[00:00:01] Speaker 04:
Good morning, your honors, and may it please the court.

[00:00:03] Speaker 04:
Emma Rodriguez for Mr. Williams and Mr. Faulkner.

[00:00:06] Speaker 04:
I've reserved five minutes for my co-counsel's rebuttal.

[00:00:11] Speaker 04:
It appears that both parties now agree that the district court's reasoning was incorrect.

[00:00:17] Speaker 04:
The state raises a new issue that the district courts had no opportunity to consider, the due process claims in both complaints.

[00:00:26] Speaker 04:
Now the due process claims are just one of multiple claims for both clients, so both cases must necessarily return to the district courts.

[00:00:36] Speaker 04:
The fundamental question here is whether this court should dismiss the due process claims before the district courts ever had the opportunity to consider them.

[00:00:47] Speaker 04:
And the answer to that question is no.

[00:00:50] Speaker 04:
There's a second issue in Faulkner alone.

[00:00:53] Speaker 04:
The district court in Faulkner's case made a finding of fact that Faulkner knew or should have known of the legal deductions in 2008.

[00:01:01] Speaker 04:
And it was legal error for the district court to do so because the district court did not take his allegations as true, made inferences against him rather than in his favor, and thus did not construe his complaint liberally.

[00:01:15] Speaker 02:
Let me ask you a question about that point.

[00:01:20] Speaker 02:
Mr. Faulkner, I think it was in his TRO application, says, I grieved this policy in 2008.

[00:01:28] Speaker 02:
There's nothing contrary to that in this complaint.

[00:01:33] Speaker 02:
Why can't the court take judicial notice of that admission?

[00:01:39] Speaker 02:
It doesn't affect the concession for the last two years.

[00:01:43] Speaker 02:
Why can't the court take judicial notice of that admission and find that he's time-bored with respect to anything that falls outside the two-year period?

[00:01:53] Speaker 04:
For two reasons, Your Honor.

[00:01:54] Speaker 04:
First, because this case was dismissed on PLRA screening, it incorporates the standard on motion to dismiss.

[00:02:01] Speaker 04:
So this court is confined to the four corners.

[00:02:03] Speaker 02:
Well, except there's lots of case law, I think, that says on a motion to dismiss.

[00:02:07] Speaker 02:
You could also take into account pleadings filed by the defendant in the district court that are outstanding at the time.

[00:02:18] Speaker 02:
So I'm not sure that the court is restricted to the four corners of the complaint.

[00:02:23] Speaker 02:
When Mr. Faulkner filed something and said in it, I grieved in 2008.

[00:02:30] Speaker 04:
Well, even if this court considers the TRO and the attached declaration, which I submit that it shouldn't, the TRO and its declaration are an example of a factual dispute that the district court is best suited to resolve.

[00:02:45] Speaker 04:
In the TRO, Mr. Faulkner does say that he grieved the new deduction policy in 2008.

[00:02:51] Speaker 04:
But in his declaration, he says that he did not know of the deduction policy until 2021 when he was granted access to a resource library.

[00:03:00] Speaker 04:
And so those two statements, both taken as true as is the standard at this stage, would suggest an exact example of a dispute of fact that the district court is best suited to resolve.

[00:03:15] Speaker 01:
Do we know, with respect to Mr. Williams's claim, what the accrual date is, when in December?

[00:03:27] Speaker 04:
Mr. Williams did not allege the exact date of his deduction in December of 2019.

[00:03:33] Speaker 04:
He did represent that that date was December 23rd, 2019, in his original opening brief, which was replaced by our opening brief.

[00:03:42] Speaker 02:
But that wasn't in front of the district court, was it?

[00:03:44] Speaker 04:
No, it was in front of this court, which was then replaced by our brief.

[00:03:48] Speaker 02:
So in front of the district court, what did he say?

[00:03:51] Speaker 04:
In front of the district court, he only alleged that the deduction occurred in December of 2019.

[00:03:56] Speaker 01:
Does that matter for purposes of the statute of limitations?

[00:04:00] Speaker 04:
Well, if this case was remanded to the district court, the district court would then grant Mr. Williams the leave to amend to allege that exact date, which is within this two-year statute of limitations.

[00:04:13] Speaker 04:
And because Mr. Williams did not plead that he didn't know about the policy, because he did file a similar case in 2010 about the deduction policy,

[00:04:23] Speaker 04:
his accrual date matches with the date of deduction.

[00:04:26] Speaker 04:
So the December 2019 deduction, if within the last two years before he filed his complaint, is timely.

[00:04:35] Speaker 04:
Turning back to the first issue, the due process claims.

[00:04:40] Speaker 04:
The Ninth Circuit has held that it will decide matters in the first instance only if it can do so beyond any doubt where the outcome is certain.

[00:04:49] Speaker 04:
And our clients due process claims cannot be resolved beyond any doubt at the Ninth Circuit.

[00:04:54] Speaker 04:
At this stage, for due process, the required analysis is the Matthews versus Eldridge test.

[00:05:00] Speaker 04:
And as both parties agree, that test is context-based and fact-specific.

[00:05:05] Speaker 04:
And the records here simply do not have enough facts for this court to conduct the full analysis.

[00:05:12] Speaker 04:
This court has even held that the full Matthews analysis cannot be conducted at the pleading stage on an undeveloped record.

[00:05:20] Speaker 02:
Well, we do know.

[00:05:23] Speaker 02:
I tend to agree with you that we ought to ask the district court to deal with this issue in the first instance, but I'm not sure there's much more that either we or the district court need to deal with it.

[00:05:35] Speaker 02:
We know when the statute was passed.

[00:05:38] Speaker 02:
We know when the statute changed.

[00:05:40] Speaker 02:
We know that at least in Mr.

[00:05:43] Speaker 02:
I think it's Mr. Faulkner's case, but I think in both cases the judgments of the Superior Court said deduct at the rate provided by the first statute and that the agency later deducted at the rate provided by the second statute.

[00:05:58] Speaker 02:
So it seems to me the question of whether your clients had a due process right

[00:06:03] Speaker 02:
to only have it deducted at the first level is one that we really don't need any more facts for.

[00:06:10] Speaker 02:
What other facts would we need to decide this?

[00:06:14] Speaker 04:
Well, Your Honor, we really don't have a clear picture of what the current process that was provided to Mr. Williams and Mr. Faulkner was.

[00:06:22] Speaker 02:
Well, there was no process at all.

[00:06:23] Speaker 02:
Everybody agrees that the agency shifted from 20% to 30% because it's more complicated.

[00:06:32] Speaker 02:
It shifted from one method of deduction from prison accounts to satisfy restitution to another.

[00:06:40] Speaker 02:
The question is whether or not that shift

[00:06:44] Speaker 02:
deprived your client of a liberty or property interest.

[00:06:48] Speaker 02:
And I'm not sure what more facts we need to determine that.

[00:06:53] Speaker 02:
I must say, I'm still inclined to think we should send it back and let the district court address it at the first instance.

[00:06:58] Speaker 02:
I'm just pushing back a little bit at your notion that we need a more fully developed record.

[00:07:04] Speaker 04:
Well, Your Honor, the ADC has conceded that Mr. Williams and Mr. Faulkner have a property interest in their inmate trust account funds.

[00:07:12] Speaker 02:
No one doubts that.

[00:07:14] Speaker 02:
The question is whether they have a property interest in the order that would allow a lower rate of deduction than the rate that's now occurring.

[00:07:24] Speaker 04:
Well, on the second prong of the Matthews test, the risk of erroneous deprivation under the current procedure, I do think that it is relevant that Mr. Faulkner and Mr. Williams had a reliance interest in their sentencing orders being followed.

[00:07:38] Speaker 04:
And because we don't have many facts or hardly any facts at all about what the current procedure really looks like, we know for- Well, I guess that's kind of an interesting thing to say, because presumably your clients

[00:07:54] Speaker 01:
are need to be aware of whatever process and whatever process, whether they were due process or not, whatever process they got is within their knowledge, is it not?

[00:08:03] Speaker 04:
Yes, your honor.

[00:08:04] Speaker 01:
So what further development beyond the pleadings would be necessary to decide that?

[00:08:10] Speaker 04:
Well, neither pleading really describes the pre-deprivation process except for Mr. Williams alleges that when he grieved the deduction policy, he was told he couldn't grieve it and that was the end of his process from the ADC.

[00:08:24] Speaker 02:
But you're not really complaining that he wasn't given a process at ADC.

[00:08:30] Speaker 02:
You're complaining that they just had no right to go to the second statutory method of deduction because he had a protected property interest in the first right.

[00:08:42] Speaker 02:
So I'm still, this is not really a procedural due process case.

[00:08:46] Speaker 02:
This is a case in which you're claiming he was deprived of a property interest by the change in the law.

[00:08:52] Speaker 02:
And so it's why I'm having some difficulty figuring out what other facts we need.

[00:08:56] Speaker 04:
Well, I would respectfully disagree, Your Honor.

[00:08:58] Speaker 04:
I think we are alleging both a procedural due process claim and a deprivation of property due to the application.

[00:09:09] Speaker 04:
of this policy to essentially reopen a final sentencing order.

[00:09:13] Speaker 04:
What was at issue in the answering brief in these cases was specifically the Matthews analysis to the procedural due process question.

[00:09:24] Speaker 04:
And so the Matthews analysis is what we contend cannot be conducted at this court and an issue that cannot be resolved here because it is a fact-based analysis.

[00:09:38] Speaker 04:
And as a threshold question, the ADC has not provided any justification for this court to defer from the well-established general rule that the Ninth Circuit doesn't consider issues in the first instance that were not raised below.

[00:09:57] Speaker 04:
If there are no further questions, thank you for your time.

[00:10:00] Speaker 01:
Thank you, Ms.

[00:10:01] Speaker 01:
Rodriguez.

[00:10:06] Speaker 01:
Ms.

[00:10:06] Speaker 01:
Baines.

[00:10:15] Speaker 03:
Good morning, your honors.

[00:10:16] Speaker 03:
May it please the court.

[00:10:17] Speaker 03:
My name is Rebecca Baines on behalf of the state of Arizona, which has appeared as an amicus in these consolidated cases.

[00:10:24] Speaker 03:
The Arizona legislature has specifically spoken as to how the Arizona Department of Corrections, Rehabilitation, Reentry is to collect restitution from inmates in its custody.

[00:10:36] Speaker 03:
And for over 15 years, the legislature has mandated the department collect at least 20% of all funds deposited into an inmate's account.

[00:10:46] Speaker 03:
There really is no dispute that the department was following that statutory mandate.

[00:10:53] Speaker 03:
And the plaintiff's attempts to challenge those practices through a due process claim

[00:11:00] Speaker 03:
should fail.

[00:11:01] Speaker 03:
And the state, as plaintiffs have pointed out, we agree that it appears that the district court's basis for dismissal was incorrect.

[00:11:10] Speaker 02:
Stop there for a second.

[00:11:12] Speaker 02:
Once we all agree on that, and I think that's in the record, the district judge dismissed this case on screening.

[00:11:20] Speaker 03:
Correct.

[00:11:21] Speaker 02:
So the merits were never briefed to the district judge.

[00:11:25] Speaker 02:
I know we have the power to address legal issues in the first instance, but

[00:11:31] Speaker 02:
just as a matter of judicial economy and efficiency shouldn't we just say given your concession in the case district judge you made a mistake there's other issues in these cases take it back you're not at screening anymore but people file motions to dismiss you can file the same

[00:11:51] Speaker 02:
motion that you filed in your appellate brief here, and the district judge can deal with the case.

[00:11:57] Speaker 02:
What your friend says, and I think she's right, is our usual procedure is that we don't take up issues not addressed below.

[00:12:05] Speaker 02:
That would seem to me to apply with special force when the dismissal at the district court was at the screening stage.

[00:12:14] Speaker 02:
Why shouldn't we just send it back?

[00:12:16] Speaker 03:
Well, I agree that that is, of course, the usual practice.

[00:12:18] Speaker 03:
And this case does present somewhat of a unique circumstance.

[00:12:22] Speaker 03:
And I think the name one, although these other issues that we have raised were not presented to the district court, now on appeal, we have submitted a brief.

[00:12:30] Speaker 03:
And the plaintiffs have had the opportunity to respond to that brief.

[00:12:34] Speaker 03:
So I think it is in the interest, in this case, of sort of economy and efficiency to raise these issues that have been briefed at this opportunity that this court has.

[00:12:46] Speaker 02:
And I think- That's true in every case in which an issue is raised for the first time on appeal.

[00:12:50] Speaker 02:
You've briefed it.

[00:12:51] Speaker 02:
The other side's answered it.

[00:12:53] Speaker 02:
It'd be quicker if we dealt with it without sending it back.

[00:12:56] Speaker 02:
But we do have this sort of default procedure of not doing that.

[00:13:00] Speaker 02:
Why should we depart from that here?

[00:13:03] Speaker 03:
I think the main reason is that, first of all, there was not the opportunity to bring it below.

[00:13:07] Speaker 03:
So I think that sets it apart from some of the other cases where a party sort of chose not to bring it.

[00:13:12] Speaker 03:
But also the fact that this is a legal issue.

[00:13:16] Speaker 03:
that the facts are developed to an extent that these questions can be answered and that no further sort of fact-finding or functions that are unique to the district courts are necessary in order to resolve at least the due process claim question.

[00:13:30] Speaker 01:
Well, what about then the statute of limitations questions?

[00:13:35] Speaker 01:
You're urging us to decide the due process issue.

[00:13:37] Speaker 01:
Of course, I think to get there we have to find that it's

[00:13:40] Speaker 01:
these claims have accrued, so are you conceding that they both have claims properly brought within the statute?

[00:13:49] Speaker 03:
Well, I believe to the extent that the plaintiffs have brought timely claims, that they nonetheless fail for the reasons that we've stated in our answering brief.

[00:14:00] Speaker 03:
We do address the statute of limitations argument.

[00:14:02] Speaker 03:
And I would say, alternatively, if this court is not inclined in exercising its discretion to consider these issues, then the statute of limitations issue comes into play in determining sort of what potentially viable claims remain.

[00:14:15] Speaker 03:
And on that point.

[00:14:17] Speaker 02:
And you may ask you the same question as to those.

[00:14:19] Speaker 02:
Again, the district judge, because he thought that the entire claim was barred, didn't address those.

[00:14:28] Speaker 02:
To some extent, they depend on when a claim accrued.

[00:14:32] Speaker 02:
I think the discovery rule probably applies to some extent in these cases.

[00:14:37] Speaker 02:
Again, why aren't these issues that we ought to better send back to the district judge for him to explore?

[00:14:42] Speaker 03:
I think what this court can determine based on the record that it has and the record before this court is that at the very least both the plaintiffs were aware of the legislative change and the subsequent policy change well more than two years before when they filed their complaints.

[00:15:00] Speaker 03:
and that they both in fact sought to challenge ADCR's restitution collection practices.

[00:15:07] Speaker 03:
And those facts show that they should have, at least should have been aware of any subsequent injuries.

[00:15:12] Speaker 02:
Well, in Mr. Williams' case, I think sometimes I get too confused in my mind, but at least when we're only fighting about the December 2019 one, the complaint just doesn't make clear

[00:15:26] Speaker 02:
when that deduction was made.

[00:15:29] Speaker 03:
And I would agree with Your Honor.

[00:15:30] Speaker 02:
Because on that one, it should be sent back.

[00:15:32] Speaker 02:
If we don't address your due process claim to let him amend his complaint, the district court can then decide whether or not that one claim is barred or not, right?

[00:15:41] Speaker 03:
Yeah, I would agree that on that claim, if there's a remand, there has to be some further development as to the specific date in December.

[00:15:49] Speaker 01:
Again, I guess, wouldn't that be something that's within the state's knowledge, since they're the ones doing the deduction?

[00:15:55] Speaker 03:
I think it is something that could be known at this point in time just because of the unique procedural process.

[00:16:00] Speaker 03:
There was no discovery done, so we have relied entirely on what Williams alleged.

[00:16:04] Speaker 03:
I can't tell you what data was today.

[00:16:05] Speaker 01:
Right, and of course that's a lot to ask in amicus.

[00:16:08] Speaker 01:
We typically don't want to rely on Amiki for factual development on appeal.

[00:16:13] Speaker 03:
Yes, but I do think it's probably something without having done the research that could be relatively easily determined.

[00:16:20] Speaker 02:
So as to Mr. Faulkner's claim, he's got these conflicting statements supporting his injunctive relief claims.

[00:16:28] Speaker 02:
One's where he says, I grieved it in 2008.

[00:16:31] Speaker 02:
The other says, I didn't know about it until more recently.

[00:16:37] Speaker 02:
Again, this strikes me as the kind of thing that might be easy to dispose of the case on.

[00:16:42] Speaker 02:
when it goes back because someone will have a copy of the grievance or not have a copy of the grievance.

[00:16:48] Speaker 02:
But aren't those sort of fact-based determinations that we shouldn't make here?

[00:16:54] Speaker 03:
They can be fact-based determinations.

[00:16:56] Speaker 03:
And I think really what's relevant is that, again, kind of to the same answer that I had previously, that his statement in the application for the TRO

[00:17:04] Speaker 03:
that he grieved the restitution collection practices in 2008 is at least it contradicts the statement in his complaint and renders it an unreasonable inference in his favor that he did not know anything of the law.

[00:17:21] Speaker 03:
under accrual, if the plaintiff has reason to know of an injury, then that's when those claims accrued.

[00:17:27] Speaker 03:
So I think the point of our argument was that if there's a remand, it should be limited just to those claims that are based on deductions that occurred within two years of when the statute of limitations period.

[00:17:39] Speaker 03:
And we do recognize that if there is a remand, there would be some further fact finding to determine exactly which claims are time barred.

[00:17:49] Speaker 03:
on that issue.

[00:17:53] Speaker 03:
And then again, I think that to switch gears back to the due process claim, if this court were to exercise its discretion, I think that we've pointed this court to the state versus stocks decision out of the Arizona Court of Appeals, which really- And why isn't that distinguishable?

[00:18:10] Speaker 01:
Because the underlying order there was different.

[00:18:17] Speaker 03:
I think similar to the plaintiffs here, they both had restitution orders that mirrored the prior statutory language of restitution being collected from wages as opposed to restitution being collected from any deposits into an inmate account.

[00:18:35] Speaker 03:
And that's why the Arizona Court of Appeals had to look at Arizona statutes and to interpret the relevant statutes and ultimately came to the holding that the department was acting within its statutory obligations and was acting pursuant to state law and that it was not unlawful to collect restitutions from broader deposits into inmates' accounts, even if the restitution orders had different language in there.

[00:18:59] Speaker 01:
Did the court conduct a

[00:19:02] Speaker 01:
ordinary kind of standard federal Matthews v. Eldridge examination of the claim and stocks?

[00:19:10] Speaker 03:
I believe that it did conduct a due process analysis.

[00:19:13] Speaker 03:
I don't recall whether or not it got into each of the three factors.

[00:19:19] Speaker 03:
I do know that it discussed what the relevant property interests are that are at stake, which is this court has recognized in Ward versus Ryan that state law creates property interests.

[00:19:30] Speaker 03:
It discussed what sort of hearing would be necessary to satisfy due process, and it concluded, based on this court's decision in the Halverson case, that this was a legislative act and that no pre-deprivation hearing was necessary to satisfy due process.

[00:19:51] Speaker 03:
And then, again, it sort of ended with its discussion of state law.

[00:19:55] Speaker 02:
And as I read the Court of Appeals,

[00:19:59] Speaker 02:
disposition in this case, it focuses on procedural due process, doesn't it?

[00:20:04] Speaker 03:
Yes.

[00:20:05] Speaker 02:
And maybe I'm wrong.

[00:20:08] Speaker 02:
I got a little pushback from your friend on this.

[00:20:10] Speaker 02:
But I think this is also a claim that says we had a fixed property, right, because of our judgments, and you couldn't change it.

[00:20:20] Speaker 02:
And that strikes me as not so much a procedural due process claim, but a substantive due process claim.

[00:20:26] Speaker 02:
Whether I'm right or wrong about that, am I correct in thinking the Court of Appeals didn't deal with that kind of claim?

[00:20:33] Speaker 03:
The Court of Appeals did appear to just have addressed a procedural due process claim in this Doc's case.

[00:20:39] Speaker 03:
But in any event, I think that it's relevant in the way that that court determined relevant issues of state law, including that I meant in their interpretation of statutes and the relevant property interest.

[00:20:49] Speaker 03:
So that's why we brought it to this court's attention.

[00:20:52] Speaker 03:
I think it addresses at least some of the claims that were brought in this case.

[00:20:59] Speaker 03:
So at least some of it can be affirmed on that basis.

[00:21:02] Speaker 03:
And then just a final point as to the statute of limitations, argument that we have put forth in our brief as far as the law of accrual and any limited viable claims that remain would apply to any of the claims that the plaintiffs have brought, including like the equal protection claim and Eighth Amendment claim that I believe Mr. Faulkner raised.

[00:21:21] Speaker 03:
So I'm happy to answer further questions from this court.

[00:21:26] Speaker 01:
Thank you.

[00:21:27] Speaker 01:
Thank you, Ms.

[00:21:27] Speaker 01:
Baines.

[00:21:36] Speaker 01:
Ms.

[00:21:37] Speaker 01:
Carrero.

[00:21:46] Speaker 00:
May it please the court, Remy Carrero also for Mr. Williams and Mr. Faulkner.

[00:21:52] Speaker 00:
Your honors are correct.

[00:21:53] Speaker 00:
The open questions before this court require factual inquiries that are best suited for the district court's determination.

[00:22:01] Speaker 00:
Judge Hurwitz, your questioning about judicial economy is correct as well.

[00:22:05] Speaker 00:
Judicial economy in this case points in sending this case back to the district court.

[00:22:10] Speaker 02:
Well, your friend says, and I think there's some

[00:22:13] Speaker 02:
forced to it, the most economic way to dispose of this case would be dispose of it today.

[00:22:18] Speaker 02:
And we'd save the district judge from more work, and we're already here working.

[00:22:24] Speaker 02:
So why does judicial economy serve by continuing to keep this case alive?

[00:22:29] Speaker 00:
Well, Your Honor, first I would point to the fact that the uncontested claims must be returned to the district court.

[00:22:34] Speaker 02:
Well, unless, as your friend says, they fail on the merits.

[00:22:38] Speaker 00:
Well, there are uncontested merits-based claims for both of our clients.

[00:22:42] Speaker 00:
Mr. Williams brought an equal protection claim, which has not been contested at this level, and Mr. Faulkner brought an Eighth Amendment and breach of contract claims, which have also not been contested at this level.

[00:22:53] Speaker 00:
So those claims must return.

[00:22:54] Speaker 00:
And then the question of accrual requires a fact-based inquiry.

[00:22:58] Speaker 00:
As you pointed out with Mr. Williams, we don't know

[00:23:00] Speaker 00:
the exact date of the December deduction.

[00:23:02] Speaker 00:
So that's not something that this court can resolve at this time.

[00:23:06] Speaker 00:
And with Mr. Faulkner, there is a conflicting statements that must be resolved to determine that question of accrual as well.

[00:23:14] Speaker 00:
And that requires inquiries that are best suited for the district court.

[00:23:17] Speaker 00:
So resolving those questions here, one, we don't really have the facts to actually do so, so we wouldn't be saving any judicial economy and their best return to the district court.

[00:23:27] Speaker 00:
Now, on the procedural due process claim, first, Your Honor, stocks does not control this case.

[00:23:34] Speaker 00:
First, this court should not reach stocks because the ADC has pointed to no authority as to why this court should consider an issue in the first instance.

[00:23:41] Speaker 00:
That wasn't raised below.

[00:23:43] Speaker 00:
But second, even if it did, stocks is not binding on this court.

[00:23:47] Speaker 02:
Well, I'm trying to figure out still.

[00:23:49] Speaker 02:
I'm not sure it matters, if you're right, that we ought to send the whole mess back to Judge Reyes.

[00:23:54] Speaker 02:
But I'm trying to figure out what your procedural due process claim is.

[00:24:00] Speaker 02:
If you grieve the policy, and the agency said, as it appears to be the state of Arizona's position, we have no discretion here.

[00:24:09] Speaker 02:
There's a new statute we've got to take out more.

[00:24:12] Speaker 02:
You don't have to exhaust that in order to come to us with your 1983 claim.

[00:24:16] Speaker 02:
So what process do you want?

[00:24:19] Speaker 00:
Your honor, I think it's important to clarify, there are both issues here.

[00:24:24] Speaker 00:
Procedural due process claim and a claim about the substance.

[00:24:28] Speaker 02:
What process do you want that would put you in any different position?

[00:24:32] Speaker 02:
Do you really think the Department of Corrections is going to say, you're right, we should ignore the statute and go back to the old policy?

[00:24:40] Speaker 02:
I mean, I'm just not sure why more process is going to help you.

[00:24:43] Speaker 00:
The process that would help would be some hearing on the merits of the claim.

[00:24:49] Speaker 00:
One question here that hasn't been addressed is whether it was appropriate for the ADC to apply the new deduction policy to Mr. Williams and Mr. Faulkner to effectively... Their position is, I think rather clearly, yes it is because the legislature told us to.

[00:25:05] Speaker 02:
Now, that may be wrong as a matter of law.

[00:25:07] Speaker 02:
That's your substantive claim.

[00:25:09] Speaker 02:
But I'm just trying to figure, do you really want to go back to the DOC and have a process?

[00:25:15] Speaker 02:
I'm just not sure that helps you at all.

[00:25:17] Speaker 00:
Well, our clients would request that there is some process, some point at which they can be heard on that very issue.

[00:25:23] Speaker 00:
And that is what hasn't happened here.

[00:25:25] Speaker 02:
You're in the district court if we send you back.

[00:25:28] Speaker 02:
You can be heard on the issue.

[00:25:30] Speaker 02:
Do you really want to be heard in the agency?

[00:25:33] Speaker 00:
We believe that that's an open question.

[00:25:36] Speaker 00:
Some procedure would be necessary, and that's one of the reasons this case is different from the case of stocks.

[00:25:42] Speaker 00:
There, the court found that there was proper post deprivation process, which meant that the procedural due process claim was constitutionally acceptable.

[00:25:50] Speaker 00:
But here, there has been no post deprivation process, no pre deprivation process.

[00:25:55] Speaker 00:
So this in and of itself is a threshold level question.

[00:25:58] Speaker 00:
But we agree with you, there's a substantive

[00:26:00] Speaker 00:
property interest here.

[00:26:02] Speaker 02:
And if your substantive claim fails, does your procedural claim also fail?

[00:26:08] Speaker 00:
No, Your Honor, I don't believe it does because there's still a question of what process is required prior to or post this particular deprivation of property here.

[00:26:19] Speaker 00:
I recognize that I am running out of time, so I just wanted to say quickly that the question of accrual is also a fact-based inquiry that must be returned to the district court.

[00:26:28] Speaker 00:
And if there are no further questions from Your Honors now.

[00:26:33] Speaker 00:
Thank you for your time.

[00:26:33] Speaker 01:
Thank you, Ms.

[00:26:34] Speaker 01:
Guerrero.

[00:26:35] Speaker 01:
I'd like to thank both counsel for excellent arguments this morning, and in particular, Berkeley and Mr. Fernholz for your supervision of our students.

[00:26:47] Speaker 01:
Good job.

[00:26:54] Speaker 01:
And that case is submitted.

[00:26:55] Speaker 01:
Those two cases will both be submitted.