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

                                 MEMORANDUM & ORDER

       Before the Court are defendants’ Motion [307] for Reconsideration and plaintiffs’ Motion

[321] for Leave to File a Sur-Reply Brief to Defendants’ Reply in Further Support of Motion for

Reconsideration. For the reasons stated below, and in consideration of the entire record in this

case and the applicable law, the Court will grant plaintiffs’ Motion [321] for Leave to File a Sur-

Reply and will grant in part and deny in part defendants’ Motion [307] for Reconsideration.

I.     BACKGROUND

       In November 2011, this Court entered findings of fact and conclusions of law in this class

action case, which concerns defendants’ compliance with their obligations, under federal and

local law, to provide special education and related services to preschool-aged children in the

District of Columbia. See DL v. District of Columbia, No. 05-1437, 2011 WL 5555877, *1

(D.D.C. Nov. 16, 2011). In that opinion, the Court extended its holdings from an August 2010

opinion on the parties’ motions for summary judgment, see DL v. District of Columbia, 730 F.

Supp. 2d 84 (D.D.C. 2010), and found defendants liable for violations of the Individuals with

Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act, and related

provisions of local law from 2008 until April 6, 2011. See DL, 2011 WL 5555877, at *15–20.

The Court also entered a permanent injunction, requiring defendants, inter alia, to enact various
reforms, to meet certain performance benchmarks, and to comply with certain reporting

requirements. Id. at *21–26.

       In December 2011, defendants appealed the Court’s Findings of Fact and Conclusions of

Law, as well as other orders, to the U.S. Court of Appeals for the District of Columbia Circuit.

Defs.’ Notice of Appeal [304] 1, Dec. 15, 2011.            Defendants then filed a Motion for

Reconsideration in this Court pursuant to Federal Rule of Civil Procedure 54(b), Defs.’ Mot.

Reconsideration [307] 1, Jan. 12, 2012, while also persuading the Court of Appeals to hold the

appeal in abeyance pending this Court’s resolution of the post-judgment Motion. See Order of

USCA [319] 1, Mar. 20, 2012. Defendants acknowledge in their Motion some uncertainty, given

the pending appeal, concerning whether this Court has jurisdiction.             See Defs.’ Mot.

Reconsideration [307] 1 n.1.

       Meanwhile, plaintiffs, engaged in negotiations with defendants over proposed

modifications to the Court’s injunction, requested a delay in the Court’s resolution of defendants’

Motion for Reconsideration while those negotiations proceeded. See, e.g., Pls.’ Praecipe [320] 1,

Apr. 5, 2012. Finally, on April 19, 2012, plaintiffs filed a Motion [321] for Leave to File a Sur-

Reply Brief, attaching a Sur-Reply that would inform the Court of the issues resolved by the

parties’ negotiations while addressing arguments raised by defendants for the first time in their

Reply to plaintiffs’ Opposition to defendants’ Motion for Reconsideration. See Pls.’ Mot. Leave

[321] 2, Apr. 19, 2012.        Since plaintiffs’ attached Sur-Reply addresses issues raised by

defendants for the first time in their Reply, and because the Court finds that the Sur-Reply is

helpful to the Court’s resolution of defendants’ Motion for Reconsideration, the Court will grant

plaintiffs’ Motion for Leave to File a Sur-Reply. See Ben-Kotel v. Howard Univ., 319 F.3d 532,

536 (D.C. Cir. 2003).



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II.    THIS COURT’S JURISDICTION TO MODIFY THE NOVEMBER 16,
       2011 FINAL ORDER
       The general rule is that “filing a notice of appeal . . . confers jurisdiction on the court of

appeals and divests the district court of its control over those aspects of the case involved in the

appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Jurisdiction is

not regained until the court of appeals issues its mandate. U.S. v. DeFries, 129 F.3d 1293, 1302

(D.C. Cir. 1997). However, the Federal Rules state that “[w]hile an appeal is pending from an

interlocutory order or final judgment that grants . . . an injunction, the court may suspend,

modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing

party’s rights.” Fed. R. Civ. P. 62(c); see also Ayuda, Inc. v. Thornburgh, 919 F.2d 153, 47

(D.C. Cir. 1990) (Wald, J., concurring in part and dissenting in part). Rule 62(c) “codifies the

inherent power of a court to preserve the status quo where in its sound discretion, the court

deems the circumstances so justify.” Christian Science Reading Room v. City & Cty. of San

Francisco, 784 F.2d 1010, 1017 (9th Cir. 1986) (citations omitted). It does not, however,

“restore jurisdiction to the district court to adjudicate anew the merits of the case.” McClatchy

Newspapers v. Cent. Valley Typographical Union No. 46, Int’l Typographical Union, 686 F.2d

731, 734 (9th Cir. 1982).

III.   RECONSIDERATION UNDER RULE 54(b)

       Rule 54(b) of the Federal Rules of Civil Procedure states that “any order . . . that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . .

may be revised at any time before the entry of a judgment adjudicating all the claims and all the

parties’ rights and liabilities.” This rule authorizes a court to revise its interlocutory decisions

any time prior to the entry of a final judgment. S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 13

(D.D.C. 2010). Relief upon reconsideration under Rule 54(b) is available “as justice requires.”


                                                  3
Hoffman v. District of Columbia, 681 F. Supp. 2d 86, 90 (D.D.C. 2010). Justice may require

reconsideration when (1) “there was a patent misunderstanding of the parties,” (2) “where a

decision was made that exceeded the issues presented,” (3) “where a court failed to consider

controlling law,” or (4) “where a significant change in the law occurred after the decision was

rendered.” Pueschel v. Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d 82, 85 (D.D.C.

2009).

IV.      ANALYSIS

         Defendants’ Motion [307] for Reconsideration sought the following modifications of the

Court’s November 16, 2011 Final Order (ECF No. 295):

         (1) Modifying paragraph A.1, which requires defendants to ensure that at least 8.5
             percent of three- to five-year-olds are “enrolled” in special education and
             related services under IDEA Part B, to require defendants to ensure that such
             children are “identified as eligible,” Defs.’ Mot. Reconsideration [307] 1; 1
         (2) Modifying paragraph B.10, which requires defendants to assign each family
             served by Early Stages a “case manager” throughout the screening,
             evaluation, eligibility determination, and Individualized Education Plan
             (“IEP”) process, to require defendants to assign a case manager only for the
             evaluation, eligibility determination, and IEP process, id. at 1–2;
         (3) Modifying paragraph B.12, which requires defendants to open a satellite
             location for Early Stages in Southeast, D.C., to require defendants to open the
             location “East of the Anacostia River,” id. at 2; and
         (4) Modifying paragraph B.16, which requires defendants to accept all children
             exiting IDEA Part C with identified disabilities or developmental delays as
             “presumptively eligible” for Part B, to remove the “presumptively eligible”
             requirement while adding alternative language.
Id. at 2.

         Over the course of briefing, defendants have dropped their request for reconsideration of

certain issues, while plaintiffs have consented to certain other modifications.             Specifically,

defendants have withdrawn their request to modify paragraph A.1 to refer to “eligibility” rather

1
 Defendants also sought revisions of the interim goals under subparagraphs A.1(a) and (b). See Defs.’ Mot.
Reconsideration [307] 6–10.
                                                    4
than “enrollment.” Defs.’ Reply [317] 2. The parties agree that paragraphs B.10 and B.12

should be modified in accordance with defendants’ request. See Pls.’ Opposition [314] 1, Feb.

17, 2012; see also Defs.’ Reply [317] 1. They also agree that subparagraph A.1(b) should be

modified to reduce defendants’ required percentage increase in IDEA Part B enrollment from 1

to ½ percent per year.        Pls.’ Sur-Reply [321-1] 6, Apr. 19, 2012.           Finally, plaintiffs and

defendants have agreed to a definition of the phrase “presumptive eligibility” in paragraph B.16.

Id. at 6–7.

        In sum, the parties have reached agreement on every one of defendants’ proposed

modifications to the November 16, 2011 Final Order, with a single exception. See Pls.’ Sur-

Reply [321-1] 1. As to those modifications on which the parties agree, the Court finds that it has

jurisdiction to make these modifications pursuant to Rule 62(c) of the Federal Rules of Civil

Procedure. None of these modifications would materially alter the status quo pending appeal,

nor do they involve readjudication of the merits of the case. Therefore, in the interests of justice,

and in light of the parties’ agreement on these points, the Court will exercise its discretion and

modify the Final Order as follows:

        (1) Paragraph A.1(b) will be modified to state:
              Increase the percentage of preschool children in the District of Columbia
              enrolled in Part B by .5 percent in the first full year, starting on the first of the
              next month after the date of this Order, and an additional .5 percent each
              subsequent year.
        (2) Paragraph B.10 will be modified to state:
              Defendants shall assign each family served by Early Stages a single staff
              member to act as its “case manager” throughout the evaluation, eligibility
              determination, and IEP process to ensure that families have the necessary
              information to understand the purposes and functions of all aspects of the
              Early Stages process and procedures.
        (3) Paragraph B.12 will be modified to state:



                                                     5
           Defendants shall open a satellite location for Early Stages east of the
           Anacostia River that is able to perform the same functions of the central
           location in order to better serve an area that has been recognized as
           underserved, high-risk, and a potential source of a large number of referrals.
       (4) Paragraph B.16 will be modified to state:
           Defendants shall accept all children exiting Part C who have identified
           disabilities or significant developmental delays as presumptively eligible for
           Part B in order to ensure that they do not experience a disruption in services.
           Presumptively eligible for preschool education means that the information
           available at the time of the referral of a child—when he or she is nearly three
           years old and is about to transition from Part C to Part B—shall be presumed
           to be sufficient to make a decision about the child’s eligibility for Part B
           special education services, unless indicated otherwise by the Part B IEP Team.
           The Part B IEP Team may find, after reviewing the information available at
           the time of the referral of the child, that additional data is needed in order to
           make an eligibility determination. If the Part B IEP Team finds that additional
           data is needed in order to make an eligibility determination, the child may not
           begin receiving Part B services prior to an evaluation to determine the child’s
           eligibility for such services. In all cases, including where the existing data are
           sufficient and where the Part B IEP Team determines that additional data are
           needed, defendants shall ensure that the Part B eligibility determination is
           completed prior to the child’s third birthday, so that children eligible for Part
           B special education and related services experience no disruption in the
           receipt of services.
       The only remaining dispute relates to subparagraph A.1(a) of the Order, which requires

defendants, until the 8.5 percent Part B enrollment target is met, to “[i]ncrease the number of

referrals of preschool children that defendants obtain by 25 percent in the first year, . . . and an

additional 20 percent each subsequent year.” Order [295] 2.

       Defendants argue that subparagraph A.1(a)’s “singular focus on increasing referrals” is

counterproductive and “would not necessarily yield an increase in . . . children [eligible for

IDEA Part B]” because the relationship between referrals and eligibility “is not as direct as the

Court’s order presupposes . . . .” Defs.’ Reply [317] 2–3. This referral requirement will also,

defendants contend, “displace resources away from effective screenings done in conjunction with

Defendants’ community partners.” Id. at 3. Finally, defendants argue that this provision of the

Order is, at present, irrelevant because Early Stages “has implemented a new, better business
                                                 6
model where screenings, in additional to being conducted upon referral, may also be conducted

before referral by Defendants’ private and public partners.” Id. at 3. Plaintiffs counter that

defendants are asking the Court to “revisit the District’s deficient referral procedures and

policies, which were thoroughly litigated at trial by both sides.” Pls.’ Sur-Reply [321-1] 2.

Defendants had “every opportunity at trial[] to offer evidence that satisfying paragraph A.1(a)’s

numerical referral requirement would shift resources away from screenings done by community

partners,” but, plaintiffs contend, they did not offer such evidence and cannot explain why the

referral requirement will operate as a barrier to their achievement of the 8.5 percent enrollment

target. Id. at 4.

        Upon consideration of the parties’ arguments, the relevant law, and the entire record, the

Court will deny defendants’ Motion as to this issue. Defendants have not demonstrated that the

Court’s numerical referral requirement in paragraph A.1(a) is based upon a misunderstanding of

the evidence presented to the Court in the parties’ motions for summary judgment or at trial, that

the Court’s Order went beyond the issues presented, that the Court failed to consider controlling

law, or that a significant change in the law has occurred that warrants revision of this

requirement.        See Pueschel, 606 F. Supp. 2d at 85.      In sum, justice does not require

reconsideration of this provision of the Final Order. Furthermore, the Court’s decision to require

defendants, as a means of achieving its enrollment target, to demonstrate a required percentage

increase in the number of referrals each year was based upon substantial evidence in the record,

indicating both that defendants’ referral practices were inadequate and that these inadequate

practices played a substantial role in the District’s low enrollment rate. However, to the extent

that defendants believe that changed circumstances warrant a modification of this, or another,

aspect of the injunction, the proper path to proceed is for defendants, once the Court of Appeals

issues its mandate to the Court, to file a motion to modify or dissolve the injunction. At that
                                                7
time, the Court will permit limited discovery to evaluate the propriety of a modification of the

injunction’s numerical, or other, requirements.

V.        CONCLUSION

          Accordingly, it is hereby

          ORDERED that plaintiffs’ Motion [321] for Leave to File a Sur-Reply Brief to

Defendants’ Reply in Further Support of Motion for Reconsideration is GRANTED; and it is

further

          ORDERED that defendants’ Motion [307] for Reconsideration is GRANTED IN PART

AND DENIED IN PART. Specifically, defendants’ Motion is GRANTED as to the requested

modifications to paragraphs A.1(b), B.10, B.12, and B.16.        As to defendants’ request for

reconsideration of paragraph A.1(a) of the Final Order, defendants’ Motion is DENIED.

          SO ORDERED.

          Signed by Royce C. Lamberth, Chief Judge, on April 25, 2012.




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