let's go through all four years the st order the district judge dissolved correct the court just dissolved two of three paragraphs of the order but not the last part of which at this point is most important my client but the ninety  injunctions by operation of law are no longer in existence my understanding is that there would be under would no longer be operational under law and on its face they appear moot and the nd one as well because the nd one with regards to former inma lie th during that time that's correct and there's a sanction a five hundred dollars sanction hanging up there five hundred dollars sanction but also and a council fee award of upwards of seven thousand dollars if you have not paid yet we have you have paid we have ok so you want to get that back you want us to reverse the contempt order yes we do and how do we do that without investigating the legitimacy of the injunction upon which the content the order was based why i agree i think that that's that's part of why it's not would would not be moot under this circumstance the if i could just a number a minute on the st who are one of the critical issues is why  one way in which we could provide a more equal treatment but that seems at odds with the tailoring requirements here if you're taking a remedial option off the table if the court goes back and forth by eight to fifty nine there's a later hearing where he wonders about why not just shut down the c r c and give men the same treatment so it's not clear to me whether he still maybe he's changed his mind about what was in paragraph three of the original orc if you were president  court you might be able to garner a little bit more from them what it says in black and white it seemed to me that judge that the district court was challenging myself and my clients with with that proposal in part because he benefits that are at issue here being out of the cell unlock cell programming these sort of things there's no constitutional right to those issues and if because of facilities and because of resorts is mainly the  number of female corrections officers the males are held in a facility where the where the facilities themselves by nature don't have locked doors and are remained open so that the males can use lights and the showers and things of that nature if the question is there is an equal treatment there the easiest way to solve and resolve that issue is to move the males back to the main jail so that everybody is on the same roof under the same conditions comfortably advise my clients that won't be in violation of something that the district court told us not to do so we're in a position where politically or mechanically with the county what they're going to do with that building and it very well may be that for financial reasons political reasons whatever it may be they will close that building and move the mail back up into the doubt that hasn't been decided by the political body but that is something that they can do to resolve this issue or you've conceded i think that the contempt order might still be might still be proper even though the injunction  if in the meantime the injunction order becomes moot and becomes unreviewable because it's moot doesn't that preclude the proper due process for the content nor the alleged content nor to be able to have another court review that contempt order and it seems to me that well i suppose we could remain in it to the district court to re examine the propriety of the contempt order with the knowledge that this court has held that the two injunctions are are no longer in effect right i think doesn't give you some process that would go i would give the guy i would give my client process to be able to review the validity of that award or so if we reached the what to do want to point by point basis now granted one of the arguments we were we make with regard to july th border is that it's exceptionally that using terms like space accommodations and  the space accommodations limited lockdowns and freedom of movement and visitation policies without defining what those who are without and which does not give the defendants the jail the opportunity to  direct for example with regards to the issue where they were requested they be able to retreat to a cell and i know opposing counsel their briefs objected to this but we weren't put on notice that anybody was asking that they be defended be permitted argument is we didn't get a fair opportunity to rebut that during the hearing i think that that's what you're referring to that we did make some argument in our briefs that we weren't given the opportunity to respond to some of these issues and it entitled to and this brings us to the question of a side by side analysis versus allowing the jail to create their policy earth to make changes if allowing the court to make a side by side allow us to identify what benefits are equal and what how equal benefits should be completely at this rate the deference that courts are mandated to of the the context of this case primarily that the concern is this a court is going through and making a side by side analysis it's quite clear the orders it's quite clear in the papers and frankly it's what the  permanent junction request they request identical treatment and that is almost impossible to work under there turner deference i'm sorry you're giving me a practical answer to that question and i'd like the sort of believe that there are substantial differences and the differences are within state law and very and cases that have held that this up segregation base are now female is constitutional the supreme court i have a paper for me but the supreme court has ruled that woodson are producing our papers and the reason for the separation of the segregation males and females is the state well title thirty seven mandi said with regards to living quarters there are some exceptions to that special unit special housing units which our medical and mental health units make hand do some programming together that's ok but they can't live in the same units together doesn't appeal or require requires it as does state law so sex based segregation is constitutional and acceptable except when there's a lot of comment on why that is ok because of that there is a distinction between turner deference and requiring exact precisely exact treatment and and the issues is the issues are because segregation of gender is acceptable constitutional and the standard we have to look at the facilities available to the government in providing the housing that is required we have to look at the resorts is that are available to the government in order to provide separate housing and when i say resources in this particular case i'm not necessarily talking about dollar figures and that's talk a lot about in a response brief he would appear that we shouldn't turn a difference in this particular circumstance all it means is as i read the cases is it's it's not rational what's the basis of the discrimination if in johnson and the race based cases we're not providing services because of a person's race i don't know what the what the underlying factors is what the underlying factors could even be there because there's no requirement that braces be separated in housing in our new situation there is a requirement that genders be separated and because there's a requirement that gender be separated there are circumstances all circumstances where they are where the genders are separated based upon housing which is why i'm using the term segregation and maybe that's an awful way of saying but males have to live in one side of the building how to live in the other one or as in this case and in many cases you know with a completely separate building you can be that you are confused because judge greenaway i think was talking about race disparities or discrimination generally subjects isn't speaking to this situation the question is do we read johnson more broadly is saying no turner difference in any kind of racial disparities that are in express and you're talking about of a sex based difference that isn't women are eligible for this it's how do we deal with the facilities ready issues here so what's most analogous rap dueling analogies well i think what's more analogous here is if we look at  circuit would always dress in some form or fashion gender based segregation and impacts on females because of that segregate let's talk about hits for the d c circuit which yes it's said when we're talking about a program magic distinction but the women were housed much further from the destroyed in the men were not going to apply turner difference right because that's not about day to day operation of prisons that's about just the whole facility was just cited in a much worse way is this case like that or is this a case of day to day operations so if we view pitch persuasive it's not binding on us but what know what lesson would we draw from pitts if we were persuaded by greed that we're talking about i really were talking about operations or programs actually which is what was analyzed by the programming available  but all of this merges together here in our case each of these issues because we do have two separate facilities affecting one classification of inmates by the navy now and are all female  as a natural flow of the need to separate and frankly to develop more space to allow males to lead more space in the main jail they opened the series see some years ago  c does not have functioning locks desir c was built as a juvenile detention facility which has the has communal bathrooms for lack of better terms in the units so you can't lock somebody in a cell if they have to be able to get out and use the bathroom you know that's that's a code on the pennsylvania code whereas so operationally and facility wise the c r c necessarily choir's quote some level of different treatment operationally than the jail and because the jail is operated as as the testimony has been through for hearings the  operates the way it does with law cells and different levels of programming because it's a more secure facility and therefore operationally turner is a issue because operationally the two facilities that these classes and then these are held and address day to day operations now there's also a programatic element here as was in pitts and the program added element which really shouldn't be an issue much anymore here is part of the claim is that the males at the c r c receive different programs than the females at the g a o some of the court overstepped its bounds by directing the jail to do what it did in the st the i wonder whether smooth or not the judge told the jail you have to give her the exact same program as at the it your understanding that the contempt obviously is still there we talked about the compliance and he compliance order that went along with that with regard to the pullman junction that's the in effect after the ninety days i would i would argue understanding of appeal are a as it relates to that i would argue that it's not at this point if if you can having or direct you to do something as a result of an order that no longer  doesn't apply here because it seems to me you can have a district court answer the order defendants say four corners with why we argue in our peter's you know you'd only applies if the parties don't bring to the district court's attention where the district court doesn't take its own cognizance of the fact that the district court needs to proceed to a final hearing on the merits within ninety days this court but if it does that it has to make all the findings required by the p l o none of that happened here right about this room to make just as a point of information did any of the parties my name is sue me and i represent the respond to a few of the questions that were raised st of all intermediate school does apply here johnson versus california should be applied in gender discrimination cases specifically at the two thousand and five case the rationale there certainly applies here were housed together by race i think it was in california but under the evidentiary record no other prisons really do that the united states actually intervene explain that there are a lot of benefits to racial integration and if there are specific instances where race must be considered the prison may still do that but it must do that under the scrutiny right but there was a blanket policy that sort of people intake is that fair to say yes but here are we dealing with a case where  day to day programming we're dealing with whether there's a toilet and a sink in the cell or not whether the visitation is interrupted by a glass partition or not whether somebody is living in a day room or not i mean you're a myriad permutations here that affect both the female inmates and the mere male inmates are there not so i think though what happens in the litigation is each of these different conditions got partly because of testimony of the different individuals in analysis but the overall picture is that these are all conditions for the community reentry center that all are designed for the goal of rehabilitation so when you look there's a policy and it's undisputed that women are not allowed in community reentry center and it was undisputed that the women the conditions of that women are housed in were not comparable for example much less sometimes they are better i would disagree with that how what would the vision station rights of the  three weeks of limited sounds a lot better than once a week for forty five minutes right i will i will note specifically that the testimony from the clients were that the quality of the visits was markedly different because it was through glasses very noisy and so i think that's what really the court looked at which was the quality of the visits was far inferior for the women than it was for the men cancel it your argument against term of difference though i think it's conflating segregation with  disparate treatment ok you're not disputing that segregating men and women into two separate facilities is constitutional correct we do have to see that right now under johnson you can't do that johnson says strict scrutiny that's why there is no turner different we understand race and sex are very different yet don't segregate the races we do segregate the sexes and the period p r t a requires us to segregate the sex for the safety of inmates and the reduction elimination of rape isn't that a powerful at least congressional judgment if not long standing preventable one that the race and sex are different for purposes of prison difference but i don't i think that's incorporated by the intermediate scrutiny standard which must look at an important governmental objective and i think we're turning my apply here is that in the immediate phase it is extremely important to balance that the principle of prison difference and looking at what your objection here is not the overall conditions for the men and women are or were not were not similarly situated based on the extensive testimony the multiple documents that the court review ok got there so we had this argument about what level of difference we apply the next analytical step is we all agree we're under the p l o right here what did did the decisions below make the findings that says why not just the regular p r standard but the additional four factors women do not have the same access to various privileges including phones microwave showers commune meals or eating outside of the cell and i will note that this is at and i apologize the pending cases are little confusing towards the standard and it has doesn't seem to walk through each of these four prongs individually just goes and says they're satisfied well and then he talks about the sort of the different read rationale that he disagrees with and that would be in this opinion a forty female guards yes because he found that there were either thirty two dollars or thirty three dollars b mccracken officers hired over all depending on get a feeling in january are made of that's why there's a one percent difference and then the bidding system as well as sick leave affected how many were available to be assigned so that was either twenty one or twenty two depending if you look at january or men that were available to be assigned throughout the prison so that incorporated where was that finding he did make specific findings of fact with respect to the staffing issues and i'm trying to find out where the findings were about the union bidding rules relative to the staff yes he does mention the bidding and i'm i'm trying to what i'm trying to get you away from is the i'm suggesting speaking only for myself that mentioning isn't good enough because what district judges mentioned a lot of things but they make findings  finding some trying to find out i couldn't find the findings about the bidding rules so if you could direct me to that that would be great so he notes six female correctional staff members are in big positions meaning birth county cannot freely allocate those personal throughout the jail as a result burke county may assign approximately twenty two female correctional staff members to posts throughout the whole class not just these two right that's right that's why we moved on behalf of the whole class in a later point in a separate motion which was then granted based on the record but but has there been a final order entered in that case because the ninety days is not one for that particular would do we understand the i won't speak for my colleagues they probably understand already i want to know is there a final order with regard to the the new class action so before those ninety days are up there's something magical that's going to happen that we're open a long time as you point we have to make a decision whether we move again for the court to make additional findings oh and is it your understanding i presume the answer is yes to this question that both that either you or i or the defendants could move for a final order presuming that both sides have a vested interest in either it being not finalized or it being yes we certainly can do that but counselor ok i don't have anything we want to say on that point you know so this is a complicated case with five different parts and feel free to tell me that the answer is in the and so forth right there right there not just prohibitory injunctions correct and we've got a standard under trinity industries that we can find these to the unusual cases the right to relief has to be industry to clear now i understand your position is that you are industry really entitle this relief but was there a decision by law on whether in fact this was indisputably clear and this was the most unusual case that merited a mandatory him for me it certainly when it talks about the appropriate limits in many ways and you tell me where ye i think that in the section where it talks about public interest it certainly makes a number of findings with regard to this argument against the security interests and the context is that this sentence argued that because a female staffing issues that it could not  findings of fact and it in in the very beginning in the the prologue if you will it kind of explains the rationale why he thought it was an extraordinary case and you know what the difference is that he saw and you know i don't want to be of maybe you could talk about a record deal injury here yes the district court seemed to take the position that any violation of a constitutional right is a reputable injury but the cases cited appeared involve things like elections where you use it or lose it it's it's over and done with there watson times when people suffer deprivation of a of a right and that's doesn't mean they automatically get a preliminary injunction that satisfies a reprimand injury what makes this one an as compared to them and you agree that if if they were to get rid of the c r c and have no special status for men your case goes away right there's no injury of disparate treatment after that point well unfortunately that would be the case i mean we would hope for other reasons they would not do that yes the county could choose and you're not aware of anything a prevents them assuming that paragraph three is gone and the people are a there's nothing against them from opting for that remedy as opposed to obviously you prefer a different right right right but if they are  is invidious enough for gender discrimination to cause a ripple injury but also in addition here what you have is you're looking at the missed opportunities of women trustees soon to be in an environment that's going to be looking at recidivism and you can't get that back to people who can't get those missed opportunities back for whatever reason it is and so in that sense it is an irreparable injury that can't be compensated solely through financial means through compensatory damages so there are some challenges with mutinous and standing although we believe similarly that some of the concepts behind the exceptions do is apply for example the women and the men actually truste order has only just been appealed but overall that's also before the court so i think there's exceptions to that is do apply here what do you do with a class that the likelihood is in their entirety will the people repetition comes in so that yes so unfortunately we have encountered this situation in the past we've you know my organization along with others have you know looked at conditions in pretrial detention people who are in who's holding cells for like class obviously we have a burden to the court established that these things are still going on and that people are still being affected and that people within a class which includes current and future individuals not just the  class so if but if what if some of the female inmate trustee inmates would rather be in their current accommodations of confinement conditions of confinement rather then in a day or rather than in the gym with one at one day a week visit to you know what if some of them said rather have three days a week a limited visitation through plexiglass than one day a week forty five minutes so what happens to them that brings up two issues one is sort of a practical goals of professional conduct we as their attorneys really need to talk to as many people in the class and determine what it is that affects them personally and then as another madoff i think a lot of the federal  do contemplate that so for example if you have a class action settlement there's a whole process allowing for a notice to the class of people to object which the court they and they take into consideration to hopefully take into consideration all the different perspectives or conditions that people are under but it's it's majority rules if you when you get everybody moved into the c r c but there's twenty women who don't want to go they because you've talked to enough of them in the majority want to go than those twenty have to go to what is the other thing about if you ha situations there is a process and i've gone through it when we go give notice to the class people have opportunities to write or whatever the system is set up their notified through the notice on the wall and here i will note that there is a new it is on the wall  that people are aware of it they have opportunities to contact us whatever their opinion is and we have an ethical duty to incorporate that ok and i will note that we actually did do that the dirt the court and we agree with us the court party doesn't always agree with you know our position at the last hearing that happened we privately a number of concerns and the core obviously makes its decision based on the evidence before it can be very frank you very much  have a few minutes know me you're taught your talking about sort of the window dressing aspects of being in jail and i was focused more on the i don't know i would assume when you get to see your loved ones as more of a subset of thing than the quality your pillow question of counsel what do you do when you have an inmate who wants to have the three days a week and longer visitation rather than the one going on and counsel response to that was and this is talk about the exact reason why side by side comparison was not appropriate their response was some white women might prefer more frequent and longer visits with partition and shorter and less frequent visits without partition so you should give them the choice this is an it made to order operation in a jail part of the problem we have though is this is a big target for it to figure out what reviewing do you you don't have to answer but do you have an intention to ask for a final order something we can argue even if it's even if it's know like just getting it baked in such that we're not under a ninety day clock and we can review it and i have to discuss it with my client of course there's a danger for any time a term suggests something that is something you might not like  but i understand the court's position on that and i will discuss that with my cards if i could just comment briefly on the another issue that came up term the last discussion the number of female officers were things that the district court got completely wrong misunderstood i think and one thing that in the briefings that the appellate he's got wrong by mistake i think is the issue of number of correct female question we would need a female officer to cover twenty four dollars south and there is testimony and there is evidence that in order to cover one duty post one position at the sears c or one position you know you need six bodies in order to cover that because it's a less one exhibitor well because the numbers are simply so this is like morning shift evening shift night shift weekend shift piecing together and covering days off and sicknesses on the system things of that possibility because we don't know what the court is really saying ok substantial compliance is and this goes to the contempt issue and this is what i really wanted to  warden said we can and upon order the district court will move inmate he has been to the overflow unit which provides some greater level of movement then a there's also the nd issue was also the question of visitation there is testimony from captain castro at eight dollars to eighty seven dollars this will be in the how they would comply with the order directing that is the f b i out of herself for thirteen hours that the cell doors be unlocked twenty four hours and that she be provided the visitation that the that the court ordered the case law says in order for there to be substantial compliance you look at the diligence of the efforts of a party or the alleged contender and what they did to try and comply that's why we would argue that the substantial compliance at the district court obviously disagreed with that as a result as demonstrated in the july th hearing but as to whether or not there cannot be compliance there's also there's no way to comply with our concerns about safety and security are speculative that's what his findings stated and there has been ample testimony through four or five theories as to the safety and security concerns by the detail under the circumstances provided here and to the effect that even capping kaffir testified when then allies these sort of things is the st thing they talk about it's what they talk about through the entire discussion and it's the last thing they talk about safety and  under those circumstances that's what they're tarred with