oh yeah oh yeah oh yeah they all persons having any manner or form of business before the honorable the united states court of appeals for the for circuit art monist to draw nigh and get their attention a court is not sitting god save the united states and this honorable court your honor i would like to preserve seven men spray bottle and further inform the court that we will be splitting opening argument i'll be taking five minutes to address the due process component of our interlocutory appeal while my colleague sitting iraq will take eight minutes to address the first and then issues for procedural due process claims qualified live immunity applies and shields public officials from liability where they recently believed that there w torrie process available that the plaintiffs simply refused to pursue in this case the office of employment to speak resolution offered the virginia state grievance procedure twice to the plaintiffs david stoltz and robert yes but the problem here is that the district court ended the analysis at determining whether the agreements procedure was unavailable it did not it says whether there was a home with regard to that elio p g a you didn't have any you didn't have any thing in place to give them here you did and there is that is in dispute in the record your honor however that us the election state law does a fort that choice but that and that we are measuring federal due process under the state standard well you're saying that the plaintiffs never made an election  believed that they had made election months prior and that would be in the police what are you saying today in front of us is it your position that they made an election they made an election under the grievance procedure when they told the line for invoking for filing their grievances and the district court emphasized that they didn't elect the grievance procedure because they didn't file before me again this is elevating state law to a federal standard wasn't it up to you to grant them the l a o p g a hearing i mean you would think so at the end of the day they didn't receive a hearing of any kind and you bottom of it is you don't want to see people not a fair hearing because they happen to be critical of either an existing policy or a change in the policy because that they think that the law enforcement officer of this nine point one does file to be may proceed under either the grievance procedure or the law enforcements officers procedural guarantees but bot terminations grievances under the state grievance procedure and while this is going on of december the plaintiffs they filed an action a writ of mandamus in the roanoke circuit court to enforce their choice and that really gets at the heart of this the difference between federal standard of due process and state standard this is an issue for the state courts to figure out what are these nuances of state law whereas the federal standard you know was there an opportunity under state spander them a federal standard were saying to me that you receive some kind of hearing before this before the state deprives you of your employment involved you can have the hearing post germination but generally your whether it's a state standard or federal standard you get some sort of hearing before you're kicked out and they receive no hearing of any county by their own choice they also happen to be very critical of the commissioner's policies and that of a mix up over some misconduct did it occur or did it not oh whatever all some employees squabble perhaps but here these are two of the most critics immunity by the district court of lead administrators in the you know law enforcement matter of the two questions in the pickering test that can be reviewed as a matter of  denial of all right or hearing now that's just that's the in both of the cases we had the fourteenth amendment due process but in the stalls case we also had the first amendment issue which judge conrad handl pickering question was unfair question of whether there was a year before now actually there are two separate counts and the loss of the plaintiffs are seeking damages under two separate counts both the theory of the process in which they will have to damages the damages that you simply remain in order to give them a hearing or are the damages for denial of you process a question of if they had been due process that never would have been any terminations the district court did not decide that as a matter of fact he made statements in twenty sixteen i believe possibly it was twenty i wouldn't be affording a hearing that's not before the court assume that you argument is that you're trying to say it was not clearly established for purposes of that first amendment issue and are you talking about the frustratingly so you've raised other public concern and the question would be is whether or not fraud and waste in that speech to the secretary issue and then there's the traction will issue a substantial factor and for purposes of this interlock atory appeal we'll assume that mr stoltze would proceed to trial and demonstrate the substantial factor of in his decision to be terminated so the focus on the interlock atory issue is either public concern or pickering balance and i was beginning my presentation on pickering balance with respect to the t exam question because it seems to me you've got a much better argument on the stars than you do on the other issue regarding complaining about a personnel matter tell me why  merit in terms of the qualified immunity and now will distinguish also you agreed that your stars argument is stronger than i will agree that the stars argument presents a clear her problem with the pickering balance that is the government interest in not having the agents in the field confused by mr stoltze as representations as opposed to assistant commissioner hills or people today what kind of similar concern or other serious concern is presented in the first i mean i understand your stars position very clearly but but what about the you know where's the threat to the members of the public where's the you know public interest in how this employment issue w that the employee dawson was causing either fraud waste or abuse in a workplace disturbance and a workplace is of course internal and it's not something that's review because it's not protected ok you know what i slip my questions i put china ok ok my problem with your argument is the stars argument how is this an issue of qualified immunity for you how are you protected by that i mean here you have these officers are so concerned about the safety in the field they go to talk to a state legislator they talked to senator deeds senator deeds you can agrees to pursue an inquiry into this why isn't this the type of situation that you're not protected unqualified when you print of course thank you they were speaking after a decision was made a decision was made and it was communicated stops who was the who is the he's in command he was the commanding officer in the apple maddux division he was also  even when he was with apple maddox the decisions have been made in july the decision was that d m v was going to reorganize that they had coordinated with the virginia state police that there was going to be the availability of the officers in the field the field agents should go on and off and mr stoltze was disagreeing after the decision was made he was going outside of his position they didn't pack that officer safety and public safe and it's our position that it impacted officer safety and public safety but you can only speak through one voice this is the importance of a paramilitary that was emphasized both in brookie and in cruise and more traffic issues i mean weight of trucks they enforce the licensing of passenger vehicles so their responsibilities are not the full range of policing would call that a paramilitary force then if they're weighing trucks and and checking license organizers a law enforcement division of the department of motor vehicles and so i would ask for it to be treated with the same importance of chain of pickering contemplate that there would at least be some instances where someone would take a matter if it were a matter of public concern yes but what the court has to decide is whether what h my response is that the area public safety that still says oregon out is whether the officers in the field would be safe if they lost their connection to the dispatchers that was the aspect of public safety deadline and needs to be someplace and if the officers need to radio for help and they don't have that network to use that's perfectly understandable but the question is should they be hearing different voices one voice f the roads and highways and not just used by military vehicles so huge number of members of the public using i would think that the ability of a lawyer who's just to follow up on what judge keenan has said i would think that the ability of a law enforcement officer to communicate with the dispatcher might be an important component of of public inforced i don't disagree with that aspect of that your position is that yes it's a matter of public concern but that there's no countervailing public interest in having a  paramilitary group speak with one voice i concur but that still doesn't get at the due process question it's completely separate from the due process argument i'm not arguing that the process  hear you may find yourself arguing this expression what's the relationship between the two if if we find we whether one whether somebody raises a picker claim whether they don't raise a victory why aren't they still entitled to hear i think some sort before they have terminated from their job in other words i'm not sure that we need to claim for money damages as a result of her tally geisha for his protected speech under the first amendment it's quite different the district court has yet to decide what the remedy would do what the remedy would be with respect remedy simply to remain and of some kind of hearing or it and if the hearing  produces the result that he should not have been terminated then that word would would be would be entitled at that point to back are largely agree with what your honor suggesting it would be advocating for just conrad to remand the matter for the hearing well hearing and if the hearing will found that the individual was unjustly terminated or suspended i think that qualified immunity has been given in this court's decisions well the problem i have the problem i have with that is i don't know of a qualified immunity judge keenan made the point if the statute is clear the statute is clear that he should receive some kind of here and he received no here there's a question of whether qualified immunity should be employment action has to be caused by the speed of course and what i'm saying is i'm not sure how to answer that question in the absence of some kind of hearing d process hearing which which might bring to light the fact that there were other reasons that made the dismissal perfectly remedial a the question may be reinstated back but i don't know that we need to reach the pickering claim at this point in time because there's a big this is some question about causation i understand your reasoning fully ok thank you you thank  all right now mr gran's we be happy to hear from you sir may please the court good morning i'll address the due process question that will not need all of my time i don't believe and then my colleague webb will address the first amendment question four years ago today on october twenty five two thousand and thirteen you're asked for a hearing under the l e o p g a to grieve the terminations of his employment after thirty eight years as a sworn police officer the last twenty two with the d m v and judge wilkinson that you pointed out after complaining about certain precisely why we have federal courts they will not get a hearing they will not follow the law you have to take them to court as in the case with resulted in a trial by jury and i believe you know they may be delay and bring both sides  probably damages and all the rest i mean at the end of the day you know you might have to belly up and that's going to be you know it's not that they may not be all that pleasant but hearing when they are notable critics of the department and that doesn't answer causation question because notable critics can commit an awful lot of actions that justify dismissal in clear that you have some kind of a hearing and you don't get any kind of hear your your views the qualified immunity should be awarded on th right this was not a hard call for the district court i don't see it as a hard call for this court the due process question and they elected a hearing under the elio p g a the statute says that you choose one of the other but you can't have both as you pointed out judges can in the last clear there's no ambiguity in the law and there was no election under the state process because there is no form of a grievance dismissal form in this case now let me tell you something it may not be apparent from the record that may be instructive for you and that is just officers of the same agency one chosen by the grave one chosen by the agency and the tutus a third into can agree a circuit court judge appoints a third police officer not some part time part time hearing officer some lawyer who does part time work for the state now you don't need to know that to reach your decision but it's helpful i think to know the difference between the only o p g in the state requests procedure look i don't feel like i need to say a whole lot more about this  and i don't want to cut you off but before you leave that subject could you address judge wilkinson question about if we agree with you on the due process issue that they were denied their right to a hearing then is the proper tack to send it back without addressing the person in the new shoes or the first amendment issues really premature at this point i mean how do we analyze that yeah that and that's and that's a tough one that's a tough one i tend to agree with you judge wilkinson excuse me if that's what you're thinking that maybe the first amendment claim is premature they're separate claims but it's all related if you will i tend to  invite your clients to dissipate in the other greaves procedure if you can and invite me all day long to walk through a closed door not only door this close to it's been nailed shot  because of the statute as judge kanan pointed out and i can quote the statutes to you if i'm a with but that but that's it you can choose one of the other but not both and to invite the the great ones to walk through the door after it's been nailed in process clay does it make a difference yes or well i don't know if it makes a difference or not you can invite me to do the impossible all day long i can't do it i can't once one door shut you can't go through the other i think that's the answer to your question i like your remedies question though what do you do as an appellate court with respect to remedy i mean is it possible that mean i receive everything that he needs to or see if he gets his here you know that's that's the question not the timeline i give up on in this case i'm trying to figure out what's possible but as asked for remedies if i were this court i would leave that we have breaks the remedies question i would let the district court take a shot at that in the first instance if i were appellate judges addressing that and you would not address the first amendment you're saying i would not address it because my philosophy i guess on interlock atory appeals as is is it is perhaps like yours and i don't know your position judge floyd but just listening to your comments here today i'm not just but that's your job not mine i'm advocating a position with respect to due process but that's my view of the universe here for no other questions i get my federal the process purely from the violation of a stoat statute that it can be you can violate you can violate a clearly established state law without violating clearly established broder a lot and so the question i'd like to hear you respond to is that one  it can't always be a violation of federal law to write too broadly on this that it cannot always be a violation of federal law to violate a clearly established law the so the question then becomes when is it not and why is that a violation of clearly established federal law in your view in this codes when clearly established federal law requires some due process some and we could argue to the council come home over how much that needs to be but your case but my case my case is that is this i don't have a case because this issue is not hadn't come up before it's the statute when the statutes tell somebody exactly what to law i mean just in terms of the rock tell you she's got to have a property entitlement under a rock to before you bring you have to be a deprivation of a property right it's agreed here ok and that's just basic rock yes ok and where's the property right grounded it has to be grounded in state law right the rough property rights has to be grounded in state law that that is a great that is agreed here and there too where just tell me where the problem what where is the property rights grounded in this in the us in the state law here in new york what what what what gives you the state law property rights that brehm's due process and apply we do not it's not the process that troubles me it's just the grounding of the property right didn't brief that question because it was a career a great it was conceded to points or a great there is a property right and there's a constitutional right to a due process hearing but i draw your attention to your penned in and myers versus baltimore county two thousand and thirteen case as the supreme court has emphasized officials can still be  notice that their conduct violates established law even in novel factual circumstances i like better what judge might set in bona core bursts harriss that's a fourth amendment case i argued here before the court is qualified to say in the property otherwise the employment every state job has a property right i don't know that i don't know that this much i know police officers do have a lot of police officers have a property right and others for use not have a property right i'm not saying this panel this court said there was that bona core a stamp on a core prove the violation of the fourth amendment claim and here's the language i like quote we would so hold even if there were no reported opinion directly on point that's not your job  acceptable ok but also repress the issue of the interplay between the first amendment the due process if you receive your relief on the hearing and we agree with your position is it probably premature to address the constitutional violation has occurred it's necessary to ask what process the state provided in what it was whether it was constitutionally adequate this inquiry would examine the procedural safeguards built into the statutory administrate procedure  amendment issues i had not looked at that and i'm not sure i'm prepared to give an answer that clearly clearly looking at the well to go into judge wilkinson point if we if you went back to state ministry here we're all wasting violations of state law to transgress to due process clause whether in result is a constitutionally deficient process and that's what we're dealing with here so the cases reflect that you can look you look at the state procedures in state law to see what available that's what they're trying to say the b g p plus process i guess my point being picking up what you said i think the fact they didn't have rules in place and then implement those rules after the fact and not the process is just  appropriate they went in put their case in affirmed the jury and they put in the issues as let the jury decide were there good reasons to terminate this person or not and the jury decided that once the jury decided that that resolved  necessarily i mean judge conrad has not reached the question of remedy and so you know it's not at all clear to me that that's the remedy for a denial of due process of federalism questions and the rest once again might come back to the question of who you know is it necessary to decide in this case more than is before the court and who we can get into court kind of questions of remedies we get into all kinds of pickering questions and everything but what is before the court is a simple question and that is whether the title to fall out of unity on the question o you that question why is the if we do get to this issue why is the the first claim not the stars claim that the other claim why is this an issue of public concern i thank you for a little i would like to tell you that your honor in the record is tim sadler's deposition testimony he's the manager for the division of state internal audits and he explained the significant public interest of this hotline the fraud waste and abuse hotline he says it's a statewide system it's anonymous system allows reporting of fraud waste and abuse he says it's been very successful and under uncovering fraud throughout the state very very broad conception of the personal interest i mean public interest if people use hotlines for purely personal reasons right and the speech issue here is about the internal review of the hotline complaint that's correct right so it isn't as broad as just using hotlines in general is what process did the department apply to the review of the hotline complaint and why isn't that something that is not a general public minute elation of this process which is a vital process in the commonwealth they would know that that involves implicates serious governmental misconduct it would be of interest to the public to make sure that process works and we have a situation where we have  so maybe so down the road with your whole discussion of the you know the pickering claim is not the public interest it's important not to define that too sweeping but the public interest part of it is only one part of it's there's a pickering balance and it involves the balance over governmental interests the opposing counsel was brought up about having you know maybe there's a governmental interest of a but i just come back to my basic point about there's a lot we don't know and there's a lot to judge conrad hasn't reached i don't think we have the authority to just be o problem here i think it's important to understand it for the public interest the court allow me time to quickly in this case judge in the record it j eight forty six and six forty eight a sh sanders testifies that her director who's in the in the instructs for to change witness testimony and ultimately affecting the report to report comes out in this case judge it makes a finding that there is no safety implic implications occurring there but yet shrill sanders testified that no destination was ever done to support that fund and so we think that is the public interest so maybe that's something to put into the summary judgment record or whatever and you all right most the heart bruised to hear from thank you your honor i do want to focus on the question that you posed when is a violation of clearly established state law equal a pile ation a clearly established federal law and in this specific instance there is no case law on point which mitigates in favor of granting immunity and this is so because choice of procedures is not a constitutional right it's the opportunity what process bishop case the greet the plaintiff was informed by a superior that he could not use the local state grievance procedure that was reported to city employees at the plane dipped to not use that procedure declined to do so and disagree with you you lose on that where does that leave us on the first amendment questions that have become part of this case is it premature for us to address them or not as i understand this court property right here to some sort of opportunism strip some kind of here yes oka and it is my argument that qualified immunity should apply because that apparent opportunity existed by virtue of r s invitations and easy are is the state a d r is not the employer they are a separate state agency who has the ability to offer this process and whether or not this complied with state law is largely irrelevant because the supreme court of virginia has held in previous cases that non compliant strict noncompliance with the grievance procedure does not prejudice as of know if it doesn't prejudice the  present evidence and appear before a neutral arbiter to ultimately decide if the terminations were justified or not and because dean be believed that's the process that was available to him and there was no lot that could have said that this was a i want to directly address the question of whether this court should reach the first amendment issue or not and i want to make reference to constantine versus george mason university that decisions about a decade old doesn't recall and that decision presented an a t m in a first amendment case brought by a female student against the board of visitors at george mason university and the court noted that judge hilton the district judge did not reach the qualified immunity issue he went directly to the merits and said it failed to state a cause of action for which relief can be granted this court very explicitly said at the very first opportunity this federal court should reach an issue of qualified immunity now plaintiffs in the courts of virginia in the courts in this district this circuit i'm sorry they did on all parts of first and fourteenth amendment question yes if it doesn't if it does have merit you should decide it because it would protect the public official from going through a trial if it doesn't have merit you also should decide that's my position on that issue and getting back to the merits of the two first met claims there's just the stars that these are having to do with  the driving of the vehicles in the police signals it was within the record will reflect it was within d m these plan that they would continue to use the star system they weren't planning to leave those field offices without star system all that they were doing is training them to market on and mark off so that their location and when they were changing boundaries would be known by the virginia helped of to flush out the balance the pickering balance and supply a great deal more information on the question of causation or in the question of why there is a terminations all the question of  of whatever another word jobs or jesting whatever remedy is afforded whether it be a jury trial or whatever is likely to shed a great deal of light on the picture  play with respect i think your honor is making a practical point and i do understand your concern about considering writing up a practical it's not personal but what i'm saying is th will precedent is that no matter what else is going on in the case qualified immunity is discussed at the forefront at the soonest possible opportunity that's the precedent you're remedy is afforded for the denial of due process can help but shed light on the on the pickering plane and give you a much fuller basis on which to resolve  it's got to i mean we don't we don't have the resolve of a claim if there's no if if there is only a skimpy basis in the record for resolving it as i look over my shoulder to the appendix i find it's a very remarkable conclusion that we don't have an adequate record but i respect your honour's opinion all right thank you we thank you