what i have the clock you're still give you a two minute warning when you're closing in on your time all right that's great thank you your honor whatever you really well may please the court with this the court's decision to grant the motion to dismiss we believe was incorrect and should be reversed the different court incorrectly rejected john doe's title nine selective enforcement claim and is breach of contract claim in particular in regards and the comparative now when i say similar of course i'm relying upon the title seven standard that's involved and as and i would also add that we are here on a motion to dismiss which means that the more relaxed standards because of discovery show exactly more details as to how they work but i would suggest the to hard to imagine two more similar circumstances especially when we're talking about ro you have the same investigator involved you have the exact same decision makers reading the exact same reports which contain the exact same witness statements and you have the exact same sexual encounter between the two parties and all the events that lead up to them you have different view between row about what happened during that that's one counter but that's not part of the similarly situated and now similarly situated analysis i respectfully suggest your honor is an objective analysis and when you look at those objective factors time place decision makers you have a most identical although i hate to use that word because i don't think you have to meet that standard but alleges that they have comparable intoxication of john doe in row two and alleges that the university applied the rules in the gender disconcerting manner program forty two of the amended complaint that from page ninety nine of the joint appendix indicates that they were both drinking now what the district court did it cited the progress forty four the amended complaint and this paragraph describes what john doe perceived about indicating that she acted in the way that  was consensual and i really would suggest to the court that this is one of the big mistakes made by the district court because the different court misread paragraph forty four dollars of the amended complaint nothing in that paragraph indicates that john dollars that they are comparable that's the allegation that should have been accepted as true we believe for a motion to dismiss standard and that's the one that supports the title min court in the contest of the selective enforcement claim but here i think it really sort of tells where the university is coming from and what they're doing in these cases the allegation of jane doe one is that she violated the retaliation provisions of the sexual misconduct policy and in particular he violated a provision that prevents the parties from talking about what's going on on these cases they're not supposed to talk to anyone  completely confidential proceeding and she violated that university was aware that she violated that and even though they were aware that she violated that they did nothing they didn't take any action to look into whether she had done any wrongdoing they did open up a new investigation and we believe that this is important because it really underscores the context of what's going on in this complaint as we described in paragraph nine to fifteen of the complaint schools like the defendant in this case were incentivized by the department of education to adopt policies that favored female complainants over male respondents paragraph nine th doe who is complaining about unequal treatment rather it's a student complaining about equal treatment and offering a plausible reason to believe that his complaint would have a basis in the real world so when when your hon role on what you have is a university that is invested in supporting alleged victims and supporting their stories even when they do something wrong and ignoring  that and i would note that this is different than the context of an amnesty provision and that the provision for example where if the student admitted they had been underage drinking before the event that they wouldn't be prosecuted those are would be typically applied equally to both sides anyway but this is actions that occurred within the context of the investigation and so would not fall under any kind of amnesty type situation is it is it your allegation that the investigator the outside investigator is and is the university's agent i'm hesitating a moment your honor because i don't think the amended complaint speaks about it in those terms but certainly let me tell you why i ask it follows up on the conversation was a pass because paragraph sixty three between the other witnesses or don't want to go to and if that's the allegation i just wonder how the investigator fits into this is she a neutral is she the university they just want to have as she said in well i m i want to try to answer that your honor if i may without using the the legal term agent i think it may be easier to describe what we believe is going on here which is that the investigator is acting coordination with the university's title nine coordinators and so in a typical situation the investigator will keep the title nine coordinator informed about what's going on will use the title nine coordinator at the school to help arrange for witness interviews and take other action like that so i don't think you're gonna need to find that they are an agent to show that they are acting  university i would suggest select these investigators they're not just picking random lawyers off the street but they are selecting people who they believe will act in the way that the university want to act and act consistent with deprivations by the school so when you're talking about a hearing you're talking about an opportunity to send oneself an opportunity to view the evidence that would be used against you to respond to that evidence in real time and an opportunity to subject to rules of evidence or representation by counsel but that it must have some opportunity for hearing but i don't want your honor to think i'm dodging your honor question by saying what this hearing would look like but i don't think the court needs to decide what that hearing would look like and provide guidance for other schools going on to rule in our favor rather than respect we suggest that the court only needs to say there was no hearing in this case you know when you look at the case law very few dismiss and say this is what i'm hearing it because everyone kind of knows what i'm hearing it and more importantly i think it's enough to say we know what a hearing is not a hearing is not an interview by an investigator a hearing it's not a lawyer meeting with someone in the room and saying what happened and you tell them what happened and you maybe provide a little bit of information to them and then they go off and make a decision but rather a hearing  is i think it involves some form of back and forth between that some ability to look at your decision maker in the eye and know that they're hearing you and more importantly know what they're looking at from the other side so i think you could leave for another day what particular process the school must provide to meet the very minimum but that the core of our breach of contract claim are these pennsylvania cases saying that fundamental fairness involves notice  some form of hearing and there's no question that there is no hearing provided in this particular case can you remind us did did meet with the panel minds that was there no penalty on it was this the independent greenspan how are you i'm doing very well thank you your honor and you great thanks i'll do the same thing all interrupt you when you have about two minutes left for effect thank you may have please the court good afternoon my name is leslie greenspan and i represent the aft tele the university of the sciences today i'd like to address two main points with the panel st district court properly dismissed those title nine selective enfor university investigators to follow up on any misconduct they became aware of regard looks whether doe brought to their attention well your honor it very well may have been but in this instance as you can see from the investigative report which is incorporated into the amended complaint everything that though told the investigator was that this was consensual everything we did was consensual those are his words and everything he described in the amended complaint is that his interaction with row two i believe was consensual so the investigator had no reason to look further or to make any further to initiate any kind of proceeding against that referencing thank you that they were the comparable intoxication of both participants so what he's alleging to fairly read the allegations both in paragraph ninety nine and elsewhere he doesn't say that he was intoxicated he does not say that he was incapacitated but now in this appeal he is trying to now change his tune from everything that happened in real time at the time with the investigator and now change it up to say well i was drunk too and i was taken advantage of and i was a victim that is not what was happening at the time and he does not allege that he was intoxicated  words that he is again that comparable intoxication of both participants not i was intoxicated or she was more intoxicated and in fact every thing that he told the investigator again in the the report itself which is part of the record is that he was quote buzz his own words to the investigator but i think i mean it seems like what we're asking is that there was an allegation at the time of a mental or physical state that by the university standards could be sufficient to defend the defeat the ability to consent so why at the time that this was a way was this not something that requires the invest the university to take investigative steps in other words it seems as though all the predicate facts that were necessary to at least examine this question were raised at the time of your honor there's nothing to suggest that the investigator didn't consider it and in fact when you when you look at the questions that were asked in the interview notes from both meetings that the investigator had with mr dulles you say that that question for asked about his level of intoxication or his level of consent and all of that was addressed again he had he had given every indication that what he what i'm sorry with our question as i judge for as i read that paragraph  designed it seems to me you can put your welcome the push back and you can talk to your your colleague when he's back but it seems to me that that's drafted very deliberately because i i think as i understand this case his position is we were even though my position is this was consensual if she couldn't give consent well then i couldn't either because we basically have the same amount to drink your honor perhaps had he alleged that had he articulated that perhaps but that's not what he's articulated here he has not let it alternatively as your honor have articulated that he has simply said throughout the entire investigation process that it was everything was consensual ever so for him to now he has not alleged what your honor has has has suggested that you don't read my mind every paragraph ninety nine that way no your honor i read paragraph ninety nine as the district court did to say he alleges that they have been drinking and there's a big difference as chief judge sanchez of the eastern district said there is a big difference between someone was drinking to honor the words that are used in that particular paragraph ninety nine i'm only looking at after the part where it says they had been drinking you know it says notwithstanding to be comfortable intoxication of both participants so again it's not specifically saying it does not say what doe now wants it to say which is i was drunk i was taken advantage of i was a victim that is a new theory that he has i think no i think what he's been is if if she was couldn't give consent then because of our comparable intoxication not that i was drunk but we were comparable in our level of intoxication and if she couldn't give consent well then i couldn't either so you should have investigated the difference well your honor i do i do see the difference but but the important piece for the court analysis is they have to be similarly situated and in fact what does that mean with no mitigating circumstances that could differentiate or justify any kind of inconsistent treatment assuming there was any and in this case you've got john doe who was never got john doe who was accused by two separate people  honour's look at the full policy and in its totality and in the individual provisions there is a formal process in place here and the process requires a formal complaint and only want stuff filed is an investigation triggered i'm sorry you these facts under this these allegation under what was happening at the time in connection with the investigation that wasn't what was before the investigator that was and what was before these panels that wasn't recounts are we getting a little bit deeper into the factual inquiry here i understand your argument when you say were said earlier that joe is offering a different theory in this complaint then was presented during the investigation and i don't come back stage in the proceedings but i don't see how that's responsive to the argument now which is based on what has been played why is that sufficient for your honor the characterize the investigation how things were done how things happened and noticeably failed to attach to his amended complaint a copy of the investigation report we then in our motion to dismiss h attach that investigation report because it was integral and relied upon immaterial to the allegations themselves and the district court accepted that without converting this motion to dismiss into a motion for summary judgment there are multiple examples i'll give you just the most obvious which is times where john doe has made allegations in the amended complaint that are blatantly contradicted by the investigation report for instance he alleges that  investigator did not meet with john doe as much or as often as he met with the complainants and yet the investigation report pacifically contradicts that cannot be the law in permitted to survive a motion to dismiss because of misrepresenting the document that just simply can't be the law i i can't accept that so our point is that the investigation report is a part of the amended complaint so no the court need look no further than the allegations in the complaint with the documents that are integral and relied upon in connection with an amended complaint which is the investigation report among others conduct so you've got those who is accused of sexual misconduct with two different women versus one who in connection with this litigation now and this appeal is accused of some sort of breach of confidentiality now we've put in our papers so those are completely different and the court need look no further than cases such as new stuff which i recognize as the nd circuit case where the court is talking about selective enforcement under title nine finding that that place who was accused of sexual harassment was not similarly situated from a male of another male who physically assaulted someone different legal allegations conclusory allegations bald allegations are not enough to survive a title nine as though we are not bound by want to protrude could look at this a little bit differently and i'm curious if you would have a different response if we were right now if we were to analyze this case on for the plausible inference test rather than the status and in this case the district court found properly we believe that the conclusory allegations that were set forth the the gratuitous gender biased phrases and such were not enough to support these claims and in fact the plaintiff here here is still required to make a plausible showing to survive a motion to dismiss which we believe he has not so much we will be on your time i don't want to cut you off without giving you a chance to address the  fairness that the university has set forth in its policy and the cases make clear that what is step forth in the policy is what he's entitled to that is that is how fairness is defined and in this case we have say that there was some fairness concern but that's not the case because in this case not only was an extra little independent investigator brought in from the outside for the purpose of avoiding bias as opposed to just having someone internally d investigation but that person was brought in did a thorough investigation interviewed both complainants interviewed twice and during his nd interview with the investigator he had an opportunity to review her notes and findings from the  model consistent with the fairness to promised in the contract well your honor they're there i don't i don't see any reason why and i don't think the doe makes any firm allegation there was anything improper about a single investigator in this instance you had a single accused you have two separate acts of sexual misconduct that are alleged both to have occurred at his apartment off campus sense the traditional sense that your honor and we as lawyers are used to attending but there was fairness here even without such a formal judicial live adversarial hearing there with fairness because he not only had notice of the allegation and notices frankly not even on the in dispute on this appeal but he had opportunity to be heard every step along the way  had an opportunity to provide written commentary written statement disagreeing with what the investigator had found and done in disagreeing with the process he had an opportunity to be heard every step of the way i certainly if i could i just interrupt because i know we're running short on time i agree that that i could agree have to set a clear that that's a more efficient way to proceed efficiency is is an unusual term to use when we're talking about processes that surround deprivations of rights whether they occurred a contract or stablished in some sort of positive law so what's what's your what's your bottom line ground for why it is that the courts depart from the normal sense of the sea of cortes that are necessary to ensure fairness and instead it applies as you of called it a standard of a here he had it every step of the way and the district court outlined all the ways and had it and we outlined that in our brief that's well he got everything to which he was due under the court under the university's policy and he h provision suggests that there is no opportunity for john doe to appear as that and i was able to confirm that john doe did not appear before the hearing panel i think it is think the tension is perhaps overblown your honor and the reason is there is a big difference between a legal pleading and a statement or notes of a statement really consensual it called student does not have the legal background or the legal training to understand what may be the something the law he says is consensual because he is being asked does the other person consent and he's saying yes they did consent but it's hard i think really unfair to suggest that a college student is held to the exact language is he sitting alone in this interview with w trained lawyer and that that could somehow modifies what is in an amended complaint what we need to look at is that the amended complaint and i think if you really dig into this idea of consistent intoxication you see where that tension really comes consent even if every other indicator is that things are consensual because the person providing those out in the catered to intoxicated this being said a student is saying yes and acting in a  the school is still going to dig into that look into how much they had to drink to see whether those outward manifestations arkansas are are still valid some when he's talking about consent in that investigative report he's not talking about it in the same way that we're talking about it in the complaint itself i think if what you're referring to specifically is a comment on page two hundred and fifty two of the joint appendix where john doe says he was buzz but not drunk that's the question is this a violation of the policy possibly but we don't know on this record because those terms  congested so you have to accept the allegation that the medic complained that he was comparably intoxicated to row two as as the court pointed out the school has an obligation when it st to get this information suggesting that there could be misconduct to dig further and they don't do that with john doe they simply accept his statement at face value say we don't have anything to look at here and move on i think i think