                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


  JANE DOES I THROUGH III,

                         Plaintiffs,

                        v.                          Civil Action 01-02398 (HHK)

  DISTRICT OF COLUMBIA, et al.,

                         Defendants.


                         MEMORANDUM OPINION AND ORDER

       Jane Doe I, by her next friend, Duery Felton, Personal Representative of the Estate of Jane

Doe II, and Linda Tarlow, Personal Representative of the Estate of Jane Doe III (collectively,

“plaintiffs”) bring this action under 42 U.S.C. § 1983 against the District of Columbia and the

District’s Mental Retardation and Developmental Disabilities Administration (“MRDDA”)

(collectively, the “District of Columbia”) alleging that while Jane Doe I, Jane Doe II, and Jane

Doe III were in the District of Columbia’s care, the District of Columbia consented to the

performance of non-emergency surgical procedures on them without authority to do so. This case

is now before the court on the parties’ cross-motions for summary judgment after its remand from

the United States Court of Appeals for the District of Columbia Circuit (the “Court of Appeals”).

Plaintiffs move for partial summary judgment seeking a ruling that they, and all class members for

whom the District of Columbia consented to elective surgery between 1970 and December 1998,

are entitled to summary judgment on the issue of liability [#167]. Plaintiffs also move for class

certification for resolution of damages pursuant to FED . R. CIV . P. 23 and LCvR 23.1 [#166]. The

District of Columbia moves for summary judgment on all of plaintiffs’ claims [#172].
       Upon consideration of the motions, the oppositions thereto, and the record of this case, the

court concludes that plaintiffs’ motions for partial summary judgement and class certification

must be denied and the District of Columbia’s motion for summary judgment must be granted in

part and denied in part.

                                        I. BACKGROUND

A.     Plaintiffs

       Jane Doe I, Jane Doe II, and Jane Doe III received habilitation services from the District of

Columbia1 and were institutionalized in District of Columbia facilities beginning in the 1960s.2 In

1984, Jane Doe I became pregnant with her second child, previously having given birth to a

healthy boy without developmental disabilities. According to plaintiffs, District of Columbia

officials requested that she have an abortion, but Jane Doe I refused. Nevertheless, District of

Columbia officials gave their consent for the abortion, which was subsequently performed.

Plaintiffs assert that these officials never consulted with Jane Doe I’s legal representative nor

obtained authorization from a court. See Compl. ¶¶ 14-17.

       Jane Doe II was diagnosed in 1994 with exotropia, a condition where one eye deviates

from the other. According to plaintiffs, District of Columbia officials gave their consent for an

elective surgical procedure without consulting Jane Doe II’s mother. Compl. ¶¶ 18-20.

       Jane Doe III became pregnant in 1978 and decided to carry her pregnancy to term.



       1
          “Habilitation is the process by which a person with developmental disabilities is
assisted in acquiring and maintaining skills to cope more effectively with the demands of his or
her own person and of his or her environment, and to raise the level of his or her physical, mental
and social capabilities.” Compl. ¶ 6.
       2
           Jane Doe II and Jane Doe III passed away during the course of this litigation.

                                                  2
Plaintiffs contend that District of Columbia officials gave consent for an abortion without

consulting with Jane Doe III’s legal representative and without obtaining judgment from a court.

Compl. ¶¶ 21-23.

B.     District of Columbia Law

       District of Columbia law in effect during the period challenged by plaintiffs specifies a

procedure for the certification of incapacity to make health care decisions, and provides a list of

those persons authorized to make health care decisions for someone so certified. D.C. Code § 21-

2204(a) states: “Mental incapacity to make a health-care decision shall be certified by 2

physicians who are licensed to practice in the District and qualified to make a determination of

mental incapacity.” Section 21-2210 then directs:

       In the absence of a durable power of attorney for health care and provided that the
       incapacity of the principal has been certified in accordance with § 21-2204, the
       following individuals, in order of priority set forth below, shall be authorized to
       grant, refuse or withdraw consent on behalf of a patient with respect to the
       provision of any health-care service, treatment, or procedure.

D.C. Code § 21-2210(a). The provision then lists the following eight individuals: a court-

appointed guardian or conservator, a spouse or domestic partner, an adult child, a parent, an adult

sibling, a religious superior if the patient is a member of a religious order, a close friend, and the

nearest living relative. Id. The decision to grant, refuse or withdraw consent shall be based on a

good faith belief as to the best interests of the patient if the wishes of the patient are unknown and

cannot be ascertained. Id. § 21-2210(b).

       These laws were supplemented in 1998 with the “Mentally Retarded Citizens Substituted

Consent for Health Care Decisions Emergency Amendment Act of 1998,” a temporary law that

was reauthorized several times. This Act stated that if an MRDDA consumer is certified as an


                                                   3
incapacitated individual in accordance with D.C. Code § 21-2204 and there is no known person

reasonably available, mentally capable, and willing to act pursuant to D.C. Code § 21-2210, the

MRDDA Administrator is authorized to “grant, refuse or withdraw consent on behalf of a

customer with respect to the provision of a health care service, treatment or procedure provided

that two licensed physicians have certified in writing that the health care service, treatment, or

procedure is clinically indicated to maintain the health of the customer.” Pls.’ Ex. 1, D.C. Act 12-

554 (Dec. 30, 1998).3

C.     District of Columbia Custom and Policy

       Although not the written policy of the District of Columbia before April 1990, it was the

“custom” of the superintendent of Forest Haven, a MRDDA facility that provided services to the

mentally retarded, to sign consents for elective surgery without having been appointed guardian.

Pls.’ Ex. 4 at 333-335. In 1990, this longstanding custom was set forth in Policy H-18. Pls.’ Ex.

13. Policy H-18 required that, for “treatment and non-invasive diagnostic procedures,”

“[i]nformed consent must be given by the parent or Superintendent/Guardian.” Id. at 2. While

the policy noted that “[f]amily contact is attempted,” Policy H-18, like its informal predecessor,

outlined a consent mechanism by which the agency’s superintendent alone, “on recommendation

from the primary care physician, dental officer, or the Chief of Health Services signs the

authorization form . . . granting the necessary permission for treatment.” Id.

       In 1992, Policy H-18 was replaced with Policy H-6. Pls.’ Ex. 14. While the new policy

incorporated Policy H-18’s language regarding obtaining consent for treatment and procedures,



       3
        Unless specified otherwise, all citations to plaintiffs’ exhibits refer to the exhibits
accompanying plaintiffs’ motion for partial summary judgment [#167].

                                                  4
Policy H-6 stated, “[i]nformed consent must be given by the parent or Guardian,” eliminating the

“Superintendent” as an independent provider of informed consent. Id. at 2. However, it also

stated that the MRDDA Administrator “will sign” the consent form after being “adequately

advised” of the medical need for the procedure, “alternative treatments, expected outcome . . . ,

[and the] nature and degree of risks.” Id. at 3.

       In 1998, Policy H-6 was again superseded, this time by a policy that contained greater

requirements for finding, informing and obtaining consent from family members. Pls.’ Ex. 15.

Where the MRDDA was able to locate family members to provide consent, the treating physician

would be advised to contact the family member for consent. Id. at 4. Where the MRDDA was

not able to locate a family member willing to consent, the MRDDA would prepare a package of

information including materials provided by the physician and forward it to the then Office of

Corporation Counsel for the District of Columbia with a cover letter requesting appointment of a

guardian for the patient. Id. at 5-6.

       This policy was replaced in 2003 (“2003 Policy”). Pls.’ Mot. Prelim. Inj. Ex. 5 [#104].

The 2003 policy indicates that “[e]fforts should be made to provide information and explanations

at the level of consumer comprehension,” and that family members should be notified of a

contemplated medical procedure and “given an opportunity to grant consent.” Id. at 10. In cases

where the consumer is certified as incapacitated and “there is no family members [sic] or other

person available or willing to provide consent,” the 2003 Policy indicates that the MRDDA

Administrator “is authorized to grant, refuse or withdraw consent on behalf of a consumer”

provided that “two (2) licensed physicians have certified, in writing, that the health care service,

treatment, or procedure is clinically indicated to maintain the health of the consumer.” Id. at 11.


                                                   5
D.     Procedural Background

       This case is before the court on remand from the Court of Appeals after that court’s review

of and decision on this court’s rulings granting plaintiffs’ motions for an injunction and summary

judgment. In 2005, this court held that the MRDDA’s failure to inquire into the wishes of

consumers before consenting to elective surgeries on their behalf was unlawful. The court

enjoined the District of Columbia: (1) from consenting to elective surgical procedures for

MRDDA consumers under the 2003 policy; (2) to follow the substituted consent standard, as

provided by D.C. Code § 21-2210, in determining whether to grant, refuse, or withdraw consent

for any elective surgery on any MRDDA consumer; and (3) to comply with the specific

requirements of section 21-2210(b) by attempting to ascertain the “known wishes of the patient,”

an inquiry which is not limited to but which must include documented reasonable efforts to

communicate with that person regarding her wishes. Order, Does I though III v. District of

Columbia, Civ. Act. 01-02398 (April 29, 2005) [#112]. The order stated that if, after such

inquiries, the wishes of the patient were unknown or could not be ascertained, the District of

Columbia must then make a good faith determination of the best interests of the patient. Id. at 2.

       Explaining its rationale for deciding to grant the injunction, the court found that the

plaintiffs had identified two defects in the MRDDA’s current consent policy which assertedly

caused violations of their rights. Does v. District of Columbia, 374 F. Supp. 2d 107, 112 (D.D.C.

2005). First, the plaintiffs alleged that the MRDDA consents to elective surgical procedures

without attempting to speak with or otherwise ascertain the wishes or concerns of the affected

consumer. Id. at 112. Second, plaintiffs alleged that the MRDDA staff ignores and overrides

family members who refuse consent to the consumer’s proposed surgery. Id. This court held that


                                                 6
plaintiffs had shown a likelihood of success on the first of these allegations because plaintiffs had

a right of bodily integrity that is violated when the substituted judgment procedure is not

followed, including attempting to ascertain the wishes or concerns of the affected consumers. Id.

at 116. As to the second allegation, the court found that there were substantial uncertainties

concerning whether the MRDDA actually ignores and overrides family members who refuse to

consent and therefore held that it was inappropriate to grant preliminary injunctive relief on that

claim. Id. at 116-17. This court later granted partial summary judgment to the plaintiffs, holding

the District of Columbia liable pursuant to 42 U.S.C. § 1983 on the basis of the findings it made

when it granted plaintiffs’ motion for a preliminary injunction. Does I through III v. District of

Columbia, 232 F.R.D. 18, 33 (D.D.C. 2005).

       The Court of Appeals reversed this court’s grant of summary judgment, vacated this

court’s injunction, and directed the entry of judgment for the District of Columbia with respect to

plaintiffs’ demand for a declaratory judgment. Doe ex rel. Tarlow v. District of Columbia, 489

F.3d 376, 384 (D.C. Cir. 2007). On appeal, the District of Columbia argued that neither District

of Columbia statutory law nor the Due Process Clause of the Fifth Amendment requires the

MRDDA to consider the healthcare wishes of intellectually disabled patients who have always

lacked mental capacity to make healthcare decisions for themselves. Exercising de novo review,

the Court of Appeals held that the 2003 Policy complies with District of Columbia law and the

requirements of procedural and substantive due process. Id.

       The Court of Appeals held further that the MRDDA Administrator need not attempt to

ascertain the wishes of consumers found to lack the capacity to make health care choices under

District of Columbia law. Id. at 381. Because plaintiffs have never been able to make informed


                                                  7
choices regarding their medical treatment, the Court of Appeals reasoned, their true wishes with

respect to a recommended surgery are unknown and cannot be ascertained for the purposes of

section 21-2210(b). Id. For the same reason, the Court of Appeals rejected plaintiffs’ federal

procedural due process claim. Id. at 382. Similarly, the Court of Appeals held that the District of

Columbia had not violated plaintiffs’ substantive due process rights because plaintiffs failed to

show that the consideration of the wishes of a never-competent patient is deeply rooted in this

Nation’s history and tradition and implicit in the concept of ordered liberty. Id. at 383. The Court

of Appeals rejected plaintiffs’ reliance on Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261

(1990), which held that the due process clause permits a state to require clear and convincing

evidence of an incompetent patient’s wishes, articulated when she was competent, as to

withdrawal of life-sustaining treatment, because the plaintiffs never had the capacity to make an

informed and voluntary choice. Id.

       The Court of Appeals “conclude[d] that, to the extent challenged in this case, the 2003

policy is consistent with D.C. statutory law and the Due Process Clause of the Fifth Amendment.”

Id. at 384. It therefore reversed this court’s grant of summary judgment, vacated its injunction,

and directed judgment for defendants with respect to plaintiffs’ demands for declaratory and

injunctive relief. The Court of Appeals did not address the “individual damages claims brought

by [plaintiffs] based on alleged incidents that occurred more than a decade ago, before the

adoption of the 2003 policy.” Id.




                                                 8
                                          II. ANALYSIS

        In their motion for partial summary judgment,4 plaintiffs raise two claims. First, they raise

a claim under 42 U.S.C. § 1983 against the District of Columbia for violation of the procedural

due process and substantive due process rights of Jane Doe I, Jane Doe II, and Jane Doe III under

the Fifth and Fourteenth Amendments to the Constitution. Second, they raise the same claim on

behalf of putative class members. For its part, the District of Columbia seeks summary judgment

on all of plaintiffs’ claims.

A.      The Law of the Case Doctrine Dictates that Plaintiffs’ Motion for Summary
        Judgment Must Be Denied.

        Plaintiffs argue that the Court of Appeals did not address, let alone decide, the issue they

now raise: whether the policies in effect from 1970 until 1998 were constitutional. The policies

during this time, they assert, are not identical to the 2003 Policy upheld by the Court of Appeals

because the MRDDA was not legally authorized to consent to surgery during that time and the

Court of Appeals did not engage the question of whether the MRDDA Administrator possesses

some sort of inherent authority to consent to elective surgery on MRDDA consumers. Further,


        4
           Under FED . R. CIV . P. 56, summary judgment shall be granted if the pleadings,
depositions, answers to interrogatories, admissions on file and affidavits show that there is no
genuine issue of material fact in dispute and that the moving party is entitled to judgment as a
matter of law. Material facts are those “that might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a
motion for summary judgment, the “evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255. The non-moving party’s
opposition must consist of more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth specific facts showing that there
is a genuine issue for trial. FED . R. CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). The non-moving party is “required to provide evidence that would permit a reasonable
jury to find” in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir.
1987). If the evidence is “merely colorable” or “not significantly probative,” summary judgment
may be granted. Anderson, 477 U.S. at 249-50.

                                                  9
plaintiffs contend, the 2003 Policy imposed new requirements on the MRDDA not included in

previous policies. The District of Columbia rejoins that all of the issues plaintiffs now raise were

finally decided, either directly or by implication, by the Court of Appeals or this court’s previous

decisions, and are therefore precluded by the law of the case doctrine. Plaintiffs’ complaint

alleges that the District improperly authorized surgical procedures from 1970 through the present,

and all of the plaintiffs’ current issues, the District of Columbia argues, are exactly the same as

those presented in the complaint.

       The “‘[l]aw-of-the-case doctrine’ refers to a family of rules embodying the general concept

that a court involved in later phases of a lawsuit should not re-open questions decided (i.e.,

established as the law of the case) by that court or a higher one in earlier phases.” Crocker v.

Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995). This includes the mandate rule under

which “an inferior court has no power or authority to deviate from the mandate issued by an

appellate court.” Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 596-97 (D.C. Cir.

2001) (quoting Briggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948)). Thus, “when a case is appealed

and remanded, the decision of the appellate court establishe[s] the law of the case, which must be

followed by the trial court on remand.” Griffin v. United States, 935 F. Supp. 1, 5 (D.D.C. 1995)

(internal citation omitted).

       An issue is precluded by the law-of-the-case doctrine when a higher court has

affirmatively decided the issue, be it explicitly or by necessary implication. PNC Fin. Servs.

Group, Inc. v. C.I.R., 503 F.3d 119, 126 (D.C. Cir. 2007); see Women’s Equity Action League v.

Cavazos, 906 F.2d 742, 751 n. 14 (D.C. Cir. 1990) (“Questions that merely could have been

decided do not become law of the case”) (citing Bouchet v. Nat’l Urban League, 730 F.2d 799,


                                                  10
806 (D.C. Cir.1984)). The law-of-the-case doctrine turns “on whether a court previously decided

upon a rule of law . . . not on whether, or how well, it explained the decision.” Christianson v.

Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (internal quotation marks omitted).

        Here, the Court of Appeals explicitly decided that Jane Doe I, Jane Doe II, Jane Doe III

and similarly situated putative plaintiffs, who have never had the mental capacity to make health

care decisions, do not have a right under District of Columbia law or the Due Process Clause of

the Constitution to have their wishes considered when medical decisions are made on their behalf.

Tarlow, 489 F.3d at 381-82. Similarly, the Court of Appeals explicitly decided that “nothing in

Cruzan supports the view that a person who has never had the capacity ‘to make an informed and

voluntary choice’ with respect to medical treatment has a constitutional right under the Due

Process Clause to have his or her wishes considered.” Id. at 383 (quoting Cruzan, 497 U.S. at

280).

        The Court of Appeals also decided, by necessary implication, that the MRDDA

Administrator’s provision of consent, with respect to consumers found to not have the capacity to

make medical decisions under D.C. Code § 21-2204(a), and where none of the persons identified

in D.C. Code § 21-2210(a) is available or willing to provide or refuse consent, does not violate the

Constitution. Plaintiffs argue that the Court of Appeals decision is not relevant on this point

because the Court of Appeals evaluated the constitutionality of the 2003 policy and it was not

until 1998, after the period they now challenge, that the District of Columbia passed a law

granting such authorization to the MRDDA Administrator. This argument is not persuasive.

        Plaintiffs specifically raised the question of the MRDDA Administrator’s authority before

the Court of Appeals, yet the Court of Appeals did not rely upon the 1998 law as the source of the


                                                 11
MRDDA’s authority in its opinion. Moreover, the Court of Appeals could not have relied upon

the 1998 law because, as plaintiffs have explained to this court and the Court of Appeals, the 1998

law was temporary. In fact, in their brief before the Court of Appeals in 2006, plaintiffs stated

that the temporary legislation was no longer in effect, having expired in 2005. Br. of

Respondents, Tarlow, 2006 WL 3532947, at *44 (D.C. Cir. Nov. 27, 2006). The Court of

Appeals’ decision could not have been based on temporary legislation that was, in fact, expired.

See Bullock v. Carter, 405 U.S. 134, 141 n.17 (1972) (holding that a temporary law suspending

the enforcement of a strict filing fee requirement that had been enjoined by a lower court did not

render the case moot because the injunction would continue to have force and effect after the

temporary law expired).

       In their motion for partial summary judgment, plaintiffs identify three liberty interests

protected by the Fifth and Fourteenth Amendments to the Constitution of which MRDDA

consumers were allegedly deprived without due process by the District of Columbia: “(i) making

medical decisions for themselves,” Pls.’ Mot. Part. Summ. J. at 11 (citing D.C. Code § 21-2203

(presumption of capacity)), “(ii) having medical decisions made for them only by persons legally

authorized to do so,” id. (citing In Re A.C., 573 A.2d 1235, 1237 (D.C. 1990), and D.C. Code §§

7-1305.06, 21-2047, and 21-2210), and “(iii) their right to refuse medical treatment,” id. (citing

Cruzan, 497 U.S. at 278), “all as may be exercised only by lawfully authorized representatives,”

id. (citing D.C. Code § 21-2210(a)). At oral argument, plaintiffs made clear that they primarily

contend that prior to 1998 the MRDDA Administrator violated these liberty interests by

consenting to elective medical procedures without any authority to do so. As a component of that

argument, plaintiffs secondarily assert that the MRDDA Administrator violated these liberty


                                                 12
interests by consenting to elective surgeries without attempting to obtain consent from, or

ignoring the wishes of, those persons authorized to make health care decisions for plaintiffs under

D.C. Code § 22-2210(a). See Pls.’ Mot. Summ. J. at 13 (“Because D.C. law at the time expressly

provided for substituted consent to be exercised by a hierarchy of individuals in § 21-2210, the

MRDDA’s decades-long practice of making medical decisions outside that hierarchy flouted the

very procedure that had been adopted for making health-care decisions for incapacitated

persons.”).

        Under the law of this case, plaintiffs’ primary contention must be rejected. The Court of

Appeals upheld as constitutional the 2003 Policy which directs the MRDDA Administrator to

consent to medical procedures under certain circumstances. In upholding this policy, the Court of

Appeals decided that the MRDDA Administrator has the authority to consent to such procedures,

notwithstanding the statutes cited by plaintiffs, and that by authorizing to elective surgeries, the

Administrator did not violate MRDDA consumers’ liberty interests. While plaintiffs point to the

1998 law temporarily granting the MRDDA Administrator this authority as the distinguishing

factor between the constitutional 2003 Policy and the unconstitutional policies prior to 1998, as

discussed above, the Court of Appeals could not have relied on this temporary law in deciding

that the MRDDA Administrator had the authority to consent. Therefore, just by consenting to an

elective medical procedure, the MRDDA Administrator does not violate any of the liberty

interests asserted by the plaintiffs.

        The Court of Appeals did not reach plaintiffs’ second contention – namely that the

MRDDA Administrator violated their liberty interests by consenting to elective surgeries without

first attempting to obtain consent from, or after ignoring the wishes of, those persons authorized to


                                                  13
make medical decisions for MRDDA consumers in D.C. Code § 21-2210(a). Before the appeal in

this case, this court decided that “there were substantial uncertainties concerning whether the

MRDDA actually does” ignore or override family members who refuse consent, and so concluded

that it was inappropriate to grant preliminary injunctive relief on that claim. Does, 374 F. Supp.

2d at 116-17. Once again, the court finds that a genuine issue of material fact remains in dispute

as to whether the MRDDA had a custom or policy of failing to contact, or ignoring or overriding

the wishes of, those persons authorized to consent on MRDDA consumers’ behalf. Consequently,

summary judgment on this issue is not appropriate.5

B.     The District of Columbia’s Motion for Summary Judgment Must Be Granted in Part
       and Denied in Part.

       The District of Columbia moves for summary judgment on all of the claims raised in

plaintiffs’ complaint. Plaintiffs’ complaint alleges three counts – Count I alleges constitutional

and civil rights violations under 42 U.S.C. § 1983 on behalf of the named plaintiffs, Count II

alleges constitutional and civil rights violations under 42 U.S.C. § 1983 on behalf of putative class

members, and Count III demands injunctive relief for these violations. As plaintiffs recognize, the

Court of Appeals ruled that injunctive relief is inappropriate, and therefore the court turns to

Counts I and II, which are identical except that one is on behalf of the named plaintiffs and the

other is on behalf of the putative class.



       5
          In their reply in support of their motion for partial summary judgment and in their
response to the District of Columbia’s motion for summary judgment, plaintiffs argue for the first
time in this litigation that the District of Columbia failed to follow the “best interests” standard
required by D.C. Code § 21-2210(b) and the Court of Appeals’ opinion. Plaintiffs may not raise
a new argument at this stage of the litigation. Moreover, plaintiffs do not appear to argue that the
District of Columbia’s alleged failure to follow the best interests standard is a violation of their
federal due process rights.

                                                 14
       The actions that plaintiffs allege violate the Constitution in their complaint include: (1)

the District of Columbia’s grant of consent without legal authority, Complaint ¶¶ 32, 34, 36, 39,

47, 49; (2) the District of Columbia’s failure to ascertain the intent of Jane Doe I, Jane Doe II, and

Jane Doe III with regard to the surgeries or obtain proper informed consent on their behalf, id. ¶¶

33, 46; and (3) the District of Columbia’s failure to provide them with any pre-deprivation legal

process whatsoever, id. ¶¶ 33, 41, 46, 54.6 Plaintiffs explain their second allegation, stating that

“no attempt was ever made to consult with the individual’s family or guardian prior to authorizing

these surgeries,” and “[n]o attempt was ever made to confer with a family member or guardian,

nor was any attempt made to obtain legal consent from an authorized representative as required by

D.C. statutes and court decisions.” Complaint ¶¶ 8, 11.

       The Court of Appeals decided against plaintiffs on most of these claims. As discussed in

subsection A, supra, the Court of Appeals decided that the District of Columbia was legally

authorized to consent to MRDDA consumers’ surgeries. It also decided that the District of

Columbia was not constitutionally required to inquire into the wishes of consumers who have

never been competent to make medical decisions for themselves. Finally, in upholding the 2003

Policy, the Court of Appeals decided that the 2003 Policy afforded plaintiffs adequate legal

process and therefore this court finds that prior policies did as well. To be sure, there are some

differences between the legal process provided by the 2003 Policy and prior policies. Plaintiffs

point specifically to two provisions of the 2003 Policy not present in prior policies: (1) the

requirement that two physicians (instead of one) certify that the proposed surgery is clinically



       6
           Plaintiffs also raise an equal protection claim in their complaint. Complaint ¶¶ 43, 55.
Plaintiffs do not pursue this claim on remand. Pls.’ Mot. Part. Summ. J. at 5.

                                                 15
indicated to maintain the health of the patient, and (2) the requirement that District of Columbia

care givers make efforts to discuss the surgery with the patient at the level of patient

comprehension. Pls.’ Opp. to Def.’s Mot. Summ. J. at 3-4. Plaintiffs, however, fail to explain

how these two provisions make the difference between unconstitutional and constitutional legal

process. Therefore, as to these claims, the Court of Appeals decision dictates that summary

judgment must be granted in the District of Columbia’s favor.

       As discussed supra, however, the Court of Appeals did not reach the question of whether

the District of Columbia violated MRDDA consumers’ liberty interests in bodily integrity by

failing to obtain consent from, or ignoring or overriding the wishes of, those persons authorized

by District of Columbia law to consent on MRDDA consumers’ behalf. By deciding that the

MRDDA Administrator did have authority to consent, the Court of Appeals did not decide that

she could ignore or override the wishes of those specifically authorized to make such decisions

under District of Columbia law. A genuine issue of material fact remains in dispute as to whether

the District of Columbia had a custom or policy of failing to obtain consent from, or ignoring or

overriding the wishes of, those authorized to consent under D.C. Code § 21-2210, and therefore

summary judgment is inappropriate on this contention.

C.     Plaintiffs’ Second Amended Motion for Class Certification Must Be Denied.

       Because the court has not granted summary judgment on liability to the plaintiffs, their

second amended motion for class certification for damages is denied.




                                                  16
                                         III. CONCLUSION

          For the foregoing reasons, it is this 7th day of January 2009, hereby

          ORDERED that plaintiffs’ motions for partial summary judgment [#167] and for class

certification [#166] are DENIED; and further

          ORDERED that defendants’ motion for summary judgment [#172] is GRANTED in part

and DENIED in part; and it is further

          ORDERED that by January 23, 2009, the parties shall submit a joint case management

report which shall include their proposal as to how the court should proceed in order to resolve the

remaining issues in this case. If the parties are unable to agree, each side shall submit its own

report.


                                                                        Henry H. Kennedy, Jr.
                                                                        United States District Judge




                                                   17
