action more than three years ago and at the same time the painters filed a motion for class certification the cases brought to challenge the government's policy of mandatorily detaining immigrants pending their removal proceedings tail until last night my understanding was that is pending charges have been dismissed and in fact what's happened is that he will in all likelihood be dismissed is this heading larceny charge it's been a in terms of what it would have told you before this if we put aside this little glitch around mr gale i would have said the personal claims of all of the three plaintiffs they no longer have personal claims but they do have cl i think that the i understand your question your honor i think the issue is whether you look at this as one motion or if you look at it at different motions as to promotion so how do we distinguish from the surgery where there had been in motion for class certification it was granted the class was decertified plaintiffs settle and then when they seek to file their next motion for class certification we said that they no longer had the interest that was necessary even under guarantee pending motion for classification and she says plaintiffs may refile that motion so to us it always seemed like it was that stay in motion it was not a new motion it was the same motion she never denied it the language it was  would point you to it says there is there is a decision on the merits of class or not once but twice and no motion to certify the spending at the time plaintiff's place which settled the district court simply refused to determine the class or issue the time for appeal has dropped there is no denial here of classification for richard the first denial cane in her order of january two thousand and fifteen that was the first time that we could that we could appeal it i think you'll find on the record that's not the in having many months intervening between the conclusion of that first motion and the filing of the second where there is no name plaintiff that has personal interest and well let's say that the district court had recognized at that point that there was no live case and there was no hindering motion for class certification appealed at that point to our court would we have had sufficient reason in what were any meaningful decision by the district court on the denial without prejudice pending further discovery for our court to be in a position to needing fully provide appellate review because we this is different from the story and when we do need to figure out what the law she basically rather just to do more discovery she could have she could have decided and there is certainly ample briefing of the class certification at that point and she could have decided class certification at that time and that would if that's what we frankly exact is going to that there was a decertification order that the court said appeal that there was never any any sort of that was and here it was it was the court wanted us to do more discovery so she could decide the motion and then you know when she had the more discovery in the motion then there is a motion to dismiss and she decided refile that motion with an amended definition and so in our view this was all one motion and that handed because it considered that improper given guarantees investiture of sufficient interest to prosecute class action through at least eight if a needing ful a i nineteen ninety five conviction where there's another conviction that could form the basis for mandatory detention and die out we suggested that this might be a keep well with repetition rate of reading review exception history i assume there's nothing you could point us to in his criminal history that gave him exposure for a potential second nature of detention well i think i don't think that there was anything prior to this new arrest that's my understanding i'll go back and look at it again but i don't think that there was anything prior i mean in fact the prior conviction because it was before nine hundred ninety six there had been a decision that he was now eligible for to trust the relief determine whether there's some way that there's he could still be exposure because of this other conviction but if he i guess you could say there's also the complication which is that that does not as you said does not trigger mandatory detention unless there's a more recent post nine hundred ninety six arrest and conviction and that's right it's really this current arrest right now which if it is not dismissed then there is there was no before the class representative that had any live interest but let's also assume are willing to use this as one continuous proceeding aren't we still left under  question of whether this court now has authority to to reach the classification issue and then the next issue that you raised which is whether you have authority to reach the merits where my response is going to be that depends district court had not made any findings and let me just quote to you from what the court said in this basically the court said that it was able to evaluate the record because the record was sufficient and because the district court hadn't made findings it could evaluate itself and certify a class and we say two other cases where  classification decision and there's at least two areas that i would like to call a series well one error was obvious in terms of the last decision where she said there's no point in certifying the fires because you would get it's a constitutional remedy she would you decide classification because without deciding class certification she had no jurisdiction to reach narrates quite apart from matt she was wrong when she said that and the government i'll be very interested to hear their position she was wrong when she said that the district court decision was going to hold sway but that it was going to abide by a district court decision their general policy is they don't acquiesce to a district court decision even on the constitutionality of the statute that depend the maybe and also that i find it but yeah go ahead i don't know any way she was wrong on that she was wrong i mean it for any of those three reasons but just simply because without certifying a class there's no release ok she's required to shift but is this a case where the court has said that there is yeah yeah the class action a termination i didn't read it that way  but was really i'm not sure all the subsequent cases are that you're you're referring to ok here are the decision which was vacated on other grounds by the supreme court we had some discussion about you know and there is a case which we did not address in our briefing that maybe we do the supplemental pretty thing on the miss and classification issue in general because we had for quite a bit of thought into it and since then as to dry this case wasn't right as appropriate for that for the coach it is your classification decision and why if they do they could reach the nats so we get to that so i know for them that was matters were in your briefs i was mistaken classification you would seek to file yes your honor we brought a return to the initial motion for cross certification and that the classes we have defined it before she narrowed it that was the second to air that i believe that her narrowing of the of the definition certification decision it doesn't matter what the merits ruling is and especially if you want to be able to have it if the court's going to be helpful to have review of plaintiff's claims you need to certify the class so she basically narrow basis for narrowing the definition of the class so you're but you're right we don't have to go there because she didn't have jurisdiction to do it given given your agreement on that point do you want to recreate that we would need to vacate that question of her denial of classification to appear when she made that decision she said reeves admitted that motion she didn't say i'm denying your motion for class certification you had the opportunity here everyone seems to recognise th because this wasn't one motion and that the motion that was denied and so therefore under gary the name plaintiffs had to have had a life claim at the time that they filed a motion we look at this is run motion her to have  does but i don't believe that there's any authority that says you can't do it and when you look at was a a result there was no request for class certification we went back and looked at the briefs they had that brief quest certification and to this court so that was not before the court that was not an option here there's been this briefing in the record before the district court there is briefly before this court we recognised that classification as yesterday which is a decision jurisdiction because the claim wasn't right and valid each to regulate regulations around each to be agricultural workers and then to smith's the claim without prejudice on on appeal the court said we're not going to rain and we to file in the new motion for classification that is you want to pursue on the first essentially the first motion not the third motion which is now this superseding motion and the one that is before us on appeal in light of that doesn't that bring the case a lot closer to list already in the need for you at a minimum to have a plaintiff with a live interest to file a new operative a motion for to do it but then there was also the air when she directed that the class definition had to be narrowed that wasn't there and so you could reverse that and say that she should be reinstating the initial motion that was and i assume with determination that they were no longer a danger to public the keyboard reputation part of this is that they might indeed face removal charges where there are so then the question in the rocky is actually to follow this whether it relates back to the founding of the initial filing of the complaint which in this case was filed by mr gale personally in may of the twenty twelfth and  then was changed to a then he then this change to the class action with with a with the first a minute complaint in november of two thousand and twelve at the same time that the first motion for class certification was plaintiffs claim has become moot in the interim the district court is to be anything other than a lutherie don't we need the district court to proceed beyond the denial without prejudice for development of discovery in the record so significantly there is there is also a discussion with with the court in the court's decision that is on in the transcript just far as what claims are actually being made what claims why she thinks that they are there might be a need for further discovery the government oppose that we believe that the that the record was sufficient at that time to make a determination on discovery that it is what it is to dismiss  interesting thing is also out in may twenty thirteen the district court dismissed both kayla and circle just dismissed their individual claims and smote that left one individual basis provides anything close to that type of relief or protection class wide had all the class members in beneficiaries of the declaratory judgment it were and the district court could proceed to decide with the current nameplate s in motion for class certification and what happens beyond that you're raising a question you don't is the district court  unless the plaintiffs can can bring in a new warm body a new plaintiff who fits within the class to say ok i am here without a live body there is not adequacy because there is no one with a direct interest who was involved in the litigation that's my point that without a life without a life body that has a life case or controversy there can be no adequa kind of benefits and the scope of the benefits that are available a class action versus an individual action you've got to provide for us for asserted that the government's taken certain steps so that in this case not necessary but you're asking us to hold as a matter of law that assessing can't alone in the a basis for denial clan stratification and any and that depends on the assumption of the government to that entire statute or process if the district court finds it unconstitutional and that that finding powers to reaching it say that it's just unconstitutional in new jersey we would have to we would have to  to constitutional particular regulation the government has sometimes taken the position that it make changes practice in that circuit but it will let the other circuits address the issue and will i handle it on an ad hoc basis until there's some consensus what's taken up by the supreme  that would have to be recognized and there's lots of things that are actually come from that rather not it's necessary to involve congress in we writing the statute that's all part of the process that goes beyond any notice to a potential class members about their rights that actually was there is a notice to the individual class members about their rights as far as cost of class membership there that's one thing that goes back to the form that the court found did not provide sufficient sufficient due process and was changed that form was the form that specifically would give notice to them of their rights here so there is there's two it had that and then that path particular area was all in place after the two thousand and fourteen decision of the court but specifically addressed the question of  if one is going to leave very little or see you in this case goes back there are no life queens no price representatives that are still in the case if the case goes back you still need a live body  that time because there was a pending motion at the time for cause certification the extent that any time i can say that i think there were there were motion had been dismissed without prejudice so there there to have to have been it for it to go back to the initial notion for classification but i do not feel that the case law actually supports the  it is there is very very little information out there as to the impact of motion of the granting of dismissal without prejudice versus with prejudice on whether or not you even assuming if i understood you correctly that was twenty three criteria are met the supreme court and she grow stated under rule twenty three the language a class action needed nineteen growing his claim in a class action if he wishes doesn't that language from the supreme court suggest that the district courts do not actually have discretion that is is that per se abuse of discretion to deny certified whether this this action is appropriate whether it fits within the twenty three beat twenty three b standards there is always the part we government has always argued that in many cases that  whether they adequacy of the record on the rulings by the district court on the motion to certify are adequate for review by rule twenty three at least one criterion is not satisfied do you agree with that you know that whether it be there or not your honor i'd need to look back and look at the cases but what i can see a is that even if it is embedded as a requirement it's necessary here that's why was that clan certification is necessary because otherwise the court had no jurisdiction to reach the merits that's one reason the second reason why it was necessary and i don't believe that i don't believe that that the government address this is because when the district court makes a ruling whether it's about notice of the  constitutionality statute the government consistently holds that it does not have to abide by that ruling in a district court is a non acquiescence you go to another district court even a different ruling it's not binding until you get c her declaration was that the statute was unconstitutional that then the government would abide by it simply isn't true and i don't know how the government was able to put in their brief that this is what they do when they never do it they d