ellen's good afternoon your honor may it please the court sara carroll on behalf of the federal bureau of prisons the code of nineteen pandemic has imposed extraordinary risks on the entire world there are special challenges in places where large groups of people live or work together such as nursing homes factories and warehouses pres recognizing that the st cases of the virus were detected in the united states in january yuki implemented a multi made clear that challenges to conditions of confinement are not cognizable and he is and this case falls into that category petitioners try to evade that restriction by characterizing this as a challenge to the fact of their confinement but that's simply not correct a premise of petitioners plain is that they can be confined somewhere it just has to be somewhere other than act and the relief that the district court granted is simply transfer to other facilities it will not change the fact necessary courts have to impose sort of increasingly intrusive a relief and find that something less intrusive is insufficient before they were there something more intrusive not to mention a prisoner release order which has to be imposed only by a three judge court appeal are a exempt status purpose proceedings challenging the fact or duration of confinement but again this is not such a case and brown v the supreme court's decision makes that clear in brown the court evaluated a prisoner release order the court noted that the order allowed for potential transfer of inmates to other prisons it didn't you know strictly require that inma be released from custody altogether green card nonetheless had no trouble getting that it was a prisoner release order and petitioners do not even attempt to explain why that reasoning does not apply here the district court's order is also completely on word from what happens to prisoners from that point whether there would be some form of craft or compassionate release  so so the preliminary injunction as opposed to the may th order only requires that the okee evaluate everyone from those types of things that your honor described and then transfer anyone who is not determined to be eligible for it so the only remaining obligation there is no date certain in the april nd order but we interpret the order to require that yochi transfer people who are found in eligible for the other things as quickly as possible and the district court made clear that people needed to be quarantined today so people were going to be transferred today but as i know the court is aware the supreme court issued a stay yesterday evening so as of now no transfers are well i think you are going to talk about  to the amendment as i'm sure your honor is aware requires a pretty high standard it requires deliberate indifference what the supreme court has described as the wanton infliction of pain it's not you know for example a negligence standard yorkie has been working diligently has been working tirelessly for the past few months to protect inmates i mentioned at the beginning numerous steps the yorkie has taken its relying on advice from the c d c and other authorities done campbell was campbell could i ask a question please what standard of review is required by discourse for assessing the appropriate most of the district court's decisions fair with regard to deliberate indifference well a preliminary injunction in general is reviewed for abuse of discretion but of course legal issues are reviewed de novo so i think that to the extent the questioned think you may have so continuing where i left off the district court also criticised yochi for the amount of testing that was going on at elkton at the time of the  that the congress has recognized since then in the kerry's act section twelve thousand and three that the ok did in fact have trouble procuring tests because it was competing on the market against everyone else both before and after the preliminary injunction show that yuki was studly a team in more testing capacity i think at some point it got a testing machine and maybe the machine was taken away and i don't know your honor if that's you know as you know because of the fact that  that is what i'm told the last thing in the record is a filing from i believe the middle of last week that said that you expected to have tested everybody by last friday so we could go and be ok he tells me that that hasn't approved by i think and maybe one for compassionate release they've not been able to do social justice and i'd like to lay out it's just not conducive to that and so i'm distancing st the supreme court of courts so st starting from an assumption that social distancing is not possible it helped in the supreme court emphasized in wills and the site or that any of it commandment agree has to take account of the constraints o respond to sort of a premise of your question that the data shows that things are getting significantly better adult and there was a spike of you know hospitalizations in early april but even at the time the p i was issued hospitalizations were frankly declining they've declined significantly since then i believe there have been i hospitalizations and well only one since may nd and i'm not saying that five hospitalizations is not serious of course that's a big deal and the okee is trying to prevent any hospitalizations but it does not align with the sort of catastrophic narrative that the district court and the petitioner seem to have adopted i asked for your honor nd question about use of home confinement it's true that the attorney general directed b o p to prioritize consideration of home confinement elkton and two other facilities as well as elsewhere in the country emphasized that your key needed to continue doing the careful case the civic analyses it always does under its existing factors he emphasized that b o p could not take any risk of letting someone on to home confinement if that was threatened public so he did consignment but as the record explains numerous inmates at elkton are sex offenders and black vendors are generally considered ineligible which i think is an entirely reasonable public safety determination a number of others of class members have histor to another institution which is still a reduction in the confinement in the sense that the person is no longer able to be confined within that so that is a it could be categorized as a place necessary because again we're looking at a prison that has one hundred and fifty person units where there's an open plan people are moving around freely and within that area it is undisputed the social distancing is impossible prisoners are brushing past each other they are when they're brushing their teeth or bumping elbows with each other and as we are aware from the c d c guidance from public health authorities and from experts in this case social distancing is indispensable so this brings us back to haiti is because there is no conditions change within the prison that would remedy the constitutional injury because the social distancing is absolutely indispensable and brown versus plata is entirely consistent with this this work a lot of us started as a classic conditions case the typical medical treatment or mental health treatment issue within a prison and over years of litigation over of years i'm looking at possible remedies eventually arrived at the place where this case started which is to say if there is no conditions change within the prison it would remedy the constitutional alleged in the petition and demonstrated their expert evidence and again the c d c guidelines and also attorney general bar's memorandum as social distancing is the indispensable mitch and any response to a government you know everybody has how is that considered in the realm of wantonness don't we evaluate that with regard to the constraints facing the official then the toothbrushing elbow to elbow you know that kind of thing constraint and it's a reality right it's a constraint but it is also the case that the bureau of prisons has access to a number of tools provided to it to remedy this situation and that's what the attorney general was talking about in the april rd memorandum he was dispatched to consider people for home confinement to get out to enable that social distancing so those are among the tools of their disposal so the point that was raised earlier they were using those tools we then that space between april rd when the memorandum was issued and able nd when the district court issued its injunction there were thirty eight people who were reviewed or home confinement with an elton out of approximately tw three hundred dollars at that pace it would take approximately three and a half years to complete a review for home confinement of everyone with they were not complying with the disc the instruction from the attorney general and they were  that were available to fight the outbreak within the prison so the deliberate indifference comes from the failure to test which as the district court noted was in congress with what was going on right there elsewhere in ohio where they were engaged in mass testing and the district court was and was equally mystified as to why that was the case in the in the injunction he stated why has the justice department allocated  awareness to the risks of the government so for example just looking at death rates comparatively the united states as a whole has suffered thirty two dollars deaths per one hundred thousand the population according to johns hopkins  worst rate for which they have data is the united kingdom which is nine per one hundred dollars elton had two hundred and sixty dollars or one hundred thousand the time of the district courts were so they the attorney general had instructed them to confinement they were not doing it they had testing was not being made available for reasons that were never explained and the outbreak was increasing instability with six people dead so based to remedy it so that is how we get to subjective and deliberate indifference on this record and to answer your honor's earlier question about the standard to the extent that the court is looking at that's making fast determinations that is unclear error standard seventy district court extrapolated from that record to determine based on circumstantial evidence that subject of knowledge of the risk existed and subjective knowledge that measures the half measures that they were taking were not review so i bring that to your attention because that has hours and your honor i would say that to the extent that you're extrapolating and legal conclusion out of facts that might be a legal determination title to denote or factual determination is is a question of simply knew whether there was subjective knowledge of a particular risk or particular efficacy of a countermeasure so as a submitted that remains hypotheticals of that nature so for example the possibility of you know everyone except the middle class and d in response to that we're dealing with the realities of the situation which is that there is no solution that has been proposed by the government that might possibly remedy the constitute the constitutional injury with an open and that was the allegation and there has been no information to suggest otherwise or the district court so submitted it can be an abuse of discretion to conclude based on unrebutted evidence that there is no such there is no conditions change that would remedy the situation or spending scary and i know we've sort of gone back and forth the sort of what eligible zero at that point had been actually moved ok well eligibility depends not just on whether they might be eligible but a lot of other things as well michel release played i mean the in that has to have someone to go reviewed and but the larger point of course is that the district court structure this order to understand the point your honor just raised that there is a lengthy review the needs to go on here those evaluations were happening and as counsel stated before to move people away from elfin secure the constitutional injury so that the purpose there was to simply make it is simple for b o p s possible to use its own processes while also preserving the constitutional rights of the prisoners with a not so that that is the it has been raised by the government and the context of equities the argument that the of his discretion is actually is unreviewable but in the concept in this particular context the limits on that discretion are set by the constitution the district court is simply reviewing whether the whether the exercise or failure to exercise that discretion is inconsistent with the  early on my colleague mr kerry referred to elton and sort of emphasize the fact that it's a low security facility it's true that it's low security but it's not minimum security i want to make sure that's clear nd mr kerry told the court that julie for what it's worth it involved a dispute about whether an inmate should be in a community treatment center as opposed to a prison which is pretty different from being transferred just for just one prison to another prison that's perhaps even a higher security  i also want to serve respond to mr kerry's point that this is a fact challenge to the fact of confinement because no change in conditions could remedy the violation mr kerry tried to rely on prisoners needed to be transferred and he noted that justice scalia in dissent said that this was essentially but the majority of the court treated it as a prisoner release order under the  and i think that judge givens is exactly right that the way a suit of this kind is supposed to proceed is as an here not a section one hundred and eighty three dollars claim i suppose because it's a federal government but as an e p a claim or something of that nature in which they're carefully circumscribed limits of the p l r a are applied and in which the court for example as i think judge givens also noted takes evidence on whether there are narrower forms of relief that can remedy any thinks it's of course not our burden in the government to disprove the possibility of narrower alternatives to show that the petitioner shouldn't succeed on their in amendment claim under the it's supposed to be petitioners for it and the district court's job to think about whether there are narrowly narrower remedies even assuming that there is a violation and that leads to my final point that i want to make which is that there has been no th amendment policy and directions of the attorney general are considered suppose a public safety threat such that such that you know they're released on confinement would not be appropriate and i know this doesn't refer talking about moment your honor i wish that i knew the exact number off the top of my head i really should know that i know that as mr kerry said at the time of the preliminary injunction six people have been identified as eligible for i mean it's true that they hadn't   for example the denial of toothpaste to inmates i i think it's hard to argue that it's that there are you know very significant institutional constraints that prevent a prison from giving an inmate to space that seems like something that is that can be done here that just the opposite the alternatives that petitioners are focused on seem to include things like releasing people on home confinement that you know she does not think should be on home confinement transferring people to other prisons when you know they might be traveling very far very far from their family is very few and far from their homes they might be moving to higher security institutions that they otherwise would be in they would be moving to other places potentially that are just not as well apparently there are enough we thank you for your argument and actually zakaria and carol we thank you both for your arguments this afternoon and your flexibility and presenting arguments way of video  technology seems to work quite well not always the case so it was used in the case it way the case will be submitted and we'll have a decision for you