as the justice department argued it was trying to convince the rules committee to change these the service rules criminal for the purpose of a special appearance is to avoid automatically waiving threshold issues by operation of law that was the justice department's argument and it made sense because although the service rules changed the need for a special piers to challenge a threshold issue like personal jurisdiction remains it remains central what might be true  some circuits it doesn't seem to be true here though right i mean hasn't the nd circuit passed on this and said that person jurisdiction of this sort can be argued on appeal as long as you preserve it and you've clearly preserved it right where we're attempting to preserve  but we were not satisfied with the precedent in the circuit we think there is in fact some precedent the jews it can be waived in the case of mclaughlin as a side in december when we review de novo an appeal from a final judgment on this your personal jurisdiction there's a come before us after a final judgment with it has been a general appearance we have allowed the challenge so i'm not sure what case you're worried about but two things one is those are individual cases and we think that the rule has been very clearly stated in those cases but the rule especially mclaughlin which was just decided was that defend its present before the court have accepted the personal cert stiction of the court we don't wish to be present we want to change challenges various of presence but here you personal jurisdiction but they also didn't raise it either you're going to you would raise it you could raise it so big that case is not on point it was a presence case and it was not challenge and then it was waived but you could challenge it the district court has said you can challenge the government has said they're not going to argue waiver so i don't see the issue there is no history in this case this circuit of special appearances to challenge personal jurisdiction there is no history of that there's  generally it's doesn't on the th circuit in a case just last year said that it really doesn't mean there is no long standing historical practice anywhere they start they said they surveyed the country and said doesn't exist really anywhere it makes sense for it to exist in these unusual circumstances however we are a foreign company foreign corporation with no us operations we don't wish to come into the court and even through it entering a plea acknowledge the person jurisdiction the court we think is a threshold issue this ought to be decided st we're not in the same position as an individual whose body has been brought into the court and and for whom this court other courts precedent is quite clear that the court can establish personal jurisdiction regardless of how that person arrived section we think we're a different situation because we're a foreign corporation we should be able to raise these issues in advance and not have to enter a plea st there's a with there is some precedent i grant you your honor that it's not a robust series of hundreds and hundreds of cases it's also an unusual situation and we have felt sixteen cases were foreign corporate defendants have been started with work were defendants in a lot of special appearances including many with corporate defendants we've never found a case where a corporate defendant was not permitted to make a special appearance now granted we're we survey the entire literature it's possible there are reported cases but in every reported case worth were foreign corporate defendan ass as asked where they were granted it so i think this is there's actually a reasonable historical basis release and that the the cases the children are cited or i don't should not apply to us because we're a corporate defendant we put in this rather unusual situation by the aggressive approach from the from the prosecutors i'm not sure why should the rule be any different for a corporate a corporation versus an individual what would be the rationale behind it just same corporations can make special appearances but not individuals well in some situations individuals are essentially allowed to make special appearances to me that's what the servants are good side in their jobs but i think that the corporation is it has no body it is not physically in the court and that's usually the basis for whole thing is asking this court to issue an extraordinary and drastic remedy of mandamus to obtain an order directing the district court to provide a special appearance that it does not need in order to make a motion that is not likely to not want to submit to the jurisdiction even for the purpose of entering a plea but the test on monday miss is whether a hot bank has a clear an industry will write to that relief and whether it lacks an alternative remedy it has a remedy hopping doesn't like that remedy but it has a remedy the district court has laid open the pathway for hot bank to raise its jurisdictional challenges it has done that in two separate orders as the court noted the government has repeatedly taken the position and will continue to take the position that so that corporate defend foreign corporations are different than it is and that they said their research has shown that every single time that any foreign corporation is asked to file a special parents that has been granted it will just be i th as as you noted the th circuit surveyed the same body of case law that bank has cited here it's exhaustive search has turned up a handful of cases that without a lot of critical analysis about a handful of cajuns granted a special appearance i think that is will be allowed to raise its motions will not be held to have weighed in the arguments regardless of the merits or lack of merits of those arguments i think the fact that hawk bank is an entity actually cuts against it so the one case that all bank aside and where mandamus was granted directing the district court to issue to permit a special appearance is that which as you case that case is very different from this case it was an individual defendant that defendant surrendered to foreign authorities for the purpose of extradition entity cuts against his argument and shows that and him as in a special appearance is even bus appropriate here and in fact of helping were granted the mandamus relief it seeks it's hard to see how any foreign defendant would be precluded from seeking and obtaining a special appearance to challenge prosecutions and indictments without being bound by adverse rulings with bringing petitions for mandamus to this court seeking denials of special appearances or seeking  of adverse rulings on motions brought in a special appearance so the extraordinary and drastic remedy would in fact be greatly expanded by the position that is taking so unless the panel has any other questions i would just note as i'm sure the panel knows the government has not answered the petition under rule twenty one b because we've not been directed to do so we don't think it's required we think the petition can be denied without an answer is going to sort of change course and you i'm worried about being told later on in this proceeding the because the bank had entered a plea we had waived the right to challenge personal jurisdiction we have there's no clear line from the case law where weaver asserts itself and there are cases where defendants have been told that they had waive this right it is not like for instance a attack on subject matter jurisdiction which obviously could be raised at any time even after a guilty plea but they i mean so the government said they're not going to stand it you're not going to change course and start arguing whatever you're worried about this court it seems to me changing course not not doing what we did barely a month ago mclaughlin i see mclaughlin very differently th see my understanding among often is that presents for an individual equals person jurisdiction but the person jurisdiction does need to be assessed obviously i don't i didn't read it as a case which said that it wouldn't be waived i do see is a very and we have cases going back thirty years or more right i mean toscanini goes like you are leaving that levy about thirty years ago so you're worried that we're going to make new law on this subject and you're going to get left high and dry i'm worried that yes that's correct there's enough pressure there enough cases out there coming from different directions that we don't feel we have certainty about how the court respond especially because both the government and the district court have taken the position that it's not even possible to attack personal jurisdiction in a criminal case using a minimal context hastur or whatever other test that that has been positioned at the district court issued is essentially an advance advisory opinion that whatever motion we might like to file on this point would be moot since motion well the court just a court honestly your honour's been equivocal not point well the same time urging us to make motions following the general parents with the other hand saying no you can't this is not this is not a permissible type of motion it's difficult to interpret with