you look like the last guy district of florida made the twenty six the thirty six twenty one b recommendation explicitly invoking the reason for the repeal that there had been an offense involving a federal judge of that district this court has the authority to address the legal challenges this is not a situation where we are challenging individual exercise of discretion so let me ask you this  that we agree with your argument is the remedy to return the case to be to reconsider without taking into account this letter i would ask the court to first consider other equitable options the court has power under the recusal statute there's case law saying that you have equitable power to fix but if you were right though i mean what it might not have been any different without that letter we don't know and i we don't know what i'm afraid of as we can never know because the pool has been so polluted by the how do we get a fair something that looks fair at this point and with the amount of time clicking away he's already twenty four  know what have where where do we get the authority to decide what what happens to believe you have under three different statutes twenty two forty three which is the gives you power under twenty to forty one to do what law and justice requires in a hades case under the recusal statute the supreme court has said it's up to the courts to try to figure out a just result and under twenty one of six the court has the general appellate power to do  a situation this is a classic equitable situation i'm going to ask both both counsel to address this question is this is this a a matter that might be assisted by mediation because it doesn't seem i guess just speaking for myself who would feel very odd deciding what should happen without having the appropriate body do that but is that something that might be useful in this case i think that it would need to be i do think that the court has the power today to say look at this is gone far enough it's an obvious violation it wasn't caught you brought it up early it all through the process of litigation it was ignored you now have a good clear shot at president is doing with some of the situations where he's releasing early is he doesn't four months from the from the graduate the clemency for prerelease custody what i was suggesting as  if the court determines that yes there was a violation no there's really not time to fix it without creating more irreparable harm i'm ordering that he at that time credit and by not protons so that the projected release date is four months from the date of your order to allow him to go and you have his custody you have any case law that says we have authority or you know give that kind of direction to the  think that you have a case on that because you know i'm you know i never heard of anything other than in the rare case where you can challenge of the opi or say well you know go back and do it over again i do this fairly often in the art and the residential drug abuse program we have a generation of litigation and we often ask for equitable relief in the form of giving relief while we have  the case continuing matter of fact well you know what else is prison record is or anything else to to even make that decision i mean it seems to me to judge dismiss this case for lack of jurisdiction right so  let's assume she was she was wrong and there is jurisdiction our options are it seems to me to go back to the judge and say you have jurisdiction go consider the merits of this or there's it as a matter of law and they should have considered the letter from the alabama judge to grant the writ on the condition that they go back to the b o p go back and reconsider his application now there may be other things for all i know he's beating up the guards or you know not going out of his cell at lunch or whatever you know we don't know i mean how do we know that how can we know that you know the record is not reflect anything any such bad we don't know what we don't know good bad or otherwise we're not in fact the fact that this is everybody is released and the question is whether the the legal air that has resulted in a twenty four month consecutive sentence that has not been properly done whether as a remedy he is put into a situation where he has prerelease custody were said i think the reason i'm suggesting the four month gap is exactly that reason is to make sure the people on supervised release the probation office will have time to say ok here's a person is coming out of the v o p will say ok this is a person who has a program a because halfway house or this home detention for the last four months if he's supposed to get up to a year but you know for months i think is a reasonable way of what would be wrong with the order saying that the district judge's order is reversed she's directed to the issue of riff that instructs the bureau of prisons to reconsider his application without that errant letter and to do so within thirty days if the problems are i think that the first of all obviously the thirty days is consecutive but more than that what we are concerned about we have a whole bunch of other at the issues that we've why would we reach any other issue if the thing was tainted in violation of either statute or the due process carlos marnus in fact the end of the matter for  because he still ends up with a he should have as an equitable relief well i know i'm talking about the issues that you raised here why would we decide any of the other issues should've considered the letter for all the reasons you have said now go back and consider is application without the letter in do it fast what's wrong with it what's wrong with that is the appearance how do they take out of their brains that the  entire southern district of florida court thinks it's an insult to a federal judge not to grant it the appearance alone both as a do well this now that makes me out back up then have to you know back way  trial twenty tightly can think the use of the term the court is ambiguous sometimes it refers to the individual judge from time to refer will say to the southern district of florida the court right there you know there it used both ways this one  it's ok to get get a a recommendation from that court and of course the person who speaks for that court is is the chief judge now furthermore so don't you think given that it's not it's not a clear case to say well you know we should grab this case and tell the bilby what to do i think it is and the reason is that the recusal letter the letter from the recused chief judge was copied to the sentencing judge the statute to a three hundred twenty one b refers to the court that imposed sentence so it's unlike other cases it's talking about the reason that the that results in a consecutive sentence to punish the person who allegedly well you know a federal judge and that was the reason for the refusal order in the first place i think i'm just telling you that one view of the circumstances here and i don't think you you know cases all of you think it understood and all i do for sure is that you're out of time thank you mediation if the court disagrees on our reading of four fifty five d which is the definition of a proceeding then yes we would except for fairly well there's there's also i think a due process issue here and also the b o p s internal policies appear to tell their b o p to look at the recommendation of a sentencing judge not the court but the sentencing judge because there's a statement in there when the original sentencing judge is no longer available and the assigned judge are first no opinion then there are some procedures to follow so there's certainly a strong argument it seems to me that there's a failure to follow the law here and i'm just speaking for myself what if we were to disagree with you on the merits were to you think the appropriate bottom line would be i would accept mediation at the remedy if the case doesn't end up in mediation and i agree with what you're sillerman suggested which would be it would go back possibly through the didn't take months and months and months and months i think a short deadline would be acceptable in this case i do a lot of immigration cases and i think this is just like in the ventura type cases where the agency is the one that has the discretion but an error may have been made that the remedy is it goes back to the agency to exercise its discretion and you have but if i can take a run at arguing that for fifty five the proceeding issue i want to bring the court's attention to  the page in our supplemental excerpts of record which is the florida clarification of judgment which i would offer to the court by way of contrast it's at page one of our supplemental excerpts and that is a proceeding so in two thousand eight mr rodriguez takes a run at convincing the visiting judge in the southern district of florida that he should be credited for a time when the state court has vacated the sentence that is has all the hallmark being a judicial proceeding so the parties are participating it hits the public docket the judge is issuing an order and at the end of the order the judge even gives the parties time to object to the amendment of its order by contrast this let back from the sentencing court to the b o p isn't any of that it's just a letter asking for a non binding recommendation from the sentencing court and that's what you see and there isn't any case law exactly on point  opposing counsel say its member for israel which is an interesting case because it has a component to it that is also a non binding recommendation that's been court case about the right to counsel but it also has an important section in it and the court actually says more importantly than the non binding recommendation two things happen in that state court proceeding in that case in addition to the non binding recommendation of the sentencing judge that's the opportunity for the petitioner to invoke appellate rights and that's the opportunity for the petitioner to withdraw his guilty plea and i would submit immense it's those constitutional rights that cause the supreme court to say this is an important proceeding at which there is a right to counsel here the letter between v o p and the sentencing court doesn't have those additional isn't all that beside the point if b o p should not have considered it because it's not the sentencing judge i mean it's a completely separate question but in other words the recusal statute may not have been violated but if some other statute or thirty six twenty one before which talks about the sentencing court but then b o p s interpreted that as have most cases that i could find to mean the sentencing judge specifically that individual so  if that was violated all of this doesn't matter does it i don't believe that the agency is violation of its own program statement would rise to the legal error that would give this court curious well if that's  interpretation of the statute and if that's what the statute means it's a violation of a separate statute so i guess all i'm trying to find out is if you think these two issues are interrelated or whether they're separate challenges to bill interpretation it's a program statement it's in the supplemental excerpts of records and it is the program statement that this court has previously held valid in taylor and reynolds which the government's position in this case also but i haven't found a single case that says that it's the court as an entity rather than the sentencing haven't found a single case did i miss one do you know if i look to your honor you couldn't find one either i'm going with mostly a common sense argument here if you look at the judgment and commitment it comes from the southern district of florida all the correspondence in this case is directed to judge probes sitting as the southern district of california  that's really the best argument that i have on that but i think our better argument is that it's the mere violation of a program statement as opposed to the statute if there were a violation of his that's that's what i mean that's all timidly the question is what the statute means but i guess i couldn't find anything that said that in that particular section courtemanche the institution it seemed to be without having a good case on either side i couldn't find any case in saying that that meant something other than the something judge individual and i think that's right and then i think this ends up being kind of like almost a plain error analysis where if there isn't clear law from this court saying that the b o p doing it this way is  it can't be that's harder that's harder to say when your own internal procedures say send them to the sentencing judge and if the sentencing judge isn't available here's a bunch of procedures which were not followed in this case well the b o p did send a letter to the sentencing judge just minor point and maybe doesn't make a difference but didn't answer the answer comes back from the chief judge speaking for the entire court and that's an inference because the c c is to the visiting judge as well to make sure i understand your answer to judge grievers question about the media lose are you with regular touch with the bureau of prisons i mean could you yes let us know within a day or two whether there's a little settlement possible here after that is if you deal with them locally or do you have to call washington or how we making progress mr city i think from obviously we've been if we could have resolved this case before we did we would have tried to do that and based on what i was then this is now this is down to my bet is that if there is a clear indication from the court that there is that the procedure below was not in conformance that i would certainly be enthusiastically participating in trying to get it resolved quickly if we can't get it resolved quickly people be asking for what i asked matters through mediation i believe that if the b o p s thinks that there's an advantage to not having the case resolved within decision on the on this well i think both of you have heard what various members of the panel think erma weaker parts of your case and each of you has some of those which seems like a classic situation to work i something out i'm happy to confer with the b a p i'm happy to have the matter deferred for submission in which time i will confer with my colleague but i also would like to make sure that the court understands that we do believe that it was that the additional week is additional