court and you're going to od on my ass a fair brian brown the order authorizing forcible medication undersell should be vacated for four independent reasons one eric brown single drug regimen already makes him sleep sixteen hours a day and dr corbin testified unrebutted that adding a lot of pain is likely to worsen that sedation so it was clearly erroneous to find that dramatic sedation under this plan is substantially unlikely number two how likely is it that this regimen will actually restore mr brown dr grabby refused to say that's the government's expert and no no one has studied the use of multiple anti psychotics for competency restoration so this record cannot support a finding by clear and convincing evidence that the plan is substantially likely to restore mr brown number three the last time mr brown took a lands of pain his liver enzymes spiked which caused his doctors to stop that medication with instructions not to restart it no one has testified that those doctors were wrong and anti psychotic poly pharmacy in this context goes against current medical guidelines anyway thus restarting mr brown on the lands of pain is not clearly and convincingly in his met best medical interest and number four as of last week b o p doctors are treating mr brown under harper with the same drug regimen that was government wants in the st place so i guess the found a different way to do it it up it appears that that's true factually your honor i think either of these four ways the this court's opinion would end with the  vacated and so we don't have a preference as to which option the court the court takes i do think that vacating under the reasoning and osborn is is certainly  supported by the case law i think it makes rational sense and we would support that the court deciding on that ground but yes judge richardson it can talk to me for a nd about why i get that  of why we would vacate as opposed to remain and approach consideration of this new information vacating suggest that this would have to start over where what it seems like this new information ought to be considered and i i fully agree with you on that point and will you know no more in a month than we know today and obviously we're not in the business of analyzing that as a initial matter but why would why would we vacating remained as opposed to simply remain and allow the district court to consider whatever information or evidence is developed and modify or not  that information that seems like what we're really asking the district court to do here no well your honor i think i think the court could consider the information if the court reminded instead of vacating but i think the important difference is if if the b o p s had been treating mr brown with this drug regimen under harper there never would have been a cell hearing and there may never be the need for another cell order as long as his treatment remains authorized under harper so you never so so help me understand that because harper is only about detainees right not about getting somebody competent for trial so help me understand if we bake a did this order under what basis what legal basis would your client be detained because harper itself is not a authorization for detention you have to look to forty to forty one if we vacate the order i don't see the basis for your client being detained and hence i think the the harper treatment we would in essence be doing away with the harper treatment as well as he would be detained any more would he well there's still a pending indictment against him and he did not get bond under the bail reform act so he would remain in custody during the pendency the case then at some point there would be a question under jackson whether there was still a reasonable probability that he would be restored at any point in the future but i think that  not that was we that is that's right under four thousand two hundred and forty one i mean not it seems like to me the court made a forty to forty one finding detained him as a result that expired in november of two thousand and nineteen right in september of two thousand core the government sought a cell order right that delayed it under forty to forty one but if we vacate the cell order then it seems like to me you would show up the very next day to v o p and say let me i got a jail because there's no legal authority for holding him he's so they held without legal authority so i think those are i think what your honor is getting at is two separate questions one is the authority for him to be in the attorney general's custody for purposes of evaluation and competency restoration and then there's a separate question of whether he would just be still in federal pretrial custody so i think what your honor suggesting is correct if there is not under forty dollars to forty one dollars a reasonable probability or that he will be restored in a reasonable period time right that's what operationalize is jackson standard that prevents people from just being held in indeterminately forever when there is no prospect of restoration that that the district court would have to make a finding under a separate inquiry that doesn't involve the cell standard there's a whole separate jackson question there and and that it may be that the court has to make a determination as to whether there is a reasonable probability that who will be restored in a period of time that for which he's committed to be a custody of the czerny general under the competency statute but even if we prevailed on that then there would still be he would still remain in pretrial custody or the government would have to would have to initiate civil commitment proceedings but that's only after the district court finds in the st instance that there is no longer a reasonable probability that he will be restored in a reasonable period of then the district court has to start over and make the forty to forty one have a forty to forty one hearing to determine whether you can be detained to then have a cell hearing in the future it literally it means just what warning over as opposed to remaining which would allow them to take this information into account without starting the entire process over so on your honor i would agree that any cell aspect would have to be restarted over at the court vacated that but i but i think i still think your honor's question is is conflating what i think are two separate inquiries which is one whether the there is authority for him to be held in the custody of the attorney general under the competency statutes and a separate question of whether under the cell regime which is case law driven there is a basis to initiate forcible medication for the sole purpose of restoration but in if the court were to  the district court would make a determination as to whether it's properly in custody the attorney general and if he is then the b o p s ministre to order that authorizes treatment under harper would be the basis under which he is receiving forcible medication and then at that point the district court could determine and if we don't vacate the cell order don't we in essence here in the government what they were looking for anyway they just did it  in a roundabout way and they're selling order in place and time to test their what i think is the theory i say well he can be restored i think that's right your honor and osborne port pointed out that one problem if you were just to you know dismiss the appeal or just remain for further proceedings there would still be a valid sell order in effect and the government could effectively keep that order in their back pocket and if in a week and treatment the same treatment is no longer properly justified under harper because mr brown is no longer a danger to himself or others are gravely disabled then they could just fall back on this existing cell order and so that's a reason to vacate also but the  still orders stayed by the district court and so if we remained it it would remain stayed until the court could consider this new information no i mean they couldn't it couldn't start using the cell order if we remained did they would have to go to the district route we would ask that that be clear i think it's a little ambiguous whether there was the stay would automatically remain in place but certainly the court could address that with specific language the the broader problem though is that if you just remain and their cell itself says you don't turn to sell you don't turn to forcible medication explicitly and exclusively for the purpose of restoration when the same medication is authorized under harper and so it remained would be an awkward procedural position because the district court would be in a situation where at least as of today mr brown is receiving the very medication that the government wants to do undersell under harper and if you just go back to st principles if that were the case before the government motion they never would have filed their cell motion indeed that was the situation we were in for about eighteen months when he was receiving how apparent all under harper the government doctors were saying this is likely ye i think on your honor's another another reason to to vacate would be that the other error in that underlies the cell order is profound and diffuse and so starting over may just be the best way to to to start with a clean slate it's also entirely plausible that whatever the government learns from this whatever the doctors learn from this harper treatment will will cause them to change the recommended  that the district court ought to be the one doing this right and that if the if it turns out for example that under harper or his you know liver enzymes don't change as as this is happening so that's good well the argument about the liver enzymes sort of goes away right and so you know the court can address that in contrast but if his liver does this restart sleeping twenty four hours a day or i guess that's probably unlikely but twenty two hours a  day then the court would take that into account i mean it seems to me the remained is simply to say listen there's been a new development district court you should address this as an initial matter and if the record addresses in a manner that you're not satisfied with then you can come back in and address it with us at that point rather than us making a determination about the value of this if that's the nature of the remained that i don't know that there's a a big functional difference between the two but but i think it's important to recognize your honor that the remaining two go back for further proceedings on a cell order that itself would not have been issued if the same treatment were going on under harper i think there's some there's there's some issues there right i mean imagine a world in which you know i may not be true i mean i don't i don't know this right so i'm not a doctor by the remotest sense of the word but so you might imagine that this is the  maintain it is a maintenance drop and so that would be useful information but that didn't actually restore him to compensate because they've stopped using it for the harper purpose they would need to reinstitute it for the cel without knowing the manner in which the laws of being is being used and whether it will be discontinued once he is stabilized or whether will be used as a main as drug we have no way of knowing whether the harper issue is going to solve the medication there would be no basis for issuing a sell order and so if and when he's no longer on that regime or if and when the doctors say in fact what he's did what we're doing under harper still isn't enough we need more authority undersell then at that agree that it was unclear which that and clear based on what i mean read the medical records and it couldn't be more clear that the doctors at walter reed who actually had seen him as a patient in reviewed the lab results thought that that the lawns of being was the cause of his increased liver enzymes and took him off of it and said not to reinstitute it so  as to which drug costs it and that there was ambiguity further the other said members where at the naval hospital in honor well and the ambiguity was based on what in the records because he was also on another anti psychotic at that time that is much more known for causing elevated liver enzymes so where in the medical records are there of what it is you who just said there were medical workers that said that this was unclear caused it given that the other one that he was on is much more likely to cause liver enzymes and the district court also noted an apparent lack of careful monitoring while this defendant was at the naval hospital and contrast that with the plan the doctor put forth to carefully monitor this to find what did they base the lack of careful monitoring on monitoring what was that based on i believe it was found on the fact that they increased increased so quickly or at least without reducing the medications  so the fact that they noticed it and took him off of it relatively quickly is somehow indicative of the land at the moment you're in a supposed to careful monitoring because they noticed it so quickly yet no i agree with you the doctor again there is monitoring in place in the proposed cell order i was just trying to understand why and on what basis the government is now discounting the government doctor at walter reed that actually saw him as a patient and took him off the one drug because the liver inside issue was certainly not discounting it your honor that is and it's been in there i heard that one doctor thought that was the cause and and took the defendant off the drug for that reason but again he was on two drugs he was on poly promising the other one is much more known to cause elevated ever and times and continue and i just i do i do not know this part of the record did he continue on the other drug it was three so you don't two they took him off of one did he stay on the other one did they take him off of both of that it that other staff had it was unclear which one constant so that both the government and the defendants expert in reviewing the records that we don't have before us said there's ambiguity about which of these drugs was causing the  and maybe begin with the question that i had for him which is if we vacated the cell order o what is the basis for his continued  substantial probability question this court has already issued an extensive opinion on substantial probability and found it to be a lower threshold than the substantial likelihood question undersell although i do want to emphasize and that if we don't if we if we are looking at this and trying to decide between they hating the cell order and remained in the cell order given the given the intervening  understand i get that point help me understand why the government takes the position that we can just affirm with out sinning it back for the district court to consider what happens i mean he i get it's not the exact same story right but it's it's really like quite similar and if what we're really concerned about to take two of your colleagues example is you know too much drowsiness and raising liberals on this why would we won't that when the government want the district court to go back in look and say ok we now have a month worth of information government give me an update own how much is he sleeping what is his liver enzyme testing doing what impact is this having on his mental help i mean why would we wall before we take the drastic step up of of ordering  morning i did not ok could you do a follow up twenty eight a letter on that then yes or on in that case the defense the defendant reached was treated under harper while the cell appeal is pending and actually became competent but the court proceeded to address the cell order and said it was appropriate to do so because the defendant had an ongoing mental illness and if he were to become incompetent again  the sell order would win need to be the government could seek to use the cell order again here when the grape but in great was the the harper or regime so close  yet not identical but so close to the cell regime that was being ordered such that the harper regime and his reaction to it would provide really valuable information about the concerns that we might have with from is there any question that the success or lack thereof of the regime under the harper order will be informative to the decision making process for the cell or is there any question it will be informative it could be your honor i would agree with her that is likely to to be informative but since we don't know how it will be informative how it will be changed we could very easily be back in the position where the defendant is no longer gravely disabled but still incompetent and then we would have to address sal again it would further for their problem these proceedings but it seems to me that the district court would appreciate the additional information when making a decision on the seller i understand your honor and there would certainly be a mechanism for that for this court to manage anything substantial that occurred that this court retain jurisdiction and that's under to sell either party could make a motion the district court could indicate that it had maine and that it would make an indefinite overling and this court could could remain on the case at the thought appropriate and in the government's view that would be the most efficient way if i could return return to the list of what is further questions on the re man the district court relied on a great deal of agreement between the two experts testified that the attendance diagnosis is one that is generally responsive to anti psychotics that this defendant has responded well to anti psychotics in the past including the very two medications in the treatment plan and including poly pharmacy which the defendant received while he was in the navy they agreed that hezzy as he ever been restored to competency  and and the b o p withdrew the certificate of competency so there was no final adjudication of whether he received whether he became competent on how it all after his time in the navy competency certainly wasn't an issue there but we do know that he was discharged back to active duty with a security clearance and served in additional ten years in the navy before retiring been a factor for the most important population and issue here which is this defend that's a real possibility and is there any information that you can give us that suggests that that is or is not a realistic possibility under harper well st your honor we know the for this dependent he's a record suggests that his mental illness seems to come and go given that he served so many years in the navy following the st psychotic episode that we know about and he was stable for back to the fact that on the current level of how adult a low you sleep in sixteen hours a day and like judge richardson i'm not a joke but it sort of stands to reason that if testified that because he is already sedated he did not think additional sedation would be a problem dr bradley also testified that he would in the short term pay for the lens of paean he would give it only at night mitigating the facts of sedation and would only transition to a long acting towse if he thought it was appropriate based on the side effects so attractively preclude sedation from worsening further i would point that sixteen hours is solely based on the defendant's own self report to dr coren and dr portman did not report in his interviews having any difficulty interacting with the defendant because of sedation indeed his pre hearing cell report  evidence that directly correlates that that's what response to the medication after that in and out the acknowledge that there's just no evidence that correlates someone's response to the drug to the level in the blood the nd point that my colleague doctors found him to have been restored to competency and then while your doctors were looking at him he had this idiosyncratic relapse for lack of a better phrase that sort of occurred in the in the middle tell me if that's factually accurate while we ought not to think that's suggestive on the substantially likely prong that you know he's going to respond to medications of some sort so you are i don't think that's entirely factually accurate the the reduction in dose was for about a week i think it was eight days and the the government doctor grabbing knowledge that the cell hearing that although the government said that he was competent and opined on that point submitted a certificate it wasn't in retrospect they realize he was never competent it's not that he was competent and then fell out of competence they he was hiding his delusions from the b o p doctors because they had been incorporated into the delusions they were part of the government conspiracy in mr brown's mind and so when our doctors interviewed mr brown and turned over the reports to the b o p doctors doctors confronted mr brown explicitly about the delusions he had previously hiding from them and that was what led them to withdraw the certificate of competency so i don't and we dispute the notion that there was an idiot excuse me credit response to the reduction in dose and rather than simply if you look at the timing it certainly matches up that this this realization by the bureau of prisons was within days of when we turned over our expert but and that but that's sort of what the district court done right the district court sort of considered that and seemed to take a little bit of a different view than you take and you're certainly entitled to that but i review different sort of the district court on that no i think on that specific point yes your honor i mean i don't i don't think we're making an argument that that particular kind of sub factual finding was clearly erroneous with respect to another point michael my client on the other or my colleague on the other side made was with respect to the sixteen hours a day figure i just want to point out as your honor noted judge richardson is that that was a factual finding the judge actually made that mr brown is sleeping sixteen hours a day so the government is saying well this is based on self or ports but just like the clearly erroneous standard is is you know the entitle to deference when the facts are bad for us they're there at that particular fact fine factual finding is necessarily affect that negatively i agree that the court found that your honor that finding was clearly erroneous and the reason why this is sort of twofold and one is this just to make sure i want to get to the reason why but but that is so the district court said that dr grouty testified that the sedation would get no worse under this proposed plan dr gregory didn't testify to that and we explained go through this in detail on page fifty of our opening brief with all the records sites and our kind of best guess as to what how the district court misread the record basically there was another drug that was the subject of discussion and the doctor started using the brand names instead of the generic names and it's understandable how the district court got that wrong but there's simply no testimony in the record by d is not likely to worsen on this plan on the other hand dr corbin testified unrebutted that the sedation is likely to worsen and both doctors testified the district court found that the sedation is already quite bad sixteen hours a day so on this record there's simply no basis to find that the sedation will not likely worsen and i think when you apply that fact those facts to the law if you have worsening sedation for somebody who's already sleeping sixteen hours a day we are to the point where it's going to interfere with his ability to have a fair trial and so that that's our position on that your honor the other thing i would just close with your honor's is if the court does decide to remain and we would ask the court to at least consider weighing in on some of the legal standards  thank you and we think of counsel ms canton mr green ron for your arguments today and your very able representation on behalf of your clients we we appreciate you from a distance and now the court will be in recess until our next argument thank you