the immediate problems of a year ago which were tied to a series of events right included the shutdown of the government and there were two discrete events that impacted the electrical systems at the m d c one more significant than the other  what is going on is that the practice of which we complained before the district court which was illustrated through that series of events was the b o p s repeated cancellations and delays of attorney visit been tracking this there have been a number of occasions since the filing of our case leading up to the present day when attorney visits have been cancelled have been delayed for things that we think  predictable events in the life of the institution that ultimately could have been solved for and were not i'm talking about occasions on which visits were cancelled because of electrical maintenance occasions where visits were cancelled because of computer and power outages staffing issues that related to attendance at a retirement we're going to nd these are not alleged in your complaint correct well i'm responding i understand i just want to make sure we're on the twelve the six did you refer to a practice in the complaint focuses on one period in january in early february last year in which a fire occurred electrical outages occurred and there were a number of days identified in your complaint but that in which pretrial detainees were denied access to their counsel but but you're saying that the maybe it's been reported in the newspaper but that there have been other occasions since in that they you if you were to file an amended complaint for example you could show that this is a practice that is recurrent over time is that is that what you're saying that's exactly what i'm saying i would also i would also argue that in the at the time we didn't amend i think what you're looking for here is some sort of a ruling by this quirk that there have to be standards or something of that sort here but in your you're latched onto a that series of questions your honor we did not amend the complaint in the district court to focus more comprehensively on a pattern or practice we made a number of arguments in those proceedings our papers in support of our motion for a temporary restraining order and preliminary injunction included i think an extensive discussion of what we viewed as a cavalier attitude a lack of attention sufficient safeguarding of the right that we were asserting everything was attorney this is wh stored after the after the incident in february correct or early february or th or th and then it was back to business as usual and i guess what you're saying is business as usual is  unsatisfactorily but you haven't and there been incidents since but you haven't amended your complaint to to bring that up and so i'm just wondering whether this whether we have a case of controversy well it was clear that before the district court any amendment to focus on mean if maybe you don't think there's enough for an amended complaint no i certainly think that there's enough for an amended complaint i've referred to some occasions since the filing of the case that would lend themselves to that i think that the facts themselves let me ask pursue a six and then an a p a claim or they are you are pursuing or trying to assert the detainee's claim and i ask because i understand the detainees have their own current suit pending before judge brody in which they complain of the loss of access to counsel during the very same period that we're talking about here and they seek damages for that but i was i want to clarify on what basis you pursuing a claim on behalf of the federal defenders and not on behalf of their clients i believe what you have ending they have a distinct interest here it is it is overlapping in some respects with the interests of their clients but it is their own organizational interest that we think is is addressed by this lawsuit we think that they have standing as a party challenging with the courts equitable jurisdiction an unconstitutional act by the executive federal defenders have a distinct interest in connection with their ability to visit clients it derives we believe from the th amendment itself which has been interpreted by the courts as both conferring certain rights on defense council including the federal defenders in how they carry out their representation all role but also imposing significant obligations and expectations on them we think that they have their own interest and ri amendment what's your strongest basis for it for you pressing your own rights as an organization under the th amendment under the court's equitable powers i think the strongest basis your honor is a line of cases and i will provide some names where courts have effectively held that assuming you satisfy our tickle free standing obligations the district court found that here we don't think that that's seriously arguable as long as you satisfy article three requirements you may invoke the equitable jurisdiction and power of the court to alleged violations of a constitutional right and to attempt to redress those violations  that's focused on conditions we have not attempted to intervene in that case it's a close it's a class action of of individuals detained at the m d c that is one of a long series of complaints in the case yet look i think our view and i think it's a really important one what we want is an opportunity to assert the address different things i think that a class action by a class of inmates or detainees in this case that is addressed to a broad set of conditions related problems and there were many is not the right relevant to your case i wouldn't say they're relevant certainly we argued before the district court that they were a part of the complex of facts that that impacted the significance of the th amendment deprivation and that also candidly illustrated separate point i'm not sure if the courts question know either way corporates that as as style that case certainly would not be a vehicle to address and vindicate the interest in the right that we think is squarely addressed by our case i think that there's under the rules there's also not a requirement that everything that could be consolidated in one matter has to be consolidated one matter and certainly litigants in that we're not just asking practical of look i think it's an issue in a case like that candidly that the th amendment component of that case is a very limited part of it also got a broader set of claims but it's it's it's within the concrete way bear directly i think the likelihood of there being future episodes in which access to counsel is tonight with maybe more fires i mean that's part of the basic  climate the lawsuit and the institutional plant is obviously a huge piece of this i cited to more recent examples of electrical issues and maintenance right so that's certainly a factor here has has access to counsel been raised in the other my understanding is that it is one of many issues that have been raised in the other suit you you want to keep this action we are it is with us reviewing it in order to get a room with you in place for the benefit of the federal defenders and i were to us to say that you have standing to bring these suits in the future as an institutional matter your client is the federal defenders and so you're representing the planet and you want a specific ruling independent  whatever the images were bred that that accomplishes these goals is that this is the institution over the rights of the particular of the rights of the particular inmates at that time well this is the institution having combined your honor that the the court's proposal of carrying forward with the pending class action litigation with the federal defenders contemplating intervening in that case in order to assert their interests w will necessarily run into the same obstacles that the district court here found so the issue that we're asking the court to take up and to decide this overarching standing issue the proposal is not satisfactory in the sense that we run into the same legal objection or obstacle that we did before the district court which we think is not it was incorrectly decided he mean if you were to move to intervene directly he would be challenged on standing just as you are in the suit i would expect and certainly if i were on the other side i would make that challenge on this record what i'm saying is that there may be a case going forward that case as style now and i think ultimately even if the federal defenders attempted to intervene  we've been you know we've as we've discussed at least in our briefs and confronted in the district court that action does not address the interest of the federal defenders it's an interest in adequately representing and having access to their clients and trant what is the injury to the federal defender's percent use that diversion of resources it's in inefficient use of your resources in providing defense services because you can't access clients i mean as an organization what is the injury that you suffer from the resources argument is a key one and certainly what happens any time you know the federal defenders represent something like half of the detainees at the m d c they are visiting the facility on a daily basis what happens when you arrive and you can't see a client and what you have to do as a result of that is is complicated and takes resources also what happened in the early part of last year and the resources that the federal defenders had to devote to just trying to figure out what was going on and trying to understand and figure out how to add sagely assigned resource it is a resources argument it's also affording of their organizational purpose and objective impacted by the electrical outage we don't believe that that was correct and in fact the same day that the b o p made those representation the federal defender in charge for the eastern district of new york toured the facility and observed directly and this is part of our papers before the district court but that simply was not the case it was apparent it was spoken to by c e o s at the facility that there were issues with the heat many of them were wearing multiple layers of clothing and had scarfs while the inmates were there basically in their short sleeved shirts with no nothing else to you know cover themselves and it was you know the dead of winter and it was freezing there was you know condensation that turned into ice on the windows on the insides that sometimes  requirement of notice look i think the injunction would you like if i can st just address the set up to the court's question look at best perhaps those statements that were made were the result of miscommunications and a lack of adequate and reliable information at worst they were deliberate misrepresentations i'm not taking a position on that directly well i think that there's reason to conclude that they were not sufficiently transparent and i think that a function of another example of that is the fact that as defense counsel and the federal defenders in particular were asking for information many of their e mails and their calls were just ignored i think also you know in the record this this has always stood out to me as a very significant us look i think that the b o p has a challenging job the federal defenders have a different also challenging job candidly i'm not suggesting that the institution is not with respect to institutional plant trying to do the best that they can and i'm not here to malign them as an as an institution and the people that work there at the same time i think we have a record here really inadequate safeguarding of a vital constitutional right  th amendment your honor and this is not you know there are courts that have parsed this before and that have focused on practices and and procedures not not anywhere near approaching the confluence of facts that occurred at the beginning of last year just delays of a couple of hours courts have found that where that's consistent where there's not a policy in place to solve for staffing shortages you know we asked in in the district court for documents in discovery we asked for you know what are the contingency plans no one is expecting perfection we are realistic people the federal defenders perhaps more than most understand that things happen in life that are not ideal and that you can't solve for in you know in advance however the record is very clear we think that there was just a lack of due regard and ultimately the job you know the th amendment is you have to have reasonable s own regulations talk about opportunities to provide for attorney visits that has to mean looking at a number of factors and actually taking it seriously when you have documents in the record in the lower court where the b o p s saying things like look if this situation continues for another four days then we're going to put a contingency plan in place i don't think that satisfies th here so i think that suit was filed well this case was still pending before the district court so it was perhaps a month or two after i'm sorry that i don't have the present state it we kept you well past your time good morning your honour's morning could start out in just address briefly whether you believe that the federal defenders would be subject to a similar motion to dismiss is the one you filed on standing grounds where they too moved to intervene in the class action well without knowing the full parameters i'm hesitant to engage in that kind of thought experiment but i would say that most likely that we would so move and the reason for that is the bottom line in this case is that the federal defenders has no cause of action for either their constitutional claim or their statutory claim sort of as a matter of supposed to be opie had pastoral the federal defenders can only go and to the brooklyn facility supreme court's have spoken to a rule of flexibility with respect to the six movement you know presenting us that regulation consistent with the th amendment it would be hard to say not knowing th segue into the one that your honor has had has now given or or the start that your honor has given to that argument which argument or taking a position i'm just saying is asking a question well then let's say the  t at least the the area in which i would argue the federal fenders as i believe judge carney pointed out earlier are is essentially trying to assert a right that belongs to their clients and a direct focus in the way we do in the th amendment on the rights of the accused why is there federal defenders not a party aggrieved by the those whose regulatory breaches by a particular plaintive and so again we're coming back to the idea of whether congress intended to permit the suit and here i think we're going to run a motion to dismiss here still in the a p a is very very low barriers the supreme court has said  standing is pretty well established in the circuit why haven't they at least met that maybe they disappear at the summary judgment stage or at a later stage but they point to two regulation they have diversion of resources why is that a claim that can't even get past the motion to dismiss stage or your honor as an initial matter plaintiff cannot rely on organizational standing here none of the organizational and the interests served by the regulations is that of the inmate and having access to his attorney not the reverse and so this is precisely why he has not the united states to try me offers from the eastern district of new york doing everything they can to be sure that these defendants have full access to their lawyers it seems to me it is indisputable ie in the interest of your office the last thing you want is people coming into court in proceedings where your already we don't know whether they're adequately counsel we don't know whether they really understand what is involved in a rule of an allocution we don't know whether they really understand immigration consequences and on and on and on this problem it seems to me is going to use is calculated to make case your honor i there is no argument here that the u s attorney's office for the eastern district of new york is absolutely committed to inmates having proper access to their attorneys that's the one that's your whole case you wouldn't be utmost best including within approximately a day getting a prize of what was going on at the t r o stage coming into court having information at the ready from your prisons regarding all kinds of  conditions including attorney visitation and then remedying that situation not a better source of information to help you with these responsibilities in the federal defenders i'm sorry your honor is there not a better i mean all these things you're worried about you want to do and the information that you need comes from the federal defender i would think you would want them in the middle of this act well the fact is you know they are in the middle  they regularly represent their clients in the courts as well the they remain in the middle of it because they're bringing these concerns as they arise to the courts and in fact they did so in this matter the reason that the courts were aware of what was going on was because the me have now who claim they don't have access to their clients don't have a th amendment right to raise that place right now is correct so what you want them to do is go hire lawyers number two to get them access to lawyers number one i don't get it well your honor i mean as it concerns the federal defenders that the inmates always have access to their attorneys  all the facts of this case i think were what george parker's thinking about is perhaps the big picture the federal defenders are funded by the federal government they are a branch of the judiciary that they come through that are it's the judicial judiciaries budget that funds the federal defenders so we're talking about ways i governmental agency if you will at least they're funded this way funded by the federal government and they receive fees from it that's precisely the reason why they can't have organizational standing here because as they have an article three injury there is no injury in fact when the when you there is no harm and the fact is that the federal defenders are publicly funded lawyers it's not a drain on the resources to do what they're paid and required to do it's their job in fact to represent criminal defendants let's assume that the other class action hadn't been f what redress to the inmates at the house of detention and what would they have what redress what they have to have the same redress that they've always had which is why which is to bring these matters to the attention of the court during their criminal and complain that's correct yes and but are you rejecting the proposition that an organization that's devoted to providing these services doesn't have a valid article three interim if it has a success that significant diversion of resources i mean being part of the federal system and having a limited budget they can't afford to spend time cooling their heels and waiting for a day to open up where they can go see clients i mean every every hours of the essence absolutely are and i would not reject that position what i'm saying is that the cases they have cited for the proposition that they have organizational standing the havens case the case the central case the bloomberg case these are all cases involving a statute that provides a cause of action to them and there is no such no such standing in any case that was one derived under the constitution or in an a p a case like this because there is no cause of action there would in theory be a cause of action for the individual prisoners in either scenario in the constitutional claim or the accusation the regulations charge the wharton with putting in place reasonable times and conditions for visits by counsel and stress the urgency of inmate access to counsel why are they within the zone of interest contemplated by those regulations because i submit your honor that congress never intended and again that much tone for the sort of interest test is whether congress intended to permit the suit and i do not believe the government does not believe that congress ever intended for the federal defenders to assert an economic organizational injury in connection with the b o p statutes and their interests and it's in our interest to have this problem solved because if we go down this road you're inviting dozens and dozens of twenty to fifty five down the road put that aside my question is are you urging that the proper approach to this problem is to have each defendant come in with his or her federal defender and objected each and every case to an adequate access to counsel if that's what they believe as have you or i what i'm suggesting is that i believe those who have the cause of action should be bringing the case and the inclusive in that is those with with the right those who are aggrieved there are fifty inmates out there who believe that they've had inadequate access to counsel is it the government's position that each of those should separately take this up with his or her federal defender and then take this up with the judge to whom the criminal case is a song generally or that wasn't even required what would happen is that in a singular case one case a judge took up the issue and decided to investigate and so that you don't representing the individual and the defendant any of the other cases so it's the government's position that he has no standing to raise right yes each counts each will each each inmate has to raise it separately before in his or her criminal proceeding right what if the question is how does this issue get addressed i think i think that we've seen in the record is that one inmate or one or two inmates brought the issue to the courts in the courts responded and that did not require the federal defenders as the plaintiff to become involved a way to address this issue and it would be to address an administrative leave that is the bureau of prisons of the federal defenders sit down and they talk and they try and figure out what does affect what do the federal vendors want what what kind of procedures what the like to have in place to be able to accommodate whatever their interests are and whether that's a problem for the b o p and that can be worked out and the whole thing could be taken care of it could be done through mediation we have a mediation component of the second circuit with the government agreed i'm sorry when the government agree commonsense way i'm i understand runners point and i take it and at this moment what i can assure the court is that that discussion will be had at my office and i'd also note that my office has spent many many many hours on this case on the case pending before judge bernie the putative class action individual suits have been brought by the by by prisoner plaintiffs and and steps have been taken in the interim to swash some of these really are seeking damages and i suppose since this is a facility that are hard house's largely pretrial detainees they're less well positioned than the federal defender start to get the court's approval of the point of a special master having kind of ongoing relationship in that that would be a form of be a formal court involved version of what judge walker is suggesting that might happen informally through mediation but that is not pending emergency so the federal defender's is the best party position to seek that point of a special master if for example these conditions were to recur on a regular basis your honor we submit that the final defenders is is not the best conditions litigation where people are incarcerated for years and get by consent decree court supervision the conditions of their confinement that's what also puts the federal defenders in a much stronger position here to say no one else is can take this i certainly can understand the equities of the federal offenders position the government has as not been insensitive to that but what i would point out and if your answer indulge me for a moment the federal defenders cannot be the proper party because they have no cause of action and that's because as the court has already i think observed they don't have the right under the th amendment and they're outside of the sort of interests for the statutory let me actually ask about the statutory claim because i'm looking at the regulations that were promulgated under the relevant statutes right and they say the wharton shall provide the opportunity for pretrial inmate attorney visits on a seven day week basis the ward may not limit the frequency of attorney visits since the number of visits necessarily is dependent upon the nature and urgency of legal problems involved you have to at the time and places for visits they can make exceptions according to local conditions or for an emergency only the warden shall make every effort to arrange for a visit when prior notification stop practical these are of prisons implementing the statute in a way that knowledge clearly with the federal defenders is saying that they are in the position and have interests of their own in terms of how their resources are allocated to make sure that these people get represented just tell me why that's wrong why i don't think anything your honor is that was wrong why do why doesn't that the place them within the zone of interests and give them at least a chance to pursue under the a p a a cause of action against the bureau of prisons or against the government here for not living up to that those mandates because as the supreme court has held over and over from the clark case to the pacha case to lexmark the concern and focus has always been and remains on congressional intent to permit a suit and here that's just not present because  cannot be reasonably assumed that congress intended that the federal defenders as attorneys for the people who hold rights as as attorneys for people aggrieved can come in and make a claim under the statute an and forty two concerned prison administration has no connection at all the united states attorney have any objection to sitting down with the u s with the federal defenders and trying to walk through these problems no objection your honor  something that is satisfactory to the federal defenders and it's that and then takes into account the need for flexibility of the part of the m c c in m d c administrators i think that that sort of practical and pragmatic approach is exactly the direction that this conversation should go your honor we attempted to do that before filing our case before the district court by trying to engage with the bureau of prisons they were not willing to have that sort of a discussion at that time for whatever reason perhaps the circumstances will have changed after this would contribute to that the federal defenders are our search really open to the sort of process that that the court is discussing and candidly would vastly prefer to be doing that than to be litigating against the bureau of prisons they have to work collaboratively and try to work collaboratively with a b o p all the time i'm sure they would love to get back to their regular exchanges and their day job and not be focused on this as a litigation i think it makes good sense i would also add that you know some of the difficulty with trying to have a pragmatic solution and to have a conversation before ties into some some see no reason why i could go back to the district work for the purpose of considering mediation and and maybe even appointing him here to resolve this rather than have this this drag out i mean this this is a lawsuit a life issue right access to counsel and the damages context in the other lawsuit so there are questions that are raised in that suit as well that bear on what after resolution might be achiev here between the federal defenders and the prisons do you think well look i think that i think that the issue of access and an approach to that that would get both parties closer get the not participatory and attempting to come up with appropriate language the federal defender certainly allowed for security interests and concerns so i think the trend for the federal defenders is to have those kinds of conversations in terms of the broader case look i think i think the focus should be in any proceeding derived from this case on attorney access i think you can segregate those broader conditions allegations that are a part of that class action and that seek as the court has noted damages remedy and not the sort of injunctive prospective relief that are sought by the federal defenders in this case so i think there is a way to part of that out without making it something that's mired in the breath of that case which is obviously much broader than what we've talked