dispute i don't think there's any dispute the at the initial appeal proceedings were devoid of sufficient constitutional due process the appeal breaks down into what i view is as three parts on our request for an injunction number one should a second hearing haddock occurred prior to the michigan state health team governing board in that question subsumes two of the issues in my brief one whether the board the state had any continuing jurisdiction to conduct such a  hearing and secondly what constraints were imposed on the district court or to the district feel were imposed on it by current law as to the deference of medical decision making assuming a hearing was to take place the second trying to issues we have  hearing hadn't taken place what is it you would want to happen what we requested the district court to do and granting the initial injunction was to order michigan state's health team to delete the report to the national practitioner but they're already sent the report in and they they very quickly sent the report after the initial hearing our position was that so so they couldn't we couldn't take it back i hopper so they speak now actually the data bank regulations and as well as the guidebook provide for corrections to and even removal love reports to the database but what would be the first one correction i mean there's no question your client was involved in a malpractise case there's no question that he killed another person during the same procedure there is no question raising you can raise with h h s right that's not entirely clear you can say you can say we didn't we didn't i wasn't involved in a lawsuit that paid six hundred twenty five thousand that's false yes although again we're not contesting that report of that malpractise case that's not an issue in this litigation h h s is very clear on a couple of things number one they will not undertak mission that's in the regulations at forty five c r c you can have one say one error or no mission correct in the first administrative hearing there was no findings no written record no record of any kind and doctor didn't have no basis to challenge what was reported to the database because he had no information to compare what was reported to whatever the basis was for the governing board's decision so what do you want do you want the district court to hold another hearing and say lost its jurisdiction to conduct any hearing and we want to know here and we want any report that's based on a hearing that lacked due process to be removed pursuant to regulations which permit removal so that's what we want if there's going to be a hearing we want that hearing to have appropriate due process protections under the constitution and where we take exception with how the second hearing occurred some of this is what will you show but if we say ok every conceivable aspect of due process that has come forth what will you show that will say that this shouldn't be report question you're asking god like i wonder hearing with all the due process you say you want what is it you know that would make a finder of fact say gee they reported the wrong i would go to the marriage we would argue with counsel's present whether or not he sure i'm sure as you put in i would put in cross examination of the witnesses who testified at the second hearing  it's called the likelihood of success the injunction we saw was an injunction with respect to due process and we did show a lack of process bottomland of all of the us unless there's some underlying inaccuracy what was reported you know you got a problem at the end of the day and at the second hearing the only thing your client presented was his statement or testimony and i'm not sure about  way that judge to have rich's asking you what else do you have i mean it's not apparent at this point that your client is in any position to contest the underlying facts that are action was taken against him the governing board my client suffered a handicap in developing that record before the governing board because he wasn't afforded not to have who would be surgical practices here in indeed the testimony of some of his colleagues who served on the peer review committee vindicated some of his practices and the question before the governing body was with a summary suspension for instance he was successful in the second hearing in disproving the notion about answering the call there was a dispute between two doctors over who should handle the call a patient of that was reported to the data bank the first time around  there was testimony developed in deposition that the testimony you talked about already was part of this decision deposition testimony about new testament that would indicate it is surgical colleague whilst a patient needs your attention i mean that just doesn't add up to me but that is sad you're you're clearly confounding your mia to the least serious of the three incidents the other two are deaths under can situations when people would not have been expected that in connection with the laparoscopic surgery that were being performed and did he make any effort to defend himself in connection with those who does he have any medical experts or others who would say that his performance in those situations was appropriate the district court felt constrained to what it could do because it believed michigan state did have jurisdiction and could hear a second hearing for her after the employment relationship ended the question that th to figure out what relief you want from us i believe the district court abused its discretion when order to second hearing because i believe that michigan state lacks jurisdiction absent jurisdiction it shouldn't hold a second hearing absent you can explain anything you would put in this hearing other than your great ability to cross examine cross examination is an engine for the truth i mean very first they were yes but the fact finder would have a new version of the facts a fact finder could consider more fully what actually your cross examination is successful assuming it is if it's not successful we may very well have the same outcome but the question is should doctors before you have more than the really rock of your client  walsall have an official united states district court finding him incompetent never get a job he would have no more than that than he does today if the relief were a third hearing with counsel and there were a determination by the governing board it's a pleasure to be here michel kiley appearing for the thin mints university defendants first i learned just last week that the department of health and human services process has been invoked earlier this month and there is a review i'm going to h h s regarding the data bank report i have not seen whatever that would have been at one point or enters the question was put to counsel what you want and he said earlier on full due process i just want to advise that at the here for the plimer injunction council agreed expressly with the court suggestion that the constitutional provisions set forth in the letters authored by me earlier particularly on may thirty first the fourth of five letters seeking plaintiffs cooperation sufficed to provide constitutional due process that's at page line the procedures used rather it was a narrative in which i employed counsel to join and explained that it would be bias free we could get an outside hearing officer away from the university if desired we'd have transcribed there'd be cross examination listed a number of the procedures that i understood were of concern and invited counsel to advise me of anything that i might not have thought of at that point i still employed at the university his employment ended june thirtieth two thousand and twelve up until that time it was we were unable to communicate a secure communication and then later run the argument was i can't help but wonder whether that what was underneath all this only because i tried so hard with letters and phone calls to establish communication and came up empty effect in june fifteenth two thousand and twelve counsel's request i put off the plaintiff's deposition which was scheduled for two days later because i was told to confer with my client we may want to have another hearing and never heard anything further that was  judge still has jurisdiction of the case right does as i read him once he had minute once he does that once once the agency or he exhausted has exhausted his ministry remedies emergency injunction modification the last order from the district court the last couple of pages that the court explains look now that you've raised these new urgent months indeed about h h s you would need to proceed there before i could will and that so the court declined to go there i'm not sure the court expressly said it but presumably the court would be willing to go there unless the court were you exhaust your administrative remedies right correct and so when he does that presumably the court still has a case and income bracket ask or to do anything  i don't think plaintiff is constrain that was the argument on modification once we learned what had occurred and with the second hearing is that the first database for the only data bank report occurred after the first hearing he says you have that read to the due process that the judge put out i agreed and i would agree with this panel that ultimately what was proposed on the fourth or fifth letter comports with the current law of the district on what due process my client was entitle to clearly when we're suggesting that he ought to be entitled to have counsel with boys we are suggesting a modification to yeah sure that is a change in law i cannot fault the district court for what it ordered nor can i and i did represent to the court court asked me is does that hurt my my understanding of current law and i said yes go i think that is a correct assessment of current law that law puts a publicly employed position in the very dangerous position