figuring out what the punishment was what was taken to me it seemed like to me like the prisoner was in the same position that i am with i tell last carolines i wan rotation he was placed on that decline let me be clear on what my concern is i can see that anything was taken away from him because he didn't have any right to anything even getting into the program or getting the early weeks and even if he did it seems like he was offered the program he just didn't take it because it wasn't in the part of the country that he wanted to be and he wanted to be in the north west when it was the southeast and even he did have a right to be in the program he was given notice and an opportunity to be heard on whether he wanted to reconsider his decision and what the consequences would be and he said i don't want to go to the southeast united states i have to go to another person i want to stay here my family and feed of programs so that that's my problem nothing taken from them exact same documents of this that were involved in this case there was a formal determination of eligibility this not only a formal term it should've eligibility which alone in bowen created a settled expectation but here we have one plus not only was there a determined formal determination of eligibility he was transferred from taft mears family to share to take the program he was he had his course sake all other programming in order to be on the waiting list and he was on the death waiting list in the residential housing waiting for the program to start for at least seven months insurance so we have that plus we have to go in plus showing that you had a very clear and settled expectation that the court has recognized so i believe there was an interest that was deprived i thought you were going to get into the i thought the first offer was the program in the southeast and he wouldn't take it and then he did get into the program in the northwest it's just that when you turn down an offer of a program you go to the end of the waiting list and there's come back up there's no rule that says anything close to that what he was going to but there was all that says the opposite that you should not go you get to stay at the top of the waiting list while you turn down things yes this is a heavily regulated area the idols i didn't see the rule that lets you stay at the top it looked to me like a union hall where they offer you and trav when you take it or else you go to the bottom of the a list you did was he was they said do you want to voluntarily transfer and a lot of what the fairness of this case is about is what the words mean when you say a voluntary transfer and he says i don't want to take a voluntary transfer but i want to participate in the program in which i always expressed an interest in actually removed from the program and had to reapply and get reconfirmed to get in an office before that he had already been confirmed he'd been given the program he'd been told that he was  requires at least the measure of due process set out in full view mcdonnell and that goes to your second part of your question that i felt because here that first of all there was no written notice which is one of the minimum requirements there was no opportunity to prevent his arguments and present evidence he has a family was coming up to visit him for the made best in the program that he had good reasons for not wanting to go to southeast southeast region if it was told that he was  a voluntary transfer this wasn't voluntary this was a if he was saying i'm taking your word for it voluntary means i can say no without suffering consequences appear to you for not doing something that was voluntary he east right because it was available right then yes and he said no i don't want to do things he said that he did not want to take a voluntary transfer he said i do i'm not declining to participate in the program recently and the program was available there you're talking about a leader time i think there are three times the first time they are from the program in the southeast he says no i want to think you're my family i don't want to have to make my way or new prison the second time there's a program starts in the northwest and he would like to be in it but because he declined to se program he didn't get in and then the third time there's a program available to northwestern to get him and i got the time sequence right i to sharon and to participate in the program so what you're having it on is that he was prince bird to participate in a northwest program and then a south east program became available earlier and he declined  after his transfer to participate in the northwest program that's that's correct your honor now i don't understand why this is a boeing problem because to boeing what happened was they adopted new regulations and apply them retroactively in your case i in analyzing a liberty interest what we look to is the type of rules and regulations that exist so that if the agency action results in a longer incarceration that that is a good number of an interest to be protected by at least a would like to start not with the briefs that are before the court but with the letter that mr sainty wrote yesterday bringing to the court's attention the recent supreme court by recent i mean june thirteenth two thousand and five welcome to the verses austin like a lot this case was actually handled by a colleague of mine who has since retired craig casey so i had some times which is that is it is a blessing i went through the whole record again and last night i spent more time reading wilk and then refers to sandwiches referred to mr casey's briefing as you remember mr sandlin was put in segregation prefer thirty days segregation is usually pretty severe restrictions the case in wilkerson involved administrative maximum prison in ohio in which it was really severe segregation you're put in a single cell you can't communicate with your room with other cellmates the lights are dimmed and it was a pretty severe situation as the court said we think we should go back it also said in the wake of stand in the courts of appeals have not reached consistent conclusions for identifying the baseline from which then go on because they found there was a liberty interest affected in this book of things case it had all of those things of segregation but in addition which they said effects of the liberty interest were these proctors first is that the ration i like the thirty days in welker sent the duration here had the potential of being unlimited you could be in this situation the whole time you were in prison the second was that if you were placed in the situation you were disqualified from being grohl and of course prole is an expectation but not a staff that she will be paroled in any given time and i will tie this back into of course getting into the program they then said that is what makes the liberty interest but right below that they said while these conditions standing alone might not be significant to create a liberty interest take a look at this case first examine whether or not there was a liberty interest affected in this particular case with regard to change the opportunity for him mr george you're to go to the suggesting that this case that we should knock out a bowling ball in well in light of wilkinson because bowling clearly does over in the senate by the way bowen clearly does say that participate and have the possibility of actually getting time off yes when i was number comes up and you can get into the program ok if i want to quibble deal now briefly with gap to climb since i did not write the brief for a few the cases i had the ability to go through the record again as i went through that record and i read the quote to mr sadie's pretense and went back to the record i could not find one place in the record where it indicated that if this law had not occurred mr towser would have started the program prior to september tenth anyway what we know from the record is he wasn't going to make a march program with the fact there was one because his number hadn't come up there is nothing that i can find in the record that says there was any classes between of the program in the spring of two thousand and three all but close to the record although the brief speaks if any therms all the references no records are qualified nobody says in the record that i could find went back to where the briefs said they were supported i did not find them support an absolute terms there were terms like with the expectation could have entered but there weren't any terms and said would have to enter the program on this little surprising if the answer was simple as that the when the government didn't simply say you now have to do anything well there were absolutely no slots available at all until place i don't think that can compare to what you were just talking about because it person on a discrimination admission he doesn't know what's thinking what's going on he saw who was in class who wasn't in class and when all classes started he was right physically three points first of all fulton strongly supports wolf on the second aspect is liberty which is liberty created by rules it's reinforces wolf and of course will to not involve a substantial or a typical and they do and they do not take voluntary transfer it's unfair to ask them to basically punish somebody with greater period from harsh ration with no opportunity to confront their or to present to a neutral body no tou