are ready when you are clinics additionally there is no statute which limits the asters discretion time place or scope there's no statute which advises the people that these searches are conducted pursuant to law as a result  demands for inspection cannot be enforced by agents and sealed so in that sense they all those issues lined up directly where the panel said that only an oral argument as we're having today did the medical board come up with the issue of closely regulated industry and so it did not address that seems to me first that rope is not president unpublished that it is certainly a persuasive opinion to be considering because there was no decision holding there was closely regulated going on just a second we're not speaking in here i'm not a very loud speaker it's not coming out on his speaker in judge alys not hearing me is that something we can adjust up much less any special scheme which satisfies the requisites a burger there is no scheme which provides the people with notice of these searches are being conducted the rule of law in this case fairly similar to beck dealing with board of dental examiners know you are and as the board it is the panel noted in the tropi of the court in back was specifically dealing with the texas statute which authorizes conduct that is the texas controlled substances that in this case just as in control subpoenas request and finding him back concerning dental office and then dentists contain controlled substances on their premises to practice to profession whereas here there is no evidence that there was such pills or at all controlled substances not the same as prescriptions for controlled substances and finally the returned not returned if we believe that your left yet so to continue with that in basic we said the regulation and monitoring of the use of controlled substances were typically in the dentistry industry is a substantial state interest i don't need because ever saying maybe it does it is a closely regulated industry but it does go through this burger analysis for purposes of qualified immunity so it's not just the presence of controlled substances added dental office it's the regulation of the rich christian and distribution of them it does seem to me that is a vital state interest whether played out correctly here or not but says we that's a key issue and where the burger would apply maybe not closely regulated medical industry  closer regulated just spin sing of medications so you think that we're absence of the drugs being in the office is somehow relevant in the prescription of who's getting on who can go next door or maybe not even next door in the same building and pick these up with a piece of paper isn't that an equal interest whether the drugs are present in there and doctor's office i don't know if it's of equal interest to daughter however it is distinguishable because in this case important than your own is that the tripartite berger test the substantial state interest is prone to be the third problem is the requirement of a conference of regulatory scheme which puts the people on notice that they can be subject to searches at any time and it is particularly in this industry to inspect the doctor's office is that correct got a subpoena i believe is the name of an independent subpoena to subsequently go and review the documents that they had already reviewed i think that and use a couple of days your honor but there's no clear indication they used to be on the on that however they did in fact publish those names online when they filed a document with the district or with the unredacted names of those patients respect to the professional investigation there is no indication the records whether or not that is a common policy however we have seen other cases in which that has been the case and that does seem to me i mean a federal investigative search i know you say are two thousand decision in back is this thing which of but does that necessarily mean that the reasonable officer couldn't look at how through the legal analysis to say that the court badly erred know you are they have legal counsel to do you have for them and legal counsel has to go through the physical brain and say we badly erred and so it doesn't create a good faith qualified responses that first the record reflects at us if you look at fifteen thirty the the da obviously went with the the medical board investigators as a common practice it was not pretextual because there was a complaint so if you look at the record ads fifteen twenty one fifteen twenty four you'll see that a complaint was filed with the medical board but yes it was for the purpose of trying to substantiate their criminal investigation of this doctor and that you were complicit in that by responding to their telephone call that initiated the enforcement officers and were following an informant step that the ship was carrying contraband the search there was constitutional furthermore we observed that administrative searches conducted pursuant to valid statutory schemes do the medical board came or lease was assisted by an e mail from d h saying we're far enough along in our investigation we now want hope we can go in with you on this sort of inspection is that correct yes  with that in there was the complaint that i do it is very much generated by the da or any of these cases you're talking about regardless of the general language have that clear a prompting from the criminal investigators  it's as clear as we have in this case your honor i didn't do a thorough record search on the lamont as marquez or united states versus thomas but again the cases said that there was a specific suspicion of criminal wrongdoing that was brought to the regulatory agency by a criminal lawyer but you that of his looking to see if this is it adds an extra ingredient to it and did the medical board then that medical  by the complaint being filed but again law enforcement shares information with regulatory agencies all the time and so this is a common practice across and i guess you read some forth by the supreme court now you know own again i mean i'm having trouble kind of slicing and dicing ass because it defies common sense if nothing else is the district court indicated privacy or to me is incorrect so your honor we we would agree with you and indeed in our brief that there of course are privacy concerns always when when the medical field is involved but then the question is in any fourth  in texas for instance that the statute that we cited there goes back to one nine hundred twenty five where the the board has been able to ask for records from doctors and so this is a this is a long history of that taking place and still getting to your question about privacy though it matters again who is getting information which is precisely why the federal guidelines the federal law in hipaa specifically exams the board from its otherwise very stringent privacy requirements in all of my skies and to the argument that they make as well and that is that the regulatory scheme here is not properly restricted and limited because it allows subpoenas any time anywhere for any purpose it doesn't restrict the kind of subpoenas it that you're allowed to share a sec wrecked incorrect does incorrect  the prescriptions that people have been given for the for the drugs of the trial substances that they've been given that information is available to the board so the board will go to the what they'll see if there's a factual predicate to continue with the happen in less than fourteen days if the urgency of the situation or the possibility that records may be was damaged or destroyed that there can be in other words no no the da has an ongoing investigation they have a suspicion of criminal wrongdoing that does not automatically mean they did conclude in those cases that it was not protection right exactly we're on th is a different order found there is no basis for that and in the record because there was an actual investigation taking place by the board let me ask you what your interest was in this search as you say in   each of these prescriptions is already catalogue with the patient's name and the amount prescribed and in a footnote you say even though this information is already available to medical regulating authorities in your or important for determining both whether doctors operating a pain management pain management clinic and whether the controlled substances are being described cordoned off are you saying that it's trying to see if the what's being reported is being accurately reported you couldn't tayo by the number of prescriptions and the frequency of the same patients getting it and whatever else whether subpoena management clinic just tell me what this inspection is warrantless inspect gonna gave you that you didn't know from we ask you about the use of this closely regulated industry the control p a case says it wasn't raised until oral argument i look back at the timing of these two different cases and it seems to me that the search in this case was two thousand and thirteen search and control pia was in two thousand and fifteen i think it was it sees me latching on to closely regulated industry is a late development perhaps with the board believing that it's authority otherwise being argued here was sufficient but now having doubt sees me that fits in the standard for whether an officer we get in a qualified immunity whether what reasonable officers would have known what was clearly established is that an objective or subjective test do we look at what these officers new and indeed what they may have not known and it doesn't matter because it's an objective test would come test is on whether an officer whether it's clearly position that this was a closely regulated industry and you needed out authority you're on the board of his has taken the position for for some time in the book a tropi as my only evidence to the contrary ash just an odd situation that and we'll have to look at that independently because we don't have the president but it does to me that berger may be your best bet here is in any case it seems to be a bit much to be asking this court for the first time to hold that this is a closely regulated industry the medical practice per se well your honor i mean two things one is that is that this court has and again following its normal fact political industry the medical profession is is more closely controlled that than any of these as we set forth in you know review and i thought that that is tied to the no expectation of privacy  really ask you if you make your answer very brief them because brief does that add anything in this case that we ought to be considering none of you or seemingly embracing a lot of what's in the