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Case number 16-7077, Jennifer B. Campbell versus District of Columbia, a municipal corporation appellant, Wayne Turnage, in his official capacity as director, District of Columbia Department of Health, Finance, Healthcare Finance.

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Ms.

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Johnson for the appellant, Mr. Podell for the appellee.

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You scared off the court.

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I thought they were here to see me.

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Good morning.

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Good morning.

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May it please the court.

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Holly Johnson for the District of Columbia.

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I have like to reserve three minutes for rebuttal.

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Miss Campbell's due process theory invites any employee with a reputation plus claim to avoid the most difficult elements of those claims.

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Proof of falsity and proof of the defendant's publication.

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We therefore ask that this whole court hold either that speech, and by speech I mean telling the public the reason for an employee's termination, is actionable only under the reputation plus framework, or hold that if there is a standalone stigma or foreclosure claim based on that, that it requires absolute destruction of the right to work.

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It can't simply be some sort of delay or difficulty in finding employment.

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When did you first make this argument in this litigation?

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We argued that there was insufficient evidence to support that.

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That's not this argument.

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I understand.

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I think that we argued this sufficiently at the trial level.

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Where?

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In the close of the plaintiff's evidence.

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What language?

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The language that we used was we said that this type of claim requires a different type of disability, and then we gave examples, losing your bar license, losing your security clearance.

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Again, at the close of evidence, we said it's a different type of hurdle.

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It wasn't just a different type of injury.

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And we offered separate argument on the type of injury.

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So there's, as I take it too, you said proof of falsity and also the scale of the destruction of right to work.

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And I think, as I read it, you're pointing to parts of the record that talk about the second, that talk about the extent to which the person was disabled or stigmatized from the field.

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But what about your preservation of the point that if the speech is not found to have been

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true, then it can, I mean, not found to have been false, then it can't be relied on.

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There are two bites, are there?

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Yes, I understand.

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Where is that?

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I mean, we're all having the same problem.

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Where is it?

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We can't find it as 50A requires.

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You have to raise it before the jury.

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You have to raise it after.

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I think that the trial counsel's analysis

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offered both.

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When it started talking about the type of hurdle and the type of disability, which is different from the effect of the disability, which she talked about separately, I think that adequately covered both.

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And trial counsel was dealing with a novel legal question.

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This is a purely legal question.

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This was not a question which additional evidence was going to be produced if it was articulated more clearly.

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And she was dealing with the fact that this court has not... Well, I don't know about that, because if the question is, was what Mr. Turnage said true or false,

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We have a record that what he said was that there were allegations and we have a record showing that there were in fact allegations.

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We don't have a record showing whether the conduct that was alleged occurred or not.

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So the truth or falsity of the facts that the allegations implied, we don't have a record on that.

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Well, I think that, first of all, that issue would go both to the question of Reputation Plus, because what Ms.

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Campbell argued was that the allegations, it's hard to use the word allegations of allegations, but that's what we're talking about here.

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The allegations versus underlying facts.

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Right.

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What the speech was on the part of the district was an allegation of the underlying facts.

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And the fact that- And the jury said nothing

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The jury said that that claim failed presumably because what Mr. Turnage said was true.

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But what Mr. Turnage said was, I have allegations, I've heard reports, I have allegations, I've heard reports.

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The jury may have said, yeah, all that's true without passing on what Ms.

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Campbell said.

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the underlying facts that were alleged.

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There's two different ways to read the jury verdicts.

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That's the easiest way to reconcile the otherwise seemingly somewhat inconsistent... Oh, I see no inconsistency in the verdict, and we're not arguing that there's an inconsistent verdict.

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In fact, the reputation plus verdict is largely irrelevant to the question here, except that it is illustrative of what can happen in these situations.

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And even if

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The speech involved allegations or claims that allegations had been received rather than claims that allegations had been sustained.

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That's still speech.

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It's still a question of whether it is true or false.

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And the public still, there's still value in the transparency of the government telling the public the basis of the reasons for action.

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There's also a lot of value in when you're investigating what's what an employee has been up to in talking to that employee.

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It's really striking.

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I mean that this whole problem could have been avoided had the district talked to her, Ms.

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Campbell's side of the story.

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It's really hot water that the district got itself into now.

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But what we're dealing with here is a question of constitutional violation.

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Right, due process.

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But the Constitution isn't a code of general civility or even of best practices.

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We know that somebody, a high-level professional, is losing her job based on allegations from people outside the government and turned it as an investigation, said, I completed my investigation.

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None of that included

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Whether pre- or post-firing.

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Talking to Ms.

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Campbell?

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Well, he then submitted the information to the Office of Inspector General.

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He didn't propose that he was doing all of the investigation on the power act.

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Oh, but he's talking personnel action.

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Yes, he is, and she is an at-will employee.

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This is a due process claim based on a liberty interest for an at-will employee.

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So under a reputation, I mean, the truth requirement is established under the reputation plus theory.

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The question is whether it's necessary or whether you can bring a stigma or foreclosure claim based on exactly the same conduct, the same speech telling the public the reason for an employee's termination.

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It's a pure question of law.

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And this is a novel theory.

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It's a novel theory that the law is

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At best, murky here.

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You rely on, as best I can tell, a single line from O'Donnell.

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That's your case.

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Your legal theory rises or falls.

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There's more than that.

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Well, there's more than that.

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And so I have a difficult time finding where in the trial

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you made this argument before your 50-B motion.

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The trial was all about the temporary jobs she obtained, Bard's stigma, that the two-year unemployment was not enough to make out a stigma claim.

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That's what your trial was about, and that's what your arguments, your 58 arguments, I think, are most recently read.

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Did you give us where you think, I mean, Judge Pill was right?

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Wait, let me just explain.

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I read it the same way she did, and I think Judge Griffith, too.

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Your argument at the 50A stage was the scale of destruction kind of an argument.

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I find nothing raising the two-bytes argument, which is a distinct theory, and under Unithurn, you have to raise

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your arguments 50A and 50B.

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Otherwise, they are gone.

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And we have no authority to attend to them.

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They're gone.

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And the law is very clear on that.

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So we're all asking you, where was it preserved by erasing it specifically in 50A and then re-raising it?

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I can't find it.

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What's your best shot in the record?

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I've given it to you.

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It's JA 417.

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If the court's not persuaded by that, I don't want to belabor the point and waste more time.

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And we can talk about the second argument, because the second argument is

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indeed as or more strong than the first argument.

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Help us out with that, yeah, the second argument about whether this counts as stigma disability under that theory.

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Yes, if this court is going to recognize a standalone stigma or foreclosure claim based on truthful government speech, then that foreclosure must amount to a change in legal status.

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This is no longer the reputation plus claim.

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The reputation plus claim failed.

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It must amount to a change in legal status.

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And it's not just the O'Donnell case that talks about this.

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What O'Donnell and now Crookes, which had not come out at the time of trial, say is that, well, you can't establish that if you found work in your chosen field.

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You just can't.

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But that's not the only law about what is sufficient to establish that complete foreclosure.

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I think GE perhaps provides the most compelling language

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about what needs to be established.

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It says that you must demonstrate that the government action completely foreclosed employment.

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If it's a company action, the company was effectively put out of business.

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And it refers to harms approaching in terms of practical effect, formal exclusion from a chosen trade or profession.

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Why two years?

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You focus on two years.

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What's magical about two years?

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Two years means nothing.

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Two years is what you have.

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What's the guideline that we should follow then?

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that if she cannot establish permanency, if she cannot establish that her ability to obtain work that she's been wiped out from ability to work in that field, then at the time of trial, I understand there's no certainty at that point.

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But if at the time of trial, a plaintiff cannot show, it's more likely than not that they are barred from their toes for life for life permanently.

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I'm going to say I don't know the answer to that.

[00:10:31] Speaker 03:
Well, that's kind of an important answer.

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It is an important answer.

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But again, we're looking at novel law here.

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We've never seen a case like this go to trial.

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But certainly... So it's novel.

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So how are we supposed to draw the line?

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It should look at other cases.

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It should look, first of all, at O'Donnell and Crooks.

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In both of those cases, this court said, once a person found a job, they could no longer bring that claim in.

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The evidence here, so the evidence here, just to push you on what I understand is a tough question.

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This is at a time when there's tremendous demand for people in the health access and health policy field.

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Here's somebody who's at the PhD.

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top of her game, top position in the district government.

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Without this action, is there any question that she would have been snapped up with the experience that she had by another employer?

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She's been teaching at the universities around.

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That stops.

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So it

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It looks a lot like a blackball or blacklisting type of effect on her, at least given the jury instruction on what the jury found.

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This is our concern.

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You speak from what you think it would be like, and she didn't offer any expert evidence or anything like that.

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Well, all those facts are in the record in this testimony.

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from her about her career.

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But not facts about the market.

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Facts about her career.

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Facts about the market are not in the record.

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And I will note, we did not move on causation for a directed verdict.

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I'm not seeking that here.

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But if you look at the paucity of evidence and you look at what a holding of a delay in finding employment would mean in future cases, it becomes very problematic.

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She was highly specialized.

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She was looking for work in a highly specialized field.

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It often can take someone two years to find work in their field.

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And in O'Donnell and again in Crooks, this court has held that when you find work in your field, you obviously weren't so stigmatized that you can't find work in your field.

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In those cases, it doesn't talk about the amount of time it took.

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And the rest of the cases that refer to foreclosure refer to it in terms of permanency.

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And I don't know, 50 years, 20 years, maybe there would be a case that would come closer.

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But it refers to it as foreclosure, formal disarmament.

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So is the plaintiff supposed to wait 40 years to bring that claim?

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Not at all.

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The plaintiff is supposed to put on evidence at the time of trial.

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Hey, if the plaintiff goes to trial six months after the event.

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And what was the evidence she put on here?

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She put on evidence that some people weren't returning her calls, that her contract with the university for teaching wasn't renewed, and that she was able to find part-time work for two years and then was able to find full-time work.

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only evidence that she went on.

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And that what, 90 or 95 percent of her inquiries went unanswered for employment?

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And she had some testimony on that.

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I apologize if I don't know the details on that testimony.

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My point is that it doesn't matter because she found work.

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And there may be a case where we question the sufficiency of evidence.

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The work you're focusing on is at the end of two years, not the temporary employment, because the district court judge found that was not in her field.

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That's irrelevant here, right?

[00:13:39] Speaker 02:
I don't know whether it's irrelevant, but you're correct about what we're focusing on.

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Why did Crooks say something like forever?

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Am I forgetting something?

[00:13:45] Speaker 02:
Crooks did not say the word forever, but it did again say that he found work and therefore that was foreclosed.

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I will note that Crooks went on to say that he might not have been foreclosed with government work, which is a different type of foreclosure, but that's not an issue here.

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With regard to his ability to work in his chosen field, Crooks said he found a job.

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And I'm not suggesting to this court that those holdings are binding here

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but that it provides guidance and that that's a best practice because the district will face litigation every time it says anything about an employee's termination.

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If it doesn't give them due process.

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Without hearing from, I mean, informally hearing from the individual.

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But this court has, and I see I'm running out of my time, I do want to preserve my rebuttal time, but this court has, and the Supreme Court, have been careful to draw the line and not just require the government to provide a name clearing hearing in every case.

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And it's done that for a reason.

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The name clearing hearing, of course, provides some burden itself.

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But beyond that, the government isn't always going to do it.

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And the question of whether the government could and what the burden is, that comes after the question of whether a right has been infringed.

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The question here, under the standalone stigma or foreclosure claim, is whether her right to work was barred.

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That's equivalent to formal debarment.

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That's the language that we're looking at.

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The equivalent of being put out of business.

[00:15:11] Speaker 01:
More informally.

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It doesn't have to be just one.

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Correct.

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Oh, yes.

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We're definitely talking about informally here.

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We're not talking about a formal debarment.

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But it says effectively.

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It's similar to formal department.

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The same effect.

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And that was not established here.

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And Crooks and O'Donnell provide clear guidance.

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And there may be some case.

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that in the future expands on this further.

[00:15:36] Speaker 02:
But certainly on this record, with this evidence that she found work in her chosen field within two years, that she wasn't looking any further, that she was content with what she found, that's insufficient to rise to the level of a due process violation, else this court will be constitutionalizing a lot of personnel law, which is- Okay, we'll give you back two minutes.

[00:15:55] Speaker 02:
Thank you so much.

[00:15:55] Speaker 04:
Thank you.

[00:16:06] Speaker 06:
Good afternoon, and may it please the court.

[00:16:08] Speaker 06:
I'm David Codell, and I'm here on behalf of the appellee, Jennifer B. Campbell, along with my colleagues from Allen, Lesch, and Associates.

[00:16:16] Speaker 06:
I'm going to begin, actually, with the second point that we were just addressing, and then I'll return to the first point about whether they had adequately raised their claim to begin with, their arguments to begin with about the stigma plus.

[00:16:29] Speaker 06:
On the issue of the two-year period and how to draw the line,

[00:16:33] Speaker 06:
I think it's very important to bear in mind that the type of harm that's being talked about in the cases is not a complete bar to ever working again or even a complete bar to working in some kind of industry.

[00:16:50] Speaker 06:
The language in the cases talks about being unable to find work

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in your career or in your profession.

[00:17:00] Speaker 06:
And if you look carefully at most of the sentences in the district's briefing, they don't say career.

[00:17:06] Speaker 06:
They say industry.

[00:17:08] Speaker 06:
They don't say profession.

[00:17:10] Speaker 06:
They say field.

[00:17:11] Speaker 05:
Well, even if you say profession or field or career, this individual was someone who had been in a broad range of health care, you know,

[00:17:20] Speaker 05:
medley of different kinds of health care positions and it's not like someone who was a health care accountant in Medicaid.

[00:17:30] Speaker 06:
Her career had a broad arc.

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move forward in her career.

[00:17:36] Speaker 06:
Let me give you an example and then come back to her.

[00:17:39] Speaker 06:
Let's say you have been in public education for decades and finally you started as a teacher, then you became a teacher, then you became an assistant principal and you kept rising up and finally you became a superintendent.

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And then you were terminated

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And you couldn't find anything comparable to that career, the career of being a superintendent.

[00:17:59] Speaker 05:
And then you became an undersecretary in the state.

[00:18:01] Speaker 06:
A substitute teacher, perhaps.

[00:18:02] Speaker 05:
No, but we're talking about, I mean, the mitigation looks at what someone's making, and is it a high-level position?

[00:18:09] Speaker 05:
And I don't think there's any dispute here that she re-entered the field.

[00:18:13] Speaker 06:
Well, except that, I think the relevant issue as to whether you have a cause of action.

[00:18:19] Speaker 06:
Mitigation might go to what the remedy is, but as to whether you've stated a cause of action, I don't think that the inquiry is simply whether you're in the same field or the same industry.

[00:18:31] Speaker 06:
I think it's whether you have, in some very material way,

[00:18:35] Speaker 06:
been unable to reestablish, you've been unable because of the action.

[00:18:40] Speaker 05:
So what's the line you're proposing?

[00:18:41] Speaker 05:
I mean, we as a court have to think about what's the future implication of what we're doing here?

[00:18:45] Speaker 05:
What is the standard in light of this case that you think that we should adopt?

[00:18:49] Speaker 06:
Okay, the first thing I would say is this will often turn out to be a fact issue, but of course, like many fact issues... What is the standard that we apply to the facts?

[00:18:57] Speaker 06:
I think the standard should be that if the government's action, in combination with terminating you,

[00:19:06] Speaker 06:
has such an effect on your profession or career that you are barred for whatever amount of time is meaningful from being part of that profession, that you've substituted, that you have experienced a due process, right?

[00:19:26] Speaker 01:
Bearing in mind... Wait, wait, wait.

[00:19:28] Speaker 01:
Now, we do have some case law.

[00:19:30] Speaker 01:
Now, that's not what Crooks says.

[00:19:32] Speaker 01:
Crooks says an individual must suffer a binding disqualification from work or broad preclusion from his or her chosen field, and cited some other cases.

[00:19:42] Speaker 01:
And that's very different from what you just said.

[00:19:46] Speaker 06:
Except that Crooks is simply silent on the length of time.

[00:19:51] Speaker 04:
Shouldn't you be allowing the Cartesillo versus Department of State case?

[00:19:55] Speaker 06:
Yeah, yeah.

[00:19:56] Speaker 06:
And so let's just say, for example, that you got disbarred

[00:20:01] Speaker 06:
That doesn't mean you can't ever reapply to the bar after a seven-year period or something.

[00:20:06] Speaker 06:
In other words, it can't be a requirement that you have to be out forever.

[00:20:11] Speaker 06:
I think what would have to be is that you are out for a meaningful amount of time.

[00:20:15] Speaker 06:
And yes, that is going to be hard to home.

[00:20:20] Speaker 06:
I would say to the jury, to the jury's estimation, that you have experienced a degree of harm that warrants relief.

[00:20:29] Speaker 06:
I do think this comes down in part to the relief question, bearing in mind that this is all based on a set of facts in which there was a failure to give you due process in the first place.

[00:20:45] Speaker 06:
I'd like to talk a little bit about the question this court began with.

[00:20:50] Speaker 06:
about whether the district adequately raised its arguments about the stigma plus during instructions.

[00:21:00] Speaker 06:
I do want to just start by saying that in this argument, when the district's attorney was asked for a record site, the best record site, they gave JA417.

[00:21:11] Speaker 06:
And that page appears to me to be about the two-year issue and not to be about the issues that this court was asking about.

[00:21:19] Speaker 06:
I want to just walk through

[00:21:20] Speaker 06:
a couple of things about the record in this case.

[00:21:26] Speaker 06:
And I want to focus on the jury instruction about the stigma plus case.

[00:21:32] Speaker 06:
Because that jury instruction was proposed in large part by the district itself.

[00:21:42] Speaker 06:
So in joint appendix page 104, the District of Columbia proposed

[00:21:49] Speaker 06:
that the stigma plus instruction include the language.

[00:21:53] Speaker 06:
If she can show that the government took action that has the effect of seriously affecting, if not destroying, her ability to pursue her chosen profession or substantially reducing the value of her human capital.

[00:22:06] Speaker 06:
So that was the jury instruction that the District of Columbia invited the court to give.

[00:22:13] Speaker 06:
And if it turned out that they misstated the law, that is an error that they invited by affirmatively proposing that language.

[00:22:22] Speaker 06:
And that would mean that this court would need to go to the plain error standard.

[00:22:27] Speaker 06:
And then also, there is another exchange where that particular jury instruction was modified again.

[00:22:35] Speaker 06:
And the language that was added was

[00:22:40] Speaker 06:
It's contained in the Joint Appendix, page 629, line 16 through 17.

[00:22:47] Speaker 06:
When that jury instruction was being discussed by the judge with counsel, Ms.

[00:22:52] Speaker 06:
Knapp, on behalf of the District of Columbia, asked that rather than saying that the plaintiff was harmed by the termination, that that phrase should say, and the publicity surrounding it.

[00:23:07] Speaker 06:
So in other words, it was the district itself that asked that the issue of publicity be included as an element that could suffice to cause the harm.

[00:23:19] Speaker 05:
Where are you?

[00:23:21] Speaker 06:
Joint appendix 629, lines 16 through 17.

[00:23:25] Speaker 06:
The final jury instruction ended up using the word press instead of publicity.

[00:23:32] Speaker 06:
But that inclusion came at the suggestion of the District of Columbia.

[00:23:39] Speaker 06:
I also think it's very relevant to note that in their briefs in this court, they wax on repeatedly about the First Amendment and speech, as though adopting the stigma plus rule that would enable this court to uphold the jury's verdict here would impose a severe First Amendment risk to governments.

[00:24:04] Speaker 06:
I encourage the Court, however, to do a word search in the entire Joint Appendix for the phrase First Amendment.

[00:24:12] Speaker 06:
I have done it on my computer.

[00:24:14] Speaker 06:
The First Amendment is not mentioned anywhere in any materials in the Joint Appendix.

[00:24:20] Speaker 06:
I also searched for a couple of abbreviations for First Amendment, never saw it.

[00:24:25] Speaker 06:
The argument that they're trying to raise here that this poses some grave First Amendment problem has never been made before in this case, and it really is a waived argument.

[00:24:36] Speaker 06:
I'd also like just briefly to indicate some ways in which that argument is an exaggeration about the burden that would be imposed, Your Honor.

[00:24:45] Speaker 05:
Let me just ask you this same question in another way.

[00:24:51] Speaker 05:
You can think of it as a claim that was forfeit.

[00:24:56] Speaker 05:
They also did not challenge causation, whether it was the failure to give her a name clearing hearing that caused her the trouble or whether it was her conduct that caused her the trouble, which I think is closely related to the question about truth or not, of the allegations.

[00:25:16] Speaker 05:
But if the allegations were accurate,

[00:25:22] Speaker 05:
then what really caused her problem might be that she engaged in unethical behavior and people don't want to employ someone who has engaged in unethical behavior.

[00:25:36] Speaker 05:
Doesn't that potentially pose a standing problem for your client?

[00:25:40] Speaker 05:
It's the plaintiff's burden to show standing.

[00:25:43] Speaker 05:
The plaintiff has to show the harm I suffered is redressable by the relief I'm seeking.

[00:25:50] Speaker 05:
And if she's seeking a name clearing hearing and cannot truthfully say, and hasn't put in any evidence that she can truthfully say, I did not encourage these people to benefit off of contracting.

[00:26:04] Speaker 05:
I did not try to steer contracts to my chosen people.

[00:26:09] Speaker 05:
If she hasn't established that, then how does she have standing to raise a procedural due process claim?

[00:26:14] Speaker 06:
Well, because there are many things she could do in a name clearing hearing.

[00:26:19] Speaker 06:
She could establish that she misunderstood what the relevant rule was.

[00:26:24] Speaker 06:
She could establish that this was a long-standing practice and that she thought she was following department protocol.

[00:26:33] Speaker 06:
She could have established

[00:26:36] Speaker 06:
that there was a connection between one of the contractors and her very boss, Turnage.

[00:26:43] Speaker 06:
She could have established that there was some other kind of relationship among the people, and she could have done the following.

[00:26:52] Speaker 06:
She could have mitigated the harm against her by potentially convincing Turnage not to go to the press.

[00:26:59] Speaker 06:
a name clearing hearing may have permitted her, even if she couldn't completely clear her name, and I'm not saying that she couldn't, but even if she could not, a name clearing hearing can affect how the company is going to respond to you.

[00:27:14] Speaker 05:
I understand all of those in theory, but here there's a question of your own client's forfeiture.

[00:27:20] Speaker 05:
Were any of those

[00:27:23] Speaker 05:
arguments made with any evidence or any declaration or any deposition testimony in the record saying as a factual matter those things.

[00:27:33] Speaker 06:
OK, I'll give you an example of something that's in the record.

[00:27:36] Speaker 06:
Eventually, Turnage testifies that he actually didn't believe one of the things that he'd been told by those who were informing him about what Campbell had allegedly done.

[00:27:50] Speaker 06:
So for example, that is in the record.

[00:27:52] Speaker 06:
Are you pointing us to somewhere in the appendix you want us to look?

[00:27:56] Speaker 06:
It's in the appendix.

[00:27:59] Speaker 06:
have it with me at this moment, I apologize.

[00:28:03] Speaker 06:
But that is an example of the kind of thing that she did present evidence of.

[00:28:15] Speaker 05:
But these are all very hypothetical.

[00:28:17] Speaker 05:
I mean, there's not evidence in the record saying, look, I needed a name clearing hearing.

[00:28:22] Speaker 05:
If it had happened promptly, then all of this misunderstanding and slander in the press wouldn't have happened.

[00:28:29] Speaker 05:
And I wouldn't have suffered in this way.

[00:28:31] Speaker 05:
This was an error.

[00:28:33] Speaker 05:
But if it's true, then the cause of her

[00:28:37] Speaker 05:
disability in her career is her conduct.

[00:28:41] Speaker 06:
I don't think there's any proof that it is true.

[00:28:44] Speaker 05:
What I'm saying is that doesn't she need, as a matter of establishing her entitlement to relief in the case, doesn't she need to put that forward?

[00:28:54] Speaker 06:
I think it is enough for her to allege that she would not have suffered all of the emotional harm that she suffered if she had been given a chance to explain herself.

[00:29:06] Speaker 06:
She did prove that because of the way she was treated, because of the way she was summarily dismissed,

[00:29:13] Speaker 06:
it had two effects on her.

[00:29:15] Speaker 06:
That laugh of the name clearing hearing seriously affected her and she testified about it and her mother testified about how hurtful it was to her that she wasn't given any chance to explain and the jury awarded damages based on suffering that she experienced as a result of not having the name clearing hearing.

[00:29:37] Speaker 06:
The suffering wasn't simply

[00:29:40] Speaker 06:
the suffering could not simply have been because of losing her job, because she was an at-will employee and she can't sue for that.

[00:29:49] Speaker 06:
What she was suing for was this additional theory, and so she did present evidence that convinced a jury that she had suffered from the lack of a name clearing hearing, not simply from the lack of

[00:30:04] Speaker 06:
of a termination.

[00:30:07] Speaker 06:
And I think it's also fair to judge the stipulation that the district entered into, the stipulation in which it ceded that for her claims, she was the judge could determine economic damages of $304,000.

[00:30:23] Speaker 06:
Again, that could not have been simply for termination because she wasn't entitled to it solely for termination.

[00:30:31] Speaker 06:
So I think even they conceded that there was some harm for which she could be compensated as a result of this particular harm.

[00:30:41] Speaker 05:
Well, they conceded if the jury found harm, the amount would be stipulated, not that she was harmed.

[00:30:47] Speaker 05:
Otherwise, this would not have been a case of trial.

[00:30:50] Speaker 05:
So the causation question that I'm probing, they conceded nothing of the sort.

[00:30:56] Speaker 06:
OK, well, I see it differently.

[00:30:59] Speaker 06:
respect your answer on that.

[00:31:01] Speaker 06:
Is there anything I have a very little time left?

[00:31:03] Speaker 06:
Is there anything else that this court has a question about?

[00:31:09] Speaker 04:
Seeing none, your time's up.

[00:31:10] Speaker 04:
Okay.

[00:31:10] Speaker 04:
Thank you very much.

[00:31:11] Speaker 04:
Thank you.

[00:31:13] Speaker 04:
Miss Johnson, we'll give you back two minutes.

[00:31:18] Speaker 02:
I want to return to and emphasize the importance of a change in legal status to establish a liberty interest violation.

[00:31:26] Speaker 02:
And what this court has done, this court's never looked at a question of whether speech alone can establish that.

[00:31:33] Speaker 02:
And if it's going to consider that question, it needs to consider

[00:31:37] Speaker 02:
some of the murky questions about how you're going to establish a high enough bar.

[00:31:43] Speaker 02:
What this court has held is that it is like losing your bar license.

[00:31:46] Speaker 02:
It is like losing your liquor license.

[00:31:48] Speaker 02:
It is like losing your security clearance so you cannot work again in your field.

[00:31:52] Speaker 02:
And the court has also said that a step back in your career path is not enough.

[00:31:56] Speaker 02:
It said that in O'Donnell.

[00:31:58] Speaker 02:
It has said the loss of some employment opportunities is not enough.

[00:32:01] Speaker 02:
It said that in Mosry.

[00:32:03] Speaker 02:
And in some of those cases, the foreclosure was part of the plus side of the reputation plus, but it's still, the question was the change in legal status.

[00:32:13] Speaker 02:
And I think this court has to, at some point, set a bar somewhere for what amounts to a change in legal status, and hold at the very least that it hasn't been established here, and it can rely on both Crooks and O'Donnell for that.

[00:32:28] Speaker 05:
I'd also like to address- What about the, go ahead.

[00:32:30] Speaker 02:
I just want to address the issue of whether Ms.

[00:32:33] Speaker 02:
Campbell's new job was, in fact, in her chosen field.

[00:32:36] Speaker 02:
I think it's important to note that that argument was forfeited.

[00:32:39] Speaker 02:
It was not raised in the post-trial briefing at all.

[00:32:43] Speaker 02:
And beyond that, there's no evidence presented to the jury that her new job was not in her chosen field.

[00:32:49] Speaker 02:
She didn't testify as to what her chosen field was when she was asked.

[00:32:53] Speaker 02:
So you are back in the same industry.

[00:32:55] Speaker 02:
She said, yes, I am on the policy side more than the implementation side.

[00:33:00] Speaker 02:
She didn't say that was a worse side.

[00:33:01] Speaker 02:
She didn't say that wasn't the same field.

[00:33:03] Speaker 02:
And obviously, your chosen field can't be, I want that job, and therefore, I'm not in my chosen field.

[00:33:09] Speaker 02:
So the question this court is going to be faced with is, when she found employment in her chosen field,

[00:33:17] Speaker 02:
By the time of trial, she already was not stigmatized whether she could establish that she was effectively foreclosed to the extent that she had suffered a change in her legal status due to a publication about allegations of misconduct.

[00:33:36] Speaker 02:
I don't believe we did, but the Supreme Court has held that a failure to object to jury instructions, St.

[00:33:41] Speaker 02:
Louis v. Propotnik, is immaterial, irrelevant to the question of whether judgment as a matter of law should have been granted before the jury was ever charged.

[00:33:51] Speaker 02:
And beyond that, we'd already lost that argument.

[00:33:54] Speaker 02:
We could have raised the objection, but it would have been a futile objection.

[00:33:57] Speaker 02:
The judge had already ruled on what the judge believed the law to be.

[00:34:00] Speaker 02:
But even if it was a complete abject failure on our part, St.

[00:34:03] Speaker 02:
Louis v. Kropotnik says that is completely irrelevant to the question before this Court.

[00:34:09] Speaker 02:
Thank you.

[00:34:10] Speaker 04:
Okay, thank you very much.

[00:34:11] Speaker 04:
This case is submitted.