reaches this court after a rule twelve b six motion to the part of the motion to dismiss was granted by the district court by those several presidents of the university of north dakota to whom he reported directly as the director of energy and environmental research center the e r c for some twenty thirty five to thirty seven appearing at the appellant's appendix pages twenty two twenty one and twenty two the actual evaluations of attachment for the complaint those  procedural due process rights the deprivation of dr braun was substantive due process rights and first amendment based retaliation a claim based on that within the context of these claims that i'd like to isolate on a sequence of events that i think i don't think i respectfully submit in a relate with one another and relate specifically to both the pre term anation due process claim the post terminations to process claim and dr gronow was substantive due process process in raymond this case is eight forty seven f sec f thirty five eighty five raymond versus board of regents of the university of minnesota eight forty seven f thirty five eighty five the pinpoint pages would be five eighty nine and five ninety and i don't know specifically the context in which the court was referring to the other case but the point being here i'd like to isolate on these facts number one dr groan wald is seated in his office may five two thousand and fourteen in the door come armed the university of north dakota police officers the score him off the premises same day there's a action taken by the university of north dakota president kelly defending kelly kelly kelly in this case in which kelly suspends or places doctor growing wild on  the ministry of leave on may fourteenth president kelly provides notice  proposed terminations on may twenty eighth or she will be on may twenty eighth dr kelly provides his written on may twenty eighth five days later dr grown will provides a response to the best ability that he can and i think one takes a look at the content and substance of the notice of intent to dismiss  wald was provided notice of the intent he's provided reasons why now you argue that those are sufficient reasons but for procedural due process he was given notice and they had an independent we saw a third person maybe you don't think he's independent review it and confirm the decision to terminate dr grant along what about that three terminations it violates due process and that's really important  the and i'll go straight to what was going on here and something dr graham well doesn't even find out about until june fourteenth or something like that what happens is they get grown walled out of the building they hire a that you have managed herman nation so that's not part of the pre no no that's before his terminations that occurred prior to his terminations what these so called independent hearing officer had access to this report so  just what was the date he was actually terminated may thirtieth two thousand and fourteen you said the rip consulting was june of two thousand and four you know i said he doesn't find out about it in tokyo ok this guy comes in this is a classic this is classic well it isn't it is it it isn't really related wealth i mean one is and one of course is that you didn't get due process and and the other is that you got due process by they lied to you now those are two different causes of action and i hope that my point is that's why these events in a relate they all over they relate to pre term a nation due process post germination due process and substantive  cart before the horse you can't make a decision to fire somebody and then go out and develop reasons to do it in that case pro social procedural due process in that case is by the way nine zero three f second five five seventy four it's in that case says you cannot make a decision and then try to justify after the fact what they did is they you've got a guy who's the head meritorious service here no negative  no negative evaluations and what they do is they send the constant get off get him out of the building interview six out of two hundred thirty four excuse me fourteen out of two hundred thirty five  employees six percent of the staff and then they prepare a report dr romo doesn't even know this is going on they had access to it and i've got five minutes for about what it's important for me to finish dr gronow wald doesn't know this is happening this is what's this is what's going on before the decision is made they got there on may fifth the coup and universally counsel had access to it on may fourteenth dr gronow all doesn't know the existence of this consultant report until june twenty power panics page fifty eight paragraph one eighteen of the complaint june twenty five two thousand and fourteen several weeks after his terminations an e mail copy of the report from a reporter employed by the grand forks herald now the dates on the report the this is all the sequences in the complaint pages fifty eight and fifty nine of our appendix so your time is running out  was he ever given a chance to rebut any of these allegations against him and did he pursue his administrative relief to the very end he wasn't he was not he was not given an opportunity to address the report which was the substantive basis for the president's decision and the so called hearing officers one page report hearing off the never talk to dr ro so the point being here  in raymond there's no requirement for exhaustion if you allege pre term anation due process violation and that is again a forty seven f thirty five eighty five right so we allege this right in our point being here you have a report that's the basis with what we've what we're doing here is we're trying to go out and find reasons why we took to this why we made the decision issued by the private consultant who was hired it's important to note that there was an anonymous report that got filed with the university of north dakota regarding dr graham ron's behavior and based upon that behavior an independent consultant was hired and did conduct a workplace investigation into the behavior that existed in the workplace that is the third basis listed in the notice of intent to terminate by president calley there were seven independent reasons that were given in the notice of terminations the third were the behavioral issues that were investigated by the consultant additionally it's important to note that the counsel for for  that his client was denied meaningful discovery and meaningful opportunity to find out the university's bases under north dakota open records law he did submit an open records request and received over six thousand pages of documents and many of the documents that were included in the six thousand pages were going to be exhibits at the administrative hearing that dr grunwald chose not to participate in there were no less than two pre hearing dr grunwald has a procedural due process claim and a substantive due process claim neither of which stand here first for the predetermination procedural due process claim there was plenty of process given even in the minimal standard that's required by the court dr grunwald was given a notice of intent to terminate with seven separate reasons stated twenty five part supporting those reasons additionally although he did not have the right to engage in formal discovery under the rules of civil procedure he did have the right to request records under north dakota open records law and did in fact received over six thousand pages  terminations pre term anation your honor the other issue that was alleged by counsel is the failure to provide the investigators report and that is the report by a third party investigator mary dobbins and  and there we have a failure by dr grunwald to participate and dr grunwald response for not participating as he didn't think it would be a fair process because the rules of civil procedure and the rules of evidence were not going to be followed it's true that under the state board of higher education policies there is no requirement to follow those rules strictly however the office of administrative hearings which is the entity that conducts these hearings have trained hearing officers most of whom do for at least informally follow those rules and again there was a week satisfied for dr grunwald to present his witnesses his testimony as evidence and he chose not to participate in that process so his failure to participate in th university of north dakota he had a right to continued employment the university the state board of higher education and president calley disagree the right to continue an employment is not something that has been held for contracted employees with state instead those those types of privileges are enjoyments typically only prefer to professors who have full tenure here we have to show that the president had irrational reasons or something that shocks the conscience in order for dr kelly or dr grunwald to make a claim of substantive due process and we certainly do not have that type of an allegation here in dad we have dr grunwald disagreeing and i would you're right your honor because the court found that he didn't need to go there given he found a failing on it and another prong and so i think that that the issue that dr gronow wild is alleging is that he disagrees with the reasons that were provided by president cali and he would vehemently disagree with the reasons provided by president cali that is not enough to state a substantive due process claim and for those reasons we believe that that claim fails as a matter of law additionally we have  qualified immunity on behalf of president cali for the claims of started against him and his individual capacity and that would apply to all of the claims of circuit against the former president for dr grunwald to succeed he has to show that the issues that he was terminated for involve him speaking as a private citizen and when dr grunwald is using his university sponsored e mail now to e mail a member of the state board of higher education we think that as a matter of law we in are there were occasions where dr kelly and dr grunwald had difficulty communicating they did have regular meetings and they had my understanding it's monthly meetings and there was a breakdown in communication where a third and that response by mr macgregor was in fact given to dr grunwald it was yes it was your honor and if we go back to the issue of qualified immunity the question of do we have a justification for the president to be taking the action that he did and was there a comment by dr grunwald that in some way impacted him speaking as a private citizen and the university and and former provision you're under there are there are three prongs the first is is there a right to continued employment and the university the state part of higher education and president kelly believe that there is not in order for there to be that substantive right to employment it has to be more than just a contract of employment it has to be something that would be akin to a professor having tenure there was no such property right here in employment by d as i understand dr grunwald acknowledge just glad he could have been terminated for no reason they had been given a year's pay which may have been the smart thing to do in this case but that's a whole side issue but  so the individual can be required to work during that notice period or not work during that notice period and no there are no cases that i'm aware of that have held that that one year of pay is sufficient to create that property interest in employment the cases that i'm familiar with that have how but there is in fact a contracted right to continued employment are where we have tenured professors where they basically have lifetime employment there is truly a truly bad act that would justify terminations of their employment i just only under the substantive due process reason we have to have some irrational reason that shocks the conscience that was provided by president cali for the termination in the record is in fact that terminations notice of intent to terminate with the seven grounds and the twenty five parts to those grounds and nothing in those stated reasons has ever been alleged by dr grunwald to be irrational or shocking the conscience certainly dr grunwald disagrees with many of those reasons and i would readily submit that he vehemently disagrees with those reasons but again we have to have something that's irrational that has no basis in decisions because i think that there has been a little bit of a tightening of the line and loosening of the line but the standard that has remained throughout is that it must allege that the government action was sufficiently outrageous or truly irrational and that a something more than arbitrary capricious were in violation of state law and that is from christianson versus west branch community school district which is six seventy four fed third nine twenty seven and i believe i'd like to make just noted in our brief main brief page nineteen actually footnote two north dakota supreme court's held that regulations adopted by the state board of higher education are part of its as part of its policy manual a part of the contract between the institution the employee and we cite home versus state and ellison versus n d s you for that proposition i need to make clear now that it is completely untrue that page forty one of our appendix and its correspondence from dr groan while dated june eighteenth two thousand and fourteen he did not have access to any documents prior to his terminations did not have access to this big report the threat for inst on page two hundred five of our appendix that is  relation to the hearing he chose versus he this is post terminations this is post terminations hearing hearing there was no hearing preet before terminations but your post terminations process covers that your honor first of all the ultimate decision maker after in the post terminations process was kelly himself that's acknowledged the district court is  right and the administrative correct but at that time iran or the first of all the administrative hearing the officer makes whatever her decision is and it goes back to kelly it's closed circuit circuit television that's one of the biggest problems that's the problem of the district court's decision everyone acknowledges that the ultimate decision maker under the regulations was president kelly he made the initial decision he commission it absolutely did that's the problem that i need to i need to make this we may make this one point because it's pivotal ok president kelly was the one who would have made the ultimate decision after he'd already done all these things pretty prior to that point and pre term anation you have a report that's the basis for paragraph three of kelly's letter to think that he never even see this all that's not a due process violation and one of addressed the argument that your client waived his post post determination percentage of the due process right to hearing toast terminations due process and what are you argue that the structure if it's not mere few telly it's the structure of the process where you have waived it because it would have been ineffectual he waived it because it would have been ineffectual and it would have been fundamentally unfair to have the original decision maker go don't make the ultimate decision we don't know because you never availed himself of that hearing so were we have to accept your obligation that it would have been so unfair that it would have been a mockery to even proceed it would have been a mockery given the cons given the fact that the president takes all of these actions he then would be after the problem after the hearing would be the ultimate decision maker and so under and one one final state in a brief pre hearing on september fourteenth september third two thousand and fourteen the attorneys for the us should seek written approval from the chancellor or the state board of higher education to enter into a stipulated agreement that the final decision this matter will be made either by the chancellor or by the majority of the state board of higher education that never happened had that happened we would have gone through with a hearing but to have the same decision maker you've made your