you your honor smith please the court tarbert from the kelleher firm in albuquerque here on behalf of the defendants the reason the court should reverse the district court's denial of qualified immunity in this case is because the plaintiffs have not c burden in relationship to the second strand of the qualified immunity analysis that requirement demonstrates requires that the plaintiff show that the defendant notice that their conduct was violet's of of clearly established federal law carrying that burden usually entails citing the united states supreme court or tenth circuit precedent which is closely analogous to the facts at issue in the case a high degree of generality is unacceptable and the point of that requirement is to demonstrate that the defendant understood that the specific conduct at issue violated a federal right that requirements not satisfied in this case is matter of fact controlling precedent demonstrates that it's improper to look to violations of state law in an attempt to satisfy that requirement of course the conversation has to begin with the davis case the davis case involved a florida patrol highway patrol employee who was working for a county with the permission of the of the department and he decided after being asked to relinquish his the vision of the county that he had spent too much money on and uniforms so he refused to quit so he was fired after a long exchange of letters and conversations and he later sued claiming that because the department had violated florida statute regulations requiring pre term a nation post germination hearings that the condo violated his due process rights the fifth circuit in the district court using it to talladega the circumstances approach decided that the violation of the ford regulation could be folded into the qualified immunity that that violation disqualified the defendants from that immunity the us supreme court rejected the totality of the circumstances of approach and concluded that the existing qualified immunity test the traditional one until two requirements demonstrating a violation of federal law and demonstration that the federal law was clearly established it flatly rejected as irrelevant the notion that violations of state divided panel of this court which included judge holmes considered the possibility of adopting and a scope of it of authority exception to the qualified immunity test judge hart identified one of the problems with adopting such an exception as being the close relationship perhaps indistinguishability between what davis prohibited which is folding in determinations of whether the conduct violated state law and the question of whether the conduct exceeded the authority conferred on the defendant by state law judge holmes disagreed the such an exception should be even entertain concluding that was flatly incompatible with davis and its pro the stanley vs gave us opinion is approximately a year old and i point to it as an indication the davis retains its force as the pollstar but that question is what forced at that have here because i think arguing art vs two here it's my understanding what they're arguing is that in the face of this clear statute that dictated your obligations you did not go for it and therefore you violated outrageous that at least as i understand it is their argument and if that is their argument that's a little different than data to nothing davis is irrelevant i'm just saying that's not the argument that was rejected in days as i don't tell me whether you agreed that  won we have here your honor i see the point i see i still see davis is giving us the answer to that question davis still says that you have to point to clearly establish federal law which means that you have to demonstrate that  circumstances of this conduct would violate substantive due process standards and we don't have any precedent cited you did by the district court or by the plaintiffs that satisfy their requirement judge parker cited robin serve the purpose that we're looking for here which is a precedent that would tell my clients that this conduct violated substantive due process and it's in the same vein the two cases cited in in the plaintiff's second brief on cross  fifth circuit case in a six or case neither of them from the tenth circuit don't deal with substantive due process don't represent the weight of authority those cases also don't satisfy the notice requirement that the second pr qualified immunity analysis entails every looked at state law to turn on the question of substance for these purposes your honor it's a concert only be part of an analysis and you know i agree that that our clients should have done what they told the new mexico supreme court they were going to do they should have promptly implemented the demands of the statute they didn't do that and  know i say this lawsuit that it's a whole series of lawsuits is a long history of disagreement lit the litigation but i what you say has to be true is that the whole matter would have concluded if if  mr dean and mr secretary bussy had done what they told their lawyer told the new mexico supreme court they were going to do that that is not the answer to the question of whether qualified immunity is appropriate in this case or the missing ingredient you know in the end you can look at the statute and you can make your own decision but the the cold hard reality is the new mexico supreme court decided the statute is unambiguous that it imposes a duty on my clients to do what they said they were going to do  the second hearing so that the whole issue about ambiguity and litigation and stay i mean those arguments were essentially relinquished when boyer from my client's told the new mexico supreme court they were going to do this so that then it becomes a question of whether that violation of state law satisfies the second strand of the qualified immunity analysis and my point is we've said this in the brief many times you said this in the gray goose case you can't point to the clarity federal subsidy of a new process write it look at that ambiguity as a rationale for violating or for failing to execute clear agreement you had issues of the court order to stop federal what's your honor you give some excellent advice earlier today which is not to be bashful so i won't and i disagree with the premise of your question i don't i don't want to i don't think we're talking about you know whether the statutes ambiguous or not ambiguous i don't think we're talking about harmony i think we're talking about a failing on the part of the plaintiffs and on and on the part of the district court to identify a precedent any precedent that would satisfied the second strand of the qualified immunity the notice requirement of the qualified immunity could let me let me ask this question though on the clearly established law prom ok now i know that's where your focus part of that announces it's going to be is going to turn on whether there's a case that matches this fact that are ok and so i just want to be clear on i thought i understood from your brief that part of what you identified as being unique about this case is the fact that there was an administrative day in place all of the time up until the supreme court ruled in other words even after the twenty eleven statement we're going to fix it that that at least understood you to say your client could have harbor some uncertainty as to whether he could act on that twenty eleven directive because of the stay that i use that that is the argument your honor and i guess what i'm saying today is that once my client's lawyer stood up and said we're going to do this that excuse probably no longer sufficed but that's part of judge parker decided that maybe this is conscious shocking in the context which will have to be developed by discovery so you're not saying your client argued any answered your i mean are you walking away from that i'm saying that that's not relevant to the point i'm emphasizing today which is the second strand of the the immunity analysis and that that is something that's different about this case and but i mean i don't think our promise i did anything that even remotely resembles the circumstances in their attempts to satisfy the second strand of the analysis i'd like to reserve the rest of my time for it i'm not i'm left little concerned that you didn't do enough there i mean so i think i don't know whether you can make a firm which may be sufficient in your brief now but you can you can try certainly if you think there's a deficiency in the eight seems to what they are inextricably intertwined we're talking about lena buddy who as we indicated in our brief made a representation to the new mexico supreme court that she would take care of it and those facts are inextricably appears to us appears to the plaintiffs in this case that resolution of ms but at this point resolution of the procedural due process question at this point would assist the parties in the questions are very much intertwined in the opinion makes very clear that the supreme court admission admission by the state of new mexico by the workforce solutions constituted an admission of a legal duty in a clear interpretation of the statute the supreme court said that this is a clear responsibility and let me be clear here what happened in the supreme court the state of new mexico didn't say to the supreme court we're not going to be able to set the new rates in four  five months we have satisfied our obligation by doing nothing they didn't say anything to the supreme court about the fact that there was a day which would prevent them from executing their duty they said we will do it in four to five months in two thousand and eleven by the department of workforce solutions the supreme court also indicated as we all know that did duty in question was identified as ministerial so there was a clear and obvious duty a clear and obvious duty by the way which admitted by the department of workforce solutions in court in front of five supreme court justices the third really compelling reason from our perspective is that judge parker identified the action of the state of new mexico as shocking of the conscience the bottom line with regard to that issue is that there have been six judges who have evaluated the conduct actions of the new mexico department of workforce solutions here's the way that they've described it these are not my words these are the words of supreme court justice is inexcusable unacceptable irresponsible and shocks the conscience that the violation of the state law is described by supreme court justices in that manner yes and there are two prongs qualified immunity and at most what you're what you've argued would get to number one we get you a violation of the constitution it doesn't get you cruel established law and what i find interesting  consistent reference to the supreme court is there's only one supreme court i'm concerned about for a clearly established law that is the new at the print court so why is it relevant at all with the new mexico supreme court said well so you hold them in contempt a violation of a state law is part of the analysis there needs to be a violation of the federal law and we have argued in our brief that there is a clear violation of federal law and that is the stuff and have rights of a wage earner in a point the court two cases that we have a pretty unique fact we do and so tell us how we do it clearly and we wanted was one of the things judge parker said in his opinion is that we shouldn't go walking through every single site of every single case to find a comparable s a comparable set of facts but instead we should look at general principles and in this case the general principle is that you have the right a substantive property right in receiving a specific wage when you look at this face when you look at the actual people who have been harmed you have thousands of workers in the state of new mexico who are entitled to a specific wage rate and were denied that specific wage rate and that that that right to receive the wage rate that they did not receive is  to the record he cites to the oral argument where the attorney for salina bussy said the secretary has personally represented to me and i am representing to you the new mexico supreme court that this will be done within four to five months so we're not objective standpoint i give them to say they're walking back on that that there was a clear violation of state law from an objective standpoint and we all know and we all understand that the second stance strand was that there was a violation does that i'm out to a violation of a clearly established federal right yet does the right to receive wages that the government is legally obligated to pay is a substantive right and there's no will face federal liability for doing that i mean that that really is what this is about i mean you know you there are remedies that your your client could have had for violations of state law presumably he could have been for you know i don't know what it could have been sure i'm saying is there would presumably be some remedy relative to disobeying state law but why would that put him on notice and were you know some of the language in the cases it's immunity for acts which have been described by the new mexico supreme court as inexcusable unacceptable and irresponsible that's what you're deciding whether you're going to get in excusable act immunity now the question bleeds into the do the procedur the reason we are here in federal court is because there is no adequate remedy under state law to recover the wages that thousands of new mexico employees did not  eldridge which said that procedural due process involves meaningful time in a meaningful manner in new mexico supreme court ruled in twenty fifteen that there was no mechanism by which the employees could be paid their wages and properly compensated that's why we're here that's why there's a procedural interception a violation of  is right in saying that the second prong of the qualified immunity analysis doesn't require the scavenger hunt you don't have to find the cases precisely identical exactly on point but it's really important to stress here the theory protect the wages of americans earn in their place of employment whatever that means no your honor our position is that there were precedents that would have provided fair notice the warning requirement that the second strand of the qualified immunity is intended to accomplish there was nothing out there in the area of substantive due process that would have told mr dean or miss bussey that what they were doing here violated this area of the law with with few guideposts so not only aren't there any precedents that directly addressed substantive due process in settings like this but the nature of the law itself would lend itself to the necessity of something fairly close to the circumstances to provide the miletus that would satisfy that requirement i disagree entirely with what mr hughes said about state law violations being tantamount to a violation of federal law that's exactly the opposite of what that's exactly the opposite of what judge hart as opinion in judge home says opinion said in the guy old gray goes case there's no law that says that you can point to a violation of state law and that carries you directly to the conclusion that effect allowed payment of those ways and now we have a collateral attack on that agreement by saying oh no it's a matter of substantive