facially that appears to be the situation in this case there are some very important distinguishing factors which these are the factors that are set forth in the richard's in the united states supreme court case richardson versus mcknight case we are going under the policy aspect of the analysis and i think it's an either or under the richardson case either it's historically available or it's the policies behind are very different in this case than they are and in jensen and any of the other ninth circuit cases that have interpreted richardson and i think that the major difference is that here we're dealing with sole practitioner just one person i contracted with the county of marion to provide certain psychiatric consulting services and to determine eligibility questions regarding general richardson talked about in the prison guards with relation with his defense and talked about why isn't that something that we need to be addressed to actually support your distinction i think that terminations can be made based on the record the undisputed facts that are before the court i think we've set those forth in our brief the fact is that there was a contract between dr goodheart and the county set forth all of the relevant that provision talks about the scope of his employment i don't think there's any question on those issues that contract kind of speaks for itself and the contract provides in this case that  good heart is to be provided a defense by the county and indemnified by the county that's not contested that your good hearts defense in this case is a matter of fact is being provided by the county out of public funds so that's the main distinguishing factor in this case facts are that questions of law that stem from material facts so i guess that the issue that we're suggesting is that the court that does not look at the material facts if there are contested fact issues the not material t assert preclude our analysis but if you see the appeal is from the district court's determination the third generation of material fact that's clearly precluded and it seems to me there is an element of that to your appeal saying no the district court was wrong there are no genuine issues of material fact well you're right your honor it is it is true that it's difficult to tell from the court's opinion below what exactly the material facts are they considered to be a issue however i think we have our brief does a good job of setting forth what the undisputed facts are and there and also describing what we believe would be the district judge is just rejecting qualified immunity based solely on the existence of genuine issues of material fact is that the way you read that's the way i read it you're on it and you know we raised several at least as far as i'm concerned i'll just have to have my own way through but he did refer to the previous orders but then said in which i said that there are genuine issues and material fact which isn't quite what the previous orders  footnote in richardson was not a basis of the argument that dr goodheart made below in the context of the qualified immunity at issue it was raised for the first time on appeal so that this record did not address it in this order because it was not of service or the context in which he is alleged to have violated the constitutional rights of the plaintiffs in this case dr good heart is to both in his official capacity and in his individual capacity and dr herbst briefs do not address the fact that this is the owens case cited in the opposition brief dispositively addresses the fact that an individual student his official capacity is not entitled to qualified immunity it just doesn't apply to the individual special capacity so the only issue that we're really discussing here is whether that the qualified immunity applies in his individual capacity and that's where we get into the chance in discussion and the other areas of historical and his counsel argues now are policy reasons for why qualified immunity should apply in this case but the burden is on dr good heart and it just simply has not been shown in the first place and the immunity is not he's not the sort of make that summary statement that they are shrouded in genuine issues of material fact but the in his defense the papers that were filed addressed every single issue under the sun the summary judgment was really really to you know if you get over the legal hurdles that you get ultimately out of the question of whether it was objected really reasonable for a duck to go hard to believe that the actions that he took were not in violation of the constitution and that is classically a question of fact for the jury is whether it was exactly reasonable for him both to create the type of report that he did create which was an unreasonable use of the confidential information to which he was given access for a limited purpose both to create eighteen page report for the county's purposes to begin with which the county admits they were given much more information about mr dumont then they needed to make the eligibility determination but then to take that report and instruct the individuals within  the office of employment training to then distribute it outside of the county that itself was it was also in our opinion objectively unreasonable use of the information to which he was given access for the limited purposes of determining whether or not mr dumont  psychiatrically incapacitated from working he was given information to confidential access to confidential information for that very narrow limited purpose so but i think there's a lesser sensually undisputed  rulings he did rule twice on the qualified immunity issue that it doesn't apply on the grounds of legal on the grounds of the application of the law and it was only when we got to the summary judgment stage that after listing all the affirmative defenses dressed he said all of these issues are shrouded in genuine issues i'm sure i suppose the authorization issues that the parties  absolutely the authorization issue is not properly before this court on monday it's an affirmative defense and what they've characterized it on appeal for the first time is that a good heart could not have known or that it was re for him to have made these distributions because of his belief that these authorizations were in place but that the back that's back during the first of the defense that whether the authorizations justified the violation in this case your honor  you'll look at the history of how the court expedited the briefing schedule and allowed goodheart basically what was essentially six months to to file the opening brief because there was an issue i had attacked goodheart another three to four weeks to file the opening brief and cut my time opposition down to three weeks so when i got the opening brief and there were all these issues that were raised that were not raised below i mean it's one thing to take a summary judgment brief and and  level but these were new issues that were raised that were not presented to the district court below so it took longer than three weeks to put the brief together and i made an appropriate estimates and accurate estimates as to how long it would take me i apologize for the inconvenience and what appears to be disrespect of the rules i can assure your honour's that it's not just disrespect it was a functional problem and the question oh yes i do have a question in jensen jim richardson well there's a reference to as an alternative to qualified immunity the possibility of a good faith that you have a position on that mystery man is very very concerned that the material that was filed in this case not be made part of the public record and in fact even the material that was filed like dr goodheart that was not filed under seal includes material that should have been filed under seal that was filed under seal below includ social security numbers it includes medical issues includes the whole social security administration ruling which makes reference to all these other medical opinions all of which are under seal and cannot be accessed by the public you know in other regards if your honour's  the information was disclosed in this case and just whether it was protected at all by the federal right privacy i don't think that the disputed facts went to the issues that are relevant immaterial to the qualified immunity issue jim thank