                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                                  )
DL, et al., on behalf of themselves               )
and others similarly situated,                    )
                                                  )
               Plaintiffs,                        )
                                                  )
       v.                                         )   Civil No. 05–1437 (RCL)
                                                  )
THE DISTRICT OF COLUMBIA, et al.,                 )
                                                  )
              Defendants.                         )
                                                  )


                                  MEMORANDUM OPINION


       Pending before the Court are the plaintiffs’ Motion for Class Certification and

Reinstatement of Findings of Liability and Order Granting Relief [358]; the plaintiffs’ Motion to

Amend the First Amended Complaint [359]; and the defendants’ Motion to Dismiss for Lack of

Jurisdiction [365]. Upon consideration of these motions, the oppositions thereto, and all replies,

the Court GRANTS IN PART and DENIES IN PART the plaintiffs’ Motion for Class

Certification and Reinstatement of Findings of Liability and Order Granting Relief; GRANTS

the plaintiffs’ Motion to Amend the First Amended Complaint; and DENIES the defendants’

Motion to Dismiss for Lack of Jurisdiction.


                                         BACKGROUND
       Plaintiffs—residents of the District of Columbia and former preschool-age children with

various disabilities—filed suit in 2005, alleging that the District failed to provide them a free

appropriate public education (“FAPE”) in violation of the Individuals with Disabilities Education

Act (“IDEA” or “the Act”).
        Congress enacted the IDEA “to ensure that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and related services

designed to meet their unique needs and prepare them for further education, employment, and

independent living.” 20 U.S.C. § 1400(d)(1)(A). In exchange for federal funding, the IDEA

requires that states and the District of Columbia “establish policies and procedures to ensure . . .

that free appropriate public education [FAPE] . . . is available to disabled children.” Reid ex rel.

Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (internal quotations omitted);

see also 20 U.S.C. § 1412(a)(1)(A). Under the IDEA, “[s]chool districts may not ignore disabled

students’ needs, nor may they await parental demands before providing special instruction.”

Reid, 401 F.3d at 518. Instead, the IDEA imposes an affirmative obligation on school systems to

“ensure that all children with disabilities residing in the State ... regardless of the severity of their

disabilities, and who are in need of special education and related services, are identified, located,

and evaluated.” Id. at 519 (internal quotations omitted); § 1412(a)(3)(A). The District’s laws

implementing the IDEA require that once a potential candidate for special education services is

identified, the District must conduct an initial evaluation and make an eligibility determination

within 120 days. D.C. Code § 38-2561.02(a). The duties to identify, evaluate, and determine

eligibility for disabled children are collectively known as the “Child Find” obligation.

        Children under three years of age who are identified, evaluated, and determined eligible

may receive early intervention services under Part C of the IDEA. For these children, the Act

requires a “smooth and effective” transition from Part C’s early intervention services to Part B’s

preschool special education programs. 20 U.S.C. § 1412(a)(9). A smooth and effective

transition is one that (1) begins no less than 90 days prior to the child’s third birthday; (2) does

not include a disruption in services between Part C and Part B services; and (3) involves Part B



                                                    2
personnel. Pls.’s Mot. for Class Cert. and Reinstatement of Findings of Liability and Order

Granting Relief [hereinafter Pls.’s Class Cert. Mot.], Ex. 6 (Expert Report of Carl J. Dunst, May

11, 2009), at 14 [hereinafter Dunst Report]; 34 C.F.R. § 303.209. The transition process must

include a conference between the child’s family and school officials to determine eligibility for

Part B services and to develop a transition plan and an Individualized Education Program

(“IEP”). The goal is “a seamless transition between services” under Parts C and B of the Act.

34 C.F.R. § 303.209.

       When executed properly, the early intervention mandated by the IDEA “can work a

miracle,” allowing an estimated 75–80% of disabled children to enter “kindergarten alongside

every other ordinary five-year-old—without needing further supplemental special education.”

DL v. District of Columbia, 845 F. Supp. 2d 1, 5 (D.D.C. 2011).

       The plaintiffs allege that the District has denied this miracle to a large number of disabled

children. Specifically, the plaintiffs aver that the District has engaged in a practice of failing to

identify disabled children, failing to evaluate and make eligibility determinations for identified

children, and failing to provide a smooth and effective transition from Part C to Part B special

education services. And because they allege that the District’s failure is pervasive and systemic,

plaintiffs sought to represent a class of children who, like themselves, were denied special

education services by the District.

       In August 2006, this Court certified a plaintiff class pursuant to Federal Rule of Civil

Procedure 23(b)(2), defining the class as

       All children who are or may be eligible for special education and related services,
       who live in, or are wards of, the District of Columbia, and (1) whom defendants
       did not identify, locate, evaluate or offer special education and related services to
       when the child was between the ages of three and five years old, inclusive, or (2)
       whom defendants have not or will not identify, locate, evaluate or offer special



                                                   3
        education and related services to when the child is between the ages of three and
        five years old, inclusive.

DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C. 2006).

        Following extensive discovery on the District’s IDEA performance through 2007, the

parties filed cross motions for summary judgment. The parties did not dispute that “the systems

in place to serve the birth-to-five population in the District of Columbia were inadequately

designed, supported, and facilitated across many years.” DL v. District of Columbia, 730 F.

Supp. 2d 84, 96 (D.D.C. 2010). The District’s systemic failure to comply with the IDEA

resulted in yearly citations for noncompliance from the federal Office of Special Education

Programs (“OSEP”). Id. at 97. Finding no genuine dispute that the District’s attempts to

identify, evaluate, and determine eligibility for disabled children were inadequate, the Court

granted summary judgment on liability as to the plaintiff class’s Child Find claim. Id.

       Additionally, the parties agreed that “the procedures used by [the District] to screen

children exiting Part C were in many cases not necessary and delayed provision of preschool

special education.” Id. at 98. Moreover, these screening procedures “were unreliable and were

not always aligned with accepted practices in the field.” Id. The Court therefore granted

summary judgment on liability as to the plaintiff class’s Part C to Part B transition claim. Id.

        As the data available at the time of summary judgment was limited to the period before

2007, summary judgment and the initial findings as to the District’s liability were limited to that

time period. On April 6 and 7, 2011, the Court held a bench trial to determine the District’s

liability for the period of 2008 through the trial date.

       Based on evidence presented at trial, the Court found that the District provided special

education services to less than 6% of its total child population, despite statistical projections that

the District should identify and serve at least 12%. DL, 845 F. Supp. 2d at 10. Of those disabled

                                                   4
children who were identified, the District failed to provide timely evaluations to 25–45% and

timely eligibility determinations to 56.75%. Id. at 11. As for transitions from Part C to Part B

services, the District provided smooth and effective transitions for 8.22% of children in 2008,

30.25% in 2009, and between 38–79% in 2010-2011. Id. at 12. The Court noted the District’s

efforts to reform its special education services in response to this litigation, but found that even

given those reforms, the District’s policies were inadequate to meet its obligations under the

IDEA. Id. at 15–17. Indeed, notwithstanding its reform efforts, the District was cited by the

federal OSEP for noncompliance for each of the four years prior to trial. Id. at 17. Thus, the

Court found that the District’s failure to institute adequate Child Find practices resulted in the

denial of a FAPE to a substantial number of disabled children and that the District failed to

comply with its legal duty to provide a smooth and effective transition to a significant portion of

disabled children. Id. at 21–23. The Court also found that the District demonstrated bad faith or

gross misjudgment by knowingly failing to comply with the IDEA and therefore violated Section

504 of the Rehabilitation Act, which prohibits discrimination in programs receiving federal

funding. 1 Id. at 23; 29 U.S.C. § 749(a).

         Given these findings, the Court granted the plaintiff class declaratory relief and imposed

a structural injunction enjoining the District to comply with its legal obligations under the IDEA.

Id. at 24–30.

         Two months after the April 2011 trial, and before this Court issued its final decision, the

Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which clarified

the proper interpretation of the commonality requirement for class certification under Rule


1
 Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . 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).

                                                            5
23(a)(2). Wal-Mart involved a putative class of one and a half million women, all current or

former employees of Wal-Mart, alleging that “the discretion exercised by their local supervisors

over pay and promotion matters violate[d] Title VII by discriminating against women.” 131 S.

Ct. at 2546. Noting that the pay and promotion decisions were made by thousands of

geographically-dispersed managers, the Court held that “[w]ithout some glue holding the alleged

reasons for all those decisions together, it will be impossible to say that examination of all the

class members’ claims for relief will produce a common answer to the crucial question why was I

disfavored.” Id. at 2552 (emphasis in original). To establish commonality, the Court held that a

class must present a common contention that is “capable of classwide resolution—which means

that determination of its truth or falsity will resolve an issue that is central to the validity of each

one of the claims in one stroke.” Id. at 2551.

        Based in part on the Wal-Mart decision, the District sought to decertify the class, arguing

that the plaintiff class improperly “bundled together [in their Complaint] multiple different

allegations of a variety of different provisions of the IDEA, the Rehabilitation Act, and local

District of Columbia law” and “amalgamat[ed] . . . a variety of provisions of a single statutory

scheme.” DL v. District of Columbia, 277 F.R.D. 38, 42 (D.D.C. 2011). In effect, the District

argued that the IDEA could be violated in many different ways, and that it was improper to

combine these multiple forms of IDEA violations in one broad class. The plaintiffs responded

by seeking to recertify the class as four distinct subclasses, each consisting, respectively, of

disabled children that the District failed to (1) identify; (2) timely evaluate; (3) determine

eligible; and (4) provide a smooth and effective transition from Part C to Part B services. This

Court denied the District’s motion, holding that each member of the plaintiff class had suffered a

common injury, namely “denial of their statutory right to a free appropriate public education.”



                                                   6
Id. at 45. Moreover, this Court held that the plaintiffs presented the common question whether

class members received a FAPE and noted that the class members’ “differing allegations only

represent the differing ways in which defendants have caused class members' common injury.”

Id. The District appealed.

         On appeal, the United States Court of Appeals for the District of Columbia Circuit

reversed this Court’s certification of the plaintiff class, holding that

         After Wal–Mart it is clear that defining the class 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,” which the Supreme Court has now instructed is
         insufficient to establish commonality given that the same provision of law “can be
         violated in many different ways.” Wal–Mart, 131 S.Ct. at 2551. In the absence of
         identification of a policy or practice that affects all members of the class in the
         manner Wal–Mart requires, the district court's analysis is not faithful to the
         Court’s interpretation of Rule 23(a) commonality.

DL v. District of Columbia, 713 F.3d 120, 126 (D.C. Cir. 2013). The Circuit therefore vacated

the class certification order and remanded the case to this Court “for reconsideration of whether a

class, classes, or subclasses may be certified, and if so, thereafter to redetermine liability and

appropriate relief.” Id. at 129.

    On remand, the plaintiffs filed a motion seeking certification of four subclasses and a motion

to amend the complaint to reflect the subclasses. For its part, the District opposes each of the

plaintiffs’ motions and seeks to dismiss the complaint for lack of jurisdiction. The Court will

consider each of these motions in turn.

    I.      CLASS CERTIFICATION
            A. Legal Standard
         Class litigation is “an exception to the usual rule that litigation is conducted by and on

behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700–01

(1979). Lest the exception swallow the rule, Federal Rule of Civil Procedure 23 imposes


                                                   7
prerequisites to class certification that “effectively limit the class claims to those fairly

encompassed by the named plaintiff's claims.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156

(1982). Thus, under Rule 23(a), the party seeking certification must demonstrate that

                  (1) the class is so numerous that joinder of all members is impracticable
                  [numerosity];
                  (2) there are questions of law or fact common to the class [commonality];
                  (3) the claims or defenses of the representative parties are typical of the
                  claims or defenses of the class [typicality]; and
                  (4) the representative parties will fairly and adequately protect the interests
                  of the class [adequacy].

Fed. R. Civ. P. 23(a); see also Wal-Mart, 131 S. Ct. at 2551. (“A party seeking class certification

must affirmatively demonstrate his compliance with [Rule 23]”). In addition to meeting each of

these prerequisites, the class must fit at least one of the three “types” described in Rule 23(b).

Here, plaintiffs seek certification under 23(b)(2), which applies when “the party opposing the

class has acted or refused to act on grounds that apply generally to the class, so that final

injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

whole.” Fed. R. Civ. P. 23(b)(2). 2

         Once a class is certified, Rule 23 provides district courts with “ample tools” to manage

the class. Marisol A. v. Giuliani, 126 F.3d 372, 379 (2d Cir. 1997). One such tool is the ability

to certify subclasses that must independently meet the requirements of Rule 23 and are treated as

separate classes. Fed. R. Civ. P. 23(c)(5); M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 848


2
   In the Complaint, the plaintiffs seek individual and compensatory damages; however, the plaintiffs maintain that
“[t]he principal purpose of this litigation has been to obtain injunctive and declaratory relief.” Pls.’s Class Cert. Mot.
at 35 n.11. In the class certification motion, the plaintiffs’ ask that this Court consider only whether the subclasses
can be certified under Rule 23(b)(2) for liability and injunctive relief, after which the plaintiffs may move for
certification of a Rule 23(b)(3) class for monetary damages. There is no question that certification of hybrid classes
is permitted under Rule 23. See, e.g., Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997) (holding that a district
court “may adopt a ‘hybrid’ approach, certifying a (b)(2) class as to the claims for declaratory or injunctive relief,
and a (b)(3) class as to the claims for monetary relief, effectively granting (b)(3) protections including the right to
opt out to class members at the monetary relief stage.”). The Court will consider the plaintiffs’ motion for (b)(3)
certification if it is filed. The plaintiffs should carefully consider whether a (b)(3) can be maintained under Rule 23
prior to filing the motion.

                                                            8
(5th Cir. 2012) (remanding to district court for “a rigorous analysis regarding whether the class

claims of each of the subclasses meets the requirements of Rule 23”). Certification of subclasses

is particularly suitable in a case such as this, where each subclass “consists of smaller groups of

children, each of which has separate and discrete legal claims pursuant to particular federal and

state constitutional, statutory, and regulatory obligations of the defendants.” Marisol A., 126

F.3d at 378. In the end, “as long as each subclass is homogeneous, in the sense that every

member of the subclass wants the same relief, and each subclass otherwise satisfies the

requirements for certifying a class, so that each could be the plaintiff class in a separate class

action, there is no objection to combining them in a single class action.” Johnson v. Meriter

Health Servs. Employee Ret. Plan, 702 F.3d 364, 368 (7th Cir. 2012).

           B. The Proposed Subclasses
       Plaintiffs propose certification of the following subclasses:
SUBCLASS 1: All children, who, when they were or will be between the ages of three and five,
were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards
of, the District of Columbia, and were not or will not be identified and/or located for the
purposes of offering special education and related services;
SUBCLASS 2: All children, who, when they were or will be between the ages of three and five,
were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards
of, the District of Columbia, and did not or will not receive a timely initial evaluation for the
purposes of offering special education and related services;
SUBCLASS 3: All children, who, when they were or will be between the ages of three and five,
were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards
of, the District of Columbia, and did not or will not receive a timely determination of eligibility
for special education and related services; and
SUBCLASS 4: All children with disabilities, as defined by the IDEA, who lived in or will live
in, or are or will be wards of, the District of Columbia, and who participated or will participate in
early intervention programs under Part C of IDEA, and who participated or will participate in
preschool programs under Part B, and who did not or will not have a “smooth and effective”
transition from Part C to Part B by the child’s third birthday.




                                                  9
           C. Rule 23 Analysis
       Certification of the proposed subclasses is proper only if this Court “is satisfied, after a

rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart, 131 S. Ct.

at 2551. In addition, the Court must determine whether the subclasses can be properly certified

under Rule 23(b)(2). The Court will also briefly address the District’s argument that the

subclasses are not sufficiently definite and the plaintiffs’ request for reinstatement of the Court’s

prior liability determinations and remedial order.

                    i. Numerosity
       Rule 23(a)(1) requires that “the class [be] so numerous that joinder of all members is

impracticable.” The plaintiffs “need not provide the exact number of potential class members in

order to satisfy this requirement,” and “numerosity is presumed at a level of 40 members.”

Bynum v. District of Columbia, 214 F.R.D. 27, 33 (D.D.C. 2003). Aside from class size,

plaintiffs must demonstrate Rule 23(a)(1)’s core requirement that joinder is impracticable.

Demonstrating impracticability of joinder “does not mandate that joinder of all parties be

impossible—only that the difficulty or inconvenience of joining all members of the class make

use of the class action appropriate.” Cent. States Se. & Sw. Areas Health & Welfare Fund v.

Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 244-45 (2d Cir. 2007).

       The first subclass includes all disabled children in the District who have not been and will

not be identified as candidates for special education services under the IDEA. In just one year,

2008, the plaintiffs’ expert estimates that the District failed to identify at least 1,152 disabled

children. Pls.’s Class Cert. Mot., Ex. 3 (Tr. Transcript, Apr. 6, 2011), at 79–82; Pls.’s Class Cert.

Mot., Ex. 2 (Direct Testimony of Carl J. Dunst, Mar. 16, 2011), at 8. The second subclass,

children who did not and will not receive initial evaluations within 120 days of referral,

numbered at least 514 in 2010. Pls.’s Class Cert. Mot., Ex. 4 (Early Stages Scorecard); Pls.’s

                                                  10
Class Cert. Mot., Ex. 5 (Direct Testimony of Dr. Leonard A. Cupingood, Mar. 15, 2011)

[hereinafter Cupingood Testimony], table 6. Subclass three, children who did not and will not

receive eligibility determinations within 120 days of referral, included at least 1,057 children in

2008 through 2010. Cupingood Testimony at 8, table 3. The final subclass, children who did not

and will not receive a smooth and effective transition from Part C to Part B services, included

163 children in 2008. Dunst Rep. at 16.

       In just the limited timeframes highlighted above, every subclass far exceeds the threshold

number of 40. Moreover, pursuit of individual actions on behalf of the class members would be

impracticable. Several of the relevant factors to impracticability—“financial resources of class

members, the ability of claimants to institute individual suits, and requests for prospective

injunctive relief which would involve future class members,” Robidoux v. Celani, 987 F.2d 931,

936 (2d Cir. 1993)—are present here.

       The IDEA ensures a free and appropriate education to the District’s youngest and most

vulnerable pupils, many of whom are “indigent and unable to obtain legal services.” Pls.’s Class

Cert. Mot. at 20. This litigation is thus an example of the “[e]conomic reality . . . that

petitioner’s suit [must] proceed as a class action or not at all.” Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 161 (1974). Moreover, the class seeks prospective relief for future class members,

whose identities are currently unknown and who are therefore impossible to join. See, e.g.,

Olson v. Brown, 284 F.R.D. 398, 408 (N.D. Ind. 2012) (“[F]uture members make joinder

inherently impracticable because there is no way to know who they will be” and “the inherently

transitory nature of the class members makes their joinder in a single, non-class suit impossible,

since only a portion of the class will have standing to bring their claims at any one time.”) And

class litigation of these claims is an efficient use of judicial resources and provides a uniform



                                                 11
redress of the plaintiffs’ common grievances. Accordingly, the Court finds the numerosity

requirement of Rule 23(a)(1) satisfied.

                   ii. Commonality
       Commonality—the “crux” of the Supreme Court’s Wal-Mart decision and the basis of the

Circuit’s opinion—exists when “there are questions of law or fact common to the class.” Fed. R.

Civ. P. 23(a)(2). In Wal-Mart, the Supreme Court clarified that it is not common questions that

matter so much as the “capacity of a classwide proceeding to generate common answers apt to

drive the resolution of the litigation.” Wal-Mart, 131 S. Ct. at 2155 (internal citation omitted)

(emphasis in original). The search for commonality is complicated because “at a sufficiently

abstract level of generalization, almost any set of claims can be said to display commonality.”

Love v. Johanns, 439 F.3d 723, 729–30 (D.C. Cir. 2006) (quoting Sprague v. Gen. Motors

Corp., 133 F.3d 388, 397 (6th Cir.1998)). Courts must therefore be careful to avoid certification

based on superficial commonalities (e.g., that all plaintiffs are residents of the District of

Columbia) or the mere assertion that class members have suffered a violation of the same

provision of law (e.g., that all plaintiffs the have suffered an IDEA violation). Wal-Mart, 131 S.

Ct. at 2551. Rather, to satisfy Rule 23(a)(2), the resolution of the common question of law or

fact must “resolve an issue that is central to the validity of each one of the claims in one stroke.”

Id. In other words, class members must have suffered the same injury for the same reason, such

as a uniform policy or practice that is illegal. Id. This is especially key in cases such as this

where plaintiffs allege widespread wrongdoing by a defendant because a “uniform policy or

practice that affects all class members,” DL, 713 F.3d at 128, bridges the gap between individual

claims of harm and the “existence of a class of persons who have suffered the same injury as that

individual,” Wal-Mart, 131 S. Ct. at 2553.



                                                  12
         Applying these principles, the Circuit held that the class previously certified in this case

lacked commonality because the “harms alleged to have been suffered by the plaintiffs here

involve different policies and practices at different states of the District’s Child Find and FAPE

process” and were linked together only by violation of the same provision of law, the IDEA. DL,

713 F.3d at 127. As originally certified, then, the class was overbroad, based upon “multiple,

disparate failures to comply with the District’s child find obligations,” rather than a “common

true or false question that can be answered for each of these . . . different claims of harm.” Id. at

128. The Circuit explained

         For some plaintiffs, for example, the alleged harm suffered is due to the failure of
         the District to have an effective intake and referral process; for others the alleged
         harm is caused by the District’s failure to offer adequate and timely education
         placements to implement individual education plans (“IEPs”); for still others, the
         cause is the absence of a smooth and effective transition from early intervention
         programs to preschool programs. 3

Id.

         Subclasses divided according to specific IDEA violations solves the broadness problem;

indeed, plaintiffs’ proposal directly tracks the specific harms identified by the Circuit. 4 Each


3
 This echoes the holding of the Seventh Circuit in Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481 (7th Cir. 2012), a
case cited in the Circuit’s opinion and relied upon by the District. As in the present case, the district court in Jamie
S. certified a broad class of disabled children who suffered violations of the IDEA. The Seventh Circuit, based on
Wal-Mart, reversed, stating:
          To illustrate the commonality problem in the certified class, consider two hypothetical students
          within the class: one has a disability and would be eligible for special education but has never
          been identified as being disabled nor gone through the IEP process; another was identified as
          disabled and received a timely IEP meeting, but the child’s parents did not attend the IEP meeting
          and were not notified of their right to do so. Both scenarios involve violations of the IDEA, but
          what common question can be answered that would assist the court in determining MPS’s liability
          for each? On the plaintiffs’ theory, that question is something like this: Did MPS fulfill its IDEA
          obligations to each child? But while that generic question is surely a part of both children’s claims,
          it must be answered separately for each child based on individualized questions of fact and law,
          and the answers are unique to each child’s particular situation.
Jamie S., 668 F.3d at 498.
4
 In fact, the proposed subclasses parallel the District’s argument to the Circuit. There, the District argued that the
original class improperly combined “failures in four distinct administrative functions: (1) identification of a child as
one potentially needing services, (2) location of that child, (3) evaluation for potential services, and (4) if necessary,
provision of services.” DL, 713 F.3d at 126.

                                                           13
proposed subclass poses the question whether the District’s policies were adequate to fulfill a

specific statutory obligation under the IDEA. Stated differently, each subclass alleges a uniform

practice of failure that harmed every subclass member in the same way. Specifically, the first

subclass seeks to litigate whether the District fulfilled its statutory duty to have effective policies

and procedures to identify disabled children; the second subclass asks whether the District

fulfilled its obligation to timely evaluate identified children; the third subclass questions whether

the District performed its duty to provide timely eligibility determinations; and the fourth

subclass seeks resolution of whether the District provided smooth and effective transitions

between Part C and Part B services as required by the IDEA. Every subclass thus presents a true

or false question that is dispositive of its respective claim.

        Two distinctions between the present claims and those in Wal-Mart further underscore

the commonality in the proposed subclasses.

        First, the Title VII claims at issue in Wal-Mart depended upon “the reason for [each]

particular employment decision,” Wal-Mart, 131 S. Ct. at 2552, and the Court emphasized that

each store manager was permitted to use “their own subjective criteria when selecting

candidates,” id. at 2546. Absent a uniform policy of discrimination, the Court found it

impossible to establish the same discriminatory bias among managers from over 3,000 stores

throughout the entire country. By contrast, resolution of the present claims turns on objective,

statutorily-defined obligations that lack the amorphous quality of Title VII decisions. The

plaintiffs do not seek to litigate the merits of individual, fact-specific IDEA claims—whether a

particular IEP was sufficient, for instance—but whether the District generally met its statutory

obligations to disabled children under the IDEA. Where there is a statutory obligation to act,

there is a significant difference between challenging the inadequacy or complete failure to enact



                                                  14
policies and procedures and alleging an erroneous application of a policy to individuals. For this

reason, even after Wal-Mart, courts have properly certified classes challenging uniform practices

of failure or inaction. See, e.g., Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013) (finding

commonality in class of state inmates alleging deliberate indifference to medical needs “where

all inmates are subjected to Defendant’s actions or lack thereof, because they have the sole

responsibility for health care policy”); Brooklyn Ctr. for Independence of the Disabled v.

Bloomberg, 290 F.R.D. 409 (S.D.N.Y. 2012) (finding commonality for a class challenging a

“City-wide policy and [the city’s]alleged failure to take into account the needs of disabled

citizens” despite the fact “the class members have diverse disabilities and will not all be affected

by the alleged omissions in . . . the same way”).

       Second, the fact that the development and administration of the District’s IDEA

procedures are centralized in two closely-related agencies—District of Columbia Public Schools

(“DCPS”) and the Office of the State Superintendent of Education (“OSSE”)—distinguishes this

case from Wal-Mart. A critical reason why the absence of a general policy was fatal to

commonality in Wal-Mart is that the plaintiff class sought to challenge “literally millions of

employment decisions” made by the independent managers of more than 3,000 stores. Wal-Mart,

131 S. Ct. at 2552. The Court indicated that some part of the class could successfully

demonstrate commonality if there were common claims of “discriminatory bias on the part of the

same supervisor.” Id. at 2551. This case is analogous to that scenario: disabled children in the

District are subject to failures and inadequacies caused by the same agency. The OSSE has final

responsibility for developing and ensuring compliance with the District’s IDEA policies, which

are implemented by DCPS. In 2009, and as a direct result of this litigation, the OSSE and DCPS

reorganized the District’s Early Stages Center. DL, 845 F. Supp. 2d at 15. The Center, directed



                                                 15
by Dr. Nathaniel Beers, oversees the vast majority of screenings, evaluations, and eligibility

determinations, and controls 95% of all transitions from Part C to Part B. Pls.’s Class Cert. Mot.,

Ex. 11 (Trial Tr., Apr. 6, 2011), at 169–70, 200. IDEA practices in the District, unlike the

thousands of managers in Wal-Mart, are highly centralized and within the purview of a single

decisionmaker.

        Thus, because each subclass presents a common contention that can be resolved with

“one stroke,” and given the factual distinctions from Wal-Mart, this Court finds the commonality

requirement satisfied.

                     iii. Typicality
        The third prerequisite for class certification—typicality—shifts the focus from the

characteristics of the class to the preferred qualities of the class representatives. Typicality

requires that “the claims or defenses of the representative parties are typical of the claims or

defenses of the class.” Fed. R. Civ. P. 23(a)(3). A named plaintiff’s claim is typical “if it arises

from the same event or practice or course of conduct that gives rise to a claim of another class

member’s where his or her claims are based on the same legal theory.” Stewart v. Rubin, 948 F.

Supp. 1077, 1088 (D.D.C. 1996) aff’d, 124 F.3d 1309 (D.C. Cir. 1997). The Rule requires that

the named plaintiffs’ claims be typical, not identical, and as such, this Court has found the

typicality requirement satisfied where “at least one named plaintiff has a claim relating to each

challenged practice for which relief is [sought].” Id. That standard is easily met here.

        As to the first subclass, named plaintiffs D.L. and J.B. allege that, despite being explicitly

informed of their disabilities, the District failed to identify them as potential candidates for

special education services. Sec. Am. Comp. ¶¶ 7–15, 41–42. 5 For example, the District received


5
 The Court will grant the plaintiffs’ Motion to Amend the First Amended Complaint, see Section III, infra, and thus
cites to the Second Amended Complaint.

                                                        16
notice of D.L.’s “significant behavioral and emotional problems” in June 2004, but did not

identify D.L. as an IDEA candidate until more than a year later in August 2005. Id. ¶¶ 6, 9, 15.

The claims of named plaintiffs T.F. and H.W. are typical of the second subclass as both allege

that they did not receive initial evaluations within 120 days of referral as required by the IDEA

and D.C. law. Id. ¶¶ 65–73, 27–30. T.F., for instance, alleges that despite a referral for an

evaluation in September 2003, the District failed to evaluate him until July 2005. Id. ¶¶ 66, 73.

The claims of the third subclass are typified by the claims of named plaintiffs D.L., H.W., J.B.,

and T.F., who all allege that the District failed to provide timely eligibility determinations. Id. ¶¶

14–15, 29–30, 45–50, 74. Finally, named plaintiffs X.Y. and T.L. both allege that the District

failed to provide a smooth and effective transition from Part C to Part B services. Id. ¶¶ 23–24,

34–38. In X.Y.’s case, the District properly convened a transition meeting when X.Y. was two

years, eight months old, but failed to ensure that he was transitioned to the Part B program,

causing a one-year disruption of services after X.Y.’s third birthday. Id. ¶¶ 23–25.

       For each subclass, there is a sufficient nexus between the claims of the named plaintiffs

and the claims of the class. The Court therefore finds the typicality requirement satisfied.

                   iv. Adequacy
       The final prerequisite to class certification, adequacy, requires a finding that “the

representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). There are two criteria for adequacy: “1) the named representative must not have

antagonistic or conflicting interests with the unnamed members of the class, and 2) the

representative must appear able to vigorously prosecute the interests of the class through

qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir.

1997). The District does not allege that there are conflicting interests between the named

plaintiffs and the subclasses or that the named plaintiffs appear unable to vigorously litigate this

                                                 17
case; rather, the District argues that because the named plaintiff’s claims are moot—an argument

this Court rejects, Section II.A, infra—they are per se inadequate. The Court disagrees.

       In support of its position, the District relies on a case from the Seventh Circuit, holding

that although the mootness of a named plaintiff’s claim “does not automatically disqualify him

from serving as class representative, since it does not make the suit moot . . ., it makes him

presumptively inadequate” under Rule 23(a)(4). Culver v. City of Milwaukee, 277 F.3d 908, 912

(7th Cir. 2002). But Culver is factually distinct from the present case. In Culver, the named

plaintiff brought suit on behalf of white men who had been allegedly discriminated against by

the Milwaukee Police Department. Id. at 909. The named plaintiff, whose request for an

application was denied, sought to certify a class “not only of other white males whose request for

job applications had been turned down but also white males who had somehow succeeded in

applying but had not been hired.” Id. at 910. The district court initially certified one class, but

later held that the class had to be divided into two subclasses—those who did not actually apply

and those who did—in part because Mr. Culver was not an adequate representative for those who

actually completed the application process but were not hired. Id. at 911–12. Holding that Mr.

Culver was not an adequate representative for either class, the Seventh Circuit relied, not only on

the mootness of Mr. Culver’s claim, but also on the fact that he “pursued the suit in a most

lackadaisical manner” and did “nothing to move the case forward except file a flurry of frivolous

motions.” Id. at 912. In other words, Mr. Culver failed to meet the second prong of the test for

adequacy: he did not “appear able to vigorously prosecute the interests of the class.” Twelve John

Does, 117 F.3d at 575. The lack of adequacy in Culver was buttressed by two additional facts:

(1) “no member of the class [had] any interest beyond that of a curious onlooker in pursuing




                                                 18
[the] litigation”; and (2) “the refusal of the class representative’s lawyer to cooperate in dividing

the class into subclasses.” Culver, 277 F.3d at 912–13.

        By contrast, the named plaintiffs and class counsel in the present case have displayed a

strong commitment to resolving this case, responding to all developments in a timely and

professional fashion. The named plaintiffs in this case simply do not display the “total lack of

interest and unfamiliarity with the suit” that is typically required to reject class certification for

lack of adequate representation. Harris v. Koenig, 271 F.R.D. 383, 391 (D.D.C. 2010) (internal

quotations omitted). The Court therefore finds that Rule 23(a)(4) is satisfied.

        The District also argues that class counsel is inadequate under Rule 23(g), which requires

appointment of class counsel that will “fairly and adequately represent the interests of the class.”

The District raises this objection despite acknowledging that “[p]laintiffs’ counsel is experienced

and knowledgeable in relevant respects,” Def.’s Opp’n at 33, but claims that “counsel

nevertheless does not satisfy the requirements of the rule because they do not have the financial

resources to adequately represent the class,” id. In support of this claim, the District

astonishingly cites an affidavit filed by class counsel Bruce J. Terris in another case, Salazar v.

D.C., stating that his firm faced substantial financial hardship as a result of the District’s refusal

to identify and pay undisputed attorney’s fees. Salazar v. District of Columbia, Civil No. 93-

452, Pls.’s Opp’n to Def.’s Mot. for Ext., ECF No. 1811, Ex. 1 (Affidavit of Bruce J. Terris,

Apr. 10, 2013); see also Salazar, Order, July 3, 2013, ECF No. 1835, at 3 (invoking

“fundamental fairness” to question the District’s justification for “denying Plaintiffs . . . the

money to which they will ultimately be paid in the future when they urgently need payment

now.”). The District is a direct cause of the financial hardship that they now argue disqualifies

counsel from representing the plaintiff class in this case. The Court rejects this argument as it



                                                   19
runs afoul of this jurisdiction’s chutzpah doctrine. See, e.g., Marks v. Commissioner, 947 F.2d

983, 986 (D.C. Cir. 1991) (invoking the doctrine in case of fugitives from criminal prosecution

arguing that inadequate efforts were made to find and notify them of tax delinquency); Harbor

Ins. Co. v. Schnabel Found. Co., Inc., 946 F.2d 930, 937 n.5 (D.C. Cir. 1991) (“[Th]e legal

definition of chutzpah: chutzpah is a young man, convicted of murdering his parents, who argues

for mercy on the ground that he is an orphan.”). Class counsel has prosecuted this case with

great professional ability and easily satisfies the requirements of Rule 23(g).

                   v. Rule 23(b)(2)
       Rule 23(b)(2) sets forth two basic requirements: (1) the party opposing the class must

have “acted, refused to act, or failed to perform a legal duty on grounds generally applicable to

all class members,” and (2) “final relief of an injunctive nature or a corresponding declaratory

nature, settling the legality of the behavior with respect to the class as a whole, must be

appropriate.” Fed. R. Civ. P. 23(b)(2); 2 William B. Rubenstein, Newberg on Class Actions §

4:26 (5th ed.). As to the first point, each of the four proposed subclasses asserts that the District

failed to meet its statutory obligations under the IDEA to ensure identification, timely evaluation,

timely eligibility determination, and effective transition from early intervention services to

preschool special education services, respectively. On the second requirement, because each

class alleges a uniform harm (e.g., not being identified, evaluated, determined eligible, and

afforded a smooth and effective transition), injunctive relief requiring the district to perform its

statutory duty will “settl[e] the legality of the behavior with respect to the class as a whole,” Fed.

R. Civ. P. 23(b)(2). Stated in Wal-Mart terms, certification of a (b)(2) class in this case is

appropriate because the District’s conduct is “such that it can be enjoined or declared unlawful

only as to all of the class members or as to none of them.” Wal-Mart, 131 S. Ct. at 2557.



                                                 20
        Relying on the Seventh Circuit’s opinion in Jamie S., the District argues that injunctive

relief such as that previously imposed by this Court “merely establishes a system for eventually

providing individualized relief.” Def.’s Opp’n to Pls.’s Mot. for Class. Cert. & Reinstatement of

Findings of Liability and Order Granting Relief, ECF No. 370, at 27 [hereinafter Def.’s Opp’n]

(quoting Jamie S., 668 F.3d at 499). The District’s argument—and its reliance on Jamie S.—is

incorrect. The district court’s injunctive remedy in Jamie S. established a “hybrid IEP team” of

“individuals from diverse professional backgrounds” to evaluate each class member to determine

whether there was a denial of FAPE, and if so, to determine whether compensatory services were

appropriate. Jamie S. v. Milwaukee Pub. Sch., No. 01-C-928, 2009 WL 1615520, at *28–*35

(E.D. Wis. June 9, 2009) vacated, 668 F.3d 481 (7th Cir. 2012). The district court’s

acknowledgement that the type and scope of compensatory services would be determined based

upon the “unique needs and circumstances of [each] class member” id. at *33, was

fundamentally incompatible with Rule 23(b)(2)’s requirement of indivisible injunctive relief.

The Seventh Circuit thus held that (b)(2) certification was inappropriate because the “intricate

remedial scheme” amounted to each class member receiving “a different or declaratory judgment

against the defendant.” Jamie S., 668 F.3d at 499.

        By contrast, each of the subclasses in the present case seeks declaratory and injunctive

relief that will apply equally to all class members. This is unlike the Jamie S. injunction, which

required “thousands of individual determinations of class membership, liability, and appropriate

remedies.” Jamie S., 668 F.3d at 499. The aim of the subclasses here—to rectify the District’s

systemic failure to comply four specific statutory duties to all class members—fits the prototype

of the (b)(2) class, which is the “most frequent[] . . . vehicle for civil rights actions and other




                                                  21
institutional reform cases that receive class action treatment.” Baby Neal ex rel. Kanter v. Casey,

43 F.3d 48, 58–59 (3d Cir. 1994). The Court therefore finds Rule 23(b)(2) satisfied.

                      vi. Definiteness
         The District asserts that class certification should be denied because the proposed

subclasses are fatally indefinite. Definiteness is not mandated by Rule 23 but is a judicial

creation requiring that the class be (1) “adequately defined;” and (2) “clearly ascertainable.” 1

William B. Rubenstein, ,Newberg on Class Actions § 3:3 (5th ed.). The latter requirement for

precise ascertainability of class members is intended to protect absent plaintiffs by enabling

notice and to protect defendants “by enabling a final judgment that clearly identifies who is

bound by it.” Id. § 3:7. But in a 23(b)(2) class, notice is not required, Fed. R. Civ. P.

23(c)(2)(A), and defendants are generally bound by any injunction imposed by the court. It is

therefore “not clear that the implied requirement of definiteness should apply to Rule 23(b)(2)

class actions at all.” Newberg § 3:7. For these reasons, the First and Tenth Circuits do not

require precise ascertainability for certification of (b)(2) classes. See Shook v. El Paso Cnty., 386

F.3d 963, 972 (10th Cir. 2004); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972). On the

other hand, the Fifth, Sixth, and Seventh Circuits have traditionally assessed the definiteness of

all classes, including (b)(2) classes seeking only injunctive relief. See, e.g., Romberio v.

Unumprovident Corp., 385 F. App’x 423, 430 (6th Cir. 2009); Adashunas v. Negley, 626 F.2d

600, 603 (7th Cir. 1980); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). But while

these circuits have perfunctorily applied the ascertainability requirement, none of them examined

whether the requirement should exist in (b)(2) classes. 6 Indeed, the district courts within these


6
  Still other circuits have affirmed certification of classes similar to the proposed subclasses in this case without even
addressing the ascertainability of the class. See ,e.g., Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir. 1997)
(affirming certification of class consisting of “[a]ll children who are or will be in the custody of the New York City
Administration for Children’s Services (“ACS”), and those children who, while not in the custody of ACS, are or
will be at risk of neglect or abuse and whose status is or should be known to ACS.”); Baby Neal, 43 F.3d at 54

                                                           22
circuits that have directly considered the issue have applied the requirement “more flexibly in

situations where individual notice to class members is not required, such as suits for equitable

relief.” Haynes v. Dart, No. CIV.A. 08 C 4834, 2009 WL 2355393, at *4 (N.D. Ill. July 29,

2009); see also Stewart v. Cheek & Zeehandelar LLP, 252 F.R.D. 387, 391 (S.D. Ohio 2008);

Midwest Cmty. Council, Inc. v. Chicago Park Dist., 87 F.R.D. 457, 460 (N.D. Ill. 1980)

(“Moreover, when, as here, defendants’ alleged policies and practices shape the contours of the

class, attacks on its definiteness are not entitled to weighty consideration provided all other

requirements for class certification are established.”).

         Because the rationale for precise ascertainability is inapposite in the 23(b)(2) context, this

Court agrees with the First and Tenth Circuits that it is not required in cases such as this where

only injunctive relief is sought and notice is not required. See Floyd v. City of New York, 283

F.R.D. 153, 172 (S.D.N.Y. 2012) (“It would be illogical to require precise ascertainability in a

suit that seeks no class damages.”). This is consistent with the intent of the drafters of Rule

23(b)(2), who explicitly endorsed its use in cases such as this that challenge widespread illegal

practices because the class members are often “incapable of specific enumeration.” Adv. Comm.

Notes to Rule 23; see also, e.g., Baby Neal, 43 F.3d at 58–59 (“[The] injunctive class provision

was designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a

numerous and often unascertainable or amorphous class of persons. . . . [I]njunctive actions,

seeking to define the relationship between the defendant and the ‘world at large,’ will usually

satisfy [the requirements of Rule 23(b)(2)]”) (internal quotations and citations omitted).

         The other component of definiteness, an adequately defined class, “is designed primarily

to help the trial court manage the class” by avoiding amorphous or subjective class definitions


(finding class certification proper for “all children in Philadelphia who have been abused or neglected and are or
should be known to the Philadelphia Department of Human Services.”).

                                                         23
that make it “impossible to determine who is or is not a member of the class.” Pigford v.

Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998). On this point, the District argues that the

subclass definitions are “administratively burdensome” because the definitions “depend on

subjective criteria and require extensive factual inquiry to determine class membership.” Def.’s

Opp’n at 31. Although the definitions may appear amorphous at first glance, each has an

objective and readily discernible meaning. For example, the second and third subclasses consist

of children who did not receive “timely” evaluations or eligibility determinations. But timeliness

does not, as the District argues, require “an individualized inquiry into the facts of that particular

child’s case.” Def.’s Opp’n at 31. Rather, it is defined by statute—any evaluation or eligibility

determination made more than 120 days from identification is untimely. Likewise, a “smooth

and effective” transition between Parts C and B of the IDEA is objectively defined as one that

(1) begins no less than 90 days prior to the child’s third birthday; (2) does not include a

disruption in services between Part B and Part C services; and (3) involves Part B personnel.

        Every class definition is sufficiently objective for determination of whether a particular

individual is a member of the class. The Court therefore finds that the subclasses are sufficiently

definite.

              D. Certified Subclasses
        Having found all requirements of Rule 23 satisfied, the Court will certify the following

subclasses:

SUBCLASS 1: All children, who, when they were or will be between the ages of three and five,
were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards
of, the District of Columbia, and were not or will not be identified and/or located for the
purposes of offering special education and related services.
REPRESNTATIVES: Subclass 1 shall be represented by named plaintiffs D.L. and J.B.
SUBCLASS 2: All children, who, when they were or will be between the ages of three and five,
were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards

                                                  24
of, the District of Columbia, and did not or will not receive an initial evaluation within 120 days
of the date of referral for the purposes of offering special education and related services.
REPRESNTATIVES: Subclass 2 shall be represented by named plaintiffs T.F. and H.W.
SUBCLASS 3: All children, who, when they were or will be between the ages of three and five,
were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards
of, the District of Columbia, and did not or will not receive a determination of eligibility within
120 days of the date of referral for special education and related services.
REPRESNTATIVES: Subclass 3 shall be represented by named plaintiffs D.L., H.W., and T.F.
SUBCLASS 4: All children with disabilities, as defined by the IDEA, who lived in or will live
in, or are or will be wards of, the District of Columbia, and who participated or will participate in
early intervention programs under Part C of IDEA, and who participated or will participate in
preschool programs under Part B, and who did not or will not have a “smooth and effective”
transition from Part C to Part B by the child’s third birthday. A transition shall be considered
“smooth and effective” if (1) the transition begins no less than 90 days prior to the child’s third
birthday; (2) the child is provided with an IEP listing both the type of placement and a specific
location for services by the child’s third birthday; (3) there is no disruption in services between
Part C and Part B services; and (4) Part B personnel are involved in the transition process.
REPRESNTATIVES: Subclass 4 shall be represented by named plaintiffs X.Y. and T.L.

             E. Reinstatement of Liability & Injunctive Relief
          The plaintiffs move this Court to reinstate its findings of liability and remedial orders.

But the Circuit expressly vacated “the class certification order, and consequently the liability and

remedial orders,” and remanded for redetermination of liability and appropriate relief. DL, 713

F.3d at 121 (emphasis added). Reinstatement of the prior liability and remedial orders would

therefore be plainly inappropriate. Accordingly, the plaintiffs’ motion to reinstate liability is

denied.

          Arguing from the opposite end of the spectrum, the District asserts that it faces no

liability at all because “this is not the case it was prior to appeal” and its IDEA compliance has

markedly improved. Def.’s Opp’n at 4. But although the Court applauds the District’s steps

towards fulfilling its obligations to its disabled child residents, “[i]t is the duty of the courts to

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



                                                   25
when abandonment seems timed to anticipate suit, and there is probability of resumption,”

United States v. Or. State Med. Soc’y, 343 U.S. 326, 333 (1952). And this Court has previously

found that reforms to the District’s IDEA practices “occurred because of pressures placed by this

lawsuit.” DL, 845 F. Supp. 2d at 15. Thus, the Court will not, as the District urges, accept its

“protestations of repentance and reform,” Or. State Med., 343 U.S. at 333, and forego a

reexamination of liability.

          As neither extreme presented by the plaintiffs or the District is proper, the Court will

impose a solution somewhere in the middle. The Court has made findings of fact regarding the

District’s IDEA performance through April 2011, but it is clear that much has changed since that

time. As such, the Court will, as specified in a separate order issued this date, commence

proceedings to make findings of fact on the District’s IDEA compliance with respect to each

subclass since April 2011. The Court will then, as instructed by the Circuit, redetermine liability

and the appropriate remedy.

    II.      MOTION TO DISMISS
          The Court now turns to the District’s motion to dismiss the plaintiffs’ claims for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

Article III, § 1 of the Constitution “limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). Given this

limitation, this Court is constitutionally bound to establish its jurisdictional authority to hear this

case. See, e.g., Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). As the party

claiming subject matter jurisdiction, it is the plaintiffs’ burden to establish that jurisdiction exists.

Id. The Court finds that plaintiffs have met this burden.

             A. Standing & Mootness



                                                   26
        Because the named plaintiffs are now between ten and fifteen years old and will therefore

never again be subject to the District’s inadequate Child Find procedures, the District argues that

the plaintiffs lack and standing and that their claims are moot. Def.’s Mot. to Dismiss, ECF No.

365, at 4–5. As a threshold matter, the District’s argument misapprehends the distinction

between standing and mootness. Standing—the requirement that plaintiffs have suffered a

concrete injury caused by the defendant and capable of judicial redress—is “assessed as of the

time a suit commences.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 324

(D.C. Cir. 2009). So long as the named plaintiffs met this requirement at the time that the initial

complaint was filed, Article III standing is satisfied. Events subsequent to the filing of the

complaint may moot the plaintiffs’ claims, but the plaintiffs do not lose standing. As explained

by the Supreme Court, “the doctrine of mootness can be described as the doctrine of standing set

in a time frame: The requisite personal interest that must exist at the commencement of the

litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotations omitted).

        This Court has previously found, and the District does not dispute, that the named

plaintiffs had standing at the time the complaint was filed in 2005. The plaintiffs thus still have

standing to litigate their claims.

        By contrast, the mootness doctrine requires a live controversy “at all stages of review, not

merely at the time the complaint is filed.” Alvarez v. Smith, 558 U.S. 87, 92 (2009) (internal

quotations omitted). But this doctrine “is riddled with exceptions.” U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 404 n.11 (1980). In Sosna v. Iowa, for example, the Supreme Court

held that a class action “does not inexorably become moot by the intervening resolution of the

controversy as to the named plaintiffs.” 419 U.S. 393, 401 (1975). The named plaintiff in Sosna



                                                 27
challenged the constitutionality of a one-year durational residency requirement for divorce

jurisdiction. Id. at 395–96. By the time the case reached the Supreme Court, Ms. Sosna had

satisfied the one-year requirement and her individual claim was therefore moot. Id. at 399. The

Court held that the case was “one in which state officials will undoubtedly continue to enforce

the challenged statute and yet, because of the passage of time, no single challenger will remain

subject to its restrictions for the period necessary to see such a lawsuit to its conclusion.” Id. at

400.

       The Court limited the Sosna holding to cases where the named plaintiff has a live case or

controversy at the time the complaint is filed and at the time the district court certifies the class.

Id. at 402. The named plaintiffs in this case had live claims at the time the complaint was filed

and at the time of initial class certification; however, that initial certification was vacated by the

Circuit. Legally, therefore, no class currently exists, and the District argues that the plaintiffs

cannot satisfy Sosna because their individual claims were mooted prior to certification of the

class. But the Court in Sosna wisely predicted that

       There may be cases in which the controversy involving the named plaintiffs is
       such that it becomes moot as to them before the district court can reasonably be
       expected to rule on a certification motion. In such instances, whether the
       certification can be said to ‘relate back’ to the filing of the complaint may depend
       upon the circumstances of the particular case and especially the reality of the
       claim that otherwise the issue would evade review.

Id. at 402 n.11; see also Basel v. Knebel, 551 F.2d 395, 397 n.1 (D.C. Cir. 1977) (noting that

under Sosna, there are “some circumstances a class action should not be deemed moot even if the

named plaintiff’s claim becomes moot prior to certification of the class.”).

       The lengthy and peculiar circumstances of the present case warrant relation back of the

subclass certification. This litigation has meandered since 2005. At the time this Court initially

certified the class, the named plaintiffs had live and ongoing controversies. It is undisputed that

                                                  28
members of every subclass continue to have live IDEA claims notwithstanding the status of the

named plaintiffs’ claims. Moreover, the decertification of the larger class and subsequent

certification of subclasses are not due to any undue delay by the plaintiffs. Rather, the gap in

class certification occurred because “Wal–Mart’s interpretation of Rule 23(a)(2) . . . changed the

landscape.” DL, 713 F.3d at 126.

       Relation back is also warranted because IDEA claims are inherently transitory. The

inherently transitory exception to mootness permits relation back in “any situation where

composition of the claimant population is fluid, but the population as a whole retains a

continuing live claim.” 1 William B. Rubenstein, Newberg on Class Actions § 2:13 (5th ed.). In

a case challenging the failure of a state to provide probable cause hearings to arrestees, the

Supreme Court explained:

       Our cases leave no doubt, however, that by obtaining class certification, plaintiffs
       preserved the merits of the controversy for our review. That the class was not
       certified until after the named plaintiffs’ claims had become moot does not
       deprive us of jurisdiction. We recognized in Gerstein that “[s]ome claims are so
       inherently transitory that the trial court will not have even enough time to rule on
       a motion for class certification before the proposed representative’s individual
       interest expires.

Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991). IDEA litigation, specifically

litigation involving the Child Find obligations that only apply to children aged three to five, is

undoubtedly transitory. The Supreme Court has recognized the “ponderous” nature of IDEA

claims, Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 370

(1985), which is demonstrated by the eight-year life of this case. This lengthy review process,

coupled with natural age progression, means that the composition of the class may change

constantly, but there is no doubt that “the population as a whole retains a continuing live claim.”

Newberg § 2:13; see, e.g., M.A. ex rel. E.S. v. Newark Pub. Sch., No. CIV.A. 01-3389SRCQ,



                                                 29
2009 WL 4799291, at *10 (D.N.J. Dec. 7, 2009) (“IDEA claims are without question inherently

transitory. In other words, an IDEA plaintiff's interest in rectifying the wrong complained of in

the complaint—for example, the deprivation of a FAPE in a particular school year—often lapses

by mere passage of time. Defendants’ provision of an evaluation, eligibility determination and

IEP to a named Plaintiff post-filing of the complaint, or alternatively, their inability to do so

because a named Plaintiff has graduated or aged out of the school system should not extinguish

the class claims or render those Plaintiffs inadequate class representatives.”).

       Accordingly, the Court finds that the subclass claims are not moot.

           B. Exhaustion
       Save one, all of the named plaintiffs have exhausted the administrative remedies

available under the IDEA. The District argues that because one plaintiff, T.L., did not exhaust

administrative remedies, the entire complaint must be dismissed for lack of jurisdiction. The

Court disagrees.

       Generally, “[a] court has no subject matter jurisdiction over an IDEA claim that has not

first been pursued through administrative channels.” Massey v. District of Columbia, 400 F.

Supp. 2d 66, 70 (D.D.C. 2005); cf. Cox v. Jenkins, 878 F.2d 414, 422 (D.C. Cir. 1989) (holding

that where plaintiffs failed to exhaust remedies under the Education of Handicapped Act, the

predecessor to the IDEA, “the District Court had no authority to hear their suit.”). In Honig v.

Doe, however, the Supreme Court held that under the IDEA, “parents may bypass the

administrative process where exhaustion would be futile or inadequate.” 484 U.S. 305, 327

(1988). And the District has presented no reason for this Court to reconsider its prior opinion

excusing exhaustion because it would futile in this case. DL v. District of Columbia, 450 F.

Supp. 2d 11, 18–19 (D.D.C. 2006). Likewise, nothing in the District’s motion defeats this

Court’s prior finding that “even if exhaustion of administrative remedies is required, plaintiffs

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have satisfied this requirement” given the Circuit’s holding that “only one named plaintiff is

required to exhaust his or her administrative remedies in civil rights class actions.” DL, 450 F.

Supp. 2d at 17; Hartman v. Duffey, 88 F.3d 1232, 1235 (D.C.Cir.1996) (holding “[t]he district

court applied this court’s doctrine of vicarious exhaustion—that exhaustion of administrative

remedies by one member of the class satisfies the requirement for all others with sufficiently

similar grievances . . . . ”); see also, e.g., Foster v. Gueory, 655 F.2d 1319, 1321–1322

(D.C.Cir.1981) (noting that “each individual plaintiff in a Title VII class action suit need not

individually file an EEOC complaint, but ... it is sufficient if at least one member of the plaintiff

class has met the filing prerequisite.”); Association for Community Living v. Romer, 992 F.2d

1040, 1045 (10th Cir.1993) (“[W]e do not hold that every plaintiff in a class action must exhaust

the IDEA’s administrative remedies. There may be cases where the purposes of the exhaustion

doctrine would not be furthered by having even one plaintiff exhaust the IDEA’s administrative

remedies. Even where exhaustion is necessary, the exhaustion of a few representative claims

may be sufficient”).

    Accordingly, the Court denies the District’s motion for the reasons stated in its prior opinion;

namely, that exhaustion would be futile, and alternatively, that each subclass has satisfied the

exhaustion requirement because all other named plaintiffs have exhausted their remedies.

    III.    MOTION TO AMEND COMPLAINT
    Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading only

with . . . the court’s leave” and that “the court should freely give leave when justice so requires.”

Although the rule is titled “Amendments Before Trial,” “courts have not imposed any arbitrary

timing restrictions on requests for leave to amend and permission has been granted under Rule

15(a) at various stages of the litigation. These include . . . after a judgment has been entered . . .

and even on remand following an appeal.” Charles Alan Wright, Arthur R. Miller et al., Federal

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Practice & Procedure, § 1488 (3d ed.). In keeping with this liberal amendment policy, the

Supreme Court has held that

        In the absence of any apparent or declared reason—such as undue delay, bad faith
        or dilatory motive on the part of the movant, repeated failure to cure deficiencies
        by amendments previously allowed, undue prejudice to the opposing party by
        virtue of allowance of the amendment, futility of amendment, etc.—the leave
        sought should, as the rules require, be ‘freely given.’

Foman v. Davis, 371 U.S. 178, 182 (1962); see also Firestone v. Firestone, 76 F.3d 1205, 1208

(D.C. Cir. 1996) (“Rule 15(a)’s liberal standard for granting leave to amend governs once the

court has vacated the judgment.”).

        The plaintiffs here have not exhibited any “undue delay, bad faith or dilatory motive . . . ,

[or] repeated failure to cure deficiencies by amendments previously allowed,” but the District

argues that it would be severely prejudiced should this Court permit amendment of the

complaint. Specifically, the District argues that it would have employed a different litigation

strategy, deposed and cross examined witnesses differently, and sought additional notice and

discovery as to each subclass. The Court finds this argument unconvincing as each of the claims

asserted by the subclasses was part of the initial complaint. Since the inception of this case, the

plaintiffs have alleged that the District failed to meet its statutory obligations to (1) identify

disabled children; (2) timely evaluate identified children; (3) make timely eligibility

determinations; and (4) provide smooth and effective transitions from Part C to Part B services.

The District therefore conducted discovery, deposed and cross examined witnesses, and made

motions to this Court knowing that these four claims were the subject of this case.

        Moreover, it would be nonsensical to deny leave to amend the complaint to reflect the

newly-certified subclasses given that (1) irrespective of any amendment to the complaint, this

Court has always had the power to certify subclasses under Rule 23(c)(5) and (2) the Circuit



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remanded this case for the explicit purpose of determining whether subclasses were appropriate

in light of Wal-Mart. Accordingly, the Court will grant the plaintiffs leave to amend the

complaint.

                                        CONCLUSION

       For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART the

plaintiffs’ Motion for Class Certification and Reinstatement of Findings of Liability and Order

Granting Relief; GRANTS the plaintiffs’ Motion to Amend the First Amended Complaint; and

DENIES the defendants’ Motion to Dismiss for Lack of Jurisdiction.

       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, United States District Judge, on November 8, 2013.




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