number fifteen thirty nine zero six seven pent up versus director ohio department of job and family services at all the argument not to exceed fifteen minutes per side mr christopher pagan for the thank you good morning may please the court counsel for public county i would like to reserve four minutes for obama please we have two claims that we presented to the district court i think that's an important first point because the district court's decision dismissing this case indicated that it believed that there was a single climb you need to have the claims parsed out in order to make a fair and accurate and appropriate determination about the statute of limitations that applies to each cla are two claims one procedural due process and then a second claim substantive due process importantly those are two different claims because one deals with inadequate process and the second deals with constitutional injury for arbitrary behavior irrespective of process and we think we have we stated both those claims both are present on the facts in our complaint let me go back circle back to the procedural due process claim because it is of a certain piece a unique one and it's called a claim here that the hearing officer that heard this case received absolutely zero training in being a hearing officer and that was reflected in his decision apart from that element we have to prove a stigma and a plus and also insufficient procedure the air that the district court made and that i believe that my opponent makes in or doing to you about the fear of satisfy the statue limitations in this case mainly regards the fourth element and that's procedural insufficien the procedural due process claim one is the failure to train train the hearing officer and then secondly the failure to train the social workers about the law respect to child abuse in ohio but specifically with respect to the use of child restraints that are specifically because they're both related to procedural due process in the stigma plus so there so i think that we have two distinct procedural due process stigma plus claims one directed at the hearing officer and then one directed at the social worker and while you're on that point i think that the same thing applies to subsume of the process because that also is a monella claim and it contains two distinct parts as well one directed at the hearing officer and one directed at the social workers because when we get if we're successful here  constitutional wrong but no injury yeah potentially i mean if i think that would that would knock out my substantive due process claim for sure because why because i would have to i have to make an element that there was the infliction of arbitrary injury and if he was not trained but got it right i don't think i could make that claim but you make a good point thankfully it's not present on this case because not only was he not trained but he got it so wrong that we think  it constitutes a constitutional injury i mean let me just tell you what the hearing officer did in this case he didn't cite any law he didn't apply any law to facts he issued a public policy declaration from his position as an in and it as a administrative hearing wrong from a legal error how do we tell when a decision maker has passed from just wrong which judges are sometimes i'm hearing about this case i think that the procedure itself is tainted by the lack of training that dead when i mean to start off with the with the statute itself and the administrative code it doesn't have specific information about how butler county is supposed to conduct these hearings so it's wide open for them and they've decided to conduct hearings not using a lawyer and not twitter but i realize with different situation with the officer versus  terribly never never done anything on the civil side and is that a constitutional wrong no i don't i think the supreme court said no and i can't remember the name of the case but it was the case that came out  of new orleans in which it was a brady claim and the plaintiffs made the claim that none of the prosecutors in new orleans had been trained specifically for their brady violations in that there was should be a mono liability to new orleans and that tried cases in the news put in a position where they're seeing different types of cases that's one thing but when you have a social worker with absolutely no training who's been asked to decide cases here evidence to side with the law is applied law and then screws that up i think that that's just of a different piece fact that i was allowed to do it was because i had a sympathetic prosecutor on the other side who felt like shawn my client had gotten a bad deal and he didn't raise a law that is existing in ohio law that says you don't have a state administrative appeal from these charges decisions  the state court because because the the state prosecutor waived well i mean clearly the availability of promise there to procedural due process does but it probably goes it's not timely because from my client's point of view she went in before a administrative judge was untrained who the state judge said acted arbitrarily lost her job and never got it back and by the time she got to court it was a year later in the damage was that that particular job but right now her she's moved on to a different job now that her other job wasn't available to her she didn't want to take one that was paid less  immunity and staff associated with judges i felt like that that was the case thank you filed as to delaware county plaintiff defines the harm in her complaint and it's a discreet injury she says in her complaint paragraph eighteen that the social workers investigated and they placed her on the registry and in paragraph twenty one she pleads the plus element for stigma plus claim which is that she lost her job as a result and she obviously knew about this harm because she appealed it to the hearing officer so the disposition under state law of her as on the central registry is being indicated for child abuse had already occurred and she by by her own complaint was aware of it it's public county's position as to the statute limitations claim that that whatever mr morse in the hearing officers role was that was a state ministry of process a review it was part of her appellate process and that's the find in ohio laws we cited in our brief we cited the ministry of code that sets forth two components one is the investigators obligation social workers obligation and two is i dispose appeal after the disposition had already been made under supreme court precedent  section one thousand three claims are separate and distinct from state administrative remedies and other words need not wait until the the disposition of the remedy of her appeals to the state administrative process to file a claim you agree court reviews reviews of the situation and issued a decision saying saying there wasn't substantial evidence on the record for for them to confirm it but that's a that's again a judicial remedy she pursued claim that w hearing how would you respond the judge moore the the hearing officer has no authority to substantiate a claim that had already been unsubstantiated here officer sol role is in the process a disposition appeal there i don't know that that goes to answering the question i mean that for me church and what i what i mean by that is that whatever the hearing officer had results in an adverse decision by the hearing officer now this may or may not be a good claim but why isn't it timely our our viewpoint is this not timely because the hearing officers rol substantive due process against the canny based on the conduct of the hearing officer in the cammies culpability is based on allegedly its failure to trying the hearing officer so that he was in that competent to do the job he was called upon to do and that's the alleged harm and that didn't occur to the hearing occurred and the damage that would come from that would arguably be just the continued stigma plus the inability to get her job back understood just givens and i fully appreciate the pallies argument in your position on that arc our position is that is that the harm occurred that that the hearing officers role is is not something that can cause a constitutional violation in the sense so to judge davis question to counsel what what what if the the here officer had had reached a different decision to be a bad decision but had been trained that can versus harris the u s supreme court said that it goes beyond  beyond just fair to train the municipality but the county in this instance has to have been deliberately indifferent to the rights of its inhabitants and as the district court found on page nine of its opinion that that the plaintiffs complaint does not  go far enough to allege that variety of of a due process going all in one could argue whether it's ultimately a good argument or not that you know child abuse is different because the stigma is inherently gray the cots eclipse's her greit because of the existence of this registry and so arguably a governmental entity would know of the importance of having trained incompetent people and that knowledge arguably if it's no training occurred could go beyond me probably the knowledge or arguably the knowledge plus the year to act in those circumstances might be characterized as deliberate indifference rather than instance paragraph thirty six that the about the county through its policy ephedrine to train social workers deprive her of her substantive due process and and that in paragraphs thirty four and thirty five which i think are what the  focusing on says that the harm is by designating her as a child abuser on the central registry so that's the way the plaintiff has defined her harm and you know i'm fully appreciating that should be rid as meaning only the that but you know but i would i would ask the panel to consider some other six circuit panels how they've addressed situations in similar situations in the casa case we cite in our pallies brief the plaintiffs children were removed from her home and voluntarily followed by the next day hearing that she that she had whether or not they could have taken her children in the six sort of panel held that the precipitating event was the removal of her children from her home not the outcome of the subsequent appellate process that culminated ten months later with her getting her children back and she filed a claim more than two years beyond the date that her children were removed from the home and so the six or a panel found that was barred similarly bishop another case we cited and our brief a bishop was a minor child expelled from the school and to begin with the panel analyzed the harm and the harm was discreet injury at the time the parents learned that the child was expelled and so they found that that discreet injury started the running of the sachi limitations when the child was expelled not in a combination of the appellate process through the department of education you had to part of education about it  difficulty with your responses to our questions focused on the harm occasion by the hearing officers decision you just focus on that i think you response to our more recent question can see that amended complaint could actually state arguably state a constitutional claim if the magic words liberty and difference were inserted and maybe a couple of additional facts were were added to an amended complaint and yet the district court here dismissed that claim with prejudice so it sounds like it could be repaired through an amended complain the hearing off the ah committee hearing officers decision a pelleas argument but that's what the so that goes to the argument other than limitation we are here only on the district court's decision or limitation and surely page nine stated that the way the complaint was plaid that the plaintiff didn't stay to harm but didn't grant leave to admit it did not and in the plaintiff the nastily from and i think it's also important in a procedural history that that this was this was alternatively a rule twelve c motion for judgment on the pleadings because the district court's record shows that the court has set an amended pleading schedule which elapsed after which the a pelleas filed their motion to dismiss below and you answer howard county in oh hi any different from candy's elsewhere other than the existence of this state statute i mean they're typically  say well it's not a corporate buy will typically counties or not corporations municipalities are counties are so what's different about if anything the best counties in ohio but i can only speak to counties in ohio but  treasurer and on and on and these comprise of the units of the local government well in the in the social workers here in the hearing office there are employed who where the structure the board of county authority the checks are all generated from the auditors office as the fiscal agent but the board is under ohio law is the appointing authority they appoint the director of the job family services in the employees  including the social workers and in the hearing officer here you wouldn't sue the county mayor although there is one you wouldn't sue the county commissioners although they exist you would sue the county and that's because the county is a recognizable entity and it's hard to believe that this county i mean doesn't have some status as a legal entity i think it makes more sense just givens when you look at i mean i think the cammies in a state are typically established  who who is going to be who is defined to be have committed to harm under menow the plaintiff is supposed to have named me who has to put us on notice of whose official policy practice or custom was the driving force behind the violence not as a commissioners are like any other official who might be sued in an official capacity or you know they could individually be sued or in a proper case in an individual capacity i mean i'm just having a little trouble wrestling with the it is a difficult issue the district courts below have gone both ways on  and there are two court of the state court of appeals cases one from coyote county one from franklin county and i'm happy to supplement after oral argument to show you that there is state decision a law that says you can't take an appeal to common pleas from the child abuse administrative procedures i know this specifically because shawn paid me to do the state appeal and i was very concerned that she had paid me for not and so in  franklin county the courts of appeals decisions that say that specifically and in this case the prosecutor was aware of that but he was so disappointed in this the hearing officers decision that he told me that he wasn't going to raise the issue i would like to make an effort at answering your question about  to district court indicate that there was a single instance of constitutional injury and they said that's not the district so that's not sufficient for policy but there's case cases out of the six circumstance of the proposition that a single constitutional injury can constitute a policy in practice but as a general matter the court would correct on that away right but i think there's an exception that says that when the task is reoccurring and here child abuse hearings are reoccurring there are hundreds of them a year well yeah but we don't know reoccurring and is foreseeable to the county that the failure to train could result in constitutional injury that that's a sufficient policy in practice and so i'm relying on those those cases from this court on that point of the district court to dismiss