[00:00:00] Speaker 00: Good morning. [00:00:01] Speaker 03: Good morning, Your Honor. [00:00:02] Speaker 03: Thank you. [00:00:03] Speaker 03: May it please the court. [00:00:04] Speaker 03: My name is Scott Street. [00:00:05] Speaker 03: I represent the plaintiff, the appellant, Pleasanton police officer, Pete McNeff, in this case. [00:00:12] Speaker 03: I know I have 15 minutes. [00:00:13] Speaker 03: I would like to reserve five of those minutes for rebuttal. [00:00:17] Speaker 00: All right. [00:00:17] Speaker 00: I'll try to help you out by reminding you, but keep your eye on the clock as well, please. [00:00:21] Speaker 00: I will. [00:00:22] Speaker 03: And Your Honor, actually, I may not even use all of those first 10 minutes because [00:00:27] Speaker 03: What happened here, what happened below in the district court was, in my experience at least, unprecedented. [00:00:35] Speaker 03: A dismissal with prejudice of a First Amendment retaliation claim based on an argument that the defense did not make under 12B6, based on an issue, causation, which under settled law is supposed to be an issue reserved for the jury, the trier of fact, and based on a case [00:00:57] Speaker 03: which I know Judge Bress will know well, Boquist versus Courtney, which actually reversed the very type of order that the district court was about to enter on the very same grounds that the district court, the causation issue that the district court was ruling. [00:01:14] Speaker 03: So, Your Honors, we believe that is clear error. [00:01:17] Speaker 03: It was done, essentially, suesponte, and we would like the court, we would ask the court to remand this case [00:01:24] Speaker 03: back to the district court, either with instructions to allow the case to deny the motion to dismiss and allow the case to proceed into discovery, because the allegations of the Second Amendment complaint, if you read pages 3 to 5, pages 20 through 22 of our excerpts of record, contain detailed allegations of fact about [00:01:45] Speaker 03: three adverse employment actions that we allege were taken in response to Officer McNeff's protected political activity. [00:01:56] Speaker 03: Namely, he attended a peaceful political rally while on his own time wearing civilian clothing on January 6, 2021, as many Americans did for whatever reason. [00:02:10] Speaker 03: And we allege that his activity [00:02:14] Speaker 03: was a substantial or motivating factor for the three adverse employment actions that were taken against him. [00:02:21] Speaker 01: So what do we make of the arbitrator's decision in this regard? [00:02:24] Speaker 01: Because as I understand it, the theory before the arbitrator was he was fired for social media posts. [00:02:34] Speaker 01: And it proceeded to an arbitrator's decision based on that assertion. [00:02:43] Speaker 01: And the opinion says he was fired because of social media posts. [00:02:48] Speaker 01: And the arbitrator's opinion is entitled to raise judicata effect. [00:02:53] Speaker 01: And now you're saying, no, no, no. [00:02:55] Speaker 01: It was really the rally and all these other things happened afterwards. [00:03:00] Speaker 01: So I guess my question is, and I think maybe what was troubling the district court is, what do we make of the arbitrator's decision that basically says this adverse employment action was taken because of the media posts? [00:03:15] Speaker 03: Well, Judge Thomas, that's what the police department in the city argued. [00:03:21] Speaker 03: in the arbitration that he was, they fired him. [00:03:23] Speaker 03: They took that adverse employment action supposedly for those reasons. [00:03:28] Speaker 03: And then Officer McNeff challenged that decision and the arbitrator held that the city did not have good cause to fire him. [00:03:36] Speaker 03: Good cause under that. [00:03:37] Speaker 01: Correct. [00:03:38] Speaker 01: And we don't have all of the arbitration documents unless I missed them in the record. [00:03:42] Speaker 01: But did the grievance say [00:03:46] Speaker 01: I was fired because of my participation at this rally. [00:03:52] Speaker 03: Well, the grievance is not in the record, Your Honor. [00:03:54] Speaker 01: Right, I know. [00:03:55] Speaker 01: That's why I'm asking you. [00:03:56] Speaker 03: I didn't handle it, and it wasn't addressed by the district court's opinion here, so I guess we're trying to read tea leaves. [00:04:04] Speaker 03: I don't believe that the challenge to the termination decision was based on Officer McNeff's political activity, and he certainly could not raise that argument as a grounds [00:04:16] Speaker 01: Well, sure you could. [00:04:18] Speaker 03: Well, as a matter of, let me put it this way. [00:04:20] Speaker 01: Here's my, and I don't know the answer to the question, but generally speaking, if you're taking a contrary position even in an arbitration to the one you're asserting here, you would be a stop from doing that. [00:04:38] Speaker 01: And also, the arbitrator's decision has raised you to God and says he was fired because of social media posts, and that was wrong. [00:04:48] Speaker 01: So that's why I'm struggling here to see, do you have the right now in district court to go and say, no, there was this other reason he was fired, not the one that we tried in arbitration. [00:05:03] Speaker 01: Well, that's my concern, and I haven't come to rest on it yet. [00:05:08] Speaker 01: But I'm raising it just so you can respond. [00:05:11] Speaker 03: It's an interesting question, Your Honor, because having not briefed it or thought about it below. [00:05:16] Speaker 01: And I recognize you weren't the arbitration attorney. [00:05:18] Speaker 03: It is. [00:05:19] Speaker 03: And having not been the arbitration attorney, I'm thinking sort of on my feet now. [00:05:24] Speaker 03: I do know from my understanding of the arbitration proceeding, and let me just tell you, [00:05:28] Speaker 03: Your Honor, why we actually included a reference to the arbitration, to the arbitrator's decision. [00:05:33] Speaker 03: One is simply so the district court can have a full understanding of what happens. [00:05:38] Speaker 01: Right. [00:05:38] Speaker 01: I mean, it was an important part of the record. [00:05:40] Speaker 01: Correct. [00:05:41] Speaker 03: And also, but also, Your Honor, the reason we included it is because we alleged in the second amended complaint that the arbitrator's findings were, if anything, could be used against the defense here because what they did is what they show is that the [00:05:58] Speaker 03: and I'm focused on the police, former police chief now, Chief Swing, did not have a good faith basis. [00:06:04] Speaker 03: So addressing the issue that the... Yeah, you won the arbitration. [00:06:08] Speaker 01: They said there was no good faith basis to determine it. [00:06:10] Speaker 03: Correct. [00:06:11] Speaker 03: And so how that connects with our First Amendment retaliation claim, Your Honor, is that that is the evidence that we are using. [00:06:19] Speaker 03: What we are saying provides essentially a pretext. [00:06:22] Speaker 03: We're saying that Officer McNeth was retaliated against [00:06:26] Speaker 03: they tried to fire him for the social media post not in good faith because they believe they really believe that they violated the city policy but in bad faith as the arbitrator found as a pretext because of this prior protected political no I understand your theory just the arbitration proceedings complicated for me because [00:06:48] Speaker 01: It seems to me you were probably obligated to raise your current, or not you, just your client, was obligated to raise it in arbitration proceedings if that was the reason for termination or the adverse employment action. [00:07:03] Speaker 01: And two, if the arbitrator says this was the reason for firing, I'm not sure why that's not raised you to cut on causation. [00:07:13] Speaker 03: Well, I think, Your Honor, I don't think the arbitrator issued a decision that this was the reason. [00:07:18] Speaker 01: No, he says that, but I'm not sure it was contested or not, because they don't have the whole proceedings in front of me. [00:07:23] Speaker 01: Well, yeah, I think it's... And I understand that I'm hitting you cold with this. [00:07:27] Speaker 01: I completely... I didn't like it when I was standing in your shoes, but it was a concern, and I wanted to be able to address it. [00:07:34] Speaker 03: Sure, and I think it's, you know, obviously, Your Honor, I mean, it's complicated by the fact that these arguments not being raised below and we not having the entire arbitration record [00:07:43] Speaker 03: I don't want to say too much about, I don't want to make too many representations to the court about what happened in that proceeding. [00:07:49] Speaker 03: I do know that the background here, the protected political activity does, I think it did form sort of the background for the arbitration, the challenge to the termination, the efforts to terminate Officer McNeff's employment. [00:08:06] Speaker 03: But one thing I do think is important is even setting aside [00:08:10] Speaker 03: Your Honor's concerns with however this plays out in litigation with the effect of the arbitration decision, effect or non-effect, either vis-a-vis the plaintiff or the defense, there are two other adverse employment actions that preceded the termination decision in which we allege had those not happened, there never would have been a termination. [00:08:36] Speaker 03: There never would have been an arbitration proceeding. [00:08:39] Speaker 03: And so what we are alleging, and those three adverse actions, number one, relieving Officer McNeff of duty. [00:08:46] Speaker 03: Number two, the social media investigation, which we allege in our complaint was instituted not in good faith based on a belief that [00:08:55] Speaker 03: some citizen was really complaining but in bad faith to create a basis to try to fire Officer McNeff. [00:09:02] Speaker 03: Those are independently actionable regardless of what the effect of the arbitration proceeding is. [00:09:09] Speaker 04: Are you alleging retaliation both because of his attendance at the rally and because of his social media posts? [00:09:16] Speaker 04: You're saying these actions were taken in response to both and you contend both were protected? [00:09:20] Speaker 04: Yes, Your Honor. [00:09:22] Speaker 01: Let's assume that [00:09:24] Speaker 01: Take away the rally. [00:09:27] Speaker 01: Let's say we're just talking about the social media posts. [00:09:30] Speaker 01: Do you think that you're entitled to damages? [00:09:32] Speaker 01: The bar returner said you get to go back to work, get back pay. [00:09:39] Speaker 01: And as your theory is, you can also get damages for that in federal district court? [00:09:43] Speaker 03: I don't think we can get damages for the back pay that Officer McNeff has already been compensated for. [00:09:49] Speaker 01: No, I mean, I'm talking about other damages. [00:09:51] Speaker 03: Well, I think there are other damages. [00:09:52] Speaker 03: I think there are damages to his reputational harm. [00:09:55] Speaker 03: Officer McNeth will testify that once he was suspended and once this investigation was launched, his career, even after returning to work, has gone downhill, has changed dramatically. [00:10:10] Speaker 03: And that is, at the very least, one component of the damages that he will recover. [00:10:15] Speaker 03: What additional damages? [00:10:17] Speaker 03: I don't know, because we were, again, at the pleading stage. [00:10:20] Speaker 03: In fact, never really had one substantive hearing with the district court on this. [00:10:24] Speaker 00: I know you wanted to save five minutes, but let me confirm. [00:10:27] Speaker 00: I understand that Chief Swing is the only issue on appeal that we need to resolve. [00:10:31] Speaker 00: The other officers and the mental claim you've dropped from the appeal, right? [00:10:34] Speaker 03: We agreed to drop those, and we would, if we returned to the district court, we would focus on the claim against Chief Swing. [00:10:41] Speaker 03: Yes, and I'll reserve the balance of my time. [00:10:43] Speaker 00: All right, thank you. [00:10:44] Speaker 03: Thank you. [00:11:02] Speaker 02: Good morning, Your Honors. [00:11:04] Speaker 02: I may have pleased the Court. [00:11:05] Speaker 02: My name is Nicholas Grether. [00:11:06] Speaker 02: I am an attorney at Liebert Cassidy Whitmore, representing the defendant's appellees in this matter. [00:11:12] Speaker 02: We respectfully request that this court not partially reverse the district court's order or judgment in this matter. [00:11:21] Speaker 02: The appellant argues that his First Amendment claim against, or retaliation claim that is, against Chief Swing is adequately pleaded to avoid dismissal under the analysis provided from the district court. [00:11:33] Speaker 02: We contend that it is not. [00:11:35] Speaker 02: While there are allegations of adverse employment actions and protected activities or [00:11:41] Speaker 02: political activities under the First Amendment, what's missing is those factual allegations to support an inference of retaliatory animus. [00:11:52] Speaker 02: Instead of having those factual allegations within the complaint, what you see are repeated statements, chief swings, retaliatory animus led to making this decision, led to making that. [00:12:06] Speaker 02: Those are conclusions. [00:12:08] Speaker 02: Those are not allegations of, those are not factual allegations. [00:12:12] Speaker 04: Well, but I mean there are factual allegations that he attended a rally soon after that. [00:12:16] Speaker 04: People complained about that. [00:12:17] Speaker 04: There was an investigation. [00:12:19] Speaker 04: There was an investigation into his social media accounts and posts and that then adverse actions followed from that. [00:12:27] Speaker 04: So is that not enough? [00:12:29] Speaker 02: Right, I would contend that it is not, because there isn't anything from Chief Swing's perspective other than conclusory allegations that say Chief Swing intended to retaliate against him for these purposes. [00:12:41] Speaker 02: Other than those actions occurring, there isn't that allegation, that factual allegation. [00:12:48] Speaker 02: Several cases point out [00:12:53] Speaker 02: When you have those kind of issues, you see that circumstantial evidence of, say, a board of supervisors criticizing a proposition or other individuals saying, I thought that this speech was repugnant or distasteful. [00:13:08] Speaker 02: They're not saying, they're not preventing that direct evidence of retaliation, but that is that circumstantial evidence. [00:13:14] Speaker 02: that is typically provided that is missing in this case. [00:13:18] Speaker 04: Well, it's only on a 12b6, you know, I mean we don't, there's a lot that could be uncovered that could support one side or the other on this, but why wouldn't the inferences we would draw from the circumstances be enough under the cases? [00:13:32] Speaker 02: Well, that's where the allegations, where they include the arbitrator's decision come in, as well as previous references to what they've pleaded in the first amendment. [00:13:40] Speaker 00: Well, he did plead in the amendment that the Facebook posts were a motivating factor in the retaliation. [00:13:46] Speaker 00: The district court didn't discuss that. [00:13:48] Speaker 00: What do we do with that? [00:13:51] Speaker 00: I mean, there doesn't appear to be any reason for taking the action, right, setting aside the rally, because he had been a good officer during his tenure. [00:13:59] Speaker 02: Right, and I think what's important to show is that within those factual allegations, there isn't anything in there that shows any animus from Chief Swing about those Facebook posts. [00:14:10] Speaker 02: Rather, the complete opposite. [00:14:13] Speaker 02: choosing to investigate it and choosing not to have the police department investigate it itself. [00:14:18] Speaker 02: And then that arbitration decision then leads and then reviews those decisions and it found that these were potential violations of policy that were being alleged and ultimately the arbitrator found that there were no violations of policy. [00:14:34] Speaker 04: I guess the challenge a little bit is that, [00:14:37] Speaker 04: some of these things seem kind of related. [00:14:38] Speaker 04: This isn't a situation where they say, well, he went to the rally, now he's being fired for some other misconduct that has nothing to do with speech or his political views. [00:14:46] Speaker 04: I mean, the social media posts are kind of of a piece with going to the rally. [00:14:52] Speaker 02: Except that in [00:14:55] Speaker 02: One of the posts predated going to the political rally, which was complained of by another officer, and then Officer Batt, who was a real subject of the arbitrator's decision, was the one who had pored over social media accounts, or McNeff's, the appellant's social media account, and then found some offensive posts and then sent those in as... Right. [00:15:19] Speaker 00: I think the problem here is that we're at the 12-B-6 stage, right? [00:15:22] Speaker 00: He does allege that there were some posts that was [00:15:25] Speaker 00: the motivating factor in the retaliation, and he attended the rally. [00:15:29] Speaker 00: So he's entitled at this point to reasonable inferences. [00:15:33] Speaker 00: And so he goes to the rally. [00:15:35] Speaker 00: Shortly after that, he's placed on administrative leave. [00:15:38] Speaker 00: Then his six-year-old polls were then dug into, and then he's terminated after that. [00:15:44] Speaker 00: No history of disciplinary action. [00:15:47] Speaker 00: So there are inferences there that we can rely on, can we not? [00:15:52] Speaker 02: I would argue that those inferences are undercut by a number of issues, and most prominently, the arbitrator's decision. [00:16:00] Speaker 02: To clarify, though, he went to the rally, and then the next day, or within a couple of days, as it's pleaded in the second amended complaint, there was no action taken against him for his alleged attendance at the rally. [00:16:15] Speaker 02: I guess it was mistakenly believed that he was in Washington, DC that day, and rather he was in Sacramento, California. [00:16:21] Speaker 02: and that nothing had occurred that day, so nothing would happen. [00:16:24] Speaker 02: It wasn't until a number of days later, which was a few days later, I think January 10th, that the anonymous email came in with the complaint about his social media history. [00:16:36] Speaker 04: How do you think the arbitration helps you? [00:16:37] Speaker 04: That's confusing me a little bit because he did win there. [00:16:42] Speaker 02: Sure. [00:16:43] Speaker 02: What I think is important about the arbitration is that there isn't any evidence that the arbitrator uncovered or that's included in this pleading to show that the arbitrator found that Chief Suing was intentionally or any other way retaliating against him for his First Amendment activity, rather that he was concerned about violations of policy and the disruption that those posts had caused. [00:17:08] Speaker 01: Right, but was retaliation at issue in the arbitration? [00:17:11] Speaker 01: Again, I don't have the papers, so I can't tell. [00:17:14] Speaker 02: I'm in a similar position where I wasn't the attorney handling it. [00:17:18] Speaker 02: However, it doesn't appear so from, well, I'm not sure. [00:17:23] Speaker 01: Right, so I mean, to echo Judge Press's question, it seems to me, and I quizzed your friend about this, but I mean, in your position, you've got an arbitrator's decision that said he was fired without good cause. [00:17:38] Speaker 01: And I think that's probably raised judica. [00:17:42] Speaker 02: Yeah. [00:17:43] Speaker 01: And I mean, the question is, and I asked your colleague, is he also entitled then to bring a 1983 action on top of the arbitrator's decision? [00:17:53] Speaker 01: I think maybe the answer is yes. [00:17:55] Speaker 01: And if so, you're passed 12-by-6. [00:17:58] Speaker 02: Right. [00:17:58] Speaker 02: I think in that argument, it's potentially it would be maybe reserved for a motion for judgment on the pleadings or once we have a full and complete record on the arbitration as for res judicata, that's one of the reasons we didn't bring it on that 12b6. [00:18:14] Speaker 02: It's not as if we had a previous lawsuit or something that was 100% clear. [00:18:19] Speaker 02: We also had not been able to enter those documents into the record. [00:18:23] Speaker 02: Their confidential police officer personnel files would have to, you know, [00:18:28] Speaker 02: It's the next stage. [00:18:32] Speaker 00: So if we disagree with you and find that the district court erred in finding his allegations too conclusory to establish a constitutional violation, then do we send it back for the district court to take up the clearly established law prong in the first instance? [00:18:50] Speaker 00: Or do we reach that issue ourselves? [00:18:52] Speaker 02: Yeah, I mean, I think it probably in that respect probably should go back because it does not appear that the district court really analyzed that clearly established law position. [00:19:02] Speaker 02: Our position would be given the analysis there though that by failing to allege that but for causation in this situation you don't have that clearly established right. [00:19:14] Speaker 02: But I think that would be the appropriate analysis giving Chief Swing's decision making power [00:19:21] Speaker 02: those other issues. [00:19:22] Speaker 04: What if we assume they had alleged the but for causation? [00:19:25] Speaker 04: Do you think that would then violate a clearly established right if the allegations are accepted as true? [00:19:31] Speaker 02: No, no we don't we don't think so. [00:19:35] Speaker 02: In this case what is the clearly established right of police officers in California must maintain themselves free of bias. [00:19:43] Speaker 02: They cannot [00:19:44] Speaker 02: There is actually a specific law that requires that findings, sustained findings, which is not this case, but a sustained finding that making an offensive or racial or biased post online would actually be a public record. [00:19:58] Speaker 02: It can certainly subject officers to discipline. [00:20:03] Speaker 02: There's no argument that [00:20:05] Speaker 02: Other than the motive that is being, I would argue, conclusorily offered by the appellant that these were in retaliation, there is nothing improper about investigating or placing an employee on leave who is alleged to have engaged in misconduct. [00:20:30] Speaker 02: I would like to just point to a couple of cases that [00:20:35] Speaker 02: I believe are helpful to understanding the causation argument. [00:20:41] Speaker 02: And in a couple of them, Arizona Students Association and the Koala versus Kozla, which were both cited in fact by the appellant, those involved Ninth Circuit reversals of orders granting motions to dismiss. [00:20:56] Speaker 02: What was found was that the district court had ignored evidence [00:21:00] Speaker 02: In the Arizona Students Association case, it was that other plausible factual allegations, in that case, the Board of Regents had criticized a proposition that the Student Association supported. [00:21:14] Speaker 02: And so that led to an inference of retaliatory intent. [00:21:17] Speaker 02: Several regions actually criticized it as well. [00:21:20] Speaker 02: They allegedly, some of the regions had acknowledged that their decision to change the fee model, there they were arguing about losing funding from an opt-in to an opt-out, from an opt-out to an opt-in situation. [00:21:37] Speaker 02: So they alleged these additional factual allegations that could draw an inference, right? [00:21:41] Speaker 02: There was no statement that, oh, I'm going to retaliate against this person or this group because of their First Amendment activity, but there were these additional factual allegations where you could draw those inferences. [00:21:54] Speaker 02: The other, in the Koala versus Kozla case, the, I wasn't, [00:21:59] Speaker 02: UC San Diego was a article that was very, allegedly very distasteful that was published. [00:22:06] Speaker 02: The Student Association passed a media act that essentially eliminated its funding. [00:22:12] Speaker 02: Then the student newspaper sued. [00:22:15] Speaker 02: When they had the Ninth Circuit overturn that order on the motion to dismiss, it was noted that the allegations were ignored such as, [00:22:23] Speaker 02: that the chancellor called that publication cruel and repugnant and that the response by the student association was to cut their funding and retaliatory at that point. [00:22:39] Speaker 02: So there were those specific factual allegations made to connect those two things together. [00:22:43] Speaker 04: And we don't know what the chief said or wrote because there's been no discovery [00:22:48] Speaker 04: In this case, maybe in another case somebody has managed to get their hands on something like that, and that would be even more helpful, but how do we know here what his views were when this is just on the pleadings? [00:23:01] Speaker 02: Well, right, but there are ways to plead that in circumstantial evidence if you have some way to plead that, which the appellant has not thus far. [00:23:12] Speaker 02: I believe the district court was correct on, including that these are conclusory allegations, is by simply declaring he had a retaliatory animus without any factual allegations to support that. [00:23:22] Speaker 00: Well, the temporal proximity really helps the plaintiffs, right? [00:23:25] Speaker 00: And so that's why I asked you about the inference that can be reached. [00:23:30] Speaker 02: Yes, and I agree that the temporal proximity is certainly a factor. [00:23:35] Speaker 02: However, all the cases also require something else, right? [00:23:39] Speaker 02: some other factor beyond merely temporal proximity. [00:23:43] Speaker 02: As they noted, you know, it can be a few days, it can be even years, there can be that temporal proximity analysis, but without something more, without some other factual allegation, that appears to fall short under those cases. [00:24:03] Speaker 02: Lastly, I would just point out the, [00:24:06] Speaker 02: Appellant cited a statement of recent decision before the ultimate ruling from the district court, the NRA v. Volo case. [00:24:16] Speaker 02: Again, very similar allegations to the other Arizona students case and the Koala case where there weren't those inferences drawn in favor of the plaintiff in those cases. [00:24:32] Speaker 02: But in fact, in the Volo case, the NRA had alleged that she had met with executives and that she had allegedly coerced them or threatened them with enforcement actions based on their insurance products that were related to the NRA and that if they stopped carrying those products that they would no longer pursue those actions. [00:24:55] Speaker 02: So there were those other factual allegations rather than the mere recitation of the elements. [00:25:02] Speaker 02: And for those reasons, we would ask that the Ninth Circuit and Your Honors uphold the orders dismissed. [00:25:14] Speaker 00: Thank you. [00:25:14] Speaker 00: Thank you, Council. [00:25:26] Speaker 03: Your Honors, just a few final points to sum up. [00:25:31] Speaker 03: As many courts have recognized in these cases, First Amendment retaliation cases, it is hard to plead, certainly in good faith, the defendant's state of mind. [00:25:43] Speaker 03: We did do that here, but that is why the pleading affects temporal proximity. [00:25:52] Speaker 03: pretext are especially important in these cases and that's what we have here what we alleged pages three through five of our complaint a police officer who has never been disciplined for anything is suddenly within a matter of weeks of engaging and protected political activity is relieved of duty has his entire social media history searched and has his [00:26:22] Speaker 03: boss, the police chief, tried to fire him over the recommendations of a law firm and, as the arbitrator eventually found out, as Judge Thomas pointed out, in bad faith, not based on a good faith belief that he violated a city policy. [00:26:38] Speaker 03: So under subtle law, Your Honors, I believe that is sufficient, sufficient factual allegations to state this claim. [00:26:45] Speaker 03: I believe, quite frankly, that's why the defense did not move to dismiss [00:26:49] Speaker 03: that claim below under 12b6, and we believe that claim should proceed into discovery. [00:26:57] Speaker 03: Two other points regarding the qualified immunity analysis. [00:27:05] Speaker 03: Again, this wasn't raised specifically with respect to Chief Swing on 12b6, but with respect to qualified immunity, clearly established law. [00:27:16] Speaker 03: I would just direct your honors to page 38 of our [00:27:19] Speaker 03: opening brief, a number of cases, including cases that have recognized that it is clearly established, at least as of 2015, if not earlier, probably under this court's decision in Coast Salter, that taking action, adverse employment actions, termination, suspension, transfer, relief of duties, in response to an employee's protected political activity, [00:27:46] Speaker 00: But the district court didn't reach that prong of the qualified immunity analysis. [00:27:50] Speaker 00: Do we send it back to give the district court the first crack at it? [00:27:54] Speaker 03: Well, I think you could send it back, Your Honor. [00:27:56] Speaker 03: I do think it's, and again, we're reading tea leaves here. [00:27:59] Speaker 03: I will say that the record below was in an earlier motion to dismiss the defense had raised a qualified immunity argument and the district court had asked them to [00:28:13] Speaker 03: more meaningfully engage in the clearly established law side of that analysis if they brought that motion again. [00:28:20] Speaker 03: They did not do so. [00:28:21] Speaker 03: So the fact that the district court did not address that issue, even in the alternative, suggests to me that she would have recognized what all of the law we've cited on page 38, that that right is clearly established. [00:28:34] Speaker 03: And so she went the other way and said, well, it's not sufficiently alleged. [00:28:37] Speaker 03: So I think that Your Honors could [00:28:41] Speaker 03: in the interest of trying to expedite this, take on that issue and decide that, but you could- People are always urging us to do that and the district court said, why did you take that on? [00:28:50] Speaker 03: I do understand that and I'm always interested in trying to push my client's cases through as efficiently as possible. [00:28:58] Speaker 03: So if we need to address that below, that would be fine. [00:29:01] Speaker 03: But I think your honors would be welcome to- I gather from your argument, your clients back at work? [00:29:07] Speaker 01: Yes. [00:29:08] Speaker 01: And at Pleasanton? [00:29:09] Speaker 01: Yes. [00:29:10] Speaker 01: And what is, I mean I don't want to pry on anything, but I mean I'm curious as to where you see the resolution of this case. [00:29:20] Speaker 01: What does he want? [00:29:22] Speaker 01: If you can say. [00:29:23] Speaker 01: I don't want to, I want you to say anything, attorney-client privilege. [00:29:28] Speaker 03: I think it's hard to say. [00:29:30] Speaker 03: By the way, my client would have been here, but for being at work. [00:29:34] Speaker 03: So I wish he could have been here. [00:29:36] Speaker 03: I think for officer McNeff, your honor, what he would like to see here is vindication and really he wants to shed a light on what happened and why, and not only recover the damage for the reputational harm he suffered, but ensure it doesn't happen to anybody else. [00:29:57] Speaker 01: The reason I ask is, listening to both of your arguments today, [00:30:02] Speaker 01: I wonder whether or not this is an appropriate case for our circuit mediators to talk to you about. [00:30:09] Speaker 01: And I don't expect you to respond today, but that was the reason for my question. [00:30:16] Speaker 01: Thank you. [00:30:16] Speaker 01: Thank you. [00:30:17] Speaker 00: Thank you very much, both sides, for your argument. [00:30:20] Speaker 00: The matter is submitted, and that concludes this morning's argument calendar and our argument calendar for the week as well. [00:30:27] Speaker 00: We're adjourned.