[00:00:00] Speaker 00: Case number 24-71-68. [00:00:03] Speaker 00: Eric Flannery and Ring Flannery Restaurant, LLC, trading as the board to balance. [00:00:10] Speaker 00: Versus Mark Eckenweiler in his personal capacity at out. [00:00:14] Speaker 00: Mr. Rosenvall for the balance. [00:00:16] Speaker 00: Mr. Mendez for the appellees. [00:00:18] Speaker 05: Good morning, Your Honor. [00:00:19] Speaker 05: May it please the court, David Rosenthal on behalf of Eric Flannery and the Big Board restaurant. [00:00:23] Speaker 05: I'd like to reserve three minutes for rebuttal. [00:00:25] Speaker 05: Mr. Flannery exercised the quintessential First Amendment right of criticizing government policy. [00:00:31] Speaker 05: He spoke out on social media, gave interviews, filed a lawsuit and engaged in civil disobedience to express his views. [00:00:38] Speaker 05: The neighborhood commissioners took notice. [00:00:39] Speaker 05: In response to Mr. Flannery's speech, [00:00:42] Speaker 05: Defendant Eckenweiler said, quote, some of the things he said publicly, we should go ahead and protest the license. [00:00:48] Speaker 05: Those are defendant Eckenweiler's own words, specifying the specific form of retaliation the commissioners would take because of what Mr. Flannery said. [00:00:56] Speaker 05: Two days later, the full commission voted in lockstep to do just that. [00:01:00] Speaker 05: District court agreed that plaintiffs alleged the first two elements of the First Amendment retaliation claim, finding some protected expression and retaliation in the form of what the district court found to be a, quote, flimsy and unsupported liquor license protest. [00:01:13] Speaker 05: But that court dismissed at the pleading stage on causation. [00:01:16] Speaker 05: Under Mount Healthy's substantial factor causation standard, the court erred by excluding Mr. Flannery's speech as a substantial or motivating factor for defendant's retaliation and miscategorized other protected expressions. [00:01:28] Speaker 05: for both of those reasons that special should be reversed. [00:01:32] Speaker 01: Well, let's think about the temporal proximity of the statements when you first exercise in the First Amendment rights and then there's a suspension and then there's a renewal because it looks like the district court is saying that the arguments are flimsy based on the fact that there was a violation of the mandate for the mask and the vaccine. [00:01:53] Speaker 01: So [00:01:54] Speaker 01: help us get to but for in terms of the district court's analysis because the district court doesn't seem to think that there's a but for cause. [00:02:02] Speaker 05: There are a few responses on that, Your Honor. [00:02:04] Speaker 05: First, temporal proximity helps us. [00:02:07] Speaker 05: The Hamilton case from this court, 666F3D1344, talks about temporal proximity. [00:02:13] Speaker 05: There, a delay of multiple months between expression and a retaliatory act still was sufficient to give rise to an inference on causation. [00:02:21] Speaker 05: We also have the district court finding it to be flimsy and unsupported, not just based on the timing or anything else, but because [00:02:28] Speaker 05: The commissioners don't have the authority to pursue any consequences or actions against Mr. Flannery and the big board for the conduct that they pointed to. [00:02:38] Speaker 05: The commissioner's power is very different than that of say the mayor's office and the executive agencies who are allowed to enforce DC health code. [00:02:46] Speaker 05: There are only three statutory grounds on which a renewal application can be protested. [00:02:50] Speaker 05: We see those in the DC code at section 25 313. [00:02:55] Speaker 05: They cited those three sections and the district court didn't find any of them persuasive by saying that the protests of the liquor license was flimsy and unsupported. [00:03:02] Speaker 05: We also know that on the eve of a hearing where Eckenweiler and the co-commissioners were supposed to go before an adjudicator and have this protest heard, they decided to withdraw it. [00:03:14] Speaker 05: It seems like the reasonable inference that one can glean from that is because there is no substantiated, no valid justification for that protest. [00:03:22] Speaker 02: Can I ask you about the legal standard? [00:03:24] Speaker 02: So you referenced Mount Healthy, so it obviously has this burden shifting standard. [00:03:29] Speaker 02: But how would you describe what you think a plaintiff's burden at the pleading stage is? [00:03:36] Speaker 02: Is it motivating factor? [00:03:37] Speaker 02: Is it but for, or is it something else? [00:03:40] Speaker 05: The pleading stage, I think it's motivating factors, substantial factor causation. [00:03:44] Speaker 05: I think both substantial and motivating factor directly from Mt. [00:03:47] Speaker 05: Healthy. [00:03:48] Speaker 05: We see those in Gonzalez. [00:03:49] Speaker 05: We see those in Neves. [00:03:50] Speaker 05: We see those in several cases. [00:03:52] Speaker 05: It seems similar as well to the McDonnell Douglas burden shifting framework where at the pleading stage it's up to the plaintiff to show that speech or some protected expression was in fact [00:04:02] Speaker 05: a substantial motivating factor for the retaliation. [00:04:05] Speaker 02: But those arguments might be good arguments, but are you familiar with the Ways and Committees, Ways and Means Committee decision from 2022? [00:04:12] Speaker 02: We also have another case called Scahill that recite the standard in a case like this at the pleading stage as being to establish a plausible inference but for causation. [00:04:25] Speaker 02: And if you are familiar with them, is there some way you would have us distinguish those cases? [00:04:30] Speaker 05: I think a couple of responses on that, Your Honor. [00:04:31] Speaker 05: It seems like this case is often a but for causation, preserving the idea that there can be multiple substantial or motivating factors that satisfy causation. [00:04:40] Speaker 05: We see that in the Clark case from this circuit. [00:04:42] Speaker 05: Also, several of those cases cited in my friend's brief are all at the summary judgment stage, where the court's able to weigh evidence, make credibility determinations. [00:04:50] Speaker 02: Ways and Means Committee case is on a motion to dismiss. [00:04:54] Speaker 02: And it says, if it is evident from the complaint that the defendant would have taken the action, even absent the protected activity, the complaint is dismissed, even if it's a motivating factor. [00:05:06] Speaker 05: I think, at the very least, we don't have that, Your Honor, [00:05:09] Speaker 05: what's in the complaint are only statements from defendants pointing to a retaliatory motive for the protest. [00:05:15] Speaker 05: So there's certainly nothing within the four corners of the complaint that can absolve the commissioners of that retaliatory motive. [00:05:21] Speaker 05: And I think that the Sixth Circuit dealt with this fairly extensively in Cooper Rider, the case that we cited at the beginning of our opening brief. [00:05:27] Speaker 05: In footnote 13, it talked about the pleading standard. [00:05:30] Speaker 05: Superwriter there was required only to plausibly allege that his speech was a motivating factor for the enforcement action and whether or not the action would have been taken in the absence of his speech was their quote a quintessential fact question to be inquired into during the discovery process. [00:05:46] Speaker 02: Yes, if we just thought about it. [00:05:49] Speaker 02: It seems like you would say this is not one of those cases, but there could be cases where it's just sort of indisputable that even though the protected speech was a motivating factor, the government was still going to take this action against the plaintiff, even absent that speech. [00:06:09] Speaker 02: And it does seem like however we articulate this standard, it should account for that possibility, right? [00:06:16] Speaker 05: Perhaps it's possible in a different case based on the four corners of the complaint that defendants could carry their burden of showing that there is a valid justification. [00:06:25] Speaker 02: You could plead yourself out of court, basically, by including another. [00:06:30] Speaker 02: In the Ways and Means Committee case, there was a statute that required, that's what our opinion said, required the action that they claimed was retaliatory. [00:06:41] Speaker 02: And so we would dismiss because it's basically [00:06:46] Speaker 02: maybe the way to think about is, it's implausible that the defendant won't be able to show it would have taken the action anyway, something like that. [00:06:56] Speaker 05: Perhaps in a case like that, but again, as you mentioned, that's not this case in here. [00:07:02] Speaker 05: We carry our burden on showing a substantial motivating factor. [00:07:06] Speaker 05: Could the government show that the but for causation or that the only causation was a non-protectual reason or a valid justification? [00:07:14] Speaker 05: I think then we get into weighing the evidence and that's much more appropriate for summary judgment in this particular case. [00:07:21] Speaker 03: On harm, the harm alleged is [00:07:28] Speaker 03: harm to reputation, emotional distress, the expense of defending the licensing challenge, and a violation of First Amendment rights. [00:07:44] Speaker 03: Can you tell me more about those? [00:07:46] Speaker 03: Like, harm to reputation, it seems like that Mr. Flannery is openly stating his position to the extent that the ANC is [00:07:56] Speaker 03: highlighting it at all. [00:07:57] Speaker 03: I mean, I'm not sure what harms his reputation. [00:08:00] Speaker 03: Eckenweiler is in a public back and forth about attitudes about masking. [00:08:10] Speaker 03: You're not claiming there's a harm to reputation to Mr. Flannery or his restaurant from that. [00:08:15] Speaker 05: It's possible, Your Honor, I think there are a few different harms that you articulated there. [00:08:18] Speaker 05: One on harm to reputation because this commission only has three statutory bases on which they can lodge a protest. [00:08:25] Speaker 05: The idea that Mr. Flannery is reducing real property values or hurting the peace order and quiet of the neighborhood, I think that harms his reputation, the big board's reputation in ways that aren't supported by the facts of this case. [00:08:38] Speaker 03: If I live near a [00:08:41] Speaker 03: a bar in a pandemic that was drawing a lot of people who were not interested in being vaccinated or mass, that might affect. [00:08:51] Speaker 03: I might think that affected my property values. [00:08:53] Speaker 03: I might not want to live in that community. [00:08:54] Speaker 03: People moved across the country to be away from places where people were congregating who might carry contagion. [00:09:03] Speaker 03: So I'm not sure that that's a reputational injury. [00:09:06] Speaker 03: But I take your point that to the extent that there's some suggestion by the ANC that [00:09:19] Speaker 03: the big board is not in compliance more generally with quietude or traffic. [00:09:25] Speaker 03: So that's the basis for the reputational harm. [00:09:28] Speaker 05: Right. [00:09:29] Speaker 05: That's at least one of them. [00:09:30] Speaker 05: And it sounds like there'd be a lot of factual inquiry on why people moved or how the neighbors felt that we don't have here. [00:09:35] Speaker 03: Emotional distress. [00:09:36] Speaker 03: Well, the question of whether freestanding it's a harm to reputation just as a statement is further. [00:09:42] Speaker 03: Emotional distress to [00:09:47] Speaker 05: Mr. Flannery, he had to endure going through the protest process, looking at the other ones he had to hire a lawyer. [00:09:53] Speaker 03: What did that involve? [00:09:54] Speaker 03: I mean, the protest process is like if a citizen could just raise something and the ANC could, the alcohol, the AB, [00:10:06] Speaker 03: The name recently changed the. [00:10:12] Speaker 03: Inquire so is the ABC be doing an investigation that it finds doesn't affect a license is that. [00:10:20] Speaker 03: That's harm. [00:10:22] Speaker 05: It could be, I think, important on that note, Your Honor, your average citizen couldn't just show up and file a protest nor be given the same weight as one filed by the commission. [00:10:32] Speaker 05: There are only a select few people who have standing to file these petitions. [00:10:38] Speaker 05: That's DC code section 25609, where the ANC as a body has a standing or a small number of conjoining neighbors who fit these particular categories. [00:10:48] Speaker 05: So one citizen couldn't show up and lodge this protest and couldn't make flannery. [00:10:52] Speaker 05: the consequences of going through the process. [00:10:55] Speaker 03: Adjoining neighbors could. [00:10:57] Speaker 05: A certain number if they satisfy the statutory requirement but they still wouldn't be given great weight to their recommendation which only the ANC is by statute. [00:11:06] Speaker 03: And there's no there's no separate the the violation of First Amendment rights is that you know we have Kerry versus Pythus which is the importance of the constitutional right alone is not [00:11:21] Speaker 03: a compensable, but this is a distinct claim of harm? [00:11:27] Speaker 05: You have the chilling effect on speech, because if the government's threatening to take away someone's livelihood, as we saw in Cooper Rider, that's a significant harm, a significant threat that could chill both Flannery and other speech. [00:11:38] Speaker 05: You also have, I suppose, the issue of having to go through the protest process and have to hire a lawyer, pay the pocketbook expense, which is a classic [00:11:52] Speaker 05: standing injury. [00:11:53] Speaker 03: Is there an allegation that there was a lawyer hired or time spent on this process? [00:12:00] Speaker 03: I thought the ABCB sent people out and just said that there's nothing to this. [00:12:06] Speaker 03: Is there behind the scenes more that goes on? [00:12:09] Speaker 05: I don't have the record side off the top of my head, but I know in the complaint we did allege that there were legal expenses that Mr. Flannery had to pay. [00:12:17] Speaker 05: He had to hire a lawyer to engage in the mandated mediation process that the alcohol bar requires that Mr. Eckenweiler [00:12:25] Speaker 05: we allege skirted and wouldn't participate in. [00:12:28] Speaker 05: But Flannery, in good faith, followed the rules, hired a lawyer, participated in that, showed up to board hearings, including the committee meeting that we cite from November 7. [00:12:38] Speaker 05: And he also, as you mentioned, the investigators at the time called ABRA went out, staked out his property eight times. [00:12:45] Speaker 05: He had to deal with government officials and investigators at his property eight times within a month. [00:12:50] Speaker 05: And they found no violations of any of the bases for the protests, which again goes back to the pretext argument. [00:12:55] Speaker 03: And when you say had to deal with, what do you mean? [00:12:59] Speaker 05: Having non-patrons on his property there to investigate alleged violations to the extent he had to open up his kitchen or open up his restaurant to government investigators, taking up space that patrons otherwise could use. [00:13:11] Speaker 05: Perhaps having a squad of government agents around could have a chilling effect on people going to any sort of restaurant. [00:13:18] Speaker 05: We see that in other contexts quite often. [00:13:21] Speaker 05: So all of those reasons hurt his business and his business interests. [00:13:25] Speaker 03: So on the causation point, your brief insists a number of times that disobeying the vaccination mask mandate is protected speech. [00:13:43] Speaker 03: And my understanding of the law is that that's not protected speech, except insofar as the government's action is targeting its message. [00:13:55] Speaker 03: And that's O'Brien. [00:13:59] Speaker 03: The reason it's called civil disobedience is because it's disobeying the law. [00:14:04] Speaker 03: And civil disobedience is actually not First Amendment protected. [00:14:08] Speaker 03: That's a letter from Birmingham jail, right? [00:14:11] Speaker 03: I mean, people go to prison for civil disobedience, which is part of why it's powerful. [00:14:17] Speaker 05: They can, but only when government agents who have the authority to impose consequences for that conduct are the ones who actually do it. [00:14:26] Speaker 05: If the police are allowed to arrest someone, then just because someone was engaging in civil disobedience when they were arrested doesn't give you- Right, but they're allowed to take action against a restaurant if it's in violation of the law. [00:14:39] Speaker 03: It's only if the reason that the [00:14:45] Speaker 03: ABCB is acting or the ANC 6C is acting is not because of the law violation, but because of the message. [00:14:56] Speaker 03: And this is like, you know, you can have laws against, you know, open fires. [00:15:03] Speaker 03: But the reason the Texas versus Johnson law against flag burning is because it was singling out a kind of fire for its message. [00:15:11] Speaker 03: But we don't have that here. [00:15:13] Speaker 03: We don't have the law on its face singling out for message. [00:15:16] Speaker 03: And so the fact that [00:15:19] Speaker 03: The license, for example, was suspended initially because of non-compliance, admitted overt non-compliance with the law. [00:15:28] Speaker 03: That's speech protected, is it? [00:15:31] Speaker 05: It seems like we have two different scenarios here. [00:15:33] Speaker 05: We have the mayor's executive enforcement agency, DC Health, who can and did punish the big board for its disregard of the mayor's orders. [00:15:40] Speaker 05: That's why the big board paid a fine. [00:15:41] Speaker 05: That's why it was shuttered initially. [00:15:43] Speaker 05: DC Health has that authority. [00:15:45] Speaker 05: No one, not even my friend on the other side, has suggested that this commission has the authority to investigate or file a protest for the speech. [00:15:54] Speaker 03: What I'm trying to sort of focus in on is all that activity, which even in your brief to us, you characterize as protected speech. [00:16:04] Speaker 03: And that just seems to me to be a misunderstanding of the First Amendment law, unless it's being targeted because of the message. [00:16:13] Speaker 03: Setting that aside, the thing you point to, I think, correctly, focusing on is the comment by Commissioner Eckenweiler that some of the things that he said, this one line that he said at the committee. [00:16:36] Speaker 05: Some of the things we said we should protest the license. [00:16:38] Speaker 03: The committee meeting on November 7. [00:16:40] Speaker 03: And there's no allegation in the complaint that any other commissioners were at that meeting. [00:16:48] Speaker 05: I guess two responses there. [00:16:50] Speaker 05: First, just thinking quickly about the conduct, we do have Commissioner Eckenweiler talking about that Flannery was conveying a message by so-called floating the vaccine mandate, that that was an anti-vaxxer dog whistle, according to Eckenweiler. [00:17:03] Speaker 05: That conveys a message that there was an expressive component there. [00:17:06] Speaker 05: We know at least that Eckenweiler understood that way. [00:17:08] Speaker 05: Courtney also pointed. [00:17:10] Speaker 05: to Flannery's comments, to Flannery's conduct, excuse me, as a basis. [00:17:15] Speaker 05: But looking just at the speech wrong, which I think makes this an easier case. [00:17:19] Speaker 03: Just looking at the Eckenweiler comment, where he says, because of what he said. [00:17:24] Speaker 03: And again, it's agnostic. [00:17:25] Speaker 03: It could have been because of what he said about not respecting the law. [00:17:28] Speaker 03: But this is at the complaint stage. [00:17:30] Speaker 03: So we draw reasonable inferences in the plaintiff's favor. [00:17:32] Speaker 03: So he said, because of his speech, let's not renew his lawsuits. [00:17:37] Speaker 03: And this is in November. [00:17:40] Speaker 03: And what I'm asking is there's no allegations that other commissioners were at that meeting. [00:17:49] Speaker 05: We know that Courtney was there because at Appendix 9, paragraph 11, that's when Courtney said that the bad behavior in recent years should be a justification to file the protest. [00:17:59] Speaker 05: So we knew Courtney was there. [00:18:01] Speaker 05: We don't have a complete record of who was at this meeting because although DC law requires under its open meeting law that the commission keep this record, preserve a transcript, and make that available, there was none available here. [00:18:15] Speaker 05: That seems to be a spoilation issue. [00:18:17] Speaker 05: Again, if it's not there, [00:18:19] Speaker 05: were not able to confirm even though they had an obligation to let us know who was there and what they were talking about. [00:18:24] Speaker 05: It seems like that at least gives rise to the reasonable inference that is because they were talking about an impermissible motive. [00:18:30] Speaker 03: And Mr. Flannery was at that meeting. [00:18:32] Speaker 05: Correct. [00:18:32] Speaker 05: He joined via WebEx. [00:18:34] Speaker 05: Yes. [00:18:34] Speaker 03: But may not have recognized. [00:18:36] Speaker 03: ANC members. [00:18:38] Speaker 05: The record doesn't say whether he knew the appearance of all the ANC members or whether there were name tags or not. [00:18:45] Speaker 05: Again, if we had that transcript, if we had that recording, we would know DC had the obligation to preserve it, but it's not available. [00:18:51] Speaker 03: And then the plaintiff alleges that the ANC stated reasons for protesting a license were negative impact on property values, peace order and quiet, residential parking needs. [00:19:06] Speaker 03: Taken on their on their face, those you don't dispute that those are legitimate. [00:19:11] Speaker 03: Reasons not facially directed at speech. [00:19:14] Speaker 05: If true, I would understand that the DC code says that those are 3 reasons that you could protest a license. [00:19:20] Speaker 03: The DC code says that what I asked you is you can see that those are not facially speech based. [00:19:25] Speaker 05: Sure, if they're supported by justification, which here they're not. [00:19:29] Speaker 03: Even then, they would not be facially speech-based. [00:19:31] Speaker 03: I know you've alleged that they're protectual. [00:19:35] Speaker 03: But that's your burden to show that they're pretext. [00:19:37] Speaker 03: So they're facially on their face. [00:19:39] Speaker 03: Those are perfectly legitimate reasons. [00:19:42] Speaker 05: Yeah, though I think that flips the burden, if I may, Your Honor. [00:19:46] Speaker 03: Well, it's your burden to show pretext. [00:19:49] Speaker 05: to show a substantial position. [00:19:51] Speaker 05: It's the other side's burden to show at the pleading stage that it was for a valid justification that the government actions would have been taken even without protected speech. [00:20:01] Speaker 03: Well, it's first year burden to show that speech was a substantial motivating factor. [00:20:06] Speaker 03: I think you established that when you got up at the podium. [00:20:10] Speaker 03: So it's your burden to show substantial motivating factor. [00:20:12] Speaker 05: It's not our burden at this stage to rule out every possible. [00:20:17] Speaker 03: Right. [00:20:17] Speaker 03: I didn't. [00:20:17] Speaker 03: I don't think I said that. [00:20:19] Speaker 03: So it's your burden to show that. [00:20:21] Speaker 03: There are six commissioners. [00:20:24] Speaker 03: And what is the allegation that four of them were even aware of the comment that Mr. Eckenweiler made at the committee meeting? [00:20:34] Speaker 05: It's reasonable to assume that all the commissioners were present at the committee meeting, even though we don't have that record. [00:20:39] Speaker 05: It's reasonable to assume that they would appear. [00:20:41] Speaker 05: They all then presumably heard Ekenweiler say for this reason, we should protest the license. [00:20:46] Speaker 05: They all voted in lockstep two days later to in fact protest the license. [00:20:50] Speaker 05: That protest, according to the district court's finding, was unsupported and flimsy. [00:20:54] Speaker 05: ABRA the investigatory unit went out and looked at the big board eight times found no evidence of any of those violations. [00:21:00] Speaker 05: So it seems like the vote in lockstep two days after the comment as well as the fact that there is no justification for it as well as the withdrawal of the protest on the eve of the hearing all supports the reasonable inference at the bleeding stage that they were aware of the statements that Eckenweiler was pointing to especially as he was the lead commissioner on the protest and they voted consistent with that recommendation which is the retaliation problem. [00:21:21] Speaker 03: So do we know that the entire commission attends every, all the committee meetings? [00:21:26] Speaker 03: Like when I was on a faculty, committees were usually a sub part of the body and would bring things to the body. [00:21:34] Speaker 03: So do we, do we know that the, is it fair to assume as you suggested that the entire commission membership was at the committee meeting? [00:21:45] Speaker 05: I think it's reasonable to assume that they were particularly without a record of showing who it was when DC didn't keep that record. [00:21:51] Speaker 05: And to the extent in discovery, we were able to find out who was there. [00:21:55] Speaker 05: I think that would be a very relevant fact. [00:21:57] Speaker 05: At the very least, we know Eckenweiler was there, and Courtney made the bad behavior comment at that meeting before filing the protests. [00:22:04] Speaker 05: So we know that multiple commissioners were there, and it's reasonable then that they were influenced by Eckenweiler's statement. [00:22:10] Speaker 05: Whether they were there or not, they still appointed him the lead commissioner and voted in lockstep. [00:22:18] Speaker 02: Where is the allegation? [00:22:25] Speaker 02: So I had read this that there's a first meeting where Eckenweiler makes his statement and a second meeting where they actually vote on the protests. [00:22:36] Speaker 02: That's correct. [00:22:37] Speaker 02: And I thought the allegation was that Courtney's statement about bad behavior was made at the second meeting. [00:22:45] Speaker 05: I don't know that we could know that because there wasn't a record of what was said at the 7th. [00:22:51] Speaker 05: It seems like we do at least know based on paragraph 11 that it was before the protest was filed. [00:22:56] Speaker 05: The only thing we have within the four corners of the pleading about what happened before the protest was filed was on that November 7th meeting where Eckenweiler made his first speech, we should protest the license comment. [00:23:08] Speaker 05: That was the only one that Mr. Flannery was at. [00:23:12] Speaker 03: But I'm reading the complaint actually the same way that Judge Garcia is suggesting, which is that he pushed the ANC to vote and file the protest. [00:23:25] Speaker 03: And the vote happened at the actual... [00:23:28] Speaker 03: ANC meeting on the 9th. [00:23:31] Speaker 05: We know the vote happened on the 9th. [00:23:32] Speaker 05: Perhaps even if the record is unclear as far as when Courtney pushed for it, we know he pushed for it to the ANC. [00:23:39] Speaker 05: A clear record thanks to factual discovery that had meeting minutes or record of that November 7th hearing would illuminate exactly what was said when. [00:23:47] Speaker 05: We know that both of them expressed that retaliatory motive before the vote, whether it was on the 7th or the 9th of November. [00:23:56] Speaker 02: But there's no, is there an allegation in the complaint about who the members of the alcoholic beverage licensing committee are? [00:24:05] Speaker 05: Standing here at the podium, I do not recall whether or not they are identified. [00:24:10] Speaker 05: It seems like their identity became less relevant when the commission went through the protest on the eve of that alcohol board hearing. [00:24:19] Speaker 05: So, you know, they weren't forced to vote on the protest. [00:24:22] Speaker 02: However, they would have been the adjudicatory body and they're the ones who send out- The filing of the protest was voted on by the entire ANC 6C, right? [00:24:32] Speaker 02: That's correct, unanimously. [00:24:38] Speaker 01: Okay. [00:24:39] Speaker 01: Well, the appellees are arguing there's nothing expressive about violating emergency orders because you have to have the observer understand what was intended by the message. [00:24:49] Speaker 01: So what are you suggesting is conveyed when you disregard a mask or a vaccination mandate? [00:24:57] Speaker 05: First, in the previous call, we don't necessarily need that because we have the speech. [00:25:01] Speaker 05: But if we're just looking at the expressive conduct prong, it seems that Mr. Flannery's conduct conveyed a message because Eckenweiler told us so. [00:25:10] Speaker 05: He said at 12 paragraph 35, [00:25:13] Speaker 05: that he understood the big board's conduct to flout the vaccine mandate to be anti-vaxxer dog whistling. [00:25:18] Speaker 05: That dog whistling is a communicative message. [00:25:22] Speaker 05: And under Hurley, it doesn't matter that the specific intended message is communicated, but just that a message is communicated. [00:25:29] Speaker 05: It seems like also in the cultural context that we find it, as we cite several examples in our opening brief at page 21, our apply brief at page 12, that the public writ large understood decisions around masking and checking vaccination cards. [00:25:43] Speaker 05: to be a form of political protest or to be a political statement? [00:25:48] Speaker 02: Sorry, please. [00:25:49] Speaker 01: Oh, that's OK. [00:25:49] Speaker 01: But do we need to look at context? [00:25:51] Speaker 01: For example, let's say you have an employer who's in the square building and they have a mandate. [00:26:00] Speaker 01: If you walk into that building and you're not wearing a mask, you're not vaccinated, is that mere fact [00:26:09] Speaker 01: you protesting and that being your expressive conduct in that regard, that that automatically means that you're against masking and vaccination just because you walked into the building where an employer has that mandate? [00:26:23] Speaker 01: Should we just make that assumption? [00:26:25] Speaker 05: It seems that in Congress it was taken as much. [00:26:28] Speaker 05: Several congressmen were fined for doing just that. [00:26:31] Speaker 05: But even so, here's the big boards conduct. [00:26:32] Speaker 03: But the fact that they were fined doesn't make it expressive. [00:26:35] Speaker 03: It makes it a violation of the mandate. [00:26:37] Speaker 01: And what I'm getting at is you could have walked into that building not wearing your mask because you have a religious reason for not doing so. [00:26:46] Speaker 01: You have a medical reason for not doing so. [00:26:49] Speaker 01: And the same thing with the vaccinations. [00:26:50] Speaker 01: So just merely walking in, is that necessarily expressive conduct? [00:26:56] Speaker 05: Well, that's theoretically possible. [00:26:58] Speaker 05: Again, we're at the pleading stage in here. [00:26:59] Speaker 05: It's the big board's conduct that's at issue. [00:27:01] Speaker 05: It's not one person walking in without a mask. [00:27:03] Speaker 05: It's the decision not to check vaccine cards and not to impose that masking requirement throughout the restaurant, where there were potentially dozens of folks all similarly situated that would have conveyed a message to the outside. [00:27:15] Speaker 05: And at least it conveyed a message to Echo while there. [00:27:18] Speaker 05: We have that fact in the record that it specifically communicated to him. [00:27:21] Speaker 02: We would typically ask, and I think you've agreed with this basically, which is you look at the conduct and you ask whether a reasonable observer would understand that they're intending to communicate something. [00:27:35] Speaker 02: Yes, step two, the Johnson analysis plus early. [00:27:38] Speaker 02: So how do you conceive of the conduct? [00:27:40] Speaker 02: Because one way of thinking about this is that our objective observer would just be sort of on the street and see a restaurant with a bunch of people without masks. [00:27:51] Speaker 02: And they might not even know that's due to any conscious decision by the restaurant. [00:27:56] Speaker 05: Even if that is possible, it seems hard to know what the public might think without statistics, without surveys, which aren't necessary at the pleading stage. [00:28:04] Speaker 05: But here we know that Eckenweiler knew what it meant because he tweeted about it. [00:28:07] Speaker 05: We also had the contact. [00:28:08] Speaker 02: So apart from Eckenweiler's tweet, which is [00:28:12] Speaker 02: a pet responding to a big board tweet. [00:28:15] Speaker 02: So I don't think we know that that's just about conduct. [00:28:19] Speaker 02: It just seems like, um, so fair. [00:28:23] Speaker 02: Rumsfeld case says, [00:28:26] Speaker 02: The conduct here, all you would know is that the law school's interviewing, holding military recruiter interviews off campus. [00:28:36] Speaker 02: That could be because the law school's opposed to military recruiting. [00:28:39] Speaker 02: It could be because the classrooms are full. [00:28:42] Speaker 02: It could have been the military's choice. [00:28:45] Speaker 02: A reasonable observer wouldn't know. [00:28:47] Speaker 02: And it kind of just seems, by pretty direct analogy, maybe it's the restaurant patron's choice, maybe the [00:28:56] Speaker 02: Tavern thought it's a good business decision. [00:28:59] Speaker 02: And then there's a long list of other reasons they might not be enforcing a mandate. [00:29:03] Speaker 02: And one thing on that list would be they opposed the mask mandate, but that's just like fair. [00:29:13] Speaker 02: And that would seem to indicate this is not inherently expressive. [00:29:17] Speaker 05: Sure, but the cultural context adds enough to show that it's expressing a message, I suppose is a question that the court would have to grapple with if it decided on this allegations about that. [00:29:27] Speaker 02: Right. [00:29:27] Speaker 02: So, so it just seems a matter of common sense. [00:29:31] Speaker 02: There's a restaurant with not a lot of people wearing masks, maybe. [00:29:36] Speaker 02: Just assume for the moment it's the restaurant's choice. [00:29:39] Speaker 02: There's a lot of reports about restaurants not wanting confrontation with patrons, about maybe them thinking maybe they just don't care enough and they're lazy or they want to avoid confrontation and keep patrons happy. [00:29:54] Speaker 02: It's quite a leap to get to. [00:29:57] Speaker 02: I can tell from this group of people that the tavern is trying to express a statement here. [00:30:06] Speaker 05: Isn't it? [00:30:06] Speaker 05: I suppose that's possible. [00:30:07] Speaker 05: It seems also that's guessing at what people would think, which seems like that gets into a fat question as if it is the pleaing question. [00:30:15] Speaker 05: But even so, understanding the argument in our breach there, we have the speech component, which is probably the clearest path. [00:30:22] Speaker 05: And then the court wouldn't have to [00:30:24] Speaker 05: deal with the expressive conduct question. [00:30:26] Speaker 05: I think perhaps to Judge Pillard's concern, earlier I know you mentioned the idea of someone being punished for violating a rule. [00:30:34] Speaker 05: What's wrong with that? [00:30:35] Speaker 05: It seems like who's punishing and why? [00:30:37] Speaker 05: Just to keep it counterfactual, if someone was cited for trespassing while blocking a building's entryway during a protest, that wouldn't permit the licensing board to then open an investigation into that protester's business. [00:30:49] Speaker 05: months later for that reason. [00:30:51] Speaker 03: One of the strongest kinds of evidence to show that the application of the law was for retaliatory reasons rather than for the [00:31:01] Speaker 03: underlying conduct that was cited as the reason for the protest and the investigation is to look at similarly situated entities. [00:31:10] Speaker 03: And here the ANC minutes of the November 9th meeting show that three [00:31:19] Speaker 03: drinking establishments, there were protests against them and there was inquiry. [00:31:25] Speaker 03: And those were the three that were along that same stretch of H Street and all the other ones that weren't in that really busy area were not inquired into. [00:31:36] Speaker 03: Doesn't that part of the record tend to cut the other way from the inference that you're trying to draw? [00:31:44] Speaker 05: I'd say first, I understand DCE attached that to their mission to dismiss. [00:31:48] Speaker 05: It wasn't part of the pleading. [00:31:49] Speaker 03: It's a public record. [00:31:51] Speaker 05: It's a public record, but we didn't note it at the time of the complaint. [00:31:55] Speaker 05: And I think there are questions whether the court can rely on that from a judicial notice standpoint. [00:32:00] Speaker 05: But even so, that goes to facts that, again, the court would have to weigh. [00:32:03] Speaker 05: And it sounds like if we're talking about evidence, we're talking about summary judgment on what the subjective motivations of those commissioners were, if it was retaliatory or for a different reason. [00:32:11] Speaker 05: It seems like that's an evidence question that's ripe for summary judgment consideration. [00:32:15] Speaker 03: Is there any reason that we wouldn't take judicial notice? [00:32:18] Speaker 03: I mean, there's this question about you've pleaded the actions of that very ANC. [00:32:27] Speaker 03: And this is a public record about that very ANC meeting. [00:32:32] Speaker 03: Do you have any reason to think that we couldn't take judicial notice of that or shouldn't take judicial notice of that? [00:32:38] Speaker 05: I don't know. [00:32:39] Speaker 05: I'd say at least it's a limited view of what happened with the ANC, given that we don't have the November 7th meetings or transcripts. [00:32:46] Speaker 05: So they provided a statement. [00:32:47] Speaker 05: It's not a complete record. [00:32:49] Speaker 05: It seems like a complete record would be much more helpful for it to lay. [00:32:53] Speaker 03: Right. [00:32:55] Speaker 03: I mean, you've alleged everything that you are aware of that you think is favorable. [00:32:59] Speaker 01: Right. [00:33:01] Speaker 01: Any questions? [00:33:04] Speaker 01: I would just ask, to the extent that you had any deficiencies in your complaint, is there anything else that you can allege, or is this what we should rely on that you put forward in this complaint? [00:33:16] Speaker 05: I think given the opportunity, given the additional evidence that may have been available since, the chance to replede if the court was inclined to uphold the dismissal on some ground, but not with prejudice. [00:33:30] Speaker 05: I certainly wouldn't say no to the chance to replete. [00:33:32] Speaker 05: However, if on the speech prong, that's enough to reverse right there. [00:33:36] Speaker 05: It seems like the court wouldn't have to go through that additional analysis. [00:33:43] Speaker 03: What's the dismissal with prejudice? [00:33:46] Speaker 05: A judgment was entered immediately following the order of dismissal. [00:33:50] Speaker 05: I'm sorry for not giving an opportunity to replete. [00:33:53] Speaker 05: Judgment was entered the same day, if I recall, as the dismissal order. [00:34:01] Speaker 02: And does it believe it doesn't specify whether it's with or without prejudice? [00:34:05] Speaker 05: I don't believe it says the word prejudice. [00:34:06] Speaker 05: I believe it says this is a final appeal order and then judgment followed immediately thereafter. [00:34:32] Speaker 04: Thank you. [00:34:45] Speaker 04: Good morning. [00:34:47] Speaker 04: Good morning, Your Honors. [00:34:47] Speaker 04: May it please the court. [00:34:48] Speaker 04: Chris Mendez on behalf of the commissioners. [00:34:50] Speaker 04: The big board doesn't plead the causation needed to state a retaliation claim based on the commission's unanimous vote to pursue the protest. [00:35:00] Speaker 04: Nor has the big board identified a clearly established rule to defeat qualified immunity. [00:35:05] Speaker 04: At a minimum, the complaint lacks adequate facts regarding decision-maker knowledge of protected speech by Flannery. [00:35:13] Speaker 04: The complaint generally references Flannery's tweets, media interviews, and a lawsuit. [00:35:18] Speaker 04: But that is not enough to state a retaliation claim. [00:35:21] Speaker 04: With respect to the mentions of the media interviews, there are no factual allegations anywhere to be found in the complaint. [00:35:27] Speaker 04: regarding when those interviews took place, who was the audience, or whether any of the commissioners were ever aware of those interviews. [00:35:36] Speaker 04: With respect to the lawsuit, there are no factual allegations anywhere in the complaint regarding any of the commissioners' knowledge of a lawsuit, nor does the complaint explain at any point the relevance of the lawsuit to the unanimous vote to protest. [00:35:53] Speaker 04: Now, as for Flannery's social media activity, there are no factual allegations of complaint that will suggest that at least five out of the six commissioners have knowledge of those tweets. [00:36:05] Speaker 04: And as this court noted in Jones v. Bernanke, a retaliation claim requires decision-maker knowledge of the protected speech. [00:36:12] Speaker 04: Without the knowledge of that speech, retaliation cannot be a plausible cause of the protest. [00:36:19] Speaker 04: And I do think it's worth spending a little bit of time to discuss the actual factual allegations or the complaints a little bit more specific, because what you see there is that speech isn't mentioned at all. [00:36:32] Speaker 04: Just to give a couple of examples. [00:36:34] Speaker 04: Appendix page 9, paragraph 11. [00:36:37] Speaker 04: We had my friend on the other side discuss this portion of the complaint a little bit. [00:36:42] Speaker 04: That's where one of the commissioners, Courtney, allegedly made a statement pushing for the protest because of the big board's bad behavior in recent years. [00:36:51] Speaker 02: Council, I think we could grant that they were pursuing both conduct and speech theory. [00:36:56] Speaker 02: And the best allegation for them just on speech is the one we've already talked about, which is Eckenweiler saying, just some of the things he said publicly, we should go ahead and protest the license. [00:37:11] Speaker 02: So if we inferred that the majority of the commission was aware of both that statement and Flannery's public statements, [00:37:23] Speaker 02: Do you have an argument that that allegation is not enough to get passed a motion to dismiss? [00:37:30] Speaker 04: Yes, Your Honor. [00:37:31] Speaker 04: We do dispute that a reference is appropriate here. [00:37:35] Speaker 04: But I'll put that to the side now to answer your question, Your Honor. [00:37:39] Speaker 04: The reason why it's not enough is because I do want to be crystal clear with this meeting. [00:37:43] Speaker 04: This is a subcommittee meeting that took place on November 7. [00:37:46] Speaker 04: The actual commissioner's vote was on November 9. [00:37:49] Speaker 04: These are two different groups. [00:37:51] Speaker 04: with different memberships. [00:37:53] Speaker 04: We're different individuals that are part of the groups. [00:37:55] Speaker 04: For instance, during the November 9th subcommittee, rather, the November 7th subcommittee group, we know at that time was chaired by a private citizen. [00:38:05] Speaker 04: So this is not the same as the actual commissioner's group that two days later voted to pursue the protest. [00:38:13] Speaker 02: If we just back up, right, [00:38:18] Speaker 02: It's a little, would there be more of a smoking gun than someone involved in the decision saying, let's file this because of his speech? [00:38:27] Speaker 02: Imagine this was an employment discrimination case. [00:38:31] Speaker 02: And there was a meeting where the person who's driving this decision says, let's not promote that person because he's black. [00:38:42] Speaker 02: And the defendant came in and tried to draw these adverse inferences. [00:38:48] Speaker 02: I think we would say that's a smoking gun you get through to discovery and the government can make all of these defenses. [00:38:59] Speaker 02: I'll try to turn it into a question. [00:39:02] Speaker 02: But it just feels like a smoking gun from a person who maybe not everyone's there, but this is a person who rove this process. [00:39:08] Speaker 02: There's certainly allegations to support that, right? [00:39:11] Speaker 04: Your Honor, I have two reactions to that. [00:39:12] Speaker 04: The first is what the complaint says is allegedly Ekenweiler during that November 7 subcommittee meeting said some effect that they should go ahead and file the process because some of the things he has said, I think it's notable that the complaint [00:39:26] Speaker 04: There's no specificity whatsoever. [00:39:30] Speaker 04: One minor exception with respect to what is the actual speech? [00:39:34] Speaker 04: What are the contents of the speech? [00:39:36] Speaker 04: When was the speech? [00:39:37] Speaker 04: And those are details that matter when it comes to a retaliation claim premised on protected speech. [00:39:44] Speaker 04: We just do not know. [00:39:46] Speaker 04: what Ekenweiler was referring to. [00:39:47] Speaker 04: The complaint just doesn't provide the factual allegations that would even allow for that inference. [00:39:52] Speaker 04: My second reaction to that, Your Honor, is the fact that there are no factual allegations that would even come close to suggesting that any of the other commissioners were there at the meeting, were otherwise aware of what Ekenweiler allegedly said, or whether or not the other commissioners were aware of any protected speech whatsoever on the part [00:40:12] Speaker 04: of the big board or flannery. [00:40:15] Speaker 04: And I do think it's very notable here that the complaint is very specific with respect to its allegation that Eckenweiler was there. [00:40:24] Speaker 04: It is very specific with respect to a statement that Eckenweiler allegedly made at the November 7th subcommittee meeting. [00:40:33] Speaker 04: But the complaint is silent as to the other commissioners, whether they attended the meeting or otherwise aware, as I mentioned. [00:40:41] Speaker 04: And I really do think that that silence truly speaks volumes because are given the fact that Flannery himself acknowledges that he was at that meeting. [00:40:50] Speaker 04: So if other commissioners were there, or if any of the other commissioners agreed with Eckenweiler's statement, you know, I think we would have seen that in the complaint. [00:41:00] Speaker 03: Do you disagree? [00:41:01] Speaker 03: I mean, it doesn't necessarily get to a majority, but do you disagree with [00:41:07] Speaker 03: Mr. Rosenthal's reading of paragraph 11 of the complaint as suggesting that Drew Courtney might have been at the committee meeting. [00:41:16] Speaker 03: It's ambiguous as to where that quotation comes from. [00:41:23] Speaker 03: Could have been in the hallway, could have been later, could have been at one of these meetings, but it's at least a reasonable inference that he might also have been at that committee meeting. [00:41:33] Speaker 04: I'm not sure, Your Honor, the way I read paragraphs, so on Pennix page nine, paragraphs nine to 12, my reading was that, what is a reference to the November 9th, the actual meeting that resulted in a vote? [00:41:46] Speaker 04: I did not read that as being a reference to the November 7th meeting. [00:41:50] Speaker 01: Now... Wouldn't there be just a notation somewhere about minutes or, you know, presence of persons at meetings that could be cleaned up in a minute complaint? [00:42:03] Speaker 04: We're respected November 7th or the November 9th? [00:42:08] Speaker 01: Either. [00:42:10] Speaker 04: We're respected November 9th. [00:42:12] Speaker 04: The commissioners had attached the minutes to the November 9th meeting to its motion to dismiss. [00:42:18] Speaker 04: And one thing I wanted to flag with those minutes is speech is nowhere to be found there. [00:42:24] Speaker 04: The minutes identify the three statutory bases. [00:42:30] Speaker 04: as the grounds for the protest in addition to two other businesses who also, who the commissioners also had moved to file the protest. [00:42:43] Speaker 04: And with respect to the November 7th meeting, in the reply brief, my friend on the other side is emphasizing the fact that there is a factual allegation of complaint that suggests that the commissioners have said there is no recording available. [00:43:03] Speaker 04: I do want to clarify that a bit. [00:43:05] Speaker 04: There's a few things. [00:43:06] Speaker 04: I see there's a discrepancy between what the reply brief says and what the actual complaint says. [00:43:11] Speaker 04: What the complaint says is that the [00:43:15] Speaker 04: meetings were typically recorded and this was a reference into the November 7th meeting but the reply brief says that exfoliation in fact occurred and therefore there needs to be a negative inference levied against the commissioners as a result of that. [00:43:30] Speaker 04: That seems to me to be a new allegation because the complaint says they usually are recorded doesn't say they always are recorded and in addition to that [00:43:40] Speaker 04: A negative inference. [00:43:42] Speaker 02: Right. [00:43:42] Speaker 02: So drawing favorable inferences, right? [00:43:44] Speaker 02: I think what they would argue is we've alleged what we know. [00:43:49] Speaker 02: And paragraph 45 says the committee claims no meeting notes or recordings exist for that November 7th. [00:43:55] Speaker 02: We don't have to get into spoliation to say, well, you know, Eckenweiler is the one who spoke up. [00:44:00] Speaker 02: And maybe you would assume there's at least other people on the line. [00:44:05] Speaker 02: The next allegation is that nobody spoke up to disagree with Eckenweiler. [00:44:10] Speaker 02: And so he doesn't know. [00:44:12] Speaker 02: He was on Webex. [00:44:14] Speaker 02: He doesn't know everyone else who was in that meeting. [00:44:17] Speaker 02: But he should get to discovery to find out who was there. [00:44:21] Speaker 01: And do the panelists try to get additional information? [00:44:25] Speaker 04: I think where that falls short is the fact that Flannery himself was there. [00:44:30] Speaker 04: And he has a purported direct quotation from one of the commissioners. [00:44:35] Speaker 04: So I just think that the silence on whether any of the other commissioners were there, and especially whether any of the other commissioners indicated agreement, pushed back, I think that is just a gaping hole in the factual allegations here. [00:44:52] Speaker 02: There's another, the other piece of their affirmative argument is sort of that there's these three stated reasons and then the board finds that it can't substantiate those. [00:45:02] Speaker 02: And then eventually the committee withdraws the protest. [00:45:05] Speaker 02: And they argue that that shows it is, those stated reasons are at least plausibly protectual. [00:45:12] Speaker 02: At least they were flimsy. [00:45:13] Speaker 02: What's your response to that? [00:45:15] Speaker 04: I don't think that's right. [00:45:16] Speaker 04: Much of this argument as I read the complaint is premised on the ABCRA or then what was called the ABCRA's investigation, which occurred nearly four months after the protest and during which it determined that there were no violations of the three statutory grounds. [00:45:33] Speaker 04: I think the problem with that argument there in terms of it showing any pretext here, one of the problems is the fact that the big board had nearly four months to clean up and fix whatever issues there were. [00:45:45] Speaker 04: So I'm not sure it says anything at all. [00:45:47] Speaker 02: And then when you look at the other facts- The investigation is finding sort of no ongoing violation based on their site visit. [00:45:54] Speaker 02: Yes, the site visit- Maybe something else had happened in the past. [00:45:57] Speaker 04: My understanding is it was eight site visits. [00:46:00] Speaker 04: I believe the first one was February 16th, mid-February, towards the end of February. [00:46:06] Speaker 04: They found no violations during that time. [00:46:08] Speaker 04: There's no allegations that there were any other investigations that had occurred before then. [00:46:13] Speaker 04: So what we have is a nearly four-month gap between the vote to protest, the subsequent filing to protest, [00:46:20] Speaker 04: and then the investigators taking a look at the big board what was going on. [00:46:25] Speaker 04: So I'm not sure that says anything about pretext given that the big board was well on notice beginning on November 9th that there was going to be a protest and had nearly four months to fix whatever issues they might have had at that time. [00:46:40] Speaker 04: My friend on the other side also [00:46:43] Speaker 04: focuses on the settlement negotiations, on the written protest bases to try to say this was about speech. [00:46:51] Speaker 04: But I think where that argument falls short is those factual allegations have nothing to do whatsoever with speech. [00:46:59] Speaker 04: It seemingly, for instance, Eckenweiler's discussions with Flannery and the attorneys from the other side [00:47:07] Speaker 04: If it was true that the motivating factor was speech, one would expect to see the actual discussions perhaps after the protests have something to do with speech. [00:47:17] Speaker 04: Instead, they didn't seem to be consistent with the November 12th written protest bases. [00:47:23] Speaker 03: So one of the arguments, and this hasn't been argued by the plaintiffs, but do you have a position on if they raised sort of a cat's paw theory that Eckenweiler was the one who cared? [00:47:42] Speaker 03: And assuming that we treat the comment that was pleaded, which was some of the things he said, and Ekenweiler knows exactly what Flannery said because the two of them were involved in a heated back and forth on social media about Flannery's position on COVID precautions and Mr. Ekenweiler's [00:48:07] Speaker 03: strong disagreement with those. [00:48:08] Speaker 03: So if Ekenweiler, for retaliatory speech-based reasons, formulated a conviction that this guy deserves to be punished for his speech, and he just moves in the general body for a protest to be filed against [00:48:33] Speaker 03: the big board, and he says, you know, the ordinary reasons, the permissible reasons, property values, noise, traffic. [00:48:46] Speaker 03: Let's just put him on the list. [00:48:49] Speaker 03: Isn't that enough to establish causation, even if the other five members have no separate conviction or knowledge or [00:49:01] Speaker 03: dog in that fight. [00:49:02] Speaker 03: They're just like, fine, we take that recommendation, go with it. [00:49:06] Speaker 03: Is that a First Amendment violation? [00:49:07] Speaker 03: Is that First Amendment activity being a cause, a substantial motivating cause? [00:49:16] Speaker 03: And if not, why not? [00:49:17] Speaker 04: No, Your Honor, for lack of decision-maker knowledge, especially since Ekenweiler was not this deciding vote. [00:49:24] Speaker 04: So I think we need to look at what the actual claim is. [00:49:27] Speaker 04: So these are [00:49:29] Speaker 04: These are individual, so the commissioners are each suited in individual capacities. [00:49:35] Speaker 04: So we need to look at the knowledge, right? [00:49:38] Speaker 04: And whether each one of them had a retaliatory motive, given that they're a student or individual. [00:49:42] Speaker 03: They just ratified without any independent information about the proffer reason. [00:49:50] Speaker 03: They just ratified what Ekenweiler said. [00:49:53] Speaker 03: Not a problem? [00:49:55] Speaker 04: they still have a problem with causation given that for causation any retaliatory motive and we do dispute that they have plausibly alleged that Eckenweiler had a retaliatory motive but even if this court were to assume that Eckenweiler had the retaliatory motive they still far short for lack of causation because he was not the deciding vote. [00:50:14] Speaker 04: Ultimately what is being challenged here [00:50:17] Speaker 04: aren't the individual votes of the commissioners. [00:50:20] Speaker 04: It is a collective vote from the body, a six-member vote. [00:50:24] Speaker 04: In fact, my friend on the other side has repeatedly disavowed the notion that there is any independent retaliation claim that is premised on Eckenweiler's allegedly retaliatory motive. [00:50:36] Speaker 03: Where have they disavowed that? [00:50:38] Speaker 04: They disavowed that in the reply brief. [00:50:40] Speaker 04: I believe it's pages 24 to 26, if I'm not mistaken. [00:50:46] Speaker 04: And then, oh, your honor, I was just going to say the way that my front and the other side characterized the Flannery's allegedly, rather Eckenweiler's allegedly retaliatory motive is as evidence of retaliatory motive that should be imputed as to the entire group. [00:51:05] Speaker 02: Does the record reflect how many commissioners are on this subcommittee? [00:51:10] Speaker 04: It does not reflect, the only information we have on the record with respect to the members, or actually the membership in the record regarding the subcommittees, at that time a private citizen, his last name was O'Neill, was on that subcommittee on November 7, 2022. [00:51:31] Speaker 04: I don't believe there's any other indication with respect to the other, who is, what the membership is of that subcommittee. [00:51:40] Speaker 04: And Your Honors, I do want to briefly bring up the question of qualified immunity, which is something both parties have briefed. [00:51:50] Speaker 04: With respect to qualified immunity, if this court were not persuaded [00:51:54] Speaker 04: With respect to the constitutional violation of the course, we submit that we went for failure to state a first member retaliation claim. [00:52:04] Speaker 04: But as an alternative, if this court were not persuaded on those grounds, qualified immunity provides alternative grounds to affirm the district court's decision. [00:52:14] Speaker 04: This court can consider qualified immunity, even though the district court didn't, under de novo review, given that this court exercises independent judgment. [00:52:23] Speaker 04: The big board hasn't met his burden to identify a controlling case or consensus of cases that would have put the issue beyond dispute. [00:52:31] Speaker 03: In fact, the big board... I mean, this is one of those cases where this is a tough area. [00:52:35] Speaker 03: The law, as I know you're aware, when there's a state of mind aspect, when somebody's acting based on [00:52:45] Speaker 03: you know, someone else's speech, you dislike of a regulated party's speech, that's clearly established that any material action, if there's an adverse action taken by someone in an elected official position against a regulated party because of that party's speech, and the speech is not evidence of unlawfulness, it is not itself something that's, you know, constitutionally rendered unlawful, that that's clearly established, right? [00:53:14] Speaker 04: Absolutely not, Your Honor. [00:53:15] Speaker 04: I think we have to look at it. [00:53:16] Speaker 04: It is ultimately the big board's burden to show clearly established thought. [00:53:22] Speaker 04: They have to meet that burden. [00:53:24] Speaker 03: What about like NRA versus VULO? [00:53:25] Speaker 03: I mean, the use of [00:53:28] Speaker 03: Supreme Court case about New York officials going after the NRA because of its communications. [00:53:34] Speaker 03: They don't like its position. [00:53:36] Speaker 03: And first amendment violation, why isn't that established? [00:53:41] Speaker 04: But I think the way that my friend on the other side in the reply brief, and I'm looking at page five, has framed what the clearly established laws is far too generalized. [00:53:53] Speaker 04: In fact, not only is it far too generalized, but this court, in due court, has rejected the notion that the right to be free for retaliation for protected speech, which is how I read their assertion of clearly seppish law in page five of the reply brief. [00:54:12] Speaker 04: That is far too generalized. [00:54:14] Speaker 04: And this court in Ducour noted that that precise framing is almost identical if you compare the way they frame it with the court's analysis of rejecting that. [00:54:24] Speaker 03: This analysis where? [00:54:26] Speaker 04: In the Ducour case. [00:54:28] Speaker 03: In Ducour? [00:54:29] Speaker 04: Yes. [00:54:31] Speaker 04: It's far too generalized. [00:54:32] Speaker 04: Just give an example of the type of clearly established law that would be at the right level of specificity here would be one in which you have a multi-member voting body that is found to have violated the First Amendment where one member allegedly had a retaliatory motive that the other members. [00:54:51] Speaker 02: Right. [00:54:52] Speaker 02: So this is my question about this. [00:54:53] Speaker 02: You're just building in the factual [00:54:56] Speaker 02: your factual argument. [00:54:57] Speaker 02: Qualified immunity is for when the legal principles are not clearly established. [00:55:02] Speaker 02: So for us to even start thinking about qualified immunity in this case, we have to disagree with all your arguments about the facts. [00:55:09] Speaker 02: We have to conclude, here's a complaint that plausibly alleges that a governmental entity filed a protest against a private business because of its protected First Amendment speech. [00:55:20] Speaker 02: What is the [00:55:22] Speaker 02: legal principle that is not clearly established that the plaintiffs need to show, to show that it violates the first amendment. [00:55:31] Speaker 04: I think it comes down to what the complaint is, or rather what the claim is. [00:55:35] Speaker 04: It's a claim against the collective group. [00:55:37] Speaker 02: The board... But we would have to agree. [00:55:40] Speaker 02: This committee, the committee decided to file a law, a protest because of their protected speech. [00:55:47] Speaker 02: A qualified immunity argument would look like [00:55:50] Speaker 02: maybe something Judge Pillard might have been hinting at, which was, this is just a protest. [00:55:55] Speaker 02: They don't really have regulatory authority. [00:55:57] Speaker 02: Maybe it's not clearly established that using this kind of governmental mechanism violates the First Amendment. [00:56:06] Speaker 02: But that's not the argument you've made, at least in your appellate brief. [00:56:08] Speaker 02: You just say the facts are unclear. [00:56:10] Speaker 02: And so I do think [00:56:13] Speaker 02: This is actually why so many cases say you decide qualified immunity at summary judgment, because it's not for factual disputes, it's for legal ambiguity. [00:56:23] Speaker 04: I think what you would need is a case where there are no factual allegations that [00:56:31] Speaker 04: the deciding, like the decider, or at least enough of the commissioners that would have given another result that they knew. [00:56:42] Speaker 04: I think that's the problem here. [00:56:43] Speaker 04: There's no factual allegations that at least five of the six commissioners had any knowledge of speech. [00:56:49] Speaker 04: So I think you would have to look for a case like that, where there was still a First Amendment violation [00:56:57] Speaker 04: even though the majority, not only majority, a super majority of that voting body, per the complaint, there are no factual allegations that had any awareness whatsoever of any protected speech. [00:57:10] Speaker 04: That's the type of case you'd be looking for. [00:57:11] Speaker 03: One of the things, this is a little bit of it. [00:57:16] Speaker 03: Do you want to follow up on that? [00:57:17] Speaker 03: This is a little bit of a distinct question. [00:57:23] Speaker 03: points out that it would have been legitimate for government to act against the big board based on its noncompliance with the mask and vaccine mandate, and that some of the distaste for the big board's resistance during this period of time was therefore non-speech and completely legitimate. [00:57:50] Speaker 03: alcohol licensing subcommittee and the ANC generally doesn't have any authority to act to enforce the mayor's orders on COVID, does it? [00:58:03] Speaker 04: Your honor, respectfully, I'm not sure that's quite what we were saying that this would have been like the legitimate. [00:58:08] Speaker 04: I think what our point actually was is [00:58:11] Speaker 04: When you look at the factual allegations throughout the complaint, they generally are extremely broad, conclusory. [00:58:18] Speaker 04: We just do not have the requisite facts that you need to sustain this type of retaliation claim. [00:58:24] Speaker 04: And then I think our point, that was essentially like step one. [00:58:27] Speaker 04: The step two, the point that we're trying to make is in the areas of the complaint in which there are factual allegations a little bit more specific, those don't point to any speech. [00:58:38] Speaker 04: They don't suggest that this was because of any speech. [00:58:41] Speaker 04: At most they seem to suggest that perhaps this is because of unprotected conduct in defying the emergency orders. [00:58:52] Speaker 04: and the health measures, but that isn't enough to create or that isn't enough to plausibly state a retaliation claim, given that there is a consensus throughout this country that defying vaccination and COVID-19 orders in the context of the pandemic is an inherently expressive speech that falls within the ambit of the First Amendment. [00:59:16] Speaker 04: I think that's what we were trying to say, Your Honor, if that answers your question. [00:59:22] Speaker 04: Your honors, if there are no further questions, we respectfully request that this court affirm the district courts dismissal of the complaint. [00:59:29] Speaker 04: Thank you, your honors. [00:59:31] Speaker 03: Thank you. [00:59:39] Speaker 03: Mr. Rosenthal, you have two minutes for rebuttal. [00:59:43] Speaker 05: Thank you, Your Honor. [00:59:44] Speaker 05: I'll be brief. [00:59:45] Speaker 05: The only information in the record supports speech as motive. [00:59:48] Speaker 05: This is the quintessential smoking gun alleging at the pleading stage that the license protest was due to speech. [00:59:54] Speaker 05: You don't have to make any inferences. [00:59:55] Speaker 05: You can take Eckenweiler at face value. [00:59:57] Speaker 05: He protested the license because of speech. [00:59:59] Speaker 05: All the commissioners voted in lockstep appointed him as the commission's representative to lead the protest. [01:00:05] Speaker 05: We can take him at his word. [01:00:06] Speaker 05: This was because of speech. [01:00:08] Speaker 03: Thank you. [01:00:08] Speaker 05: There's nothing further. [01:00:09] Speaker 05: Thank you. [01:00:10] Speaker 03: Case is submitted.