taking a brief recess after the second argument of the day that would be the crime and foerster case will begin with tolerance against university of notre dame appeals eighteen twenty five fifty nine and eighteen twenty cross seventy nine mr marshall morning your honors may please the court kevin marshall representing the university of notre dame this case has a somewhat complicated procedural history but it's fundamentally a breach of contract action and like to focus on that claim in my opening argument as in any contract case the plaintiff must show a breach and at that breach cause the damages he claims he or neither was the case therefore independent reasons why the district court erred in entering a judgment over over five hundred thousand dollars for dr collins on his claim that notre dame breached the academic articles in firing him for conduct which he later pleaded guilty to south from a federal program first in holding on summary judgment the notre dame breach one procedure in the course of the academic adjudication leading to his dismissal the district academic articles because the contract explanation of why an alternate is elected for a three professor hearing committee contemplates recusal only for actual bias or interest in the articles did not require he could have challenged it within the hearing committee which is a formal hearing it's not was not address below whether he could have done it in the appeal process but it is clear he made no effort to do so the appeal keeping correct committee and i'm not certain whether that was a challenge below was not an issue that bought a the procedure nor could he make such a claim to notre dame carried out the full panoply of procedures for which the academic articles call and there's no evidence of bad faith take just the hearing committ itself father coughlin was just one of three tenured professors on the committee they received briefs they held a formal hearing at which the parties were allowed to have and did have counsel and they ruled under a clear and convincing more tenured professors from the academic council they conducted a full review of the record to no avail and they too were unanimous in agreeing with the decision to terminate dr collins for serious cause in fact many persons at four different stages all found serious cause to dismiss dr collins my third reason and any of that the disc or on summary judgment ironically ignored the doctor concert forfeited the supposed procedural a district court approved joint appendix it was undisputed the dr collins knew firsthand a father kaufman's earlier involvement in the admittedly informal mediation yet he never sought to recuse him from the hearing committee not withstanding ample substance as well as the requirements of rule sixty six in getting dr collins damages for the suppose a procedural breach after a bench trial the district court violated basic and sound by the district court after trial stablished think that notre dame did have serious cause to dismiss them just as every adjudicator notre dame found at every stage of the case that includes the fo reasons why the decision this court should reverse the disappoints binding on the procedural breach and enter summary judgment for notre dame i'd like to briefly address a few other issues before if you want to take potshots well there will be plenty of  for example the supreme court a few years ago in a case called going against united states dealt with the three judge panel from the ninth circuit with a territorial judge sitting on it by designation without article three protections and the supreme court said not acceptable to have that one there were two perfectly capable in a core of two article three judges b green court threw out the results of the appeal and before that he'll give a district judge in the federal system sits on an appeal from a decision that he or she made in the district court there in serious trouble so i guess i'm there i can think of some counterexamples like that in which having the wrong person participate because of various considerations winds up undermining the integrity of the decision the first part in this is a contract question and then it's important to keep in mind what father kaufman did previously actually  mediation dr collins agrees with that characterization and all involved was father cochran and one other person having one phone call with dr collins and his counsel and representatives of the university  did not involve making any recommendations to resolution of the case it's not involved in the decision did not involve the pining in any way whatsoever on the strength of the parties positions i don't like like compared to some other examples one might use so given the nature of that prior involvement in which father coughlin did nothing to express a view on the case with or be any reason his impartiality might reasonably be b i can't think of one in dr conses not pointed to any given that involvement in the first stage of the proceeding did father cotton have any relationship to the underlying dispute or to the parties no evidence standard that applies our brief document a long list of facts found by the hearing committee to support its finding of serious cause none of which dr collins has challenged i'll simply highlight one which is his repeated massive uses of misuses a federal and notre dame grant money to buy non budgeted cameras and computers for his own personal use to the tune of approximately three hundred thousand dollars that at least provides a substantial basis for the university to have found among other things academic dishonesty professional misconduct in the function of the catholic character of the university and one of the things that you've argued mr marshall is   courts generally tend to to defer colleges and universities on tenure matters and i totally understand that with respect to deciding whether doctor so and so's dissertation in mathematics or physics or in microbiology is sufficient to warrant either hiring or for later work is appropriate for tenure i wonder whether that same difference is appropriate here when we're talking about in essence of reach a contract claim it were courts deal with whether one party has cause to terminate a contract all the time the cases that involve granting tenure are not the ones that we rely on those certainly analogous cases we cite all involve dismissal and yet they never last apply a substantial compliance question with respect to procedure and substantial evidence standard with respect to the substance of the decision as i think that that is different than the difference between granting tenure and here revoking it it is at most a matter of degree so the definition serious costs in the contract contemplate the same kind of expert professional academic judgments that might go into a tenure decision as i just mentioned a list of what counts the students cause and these were part of the charge to collins talk about academic dishonesty they talk about professional misconduct and they also frankly talk about questions of religion catholic whether his conduct violated the catholic character of the university that would be that it's contemplating actual bias or interest and then the phrase we're talking about comes after a comma and it says including participation in the informal resolution process so what to what does one do with the word including in that phrase i think you would have to read it as a subset of what comes before and it what comes before should be read to mean actual bias or interests than the including means including any actual bias or interest that might have arisen in the context of the informal resolution process that's the textual argument in the contextual argument which actor collins doesn't really respond is that there are at least two other producing provisions in the academic articles including one in the same section that explicitly require total recusal if a purchase professor had any prior involvement one involves the appeal board which judge wrote in or was asking about since you can't be on the peel board if you're on the hearing committee that's pretty straight forward another which is a few pages earlier so you there no further questions i'd like to briefly address some issues in the cross appeal i can address that more in rebuttal if necessary with respect to the question of whether the damages awarded five hundred thousand dollars or dr collins was to love and should instead be five million the key point there is that dr collins completely fails to grapple with the language in the academic articles that directly addresses when notre dame started and should provide salary and they start providing salary and they're very explicit says notre dame pays until there's a final decision and that's the final solution does not have to pay and that's precisely what notre dame daycare paid dr collins throughout the academic tutor cation until the president of the university issued a final decision it's not paid him since exactly the contract calls for on the question of constructive fraud there are multiple independent grounds two from the district court's decision after a bench trial other highlight a few dr collins as far as i can tell identifies no even supposedly false statement by notre dame he also identifies no remotely similar case finding a fiduciary duty and simply ignores the three that we cite with respect to the both of those it's telling the factual findings of the district court of course reviewed for clear error that is that he doesn't even seem to challenge at all one is that notre dame did not occupy a dominant position over dr collins with respect to the propriety of the use of grant money and the other  that he not notre dame was primarily responsible for the propriety of perp purchases using grant money with respect to the last element of constructive fraud regarding advantage it's at least agreed i think that any advantage with respect to the first proposed amendment on the claims of negligent misrepresentation remember that this request came four weeks before trial two years after his prior amendment other constructor fraud claim which is related and he gave the district the hearing committee to find these did not as a matter of law satisfy the definition of serious causing a contract and this is something certainly that a court can review it's a question of contract interpretation we have the findings from the he aring committee now we have to see if those findings meet the definition of serious cost in a contract and serious cause is defined in the contract and in the charging letter against dr collins the associate provost not the pro post write that letter but the associate provost lists three three serious calls allegations serious or deliberate misconduct continual serious disregard for the catholic character and causing the tourism public scandal in this case the allegations there  was no publicity or public scandal there were no issues of religion or a continual disregard of catholic character and and certainly even if there were issues of that misconduct and deliberate misconduct would have to be   purchasing equipment outside of the end of the the m r i grand budget it's not misconduct because notre dame there's a significant amount of evidence on the record saying that notre dame allowed and in fact inform he did not need to request permission from the national science foundation to purchase grant equipment that was not in the original budget notre dame has a process and they haven't tired operas of research that helps professors deal with grant administration issues and there's in fact an exhibit exhibit eighteen that shows very clearly this was distributed to dr collins by the office of research that the the national science foundation does not require notice  disclosed that it was for grant purposes he wanted to quit not for personal use not for personal use and personal use it's important at the hearing committee did not find that the fact is used extensive personal use they found there was pictures of your house pardon me it gets it allow for the tak of of certain types of objects and in fact his lab contained thousands of photographs of his equipment and things of that nature notably the hearing committee would not allow that father coffin who was head of the hearing committee would not allow be visited during the hearing committee otherwise those thousands of photographs of equipment and things of that nature would also been in evidence there was expert testimony at trial that the cameras in the photographs and that fact used to help on grant purposes and there's there's no argument from anyone from the other name that it wasn't used on grand purposes raise any challenge to the hearing and it didn't mention father conflict and your reply memorandum stated only that his participation was immaterial to your summary judgment motion question from judge rover was where did you alert the district court and notre dame to that possible procedural order i believe is in the complaint judge where there if there is an amended complaint i know that it contains procedural breaches was that the amended complaint before or after the summary judgment ruling i believe there was one amended complaint after and all those breaches were in the record before summary dame had forfeited its right to raise the issue about the failure to play by dr collins to raise any challenge to father coughlin's for to say shit where did notre is in our brief but district court judge i believe transcript at seven hundred thirty four in the transcript is where the district court judge talks about that he wants to hear affidavit is i could ever imagine and judge the other issue and that is that that raising that issue is not required under contract the contract language speaks for itself that that he must recuse themselves and does not does not state that the professor must raise that issue that's a plain reading of contract in addition on the summary judgment record there were other breaches procedural breaches that the judge could have raised but that he did not because he found that father covered what did you argue i'm sorry what did you argue in terms of procedural we will not raise those arguments but they were on the record for the judge to review did you want to his duties but it may delegate means where when he's permitted to delegate he may delegate them it and places him throughout the academic articles whenever delegation is allowed it's always stated for example the president or his design case in this case section eight that there is a section of the terms nation requires that the provost make the final decision of the provost after reviewing the hearing committee findings determines days to appeal this decision when he had never received the factual findings of the hearing committee and that's significant because how would one prepare a successful appeal when one doesn't have the factual finding those polk davis that did not include that we found that out first in this case when we received the original hearing committee report with the factual findings and all  findings that is in the record just as well that the to the letter and then the the actual fact of findings in the supplemental appendix one ninety five and two hundred if you want to review the two different documents to thank you cannot be imposed until they do their damage just flow directly from the language of the contract in this case in other words without without if you're into the following procedures one cannot dismiss a faculty member nor can one stop contract require that salaries paid until this procedures and is completed there's evidence put on about those damages roughly five million dollars and that's the expected earnings through retirement this number is it is a fair number because that is anticipated when he signed the contract and that number is much lower i think than if you did an analysis of his years of his life versus his salary for each year but that those damages are in the record and and they're supported and they're asked for and judged until we find ourselves in the position now where notre dame could have cut off these damages very easily by performing the procedures correctly the district court told them that they should do that they never did it and they got a second hearing in two thousand and four thirteen where they went through the process again using the criminal conviction a serious cause but the evidence was in the test name was dr collins was no longer a professor at that time in other words notre dame got themselves into a position where they can no longer so your theory seems to be that any procedural bible in the in the process even if the professor doesn't raise it that leads to in the process at least terminations means that you can't correct the problem later and the professors entitle to lifetime salary because of the procedural bottle that's where your logic leads and no judge you can correct it later it's very easy to correct you simply because your position was that it was impossible it was very possible for them that they would have had to pay him though while they corrected the notre dame did not do that and if they had started paying him in order to affect the procedure they would have been then been subject to the wage claim statute which would have produced treble damages because it would be unpaid wage with that judge is that what dr collins did was what he was told to do by the office of research and it's the defendant's conduct that led to death to that actually so the defendant's conduct cannot for like to address a few points and i'll start by going in the order in which i made my opening argument with respect to the question of waiver two points first my colleague pointed to the question about whether the hearing committee would visit dr collins lab and i raise that because it illustrates the way the hearing committee operated and what should have happened if there was really an objection of father hoffman which is dr collins attorney should have and you also heard agreement that the factual findings of the hearing committee are correct and then i'd like to point to one of those in particular which addresses some of the arguments you've heard charged and won by the hearing committees on page one ninety then finally with respect to the question of the