qualified immunity that we have certain for our clients and recall of the six motion in two thousand and twelve this court had reversed an almost identical order by judge hoyt in a qualified immunity case where the court basically said we'll deal with this on summary judgment after y'all do some discovery we believe that that is on the basis of that bucket versus the block case out of galveston texas which we cited shifting our task and do the same thing we did though in that case correct what we did in that case who is we man and so you have limited discovery after detroit figures out what the limits ought to be you're asking us going room correct i am asking you to go ahead a rule recognizing obviously that the other alternative is one possible outcome here we believe that on the rest of our brief where we talk about the merits of qualified immunity we believe that this court can appropriately rule on the qualified immunity on the pleadings or prior panel said not right and that's why isn't that law the why how we could get different procedural posture would concede that is not a different procedural posture and so that may be the only remedy it appears it appears to me and i get that ruling and we see her we'll i'm not as familiar with what was going on in the back of the case but it looked to us quite carefully i can't figure out what discovery if we followed that procedure and we sent it back for some appropriate amount of discovery prior to the ruling on the qualified immunity motion we can't even figure out what that would look like but i'm willing to give in this the point of my contention a believe that the fairchild plays when you shift into that and you look at the reality that city attorneys city managers mayors are applying this case that looks like it's directly on point that has a separate procedure for deciding employee performance in this conduct issues where you have something that's on the agenda as you did in this case and the thing that's on the agenda is not what miss johnson wanted to talk about she wants to talk about a different person and she wants to criticize that person and there's a separate process for that but the problem here is that is they a way is that they didn't of follow that policy and  did not apply that policy to formally that in the past they have allowed people to put on the agenda and speak negatively about employees contravene that policy so i thought what the discovery was aimed at was were the instances where the policy was not followed and how many i don't believe that that meets the qualified immunity test because the test of course your honor it is whether or not only the plainly incompetent people would believe taste that what we're doing is consistent and that may be the answer on the merits that this court may decide on the merits as against the city with respect to the injunctive relief or the other relief saw it that there's a constitutional violation here but there is no case with reasonably analogous facts that tells my clients you can't tell somebody it's not on the agenda you can talk about it you can't tell somebody we have a different process where we investigate and inquire into employ misconduct you have to use that when they show up they say well i want to say something nice about this employee and i want to go off on a was that briefed in the park in the  believe that was tim's it wasn't i didn't ask for qualified immunity and oh absolutely they asked for both and somebody didn't say what's the clearly established law i don't think mocking versus leblanc it was a police context the court did say that there was absolutely no pleading against steve them along with that reached him but nevertheless the court sent it back to judge what to make that determination about what if any discovery would be dispositive it did not grant the qualified immunity as long but it did observe that there was no cause of action pleaded against him on the face of the complaint and so that's why we believe that it is appropriate on the face of this record i don't know of a set of facts including the one that you're asking about about these prior cases because there is no case that tells reasonable public officials this is a clear constitutional violation if two years ago a police officer was allowed to criticize somebody in the police department for an event that means all the bets are off the rules don't apply in them or you get to come in here and talk you know critically about everybody even though that's not the normal process there's no case th says that that's why we believe qualified immunity on this record should be granted by this court and in the defeated we have the minutes from that previous meeting the minutes are attached they have i'm sorry the minutes from the police officers criticizing of the modern arm we do know we have their allegation in the complaint we have the minutes from the two meetings that involve this johnson would they be subject to judicial notice we believe that they are and we believe this that takes it out of their argument for the rule that that converts this into  in their pleadings this will say this that i think that in this context the allegations are that we didn't have an adequate policy i think they're trying to make a distinction from the which had a very complex set of policies probably probably gated by the texas educational agency about how school districts do this but the analogy that for a child is very very close and they themselves plead that she was told that the city managers job to evaluate employee conduct in misconduct and it's a separate process that's a direct analogy to a fair shot and all of these kinds of rules have to apply in all state and local legislat bodies and so realistically if somebody goes to a takes a senate committee or the railroad commission or something else going to be entitled to make some positive comment about someone and then claim that their viewpoint discrimination because that's the only thing that they attempt to say is a clearly established right viewpoint discrimination so fairchild would not be any different if miss fairchild had come to the podium wanting to complain as her primary message about  lanier the teacher she was working with and for and say well she did this and this and this will and therefore through our own conduct open up the forum and say now i'm going to talk about the bad things that caused me to lose my job we don't think that changes fairchild and we think that's twenty six motion pending discoveries of polk appropriate st he says it may be a meritorious motion but it's premature discovery is appropriate followed by a motion for summary judgment any remaining that parties pronunciation is is that put it back in a twelve b six situation is if you have limited discovery that mean we're a guess that means we're on our summary judgment standard at that stage or you would be in district court a believe a believe that it would be under a summary judgment standard if the courts analysis of what's an open question on the pleadings if there is something here that i have to determine in order to see whether or not qualified immunity would apply presumably under fairchild  using that hypothetically what is it in fairchild that has to be determined here i guess what i'm asking is it seems to me that he is effectively denying the twenty six by saying that you must have some at least limited discovery and after limit his coverage depending what i do at that stage either district judge perhaps will have more discovery but the twenty six has been denied i believe that that would be analytically correct design understand what the law is if i don't have enough information to plead a good case under close the six disk i get to have my discovery so that i can then satisfy my pleading requirement or twenty six usually don't have this limited discovery angle as part of that but thank you counsel  what about is there any other aspect of the cause of action that you want to address for damon james at this point judge i believe that the qualified immunity issues is the only issue before the court i would say that as to  name defendant stary who appears only to be sued under hipaa that it's problematic about the qualified immunity piece because there is no private cause of action under hipaa and so we claim that  cause of action since is directly related to everything that she wanted to talk about in the st amendment is inextricably linked to that or the case law that says the court has jurisdiction on a qualified immunity appeal with respect to other causes of action that are extra could be argued on your breach of the plaintiffs don't show any legal wrong we do we argue on the merits that under fairchild that we actually complied and did not violate the st amendment and that it is appropriate in a limited public forum for us to say you have to go to the city manager st and we reached out on appeal on this appeal i don't believe so because it's an interlocutory order on qualified immunity for you i think that would have to be on the summary judgment will then go into how the reality is there was no policy in the situation because it was not written and under clearly established law and he sort of viewpoint discrimination must be carefully guarded again and so there must be a written policy if that's the missile there is a question asked if discovery is appropriate on remand then is this still in a twelve b six posture and i would answer yes if you re ma'am this case it would still be in a topi six posture and the reason why in my response to their motion to dismiss on page one hundred and twenty seven of the record i asked for an opportunity to department and police department were allowed to essentially disrupt a meeting and complain about each other i would replay to reflect to the facts of that particular instance from twenty to you would you need to repeat it are those are those minutes on the internet i don't believe that they are on the internet but they would be subject to judicial notices public records or government records that is the sticky part i think that that would be yes while at the same time i don't think that what was attached to the defendants motion to can introduce i'm trying to remember all of the exhibits if they attach the agenda items and that would be appropriate and no complaint there they also attach the minutes and there is some distortion of the representation of what happened in those meetings so for example to judge southwick question if we sent it back under baccy for this limited discovery idea so that hypothetically your client could put the meeting minutes from this firefighter police department dispute into the record would that be the extent of the discovery or because i would imagine anything more than that would be not a twenty six dollars posturing more i mean we're going to positions and written discovery in our phase all rest of it i would soon that that would transport this into a different posture pursuant to this court's cases and he knew versus roberts as well as to vs playing now there is an ability to get discovery on motivation when it comes to the point discrimination whether or not the official was motivated by a discriminatory interest rather than some sort of legitimate reason for differentiating between speech so yes i think that discovery would be appropriate on that issue based on those two cases but it would no longer be a question so if i take it from that answer that you believe the judge denied the toby six motion i think that there are two ways to read his order one is to read it as sustaining my objections to the attachments that the defendants attached to their mission and treating it as if it were a motion for summary judgment by saying we need discovery before there's a motion for summary judgment or you can read it as you need discovery cannot grant qualified immunity at this point we're going to have discovered but that is the denial of the six motion and hence a denial of the government officials immunity from suit which is what qualified immunity is supposed to be in so  i take it from that answer that it is it is a denial of the qualified immunity motion under this court's rulings yes i think that's correct i think now in terms of the question was asked has it been established in this case by any any prior panel that this is viewpoint discrimination in this particular case with chrissy johnson no your honor what's your best case because you have to show a constitutional violation that what's your best case that when i open government and he says we will allow criticism we want a lot of criticism ploys because that's an employee matter now shouldn't be out that a reasonable government official in robert's position the official would have known that would it be in permissible under the st amendment to prevent heaney from speaking and to eject him from the meeting based on the message he was conveying we agree and p j go to if position would know that it violates the st amendment to prevent someone from speaking to object him from a meeting based on the message he was coming and what was his message the message and chini he was arguing over the campaign finance contributions to a city council but that's a different issue than the matter i mean it seems to me there's a substantial body of law that says you could have closed meetings about employee matters and complaints about employe honor if you look at fairchild though fairchild herself julie fairchild was permitted in that liberty independent school district meeting to complain about another teacher she was allowed to complain about the other teacher and that is on i believe page fifty six i believe what she could not do what she was not permitted to do pursuant to their policy was a name the other active employed teacher let me or they have a different policy but that doesn't mean the st amendment compels the different policy i think it does and the reason i think it does is because with viewpoint discrimination you cannot discriminate based on someone's opinion i like this employee i don't like this employee that someone's opinion that's by definition someone's opinion or making a qualified isn't about the quality of the individual or the thing so i think that's part of her viewpoint discrimination well if the policy would prohibit a complaint that said i really like this person and i think that you should promote them it would also prohibit a policy that said i don't like this person you should fire them that's not the point discrimination i agree but that is not what we have with chrissy johnson and the reason it's not what we had with her at the may th meeting in two hundred and eighteen is stephen starry had been allowed to resign in the determination in january of twenty eight because he was no longer an active employee the texas open meetings act section opposing counsel would say would be the reason why you would exclude that from a public meeting so there would be no reasonable basis related to the forum why you would exclude that opinion when you're allowing the opinion a positive opinion when you're allowing someone to praise the individuals in the exact same posture a story for the exact same event and if you look at pages twenty five to twenty six where chris a johnson statement and i'm out of time thank your hon counsel i'd like to just quickly start by i think finishing what my co counsel is about to say which is that the statement issued in this case actually both viewpoints and she is allowed to say one of those he points and not about say the other viewpoints and so we completely agree with you judge about your categorization of what would be a topic and what would be a viewpoint and that's exactly what is at issue here  also want to point out that part of our facial challenge to the policies around written policies is based on unbridled discretion on the part of the city manager on the part of city council in their additions to their excuse me motion to dismiss in their dundon they included a policy that was distributed and made public only after the events in this case and so at the time at the time that mr johnson originally tried to come and speak before the city council  complain about the actions of a city employee there was no official policy at all and so the government code that we've been talking about that says a city council can choose to have complaints taken in outside of an open meeting  s not made the policy yet they hadn't taken advantage of that policy and so when they were denying this johnson's right to complain about this employee at the outset before she even got to the point where she was adding it to the additional praise that she was giving at the city a blatant violation of st amendment rights to have unbridled discretion when you're deciding who can and cannot express their views it says that even if you're given a reason that's still not good enough because the basic fact that a city official can decide whether or not to let somebody speak without any established protocols is by itself without anything more of a violation of the st amendment and we don't believe that that that any qualified immunity defense would apply to that because it's an obvious st amendment right right whether or not you get to express yourself in front of city council on and also it wouldn't be reasonable for any city official any city official at all to think that it would be ok to discriminate without any policy deciding who can speak agree with you that if there was evidence in the pleadings that there was a longstanding custom that they do it this way that that could be considered but on the face of the complaint it's actually the opposite judge it's the opposite because they are letting people talk about employee betters i mean there is no there is no evidence even now even judge in the policy that they have released in two thousand and nineteen it still does not say that unless you meet these exceptions we will definitely let you express yourself and we will definitely let you talk to city council which is exemplified by the fact that the defense in this case is not even citing one of the policies that's in their newly published manual right there saying well we let you talk about employees but only if they're not direct report to police and there's nothing about direct report employees either in the history in any of the facts have been pleaded by of either party or even in the now published twenty one thousand policies that have been released by the city council and so while i agree with you judge that a longstanding widely accepted everybody knows policy that has been abide by by a government entity would be similar to having established policy or printed publicly available policy there is not even that in this case pleadings that they wrote make it clear that they were told by the city manager that you can't complain about employees because that's up to me you can complain about made because that's a city council on it is absolutely incorrect that there's an obvious  amendment right to go to any city council take the podium and complain about employees that's only true if they have created a public forum to do that many cities have a public comment session and if they choose to do that and citizens can come up and talk about what they want to that's a problem in fairchild they had a situation that did in fact a while miss fairchild to come to the podium and get to the point that she said i think the reason i got fired was my co employ that i was working for at that point under their policy they stopped her and said that can't proceed further it goes beyond the limited public forum as defined these pleadings show that the limited public forum in yoakum was defined by the agenda and in this case the agenda was to talk about somebody else and to commend them which she attempted to explain and by complaining about a different employee at the same event we don't believe that that violates the clearly established parameters of fair child my clients were not plainly incompetent in believing when they read that like other city attorneys employees mayors city managers around the state we are entitled  things on the agenda and tell people that they can't talk about them if they do any verses roberts is not a political book because haiti was the presiding officer roberts of regret move across the river who said you can't talk about this you're not a lawyer only our city attorney can tell us what the answer is totally different that was about who could talk not about what topic they could talk about or viewpoint discrimination we don't know what do you do with the fact that stary was no longer an employee at the last meeting that actually my last point i think that once scary is no longer an employee she has no public forum the city council doesn't have to hear anybody's comments about stary he doesn't work there anymore and so they say that since he's no longer an employee that means it takes it out of this rule that we don't we don't let you complain about employees it goes to the city manager that's not a topic that the city council has any agenda for well it but it does take away from the proposition like the city councils justification for the limitation on the topic is simply matters that's for the in the city managers province we're not going to do that in a public meeting that makes some sense but once he's no longer an employee any different than you know the conditions in the city park or you know anything else that they just want to talk about that is outside the ambit of the rule that you've articulated and if the city had a general public comment where you can come to the podium and talk about whatever you want i think that would be the rule amendment if a city decides you can come up to the podium and talk about anything then this would be a different case what was the use agenda item that she would legitimately allowed to address the meeting last night if you want to become it and she wanted to come in the department in the chief or above and beyond the call of duty on the response to her where she was taken to hospital so i did not mention employees terry did not mention any criticism and she if she pleads that she was told by the city manager she could not talk about criticisms of those employees and what's the that's the problem why would the city not allow her to criticize my former employee instead she could said we want to change the policy about how you do x y and z in these types of columns because it falls within the criticism of the public employee your lesson is going on and he was gone on the stand and like it's like that's it's just saying i'm not time any specific employee but let me tell you what happened to me in this wasted time and you should let this happen or stand going forward why is it that it would sit amid discussion it was not on the postage and on it tell her i told her she couldn't put it on their break and they're entitled to tell or we're not going to let you come and talk to the city council it's not an action item for them so we're not putting it on the agenda and there is no st amendment requirement that a public body put your issue on for consideration i can't go to the take the senate is say i want to talk about what i don't walk about them or have that well we're not here for that today we're here on this bill the city can