[00:00:00] Speaker 01: Case 15-8009, Enray Herman Brewer, individually and on behalf of a class of all other persons similarly situated. [00:00:10] Speaker 01: Mr. Henderson for the petitioner, Mr. Salzman for the respondent. [00:01:00] Speaker 00: Mr. Henderson. [00:01:11] Speaker 06: May it please the court, my name is Thomas J. Henderson. [00:01:14] Speaker 06: I'm here on behalf of Petitioner. [00:01:22] Speaker 06: The district court's unprecedented order denying certification and dismissing all of the class claims, ending seven years of litigation, sets a disastrous precedent that needs to be reversed for three reasons. [00:01:37] Speaker 06: First, ruling completely misapplies the standard for adequacy under Rule 23A-4. [00:01:46] Speaker 06: Second, it wrongly applies the claim-splitting doctrine to employment discrimination class actions. [00:01:53] Speaker 06: And third, it wrongly dismissed all class claims, rather than allowing class members to cure the adequacy concerns it identified. [00:02:06] Speaker 06: With respect to Rule 23A for adequacy, [00:02:11] Speaker 06: The court basically erred in applying the proper standard of Rule 23A for adequacy regarding Brewer's ability to represent a class action seeking monetary damages under Rule 23B3. [00:02:28] Speaker 06: The court failed to inquire whether Brewer had any fundamental conflict that was somehow adverse with respect to the class for the purpose of seeking monetary relief. [00:02:40] Speaker 06: Instead, the court looked no further than to the wording of the complaint and failed to engage in any analysis of the Rule 23A4 standard. [00:02:52] Speaker 06: Essentially, the court erred in holding that the requisites for class certification of one type of class action be two, [00:03:01] Speaker 06: somehow govern certification of a different type of class under B3. [00:03:08] Speaker 06: This court has recognized in In Re Veneman that certification of classes for monetary damages are different than certification of classes for injunctive relief. [00:03:19] Speaker 06: And the Supreme Court in Walmart versus Dukes made unequivocally clear [00:03:24] Speaker 06: that the claims for monetary damages under B3 belong under B3. [00:03:32] Speaker 06: And they hold that Brewer's status as a former employee is completely irrelevant to the question of whether he could prosecute a class action for monetary relief in a class certified under B3. [00:03:48] Speaker 03: At least as far as I'm concerned, this is not the best use of your time. [00:03:53] Speaker 03: We've got major issues prior to reaching the certification, the merits of the certification, denial or to deny of denial. [00:04:04] Speaker 03: Starting with the intervention. [00:04:09] Speaker 06: Thank you, Your Honor. [00:04:14] Speaker 06: With respect to the motion to intervene, the law is clear that the standards for intervention in this Court are the same as in Rule 24. [00:04:22] Speaker 06: And here, the interveners all meet the standards for intervention as of right. [00:04:29] Speaker 06: as they have interest in this case, which otherwise would not be represented. [00:04:35] Speaker 03: As briefly as possible, what's the impairment that you're asserting? [00:04:41] Speaker 06: In the absence of intervention here, Your Honor, there is no guarantee that class members will ever be able to obtain a palate review of the order denying certification of the class that they would have been members of. [00:04:55] Speaker 03: And if that all pans out, there's the question of the interlocutory review, which precedes immediately all of what you said about the merits. [00:05:09] Speaker 06: Let me turn to the question. [00:05:11] Speaker 06: This was originally filed. [00:05:13] Speaker 06: This is a hearing on a petition under 23-F. [00:05:16] Speaker 06: I'd note that petition was filed 11 months ago. [00:05:19] Speaker 06: I think as the record now reflects in the motion to intervene, [00:05:23] Speaker 06: the the court has the case below has now ended. [00:05:28] Speaker 06: And absent the class certification order, the individual plaintiffs have resolved their case with the government and the case has been dismissed. [00:05:37] Speaker 06: There's a motion for interveners to have, the interveners have filed a motion to intervene for purposes of appealing the class certification judgment from the final order dismissing the individual claims. [00:05:52] Speaker 06: That motion is pending before the district court. [00:05:55] Speaker 06: District court has not acted on that yet. [00:05:57] Speaker 06: So, in short, Your Honor, the circumstances in this case are very peculiar. [00:06:04] Speaker 03: Under the special circumstances... You're not really maintaining that they fit into any of the three categories in the recipient. [00:06:12] Speaker 03: This is one of the outside of the three. [00:06:14] Speaker 06: Let me say, these are not only special circumstances, but extraordinary circumstances, Your Honor. [00:06:20] Speaker 06: In the 11 months since the petition was filed, in fact, the case has ended, and the people before the court in the, this court in the motion to intervene are the same individuals who have moved to intervene for purposes of appeal in the district court. [00:06:35] Speaker 06: In effect, [00:06:36] Speaker 06: The case has caught up with the petition. [00:06:40] Speaker 06: And I would suggest that the court should grant review on the merits now, because the same parties are here, we're in the same position as it would be at end of case review. [00:06:52] Speaker 03: And there's no- How is that possible if Mr. Brewer has voluntarily dismissed his claim? [00:07:01] Speaker 03: The fact that Mr. Brewer- In other words, a lot of the concern of the district court in denying class certification had to do with the adequacy of Mr. Brewer, for instance, who is now out of the case. [00:07:14] Speaker 03: Yes, sir. [00:07:15] Speaker 03: Right? [00:07:18] Speaker 03: If the intervener, would-be interveners are indeed permitted to intervene here. [00:07:26] Speaker 03: there was, and the case were to go back to the district court, there'd be no further argument about Brewer. [00:07:34] Speaker 06: Well, Your Honor, if I might, two things. [00:07:36] Speaker 06: First of all, one of the interveners, Frederick Robinson, in fact, also was subject to mandatory retirement. [00:07:43] Speaker 06: So he raises the same issues that Brewer, that are raised with respect to Brewer. [00:07:48] Speaker 03: But secondly, and perhaps more... We just don't have any record on that, correct? [00:07:53] Speaker 06: The record on that is in the motion for intervention. [00:07:57] Speaker 03: Just the fact that he has since retired. [00:08:00] Speaker 06: But I believe those facts are set forth in that motion. [00:08:06] Speaker 06: But more importantly, Your Honor, [00:08:09] Speaker 06: If you look at the entirety of the court's order, the court also was wrong because it failed in the proper response to the apparent mooting of Brewer's claims by not permitting other class members to come forward and assert the claims for adjunctive release. [00:08:32] Speaker 03: But if you get what you first sought, which is intervention here for these four, [00:08:38] Speaker 03: I don't see why you would go back and re-argue or we should address or you would go back and re-argue those case management issues when you've got a different set of parties. [00:08:49] Speaker 06: Your Honor, right now the class claims have been dismissed and the class members have no vehicle with which to seek review of the order denying class certification. [00:09:04] Speaker 03: I suppose if the Court of Appeals were to agree with you on intervention. [00:09:12] Speaker 03: and to remand the issue that's the case at that point, the new interveners would be in a position to, I'm not sure it would be necessary to amend the complaint, although perhaps as a formality it would. [00:09:30] Speaker 03: The district court presumably would allow that because we'll have already said you're supposed to be admitted. [00:09:39] Speaker 03: motion for class certification presenting a different set of reasons. [00:09:45] Speaker 06: Well, Your Honor, it takes me the only way we could do that is if this court in fact does grant intervention in remands to the district court. [00:09:54] Speaker 03: Yes, yes, right. [00:09:54] Speaker 03: If we do that, then why should we do any more? [00:09:57] Speaker 03: Well, because I think, because I think... So you're not saying, well, because one of them is retired. [00:10:01] Speaker 03: Okay, but three of them are not. [00:10:04] Speaker 06: Well, Your Honor, I believe that the errors in the court's decision below would remain unless this court reviewed them and indicated that the basis for the holdings were incorrect. [00:10:25] Speaker 03: So therefore, the court would say what? [00:10:30] Speaker 03: say what in response to the renewed motion for certification filed by the four new parties? [00:10:39] Speaker 05: Well, where are the class represent, where's the class representation question coming in? [00:10:46] Speaker 05: I'm sorry, Your Honor. [00:10:46] Speaker 05: Where is the class representation question going to come in? [00:10:51] Speaker 05: On remand, Your Honor, or here? [00:10:53] Speaker 05: Well, I'm trying to figure out what you mean to say. [00:10:55] Speaker 05: So if we were to grant intervention, you still don't have class representatives. [00:11:00] Speaker 05: The district court refused to allow a change of class representatives. [00:11:04] Speaker 05: The person who was is gone, so he's not there. [00:11:08] Speaker 05: So how do you cure that? [00:11:10] Speaker 05: You've got to have class representatives. [00:11:12] Speaker 06: Well, I agree, Your Honor, and one of the three primary arguments we make is that the district court erred in its response to the apparent mootness of Mr. Brewer by not permitting other class members to come forward who had... But the district court's reason for that, as I recall, it was a timeliness? [00:11:32] Speaker 05: Well... The district court's reasons. [00:11:34] Speaker 06: The district courts, we filed the motion for class certification and the motion to amend to substitute additional plaintiffs for purposes of injunctive relief simultaneously. [00:11:46] Speaker 06: The district court split them. [00:11:48] Speaker 06: It stayed the class motion for nine months while it considered the motion to amend. [00:11:54] Speaker 06: In considering the motion to amend, the court ruled that [00:11:59] Speaker 06: The court was wrong in two respects. [00:12:01] Speaker 06: One, it ruled that Brewer was not diligent in seeking to amend. [00:12:08] Speaker 06: In doing that, the court, by splitting it, the court treated Brewer as having been, in fact, his claims being moot. [00:12:18] Speaker 06: Before it ever decided issues raised in the class certification motion, they weren't moot. [00:12:25] Speaker 06: So we made arguments. [00:12:26] Speaker 03: That problem is cured if intervention occurs. [00:12:30] Speaker 06: I don't disagree, Your Honor. [00:12:33] Speaker 03: I don't disagree. [00:12:37] Speaker 05: I'm trying to understand what it is you see going back procedurally. [00:12:41] Speaker 05: So say we were to grant intervention. [00:12:44] Speaker 06: Yes. [00:12:45] Speaker 05: How does that cure the problem of the district court's refusal to allow a change in class representatives? [00:12:52] Speaker 06: believe your honor as I was saying that one of the errors the court made needs to be at least one of the errors needs to be reversed and that is the the refusal to permit other class members to come forward to preserve the claim the class claim for injunctive relief I think that is not that is not we don't do that [00:13:21] Speaker 03: their motion for a class certification, correct? [00:13:28] Speaker 06: I believe if this court instructs the district court... Including a request to serve as representatives? [00:13:37] Speaker 05: Yes. [00:13:38] Speaker 05: Okay, so then the district court would, in your view, have to then view that issue anew in light of our saying these folks have to be allowed to intervene. [00:13:50] Speaker 06: I believe, I think the answer is, I understand. [00:13:56] Speaker 05: Because I don't know how you hear on this interlocutory appeal on the question of the district court's refusal to allow substitution. [00:14:11] Speaker 06: That was one of the grounds on which the court may dismiss all the claims. [00:14:17] Speaker 05: No, I understand, but you could bring everything to the Court of Appeals on this interlocutory appeal, which is one of their arguments. [00:14:25] Speaker 05: There are certain limited questions with respect to class certification. [00:14:28] Speaker 05: That's all. [00:14:29] Speaker 06: Well, I'm sorry. [00:14:30] Speaker 06: Let me say this. [00:14:32] Speaker 06: I think the issues that have been raised, that were raised in the petition, [00:14:37] Speaker 06: go to the class certification decision, including what's the appropriate response when you're looking at certification to the apparent mooting of one of the plaintiff's claims, which is what we were just talking about. [00:14:50] Speaker 06: All of the issues [00:14:52] Speaker 06: with respect to the denial of class certification are raised in the petition. [00:14:58] Speaker 06: The parties agree, in the papers, the parties agree that the case, the question of the propriety of the denial of class certification has been fully briefed. [00:15:09] Speaker 06: and now is being argued or is capable of being argued, we contend that it does not make sense to send the parties back down all over again to achieve the formality of end-of-case review when in fact it is end-of-case review now because the case is caught up to the petition. [00:15:31] Speaker 03: In further answer, I think- By the way, I think the government initially maintains that this is not, that what you're arguing is not properly raised on Rule 23F because it's a 16B decision by the district court. [00:15:45] Speaker 06: Well, I understand. [00:15:47] Speaker 03: Let me address that. [00:15:47] Speaker 03: So the agreement is only once you get over that? [00:15:50] Speaker 06: Well, they would prefer to say, well, let me say this. [00:15:55] Speaker 06: They are wrong in that contention. [00:15:57] Speaker 06: Because after the rule 16, after the decision on the motion to amend, the judge's 16B ruling, we then continued briefing the class certification motion. [00:16:10] Speaker 06: And again, we said to the court, [00:16:13] Speaker 06: We argued that Brewer still had standing for injunctive relief, but we said even if you find that he doesn't, [00:16:20] Speaker 06: You still should allow absent class members – if you're going to find now that Brewer – Brewer's claims for injunctive relief are moot – you now have to allow absent class members to come forward to assert those claims to preserve the class claims for injunctive relief. [00:16:38] Speaker 03: And she – And if we remand, that's where you are. [00:16:41] Speaker 03: I'm sorry? [00:16:41] Speaker 03: If we remand, that's exactly where you pick up. [00:16:44] Speaker 06: If I believe the court would have to give some instructions that the court should consider the interveners and allow them to submit a new motion for classification. [00:16:55] Speaker 03: Well, the whole reason for if we were to say the interveners are here as a right or discretionary [00:17:04] Speaker 03: The whole purpose would be in order to enable them to do that, to present that issue. [00:17:11] Speaker 03: So a remand for proceedings consistent with the opinion of this court would necessarily mean that the district court would entertain your next motion for class certification. [00:17:26] Speaker 06: If that were the relief granted by the court, I believe that would be fine. [00:17:30] Speaker 06: That would be adequate. [00:17:31] Speaker 06: That would give the intervenors then the opportunity to pursue a motion for a classroom. [00:17:36] Speaker 03: It would be very peculiar for a district court not to hear the new intervenors motion for class certification on the ground that it decided that with respect to somebody who's no longer here for reasons that no longer apply. [00:17:51] Speaker 06: Forgive me, Your Honor. [00:17:52] Speaker 06: This case has been pending since 2008. [00:17:55] Speaker 03: We have been through a gauntlet of... That may be the government's charge, but more to the government than the district court. [00:18:03] Speaker 06: But all I'm, regardless of who, I'm not, it's not a matter of who's at fault. [00:18:08] Speaker 06: The point is, after eight years of litigation, we still have not had the full and fair opportunity to have this class certified, or at least have the class fully considered for class certification under Rule 20. [00:18:28] Speaker 06: Well, they settled their claims after the class certification denied. [00:18:42] Speaker 06: What they were faced with at that point was either going through a trial of their individual claims [00:18:49] Speaker 06: or only so they could then appeal the denial of class certification up here. [00:18:56] Speaker 06: And at that point, the government expressed a great interest in settling their individual claims, and they were settled. [00:19:04] Speaker 06: But the point is the interveners now, as they should have been afforded the opportunity below, have stepped forward to say, we have standing, unquestionably, [00:19:17] Speaker 06: And we are here to come forward to preserve the class claims and prosecute the case through certification and hopefully to a liability trial. [00:19:29] Speaker 05: We would be reversing the district court's decision denying class representative status. [00:19:39] Speaker 06: denying class members the opportunity to enter the case, to pursue class certification. [00:19:44] Speaker 03: I don't think so. [00:19:44] Speaker 03: I don't think so. [00:19:45] Speaker 03: I don't think we would be doing that because that motion, that denial was a denial for Mr. Brewer to be class representative. [00:19:54] Speaker 03: No, wasn't it? [00:19:55] Speaker 03: You only file a new motion. [00:19:57] Speaker 05: Wasn't denial, let's make sure we're all in the same room. [00:20:00] Speaker 05: Wasn't there a denial of a request for representative status by other persons other than Brewer? [00:20:07] Speaker 06: In addition to the motion to amend, which I've discussed already, at the time then that the court turned to class certification, we requested that the court allow absent class members to come forward to show they had standing for injunctive relief to preserve the class claims. [00:20:27] Speaker 06: The district court refused to consider that, didn't consider it at all, and simply denied all the class claims. [00:20:35] Speaker 03: on the grounds of lack of diligence. [00:20:38] Speaker 06: No. [00:20:38] Speaker 03: No? [00:20:39] Speaker 06: At that point, the court said nothing about it. [00:20:42] Speaker 05: You said the diligence was with respect to brewers. [00:20:44] Speaker 06: That was with respect to, well, with respect to the motion to amend that was filed simultaneously with the motion to certify, but it was treated differently. [00:20:56] Speaker 03: The district court denied the motion to amend, which would have substituted a new plaintiff's, right? [00:21:07] Speaker 03: We don't have to reverse the district court's denial of someone else's joining the complaint. [00:21:13] Speaker 06: So long as the district court is instructed that it is to consider a class certification motion filed by the interveners, I agree. [00:21:24] Speaker 06: The court need not say that. [00:21:26] Speaker 03: So none of the merits of a certification decision would then be resolved here. [00:21:31] Speaker 03: There would be perhaps new disputes [00:21:36] Speaker 03: which would be resolved later, but we don't know what they are. [00:21:40] Speaker 06: I suppose that's great. [00:21:42] Speaker 06: At least one of them might be about the former employee. [00:21:46] Speaker 06: All right. [00:21:46] Speaker 06: I'm sorry I've gone over my time. [00:21:48] Speaker 00: Thank you, Mr. Henderson. [00:22:00] Speaker 02: Thank you, Your Honor. [00:22:01] Speaker 02: May it please the Court, Joshua Salzman on behalf of the Attorney General. [00:22:04] Speaker 02: Even before Herman Brewer recently settled his individual claims, this case did not satisfy this court's established standards under Larazepam for discretionary interlocutory review under Rule 23-F. [00:22:18] Speaker 02: But Brewer's settlement only amplifies and confirms that review at this juncture should be denied, and that's true for a couple of reasons. [00:22:29] Speaker 03: on the motion to intervene. [00:22:30] Speaker 02: I think the intervention motion should be denied, Your Honor. [00:22:33] Speaker 02: I want to target something. [00:22:35] Speaker 02: I want to be very clear about something, which is I don't think it's true that granting intervention here would be akin to allowing these interveners to serve as class representatives below. [00:22:46] Speaker 02: I think there's a distinction. [00:22:48] Speaker 03: Of course not. [00:22:48] Speaker 03: They would have to make a motion to serve as class representatives. [00:22:52] Speaker 02: Right, so intervention for purposes of continuing to prosecute this appeal or intervention, as the Supreme Court described it in the McDonald case, by absent class members in order to take an appeal from a denial of class certification is very different from a determination that these individuals would be allowed to actually serve as class representatives. [00:23:14] Speaker 02: And I think that's very significant because here we're operating under the constraints of the limited jurisdiction conferred by 23 app. [00:23:23] Speaker 03: I don't get this. [00:23:25] Speaker 03: Not with respect to intervention. [00:23:27] Speaker 03: With respect to intervention, we're just dealing with case law. [00:23:36] Speaker 03: of the case. [00:23:38] Speaker 02: Right, there's case law that allows absent class members to come in under certain circumstances to maintain an appeal from the denial of class certification. [00:23:48] Speaker 02: But we're dealing with a very different circumstance here, Your Honor, because the district court made a specific ruling against the backdrop of Rule 16B that the class here had not, or that the plaintiffs had not been diligent in seeking leave to amend, that they waited nine months from October of 2013 [00:24:06] Speaker 02: until July of 2014, they knew of the infirmities of their only class representative and did nothing. [00:24:12] Speaker 02: And that as a result of that lack of diligence, there was going to be prejudice to the court's management of its own calendar. [00:24:18] Speaker 03: Wait, when you say the presence would be interveners, were aware of it, did nothing? [00:24:23] Speaker 03: What record is there to show they were aware of it? [00:24:26] Speaker 02: But you're talking about the intervenors, I'm sorry, I'm talking about the plaintiffs here. [00:24:31] Speaker 02: I'm talking about the motion that was filed by the plaintiff class. [00:24:35] Speaker 02: So that was principally Brewer. [00:24:37] Speaker 02: Brewer's gone. [00:24:38] Speaker 04: Brewer's gone. [00:24:39] Speaker 03: I agree with that, Your Honor. [00:24:51] Speaker 03: a class member can intervene to preserve the case when the would-be representative is dropped out. [00:24:59] Speaker 02: Well, I think when there's an appeal from final judgment here, which is the proper course and under Larasaham is still the preferred course, these interveners have filed a motion in the district court as well. [00:25:10] Speaker 02: And once there's final judgment in the district court, we oppose the intervention motion, but only on prematurity grounds. [00:25:18] Speaker 02: I think it is we would concede that under McDonald, these absent class members probably will be able to intervene and take an appeal from final judgment. [00:25:27] Speaker 02: Now, my opposing counsel has taken the view that this is effectively an appeal from final judgment. [00:25:34] Speaker 02: I think that that's a mistake. [00:25:36] Speaker 02: And the reason for that is, right now, all that is before the court is what's allowed under Rule 23F. [00:25:43] Speaker 02: which is a review of only the class certification decision. [00:25:47] Speaker 02: But on an appeal from final judgment, this court can hear any of the other issues that any of the other parties, including parties who are not before the court today, might wish to appeal. [00:25:56] Speaker 02: For example, there was a plaintiff in district court named Fayette Reed. [00:26:00] Speaker 02: She had individual claims and class claims and had summary judgment granted against her. [00:26:04] Speaker 02: Once there's a final judgment, she might wish to notice an appeal as well. [00:26:08] Speaker 02: There are many other issues that [00:26:10] Speaker 02: came up over seven years of litigation comprising many other parties which potentially might be wrapped into any appeal. [00:26:17] Speaker 02: Now this court in Larazepam recognized that there are certain circumstances where 23F interlocutory review is appropriate, but the concerns that animate Larazepam simply aren't present here. [00:26:29] Speaker 02: The parties aren't going to be tracked [00:26:30] Speaker 02: in district court litigating low-value claims, they're not going to expend a great deal of resources, the district court will be able to enter final judgment shortly, and once that happens, this case can return to the court with all the issues before it. [00:26:42] Speaker 05: No, what I was apparently going to give is three circumstances where, I mean, and one of which is unsettled questions of law. [00:26:48] Speaker 05: There's certainly unsettled questions of law in this case. [00:26:51] Speaker 05: This is a bizarre circumstance. [00:26:54] Speaker 05: And it comes close to death now in terms of class certification, because the district court has denied class certification, in part because Brewer's gone, it moots it out, and the district court refused to consider the possibility of others substituting for Brewer. [00:27:12] Speaker 05: It seems to me, well, Raza Pan, if you read, depends on how you read it, would say you certainly can take review on the situation, and as we've been talking about, say yes, these are appropriate [00:27:22] Speaker 05: persons who should be able to present to the district court for representation and certification. [00:27:29] Speaker 02: So I'd like to begin with the second Lorazepam category, because it's not just an important question of law. [00:27:35] Speaker 02: It has to be an important question of law related to class actions. [00:27:39] Speaker 02: And the second criteria is that we'll evade end of case review. [00:27:44] Speaker 02: In both Inray Veneman and Inray Johnson, this court refused to consider important questions of class action law because the petitioner there had failed to show that the issue would evade end of case review. [00:27:56] Speaker 02: Here, where final judgment can issue shortly in the district court. [00:28:00] Speaker 02: In both of those cases, it was sending the case back to the district court for further proceedings that could stretch on for years. [00:28:07] Speaker 02: Here, the district court can enter final judgment in short order, so I don't see how they can show the data into case review. [00:28:13] Speaker 05: That's kind of a bizarre notion. [00:28:15] Speaker 05: I have to go back and look at that case. [00:28:19] Speaker 05: can be decided pursuant to 23f or end of case review, either one. [00:28:25] Speaker 05: So to say that this is something that admits of end of case review seems to me to say nothing with respect to what is cognizable under 23f. [00:28:34] Speaker 05: The case law is clear. [00:28:36] Speaker 05: You don't have to bring [00:28:39] Speaker 05: the certification question under 23F. [00:28:41] Speaker 05: You don't lose it. [00:28:42] Speaker 05: It's not waived. [00:28:44] Speaker 05: So it means either place. [00:28:45] Speaker 05: So for you to argue that, well, they can do this after the fact is to say nothing about what they can do under 23F. [00:28:52] Speaker 02: I don't believe that's consistent, Your Honor, with either in Ray Benjamin or in Ray Johnson. [00:28:56] Speaker 05: Well, the case law is clear on that. [00:28:58] Speaker 05: There is no doubt you can do one. [00:29:00] Speaker 05: You don't waive the certification question merely because you don't bring it under 23F. [00:29:05] Speaker 02: That's absolutely right, Your Honor. [00:29:10] Speaker 05: So it doesn't make sense to say, you should dismiss this 23F because you can bring it after the fact. [00:29:17] Speaker 05: Of course they can bring it after the fact that they prefer to do it that way. [00:29:20] Speaker 02: No, this court has twice said that when there's a new, the court twice has identified what it turned to be and considered to be fundamental issues of class action law that were unsettled and still denied the petitions because it said, [00:29:33] Speaker 02: there's a separate criteria that needs to evade end of case review. [00:29:37] Speaker 05: No, I think what they were saying, I think what they were saying, I'll go back and look at them again. [00:29:41] Speaker 05: I think what they were saying is this really is not about class certification. [00:29:46] Speaker 05: Whereas this, it seems to me, really is about class certification. [00:29:51] Speaker 02: Respectfully, Your Honor, I'd refer you to the – it's the final or the second-to-last paragraph of Inray-Johnson, and Inray's admin is on the point as well. [00:29:58] Speaker 05: Well, I hate to say that we've written something that's illogical, but it doesn't seem terribly logical, because I would have to buy your argument. [00:30:09] Speaker 05: We would dismiss it 23F. [00:30:11] Speaker 05: because the questions being raised here can be raised at the conclusion of the case. [00:30:16] Speaker 05: That makes no sense, because we already knew that, but you still can file a 23f. [00:30:21] Speaker 02: But 23F serves a perfect interlocutory review, as Inrei Larazepam recognizes, is generally disfavored. [00:30:29] Speaker 02: And notwithstanding 23F, it's still disfavored. [00:30:32] Speaker 02: So there's a subset of cases of special circumstances identified in Larazepam where the court has said, on balance, it's better to depart from usual procedure and to allow for interlocutory review. [00:30:45] Speaker 04: Yeah, to get the case moving. [00:30:46] Speaker 04: No. [00:30:47] Speaker 04: Yes, that's why 23F was adopted. [00:30:50] Speaker 02: If you look at In re District of Columbia, for example, your honor, there the court had great doubts or not. [00:30:56] Speaker 02: It didn't say great doubts, but it had doubts about the class certification decision below. [00:31:00] Speaker 02: And it still said getting it moving and preventing the expenditure of resources isn't enough because there wasn't a showing of manifest error. [00:31:07] Speaker 02: So this court has actually been quite limited. [00:31:11] Speaker 05: That's like on certified question review. [00:31:15] Speaker 05: Sometimes we say, I don't know, beats us, keep going, and then we'll look at it later. [00:31:19] Speaker 05: So if you're simply citing cases where we've said, beats us, just keep going, we'll deal with it later, that doesn't prove anything. [00:31:27] Speaker 05: That's not helpful. [00:31:29] Speaker 02: I think taken as a totality, this court's decisions. [00:31:32] Speaker 04: I love the totality notion, but I can't think of anything else. [00:31:36] Speaker 04: Let's do totality. [00:31:37] Speaker 02: But individually and taken together, Your Honor, they show that this court has reserved its 23F jurisdiction for a very special subset of cases. [00:31:47] Speaker 05: Yes, cases in which someone has the right to take an interlocutory appeal to challenge a denial of class certification. [00:31:54] Speaker 05: That's the law. [00:31:56] Speaker 02: The law is that this court then has discretion and that that discretion is going to be guided by the factors laid out in the horizon. [00:32:05] Speaker 02: Okay. [00:32:06] Speaker 02: Are there further questions from the panel? [00:32:07] Speaker 00: I see that I'm out of time. [00:32:12] Speaker 00: No. [00:32:12] Speaker 00: No. [00:32:14] Speaker 06: All right. [00:32:15] Speaker 06: Thank you, Mr. Selsman. [00:32:17] Speaker 00: I don't think you had any time left, but we'll give you two minutes. [00:32:25] Speaker 06: Let me just try to make two points quickly. [00:32:27] Speaker 06: First, the government's urging the absurd result that having fully briefed the class certification issues before this court, you should say no, that it send the parties back to the district court in the hope that the district court grants the motion to intervene for purposes of appeal, which it has not done yet. [00:32:47] Speaker 06: The appeal is due in a week, and the court knows that and has not yet acted on the motion to intervene. [00:32:54] Speaker 06: What do you mean the appeal is due? [00:32:56] Speaker 06: There's a motion to intervene in the district court for purposes of appeal. [00:32:59] Speaker 06: The government's suggesting that we should do this all over again and come back in a year and argue it because of the end of case review. [00:33:08] Speaker 06: Effectively, we are at an end of case review. [00:33:10] Speaker 06: That's my point. [00:33:12] Speaker 06: Secondly, with regard to the [00:33:14] Speaker 06: a motion to the denial of the motion to amend Rule 16 does not substitute for Rule 23 standards. [00:33:23] Speaker 06: Number one and number two, not only was Brewer not a lack of diligence, he filed a motion to add new people within three months of his [00:33:34] Speaker 06: of his mandatory retirement. [00:33:37] Speaker 06: But there was absolutely no prejudice whatsoever. [00:33:40] Speaker 06: The proposed interveners below brought only the exact same claims that were previously there. [00:33:47] Speaker 06: And there was built into the briefing schedule in the district court the opportunity to take discovery from the new class members, and the government forewent that opportunity. [00:33:58] Speaker 06: There was absolutely no prejudice at all. [00:34:00] Speaker 06: So the court was wrong on that as well. [00:34:03] Speaker 06: But we plead with this court, please, to consider the merits, permit the parties, the interveners to intervene so that this case can be addressed, both in this court and in the district court. [00:34:18] Speaker 06: Thank you. [00:34:19] Speaker 00: All right. [00:34:19] Speaker 00: Thank you, Mr. Henderson. [00:34:20] Speaker 00: The case will be submitted.