[00:00:01] Speaker 03:
Let's go ahead and start with the Shepherd v. City of Seattle case.

[00:00:05] Speaker 03:
In this case, each side will have 15 minutes.

[00:00:08] Speaker 03:
If appellants would like to reserve time for rebuttal, please be aware that you are responsible for keeping track of your time.

[00:00:15] Speaker 03:
Mr. Helmi, how do I pronounce your name?

[00:00:19] Speaker 03:
Helmi, yes.

[00:00:19] Speaker 03:
Helmi, okay.

[00:00:20] Speaker 00:
Yes, it's Helmi, Your Honor.

[00:00:21] Speaker 03:
Okay.

[00:00:22] Speaker 03:
Mr. Helmi, you may begin when you are ready.

[00:00:25] Speaker 00:
Thank you, Your Honor.

[00:00:26] Speaker 00:
I will begin now.

[00:00:28] Speaker 00:
This is my first appearance before the Ninth Circuit, so I thank your honors for your courtesies today, in particular for letting me appear via Zoom due to personal circumstances.

[00:00:40] Speaker 00:
I do appreciate it.

[00:00:41] Speaker 00:
Second, I'm grateful for the opportunity to be here to discuss a case of this importance, not only because it's for a man that I care about, Officer Adley Shepard, but there are considerable issues of

[00:00:58] Speaker 00:
jurisdictional importance as precedent in this matter, issues of fundamental fairness procedurally, as well as issues regarding the integrity of our justice system itself.

[00:01:12] Speaker 00:
So without further ado, I'll get into that.

[00:01:17] Speaker 00:
Having trust, trusting the judges, excuse me.

[00:01:20] Speaker 00:
I'm not sure whether to address the panelists, the judges or justices.

[00:01:24] Speaker 00:
I think it's judge.

[00:01:25] Speaker 00:
So I'll go with that unless there's any opposition.

[00:01:26] Speaker 04:
Judge will be fine.

[00:01:27] Speaker 04:
But if you want to call us justice, we know, Bill.

[00:01:30] Speaker 04:
We won't object.

[00:01:32] Speaker 00:
Well, that's fine.

[00:01:33] Speaker 00:
I'm happy to extend an additional courtesy.

[00:01:36] Speaker 00:
No, no, it's fine.

[00:01:37] Speaker 04:
It's judges.

[00:01:38] Speaker 04:
It's judges.

[00:01:39] Speaker 04:
And of course, it gets confusing because of the California justices and others.

[00:01:44] Speaker 04:
So yeah, we understand.

[00:01:47] Speaker 00:
Well, if the judges will permit me, I'll get right into the assignments of error.

[00:01:52] Speaker 00:
I'm trusting that the judges have reviewed the opening and reply briefs, as well as the responsive brief of the defendant that should mostly serve as a recap.

[00:02:02] Speaker 00:
I am, of course, very happy to address any kind of questions that the panel has.

[00:02:07] Speaker 03:
Council, I have a question for you.

[00:02:10] Speaker 03:
Let me just start you off the bat here, since your time is running down.

[00:02:14] Speaker 03:
Why didn't you file a Rule 56D affidavit?

[00:02:18] Speaker 00:
Well, Ron, and I anticipated this question.

[00:02:21] Speaker 00:
The reason we didn't file that is because our time for doing that hadn't been exhausted yet at the time that the district court ruled on the motion for summary judgment and granted it in favor of the city.

[00:02:35] Speaker 00:
The statute

[00:02:37] Speaker 00:
and the precedent cited in our briefs holds that a party opposing summary judgment may file a 56-F motion at any time before the hearing.

[00:02:48] Speaker 00:
In this case, the hearing was struck about two weeks before it was scheduled to occur, so we simply didn't have the opportunity to do that.

[00:02:55] Speaker 00:
We had planned on doing it as of the time that we got the summary judgment opposition

[00:03:02] Speaker 00:
But we simply didn't get the chance to before the hearing was struck.

[00:03:06] Speaker 04:
So that's actually one of the questions that... But normally what you would do in that circumstance is file a 56-D motion, explain just what you said is that the striking of the hearing preempted, if you will, maybe the normal course.

[00:03:26] Speaker 04:
But you wouldn't just let it go.

[00:03:28] Speaker 04:
That's really the problem.

[00:03:32] Speaker 00:
Well, I understand, Your Honor, and that's the way that we usually do it.

[00:03:35] Speaker 00:
Notwithstanding that, the rules do allow us to file it at any time up to the date of the year.

[00:03:40] Speaker 00:
And that's what we anticipated doing in this case, and we simply didn't have the occasion to do that.

[00:03:48] Speaker 00:
And it may well be that the issue as to which the 56F would have pertained

[00:03:57] Speaker 00:
didn't occur to me until really after the response date, perhaps.

[00:04:01] Speaker 00:
I can't remember exactly.

[00:04:03] Speaker 00:
But irrespective, the rules would have granted us time to do that up until the time of the hearing.

[00:04:07] Speaker 00:
But when that process is cut off at the knees by the hearing being struck two weeks early, that's a different animal.

[00:04:16] Speaker 03:
Council, what about the surreply?

[00:04:18] Speaker 03:
It's my understanding that you argued that you would have wanted to file a surreply, but you failed to do so.

[00:04:26] Speaker 00:
It's not that I failed to do so, Your Honor, it's that we didn't get a chance to do so.

[00:04:31] Speaker 00:
And this is particularly with respect to the issue that the city brought up, the new issue that the city brought up in its reply brief, as we indicated, the issue of timeliness.

[00:04:42] Speaker 00:
That is something that we would have liked to have asserted in a CERB reply.

[00:04:47] Speaker 00:
and or via 56F.

[00:04:49] Speaker 00:
But again, the striking of the hearing two weeks before it was set to happen- When was the deadline for you to file- Through that procedure rescue.

[00:04:55] Speaker 03:
Council, when was the deadline for you to file your cert reply?

[00:05:00] Speaker 00:
I don't think that, well, we would have had to have leave to file the cert reply, Your Honor.

[00:05:04] Speaker 00:
And that would have in turn been based upon the hearing date for the summary judgment hearing.

[00:05:11] Speaker 00:
I don't recall the exact timing under the local rules,

[00:05:16] Speaker 01:
So once the hearing date went away, you were relieved of all responsibility in regard to the questions my colleagues have asked?

[00:05:28] Speaker 00:
I don't know that I was relieved of responsibility, Your Honor.

[00:05:30] Speaker 00:
I think I was relieved of opportunity.

[00:05:33] Speaker 01:
You couldn't?

[00:05:34] Speaker 00:
Once the court has decided, the court has decided.

[00:05:37] Speaker 01:
You couldn't ask for a rehearing?

[00:05:41] Speaker 00:
Your Honor, I understand that's frowned upon.

[00:05:43] Speaker 00:
in the Western District of Washington.

[00:05:45] Speaker 04:
It's frowned upon, but people do it all the time, and they say, hey, wait a second.

[00:05:49] Speaker 04:
I have a serious problem here, and I need the court to take another look at it.

[00:05:53] Speaker 04:
So it's not absolutely precluded.

[00:05:55] Speaker 04:
It's just not the favored way.

[00:05:58] Speaker 04:
On the other hand, you found yourself in a kind of unusual situation given the timing.

[00:06:03] Speaker 04:
So I don't think there was anything that I know of that would have precluded you in the Western District of Washington.

[00:06:09] Speaker 00:
Well, perhaps not, Your Honor, but following the rules in an orthodox way, the summary judgment ruling was a dispositive ruling concluding the case on its merits, therefore making the matter right for appeal.

[00:06:21] Speaker 00:
And in view of the multifarious issues regarding errors of, I'm sorry, assignments of error that we've noticed, we felt it was best taken up before Your Honors, rather than resubmitted to the attention of the trial judge.

[00:06:36] Speaker 00:
In my experience,

[00:06:37] Speaker 00:
frankly, motions for reconsideration don't tend to work very well.

[00:06:41] Speaker 00:
Because although we actually have this wonderful book, if you judges aren't familiar with it, this is Influence by Cialdini.

[00:06:52] Speaker 00:
Wonderful book on human psychology and the science of influence.

[00:06:55] Speaker 00:
Number one rule in that book is that people tend to act in accordance with what they've already done.

[00:07:00] Speaker 00:
And I'll spare you, I don't have time to get into the evolutionary

[00:07:05] Speaker 00:
pathways of the psychology, but the point is the judge having decided what he did was very unlikely to reverse it.

[00:07:13] Speaker 00:
It's much better to get it before a set of fresh eyes such as yourselves, especially when there are multiple layers of error on top of that.

[00:07:33] Speaker 00:
I'm sorry, should I wait for the next question or continue with my argument?

[00:07:36] Speaker 03:
You may continue in the meantime.

[00:07:37] Speaker 03:
We'll cut, we'll chime in if we have questions.

[00:07:40] Speaker 00:
I appreciate that.

[00:07:41] Speaker 00:
Okay.

[00:07:46] Speaker 00:
The first assignment of error is that it was reversible error for the district court to dismiss the plaintiff's claims on contested factual issues, which reasonably required further discovery.

[00:07:56] Speaker 00:
And one of those was the issue of the Seattle Police Department's policies, patterns of behavior, and practices regarding discrimination.

[00:08:05] Speaker 00:
The city of Seattle was the one in control of the bulk of those records.

[00:08:10] Speaker 00:
We were still waiting for disclosure of

[00:08:13] Speaker 00:
expert of expert discovery and declaration of expert testimony up until that time we wouldn't have been in proper position to really query what exactly was the history and what would have happened discovery was ongoing on that point.

[00:08:29] Speaker 00:
and the authorities that we cite in our hold that is not just frowned upon, it's something lawful, to grant summary judgment where there is an issue requiring further discovery that's actually material to the determination as it was here.

[00:08:45] Speaker 00:
The court, apropos that, also overlooked important evidence.

[00:08:50] Speaker 00:
The court disregarded the sworn statement

[00:08:54] Speaker 00:
of the officer that we got to testify, to the effect that he had not actually ever heard of a DRB decision being appealed by the city in the case of a Caucasian officer, only in the case of a Black officer, officer hadn't.

[00:09:09] Speaker 00:
This was a first.

[00:09:10] Speaker 00:
It had never been done.

[00:09:12] Speaker 00:
The court simply overlooked that, made a mistake.

[00:09:14] Speaker 00:
It just disregarded that piece of the record.

[00:09:17] Speaker 00:
It was very much in there.

[00:09:19] Speaker 00:
Let's see.

[00:09:21] Speaker 00:
Next,

[00:09:23] Speaker 00:
We feel it was an abuse of discretion to determine that oral argument was unnecessary for the same issue.

[00:09:30] Speaker 00:
I'll just defer the briefs there.

[00:09:33] Speaker 00:
I think we've addressed that fully in that portion.

[00:09:37] Speaker 00:
Disregarding evidence of the 1981 claim, I've already addressed that.

[00:09:40] Speaker 00:
That was Officer Mahoney's testimony.

[00:09:43] Speaker 00:
Let's see.

[00:09:44] Speaker 00:
As to the timeliness of the timeliness issue that the court raised, again, we'll defer to the briefs on that.

[00:09:53] Speaker 00:
One of the most important things here, the principle for which I think this argument is most important, is that the court erred in holding that none of the actions that happened were actionable.

[00:10:12] Speaker 00:
None of the behaviors of the city of Seattle were actionable because they occurred after termination.

[00:10:17] Speaker 00:
Well, in point of fact, with respect to the appeal of the DRB argument,

[00:10:23] Speaker 00:
of the DRB revision.

[00:10:26] Speaker 00:
That happened after DRB had ordered Officer Shepard to be reinstated.

[00:10:31] Speaker 00:
So the question is, is a government agency like the Seattle Police Department at liberty to ignore its own procedures with respect to the question of whether somebody has been reinstated or not?

[00:10:47] Speaker 00:
Is it allowed to make up its own reality?

[00:10:51] Speaker 00:
And we submit that that creates, that's a farce.

[00:10:55] Speaker 00:
That's a farce in terms of the rights of any party.

[00:10:59] Speaker 00:
What is the point of having a system where an administrative panel here, the DRB, determines that he is to be reinstated if the city of Seattle was then at liberty to simply ignore that and deem that, no, in fact, he had been fired because we simply choose to ignore the order to reinstate.

[00:11:18] Speaker 00:
There's an absurdity there and a,

[00:11:21] Speaker 00:
really a toxic circularity in that argument that we think is a danger, frankly, to anything else.

[00:11:26] Speaker 00:
Imagine the peril if in administrative law or anywhere else, people who are subject to the rule of law, to the jurisdiction of courts and administrative agencies, are free to deem the facts to follow an alternative

[00:11:44] Speaker 00:
reality simply because they refuse to follow the order handed down by the administrative agency or court that is tremendously dangerous.

[00:11:51] Speaker 00:
Council and the integrity of counsel.

[00:11:53] Speaker 03:
Let me interrupt.

[00:11:54] Speaker 00:
I have a question.

[00:11:54] Speaker 00:
It really depends on.

[00:11:55] Speaker 00:
Yes.

[00:11:56] Speaker 03:
Okay.

[00:11:57] Speaker 03:
So the DRB issues, it's written report on November 19th, 2018 ordering shepherd to be reinstated.

[00:12:03] Speaker 03:
But less than a month later is when the city files a complaint in the Superior Court asking the court to reverse the DRB ruling because, and I quote, it violates the well-established Washington public policy against excessive use of force in policing.

[00:12:18] Speaker 03:
So are you telling us that the city during that less than one month

[00:12:25] Speaker 03:
violated some sort of rule by not reinstating them when they didn't believe that the DRB had done something that was legal.

[00:12:32] Speaker 03:
They felt that it violated the well-established Washington public policy and it turned out they were at least as far as the district court or the court is concerned, they were correct.

[00:12:42] Speaker 03:
The court overturned the DRB's finding.

[00:12:45] Speaker 00:
Well, Judge D'Alba, really that what you're getting at respectfully is

[00:12:54] Speaker 00:
Was it within the discretion of the Seattle Police Department?

[00:12:57] Speaker 00:
Did they have the authority to disregard an order that they simply didn't agree with?

[00:13:02] Speaker 00:
Is it deemed to be non-binding while they are challenging it?

[00:13:06] Speaker 00:
The answer is no.

[00:13:08] Speaker 00:
They are not free to do that.

[00:13:09] Speaker 00:
The order is binding unless and until it's reversed.

[00:13:12] Speaker 03:
What is your authority for that?

[00:13:18] Speaker 00:
Okay, if we have authority for that, it would be in the brief.

[00:13:23] Speaker 04:
Well, I think one answer to that would be the collective bargaining agreement.

[00:13:28] Speaker 00:
Yes, ma'am.

[00:13:30] Speaker 00:
That's correct.

[00:13:32] Speaker 04:
That doesn't preclude an appeal.

[00:13:34] Speaker 04:
I mean, that's really the question.

[00:13:37] Speaker 04:
I understand why you think it was wrong.

[00:13:40] Speaker 04:
Totally understand that from your client's point of view.

[00:13:43] Speaker 04:
But I am having trouble understanding what the legal authority is that says that you can't, the city couldn't appeal or challenge that.

[00:13:54] Speaker 00:
Well, the city could repeal or challenge that, Your Honor.

[00:13:56] Speaker 00:
The problem is that nothing like that had ever happened in the case of a white officer.

[00:14:03] Speaker 00:
The city resorted to extraordinary proceedings for the purposes of effectively punishing a black officer, treating him in a discriminatory manner, inconsistent with his rights under the Constitution.

[00:14:17] Speaker 03:
How many times has that happened?

[00:14:18] Speaker 00:
And it did so in violation of

[00:14:21] Speaker 00:
established precedent.

[00:14:22] Speaker 00:
And again, I mean, really, what's my authority?

[00:14:25] Speaker 00:
The fundamental principle that rulings of courts and rulings of administrative bodies whose jurisdiction is acknowledged are not to be disregarded.

[00:14:34] Speaker 00:
It's a fundamental principle of our system of justice.

[00:14:36] Speaker 00:
Yes, ma'am.

[00:14:36] Speaker 03:
Council, you have less than a minute left.

[00:14:39] Speaker 03:
How many African American

[00:14:43] Speaker 03:
police officers.

[00:14:45] Speaker 03:
I know you mentioned that they'd never appealed it when it was a Caucasian officer.

[00:14:48] Speaker 03:
How many times had they appealed it for an African American officer?

[00:14:53] Speaker 00:
I believe this is the only case.

[00:14:57] Speaker 00:
Okay.

[00:14:57] Speaker 00:
The last point I can make, I think in my last 30 seconds, the issue of supplemental jurisdiction is important.

[00:15:06] Speaker 00:
And the court significantly prejudiced Officer Shepard here by not considering his state claims because they're arguably barred by statute of limitations, even if dismissed without prejudice.

[00:15:19] Speaker 00:
And the court was required to run the tests under the Brahampur and Thompson cases, which it did not do.

[00:15:27] Speaker 00:
Thank you.

[00:15:27] Speaker 00:
I guess I'm out of time.

[00:15:28] Speaker 03:
Okay.

[00:15:28] Speaker 03:
Thank you, counsel.

[00:15:43] Speaker 03:
Good morning, Ms.

[00:15:43] Speaker 03:
Tilstra.

[00:15:45] Speaker 03:
Good morning.

[00:15:45] Speaker 03:
That's correct, Your Honor.

[00:15:46] Speaker 03:
Oh, wonderful.

[00:15:47] Speaker 03:
Ms.

[00:15:47] Speaker 03:
Tilstra, we'll go ahead and hear from you now whenever you're ready.

[00:15:52] Speaker 02:
Thank you.

[00:15:53] Speaker 02:
Good morning, Your Honor.

[00:15:54] Speaker 02:
May it please the court?

[00:15:55] Speaker 02:
I'm Assistant City Attorney Sarah Tilstra, representing the City of Seattle.

[00:15:59] Speaker 02:
Here with me at council table is my colleague, Assistant City Attorney.

[00:16:02] Speaker 04:
Could you pull the microphone just a little closer?

[00:16:04] Speaker 04:
Thank you.

[00:16:06] Speaker 02:
How's this, Your Honor?

[00:16:07] Speaker 02:
Perfect.

[00:16:07] Speaker 02:
Way better.

[00:16:08] Speaker 02:
OK, great.

[00:16:09] Speaker 02:
With me at council table is Assistant City Attorney Deborah Feijander.

[00:16:13] Speaker 02:
Officer Adley Shepherd was fired after he punched a handcuffed woman in the face in the back of a patrol car so hard that he fractured her skull.

[00:16:21] Speaker 02:
His union appealed that termination all the way up to the Washington State Supreme Court, but the courts ultimately found that the DRB's reinstatement of his employment violated the public policy against the use of excessive force in policing.

[00:16:34] Speaker 02:
Seeking another bite at the apple, Mr. Shepherd then belatedly brought this employment action more than five years after his employment was terminated.

[00:16:43] Speaker 02:
The district court dismissed the only federal employment claim Mr. Shepherd did not abandon because it was based on an act that occurred after Mr. Shepherd was terminated and because Mr. Shepherd did not argue or show that that act was the result of a municipal policy or custom.

[00:16:59] Speaker 02:
The district court did not err in this decision, nor did it abuse its discretion in managing its docket around the summary judgment motion in the way that it did.

[00:17:08] Speaker 02:
First, I'd like to talk about the district court's ruling on Mr. Shepard's Section 1981 claim, which is the only court decision here that is reviewed de novo.

[00:17:17] Speaker 02:
Then I'll move on to addressing the docket management issues to which Mr. Shepard assigns error.

[00:17:24] Speaker 02:
In opposing summary judgment, Mr. Shepard argued that his Section 1981 employment discrimination claim was timely because it was based on the city's 2018 decision to seek superior court review of the DRB's reinstatement order.

[00:17:37] Speaker 02:
The district court correctly dismissed this claim, holding that because the city's decision to seek review occurred after Mr. Shepard's employment had been terminated, as a matter of law, that decision could not form the basis for a Section 1981 disparate treatment or hostile work environment claim, which require an adverse employment action and an abusive work environment, respectively.

[00:17:59] Speaker 02:
Mr. Shepard has not and cannot show that this is error.

[00:18:02] Speaker 02:
His argument that the DRB's order of reinstatement acted unilaterally to make him an employee again without any action on the city's part is factually and legally unsupported.

[00:18:12] Speaker 02:
And as your honor alluded to in questions to Mr. Helme, the city

[00:18:19] Speaker 02:
The city argued and was successful in arguing that the DRB's decision reinstating Mr. Shepherd violated public policy and that therefore it needed to be vacated and did not need to be followed just as any contract that violates public policy is void and does not need to be followed.

[00:18:36] Speaker 03:
So, Council, let me ask you something about that.

[00:18:38] Speaker 03:
How, and I do note, as I stated to Mr. Helmley, that the complaint or this, yeah, the city filed their complaint less than a month after the DRB's decision.

[00:18:50] Speaker 03:
How long does the city have before it does have to follow what the DRB says?

[00:18:55] Speaker 03:
So does it have 30 days?

[00:18:58] Speaker 03:
Does it have 60 days?

[00:18:58] Speaker 03:
At what point does it have to reinstate per the CBA and then go say, hey, we did it because our hands were tied, but we think it's wrong?

[00:19:08] Speaker 02:
I don't think there is a specific, there certainly wasn't anything specific in the order or anything specific in the court rules that say you have this period of time.

[00:19:19] Speaker 02:
I mean, I think generally speaking, it's always best to, if you're gonna act, to act quickly and to quickly appeal the decisions that you think are wrong.

[00:19:30] Speaker 03:
Let me give you this hypothetical thing because I'm having a little bit of difficulty wrapping my mind around this.

[00:19:34] Speaker 03:
So let's assume you were fine with the that the city didn't have an issue with the DRB's written order to reinstate Mr. Shepherd.

[00:19:43] Speaker 03:
When would that reinstatement have taken place then?

[00:19:46] Speaker 03:
Oh gosh.

[00:19:47] Speaker 03:
Is that something that automatically happens?

[00:19:50] Speaker 03:
Does the city have to file some paperwork or respond to the DRB in some way?

[00:19:57] Speaker 02:
That's a good question, your honor.

[00:19:58] Speaker 02:
I don't I do not know the answer off the top of my head.

[00:20:02] Speaker 02:
But our position is that some action does need to take part take the city does need to take some action.

[00:20:10] Speaker 01:
It's not custom or practice or routine that deals with the situation that my colleague addresses.

[00:20:18] Speaker 02:
I mean, I think that the city would

[00:20:23] Speaker 02:
I'm shooting from the hip here your honor, but not even if there if there's no customer practice I think the answer would be there is no customer practice I'm there may be a practice.

[00:20:34] Speaker 02:
I'm unaware of one in terms of how Quickly the city might reinstate if if it was going to reinstate but I'm I'm unaware of it of one and

[00:20:45] Speaker 02:
Frankly, the reinstatement is not the Mr. Shepherd is taking issue with the appeal, not the failure to reinstate or sorry.

[00:20:55] Speaker 03:
It is partly the failure to reinstate though, because the allegation is he didn't suffer an adverse employment action because he was never re-employed.

[00:21:03] Speaker 03:
And that's why I'm asking, had you not had a problem with the DRB's decision, technically under whatever rules you have, when would he have been considered re-employed?

[00:21:14] Speaker 02:
Yes, and I don't know that there is a specific time period within which the city would have acted if it didn't have an issue But some action would have had to occur on the city's part, you know, there would have had to be HR re-onboarding he would have had to be put back into the system.

[00:21:32] Speaker 02:
There's a whole, you know administrative aspect to putting somebody to hiring somebody So when do I understand correctly in this case

[00:21:43] Speaker 01:
There was no effort to reinstate?

[00:21:46] Speaker 02:
Well, the city, the city believed that the DRB's order reinstated.

[00:21:50] Speaker 02:
Can we start with the yes or no?

[00:21:52] Speaker 02:
Yes, correct.

[00:21:52] Speaker 02:
There was no effort to reinstate.

[00:21:55] Speaker 02:
The city believed that the DRB's order violated public policy, and it felt that the order was against the public policy, against the use of excessive force in policing, and that's why the city sought review to the Superior Court and was ultimately successful in the Superior Court and in the Court of Appeals.

[00:22:14] Speaker 02:
And the Washington State Supreme Court denied cert.

[00:22:17] Speaker 01:
What would have happened if

[00:22:21] Speaker 01:
After the DRB ruled, Officer Shepard had gone to Superior Court and asked the court to enforce the terms of the collective bargaining agreement.

[00:22:36] Speaker 02:
Well, his union did ask the court to enforce the terms of the collective bargaining.

[00:22:42] Speaker 02:
The SPOG made a counterclaim against that, so that was part of that lawsuit.

[00:22:51] Speaker 04:
So he had an expert who basically said that the city wouldn't have treated a white officer in this regard and never had.

[00:23:02] Speaker 04:
Isn't that enough of a factual issue on a Monell claim?

[00:23:06] Speaker 02:
I don't believe so, Your Honor.

[00:23:10] Speaker 02:
Monell requires that you put forth evidence of an official policy or a long-standing custom.

[00:23:18] Speaker 02:
Mr. Mahoney's statement is very bare bones and it simply says, I have never known the city to seek review of a disciplinary decision.

[00:23:30] Speaker 02:
Involving a white officer.

[00:23:33] Speaker 02:
He doesn't say and to your point.

[00:23:35] Speaker 02:
I mean you you asked mr. Helmi about whether the city had a customer policy of Appealing decisions of black officers and he answered that he was he believed that this was the only one and so simply saying that

[00:23:53] Speaker 02:
He has never known the city to appeal decisions regarding white officers, does not establish a long-standing custom that caused Mr. Shepard's alleged constitutional violation here.

[00:24:08] Speaker 04:
Do we have any evidence in the record as to whether this was a one-off situation and the only time there'd been an appeal?

[00:24:16] Speaker 02:
There is not any evidence in the record about that, no.

[00:24:24] Speaker 02:
Because Mr. Shepard was not a city employee at the time the city sought review, this court doesn't need to reach the Monell issue, but as I mentioned, the district court's holding on that issue was correct as well.

[00:24:36] Speaker 02:
Mr. Shepard did not allege or show that the city's decision was the result of an official municipal policy or custom.

[00:24:42] Speaker 02:
A declaration from a former SPD employee stating he had never known the city to seek review of a similar decision involving a white officer does not identify any

[00:24:52] Speaker 02:
official municipal policy or long-standing custom that resulted in Mr. Shepard's purported injury.

[00:24:59] Speaker 02:
In addition, I want to very briefly address this Court's recent decision in Yoshikawa v. Sugurent, where it held that Section 1981 does not confer a private right of action and that such claims must be pled through Section 1983.

[00:25:12] Speaker 02:
While this does provide an alternative basis to dismiss the 1981 claim, it doesn't change the outcome here because the same Monell and adverse action infirmities would do Mr. Shepard's claim even if he were permitted to replete it under Section 1983.

[00:25:30] Speaker 02:
I'd like to go on now to talk about the district court decisions associated with the summary judgment briefing that Mr. Shepard challenges.

[00:25:39] Speaker 02:
Notably, the decision to grant summary judgment is the only issue that is subject to de novo review.

[00:25:44] Speaker 02:
All the other district court decisions Mr. Shepard raises are subject to review for abuse of discretion.

[00:25:50] Speaker 02:
First, the district court did not abuse its discretion in ruling on the city's summary judgment motion before discovery was complete.

[00:25:56] Speaker 02:
There is no rule or case law stating that discovery must be complete or the discovery cutoff must have passed before a party can move for summary judgment or before a court can rule on such motion.

[00:26:08] Speaker 02:
Moreover, if Mr. Shepherd believed that he needed additional discovery to respond to the city's motion for summary judgment, he could have and should have filed a 56 D motion and he did not.

[00:26:19] Speaker 02:
The case law cited in the brief demonstrates that a district court does not abuse its discretion in deciding a summary judgment motion when no such request is made.

[00:26:32] Speaker 02:
Second, the district court did not abuse its discretion in deciding oral argument was unnecessary.

[00:26:37] Speaker 02:
The local court rules give district courts considerable discretion to manage their dockets, and that includes discretion to decide motions without oral argument.

[00:26:45] Speaker 02:
Here, the district court concluded that oral argument was unnecessary and decided the matter on the briefing.

[00:26:51] Speaker 02:
Mr. Sheppard has cited no rule or case indicating that this was not permitted or was an abuse of discretion.

[00:26:57] Speaker 02:
He also has not demonstrated any sort of prejudice.

[00:27:00] Speaker 02:
He claims he would have been able to address the city's alleged newly raised arguments at oral argument, but he didn't follow the procedure to file a sir reply requesting that material in the city's reply be stricken.

[00:27:12] Speaker 02:
I want to address something that Mr. Helme stated.

[00:27:14] Speaker 02:
an opening very quickly, he didn't, under the local rules, you don't need leave to file a surreply if you are asking for some material that you think should be stricken in a moving party's reply.

[00:27:26] Speaker 02:
You give notice as quickly as possible so that the court doesn't rule on the motion before you're able to file your motion to surreply, and then within five days, you have to file a surreply.

[00:27:36] Speaker 02:
So no leave was, and more than five days had passed, many more than five days had passed when the court ruled.

[00:27:44] Speaker 02:
It was his failure to follow applicable rules, not the court's decision to decide the case on the briefs, that caused alleged prejudice to Mr. Shepherd.

[00:27:54] Speaker 02:
The city's timeliness argument also was not improperly raised for the first time in reply.

[00:27:59] Speaker 02:
The city argued in its opening summary judgment brief that Mr. Shepard's section 1981 employment discrimination claims were untimely because they were filed more than four years after he was terminated.

[00:28:10] Speaker 02:
In his response brief, Mr. Shepard stated for the first time that the city's decision to seek review of the DRB's order was an event underlying his section 1981 claim.

[00:28:21] Speaker 02:
So in reply, the city pointed out that this event could not form the basis for an employment discrimination claim because it occurred after his employment ended.

[00:28:30] Speaker 02:
This is not a new argument, but instead it's an application of the city's previously raised timeliness argument to Mr. Shepard's identification of a new act upon which his claim was based.

[00:28:41] Speaker 02:
And it was not improperly argued on a reply.

[00:28:45] Speaker 02:
But again, if Mr. Shepherd believed that it was improperly argued on reply, he could have filed a cert reply.

[00:28:50] Speaker 02:
He didn't file a cert reply.

[00:28:54] Speaker 02:
Finally, the district court did not abuse its discretion in declining supplemental jurisdiction over the state law claims.

[00:29:00] Speaker 02:
The district court declined to exercise supplemental jurisdiction over the remaining claims, the state law claims, pursuant to 28 U.S.C.

[00:29:08] Speaker 02:
Section 1367C3 because it had dismissed all claims over which it had original jurisdiction.

[00:29:14] Speaker 02:
The San Pedro Hotel case and its progeny hold that a district court need not explain the reasons for declining supplemental jurisdiction if those claims are dismissed pursuant to C Sections 1 through 3.

[00:29:27] Speaker 02:
Explanation is only required under section four, which is the exceptional circumstances catch-all that requires compelling reasons.

[00:29:35] Speaker 02:
Mr. Shepherd doesn't address San Pedro Hotel, and instead he claims that Barampour and Tonkson require the district court to conduct an analysis.

[00:29:44] Speaker 02:
Both of these cases are distinguishable.

[00:29:47] Speaker 02:
In Barampour, the district court didn't mention the state law claims at all.

[00:29:51] Speaker 02:
And in Tongson, the district court chose to engage in some limited analysis, even though it was dismissing under C3.

[00:29:58] Speaker 02:
Notably, Mr. Sheppard has cited no case in which this court has held that a district court explicitly declining supplemental jurisdiction under C3, which is what the district court did here, had to conduct additional further analysis.

[00:30:13] Speaker 02:
In some, Mr. Sheppard has not shown that the district court erred in dismissing employment claims brought over five years after he was terminated.

[00:30:21] Speaker 02:
Neither did the district court abuse its discretion in managing the docket the way that it did.

[00:30:25] Speaker 02:
The city respectfully requests that this court affirm the district court.

[00:30:31] Speaker 02:
And if your honors don't have any additional questions.

[00:30:34] Speaker 03:
All right.

[00:30:35] Speaker 03:
Thank you.

[00:30:37] Speaker 03:
And as I note that Council, Mr. Helmley, you did not reserve time for rebuttal and you ran out of your time.

[00:30:44] Speaker 03:
This matter is now submitted.

[00:30:46] Speaker 03:
Thank you.

[00:30:48] Speaker 00:
Thank you, yours.

[00:30:49] Speaker 03:
Thank you.

[00:30:51] Speaker 00:
Appreciate the honor to be here today.

[00:30:52] Speaker 00:
Thank you very much.

[00:30:53] Speaker 03:
Thank you, sir.

[00:30:54] Speaker 03:
Have a great day.