[00:00:11] Speaker 00:
Good morning.

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

[00:00:13] Speaker 00:
Farbod Mordani on behalf of Los Angeles County, the Department of Children and Family Services, and the Department of Mental Health.

[00:00:20] Speaker 00:
I'd like to reserve four minutes of my time, if that's okay.

[00:00:25] Speaker 00:
This appeal is not about whether the state of California or its counties who administer the foster care system should take care of our foster children.

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The answer to that question is emphatically yes.

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What this appeal is about is whether a federal judge should substitute his opinion for those of the other branches, state and local governments, and California's juvenile courts on how to accomplish that.

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The answer to that question is emphatically no.

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This action fails because the relief that plaintiffs have requested would not remedy the injuries they allege is beyond the power of a federal court to grant.

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and would invade the province of California's juvenile courts who bear ultimate responsibility for the well-being of foster children.

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Starting with redressability.

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The irreducible minimum of standing requires a plaintiff to show that the relief they request will both remedy their individual injuries and is within the court's power to award.

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And neither of those applies here.

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Article 3 standing is based on a single basic idea, the separation of powers.

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And what is clear, and the Supreme Court has said time and again, is that federal courts have no jurisdiction to exercise general ongoing oversight over the other branches.

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And that is particularly true when that oversight would be as to discretionary, budgeting, and socio-political and economic decision making, which is precisely the case here.

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The administration of a foster care system is an incredibly complex exercise requiring painstaking decisions about the deployment of scarce resources, about the makeup, frequency, and kind of services to be provided when, where, how, and to whom.

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These are decisions that are already made every single day by the legislature, by the Board of Supervisors, by the Department of Children and Family Services.

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People who have devoted their lives and careers to taking care of foster youth are grappling with these issues every single day and must make complex policy decisions about how to administer these systems.

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A federal judge can do no better than all of these groups combined and it certainly doesn't have the power

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to substitute his judgment and take the entire foster care system and put it under federal court oversight for a period of time until the court is satisfied that the foster care system is good enough.

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These decisions are reserved for the other branches of government.

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And we are not lacking for guidance here.

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This court faced a similar issue in Juliana versus United States where plaintiffs filed suit

[00:03:20] Speaker 00:
alleging that their health, their businesses, their properties were being damaged by the government's failure to address environmental change.

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Just like plaintiffs here, they sought a declaration that the government had violated the Constitution.

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Just like plaintiffs here, they sought an injunction requiring the government to prepare a plan to correct systemic failures to address these environmental changes.

[00:03:45] Speaker 02:
But in Juliana,

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There were other redressability issues of even if the climate change was caused by foreign countries, et cetera.

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I mean, there are other factors involved, at least based on that Ninth Circuit opinion.

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Yes, Your Honor, and those factors apply here as well.

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So the problem in Juliana was twofold.

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The first was that the court didn't have the power to grant the relief in the first place because any effective plan would require a federal court to make the very policy decisions that are reserved for the other branches.

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But the second problem was that even if that remedy were granted, it wouldn't actually be effective relief for the injuries that are asserted.

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We have that problem here too.

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The reason we have that problem is there are several.

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The first is that there are multiple independent actors and independent decision makers who are not part of the lawsuit in front of Judge Cronstadt and could never be.

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The Supreme Court actually faced something very similar in Halen v. Burkene, where the plaintiffs challenged placement decisions made under the Indian Child Welfare Act.

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The plaintiff sued, challenging those placement decisions, and the Supreme Court found that redressability was lacking because those placement decisions are made by state courts.

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And state courts weren't in front of the federal court, nor could they be, and those decisions are reserved for the state courts.

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We have the exact same issue here.

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Every single placement for a foster child is reviewed and approved by a juvenile court.

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There is a court order stamping its approval on the placement.

[00:05:21] Speaker 05:
How often are the juvenile courts reviewing the placement decisions?

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At a minimum once every six months, but it can be much more frequent and it can be as needed.

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So every foster child has appointed counsel whose entire job it is to look out for the child's needs and assess whether there are any deficiencies or if there are any gaps.

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If at any point that

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Attorney determines that there is a cap they can get in front of the juvenile court ordinarily within 24 hours sometimes same day So I I have I've read the complaint several times.

[00:05:57] Speaker 05:
It's written at a very very high level of abstraction I've had a very difficult time trying to figure out precisely what it is that we want So if you if maybe you can can help me so I understand that there are the

[00:06:08] Speaker 05:
One of the principal claims is that we are discriminating against these youth on the basis of their disabilities.

[00:06:14] Speaker 05:
Okay.

[00:06:15] Speaker 05:
Now, why couldn't that be resolved by a district court?

[00:06:19] Speaker 00:
On the ADA claim, the allegation is that plaintiffs are not receiving placements that are in the least restrictive setting appropriate to their needs.

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That is a determination that the juvenile court makes

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every single day.

[00:06:33] Speaker 05:
The California Welfare and Institutions Code specifically requires the juvenile court to consider whether... And if one of the plaintiffs believe that they would not be placed in a least restrictive setting, can that be raised to the dependency court?

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Absolutely.

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That is exactly what they're there for.

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All they have to do is talk to their attorney.

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The attorney will request what is called a walk-on.

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They will walk into the juvenile court and say, there's a problem with my placement.

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And it's not limited to

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least restrictive setting.

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It's any deficiency in the placement.

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It can be too far from school.

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It could be it's not a good fit.

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It could be I'm not getting the services I need.

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Every single injury that is every single individual injury that is asserted in this complaint is precisely within the province of what the juvenile court exists to remedy.

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There is no gap here and that is part of the problem.

[00:07:20] Speaker 05:
So we have some due process claims that claim that they're not being given notice at a hearing because there's been some kind of change in their circumstances for which they thought they were entitled to notice.

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Can that be handled by the court or does that have to be handled by an agency?

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And can any error there be remedied by the dependency court?

[00:07:42] Speaker 00:
Any error can be remedied by the dependency court.

[00:07:44] Speaker 00:
But on top of that, that is not something that a federal court can order because we run right into redressability again.

[00:07:50] Speaker 00:
The procedural due process claim, the one where plaintiffs are demanding notice and opportunity to be heard, and if you look at the complaint paragraph 199, they're asking for a neutral arbiter to intervene and hold evidentiary hearings on this subject matter.

[00:08:06] Speaker 00:
That wouldn't remedy any of the injuries here, because the procedural due process claim is asserted on behalf of foster youth who are renting from private landlords.

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Private landlords have unfettered discretion to decide who they're renting to.

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If it's just not a good fit, they can decide they don't want to rent to a particular person.

[00:08:25] Speaker 00:
Similarly, if a foster youth violates the rules of their placement, if they violate their lease, as occurred in this case, for example, Jackson Kaye had illicit drugs in his possession and was removed from his placement because of that, the landlord has

[00:08:42] Speaker 00:
their discretion to evict someone based on that.

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Ordering the county to hold hearings about it wouldn't accomplish anything.

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One, it wouldn't address the injury that's alleged, which is the loss of a placement.

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That's in the hands of the landlord.

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And two, it would utterly interfere with what the juvenile court is doing, because if there now suddenly is this third

[00:09:03] Speaker 00:
Additional branch this neutral arbiter who is holding evidentiary hearings on whether or not that was appropriate That inserts chaos into something that is within the purview of the juvenile court Let me just ask you procedural questions So the district court certified this for for our review and then after that I permitted them to amend the complaints with a second amended complaint

[00:09:22] Speaker 05:
I've tried to look at both the second amended complaint and the first amended complaint to try to figure out what survives and what doesn't survive.

[00:09:29] Speaker 05:
Some things appear to maybe have been split into multiple claims.

[00:09:34] Speaker 05:
So is the second amended complaint going to be the operative complaint or the first operative, the first amended complaint?

[00:09:41] Speaker 00:
The first amended complaint is the operative complaint.

[00:09:44] Speaker 00:
So let's walk through this.

[00:09:45] Speaker 00:
Plaintiffs filed their original complaint and then amended that as of right.

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So we have the first amended complaint.

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The county defendants moved to dismiss that complaint for lack of subject matter jurisdiction and abstention and various other grounds, including failure to state a claim.

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And the court granted the motion for failure to state a claim in large part, but rejected the motion to dismiss for lack of subject matter jurisdiction.

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And all of that is encapsulated within the same order that is in front of you now.

[00:10:15] Speaker 00:
Plaintiffs subsequently purported to amend their complaint, and the court had granted them leave to do so.

[00:10:20] Speaker 00:
But the court didn't have authority to

[00:10:22] Speaker 00:
grants that leave to amend because the court lacks jurisdiction from inception.

[00:10:27] Speaker 00:
This court held in Morongo, and it reiterated recently in the LA Alliance case in 2021, that if the court is lacking subject matter jurisdiction to begin with, which is the whole point of this appeal, which is what I am arguing to you now, then every one of its orders, including any of its orders granting leave to amend, are nullities because it didn't have

[00:10:50] Speaker 00:
authority to grant leave to amend in the first place.

[00:10:52] Speaker 05:
So if we uh... if we affirmed the district court's uh... order then the district court would have the discretion to allow a second amended complaint?

[00:11:01] Speaker 05:
If the court, if you affirm that the court has jurisdiction... Right, if we just affirm the district court across the board, so this would go back, it's going to go back for discovery and trial and further motions and summary judgment, at that point the district court would retains jurisdiction and could then

[00:11:18] Speaker 05:
to admit the second amended complaint, is that correct?

[00:11:21] Speaker 00:
It depends on what the amendment is for.

[00:11:23] Speaker 00:
So if we're just talking about factual allegations to fill out their causes of action, that would be fine.

[00:11:29] Speaker 00:
But if the amendment would be to bring about jurisdictional basis that didn't exist in the first place, then that is not allowed.

[00:11:36] Speaker 04:
The Supreme Court would... Why not?

[00:11:39] Speaker 04:
I mean, the premise of the question is that we have affirmed it's now back in front of the district court.

[00:11:44] Speaker 04:
Why doesn't the district court have authority

[00:11:47] Speaker 04:
Actually, had I already granted leave to amend on some claims, why can't the district court effectuate that?

[00:11:54] Speaker 00:
The district court can grant leave to amend, but the... You're right.

[00:11:57] Speaker 00:
If the court rules that the district court has subject matter jurisdiction to begin with, then it's kind of over, and Judge Cromsak can grant leave to amend in his discretion.

[00:12:07] Speaker 04:
I just want to make sure I'm not missing something.

[00:12:09] Speaker 04:
The premise of the question, as I understood it, which is a hypothetical, I get it, but I presume that

[00:12:16] Speaker 04:
the case goes back to the district court and at that point the district court does what it looks to do.

[00:12:21] Speaker 00:
That's right and the interesting thing is your answer to the question on appeal will itself resolve this purported mootness problem because if you find that the court lacks jurisdiction to begin with then it also lacks the authority to grant leave to amend anyway and it's not moot.

[00:12:36] Speaker 00:
If you find that the court had jurisdiction to begin with then plaintiffs prevail on this appeal anyway and the mootness question itself becomes moot.

[00:12:44] Speaker 00:
So we end up in the same place regardless which is that the substance of this argument is before you and that is what the court needs to rule on regardless of whether or not the amendment itself was correct.

[00:12:54] Speaker 04:
Let me get to some of that substance.

[00:12:56] Speaker 04:
Let me be very clear to everybody.

[00:12:59] Speaker 04:
I have a degree of skepticism which I think actually seems to be the district court may at least in part share with regard to these broad institutional reform class actions.

[00:13:14] Speaker 04:
There are several of them that have proceeded through the system.

[00:13:20] Speaker 04:
And sometimes you can fairly argue that if you focus on all the individual trees, you lose the forest.

[00:13:27] Speaker 04:
That is, many of the complaints are not simply, well, in this case, the disability wasn't properly dealt with, but there is a systematic problem so that

[00:13:40] Speaker 04:
Consistently, that turns out to be the result because of some institutional problem.

[00:13:47] Speaker 04:
Again, acknowledging skepticism with regard to relief on the merits, why isn't there a relief, why isn't there redressability in the form of relief that might be more modest than what the complaint appears to seek, but still would successfully

[00:14:07] Speaker 04:
alleviate or abate some of the problems that are identified in the complaint.

[00:14:12] Speaker 00:
Your Honor, this court just held in Stockton v. Brown, a case that just came out two days ago, that it is not the judiciary's job to take up the mantle of imagining a scenario where subject matter jurisdiction might exist.

[00:14:27] Speaker 00:
The court takes the lawsuit that is presented to it, and actually that is exactly what happened in Juliana.

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In Juliana, the court didn't sit there and imagine is there some lesser version of the relief that is requested here that might potentially pass muster.

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Jurisdiction is inherently a threshold inquiry.

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Redressability must exist from the start.

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It is by intention and flexible and without exception.

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Because the most important question a judge faces in the beginning of a lawsuit is, is this a case or controversy?

[00:14:57] Speaker 00:
So the answer to the question presented to you is that this is not a case or controversy because the action that is before you now seeks relief that one, doesn't remedy the injuries asserted, two, is beyond the power of a federal court to grant, and three, would invade the province of juvenile courts.

[00:15:14] Speaker 00:
And if I can briefly address the younger abstention question.

[00:15:20] Speaker 00:
The district court disagreed with us on younger abstention on one ground, which was that dependency cases are not civil enforcement proceedings.

[00:15:29] Speaker 00:
In our view, that is flat wrong.

[00:15:32] Speaker 00:
Moore versus Sims itself involved a dependency proceeding.

[00:15:35] Speaker 00:
That finding is incompatible with California case law.

[00:15:40] Speaker 00:
The district court's finding is holding that you cannot view any particular aspect of a dependency case in a vacuum, that the entirety of the proceeding is one singular case that has to be all viewed together as interrelated hearings.

[00:15:54] Speaker 00:
It's incompatible with California statutes that say the dependency court can only retain jurisdiction if it determines that the specific reasons the jurisdiction arose in the first place, being abuse or neglect, and the concerns that are reflected in the criminal statutes persist.

[00:16:13] Speaker 00:
In other words, if a dependency case exists, there is still a civil enforcement proceeding aspect to it.

[00:16:19] Speaker 00:
And it is also incompatible with this court's ruling in Bristol Myers Squibb versus Connors where the court ruled that you don't look at the specific facts of a specific case and the specific interest in a specific case or the specific component of a specific case to determine whether or not it's a civil enforcement proceeding.

[00:16:37] Speaker 00:
You look at the general interest in the general class of proceedings that are at issue

[00:16:45] Speaker 00:
The general class of proceedings at issue here are exactly the same class of proceedings that were at issue in Moore v. Sims.

[00:16:50] Speaker 00:
They are dependency cases, which the Supreme Court ruled are subject to younger abstention.

[00:16:55] Speaker 00:
And I'd like to reserve the rest of the time.

[00:16:57] Speaker 00:
I thought you'd get it.

[00:16:57] Speaker 02:
Thank you.

[00:16:58] Speaker 02:
Thank you.

[00:17:09] Speaker 01:
Good morning, Your Honors.

[00:17:11] Speaker 01:
May it please the Court, Grant Davis-Denney on behalf of Plaintiffs Appellees.

[00:17:15] Speaker 01:
I'd like to start just to clarify one thing about the history of the case.

[00:17:19] Speaker 01:
It was actually the case that the district court, when it issued the order that is up on appeal, it granted leave to amend.

[00:17:27] Speaker 01:
It gave plaintiffs 30 days to file their second amended complaint.

[00:17:33] Speaker 01:
Both parties stipulated to a short extension.

[00:17:37] Speaker 01:
And then plaintiffs timely filed that second amended complaint months before the district court certified the 1292B petition.

[00:17:47] Speaker 01:
So I just wanted to clarify that fact.

[00:17:50] Speaker 01:
On mootness.

[00:17:51] Speaker 04:
It does seem a little odd and I understand the number of things flowing around.

[00:17:58] Speaker 04:
But the certification a substantial time later without speaking to the question of

[00:18:07] Speaker 04:
What complaint we're supposed to be considering does confuse things some though.

[00:18:11] Speaker 04:
I understand your argument with regard to Well, what what do you think we can properly entertain now?

[00:18:20] Speaker 01:
Well, I think one way to look at it is to say Let's assume that the younger abstention argument or the standing argument had merit obviously if they don't Then there was no problem.

[00:18:33] Speaker 01:
I think everyone would agree with that

[00:18:34] Speaker 01:
But let's assume that one of those two had merit.

[00:18:37] Speaker 01:
Then the question is, did the district court have authority to grant leave to amend to file the second amended complaint?

[00:18:47] Speaker 01:
So take Younger to begin with.

[00:18:49] Speaker 01:
The county's position is no, the court didn't have that authority with respect to Younger because Younger is about a lack of jurisdiction.

[00:19:00] Speaker 01:
But the Supreme Court and this court have both made clear

[00:19:04] Speaker 01:
But that actually is not the case.

[00:19:05] Speaker 01:
Younger is about a decision not to exercise the jurisdiction that Congress conferred on the federal courts.

[00:19:15] Speaker 01:
So there's no reason why, even if they had, even if the district court had found Younger as abstention appropriate,

[00:19:22] Speaker 01:
it wouldn't have granted leave to amend, particularly given the nature of the younger issues here where it's a lot of it's about how are the claims pledged.

[00:19:30] Speaker 05:
Why did the district court allow this thing to play out, allow another motion to dismiss if the first motion to dismiss is now moved because there's now another complaint?

[00:19:39] Speaker 05:
I have to say this seems very, very irregular.

[00:19:43] Speaker 05:
It certainly has shown a lot of confusion in my chambers.

[00:19:47] Speaker 05:
So I'm really struggling to figure out what are we supposed to do with this second amended complaint?

[00:19:52] Speaker 05:
Does it cure problems that I think I might identify?

[00:19:55] Speaker 05:
If it doesn't, if it's just the same things but kind of redone, everything's just been renumbered, then I'm not sure what I'm supposed to do with this thing.

[00:20:04] Speaker 01:
Yeah.

[00:20:05] Speaker 01:
Well, it didn't just renumber things, the second amended complaint.

[00:20:08] Speaker 01:
It does make changes.

[00:20:10] Speaker 01:
Class definitions, it narrows forms of relief, it adds allegations at various points.

[00:20:16] Speaker 01:
So there are substantive differences.

[00:20:18] Speaker 01:
The second point I would make though on that, Your Honor, is that Falk said that even if there are just minor differences between the two forms of the complaints, that doesn't get rid of the mootness issue.

[00:20:29] Speaker 01:
The fact is that the filing of that second amended complaint supersedes the first amended complaint.

[00:20:35] Speaker 01:
So what are we supposed to consider that yeah to continue though that the point we were the discussion We were having just a moment ago Turn to standing let's assume there was a lack of standing well jewel versus National Security Agency out of this court Says that even when you dismiss for standing it's subject to the normal rule You should generally allow leave to amend unless amendment would be that contrary to what we said in morongo No, it is not

[00:21:02] Speaker 01:
Morongo was a case where the district court had assumed that jurisdiction existed all the way through the district court proceedings.

[00:21:14] Speaker 01:
It even reached a decision on the merits.

[00:21:17] Speaker 01:
It granted leave to amend, not because it had found a lack of jurisdiction, but because it was granting leave for a party to add a claim in interpletor to the funds at issue.

[00:21:28] Speaker 01:
And so what Morongo said was because jurisdiction was lacking all along, the district court didn't have authority to issue a decision on the merits or grant that leave to amend.

[00:21:39] Speaker 01:
It was not addressing what you do when you dismiss based on lack of jurisdiction or more properly, it wasn't addressing what you do when you dismiss based on lack of standing or based on younger abstention principles.

[00:21:53] Speaker 01:
And that in Morongo, they cite,

[00:21:58] Speaker 01:
Two authorities for that.

[00:22:00] Speaker 01:
The first is a Wright Miller and Cooper excerpt that is from their chapter on 1404A transfers.

[00:22:07] Speaker 01:
And the statement about if there's jurisdiction lacking, you don't do anything.

[00:22:13] Speaker 01:
That was made, if you see the entire quote, it was made in the context of you can't issue a 1404A transfer if the court lacks jurisdiction.

[00:22:22] Speaker 01:
Of course, that's true.

[00:22:23] Speaker 01:
The other one was a decision where,

[00:22:26] Speaker 01:
The district court had ordered the parties to either stipulate to the facts or to file an answer.

[00:22:35] Speaker 01:
So again, not dealing with the situation that we have here.

[00:22:38] Speaker 01:
So unfortunately, I think the appropriate answer here is that this appeal is moot.

[00:22:44] Speaker 01:
But I'm glad to answer any other questions the court may have on that.

[00:22:47] Speaker 04:
It's odd because that means the relief from your clients and class just gets delayed for,

[00:22:56] Speaker 04:
I have some trouble understanding how that serves your client.

[00:23:03] Speaker 01:
Your Honor, frankly, plaintiffs don't like it either.

[00:23:06] Speaker 01:
Plaintiffs would rather proceed with getting these issues resolved.

[00:23:11] Speaker 01:
But we did feel compelled to raise this issue, and I think it's hard to have a discussion about

[00:23:17] Speaker 01:
this case and the fact that you're dealing with both a first amended complaint and a second amended complaint without dealing with it.

[00:23:24] Speaker 05:
So if I thought that there was a redressability problem, not a younger problem, but a redressability problem or a problem under O'Shea versus Littleton, Rizzo versus Good, those would go to Article 3 concerns and therefore what?

[00:23:40] Speaker 05:
The SAC is not valid?

[00:23:43] Speaker 01:
Not necessarily.

[00:23:44] Speaker 01:
I think it so much depends on what is the reason why, Your Honor, in that hypothetical, would find that O'Shea applied.

[00:23:54] Speaker 01:
It might be that there was some aspect of some injunctive remedy that the court imagined that they thought involved an ongoing audit of the state court proceedings.

[00:24:03] Speaker 01:
To be very clear, we're not seeking an ongoing audit.

[00:24:06] Speaker 01:
We're not seeking even an injunction against the state dependency court proceedings.

[00:24:11] Speaker 01:
But let's just engage in that hypothetical exercise.

[00:24:14] Speaker 01:
Well, then the court could grant leave to amend, and in the second amended complaint, the plaintiffs could narrow their claim to avoid that issue that creates the Rizzo problem.

[00:24:26] Speaker 01:
So that's, I think that's the issue.

[00:24:28] Speaker 05:
Okay, but that now would require you to file a different amended complaint than the one that you've already filed?

[00:24:35] Speaker 01:
Engaging sorry I was engaging with your hypothetical on the assumption that the district court in this case In this order that's up on appeal had come out the other way on something I'd like to take you to the merits if I can so let me tell you that I have I've read the complaint the first amended complaint and

[00:24:54] Speaker 05:
a number of times.

[00:24:57] Speaker 05:
It's very well written, but it is written at a very, very high level of abstraction.

[00:25:02] Speaker 05:
And I have a very difficult time understanding what precisely it is that you want.

[00:25:06] Speaker 05:
You want injustices cured, but I'm not exactly sure I know what any of this is going to look like.

[00:25:13] Speaker 05:
So I need you to tell me, why isn't this an ongoing audit of the foster care system in Los Angeles?

[00:25:20] Speaker 01:
So to begin with, as you pointed out, there's an ADA and 504 claim.

[00:25:25] Speaker 01:
One of the key arguments that we make in the complaint is that the county's Department of Children and Family Services has a practice of screening out applications for transitional housing from youth who have mental health disabilities.

[00:25:40] Speaker 05:
That includes... And is this a policy of the county?

[00:25:45] Speaker 01:
It's a practice of the county.

[00:25:47] Speaker 01:
But not a policy?

[00:25:48] Speaker 01:
How much is enshrined in a written policy, I think, is subject to discovery, which we obviously... And why can't that be cured on a case-by-case basis in a dependency proceeding?

[00:25:57] Speaker 01:
Well, in part because youth don't even know whether they have been accepted or rejected from a position.

[00:26:04] Speaker 01:
That's another problematic part

[00:26:06] Speaker 01:
of the county's procedures and this goes to the procedural due process claim.

[00:26:11] Speaker 01:
Youth submit applications to DCFS and then learn months later that DCFS never even submitted their applications.

[00:26:21] Speaker 01:
So there's that difficulty, they don't know.

[00:26:24] Speaker 01:
There's the difficulty of not being able to see across different cases to see whether there's a pattern of discrimination occurring.

[00:26:33] Speaker 01:
You cannot do that in a dependency court case because

[00:26:36] Speaker 01:
Discovery is limited to the individual child before the court But the point I would make your honor about the systemic remedies here is I think is really critical It's a point that the fourth circuit made in the Jonathan our case the point that judge Thorne and judge Henry make very effectively in their amicus brief

[00:26:53] Speaker 01:
When you're talking about systemic problems like this, you cannot solve them on a case-by-case basis.

[00:27:00] Speaker 01:
If you go to the dependency court judge and say, I don't have a placement or I need a placement, and the dependency court judge tries to order a placement, they're likely to do so based on a best efforts approach of the county.

[00:27:13] Speaker 01:
because there is a waiting list.

[00:27:15] Speaker 01:
The county has failed to sustain sufficient.

[00:27:18] Speaker 05:
All right.

[00:27:18] Speaker 05:
So if it can't be done by the court, what do you expect the district court to do?

[00:27:22] Speaker 05:
If the dependency court can't address this, what is the district court going to do?

[00:27:27] Speaker 01:
Well, the dependency court can't, for structural reasons, for example, it can't entertain class actions.

[00:27:34] Speaker 01:
So it can't grant system-wide relief.

[00:27:36] Speaker 01:
And by the way, let me get to your question.

[00:27:39] Speaker 01:
I want to come back to another issue, if I could.

[00:27:42] Speaker 01:
The district court could, for example, set a requirement that the county develop sufficient number of placements to deal with this population.

[00:27:52] Speaker 01:
That would not in any way interfere.

[00:27:54] Speaker 05:
And why doesn't that involve third parties who are not before the court?

[00:27:58] Speaker 01:
The county could provide those placements itself.

[00:28:01] Speaker 05:
You mean build its own housing?

[00:28:04] Speaker 01:
The county could run its own housing.

[00:28:06] Speaker 05:
Wouldn't that require then a budget allocation?

[00:28:11] Speaker 05:
That would be beyond the district court's authority, wouldn't it?

[00:28:14] Speaker 01:
No.

[00:28:14] Speaker 01:
There is no absolute rule against that.

[00:28:16] Speaker 01:
The Supreme Court has said over and over again that it can be the case that an incidental impact of injunctive relief is... That doesn't strike me as incidental impact, counsel.

[00:28:27] Speaker 05:
That strikes me if you're asking if you're going to order the county to provide housing for... You've got classes of several hundred to several thousand.

[00:28:36] Speaker 05:
that we're creating whole dormitories is that these are entire campuses that may involve easily, you know, hundreds of millions of dollars.

[00:28:45] Speaker 05:
That's not an incidental impact.

[00:28:47] Speaker 05:
And yet the parties that would have to provide that money are not before the district court.

[00:28:51] Speaker 01:
Well, the county is before the district court.

[00:28:55] Speaker 01:
The county is a defendant in this case.

[00:28:57] Speaker 01:
And the other point I would just make is that, I mean, consider, for example, Brown versus Plata.

[00:29:02] Speaker 01:
where the Supreme Court affirmed an order requiring California to dramatically reduce its prison problem, overcrowding problem.

[00:29:10] Speaker 05:
In that case... You've got an Eighth Amendment problem there in Brown.

[00:29:15] Speaker 05:
That just strikes me as a very, very different situation.

[00:29:18] Speaker 01:
Well, we also have some constitutional issues here as well.

[00:29:23] Speaker 01:
But what I was speaking to was the challenge of injunctions having an effect.

[00:29:31] Speaker 01:
on the expenditure of funds.

[00:29:34] Speaker 01:
That clearly was true in Brown versus Plata.

[00:29:37] Speaker 01:
It wasn't just an incidental impact.

[00:29:39] Speaker 01:
It could have required a massive expenditure of funds on prison populations.

[00:29:44] Speaker 01:
And the Supreme Court has said, you know, lack of funding is not a justification for violating people's constitutional rights.

[00:29:50] Speaker 05:
I mean, you know, one thing they could have done in Brown-Merce Plot is simply let people out.

[00:29:54] Speaker 05:
They could grant much, and they did.

[00:29:55] Speaker 05:
I mean, that was, they granted parole in order to reduce the size of the prison population.

[00:30:00] Speaker 05:
So, I think California had some options.

[00:30:02] Speaker 05:
It wasn't clear that they had to do that.

[00:30:04] Speaker 05:
Now, I mean, the option here is that California could simply say, once you get to be 16, we're just no longer going to take care of you.

[00:30:11] Speaker 05:
And that would solve the funding problem.

[00:30:14] Speaker 05:
Well, which seems like that would be counterproductive to everything you're trying to do.

[00:30:19] Speaker 01:
Well, I agree.

[00:30:20] Speaker 01:
The county could improve its licensing practices so that it makes it, it streamlines the licensing process so that it's easier for providers to sign up.

[00:30:31] Speaker 01:
It doesn't take months on end or years on end to make it through the licensing process.

[00:30:36] Speaker 05:
And the district court could supervise that or just simply order them to streamline the processing?

[00:30:41] Speaker 01:
I imagine that the court would start by issuing an order that would require them to achieve a certain number of placements and would give the state and local governments flexibility in how they achieve that, which is what the court has recommended.

[00:30:56] Speaker 02:
And is licensing just purely

[00:30:58] Speaker 02:
At the county level or does that also implicate some state baseline requirements?

[00:31:02] Speaker 01:
It's the county certifies at the county level and then the state performs the licensing function.

[00:31:09] Speaker 01:
I'll just note that those state defendants who perform the licensing function are also defendants in this case.

[00:31:14] Speaker 01:
So they are not third parties in the sense that has been discussed.

[00:31:19] Speaker 05:
I'm still trying to figure out as you're describing all of this how this does not fall within a general rubric of an ongoing audit.

[00:31:27] Speaker 05:
That is, you're asking the district court to reform all of this, and it's going to supervise it.

[00:31:33] Speaker 05:
It's going to have to supervise.

[00:31:35] Speaker 05:
It's going to get reports.

[00:31:36] Speaker 05:
It's going to need to know what California has done.

[00:31:39] Speaker 05:
It's going to order California to change its processes.

[00:31:44] Speaker 05:
That strikes me as a pretty breathtaking undertaking.

[00:31:48] Speaker 01:
Well, I think that ongoing audit phraseology comes from O'Shea.

[00:31:53] Speaker 05:
And I admit it's a very, very high level of abstraction.

[00:31:58] Speaker 05:
O'Shea's different, so is Rizzo versus Good.

[00:32:01] Speaker 05:
I have the same frustration with the Supreme Court's phrase as I do with your complaint.

[00:32:06] Speaker 05:
They are both written at very, very high levels of abstraction, and I'm trying to work down that ladder, and I don't know where to go.

[00:32:12] Speaker 01:
Fair point.

[00:32:13] Speaker 01:
As you say, O'Shea and Rizzo are very different situations from what is at issue here.

[00:32:18] Speaker 01:
And it is not uncommon for federal district courts that issue injunctive relief when state and local governments violate federal law to engage in ongoing monitoring.

[00:32:29] Speaker 01:
But I think there's

[00:32:29] Speaker 01:
a gross overstatement of the amount of supervision that's involved here.

[00:32:35] Speaker 01:
We're talking about things like ending discrimination in the way that the county executive branch agencies perform their functions.

[00:32:43] Speaker 01:
We're talking about providing notice and due process to these youth so that they don't have this frustration, I mean that's putting it lightly, of filling out applications only to learn months later that those applications were never submitted.

[00:32:57] Speaker 01:
They don't have the frustration of telling DCFS that they wanted to accept a spot, only to learn that DCFS never informed the service provider that they wanted that spot and they lost it as a result.

[00:33:09] Speaker 01:
So there are a number of fairly straightforward fixes here.

[00:33:15] Speaker 01:
We haven't talked about Medicaid, but the federal government, but the states and localities have an affirmative obligation under the Medicaid Act to provide Medicaid services in a reasonably timely manner.

[00:33:28] Speaker 01:
that this court recognized that in the KDA decision.

[00:33:31] Speaker 05:
The named plaintiffs have alleged that they are... Is there any federal agency that's responsible for monitoring this in order to ensure that California is providing all of the rights that it has agreed to do so under Medicare?

[00:33:44] Speaker 01:
There is the federal centers for Medicare and Medicaid.

[00:33:51] Speaker 01:
I don't know, Your Honor, the details of how involved they get in examining the provision of services to a target population like this.

[00:34:02] Speaker 01:
I just don't know.

[00:34:06] Speaker 01:
But anyway, the point is, and one thing I would also say, there's an important decision out of this court, the BK versus Snyder decision,

[00:34:16] Speaker 01:
that held foster youth who had brought claims under the Medicaid Act and seeking procedural due process and based on lack of placements, this court held those claims were redressable.

[00:34:30] Speaker 01:
The county only has one response to that and it's in footnote three of their reply brief.

[00:34:35] Speaker 01:
They say, well, in that case,

[00:34:38] Speaker 01:
The plaintiffs were seeking relief on their individual behalf.

[00:34:41] Speaker 01:
The named plaintiffs were.

[00:34:43] Speaker 01:
Whereas in this case, they are not.

[00:34:45] Speaker 01:
But that's simply not true for each one of the claims.

[00:34:49] Speaker 01:
Named plaintiffs have suffered the injuries, and a named plaintiff like Onix G will benefit from the injunctive relief that will be given.

[00:34:58] Speaker 01:
Onix G, for example, has multiple mental health conditions that qualify as serious disabilities.

[00:35:04] Speaker 01:
She requested mental health services from the county, but the county failed to provide those mental health services to her.

[00:35:12] Speaker 01:
An injunction that required them to provide mental health services to this population would redress those injuries.

[00:35:19] Speaker 05:
Council, do your individual clients have, for example, 1983 claims that they could bring?

[00:35:25] Speaker 01:
They may, Your Honor.

[00:35:34] Speaker 01:
I haven't thought about that question.

[00:35:37] Speaker 01:
This case was purely brought on an injunctive relief basis.

[00:35:43] Speaker 03:
Can you briefly address the younger abstention and more few sins?

[00:35:48] Speaker 01:
Yes, I'd be glad to You know there's really three bases why younger doesn't apply I think the first and most basic one is We do not seek to enjoin any state dependency court proceeding and the injunctive relief that I've described throughout the course of the argument Would not in any way interrupt those proceedings it wouldn't enjoin them

[00:36:07] Speaker 01:
And remember, Amerisource Bergen says it needs to be an actual or effective injunction of the state dependency court proceedings.

[00:36:16] Speaker 01:
The mere potential for conflict isn't enough.

[00:36:19] Speaker 01:
Sprint says that the mere possibility that they could issue decisions on the same subject matter isn't enough.

[00:36:25] Speaker 01:
So no injunction.

[00:36:26] Speaker 01:
That's reason number one.

[00:36:27] Speaker 03:
Wouldn't the district court order essentially preempt the placement decision of the juvenile state court proceedings?

[00:36:34] Speaker 01:
No.

[00:36:34] Speaker 01:
Dependency court judges could go on approving the placements just as they always have at those six month hearings.

[00:36:43] Speaker 01:
The district court wouldn't overturn those, those dependency court wouldn't second guess them.

[00:36:48] Speaker 01:
It simply would address the issues that the executive branch agencies

[00:36:53] Speaker 01:
have engaged in discriminating at the application stage, which is not something that the dependency courts are involved in, providing procedural due process at the application stage, and at the push-out stage, which is not something dependency courts are involved in.

[00:37:10] Speaker 01:
And so no, I don't think it would in any way interrupt.

[00:37:13] Speaker 01:
I'll just note there are two other reasons why Younger doesn't apply.

[00:37:17] Speaker 01:
I'd be glad to address them, but I see that I'm out of time.

[00:37:22] Speaker 03:
Thank you.

[00:37:35] Speaker 00:
Your Honours, the operative pleading in this case is the first amended complaint.

[00:37:39] Speaker 00:
That is the complaint that exists because plaintiffs amended their original complaint as of right.

[00:37:45] Speaker 00:
After that point, no further amendments were allowed because the district court lacked jurisdiction.

[00:37:52] Speaker 00:
Morongo is clear.

[00:37:53] Speaker 00:
This court has reaffirmed the Morongo rule multiple times, including in Asker v. Newsom and the LA Alliance case, that if a court lacks jurisdiction to begin with, which is the allegation and the argument here before you, every one of its orders, including its order granting leave to amend, is a nullity.

[00:38:13] Speaker 00:
So you should treat the second amended complaint as not existing, the same way as if a plaintiff just unilaterally filed an amended complaint because... Well, it's not unusual if a motion to dismiss is granted by the district court or for that matter on appeal.

[00:38:28] Speaker 04:
There is commonly leave to amend if an amendment could address the problem.

[00:38:34] Speaker 04:
So I'm not entirely sure.

[00:38:36] Speaker 04:
I mean, you're true.

[00:38:37] Speaker 04:
If we decide, no,

[00:38:39] Speaker 04:
There's just no jurisdiction here.

[00:38:41] Speaker 04:
Yeah, that will end the matter, but then we don't have to worry about could the complaint be amended.

[00:38:46] Speaker 04:
So I'm not sure why you're emphasizing we're not supposed to look at the second amended complaint.

[00:38:49] Speaker 04:
I don't know that that really matters here.

[00:38:52] Speaker 00:
The reason is that the complaint cannot be amended to correct lack of jurisdiction.

[00:38:56] Speaker 04:
So the point is you're claiming there's a lack of jurisdiction.

[00:38:59] Speaker 04:
I'm not sure what the existence of the second amended complaint has to do with that.

[00:39:03] Speaker 00:
That's the point.

[00:39:04] Speaker 00:
We end up looking at the first amended amended complaint regardless.

[00:39:08] Speaker 00:
Talking about whether or not... Oh, no.

[00:39:09] Speaker 04:
That part's not true.

[00:39:11] Speaker 04:
Because if it's amendable to correct the problem, you have to consider, is it amendable?

[00:39:16] Speaker 04:
And the second amendment complaint might shed light on that.

[00:39:19] Speaker 04:
Your point is that neither one of them solved the jurisdiction problem.

[00:39:25] Speaker 00:
No, Your Honor.

[00:39:26] Speaker 00:
Our point is you don't even get to the second amendment.

[00:39:28] Speaker 04:
No.

[00:39:28] Speaker 04:
That is simply not right.

[00:39:30] Speaker 04:
If the complaint could be amended to solve the jurisdiction problem, then it's common to grant leave to amend.

[00:39:38] Speaker 04:
If the second amended complaint is an exemplar of what could be done to amend and it does solve the problem, we're entitled to look at it, decide if it could solve the problem.

[00:39:49] Speaker 04:
What's wrong with that?

[00:39:51] Speaker 00:
Because the Supreme Court ruled in Newman versus Green that that is not permissible.

[00:39:56] Speaker 04:
We're entitled to consider whether an amendment to the complaint could solve the problem.

[00:40:01] Speaker 04:
Is that correct?

[00:40:04] Speaker 00:
No, Your Honor.

[00:40:05] Speaker 04:
So we have to dismiss no leave to amend, period?

[00:40:09] Speaker 04:
We tell district courts all the time they can't do that.

[00:40:12] Speaker 00:
If the issue is that the subject matter jurisdiction was lacking to begin with, then you don't even get to the second amendment complaint because leave to amend was not permissible.

[00:40:21] Speaker 04:
Unless an amendment could solve the jurisdiction problem.

[00:40:25] Speaker 00:
And the only scenario where that is possible is if the amendment is solely as depleting.

[00:40:31] Speaker 00:
With respect to whether or not there is an ongoing, there would need to be an ongoing audit of the juvenile court.

[00:40:38] Speaker 00:
That is clearly the case and every single court of appeal except for one that has addressed this issue has found that there would need to be and that that requires younger abstention.

[00:40:48] Speaker 00:
10th and 11th circuits have all considered this issue.

[00:40:51] Speaker 00:
And they said that regardless of whether or not you're directing relief specifically at the juvenile court, effectively, the federal court would have to exercise oversight over the specific decisions made as to placements, as to medical services, and as to everything else in order to determine whether or not the relief that is granted is actually being complied with.

[00:41:11] Speaker 00:
Therefore, younger abstention is necessary.

[00:41:13] Speaker 00:
Thank you, Your Honour.

[00:41:14] Speaker 02:
Great.

[00:41:14] Speaker 02:
Thank you, everyone, for the helpful argument.

[00:41:16] Speaker 02:
The case is submitted.

[00:41:18] Speaker 02:
You're adjourned.

[00:41:21] Speaker 05:
All rise.

[00:41:37] Speaker 04:
This court for this session.