though many different courts their issues of just individual ability there's a doctrine of qualified immunity this court and lower court within the circuit have often commented on the confusing interplay between these concepts this appeal presents an excellent opportunity for this court to consider how all the pieces of the puzzle work together the starting point is the plainest theory of liability they allege that mayor rogers and director myers to non final decision makers that their actions led to their terminations under this theory they seek to impose both personal on the mayor and the director as well as municipal billing on the city of perth to address this liability  derrius important to break down exactly what the cast call doctrine he has because often it gets confused in the case law with ratification under the cat paulson area you have a recommender who makes a pretextual recommendation to a final decision maker ratification scenario you have two bad actors both with a joint unlawful animists the joint question in this case is whether a cat three of liability is ever really theory in the context of nineteen eighty as well as the weaving versus the southern miss the citizen let me ask you question sir because the cat's part fear well i think you're arguing it at two levels one level it is whether the alderman the decision makers were acting as a quote kept power for the mayor and the other one is whether the mayor and mr myers can be held individually elia believe in the they were not decision was involved in the notice of appeal and you represent them on appeal does not mean that we necessarily have jurisdiction but a ruling will inevitably affect the district court below so it really doesn't matter if you win if you win for the individuals you will the district court will have to rule accordingly in the matter is on remand and if you lose you lose it's only correct depending on the hundred three law and that's the only theory of the case than deciding that issue an individual in the individual liability context would give the court to visit two different yes yes cats but there is their only theory and if it's not the if it's not viable would be a legal question which you describe as unsettled and invite us to settle that which therefore under culbertson may may be conclusive for the individual different right but it wouldn't necessarily be for the city i question that harbor and this is a much tougher hill from a decline to say that this court would have been with us to do more than that does get us into the debris decision that you critique that yeah but but but here's here's a point that i'm looking forward to hearing them state because the briefing has been minimal more from in my view their side but also the district's opinion doesn't give us much in terms of theory so when you reduce the case to their only theory is the cat's ball i didn't see that in the complaint when i read the complaint the theory is that mayor the mayor was the final decision maker and his final decision was that september thirteenth letter i didn't see any suggestion the complaint that the theory was leverage cats ball what you're i think the plainest they may they may say that you're one hundred percent right it's always been cats ball i think it has been i mean if you if you go to there everybody can see that the only the board of aldermen has to follow you to say that but i have difficulty with that because when i read the deposition it didn't seem like pennypacker these individuals were clear they get so they jump back and forth the mayor makes the final decision well but then i was going to get to the law is the law that you've given us was in your twenty a j letter citing advanced technology which is a decision that came out well before briefing  we've got only twenty eight j suggestion of that as the law but if i remember that case that was after a full trial and we took pages and pages of analysis to say that the city council was the final decision maker not the bear as person it it's closer but we don't have much discussion of it so then i backed up your grease and if i'm not mistaken you never say anything as a matter of law in your argument section the only cite you give for the fact that this city council the board is the final in your facts section and you cite the thirty plus year old attorney general opinion but here's my question in the twenty eight j letter decision you gave us didn't that decision say that the attorney general opinion is not binding  go to page seventy six of the record and then at eight fourteen through eight seventeen during the plan of counsel discussion with the mayor the mayor explains how this process works as far as the recommended recommendation of somebody in the city has to instigate determination and he said the vote you be to do you that you may be right but the vote is not to overturn his decision his decision is purely a recommendation and then they terminat you look at page seven eighty six through eight fourteen eight fourteen through eight seventeen that it explains what happened even if there was no appeal ever the mayor has to take this recommendation to the board and they have to they have to  vote on it we're going to take your time the last question then what about if his recommendation is given as he did here and according to the disputed facts at least according to the district judge the board not only accepted the action remain pending in the district court you know out of there is there are several and we actually footnote on in the background section and in our brain like four or five there or there or the court didn't address any of those as well wh time ruling well let me ask you a question why didn't you i mean the judge didn't rule on those others summary judgment claims i suppose you could have briefed them on appeal to that well you good morning i guess i'd like to first address an issue with regard to who the final decision maker was we are agreeing that the board's the final decision maker were to make there were some it seemed like a little confusion i created a confusion normally cats paul deals with an issue of a non decision maker influencing the decision maker in the decision maker isn't aware of the animists isn't aware of the protected activity isn't aware that the decision maker has a particular animists in this situation the decision makers were fully aware they knew of the protected activity where do you have any evidence of that since you didn't they didn't pose any of it's undisputed it's in the briefs it's in both briefs and we did  pose that the mayor will now wait i mean all of this turns on whether they believed the mayor and mr myers or whether they believe the plaintiff says to why this this sixteen dollars worth of stuff was purchased at home depot and whether an authorised work was done on myers house right right and if they believed if they alderman believed the mayor and myers why didn't shut show retaliation well how can that create even a fact a huge just in and of itself on retaliating or we think because of cats paul but as well with ratification we're they are all but all you have you don't really have anything to support that you have a claim against the mayor and myers who were directly involved and then you have no evidence about the all the minutes such while there's not evidence with regard to what the author is that voting to terminate no there is not evidence it's regard to specifically why we do have specifically what was presented to all other men and what they based their decision of and would you point to how as the one that at least there disputed issues of fact as to whether the board reflexive lee is animists what's your best authority there is  jurisdiction is to the city in the first place we did not contest in our brief on there we looked at it as an issue frankly we're going to have to get to it one way or the other before this court and if the court wants to take it up that well that's what i figured it was kind of if you wanted or not on there and i certainly appreciate the argument that it is a different party that injures just and may not apply in that situation but i think that's just something up to the court you know and a case where it has applied at the circuit i'm not aware of a case particularly and we're not i'm not arguing saying yes i hope y'all do do this it's more about i situation of we don't care what you do or not do on the  the individuals that cause the cat's paw can have individual and all of that but then subsequently we said in published decisions that that's unsettled law well how could we possibly say now it's clearly well the court that is one case where it said it was and another case where it says it's on settled law i think the beginning case says the president and the fist circuits rule of orderliness requires the court to follow that precedent on there it's very clear now the no mistaking it there's no confusion there's i don't see how the court frankly could say there's confusion on the issue when the dupree case says it very distinctly i can i don't know how clear it could say that it's bits very clear that th it doesn't actually rule and it didn't apply that theory in debris itself well if it acknowledged that cat's paw could and could do it in that fashion it did not hold that it applied in that particular based on the facts of the case not that there was an issue of whether it it was questionable it was it does a plot but the facts just done a match up on this i mean this is retaliation for the exercise of first amendment rights that you cla the whole cat's paw theory is that they got fired because they exercised their first amendment right but this is in the context of did they or did they not violate city policy or arguably state law right brecht there is there is no year that the so the best you can say is that the remakes mode i mean since you have no direct information evidence about the alderman the best you can say is that the mayor the mayor and and myers who are activated only by retaliate and that the alderman made a decision but if that so you can even catspaw that to the alderman without saying it seems to me a fact a serious fact issue about the alderman acting not on the basis on the basis of only retaliation versus some other you know the idea that they were the one to violated the policy while you're on the think i should address this earlier when you brought up the issue of well you did not oppose the board of still a jury question as to what they really did so even if they come in and say no that's not what happened but you don't dispute that discovery is concluded the case is ready for trial i do not dispute it as you know you're willing to go in bond and try to show the jury that the all the money the ratified an illegal motive or were or well you know i don't know what you do with cats but anyway yes yes we were ready  go to trial frankly with one address the other state law issues that they brought up those and they make a an argument saying that a district judge has to give a detailed analysis there's no requirement for that i mean certainly if it was a qualified immunity issue there is a requirement that a judge have to give a detailed analysis it's clear taste like you want to go to trial or not go to trial i want to go to trial in the case of been hanging around for quite a while yes  there it has it has been hanging around for a while we got a ruling on summary judgment and we would be a trough just not a field there's also a waiver argument we brought with regard to the qualified immunity that the defendant did not argue you're right there are initial brief is is based on that we countered in our in our brief in reply saying you wade we also did that the district court as well on there is something that we brought up at the district court and what and then say oh qualified immunity well actually you can sometimes in this matter maybe but i think i think we provide a case law says you can't waive it by failing to raise an untimely fashion and i think in this case that  qualify suppose suppose the cat theory is indeed unsettled yes so that means that there would be qualified immunity for the for myers and the mayor right well if you're swimming if the court were to say cats paul cannot apply well even if it's unsettled they have to violate clearly established law and and there's even you know i could get into more detail about what clearly established law is for let's assume for the present purposes that it is has to be at least based on what the fifth circuit says understand which seem so if it is not clearly established that you do albeit in the chain of command are not the decision maker who can retaliate if it's not clearly established that you can be liable under one thousand nine hundred three under those circumstances then they didn't be entitled to qualified immunity not on everything this and there's testimony to confirm that from mr pennypacker but so it's not just determination we're also dealing with a false arrest and those also have some claim some state local aims as well not there's also incompetency in our first amendment claim because it's part of the way the may retaliate the mayor is not retaliation is not limited to just terminations here and as well this mayor there's a question as judge higson brought up there's questions in the fact as to what happened in this case because under law he didn't have authority to terminate him but that's exactly what he did he'd cinema home said you're terminated you can seek a hearing on this on there if they knew they were not allowed to continue working on their so it's not it might have one week of back pay against the mayor right that's a real big reason to bring a lawsuit i know you had other reasons like well if that was the only thing it certainly would still be a claim and someone say well maybe i don't want to pursue that but that's up to find out if yes what well let me  let me ask you i mean to be honest with you i think as best i can see i i didn't see anything in your brief that had to do with retaliation beyond the first amendment and the blast sevenths of your paragraph on page ten that concludes your retaliation discussion so it is clear apple these were intending to make public complaints about the criminal activity and not intending to complain up the but that's a different that's a fourth amendment claim that's not a first amendment claim well it's is a first amendment claim because it is retaliation and i guess you could deal with a fourth amendment issue as well but that's right because he because you can't decide that that's a legal retaliation unless there was no probable cause well that's if you're dealing with the city i think you're doing you're you're you're calling this retaliation i'm right you got to have you can't just say they were suppose they did you know make these charges at home depot for their own benefit and father in law i'm sorry but that's not that's not that's disputed russ undisputed that is undisputed fact that the sixteen dollars was charged for the father in law yes ok undisputed fact and take your word for it i thought out on their own volition and just decided to do it on their own was their opinion of it it's in the record in their depositions to well i know what they can i know what they're saying right what they're saying right but its own disputed that money was used at mr meyers father wallace house at the city credit card yes but that's not and that's what we think is frankly so appalling about situation and that the board of supervisors would have this information and still side with the mayor frankly is these individuals were going to their supervisors father in law's house to work on his alice using city property and they report it to the board of supervisors maybe but we're not dealing with that for years later when you're playing it what are your clients doing one client is got a job making more money mr lewis mr pinney packer had a job at a golf course and i think he is having to look for other work on that there's an issue mister butler mentioned that there's an issue of well back wages are probably still on going for m settlement on side as well with the value of your claim if you were well mister paine packer has lost wages of about thirty five thousand i think mr lewis is lost wages are not much maybe five thousand dollars now and you always have emotional pain and suffering damages and attorneys fees but we're looking at economic damages we're looking at probably forty thousand dollars in a settlement being considered there has been a settlement conference before judge ball and it was not able to get resolved and that was before summary judgment so we don't know what would happen after that we have talked a little bit privately about it my journeys fees i guess would keep on going up but but my clients know it it doesn't assist them it doesn't make them any more money by this case being delayed in any fashion on there and the delay here doesn't make me purchased for it's very disputed about whether they were authorized or not again i don't think this court needs to reach these questions but by miers you mean right maher says no says we i've always been friends with these guys i ask them to go on their way also to work and cut the water off these guys go out there and fix the pole or the in laws try to pay the money they say no we don't want your money we don't want to muddy bathing go take pictures of themselves working out here and go and take and say it's not a liability theory the court assume sometimes what they do is cite title seven cases that's what sites g e and one other case that are both title seven cases but the point is  that they had no reason to believe that the mayor was at all involved in the a rift and and the individual police officer is not sued the rest only comes up in the reply brief as are there in the in the response brief of this case of this appeal it doesn't come up at all in the district court and we know that very would have to be that that in addition the mayor would have to have tainted the district the judge's decision to issue a warning this rest he would have to initiate perceive the arrest and there's no evidence of that in fact the plaintiffs both conceded that they had no evidence of that the mayor was deposed and he said i turned it down to the police officers and that was it i don't have any more involvement so that alone makes not even sure how we do jury instructions we know what some of the claims are but they are discrete legal issues that prevent many of these claims from from even being involved was a matter of well so it's very important i understand that the district court