one question is do we have jurisdiction at as i understand it if there is an issue of fact that would affect the qualified immunity under current circuit law we do not have jurisdiction over the enter lockett story appeal and what i'm wondering is if we conclude that that is so does that mean we're all done and we don't reach the question of whether reasonable official would have known that dr embry would or would not have known that dr embry had a property interest in its employment no your hon the position is that those allegations still do not add up to a constitutionally protected interest or if they do if it was not clearly established the time this court can certainly proceed to decide the issue of qualified immunity sort of and at the period of one thousand nine hundred four and what we need to look at is what were the terms and conditions of his appointment in one thousand nine hundred ninety eight in one thousand nine hundred nine and this is what happened he lost his funding dr king arrived at san francisco general they sat down and they talked are offering to allow you a six month sabbatical in order to provide for prepare new proposals to try and obtain funding we will support you with department funds for the next more than eighteen months through december thirty first one thousand nine hundred nine and but you it's incumbent upon you to obtain funding that letter was then supplemented by the letter in september one thousand nine hundred eighty eight which specifically said this is to confirm the terms of your appointments in terms of we ask you something about this did anyone tell him all bets are off on that moral code one of ten your stuff that we told you four years ago or six years ago that question really is dr king arrived and he was not aware of any such statement that was made approximately fifteen allegedly fifteen years earlier to dr emery dr emory never once mentioned any such statement being made to him all the time that he was talking to dr king so when dr king was talking  agree to for your employment let me let me tell you what's bothering me about it ok my wife's a professor add i'm real familiar with professors she doesn't have moral equivalent to ten years she just says ordinary tenure  they're always pressuring professors to raise money to get funding and some tenured professors do it and they raise a lot of money and some for the new professors to say you know i don't care about it i don't want to be an a of acolytes i just want to do my research and teach my classes and they don't get funding and they get pressured all the time and they just ask more or less politely tell the administrators to get lost i'm wondering whether  in this case the pressure for farming was clear enough so that it was a condition of the driver whether it was just the kind of pressure where you can tell him well that's what you would like me to do and this is what i would like to do you know absolutely you funding it is absolutely essential that they obtain funds that has been specified in the funding for i just want to make sure i understand yes my spouse is a professor too but what what judge  about i thought was was funding for research and for research assistants and stuff like that not not for funding of one's own position this in residence as i understand it meant that you had to get the funding for your own salary you were absolutely correct your honor because the state simply does not have the funds to pay for these people it's like being you know lawyer you have to basically go out and get your clients in residence professors needs to go to operate as to what the terms and conditions are he to this day cannot define exactly what it is but you know what he said in his complaint his complaint alleges that he had the equivalent of ten year he did not have the you know what do you do you understand that he wants to see what  and that is that excerpt of record two forty nine and then for ost sixteen it says right in there it specifies this funding that the department is going to provide to him and then in the  base salary shall come from outside funds and in this case though the funding condition was so severe that in the department of medicine dr king required that seventy five percent of it come from outside funding it absolutely critical to understand that this money does not exist to fund these positions and any way shape or form and less the professors obtain it from outside funds and that's what's so important about in that eighty eight eighty nine year they exactly what the terms are the six month paid leave for the new grants the funding from department funds because he didn't have any outside funds until december thirty first one nine hundred ninety nine the absolute necessity for him to get outside funding by december thirty first that's at two forty nine and then you need to try to obtain funds to offset the full cost of your salary for the six months of your leave and then s they're going to cover that and even if he doesn't get them they're still going to cover it but then down on page two fifty he's told failure to achieve adequate support for your scale three base salary will result in terminations of your appointment within the department of medicine effective january one two thousand and then that is followed up by the letter an excerpt a record for ost six which confirms the terms of his appointment that summarizes what is in that letter and it also specifically says that this appointment is pursuant to academic personal manual part two seventy it is explicit dr embry signed on the dotted line that that was what was going to govern the terms and conditions of this appointment and also told me exactly where i could get a copy including on long lines so there was no excuse for him not reading it and says as it's always said that these positions require outside funding they do not have tenure they carry no security of employment and furthermore that they in appointment for a specified term as this was expires if i read the record right and i'm not sure i did i want you to educate me if i'm confused that he wanted to meet with people that had authority and to get rid of them  approached the deadline and they would not meet with him and did not meet with him until he was already out and then they met with him when it was all over and he can hear is that right no you don't have that right here's the chronology ok december i believe it was twenty second like three days before christmas christmas holidays there's not too many people around including dr goleman and already left for the holidays for the very first time dr embry writes a letter to  king and says oh is there any way we can extend my time because i don't have funding yet and by the way dr smith told me fifteen years ago i had the moral equivalent of ten year no elaboration on what that meant i'd really like to meet with you face to face got right back to him and said dr goldman isn't here well sort of been meeting as soon as we can and he told campus council within two days after christmas campus council was already in communication with dr embry slow you're there was there was no ignoring the situation it's just that when somebody waits for two years before ever saying anything and you do it the minute you know two days before christmas and the s meet several days after christmas there was responsiveness thank you i think we should hear from you're ok very we'll give you thirty seconds to respond on rebuttal if you feel you really need it decision as to the last issue about the sequence of events prior to the terminations if you look on my point is she right we accept the facts in the light most favorable to you oh she's right on that right but the problem is once she to me anything in terms of tenure it means moral equivalence how do you get legal tenure out of moral equivalence if you look at the record of the record does define it if you look at the deposition testimony in the testimony of dr slazenger margolis and smith promised they could have gone to the sworn testimony and what they would have found excuse me according to dr slazenger who was the assistant head of the apartment of medicine at the time that all of these promises were made it has quote the same ri privileges as a laddering faculty period and quote i still don't see where that gets you because it appears to me from the written record in this case that everything was dependent on your client's being able to secure funding to pay his salary and that failed embry or any of the people that they hired that this moral a quiver quit alyse was contingent upon funding you were told you were you are if you have tenure and this is not a do you have to at that time was the understanding th people in this track had to secure funding for their positions it was some did some didn't they had the university had latitude but this is the point you're of that's a murky answer and i don't understand it what track was your client on there was technically he was not on a what is technically mean that i mean i've read time i hear a word like that it makes me makes my teeth chatter because it's a way of trying to avoid the truth what track was your client on he was on eight eight there is no they would treat him as if not i don't care about the promise right now i'm asking you what kind of an understanding was there outside of this promise that you're saying that what he would be treated as if he had tenure ok never mind what you just explained to me what your client w and tenure committee that the university has that hears grievances or decisions by the university to lead but all he wants is a hearing before the university not monetary damages so he wants the back pay which is  tenure committee subsequent to the decision what's the hearing about what do you do with the letter first of all it was they would determine whether or not there were grounds for the terminations in other words with a sufficient cause exist to terminate dr and vary factual dispute about whether the raise money that would cover salary during that during a couple year period no there is not but he did not raise the money he did not but what would have happened was if he had given him the hearing he would have gotten the funding because the funding but the point that would be made your honor is even if the committee ultimately would have decided to terminate him because of the finding that doesn't mean that they didn't have to give them the hearing and that's the point that that's the point we met we're in the from the other the other side is we don't even believe the issue of funding was the reason why he was terminated so there is a legitimate factual dispute here and so what were the reasons why they let him go if you go back to the margarette in letter which we that was the real reason but the good reason they gave was your deal is if you're not funded you're out and you're not funded goodbye why when that's so be ok because they still have to get me here in your  question and is it also true that he was he did not communicate the moral equivalent of ten years statement until the eleventh hour i don't believe this eleventh hour but yes you're one of the twenty third is that i would disagree with the court's characterization however i don't for your honor if i'm if i might just finish answer the question if you do find that there was qualified immunity that still means that we have the right to go against the university on the issue of an injective of injunctive relief so those are two issues but we believe that the university the allison case is they have the right to a hearing it doesn't say you have a right to hearing it lest we think you're going to lose the hearing and i think that's the point ultimately where this case comes down to just because they thought d i want to clarify the record on one point i got just this issue about this funding it is not correct that this funding was in the bank just waiting to get dispersed and we talk about that on pages thirteen and