DL, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. The DISTRICT OF COLUMBIA, et al., Defendants.
Civil No. 05-1437 (RCL)
United States District Court, District of Columbia.
Filed November 8, 2013
H.W., pro se.
Timothy Lantry, pro se.
Arlette Mankemi, pro se.
Kerianne Piester, pro se.
T.L., pro se.
Ronald Wisor, pro se.
X.Y., pro se.
Bryan Young, pro se.
Tammika Young, pro se.
Chad Wayne Copeland, Daniel Albert Rezneck, Matthew Robert Blecher, Robert C. Utiger, Samuel C. Kaplan, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
Royce C. Lamberth, United States District Judge
Pending before the Court are the plaintiffs’ Motion for Class Certification and Reinstatement of Findings of Liability and Order Granting Relief [358]; the plaintiffs’ Motion to Amend the First Amended Complaint [359]; and the defendants’ Motion to Dismiss for Lack of Jurisdiction [365]. 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.
BACKGROUND
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.”
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.
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 еvery 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
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.
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
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, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), which clarified the proper interpretation of the commonality requirement for class certification under
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] multi-
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, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Lest the exception swallow the rule,
- the class is so numerous that joinder of all members is impracticable [numerosity];
- there are questions of law or fact common to the class [commonality];
- the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and
- the representative parties will fairly and adequately protect the interests of the class [adequacy].
Once a class is certified,
B. The Proposed Subclasses
Plaintiffs propose certification of the following subclasses:
SUBCLASS 1: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and were not or will not be identified and/or located for the purposes of offering special education and related services;
SUBCLASS 2: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a timely initial evaluation for the purposes of offering special education and related services;
SUBCLASS 3: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a timely determination of eligibility for special education and related services; and
SUBCLASS 4: All children with disabilities, as defined by the IDEA, who lived in or will live in, or are or will be wards of, the District of Columbia, and who participated or will participate in early intervention programs under Part C of IDEA, and who participated or will participate in preschool programs under Part B, and who did not or will not have a “smooth and effective” transition from Part C to Part B by the child‘s third birthday.
C. Rule 23 Analysis
Certification of the proposed subclasses is proper only if this Court “is satis-
i. Numerosity
The first subclass includes all disabled children in the District who have not been and will not be identified as candidates for special education services under the IDEA. In just one year, 2008, the plaintiffs’ expert estimates that the District failed to identify at least 1,152 disabled children. Pls.‘s Class Cert. Mot., Ex. 3 (Tr. Transcript, Apr. 6, 2011), at 79-82; Pls.‘s Class Cert. Mot., Ex. 2 (Direct Testimony of Carl J. Dunst, Mar. 16, 2011), at 8. The second subclass, children who did not and will not receive initial evaluations within 120 days of referral, numbered at least 514 in 2010. Pls.‘s Class Cert. Mot., Ex. 4 (Early Stages Scorecard); Pls.‘s Class Cert. Mot., Ex. 5 (Direct Testimony of Dr. Leonard A. Cupingood, Mar. 15, 2011) [hereinafter Cupingood Testimony], table 6. Subclass three, children who did not and will not receive eligibility determinations within 120 days of referral, included at least 1,057 children in 2008 through 2010. Cupingood Testimony at 8, table 3. The final subclass, children who did not and will not receive a smooth and effective transition from Part C to Part B services, included 163 children in 2008. Dunst Rep. at 16.
In just the limited timefrаmes highlighted above, every subclass far exceeds the threshold number of 40. Moreover, pursuit of individual actions on behalf of the class members would be impracticable. Several of the relevant factors to impracticability—“financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members,” Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir.1993)—are present here.
The IDEA ensures a free and appropriate education to the District‘s youngest and most vulnerable pupils, many of whom are “indigent and unable to obtain legal services.” Pls.‘s Class Cert. Mot. at 20. This litigation is thus an example of the “[e]conomic reality ... that petitioner‘s suit [must] proceed as a class action or not at all.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Moreover, the class seeks prospective relief for future class members, whose identities are currently unknown and who are therefore impossible to join. See, e.g., Olson v. Brown, 284 F.R.D. 398, 408 (N.D.Ind.2012) (“[F]uture members make joinder inherently impracticable because there is no way to know who they will be” and “the inherently transitory nature of the class members makes their joinder in a single, non-class suit impossible, since only a portion of the class will have standing to bring their claims at any one time.“) And class litigation of these claims is an efficient use of judicial resources and provides a uniform redress of the plaintiffs’ common grievances. Accordingly, the Court finds the numerosity requirement of
ii. Commonality
Commonality—the “crux” of the Supreme Court‘s Wal-Mart decision and the
Applying these principles, the Circuit held that the class previously certified in this case lacked commonality because the “harms alleged to have been suffered by the plaintiffs here involve different policies and practices at different states of the District‘s Child Find and FAPE process” and were linked together only by violation of the same provision of law, the IDEA. DL, 713 F.3d at 127. As originally certified, then, the class was overbroad, based upon “multiple, disparate failures to comply with the District‘s child find obligations,” rather than a “common true or false question that can be answered for each of these ... different claims of harm.” Id. at 128. The Circuit explained
For some plaintiffs, for example, the alleged harm suffered is due to the failure of the District to have an effective intake and referral process; for others the alleged harm is caused by the District‘s failure to offer adequate and timely education placements to implement individual education plans (“IEPs“); for still others, the cause is the absence of a smooth and effective transition from early intervention programs to preschool programs.3
Subclasses divided according to specific IDEA violations solves the broadness problem; indeed, plaintiffs’ proposal directly tracks the specific harms identified by the Circuit.4 Each proposed subclass poses the
Two distinctions between the present claims and those in Wal-Mart further underscore the commonality in the proposed subclasses.
First, the Title VII claims at issue in Wal-Mart depended upon “the reason for [each] particular employment decision,” Wal-Mart, 131 S.Ct. at 2552, and the Court emphasized that each store manager was permitted to use “their own subjective criteria when selecting candidates,” id. at 2546. Absent a uniform policy of discrimination, the Court found it impossible to establish the same discriminatory bias among managers from over 3,000 stores throughout the entire country. By contrast, resolution of the present claims turns on objective, statutorily-defined obligations that lack the amorphous quality of Title VII decisions. The plaintiffs do not seek to litigate the merits of individual, fact-specific IDEA claims—whether a particular IEP was sufficient, for instance—but whether the District generally met its statutory obligations to disabled children under the IDEA. Where there is a statutory obligation to act, there is a significant difference between challenging the inadequacy or complete failure to enact policies and procedures and alleging an erroneous application of a policy to individuals. For this reason, even after Wal-Mart, courts have properly certified classes challenging uniform practices of failure or inaction. See, e.g., Parsons v. Ryan, 289 F.R.D. 513, 521 (D.Ariz.2013) (finding commonality in class of state inmates alleging deliberate indifference to medical needs “where all inmates are subjected to Defendant‘s actions or lack thereof, because they have the sole responsibility for health care policy“); Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 290 F.R.D. 409 (S.D.N.Y.2012) (finding commonality for a class challenging a “City-wide policy and [the city‘s] alleged failure to take into account the needs of disabled citizens” despite the fact “the class members have diverse disabilities and will not all be affected by the alleged omissions in ... the same way“).
Second, the fact that the development and administration of the District‘s IDEA procedures are centralized in two closely-related agencies—District of Columbia Public Schools (“DCPS“) and the Office of the State Superintendent of Education (“OSSE“)—distinguishes this case from Wal-Mart. A critical reason why the absence of a general policy was fatal to commonality in Wal-Mart is that the plaintiff class sought to challenge “literally millions of employment decisions” made by the indepеndent managers of more than 3,000 stores. Wal-Mart, 131 S.Ct. at 2552. The Court indicated that some part of the class could successfully demonstrate commonality if there were common claims of “discriminatory bias on the part of the same supervisor.” Id. at 2551. This case is analogous to that scenario: disabled children in the District are subject to failures and inadequacies caused by the same agency. The OSSE has final responsibility for developing and ensuring compliance with the District‘s IDEA policies, which are implemented by DCPS. In 2009, and as a direct result of this litigation, the OSSE and DCPS reorganized the District‘s Early Stages Center. DL, 845 F.Supp.2d at 15. The Center, directed by Dr. Nathaniel Beers, oversees the vast majority of screenings, evaluations, and eligibility determinations, and controls 95% of all transitions from Part C to Part B. Pls.‘s
Thus, because each subclass presents a common contention that can be resolved with “one stroke,” and given the factual distinctions from Wal-Mart, this Court finds the commonality requirement satisfied.
iii. Typicality
The third prerequisite for class certification—typicality—shifts the focus from the characteristics of the class to the preferred qualities of the class representatives. Typicality requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”
As to the first subclass, named plaintiffs D.L. and J.B. allege that, despite being explicitly informed of their disabilities, the District failed to identify them as potential candidates for special education services. Sec. Am. Comp. ¶¶ 7-15, 41-42.5 For example, the District received notice of D.L.‘s “significant behavioral and emotional problems” in June 2004, but did not identify D.L. as an IDEA candidate until more than a year later in August 2005. Id. ¶¶ 6, 9, 15. The claims of named plaintiffs T.F. and H.W. are typical of the second subclass as both allege that they did not receive initial еvaluations within 120 days of referral as required by the IDEA and D.C. law. Id. ¶¶ 65-73, 27-30. T.F., for instance, alleges that despite a referral for an evaluation in September 2003, the District failed to evaluate him until July 2005. Id. ¶¶ 66, 73. The claims of the third subclass are typified by the claims of named plaintiffs D.L., H.W., J.B., and T.F., who all allege that the District failed to provide timely eligibility determinations. Id. ¶¶ 14-15, 29-30, 45-50, 74. Finally, named plaintiffs X.Y. and T.L. both allege that the District failed to provide a smooth and effective transition from Part C to Part B services. Id. ¶¶ 23-24, 34-38. In X.Y.‘s case, the District properly convened a transition meeting when X.Y. was two years, eight months old, but failed to ensure that he was transitioned to the Part B program, causing a one-year disruption of services after X.Y.‘s third birthday. Id. ¶¶ 23-25.
For each subclass, there is a sufficient nexus between the claims of the named plaintiffs and the claims of the class. The Court therefore finds the typicality requirement satisfied.
iv. Adequacy
The final prerequisite to class certification, adequacy, requires a finding that “the representative parties will fairly and adequately protect the interests of the class.”
In support of its position, the District relies on a case from the Seventh Circuit,
By contrast, the named plaintiffs and class counsel in the present case have displayed a strong commitment to resolving this сase, responding to all developments in a timely and professional fashion. The named plaintiffs in this case simply do not display the “total lack of interest and unfamiliarity with the suit” that is typically required to reject class certification for lack of adequate representation. Harris v. Koenig, 271 F.R.D. 383, 391 (D.D.C.2010) (internal quotations omitted). The Court therefore finds that
The District also argues that class counsel is inadequate under
v. Rule 23(b)(2)
Relying on the Seventh Circuit‘s opinion in Jamie S., the District argues that injunctive relief such as that previously imposed by this Court “merely establishes a system for eventually providing individualized relief.” Def.‘s Opp‘n to Pls.‘s Mot. for Class. Cert. & Reinstatement of Findings of Liability and Order Granting Relief, ECF No. 370, at 27 [hereinafter Def.‘s Opp‘n] (quoting Jamie S., 668 F.3d at 499). The District‘s argument—and its reliance on Jamie S.—is incorrect. The district court‘s injunctive remedy in Jamie S. established a “hybrid IEP team” of “individuals from diverse professional backgrounds” to evаluate each class member to determine whether there was a denial of FAPE, and if so, to determine whether compensatory services were appropriate. Jamie S. v. Milwaukee Pub. Sch., No. 01-C-928, 2009 WL 1615520, at *28-*35 (E.D. Wis. June 9, 2009) vacated, 668 F.3d 481 (7th Cir.2012). The district court‘s acknowledgement that the type and scope of compensatory services would be determined based upon the “unique needs and circumstances of [each] class member” id. at *33, was fundamentally incompatible with
By contrast, each of the subclasses in the present case seeks declaratory and injunctive relief that will apply equally to all class members. This is unlike the Jamie S. injunction, which required “thousands of individual determinations of class membership, liability, and appropriate remedies.” Jamie S., 668 F.3d at 499. The aim of the subclasses here—to rectify the District‘s systemic failure to comply four specific statutory duties to all class members—fits the prototype of the (b)(2) class, which is the “most frequent[] vehicle for civil rights actions and other institutional reform cases that receive class action treatment.” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58-59 (3d Cir.1994). The Court therefore finds
vi. Definiteness
The District asserts that class certification should be denied because the proposed subclasses are fatally indefinite. Definiteness is not mandated by
Because the rationale for precise ascertainability is inapposite in the
The other component of definiteness, an adequately defined class, “is designed primarily to help the trial court manage the class” by avoiding amorphous or subjective class definitions that make it “impossible to determine who is or is not a member of the class.” Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C.1998). On this point, the District argues that the subclass definitions are “administratively burdensome” because the definitions “depend on subjective criteria and require extensive factual inquiry to determine class membership.” Def.‘s Opp‘n at 31. Although the definitions may appear amorphous at first glance, each has an objective and readily discernible meaning. For example, the second and third subclasses consist of children who did not receive “timely” evaluations or eligibility determinations. But timeliness does not, as the District argues, require “an individualized inquiry into the facts of that particular child‘s case.” Def.‘s Opp‘n at 31. Rather, it is defined by statute—any evaluation or eligibility determina-
Every class definition is sufficiently objective for determination of whether a particular individual is a member of the class. The Court therefore finds that the subclasses are sufficiently definite.
D. Certified Subclasses
Having found all requirements of
SUBCLASS 1: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and were not or will not be identified and/or located for the purposes of offering special education and related services.
REPRESENTATIVES: Subclass 1 shall be represented by named plaintiffs D.L. and J.B.
SUBCLASS 2: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive an initial evaluation within 120 days of the date of referral for the purposes of offering special education and related services.
REPRESENTATIVES: Subclass 2 shall be reрresented by named plaintiffs T.F. and H.W.
SUBCLASS 3: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a determination of eligibility within 120 days of the date of referral for special education and related services.
REPRESENTATIVES: Subclass 3 shall be represented by named plaintiffs D.L., H.W., and T.F.
SUBCLASS 4: All children with disabilities, as defined by the IDEA, who lived in or will live in, or are or will be wards of, the District of Columbia, and who participated or will participate in early intervention programs under Part C of IDEA, and who participated or will participate in preschool programs under Part B, and who did not or will not have a “smooth and effective” transition from Part C to Part B by the child‘s third birthday. A transition shall be considered “smooth and effective” if (1) the transition begins no less than 90 days prior to the child‘s third birthday; (2) the child is provided with an IEP listing both the type of placement and a specific location for services by the child‘s third birthday; (3) there is no disruption in services between Part C and Part B services; and (4) Part B personnel are involved in the transition process.
REPRESENTATIVES: Subclass 4 shall be represented by named plaintiffs X.Y. and T.L.
E. Reinstatement of Liability & Injunctive Relief
The plaintiffs move this Cоurt to reinstate its findings of liability and remedial orders. But the Circuit expressly vacated “the class certification order, and consequently the liability and remedial orders,” and remanded for redetermination of liability and appropriate relief. DL, 713 F.3d at 121 (emphasis added). Reinstatement of the prior liability and remedial orders would therefore be plainly inappropriate. Accordingly, the plaintiffs’ motion to reinstate liability is denied.
Arguing from the opposite end of the spectrum, the District asserts that it faces no liability at all because “this is not the case it was prior to appeal” and its IDEA compliance has markedly improved. Def.‘s Opp‘n at 4. But although the Court applauds the District‘s steps towards fulfilling its obligations to its disabled child residents, “[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of
As neither extreme presented by the plaintiffs or the District is proper, the Court will impose a solution somewhere in the middle. The Court has made findings of fact regarding the District‘s IDEA performance through April 2011, but it is clear that much has changed since that time. As such, the Court will, as specified in a separate order issued this date, commence proceedings to make findings of fact on the District‘s IDEA compliance with respect to each subclass since April 2011. The Court will then, as instructed by the Circuit, redetermine liability and the appropriate remedy.
II. MOTION TO DISMISS
The Court now turns to the District‘s motion to dismiss the plaintiffs’ claims for lack of subject matter jurisdiction pursuant to
A. Standing & Mootness
Because the named plaintiffs are now between ten and fifteen years old and will therefore never again be subject to the District‘s inadequate Child Find procedures, the District argues that the plaintiffs lack and standing and that their claims are moot. Def.‘s Mot. to Dismiss, ECF No. 365, at 4-5. As a threshold matter, the District‘s argumеnt misapprehends the distinction between standing and mootness. Standing—the requirement that plaintiffs have suffered a concrete injury caused by the defendant and capable of judicial redress—is “assessed as of the time a suit commences.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 324 (D.C.Cir.2009). So long as the named plaintiffs met this requirement at the time that the initial complaint was filed, Article III standing is satisfied. Events subsequent to the filing of the complaint may moot the plaintiffs’ claims, but the plaintiffs do not lose standing. As explained by the Supreme Court, “the doctrine of mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotations omitted).
This Court has previously found, and the District does not dispute, that the named plaintiffs had standing at the time the complaint was filed in 2005. The plaintiffs thus still have standing to litigate their claims.
By contrast, the mootness doctrine requires a live controversy “at all stages of review, not merely at the time the complaint is filed.” Alvarez v. Smith, 558 U.S. 87, 92, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) (internal quotations omitted). But this doctrine “is riddled with exceptions.” U.S. Parole Comm‘n v. Geraghty, 445 U.S. 388, 404 n.11, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). In Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), for example, the Supreme Court held that a class action “does not inexorаbly become moot by the intervening resolution of the controversy as to the named plaintiffs.” The named plaintiff in Sosna challenged the constitutionality of a one-year durational residency re-
The Court limited the Sosna holding to cases where the named plaintiff has a live case or controversy at the time the complaint is filed and at the time the district court certifies the class. Id. at 402. The named plaintiffs in this case had live claims at the time the complaint was filed and at the time of initial class certification; however, that initial certification was vacated by the Circuit. Legally, therefore, no class currently exists, and the District argues that the plaintiffs cannot satisfy Sosna because their individual claims were mooted prior to certification of the class. But the Court in Sosna wisely predicted that
There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.
Id. at 402 n.11; see also Basel v. Knebel, 551 F.2d 395, 397 n.1 (D.C.Cir.1977) (noting that under Sosna, there are “some circumstances a class action should not be deemed moot even if the named plaintiff‘s claim becomes moot prior to certification of the class.“).
The lengthy and peculiar circumstances of the present case warrant relation back of the subclass certification. This litigation has meandered since 2005. At the time this Court initially certified the class, the named plaintiffs had live and ongoing controversies. It is undisputed that members of every subclass continue to have live IDEA claims notwithstanding the status of the named plaintiffs’ claims. Moreover, the decertification of the larger class and subsequent certification of subclasses arе not due to any undue delay by the plaintiffs. Rather, the gap in class certification occurred because “Wal-Mart‘s interpretation of
Relation back is also warranted because IDEA claims are inherently transitory. The inherently transitory exception to mootness permits relation back in “any situation where composition of the claimant population is fluid, but the population as a whole retains a continuing live claim.” 1 Newberg § 2:13. In a case challenging the failure of a state to provide probable cause hearings to arrestees, the Supreme Court explained:
Our cases leave no doubt, however, that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative‘s individual interest expires.
Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). IDEA litigation, specifically litigation involving the Child Find obligations that only apply to childrеn aged three to five, is undoubtedly transitory. The Supreme Court has recognized the “ponderous” nature of IDEA claims, Sch. Comm. of Town of Burlington, Mass. v. Dep‘t of Educ. of Mass., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), which is demonstrated by the eight-year life of this case. This lengthy review process, coupled with natural age progression, means that the composition of the class may change constantly, but there is no doubt that “the population as a whole retains a continuing live claim.” Newberg § 2:13; see, e.g., M.A. ex rel. E.S. v. Newark Pub. Sch., No. CIV.A. 01-3389SRCQ, 2009 WL 4799291, at *10 (D.N.J. Dec. 7, 2009) (“IDEA claims are without question inherently transitory. In other words, an IDEA plaintiff‘s interest in rectifying the wrong complained of in the complaint—for example, the deprivation of a FAPE in a particular school year—often lapses by mere passage of time. Defendants’ provision of an evaluation, eligibility determination and IEP to a named Plaintiff post-filing of the complaint, or alternatively, their inability to do so because a named Plaintiff has graduated or aged out of the school system should not extinguish the class claims or render those Plaintiffs inadequate class representatives.“).
Accordingly, the Court finds that the subclass claims are not moot.
B. Exhaustion
Save one, all of the named plaintiffs have exhausted the administrative remedies available under the IDEA. The District argues that because one plaintiff, T.L., did not exhaust administrative remedies, the entire complaint must be dismissed for lack of jurisdiction. The Court disagrees.
Generally, “[a] court has no subject matter jurisdiction over an IDEA claim that has not first been pursued through administrative channels.” Massey v. District of Columbia, 400 F.Supp.2d 66, 70 (D.D.C.2005); cf. Cox v. Jenkins, 878 F.2d 414, 422 (D.C.Cir.1989) (holding that where plaintiffs failed to exhaust remedies under the Education of Handicapped Act, the predecessor to the IDEA, “the District Court had no authority to hear their suit.“). In Honig v. Doe, however, the Supreme Court held that under the IDEA, “parents may bypass the administrative process where exhaustion would be futile or inadequate.” 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). And the District has presented no reason for this Court to reconsider its prior opinion excusing exhaustion because it would futile in this case. DL v. District of Columbia, 450 F.Supp.2d 11, 18-19 (D.D.C.2006). Likewise, nothing in the District‘s motion defeats this Court‘s prior finding that “even if exhaustion of administrative remedies is required, plaintiffs have satisfied this requirement” given the Circuit‘s holding that “only one named plaintiff is required to exhaust his or her administrative remedies in civil rights class actions.” DL, 450 F.Supp.2d at 17; Hartman v. Duffey, 88 F.3d 1232, 1235 (D.C.Cir.1996) (holding “[t]he district court applied this court‘s doctrine of vicarious exhaustion—that exhaustion of administrative remedies by one member of the class satisfies the requirement fоr all others with sufficiently similar grievances ....“); see also, e.g., Foster v. Gueory, 655 F.2d 1319, 1321-1322 (D.C.Cir.1981) (noting that “each individual plaintiff in a Title VII class action suit need not individually file an EEOC complaint, but it is sufficient if at least one member of the plaintiff class has met the filing prerequisite.“); Association for Community Living v. Romer, 992 F.2d 1040, 1045 (10th Cir.1993) (“[W]e do not hold that every plaintiff in a class action must exhaust the IDEA‘s administrative remedies. There may be cases where the purposes of the exhaustion doctrine would not be furthered by having even one plaintiff exhaust the IDEA‘s administrative remedies. Even where exhaustion is necessary, the exhaustion of a few representative claims may be sufficient“).
Accordingly, the Court denies the District‘s motion for the reasons stated in its prior opinion; namely, that exhaustion would be futile, and alternatively, that each subclass has satisfied the exhaustion requirement because all other named plaintiffs have exhausted their remedies.
III. MOTION TO AMEND COMPLAINT
In the absence of any apparent or declared reason—such 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, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir. 1996) (“Rule 15(a)‘s liberal standard for granting leave to amend governs once the court has vacated the judgment.“).
The plaintiffs here have not exhibited any “undue delay, bad faith or dilatory motive ... [or] repeated failure to cure deficiencies by amendments previously allowed,” but the District argues that it would be severely prejudiced should this Court permit amendment of the complaint. Specifically, the District argues that it would have employed a different litigation strategy, deposed and cross examined witnesses differently, and sought additional notiсe and discovery as to each subclass. The Court finds this argument unconvincing as each of the claims asserted by the subclasses was part of the initial complaint. Since the inception of this case, the plaintiffs have alleged that the District failed to meet its statutory obligations to (1) identify disabled children; (2) timely evaluate identified children; (3) make timely eligibility determinations; and (4) provide smooth and effective transitions from Part C to Part B services. The District therefore conducted discovery, deposed and cross examined witnesses, and made motions to this Court knowing that these four claims were the subject of this case.
Moreover, it would be nonsensical to deny leave to amend the complaint to reflect the newly-certified subclasses given that (1) irrespective of any amendment to the complaint, this Court has always had the power to certify subclasses under
CONCLUSION
For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART the plaintiffs’ Motion for Class Certification and Reinstatement of Findings оf 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.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Royce C. Lamberth
United States District Judge
Civil Action No. 99–125(JMF)
United States District Court, District of Columbia.
Signed August 22, 2014
Notes
Jamie S., 668 F.3d at 498.To illustrate the commonality problem in the certified class, consider two hypothetical students within the class: one has a disability and would be eligible for special education but has never been identified as being disabled nor gone through the IEP process; another was identified as disabled and received a timely IEP meeting, but the child‘s parents did not attend the IEP meeting and were not notified of their right to do so. Both scenarios involve violations of the IDEA, but what common question can be answered that would assist the court in determining MPS‘s liability for each? On the plaintiffs’ theory, that question is something like this: Did MPS fulfill its IDEA obligations to each child? But while that generic question is surely a part of both children‘s claims, it must be answered separately for each child based on individualized questions of fact and law, and the answers are unique to each child‘s particular situation.