procedural due process case not a stuffed in them due process case and the district court as your honour's know held that dr maynard had proven a violation of the procedural due process rights because the state did not afford him an adequate name clearing hearing with respect to the allegations of fraud leveled against him now i would like to put this case in some context at the beginning because it's going to bear on some of the issues that we have to deal with here in one thousand nine hundred nine the california legislature enact the statutes to crack down on health care fraud we never deny that health care fraud is not an important issue but like other kinds of important issues that doesn't mean you throw due process out the window the thousand and four the ninth circuit decided that what is required for publication is that the agency make available a document that is available under the public records act or otherwise available to the public and it was just a very small window when it was possible that it could have been made available and that no one may respectfully disagree somewhat with your understanding of fashion on the appeals findings were issued october two thousand october two thousand i can give you the cite for that in the record  did not change its policy regarding publication until we brought the cox case to the attention of the district court in two thousand and four so as the district court found and the district court specifically said this and this records very lengthy decision that opening and those appeals findings were available for four years it is not necessary in the case law is clear on this it is not necessary for publication purposes that the state actually release the records to the public under cost versus rough scaling it is only necessary that did the available for publication th actually how well it let's talk about this if it's made available to the public and the cost versus risk which i think was decided after bush i may be wrong on that but that issue was raised and raised right and it was also raised in some other cases and the courts of made it quite clear that it's only enough that it be made available to the public it doesn't ask to actually have been released that may go to damages your honor it may be that if dr maynard at trial is unable to prove that it was released to various different people that may affect how much his reputation was tarnished but it doesn't go to the publication issue which is clear the subject of public records we also presented to the district court in the district court was aware of those declarations that were not contradicted indicating that in fact these kinds of appeal findings were made available to the public and we even showed where our office actually obtained those kind of those kind of finding so i if i may i don't think publication is an issue in this case  appeals findings public so they do not have to be released they only have to be subject to a public information which these were subject to public information and the state even admitted that during this period when i wanted to do though public employment and the courts and want to get into every public employee who was fired would have some past rights actions so they've created some very unusual rules with regard but that being said nevertheless what i think it was judge roland was that it is enough that a record be put into the employee's file and that under washington wall that file the subject to a public records request so that john q public if he wanted to could say i'd like to see the employment file for this person was not released it didn't have to be released  using that very important case judge morrow who i must say was about as thorough in her sixty five page opinion as possible to be made it quite clear that that was binding on her squarely under the circumstances here where again the appeal findings were issued at the time they were issued the state department of health services had a policy of making those appeal findings subject to the public through a public records act request we presented testimony declaration showing we had actually obtained those records through public records  question was whether there had been this mean clearing procedure afforded to the individual which it was not so the fact that it was never disclosed and then it was in effect removed from the public your honor i think that can be something that's relevant to the issue of damages i do not believe i was relevant to the issue most respectfully of publication and the cost versus galley now what i want to do wit am quite willing to go more and more on that i honestly did not anticipate that being such a major issue that i'm prepared to go further on or i can move on with some guy think that if it's not in here i know that i know the judge moral made that fine because i know she was troubled by that and you give me one very quick second i will find  here we go i believe that that is discussed yes the page thirty seven of the court's just a court order one one four six with the excerpts quote the lack of any evidence that dr maynard's appeal findings were released to a third party is not relevant given cox's definition of what constitutes public disclosure now i think i would agree with judge maher on that issue i know agree with her on every issue very agree with her on that issue and i think there are some cases i can't they are not my thing or tips that i wanted to move just so your hono the context of this case a little because this was not the first case in which these defendants were sued for violation of civil rights with medical sanctions they had been sued earlier in the  was suspended april two thousand these people were sued in another case the putative class action case in june of two thousand in july of two thousand they come to the federal court and bought this says to the federal court i'm taking proactive steps i can give you the citation right in the record whether i'm taking proactive steps to stop fraud plaintiffs are trying to stop me we're trying to work out the kinks in the system we need more time to the federal court i know one responsible for implementing the methods and standards under forty four to save our section four five five point one three which includes a requirement that you  say they have no responsibility for this process judge michael didn't allow us to get to the jury on that issue on the other issue which is critical to what i call direct actors burton was the one who di investigation she was one who recommended the suspension she was the one who misstated that there was an investigation going on which caused the suspension to last instead of being over in october two thousand it went on for another almost two years we are not contrary to what judge morrow held were not in a substantive due process case we don't have to show reckless disregard we don't have to your argument and holding from the district court as i understood it is that there really was an absence of evidence of him being personally involved in the deprivation of liberty interest now being defined a what's been breached is the publication of the they'll ability to publish it we have to if we accept that but i thought that the downfall according to the district court was that you didn't have the connection between that constitutional injury and these defendants well the constitutional injury here in my opinion that's why it's very important constitutional injury is continuing to suspend him publish it without a name clearing he they needed policies and procedures in place remember we told them back in two thousand the very same people you need policies and procedures to give people name clearing hearings and as a matter of fact the liberty interest was specifically  process that has a system that can allow a doctor to be kicked out of the medicare program for two years without ever getting and then clearly hearing because no one figured out he was under investigation so there causal connection is not they're not the ones who did th makes those policies in this case all of a sudden he said i'm not the guy i think you get that before a jury i believe they can either say he should have been the guy or he returned others from fixing the system because they thought he was the guy him during the period two thousand to two thousand and four the document is in the public record in california at that time where there are exemptions that would have precluded public a person from the public made a request under the public records that that the documents with the released ok so basically the documents were available to the public for those four years that's correct and according to  if that's the situation even if nobody asks for it they said that placement of the stigmatizing information in the face of the statute mandating release on request constituted publication so why i policy changed and there and there will be no disclosure there's going to be no future disclosure there's no evidence of past disclosure it is tantamount to the expungement situation that cox refers to furthermore in suggested that if the employee there had been allowed to put they had put rebuttal information then had been allowed to respond to the charges that the court might have ruled differently well in this case the very appeal finding that is claimed to be the basis for the liberty interest violation is an appeal finding that resulted from dr maynard appealing the temporary sanctions and so also i think the situation here is extremely different than i terminations of an employee where there is a determination a final determination that the employee has done something to warrant the terminations here or the provider was placed on temporary sanctions he wasn't formally accused charged with fraud or misrepresentation he wasn't even better at and he filed a writ of mandate and ultimately he he prevailed on the writ of mandate because the court found that there was no evidence of an investigation fo of the administrative appeals finding now that i would take issue with that but that's i mean that's in the record but there was a actually the there's a referral from d h as that went to the m provider and there's no evidence that any of that well what i what i wanted to say with respect to that is that this is different than a terminations because the disclosure is not a basis for finding the kind of disclosure required for a liberty interest violation and then you may or may not be but you were saying that this wasn't like a determination of your job as to very serious no financial damages suffered by dr maynard and there was never any attempt to do any discovery on our experts and there was no no evidence presented of financial damage whatsoever and that would be a an opportunity there to provide his own comments regarding the terminations also i think we need to keep in mind that you know it's and this ties in with you know basically related whether there's a property interest the medicare medicaid program i think it is it is related generally to due process but probably more to the property for the doctor make clear that the acts of this are procedural due process not substantive and it's not a question of what is a property interest in it but whether here the procedure is the state didn't even do the investigation it was supposed to do although it responsible that's a very good question that goes to the to the appeal here and the liberty interest remember as i think the court pointed out when counsel was arguing it's very it's very limited the the liberty i mean i don't think that it's you know really part of this appeal to determine who does but i can say that there is evidence you know in the in the rant heard at that we had declaration provided by people from d h s two who basically said that they were responsible for certain aspects of the program on the district court went into a great life to go over the no evidence whatsoever that the director first of all there's evidence you know lots of evidence about the delegations that are lawful under state law that the director made regarding vari you know maybe at most negligently made a statement you know to be in the position statement that there was an investigation going on she had every reason to believe that there was an investigation going on and as she found out that there wasn't when she was trying to find out who was assigned she made another referral for an investigation and the department took that referral and then made a referral individual capacity and there's no evidence of any of the type of liability involvement that would constitute liability under section one nine hundred eighty three thank you thank you well let's see what's remaining going on then and i'm sure you can have that you can have to you know we should everyone we thought we could i guess when the director of the private health service tells united states federal court that she's being proactive about fraud unfortunate we take her at her word when she says that my case is complying with the federal law that requires them to give due process we take them at their word we didn't know when we got into court and we actually when the people who recommended the suspension that everyone is going to say that's not my job that's the one else's job so everyone's delegated to everyone and that's the way the state works and i understand that but that doesn't make any sense told the hearing officer x party that he was under criminal investigation so when you read the hearing officers appeal findings that counsel suggest or just a knock us they say he's being suspended and we're continuing it because he's under investigation for project have to do with the public well publication is not necessarily the constitutional deprivation constitutional in my opinion most respectful constitutional deprivation is to continue the suspension beyond the period when it should have been stopped the district court has found expressly that if she had told the correct if she had said no they're not under investigation then hearing officer with the suspension i would have been any hearing officers decision to publish and to go as is responsible because the evidence tends to show she's not she didn't make the referral for the investigation the evidence going both ways that they were here on summary judgment reese so those are the two people who are actually on the field causing this to happen kate's and banta are responsible banter with the head of the department even though she could delegate tasks i don't think she could delegate ultimate responsibility for the polic and cades is responsible because he went to federal court and said i am responsible for the policies and if he now says he's not a jury could say well we don't think you're telling the truth or if you are telling the truth now you may have deterred other