[00:00:05] Speaker 03:
Our final case for the day will be 23-2143, Knowlton v. Armeen.

[00:00:11] Speaker 03:
Council, please proceed.

[00:00:35] Speaker 02:
Good morning, Your Honors.

[00:00:36] Speaker 02:
May it please the court?

[00:00:38] Speaker 02:
Taylor Rahn, on behalf of the appellant in this case, present at council table, is also Deputy General Counsel John Emery of the Human Services Department for the State of New Mexico.

[00:00:49] Speaker 02:
Recognizing as the court stated, I am in control of my own time.

[00:00:52] Speaker 02:
I just want to alert the court that I would like to reserve some time for rebuttal.

[00:00:56] Speaker 02:
This case is before the court on a 36-year-old consent decree matter regarding the processing of health care, or rather food stamp benefits,

[00:01:05] Speaker 02:
for New Mexico citizens, and specifically we're here on the appellant's motion to dismiss for lack of subject matter jurisdiction.

[00:01:14] Speaker 02:
One of the arguments advanced in briefing on this case is that this court does not have jurisdiction to hear this appeal.

[00:01:20] Speaker 02:
This case over the 36 year history has been appealed several times, and previously this court denied jurisdiction over several appeals, however the instant appeal differs from those.

[00:01:32] Speaker 02:
In the motion to dismiss,

[00:01:34] Speaker 02:
The appellant explicitly argued that the court no longer had subject matter jurisdiction over the modified settlement agreement, which is itself an injunction or a consent decree.

[00:01:44] Speaker 02:
And the motion to dismiss explicitly requested that as relief for the motion to dismiss, the modified settlement agreement be dissolved.

[00:01:53] Speaker 02:
So this case is distinguishable from prior appeals.

[00:01:56] Speaker 04:
Well, it wasn't titled a motion to dissolve, as I recall.

[00:01:59] Speaker 04:
It is a motion to dismiss, and it included language.

[00:02:02] Speaker 04:
you are asking the district court to enter an order terminating the consent decree.

[00:02:08] Speaker 04:
But you can read that motion to say that's kind of a side language and you're asking that to do a lot of work here to invoke jurisdiction when, as you know, this court has very recently taken on appeals that have been filed and sort of laid the groundwork for how you could invoke our jurisdiction by specifically arguing for a motion to dissolve an injunction where you lay out the legal standard

[00:02:32] Speaker 04:
or you make specific arguments towards that specific relief requested.

[00:02:35] Speaker 04:
How do I read your motion to dismiss to follow what this court has instructed you to do to invoke our jurisdiction?

[00:02:44] Speaker 02:
Well, explicitly, the motion to dismiss requests that an order be entered dissolving that.

[00:02:48] Speaker 02:
And it's not a ten, it's an order dissolving that consent decree.

[00:02:52] Speaker 02:
And that's not a tangential or side portion of the motion.

[00:02:56] Speaker 02:
It is the purpose of the motion is to solve the injunction.

[00:02:59] Speaker 02:
In the 2009 appeal, this court noted that even if the case itself were dismissed, the court would retain jurisdiction to enforce the modified settlement agreement.

[00:03:07] Speaker 02:
We're not just asking for dismissal of the case.

[00:03:10] Speaker 02:
The case is no longer active, but actually dissolving the Conduct to Consent Decree and requesting that the court no longer has subject matter jurisdiction.

[00:03:20] Speaker 02:
This court has also stated that there is not a hyper-technical sense in the way that they must be pled and that it doesn't need to be captioned necessarily a motion for an order dissolving the injunction in order to invoke appellate jurisdiction.

[00:03:34] Speaker 02:
So while I recognize the court's point, the court's also referenced that there's more than one way to skin a cat, as it were, in terms of bringing this case before the court's order.

[00:03:42] Speaker 02:
And this is distinguishable from the previous appeals in this case where the court did not have jurisdiction.

[00:03:47] Speaker 01:
How should we be thinking about the district court's frivolity determination when we consider this appeal?

[00:03:53] Speaker 02:
Well, the court chose not to make that analysis in the original amended order.

[00:03:58] Speaker 02:
And it doesn't change the fact that the court denied the motion to dismiss.

[00:04:04] Speaker 02:
So to the extent that those are arguments that are raised by the class members on the appeal,

[00:04:09] Speaker 02:
Several of those arguments were not raised by the class in the briefing below and it became kind of after the fact briefing.

[00:04:18] Speaker 02:
So we would present to the court the argument that the reasoning doesn't control because the district court did not make that determination at the time of entering the amended order.

[00:04:28] Speaker 02:
And one of the arguments on appeal was that the district court erroneously compared

[00:04:33] Speaker 02:
The second motion, or that actually was filed first, but our motion dismissed that is the subject of the appeal to a separate motion which is not subject to the appeal even though the arguments were different.

[00:04:42] Speaker 02:
The district court can't retroactively adjust that error by now including additional written reasoning in its order finding the court be appeal frivolous

[00:04:53] Speaker 02:
However, we are prepared to address those arguments today to the extent this court finds some of those arguments compelling.

[00:04:58] Speaker 02:
None of them change the state's position on appeal that the district court's original order was in error and that the district court lacks subject matter jurisdiction over this case based upon the definition of the class.

[00:05:10] Speaker 04:
Am I right that you are only appealing the amended order of August of last year?

[00:05:15] Speaker 04:
Yes, Your Honor, you are correct.

[00:05:16] Speaker 02:
We are not appealing

[00:05:18] Speaker 02:
the district court's memorandum of opinion in order regarding the issue of class representative.

[00:05:22] Speaker 02:
So it is just the amended order on the motion to dismiss.

[00:05:24] Speaker 02:
The basis for that motion to dismiss is the definition of the class in this case.

[00:05:30] Speaker 02:
And that definition is not in dispute.

[00:05:33] Speaker 02:
It is quite clear.

[00:05:34] Speaker 02:
It is in the original order of class certification from July 1989, which indicates all present and future applicants to the federal food stamp program, Medicaid program, or aid to families,

[00:05:47] Speaker 02:
with dependent children program who have not or will not receive an eligibility determination or benefits under these programs from the New Mexico Human Services Department within the time limits imposed by the law.

[00:06:01] Speaker 02:
That definition of the class limits the class standing to those who are denied timely adjudication of their benefits, not all processing of the benefits.

[00:06:13] Speaker 02:
And one of the reasons

[00:06:14] Speaker 02:
that that has become moot and an inappropriate definition is that in 2020 the district court found the state was complying with all timeliness regulations.

[00:06:25] Speaker 02:
So recognizing in section two of the modified settlement agreement actually disengaged that portion of the consent decree and it is the state's position that that vacated the original standing in this case as defined by the class definition.

[00:06:41] Speaker 02:
recognizing that some consent decrees do include future plaintiffs as part of their definition.

[00:06:47] Speaker 02:
I wanted to clarify the argument in the briefing that it is because the court found there were no current violations of the timeliness requirements as addressed in section two of the MSA.

[00:06:59] Speaker 02:
That's what makes the future

[00:07:01] Speaker 02:
class members is speculative.

[00:07:03] Speaker 04:
Council, why are you relying on the class definition from 1989 when there have been several amendments and settlement agreements in the 2018 consent decree?

[00:07:13] Speaker 04:
Why doesn't that document supersede the class definition from 1989?

[00:07:18] Speaker 02:
Because it doesn't modify it anyway.

[00:07:19] Speaker 02:
Every consent decree since 1989 has adopted the same class definition.

[00:07:25] Speaker 04:
I think the 2018 consent decree includes a definition of who are the applicants

[00:07:30] Speaker 04:
And it can be read to say there's really not any dispute about who it applies to.

[00:07:36] Speaker 04:
But maybe what is now required in 2018 that the parties have agreed to, whether it's been satisfied.

[00:07:42] Speaker 04:
But you couldn't read that consent decree to say, again, who it applies to.

[00:07:47] Speaker 04:
It is contained right there within the document.

[00:07:51] Speaker 04:
And it's really not disputed because the parties have agreed to it.

[00:07:54] Speaker 02:
Well, the district court has also repeatedly stated that the class definition hasn't changed.

[00:07:58] Speaker 02:
So it's clearly not the intent of the parties in the 2018 settlement agreement, nor in the subsequent court orders that actually changed the definition of the class.

[00:08:07] Speaker 02:
In the court's most recent orders, in this case, we continue to cite that 1989 class definition in the orders relied upon by the plaintiffs.

[00:08:16] Speaker 02:
That is the operative definition of the class.

[00:08:18] Speaker 02:
And so it's submit to the court that it's inappropriate to kind of

[00:08:24] Speaker 02:
use ancillary evidence to change the class definition.

[00:08:26] Speaker 02:
If the district court or the parties wanted to amend the definition of the class, that would be done so explicitly and clearly rather than talking about who the consent decree applies to.

[00:08:38] Speaker 02:
The class definition has not changed.

[00:08:41] Speaker 02:
And one of the bases in the original motion to dismiss for dissolving the consent decree was the idea that perspectively applying it was no longer equitable.

[00:08:50] Speaker 02:
So while Rule 60B5 wasn't explicitly invoked in the motion dismissed, the concepts of future application were invoked.

[00:08:58] Speaker 02:
And this court has repeatedly stated, in these types of cases, consent degree cases in which a federal court is going to exercise oversight over a state court and agency and dictate local budget priorities and the operation of that agency, the court should be wary of extending that relief longer than necessary.

[00:09:16] Speaker 02:
The original class member's grievance and the definition of the class

[00:09:20] Speaker 02:
was timeliness, that issue has been remedied.

[00:09:24] Speaker 02:
And one of the court's more extensive discussions of that Rule 60B-5 case law is in Jackson v. Los Lunas County Program, which is 880, 3rd, 1176, 10th Circuit 2018.

[00:09:38] Speaker 02:
So while recognizing that wasn't the explicit basis of the motion to dismiss, it is articulated in the standards as far as further equitable

[00:09:47] Speaker 02:
Sorry, perspective application being equitable.

[00:09:50] Speaker 01:
Is there a separate Rule 60B motion in this case?

[00:09:53] Speaker 02:
There was a 60B6 motion, which is not appealed.

[00:09:56] Speaker 02:
It's not appealed.

[00:09:57] Speaker 02:
That's correct, Your Honor.

[00:09:59] Speaker 03:
So would it be your position that after the dismissal, partial, or otherwise, that claimants with claims that they were paid the wrong amount, that they were wrongly denied inclusion,

[00:10:17] Speaker 03:
in the benefit class or that they actually receive their benefits late, that those folks wouldn't have any relief under the consent decree.

[00:10:26] Speaker 02:
On individuals that receive their benefits, well, do you mean like on a monthly basis receive them late?

[00:10:34] Speaker 02:
I'm trying to clarify the question.

[00:10:36] Speaker 03:
Well, they didn't receive them in a timely fashion.

[00:10:39] Speaker 03:
I don't know that it's been narrowed down in the briefing.

[00:10:43] Speaker 02:
Well, Your Honor, it is specifically the eligibility determination or benefits within the time limits imposed by law.

[00:10:49] Speaker 02:
And that is part of what section two was dismissed.

[00:10:51] Speaker 02:
And so the class argued in the briefing that the operative portion, which is still alive, of the consent decree section three actually contains timeliness requirements.

[00:11:00] Speaker 02:
However, when you look at them, they're not specific timeliness requirements.

[00:11:03] Speaker 02:
They're either not timeliness requirements at all.

[00:11:06] Speaker 02:
They simply speak to events occurring concurrently, but not setting a separate deadline for that second event.

[00:11:11] Speaker 02:
Or they speak to interim events that the goal is the overall compliance with a 30-day processing.

[00:11:19] Speaker 02:
And that's actually been found compliant by the Corps in dismissing Section 2.

[00:11:22] Speaker 03:
So I guess I understood the dismissal as relating to timeliness with respect to processing benefit applications and maybe not reaching as far as you're saying it did as to these other things.

[00:11:38] Speaker 02:
all of the timeliness requirements in the consent decree were included in section two is the state's position.

[00:11:48] Speaker 02:
Just briefly before I reserve a remainder for rebuttal, last week the plaintiff filed, or excuse me, the police filed a notice of supplemental authority

[00:11:58] Speaker 02:
was procedurally improper as they were simply raising additional arguments that could have been raised in their original briefing.

[00:12:04] Speaker 02:
They were relying on documents in the court record that had been available for the entirety of the appeal.

[00:12:09] Speaker 02:
But even those additional arguments don't change the analysis because it simply notes that the consent decrees over the years have provided relief outside of timeliness, which is not disputed by the state.

[00:12:21] Speaker 02:
But it also confirms the argument that the class definition has not changed.

[00:12:26] Speaker 02:
I do want to answer all of the court's questions, but if the court doesn't have me right now, I'll reserve the remainder for rebuttal.

[00:12:58] Speaker 00:
Good morning.

[00:12:59] Speaker 00:
May it please the court.

[00:13:00] Speaker 00:
My name is Daniel O'Hallam, and I represent the plaintiff class in this case.

[00:13:05] Speaker 00:
The relief in this case protects New Mexicans who have very low incomes and who are in dire need of health insurance and basic food assistance, who apply to the state for these federal programs, and this case ensures that they receive those benefits as required by federal law.

[00:13:22] Speaker 00:
Every element of the consent decree, the various modified settlement agreements,

[00:13:27] Speaker 00:
is tagged to a particular statute or regulation, federal law regulating this SNAP program, Supplemental Nutrition Assistance, and Medicaid program, which provides health insurance.

[00:13:42] Speaker 00:
It is our position that the Court lacks jurisdiction over this appeal for the reasons that Your Honors have already suggested.

[00:13:51] Speaker 00:
The only thing being appealed here is the motion to dismiss.

[00:13:56] Speaker 00:
This motion

[00:13:57] Speaker 00:
did not say that it was asking to dissolve an injunction.

[00:14:02] Speaker 00:
It said in passing in one sentence that it wanted to terminate the

[00:14:07] Speaker 00:
consent decree.

[00:14:09] Speaker 01:
And that's not enough to meaningfully distinguish it from Hatton-Gonzalez 1, 2009?

[00:14:16] Speaker 00:
I don't think so, Your Honor.

[00:14:17] Speaker 00:
I think that if they were looking for that, they should have said it was a motion to dismiss and dissolve the injunction and comply with the requirements of 1292A1.

[00:14:27] Speaker 01:
But our case law says you don't have to use magic words, and I think that cuts both ways.

[00:14:31] Speaker 01:
So what in practice does that sentence seek?

[00:14:34] Speaker 01:
What relief in practice does that sentence seek so that

[00:14:37] Speaker 01:
if we understand it, as you advance it, it would not afford appellate jurisdiction.

[00:14:42] Speaker 00:
I think what they meant by that was that the court would lose jurisdiction to enforce this.

[00:14:48] Speaker 00:
And it's similar in that respect to the 2009 decision of this court.

[00:14:55] Speaker 00:
And what they're saying is, really, I mean, let's look at the basis of the motion to dismiss.

[00:14:59] Speaker 00:
The basis is that when the district court dismissed Section 2,

[00:15:04] Speaker 00:
for temporarily reaching timeliness.

[00:15:07] Speaker 00:
By the way, they're not in timely compliance today.

[00:15:10] Speaker 00:
But they were at that moment, so the court dismissed section two per the requirements of the settlement agreement.

[00:15:17] Speaker 00:
And I think that at that point, their position is the court lost jurisdiction to enforce this case, but the injunction continued to exist.

[00:15:27] Speaker 00:
And I think that that's all they were seeking.

[00:15:29] Speaker 00:
Had they been seeking

[00:15:32] Speaker 00:
dissolution, not only would they have used the language of 1292A1, I mean, they were basically admonished about this and it was the same counsel who was involved at that time, not this counsel arguing this case, but they would have used the language of 1292A1, first of all.

[00:15:50] Speaker 00:
Number two, as the district court found, they would have cited rule 60B5.

[00:15:55] Speaker 00:
as the basis for their motion to dismiss.

[00:15:58] Speaker 00:
They didn't do that.

[00:16:00] Speaker 00:
They filed their motion to dismiss under 60B6.

[00:16:03] Speaker 00:
And so it seems to me that this court does not have jurisdiction over this appeal.

[00:16:11] Speaker 00:
We also want to note, and I'm sure the court has seen attached to our brief, was the district court certification of this appeal was frivolous.

[00:16:20] Speaker 00:
And not only is it relevant for the court to take into consideration the district court's

[00:16:25] Speaker 00:
view of jurisdiction, and of course it is your call whether you have jurisdiction or not, but the district court outlined a pattern by the appellant of seeking appeals when there were crucial issues pending in the district court in an effort in the court's view to stall further consideration of this case.

[00:16:47] Speaker 00:
If the court decides it has jurisdiction and if it moves on to look at

[00:16:54] Speaker 00:
the matter on appeal, I'd like to direct the court's attention to the fact that the motion to dismiss is based solely on one issue, and it is that there was dismissal of section two of the consent decree caused the loss of all standing because they misinterpreted, in my view, and I'll explain this later in the moment, the class definition.

[00:17:24] Speaker 00:
That's it.

[00:17:26] Speaker 00:
On appeal, they raise a new issue.

[00:17:29] Speaker 00:
This issue is that there can't be a prospective class because of, they argue, standing requirements.

[00:17:41] Speaker 00:
And first of all, we'd like to argue, we'd like to point out to the court that this was not preserved below in the motion to dismiss.

[00:17:49] Speaker 00:
It is not in their docketing statement.

[00:17:55] Speaker 00:
It was abandoned in their reply brief.

[00:17:59] Speaker 00:
They argued it in their briefing chief.

[00:18:02] Speaker 00:
We presented an alternative argument, disputing with their position, and they didn't reply to it.

[00:18:12] Speaker 00:
If the court decides that this issue needs to be addressed, we would just simply point to the case law in this and the other circuits, supporting plaintiffs on the fact that

[00:18:26] Speaker 00:
class members is proper when you have a prospective injunction like the settlement agreement here.

[00:18:35] Speaker 03:
Would your position be that the Strickland case governs it?

[00:18:38] Speaker 03:
Excuse me?

[00:18:39] Speaker 03:
Would your position be that the Strickland case governs this?

[00:18:44] Speaker 00:
Yes.

[00:18:52] Speaker 00:
Finally on this point, the defendant's argument frankly doesn't make any sense because injunctive relief must protect future applicants who are injured by defendants continuing unlawful procedures.

[00:19:03] Speaker 00:
That's the purpose of a prospective injunctive relief.

[00:19:09] Speaker 00:
Next, we'd like the court to focus on the heart of their motion to dismiss, which is that the dismissal of

[00:19:21] Speaker 00:
Section 2 of the modified settlement agreement deprived the court of all jurisdiction.

[00:19:29] Speaker 00:
This class definition is not limited to timeliness.

[00:19:32] Speaker 00:
This class includes those who were denied benefits because of eligibility determinations by defendant to a process that violates federal law.

[00:19:43] Speaker 00:
It also includes those who receive incorrect benefit amounts as a result of a process that violates federal law.

[00:19:50] Speaker 00:
And it lastly includes those who fail to receive their benefits on time.

[00:19:54] Speaker 00:
And just as Judge Carson pointed out or asked when you asked the other side about would all those people now be without any remedy under the consent decree under their interpretation, the answer to that is flatly yes.

[00:20:12] Speaker 00:
Under their interpretation of the consent decree, all of those plaintiffs, all of those class members, and they are named plaintiffs in this case,

[00:20:20] Speaker 00:
all of them would be without any remedy here.

[00:20:23] Speaker 00:
The class definition was stipulated by the parties and approved by the court in 1990.

[00:20:31] Speaker 00:
And it is clear that both the class definition and the settlement agreement should be interpreted by the parties and the court's conduct over the years since then.

[00:20:45] Speaker 00:
It's not a static

[00:20:48] Speaker 00:
a position or definition frozen in time.

[00:20:53] Speaker 00:
We think that a fair reading of it supports our position on this and we know that both the defendant and the court have agreed with us for 30 years.

[00:21:03] Speaker 00:
Defendants stipulated to a class definition in 1989 and filed a joint motion to approve a consent decree in 1990.

[00:21:12] Speaker 00:
The joint motion is highly revealing about defendant's understanding of the class definition

[00:21:18] Speaker 00:
and the issues in the class from the outset.

[00:21:21] Speaker 00:
And we provided a copy of that document.

[00:21:24] Speaker 00:
It was not in either of the appendices provided by the parties.

[00:21:28] Speaker 00:
And frankly, the problem is it's not included in the docket, because the docket was scanned subsequently, and some documents just didn't make it into the court's docket.

[00:21:41] Speaker 00:
But it's there.

[00:21:42] Speaker 00:
It was filed on August 28, 1990.

[00:21:45] Speaker 00:
And it's clear if the court reviewed the highlighted versions that we supplied to the court, that as early as 1990, defendants understood that the class definition included the very people that we're talking about here, way beyond timeliness.

[00:22:01] Speaker 00:
And none of those people were removed from the class by the court's order concerning section two.

[00:22:08] Speaker 00:
In addition, something that is part of the

[00:22:15] Speaker 00:
the appendix, the court's order approving the consent decree.

[00:22:21] Speaker 00:
And there, what the court says is the benefits of this agreement run to the class as a whole and serve the legitimate purpose of providing a uniform, fair, and simple means by which a family in New Mexico may apply for AFDC food stamp or Medicaid benefits and receive a prompt, informative eligibility decision based on its need

[00:22:44] Speaker 00:
assistance.

[00:22:46] Speaker 00:
That language makes it very clear.

[00:22:47] Speaker 00:
It's not just timeliness that's at issue in this case.

[00:22:51] Speaker 00:
Furthermore, in 2008, the district court modified the settlement agreement on the motion of defendants and decided that after a year's negotiation, lowered compliance thresholds for

[00:23:11] Speaker 00:
defendants reaching compliance and exiting from this case, redefine the substantive requirements in section three, incorporated renewals, closely tracked CFR requirements, modified the case review process, and it's clear from the 2018 modified settlement agreement, second modified settlement agreement, that the class is not limited to simply those who fail to receive their benefits in a timely way.

[00:23:38] Speaker 00:
Thirdly, the court has repeatedly over the years issued orders mandating compliance with federal requirements other than timeliness.

[00:23:48] Speaker 00:
And in our brief and chief at pages 23 to 24, we have a long list of those docket entries, those orders over spanning this entire period, showing that the court has repeatedly issued orders implementing the consent decree as to issues beyond timeliness.

[00:24:09] Speaker 00:
Defendant argued in 2020 in his motion to remove section two of the consent decree that piecemeal dismissal of each part of the decree as defendant achieved compliance with it was proper and that the case should continue as to defendant's compliance with the rest of the decree that was not dismissed.

[00:24:30] Speaker 00:
And the defendants did not at that point in 2020 when they moved for partial dismissal of section of

[00:24:39] Speaker 00:
one section, they never argued that was going to deprive the court of jurisdiction and the case would end.

[00:24:44] Speaker 00:
They recognized that was not the case and they expressly argued that.

[00:24:51] Speaker 00:
The court asked them whether this was going to mean whether the court had to not dismiss

[00:24:57] Speaker 00:
part but had to wait until they complied with everything in the decree and then dismissed the whole decree that was specifically litigated.

[00:25:05] Speaker 00:
That was plaintiff's position at that time was that that court should not dismiss any one section.

[00:25:11] Speaker 00:
It should wait and dismiss the entire, and the court listened to defendants and dismissed just one part.

[00:25:19] Speaker 00:
There have been, since 2020, there have been at least two agreements with defendants on compliance issues.

[00:25:26] Speaker 00:
that do not involve timeliness.

[00:25:29] Speaker 00:
Timeliness was not dismissed.

[00:25:32] Speaker 00:
Timeliness remains an element of some of the requirements in section three of this decree, even if the court were to decide that section two was gone and those plaintiffs were in trouble.

[00:25:45] Speaker 00:
The fact is that timeliness is an issue in section three, and a number of elements also refer to it in a footnote five in our brief.

[00:25:54] Speaker 00:
Finally, I'd like to address the question of the lower court did not abuse its discretion.

[00:25:59] Speaker 00:
As the defendant argues, the district court in motion of its order, its amended order, denying the motion to dismiss, the district court specifically referred to its ruling in a companion motion filed by the defendants, its 60B motion.

[00:26:18] Speaker 00:
And in that other order,

[00:26:21] Speaker 00:
The court specifically says he disagrees with the defendant's limited definition of the class and rejects that.

[00:26:30] Speaker 00:
So he addressed the specific question of the motion to dismiss in this other order, and he referred to that in his motion to dismiss.

[00:26:39] Speaker 00:
And lastly, as Judge Bossman pointed out, in his order denying the stay and also certifying the appeal as frivolous,

[00:26:50] Speaker 00:
He articulates further the reasons why he believes he has not taken an action that would cause the dismissal of this case under Article 3.

[00:27:00] Speaker 00:
For all of these reasons, plaintiffs, appellees, ask this court respectfully to affirm the district court's decision and to deny this appeal for lack of jurisdiction and on the merits.

[00:27:15] Speaker 00:
And if the court has no further questions for me, I'll sit down.

[00:27:30] Speaker 02:
Thank you.

[00:27:31] Speaker 02:
In addressing the arguments made by the class council, there's a few points I wanted to reiterate.

[00:27:37] Speaker 02:
The first is that the 60B5 is not the only basis for seeking dissolution of a injunction.

[00:27:44] Speaker 02:
And so the idea that this had to be raised in that specific context has been rejected by this court's idea of there is no magic language that's necessary.

[00:27:53] Speaker 02:
And additionally, this is distinguishable from the 2009 appeal

[00:27:58] Speaker 02:
Not only because we aren't just asking for dismissal, there was an explicit request to dissolve the consent decree itself.

[00:28:05] Speaker 02:
We actually explicitly are arguing the court has lost jurisdiction to enforce the entirety of it, which was one of the reasons why the court found in 2019, the analogical appeal was, or 2009 rather, was inappropriate.

[00:28:18] Speaker 02:
I wanted to address the court's reference to the Strickland case.

[00:28:21] Speaker 02:
That did not involve a situation where there was only future plaintiffs.

[00:28:25] Speaker 02:
So for example, if I were to bring an injunction

[00:28:28] Speaker 02:
And I were to say, I'm worried that the police department might use excessive force on me in the future.

[00:28:33] Speaker 02:
There would not be a class without a reasonable concern about that future injury and or current individuals who are subjected to those unlawful conditions.

[00:28:44] Speaker 02:
You don't certify classes of just future without some beyond speculative nature of future harm.

[00:28:50] Speaker 02:
So that's why the court's finding that there was no current violations of section two, no current individuals who are receiving untypely processing

[00:28:58] Speaker 02:
moves the future perspective relief even though perspective plaintiffs can be included in class action definitions.

[00:29:05] Speaker 03:
But what about the idea that it's not speculative and that counsels alleged at least here today that you're out of compliance now, that you're not timely.

[00:29:17] Speaker 02:
Your Honor, that's simply an allegation that wasn't borne out.

[00:29:19] Speaker 02:
That's not an adjudication.

[00:29:21] Speaker 02:
There has not been a rescission or re-engagement of section two.

[00:29:26] Speaker 03:
Do you deny it?

[00:29:27] Speaker 03:
Yes.

[00:29:28] Speaker 03:
So you are in compliance.

[00:29:30] Speaker 03:
You are timely processing the applications.

[00:29:32] Speaker 02:
Yes.

[00:29:32] Speaker 02:
That is the state's position is today that we remain timely, Your Honor.

[00:29:37] Speaker 02:
And again, that brings us back to the idea of continual and perpetual federal oversight.

[00:29:41] Speaker 02:
If we've cured the original violation,

[00:29:45] Speaker 02:
that wouldn't continue to give the court oversight and perpetuity because at one point we were under a consent decree for failure to process these timely.

[00:29:53] Speaker 03:
What do you do with the argument where your opposing counsel says in 2020 you made the specific argument that it was okay to grant your motion to dismiss because piecemeal dismissal was appropriate and that the court could continue to enforce other parts of the agreement?

[00:30:11] Speaker 02:
subject matter jurisdiction cannot be waived.

[00:30:13] Speaker 02:
So even though the state has made and did make an argument that the court would retain jurisdiction over section three, at the time standing is a part of the subject matter jurisdiction of the court and can be raised at any time.

[00:30:25] Speaker 02:
Okay.

[00:30:30] Speaker 02:
Anything further?

[00:30:31] Speaker 02:
Nothing.

[00:30:31] Speaker 02:
Thank you, Counselor.

[00:30:32] Speaker 02:
You're out of time.

[00:30:33] Speaker 02:
Thank you.

[00:30:33] Speaker 02:
Thank you for your time.

[00:30:33] Speaker 03:
The case will be submitted and, Counselor,