[00:00:01] Speaker 03: Case number 24-5144, Linda Martin, appellant versus Federal Bureau of Investigation and Cash Patel in his official capacity as director of the Federal Bureau of Investigation. [00:00:14] Speaker 03: Mr. Fromer for the appellant, Mr. Koppel for the police. [00:00:19] Speaker 01: Good morning. [00:00:20] Speaker 01: My name is Robert Fromer for appellant Linda Martin. [00:00:23] Speaker 01: This case involves a challenge to the FBI's forfeiture notices, starting with mootness, if I may. [00:00:28] Speaker 01: The district court correctly held that the putative class's claims were inherently transitory. [00:00:34] Speaker 01: But as we noted in last week's 28J, the court sequencing then got jurisdictionally tangled. [00:00:40] Speaker 01: It should have first granted the effectively unopposed class certification motion, and only then dismissed the class claims under Rule 12b6. [00:00:49] Speaker 01: Instead, it did the opposite, dismissed those claims without raising a class, and then denied the certification as moot. [00:00:56] Speaker 04: Could I just be clear? [00:00:58] Speaker 04: If the district court jumps to the merits and says the merits are unpersuasive, what's the problem [00:01:10] Speaker 04: would say, well, if I'd get granted class certification, the issue would be moot because there's no cause of action. [00:01:19] Speaker 04: I understand that procedurally, but I wonder in terms of substantively, how does it harm your client here? [00:01:31] Speaker 01: Well, the the miss ordering miss sequencing here meant that the district court arguably in dismissing the claims acted without jurisdiction because Linda Martin's individual claim. [00:01:42] Speaker 01: Everybody conceded was moot at the time of the decision. [00:01:45] Speaker 01: So at that point, the only thing before the court was putative classes claims. [00:01:49] Speaker 04: Well, the district court did say that the class action didn't take that as moot. [00:01:55] Speaker 01: You're right, Your Honor, and the court was correct in holding that the class claims fit under the inherently transitory exception. [00:02:04] Speaker 01: But once that happens, at that point, jurisdictionally, the only thing that could be before the court is the putative classes claims, which means you have to certify. [00:02:14] Speaker 05: You haven't raised a single argument in this court until a 28-J letter. [00:02:19] Speaker 05: suggesting there was any error whatsoever in how the district court handled the class action certification question, and in fact dropped a footnote affirmatively, not waving the issue, but affirmatively telling us to leave it, the district court's judgment of mootness as to class certification in place. [00:02:39] Speaker 05: So I don't understand why you get to now argue that the district court didn't do it right and didn't have jurisdiction. [00:02:45] Speaker 05: You made an affirmative choice to ask this court [00:02:49] Speaker 05: to keep that part of the district court's judgment intact. [00:02:55] Speaker 05: So we'll take you at your word. [00:02:57] Speaker 05: And then the only question is, do we have anything before us regarding Ms. [00:03:02] Speaker 05: Martin's allegations? [00:03:05] Speaker 05: And you just said everyone agrees that's moot. [00:03:07] Speaker 01: Yes, Your Honor. [00:03:08] Speaker 01: I would say at that point, the only thing that we were conceding is that the district court correctly held [00:03:16] Speaker 01: that the class claims, the putative class claims were inherently transitory. [00:03:20] Speaker 05: That's not what you said. [00:03:21] Speaker 05: You said, the government opposed class certification only as moot. [00:03:26] Speaker 05: If this court reverses and remands, and the only thing briefed to us that we could reverse and remand on are whether Ms. [00:03:34] Speaker 05: Martin's claims were properly dismissed on the merits. [00:03:39] Speaker 05: It, the court, should leave the trial courts ruling on mootness undisturbed. [00:03:45] Speaker 01: Yes, the inherently transitory exception. [00:03:48] Speaker 05: You just said the ruling. [00:03:50] Speaker 05: We don't review words and opinions. [00:03:53] Speaker 05: We review judgments. [00:03:54] Speaker 05: The last words of the opinion, if that's what you want to talk about, are class action certification is moot, and the judgment is the class certification question is dismissed as moot. [00:04:06] Speaker 05: And so if you wish to change a judgment, [00:04:10] Speaker 05: which sounds like you really want to do. [00:04:12] Speaker 05: You think the court lacked jurisdiction to do that. [00:04:15] Speaker 05: You need to brief that issue to this court. [00:04:19] Speaker 05: And one, footnotes virtually never sufficient to raise a merits argument, let alone to ask for a change in the judgment. [00:04:29] Speaker 05: And two, it's definitely not the place to do it when your footnote says, leave the district court's ruling in place. [00:04:38] Speaker 01: I understand, Your Honor. [00:04:40] Speaker 05: I think that's true. [00:04:40] Speaker 05: Then that's we don't have that issue before us. [00:04:44] Speaker 05: And you just agreed that Miss Martin's claims are mood. [00:04:48] Speaker 01: Well, Your Honor, I respectfully disagree about what we meant in that footnote. [00:04:53] Speaker 01: We were specifically talking about the- They did not come with a decoder ring. [00:04:56] Speaker 01: I understand that, Your Honor. [00:04:58] Speaker 01: And I would note that given this jurisdictional issue, both the 10th Circuit in Medina and the 2nd Circuit in Milan is excused forfeiture. [00:05:06] Speaker 01: And I agree with you that we didn't raise this, but- This is more than forfeiture. [00:05:09] Speaker 05: This is an express argument to leave the trial court's ruling, and this is both the end of its opinion and its judgment, on moodness. [00:05:18] Speaker 05: undisturbed. [00:05:21] Speaker 05: As the class certification, that's the opening line of the footnote, your honor. [00:05:24] Speaker 05: So that's more than just not thinking to say anything. [00:05:28] Speaker 01: I'm I'm I'm the only thing I can say, your honor, is by that we meant the inherently the district courts ruling that the class claims were inherently transitory. [00:05:39] Speaker 01: That's the only thing we're talking about there, not the overall. [00:05:42] Speaker 01: I mean, at that point, if we were agreeing that both [00:05:45] Speaker 01: that the court properly denied the class and dismissed the claim, we wouldn't be here. [00:05:50] Speaker 02: I mean, didn't the district court here rule in your favor by saying that the class question was moot? [00:06:00] Speaker 02: I mean, it's effectively, I mean, it's in your favor because it's ruling was that the claims were inherently transitory. [00:06:13] Speaker 02: Reading your footnote in light of what the district court wrote, I understood you to be saying that you would leave that intact. [00:06:20] Speaker 01: Yes, Your Honor. [00:06:21] Speaker 02: And so it wasn't an adverse ruling on whether it was inherently transitory. [00:06:26] Speaker 02: It was a ruling about if her individual claims are moot, the class claims are nonetheless not moot because of inherently transitory. [00:06:34] Speaker 02: So that was a ruling in your favor from which you are not appealing. [00:06:38] Speaker 01: Yes. [00:06:39] Speaker 01: Yes, Your Honor. [00:06:39] Speaker 02: I think that's not very clear in your brief. [00:06:42] Speaker 01: I apologize for that, Your Honor. [00:06:45] Speaker 01: Yes, but I would note that this goes back to the jurisdiction of the court in reaching the 12b6 without properly surveying class. [00:06:54] Speaker 02: So are you saying now that the district court didn't have jurisdiction to do that? [00:06:58] Speaker 02: Because having concluded that the claims are inherently transitory, it then has before it the class claim. [00:07:07] Speaker 02: And part of the class claim is Ms. [00:07:11] Speaker 02: Martin's [00:07:12] Speaker 02: claim as the lead plaintiff. [00:07:15] Speaker 02: And so it is often the case that district courts decide dispositive motions before deciding class certification motions. [00:07:23] Speaker 01: I agree, Your Honor. [00:07:25] Speaker 01: The key difference here is that now let's say Ms. [00:07:29] Speaker 01: Martin's individual claims were alive throughout that period. [00:07:34] Speaker 01: Then yes, the court could definitely have reached the 12b6. [00:07:37] Speaker 01: and then denied certification as moot. [00:07:40] Speaker 01: The issue is that everyone, the court, opposing counsel, agreed that her individual claims were moot, which means at the point that the district court said that these are these class claims are inherently transitory, [00:07:52] Speaker 01: There's no class in front of the court. [00:07:55] Speaker 01: There's no entity by which you can assume jurisdiction. [00:08:00] Speaker 01: And then rules say, oh, these class claims, oh, they do state a claim, or they don't state a claim. [00:08:06] Speaker 01: It's until that point. [00:08:07] Speaker 01: That's why the 10th Circuit in Medina, even with the forfeiture, and again, I understand, Your Honor, even with the forfeiture, recognized that this went to the court's subject matter jurisdiction. [00:08:18] Speaker 01: and basically vacated and remanded. [00:08:21] Speaker 02: So what remedy are you now seeking? [00:08:23] Speaker 01: I think there are two. [00:08:24] Speaker 02: Are you not seeking reversal of the motion to dismiss? [00:08:28] Speaker 01: Well, Your Honor, I think that there's. [00:08:30] Speaker 01: On the merits? [00:08:31] Speaker 01: I think if this court shares the 10th Circuit and the 2nd Circuit's jurisdictional concerns about whether that dismissal is even [00:08:40] Speaker 01: jurisdictionally in front of you properly, then I think the best thing to do would be to follow the 10th and the 2nd, just vacate, remand, have the court just redo everything in the correct order, the correct sequencing, and then there would be a live 12b6. [00:08:57] Speaker 05: Now, if the court doesn't- You haven't asked for vacatur. [00:08:59] Speaker 01: What's that? [00:09:00] Speaker 05: You haven't asked for that relief. [00:09:02] Speaker 05: Well- You haven't asked for that relief. [00:09:04] Speaker 05: You haven't asked for vacature of the district court decision. [00:09:06] Speaker 05: You haven't asked anywhere in your briefs for us to follow these 10th or second circuit cases. [00:09:14] Speaker 05: The other side hasn't had a chance to brief it. [00:09:17] Speaker 05: You've asked for a reversal and you've asked, honest to goodness, for a reversal dismissing Linda's claims, not even the class claims, Linda's claims. [00:09:31] Speaker 05: But you agree they're moot. [00:09:32] Speaker 05: I don't know how on earth [00:09:34] Speaker 05: we should reverse decision dismissing Linda's claims because those are definitely moot. [00:09:41] Speaker 05: So I just, I don't know. [00:09:43] Speaker 05: I'm not familiar with the practice in this court of not taking briefs at their word when they say to leave something intact and then giving different relief than is requested in the blue brief and sending something back based on an argument never presented anywhere [00:10:05] Speaker 05: in any of the appellant's briefs. [00:10:08] Speaker 05: I mean, you're asking for an awful lot. [00:10:11] Speaker 01: I understand, Your Honor. [00:10:12] Speaker 05: And we get no adversarial presentation. [00:10:15] Speaker 05: You're like, well, here's these other circuits that have done this thing. [00:10:18] Speaker 05: But we don't have adversarial briefing on whether what they've done makes sense. [00:10:23] Speaker 05: And we don't have adversarial briefing on how we have treated forfeiture or waiver, let alone an affirmative argument to leave [00:10:32] Speaker 05: a ruling intact, it's really hard for me to know how I'm supposed to rely on those other circuit decisions when there's no adversarial briefing on it. [00:10:43] Speaker 01: Well, I understand that, Your Honor, and I wish I could go back and change some of the briefing, but to make things a little bit more clear. [00:10:51] Speaker 05: All of the briefing, because the brief is all about Alinda's claims. [00:10:55] Speaker 01: I respectfully I did I agree that there was some there might be some confusion about the specific language that being used, but we were talking at that point in the briefs about the viability of a due process. [00:11:09] Speaker 01: a due process challenge to the notice provisions containing the FBI notices. [00:11:14] Speaker 05: And I would say if this court is... Where do you say it should dismiss anything as to the class? [00:11:18] Speaker 05: Where do you argue it's a class? [00:11:19] Speaker 05: Because I just see the operative actor in every one of your arguments is Linda. [00:11:25] Speaker 05: Linda. [00:11:25] Speaker 05: I'm sorry to use her first name. [00:11:27] Speaker 05: I'm following your own. [00:11:28] Speaker 05: I would call her Miss Martin. [00:11:29] Speaker 05: But your conclusion is as to dismissing Linda's claims. [00:11:35] Speaker 05: The sentence before that in the brief is about Linda's claims. [00:11:39] Speaker 05: Every turn you go, it's about Linda's claims. [00:11:42] Speaker 05: I mean, Linda must show up in here many, many, many, many times. [00:11:47] Speaker 05: And I don't see you talking about the potential class claims or potential class claims. [00:11:53] Speaker 01: Well, I understand, your honor, in that situation, we were and I apologize for any imprecise language. [00:12:01] Speaker 01: What we're talking about there is the only thing that was before the district court at that point were the putative class claims. [00:12:07] Speaker 01: And that's what he did. [00:12:09] Speaker 05: There are essentially two entities for us or before the district court. [00:12:17] Speaker 05: Ms. [00:12:17] Speaker 05: Martin's claims. [00:12:19] Speaker 05: and the class claims. [00:12:20] Speaker 01: Yes. [00:12:21] Speaker 05: So it doesn't seem precise. [00:12:22] Speaker 05: It seems like a choice was made. [00:12:23] Speaker 05: A choice was made in the briefing to frame this all in terms of Ms. [00:12:29] Speaker 05: Martin's claims. [00:12:32] Speaker 01: I understand that wasn't the intent, Your Honor, but I do understand. [00:12:35] Speaker 01: I would say that in that situation, the easiest [00:12:40] Speaker 01: We want, obviously we care about this issue. [00:12:43] Speaker 01: Linda cares about this issue. [00:12:45] Speaker 01: This is an important issue that's affecting thousands of people nationwide, and it's happening every single day. [00:12:49] Speaker 01: And to the extent that we didn't present the arguments in such a place where the court can rule on the merits, and then we would just ask that we be sent down, because this report- It has jurisdiction. [00:13:04] Speaker 05: How can we do that? [00:13:06] Speaker 01: Sorry, Your Honor? [00:13:07] Speaker 05: We don't have any jurisdiction. [00:13:09] Speaker 05: then we just dismiss the appeal. [00:13:11] Speaker 05: If we don't have jurisdiction over Ms. [00:13:14] Speaker 05: Martin's claims, do you agree? [00:13:17] Speaker 01: Yes, that's correct. [00:13:17] Speaker 05: If we don't have jurisdiction over this whole procedural argument you want to make about what should have been done with the class, because there's no class. [00:13:27] Speaker 01: That's true. [00:13:28] Speaker 05: I mean, that's what your cases you have cited to us say. [00:13:31] Speaker 05: We can't do anything. [00:13:32] Speaker 05: There's no class. [00:13:34] Speaker 01: I understand your honor. [00:13:35] Speaker 02: And that's why I think Mr. Farmer. [00:13:37] Speaker 02: I mean, I think to start with some sort of theory about what the district court did here and the district court says that Miss Martin's individual claims are moved. [00:13:49] Speaker 02: And then it has before it to, and then it says there's the inherently transitory exception to mootness applies. [00:13:57] Speaker 02: And so it seems at that point, the district court has two options. [00:14:00] Speaker 02: It can rule on the 12 v 6 motion, or it can certify the class and rule on the 12 v 6 motion. [00:14:06] Speaker 02: And once it's decided that the inherently transitory exception to mootness applies, why can't it go in either direction? [00:14:16] Speaker 01: It can't go in. [00:14:18] Speaker 02: And why do you think it can't go in either direction? [00:14:22] Speaker 02: Because your briefing assumes that it can go in either direction, it seems to me, which is why it addresses the merits. [00:14:30] Speaker 02: And so I feel like not only is the briefing confusing, but I'm not sure I understand why you are arguing what you are arguing here with respect to what the district court did. [00:14:42] Speaker 02: And therefore, what is before us on appeal? [00:14:47] Speaker 01: Before the district court, everybody agreed there. [00:14:50] Speaker 01: Linda Martin's individual claim was moved. [00:14:52] Speaker 01: The court said that the class claims were inherently transitory. [00:14:57] Speaker 01: And the problem is at that point, because that was the only entity with life or potential entity with life claims that that class that legal entity need to be raised in order to in order for the court to pass on the legal sufficiency. [00:15:10] Speaker 02: That's not true in a case where, for instance, if the district court had not found that Miss Martin's claims were moved. [00:15:18] Speaker 02: it could decide either to first certify the class and then consider the merits or consider the motion to dismiss first. [00:15:27] Speaker 02: So why is the mootness of Ms. [00:15:31] Speaker 02: Martin's claims, why does it change that optionality? [00:15:35] Speaker 02: After the district court has determined that a mootness exception applies, [00:15:39] Speaker 02: So that decision may be wrong, you know, that's a separate question. [00:15:44] Speaker 02: But if we assume that the inherently transitory exception applies or some other exception applies, why are the same two choices not still before the district court? [00:15:54] Speaker 01: Well, because, Your Honor, at that point, if Lyndon Martin's individual claims are still alive, then that would be available. [00:16:05] Speaker 01: But because her claims were conceitedly moot at that point, there was simply no legal entity under which the court could assume subject marriage jurisdiction to then reach the merits of that entity's claim. [00:16:19] Speaker 02: So why is it impermissible? [00:16:21] Speaker 02: I mean, in effect, although the district court's reasoning may not be entirely clear, it seems the district court sort of assumed that a class could be certified and then reached 12b6. [00:16:32] Speaker 02: So why is that? [00:16:32] Speaker 02: I mean, district courts do this all the time, where they decide a motion to dismiss rather than go through the process of certifying a class. [00:16:41] Speaker 01: I would understand that, your honor, and I think if the end of the district court's judgment had done that, if it had gone and said, these claims are inherently transitory, I'm going to provisionally certify the class, I'm then going to dismiss the class claims. [00:17:01] Speaker 01: that's under 12b6, and then I'm going to decertify the class or something like that. [00:17:05] Speaker 01: That would have been procedurally proper. [00:17:06] Speaker 01: But instead, what the district court did is it expressly denied the class motion certification, which means there was never a class. [00:17:14] Speaker 05: There was never even a provisional class. [00:17:19] Speaker 02: No, it didn't deny class certification. [00:17:22] Speaker 02: It said there were moot because of the 12b6. [00:17:26] Speaker 01: Well, I mean, it says it denied it as moot in late of the 12 B six, but I think about judicial economy here. [00:17:33] Speaker 02: So we would remand under your new view for the district court to certify the class and then presumably just reach the same decision on the merits. [00:17:44] Speaker 01: Yes. [00:17:44] Speaker 02: And what would be the purpose of that? [00:17:46] Speaker 02: Well, I think that at that point, what would be gained by that? [00:17:50] Speaker 01: Well, I think this court can, if this court isn't concerned about jurisdiction, can reach the stated basis for the denial of the class certification, which was the district court's ruinous views on the merits. [00:18:03] Speaker 01: And I agree with you in the sense that sending something back down to get rearranged and then sent back up, [00:18:11] Speaker 05: I mean, the important thing here, the reason there's a real difference. [00:18:16] Speaker 05: The constitution and article three, because finding that claims [00:18:20] Speaker 05: are inherently tyrannizatory doesn't mean that there's a party before the court. [00:18:25] Speaker 05: And I understand your point to be drawing on these cases, that having said that Ms. [00:18:31] Speaker 05: Martin's claims are moot, the court couldn't, had no jurisdiction to address the merits until it actually found another party before it. [00:18:43] Speaker 05: whose claims we know would then not be would then under the district courts there at least be inherently transitory. [00:18:49] Speaker 05: So it had to have a class or maybe a new name plaintiff or something, but had to have a body before that a jurisdiction before it had any authority to address the merits. [00:19:01] Speaker 01: That's exactly right. [00:19:02] Speaker 02: You're now pursuing an appeal for which you believe there's no jurisdiction. [00:19:05] Speaker 01: I wanted to give the court one of two paths. [00:19:09] Speaker 01: I think the first path, the jurisdictional path, the path that was followed by the 10th and the 2nd makes the most sense given the sequencing order and the fact that that sequencing order [00:19:20] Speaker 01: affected the district court's subject matter jurisdiction. [00:19:23] Speaker 01: If the court doesn't share that concern, then I'm happy. [00:19:27] Speaker 05: How did the 10th Circuit Court have jurisdiction, 10th or 2nd have jurisdiction if there was no class yet certified and the name plaintiff is out on moot? [00:19:41] Speaker 01: Because in both those cases, the district court dismissed the class claim just without reaching the class certification issue. [00:19:49] Speaker 01: And then, as Garrity says, a putative class representative has standing to appeal the denial of class certification, which is exactly what we've done here. [00:20:02] Speaker 01: Even when their claim is moot? [00:20:04] Speaker 01: Yes, even when their claim is moved. [00:20:06] Speaker 01: No, the whole point is that there's nothing for us to decide other than... Not Linda Martin as an individual plaintiff, Your Honor, but Linda Martin as a class representative. [00:20:16] Speaker 01: And what the Supreme Court made clear and guarantee is that even if [00:20:22] Speaker 01: uh you are dismissed and your individual claims are moot but you want to serve your your position as a class representative you have the jurisdiction you have authority to appeal that class cert denial and that's exactly what we did here and that's what happened that's what you're arguing now your 28a letter that's what your 28a letter is advocating well we we've always we always ever since uh the change in uh the federal rules of appellate procedure any appeal of a judgment also [00:20:51] Speaker 05: appeals all the collateral or all the orders are subsumed within it so we that's absolutely you're absolutely correct about that my question is we then expect the appellant to decide which issues are raised to us yes your honor you have more questions rogers do you have more questions i'll give you a couple minutes on rebuttal okay thank you [00:21:31] Speaker 00: Good morning, Your Honors. [00:21:32] Speaker 00: May it please the court? [00:21:33] Speaker 00: I'm Josh Koppel for the FBI. [00:21:35] Speaker 00: I'd like to start with a jurisdictional issue that you were just discussing with opposing counsel. [00:21:40] Speaker 00: I just want to take a step back and explain exactly the point here. [00:21:45] Speaker 00: So in an ordinary case where the class representative or the proposed class representative's claim is not moot, the district court has discretion to decide first a motion to dismiss or first a motion to certify a class action. [00:21:59] Speaker 00: But where the individual, the named plaintiff's claim is moot, at that point, there is no plaintiff before the court withstanding to present the merits of the claim. [00:22:12] Speaker 00: And so in that case, the district court can't consider the motion to dismiss. [00:22:16] Speaker 00: It first has to consider the motion to certify a class. [00:22:20] Speaker 00: If it grants class certification, then now you've got a class of people who can present the claim on the merits, and then the district court can consider the merits. [00:22:28] Speaker 02: The district court, though, here effectively said, although Ms. [00:22:34] Speaker 02: Martin's claim is moot, you know, [00:22:38] Speaker 02: It fits within the inherently transitory exception. [00:22:41] Speaker 02: And so her claim effectively relates back. [00:22:44] Speaker 02: And so the class claim is live as if her individual claim was not moot. [00:22:51] Speaker 02: And then why would the district court not have the same option to either rule on the class certification motion, [00:22:58] Speaker 02: or, you know, the 12 v six. [00:23:01] Speaker 02: So that's the ordinary course. [00:23:02] Speaker 02: So, so, you know, we're sort of skip. [00:23:04] Speaker 02: Yes. [00:23:04] Speaker 02: If he hadn't said that there was an exception to mootness, I think it's right that we would have, but he said there was an exception. [00:23:11] Speaker 02: And then he proceeded to do what he did. [00:23:14] Speaker 00: But I do want to get back to the inherently transitory exception later. [00:23:17] Speaker 02: But just assuming for a moment that that is correct, that the inherent transitory exception does apply, why could the district court not choose to do what he thought was more efficient and dismiss some of the merits? [00:23:30] Speaker 00: So the inherently transitory exception, like any other exception to mootness that could possibly apply, doesn't make the named plaintiff's claim still live, nor does it join before the court [00:23:42] Speaker 00: all of the proposed class, it just allows the district court to continue to consider the motion for class certification. [00:23:49] Speaker 00: If it grants that, then the class, not the plaintiff, because her claim is clearly moot, but the class of people with live claims, it's like the class certification relates back to the time of the filing of the complaint. [00:24:03] Speaker 00: So the Supreme Court addressed this in Garrity. [00:24:06] Speaker 00: It addressed it in Roper. [00:24:07] Speaker 00: And it said that where an exception to mootness applies, that only allows the district court to go ahead to consider the motion for class certification. [00:24:16] Speaker 00: It doesn't allow the court to go ahead to address the merits. [00:24:19] Speaker 00: The court applied this in Alvarez v. Smith. [00:24:21] Speaker 00: In that case, the [00:24:24] Speaker 00: The name plaintiffs claim had become moot. [00:24:27] Speaker 00: The plaintiffs had not appealed the denial of class certification. [00:24:32] Speaker 00: So the Supreme Court said it didn't have anything before it that it could rule on. [00:24:37] Speaker 00: Here, certainly it is correct that the denial of classification merged into the final judgment here. [00:24:45] Speaker 00: But plaintiffs haven't challenged the denial of class certification in their brief. [00:24:51] Speaker 00: in their opening brief, not even in their reply brief. [00:24:54] Speaker 00: They kind of hinted at it as a possibility in their 28-J letter. [00:24:57] Speaker 00: Here at oral argument today was the first time that I really heard them agree that the district court lacked jurisdiction to do what it did. [00:25:04] Speaker 00: And so now they're arguing for the case to be sent back for this procedural morass to be sorted out. [00:25:11] Speaker 00: But they can't advance that argument, advance that remedy for the first time at oral argument. [00:25:19] Speaker 00: I'm happy to address additional questions on that issue if you have. [00:25:23] Speaker 00: Otherwise, I do want to make sure we get to the inherently transitory exception. [00:25:28] Speaker 02: So if we were to agree that the district court decided this in the wrong order, what is the remedy? [00:25:38] Speaker 02: To send it back for the district court to consider the class certification? [00:25:43] Speaker 00: I think that because plaintiffs did not ask for that in their opening brief, they didn't point out this error. [00:25:50] Speaker 00: Even in their reply brief after we had identified it, I think that they forfeited that remedy. [00:25:55] Speaker 00: I think that this court should dismiss for lack of appellate jurisdiction. [00:25:58] Speaker 02: Mr. Hubble, I mean, I think the government's briefing on the mootness question is a little bit misleading because the plaintiffs prevail on the question [00:26:08] Speaker 02: of the class certification being moot. [00:26:10] Speaker 02: I mean, that was a decision in their favor, right? [00:26:15] Speaker 02: Because it was based on the inherently transitory exception to mootness. [00:26:20] Speaker 00: Well, the denial of class certification as moot was a decision against them. [00:26:24] Speaker 00: The decision that there was an exception to mootness applied so that their claim could continue, that was a decision in their favor. [00:26:30] Speaker 02: It was. [00:26:31] Speaker 02: And they were saying that they are not challenging that, right? [00:26:34] Speaker 02: Because it was a decision in their favor. [00:26:37] Speaker 00: The application of an exception to mootness, but that is different than the denial of class certification as moot. [00:26:44] Speaker 00: I mean, there's two kinds of mootness here, right? [00:26:45] Speaker 00: There's the mootness of the claim, a plaintiff's claim because her property was returned to her. [00:26:51] Speaker 00: The district court found an exception to mootness to allow the class claims to go forward. [00:26:54] Speaker 00: That was a ruling in their favor. [00:26:56] Speaker 00: Separately, then, the district court considered the motion to dismiss without jurisdiction. [00:27:01] Speaker 00: It did consider that motion to dismiss, granted it, and then denied the motion for class certification as moot. [00:27:07] Speaker 00: That was a ruling against the plaintiffs because it was a denial of their motion for class certification. [00:27:18] Speaker 00: I think, so again, plaintiffs here have forfeited what they now seek as the remedy, which is to send it back to the district court to do things in the reverse order. [00:27:27] Speaker 00: I think that if they had preserved that argument, that potentially could be done. [00:27:33] Speaker 00: I think that Judge Rayer's question earlier is correct that it would seemingly be, we'd be back here in a year arguing the merits of this. [00:27:45] Speaker 00: You know, there is a jurisdictional problem here. [00:27:47] Speaker 00: We have an obligation to point out an error, a deficit of jurisdiction before the court. [00:27:53] Speaker 02: Is there a jurisdictional deficit if the inherently transitory determination was correct? [00:27:59] Speaker 00: Yes. [00:28:00] Speaker 00: Why is that? [00:28:01] Speaker 02: The government doesn't really explain that. [00:28:02] Speaker 00: Because the district court, even if the inherently transitory exception applied, [00:28:07] Speaker 00: the district court still do not have jurisdiction to consider the motion to dismiss. [00:28:11] Speaker 00: It first had to consider the motion for class certification. [00:28:14] Speaker 00: If that was granted, then the class of individuals with similar claims would be before the court. [00:28:21] Speaker 00: And now there would be a live controversy on the merits presented to the district court. [00:28:26] Speaker 02: Hey, setting out that rule. [00:28:28] Speaker 00: So Gerrity's says it roper says it and then wait in this posture, though. [00:28:35] Speaker 02: I mean, you know, in this sort of, you know, something that is more like squarely like this. [00:28:41] Speaker 00: So the Supreme Court and U.S. [00:28:43] Speaker 00: parole commissioner versus Garrity. [00:28:44] Speaker 00: So in that case, the name plaintiffs claim had become moot after the denial of class certification. [00:28:52] Speaker 00: And the Supreme Court there said a named plaintiff whose claim expires [00:28:55] Speaker 00: may not continue to press the appeal on the merits until a class has been properly certified. [00:29:00] Speaker 02: There was no determination by the district court of the merits of the class certification, right? [00:29:06] Speaker 02: So, so in Garrity, there was a denial of the class certification, like on the merits of whether a class could be certified. [00:29:14] Speaker 02: Here, the district court didn't make a decision like that. [00:29:16] Speaker 00: I think this case is the same as Alvarez v. Smith. [00:29:22] Speaker 00: I believe the named plaintiff's claim in Alvarez became moot before the denial of class certification. [00:29:31] Speaker 00: Well, the named plaintiff's claim became moot. [00:29:34] Speaker 00: The district court granted a motion to dismiss and denied class. [00:29:39] Speaker 00: I'm sorry. [00:29:40] Speaker 00: The named plaintiff's claim was live. [00:29:42] Speaker 00: The district court granted a motion to dismiss and denied class certification as moot. [00:29:47] Speaker 00: While the case was before the Supreme Court, the named plaintiff's claim became moot. [00:29:53] Speaker 00: And the Supreme Court said, at this point, because the named plaintiff's claim is moot and no class has been certified, we cannot address the merits. [00:30:01] Speaker 00: We have to, we lack jurisdiction. [00:30:05] Speaker 00: In that case, the court vacated the decision below under Munsingware. [00:30:08] Speaker 00: But that part of the opinion is, [00:30:11] Speaker 00: independent. [00:30:14] Speaker 00: So I think that all of RSV Smith is essentially this case. [00:30:16] Speaker 00: I think it controls. [00:30:20] Speaker 00: Even if this, with the court's permission, I would like to address the inherently trans story. [00:30:24] Speaker 04: Judge Rogers, did you have a question? [00:30:26] Speaker 04: I just wanted to be clear. [00:30:27] Speaker 04: Some of these cases, it seems to me, turned on timing in the terms of when the district court was addressing the individual claim. [00:30:42] Speaker 04: So we don't have quite the sequence that we have here where the district court had ruled on it. [00:30:57] Speaker 04: Some of those cases we're talking about picking off. [00:31:00] Speaker 04: All right. [00:31:00] Speaker 04: So the court was trying to avoid that situation. [00:31:04] Speaker 04: So now we have this inherently. [00:31:11] Speaker 04: Well, all right. [00:31:16] Speaker 04: I'll let you finish your point. [00:31:21] Speaker 00: The situation is not exactly the same in terms of the sequence, but I think that the Supreme Court's rule is clear that unless there is a plaintiff before the court, either the named plaintiff with a live claim or the rest of the class, once it's been certified, until the class has been certified, they're not before the court. [00:31:37] Speaker 00: So unless there's the named plaintiff with a live claim, [00:31:40] Speaker 00: or the rest of the class with live claims before the court, the district court doesn't have jurisdiction to address the merits. [00:31:46] Speaker 02: It does seem, though, then, as a remedy, at a minimum, we need to remand to the district court to class-certify, because there was, I mean, at least on your view, there was a mistake in going to the merits. [00:31:57] Speaker 02: If the plaintiffs... So, I mean, then that decision, if we don't remand for that consideration, then its ruling below offense essentially becomes unreviewable. [00:32:06] Speaker 00: I think if the plaintiffs had appealed the denial of class certification as moot, if they had said the district court should not have denied our motion for class certification as moot because it shouldn't have addressed the merits in the first place, it should have first considered our motion for class certification, granted it, and then addressed the merits, I think that you would be correct that the court would reverse the dismissal and remand to the district court to consider the motion for class certification. [00:32:33] Speaker 00: forfeited or waived that argument by not raising it in their opening brief and not even in their reply brief. [00:32:41] Speaker 05: But to Judge Rao's point, don't we still need to vacate, even when we dismiss the appeal, don't we also need to vacate the district court's decision because it has now come to, I think, everyone's attention that that also was entered without jurisdiction. [00:32:56] Speaker 00: I think this court could vacate the district court's decision as well because, yes, it was entered without jurisdiction. [00:33:05] Speaker 04: Oh, here, the notice was dated June 10. [00:33:12] Speaker 04: And then the FBI answered. [00:33:19] Speaker 04: And then the plaintiff filed a motion for class certification. [00:33:26] Speaker 04: And that was in April of 2023. [00:33:31] Speaker 04: And then she received the money. [00:33:35] Speaker 04: by electronic transfer, I see it, on July 10. [00:33:40] Speaker 04: That's right. [00:33:41] Speaker 04: So at that point, your argument was, well, her claim is certainly moot. [00:33:52] Speaker 04: And the district court in saying that the class action wasn't moot still had to just procedurally [00:34:05] Speaker 04: Establish its jurisdiction by saying there there was. [00:34:09] Speaker 04: A rule 23 class action here that that's exactly right. [00:34:13] Speaker 00: This district court first had to certify a class in order to have any live claims before it that it could consider on the merits. [00:34:21] Speaker 04: And so there's no way the court could sort of jump to the merits. [00:34:27] Speaker 00: That's correct. [00:34:30] Speaker 04: It's not a company argument, but it's close to that. [00:34:35] Speaker 00: I'm sorry. [00:34:37] Speaker 04: Well, I was just trying to understand, you know, before steel company courts all the time, assuming we had jurisdiction, you know, you lose on the merits. [00:34:46] Speaker 04: I'm just going to dismiss the whole case. [00:34:49] Speaker 00: Yes, that's exactly right. [00:34:50] Speaker 00: Under steel company, the court first had to assure itself of jurisdiction or in this case, create jurisdiction basically by certifying a class before it could rule on the merits. [00:35:00] Speaker 00: There's no doubt that there was no jurisdiction here. [00:35:03] Speaker 04: Well, I wasn't quite clear from the record in this case where there are all these declarations by other people, whether any of that was before the district court. [00:35:17] Speaker 00: The motion to certify a class was before a district court, but those individuals were not plaintiffs, were not joined to the case. [00:35:24] Speaker 00: Right. [00:35:25] Speaker 00: same amount of time. [00:35:26] Speaker 00: I'm happy to discuss the other issues, including why the court erred in finding the inherently transitory exception applied. [00:35:32] Speaker 05: Um, but do you have more questions? [00:35:34] Speaker 02: Let me just see. [00:35:35] Speaker 05: Thank you. [00:35:37] Speaker 02: I do have a lot of questions about the merits, but it seems that even your colleague on the other side has suggested we no longer have jurisdiction to consider that. [00:35:47] Speaker 02: So thank you very much. [00:35:49] Speaker 02: Council. [00:35:52] Speaker 05: Mr Fromer will give you two minutes. [00:35:55] Speaker 01: Just a small point your honor. [00:35:58] Speaker 01: I understand that the my opposing council saying that we're on all fours with all for us. [00:36:04] Speaker 01: And I'd say that respectfully we're not for the final reason I mentioned before is that. [00:36:10] Speaker 01: In Alvarez, the plaintiff's counsel had failed to appeal the class cert denial and the case went up and that's what the issue was in that case and why the court lacked jurisdiction. [00:36:23] Speaker 01: Here, we did appeal the class cert denial. [00:36:26] Speaker 01: It was subsumed and that's basically what I was talking about before. [00:36:30] Speaker 05: Notice of appeal in Alvarez didn't work the same way your notice of appeal works? [00:36:33] Speaker 01: That's exactly right, Your Honor, because the rules of the appellate procedure changed between Alvarez and now, so as to, as I think I put it in the brief, remove that trap for the unwary by subsuming all the orders into the judgment being appealed. [00:36:48] Speaker 05: In our case in Lewis versus Becerra, [00:36:53] Speaker 05: So even if we assume that your brief was arguing that Miss Martin was here in her representative capacity for the class, we held that you have to demonstrate that Miss Martin here has an injury from denial of the class certificate, not of her own claims, but from denial of the class certification and establishes under that she has [00:37:20] Speaker 05: appellate standing to bring this issue before us. [00:37:25] Speaker 05: Where have you done that in your briefing? [00:37:28] Speaker 01: Well, we articulated why she, the process that she went through, that she engaged in this litigation precisely to vindicate not only her own rights, but the rights of the class. [00:37:40] Speaker 01: But I understand you're talking about the personal stake requirement. [00:37:44] Speaker 05: Personal stake in the, not in the forfeiture issue, but in the class certification. [00:37:50] Speaker 05: issue. [00:37:51] Speaker 01: And in that that issue, it's more than just a I believe in that case, we said that more than just simply a desire, a bare desire to service class representative. [00:38:02] Speaker 05: This was a to vindicate the law. [00:38:05] Speaker 01: Yeah, just merely. [00:38:07] Speaker 01: Well, I believe in Lewis v. Sarah, they actually said, like, we just want to have the opportunity to serve as class representatives, which this court said was not enough. [00:38:16] Speaker 01: I agree that there is. [00:38:18] Speaker 05: We all know that under Article 3, a desire to see the law vindicated for other people generically is not sufficient. [00:38:25] Speaker 05: And so have you argued here that she does have interest in [00:38:33] Speaker 05: I think that's a good point. [00:38:35] Speaker 05: I think that's a good point. [00:38:37] Speaker 05: I think that's a good point. [00:38:39] Speaker 05: I think that's a good point. [00:38:42] Speaker 01: I think that's a good point. [00:38:45] Speaker 01: I think that's a good point. [00:38:47] Speaker 01: I think that's a good point. [00:38:48] Speaker 01: I think that's a good point. [00:38:52] Speaker 01: Following the district court's lead, we were focused in on the 12b6 issues, the merits issues. [00:38:57] Speaker 01: And so I think if we're able to go back down, we'd be able to brief that properly. [00:39:04] Speaker 01: And I would just lastly, and I let the court [00:39:09] Speaker 01: Both the 10th Circuit in the Medina case, it hit this exact same point where it realized, oh, we don't have jurisdiction. [00:39:18] Speaker 01: And then it immediately went, well, that means the district court didn't have jurisdiction either. [00:39:23] Speaker 01: And that's why it vacated and remanded. [00:39:25] Speaker 01: And it said there wasn't any forfeiture because it went to its subject matter jurisdiction. [00:39:29] Speaker 01: Similarly, in the Second Circuit case, there was that court also said there was no forfeiture because there was no surprise to the government. [00:39:37] Speaker 01: And most importantly, the price of the government here. [00:39:41] Speaker 01: I think the government and its its appellee brief noted the jurisdictional issue. [00:39:47] Speaker 01: So it doesn't seem that there was a surprise to it. [00:39:49] Speaker 05: Didn't get a chance to breathe for these cases that you've now cited to us. [00:39:52] Speaker 01: I understand that your honor, but any further questions? [00:39:57] Speaker 01: I'll let you finish your sentence. [00:39:58] Speaker 01: Okay. [00:39:59] Speaker 01: I was just going to say the second circuit said there was no forfeiture precisely because the district court rested its class verification decision on the merits of the plaintiff's claims. [00:40:09] Speaker 01: And that's why it said forfeiture shouldn't be, or should be excused there. [00:40:13] Speaker 05: Okay. [00:40:13] Speaker 05: Thank you very much. [00:40:14] Speaker 05: The case is submitted.