the decision in the second proceeding and i'm wondering whether that five days affects movements whether it means it's not moot it is not your honor why for two reasons to begin with mr yang was serving a term of imprisonment this entire time it was just the issue of where he was serving that term prison because some way big issue i mean the reason he was not in the halfway house was back in prison i think i think it's called close confinement  briefs was that the discipline proceeding that was then vacated and the vacating of that discipline proceeding is what in your argument makes the case moot so what i want to know is since the whole case is about whether it's in the halfway house or prison it's a practical matter whether that five days meant that when the district court decided the case it was not moved it is not your own for a joke explain sure to begin with he was serving a conditions of confinement were altogether different because of the discipline proceeding that was i think the government conceded that it be set aside in any event it had been set aside that well that there were two disciplinary hearings that words were held in was in that time the five days the result of the second proceeding which from which he did not appeal that is correct it was a second proceeding i assume because he didn't appeal at all cured whatever due process violations or problems were with the first hearing that is the contention of sort of wipe as far as i gather the argument is you wipe the slate clean now the disciplinary proceeding that was the outcome of that had nothing to do with the first one even though he wound up in the detention center judge cars question focused precisely and what my interest is what i'm interested in is the only reason he was imprisoned for that five days was not because the second hearing said you should go back to prison for five days it was because the first hearing it put him there and it was that long before he was sent back to the halfway house or whatever not in fact he was never sent back to a halfway house he wasn't he was never sent back a halfway house he stayed he from the time of the original charge up until the expiration of this term of incarceration nov eighth of two thousand and ten he was being held well for the most part at the metropolitan detention center in los angeles some of that time was spent i believe that another  but most of that time was spent at n b c on los angeles ok was he in jail for that five days because of the first proceeding that put him there or the second proceeding extending it or what it was not you're on the second hearing  not really a part of the record however he was found guilty of having or have to have committed a lesser included offense of violating the rule and he was ordered to spend time at closer confinement rather than going back to the halfway house or anything else again though he was hit this entire time he was serving his original term of incarceration didn't lose any good conduct time and so he was released on november eighth of two thousand and ten and as the government has contended look there's no question it's part of his term as it were just talking about conditions of confinement kind of analogous to the challenge about whether somebody is in the sure whether they're in the general here we're not talking about going back and looking at whether or not you know some other procedure should have been held or anything like that the question is at the time that this judgment was issued did the court have jurisdiction in order to the original report and recommendation that was issued by the magistrate judge and compare it to the substance of the supplemental report recommendation the ultimate judgment that resulted from it there is no setting aside of the the original  disciplinary hearing there's no order of you know taking away a good or restoring good conduct time or any other effect on history agnus term of incarceration instead there's just a naked declaration and i've never heard the term judgment needs to have some sort of effect on it and purportedly unlawful detention or incarceration and there needs to be some level of an effect that would affect whether or not somebody is has been convicted of or whether you know the church how long they're going to be spending and how does one challenge the conditions of confinement as opposed to the fact of confinement that would be literal institution of a civil rights action and that's basically what we're talking about that that is precisely you respond to that what we respond to that is that there needs to be some underlying dispute there needs to be some sort of but but which didn't exist in the situation the actual curing that was the subject of  was vacated and as once it was vacated there was nothing more for the court to do in a he views proceeding the there was a challenge that was going to be made to that indeed to come in a different sort of proceeding not was reason to believe that whatever the outcome of that was was affected or infected by the vacated hearing it seems to me then he has a remedy of appeal from that supervised release and in the system also the judge did something about it th spencer versus kind expressly held that that type of collateral consequence doesn't count of the collateral consequence again however you have to have consequences of what in here there is nothing as you know there was no underlying here understand your contention at least in part it is that the government ignored the judge's order to file a response to your petition on the merits instead of filed a motion to dismiss correct and i design a standard that's at the core that maybe other aspects to your contention but in my question to you is this it wasn't that simply a matter of discretion for the district judge i mean if the district judge felt that and somehow the government had ignored its order it could have said oh no you don't i told you to respond on the merits of this seems to me that that's well within the zone of the district judge's discretion to decide whether or not the government has a right responded appropriately or not that doesn't go to the issue that goes to one of my contentions on my cross appeal that there was no jurisdiction over the as you've probably already gathered that really concerns me in this case once i know that the second decision of the bureau of prisons is not challenged and i know that the second bureau of prisons decision that's one challenge sentence you to custody for the remainder of your sentence and that the first proceeding was a expunged and that we cannot affect terms of confinement  how how can it not be moot it seems like there would be no relief that the district court or this court could grant that would affect anything i think that's a red herring the district court don't tell me why i had already granted the relief in the report and recommendation the second hearing a report and recommendation doesn't do anything magistrates recommend to the district court in the district court decides what it did was it had the effect in the real world as opposed to all i know you're right about that in the real world but the r and r is often ed but had the effect of causing my release the second hearing isn't part of the record and there couldn't have been any appeal from that it's just could have benefited you that the district court could could have granted the relief had already been granted because the result of the reporting recommendation was the release and the benefit that i got from that was that as a result of the first hearing that was overturned because of due process violations my term of imprisonment had been increased from november eighth two thousand and ten to about the semper eleventh and that was the relief i got i didn't have to serve an extra month in prison in close confinement i had never been in a prison i was in a camp in north carolina that had a stream running through the woods that was the first time i had actually been in a real significantly different of course of course you're correct on that however i want to know what the district court could do to change that when it decided the case because the bureau of prisons already had changed it well they changed it i got the relief of it being changed they didn't get up somebody didn't get up one morning and say oh let's hold a rehearing the disk with the district court did cause both legally and as non cause my release on november eighth i got my relief when someone has gotten their relief that doesn't constitute mootness i don't know what you call it but i had got where you had you had not gotten relief by district court order to have gotten relief as a practical matter because somebody at the bureau of prisons or u s attorney's office or some place read the magistrate's report and recommendation and said we're going during the course of litigation certain matters got briefed and it may be that it caused the the b o p to self correct it's error but i think the question that we're wrestling with is on the date that the district court let's which wasn't until september twenty seventh of two thousand and twelve whether there was still a case a controversy at that time i don't believe there was a case or controversy at that moment i believe that the government took voluntary action and says i shouldn't be confined and that after reading the brief whatever jailer or prison authority or whoever it is is confining them says they're right they're going to win this case and they let him out doesn't that move out they've yes it does in that circumstance where there hasn't been intervening judicial action once there's you dish all action that results in the relief being granted there isn't mootness i'm not aware of any case that stands for that proposition i think the defendant voluntary cessation of wrongful be behavior can move the case unless the behavior is somehow reasonably expected to to really occur and then the court  is i don't think you have any standing let's assume a cut let's assume that day after day after day ever since a tied up the mess they made the first time with you they've continued to do the same thing with countless other inmates i don't think you might have had standing in a civil rights action as a class action but this certainly i mean a class action not havior seems to me to be a non sequitur what risible rights action and sure that's not what's in front of us what's in front of us is a single person claiming seeking and getting relief via a process from which the appeal is taken there was no adverse consequence ultimately inflict the time you accept the time that you spent in the detention center but again i think that's a matter for civil rights contention it's a condition of confinement not the fact of confinement and but let me ask this i asked the government i have never heard the term declar that reason if no other it there's no such thing as declaratory hey vs release or is that i didn't say that was that's what the judge called it i think it's in the nature of what is called declaratory relief understood as something i hadn't before and tell me if i've got it right at your saying what really got me out was the magistrate's report and recommendation and it wasn't moved when the magistrate made his report and recommendation the bureau prison says not corrected its error so the case is not moot i was looking at it in terms of a magistrate's report and recommendation being merely a report and recommendation and not a decision so i think you're looking at it that as the magistrate's report and recommendation having the practical effect of a decision so it should be treated like a decision that i've got this right that's exactly what  for the court to consider that although and do what it wants with it i thought a final judgment not appealable from there i understand all that notwithstanding that i believe that it had the effect and judge kleinfeld as properly characterized my argument with respect to fifty five let's put a minute on the clock thank you the only thing that i think that i can respond with at this point is that the only what is being challenge here is the september twenty seventh two thousand and twelve judgment by that time there was no relief that was going to be available to mr yang and i thought a magistrates report recommendation was merely a recommendation and not an action by the court mr yeah gman pointed out correctly that as a practical matter it's often treated as though it were a decision by the court because they're generally accepted and it had the effect of a decision in this case i don't remember any authority for what i had always thought i just i don't know why i thought it is a clear it is clear and it would that you she was actually briefed in our of briefs on cross appeal with respect to that issue a report a recommendation is not a final determination is subject