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Case number 14-7189, Ayanna Blue, appellant versus District Columbia Public Schools at L. Ms.

[00:00:09] Speaker 00:
Bachman for the appellant, Mr. Shiffley for the appellees.

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Ms.

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Bellman, good morning.

[00:00:41] Speaker 03:
May it please the court, Natalie Bachman on behalf of Appellant Ayanna Blue.

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Your Honor, there are three issues before the court this morning.

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First, whether Ms.

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Blue adequately pleaded violation of her substantive right to bodily integrity against the district from municipal custom policy or practice under 42 USC 1983.

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Whether Ms.

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Blue adequately pled a Title IX claim.

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and whether Ms.

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Blue adequately gave statutory notice of our state law claims in accordance with D.C.

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Code 12309.

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With respect to the municipal liability claim, one of Ms.

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Blue's theories was that the district, and she pled that the district had a custom of inadequately investigating the backgrounds of its teachers before hiring them.

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She pled a number of facts in her complaint in support of this policy.

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She pled that Mr. Weissmiller was fired from two Washington area school districts for previously sexually abusing students

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And that despite being fired for these incidents, the district hired him and the district assigned him to teach very vulnerable students who've been diagnosed with emotional disturbance disability at the Transition Academy at Chad.

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The district court dismissed Ms.

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Blue's claims under the policy of failure to investigate Mr. Weissmiller's background, finding that she did not allege which specific municipal policymaker made the decision to hire.

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Did not allege that the complaint failed to allege that the decision maker was a final policymaker.

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Set aside the question of identifying

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the specific person.

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Does the complaint allege anywhere that whoever it was who made the decision was, in fact, a final policymaker?

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I don't believe it does, Your Honor.

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Right, and doesn't it fail for that reason?

[00:02:47] Speaker 03:
It doesn't because it alleges a custom policy or a practice.

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But there is no policy other than a decision of a final policymaker in this case.

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But under the Supreme Court's precedent in Penbrower and City of Kenton versus Harris, a single decision by a municipal policymaker can constitute a policy.

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Right, but the decision has to be by a final policymaker.

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It does.

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And you don't allege that.

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You just agreed with me you didn't.

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I mean, she alleges a policy.

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And under the Supreme Court's precedent, a policy includes this final municipal decision, or excuse me, a decision by a final municipal policymaker.

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And so that's within the realm of what she did allege in alleging a policy.

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It's one ground on which to allege a policy.

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And additionally, she alleged that the district was liable under 42 U.S.

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31983 based on a policy of ratification that essentially the district conducted an inadequate investigation of Mr. Weissmuller's misconduct and didn't find that he did anything wrong at the end of this and did not dismiss him for cause, did not discipline him

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really didn't do anything at all, and that that suggests a district custom.

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But the district court said that can't, the district didn't know about this relationship until after it was over, so.

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Well, we disagree with that.

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I mean, there are allegations in the complaint that say that various teachers, that various school personnel.

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Right, but what about the district itself?

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The district didn't know anything about this until after the relationship ended, right?

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That's not what we allege.

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We allege that all of these people knew about this relationship as it was occurring.

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And whether, especially with respect to the Title IX claim, whether these are appropriate officials that could alert the district or could bind the district to what had been going on previously is a question of fact.

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But it's not certain that just because the investigative report itself was not published until after Mr. Weissmiller had been let go, that no one knew about his conduct.

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previous to that.

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All of the interviews, all the people that were interviewed said yes, we did know in fact that this conduct had been going on for months.

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Some of the allegations in the complaint referenced specific dates where the people interviewed said that they knew what was going on.

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Some of those dates are date back months before the report was actually published.

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with respect to uh... misbeliefs She did allege that.

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She said that she relied on Mr. Weissmuller for emotional support.

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I mean in her state law claim she brought a breach of fiduciary duty claim where she makes some of those allegations.

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It is a state law claim but those allegations are incorporated

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in all of her causes of action.

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But she does allege that she relied on him, he was someone she trusted, and that he took advantage of that by engaging in this relationship.

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With respect to her Title IX claim, the district court found that she hadn't pleaded a valid claim because she didn't allege that an appropriate official had knowledge of the relationship and didn't allege actual knowledge.

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Again, we disagree because she alleged numerous officials, numerous people within the school that knew of this relationship as it was occurring.

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We don't know if other people were interviewed, whether their statements were included in the reports that was eventually circulated to the district itself.

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We believe it's an issue of fact as to who is an appropriate person with the authority to take remedial action in a situation such as this.

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And because this complaint was dismissed after a motion to dismiss, Ms.

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Blu has been able to take no discovery, whether it be on who's an appropriate official, on what particular district policies or practices may be in place with respect to hiring, or the identity of a final municipal policymaker that made any of the decisions at issue here with respect to the 1983 claim.

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In terms of statutory notice, we have a couple of arguments why we believe the district was provided with notice here.

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First is that the purposes of the notice statute have been fully satisfied.

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This detailed investigative report was done, 51 pages long.

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It was done within six months of when Ms.

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Blue alleged that her injuries occurred.

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What was?

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The investigative report that the district office of school security did.

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Our argument is that that gave the district actual notice of the claims that could be brought against it.

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It enabled it to do a full investigation, which it did do.

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Therefore, the purposes of the notice statute have been fully satisfied.

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Additionally, we argue that because the investigative report was done by the Office of School Security, which is staffed by Metropolitan Police Department officers in part, that it could have satisfied the provision of the notice statute that says a police report in the regular course of duty.

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It satisfies a statutory notice in the absence of a letter to the mayor.

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We know that the person who authored the report is an MPD police officer, or at least was at one time.

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The report itself is arguably a police report, following within that exception to the statute.

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And third, on the notice issue, we've argued that Ms.

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Blue should be able to conduct discovery on whether a police report actually exists in this case.

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Did you ask the district court for discovery on those issues?

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We did not.

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The bottom line here.

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What do we do with the DC?

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I mean, the DC Court of Appeals has said this statute's to be strictly complied with.

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Indeed, it's supposed to be, quote, construed narrowly against plaintiffs.

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I mean, this is a pretty strict statute.

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There's only one exception that I found.

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This is a report in writing, you know,

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It's a pretty strict standard, isn't it?

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It is a strict standard, but the courts have also said in many cases, what is the purpose of the statute?

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The purpose of the statute is so that the district is able to investigate claims before a suit can be brought.

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Were you counseled to her during this six-month period?

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Just curious.

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No, we were not.

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Was she represented?

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She was not.

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She was not represented during that six-month period?

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She was not, correct.

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Does that make a difference?

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It doesn't seem to.

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That's right, it doesn't, doesn't.

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Under the case law, unfortunately, Your Honor is correct.

[00:10:01] Speaker 03:
It doesn't.

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I mean, the argument from our perspective is that because the investigative report was done and it was done in time, that the district had every opportunity to find out every fact that it wanted to with respect to these claims.

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And I would note that this case

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In terms of the detail, the investigative report provided much more information than the things people typically try to characterize as actual notice under some of the other D.C.

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cases.

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Which of your three arguments, 1983 Title IX and D.C.

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Notice, D.C.

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Claims, which do you think is your strongest argument?

[00:10:40] Speaker 03:
the 1983 claim based on failure to investigate Mr. Weissmiller's background before hiring him.

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I don't even think the district disputes that a teacher with a history of sexually abusing.

[00:10:52] Speaker 04:
I understand that, but again, what's your response to the, just tell me once more so I'm sure I understand.

[00:10:56] Speaker 04:
Sure.

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Your response to the district court's conclusion that the complaint fails to allege that the decision to hire was a, the complaint fails to allege that that decision was made by a person who's a final policymaker.

[00:11:10] Speaker 03:
Well, the complaint alleges that the district had a custom policy or practice, inadequately investigated.

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Correct.

[00:11:17] Speaker 04:
But you didn't agree when we asked you that before.

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You agreed that you attempt to show that through the fact that even if there's no written policy or custom, a decision by a final policymaker can become a policy, correct?

[00:11:31] Speaker 03:
Correct.

[00:11:31] Speaker 04:
I mean, if you look at the Supreme Court... But don't you have to allege that?

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My only question is a question of pleading.

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You agreed with me that you did not allege that in the complaint.

[00:11:41] Speaker 03:
But we alleged a policy, and under the Supreme Court precedent, a policy includes a final decision by- Okay, so your argument is that sufficient?

[00:11:50] Speaker 03:
It is sufficient, under Pembroke and City of Canton v. Harris, which found that a policy can include a final decision by a policymaker, even a single incident in certain circumstances.

[00:12:05] Speaker 02:
You're saying at the motion to dismiss stage, that's sufficient.

[00:12:08] Speaker 02:
Pardon me?

[00:12:11] Speaker 02:
Yes, exactly, Your Honor.

[00:12:13] Speaker 03:
It might be different, but we've had no opportunity to discover any facts on who made the decision to hire Mr. Weissmiller at this point.

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And in fact, had we alleged that it were a final municipal policymaker, I mean, that would be

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probably a legal conclusion at this point.

[00:12:32] Speaker 03:
It doesn't seem that it would have made any difference whether we alleged it or we didn't allege it if it's a fact that we could not obtain until discovery had been conducted.

[00:12:42] Speaker 04:
All right.

[00:12:42] Speaker 04:
Thank you.

[00:12:43] Speaker 04:
Oh, I'm sorry.

[00:12:44] Speaker 04:
Hold on a second.

[00:12:48] Speaker 04:
Never mind.

[00:12:49] Speaker 04:
I forget.

[00:12:50] Speaker 04:
Thank you.

[00:12:51] Speaker 05:
Mr. Shively.

[00:13:01] Speaker 01:
Good morning, and may it please the court, Carl Schifferle for the District of Columbia.

[00:13:05] Speaker 01:
I wanted to start off with the discussion of a municipal policy or custom, which was not alleged in this particular case sufficiently adequately for purposes of Rule 12b6.

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We have the fact that it was not alleged that a policymaker, a district policymaker, made the hiring decision in this case.

[00:13:24] Speaker 04:
But why isn't enough?

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The complaint does allege that there's a policy, and the courts have said that a policy can be.

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can come from the individual acts of a final policymaker.

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So why isn't that enough?

[00:13:38] Speaker 04:
Well, because what we have here is just the single incident of hiring of Mr. Weisman, and it was not alleged that a final... But you agree if... suppose the person who made that decision was a final policymaker.

[00:13:52] Speaker 04:
You would agree that would be sufficient, wouldn't it?

[00:13:55] Speaker 01:
It would perhaps be.

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I'm not sure that it would necessarily be so, but yes, it could be, but we don't have that here in this case.

[00:14:03] Speaker 04:
Well, what's missing?

[00:14:04] Speaker 01:
The allegation that a final policymaker made the decision, a conclusory allegation that there's just a policy out there.

[00:14:10] Speaker 04:
Is there a case that says that that's not sufficient?

[00:14:14] Speaker 01:
While we did cite the Jones versus Warren case, which this court affirmed the dismissal on a 12b6 for inadequately alleging that municipal policy are custom, I think since it's an essential element that if you are going to rely on a single incident, that it be a decision by a final policymaker.

[00:14:37] Speaker 01:
And it's not alleged the final policymaker made the decision.

[00:14:40] Speaker 02:
So you're saying that we would view the complaint differently if they added the words, and this was done pursuant to a decision by a policymaker?

[00:14:51] Speaker 01:
I mean, that would be a necessary element, yes, because simply a conclusory allegation of a policy.

[00:14:58] Speaker 02:
No, but we have a motion to dismiss stage.

[00:15:01] Speaker 02:
And if the courts have said you've complained of policy, there is something there.

[00:15:09] Speaker 02:
In fact, that seems very strange to me.

[00:15:11] Speaker 02:
She's alleging trust, emotional disability, a position of trust, a decision which on its face looks at this question of what she's claiming as a policy.

[00:15:24] Speaker 02:
Normally, there's no discovery yet.

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It's not some absurd claim.

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It's a very vile claim on its face.

[00:15:33] Speaker 02:
And you take it to summary judgment.

[00:15:37] Speaker 01:
Well, I mean, first of all, it's simply a conclusory allegation and a legal conclusion.

[00:15:42] Speaker 02:
But she originally has the name of the policymaker in the complaint?

[00:15:45] Speaker 02:
That's not what the cases say.

[00:15:47] Speaker 01:
Well, we would say she would have to identify the individual by position or name, too, because it's a legal question.

[00:15:55] Speaker 02:
Where does the case law say that, that you have to name the individual policymaker to be the motion to dismiss?

[00:16:02] Speaker 01:
Well, because it is a legal question whether an individual has final policy-making authority, some fact would have to be alleged who that individual is so that that legal issue... Where does the case law say that on a motion to dismiss?

[00:16:18] Speaker 02:
I'm just not seeing it.

[00:16:19] Speaker 01:
Well, I mean, we did cite the Jones v. Horn case.

[00:16:23] Speaker 01:
I would also point out, too, that we're not even at that stage, Your Honor.

[00:16:27] Speaker 01:
There's simply no allegation that a final policymaker made the decision in this case.

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That's a very small burden to overcome for the plaintiff to allege, and it was not alleged here.

[00:16:37] Speaker 02:
Maybe I'm dense, but it seems to me, if I assert in a complaint that this happened pursuant to a policy,

[00:16:42] Speaker 02:
That suggests that a policymaker made the decision, a policy, as opposed to there was a single incident that happened to me and I'm complaining about it.

[00:16:52] Speaker 01:
I mean, I would submit it's simply to conclude, sorry, it's not an allegation of fact that would be entitled to the presumption of truth on the motion.

[00:16:59] Speaker 02:
The fact is that this happened.

[00:17:00] Speaker 02:
The fact is, here's what happens, and the fight might be over whether or not there is a policy, that's the way I read the cases, and that comes later.

[00:17:10] Speaker 01:
Right, but in order – I mean, even assuming there were an underlying constitutional violation, and that's been adequately pled, that does not suffice to establish for purposes on a motion to dismiss a claim against the municipality, because it is a rigorous standard of liability for municipal liability.

[00:17:27] Speaker 01:
The Supreme Court has repeatedly made that clear in order to avoid

[00:17:31] Speaker 01:
Minnell liability from collapsing into Respondia's superior liability.

[00:17:36] Speaker 01:
In light of that rigorous standard, we would submit that at each stage of the proceeding, including on the 12b6, that that rigorous standard be taken into account and hear review in the allegations.

[00:17:46] Speaker 04:
What's your best argument that there's no underlying constitutional violation here?

[00:17:53] Speaker 01:
Well, we did argue that there would be no underlying substantive due process violation because Ms.

[00:18:00] Speaker 01:
Blue admittedly was an adult at the time and it was not alleged in the complaint that the relationship was unwelcome.

[00:18:08] Speaker 01:
But I don't think the court needs to get to there.

[00:18:10] Speaker 01:
I think that the district court did properly dismiss it because a municipal policy was not alleged.

[00:18:16] Speaker 01:
I would point out there was no deficiency alleged in the background checks.

[00:18:20] Speaker 01:
that DC public schools conducted.

[00:18:23] Speaker 04:
Again, we simply have a... Excuse me, I wasn't going to raise it until you just said that, but isn't that kind of obvious that there are?

[00:18:31] Speaker 04:
I mean, this fellow, according to the complaint, at least in two nearby school districts, engaged in abuse of students, sexual abuse of students.

[00:18:43] Speaker 04:
Would they have come up in background checks?

[00:18:46] Speaker 01:
It is not alleged that he had any criminal background whatsoever, no conviction, no arrest.

[00:18:51] Speaker 01:
It's not alleged at all.

[00:18:53] Speaker 01:
These incidents occurred decades ago.

[00:18:56] Speaker 01:
There's no deficiency that's identified in the process of DCPS.

[00:19:02] Speaker 04:
Does the school district do background checks on people that hires?

[00:19:05] Speaker 01:
Yes, Your Honor, we pointed to the regulation that specifically requires a criminal background checks of teachers, as well as past employment checks, reference checks, that these are all required.

[00:19:16] Speaker 01:
And it's district policy that they are required.

[00:19:20] Speaker 01:
And there's no dispute here on the complaint that that's not the case.

[00:19:24] Speaker 01:
And so that's another reason why it would fail for failure to show a ledge in municipal policy or custom.

[00:19:32] Speaker 01:
Under Title IX, the analysis would be similar.

[00:19:36] Speaker 01:
We have no actual knowledge by an appropriate person that is alleged.

[00:19:42] Speaker 01:
We have the allegation that a teacher, an aide, a psychologist heard rumors or saw the two alone together, but that does not arise to actual knowledge by an appropriate person.

[00:19:55] Speaker 01:
Appropriate person, one being

[00:19:57] Speaker 01:
authorized to take corrective action in the form of firing or disciplining the employee.

[00:20:06] Speaker 01:
And it is not alleged in this case that there was such an appropriate person who had such knowledge.

[00:20:12] Speaker 01:
We also made the argument that the investigation itself shows no deliberate indifference.

[00:20:16] Speaker 01:
The district did investigate.

[00:20:19] Speaker 01:
There was no allegation of any particular deficiency in the investigation itself, the process of investigating.

[00:20:26] Speaker 01:
This would disprove any deliberate indifference by the district.

[00:20:31] Speaker 01:
There's nothing that was clearly unreasonable in the investigative response.

[00:20:35] Speaker 01:
And then as far as the common law claims, assuming that these claims are negligent hiring or supervision or some sort of common law claim, we have the 12309 bar.

[00:20:52] Speaker 01:
The plaintiff's argument that actual notice suffices or that the purpose of the statute has been satisfied because there's actual notice, that argument has been rejected by the D.C.

[00:21:03] Speaker 01:
Court of Appeals.

[00:21:05] Speaker 01:
On multiple occasions, we cited in our brief, the only permissible substitute to written notice to the mayor is a police report in the regular course of duty.

[00:21:15] Speaker 01:
Ms.

[00:21:15] Speaker 01:
Blue did not argue below that this DC Public Schools investigative report was actually a police report, and so that argument was forfeited, and she didn't ask for discovery on whether to inquire even whether this was a police report that might satisfy the statute.

[00:21:32] Speaker 01:
So again, that argument has been forfeited as well, and the report itself

[00:21:38] Speaker 01:
for the reasons we stated in our brief clearly identifies itself as a DC public school report, not as a police report in any event.

[00:21:45] Speaker 01:
So the common law claims would be barred under DC Code 12309.

[00:21:49] Speaker 02:
Let me make sure I'm understanding your position.

[00:21:52] Speaker 02:
The way I'm reading this with respect to the 1983 claim, the plaintiff says, I'm the person with emotional disability,

[00:22:05] Speaker 02:
in an institution charged with caring for me.

[00:22:13] Speaker 02:
The guy they hired was in a position of trust.

[00:22:17] Speaker 02:
And I acted pursuant to that trust.

[00:22:22] Speaker 02:
And he engaged me in a sexual encounter and got pregnant.

[00:22:28] Speaker 02:
And his hiring was pursuant to a D.C.

[00:22:33] Speaker 02:
policy that allowed such a hiring without sufficient checks.

[00:22:36] Speaker 02:
He should not have been hired.

[00:22:40] Speaker 02:
And why can't that go forward?

[00:22:41] Speaker 01:
Well, I mean, that's a single-incident theory, which... No, no, it's not a single-incident.

[00:22:46] Speaker 02:
Pursuant to a D.C.

[00:22:48] Speaker 02:
policy allowing hiring of people like this without sufficient checks.

[00:22:52] Speaker 02:
That's the way I'm reading the complaint.

[00:22:54] Speaker 01:
Right, but as I think...

[00:22:55] Speaker 01:
Ms.

[00:22:56] Speaker 01:
Blue would acknowledge, and her arguments to the district court indicated and the district court understood, the premise, the basis for this conclusory allegation of a policy is simply the hiring of Mr. Wiesnuller and the facts related to his particular hiring.

[00:23:10] Speaker 01:
It doesn't extend beyond that.

[00:23:12] Speaker 01:
That's how the district court understood it based on the arguments presented to it, and I think that's consistent.

[00:23:16] Speaker 02:
He doesn't have the discovery yet.

[00:23:19] Speaker 01:
Well, I recognize that, Your Honor, but the Supreme Court said just because you have conclusory allegations, that doesn't unlock the door to discovery.

[00:23:26] Speaker 01:
You still need to adequately plead a plausible entitlement to relief, and that standard is not met on the facts alleged in this complaint.

[00:23:38] Speaker 01:
Unless the court has a question.

[00:23:40] Speaker 05:
I have a question that's outside the record, and that is, is there anything, are you aware of any policies in place by DC when they set up schools for emotionally disturbed or affected students that the people who teach them

[00:24:05] Speaker 05:
have some sort of training, or there's something in place to make sure that because they're being treated differently because of their emotional problems, the people who are teaching them and taking care of them also have to be aware of extra caution and so forth.

[00:24:26] Speaker 05:
This is a sad, horrible thing that happened.

[00:24:33] Speaker 05:
And it sounds like, even if it was just rumors that nobody did anything, they just turned a blind eye.

[00:24:42] Speaker 01:
Well, I don't deny it all.

[00:24:45] Speaker 01:
This is a very unfortunate incident.

[00:24:46] Speaker 01:
It was, contrary to DC public school policy, that it's not something that would have been tolerated.

[00:24:52] Speaker 01:
If the investigation had concluded that this had occurred, he would have been disciplined, terminated.

[00:24:58] Speaker 02:
Well, if they'd had a policy that declined to hire someone like this, it wouldn't have happened either.

[00:25:07] Speaker 01:
Well, but that is not a municipal policy.

[00:25:10] Speaker 02:
It's not disputed that this guy has a background that's not commendable, right?

[00:25:15] Speaker 02:
That's not disputed, right?

[00:25:19] Speaker 01:
Yes, not that a background check could have necessarily determined that.

[00:25:23] Speaker 01:
His background is not commendable, right?

[00:25:25] Speaker 01:
Well, absolutely, absolutely.

[00:25:26] Speaker 02:
And that at least all of us in this room would think long and hard before we hire him for a position of trust like this, right?

[00:25:34] Speaker 01:
Absolutely.

[00:25:35] Speaker 02:
That is that's what I think the complaint is suggesting.

[00:25:38] Speaker 02:
That's the problem.

[00:25:38] Speaker 02:
How could he get through?

[00:25:40] Speaker 02:
You can't have had in place

[00:25:42] Speaker 02:
anything that screams out, that's my complaint.

[00:25:45] Speaker 02:
There was no policy protecting people like me, who are emotionally disabled, from people like this, with this kind of background, who should never have gotten through.

[00:25:53] Speaker 01:
But Your Honor, that is a negligent hiring claim, and perhaps, perhaps you would have a claim for that, but that's not what is required to establish Minnell liability.

[00:26:02] Speaker 01:
And Judge Henderson, I mean, teachers are certified, they're licensed,

[00:26:07] Speaker 01:
I understand that there are particular certifications and licensing for special education students.

[00:26:13] Speaker 01:
And as I said, there is a policy that is required that background checks be performed on teachers and other types of pre-employment checks.

[00:26:20] Speaker 01:
There's no dispute that it's both required as district policy and that they are performed.

[00:26:25] Speaker 01:
And there's nothing on the facts particular where Mr. Weissmuller has no criminal record, no criminal conviction that is alleged.

[00:26:33] Speaker 01:
It's inadequate to the state of municipal policy.

[00:26:37] Speaker 01:
So if the court has no further questions, thank you.

[00:26:42] Speaker 05:
Any time left.

[00:26:43] Speaker 05:
Why don't you take a minute?

[00:26:44] Speaker 04:
Yeah, I have a question for her.

[00:26:48] Speaker 04:
Well, did you want to say something before I ask you a question?

[00:26:50] Speaker 04:
Because I have a focused question for you.

[00:26:52] Speaker 03:
Go ahead and ask me your question, Your Honor.

[00:26:56] Speaker 04:
So as I look at this, we talked about the various 1983 cases.

[00:27:00] Speaker 04:
But as I look at this, this complaint would have made it pre-Iqbal, right?

[00:27:06] Speaker 04:
Before Iqbal, this complaint would have been fine, under your 1983 theory.

[00:27:12] Speaker 04:
The question I have, and you just need to help me with this.

[00:27:16] Speaker 04:
Iqbal, as I read Iqbal, it says, there have to be allegations which, if taken as true, are plausible on the face.

[00:27:26] Speaker 04:
And you have to have allegations for each element, correct?

[00:27:30] Speaker 04:
Correct, Your Honor.

[00:27:34] Speaker 04:
OK.

[00:27:35] Speaker 04:
True, you have an allegation about a D.C.

[00:27:39] Speaker 04:
policy, but your theory is that that policy came from the actions of an individual final policy maker, correct?

[00:27:48] Speaker 03:
Correct, Turner.

[00:27:49] Speaker 04:
And that's, so how does that, without that, how does it survive Iqbal?

[00:27:55] Speaker 03:
It survives because within the ambit of a policy under the Supreme Court's precedent in Pembroke City of Canton versus Harris.

[00:28:02] Speaker 04:
I understand that.

[00:28:02] Speaker 04:
I understand that.

[00:28:03] Speaker 04:
I'm asking a pleading question and an ekbo question, which is it does say you have to plead each element.

[00:28:12] Speaker 04:
And since there are various theories by which a municipal policy can be established, this is just one of them.

[00:28:19] Speaker 04:
If the allegation you're resting on is not in there, why isn't the complaint inadequate under ICBAL?

[00:28:26] Speaker 03:
Because, I mean, even if we were to say a final municipal policymaker made the decision to hire Mr. Weissmuller without discovery, and remember, we are dismissed on a motion to dismiss, it would be a conclusory allegation that the district would probably argue is not entitled to any weight, does not survive ICBAL.

[00:28:44] Speaker 04:
So your theory then, let me just, okay, so is, let's see.

[00:28:48] Speaker 04:
So paragraph 82, I'm looking at paragraph 82.

[00:28:51] Speaker 03:
Yes.

[00:28:51] Speaker 04:
It says, the District of Columbia has a custom policy or practice, custom policy or practice, of failing to adequately investigate backgrounds of its teachers, right?

[00:29:00] Speaker 04:
That's the allegation.

[00:29:02] Speaker 04:
That is the allegation.

[00:29:03] Speaker 04:
OK.

[00:29:03] Speaker 04:
And your theory is that at the motion to dismiss stage, that's all you need to say.

[00:29:08] Speaker 04:
And what you need is discovery to find out who that person was.

[00:29:13] Speaker 03:
It is.

[00:29:13] Speaker 03:
And I think, I mean, something like that.

[00:29:14] Speaker 04:
And did you ask the district court for discovery on that?

[00:29:17] Speaker 03:
Not on that particular issue.

[00:29:19] Speaker 03:
I mean, we didn't even get to that point.

[00:29:20] Speaker 03:
I mean, the district court dismissed this complaint.

[00:29:24] Speaker 03:
I mean, we didn't say we need discovery so that we can draft an adequate complaint.

[00:29:28] Speaker 04:
No, no, no.

[00:29:29] Speaker 04:
I understand that.

[00:29:29] Speaker 04:
You file your complaint.

[00:29:30] Speaker 04:
But did you ask for discovery when the district moved to dismiss and said,

[00:29:36] Speaker 04:
You haven't alleged that this was a decision made by a final policymaker.

[00:29:41] Speaker 04:
Did you say, well, of course we didn't, because we don't want to make conclusory allegations, so we need some discovery?

[00:29:50] Speaker 03:
We didn't.

[00:29:50] Speaker 03:
I think we came here instead.

[00:29:53] Speaker 03:
You did what?

[00:29:53] Speaker 03:
We came to the Court of Appeals instead.

[00:29:55] Speaker 03:
I mean, our position just is that is not an allegation that is required in an initial complaint if it's something that couldn't have been known before discovery was taken.

[00:30:06] Speaker 03:
And indeed, the District of Columbia says in its briefs that we should have alleged

[00:30:11] Speaker 03:
that Michelle Rhee made the decision to hire Mr. Weissner.

[00:30:14] Speaker 03:
I think that points out the fallacy of the notion that you can know at this stage who would have hired him because she was not employed by the district when she was hired.

[00:30:22] Speaker 04:
There's two different questions.

[00:30:23] Speaker 04:
Question one is, do you have to allege

[00:30:26] Speaker 04:
that the decision was made by a final policymaker.

[00:30:29] Speaker 04:
That's our argument.

[00:30:30] Speaker 04:
That's issue one.

[00:30:31] Speaker 04:
And then issue two is, if so, do you have to allege who it is?

[00:30:34] Speaker 04:
And I can imagine, under Iqbal, you could have different conclusions for those two questions.

[00:30:39] Speaker 04:
Iqbal might well require an allegation that your theory is final policymaker, but not require that you identify who it is.

[00:30:49] Speaker 03:
Our position, Your Honor, is the answer to both those questions is no.

[00:30:53] Speaker 04:
Well, you've researched this really carefully.

[00:30:54] Speaker 04:
Do you know of any case that helps resolve this question, this precise question one way or the other?

[00:31:00] Speaker 03:
I don't, because the cases that deal with this issue where someone's complaint or cause of action is dismissed because of the final policymaker issue, it's always after summary judgment in all the cases that I've discovered.

[00:31:15] Speaker 03:
There has been discovery conducted on it.

[00:31:18] Speaker 03:
At that point, somebody can't prove that somebody is a final municipal policymaker.

[00:31:23] Speaker 03:
And at that point, the case gets dismissed.

[00:31:25] Speaker 03:
I haven't found cases at the motion to dismiss stage where somebody's complaint is dismissed for failure to contain this allegation.

[00:31:32] Speaker 04:
Some other circuits have held that you have to allege that there was a final policymaker, right?

[00:31:38] Speaker 04:
Not that I'm aware of, no.

[00:31:41] Speaker 04:
Okay.

[00:31:42] Speaker 04:
So you don't know of any case that actually resolves this precise question?

[00:31:45] Speaker 04:
That's correct, Your Honor.

[00:31:46] Speaker 04:
Okay.

[00:31:46] Speaker 04:
Thank you.

[00:31:47] Speaker 04:
That's all.

[00:31:47] Speaker 05:
Thank you.