good afternoon and welcome to the ninth circuit we wanted to have this hearing here at our past in a courthouse because the judges are scattered that means we are electronically connected with judge bheja who is in san francisco and judge ferris who's in seattle but you'll be able to see them and they can see you i understand that there is an agreement as to the sequence of arguments and i should confirm proceed we can start the clock that way if that would be useful or you have twenty minutes total if you want to divide it ten ten then we can do that and we can do that for the appellants as well so why don't we go ahead and put ten minutes on the clock please the court suzanne snowden propellant intervenors mine only and francis marino we have kids here today who are from the los angeles unified school district who will be starting school next week these families and their children are being forced off special education centers onto inappropriate general education campuses that will start next week we believe that the district court abused who do not want to litigate renegotiated outcome seven the judges focus on those families who don't want to litigate renegotiate that outcome seven and it's negative affect has ignored and not recognized the members of the subclass that lisi to represent that this court already found did not have adequate representation based on renegotiated outcome seven find that in the record put to put the record appears to show is that the district court eschewed to tell him what is a class that you represent and instead of mentioning in that question you elected to appeal  class plaintiffs who are you that it was overbroad and after reviewing the initial motion which mr amster can address it was his it was his motion and his definition that was in the initial motion but after class counsel indicated that it was overbroad we submitted a reply which was consistent with this court's prior ruling as well as the  moreover district filed an opposition which was also considered and deemed to be moot because the district court denied the certification of the subclass and in effect denied us what the were without prejudice you can go right back there and do what you're talking about cannot we can't attempt to your honor but we're concerned and we also believe we have jurisdiction under rule twenty three  because we believe you have an ass dischord to exercise discretion we filed a motion and said in the state i forgot that the case number but we did file a  appeal under twenty three f and the cases were consolidated there and the judges ruled that they would rule upon our requests for permissive appeal after this cases after this case has been h to we have been denied at every stage of this case by the district court and he attempts to act on behalf of the subclass why do you have to mean you obtained intervenor status you've from solvent special education center on to p o p o middle school the los angeles unified school district objected saying that we didn't have standing to raise issues on behalf of the sub class and the  them have the ability to state that objection we were told we don't have standing because mine a lease on is already out a special education center and francis merinos daughter passed away so we neither of those families had children at selvan special education center and as a result we were denied we because we didn't have standing so we are we're it is a death now situation where we are these families have yet to be represented in this court sound and adequate counsel and us and a class that isn't being represented and what we're arguing is that the district court has a fiduciary duty to protect the members of the decision on the class certification itself didn't consider the record that the district court found that because of my knowing the mind always settlement of the center for the blind her son's blind deaf cognitively impaired and she and her child was forced onto fairfax high school and she filed to get her child back into a special education center you a brief time for a bottle but i don't want to take the time away from your colleague think you good afternoon may please the court i am seymour am story representing the interveners abel munoz so i want to jump into specifically situations specifically what is important is the district court both definitions that we gave to them on a subclass doesn't make a difference of the other side have the right to argue or not the court denied it so what more are they going to argue something more for the court to we decided to also give another option and that option was that in the record students with disabilities and their parents who want a special education centers as an option the court denied that specifically so what more we but that's not the language that you used in your proposed class sort of occasion category one individuals who were designated by l a s you as the as students with disabilities who were place and remain at an elite u s the general education campus that is not what you just told us one minute ago that is your reading from the original motion to certify the subclass in our  and that is the only one that was validly considered by the district court because the other classification came in a reply brief and other cases are quite clear that you cannot have a class  raised only in the reply brief with all due respect the district court should have maintained that position and never considered it to district court denied that and the minute the district court denied it it became right and then our problem is this the district court never said this was with prejudice or without prejudice so what he did to it it ruled without prejudice a denied your motion to certify without prejudice and state that if this court wants to be civically state that that's their interpretation of the decision at least we move forward on that because it never said without prejudice and that was our problem so therefore we left up we're left in the in a dark room trying to throw darts at a dart board that we can't see the district court made it three things very specifically one they denied our subclass definition the motion as you stated to they deny the definition given by the ninth circuit the only difference being that we broadened it to new families that have come in that want a special education center an option that did not were not there in two thousand and eleven the least give us direction do something the whole point of the matter the motion to intervene that you talk about or actually talk about class representation how can we keep moving forward on a matter where we have absolutely no class representation as a stake in the proceeding the over the only enough to do comes will is for fashion a class similar to that which we recognize as a group that should intervene and submit that to the district court but you're not doing that would you doing is you trying to enlarge your close to take over the whole lawsuit that is not you cannot do that is not confess i had trouble understanding the district court's order who who mostly talked about the original definition but from time to time appeared to return to what i'll call the revised reply definition the court identified some objections that it had or or places where it thought the revised definition fell short notably with regard to numerosity common issues and adequa representation as to the last apparently going to the same problems which have been described in terms of standing which to be honest we weren't conscious of the first time around for this case we were reviewing the intervenors as people who who at that point in time still had the standing to pursue the grievances it's assume for a moment we give consideration to the revised class definition how does that definition satisfy the deficiencies a den of fide by the of our motion we are at least identify forty families or students that have been taken off of specialist centers of not more so the same route numerosity definition applies to bo the reply definitions so i guess i should direct you to those i'm going to give you two commonality i'm going to give you the big and the small the biggest one is this the greatest threat to the health and safety and education of the proposed subclass members is plaintiff's counsel and this threat will not be eliminated until they become a subclass with their own independent appointed counsel who are willing to advocate on their behalf our briefs go into extreme detail where before revised outcome seven these families were happy were they wore then they were forced off we've got outcome thirteen now being considered which is extremely important and these families are at a threat i have the services in properly taken away from them other commonalities this they want special education centers as an option it's as simple as that and special education centers are part of the continuum so  terms and all reality has been so fully briefed there is absolutely should be no dispute upon it miss notice on an excellent job and if there is overwhelming evidence not the problem is this and i'll tell you right now you send it back to the district court i'll tell you we wouldn't be here right now and how absurd is it when you have a class action where the only class representatives have aged out have graduated are not part of that and they have a say but actual parents and their children don't have a say and they don't even have due process rights because it's already been ruled on by this court they're not being represented we have shown in our history that one outcome seven and seven be the four modified was stated in the record the independent monitor we are not going to be able to make this outcome because you've got that you've got the parents not wanting it to happen they don't want their children transferred on the general a campus is so what happens we don't just de helsel then engineers where they put in revised outcome seven where the parents no longer have a say in their i p because we've iced out seven overrules they're independent decisions and there's overwhelming evidence of how that caused the transfer but worse than that outcome for smoke and weave in the stipulation outcome for was the only outcome that measured the meaningful education for these individuals it was stated that outcome for was not being met that there be a timeline starting in september two thousand and twelve complaints your time has expired if you want to reserve any time later i think i don't have twenty ok now that you're in deficit you've actually over twenty six seconds but deficit is sort of the federal government's way of doing things sometimes so table this panel said that there's a problem with that or there might be a problem with outcomes seven and we've been waiting now two years for them to go to court and say to the district court here's the person heise problem with the outcome seventy one it's tricky when we want it modified we want something they don't need a class they'd never need a class to do that we've we've talked to them about oh they have a standing issue you know what they might but we wouldn't most likely wouldn't even raise it because someone else would have standing so this court has already said that the issue is important that the idea of potentially an arbitrary number of students being transferred out of office might be something somebody should advocate for so i can promise you this after conferring my client but we would probably say if they without a class talented outcome seven and said it was illegal and they wanted it banned we would either oppose it or we wouldn't oppose it we either change it or we wouldn't change it but unfortunately it's really been a waste of time i don't even know why they've done it i do not know why they're trying so hard to create a class i want to talk briefly about that class issue because even this revised definition that mr hamster is talking about also all children who would like best lead satirises a placement that's that's not a class that's everybody it's part of the continuum in the consent decree you can't have that as a assure the panel that we are not here trying to could put the cup bosche on the efforts of the interveners to advocate against outcome seven where we're waiting for them to come before the district court and say here's the problem when it comes to this is what we want you to do we might even work with them on it it's think that's ironclad under twenty three f and under the microsoft case for purposes of the appeal there's no jurisdiction there is no exception and even these post judgment cases i don't think they would apply anyway but they certainly were not placer cases secondly there is no need if you were even if we were under the petition which i would not like to argue today but if we had to argue the petition i would say you don't meet any of the three elements there's no death knell because they could argue  really we are we really shouldn't be here but we want to assure the court and talk about the tiro for a minute because this no made this point about oh well we couldn't advocate on behalf of these children i think if you look at them in damus record that is completely to the contrary they came to us at the last minute they said there's these sixteen children who don't want to leave the specialist centers and you're really pushing them off and we said look you really don't have standing you're not there are their lawyers but i'll tell you this we discussed this internally and district said we'll offer all of them the opportunity to stay in special ed centers or only five to come up and that proves to you that this shouldn't be a subclass because how are you going to tell which of these sixteen really wants to be in the subclass and which doesn't want to be in the summer class so there isn't a harm that's going on to a group that hasn't been given a standing i wanted to briefly address the question that came up about now we're not inviting that there should be another motion for class search but we are we know that under twenty three c one  is always open justice ginsburg mentioned that in the microsoft case so you don't have to say whether it's with prejudice or with not it's always open until the case case is finished and then finally the last point i want to make and i'm going to try to end early here and turn it over to my listeners questions is that if we never even had a chance to respond to the supposedly reply class that justice day you were pointing out you should not have been considered at all but we asked the district court we said if that's going have to because the judge did the work for you potentially but if we're going to criticize the judge we may have other arguments not to the judge isn't a great judge but you know we may have some bolstering arguments on that point so in summary we don't think there's jurisdiction we don't think there is a basis for questions about the difference between the class definition raised in the motion for certification and the definition advanced in the reply to the district court i'd like to note that the changes in the class definition have continued since then and that we're continuing to see variations in the proposed definition of the class even on appeal to this court and even in the reply briefs we saw new variations post and one example i want to call out all of the proposed class definitions appear to turn on the opinion of families about whether an special ed center should be available but some of the proposed definitions frame that as i want a special ed center for my child versus i want a special ed center to exist in the world without regard to my own child so it's a kind of theoretical opinion about special ed  all of the class definition speaks to that mean granted it's it's been a little bit of a moving target but this is a dynamic subject and as now pushed forward the the notion is that that the intervenors want to represent a subclass of people who understood them to say what do i have that option available not just theoretically but for their child and part of the problem here is that people are not of one mind you have people in the same category indeed you are representing a class where it's entirely clear that there are people covered by the class definition who have a different desire as to what the outcome of this process should be so so how does the court deal with a somewhat under rolly class or subclass where not everybody wants the same thing a year and i think some of that is going to be that persists and with which the subclass is defined and our position has been all along that we don't oppose sort of kishan of a of a subclass we heard the court two years ago  and we have worked hard to make sure that the interests and concerns that were raised by the intervenors have been addressed since then the office of the independent monarchs sample has been investigating the issues that were the substantive issues that were raised by the intervenors and some of those who are their children were placed on special ed campuses that weren't with texas or didn't have changing facilities or they went to i p meetings where they were kind of railroaded into a certain outcome all of those issues have been addressed by the independent monitor who is here in the courtroom today we had we had examples taken up before for example with regard to the tension between the outcome that would reduce the number of children placed in special education centers versus what we are told or heard a few minutes ago individual education plans which in effect are steamrollered by the outcome revised outcome seven and i will say from the perspective i came into this a couple years ago certainly we've had lots of i d e a cases l a was something i was unfamiliar with them and i was puzzled by an outcome that said as a target number seemingly untethered to the i e p's for individual students so that argument was something that resonated with me and now we hear from the intervenors that the problem exists that it's not being addressed and the court won't hear them because they don't have standing when from your perspective what what's being done to address it on a five problem you know now that the issue is whether a particular need a special ed center or a separate school that offers a comparable program which might be a nonpublic school our children who have that need being offered those placements and it's  there are mistakes there are mistakes made i was pleased to see for example that all of the interveners were able to resolve their children situations when they came and they they did that via settlement or they did that by standing up to the ip team and saying i want my child to stay on the on the special ed center and that became apparent when we looked at the declaration from the intervenors that were filed squeaks because as we talked about a couple years ago this is a big system and a lot of people in the system our family is ill equipped to deal with the bureaucracy absolutely are and there's a couple ways that this is happening  i want to assure the court that special ed centers continue to be available on the continuum and in preparing for this argument i asked the district to give us the number of special ed centers that remain open the grades of the children who are entering those the population how many children are in nonpublic schools looks like there's about eight hundred eighty kids in special ed centers there are eight special ed centers that remain open many of them do admit kindergartners there are about twenty nine hundred children in nonpublic schools which have programs comparable to a specialist center that's what most other districts offer that system seems to be stable so when a lot of those numbers compare with two years ago five years ago in the past i mean i've as there been a decline in the number absolutely there has been and it has been part of a process of achieving better balance when we started litigating that time to smith case the balance was pretty extreme in one direction about twenty percent of the kids with special with disabilities were in general at what our goal has been is to balance it at about fifty fifty and the court reflected that in its two thousand and sixteen decision where you went over the history of you know that the extreme imbalance and the goal being about fifty fi it's fifty fifty right now there are no plans to change that there is a question i think about are there mistakes made and absolutely we represent we as class council we represent new class that you do not oppose you know we have had confidential settlement discussions with intervenors about acceptable class definitions and we've never been able to reach an agreement and part of that i will say is that there are two groups of interveners and they don't agree among themselves and so i think with one of the groups of interveners we could be very close to a stipulated class definition with the other groups of interveners were not and this is one of the issues i think that needs to be presented afresh to judge lewis and the district court you think it will help you at all if we i'm going to mediation versus proceeding to argument i have we would support mediation i just want to say to you i think there are also important standing issues the courts flag this before both the standing of the interveners who are before the court now the impact of their settlements there are two apparently children who didn't have a settlement i'm not totally clear whether they both are not all of the original interveners have submitted declaration saying they want to be classed representatives i think one option would be for the intervenors council to intervene in additional told wron who do have a personal stake and i am concerned that the current  personal stake that is required to be a class representative and a viable klaus do we have that problem with the plan of class representatives as it is in one of the problems of the sort of patients so long lived that  and this isn't meant to be at all disparaging but it has a life of its own that's sort of separated from the individual names whose that appear on the front page of the document your honor i mean that in other cases when i have lost  class representative or they've lost standing i've intervened in new parties because this is a post argument consent decree we didn't do that but we could and i do want to represent that we have our finger on the of what are the concerns and the threat that that binds all this together is are the children getting a free and appropriate education and whether it's a specialist center or whether it's on an integrated campus that i think that mrs known referred to when she first up and that is children at a special ed center who are matriculating as matriculating and don't and their parents don't feel that there's an appropriate place for them to go to me that that is exactly the kind of issue that we can raise with the independent monitor part of the consent decree includes  a client resolution unit that is family friendly is does not require them to have lawyers or go through due process the monitor has been carefully reviewing and ensuring that that c r u unit is properly responsive to families that's always an option but i guess i was struck by the fact that these children had been at a segregated school that the children who are matriculat they were integrated so that non disabled children were on the campus with them and they had a really positive experience so i think it does show that the issue of integration for segregation is not that black and white that all children including children with severe and moderate disabilities can benefit from into from contact with their non disabled peers but it's an individual question each child is different cases it was treated better that we're not all of one mind some counsel mention special ed centers south of downtown los angeles it is a catastrophe they don't exist those that do some except high school students some accept middle school students some accept grade school students very day they were appointed you have the independent monitor is involved in negotiations that's not his job but he's forced to do it because plaintiff's counsel won't do their job so we talked about the eighty eight violations which are so important our propos found out there l a u s d s i believe one point three billion dollars in a rears on eighty eight compliance he's been working on it nothing's happened bathroom so in the last i am reported two thousand seven hundred two thousand and eighteen one in five schools lack of assessable main entrance one the four sites have vertical axis problem almost nine out of ten schools have pervasive problems are non compliant conditions these are not scheduled to be completed to two as the most segregated of institutions because the family members die off this is a critical situation no plaintiffs counsel is not advocating on behalf of the sub of the proposed subclass it is one of the interveners she's not in a special ed center she wants to be in a special ed center and don't forget during the colocated activities she went home and when her pass was pulled down she said no and that's in the declarations a monitor unsupervised what parent would allow their children to go through these things but when there aren't the resources being advocated when plaintiffs counsel won't file a single motion  half of the proposed some class what do you have and they turned on them the families would not agree to special ed centers so they took their rights away what  seconds i well know i made a point of saying stick to the three minutes and you're now approaching four so you i just wanted to make three points one miss burd stated that she received all the information on special education centers how many kids were on the campuses how many one how many special education centers are open i made that same public records act request five months ago i have had no information because i am not in portland and off to provide that information to second talks about nonpublic schools non public schools are that their enrollments went up as a result of the special education center's closures so i'm not sure why ms byrd will advocate for non public schools and a thirty three percent reduction reduction in those segregated schools but will advocate for a thirty three percent reduction in special education and education centers i just want to point court to the district court's order where he said as a general matter the court finds trouble and intervene or suggestion that the court divide the certified class that has been in tact for more than twenty years saying that they have been open to us and providing for our issues that the truth is that they opposed our t r o on the grounds that that mine only and francis marino did not have children attending  special education centers and the judge granted the denial on that on that mode for that reason francis merinos is a is an advocate for special education centers her daughter died in an inappropriate placement i had actually filed for her to get her child back to a special education center so she so she has she advocates for special education centers her daughter had wasn't stimulated and she passed away the merinos believe that because the this child was placed from an appropriate placement on a special education center to an inappropriate general ed placement that it but the possibility of mediation with this court was raised i would just ask you collectively if it is worth our withholding submission for a week or two so the group collectively decide whether media or the mediation system would be useful if anybody tells me now that's a waste of time that's fine then then the panel will confer and issue at appropriate order the case is not submitted in this time an order will be submitted shortly that's the end of the day