first case number eighteen one three two seven turner wait just a moment before we get started all right mr robinson whenever you're ready thirty plus year career come to an abrupt halt on august twenty seventh two thousand and fifteen when the credit union administration the a c u and conserve the credit union and shortly there after the administrator of the governor and other state officials to have improper and unwarranted regulatory sanctions imposed against mr cruz in alabama one through the i c u way leading ultimately to his terminations on august twenty fifth statute to challenge the decision to conserve and i think it's important not conflate the two decisions that were made on august twenty seventh two thousand and fifteen that was one decision made to conserve the credit union that is the decision that all allows terminated individuals to challenge the decision to conserve yes that's exactly it said decision which was a decision by sarah moore not the board of the i c u a decision by serum or to terminate mr cruise employment agreement there is no provision for you of that decision under alabama law other than through the section nine hundred eighty three case that we're bringing here but then the not the commission make a recommendation where the guard to the one credit union and then all of the powers of the conservative or in the actual order of conservatorship all the powers of the conservatory were delegated to stare more alone so every decision made there after it was her decision now there's also i don't want to be left on corrected that and in fact i think it's important as is something the district court is a fundamental error in the district court's opinion that we have it's way throughout the opinion is the district court recognized and acknowledged that we have shown improper influence and improper direction lead ministration instead know that administration was clean look at the confidential it in them to the order of conservatorship end of story well there's problems with that bright line of demarcation in the first one is the district court simply ignored from west texas i ca these are mounds to me mountains of circumstantial evidence that we have put before the court and it and it kind of reminds me of something my grandfather used to say when i was growing up in a small town in texas and when he saw something that looked a little shady he would say you don't have to see the skunk to know it's there and fortunately for mr crewe that's exactly that's right in line with the law on the evidence here he stand on summary judgment for a plaintiff to show a conspiracy just like the skunk there's many ways a conspiracy can reveal itself and circumstantial evidence is enough but don't you have to get more in there so i mean so it without more without links here with this is thus the says the lawsuit that you brought against these two nongovernmental lawyers and we have the allegations of at the very least being the governor's office and what not but if you can bring in more the ultimate decision maker how do you get anywhere in this lawsuit and that is appoint a district court made there's a problem with that for one particular reason and the court basically kind of grafted over its decision in the moore case and said for the same reasons i granted summary judgment for don't have to show that mrs moore was part of the conspiracy we can show that she was an instrumentality of the conspiracy and if the decision to terminate mr karoubi was the result of the conspiracy that we have established between the a pelleas and the office of the governor that's enough and it doesn't matter if mrs moore even knew a conspiracy existed it doesn't matter if she knew the apple e's were in on the conspiracy well he has shown is she was improperly influenced and directed by the office of the governor at a time when the apple even the office of the governor were secretly conspiring the timeline that the evidence paints here is very compelling and it was completely disregarded and thrown out by the district court you start as i said with the morgan administration which continuum of dealings between the apple e's and the office of the governor continuing through the more administration the office of the governor and the apple these two people the district court agreed with us that they had an agreement to  mr cruz and alabama one you had the circumstances of mrs moore's appointment at the time she was appointed as the interim period between larry morgan being the administrator and sarah moore there was an interim administrator he's here in the courtroom today it was a  lawyer more a long time employee of the agency who was it was important as the interim administrator and during his thirty be sick when he was a corporate rep during his thirty six deposition he conceded he wanted to be the administrator he sent governor bentley a letter saying thank you for this interim appointment please make me the administrator he was passed up and what was he passed up for david burns former colleague and good friend sarah moore no experience but not surely you understand how executive appointments work they do you're not you're describing the course of executive appointments and on the state level there are any number of career officials who would like to become the political appointee and they go to you and nothing you have described as actionable will say to itself circumstantial evidence off that often isn't but we've we're compiling a pile of circumstantial evidence but it doesn't the involvement of more and the criticism that's leveled at more because she was an administrator that your client would have preferred doesn't it all rest upon the we don't like the appointment process and who was picked so it doesn't we didn't know anything about mrs moore when she was appointed but we do know now based on discovery is that at the time she interviewed for the appointment governor but this is a time when there were no regulatory sanctions pending against alabama one in mr cruise and larry morgan had testified under oath there was no reason to even have any more regulatory inquiry alabama one had saw that danny butler problems and it was smooth sailing did you go over bentley told mrs more alabama one is a big problem that you're going to have to take care of and within weeks of her taking office she began the process of doing that not based on new information that larry morgan had seen she'd only been in office a few weeks but by the fact that we're not going to get into the details she has a report that she will rise on does that tape all of the circumstantial evidence as you are referring to it doesn't but take it all out of the picture if she has a report she will i would i would encourage the court to look at that report in conjunction with the report of les alexander that we submitted if it in the district court relied soley on that report and that that's the end of the story this is the reason why the credit you know is conserved the alexander report goes through point by point and demonstrates that these weren't just differences of opinion there is objective data point by point fals the best most compelling evidence to include in the order of conservatorship that justified the highest sanction available under m alabama law and the alexander report demonstrates adequately that this best evidence was worthless it was riddled with inaccuracies so i think that's another item of circumstantial evidence that goes along with this very compelling timeline that this is not the work of independent examiners and independent administrator these were this was an administrator following a directive from the administration could terminate him the fact that they could terminate him without that what the statute says is he could be terminated without any liability to the credit union or the agency for the determination of still his agreement has provisions that title him to money if he's terminated it's a he cannot be terminated without cause and said that he had existing property interest that the state came in and took from him with no due process and no compensation  and according to the district court he doesn't get post depravation process either it was a conspiracy to deprive him of those constitutional rights to due process that we've alleged here constitutional right was to get paid by his employer well the constitutional right was the concert all right was force a contract that they have x so reach a contract the council right was for him to be afforded due process before his property interests were taken from him and his case but s not a party to the contract so it's not a breach of contract action available to him i'm sent he might have to guess the credit union but that's not what we're here to talk about but when he had a contract as soon as enforceable against someone who is a contract well if the other part of the contract was a credit union but what we're here today talking about is the state came in not as a party to the contract but read it and said to the way an existing property interest from him with no due process and no compensation ok my name is austin faker i have the pleasure of representing the apple easly attorney defend its in the case your honors of all focused on the very concerns that we've had from this case from from day one this is one of four cases pending in federal court all four of them are up on appeal the the string that the plaintiff attempts to tied to all of the cases is this so called conspiracy what is the conspiracy the conspiracy is in a broad form if you have to have some sort of  constitutional right but in response to the question that your honor i asked you never got got an answer about what the constitutional right was is because there has not been any impact he was terminated he's afforded due process in terms of challenging that and he's  nothing more that's all that the e mails show and nothing less it does not show an agreement of any shape or fashion they lobbied know in no different than what i'm doing before your honor's today and for particular outcome the other issue i want to address in goes to your question judge chicken bought the minutes about the decision makers what's interesting on this particular case is that the decision was miss moore but the preceeding background on that is that she made the decision to terminate based upon recommendations by federal and state examiners none of those individuals are alleged to have been part of any kind of conspiracy seen it my clients have not seen it in fact they are all argument after this it's sealed because i'm not allowed to see it now presumably what's in that report of examination or the very reasons in which mr crew was terminated and again i haven't seen it but i'm willing to bet what is not in it is jason into the lewis smith law firm or how little it's in what will be in that report of examination of all kinds of other things that the examiners found that were going on the credit union that report of examinations those involvements of the examiners or what disconnects any call to link between anything my clients may have stated in any resulting outcome regulatory action the district court's decision when you look at it whether you counted under looking at the constitutional law violation claims or the state law violation claims the disconnect in the problem district court had was this causal connection what was it and they did not make that connection because you had fourteen months between the date so predominant of the e mails that mark client sent to the ultimate regulator action of the termination and in two thousand and fifteen and of course in that timeframe we had the involvement of the examiners you had interactions between management and the credit union with the credit union itself most of those things have not been rebutted in the case and most of those had nothing to do with what judge smith i'm assuming says we haven't heard about it that the suspension is not an issue in this case it's been way the issue in this case is strictly determination and the evidence of the record is that there is no connect connection whatsoever on the suspension the district court clearly got it right in terms of this is the same issue with the with the terminations the contract could be terminated by the regulator without without with them without cause one issue that an amish loan did not bring up defect it concerned the ninety day clock for purposes of the dismissal of mr smith ultimately and the intercollegiate was no there was no estate for mr smith there was no personal representative for mr smith there was no a state that had been do want to point out on that on the emails if you will read the emails and undoubtedly you have there is nothing that mr smith said in any of the e mails that was not otherwise backed up by sworn testimony in the case that would be sworn testimony from laurie agreement under the alabama statute while he the fact that he was terminated gives him standing to challenge the conservatorship it is not the decision to terminate that he has any standing to challenge his only means to challenge that decision is to a section hundred eighty three case and in fact i don't want to i don't want this fact to be lost on the panel either the alabama statute on its face and according to the court's holding below it gut says breach of contract claim against alabama one credit union as well that's a big problem the alabama statute says that night of the agency nor the credit union can be liable for the eight for the agency terminating that agreement so according to judge kugler he can't that's the regulators under section one hundred eighty three and in the manner in which the district court upheld that statute and claimed it was still constitutional he can't even bring a direct action against the party to that contract so the constitutional concerns are manifest arbor thank you mr sun thank you ira we're going to take a few minutes just to clear the courtroom for the last case and we will return at eleven twenty