i would like to reserve five minutes for rebuttal this place has two distinct issues one is the weather and not the grant of summary judgment was premature  in light of the scheduling posture of the case and the second is whether or not the court properly applied race you to caught it we suggest the answer is no on both of those issues initially scheduled to be argued on march twenty sixth two thousand and thirteen and it was supposed to be oral argument on the motion for summary judgment as well as a scheduling order when the parties arrived for all argument the court had inadvertently failed to schedule it and had to reschedule it the court then rescheduled the motion for april twenty second two thousand and thirteen in the interim on april ninth two thousand and thirteen the court issued a written opinion in order granting summary judgment so there was never an actual hearing on the motion for summary judgment there was only the trial court's written opinion on summary judgment so we don't really know exactly why the court chose to issue it opinion in order without or argument and we don't know exactly where the court was coming from we believe it was prematurely granted though since all of this arose out of a state statu that was signed into law by the governor on july nineteenth two thousand and eleven it was a statute that amended three separate state statutes including the public employment relations act the school coach and the michigan teachers tenure a nd therefore there has come out of this a great deal of litigation including the state court claim that that's sort of analogous to this that we had filed regarding these layoffs but that steak or claim initially began only with michigan constitutional challenges not with federal constitutional challenges and so it was in that posture that this matter was file you know subject matters to different theory and in the state courts deal with this sort of claim every day i mean why why a separate lawsuit because we would have preferred to have federal court judges do them in the united states constitution versus a state court judge examining the united states constitution routinely over the last ten or fifteen years around when there have been even in federal court when there have been federal claims and sta claims the federal court will address the federal crimes then kick the stay claims about when a single unified cases brought federal court we have the opposite here we have a case that was brought state co and then you know and i think we have a some kind of state due process theory in that case if i'm wrong either correct and then but then we have a second federal case that's filed with the federal due process theory that's quite different from a federal judge court declining to exercise supplemental jurisdiction and i mean why i guess i'm just scratching my head about why we have two lawsuits in anything your answer but the cases that you're heard to don't aren't this situation or are there cases that you're aware of where you know out of our circuit perhaps where our court has said it's fine to bring your federal due process claim in federal court while you have a state court case with the state you have similar state theory pending at the same time i'm not aware i haven't seen that really i'm not aware of any of your own but at the same time as plaintiffs we remain the masters of our complain and we get to choose our form we get to choose our cause of action but here it's for up you know that's kind of what i'm getting at sure except the state court claim obviously is in the federal system and in fact the state tort claim has taken on an entirely different dynamic and is now based solely upon the state statute on deck a still pending what is status just out of curiosity there were four motions for summary disposition filed in the state court on that ok on that application so it is it is now solely based on whether in c l three eighty one twelve forty eight and twelve forty nine create a private cause of action the state constitutional claims are completely out state court but i don't believe that we want to get into a situation where state court judges are routinely deciding federal law order or us constitutional law with all due respect to the state court then to do it every day they do it in cases frankly where the stakes are pretty high criminal cases every single day ok but but that isn't that is in criminal cases i would suggest that you know a case like this it's still a little bit different to have a a state court case in this instance was rare and that the state court judge issued written opinion that's extraordinarily rare in state court cases in michigan it's frequently the case that it's a grant or deny and then there's  not what what's wrong with that argument well i think that the district court below did say that indicate that he did not have to  allow for discovery and he did that in part based on an interpretation of twamley that i disagree with ron but with regard to the race judicata we take issue with that ruling as well because i believe that the ruling there was invent the federal the u s constitutional claims could have been brought and i think that is too broad a ruling i think that this circuit has ruled both that it embraces a narrow and a broad view of race to the economy i think that it's in i think it's an accurate to say that it is per se a broad view of race to the conduct and i think that the district court in this case it open counted compline have been theoretically yes yes people do it every day well i don't know that people have done it every day for the last ten or fifteen years but there than there is much more i would suggest to the bent there's much and i mean it's not or even that i'm just curious because i understand what your point is in this case the judge in the state court case made a conclusion that  there's still stuff the charge courts doing here there is no final judgment in this case there's not a final judgment after a trial etc but the court has determined that defendant is entitled to some right so i mean that's why you know a summary judgment ruling in federal court at but there's still another claim and that's so the case continues you can't appeal that here's a final judgment the same thing in this case it's not a final judgment well the plaintiff theoretically may appeal this distributing code one eighty three michele three twenty six nineteen ninety there are also multiple other unpublished decision by the michigan clerk appeals in federal trial courts were finality without defining it but i would submit to the court that any in any argument when in truth to those cases finality there's really nothing at issue in that it's clear that this it remains good law and is it any rate you've got a state court claim by the plaintiff which is a field education association the union on behalf of its members alleging that there was a violation of the due process rights under the state constitution and you've got the we've got the federal court case that by the way the federal that meant that the prior ruling which said that the layoff of these individuals without the benefit of a layoff policy was improper as a matter of law under the new statute then they have violated the statute the remedy for which is reinstated again though there is a stay of that order ending the defendant's application for leave to appeal not appeal the ruling on the state constitution none of the defendant has fallen application relie appeal i have not i'm happy with the posture of the case so and if and if that application for leave is not then i presume there will be an application for leave to the state supreme court and if that application for leave is denied them then we will fight about the remedies for my client assuming any of them are left because under the statute the maximum remedy is reinstatement within thirty days of a judgment that's all they are entitled to under the statu