Filed: Sep. 08, 2020
Latest Update: Sep. 08, 2020
Summary: PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-2253 _ CRAIG A. GENESS v. ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS; COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES Administrative Office of Pennsylvania Courts, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-16-cv-00876) District Judge: Honorable Mark A. Kearney _ Argued May 26, 2020 Before: AMBRO, HARDIMAN, and RESTREPO, Circui
Summary: PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-2253 _ CRAIG A. GENESS v. ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS; COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES Administrative Office of Pennsylvania Courts, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-16-cv-00876) District Judge: Honorable Mark A. Kearney _ Argued May 26, 2020 Before: AMBRO, HARDIMAN, and RESTREPO, Circuit..
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2253
___________
CRAIG A. GENESS
v.
ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS;
COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA
DEPARTMENT OF HUMAN SERVICES
Administrative Office of Pennsylvania Courts,
Appellant
_________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-16-cv-00876)
District Judge: Honorable Mark A. Kearney
____________________________________
Argued May 26, 2020
Before: AMBRO, HARDIMAN, and RESTREPO, Circuit Judges
(Filed: September 8, 2020)
_____________
William A. Pietragallo, II [ARGUED]
James W. Kraus
Pietragallo Gordon Alfano Bosick & Raspanti
301 Grant Street
One Oxford Centre, 38th Floor
Pittsburgh, PA 15219
Robert J. Krandel
Caroline P. Liebenguth
Supreme Court of Pennsylvania
Administrative Office of Pennsylvania Courts
1515 Market Street
Suite 1414
Philadelphia, PA 19102
Counsel for Appellant
Joel S. Sansone [ARGUED]
Law Offices of Joel Sansone
603 Stanwix Street
Two Gateway Center, Suite 1290
Pittsburgh, PA 15222
Counsel for Appellee
2
___________
OPINION OF THE COURT
RESTREPO, Circuit Judge.
Mentally disabled and deemed incompetent to stand
trial, Craig Geness was detained for nearly a decade before the
homicide charge against him was ultimately dismissed. His
case exhibits inexcusable failures in Pennsylvania’s criminal
justice and mental health systems. While there is no doubt that
Geness’s case languished for far too long, we are limited here
to the narrow question whether the Administrative Office of
Pennsylvania Courts (AOPC) may plausibly be held liable for
his misfortune.
This appeal arises from AOPC’s motion to dismiss
Geness’s claim under Title II of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12131, and the Fourteenth
Amendment. The District Court denied AOPC’s motion,
finding that AOPC does not have sovereign immunity. For the
reasons set forth below, we will reverse the District Court’s
judgment and remand for dismissal of Geness’s Title II and
Fourteenth Amendment claim against AOPC.
I. BACKGROUND AND PROCEDURAL HISTORY
The events leading up to this case reveal a breakdown
in Pennsylvania’s criminal justice system.1 Geness is a
1
The following facts are taken from Geness’s Second
Amended Complaint except where otherwise noted.
permanently mentally disabled individual in his early fifties.
On November 17, 2006, he was detained after being charged
with aggravated assault. The charge was later amended to
homicide. This stemmed from an incident at Geness’s assisted
living facility, McVey Personal Care Home, in Uniontown,
Pennsylvania. Geness v. Cox, 902 F.3d 344, 349 (3d Cir.
2018). A resident of the facility fell from the building’s porch
and suffered serious injuries that resulted in his death a few
weeks later.
Id. Despite initial reports that the fall was an
accident, the deceased resident’s daughter contacted police to
share her suspicion that he might have been pushed.
Id. at 349.
Police then initiated an investigation that led to the charge
against Geness.
Id. at 349–50.
On June 18, 2007, a judge for the Court of Common
Pleas of Fayette County deemed Geness incompetent to stand
trial and ordered him transferred to a psychiatric hospital for
no more than sixty days to ascertain his capacity to stand trial
and his potential to regain competency. Despite the judge’s
order, Geness was not immediately transferred because, he
avers, “the waiting list for beds for persons deemed
incompetent to stand trial far exceeded the number of beds that
DHS [the Pennsylvania Department of Human Services] had
made available.” App. 38 ¶ 17. Approximately two months
after the judge’s order was entered, and with no psychiatric
evaluation undertaken, another judge again “deemed [Geness]
incompetent to stand trial and directed that a motion be filed
when Plaintiff was deemed competent to proceed.” App. 38 ¶
19.
Another two months after that (approximately ten
months after his arrest), Geness was finally transferred to a
psychiatric facility where he underwent an evaluation on
September 25, 2007 and was then returned to prison. He was
2
deemed incompetent with a “poor” prognosis for
improvement, yet no action was taken by the court, and he
remained imprisoned for years to come. App. 39 ¶ 21.
Throughout those years, his case was subject to the
court’s monthly “call of the list.” This is when a Court of
Common Pleas judge reviews a list of all pending criminal
matters that are ripe for trial, addressing each case individually
and either continuing it or scheduling the trial. The district
attorney and public defender for each case attend this
proceeding and provide the judge with relevant information.
In Geness’s case, the district attorneys “acquiesced to
the repeated continuance” of his trial—and his public defender
“made no attempt to have [Geness’s] case removed from the
trial list, despite [his] known incompetency to stand trial” and
despite the public defender’s “authority and [] opportunity” to
make an appropriate request. App. 40 ¶¶ 28, 30–31. Nor did
any of the six judges who at one time or another presided over
the “call of the list” intervene throughout three years of
monthly check-ins.
On November 23, 2010, the public defender
representing Geness “filed a motion requesting that [his] trial
be continued until [he] became competent.” App. 41 ¶ 35.
Less than a week later, a judge ordered his transfer from prison
to a psychiatric institution “for a period not to exceed 90 days”
to again evaluate his competency and potential to regain
competency. App. 41 ¶ 37. Geness was never transferred
pursuant to that order and remained in prison. Once again, on
August 17, 2011, a judge ordered a competency determination.
Finally, on September 4, 2011, approximately five years
after Geness’s arrest, a second competency evaluation was
3
conducted, this time at the prison. It was again determined that
Geness was incompetent to stand trial and unlikely to improve.
Later that month, a judge “ordered that [Geness] was not
competent to stand trial and released him to be involuntarily
committed to a Long Term Structured Residence (“LTSR”),
there to remain without contact with the general public and to
be returned to Fayette County Prison upon completion of his
therapeutic program or upon a determination that he is
competent to stand trial.” App. 43 ¶ 48. On September 22,
2011, nearly five years after his arrest, Geness was transferred
to a LTSR.
Approximately four years after that, with Geness’s case
all the while subjected to the monthly “call of the list,” the
Commonwealth “filed a proposed order for nolle prosequi all
charges against the Plaintiff,” stating that he “will never be
competent for trial and that substantive evidentiary issues
existed which would impair the Commonwealth’s ability to
meet its burden of proof.” App. 43 ¶¶ 51, 53–54. On
December 10, 2015, a judge entered the order nolle prosequi
all charges against Geness. After nine years in custody without
a trial, Geness was released. 2
On June 17, 2016, Geness filed his original complaint
against the County of Fayette, City of Uniontown, Jason Cox
(formerly a Uniontown Police Department detective, now chief
of police), and James and Jean McVey (owners of McVey
Personal Care Home). He brought an Americans with
Disabilities Act (ADA) and Fourteenth Amendment claim
2
Throughout Geness’s time in custody, his counsel
filed four motions for habeas corpus and/or motions to dismiss
the charge. No hearings were held or rulings made on those
requests.
4
against the county and city, various civil rights claims under 42
U.S.C. § 1983 against all defendants, and an intentional
infliction of emotional distress claim against Cox and the
McVeys.
On March 6, 2017, Geness moved for leave to amend
his complaint to add the Commonwealth of Pennsylvania as a
party based on the same allegations. The District Court denied
his motion for leave to amend, finding it barred by the Rooker-
Feldman doctrine.
After various motions before the District Court, all
defendants were dismissed except Detective Cox. Following
discovery, Cox filed a motion for summary judgment, which
the District Court granted on May 1, 2017. Geness appealed
the summary judgment ruling on his § 1983 claims against Cox
and the denial of his motion to amend his complaint to add the
Commonwealth as a party.
On appeal, this Court affirmed the District Court’s grant
of Cox’s summary judgment motion, reversed its denial of
leave for Geness to amend his complaint to add the
Commonwealth, and remanded for reinstatement of Geness’s
claim under Title II of the ADA and the Fourteenth
Amendment.
Geness subsequently amended his complaint to add a
Title II and Fourteenth Amendment claim against the
Commonwealth. The Commonwealth then filed a motion to
dismiss based on sovereign immunity, which the District Court
denied. The Commonwealth did not appeal the denial. On
March 27, 2019, Geness filed a Second Amended Complaint,
the operative complaint, alleging Title II and Fourteenth
5
Amendment violations against three state defendants—the
Commonwealth, as well as AOPC and DHS.
AOPC moved to dismiss based on sovereign immunity,
and the District Court denied its motion. AOPC timely
appealed, and the District Court’s denial of AOPC’s motion to
dismiss is now before us. This appeal does not involve
Geness’s claims against the Commonwealth or DHS; AOPC is
the only appellant.
II. STANDARD OF REVIEW 3
We review de novo a motion to dismiss based on
sovereign immunity. Blanciak v. Allegheny Ludlum Corp., 77
F.3d 690, 694 (3d Cir. 1996).4 At the motion to dismiss stage,
“we accept all well-pleaded allegations in the Complaint as
true and draw all reasonable inferences in favor of the non-
moving part[y].” M.A. ex rel. E.S. v. State-Operated Sch. Dist.
of City of Newark,
344 F.3d 335, 340, 342 (3d Cir. 2003). To
survive a motion to dismiss, factual allegations “must be
enough to raise a right to relief above the speculative level,”
which “requires more than labels and conclusions.” Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 555 (2007).
III. DISCUSSION
3
The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343, and we exercise
jurisdiction under 28 U.S.C. § 1291.
4
Geness filed a motion for leave to file a supplemental
appendix that contains materials that were not before the
District Court. At this stage of the litigation, we are
6
The Eleventh Amendment renders States immune from
any lawsuit “commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. While
the Amendment’s terms only apply to suits brought by citizens
of another state, the Supreme Court has “repeatedly held that
this immunity also applies to unconsented suits brought by a
State’s own citizens.” Tennessee v. Lane, 541 U.S. 509, 517
(2004). This immunity further extends to “entities that are
considered arms of the state.”5 Bowers v. NCAA,
475 F.3d 524,
545 (3d Cir. 2007) (citing Regents of the Univ. of Cal. v. Doe,
519 U.S. 425, 429 (1997)).
Congress has the power to abrogate states’ Eleventh
Amendment immunity, thus permitting suits to proceed for
specific claims, when it “unequivocally” expresses an intent to
do so and validly exercises this power within the bounds of its
authority under § 5 of the Fourteenth Amendment. Id. at 550.
“When Congress seeks to remedy or prevent unconstitutional
discrimination, § 5 authorizes it to enact prophylactic
legislation proscribing practices that are discriminatory in
effect, if not in intent, to carry out the basic objectives of the
constrained to “the allegations contained in the complaint,
exhibits attached to the complaint and matters of public
record,” and there is presently no reason to depart from this
rule. Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993). We therefore deny
Geness’s motion, which would improperly expand the record
on appeal.
5
It is undisputed that AOPC is an “arm of the
Commonwealth.” Appellant’s Br. 17.
7
Equal Protection Clause.” Id. at 551 (quoting
Lane, 541 U.S.
at 520).
Congress unequivocally expressed its intent to abrogate
sovereign immunity for claims brought under Title II of the
ADA. United States v. Georgia, 546 U.S. 151, 154 (2006)
(quoting 42 U.S.C. § 12202, which states that “a State shall not
be immune under the eleventh amendment to the Constitution
of the United States from an action . . . for a violation of this
chapter.”). The Title’s purpose, in part, is “to invoke the sweep
of congressional authority, including the power to enforce the
fourteenth amendment and to regulate commerce, in order to
address the major areas of discrimination faced day-to-day by
people with disabilities.” 42 U.S.C. § 12101(b)(4); see also
Bowers, 475 F.3d at 550 (acknowledging Congress’s clear
intent to abrogate sovereign immunity for Title II claims).
While Congress “must have a wide berth in devising
appropriate remedial and preventative measures” under § 5 of
the Fourteenth Amendment, its power is not “unlimited.”
Lane, 541 U.S. at 519. The Supreme Court in Lane held that
Congress validly abrogated state sovereign immunity for
claims brought under Title II “as it applies to the class of cases
implicating the fundamental right of access to the courts.”
Id.
at 533–34. That claim was brought by paraplegic individuals,
one of whom was required to appear in a second-floor
courtroom in a building with no elevator.
Id. at 513. He
crawled up the stairs of the courthouse to attend his first court
appearance.
Id. For his second appearance, he refused to crawl
or be carried by officers.
Id. He was “consequently arrested
and jailed for failure to appear.”
Id. The Court reiterated the
principle that “within the limits of practicability, a State must
afford to all individuals a meaningful opportunity to be heard.”
Id. at 532 (quoting Boddie v. Connecticut,
401 U.S. 371, 379
8
(1971)). But it limited its holding to Title II lawsuits that
implicate “accessibility of judicial services,” deliberately
leaving unanswered whether Congress validly abrogated
sovereign immunity for “Title II’s other applications,” for
example, “failing to provide reasonable access to hockey rinks,
or even to voting booths.” Id. at 530–31.
Subsequently, in Georgia, the Court made clear that
courts analyzing whether Congress validly abrogated
sovereign immunity for a Title II claim against a state or state
entity must conduct a “claim-by-claim” analysis. 546 U.S. at
159. It accordingly established a three-part test for courts to
determine whether sovereign immunity has been abrogated in
a particular case: “(1) which aspects of the State’s alleged
conduct violated Title II; (2) to what extent such misconduct
also violated the Fourteenth Amendment; and (3) insofar as
such misconduct violated Title II but did not violate the
Fourteenth Amendment, whether Congress’s purported
abrogation of sovereign immunity as to that class of conduct is
nevertheless valid.”
Id.
Here, we must apply this three-part test to determine
whether Congress validly abrogated sovereign immunity for
Geness’s claim against AOPC (and thus whether the claim may
proceed). Before we apply Georgia, we will first examine the
extent to which our Court’s prior precedential opinion in this
matter is controlling here, and we will examine the District
Court’s decision on remand. Pursuant to Georgia, we will
reverse the District Court’s judgment and hold that AOPC
retains its sovereign immunity because Geness has not stated a
Title II claim against it.
9
A. Our Court’s Prior Precedential Opinion
On August 28, 2018, our Court, inter alia, reversed the
District Court’s denial of Geness’s motion for leave to amend
his complaint to add the Commonwealth as a defendant. We
remanded the case for amendment of the Complaint and
reinstitution of his Title II and Fourteenth Amendment claim.
In addressing whether the District Court should have
permitted Geness to amend his Complaint, we analyzed
whether his proposed Title II and Fourteenth Amendment
claim against the Commonwealth would be futile, thus
applying the same standard as a motion to dismiss (as we do
here). 6 We held that Geness’s proposed claim was not futile
and should be permitted. In the course of the analysis, we
addressed each requirement of a Title II claim:
To state a claim under Title II of
the ADA, Geness must establish:
“(1) he is a qualified individual; (2)
with a disability; (3) who was
excluded from participation in or
denied the benefits of the services,
programs, or activities of a public
entity, or was subjected to
6
“The standard for assessing futility is the ‘same
standard of legal sufficiency as applies under [Federal] Rule
[of Civil Procedure] 12(b)(6).’” Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010)
(quoting Shane v. Fauver,
213 F.3d 113, 115 (3d Cir.2000)).
10
discrimination by any such entity;
(4) by reason of his disability.”
Geness, 902 F.3d at 361 (quoting Haberle v. Troxell,
885 F.3d
171, 178–79 (3d Cir. 2018) and citing 42 U.S.C. § 12132).
We found that Geness met all four requirements of a
cognizable Title II claim against the Commonwealth.
Specifically, we noted that
[r]egulations promulgated under
the ADA require that the
Commonwealth “shall ensure that
inmates or detainees with
disabilities are housed in the most
integrated setting appropriate to
the needs of the individuals,” 28
C.F.R. § 35.152(b)(2) (emphasis
added), and “[s]hall not place
inmates or detainees with
disabilities in inappropriate
security classifications because no
accessible cells or beds are
available,” id. § 35.152(b)(2)(i).
Id. at 361–62 (discussing several procedural protections
“designed to avoid undue delays and safeguard the fair and
efficient functioning of the criminal justice system,” the denial
of which gives rise to a cognizable ADA claim).
With respect to the Title II claim, we concluded that
“[a]s alleged, these multiple, protracted, and inexcusable
delays in the handling of Geness’s examinations, transfers, and
motions—resulting in nearly a decade of imprisonment and
11
civil commitment before a hearing was finally held on his
habeas petition—are more than sufficient to state a claim under
the ADA.” Id. at 362.
We went on to find that the same circumstances gave
rise to a claim under the Fourteenth Amendment:
[T]he constitutional claims Geness
seeks to bring against the
Commonwealth as to both the
length of his pretrial imprisonment
and the length of his civil
commitment would not be futile.
After his first psychological
evaluation indicated that he
“remain[s] incompetent to stand
trial,” . . . Geness was incarcerated
for an additional three years before
civil commitment proceedings and
a second examination were even
requested. And once
institutionalized, Geness was left
to languish for another four years
before he was granted a hearing on
his habeas petition and the charges
against him were dismissed. There
is no question this exceeded the
“reasonable period of time
necessary” under Jackson to
ascertain whether there was a
substantial probability Geness
would attain competency in the
foreseeable future.
12
Id. at 363–64 (citation omitted).
When we published this opinion, however, AOPC was
neither a party nor a contemplated party. Thus, it is our task to
square our prior holding that Geness stated a Title II and
Fourteenth Amendment claim against the Commonwealth with
Geness’s pleadings against AOPC. 7
B. District Court on Remand
The District Court held that Geness sufficiently pleaded
a Title II and Fourteenth Amendment claim against AOPC and
that AOPC’s sovereign immunity was validly abrogated (i.e.,
that Geness’s claim could proceed). It stated that “[a]t this
preliminary stage and mindful Mr. Geness is not challenging
judicial decision making but rather failures in court
administration practices[,]” it would not dismiss his claim.
Geness v. Commonwealth, 388 F. Supp. 3d 530, 534 (W.D. Pa.
May 28, 2019). And it noted that discovery may help clarify
“the potential liability and damages among allegedly
responsible state actors [AOPC, DHS, and the
Commonwealth].”
Id. (“AOPC’s argument of no
involvement, or the more central involvement of the
Department of Human Services, is based on facts requiring
discovery on relative culpability.”).
7
The law of the case doctrine instructs that “one panel
of an appellate court generally will not reconsider questions
that another panel has decided on a prior appeal in the same
case.” In re City of Phila. Litig., 158 F.3d 711, 717 (3d Cir.
1998). We are thus bound by our prior opinion to the extent it
bears upon the matter before us.
13
In reaching this conclusion, the District Court found
convincing Geness’s general allegation that “AOPC is
responsible for ‘[e]nsuring accessible and safe courts for all
citizens’ by ‘[e]nsuring that the courts of the Commonwealth
comply with Title II.’” Id. at 534 (quoting Second Am. Compl.
¶ 7 (App. 36 ¶ 7)). It also noted the following more specific
allegations from his Second Amended Complaint: Geness
alleged that AOPC “makes regular inquiries of each county’s
ADA coordinator with regard to cases involving criminal
defendants who are pretrial detainees whose cases have not
been called to trial in a timely fashion,” App. 45 ¶ 66, and that
even though “AOPC repeatedly contacted the Fayette County
court administrator directly to inquire about the Plaintiff’s case
and the reasons for [his] extended incarceration without trial,”
App. 45 ¶ 67, AOPC failed to take “any action designed to
provide the Plaintiff with his right to be brought to trial on the
charges that he faced,” App. 45 ¶ 67. Further, Geness alleged
that the Fayette County Court administrator, who serves as the
ADA coordinator for Fayette County, received a daily list of
prisoners that showed their length of incarceration—and that
his name appeared on this list.
The District Court also focused on AOPC’s duties
pursuant to the Pennsylvania Rules of Judicial Administration.
These rules task AOPC with (1) “review[ing] the operation and
efficiency of the system and of all offices related to and serving
the system and, when necessary . . . report[ing] to the Supreme
Court or the Judicial Council with respect thereto,” (2)
“examin[ing] the state of the dockets and practices and
procedures of the courts and of the magisterial district judges
and mak[ing] recommendations for the expedition of
litigation,” and (3) “prepar[ing] educational and training
materials for system and related personnel and to conduct
14
educational and training sessions.” Geness, 388 F. Supp. 3d at
534 (quoting Pa.R.J.A. Nos. 505(1), (6), (12) (alterations in
original)).
Considering all of this, the District Court concluded that
“Mr. Geness plausibly pleads the AOPC could have helped
him by exercising its duty to monitor the status of dockets and
make recommendations to expedite litigation, ensure ADA
compliance at a systemic level in the courts of the
Commonwealth, and reporting to the Pennsylvania Supreme
Court.” Id. The District Court did not, however, explain how
or at what point AOPC could or should have exercised these
duties, given Geness’s acknowledgement that AOPC
“repeatedly contacted the Fayette County Court administrator
directly to inquire about the Plaintiff’s case and the reasons for
the Plaintiff’s extended incarceration without trial,” App. 45 ¶
67, and that Geness “is not challenging judicial decision
making,”
Geness, 388 F. Supp. 3d at 532.
In summary, the District Court found that Geness had
stated a viable Title II and Fourteenth Amendment claim
because AOPC allegedly failed to take unspecified action to
expedite his case and failed to take initiative to report the status
of his case to the Pennsylvania Supreme Court. The District
Court thus concluded that it could not rule out AOPC’s Title II
and Fourteenth Amendment liability as a matter of law and that
AOPC therefore was not immune from suit.8
8
The District Court also addressed whether AOPC
possessed quasi-judicial immunity and found that it did not. Id.
at 536–38. AOPC does not appeal this ruling.
15
C. Georgia Analysis
To determine whether Congress validly abrogated
sovereign immunity for Geness’s Title II and Fourteenth
Amendment claim against AOPC, we must apply the three-part
Georgia test.9 The District Court, without explicitly noting
that it was applying Georgia, concluded that the first and
second inquiries were satisfied, thus permitting the claim
against AOPC to proceed. Pursuant to the analysis below, we
disagree with the District Court and conclude that Geness has
failed to satisfy the first requirement of Georgia because he
failed to set forth a plausible claim that AOPC violated Title II.
Because Geness’s allegations fail to satisfy Georgia’s first
requirement, we need not address the second and third
requirements.
To state a claim under Title II of the ADA, in
satisfaction of the first Georgia requirement, a party must
sufficiently plead that “(1) he is a qualified individual; (2) with
a disability; (3) who was excluded from participation in or
denied the benefits of the services, programs, or activities of a
public entity, or was subjected to discrimination by any such
entity; (4) by reason of his disability.” 10 Geness, 902 F.3d at
9
As noted above, this test requires courts to examine
“(1) which aspects of the State’s alleged conduct violated Title
II; (2) to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth Amendment,
whether Congress’s purported abrogation of sovereign
immunity as to that class of conduct is nevertheless valid.”
Georgia, 546 U.S. at 159.
10
It is undisputed that AOPC is a “public entity.” See
42 U.S.C. § 1231(1)(B) (stating that public entities include
16
361 (quoting Haberle, 885 F.3d at 178–79); 42 U.S.C. §
12132. 11 In our prior precedential opinion, we concluded that
the first and second requirements were satisfied, as well as the
third and fourth requirements as they relate to the
Commonwealth.
Id. at 361–62.
We must now determine
whether AOPC denied Geness “the benefits of [its] services,
programs, or activities . . . by reason of his disability.”
Id.
The following are Geness’s allegations regarding
AOPC, drawn directly from his Second Amended Complaint: 12
“any department, agency, special purpose district, or other
instrumentality of a State or States or local government”).
11
A plaintiff seeking compensatory damages under the
ADA must also sufficiently allege that the public entity
intentionally discriminated against him or her. Haberle, 885
F.3d at 181. To satisfy this element of intentional
discrimination, a plaintiff must allege at least “deliberate
indifference,” which requires “(1) knowledge that a federally
protected right is substantially likely to be violated . . . and (2)
failure to act despite that knowledge.”
Id. (quoting S.H. ex rel.
Durrell v. Lower Merion Sch. Dist.,
729 F.3d 248, 265 (3d Cir.
2013)) (alteration in original); see also
Geness, 902 F.3d at 362
n.13. We will not address deliberate indifference here because
we hold that Geness’s allegations fail to satisfy Title II’s other
requirements.
12
Geness’s Second Amended Complaint also links
AOPC’s alleged wrongdoing to the conduct of judges in their
disposition of his case. See, e.g., App. 43 ¶ 52 (“The above-
described Judges continued to permit Plaintiff’s case to be
listed for trial, despite their actual knowledge of his
17
• “Defendant AOPC is a subsidiary unit of the
Commonwealth of Pennsylvania and as such acts as an
agent of the Commonwealth in various matters related
to supervision and administration of the Pennsylvania
Unified Judicial System. The Pennsylvania Unified
Judicial System includes judges of the Court of
Common Pleas of the various Pennsylvania counties,
including Fayette County. In its capacity as a subsidiary
unit of the Commonwealth, AOPC administers the
Pennsylvania Unified Judicial System and is
responsible for the prompt and proper disposition of all
business of the courts of the Commonwealth of
incompetency.”). Allegations of wrongdoing based on judicial
conduct are omitted here because AOPC’s administrative
functions and the independent role of the judiciary must not be
conflated. See Figueroa v. Blackburn, 208 F.3d 435, 440 (3d
Cir. 2000) (“The doctrine of judicial immunity is founded upon
the premise that a judge, in performing his or her judicial
duties, should be free to act upon his or her convictions without
threat of suit for damages.”). The parties do not present and
we are not aware of any legal authority that would permit
AOPC to be found liable based on judicial conduct. Further,
Geness acknowledges that AOPC cannot be held liable based
on judges’ decision-making. Appellee’s Br. 25 (“The AOPC
does not have oversight over criminal cases and the decisions
that are required in each such case to the extent that those are
duties to be performed by the Judges of the Common Pleas
Court. . . . AOPC does in fact have the duty to oversee the
actions of those Judges to ensure that, among other things, the
courts comply with the rights of disabled individuals.”).
18
Pennsylvania. Among the duties and responsibilities of
the AOPC is insuring accessible and safe courts for all
citizens. The duties of the AOPC include insuring that
the courts of the Commonwealth comply with Title II of
the [ADA]. The AOPC attempts to insure compliance
with the ADA through interaction with ADA
coordinators in each county of the Commonwealth. For
Fayette County, Pennsylvania, the role of AOPC ADA
coordinator is filled by the deputy court administrator,
who reports directly to the court administrator.” App.
36 ¶ 7.
• “AOPC, through the Fayette County Court of Common
Pleas . . . discriminated against [him] because of his
disability by depriving him of the administration of
judicial services and the normal benefits of criminal
procedure and due process of the law.” App. 44 ¶ 61.
• “As part of its effort to fulfill its responsibility to insure
the Commonwealth’s compliance with the ADA,
Defendant AOPC makes regular inquires of each
county’s ADA coordinator with regard to cases
involving criminal defendants who are pretrial
detainees whose cases have not been called to trial in a
timely fashion according to Pennsylvania law.” App.
45 ¶ 66.
• “Defendant AOPC repeatedly contacted the Fayette
County court administrator directly to inquire about the
Plaintiff’s case and the reasons for the Plaintiff’s
extended incarceration without trial. Notwithstanding
that those inquiries were made by Defendant AOPC,
neither the AOPC, nor any other agent of AOPC,
19
including the AOPC’s local ADA coordinator in Fayette
County, took any action designed to provide the
Plaintiff with his right to be brought to trial on the
charges he faced.” App. 45 ¶ 67.
• “During the period of Plaintiff’s incarceration, the
Fayette County ADA coordinator was the assistant
court administrator. At all times relevant to this case,
the assistant court administrator reported directly to the
court administrator.” App. 45 ¶ 68.
• “During the period of Plaintiff’s incarceration . . . , the
Fayette County court administrator received from the
Fayette County Prison a daily list of prisoners
incarcerated in the Fayette County Prison. This list
included various information about each incarcerated
individual, including the date that the individual was
incarcerated, as well as the minimum and maximum
incarceration dates for each prisoner.” App. 45–46 ¶ 69.
• “On each of the daily lists sent from the prison to the
court administrator, Plaintiff Craig Geness appeared
together with information about his incarceration
described above.” App. 46 ¶ 70.
• The AOPC’s conduct, described above, “deprived
[Geness] of his right to the justice system, which is
protected by the Fourteenth Amendment of the United
States Constitution.” App. 47 ¶ 82.
Identifying AOPC’s “services, programs, or activities”
at the foundation of Geness’s Title II claim is a necessary first
step to determining whether his claim is cognizable. See
20
Disability Rights N.J., Inc. v. Comm’r, N.J. Dep’t of Human
Servs., 796 F.3d 293, 301–03 (3d Cir. 2015). “[T]he phrase
‘service, program, or activity’ under Title II . . . is ‘extremely
broad in scope and includes anything a public entity does.’”
Furgess v. Pa. Dep’t of Corr.,
933 F.3d 285, 289 (3d Cir. 2019)
(quoting Disability
Rights, 796 F.3d at 301).
In Disability Rights, this Court identified the alleged
“service, program, or activity” as a judicial hearing before a
mentally ill person can be forcibly medicated in a nonemergent
situation. Id. at 303–04, 307 (holding that “judicial process
before the nonemergent administration of psychotropic drugs
is not a ‘service, program, or activity’ of New Jersey from
which the civilly committed are excluded). In Furgess, this
Court concluded that a prison’s “provision of a shower is a
service, program, or
activity.” 933 F.3d at 291 (holding that
Furgess adequately alleged a Title II claim based on the
prison’s failure to accommodate his need for a shower). In
Bowers, the University of Iowa’s program was its provision of
athletic
scholarships. 475 F.3d at 553 (holding that Bowers
stated a claim under Title II).
Based on Geness’s Second Amended Complaint and his
arguments before this Court, and because Geness concedes that
AOPC’s liability cannot be premised on judicial decision-
making, see supra note 12, the only “services, programs, or
activities” at issue are AOPC’s administrative duties to (1)
“intervene directly with the Fayette County Court to ensure
that the Plaintiff’s case moved forward,” and (2) “seek
intervention for such result by the Pennsylvania Supreme
Court.” Appellee’s Br. 22. Geness argues that Title II requires
AOPC to provide him these two services from which he was
21
excluded based on his disability. 13 AOPC counters that its
“enumerated powers” do not authorize it to meddle in “specific
litigation.” Appellant’s Br. 33.
First, regarding AOPC’s alleged failure to directly
intervene with the Fayette County Court of Common Pleas,
Geness acknowledged in his Second Amended Complaint that
AOPC “repeatedly” made inquiries about the length of his
detention to the court administrator. App. 45 ¶¶ 66–67. But,
he alleged, AOPC failed to take “any action” beyond those
inquiries that would “provide [him] with his right to be brought
to trial.” App. 45 ¶ 67. He neither identifies in his Complaint
nor argues before us what further action AOPC should have or
could have taken. And it is difficult to imagine what action it
could have taken in light of Geness’s concession that AOPC is
not liable for judges’ decision-making in individual cases. See
supra note 12. Thus, Geness’s allegation of AOPC’s failure to
directly intervene with the county court in some unspecified
manner, beyond its repeated inquiries to the court
administrator, cannot sustain his claim under Title II of the
ADA. See Twombly, 550 U.S. at 555 (stating that allegations
must be more than “speculative” or “conclusory”).
13
To the extent Geness additionally alleges that AOPC
had a duty to ensure his motions for habeas corpus relief and
motions to dismiss the charge against him were heard and ruled
upon in a timely manner, we conclude that these allegations are
both dependent on judicial conduct and too speculative to
sustain his claim because they are not linked to any alleged
service, program, or activity of AOPC under Pennsylvania
Rule of Judicial Administration 505 or otherwise. See supra
note 12; Twombly, 550 U.S. at 555.
22
This leaves only Geness’s argument that AOPC failed
to seek intervention from the Pennsylvania Supreme Court. He
does not make this allegation anywhere in his Second
Amended Complaint. It stems from AOPC’s “powers and
duties” enumerated in the Pennsylvania Rules of Judicial
Administration. Pa.R.J.A. No. 505. We will take judicial
notice of the Pennsylvania Rules of Judicial Administration, as
they are “matters of public record,” which the District Court
considered as well. Buck v. Hampton Twp. Sch. Dist., 452 F.3d
256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright &
Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed.
2004)). AOPC’s duties include, in relevant part:
(1) To review the operation and
efficiency of the system and of all
offices related to and serving the
system and, when necessary, to
report to the Supreme Court or the
Judicial Council with respect
thereto. . . .
(6) To examine the state of the
dockets and practices and
procedures of the courts and of the
district justices of the peace and
make recommendations for the
expedition of litigation.
Pa.R.J.A. No. 505(1), (6).
The “service, program, or activity” requirement under
Title II is “extremely broad in scope and includes anything a
public entity does.” Furgess, 933 F.3d at 289 (finding that “a
prison’s provision of showers to inmates fits within this
23
expansive definition”). Nonetheless, the “service, program, or
activity” must be one that the entity actually provides. See,
e.g., Lane, 541 U.S. at 531 (holding that access to court
proceedings is a service provided by the state). This is an
obvious but important limitation. For example, in Disability
Rights, we held that “the provision of judicial process before
the [forcible] nonemergent administration of psychotropic
drugs is not a ‘service, program, or activity’ of New Jersey
from which the civilly committed are
excluded.” 796 F.3d at
305, 307 (stating that this was not a “public service, program,
or activity to which nondisabled individuals have access”).
Our dissenting colleague cites Pa.R.J.A. No. 505(1), (6)
as the basis of his opinion that Geness has stated a viable Title
II claim against AOPC. These provisions, however, do not
suffice to establish a Title II claim against AOPC. They charge
AOPC with “review[ing] the operation and efficiency of the
system” and reporting to the Supreme Court “when
necessary”—and with “examin[ing] the state of the dockets
and practices and procedures of the courts . . . and mak[ing]
recommendations for the expedition of litigation.” Pa.R.J.A.
No. 505(1), (6). These rules unambiguously require AOPC to
facilitate an “efficien[t]” and “expeditio[us]” system, in line
with its role as an administrative body. They do not task AOPC
with policing potential civil rights violations in particular
cases—to do so would task the AOPC with making legal
determinations and recommendations. The AOPC is not, and
should not be, a judicial back-seat driver. See supra note 12.
Geness argues that AOPC’s failure to “seek intervention
by the Pennsylvania Supreme Court” impacted his ability to be
“timely [tried] on the charges that he faced.” Appellee’s Br.
11. This argument requires some unpacking. First, he was
never competent to stand trial throughout his years of
24
detainment—and subjecting him to trial would have violated
his due process rights. See Cooper v. Oklahoma, 517 U.S. 348,
354 (1996) (“We have repeatedly and consistently recognized
that the criminal trial of an incompetent defendant violates due
process.” (internal quotation marks omitted)). Secondly,
Geness neither alleges nor attempts to argue that AOPC had
any control over whether he was housed in a prison versus a
long-term care facility while deemed incompetent. Thus, with
his argument properly distilled, Geness is effectively urging
this Court to hold that AOPC had a duty to seek intervention
of the Pennsylvania Supreme Court to have his case dismissed
before it languished for nine years while he remained
incompetent and—for reasons both unclear and inexcusable—
remained imprisoned for much of that time. He makes this
argument despite acknowledging that he had representation
and access to the court throughout the years he was imprisoned
and civilly committed. See App. 40 ¶¶ 30–31 (stating that
Geness’s public defender “made no attempt to have [his] case
removed from the trial list, despite [his] known incompetency
to stand trial” and despite having “the authority and the
opportunity to intervene with the Court”); App. 40 ¶¶ 26–27
(stating that Geness’s case was subject to the court’s “call of
the list,” whereby his counsel, a district attorney, and a judge
evaluated the status of his case on a monthly basis).
By Geness’s argument, in order for AOPC to comply
with Title II, it had to suggest to the Pennsylvania Supreme
Court that his case be dismissed because he was not competent
to stand trial. AOPC would “in effect . . . be required to closely
monitor, deeply evaluate, and consider intervening in every
criminal case pending in the Commonwealth.” Appellant’s
Reply 1. In a case such as this, AOPC argues, “even if aware
of the procedural status,” it “would not have known whether
25
the extended delay was part of a strategic course by defense
counsel, the thoughtful deliberative process of the judge, or
some other factor peculiar to that specific case.” Appellant’s
Br. 41. We find AOPC’s arguments persuasive.
Further, AOPC’s powers do not allow it to actually hold
a criminal trial, which Geness alleges it denied him.
Appellee’s Br. 15, 25, 26 n.22. Even had AOPC reported to
the Pennsylvania Supreme Court or the Fayette County Court
of Common Pleas about the delay in Geness’s case, it remained
the exclusive power of the courts to actually do something
about it.
Relatedly, since Geness was not competent to stand
trial, a court’s decision regarding whether a case should be
dismissed depends on the evidence and law underlying the
charge and the basis for dismissal. Weighing such matters is
indisputably a judicial function. This brings us full circle to
Geness’s acknowledgement that AOPC does not have a duty
to meddle with judicial decision-making. See supra note 12.
Because judicial decision-making is not a service AOPC
provides to either disabled or nondisabled individuals, Geness
was not excluded from this service based on his disability. See
Disability Rights, 769 F.3d at 305.
Further, Title II requires not only that a public entity
“excluded” a disabled individual from a service it provides but
also that such an exclusion was “by reason of his disability.”
Geness, 902 F.3d at 361 (quoting Haberle v. Troxell,
885 F.3d
171, 178–79 (3d Cir. 2018) and citing 42 U.S.C. § 12132).
Neither Geness nor the dissent sets forth a plausible allegation
or argument regarding how AOPC neglected to report the delay
in his case to the Pennsylvania Supreme Court “by reason of
his disability.”
Id. While his case appears to have languished
26
due to his disability (i.e., while he was incompetent to stand
trial), AOPC had no power over the disposition of his case,
and there is simply no allegation or argument before us
regarding how AOPC’s alleged failure to contact the Supreme
Court connects to Geness’s disability.
For the reasons set forth above, Geness’s allegations
against AOPC fail to satisfy the first requirement of Georgia—
setting forth a plausible Title II claim. We therefore hold that
Congress has not validly abrogated AOPC’s sovereign
immunity regarding this particular claim. In conclusion, we
will reverse the District Court’s judgment and remand this case
for dismissal of the claim against AOPC. Though we exclude
AOPC as a potentially responsible party, the human suffering
endured by Geness due to the mishandling of his case cannot
be overstated. This opinion does not impact Geness’s claims
against the Commonwealth and DHS, which are not currently
before us.
27
Craig Geness v. Administrative Office of Pa., et al
No. 19-2253
AMBRO, Circuit Judge, dissenting
The blink response to a suit against a clerk’s office is
that this cannot be. It is simply counterintuitive. Thus I easily
understand why my colleagues believe it correct to reverse
Judge Kearney’s decision. See Geness v. Pennsylvania, 388 F.
Supp. 3d 530 (W.D. Pa. 2019) (emphasis omitted). But at the
motion-to-dismiss stage in this Les Misérables scenario, I am
persuaded by his well-reasoned analysis. Thus I would affirm
and hold that Craig Geness has pled facts sufficient to abrogate
the sovereign immunity of the Administrative Office of
Pennsylvania Courts (“AOPC”) for purposes of his claims
under Title II of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12131, et seq., and the Fourteenth Amendment.
The majority opinion recites well the tragic facts in this
case. Mr. Geness languished in custody without a trial for over
nine years before the case against him was dropped because he
would never be competent to stand trial and substantial
evidentiary issues impaired the Commonwealth’s prosecution.
This came after it was determined early on that he was
incompetent and unlikely to improve, and while four separate
motions for habeas corpus relief and motions to dismiss were
pending (without a hearing or ruling on any of them). To say
that Mr. Geness suffered a grave injustice at the hands of the
system for justice is inadequate. There are no words.
My colleagues in the majority conclude that Mr. Geness
has failed to satisfy the first requirement of the three-prong test
outlined in United States v. Georgia, 546 U.S. 151 (2006).
They hold that he did not state a plausible Title II claim because
he did not allege that the AOPC denied him “the benefits of
[its] services, programs, or activities . . . by reason of his
disability.” Geness v. Cox,
902 F.3d 344, 361 (3d Cir. 2018)
(quoting Haberle v. Troxell,
885 F.3d 170, 178–79 (3d Cir.
2018), and citing 42 U.S.C. § 12132).
In my view, Mr. Geness clearly identifies the provisions
of Pennsylvania law that tasked the AOPC with monitoring the
criminal docket and reporting failures directly to the
Commonwealth’s Supreme Court. And he alleges that the
AOPC’s failure to perform those tasks substantially, if not
exclusively, led to his unconscionable and lengthy pretrial
detention. I rely on the same law and portions of Mr. Geness’s
Second Amended Complaint as my colleagues to reach this
opposite conclusion.
Sections (1) and (6) of Rule 505 of the Pennsylvania
Rules of Judicial Administration (“Pa. R.J.A.”) charge the
AOPC with “review[ing] the operation and efficiency of the
system and of all offices related to and serving the system and,
when necessary . . . [,] report[ing] to the [Commonwealth]
Supreme Court or the Judicial Council with respect thereto,”
Pa. R.J.A. No. 505(1), and “examin[ing] the state of the
dockets and practices and procedures of the courts and of the
magisterial district judges and mak[ing] recommendations for
the expedition of litigation,” id. No. 505(6).
Mr. Geness alleges that the AOPC “makes regular
inquiries of each county’s ADA coordinator with regard to
cases involving criminal defendants who are pretrial detainees
whose cases have not been called to trial in a timely fashion,”
2
Ohio App. 45 ¶ 66, and that it in fact “repeatedly contacted the
Fayette County court administrator directly to inquire about
[Mr. Geness’s] case and the reasons for the . . . extended
incarceration without trial,” App. 45 ¶ 67. It, however, took no
further action “designed to provide [him] with his right to be
brought to trial on the charges that he faced.”
Id. Additionally,
he alleges that during his incarceration “the Fayette County
court administrator received . . . a daily list of prisoners
incarcerated in the Fayette County Prison . . . , including the
date that [each] individual was incarcerated, as well as the
minimum and maximum incarceration dates for each . . . .”
App. 45–46 ¶ 69. Mr. Geness appeared on each list. App. 46
¶ 70.
Based on the directives in the Pennsylvania Rules of
Judicial Administration and Mr. Geness’s allegations that the
AOPC failed to provide him the services of monitoring the
docket and reporting the delay in his case to the
Commonwealth Supreme Court directly, he has plausibly pled
a claim based on Title II of the ADA. “[T]he phrase service,
program, or activity under Title II . . . is extremely broad in
scope and includes anything a public entity does.” Furgess v.
Pa. Dep’t of Corr., 933 F.3d 285, 289 (3d Cir. 2019) (citation
and internal quotation marks omitted). My colleagues do not
explain why monitoring the criminal dockets and reporting
issues up to the Supreme Court does not satisfy this definition
of “service,” nor why they discount Mr. Geness’s allegations
that he was denied the service of having the AOPC flag the
extreme delay in his case directly to that Supreme Court.
Mr. Geness does not propose that the AOPC had to
guarantee specific results, or dictate to Commonwealth judges
how to rule in any particular case, or grant him any form of
3
judicial relief. He asserts that the AOPC had the duty to
monitor the state of the dockets, which it did, and seek
intervention by the Supreme Court, which it failed to do.
Neither the AOPC nor my colleagues cite to any case or
provision of law that would have barred the AOPC from
fulfilling its obligations under the Pennsylvania Rules of
Judicial Administration. Rule 505 provides the basis for the
AOPC to ring the alarm in cases like the one before us. And
to say that it had an obligation to make a recommendation to
expedite litigation where there was a nearly decade delay is not
the same as arguing that the AOPC has an obligation to
intervene in every pending criminal case. There was nothing
ordinary about the procedural posture of this case. 1
1
My colleagues also conclude that Mr. Geness failed to
allege that the AOPC intentionally discriminated against him
“by reason of his disability,” as is required to state an ADA
claim. Geness v. Cox, 902 F.3d 344, 361 (3d Cir. 2018)
(quoting
Haberle, 885 F.3d at 178–79 and citing 42 U.S.C.
§ 12132). They acknowledge that the element of intentional
discrimination is met when a plaintiff alleges “deliberate
indifference,” which requires “(1) knowledge that a federally
protected right is substantially likely to be violated . . . and (2)
failure to act despite that knowledge.”
Haberle, 885 F.3d at
181 (citation omitted). But they do not explain how it is that
Mr. Geness did not sufficiently plead knowledge by the AOPC
that his rights were being violated when he in fact alleges that
during the period of his incarceration the court administrator
received a daily list of prisoners that included his name, the
duration of his incarceration, and the status of his case, App.
45–46, and that the AOPC repeatedly inquired about the status
of his case, App. 45. Nor do they explain why Mr. Geness did
not sufficiently plead failure to act when he does allege that the
4
Any concern about whether the AOPC actually had the
ability to take further action on behalf of Mr. Geness is a matter
for discovery. As the District Court pointed out, “a developed
factual record may show, as a matter of fact, the AOPC could
not have done more.” Geness, 388 F. Supp. 3d at 535. But
how can we say at this stage that the AOPC does not in fact
have mechanisms and procedures in place to ensure that cases
like the one before us do not slip through the cracks? How can
we say that it did not, in the past, alert up the chain on behalf
of other criminal defendants but failed to do so in Mr. Geness’s
case?
AOPC, despite knowledge of the delay in his case, failed to
intervene with the Supreme Court on his behalf as it was
authorized to do under Pennsylvania’s Rules of Judicial
Administration.
Id.
The argument that the AOPC had no power over the
disposition of Mr. Geness’s case, and thus did not cause the
delay, misses the point. Under our case law, a successful ADA
claim only requires the plaintiff to show but-for causation. CG
v. Pa. Dep’t of Educ.,
734 F.3d 229, 236 n.11 (3d Cir.
2013). Mr. Geness does not have to allege or ultimately prove
that the AOPC alone caused the rights violation he
suffered. See Furgess v. Pa. Dep’t of Corr.,
933 F.3d 285, 291
n.25 (3d Cir. 2019). At the pleading stage, he has more than
sufficiently alleged that the AOPC’s failure to act on his behalf
substantially caused and contributed to the delay in his
case. And what ultimately transpired internally at the AOPC
with respect to Mr. Geness’s case is something he should have
the opportunity to determine through discovery. That,
however, remains a mystery, as we now cut short his case
against that agency.
5
We are to construe complaints so “as to do substantial
justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004)
(quoting Fed. R. Civ. P. 8(f)). Mr. Geness’s allegations more
than suffice at this stage, and given the harrowing ordeal he
endured at the hands of the judicial system, it would be a
further injustice not to allow his suit against the AOPC (the
very agency with the duty to monitor the dockets and report up
any issues) to continue. To do otherwise is to define adequacy
down. I respectfully dissent.
6
