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Case number 22-1760, Alsat Maldonado et al.

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at balance versus District of Columbia, a municipal corporation.

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Mr. Huang for the at balance, Mr. Lau for the atally.

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Good morning, Mr. Huang.

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Good morning.

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We are ready when you are.

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May I please support?

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My name is Michael Huang.

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from the firm Terrace Pallic in Millian, and I represent plaintiff's appellants.

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I'd like to reserve one minute of my time for rebuttal.

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This appeal may be decided by a basic principle.

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The case can't be moved if the violation alleged by plaintiffs is ongoing, as this court said in true the vote versus IRS.

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The plaintiffs brought this case to require the District of Columbia

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to provide procedural due process to plaintiffs in the form of individualized written notice when their prescriptions are denied at the pharmacy.

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The district had a heavy burden to prove lunacy, and it failed to do so because it could provide no evidence that its violations had actually ceased.

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Well, hold up just a minute here.

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The case was brought alleging that they did not

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have in place regulations or procedures or processes that would ensure that people got this notice of what their right was for appeal and related rights.

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They have issued such a directive to all the participating pharmacies, have they not?

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Your honor, the district's entire argument rests on the idea that plaintiffs only... So that would be a yes, right?

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They have done so.

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Plaintiff's factual allegations were that the district had no policies, procedures, or practices.

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Plaintiffs specifically identified... But as far as practices, what you're talking about in practices would be a violation of what they have directed their pharmacies to do, right?

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Well, it would be implementation of their policy, their paper policy, I would add.

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So the remedy for that would appear to be that if their individual cases where they're not doing it,

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That would be for action in those individual cases.

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And if this face action to correct the failure to so direct is moved.

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They've done what they were, they've done what they were ordered to do.

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No, your honor.

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Uh, policy in our view is not as sufficient nor necessary.

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If, if plaintiffs only challenge their, the district's policy or the lack of a policy and the district would be correct that

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Normally, it's stated many times in various cases that you cannot enjoin someone to obey the law.

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They're already compelled to obey the law.

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If all you're doing is telling them, don't violate this, then it's not a proper case for equitable relief.

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It's a proper case for individual administrative relief, isn't it?

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Your Honor, I believe that what the cases say is in the case of this nature,

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that the issuance of a policy does not automatically move a case.

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Generally speaking, you cite the vote case, vote now I think it is, but in those cases, in that one at least, the agency was actually, you started the classic injunction, quit discriminating, okay?

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They had said, okay,

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People on our staff went to Germany, but there was clear evidence that they were still discriminating.

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There was an affirmative act going on here.

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There's not an affirmative act you're trying to stop.

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There's a failure to act that you're trying to start, and that I'm not sure how we can do anything at this stage to remedy that.

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That appears to be something you'd have to do in an individual.

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I think we disagree.

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I mean, you're absolutely correct that this case is very different from the situation where you're asking a defendant to stop doing something.

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Yeah.

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I mean, here we're alleging the deprivation of a right, where the plaintiffs have alleged deprivation of a right.

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Here you're wanting the agency to know you're wanting the contracting parties to start doing something.

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Right.

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And I'm not sure what more we could order the district to do when they've already told their pharmacist, you have to start doing this.

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Okay, Your Honor, what plaintiffs alleged in their complaint to be the unlawful conduct

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was the failure to give plaintiffs procedural due process.

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Yeah, right.

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Now when we get to the stage where you can determine whether or not they're getting the process, we've done what the court can do on that, haven't we?

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We can't go out and look in the drug stores and see whether they're failing to do that.

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Doesn't that require an individualized action?

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Your Honor, the district simply issuing a policy on paper does not give plaintiffs procedural due process.

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What did they fail to do?

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They hit when the case started in 2010.

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No, no, no, no, no.

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Forget about when the case started.

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When we come now on the district court, it said it's moved.

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What is it that you say the agency, the district could have done that they haven't done?

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The district could have awarded much more injunctive relief.

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It could much more injunctive relief, your honor.

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It could have required the district to do monitoring of its policy.

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It could require the district to actually give the notice by training the pharmacies.

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It could require funding of the implementation of a program to give individualized written notice.

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There's many things that the district court was empowered to award as far as injunctive

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But beyond even the adjunctive belief, there is also the availability of... So you would say that an action to enjoin them or mandatorily enjoin them from something they've not been doing would empower the district court to take over and run the district?

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Well, that's not what plaintiffs are saying, but as a practical matter, you know, it would be incumbent on the district to decide how it wants to... How can we draw an order that says it's incumbent upon you to decide how to do this?

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But you're here to do it, but it's been coming upon you and we're not going.

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We're not in a position to tell you.

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Well, your honor, it would be inappropriate for plaintiffs.

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Why is it not appropriate for the plaintiffs who if they are actually not getting their process to go to court and ask for their process?

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It's our first demanded of the district, and then if they don't get it, your honor, why is that not the appropriate way to proceed?

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Your honor, we don't believe that's what the cases require.

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There's cases including from this circuit such as a Superman

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and truth of vote, which say that just because an agency has ostensibly changed its policy, that is not enough.

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But truth of vote, again, that's where the IRS had claimed that they had quit discriminating.

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And then in the further proceedings after the district court admitted that they still had people discriminating.

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We were not there

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ordering them to go out and do something, we're ordering them to quit doing something.

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And as you admitted it earlier in your argument, it's the opposite of what you're asking for.

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Your Honor is correct.

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But we believe that the fact that the district is required to take affirmative steps to do something and sustain that in perpetuity, that makes this case even harder to moot because the district is required to take affirmative action.

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That requires resources.

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That requires effort.

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And so if the court were to, for example, apply the test for voluntary cessation,

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and that suggests that the district's violations would not be unlikely to recur.

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But we think that, as to the vote says, that the court doesn't even need to get there because the district simply hasn't even shown, it hasn't met the threshold issue of showing that its violations exist.

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Through the vote is not important.

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Through the vote is an opposite situation.

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You had admitted that the IRS were discriminating against certain employers in certain

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entities as far as the tax deductible status.

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The IRS claimed, all right, we told our people to quit.

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But it came to court and they admitted they hadn't quit.

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So we said, look, it's not moot because they're still doing it, so quit doing it.

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That was very simple.

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This is not at all the same thing.

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Your Honor, we would submit that this case

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is exactly like that because even though it wasn't 180 degrees.

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Well, it's, it's the same as to the vote in the sense that plaintiffs came forward with clear underbutted evidence that violations are ongoing.

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And this, this, again, which case the violations are a failure to do something.

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And through the vote, the agency's violations were doing something.

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It's 180 degrees different.

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It's what the mandatory power, the injecting junkie power would have to be.

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You're correct, Your Honor, that the injunction that will be awarded is certainly different.

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But we think that distinction actually works in our favor as far as considering the mootness question.

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It is much easier for a defendant to stop doing something.

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Most of the time, it's going to be costless.

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In this situation,

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the district was required to come forth with specific facts to show that due process violations actually cease.

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How can you ever come forward with an act to show that this isn't going to happen again when the thing you're talking about is not happening again is an affirmative act?

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You lost me here.

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How do you think this is in your favor?

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Well, Your Honor, the test, the well-established standard

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determining moodness in a situation like this is voluntary cessation.

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This court said cessation is not near cessation.

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A case is not moot if it's moot as to the vast majority of parties.

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So cessation, by definition, that means to bring an end to something.

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It is difficult, Your Honor.

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Concededly, it would be difficult for a defendant to show moodness, but that is as it should be because moodness would deprive the court of subject matter jurisdiction.

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So for the district court to decide at the motion to dismiss stage

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that this case was moved without requiring the district to come forward with specific evidence showing that its due process violations had ceased.

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We submit, fell far short of the standards.

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How can you ever show that?

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How could they ever show that they've totally ceased?

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The district?

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Yeah, how could they ever show that?

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They go ahead and say that there's not any after today.

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We went around all our farmers and said, have you violated today or is this it would be very hard for them to show it in a pre discovery stage on her.

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They would have to come forward with evidence that they were actually giving notice that they had policies, practices and procedures to ensure that plaintiffs were actually receiving due process.

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So that is what we submit that

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the district could have done, should have done any defendant in a case such as this would be required to do in order to prove mootness.

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It is appropriately a high bar.

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It is a high standard.

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And plaintiffs, even though the plaintiffs were not allowed to take discovery and did not have the burden of proof, came forward with unrebutted evidence to show that the district's due process violations are ongoing.

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I see that over my time.

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Do you have any questions, Judge Tatum?

[00:11:41] Speaker 01:
Thank you, Mr. We'll give you some time on.

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Morning, may I please report Richard love for the District of Columbia?

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The district already has a notice policy that the district court found satisfied due process and claims arguments here are based on a different case challenge.

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Why is the policy enough?

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when the allegations that there's a deprivation of due process at the counter when people are trying to purchase their prescription drugs.

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Why is the policy enough?

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Why are you not responsible for ensuring that the policy is implemented?

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Well, I think it's not enough because the claim that the plaintiffs have brought in this is consistent in all of the complaints from the original complaint, First Amendment, the Second Amendment complaint, as well as in

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their other motions that they have filed before the court is based on a failure of the districts to have a policy, a transmittal, a regulation, or any guidance that provides for individualized written notice at the point of sale when a Medicaid prescription is denied.

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Paragraph one of the complaint says that

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the district's policies, procedures, and practices of failing to provide individualized notes violate the process clause.

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I mean, that sounds like the allegation is that they're failing to get notice.

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And then they go through several paragraphs in the complaint, 44 through 57, where

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Maldonado herself alleges that she was repeatedly denied a prescription without notice.

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So the allegation isn't just that there's an absence of policy.

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It's that they're in fact not getting the actual notice when a prescription is denied.

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That's what the complaint says.

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Well, I agree, Your Honor, that the injury that they assert is that they don't receive written notice at the point of sale when their prescription is denied.

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But the moving cause of their violation has consistently been the lack of a district policy.

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I just read you from the complaint that their allegation is that they're actually not getting notice.

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And also,

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Also in our earlier decision in this case, one of our earlier decisions in this case, NB, we described the district's, the plaintiff's allegation as the district, quote, systematically failing to provide Medicaid recipients with actual notice.

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And that was the basis for their Article III standing.

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So you've got the complaint saying they're being denied notice.

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You've got our earlier decision saying they're systematically denied notice and that that is the basis for the Article 3 injury.

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So I don't see how you can say that the only thing they're seeking is a policy.

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I think that the basis of their claim was that the lack of a policy.

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Their complaint was, yeah, the district doesn't have a policy and we're being denied.

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We're being denied the information required by the due process clause.

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Now you have a policy, but they still have.

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evidence that they're in fact not getting the required, the notice that they believe they're entitled to under the due process.

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I agree, Your Honor, that as I said,

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The injury is their failure to receive notice, but the because, the moving cause, the original theory of this claim has always been a lack of policy or procedure that required it.

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And in your decision in ND1, the court found standing that plaintiffs had alleged a procedural injury, and I quote, that was directly

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Policies and procedures.

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Exactly.

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Excuse me.

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These are individual plaintiffs.

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What good is a policy to them if it's not being implemented?

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If they're not getting the notice that they're entitled to under the due process clause at the point of sale, what good is a policy that's not being implemented to individuals standing at the counter?

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Well, I would submit that there's there's not evidence that they're not getting the policy particularly to the contrary.

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Apparently there is evidence in the record that they're not getting it in 13 out of 16 pharmacies that they that they surveyed.

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But if we disagree with you, if we.

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If we.

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find or hold that the plaintiff's claim was not tied strictly to policies, then do you agree that you would lose this case and this is a remand?

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Yes, Your Honor, I would submit, however, at a minimum, the policy portion of this claim is we have a finding by the district court

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that the policy satisfies a due process that provides its constitution.

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Why would we have to decide that we would just remand this and then there would be further proceedings?

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Why would we hold this partially?

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That makes no sense.

[00:17:45] Speaker 03:
Well, I think it's important for the court to be clear on what this is being remanded on.

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And this is a municipal liability case.

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It was originally premised on a lack of a policy.

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Now it's a practice case, but we don't have evidence

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We don't have factual allegations in the complaint.

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There's a practice of violating the current policy that is so widespread, egregious, and persistent, has to be a standard operating procedure of which municipal policy... Would you be in a better position on that argument if the district court had permitted discovery instead of granting summary judgment?

[00:18:25] Speaker 03:
Undoubtedly, Your Honor, but my suggestion simply is if it's remanded,

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it should be remanded on the sole remaining issue, which is whether or not the district has a practice of violating the 2020 policy.

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In other words, if that policy is violated, you know... So are you conceding the case should be remanded then?

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No, I'm saying at least

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You know, my original argument, I haven't changed.

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The question was if you don't accept that this is tied to a policy, what would be the repression?

[00:19:04] Speaker 03:
Yes, I think the court would.

[00:19:06] Speaker 03:
Uh, then have to read it.

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But as I suggest, I think the policy portion of the same is moved that it is important to, uh, find that the district court and it hasn't been changed.

[00:19:17] Speaker 01:
Do you have any precedent for us doing a partial remand like that holding part of the case moot and remanding arrest?

[00:19:26] Speaker 01:
I don't see why we would do that if they're going to be further proceedings in the district court.

[00:19:29] Speaker 01:
We should just remand.

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or further findings consistent with whatever we say in our opinion?

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Do you have any precedent for us doing what you're proposing?

[00:19:39] Speaker 03:
Well, I do think we cite precedent in terms of the court's finding that the notice that the policy requires is constitutionally sufficient as law of the case, and it hasn't been squarely challenged in this appeal.

[00:19:56] Speaker 01:
Well, that would be up to Judge Leon.

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It would be up to the district court on remand.

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to determine that.

[00:20:04] Speaker 02:
Well, I'm curious about your character a few questions ago.

[00:20:10] Speaker 02:
Excuse me, you said there wasn't any evidence that people aren't getting notice and the district court said it was only a handful.

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But let me just, here's what the plaintiffs say they found in their survey.

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Non-compliance with the transmittal memo in all eight

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Only three out of the 16 pharmacies, pharmacies, only three of the 16 pharmacies said they were getting notice and that Medicaid recipients, including the named plaintiffs in this case, were denied Medicaid coverage without any notes.

[00:20:46] Speaker 02:
That doesn't sound like, I mean, they haven't even had any discovery and this is, and they also say in their brief that the district didn't challenge any of that in the district court.

[00:20:53] Speaker 02:
Is that correct?

[00:20:56] Speaker 03:
Well,

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No, the district didn't challenge the BR's declaration, which is the only competent evidence in the case.

[00:21:07] Speaker 03:
And it said it really couldn't address the hearsay declaration as to what the various pharmacists hold.

[00:21:16] Speaker 02:
This evidence is unchallenged, at least at this stage.

[00:21:22] Speaker 02:
So it's a little hard for me to see how you could characterize this.

[00:21:27] Speaker 02:
Or do you agree that this is, quote, a handful of examples?

[00:21:31] Speaker 03:
I didn't mean to advice.

[00:21:32] Speaker 02:
No, that was a district judge who said a handful.

[00:21:35] Speaker 02:
I was asking if you agreed with him.

[00:21:38] Speaker 03:
I think there are sporadic instances of noncompliance.

[00:21:42] Speaker 03:
After all, there are hundreds of forms, hundreds of prescriptions.

[00:21:45] Speaker 03:
Noncompliance in all eight wards of the district.

[00:21:49] Speaker 03:
Well, we disagreed with that interpretation as we set forth in our brief, I think.

[00:21:54] Speaker 02:
You disagreed in your brief, but you didn't disagree in the district court.

[00:21:58] Speaker 02:
And the plaintiffs hadn't had any discovery.

[00:22:00] Speaker 03:
Well, not putting forth evidence, I'm simply saying that I read those declarations that at least nine of those pharmacies provide notice in some form, whether through an insurance form, a text, or an email.

[00:22:14] Speaker 03:
and in terms of whether there's notice provided constitutionally, that is sufficient, whether it's provided through the district's required notice form or some other notice form.

[00:22:25] Speaker 02:
By the way, just in terms of your argument that the policy, your basic argument is still, look, we've issued a policy that answers the complaint, right?

[00:22:33] Speaker 02:
Case is moved.

[00:22:34] Speaker 02:
Right.

[00:22:35] Speaker 02:
That's the original claim.

[00:22:36] Speaker 02:
The policy is suppose.

[00:22:38] Speaker 02:
Suppose after the Supreme Court decided Brown versus board, the states had simply passed laws saying no more dual system.

[00:22:46] Speaker 02:
You think that would have made Brown moot?

[00:22:49] Speaker 02:
I think it depends on how the complaint was filed.

[00:22:54] Speaker 02:
Just like this case, the students are claiming that they're denied admission to white schools.

[00:23:01] Speaker 02:
So the state passes a law saying anybody can go to any school they want.

[00:23:06] Speaker 02:
And the plaintiff says, wait, we're still being denied admission to those schools.

[00:23:09] Speaker 02:
Under your theory, it would be dismissed, correct?

[00:23:11] Speaker 03:
Because the state has a policy.

[00:23:13] Speaker 03:
I think the difference in this case, Your Honor, is that this is a municipal

[00:23:17] Speaker 03:
And to show municipal liability, you need to show either a policy or practice, it's a moving cause of the violence.

[00:23:26] Speaker 01:
And here, the theory of the moving- I'm sorry, so the Brown v. Board case would not be in a similar posture?

[00:23:32] Speaker 01:
I'm sorry?

[00:23:33] Speaker 01:
Judge Tatel asked you a hypothetical involving Brown v. Board, and that's not a municipal practice if children are denied entry to-

[00:23:43] Speaker 03:
No, I agree.

[00:23:45] Speaker 03:
I'm not disagreeing with no, it would not be moved.

[00:23:48] Speaker 03:
I'm simply pointing.

[00:23:49] Speaker 03:
Then I don't understand how this case is moved.

[00:23:51] Speaker 02:
It's the same case, exactly the same.

[00:23:58] Speaker 03:
I think as I put it forward,

[00:24:02] Speaker 03:
Uh, we believe at minimum policy issue is an issue and it's remanded.

[00:24:09] Speaker 04:
It's the issue before us today is based on a summary judgment on a jurisdiction question.

[00:24:16] Speaker 04:
That is to say whether the case is moved under Herbert District Courts can and in times must have evidentiary proceedings with respect to

[00:24:30] Speaker 04:
the jurisdictional facts on which a jurisdictional decision is made.

[00:24:34] Speaker 04:
So why would it not be the case that at least the district court should have permitted the plaintiffs to go forward with discovery to answer the jurisdictional question in the Victor Herbert type hearing?

[00:24:54] Speaker 03:
I think that the court didn't use its discretion in not allowing discovery because I think the discovery that the plaintiff requested really went to the implementation of the 2020 policy and not the constitutional sufficiency of the policy.

[00:25:14] Speaker 03:
and certainly it could have authorized.

[00:25:20] Speaker 04:
If the question is open, then if you look in the original complaint, I will grant you the amended complaint is principally directed toward policy, but they do have the words practices into the magic words from the municipal liability cases are in there, aren't they?

[00:25:36] Speaker 03:
Yes, they are.

[00:25:38] Speaker 04:
Okay.

[00:25:39] Speaker 03:
But I would submit that the practice is an idea to have a policy requiring individual notes.

[00:25:44] Speaker 04:
So now, though, once the question has become mootness, why shouldn't they be entitled to at least attempt to show facts from which the court might determine that the practices do not match the policies?

[00:26:01] Speaker 03:
I think that raises the question whether the district court abuses authority in denying it.

[00:26:06] Speaker 03:
And as I said, I thought that...

[00:26:08] Speaker 04:
You don't really have discretion on a summary judgment.

[00:26:12] Speaker 04:
You have to find, to conclude that there's no substantial material, substantial question of material fact.

[00:26:18] Speaker 04:
That's not a discretionary question.

[00:26:21] Speaker 04:
That's a question of law.

[00:26:25] Speaker 04:
Well, the abuse of discretion is not the standard on summary judgment is it?

[00:26:30] Speaker 03:
No, it would be on whether or not the district

[00:26:34] Speaker 03:
Well, the district court did not allow that.

[00:26:36] Speaker 03:
The type of discovery that you suggest should have been allowed to determine whether there was jurisdiction.

[00:26:44] Speaker 04:
Now again, normally we would think that the lapse of time here would say, well, they should have got it done before something, but the mootness question didn't come up till this stage, obviously, with the litigation.

[00:26:55] Speaker 04:
So again, maybe apply less abusive discretion even then and say, shouldn't there have been at least an allowance of

[00:27:04] Speaker 04:
an attempt to show that practices were not meeting standard.

[00:27:10] Speaker 03:
I certainly think that the court could have authorized the at discovery, but I don't think it is discretion.

[00:27:20] Speaker 01:
Thank you.

[00:27:20] Speaker 01:
Anything else?

[00:27:22] Speaker 01:
Thank you very much.

[00:27:23] Speaker 01:
Thank you.

[00:27:25] Speaker 01:
So long.

[00:27:25] Speaker 01:
We'll give you one minute.

[00:27:34] Speaker 01:
Mr. Wong, if you could address your motion to remand to a different judge.

[00:27:40] Speaker 01:
We haven't had a chance to touch on that.

[00:27:42] Speaker 00:
Yes, Your Honor.

[00:27:44] Speaker 00:
But simply, this case is over 12 years old, and plaintiffs have never been to discovery.

[00:27:50] Speaker 00:
I'll note that in 2012, when we were before this court, and the case was remanded on standing, this court wanted the case to proceed to merits.

[00:28:02] Speaker 00:
Uh, regretfully, we have not been able to proceed to merits in the, uh, over 10 years since then.

[00:28:08] Speaker 01:
Um, and, uh, it has to be truly extraordinary under our case law for us to do that.

[00:28:15] Speaker 01:
And what's your best argument for why this is truly extraordinary.

[00:28:19] Speaker 00:
We believe that that fact itself is extraordinary.

[00:28:22] Speaker 00:
It's not, it's not usual for a case of this nature to have gone 12 years without discovery.

[00:28:27] Speaker 00:
But beyond that, uh, it's the way that the district

[00:28:31] Speaker 00:
court has adjudicated the merits of plaintiff's motions versus the district motions has not been fair.

[00:28:39] Speaker 00:
The district court has refused to adjudicate plaintiff's motions for class certification.

[00:28:45] Speaker 00:
The rule for class certification states that those motions should be adjudicated at the earliest practical stage.

[00:28:53] Speaker 00:
The district court has refused to adjudicate plaintiff's motions for summary judgment.

[00:28:57] Speaker 00:
And on the other hand,

[00:28:59] Speaker 00:
the district court has entertained motion to dismiss after motion to dismiss out by the district, which has resulted in three trips to tour of this court.

[00:29:09] Speaker 00:
So it is, it is the, um, the unequal treatment and plaintiffs have essentially been unable to, uh, prosecute their case.

[00:29:20] Speaker 00:
They've been prevented from doing that.

[00:29:21] Speaker 00:
Discovery has been stayed.

[00:29:23] Speaker 00:
Uh, most, most of the entire case plaintiffs haven't had the opportunity to take discovery.

[00:29:28] Speaker 00:
And so, because of those facts, I think that reassignment is appropriate.

[00:29:34] Speaker ?:
Thank you.

[00:29:35] Speaker 01:
Any other questions?

[00:29:37] Speaker 01:
No.

[00:29:37] Speaker 01:
Thank you very much, Mr. Wong.

[00:29:39] Speaker 01:
Case is submitted.