courts refrain from creating such a threat and when congress has created any alternative existing process for protecting your party's interests that alone will preclude accession of the evidence congress in acting the statutory process governing financial unfortunate proceed schrock a delicate balance between protecting the national banking system and encouraging vigorous enforcement of the banking laws on the one hand and getting adequate process and protection for those in administrati important proceedings and those who work in the banking industry on the other hand and congress did not instruct how is how is the banking scheme different from any other context an administrative agency might take scheme the eighth circuit in singulair against talking looking specifically at korea and the banking context noted that congress did they went into a senate report saying that you know we were paying attention to this careful trade off on either the interest and mr libby ultimately is alleging that he was subjected to a baseless enforcement proceeding and there's no question that congress did give to protect the institutional and other in under cases like schleicher against you're lucky there doesn't need to be a specific remedy for the first amendment aspect of the harm i mean in that case the social security applicants had no  constitutional that needed all the only thing that they could get was what they should have gotten through the process initially which was their social security benefits and the supreme court made very clear that the fact that there was no additional remedy for the constitutional harm was irrelevant and the same is very much true here there is there was certainly a process for protecting against baseless and force and actions and although there may not have been a specific harm to us t this your honor but of course that isn't the sort of claim and this court would not need to make any sort of a ruling as to those sort of facts in a context like this where the claim is ultimately fairly run of the mill the agency instituted enforcement proceedings against me because they didn't like my speech and it and as noted congress has provided remedies for people who are in these sort of proceedings and it's certainly protected created an alternative system process cases and i think that's actually significant because do open up the floodgates here and say that there is a first amendment or tell you asian claiming administrative foresman proceedings would potentially have a very significant specific well we did allegations saying what each individual defendant had done to violate the constitution and that's entirely absent here this is ultimately a retaliatory inducement a case that is no one is contending that these a reasonable inference of bad motives just just at the pleading stage that we have to accept as true the non conclusionary allegation that the regulators said and again i just want to return to the idea that there is no actual explanation of why the defendant out of anyone who works at the r c c they work the only thing that these people really have in common is that they worked on both investigations which i was surprising in so far as one investigation was the outgrowth of the other investigation but there's no specific allegations as to why one of them you know out of all the people who work at the r c c it might have been embarrassed and angered at patients relating to the hamilton investigation of why these three were the ones who were particularly anger and why these three what action they actually took to induce the o c c to bring charges so you're case involves a fraud on the court and on the judicial system because this is a case that should never have been brought now that's very important for a couple of reasons but one of them is that when the question is and the the appellant's raise the question of the court of this is a new question is who should decide whether to provide damages remedy congress will courts in a situation where you are dealing with a fraud on the courts it is much more of the court's jurisdiction to examine that fraud and unless fraud and decide whether there should be a penalty on it rather than congress you cannot assume the congress in and i think is that you can't replace a possibility that the statute is going to be misapplied in a retaliatory prosecution that should never have been brought i would think most defendants and enforcement which is very different from the f b i agents in business itself or the prison guards and i guess carlson there's a case that just came down from the ninth circuit that i would like to procedure this case involves again we go back to the question of who should decide whether damages are appropriate here or not retaliatory and that process as i said is a fraud on the courts and it's something that attacks the intacta gritty of the judicial system and the judicial process and therefore it's something that the courts themselves should be very concerned about and where the courts logically are just as qualified or more qualified than congress to fix the remedies that that  because to have a retaliatory prosecution case i am going to have to prove that there was no probable cause that there was retaliatory motive and there was fraudulent inducement of the prosecute those  conditions in hartmann and hence more if those conditions are present then you do not have a standard enforcement of the statute by an agency and that's why i say that this case falls outside the statute it is not it's it really it could happen with any statute and it will work where for reasons of retaliation and is anytime your suit understocked you and you win the statute itself is your alternative remedy the fact that you wanted your alternative remedy and that doesn't make any sense because then you could never have a title or prosecution because if you win a statue was robbed from everybody and if you lose well you lost you were you were property from the sponsible so i don't see how the statute which is used to attack you can itself be your alternative remedy and there is no remedy for area there was no action i could have taken of any time moreover it's clear that i thought outside the statue so the statue of being applied to someone to whom it did not even a found that your reports had harmed the bank he you were you were a what you were a lawyer for the bank you had fiduciary duties under the law as it existed at the time they could have gone after you basis your honor this is a very unique you know this part has already found that there was no substantial justification for the case against me as the reports didn't harm the bank well that's right but here's the thing this  seems different from like there's a scheme that regulates lawyers and the government uses in to go after a dog i understand but here's the thing the statute had certain requirements before you could proceed against some one of them was what you just touched on more than a minimal financial loss to the institution the government never even tried to prove that you never try to establish and then most embarrassing when the agency had ruled he ruled you had it wrong all along now ask yourselves why is it that an agency pursues a case like this prosecution case like this for a couple of years without first going internally to their own staff and their own general counsel and and asking them what is a standard it's extraordinary when you think about it that they prosecuted me for two years and they did not know what the standard was within their own agency is contemplation what the standard was for damages for and there is it's a remarkable situation really and it's one of those other because they were going to make me pay and if you read the complaint if you look at the complaint over and over again and you look at the things that happened during the trial they were showing they were shameful abomination in terms of judicial process they should never have happened and they cannot be explained other than that something very very strange was going on here can i ask you about again i think that forty four fifty two fifty six sixty one whole or what i want to time what's the first one forty four ok and what it what is it in forty four that i don't have a complaint here but i did take all that down you have your complaint so here's jay he's nineteen the complete lays out explains that in two thousand and one i wrote some letters that were harsh  and a certain time a certain place or anything like that your honor with the complaint says is that the defendants induced the prosecution but as you understand quote knew of condone and willfully and maliciously agreed to subject him to harsh conditions of confinement as an adult policy solely on account of his religion race and national where did you say your complaint something more than what the plaintiffs again your honor it's scattered throughout the complaint so i'm trying to say that there's probably if you find that this complaint is not sufficiently detailed that's my fault and i would like leave to amend under rule fifteen so i can add additional detail to address all of the points that have been raised five dollars let me give you an example why did they wait the two thousand and six they tell you some of themselves in their brief the final case involving hamilton bankers decided in the summer  and six only after that case was resolved could they bring this action without fear of being embarrassed because a tribunal another tribunal might disagree with them i will grant i think that goes to the plausibility question internally i don't think anybody could ever know that this type of case is impossible you have to know what exactly what steps the government officials took internally the proceeding was not justified in bringing it that is precisely the sort of thing first that many administration first and respondents would want to say and second that congress has provided