nine when federal authorities mistakenly failed to place a detainer on him after is release over the next nine and a half years he led a exemplary law abiding life he married the mother of his children  he worked as a u p s truck driver he paid taxes all under his true name any bought a home into so essentially he was hiding in plain view but that being said maybe you can just jump to what how was mr macpherson harmed by the government's failure to incarcerate him for some ten years didn't he benefit by receiving credit for his time at liberty place good time credits well that that is certainly a benefit now after all that time out after that back being with his family is inconsistent with the fundamental principles of liberty and justice but if they haven't made the mistake he would have been away from all this time and what he's doing right now so and i think there's two factors in this case that make it particularly egregious and put it more in the line of the johnson case where this court has found the due process violation compared to the martinez agreeing cases one is the length of time that he was i'll the nine and a half you got credit for that didn't they and he did get credit and the second agreed just fact that i think puts it beyond the mere negligence or simple and they collect is that in july two thousand and seven when they realized the mistake and the court issued a warrant for his arrest process principle against further reading car car carcer rating someone after such a length of time and and when the conduct by the government is more than just simple neglect or a mistake well let's talk about it i mean the government let's i think we can probably all agree that they're incompetent on many levels all right and so and so if this were a private individual doing it maybe it would be gross incompetence but the government has all of this work to do and when they're processing all these people when someone fails to put a hold on someone and then when they have all these warrants to serve and they don't have enough people to do it why isn't that just simple negligence it's well the district court made a finding that it was more than simple neglect simple notice it shocks the conscience more i believe it does i believe it wouldn't shock our conscience if you got the nine and a half years of credit though doesn't doesn't that ameliorate to some degree your argument that it's manifestly unjust to return him to custody and require him to serve the balance of this well first i wan you know emphasize that i don't believe that the necessarily the shock the conscience test of the kind of you louis is applicable will that go if it is that goes back to the first question i think judge callahan asked and that is let you out for all of that stuff it would be in prison and he was right and the end it and that's what the case law talks about is how unjust it is when you have back into society not only for yourself line of shocking the conscience where i don't believe the and let me just talk for a minute on that shocking the concert is standard this court there's been some suggestion that the case law of the ninth circuit circuit unless there's supreme court intervening authority that is clearly irreconcilable with the ninth circuit cases well even if the waiver of jurisdiction theory continues to apply the second element is the got to be still that there be more than simple negligence more than simple neglect doesn't specify how much more that's a fact intensive case specific determination as i understand the case law and then you have the issue of is the harm such that it would justify the kind of relief granted and i'm not assuming that that continues to apply and the ninth circuit case law continues to apply why is that going to lead us to a different result than ever higher standard might well even if the district court found that the government's conduct involved more than simple negligence and i think that that finding and the circumstances and facts of this case are justify a finding under the waiver test of a due process violation the this a court described in terms of it's almost impossible to understand where page will make fares and is in a situation where he had was sentenced to three hundred twenty seven months by the northern district of texas on cocaine trafficking charges the u s attorney's office or the u s marshal's office knows where he is residing and working and takes from martinez in greenwich for further those cases mere negligence or simple in that negligence and more like johnson which is more affirmative misconduct so is it your position that there doesn't have to be a key specific finding on how much more than simple negligence is required it's enough if it is just more well it's clearly there's a line drawing based on the totality of the circumstances on whether or not in my two factors are the nine and a half years out and and the government knowing where he was for a year and a half and not caring and not bothering to go there as had how do you distinguish your decision in the united states versus martina's where he was out for seven years well so found we knew due process violation two things two years more here nine and a half rather than seven and a half and second there they referred it is only simple negligence the person was out on bond when their mistake was realized after seven and a half years they put him back in custody here after seven seven half years when they realized he was out of custody they didn't put him back into warrant for his arrest and nothing happened for another year and a half so you think the machine factor is the failure on the part of the marshals in two thousand and seven to actively seek his whereabouts to execute the war that marshals taking absolutely no steps to to arrest and the choice decisional years but it's beyond my teen as far as i can tell from martinez he was out the whole time because he was supposedly waiting for the bureau of prisons to give him a facility to surrender and he lived at the same residen for the entire time so apparently nobody was looking for him either so i'm still trying to figure out why this is different from well the difference is that the difference is and in the first seven half years they didn't realize it was a mistake the thought is didn't realize  was a mistake here so you know when they will they have to agree then that the first seven years would would be covered by martine the first seven years are more like martina's i would agree with that i know he's out of time  is there any implication that we should be concerned about or even just mindful of if we were defined as you want us to that dream course orating mr macpherson violated his substantive due process rights would he then have a bit of ins claim against the bureau of prisons for the five years that he has spent in prison since he's been reincorporated if we remove the heck bar by granting his  petition you know i try to avoid civil law whenever right whenever i can and that's and three don't have that alternatives sorry yeah that's an interesting question that it's a way of framing the culpability question because if deliberate indifference were to be the standard there is that the same does does it for hollow is the night from day that if we find a substantive due process violation here that he would that there would be liability for a bit and at least for the last year and a half distinguishing it from my teen is i don't know i've years that he's been back in because we would be saying is that that was wrongful reincorporation delay could be explained for other factors that would not give rise to a defense claim for example they they stayed the action in the eastern district of california for him to go back on a thirty five eighty to see motion to reduce his sentence when the crack cocaine guidelines change and as part of that there was some effort to try to raise this claim over there but it really wasn't a proper procedure so there's probably a number of reasons that he would you may n a little shorter good morning your honour's my name is neurotic decide and i represent the respondents in this case although the conduct in this case by the incarcerating officials was neglectful that conduct did not rise to the level of finding a waiver or stop under this court's decisions nor what does it did it shock the conscience of the standard from county sacramento versus lewis as applied in hawkins versus freeman by the fourth circuit or bone break versus norris in the eighth circuit so own head i was just going to say should we also be concerned about creating a circuit split if we rule and in your honor it's unclear that county versus louis county versus lewis created a new rule of constitutional law the way it's been interpreted in hawkins and bone break is that the county of the lewis case informs the standard of waiver in a stoppable in hawkins i guess they the pockets court but freeman was decided potentially your honor in the sense that the standard in the ninth circuit would then would not incorporate the conscious shucking standard that other circuits have have applied those other circuits the eighth circuit in the fourth circuit have incorporated the conscious shocking standard into their analysis of these questions versus framing the back panel and that in that case really move the question squarely into the lewis standard and and so that that that standard really informs in the house whether there's a waiver and essentially jettison the a stoppel doctrine altogether was the answer yes we might be aren't my question was on at pons council said that there's a finding of more then simple negligence is that true in the record from your perspective you are the response would contend that there wasn't a finding of more more than mere negligence that the district court the district court heavily scrutinized the response position this case over the course of several hearings thoroughly examine the case law and ultimately found that the conduct was not so affirmatively improper or grossly negligent that it would be unequivocally keep unequivocally inconsistent with fundamental principles of liberty and justice however they response we contend that there wasn't an actual factual finding of more than mere negligence and on that point the cases from this circuit are instructive on in terms of what is act what exactly is mere neglect and what is more than that specifically in green versus christianson a prisoner in that case was serving state and federal sentences the state he started serving his time first in the state and the state reached out to the u s marshal service and asked would you like to place a detainer on this individual and the marshal service affirmatively stated we do not wish to place a hold on this individual and this court held that that was mere neglect at worst marks in u s versus martinez similarly the facts of that case are instructive here in martinez he was not ordered to surrender given a surrender date from the court and  for years prior to his recapture his bond was exonerated the f b i learned of that he had not served his time a year prior to seeking in order to incarcerate him and then ultimately a year later sought the order obtain the ordered martinez was was incarcerated so it's just sort of garden variety government negligence and you're all right i can't say that that kind of here is ideal in any sense but in terms of assessing whether there's more than simple neglect this court's cases are instructive in terms of what qualifies as more the simple neglect to just to give credit for time served well you're out of the the bureau of prisons ultimately made that decision and gave credit for time served under this court's decision in clark versus floyd there's a doctrine that no matter which matter which incarcerating official failed to place a detainer the credit for time served would be granted now even a good time credit the good time credit was ultimately decided by the bureau of prisons the case law is not clear that good time credit should be awarded as under the credit for time at liberty doctrine now the credit for time at liberty doctrine does have its underpinning paintings and cases involving due process violations so i don't necessarily agree that it's purely a common law issue but in terms of the harm mr macpherson did receive time for the entire period he was at liberty is gone and when he was supposed to if he got to get out any later now based on what happened your honor he received it two hundred sixty two months sentence in one thousand nine hundred nine so i don't believe so you are so he got a reduction later he was able to come back and get the benefit of some change in the guidelines i guess under what crack cocaine and yes your so he got a reduction there so it would have been entitled to that reduction if he had gone in when he was you know if everything had gone as planned that there had been no you know he'd shut up when he was supposed to will he get out any later no your honor i believe he would still be entitled to that reduction whether it was in fact it would have been the same they said a release date when he goes in and your answer is the release date would have been the same because they gave him full credit for time served and good time correction does the fact that there is sort of a a multi layer series of failures to act when action should have been taken so we've got the first failure to issue the detainer followed by a second and separate set of failures to act on the warrant and they don't do anything at least a martini is somebody actively sought reincorporation in this case the record seems to suggest that they waited for him to be dropped in their laps by the fortuity of the traffic stop by local law enforcement neatly tied up with the proverbial buffalo and presented as a here freebie well your honor that's a similar argument one raised in martinez as to the multi layered conduct and in martinez as i mentioned earlier the the authorities federal government learned that martinez had not been ordered not surrendered and in their waited a year to obtain an order to have him surrender in that sense the court considered again a multi layered series of failures and rejected that argument finding that there was there was there was mere neglect in that case what  f district court had found in favor of the appellant and you got this matter a government appeal if it at that the district court had found that this was negligence what we have to  case in this record here i am i'm just wondering if it's one of those cases that was one or last in the district court and we would be a position of affirming either way depending on what they district court had found w of these questions are are fact intense and the district court is in the best position to make factual determinations on the record and that would influence the i c my time and the district court's findings would it would likely heavily impact with the court of appeals could do in review i think that what happened here was that when the warrant was issued and the marshal in los angeles was notified an entry was also made what in the national crime information center computer that there was an outstanding warrant and it was when the l a county deputy ran his name at the traffic stop that he learned of the outstanding warrant i assume that that's what happened i  read the record he something that was sheriff granted and then it's not uncommon to run the name of the driver right to see if there than any warrants outstanding and if the marshals had entered him into the i see  time is running short but in terms of simple neglect i think this court's decisions in green vs christians and and united states versus martinez are instructive in terms of what it means to exceed the standard of simple neglect the district court carefully considered this court's case page nine page nine that where he said that the government's conduct over the years amounted to more than simple neglect and the well but that's not an express finding that it was grossly negligent  well i think it's a finding that it was more than negligence well i mean there's a there's a continuum right is there not negligence simple day good riddance growth negligence deliberate indifference and intentional harm  that's how i think of it i'm wrong if sure but even under that those those gradations if it's more than negligence i think the next step up is well i think your point is that you didn't misrepresent their record that those words were set right yes and that i just want to point out where it was yes i appreciate that and and the last point the court had on the circumstances of his arrest there's really not much in the record about that we actually asked  even at the time of his arrest they did not pick it up and the standard check when they call in someone's name and that's why we wanted to call the officer and the officer had actually followed up and the basis for the cars it was it was some traffic violation yes so i mean you don't have we didn't all just fall off the turnip truck when you get stopped on a routine traffic stop they run your name so something came up on him yeah i just thought my client alleges that it did not and that they had the person made some further follow up call and we wanted to get the circumstances and they never came out what that suggests to me is the marshals may have been negligent in not issuing a detainer but once the warrant issued in two thousand and seven film body must have made an entry into some kind of a data system or else there's no other way the l a county deputy could know i agree that that's the standard i mean you would expect but i don't know how else a local law enforcement officer would know that there's a proto warrant out stand there's no suggestion that at that point mr macpherson said you found me here's circumstances never came out because that the the that's not in the record ok well i'm not sure we need to get too hung up on it but thank you very much counsel a case just argued is submitted to the next case on the calendar begun versus scottsdale insurance company has ordered submitted on the briefs and we will hear argument in the light concrete products and pacific coast building products versus national union fire insurance company of pittsburgh number thirteen dash one six two two three