brief here the defendants have argued in the district court ruled that satisfy and the requirements of loudermilk versus cleveland board of education for our notice and  opportunity to respond was all that was required to satisfy the due process and depriving dr kay of this to her tenured faculty position at the university of arizona however this court has clearly established to the contrary that much more is required than simply notice an opportunity to be heard in detail how to handle the i didn't understand that that was an issue that you were pressing on appeal i thought we were talking about whether or not qualified immunity applied and whether or not the appeal is barred by failure to meet the deadlines under the arizona a p yes your honor and qualified immunity is the issue regarding notice an opportunity to be heard or the other clearly established requirements for due process that were talked about in terms of a had a totally different panel we had different issues there we did the issue was whether or not they were entitled to qualified immunity in the panel help that they were so are you really arguing qualified immunity on a different ground is that what you're pressing here we're ar different due process violation but you are seeking to have us overturn the prior panel's determination that they were entitled to qualified immunity but for a for a different reason for violation of the profit a different group of defendants doing a different procedure and it doesn't require overturning the previous panel because there were a different set of previous set of facts this regard stuff let's be clear about this because i i want to make sure i understand your argument if the issue was qualified immunity of the members of the panel and that the university panel and our prior three judge panel held that they were entitle to qualified immunity why aren't you collaterally a stopped by the doctrine of race judicata from raising that issue again today because there was number one a different panel number two a different set of facts number three a different violation of due process that was alleged the court addressed in the previous determination and here we have subsequent events basically it went back to the university after the re manned by the superior court the university started a new set of processes and when it engaged in that new set of processes it did not give dr k due process in the second set of procedures that for example it did not give her an unbiased decision maker that gave her decision makers that had already stated the opinion taken a public stance on it given the position and as a matter of fact president likens even had it posted on his website that she was guilty therefore he couldn't be considered he was he he was named i think he was involved in both right because he's the university president yes rather how can we i mean it seems to me it's a factual possibility if it's the same ultimate president who has to make the determination how can he how can we can or the fact that the first time around based on the first university pounds recommendation they recommend  terminations and he imposed that discipline and then when the second panel made the same determining the same recommendation he imposed it again how can that be evidence of bias because  after the court had found that the first process was arbitrary and capricious that the first process was  nevertheless relied on that and only on that that arbitrary and capricious process to again pronounce or guilty and if  and therefore needs to be reversed and then a person says but i still think she's guilty because of that process that ar process findings and that person cannot be considered to have a unbiased opinion if that were the rule how could we ever remain and a matter to the same district judge who had sat as the finder of fact in a bench trial where we reversed and re man for retrial it seems to me that the logical extension of your argument is that in every case we have to tell that district judge you have to recuse yourself rehearing this case the second time around because you previously made an adverse determination if if your honour's found that that previous judge had acted arbitrarily and capriciously in his previous decision i think your honour's would be finding that there was bias at work and that you should request actually i understand your argument has some concern about the failure to exhaust issue what what's your view there was no adequate remedy that was available the arizona supreme court held that judicial review of the administrative procedure that the court could not even order reinstated but couldn't do anything to remedy the situation and therefore the judicial review procedure is basically a waste of process because it cannot so your argument futility it would have been a futile to go through the administrative appeal process laid out in the act is futile to to try to get the court to order her reinstated court can't give or damages court order to reinstate the court can't do anything basically except remain in the back to the university who can then again have another biased procedure so there is satisfied with the latest procedure no loudermilk makes two requirements loudermilk sparrow's that there have to be prior to terminations notice an opportunity to be heard and you agree that you were afforded notice an opportunity to be heard pre term a nation right there was some opportunity to be heard yes and yet not as it was adequate or not depends according to the louder mill whether the pre termination opportunity to be heard is adequate depends upon the level of the post terminations proceedings and the rather proud reading of louder melanin louder mel itself said well  that there has to be both the preacherman ation and the post determination or it could all be merged into one and you can have just as you have here the whole proceedings or cre terminations counts here down about half a minute if you want to reserve ok thank you to hear from the state athletes this case has a long and convoluted history so i think i need to correct a few remarks that were made by my opponent this morning with respect to contentions that he's made first of all at the time of the decide that she shouldn't seek administrative review of the administrative decision terminating her employment she sought such review but she sought so beyond the time limits set forth in the arizona the case if they find that there's been an error of the law and the administrative agency should then take whatever action is appropriate and then there can be further review of that what the arizona supreme court said and the decision that mr hayward campus thinking of to the administrative agency the board of regents in the board of regents did not give or back paid an ocular benefits were due that was subject to administrative review and at that point then it could have been remanded again to order that until it was made right he is in error your honor the first terminations hearing resulted in judicial review under the administrative review act and that judicial review found that dr k denied the opportunity to go through reconciliation procedure in fact when it was remanded she went through conciliation procedures twice the other thing that was determined wasn't she was denied counsel who had a of the charges of her own counsel and she appeared for the actual terminations hearing itself after the faculty panel of eight new faculty member heard extensive evidence over sixteen days with respect to various charges including falsification and fabrication of her scientific research data dr he had full notice had full opportunity to respond had full opportunity to attend attended the actual terminations h fulfillment of his judicial responsibilities that this court can give serious consideration as to whether or not that judge should be disqualified it's an objective standard criticize him what is the what was the website do to that argument the fact that the decision was posted on tens of thousands of students when when the faculty when the when the first deficient hearing took place the president had made a decision to accept the recommendation of that faculty panel and terminate it and posted it and and there was a press release that was issued and and the age of the internet your honour's or website sometimes carry those press releases forever and it and press release was in fact a statement of what had been determined the first hearing that remained there after the  that was given to mr commons it says we must independently x assess the adequacy of the post terminations proceedings not only in such an assessment usually and her due process violation was the same his fear she was a whistleblower and she claimed bias retaliation thank you counsel your time has expired the case just started will be submitted for decision