fundamental rules we need to keep in mind today st pleadings are not final brit's nd whether or not to exercise discretion is a question of law and in that regard it is an abuse of discretion to refuse to exercise discretion when it's called for and finally it's an abuse of discretion to sanction actions that are legally permitted now today we cannot undo the damage that has been done to the appellant especially after four years of delay but we can mitigate its ongoing adverse effects the civically the scarlet letter of sanctions that follows an attorney for the rest of his life which which sanction of excluding from the record or striking from the record certain documents well there are actually three aspects of the sanctions st having to do with the amended complaint where there was both a monetary sanction and an expressed finding of object objective on reasonableness secondly with regard to the implementation of the magistrate's order the sanction had two parts st to preclude additional filings which may be moot and secondly to deny access to important judicial records to strike those records from the public just forget about this lesson that you're giving us in different aspects of what your skin in this game the skin in the game is too full i'm out a lot of money and that goes on from the interest rates and secondly i've got a two official sanctions on the record that i have to carry with me from now on not just recitation lee but every time i try to go into a different court i have to explain notes and if i don't have access st off if a sanction stands i'd like to get the sanction removed in the st place but if a sanction stands i need access to the records sealed approve the sanction was on just because otherwise when i have these pro life each emotions reviewed courts are typically going to impose restrictions and conditions that significantly increase the cost of ok i understand that i understand that part and you want sanctions you want us to why really is that the question i mean i wipe i wasn't the district court well within its discretion to say you presented this very assertion by way of a defense the district court rejected it in full on the merits and it was nothing but a waste in this case to refile the same assertion by way of because it wasn't the same assertion the district court rejected it the st time around and said there are some problems here you didn't address the following issues were dismissing without prejudice we turned around within the timeframe previously a lot of by the court corrected those problems what are the problems you're speaking to abstractly what was it that you asserted in the amended complaint counter claim that was that that might even plausibl removed the counter claim from the force of the earlier dismissal of the defense well two things we addressed the due process requirements and we address the eye for eye case more specifically we pointed out that judge bryer justice briar's concurring opinion was entirely plausible and did other courts after us have adopted that approach as well and we also changed the remedy we were seeking we weren't just asking for unconstitutionality we had that as one of three options for what we were trying to do and the fundamental flaw in what the district court's analysis was is the district court said yes the obviousness examinations is a factual determination sure does but not doing that at all is a question of law and that's where justice briar's argument picks up when you have a flaw is a the remedy can you be a little more specific you changed the remedy you were seeking one that makes that makes it stand significantly different and two how did you change the remedy we offered three alternative remedies for this sense well the st time around we said it should be held unconstitutional the nd time around we're saying it doesn't apply here it's a nonissue and the rd thing we said is even if it applies and even if it is issue we have met the clear and convincing standard because of this other evidence in both file histories so that's a different remedy all around and we were upfront about this all the way through that this was new issues of law but it turns out that it wasn't so new because other cases had picked this up after us the communiqu laboratory case and the technology development case both decided on this analysis with regard to se bit of time here one of the reasons i asked for arguments today is to resolve some of the allegations that have come up on appeal before this court let's not have two ships passing in the night leaving guesswork for this court we can get explanations and means particularly advocacy mister you oral argument is fifteen minutes on the side there were markets raised in red and great grief is the opportunity to respond to those arguments that is correct your honor all right so tell us who you are and how much time you have and what you're going to cover your honor this is jonathan from all representing happily lippert components  i have reserved seven minutes of time to address the issues specifically related to the sanctions related to the medical plant may please the court in this case the district court did not abuse its just scratching by either sanctioning mr fountain for filing a counterclaim in violation of the district court's order or in determining the appropriate amount of those sanctions with respect to the st issue there is a threshold issue mr fountain was clearly required to seek leave of court to amend his pleadings the district court you can find this appendix page they expressly stated if more argument at page three and four of his reply brief that was nothing more than a reminder to more ride that since the october th deadline is approaching that deadline must be observed or else the other provisions of real fifteen would apply defense he didn't say even if the clear and convincing evidence standard apply we still win because and he made that the st time in his counterclaim one is that a math accurate to if it is accurate why doesn't it make a difference i believe that mr fountain may be correct in that the focus of his firm defense which was a relatively very most plaiting was just that the clear convincing standard does not apply inviolate due process i would say to answer your question two parts st of all the relief thought was basically the same i don't believe that there is any difference and saying that the clear and convincing standard doesn't apply or we may have meant to clear a convincing standard it was still the same basic theory that the clear and convincing standard violated due process and violet more rights to process i think that if there is a distinction distinction without a difference i'm sorry i don't remember that justice briar's concurrence in eye for eye which was a concurrence and not a dissent made any point about due process i thought he said only that to talk about a burden of persuasion is necessarily to talk about only facts and there is no such thing as clear convincing evidence on the legal question what does that have to do with due process your honor i would agree with you there i don't necessarily see the connection with due process i was just phrasing that makes context mr fountain more rights pleadings that had focused this issue on the issue of whether more rides due process had been violated as a result of the clear and convincing standard so i would agree with you your honor that again justice briar sanctions rely independently on the failure to seek leave to file the amended pleading or how does that basis relate subjectively reasonable and then the court as a secondary secondary level review indicated that even if the court had not dismissed the counterclaim it would have stricken it because more i did not   difficulties or of the objections that mr fountain made to certain amounts of the sanction about five thousand dollars or something representing about thirty one percent twenty two questions is there anything in your read briefs that responds to that and nd what did the district court say about that amount of we had presented the hourly rate we had presented at all of the district court and then going to nd question your honor the district court specifically indicated that it had reviewed all of those invoices and had reviewed the issues raised by mr fountain it had in fact made a determination that the amounts were appropriate and proper and in fact i believe it's at page twenty  could this is just trying to can i ask you this this question if we agree with you on this issue that the appeal of this particular  yes i would agree with that  do recognize that this court has found a limited exception to this rule that requires allows for an attorney who has been sanctioned to appeal but those cases make very clear that critical language negative commentary reputational harm or determinations of lack of credibility those are insufficient to confer jurisdiction to a score we believe that the order that struck mr brown's filings were tomorrow and so it was clearly not a sanction any alleged reputational harm that exists because of it is not enough to to confer jurisdiction now and in his reply hiding anything in other cases i believe it is just limited to this particular case and since he wasn't in any danger of being sanctioned in the court recognizes that filing it was reasonable for the court to strike those documents again just because these are from doesn't like what was being doesn't give him the right s public hearing where the contents of the report is in public and then was used at that hearing and then used in the subsequent court ruling and then a newspaper later on wanted access to the underlying report this is a different situation tom thank you your honor a question was raised a few minutes ago is what does justice briar's concurring opinion have to do with due process and the answer is quite simple due process requires a neutral tribunal if we're looking at heightened burdens of proof and heightened standards the tribunals not neutral anymore so as to questions of fact that may be ok but to apply a heightened a standard to questions of law that's that's impermissibly not neutral secondly a moment ago i heard more i'd say that one of the ground for asking the reversal is the more i did not ask the court to impose sanctions on the  if i questioned how in the world that statement can be made because over and over again on the record they did i still don't understand how they can make that statement i was hoping for an explanation now but  to see that happen but i guess it did moving on your honor's do you have any other questions i can help you with you for your time we thank all sides and the case is submitted thank you