good morning your honor may please the court andrea oser for defendant anthony a new chia i have reserved two minutes for two reasons mr ngugi is not personally liable for anything more than nominal damages for the time that shawn early spent in state custody on a term of post release supervision that was never judicially imposed st he is entitled to qualified immunity under the particular circumstances of this case and under this court's sort of reasonable objectives analysis issue that you disposed of was a different one when the last time this case was before the court we argued that the law was unsettled in light of subsequent state appellate precedent and this court rejected that argument we're not here obviously to litigate that the court remanded the matter to decide whether there were any reasonably objective steps that the defendants could have taken to attempt at least to remedy the situation and in a subsequent decision in the class action that is related to this potentially this court ruled in two thousand and sixteen that the reasonable steps the steps that were laid out there were not objectively reasonable for purposes of that class action because the defendant had waited some fourteen the multiple defendants had waited between fourteen and one thousand months before taking those steps but that case doesn't constrain this case and the remained in this case because there were particular facts in this case that would have made those steps you can view them  having been accomplished or they would have been futile in the narrow time frame that issue which is the time that mr new she remained in state custody while his federal habeas petition remained in litigation basically your argument is that  nucci acted reasonably in the circumstances of this case we have to consider the court's this court's specific instructions in early one about what was to happen with regard to mr early on  that is that one way of looking at it yes but but and you know what the court is saying is what the court has said is that he had to at least attempt to to to notify parties and get mr early back before state sentencing court the court has never suggested that that that defended a new chief should have unilaterally excised the p r s term and released him this matter was all was pending before a federal habeas court and so mr knew she could reasonably did further to the district attorney representing the state in that proceeding it happened that the district attorney opted not to pursue me sentencing while the hay vs was pending and while a cert petition was pending from this court's early versus murray decision he didn't want to move his own search so as long as that habeas part proceeding was pending mr ngugi could reasonably assume that the matter was in the hands of the district attorney and the federal habeas court and of course he would abide by any ruling that that federal habeas court issued once that habeas order was issued and it took effect and there was no stay mr early was was released but nothing he could have done in the interim  any any going through the formalities of notifying the da the da already knew about the matter notifying mr early mr early knew his own circumstances even notifying the state court at that period of time would have served no purpose because both of the parties state sentencing courts and the da could have had a receptionist or that's or the state writ large could have excised the p r s term he didn't believe that this court's decision authorized him personally to take those steps what this court has said is that the procedural safeguards that would have addressed as well he was general counsel at the time he was general counsel to the agency wasn't in charge of the agency and in fact the the record evidence was that he was not aware of this issue until the court's decision in early versus murray he's being faulted once he learned of the situation for not responding promptly enough with court we instructed the district court to issue a writ of habeas corpus excising the term p r s that's exactly what your argument is that there were specific instructions as to what happened coming from that this court to the district court what happened is it goes back to judge korman it takes him until may two thousand and seven to determine reasonable time that takes a while the chairman of the petition was timely that that decision comes out in may and then he puts in a stay so that the d n a might have an opportunity to seek recent acing if they wanted to d n a then says no we want to seek search so it was all before the district court during this entire period that's exactly right so it's not clear what mr knew she could have done with regard to this case even if he was disregarding obligations with regard to other cases that's exactly right this case is is separate is unique i'm not saying it's the only one of its kind it's the only one i'm aware of but it's quite different from unnamed members of a class action some of whom may not have even known that they were subject to improper p r s terms and so the court indicated that dom should have been taking steps to identify who those people were and to let the know about that issue none of that applies here this was a case that was an act of litigation in the federal habeas court and it was hold on a qualified immunity as an objective analysis what you're looking at i mean it i'm looking i'm telling you what he said yes i'm going to not only what he believed what what he told the agency and that has serious repercussions for other cases and the cases in the potential class action where where this court is saying that reasonable steps taken promptly might have made a difference but it has no repercussions for the specific case for mr earlies case because in the time frame that is an issue in this case nothing he would have said or done differently would have made a difference in that time period and so you can look at that as either he's entitled to qualified immunity or the plaint has entitle to no more than nominal damages nothing he would have done would have made a difference in this limited time frame once there was an in effect hey vs order that was not stayed mr early was released this was really the norm i'm sorry  are correct why use would he be why would only be entitled to normal well if i'm correct on qualified immunity he's not entitle to qualified little damages on the case gets dismissed yes but i'm just saying you can look at it you can look at it either way and finally i'll just mention that even if the court disagrees with both of those arguments we would still ask that the court vacate the judgment and remand it with instructions to recalculate the damages  eliminate the enhancement for three circumstances that were not natural and reasonably foreseeable consequences of mr earlies prolonging concert incarceration unless a part has any question thank you manner as it relates to mr annuities actions and the reasonable or in this case the lack of resembles objective reasonable miss in his behavior your honor as this court indicated mr nucci did have options and in fact he opted to disregard this court's orders he opted to disregard in two thousand and six the early one and early two decisions from judge walker and is this core pointed failed to do and his action of affirmatively indicating to his this is an i'll take a step back in a minute about the district attorney's office i don't want to disregard that issue but in this particular issue mr new ci went out of his way to say i disagree i disagree with this court's ruling because there are issues with regards to how the state may fight on this issue and i find that this court made it perfectly clear i would suggest after early that this court's decision early in the case had been remanded to judge korman and judge korman had found that the petition was untimely and let's say he was correct hypothetically and therefore i am not going to order mr early release he does not qualify for habeas would mr ngugi still in your view have not been entitled to qualify immunity very good question your honor his and i take to give the depends answer because there's a lot of steps into what your honor was saying st i would suggest when you look at the end maybe this isn't the proper terminology but that the law of the case if you take this case and it's a tallahassee i would suggest that it appeared from the way the court if if this court would have said it was soon that it would have then been remain appealing assuming let me be clear my hypothetical is that it went on remained tense carman denied the petition and let's even assume that it was appealed up to this court and we affirmed for whatever procedural basis let's call it lack of timeliness assuming that assuming that it was correctly denied on a procedural ground would mr n entitle to qualified immunity or not if it was correct if it was denied procedurally i would have to say yes it would it would so and then play out why i asked that  hypothetical if if there was still an ongoing legal process to determine whether mr early ought to be released wasn't mr nucci entitled reasonably objective lee reasonable person in his shoes and title to see well let's see what the district court rules in this particular case no your honor and here's why mr a new chief had and hopsin that was plain as day two not he could have kept he placed mr early in custody so at that point when i say he obviously his actions in the his behavior compelled the those underneath him to keep mr early in custody there was nothing that compelled him to say we're going to keep this man in here  in custody incarcerated until this issue is resolved and in fact i think magistrate stuart the judge the court below in its decision to give a very good rationale as to you can't just perpetually keep somebody in to move out an issue and and again on this particular issue there was nothing that would have stopped the this defendant from saying hey let's stick step back with abide by this court order let's let the process play through and then send well then he can certainly be remanded back in to custody or have a proper hearing at that point time but i think it goes back your honor to the issue of what this defendant was doing in doing and so really laid that out and candidly i don't believe that there's been any substantive change in the defendant's argument as to why he should either receive as the coordinator of docs why he should receive the qualified immunity and certainly the corporal ration that out both at the summary judgment level and then again at the trial level because again as the court this court will recall the trial court gave an option of looking at  went through i think quite thoroughly and i say that mr really didn't win every issue either but i think when you look at what the court below was doing is it took this court's guidance took the roadmap a vincent and followed it right down the line it's actually so clean that it it's i hate to use this term because it was kind of fun and i don't mean because of the the ruling but it was fun because it was  was logical because it just took with this court you sang in applied it and that's that i found to be something that shows that the court below had had gone through the rationales and just as i think your honor when you look at what the court below says there's the case is a little different but the warranty botak the matter words there's no harm no foul well there was no harm here so you get to go through all of those steps i don't think  fair for the the defendant try to utilize that now yet again but more importantly i think it was reviewed by the court it was rationalized as to what should happen and i would suggest that anything mr nucci made it clear that he knew it was going on by his actions and i just ask you tell me if i'm distilling part of your argument correctly and it's sort of a follow up on what we've been saying it's my understanding that your argument at least in part is that even though there were still ongoing litigation before the district court about whether he should be granted that the path forward was so clearly in favor of the p r s conditional release them is that and if it had been a trickier and harder case then a reasonable person in mr new situation might have said well no this is this is fuzzy and we don't we don't know how it's going to play out in the district court just some person off the street he was fully aware of the laws and the rules and nd your honor to your point and then by the way there is a rd option that you could have done which is to just remain in order to state court and have the judge recent and some were not  happened back to your point your honor when you look at what took place and knew she had done or did you need the d n a to do that department of corrections can contact the court at any time your honor they do it all the time and i think the record shows that that is not an unusual action in effect administr address that issue the recent case kind of addresses that issue and it's think this case if you'd done that you would have your argument is i if i'm understanding it correctly that he should have understand understood that the merits of pursuing this any further in fact he did the opposite he made it clear that he was not going to abide by this court's order and i just i think to follow up and i know my time is up so if you have further questions but with regards to judge parker starting with i just found it remarkable what he said in not abiding by a court's order and that's record and that is just that his record and finally your honour's with regards to the issue if i may just take a couple extra seconds on the issue of the damages one yet again i think that the court did a very good job of explaining the rationale as to the damages that were afforded in this matter it's certainly in my mind a middle of the road because the court explained some of the higher ends in what was too high some of the lower ends in what might be too low and i think he did a young man's job of  going through that issue and for those reasons your honour's i'd respectfully request this court affirm the judgment in its totality unless you're going to other questions i thank you run he said he wanted courts to order the release of these individuals he didn't want to take it upon himself universal unilaterally just simply excise these terms that were intended and we know in this case the state court under caesar th court well he had no authority to send something back to court the most he could have done was informally notify the state court and as i've said when you have a matter where both parties to that re sentencing were opposed both the da and mr early it said there's no reason a reason to think that the state court would have acted i will say to follow up on your question what if the heaviest petition had ultimately been denied his untimely i don't want to look a gift horse in the mouth mouth my opponent is conceding that then mr n qualified immunity but i think arguably at that point the reasonable object is the reasonable steps analysis kicks in right that he is denied because it's untimely that doesn't change the fact that he is being subjected to a term term he misled this court when he indicated he hadn't been advised so the da might well not have a post re sentencing and that might have proceeded but in any event at that point there were certainly reasonable there would have been reasonable steps that would not have been futile but until the hea litigation was concluded nothing would have happened and a note received by the state court would have been at most held in abeyance the state court would not have convened something in taking this away from a district attorney that was  case thank you thank you both and we nicely argued and both sides will take it under advisement the next