United States Court of Appeals, District of Columbia Circuit
March 31, 2017
from the United States District Court for the District of
Columbia (No. 1:05-cv-01437)
E. Pittman, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the
cause for appellants. With her on the briefs were Karl A.
Racine, Attorney General, Todd S. Kim, Solicitor General, and
Loren L. AliKhan, Deputy Solicitor General.
A. Gluckman argued the cause for appellees. With him on the
brief were Margaret A. Kohn, Cyrus Mehri, Carolyn S. Pravlik,
and Patrick A. Sheldon.
Y. González, Daniel B. Kohrman, Kelly R. Bagby, Sharon
Krevor-Weissbaum, Ira A. Burnim, Mary Nell McGarity Clark,
and Martha Jane Perkins were on the brief for amici curiae
AARP, et al. in support of appellees. Jon M. Greenbaum
entered an appearance.
Before: Tatel, Griffith and Millett, Circuit Judges.
than a decade ago, the parents of six children, ages three to
six, sued the District of Columbia, alleging that it was
violating the "Child Find" requirement of the
Individuals with Disabilities Education Act by failing to
provide special education to their children and hundreds of
other preschoolers with disabilities. The district court
certified the suit as a class action under Federal Rule of
Civil Procedure 23, found the District liable, and entered a
comprehensive injunction designed to bring the District into
compliance with IDEA. On appeal, the District argues that the
case has become moot because the six named plaintiffs are no
longer toddlers with a stake in the requested relief. The
District also challenges the class certification and argues
that the injunction exceeds the district court's
authority. For the reasons set forth in this opinion, we
affirm in all respects.
much of this nation's history, children with disabilities
"were either totally excluded from schools or were
sitting idly in regular classrooms awaiting the time when
they were old enough to drop out." Board of
Education of Hendrick Hudson Central School District v.
Rowley, 458 U.S. 176, 179 (1982) (alteration and
internal quotation marks omitted). Faced with this
"pervasive and tragic academic stagnation, "
Congress passed the Education of the Handicapped Act of 1975
(EHA). Endrew F. ex rel. Joseph F. v. Douglas County
School District RE-1, 137 S.Ct. 988, 999 (2017). That
"ambitious" law, Rowley, 458 U.S. at 179,
which applied to public schools receiving federal funds,
sought to provide all children with disabilities a "free
appropriate public education . . . tailored to [their] unique
needs, " id. at 180.
years later, finding that EHA implementation had "been
impeded by low expectations" and resource constraints,
20 U.S.C. § 1400(c)(4)-(7), Congress strengthened the
statute and renamed it the Individuals with Disabilities
Education Act (IDEA), see Pub. L. No. 101-476,
§ 901, 104 Stat. 1103 (1990). This time Congress drew on
its authority under the Spending Clause to offer states a
deal: in exchange for additional federal funding, they would
"pledge to comply" with a series of requirements
designed to ensure that each student receives a "free
appropriate public education, " or FAPE. Endrew
F., 137 S.Ct. at 993; see U.S. Const., Art. I,
§ 8, cl. 1. Among the most important of these
requirements, the "Child Find" provision obliges
states to develop a "practical method" to track
which children are receiving special education services and
to ensure that all children "who are in need of special
education and related services . . . are identified, located,
and evaluated" within a timeframe set by the state-120
days in this case. 20 U.S.C. § 1412(a)(3)(A);
see 20 U.S.C. § 1414(a)(1)(C)(i)(I)
(authorizing states to "establish a timeframe within
which the evaluation must be conducted"); D.C. Code
§ 38-2561.02(a)(1) (requiring an evaluation "within
120 days from the date the student was referred for an
evaluation"). Another requirement, the "smooth and
effective transition" condition, obliges states to
provide a seamless transition when three-year-olds move from
"early intervention" programs (governed by IDEA
Part C) to preschool (governed by IDEA Part B). 20 U.S.C.
§§ 1412(a)(9), 1435(a)(8)(A), 1437(a)(9); 34 C.F.R.
§ 303.209. The transition between these programs
qualifies as "smooth and effective" if, among other
things, it begins at least ninety days before the child's
third birthday, delivers uninterrupted services, and involves
both Part B and C personnel. 20 U.S.C. § 1412(a)(9); 34
C.F.R. § 303.209. In the District of Columbia, which
IDEA defines as a state, see 20 U.S.C. §
1401(31), and which receives millions of dollars of IDEA
funding each year, early intervention programs are run by the
Office of the State Superintendent of Education and preschool
programs by the District of Columbia Public Schools (DCPS).
2005, the parents of six children, ages three to six, sued
the District, alleging a "pervasive and systemic"
breakdown in the school system's Child Find program.
D.L. v. District of Columbia, No. 05-cv-1437, ECF
No. 1, at 3 (D.D.C. July 21, 2005). According to the
complaint, the District was failing to identify large numbers
of disabled children and delivering inadequate and delayed
services to many others. These deficiencies, the parents
argued, were depriving "hundreds" of preschoolers
of their right to a FAPE. Id.
district court, Judge Royce C. Lamberth, certified the suit
as a class action in 2006. D.L. v. District of
Columbia, 237 F.R.D. 319 (D.D.C. 2006). The class
definition was broad: "All children [between three and
five] who are or may be eligible for special education and
related services, who live in, or are wards of, the District
of Columbia" and whom the District had failed or would
fail to "identify, locate, evaluate or offer special
education and related services." Id. at 324-25.
Four years later, the parties each moved for summary
judgment. After reviewing the record, the district court
granted summary judgment to the parents with respect to their
claims up to and through 2007 and scheduled a bench trial on
all remaining claims. D.L. v. District of Columbia,
730 F.Supp. 2d. 84, 95, 98 (D.D.C. 2010). During that trial,
the court heard two days of testimony from statisticians,
school district staff, and experts in education policy and
early childhood development.
trial but before the district court issued its decision, the
Supreme Court decided Wal-Mart Stores, Inc. v.
Dukes, which held that "one of the most expansive
class[es] ever" was too broad to meet the requirements
of Federal Rule of Civil Procedure 23. 564 U.S. 338, 342
(2011). Relying on Wal-Mart, the District moved to
decertify the class, arguing that it was similarly overbroad.
Although the parents insisted that the class complied with
Wal-Mart, they suggested that if the court had any
doubt it should recertify the class as four subclasses of
children whom the District had failed to (1) identify, (2)
timely evaluate, (3) offer a timely determination of
eligibility for special education and related services, and
(4) provide a smooth transition from early intervention
programs to preschool. D.L., ECF No. 271-2, at 7-8
(Aug. 18, 2011). Satisfied that the certified class complied
with Wal-Mart, however, the district court deemed
subclasses unnecessary. D.L. v. District of
Columbia, 277 F.R.D. 38, 46-47 (D.D.C. 2011).
court then found the District liable for violating its Child
Find obligations and failing to ensure a "smooth and
effective transition" for toddlers entering preschool.
D.L. v. District of Columbia, 845 F.Supp.2d 1, 21-23
(D.D.C. 2011). These violations, Judge Lamberth observed,
deprived "some of our most vulnerable citizens" of
services in the "first few years" of their lives, a
"narrow window of opportunity in which special
education, tailored to the child's particular needs, can
work a miracle." Id. at 5. Based on these
findings, the court entered a comprehensive injunction that
set compliance benchmarks and required annual improvement in
the numbers of children identified as needing, evaluated for,
and offered special education and related services.
District appealed, and this court vacated the class
certification order. D.L. v. District of Columbia,
713 F.3d 120, 121 (D.C. Cir. 2013). Citing Wal-Mart,
we held that a class defined 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.'"
Id. (quoting Wal-Mart, 546 U.S. at 350). We
noted that the parents "appeared to recognize [this]
problem, " and had proposed subclasses tied to failures
in four distinct administrative functions. Id. at
128. Rather than deciding whether those subclasses satisfied
Wal-Mart, we remanded to the district court to
consider that question in the first instance.
district court then certified the same four subclasses the
parents had proposed: (1) disabled three-to-five-year-olds
whom the District failed to identify for the purpose of
offering special education services; (2) disabled
three-to-five-year-olds whom the District failed to give an
initial evaluation within 120 days of being referred for
special education services; (3) disabled
three-to-five-year-olds whom the District failed to give an
"eligibility determination"-i.e., a
decision as to whether they qualify for IDEA services-within
120 days of being referred; and (4) all children who
transitioned from early intervention to preschool programs,
and whom the District denied a "smooth transition"
by age three. This court denied the District's petition
for interlocutory review, In re District of
Columbia, No. 13-8009, Doc. No. 1477562 (D.C. Cir. Jan.
30, 2014), and the case once again advanced to summary
judgment, where the district court entered judgment for the
District on all claims concerning subclass two, and then on
to a bench trial. D.L. v. District of Columbia, 109
F.Supp.3d 12, 36 (D.D.C. 2015). After considering testimony
from seventeen witnesses and reviewing hundreds of exhibits,
the district court issued a 130-page opinion finding the
District liable for violating IDEA. D.L. v. District of
Columbia, 194 F.Supp.3d 30 (D.D.C. 2016).
district court's findings were stark. It found that the
District was failing to identify between 98 and 515 children
a month-some two percent of preschoolers with disabilities
who should have been located and offered special education
services. Id. at 48. This placed the District's
Child Find performance below jurisdictions with comparable
rates of childhood disability, such as Arkansas, Kentucky,
and Puerto Rico. Id. at 48, 53. In addition, the
court found that the District was failing to provide a
"smooth and effective transition" to almost 30
percent of disabled toddlers, id. at 63, and despite
having the "longest period of time in the country"
to decide whether children qualify for special education
services, was missing the deadline for issuing eligibility
determinations approximately 20 percent of the time,
id. at 58-59.
that the District had improved its Child Find program since
2007, when it had "the lowest percentage" of
special education enrollment in the United States, the court
stressed that "the District ha[d] yet to attain a period
of sustained compliance." Id. at 78, 98.
Indeed, the court observed, the numbers of children receiving
special education had fallen by 15 percent in 2013 and 2014
when the District lacked "an enrollment
benchmark"-i.e., a target number of children
who should be enrolled in special education and related
services. Id. at 51. Given these deficiencies, the
court concluded that injunctive relief was necessary and,
drawing on its "broad authority to grant
'appropriate' relief, '" Forest Grove
School District v. T.A., 557 U.S. 230, 239 (2009)
(construing 20 U.S.C. § 1415(i)(2)(C)(iii)), crafted
remedies for the three remaining subclasses.
subclass one-children the District was failing to
identify-the court set an 8.5 percent enrollment target, a
figure drawn from national rates of special education
enrollment and expert testimony concerning risk factors
unique to Washington, D.C. To reach that target, the court
required the District to increase enrollment rates by half a
percent each year. For subclass three-children denied timely
eligibility determinations-the court ordered the District to
meet the statutory deadline 95 percent of the time and to
improve its performance annually until it reached that level.
Similarly, for subclass four-toddlers transitioning to
preschool-the court required annual improvement, with an
ultimate goal of 95 percent compliance. The court also
imposed a range of "programmatic" remedies designed
to improve the District's methods of finding and tracking
children in its system. D.L. v. District of
Columbia, 194 F.Supp.3d 30, 101-03. These remedies
included requirements that the District establish databases,
disseminate information to parents, and report its progress
to the court.
appeal, the District challenges none of the district
court's basic findings: that it was failing to identify
children with disabilities, that it often missed the deadline
for issuing eligibility determinations, and that it was
providing a rocky transition to toddlers entering preschool.
Instead, it argues that: (1) the case is moot because by the
time the district court certified the subclasses in 2013 each
named plaintiff was over age five, (2) class certification
was improper under Wal-Mart, and (3) the injunction
was unauthorized by IDEA and unsupported by the evidentiary
considering these arguments, we think it helpful to note that
the parents who brought this case are not the only ones
concerned with the District's IDEA compliance. Since at
least 1997, the U.S. Department of Education, which oversees
state performance under IDEA, has repeatedly warned the
District that it was neglecting its Child Find obligations.
See id. at 72- 78 (documenting the Department's
correspondence with the District since the mid-1990s);
see also 20 U.S.C. § 1416(d)-(e) (authorizing
the Secretary of Education to review state IDEA compliance
and to withhold federal funds). In 1998, the Department
"entered into a Compliance Agreement with DCPS mandating
full compliance with the requirements of Part B of the
IDEA." D.L., 194 F.Supp.3d at 76. In the two
decades since, the Department has nonetheless regularly
listed DCPS as a school district that "needs
intervention." Id. at 73-79. According to the
Department, the District has been especially deficient in its
duty to timely evaluate children referred for special
education by a parent, teacher, or pediatrician. Id.
at 73. The Department even withheld a portion of the
District's funding in 2009. Id. at 77. Although
the record here reveals no specific link between the
Department's actions and this case, the subclass two
complaints, which focus on the same problem with timely
evaluation, have been resolved. See D.L. v. District of
Columbia, 109 F.Supp.3d 12, 36 (D.D.C. 2015) (granting
summary judgment as to subclass two). This case now involves
identification (subclass one), eligibility determinations
(subclass three), and transition to preschool (subclass
with mootness, we start from a point on which the parties
agree: when the district court certified subclasses, the
named plaintiffs' individual claims for injunctive relief
were moot because, by that time, each child was older than
five and, according to the District, had received special
education services. The District argues that this rendered
the dispute non-justiciable. According to the parents,
however, two exceptions to the mootness doctrine apply:
first, a "relation back" exception, which permits
class actions to proceed when a named plaintiff's
individual claim becomes moot only after a district
court's error; and second, the "inherently
transitory" exception, which applies to claims so
fleeting that "the trial court will not have even enough
time to rule" on ...