please the court i'm leon greenberg i am arguing today on behalf of the palance i would ask to reserve three minutes of my time for a bottle in this case the district court needed to consider three questions the  such that it would require an examination of that benefit schedule and vision of that schedule over time reflecting change circumstances now if the administrators duty to do so was  discretionary the nd question of course is whether the administrator could invoke qualified immunity in respect to their failure to amend that regulation after a long ceased to pay present value and assuming that the administrator could invoke qualified immunity the rd question that the district court had to answer was whether the plaintiffs had also properly set before the district court claims that were outside the scope of any qualified immunity because they were of where you're seeking to recover damages against these individual administrators on the basis that they violated the united states constitution p d benefits they relate to the ok not that i want to with the constitutional violation there because you're not you're just alleging a violation of the statute if you were you'd be out here yes you're on a well the constitutional violation is a substantive due process  violation respect the property rights of the palance because they had a right to receive that lump sum payment at present value and the if so later sign that you claim there's a liberty interest involved well your honor  there are two interests involved there is a property interest and this was actually recognized in the american manufacturers case in one thousand nine hundred and nine it is in the record and was briefed to the district court the district court did not address these issues in its  these program administrators interfered with your property interest in getting the correct amount of benefits and therefore that's a substantive due process violation that is correct or are they had a substantive due process and it doesn't your property interest depends on how you read the statute though so it doesn't come back to statutory interpretation i would agree and in that respect i would draw the court attention to what the district court never examined which is in fact the statutory framework in the statutes that the appellant's rely upon and the district court's decision the district court looked at section four hundred and ninety five dollars and said this is what the palance rely on sh relied on in fact it's not the sole provision of some p p d benefits at present value it's also the ministries duty under section four hundred and three dollars to issue all regulations which are required by nevada's workers compensation system to pay the benefits that insurers must pay that is a freestanding overarching obligation that the administrator had here they could not issue regulations to not pay the benefits required by statute they could not issue regulations that were contrary to what the statute said those benefits had well be but where's the requirement in the statute that they pay these benefits the requirement is in section four  this is discussed to page sixteen of the brief and for ninety five dollars says the lump sum hable must be equal to the present value of the p p d compensation award so the requirement under four assuming that they have to issue these regulations and whatnot doesn't the administrator have discretion to decide you know how much it should be after canvassing the act what are they called  problem here is that the ministry has some discretion but it has to be based upon actually consulting with well they have any discretion in any of this and they have the right to assert qualified immunity well your honor it's a question of whether they violated a non discretionary duty if we examine the trotter case which was what was cited by the district court in trotter for example it was a quick it was a question of the navy putting forth an advisory analysis as to land use issues and the allegations were that the navy violated non discretionary duty to properly count the planes and the traffic and so forth but ultimately it was awful in making that report exercising discretion in the form of analyzing and weighing various factors in terms of what its vies meant would be and that advisement was not binding on anyone in this case the statute says that the benefits must be paid at present value present value has a specific meaning under nevada law which is that it must look at the payments the future flow of payments using a reasonable rate of interest what's alleged here is that in two thousand and fifteen the administrator was aware that the unity table had not been revised since two thousand and fifteen years earlier and they were also advised that the assumption that was underlying th they have the only discretion they have is to consult with an actuary and rely on the actuarial information that is provided to them in this very discretion to update would update the table so they do not have discretion as to whether to update the table if the actuarial information indicates that it's no longer paying present value where where in the statute does it say what you just said that he has once you consult the actuary and the actuary reports the  section regarding four hundred and ninety five which deals with the present value that is not specifically mandated right however they must consult but they must there's no duty to act upon the consulting information is there anybody disagree with the come salting actuary maybe not they may only do so if they if it doesn't pay present value your honor that's a question of not having they may have a y is to exercise and fulfill their obligation under four hundreds of three if you have ever tried a personal injury case involving lost wages the same act the same computation is always use there and there's one expert for the plaintiff and there's one expert for the defendant the plaintiff expert has a low interest rate to arrive at the reasonable value and the defense has a high interest rate we know that if the the plaintiff has a long actuarial life and the offender has a short actuarial life the general the jury can choose between knows there's no demand a tory duty to choose one or the other why is not the same thing true of these functionaries and in about the problem here your honor is that the record reflects the allegations are the we're not going to change our minds this is in the record at page fifty of the complaint specifically alleges that in two thousand and fifteen there was a prior proceeding administrators we brought before the administrator advis them that they need requesting actually information about the review of the actuarial tables that was disclosed at that time those tables had never been reviewed in fifteen years even though the statute requires an annual review it was disclosed at that time requires an annual review does not require an annual adjustment that is correct or wrong but the but the straighter never reviewed it in fifteen years at that point and at that point it was all the administrator was also that the tables were inadequate and the request was made that they be adjusted which the administrator did not look at the docs take the next step you say they had a myth they haven't nondiscretionary mandatory point you to section four hundred and three and section four hundred and ninety five five thousand four hundred and three says the administrator shall prescribe by regulation methods by which an insurer may have prove or reject claims and may determine the amount of nature and nature of benefits paypal and connection there which so the administrator shall issue the regulations by which the insurers can pay the benefits provided for under statute benefit provided for ministerial functions that they had to perform otherwise once discretion is in but is available to them in any step of the way they're entitled to qualified immunity your honor in the event thriller entitled to invoke it and then you have to ask whether or not you know go through the two step analysis as we just did with that prior case and here then you have to look at you know just assuming there's a constitutional violation and you have to look at whether or not the law was clearly establish well your honor if we're going to get to that stepped in terms of whether the law was clearly established this is alleged in the answering brief of the administrator and in the further excerpts of the record eight days certain that they had no notice from any prior to some th circuit case or u s supreme court case that makes it that these officials would have known that they had this ministerial duty in the by not abiding by the ministerial steps they were violating the beneficiaries federal constitutional rights your honor what case should they have been reading while they were bound by the by state law in nevada and the ministry of tribunals i'm in two thousand where in federal court we line on the federal constitution your honor and we're playing federal long i cannot cite to the court a case on all fours as the court is aware that is not  about what what case would a reasonably intelligent administrator look and say oh if you're on a just these rates every year under the statute i'm violating their constitutional rights your honor i cannot give the court anything further on that but i do want to draw the court's attention to the issue that the district court never addressed which is the fact that it is alleged here the administrator falsely advised the claim that their benefits were being paid at present value this was in the d thirteen form which is a next to the complaint and it says in effect you are receiving one payment in lieu of your future installment payments which is at the present value of those future installment payments the allegation here is that the administrator knew that advisement at least as of two thousand team was in fact false and for was false how does that help your case i mean it doesn't make it doesn't make it any more likely that there's a property interest if the statute doesn't say there is one well that certainly is a procedural due process violation which is the other leg of the claim here which is that the claimants were disserved by this they would have been better off taking the installment payments they would have received more economic value from doing so but the administrator was intentionally knowingly falsely advising them that they were getting the same value the same they had knowledge that that statement was no longer correct they didn't have discretion to falsely advise the claimants that the payment was at present value when in fact it was not at present value and the district court never reached this  advise benefit recipients of their rights and to give them false information the claimants were in fact injured here because if they had not been lied to about the present value of their benefits they could have elected to receive the installment payments and received a procedural due process rights of benefit claimants and this is discussed in the in the in the brief and these this is the pages thirteen to fifteen well excuse me i'm sorry  that is pages ten through twelve your honor and those false statements are not subject to qualified immunity they don't have to scratch and to falsely advise the claimant let me ask you this do they have discretion to decide what to put on this form they would that was soley within their power to issue that was it was in their discretion to craft that form the way and it was in that was within their discretion to craft the form but not to include a statement that they knew was false reporting what what they're getting new york your get your argument is well they didn't adjust the right they didn't adjust it yearly so therefore i'm see the statement was false well your honor it's different what i'm saying is that in two thousand and fifteen procedural due process right to see when there's a property interest because when you think about procedural rights there it's noted as an opportunity to be heard by a neutral decision maker with and with an unbiased decision  basic elements of procedural due process well so where does this fit where does your claim that it's a false statement fit into that basics an aria well your honor perhaps i am i miss chatter characterizing where the right lies in the spectrum between the substantive a procedural due process rights and the property interest rights i do point the court's attention to the discussion of page eleven of the ok all right well i think you know i'll take another look at i mean i found i found your argument difficult to follow because when i looked at this just as judge aleman suggested it looked like this is really a state law claim i don't know why you would try to make it into a constitutional quote state laws might not be enforced and the claims of citizens to the enjoyment of rights privileges and immunities guaranteed by the th amendment might be denied by the state agencies and quote that is the purpose of section  good morning your honour's heidi stern on behalf of the individual defendants qualified immunity protects all but the plainly incompetent and those who violate the law in order to overcome qualified immunity the constitutional right claimed by the plaintiffs must be clearly established because the defendants don't fall into any of those categories the district court correctly dismissed this case and found that they were entitled to qualified immunity in looking at whether the right here was clearly established and this court need look no further than the plain language of the statute as the district court did it contains the contours of the law governing this this matter particularly in s and ninety five section five and in four hundred and ninety those two statutes set out the discretionary functions that the division had here and that these individual defendants had and it's the civically defines in those statutes present value as a court being according to the regulation passed by the division itself at the division administrators were had complete discretionary function to real live a much longer than they used to be that also means that the muslim has to be higher if they see that year after year is it your position that they can just brush it off and not make any changes per cent of the statutory language yes i think it's a different question whether they should do that but whether they can do that certainly the statute permits that yes and i think that's evident if you look at what about this portion of the statue which says that they have to unreasonable disco like again there pursuant to the statute at the time they can do that whether they should is a different question or are we supposed to interpret the statutes in a way that makes sense and obviously it doesn't make sense to allow these d i r ministers to deny people benefits which they may have accrued over many many years you know we just posted treat the statute as well it doesn't say  pursue any rights they feel they're not entitled to and that is the administrative process which they cite extensively in their reply so there is a process but coming to this court requires that they state a constitutional right that was actually violated and that just is lacking and it's partly because of the language of the statute because it just doesn't establish the property right the plaintiffs are claiming part of the reason that it doesn't establish a particular property right as they're claiming is what judge ban mentioned earlier which is that the concept of present value is is a malleable concept and there no overarching universal acceptance of what would constitute a reasonable present value so plaintiffs don't have an interest in a particular amount of money and the secular interest is in a protected property interest i believe so yes yeah they did get that benefit though this is unlike this court's prior cases in this arena where benefits were actually withheld that didn't happen here they all got a benefit and i'll add not only did they receive the benefit that that constituted potentially their property interest but they had they knew everything here was publicly available they knew what the discount rate was they received notice from their insurers of what the calculation would be they also pursuant to statute received a calculation of what the monthly benefit would be so they were aware that the amount that they were receiving as a lump sum mean this is going to be less once they are notified of their benefit amount then lump sum benefit amount and they said this is this is incorrect what's the administrative process for them to follow they would just deny or say that they didn't want to accept the lump sum benefit no no whether they were that we i want to lump sum benefit but this is the wrong amount then they could how do they contest that they could complain to the through the hearings process and the court can see this in the record from the one from the reply where they go i can't remember exactly but it's like the hearings officer and then it's an appeals officer and then they can do a petition for judicial review in the  system would not recognise that the fact that we might not comply exactly with our own regulations is not a federal constitutional right and again there's there's depriving me of the correct amount and that you're therefore violating my substantive due process rights what's wrong with that there is no correct amount it's not a true or false so he looks at the statue and puts all the statutes together and says you had and you have an absolute obligation to adjust the discount rate that's not in the statute there is no requirement to adjust there's none now there is now there is and i think looking at those two statutes together shows really the difference between what it means to have a discretionary ability to set the discount rate at whatever the industry and that the division decides and the difference between having a non discretionary obligation to change depending on certain factors that's how the statute present value as following the regulation in the administrative code so it basically for ninety five basically says  your lump sum is going to be determined based upon the administrative code which right is that subsection five o two and that is determined completely by the by the division here think i think that is a probably a correct statement i don't know how much i would how far i would go with that because you know they do have to show an actual table that lays things out and i don't think they picked those out of the air but but yes it honor i'm sorry i don't i don't know the answer i suppose they could allege a class action and state court that they don't need to be in federal court to do that so if there are no further questions i'll just leave this court with a request respectfully to affirm the district court to follow the plain language of the statute here thank you ok rebuttal your honor in respect to what was discussed the idea that the administrator could simply brush off year to year any effort to actually review this actuarial table and then ignore their out of their knowledge that it was not paying present value benefits goes to the other issue that i raised in the brief which is that the limits of discretion are not unlimited if someone is subject to a discretionary function but exercises in complete disregard for the injury they're causing their discretion they it ministre care for instance in a correctional facility this court has examine those sort of situations and it has in fact found liability in those circumstances and this is would not receive the present value that they were required to get and were entitled to get under statute i would just also like to respond to certain representations made by risk counsel for the pelleas which is  that the claimants were never advised as to what the discount rate was i mean the the the regulation was public record of course but they had no way of knowing whether the discount rate was in fact obsolete or not and the fact that there may be a state law remedy here  does not avoid the right to bring a section nine hundred and eighty three claim this is discussed at page twenty of the reply brief and in fact this was one of the holdings in monro which is still good law and i quote it is no answer that the state has a law which which isn't forced would give relief the federal remedy is supplementary to the state remedy and the latter need not st be sought and refused before the federal one is invoked so  mean i get the damages but it might get you to my get you a you on i can i cannot represent there is absolutely no avenue in the state court system because in the stratton case clearly the claimant there did persuade the administrative law judge and if you read the decision it was actually over the objections of the administrator to entertain this claim but the way the procedure is set up by the administrator does not actually allow a claimant to review or dispute the actuarial table they're not given any advisement that you can  i would ask the court to reverse the district court's decision and if the court is is not willing to set aside the district court's finding as to the qualified immunity issue whether on the state created doctrine concept or otherwise i would submit that it must reverse the district court's decision in respect to the intentional ok false advisements given by the administrator ok thank you repression your arguments in this case matter submitted