made he's the court honorable mr lafond good morning ladies and gentlemen i'm here representing dr alexander eighty on way who was a professor at the university of texas pan american in the rogue randy valley and we're here on an appeal of a dismissal on the pleadings under rule twelve twelve c and also a denial of the motion for leave to him in the pleadings before and after judgment the court also denied the motion to alter or i'm in the judgment after she and in her judgment we contend that the dismissal on the pleadings was error for a number of reasons appellant was a tenured professor at university of texas at p american he had been employed there over twenty years he had been tenured over fourteen years at the time of the merger one of the fundamental issues in this case is that apple is continue to discuss this matter as if universe texas pan american like some other universities went broke and went out of existence this is not the case we've cited to references on the legislative history from senator  that were the legislative history pertaining to senate bill twenty four and at all times they referred to mergers two institutions a merger of the university of texas pan american and merger of university of texas brownsville why that detail is important is because of apple lease briefing where we put we contend that he confuses abandonment of a program because he contends that dr edi own way abandoned his position and the case law that we've cited in our brief talks about abandonment of a program due to financial exigencies or abandonment of a program by the university at no time to dr edi on way abandon his position nor is that what the case law talks about so that the form the university was terminated a lot of the email addresses still exist but the term but the university itself has been terminated as was university of texas brownsville by merger and what is missing from the apple lease briefing is that he is the issue that was came out of a two day meeting of the board of regents in may of two thousand and fourteen and it appears in the record beginning at one fifty five i'm sorry one fifty six monica and it's one thirty six and in the hiring of tenured and tenure track faculty members notice it stated that individuals who held a trauma not degree and were full time tenured faculty members would be removed in two tenured positions or tenure track positions in the new university if i disagree your honor because that is not contained within the may fourteen may fifteen bulletin you're talking about the july eighteenth frequently asked questions bulletin which was issued when our client was in nigeria and i think that the court is confused by the applebee's briefing which voluntarily chooses to ignore the hiring of tender to the tenure track bulletin which was issued in may of twenty fourteen after a two day meeting of the board of regents and it contains a guarantee of employment for all tenured and tenure track employees in the new  university what about what a the statement put the a in the legislation instructing the board of regents to quote facilitate the employment at the new university of as many faculty and staff as is prudent and practical we contend that also creates a property interest in docket an impractical written and practical guess because they followed that what happened was that the board of regents said you're going to do whatever prudent practical they left it i mean the legislature did the they left it to the board of regents to pass the enabling legislation and under the case law in texas the board of regents rules are the equivalent of case law and so what the board of regents did in their in their hiring policies they said if you aren't in your track and you are tenured as soon as the president makes a recommendation on hiring all of you will go into the new university as t also that's pointed out by the fact that they considered all of the prior years for calculating the number of the reserves or let me just ask you practical question because mystery on way goes off to nigeria and he he must be aware that the consolidated university was about was planning to have similar as operation such that all the students would start their classes in the fall he doesn't show up until october right that's incorrect well it said he didn't come back till october believe that's a misstatement what he it says that he applied in october he contacted them in october he he was gone for four week period but the issue is that they said that if you are qualified as a tenured employee or a tenure track employee you will be invited to apply he never received an imitation he never received it wait until october after you know which at top at which time the new session is has probably been going for nearly six weeks well he contacted the university on and on october the fourth with but this is an interesting issue because there are no facts that have been developed about when it was that he contacted the university and so that our petition has to be taken as true but this is why dismissal on the pleadings is an incorrect remedy because under the law in the eastern district of texas in the third circuit in the seventh circuit the the question of protected property interest is a fact question it is not a question of law and we've been deprived of our opportunity to show facts such as that judge jones and also on october seventh he was told that he could go ahead and have and apply in phase two but on october seventh when he contact them phase one was not complete things when hiring was still under under but it is a timely applied during phase one you say he wasn't notified he said he wasn't invited we represent southern people who have followed suit against them against the university but not on notice issues weren't they were they specially notified other comply he also was not even granted a hearing on whether or not his term a nation his mom not on hiring his thing you're to continue an employment complied with the rules he didn't even get appearing and so in july other faculty members and the university that he did not receive but the issue is that in july of twenty fourteen without a happen after they file their papers timely i could be considered question today i can't i can't go through the facts of the other sixty six cases today as i stand i'm asking about your client is who different than the other people because you're indicating he wasn't notified well not only wasn't invited it was in human specially notified are invited i believe there were communications to individual faculty members that he did not receive my position is that he isn't titled under the u s constitution to individual notice because his protected property interest is being deprived because of the fact that he was denied employment suspect the court has not reviewed the may fourteen maybe fifteen guidelines provide that ten you're going to and your track faculty members will have a position in the new institution and rule thirty one zero zero eight of the texas regent rule says that you count those years but not from an outside jurisdiction and not from an outside institution if they thought that you t p a was an outside institution meaning separate from you to your g v then they would not have counted those years on tenure which they did then also tenure requires that you only be fired for cause or financial is that exigency and the apple lisa claim that this it was a discretionary benefit it was not under the may fourteen may fifteen policies and also under the senate bill twenty four all we have to show is that he had a reasonable expectation of continued employment which he had by his length of service the fact that the legislature said to hire everyone that was practical and prudent the fact that the hi calling policy which was the one one thousand one twenty minutes of the board said that tenure and tenure track members would be appointed that it has under james versus wall in texas that the regents rules have the force of law and if it's and creates a state created right so under james versus wall the main fourteen maybe fifteen regents minutes created a right that is the equivalent of state law also the public statements about it being a merger even the frequently act frequently asked questions talked about the hiring criteria that he complied with he had not been disqualified for disciplinary reasons we know all that i mean we take as a given that the fellow was in perfectly good standing of an american but isn't there something here in the state sites and maybe it's a leading whether it's in the senate bill not plain made clear that quote faculty point months and tenure at you to be and quote will terminate close quote when i quote you to be a new t p a respectively our close quote i don't disagree with that that was the idea for trying for payroll and for issuing new checks as to what time it says tenure will be terminated because they were guaranteed degree and holds a full time tenured faculty appointment as a professor associate professor or assistant professor on the date of the recommendation it doesn't say subject to a time timely filing it doesn't say subject to anything else it says that the president will recognize all the tenure and why is it then that dr bailey made such a statement about all ninety seven percent of our faculty went with us ninety seven percent of the faculty and staff went with us why would that not create an expectation that w percent of the faculty and staff but what i'm talking about is the board of regents which has the effect of state law that slips but the tenured and tenure track faculty will be taken and it says the at the feet frequently asked question says eligible faculty members who meet criteria meaning you haven't been disciplined will automatically receive a tenured position if you're eligible you will automatically receive a tenured position and so the only bulletin that had been published when dr video my went to nigeria was the one that said you're going to be invited because you have a tenured position and the hannigan case in the yates case say that whether you have a property right and the continued employment should not be decided on the pleading date specific that he talked to them but they told him you need to wait to phase two i'm not certain that the pleading contain the date that he originally talked to anybody that telephone conversation and i believe so and what that's what we were hoping to follow an amended pleading in the court would not allow us to file an amended pleading remember that this case was filed in state court court which is that they are notice standard and we ask for permission to file a new pleading and she denied it and then we asked after she had her judgment to  been pleading and we attached the pleading that we would have filed to the to the motion and she denied it again so on the issue of protected property interests there's a multitude of layers that are not unilateral of that the test is is it a unilateral expectation or has the entity given you no right but again i mean even if you have some expectation based on this phase one they did not apply timeline that was not contained within the requirements of senate bill twenty four or the may fourteen majors but it was in the gut yes but you're not relying on bill twenty four you're relying on some board of regents thing that you and some other communication by runner i don't believe that that it was arbitrary that the legislature went through the process of considering how to create the university of texas rio grande valley and it and it decided after debate to give give discretion to the board of regents with regard to hire him and with regard to that hiring i'd like to if i may first beg and on page nine of her reply brief she responds to our our citation of the hiring criteria by saying just because the hiring criteria say it doesn't make it so she she concedes in fact that it's not off but even if it were a lo helli and in whiting this court said that if there is discretion at the end of the line up then there's no guarantee and here there is discretion at the end of the line the only thing that this guarantees is that  default right i'm sorry that is the only the fault of professor eon my boots on the record shirt and that's that's correct your honor and as the f a q says the f a q says these are a lot of qualifications what if i meet all but one and it says component institution was abolished all of its academic programs and positions were were abandoned and so when we talk to any army says that he has has a position at u t g r v he no more has a position there that he doesn't u t austin the tenure attached only to your t p a and when you g p a cease to exist so did his his tenure he received everything that was due him for his property right in so if you're ever speaking about that his his his position was not felt i don't know if you qualify that as as terminated or not but at the position that he that he applied for was not felt  honor but this specific position the doctor you do have applied for is not told i'm not sure if there's somebody else they're teaching that i hired it's accurate to say they hired back ninety seven percent of the faculty from that come from the two institutions that there are there are some other qualifications that speak to budgetary matters and things like that that which also just go to show that there was no guarantee but also i can't i can't ultimately say that if to have an entitlement that entitles you to due process there must be a corresponding legal obligation imposed on the state and what the supreme court and this court has told us one looks for in a legal obligation imposed on someone is guaranteed a benefit now in rigidly this court pointed to the so security disability statute which said if a person is under a disability that person shall be entitled to disability benefits and now if you look to se you can see that five c is focused on the entity regulated contains no no guarantee for an individual and as this court knows when when the legislature uses different language in different parts of a statute you presume different meanings and the the affirmative defenses because even if somehow you could find a property right here each of the defendants the doctor the way has sued is immune from liability under under sovereign immunity sued organs of the state he has sued the state this is the classic sovereign immunity scenario and as this court held in miers just j letter about the weather big case yes your honor has the has the state filed a motion for rehearing to the panel in the weatherby case i don't know whether or not the state d let me just suggest that since the state is the interest of party here to have even an unpublished opinion saying that ex parte young extends to a state agency is just going to confuse people because not everybody is cites clearly establishes rights here speak only at a at a thirty thousand foot level of what it takes to create a property interest in employment none none applies to anything like the particular context here which is what the supreme court has told us you thank you it's funny but i'd like to touch upon three things that i think are very important and has not been discussed it's page one forty seven of your record which is page two of the hiring of the tenured tenure track faculty members document and it states that paragraph g u t u r g d has budgeted a sufficient number of faculty positions in that academic unit to grant tenured appointments to all individuals in the corresponding you to be a new g p a academic units who qualify under section four point one it says all faculty members who qualify he was a tenured faculty member filing an application is not a matter of qualification he had the qualifications he was not disqualified by virtue of the fact of any disciplinary action or being the target of any allegations at the time so it would refer you just have paragraph g but also in the frequently asked questions to document which is that page one fifty two it states eligible faculty members who meet the criteria in this phase will automatically automatically receive a tenured or interest in the unsettling hiring criteria for the merged universities one would think so and i was and did he somehow not have access to the internet or in this four week critical fo week period i think that may be the case your honor i don't know for certain but nigeria does not have the same ability to communicate that the united states does i don't know that specifically but again that's an issue of fact which under the yates case we are entitled to call lead under rule eighty and we are entitled to develop the because it says in two different places all individuals get appointments and it's automatic you automatically receive so i'm certain the dr  concerned about whether or not he was going to get a tenured appointment because it was actually came out i mean the state says that the frequently asked questions didn't come out until after you'd already left the country that is correct the king so he couldn't have relied on that he did not and that they're trying to use the frequently asked questions against him because that had all those things one hiring requirement thought you were just citing the facts to us is in support of his position the july eighteen bulletin now comply with whatever time limits are required it does not impose the time limits it does not give you the roadmap but here's the most interesting thing is that under mennonite ward admissions versus adams you have to give actual notice and that's a minimum constitutional protection i consulted with my partner here none of the other plaintiffs have noticed issues every single one of them received noticed and applied timely so this is the only individual who did not receive notice that we represent who did not apply timely and because he was qualified and it was automatic and it was guaranteed he should have at least had an opportunity because he contacted them the october seventh meeting i clarified was in person he when and in person and said what can i do to fix the situation i understand this has been going on and they said oh just don't worry about it you can apply in phase two but phase one hiring was not closed hard line yes he did and he didn't get hired he did not get hired and that's when the dean dean leapt or said to him you shouldn't even have to be here because you're a tenured faculty member you should not even be relied on let individual say when they don't  understand that but that is suggestive of what he had a right to believe because it's a reasonable expectation of constant continue to plummet if the dean who was involved in the hiring process believed he didn't have to apply how much less could you charge d on way who's in nigeria with knowledge of what the requirements were when mennonites says you have to give him actual notice and that the publication are in our position the publication of a document is not sufficient because the bulletin said you're going to keeping you advised the moment by moment of what is going to happen next we have no knowledge that he received any information about that but the other issue that mr laffan mentioned is abolishment of the position they did not abolish the diet department because there's you two southwestern cases there were cases that went up pertaining to the abolishment of a department this is not one of those they kept the dietetics department his position continued to exist they decided not to fill