entire decided to enforce something that had been enforced for and how require original certificates to be out the actual racetrack and the reason this hadn't been enforced before was because there's often multiple races going on in new mexico in at one location and only after some courses and not to others i thirty everything hold can you can you first address the issue we were addressing in the in the last case as well which is you don't have that right to due process property right is the fundamental right to engage in your chosen profession well very versus there's this is partly what barry didn't say that there was a property right in the fundamental right to engage in chosen profession that chosen profession of horse racing also involves a license and that license was on the line so both of those citations in your brief seem to rely on the property interest you is contingent on how the state has looked out what our property rights are second that's consistent with the u s supreme court decision in cleveland you're just saying that because you have a license to raise that you don't have to follow rules from the license is versus the other way as to whether or not you had to have that license on site at the place of the race or not there so you're you're not relying on any published interpretation of the rules any regulation or any court decision that says its practices in the past and if so and it is an agent of the state we normally say that the state cannot be a start by its course of action before so how is your cla because well it might be it might not be i mean that it does say that it has to be on on those on the books before the before the whatever the group is called that the person that handles the is whether there's an intrusion into a clearly established right and so under the a p a there might be discretion that is built in for the agency anex might the considered arbitrary  with regard to qualified immunity at least the second prong if if in your interchange we judge you bill i take it that under the rules there are some built in ambiguity about whether the original certificate has to be on sorry and if this is maybe a question if there is if there is not a tenth circuit or a supreme court precedent or even a consensus in other circuit saying that scratching a horse for a single ray would violate the or owners or the the owners due process rights i'm not sure how we can say that there was single race versus the the broader right to practice one's profession we've got i think the problem here is that you again i believe the sentiment case state is that you have to look at the property right particular to that adjusting and the and the pleadings that we found in the papers the very short period of time two to three years huge amount of investment that goes into this right before they can race in that one race missing that one race can be akin to not having the ability to engage determined to be unconstitutional but in fact i have a published opinion that says there is no such property right you want to actually get a slightly different there's no property right in the piece of paper the license sell the property right is the right to engage  we get president that doesn't even address the point because the point is what is meant by on file with a recent secretary or course and then a fire and so unless a president deals with asserting case about some other sporting event some other states some other event wearing licenses whether it's on file here or there would simply not be interpretively helpful at all which means basically that you get a free pass a free such we're not i'm not entirely certain how to proceed other than i guess i'm a little confused by the whole clearly established analysis and generally in these qualified immunity cases we assume if we're going to go to the clearly established from first we do know that there's been a violation but then we look to see where that whether that right was violated is clearly established but i did not read the district court's opinion on the clearly established analysis to take that approach instead of seem to be mixing the concepts of whether there's been a violation here and in particular whether there's a protected property interest to begin with that was impacted by the actions of issue here and it makes that an it didn't benefit that there was a protected property interested didn't assume that there was a violation  the somehow it found the law was not clearly established and so i'm a little bothered by that whole analysis and i guess i would ask you before we could even decide whether there was a clearly established right whether that right was clearly established wouldn't we have to decide was was there a right meaning was there a property interest to begin with and and what's the answer to that question will i think what your honor may be referring to was the  mandatory approach for addressing the two prongs of qualified immunity prior to the peterson case which clearly allow the court to i know i know you can turn him around but when we turn it around we assume have believed that they were violating anyone's established right in really performing their job duties which is what this comes down to is that these stewards are empowered by regulation to interpret and interest in that and that's fine however our the alternative would be perhaps there's a property interest because the state law or the regulations are somehow mandatory and not discretionary and i think what you were just trying to tell me is they are discretionary so there you can't pull property interested in those either that's exactly correct then so if you don't have a property interest i guess my question is how do we even get to a violation of any write in why are we even talking about whether it's clearly established or not if there's no property well that's fair enough and part of that question would probably be best directed at at the at the appellant but i guess what it what i'm saying is that under we know you've got a property interest in your license you can race and we're not going to interfere with that except that we are now deciding that the black horse with white stories on their forehead you know race in this race we just decided that within the last hour  in this particular race but they're welcome in every other race would that affect their property rights when it doesn't affect their basic license well certainly where there's no basis in the regulations for scratching nonsense it's traction if we say was this did this affect their license or not their licenses the ability to raise and if the ability to race in the biggest race in the country on on the courses is denied this license doesn't have horses to either race without the license on file or it gave them notice in this very race in advance and didn't give notice to these particular people well those allegations both of those allegations are beli to race on may twenty second or twenty third and that that horse was retroactively disqualified later now in that situation if if the horse had raced then i can imagine that post deprivation process could big meaningful in other words to take the case that proceeded you if the horse had finished in first place and it was also believe determined through post deprivation process that the rule was improperly interpreted here to require the original certificate in first place to be retroactive or it could be a pill that could be ultimately warded to that horse now it to take  horse being retroactively disqualified there is a serious difference in the way that process would could be applied to those two horses well my concern here is that th action against the commission on the process that was provided by the commission this is an action against two individuals whose conduct here was to which within their job description and really to perform what brown it would judge browning refers what ultimately i'm not entirely certain what process whether prescribed or post grad these two individuals as opposed to the commission who is not a party to this matter  are you saying that because these two officials in control prices there they couldn't be liable for a deprivation of due process because that's the other  i'm saying that appellant's would have been better served bringing their claims against the commission who is ultimately responsible for for process it's a hearing that was held with a hearing officer and the hearing officer found that due process violations had occurred and that they were and that when they changed the school and applied it in equally on the date in question on the third date of racing some people were impacted by it and other people were there in courses there were a way out to to raise from the twenty second of the twenty fourth that were they didn't have their original certificate on file at that racetrack that were not retroactive one that said that other horse was also really retroactively disqualified and so should you come in a moment ago to say well that may not have been the only thing that was allowed to race without  original certificate but if you make that allegation and you incorporate the hearing officer's report i don't see how you can reasonably interpret your allegation to say well there are a whole lot of other horses because you're you're specifically