but isn't it the case that the judge said you didn't carry your prime facia case for a three judge panel but made no ruling on the merits on any of your claims including the relief that you were seeking that is not really so i mean you've under section twelve ninety one how can it be a final order if there are still claims which there are and there is still relief that you're seeking which you are other than the kind of relief that you have to get through three  i would submit that in this case the main thrust of the amended complaint is a prisoner release or maybe the main thrust but we're talking about finality so if you acknowledge as i think you have to that your you judge motion effectively throws gillette out of court and we turn the court's attention to the supreme court case of idle wild bond beotch litter corp footnote two of that decision states quote the court of how is mr gillette effectively out of court his claim still are there she didn't say he doesn't have claims she didn't touch that she didn't say he's not entitled to those other kinds of relief she didn't touch that so i don't understand how that footnote from my wild meets or addresses the concern trying to get you to grapple with there are claims for relief they still exist and the court hasn't gotten to those so under the definition of twelve ninety one i'm struggling to understand how that's final now maybe you've got some exception of twelve ninety one we'll talk about that but under twelve ninety one how is this a final order  the nine prison release release order please relieve a purely incidental that the main thrust of the of the case will hold hold on that i thought i thought they were the crux of the matter because here you've got ongoing litigation about the conditions of confinement in this prison rags and your client claims that he's being held unconstitutionally because of heat and other issues right rox so the federal district judge has the put the district judge has the power does she not to remedy those let's assume for the sake of argument that they are unconstitutional conditions of confinement they could be remedied by order of court right in theory i would say yes all right then and then he's made whole except he says well i don't want a nice clean prison cell i want  the construction or amendment of the current facility maybe even just one cell just for this this gentleman and he would need to be transferred well vetted i would think that theoretically that's possible although i think based upon the dangerous there's no inappropriate play or restrictions that he's not getting that's a health and medical treatment so to say that you could fix the cell perhaps you could but you have to fix everything that goes into how he's being an unconstitutional to sillett and i agree with you but but this judge has the power to fix those things if she so chooses if she deems it's it's appropriate in this case and she hasn't been given the chance to do that is that right well i i would submit because you're saying look we don't even want to be here you're saying we don't want to litigate our case in this venue we don't want this one judge we need a three judge panel yes because but the one judge hasn't been given the chance to remedy the unconstitutional conditions that eula well you're almost presuming that she she couldn't it's too high the hill to climb and you know you need to get a different tribunals to to do it i think when you look at the it you are the master of the complaint you meaning your client master the complaint here i mean you didn't have to plead this with multiple claims and multiple forms of relief sought but you did which you did so let's assume for the sake of discussion that we thought it wasn't final and moved to collateral or her how is this some something that is completely separate from the merits this  r as we've just been talking about appears to go to the merits appears to be all tied up with the merits argument that this is an eighth amendment violation violating facility how can you make the argument that we're dealing here with this as a matter that is completely separate from the merits i would submit that the composition of the court to entertain the case is entirely separate from their relief whether my client gets relief in full or in part test as i understand it for completely separate is that you could deal with that order without dealing with the merits but since the merits here since the way you decide whether to get a three judge panel is to make a prime aphasia showing  of things which if i understand it right actually go to the merits that is that you have something that violates the them hunt meant right that would warrant a release how is that how could we so would you agree then that if it if it is tied to the merits you can't make it under the collateral order doctrine right and so then we're back to twelve one you want and asking ourselves whether it's final unreviewable wh think i think the house would be if you if it's i would think that the two are mutually exclusive but if you're either in the told ninety one because it's not tied not to because it is tied the merits or it's not tied to the merits and then your clowder order  versus state board of elections which discusses why a three judge panel is needed because congress has determined that three just courts are desirable involving confrontations between state and federal power or in circumstances involving potential for substantial interference in government ministration that is of the highest order that would would fall under the third part of the clatter order doctrine and as a result this court would have jurisdiction to review you don't have a lot of time left you want to just touch on good morning may please the court i'm kimberly sauls very assistant attorney general here for the territory of the virgin islands today and as you know from our brief we believe there are no grounds for jurisdiction in this matter we are arguing that it is in fact a final order under six in twelve ninety one and that the effect of section twelve ninety one is to disallow any appeal from a decision which is incomplete and that is clearly what we're dealing sorry it seems quite clear in this case that it's not a final well let's go with what your have siri argued you know yeah it's true i put other things my complaint a lot of people do but this is really the crux of it doesn't matter  the fact that there are so other things that may not be his main focus so out there absolutely and it matters because many also if you go into that clutter order discussion because it's completely review but that we're dealing here with a case that has strad on for three decades and which the virgin islands according to the plaintiff and according to the reports looking at the progress since the two thousand and thirteen order indicate minimal progress what fourteen percent some like there over about three years i mean at this rate if you assume a linear progression there might be compliance and another couple of decades i mean there is this really the circumstance where the federal courts and the prisoners are supposed to wait fifty years for the for the when she was issuing her order and well in this case in two thousand and thirteen she said that she seen positive strides and therefore that's why she believed that the territory needed more time to comply but i think most of the relief that he has requested can be ordered while keeping him act golden grove what was that when we look like i know you're not planning on losing on the merits but but consider the possibility you might what would that order look court found that many of his counts were particular to the plaintiffs they were personal they had to do with his particular mental health it may just involve getting him a doctor that he hasn't seen i don't know the particular merits of this case because we haven't gotten there the prism litigation and sent well i'm not sure that's a helpful answer to you because if they're being addressed through the prison litigation that it might take you know until tech days are what it is a previous order that is in effect and even though the earlier worse are not legally operative that they are that because they are not legally operative they are irrelevant i mean there is there's the fact that a twenty thirteen or superceded and replaced earlier orders mean that undergoing twelve years of reform and the form pyar to that and they said that was a case where a reasonable amount of time had existed and therefore they  panel was warranted but and you do look at the entire history that is correct that is what they said however that case didn't involve the terminations of prior orders under the p l r a as this case does and that's question i'm asking you to address there was there was a terminations of the prior orders in the institution of a new order that's clearly a legally significant event but even though that's legally significant event if as you just acknowledged were to look at the whole course of the problems at the prison then we're not talking about a three year problem we're talking about something that's in excess of three decades worth of problems and which all repeat if the most recent report at least the most recent report that you guys dealt with this is accurate you're not even a fifth of the way through progress on that and  if you assume linear progression there that means it's in the it's decades out yet to fix this probably i guess that case is all strong you could say parolees would be like twenty thirty if my math is right so the question is at what point is is anough enough and the district court is under some obligation to say you've had enough time you've had decades of time according to the dis we're not there yet and golden globe but i believe that the district court came to that conclusion because after reviewing all the previous orders they were found to be to not meet the p l r a narrowness requirements and once they're terminated she felt the obligation to give the territory and i believe rightly so a reasonable amount of time to comply with this new more narrow consent decree around but this is a really long time well your honor all due respect this is the virgin islands everything takes about it that's true not trying to offer any justification but it is in fact true i have lived here for twenty years and everything takes a really long time and and that all the constitution doesn't make accommodations for parts of the country that operated different speed that's not your argument is no your hon however the district court i believe properly found that if you're looking from twenty thirteen under a new consent decree which now does and which no longer violates the p l r a as she found then the territory should be given a reasonable amount of time in order to comply with this new more narrow consent what is a reasonable amount of time which one of you give us some comfort that we wouldn't be back here in two years or three years hearing the very same thing or can you do that i don't feel comfortable doing that i believe it will depend on the special masters reports what kind of compliance is happening where has there been progress or hasn't there been progress there's an awful lot of  subjective factors to decide i guess your point there is that that's not this case because this is an individual case that that the whole issue may well back be back before the trial court in our court in conjunction with the class action litigation  now in this in this case you do concede at page nine of your brief that quote the possibility still exists that the district court will require a three judge panel to be formed according your brief there under what circumstances might the district court still enter in order convening a three judge court depending on the decision in the merits of the case it still exists that the court can at any point in time tape decide that it helps if this litigation continues for another two years that the reasonable time limit has in fact an expired territory is not complying with a new consent decree and therefore a th appropriate in this case according to the two prong parts of the next step in that scenario would be this this judge would find that mr gillette was being held unconstitutional lee and that there's just no hope of of fixing that so the only answer is release but release would have to be ordered by the three judge court yes although something i didn't raise in my brief because the district court specifically didn't address it in footnote four the judge said that she was not going to address the actual definition of a prison release order because she didn't find that this case met the other two prongs i find it curious that the definition of a prison release order specifically says the release of prisoners plural as opposed to one so quick bangui i'm not convinced this applies at all are you suggesting that a single prisoner could not as a matter of law could not be entitled to three to fail by showing support for there is none there isn't i not that i can find i used research the definition of prison release order but prison r is defined and then they specific congress specifically used the word prisoners plural and i do believe this was officially respect to the twilight zone or dyleski doctrine this litigation is not impeded without this appeal the judge can go on to address all the merits in his complaint individually without the three judge panel  and as far as the platter order all three requirements must be met for platter order and that is just simply not the case this order is reviewable on appeal are you ok in particular that it seems quite clear  we believe the district court was correct in their decision with regard to the three judge panel and we also believe that this court does not  or thank you thank you full decade before the p l r a was in acted and the ninth circuit in gilmore b california footnote twenty five talked about you don't need to effectively forget or wipe the slate clean on what happened for the p l o was an acted and what is the meaning of the parties to the class action agreeing to a new consent decree right isn't the purpose of entering into that kind of an order not to say we we forget the past but this a we have a new beginning here some new baseline old against which to measure progress and that's the point of having to consent decree to have a new baseline for measuring progress isn't it in general i wouldn't take issue  so if that's the case how could it be wrong for us to look at that and say my measuring point begins at twenty thirteen and and that's that's where i'm taking the baseline and that's only been a couple years sirrah got to give him a little more time to deal with it well i would submit that this is my client wasn't a party to that case the litigant can can settle cases for whatever basis you know they  my client and whether he can get relief to the unconstitutional conditions otherwise you know my client would be at the whim of some other unrelated litigation this resolution of the power to transfer mr avila to a compliant facility you know that would not be either because that would be so even in the confines of the golden wrote about specialized medical care because there's a list of the power to order specialist medical care judge lewis does have the order as long as that deal that would be within the confines of goals said provide this kind of mental here health counseling for mr chill at and the prison said we can't do that we'll have to transfer men she said look i'm just telling you you need to provide a for population pursuant to a court order or would that be an independent decision by the virgin islands about how to address a form of relief ordered by the court to understand what i'm getting and i do understand it and i would i think two golden grove where he's not getting mental health treatment and that would be a prisoner release order i would like to know and if you go ahead you can tell us about your thoughts having motion i've either the same day or the day after i move because only a three judge court can enter a prison population reduction of prisoner release order and that's exactly what my motion plenary junction asked for converse lee if you know if the motion is granted i would fully anticipate the version as government