*1 al., DL, Appellees et COLUMBIA, A OF
DISTRICT Corporation,
Municipal et
al., Appellants. 11-7153, 12-7042.
Nos. Appeals,
United States Circuit.
District of Columbia 10,
Argued Jan. 12, 2013. April
Decided
*2
Kim,
General,
(2011),
Todd S.
Solicitor
Office of
appellees. him With on the brief were I. Gutman, Mehri,
Jeffrey Cyrus S. Jane M. Liu, Margaret and A. Kohn. provides The IDEA federal funds to as sist States agencies and local
Kelly Kohrman, educating Bagby, Daniel Michael children with Shuster, disabilities Burnim, “and conditions Joseph Ira A. B. Espo, such funding upon a Krevor-Weisbaum, compliance State’s and Sharon were on goals with extensive AARP, procedures.” Ar the brief for amici curiae et al. in lington Cent. Sch. Dist. Bd. Educ. v. support appellees. of of Murphy, 548 U.S. 126 S.Ct. GARLAND, Before: Judge, Chief (quoting ROGERS, EDWARDS, Judge, Circuit Board Ed. Hendrick Hudson Cent. Judge. Senior Circuit Dist., Cty. Sch. Westchester Rowley, 176, 179, 102 S.Ct. 73 L.Ed.2d Opinion for the Judge Circuit (1982)). A “State” is defined to in ROGERS. clude the District of Columbia. 20 U.S.C. 1401(31). § primary One of the purposes Concurring opinion by Judge Senior is to “ensure that all children EDWARDS. with disabilities have available to them a ROGERS, Judge: Circuit appropriate public free education.” See id. 1400(d)(1)(A); The District of appeals § Columbia Alegria v. Dist. Colum injunction bia, (D.C.Cir.2004). the structural entered district court in this challeng class action receipt conditions the of federal ing policies funding being Dis on there “in effect system trict’s “Child Find” under the procedures Indi ensure” all children with viduals Disabilities Education Act residing ages therein between the of 3 and (“IDEA”), § 20 U.S.C. 1400 et It seq. have access to a “free appropriate pub (“FAPE”). principally contends that the class certifi lic education” See 20 U.S.C. 1412(a)(1)(A). pursuant § cation to Federal Rule of Civil A principal means of ful 23(a)(2) improper Procedure was filling obligation as a mat this is to establish a law, ter of and that the district program court “Child Find” under which chil relief, lacked discretion to award dren with special disabilities need of impermissibly identified, or at least acted located, the ab education “are and eval explanation sence of an bridged of how it a practical developed uated and method is gap between implemented individual relief and the to determine which chil systemic relief ordered. In currently view dren with disabilities are receiv Stores, clarification Wal-Mart ing Inc. v. special needed education and related Dukes, - U.S. -, 2541, 2551, 1412(a)(3)(A). services.” Id. This in- July plaintiffs, named on participat- six ensuring “[c]hildren
eludes
...,
programs
similarly
others
early
intervention
behalf of themselves and
preschool pro-
situated,
participate
will
sued the District of Columbia
and who
and effec-
smooth
grams
experience
government
Superintendent
and the D.C.
*3
”
1412(a)(9).
§Id.
(hereinafter,
tive transition....
of Public
“the Dis-
Schools
trict”),
§
42
pursuant
to
U.S.C.
1983.
“[cjhildren
with
provides
The
They identified themselves in terms of
parents
their
are afforded
and
disabilities
experiences
stages
their own
at various
safeguards required by sec-
procedural
the
FAPE process,
the IDEA Child Find and
1412(a)(6).
§
this title.” Id.
1415 of
tion
¶¶ 5-76,
Compl.
alleged
see Am.
and
that there shall be
provides
Section 1415
policy,
amount to a
“actions
any party
present
to
for
opportunity
“an
pattern, practice or custom that violates
any
to
matter
respect
with
complaint
(A)—
federal law and shows deliberate indiffer-
identification, evaluation, or
relating to the
¶
rights,”
ence to
federal
id. 109.
child,
or the
placement
educational
they alleged that the
Specifically,
District’s
of a
to such child.” Id.
provision
[FAPE]
sys-
policies
and
had resulted
1415(b)(6)(A).
exhausting
§
admin-
Upon
locate, evaluate,
identify,
temic failures to
remedies, “any party aggrieved
istrative
and
special
offer
education and related
decision made ...
findings
and
children,
preschool-age
services to disabled
bring
to
a civil action
right
shall have the
IDEA,
in violation of the
20 U.S.C.
complaint presented.”
to the
respect
with
1412(a),
Act,1
§
§
504 of the Rehabilitation
1415(i)(2)(A). A
§
court—after evalu-
Id.
and District of
regula-
federal
Columbia
ating the “records of
administrative
IDEA,2
implementing
tions
and the
“hearing additional evidence
proceedings,”
Fifth
Due Process Clause of the
Amend-
request
party,”
“basing
of a
and
its
ment
to the U.S. Constitution. Am.
preponderance
decision on the
of the evi-
¶¶ 1,
relief,
Compl.
109. As
request-
grant
dence”—“shall
such relief as the
specified
pursu-
ed certification of a
appropriate.”
court determines
is
23(b)(2)
1415(i)(2)(C).
ant to Rule
of the Federal Rules
Secretary
§
of Edu-
Procedure;
declaratory judg-
of Civil
annually
performance
cation
reviews
ment
the District had violated federal
of a
on the
set forth
plan
State
conditions
law,
and District of
including
§in
1412
or
Columbia
and
withhold
recover
IDEA,
locate,
identify,
failing
evalu-
upon finding poor performance
funds
FAPE
obligations.
generally
eligible
id.
ate and offer a
children
See
§
and
ensure
smooth and effective tran-
cited,
pro-
example,
1. Section 504 of the Rehabilitation Act
2. Plaintiffs
for
34 C.F.R.
qualified
vides that
otherwise
individual
"[n]o
§§ 104.32-104.39
well as
5-E D.C.M.R.
shall,
disability
solely by
with a
reason of
3002.1(a)
§
(requiring the District to "make a
disability,
her or his
be excluded from the
available to each child'with a disabili-
[FAPE]
in,
of,
participation
be denied the benefits
in,
ty, ages
twenty-two,
three to
who resides
subjected
any pro-
under
discrimination
of,
District”)
3002.1(d)
§
or is a ward
gram
activity receiving
Federal
financial
(requiring
proce-
to "ensure that
District
794(a);
§
assistance.”
see Alexan-
U.S.C.
implemented”
comply
dures are
with the
Choate,
der v.
program "regardless
"Child Find”
of the na-
(1985);
when
were between three and five
jured by
the same alleged
pattern
old, inclusive,”
years
provide
and to
reim-
of IDEA violations that allegedly injured
privately expended
bursement of
funds for
members,
the other class
and that
the
services,
appointment
these
as well as the
plaintiffs’
named
injury
typical of the
[was]
special
of a
master.
Id. at 35.
injuries.”
other class members’
Id. The
August
In
the district court certi-
had,
plaintiffs
the court explained, “pointed
specified
pursuant
fied the
class
to Rule
which,
to
if proven, constitute a
23(a)
23(b)(2).3
and
D.L.
See
v. Dist. of pervasive pattern
failing
and
of
to
Columbia,
(D.D.C.2006).
127
(10th Cir.2013);
1206,
employer operated
general
M.D. ex rel.
under a
1228
832,
F.3d
839 of discrimination ...
if the
Stukenberg
Perry,
v.
675
discrimination
(5th Cir.2012);
hiring
manifested itself in
McReynolds
promotion
v. Merrill
”
Smith, Inc.,
Pierce,
practices
general fashion,’
in the
Fenner &
same
id.
Lynch,
—
(7th
denied,
Falcon,
Cir.),
at 2553 (quoting
cert.
The circuit of appeals courts to address have been suffered here question faithfully have hewed to Wal- involve different requirement. stages Mart’s “one stroke” For different of the District’s Child example, McReynolds, process; Seventh Cir- Find and FAPE the district court interlocutory appeal single cuit held on identified no or uniform African all putative employ- practice bridges class of American their claims. lawsuit, alleged employer’s ees who that their com- faced with a similar IDEA When *8 S., pany-wide “teaming” and “account in distri- Seventh Circuit Jamie 668 F.3d impact effectively rejected, bution” had a at in of a practices disparate view class, company, broadly on their within the attempt advancement defined dis in tinguish interpretation violation of Title VII and U.S.C. Wal-Mart’s 23(a) by commonality was “not forbidden the Wal- Rule the context of a pattern practice Mart decision.” 672 at 490. In and claim. do not F.3d Wal- We Supreme acknowledged suggest widespread policies prac Mart and “ cases,’ ‘in appropriate giving discre- tices violation of the could never 23(a)(2)’s supervisors satisfy commonality tion to lower-level can be the Rule re Wal-Mart, S., liability quirement a dispa- basis Title VII under after see Jamie (ci- (Rovner, J., theory,” concurring at 2554 at 503-05 rate-impact omitted), commonality dissenting part), but rather part tation where could in “ that, interpretation by ‘[significant proof be satisfied that an view Wal-Mart’s 23(a)(2) single injunction a commonality and the when or declarato- of Rule class, Jamie S. broadly ry judgment provide certified as would relief to each id. appear class,” claims to be based member of the “[t]he the Rule multiple, disparate comply failures to on granting does not bar further courts statutory child with the find [District’s] equitable every relief that does not reach truly systemic obligations rather than Walr- plaintiff in the But given case. all,” policy practice or which affects them 23(a) com- Mart’s interpretation of Rule id. at 504-05. For for plaintiffs, some monality, requested re- relief must harm example, alleged suffered is due spond, at least in to a harm part, common to the failure of the District to have an a policy suffered as result of effective intake and referral for process; that affects each class member. alleged harm others is caused plaintiffs appeared recognize adequate District’s failure to offer problem currently with the certified class timely placements implement education when, issued, Wal-Mart after was (“IEPs”); plans individual education consisting moved to add four subclasses others, the cause of a still is absence (1) children whom the District failed to: early smooth effective transition from (2) services; identify or locate for provide programs preschool pro- intervention evaluation; timely provide with initial grams. Although the district court found determination; timely eligibility with a that all members of the class are harmed (4) provide with a “smooth and effective” as a result of the deficiencies due transition from Part C to Part B. See to the District’s failure to establish the Plaintiffs’ in Support Mem. of Law required program Child Find and FAPE Their Mot. for Class Re-Certification. policies, what common effect, suggesting were question can an- “tru[e] fals[e]” they could show toas each subclass that swered for each of these three different the harm caused the District’s failures claims of harm that would assist the dis- stemmed from a or practice that determining trict court would requested basis for the Wal-Mart in- group? as to each injunctive declaratory relief. The dis- holding structs that that the District has trict court never question. reached this violated the IDEA as to each class mem- Nor do we. circuit suggested, One has enough ber is not establish however, that the district certifica- court’s commonality, 131 S.Ct. at in the ab- might tion of subclasses resolve the Rule sence of a uniform or practice that M.D., 23(a)(2) problem. See 675 F.3d at affects all class members. Giuliani, A. Marisol (citing Again, suggest none of this is to (2d Cir.1997) F.3d (stating that class can never be certified in this kind of possible method of developing prop- “[o]ne 23(a)(2) require case. Rule not does present er subclasses would divide the all questions be common to the class. commonality class based on the Rather, noted, the Supreme Court ac- circumstances, particular children’s *9 knowledged single that “‘even a common type of harm the allegedly children have do,” (internal id. at 2556 question’ will suffered, particular systemic and the fail- omitted), citation and long brackets as plaintiffs ures which the assert have oc- its determination “will resolve an issue curred”)). that validity is central to the of each one of stroke,” id. the claims in one Although they disagree with the Dis- 23(b)(2) Likewise, although “applies interpretation commonality trict’s EDWARDS, that urged Judge, have Senior Circuit requirement, Wal-Mart, “if,” “this Court finds in view of concurring: commonality, re- that class lacks pleased I am to concur in the opinion for to the district court to reconsider mand the court and do so without caveat. I appropriate.” Appel- would subclasses separately merely amplify write to some “agrees The District that lees’ Br. at 46. points of concern. plaintiffs] opportuni- should have this [the that this need not consider ty, and court, During argument oral before this they proposed,” although it the subclasses counsel for the District of Columbia made they comply with Wal- [that even] “doubts astonishing argument that Wal-Mart agree Br. at 25. We Reply Mart.” would bar a class action disabled chil- appropriate remand is so the district court challenge dren who seek to city clear subclasses would can determine whether processing that forecloses the of all requirements meet the of Rule com- IDEA exchange claims. Here is the be- monality after understand Wal-Mart. We tween the counsel the District and the the District to take no issue with dis- court: IDEA ruling trict court’s that the is ame- Arg. nable to class actions. See Oral Jan. Judge: say I that I am have confused 2013 Tr. at 59. The District has way you about the argued have this appears on how to have
focused Wal-Mart So, part.... imagine that we solve the require injunc- that changed the law one problem. says Rule 23 The statute tion address the common harms identified policies the state has to have in effect subclass, by all the children the class or procedures to ensure the state and on the fact that the district court did following meets the conditions and the any particular policy not find there was care; state announces: “We don’t that linked all claims but practice we’re not it. going do We have no there were deficiencies. The Dis- policy, nothing in effect at all. And challenge trict’s to the certified class thus therefore, no child our district will out possibility does not rule classes designed or subclasses that are around a get appropriate ever a FAPE [free links the class as public And there is a education].” whole; separate neither would it rule out brought by class action all children classes in a consolidated case. See id. at get who are disabled and have tried to 25, 28. get a FAPE and can’t one because
Accordingly, certify- we vacate the order city] policy. you Do have [the ha[s] and, ing consequently, the class the orders any brought doubt this could be liability finding ordering relief all, that this ... first satisfies Wal- class. We remand the case to the district Mart, that a re- you have no doubt court for reconsideration of whether a injunction ordering the quest for an class, classes, or subclasses be certi- adopt state to follow the fied, so, and if thereafter to redetermine procedures —without appropriate relief. Because specifying even what are—would seeks, this is the relief that the District see problem? that be a Wal-Mart 58; Appellant’s Reply Br. at Br. at problem It under Counsel: would be we need not reach the district court’s rul- in the context of Act, Wal-Mart' scope on the of the Rehabilitation *10 why ... reason the Dis- Arg. see Oral Jan. 2013 Tr. at 24-26. because any particular rights being trict child is not a claim that their are vio- failed any ... part of individual lated?
Judge: But it affects every child [*] [*] [*] just Every I example gave. Right? really I think Counsel: do there is a single city] child because is not [the perhaps disconnect between So, having any FAPE. it is not the understanding court’s of Wal-Mart they every reason failed child. again just and mine. But court There additional de- [is] individualized needn’t reach the issue.... made, cisionmaking that has to be but Judge: You have now forced us to reach every here is one that affects issue, which is unfortunate for the You a that child. have doubt Wal- District of Columbia. You have injunction? permits Mart that kind of forced us to reach the Be- issue.... your I Counsel: do honor.... you we going cause know are to make argument the District [to Court] 1,000 say that it if Judge: possible Let’s there is a class of is not there is —even a single policy every children all of whom are disabled and that will affect get any single none whom can benefits member of the class [and] by single the District at all because which can be solved a in- junction are ... at a “stopped by the door” Wal-Mart doesn’t —... [city] says that. going permit express- rule “we are not And Wal-Mart give you any Why ly permit benefits all.” does that.... isn’t “common fact” issue solva- Arg. Oral at 1:16:05-22:58. by single injunction? ble a argument raised the District is
[*] [*] [*] astonishing because it is patently wrong. surely Wal-Mart does not foreclose a class Counsel: Wal-Mart said that there challenge city policy action to that effec up has to be an or down resolution tively precludes protected parties from a common contention and the resolu- being even for benefits that considered tion of that common contention has would otherwise be available. And all validity be central to the of each one similarly claimants who are blocked you of the claims. If break down the policy may join challenge class action to you class that are in- proposing, each it. action easily satisfy Such class would dividual say something there would commonality requirement of Rule 23 like “I was not found ...” See, even after e.g., McRey- Wal-Mart. No, no, Judge: no. Each individual Pierce, Lynch, nolds v. Merrill Fenner & say would I get cannot in the (7th Smith, Inc., door.... Cir.2012) (explaining that Wal-Mart al Judge: my example You heard lows a class challenge specific, action to [city’s] policy. is: “we are not [It] companywide policies that “exacerbate ra going to follow IDEA at all.” That’s by brokers”), cial discrimination de cert. what it said. isn’t it the Now case —nied, —, every who individual is disabled (2012). L.Ed.2d 157 has claim that the District follow if going-in point highly District’s This is relevant with re- going is “we are not to follow spect to the matters that must be resolved it,” everyone has a common It important [then] on remand. is therefore
131 tiffs”). principle The that it will same has been fol- understand the District Court in which if lowed even those cases class a class or subclass it certify be free See, e.g., certification has been denied. single policy practice or that a determines Countrywide Corp. Mortg. re Fin. Lend- disabled children effectively forecloses (6th Litig., Practices 708 F.3d pursuing from that class or subclass Cir.2013) (“Essential McReynolds, noted Judge id. As Rovner benefits. See missing litigation, from the instant were Public Schools: in Jamie S. v. Milwaukee policies that companywide contributed to inherently [Notwithstanding the child alleged disparate impact that arose inquiries, nature of child-find a specific delegation from the of discretion to indi- truly systemic a class action based on Hilti, Inc., brokers.”); vidual Tabor v. may failure be viable. And child-find (10th Cir.2013) 1206, 1229 (holding F.3d may possible the fact that it not be commonality was not satisfied where until identify individual class members a plaintiffs “challenge[d] highly discretion- phase litigation, of the the remedial ary policy granting promotions” prospective when members class [alleged- defendants “failed to maintain the are invited to come forward and estab- ly discriminatory] system any uniform injured among lish that were those manner”). failure, systemic pre- should not this During argument, oral action, may clude a class which be acknowledged that a viable IDEA counsel avenue of relief for those only realistic may pursued claim be as a class action. systemic of their injured by violations undoubtedly That nothing is correct and rights. today sug- our should be taken to decision Systemic violations of the are gest say otherwise. We also mean to v. cognizable. See Doe ex rel. Brockhuis if adopted the District of Columbia has Educ., Dep’t Ariz. at “stopped policy practice the door” Cir.1997) (coll, cases).... (9th Certainly effectively blocks disabled children support ... illegal policy an would being pursuant identified to the child- claim for a violation of the of IDEA requirements find or from other- But IDEA’s child-find mandate. benefits, being considered for IDEA wise might support widespread practices also in appropriate then the affected children a claim. such may challenge the classes or subclasses (7th Cir.2012) (Rov- F.3d in a action. An policy practice class ner, J., part dissenting concurring affecting all class illegal policy principles The enunciated part). “glue” would neces- members eminently otherwise individualized Judge sary litigate Rovner are correct. Stores, Inc. claims as a class. Wal-Mart majority opinion in Jamie S. Even — Dukes, -, action acknowledges that (2011); see also ‘significant proof “if pursued there [is] McReynolds, 672 F.3d 489-91. operated under [the district] school arguments contrary to the are District’s child-find that violated the IDEA.” simply misguided, and the District Court (majority (emphasis in opinion) Id. at 498 claims astray by be lead such should-not Gray original); see also v. Hearst on remand. Commc’ns, Inc., 698, 701- Fed.Appx. (4th Cir.2011) (class pro- action could dispute where “there no [was]
ceed (or obligation) exists or that
uniform applies plain- to all
such uniform