this case in the district court was a federal hate be a split the question involved in this appeal is the district court's findings with regard to counsel involved in the case  despite the motion dismiss i'm smiling you're smiling because findings is the word right that's what we're here to discuss right your honor and i do believe despite counsel absence statements in his brief that there were no findings i don't think you have to use the magic word i found because the court's order is replete with findings of bad faith and misconduct and he his the facts analysis he provided in his order and you say it's replete we'd be doing a red line and we would go through and strike and and you think we'll we'll know each time it's a finding versus a off the cuff sharp criticism of you outlined each finding that we would strike opposition to montage motion for sanctions and contempt originally the counsel who represented the state when she thought her original motion to dismiss he filed a motion for sanctions which was a traverse slash motion for sanctions and it was docket it twice separately but the mad she did not respond to that likely because most of it was so obvious from the record i don't really know why she didn't respond adequately just to court in the tough spot and then the magistrate judge not that initial motion for sanctions and his r n r he indicated that that was denied so i think anything further beyond that he fathered again and again and again and i don't think she continued to respond to finding to be appealable when the sanction order was denied in other words you prevailed below i did not find a case where the sanction order was denied but i don't find this case to be in  worst koster then those cases because the order is so full of findings that just because he openly did not it still doesn't take away the fact that in a published opinion he has found us guilty of violating the ost way to and valid in the law and was currently and flix the limiting principle let's let's imagine he he had said exactly what he said but he said it orally so it's in the transcript but it's not in a written decision that you prevailed and right  you your you because we're looking for a very clear rule of law because judges say things intemperately we do district judges do all the time with that with those oral arguments to findings be appealable i think i would have less of a case if it was just orally on the record not available publicly three westlaw not available to be cited but i do think we would still have a fairly solid argument that he didn't just a would be on appeal that's what's going on so the case goes back several retrial the reprocessed but now we've got to resolve over a year the government prosecutors reputational concern witness in the witness appeal you know i don't think it's not a reputation an injury like as a this is my livelihood this is my career my professional reputation agent with the law enforcement officer on the stand  know i'm shocked that was perjury than the agent gets to appeal i think no no i don't think in that case they would but i don't think a finding of of if there was a finding of perjury i think there might be separate proceedings but i don't think that's what a lot of other courts are doing right there saying if there is what we do in the in the appellate when we are disciplined it requires discipline suspension some sanction and that that seems to be other circuits are doing but i agree walker is a much more generous r d and i read faulkner to say exactly what happened in this case he went right to the line even though he ultimately denied the motion for sanctions he referred us to a case where sanctions were entered he entered a verbal reprimand he family violated the oath of our office and he found the that we should revisit the lawyers crave the code of professionalism for the state's attorneys so i think the fact that he ultimately did not it he in essence he didn't and i mean he didn't he did find the bad faith they did find the use of his inherent power to issue that warning  nicer and i understand and ins into that that is what happened that that case was referred but often found in today's electronic age this case has already been cited in the mississippi supreme to work pointing to in  this in the underlying proceedings but it started in occurring opinion because the petitioner provided this opinion to the mississippi supreme court so not only has the district court found is that in this one judge's courtroom but now the entire mississippi supreme court has seen this are so the way it's structured in mississippi the attorney general's provides attorneys for all the state agencies but for federal hate biggest cases there are three now for that handle all federal habeas so it appears that the judges in our districts never so in those cases out to a department which is they always come to the attorney general's office so there are four of us that handle federal habeas any kind of federal habeas whether it be revocation or convictions on the i mean these are very sensitive situations right in terms of judges needing to police attorney behavior and then of course judges not federal judges especially not broker braiding  you see any creative options here are you you were you didn't file your opposition when the motions for sanctions so you claim that it's just such obvious clear error but actually that just wasn't given that there was no opposition we are so so i guess appeal from the criticisms last finding since walker that's one for your honor i was not able to look at a case that so it's sensitive but you're right walker does say if there's a finding of professional misconduct than that is a jurisdictional fact i wonder with all the various opinions and findings in this case and as i read the record your client apologizing that mr montalvo gets released erroneous lee they get brought back and then he gets reclassified seemed to me they were right to apologize to the judge for all of the very enormous mistakes made here and they didn't follow the opposition why wouldn't did the who've us to have this really made it back to the district judge so the district judge can say well this  criticism is a finding this one is just an opinion this is that way we'd know exactly what our jurisdictional facts are and maybe you'd convince him with the filing you didn't give him previously until the motion to reconsider that in fact none of this is working what's your thought on that and that's my point you're i mean i that was my next point is that our mission to reconsider we laid out specifically each sinnott sex and his or her own often related gay things in motions reconsider they expect that to come right in response right most of you you've been there a lot right motion to reconsider that's usually not when you litigate things and rice that is full of replete with apology he doesn't know what's going on both say in may doesn't so both sides seem to have some opportunity to retreat a little and maybe in fact there are no jurisdictional backs here maybe the district judge on analysis of say you know i was frustrated and i vented but i didn't mean to make a finding and i think my concern was send it back to the district judges that we have we've had two hearings and to be honest with you until we got to the st hearing i don't think counsel who had taken over the case of that time realize that he was considering the sanctions because the magistrate judge had already done that motion for sanctions so i don't when they say when he sets the hearing he said it as an omnibus hearing so there was no direction in the order as to why we were going to the district or excuse me but we thought we were there strictly on the finding of fact or he wanted to explore this not facts and so during that hearing is when he st mentioned that still before him were a motion for to two motions for sanctions because the prisoner kept every time he responded to one of our it as a response and motion for continue and and he kept asserting the psion exact arguments he had previously addressed and during these hearings we developed the facts to show that none of that was accurate we didn't not timely follow our response we recording and he never wants indicated i'm interested in that recording we can i mean we kept looking at it said column back i know there's e mails in the record where counsel again and e mail the department is there anything else with regard to the revocation that you can give me anything else that you have any transcripts any information and then when she left our employment and the other attorney took over she again in getting ready for the omnibus hearing contacted apartment corrections again and said we've now been ordered to provide the person who's responsible for making the hearing or the transcripts with there are no transcripts so now let's see if we can track down the person who's responsible for making this it please the court my name is jason steed appearing as a special respondent in this case and judge hayes and you touched on i think what's the real problem with the appellants position is they provided no clear rule the block standard is essentially a i'll know it when i see it kind of standard where this court would have to decide case by case whether any particular criticism or negative comment by a judge constitutes a blot on the on the reputation of the attorney that is significant enough for the court to step in and conduct some kind of review of that that statement the only way to derive a clear rule from the two cases that really matter that  really apply here and that's the walker case in the home as i am case is the clear distinction between the two situations is the presence of a hearing a contested hearing over the alleged misconduct in walker there was a sanctions motion the court clearly considered that there was a contest over alleged misconduct the court made a finding of blatant misconduct and then this court said when you've got that situation and there's this finding a specific finding a blatant misconduct that's the kind of thing that's going to convey standing to the attorney to appeal i mean i'm sympathetic but i'm i'm i'm sympathetic mentally with the st circuits much stricter rules but the st circuit itself has drawn the distinction with us and said you're familiar the williams decision and in that case they specifically say and then you know magazine we make it sound like walker's a clear rule if the order contained a finding that hollander had committed professional misconduct we have just diction to review so it doesn't turn on a hearing in elma zane it seems to be a refinement and then you look at the sentence here the one that jumps out at me is the attorney general's office disregarded court orders presented incomplete said that the distinction in elma seen from walker is that there was no disciplinary hearing being held or anything this was just a there was a where do you see the requirement of a hearing as a limiting principle in elmo saying it refers to a that was made in the district court in the elle magazine case sounds like a factual finding but the court that the the attorney a lack of candor to the court failure to disclose certain information to the court that sounds like a factual finding eighteen says there was any kind of hearing about this this is just a negative comment negative observation is the kind of thing it's kind of criticism that's not appealable and that's what we have here the problem is the way to distinguish whether you've got any kind of formal factual finding is was there a contest over this that could produce an order that has a formal finding there wasn't any all of the argument an explanation and evidence that they present to say no no you're wrong about all of this that all came after the order the  and the problem there if the error here is that once the district court got all of their arguments and explanations and everything in their motion to reconsider and then still left its order standing if that's the if that's the error then what the appeal ought to be here is an appeal from the denial of the motion to reconsider and there's a whole body of cases i've noticed that for they noticed it but they haven't argued anything they said there's a whole body of case law about what the standard of review is for denying in the motion to reconsider cases where courts were required where this court remains and says you need to reconsider you've made you know i've been asked this question has asked them why doesn't it all beg for us not applying a bright line rule and saying we know what you meant you meant to find professional misconduct as to pose to this was extraordinarily frustrating  however the law does mean that if you made a finding that's appealable and therefore re man to let the district judge now with the benefit there are immense response decide ok i've entered because you were apologising this man had to go in  clarify whether these replete all these disapprovals were findings or not those are jurisdictional facts we need to know where they were it forces the party in the district court to go through with the red line rather than us to try to figure out what's a finding versus anger but i think that what that sounds like is a reversal of the denial of the motion to reconsider it is a little bit that you're right and i think the problem there is forfeiture because they've cited no case they've cited they've made no legal argument to tell this court can do that but i think then in order to explain how the core below abused its discretion by denying the motion to reconsider and it really should have reconsidered given all the arguments and  explanations and cetera et cetera in order to explain why this court is stepping in and reversing what the district court did you have to build that argument because they haven't provided it to you and i think that puts the court in the role of advocate rather i don't know we c injury met walker then why do we know which attorneys get relief do we know which findings are clearly erroneous and what would the really be well so st in getting to the merits assuming there is jurisdiction here and getting to the merits i think there's another forfeiture problem with their faith they failed to the site any clearer case they fail to argue clearer they've said discords wrong they're wrong he's wrong is wrong but standing up here and saying he's wrong is not the standard for reversal they have to explain how the legal standard of clear error has been met and they've done the now on clear air for example the the finding of bad faith if we call it a finding of bad faith feigning ignorance right the court explained why he felt that they had feigned ignorance about their interest in about his interest in a recording they haven't explained how that's clear error the court felt like it should've been obvious from the beginning that he wanted an audio recording he pointed to statements they made about how they were looking for an audio recording then at the hearing they acted like they didn't know he wanted an audio recording he he felt like that was famed in bad faith that's that's plausible and that's all he needs to put the thumb on the scale for clear error and they fail to explain how that rises to the level of clear error for reversal on the altar document they've offered explanations for why the n t s c changed the eligibility for early release and that sort of thing but the document itself is altered it is altered and it is faults it is a false document because it has an entry in two thousand and eight that was added to say that he was removed from trustee status and they will concede and admit that he was not removed from trustee status in two thousand and eight they didn't discover he wasn't eligible for early release until two thousand and fifteen or maybe too late for two thousand and fourteen so if they wanted to remove him from trustee status and say he wasn't eligible for early release there should have been an entry in two thousand and fourteen or two thousand and fifteen revoking that and explaining why he doesn't get that they went back and back  the document and put an entry at two thousand and eight that they will admit didn't happen in two thousand and eight it is a false document and they didn't explain the false document they explained why the immediacy was revoking the early release eligibility but that doesn't explain the false document that special responded we appreciate standing questions at the bottom of the numerous appeal of the notice of appeal you see the mississippi attorney general's name if your nose or maybe all of  think that that identifies who the opponent or appellants that the attorneys of the attorney general's office i think that identifies the pardons but the question on standing is whether those parties on appeal those appellants have been harmed sufficiently to give them standing to bring this appeal and the heart that's where the question of whether what the district court said rises to the level of the kind of harm that can be a standard i read it t what think this efficiency for standing is the question of whether the findings are of a nature that can that create a harm for the attorney general's office that conveys standing to appeal and that's the question and i think my reading of walk with elle magazine is that there has to be a contested dispute hearing of some form over the alleged misconduct to produce an order that could have a formal finding that then can cause the sort of harm that can be standing and that's what we don't after and they admit that the near the bottom of page four of their reply they they admit there was no hearing on any of this alleged misconduct all of their explanation and argument against the criticisms comes in the motion to reconsider which then the court just denies in its discretion and they failed to raise any argument about the denial of the motion to reconsider under the body of law that would govern that so i think on standing it's we don't have formal findings and then there's forfeiture problems about the motion to reconsider the denial of that getting back to the merits there's they haven't they failed to demonstrate any of the alleged findings are clear error because they haven't argued clear they've just said he's wrong and here's why he's wrong but they haven't explained how it rises to clear error and every single one of the alleged findings there's a plausible basis for why the judge is frustrated and lodging these criticisms and if if there's a plausible basis for it under the clear air standard that dumbs on his scale on on on his side of the scale and they haven't explained any any particular finding the change of positions i think in many situations the the appellants are talking past the y're shooting at the wrong target the judge complained about changing positions and he's talking about they changed their story about the reason for the release being revoked that st it was because he didn't have an address that that was a provable and then later it was because he wasn't eligible for early release in the st place and that was a change of position and they admit they changed that position as they got more information he also complained they were changing positions about whether the ripple reclassification hearing even happened they kept st they said that there wasn't a nd hearing than there was a nd hearing then it's not clear whether there was a nd hearing there's no recording or transcript of it so we don't know if a nd hearing a reclassification hearing occurred the judge was frustrated with that and felt like they were changing positions about that that's what he when he criticizes them for changing positions and taking false positions those are the positions he's talking about their response is no no our position was consistent from the beginning that he had failed to exhaust his state remedies that's true that was a consistent position but that's not the change in position he's referring to so again they failed to show any clear error on that criticism on the floor your urging i need to read all missing more closely i didn't think it said disciplinary hearing is the prerequisite i would almost think that it a federal judge that you know makes a finding of misconduct without a hearing that would be more suitable to appeal then right because that's even more abrupt you don't get a hearing but i'll go back and take a look and see if i would have thought the bigger point would be the motions for sanctions and temper denied so they actually prevail and that there is no law in the walk or a line of authority where an attorney who wins as to their misconduct can still appeal and i think that that's right too i think the ad so the problem with walker and elma zain is the discussion of these standing questions is a few paragraphs long in each opinion walker that's the entirety of opinion it's maybe four or five paragraphs same as a long opinion about a bunch of other stuff but it only has two or three paragraphs about the standing question the adams case from the rd circuit i think is pretty helpful in terms of providing aid and extensive discussion of this standing question and it discusses the other circuits and how the other circuits have ruled and that sort of thing and in the adams case that the adams case is actually a lot like this one where the t angible sanctions were denied there was no formal reprimand but there were statements that sound a lot like factual findings and in adam's the rd circuit said there was standing to appeal but the key difference again and this is this is neither the adams case nor the oma zene case nor the walker case none of these cases say this explicitly but the only way to make sense of all of them the only way to reconcile them is that the difference in elm is eighteen and this case is that there was no contest about the alleged misconduct before the order came out finding misconduct in adams the key difference is there was a hearing there was a hearing about motions for sanctions here there were there were two motions for contempt and then there was a response that was characterized as a motion for sanctions but all three of those motions they only raised one issue the petition always one issue he said you should find these attorneys in contempt or sanction them because they didn't produce a transcript when they were ordered to that's the only issue that was raised ultimately the court here doesn't criticize them for failing to produce a transcript that doesn't exist that's not the criticism again they're swinging at the wrong pitch when they when they say we couldn't produce a transcript how can we be found you know to have engaged in misconduct when we didn't produce something that doesn't exist that's not what he's criticizing he's criticizing the failure to respond in a timely manner to repeated orders to provide a transcript or an audio recording that's what he's complaining about it's clear in the text of the order itself so that actually in this case even though there were two motions for contempt and a motion for sanctions the the misconduct that is being criticized in the district court's order none of it was actually raised by those motion those motions just talk about the failure to preserve transcript and he that's that's not what he criticizes in the end so we have here a case where there was no hearing there was no contest about any of the alleged misconduct the court just expressed it frustrations after a year and a half of proceedings with all the dancing around it was happening and changing positions and putting false documents before the court and failing to respond in a timely manner to requests for transcripts and a recordings but there was no contest about that there was no hearing about that there were no competing filings about any of that all of that comes after the order in a motion for reconsideration and that's the distinguishing it has to be inferred from the case law but the distinction between adams and walker and elmo seen is that absence of any contest or hearing that would produce an order that could have formal findings this case doesn't have anything like that before this order and so i think  it's i think to go to your hypothetical about a decision where there's a what sounds a lot like a finding without any hearing might be more troubling that's where they really should be appealing the denial of the motion to reconsider and citing all of that case law for why a court ought to reconsider when they when it's been presented with what has been presented with they just haven't done that it is there no further question conclude that hollander violated a legal or ethical duty early so i don't wring that requirement into that and i didn't either but what about what about the fact that what you should be brief to us is the denial of the motion to reconsider we appealed to reconsideration and the original order perhaps we didn't set out there per presenter for the reconsideration we did walk through the clear air standard for appealing the order and we discussed in at length while those findings are clear era and if you look at elle magazine and you decide on this i'm sorry outcome we reassess the evidence in the district were never never had the opportunity to you believe that this report did have that opportunity in the motion to reconsider and during those hearings there was evidence presented during those hearings and those are the that's the evidence he were allowed to make his foundings with regard to each of these aspects of the in mississippi you may know this both at the attorney general's office and just as a member of the bar if a judge makes a finding of misconduct is the lawyer obligated to sell purport i know in the department of justice you are you have to report to the office of professional responsibility so if there were swear construed as a finding was this would this then go into the a g s office to their professional responsibility people do you know i apologize i don't know that's right their party doesn't exist and  there isn't a duty to report to your licensing authority either i guess not i know there were findings made in this report with regard to myself particularly when i didn't in an appearance in this case until the or after the order had been entered so i certainly couldn't have contributed in theirs and specifically names me as the attorney who are didn't even follow anything in this case i just bring it up because in the federal government often that's where the vindication comes people and we do respect the district court's right and to run his courtroom and to to certainly take control of his courtroom the way he sees fit but i think in fairness in this case there was a lack of candor on behalf of the attorneys who were perceiving the original order to answer provided that we provide full and complete transcripts with the district court acknowledged that our practices advantage with a motion to dismiss to provide the relevant documents that are required it respond to that motion to dismiss in addition to in this case there were no full and complete transcripts because there's been a failure to exhaust all the past the prisoner so there was nothing ever there's no record ever produced to be able to produce to give that to the district court then when district court in of the nd order counsel did respond to the district court's order explaining her position that she there were no transcripts but there was a hearing but yet there was never an order by the district court to produce a hearing and she continued to argue the position of the office that it and that he failed to study constitutional climbing so from the beginning and she stayed consistent through her arguments and she did as there was an argument there he would he was properly revoked and that was our office argument the entire time but in addition we determined throughout the course of the investigation that he didn't have to have a revocation hearing because he was improperly released in the st place but there was never a chinese for our position that he was properly revoked and didn't provide an address there was testimony at the st omnibus hearing that he failed to provide an address and the answer about the document is it wasn't altered now your honor that doctor was not altered and that was explained both in pleadings and at the hearing that the  corrections in its normal course of business when there was no place to make the notation that this was a sex offense in their suit in their computer system which is why he was released when he should not have been released because he was a sex offender so when they brought him back he and they made that they went in there that the computer system of trying so they made the change and added that he was a sex offender and then made an injury only time sheet that any previous trustee time was removed because he was not entitled to earn it there is an entry on that time sheet but this is a record that is kept in the normal course of business that was provided to us as a plane out but there's certainly no alteration and any time there's a change any time there's a change with any if tom's taken away or anything's removed then there's a an entry but i doubt they did it back to the day he started arm in the arm because he was never allowed to own it so when they put that injury in there they removed his arm time from the day he came into the system but that was documented on that time sheet i see that