D.L, et al., on behalf of themselves and others similarly situated, Plaintiffs,
THE DISTRICT OF COLUMBIA, et al., Defendants.
ROYCE C. LAMBERTH, District Judge.
Pending before the Court are the plaintiffs' Motion for Class Certification and Reinstatement of Findings of Liability and Order Granting Relief ; the plaintiffs' Motion to Amend the First Amended Complaint ; and the defendants' Motion to Dismiss for Lack of Jurisdiction . Upon consideration of these motions, the oppositions thereto, and all replies, the Court GRANTS IN PART and DENIES IN PART the plaintiffs' Motion for Class Certification and Reinstatement of Findings of Liability and Order Granting Relief; GRANTS the plaintiffs' Motion to Amend the First Amended Complaint; and DENIES the defendants' Motion to Dismiss for Lack of Jurisdiction.
Plaintiffs-residents of the District of Columbia and former preschool-age children with various disabilities-filed suit in 2005, alleging that the District failed to provide them a free appropriate public education ("FAPE") in violation of the Individuals with Disabilities Education Act ("IDEA" or "the Act").
Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). In exchange for federal funding, the IDEA requires that states and the District of Columbia "establish policies and procedures to ensure... that free appropriate public education [FAPE]... is available to disabled children." Reid ex rel. Reid v. District of Columbia , 401 F.3d 516, 518 (D.C. Cir. 2005) (internal quotations omitted); see also 20 U.S.C. § 1412(a)(1)(A). Under the IDEA, "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction." Reid , 401 F.3d at 518. Instead, the IDEA imposes an affirmative obligation on school systems to "ensure that all children with disabilities residing in the State... regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated." Id . at 519 (internal quotations omitted); § 1412(a)(3)(A). The District's laws implementing the IDEA require that once a potential candidate for special education services is identified, the District must conduct an initial evaluation and make an eligibility determination within 120 days. D.C. Code § 38-2561.02(a). The duties to identify, evaluate, and determine eligibility for disabled children are collectively known as the "Child Find" obligation.
Children under three years of age who are identified, evaluated, and determined eligible may receive early intervention services under Part C of the IDEA. For these children, the Act requires a "smooth and effective" transition from Part C's early intervention services to Part B's preschool special education programs. 20 U.S.C. § 1412(a)(9). A smooth and effective transition is one that (1) begins no less than 90 days prior to the child's third birthday; (2) does not include a disruption in services between Part C and Part B services; and (3) involves Part B personnel. Pls.'s Mot. for Class Cert. and Reinstatement of Findings of Liability and Order Granting Relief [hereinafter Pls.'s Class Cert. Mot.], Ex. 6 (Expert Report of Carl J. Dunst, May 11, 2009), at 14 [hereinafter Dunst Report]; 34 C.F.R. § 303.209. The transition process must include a conference between the child's family and school officials to determine eligibility for Part B services and to develop a transition plan and an Individualized Education Program ("IEP"). The goal is "a seamless transition between services" under Parts C and B of the Act. 34 C.F.R. § 303.209.
When executed properly, the early intervention mandated by the IDEA "can work a miracle, " allowing an estimated 75-80% of disabled children to enter "kindergarten alongside every other ordinary five-year-old-without needing further supplemental special education." DL v. District of Columbia , 845 F.Supp.2d 1, 5 (D.D.C. 2011).
The plaintiffs allege that the District has denied this miracle to a large number of disabled children. Specifically, the plaintiffs aver that the District has engaged in a practice of failing to identify disabled children, failing to evaluate and make eligibility determinations for identified children, and failing to provide a smooth and effective transition from Part C to Part B special education services. And because they allege that the District's failure is pervasive and systemic, plaintiffs sought to represent a class of children who, like themselves, were denied special education services by the District.
In August 2006, this Court certified a plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), defining the class as
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive.
DL v. District of Columbia , 237 F.R.D. 319, 324 (D.D.C. 2006).
Following extensive discovery on the District's IDEA performance through 2007, the parties filed cross motions for summary judgment. The parties did not dispute that "the systems in place to serve the birth-to-five population in the District of Columbia were inadequately designed, supported, and facilitated across many years." DL v. District of Columbia , 730 F.Supp.2d 84, 96 (D.D.C. 2010). The District's systemic failure to comply with the IDEA resulted in yearly citations for noncompliance from the federal Office of Special Education Programs ("OSEP"). Id . at 97. Finding no genuine dispute that the District's attempts to identify, evaluate, and determine eligibility for disabled children were inadequate, the Court granted summary judgment on liability as to the plaintiff class's Child Find claim. Id .
Additionally, the parties agreed that "the procedures used by [the District] to screen children exiting Part C were in many cases not necessary and delayed provision of preschool special education." Id . at 98. Moreover, these screening procedures "were unreliable and were not always aligned with accepted practices in the field." Id . The Court therefore granted summary judgment on liability as to the plaintiff class's Part C to Part B transition claim. Id .
As the data available at the time of summary judgment was limited to the period before 2007, summary judgment and the initial findings as to the District's liability were limited to that time period. On April 6 and 7, 2011, the Court held a bench trial to determine the District's liability for the period of 2008 through the trial date.
Based on evidence presented at trial, the Court found that the District provided special education services to less than 6% of its total child population, despite statistical projections that the District should identify and serve at least 12%. DL , 845 F.Supp.2d at 10. Of those disabled children who were identified, the District failed to provide timely evaluations to 25-45% and timely eligibility determinations to 56.75%. Id . at 11. As for transitions from Part C to Part B services, the District provided smooth and effective transitions for 8.22% of children in 2008, 30.25% in 2009, and between 38-79% in 2010-2011. Id . at 12. The Court noted the District's efforts to reform its special education services in response to this litigation, but found that even given those reforms, the District's policies were inadequate to meet its obligations under the IDEA. Id . at 15-17. Indeed, notwithstanding its reform efforts, the District was cited by the federal OSEP for noncompliance for each of the four years prior to trial. Id . at 17. Thus, the Court found that the District's failure to institute adequate Child Find practices resulted in the denial of a FAPE to a substantial number of disabled children and that the District failed to comply with its legal duty to provide a smooth and effective transition to a significant portion of disabled children. Id . at 21-23. The Court also found that the District demonstrated bad faith or gross misjudgment by knowingly failing to comply with the IDEA and therefore violated Section 504 of the Rehabilitation Act, which prohibits discrimination in programs receiving federal funding. Id . at 23; 29 U.S.C. § 749(a).
Given these findings, the Court granted the plaintiff class declaratory relief and imposed a structural injunction enjoining the District to comply with its legal obligations under the IDEA. Id . at 24-30.
Two months after the April 2011 trial, and before this Court issued its final decision, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541 (2011), which clarified the proper interpretation of the commonality requirement for class certification under Rule 23(a)(2). Wal-Mart involved a putative class of one and a half million women, all current or former employees of Wal-Mart, alleging that "the discretion exercised by their local supervisors over pay and promotion matters violate[d] Title VII by discriminating against women." 131 S.Ct. at 2546. Noting that the pay and promotion decisions were made by thousands of geographically-dispersed managers, the Court held that "[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored ." Id . at 2552 (emphasis in original). To establish commonality, the Court held that a class must present a common contention that is "capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id . at 2551.
Based in part on the Wal-Mart decision, the District sought to decertify the class, arguing that the plaintiff class improperly "bundled together [in their Complaint] multiple different allegations of a variety of different provisions of the IDEA, the Rehabilitation Act, and local District of Columbia law" and "amalgamat[ed]... a variety of provisions of a single statutory scheme." DL v. District of Columbia , 277 F.R.D. 38, 42 (D.D.C. 2011). In effect, the District argued that the IDEA could be violated in many different ways, and that it was improper to combine these multiple forms of IDEA violations in one broad class. The plaintiffs responded by seeking to recertify the class as four distinct subclasses, each consisting, respectively, of disabled children that the District failed to (1) identify; (2) timely evaluate; (3) determine eligible; and (4) provide a smooth and effective transition from Part C to Part B services. This Court denied the District's motion, holding that each member of the plaintiff class had suffered a common injury, namely "denial of their statutory right to a free appropriate public education." Id . at 45. Moreover, this Court held that the plaintiffs presented the common question whether class members received a FAPE and noted that the class members' "differing allegations only represent the differing ways in which defendants have caused class members' common injury." Id . The District appealed.
On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed this Court's certification of the plaintiff class, holding that
After Wal-Mart it is clear that defining the class by reference to the District's pattern and practice of failing to provide FAPEs speaks too broadly because it constitutes only an allegation that the class members "have all suffered a violation of the same provision of law, " which the Supreme Court has now instructed is insufficient to establish commonality given that the same provision of law "can be violated in many different ways." Wal-Mart, 131 S.Ct. at 2551. In the absence of identification of a policy or practice that affects all members of the class in the manner Wal-Mart requires, the district court's analysis is not faithful to the Court's interpretation of Rule 23(a) commonality.
DL v. District of Columbia , 713 F.3d 120, 126 (D.C. Cir. 2013). The Circuit therefore vacated the class certification order and remanded the case to this Court "for reconsideration of whether a class, classes, or subclasses may be certified, and if so, thereafter to redetermine liability and appropriate relief." Id . at 129.
On remand, the plaintiffs filed a motion seeking certification of four subclasses and a motion to amend the complaint to reflect the subclasses. For its part, the District opposes each of the plaintiffs' motions and seeks to dismiss the complaint for lack of jurisdiction. The Court will consider each of these motions in turn.
I. CLASS CERTIFICATION
A. Legal Standard
Class litigation is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki , 442 U.S. 682, 700-01 (1979). Lest the exception swallow the rule, Federal Rule of Civil Procedure 23 imposes prerequisites to class certification that "effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 156 (1982). Thus, under Rule 23(a), the party seeking certification must demonstrate that
(1) the class is so numerous that joinder of all members is impracticable [numerosity];
(2) there are questions of law or fact common to the class [commonality];
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and
(4) the representative parties will fairly and adequately protect the interests of the class [adequacy].
Fed. R. Civ. P. 23(a); see also Wal-Mart , 131 S.Ct. at 2551. ("A party seeking class certification must affirmatively demonstrate his compliance with [Rule 23]"). In addition to meeting each of these prerequisites, the class must fit at least one of the three "types" described in Rule 23(b). Here, plaintiffs seek certification under 23(b)(2), which applies when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(2).
Once a class is certified, Rule 23 provides district courts with "ample tools" to manage the class. Marisol A. v. Giuliani , 126 F.3d 372, 379 (2d Cir. 1997). One such tool is the ability to certify subclasses that must independently meet the requirements of Rule 23 and are treated as separate classes. Fed.R.Civ.P. 23(c)(5); M.D. ex rel. Stukenberg v. Perry , 675 F.3d 832, 848 (5th Cir. 2012) (remanding to district court for "a rigorous analysis regarding whether the class claims of each of the subclasses meets the requirements of Rule 23"). Certification of subclasses is particularly suitable in a case such as this, where each subclass "consists of smaller groups of children, each of which has separate and discrete legal claims pursuant to particular federal and state constitutional, statutory, and regulatory obligations of the defendants." Marisol A ., 126 F.3d at 378. In the end, "as long as each subclass is homogeneous, in the sense that every member of the subclass wants the same relief, and each subclass otherwise satisfies the requirements for certifying a class, so that each could be the plaintiff class in a separate class action, there is no objection to combining them in a single class action." Johnson v. Meriter Health Servs. Employee Ret. Plan , 702 F.3d 364, 368 (7th Cir. 2012).
B. The Proposed Subclasses
Plaintiffs propose certification of the ...