our last case this morning is cleveland versus  morning may please the court my name is lisa goldman and i represent the appellant gary club and justice delayed is justice denied any government entities must be bound by the statutes their concessions and orders to govern retirement benefit determinations the correct scanner to review to apply to district court summary judgment decision on constitutional questions is to know about this court should reverse the district court's grant of summary judgment in favor of the city and instead grant mr clemens partial summary judgment motion on liability for three reasons first state law long ago deemed clemens right and wrong and in the wisconsin retirement system and to receive benefits as a constitutionally protected property right second the supreme court requires a government entity to provide a pretty deprivation hearing before taking property where quick action was not required where predestination hearing is feasible and where the tortious loss of property is not  a random and unauthorized act by state and police third post deprivation remedies are inadequate to compensate clive and for the years he lost in the enjoyment of retirement first wisconsin statutes chapter forty  a question about whether he was properly classified as an employee or as an independent contractor and that that's been resolved by the state courts and what the current fight about as i understand it has to do  with when during the course of that multi year litigation over the classification decision he had vested  back benefits and in particular this issue of employee contributions who was going to be responsible for those once it was determined that he had been misclassified all this time along with the other stagehands you he was due credit back to january first one thousand nine hundred eighty three certainly the city was obligated to report his hours and earnings when the board ordered it to do so in two thousand and thirteen and certainly it was also required to re earnings when judge andersen ordered him to do it in two thousand and sixteen the city refused to report his hours in earnings until mr clement filed a motion for contempt in two thousand and sixteen the second question you asked is with regard to the employee's share versus the prior share of the benefits determination this case isn't about who pays the employees share of the benefits determination the statute has already resolved that and judge lan already resolved that the statute says specifically forty point two two three b that once the city realized he should have been reported it had an obligation to report his hours and earnings immediately if this city thought that clinches have to pay the employees share the city could utilize withstands forty point zero six five which allows the city to recoup the employee share from the employees but none of those gadgets are rules allow the city to refuse to report his hours in earnings and he couldn't retire in till they reported his hours and earnings because he have sufficient funds in the retirement system process didn't yield a result as you say justice delayed justice denied that the process didn't deliver the result quickly enough that it wasn't a lack of process right it was the jury what you really complain as the city's not acting promptly on the order no judge perry that's not correct which brings you to my third point the post deprivation remedies are inadequate to compensate club and for the roughly five years of retirement that he lost technically clemence trust fund appeal was his post deprivation remedy that he followed to obtain his right to retirement benefits he filed an appeal he had a theory he got a decision and he got a final decision although in that of a two thousand and thirteen but the city didn't follow the decision and the city didn't appeal the decision the city's assertion that the law provides clever and could have a post post deprivation hearing even though no pursuit no procedure has been articulated by the city and no law supports such an interpretation fall short it must be your client appealed the decision of the court actually our client only appealed to the circuit court and the circuit court said it was without jurisdiction because it was not filed time we are kind of not continuing people then but more retirement system and its assertion that it had a right to withhold reporting because it didn't want to pay the employees share falls short because the statute and to support it so situation we look at with stats forty point zero six so five the statute prescribes that if the employer believes it's entitle to recoup its payment from the employee it must do so independent reporting the hours wouldn't have given him immediate eligibility when he says he the way this is them works is that they report his hours and earnings and they're obligated to pay into the system the board the standard but he could in terms of relief here he wouldn't have been able to retire at the earlier time that he says he wanted to retire or would have retired if the reporting requirement have been complied with because he wasn't then no he was not try answering an eligible he met the eligibility eligibility requirements in two thousand and eight he could have retired trust fund has a right to recoup that money from state aid immediately which means if they had reported his hours and earnings they would have been forced to pay his his employer and employee share into the plan and he would have been eligible to retire immediately the whole reason the city refused to report is because it didn't want to pay and that's a violation of due process because the order required them to report him they knew that was that was going to be the result of that and they flagrantly refused to follow the court order i see that i have what's the status of the state litigation so the acquired employee contributions judge linford has already ruled that the city is required to pay both the employer and the employee cher for all of may please the court my name is material reginato and i represent the city of madison in this appeal it is undisputed that mr klugman is currently receiving every single penny of the retirement benefits to which he is legally entitled to receive available state and administrative remedies a delay which started in the early one nine hundred eighty s which was around the time but i was born and which lasted for thirty years with respect to any protectable property right associated with the initial enrollment in the w r s that property right was created in december of two thousand and nine through a negotiated labor agreement with mr clemens union in the city of madison the city complied with that  agreement and enrolled mr klugman in the w r rest at around that time there was absolutely no protectable property right to have mr clyburn enrolled at any time before then because the city made a initial determination  claiborne was an independent contractor rather than a city employee pursuant to wisconsin statute forty point zero six point d and because clinton did not challenge that determination which he could have done under wisconsin statute forty point zero six one which serves as a procedural mechanism allowing individuals to challenge these types of determinations through administrative review through up through falling to the e t f mr clinton knew that he was an independent contractor in the one nine hundred eighty s continued working as an independent contractor for thirty years and did not seek review of that independent contractor determination for over thirty years with respect to any protectable property right associated with back dating his hours to the w r s there was no definite property right to do that until april two thousand and sixteen when the danish county circuit court on a writ of manda argues that the e t f march eleventh two thousand and thirteen decision created some type of property right to have mr clemens hours immediately back dated and that is certainly not the case for various reasons your honor first the e t f decision did not specify let alone require any backdating to be done within a certain period of time let alone require the city to take actions to backdate mr clemens or the other stagehands e t f or of the other stagehands hours prior to judicial review of the e t f decision as this court indicated and schroeder versus chicago deadlines for actions to find what process and property rights are second city did not appeal that e t f decision but as the court pointed out mr clinton and various other stagehands attempted to clarify the e t f finding by appealing that decision immediately property right to having the hours backdated arose in june on june sixth two thousand and sixteen or i apologize in april of two thousand and sixteen when county circuit court ordered the city to report clemens hours with all reasonable dispatch and that was pursuant to a writ of mandamus that was pursued by the plaintiff in this case and that was not just him that was the other stat him that was just in your own finally or in addition the the city would have faced considerable practical fiscal and financial and and administrative burdens if it was required to later go back and modify the payment amounts for the back dated dates especially when considering the numerous number of stagehands that were involved in the e t f decision an appeal finally the city believe that it could not back  his paying his share of the backdated contribution because of wisconsin statute forty point zero six five which indicates that the employer shall collect from the employee all of the amount which the employee would have paid it when the amounts were due plus interests and was gone to statute forty point zero five one b which prohibited the city from paying contributions on behalf of its employees the city that's to lay in this case was reasonable considering the circumstances and considering the uncertainties in the appeals that were in process nor was clipping deprived of the property right to begin receiving annuity payments or to retire in january of two thousand and twelve wisconsin statute forty point two one indicates that an individual does not have the right even annuity benefit until he attains the age of fifty five until he submitted an application for the retirement annuity and until he separated from his employment in this case the city did nothing to prevent mr clinton from retiring and did nothing to prevent mr clinton from submitting an application for the retirement annuity it was mr clinton's choice not to do so when mr clinton finally did so in december thirty first two thousand and sixteen he began receiving annuity payments within thirty days which is what is required by the statute the fact that clement may not have received all of the retirement benefits to which he claims that he was legally entitled to receive prior to that time doesn't change the fact that he didn't retire and that he didn't satisfy the procedure the requirements under forty point two three one in fact it's very similar case was addressed by the district court in new york and see no versus new york teachers retirement system where fourteenth amendment claim was dismissed even though the city's conduct was argue that the city's conduct would have effectively deprived an individual from being able to retire  the court indicated that the individual still could have retired and it did official just would not have been able to receive the benefits that here that she was entitled to receive that she thought that she was entitled to receive in addition  enroll met into the w r s the city made the independent contractor determination in the one nine hundred eighty s and cleveland knew that he was not enrolled in the w r s that clinton knew that he was an independent contractor and that he was not receiving or paying into the benefits fund remedies existed to challenge that independent contractor determination under forty point zero six one which allowed mr clinton to seek administrative remedies and review back date as ours or earnings until they collected the back dated contribution this is indicated under wisconsin statutes forty eight point zero six five and forty point zero five one b and it was also discussed during labor negotiations with mr levin in two thousand seven during his labors of negotiations there was no agreement for the city to go back in and pay the employee portion of the back dated contribution cleaving also had the opportunity to be heard for thirty years and that's all that's required under the fourteenth amendment your honors he had the ability to seek administrative review as we discussed to the to the e t f under forty point zero six twenty all the way back to the one nine hundred eighty s he didn't do so until july twenty sixth two thousand and ten just a year and a half before the date that he's now claiming he wished to retire which is january two thousand and twelve taking earlier action by mr clement would have allowed mr clement to see vs city of madison to address some points made by posing counsel the court did not indicate that the city was required to pay the employee back that it portions under the statute the court specifically indicated that the statute did not require the same and used equitable powers in order to compel the city to do so the city appealed that and that it kills still a still ongoing you're going to have to wrap up your time has expired but yes your honor for these reasons i an employee's hours and earnings when they realize that they were entitled to benefits so the city came to the hearing based on clemens appeal in two thousand and eleven they came to that hearing and they conceded that he should be the hearing and conceded so you're maiming a property interest in the reporting once he can't retire until the reporting is made so it would have been that the defense has argued that that he never made an application one application would be futile because the hours and earnings aren't there in the system for him to receive the annuity that he's entitled to if he had made the application in two thousand and eleven he would have only been given fourteen thousand dollars because that's what he has earned since they reported him in two thousand nine so that's that's a red herring for moreover just like the supreme court decisions going all the way back to snake back and coming forward past matthews coming to cimarron versus birch and logan versus zimmerman and this court's decision in about and this court's decision intruder that when the when a predisposition hearing can occur this city has an obligation to provide when the city is coming to you and saying it didn't have to pay the employees share and therefore it didn't have to report but the statute says if it doesn't want to pay the employee share they can recoup it from the employee but it cannot delay reporting so in conclusion  for partial summary judgment on my ability as it's undisputed that the city refused to report his hours and earnings after it conceded in two thousand and eleven that he was entitled to them after the statute required him to do so and after the board order in two thousand and thirteen required them to do