input application the supreme court in that case held that as long as it's long to have the practical effect of modifying the proposed consent decree there was jurisdictions just hear it and that's certainly consonant with the e e o c decision to modify a proposed consent decree you can actually appeal directly from that order and in fact in the carson decision it never reached the fairness hearing and then he indeed that's what plants objected to in the carson decision because they are paragraphs twenty nine we've already agreed to the remedy that would apply to those two institutions and secondly when the district court put the burden of proof and presumption on defendants that those two institutions should be included so in that with the application of injunctive relief any time the district court made a decision to include these institutions it necessarily means the application of injunctive relief and therefore   presidential value for rescue to carter purposes then everything flows from that because plaintiffs then would need to show a new constitutional violation at those two institutions since august of two thousand we know they didn't do that we also know that under the p r a the judge because litigation format the judge would have had to tailor unique remedy to address that particular constitutional violation we know that why we decided you know what is to these two institutions that we can't agree to let's just go ahead and exclude the flask and agree to disagree on it and the defense would bring a motion it was a strange procedure  bringing them into the class spain issues before the district court we knew that the plaintiffs in this case didn't have a single claim that had been granted allegedly adequate medical care at those two institutions and the complain took the settlement with the intent of trying to really improve care system wide if i just think that there are new constitutional violations and they want to bring them to us we certainly want to look at them and provide a remedy for this human institutions if if there is a significant problem that never happened in this case and that's where the parties disagreed and the paragraph eight the parts of what we can agree is where they this i mean in august of two thousand and that was no small feat i mean it's hard to explain that this court i don't i'm not aware of a single case where the department has managed to persuade special decision so that the partner knows that it has meaning when they actually comply i would say in this case under rule twenty three the burden did fall in place of the district court interpreted paragraph twenty nine to mean that the burden specially stated that while you've already agreed to the same remedy as to these institutions and their actual discordant paragraph eight we completely disagree about whether the institution should be in the class to which we had agreed to a remedy under paragraph twenty nine well once you once district court interpreted the stipulation to mean that we've agreed to the same remedy it is a cascade effect on the opposite side because of course we're going to be similarly situated because according to district court we had indeed agreed t burden of the rule twenty three to show you cost to tional violations and to show that should make no longer applies they never met that burden to rule twenty three they certainly didn't meet that burden on the rest of you to our purposes and on that  was not an injunction they appeal from it therefore they are precluded from appealing therefore there are precluded from relying on section twelve ninety two  that's the defendant's position then every class certification order that ultimately results in an injunction would be if i feel black the time that the classification order was made  the complaint and then we settled it and started this procedure where we filed the only thing that was really on file with the district court was the complaint and then we filed about nine months later  of the prisons and if you paragraph eight if you read it really carefully with some three of done but if i can emphasize a couple of points i know it's a little ambiguous but it's the parties agreed that this action shot me be maintained as a class action and that the class consists of all prisoners within the c d c this year's medical needs except those of pelican bay is that the parties disagree about whether the funeral institutions and i quote should be members of the class doesn't say they're excluded it says we disagree whether they should still be members of the class and then it says you know filed the motion and and the and the last sentence the motion not the stipulation the motion will not otherwise alter the burden of proof under rule twenty three or create create a presumption concerning their inclusion certainly that's true the motion didn't offer the burden and the motion didn't create a presumption but the stipulations first that they're included in the class that's why i agreed to the last sentence so you have the fact that you have thirty two prison we agreed on thirty or twenty nine of them that these prisoners were going to be it was going to be a class action on the basis of the allegations of the complaint and what the defendant once that judgment is final the race to the car that the time of the finale the judgment and one can sue after that based on new facts which we did class action so and only on that ground so i accept the fact that they can argue and that's why i settled it that they can argue that the the case on behalf of the medical care when i had information leading me to believe that the women's medical care was bad as well so we came up with this compromise shit and we have just agreement right that's why they're going to move to exclude this wasn't a motion to certify the class the class was already certified they moved to exclude these women from the class of litigation such that it would somehow undermine the plaintiffs the rest of the case and shift the focus from that from the rest of the plaintiffs to this small issue the district court made a finding that this would was not a major focus of the litigation because it involves only two out of thirty prisons that finding i think has to be measured by an abus discretion standard as does most of the other conclusions and i don't think you can say it's unreasonable of him to have found that it wouldn't be a major focus of litigation when it only involves one fifteenth of the of the subject matter o  the fairness hearing he's never presented it to defendants if he wants to enter into a settlement we would welcome it because we believe the remedy that you meet students will be significantly different than the remaining institution provided at the other stooges that i don't want to belabor you with how well that came to be but it is care's completely different than the care being rendered at the remaining institutions i do really want to persuade you wan jurisdiction it doesn't have to turn on whether they're fairness hearing impose the injunction at that moment it doesn't have to turn on whether the injunctive relief has actually been applied i know in the carson case