ALTAGRACIA SANCHEZ, ET AL., APPELLANTS v. OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION, AND DISTRICT OF COLUMBIA, APPELLEES
No. 19-7072
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided May 29, 2020
Argued May 11, 2020
Consolidated with 19-7085
Appeals from the United States District Court for the District of Columbia (No. 1:18-cv-00975)
Graham E. Phillips, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees/cross-appellants. With him on the briefs were Karl A. Racine, Attorney
Before: HENDERSON, GARLAND, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The three plaintiffs in this case challenge the validity of District of Columbia regulations that impose minimum education requirements for certain childcare providers. The district court did not reach the merits of the plaintiffs’ complaint, holding instead that the case was non-justiciable on grounds of standing, ripeness, and mootness. Concluding that the case is justiciable, we remand it to the district court for consideration of the merits of the plaintiffs’ allegations.
I
In 2016, the District of Columbia Office of the State Superintendent of Education (OSSE) issued regulations that establish minimum education requirements for childcare staff at child development facilities. 63 D.C. Reg. 14,640 (Dec. 2, 2016). Under the 2016 regulations, plaintiff Dale Sorcher, whom the regulations refer to as a “teacher in a child development center” and who already has advanced degrees in other fields, was required to earn twenty-four credit hours in an early childhood field by December 2020. See
Under the regulations, OSSE may grant “hardship waivers” of the education requirements to facilities facing “sufficiently great” economic hardship.
Along with plaintiff Jill Homan, a mother with two children in daycare, Sorcher and Sanchez brought a facial challenge to OSSE‘s regulations. The regulations, the plaintiffs alleged, violate the nondelegation doctrine, substantive due process, and equal protection.
After the plaintiffs filed suit in 2018, OSSE amended its regulations to extend the compliance deadlines to December 2023. 65 D.C. Reg. 7,032 (June 29, 2018). The amended regulations also make expanded home caregivers like Sanchez eligible for experience waivers. See
Following these developments, the district court dismissed the plaintiffs’ complaint for lack of subject matter jurisdiction under
The district court first held that Homan, who is not subject to the regulations, failed to show the “injury in fact” required for standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Sorcher and Sanchez, however, are subject to the regulations and both explained that, at the time they filed suit, they would need to take immediate steps to comply. On that basis, the district court held that Sorcher and Sanchez made the requisite showing of injury. Sanchez I, 2019 WL 935330, at *4-5. We agree that Sorcher and Sanchez have standing, and OSSE does not dispute the point.
But the court also held that Sorcher‘s claims are not ripe, and that Sanchez‘s claims are either moot or also unripe. Id. at *6-9; Sanchez II, 2019 WL 2931285, at *4-6. Those determinations are the subject of this opinion.
II
1. We begin with the contention that Sorcher‘s claims are not ripe. OSSE relies on caselaw holding that the ripeness inquiry “requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat‘l Ass‘n of Home Builders v. U.S. Army Corps of Eng‘rs, 440 F.3d 459, 464 (D.C. Cir. 2006) (quoting Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 808 (2003)); see Stolt-Nielsen S.A. v. AnimalFeeds Int‘l Corp., 559 U.S. 662, 670 n.2 (2010). But cf. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (raising questions regarding “the continuing vitality of the prudential ripeness doctrine“). OSSE argues both that Sorcher‘s claims are not “fit” for review and that delay would impose little “hardship” on the plaintiffs. Those arguments are unconvincing.
OSSE maintains that Sorcher‘s due process and equal protection claims are not yet fit for review because their merits may depend on how generous OSSE is in granting hardship waivers. But see Int‘l Refugee Assistance Project v. Trump, 883 F.3d 233, 262-63 (4th Cir.) (en banc) (holding that a facial challenge to the constitutionality of an executive order was ripe, regardless of the availability of discretionary, case-by-case waivers), vacated on other grounds, 138 S. Ct. 2710 (2018) (mem.). OSSE does not dispute that Sorcher‘s nondelegation doctrine challenge is currently ripe, but argues that it should not be heard until the other two challenges ripen. In our view, those challenges are currently ripe as well.
“A purely legal claim in the context of a facial challenge . . . is presumptively reviewable,” Nat‘l Ass‘n of Home Builders, 440 F.3d at 464 (internal quotation marks omitted), and Sorcher‘s claims are purely legal. Her challenge is not to disparities in how hardship waivers are administered, but to the rationality of the education requirements -- both in-and-of themselves and as imposed upon different categories of caregivers. The hardship waiver provision is unrelated to those challenges. The waiver is granted only to childcare facilities, not to individual caregivers
OSSE also maintains that Sorcher will suffer only minor hardship from the court withholding consideration because the extended compliance deadline gives her time to apply for and obtain a hardship waiver.2 But as we have just set out, the regulations authorize hardship waivers only for facilities, not for individuals, and a grant depends on facts that may or may not exist at a particular time. The waiver must be renewed every three years, and so the hardship criteria must be satisfied not only at the time of the original grant, but also at the time of each renewal.
longer in the best interest of children it its care“).
In short, OSSE expects Sorcher to rest comfortably on the availability of a discretionary, time-limited and revocable waiver, based on criteria that her employing facility may or may not meet at any given time, and which in any event depends on the willingness of a facility to repeatedly reapply. That is cold comfort indeed. We therefore find quite plausible Sorcher‘s contention that, in the absence of a decision in her favor, she will have to begin expending time and money now in order to obtain the credentials the regulations prescribe. Am. Compl. ¶ 219. She cannot simply count on the continuing availability of a waiver to continue in her career. Indeed, Sorcher‘s complaint alleges that she is already spending hours identifying college programs that meet her scheduling needs and financial resources.
2. We next address the district court‘s holding that, because Sanchez has obtained an experience waiver, her claims are now moot. “[A] case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.‘” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v. Serv. Emps. Int‘l Union, Local 1000, 567 U.S. 298, 307-08 (2012)) (citations omitted). There is no dispute that the regulations’ education requirements continue to apply to Sanchez. See Sanchez I, 2019 WL 935330, at *7. Although she has obtained an experience waiver, OSSE acknowledges that the waiver is not permanent. Recording of Oral Arg. at 16:03. She must reapply for it every three years,
The district court also suggested that, even if Sanchez‘s claims are not moot, they are unripe. Again, we disagree.
As was true of Sorcher‘s claims, Sanchez‘s claims are purely legal and hence presumptively reviewable. See Nat‘l Ass‘n of Home Builders, 440 F.3d at 464. Sanchez alleges that the regulations’ education requirements are irrational. The fact that OSSE may -- in its discretion -- waive those requirements from time to time (either for experience or for hardship) will not affect resolution of those allegations.
And because Sanchez‘s waiver may be revoked or its renewal declined, she -- like Sorcher -- must take steps to obtain the required credentials now or risk the loss of her career. Indeed, Sanchez faces an even greater quandary than Sorcher, because the associate‘s degree she needs requires sixty credit hours of coursework, which she estimates would take her five years to complete. Am. Compl. ¶ 174. And, again like Sorcher, Sanchez alleges that she has already spent and continues to spend hours searching for college programs that meet her scheduling needs and financial resources -- not to mention the hours she spent applying for her current experience waiver.
3. Finally, we need not and do not reach the question of Homan‘s standing because her claims are the same as those of the other two plaintiffs, and there is no dispute that Sanchez and Sorcher have standing. See Ams. for Safe Access v. Drug Enf‘t Admin., 706 F.3d 438, 443 (D.C. Cir. 2013). We also decline the parties’ invitation to adjudicate the merits of the plaintiffs’ claims, which the district court did not address. Instead, we remand the case to permit the district court to address those claims in the first instance.
III
For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded for further proceedings.
So ordered.