i would like a judge to consent and i have talked about it judge dennis is our third judge and he is presiding over our conference when this is over with he will not be able to be present today but he will be participating fully electronically punch maybe right below the light and speak clearly distinctly into the microphone i would like to get to have tickets who are going to argue today both to come up right now be behind the microphone oh we have some questions at the panel wants to pose before you get going more be counted against your time but please come up to both of you to the first thing i want to raise you are your legal adversaries but i hope personal acquaintances and friends so i move back and forth as we're speaking to being behind the microphone as of now february ninth i think it's the date of the briefing schedule you were initially sent forty days for the first briefing the rest follows that makes the final briefing due on may seventh and the earliest this could be a set for an oral argument is the june secondly i'm not asking for argument right now you have your twenty minutes but some of the status issues indicated that they have taken substantial steps toward satisfying the sorts of concerns of the district judge hadn't playe set probably without having the knowledge myself with the help of the district courts and pending orders in pinning at the time and so it seems to me from looking at the breeze and the arguments that a fair amount of work has been done is difficult for us and would be for the merits of panel to know how much has actually occurred how consistent it is with what the district court ordered all how much is left to do is there any way that the parties can get together and try to narrow this for us now i do understand it's a much different point of view about what the state has accomplished from the two different sides so i hope this is not  the exercise we have a mediator for the for the circuit to deal with all sorts of situations vic chan hook john hawks who could help sort of narrow this more for the marriage battle than for us because we will rule for all that can be done is there is to talk from the plane decide first because you're the ones who might have the argument that nothing really of worth while has been done hoping not quite taking that position i'll hear is there any utility to the exercise of trying to get the two sides to to really determine how they're all the mandates of the district judge injunction master to a mediator and so that we have had it i would not get into the details of that we have had a mediation last fall and i don't want to raise the court's expectation that's for meaning four months ago or five months ago but we're certainly prepared to participate in something that we would like to learn more i'm sure the district judge would what is well whether we get everything result it's we've we've tried i don't know what we will but it's certainly wor trying your honor the state is willing to meet we've done so the british were happy to do so again i would say to your point about not getting into the details of the argument or the main issues in the case i'm sure you're aware as the case loads of issues and you pointed out that in the last several years case loads have fallen below what plaintiffs an expert called the best practice and this was not enough for the district court and so we feel that the better what we do no matter what the legislature is going to come up with it's not going to satisfy the among ourselves we'll see you but i want to see what initial response i did cut you off it was something further that you wanted and i really wanted to say of course we are willing and happy to meet it any time it's just that trying to get a lot of things done here in terms of out finally and this may be more for the argument but if you give us an early sort of status point plan a first plaintiff's first right now there's a stay of it all when we look into it and there will be questions about this when we look at what we should do now going up until the marriage that gets the case and then they will be up to them on what to do the critical to you that that really do need to go into to affect the immediate once the three months ones six months are really not our concern and that would be for a later panel is it possible  for and mediation might be part of that to sort of the all that to come up with the lives that may be challenged as a way that's already been accomplished by the state but can you state say here or is it a fairly lengthy response which ones in your mind if we were going to leave a stay in place we should not have this day effect these yesterday we certainly can therefore air four key areas that were as on behalf of the children who are most concerned about one is case really affects the entire management of the foster care system caseworkers are critical to the children that as the state is told just told the court the state's statistics say their case those are going down we seem to have the same objective which is to get him down to a manageable number we have a very different view of how they're doing it second the placement array is something that's very very important that is in particular one of the places foster  and then license monitoring in licensing including investigations and one of the key things that we have found in this case has uncovered is the state's investigations are incredibly inaccurate maybe three quarters of them are wrong and this and without going into more detail those those areas are the key areas for us one area that for example your honor could wait and i think the court's order contemplates that way is the new unified computer system records initial order on that is a plan so that system doesn't have to be in place in three months but what the course is said is initially we want the court has directed the state to come up with a plan we think the plan would be a good investment of time but actually implementing the computer system that's down the road kerry your are starting with the plan the council just mentioned that is probably number one on the list if you guess i'm system from the states perspective even though the actual system is not being required to be operative until a year after the date just the the having to do all the planning all the work i mean i don't know whether it would even feasible at all if we spent all the money in the world to get the thing up and running and year from now and so that's probably number one of the list too of state to state and to make clear that we're not going to you know it's one of those things that it can't be the case that we are allowed to overstate from having to start working on it and then we find out shortly before hand that all the sudden it's due because it will be impossible if we have to devote the resources both human capital and physical capital to to be working on that that's resources that have to come out from from somewhere else all right so that's number one or the other things just a couple dimension would be the foster group homes from our perspective those are a very valuable place but source and if we have to remove children yank them out of those existing places that's going to be a harm to those children are not trying to use it as an additional argument and you're beginning to understand that but to then you see that as a problem you can stay at the podium and the other have you seen thank you very much for your willingness to give us a heads up on all that plaintiff's expert testimony was woefully unreliable district court struck their class wideness expert who was the primary data source for the other experts and the demonstrably a typical experience of the twelve handpicked nameplate is were no substitute the random representative sample of case histories that plainest promised but ultimately failed to analyze as a first look at recognized encounter be showing that a select handful of children had bad experiences in foster care is not enough to show class wide constitutional violations but this argument you're making as to a failure of proof below after the trial you accept that our review would be for clear air or do you have a case that stands different we think the name plaintiffs themselves what we're challenging are the district courts extrapolations from those determinations about the name plaintiffs and we think that is not the kind of historical fact finding that is reviewed for clear as in that's moment what are your arguments and the brief as to this issue is that the usual way to have this sort of typical cross section is to have a randomly selected sample i think it what you call that but maybe know literature and case law as a certain way this sample is usually done and that wasn't done in this case is your argument isn't that still though a factual determination by the district court twelve kids you are to be clear we are not saying that was absolutely the only way they possibly could have proved their case that is what they told the district court that tell that they were going to prove their case we provided them the representative sample they requested it they started the analysis and they claim that they stopped it because it was just too much of a burden to do it whether that's true or whether the analysis simply didn't support their findings we don't know but one thing we know they can't do is hand pick a small group of plaintiffs and then how do we know how he was chosen how do we know they were hand picked but please don't dispute that your honor those lives were not random which is children they were they were picked specifically because their stories are so tragic i difficulty i mean just looking at our law put aside connor b  it seemed to me especially in ruiz which is that the single case the parties sort of all coincide with on stay authority we were pretty clear that it was proper that's the word that we used to infer from a small number to a lot of prisoners and  the issue of statistical studies came up and the court said those are inconclusive but yet there was no error that we found in the district court's inferences and again it's we're not saying it's improper to infer from a small group  to a larger group and indeed if they could have done it in this case with a representative sample but if you if you can pick a cherry pick a small group it's not representative right but there were ten experts and there were twenty eight witnesses and that with the witnesses included people i'm sure you know the record more nine to carpenter ms carpenter yes she said fifty percent of the texas kids she saw had been sexually abused fifty percent and that was one hundred eighty or one hundred fifty that she'd seen and then m richter said quote almost all of one hundred fifty had been sexually abuse well i think it's and we have to go through each one of those and say it was clear error to infer from those much more substantial numbers i think one problem with the testimony are as it's unclear in the record those witnesses did say lots of witnesses settle a lot of kids in foster care have been sexually abused what's not clear is whether they are saying they were sexually abused during their time in the  and again we're taking extrapolating from a small thing this is just a lot of data the district court credit so i think my reading of ball the litigation ruiz even connor b is for us to overturn it and conner be the first circuit said affirm the district court's factual findings and what did that factual finding include the first circuit said we agree in this study shows ninety eight percent not hurt but here we have testimony credited by the district court that says forty nine fifty almost all and here's the problem with that your honor what can't what carby looked at in that case were the see if a source of children family service reviews from the children's bureau and it looked at how massachusetts was performing terribly consistently in the bottom just solid yes they said but nonetheless they're still protecting ninety nine percent of the kids in their care here texas scored much much better on this if the stars in the district court said well never mind that you don't need to look at the objective data we've got these twelve and pick children and so this gets back to the question of the standard of review what it is clearly erroneous for this record to draw that conclusion with the objective data showing something else and even for example the district court noted that children p m c average four point five placement moves during their time or four point five placements and just looking at the the name plaintiffs as recited as their histories were cited by the district court they all had many times that number there were some with twenty five fifty two or more places it's obvious on the face that those are not typical right but but common to all the kids twelve thousand would be deficiencies in the computer system the don't  or or caseworker load that wouldn't be specific to twelve those reforms the sadistic words focusing on so it was a computer system your honor not a single witness at trial testified the children were risk of harm from the computer system the district courts mean the court may have said obvious but it isn't isn't it obvious that if the computer system doesn't indicate to caseworkers whether the house the child being put in has a child that has previously been a sex offender there doesn't need to be much data to support that concerns of the computer doesn't indicate that the workers well this is the problem that you're out of the district court threw the conclusion about the computer system based on the case files of the name plaintiffs which are incredibly a typical and representative of the detriment you have it is claimed in loosely casey both of those were class actions there was no certification challenge the challenge was on appeal there was a failure to show systemwide injuries and therefore systemwide injunctive relief was inappropriate that's the argument we're making here and it's not enough to say foster child in texas has a zero point five nine percent chance per year of being abused or neglected which he complained made texas foster children only fifty eight percent safer than children in the general population there was no witness who could testify that that is a substantial risk of serious harm that's why they had to change the standards from substantial risk of serious harm but the district court embraces hernandez and does say in other words what i have found is a  another way this is how to distribute it and what we're saying is if the district court had simply been following the standards it laid out by this court in hernandez it wouldn't have had to say put it another way because what the courts doing there really is conflating the right to personal security and reasonably safe living conditions as the quarter to the way that in hernandez but then you've got the liability standard required under the fourteenth amendment deliberate indifference to a substantial risk of serious harm and that's what the court doesn't really grapple with with this unreasonable risk of harm standard well ok and the problem with that is any court clearly said it has to be the same standard for death row inmates as it is for children that haven't been convicted of anything were taken out of family and end up in a family where they're going to be as any circuit think has suggested the other way although the courts that looked at it to my knowledge of basically said it doesn't matter because all of these are trying to arrive at the same and this was a conscious said at least it said it was applying the shock the conscience did right and it applied both standards sort at the end of the day it's got to be only the most egregious official conduct is arbitrary in the constitutional sense and what plaintiffs are complaining about here really are there policy complaints they're saying we would prefer that you do this policy this policy is a best practice and we think this would be better that's not what the constitution requires and that is not conscience shocking and is not are don't think they're saying we think the constitution requires a cap or a ratio or a computer they're saying the constitution requires no substantial risk of serious harm and those are the destroyer found those elements without those elements we have that risk and how can they say there's a substantial risk of serious harm when there are three main zeller was struck he was the only one who claims experts who even tried to put a number it makes these are these are evidentiary arguments this is sufficiency of proof in the district court was the fact finder and we obviously we have to go through it all but if this is the substantially likely to succeed argument i understand you understand but now on that point you brief that as your first from the obligation was substantially likely to succeed but i think i'm right in stay motion you found the district court you cited a slightly softer standard which is a  case which on the assumption that the bit you follow me on the assumption that the balance of equities would weigh in favor of texas you might not have to get to substantially likely to succeed i may be speaking confusedly but can you make sense of that what standard on the first prong just texas urge that we have to fight to grant us that we just have to make a substantial showing that we're likely to succeed we don't actually have to prove that we're going to succeed is this likely a success that's your understanding yes all right again it's not it's not more likely than not it is we have made a substantial showing it is not like we will have to decide what the standard isn't and a lot of things are judging us and may be referring to is that we have some cases including a recent case out in mississippi can you inform us how the balance of equities would weigh strongly in your favor if the can you are we're talking about a takeover of the texas foster care system based on findings that for example dr carter system he was the linchpin to the district callee an extrapolation he knew nothing about the p m c he thought there were three hundred children in the twelve thousand child p m c the district court invited dr miller but she couldn't testify about where the constitutional level for her for case  to the district court said forget about the twenty five just tell me what you think is appropriate and in terms of the balance of the equities the plaintiffs are claiming now they're going to be irreparably harmed if the state is allowed to to challenge these findings  before on appeal yet at the same time the district court has been sitting on this case since twenty fourteen plaintiffs never once move for plimer relief of any kind in this lawsuit the district court after finding these constitutional violations in twenty fifteen the district court didn't enter any significant injunctive relief the only injunctive relief in ordered was the twenty four hour supervision foster group homes and so we can contend that the notion that the plaintiffs are not to be imminently harmed is beli discussion we're having with you at the podium it is hard to assess balance of equities when very little briefing has been given to us about the impact of the twenty seventeen legislation and so to make it difficult i think that leads to difficult questions to both sides but to you it would be you say these are unfunded mandates but in the district court you told the district court the legislation was close to a billion more dollars how would we be able to say this is an unfunded mandate any of these granular things that it's ordered hiring more caseworkers if your representation is that the system now is had almost a billion dollars put into it well that the legislature to be clear was very generous in this last session and funded a number of specific initiatives funded  higher pay for caseworkers and more caseworkers positions which we both agree that's a good thing but the legislature didn't fund was the tens of millions of dollars that have a new computer system is going to cost that's not needed when if you look at page one hundred one o document you gave in your objections off improvement plan the second item is you're going to do a computer system it's not the computer system that the district wants and that's a big difference or in other words this is this is the classic problem of we know there are some issues with our system we don't think they they rise to the level of constitutional violations but we're working on them in good faith but it's a very different thing for a district court to come in and say i'm going to take over the foster care system and have monitors running things that's it's just an impact to you is difficult i know it's quick briefing but we did expand the work out i mean it's three pages on a reparable hard to texas it doesn't really tell us out of one hundred points of injunctive relief which one causes the irreparable harm and how i understand the concern you are all like i would very quickly say this i think it's undisputed that the compliance costs for this injunction are going to be unmasked certainly even if you're right in your representation that you're already down to eighteen a case with loads of eighteen yes eighteen and a half and the reason for that is this your honor it's a did there's a big difference between having an average caseload of eighteen and a half and having a hard cap at seventeen particularly when the district another problem with that is that the district court has order eliminate these other secondary workers like the i c u workers and the placement workers that are vital to the way we think makes sense to work in texas texas is a very it's a very sprawling state and it makes a lot of sense if children are removed from their their home community and have to go to specialized treatment somewhere across the state it makes perfect sense that he's being generous to make some of two last questions one factual one legal on the balance of equities factually what relevance does the earlier stage denial as to the twenty four hour supervision have to our assessment just to balance of equities if we said there that if we wouldn't stay the twenty four hour supervision balance of equities doesn't require it is that a dollar a significant prior ruling i don't think it's significant at all  of the reason that the court interpreted that injunction we were arguing that for a much broader interpretation because it was a a steps all unsafe placements injunction in the court said no no we're going to read that very narrowly it we're going to read that just as requiring the twenty four hour supervision and so that was the only issue before the court we complied with that complaint we fully complied with that injunction alas it is just a purely legal one in their opposition you will have seen they cited texas versus united states and a stark statement that at  a moment federalism concerns are not relevant in the balance of equities those who be relevant to the merits pam do you remember that quote and you have a thought about it i do remember the quote and what i would say is to be i expect you may get extra time to bring our concern and your army of police court after seven years of litigation that proved the texas foster care system to be broken  crisis the state presents a motion to this court as essentially asks what's the rush three reasons respectfully we submit why this court to be my first question to you what is the rush here's the answer dying in state care second i mean interrupt you on that because you're going to you're good enough to remember all three status quo is dangerous but when i look at your opposition where i get to the really dickens sony and injuries you're pulling in post trial statements were added whitman are saying please give us more money and then texas does give a lot more money which makes me wonder how can they be delivered in different if they are getting close to a billion dollars to the problem maybe thanks to your litigation so several things your honor the first in the gates case which is the classification case that was decided just last year the same issue came up about the state it was again the state of texas saying we have made changes that eliminate class wide class wide harm and in that case the this court said and it was a heat mitigation prison reform case this court said it is not enough to make changes to some plaintiffs when the policies that apply to all plaintiffs are the same so in this situation the judge and the policies that the state has applied are all the same the fact the state is now trying to make some post order some post injunction or knows  rely on statements they made to prove the constitutional injury or do we have to cross out all those statements what's the case that says that we could rely on that to affirm the liability finding two years ago james and i we have that i believe we cited a case in our in our in and i don't have data points to agree there is there is a click case to say post post order statements by the defendant now here why that why those statements are relevant in particular is the state now knows exactly what is concerning the district court and the state unlike what the state a saint in the court which is there is no constitutional deprivation the children are fine our system is good outside to the legislature for example defendant and commissioner current commissioner whitman is saying the system is in crisis this was in october twenty sixth seen quote this is a problem that's been going on for three decades ok we do have this cause your time's ticking go to second the reforms are not irreparable to the state in this case hiring caseworkers today for example just like are in prison guards and ruiz hiring his workers today can be undone in twelve months if we don't believe they will but if the state were to prevail that those case workers are not constitutionally required and they can be let go or they can leave through attrition or normal retirements in the meantime however those extra caseworkers will allow this system to keep the children safe as governor abbott said in a year ago january twenty seventeen we need more workers to quit school quote we need more workers to safeguard our children we respectfully would submit that steps taken to ensure child safety are never wasted and thirdly the clock is result in a lifetime of pain every day texas labels new children new boys and girls as permanent foster children and every day forster teens approach the prospect the daunting prospect of aging out but the final order sets out are commonsense reforms that can mean that there would be one former for less for one less for former foster student foster youth on the streets one less recruited into sex trafficking one less who has her own child destined to go into state custody when you balance the equities here of the state who has told the district judge we have a billion more dollars by relief by relief we did that in yes so just to give you some of the hardest ones how possibly could the fourteenth amendment require a state to pay for driver's ed how does that in any way fit to the constitutional injury and i'm not saying that sarcastically i just think it's the hardest one for you but then we have to work backwards to do our job i hear you i hear you just said i think you framed this very well in at and in questions earlier today the district court did not find that the lack of driver's ed was a constitutional deprivation the district court found a system that was broken at that deprived that that put every child every permanent foster child in the system at a substantial risk of serious harm to remedy that the district court went through a very careful and deliberate process of calling on outside expertise in order to find the best remedies chill one of the aspects that the district that the trial focused on were how these children depart from the state's custody when they age out at age eighteen and what the evidence and this carpenter is that as you just chickens of pointed out she deals with these children that age out and what the evidence is is the child and coming out of this system far worse than they go into the system and one aspect of that is they are completely unprepared for adult life now is there any constitutional right to a driver's license we're not suggesting that but will it allow  remedy for the injuries for the constitutional injuries that this district court has found that these children get something as simple as training on how to be adults of epic so that again if we have to like t law that we've got as the prison reform law and also as you know i was on the recent ball decision as it is granular we so you're right maybe higher but don't build a prison so what i guess shifting to the first prong what they pointed out is you look if we look at the supreme court lewis decision we look at the first circuit connor b decision the seventh circuit language in that cage versus morgan we've got a lot of circuit and supreme court law saying you can't interfere at a micro managing level and then i don't think i think we found a single circuit in the foster care system where you do have this sort of attenuated foster families geography demographic issues the one we've got is the first circuit that says no so where is the likelihood of success that the fifth circuit is going to say this level of overhaul which was our word is justified do substantive due process reform let me contrast this to connor be in the first circuit and this court well knows that the merits panel in this case is going to be judging this not to substitute their exact finding just decision making for the district court but on clear air and in connor b what this what the first circuit did was not to substitute its findings for the district court but to find whether it was clearly erroneous and in that case the district court in massachusetts said it found a state operating in good faith with an improving system that almost never heart heard has very very low harm to the class to the children to foster children in this case in contrast the district court found that the state of texas for decades has known that it has problems with hugely overburdened caseworkers and in fact what it is and what the this report found in this case is the  district judge found was safe was acting in good faith and was improving we and the parents panel and in this circuit is going to be dealing with a system that the district court found exactly the opposite that there was conscious indifference that there was a decision at some point not to learn more about the abuse and harm that was going on the system one example this ystem unique to this to the country doesn't track child on child abuse can we imagine and  statistics as showing that they're in such good standing nationally when those statistics don't even include child on child abuse in addition the investigations that this in this came at this was shocking to the district judge obviously when a report of abuse comes in the state is obligated to investigate what the district court found in this case is they took a small sample they found they took two samples they did an internal audit and the error rate on the investigations of abuse these are children being harmed by caretakers was sixty five percent in one internal audit seventy five percent the other what's worse is when the state found this out the state chose to do nothing about that those two findings seventy five percent and sixty five percent error rates in that sample went to the commissioner of the department but the commissioner and the department never told the advisory council the governing council for the for the f never told the public never told the federal government you didn't tell the children of the occasional beckett's you towards the subject of problem deliberate indifference that's that's objective that's a subjective yes it's absolutely obscene we speak to their central thrust which is that it was clear error to extrapolate from twelve name plaintiffs to twelve thousand and that's justice scalia's remarks and lewis and there is a strong argument that that is problematic that there would certainly be a strong argument a case if in in a trial well for setting a point of class tried to prove class white harm with simply anecdotal evidence this is far from this case we had i believe we had thirty six witnesses a trial fifteen of them were from the department from the defendant d f yes the top fifteen from the commissioner from the commissioner of the department all the way down top fifteen testify in this case study after study that the state commissioned itself was in this case decades earlier talking about problems the same problems that the district court was looking at in two thousand and fourteen when we had the trial expert witnesses came out fact witnesses eyewitnesses to the system dr carter for example we've heard  state call these plaintiffs as is cherry picked dr carter if a respected psychologist who deals with children generally and foster children generally his testimony is thousands of foster children he examined these name and he said there were this is in there and in the record he said they were typical of the children in foster care that he he deals with so it wasn't just a small group of hand picked plaintiffs it was systemic because what was most damaging to the plane took to the state in this case were their own internal studies of what's wrong with the system and judging him to get back to your prior point that is going today after the trial that is why the executives of the state the governor the the current commissioner of the d f t yes that is where they're now saying that this system is in crisis occurred according to current commissioner whitman he said we are outnumbered by abuse and neglect and so again when use when you keep jumping to statements made post trial and then you even use the legislation from last spring to say how could they be irreparably harm say what they actually accomplished a great deal so how can they be saying irreparable harm one thing they have now taken so you know is lots more money now the problem is lots more money is not going to fix the issues that that the district judge found their policies their policies that are not practiced as the discourse found again and again which of course how can the state complain of irreparable harm if the district court simply tells the state to follow its own policy their policy is not being practice there are fundamental structural problems the placement a right where these facilities are for these children around the state is a top down decision it's a policy decision by the top by the executive running the child welfare system  also a problem with that of seems to me very much goes into something that was said in conor b this is this is this would sort of intervention i want to say intrusion or whatever posen council said interest rates russia care system is serious practical problems the best efforts will not achieve the proper results so what do you say to them to that reaction is one thing to say that it is beneficial to the kids unless that's where the abuse was to be close to their families to be placed but that is an enormous difficulty that takes the citizens of texas not the voters and whatever but people willing to be foster parent and they can't do a lot about that all to make it as attractive as possible to things that sound like one this is not an issue simply of having more foster parents every state state of texas included has ready options to attract more foster parents through better recruiting better incentives but the problem here is not just more foster family homes those are the smallest facilities the problem is also in the larger facilities the group facilities where children with more specialized needs have special care and those facilities it's not a matter of recruiting parents foster parent here and there it's a matter of where do you put these facilities and what the state has done by largely privatizing and it is even privatizing at least its in house protests even more than largely privatizing the system and then leaving and up to the private providers to pick where they want to locate has created a system where instead of going to locate geographically in some sort of a balanced way so children are somewhere close to their home communities these facilities especially the ones for the then the children most needs are clustered around the big cities houston in particular and so so just the first it's not just foster family peers and there's lots of ways of getting more of those so the the the the that that that could eventually lead to twenty three problems which existed severely in this case before it so do you have a i know that's not being pressed by texas now what do you have a what would be the best r twenty three class case you'd cite if the issue were before well what we did was we followed this court's ruling in indy versus perry this court said that you can't have a super class so what we did is we have a general classes simply focuses on case laws and we have to subclasses that are very specific one is just done for the group homes and one is on licensed foster care which is on the placement and monitoring of licensing so what we did we believe we use to this court's decision earlier decision as a roadmap if i could go back to one could touch on one thing before we finish i think that what the state's biggest problem here is they have not spent any time in this court trying to prove a rubber ba they simply come in and wave their hands and say there's lots of change you're so it must be very expensive what the state hasn't done is quantify in any way whether this expense is going to be anything different than what they've already been allocated by the state the district court in her final order said the state has represented they have a billion dollars more none of the reforms that are in the final order has the state ever proven or even tried to prove to the district court could not be a common accommodated by the billion dollars after that the legislature gave it may just be the professionalism of you tube but it is a case that throughout having looked at it it seems like there could be a huge amount of common ground they were fought hard texas fought hard to get a lot of money they did just get it all that and today it's the order that in large part we're being obligated to go through so i know there been other concerns the court has expressed them sharply about texas not cooperating  but it's still it's not a case that i see as politically divisive it's a case where there could be a great deal of narrowing i think there's lots of common ground i think there was a mention earlier of federalism i think there are  very strong overtones of that and i think the children of the victim are ponds in the middle of that because what i think that reform will do these practical common sense reforms is not just make it a better system that will protect the children today but it will save the state money as the court may have seen and this is in the appendix this is in the record before you children that are aging out of foster care cost the state tremendous amount of money because according to commissioner whitman twenty seven percent of the children aging out of this system but if the fourteenth a member acquires sort of an overhaul microscopically even for the district would say no more i c u workers and i know there's logic to that but it is saying no more of these people which seems a little counterintuitive why wouldn't the logic then be ok each public defender's office you have four hundred clients you're representing that's a forty the member violation if we sake caps qualify there are lots of areas of law where people would be running into federal this is an area where the state has taken upon itself a special relationship because it has taken into custody innocent children this is these are not inmates these are not even pretrial detainees these are not meant persons that are that with mental illnesses that have been confined institutionalized these are innocent children they've taken them into their custody there's no court that we have seen at the circuit court level that is said the same standard both of simply personal security and reasonably safe living conditions applies to children the courts have kind of the answer around it they've been able to make their decisions are cases is almost it is entirely based on essentially personal security and reasonably safe living conditions because all of these issues relate to the well being and safety of these children had to endure into this very significant area of the state was sponsibility is there are so many obligations of the state and so many difficulties for the state to deal with  some of its financial out of each other was the particular focus for me at least and some opening comments to the two of you and to both sides not just the two of you individually if there is a way for less of this to require federal court intervention and more of it to be done by an understanding of what they have a of done and are trying to achieve without the mandate of a federal court i think that is best all around but we will see how that plays out itself look if i can make one last comment that without overextending my time the court is certainly familiar with brown versus plaza that came out just a few years ago by the u s supreme court on fornia prison reform and it was overcrowding and so there was a dramatic decision that came out of california to to cap the prison population and what the supreme court did of an in affirming that that injunction capping is a very significant thing capping it but the supr did was to say emphasize more than once that there's nothing that stops a state from trying other ways of accomplishing the same result which was to deal with the ills of overcrowding and there's nothing then with change circumstances that would stop the state from going to the district judge and saying the cap is no longer warranted the cap on the prison populations and the same is true here if the state the district court we believe very commendably invited the state of texas over and over again to participate in the remedy phase help us craft the best remedies so we don't end up either becoming too blunt or too granulated and that still exists and if the state were to come in the help and in propose something better for example they have their own idea of a computer system of the state were to go to the district judge and say this is a better way of doing it it's more efficient for us it works better it may even save us money it has every right to do that and the district rule rule eight language which again after had had the exact language of the rule been applied or perhaps if we do apply it as it reads in fact what you've just said about the state district courts flexibility would exist if it decided the pending stay motion before it they could come in and say hey a lot of this we've already done it's just we haven't been communicating very well but we can really narrow this down like the question therefore is did you think at all about the language of rule eight when simultaneous motions were filed it happened relatively quickly i think they were both filed on the same day and the court granted the ministry this court granted the ministry of the same day ok i will say on that saying oh moving children out of foster group homes these certain foster group homes that they've had two years notice we're going to be closed is going to be disruptive for the children and for that reason we shouldn't have to do it well the last time they tr i guess my only point to southwick was in their briefing on this day they bring the same motion the same issue up again for sure group homes with twenty four here and they're now saying only fix all the problems even though the district judge has found that they have been six the problems that these are still dangerous and that they should be closed and parents at a cli i would add as dissidents and you may have seen as well the state legislature as of september first of last year has told the department no more foster group homes so we would submit that it can't possibly argue irreparable harm in wanting to keep children in a placement that the district court has found to be dangerous and that the legislature has told the department you may not license any more of these homes court statements and i would cite the court to language in its second deepwater horizon opinion where the court said quote under the settled law of this circuit an appellate court may not consider facts which were not before the district court at the time of the challenge ruling that's from seven thirty nine third at eight o five and that applies not only to these various out of court statements that plane of several angles but also all of these post trial studies that were supposed to be in furtherance of coming up with remedial plan but that in retrospect now the plaintiffs are trying to use to bolster belatedly the district court's liability release which were special master yes not the expert work and studies given the trial well the to be clear of the two groups of experts you're not talking about the trial there were experts also retained by the special masters to do studies and those studies were done not only well after the trial but after the court had made a slight ability rulings which the district court never revisited and so it's improper procedurally for the court to consider any of that even though the plaintiffs are urging that as evidence to try to bolster those rules that's helpful who are you going to save a little time for frapp you want to turn to that right now i can if you like your meat if it says file in district court ordinarily file to us if impracticable to move in district court on the one instance you did file in district court that's hard to say it's impracticable to file in district court well the situation we  court issued that opinion on a friday afternoon i know all these immediate things including removing the children so when we've made a determination we had to do it and seek this court's relief we also did move the discourse the district has not acted on that motion if this court would like to maintain stay and allow the district court to rule on that we would certainly welcome that wouldn't there be practical reasons for that given the volume the record volume but especially in my mind given the fact that both sides so heavily are urging th context is changed i mean a minute ago opposing counsel said group homes are being phased out and therefore that coincides with the and you're saying they're down to eighteen which i'm sure they dispute but that's significant i think texas represented you are visiting privately with each child each month so huge portions of the court's concern based on the trial two years ago both sides are suggesting that's all different now why wouldn't rule eight saying she should assess balance of equities especially in the first instance make a lot of sense i'm not sure that there's anything that would preclude the district court from ruling at this point knowing there is nothing but my read the language to suggest disfavoring and i had one legal site but you is what we're supposed to do in other words if you want to send a message to the district court please address the state machine we'd be happy to have the stay continued until the district court does that we strongly suspect the district court is going to deny the stay motion we've had every indication of that from everything throughout this litigation we'll think is going to change and to be clear the argument that we're making is not there were constitutional problems before but what the legislature has done to solve those constitutional problems argument is the plaintiffs never proved the very demanding burden of showing substantive due process violations class wide the remedies that the legislature surprised since then they do change they go to the lack of injury to the plaintiffs because the status quo has actually improved markedly but to be with your argument that there's no system wide constitutional violation but if we were to get beyond that it merits panel primary talking about that it is there in fact still in the german bases for this kind of resolution by the district court and it  me what as not you know and maybe your mantra to ation is out of my hands to get a better handle on where we are right now with what texas is doing but i hope that the mediation where allow us to get a better understanding of what texas the plan is going to read to texas is already done i'm not trying to put too much pressure on one of you on the panel is that but i don't think we have a clear picture of where this case is and factually you want it to be clear i'm not sure if you're talking about do me doing mediation while there is some kind of stay in effect or the problem or under these tremendous pressures not only if the obviously if the courts injunction goes into effect we're going to be doing all these things right now and  and we finally have got is full of statements texas is not developing a plan in so many responses the record is very open to recalcitrance non cooperative ness and that their certification issue went back down to texas might have appealed but missed it by a day so it's hard to just say this is texas waiting patiently to check if i may just address that point alone we brief this  you know applies to both plaintiffs and the district court made this point of we're being recalcitrant because we simply provided information to the special masters and according to the district court we the twenty fifteen order to develop and implement policies procedures that we have been supposedly disobeying that's twenty fifteen that is completely belied by what everybody understood including what the district court said that it was the special masters job to be developing these remedies with our help which we gave them hundreds of thousands of pages of ducking lots of consultations and we were praised our cooperation with the special save the reply brief and then as the final order comes on twenty three eighteen and we find out according the district court that we were supposed to be independently working on these policies and procedures that we were paying the special masters a million and a half dollars to develop and the spec the district had said to the special master is this is your job to be doing this and that's what this court understood in his order as well just south of i think you may have been on that panel denying the stay where the court said yes the special masters they're go anticipated remedies basically saying because we had the temerity to insist on a right to appeal from these constitutional rights from the district court we believe that we have that right and we intend to seek it and if there's other ways to go about this including staying the individually one of things we mentioned earlier on today was to mediation before you leave a vic would you stand up i wish you would introduce yourself to that man he is our mediator and and he is just getting an early understanding himself of what we might be interested in all we're trying to do is to see if there's a way he can help you inform us where we are in this case and you've got understand that and they have less time as well as all these moving pieces but that's why you get paid more than we doing so nonetheless to you that we have no further questions for you today thanks all of you for being here and help us understand this you may all be back in a few months i'm not sure but you'll have to see what panel that is at that time we are