today the first cases two thousand and eighteen one zero three five three nervous harmon versus dallas dallas county texas and derek ave you  constable of dallas county derrick evans broke the law order deputy constable norris harman and many others reported that they blew the whistle they spoke on a matter of public concern what was never disputed in the trial court was did harm and speak as a citizen did he speak as part of his duties that issue was never raised by either dallas county  derek evans the only person raised that was judge lindsey after judge police had already denied a motion for judgment as a matter of law so the this citizen speech official speech just was not an issue in this case  once the whistle blowing by norris harmon and others would became widely known the constable dirk evans spoke to his deputies and he told them some of you are throwing rocks i'm going to save my rocks and i'm going to be thrown back that's just what he did he waited a weapon months and then he fired a series of deputies including or a swarm of he did what he said he would do and the the apple e's below moved for judgment for summary judgment said there's no temporal relationship it's eleven months but the facts  least correctly ruled that evans did what he said there was a relationship counsellor how do you deal with the fact that whether or not he's been pretty f dallas county in state court said you got to sue somebody else you got to sued derek evans about his ultra vires acts if somebody is representing my interests i sure don't want to tell the court or tell the other side go sue dunn leave the dallas county was not representing evans interests and not alters beers yes ron in state court they said these are ultra vires claims ultra vires claims and you can't bring them against the county derek evans was not a party in the state court lawsuit because it was a whistleblower case texas was where act is not allow a cause of action against a supervisor or a coworker you just can go against the employer so ev not in the state court case he was in improving he would dallas county they didn't have the same interests in the state court case and that's clear because dallas county said sue evans they pinned it on him yes they didn't represent were no  and whether in state court or in federal court no one on the defense side ever said he didn't do these things no one ever said this is a speech on a matter of public concern no one ever said he's not reporting a violation of law those issues were never raised dallas county in the state court said you don't have jurisdiction and the state court agreed so movement moving on to you know this issue of r following the state law to coddle jurisdictional decisions or not merits decisions the state court said we don't have jurisdiction we're not going to hear this case rescued a cot is supposed to be based and i'm prepared to do that great case judge judge willett wrote the opinion i understand judge all right you're on the panel i'm sure that's why i've cited but it doesn't really have a whole lot to do with this case what thompson addresses is the fact that you had two lawsuits filed apparently at the same time state court federal court and they were bored by limitations a defensive issue a defensive b judicial resources by not doing it twice that that's not what happened here state court lawsuit was filed state law claims were sorted the state court said i don't have jurisdiction harmon went to federal court with this federal claim so he's allowed to do that and since the state court said you've got alter virus claims that you need to bring against the individual dallas county suggestion sue their evidence party they're not claiming they were in pretty with  what do you do about the the argument that if a court dismissed for lack of subject matter jurisdiction because of the munity it's a decision on the merits that that texas law might hold that do you eleven months later got fired the grievance and he filed disagreements with the county and he filed this prevents with his supervisor his department head the constable derrick evans it was never h by either dallas county or derrick evans so he filed his state court lawsuit whistleblower lawsuit seeking to have his grievance heard there were other claims to enjoin the bad acts that dallas county said were al and ultimately the state court ruled no jurisdiction on the whistleblower claims ultra virus acts you've got a break against the individual and because derek evans by the time of the ruling of the state court had been been tossed out of office based on an indictment for the very acts that harmon complained of they said this issue is moot because the relief you're seeking he isn't they any more so these decisions of no jurisdiction you've sued the wrong party and the issues are moved are not  if if if we do not agree with you and i'm not for shadowing just hypothetically if we did not agree with you that they didn't raise the car said he if you are at the proper time or can you still win yes your honor just at least got it right he said every reasonable official would understand you can't retaliate against your subordinate against your employee for blowing the whistle or for speaking on a matter of public concern talking with my wife yesterday she said i know that the man on the street knows that why doesn't the elected constable know that the district attorney the chief law enforcement official for dallas county defending this why didn't they know that but judge police got it right it's been clearly established for decades and this issue of citizen speech versus official speech is the issue that gives everybody fits but it wasn't an issue in this case so you don't even look at the garcia the issue look about it's straightforward we tally it it's retaliation and that's the claim i believe so you honor because dallas county never said hey harmon was speaking as part of his job eric evans never said this was part of his job so so as i understand the guards said the case and the case is the follow the question he did the assistant district attorney was a part of his job to report the wrongdoing in the los angeles county district attorney's office and the senate it was part of his job and they can't retaliated against him talking about retaliatory discharge to be a claims to an employment law i don't think they can retaliate on it and for i don't think they have protection for retaliation under any law under any case from this court so no you i don't think they can retaliate but evans will did not raise this issue judged so least correctly said every reasonable fishel would understand this there was no official speech there was no qualified immunity wh director for dallas county said told us in an affidavit in state court said everybody's got a grievance rights dallas county has a system where after two thousand and three deputy constables who were hired don't have civil service protection so there's a two tiered system and those who have civil service get their grievances heard by the civil service commission those who don't may or may not get their considered or heard by their department head the elected kossovo who very often is the person who terminated so it's people hired before two thousand and three are treated with better better protection than people and that big will protect guess your honor and the reason it survives is because in this in federal court matty malden taylor testified that no what i said in state court was not right that non civil service deputies do not have grievance rights they have a right to complain and this court has said and i'm drawing a blank on the name of the case i think it's the professional association of college educators like think of as a base case said employers don't have to set up a grievance system but once you do you can't discriminate and so that's exactly what they're doing madam alton taylor also testified that those who those terminated employees who go to civil service some of them get their jobs back she could cite not a single example of an employee who had a department grievance with the constable we got his job back and that's a that's a big difference it's kind of the the bar someone a justice ginsburg's i which i think you know you got the skim milk version of grievances and you know the whole milk full fledged civil service grievance we want the the whole deal we want the civil service grievance we think we're allowed that it's a fundamental right the right to petition the government it should have been subjected to strict scrutiny and the ordinance should have been declared unconstitutional is there in history about whether or not it was requested timely or any of that and then again i think there's some conversation or discussion of that in the order of dallas county didn't raise the of one of the judgments one of the memorandum opinions so so your honor we think it survives it's a denial of equal protection related to a fundamental right and we're asking the court number one to reverse the decision determine that there was no roaster to determine that there is no qualified immunity and allow us to move forward on the equal protection claim like thomas expired thank you thank you in looking at the of the various orders in the state district court that all parties all claims were resolved and there was an appealable final judgment that was not appealed the whistleblower blower case was protection claim with under the texas constitution there is not a extensive analysis in the state district court but the plea to the jurisdiction practice was pleaded the jurisdiction in a motion to privity i read his analysis to say i'm going to decide that constable elevenses title qualified immunity and i'm going to do a qualified immunity analysis to dispose of the so you're  his alleged retaliation and so his interests were at stake the facts of the case involve his alleged retaliation and responding to that claim the county would have been developed vicariously liable if if  illegal practice of setting ticket quotas or towing and so those those those alleged illegal acts were managers that needed to be made directly against the public official who was violating the law that was county so the argument in the district court was not only are those claims completely irrelevant to the employment retaliation claim but if you want to sue derek evans for  dismissed in a subsequent order after the the district court state district court dismissed the whistleblower an equal protection claims they came to the court came back after allowing a moment in the district court went to an untimely filing of the whistleblower claim the was war caused action had a ninety day limitations period and it wasn't that i could the question was not and in the state court i don't believe so i don't i don't think raising limitations was an adverse position to constable evans and as to the equal protection argument it was a straightforward immunity argument so i don't construe those as as being adverse to the interests in fact i think they protect the interests of constable evans and if we did find city this quote was very clear that you can't hold back the federal claims litigate state wrongful termination shoot first and come back around and litigate your federal claims arising out of the employee and relates to the employee's personal situation or if it's the act of a citizen and relates to a much matter of public concern and the employment context i think darn near e which is followed by this court's decision in gibson versus kilpatrick make it very clear that in the context of employment that the right to petition is is is is not fundamental matter different categories of employees are put into the grievances them and protected with the people rights at different times for different policy reasons that's that's that's a private of a local government i don't think it's a federal issue i think i think the case that council cited professional association of colleges versus versus our passo community college is simply stands for the proposition and it and he as he concedes it does the same for the proposition that you don't look to the first amendment to find an employee grievance right we could talk about fourteenth amendment due process rights invested property interest point i want to make a buck up professional association of college educators is is that while that case notes that if you do have a grievance process you can exclude union members that that's not much a petition issue as the court this court ruled in that case but that's a freedom of association issue if you're willing to let me interrupt you and take you back to qualified immunity yes  analysis and i don't disagree with you i think what we will look at there is lame versus franks and we recognize that this is a vexing question you know whether it's a lawyer versus franks was decided that looked like a lot like employees speech and aftercare sadi we had cases where we're trying to figure out whether the government employees is is acting as a citizen or acting as an employee and making complaints but in the law enforcement judicial context you're in the business of making reports of violations of law so that looks more or it does look more until we we get to franks and we we get a new test and we're focused on the ordinary duties so if you're in the ordinary your ordinary duties are you don't talk to the f b i then you're probably acting as a citizen when you're talking to the f followed up on by ministration you're probably talking as as an employee but when you write you take that complaint outside and in you publicize that complaint and you add to that complaint that you employment standard and didn't didn't focus on this ordinary ordinary course of business element that that was added by the supreme court and frank's tell judge l point i did i did not do the briefing in the truck or i've reviewed the briefing and i know it's not a criticism starr i'm just trying to figure out whether or not it was raised in the district court by the party or whether we shouldn't differently before this appeal judge when c one when he reviewed when the case was reassigned from judge police after his retirement the judge lindsey asked for supplemental briefing on the arguments advanced on behalf of dallas county and mr evans and trusts that there were there were no arguments made by the county that as that we thought were relevant but there they were and so we we did take the position if you want to sue him for that which doesn't advance the ball in the employment case one way or another  in that kind of he doesn't cite a single case that involves full faith and credit of a dismissal by state court so it's your position that it black of jurisdiction or stuff was moot and that stuff was all to a virus and that was something we had to deal with it was a part of a judgement but six months earlier the judge dismissed the employment law case which is all we have here you don't have any claim it was in front of you about a ticket practices a ticket fixing or are totally quota the ticket quota isn't totally practices you don't have a case you have an employment case that was dismissed months earlier by by the district court and the equal protection claim and on the whistleblower claim which are the claims before you the operative claims before you i think we have  please the court i want to answer some questions but the question was dallas county adverse to evans and the state court absolutely since i've been used in all point out that the amount of daylight between evans and dallas county you could replete through their briefing is these are all true virus claims that you have to bring against the official and i didn't hear mr waite dispute that today he in fact said twice we told him to sue the official if you want to sue the official i don't want someone representing my interests in a case i'm not appearing as a party to tell somebody to sue me i don't think that's representing my interests they're not in privity so so there's just no evans to answer judge over a question i don't think the dallas county ever said we did not know that evans was doing these things and they would have been hard pressed to say that because they commissioned a as as mr wade noted a one hundred twenty page investigation report that concluded that mr evans had broken all kinds of laws lots of laws nor was harmed in any complaint and that's in the record i don't know what the site is but we call that the def and ball report that was commissioned by dallas county the commissioner's court so they knew they didn't deny he did those things with respect to the denial of equal protection they have to grievance systems it is a fundamental right and the pace case does talk about union membership's it's a right of association case it's of first amendment case and this court said you can't discriminate such that infringes on the rights of association it's not precisely on point with first amendment rights of the right to petition but there's no i can see no reason why this court could say you're allowed to discriminate in grievance rights when you set up your grievances them but not you can't discriminate based on association or union  membership they're all first amendment rights norms harmon has a first amendment right to petition we sued under equal protection because dallas county has set up two separate systems and what this court said is if you have suspect classifications are subject to strict strewed name will be sustained only if they are suitably tailored to serve a compelling state interest similar oversight by the courts is do when state laws impinge on personal rights protected by the constitution so dallas county mr evans can say lots a union case doesn't really apply here i think it does it's the only case it really talks about this issue and this court said once you've set up this system which dallas county has you may not discriminate we don't think they can discriminate and provide some employees these grievance rights greater protection under a civil service system and deny others who have a grievance where i don't know that there's any evidence of this beyond this mall than taylor's testimony about she didn't know anybody who got their job back through department grievance look at the supplemental brief the answer no judge they still stuck with pause ation judge lindsey said brief this talk about it and the issue was citizens beach official speech even a supplemental brief and looked at it last night it's not in there so they didn't raise it i love an i love fight it's an adversarial proceeding it's kind of hard to fight the d a and the judge that was improper we asked the court to reverse the decision thank you thank you we have your argument this