now there is an urban and others versus daniel harris and others and representing the intervenors as well yes we are interveners miller live free area yes your honor all four of our clients are disabled prisoners who are challenging the way in which the district court below terminated the decades old consent decree it was a consent decree granted on a class wide basis and it guaranteed the constitutional adequacy of medical care at the green haven facility at the point that the district court trueman a did the consent decree it violated our client's due process rights in two distinct ways the first has to do with the settlement protections that were guaranteed by the due process clause and not fallen below this is not  get gone right to the crux of this argument the parties don't dispute what the law is on rule twenty three of the due process clause which protections apply and that the absence of those protections constitute to due process violation what we dispute is what happened below in your honour's questions exactly the crux of this was it a settlement and it was this settlement appears it page two hundred eighty eight of the joint appendix and also two eighty nine when it so ordered two days later it's  terminations of the consent decree as well as a settlement that that that's correct your honor there are two main reasons why this is a settlement and they're both flip sides of the same coin the first is that this settlement which is page one of the special panics as well is presented to the court as a deal of horse trade between one side and the other plaintiffs council says we've agreed to withdraw our opposition determination based on the representation is that our expert dr chan ski will get another opportunity to go meet with the prison and that's the deal that's the first route that's such an odd deal to characterize as a settlement all they have to do that i mean there's a motion to terminate based on the statute the p l r and and all that needs to happen in order for the plaintiffs to decide to withdraw and to enter the or to agree to withdraw is that they will be a meeting some not that anyone will do anything or that if something comes out of that meeting some will follow up there's nothing about it that suggests an obligation on the part of the defendants to do anything other than show up for an hour we certainly readily agree was a meager settlement right and the reasons why are reflected in the letter from class counsel to members of the class they were concerned about their ability to prevail and they may have believed rightly or wrongly that this was the best they could do in terms of the settlement but the flip side of this settlement is that it allowed the court to terminate the consent decree without any adjudication of the merits of the dispute if you look at special panix one the court says simply accordingly there had there had already been a certificate of compliance right in there been years of auditing and the expert who been appointed had found that the prison was now in compliance with the all the terms of the consent decree that had been set up for the prison your correct that the most recent report by the medical auditor did show that but under this court's on bank decision in benjamin versus jacobson the court said that before a terminations is ordered under section three six thirty six twenty six of the p l r a the plaintiff's class must have an opportunity to develop a record and they've started down that road in fact just in january i think it was january i'm twenty six  which is to page two hundred eighty six of the joint appendix the court had set out a discovery schedule for the parties to engage in so that the plaintiff class council could discover what the facts were to make that showing that process never finished because class council and gauging the settlement instead and as a result just to finish the thought the court did not to do to sorry on the prize all members of these proceedings it significantly what the class members never knew never had a chance to know is that this settlement was present to the court on march second so worded on march fourth there was no notice of the terms this is not contested there was no notice of those terms the class members there hearing an opportunity to object and the state has most artists they didn't have noticed most of them they had no notice that's exactly right in the state until submitting their read brief in this appeal conceded that this was a settlement we cite the various  think five times they said so below and to this court on page four of a reply brief in docket one hundred nine to the second circuit and opposing the motion of the interveners to intervene the state said on page one of their opposition that this terminations was on consent of all the parties on page two that epix even page six that the plaintiffs had agreed to settle and on page eighteen that they had negotiated this terminated you could you address the standing question i think that was part i assume that happens relatively frequently in long standing consent decrees that are difficult to manage perhaps in particular in the prison context when people get released but but but what is your position about  ervin and intervenors and their standing to participate even here right let me take both of those questions quickly first on the adequate representation there's no question as to what happened below that there was no participation unbridgeable class members or any named class representatives there's consensus that that did not happen were they all gone by now they were all gone in the state says so in page forty two of their brief the question is whether there needs to be representation by a named representative at all times the supreme court has answered that question directly justice rehnquist said of course they must be there at all times in this way if you consider this is those even if it's not a settlement in the termination phase the most important phase of this litigation since the beginning adequate representation was required of the supreme court and shut said it is required at all times amendment of the complaint or some other way to have a name dropper sensitive which yes your honor what should happen upon is the court should appoint new class representatives to represent the class judge friendly said in footnote six of this super spuds case that doesn't matter how great your class council is no matter how capable there is nothing in the every circuit that's looked at a similar sits scenario where absent class members due process rights were violated without notice has held and we list these are page twenty five of a reply brief that they have standing under rule sixty before to bring this state forgive me underlying litigation appellants never participated in district court proceedings despite receiving notice you let me interrupt for just a second i've had a little difficulty with this because of the you know the length of the duration of the time in which the consent decree was in place and  the state consider that upon the release of the individual's right name plaintiffs that he could have just proceeded to ignore the consent decree no i had the state complied with the consent to korea as reflected but there were no more named plaintiffs right they were just people like mr irvan who were covered by the korean which was to be represented by the decree and by class counsel did he need to what did he need to do in order to become not absent did he need to move to intervene or participate in some way or if he didn't really have an opportunity to object here later right well if you look through the first fifty pages of the appendix which show the history of this litigation since hundred seventy nine you'll see that it largely reflects pro se filings for motions to intervene motions for contempt for noncompliance if you just moved at any point to intervene or to call to the court's attention some episode of noncompliance that would have given him standing here it would given him i it depends on the circumstance he would have a better argument but the fact that he did nothing  means that he doesn't fall in line with the cases that have allowed sixty be relieved to be before the petitioners and now realize that it was void for lack of due process well the language party or legal representative is in the umbrella language of rule sixty be so it applies to all of the various subsection so the for lack of a better word standing  any different under rule sixty before than it would be under any other subsection and they have it's not as if the palin's are without any relief or any complaints they have about medical care a green haven they can file a new lawsuit they could even request that the corps implement the millburn consent decree as a relief in their new lawsuit but what they can't do is procedural history of what happened and before the rule sixty before argument had been raised for the first time we used that phrase to describe that this was a litigation that was fought vigorously at arm's length for decades with class counsel very vigorously representing the interests of the detainees and so as to emphasize the point in a cloak all sense that even when class counsel  had conducted all this discovery had no basis to oppose terminations they didn't they got us to agree to meet and consider and additional reforms and  they didn't get it is any there's no settlement written agreement executed by both parties there's no there's no release of claims that would typically happen in a settlement agreement so the class members are now balanced by any release and a settlement agreement so that that's why we used the phrase a cloak all sense but not in the sense of what one traditionally thinks he's a rule twenty three eclipse action settlement which would  irvin's rule sixty b motion and in all three of those documents the court references that plaintiffs withdrew their opposition and the court granted the termination motion and it does not say anything about a settlement or approving a settlement that's binding on the class members we can just talk a little bit about also how the prison litigation reform act fits into this and that that goes to the point about the settlement is that it's sort of an unusual posture and unusual motion because once the state files it one the rule twenty three would dictate that the court should consider the fairness factors before implementing the settlement but that didn't happen you would but you just hypothetical that representation all of that was complied with for the for the reasons we've described but there's no dispute it's in the docket there was not a fairness hearing or ruling on the grinnell factors  the court also doesn't need to reach that issue because of the threshold standing issue under rule sixty b which also why can't mr irvine as a not party emphasize the sort of extremely the limited scenarios in none of those cases the main factors that we've talked about about notice an opportunity to be heard here that the  aware of determination proceeding that was going on and problems were not well legibly that's their claim that they were not notified of the terminations settlement whatever well they they acknowledge in their reply brief that they received a letter shortly after the terminations motion was filed and it was terminated well there's two letters there's one when the terminations motion was filed before so about seven months before the court ordered the terminations so they received that letter which informed them that class council did not intend to oppose terminations for almost all of the judgment with respect to two limited provisions they didn't have any basis to do so but they would conduct an adverse ruling by the court what that referred to well if they had contested determination motion then the court rather than the order that it entered would have entered in order with findings of fact and conclusions of law and if it had found that certain practices were not systemic eighth amendment constitutional violations and that would have bounced the entire class in future litigation if they sought to bring a pro se nine hundred eighty indeed that what you're right and why doesn't m get the benefit of the dunlop and grace holdings and be treated as a representative because he was he had an opportunity unlike in grace and dunlop he had an opportunity to have his say during the seven months that the terminations motion was pending and because he has a more limited in grayson dunlop the court also emphasized the limited scope of relief sought the one involving pan am the court just sought to modify the judgment to be clear that it was only saying what it legally could say in the first place here irvin says seeks to upset a judgment that's been being relied on by a large number of parties what it's saying though is that sums of the specific elements of the consent decree that protected health that kind of medical access to medical care of the physically disabled were december disassembled after the consent decree was terminated can immediately after and to the protections they had in place you know access to nurses and emergency buttons and the unit itself were taken apart and i take it that the state hasn't been in a position to have to agree or refute those factual allegations but it's troubling to me to see those allegations in this context you know soon as the merits brief on appeal sort of the underlying substance of their complaints was not discussed and so the state did not respond and address in the district court below the district court considered the arguments and concluded that the arguments amounted more to a changes in location as to where medical care was provided and that those were not extraordinary circumstances  under six b six but that that argument you know wasn't directly raised here on appeal obviously if they filed a lawsuit challenging the changes as eighth amendment the on the first go around right right and then they they could but they would sort of be in the same position where they would have to demonstrate you know nathan i'm in violation pretty pretty much in a similar posture i see that my time is up thank you we'll hear from mr feldman some time for your honour's first actual correction the inmates did not learn at any point in time before march second that the class council was not going to oppose for seven months period mr ruef just told us about if you look at the record join appendix three forty two three forty five what what they find and this is before the court grants the request for discovery which happens the following january writes a discovery hasn't started yet they haven't had the opportunity to build the record we're back in august and in august class council says in the letter that no final decision this is on page three forty four has been made excuse me on the let's say a letter from the legal it's less that's correct and they will make an informed decision after all the facts are in which have not even happened yet because the discovery order comes the following january so they did not have notice at any point in time the class counsel had made a decision to withdraw their opposition and that's why you think that mr ridge should get the benefit of the dunlop ungraceful things because he was affected by this and had no notice that's right this case is easier than grace and grace they were truly non parties the supreme court in devlin has said has rejected the formalistic approach to party for class members that the state proffers and said whether a non named class members a party or not will depend on context that's what justice ginsburg says in the devil and decision here they're affected as parties and they should be parties under the rule and it and that's how other circuits have treated that's it in your honour's decision and  concern with due process violations quote unquote upon quote absent parties well that's exactly what happened here it's right on point with with their circumstances here could you could you clarify one thing for me please i understood because there was a timing challenge also i understood that mr ervin to he was complaining that the state waited until after the year had run to start to disassemble the unit so these things couldn't have been pled at the time even had he had adequate notice is that correct that's correct and that's in the record as well yes your honor if i may make one more point the state overstates rule twenty three in due process rule on what is a settlement the line is between what rule twenty three calls a settlement a compromise or a voluntary dismissal that's what happened the other side of the line is an adjudication on the merits right representatives were required at all times settlement or not this was a critical phase of this class action the termination phase and there was no class representative overseeing class council let me just make that a practical point here if the class council had gone to any member who was incarcerated and pointed as a class representative and said we intend to withdraw i strongly suspect they would have taken a decision they would have disagreed with class council they still felt the medical care was  inadequate and it would have been raised to the district court who has a fiduciary duty to make sure the settlement is in the books that city to make sure the class representative is looking out for the best interest of all the class members that's what would have happened if a class representative had been in place during the termination phase settlement or not the critical decision to not oppose is a decision that would have been overseen by a class representative and as judge friendly said again or from august twenty four insufficient insufficient because the it was not to a class representative was to class members judge judge justice rehnquist goes on for about two pages and shots about how class members themselves if they're not named have every right to sit back and rely on the protections provided by rule twenty six twenty three a that the court and then named class representatives will look out for their interests they have no obligation to do anything until they're invited forward to the court to object to a settlement or to opt out in the case involving an opt out right of the proper procedure should have been in your view to find another person willing to be the class consideration of the settlement or terminations precisely but but to your point either of those are sufficient independent grounds for a due process violation and both of them give rise to standing party standing under rule