DL v. Dist. of Columbia, Corp.

• Decision Date: 12 April 2013
• Docket Number: Nos. 11–7153,12–7042.,s. 11–7153
• Citation: 713 F.3d 120
• Parties: DL, et al., Appellees v. DISTRICT OF COLUMBIA, A Municipal Corporation, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

713 F.3d 120

DL, et al., Appellees

v.DISTRICT OF COLUMBIA, A Municipal Corporation, et al., Appellants.

Nos. 11–7153, 12–7042.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 10, 2013.

Decided April 12, 2013.

Appeals from the United States District Court for the District of Columbia (No. 1:05–cv–01437).

Todd S. Kim, Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellants. With him on the briefs were Irvin B. Nathan, Attorney General, and Donna M. Murasky, Deputy Solicitor General. Mary L. Wilson, Assistant Attorney General, entered an appearance.

Bruce J. Terris argued the cause for appellees. With him on the brief were Jeffrey S. Gutman, Cyrus Mehri, Jane M. Liu, and Margaret A. Kohn.

Kelly Bagby, Daniel Kohrman, Michael Shuster, Ira A. Burnim, Joseph B. Espo, and Sharon Krevor–Weisbaum, were on the brief for amici curiae AARP, et al. in support of appellees.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Senior Judge EDWARDS.

ROGERS, Circuit Judge:

The District of Columbia appeals from the structural injunction entered by the district court in this class action challenging the policies and practices of the District's “Child Find” system under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. It principally contends that the class certification pursuant to Federal Rule of Civil Procedure 23(a)(2) was improper as a matter of law, and that the district court lacked discretion to award systemic relief, or at least acted impermissibly in the absence of an explanation of how it bridged the gap between individual relief and the systemic relief ordered. In view of the clarification in Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011), of the requirements of Rule 23(a)(2), we vacate the class certification order, and consequently the liability and remedial orders, and we remand the case for the district court to reconsider whether a class, classes, or subclasses may be certified and if so, thereafter to redetermine liability and appropriate relief.

I.

The IDEA provides federal funds to assist States and local agencies in educating children with disabilities “and conditions such funding upon a State's compliance with extensive goals and procedures.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295–96, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (quoting Board of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). A “State” is defined to include the District of Columbia. 20 U.S.C. § 1401(31). One of the primary purposes of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education.” See id. § 1400(d)(1)(A); Alegria v. Dist. of Columbia, 391 F.3d 262, 263 (D.C.Cir.2004). The IDEA conditions the receipt of federal funding on there being “in effect policies and procedures to ensure” that all children residing therein between the ages of 3 and 21 have access to a “free appropriate public education” (“FAPE”). See20 U.S.C. § 1412(a)(1)(A). A principal means of fulfilling this obligation is to establish a “Child Find” program under which children with disabilities in need of special education “are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” Id. § 1412(a)(3)(A). This includesensuring that “[c]hildren participating in early intervention programs ..., and who will participate in preschool programs ... experience a smooth and effective transition....” Id. § 1412(a)(9).

The IDEA provides that “[c]hildren with disabilities and their parents are afforded the procedural safeguards required by section 1415 of this title.” Id. § 1412(a)(6). Section 1415 provides that there shall be “an opportunity for any party to present a complaint—(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” Id. § 1415(b)(6)(A). Upon exhausting administrative remedies, “any party aggrieved by the findings and decision made ... shall have the right to bring a civil action with respect to the complaint presented.” Id. § 1415(i)(2)(A). A court—after evaluating the “records of the administrative proceedings,” “hearing additional evidence at the request of a party,” and “basing its decision on the preponderance of the evidence”—“shall grant such relief as the court determines is appropriate.” Id. § 1415(i)(2)(C). The Secretary of Education annually reviews the performance plan of a State on the conditions set forth in § 1412 and may withhold or recover funds upon finding poor performance of the IDEA obligations. See generally id. § 1416.

In July 2005, six named plaintiffs, on behalf of themselves and others similarly situated, sued the District of Columbia government and the D.C. Superintendent of Public Schools (hereinafter, “the District”), pursuant to 42 U.S.C. § 1983. They identified themselves in terms of their own experiences at various stages of the IDEA Child Find and FAPE process, see Am. Compl. ¶¶ 5–76, and alleged that the District's “actions amount to a policy, pattern, practice or custom that violates federal law and shows deliberate indifference to plaintiffs' federal rights,” id. ¶ 109. Specifically, they alleged that the District's policies and practices had resulted in systemic failures to identify, locate, evaluate, and offer special education and related services to disabled preschool-age children, in violation of the IDEA, 20 U.S.C. § 1412(a), § 504 of the Rehabilitation Act,¹ federal and District of Columbia regulations implementing the IDEA,² and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Am. Compl. ¶¶ 1, 109. As relief, they requested certification of a specified class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure; a declaratory judgment that the District had violated federal and District of Columbia law, including the IDEA, by failing to identify, locate, evaluate and offer a FAPE to eligible children and to ensure a smooth and effective transitionfrom early intervention to preschool programs; and preliminary and permanent injunctions ordering the District to “develop and implement adequate and effective policies and procedures and a practical method of identifying, locating and evaluating plaintiffs for special education and related services.” Id. at 33–34. They also sought, among other things, orders enjoining the District to provide “compensatory education to the plaintiffs whom defendants failed to identify, locate, evaluate or offer special education and related services when they were between three and five years old, inclusive,” and to provide reimbursement of privately expended funds for these services, as well as the appointment of a special master. Id. at 35.

In August 2006, the district court certified the specified class pursuant to Rule 23(a) and 23(b)(2).³See D.L. v. Dist. of Columbia, 237 F.R.D. 319 (D.D.C.2006). The certified class was defined 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 (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.

Id. at 321. The district court found that the Rule 23(a) commonality requirement was met because “plaintiffs ... have a common injury, namely the denial of a FAPE under the IDEA,” and all “allege that defendants have violated the Child Find requirement.” Id. at 322. Regarding Rule 23(a) typicality, the district court found that the “named plaintiffs were injured by the same alleged systemic pattern of IDEA violations that allegedly injured the other class members, and that the named plaintiffs' injury [was] typical of the other class members' injuries.” Id. The plaintiffs had, the court explained, “pointed to practices which, if proven, constitute a pervasive pattern and practice of failing to identify, locate, evaluate and offer them services and that defendants lack an adequate Child Find system,” allegations that were “sufficient to satisfy the Rule 23(b)(2) requirement.” Id. at 324.

In 2010, following lengthy discovery, see generally D.L. v. Dist. of Columbia, 274 F.R.D. 320, 322–24 (D.D.C.2011), the district court granted in part the District's motion for summary judgment, ruling that the plaintiffs could not proceed under 42 U.S.C. § 1983 to enforce the IDEA and rejecting the plaintiffs' argument “that the IDEA does not provide the full relief they are requesting.” ⁴D.L. v. Dist. of Columbia, 730 F.Supp.2d 84, 92 (D.D.C.2010). The district court concluded that a “ successful civil action directly under the IDEA ... will have the same effect as a § 1983 action,” and elected to “construe the First Claim of plaintiffs' Amended Complaint to state a cause of action directly under § 1415(i)(2)(A) of the IDEA.” Id. at 92–93. The district court also granted the plaintiffs' motion for partial summary judgment as to liability under the IDEA, the Rehabilitation Act, and District of Columbia law. See id. at 94–95, 99–100. Upon reviewing data through 2007, the district court found that the District had denied a FAPE to a large number of children aged 3 to 5 years old in violation of IDEA § 1412(a)(1)(A), id. at 95; failed to comply with...