bias in the university disciplinary setting in a disciplinary hearing there in a set of indistinguishable disciplinary hearing so in this case by way of a brief history just to make it make a little bit of sense dr park voluntarily surrendered his medical license in california he had a period of time where he was not able to practice as a doctor as he previously practice so he decided to keep honest to keep the dexterity his fingers and further his education so he applied to schools he applied to some schools and asked about his disciplinary history apply to some schools that didn't he got into some that asked god in the summer didn't he wasn't scouting out a school that didn't ask about his just for history he was accepted into temple that he was charged with providing false or misleading information virtually earned writing to the university or university personnel this includes but is not limited to news in a b and c under this so billy i understand that what you're your contention here is that applying the matthews versus eldridge balancing factors that a disciplinary process at a state university needs is intended to do and that is to ensure that there's at least fundamental fairness in the proceeding here he had notice of the charges a right to be heard center right thank you judge so any notion of fundamental fairness is really gone if you don't like the result of the hearing you can try the exact same fact pattern exactly in fact the exact same cause of action again right so then if we disagree with that premise that the second charges were the exact same as the first then you lose but so exact so that i think we have to look at the wording so that it exact same i think we could meet and exact same heard that would be the strictest the strictest burden the exact same i think the language being dole verse george mason where it says bringing you in charge is that where could have been brought in the first instance to do otherwise court that schools must universities must to do otherwise courts have suggested would create a perverse incentive for universities to hold back related charges with the aim of securing a second bite at the disciplinary apples so even if you don't want to take such a nefarious position how about it's just judicial economy right so if the charge could have been brought and should have been brought then you should bring it so that we're not worst case scenario deliberately holding back to charges that should be brought so we can try it one two three four five times theoretically more than that but in addition to that if if the burden was on your client to invoke race to to kata where is there in any of this record that he said to the panel wait a second i object either in the appeal or at the time absolute thank you and so the two hearings were so strikingly similar that at the point the second hearing began dr park wasn't completely aware that it was a new hearing he thought it was a continuation of the first hearing believe was certainly aware of it by the time he was appealing right so at the appeal issue and that's when we first brought up the issue that we've already been found that probation in the first instance probation it was the same determination in both did was the argument ever made to temple university you're barred by the doctor of race judicata from considering this second charge assuming for the sake of discussion here that not disclosing something which they say was completion was through the discovery phase when we received audio transcript of the hearing so dr park was only informed through the discovery process that at the end of the on a board proceeding after the team goes into the back and according to the rules in fact it is and the dean in this case and certain times in the defense referred to it different pronouns are in different ways because it's the same person and it's not just the rest of the which is an argument we're making and we believe it and we think that just a step back this is something that we don't see often because it's so ingrained in our system that you just don't try people twice for the same for the same infraction back to cheer point yes but the underlying issue is a conversation that he had with dr park who was here and pack really that that temples process all by itself not how it worked in this case but that the fact that the gets to make the decision release valve under the table where one person does all to get control of the panel goes rogue i get this in university setting but in this case right where it where it's flaw is that this person was involved in every step of the way and there's case law that says he's going to be the case with the way their system is set up so that's why i'm struggling here a little bit to get to where you want to get it sounds like what you have to say is this system the way temple has established is in its very essence fundamentally unfair because what you're saying here can be the case in every case that the dean gets to make these decisions and will be involved and can be involved in all of the decision making if we consider that a university setting especially dental setting is perhaps a smaller setting than other larger settings right there is a chance or a likelihood that the dean may be involved in the underlying issue so we're talking about a conversation with dr park and so what they're saying they were that the second hearing was actually a continuation of the first was it was eighty percent the same exact house with a paddle five three faculty and i would argue that the fact we the most important people on the panel because not not important but i would think that you know the  policies the panel should be a clean slate when you go in there should be a fresh panel they're not supposed to talk about the issues it's the exact same panel minus one student on the second hearing not only that it's the exactly one witness dr speranza and not only that she's reading from her preparing transcript essentially if you compare the two documents the exact same statement in the first hearing dr speranza stated we wouldn't be here if it wasn't for you lying in this informal june second conversation a feature of due process you cite the deval case in your opening brief not for this point but in the due book case we said quote collateral estoppel is not constitutionally mandated unquote that that is   stead something good now we dropped a footnote and said perhaps substantive due process would offer some protection against repeated the same issue by an administrative agency but as a matter of ordinary d property interests and depending and it's also probably economic tax rate so depending on the economic cost to the school it's what extra or different procedure should be put in place so we're actually arguing to save the school money right and again so they're great for  you and you know and it's almost like the kind of left wing reading and i maybe i shouldn't but their argument was what do you mean we gave you extra due process you got to hear this what more do you want when you had your two hearings and the both the same hearing until they got the answer they want so it's really saying charge correctly charge correctly the first time save government resources and ultimately everyone's property interests will be protected have to give sort of more abstract question let's say you know the court room down on you know the fourth floor they have to go against you yet you appeal we agree with you and it was back to you so you can't go back to that same judge it i right if it if everybody knows that it's an appeal and that's what it is and it's different if there's a final verdict in a final determination and in that case to protect to protect people that may detrimentally rely on the determination to protect all the other interests i'm saying is a due process matter to your client get a different judge as i we're trying the case right so here they're retrying the case but they're doing it because they're they're pretending not to be retrying case right so if if that so i don't know why they would be so if it goes so as far as temples policies go right they say that there should be a clean slate so their policies can bind them to stricter elation and in the fury case a temple case and in this circuit the standards and they violated their own standards by using the tainted panel ok thank you we'll hear from  pointed out the first decision was not final until the dean issued his sanction and he found expulsion in the first dependents these were two separate hearings because they were two separate charges but i'm wondering how that squares up with the record when doctors process them saying her name correctly  testified about the june second meeting and said it was with park failure to provide his original explanation and presenting false information has been june second meaning that led to the first hearing i mean in other words it it sounded like she was saying both things led to the first hearing so both things took the first hearing why was there a second hearing well i think your honor i think it is let's take the district court sending you have jury trials you can bifurcate you can try to protect the same jury inheres things but yeah but the but the curious told now we're going to hear this piece now we're going to hear that he's there is about failure to disclose and the other was about misleading both things were going on at the same time in the first hearing and in the second hearing the only difference was doctors mail did not like the in his mail did not like what the first board told them and so  he got the answer he wanted he was convene in another board that's and there's there's we're here on a motion to dismiss there is there are allegations in that complaint viewed in the light most favorable to mr park they could certainly lead one to say well that looks like what's going on dean is male just did not like here in probation he wanted to hear expulsion and we were going to run this obstacle course and tell that's where ended so we on a motion to dismiss why would we say yeah he just hasn't said enough he's got no legal claim at all that there's a process violation here we're here on the motion to dismiss because i didn't write the opinion your honor which is another issue in the interest of candor i would like to discuss that the other one i do not think that judge did or appropriately dismissed the and that's why i'm asking the question to you the way i'm asking although i would suggest your honor that you can take the whole record into account and you can you can affirm the laws clear the third circuit as well we know that university procedures it is not the same process as criminal trials the law is clear the laws clear in every court in the nation if we work it is just jordan says though  judgments there and that's not you that may not be a good thing at this point right the fact is that the record does not support allegations in which your honor posture you'd like to be or not you are in the posture that you're in which is defending a motion to dismiss in your client's favor and the challenge that we're asking you to help us to deal with is  a hearing the hearing didn't come out the way he liked without any additional notice to me very shortly thereafter there's another hearing where he gets the result he wants this was a product of bias and you can from the facts i think you can understand or infer the bias of the dean and the assertion that you know this was as they put it in their brief  quoting professor mark heads i win tails we keep doing it over and tell i when i'm i would suggest your honor that the verdict came out the way dean ishmael wanted it was the recommendation that they want from the panel but in the academic system that temple has set up the dean is the one that has the authority to determine sanction finding of responsibility and a sanction of expulsion would they want is to have a nine fine and nine non final recommendation for a system to be not in the abstract unfair but to be operated in a manner which is biased and in application via their yes your honor ok and we have a full record and a motion for summary judgment and a full response and from our point of view summary judgment is mandated on every single count both because there are not causes of action stated and because there is zero evidence of actual bias that it is that a concession mr him or that in order to get where you want to get we do in fact have to move off the motion to dismiss standard and we have to take a summary judgment approach here i would like the court to do that i believe the pleading is  but in light of the entire record i think it is much more powerful as a summary judgment summary judgment on every single count there is zero evidence of bias of the dean is cherry picking the dean the dean didn't like the recommendation so we had a second hearing there's zero evidence that the dean terry picking his own his own pamela can you can you point out in the record where the application called for of the suspension of dr park's license where's the question that required him to give that information there is not that question explicit but it is implicit that people give truthful answers but there is the there is the with you the there's supposed to be truthful answers but there seems to be a fundamental disconnect the dart because the first hearing by temple's account is that he he was he was misleading in his application and i'm trying to find out what you point to in his application that was mislead or did you ask for information that he should have properly have said and my license in california texas student dentist yeah i would back and i looked at the application as it's in the as it's in the joint appendix and maybe maybe this is not a full record of the thing but i w several times and i was unable to see the question and they say there was no question so this is just my opportunity i'm just asking if you can point us to where in this application this all starts with the assertion that you misled us that the jump and he says i didn't you never asked the question and and i wasn't trying to hide anything and there was never any inquiry about it where was there an inquiry about it that was in the conversation with the dean and the other two administrators that's there is not later you're right your honor i'm not going to make up facts ok it is not there wasn't a question it was not that explicit question but there is a duty it just as i have a duty of candor to this court there's a duty of candor when students are applying and but if there's no use for him or if there's no question that says tell us about your license around them a little surprise there wasn't but but it doesn't look like there was so if this all begins with hey you didn't tell us who were your license was suspended and his response is you to have asked me anything about it and then it becomes well you were you were you didn't tell us the truth we didn't like the way you responded when we started asking these questions does that begin to raise a question of bias on the part of board that there was you know we're bugged that you didn't tell us this in the first place even though we didn't ask it and now you're going to get expelled period that's i'm back to the motion to dismiss piece i got the yeah i mean it would be a stronger i would have a stronger position here admittedly if this were a decision on summary judgment and i would i would request that this court entertain the motion for summary judgment as we suggested rather than sending it back the procedural history of what happens here is they file amended complaint and then we have discovery which is expensive been time consuming for everybody and then we make our motion for summary judgment and there's a full record and i finally had my we get your position judge did or did not address the state law stuff he appeared to treat it like it was supplemental jurisdiction but it was played as diversity caress and it isn't that just automatically right there problematic been a lot of just as this court has spent a lot of time looking at this record if you send it back i don't know the judge did or would necessarily get it  another judge would have to dig through this complicated record and i respectfully request it is wrong he there's diversity jurisdiction the  the state court claims dismissed in summary judgment and we can decide and you can decide ok actual charging for the first claim it wasn't until after that it was distinguished to be for the admission in the actual charging for the first claim it was really just left wide open as far as because that was the final decision of to be so then then the question i would have is what would be the need for the second hearing since there is nothing new in the second hearing it was the same we were just saying hey let's look at it from the left instead of the right so the first hearing was probation the second hearing was he exactly it's a first hearing was probation i mean that's the point of mr hamburger writing that it wasn't a final decision until the dean rendered a final decision his final decision as to the first charge the first hearing was expulsion and that was in keeping with the temples process had sold is just think it's a technical legal argument if if according to their process you get expulsion for the first then you have to raise to go  dr ishmael knew about the board's determination after the first hearing but waited until the second exact same hearing before making so it's just that he waited until he had the cards he wanted to play before he made the final determination so had it had been made after the first hearing and not after the second same exact hearing very essentially similar obstacle sitting subsea ashley identical hearing then then i would i would be more persuaded by that but the fact that it wasn't made until after both hearings now with respect to judge jordan's question on the application itself now the temple application did not require disclosure of the licensure suspension but did the standard the testimony in the testimony at page two eighty three of the joint appendix there that would require we in your honor to know we do not see anything that would have that sean hid from temple or from the licensing board in fact doing he's doing complex oral surgeries and there's been no indication that anything he's done could that and you know practice or anything illegal or anything else