and i actually agree but that leaves the court in a somewhat strange position when we have a text like forty two forty seven eight that says that someone may move for a hearing doesn't actually he does i'm sorry so you're on or forty seven each says after one hundred eighty days regardless of whether the director of your facility has said that you know his move for a hearing you can move for a hearing under forty seven  doesn't tell us who has the burden of proof doesn't tell us what you need to show us the district court to discretion to deny you and we just don't know how what all what grounds is that i would not say your honor that it gives the district court discretion to deny i would say they tell you i only mean i didn't i misspoke i didn't mean did not i the motion i just did not have to hold a hearing isn't it doesn't it but district court is even though you might not infer that but i was set up wording what seems to suggest the lack of guidance we have met my office stop talking for the rest of the day your honor i would never want that i do not since it's not likely i'm going to get that my office we've wrestled with these cases and we've wrestled in forty seven each again is silent there are questions underlying the very narrow issue here that are currently pending in the district court and actually pending at least one case before this court in a somewhat indirect manner as to what do you even need to show under forty seven age forty to forty eight he is very clear that the burden is on the respondent in this case the committed individual to show by a preponderance that they no longer meet the standard forty seven each is much broader it actually just says a hearing to determine whether you should be discharged so it gives us very little guidance so what we did in our brief and i think is the correct thing to do is for this court to analogize to what we can find to be the closest analogues in the law and here you have stripped down a basic case where one party moves for relief the other party opposes they both present some bare bones factual allegations or actually more than that in our case the expert report as well in the government's case and we contend and i think it's obvious on the record that creates a dispute of material fact in choosing how to resolve that dispute the district court could say take this evidence in the light most favorable to one party and if doing that there's no way under the law i could grant relief we don't even need a hearing i'm assuming everything you're saying is true and you still lose what the district court cannot do and i cannot find an analogue in the law where the court's ever allowed to do this is to say concerned has to state claim for relief it's possible yes it has to yes you're right yes i'm right it doesn't i'm sorry i'm sorry could you repeat i want to make you know just as with the way you i was really asking about the applicability of the standard and you would argue i think that it doesn't apply in this context right your honor and why not i mean even accepting would you argue that your client's allegations are plausible yes  clients his allegations are plausible and just looking into the record a little bit you know there are certain things i think the district court relied on what's your answer that's not a problem i'm sorry could you repeat i must of you were saying yes no that's on me right that i think as long as there are plausible allegations and again one thing underlying this case that we have not we did not get to in the district court and again it's strange to be up here saying what we need quickie so he was found insane he was found not guilty by reason of insanity and then louisiana the state of louisiana said to b p released you need to prove to us you're not dangerous and the supreme court said no and the reason is you were found not guilty by reason of insanity and that was certainly enough to put you in confinement but it does not obliterate your due process right to liberty and in order to keep you can find the state needs to actually can demonstrate continued confinement i know this is way outside of the region there are days where it is sort of struggling for well some ground rules it would logically seem to me that the petitioner would have the burden civil context but this is an odd one syllable because it's he's he's detained he's deprived of his liberty yes and your honor and that is exactly right now i think obviously there are possibly a few cases in the law where the nonmoving party might have the burden of production hey i'm not familiar with this area but i am told that you know in a breach of  should be louisiana which says that if an individual was found to be dangerous by reason of mental disease or defect and therefore was properly confined the burden does not shift to him to then have to prove his way out and i think congress understood that in part they set this hundred eighty day limit in forty to forty seven each so you couldn't have a situation where someone just keeps coming up and we are happy to have supplemental briefing on this point again it's not if the court so desires it in some ways it is relevant to the standard we need to get to only were we submit this court could also resolve this in a much more narrow way and just looking at the record during appendix eighty nine the government's expert dr ross she mentions that mr mclaren describes an encounter with the clinical coordinator of the c t p program that he described as a negative well that right there demonstrates that his non participation in this program and we know this to be true he's our client was driven by something more than simply a lack of desire for treatment the district court obviously relied heavily on what it simply  called mr mclaren got older and that's not enough well he didn't compare the reports join appendix one twenty one one to one twenty one to one twenty three a lot more happened then he simply got older there was a ton of scientific research  aid to the day because you get older there because he didn't his charge the charges were hands on they were pornography  know i actually i went through the allegations and i didn't exactly see anything other than well as you get older you are less likely to be a sexual predator which is the passage of time which to him and he but his medical expert spent three hours with him i think yes your honor but i want to be clear that again and this is how judge howard referred to it as well you say the passage of time he got older but there's a scientific basis for that if you compare the two reports and again this is what would be done at the hearing if you look at with the passage of time don't most people get older  say well everyone i'm aware of you're on a bit but here's the difference one of the few things and this is an area of science where the experts disagree you know that this is how this is so different than say something like schizophrenia or are cases we deal with under forty t forty six the experts disagree on here but here's one thing and we point this out dr ro so points out in his report that with very little exception advanced aging decreases the risk for and i just want to compare that dr ross said page one hundred five that his age fifty four conduct which again was twenty years ago you know he's over seventy now it suggests that his sexual interest sexual sexual offending beginning at forty and and your honor i would say that there is a difference and if you look in dr roselles report demonstrating there's a difference between age fifty four and age seventy dr ross also said on one o six his physical functioning again just physical deterioration the ability to the packing if you pat well and the ability physically to be able to commit crimes and hurt people when you're seventy one year old person who's lived in b o p she says it does not appear to have decreased since he was in the community i was in college when he was last in the community twenty years ago and dr ross didn't know him then so again here is she's making a factual assumption that you know on cross examination if we were to get to the hearing to which we believe we're entitled it would have easily been torn apart and instead judge howard didn't give us that opportunity didn't give us yes you're at the beginning you may have mentioned this and i overlooked that but the other thing that at least to me appears to be significant is that there's been a change in the the standards from the first that your client was diagnosed to now which suggests that the medical community is understanding of pedophilia from a lifelong condition is something less than that it would seem to me that that by itself would suggest the need to make some inquiries right and thank you your honor we fully agree and that's obviously on pages ten and eleven a by a reply brief where we actually say you know not only has mr mclaren changed but the science has changed and this is evolving the new d s m came out and here was the change it went from saying pedophilia was a lifelong chronic condition to it is not a lifelong chronic condition now we don't dispute that mr mclaren we would say still suffers from pedophilia but certainly the idea that science is now saying this is actually curable certainly gets to the question of your ability to control yourself and possibly having it when a new actuarial instrument also came out the mats one and it with complete candor to the court the matts on it is honestly not considered as robust of an instrument as others but again that's something that at the hearing we still presented this there's a new actuarial instrument that gives him a two point five percent recidivism rate that's enough to open the door for because i believe because we believe even though it's not really brief here at all that the government bears the burden of proof that we simply need to make the allegation and that would get us a hearing now you know understanding that may be a bridge too far for this court we would say at a minimum and if this court wants to resolve this case on the more narrow grounds as long as you present factual allegations that if true would meet your burden of proof of demonstrating that you were no longer sexually dangerous that's enough here we went further than that we presented an expert report opining as much and the alternative you know guess the alternative would end up having these cases and again i don't think this is at all efficient civil litigation just packed with expert reports on both sides you wouldn't have cross examination you would end up deciding these on the paper another thing just to set this court's mind at ease that you know in terms of are you going to open these floodgates you know up my office handles almost all of these so we definitely crunched the numbers and as of earlier this week are fifty nine total people committed in the eastern district of north carolina at butner and because some of them are panel cases i don't want to give an exact number but there's only between five and ten challenge hearings that have been filed  judge boyle the district judge he actually grants these simply by virtue of moving for them better of course as a matter of course we've only filed three in his court this is these individuals are mentally ill but they are very rational and very competent and we understand that if every hundred eighty days were knocking on the courthouse door all we're going to do is annoy the fact finder who holds the key so we very much and a lot of these individuals to enter the treatment program you know they they understand they say i am sick i want to be cured so you know look at mr mclaren's case he was in for over two years we weren't sitting there one hundred eighty days saying give us our hearing we waited until we could get an expert out our own money to evaluate him and to say now we believe we can win a hearing and his case considering the way it went down at the initial hearing where the government expert was even saying he probably is better for conditional release thing commitment he's when you think we would be there are one hundred eighty days knocking on the door but we're not so i know that's a practical concern but i also know practical concerns shouldn't be ignored the other example is you know forty to forty six which is analogous statute  filed for one challenge hearing in two thousand and sixteen because again we understand we're not here to waste the court's time we're here to do what's best for our clients and again that is not filing frivolous litigation this wasn't frivolous we deserved a hearing and we asked the offender treatment and that's what the district court it's just a fact amongst other facts a district court consider because the standard that a district court used in this case we would contend is the correct standard to to merit a hearing is that the the movements request for hearing must stay with particularity the extent to which his mental condition has improved since his commitment and what he's done if anything to me or to discharge hearing and other words so that's a factor that the district court can consider absolutely it's a it certainly goes to the issue of whether his condition has improved or whether he's actively pursuing treatment that that may impact his condition so what's the impact of these kind of external changes that the other side talks about the d s m changes the evolution of this new instrument is that at all relevant to the analysis up to the extent it's relevant it's not i don't think it's a m his disorder has remitted and the d s m five doesn't actually have a category for remission of paedophilic disorder you notice in looking to disinvite that other disorders other sex disorders do have a category for remission but paedophilia disorder does not in this case along with that standard your honor that the district court use we can do that it was the correct standard there were two other cases but what about   generally a person whether a person meets a certain category of risk in relation to their age and other factors that are also considered convictions prior offenses against children a lot of factors that they use so as mr mr br mentioned the mats one is not used at least in this eastern district north carolina very much even though it was all there's a downs the problem that i have is all of this sounds like a the kind of thing that needs to be hashed out in a hearing the credibility of the instrumentation and whether or not that changes in the d s m is something that needs to be considered with respect to this particular detainee as i read the statute it doesn't seem to me to be a very high it shouldn't be a very high burden to at least warrant to hear well again your honor the the data and the studies that dr roselle referred to are not particularly applicable to mr mclaren talking about the match one of the although he listed a percentage of two point four by possessing child pornography showering with a boy taking pictures of a boy after they started his house two days later that actually found a rubber penis in arc with other items in his car so you're you're going into this sort of level of detail that the district court did not go  facts before the district court and the record indicates a district court consider them they are just beautiful facts all of that there's been no showing a bit of an improvement in his condition or that he's done anything to show that he's no longer sexually dangerous dr roselles report honor is evidence that the district will consider but it's not a magic ticket just because you have an expert report to get a hearing on your position i take it that mclaren has the burden of proof it is i'm sorry the burden to show hearing that the person is no longer sex are dangerous then they then the court would release them so it didn't say who the burden is on but it did mention the preponderance of the evidence standard so which is a civil which is a civil case around moving on to the issue a going to hell think about the whole idea this ban was punish it was criminal activity right yes wrong and criminal law purposes he should have been released the criminal law purposes that's correct  a district court commitment order that says it's a civil it's a civil case which which is which is clear the supreme court said these are civil cases the district court commitment order found by clear convincing evidence that he was a sex offenders person now it's his burden to show that he's no longer secular than yours your honor and the reason he bears the burden is because the district court order is still in place so that ought to say that's permanent it does  not say it's permanent artifact what it contemplates periodically refreshing that basis book keeping him committed that it does wrong it would be logical that the government would have to continue to show its necessary well your honor regardless so we would say no your honor but regardless of that and this case mr mclaren simply has not put forward evidence notwithstanding doctors it was reported that that  his condition has proved improved inning let's take that logic let's say he's about seventy four now so seventy three instead of yes right so let's say hypothetically he continues to do what you say nothing case doc roselle had the opportunity to put in his report if in fact that was the case that due to his time and due to his time in prison due to his hypothetical his condition remitting due to his physical condition lying on two other cases where the district court denied motions for forty seven h hearings which which this court affirmed in unpublished decisions the court held that in order to merit a hearing you must put forward evidence to show improvement in your condition particularize facts i should say that show specific changes your honor and in this case he didn't do that and and again the district court was a was certainly aware of his condition of the time and committed him so now that mr mclaren's condition had improved he could have stated that improve he didn't state that he references some studies well he says he says he evaluated him he concluded that he's qualified to discharge because even though he suffers from not that whether or not you suffer or don't but that the condition can ameliorate over time and he mentioned that it could your honor it could increase it could fluctuate or it could go higher it could go lower but he never said his went up high or low or didn't fluctuate at all he just cites the side of the d s m so if we send it back all mr mclaren would have to do is to have a medical doctor internist testify more particularly with wrong but that's obviously that's hopeful that's what you hope for but it's be is more than that and i think that's what his expert is saying that it's not necessarily his condition has his motivations but there's another change just a physiological change and that's what comes with age like testosterone you know that right yes around that that dissipates in males  that it has a tendency to yes you're also tend to see it all depends on what your age is your honor if you're at a younger age it increases once you get to thinking about what i've read about other people you know  what you get a certain age it does decrease yes but it does that mean yes right so and that's the same thing last about ninety years old it may never be any evidence that his pedophilia has improved or his changes have been effect it has on what he look what he sounds like you know we always talk about this because we were we defer to them so much because the classic line is it was a district court there was able to observe the witness in the chair and that's why appellate judges that we defer bragg nack i mentioned he could petition the court be required to grant his petition every hundred eighty days and it would be a problem why me if he could show essentially if you could so something so he his first petition seventy five you would see what you're getting close to a chronological cusp where the likelihood of his ability to engage in violent sexual predation is diminishing sufficiently because i didn't think there was one i thought well part of the problem well the district court used a i guess a required the movement to to make a showing of particular particular fact to show an improvement in their mental condition your changing circumstances as chief judge gregory mentioned and you're comfortable with different here but again it dr roselles report is not necessarily a magic ticket to a hearing if it was then we simply hold a hearing every hundred eighty days or is as frequent as the movement wanted to ask for  thank you lockers thank you rick for a few minutes three minutes thank you your honor you know i wanted good gregory just to respond you know the government there is no on point published case about forty seven each government talks about comstock comstock disc putting the burden on the defendant or on the respondent that was dicta and that was simply describing the statutory scheme and it is not yet that i would you be particular with particularity or change of circumstances that that would be sufficient for mr mclaren that would not be sufficient i think for the due process clause because i believe under fuchsia the louisiana it is we don't even have to show that much because if the state wants to keep you locked up because you're dangerous it is not too much of a burden on the state and is way too much of a burden on you to say the state has to periodically continue to demonstrate your dangerousness and you know that that's not me you know that's justice white writing in the case i do want to say to you and comstock it was dicta and it was citing forty to forty eight he they talk about the taylor case that relied on andersen another unpublished case which is actually unclear as to whether it was under forty to forty seven eight or forty two forty six if you kind of look at it the court talks about it it's not clear taylor also cites evan off an eighth circuit case that was an initial commitment that was not a challenge hearing it was much like in comstock just describing and they also cited a sealed the defendant case that was under either the question of what's needed under forty to forty seven each and i think you sort of touched on that judge gregory that they don't have a case and i don't have a case and believe me i've looked it's not out there in judge duncan you'd also asked about the city p d program the in tone case from this court seven forty two f third one fifty one this court described the c t p program for mr in tone is sort of no choice at all  he was pending commitment so there was some sense of he didn't want to make admissions but in our own district court the motto case any h t o that case was a native american who did not want to participate in c t p because it felt it was not compatible with his status as a native american in his beliefs and the district court they are actually said he was released and it said that it was quote understandable he did not participate in c t and these are district courts who are more on the ground and more familiar so i just want to reiterate the point i think we made strongly in our brief which is the c t t programable fact it's not in the statute and it's certainly a factor the court can consider but it  be adverse right or may answer yes thank you your honor it is a fact that can and almost certainly would be discussed and possibly even be central to the hearing if i were the government attorney the first question i think i would ask him on cross why weren't you in the program of course that's something the court can consider we were not given that opportunity therefore we asked the court to vacate the judgment of the district court and give us a hearing