i ask a question before we even get to that but according to the decision of the us appear your court review was going to happen no later than may twenty twenty sixteen so the action center challenge here happened in twenty fifteen years this case moot of these claims moot you are not under my understanding they are not or basically one word this is an explanation of how the new program is going to work and how people are going to have their cases heard in the order in which they were yanked validated anyway there explanation of what the new procedures are and basically they use end up saying well he hasn't really explained why he's entitled to jump to the front of the line and why that's a requirement of due process so it's come a long explanation but it seems like an actual explanation that is completely responsive to the claim why isn't there reason and not the question is whether if the council has one as we see these things coming from california it's an explanation it gives reasons and i don't understand why that isn't a reasoned person longest but have not issued an order to show cause you think that the california courts would deny or claim precludes some effect i think the california that's a yes or no question yes according to california law but in the alternative we are also arguing that even the denial itself was not reasons because contrasting other orders where the california courts are courts have found that it was claimed reclusive the word itself cited legal authority does not exist when defendants are sued in different capacities your honour's door is vs diaz is a two thousand and sixteen unpublished case from the eastern district of california that illustrates the legal distinction implicated in that has that has no precedential of fact that decision not only because it's unpublished but because it's a district court case which has no precedential value are there california cases supreme within the realm of section one thousand nine hundred three actions of course due to the federal nature of such complaints california courts do not have jurisdiction over said claims on the federal level however this is the only decision that explicitly discusses the legal distinction implicated between the capacities within the realm of claim is that a state law question or a federal law question what is your honor the question of whether the two capacities a claims preclusion to apply however the specific distinction between an individual student as official capacity of public official excuse me sued in his official capacity as opposed to individual capacity only exists within  the federal realm so while utilizing california's procedural tools appellant would like to input the federal substance of the laws  as promulgated by the supreme court of the united states and cases like versus the new york city department of social services or kentucky versus ground specifically analyzing those  distinctions between capacities and although the pentagon is aware that does not have a binding effect on this court it is the only case within the ninth circuit  they were intended to do what does the relief that he saw tell you about the capacities absolutely your honor cases like kentucky versus graham suggest that the  honor when a plaintiff is awarded punitive damages against the public official who have sued in his or her individual capacity then those damages could only be executed against individuals personal assets it cannot more recently in furnace versus for beano and those cases control here mr almeda had a remedy like the plaintiffs in gonzales and furnace mr all made that challenge the fact of his confinement in the security housing unit or correct so what difference does that make under california law there do seem to be to some at least a very old basis for you know even before i'm sworn that say that suing someone in a different capacity is not the same innocent not necessarily preclude what do we make of them scuse us well under california law there's no distinction between the capacities that's present in federal law which doesn't apply in this case and so the proper inquiry is whether the parties share a common interest with adequate representation of that interest in the first suit so that the non parties should have reasonably been expected to have been bound by a prior decision and so here do cart was named in the state hideous petition because under the california penal code section fourteen seventy seven the custodian of the petitioner must be named  judicata and again under california law the key issue is whether there was a sufficient relationship there and interests and here all of the employees were named were employed by the same agency or the order must be a certain length or discuss certain topics the pertinent inquiry is did the court decide the issue in a final decision on the merits and did they give reasoning for that decision even in  in the oral argument the panel referred to something more than a postcard denial and so here it's also important that the court look at the procedural one so what tells us in that one sentence that this is more than a postcard denial this this doesn't look like much more than the postcard denials we get from the california supreme court and he exclaims well i think you also have to look at what the court looked at before it reached that decision here mr i was all that was forward looking at the d r v program and the supreme court stated that when a federal claim has been presented to a state court and the state court has denied relief it may be presumed that the state court a jew did the juda katyn the claim on the merits in the absence of any indication of state law procedural principles to the contrary and so here it's clear from the court's order they did not deny this petition for procedural or jurisdictional reasons they examined the lengthy briefing that mr almeda submitted which was over fifty pages they instead of just deny it outright asked for an informal was response and then mr omaeda had an opportunity to file a reply with additional briefing and exhibits and so the court examined a lot of evidence when it came to its decision the actual orders in it begins all this and furnace cases were actually shorter than this  this order is considerably longer than that and then it furnace there the court and the order was approximately the same length but in that case the state court did not ask for did not issues that mr nader raised and in that the harrington case again the u s supreme court said that opinion writing practice is a practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack in federal court and so just because the order may not state all the reasons it deny british right with that but the sense that you read as originally from harrington also said that had to be consistent with state with state law and as we understand california  california requires a reasoned decision in order to have precludes of effect i was trying to figure out whether this is how we know that this is a reasoned decision rather than simply a recitation correct and i get the the reason salis and they were interpret ing state law but what's required of in state law is that there be a final judgment on the merits and so if if the whole purpose of rise to the cot is to per prevent inconsistent judgments so if the court can tell from the order that it was on the merits and there is reasoning for it it's not the petition is denied period then that is enough to find claim for clues the fact and in this case there was a lengthy briefing that was considered by the court before it reached its decision so should we consider certifying a question to the california supreme court to help us interpret what denials can be on the merits but and so i think that section gomez was enough footnote in that case and so it wasn't i understand them but i didn't really find if if because in the elements of california claim preclusion law it just must be a final judgment on the merits if you can if this court cannot tell from the order whether the judgment was on the merits from the procedural history in order then it may not have claimed for close of a fact but that's not the case here it's it's clear that the court considered the merits and did issue a reason for denying the petition and so we would argue that claim preclusion applies i see i mean it's hard it's hard to see that in that one sentence that other than the fact that the that the superior court refers to due process ri state that consequently a summary denial by commissioner would not have consequences for prisoner's ability to seek a remedy in a federal civil rights action in cases like the present one in the context in which you read that doesn't that suggest that or because it's procedurally defective and so in this case we're arguing that the first happened the petitioner which a police expressly state did not state a prima fashion case for relief and therefore the court denied it and it was a summary denial because there is no order show prize or other proceedings in