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Case number 22.7131, Stephen Olar and Miriam Berman at balance versus District of Columbia et al.

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Mr. Olar for the balance, Mr. Phillips for the district appellees, Mr. Renova for the appellee, Norrell Atkinson.

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Morning, counsel.

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Mr. Olar, please proceed when you're ready.

[00:00:22] Speaker 03:
Yes, thank you.

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May it please the court.

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And first of all, we do want to extend our appreciation for us to appear remotely on the snow day.

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Now, this case comes before the Court on a motion to dismiss.

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We, the appellants, allege that the trial court failed to apply the correct standard review when evaluating the motion to dismiss.

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Namely, the trial court, rather than considering the actual allegations in the amended complaint,

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made a single inaccurate generalization of those allegations and used that inaccurate generalization to find that the case was barred by issue preclusion and that the defendants, well, excuse me, the appellees were entitled to immunity.

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Now, I think what we want to emphasize most of all here today, arguments, is how little of this case is actually in dispute.

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Not just the facts and allegations in the complaint, but also the issues that we've raised here on appeal.

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Now, the allegations of the complaint which obviously the court is required to take, you know construe as true under emotion dismissed are quite troubling, and they're supported by the very evidence that appellees moved into the record.

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performed painful medically unnecessary tests on a six week old inch infant that involved depriving the infant of nutrition all nutrition for 72 hours.

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lacerating her foot for a painful battery of blood tests that had no medical purpose and then injecting anesthesia into her you know tiny 10 pound body.

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in order to take that MRI so that she couldn't resist their efforts.

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And when the parents sought to protect their child from these abuses, these appellees seized their daughter from their care.

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And the ostensible justification for it was a failure to cooperate with their investigation, which is not a recognized justification of the Fourth Amendment.

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Thereafter, the Office of the Attorney General misrepresented to the family court

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that all of the doctors and all of the medical records, specifically naming individuals all contend that this child's injuries were not medically possible when the only treating doctor they spoke to informed them that her injuries could be ruled as normal.

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In addition to that, there was withholding and destruction of evidence, which was found by the family court.

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These are the allegations that are in the amendment complaint.

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These were the allegations that the trial court was required to consider and evaluate when determining whether or not issue of preclusion and immunity applied.

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And it did not do that.

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Instead, the trial court

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believed erroneously that the amended complaint sought to overturn the determination of the family court.

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Nowhere in the amended complaint is that relief sought.

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In essence, the court misapplied the Rocker-Feldman doctrine to find that or to believe that this complaint sought the federal courts to overturn a state court decision.

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That is not the case.

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I think the court's decision in Gray v. Poole 2, that's 275,

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F3D1113 stands for that proposition that case has facts similar to this case in which the this court found that the trial court misapplied issue preclusion in the rocker film and doctrine.

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Now the.

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In addition.

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Obviously, all of that is not in dispute, as I noted, you know, and before the court in the record is the investigation summary from CFSA and the transcript from the family court hearing.

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And the court can see for itself that OAG misrepresented the facts of this case.

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Now, the district appellees

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don't dispute that in their brief.

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In fact, nowhere in their brief do they even dress the contention that the trial court applied the incorrect standard review.

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And our position is that that's a waiver of that issue.

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Certainly they also don't dispute that the court misapplied issue preclusion.

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So I think obviously appellee Atkinson does attempt to dispute it, but obviously we would submit that that's not, it doesn't carry much weight when you look at the evidence before the court.

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And so for these reasons, on that issue alone, we would find that the court erred in applying, we would ask the court to find that the trial court erred in applying the issue of preclusion doctrine.

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And now unless the court has any other questions about that issue, I'm gonna move on to another issue.

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So- Let me just make sure, I'm sorry, just- Yeah.

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The time, I think, maybe, I think we were allocated 10 minutes and maybe we started with 15.

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We'll definitely give you some rebuttal time regardless, but now we've corrected the time.

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I want to make sure that you have an accurate understanding of the time that you have remaining.

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Absolutely, Your Honor.

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Obviously, the court issued its ruling.

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We filed a motion for reconsideration based on these allegations.

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The second, the court's order in response to the motion for reconsideration, rather than readdressing the actual allegations that in the mini-complaint,

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Instead, we would say that the court erotically ruled on the merits of each of the claims, oftentimes at odds with black letter law.

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And we spelled that out in our complaint.

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Now, as I noted, what the district appellees are trying to do here, rather than address the actual errors of the court, they want this court to rule in the first instance on what is essentially an entirely new motion to dismiss.

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That is what the appellee's brief consists of.

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They want this court to you know they raise new issues, new arguments they make new representations, particularly about exigency that were never presented before the trial court.

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And what they want this court to do what they're trying to, I would argue bait this court to do is try to

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rule dispositively against us based on these new issues that were never presented in our position.

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And that's that's just an abuse of appellate procedure.

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It deprives us the opportunity, for example, to amend our complaint based on those allegations as a right within 21 days of filing.

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It also deprives us of whatever this court decides.

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We won't have review as a matter of right.

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The immunity grounds that are raised in the briefing were addressed by the district court.

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Correct, but I would also say that that was incorrectly done because the trial court did not look at the actual allegations in the complaint, each one, and determine whether or not each allegation was entitled to immunity.

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Rather, the trial court went back to the inaccurate generalization

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And use that to say that these appellees were entitled immunity for Lindsay next who is an attorney with the Office of Attorney General obviously the committee complaint alleges that she engaged in misdeeds our deprivations of our rights while she was performing an investigation.

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Ms.

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Nix put forward no evidence to dispute that allegation.

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And yet the trial court found that she was entitled immunity.

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You know, it's the person claiming the immunity has the burden to support it.

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And there was no evidence put forward by Ms.

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Nix to support that allegation.

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And so I would submit that that was incorrectly decided.

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For Beander and Redrick,

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I mean, frankly, from the trial court's opinion, it's not clear even what type of immunity, whether absolute or qualified, or for what issue, immunity was extended.

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The trial court essentially just said they had immunity and left it at that.

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And then for Ms.

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Atkinson, there's a number of issues there as well.

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I think that's probably a good segue into talking about Ms.

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Atkinson's brief before my time runs out.

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DC law provides a statute to promote reporting of abuse.

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Certainly nobody disputes that.

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What Appellee Atkinson is trying to do is to extend that

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community to cover any and all activities that she engaged in.

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Here, she was a state actor who was directed by the district to perform these painful medically unnecessary tests on this child.

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She wasn't a reporter.

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There's no evidence in the record, no facts in the record that she ever made a report.

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But yet the trial court found that she was entitled to immunity.

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We would submit that there's just simply no evidence there to support it.

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Even if she had made a report, her actions that is alleged to have deprived us of our rights do not even relate to the making of a report.

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They're completely unrelated.

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It's like a

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You know, it's like a net that protects the trapeze that's under the big top.

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They just want to take the net and extend it everywhere else to protect every other activity, regardless of what happens within the circus.

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That's not what the immunity statute was meant to do.

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And, you know, in addition to that, the trial court erroneously found that the state immunity law shielded appellant Atkinson from federal claims under 1983, for which there's no

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You know, there's no legal precedent for that, that a state immunity can shield them from federal constitutional violations.

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And we raised these issues and they weren't addressed by court.

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So my time is running out.

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Unless the court has any questions, I'm going to yield the remainder for rebuttal.

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I have one question.

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Judge Randolph.

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Yeah.

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Which issues in your complaint here did you not raise in the District of Columbia local proceedings?

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All of them.

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We don't seek here to in any way touch on the family court proceeding, nor could we, because there's no procedure for raising tort claims in a family proceeding.

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All of these have to deal with the deprivation of our right to make medical decisions on behalf of our child, protect her bodily interest.

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The unlawful.

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I thought I heard you attacking the credibility of Dr. Atkinson.

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Is that right?

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No.

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The trial court had found that because Atkinson's testimony on unrelated issues in the family court was received by the court and therefore credible that that somehow meant that she acted in good faith in this matter.

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And one of our arguments is those two don't logically follow whether or not she made a report in good faith.

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is not contingent on whether or not she gave credible testimony on an unrelated issue down the road.

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So there was that issue.

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What was the what was the unrelated issue?

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Well, her testimony concerning the the the extent of the etymology of the injuries.

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Correct.

[00:11:22] Speaker 05:
Right.

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My colleagues don't have additional questions for you.

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Thank you, Mr. Allard.

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We'll give you a bit of time for rebuttal.

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Thank you.

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We'll hear from the district now.

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Mr. Phillips.

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May it please the court, Graham Phillips on behalf of the district defendants.

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This case might seem like a lot at first, but I wanna persuade you that it's simpler than it looks like and that writing an opinion, affirming the judgment in favor of the district defendants will not be hard to do.

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Plaintiffs have brought six constitutional claims, the basic contours of which everyone agrees on.

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As to the individual district defendants, those claims are all barred by either qualified or absolute immunity.

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As to the district itself, those claims are all defeated by a lack of factual allegations supporting Monell liability.

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What are you going to achieve with those?

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Can I just ask a question?

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So you argued below that issue preclusion should carry the day.

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And the district court ruled in your favor on that.

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And you didn't, you're not defending that appeal?

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We have not made an issue preclusion argument on appeal beyond what's in our brief.

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We acknowledge that.

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And we did argue issue preclusion to some extent below.

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It was one among many and not our primary argument.

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But yes, on appeal, we have only made the extent of an issue preclusion argument that's in our brief.

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And what is that?

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I will extend in the brief.

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Yes, I think there are two facts that are issue preclusive that matter here.

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One is just that the plaintiff's explanation for the child's injury was inadequate to explain it.

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That was the square holding of the neglect proceeding and affirmed on appeal.

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And the second is that they stopped cooperating with the district and Dr. Atkinson.

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That also was a finding that was integral to part of the reasoning in the neglect proceeding.

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But beyond those particular factual sub-components of claims, you're not defending the result below on the threshold ground on which the district court ruled?

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Not on that broad view of issue.

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We have not made that argument, Your Honor.

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That's right.

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But like I said, I think all the constitutional claims are sort of easily disposed of by qualified absolute immunity for the individual defendants and by the lack of Monell liability for the district.

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Both of those issues are purely legal issues that were amply briefed both in the district court and in the briefing here.

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And I submit they are

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straightforward applications of those settled principles.

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This case is a prime example of why those doctrines exist and why they shouldn't be applied at the earliest possible stage of litigation.

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Uh, plaintiffs also brought state law claims, but disposing of those is even simpler because neither their opening brief nor their reply brief makes any meaningful argument in defense of those common law claims.

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I think this court can and should treat them as conceded and affirm their dismissal on that basis alone.

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I guess maybe I'd like to turn to the idea that we're doing something totally brand new here.

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And first of all, I think that's not correct.

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Because even setting issue preclusion aside, Judge Pan decided a lot other than that in her decisions.

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She decided qualified and absolute immunity for the constitutional claims.

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She also decided the state law claims, the state law immunity issue.

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She also talked and ruled on the merits of the IIED and NIED claims.

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So there is a large chunk of this case that is just squarely before this court that was briefed, decided below, and now briefed on appeal that this court should absolutely reach, and especially the immunity issues.

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This court and the Supreme Court have stressed that those should be decided as soon as possible.

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You know, once the court has gone that far, it has dug deep into the complaint and the issues in this case.

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And as I said, I think that all that's then left is to decide Monell liability, which again was thoroughly briefed below here on appeal.

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And I think it's not difficult.

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So the Monell question, it deals with the district.

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And then for the individual defendants, including the district defendants, under your sense of the case, immunity cuts across all of them.

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Yes.

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You don't have Dr. Atkinson.

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That's correct.

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Beyond Dr. Atkinson, it's Manel for the district, immunity for everyone else and immunity for everyone else.

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The way you understand the case was resolved by the district court.

[00:15:57] Speaker 01:
Yes.

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Yes.

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I think Mr. Oliver suggested there's some uncertainty about sort of the nature of the immunity ruling below, but I don't find it unclear.

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It's if you looked at,

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I think it's around pages 79 and 80.

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The district court said that the, clearly said that there was absolute immunity for all of the claims against NICS.

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And then as to, also said on page, yes, it's page 80, that Redrick, DeAnder are also entitled to qualified immunity from plaintiff's constitutional claims for the actions they took to investigate DO's neglect and to litigate the neglect proceedings.

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That covers, those are all the claims that are in this case.

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They're claims about their investigation and their conduct during the neglect proceedings.

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So I think it's quite clearly covered by that.

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I realize my time has expired.

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I would be happy to answer any further questions or get into the substance of any particular claims.

[00:17:00] Speaker 05:
Colleagues don't have questions.

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I think we're set.

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Thank you, Mr. Phillips.

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They're from Dr. Atkinson's council now.

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Ms.

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Caranova.

[00:17:14] Speaker 06:
Good morning, your honors.

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May it please the court.

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On behalf of APLE, Dr. Norrell Atkinson, we respectfully request that this honorable court affirm the lower court's ruling granting Dr. Atkinson's motion to dismiss and denying plaintiff's motion to reconsider.

[00:17:30] Speaker 06:
As we discussed in our brief, there were multiple grounds while the dismissal was appropriate.

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that includes that Dr. Atkinson was not a state actor, that she is subject to or she's immune from liability pursuant to the DC mandatory reporter statute, DC code 4-1321.01 and the following sections, that there is issue preclusion as to the claim brought against Dr. Atkinson in this case and putting aside the immunity

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issues and the state actor issue plaintiffs have failed to state a claim against Dr Atkinson on the common lot towards.

[00:18:12] Speaker 05:
I just ask you about the immunity ground.

[00:18:14] Speaker 05:
Um, the provision says there's immunity for participating in good faith in the making of a report.

[00:18:22] Speaker 05:
How the Dr Atkinson didn't actually participate in the making of the report.

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Did she?

[00:18:28] Speaker 06:
Not in the initial report, your honor, but if the statute was read that narrowly, then that would create a liability to the subsequent treaters who were caring for a child who were also asked to participate and provide their medical findings to CFSA in their child abuse and neglect investigation.

[00:18:49] Speaker 06:
And the statute does not read that narrow that it says it's the first

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physician or first person to report.

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And in doing so, you would have a quieting effect on the mandatory reporters that are listed in the statute.

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And it would go against the purpose of the intent of the statute, which is to protect children from abuse and neglect.

[00:19:13] Speaker 05:
Are the subsequent what you're calling reports, reports under the sub-chapter for purposes of the immunity provision?

[00:19:20] Speaker 06:
Yes, I believe that they are.

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They were, Dr. Atkinson was

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a private pediatrician with a specialty in child abuse.

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It's played in the amended complaint and clear from the supplemental appendix that she is brought in and her the CAPC group is brought in regularly to assist in the investigation of child abuse for their medical findings.

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And

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If the statute didn't intend to cover the physicians investigating the cause and ultimately assisting in providing treatment to the abuse, then ultimately the statute really wouldn't hold much water other than the first person making

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the report.

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And oftentimes, as in this case, this child was moved from Sibley Hospital where there was a report to Children's National Medical Center.

[00:20:17] Speaker 06:
And it's quite possible that the ER physician at Children's might not have known if there was a report already done at Sibley.

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And therefore, by saying that it could only be the first person who reported, you are putting at jeopardy a subsequent

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provider who might not have known that somebody else reported.

[00:20:43] Speaker 06:
In addition, as part of the investigation that was going on and Dr. Atkinson's involvement, she was asked to review various studies and findings and assist with the findings for CFSA.

[00:21:11] Speaker 06:
In addition, I want to point out to the court that there is no evidence that Dr Atkinson was a state actor under 1983.

[00:21:21] Speaker 06:
While it's a conclusory statement that's been made, it's quite clear under

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The case law that we have cited in our brief that there is no precedent for any physician or hospital to be considered a state actor under similar circumstances when they are working with Child Protective Services or CFSA in providing medical information regarding abuse and neglect.

[00:21:51] Speaker 06:
The case is cited by a plaintiff do not

[00:21:54] Speaker 06:
of the appellant to not create any kind of state actor.

[00:21:57] Speaker 06:
In this case, Dr. Atkinson really wasn't employed.

[00:22:03] Speaker 06:
There was no control.

[00:22:05] Speaker 06:
She didn't receive funds.

[00:22:07] Speaker 06:
And ultimately, she was not the decision maker for the removal of the child from the parent's custody.

[00:22:17] Speaker 06:
I see that I'm out of time.

[00:22:19] Speaker 06:
And unless there are further questions, I would just rely on our brief to

[00:22:24] Speaker 06:
further support our position on the other elements, including issue preclusion, as well as Judge Pan's orders below and request that this court affirm the decision below.

[00:22:37] Speaker 06:
And I thank you for your time, Your Honors.

[00:22:39] Speaker 05:
Thank you, counsel.

[00:22:41] Speaker 05:
Mr. Olar will give you two minutes for rebuttal.

[00:22:44] Speaker 03:
Thank you.

[00:22:45] Speaker 03:
Three points, Your Honor.

[00:22:46] Speaker 03:
First of all, the opinion of the family court is irrelevant.

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We're not here about mine or my wife's culpability, particularly where, as the court can see, that whole proceeding was itself tainted by the actions of these appellees.

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But regardless, we're here about the appellee's deprivations of our rights.

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Both can be true, and both can be actionable in court.

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Second, I think what the district

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Overlooks is how the trial courts failure to consider the actual allegations in the amended complaint takes its entire opinion.

[00:23:22] Speaker 03:
It doesn't look at each one in turn to determine whether or not either issue a conclusion or immunity applies.

[00:23:29] Speaker 03:
you know, the district says that as the district read, it gave Deander and Redrick immunity for their investigation.

[00:23:38] Speaker 03:
We're not alleging they couldn't perform a big investigation.

[00:23:41] Speaker 03:
That's why they're retained by the district.

[00:23:43] Speaker 03:
But what they can't do is inject a needle into a little infant's arm and sedate her and essentially render her unconscious

[00:23:55] Speaker 03:
That is a deprivation of right there's no legal authority whatsoever out of the Supreme Court that would give the district that kind of authority.

[00:24:03] Speaker 03:
That is a deprivation of a right, and it has nothing to do with the investigation they could have sought judicial authorization for that if they felt it was necessary.

[00:24:12] Speaker 03:
There is a plethora of case law concerning the actions of the state against individuals, particularly children.

[00:24:19] Speaker 03:
You can't even disrobe a child in a school to search her, but yet the district wants to contend that they're allowed to sedate an infant.

[00:24:27] Speaker 03:
And then finally, considering Dr. Atkinson,

[00:24:30] Speaker 03:
Her involvement in this case came two days after our daughter was already in the hospital.

[00:24:35] Speaker 03:
As Bander testified, she was directed by the district to perform its investigation.

[00:24:42] Speaker 03:
She is a state actor.

[00:24:44] Speaker 03:
And this has nothing to do with her making a report.

[00:24:46] Speaker 03:
This has everything to do with her acting under color state law to violate our rights and the rights of our daughter.

[00:24:54] Speaker 03:
That's the issue that is before the court.

[00:24:57] Speaker 05:
Thank you.

[00:24:58] Speaker 05:
Thank you for your presentations to all parties.

[00:25:01] Speaker 05:
We'll take this case under submission.