question prep presented is whether the district court may keep jurisdiction of a class action settlement involving a state agency for long as it thinks it just an equitable the plain language of the parties agreement is an ambiguous the district court had jurisdiction for two years and could extend its jurisdiction for an additional year upon motion by the plaintiffs with a showing of substantial noncompliance with the particular exhibit to the settlement agreement first of all your honor where the district court erred is that the settlement agreement is plainly unambiguous there is absolutely nothing in big us about the jurisdiction language in the settlement agreement it very clearly said that the jurist that the district court retained this is a federal court with a state agency as a defendant retain jurisdiction for two years in three for three purposes and it specified in the very next sentence following the expression of three purposes in two years it's specified the very specific condition that must be met for the district court to retain or to keep jurisdiction for a third additional year the way that the district court interpreted the agreement essentially gives itself potentially indefinite jurisdiction limited soley by what it believes is just an equitable and the district court's interpretation is a strained one given that it ignored the provision of the third year of jurisdiction as the plate as the defendant pointed out below and in its briefs here there's no reason the parties would have chosen to limit the district court's jurisdiction to a third year if in fact the district court could keep jurisdiction for as long as it wanted with respect to the issue the department respectfully disagreed would disagree with that in it and i can i think it's certainly clear that what the district court said was it said if you read the entire sentence the final clause or as the court deems just an equitable doesn't seem to match with the beginning part of that sentence and i would would support the idea that that is a separate or that there's the first two that are attached they both have the same grammatical connection and then a freestanding or as the court deems your honor i would agree that my argument in my case would be harder if that sentence was the only sentence in the jurisdiction paragraph of the settlement agreement but the court but it isn't and the immediately the sentence that immediately followed that clause wasn't work was this one circumstance where the district court could extend its jurisdiction for an additional year so i would certainly concede that it's a harder argument i i don't agree that that the settlement agreement even with that one sentence would be  end it looks to the context of of the agreement as a whole trying to effectuate the intent of the parties and so the fact that there's this second sentence in that that jurisdiction clause that narrows the court's ability to keep jurisdiction for a third year indicates what the parties intent was with respect to the first sentence in frankly gives the first sentence a more natural i'm sorry the more natural reading in light of the second sentence is the defendant appellant here advanced in fact you know if even if the court looked at the issue of ambiguity in the way court it very clearly interpreted the agreement in the way that the department human services advance is advancing on appeal so i think if the court's looking for evidence of what the parties actually intended certainly did to the district courts original interpretation and it  noted in a footnote that that it could be read that way that it's order could be read that way but that it subsequently made clear that it didn't actually view that the language in the settlement agreement that way but if the court wanted to look at as close to the settlement agreement as possible what did the parties actually believe the department would direct the court to the district court in july two thousand and twelve ordered the first i believe the first order to speak to this question of the jurisdiction well first of all i'm not assumes that the court even reaches that question that it let's just say for purposes of this question that it's an ambiguous provision what have we got from your standpoint what with the court respectful you know what the court should really look at is you know if you would this would be should the court interpret the contract in a way that would allow a federal court to have essentially indefinite unlimited not unlimited but indefinite jurisdiction over a state agency for any reason it believed was just an equitable in the defendant's position is that there would be contrary to law which cited in its brief the horn case the elizabeth m case i mean the thing to remember about the settlement agreement is that it was about a single v h s facility it was about actions done by the department allegedly it was a settlement but actions alleged  s facility well what about the flip side of that so the the one absurdity you presented is the idea that the court would have perpetual jurisdiction just unfair reasons well what about the flip side of that if  federal court has a state agency in front of it given federalism concerns but the plaintiff a resident of facilities just like anybody else any minnesotan can sue it's government under section one thousand nine hundred three if they believe that there are some some if there's a violation of federal law and what i think is it to sort of address i think the practical concern that you may be getting at judge kelly is the plaintiffs have not brought a motion in years regarding alleged noncompliance and in fact you know is recently as as a march twenty seventh team the district court itself observed that you know so that they really think the court really thinks there's a lot of good things going on that are improving the lives of people and so i don't think it comes much as a surprise to either the district court or to the defendant in this case that nothing that there's been no concern  by motion raised by the plaintiffs what they're what i think the court might be getting at is you know they're the plaintiff spent a lot of time in their rip respondants brief talking about issues that are you know five six years old and if you look at the record in the last few years including looking at the district court statement march twenty seven thousand the district court pointed out that it's things are headed in the right direction and thanks to all the work of a lot of there was and is is the state pointed out in its reply brief the attorney the primary turning on the case who who i believe was negotiating with plaintiff counsel passed away several years ago but i think what's interesting about the plaintiff's declaration in this regard is what the plan is what the plaintiff's counsel does not say he doesn't say that he actually communicated that intent to anyone on the department human services side all he says is this is what i believe and that's insufficient under matters of under principles of contract law for parole evidence or to otherwise establish the mutual intent of the parties i the court the district court and dissipative final end of this litigation you know that we're just going on and on on and it goes by the plaintiffs interpretation in the district court's order it goes on and on and on as long as the district court believes it is just just an equitable to continue going on and on and on and there what happened was the defendant started raising with the district court that it did not have jurisdiction and it was after i think a couple of status conferences because the court holds i believe two or four status conferences a year in the case and you know finally said i'd like you to brief the issue of jurisdiction so it really isn't clear how the case since the district court does you know there to be fair to the district court it does it does say and several orders going back i believe years saying the time it's is come for this for the court and  presumably the court would at some point and it's jurisdiction and you've never your the department's never taken the position until now this this very view that it's over and it's done correct it's sort of conceded in  orders that the court has entered so the answer to my to that question i think is two fold your honor the first is a legal matter it doesn't respectfully it doesn't matter because the parties can't agree to waive the district court's jurisdiction or consent to it the second is you know for for years with the department human services tried to work cooperatively with the plaintiffs to address issues you've you've seen that in the record where there have been just for lack of a better term marathon conferences with the magistrate judge many conferences with the district court the court monitor to try to resolve some of the issues that concern the district court and you know the district it's some point the the department's services you know return to work for lack of a better term litigation mode and and raise the issue with the district court thank you i'll reserve my time for rebuttal give you a couple of extra minutes please the court counsel during the three years of undisputed post settlement jurisdiction that's december five two thousand and eleven through december of two thousand and fourteen the court the district court comprehensively discussed and worked with the parties on the settlements implementation and issues of noncompliance including ordering the department of human services to comply with the settlement providing specific directions to follow toward compliance which we believe da just ignored as you can see in the record which then forced the court to again and again address ongoing noncompliance and reiterate its prior orders to comply that's our implementation concerns with the settlement prior to december five two thousand and thirteen that's two years after the settlements approval as identified by the court an independent court monitor consultants and counsel many of which were admitted or uncontested by d h s s as well as hundreds of examples prior to december fourth two thousand and fourteen three years after the settlements approval which is the time period where d h does not dispute the court's jurisdiction if you look at our brief in section b one week we kind of cover this so during this three year time period of undisputed jurisdiction what's going on the parties are interacting with the court the independent court monitor the court consultants who are the executive director of the governor's council for developmental disabilities in the minnesota mn for developmental disabilities and issues concerning the settlement including many issues of noncompliance we're communicating through e mails through letters through requests through phone conferences meetings chambers conferences status conference isn't other dialogue and action including the court could joleon questions recommendations and ultimately it's orders directing d h s s to comply with the settlement agreement so why do i go through this because during the period of undisputed retained jurisdiction the court is in force in its orders including the final order approving the class action settlement agreement and the eighth circuit and in other circuits are clear that during a period of retained jurisdiction the court can enforce  orders so what did it do the court took measured steps it didn't just simply say i have jurisdiction forever it took measures st including agreeing with the lawyers on behalf of the parties who came to the court and said we will agree to a year of extended jurisdiction so d h as unlike their present position agreed to extend jurisdiction contractually during the period of retained jurisdiction another year and that three so we have a well documented well documented conduct on the part of department human services in failing to comply with the class action settlement forming the predicate for the district court's measured actions including his orders to comply with the settlement agreement during the time  the court appoints an independent court monitor dr david for a leader to deal with a myriad of issues dr for a leader was originally suggested by the department of human services as a consultant to be appointed for purposes of of interacting with the own stood committee which is a large committee that was formed in order to implement to develop and implement the almost dead planned pursuit of the homestead decision which affects not just the three hundred residents of minnesota extend a trip in options program would also tens of thousands of minnesotans who have been looking forward to that plan for a long long time  office on behalf of the settlement class was was directed and was involved in comprehensive meetings with the independent court monitor which is an arm of the federal court and we  fifth two thousand and twelve this is a tele pendants one fifty one document to fifty dash to wrote to the court monitor stating that the settlement class believes d h s s is in substantial noncompliance with the settlement agreement up we were sick and tired of the noncompliance and we brought this to the attention the court monitor we also we also notified the attorney general's office of our intention to bring a motion to enforce the court also ordered us to develop implementation plans because the court was was sick and tired of the noncompliance and the delay and and not complying with his with his prior orders it with in the light of what you're describing is noncompliance or at least perceived one could this go on how long could the court's jurisdiction remain over this particular settlement agreement under your version intil complian simply until compliance your honor but the court provided a road map including ordering a comprehensive plan of action which was originally filed with the court in a report by the court monitor on november twenty seventh two thousand and thirteen within the two years of undisputed jurisdiction and that contains evaluation criteria criteria i think one hundred four different criteria many of which the court than the beginning i don't want to stand here and tell this court that nothing positive has happened we have come a long way and done many good things together but but the compliance issue and the failure failure to do what the court in follow that road map to conclusion is at the heart of this issue that's why we spend a lot of time on the what has happened in terms of conduct over the years because it forms a predicate for the court's enforcement orders and it forms the basis for the court's decision that the jurisdictional provision at issue is ambiguous and it looked to the conduct of the parties after the settlement agreement and many of these things th as was doing in recognition of his jurisdiction including state in the court had jurisdiction including asking the court to do things for it and that became a very important aspect of what the court then did in terms finding the provision to be in big us and i do not believe under the clearly erroneous standard that the court has abused its discretion they looked at my declaration i am the single lawyer left from the original three lawyers that negotiated this agreement there were two from the attorney general's office one whom is deceased the other one is retired and me and i put in the record my declaration in which i stated what i believe was was the intent of the parties there we wanted this just an equitable provision in the jurisdictional section because of the multiple state agencies involved because of the administrat rulemaking that had to be done on this statewide relief that was negotiated between the parties and my believed then and my belief now is that the state what action in the numerous state agencies and all the other people involved have to work together to finish the job and that's why it's so important in this and this public interest institutional reform situation to handle it appropriately and let the district court and the court monitor and the consultants and the parties finish what they started so my motion for sanctions was was filed on october seventh two thousand and thirteen during the period during the two years of undisputed jurisdiction so when the when the department human services says below at the district level that we never filed a motion that's simply not true we filed a motion for sanctions there was a transcript on the motions for sanctions there's a member on of law in support of emotions for sanctions or motion is docket two thirty three it's referenced in our brief that twelve the memorandum is docket two thirty two it's exhibit are to my declaration in support of the motion to dismiss the appeal and we said this is the brief of thirteen the state defendants willfully and intentionally acted in substantial noncompliance with the settlement r and the court looked at that and looked at its own view of things in the court granted our motion but what did the court do the court ruled from the bench on november twenty fifth two thousand and thirteen within that two years of undisputed jurisdiction and then issued an order in december december seventeenth two thousand and thirteen during the three years of undisputed jurisdiction because the parties and the court agreed the jurisdiction could be extended by year and the courts audio i want to wait for these implement implementation plans that we asked the department of human services to provide and we want to wait for the independent monitors report so that the district court can be informed by the people that it put in place to help it make cogent decisions about this and that's what has been the roadmap the implementation plans which then turned into a comprehensive plan of action with evaluation criteria all of which was not just what was not objected to by the department human services media asking the wrong party here but what is the strongest evidence or information to suggest that this was that your position is not the position or the intent of the parties in other words with there any conduct or action or positions taken by either party that would have suggested to the district court that the department's interpretation was the accurate one i don't believe the record supports the department's services view in that regard your honor seemed to me that the district court didn't find much but i wondered if it was anything anything that either party and i can ask the department attorney as well but well i think they had their lawyers representing a state agency in the state of minnesota and we negotiated this deal and the just an equitable clause is in it is an independent clause it has a comma before in the disjunctive or and i don't want to get into the chicago manual of style and i really can't believe that we're standing here eight years after after this started in trying to parse the placement of commas but but that's what that's what this is about apparently but if i can leave with one point it's this these are people who are vulnerable who have been waiting for a long time for their justice and you just important to remember that they fashion in my point is that the motion to dismiss the main case is not properly before this court because the order from which d h has appealed is not a final order doesn't end the case in fact it keeps the court in the game to do what i have suggested lay out that road have department human services finish their job in partnership with everybody else on board it's not injunction they don't qualify under the collateral order order doctrine and it is important to recognize that the final order was the final of order approving the class action settlement agreement in december fifth two thousand and eleven not the august two thousand and seventeen order denying the objection to jurisdiction and the bull guard case from the seventh circuit which is nearest to sion reform case is directly on point and i encourage the court to take a look at our briefing on that issue on the case thank you thank you for your argument honour's with respect to but what i think the plaintiff spent a lot of time talking about during their part of the argument is this issue of of alleged noncompliance in you know i think what the record will show the court is that for years the department has been filing these reports on settlement agreement compliance issues on olmstead issues in the pla have for years not raised an issue and so it is certainly interesting i think that the plaintiffs continue to go back to two issues that are from five or six years ago but you know the i think perhaps the most one of the most interesting things i think counsel said during the argument is that that the district  until comply until there's compliance i think that was your question judge kelly at the beginning to to mr o'meara but that's actually not what the settlement agreement says the settlement agreement talks about it addresses this issue and requires the plaintiffs to bring a motion if they believe that there is a pattern and practice of substantial noncompliance and so what the district court and what the plaintiffs are doing by by creating this standard of needing to reach compliance is to not have any kind of fidelity to the actual compliance language in the settlement agreement itself and the it's certainly that's what the standard that that the plaintiffs have have articulated in response to the court's question should be is concerning and it's concerning because of what the supreme court said in the horn case and it's concerning because of what this court has said in the lisbeth m case you know this the district the product of an executive order of the governor of the state of minnesota creating a sub cabinet of commissioner level appointments in the state of minnesota and so if if the standard is compliance and and that's what the plaintiffs believe it should be that's inconsistent with the actual terms of the settlement agreement and it's inconsistent with federalism and the  first again is that as a legal matter it just the and as the district court pointed out in a footnote in its order it didn't look at the past issues of noncompliance because it just doesn't matter to issues of whether it retained whether it had subject matter jurisdiction but with respect to why the the department up frankly allowed the case to go on for the time period that it did i think it was about two years past december fifth twenty fourteen before first little over two years before first raised the issue was it had been working cooperatively with the plaintiffs it had been working cooperatively with with the court with the magistrate judge the held settlement conference i guess in what really settlement conference is conferences over days and days and  days to discuss issues of compliance issues i think even drafting putting a draft together of the states almost that plan and so there was this sort of sense of cooperation in the case went on too long in the department are i certainly are you suggesting and the other hand that the district court has constantly move the goal posts out into the future that you didn't want to think about when this whole thing started sure the district court did did move the goalposts in the sense that it that there was noncompliance the last time they did the report which was i think a couple years ago now but you also have the district court on record talking about what great progress the department has made an end and i think if i may or honor addressed the i think the concern that you have about you know what is the department just going to walk away from this you know the department's been in court many times on the record in talks about it's been headed but back to the district as you read the order if you had to predict how long said that they look at the they look at it effect of the order is that a final order is correct i think they call it practical finality or something like that but but yes that there really isn't any more final order that's going to come from the district court that would allow us to allow the department to get relief at this court