state university i think the course probably looked at the facts in context of this case as an antitrust action that we've solved predicated on the fact that the ground program was close soley based on the use of the includes exam which is a national licensing exam and a theory that you can determine the quality of a program based own the pass its rate of first time takers not even thing else or in essence you could close a law school based on the passes rate of individuals on bar exam on the passing grades on the past and very first time takers because you can't take it theory based on the ruling in north carolina dealing which is a nineteen it's two thousand and fifteen ruling by the united states supreme court that they're not immune and they're not a meal  based on the fact that they are considered to be non sovereign entities and basically what the court is done at the lower level is that they used a straight argument y from antitrust action but if the actors that are in control of that particular entity are considered to be non sovereign actors who what actively test well i mean i understand from your off from your brief i thought you were not challenging the right of the or the fact that the board close the nursing school i think what is right in reference to the point that the test that we're saying that should have been utilized was the two prong test that's requiring it's been required by the supreme court and the mit c so just to simplify the trunk we're talking about eleventh amendment immunity and this state action immunity under the antitrust law right lynn am i correct about that correct but yet as judge jolly says in your brief that this should have been a two prong test the two prong test would have been the test that would have based the been outlined in north carolina dental and the test  that the nurse inboard is considered to be a non solvent actor they are what a non sovereign actor in other words the board is composed composed of individuals that are literally individuals involved in the marketplace in other words their nurses there and percolate in the area that they're actually actively involved in and what the law is in that area is that when you're dealing with it and if he composed of these non sovereign actors the test is the two prong test that's detail and and pretty much just expanded on in north carolina well let me ask it this way then do you agree that if if the if we held the board is equivalent to the state of louisiana and protected by the eleventh amendment is the case over no because the test for these individuals when they fall into this non sovereign actors is the two prong test and midcap and expanded on and i'm asking you to assume they are sovereign actors if we hold they are sovereign actors it is the state of louisiana that you're suing under this six factor test we look at if we held that then we wouldn't even look to state action under antitrust would we yes you would versus the texas who are a medicine at cases pending currently right now based on the issue that the allston district hale death of texas medical board does not have a munity based on the fact that they are not sovereign actors and that they are subject to the two prong tests that's been is to go for versus virginia state board of or examiners or whatever was for nine hundred seventy five which went through what you're talking about state action immunity and then said the district we won't find that immunity we still find unaddressed that eleventh amendment might bar this so we send it back for them so i may be the only example at least in that case the supreme court seemed to recognize that there were two separate immunities both equally subject to evaluation in the case and case you just described as pending with us it sounds to me like you're saying the court found no sovereign immunity but then turn to the state action immunity which which may not be what it says but i'm just going by  your articulation a moment ago what is there that tells us that only state actually munity would apply in your case and not sovereign immunity the fact that north carolina board then moving forward to the mid cayle case where the court said well when you basically delegate a function to a nother individual quote unquote this non sovereign individual who's also an individual who's active in the marketplace that's being regulated then these individuals are subject to some form of supervision interaction so i think that the case law is clear that if it was just strictly a state agency with regular state agency employees we're not talking about a medical board but doctor a made peace the court and i and he'll counsel for rogers of the part of the argument that you just heard is not in the record and that's why we're here complaining we were concerned about the manner in which it was removed court opinion and the defendant's free ignored argument concerning the two prong test as a district court to do a search function but i don't see it ever mention state action immunity in a north carolina dental examiner no cases not mention no and none of his progeny no nothing at all just mention and that was you know it really got complicated because we have a temporary restraining order out there trying to get the girl back in school into another mode where we're trying to defend the dismissal now and you just do stick tional basis and i think the focus got changed because at this point the court doesn't rule until the keep the nursing program open for what at least one more year until we could get the legal legal status determine the course part of our claim is that there was a teacher out there should've been some kind of teach out program you just don't shut it down with people getting ready to graduate about to loose credits and they have to change schools which is essential what about how i want what merit scholar and ended up having to find some place to scramble to get school so that she could finish she's still going to finish here late which she you know because she's losing credits so we're trying to say use a teach out program which is part of the protocol but we never get to that point because we're dealing  the record to see if your brief that was dismissed if you made it part of the record and i don't believe you did we couldn't find it in the record i know generally briefs are not part of the record but here where he struck your brief  thought well perhaps you filed and made it part of the record so we could look at your brief to see whether there had been prejudice and i don't believe you filed your brief in the record did you we didn't know we did not refile we have no way of knowing what you did or did not opposition ten days after that in conformance with the court ruling now the court telephone conference a's you can file your return ten days after the filing of the opponents will just what we did so stand days after that so eleventh amendment and the state action rule four and the trust we did go into the parker action immunity i would like to state in the beginning that far that sovereign actually muni under the eleventh  sovereign immunity and what he may have improperly done in weighing the six factors no i don't think they properly address that i think i probably do they dress that alter they travel and the way judge brady analyze sovereign immunity to own appeal do they challenge the evaluation of the six components elements of sovereign immunity such as the show where judge brady may have erred if that's the right analysis no it's my position that they did not challenge judge judge brady's analysis of the sixth actors rather they challenge that judge brady didn't apply the second prong of the macao test and his analysis which is not a pluggable to the eleventh and then in unity so going back to my position that they've kind of fused the two immunities together into one when i want to when you filed your brief the twenty six motion to dismiss jurisdiction they couldn't move on to the next up and once that they found that the nursing board was an arm of the state it wasn't appropriate for the court to move on to parker be brown state actually learned it was your motion to dismiss alternatively plan yes  and then what i'm seeing looking at his opinion a page for footnote one where he talks about state action immunity and he says this court finds that these immunity defenses of eleven men state action are distinct in that a state or agency may be a intitled of them in the unity yet not in title of state action immunity and vice versa additionally the court has resorts the issue extensively and has found no clear statement that congress has abrogated eleventh amendment immunity trust acts therefore under the circumstances presented in this case the court finds that louisiana may invoke the protection of eleventh amendment immunity and a suit brought under the antitrust act so he did deal with yes he talked about the  of things are said by opposing counsel is that your brief had to be refile conformed in some way that took an extra three days so which is it doing the math is it just was it five ten falsely on the same day we fall to pleadings with the court we filed a motion to dismiss which is that issue today we also thought in opposition to the injunction that opposition exceeded the page on that one page because our signature block and certificate of service fell in excess in the clerk's office so that they deemed our brief on the injunction issue insufficient and we were had to follow us into strike and file that three with the lower court that was the injunction our motion to dismiss the one was timely filed it wasn't deemed insufficient it was fall within the court's timeline so those in counsel's representation to the court ask you about the actual immunity is here what is your best case to tell us that these are independent immunities and in that any trust action recently we have firm in north carolina dental a board if you look at the factors to consider an immunity you know i think the nursing word file right along with earls the first doctor that the court looks at as well their state statutes and case law characterize the agency as an arm of the state both the louisiana legislator and louisiana courts have viewed the nursing board as an arm of the faith that if the plea the degree of local autonomy that the entity enjoys the louisiana state board of are authorized by the legislator you should be going through some factors maybe this is answering my question and you try to rephrase it i'm trying to say what is the best precedent best case law  listed as a defendant not lawsuit the individual board members were listed as well and so in our laws the c p a or the entity was dismissed under eleven then and unity the board members were dismissed under the parker action immunity because ex parte young didn't allow the lower to the court to release the board members through love at the moment so are also went through an analysis of a live at the moment immunity dismissed the board and then they went through the analysis of parker v brown and dismissed the individual board member in addition to earl there are several cases that support the analysis that liking the louisiana state board of nursing the fireman fun case all side in our briefs the newark versus the dental board i just want to reargue that the love of the men and unity in state action immunity are separate and distinct and they have an independent analysis they're not mutually exclusive and that when the lower court finds that it doesn't have jurisdiction pursuant to the eleventh amendment they should not  the brief and not allowing the motion for reconsideration it should be noted that federal courts have an inherent power to manage their own proceedings and this case reconsideration was an extraordinary rem found it interesting the court in upholding old reconsideration striking the briefs said it had done its own independent research to try to present the plaintiffs zation yes we thought that was interesting that the court had noted that and  goes towards an argument that the plaintiff wasn't prejudiced because you know the court did do independent research and went as far as saying that they tried to formulate their arguments and respond to our mission to   maybe they would have chose the district court district judge as cap amendment immunity after the north carolina done for a case i think that there are a lot of state agencies and regulatory boards throughout the country whether it's medical boards boards cosmetology boards plumbing are interests and how the court is going to rule and apply eleventh and then and unity and the antitrust case but that being said i know that the question may be close but i think when the court analysis  considers that the nursing board has a broad grant of power from the legislator that we are composed of members who are appointed and we serve at the pleasure of the governor and were charge of carrying out an important governmental function to distinguish the north carolina  non dentist from practice are from practicing the teeth whitening service and the court determined that that was not within their designated authority that teeth whitening was not the practice of dentistry and they couldn't prevent n us from engaging in that activity whereas you know the nursing board does have the authority to regulate both nursing practice and nursing education and the nursing board's decision to terminate grumblings program  and i'll make the make this comment and it goes back to no ten of the earliest opinion where the court specifically states misfortune to be its fortunes for the board that only one problem of the mit cal test applied to them so at that particular point in time they were treated as if they were municipalities in there was no question about whether or not they could get co tried to impact the market that's in the footnotes and the term is fortunate for them that they were only subject to the first prong because the second prong would have been the active supervision prong and that's the problem that's clearly stated in north carolina don't know that for these particular any of these that are regulating market areas that they are actively involved  not only are they a choice with following the choice that's been given to him by the state but the state has to actively supervise them so i would say that you could probably in by the language that the court used in earl that they are fortunate that they were not subject to the second prong and matter of fact it actually goes into conversations about the fact that their activities unsupervised i think that this is what is the balance of my petition position is that with the supreme court is saying and medicare what has been highlighted in north carolina do is that when you place individuals who are serving at the pleasure of the governor doctors lawyers for mrs over areas that they are regulating are subject to an attack trust liability if they fail to meet the two prongs so i think that the law is clear and i think that the earl court got it right a question so is a distinction yes there's a distinction these entities operating in that feel that they're regulating they are subject to this t prong test and asked individual and brief i have to make this comment brief four days late it was in response to actually to the issue associated with the twitter be response the general rule is twenty one days to respond something like that out in my my former state district judge in texas i just just couldn't figure that i had a days based on the fact that i understood the urgency of the fact that hey look i want to get it all there but i'll be honest with you i've never really believed that that order was talking about ten days response ten days  restriction on page limit actually applied to the response to the twenty upbeat motion because at that point in time we were trying to secure a restraining order in that case we were still about that but because the foundation of this case and it's predicated on the theory that this board the subject to the two prong tests and our objection to the district court ruling was that they did not utilize the two prong test that's required for any of these that solved into the category of the in non sovereign in ok mr here thank you very much for your argument