am jason germann appearing on behalf of appellant mr hellman i'd like to begin by noting that while i am here today doing this or argument i should recognize the contributions of my colleague sean apple significant contributions to the strategy to the briefing and deserves much of the credit for any success we may have in this appeal turning to the merits i'll keep my arguments brief as there is not much in dispute right now on the main issues diff defendants concede that summary judgment was improperly granted below as to mr howe men's fourth and eighth amendment claims of sexual assault defendants also agree that the district court below improperly excluded certain declarations mr home and presented as evidence of defendant turnus is having committed sexually so the sole remaining issue your honor is the scope of remain and because in their opposition defend defendants raised to argument that plaintiff mr hellman has waived his right to pursue certain legal issues what if what if we simply that's exactly what we're asking for your honor we're asking that mr harmon not be prevented from raising those legal theories below the defendants argue mr hellman has suggesting something different that we  vacated we mandated they can argue to the district judge that you've waived arguments you could argue to the district judge that you haven't if you don't prevail at trial on remand we'll we'll figure out whether the district wrong why should we address those issues in the first instance is my question my understanding your honor of defendant's argument is that waiver is applied because mr holman failed to raise those legal theories on this appeal an appeal i mean we can address them on appeal because you didn't raise them in your opening brief but i don't see why that has anything to do with what happened in tester court so they've they've conceded on the summary judgment was improper leg granted so it was and i don't see why we have anything left to do i completely agree with you your honor the the waiver argument to the extent defendants argue vacate the summary judgment we have it is to district court improperly limited some evidence you agree correct we remain and you go have a trial we don't instruct the judge what's admissible at the trial or not submit not admissible at the trial if the judge for good or it is judged and that's errors in ruling on admissibility arguments and you win we'll be back up here why why why do we have to doubt decide what evidence is admissible or what arguments are admissible at trial because that district court did you believe air granting summary judgment right but only with respect to the third search there were three searches in the first two searches  informed on everything and everything is free is fair game below you can go argue to the judge that he should grant summary judgment once again on searches one in two because they haven't presented any good arguments as to why he may buy that argument orders arguing that he waived his right to argue that either of the first two searches amounted to an independent constitutional violation well you can raise that to the district court i guess i don't see that that's an issue before us i mean th issue before us is on appeal whether that just recorded on summary judgment and that's the only issue that we can address we can't say what what will happen at the trial before the district court that issue would if for us because there has been a vacated we think when it goes back they should be precluded from arguing some things and i say you may be right but that's an argument you should raise to the district judge we only review judgments and once we vacate the judgment you may have a wonderful legal argument that the other side has waived to try to argue about the first two searchers but that's our argument i think you've got to make to the district judge we're not going to tell him how to run the proceedings once the judgment is vacated that's least my view trial against causes of action based on searches where that is was already ruled upon summary judgment and a judgment that you've agreed should be vacated or not part of the judgment only the part of the judgment with respect to the third well if we vacated all are you ok additional evidence or additional argument and so if he made that earlier ruling and we also have an amendment to the complaint we have amendments to the summary judgment  motions why should any remaining from this court constrain district judge in deciding what issues its willing to entertain what issues or what evidence supports those encompassed all three searches the court held there is no genuine dispute as to whether the alleged searches violated plaintiff's fourth or eighth amendment rights and summary judgment must therefore be granted as to these claims so the summary judgment ruling clearly disposed of all of hi all means fourth and eighth amendment claims based on all three searches and you have an appeal filed a brief that says we agree with the with the argument i think that they've never presented any evidence with respect to scouts one and two searches one in two that justifies their claim make that to the district judge may reenter the order he may say no as judge  point was that holman only attacked the part of the judgment regarding the third search and that's all we conceded to in our answer in brief not any arguments regarding independent constitutional violations with respect to the first two searches so if heilman wanted to attack part of those part the part of the judgment regarding the first two searches he had the opportunity to do so but he didn't so we didn't have the opportunity to defend that part of the judgment before this court and our briefing so it would be unfair to remain and with respect to these claims that we didn't that we didn't defend thank you your honors i just want to briefly point out defendant's counsel referred to parts of the judgment but the as to the fourth and eighth amendment claims there was one judgment the judgment was that the fourth and eighth amendment that mr hellman had not presented evidence sufficient to survive summary judgment on the fourth and eighth amendment claims that there was one judgment the judge didn't enter separate judgments or separate rulings as each of the first three searches there was just one judgment just one ruling as the panel has noted all parties agree that that judgment should be vacated and proceedings remained thank you i thank both sides for the argument to him particular