good morning counsel good morning community based treatment in d c thus the district refusal to up hold to sabah geishas under the a t a i to include mr sefton to the program and to treat him in an integrated setting is the direct cause of his current incarceration the district refusal is the only barrier to access to community based services for mr safir and that barrier must be removed that just has waited over three years in federal prison without services mostly in solitary confinement because of his intellectual disability and now at high risk of co that nineteen because of his asthma the district is no more correct in blaming the bureau of prisons for d c s own failure to act here than it was in brown vs d c when it plays the housing authority rather than its own lack of transition services or people's inability to leave nursing homes the a d a s section five hundred and four require the district to provide treatment services to mr equally and to do so in the most integrated provide services to your client what the necessities in this case is that the district take care and custody of him in order for him to receive community based services we don't agree that civil commitment is a prosecutorial disc function in many states and in d c prior to two thousand and eighteen there are mechanisms for voluntary civil commitment as well as rd parties have a commitment  that's correct that's what they argue we believe that and in in most circumstances the i d r a federal id r a would not require them to to undertake custody of mr sa  the failure of d c to provide those services is the bus for cause of his current federal civil commitment if the federal civil commitment stood in the way of d c taking custody of him which we don't believe that he they would still be liable for the damages and declaratory relief that mr so also seeks here but we believe the civic at the federal civil commitment in no way stands in that way they do not have prosecutorial discretion and they only raised prosecutorial discretion in this appeal never before the district court so that argument is way up here well so you think that your allegations are sufficient with respect to the but for call to state and all i'm saying claim yes we do your honor the remaining arguments that d c 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 dismis was the district required to respond to the attorney general the letter the district was had already agreed to seek civil commitment pursuant to sita prior to the attorney general the letter they had they should have implemented that commitment even prior to the attorney general's letter but they should have responded as well well not and should have but were they to leave is it your position that the district was legally obligated to  the attorney general sense a letter what was the district of columbia obligated to do if anything the district of columbia was obligated under the eighty a to seek to take care and custody of m law or the district of columbia to respond in as much as the federal statute that there is a preference for state should impose an obligation by itself to to respond to the federal government's requests they but that was another opportunity for the district to the federal government you know not the federal government but mr mr sack has his own obligation has his own rights under the eighty a to require d c to take care and custody of him either in response to the attorney general's there is no i believe the alternative remedies that she considered were going through the door of prisons or challenging the federal civil commitment however the eastern district  north carolina stated that the this case had already been filed that and that the services that we were looking at that would have whatever acquired parent custody by d c and services to d offer in fact the federal government doesn't have a federal medical system what it does is pay states to develop their own medical system so the federal government has already provided through medicaid  c gets seventy percent of his expenses paid by the federal government to provide these kinds of services we if we were to pursue something through the b o p s we would be asking them to create a new system so the most direct way and the federal government has already paid for the services to be provided to all d c residents is to see the deal the district of columbia to do what it is already getting federal money to do which is  had already committed to do and which started totally capable of doing law so it doesn't address the question of whether he's danger dangerous nonetheless mr seth is not arguing that he doesn't meet the standard of dangerousness for either seat or id are a in the absence of those serv s which don't those don't consider those services and so the d c eastern district of north carolina went ahead and said that those served because d c had failed to respond those services were not available and not before the court those services are exactly at issue in this case so those two cases are not we're not dealing with the same questions and then dangerousness is a fact question as well as an affirmative defense of direct threat and the burden of alleging and proving that is on the district i have a couple of questions judge garl unless the various requirements of the statute of the district statute are fulfilled but they take custody this is unlike voluntary treatment i believe that's correct they have to take responsibility for ensuring his treatment not responsibility custody that is they have to assure that he's under their control under the federal statute isn't that what the word custody means i'm not sure but other states manage to do this through both civil commitment and through other ways but yes asking what to do i'm asking the meaning of the federal statute that's all i'm trying to figure out the relationships between these  right i understand i have not been able to find any cases that define the word custody so i believe that remains a fact question that's not janessa law question so imagine assume for the purposes of the in the federal system or some entity of the district of columbia your own said claim amount to a claim that the a d a s a cause of action to require civil commitment in the district of columbia by the district of columbia is that what wrong said claim is well our claim is that the district of columbia failure to provide integrated services has led to his institutionalization and that they have a presumption is true then yes ok so could i just be clear on that point let's assume the hypothetical situation where your client is not under federal civil commitment order and he is just the resident of the district of columbia but he needs the services are you answering to judge discussion with the difficult columbia when it was proceeding to develop a plan for your client there was discussion that that is correct that that's there that was their their proposal at the point before mr south was federally civilly committed there was no obligation for that for d c to take care and custody of him in order to provide him services 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 the only thing but in that case the district prior to federal civil commitment said they would be comfortable if he providing the services if he were civilly committed and mistress have to agree to that now that he has been federally civil committed civilly committed because of the district's  failure to act they have to take care and custody whatever the meaning of that is through the i d r a and if that is civil commitment having already determined that that was reasonable it continues to be reasonable conducted activities and one is for federally funded activities where in the ones that are federally funded but that's not a significant difference here the department of justice and bureau prison do have obligations under section five  four but in this particular case the federal government doesn't have a federal health care system instead what it does is provide funding to the states to provide the health care system so in order to get the v o p most court addressing the issue of whether an entity have to create a new set of services or a new system have held that that's not a reasonable modification so it's entirely possible that the federal government would not have to create a health care system in order to address mistress the need to have to contract with somebody to do it it already has contracted with the district and the other states to do that i've been in  e i'm sorry i couldn't hear you i'm sorry private entity possibly but it has having already contracted with the state to to provide the entire health care system having the state or not we have but that was the i raised the seat being mandatory and therefore not subject to prosecute prosecutorial discretion because the district court based her decision basis decision on the lack of a private right of action we have not appealed that determination regarding the lack of a private right of action because the private right of action under the eighty and section five hundred and four addresses that we do  continue to believe that c that is is mandatory and does provide substantive guidelines that that allow this court or the district court to review any prosecutorial decision under sita one more question is with respect to the argument about the disparate treatment of mental illness and intellectual disability m civil commitment of people with mental illness violate the eighty a i would say this is not a facial challenge to see to and the urban act i'm saying what we're saying is an individual case and in the particular instance of mr saft that the the way the district is applying in fact the way the district is not implementing sita at all for people with intellectual disabilities and specifically mistress is a violation of the a da we are not challenging the district's determination to no not at all treat to treat the two differently no we are no good morning ma'am please the court holly johnson for the district of columbia 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 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 idea and civil commitment under see the because i believe mr seth is treating the two as one in the same  st of all the district has never rejected the idea of accepting mr south under a contract with the united states under conditional release the district believes that is much safer than civil commitment and here is why the district sest 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 it doesn't have a facility to do so moreover and this is really important in the proffered amended complaint mr seth's alleges that the district could place mr sex outside of the district in a lock up facility and now we dispute that as a matter of fact but given where we are  procedure even if that is so civil commitment undersea that is so much more dangerous because under the idea under a conditional release order united states has arres as soon as it has probable cause that a person has failed to comply with the conditions of release 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 now if mr sutton violated those conditions under civil commitment under see the d d s would have to do is go to the family court and seek an order reasonable accommodation claim because the laws or regulations specifically state that a government must offer an accommodation only if it is necessary to avoid discrimination on the basis of disability that's in the regulations now here the alleged discrimination is unnecessary institutionalization and it is not necessary for the district to assume legal custody over mr seth and remove him from federal custody for him to receive this this  release if as he alleges he can be safely released to the community the united states has to give him that relief well i don't understand that argument that the federal government has civil perhaps that will help the initial civil commitment that the eastern district of north carolina ordered does not contemplate anything other than institutionalization 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 that now what i want to understand is the attorney general  to the district of columbia and you said something like well if services exist in the district of columbia the district of columbia would provide the united states would release mr seth to the district if the district successfully committed mr sas under see that those are the only circumstances it's not about  columbia do that when he is under a federal civil commitment order i think the way it would work and as you know we believe this would be greatly dangerous but i think the way it would work is that mr says would remain under the custody the legal custody of the united states wow civil commitment proceedings were going on in the district of columbia and then if those were successful custody would transfer now of course we have concerns as to whether he can even be committed under sita but based on on the complaint that's 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 should file what no i mean ok so if what he wants is to be treated in the district in a community 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 and the district is willing to consider course we would have to be assured about safety and stuff like that but the district and district of north carolina said that the matter of services was not a matter it was considering time passing and this at least according to the allegations we have is not receiving any services all right the locked up at least twenty two hours a day  isolation because everybody's concerned about his inability to follow rules and regulations and he would be a danger so how do we break this circle and that's  argument to handle these matters and provide the services and indeed it's already pay for them and if the federal government in this case was so concerned about it it could even contract for local services but it hasn't done any of that the most direct way to do this is to suv the district of columbia but a way to try to break this vicious cycle and implement the federal statu so i think that i can clear up some of these questions if you'll bear with me i'm going to start by explaining the proceedings in the eastern district of north carolina because i understand that they have peer circular that they are not actually circular explain because i do think this will answer your question regarding what happens in the eastern district of north carolina the judge there was right at the end mishal civil commitment proceeding to say that whether the district could provide services was irrelevant because the district was not taking custody now there's a difference between taking custody which would require the federal government to let go of custody and have commitment understand that there's a difference between that and allowing some sort of conditional release where he remains in the custody of the federal government what happens is after that initial order the initial order of commitment at that point the question of whether conditional release is appropriate becomes white and ha at any time after that civil commitment raised the question with the eastern district of north carolina 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 and the district court a year ago urged mr seth to do this in order of dismissal there's that one footnote of federal custody and as i explained having him out of federal custody is incredibly dangerous he could easily up scotland and return to hurting children in the district of columbia so i hope that answers your question 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 this isn't not a catch twenty two dollars the district does not want to assume custody over mr seth because that would be incredibly dangerous for the public 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 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 own stead and the integration mandate there's only two types of almost dead cases there is a type like this where a person is forcibly detained the civil commitment and there are cases where an individual is forced to self institutionalized because that's the only place they can get the care they need to survive and the district has done neither of these things the district is not the entity that has forced mr sas into commitment and so i want to talk about own itself i think this is important because the elements of own stead follows the question presented to the court and the question presented itself assumes custody in the st paragraph of the case the question presented is applied to a government that neither had custody over an individual nor was denying it services and therefore forced in the person to self institutionalized and mr says repeatedly says the district services other people get but that is simply not mr staff has been found eligible to receive services in the district he's just not here to get them and there's no authority indicating that helping a person  return to the district is a service to which any detail is entitled i also want to address with the court's indulgence the question of forfeiture because mr stubbs keeps arguing that we have forfeited these key arguments and this is also the seed argument because that's where the argument was but it was certainly there to fifty two dollars the district argued that it had discretion under sea that had no obligation to commit and at  and fifty five dollars we argued that there's no allegation of accommodation that is reasonable and again this is also something that the district court passed on the district court talked about how this was not something that was mandatory now i can understand that there are some matters that were an agency would normally have discretion where the eighty eight could require the district to step in but this is simply not that type of case as i said it's not an accommodation that is necessary and it's also not something that is the type of accommodation that the district would ever offer 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 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 so that they can come back to the district and receive services while awaiting that is not something that we would say that the district is responsible for doing and so these arguments have not been forfeited and we have made it very clear that under the own claim it's the wrong defendant and even if this is categorized under the reasonable accommodation rubric it simply isn't necessary it's incredibly dangerous to suggest that the district should have to assume custody when there is a much safer way that if the allegations in the complaint are true and mr sense can safely be served in the community the united states legally has to provide him the same relief so that me ask you if you're in the where is mister physically he files in the eastern district of north carolina a motion for a conditional release as i understand the statutory scheme he would have to present the district court with a program of services that columbia hated it would provide to him that would address the dangerousness concerns or that he has developed a program based on private correct those are certainly the core grant conditional release i missed the st part of that question i'm sorry but i think that i understand the question the district court itself can develop a plan in conjunction with mr seth i don't imagine that all of the individuals who have a change conditional release and there are many there are lots of  that you can find on lexus 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 person with disabilities themselves but certainly he would file something in the district court saying i can be safely treated in the community and then that would be a question of fact in the district court and the district court would look at the different options it would look at the different types of plans and like i said there are a lot of the public don the district court that there's some reason even  consider i'm not going to speak as to who is the moving party and who bears the burden but yes at the end they would have to come up with a plan i don't know who bears the burden dealing with what you've been telling me this morning is  have some type of program and what he has now understand this is the district of columbia is refusing to even answer the attorney general this program ok i understand your question so i have three answers and if you'll bear with me number one mr sets doesn't have to be the moving party because there are also independent obligations united states has never asked the district to consider any sort of placement plan that would involve conditional release and that's very different from a blanket letter saying will you assume custody over this individual i or i'm sorry can you repeat that is that the nature of the attorney general's letter here yes yes i mean there's also questions of fact because the district didn't receive the letter until af seventy percent 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 this trip alone agree to that  situation yes and i am happy to address that yes the district of columbia is interested in opening a discussion regarding conditional release that would involve mr sest being returned to the district of know because we can't make i've heard 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 th discussions now there's a lot that has to be done that we would need assurances if mr stuff cannot be safely treated in the community obviously we would not be able to come up with a plan for conditional release but and so what happens next so there have been two plans there both fairly old but they might still be good plans and those would be a great starting point and if indeed one of those plans is still viable given if there would have to be updated assessments i mean he has been in federal custody for a while and we have in the marmaton learned i don't understand are we talking about discussions counsel to counsel talking about the district is happy to enter into discussions regarding conditional release and that has never been something that mr seth has entertained with us mr cephas insisted that the district has to assume custody and if the district assumes custody it cannot protect the public from mr savva and that the district is as i said and i'm telling you this now happy to address that the conversation would be between d not disputed in the district court most of these come up as a result of conversations between sort of like a plea agreement there's a conditional release agreement where everyone works out a plan and then they present it to the district court s attorney who is handling his ongoing civil commitment proceedings in the eastern district of north carolina and i think that assuming that it is true that he can be treated safely in the community i think that it could work  but i don't think the right vehicle for this is to sue us under the a b a and accuse the district of discrimination because there's been no evidence of discrimination the district didn't do anything to mr seth it didn't place him in th institution and all it has done is said that the district does not itself have the capacity to safely assume custody over him i would also know that even if the district was refusing to have anything to do  with conditional release order mr says could easily go directly to the private entity 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 the district of columbia doesn't need to be involved in this we're happy to be involved in it that you don't they don't need us for this and this is where we get down to the fact that he's trying to squeeze something that does not fit into the under reasonable accommodation claim when it is not necessary for the district to be haven't been listening for chimes but i imagine i have far exceeded my time so i would leave the court just with two notions number one the district is not the right defendant here the united states is and number two that even if this were to fall under a claim against the district under the mr sas has not alleged an accommodation that is necessary for him to receive the relief you counsel thank you thank you for taking the time to answer questions that took these beyond your time to my computer here so i gather that and you hear me ye are a lot of facts in in ms johnson presentation and i think that emphasizes the fact that the dangerousness argument that they're making is a fact question as well a affirmative defense but also some of them i simply have to would disagree with as a factual matter do you see does have lockup facilities including saying elizabeth and has sent people to out of state locked as i understand the district of columbia it's always been clear that uses the wrong defendant view and that there's no allegation here where an accommodation is is that if a person with hiv in d c were were refused services at the d c homeless shelters and went to maryland and then was in maryland the d c would have no further obligation for him this is not just an owner that case it's a denial of services on the basis of disability case b d c denied those services before federal commitment continued to deny them now even if the current situation and this case was filed before a federal commitment had happened is d c now couldn't do injunctive relief to get him out of the bureau of prisons which i don't believe is true he would still have a remedy in his disability i believe the complaint does say those things and it additionally says they're intentional for purposes of damages and those allegations need to be completely taken as true there isn't any other basis other than the fact that he has intellectual disability and the current director of d d s thinks people with intellectual disability are dangerous we also believe every assessment that's been done 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 the idea that maryland because step in or california could step in or the b o p could step in is completely hypothetical and not our obligation to plead