the next case today is richard rowe versus marion lynch appeal number twenty dash one thousand seven hundred and two attorney kind of please introduce yourself on the record yes good morning your owner's name is michael i am counsel to richard roe v opponent in this case reached the constitutional question because it focused on the threshold issue of whether it had a subject matter jurisdiction over the complaints requests for mandamus in counts two dollars and three dollars which the court dismissed after applying the wrong statute of limitations provision and finding that the filing deadline for those counts yet lapsed whereas that the record establishes that the correct at line was m judgments act this court then dismissed count one therefore this position of this appeal hinges on this court's the no determination of whether the district court had subject matter jurisdiction over any or all of the three counts in the complaint filed in this case when choosing the wrong statute of limitations the district court decided that district attorney lynch yet refused to provide officer pro with due process eighty b requires acceptance of a request consideration of the request and expressed refusal to act which the complaint alleges did not happen rather the alleged facts established that district attorney lynch ignored her responsibility to provide due process to officer row before she made her give me no impairment determination there was no express she did not have to provide your client with any process before making those determinations and the district court took the view that those could truly be read as refusal to act upon the requests that you were that you were making i don't i don't understand what's wrong with the way in which the district court reads those determination states what what's wrong with that and i just took and took a question you seem to take the position because those decision to not include any explanation any interior to respond to your question clearly care stands for in my view the proposition that the it must be in acceptance of an inquiry deliberation and express refusal to act something that is articulated here that did not happen in fact the district attorney ignored mr rowe entirely during the entire process also the court attempted to recast this case as it really to be appeal as opposed to any case requesting under that meanin specific provisions that are cited in the briefs of course but the there are two distinct attempts here one i think is is to obtain a clarification of what a police also what would happen to the sort of way that agreement is framed sounded not like it's tied to that particular case which makes me wonder whether there's article three jurisdiction at all as to that given there's no evidence of an imminent  it is yet which got an outstanding two to bring that claim i don't see why he's entitled to a general pronouncement on the question if there's no allegation that he's imminently at risk of a future demote goodwill impairment well he's actually subject to a continued scrutiny the district attorney which for example represents two counties in one prosecutorial district there are seven additional prosecutorial districts plus the attorney general a total of fourteen additional counties each district attorney would have to make a determination as to whether to adopt the district or district attorney lynch right to continue employment has been infringed and until at last there is an opportunity to been to get his due process on entitlements so when my time is up i and in that case it explains that where you're trying to bring a declaratory judgment that simply as a way of reframing relief that you can get under eighty b that it's not permitted because you're supposed to bring it under a to b so i think that cases is dispositive i think you can bring the clear terry judgments under that case to a an anticipatory challenge where there's where there's threatened governmental action but there is no threat and governmental action or the actions already occurred this is this is purely retrospective relief is the only thing that that this plaintiff has standing to seek so i think i think the the district court was exactly right that that any other anything anything beyond that is going to be  not jurisdictional itself a cause of action i think it certainly has pled as a cause of action in this case i think it was so and i don't think there's been any argument that the federal the federal  anywhere it below or in this court i think if you were to apply the federal standard i think you would have a very similar problem which is that there is no there is no i well i think what we have here though is is an eighty is an eighty b action which is a state law claim that can be removed in federal court and then they're seeking a relief of a declaratory judgment so i think i mean i think if it's if it's a cause of sure turning to the failure to act versus refusal act this is not a failure to act a failure to act is a very specific kind of claim to law court is explained it's a remedy for a tardy decision so you bring a failure to act claim when you've filed a permit application and the government has has done nothing for months and months and eventually there's a point comes where the government reasonably should have acted when it  at that point your stature limitation starts running to bring a failure to act claim but a requirement of a failure to act is that the action has to have not happened yet in this case the action there has been a hearing wouldn't do anything at this point because the final decision has already been made so i think the district court was certainly is very plausible to read this as a refusal to act because those decisions not just arguably but necessarily meant that there was that there was a refusal to hold those hearings because they were specifically requests for for free deprivation hearings i think the other argument that the district court didn't consider but that we raise in our briefs is that i think the best way to understand what the court or what the what the nature of the government action here is actually as a affirmative government action because the  actual relief that's being sought here is reception of the gig leo decisions so the the action the government action is being targeted here at the gig leo decisions that's government action and that's very clearly subject to a thirty day limitations period which runs from the date of notice so i think either way you look at it the case is going to be time to that thirty day limit and by the way even if you looked at it as a failure to act which again we don't think that's the that's the correct way to look at it those actions are reasonably should have occurred by the dates of the glia decisions so that's when the that's when the stat claim accrues in the statute starts running under the plain text of the statute s months so that even under the six month limitation it wasn't brought timely because the claim was brought six months and one day after the last gig where determination so no matter how the court looks at it it should find that these well i mean my recollection of that case your honor is that it it it sets forth that you can remove if you can remove cases under state law that have state law claims where they haven't betted federal questions but you know i think you know my understanding i guess is that there has to be a there has to be a cause of action under underlying all this and that there is unless you're   again i my understanding is that it's very very rare that there are direct actions arising directly under the constitution the only one i can think of again is is a bit of ins action and i am not aware of any court that said you can bring a only thing i'd say turning to the are alternative argument which is that even if there's jurisdiction the claim can be dismissed on the merits as i think that there are there are lots of different ways you can look at these employment related due process claims but i think there's two themes that run through all the case law that i think support our argument that there is no due process right at stake here one is that the meat case that this court decided and other cases are  very clear that the the link between the deprivation of employment and the governmental action issue has to be direct that it has to be the same source that where you get the you know allege stigma reg reputational damage and the and the employment related consequences this is not the case is not a direct link it is very clearly an indirect link where the prosecutor does something which causes a completely separate employer at a completely different level of government to to to make it to make a decision to terminate and the other i think principle that runs through all these cases is and this is most apparent think in the town of castle rock case the supreme court case which is that the level of discretion that the government decision maker has in making the decision is crucial in evaluating whether there is actually a property or liberty interest at stake here and in the castle rock case the issue is whether there is a property or liberty interest change police and forstmann of a protective order and the court found that there was not and and the reason why in part was because of the the  very high level of discretion the police have in terms of protecting looks a so this is a very similar type of decision where you're you're dealing with a highly discretionary prosecutorial decision about who to charge what cases to bring and  declare rights status and other legal relations whether or not further really which is the a b relief is or could be claimed regardless of whether or not for the relief it is or could be claim so no objection according to the statute no action or proceeding shall be open to objection on the ground that at the glare of jury judgment or degree is requested here it's undeniable that mr rol has a property right to continued employment and at the supreme court the u s supreme court has it no circumstances required that due process be provided to an employee to r allegations of misconduct before a decision is made in this instance this is the district attorney lynch is action was the only in direct cause of the termination which which is why this is the only path to been to cation mr rose due process rights because there is no other possibility for such as an lot of email the supreme court took into account that there is a post depreciation remedy available and so provided a moment as which is what mr rollo is advocating for pretty deprivation my it's partly incorrect judge because going on all officer row is requesting is a pre decision opportunity to defend himself before the district attorney district attorney who was the direct and sole cause to his loss at the point in foreclosure of future employment there's a distinction  to my colleagues have any further questions but i know now thank you mr khan and thank you thank you at this time attorney kind often felt may disconnect from the