United States District Court, District of Columbia
MEMORANDUM OPINION DENYING PLAINTIFFS' MOTION FOR
LEAVE TO AMEND COMPLAINT
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE
2016, the D.C. Office of the State Superintendent of
Education (“OSSE”) issued regulations that
imposed minimum education requirements for certain childcare
providers in Washington. Plaintiffs in this case promptly
filed suit challenging those requirements, but the Court
dismissed their complaint based on an unusual combination of
standing, ripeness, and mootness problems. Presently before
the Court is Plaintiffs' motion for leave to file an
amended complaint. For the reasons provided below, the Court
denies this motion, as the new complaint fails to cure the
Court explained in greater detail in its previous opinion
dismissing Plaintiffs' complaint, OSSE is the state
education agency for the District of Columbia and is
“authorized to ‘formulate and promulgate rules
necessary to carry out its functions.'” Sanchez
v. Office of State Superintendent of Educ. (Sanchez I),
Civ. No. 18-975, 2019 WL 935330, at *1 (D.D.C. Feb. 26, 2019)
(quoting D.C. Code § 38-2602(b)(11)); see also
D.C. Code § 38-2601.01. That authority includes the
power to regulate “staff qualification[s]” at any
“child development facility, ” D.C. Code §
38-2602(b)(11) -defined as a “center, home, or other
structure that provides care and other services, supervision,
and guidance for children, infants, and toddlers on a regular
basis” but that is not “a public or private
elementary or secondary school engaged in legally required
educational and related functions or a pre-kindergarten
education program, ” id. § 7-2031(3).
See Id. § 7-2036(a)(1)(A) (delegating
regulatory power to Mayor); Mayor's Order 2009-130, 56
D.C. Reg. 6883 (July 16, 2009) (Mayor delegating power to
December 2016, OSSE issued regulations that set minimum
education requirements for staff at these child development
facilities. See generally 63 D.C. Reg. 14, 640-14,
813 (Dec. 2, 2016). Most of the requirements did not take
immediate effect, however. Depending on the position, the
regulations built in a grace period of anywhere between three
and six years before the requirements became binding.
See, e.g., 63 D.C. Reg. 14, 786, 14, 799 (original
versions of D.C. Mun. Regs. tit. 5-A1, §§ 164.1(b),
(c) and 170.2(a)(1)(2)). The regulations also permitted OSSE
to grant two different kinds of waivers. First, certain types
of staff positions-although not all-would be eligible for
experience waivers, available to individuals who had
“continuously served” in the relevant position
for ten or more years as of December 2016. E.g.,
D.C. Mun. Regs. tit. 5A-1 §§ 164.3, 165.4. Second,
hardship waivers could be granted if (1) “[t]he
demonstrated . . . economic impact or hardship on the
Facility or staff member [was] sufficiently great to make
immediate compliance impractical despite diligent
efforts;” (2) “[t]he [f]acility or staff member
[was] meeting or exceeding the intent of the regulation for
which the waiver [was] requested;” and (3) “[t]he
health and welfare of staff and children [we]re not
jeopardized.” Id. § 106.1.
the three Plaintiffs in this case hold childcare development
facility staff positions that are covered by the OSSE
regulations. Altagracia Sanchez has operated a licensed
daycare out of her house since 2006, which currently cares
for nine children. Am. Compl. ¶¶ 161-63, ECF No.
15-2. According to the regulations, this makes her an
“expanded home caregiver, ” required to hold
“an associate's or more advanced degree . . . with
a major in early childhood education, early childhood
development, child and family studies or a closely related
field.” D.C. Mun. Regs. tit. 5-A1, § 170.2(a).
When the regulations first went into effect, expanded home
caregivers had until December 2, 2019 to earn the requisite
degree, and they were not eligible for experience waivers.
See 63 D.C. Reg. 14, 799 (original version of D.C.
Mun. Regs. tit. 5-A1, § 170.2). But in June 2018, after
Plaintiffs filed their original complaint, OSSE amended the
regulations-extending the grace period for expanded home
caregivers to December 2, 2023 and making experience waivers
available to those that were otherwise eligible. See
D.C. Mun. Regs. tit. 5-A1, § 170.2(a), (c); 65 D.C. Reg.
7034-7036 (June 29, 2018).
second Plaintiff, Dale Sorcher, is what the regulations call
a “teacher in a child development center.”
See D.C. Mun. Regs. tit. 5A-1, § 165. She works
with children up to age three at a licensed daycare center
associated with a Jewish preschool. Am. Compl. ¶¶
192-95. Sorcher already has a bachelor's degree and two
master's degrees, but none of them are in a field related
to early childhood, and she does not have the requisite
experience for an experience waiver. See Id.
¶¶ 192, 201. As a result, the regulations require
her to either seek a hardship waiver or obtain twenty-four
college credit hours related to early childhood. D.C. Mun.
Regs. tit. 5-A1, §§ 165.1(b), 165.4. When the
regulations were first issued, Sorcher had until December 2,
2020 to earn the credits, see 63 D.C. Reg. 14, 791
(original version of D.C. Mun. Regs. tit. 5-A1, §
165.1), but after the June 2018 amendments, she now has until
December 2, 2023, see D.C. Mun. Regs. tit. 5-A1,
Sanchez and Sorcher, the third Plaintiff, Jill Homan, does
not work at a child development facility and is not subject
to the OSSE regulations. Instead, Homan and her partner have
two young children and use a daycare center in D.C. where the
staff members will need to meet the new education
requirements. See Am. Compl. ¶¶ 233-236.
She is concerned “that day-care providers who are
exhausted, stressed, and overwhelmed by having to attend
college, work full time, and care for their own
families” will either “provide worse care than
those who do not have to worry about attending school,
” id. ¶ 251, or simply leave their jobs
altogether, see Id. ¶ 248.
their original complaint and their proposed amended one,
Plaintiffs raise three challenges to the OSSE regulations:
(1) they allege that the education requirements exceed the
authority lawfully delegated to OSSE; (2) they claim that the
requirements violate their Fifth Amendment substantive due
process rights to pursue honest livings and make reasonable
childcare choices; and (3) they say that the regulations draw
“arbitrary and irrational” distinctions between
childcare providers, in violation of the Fifth
Amendment's guarantee of equal protection. Am. Compl.
¶¶ 264-89. But in dismissing the original
complaint, the Court never reached the merits of these
claims. It instead concluded that the claims were not
justiciable as asserted by any of the three Plaintiffs.
Homan, the Court held, lacked standing because the injuries
that she alleged were based on conjecture and could not be
traced to the OSSE regulations. See Sanchez I, 2019
WL 935330, at *6. Sanchez's claims were either moot or
unripe because, in light of the June 2018 amendments, she was
eligible for an experience waiver but had not yet applied.
Id. at *8. And Sorcher's claims were unripe
because she had until December 2023 to seek a hardship
waiver, for which she had not yet applied. Id.
now argue that their proposed amended complaint solves the
problems that the Court previously identified. The new
complaint alleges that Homan's daycare center has
“become more expensive under the college requirement,
” Am. Compl. ¶ 252, and that staff members have
now begun to leave to avoid having to comply with the
requirement, see Id. ¶¶ 249-50. Sorcher,
the proposed amended complaint says, is not interested in
seeking a hardship waiver because, even if one were granted,
it would only apply to her current employer; she wants
“the freedom to work anywhere in the child-care field
for anyone.” Id. ¶ 218; see also
Id. ¶¶ 215-17. Finally, Sanchez, the proposed
amended complaint clarifies, has been granted an experience
waiver, meaning she no longer has to comply with the
education requirement. Id. ¶¶ 189-91;
see also Pls.' Reply Supp. Mot. Am. Compl. at 5,
ECF No. 9. But according to Plaintiffs, this does not moot
Sanchez's claims because she will have to apply to renew
her waiver in three years, and because she continues to seek
nominal damages. Unsurprisingly, Defendants-OSSE and the
District of Columbia itself-oppose Plaintiffs' motion for
leave to amend. They argue that all of Plaintiffs' claims
remain non-justiciable for the same reasons provided in the
Court's decision dismissing the original complaint.
Rule 15(a)(2) of the Federal Rules of Civil Procedure, courts
“should freely give leave” to amend a complaint
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). But that “[g]enerous standard
notwithstanding, courts may deny leave to amend for such
reasons as ‘undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.” Connecticut
v. U.S. Dep't of Interior, 363 F.Supp.3d 45, 54
(D.D.C. 2019) (second alteration in original) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)). This case
concerns only futility, which is an appropriate basis to deny
leave “if the proposed claim[s] would not survive a
motion to dismiss.” James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996).
in reviewing Plaintiffs' motion, “the Court is
required to assume the truth of the allegations in the
amended complaint and construe them in the light most
favorable to the movant.” Flaherty v.
Pritzker, 322 F.R.D. 44, 46 (D.D.C. 2017) (citing
Caribbean Broad. Sys. v. Cable & Wireless PLC,
148 F.3d 1080, 1086 (D.C. Cir. 1998)). The Court need not,
however, “accept inferences unsupported by the facts
alleged or legal conclusions that are cast as factual
allegations.” Gregorio v. Hoover, 238
F.Supp.3d 37, 44 (D.D.C. 2017) (quoting Rann v.
Chao, 154 F.Supp.2d 61, 64 (D.D.C. 2001)). And because
here the deficiencies with the previous complaint went to
subject matter jurisdiction, the allegations “bear
closer scrutiny” than they would in resolving a Rule
12(b)(6) motion to dismiss for failure to state a claim.
Bennett v. Ridge, 321 F.Supp.2d 49, 52 ...