please next case of the morning is numbered seventeen one one two three four patel versus texas tech university mr hudson the very first issue your honor that a lot of the moment immunity bars the breach of contract claim by conceding that that's my understanding from what was filed last night with the fifth circuit so the only other issue you have is if you don't like the way the judge handled qualified immunity right that's correct oh well let me make a long story short here this is you know this is a very experienced judge he knows the ropes on qualified immunity all you're asking us to do is i take it is admonish him that yes you have the right to claim qualified immunity on the pleadings which point your clients will probably lose because he will say underline bolos they have the right to conduct discovery what else you want to say while we look for this court to say is that the court actually has to reach the question of qualified immunity on the pleading well but you didn't even argue the qualified immunity is justified on the pleadings of this case well actually we are we raised qualified immunity at the pleading stage understand that but you did not brief it on appeal that's right your honor because this court has said repeatedly that it does not decide in the first instance qualified pleading there was no qualified immunity analysis in the district court and because there was no district court analysis of qualified immunity it then made little sense to bring for the first time the qualified immunity you know i'm not i'm not sure that the factual posture from what i remember i did not go back should've but i'm not sure that the factual posture of those cases is precisely analogous but anyway why don't you tell us specifically how you would draft the last paragraph of our opinion and if it came out the way you wanted what are you asking us to say to the district courts specifically what i'm asking for the fifth circuit to decide is that the court should have conducted the qualified immunity analysis at  a case that both states a cause of action and overcomes qualified immunity with equal specificity that did not happen in this case well let me why didn't you move for reconsideration with the district court and say judge don't you mean the discovery should be limited to qualified immunity why couldn't you have done that my my colleague i should did move for reconsideration of the qualified immunity issue are and after that happened the court still denied that motion and then in denying the motion to stay proceedings below as to the official capacity piece clarified in his order to leave its record on appeal at four zero one three to clarify that he did not believe that qualified immunity was proper short of summary judgment motion because i this is a normal procedure and the problem that we have here is we have four individual capacity defendants who are not going to be drawn into discovery in this case if this court does not send it back down for the court actually addressed oh we'll send it all right we'll send it back down already but i just have the feeling that i mean you know we can we can issue the order that i described at the beginning but it seems it seems it will be hard to do that without adopting an overbearing tone understood john but what else do you have to argue to this what i would argue to this court is that because qualified immunity was not addressed and there was actually scheduling order that was issued in this case  that opened up full discovery as of the saints maybe even if the court would find that while we need a little discovery the court is required to at least limited to qualified immunity issues and not just say it's open season discovery now that's  didn't happen the district court issued a scheduling order record on appeal at three twenty seven the court then issued an order staying discovery record on appeal three thirty the court then denied the motion to dismiss and pursuant to the order that the court issued without further action by the district court discovery was now open full blown pursuant to the sky burial schedule or has it occurred discovery well at a minimum we are we've already had an injunction hearing so to a certain extent it has occurred we've already had to have testimony from at least one of the individually name official passive piece is still ongoing well there's nothing wrong with that while actually are you know that's not a brief in your opinion but i think the supreme court said nash crossed the ball that it's it's of no consolation to say the individual has to no i didn't recall that at all but my point is that because of that you probably have a stronger case for immunity on remand because the having had this testimony come out at the injunction hearing all you have to do is refer to true overcome qualified immunity and if they do then you can allow limited discovery directed to the qualified immunity if they don't you've got to dismiss and that's what you're asking us to say that's precise i can ask in the courts is there anything else we need to know the qualified immunity piece i would add on the eleventh amendment piece of this case it's not clear to me that the letter that was filed in the full circuit last night actually dismisses the breach of contract claim to the extent that it does if this court still feels the need to rule i would district court's order denying the motion to state discovery in fact in that order he explains his rationale more so on the problem but he does in the fortunately my bench if the complaint on its face overcomes the defense of qualified immunity so while his approach might be a logical lovely way to do things it in the law so i mean i appreciate that he's a seasoned judge and all that but  season judges make mistakes too in this just strikes me as you don't get to decide a procedure that's already been decided i certainly believe that this judge has everything in front of him to make a decision on the merits of this issue in our favor you know unfortunately he doesn't do that but i also don't think that it's a burden on the end and system blew file an answer and file a motion for summary judgment as joey pointed out there has been testimony in this case there is there is evidence that's been out there for more than six months but once you follow a motion for summary judgment you say there's no evidence then you say you or you should say well i need discovery on a deposed john and jane and mary and then you're in this that the defensive qualified immunity is designed to avoid so that's why we say no you have to decide this at the motion to dismiss and if you decide there is a piece of something that needs discovery then you the district court need to put some guidelines on that some parameters around that instead of the usual somewhat unrestrained discovery process and i understand it better how is usually done your honor as i read baccy it also says the before the court orders tailored discovery concerning  immunity it has to first find that the plaintiff pleaded sufficient facts to overcome a qualified immunity defense and the court did not make that ruling right unlike what the final case in the morning is number seventeen three zero seven eight three