[00:00:00] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:00:04] Speaker 00: My name is Gary Watt, and I represent the Governor of the State of California, the California Department of Corrections and Rehabilitation, the California Department of State Hospitals, and the California Department of Finance. [00:00:20] Speaker 00: Your Honors, this Court has said in the prison remediation setting that defendants bear the burden of establishing [00:00:29] Speaker 00: why any proposed changes to remedial plans or orders meet the defendant's obligations. [00:00:37] Speaker 00: This appeal is a simple one. [00:00:39] Speaker 00: It's simply about giving defendants the opportunity. [00:00:43] Speaker 03: Well, if it's really that simple, I'm pretty dumb, because this has been going on a long time. [00:00:48] Speaker 03: So I don't know if this is simple for anyone here. [00:00:52] Speaker 00: Thank you, Your Honor. [00:00:54] Speaker 00: I wouldn't call the case simple, but I'd certainly call [00:00:57] Speaker 00: what the defendants are asking here for simple, at least in terms of labels, which is the attempt to meet their burden that the case law says that they bear. [00:01:06] Speaker 00: So what I plan to do here this morning is to address the jurisdictional question that this court asked a couple of days ago in its order. [00:01:15] Speaker 00: And then if I don't run out of time, I will address the merits issue, which is whether the district court was correct in requiring [00:01:25] Speaker 00: the defendants to file a Rule 60B motion and to unwind the 2017 order before it could get its plan, its telepsychiatry plan, considered on the merits. [00:01:39] Speaker 00: I'll start with 28 United States Code Section 1292A, which was the focus of this Court's recent order. [00:01:49] Speaker 00: This Court has said that when looking at [00:01:52] Speaker 00: orders to determine that are not obvious on their face, whether they're injunctions or they're not arising out of a motion for an injunction, that the court looks to see if the order commands or prohibits conduct. [00:02:06] Speaker 00: If it does, it's called an injunction. [00:02:10] Speaker 00: And if the court sees that, then it drills deeper. [00:02:14] Speaker 00: And in fact, it asks three questions. [00:02:17] Speaker 00: It asks what the practical effect of that order is. [00:02:21] Speaker 00: It asks whether there are serious consequences to the order, and it asks whether an effective appeal could be had later. [00:02:30] Speaker 00: Here, the practical effect of the court's order on appeal is that it's injunctive. [00:02:36] Speaker 00: It mandates conduct on the part of defendants. [00:02:40] Speaker 00: They must include what the court has now approved as the final telepsychiatry policy in the program guide. [00:02:49] Speaker 00: which is the mental health care remedy in this case, and they must implement it, they must monitor it, and they must report on it. [00:03:00] Speaker 00: But it doesn't just mandate contact on the element of practical effects. [00:03:05] Speaker 00: What it also does is it prohibits conduct. [00:03:09] Speaker 00: It prohibits the defendants from offering telepsychiatry at all unless on-site telepsychiatrists are not available. [00:03:18] Speaker 00: for some classes, and for some classes of inmates in the Coleman class, there's no use of telepsychiatry whatsoever. [00:03:27] Speaker 00: And there's more, but I'll stop there and say that this order has the practical effects that this court looks for under 1292 to see if it's an injunction. [00:03:37] Speaker 03: So if we determine that the April 2023 order is not a final judgment, should we dismiss the appeal? [00:03:44] Speaker 03: Or you say it's appealable as an injunction, or what are you saying? [00:03:48] Speaker 00: I'm saying it's an appealable injunction under 1292A. [00:03:53] Speaker 00: That's one way to get there. [00:03:55] Speaker 00: But in my mind, the other way to get there was under final order jurisdiction. [00:04:00] Speaker 00: And that's what we argued in the brief because, foolish of me, I suppose, but I presume that that was so clear that there was a jurisdiction there. [00:04:09] Speaker 00: And let me explain why. [00:04:10] Speaker 00: Under 1291, [00:04:15] Speaker 00: This court's cases look to see if it's the final order in a line of orders on the particular issue. [00:04:25] Speaker 00: And then what it looks to see under cases like Armstrong and Flores versus Garland, what it looks to see is what the next proceedings would be like. [00:04:35] Speaker 00: And let me give an example and then let me apply it to this case if I can. [00:04:39] Speaker 00: In Flores versus Garland, [00:04:41] Speaker 00: The determination was that certain minors could not be housed in short-term housing. [00:04:47] Speaker 00: For example, tenderloin apartments and so on. [00:04:50] Speaker 00: They can't do that. [00:04:52] Speaker 00: The order directed them to come up with a plan. [00:04:56] Speaker 00: And when they appealed, first the district court said, you can't appeal. [00:05:00] Speaker 00: It's not an appealable order. [00:05:02] Speaker 00: But when the defendants appealed to this court, this court said, [00:05:08] Speaker 00: The future appeal will be about the efficacy of the plan to get those miners out of the housing. [00:05:15] Speaker 00: It won't be about the order saying you can't house them there. [00:05:19] Speaker 00: And so that's finality in the sense of Flores. [00:05:22] Speaker 00: and in the sense of Armstrong. [00:05:23] Speaker 03: Well, I see when I'm sort of looking at all of this that I don't really want to get into the next case, but you sort of look at the whole thing here. [00:05:31] Speaker 03: It's been going on for 20 years. [00:05:33] Speaker 03: There's certain things that the state has not appealed in the interim. [00:05:40] Speaker 03: And I understand that, trust me, the last thing I want to do is run the prisons. [00:05:46] Speaker 03: And I understand that the prisons inherently have issues that [00:05:51] Speaker 03: They're entitled to certain deference in how they do things. [00:05:54] Speaker 03: But somehow this 20-hour thing came into place at some point in the past, and it's carried forward. [00:06:02] Speaker 03: And you were saying now in this appeal that the district court abused its discretion, either that it committed legal error, I'm not sure, or it committed legal error or both when it directed the defendants to file a Rule 60B motion. [00:06:19] Speaker 03: to get at the issues that you wanted to address, right? [00:06:22] Speaker 00: Not exactly, Your Honor. [00:06:25] Speaker 00: The 20-hour requirement you just referred to is the issue in the next appeal. [00:06:29] Speaker 03: I know it is. [00:06:30] Speaker 03: I know it is. [00:06:31] Speaker 03: I understand that, but I've looked at both of them. [00:06:34] Speaker 03: I had to look at both of them because both cases are on today. [00:06:38] Speaker 03: But the cases that are cited in your brief, like the City of Los Angeles Harbor, [00:06:43] Speaker 03: versus Santa Monica and the United States versus Smith indicate that the district court had the inherent authority to consider your proposed revisions. [00:06:54] Speaker 03: What's your best authority that the district court was compelled to consider your proposed revisions on the merits, abused its discretion in directing you to file a rule [00:07:07] Speaker 03: 60 motion and how the defendants are harmed by being directed to file a Rule 60 motion, because you seem to want to bring in, you've got this other person that says there's another way to do it, but why can't you do that on a Rule 60 when this has been going on for 20 years and you're asking the court to change everything that happened in the past based on this new doctor or declaration? [00:07:33] Speaker 00: Well, first of all, a Rule 60 motion would be required. [00:07:37] Speaker 00: Now, let me answer that pragmatically. [00:07:39] Speaker 00: Could we file a Rule 60 motion? [00:07:42] Speaker 00: Of course we could. [00:07:43] Speaker 00: Could we ask the court to reset? [00:07:45] Speaker 00: We could ask the court to reset the trial that never happened. [00:07:49] Speaker 00: We could. [00:07:50] Speaker 04: Why didn't you do either of those instead of appealing? [00:07:53] Speaker 00: Because the issue is whether we have to, Judge Koh. [00:07:56] Speaker 00: The issue is whether we have to. [00:07:58] Speaker 00: Rule 60 could be rejected after the first paragraph [00:08:02] Speaker 00: if the court determines that the 2017 order was a case management order. [00:08:07] Speaker 00: And let's focus on the 2017 order for a moment. [00:08:11] Speaker 00: Yes, it had limits in it. [00:08:14] Speaker 00: It had limits. [00:08:15] Speaker 00: Let's talk about how this went down. [00:08:18] Speaker 00: Telepsychiatry was never part of the 1995 judgment. [00:08:22] Speaker 00: Its use started evolving in 1998. [00:08:27] Speaker 00: It grew slowly in the intervening years, and then there never been telepsychiatry as part of the remediation in this case. [00:08:35] Speaker 00: And Your Honor, that's what makes it, at least at the threshold level, that's what gives the defendants the opportunity [00:08:41] Speaker 00: to alter the remedial plan. [00:08:43] Speaker 03: Well, but it seems like you didn't object to certain things who went along, there was a special master, everything went along, and then the state didn't do things as well. [00:08:53] Speaker 03: So you have a court that's kind of frustrated with the state for not doing even [00:09:00] Speaker 03: a portion of what they've somehow agreed to do, and then you want to Judge Mueller right there, just based on this declaration that you presented, to get rid of what had been going on for 20 years. [00:09:13] Speaker 03: And she said, no, go back, file a 60B, litigate that, whatever that is. [00:09:20] Speaker 00: But go back for what, Your Honor? [00:09:23] Speaker 00: For what on the 2017 order? [00:09:25] Speaker 00: And let me speak to that. [00:09:27] Speaker 00: Defendants came forward. [00:09:29] Speaker 00: with their embryonic telepsychiatry policy. [00:09:32] Speaker 00: There was no policy. [00:09:35] Speaker 00: The court said, I'm not accepting this policy. [00:09:38] Speaker 00: Go to the special master and see if you can come up with a policy. [00:09:42] Speaker 00: There's still no policy. [00:09:45] Speaker 00: The court said, see if you can develop a policy. [00:09:48] Speaker 00: Work with the special master in good faith if you can. [00:09:51] Speaker 00: And that began what was essentially a four-year process to get to a policy. [00:09:58] Speaker 00: But something happens in 2018. [00:09:59] Speaker 00: In 2018, the special master, after a series of compromises, I don't think one can say it's defendant's policy anymore. [00:10:09] Speaker 00: If we don't cooperate, we're in contempt. [00:10:12] Speaker 00: We go to these sessions. [00:10:14] Speaker 00: We try to reach some sort of agreement. [00:10:16] Speaker 00: But that's not our policy. [00:10:18] Speaker 00: That's a different policy, right? [00:10:20] Speaker 00: So what happens in 2018? [00:10:23] Speaker 00: The special master goes back and reports to the court, you gave me a deadline for a policy. [00:10:28] Speaker 00: Here's a proposed telepsychiatry policy. [00:10:31] Speaker 00: There's a lot of disputes about this policy that are not resolved. [00:10:36] Speaker 00: The court takes papers on it, issues a tentative ruling, and then conducts a hearing. [00:10:42] Speaker 00: And after the hearing, it changes its mind. [00:10:45] Speaker 00: And you asked about authority. [00:10:47] Speaker 00: And this goes to reliance. [00:10:49] Speaker 03: Well, I guess you were asking the court based on the declaration that you filed to change the policy to what your experts said, right? [00:10:56] Speaker 00: We were asking for an evidentiary hearing, and it could go down in two ways. [00:11:00] Speaker 00: It could be in the restoration of the hearing, and this brings me to what I was just about to say. [00:11:05] Speaker 00: In 2018, instead of ruling on the special master's submission, instead of ultimately resolving the objections that the parties had and the disputes they had about the policy that had just been submitted, the court said, I'm not going to rule on this. [00:11:21] Speaker 00: It's in the order. [00:11:23] Speaker 00: It's ER 628. [00:11:25] Speaker 00: Defendants must be given an opportunity, and this is the critical words, in the first instance [00:11:33] Speaker 00: to demonstrate why the expansion of telepsychiatry they seek will satisfy their Eighth Amendment obligations. [00:11:41] Speaker 04: So why didn't you ask for an evidentiary hearing to do just that? [00:11:45] Speaker 04: You could have presented evidence that would support your proposal. [00:11:49] Speaker 04: You could have gotten a special master to vet your proposal. [00:11:53] Speaker 04: From the record, based on the exact language you read, it sounds like the district court would have allowed you to do that if that opportunity had been requested. [00:12:01] Speaker 00: It did something else instead. [00:12:02] Speaker 00: It did what it always does, is it ordered the parties to go back to the special master and try to resolve the disputes that remained. [00:12:11] Speaker 00: It gave the special master time to come back, and it set a hearing. [00:12:15] Speaker 00: It set the hearing then. [00:12:17] Speaker 00: The hearing was set. [00:12:19] Speaker 00: But what happened was, Dr. Golding submitted a report, a whistleblower report. [00:12:24] Speaker 04: No, but I'm saying after it was vacated, after the evidence your hearing was vacated, why did you not request one? [00:12:30] Speaker 00: because we were ordered to go to settlement conference with Judge Drozd, and the settlement conference looked to be a resolution of disputed points in the policy, and the parties were ordered to see if they could resolve the disputes. [00:12:47] Speaker 00: Now, having never had the chance to show their own policy satisfied the Eighth Amendment requirements that we're supposed to have the opportunity to establish [00:13:00] Speaker 00: What the parties did was they reached the stipulation. [00:13:04] Speaker 00: And the stipulation is interesting because it preserved our rights to have that determination. [00:13:11] Speaker 00: The stipulation doesn't say that after the test period of 18 months, the parties will meet and confer to see if we fine-tune the special master's policy. [00:13:25] Speaker 00: The stipulation doesn't say modification shall be limited [00:13:30] Speaker 00: to tinkering essentially with the special master's policy. [00:13:34] Speaker 00: Rather, and in the spirit of what the exercise was, remember in 2020, the court says that it looks forward, sorry, yeah, in 2020, the court says it looks forward to seeing what can be learned about telepsychiatry, not the special master's policy, but the efficacy of telepsychiatry itself and the role that it could play. [00:13:57] Speaker 00: It's saying that in 2020. [00:13:59] Speaker 00: And my point is this. [00:14:01] Speaker 00: The language in the stipulation was the preservation of the defendant's right to present their policy. [00:14:09] Speaker 00: And it even provided a mechanism to do so by the parties submitting any proposed modifications, any revisions toward a final policy. [00:14:21] Speaker 00: And so the defendants did submit their revised telepsychiatry policy. [00:14:26] Speaker 00: And that's when the court said, oh, you can't do that. [00:14:28] Speaker 00: you have to go back and file a Rule 60B motion. [00:14:32] Speaker 03: But Your Honors... So, all right, what do you want us to do now? [00:14:36] Speaker 03: What do you want us to do now? [00:14:40] Speaker 00: What the clients would like you to do, Your Honor, is to do one of two things. [00:14:46] Speaker 00: To remand to the district court, to have it set this matter for a hearing [00:14:52] Speaker 00: not on the special master's hybrid policy, the result of all that sausage making and nobody getting what they wanted, but on the defendant's original telepsychiatry policy and the evidence supporting it. [00:15:06] Speaker 00: And everyone has the benefits of the 18-month test period. [00:15:10] Speaker 03: The court... So that hearing, would that vacate everything that's happened for 20 years? [00:15:14] Speaker 00: No. [00:15:15] Speaker 00: No, Your Honor, it wouldn't. [00:15:16] Speaker 00: First of all, everything that happened for 20 years [00:15:19] Speaker 00: This litigation is about 100 more things or 1,000 more things in the program guide than telepsychiatry. [00:15:28] Speaker 00: And nor would it stop the provisional policy right now from being the final policy. [00:15:33] Speaker 00: It's been ordered to be the final policy. [00:15:35] Speaker 00: It's been ordered to be added to the program guide. [00:15:39] Speaker 00: You don't even have to tell the court to stop. [00:15:42] Speaker 00: You just have to tell them to give the defendants the hearing they should have. [00:15:45] Speaker 00: And what will happen? [00:15:47] Speaker 00: What will happen? [00:15:49] Speaker 00: after actually weighing the evidence, after actually conducting the hearing, the court might say, no, you haven't shown me there's a problem here between telepsychiatry and on-site psychiatry. [00:16:02] Speaker 00: There's something going on here. [00:16:04] Speaker 00: I don't believe you've met your burden of proof under Graves versus Arpaio. [00:16:07] Speaker 00: You haven't met your burden of proof. [00:16:10] Speaker 00: That's what could happen. [00:16:11] Speaker 00: But what else could happen? [00:16:13] Speaker 00: The court could say, lo and behold, we've learned some things. [00:16:17] Speaker 00: And we should adjust this final policy to allow it to be used more frequently, to allow telepsychiatry to be used on certain classifications where it can't. [00:16:28] Speaker 00: And what's the result? [00:16:30] Speaker 00: What is the result? [00:16:32] Speaker 00: More treatment for the plaintiffs, more psychiatry appointments for the plaintiffs, more delivery of mental health care for the plaintiffs. [00:16:41] Speaker 03: So if you have to file a 60B, that hearing can still happen though, right? [00:16:46] Speaker 03: But you have to file a 60B first and be ... We have to jump over the Rule 60B threshold though. [00:16:53] Speaker 00: And the Rule 60B threshold is new law, new evidence, and that the 2017 order was a final order. [00:17:02] Speaker 00: But it wasn't a final order. [00:17:03] Speaker 00: It wasn't an appealable order. [00:17:05] Speaker 00: All it said was that for a starting point, [00:17:09] Speaker 00: We're not going to use this policy that you submitted, defendants. [00:17:13] Speaker 00: Special master, take these four control points. [00:17:17] Speaker 00: Let's call them limitations. [00:17:19] Speaker 03: Judge Mueller would hear that 60B, correct? [00:17:23] Speaker 00: Either way, she would hear this. [00:17:26] Speaker 03: Do you think that 60B is illusory and you would lose on a 60B and then you're stuck with whatever? [00:17:32] Speaker 00: That's right. [00:17:33] Speaker 00: Just as we would be stuck if we just asked to reset the hearing. [00:17:37] Speaker 00: I see I'm into my three minutes. [00:17:39] Speaker 03: Let me find out if my colleagues have any questions before I let you sit down. [00:17:44] Speaker 03: No, thanks. [00:17:45] Speaker 03: Okay, I'll give you three minutes. [00:17:47] Speaker 03: Thank you. [00:17:57] Speaker 03: Good morning. [00:17:58] Speaker 03: Are you adjusted? [00:17:59] Speaker 03: I can tell you're more my size here. [00:18:03] Speaker 02: Good morning, Your Honor. [00:18:04] Speaker 02: Can you hear me? [00:18:05] Speaker 03: Yes. [00:18:06] Speaker 02: Judge Graber, can you hear her okay? [00:18:08] Speaker 01: Yes, I can hear fine. [00:18:09] Speaker 01: Thank you. [00:18:12] Speaker 02: Good morning. [00:18:13] Speaker 02: My name is Lisa Ells. [00:18:14] Speaker 02: I represent the plaintiff class. [00:18:18] Speaker 02: The state just got up here and told you an entirely made up history. [00:18:23] Speaker 02: Today, thanks to the 2017 injunctive order and the parties, not the special masters, 2020 stipulated policy implementing it, the state has unfettered authority to provide care for over 75% of mentally ill patients in its prisons entirely by telepsychiatry and to use telepsychiatry for some patients at higher levels of care as well. [00:18:50] Speaker 02: But the state now wants to eliminate all of the guardrails on the use of telepsychiatry the court imposed after 1,000 pages of briefing and evidence in 2017. [00:19:04] Speaker 02: The state's proposed policy would allow 100% of patients, even those in suicidal crisis or confined to psychiatric hospitals, to never see a live psychiatrist again. [00:19:18] Speaker 02: In the face of this record, the state has identified no basis for reversal, assuming this court finds jurisdiction over this interlocutory case management order in the first place, which it should not. [00:19:30] Speaker 01: So I'd like to ask you about the finality question. [00:19:34] Speaker 01: The 2023 order, the April 2023 order, [00:19:42] Speaker 01: states that the earlier provisional policy is adopted as final and final is in caps and that the special master's recommendations are adopted and adopted is also in caps. [00:19:56] Speaker 01: So why isn't that a final order with respect to a segment of this matter or at least why isn't it injunctive [00:20:12] Speaker 01: within the meaning of 1292A. [00:20:17] Speaker 02: Taking your question as to 1291 final order first, in the Flores case, the court was instructed to look at whether the district court expressly contemplated future action. [00:20:34] Speaker 02: In this case, the 2023 order is merely effectuating the injunction from 2017, which required implementation of a policy within the limits of the 2017 order. [00:20:48] Speaker 01: The 2017 order anticipated future things. [00:20:52] Speaker 01: It set a bunch of conferences and so forth. [00:20:56] Speaker 01: So it was forward-looking. [00:21:02] Speaker 02: You're right, Your Honor. [00:21:04] Speaker 02: Excuse me, I didn't mean to cut you off. [00:21:06] Speaker 02: It was forward looking to the extent that it required implementation of a policy. [00:21:10] Speaker 02: But under the Armstrong 2010 decision, that is not enough to make it non-final. [00:21:17] Speaker 02: Essentially, what the court ordered here [00:21:19] Speaker 02: again after 1,000 pages of briefing and evidence, was it adopted certain injunctive limitations on the state's use of telepsychiatry while allowing it to be used for the vast majority of patients in the system. [00:21:33] Speaker 02: It then required the state to implement a policy within a year effectuating those limitations. [00:21:40] Speaker 02: And under the Armstrong 2010 decision, that is sufficient for finality. [00:21:45] Speaker 02: There was nothing more that needed to be done [00:21:47] Speaker 02: except to implement the policy according to the court's limitations. [00:21:50] Speaker 01: Except then the court issued another order in 2018, which also seemed to be forward-looking and require good faith efforts to resolve the remaining disputes. [00:22:04] Speaker 01: It has to me that both 2017 and 2018 have the feel of something that's provisional or a work in progress up until we get to 2023, which is clearly [00:22:17] Speaker 01: stated to be final, and there's a policy in its final. [00:22:23] Speaker 01: So why is that an impermissible reading of what happened? [00:22:28] Speaker 02: Well, two answers, Your Honor. [00:22:30] Speaker 02: First, in the 2018 orders, and there were multiple of them, the court very clearly said that its 2017 injunction was, in fact, setting mandatory limits. [00:22:41] Speaker 02: And this court actually affirmed the dismissal of the 2018 order appeal on that exact grounds, finding that the limitations in the 2017 order were mandatory, not permissive. [00:22:54] Speaker 02: They imposed an injunction. [00:22:56] Speaker 02: And the 2018 orders effectuated that, but did not modify it. [00:23:00] Speaker 02: And therefore, there was no jurisdiction. [00:23:02] Speaker 01: So I think under a law- This one modifies it, does it not? [00:23:05] Speaker 01: It's different than 2017, so why isn't this one [00:23:08] Speaker 01: If 2017 is an injunctive, why isn't this a new injunction, regardless of whether the other ones were or were not provisional? [00:23:18] Speaker 02: Well, Your Honor, I would say that the best argument is just to look back to the text of this court's 2019 order in this case with respect to the prior telepsychiatry appeal. [00:23:28] Speaker 02: So the 2017 order required implementation of a policy within a year that effectuated the limitations that the court imposed. [00:23:39] Speaker 02: So what happened here is after that, defendants had the opportunity under Rule 60 to establish that those limitations were not appropriate in 2018. [00:23:50] Speaker 03: Well, let's say if we affirm the district court here. [00:23:52] Speaker 03: I'm curious, I always like to, lawyers are so clever, that if we affirm the district court here, can the defendant still file a 60 motion, or are you going to say they can't? [00:24:08] Speaker 02: Oh, absolutely, and we said in our papers that they can. [00:24:10] Speaker 02: The court has invited this many times, starting in 2018. [00:24:16] Speaker 03: Would you agree that the court can consider the merits of defendant's proposed revisions or was it barred by prior orders or law of the case from considering the merits of the defendant's proposed revisions? [00:24:33] Speaker 03: They want to reconsider that. [00:24:36] Speaker 03: They want this telepsychiatry information to be reconsidered by the court and possibly modify what [00:24:44] Speaker 03: Either they've agreed to or what's been said before or whatever, and I'm seeing down the road that let's say even they get granted that opportunity, then you're going to say, oh no, no, no, no, there's law of the case. [00:24:57] Speaker 03: You can't reconsider this. [00:24:59] Speaker 03: There's no movement. [00:25:02] Speaker 02: We don't contest that the state could have slapped a Rule 60 pleading caption on these exact papers and filed a motion to modify. [00:25:10] Speaker 02: They could have done that at any point. [00:25:12] Speaker 02: They can do that today, but they don't want to meet the Rule 60 burden, and they say that in their papers. [00:25:19] Speaker 02: That is not a reversible error. [00:25:22] Speaker 03: What do you see as the impediment for them to meet the Rule 60? [00:25:27] Speaker 02: I mean, it imposes a burden on them to show that circumstances have changed. [00:25:33] Speaker 02: And under RUFO, and that's exactly what the court said in its papers, this is a case management order simply instructing them to follow federal procedure. [00:25:42] Speaker 02: And there is nothing that is an abuse of discretion in that. [00:25:44] Speaker 03: But you're basically saying they don't have a legitimate 60B. [00:25:48] Speaker 02: Well, we would contest that circumstances have, in fact, changed. [00:25:51] Speaker 02: But they certainly, for the same reason that we contested that he's changed the court. [00:25:55] Speaker 03: Well, I guess they're saying it's illusory. [00:25:57] Speaker 03: And so if we look at that declaration and say, someone should look at that and someone should assess it in the entire, is 60 really illusory? [00:26:09] Speaker 03: And should the court have set a hearing right here? [00:26:16] Speaker 03: to look at it. [00:26:17] Speaker 03: I mean, this has been going on for a very long time, and I have a feeling it may be going on for the rest of my natural life, that being said, but it would seem that at some point the state who has to administer this should be able to talk about telepsychiatry. [00:26:41] Speaker 03: Now, I don't know how that would come out. [00:26:46] Speaker 03: But it seems like they don't want to talk about it in the venue that the court says you should talk about it. [00:26:53] Speaker 03: You don't really want them to talk about it at all because you want to preserve the 20 hours, which seems pretty high. [00:27:01] Speaker 03: I mean, I don't know, not having been involved in all of that, I don't know that there's anything, I do 20 hours during the week. [00:27:10] Speaker 03: And you have what, 1,000 prisoners that supposedly are supposed to get 20 hours of [00:27:16] Speaker 03: a certain type of psychiatric treatment? [00:27:18] Speaker 03: Is that right? [00:27:19] Speaker 03: Your Honor, I think that you're conflating the two. [00:27:22] Speaker 03: No, I'm not conflating. [00:27:23] Speaker 03: I know, but it's hard not to look at what's on the other side of it, because it's still all one thing. [00:27:28] Speaker 02: I appreciate that, but that has nothing to do with telepsychiatry. [00:27:32] Speaker 02: This is telepsychiatry only, and that relates to a specific treatment modality that is not psychiatric in the inpatient program. [00:27:43] Speaker 02: The 20 hours is not particularly relevant here. [00:27:47] Speaker 03: So you say that the telepsychiatry has nothing to do with the 20 hours? [00:27:53] Speaker 02: Correct, Your Honor. [00:27:54] Speaker 03: Would they say the same thing? [00:27:55] Speaker 03: Is he going to get up and say the same thing? [00:27:57] Speaker 02: I believe so. [00:27:58] Speaker 02: I believe he will say that as well. [00:28:01] Speaker 02: OK, we'll find out. [00:28:03] Speaker 02: The only way in which they dovetail is that the state's proposed policy would allow for the use of telepsychiatry in the inpatient programs if it were adopted. [00:28:12] Speaker 02: However, again, the 20 hours is specific to structured therapeutic treatment, not psychiatric contacts. [00:28:19] Speaker 02: So it wouldn't actually have any effect on the 20 hour injunction. [00:28:25] Speaker 02: Um, but, but to your point, when should the state be able to raise these questions and have a determination? [00:28:32] Speaker 02: Uh, again, your honor, the, the rule 60 burden is clear and established because the 2017 order as this court has already held. [00:28:41] Speaker 03: Was anyone doing telepsychiatry in 2017? [00:28:45] Speaker 02: Yes. [00:28:46] Speaker 03: I mean, COVID kind of changed a lot of things for everyone admittedly. [00:28:50] Speaker 02: Well, yeah, I mean, so the state had been doing a small amount of telepsychiatry for years. [00:28:56] Speaker 02: It just had no policy or limitations governing how it was used. [00:29:00] Speaker 02: But I want to be very, very clear that the state has continued to talk about the special masters policy. [00:29:07] Speaker 02: The special master had nothing to do with this except effectuating the monitoring of the provisional policy and setting forth the recommendations that the court adopted as mandatory in 2017. [00:29:19] Speaker 03: And what part of this had the state agreed to and was there frustration on part of the district court that they hadn't done what they agreed to do? [00:29:27] Speaker 02: Well, the state did dispute that there should be any limitations in 2017, and they lost, and they didn't appeal that. [00:29:35] Speaker 02: So the 2017 limitations were fully litigated, and the state lost, and it chose not to appeal. [00:29:42] Speaker 02: It has to live with the consequences of that, which is that the Rule 60 RUFO standard applies. [00:29:48] Speaker 04: Can we go to the Rule 60B motion? [00:29:51] Speaker 04: Is there any limiting principle, or can any district court say this order is effectively unappealable until you file a Rule 60B motion? [00:29:59] Speaker 02: There has to be an injunction in place or a judgment in place in the first instance. [00:30:04] Speaker 02: And in this case, this court has already held that there was. [00:30:06] Speaker 02: It's the 2017 order. [00:30:09] Speaker 02: So that, I think, is the limiting principle. [00:30:12] Speaker 04: But if we go back to Judge Graber's original question, the 2023 order set forth the operating telepsychiatry policy going forward. [00:30:24] Speaker 01: And also, I would point out that it refers to, on ER 6, it refers to the 2017 order as provisionally approved, which I understand that there's been some loose language, both in the orders [00:30:43] Speaker 01: I just don't understand why this, even if that wasn't provisional, why this isn't a new injunction because it adopts something new and different in final form. [00:30:56] Speaker 02: So Your Honor, I believe we're talking about jurisdiction under 1292A1 at this point. [00:31:06] Speaker 02: And the question under the Thompson case and this court's application of Thompson to the 2018 telepsychiatry order in finding there was no jurisdiction, the question is, what is the practical effect? [00:31:18] Speaker 02: There is no injunctive practical effect from this order, because all that it required [00:31:25] Speaker 02: is effectuation of the 2017 requirements that it have a policy in place within the limits that the court prescribed in that order. [00:31:36] Speaker 02: So they are required to have a policy in place. [00:31:39] Speaker 02: They don't dispute that they like this policy. [00:31:42] Speaker 02: They use it for 75% of the patients in the system. [00:31:45] Speaker 02: They would just like to use it more. [00:31:47] Speaker 02: But the other two requirements are that the state show substantial harm [00:31:52] Speaker 02: and inability to seek relief in a later appeal. [00:31:56] Speaker 02: There is no harm here whatsoever. [00:31:58] Speaker 02: The state's best articulation of harm is that they shouldn't have to bring a Rule 60 motion. [00:32:05] Speaker 02: That is not a substantial injury. [00:32:08] Speaker 02: Moreover, they can get relief from a later appeal. [00:32:12] Speaker 02: Anything that they want that the court won't let them do in terms of expanding the limitations of telepsychiatry, they can get relief by appealing a Rule 60 denial. [00:32:22] Speaker 02: That is how they get relief on the merits here. [00:32:25] Speaker 03: Not in response- If we hypothetically assume they filed the Rule 60, they lose, then they appeal that. [00:32:35] Speaker 03: then here we are, hello. [00:32:36] Speaker 02: Yes, that is by definition, appealable under 1292A1. [00:32:39] Speaker 02: It is a denial of modification of an injunction. [00:32:43] Speaker 02: So there's no question they can get here on the merits. [00:32:46] Speaker 04: What kind of proposed telepsychiatry changes would have been within the scope of the stipulation? [00:32:52] Speaker 02: So first of all, anything that the special master and the parties agreed was appropriate to expand. [00:32:58] Speaker 02: We did in fact reduce the limitation from the 2017 order by stipulation. [00:33:03] Speaker 02: The original order required that telepsychiatry for the lowest level of class members could only be used as a supplement. [00:33:12] Speaker 02: We agreed it could be used all the time, 100% of the time for that 75% of the patient class. [00:33:18] Speaker 02: So anything that the parties and special master agreed was appropriate. [00:33:22] Speaker 02: Moreover, there are various things in the policy, including how we implemented the notion and the limitation from the 2017. [00:33:31] Speaker 04: So that wouldn't have given the defendants an opportunity to propose something that the special master and the plaintiffs didn't agree to. [00:33:37] Speaker 04: Is that correct? [00:33:38] Speaker 02: You're right. [00:33:39] Speaker 02: We could have agreed to that. [00:33:41] Speaker 02: But putting that aside, you're talking about just. [00:33:42] Speaker 04: No, no. [00:33:43] Speaker 04: You're saying the only things that the defendants could have proposed changing after the stipulation were what the special master and the plaintiffs agreed to. [00:33:54] Speaker 04: So that doesn't really give them the hearing that counsel just stated is in the district court order that they should be allowed to present their changes in the first instance, does it? [00:34:03] Speaker 02: Are you talking about from the 2018 order at this point? [00:34:06] Speaker 04: Um, yes, the language that they I have it in here that he just read at the beginning of his statement that says they should be in the first instance be allowed to present. [00:34:14] Speaker 02: Yes. [00:34:15] Speaker 02: And if you look carefully at that 2018 order from September of 2018, the court very clearly says, [00:34:22] Speaker 02: We are having this trial so that defendants can establish their Rule 60 burden to show that the 2017 injunction should be modified. [00:34:32] Speaker 02: So from the very start, they have not sought to do that because they cannot establish trained circumstances or simply don't want to try. [00:34:40] Speaker 02: So if you look carefully at that order, that is the reason I believe that they have not tried to reset that hearing is because it's the same standard [00:34:49] Speaker 02: that the court is telling them they ought to meet through a Rule 60 motion. [00:34:56] Speaker 02: So, you know, so looking back, I think, going back to your earlier question about what kind of changes may have been possible, so again, the special masters monitoring period could have, you know, shown that certain things were appropriate to change. [00:35:13] Speaker 02: For instance, we all agreed that the limitation that telepsychiatry could only be performed by [00:35:19] Speaker 02: by clinicians sitting in hub offices, we agreed, all of us agreed after the provisional period to eliminate that. [00:35:27] Speaker 02: So we've done that by stipulation. [00:35:29] Speaker 02: But other things that could have been possible could have been, for instance, changing the way that supplement was defined, changing the notice period for when an emergency existed that would allow use of telepsychiatry in the inpatient programs. [00:35:46] Speaker 02: So certain things within the parameters of the pretty broad, I'm sorry, pretty narrow limitations from the 2017 order, all of those could have been appropriate. [00:35:57] Speaker 02: But that's not what the state wanted. [00:35:58] Speaker 02: The state wanted to just throw the 2017 order out and pretend it never existed. [00:36:03] Speaker 02: But there's nothing in the stipulation language that remotely [00:36:06] Speaker 02: indicates that that was the intent of the parties or the court in granting that stipulation. [00:36:12] Speaker 04: So your view is they are entitled to an opportunity in the first instance to show why telepsychiatry should be expanded only if they can meet the requirements of Rule 60B, change in the law or change in circumstances. [00:36:24] Speaker 04: There's no other way that they will be allowed to present any other proposed changes. [00:36:28] Speaker 02: No. [00:36:30] Speaker 02: So I view the 2017 order as kind of a funnel. [00:36:33] Speaker 02: This is unlimited telepsychiatry at the top. [00:36:36] Speaker 02: These are some limitations imposed by the court after 1,000 pages of briefing and evidence presented by the parties. [00:36:42] Speaker 02: The court imposed some limitations, and anything below that was open to interpretation and negotiation in the policy form. [00:36:52] Speaker 02: But what they want to do is evade that second level of the funnel. [00:36:55] Speaker 02: They want to get to the very top where they can have unlimited telepsychiatry. [00:37:00] Speaker 02: But the limitations from the 2017 order are an injunction. [00:37:05] Speaker 02: They were fully litigated. [00:37:06] Speaker 02: The state did not appeal. [00:37:08] Speaker 02: This court has already said those were mandatory limitations in its 2019 order. [00:37:13] Speaker 02: So to get to the state where they can sort of exceed that limitation, again, anything underneath that is permissible. [00:37:21] Speaker 02: Those were the kind of changes we all anticipated. [00:37:24] Speaker 02: Anything above that that the parties didn't agree was appropriate. [00:37:28] Speaker 02: Again, we've stipulated to multiple modifications that expanded those 2017 requirements. [00:37:34] Speaker 02: Anything though that was contested is a Rule 60 burden. [00:37:38] Speaker 02: That is the burden that is appropriate under the federal rules in RUFO, and the state simply doesn't want to try and meet it. [00:37:47] Speaker 03: Okay, you have about 31 seconds. [00:37:49] Speaker 03: Do you want to wrap it up? [00:37:51] Speaker 02: I think that's it for me, unless there are further questions. [00:37:54] Speaker 03: No, thank you. [00:37:55] Speaker 03: No, we don't have any further questions. [00:37:56] Speaker 03: Thank you for your argument. [00:37:57] Speaker 02: Thank you. [00:38:03] Speaker 00: Your Honor's counsel just referred to [00:38:06] Speaker 00: the September 20th, 2018 order and asserted that it was all about go and establish your Rule 60 basis. [00:38:14] Speaker 00: It's about Rule 60. [00:38:16] Speaker 00: And I'm looking at ER 638, and it says it is hereby ordered, one, the hearing for the defendants to establish whether their plan satisfies the Eighth Amendment is set for October 15th. [00:38:30] Speaker 00: And then it goes to paragraph two, exchange witness lists. [00:38:33] Speaker 00: Paragraph three, file joint witness lists. [00:38:36] Speaker 00: Four, nothing authorizes discovery, et cetera. [00:38:40] Speaker 00: And then five, in the meantime, ER 638, the obligations to continue developing a telepsychiatry policy continue. [00:38:51] Speaker 00: Just because I'm setting these hearings, you must continue to go forward with the special master's plan. [00:38:58] Speaker 00: And this is the same order, September 20, 2018, in which [00:39:06] Speaker 00: the court was saying these things on page 638 because of what it said on page 628 of the same order. [00:39:14] Speaker 04: But your proposed changes were not vetted by the special master, correct? [00:39:18] Speaker 00: No, they weren't. [00:39:19] Speaker 04: And Your Honor, we have a- So why was it an abuse of discretion for the district court to not consider it because you didn't vet it through the special master? [00:39:27] Speaker 04: I mean, you're just going through ER 638. [00:39:29] Speaker 04: Clearly, it was envisioned that everything would be in accordance with the special master's plan. [00:39:34] Speaker 00: It starts in 2017, Your Honor. [00:39:37] Speaker 00: The defendants have never had a policy. [00:39:40] Speaker 00: They want to have a policy. [00:39:42] Speaker 00: They create a draft policy, 2017. [00:39:44] Speaker 00: The court says, I'm not ruling on whether this satisfies your Eighth Amendment obligations here. [00:39:52] Speaker 00: But what I am going to do is, for prophylactic reasons, for pragmatic reasons, I'm going to direct you to go to the special master, and the special master can bring the plaintiffs if he wants. [00:40:02] Speaker 00: And let's see if you can develop a policy. [00:40:04] Speaker 00: But for now, for now, think of it as design criteria. [00:40:09] Speaker 00: For now, I want you to maintain these limitations. [00:40:13] Speaker 00: These are not Eighth Amendment tried and resolved limitations. [00:40:17] Speaker 00: The Court is saying, I don't want you to use them on these classes yet. [00:40:21] Speaker 00: I don't want you to go there not that far, not that much, not just yet. [00:40:27] Speaker 00: That's what they call etched in stone Eighth Amendment resolution. [00:40:31] Speaker 00: That's not it. [00:40:32] Speaker 00: It never happened. [00:40:33] Speaker 00: And so we come to this order in 2018, and the court's saying, I'm glad you're moving it along. [00:40:41] Speaker 00: I'm glad there's progress. [00:40:43] Speaker 00: Let's have the 18-month trial period on the special master's policy. [00:40:47] Speaker 00: And it is the special master's policy. [00:40:49] Speaker 00: It's not our policy. [00:40:51] Speaker 00: And the court says, this will be very helpful. [00:40:54] Speaker 00: I'm going to quote. [00:40:55] Speaker 00: an enlightening period for assessing the proper role telepsychiatry may play in the delivery of mental health care. [00:41:05] Speaker 00: Well, we are under a constitutional system in which agencies draft policy. [00:41:11] Speaker 00: And sure, they don't get to write on a clean slate in a remedial setting, but they at least get a first crack at it. [00:41:17] Speaker 00: And they've never had that. [00:41:19] Speaker 00: They've never had what this court said in Graves versus Arpaio that they must have. [00:41:24] Speaker 00: They must have the opportunity to show that the policy they come in the door with, because of their expertise, because of all the responsibility they're charged with, they must have the opportunity to have that policy vetted before a court starts to substitute a special master's judgment, the court's judgment, or anybody else's judgment. [00:41:46] Speaker 00: Thank you, Your Honors, for the opportunity to present this argument today. [00:41:50] Speaker 03: Thank you both for your helpful arguments. [00:41:56] Speaker 03: This matter will stand submitted.