subsection defining a public employer which says that the executive branch of the reconcile the position that white go took in the jackson case in jackson the district court held that they were a government entity for anti trust immunity purposes and then later in the opinion it doesn't say state actor but says its due process claim they plaintiffs to prosecute fails for other reasons how do you reconcile why cause position where you wanted to get the benefit of governmental munity fred i trust purposes tech in this case you're looking to say we're not a state act in that case the supreme court found that the second circuit erred in considering the extraterritorial reach under section ten b of the securities exchange act to raise a question of subject matter jurisdiction if found that the reach of the problem that the plaintiff here says it has of being required to respond to twelve b six motions and still preserve its argument that it's prejudiced by shifting the burden of proof of the sort that care packaging and johns for a describes in this particular case because the the appellate actually responded to the motion based on twelve b six grounds they would always have to do that right that's the question i'm trying to get should respond how could they preserve how could a plaintiff ever preserve its prejudice argument because it's always going to have to respond to the colby six argument to right they will have to respond to the t if the court can be directed by the morrison supreme court decision where they found that the analysis it's as opposed to the labels that were as cried to the analysis the actual analysis that the district court employed in this particular case was too good to delve into whether or not the defendants were state actors which ultimately made a determination based on whether twelve the six grounds as opposed to whether the court had such a twelve b one conclusion was the same analysis that would guide this court in determining whether twelve b six would apply so you're saying that because the district court behaved in a way and used words like you use in a tub the six opinion the  more facts something like that is that how the prejudice would be addressed yes around in my opinion that if only it was on the appellant's to to make affirmative statements to the court to in order to preserve their twelve b one argument to the extent that the burden of sprout sproul ok thanks sproul failed to plausibly alleged there was any nexus between the territorial government and any supposedly unconstitutional acts allegedly committed by allegations that are in the complaint would suffice if you assume that white always a public entity isn't the statements that he was hauled in  treated differently we were singled out we were beat up on thrown out of our jobs cetera without good reason how is that not close enough nexus on the basis of pleading to a stamp of state action anytime somebody a state actor in both official and personal capacity that by definition the personal capacity allegations have to be different and closer th capacity and the state and there's no no there are no allegations in the complaint for instance with respect to mr sprowl's first amendment allegations he does not indicate that there's any explicit direction or strong encouragement by white or the white call board as it relates to the alleged retaliate retaliatory terminations there's no action in the complaint it's completely devoid of any factual allegations as a release to the role that white call or what or the white board played in the implementation of the terminations decision and the fact that he's soothing his personal in his official capacity am i correct the truth trying to say something more needed to be said it wasn't enough absolutely to say he was the c e o he treated us wrongly he had personal motivation was working along with or in concert with the government to implement determination decision you don't say any media should ask you you have any case law that supports this idea that there's going to be something more in addition to the allegations directed against him in his official capacity it would seem to me you're out of just based on what is required to establish state action that there must be a close connection between of course the nexus between what he does in his individual capacity and the state act the  that that in and of itself establishes that something more needs to be done because in order to establish the state action there has to be affirmative action taken by the government so if he's standing in the shoes of a professor of a personal capacity then there has to be more than he has to be acting in concert with someone else some governmental entity you don't have a case but the larger requires correct with respect to the allegations that do exist in this complaint because you can focus on he has to have some kind of connection with the state actor and in this case the allegation is it's waica one hundred percent owned by the a which the statute seem to suggest is an instant tell yourself your adversary made the point that these individuals were supposed to participate in testimony before the legislature as it were relates to the budget the allegations also talk about something  port agent can you tell me what that is not with any difficulty i would have addition my understanding of what the port is it is is they serve as like a coordinator with with the cruise ships that come in and they are the port that's what i call as to who the cruise ships report so it's like a reservation service to poll in the docket they're not providing security like the port authority would  with respect to white calls that this is that disposition of michael's status as a governmental entity is not required to determine whether or not mr bush has individual capacity is is a state after it's our position even if it was determined to be a governmental entity the complaint the complaints as they stand are insufficient to pass muster to to require remount or any other on the merits we're out of the park if we lose on twelve b six and we never even got there because our burden was something else but what allegations would you add to this complaint that would be entitled to the presumption of truthfulness if you've got to amend i don't think we need to add anything and in fact i think you need to look at the heart of the claims in this matter for both the move to memo martin t probably did we always do because judge gomez always a lot went as a different judge but he always allowed amendment but you have to look at the heart of the claims in this matter and the matters in this case are matters of public concern and i was around when this happened when this transfer happened and governor fairly at the time called it the last transfer the last transfer of the vestiges of colonialism transferring these doctors very lucrative doc to the people of the virgin islands where public functions as any of us perform the what makes it uniquely public function that the state would normally supervise the state owns it and the state and it's run by the state and the money goes to the government employees retirement fund and the public finance and it is now owned by the people that was the whole point of the last transfer so the question is are the complaints that mr sprowl and mrs smith made matters of public concern and i submit to your honor's that it what we're talking about money lambasted by the legislature and embarrassed he fired for not appearing or suspended them those are matters of money the put up putting out a cycle that goes to whether or not you state a first amendment claim right that's got to do with matters publisher i'm focused on the state actor component which is what you need to get out of the one hundred eighty three box you just said that you got any talent in that you would add to this complaint to provide additional facts to show that they are that that white though is a state actor so you are asking us to credit not just as a legal proposition but as a matter of fact that the section eight of the act needs is enough is dispositive that's what you'd like us to hold as a matter of law am i correct yes ok thank you now the question is whether or not we stated federal claims against the state actors i submit that we have against like and bushel to and you have to look to as to the underlying facts the story underneath what's been pled and you know before we move on because i  out now we never got to that fact because we didn't get out we didn't get anywhere in discovery she just threw the case out but as i said they were in the law i mean could we see that you know that there's a veto power or something i mean what's the relationship between the government of vi and why go it seems to be rather independent it runs it's got a board of trustees or it's just like you be i i know i can i have to keep circling back to that case it's just like you yeah it's a quasi independent governmental entity that's for purposes of the jackson case was considered a governmental act or you can't have it's judge schwartz nailed it right on the head she said you can't have it both ways you can't claim you're a governmental actor from unity and then claim later on that you aren't are the  that's where this was cited in the brady case comes in you have to isolate the definition of government employee to that particular section i don't have a sort of where do we draw the line it's got different attributes than purely perhaps a purely public corporation maybe where we draw the line this is a this is public and with these out of utah it's considered ok well let's ask it this way if it's not public what is it it's owned by the government it's run by the government it has government employees the money goes to the government it's supervised by the government it's supervised by the legislature how many private corporations run that way it's a governmental entity you say they're government employees but the at least the public employees relations board isn't giving him that protection and that act i think your adversary pointed out it up itself says where the remedies have to come from the wrongful discharge act and there was a second one that's escapes me right now which sort of suggests that the legislature was thinking of those employees as being private not public so they didn't want better we didn't have to deal with that which i litigate under all the time but you have that is a cause of action in this case good cause pardon me territorial claims to put in the district court do this type of analysis that you know that looking at all the different attributes and applying appropriate law determine it's i wish they would have certified the question to the virgin islands supreme court which is what i would do because it's a very very very important issue of territorial law and unfortunately it was totally conflate rated in this opinion that doesn't really talk about they just i mean  absolutely no first is no has no authority over the district court of the virgin islands a federal court it makes no sense whatsoever