[00:00:00] Speaker 01:
And we will now hear argument in the final case of the day, Jensen versus Thornhill, a very, very, very long-running case.

[00:00:10] Speaker 01:
We've got one in California substantially the same.

[00:00:16] Speaker 01:
You're probably familiar with that one too, right?

[00:00:21] Speaker 01:
All we need is states with infinite amounts of money available to take care of the problem, right?

[00:00:30] Speaker 01:
Okay.

[00:00:31] Speaker 01:
So, one, I'm sorry.

[00:00:37] Speaker 01:
Who's arguing? Is Ms. Kendrick? I'm sorry. I'm mixing it up here. I apologize.

[00:00:46] Speaker 03:
Good morning, Your Honor. I'm Andrew Pappas. I'll be on behalf of the defense.

[00:00:48] Speaker 01:
Very well. Thank you.

[00:00:49] Speaker 03:
Just a moment while I pull out. Thank you.

[00:01:11] Speaker 01:
I imagine that if any of you have any difficulty sleeping, all you need to do is to read this record.

[00:01:17] Speaker 00:
Kept me up.

[00:01:20] Speaker 03:
It is voluminous, John. Good morning. Andrew Pappas, on behalf of the defendants and appellants, I'd like to reserve five minutes for rebuttal. Very well.

[00:01:31] Speaker 01:
You don't even have to use all your time if you don't want.

[00:01:33] Speaker 03:
Okay.

[00:01:35] Speaker 03:
Your Honor, the district court granted prospective relief without making the need, narrowness, intrusiveness findings that the Prison Litigation Reform Act requires.

[00:01:45] Speaker 00:
Can I just, I want to make sure I understand what you're arguing. And you're attacking the final order here.

[00:01:52] Speaker 03:
That's correct, Your Honor.

[00:01:54] Speaker 00:
But I think your brief makes clear some portions of that order you're not attacking because they just mirror the injunction in which the findings were made.

[00:02:03] Speaker 03:
Your Honor, what we're challenging on appeal is the district court's failure to make the required PLRA findings. So we're not challenging.

[00:02:11] Speaker 00:
Okay, so let me focus on that.

[00:02:13] Speaker 03:
Sure.

[00:02:14] Speaker 00:
If the district court made the PLRA finding in the injunction to which you stipulated, and the final order just orders exactly the same thing as the injunction, are you claiming the order was deficient in that respect?

[00:02:31] Speaker 03:
Well, Your Honor. Yes or no?

[00:02:33] Speaker 03:
It does not simply order what is in the injunction. It is not a simple enforcement order.

[00:02:38] Speaker 00:
I understand it's an enforcement order. Let's say the injunction says you must keep the temperature in a cell at 71 degrees. And the final order says you must keep the temperature in the cell at 71 degrees. One is an injunction, the other is an enforcement order. The judge made in the injunction the appropriate PLRA findings. Are you saying that as to something which exactly mirrors the injunction, and I have a little chart here, and I think you'll agree, some of the things in the final order mirror the injunction.

[00:03:14] Speaker 00:
They're exactly the same thing the injunction required.

[00:03:17] Speaker 03:
So, Your Honor, let me step back. Are there? Well, so when we're referring to the final order, I'm referring to the order in which the district court approved the final staffing plan.

[00:03:28] Speaker 00:
That's right. That's what I'm referring to, too.

[00:03:29] Speaker 02:
We're talking about the final staffing plan. And what Judge Herman was just saying, the final staffing plan differs from the order and injunction in some ways, but not others.

[00:03:42] Speaker 03:
Your Honor, we are not, in this appeal, challenging the particular provisions of the final staffing plan. What we're challenging is the district court's failure to make the required PLRA findings in its order approving the staffing plan. And I'll say, Your Honor.

[00:03:56] Speaker 00:
Okay, no, but I'm still there stuck. Parts, she approves the staffing plan in the final order, correct?

[00:04:04] Speaker 03:
That is correct.

[00:04:04] Speaker 00:
Okay. Parts of that staffing plan were exactly what she had ordered in the initial injunction to which you stipulated, correct?

[00:04:13] Speaker 03:
There are aspects of the statute plan.

[00:04:15] Speaker 00:
Okay, there are aspects.

[00:04:16] Speaker 03:
Parts and aspects of the same thing. And there are vast aspects of the final statute plan.

[00:04:20] Speaker 00:
Okay, let's talk about the gaps later. I'm just talking about the ones that are exactly the same thing that she ordered in the injunction.

[00:04:29] Speaker 00:
Why does she have to make the same findings she made at the time of the injunction All over again here. Don't we read the record as a whole?

[00:04:38] Speaker 03:
No, Your Honor, you do not. You read the decision as a whole. And what the decision says is it reflects that Section 1.17 of the injunction, which is what the district court approved the staffing plan under, contemplates a process by which... Okay, but I'm not talking about the staffing plan now.

[00:04:55] Speaker 00:
That's why we're missing each other. I'm talking about the final plan has more than... Well, the final plan has a number of provisions in it. Some of the provisions are exactly the same as what the judge ordered in the injunction, are they not?

[00:05:11] Speaker 00:
Some of them are. Okay, as to those. Again, Your Honor. As to those, your position is she has to make the finding all over again?

[00:05:19] Speaker 03:
My position is the PLRA requires courts to make need, nearness, intrusiveness findings whenever they order prospectively. Okay, so your position is that she does have to.

[00:05:30] Speaker 02:
The staffing order actually deals only with staffing.

[00:05:35] Speaker 03:
Right. Well, it deals with staffing is hiring supervision.

[00:05:40] Speaker 02:
But it doesn't deal with a lot of the other things that are in the injunction. Originally, 2023 injunction. That is correct. So we're only talking about the staffing. All right. Now, let me I have a question, which is your problem is only that you didn't say these words. Suppose we were to have a limited remand and tell her, you know, say the words. Would that be okay?

[00:06:00] Speaker 03:
It would not, Your Honor. No, our position is that the findings need to be meaningful.

[00:06:05] Speaker 00:
But that's a separate issue. You're now challenging just the failure to make the findings.

[00:06:11] Speaker 03:
We have two questions presented. One is the failure to make the findings, and then our second is that on remand, this court should direct the district court to make specific findings.

[00:06:19] Speaker 00:
Let's assume that we don't want to boss around the district judge. Your only deficiency that you're alleging on appeal is that she didn't make the findings, right?

[00:06:29] Speaker 00:
Because you can't be complaining that she wasn't specific enough in making them since she didn't make them. Okay, so why don't we, and I want to inject a little common sense into this, which both sides may reject.

[00:06:44] Speaker 00:
We all know beyond a shadow of a doubt that Judge Silver meant to comply with the PLRA because she did so so many times before. And we all know beyond a shadow of a doubt I'll take your bet at whatever odds you want that if we send this back to Judge Silver, she'll simply make the findings.

[00:07:05] Speaker 00:
Indeed, if we were in a different world, we'd just call her up. She's in the building and say, did you meet in the final order, the final staffing plan to comply with the PLRA? And we'd say yes. And we'd say, well, you didn't say so. Would you say so? And she'd say yes. So Judge Berzant's question is, why don't we just suspend this appeal? Let you go back to the district judge and say, judge, you forgot to make the findings. And she will. And then we'll be back here. And you can argue about the sufficiency of the findings.

[00:07:36] Speaker 00:
Now, we've been at this for 20 years. Because once we get to the sufficiency of the findings, I think we approach them with a whole history of the litigation in mind, knowing how badly your client has acted over 20 years of this litigation.

[00:07:54] Speaker 00:
If your point is that she didn't make the findings, let's have her make them.

[00:07:59] Speaker 00:
Your Honor, we asked... You won't take that as a victory? Your Honor, we asked... You want us to tell her to make the findings, but you also want us to tell her how to make the findings?

[00:08:09] Speaker 03:
Your Honor, we asked the district court to make the findings. The plaintiffs asked the district court to make the findings. The district court did not make the findings. And the PLA doesn't require us and doesn't expect us to guess... No, I understand.

[00:08:20] Speaker 00:
It doesn't. You've got a complaint. Let's assume we think you're right.

[00:08:24] Speaker 00:
Let's ask her to fix it.

[00:08:26] Speaker 03:
Your Honor, I think that the reason why this court ought to direct the district court to make meaningful findings, which is what the PLRA requires under this court's own case law, is because in making those findings, the district court may discover that, in fact, the relief this orders is not narrowly drawn. In fact, it extends further than necessary.

[00:08:46] Speaker 02:
The findings that she made, the order that she made, was evolved through a complicated and lengthy process.

[00:08:55] Speaker 02:
with the help of experts, with input from the parties, with hearings, with explanations as to why she included each provision. And that asking for. The explanations were in the order of, I've tried to do this less specifically.

[00:09:20] Speaker 02:
I've told the parties to do this. They haven't done what I've told them to do. I have no choice but to be much more specific than one would ordinarily be. I don't really know how to do this, so I'm going to have experts do it. We're going to have pilot projects. We're then going to incorporate what the pilot projects show into the final staffing order. It seems that there was explanations galore. What's missing is a sentence.

[00:09:45] Speaker 03:
Respectfully, Your Honor, I disagree. There is no explanation whatsoever in the final staffing order, and there is no indication... Because she didn't make the findings.

[00:09:53] Speaker 00:
So you're asking us to anticipate in advance that when she makes the findings, which she surely will when we send it back, nobody doubts that, that she will do so in an insufficient manner. We're dealing with a district judge here who has served for 30-something years, who's so far complied with the statute twice, absent any complaint. You never complained about the injunction. And so you're asking us, just because the department thinks you're stupid, we're instructing you in advance how to make the findings.

[00:10:27] Speaker 00:
I must tell you, I'm not inclined to do that. Maybe my colleagues are, but I'm not.

[00:10:34] Speaker 03:
Your Honor, no, not at all. We're not anticipating the district court do anything except comply with the PLRA.

[00:10:39] Speaker 00:
So am I. So if we tell her we're sending this back for you to comply with the PLRA, let's see if she does. We should anticipate in advance you're saying that she won't and instruct her how to do it correctly?

[00:10:55] Speaker 03:
I think all we're asking for is that the court instruct the district court to make meaningful findings.

[00:11:00] Speaker 00:
Let me ask you a separate question while we're on this topic. Certainly. When the final plan came out, the judge said to both sides, here's the final plan. Do you have any objections to it? And you had a number of objections. This provision doesn't comply with the PLRA because it's not narrow enough. And I'm using you, by the way, to mean the ADC, not this council personally. I understand that you come in at a later stage.

[00:11:30] Speaker 00:
And you have a number of them. You say, as to these, I don't think this one complies with the PLRA. You don't say that about the provision that requires the addition of physicians and mental health assistants.

[00:11:43] Speaker 00:
No objection whatsoever to that provision.

[00:11:47] Speaker 00:
Shouldn't the judge have understood from that that you weren't contending that that provision didn't comply with the PLRA?

[00:11:54] Speaker 03:
Your Honor, we, as Your Honor points out, made objections to many aspects.

[00:11:59] Speaker 00:
Right, but not to that aspect of the final plan.

[00:12:03] Speaker 02:
Actually, not that many. Three or four.

[00:12:07] Speaker 03:
Your Honor, obviously we had a limited opportunity, page-limited opportunity in which to make objections.

[00:12:14] Speaker 00:
Well, you actually appended an exhibit that said you've got a page limit, so here's some more objections we want you to. So I looked through all those carefully. And you can correct me if I'm wrong. I don't find a single objection raised to the number, to the part that says add this many physicians and add this many assistants. Am I wrong?

[00:12:36] Speaker 03:
Yeah, I'm not sure. Forgive me. I'm not sure precisely which provision of the final staffing plan you're referring to.

[00:12:41] Speaker 00:
Okay, I'll read it out loud to you so there'll be no... Sure. So there'll be no...

[00:12:45] Speaker 00:
There's a provision of the final plan. It differs a little bit from the initial plan, but it says that you must staff up to a certain level of physicians and mental health assistants. You familiar with that provision?

[00:12:59] Speaker 03:
Your Honor, forgive me, I'm not familiar with the specific provision you're referring to in the 78-page final staffing order.

[00:13:04] Speaker 00:
It requires, now it's at 2ER138, and it says it requires staffing of 1,017 primary care physicians and 482 mental health physicians. Are you familiar with that provision?

[00:13:25] Speaker 03:
I'm sorry. I'm looking at it as we speak. 1,014 and... That's in the initial plan. It changes in the final plan to 1,017 and 482.

[00:13:37] Speaker 03:
Your Honor, whether there's a specific objection to that particular number, I do not know.

[00:13:41] Speaker 00:
Okay, I'll ask you. Was there a specific objection to that number?

[00:13:46] Speaker 03:
The objections are that the plan as a whole is not narrowly drawn and extends further than necessary to correct the violations.

[00:13:52] Speaker 00:
I know that's your objection. But you did raise very specific objections to other parts of the final plan, did you not? You said this one, the one that, for example, requires shifting of patients...

[00:14:08] Speaker 00:
at levels 3B and 3A to the next highest level, you said that's not sufficiently narrowly drawn. Or the one that requires one physician and a psychiatrist and not APPs to be on call after hour. We objected to many ways in which the final... You objected to many specific... Now, let me finish.

[00:14:27] Speaker 00:
I know what your spiel is, but I want to get your answer to a specific question. You objected to many specific provisions of the final plan by saying they're not sufficiently narrowly drawn, correct?

[00:14:42] Speaker 03:
We objected to specific provisions as well as the plan as a whole that it does not meet the PLRA standard. And we pointed out numerous ways in which specific provisions drive up the staffing numbers in the overall plan. And it was the district court's responsibility to find the final staffing plan is narrowly drawn. Okay, so now here's my next question.

[00:15:01] Speaker 00:
Why wasn't her rejection of your objections effectively an adoption of the notion that it was PLRA compliant?

[00:15:09] Speaker 03:
Your Honor, there is no case that I'm aware of that holds that a district court's refusal to make the PLRA...

[00:15:16] Speaker 00:
where the judges twice before made the appropriate PLRA findings.

[00:15:20] Speaker 03:
There's no exception in the statute for long-lived cases.

[00:15:25] Speaker 03:
This court in Alua, for instance, reversed where the district court did not make PLRA findings. There is no requirement that this court guess at or assume what the district court had in its mind, the PLRA required specific findings to be made. They were not made. It's that simple.

[00:15:41] Speaker 02:
What kind of specific requirements are you asking for? Are you asking for a provision by provision finding, or are you asking for an overall finding?

[00:15:54] Speaker 03:
Your Honor, we're asking for a finding that is clear enough to explain what was in the district court's rationale in concluding that this relief extends no further than necessary to correct the constitutional right.

[00:16:08] Speaker 00:
That's not what Judge Berzon asked. Judge Berzon asked, are you asking for provision by provision finding, or are you just asking for a finding that as a whole, the plan goes no further than is necessary?

[00:16:20] Speaker 03:
We're asking for something in between. Because we understand the court's case law says that provision by provision is not required. But it also says that the overarching inquiry is whether the vindication of the right could have been achieved by narrower means.

[00:16:37] Speaker 02:
If we suspend the case, but have a limited remand, she says the same sentence that she said several times before, which just repeats what's in the statute. Are you going to come back here and say that's insufficient?

[00:16:50] Speaker 03:
We might, Your Honor. I don't know.

[00:16:52] Speaker 00:
And how would we review that argument if you did?

[00:16:55] Speaker 00:
What would be our standard of review?

[00:16:57] Speaker 03:
I think that, well, the court reviews the application of the PLRA de novo. It reviews findings made for clear error and reviews the scope of an injunction.

[00:17:06] Speaker 00:
Okay, so if she made that finding. Well, again, our hope is that the district court will make meaningful findings, Your Honor. I understand you want to say stuff, but I do too, and I'm up here.

[00:17:14] Speaker 00:
So she makes the finding, same one she's made twice before. As to the final, we send it back and say, you forgot. Make a find. Make the appropriate finding. And she says, I find that this final staffing plan meets the requirements of the PLA. It's narrowly drawn. She uses the language of the statute. And then you come back here and you say to us, we want to contest that. We would review that with great deference to the district judge, would we not?

[00:17:40] Speaker 03:
the court would review findings of fact for clear error. But again, what we hope is that on remand, if the district court goes through this exercise, which is not simply a box-checking exercise.

[00:17:49] Speaker 00:
Well, what if the district court said, look, you've got to view this all as a whole. These guys have been contemptuous for 20 years. They have violated the rights of the plaintiffs in this case repeatedly. They failed to follow the settlement. So when I put this, and I've asked a bunch of experts to design a plan that's as narrowly focused as possible, which she did. That was the instruction to the experts. And I find that they succeeded. Are you saying she then must go down finding by finding and find that each one is the least required?

[00:18:25] Speaker 03:
I think that the more extensive relief a court orders, the more it should show why that is not.

[00:18:31] Speaker 00:
I asked you whether she has to go down finding by finding.

[00:18:35] Speaker 03:
I think she needs, no, I mean, I think there may be cases in which provision by provision explanation is warranted. Obviously, we would welcome that here. But at a minimum, I think what the district court must do is explain why the relief in this staffing plan, which adds more than 600 new employees to a tune of $100 million, why that and why this very granular approach is the narrowest means of vindicating the rights of issues.

[00:19:01] Speaker 02:
She has explained it many times why the granular approach is necessary. But she has not explained it. She's explained it and she's explained it. So, I don't know. As to granularity, I don't know what more she's going to say, except that when I tried to do it in a non-granular fashion, you didn't do anything.

[00:19:19] Speaker 03:
Your Honor, and I'd like to try to reserve a little bit of time for rebuttal. Go ahead.

[00:19:23] Speaker 01:
You can reserve that time.

[00:19:24] Speaker 03:
Okay. Thank you.

[00:19:28] Speaker 01:
Very well. Let's hear from the state.

[00:19:31] Speaker 05:
Good morning, Your Honors. Corrine Kendrick for Plaintiffs Appellees.

[00:19:35] Speaker 05:
The PLRA does not require rote recitation of a verbal formula or citing a statute. It requires that relief, in fact, be limited to what is required to correct the constitutional violations.

[00:19:48] Speaker 00:
Well, doesn't it also require, that's the substantive requirement, but it also requires that the judge make that finding. In other words, there's two separate issues here. If she made the finding, we would then review her finding to see whether or not it met the substantive requirements of the statute. whether the plan did, but she didn't.

[00:20:08] Speaker 00:
You know, there's a final staffing plan here that she didn't make the finding, whether it's rote or otherwise, she just simply didn't make it. Now, as I said before, I'm sure she wanted to, and I'm sure this was just an oversight, but she didn't make it. So why don't we just send it back to her to make it?

[00:20:31] Speaker 05:
If you do that quickly, that would be great so we can get the show on the road because people are continuing to suffer.

[00:20:36] Speaker 00:
I wanted to ask Mr. Pappas this, too, so maybe he can respond to it. If we did that, if we simply suspended the appeal and revested jurisdiction in the district court.

[00:20:48] Speaker 02:
And even said, and we want it back in a month.

[00:20:51] Speaker 00:
And said you must mandate issued right away. And we said we either make the findings. If you don't, then maybe your final staffing order is no good. If you make the findings, then we'll get to the substantive question of whether or not it complies with the act. What bad happens in the meantime?

[00:21:11] Speaker 05:
The only bad I could see, Your Honor, would be delay.

[00:21:14] Speaker 00:
This is one case where the prospect of delay seems to be baked into it, doesn't it?

[00:21:23] Speaker 05:
Certainly, we're on our fourth district judge and new plaintiffs. So, yes, delay is definitely big.

[00:21:29] Speaker 02:
One observation is that the way the scheme was set up, the final, it wasn't an automatic run from the injunction to the experts to the stamping plan because she always said, if approved by me. So, therefore, it doesn't seem possible to take her out of the picture. in terms of what it was that the experts recommended. And therefore, the order was her order, not simply the publication of the expert's order.

[00:22:03] Speaker 02:
Is that right?

[00:22:04] Speaker 05:
Yes, ma'am. And I think that raises a good point, Your Honor, is that you can't read the page and a half June 2025 order in a vacuum as defendants are inviting you to do. That's just not what this court does historically. If you look at the Armstrong cases, all four of them that we cite, if you look at Parsons, if you look at Edmo, if you look at Kelly, what the Ninth Circuit does is it looks at the picture as a whole. And so here, if you look at that June 2025 order, she's citing back to the injunction.

[00:22:36] Speaker 02:
She's citing back to the June 2024 order where she originally... My point was that she did in fact reserve a decision-making role for herself.

[00:22:48] Speaker 02:
And that would seem to suggest that it isn't simply a replication of the earlier orders or even an enforcement of the earlier orders.

[00:22:59] Speaker 05:
Well, the staffing plan was envisioned in the injunction to which the... What if the final order said you will add a million new doctors?

[00:23:09] Speaker 00:
Would you say it was good enough because the injunction envisioned that there would be a staffing plan? No, but... Your Honor, the point... Well, where did the number come from? The number doesn't come from the injunction. It comes from factual recommendations that are made to her and get tinkered with a little bit. And so why shouldn't the PLRA, aside from a waiver or forfeiture issue, why shouldn't the PLRA apply to that kind of finding?

[00:23:36] Speaker 05:
But as you pointed out, when the first version of the plan came out, with the pilot project, which the pilot project is the living embodiment of the needs, narrowness, intrusiveness inquiry, because she said, let's test this before I make a final order and see how it works.

[00:23:53] Speaker 00:
But this is different than the pilot. Just to take the one that Mr. Pappas and I went back and forth on, it involves 80 more non-physicians being added to staff than the pilot.

[00:24:04] Speaker 00:
So finding that the pilot program, even if applied across all the facilities, was the least intrusive method. Doesn't mean that 80 more is the least intrusive method, does it?

[00:24:17] Speaker 05:
No, but the other thing that you pointed out when you were questioning Mr. Pappas is that there were countless rounds of commentary, objections, responses to objections.

[00:24:28] Speaker 00:
I asked you to put a waiver or forfeiture issue aside. Your argument seems to be it doesn't matter what the number is in the final plan because the injunction envisioned more staffing. And so this is just a minor bagatelle, a detail. And I'm saying if that's true, then your argument would justify enormous numbers of people.

[00:24:50] Speaker 05:
No, the whole point of the pilot was to determine whether the estimates were correct. And you also not only have to look at her order from 2024 when she approved the pilot, but the four and a half hour hearing that we held upstairs where She had the experts answer questions from defendant's counsel about their methodology, how they arrived at the number, and she said the whole point of this pilot is to find out if these numbers are accurate.

[00:25:18] Speaker 00:
Well, but let me ask you a question about that order, about the initial plan, if you would. Sure. It does have the PLRA language in it, but I think as I read it, that language only applies to whether we should have a pilot program. That's correct. It doesn't apply to the numbers.

[00:25:35] Speaker 05:
Well, and that's because at the hearing, At the hearing before that order, so there was a hearing in 2024 before the June 2024 order came out, defendants counsel came in and their counsel objected to the pilot program that their staff had recommended to the experts. And so Judge Silver was like, what's going on?

[00:25:59] Speaker 00:
She found the pilot program complied with the PRA.

[00:26:02] Speaker 05:
Yes, but she said, we all agree that the staffing plan is coming out of the injunction, right? Right. But they were saying, and so she was asking them, well, why do you think that it's okay for me to order the plan to go to all nine prisons in 86 yards, but you're sitting here objecting to me ordering a pilot at two yards? at two different prisons to kick the tires and find out if these numbers work, that doesn't make sense.

[00:26:26] Speaker 00:
Okay, but I've still got the same question. Even assume she approved the whole initial plan. Yeah. The final plan is different than the initial plan in some respects, is it not? Yes, it goes up 5% based on what the... Well, and it has provisions that the initial plan didn't have.

[00:26:46] Speaker 02:
In particular, it has this provision about the medical directors not being able to have, before they had up to 100 patients, now they have no patients.

[00:26:55] Speaker 05:
Correct.

[00:26:57] Speaker 02:
And there was an explanation, which might meet the necessity standard, which is that these people need to be able to run the teams essentially and not spend time seeing patients themselves. So there is an explanation, but it is a bit different.

[00:27:15] Speaker 05:
So if you need it. Actually, the injunction said that the facility medical directors could carry caseloads if they were not doing all of these supervisory administrative tasks. What they found out.

[00:27:32] Speaker 02:
That's what I said. I didn't see that. I thought you said they could have up to 100 patients.

[00:27:38] Speaker 05:
But and so if they, when they did. If not.

[00:27:44] Speaker 05:
Sorry, what?

[00:27:45] Speaker 02:
I am seedy if not, but go ahead.

[00:27:52] Speaker 02:
Go ahead.

[00:27:52] Speaker 05:
Anyway, the point being is that there was conditions in the injunction about the facility medical directors. When the pilot project was done, that's when they learned information and they tightened and strengthened the plan.

[00:28:08] Speaker 00:
So they changed over time. And what I understand you're, your friend to be saying is that change, put aside the whole plan for a moment, that change is part of a plan that needs to be justified. And I guess I'm sympathetic to the extent that the final plan couldn't be found anywhere else previously. In other words, and that was the question I asked Mr. Pappas, so I'd like to ask you, are there provisions in the final plan that absolutely mirror what was required in the injunction?

[00:28:42] Speaker 00:
Yes, there are. That's what I thought. But I want to... Before you tell me what you want to tell me, answer the question I want to ask. What were they?

[00:28:51] Speaker 00:
Yes, there are provisions. What were they?

[00:28:55] Speaker 05:
There were provisions about the fact that advanced practice practitioners needed to be supervised. That was in there. That they needed to stop having an over-reliance on LPNs and behavioral health texts that were basically being asked to practice medicine or pretend to be registered nurses.

[00:29:12] Speaker 00:
See, and my sense is to the extent that they... mirror previous requirements, and the judge had made the PLRA finding as to those previous requirements, I'm not sure she needed to make them again. I take it Mr. Pappas' argument is, well, maybe, but we have a whole plan here. And as to that plan, she needs to make the PLRA findings.

[00:29:32] Speaker 05:
Well, also, sir, if you go to the staffing plan, for example, at 2ER139, page 4, there is a header that says elements of the injunction that inform primary care staffing plan. And there's a page and a half of bullet points that reference back to the injunction. At 2ER149, it says elements of the injunction that inform outpatient mental health staffing plan. Again, a page of bullet points.

[00:29:57] Speaker 00:
But the argument here is not that they don't follow from the injunction. The argument here is that the PLRA requires something more, and that as to these provisions that pop up for the first time, either in the initial plan or the final plan, you need a PLRA finding.

[00:30:14] Speaker 05:
No, sir, because the approach that the Ninth Circuit uses from Schwarzenegger, Armstrong versus Schwarzenegger on, is that you look at the relief as a whole. By getting into the weeds here and talking about did the facility medical director's have to have a caseload of 100 or a 75.

[00:30:29] Speaker 02:
The challenge here is technical and perhaps petty and maybe silly, but it is that even as a whole, there's no statement in this final standing.

[00:30:44] Speaker 05:
Yes, but I think we need to really drill down. What are the defendants asking for? Because if you look at their opening brief and you look at their reply, At one point, they're getting in the weeds. This exceeds that. But then in their reply at page 28, they say, we're not asking the court to say that the staffing plan exceeds the PLRA. They keep saying they want findings, but they don't say findings of what.

[00:31:08] Speaker 01:
And what do we do with the fact that Judge Silver repeatedly says, I'm complying with the PLRA by doing X?

[00:31:18] Speaker 01:
I don't know how many times she's said it, but it's in there a lot. Yes, sir. To me, it's almost, you know, it's not necessary to have her do it again. From her perspective, she has said, I am complying with the PLRA. We'll agree or we don't agree. But she says she's complied.

[00:31:41] Speaker 01:
And in some cases, in great detail. Am I missing something?

[00:31:44] Speaker 05:
You are not, sir. And I think this court can be very assured that Judge Silver is acutely aware of her obligations under the PLRA. She has acknowledged that need to comply in the 2022 liability order. She said she was mindful of her responsibilities. In the 2023 injunction, she said she respects it. I would note the receiver order that we filed with our 28J letter.

[00:32:10] Speaker 05:
She quotes the 3626 a1a so She she is she is well aware that the PLRA exists.

[00:32:18] Speaker 00:
I don't doubt anything you said and It may be sufficient as judge Smith suggests, but I'm guess back to my practical self You haven't suggested anything terrible will happen if we say judge ADC is complaining that you didn't say the magic words say the man would give you 30 days 15 days to say the magic words and And then he can come back here and argue why the way she said it wasn't sufficient. We'll be here.

[00:32:43] Speaker 00:
Hopefully all three of us will still be here. But if not, three others will be here.

[00:32:49] Speaker 00:
He doesn't seem to have any problem with that other than our failure to tell a very experienced district judge how to do her job. So why don't we just do that?

[00:32:58] Speaker 05:
You certainly can tell her to add the 32 magic words. Or you can look at cases like Kelly, where the Ninth Circuit affirmed an order where 3626A was not cited or quoted or mentioned at all by the district court in Idaho. So there is precedent for this court swiftly affirming a district court order that does not encant and quote 3626A specifically, but in all means complies with both the policy reasons.

[00:33:30] Speaker 02:
Kelly, as I understand, there was no change between the earlier order and the later order.

[00:33:37] Speaker 02:
It was just extended. No substance.

[00:33:42] Speaker 05:
The district court order in Kelly did extend the deadlines, but it also did require some adjustments to staffing and to reporting.

[00:33:49] Speaker 00:
I see. Thank you. But there were specific findings. There were specific staffing requirements in the original order, were there not?

[00:33:58] Speaker 05:
Yeah, and it built off of those.

[00:34:00] Speaker 00:
Right, but there's not one in the original injunction here. Yes, there are. The original injunction has numbers?

[00:34:06] Speaker 05:
Our original injunction, what Judge Silver did was she said, I want you guys to immediately hire a certain number of doctors and psychiatrists and psychologists while we get the staffing plan going because I want to make sure the staffing plan is going.

[00:34:18] Speaker 00:
Right, but this one has larger numbers, right?

[00:34:20] Speaker 05:
Yes, of course. Of course. Yes, sir.

[00:34:26] Speaker 01:
Do you have other issues?

[00:34:28] Speaker 01:
Questions by my colleague?

[00:34:32] Speaker 01:
Lori B. Thank you very much. Thank you. So we have a brief rebuttal. Thank you, Your Honor.

[00:34:38] Speaker 03:
I know I have only a couple of minutes, so let me just hit a couple of points. The first is that we're not asking for the incantation of magic words. We're asking for findings. What we're asking for is findings that meaningfully explain and ensure that the relief in this staffing plan is, in fact, narrowly drawn, extends no further than necessary.

[00:34:58] Speaker 01:
But, counsel, Judge Silver has repeatedly said this does that.

[00:35:04] Speaker 03:
No, she has never said that with respect to the staffing plan, Your Honor.

[00:35:07] Speaker 01:
But she says it complies with the requirements of the PLRA.

[00:35:11] Speaker 03:
No, she does not. There is absolutely no indication whatsoever in the record that the district court found that this staffing plan, which adds more than 600 new employees to the tune of $100 million, is narrowly drawn and extends no further than necessary to correct the violation of federal law.

[00:35:28] Speaker 00:
Well, there is an indication in the record. You went to her. and said this staffing plan is not narrowly drawn. And she rejected your argument. Correct? Your Honor, she did not make the final... That's a separate issue. You're saying there's no indication in the record that she thought this plan was narrowly drawn. And that's what I'm calling you on. You may be right that absent incantation of the magic words in the final order that she's made an error. But don't tell me she didn't.

[00:35:59] Speaker 00:
She didn't carefully consider and reject your argument that this wasn't narrowly drawn.

[00:36:04] Speaker 03:
Your Honor, we don't know because it's not in the order.

[00:36:06] Speaker 00:
That's right.

[00:36:07] Speaker 03:
You don't know because she didn't say the magic words. Because she didn't make the findings the PLA requires. If I might just make one additional point.

[00:36:13] Speaker 02:
For example, with regard to the requirement that the medical directors can't have 100 patients anymore, she explained why. Why it wouldn't work.

[00:36:26] Speaker 03:
No, she did not, Your Honor.

[00:36:27] Speaker 02:
The experts in- Okay, and she adopted their explanation, so that's the same.

[00:36:32] Speaker 03:
Well, I don't know that she adopted it wholesale, Your Honor, but I don't think even the experts can show that there is not a direct conflict between what the injunction requires and then what the staffing plan requires. And there's- Where's the conflict?

[00:36:47] Speaker 02:
The conflict is that the- All the injunctions will say, go have a staffing plan, so how could there be a conflict?

[00:36:54] UNKNOWN:
What?

[00:36:55] Speaker 03:
Well, okay. With respect to the facility medical director provision in particular, the injunction specifically says that facility medical directors in high-intensity facilities shall be assigned up to 100 patients.

[00:37:08] Speaker 02:
The injunction says that?

[00:37:15] Speaker 02:
Staffing plan.

[00:37:16] Speaker 03:
The injunction says that in section 6.2 at 2ER236. That is a specific provision in the injunction. The final plan says we're doing away with that because now we're giving the FMDs additional supervisory responsibilities that are not in the injunction. And that has the effect of driving up the staffing numbers.

[00:37:36] Speaker 02:
But she explained why.

[00:37:38] Speaker 03:
She did not explain why, Your Honor, respectfully.

[00:37:41] Speaker 02:
I understood her to say because there's now a team approach to the medical staffing and there has to be somebody in charge of the team and that's what the FMDs are going to do.

[00:37:53] Speaker 03:
What there is no explanation.

[00:37:54] Speaker 02:
I make that up?

[00:37:56] Speaker 03:
Your Honor, that is not in the final staffing order, no. And what there is not an explanation of is why this extends no further than necessary to correct the violation of the constitutional right. Now, my friend on the other side.

[00:38:08] Speaker 01:
You're over your time. Let me ask my colleagues whether either has highly important questions that they want to ask before we adjourn.

[00:38:17] Speaker 00:
I do not.

[00:38:20] Speaker 01:
Thank you both for your argument. We appreciate it. The case of Jensen versus Thornell is submitted and the court stands adjourned for the day.