[00:00:02] Speaker 00: Case number 14-8001, Henry, District of Columbia, a Municipal Corporation Petitioner. [00:00:08] Speaker 00: Ms. [00:00:08] Speaker 00: Ali Collin for the petitioner, Ms. [00:00:10] Speaker 00: Rifkin for the respondents. [00:00:52] Speaker 00: Good morning, and may it please the court. [00:00:54] Speaker 00: My name is Lauren Ollicon, and I represent the District of Columbia. [00:00:56] Speaker 00: I would like to reserve two minutes for rebuttal. [00:00:59] Speaker 00: In Walmart, the Supreme Court held that commonality requires a common contention that is capable of class-wide resolution, such that the validity of the claim or central aspect of it can be resolved in one stroke. [00:01:09] Speaker 00: And in DL, this court applied Walmart to hold that a class cannot be certified based on the allegation that the government has failed to comply with its legal obligations in multiple and discrete ways, rather than through a systemic policy or practice. [00:01:23] Speaker 00: But that was precisely the class that the district court certified here. [00:01:26] Speaker 00: That decision was manifestly erroneous under both Walmart and DL, thus warranting this court's 23-F review and, on the merits, Vocketer, the certification decision. [00:01:34] Speaker 01: I think that I have a problem with the way that you've argued this commonality issue in your brief. [00:01:41] Speaker 01: The district court found that of the commonality allegations in the complaint, paragraph 156, paragraphs A through G, found that at least two of those were common questions. [00:01:58] Speaker 01: You haven't articulated in your brief why those two [00:02:02] Speaker 01: questions are not common questions. [00:02:05] Speaker 01: Instead, your brief suggested that the district court found that those two questions were among kind of like uncommon questions. [00:02:18] Speaker 01: But you haven't argued that I see in your brief why the district court was manifestly erroneous in finding that those two questions were common. [00:02:29] Speaker 01: You haven't cited anything in the record. [00:02:31] Speaker 01: You haven't even made the army. [00:02:33] Speaker 00: Judge Wilkins, the questions that the court held to be common in its opinion were whether there was a failure to provide transition assistance. [00:02:40] Speaker 00: And we maintained both before the district court and in our briefs that the concept of transition assistance is too amorphous. [00:02:46] Speaker 00: The district court decision, and this is at JA 1246 and 48, lists 14 different discrete tasks that it thinks are within the ambit of transition assistance. [00:02:55] Speaker 01: No, the two common questions that the court found are at JA 1243 and note 58. [00:03:01] Speaker 01: Failure to offer sufficient discharge planning and failure to inform and provide nursing home residents with meaningful choices. [00:03:10] Speaker 01: of community-based long-term care alternatives to nursing facilities. [00:03:14] Speaker 01: And it said that some of the other alleged common questions in the complaint weren't really sufficient for class purposes, but it looked like the district court looked carefully at which ones were and said that at least those two were. [00:03:29] Speaker 01: And you haven't argued anything about why those two aren't and haven't cited anything in the record about why those two aren't. [00:03:35] Speaker 00: Judge Wilkins, I read footnote 58 as what the district court thinks that the plaintiffs will have to prove on causation in order to prevail on the merits. [00:03:42] Speaker 00: What I see is the district court's analysis of the common questions to actually be at plages 12.45 to 12.48, specifically on page 12.46 and 47 where he lists or she lists all of the different forms of transition assistance that she thinks are part of this case. [00:04:02] Speaker 00: But the common questions, I think if you're alluding to the ones at the bottom of page 44 and 45 of the JA, are there deficiencies in the district's existing system of transition assistance? [00:04:11] Speaker 00: If so, what are those deficiencies? [00:04:13] Speaker 00: And are the proven deficiencies causing unnecessary segregation? [00:04:16] Speaker 00: We submit that those are not sufficient questions after Walmart and DL. [00:04:19] Speaker 00: because are there deficiencies in the existing system of transition assistance? [00:04:23] Speaker 00: You have to figure out what the system of transition assistance is. [00:04:26] Speaker 00: For that you then go to 1247 and 1248 and you understand that transition assistance is not a unitary concept. [00:04:34] Speaker 00: It's not been passed upon by a judge. [00:04:35] Speaker 00: It's not a term of art. [00:04:37] Speaker 00: Where the district court got this set of transition assistance tasks was through settlement agreements and prior cases that have never been put to a [00:04:45] Speaker 00: in appellate court by allegations in the plaintiff's complaint, which we submit can't be the body of what transition assistance is here. [00:04:53] Speaker 00: But at base, the concept is amorphous. [00:04:55] Speaker 00: And so this amounts to nothing more than the allegation in DL that the district was failing to provide a free and appropriate public education. [00:05:01] Speaker 00: And that was precisely the allegation. [00:05:03] Speaker 01: It seems that you're arguing against the straw man that you built. [00:05:06] Speaker 01: At the bottom of 1243, the district court says plaintiff's claims raise the following common questions. [00:05:15] Speaker 00: Exactly, Your Honor. [00:05:15] Speaker 01: And it says, if so, what are these deficiencies? [00:05:18] Speaker 00: What are these deficiencies? [00:05:19] Speaker 01: And then it says, here are what the plaintiffs would like to prove to prove deficiencies, and it identifies two of the common questions that were in the complaint. [00:05:33] Speaker 00: It identifies two examples of a set of 14 tasks that could embody transition assistance. [00:05:39] Speaker 00: And so we think that, much like in DL, the allegation that there was a failure to provide a free and appropriate public education when that provision actually had four discrete aspects that later became subclasses, the same is true here. [00:05:51] Speaker 00: Transition assistance includes things like an individualized assessment upon admission. [00:05:55] Speaker 00: It includes things like assistance with applying for the EPD waiver or money follows the person program. [00:06:00] Speaker 00: It also just requires something even as general as interagency coordination about housing options. [00:06:06] Speaker 00: This isn't a case where there is a statutory set of discrete failure or requirements. [00:06:10] Speaker 01: I understand your argument, but it seems to me that the district court said that if they can prove that you systemically failed at any one of these two, [00:06:20] Speaker 01: you don't have an effective plan. [00:06:23] Speaker 01: It might be that there are 14 steps or 14 different things, but you gotta do all 14. [00:06:30] Speaker 01: And if you can't get past step one, then you don't have an effective plan. [00:06:33] Speaker 01: Isn't that what the district court has found? [00:06:36] Speaker 00: I don't read the district court as doing that, but even if that is what the district court was saying, I don't believe that satisfies commonality. [00:06:41] Speaker 00: What we need is a common policy or practice. [00:06:44] Speaker 00: So for example, if we had a practice at the district in applying the Money Follows the Person program, eligibility started at 180 days rather than 90. [00:06:52] Speaker 00: That would be a policy or practice that was capable of class-wide consideration and class-wide relief. [00:06:58] Speaker 00: However, what we have here is different district agencies that are in charge of different portions of this program, administering it in different ways, and the plaintiff has different objections to how the district is failing as to if there's an actual plaintiff. [00:07:08] Speaker 04: But there's ambiguity as to how to even understand what the district court's opinion found as commonality or not. [00:07:14] Speaker 04: How could it be a manifest error? [00:07:17] Speaker 00: I don't think there's ambiguity. [00:07:18] Speaker 00: I think that what the district court found as commonality, the questions that Judge Wilkins has pointed to, are there deficiencies? [00:07:24] Speaker 00: If so, what are they? [00:07:25] Speaker 00: Are not common questions because there's not a single answer for all of the plaintiffs. [00:07:30] Speaker 00: There's not a single answer. [00:07:31] Speaker 04: What if you just dropped the ball across the board on transition assistance? [00:07:37] Speaker 04: Let's just assume hypothetically it wasn't happening at all in any of the 14 ways. [00:07:42] Speaker 04: Because you have a class action that says, [00:07:45] Speaker 04: You have no transitions assistance program going here. [00:07:48] Speaker 04: You're supposed to, and you don't. [00:07:50] Speaker 04: And it's showing up in all these different corners. [00:07:53] Speaker 04: Would that work? [00:07:55] Speaker 00: Yes, Judge Millett, if there was the allegation in this complaint that the district provided absolutely no ability for nursing home facility residents to transition back into the community, that it didn't have the Money Follows the Person program, that it didn't have an EPD waiver, that there was absolutely just failure to do anything. [00:08:14] Speaker 04: But OK, and then let's just assume that most governments are going to have abject failure to do anything. [00:08:19] Speaker 04: And so if the argument is you've been engaged in substantial cross-cutting neglect, [00:08:24] Speaker 04: in this area, and you're not remotely doing it at the level the law requires. [00:08:29] Speaker 04: You're not doing it here, you're not doing it this step, you're not doing it that step. [00:08:32] Speaker 04: And it's just, instead of an abject failure to do anything, it is an across-the-board shortcoming that violates federal law. [00:08:41] Speaker 04: Could that be a class? [00:08:43] Speaker 00: That could be with the copy ads that were established in DL. [00:08:46] Speaker 00: DL, that was the case. [00:08:47] Speaker 00: The allegation of the class there was that you were failing to provide a free or appropriate public education. [00:08:50] Speaker 04: So you said it could or couldn't under DL? [00:08:52] Speaker 00: Well, under DL, what this court said needed to happen was a remand for subclasses. [00:08:56] Speaker 00: And now in on remand. [00:08:57] Speaker 04: No, what DL said is remand to consider again whether there can be one class. [00:09:00] Speaker 04: I mean, subclasses resulted, but that's not what our opinion said. [00:09:04] Speaker 00: And DL contemplated that subclasses could fix the problem. [00:09:06] Speaker 00: So for example, [00:09:06] Speaker 04: We don't know what would have happened if the court had certified a unified class. [00:09:12] Speaker 04: The opinion expressly left that open. [00:09:15] Speaker 04: remand for class or subclasses or no class at all. [00:09:18] Speaker 00: When DL first came up, there was a unitary class. [00:09:22] Speaker 00: This court held that it was not sufficient. [00:09:24] Speaker 00: That class, right. [00:09:24] Speaker 00: It said it could very well be satisfied by subclasses and remanded for that. [00:09:27] Speaker 00: We think that if this court were to remand for subclasses, then the court would be put to its burden and the plaintiffs would be put to their burden, determine whether or not there were any systemic deficiencies. [00:09:37] Speaker 04: But why if you have a complete failure, you can have one class? [00:09:41] Speaker 04: And if you instead have complete 50% failure, [00:09:45] Speaker 04: across all categories. [00:09:48] Speaker 00: That can't be a class? [00:09:50] Speaker 00: Because we need to know the reasons. [00:09:51] Speaker 00: If there's 50% failure... Why do you need the reasons when it's 50% failure, but you don't need the reasons when it's 100% failure? [00:09:56] Speaker 00: Because there's no suggestion that these claims can be litigated collectively in a productive fashion if the reason that 50% of these people are failed are for 14 different underlying reasons. [00:10:05] Speaker 00: Walmart says, and DL says, that there needs to be a common... What are they saying? [00:10:08] Speaker 04: The reason you're at 50 percent failure here is that you're only doing half the job you're supposed to be doing. [00:10:14] Speaker 04: It's not that there's different reasons for the beneficiaries. [00:10:18] Speaker 04: The reasons are you are only doing your job, you know, two and a half days a week. [00:10:22] Speaker 00: The discrete ways in which we are alleged to be manifesting those problems are disparate and individualized to each of the plaintiffs here. [00:10:28] Speaker 00: I'm just asking you hypothetically. [00:10:32] Speaker 01: The district court said the common question was that the district fails to offer discharge plan, sufficient discharge plan. [00:10:42] Speaker 01: Now you say in your brief and you're arguing, or you're arguing now, well that's not a common question. [00:10:48] Speaker 01: You took discovery. [00:10:50] Speaker 01: You had duties filed. [00:10:55] Speaker 01: what in the record shows that that's not a common question as to all of these plaintiffs. [00:11:01] Speaker 01: If you can't point to something, all we have is your say so, that it's not a common question, and your say so is not enough to establish manifest error. [00:11:09] Speaker 00: Not at all, Judge Wilkins. [00:11:10] Speaker 00: What we found through discovery and what the district court acknowledged was that there is a system of transition assistance in place. [00:11:16] Speaker 00: What plaintiffs think is that it's not effective enough. [00:11:18] Speaker 00: They are not making the allegation that across the board we just don't have this. [00:11:21] Speaker 00: That is the kind of policy or practice that would give rise to a common question under Walmart and DL. [00:11:25] Speaker 00: But in the absence of that, there's just this general mandate that the district need to do better. [00:11:29] Speaker 00: But even the best run agency may not achieve results 100% of the time. [00:11:33] Speaker 00: That does not mean that plaintiffs who are agreed by that can come in and put together a class action on the basis of that. [00:11:39] Speaker 01: That's not what the district court said. [00:11:40] Speaker 01: The district court said failure to inform and provide residents with meaningful choices. [00:11:47] Speaker 01: Okay, so the district court looked at the pleadings that were submitted. [00:11:52] Speaker 01: after discovery when the class certification issues and said it appeared that that's a common question. [00:11:59] Speaker 01: You're saying, well, it's not a common question, but you're not pointing to anything in the record that says that that's not a common deficiency for at least all of the eight or nine or however many named plaintiffs there are. [00:12:12] Speaker 00: Well, the district court engaged with us at the class certification hearing, and the district court acknowledged that the money follows the person program transitions people back into the community, that the EPD waiver transitions people back into the community, that there are programs in place that benefit putative members of this class in such a way that there's not a common question capable of a common answer. [00:12:29] Speaker 00: But beyond that, the district court failed to grapple with a very real problem, which we mentioned in our briefs, and I'm happy to discuss here, [00:12:34] Speaker 00: which is that there's a significant causation question as to the class, which defeats commonality as well. [00:12:39] Speaker 04: The district court grappled with that and acknowledged it. [00:12:42] Speaker 04: Found it enough here to go forward with class certification, but acknowledged it may well be a merits issue. [00:12:46] Speaker 00: Respectfully, Your Honor, in addressing commonality, the district court really gave it short shrift. [00:12:50] Speaker 00: It said, I'll deal with this later in a footnote. [00:12:52] Speaker 00: And then in the common or the typicality section of the opinion said, oh, well, I guess that's America's question. [00:12:57] Speaker 04: I don't think that's entirely fair. [00:12:58] Speaker 04: The district court went through rounds and rounds here on making them refine their class action definition, in part for that very reason, as I understood the history of it. [00:13:07] Speaker 04: And so I acknowledge that that was a close call. [00:13:10] Speaker 04: And so they acknowledge it's a close call on causation and the whole thing may not hold together for the entire case, but at this preliminary stage, this articulation of this class action as amended by the district court gets out of the starting gate. [00:13:25] Speaker 04: And again, I know you disagree, but that seems almost the sort of incremental marginal question that we wouldn't normally label manifest error. [00:13:32] Speaker 00: Well, respectfully, I don't think it's a marginal question, given that it was 297 of 355 residents pulled and nearly all of the named plaintiffs here articulated that a lack of available housing was what was preventing them from going back into the community. [00:13:45] Speaker 00: And that is something that the district court clearly acknowledged that the district has no obligation to provide and that the court could not order the district to provide. [00:13:53] Speaker 02: Suppose there was a claim that there's a failure to provide information. [00:14:00] Speaker 02: In particular, there are these five pieces of information that should be provided to each of the people in the class. [00:14:08] Speaker 02: And it listed those five specific pieces of information. [00:14:11] Speaker 02: Is that kind of claim appropriate for class treatment? [00:14:14] Speaker 00: I think it would be if there was a policy or practice or a failure to adopt a policy that disseminated information about the Money Follows the Person program or about the EPD wafer, for example, that could be a certifiable class. [00:14:24] Speaker 00: That very well could be a certifiable subclass on remand. [00:14:27] Speaker 00: But what we have here is the allegation that the district doesn't do enough upon admission, that it doesn't have written transition plans, that it doesn't facilitate people getting the necessary documentation to apply for various waivers. [00:14:38] Speaker 00: We have just this amorphous concept of transition assistance, and the plaintiffs would like to say, if we look at all of these, of these 14 different categories, we can find some plaintiffs that have been failed by the district. [00:14:47] Speaker 00: Our argument is you cannot do that. [00:14:49] Speaker 00: You need to have one common question that generates a common answer. [00:14:53] Speaker 00: And so if it were a class, just people who'd failed to get information. [00:14:56] Speaker 00: or class about people who did not receive the district assistance in learning about the Money Follows the Person program or the EPD waiver, then we'd be in a very different situation here. [00:15:05] Speaker 04: But what we do have... So I mean, I just want to clarify one thing. [00:15:08] Speaker 04: Is your view that there just can't be any class here at all or that there should be... You can have class here. [00:15:13] Speaker 04: It just needs to be five or six or a dozen subclasses. [00:15:18] Speaker 00: I don't think the classes certified can stand. [00:15:20] Speaker 00: However, I think where this should go back down for subclasses, it could very well be that a class could be certified. [00:15:27] Speaker 00: That said, given that there are 14 different sets of transition assistants identified by the district court, it could well be that those individual subclasses don't all meet Rule 23's requirements of numerosity, for example, beyond that commonality or typicality. [00:15:40] Speaker 00: But I don't say that no class could ever be certified here. [00:15:43] Speaker 00: If the plaintiffs can come to the district court and say, this is the common question and this is the common answer, rather than just saying the common question is the failure to provide transition assistance, which is a whole, the amorphous concept, that's what we are arguing cannot stand here. [00:15:55] Speaker 00: But on remand, I think subclasses could be appropriate. [00:15:58] Speaker 02: How should we approach the question of manifest error? [00:16:01] Speaker 02: How should we think about manifest error? [00:16:04] Speaker 00: Manifest error, in the context of 23F, I think the best is this court's notation in Johnson that manifest error is when the district court's decision is squarely foreclosed by existing precedent. [00:16:15] Speaker 00: We have here Walmart and DL. [00:16:17] Speaker 00: I cannot submit enough. [00:16:19] Speaker 00: DL is precisely the same type of class that was certified here and this court held it could not stand. [00:16:24] Speaker 00: This court said the allegation that the district has failed to provide a free and appropriate public education to students when that actually broke down into four discrete failures upon the part of the district was not certifiable as a unitary class. [00:16:36] Speaker 00: It then remanded for the determination of subclasses. [00:16:39] Speaker 00: So I think that in light of both Walmart and DL, we have manifest error. [00:16:42] Speaker 01: But beyond that, 20 CF... But isn't this a different type of claim than in DL in that for this Olmstead Act claim, you have to establish that there's an ineffective Olmstead Act plan, that that's an element, that's a common element? [00:17:01] Speaker 00: I actually, Judge Wilkins, think this is an easier case than in DL because, and for this reason, DL involved a statutory scheme. [00:17:08] Speaker 00: 42 USC 1415 clearly sets forth what the district's obligations are in very discreet statutory terms. [00:17:16] Speaker 00: And so you can look at that and see what is the district obligated to do and is it doing that. [00:17:19] Speaker 00: Here, Olmstead is just a mandate to bring people into the community and to give in a most integrated setting as possible. [00:17:25] Speaker 00: It's not a checklist that you can then go through and determine whether or not the district is meeting those needs. [00:17:29] Speaker 01: In other words, it's a more amorphous type of a claim. [00:17:32] Speaker 01: And therefore, it's a more amorphous type of a class you would have. [00:17:36] Speaker 00: It's a more amorphous type of a claim and that's why you need more of a concrete common question. [00:17:41] Speaker 00: You can't just say Olmsted says do better and I want the district to do better. [00:17:44] Speaker 00: What you need to say is the district has a policy or practice or a failure to adopt a policy or practice that if remedied would lead to relief for a class of plaintiffs. [00:17:52] Speaker 00: But here what the plaintiffs are asking for is [00:17:54] Speaker 00: across the board improvements in a varied set of transition assistant characteristics. [00:17:59] Speaker 00: And there's no reason to believe that all of the plaintiffs would benefit from all of these or that resolution in any of these questions would apply to all of the plaintiffs. [00:18:07] Speaker 04: Can I just clarify one other thing? [00:18:09] Speaker 04: You don't, at least at this stage, dispute that Olmstead applies to these plaintiffs' claims for transition assistants, including the particular ones that were spelled out by the district court? [00:18:21] Speaker 04: Do you accept, at least, that Olmstead [00:18:24] Speaker 04: whether individually litigated or subclass and however litigated could require all of these things in the abstract, maybe not from D.C. [00:18:33] Speaker 00: I haven't delved deeply enough into each particular type of transition assistance that the plaintiffs are asking for here to determine whether Olmsted mandates all of them. [00:18:43] Speaker 00: What Olmsted mandates is that individuals be in the most inclusive setting possible. [00:18:47] Speaker 00: It very well is the case that the district needs to provide some means for individuals that are in nursing homes to get back into the community. [00:18:54] Speaker 00: And whether or not that can be satisfied just by the existence of the money-followed-the-person program and the EPD waiver, or whether it really includes, as part of an effective Olmstead plan, everything down to helping someone find a driver's license so that they can apply for various programs or apply for housing vouchers, that's a merits question. [00:19:10] Speaker 00: That's a question that may very well be litigated either through subclasses or individually. [00:19:14] Speaker 04: But you're not saying that that granular level of merits is not the basis for objective class certification? [00:19:18] Speaker 04: Not at all. [00:19:18] Speaker 00: Olmstead does not have a particular statutory set or regulatory set of boxes that you can check. [00:19:24] Speaker 00: It is developed through settlement agreements and other things, but it cannot be that just by identifying 14 different sets of transition assistance and saying some plaintiff may have not gotten one of these services and as a result they may or may not be in a nursing home, that's not sufficient for purposes of class certification. [00:19:42] Speaker 00: So if there are no further questions, I would ask this court, grant 23F review, excuse me, Your Honors, and vacate the class certification decision. [00:19:49] Speaker 00: And I do hope you'll give me a few seconds on rebuttal. [00:19:51] Speaker 00: We'll give you time on rebuttal, don't worry. [00:19:52] Speaker 00: Terrific, thank you so much. [00:19:53] Speaker 02: Thank you. [00:20:11] Speaker 03: Good morning, Your Honors. [00:20:12] Speaker 03: I'm Marjorie Rivkin. [00:20:13] Speaker 03: I'm here on behalf of hundreds of respondents who are unnecessarily segregated in nursing facilities who contend that the district fails to provide effective transition assistance to connect them to existing community-based services in violation of its affirmative duty under Title II of the ADA and Olmstead v. Elsie as the Supreme Court interpreted Title II. [00:20:36] Speaker 04: How do you see the Americans with Disabilities Act or Rehab Act mandates in this context as operating differently from the IDEA and DL so that you have an appropriate class action here with the entire group, but you didn't in DL? [00:20:56] Speaker 04: How is this different? [00:20:57] Speaker 04: Is it something by the statutory mandate or something else? [00:21:01] Speaker 03: Well, it is one statutory provision. [00:21:05] Speaker 03: in the Title II, and it's also the explicit congressional finding that unjustified institutionalization of people with disabilities is a recognized form of discrimination. [00:21:20] Speaker 04: How's that different from DL? [00:21:21] Speaker 04: They were asserting things that were, it wasn't, it was a different statute in this phrase in terms of, but it's the same in terms of rights that people, services that people are entitled to in order to have equal educational opportunity. [00:21:35] Speaker 03: Both statutes place an affirmative duty on state and local governments. [00:21:40] Speaker 03: In that way, they're similar. [00:21:41] Speaker 03: In this case, we have one statutory provision, one legal claim here, one harm, unnecessary segregation of the class members. [00:21:53] Speaker 03: And we're seeking one system of transition assistance. [00:21:58] Speaker 03: Whereas in DL, there were four separate provisions of the IDEA at issue, four separate harms. [00:22:04] Speaker 04: But one might say that's just a level of generality at which you've articulated your claim. [00:22:10] Speaker 04: You could have articulated a claim at the same level of generality that you have in DL and said there's just a failure to have an appropriate child find process, which breaks down into 14 components. [00:22:24] Speaker 04: Just as you said here, you don't have transition assistance, which breaks down into 14 components. [00:22:29] Speaker 04: How am I wrong? [00:22:31] Speaker 03: Well, I think that, as I believe the Court has said, at a different level of generality, there could be commonality issues with any class, depending on how you define it. [00:22:43] Speaker 03: But here we have one unitary statutory provision. [00:22:47] Speaker 03: We have a regulation that Congress authorized the Department of Justice to promulgate. [00:22:56] Speaker 03: And we have Supreme Court guidance that says, [00:22:59] Speaker 03: to states and local governments. [00:23:01] Speaker 03: You have to provide services to people with disabilities in the most integrated settings to their needs without a checklist. [00:23:07] Speaker 04: You had one statutory provision in Walmart. [00:23:10] Speaker 04: Yes, and he... That's an answer, I think. [00:23:13] Speaker 03: In Walmart, I mean, I have to step back a second just to say that Judge Huvel absolutely followed both DL and Walmart. [00:23:21] Speaker 03: She made the necessary factual finding. [00:23:24] Speaker 03: She did a very rigorous analysis after two [00:23:28] Speaker 03: rounds of discovery after two and a half years of development of the record and she made the following three points following in lockstep what the Walmart standard is. [00:23:44] Speaker 03: She conducted the rigorous analysis and she found that plaintiffs had established their common contention that the district is injuring the class [00:23:51] Speaker 03: by its failure to implement an effective system of transition assistance to provide access to community-based services in violation of its affirmative duty under the ADA. [00:24:01] Speaker 03: And this common contention can be resolved with a one-stroke injunction. [00:24:06] Speaker 02: What specifically are they doing or not doing? [00:24:13] Speaker 03: They're not providing the basic three categories of [00:24:18] Speaker 03: transition assistance that people need in order to connect to the community-based services which exist in the district. [00:24:26] Speaker 03: So one area, one category of assistance would be to provide information about what the community-based options are for people under the Medicaid long-term care system. [00:24:38] Speaker 04: Do you have any named plaintiff in this case that was injured by that failure? [00:24:44] Speaker 03: Yes. [00:24:45] Speaker 04: Who was that? [00:24:46] Speaker 04: I wasn't aware. [00:24:46] Speaker 04: I couldn't figure out who was it. [00:24:47] Speaker 04: They all seemed to know about their options. [00:24:49] Speaker 03: Well, once counsel explained the options, and this far into the case, the named plaintiffs now know their options, but they're not getting the assistance to move that. [00:25:01] Speaker 04: Sure, I got that argument. [00:25:02] Speaker 04: But then if you want an injunction that says provide information, what plaintiff is going to be benefited by that? [00:25:07] Speaker 04: Name plaintiff. [00:25:08] Speaker 03: Okay, all of the named plaintiffs who are still in the nursing facilities, we have four now who are still in the nursing facilities, would benefit from updated information. [00:25:18] Speaker 03: The information changes. [00:25:20] Speaker 03: As you see in Judge Huvel's decision, for example, there was a waiting list for the biggest program of Medicaid waiver community-based services, which no longer exists. [00:25:30] Speaker 03: The steps for how to access the services have just changed and been updated, which is periodically done. [00:25:38] Speaker 03: I mean, as I assume, with any system that's undergoing some changes. [00:25:44] Speaker 03: The second, just so I can complete. [00:25:46] Speaker 03: I'm sorry, I interrupted you. [00:25:47] Speaker 03: The second category of transition assistance that people need are assistance with applications for the benefits and services and for housing. [00:25:57] Speaker 03: People need applications in order to secure opportunities for housing. [00:26:03] Speaker 03: We're not asking the district to provide housing here, as we've made very clear, but they do need the applications and help with filling them out and documenting what's necessary to complete those applications. [00:26:17] Speaker 03: The third thing is they have to be assisted with actual... Let me pause on the second one. [00:26:22] Speaker 02: What exactly would that entail? [00:26:26] Speaker 03: That would entail applications for subsidized housing, for public housing. [00:26:32] Speaker 02: What would the assistance entail? [00:26:34] Speaker 03: It would entail helping people actually complete the applications and secure the documentation that they need, such as identification documents, benefits statements, and the like. [00:26:49] Speaker 03: And so they would be actually assisted in the third category with connecting to community-based providers who provide the Medicaid long-term care services in the district that our class members need and qualify for by virtue of the fact that they're in nursing facilities based on the same level of care criteria that the district [00:27:11] Speaker 03: applies to people seeking community-based long-term care Medicaid services. [00:27:17] Speaker 02: What does connecting to mean in this context? [00:27:22] Speaker 02: Just describe more granularly how that would play out. [00:27:27] Speaker 03: It would involve going through the list of providers with a class member and helping them to make the connection, conveying the information that's necessary about the individual's needs to the agency and then arranging for the district. [00:27:46] Speaker 02: Isn't that going to be different for different people? [00:27:49] Speaker 03: No, it's actually one process for one set of services that's not [00:27:54] Speaker 03: for different people here. [00:27:56] Speaker 03: We have, which is the other distinction, I would say, from DL, where there were discrete stages in a process in DL where someone went from being found to identified to evaluated to served. [00:28:12] Speaker 03: And here we have people who need the services as a whole. [00:28:18] Speaker 03: It's a process. [00:28:19] Speaker 03: It doesn't matter where you enter and end in the process. [00:28:24] Speaker 03: You don't go sequentially from connecting to a community-based agency, filling out applications. [00:28:32] Speaker 03: It's one set of services that benefits all class members. [00:28:39] Speaker 01: In essence, you're arguing something akin to proper case management? [00:28:45] Speaker 03: In essence, yes, Your Honor. [00:28:48] Speaker 03: But it's a class-wide remedy here. [00:28:50] Speaker 03: We're seeking development and implementation of a system of transition assistance. [00:28:55] Speaker 03: That's actually how we first, in our first complaint, we framed the relief request. [00:29:01] Speaker 03: And then Judge Huvel asked us to be more explicit in breaking down specifically what the components would look like. [00:29:08] Speaker 03: But obviously, as you well know, this precise terms of the remedy [00:29:14] Speaker 03: are not needed at the class certification stage. [00:29:18] Speaker 03: The district would be the one to shape the remedy in the first instance. [00:29:23] Speaker 02: We have to be sure at this stage that there is a single remedy that would apply class-wide. [00:29:29] Speaker 02: And that's my instinct when I've read this is that, and maybe my questions reveal this, that there's some subclasses or more discrete, specific [00:29:40] Speaker 02: types of assistance that can form the basis for class-wide relief, but my instinct when I hear failure to provide effective transition services after I read DL and Walmart, but especially DL, is that that's at a level of generality that's a little bit too broad under DL. [00:29:58] Speaker 02: So that's my concern. [00:29:59] Speaker 02: Can you respond to that? [00:30:01] Speaker 03: Well, I think that we did specify and Judge Huvel followed several post Walmart. [00:30:09] Speaker 02: Yeah, I read her transcripts and she was clearly struggling with the same things we're struggling with, which is the level of generality and how specific it needs to get. [00:30:17] Speaker 02: And that's what I'm still struggling with. [00:30:20] Speaker 03: And I think we're talking here about one indivisible remedy, one set of services that people would [00:30:30] Speaker 03: access at any point in their nursing facility tenure, so to speak. [00:30:39] Speaker 02: So it's a person, let me just play it out, it's a person or persons who would help you, who would give you the information, help you fill out the form, get any documentation you need for the form, and help you call, email, mail, contact some provider. [00:30:59] Speaker 02: Is that basically it? [00:31:00] Speaker 03: Yes, and the district would carry on with its assessment of the level of service needs when the person is discharged. [00:31:10] Speaker 02: It seems to me defining it that way or getting more specific would be helpful to you in some sense, although I think probably I understand why you wouldn't want to do that. [00:31:18] Speaker 02: It also sounds a little more individualized, which is a problem when you're talking about class actions. [00:31:25] Speaker 02: But in any event, breaking it down like that seems [00:31:29] Speaker 02: more manageable than failure to provide effective transition services, which sounds very DL-like. [00:31:36] Speaker 02: That might not be a question. [00:31:41] Speaker 03: If I may, just to briefly highlight a couple of the facts that Judge Huvel delved into in reaching her decision that we established commonality here. [00:31:55] Speaker 03: Judge Huvel [00:31:57] Speaker 03: found commonality based on the fact that consistently 5 to 600 people in nursing facilities have expressed interest in community-based alternatives or direct preference for community-based alternatives. [00:32:13] Speaker 03: She also established that the nursing facilities are consistently in the district at 90-plus percent occupancy. [00:32:25] Speaker 03: The district has, over the past [00:32:29] Speaker 03: two years, I believe, reserved only 1% of its community-based Medicaid waiver slots for [00:32:38] Speaker 03: people in nursing facilities. [00:32:39] Speaker 03: 1% of 4,000, this year it's 4,387 slots are reserved for our class members. [00:32:48] Speaker 03: And in fact, Ms. [00:32:50] Speaker 03: Alecann referenced the Money Follows the Person program, which is a program that the federal government has offered to states and local governments to incentivize [00:33:04] Speaker 03: offering transitioning people out of institutions such as nursing facilities. [00:33:09] Speaker 03: And the district held a lottery for nursing facility residents for that program nearly two years ago. [00:33:17] Speaker 03: But they only transitioned 16 of the 40 lottery winners who, by the way, had housing subsidies as part of the program. [00:33:26] Speaker 03: Within a nine-month period, only 16 were transitioned by the district. [00:33:30] Speaker 04: Can I ask you just a practical question? [00:33:34] Speaker ?: Yes. [00:33:35] Speaker 04: Why isn't it easier for you to litigate with people in subclasses, like they did in DL? [00:33:45] Speaker 04: You've got a list of services. [00:33:48] Speaker 04: It's still one single litigation in district court. [00:33:53] Speaker 04: Everybody gets to still be there. [00:33:54] Speaker 04: We just sort of identify who needs what. [00:33:57] Speaker 04: So why is that harder than doing this one class action? [00:34:01] Speaker 04: I just don't know practically. [00:34:03] Speaker 04: I don't know why it's easier for them to have subclasses, I don't know why it's harder for you. [00:34:07] Speaker 03: I think practically speaking in this case, people would end up being in multiple subclasses simultaneously because if they needed updated information on an ongoing basis, for example, if they needed updated, they needed help with applications, but then there would be new applications coming online for housing opportunities that might not have been in place when [00:34:32] Speaker 03: they initially got the application. [00:34:35] Speaker 03: So it would be odd, I wouldn't say totally unmanageable, but difficult to manage, I would think. [00:34:45] Speaker 03: Remedy with, I mean subclasses that were designed based on the remedy. [00:34:51] Speaker 03: So you'd be splitting up [00:34:53] Speaker 02: the different types of assistance into... It's also the harm, I mean it's the harm and the remedy, and the what are you missing that you need. [00:35:01] Speaker 02: The information is probably easily solved. [00:35:05] Speaker 02: So the bigger one is probably the assistance with the forms and then the contacting the providers, I guess. [00:35:13] Speaker 02: And it seems unlikely to me that all of them have the same issues on that. [00:35:18] Speaker 02: But you're telling me they do, right? [00:35:21] Speaker 02: There's just one or that we should think about it as one broad issue. [00:35:26] Speaker 03: Well, it's one set of services. [00:35:29] Speaker 03: The only question within which is the number of hours of the service that individuals would need. [00:35:36] Speaker 02: So DL said, and maybe I'm blabbering this, but DL said the problem was that it involved different policies and practices at different stages of the find and fake process. [00:35:47] Speaker 02: And that does sound, different stages of the process does sound, [00:35:51] Speaker 02: like we're talking about here as well. [00:35:53] Speaker 02: And again, the answer in DL was not to say, not now, not ever. [00:35:58] Speaker 02: The answer was to say, get more specific. [00:36:01] Speaker 02: Or at least that was a contemplative answer, I think, which proved to occur. [00:36:06] Speaker 03: I mean, to my mind, the difference there is that it's a sequential process. [00:36:12] Speaker 03: There are discrete stages in a sequential process. [00:36:15] Speaker 03: Whereas here, it's more fluid. [00:36:19] Speaker 03: for the whole class, and we're seeking the class-wide relief. [00:36:23] Speaker 04: So I think, so it sounds like you're saying someone could be, it might look like at the beginning, I guess it keeps evolving, that is, at the beginning it may look like they need help with filling out forms, but then something could change quickly, and then they would need someone to get them some updated information, or maybe they wouldn't need housing, and then something would change, and they wouldn't have their condition, or external circumstances would change, and so people don't slide into stages, [00:36:49] Speaker 04: As much as I did in DL, is that what you're saying? [00:36:51] Speaker 04: Exactly. [00:36:53] Speaker 03: Okay. [00:36:57] Speaker 03: So, Judge Covell recognized that this is [00:37:02] Speaker 03: among the quintessential B2 classes where the district has refused to act to provide effective transition assistance in violation of its affirmative duty under the ADA to enable our class members to access those community-based long-term care services and avert the unnecessary segregation that they're currently subjected to. [00:37:32] Speaker 03: The judge followed not only Walmart and DL here, but she followed them and analyzed them carefully within the context of Olmstead versus LC. [00:37:44] Speaker 03: She followed two particular post-Walmart Olmstead cases, that is Kenneth R. versus [00:37:54] Speaker 03: Hassan, Lane versus Kitzhaber, both of which involved elements of the kinds of assistance that we're speaking of here in order to give people with disabilities the opportunity to live in and or work in more integrated settings than the institutionalized [00:38:20] Speaker 03: system they were in. [00:38:22] Speaker 03: Actually our class is more narrowly drawn than those classes because, for example, both [00:38:31] Speaker 03: Well, Kenneth R. and another case, NB versus Jemos, involved both people in institutions and people in the community at risk of institutionalization. [00:38:43] Speaker 03: Here, we don't have that issue. [00:38:45] Speaker 04: We have a very narrow lead. [00:38:46] Speaker 04: I thought you did. [00:38:47] Speaker 04: I thought you had some of your name plaintiffs who were out and have concerns about re-institutionalization. [00:38:52] Speaker 03: Well, now we do. [00:38:54] Speaker 03: But the class has defined does not include an at-risk population, which is what those. [00:39:00] Speaker 04: So are those nameplates out now then? [00:39:02] Speaker 03: Those three are out. [00:39:04] Speaker 03: Actually, one just passed away. [00:39:08] Speaker 03: So the three are out. [00:39:11] Speaker 03: And they maintain their status as class representatives. [00:39:16] Speaker 03: because of the inherently transitory nature of their situations, their conditions. [00:39:22] Speaker 01: I guess that might answer a question that I wanted to ask, which is just an elemental question of why do you need a class action at all as opposed to just bringing a multi-plane of action? [00:39:39] Speaker 03: We have between 500 and 2,000 [00:39:44] Speaker 03: in our class as we estimate now and Judge Huvel found in the statistics provided. [00:39:53] Speaker 03: It would be probably duplicative and wasteful of the district court's time to be individually litigating. [00:40:05] Speaker 03: What we've seen is there's some fluidity. [00:40:07] Speaker 03: So if we had a multi plaintiff case, we'd be [00:40:14] Speaker 03: pretty consistently substituting and bringing individual actions that would have duplicative evidence. [00:40:23] Speaker 03: What we're talking about here is a class-wide system based on class-wide proof [00:40:30] Speaker 03: aggregate proof of how people experience their nursing facility placement, what is their experience with access to the community-based services that exist that they desperately need to access in order to move out, that they can't just pick up the phone themselves. [00:40:49] Speaker 03: Most of them don't have phones in the nursing facilities, but they can't pick up the phone and call a provider because they don't know the providers exist. [00:40:58] Speaker 03: They don't know about the services. [00:41:01] Speaker 02: So the end game, just give me a vision of what the end game is in terms of what you're seeking. [00:41:08] Speaker 02: A person or persons to whom each of the plaintiffs can go to say, help me. [00:41:17] Speaker 03: Exactly. [00:41:17] Speaker 02: And that person then is charged with making sure your forms are in order and making the contact, in essence, a representative to assist you to get through the bureaucracy. [00:41:31] Speaker 03: Exactly. [00:41:32] Speaker 03: I mean, it would be a system. [00:41:34] Speaker 03: So that wasn't dependent upon one individual who had to be found in a government office. [00:41:42] Speaker 02: Right, but it's going to work better if there's, you know, each person has, okay, I'm responsible for these 100 or 50 or 25 or whatever. [00:41:52] Speaker 02: I doubt that's how it works, but it would be efficient if it worked that way. [00:41:56] Speaker 03: If there was a structure, an infrastructure built with procedures and protocols and, you know, so that [00:42:03] Speaker 02: things and that doesn't. [00:42:05] Speaker 02: So what's happening now? [00:42:06] Speaker 02: This is getting maybe a merits question more, but what's happening now in your view on that kind of assistance? [00:42:16] Speaker 03: It's very ad hoc, politely speaking. [00:42:22] Speaker 03: It's very ad hoc. [00:42:24] Speaker 03: Very few people are getting any of the assistance. [00:42:28] Speaker 03: There is no proposed date or time when there might be another lottery for this. [00:42:38] Speaker 02: You got a massive housing problem. [00:42:39] Speaker 02: We'll put that aside. [00:42:41] Speaker 02: But right on the back end, getting housing. [00:42:44] Speaker 03: There is an issue, but as Judge Huvel pointed out, the availability of housing, subsidized housing for our class is very much in dispute. [00:42:55] Speaker 03: The Public Housing Authority here actually has 600 fully wheelchair accessible public housing units, but people need to apply [00:43:04] Speaker 03: in order to get those units. [00:43:07] Speaker 03: There are a myriad other subsidized housing developments around town. [00:43:14] Speaker 03: And the district itself, as Judge Huvel pointed out, controls 1,500 housing vouchers just within the human services agencies that are under the deputy mayor responsible also for overseeing the Medicaid. [00:43:31] Speaker 03: long-term care programs. [00:43:32] Speaker 03: So there's a lot of discretion and debate about the availability of housing, but it's no longer the case in the district that there is no accessible housing because there is. [00:43:44] Speaker 02: Thank you. [00:43:47] Speaker 02: Thank you. [00:43:48] Speaker 02: We'll give you several minutes for rebuttal. [00:43:58] Speaker 00: Thank you, Your Honor. [00:43:58] Speaker 00: I'll be brief because I know I went over my time initially. [00:44:01] Speaker 00: I just have three points. [00:44:02] Speaker 00: The first is 23b2 requires an indivisible remedy. [00:44:07] Speaker 00: Walmart says an indivisible injunction. [00:44:09] Speaker 00: And if you look at pages 33 and 34 of our brief, it lists the injunction that the plaintiff sought here. [00:44:16] Speaker 00: It is not indivisible. [00:44:17] Speaker 00: It is individualized. [00:44:18] Speaker 00: And then second, I didn't have a chance to fully respond to your question, Judge Kavanaugh, about why 23-F review. [00:44:24] Speaker 00: 23-F review is obviously appropriate here because of the manifest error, but also 23-F exists to allow an appellate court to come in and cut short an erroneous class certification decision before it goes like it did in DL to dispositive briefing, to liability, and ultimately to a remedy phase, only to then come up here and have the circuit decision reverse the class certification decision below. [00:44:44] Speaker 04: And here... [00:44:45] Speaker 04: Is that a manifest error argument? [00:44:47] Speaker 00: No, that's a 23f. [00:44:48] Speaker 00: That's a variety of 23f review. [00:44:49] Speaker 00: 23f exists to give this court discretion to come in and cut short an erroneous class certification decision. [00:44:54] Speaker 04: That can be alleged in any case, right? [00:44:56] Speaker 00: Well, it exists in any case, but I think it's uniquely important here because we have a vulnerable population. [00:45:02] Speaker 00: It's an elderly population. [00:45:04] Speaker 00: And so we need to have this case resolved sooner rather than later. [00:45:06] Speaker 00: if ultimately the district is going to be held to be liable on any certain set of issues and remedies going to be ordered. [00:45:11] Speaker 04: I guess the normal rule is that if you want efficiency in litigation, you don't have interlocutory review. [00:45:18] Speaker 00: except for in class actions where otherwise... No, I don't think it's just in class actions. [00:45:24] Speaker 04: I think the reason we have such narrow categories for interlocutory review is that we recognize even in class actions the most efficient course is to have litigation proceed and deal with things at the end unless there are truly exceptional reasons. [00:45:38] Speaker 04: So it can't just be [00:45:39] Speaker 04: It's a class action. [00:45:42] Speaker 04: And it can't just be, you know, we'd like this to be over sooner because everybody's going to say the same thing. [00:45:48] Speaker 00: Of course, this is assuming manifest error. [00:45:50] Speaker 00: I'm saying, I believe we have manifest error. [00:45:51] Speaker 04: Well, because it's manifest error, we don't need a vulnerable population. [00:45:54] Speaker 04: It doesn't matter, right? [00:45:55] Speaker 00: Well, Rule 23, when it was enacted in 1998, was to make a departure from the general rule against interlocutory rulings because, in the class certification context, it is so important. [00:46:06] Speaker 00: And I think that's especially so here because of the vulnerable population and because of the judicial resources that could be suspended. [00:46:11] Speaker 04: Could you argue vulnerable population in your brief? [00:46:14] Speaker 00: We just talked about the conserving party and judicial resources. [00:46:18] Speaker 04: And that argument strongly is something that, again, is going to apply in every class action. [00:46:22] Speaker 00: It is a reason why the rule was changed to an introductory review in 23F, but I think that you can take, in your discretion, notice of when a case is going to take significant resources and more resources, like a class here that is broadly defined and that is seeking all sorts of different types of relief. [00:46:37] Speaker 04: I guess I'm not sure what point there is to having the death knell category, if in fact we're going to say any of it's not a death knell, if it's more efficient, we'll do it. [00:46:45] Speaker 04: It just seems to me we're opening, this court has said, prior to the president, that these are very narrow, exacting, [00:46:51] Speaker 04: categories and it'll be very much the exception when review is granted and so it sounds to me like having a category of well it'll be really expensive and take a lot of resources is not consistent with our precedent. [00:47:07] Speaker 00: I am not saying that there needs to be a category for expensive or big cases. [00:47:12] Speaker 00: I am merely saying that Rule 23F was put into place to allow for circuit courts to take immediate review of these cases because they are big, because they are pressing. [00:47:20] Speaker 00: You should say it with manifest error. [00:47:22] Speaker 02: That's the reason why we have this is what you're saying. [00:47:26] Speaker 00: I started this with manifest error, we believe, is met here. [00:47:29] Speaker 00: I'm saying manifest error requires exercise of your discretion over 23F review to vacate the course. [00:47:37] Speaker 02: That's our case law. [00:47:37] Speaker 02: The language of the rule actually doesn't say anything about that, but I'll put that aside for now. [00:47:41] Speaker 02: Anyway, your third point is? [00:47:43] Speaker 00: My third point is just about the nature of the subclasses and how it could be transient or fluid. [00:47:48] Speaker 00: That's the same as the case in DL. [00:47:50] Speaker 00: DL wasn't you have just a discrete failure to be found, you have a discrete failure to get an IEP, you have a discrete failure to get services. [00:47:56] Speaker 00: The child moves through the system in order to get a free and appropriate public education and at different stages will need different of those services. [00:48:02] Speaker 00: Very much the same here, that if there were subclasses that were certified, the first subclass could be for the provision of information about available programs. [00:48:09] Speaker 00: A second subclass would be for people that need housing to get information about available public housing options in the district. [00:48:15] Speaker 00: The subclasses could be structured much as they were in DL. [00:48:18] Speaker 00: to allow for the discrete. [00:48:20] Speaker 02: Is that something you want or is that something you're going to fight if it went back on that? [00:48:25] Speaker 00: As I said, I don't believe you could just check a box and have subclasses for all 14 categories of transition assistance in the district courts' opinion. [00:48:33] Speaker 00: I think that there may very well be some subclasses that can be certified here. [00:48:37] Speaker 00: If this goes back down for that, parties will have to litigate what is most productive. [00:48:40] Speaker 02: How about a subclass that says, I need, there's a group of people who needs help filling out the form and getting documentation. [00:48:47] Speaker 02: I'm assuming there's a form in getting documentation. [00:48:54] Speaker 00: I suppose could be a subclass. [00:48:57] Speaker 00: However, I think it needs to be reviewed by the district court. [00:48:59] Speaker 00: The parties would need to put submissions as to what kind of forms. [00:49:02] Speaker 00: I mean, the money follows the person program exists just for this population. [00:49:06] Speaker 00: Plaintiff's Council talks about how the EPD waiver, it's only 1% of slots. [00:49:09] Speaker 02: That's because the EPD waiver... I just want to make sure this subclasses thing is not a bait-and-switch that we're thinking about. [00:49:17] Speaker 02: I'm not putting that on you. [00:49:20] Speaker 02: I'm just saying, I don't want to... [00:49:22] Speaker 02: that we are certainly no I know DL there can be some classes and then find out oh that was actually not really realistic either. [00:49:31] Speaker 00: We think that in light of DL subclasses are an option here whether they play out on the ground depending how they choose to define them and how the district thinks they should be set up. [00:49:39] Speaker 00: That is a question that will need to be litigated in the district court. [00:49:42] Speaker 01: That's what this for some classes. [00:49:47] Speaker 00: Your Honor, I do believe the issue of subclasses came up and plaintiffs were the ones that didn't want subclasses. [00:49:53] Speaker 01: Did you say that there should be subclasses and here's what they should be and the district court said no, I'm going to do one big class? [00:50:00] Speaker 00: I do not remember whether we affirmatively argued for subclasses, but I know it was discussed at length at the class certification hearing, and we represented that the plaintiffs were the ones who were opposing subclasses. [00:50:10] Speaker 00: And so were this to go back down, to be sure, the parties would litigate over what the content of those subclasses would be. [00:50:16] Speaker 00: But I am representing to you now, we would not dispute the propriety of subclasses if this were to go back down for reconsideration. [00:50:22] Speaker 02: And just to play this out further, there could be a subclass of we need help. [00:50:28] Speaker 02: where people need help contacting the relevant people who can provide us the services. [00:50:36] Speaker 00: If it can meet the Rule 23 requirements of numerosity and all of that, then yes. [00:50:41] Speaker 02: And I also want to just put a little bit of a... And then the question comes to me, how's that really different from what's going to transpire in this class? [00:50:50] Speaker 00: Well, I think what's different is that if you look at the transition assistance services they're looking for, it's not just, I need help filling out paperwork. [00:50:58] Speaker 00: It's everything that runs the gamut from expanding the size of the MFP program, effectively, more effectively using EPD waiver slots. [00:51:05] Speaker 00: What's been asked for here is broad and it's amorphous. [00:51:08] Speaker 00: If we can pin this down to six features. [00:51:10] Speaker 00: I think I agree with you. [00:51:10] Speaker 02: Anything that says do something more effectively is too amorphous for me. [00:51:13] Speaker 00: It's not paper roll fast certification. [00:51:14] Speaker 00: But if we can go back down and say, OK, we need to have [00:51:17] Speaker 00: And upon admission, review of a transition plan and then following up every so month. [00:51:22] Speaker 00: That's one of the categories of transition assistance that the district court identified and the plaintiffs want. [00:51:26] Speaker 00: That could be a subclass. [00:51:27] Speaker 00: But something that just says do better and do better in these multivaried ways. [00:51:31] Speaker 00: Help people that need housing get housing. [00:51:32] Speaker 00: Help people that don't have driver's licenses get licenses so they can apply to different programs. [00:51:35] Speaker 02: I assume you're going to defend on the merits, too, and argue that what's going on now meets the legal requirements. [00:51:40] Speaker 00: Absolutely, Your Honor. [00:51:41] Speaker 00: There are social workers in the nursing homes, which are not district-owned. [00:51:43] Speaker 00: They're privately run. [00:51:44] Speaker 00: But there are social workers there to assist with transition planning. [00:51:47] Speaker 00: And then the district has social workers itself within the Office of Aging and Disability Rights Center, which provide these transition services that assist people with the Money Follows the Person program with getting on the EPD waiver. [00:51:58] Speaker 00: We have a program in place. [00:52:00] Speaker 00: The plaintiffs would rather us do it more effectively. [00:52:03] Speaker 00: But every government program is subject to that. [00:52:05] Speaker 02: I'm getting way ahead of the case, but I'm just curious. [00:52:07] Speaker 02: Do those people who work for DC, do they [00:52:10] Speaker 02: make contact with the people in the nursing facilities, or are they just there as kind of passive recipients of classes? [00:52:17] Speaker 00: My understanding is that they are going out into the community and helping people and assisting with transitions, and indeed have assisted named plaintiffs here. [00:52:24] Speaker 00: So since 2010, there have been 412 nursing home facility residents discharged into the community. [00:52:30] Speaker 00: And I believe that 221 of them had been there for 90 days or over, which is the class population that we're talking about here. [00:52:37] Speaker 04: fact things which I suspect the other side might have a different view on are not sort of relevant to our decision. [00:52:42] Speaker 02: I asked you so you're okay you're permitted to answer because I asked you. [00:52:47] Speaker 02: Well thank you. [00:52:48] Speaker 00: There are merits determinations and yes ultimately if this goes back down either on subclasses or if this goes back down now we have defenses on the merits for why the district has an effective system of transition assistance and why it is working to transition people. [00:53:01] Speaker 04: And the question of whether transition services that they seek, and they don't, all 14 don't have to qualify. [00:53:07] Speaker 04: We just need, I think the case law is one class-worthy issue to have a class action. [00:53:13] Speaker 04: And so the question of whether what they seek is more a unified process than DL was, and more unitary, or people are sort of in flux between these standards, is sort of, I guess, a factual question. [00:53:28] Speaker 04: Is that correct? [00:53:31] Speaker 04: I mean, you say it's like stages like DL. [00:53:32] Speaker 04: They say no. [00:53:34] Speaker 04: And the district court seemed to conclude that transition services, at least as the ones that were identified by the district court, those were a bit more of a compact idea. [00:53:43] Speaker 04: And I don't know what expertise we would have to. [00:53:46] Speaker 00: I don't know if it's a factual question. [00:53:48] Speaker 00: I think this court has to say DL held that when you have discrete multiple services that you're challenging. [00:53:55] Speaker 04: I know that that's the point. [00:53:56] Speaker 04: You say multiple, they say it's a unitary. [00:53:58] Speaker 00: But I think that this court, it's not a factual determination. [00:54:00] Speaker 00: This court only needs to look at the injunction they sought, which is reproduced pages 33 and 34 of our brief, and the transition assistance, I think it was 1246 to 1248 of the district court's opinion, where they list all of these different factors. [00:54:12] Speaker 00: And this court can say, how does that compare to DL? [00:54:14] Speaker 00: In DL, we were looking at four discrete categories. [00:54:16] Speaker 00: and that wasn't sufficient for commonality. [00:54:18] Speaker 00: So what do we do when we have 14 multivariate characteristics that they're asking the district to do better on? [00:54:23] Speaker 00: So I think for that reason, at a minimum, this class needs to go back for a determination of subclasses before it can proceed to expert discovery, summary judgment briefing, liability trial, and ultimately, if liability is found, a determination of remedy. [00:54:35] Speaker 00: So for that reason, this court should exercise its 23F review now, and on the merits, it should vacate the class certification decision. [00:54:41] Speaker 00: Thank you. [00:54:43] Speaker 02: Thanks to both sides for a well-argued case. [00:54:45] Speaker 02: The case is submitted.