                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                       )
DL, et al.,                            )
                                       )
                  Plaintiffs,          )
                                       )
            v.                         )     Civil Case No. 05-1437 (RCL)
                                       )
DISTRICT OF COLUMBIA, et al.,          )
                                       )
                  Defendants.          )
                                       )
______________________________________ )

                                  MEMORANDUM OPINION

       Currently before the Court is defendants’ motion [510] to dismiss as moot plaintiffs’

Rehabilitation Act claims for the period before March 22, 2010. On June 10, 2015, the Court

granted summary judgment for defendants with respect to plaintiffs’ Rehabilitation Act claims for

the period after March 22, 2010, finding that even if the District were in violation of the Individual

with Disabilities Education Act, the city’s actions during this time did not “rise to the level of bad

faith or misjudgment.” Mem. Op. 42, ECF No. 444. After this ruling, all that remained for trial

under the Rehabilitation Act were plaintiffs’ claims for the period prior to March 22, 2010.

       The defendants now argue that these pre-2010 claims are moot because in light of the

defendants’ favorable ruling for March 22, 2010 to the present, it is “impossible for the court to

grant any effectual relief whatever to [the] prevailing party.” Defs.’ Mot. to Dismiss the “Second

Claim” of the Second Am. Compl. 1, ECF No. 510 (citing City of Erie v. Pap’s A.M., 529 U.S.

277, 287 (2000)). The Court will now reject this argument, finding that the “voluntary cessation”

exception to the mootness doctrine applies in this case. Upon consideration of the motion,




                                                  1
plaintiffs’ opposition, defendants’ reply, and the entire record herein, the Court will DENY

defendants’ motion to dismiss as moot what remains of plaintiffs’ Rehabilitation Act claims.

  I.   BACKGROUND

       At the heart of this case is the Individuals with Disabilities Education Act (“IDEA”) and

section 504 of the Rehabilitation Act. Plaintiffs are residents of the District of Columbia and former

preschool-age children with various disabilities who allege that the District failed to provide them

a “free and appropriate public education” (“FAPE”) as is required by law. The IDEA requires,

among other things, that states accepting certain federal government funds must provide disabled

children with a FAPE. 20 U.S.C. § 1412(a)(1); see also Mark H. v. Lemahieu, 513 F.3d 922, 925

(9th Cir. 2008) (describing how the IDEA and the Rehabilitation Act’s implementing regulations

each require states to provide a FAPE to all disabled children). Section 504 of the Rehabilitation

Act, on the other hand, is not limited solely to educational settings. It provides, more broadly, that

“no otherwise qualified individual with a disability in the United States . . . shall, solely by reason

of her or his disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial assistance.”

29 U.S.C. § 794(a); see also Mem. Op. 3, ECF No. 55. Indeed, in order to prevail on a section 504

claim, “plaintiffs must show that ‘something more than a mere failure to provide the ‘free and

appropriate education’ required by the [IDEA]’ has occurred.” Mem. Op. 3–4, ECF No. 55

(quoting Walker v. District of Columbia, 157 F. Supp. 2d 11, 35 (D.D.C. 2011)). As this Court has

previously ruled, section 504 requires that plaintiffs show that defendants engaged in either “bad

faith or gross misjudgment.” Id. at 4 (citing Walker, 157 F. Supp. 2d at 38).

       The procedural history of this matter is lengthy and presented in detail in the Court’s

Memorandum Opinion dated June 10, 2015. See Mem. Op. 3–8, ECF No. 444. The Court need not



                                                  2
rehash it here, but for the purposes of the present motion, it is important to highlight two features

of the record. First, after conducting a trial in 2011, the Court found that the District of Columbia

had violated both the IDEA and the Rehabilitation Act and issued an array of remedies. Id. at 5–

6. Among them was a declaratory judgment stating:

       Defendants violated Section 504 of the Rehabilitation Act for the period January 1,
       2008 to April 6, 2011 (the first day of trial) because, in violating the IDEA, defendants
       failed to exercise professional judgment in such a way as not to depart grossly from
       accepted standards among educational professionals and thus demonstrated bad faith
       or gross misjudgment.

Mem. Op. & Findings of Fact and Conclusions of Law ¶ 137, ECF No. 294.

       This ruling further extended the Court’s August 10, 2010 summary judgment ruling, which

found the defendants had violated the Rehabilitation Act “at least through and including the year

2007.” Mem. Op. 23, ECF No. 198. Ultimately, the opinions and orders that ruled the defendants

had violated the Rehabilitation Act were vacated by the D.C. Circuit on class certification grounds.

See DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013).

       Later, after the D.C. Circuit vacated the Court’s orders and remanded the case, the plaintiffs

submitted a second amended complaint, proposing to separate the plaintiff class into four

subclasses and reasserting their claims under the IDEA and the Rehabilitation Act. See Second

Am. Compl. ¶¶ 79, 110–114, 115–119. The Court certified the four subclasses on November 8,

2013, see Order, ECF No. 388, and on June 10, 2015, the Court issued a summary judgment order

ruling for the defendants on the plaintiffs’ Rehabilitation Act claims for the period after May 22,

2010. See Order 2, ECF No. 445. Essentially, on March 22, 2010, the District issued

comprehensive policies to comply with its Child Find and FAPE obligations. Mem. Op. 33, ECF

No. 444. In doing so, the Court found that the District was “no longer responding to its failures

with indifference and inaction,” and therefore ruled for the defendants on summary judgment for



                                                  3
the period after March 22, 2010. Id. at 39. With respect to the Rehabilitation Act, plaintiffs’ claims

for the period prior to March 22, 2010 were all that remained for trial. Id. at 40.

       In its current motion, the District argues that the plaintiffs’ Rehabilitation Act claims for

the period preceding March 22, 2010 are moot because a “declaratory judgment based on the

earlier period would have no operative effect on the parties’ rights and relations.” Defs.’ Mot. 1,

ECF No. 510. In response, plaintiffs argue that the voluntary cessation exception to the mootness

doctrine applies and that a declaratory judgment for that time period would otherwise provide the

plaintiffs with effective relief. See generally Pls.’ Opp’n to Defs.’ Mot. to Dismiss, ECF No. 516.

 II.   LEGAL STANDARD

       A motion to dismiss for mootness is properly brought under Federal Rule of Civil

Procedure 12(b)(1). See Young v. D.C. Hous. Auth., 31 F. Supp. 3d 90, 94 (D.D.C. 2014) (citing

Flores v. District of Columbia, 437 F. Supp. 2d 22, 25 n.4 (D.D.C. 2006)). The rule imposes on

the Court “an affirmative obligation to ensure that it is acting within the scope of its jurisdictional

authority.” Id. at 94–95 (citing Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004)). Indeed,

mootness carries jurisdictional significance, as the “case or controversy” requirement of Article

III permits courts to adjudicate only “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305,

317 (1988). To elaborate, a case becomes moot when “when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the outcome,” Cnty. of L.A. v. Davis, 440

U.S. 625, 631 (1979) (citation omitted); see also Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d

627, 631 (D.C. Cir. 2002) (“[A case is moot when] events have so transpired that the decision will

neither presently affect the parties’ rights nor have a more than speculative chance of affecting

them in the future.” (citation omitted)), or when “intervening events makes it impossible to grant

the prevailing party effective relief.” Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008); see



                                                  4
also Spencer v. Kemna, 523 U.S. 1, 18 (1998) (stating that mootness deprives the Court of

jurisdiction because “there is nothing for [the court] to remedy, even if [it] were disposed to do

so”).

        Although the mootness doctrine generally requires a case to present an “ actual, ongoing

controvers[y],” Honig v. Doe, 484 U.S. 305, 317 (1988), an exception exists where a party has

extinguished the controversy by voluntarily changing its allegedly unlawful conduct after the

commencement of a lawsuit. See Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (“[V]oluntary cessation

of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case,

i.e., does not make the case moot.”). Known as the “voluntary cessation exception,” this rule

responds to the imperative that “federal courts [] not leave a wily defendant ‘free to return to his

old ways’” after a lawsuit is terminated. Sharp v. Rosa Mexicano, D.C., 496 F. Supp. 2d 93, 98–

99 (D.D.C. 2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,

189 (2000)). That said, a Court may “nonetheless conclude that voluntary cessation has rendered

a case moot if (1) there is no reasonable expectation that the alleged violation will recur . . . and

(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged

violation.” Young v. D.C. Hous. Auth., 31 F. Supp. 3d 90, 96 (D.D.C. 2014) (quoting Cnty. of L.A.

v. Davis, 440 U.S. 625, 631 (1979)). Importantly, demonstrating the first prong, that “the

challenged conduct cannot reasonably be expected to start up again,” is a “heavy burden.” Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000)); see also id. at 170

(“Thus, the standard for determining whether a case has been mooted by the defendants’ voluntary

conduct is stringent: A case might become moot if subsequent events make it absolutely clear that

the allegedly wrongful behavior could not reasonably be expected to recur.” (emphasis added)).




                                                 5
        As stated, in addition to the requirement that there be an actual ongoing controversy, a case

is moot if the Court is not in a position to provide the prevailing party “any effectual relief

whatever.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). For the purposes of mootness

analysis, “‘any effective relief whatever’ is expansively defined.” Ctr. for Food Safety v. Salazar,

900 F. Supp. 2d 1, 5 (D.D.C. 2012) (citing City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)).

        Although these two requirements are often discussed separately, they are related. As such,

when considering the mootness doctrine’s requirement that a court be in the position to provide

effectual relief, it is important to consider that requirement’s relationship to the voluntary cessation

exception and to the mootness doctrine more broadly. As the Supreme Court has put it:

        The underlying concern is that, when the challenged conduct ceases such that there
        is no reasonable expectation that the wrong will be repeated, then it becomes
        impossible for the court to grant any effectual relief whatever to [the] prevailing
        party. In that case, any opinion as to the legality of the challenged action would be
        advisory.

City of Erie, 529 U.S. at 287 (internal quotation marks and citations omitted).

        In the Court’s view, the words “when the challenged conduct ceases such that there is no

reasonable expectation that the wrong will be repeated” invoke the voluntary cessation exception.

See also Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 683–84 (2016) (Alito, J., dissenting)

(discussing how the voluntary cessation exception ties into the requirement for effectual relief,

stating: “In the language of our mootness cases, [cases involving voluntary cessation] would not be

moot because a court could still grant the plaintiff ‘effectual relief’—namely, the relief sought in

the first place” (citing Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012)

(emphasis in original)). Therefore, this Court interprets City of Erie to mean that if a party claims

that a court is unable to provide effectual relief because that party has ceased its allegedly unlawful

conduct, then the party must show it has satisfied the two necessary conditions that block the



                                                   6
application of the voluntary cessation exception. That is, to prevail on such an argument, the

defendant must demonstrate “there is no reasonable expectation that the alleged violation will recur

. . . and interim relief or events have completely and irrevocably eradicated the effects of the

alleged violation.” Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979).

III.   DISCUSSION

       The Court finds that because the District voluntary changed its behavior after the

commencement of this lawsuit, mootness questions regarding the plaintiffs’ outstanding

Rehabilitation Act claims must be analyzed under the voluntary cessation exception. Further, the

Court finds these claims are not moot because defendants have not met the first prong of their

burden to show that there could be “no reasonable expectation that the alleged violation will recur.”

Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979).

       Additionally, the Court finds that a declaratory judgment stating the District had violated

the Rehabilitation Act for the period preceding March 22, 2010 is an effective remedy because it

could be used to provide the basis for future litigation. Indeed, issuing a declaratory judgment that

related to pre-2010 conduct today would be just as effective as it was in 2011, when the Court

issued its first declaratory judgment. See Mem. Op. & Findings of Fact and Conclusions of Law ¶

137, ECF No. 294. What follows is a summary of the parties’ briefs and the Court’s mootness

analysis.

   1. Defendants’ motion to dismiss for mootness and the accompanying brief

       In their motion, the defendants argue the voluntary cessation exception does not apply in

this case and that the Rehabilitation claims are moot because “it is impossible for the court to grant

any effectual relief whatever to the prevailing party.” Defs.’ Mot. to Dismiss 1, ECF No. 510

(citing City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). The District focuses on the Court’s



                                                  7
ruling to grant summary judgment to the District on the plaintiffs’ Rehabilitation Act claim for the

period of March 22, 2010 to the present. See Mem. Op. 39–42, ECF No. 444. Specifically, the

District argues that in light of this ruling, “a declaratory judgment based on the earlier period would

have no operative effect on the parties’ rights or relations.” Defs.’ Mot. to Dismiss 1.

       After presenting its main arguments for mootness, the defendants’ opening brief proceeds

in three parts. First, the District states that “due to defendants’ drastic programmatic changes, a

declaratory judgment over the dismantled pre-2010 system would have nothing on which to

operate.” Id. at 5. In other words, because defendants have been in compliance with the

Rehabilitation Act for five years, there is no longer a “genuine claim of injury or possible injury

of sufficient immediacy and reality to warrant the issuance of a declaratory judgement.” Id. (citing

Preiser v. Newkirk, 422 U.S. 395, 403 (1975)). Next, the District argues that the voluntary

cessation exception does not apply to plaintiffs’ claims because there is no reasonable expectation

that bad faith or gross mismanagement will resume. It references several examples of “the

continuing success of the District’s special education professionals” (e.g., stating that the city

currently has in place policies to track and screen disabled children and that the data it provides is

accurate) to argue that the possibility of reversion to pre-2010 dysfunction is remote. Id. at 7.

       Lastly, the defendants dispute the general effectiveness of a declaratory judgment.

Defendants’ reference the plaintiffs’ previous argument that a declaratory judgment constitutes

effective relief because it would provide “the basis for renewed litigation in this case or a new

case.” Id. at 8 (quoting Pls.’ Opp’n to Defs.’ Mot. to Dismiss 21, ECF No. 471). The District then

contends that because the argument’s rationale “rests upon contingent future events that may not

occur as anticipated,” it presents insurmountable ripeness issues and is therefore invalid. Id. at 8

(quoting Shaffer v. Def. Intelligence Agency, 601 F. Supp. 2d 16, 23 (D.D.C. 2009)). Defendants



                                                  8
state, in summary, “[the] [p]laintiffs’ unfounded fear [of future litigation] does not support

declaratory relief, and entertaining such speculation would run afoul of the ripeness doctrine.” Id.

at 9.

    2. Plaintiffs’ Response

        Plaintiffs begin their response brief by highlighting the legal standard governing voluntary

cessation: Mootness can be found only if the “defendant can meet its ‘heavy burden’ of showing

that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected

to recur.’” Pls.’ Opp’n to Defs.’ Mot. to Dismiss 5, ECF No. 516 (citing United States v.

Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). Plaintiffs’ brief then proceeds

in two overarching sections.

        First, plaintiffs argue that defendants changed their behavior in response to plaintiffs’

lawsuit. Plaintiffs highlight several examples, including emails and a practice manual, to support

its position. See id. at 7–9. After claiming that the defendants reformed in an effort to escape

liability, plaintiffs contend that the defendants have not shown and cannot show that it is absolutely

clear there could be no reasonable expectation the allegedly wrongful behavior will recur. Not only

have that, but plaintiffs claim the District may actually be prone to backslide. In making this

argument, the plaintiffs look to, among other things, the District’s failure to meet the Court’s

previous (now-vacated) targets, the fact the district is no longer operating under an enrollment

benchmark, and the District’s “extremely long and well-documented history of violations

identified by OSEP.” Id. at 17.

        Second, plaintiffs argue that their request for declaratory relief poses no ripeness problems

and that declaratory relief is otherwise an effective and meaningful remedy. Plaintiffs claim the

defendants raise ripeness issues as an attempt to shift their own burden of showing that the



                                                  9
allegedly wrongful activity cannot be reasonably expected to recur. Further, plaintiffs contend that

because the declaratory judgment would relate to a finding of liability for past, not future behavior,

there can be no issue over the claims’ ripeness. Id. at 21. Additionally, plaintiffs reiterate that a

declaratory judgment “would provide the basis for renewed litigation in this case or a new case,”

and therefore offers the plaintiffs some measure of effective relief. Id. at 23. Finally, plaintiffs

argue that a declaratory judgment would be effective because it would potentially deter future

misconduct by the District and more broadly serve the public interest. Id. at 24–26.

   3. Defendants’ Reply

       Defendants begin their reply brief by arguing that the evidence plaintiffs use to show

violations of the Rehabilitation Act could be reasonably expected to recur is irrelevant to the

statute’s requirement for a showing “bad faith” or “gross misjudgment.” Defs.’ Reply 1, ECF No.

517. Any recent violations, defendants argue, speak only to non-compliance with the IDEA and

are therefore unrelated to the mootness analysis for plaintiffs’ claims under the Rehabilitation Act.

See id. at 2. Next, defendants discuss three cases that plaintiffs reference in their brief and attempt

to distinguish the facts of those cases from the facts in the present one. First, defendants discuss

Young v. District of Columbia Housing Authority, 31 F. Supp. 3d 90 (D.D.C. 2014), where hearing-

impaired plaintiffs sued the housing authority for failing to make its voucher programs accessible

to people with hearing disabilities. After the commencement of legal action, the defendant put in

place a “notice system,” which it claimed would ensure that a sign language interpreter would be

present at all scheduled housing voucher appointments, and thereafter submitted a motion to

dismiss for mootness. The Court denied that motion under the voluntary cessation exception,

finding the defendant could not show an unlikelihood of recurrence in part because the relief

provided “could easily be undone.” Defs.’ Reply 2 (citing Young, 31 F. Supp. 3d at 96). The



                                                  10
defendants then argue this matter is distinguishable from Young because the “District’s special

education system would require multiple intentional efforts to dismantle.” Id. at 2–3.

        After discussing Young, defendants reference and attempt to distinguish Environmental

Defense Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1982) and In re Center for Auto Safety,

793 F.2d 1346 (D.C. Cir. 1986), two cases where courts found the voluntary cessation exception

to apply. For Gorsuch, the District highlights that the defendant in that case had violated the statute

“36 other instances in the last two years,” which they claim contrasts sharply with the present

situation where the Court has ruled the defendants have fully complied with the Rehabilitation Act

since March 2010. Id. at 3 (citing Gorsuch, 713 F.2d at 811 n.20). In addressing In re Center for

Auto Safety, the District emphasizes that no structures had been put in place to ensure future

compliance; defendants in that case offered only a “bald assertion” that they would continue to

follow the statutory mandate to timely issue regulations after seven years of non-compliance. Id.

at 3–4 (citing In re Ctr. for Auto Safety, 793 F.2d at 1352–53). The District suggests that, unlike

in Center for Auto Safety, the web of policies, safeguards, and personnel the District now has in

place (and that have secured compliance with the Rehabilitation Act for the last five years)

provides additional assurances that the alleged past violations of the Rehabilitation Act will not

recur. Id. at 4.

    4. Analysis

        To determine if plaintiffs’ Rehabilitation claims are moot, the Court must decide two

independent though related questions: First, whether or not there is an actual, ongoing controversy,

and second, whether the requested declaratory judgment would provide the plaintiffs with an




                                                  11
effectual remedy. As discussed, the voluntary cessation exception applies with equal force to each

of these requirements.

        After considering the parties’ arguments, the Court finds that plaintiffs’ claims are not moot

because the voluntary cessation exception does apply. Further, the Court finds that a declaratory

judgment would provide effectual relief because a definitive ruling could provide the basis for

renewed litigation or a related dispute. This benefit is particularly given that “the parties are

involved in an ongoing relationship that may present the opportunity for future disagreement.”

Halkin v. Helms, 690 F.2d 977, 1007 (D.C. Cir. 1982).

        A. Existence of an actual, ongoing controversy and the voluntary cessation exception

        The Court conclusively finds that the defendants have not met their “heavy burden,” Cnty.

of L.A. v. Davis, 440 U.S. 625, 631 (1979), to make “absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., Inc., 528 U.S. 167, 170 (2000) (citing United States v. Concentrated Phosphate Export

Ass’n, 393 U.S. 199, 203 (1968)); see also Kifafi v. Hilton Hotels Retirement Plan, 701 F.3d 718,

725 (D.C. Cir. 2012) (citing to the standard in Laidlaw). The baseline rule is that “the voluntary

cessation of challenged conduct does not ordinarily render a case moot.” Knox v. Serv. Emps. Int’l

Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (citing City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283, 289 (1982)). Following this directive: For a case to be moot after a defendant

voluntary changes its allegedly wrongful conduct, the defendant must show its case is somehow

out of the ordinary; some event or factor must make it “absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 170; see also id. (“[T]he

standard for determining whether a case has been mooted by the defendant’s voluntary conduct is

stringent.”).



                                                 12
       The somewhat recent case of Sharp v. Rosa Mexicano, D.C. provides an illustrative

example of how a defendant may satisfy this heavy burden. 496 F. Supp. 2d 93 (D.D.C. 2007). In

Sharp, a disabled restaurant customer brought an action against the restaurant’s owner, alleging

that the men’s restroom “contain[ed] several barriers to wheelchair access that fail[ed] to meet the

minimum ADA requirements.” Id. at 95. Although the parties disputed the condition of the

bathroom at the time the complaint was filed, the defendant later moved to dismiss on the theory

that the restroom basin at issue was “presently in compliance with the ADA.” Id. at 96 (emphasis

in original). Indeed, when that motion was filed, plaintiff and defendant were in agreement that a

wheelchair-accessible sink then existed “in a private, handicap-accessible stall in the men’s

restroom.” Id. at 98. The Court ruled that after the defendant remedied this deficiency, no case or

controversy existed (plaintiff sought only prospective relief) and therefore found plaintiff’s claim

to be moot. Id. at 95.

       In conducting its voluntary cessation analysis, the Court in Sharp found the “allegedly

unlawful conduct could not have been reasonably be expected to recur” because “structural

modifications are unlikely to be altered in the future.” Id. at 99. Indeed, the defendant installed a

“fixture within the restaurant.” Id. At that point, to remove the fixture and return to a state of non-

compliance would be more costly than to simply maintain the status quo and comply with the

ADA. Recurrence, therefore, could not be reasonably expected.

       Although the compliance measures presented in Sharp were inherently durable, there is no

firm rule that efforts to achieve compliance must be obviously fixed or permanent to demonstrate

it is absolutely clear there could be no reasonable expectation the conduct will recur. See Friends

of the Earth Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 198 (2000) (“[The defendant’s]

earlier achievement of substantial compliance with its permit requirements, might moot the case,



                                                  13
but—we once more reiterate—only if [the substantial compliance] made it absolutely clear that

[the defendant’s] permit violations could not reasonably be expected to recur.”). But see id. at 190

(“[W]e noted that a citywide moratorium on police chokeholds—an action that surely diminished

the already slim likelihood that any particular individual would be choked by police—would not

have mooted an otherwise valid claim for injunctive relief, because the moratorium by its terms

was not permanent.” (emphasis added)).

       Indeed, whether or not defendants have met their burden is a factual inquiry, and courts

have found that under certain circumstances, a broad change in policy or a period of sustained

compliance may go a long way to assist the defendant in meeting its heavy burden. See Colo. River

Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 212 (D.D.C. 2012) (finding that a challenge to a

legal memorandum was mooted after the defendants withdrew the memorandum and “announced

their intention to develop a new policy in accordance with the [Endangered Species Act] and

initiated a transparent rulemaking process”); D.C. Prof’l Taxicab Drivers Assoc. v. District of

Columbia, 880 F. Supp. 2d 67, 75 (D.D.C. 2012) (finding a claim moot after the District of

Columbia Taxicab Commission issued a rule providing the “same relief that the plaintiffs [sought]

in the Amended Complaint” and demonstrated there was no reasonable expectation the rule would

be retracted). But see Lake Pilots Ass’n v. U.S. Coast Guard, 257 F. Supp. 2d 148, 157 (D.D.C.

2003) (finding that defendants had not shown that it is absolutely clear there could be no reasonable

expectation that the alleged violation would recur even after the defendants “conceded that they

erred” and issued a temporary final rule designed to resolve plaintiffs’ claims); see also Steinberg

v. District of Columbia, 901 F. Supp. 2d 63, 70 (D.D.C 2012) (finding that a letter reinstating the

plaintiff did not moot plaintiff’s request for injunctive relief in part because “the letter leaves

several aspects of defendants’ compliance open and contingent on [plaintiff]’s future actions”).



                                                 14
       In conducting this factual inquiry, the Court finds that in spite of defendants’ recent period

of sustained compliance, it is not absolutely clear there could be no reasonable expectation of

recurrence. The Court comes to this conclusion by considering that defendants began to comply

with the Rehabilitation Act because of this litigation; have a long history of violations and an

ongoing conflict with the plaintiffs; and have consistently and completely contested liability under

the Rehabilitation Act. To counter this general finding, defendants make two basic arguments: (i)

five years of compliance with the Rehabilitation Act make it exceedingly unlikely that the

defendants will once again engage in bad faith or gross mismanagement and (ii) the complexity of

their special education systems provides additional protection for plaintiffs. To the degree these

arguments are valid, they do not overcome the other, more commanding considerations that lead

to the Court to believe that it is not absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.

       First, the Court finds that the District came into compliance with the Rehabilitation Act in

direct response to this litigation, a finding makes it more difficult for the District to demonstrate

recurrence is unlikely. Whether the defendants’ cessation was timed in anticipation of a lawsuit or

motivated by a genuine change of heart is relevant to the voluntary cessation analysis. The former

can show either that a defendant has not actually ceased their objectionable conduct, thus

eliminating mootness concerns, see Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 865 (10th Cir.

2001) (“When defendants are shown to have settled into a continuing practice . . . courts will not

assume that it has been abandoned without clear proof. It is the duty of the courts to beware of

efforts to defeat injunctive relief by protestations of repentance and reform, especially when

abandonment seems timed to anticipate suit, and there is probability of resumption.” (quoting

United States v. W.T. Grant Co., 73 S. Ct. 894, 897 n. 5 (1953))), or that the conduct could be



                                                 15
reasonably expected to start again. See Young v. D.C. Hous. Auth., 31 F. Supp. 3d 90, 98 (D.D.C.

2014) (finding that defendant’s failure to engage in any remedial activity “prior to the

commencement of litigation” contributed to a finding that it did not meet its “heavy burden of

showing that the challenged conduct could not reasonably be expected to recur”).

        Plaintiffs offer several pages of evidence to demonstrate defendants ceased their allegedly

unlawful behavior in direct response to this lawsuit. See Pls.’ Opp’n to Defs.’ Mot. to Dismiss 7–

9, ECF No. 516. For example, they reference an email from the Mayor’s office to a staff member

at the Office of State Superintendent of Education (“OSSE”) in 2007 stating, “Relating to the class

action lawsuit on Child Find, I am forwarding to you the draft Child Find policy manual currently

being review for submission to the Court as part of the District’s response to the suit.” Id. at 7

(citing Pls.’ Trial Ex. 113, p. 1). A separate email in 2008 from staff at DC Public Schools to OSSE

stated, similarly, “Location. This is currently the most critical issue since most of our planning for

DL hinges on securing a good location for the CARE Center.” Id. (citing Pls.’ Trial Ex. 115, p. 1).

Yet another states, “I had hoped to be operational in a new Child Find site this month so as to

demonstrate to the Court that we are well on our way to totally re-engineering our Child Find.” Id.

(citing Pls.’ Trial Ex. 116, p. 1).

        The evidence goes beyond emails, however. For example, plaintiffs cite to the District’s

Family Care manual, which states “The discovery period of the lawsuit ended in November 2009,

so it was crucial that DCPS have demonstrated its commitment to increase the identification rate,

increase the timeliness of evaluations, and increase placement options for families by that

deadline.” Id. at 8 (citing Pl. Trial Ex. 72, p. DL2014 204). In light of these statements and the

District’s failure to meaningfully address them in their briefing, the Court finds that the District




                                                 16
voluntarily changed its conduct during this litigation in an effort to escape liability, a finding that,

as discussed, makes it more difficult for the defendants to rebut the presumptions against them.

       In addition to ceasing its allegedly wrongful behavior as a direct response to this litigation,

the District’s period of prior non-compliance with the Rehabilitation Act spans over a decade. Of

course, this long period of uninterrupted violations weighs heavily against the defendants. See In

re Center for Auto Safety, 793 F.2d 1346, 1352–53 (D.C. Cir. 1986) (finding that “chronic”

violations over a period of seven years contributed to the Circuit’s finding that there was “some

cognizable danger of recurrent violation”); Young v. D.C. Hous. Auth., 31 F Supp. 3d 90, 98

(D.D.C. 2014) (“Plaintiffs make a strong argument that DCHA’s lengthy history of failing to

provide effective communications to hearing impaired individuals . . . undercuts any reasonable

expectation that the violation will not reoccur.”). Indeed, the Court has previously found that up

until five years ago, the defendant had “demonstrated bad faith or gross misjudgment, by

knowingly failing to provide a FAPE to eligible preschool-age children and by failing to bring

themselves into compliance with their Child Find obligations.” See Mem. Op. & Findings of Fact

and Conclusions of Law ¶ 131, ECF No. 294. Somewhat strikingly, evidence of these violations

stretch back to at least 1997, when “OSEP began to inform the DCPS of its ongoing failure to

identify, locate, and provide Part B services to eligible children ages three through five.” Id. at ¶

52.

       Lastly, the District’s decision to contest liability also makes it more difficult to show there

could be no reasonable expectation of recurrence. See Knox v. Serv. Emps. Int’l Union, Local 1000,

132 S. Ct. 2277, 2287 (2012) (“[S]ince the union continues to defend the legality of the Political

Fight–Back fee, it is not clear why the union would necessarily refrain from collecting similar fees

in the future.”); In re Center for Auto Safety, 793 F.2d 1346, 1353 (D.C. Cir. 1986) (“This refusal



                                                  17
to admit the illegality of its past conduct heightens the probability that the agency will once again

fail to meet statutory deadlines in the future.”). For the ten years that these claims have been

pending, the District has fought liability under the Rehabilitation for the period before March 22,

2010 time and again. Indeed, the defendant argued against a finding of liability twice at the

summary judgment phase, see Defs.’ Mem. in Opp’n to Pls.’ Partial Mot. for Summ. J. 19, Apr.

19, 2010, ECF No. 180 (“Because Plaintiffs have not shown, and cannot show, that the District

has violated the IDEA, they clearly cannot meet the higher burden of proof applicable to their §

504 claim.”); Mem. in Opp’n to Pls.’ Mot. for Partial Summ. J. and J. Pursuant to Rule 52(c) 12,

Nov. 21, 2014, ECF No. 424 (“Plaintiffs’ request for summary judgment for the period of July 21,

2005 to December 31, 2007, must be denied, designed [sic] as it is for a finding of liability that

simply does not fit Plaintiffs’ individual subclass claims.”), and once at trial, see Defs.’ Proposed

Findings of Fact and Conclusions of Law 38-39, June 3, 2011, ECF No. 254 (“Because the text of

Section 504 emphasizes discrimination ‘solely by reason of [an individual’s] disability,’ a plaintiff

must show more than simple negligence or incompetence. The instant class of plaintiffs has made

no such showing.”).

       Looking back to the baseline standard that “voluntary cessation of challenged conduct does

not ordinarily render a case moot,” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277,

2287 (2012), it is important to note how the present case differs from Sharp, a case where it was

in fact absolutely clear there could be no reasonable expectation of recurrence. 496 F. Supp. 2d 93

(D.D.C. 2007). First, in Sharp and unlike in the present case, the Court did not find that the fixture

was installed because of the plaintiffs’ legal action. In fact, the Sharp defendant maintained that

the fixture was installed before the legal action even began, and the Court never ruled on the issue.

496 F. Supp. 2d at 98. In contrast and as discussed, the Court found in this case that the District’s



                                                 18
various emails and materials showed that its improvements were a direct result of this litigation.

This finding is consistent with the Court’s prior, though now-vacated ruling, Mem. Op. & Findings

of Fact and Conclusion of Law ¶ 140, ECF No. 294 (“This Court finds that reforms to the District

of Columbia’s Child Find-related policies and procedures, including the restructuring and

reorganization of the Early Stages Center, occurred during and because of this lawsuit.”), and

favors a finding that conduct cannot be reasonably expected to recur.

       Second, the restaurant in Sharp was alleged to have violated the ADA in a single instance.

In our case, violations of the Rehabilitation Act are not alleged as a single infraction or isolated

occurrence. Quite the opposite: Plaintiffs allege (and the Court has previously found) pervasive

and systemic “gross mismanagement” for a long and continuous period of time, the evidence of

which dates back to the 1990s. See Mem. Op. & Findings of Fact and Conclusions of Law ¶ 52,

ECF No. 294.

       Third, unlike in Sharp, there is no fixed guarantee that could objectively be seen to prevent

backslide. That is, in the present matter, there is nothing inherently permanent that would make

compliance less costly or burdensome now than it was in the past when non-compliance was

widespread. Indeed, in Sharp, it would have been more expensive for the defendant to uninstall

the handicap accessible fixtures and regress into a state of non-compliance with the ADA than it

would have been to simply comply with the law. In our case, although the District has implemented

policies to identify and educate disabled children, there is nothing obviously permanent about these

programs, a finding which weighs against the defendants. See Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[W]e noted that a citywide moratorium on

police chokeholds—an action that surely diminished the already slim likelihood that any particular

individual would be choked by police—would not have mooted an otherwise valid claim for



                                                19
injunctive relief, because the moratorium by its terms was not permanent.” (emphasis added)); see

also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (finding the voluntary

cessation exception applied after a city repealed an allegedly unconstitutionally vague statute

because the “city’s repeal of the objectionable language would not preclude it from reenacting

precisely the same provision if the District Court’s judgment were vacated”). Unlike in Sharp, if

defendants are successful in the future, it will be due to the hard work and planning of city’s

employees, not because their solutions are inherently permanent or compliance is somehow less

burdensome now than it was in the past.1

        The defendants offer two main arguments to support their position that there can be no

reasonable expectation of recurrence, neither of which is entirely persuasive. First, defendants

point to the strides that the District has made in developing Child Find systems designed to fully

comply with its obligations to identify and provide a FAPE to disabled children. See Mem. of

Points and Authorities in Supp. of Defs.’ Mot. to Dismiss 3 (“The complex safety mechanisms

integrated into this system and the people whose daily efforts bring it to life will not quit

working.”); id. at 6 (“The District’s data is accurate, and its business rules for reporting are aligned

with federal law.” (citing Noel Test. at ¶¶ 4–6; Maisterra Test.at ¶¶ 14–15)).

        To support this argument, the defendants draw out differences between the IDEA and the

Rehabilitation Act to suggest that under the Rehabilitation Act’s “bad faith or gross

mismanagement,” standard recurrence is extremely unlikely. See Defs.’ Reply 1. Defendants

essentially claim that their current efforts to comply with the IDEA go well beyond the baseline




1
  This is as true for the Rehabilitation Act as it is for the IDEA. Of course, for the purposes of this litigation,
the IDEA’s standards are higher, but there is substantial overlap between the two statutes. See Mark H. v.
Lemahieu, 513 F.3d 922, 925 (9th Cir. 2008) (describing the Rehabilitation Act’s implementing regulations
that require states receiving certain public funds to provide all disabled children with a FAPE).

                                                        20
requirements of the Rehabilitation Act, and as such, there can be no reasonable expectation that

Rehabilitation Act violations will recur. As stated, for the purposes of this litigation, section 504

of the Rehabilitation Act requires that plaintiffs “show that ‘something more than a mere failure

to provide the ‘free and appropriate education’ required by the [IDEA]’ has occurred.” Mem. Op.

3–4, ECF No. 55 (quoting Walker v. District of Columbia, 157 F. Supp. 2d 11, 35 (D.D.C. 2011)).

Indeed, plaintiffs must demonstrate that defendants acted in bad faith or engaged in gross

mismanagement, id. at 4, something the defendants have not done in at least five years.

       The Court agrees that defendants’ five-year span of sustained, if not robust, compliance

may indeed support a finding that recurrence is unlikely; however, it is insufficient to outweigh

the factors that pull the Court in the opposite direction. Additionally, in making this argument,

defendants do not properly consider that simply making good faith efforts to identify and educate

all disabled children in the District still takes great amounts of work, planning, and coordination.

Even accepting the premise that the District is currently doing far more than is required under the

Rehabilitation Act, sustained compliance with the Rehabilitation Act nevertheless requires

continued, deliberate commitment. In contrast to D.C. Professional Taxicab Drivers Assoc., where

recurrence would have taken place only if the defendant illegally and affirmatively retracted a final

rule, 880 F. Supp. 2d 67, 75 (D.D.C. 2012), violations under the Rehabilitation Act can and often

do occur through gross indifference or inaction. In the court’s opinion, credible commitment is

generally more difficult to demonstrate when a law requires the defendant to affirmatively take

certain actions, rather than to refrain from engaging in proscribed behavior.

       And importantly, there is nothing inherently durable about the changes the District made

to its special education policies that would suggest recurrence is unlikely. Unlike a case such as

Sharp, there is no easy solution or one-off investment that the District can make to ensure it



                                                 21
satisfies the Rehabilitation Act for the years to come. Although it is only in the “rarest of cases”

that a plaintiff will “be able to prove that a school system’s conduct . . . warrant[s] such a unique

remedy [under the Rehabilitation Act] not otherwise provided for by the IDEA itself . . .” Mem.

Op. 40, ECF No. 444 (citing Walker v. District of Columbia, 157 F. Supp. 2d 11, 36 (D.D.C.

2001)), that fact alone does block the application of the voluntary cessation exception where a long

history of Rehabilitation Act violations makes it otherwise appropriate.

        Lastly, it is important to emphasize that if a defendant begins to comply with a law only

after a plaintiff has brought an enforcement action, then that compliance alone is typically

insufficient to block the application of the voluntary cessation exception. Knox v. Serv. Emps. Int’l

Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (“[T]he voluntary cessation of challenged

conduct does not ordinarily render a case moot.”). On the contrary: Such a finding should in many

cases trigger analysis under the voluntary cessation exception to ensure that a party has not taken

action in an effort to divest the Court of jurisdiction and “be free to return to [its] old ways.” Sharp

v. Rosa Mexicano, D.C., 496 F. Supp. 2d 93, 98–99 (D.D.C. 2007) (quoting Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000)). After over ten years of constant

violations, pointing to the existence of compliance policies that were created and implemented

during this litigation does not meaningfully contribute to a finding that future violations are

unlikely to recur.2




2
  Of course, courts must conduct a case-by-case analysis. See D.C. Prof’l Taxicab Drivers Ass’n v. District
of Columbia, 880 F. Supp. 2d 67, 75-76 (D.D.C. 2012) (finding that a “broad policy change” and “recently
adopted formal regulations” made it clear there was no reasonable expectation of recurrence, but noting
other cases where the “voluntary cessation of challenged conditions by a government actor” did not moot
a case). As discussed, the Court has analyzed the specific facts of this case and finds that the voluntary
cessation exception does apply because defendants changed their behavior in response to this lawsuit, were
in a state of non-compliance for over a decade before this lawsuit was initiated, and have without exception
contested liability.

                                                    22
        In addition to recent compliance efforts, defendants argue that the complexity of their

special education systems provides additional protection for plaintiffs. Because the current

educational policies and systems “would require multiple intentional efforts to dismantle,” there

is less of a chance that violations would recur, i.e., that those systems would be grossly

mismanaged. Defs.’ Reply 2–3. The Court disagrees, and finds that the scope of the challenge and

complexity of the District’s education systems may in fact increase the possibility of recurrence.

Indeed, in many ways, the complexity of the District’s systems simply reflects the somewhat

daunting nature of the obligations they face. But in any event, the more complex a system is, the

more effort and planning it takes to administer properly, which may in turn present a greater

opportunity for future mismanagement—or for the purposes of the Rehabilitation Act, gross

mismanagement. In short, the complexity of the present systems does not contribute to a finding

that recurrence is less likely because it is not clear how such complexity reduces the likelihood of

gross mismanagement or other future violations.3

        In sum, defendants argue that after the Court ruled for them on summary judgment with

respect to plaintiffs’ Rehabilitation Act claim for the period from 2010 to the present, there is no

longer any actual ongoing controversy under the Rehabilitation Act. But to the extent there is no

longer an ongoing controversy, it is only because the defendants voluntarily ceased the conduct

that gave rise to the controversy in the first place. Under such circumstances, they bear a heavy

burden to show “(1) there is no reasonable expectation that the alleged violation will recur and (2)

interim relief or events have completely and irrevocably eradicated the effects of the alleged




3
 To be clear, identifying all disabled children in the District and providing them with a free and appropriate
education is a demanding task that does not lend itself to a simple solution. Although the law’s requirements
may call for the implementation of complex systems, the Court does not see how that complexity
necessarily reduces the likelihood of recurrence.

                                                     23
violation.” Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979) For the reasons stated in this opinion,

they have failed to do so.

       Lastly, the second prong of the voluntary cessation standard—that “interim relief or events

have completely and irrevocably eradicated the effects of the alleged violation”—merits brief

discussion. Cnty. of L.A. v. Davis, 440 U.S. 625, 631 (1979). Because the Court has already found

that the defendants have not shown it is absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur, the Court need not and will not determine whether all of the

effects are eviscerated. It is important to note, however, that these prongs are conjunctive, meaning

that if the defendant has altered its behavior during litigation in a way that extinguishes the live

controversy, it must satisfy both conditions to block the application of the voluntary cessation

exception. See, e.g., D.C. Prof’l Taxicab Drivers Ass’n v. District of Columbia, 880 F. Supp. 2d

67, 76 (D.D.C. 2012) (discussing these two requirements separately); Lake Pilots Ass’n v. U.S.

Coast Guard, 257 F. Supp. 2d 148, 158 (D.D.C. 2003) (same).

       B. Effective remedy

       After ruling that the voluntary cessation exception applies, the Court finds that the

plaintiffs’ requested declaratory judgment would provide some form of effective relief. As

discussed, a case becomes moot if “intervening events make it impossible to grant the prevailing

party effective relief.” Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008). For the purposes

of this analysis, “‘any effectual relief whatever’ is expansively defined.” Ctr. for Food Safety v.

Salazar, 900 F. Supp. 2d 1, 5 (D.D.C. 2012) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277,

287 (2000)). Although a court may not be able “‘to return the parties to the status quo ante,’ a

court’s ability to ‘effectuate a partial remedy’ is ‘sufficient to prevent [a] case from mootness, even




                                                  24
if the party cannot ‘prove that the requested relief is certain to alleviate their injury.’” Id. (emphasis

in original) (citing Church of Scientology of Cal. v. United States, 506 U.S. 9, 12–13 (1992)).

        In arguing that any declaratory judgment the Court could issue would be ineffective, the

defendants focus on the Court’s previous summary judgment ruling that the District has complied

with the Rehabilitation Act beginning March 22, 2010. Essentially, the defendant argue that after

the Court “resolved liability in Defendants’ favor for March 22, 2010 to the present, a declaratory

judgment based on the earlier period would have no operative effect on the parties’ rights or

relations.” Defs.’ Mot. to Dismiss 1, ECF No. 510. In other words, they argue that the proposed

remedy would be ineffectual.

        This argument, however, runs counter the Court’s previous determination that the

defendants have not shown that there could be no reasonable expectation the alleged wrongdoing

will recur. It bears repeating that in City of Erie v. Pap’s A.M., the Supreme Court explained how

the requirement for effectual relief fits into the mootness doctrine and is intertwined with the

voluntary cessation exception:

        The underlying concern is that, when the challenged conduct ceases such that there
        is no reasonable expectation that the wrong will be repeated, then it becomes
        impossible for the court to grant any effectual relief whatever to the prevailing
        party. In that case, any opinion as to the legality of the challenged action would be
        advisory.

529 U.S. 277, 287 (2000) (emphasis added) (quotations and citations omitted).

        This Supreme Court precedent makes it clear that when, as here, defendants argue that a

period of compliance would render requested relief ineffective, defendants must show “there is no

reasonable expectation that the wrong will be repeated” in order to prevail. For the reasons already

discussed, defendants have failed to meet that burden.




                                                   25
       In determining that the defendants’ recent compliance with the Rehabilitation Act does not

deprive the court of jurisdiction, the Court also finds that a declaratory judgment would otherwise

provide plaintiffs with an effective form of relief. Plaintiffs argue that the declaratory relief they

request will “provide the basis for renewed litigation in this case or a new case,” Pls.’ Opp’n to

Defs.’ Mot. to Dismiss 23, and the Court agrees. Of course, to obtain declaratory relief, it is

insufficient to show only past injury. See, e.g., San Diego Cnty. Gun Rights Comm. v. Reno, 98

F.3d 1121, 1126 (9th Cir. 1996). Indeed, as the Supreme Court has explained, courts “are not in

the business of pronouncing that past actions which have no demonstrable continuing effect were

right or wrong.” Spencer v. Kemna, 523 U.S. 1, 17 (1998). With that in mind, this Court

acknowledges that in many cases, the argument that a declaratory judgement would provide

effective relief by setting the stage for future litigation would be unpersuasive. That would

especially be so if liability under the law were easy to demonstrate, a defendant committed a single

unlawful act, or, most critically, if recurrence were generally shown to be unlikely.

       But that is not the case in the present matter. As plaintiffs suggest, a history of unlawful

behavior can be an important factor for a court to consider as it exercises its broad discretion to

remedy violations of the Rehabilitation Act. See Pls.’ Opp’n to Defs.’ Mot. to Dismiss 23; Pa.

Prot. & Advocacy, Inc. v. Pa. Dept. of Public Welfare, 403 F.3d 374, 380 n.5 (3rd Cir. 2005)

(stating that district courts have “broad discretion in crafting an appropriate remedy when liability

[under section 504] is established”). Partially for that reason, other courts have considered the

complexity of a law or difficulty in establishing liability when determining whether or not to issue

a declaratory judgment. See, e.g., Padres Hacia Una Vida Mejor v. Jackson, 922 F. Supp. 2d 1057,

1070 (E.D. Cal. 2013) (finding that a declaratory judgment would not provide any effective relief

in part because in potential future litigation, “[d]efendants will not be able to contest that it took



                                                 26
an astounding 17 years to meet the 180 day deadline in Plaintiffs’ prior Title VI complaint,

irrespective of any declaration”). Unlike a legal violation that can be demonstrated by a single

infraction (e.g., a missed deadline), the Rehabilitation Act’s gross mismanagement or bad faith

standard is imprecise and demanding. It centers on a subjective inquiry, which can be difficult to

prove and easy for a defendant to contest. Requiring plaintiffs to prove previous Rehabilitation

Act violations in a potential future lawsuit would demand a serious investment of time and

resources, not to mention, place a strain the judicial system. Because a court may consider previous

violations when shaping a remedy in a potential future lawsuit and because Rehabilitation Act

violations are especially difficult to prove, a declaratory judgment stating that defendants have

violated the Rehabilitation Act would provide the plaintiffs with some form of effectual relief.

       This remedy is all the more valuable in light of the longstanding relationship between these

parties and the District’s extensive history of failing to properly identify and appropriately educate

disabled students. Because this lawsuit was originally filed in 2005 and has been active ever since,

it is safe to say that “[t]he parties are involved in an ongoing relationship that may present the

opportunity for future disagreement.” Halkin v. Helms, 690 F.2d 977, 1007 (D.C. Cir. 1982). And

as the D.C. Circuit has noted, such a finding can help to justify adjudication and the issuance of a

declaratory judgment. Id.

       Additionally, these considerations relate to the most critical factor in the Court’s analysis,

that the defendants are unable to show there could be no reasonable expectation that the wrongful

conduct will recur. In arguing against the effectiveness of a declaratory judgment, defendants

instead emphasize that the plaintiffs’ core theory raises ripeness concerns and is therefore invalid.

The defendants argue that the notion a declaratory judgment would provide effective relief by

setting the stage for potential future litigation “rests upon contingent future events that may not



                                                 27
occur as anticipated, or indeed may not occur at all.” Defs.’ Mot. 10 (citing Shaffer v. Def.

Intelligence Agency, 601 F. Supp. 2d 16, 23 (D.D.C. 2009)). Although it is true that future litigation

may never occur, defendants cite to the incorrect standard. The proper standard centers on whether

there could be no reasonable expectation that the wrong will be repeated. City of Erie, 529 U.S. at

287.

        Importantly, a declaratory judgment in this case would adjudicate facts that have already

occurred. Although the full impact of declaratory judgment rests on contingent future events, that

alone does not mean that the remedy provides no “effectual relief whatever.” Id. (emphasis added).

In this case, the Court is declaring that past actions were unlawful, and in doing so, the Court need

only find that the declaration provides some form of effectual relief; it need not determine the full

extent of that relief. If, on the other hand, the Court were to declare that future events were

unlawful, that may present ripeness issues, as defendants argue. Defs.’ Mot. to Dismiss 8.

        As discussed, in a case such as this, where the challenged conduct has ceased during the

litigation, courts will be unable to grant “any effectual relief whatever” when “there is no

reasonable expectation that the wrong will be repeated.” Id. (emphasis added). If the defendants

had shown there was no reasonable expectation of recurrence, the declaratory judgment would

become ineffective—it could not be used as a tool in any future litigation because future litigation

could not be reasonably expected to occur. As stated, however, there has been no such showing in

this case. In sum, the defendants’ failure to satisfy its burden of showing that recurrence could not

be reasonably expected is critical in the Court’s determination that a declaratory judgment

represents effective relief.




                                                 28
