good morning may it please the court elizabeth barros federal defenders of san diego on behalf of mr thomas i will try to reserve one minute for this case involves the district court's extension of a commitment under forty two forty one without providing any meaningful process the district court's actions in this case violated the statute the constitution and its factual findings were based on a scanty record consisting of only a brief letter from the facility were clearly erroneous now i'll start by addressing the issue and hopefully i'll have some time to twenty sixth hearing about the may eighteenth order is the order of this in front of us as a no you know your honor the at the june twenty sixth hearing we requested that the court vacate the order that we had been issued on may eighteenth that was in purpose in effect a motion to reconsider and the court did ask to hear arguments are you arguing that the june twenty sixth was a timely motion to reconsider based on what objections and the court said yes what is the document before us that we are to review your honor that you can review both what happened at the june twenty sixth hearing and the  document a written order on may eighteenth or are may nineteenth and i think that's clear from both tearin bellegarde that when a motion to reconsider is made calls into question the underlying order as well it does usually there is an order either granting or deny is do we have that here the court ruled that on june twenty sixth the court did rule is that even a minute order to that effect that the judge granted a motion for deny the motion for reconsideration there's nothing in the docket from what i could tell your honor i don't think that that appears in the docket but the court clearly considered the arguments and ruled on them on the merits that the june twenty sixth hearing what piece of paper in the excerpt of record are you relying on the transcript of the hearing as well as the me transcript in and of itself is not dispositive as well i think that the yes and we moved to vacate twice counsel requested that the court vacate the hearing that was that you are the order excuse me that was that you are twenty two and again at your twenty five counsel renewed the objections objections with the court again knowledge that likely had not reviewed that was that you are twenty seven when the court said but i might not have been aware of the fact that her objection was lodged counsel move for mr thomas's release at that time that was that you are twenty two relief which would have been premature refused to do that at that hearing and the court denial of that motion is what we appealed which also under dieter and bellegarde calls into question allows this court to review the original underlying order formal report received by the springfield from springfield there's been no hearing before the district court and there's been no finding that hamann has been it hasn't been released he has not i checked this morning and at about  forty five the p still listen is being held at the springfield facility he has not been released from springfield so he remains at springfield we have not yet received a report from springfield there's been no hearing before the district court there's been no finding of competency and in any event there remains alive controversy the criminal case remains pending and remains pending the competency proceedings remain pending and this is also an issue that is capable of repetition yet evading review i would turn the court release from the facility because it is an issue of capable of repetition yet of evading review again in look we at least know that the doctor there has sent an e mail indicating that she is of the in you know that he's end by the town which i guess would be next week or early next week yes your honor that is true but if the district judge is in fact a neutral detached arbiter we don't know what he will find we also don't know if mr thomas is going to what we do know is that he suffers from a lifelong mental illness not only that if i would turn the court to turn or versus rogers and in that case the father it was a case involving a father who was subject civil commitment proceedings for failing to pay child support and the supreme court held that the matter was not because mr turner had been the subject of several prior civil contempt proceedings and it could reasonably be expected to occur again in the future in this case i would turn the court to forty six that is dr gilbert's report dr gilbert from the m c c and it notes that mr thomas was this has been the subject of numerous prior competency proceedings i counted five plus one transfer from a prison to a hospital when he was in state custody it also notes that in at least one case he was subject of competency proceedings numerous times within the same case and so i think that case the court denied mr thomas even basic due process and that violated both the statute and the constitution the statutory scheme right in light of the constitution's demands entitle mr thomas to a hearing before he could be committed to the hospital for an additional period of months or years now the government says that once an individual is committed to a mental hospital the district court can continue their commitment impose additional commitment periods without a hearing of any kind and when they talk about how long a person can be committed to the hospital they say that the court has to look at the statutory matter i'm in this case ten years as the benchmark for how long the district or about my career you know i disagree with that as being the complained about that the failure there was a hearing you know there wasn't any district court made the proper findings yet and there was a little bit of a delay which you complain about but nonetheless he eventually made it back to missouri yes about a six week delay he was your evaluation cracked and then the doctors back there say well we need more time yes and they send another letter another e mail with the read with with an explanation yes and it's in response to that that the district court signed the may order right yes and he made findings yes and apparently your objection your written objection cross paths with the district court that right yes it was docketed before the district court's order but the court later acknowledged at the june twenty sixth hearing that it had not repeat those objections and what you're suggesting is that what the district court had to do at that point was to order in everybody for a hearing before signing that orders that correct under the circumstances of this case yes here the district court acknowledges that the letter that the facility sent cited to the wrong legal standard there was no opinion by the doctor that there was a substantial likelihood of restoration within the additional time period the court or the doctor did not a pine that she expected or even hope mr thomas to be restored within that time period and i think if you look at the statute and interpret it in light of the doctrine of constitutional avoidance that the statute does require that a hearing be held in this case you know you don't do you contend that the statute requires a hearing to i do you are forty two forty seven d uses broad language and it applies that hearing and any hearing under the chapter where the person's mental status is the subject of the hearing now  forty two forty seven d m forty two forty one under the same chapter three thirteen as this court as your honor recognizing gillan water in the court previously recognized in sturgis forty two forty one d requires that findings be made and i would by her that at some point she didn't say whether that would be within four years within four months or within forty years when she didn't set any timeframe for that that was her opinion the court was required to make findings that that triggered minimum due process rights and so at that a hearing be held because the statute in that case required that findings be made now if forty two forty one d requires that findings be made that means under but curing was required and the type of hearing that was required to determine that the court needs to look at forty to forty seven d which dictates what that hearing must look like and it specifically says that a defendant is entitled to the right to be present the right to counsel the right to good morning to man the court nicole reese fox on behalf of the united states this appeal is untimely it is moot and it has no merit unless the court has questions about timeliness i'll start with the mootness issue what do you think we're reviewing where we're reviewing you are reviewing them may eighteenth order in the notice of appeal it states that mr thomas is appealing the order extending the commit the commitment that order expressly vacate the june twenty six hearing date so nothing that occurred on june twenty sixth is before this court there was no motion for reconsideration had there been a motion for reconnect reconsideration the only issue before this court would be whether the district court abused discretion in denying that motion and unless the motion for reconsideration is brought within the notice of appeal period that notice of appeal period is not told and so because the only date that she points to is june twenty six which is not within the notice of appeal period that whatever happened at that hearing would not be enough to sort of call it call into this appeal everything that happened prior so you see that what happened on the twenty sixth of june was the court just was entertaining comments and observations by the by counsel yes it's a little unclear from the record what exactly occurred the best i can surmise th the court had its regular calendar that day and that the and because the this case for some reason remained on the clerk's calendar the clerk was asked to call the case and did our prosecutor handling the case wasn't in the courtroom because he saw that he thought that the hearing had been vacated so at some point the person who was in the courtroom went and summoned him and he came and in the meantime defense counsel explained that she sought to raise reraise her objections and wanted the order vacated and wanted mr thomas released the district court didn't even have the case file in front of him so when he says says things like oh i don't even know that i saw the objections i don't know that i signed the letter he didn't even know he hadn't prepared for the case he didn't think the case was going to be held so anything that the judge said without really knowing that a hearing was going to be held shouldn't be considered and to the extent that anything on june twenty six is considered the only question is did the district court abuse its discretion in denying whatever motion was raised that day so we moved to dismiss the appeal as a move as your honor noted dr tyner has indicated that mr thomas has been restored to competency this appeal the question raised in this appeal is whether the district court erred in extending mr thomas's commitment period under subsection d to a now that process has completed mr thomas has been  competent and proceedings are underway to transport him back to san diego at that conference he has not yet been reduced to a finding of the court that is true have a right to challenge that yes and that that process is under a different subsection of the statute what's going to happen now is under forty two forty one either district court will hold a full competency hearing and will determine is mr thomas at this point competent if he is and then the case will proceed to trial and if he is not then we start over again and then we say ok if he's not competent then should he be hospitalized again or are we at a point where he we're going to move to civil commitment proceedings so whatever happens when mr thomas is returned to san diego that can be the subject of its own interlocutory appeal because we will have different findings we will have different evidence will be in a completely different posture than we are here so the posture here is whatever is that issue here is complete and this issue is not one that is capable of repetition yet evading review because it doesn't mean either prong of that standard i'm capable of repetition standard asked whether there's a reasonable reasonable likelihood that this specific situation will reoccur and that's entirely speculative to say that mr thomas will again be deemed incompetent that he will be hospitalized for one hundred twenty days that the facility will ask for an extension and that the district court will u well your honor i would submit that mr thomas filed his notice of appeal of a timely fashion immediately after the extension order was granted and expedited the peal of the appeal as they did and the situation this court would have already issued a decision because we had almost i think it was five weeks of delay before the notice of appeal was and we're here already you know within a very short time period so this sort of it was your honor and so have had the notice of appeal been filed on may nineteenth this court could and likely would have already issued a decision which they just that it is not the type of issue that view and then look on the mirror yes the question the question on the merits is whether the district court clearly erred in looking at dr tyner's letter and concluding that based on that letter there was the substantial probability that mr thomas would be restored to competency with that hundred twenty days and the district court took the reasonable inferences from that letter which is that he was improving with medication and that doctor trying to request it one hundred twenty days and determined that that was reasonable and that her opinion which did cite the correct standard that it to the hearing the hearing is the hearing to determine the member mental competency of the defendant which is in subsection a subsection d where we are now starts if comma after the hearing so to say that the statute  specifically requires a hearing before the subsection d determination is made but then is silent and therefore must also require a hearing that the extension period makes no sense it is not consistent with the statutory scheme due process matter this is sort of an intermediate stage we're not talking about a competency determination that is then going to lead to trial here it's just a question of the likelihood that the defendant is going to be restored to competency and as we have here at the point when the facility says yes he is competent that's when he's entitled to a full hearing and that's exactly what's going to happen when he's returned to san diego there will be a full competency hearing the defendant point can call his own expert and all of that sort of procedural rights will be available at that point he has no due process hearing for the extensions europe regardless how long extension is going to be well your hon like a ten year extension at that point we might agree that hearing would be like this is i can't tell you how long i need is an extension i don't think that would be consistent with the statute i think that the doctor does need to request a time period in this case she said there was a substantial probability and she requested one hundred twenty days and so the point at which a hearing might be required under those particular circumstances were not there now here was a very modest request for one hundred twenty days and in fact the district court said a hundred twenty days is sort of the outer bounds and in fact we know that it took less than one hundred twenty days and as soon as mr thomas was deemed competent the doctor notified the court and he's being returned and that's exactly what due process and the statute would require unless the court has any questions for the questions i would say you got a minute applies in all circumstances not in this particular circumstance and so the court said so the government says that if the facility requested an extension of ten years then maybe in that circumstance the a hearing would be required but in determining whether or not i carry on as required in the statute the court house to look at how the statute would apply and in all circumstances and it's a cardinal principle of statutory interpretation that when an act of congress raises serious doubt as to its constitutionality the court must first ascertain whether construction of the statute is fairly possible by which the question may be avoided and if there is a construction of the statute that's fairly possible here reading finding to imply a hearing then unless its construction is plainly khan contrary to the intent of congress the court should adopt that instruct that interpretation and the government pointed to nothing here today nor in its brief that would indicate that a hearing was plainly contrary to the intent of congress and having reviewed the congressional record myself i could find nothing either ok thank you thank you for the argument very much matter submitted at this