he sold good morning your honors and may it please the court kathleen sullivan for pangani group rule four sets forth the means for the government to notify a criminal defendant of the proceedings against him but it does not authorize notice by any means rather rule four sets forth a non exhaustive but a lot of list of the permissible means by which a criminal summons may be served and this court if the rules committee reject area argument then in the plain language of the rules as by any other means that gifts notice it did not your honor the rules committee did not reject that interpretation the rules committee to the contrary put in the language after the sentence you just read if the if the rules committee had intended the district court's interpretation that any means that gets no gives notice suffices it would have stopped the sentence in four c three d ruminant two after the words by any other means it did not it did not put a full stop there what it did is it went on to give a lustrous of means by which notice could be given and your honor it let me skip right to the text will point to the  is that it doesn't stop at any other means the rule as direct as the proposed rule is as accepted gives illustrative means and let's look at what the illustrative means are under roman at one its delivery on an authorized agent and under roman at two other means it's three different means stipulation pursuant to a foreign governments request or pursuant to an international treaty all of which are formal legal processes in ascertain the intent of the drafters except that we have reams of material telling us what the intent of the drafters were and nothing suggests that they intended to limit it in the way that that canon of statutory construction would would suggest and since our job is to use these canons to discern the intent of the draft or why why would we apply that here with respect your honor the intent of the drafters as the court should be able to take into account the appearance of counsel when evaluating a corporation's claim that it's absolutely your honor and the most important point i want to make to you is that actual notice does not suffice to provide proper service their proper service requires not just that there be factual notice proper service under the amended rule requires that the notice have been given by proper means notice is the constitutional minimum your honor but the rules committee went on to require additional procedural requirements above and beyond pure factual notice on it's a giant clue is the sentence in roman that two does not stop after by any other means if the government were right and the district court were right that all that is required by is notice by any means by all means skywriting past the corporate headquarters in china publication in a local newspaper in california if i had if they have actual notice they can still contest other aspects i mean there's two different issues here one is is notice alone enough and the rules committee seems to say he is the second honor the most important place in the drafting history i would like to refer you to are two places first the government argued at e r fifty seven that the new rule would not destroy the historical and time honored practice of special appearances and the rules committee at ers levon and s e r seven twenty one adopted the government's argument that said we're not destroying special appearances to contest service they will survive our new rule and they said for example you could come in and contest the constitutionality of a new rule for you could come in and contest the retroactive application of new rule for in a special appearance or you could come in as we did here at e r ninety eight and ninety nine as adopted by the magistrate at s c r forty nine to fifty two we came in to do the third of those we came in and we said pan america not the right defendant you know then why did quinn concede that the special appearance was actual notice because your honor it was actual notice but actual notice is not enough that's the most important point i'm trying to make the rules committee said notice plus we live under the rule of law actual notice is not enough we have to live by the rule court said it would have stopped ruminant to after by any other means but let me explain why you must interpret the if you're going to interpret this in light of the framers intent you must interpret it our way it would destroy special appearances to you can't contest that you had your honor but we can contest that service was proper even if we had notice and let me say why special appearances will disappear let me let's just go to our case suppose an attorney comes to make a special appearance under the list of the committee says it preserved suppose the attorney can since i'm specially appearing i'm not authorized to accept assignments i'm specially appearing to say you you serve the wrong defendant the government says very nice never mind here's a summons on you the attorney and now that we're slapping the summons on you the attorney your client has notice no attorney will ever come in and make a special appearance again at risk that he will be weaponized into evidence against his own client by the very fact of making the special appearance and that is why you cannot preserve the special appearances the committee said it was preserving by affirming or refusing to grant the writ here let me see can i went through that very quickly our main argument is the rule preserves the time honored practice of special appearances according to its drafters if showing up to make the special appearance if i show up and say hello i'm specially appearing to say that you serve the summons on the wrong defendant the government service summons on me why the i guess i don't understand they can still argue and you he can't your honor it would moot or cure the problem he's there to dispute if the government could just say one and your here summons on you or they could do it in this case in a subsequent summons and say you appeared last time to say  your honour's let me give you an alternative fallback i want to be clear we're asking for two alternative forms of mandamus here what we think is the first ground for mandamus is clear legal error with respect to the interpretation of rule for with respect to all defendants attorneys who specially appeared in earlier proceedings for the sole purpose of contesting service of process we think that your honor judg exhaustive list of means and there may be many other permissible means besides the ones that are listed but the one impermissible means is to allow the service of a summons on the defendant's attorney by virtue of his previously having appeared specially to contest service of process where do you think that because that's a problem i have how do we interpret it to say what you just said oh absolutely because these are just illustrative means that a simple matter your honor what it would have to rewrite this not at all your honor why did him he would simply have to hold as applied to the class of attorneys who have proceed i'm just reading from the court's order setting this case for mandamus argument you asked does rule for as amended permit service of a criminal summons on a defendant's attorney who specially appeared in earlier proceedings for the sole purpose of contesting service of process as applied to that class of attorneys you should hold role for in a political scl assoc statutory construction rules are governed by the same statutory construction principles as any statute your honor simply as applied or not rewriting it it's a lesson of not exhaustive obviously if something is impermissible you can exclude it by your ruling but your honors i want to be sure you know there's an alternative narrower out here and that is you can also grant the mandamus petition here narrowly on the clear abuse of discretion that the district court committed as applied to the facts of this case this case involves a bait and switch the attorneys especially appeared here in the earlier proceeding under the old rule for reprinted in the petition at page four the old rule for it was there was no thought that a special appearance could waive service of process or be used as evidence against the defendant and then the new rule comes along and government then reissued the summons later that month and then when made another appearance in april twenty seven thousand so actually made a special appearance after the rule had been made effective that's is that well so they c retroactive if it's applied to the the special appearance made after the effective date of the rule that's correct your honor but it's retroactive in effect because what the district court does is say well you had a special appearance beginning under old rule for it was never withdrawn if you look at ninety eight to ninety nine you'll see that we went before the magistrate we speak he said we're here we're specially appearing just to contest service of process we do not have authority to accept service or process that first special appearance was continuous the key thing that makes this retroactive is nobody ever told us including the rules committee and the government that this new interpretation of rule for  we did your honor but i said i'm confused about why that would be retroactive had he never appeared before but then there was a summons issued in december and when nixon appearance in april the rule would apply just as it is today i don't dispute that your honor but let's look at the transmetal memo by which the chief justice sent the new rule to congress it's reprinted in the excerpts of record at forty to forty two and the key languages that are forty one the chief justice transmitted the new rule to congress with the language that always accompanies rules amendments it shall apply prospect of lee and it shall apply to proceedings then pending only in so far as just and practicable it is not just and it was a clear abuse of discretion to find it just to do a bait and switch on the very attorneys who had relied on the old rule in making the earlier special appearance so just we think that all attorneys who made an earlier special appearance even after the new rule should be immune from service of a summons on them to satisfy the rules numerated means there enumerated they're not exhausted but they are lost to tive and the rules committee meant something by that list it didn't mean skywriting it didn't mean going on television it didn't mean publishing something in an obscure local newspaper in des moines it meant other forms of service that are like the ones in the list and this is not like the one in the list so your honor you have two ways to go the class of all attorneys with earlier proceedings or us ok thank you very much i'll give you a minute or two for bottle blitzer from the the high standard has not been met there is no clear the district court made no error in finding that amended wolf or was met its core objective is notice and the defendants concede that by the government's actions subsequent to the rule for the defendants have actual notice of the third superseding indictment in this case not only did they have notice about it but they actually specifically sent their attorneys who initially rejected the summons by letter of january two thousand and seventeen they said you know what we are not in a position to convey the summonses to our clients they did not show up on january thirtieth at the arraignment and then something changed their minds they decided that they were going to enter a special appearance after all and they filed a third motion to quash they didn't have to do this and they did this with the full knowledge of the consequences of what it meant under amended rule for because they participated in the will making process by a letter of two thousand and fifteen the quid emmanuel lawyers specifically went to the advisory committee and said don't pass these amendments because if you do our mere presence in court will conclusively establish service is effective under amended will four so don't do this the advisory committee said we think that's appropriate you can still have special appearances to contest things like the constitutionality of rule for the retroactivity of rule four but you cannot make a special appearance to challenge notice because that is the objective of changing these rules which are out with the federal rules of civil procedure and out of sync with the rules that apply to individual defendants so you saying that quinn could have argued constitutionality and retroactivity at this stage or only after a conviction in an appeal i think that they are not entitled to mandamus you're absolutely right because bam in fact or one for mandamus requires them to show that they have no other means of relief and they absolutely can make all these challenges on appeal after there is a final judgment but according to what the it's the this whole concept to me it's in distinction to the concept of qualified immunity in that you're entitled to know right up front so you don't needlessly go through all these procedures and you're saying that's not a factor here no it's not a factor a here's a summons and complaint everything's fixed i mean that that i've been around a long time and i've never seen that happen but it's well you it's highly unusual it's an odd situation it's a change that was decided that was appropriate by the rules committee that i don't really literally address it head on well they do in the sense that they say manual was concerned about this right and they brought it to the rules committee the committee and this is all laid out in appendix three to the government's brief said specifically that this is appropriate and why because there's no institutional interest in allowing a defendant to feign that they don't have notice if they're sending lawyers into court they have notice of the suit there's no doubt and they're not even contesting this they're trying to say that they should still have a shield from the initiating  proceedings and this is a very limited question they can still defend on the merits all kinds of in all kinds of ways but it's got to be within the context of the prosecution having initiated they can't put up a shield and say these this prosecution that is based on charges that have been looked at a lawyer do anything not just not appear correct they could not appear and in fact the option don't appear they could have their certain consequences they but the rules committee specifically said that yes it's been the case for a long long time that there has been this loophole for foreign defendants this loophole is not consistent with the global economy you are have situations where defendants foreign companies in civil suits have to come in because courts can order that by skywriting or by publication or by whatever if the circumstances warranted that they have notice by that way that that is a provision under wolf or  civil rules of procedure the civil rules of procedure abolished special appearances in one thousand nine hundred sixty six the criminal procedural rules didn't catch up until two thousand and sixteen the end of two thousand and sixteen but they did catch up eventually and this is what we have now which is amended rule four and so it is broad and the rules the text of the rule is broad it's open ended it simply says that any other means that provides notice and the rules committee the advisory committee specifically said we're not going to have the courts difficultly authorized a particular means of providing notice because you know what this is how the executive branch decides what to do even if it means that in a particular situation they might violate foreign law or international agreement why would why would the government even resort to those of those are preferred methods because they're presumed to provide notice the other means the other means puts the government risk because you have to actually prove that they do provide notice in this case how if a lawyer comes into court and make a special appearance that's right that's right and that's what their attention of the wolf war was because you have companies for example like the defendants  which have now been found by two separate grand juries in three indictments over four years in cases that are pending six years who have been able to refuse one of them what is that what is the is there anything to the client relationship or any way i'm here no i mean i suppose you can say that one argument has been taken away so quite emanuel can't go in and charge for making a motion to quash on the basis of notice but that's like if you know the supreme court rolls back the fourth amendment and it takes away one argument that when a manual could bring in for a motion to suppress that doesn't impair the relationship it changes what the representation can consist of but that's not the government coming in and interfering with the relationship between the client and the attorney in this case you have the clients who by the declarations of quinn emanuel actually consulted with two other law firms after receiving the summons a notice of it and after that they specifically made a strategic decision to discharge quinn emanuel into court to make a third motion to quash and this idea that by the way that of the one hundred twenty seventeen and twenty seventeen after the amendments have have passed and by the way the whole notion that because they made their first special appearance in two thousand and twelve they were somehow bait and switch for required to come in in two thousand and seventeen is just false there is no reason they had to come in and in fact they didn't come in an initially they sent a letter to the government saying we are not sending the summons on to our clients their clients did not show up to the arraignment and then they made a strategic shift in decisions and they decided to come in and make a motion to quash so it is not it was not a foregone conclusion by that that by serving in emanuel's attorneys that somehow service was definitely going to be or automatic the affected under amended will for that is just false however the government had the right under  honor you can have potential parallel proceedings and civil contempt order then how would you serve that or well we tried to do serve it again the same way that you did there are and they don't show again correct and then what happens if you do a contempt squared order there may be limits to what can be done judicially but there are and this is contemplated by the rules committee extrajudicial also consequences that can be attendant to a company a foreign corporation that wants to do business in the united states wants to act with the united states but then just ignores judicial orders and the requirements of the government and there would be a basis thereby to enforce those actions again those are things that you know are you concerned sort of the executive branch and their decision but for the very narrow question that is presented to this court today the fact is that while for authorize contested under amended rule for after a special appearance ok you have the wrong defendant what else can be contested so the things that were specifically contemplated by the advisory committee more that by a special appearance you could continue to make a constitutional attack on rule for you could object to the retroactive application of the amendment or you could claim that the institutional defendant has been dissolved so those are the things that the advisory committee said yes notice you can no longer do you can't you can't come in and complain about lack of notice you can't complain about lack of notice and that was the purpose or not to complain that you get that you've served the government served papers on on the lawyers no you can't can't can't can you challenge before trial the constitutionality notice by special appearance i'm sorry your honor what do you mean by that will can they challenge before the mean we haven't had a constitutional argument and that is that the notice is by lease due process can that still be done before trial yes i believe so which is that you know they can come and but this is this is important to note which is that the defendants have not made a constitutional claim they've made a statutory interpretation claim about wolf four and they've made an argument that it is unjust and impractical to apply it those things i think are i think very clear under the rules text and legislative history or are you saying the challenging it on the basis of retroactivity is going to moot because there was a second special appearance and then it's not being defendants over the past six years so you're also saying there is absolutely no significance whatsoever that quinn actually acknowledged and conceded notice that  conceded notice but they actually had one of the deputy heads of their legal department in china a draft notice draft acclamations responding to government filings they participate in this prosecution actually a number of years ago in two thousand and eleven two of the defendants put up one point five million dollars in bonds for material witnesses who ultimately absconded so these are these are defendants who i think are justly brought into this case the prosecution is absolutely initiated now and they can litigate within the context of that but the equities lie squarely in favor of the government and because of that and because really four out of the five and factors are not met we asked this court to deny the petition for writ of manda lawyers show up in court and say we don't represent them anymore sure what happens well then there might be an evidentiary find or a bench or a sort of process of the government says no actually we have letters we see that we saw them walking together arm in arm that maybe we would be able to convince the district court that actually they do represent them but if it were in fact the case that they don't represent them i think that you know the government would have to find a different way to serve because it wouldn't be a means that provided notice which is what is required under rule for you know they'd have to say we didn't represent him at the time is your command afterwards remake i mean by appears not the time they said we don't represent right and they and again the special appearances they've made three they've come in each time they're trying to say that it was a continuous special appearance there's no authority for that the local rules don't provide for special appearances in perpetuity and in fact in virginia case in the dot com case the quinn emanuel firm came and each time they made a special appearance they made a specific motion to appear in that motion and the district court either granted or denied the ability for them to make special appearance so we asked this court to deny the writ thank you it's all going to get your minute plus just two points here on earth judge paez you're absolutely right there will never be a special appearance again to  contest the three permissible reasons because the minute the lawyer shows up at the podium and says hi you have the wrong defendant governmental come across the room slap a summons on the lawyer and say that's cured it's moot we have now serve you that gives notice that is not the rule of law and that is not a permissible interpretation of rule four you're absolutely right it puts pressure on the attorney client relationship we did the responsible thing we showed up we didn't abandon our client we showed up and we said special appearance only why did you make constitutional argument why didn't you in this case your honor we think there's a strong you should interpret the rule to avoid the sixth amendment questions putting the lawyer to a hobson's choice between not showing up and risking sanctions for his client you heard my friend from the government say but how many times we've don't need to get to the constitutional question because the text is clear the text in numerate says things it wouldn't have needed to enumerate if notice was enough if i leave you with one point is notice is necessary but not sufficient under the rule of law the rule of law requires appropriate means service of a summons on an attorney who is specially appeared earlier simply to contest service is not the rule of law you should grant the mandamus either broadly or narrowly if we've requested thank you your hon