process with respect to the no underlying facts are pretty straightforward the line change issue was part of the capital improvement plan the plan was presented to the board at least for informational purposes it was part of a project up again in two thousand and eight it was completed in november two thousand know that but if you're right on menow we need to address a question that you didn't mention in terms of the questions you want to address and that is this this is the sort of property now would be properly subject to a fourth amendment challenge but that's correct and also if i may add a question to your question your honor also whether it's the type of property that gives rise to a due process claim  amendment those are related to different questions i think that's right and it's certainly true that with respect that monella only gets you part way there you have to establish a substantive constitutional violation once you show and you the liability and i be happy to talk about that well that's the question that concerns me because i'm willing to go with you as far as on the i'm on now i'm not sure about my colleagues ok let me let me then talk about what property is and  if i may let me start by talking about property for the purposes of the fifth amendment claim well you know the fourth amendment is the one that concerns me ok well let me talk about the fourth amendment that question it is clear from the case decision in jefferson that a contractual right may be a property interest for purposes of the fourth amendment to the court really could not have been clear about that but that would that was physical property and that was a pass that was being sent it was indeed but the point at issue the court made clear in that case that if the seizure had happened before the deadline for delivery there would have been no fourth amendment property involved so as a result the logical extension is that the only thing that gave rise to the fourth amendment property claim so your claim in that case was the fact that the contractual right had been interfered with because prior to think it's fair to say a president in title meant that satisfies the present entitlement to what power power the power under the contract the power quote required to service the plan they could work for the power from elmwood to us for or to us from elmwood i'm talking about the power that delivered to us yeah i mean if you owned the power is that what the property interests that you owned the power we  actually i we had a right to we had a contractual right to power yes contractual is key i mean why isn't this a contract case in fact what is the current status of this case there there is a state court action that's pending in now in lassen county i think that's right and there was several state law claims that were filed a demur was filed as to some of those claims interestingly enough not including the breach of contract claim think and i'll be candid about this i think our we have a stronger property claim with respect to the fifth amendment than we do with respect to the fourth amendment and that is because the standards for what's a property interest under the fourth amendment are pretty undeveloped but with respect to the fifth amendment again although the case law is sparse we know what the test is from the supreme court's decision in lieu hahn and this court's decision in of procedural due process to which a post terminations breach of contract remedy is not sufficient but if we're talking procedural due process the line or procedural due process cases is basically your entire list something up on the occurrence of certain events or the feeling of certain criteria and the procedural due process claim is you didn't determine whether in advance of the failure deliver in advance of the taking whether away a property right it has to give you notice that it's going to do that and it has to give you some sort of hearing it doesn't have to be you had no i mean let's assume you have a property right didn't you have a notice i mean they sent you a notice no no what we had was was notice that it would happen what we didn't have was notice that we had an opportunity to go appear in front of the board or to go talk to the general manager and say well you know what once you got the notice that was going to happen what did you do what did your client do while i think there's some dispute in the record of how what exactly was communicated to the client and what the client did to it and of course those facts have to be construed in our favor for purposes of summ judgment what i believe the record shows is that there was conversation between mr and his client and my client about when the line change would occur but there was no conversation about whether it should what is what is what what constitutional adequate notice is not noticed that says you know we're going to do something and when do you want to occur mr mr criminal when do you want to start serving your sentence before the trial happens constitutionally adequate notice is as the supreme court said in memphis versus kraft is notice that tells you what your rights are that you have the right to contest what the government's doing and the key point here as the supreme court said in cleveland board of education versus loudermilk the one critical difference between pretend provision and post deprivation process is that in litigation after the fact the court is limited to was there a breach of contract but if we' gotten pre death provision notice we could have addressed not only the issue of whether they had the legal right to do it but whether assuming they had the legal right to do it whether that right should be exercised to the court in law tamil said that with a big difference violation of procedural due process i have trouble seeing how we where there is a stopping place it looks as though every contractual dispute with the government then becomes a constitutional dispute over due process so let me give you one pretty clear way to separate the sheep from the goats in all the cases that address this issue lou hand san bernardino physician service to bore versus pennington the plane is a supplier of goods or services to the government so the government obligation is to pay money and in those cases the court justifiably held that the plaintiffs remedy was an after the fact breach of contract remedy for contract damages but here this case is the flip side this is a case where the government isn't in the position of pain money the government is providing a service after which we have a president elect what i don't get why as i understand that that they're different in that respect why is that a relevant difference because it explains why this case falls on the present entitlement side of the line as opposed to the mere contract remedy side of the i mean that's deal just flipped it because ordinarily due process is it's deprivation of property and that is to say suggesting that already belongs to your client whereas instead what's happening his they're failing to deliver something what they're failing to deliver something that we have a contractual right to have and the court in border regions versus wroth and this court in in san bernardino physicians service have said that th line is crystal clear and it part that is because there are not a whole lot of cases addressing this precise issue and the courts have not articulated a standard but what i think i can do is  given that the is is to tell you that given where the cases are that here's a line that makes sense and when you talk about a president entitle me in particular i would say a present entitlement that interfered with our ability to operate the plant that we're in new or those are the kind of cases that the supreme court has held justify holding that post terminations breach of contract remedy inadequate and for example in  constitutional purposes the fundamental point is that our right to use our property to generate revenue was interfered with because the state came along and deprived us of something that we page fifty seven and it's a c p w c p n that's l much predecessor will provide electric service for all energy and capacity required to service the premises and that was a contract between mr client's predecessor and my client  elmwood and us was so that we could provide power that we didn't provide to p g and e that's correct but it was still a bilateral contract between elmwood and amity so let me say mike my one second for rebuttal i hope the court will give me a little level of a conscience constitutional property interest that is a very simple easy dispositive non factual way in which this court can resolve this problem the question is dispositive and the district court got it right regardless of what amendment you are looking at under the fourth amendment the relies on the drug package cases  say that a property right rises to the level of a constitutional right in those cases however the contract was not with the public entity as it is in our case and the remedy that was being sought it was the overturning of a criminal conviction not loss of the property and so those cases jefferson and france are completely not on point there's oppression cases  next a t v i argue is that there a seizure occurred because there was some sort of administrative or investigative purpose and the cases on this addison where a blood drop by a doctor at a county hospital was given to the police and arpan where a citizen's arrest was made both of those cases approximate criminal there is no property interest under the fourth amendment and there is no property and there is no investigative or administrative purpose that is claimed he also asserts rights under the fifth and the fourteenth amendment setting aside the fact that the procedural due process claim was not made really in the court below or argued in the court below the district court nonetheless got it right on the fifth amendment san bernadino physician services lou hand to bore all of those cases stand for the proposition that where there is a state court remedy  that remedy applies there's no need to make a federal case out of it in san bernardino physician services individual interests were being served and that also distinguishes that case from our case here and it's also why the memphis gas and light case is distinguishable in that case residential homeowners brought a claim that they were not provided with notice and an opportunity to be heard before their power was shut off for failure to make payment of the bill and the court in that case held that there was a legitimate claim of entitlement and to ascertain whether there was a legitimate claim of entitlement the court look to state law because state law provided that where there was a dispute regarding the payment then you couldn't just turn off service so again there was something above and beyond the to get these three phases of deliberate thirty four point five they were whatever thirty four point five voltage right delivery and now they can only get twelve this is cause so in a sense i can see why he's making this claim and my it's got all the way up to the ninth circuit it's because in some sense that element is taken over half of its delivery power here on of that the issue is that is remediable in state court it is remediable and a contract action it is remediable in a inverse condemnation action and in fact both of those are currently pending in lassen county superior court so it just simply doesn't rise to the level of a constitutional interests property interest i'm curious to fight them an e l m u d was responsible for cutting and lowering the powerful to well it's not clear from the record that the record evidence is not there lawrence testimony is that it was work to go it was projects they were considering it would have been in a five year plan but there's no evidence of a five year plan there is no evidence that the board ac information was presented to the board but there's there's no evidence that the board acted so we're supposed to conclude it was some rogue actor with an elmo who decided to do that and i don't know that it was a rogue a at least there should be evidence that somebody made a decision somewhere and from that decision you think that what you're saying then is nobody made a decision and this just happened either accidentally or haphazardly i'm not saying it's accidental or somebody made a decision but did that decision rise to the level of policy under nine hundred eighty three i don't i don't know him though that i mean to believe that it did in light of what we have in front of us i mean it to change the transmission line but this is routine maintenance the breeze kind of know that's how you have to see if you're abusing a big line with a little line that does not sound like routine maintenance to me you lowered the voltage by over half that yes that's routine maintenance it is making the system efficient it's the kind of thing that they do i mean i've i'm not a lineman so it's hard for me to  may not make a lot of difference in the end here but well i think just curious i think that it i think that it is required to attach it to a decision made by a policymaker and there's nothing really that attaches this to a decision made by a policymaker there's no five year plan that was introduced into evidence and there's no testimony regarding any of that that's introduced into evidence well obviously you don't need to win on this and if you're telling me that there's somebody made this decision without authority to make it that would surprise me i'm normally i guess my concern is just the magnitude of the decision is  not you know it's not it's not as though somebody is making these decisions and there's a there's lots of evidence that everybody's power gets messed up and nobody gets the power that they want and somehow al night has this practice of when someone has been say fired from his or her position working for bush city and if the person who fired the person had the authority to fire him or her policy you say you don't have to affect a lot of people you just go fire that one person but that's the best policy for purposes of now well here's here's here's the other issue with with monella and we didn't argue this in our brief but we did argue it in the court below and that is that orchard case where the public it and it he went in and drilled the well and the water seeped in and changed the salinity of the water that was used to water the orchard and so now that all the trees died after that and then in that case that effect from the policy and the decision that was made was so attenuated that the court said that this is not remediable under nine hundred three so i think that there's you know a policy  deliberate choice made from among alternatives and we just didn't have any evidence in the record regarding those points not to say that it doesn't exist but it certainly wasn't put before the district court  finally with respect to the exercise of supplemental jurisdiction and the court's decision not to exercise supplemental jurisdiction i wanted to give you an update on what's happened and last and i know my car my opposing counsel has given you a little bit of of an update if i may go out outside the record tell us about that there depending case yes ok and i want to do that in the event that you were to remain and this we would ask that you did not remand the state court claims because there are pending already in lassen county superior court and some of those claims overlap with the claims that were before the district court and some of those claims do not there are two constitutional claims under the california constitution and so i think that all of those factors which weren't before judge england at the time that he made his decision are still relevant to the analysis of whether the state law claims you know two of you involved in the spirit court litigation i am involved in the superior court litigation and mr matt his firm and his friend yeah so just to sum up there is no constitutional violation that is something that needs to be proved and if you have no further questions i would simply ask that you affirm the district court's decision ok thank you we'll give you miss mary we have another man the only thing i want to say is not not on the now but just talk just reiterating the point that where where you have a president in title meant to power that's necessary to operate your business that the deprivation of that is very similar to the kind of constitutional claim that the supreme court held in lieu hand made post terminations remedy inadequate i mean obviously in a case where someone is deprived of their livelihood of course they have the right to sue for damages but the supreme court in lieu hand distinguish that case from the situation before it where all the plaintiff has is a claim for money that was not true here their failure to furnish contractually required power basically put our plant how do business and so this this court can reverse on the ground without opening the doors to a floodgate of contract litigation coming into court under the guise of a constitutional right there paradigm we argue we we certainly argued that the end result of the power line of the power line change was essentially the loss of business and the inability to operate the plant there there there are lots of pages cited in our our brief where we made that exact claim don't pull loss of power interfere with our ability to operate our business so yes yes we did all right