officials could not invade the privacy of the residents of the united states simply really establish law by the fourth the minute the texas medical board apparently has got the message all march t twenty seventh two thousand and fifteen mrs chapman mrs mary chapman an investigator for the texas medical board arrived we have seven seven nine or mistreat the here so up to you to straighten me out the doctor lost his medical license is that right that's correct now that was there before this happened or after this or this happened ok so and three twenty seven fifteen which is the day you're talking about he had already lost his medical license yes yes the judge came in fact so therefore he one can be one i mean in theory anyway damages only against this one person you're not seeking relief against the board at this time we're seeking declaratory judgment that the board has a pattern of bolli constitutional rights of their licensees they have this just took them now under that correct yes correct ok and they are not responsive documents to be in ministry and it's beena is your position not only were they just taken but they're not responsive that's correct been valid and mrs spock objected to producing the documents then want one or the other parties has a right to go get a compliance a pretty compliance hearing before a neutral magistrate or judge and then decide whether the administrators subpoena can be enforced mrs chapman cannot enforce mrs chapman didn't have a right to take those documents without a pretty compliance hearing if there's an objection to taking the documents that's why i will settle the law well settled law let me ask you something are you familiar with the procedures that this group uses do they have a regular compliance hearing mechanism under the rules here and only in fact the whale supposed to i mean i guess we'll have to save this question for the state but i mean this isn't their first rodeo i mean they must have come in and ask for an administrator a must have used this procedure tell their ministry or if you don't give us the records we're going to have you arrested go through all the records and then fill out a subpoena for the records if they wanted and judge rosenthal road totally opposite these constitutional violation undertake to determine whether that was a constitutional violation which there are obvious constitutional violations and did not undertake to determine whether this constitutional violation was reasonably known to an investigator find a doctor or do penalize a doctor in some way or the people who are refusing to give the documents there is no damages yet that is not the united this is the united states of america haiti government officials do not get to go into an office and rummage through records if they're that whatever they won't do whatever they won't hope people hostage until they give the records up and it's that's a quote from a certainly a lawyer who is more qualified than i ever thought about being judge rosenthal and that's it that's the edge of that is totally clearly established and what sick but we're not going to make any we're just sitting at back to the last say back to the court thank you if you if you prevail ok do you have anything else or i just want to you're asking for relief against the board is that right that the signing of qualified immunity is gently reverse in a case sent back to the district court for proceedings consistent with what you're not asking us to make any findings of determinations about patterns or practices today nope no honor i'm asking just that the judge and the judge allison only finding here and was she was entitled to qualified immunity because he admitted  planned right now they admit in their breaks the texas medical board at mit's in their brain that she took the documents against the protestations in this fog and they admit what documents state took and they never claimed that they had a with them or pressing arguments for them in his opening brief further we would also point out that there was a failure to actually adequately cite to the record as to any facts or any arguments in support of his claims against texas medical board therefore we think would be office in march of in march visit now the issue in this case is whether the administrative search exception to the fourth amendment applies that  issue that was not clearly established as a matter of law before judge ellison now it's our position that the ministry of searches that the texas medical board conducts are instead constitutional but this court need not reach that issue in this case the simple fact is is that there is nothing in the record that indicates that the administrative subpoena that mary chapman delivered as part of an inspection of dr attributes office somehow fell outside the scope of the administrative search exception to the when they do this other is we've had a case where they've done this in the past year about where it was a pharmaceutical records of patients there and check correct that is correct your honor and there are actually two other cases that are currently pending before this court where  the administrative search process and the inspection process in the texas medical board are actually more fulsomely briefed and in my opinion would be better vehicles for this court to look at if it actually went to right on the question of whether there is some deficiency in the texas medical boards medical board take the position that it can seize documents pursuant to administrative subpoena on site without the opportunity for a hearing before and neutral ma or district court no we're not taking that position in this case right now it's our position rather that what happened here was that instead of subpoena was delivered as counsel for the truck he pointed out the office was locked  told that she could take those documents by anyone in authority who had permission who had authority to say that she could take those documents and those are all she just confiscated i wouldn't characterize it as a confiscation so it might help so i believe that point is in contest but because we're stuck with the pleadings as they exist in the district court the answer that question right now is no for purposes of this appeal just and so what i would say is that the stall has already living in a case against miss chapman for the very same events giving rise to the very same arguments before a different judge judge gilmore in the district court this case was actually filed a year after that and other words with a judicial warrant there is all wrapped up in that the authority to conduct the search but with an administrative subpoena that allows it you can put someone on notice that these are some documents or records or whatever it is that you want to inspect review examine you seem to be saying that authorizes the seizure of the documents that demonstrate subpoena without any need for  inspections of medical facilities which we assert are closer regulated businesses in texas the point of qualified immunity in this case is that there is no case finding that the medical industry in the state of texas is something other than a close analyze the issue but they use soome that everybody knows they're not well actually on i think this court's decision and that the texas state board of dental exams are set to a four fed third six twenty nine two thousand case out of this court upheld qualified immunity for a person who did very much what mary chapman did which was to deliver and state a subpoena to a dental office along with state law enforcement authorities who were going in to collect records and it's our position that this court if it were to find that the medical industry we don't think you need to reach the industry whether it's a question whether it's less regulated but the that the texas state board case sets out that enforcement producing that service that's not the fact that they were the ones driving the search while they were also in there with the dental board examiners office and our position is that that case clearly sets out that there's a difference of opinion about whether medical offices like dental offices which also deal with opioids in prescription prescribing like the case here and arguably even if they are closely regulated there's not a can just can snatch things that are not even pursuant he not even arguably can't snatch things that are not pursuant to the administrative subpoena well that's an allegation in this that we have to take is where is it it's not in the record in this case we can point to the record three the factual record was not developed in this case because judge ellison granted qualified immunity on the legal question so there didn't need to be any further fulsome factual development because of the legal question that was presented to the court why understand it may be frustrating for this panel that's also a reason why this case isn't really ripe for analysis on the burger question on the close regulated business question or on any of these issues because none of it's really been briefed before this court maybe we need to back so we can get developed but well your honor i mean the issue with qualified immunity is this is a purely legal question in front of this court the district court did not find that question based on the pleadings that were presented to it that's none of the ronnie is ruling the record that was presented to judge nelson was extremely limited that was by choice of doctor tropi doctor topia had not only know qualified immunity is appropriate well i've thought of it but the difference in those cases is does all involve a regime still allows for arrest for failure to comply there's no allegation that something isn't that part of there's no allegation and then the lies played in below that she was threatened with any kind of rust that's not in the record ok i guess back to this closely regulated industry and the test you talk about the test th scheme here we're talking about alliances that had already been revoked right at the time yes so how is it further some regulatory scheme to go in there and get his records you've already regulated him and taken his life this isn't the reason behind the subpoenas not the record but i will share with this court the reason that they went out if you look at page eighty five of the record on appeal that's the first page of the hundred page ala j opinion it gives a synopsis of what dr tropi was accused of doing that led to the revocation of his license a lot of it involved non therapeutic prescribing of opioids so it's my understanding from the texas medical board that the reason behind the subpoena was that there was some concern that he was continuing to practice despite revocation so the point of the subpoena was to go out and get patient records to see his doctor tropi it was still in fact prescribing opioids despite the fact that he had had his license revoked now again that's not the record obviously that doesn't help us in this case but that's my understanding from the medical board as to why they went out and so i don't think that there's a look at the medical would do but let's assume it was what did they did they'd already taken it li well your honor when you're going to places that might be considered pill mills there's a threat that there are people there who might be dangerous and so because miss chapman despite the fact that she is technically a licensed peace officer under texas state law she is not allowed to carry a firearm she has no arrest authority and so having the dea agent there who has the ability to protect her by having a gun or having backup to be called or having a rest authority  barry that's once back to us again i thought has already been here before hasn't it i think sought us here on a different posture the step back doctor saga has several cases going in several courts throughout the state of texas ok and then what's the other i believe so yes and so those both would be in front of this court and it's our position that those would be better vehicles to address this issue these issues because as i understand it they have a more fulsome record about the regulatory structure that can be uses for administrative inspections at medical facilities is it your position is that as long as the texas medical board does not seek penalties against individuals then it can go into people's offices and see medical records now it's our position that the entire structure of the regulatory scheme that the t v hasn't placed is provides an adequate substitute for a warrant when they are conducting inspections of medical facilities and so it's not a question of whether they're going in and seizing records rather whether they're conducting an administrative inspection like regulatory authorities do and any other context and in these other context if it's like security or something people have a chance to litigate that beforehand they go into court and while your honor i mean and then she also copied it so that i don't know which of the subjects but well we don't believe it would be a search in the context of the ministry of inspection and so it's not a question of trying to fit the square peg of what the issue of whether the fourth man applies it's an issue of whether the medical industry in texas has a a lesson to expectation of privacy that would make the administrative specs is that the team they are conducting a reasonable  exercise a state authority and we believe it does because there are cases on point that say this is not a closely regulated business or that our ministry of inspection scheme is somehow unconstitutional putting  this chapman unfair notice that she is obliged not to do what she did we believe the qualified immunity applies here and we believe that this court should affirm the district court's ruling dismissing the claims against don't believe that the the brief does not adequately continue the claims against the board itself or the deck action and will have to make that determination but assuming argue window that  action mode in any way while we were not carrying out against dr patrick but against other people do you think you can answer questions after the event that appreciate your sensitivity to it  this is the administrative inspection process that the team day hasn't place and we believe is constitutional so there could see this is what they're doing we believe our administration special process is constitutional on an ongoing manner yes yes you are ok thank you thank you have your argument the