Dl v. District of Columbia , 312 F.R.D. 1 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
")
DL, et al., )
)
Plaintiffs, )
)
v. ) ' Civil Case No. 05-1437
) ,.
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
_ _ _ _ _ __ )
MEMQRANDUM OPINION.
Currently before the Court is the defendants’ Motion to Decertify Subclass 1 [467]. The
plaintiffs in this case are residents of the District of Columbia and former preschool-age children
with various disabilities who allege that the District of Columbia (“the District”) has failed to
provide them a free and public education (“F APE”) in violation of the Individuals with Disabilities
Act (“IDEA”). In November 2013, the Court issued a Memorandum Opinion [389] that certified
four plaintiff subclasses, the first of which the District presently claims no longer satisfies the
commonality requirement of Federal Rule of Civil Procedure 23(a)(2). Upon consideration of the
motion, plaintiffs’ opposition, defendants’ reply, and the entire record herein, the Court will DENY
defendants’ Motion to Decertify Subclass l.
I. BACKGROUND
This lawsuit is rooted in the District’s alleged failures to meet its affirmative obligations
set out in the IDEA. Essentially, the IDEA is designed to ensure that all children with disabilities
ages 3 to 21 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). To achieve its central
goal, the IDEA imposes discrete and limited duties onto states and the District of Columbia—
duties that plaintiffs claim the District has not satisfied and have come to form the basis of the
divisions between the four certified subclasses.
To make education universally available to disabled children ages 3 to 21, the IDEA and
the District’s laws that implement the IDEA require a series of piecemeal, though coordinated,
procedures and policies. First, the District has a duty to “identify and locate every handicapped”
child residing in the city. 34 CPR. 104.32. Next, DC. Code and the IDEA require that the District
evaluate these identified children, 20 U.S.C. § 1414(a)-(c), and coordinate efforts to determine
whether or not they are eligible for disability services. 20 U.S.C. § l4l4(a)-(c); 5 D.C.M.R. 3003.1.
To make the eligibility determination, the District must convene a team that includes parents and
teachers to review, among other things, the results of the evaluations, in order to determine whether
a given child is disabled and requires special education and related services. 20 U.S.C. § 1414(d).
Taken together, the District’s duties to identify, locate, evaluate, and provide an eligibility
determination to disabled children are known as the “Child Find” obligation. See, e. g., Mem. Op.
2, ECF N0. 389.
Once eligibility is determined, the District is required to offer special education and related
services. The District must participate with parents, educators, and other professionals to draft an
Individualized Education Program (“IEP”), tailored to meet the unique needs of the disabled child,
and provide the child with a FAPE. 20 U.S.C. § 1414(d). Lastly, in order to ensure that disabled
children ages 3 to 21 are afforded a FAPE, the law serves children under the age of 3 through a
program entitled the IDEA Part C. Part C requires the District to provide disabled children ages
As the defendants put it, the subclass no longer simply includes those students that the
District did not identify or locate for the purposes of offering special education and related services,
but has been broadened to encompass children not enrolled in special education for reasons that
“have nothing to do with the District’s obligation to locate and/or identify” them. Id. at 5. More
specifically, the District highlights plaintiffs’ contention that the District’s serving between 7.0
and 7.3 5 percent of preschool children in 2014 indicates that it failed to identify and provide special
education services to between 243 and 315 children. In defendants’ view,'the plaintiffs’ use of
these enrollment numbers supports their assertion that the plaintiffs “now perceive the composition
of subclass 1 as relating to enrollment, not identification.” Id. Accordingly, because many children
who are or were unenrolled were in fact identified and located, the class becomes overly broad and
therefore deficient under Rule 23(a)’s commonality analysis.
In making this argument, defendants overlook that the enrollment numbers are used to help
gauge the effectiveness of the District’s efforts to locate and identify disabled children in
connection with their IDEA obligations. The Court agrees with the plaintiffs that “[t]he District’s
enrollment rate does not define the subclass, but is instead a way to measure the effectiveness of
the District’s policies and practices to the identification of children potentially eligible for special
education services.” Pls.’ Opp’n 5. Indeed, in a recent Order [444], this Court ruled that low
enrollment numbers “would suggest that the District has in fact failed in its obligations to locate
disabled children.” Mem. Op. 35. As they always have, plaintiffs continue to use the enrollment
figures as one of many potential ways to approximate the District’s success in identifying and
locating disabled children—mot as a means to define the boundaries of subclass 1.
Although there is reason to believe plaintiffs’ suggestion that enrollment figures gauge the
District’s effectiveness in identifying and locating children, the Court welcomes the District to
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submit evidence to diminish that argument. For example, defendants are free to offer evidence to
counter plaintiffs’ theory by showing that enrollment figures actually do not reasonably
approximate identification rates. Moreover, the District may submit evidence to show that its
enrollment numbers are in fact high enough to suggest that its policy to identify and locate children
has been effectively implemented. Additionally, defendants could ignore the enrollment figures
altogether and produce more direct evidence showing the District has in fact effectively identified
and located children according to its obligations under the IDEA. Such evidence, however, does
not bear on the certification or composition of subclass 1. Indeed, the subclass is presently defined
in the same way that it was in 2013 as the following:
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.
Mem. Op. 9, ECF No. 389..
The enrollment metrics are used to help answer the underlying question that unites the
class, that is, whether or not the District has an effective policy to locate and identify disabled
children. The Court agrees with plaintiffs that using enrollment figures as way to shed light on this
inquiry does not alter the definition of the subclass or the common question that unites its members.
C. Stating a Common True or False Question
Like the first argument, the Court also rejects defendants’ second argument, which asserts
that the individual claims of subclass 1’s members do not tie to any one specific form of
government action or inaction. The District claims the subclass falls short of Rule 23(a)’s
commonality requirement because the members of a subclass do not suffer the same injury for the
same reason. Defs.’ Mot. 6 (citing Wal—Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)).
Contrary to defendants’ suggestion, the Court finds that if any of the members of subclass 1 have
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in fact suffered the harm they allege, it is for one reason alone: the District’s failure to implement
an effective policy to locate and identify disabled children under the terms of the IDEA. Indeed,
whether or not such a policy exists presents a common question that unites the entire class and
determines the viability of each and every member’s individual claim. Therefore, plaintiffs have
satisfied Rule 23(a)’s commonality requirement.
As it stood before this motion, plaintiff subclass 1 was tied together by the true or false
question of whether the District had “policies and procedures to ensure the identification of
disabled children.” Defs.’ Mot. 7. Defendants now argue that after discovery, this articulation is
“conclusory” and “amorphous.” Id. Indeed, discovery has confirmed that the District’s efforts to
identify and locate disabled children involve “an array of discrete government practices . . .
including its maintenance of a diverse referral network, Early Stages office hours at United Health
Care clinics across the city, and education and professional development efforts targeted at parents,
among literally countless others.” Id. Because, even after the benefit of extensive discovery,
plaintiffs have not challenged any of these discrete practices directly, defendants argue that there
is no “true or false question” uniform across the subclass sufficient to satisfy Rule 23(a)(2). Id. at
8.
To support this argument and in reply to plaintiffs’ brief in opposition, defendants rely on
Lightfoot v. District of Columbia, 273 F.R.D. 314 (D.D.C. 2011). The plaintiffs in Lightfoot were
former employees of the District of Columbia who challenged policies and procedures that the
District of Columbia used to terminate their employee disability compensation benefits. Plaintiffs
brought an as-applied constitutional challenge under the principles of procedural due process,
alleging that “defendants reduced, suspended, or terminated disability compensation benefits . . .
without affording beneficiaries adequate and timely notice and opportunity to demonstrate a
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continuing entitlement to benefits in violation of the Due Process Clause.” Id. at 317 (citation
omitted). At an early stage in litigation, a plaintiff class was certified under Rule 23(a), with the
members’ common issue being whether the District “had policy and practice of failing to provide
members of the Plaintiff class Due Process prior to the termination of their disability compensation
benefits.” Id.
Later in the litigation, the Court granted defendants’ motion to decertify the plaintiff class
because the class could no longer satisfy Rule 23(a)’s commonality requirement and Rule
23(b)(2)’s requirement for cohesion. First and foremost, the court took exception to plaintiffs’
contention that “whether the Defendants generally applied termination polices and procedures
[were] consistent with the demand of Mathews,” id. at 325 (citation omitted), presents a true or
false question common to the whole class. The Court found that under the plaintiffs’ interpretation,
“certification would be appropriate wherever class members allege a harm with some connection
to the Due Process Clause—no matter how disparate the class members’ individual injuries may
be and no matter their origins.” Id. at 325. Echoing some of the defendants’ arguments in this case,
the Court in Lighzfoot found that:
[L]urking behind the rather vague and conclusory statement that Defendants had a
‘policy and practice of failing to provide members of the Plaintiff class Due
Process,’ lies a wide variety of more discrete and particularized practices that could
conceivably serve as the foundation for municipal liability. These include, but are
not limited to: the failure to provide any pre-deprivation notice; the failure to
provide a sufficient “grace period” between pre-deprivation notice and actual
termination; the failure to provide an adequate explanation of the reasons for
termination decisions; the failure to provide adequate notice of procedural rights;
the failure to provide claimants with access to case files; and the systematic
exclusion of reliable medical evidence.
Id. at 326.
The Court ruled that for certification to be proper, “[p]laintiffs must first identify a policy or
custom they contend violates due process and then establish that the policy or custom is common
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to the class.” Id. (internal quotation marks omitted). Because the plaintiffs failed to do so, the Court
in Lightfoot ordered the class to be decertified.
Defendants suggest that plaintiffs” argument for commonality is akin to the unsuccessful
claim made by the plaintiffs in Li ghtfoot that they were united by a common question. In Lightfoot,
the plaintiffs’ claim that “[d]efendants ha[d] a policy and practice of failing to provide members
of the Plaintiff class Due Process” was rightly regarded as vague and conclusory. Id. at 326. Unless
plaintiffs were to offer an assertion such as “the District failed to provide any pre-deprivation
notice,” id., a claim that the District’s policy failed to afford due process is at a minimum
hypothetical. More concrete, verifiable information was needed to establish a “common true or
false question [that] . . . can be answered for each of [the plaintiffs’] different claims of harm.” DL
v. District of Columbia, 713 F.3d 120, 128 (DC. Cir. 2013). The plaintiffs’ claims of commonality
were hollow without pointing to a more specific governmental policyfilthat equally and universally
affected them. Indeed, the fact that one class member was denied due process would not
necessarily bear on whether or not another class member was denied due process, at least in the
absence of more specific allegations and information. Defendants now claim that the facts and
legal conclusions in the present case are analogous to the failed claims of commonality in
Lightfoot. Reply in Further Supp. of Defs.’ Mot. to Decertify subclass l 3 (“[T]he way the Court
[in Lightfoot] analyzed the viability of continued class certification based on how the parties’
claims and defenses came into focus is a perfect fit [in this case].”).
The Court disagrees. It is more apt to compare the District’s failure to effectively locate
children under the IDEA with the District’s alleged failure to afford due process by, for example,
specifically neglecting to provide any pre-deprivation notice. As opposed to the plaintiffs in
Lighzjfoot, plaintiffs in subclass l are united by the common question of whether the District’s
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policies, procedures, and practices fail to ensure that it fulfills its identification and location"
obligations under the IDEA. This claim is clear, specific, and independently verifiable, unlike the
deprivation of due process, which is a general and conclusory statement in the absence of hard
facts or a tangible policy. Answering for one class member the question of whether or not the
District had an effective identification and location policy effectively answers that same question
for all class members. Indeed, determining this question’s truth or falsity would “resolve an issue
that is central to the validity of each one of the claims in one stroke.” Wal—Mart, 131 S. Ct. at 2551.
In coming to this conclusion, the Court is partially guided by the observation that “at a
sufficient . . . level of generalization, almost any set of claims can be said to display commonality.”
Love v. Johanns, 439 F.3d 723, 729 (DC. Cir. 2006). It is equally true, however, that a set of
individual claims that do satisfy the commonality requirement can be separately described with
such specificity that the common and legitimate question uniting them may appear overly broad—
or even altogether contrived. Cf. Evon v. Law Ofl‘ices of Sidney Mickell, 688 E.3d 1015, 1030 (9th
Cir. 2012) (“It is not necessary that members of the proposed class share every fact in common.
Thus, the district court abused its discretion in finding that commonality was not satisfied”
(citations and internal quotation marks omitted))..
In negotiating this standard, the Court is unpersuaded by the District’s efforts to show that
a systemic failure to locate children under the IDEA is too general a claim to show commonality
and merit class certification. Defendants point to numerous programs that must run smoothly to
ensure that the District fulfills its statutory obligation to locate disabled children, such as the
“maintenance of a diverse referral network, Early Stages office hours at United Heath Care clinics
across the city, and education and professional development efforts targeted at parts.” Defs.’ Mot.
7. In doing so, defendants look to language in Wal—Mart to argue that because members of subclass
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1 may have not been identified under IDEA for different reasons, the subclass lacks the requisite
commonality. Id. at 6. More specifically, the subclass of disabled children who the District failed
to identify would splinter and become unsuited for certification because “[s]ome subclass
members” alleged injuries would have been caused by having no contact with a referrer,” while
others’ would have been “due to inconvenience of getting to an evaluation center.” Id. at 8.
But defendants ignore that many of the component programs they highlight as part of the
larger policy to effectively identify children can no doubt themselves be further broken down into
other smaller procedures or narrower policies. Just as a myriad of failures can stymie the effective
functioning of the District’s overall identification and location policy, various failures can also
prevent, for example, the District’s effective “maintenance of a diverse referral network.” Indeed,
in the Court’s view, the statement that the “District has failed to ensure identification of disabled
children” is arguably just as generalized and conclusory as the “District has failed to maintain a
diverse referral network.” Each policy necessarily entails coordination between various
government functions, but that does not mean the underlying cause of the harm depends upon
where and how the administrative breakdown occurred. Put differently, the harm flowing from the
District’s failure to meet its affirmative obligation to locate children is not suited for sub-
categorization simply because satisfying that obligation requires the coordination of several
governmental functions. Moreover, as plaintiffs note, in many cases it would be impossible for a
disabled child to know which of the District’s micro-policies was responsible for the District’s
failure to locate him or her. Crucial to the analysis, if the plaintiffs in subclass l were harmed, they
allege that it was due to the District’s failure to develop and administer an effective policy to
identify and locate them. Pls.’ Opp’n 17 (“[P]laintiffs do not challenge the legality of individual
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determinations”) In the Court’s view, this presents a common question amenable to true/false,
yes/no disposition, thus satisfying Rule 23(a)’s commonality requirement.
In coming to this determination, it is important to note that if members of subclass 1 had
claimed that an otherwise effective policy to identify and locate them was erroneously applied in
their specific cases, then yes, defendants would have a very strong argument for decertification.
Plaintiffs would likely have to show that the policy was erroneously applied to them for the same
reason; otherwise, there would be no common question binding them together. To illustrate,
determining that the policy to identify disabled children was wrongly or poorly applied for one
class member would have little to no bearing on determining whether or not the same policy was
erroneously applied as to another class member. But the same is not true for the case currently
before this Court. In this case, the question is not about how well or poorly an individual class
member’s file was handled; it is a question of how well, if at all, the system operated overall.
Indeed, the plaintiffs allege that the District does not have an effective policy to locate and identify
disabled children. Pls.’ Opp’n 2, 17. The truth or falsity of that allegation is common to and
dispositive of each and every subclass member’s individual underlying claim. In the Court’s view,
this shared question suffices to show commonality.
The Court rejects the two overarching arguments defendants make to support their motion
for decertification: (i) subclass l is overly broad; and '(ii) subclass 1 is not tied to any specific
government action or inaction. First, subclass 1 is not overly broad because contrary to defendants’
assertions, it continues to include only those children the District failed to locate and identify, not
the entire universe of unenrolled disabled children. Second, the class is united by a single, specific
manifestation of government inaction, the failure to maintain an effective policy to identify and
locate disabled children in the District of Columbia according to the terms of the IDEA. Plaintiffs
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once again have demonstrated that members of subclass I suffered the same harm—not being
located or identified—for the same reason. Plaintiffs have therefore made a showing to satisfy
Rule 23(a)’s commonality requirement and the various other prerequisites for class certification
with respect to subclass 1.
III. CONCLUSION
For the reasons stated herein, the Court will DENY defendants’ motion for decertification
of subclass l.
{I}
A separate order consistent with this Opinion shall issue on this day of October 2 2015.
ZEN-M
Royce C. Lamberth
United States District Judge
l9
zero to three with “appropriate early intervention services” and to 'develop an Individual Family
Service Plan. 20 U.S.C. § 1435. The law requires that children moving from Part C into preschool
programs designed for three year olds receive a “smooth and effective transition” by their third
birthday. 20 U.S.C. § l412(a)(9).
The merits of the present lawsuit have mainly focused on whether or not the District has
fulfilled these obligations; that said, the lawsuit’s procedural history has been guided, at least in
part, by important issues relating to class certification. After this lawsuit was filed in 2005, in
August 2006 this Court certified a plaintiff class pursuant to Federal Rule of Civil Procedure
23(b)(2), defining it 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 (l) 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); see also Memorandum
Order 3-4, ECF No. 389.
With this group of children serving as the plaintiff class, the Court relied on statistical
analyses and compliance metrics to find that the District’s policies were inadequate to meet its
obligations under the IDEA. See Mem. Op. 4-5, ECF No. 389 (citing DL v. District of Columbia,
845 F. Supp. 2d 1, 10-17 (D.D.C. 2011). The Court found, in effect, 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. DL, 845 F. Supp. 2d at 21-23.
Moreover, the Court 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.
Ultimately, the Court issued a structural injunction, which included programmatic requirements
and numerical goals that would remain in effect until the District demonstrated sustained
compliance. Id. at 25-34.
After the trial but 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). In Wal—Mart, the Court
held that class certification under Rule 23(a)(2) was inappropriate for a putative class of one and
a half million women, all current or former employees of Wal-Mart who alleged 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. In its ruling, the Court emphasized that the
pay and promotion decisions impacting women were not dictated by a uniform corporate policy
but were made by thousands of geographically-dispersed managers. The Court found 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).
Therefore, to establish commonality, 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.
Immediately following the Wal—Mart decision, the defendants in this case sought to
decertify the consolidated plaintiff class that was originally certified in 2006, arguing that the
single and undivided group 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). Essentially, although all
members of the class were denied a FAPE, they were not denied a FAPE for the same reason. The
District looked to Wal—Mart to argue that because any one of a myriad of proven legal violations
and administrative shortcomings could have been the underlying reason for the denial of a disabled
child’s FAPE, the class could not demonstrate commonality. In other words, it was improper to
combine multiple forms of IDEA violations in one broad class because there was no one, discrete
true/false issue central to the validity of plaintiffs’ claims as Wal—Mart unambiguously requires.
For example, some members of the broad class would have been denied a FAPE because the
District failed to have an effective policy to identify them, while others because the District failed
to have an effective policy to perform timely eligibility determinations.
In response to defendants’ motion to decertify the single, broad class, plaintiffs sought 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. Id. at 47 (citing Pls.’ Mem. 5, ECF
No. 217-2. Ultimately, 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, that is, the “denial of their statutory right to a free appropriate
public education.” Id.
Subsequently, the District appealed the. Court’s order denying decertification in the United
States Court of Appeals for the District of Columbia Circuit and ultimately prevailed. The Court
of Appeals vacated the Court’s original class certification order and remanded the case for further
proceedings, holding:
After Wal-Mart it is clear that defining the class by reference to the District’s
pattem 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 ofColumbia, 713 F.3d 120, 126 (DC. Cir. 2013).
In 2013 and on remand from the Court of Appeals, this Court was to reconsider whether a
“class, classes, or subclasses may be certified,” id. at 129, and in doing so, determined certification
was appropriate for each of the four propbsed plaintiff subclasses. Mem. Op. 24-25, ECF No. 389;
The Court found that all four subclasses satisfied Rule 23(a)’s commonality requirement, as well
as class certification’s various other requirements, and ultimately certified the subclasses as
follows:
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.
Id.
When evaluating the substance of Rule 23(a), this Court’s Memorandum Opinion [389]
devoted the majority of its analysis to Rule 23(a)’s commonality requirement, mindful that it
served as the “crux” of both the Supreme Court’s Wal—Mart decision and the more recent Circuit
decision that vacated this Court’s original class certification order. DL v. District of Columbia, 713
F.3d 120, 127 (DC. Cir.) (citing Wal—Mart Stores, Inc. v. Dukes, 131, S. Ct 2541, 2552 (2011)).
At the outset of its commonality discussion, this Court’s memorandum opinion acknowledges that
the search for commonality is complicated because “at a sufficiently abstract level of
generalization, almost any set of claims can be said to display commonality.” Mem. Op. 12, ECF _
No. 389 (quoting Love v.'J0hanns, 439 F.3d 723, 729-30 (DC. Cir. 2006)). As such, courts must
be careful to ensure that class members have suffered the same injury for the same reason, such
as a uniform policy or practice that is illegal. Id. (citing Wal—Mart, 131 S. Ct. at 2551. This
condition “is especially key in cases such as this where plaintiffs allege widespread wrongdoing
by a defendant because a uniform policy or practice that affects all class members bridges the gap
between individual claims of harm.” Id. (citations omitted).
Mindful of these difficulties, this Court found that dividing the plaintiff class into
subclasses according to specific IDEA violations partially resolves the problems of breadth the
Circuit identified on appeal. Specifically, in reversing the Court’s original 2006 class certification,
the Circuit elaborated on its statement that no “common true or false question . . . can be answered
for each of [the plaintiffs’] different claims of harm,” DL v. District of Columbia, 713 F.3d 120,
128 (DC. Cir. 2013), with the following:
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.
Id.
The plaintiffs’ four proposed subclasses remedied this defect in part because they “directly
track[ed] the specific harms identified by the Circuit.” Mem. Op. 13, ECF No. 389. Put differently,
this Court found that each subclass alleges a uniform practice of failure that harmed every subclass
member in the same way. For example, the third subclass sought to litigate the common question
of whether the District fulfilled its statutory duty to perform timely eligibility determinations for
disabled children. See id. at 14. As of the November 2013 order, therefore, this Court found that
the first subclass, like the three others, presents a true or false question common to all members of
the class and dispositive of its claim.
In addition to providing direct analysis under Rule 23(a), this Court also highlighted two
ways in which class certification in this case is distinguishable from that in Wal—Mart. First, unlike
Wal—Mart where the Title. VII claims at issue depended upon “the reason for [each] particular
employment decision,” id. (citing Wal—Mart, 131 S. Ct. at 2552), resolution of the claims in this
case turn on objective, statutorily-defined obligations that lack the amorphous quality of Title VII
decisions. Id. This Court noted that where there is a statutory duty to act—as in the case of the
IDEA—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.”
Id. at 14-15. Second, in contrast to Wal—Mart, where individual decisions were made by
independent managers in over 3,000 stores, in the present case, the development and
administration of the District’s IDEA procedures are centralized in two closely-related agencies,
the District of Columbia Public Schools and the Office of State Superintendent of Education.
Consistent with Wal—Mart’s assertion that commonality could be demonstrated if plaintiffs had
brought common claims of “discriminatory bias of the part of the same supervisor,” id. at 15 (citing
Wal—Mart, 131 S. Ct. at 2551), the administration of the IDEA in the District is highly centralized
and within the purview of a single decisionmaker.
After this Court certified all four subclasses on remand in November 2013, it more recently
ruled on both parties’ summary judgment motions and left a number of subclass 1’s claims to be
determined at the upcoming trial currently scheduled for November 2015. Specifically, subclass
1’s claims under the Rehabilitation Act for the period before March 22, 2010 and its claims under
IDEA and DC. law from April 6, 2011 to the present remain, see Mem. Op. 43, ECF No. 444,
making the present motion for class decertification crucial to a number of this case’s unsettled
issuesé
II. LEGAL ANALYSIS
In their current motion, defendants seek to decertify plaintiff subclass 1 by focusing on
Rule 23(a)’s commonality requirement. Defs.’ Mot. to Decertify Subclass 1 1. As is appropriate,
the District looks to the relevant standard set out in Wal—Mart and makes two basic arguments.
First, in defendants’ view, subclass 1 is too broad to warrant continued certification, and second,
the plaintiffs have not tied the subclass to any specific government action or inaction, a
determination that would be fatal to the subclass’s enduring viability. Of course, this lawsuit has
matured since 2013 when the subclass was originally certified; however, contrary to defendants’
theory, discovery has neither yielded nor failed to yield any information that now renders
certification improper. For the reasons stated below, the Court finds that any changes in the record
or developments in discovery are insufficient to alter the Court’s previous determination that
plaintiffs have shown that subclass 1 satisfies the various and rigorous requirements of class
certification.
A. Class Decertification
After a class is initially certified, Rule 23 expressly grants courts the discretion to revisit
the propriety of continued class certification in later stages of litigation. See Fed. R. Civ. P.
23(c)(1)(C) (“An order that grants or denies class certification may be altered or amended before
final judgment”). Indeed, the Supreme Court has described certification orders as “inherently
tentative,” and, as such, the district court “remains free to modify [such orders] in the light of
subsequent developments in the case.” Gen. Tel. Co. of the SW. v. Falcon, 457 U.S. 147, 160
( 1982). Indeed, courts have noted that “usual reluctance to entertain motions for reconsideration
simply does not apply.” Slaven v. BP Am., Inc. 190 F.R.D. 649, 651 (CD. Cal. 2000). Moreover,
“[a]s the proponent of continued class certification, Plaintiffs [retain] the burden of establishing
that each of the requirements for class certification . . . are met.” Lightfoot v. District of Columbia,
246 F.R.D.326, 332 (D.D.C. 2007) (citing Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 614
(1997).
B. Enrolled Children Versus Identified and Located Children
The Court rejects the District’s first argument, which asserts that because subclass 1
incorporates students who are unenrolled yet were identified and located, it is overly broad and
unfit for certification. See, e.g., Defs.’ Mot. 6 (“[B]oth children are subclass 1 members under
Plaintiffs’ logic, yet only one was injured as a result of not being identified by the District”). In
the Court’s View, this argument misstates the way in which plaintiffs use the enrollment figures.
Plaintiffs use these figures to approximate the overall effectiveness of the District’s policies to
identify and locate disabled children, not to demarcate subclass 1.
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