good morning and may please the court this case concerns the bounds of government employees first amendment rights to freedom of speech and freedom of association those are two distinct rights which require two distinct modes of legal he had a yard sign supporting sheriff chapman's opponent and also after sheriff chapman was nominated he served as a advisor to the local chapter of the police police benevolent association and them not to endorse sheriff chaplin the reason why he opposed sheriff chapman and supported his opponent was because he believed that sheriff chapman was involved in bribery abused sheriff's is not true in the context of this case because this case is as i was about to say is really a subspecies a subset of pickering because it is a speech concerning government misconduct and in the numerous cases durham we have we have and in bankruptcy of this court in the jenkins case which the course says the court did not believe it was ever contemplated that the sheriff must attempt to implement his policies through deputies who have expressed clear opposition to him now if our an attorney reading the average say well jenkins presents a big hurdle from a and  because here we were dealing with the same thing trying to require a sheriff to attempt to implement policy through deputies who have expressed clear opposition well you're honor i would respectfully say that you are actually think it has to be read according to way this court said it should be read and in the bland case this court quite clearly said that jenkins set very very mixed signals and the court said quote jenkins is best read as analyzing the duties of the particular deputies before the court so the key threshold for brandy is whether you have a position that requires partisan affiliation and requires essential political approach where we completely agree with that's the excess that that along with the statutory provisions concerning deputy sheriffs are the basis of those to decisions read together on the well in part yes i would say your honor but i think what part of the problem is is is that if you look at the variety of cases of this court on the whole application of brandy part of what i think you see in the law enforcement world is is in the context of those cases it sort of didn't matter that you go beyond the sworn deputies and this is this is the i think the important point here is that there is really no such thing as a virginia epic because sheriffs  our county sheriffs and sheriffs have the ability to control the powers that are delegated to there are you saying there's no such thing as a deputy sheriff under virginia law no i'm saying and i'm not quite saying that i'm saying this is that you cannot compare all virginia deputies you can't say all the deputies in the commonwealth of the same and the reason is because each sheriff has but that's a losing argument for you because this whole case is been used been pumped up  as some kind of super deputy i mean his his duties are not just ministerial may involve plea bargains and what to offer and want to accept and they involve who to investigate and th what you just said is factually incorrect respectfully he has none of those powers if i could if i could just make my point for a second best but he doesn't choose what cases to investigate he doesn't make prosecution recommendations he can't even make a decision to arrest someone without a superiors approval and he has to write a written operations a memo to arrest someone and also to to search but the reasons if i could go back to judge wilkinson is that  whom he's going to prosecute your honor respectfully judge a judgment does not make for the kind of political requirement that allows judgment government employees hundreds thousands of government employees exercise judgment all the time the ministerial and ministry of distinction does not get you to the the the question of the partisan divide sheriffs have the right under virginia law to determine kind of power is delegated available on those facts so i'm sorry i don't know the answer to that but what the sheriff has done here he has done something not just sheriff chapman but prior sheriffs have created a structure where the it created a clear line of demarcation between the political people and the not and the professional part the general order yes or yes between the political people and the professional law enforcement people below that that the it is only the sheriff's office which includes the sheriff and two colonels who are the bureau commanders and then the commanders of the five visions that explicitly have policymaking authority and then each of those are your man paul and ali well we have the sheriff or exactly my guy is there's a major there is captain there are two attendants and he reports to a sergeant he is the equivalent of maybe a private first class corporal somewhere in that regard and so i absalom self as the lead detective and complex have profound cases including rape robbery homicide investigations and then the nurse and this was mccaffrey's own description of his of his ro a someone who had served twenty years in other departments mccaffrey had the discretion to contact directly the commonwealth attorney's office medical examiners office to interface with kno employee your your honor if i may i want to read quote from brandi because it goes right to your point it says in some the ultimate inquiry is not whether the label policy maker or confidential fits for a particular position rather the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved and yes your honor he was involved in important major crimes he had to make a decision about who do we talk to who  this council this man is an elected official and he has a responsibility to translate that electoral mandate into the running of the office and you can't do that with a fifth column in in the in  the shop and then when you look at the complaint here it reads like a political say on body and it certainly took to come back to my friend s business about policy he's this whole a complaint is an attack on chapman policies and decisions he's in the complaint he's  tazers and other words he takes on everything but the excuse me he takes on everything with regard to the power emitted in the shero shop and you know it's it is it's it's hard enough to run a railroad under the best of circumstances but when you've got somebody fundamentally opposed to what you're doing and actively working to understand and demand what your policies are s attorney's office or whether it's a sheriff's office and maybe even stronger with the sheriff's office because it's an elected official it becomes impossible to do the job and because whether you look at the  at his own complaint and his which is a political broadside over matters of policy i don't want to interrupt you and i really didn't mean to be rude but you weren't at all having worked as a special assistant had nice when he was twenty general i'm very aware of political felt columns in government entities so very sensitive to that but i would suggest to you that you are understanding the facts wrong here first of all he has done he has not been a fifth column what he did was vote in eight and a convention put a yard sign up and recommended the p p a not to endorse this man so he very discreetly expressed his reasons why he did not think be read that you have to look at the extra beauty of the particular position what what the county sheriff's office have put into place is a regime that actually and this is where judge wilkinson what i meant by we agree is that it does two different things if first of all very strictly limits who can be involved in policy and those policy makers are in charge of operational units on top of that there is a very rigid structure it's a paramilitary heard from all three of those questions we want to concentrate your argument on things you on things you think re may have overlooked well first before saying i want to point out to the court is that counsel is now mr mccaffrey never spoke publicly about the election nor did he in any way other campaign for mr noble so his attempt now to bring up this free speech first amendment argument narrow he's an investigator you can't investigate criminal cases on the basis of politics no no you can't can't be political can't be a political position because you can't investigate criminal matters on the basis of politics and but but your aunt came to this country that's right and but but it's not a part this is not a political position well it is so the political it can't be political you can't have politics involved in an abortion law when you're talking about hand when you're talking about strictly investigating i agree but when you're talking about stop at the co when you're talking about even even in jenkins i don't think judge things point is antagonistic to you because that's the point right is that it wasn't stopped at the at the investigative door that's  was a good investigator and he was doing the job and even even under jenkins the fired on politics wasn't far he was just not reappointed politics and he was not a policy maker fact ultimately decided perhaps by jury because when you look at the when you take the complaint of four corners of the complaint which is what the district court did and looked at what mr mccaffrey and soft represented that he issue and a question of whether this jenkins case is on point or whether it's distinguishable and it's i think it's directly on point i think even not only is it directly in point i think the become point in this case goes even further because i don't know how many deputies and i believe it was more than one hundred but i know i don't i don't recall specifically but let me just say in the in the jenkins case they were talking about a  patrol and the jenkins case the court for circuit for out when the when when when a patrolman is out there dealing with the public that is policy that is that is a power that he is implementing the sheriff's policy and the same thing same thing as in this case but even more so when you have a lead detective on highly highly public current politics all important i'm saying there is not supposed to be and i agree with the court i'm saying that that when you have the right to make discretionary decisions then then your politics or your feelings about about your boss and about his his policies possibly can come into play when you have a para well first of all the knowledge is not exactly correct because here you have an elected official that's right and he's responsible for for implementing the mandate that the voters g is certainly correct that the law enforcement should be nonpartisan but given this record there's absolutely no assurance that any decision would be made by this individual in a way that would be supportive of what the what the sheriff was doing given this complaint the political broadside against each and every aspect of the office it was reason e of the sheriff to believe that he would be trying to undermine him at every turn that you have somebody who not just opposed him but it is inverter and hostile to every step of the man is taking and that is squarely within jenkins i mean we we create real problems in the district courts and attorneys and everybody out there who tries to follow our decisions if we take some kind of if we take jenkins and try to shave it so thin as i come back to what us in earlier times we have rip tides and cross currents and nobody knows so we're going to litigate this jurisdiction  that jurisdiction is jurisdiction and you know there's no to determine if if jenkins can be distinguished in this case then you know official through through discovery process which is a continuing political smear which i would argue that's younger my motivation on this case is completely inappropriate and it really has an impact on the sheriff and his ability to to run his his organization let me talk about two other issues that are raised one is what what we can consider in this you objected to  consideration of the general orders and the handbook is your position on that required for the district court they sustain those do we have to if we disagree with you and say those are properly in the record is that had is that out had is that changed our decision or does it i don't think it does your honor the reason we objected to it was i think it was clear from the district court's opinion and warner that he did the but but your point is that if even considering that evidence if you look at the allegations of the complaint and match him up with or compare him to gene consumed and bullying and that it it would still fall within the exception absolutely what about the post terminations conduct that's not something that we have on yet that is mentioned in any other four circuit cases is that relevant at all i don't think any sometimes interference of contract or in virginia we have baumann claims if they want to bring claims for so i whistle blower or something like that then certainly you could have asserted those clients with these claims are strictly first position is that we are talking with ale rod brandy about an exception to the first amendment and if your goal have an exception you ought to keep it confined to that exception and that exception applies to perhaps terminations of people based on election day but it does not apply if you do more than that such as go beyond determination to this post germination conduct what's your response to complaint is true i'm not suggesting the findings were made i'm suggesting that the court viewed to four corners of the complaint to base its opinion you reiterated what he said in his complaint that's right that's right your honour's in conclusion this this is a sheriff's office sheriff who is elected by the people of loudoun county who was elected to to follow certain policies and mandates that  ask that you maintain the president's course and not reverse those previous cases because there's good principles and good reasons why it's hard enough to run a sheriff's office which you and virginia which has many political aspects to when you have a lead investigator who makes some of the allegations make some of the name calling and other things that are in this complaint and then has to deal with the commonwealth's attorney the medical examiner even even in his say that if you're elected official the public's mandate is supposed to be followed and sheriff and making sure that that happens can make political patronage decisions to not reappoint or terminate folks that clearly oppose oppose him and opposes policies thank you i've got several different points based on our exchange that like to to address first of all i want to remind the court respectfully that we are here on a twelve b six motion and i would suggest that much of the factual scenarios judge wilkinson that you talking about are really kind of beyond the pale here because you do have to take this complaint and the facts narrow alleged and there's no evidence anywhere that mr mccaffrey undermined in any way any professional law and the four circuit cases does say you have to show that the terminated deputy has been disruptive they just don't they just hold the the precise and that is that it you don't have to have actual disruption but you have to have a reasonable likelihood of disruption now the prison here then we're never well it's not present here because you have a track record that even during this time this is in our complaint talk to the prosecutors in the brilliant steelcase and he said he thought that mr mccaffrey was a wonderful invest a gator a good guy and all that sort of thing so i think that in looking at that there's  cannot just say theoretically there's a possibility of disruption but if i may your honor i would like to return to one thing the judge conahan that you said also and that is the point i was trying to make is you were focusing on the notion of sworn deputies and part of what i think you have to do is look at this you're supposed to look at the attributes of the particular position i don't know of any sheriff's office that has the detailed general orders that this does which constrains the meaning of sworn deputy without any constraints is not what we've got here you have to do and see what responsibilities what authorities they have and the the fact that a crime is complicated or that someone is experienced doesn't make the task of law enforcement political i think it is it is a point it's not supposed to be political but given this asking me to sort of you know someone who has been hostile in every every way imaginable suddenly turns into a good boy scout rejoice the office if this were a title seven claim and there was a question a reinstatement as an equitable remedy no district judge in this circuit regret reinstatement under these circumstances for many over reasons we've talked about today you honor i would respectfully suggest suggest that what you just said was filled with factual characterizations which don't reflect this the fact that he was a was an experienced infested of significant crimes is not political when when when does the invest good yourself or in your own heart i don't believe that's true at all your honor your honor let me let me point let me talk about something we haven't talked about much and that is on the pickering side of things and the reason why i want to talk about that is because you your honor yourself problem with that what we're talking about here it is the fact that there was nothing about the office the way it was organized the way the gangs unit was organized the way the budget was run everything about it whether it be a policy absolutely should be and this politicizing this political base goes in exactly the opposite direction and all that is on top of jenkins which is my fundamental point because  just shock it overboard two points your honor first of all with respect to jenkins the court's precedent is you have to look at the particular position and i would respectfully suggest that the structure that has been uniquely imposed here  the concerns that you're talking about because it number one limits the people who could be political decision makers but more importantly because of the structure of supervision which we have set out in our briefs and we've submitted the general orders is that people from being insubordinate but at the point that there is a political let me let me just ask you this you're out of this is a question i would respectfully ask you to think about here because if you're a government employee and the material the allegations that are complaint are are honestly felt genuinely meant and you can say it's political but you say that in a tone as if that's bad but if you're chairman really has done these things he is a bad man and should not be sheriff of loudon county so you have a a person an insider who and all the cases talk about that the public hears about misconduct from insiders so this man's did the right thing this isn't just about misconduct toxicity to this whole business that goes far beyond normal political opposition if if if sheriff chapman is that the city if