[00:00:00] Speaker 05:
Case number 21 dash 1738, Jesse P. Good at balance versus District of Columbia at L. Mr. Carl for the balance, Ms.

[00:00:09] Speaker 04:
Anderson for the Apple Ease.

[00:00:14] Speaker 04:
Morning, Mr. Carl.

[00:00:15] Speaker 01:
Morning, Your Honor.

[00:00:18] Speaker 01:
I represent Judge Good, whose section 1983 claims for denial of due process were dismissed under rule 12B6 motion.

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The appeal this morning focuses on two related issues.

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Number one, whether or not Laudermill, Matthews, and Goldberg control the court's disposition of this appeal.

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And secondly, whether the district court's consideration of matters outside the complaint were to follow Judge Villard's decision in Banneker Ventures.

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The district court below ruled that Judge Good had a property interest

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and reappointment because of the way the regulations were written, that he had a legitimate expectation of reappointment as an administrative law judge.

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And if you look at the objective merits, you find that defendant Adams said things like, I appreciate your thoroughness, professionalism, and your attention to our responsibilities to our litigants.

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And later on, he writes, good has been professional, thorough, and helpful.

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and all his work and Judge Good's work product and his timeliness in publishing orders over his last term has been exemplary for the Viola County's professional, courteous, fair with, but against the representatives who appear before him.

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So he, Judge Good, satisfied the objective qualifications for reappointment to the position.

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I wanted to do promise.

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address the DC Court of Appeals decision of September 23rd in the Barber, Good, Hines cases against the Commission on Selection and Tenure of Administrative Law Judges.

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Specifically, do you agree that we are bound by the DC Court of Appeals interpretation of DC law

[00:02:23] Speaker 01:
Your honor, to the extent that it's an issue of D. C. Law that's before this court, yes, to the extent that you're bound by, for example, the de facto officer doctrine is interpreted by the D. C. Court of Appeals.

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This court is not bound.

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In fact, in Andrade, this court took a very different perspective on the de facto officer doctrine stating

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the court should avoid an interpretation of the de facto officer doctor and it would likely make it impossible for these plaintiffs to bring their assumedly substantial constitutional.

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I want to focus on the procedural due process claim.

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Because you don't establish.

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Do process right unless you have a protected property or liberty interest.

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And doesn't the

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District of Columbia Court of Appeals decision say that under DC law, you have no right to appeal whatever and not withstanding the language of the municipal regulation.

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And doesn't that eviscerate any property right?

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Well, as we read the DC Court of Appeals,

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decision in light of the due process clause that the District of Columbia cost was required to give Judge good due process and making the determination whether or not to reappoint him.

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The second step of the analysis is whether or not the decision of cost not to

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reappoint judge good, even though that decision, in our view, violated Judge Good's right to procedural due process, that that decision itself is not appealable, making different by making cost the final decision maker.

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But the issue is that, yes, he has a property right that cost denied him his right to procedural due process as interpreted by the

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cases from this quarter by the Supreme Court.

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And the issue of Judge Good's right to procedural due process was not before the D. C. Court of Appeals.

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The narrow issue before I went to the D. C. Court of Appeals decided the case was whether or not there was part of appeals decided that ultimately cost was the final decision maker in that in that, um,

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because of the classification as an accepted service employee, et cetera, it was not reviewable in the superior court.

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And so I guess what I'm trying to get at is if that's the case, then how do you have an argument that the law creates some sort of a property interest protectable by due process

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based on the municipal regulations.

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If you can't even get court review in Superior Court based on those same regulations.

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The district court below decided that Judge Good had a property interest.

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He had a property interest in being reappointed pursuant to the regulations.

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He was doing his job properly.

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The written evidence shows that he was doing his job properly.

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And if we look at the whole history of the, for example, the process.

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I want you to focus on the DC Court of Appeals Decision Council because the district court below did not have the benefit of that decision.

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And if we're bound by that decision as a matter of interpreting DC law,

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then how can we find that there is a procedural, there's a protected property interest where the D. C. Court of Appeals says that there's no right of review at all.

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Well, as we understand the D. C. Court of Appeals decision, the D. C. Court of Appeals is not saying that Judge Good does not have a property right and reappointment.

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The D. C. Court of Appeals is saying

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that the decision of cost is final.

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It may not be reviewed in the DC Superior Court, but that's a different question, a different issue as to whether or not in making the decision as to whether or not to reappoint Judge Good, whether or not the District of Columbia is bound by the procedural due process provisions of the Fifth Amendment of the Constitution.

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And it's our analysis that there are very strict requirements

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under the United States Constitution for this process.

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And one of them is to have a fair opportunity.

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Mr. Carl, isn't your argument a little bit of a, doesn't it face a little bit of a chicken and egg problem even on its own terms?

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I take it you're relying on the regulation that says that cost shall reappoint the ALJ if it finds that the ALJ has satisfactorily performed

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the responsibilities.

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And it's your position that he satisfactorily performed his responsibilities and that therefore he was entitled to reappointment.

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And that entitlement is what you point to as creating an expectation, property interest.

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Is that right?

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Yes, Your Honor.

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And the difficulty is that what's at issue here is whether he satisfactorily performed the responsibilities.

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And I take it your position on that is

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that you would distinguish his performance of the responsibilities of the ALJ role from the kinds of things that are raised in the Adams report.

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And that those things don't, in your view, go to the heart of the ALJ role.

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Those are frictions, interpersonal disagreements within the office.

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Is that right?

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That's correct, Your Honor.

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And it seems to a large extent to be office politics.

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And if, once these accusations, these charges were made against Judge Good, that he was entitled to an opportunity to respond, he was entitled to full notice.

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What he did have before the in person meeting.

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He did have the Adams report, right?

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He had a couple weeks before it had hundreds of pages of attachments.

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He wasn't allowed to cross examine Adams or any of the other people who provided statements against him.

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Most of us double hearsay.

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certainly entitled to no evidentiary value.

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He was able to read the Adams report and he was able to give his own version of what occurred in each of those instances or whether they didn't occur.

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Is that right?

[00:09:38] Speaker 01:
Not really, Your Honor.

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He only had a very limited opportunity to

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speak to tell his story, but he was denied the opportunity to, for example, to put on witnesses or to cross examine any of the people who made the statements against them.

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And one of the best examples becomes the minus of Judge Goods, a white guy.

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Well, they accused him of racism.

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Well, his wife's African-American.

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If his wife had been able to testify, I expect she would have testified.

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No, he's in fact not racist.

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I didn't see in the record one way or the other.

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Did he ask to bring any other witnesses other than himself?

[00:10:18] Speaker 01:
Yes, he did.

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He asked for witnesses.

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He asked for the opportunity to put on witnesses.

[00:10:23] Speaker 04:
Where is that in the record?

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I'd like to find that.

[00:10:27] Speaker 01:
I don't remember the precise number of the complaint, but the records are in there where his attorney in June of the 17, at the end of June, asked for the right to cross-examine and to present witnesses.

[00:10:40] Speaker 04:
The response from cost was... Is this after the in-person meeting?

[00:10:45] Speaker 01:
Well, this was...

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after Judge Good got a copy of the report with the charges against him.

[00:10:52] Speaker 04:
But before the in-person meeting?

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It was before that meeting and the boss initially took the position and set forth in Judge Adams' letter that in fact Judge Good was not entitled to any sort of procedural due process.

[00:11:08] Speaker 04:
I read that he said he wasn't entitled to process, but he also was given some version of process, an in-person opportunity to himself testify.

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And he had counsel and counsel argued.

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And I'm just interested if there's anything you can point to in the record where he asked before coming to that meeting, he said, I'd like to bring my wife, I'd like to bring other employees or anyone.

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And I didn't see that, I did see in the complaint that he said I was denied an opportunity to do that.

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But I'm wondering if there is in fact any affirmative request on his part that we can look to.

[00:11:49] Speaker 01:
There was a request to present witnesses and there was a request for all the documents on which that 35 page report replied because there was essentially double hearsay.

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And in order to find out the truth, certainly in the Anglo-American common law tradition, we rely on cross-examination to get to the truth that he was denied that opportunity.

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A large part of what Judge Goodwin wanted to do was to cross-examine some of these witnesses who were making charges that he was completely unaware of and that were filtered through the staff member who worked for

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for Judge Adams and all of a sudden it's presented or nearly very little of which Adams has any personal knowledge about its hearsay collected.

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Maybe the gossip in the halls, part of its office politics, part of its a dispute.

[00:12:50] Speaker 04:
So if you could, maybe when you're posing counsel, if you could point me during rebuttal to where in the record I could find evidence of his request that he wanted to bring witnesses and that that was denied.

[00:13:09] Speaker 04:
Yes.

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That would be helpful to me.

[00:13:12] Speaker 01:
If there are no further questions, I see that amount of time.

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And the point I wanted to get to was

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in terms of the.

[00:13:23] Speaker 03:
Before you go, if it's okay with Judge Pillard, I have a couple questions, a couple on whether there is a due process, right?

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And then one question on if there is a due process, right?

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What's the nature of the impartial decision-maker that Good would have been entitled to?

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So the two questions about whether there is a writer.

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are this.

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We have a case called Block Yellow CH that talks about how if there's unfettered discretion on whether to hire or retain, then there is no property interest.

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And it says you need to look to the regulation's substantive predicates in order to figure out whether there's something other than unfettered discretion.

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And that's even if a word like shall is in.

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So what would you say were the substantive predicates in DC's regulations that bound the decision makers in this case?

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I think in this case, it's the use of the word shell and the idea that what the council wanted to do was to eliminate office politics and personality disputes

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and consideration if you're doing you meet the objective requirements of your job.

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That's so assume I don't think shall gets you all the way there.

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What are the objective guidance?

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What are the limits on the decision makers discretion on the three deciders?

[00:15:06] Speaker 01:
Well, then you want to have a reason decision based on an evidence rather than double hearsay.

[00:15:13] Speaker 01:
And certainly- That goes to procedure.

[00:15:17] Speaker 03:
I'm sorry?

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That goes to procedure.

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What are the substantive predicates that bound the discretion of the deciders here?

[00:15:29] Speaker 01:
Well, the goal of the organization is to rationalize the process for deciding administrative appeals and to the extent that the reliance on

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gossip or double hearsay undercuts that goal, then I submit that that's a limitation on the question.

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And in fact, the statute is really clear.

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You've got to reappoint within 120 days period.

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And all the writings for Judge Adams say that he should be reappointed.

[00:16:03] Speaker 01:
OK, OK.

[00:16:04] Speaker 03:
What about the D.C.

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code 1609.05?

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And it says the government mentions this in its brief.

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Employees in the accepted service do not have any job tenure or protection.

[00:16:20] Speaker 03:
Was good in the accepted service.

[00:16:23] Speaker 01:
My understanding is that as an administrative law judge, he was in a separate category that was subject to or governed where the conditions of terms for his reappointment were governed by the

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that if you're doing your job right.

[00:16:40] Speaker 03:
So your argument is that he was in the accepted service, but this general statement about the accepted service is sort of preempted by a more specific regulation that you.

[00:16:51] Speaker 03:
Precisely OK, then my my last question goes to assume that I agree with you that he has a property interest and he's entitled to some version of due process and some kind of an impartial decision maker.

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I wonder at what point

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does the decision, do we look to the decision makers impartiality?

[00:17:13] Speaker 03:
This is what I mean.

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If the decision maker is biased for an arbitrary reason or a reason like race or gender or something completely arbitrary, then we could say, well, that's not an impartial decision.

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But if the decision maker is partial because the decision maker thinks that good was bad at his job,

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It's conceivable that the decision maker would have formed that opinion before this formal process began, because after all, they've worked with each other for months or years.

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And it would be odd for a colleague not to form an opinion about another colleague's job performance.

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So I guess my question is, would you concede that it's not a due process violation if

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The decision makers here were partial because they had formed opinions about how good did his job, even if those opinions were formed, at least tentatively, before this formal decision making process began.

[00:18:23] Speaker 01:
The circumstances here are that Judge Adams had in fact

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formed an opinion that Judge Good was doing a great job.

[00:18:31] Speaker 04:
Judge Adams wasn't one of the decision makers.

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He was ex officio presenting, but he wasn't one of the three.

[00:18:40] Speaker 01:
He was there when they deliberated.

[00:18:42] Speaker 04:
I understand that.

[00:18:43] Speaker 04:
I'm just trying to clarify.

[00:18:44] Speaker 01:
They were deliberating.

[00:18:46] Speaker 04:
I understand.

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I understand that he was there and that he wrote this long letter, but he wasn't one of the three cost members who could vote on this.

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only one of the cost members was actually legitimately on the board.

[00:19:01] Speaker 01:
And when you think in terms of the decision making process with the group, when you have somebody in there who's influential.

[00:19:08] Speaker 04:
When you say legitimately on the board.

[00:19:11] Speaker 01:
Well, under the Judge Williams appointment had expired.

[00:19:16] Speaker 01:
Oh, right.

[00:19:17] Speaker 01:
And the other there was only one member of cost.

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And they're exercising this authority to deny.

[00:19:25] Speaker 04:
Right, so that's your point that nobody was validly appointed or authorized because the terms had expired.

[00:19:31] Speaker 01:
Yes, Your Honor.

[00:19:32] Speaker 01:
And so in terms of the mix, well, who's really a decision maker, who's got the power?

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And when you have a group process for decision making, and we've all seen this, then there's a give and take.

[00:19:45] Speaker 01:
But you can't separate out one member's

[00:19:51] Speaker 01:
perhaps inappropriate.

[00:19:52] Speaker 04:
All right, Mr. Carl, we've we've taken you long over your time, but we will give you two minutes for rebuttal.

[00:19:58] Speaker 01:
Thank you.

[00:20:00] Speaker 04:
We'll hear from his Anderson.

[00:20:19] Speaker 05:
Good morning, Your Honor.

[00:20:20] Speaker 05:
Stacey Anderson on behalf of the District of Columbia Police.

[00:20:24] Speaker 05:
We focused this morning on the due process claim, so I would like to address some of the court's questions that they had for my friend across the aisle.

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I do believe that the DC Court of Appeals opinion does foreclose relief on the property interest claim.

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The court focused in that case in part on the fact that Mr. Good was within the accepted service and employees within the accepted service generally don't have job tenure and protection.

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Now in this case, to be sure, Mr. Good was in a subcategory of a statutory officeholder.

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That gives him one protection, and that protection is not to be terminated without cause during his tenure.

[00:21:04] Speaker 05:
But in this case, we don't have that situation.

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What we have is him applying for a reappointment.

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And the statute is clear that reappointment decisions are not the same as removals or discipline.

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So as a statutory office holder, I think the statute is clear, even in that context, that he had no job tenure or protection beyond the term of his appointment.

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So that, I think, is at the heart of whether or not there's a property interest in this case.

[00:21:30] Speaker 04:
Beyond that.

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I understand your position.

[00:21:33] Speaker 04:
So if there were an ALJ who had an unblemished record and everybody conceded that the person was qualified for the job and was doing a great job on the bench, off the bench, and that person was coming up for renewal, but there was a claim by an anonymous

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colleague that that judge had assaulted the colleague in the in the parking lot.

[00:22:00] Speaker 04:
It is the district's position that that that individual would have no right to any kind of process to challenge that simply because it's a privilege to be in the job and if if the

[00:22:18] Speaker 04:
cost in its wisdom decided that it wanted to credit that.

[00:22:22] Speaker 04:
It could do that.

[00:22:23] Speaker 05:
You're right, Your Honor.

[00:22:23] Speaker 05:
I mean, again, there's two separate questions at play here with what you're asking, or two separate points.

[00:22:30] Speaker 05:
No, I think as a matter of due process, because he has no property interest, he would not have a due process protection in that circumstance.

[00:22:37] Speaker 05:
But you look at the regulations, and clearly here we have set up a regulatory scheme where there are some protections.

[00:22:42] Speaker 05:
He would have a right to, again, respond in writing to the recommendation of the chief ALJ,

[00:22:48] Speaker 05:
he would have a right to appear at a meeting before the commission to give his side of the story.

[00:22:53] Speaker 05:
So due process aside, there are some protections here, but the key here is that there's no constitutional violation in this case that would support a 1983 suit against the district.

[00:23:06] Speaker 04:
Tell me about your position on the First Amendment claim.

[00:23:12] Speaker 04:
I take it that Mr. Good is not claiming speech-related retaliation, but associational retaliation.

[00:23:21] Speaker 04:
Is it your view that the threshold issues of public concern and speaking as a citizen on public concern don't

[00:23:29] Speaker 04:
Don't bear on that because it's associational, not speech.

[00:23:33] Speaker 04:
How should we think about that?

[00:23:34] Speaker 05:
I think the way you should think about that, Your Honor, is not looking at the label that was given in the complaint.

[00:23:38] Speaker 05:
I think you look at what the allegations are here.

[00:23:41] Speaker 05:
He really isn't saying that he was terminated simply because he was a member of the Union.

[00:23:45] Speaker 05:
But rather his allegations focus on his actions and conduct and informing the union or, you know, and advocating for the formation of the union.

[00:23:53] Speaker 04:
But if he doesn't argue that his advocacy in that role was a cause, then why should we reach that?

[00:24:01] Speaker 04:
Why shouldn't we just look at the associational issue as the only issue that's pressed?

[00:24:06] Speaker 05:
I mean, again, I don't want to give too much away here, but I think if you do look at the complaint, especially with respect to the principal ALJ position that he objected to, that really is a speech-based claim of retaliation as opposed to simply association.

[00:24:19] Speaker 05:
Again, if the court wants to cabin the question to whether or not, or to the issue of whether or not it's simply an associational claim, then I think the key to resolving that issue is the fact that he hasn't established causation, and we rely on the

[00:24:33] Speaker 05:
Public Employee Relation Board decision as an estoppel, a collateral estoppel to that issue.

[00:24:39] Speaker 05:
There, the board squarely considered the question of whether anti-union animus was a motivating factor in Chief ALJ Adams' recommendation not to reappoint and concluded it was not.

[00:24:50] Speaker 05:
And this was after Mr. Good had a full and fair opportunity to participate in that litigation.

[00:24:54] Speaker 04:
That seems extraordinary to me, that we as a federal court

[00:24:59] Speaker 04:
would be stopped by an administrative procedure.

[00:25:04] Speaker 04:
Did he have subpoena power?

[00:25:06] Speaker 04:
Yeah, I believe so, Your Honor, certainly.

[00:25:08] Speaker 05:
Could he appeal that?

[00:25:11] Speaker 05:
Yes, they could have appealed that, certainly.

[00:25:13] Speaker 05:
It would have gone directly to the Court of Appeals, I believe.

[00:25:18] Speaker 05:
If not through the Superior Court, then the Court of Appeals.

[00:25:20] Speaker 05:
And I apologize.

[00:25:21] Speaker 03:
I apologize for interrupting.

[00:25:23] Speaker 05:
No, no, it's OK.

[00:25:23] Speaker 05:
But no, he certainly had an appeal right for that.

[00:25:25] Speaker 05:
Absolutely, Your Honor.

[00:25:28] Speaker 05:
And again, at the time that was filed in July of 2017, Mr. Good was president of the union.

[00:25:35] Speaker 05:
So he was kind of the driving force behind that litigation.

[00:25:39] Speaker 05:
So he was in privity with the union at that point.

[00:25:41] Speaker 05:
And there's no allegation here that he wasn't adequately represented by the union.

[00:25:45] Speaker 05:
But getting back to your question, Judge Pillard, so the DC Court of Appeals would give that preclusive effect.

[00:25:51] Speaker 05:
And it meets the standard that a federal court would give an administrative decision, preclusive effect,

[00:25:55] Speaker 05:
Well, he appeals it to the D.C.

[00:25:57] Speaker 05:
Court of Appeals, which would give it preclusive.

[00:26:00] Speaker 05:
I'm saying I'm saying in another case, this administrative decision would have preclusive effect, for example, in the civil suit, the Superior Court.

[00:26:07] Speaker 05:
In other words, this this decision meets the criteria for giving an administrative decision preclusive effect.

[00:26:12] Speaker 05:
And because the D.C.

[00:26:13] Speaker 05:
Court of Appeals would give it preclusive effect, this court, I think, is bound to as well.

[00:26:18] Speaker 04:
Do we have to go there?

[00:26:19] Speaker 04:
I mean, why don't we just look at the complaint and ask whether it states a first amendment?

[00:26:24] Speaker 04:
Looking at the complaint, your honor, I think what would you be your best position on why it doesn't?

[00:26:29] Speaker 05:
Again, I don't think he's alleged facts that established beyond the preclusive effect of the decision.

[00:26:33] Speaker 05:
He hasn't alleged facts that established causation.

[00:26:35] Speaker 05:
I mean, if you look at whether or not there was an inference of retaliation based on his union membership, we could look at the history of Chief Judge Adams relationship with Mr. Good in terms of the fact that he

[00:26:47] Speaker 05:
gave him very good employment evaluations.

[00:26:50] Speaker 05:
The fact that he promoted him during his tenure.

[00:26:52] Speaker 05:
And this was all after Mr. Good had been an active member in the union.

[00:26:56] Speaker 05:
So that's inconsistent with the notion that now all of a sudden we're going to retaliate for his union membership and deny his reappointment.

[00:27:03] Speaker 04:
What about retaliation if your characterization rather than Mr. Good's is accepted that it's in response to his, not just his union membership and his claim that there should be process on the

[00:27:18] Speaker 04:
the ALJ, but that he was opposed, he continued to be opposed to the establishment of that principal ALJ position, and that the timing of the Adams letter, that often when we're looking at the pleading stage at causation, we look at things like temporal proximity.

[00:27:40] Speaker 04:
And how would you respond to whether this complaint, if construed to raise a speech claim,

[00:27:47] Speaker 04:
doesn't nonetheless, doesn't state a claim of retaliation because there's no causation given the temporal proximity.

[00:27:55] Speaker 05:
Yeah, and I agree that the temporal proximity is certainly close, although I think it's outside of the bound, you know, on the outer bounds of that two to three month window that we often look at in these cases.

[00:28:06] Speaker 05:
But I do, again, think that- Wasn't it all sort of simultaneous?

[00:28:10] Speaker 05:
I mean, the ultimate recommendation didn't come down until June.

[00:28:15] Speaker 05:
But it was ongoing during this period.

[00:28:16] Speaker 05:
So I take your honor's point.

[00:28:19] Speaker 05:
But again, I think looking at the allegations in the complaint, again, it's just not enough to state a plausible claim of retaliation.

[00:28:29] Speaker 04:
And assuming it's speech-based, then there is a threshold question about speaking as a citizen on a matter of public concern and what's your best

[00:28:39] Speaker 04:
authority that it's not, speaking as a citizen on a matter of public concern.

[00:28:43] Speaker 05:
Certainly.

[00:28:43] Speaker 05:
I would turn to the OH Establishment Act, which puts squarely within the realm of responsibilities for an administrative law judge.

[00:28:53] Speaker 05:
to weigh in on management decisions, even where in the area of personnel matters.

[00:28:59] Speaker 05:
So it was within his job requirements to express opinions about the creation of this new position.

[00:29:07] Speaker 05:
And so I would say that he was not speaking as a citizen in that context, but that it was within the scope of his employment as part of his duties.

[00:29:15] Speaker 05:
But beyond that, I also question whether this is an issue of public concern.

[00:29:19] Speaker 05:
It's a single position within a large administrative agency.

[00:29:23] Speaker 05:
It deals with the personnel matter.

[00:29:24] Speaker 05:
And again, I'm not clear from the record the objections, whether it was to the fact that it was ALJ Yonner that was being named to the position or the position itself.

[00:29:33] Speaker 05:
So, you know,

[00:29:35] Speaker 05:
All of those things, though, are not within the realm of general public interest.

[00:29:41] Speaker 05:
And so I would say that neither of those requirements are satisfied with respect to the speech-related First Amendment claim.

[00:29:48] Speaker 05:
And then, Judge Pillard, I just wanted to address one question that you had asked about whether or not Mr. Good was

[00:29:54] Speaker 05:
the opportunity to call witnesses.

[00:29:57] Speaker 05:
They say in our reply brief that we've conceded that point, and I just want to make clear the district's position.

[00:30:02] Speaker 05:
What I've conceded is the complaint alleges that he was not allowed to call witnesses and cross-examine witnesses, as we must deal with this stage of 12b6 dismissal.

[00:30:11] Speaker 05:
But as a matter of fact,

[00:30:13] Speaker 05:
I'm having reviewed the administrative record and having handled the administrative appeal myself.

[00:30:18] Speaker 05:
The district does not concede the question of whether or not he called with requested to call witnesses that witnesses were present other than himself who testified, and he was denied the opportunity to cross examine witnesses.

[00:30:30] Speaker 05:
Nor do we concede that he asked that the commission make available certain witnesses for questioning.

[00:30:37] Speaker 05:
Um, and I don't believe you'll find in the record, your honor, in this case where that's conclusively resolved, but I just want to be clear.

[00:30:43] Speaker 05:
The district does not concede that point.

[00:30:47] Speaker 05:
Your honors have no further questions.

[00:30:49] Speaker 05:
We would ask the court of firm.

[00:30:52] Speaker 05:
Thank you.

[00:30:53] Speaker 05:
Thank you.

[00:31:00] Speaker 04:
Mr. Carl, you have, if you, if you would like them, you have two minutes for a bottle.

[00:31:10] Speaker 01:
With respect to Your Honor's request for citations, citations that we rely on are in the amended complaint 116 and I guess through 123 and then 137 on the question of what requests were made for, you know, for additional due process rights and the right to present witnesses and, you know,

[00:31:39] Speaker 01:
There was also a citation in the amending complaint that the judge had and said, no, you're not entitled to any procedural process right off the bat.

[00:31:49] Speaker 01:
So that was their initial position.

[00:31:52] Speaker 01:
If I may speak briefly to the question of the collateral estoppel, there are two parts to the PIRB decision.

[00:31:59] Speaker 01:
And what was presented, introduced to the district court was the final decision, but not the hearing examiner's decision.

[00:32:08] Speaker 01:
But the point is, first of all, that Judge Good won a part of the perp hearing, and he won the part that says that cost engaged in unfair labor practice.

[00:32:24] Speaker 01:
And so if we're looking at collateral stopple, then that would be certainly an issue, too.

[00:32:30] Speaker 04:
Right.

[00:32:30] Speaker 04:
We're aware of that.

[00:32:31] Speaker 04:
But your position is that this is not speech based as such.

[00:32:36] Speaker 04:
It's not subject to the speaking as a member of the public on a matter of public concern.

[00:32:42] Speaker 04:
It's an associational.

[00:32:43] Speaker 01:
That's right, Your Honor.

[00:32:45] Speaker 01:
And what the district has done in their arguments is they've tried to take what is

[00:32:50] Speaker 01:
Judge Good's union advocacy, his objections to the pre-selection of a specific candidate, his objections to the violation of the collective bargaining agreement, and they're trying to turn that into unprotected speech.

[00:33:04] Speaker 01:
And if you take the district's argument to its logical conclusion, then no speech is going to be

[00:33:12] Speaker 01:
protected by the first amendment.

[00:33:16] Speaker 04:
I'm sorry, his substantive objection, I know he had a procedural objection at the outset to the creation of the new position because he said that was something that had to be negotiated with the union.

[00:33:25] Speaker 04:
And then his substantive objection, as you just said, was to the pre-selection of the particular candidate that was Judge Gianna?

[00:33:32] Speaker 01:
It was the objection to the specific appointment

[00:33:35] Speaker 01:
was really a preselection issue that was selection of the union contract.

[00:33:41] Speaker 04:
And was that a union opposition or was that Mr. Good's professional opposition?

[00:33:48] Speaker 01:
No, it was a union opposition.

[00:33:50] Speaker 04:
The union was opposed to the selection of Judge Yonner.

[00:33:53] Speaker 01:
Yes, Your Honor.

[00:33:54] Speaker 01:
And so it kind of tied in with that is the discussion he has, Judge Good has in March and early April,

[00:34:02] Speaker 01:
of 2017, which he's told that, well, we might have a pro quo.

[00:34:08] Speaker 01:
If you back down.

[00:34:09] Speaker 04:
All right.

[00:34:10] Speaker 04:
We've read the record and we're familiar with that.

[00:34:13] Speaker 04:
I don't mean to cut you off, except that we are over over time.

[00:34:16] Speaker 01:
And I think there are no further questions.

[00:34:18] Speaker 01:
Thank you, Your Honor.

[00:34:19] Speaker 04:
The case is submitted.

[00:34:20] Speaker 04:
Thank you.