In re Dist. of Columbia, 14–8001.

• Decision Date: 26 June 2015
• Docket Number: No. 14–8001.,14–8001.
• Citation: 792 F.3d 96
• Parties: In re DISTRICT OF COLUMBIA, a municipal Corporation.
• Court: U.S. Court of Appeals — District of Columbia Circuit

792 F.3d 96

In re DISTRICT OF COLUMBIA, a municipal Corporation.

No. 14–8001.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 6, 2015.

Decided June 26, 2015.

Loren L. AliKhan, Deputy Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for petitioner. With her on the briefs were Eugene A. Adams, Interim Attorney General, and Todd S. Kim, Solicitor General.

Marjorie L. Rifkin argued the cause for respondents. With her on the brief were Jennifer R. Lav, Lyndsay A. Niles, Kelly R. Bagby, Barbara S. Wahl, Brian D. Schneider, and Alison Lima Andersen. Iris Y. Gonzalez entered an appearance.

David A. Reiser, appointed by the court, was on the brief for amici curiae The Legal Aid Society of the District of Columbia, et al. in support of respondents.

Before: KAVANAUGH, MILLETT, and WILKINS, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge:

This Petition is for permission to file an interlocutory appeal challenging the District Court's decision to certify a class. The underlying suit alleges that the District of Columbia (the “District”) does not provide adequate opportunity for community-based care to the District's Medicaid beneficiaries who are currently receiving long-term care in nursing homes.

The grounds on which this Court will grant permission to file an interlocutory appeal under Federal Rule of Civil Procedure 23(f) are well established. See In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C.Cir.2002). This Petition invokes only one of those grounds, submitting that the class certification was “manifestly erroneous.” That makes for an inherently uphill battle for the District, given that “manifest error” is a “high bar,” and this Court has never granted a petition on that basis alone. In re Johnson, 760 F.3d 66, 72 (D.C.Cir.2014). Manifest error requires a showing that the District Court failed to apply the correct legal standard, reached a decision “squarely foreclose[d]” by precedent, id., or otherwise committed an error “that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record.” Black's Law Dictionary 680 (10th ed.2014) (defining manifest error).

Although the District Court itself noted that its critical legal conclusion was not “free from doubt,” we agree that it was not squarely foreclosed by the applicable precedents. The District Court's decision to certify may or may not have been an error. But we cannot say that it was a “manifest error,” which is the standard for us in this interlocutory appellate posture under Rule 23(f). Accordingly, we deny the Petition to permit an interlocutory appeal and therefore decline to reach the merits of the District's challenge to the class certification.

I.

The named Plaintiffs in the underlying case are citizens of the District who have been receiving Medicaid-funded long-term care in nursing homes and who seek access to community-based alternatives. They brought this Olmstead action against the District, alleging it had failed to comply with its obligations under federal law—specifically, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act—that require it to “provide services to people with disabilities in the most integrated setting appropriate to their needs.” Compl. at 2; see also Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (holding that unjustified segregation constitutes discrimination prohibited by the Americans with Disabilities Act). In their Complaint, Plaintiffs claimed to represent “a class of similarly-situated individuals with physical disabilities who desperately desire the freedom to live in their community but instead remain institutionalized in nursing facilities against their will.” Compl. at 3. The District Court denied the District's motion to dismiss the substantive claims. Day v. District of Columbia, 894 F.Supp.2d 1 (D.D.C.2012).

Following amendments to the Complaint and various interim rulings, the District Court denied the District's (renewed) motion to dismiss and granted Plaintiffs' (second) motion for class certification. Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C.2014). The District filed this Petition with our Court for leave under Rule 23(f) to appeal the District Court's class certification order. See Fed.R.Civ.P. 23(f).

II.

In prior cases, we have identified three grounds warranting Rule 23(f) review in this Court:

(1) when a “questionable” class certification decision creates a “death-knell situation” for either party;

(2) when the certification decision presents “an unsettled and fundamental issue of law relating to class actions ... that is likely to evade end-of-the-case review”; and

(3) when the certification decision is manifestly erroneous.

In re Veneman, 309 F.3d 789, 794 (D.C.Cir.2002) (quoting In re Lorazepam , 289 F.3d at 105 ); see also In re Johnson , 760 F.3d at 71. The standard also allows for the possibility that interlocutory review will be appropriate in “special circumstances” beyond the three stated reasons. In re Lorazepam , 289 F.3d at 106.

This Petition, however, invokes only the “manifestly erroneous prong.” In Johnson, we stated:

This is a difficult standard to meet; we have never before granted Rule 23(f) review on the basis of a manifest error and other circuits, too, have indicated there is a high bar for doing so. See, e.g., Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir.2005) (“It is difficult to show that a class certification order is manifestly erroneous unless the district court applies an incorrect Rule 23 standard or ignores a directly controlling case. Class certification decisions rarely will involve legal errors, however, simply because class actions typically involve complex facts that are unlikely to be on all fours with existing precedent.”) (citations omitted).

In re Johnson, 760 F.3d at 72.

A.

The thrust of the District's challenge is its argument that Plaintiffs did not satisfy the “commonality” requirement for class certification. See Fed. R. Civ. P. 23(a)(2). The District contends that the Supreme Court's decision in Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), and this Court's decision in DL v. District of Columbia, 713 F.3d 120 (D.C.Cir.2013), preclude the necessary finding of commonality in this case.

In Wal–Mart, the Supreme Court addressed the commonality requirement as applied to a putative class of 1.5 million female employees in a suit alleging gender discrimination in pay and promotion decisions. 131 S.Ct. at 2547. The Court held that there was no commonality because plaintiffs “wish[ed] to sue about literally millions of employment decisions at once.” Id. at 2552. It explained: “Without 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. (emphasis in original).

Our Court extensively discussed and applied Wal–Mart in DL , which the parties (and we) agree is this Circuit's most important precedent bearing on the certification challenged here. Prior to the Supreme Court decision in Wal–Mart, the district court hearing DL had certified a class challenging the District's “Child Find” system under the Individuals with Disabilities Education Act. See DL, 713 F.3d at 121. In denying a post-Wal–Mart motion to decertify the Class, the district court found that all members of the certified class had “suffered the same injury: denial of their statutory right to a free appropriate public education.” DL v. District of Columbia, 277 F.R.D. 38, 45 (D.D.C.2011). We reversed the certification, observing that Wal–Mart had “changed the landscape” of Rule 23(a)(2). DL, 713 F.3d at 126. The Supreme Court's new guidance was that it is not enough for “class members [to] ‘have all suffered a violation of the same provision of law.’ ” Id. (quoting Wal–Mart, 131 S.Ct. at 2551 ). Instead, the common contention must be “of such a nature that it 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.” Wal–Mart, 131 S.Ct. at 2551.

In this Petition, the District tells us that the District Court erred by failing to “identify any policy or practice common to the claims of every member of the class” and that it failed to reconcile its decision with the guidance of Wal–Mart and DL —that is, the guidance that Rule 23(a)(2) requires more than a showing that class members have suffered violations of the same provision of law.

But the District Court did find something more. In a paragraph titled “Commonality” in the operative complaint, Plaintiffs spelled out seven bulleted questions of law or fact they asserted were common throughout the class.3d Am. Compl. ¶ 156. The District Court expressly referenced this language and grappled with it, observing that although some of the enumerated questions did not meet the Wal–Mart/DL standard, at least two were, in the District Court's view, capable of class-wide resolution and therefore satisfied the standard. Thorpe, 303 F.R.D. at 146–47 & nn. 58–59. The District Court explained in a footnote:

To prevail on the merits and obtain the relief they seek, plaintiffs will have to prove concrete systemic deficiencies. For example, does the District in fact “fail[ ] to offer sufficient discharge planning” or “fail[ ] to inform and provide [nursing facility residents] with meaningful choices of community-based long-term care alternatives to nursing facilities.” (3d Am.Compl. ¶ 156.)

Thorpe, 303 F.R.D. at 146 n. 58. This statement by the District Court is important to our analysis here, because the Supreme Court explained in Wal–Mart that “for purposes of...