and begin with argument  thank you may it please the court eric don't pozo for the defendants appellants controlling precedent of this court and that is the recent decision and hassle against fisher requires reversal of the district court's determination of due process liability or at a minimum revisiting that determination for all but one week of the fourteen month period of liability at issue the district court found to due process violation for the period spanning october two thousand and seven through december  thousand and eight we can see the liability for the last week of that period from the nov twenty seventh two thousand and eight maximum expiration date of ms res the sentence through the december fifth two thousand and eight percent and sing to p r s just one is the damages portion of the trial of the proceedings still open and after will be going back to the district court for that it is judge hall and that may factor into this court's decision about what to do for the remaining period the period of supervision within ms races are pronounced eight year determinate sentence we know from hassel that from israel yes to show a violation for that period and to recover damages she would need to show that the conditions of p r s to achieve a subject were more onerous than those that conditional release what of that would have been imposed under conditional release our position is that she could never make such a showing the conditions the two forms of supervision ar e procedurally identical the court could make that determination on the novo review we would also be open to visiting that issue and further proceedings because damages will have to be litigated a subject to conditional release rather than p r s for a great bulk of the time in your reply brief in response to housefull you appear to concede we argued in our opening brief essentially what this court held and hassle that mysterious should have been subject to conditional release for that period that was the last seventh of her determinant term by operation of new york law  a term of post really supervision interrupts the running of the determinant term so whereas she was subject to p r s nominally by the division of pearl at that time in actuality her sentence was never anything other than within that term whether for a determinate sentence or an indeterminate sentence i understood that and i may have that this flipped but one one of them allows for a significant personalization this happened to mr ms raise here in which she was  ordered not to associate with certain individuals whereas the other elements is as a set of standard conditions much less personalize the bill and obviously the difference can subject someone conditions apart from the general and standard conditions in nine and why c r eight thousand and three point two there were some i believe there at three forty seven of the record where mr imus was barred from contacting her victim she had to abide by a curfew those special conditions are accounted for in the regulation and they can be imposed for either conditional release or you did you present any evidence to the district court demonstrating what conditions she would have they can be viewed in terms of liability or damages this court and hassle viewed in terms of liability but they can as well be viewed in terms of damages and this case this case is in a different procedural posture than hassell right it is this is it could you address those those differences here because this is an appeal from denial of qualified immunity wears hassel had gotten to the end of the that's right house it was an appeal from a final judgment so that the fact that this is an appeal from an affirmative appeal denial of qualified immunity means a couple of things one only legal questions are before this court and two there are further proceedings to be had after i said that there was no material issue of fact that was subject to police perspective the issue that is before the court now is a very narrow one the district court below was deciding only issues of liability whether the imposition and enforcement administrative post release supervision was a due process violation and then whether defendants here had qualified immunity for that violation in the proceedings below there was no discovery on the issue of damages per the request of defendants so that we could address this liability issue given the uncertainty in the various cases in the circuit and on the motions for summary judgment those motions themselves were were similarly limited to the liability issue we acknowledge hassel has set forth a theory of under the second circuit law for post relief supervision but it doesn't change the fact that plaintiff was subject to administrative post release supervision from the time of her release on october fifth two thousand and seven below i think the issue right now is should plaintiff be permitted discovery on damages for that earlier period and we suggest that the answer is yes that defendants haven't shown that plaintiffs were not subjected to a constitutional violation during that earlier time it will be on the burden of plaintiff to prove her damages and we knowledge that but that's that's not the issue now  and defendants haven't shown that they are entitled to summary judgment dismissing that that time period we submit that the order of the court here should be affirmed that the district court was only focused on that be there potential damages related to the differences between conditional release and post release supervision i do your honor i think in our initial pleadings down below and in the initial discovery which is as far as this case time period is different and that can have an effect on someone released from custody rather than having a head a legal sentence been imposed on plaintiff she would have been subjected to conditional release through november twenty seventh two thousand and eight instead she was released on october fifth two thousand and seven and subjected to a five year term of supervision the the change in the time period  may have had an effect on plaintiff in terms of her ability to function in the community in terms of employment prospects in terms of reporting obligations so we do think that we should have the opportunity to make that case also and this is again speculation that this hasn't been briefed is this is a fairly extraordinary case not necessarily for plaintiffs specifically but this is an instance where defendants have subjected thousands of inmates to unconstitutional post really supervision and i think that may also factor and to the question of damages as well  thank thank you all be exceedingly brave our position is that no shelling could be made under the circumstances that the conditions imposed on mr ras however any more onerous in practice than those of conditional release we understand though given the procedural posture of this case and the fact that there will be further proceedings and remained that this court may not want to wade into that issue and we'd be content with an affirm and solely on the legal theory set forth and hassel i'm i'm not i'm not sure i understand your position now you say that the issue of damages remains open and the only issue that was reverse we what we're saying is the district court was wrong in rejecting qualified immunity on the subject of liability well   you're not contesting that goes back with respect to that we but with respect to the large period of time i thought in response to other questions you said well the phrasing that hassel used and the way that this court approached the issue and hassle for the period of conditional release was to view it in terms of due process liability that the plaintiff had made a showing that her conditions it's not conditional release and i thought plaintiff has to make a showing it's plaintiff's burden that the conditions that were imposed were more onerous substantially and meaningfully then the conditions of conditional release are need to be some discovery around that in some presentation perhaps in fact finding their very well that very well could be appropriate so if there are simplistic view facts and spew on an issue qualified immunity and substance where without jurisdiction to hear that that particular issue that would be right on that view nothing further thank you very much thank you both will reserve decision to a decision due course