when either there is adequate alternative remedies or when there are special factors counsel in hesitation in this case persons but there are a number of grounds that we presented in our preferred why that is the case and i and several of those were not presented before the district court isn't that right your honor we did not specifically articulate the privacy act and the a p a as among the special factors counseling hesitation i'd be happy to explain why we think the court can reach those issues nonetheless if the court has questions about that so much because you did cite the that i think everyone agrees and certainly we understood the opposing counsel to set to recognize that this court has discretion to reach arguments that might otherwise be deemed worth it and here there's a couple of unique facts about this case that we think the court sh discretion if it wanted to reach the privacy act in the end of course we think we prevent it really presented a number of the do grounds so that the court doesn't need to reach those but first of all here you have the unique circumstance where the district or didn't actually reject our argument that a not want to decide the issue because they thought that the due process claim was very very weak and thought it was unnecessary let's talk about that i am interested really in putting aside their bevan's that special factors and alternative schemes analysis just looking at the question absolutely and here i think it's important to distinguish between two sets of defendants patrol and the and and harris person very sisterly with petroleum harris here keeping in mind that the question is individual liability so it has to be the individual defendant themselves that committed a constitutional violation we believe that none of the leading show that either patrol the or harris bridge the liberty interests of lifts and that's because reading this court case law in the supreme court's case law if you are damage to reputation  infringe a liberty interest no matter how grave the consequences for individuals future employment prospects and that's because these contracts were finished by the time the report came out that was heard both petroleum and harris our department of labor officials there's no indication that they took any action or that he lives even bid on another contract with the partner of labor or the department of labor invested inspector general's office and so if any tangible action was taken against live it would have been taken against live by somebody else and the limited cause all flow from somebodies action it's really is that what you're relying on is which person can be held responsible are you relying on the fact that there wasn't an  accompanying had various action gets complicated because there's two strands of this court case law there's the reputation plus and the stigma plus we're talking about reputation for us which is not not a theory that i think the district adopted then you would actually look at whether or not it happened at the same time but you also under stigma plus having to look at some well i guess here it's defective department and so you're saying that that's not that's for the theory that's enough w different but that's not their theory as to patrol in here if their theory is that what they said about live was so bad that he just couldn't get any more work and the problem is that that is exactly what the plaintiff in seeger was saying he was saying this is what you said about me it was a really action and so the defendant in seagirt was the individual who had given the negative recommendation and i don't think there was any allegation that that individual had following the issuance of the recommendation then done something in a binding way to not hire that other individual individual look for other jobs with all their employers and just was unable to get that right i take your analogy to see i was just probing the source of what i took to be your first answer to my question about why there's no constitutional claim against her some patrol and i thought it had to do with these individuals being responsible for part of what happened and i am sure i saw a precedent for that particular way of spending so perhaps maybe i'm not answering your own first question quite the right way what i think is doing some work here is the supreme court's clarification when you look at the events actions it has to be the individual defendant the individual even the defendant who has committed a constitutional violation and so let's take a step back and look at the constitutional violation that is being alleged here it is that in is that the defendant a british a liberty interest with out providing the individual due process so that means that if you were to say that an individual defendant committed that violation you have to show that that d liberty interest without providing due process and if and here i think their claim is there was a very injurious report that these defendants were responsible for releasing without giving mr l don't we're not disputing at this stage the allegations that this cause reputational damage but that did not complete the constitutional violation the constitutional violation if any occurred was only complete once in addition to that reputational damage he also suffered all adverse action and that hannibal adverse action occurred without the provision of adequate process so for example if some other official head acted on the report but had given with do a hearing and efficient notice  except for all before taking that action then there might not have been any constitutional violation at all and you're saying there is no allegations that he sought and was denied further labor department contracts and therefore whatever i think would actually even have to be more than that  ever worked with i can't recommend him for certification there's no doubt that he understood what the consequence of that would be a need there was an allegations here that this was maliciously done that it was intentional and the supreme court said nonetheless that's an injury that been foreclosed and we know you and i don't think that's the facts of the individual was given temporary work pending the question of whether or not he would get the certification and then they sought the recommendation and the recommendation came in great condition was highly negative and at that point he couldn't get certified the allegation in super which remember that was decided a motion to suspend stage the allegation in cedar was he was unable to obtain other appropriate employment in the field as a result of that negative recommendation are you rely do not show that any action that barry took against mr lift were done without sufficient notice i understand the alleged constitutional violation here is issuing these reports without providing an opportunity for mr lift to rebut the points in that something like that i think that's fair without without at some point the process having had an opportunity to give his side of the is there such a thing as a negligent violation of due process that would overcome qualified immunity how can it be overcome qualified immunity if it's negligent or i think certainly when you're talking going negligent supervision the clear answer is that is insufficient is a very allegation here that mr petroleum knew that the investigators didn't provide him an opportunity to state his side of the story  i have to go back and look at that tape there are some kind of catchall allegations that may not be specific enough but regardless i think the argument that we're presenting to the court is that there's no liberty interest that was infr and whether or not you think that there was one if you assume there was a liberty interest sure but each of the three people didn't know you know they assume that the normal inspector general process processes were followed the ones that posing counsel points out are supposed to fall if the people who in the end released the reports in order to establish a via a violation that overcomes qualified immunity don't they have to know there's been a violation of the person's constitutional right assuming there is a constitutional right it will be hard given the supreme court's had mission that it is an individual's own actions and only that individual's own actions that can create a constitutional violation not just that it's a court says you have to you have to you either have to be incompetent or i there is evidence or an allegation that person knew that in this case the violation which is the failure to provide an opportunity to be heard happen you can't have overcome qualified immunity is that qualified immunity is one of the grounds on which this court can rule but i would i do want to move at least a little bit of time talking about events because there are a number of grounds that we have presented as to why i don't think the court needs to reach any of the issues at all  contours of what exactly you can get on to these contractor remedies and precisely what claims you can give all the court used to recognize this so help us understand that process if lyfe is wanting to apply for more contracts and he's bidding and he's concerned that somebody in the federal government might be checking on his past contract some might find out something that they would things you can do and i see my time is up but to answer your honor's question the court of federal claims has itself recognize that if you're alleging that the reason you were denied a contract was because of a defacto debarment that violated you award i believe there's also language about a proposed word but that's only if the contract does something in a two step if the if the contract agency proposes and then finalizes which is not necessarily always the case but i'm not sure that there are any allegations here that he has been done anything that wouldn't come from a solicitation my understanding is typically the way the government contracting work is there's a solicitation when you bid on it perhaps there may be some really small value contract s that don't fall into that category i'm not entirely sure about that but i think what all of your honor of questions are getting at is maybe there's some dispute you can have as to whether this was entirely a sufficient process if you wanted to raise a constitutional  it sounds like when i read my court's cases on the privacy act and you know not from things that are in the briefing that maybe the privacy act is a is a very useful remedy here and would fall in that category  supplement or tap into those that's the kind of thing that sometimes takes place under the privacy act but you know we need to know how far afield these schemes are and we don't have much larger owners asking does he have a viable privacy act claim i think the answer is we don't know to that i think the fact that we're even talking about the possibility of a potential privacy act name shows that it's in that neighborhood the other thing that it's definitely in the neighborhood is the contractor claims and then the contractors view if there's one thing that's clear from all the contractor romany's is that congress relief and not damages congress was saying hey if we need this contract to the wrong person tell us about it quickly while they're trying to correct it and give it to the right person we don't want to have to pay twice where we have the whole contract performed by a and then we learn that jurisdiction and instead it said it was tied up in the qualified immunity analysis and frankly i just don't understand given that how this court would have any discretion to refuse that i actually have a maybe put this question in a stronger way a constitutional decision was reached by the district court cases that's right and the court perhaps could have avoided the constitutional question by deciding the defense question first it could have and i thought that was an obligation on every court first try constitutional avoidance in a case where it is not clear at least what the constitutional issue is and obviously in this case it's not clear even if it in the end and stop where the plaintiffs want it i think there are strong arguments that a cour report that is incorrect and the words of the privacy act provide a cause of action when there is and when an agency fails to maintain any record concerning end the individual with such accuracy relevance sue for both for the disclosure but also for the inaccuracy use of the report and in o p m if there actually was a de facto demar meant in that circumstance you could bring an action under the various statutes allow you to appealed to barman's while you're under the suiting that huth determination with not a judgment that was based actually on a certain report which is up to the privacy these are all issues that need to be fleshed out your honor to determine on discovery if that is in fact accurate this libby were protected because they were in the office of the vice president the president right and we said even if they can't be reached at all as long as there is a statute that appears to cover at least some of this the fact that congress didn't different in a meaningful way from previous defense cases cited by this court namely the supreme court then the context is new and the court then said we've done it three times a week a claim against f b i agents for handcuffing a man  his house without a warrant a claim against a congressman for firing his female secretary and a claim against prison officials for failure to treat and inmates asked anything that's not in those three is new context you know to quibble with that i or i don't have but i have there and it's also by the way contained in conroy that twenty seven thousand opinion but this court where it talks about how you have to look at if it's different in a meaningful to to give some deference to those of us in inferior courts it knows how to say that and often that is the rule in other kind of mad kind of kinds of situations but here are you know whether  like it or not the supreme court's decision clearly indicated a new way to be thinking about business and the first question is whether the supreme court as ever found bivins under of i think a boss he said that they are in his favor that infection but not this allow oh no i agree with you that not the first question is contacts on the second question is special circumstances rance right i'm only asking the first question and  that's really an issue is whether or not the new constitutional right the video issue and i think it's a close question when you look at death davis the patent but even if this court were to say under about the aura there is a new context here  that's not the end of the analysis of if the then you go into basically the will to factor of whether or not if an adequate alternative remedy or whether or not this national fact and there are adequate alternative remedy if you look at what cases all involve comprehensive rights that provide but libby made clear that doesn't have to provide rights for all the defendants doesn't have to provide rights for all the kinds of claims of the person's making right fair enough you're not looked at here we're talking about it and the stance of billy in correct report why is the privacy act not a very well matched scheme for addressing not somebody says wow this inspector general report in the process of investigating this it johnson has included a lot of things that are incorrect about need so i want to go to those record holders and tell them you have an accurate information let me address it it seems like that's just the kind of relief that one would keep the absence of privacy act he's seeking under procedural due process but this scheme is more particular report his business  thing i dispute the administration of this contract i dispute the big protest here and to the point asked earlier where they said well can't you stand up and do a big protest if you look at one of the case i'll give you one he went over one minute and thirty seconds you can have one minute and thirty seconds as well judgment the defendants would be able to raise the privacy act and given that it's a pure question of law the most efficient thing to do would be for the court to just rule on it now but even if the court is concerned about backgrounds another fact that makes this case extraordinarily unique is that the district court never actually rejected our argument about ivins it just said that it wasn't going to rule on whether or not given it was available at all because it thought that the plane it had had it had it stayed a very very marginal due process claim i think those two facts together make this a sufficiently unique case as this court will know as it's discretionary whether or not to file a reconsideration motion we understood the district court's order is basically in inviting a reconsideration motion on the statute of limitations issue which the court thought had been sufficiently