[00:00:00] Speaker 01: Case number 19-7057. [00:00:03] Speaker 01: Markel says a felon versus District of Columbia et al. [00:00:08] Speaker 01: Ms. [00:00:08] Speaker 01: Hill for the appellant, Ms. [00:00:10] Speaker 01: Johnson for the appellee. [00:00:15] Speaker 05: Good morning, counsel. [00:00:18] Speaker 01: Good morning. [00:00:29] Speaker 01: Ms. [00:00:29] Speaker 01: Hill, you may start arguing. [00:00:32] Speaker 04: Thank you so much. [00:00:33] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:00:36] Speaker 04: I have requested five minutes for rebuttal. [00:00:39] Speaker 04: My name is Eve Hill, and I represent Markel Seth, the appellant in this matter. [00:00:43] Speaker 04: But for the District of Columbia's refusal to accept responsibility for Mr. Seth's care and custody, Mr. Seth would not be in federal custody today. [00:00:53] Speaker 04: Even now, federal law would require the US [00:00:57] Speaker 04: Bureau of Prisons to release him for community-based treatment in D.C. [00:01:02] Speaker 04: Thus, the district's refusal to uphold its obligations under the ADA, to include Mr. Seth into the program, and to treat him in an integrated setting is the direct cause of his current incarceration. [00:01:14] Speaker 04: The district's refusal is the only barrier to access to community-based services for Mr. Seth, and that barrier must be removed. [00:01:22] Speaker 04: Mr. Seth has waited over three years in federal prison without services. [00:01:26] Speaker 04: mostly in solitary confinement because of his intellectual disability and now at high risk of COVID-19 because of his asthma. [00:01:34] Speaker 04: The district is no more correct in blaming the Bureau of Prisons for DC's own failure to act here than it was in Brown versus DC when it blames the Housing Authority rather than its own lack of transition services for people's inability to leave nursing homes. [00:01:50] Speaker 04: The ADA and Section 504 require the district to provide treatment services to Mr. Seth equally and to do so in the most integrated setting appropriate. [00:02:00] Speaker 04: Failing to do so. [00:02:01] Speaker 05: Can you hear me? [00:02:04] Speaker 05: Yes. [00:02:05] Speaker 05: This is Judge Rodgers. [00:02:09] Speaker 05: What is the accommodation that your clients seek given that the District of Columbia's argument is that [00:02:20] Speaker 05: the statute gives it a discretionary decision. [00:02:28] Speaker 05: And implicitly, it's arguing that it has exercised that discretion not to seek a civil commitment or otherwise act to provide services to your client. [00:02:46] Speaker 04: What Mr. Sess seeks in this case is that the district take care and custody of him in order for him to receive community-based services. [00:02:57] Speaker 04: We don't agree that civil commitment is a prosecutorial dysfunction in many states and in D.C. [00:03:03] Speaker 04: prior to 2018. [00:03:03] Speaker 04: There are mechanisms for voluntary civil commitment as well as third-party civil commitment. [00:03:10] Speaker 05: No, I guess I was clear in my question. [00:03:13] Speaker 05: The District of Columbia says [00:03:15] Speaker 05: It has discretion under the statute, which only speaks of May, not to act. [00:03:27] Speaker 04: That's correct. [00:03:27] Speaker 04: That's what they argue. [00:03:29] Speaker 04: We believe that in most circumstances, the IDRA, the federal IDRA, [00:03:37] Speaker 04: would not require them to undertake custody of Mr. Seth. [00:03:42] Speaker 04: However, CEDA and the ADA work together in sync with IDRA in this case. [00:03:48] Speaker 04: The ADA requires DC to serve Mr. Seth if it is reasonable. [00:03:53] Speaker 04: It is reasonable, as the district itself decided, to civilly commit him pursuant to CEDA, and CEDA permits that, and we believe it is mandatory to do so. [00:04:05] Speaker 05: So let me ask you, Ben, is the district's failure to provide services to your client, which you allege is the butthole cause of his federal commitment, is that sufficient to state an Olmstead claim? [00:04:22] Speaker 05: Listen, it is. [00:04:23] Speaker 05: Sorry. [00:04:26] Speaker 05: Or does the district court need to engage in some sort of proclimate cause analysis? [00:04:32] Speaker 04: No, the failure of DC both before and since Mr. Seth's federal civil commitment, the failure of DC to provide those services is the but for cause of his current federal civil commitment. [00:04:50] Speaker 04: If the federal civil commitment stood in the way of DC taking custody of him, which we don't believe it does, [00:04:59] Speaker 04: They would still be liable for the damages and declaratory relief that Mr. Seth also seeks here. [00:05:06] Speaker 04: But we believe the federal civil commitment in no way stands in that way. [00:05:11] Speaker 04: They do not have prosecutorial discretion, and they only raise prosecutorial discretion in this appeal, never before the district court. [00:05:19] Speaker 04: So that argument is waived here. [00:05:23] Speaker 05: Well, so you think that your allegations are sufficient [00:05:28] Speaker 05: with respect to the but for cause to state an onset claim? [00:05:34] Speaker 04: Yes, we do, Your Honor. [00:05:40] Speaker 04: The remaining arguments that DC has made and that the district court relied on are affirmative defenses as well as factual questions that can't be resolved at the motion to dismiss stage. [00:06:01] Speaker 05: So in a... Yes. [00:06:03] Speaker 05: Your question then that under the ADA and CEDA, which the government's brief says you have now abandoned, but I gather you have not, was the district required to respond to the Attorney General's letter? [00:06:27] Speaker 04: The district had already agreed to seek civil commitment pursuant to CEDA prior to the Attorney General's letter. [00:06:35] Speaker 04: They should have implemented that commitment even prior to the Attorney General's letter, but they should have responded as well. [00:06:46] Speaker 05: Well, not on should have, but were they legal? [00:06:50] Speaker 05: Is it your position that the district was legally obligated to respond? [00:06:57] Speaker 04: Not pursuant to the IDRA, the federal IDRA for the civil commitment, but the district was required to take care and custody of Mr. Seth and provide him services both before that request was even made and in response to and since that request was made. [00:07:20] Speaker 05: So is that a yes answer to my question? [00:07:23] Speaker 04: Yes, Your Honor. [00:07:27] Speaker 05: And so it's the district's failure to respond that it underlies district court's error here? [00:07:38] Speaker 04: No, not entirely. [00:07:42] Speaker 04: The district's failure to provide services to Mr. Seth prior to that request from the federal government was a violation of the ADA, not simply old- I know. [00:07:52] Speaker 05: I'm trying to focus on this. [00:07:55] Speaker 05: that once the Attorney General sent a letter, what was the District of Columbia obligated to do, if anything? [00:08:05] Speaker 04: The District of Columbia was obligated under the ADA to seek to take care and custody of Mr. Seth. [00:08:12] Speaker 05: Well, I'm trying to get a more mundane point. [00:08:17] Speaker 05: The Attorney General writes a letter. [00:08:21] Speaker 05: Was there some obligation [00:08:24] Speaker 05: under federal or local law for the District of Columbia to respond in as much as the federal statute says that there is a preference for state or local division of these services. [00:08:45] Speaker 05: I'm trying to understand the statutory scheme here. [00:08:49] Speaker 05: Certainly. [00:08:50] Speaker 04: The IDRA does not, in the absence of a federal or state obligation, impose an obligation by itself to respond to the federal government's request. [00:09:04] Speaker 04: But that was another opportunity for the district to follow its ADA obligations and offer to take care and custody of him. [00:09:18] Speaker 05: That failure to respond is yet another... Hello, would have to sue the District of Columbia for an answer? [00:09:26] Speaker 04: The federal government... No, not the federal government, but Mr. Seth has his own obligation, has his own rights under the ADA to require D.C. [00:09:36] Speaker 04: to take care and custody of him, either in response to the attorney general's request or on its own initiative. [00:09:45] Speaker 05: What about the district court? [00:09:48] Speaker 05: no comment that there were alternative remedies available to your client? [00:09:56] Speaker 04: There's no... I believe the alternative remedies that she considered were going through the Bureau of Prisons or challenging the federal civil commitment. [00:10:09] Speaker 04: However, the Eastern District of North Carolina stated that this case had already been filed. [00:10:16] Speaker 04: that and that the services that we were looking at that would have required care and custody by D.C. [00:10:24] Speaker 04: and services to D.C. [00:10:26] Speaker 04: were not relevant to the Eastern District of North Carolina's civil commitment decision because they had not been available because D.C. [00:10:33] Speaker 04: did not respond. [00:10:35] Speaker 05: Well, in the government's brief, it notes that the attorney general has authority to enter into contracts for services. [00:10:45] Speaker 05: Why would, sorry for the syntax here, but why wouldn't there be an alternative available to your client to request, in other words, that the federal government pay for these services? [00:11:07] Speaker 04: That's a great question. [00:11:09] Speaker 04: The BOP doesn't offer, in fact, the federal government doesn't have a federal medical system. [00:11:17] Speaker 04: What it does is pay states to develop their own medical system. [00:11:21] Speaker 04: So the federal government has already provided through Medicaid, DC gets 70% of its expenses paid by the federal government to provide these kinds of services. [00:11:33] Speaker 04: If we were to pursue something through the BOP, we would be asking them to create a new system. [00:11:39] Speaker 04: So the most direct way, and the federal government has already paid for these services to be provided to all DC residents, is to seek the District of Columbia to do what it is already getting federal money to do, which it had already committed to do and which it's already totally capable of doing. [00:12:03] Speaker 05: And I suppose one other point, why does the District Court's heavy reliance on the dangerousness finding by the District Court in North Carolina create reversible error here? [00:12:18] Speaker 04: A couple of reasons. [00:12:20] Speaker 04: First, the Eastern District of North Carolina considered dangerousness only without the availability of the services that Mr. Seth is entitled to under D.C. [00:12:33] Speaker 04: So it doesn't address the question of whether he's dangerous. [00:12:38] Speaker 04: Nonetheless, Mr. Seth is not arguing that he doesn't meet the standard of dangerousness for either CEDA or IDRA in the absence of those services, which those don't consider those services. [00:12:53] Speaker 04: And so the Eastern District of North Carolina went ahead and [00:12:58] Speaker 04: said that because DC had failed to respond, those services were not available and not before the court. [00:13:05] Speaker 04: Those services are exactly at issue in this case. [00:13:07] Speaker 04: So those two cases were not dealing with the same questions. [00:13:14] Speaker 04: And then dangerousness is a fact question, as well as an affirmative defense of direct threat. [00:13:20] Speaker 04: And the burden of alleging and proving that is on the district. [00:13:34] Speaker 00: I have a couple of questions, Judge Garland. [00:13:39] Speaker 00: In order to implement what you want here, does the District of Columbia first have to commit, Mr. Seth? [00:13:53] Speaker 04: Not necessarily. [00:13:54] Speaker 04: What they have to do is take care and custody of Mr. Seth to satisfy the IDRA. [00:14:01] Speaker 00: They have to take custody, right? [00:14:04] Speaker 04: Care and custody, yes. [00:14:05] Speaker 00: Well, okay, but the point I'm focusing on is the custody. [00:14:09] Speaker 00: Doesn't that require a D.C. [00:14:12] Speaker 00: commitment? [00:14:14] Speaker 04: Not as far as we know. [00:14:16] Speaker 04: The district had determined that commitment through CEDA was an appropriate and reasonable measure to do that. [00:14:23] Speaker 04: Other states, as described in the amici Disability Services Experts cases, amicus brief [00:14:30] Speaker 04: do it through a variety of ways, including just simply supervised services, which are also available in D.C. [00:14:37] Speaker 00: Well, hold on for a second. [00:14:40] Speaker 00: So the federal statute requires the taking of custody, correct? [00:14:46] Speaker 00: Yes. [00:14:47] Speaker 00: And so the District of Columbia would have to take custody. [00:14:51] Speaker 00: That means Mr. Seth would not be allowed to leave unless the various requirements of the statute [00:14:58] Speaker 00: of the district statute are fulfilled, but he has to take custody. [00:15:02] Speaker 00: This isn't like voluntary treatment, right? [00:15:06] Speaker 04: I believe that's correct. [00:15:07] Speaker 04: They have to take responsibility for ensuring his treatment. [00:15:10] Speaker 00: Oh, not responsibility, custody. [00:15:13] Speaker 00: That is, they have to assure that he's under their control. [00:15:18] Speaker 00: Under the federal statute, isn't that what the word custody means? [00:15:22] Speaker 04: I'm not sure, but other states manage to do this through both civil commitment and through other ways. [00:15:28] Speaker 00: But yes, if... I'm asking the meaning of the federal statute. [00:15:35] Speaker 00: That's all. [00:15:36] Speaker 00: I'm trying to figure out the relationships between these different... Right. [00:15:40] Speaker 04: I understand. [00:15:41] Speaker 04: I have not been able to find any cases that define the word custody. [00:15:46] Speaker 04: So I believe that remains a fact question. [00:15:50] Speaker 00: That's not a question. [00:15:51] Speaker 00: That's a law question. [00:15:52] Speaker 00: So imagine, assume for the purposes of the discussion that custody means what we normally think of custody. [00:15:59] Speaker 00: That means they're involuntarily under the control of either BOP in the federal system or some entity in the District of Columbia. [00:16:14] Speaker 00: So your Olmstead claim amount to a claim that the ADA is a cause of action to require civil commitment in the District of Columbia by the District of Columbia? [00:16:27] Speaker 00: Is that what your Olmstead claim is? [00:16:30] Speaker 04: Well, our claim is that the District of Columbia's failure to provide integrated services has led to his institutionalization. [00:16:38] Speaker 04: and that they have a reasonable means to address that. [00:16:42] Speaker 04: One of those is CEDA. [00:16:43] Speaker 04: There may be others, and we would be happy to litigate what those others are, but the district has pointed to none. [00:16:52] Speaker 00: Well, there has to... I'm assuming that there has to be civil commitment of some kind. [00:16:58] Speaker 00: So the only way that happens is if the ADA requires the district to civilly commit Mr. Seth. [00:17:04] Speaker 00: Is that wrong or right? [00:17:07] Speaker 04: If that presumption is true, then yes. [00:17:11] Speaker 00: Okay. [00:17:14] Speaker 05: So could I just be clear on that point? [00:17:17] Speaker 05: Let's assume hypothetical situation where your client is not under a federal civil commitment order and he is just a resident of the District of Columbia, but he needs these services. [00:17:35] Speaker 05: Are you [00:17:37] Speaker 05: answering to Judge Garland's question that the only way the District of Columbia can lawfully provide those services is civilly commitment, civilly commit him because in the earlier discussion with the District of Columbia when it was proceeding to develop a plan for your client [00:18:06] Speaker 05: There was discussion that when the District of Columbia had its plan completed, then it would civilly commit him or it would petition for civil commitment. [00:18:23] Speaker 05: Is that not correct? [00:18:25] Speaker 04: That is correct that that was their proposal. [00:18:29] Speaker 04: At the point before Mr. Seth was federally civilly committed, there was no obligation for DC to take care and custody of him in order to provide him services. [00:18:38] Speaker 04: In fact, most people who are not federally civilly committed can access, can and are eligible and are provided those services without any kind of formal legal custody from the district. [00:18:52] Speaker 04: The only thing, but in that case, the district prior to federal civil commitment said they would be comfortable providing the services if he were civilly committed, and Mr. Seth agreed to that. [00:19:04] Speaker 04: Now that he has been federally civilly committed because of the district's own failure to act, they have to take care and custody, whatever the meaning of that is, through the IDRA. [00:19:17] Speaker 04: And if that is civil commitment, having already determined that that was reasonable, [00:19:22] Speaker 04: It continues to be reasonable now. [00:19:33] Speaker 00: Is there any reason why the Department of Justice or the United States is not equally bound by the ADA and the Rehabilitation Act with respect to [00:19:54] Speaker 04: The ADA doesn't cover the federal government, but the Rehabilitation Act does. [00:20:03] Speaker 04: The provisions or the regulations for the Rehabilitation Act applicable to the federal government are somewhat different. [00:20:11] Speaker 00: But in the particular... I thought the regulations say they're to be treated the same. [00:20:15] Speaker 00: The ADA and the Rehabilitation Act claims are the same. [00:20:19] Speaker 04: Yeah, there are two different sets of regulations for the Rehabilitation Act. [00:20:24] Speaker 04: One is for federally conducted activities and one is for federally funded activities. [00:20:29] Speaker 04: We're in the ones that are federally funded. [00:20:31] Speaker 04: But that's not a significant difference here. [00:20:34] Speaker 04: The Department of Justice and Bureau of Prison do have obligations under Section 504. [00:20:40] Speaker 04: But in this particular case, the federal government doesn't have a federal [00:20:45] Speaker 04: healthcare system. [00:20:47] Speaker 04: Instead, what it does is provide funding to the states to provide those healthcare systems. [00:20:52] Speaker 04: So, in order to get the BOP or the Justice Department to be able to serve Mr. Seth in an integrated setting, they would have to create a whole new system? [00:21:03] Speaker 00: Well, is your position under the ADA, they have to? [00:21:07] Speaker 00: Under the... Isn't your position on their own stead [00:21:12] Speaker 00: and the ADA that they have to put him in the least restrictive facility possible. [00:21:23] Speaker 04: Most courts addressing the issue of whether an entity has to create a new set of services or a new system have held that that's not a reasonable modification. [00:21:33] Speaker 04: So it's entirely possible that the federal government would not have to create a healthcare system in order to address Mr. Seth's needs. [00:21:41] Speaker 00: But would have to contract with somebody to do it. [00:21:45] Speaker 04: It already has contracted with the district and the other states to do that. [00:21:51] Speaker 00: Or a private entity. [00:21:57] Speaker ?: Okay. [00:21:57] Speaker 04: Or a private entity. [00:22:00] Speaker 04: I'm sorry. [00:22:00] Speaker 04: I couldn't hear you. [00:22:01] Speaker 00: I'm sorry. [00:22:02] Speaker 00: Or a private entity. [00:22:05] Speaker 04: Possibly, but having already contracted with the state to provide the entire healthcare system, having the state have that system already available and able reasonably to treat Mr. Seth, that seems like an unnecessary burden to force the BOP to undertake in this particular instance. [00:22:35] Speaker 00: You said that you had not dropped your CEDA claim. [00:22:39] Speaker 00: I was a little unsure about that. [00:22:41] Speaker 00: You've dropped the claim that CEDA itself provides a private right of action or not? [00:22:46] Speaker 04: Oh, we have. [00:22:48] Speaker 04: But that was the, I raised the CEDA being mandatory and therefore not subject to prosecutorial discretion. [00:22:57] Speaker 04: because the district court based her decision, based its decision on the lack of a private right of action. [00:23:04] Speaker 04: We have not appealed that determination regarding the lack of a private right of action because the private right of action under the ADA in Section 504 addresses that. [00:23:14] Speaker 04: We do believe, continue to believe that CEDA is mandatory and does provide substantive guidelines that allow this court or the district court to review any [00:23:26] Speaker 04: prosecutorial decision under CEDA. [00:23:29] Speaker 00: Okay, one more question for you. [00:23:34] Speaker 00: With respect to the argument about the disparate treatment of mental illness and intellectual disability, I assume that the DC code provisions on these two, the APA, [00:23:56] Speaker 04: I think you broke up a little bit, but I'm taking the question as, is it our position that the two code provisions, the CEDA provisions for civil commitment and the Urban Act provisions for civil commitment of people with mental illness violate the ADA? [00:24:14] Speaker 04: I would say this is not a facial challenge to CEDA and the Urban Act. [00:24:18] Speaker 04: I'm saying what we're saying is an individual case. [00:24:22] Speaker 04: And in the particular instance of Mr. Seth, [00:24:26] Speaker 04: that the way the district is applying CEDA, in fact, the way the district is not implementing CEDA at all for people with intellectual disabilities, and specifically Mr. Seth, is a violation of the ADA. [00:24:42] Speaker 00: Well, you're not challenging the district's determination in the two code sections? [00:24:48] Speaker 04: No, not at all. [00:24:49] Speaker 00: To treat the two differently? [00:24:51] Speaker 04: No, we are not. [00:24:53] Speaker 00: Thank you. [00:25:05] Speaker 05: All right, we'll hear from the District of Columbia. [00:25:12] Speaker 02: Good morning. [00:25:13] Speaker 02: May it please the court, Holly Johnson for the District of Columbia. [00:25:16] Speaker 02: I'd like to start with the question that has been absorbing the judges regarding whether the Federal Bureau of Prisons could provide a remedy. [00:25:27] Speaker 02: I think that this issue is dispositive of the case, and I'd like to take a moment to explain the difference between conditional release under the IDRA [00:25:35] Speaker 02: and civil commitment under CEDA because I believe Mr. Seth is treating the two as one and the same. [00:25:41] Speaker 02: First of all, the district has never rejected the idea of accepting Mr. Seth under a contract with the United States under conditional release. [00:25:51] Speaker 02: The district believes that is much safer than civil commitment. [00:25:55] Speaker 02: And here is why. [00:25:56] Speaker 02: The District of Columbia has no lockup facilities. [00:26:00] Speaker 02: If the district assumes custody via civil commitment, that's the only way to assume custody over Mr. Seth, then the United States will let go of its jurisdiction over Mr. Seth. [00:26:12] Speaker 02: And if Mr. Seth then breaks the rules, if he consumes drugs, if he looks at child pornography, he starts having contact with children again, the district cannot lock him up. [00:26:23] Speaker 02: It doesn't have a facility to do so. [00:26:25] Speaker 02: Moreover, and this is really important, [00:26:27] Speaker 02: In the proffered amended complaint, Mr. Seth alleges that the district could place Mr. Seth outside of the district in a lockup facility. [00:26:37] Speaker 02: Now, we dispute that as a matter of fact, but given where we are in this procedure, even if that is so, civil commitment under CEDA is so much more dangerous. [00:26:48] Speaker 02: Because under the IDRA, under a conditional release order, [00:26:54] Speaker 02: The United States has arrest authority as soon as it has probable cause that a person has failed to comply with the conditions of release. [00:27:02] Speaker 02: And if you look at some of the orders, and I cited a bunch of them in my brief, if you look at some of the orders, you can see that every one of these conditional release orders includes detailed requirements for behavior and checking in with a parole officer. [00:27:16] Speaker 02: Now, if Mr. Seth violated those conditions under civil commitment under CEDA, what DDS would have to do is go to the family court and seek an order transferring Mr. Seth to another location, and by then he may well have absconded. [00:27:30] Speaker 02: So it is not the same to say that conditional release under the IDRA, which has never been discussed, is the same thing. [00:27:38] Speaker 02: This is fatal to Mr. Seth's reasonable accommodation claim because the law, the regulations specifically state that a government must offer an accommodation only if it is necessary to avoid discrimination on the basis of disability. [00:27:54] Speaker 02: That's in the regulations. [00:27:56] Speaker 02: Now here, the alleged discrimination is unnecessary institutionalization. [00:28:01] Speaker 02: And it is not necessary for the district to assume legal custody over Mr. Seth. [00:28:07] Speaker 02: and remove him from federal custody for him to receive this release. [00:28:12] Speaker 02: If, as he alleges, he can be safely released to the community, the United States has to give him that relief. [00:28:21] Speaker 05: Well, I don't understand that argument then. [00:28:24] Speaker 05: The federal government has civilly committed Mr. Seth. [00:28:28] Speaker 05: Is that correct? [00:28:32] Speaker 03: Yes. [00:28:35] Speaker 05: So we're dealing with that situation. [00:28:38] Speaker 02: Yes. [00:28:39] Speaker 02: So let me explain how the statute works. [00:28:41] Speaker 02: Perhaps that will help. [00:28:43] Speaker 02: The initial civil commitment that the Eastern District of North Carolina ordered does not contemplate anything other than institutionalization. [00:28:54] Speaker 02: But at any time after that hospitalization, if the director of the hospital thinks that he can be safely treated in the community, it has to release him to the community. [00:29:06] Speaker 05: Now, what I want to understand is the Attorney General wrote to the District of Columbia and you said something like, well, if services existed in the District of Columbia or that the District of Columbia would provide, then, and maybe I misunderstood your argument, he would be released under the IDRA. [00:29:37] Speaker 02: No, and perhaps I misspoke. [00:29:40] Speaker 02: The United States would release Mr. Sess to the district if the district successfully committed Mr. Sess under CEDA. [00:29:51] Speaker 02: Those are the only circumstances. [00:29:53] Speaker 05: It's not about services. [00:29:55] Speaker 05: How can the District of Columbia do that when he is under a federal civil commitment order? [00:30:04] Speaker 02: I think the way it would work [00:30:05] Speaker 02: And as you know, we believe this would be greatly dangerous, but I think the way it would work is that Mr. Seth would remain under the custody, the legal custody of the United States while civil commitment proceedings were going on in the District of Columbia, and then if those were successful, custody would transfer. [00:30:27] Speaker 02: Now, of course, we have concerns as to whether he can even be committed under CEDA, but based on the complaint, [00:30:36] Speaker 02: certainly a possibility that, but the United States would retain, I think this is what you're asking, the United States would retain custody until civil commitment was secured in the district. [00:30:51] Speaker 05: So your view of the statutory scheme is that for Mr. Seth to obtain the local services he seeks, [00:31:05] Speaker 05: He should what? [00:31:08] Speaker 05: File what? [00:31:12] Speaker 02: No, I mean, okay. [00:31:14] Speaker 02: So if what he wants is to be treated in the district in a community-based setting, he can petition or file some sort of a motion, I don't know the exact procedure, in the Eastern District of North Carolina for conditional release. [00:31:32] Speaker 02: And the district is willing to consider, of course, we would have to be assured about safety and stuff like that. [00:31:38] Speaker 05: But the district is willing to consider. [00:31:39] Speaker 05: Well, I thought that the Houston district of North Carolina said that the matter of services was not a matter it was considering. [00:31:52] Speaker 05: Yes, and I can explain that. [00:31:54] Speaker 05: So why the heck did we open this? [00:31:56] Speaker 05: So I can explain that. [00:31:57] Speaker 05: But what I'm concerned about, just so you're clear, [00:32:00] Speaker 05: is there seems to be sort of a circular argument here. [00:32:05] Speaker 05: And the problem is, time's passing, and Mr. Seth, at least according to the allegations we have, is not receiving any services. [00:32:16] Speaker 05: All right, he's locked up at least 22 hours a day in isolation. [00:32:24] Speaker 05: Because everybody's concerned about his inability to follow rules and regulations, and he would be a danger. [00:32:31] Speaker 05: So how do we break this circle? [00:32:34] Speaker 05: And that's what I'm trying to stand. [00:32:36] Speaker 05: And I thought the federal statute had in mind that the federal government really wants the state, in which I'm including the District of Columbia for purposes of argument, [00:32:53] Speaker 05: to handle these matters and provide the services. [00:32:58] Speaker 05: And indeed, it's already paid for them. [00:33:01] Speaker 05: And if the federal government in this dissent case was so concerned about it, it could even contract for local services. [00:33:10] Speaker 05: But it hasn't done any of that. [00:33:15] Speaker 05: The most direct way to do this is to sue the District of Columbia. [00:33:21] Speaker 05: But I'm not clear, even if it wins, where that gets it, except to have another bit of litigation. [00:33:33] Speaker 05: And I thought the attorney general's letter was a way to try to break this vicious cycle and implement the federal statute. [00:33:47] Speaker 02: So I think that I can clear up some of these questions, if you'll bear with me. [00:33:51] Speaker 02: I'm going to start by explaining the proceedings in the Eastern District of North Carolina, because I understand that they appear circular, but they are not actually circular. [00:34:01] Speaker 05: No, I don't think they appear circular. [00:34:03] Speaker 05: I think where we are now appears circular. [00:34:06] Speaker 05: The Eastern District didn't have anything before it. [00:34:10] Speaker 05: All it had was evidence of dangerousness. [00:34:12] Speaker 05: So it found dangerousness, all right? [00:34:15] Speaker 05: Yes. [00:34:16] Speaker 05: Mr. Seth filed his complaint. [00:34:19] Speaker 05: He had not been committed and there had been no finding of dangerousness. [00:34:24] Speaker 05: Is that right? [00:34:25] Speaker 02: So there had been no legal finding of dangerous. [00:34:28] Speaker 02: There had been a certificate of dangerousness filed. [00:34:31] Speaker 02: But I would like to explain because I do think this will answer your question regarding what happens in the Eastern District of North Carolina. [00:34:37] Speaker 02: The judge there was right at the initial civil commitment proceeding to say that whether the district could provide services was irrelevant because the district was not taking custody. [00:34:50] Speaker 02: Now, there's a difference between taking custody, which would require the federal government to let go of custody and have commitment under CEDA. [00:34:58] Speaker 02: There's a difference between that [00:34:59] Speaker 02: and allowing some sort of conditional release where he remains in the custody of the federal government. [00:35:06] Speaker 02: What happens is after that initial order, the initial order of commitment, at that point the question of whether conditional release is appropriate becomes ripe. [00:35:16] Speaker 02: And had Mr. Seth at any time after that civil commitment raised the question with the Eastern District of North Carolina [00:35:24] Speaker 02: about whether he could be safely treated in the community, that judge would have had to consider not just the services the district could provide, but the services that any legal entity could provide, any private entity could provide. [00:35:39] Speaker 02: And the district court a year ago urged Mr. Seth to do this. [00:35:43] Speaker 02: In his order of dismissal, there's that long footnote [00:35:46] Speaker 02: on, I believe it's on JA-40, there's a long footnote where he explains, go to the Eastern District of North Carolina and seek some relief. [00:35:54] Speaker 02: And Mr. Seth has filed nothing in that jurisdiction. [00:35:58] Speaker 02: He's hoping to force the district to pull him completely out of federal custody. [00:36:03] Speaker 02: And as I explained, having him out of federal custody is incredibly dangerous. [00:36:07] Speaker 02: He could easily abscond and return to hurting children in the District of Columbia. [00:36:14] Speaker 02: So I hope that answers your question. [00:36:16] Speaker 02: We're not looking at a circular, the United States cannot turn around and then say, well, if the district won't assume custody, we're not going to conditionally release him. [00:36:24] Speaker 02: This is not a catch-22. [00:36:26] Speaker 02: The district does not want to assume custody over Mr. Seth because that would be incredibly dangerous for the public. [00:36:33] Speaker 02: But the district will consider providing him services under a conditional release order because that would be less dangerous because the United States could then put him in a lockup facility if he doesn't comply. [00:36:50] Speaker 02: I also would like to address not just the question of whether an accommodation is necessary, although I think that disposes of the entire case, but whether the district is even a proper defendant under any claim under Olmstead and the integration mandate. [00:37:06] Speaker 02: There's only two types of Olmstead cases. [00:37:09] Speaker 02: There are the type like this where a person is forcibly detained via civil commitment, and there are cases where an individual is forced to self-institutionalize [00:37:20] Speaker 02: because that's the only place they can get the care they need to survive. [00:37:23] Speaker 02: And the district has done neither of these things. [00:37:25] Speaker 02: The district is not the entity that has forced Mr. Seth into commitment. [00:37:32] Speaker 02: And so I want to talk about Olmstead itself. [00:37:35] Speaker 02: I think this is important because the elements of Olmstead follow the question presented to the court. [00:37:42] Speaker 02: And the question presented itself assumes custody. [00:37:45] Speaker 02: In the first paragraph of the case, the question presented is, [00:37:49] Speaker 02: whether the ADA may require placement of persons with mental disabilities in community settings. [00:37:56] Speaker 02: And so there is no case that Mr. Seth has cited or that I've been able to find in which the Olmstead mandate applied to a government that neither had custody over an individual nor was denying it services and therefore forcing the person to self-institutionalize. [00:38:16] Speaker 02: And Mr. Sess repeatedly says the district is denying him services other people get, but that is simply not so. [00:38:24] Speaker 02: Mr. Sess has been found eligible to receive services in the district. [00:38:28] Speaker 02: He's just not here to get them. [00:38:31] Speaker 02: And there's no authority indicating that helping a person return to the district is a service to which any individual is entitled. [00:38:39] Speaker 02: I also want to address with the court's indulgence [00:38:42] Speaker 02: The question of forfeiture, because Mr. Seth keeps arguing that we have forfeited these key arguments, and this is also not so. [00:38:50] Speaker 02: With regard to suing the wrong defendant, on JA204, the district argued... There was limited to your argument about discretion, that's all. [00:39:03] Speaker 02: Oh, with regard to that, no, we also did not forfeit the prosecutorial discretion question. [00:39:08] Speaker 02: I'm looking for my notes. [00:39:15] Speaker 02: I mean, for the most part, those came up under the rubric of the CEDA argument because that's where the argument was. [00:39:21] Speaker 02: But it was certainly there. [00:39:23] Speaker 02: At JA-252, the district argued that it had discretion under CEDA and had no obligation to commit [00:39:31] Speaker 02: And at JA-255, we argued that there's no allegation of accommodation that is reasonable. [00:39:38] Speaker 02: And again, this is also something that the district court passed on. [00:39:41] Speaker 02: The district court talked about how this was not something that was mandatory. [00:39:46] Speaker 02: Now, I can understand that there are some matters that where an agency would normally have discretion where the ADA could require the district to step in, but this is simply not that type of case. [00:39:56] Speaker 02: As I said, it's not an accommodation that is necessary, and it's also not [00:40:02] Speaker 02: something that is the type of accommodation that the district would ever offer. [00:40:06] Speaker 02: For example, if a person with a disability flew out to California but only got a one-way ticket and they needed a ticket back home in order to receive services in the district, it would not be an accommodation to return them to the district. [00:40:20] Speaker 02: Or, for example, if someone was jailed in another state, a person with disabilities gets jailed in another state and needs bonds to be posted, [00:40:28] Speaker 02: so that they can come back to the district and receive services while awaiting trial. [00:40:32] Speaker 02: That is not something that we would say that the district is responsible for doing. [00:40:36] Speaker 02: And so these arguments have not been forfeited. [00:40:39] Speaker 02: And we have made it very clear that under the Olmstead claim, it's the wrong defendant. [00:40:47] Speaker 02: And even if this is categorized under the reasonable accommodation rubric, it simply isn't necessary. [00:40:53] Speaker 02: It's incredibly dangerous [00:40:55] Speaker 02: to suggest that the district should have to assume custody when there's a much safer way that if the allegations in the complaint are true and Mr. Seth can safely be served in the community, the United States legally has to provide him the same relief. [00:41:10] Speaker 05: So let me ask you if you're in, where is Mr. Seth physically now? [00:41:18] Speaker 02: I believe he's in Massachusetts. [00:41:20] Speaker 02: He's at FMC Devons. [00:41:26] Speaker 05: So if he files in the Eastern District of North Carolina a motion for conditional release, as I understand the statutory scheme, he would have to present the district court with a program of services [00:41:54] Speaker 05: that the District of Columbia has indicated it would provide to him that would address the dangerousness concern, or that he has developed a program based on private services, predemitting for a moment who pays. [00:42:25] Speaker 05: Before the Eastern District Court judge, a grant conditional release, is that correct? [00:42:34] Speaker 02: I don't think that's entirely correct. [00:42:36] Speaker 02: Those are certainly two ways... What would the District Court grant conditional release? [00:42:46] Speaker 02: I missed the first part of that question, I'm sorry, but I think that I understand the question. [00:42:51] Speaker 02: The district court itself can develop the plan in conjunction with Mr. Seth. [00:42:58] Speaker 02: I don't imagine that all of the individuals who have obtained conditional release, and there are many, there are lots of orders that you can find on Lexis in the district court filings, there are lots of conditional release orders, and I don't get the sense that every one of those was developed by the [00:43:16] Speaker 02: person with disabilities themselves. [00:43:18] Speaker 02: But certainly he would file something in the district court saying, I can be safely treated in the community. [00:43:24] Speaker 02: And then that would be a question of fact in the district court. [00:43:28] Speaker 02: And the district court would look at the different options. [00:43:30] Speaker 02: It would look at the different types of plans. [00:43:33] Speaker 02: And like I said, there are a lot of them published on Lexis that you can look at. [00:43:37] Speaker 05: My question is yes, that either [00:43:42] Speaker 05: Mr. Seth has to come up with this plan, or you say the district court could come up with it. [00:43:47] Speaker 05: But as a practical matter in litigation, we all know that the moving party has to present something to the district court. [00:43:57] Speaker 05: And in a conditional release, it's going to be a moving party that has at least the initial burden of demonstrating to the district court that there's some reason even to consider conditional release. [00:44:11] Speaker 02: I'm not going to speak as to who is the moving party and who bears the burden. [00:44:15] Speaker 02: But yes, at the end they would have to come up with a plan. [00:44:19] Speaker 02: I don't know who bears the burden. [00:44:21] Speaker 05: Dealing with what you've been telling me this morning is that Mr. Seth could go to the Eastern District of North Carolina and seek conditional release. [00:44:34] Speaker 05: Yes, he can do that. [00:44:36] Speaker 05: Yes. [00:44:37] Speaker 05: I'm only the moving party at this point. [00:44:41] Speaker 05: And so he has to have some type of program. [00:44:45] Speaker 05: And what he has now, as I understand it, is the District of Columbia is refusing to even answer the Attorney General's letter or say, if you file and go to the Eastern District of North Carolina, we will support conditional release. [00:45:12] Speaker 05: in light of this program. [00:45:15] Speaker 02: Okay. [00:45:15] Speaker 02: I understand your question. [00:45:17] Speaker 02: So I have three answers. [00:45:19] Speaker 02: And if you'll bear with me, number one, Mr. Seth doesn't have to be the moving party because there are also independent obligations under CEDA for the director to recertify the need to continue commitment. [00:45:33] Speaker 05: But we're going to leave that aside and let's address the Bureau of Prisons. [00:45:37] Speaker 02: Yes, the director of the facility. [00:45:39] Speaker 05: Yes, and Sue has been telling us repeatedly this morning that there is so much dangerousness involved. [00:45:45] Speaker 05: I don't see the director being the moving party here. [00:45:48] Speaker 05: Absolutely. [00:45:52] Speaker 02: I just wanted to clarify that, but let me answer your question as to Mr. Seth moving. [00:45:55] Speaker 02: The United States has never asked the district to consider any sort of placement plan that would involve conditional release, and that's very different [00:46:06] Speaker 02: from a blanket letter saying, will you assume custody over this individual? [00:46:12] Speaker 02: Is the United States letter here? [00:46:15] Speaker 02: I'm sorry, can you repeat that? [00:46:17] Speaker 02: Is that the nature of the Attorney General's letter here? [00:46:21] Speaker 02: Yes. [00:46:22] Speaker 02: Yes. [00:46:22] Speaker 02: I mean, there's also questions of fact, because the district didn't receive the letter until after commitment was final. [00:46:28] Speaker 02: But that's beside the point in the complaint. [00:46:32] Speaker 05: How do we bring this to some sort of [00:46:37] Speaker 05: resolution. [00:46:39] Speaker 05: And the district thought, since the federal government's already paid 70% of the funding for this, and doesn't want to set up its own independent operation, that let's get the district to agree to a program. [00:46:53] Speaker 05: And the district won't agree to that. [00:46:56] Speaker 05: And until that happened, Mr. Sadler, since you say wealthy, [00:47:03] Speaker 05: can't afford to come up with a program on his own, and there's no showing of that. [00:47:10] Speaker 05: So I think I can, how you, how the District of Columbia sees the path in what I think everybody would say, isn't on the district court's end, is a troubling situation. [00:47:29] Speaker 02: Yes, and I am happy to address that. [00:47:32] Speaker 02: Yes, the District of Columbia is interested in opening a discussion regarding conditional release that would involve Mr. Sess being returned to the District of Columbia. [00:47:43] Speaker 02: This isn't about money. [00:47:44] Speaker 02: This is about who retains custody. [00:47:46] Speaker 05: Now, Mr. Sess has some... Can I just ask, though, has that been put in writing to counsel for Mr. Sess? [00:47:58] Speaker 05: No, because we can't make... First time I've heard it. [00:48:02] Speaker 02: Well, I mean, we indicated it in our brief, and we certainly have talked about receiving relief from the district court, but I can tell you right now that the district is interested in entering into those discussions. [00:48:13] Speaker 02: Now, there's a lot that has to be done that we would need assurances of. [00:48:17] Speaker 02: If Mr. Seth cannot be safely treated in the community, obviously, we would not be able to come up with a plan for conditional release. [00:48:25] Speaker 05: But the district is very helpful. [00:48:27] Speaker 05: But can we just deal with this case where the two plans that have come up according to the evidence that was presented to the district court here understood the dangerousness without services. [00:48:42] Speaker 05: But they thought these plans provided services that would address that concern. [00:48:52] Speaker 02: So can we just deal with that? [00:48:55] Speaker 02: Yes. [00:48:56] Speaker 02: It is entirely possible. [00:48:57] Speaker 05: And so according to the pleadings here, there have been two plans. [00:49:09] Speaker 02: And so what happens next? [00:49:12] Speaker 02: So there have been two plans. [00:49:14] Speaker 02: They're both fairly old, but they might still be good plans. [00:49:18] Speaker 02: And those would be a great starting point. [00:49:20] Speaker 02: And if indeed one of those plans is still viable, [00:49:25] Speaker 02: given if there would have to be updated assessments. [00:49:28] Speaker 02: I mean, he has been in federal custody for a while, and we have, in the meantime, learned... I don't understand. [00:49:34] Speaker 05: Are we talking about discussions, council to council? [00:49:40] Speaker 05: No, I don't... No. [00:49:41] Speaker 05: That was done by suing the District of Columbia, saying, you had a plan, you agreed to move forward, you changed your mind, you have this obligation. [00:49:53] Speaker 05: And now you're talking about the district is happy to enter into discussion. [00:49:57] Speaker 02: Regarding conditional release, and that has never been something that Mr. Seth has entertained with us. [00:50:05] Speaker 02: Mr. Seth has insisted that the district has to assume custody. [00:50:08] Speaker 02: And if the district assumes custody, it cannot protect the public from Mr. Seth. [00:50:16] Speaker 02: The district is, as I said, and I'm telling you this now, happy to address that. [00:50:20] Speaker 02: The conversation would be between DDS itself. [00:50:24] Speaker 02: It would not involve appellate counsel. [00:50:25] Speaker 02: It would not involve trial counsel. [00:50:27] Speaker 02: We don't want... We don't think the ADA has anything to do with this. [00:50:31] Speaker 02: We don't think we have any obligations under the ADA. [00:50:34] Speaker 02: But we would like... I'm sorry? [00:50:40] Speaker 05: You said discussions between DDS and... [00:50:43] Speaker 05: And who's the other party? [00:50:44] Speaker 02: I'm assuming Mr. Seth's attorneys. [00:50:46] Speaker 02: And I'm assuming also the United States. [00:50:49] Speaker 02: I mean, most of these conditional release plans are not disputed in the district court. [00:50:56] Speaker 02: Most of these come up as a result of conversations between like sort of like a plea agreement. [00:51:01] Speaker 02: There's a conditional release agreement where everyone works out a plan and then they present it to the district court. [00:51:09] Speaker 02: So the people that I'm assuming would be involved in this discussion would be DDS, and DDS is counsel, it's direct counsel, but the director of DDS, and Mr. Seth's attorney, and the US attorney who is handling his ongoing civil commitment proceedings in the Eastern District of North Carolina. [00:51:31] Speaker 02: And I think that, assuming that it is true that he can be treated safely in the community, I think that it could work. [00:51:38] Speaker 02: But I don't think the right vehicle for this is to sue us under the ADA and accuse the district of discrimination because there's been no evidence of discrimination. [00:51:49] Speaker 02: The district didn't do anything to Mr. Seth. [00:51:52] Speaker 02: It didn't place him in this institution. [00:51:54] Speaker 02: And all it has done is said that the district does not itself have the capacity to safely assume custody over him. [00:52:01] Speaker 02: I will also note that even if the district was refusing to have anything to do [00:52:07] Speaker 02: with a conditional release order, Mr. Seth could easily go directly to the private entity. [00:52:14] Speaker 02: He could go directly to this holistic services and ask them to create a plan and then they could present that to the United States. [00:52:21] Speaker 02: The District of Columbia doesn't need to be involved in this. [00:52:23] Speaker 02: We're happy to be involved in it. [00:52:26] Speaker 02: They don't need us for this. [00:52:28] Speaker 02: And this is where we get down to the fact that he's trying to squeeze [00:52:31] Speaker 02: something that does not fit into the ADA under a reasonable accommodation claim when it is not necessary for the district to be involved at all. [00:52:45] Speaker 02: I haven't been listening for chimes, but I imagine I have far exceeded my time. [00:52:51] Speaker 02: So I would leave the court just with two notions. [00:52:56] Speaker 02: Number one, the district is not the right defendant here. [00:52:58] Speaker 02: The United States is. [00:53:00] Speaker 02: And number two, that even if this were to fall under a claim against the district under the ADA, Mr. Sess has not alleged an accommodation that is necessary for him to receive the release he seeks. [00:53:19] Speaker 05: Thank you, counsel. [00:53:21] Speaker 05: Thank you for taking the time to answer questions that took you beyond your time. [00:53:32] Speaker 04: So this is Eve Hill. [00:53:34] Speaker 04: I would like to respond just to a couple of things and answer any further questions if you'd like. [00:53:38] Speaker 05: Oh, Council for Appellant. [00:53:40] Speaker 04: Yeah. [00:53:43] Speaker 04: There were a lot of facts in Ms. [00:53:46] Speaker 04: Johnson's discussion, like the fact that DC has no lock-up facility. [00:53:52] Speaker 05: Another one that isn't... May I just interrupt here for one moment? [00:53:57] Speaker 05: Yes. [00:53:57] Speaker 05: I am connected according to [00:54:01] Speaker 05: my computer here. [00:54:04] Speaker 05: So I gather that... Can you hear me? [00:54:09] Speaker 05: Yes. [00:54:13] Speaker 05: Good. [00:54:14] Speaker 05: Please carry on. [00:54:16] Speaker 04: Okay. [00:54:17] Speaker 04: So there are a lot of facts in Ms. [00:54:19] Speaker 04: Johnson's presentation. [00:54:21] Speaker 04: And I think that emphasizes the fact that the dangerousness argument that they're making is a fact question. [00:54:27] Speaker 04: as well as an affirmative defense. [00:54:29] Speaker 04: There are also some of them I simply have to would disagree with as a factual matter. [00:54:35] Speaker 04: DC does have lockup facilities including St. [00:54:38] Speaker 04: Elizabeth's and that has sent people to out-of-state lock facilities. [00:54:44] Speaker 04: So that's a fact issue. [00:54:45] Speaker 04: We'd be happy to litigate that. [00:54:48] Speaker 05: And then the... I agree. [00:54:51] Speaker 05: I just decided not to even ask about that. [00:54:54] Speaker 05: I knew it was wrong, but I was trying to get [00:54:57] Speaker 05: to the heart of this. [00:54:57] Speaker 05: And as I understand the District of Columbia, it's always been clear that you sued the wrong defendant in its view, and that there's no allegation here where an accommodation is required by the United States. [00:55:18] Speaker 05: So the district says, happy to enter into negotiations in regard to your going back to North Carolina. [00:55:27] Speaker 05: And what's your response to that? [00:55:29] Speaker 04: One response is that's the first we've heard of that. [00:55:34] Speaker 04: But that goes to the argument that it's not necessary for DC to do anything. [00:55:41] Speaker 04: That's like arguing that if a person with HIV in DC were refused services at the DC homeless shelters and went to Maryland and then was in Maryland, [00:55:55] Speaker 04: the DC would have no further obligation for him. [00:55:58] Speaker 04: This is not just an Olmstead case, it's a denial of services on the basis of disability case. [00:56:04] Speaker 04: The DC denied those services before federal commitment, continues to deny them now, even if the current situation, and this case was filed before federal commitment had happened, if DC now couldn't do injunctive relief to get him out of the Bureau of Prisons, which I don't believe is true, [00:56:24] Speaker 04: he would still have a remedy in terms of damages. [00:56:29] Speaker 04: We believe that they can get him out. [00:56:32] Speaker 05: What is your strongest allegation in either the complaint or the amended complaint suggesting that the district has denied these benefits by reason of his disability? [00:56:45] Speaker 04: I believe the complaint does say those things and additionally says they're intentional for purposes of damages. [00:56:52] Speaker 04: and those allegations need to be taken as true. [00:56:55] Speaker 04: There isn't any other basis other than the fact that he has intellectual disability and the current director of DDS thinks people with intellectual disability are dangerous. [00:57:10] Speaker 04: We also believe every assessment that's been done [00:57:13] Speaker 04: shows that he is not dangerous, that the services to be provided here will significantly reduce any danger that's available and that this is completely within the district control. [00:57:26] Speaker 04: The idea that Maryland could step in or California could step in or the BOP could step in is completely hypothetical and not our obligation to plead. [00:57:43] Speaker 05: Anything further? [00:57:46] Speaker 04: No, thank you so much. [00:57:47] Speaker 00: Thank you, counsel. [00:57:49] Speaker 05: Thank you. [00:57:50] Speaker 05: We will take the case under advisement.