Case 1:05-cv-01437-RCL Document 1 Filed 07/21/05 Page 1 of 29

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

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DL, JB, OUL, DC, FD, and TF,

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by their parents and next friends:

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Tameka Ford

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1428 Chapin Street, N.W., Apartment #1

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Washington, DC 20009,

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Leah Bland

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2413 Alabama Avenue, S.E.

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Washington, DC 20020,

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Elizabeth Umaña-Lazo and Darwin Lazo

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5906 13th Street, N.W., Apartment #104

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Washington, DC 20001,

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Doris Cockrell

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1520 Butler Street, S.E., Apartment #102

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Washington, DC 20020,

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Frederick and Monica Davy

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6933 9th Street N.W.

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Washington, DC 20012,

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Angelique Moore

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2436 Wagner Street, S.E., Apartment B

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Washington, DC 20020,

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on their own behalf and on

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behalf of a class of similarly situated individuals, )

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Plaintiffs,

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v.

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THE DISTRICT OF COLUMBIA,

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a municipal corporation

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1350 Pennsylvania Ave, N.W., Suite #419

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Washington, DC 20004,

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and

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CLIFFORD B. JANEY in his

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official capacity as Superintendent

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of District of Columbia Public Schools

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825 North Capitol Street, N.E.,

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9th Floor

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Washington, DC 20002,

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Defendants.

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__________________________________________)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. Plaintiffs, on behalf of themselves and others similarly situated, bring this action under 42

U.S.C. 1983 for declaratory, injunctive and compensatory relief to challenge defendants’ policies,

procedures and practices of failing to identify, locate, evaluate and offer special education and related

services to children with disabilities in the District of Columbia who are between the ages of three

and five years old, inclusive (hereinafter “preschool children”). Defendants’ actions violate the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1400, et seq., Section 504 of the

Rehabilitation Act, 29 U.S.C. 794(a), implementing regulations, the Due Process Clause of the Fifth

Amendment, and District of Columbia law.

2. Named plaintiffs are current or former preschool children with sensory, emotional,

physical, cognitive or language disabilities who tried to obtain special education and related services

from the District of Columbia Public Schools (“DCPS”) or wanted to obtain these services as

preschool children, but have been denied, delayed or otherwise deprived of access to these services

because of defendants’ systemic failures to comply with federal and District of Columbia law.

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3. The IDEA, the Rehabilitation Act, implementing regulations and District of Columbia law require that the District of Columbia offer a “free appropriate public education” (“FAPE”) to children identified as disabled, including preschool children. To that end, these laws require that District of Columbia take concrete steps to identify, locate, evaluate and offer special education and related services to all preschool children in the District of Columbia with disabilities who need these services. This is known as the “Child Find” duty. Defendants have a policy, pattern and practice of failing to comply with their Child Find duty. Defendants’ failures are numerous, knowing, pervasive and systemic. Defendants’ actions have caused substantial harm to hundreds of young children in the District of Columbia by jeopardizing their educational opportunities and by denying them a right to a free appropriate public education.
JURISDICTION AND VENUE 4. This action is brought under 42 U.S.C. 1983 to enforce the IDEA, 20 U.S.C. 1400, et seq., and the Due Process Clause of the Fifth Amendment, and under Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a). The Court has jurisdiction under 28 U.S.C. 1331, 1343, and 1367. Venue is proper under 28 U.S.C. 1391.
PARTIES Plaintiffs
DL 5. DL1/ is a four-year-old boy who was born in 2001. He resides in Washington, D.C. He sues by his mother and next friend, Tameka Ford. 6. On information and belief, DL suffers from a disability that would qualify him for special
1/ Pursuant to Local Rule 5.4(f)(2), minors are identified by their initials in this Complaint. 3

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education and related services under the IDEA (“qualifying disability”). He exhibits behavioral and emotional problems, as well as speech and language delays. He is aggressive, hits, bites and fights with his teachers and with other children. He punches himself in the face repeatedly until he falls down exhausted, often lying still for long periods of time after these incidents.
7. Defendants have known that DL may have a qualifying disability since at least June 2004 and have failed to identify, locate, evaluate or offer him special education and related services.
8. When DL was three years old, he began attending Bright Beginnings, a daycare center for transitional and homeless children in the District of Columbia. Soon thereafter, he was evaluated at Georgetown Medical Center for developmental delays. The evaluations confirmed that DL needed speech, language, occupational and cognitive therapies.
9. In June 2004, Bright Beginnings convened a meeting, known as an Individualized Education Program (“IEP”) meeting. The purpose of the meeting was to discuss the evaluations and to determine what type of special education services DL needed. Bright Beginnings sent a formal request to DCPS to attend the IEP meeting. DCPS refused to attend. During the meeting, the participants agreed that DL should receive speech, language, occupational therapy and counseling services.
10. In December 2004, DL was removed from Bright Beginnings. DL’s mother, Tameka Ford, attempted to re-enroll DL in Bright Beginnings, but the day care would not accept him because of his behavioral problems.
11. In February 2005, Ms. Ford registered DL with DCPS at the Central Assessment Referral and Evaluations (“CARE”) Center of the Office of Special Education. She requested special education and related services for DL. She gave DCPS prior evaluations of DL and signed papers
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consenting to have DL evaluated by DCPS. DCPS did not act on Ms. Ford’s request for special education and related services.
12. In the spring of 2005, an advocate with For Love of Children (“FLOC”), a non-profit organization that provides services to at risk families in the District of Columbia, contacted DCPS on numerous occasions to urge the District of Columbia to act on Ms. Ford’s request for special education services. DCPS did not respond to these requests.
13. In the spring of 2005, Ms. Ford enrolled DL in two private preschools while waiting for DCPS to identify, locate, evaluate and offer DL special education and related services. Both preschools expelled DL for behavioral problems.
14. In June 2005, after receiving no response from DCPS, DL’s guardian ad litem requested a due process hearing to challenge DCPS’s failure to evaluate or offer special education services to DL. The hearing has not been held yet.
15. DL is not receiving any special education or related services. Defendants have failed to identify, locate, evaluate or offer a free appropriate public education to DL.
JB 16. JB is a six-year-old boy who was born in 1999. He resides with his mother, Leah Bland, and other family members in Washington, D.C. He sues by his mother and next friend, Leah Bland. 17. JB was diagnosed with autism in January 2004 and has a disability that would make him eligible for special education and related services. 18. Defendants have known since at least March 2004 that JB has a qualifying disability. 19. Nevertheless, defendants failed to identify, locate and evaluate him in a timely and adequate manner, failed to offer him any special education services during the 2004-2005 school
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year, and have yet to offer him special education and related services for the 2005-2006 school year. 20. From 2002 to 2004, Ms. Bland tried to place JB in several private preschools in the
District of Columbia. JB exhibited behavioral problems almost immediately. He threw frequent tantrums and scratched and hit himself. He began drooling and refused to eat. Ms. Bland was forced to withdraw him from the preschools as a result of his behavioral problems.
21. From 2002 to 2004, when Ms. Bland was attempting to place him in preschool, she was unaware that special education and related services were available from DCPS. On information and belief, defendants failed to inform or notify her or the private preschools that JB attended of the availability of special education and related services. Ms. Bland eventually learned through a private educational facilitythat DCPS could provide special education and related services to preschool children.
22. In March 2004, after learning that DCPS could provide services to preschool children and after JB was diagnosed with autism by a psychiatrist, Ms. Bland registered him at Ann Beers Elementary School, which is JB’s neighborhood school. She requested special education services for JB.
23. In the summer of 2004, DCPS conducted a speech evaluation of JB. DCPS failed to perform other critical evaluations to assess JB’s behavioral problems, even though Ms. Bland had requested these evaluations and had signed consent forms enabling DCPS to obtain information from JB’s psychiatrist and from his former preschools.
24. In November 2004, DCPS told Ms. Bland that it would conduct a psycho-educational evaluation. DCPS did not conduct the evaluation.
25. In December 2004, frustrated by DCPS’s failure to schedule or perform a psycho-
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educational evaluation, JB’s family arranged for a private psychiatric evaluation at the Center for Autism Spectrum Disorders of Children’s National Medical Center. The evaluation made extensive recommendations for intervention, including educational intervention.
26. In March 2005, DCPS performed an occupational therapy evaluation for JB. 27. In June 2005, 15 months after JB’s mother requested special education for JB, defendants convened a meeting with JB’s family. During the meeting, DCPS concluded that JB should be receiving special education and related services as a child with autism. Later that month, DCPS drafted an IEP, which is an educational plan that set forth the learning goals and educational services to be provided to JB. The IEP included a full-time special education program with small classes, two hours of speech language therapy weekly, and three 30-minute sessions of occupational therapy weekly. 28. DCPS has not yet implemented the IEP or offered an educational placement for JB that can provide these services. JB attends a private preschool at his mother’s expense and is waiting for DCPS to offer him a placement for the 2005-2006 school year. 29. DCPS has not provided JB with appropriate compensatory education or reimbursement for the time period during which DCPS failed to identify, locate, evaluate and offer him special education and related services.
OUL 30. OUL is a three-year-old boy who was born in 2002. He resides with his parents in Washington, D.C. He sues by his mother and father, and next friends, Elizabeth Umaña Lazo and Darwin Lazo. 31. OUL’s mother, Elizabeth Umaña-Lazo, speaks only Spanish. She does not speak or read
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English. OUL’s father, Darwin Lazo, speaks Spanish. He speaks limited English. 32. On information and belief, OUL has a qualifying disability. OUL was born prematurely
at 26 weeks, weighing two pounds and one ounce, and spent four months in the neonatal intensive care unit. OUL’s speech, cognitive and gross motor development are severely delayed. He is unable to walk or stand without a walker, and he wears a safety helmet, elbow braces, and leg braces when attempting to walk. He has been hospitalized at least ten times for asthma and other medical conditions. OUL receives Supplemental Security Income (“SSI”) for his disabilities and health insurance through the District of Columbia Medicaid program.
33. Defendants have known that OUL has had a qualifying disability since at least March 2004.
34. In March 2004, OUL began receiving occupational, physical and speech therapy for his disabilities at the Easter Seals Child Development Center (“Easter Seals”). The therapy was provided by the D.C. Early Intervention Program (“DCEIP”) of the D.C. Department of Human Services, which offers services to children with special needs until they turn three- years old.
35. In October 2004, Easter Seals convened a meeting with DCPS and OUL’s parents, known as a “transition” meeting. The purpose of the meeting was to discuss how OUL would continue to receive therapy and other special education services following his third birthday because Easter Seals would no longer be able to provide these services through DCEIP once OUL turned three. During the meeting with DCPS, OUL’s parents gave their consent to transition OUL to DCPS and to have him evaluated by DCPS. DCPS has not attempted to evaluate OUL.
36. Since the October 2004 meeting, OUL’s parents have been searching for an appropriate program that OUL can attend once Easter Seals terminates OUL’s therapy and services. DCPS
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recommended that Bancroft Elementary School was a suitable program for OUL. In March 2005, OUL’s father, Darwin Lazo, visited Bancroft. A Spanish-speaking service coordinator from Mary’s Center for Maternal and Child Health (“Mary’s Center”) went with Mr. Lazo to translate because he was unable to communicate in English. Mr. Lazo determined that Bancroft was not an appropriate program because OUL needs a walker and leg braces in order to walk, and the building is only accessible by stairs.
37. In March 2005, Mr. Lazo visited DCPS’s CARE Center and registered OUL as a nonattending student. A service coordinator from Mary’s Center went with him to help translate during the registration process. Staff at the CARE center told Mr. Lazo that they would contact him in the coming weeks about OUL. Defendants have not contacted Mr. Lazo about OUL or evaluated OUL as required by law. On information and belief, defendants have not screened or tracked OUL in order to identify, locate or evaluate him in the future.
38. OUL’s parents are worried that Easter Seals will terminate therapy for OUL since he is now three. OUL’s parents are worried that DCPS will not provide OUL with the special education and related services that are essential to his health and well-being.
39. Defendants have failed to identify, locate, evaluate or offer OUL special education and related services.
DC 40. DC is almost three years old and was born in 2002. She resides with her parents in Washington, D.C. She sues by her mother and next friend, Doris Cockrell. 41. On information and belief, DC is a preschool child with a disability that would make her eligible for services under the IDEA. DC is old enough to be evaluated by DCPS for special
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education and related services and will be eligible for services from DCPS as soon as she turns three. 42. DC has had numerous evaluations that reveal potential disabilities. When she was four
months old, DC began receiving developmental screenings every four to six months through Healthy Babies/Healthy Families DC (“HFDC”), which is an organization that provides social services to new families at risk in the District of Columbia. DC’s last developmental screening occurred in February 2005. The screenings consistently revealed that DC has developmental delays in several areas, including speech, language, physical and cognitive delays. The Hospital for Sick Children has also evaluated DC and concluded that she suffers from significant speech and language delays.
43. Defendants have had, on numerous occasions, encounters with DC, allowing defendants to know that DC has a qualifying disability. However, defendants have failed to identify, locate, evaluate or offer DC services. For example, since the time DC was an infant, DC’s parents have applied many times to defendant District of Columbia for services on behalf of their daughter, including requests for Medicaid services, day care vouchers, and early intervention services through DCEIP.
44. On information and belief, defendants have taken no steps to identify or locate DC. For example, they have not screened, tracked, or performed intake. No agency of defendant District of Columbia with whom DC has come into contact has coordinated with DCPS to identify and locate DC for special education and related services. No agency of defendant District of Columbia has informed or notified DC’s parents of the availability of special education and related services through DCPS. DC’s parents were not made aware of the availability of special education and related services through DCPS until informed by class counsel.
45. DC has received no special education and related services from defendants or in any
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other setting. She stays at home with her mother. Defendants have failed to identify, locate, evaluate and offer DC special education services.
FD 46. FD is a three-year-old boy who was born in 2001. He resides with his parents and sisters in Washington, D.C. He sues by his parents and next friends, Monica and Frederick Davy. 47. FD has a disability that qualifies him for services under the IDEA. FD was born prematurely at 29 weeks. He was diagnosed with End Stage Renal Disease, which resulted in a renal transplant on March 31, 2004. As a result of his premature birth, FD suffers from a number of medical conditions, including Prune Belly Syndrome (a lack of muscle tone in the abdominal area), spastic diplegia, and developmental delay. He has also had a vesicostomy and is not toilet trained. 48. FD exhibits significant delays in gross and fine motor skills and visual motor skills. His visual-perceptual skills, problem-solving skills, and communication skills are delayed. FD uses a posterior walker at all times and wears ankle-foot orthoses. He also requires a special chair to support his torso for seated work. 49. DCPS has delayed for months in offering special education and related services to FD. When FD was two years and eight months, his mother registered him as a non-attending student at his neighborhood school and sought special education services for him from DCPS. 50. In August 2004, FD was cleared medically to attend a group- or school- based program and began attending the Easter Seals Child Care program. Prior to that time, he had received limited services at home through the Early Intervention Program. DCPS staff, who observed FD while he was at the Easter Seals Child Care program, advised his mother that the program was not meeting all of his needs and that he needed higher functioning peers.
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51. In August 2004, DCPS concluded that FD was eligible for special education. DCPS drafted an IEP that required ten hours of specialized instruction and one hour each of occupational, physical, and speech language therapy on a weekly basis. Many of the necessary accommodations for FD were not integrated into the initial IEP, but were added after the parents engaged counsel and after DCPS agreed to revise the IEP. The revised IEP includes a nursing care plan, the services of a dedicated aide, an adaptive chair, and services in an accessible building to accommodate his walker. Services were to begin on September 1, 2004.
52. In December 2004, frustrated by DCPS’s failure to provide the services set forth in the IEP and failure to offer an educational placement, FD’s parents requested a due process hearing.
53. In March 2005, the parties entered into a settlement agreement whereby DCPS agreed to provide a placement that included, inter alia, a classroom with no more than 15 students, a teacher and an instructional assistant, and a nurse in the building full-time. The settlement expressly excluded coverage of the parents’ claims for compensatory education and for violations of the Child Find provisions of the IDEA. FD began receiving services in March 2005, seven months after he was found eligible to receive them.
54. DCPS has failed to offer compensatory education appropriate for the months during which time defendants failed to provide FD with appropriate classroom instruction with non-disabled age appropriate peers in an accessible environment. DCPS has also failed to provide FD the special chair that he needs to perform seated activities. FD has exhausted his administrative remedies.
TF 55. TF is a six-year-old boy who was born in 1998. He resides with his mother in Washington, D.C. He sues by his mother and next friend, Angelique Moore.
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56. In September 2003, TF began kindergarten at the DCPS Garfield Elementary School. TF’s kindergarten teacher believed that he needed speech and language therapy. Despite his teacher’s recommendation, defendants failed to refer him for an evaluation.
57. At the end of the 2003-2004 school year, TF’s kindergarten teacher recommended that TF repeat kindergarten because of his delays. Defendants again failed to refer him for an evaluation.
58. In August 2004, just days prior to the start of the 2004-2005 school year, TF’s mother was notified that, due to her home address, TF and her other children would not be able to return to Garfield that school year, but, instead, would have to attend Stanton Elementary School.
59. At the beginning of the 2004-2005 school year, Ms. Moore visited Stanton Elementary School to discuss TF’s speech and language problems. Ms. Moore informed staff at Stanton that TF had speech and language difficulties and that his Garfield Kindergarten teacher had told her that TF should repeat kindergarten. Despite Ms. Moore’s efforts, defendants failed to evaluate TF for speech and other education needs during the school year.
60. In September 2004, staff at Stanton initially placed TF in the first grade, despite his kindergarten teacher’s recommendation that he repeat kindergarten. TF experienced significant academic and behavioral problems during his first months in the first grade, and was returned to kindergarten by the beginning of the second quarter of the school year.
61. In January 2005, frustrated by DCPS’s failure to evaluate TF, his mother arranged for a private speech and language evaluation. The speech language pathologist concluded that TF had severe speech and language deficits and recommended that he receive intensive speech language services.
62. In April 2005, Ms. Moore, through counsel, sent DCPS copies of the evaluation
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recommending speech and language therapy and requested a full evaluation, including a psychoeducational assessment and an occupational therapy evaluation.
63. In June 2005, a due process hearing was conducted to challenge DCPS’s failure to evaluate TF. During the hearing, DCPS agreed to provide TF with four 30-minute sessions of speech language therapy weekly during the summer of 2005. The administrative hearing officer found, inter alia, that DCPS had conceded that there had been a Child Find violation and ordered that DCPS evaluate TF on an expedited basis no later than July 8, 2005. DCPS was ordered to provide TF with a schedule for summer speech language services no later than June 24, 2005. DCPS failed to do so until July 19, 2005.
64. Over a year has passed since TF’s kindergarten teacher recommended that he be evaluated for special education. DCPS has still not completed an evaluation of TF. TF is waiting for defendants to complete an evaluation, to determine his eligibility under the IDEA, to offer him special education and related services pursuant to an IEP as required by the IDEA, and to provide the necessary compensatory education services.
65. TF and Ms. Moore have exhausted their administrative remedies. Defendants
66. Defendant District of Columbia (hereafter “District”) is a municipal corporation subject to 42 U.S.C. 1983. The District is a “state” within the meaning of the IDEA and the Rehabilitation Act. The District receives federal funds under IDEA and must therefore comply with the requirements of the IDEA and Section 504 of the Rehabilitation Act. Through its designated agency, DCPS, the District is required to make available a FAPE for all children with disabilities residing in the District who are ages 3 to 22. 5 D.C.M.R. 3002.1(a). It is also required to ensure that
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procedures are implemented to identify, locate, and evaluate all children with disabilities residing in the District. 5 D.C.M.R. 3002.1(d).
67. Defendant Clifford B. Janey is the Superintendent of the District of Columbia Public Schools and is sued in his official capacity. Pursuant to D.C. Code 38-105, the Superintendent is charged with directing and supervising all matters pertaining to instruction in all public schools. Dr. Janey serves as the chief executive of DCPS to the extent that it serves as the State Education Agency (SEA) and the Local Education Agency (LEA) for the District of Columbia.
CLASS ACTION ALLEGATIONS 68. Named plaintiffs bring this action on behalf of themselves and all others similarly situated. Plaintiffs’ class consists of all children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive. 69. The requirements of Rules 23(a)(1)-(4) and (b)(2) of the Federal Rules of Civil Procedure are met as to the class because: (a) The class is so numerous that joinder of all members of the class is impracticable. On information and belief, hundreds of District children aged three through five, inclusive, have not been or will not be timely identified, located, evaluated or offered needed special education and related services and thereby have not or will not be afforded the opportunity to obtain a free appropriate public education. (b) There are questions of law and fact common to the class, namely whether DCPS’s policies, procedures and practices related to identification, location, evaluation and offer of special education and related services to preschool children
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violate the IDEA, Section 504 of the Rehabilitation Act, implementing regulations, the Due Process Clause of the Fifth Amendment and District of Columbia law. (c) The claims of the named plaintiffs are typical of the claims of the class in that each of the named plaintiffs has a disability that would make him or her eligible for special education and related services but was not identified, located, evaluated or offered special education and related services as a preschool child, or faces an imminent threat of not being identified, located, evaluated or offered special education and related services as a preschool child. (d) The named plaintiffs will fairly and adequately represent and protect the interests of the class. They have no interests that are antagonistic to the class and seek relief that will benefit all members of the class. They are represented by counsel with significant experience with this type of litigation; and (e) The defendants have acted and continue to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
STATUTORY BACKGROUND 70. In 1975, Congress enacted the Education for All Handicapped Children Act (“EHA”), now known as the Individuals with Disabilities Education Act (“IDEA”), “to ensure that the rights of children with disabilities * * * are protected.” 20 U.S.C. 1400(d)(1)(B). 71. The IDEA is a federal grant program administered by the U.S. Department of Education (“DOE”). 20 U.S.C. 1400, et seq. States and other jurisdictions, including the District of Columbia, that receive DOE funds must comply with the mandates contained in the IDEA and its implementing regulations. 72. The IDEA’s primary mandate is the guarantee that all children between the ages of 3 and 21 with disabilities have available to them a “free appropriate public education [“FAPE”] that emphasizes special education and related services designed to met their unique needs * * * .” 20 U.S.C. 1400 (d)(1)(A). This is known as the duty to provide “FAPE.”
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73. To that end, one of the specific mandates of the IDEA is that “[A]ll 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 * * * .” 20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.125(a)(1). This is known as the “Child Find” duty.
74. The specific requirements of the Child Find and FAPE duties and the process defendants must follow when identifying, locating, evaluating and offering special education services to children with disabilities are clearly set forth in the IDEA, the Rehabilitation Act, the implementing regulations of the U.S. Department of Education, and District of Columbia law.
75. For example, defendants are allowed 120 days from the date of a referral of a child to identify children with suspected disabilities, evaluate them, determine whether they are eligible for special education and related services, offer them a written educational program (known as an Individualized Education Program (“IEP”)) and offer them an appropriate educational placement. D.C. Code 38-2501.
76. Defendants are required to identify and notify children with disabilities of the availability of special education and related services. Defendants have a duty to “identify and locate every qualified handicapped” child residing in the jurisdiction and to “[t]ake appropriate steps to notify handicapped persons and their parents or guardians of [this] duty * * *.” 34 C.F.R. 104.32. See 29 U.S.C. 794(a); 34 C.F.R. 104.33.
77. Defendants are required to adopt “policies and procedures” to ensure that all children with disabilities who are in need of special education and related services are identified, located, and evaluated. 20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.125(a); 5 D.C.M.R. 3002.1(d), 3002.3(a). Defendants must ensure that a “practical method is developed and implemented to determine which
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children with disabilities are currently receiving needed special education and related services.” 20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.125(a).
78. Defendants are required to evaluate children suspected of disabilities. 20 U.S.C. 1414(a) - (c). Defendants must conduct comprehensive “initial evaluations” to “determine whether a child is a child with a disability” and “to determine the educational needs of such child.” 20 U.S.C. 1414(a)(1). See 34 C.F.R. 300.320(a), 34 C.F.R.300.532; 5 D.C.M.R. 3005.1. Defendants’ evaluations must conform to the evaluation procedures set forth in the IDEA and implementing regulations. See 34 C.F.R. 300.530-300.536, 300.540-300.543. For example, defendants must “assess[] in all areas related to the suspected disability, including * * * health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.” 34 C.F.R. 300.532 (g). See 20 U.S.C. 1414(b)(3). Defendants must conduct evaluations that are “sufficiently comprehensive to identify all of the child's special education and related services needs * * *.” 34 C.F.R. 300.532(h). See 20 U.S.C. 1414(b); 300.320; 5 D.C.M.R 3005.1, 3005.3-3005.10.
79. After conducting evaluations, defendants are required to determine eligibility for services. Defendants must convene a team that includes parents, teachers, and other qualified individuals to review the results of the evaluations, along with other information, in order to determine whether a child is disabled and needs special education and related services. 20 U.S.C. 1414(b)(4); 20 U.S.C. 1414(d)(1)(B); 34 C.F.R. 300.534, 300.535; 5 D.C.M.R. 3003.1, 3003.3, 3006.1 - 3006.7.
80. After determining eligibility, defendants are required to offer special education and related services. Defendants must participate with parents, teachers, and other qualified
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professionals to draft a comprehensive instruction plan, the IEP, which must meet the child’s unique needs and provide him or her with a free appropriate public education. 20 U.S.C. 1414(d); 34 C.F.R. 300.340 - 300.350, 300.535(b); 5 D.C.M.R. 3007.1- 3007.8. The IEP must be developed within 30 days of a determination that a child needs special education services. 34 C.F.R. 300.343(b)(2); 5 D.C.M.R 3007.1. The IEP must include annual goals to serve as the roadmap for the child’s educational development. 20 U.S.C. 1414(d)(1)(A); 34 C.F.R. 300.347; 5 D.C.M.R. 3009.1. The IEP must also include the specific special education and related services to be provided to the child. Id. Defendants must implement an IEP “as soon as possible,” 34 C.F.R. 300.342(b)(ii), 5 D.C.M.R. 3010.2, and must propose an appropriate placement for the child that can provide the special education and related services listed in the IEP. See 34 C.F.R. 300.350(a); 5 D.C.M.R. 3013.1.
81. Defendants’ Child Find and FAPE obligations extend to children who are cared for or enrolled in any potential setting, including children enrolled in public, private, and charter schools and daycare facilities. See 20 U.S.C. 1412(a)(10)(A)(ii); 34 C.F.R. 300.125, 300.451. The child find obligations also extend to “highly mobile children * * * such as migrant and homeless children * * *.” 34 C.F.R. 300.125(a)(2)(i).
FACTS 82. As described below, defendants are failing to comply with their Child Find and FAPE obligations to identify, locate, evaluate and offer special education and related services to all preschool children with disabilities in the District of Columbia. Defendants’ failures are widespread and systemic and can be rectified with injunctive and declaratory relief from this Court. 83. On information and belief, defendants have failed to adopt Child Find policies as required by the IDEA. They have not put into “effect policies and procedures” to ensure that all
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preschool children who may need special education services are identified, located or evaluated. Defendants have also failed to “develop[] and implement[]” a “practical method” to determine the children who are in need of special education and related services. For example, in contrast to other jurisdictions, defendants do not have a Child Find Program and have not established an Office of Child Find that identifies, locates and evaluates children for special education and related services. On information and belief, defendants have no budget for Child Find activities.
84. Defendants have failed to comply with the time lines in the IDEA and local laws that require defendants to identify and evaluate preschool children with suspected disabilities, determine their eligibility for services, develop their IEP’s, and place them in an appropriate educational program within a 120 days after a request is made.
85. Defendants have failed to take basic steps to notify and locate disabled children in the District who are in need of services and who are not receiving them. For example, defendants have failed to notify parents and other members of the public who work with preschool children that special education and related services are available through DCPS at no cost to the family. In contrast to other jurisdictions in the country, defendants have failed to conduct adequate public awareness activities to inform the public, including parents, health care providers, child care centers, advocates, community centers, and other members of the general public who work with preschool children who may need special education services. Defendants have failed to inform, train and work with preschools, child care providers, and other groups who care for a majority of the District’s preschool children about the availability of special education and related services through DCPS and about how parents and guardians may access these services. Defendants have failed to develop and distribute sufficient materials to the general public about the availability of special education and
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related services for preschool children. As a result, hundreds of preschool children with disabilities who need special education and related services do not know of the availability of services and are not identified, located, evaluated or offered these services.
86. On information and belief, defendants do not have a method of identifying or locating children with suspected disabilities. Defendants do not have a method of screening or tracking children with suspected disabilities. Defendants do not have an adequate intake and referral process that identifies and locates children who want special education and related services. For example, defendants refuse to accept referrals from day care providers, doctors, neighbors, social workers, advocates, or other persons with knowledge about children who may qualify. They have a policy of accepting referrals only from parents or DCPS employees. Even when parents make referrals or requests for services on behalf of their children, defendants have delayed action for many months or failed to act at all. As a result, hundreds of preschool children with disabilities are not identified as disabled and are deprived of access to the special education and related services that they need.
87. Defendants are failing to evaluate preschool children for special education and related services or are performing these evaluations inadequately or in violation of the IDEA’s evaluation procedures. For example, notwithstanding repeated requests from parents, defendants delay evaluations of preschool children for many months or fail to evaluate them at all.
88. Defendants also fail to assess children in all areas related to suspected disabilities. Defendants do not routinely conduct medical or psychiatric evaluations when they are indicated and do not have the staff to perform these evaluations. Defendants often fail to conduct occupational or assistive technology evaluations, even when the need is apparent. As a result, many preschool children with disabilities are not properly evaluated and consequently are denied access to needed
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special education and related services. 89. Defendants have failed to convene timely “IEP meetings” to determine eligibility for
special education services and to develop IEP’s, which specify what services will be provided. Defendants delay IEP meetings for months or convene them without the required participants, including teachers, parents, and other qualified professionals. As a result, many preschool children experience substantial delays before they are found eligible and receive services.
90. Defendants have failed to offer plaintiffs appropriate placements or have offered placements only after many months of delay. For example, defendants have proposed programs that do not have the staff, resources or capacity to implement IEP’s for preschool children with disabilities. As a result, many preschool children who have been found eligible and in need of services do not receive special education and related services.
91. Defendants’ failures have resulted in a Child Find system that is grossly inadequate when compared to Child Find programs in the rest of the country. According to recent statistics maintained by the Department of Education, Special Education Office, the District of Columbia is ranked last among 50 states in the provision of special education services to preschool children, ages three through five. In 2003, only 1.7% or 301 preschool children were provided special education services in 2003, less than one third of the national average of 5.56% and far less than the second worst state, Texas, which provides services to 3.96% of three to five year olds.
92. It is critical that children with disabilities be identified in their preschool years or earlier so that their disabilities can be treated and managed to ensure that they have educational opportunities in elementary and secondary school. Defendants’ actions have harmed hundreds of current and former preschool children in the District of Columbia by adversely affecting their
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educational opportunities, learning, and well-being. 93. Defendants’ actions amount to a policy, pattern, practice or custom that violates federal
law and shows deliberate indifference to plaintiffs’ federal rights under the IDEA, Rehabilitation Act, and Due Process Clause of the Fifth Amendment.
CLAIMS FIRST CLAIM INDIVIDUALS WITH DISABILITIES EDUCATION ACT 94. The IDEA and its implementing regulations require that “[a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive * * *.” 20 U.S.C. 1412(a)(1)(A). See 20 U.S.C. 1400(d)(1)(A); 34 C.F.R. 300.121. 95. The IDEA and implementing regulations require states to have “in effect policies and procedures” 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 and [that] a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” 20 U.S.C. 1412(a)(3)(A). See 34 C.F.R. 300.125. 96. As set forth in paragraphs 1-93 above, defendants have a policy, pattern and practice of failing to identify, locate, evaluate or offer special education and related services. Defendants failures are numerous and systemic. 97. Defendants’ actions violate 20 U.S.C. 1412(a)(1)(A), 20 U.S.C. 1412(a)(3)(A), 20 U.S.C. 1400 (d)(1)(A), and the implementing regulations. SECOND CLAIM
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REHABILITATION ACT 98. Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), and its implementing regulations, forbid defendants from discriminating against or excluding an otherwise qualified child from participation in the federally funded program or activity because of the child’s disability. Defendants are liable under 29 U.S.C. 794(a) for IDEA violations where they exercise gross misjudgment or depart grossly from acceptable standards among educational professionals. 99. The regulations relating to Section 504 of the Rehabilitation Act provide that “a recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped” child in its jurisdiction. 34 C.F.R. 104.33. 100. The regulations also provide that “[a] recipient that operates a public elementary or secondary education program or activity shall annually: (a) Undertake to identify and locate every qualified handicapped” child residing in the jurisdiction; and “(b) [t]ake appropriate steps to notify handicapped persons and their parents or guardians of [this] duty * * *.” 34 C.F.R. 104.32. 101. Defendants have failed to identify, locate, evaluate or offer special education and related services and a free appropriate public education to plaintiffs. Defendants’ failures are numerous and systemic and discriminate against plaintiffs. 102. Defendants’ actions violate Section 504 of the Rehabilitation Act and implementing regulations.
THIRD CLAIM DUE PROCESS 103. The Due Process Clause of the Fifth Amendment bars defendants from depriving
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plaintiffs of a protected liberty interest without due process of the law. 104. Plaintiffs have a protected liberty interest in a free appropriate public education
guaranteed by the IDEA, implementing regulations, and District of Columbia law. 105. Defendants have deprived plaintiffs of a free appropriate public education by failing
to comply in an adequate and timely manner with the IDEA, implementing regulations, the D.C. Code, and District of Columbia regulations. Defendants’ failures are numerous and systemic.
106. Defendants’ actions violate the Due Process Clause of the Fifth Amendment. FOURTH CLAIM D.C. CODE
107. D.C. Code 38-2501 requires that defendants “shall assess or evaluate a student, who may have a disability and who may require special education services, within 120 days from the date that the student was referred for an evaluation or assessment.”
108. Defendants violate D.C. Code 38-2501 because they fail to evaluate preschool children who may have a disability within 120 days of referral for an assessment.
FIFTH CLAIM DISTRICT OF COLUMBIA REGULATIONS 109. District of Columbia regulations require that defendants make available “a free appropriate public education (FAPE) * * * to each child with a disability, ages three to twenty-two,” who is a resident or ward of the District of Columbia. 5 D.C.M.R. 3002.1(a). 110. District of Columbia regulations require that defendants “ensure that procedures are implemented to identify, locate and evaluate all children with disabilities” who reside in the District of Columbia and who are in need of special education and related services. 5 D.C.M.R. 3002.1(d).
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See 5 D.C.M.R. 3002.3(a). 111. District of Columbia regulations require that defendants ensure that “beginning at age
three, FAPE is available to any child with a disability who needs special education and related services, including * * * highly mobile children, such as migrant or homeless children * * *.” 5 D.C.M.R.3002.1(e).
112. Defendants have failed to identify, locate, evaluate and offer special education and related services and a free appropriate public education to plaintiffs. Defendants’ failures are numerous and systemic.
113. Defendants’ actions violate 5 D.C.M.R.3002.1(a), (d), (e), 3002.3(a). RELIEF
Plaintiffs, on behalf of themselves and all other persons similarly situated, request that this Court grant the following relief:
(1) Certification of this action, as a class action, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, consisting of:
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive. (2) A declaratory judgment that defendants have violated the following federal statutes and regulations:
(a) The IDEA, 20 U.S.C. 1400, et seq, namely 20 U.S.C. 1412(a)(3)(A), 20 U.S.C. 1400(d)(1)(A), 20 U.S.C. 1412(a)(1)(A) and implementing regulations
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by failing to identify, locate, evaluate, or offer a free appropriate public education to plaintiffs in accordance with the IDEA and implementing regulations; (b) Section 504 or the Rehabilitation Act, 29 U.S.C. 794(a), and the implementing regulations, 34 C.F.R.104.32 and 34 C.F.R.104.33, by exercising gross misjudgment in failing to identify, locate, evaluate and offer plaintiffs a free appropriate public education; (c) The Due Process Clause of the Fifth Amendment by depriving plaintiffs of their rights and interests under the IDEA, implementing regulations, and District of Columbia law with respect to the identification, location, evaluation and offer of a free appropriate public education; (d) D.C. Code 38-2501 by failing to evaluate or assess plaintiffs within 120 days of a referral; and (e) 5 D.C.M.R. 3002.1(a), (d), (e), and 3002.3(a) by failing to identify, locate, evaluate or offer a free appropriate public education to plaintiffs. (3) A preliminary and permanent injunction ordering defendants to: (a) develop and implement adequate and effective policies and procedures and a practical method of identifying, locating and evaluating plaintiffs for special education and related services; (b) notify and inform parents and members of the community that special education and related services are available to plaintiffs at no cost to the parent or family; (c) develop an adequate and effective intake and referral process that accepts
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referrals from any individual for a child who may need special education and related services; (d) conduct adequate and timely initial evaluations; (e) determine eligibility and develop and implement IEP’s in an adequate and timely
manner; and (f) offer adequate and timely education placements to implement IEP’s.
(4) An order enjoining defendants to take appropriate affirmative actions to ensure that the violations of federal and District of Columbia law complained of above do not continue to be engaged in by defendants, their agents, successors, employees, subordinates, attorneys and those acting at their direction; (5) An order enjoining defendants to provide compensatory education to plaintiffs whom defendants failed to identify, locate, evaluate or offer special education and related services when they were between three and five years old, inclusive; (6) An order requiring defendants to reimburse plaintiffs for the funds expended to obtain evaluations, special education and related services as a result of defendants’ violations of federal law; (7) An order appointing a Special Master whose duties shall include, but not be limited to, monitoring and reporting to the Court regarding:
(a) defendants’ compliance with the Court’s Order; (b) remedies necessary to bring about full compliance with the Court’s order. (8) An award of reasonable attorneys’ fees and costs; and (9) Such other relief as may be deemed proper by the Court.
Respectfully submitted,
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BRUCE J. TERRIS (D.C. Bar No. 47126) KATHLEEN L. MILLIAN (D.C. Bar No.412350) SHINA MAJEED (D.C. Bar No. 491725) TERRIS, PRAVLIK & MILLIAN, LLP 1121 12th Street, N.W. Washington, DC 20005 (202) 682-2100
/s/ JEFFREY S. GUTMAN (D.C. Bar No. 416954) The George Washington University Law School 2000 G Street, N.W. Washington, DC 20052 (202) 994-7463
/s/ MARGARET A. KOHN (D.C. Bar No. 174227) Attorney at Law 1320 19th Street, N.W., Suite 200 Washington, DC 20036 (202) 667-2330
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 Case 1:05-cv-01437-RCL Document 53 Filed 08/25/06 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DL1, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 05-1437 (RCL)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM OPINION

This matter comes before the Court on the defendants’ Motion [18] to Dismiss. Upon

consideration of the defendants’ motion, the opposition thereto, the reply brief, the applicable

law, and the entire record herein, the Court concludes that the defendants’ motion will be denied.

Also pending before this Court with regard to the instant motion are Plaintiffs’ Motion [35] to

Strike Defendants’ Supplement to their Reply and Plaintiffs’ Consent Motion [36] to File a Sur-

reply. For the reasons set forth below, plaintiffs’ motion to strike will be granted, and plaintiffs’

motion to file a surreply will be denied as moot.

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court must dismiss claims over

which it has no subject matter jurisdiction. In evaluating whether it has subject matter

jurisdiction, the court must construe the complaint liberally, and give the plaintiff the benefit of

all reasonable inferences. See Tozzi v. EPA, 148 F. Supp. 2d 35, 41 (D.D.C. 2001) (citing

1
Pursuant to Local Civil Rule 5.4(f)(2), minors are identified by their initials in this Amended Complaint.

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Scheuer v. Rhodes, 416 U.S. 232 (1974)). Under 12(b)(1), the plaintiffs bear the burden of establishing that the court has jurisdiction. In accordance with this governing standard, the Court will credit as true the factual allegations in the plaintiffs’ amended complaint, which are set forth in the “Background” section, below.
In this case, plaintiffs challenge defendants’ policy, pattern and practice of failing to identify, locate, evaluate and offer special education and related services to children in the District of Columbia who are between the ages of three and five years old. Named plaintiffs are children with sensory, emotional, physical, cognitive or language disabilities who would like to obtain special education and related services from the District of Columbia Public Schools (“DCPS”) as preschool children, but allegedly have been denied, delayed or otherwise deprived of access to these services because of defendants’ systemic failures to comply with federal and District of Columbia law. (Am. Compl. 2-3.)
Under federal law, District of Columbia Public Schools (“DCPS”) must provide children with disabilities the same service they provide to other children: a free and appropriate public education (“FAPE”). Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. (1970) (“IDEA”), amended by Pub. L. No. 108-446, 118 Stat. 2647 (2004). The laws also require the District of Columbia to identify, locate, evaluate and offer special education and related services to all children with disabilities who need them, including to preschool children. 20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.125; 5 DCMR 3002.3.
The duty to “identify, locate, and evaluate” is also known as the “Child Find” duty and has long been a core component of the IDEA. The Child Find duty mandates that defendants take affirmative steps to ensure that children with disabilities in the District of Columbia are “found”
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and are given the opportunity to enter the special education system and receive special education and related services.
BACKGROUND This case revolves around the education of seven young children. Plaintiffs allege the following. (1) DL is a five-year-old boy who suffers from a disability that would qualify him for special education and related services under the IDEA. (See Am. Compl. ¶¶ 6-7.) He exhibits behavioral and emotional problems, as well as speech and language delays. Plaintiffs allege that defendants have known that DL may have a qualifying disability since at least June 2004 and have failed to evaluate him or offer him special education and related services. (Id. at ¶ 7.) In June 2005, DL’s guardian ad litem requested a due process hearing to challenge DCPS’s failure to evaluate or offer special education services to DL. (Id. at ¶ 14.) Due process hearings were held in DL’s case in September and October 2005 regarding defendants’ Child Find failures and the Hearing Officer ordered DCPS to provide compensatory education for DL. (Id. at ¶ 17.) DL remains at Moten Elementary School on an interim basis and is receiving some services. (Id. at ¶ 18.) DL has exhausted his administrative remedies. (2) XY is a four-year-old boy who is suffers from Autism Spectrum Disorder, which was diagnosed in May 2005. (See Id. ¶¶ 19.) Plaintiffs allege that defendants have failed repeatedly to comply with the Child Find and FAPE requirements for XY. (Id. at ¶ 21.) In February and March 2006, two due process hearings were held for XY. (Id. at ¶ 25.) The hearing officer determined that defendants had violated the Child Find and FAPE provisions by failing to identify, locate, evaluate, and offer XY special education services within the time frames
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mandated by federal and District of Columbia law. (Id.) The judge issued a written decision that ordered DCPS immediately to evaluate XY, develop an appropriate IEP, and offer an appropriate placement. (Id.) The judge also ordered immediate relief, including compensatory education. (Id.) Because DCPS subsequently had failed to develop an appropriate IEP or offer an appropriate placement, the parties appeared for a third due process hearing on July 17, 2006. (Id. at ¶ 26.) The Hearing Officer ruled in favor of the parents during the hearing and DCPS has not yet complied with this decision. XY and his parents have exhausted their administrative remedies. (Id.)
(3) HW is a six-year-old disabled girl who has speech and language delays which impair her ability to participate in the classroom and communicate with others. (See Id. ¶¶ 27-28.) Since January 2005, HW has requested that DCPS comply with the Child Find requirements and identify, locate, evaluate, and offer HW special education and related services. (Id. at ¶ 29.) Plaintiffs allege that DCPS completed referral forms for HW in March 2005, but since then, has failed to screen HW, evaluate her, determine her eligibility, convene an IEP meeting, or offer an appropriate educational placement. (Id.) HW’s parents have waited one and a half years for DCPS to comply with its Child Find requirements are still waiting for DCPS to comply with the Child Find requirements and to evaluate HW, determine her eligibility, develop an IEP, and offer her an appropriate placement. (Id. at ¶ 30.)
(4) TL is a three year-old disabled boy diagnosed with a disorder of the vestibular system, including an underlying sensory integration and listening disorder, motor apraxia, and a profile consistent with Autism Spectrum Disorder. (See Id. at ¶ 31.) Plaintiffs allege that DCPS has failed to comply with the Child Find and FAPE requirements. (Id. at ¶ 33.) On July 27,
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2006, DCPS found TL eligible for special education services. DCPS wrote an IEP for TL but offered a program that is overly restrictive. (Id. at ¶ 38.) TL and his parents are still waiting for an appropriate IEP and educational placement. (Id.)
(5) JB is a six-year-old boy who was diagnosed with autism in January of 2004. Plaintiff claims that defendants failed to offer him any special education services during the 2004-2005 and 2005-2006 school years. (Id. at ¶ ¶ 39-40.) From 2002 to 2004, JB’s mother tried to place JB in several private preschools in the District of Columbia but was forced to withdraw him as a result of his behavioral problems. (Id. at ¶ 43.) Ultimately, DCPS performed an occupational therapy evaluation for JB and drafted an Individual Education Plan (“IEP”). The IEP included a full-time special education program with small classes, two hours of speech language therapy weekly, and three 30-minute sessions of occupational therapy weekly. (Id. at ¶ 50.) Plaintiffs allege that DCPS did not timely implement JB’s IEP or offer an educational placement for the 2004 - 2005 school year until August 2005, 17 months after JB’s mother requested these services. JB attended private childcare at his mother’s expense during this time. (Id. at ¶ 51.) In May 2006, DCPS offered JB’s parents a compensatory education proposal for the 2004-2005 school year; the parties are in discussions regarding this proposal. (Id. at 52.)
(6) FD is a three-year-old boy who was born prematurely, at 29 weeks. (Id. at ¶¶ 54-55.) He was diagnosed with end stage renal disease, which resulted in a kidney transplant on March 31, 2004. (Id.) As a result of his premature birth, FD also suffers from a number of other medical conditions, including Prune Belly Syndrome, spastic diplegia, and developmental delay. (Id.) FD exhibits significant delays in gross and fine motor skills and visual motor skills. His visual-perceptual skills, problem-solving skills, and communication skills are also delayed. FD
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uses a posterior walker at all times and wears ankle-foot orthoses. (Id. at ¶ 56.) He also requires a special chair to support his torso for seated work. (Id.)
DCPS created an IEP for FD which was to be implemented on September 1, 2004. (Id. at ¶ 59.) In December 2004, FD’s parents requested a due process hearing. (Id. at ¶ 60.) In March 2005, the parties entered into a settlement agreement whereby DCPS agreed to provide a placement that included a classroom with no more than 15 students, a teacher and an instructional assistant, and a nurse in the building full-time. (Id. at ¶ 60.) Plaintiffs allege, however, that defendants failed to offer compensatory education and also failed to provide FD the special chair that he needs to perform seated activities. (Id. at ¶ 62.) On March 2, 2006, and because of defendants’ continued Child Find and FAPE failures, the parties again attended a due process hearing and the parties entered into a settlement agreement during the hearing regarding some of these matters. (Id. at ¶ 63.)
In March 2006, DCPS informed FD’s parents that it would be changing FD’s placement to Takoma Elementary School. (Id. at ¶ 64.) Plaintiffs allege that Takoma is not a medically appropriate or safe placement for FD. FD’s parents have objected to Takoma as a placement but DCPS has yet to offer an appropriate educational placement for the 2006-2007 school year. (Id.) FD has exhausted his administrative remedies.
(7) TF is a six-year-old boy who has speech and language problems. In June 2005, a due process hearing was conducted to challenge DCPS’s failure to evaluate TF. (Id. at ¶ 73.) During the hearing, DCPS agreed to provide TF with four 30-minute sessions of speech language therapy weekly during the summer of 2005. (Id.) The administrative hearing officer found that DCPS had conceded that there had been a Child Find violation and ordered that DCPS evaluate TF on
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an expedited basis no later than July 8, 2005. (Id.) DCPS was ordered to provide TF with a schedule for summer speech language services no later than June 24, 2005. (Id.) DCPS failed to do so until July 19, 2005. On September 19, 2005, defendants found TF to be eligible for special education and related services. (Id. at ¶ 74.) DCPS completed an IEP for him, which included 10 hours of specialized instruction and 1 hour of speech language therapy, at his neighborhood school, Stanton Elementary School. (Id.) On June 8, 2006, TF’s mother attended an IEP Review meeting. (Id. at 75.) During the meeting, defendants determined that TF continued to need special education and related services. (Id.) TF and Ms. Moore have exhausted their administrative remedies.
DISCUSSION Defendants argue plaintiffs’ complaint should be dismissed because plaintiffs did not exhaust their administrative remedies before filing the present action. It is a “long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–51 (1938). The exhaustion doctrine functions primarily to forestall the “premature interruption of the administrative process” by the courts. McKart v. United States, 395 U.S. 185, 193 (1969). The IDEA does not entitle private parties to bring an action before seeking administrative relief. However, exhaustion is not required when it is demonstrated that continuing through the administrative process would be futile or inadequate. Honig v. Doe, 484 U.S. 305, 327 (1988). But, in this Circuit, the “futile or inadequate” standard is difficult to meet. Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 106 (D.C. Cir. 1986) (“The rule is that the
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exhaustion requirement may be waived in only the most exceptional circumstances.”) (citations
omitted).
Plaintiffs respond that exhaustion is not required because exhaustion of remedies would
be futile and the administrative remedies inadequate. Moreover, plaintiffs maintain that even if
exhaustion were required, that only one named plaintiff needs to exhaust his or her administrative remedies in a class action, and that three named plaintiffs have already done so.2 The Court agrees with plaintiffs.3
The Supreme Court in Honig v. Doe held that exhaustion of administrative remedies is
excused in cases brought under the IDEA where doing so would be futile or inadequate. 484
U.S. 305, 327 (1988). Exhaustion is excused on grounds of futility or inadequacy of
administrative remedies in three circumstances: “if (1) it would be futile to resort to the IDEA’s
due process procedures; (2) an agency has adopted a policy or pursued a practice of general
applicability that is contrary to the law; or (3) it is improbable that adequate relief can be
obtained by pursuing administrative remedies.” Murphy v. Arlington Central School District
Board of Education, 297 F.3d 195, 199 (2d Cir. 2002); Beth V. by Yvonne V. v. Carroll, 87 F.3d
2
The Court agrees that even if exhaustion of administrative remedies is required, plaintiffs have satisfied this requirement. The Court of Appeals for the District of Columbia Circuit has held that only one named plaintiff is required to exhaust his or her administrative remedies in civil rights class actions. See e.g. Hartman v. Duffy, 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 . . . .”); 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) (“we 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”).
3
In a separate Order today the Court will grant plaintiffs’ motion [5] for class certification, but even if this was not the case, defendants’ Motion [18] to Dismiss would still be denied.
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Case 1:05-cv-01437-RCL Document 53 Filed 08/25/06 Page 9 of 14
80, 88 (3d Cir. 1996); Association for Community Living v. Romer, 992 F.2d 1040, 1044 (10th Cir. 1993); Hoeft v. Tucson Unified School District, 967 F.2d 1298,1303-1304 (9th Cir. 1992); Heldman v. Sobol, 962 F.2d 148, 158-159 (2d Cir. 1992). A. Futility
In determining whether exhaustion of administrative remedies would be futile, courts look to whether the purposes of the pertinent administrative scheme would be furthered by requiring exhaustion in the particular case. McKart v. United States, 395 U.S. 185, 193 (1969). In Cox v. Jenkins, the Court of Appeals for the District of Columbia Circuit concluded that exhaustion serves two primary purposes in IDEA cases:
[T]wo sound policies support the requirement that plaintiffs exhaust administrative remedies before bringing federal actions. First, . . . [i]f the expert agency cannot resolve the problem finally, the record made in the administrative proceedings will be extremely helpful to the court, since the administrative agency will likely have probed the issue with more expertise than a federal court could bring . . . . Second, the states as well as the federal government have an interest in providing a means whereby official abuse can be corrected without resort to lengthy and costly trial.
878 F.2d 414, 419 (D.C. Cir. 1999). In this case, plaintiffs do not challenge an individual educational decision by DCPS
where agency expertise would be important. Cf., Polera v. Board of Education, 288 F.3d at 489 (2d Cir. 2002) (because case challenged “content of IEPs” which had “failed to spell out the services to be provided,” a hearing officer’s expertise would be useful to judicial resolution); Moss v. Smith, 794 F. Supp. 11, 13-14 (D.D.C. 1992) (hearing officer should have made educational placement decision for 1992-1993 school year). Instead, plaintiffs claim that defendants have a policy, pattern, and practice of failing to provide hundreds of pre-school
9

Case 1:05-cv-01437-RCL Document 53 Filed 08/25/06 Page 10 of 14
children in the District of Columbia with a FAPE because of their systemic failure to comply
with the federal and local Child Find requirements. (Pls.’ Opp’n 4-5.) Specifically, plaintiffs
allege that defendants lack “policies and procedures” on Child Find necessary to identify, locate,
evaluate and offer special education services to all disabled pre-school children. Plaintiffs also
allege that defendants’ failures are “widespread and systemic” and affect all disabled pre-school
children equally regardless of a particular child’s individual circumstances or educational needs.
(Id.)
This case is similar to other IDEA class actions where courts have excused exhaustion
because agency expertise and an administrative record would be of no help. In J.S. v. Attica
Central Schools, for example, the United States Court of Appeals for the Second Circuit excused
exhaustion in an IDEA class action, explaining:
We acknowledge . . . the importance of exhaustion in ‘textbook’ cases presenting issues involving individual children where the remedy is best left to educational experts . . .. However, the complaint in this case does not allow us to conclude that this is such a ‘textbook’ case [of exhaustion] . . . . The district court made clear that the complaint does not challenge the content of [IEP’s], but rather the School District’s total failure to prepare and implement [IEP’s]. . . . Further, the complaint contains additional allegations of systemic problems, including failure to perform timely evaluations; failure to provide parents with required procedural safeguards regarding identification, evaluation, and accommodation of otherwise disabled children; and failure to perform legally required responsibilities in a timely manner . . . .
386 F.3d 107, 114-115 (2d Cir. 2004); see also id. at 114 (collecting similar cases); McKart, 395
U.S. at 198-99 (exhaustion excused because question required no “particular expertise” and
“judicial review would not be significantly aided by that kind of additional administrative
decision”).
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Case 1:05-cv-01437-RCL Document 53 Filed 08/25/06 Page 11 of 14
The Court concludes that requiring exhaustion here would be futile because, given the nature of the claims presented, agency expertise would provide no benefit to the judicial resolution of this case.
In the alternative, the Court concludes that exhaustion may be excused in this case because requiring exhaustion here would not provide DCPS with the opportunity to take corrective action. See Cox, 878 F.2d at 419. Defendants have had ample notice of their Child Find failures and have nevertheless failed to remedy the problem if the allegations in the Amended Complaint are true, which the Court must assume for purposes of this motion.
On numerous occasions, the U.S. Department of Education (“DOE”), Office of Special Education Programs (“OSEP”), has notified defendants of their systemic failures to comply with Child Find requirements, including, inter alia, the requirement to transition toddlers from the District of Columbia Early Intervention Program (“DCEIP”) to DCPS special education services when they turn three years old (referred to as “Early Childhood Transitioning”). See, e.g., June 18, 2002, District of Columbia Monitoring Report, Pls.’ Opp’n, Ex. 1, at 4-5, 15-17 (concluding that defendants’ actions with respect to Child Find and Early Childhood Transitioning were not in compliance with IDEA standards). OSEP has informed DCPS on many occasions about their continued failures and non-compliance in these areas.4 Nevertheless, despite repeated
4
See, e.g., Letter from Troy R. Justesen, Acting Director, OSEP, to Clifford B. Janey, Superintendent, DCPS, Nov.2, 2005, p. 8 (failures regarding “Early Childhood Transition”) and p. 13 (failures regarding “Pre-school Performance Outcomes”)(Pl. Ex. 2); Letter from Troy R. Justesen, Acting Director, OSEP, to Clifford B. Janey, Superintendent, DCPS, Aug. 5, 2005, p. 2 (“your failure to provide timely initial evaluations and reevaluations . . . resulted in the Department imposing the FFY 2004 Special Conditions”)(Pl. Ex. 3); Letter from Patricia J. Guard, Acting Director, OSEP, to Clifford B. Janey, Superintendent, DCPS, Mar. 18, 2005, p. 9 (failures regarding Early Childhood Transitioning)(Pl. Ex. 4); Letter from Stephanie Smith Lee, Director, Office of Special Education Programs, to Yvonne Gilchrist, Director, Department of Human Services, Dec. 22, 2004, pp. 4-7 (failures regarding Child Find), pp. 11-12 (failures regarding Early Childhood Transitioning)(Pl. Ex. 5). In addition, on August 31, 2005, DCPS submitted its Annual State Application under Part B, in which it stated that it was not able to ensure that
11

Case 1:05-cv-01437-RCL Document 53 Filed 08/25/06 Page 12 of 14
notifications by OSEP, plaintiffs, and others, the Amended Complaint alleges that DCPS has
failed to take corrective action.5
This Court has concluded that DCPS’s failure to acknowledge errors and take corrective
action once notified may excuse exhaustion as well. In Massey v. District of Columbia, this
Court excused exhaustion in an IDEA case:
Because of DCPS’s repeated failures to follow unambiguous terms of the law and to acknowledge and correct its mistakes, this Court cannot find that DCPS’ process for administrative relief would be adequate. DCPS has provided this Court no basis on which to infer it is taking seriously the Masseys’ claims, nor to trust that it will be able to follow the IDEA in addressing those claims. . . . In this Court’s opinion, the litany of DCPS failures reveals that it is apparently unable to follow statutory procedures in the first place. Worse yet, DCPS appears to be incompetent to address, in the manner required by the IDEA, a parents’ complaints about those failures. Therefore, this Court finds that plaintiffs have demonstrated that pursing their claim through the administrative process would be inadequate . . . .
400 F. Supp. 2d 66, 73-74 (D.D.C. 2005).
As in Massey and the cases cited above, DCPS has received notice repeatedly about its
Child Find failures. Nevertheless, defendants have failed to take corrective action. The Court
therefore concludes that administrative remedies would be inadequate in this case. Accordingly,
exhaustion may also be excused on this ground.
B. Plaintiffs’ Motion to Strike Defendants’ Supplement
pre-school children in the Early Intervention Program were being transitioned to special education services once they turned three years old. See Pl. Ex. 6, p.3, #10.
5
Prior to filing this lawsuit, on May 26, 2004, counsel for plaintiffs met with Dr. Ray Bryant, the then head of special education at DCPS, to discuss DCPS’ Child Find failures. Dr. Bryant stated that Child Find was not a problem in the District of Columbia. See Affidavits of Jeffrey S. Gutman (para. 11), Margaret Kohn (para. 10), and Kathleen L. Millian (para. 8), attached as Pls.’ Exhibits 5, 7, and 8 to Pls.’ Motion for Class Certification.
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Case 1:05-cv-01437-RCL Document 53 Filed 08/25/06 Page 13 of 14
On January 17, 2006, and without seeking leave of the Court and without requesting an extension of time, defendants filed Defendants’ Supplement [34] to Their Reply to Plaintiffs’ Opposition to Defendants’ Motion for Dismissal of the Complaint for Failure to Exhaust Administrative Remedies. Plaintiffs move to strike Defendants’ Supplemental Reply as unnecessary and untimely. Defendants contend that the Federal Rules of Civil Procedure contains no rule expressly barring or limiting parties from filing supplemental briefing and that therefore supplemental briefing may be filed at their discretion. (Defs.’ Opp’n 2.) The Court concludes that defendants’ supplement is untimely.
Under Local Civil Rule 7(d), defendants have “five days after service of the memorandum in opposition” to file their reply. This deadline means that the entire brief, including affidavits and attachments, must be filed within five days. Parties may seek an extension of time if they cannot comply with the deadline in the Rules but cannot delay filing the supporting documents for their brief until whatever date they choose. See Federal Rule of Civil Procedure 6(b). In this case, defendants’ Supplemental Reply was filed three weeks later, on January 17, 2006. Defendants did not request leave to file their Supplemental Reply nor did they request an extension of time within which to file this Supplemental Reply. Therefore, defendants’ Supplemental Reply will be struck as untimely and filed without leave of the Court.6
CONCLUSION
6
Defendants’ Supplemental Reply also contains an argument made for the first time in defendants’ Reply. Defendants argued that plaintiffs’ case should be dismissed because DCPS does not have a “policy, pattern, and practice” of Child Find violations and because all prior Child Find problems have now been corrected. (See Defs.’ Reply 4-6.) Defendants should have included this argument in their motion to dismiss, rather than waiting to raise it in their Reply. See, e.g., Presbyterian Medical Center of the University of Pennsylvania Health Systems v. Shalala, 170 F.3d 1146, 1152 (D.C. Cir. 1999) (court need not consider an argument raised for the first time in reply brief); Norwood v. FERC, 962 F.2d 20, 25 (D.C. Cir. 1992) (“because the petitioner did not preserve the argument in its opening brief, we reject as untimely the petitioner’s attempt to raise the point in its reply brief”).
13

Case 1:05-cv-01437-RCL Document 53 Filed 08/25/06 Page 14 of 14 For the reasons stated herein, defendants’ motion to dismiss will be denied. Plaintiffs’ Motion [35] to Strike Defendants’ Supplement to their Reply shall be granted and Plaintiffs’ Consent Motion [36] to File a Sur-reply is denied as moot. A separate Order shall issue this date. Signed by Royce C. Lamberth, United States District Judge, August 25, 2006.
14

 
 Case 1:05-cv-01437-RCL Document 55 Filed 08/25/06 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DL1, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 05-1437 (RCL)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM OPINION

This matter comes before the Court on defendants’ Motion [19] to Dismiss the Section

504 Claim and defendants’ Motion [23] to Dismiss Defendant Superintendent Janey. Upon

consideration of these motions, the oppositions thereto, the reply briefs, the applicable law, and

the entire record herein, the Court concludes that defendants’ Motion [19] to Dismiss Section

504 Claim will be denied and defendants’ Motion [23] to Dismiss Defendant Superintendent

Janey will be denied.

BACKGROUND

The factual background of this case is laid out in detail in the Court’s Memorandum

Opinion [53] of August 25, 2006, denying defendants initial motion to dismiss.

Plaintiff filed suit under 42 U.S.C. 1983, the Individuals with Disabilities and Education

Act (“IDEA”), 20 U.S.C. 1400, et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a),

federal implementing regulations, the Due Process Clause of the federal Constitution, and

1
Pursuant to Local Civil Rule 5.4(f)(2), minors are identified by their initials in this Amended Complaint.
1

Case 1:05-cv-01437-RCL Document 55 Filed 08/25/06 Page 2 of 6
District of Columbia law, 5 D.C.M.R. 3002.1(d), 3002.3(a), on July 21, 2005. According to the IDEA, District of Columbia Public Schools (“DCPS”) has a duty, also known as the Child Find duty, to take steps to ensure that children with disabilities in the District of Columbia are identified, located, and evaluated, and given the opportunity to receive special education and related services. Plaintiffs allege that the DCPS, in failing to properly discharge its Child Find duty, has failed to provide a free appropriate public education (“FAPE”) to children ages three through five living in the District of Columbia as required by the IDEA. Plaintiffs seek an injunction requiring DCPS and Superintendent Janey to comply with the Child Find requirement of the IDEA, the Rehabilitation Act, and District of Columbia law and to provide a FAPE for preschool children in the District of Columbia.
On August 25, 2006, the Court granted plaintiffs’ motion [46] for Leave to File Plaintiffs’ First Amended Complaint. (See Docket #52.) The Amended Complaint removes two of the named plaintiffs because of changes that have occurred subsequent to the filing of the complaint. Plaintiffs have substituted XY, TL, and HW for OUL and DC. There are now seven named plaintiffs. (See Am. Compl. ¶¶ 19-38.)
By separate orders this date, this Court denied defendants’ motion [18] to dismiss the Complaint for lack of subject matter jurisdiction and granted plaintiffs’ motion [5] for class certification.
LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant
2

Case 1:05-cv-01437-RCL Document 55 Filed 08/25/06 Page 3 of 6
the plaintiff the benefit of all inferences that can be derived from the facts alleged. Conley v. Gibson, 355 U.S. 41, 45-46, (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). However, the Court need not accept asserted inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. The Court will dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.
DISCUSSION
A. Defendants’ Motion to Dismiss Rehabilitation Act § 504 Defendants argue that plaintiffs have failed to plead certain facts in support of their claim,
including facts relating to a prima facie case, “bad faith,” and “gross misjudgment.” (Defs.’ Mot. 6-7.) Plaintiffs counter by contending plaintiffs have met the pleading standard for Section 504 claims. (Pls.’ Opp’n 1-2.) The Court agrees with plaintiffs and finds that plaintiffs have included facts in the Amended Complaint that support each element of plaintiffs’ prima facie case.
Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a) provides 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.” In order to state a claim under Section 504 of the Rehabilitation Act in IDEA cases, plaintiffs must show that “something more than a mere failure to provide the ‘free and appropriate education’ required
3

Case 1:05-cv-01437-RCL Document 55 Filed 08/25/06 Page 4 of 6
by the [IDEA]’” has occurred. Walker v. District of Columbia, 157 F. Supp. 2d 11, 35 (D.D.C. 2001) (Friedman, J.) Generally, plaintiffs who show either “bad faith or gross misjudgment” can prevail under Section 504 for IDEA violations. Id. Liability will not be imposed so long as the “state officials involved have exercised professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals.” Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982).
Plaintiffs here have alleged sufficient facts to make a prima facie showing that defendants have “departed grossly” from accepted Child Find practice and standards. For example, several of the representative plaintiffs, including XY discussed above, have alleged that even after a favorable determination by a hearing officer, DCPS did not bring itself into compliance with the pertinent requirements.
Plaintiffs also maintain that defendants’ Child Find program “is grossly inadequate when compared to Child Find programs in the rest of the country.” (Id. ¶ 107.) A recent Department of Education study shows that the District of Columbia is ranked last among states in the provision of special education services to preschool children, ages three through five. (Id.) The defendants have not persuaded the Court that no reasonable fact finder could conclude that their conduct was grossly out of line with governing standards. The Court concludes that plaintiffs’ allegations are sufficient for a prima facie claim under Section 504 of the Rehabilitation Act. (Id. ¶¶ 3, 97-98, 106-107, 118.) B. Defendants’ Motion to Dismiss DCPS Superintendent Clifford Janey
Defendants argue that plaintiffs cannot sue Superintendent Janey in his official capacity
4

Case 1:05-cv-01437-RCL Document 55 Filed 08/25/06 Page 5 of 6
because the District of Columbia is a named defendant. (Defs.’ Mot. 3-5.) Plaintiffs respond by arguing under Rule 20(a) of the Federal Rules of Civil Procedure, well-established case law, and 42 U.S.C. § 1983, Superintendent Janey is a proper defendant. (Pls.’ Mot. 2.) The Court finds that Superintendent Janey is a proper defendant under § 1983.
In Monell v. Department of Social Services of the City of New York, the Supreme Court held that the fact that “local governments can be sued necessarily [means] that local government officials sued in their official capacities are ‘persons’ under § 1983 in those cases in which . . . a local government would be suable in its own name.” 436 U.S. 658, 691, n. 55 (1978). Contrary to defendants’ argument, government officials such as Superintendent Janey are not shielded from suit simply because the District of Columbia is also named. In Best v. District of Columbia, 743 F. Supp. 44, 49 (D.D.C. 1990), the Court determined that police officers sued in their official capacity could not be dismissed in a case where inmates had been videotaped without their consent and had alleged privacy violations. The Court reasoned that even though the District of Columbia was a defendant, “under Monell, District of Columbia officials are not immune from suit because the District of Columbia itself is liable as a ‘person.’” Id.
Defendants also contend that Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), applies because plaintiffs seek monetary damages as well as injunctive relief, even though they try to disguise their monetary damage claims with the label of “reimbursement” of out-of-pocket expenditures. (Defs.’ Reply 3.) The Court rejected this contention in the Memorandum Opinion [57] issued August 25, 2006, concluding that plaintiffs’ here claim only reimbursement for costs expended by parents to pay for evaluations or tuition. Such a claim is
5

Case 1:05-cv-01437-RCL Document 55 Filed 08/25/06 Page 6 of 6 permissible in an IDEA suit. (Id., at 9-10.) Burlington v. Department of Education, 471 U.S. 359, 370-71 (1985).
CONCLUSION For the reasons stated herein, the Court will deny defendants’ Motion [19] to Dismiss Section 504 Claim and defendants’ Motion [23] to Dismiss Defendant Superintendent Janey. A separate Order shall issue this date. Signed by Royce C. Lamberth, United States District Judge, August 25, 2006.
6

 
 Case 1:05-cv-01437-RCL Document 57 Filed 08/25/06 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DL1, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 05-1437 (RCL)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM OPINION

This matter comes before the Court on plaintiffs’ motion for class certification [5]. Upon

consideration of the motion, the opposition thereto, the applicable law, and the entire record in

this case, the Court will grant the plaintiffs’ motion.

BACKGROUND

Plaintiffs filed the present case, alleging that the District of Columbia Public Schools

(“DCPS”) failed in its duty to provide a free and appropriate public education (“FAPE”) to

children ages three through five living in the District of Columbia. Specifically, plaintiffs allege

that defendants have failed to identify, locate, evaluate, and offer special education and related

services to certain children in violation of, inter alia, the Individuals with Disabilities and

Education Act (“IDEA”), codified at 20 U.S.C. 1400, et seq., Section 504 of the Rehabilitation

Act, codified at 29 U.S.C. 794(a), 42 U.S.C. 1983.

The IDEA imposes on public schools a duty to “identify, locate, and evaluate” students

1
Pursuant to Local Civil Rule 5.4(f)(2), minors are identified by their initials in this Amended Complaint.
1

Case 1:05-cv-01437-RCL Document 57 Filed 08/25/06 Page 2 of 10
with disabilities (the “Child Find” duty). 20 U.S.C. § 1412(a)(3)(A) (2000). This duty requires that DCPS take steps to ensure that children with disabilities in the District of Columbia are identified and given the opportunity to receive special education and related services. Also, as part of their Child Find duty, defendants must (1) have adequate Child Find “policies and procedures” in place to identify, locate and evaluate children with disabilities, 34 C.F.R. § 300.125(a) (2005); (2) conduct comprehensive evaluations to test for disabilities, 20 U.S.C. § 1414; 34 C.F.R. §§ 300.530-300.536 (2005); (3) determine eligibility for special education and related services upon completion of these evaluations, id.; and (4) develop an Individualized Education Program (“IEP”) and an appropriate educational placement for those children ultimately found eligible for services, 20 U.S.C. § 1412(a)(4) (2000); 34 C.F.R. §§ 300.340300.350 (2005). This process must occur within the time frames and in accordance with the standards pertaining to referrals, evaluations, eligibility determinations, IEP’s and placements set forth in the IDEA and District of Columbia law.
Because of the alleged failure of defendants to perform their duties pursuant to the IDEA, plaintiffs request certification of a class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, in order to seek declaratory and injunctive relief. The plaintiffs seek an injunction requiring defendants to take appropriate steps to remedy the alleged violations of federal and District of Columbia law and to reimburse plaintiffs for the expenses of obtaining evaluations, special education and related services allegedly incurred as a result of defendants’ failure to comply with the IDEA.
Plaintiffs propose the following class definition: All children who are or may be eligible for special education and
2

Case 1:05-cv-01437-RCL Document 57 Filed 08/25/06 Page 3 of 10
related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive. Defendants argue that plaintiffs’ requested class “sprawls all over the map both factually and legally” and therefore does not meet pertinent class certification requirements. (Defs.’ Opp’n 1.)
DISCUSSION I. Class Certification
Rule 23 of the Federal Rules of Civil Procedure, which governs class certification, permits certification only if:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately represent the interests of the class. In addition, the party seeking certification must demonstrate that one of the relevant provisions of Rule 23(b) have been satisfied. Here, plaintiffs have requested class certification under Federal Rule of Civil Procedure 23(b)(2). Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” The plaintiffs bear the burden of establishing that there is a “reasonable basis for crediting [their] assertion[s]”as to each Rule 23 requirement. Wagner v. Taylor, 836 F.2d at 578, 587 n.57 (D.C. Cir. 1987); see also McCarthy v. Kleindienst, 741 F.2d 1406, 1414, n. 9 (D.C. Cir. 1984).
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The Court will address the class certification requirements separately. A. Rule 23(a) Requirements
1. Impracticability of Joinder Rule 23(a) requires that “the class [be] so numerous that joinder of all members is impracticable.” The court will examine each proposed class on its own facts and will not place a numerical floor on class size. General Tel. Co. v. Equal Employment Opportunity Comm’n, 446 U.S. 318, 330 (1980). To satisfy this requirement, this Court has repeatedly held that plaintiffs “need not provide the exact number of potential class members . . . .” Bynum v. District of Columbia, 214 F.R.D. 27, 33 (D.D.C. 2003); Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1988). However, courts have observed that “numerosity is presumed at a level of 40 members.” See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1993). Aside from class size, other “[r]elevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, . . . 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 (2d Cir. 1993). In 2003, there were 16,962 three through five year olds who were residents of the District of Columbia. (Pls.’ Mot., Ex. 1.) According to the U.S. Department of Education’s Office of Special Education’s statistics, only 301, or 1.77%, of these 16,962 received some form of special education or related services. The national average of the percentage of three through five year olds who received special education and related services in 2003 was 5.78%. (See Pls.’ Mot. Ex. 2, 3.) If the District provided services equal to the national average, 980 children would have been identified, located, evaluated and offered services in 2003, 674 more than the 301 children
4

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who received services that year. (Id.) This places the District of Columbia at the bottom of all states in the provision of special education services to three through five year old children. (See Id. Ex. 2, 3.) Though defendants argue otherwise, there is no reason to believe that the District of Columbia preschool population has less need for special education services than the nation on average, let alone the lowest need of any state in the nation.
The number of potential class members thus far exceeds 40. Pursuit of individual actions on behalf of each of these potential class members would be impracticable. Class certification would allow efficient use of judicial resources and uniform redress of the plaintiffs’ common grievances. The Court concludes that the numerosity is satisfied in this case.
2. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” It is not necessary that every issue of law or fact be the same for each class member. Forbush v. J.C. Penney, Inc., 994 F.2d 1101, 1106 (5th Cir. 1993). Variations among the legal theories underpinning claims of putative class members does not defeat the commonality requirement so long as a single aspect or feature of the claim is common to all proposed class members. Bynum v. District of Columbia, 214 F.R.D. 27, 33 (D.D.C. 2003) (Lamberth, J); Pendleton v. Schlesinger, 73 F.R.D. 506, 508 (D.D.C. 1977), aff’d, 628 F.2d 102 (D.C. Cir. 1980). Nor do factual variations among the claims of putative class members defeat commonality, so long as “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue.” Califano v. Yamasaki, 442 U.S. 682, 701 (1979). Here, all plaintiffs allege that defendants have violated the Child Find requirement set forth in the IDEA, the Rehabilitation Act, implementing regulations, and District of Columbia
5

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law. Plaintiffs also have a common injury, namely the denial of a FAPE under the IDEA. The plaintiffs maintain that their common injury can only be rectified by injunctive and declaratory relief from this Court. For their part, the defendants contend that plaintiffs have not shown that all class members share all claims and facts with each other. On a thorough review of the record, it does not appear that factual differences are likely to affect the disposition of the legal issues in this case. Thus, the Court concludes that Plaintiffs satisfy the commonality requirement.
3. Typicality Rule 23(a)(3) requires that class representatives have claims that are typical of all class members’ claims. In other words, the class representatives must have suffered a similar injury from the same impermissible practice. Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987). As with the commonality requirement, typicality is not defeated when there are “differences in the factual patterns underlying the claims or defenses of individual class members.” United States v. Trucking Employers, Inc., 75 F.R.D. 682, 688 (D.D.C. 1977) (citations omitted). Therefore, it is not necessary that each of the named plaintiffs be subjected to all of the methods by which the defendants denied services or failed to meet statutory requirements. The only requirement is that the named plaintiffs were injured by the same alleged systemic pattern of IDEA violations that allegedly injured the other class members, and that the named plaintiffs’ injury is typical of the other class members’ injuries. Again, defendants maintain that the factual variations among the claims of the named plaintiffs’ and the other members of the class defeat typicality. Here, named plaintiffs’ claims are based on the same legal theory as that of the class. They allege that defendants have deprived them of a FAPE, and otherwise violated the IDEA, Rehabilitation Act, federal implementing
6

Case 1:05-cv-01437-RCL Document 57 Filed 08/25/06 Page 7 of 10
regulations, the Due Process Clause, and District of Columbia law by failing to identify, locate, evaluate and offer them special education and related services as preschool children. They further allege that their injuries were caused by defendants’ pattern or practice of systemic violation of the pertinent laws. Differences among the plaintiffs’ “disabilities” do not undercut the typicality of their claims. The Child Find duty applies regardless of the child’s disability, and the injury suffered as a result of deprivation of the services guaranteed under the IDEA is the same for all. As this Court stated in Bynum, “demonstrating typicality does not mean showing that there are no factual variations between the claims of the plaintiffs. Rather, if the named plaintiffs’ claims are based on the same legal theory as the claims of the other class members, it will suffice to show that the named plaintiffs’ injuries arise from the same course of conduct.” 214 F.R.D. at 35.
The Court concludes that the typicality requirement is also satisfied in this case. 4. Adequacy of Representation Rule 23(a)(4) requires plaintiffs to establish that the class representatives are capable of fairly and adequately representing the interests of the class. For one thing, the interests of named plaintiffs in the litigation must not conflict with interests of other class members. Wagner, 836 F.2d at 595-96. Class representatives also must be able “to vigorously prosecute the interests of the class through qualified counsel.” National Ass’n of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 345 (D.C. Cir. 1976). Defendants do not dispute that counsel for the named plaintiffs are qualified in litigating civil matters, including class actions, and will vigorously prosecute this case. Instead, defendants contend that some of the named plaintiffs have not exhausted their administrative remedies, and
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that the claims of those who have exhausted their administrative remedies are now moot. The Court has already rejected the defendants’ exhaustion argument in denying their motion to dismiss for lack of jurisdiction, concluding that exhaustion is waived on grounds of futility and inadequacy. See Mem. & Op. [53], issued August 25, 2006, at 9-12.
The Court also rejects defendants’ mootness contention. The Supreme Court has unequivocally held that even if the named plaintiffs’ individual claims are moot, the class action is not necessarily mooted. Sosna v. Iowa, 419 U.S. 393, 399, 402 (1975). Nothing suggests that the representative plaintiffs will not provide the sort of adversary presentation necessary to satisfy Article III. See id. Moreover, even if the representative plaintiffs’ claims were mooted by the provision of administrative relief, such relief is not a change in the governing law that would call into question the propriety of allowing this case to proceed as a class action. See Kremens v. Bartley, 431 U.S. 119, 123 (1977). The Court need not address the question of whether certain representative plaintiffs’ claims are in fact moot, a merits question, at the class certification stage of this litigation.
Because plaintiffs have demonstrated that there are no conflicts of interest between the named plaintiffs and the other proposed class members, the Court concludes that plaintiffs have satisfied the adequacy requirement of Rule 23(a). B. Rule 23(b)(2) Requirements
Under Federal Rule of Civil Procedure 23(b)(2), an action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and if
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the
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class as a whole . . . . Plaintiffs argue that defendants have acted or failed to act on “grounds generally applicable to the class” and that “final injunctive or corresponding relief” befits the class. (Pls.’ Mot. 16-17.)
Plaintiffs here have pointed to practices which, if proven, constitute a pervasive pattern and practice of failing to identify, locate, evaluate and offer them services and that defendants lack an adequate Child Find system. Plaintiffs further note that defendants’ systemic failures deny them a free appropriate public education and entry into the special education system, which can only be remedied by injunctive and declaratory relief from the Court. Plaintiffs’ allegations that defendants maintain a continuing practice of failing to fulfill their Child Find duty is sufficient to satisfy the Rule 23(b)(2) requirement.
Defendants argue maintain a Rule 23(b)(2) certification is unwarranted because the plaintiffs’ reimbursement claims amount to claims for money damages. The Supreme Court in Burlington v. Department of Education, 471 U.S. 359 (1985), expressly rejected this argument, concluding that reimbursement of special education expenses incurred as a result of an IDEA violation was not “damages” because reimbursement “merely requires the [defendant] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.” Id. at 370-371. See also Florence County School District Four v. Carter, 510 U.S. 7 (1993) (reimbursement available as equitable remedy for private school placements). And, even if the reimbursement claims could fairly be construed as claims for money damages, the class may nevertheless be certified so long as the damages request does not “predominate” over other forms of relief requested. Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997). Indeed, courts regularly certify Rule 23(b)(2) classes in IDEA
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cases where similar reimbursements are requested. See, e.g., Petties v. District of Columbia, 881 F. Supp. 63 (D.D.C. 1995); D.D. v. New York City Bd. of Educ., 2004 WL 633222 at * 13 (E.D.N.Y. March 30, 2004).
The Court concludes that plaintiffs satisfy the requirements for Rule 23(b)(2) certification.
CONCLUSION For the reasons set forth above, the court will grant plaintiffs’ motion for class certification and adopt the following class definition:
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive. A separate order shall issue this date. SO ORDERED.
Signed by Royce C. Lamberth, United States District Judge, August 25, 2006.
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 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DL1, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-1437 (RCL)

MEMORANDUM OPINION

This matter comes before the Court on plaintiffs’ Motion [91] to Compel defendants’ responses to Plaintiffs’ First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs’ First Set of Interrogatories, and for expenses pursuant to Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure and defendants’ Motion [95] to Compel Discovery. Upon consideration of plaintiffs’ motion [91], defendants’ opposition [97], plaintiffs’ reply [101], and defendants’ motion [95], plaintiffs’ opposition [98] and defendants’ reply [99], and the entire record herein, plaintiffs’ motion [91] will be GRANTED IN PART and DENIED IN PART and defendants’ motion [95] will be DENIED.

I. BACKGROUND Plaintiffs filed the present suit on July 21, 2005, alleging that defendant District of
1 Pursuant to Local Civil Rule 5.4(f)(2), minors are identified by their initials in the Amended Complaint.
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Columbia (“District”) failed in its duty to provide a free and appropriate public education (“FAPE”) to children ages three through five living in the District. Specifically, plaintiffs allege that the District has failed to identify, locate, evaluate, and offer special education and related services to certain children in violation of, inter alia, the Individuals with Disabilities and Education Act (“IDEA”), codified at 20 U.S.C. 1400, et seq., Section 504 of the Rehabilitation Act, codified at 29 U.S.C. 794(a), 42 U.S.C. 1983.
Plaintiffs served their First Set of Requests for Production of Documents (“Plaintiffs’ First Document Request”) on December 28, 2005. (See Pl.'s Mem. Ex. A.) The District filed its Response (“Response to Plaintiffs’ First Document Request”) on January 27, 2006. (See Pl.’s Mem. Ex. D.) This response included a set of fifteen “boilerplate” objections entitled “General Objections.” (Id. at 1-2.)
On July 10, 2006 plaintiffs filed a Motion [41] to Compel Defendants’ Responses to Plaintiffs’ First Set of Requests for Production of Documents. On August 1, 2006, the District filed its Motion [45] to Compel Discovery Production of Documents by Plaintiffs. On August 25, 2006 this Court certified the case to proceed as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and denied without prejudice plaintiffs’ Motion [41] to Compel and District’s Motion [45] to Compel, subject to the parties’ consideration of the impact of class certification and opportunity to meet and confer to resolve remaining differences. (See Ct. Order [59].)
On September 17, 2007 plaintiffs served Plaintiffs’ Second Set of Requests for Production of Documents (“Plaintiffs’ Second Document Request”). (See Pl.'s Mem. Ex. B.) On October 17, 2007, the District served its Response (“Response to Plaintiffs’ Second Document
2

Request”), which included the same list of “General Objections.” (Pl.'s Mem. Ex. F at 1-2.). On September 28, 2007 plaintiffs served Plaintiffs’ First Set of Interrogatories (“Plaintiffs’ First Interrogatories”) and Third Set of Requests for Production of Documents (“Plaintiffs’ Third Document Request”). (See Pl.'s Mem. Ex. C.) On October 29, 2007 the District served Defendants’ Response to Plaintiffs’ First Set of Interrogatories (“Response to Plaintiffs’ First Interrogatories”) (See Pl.'s Mem. Ex. G), and Defendants’ Response to Plaintiffs’ Third Set of Requests for Production of Documents (“Response to Plaintiffs’ Third Document Request“). (See Pl.'s Mem. Ex. H.) The District’s responses to Plaintiffs’ First Interrogatories and Third Document Request repeated many of the “General Objections” raised by the District in previous responses. (See Pl.'s Mem. Ex. G, 1-4; Pl.'s Mem. Ex. H, 1-3.)
The District has charitably characterized the nature of its production of documents as “rolling”( Pl.'s Mem. Ex. I, 1) or “continuing.” (Def’s Opp’n 2). Plaintiffs conducted an initial review of documents on February 1, 2006. (Pl.'s Mem. 4.) Subsequent to that review, during the period spanning between February 28, 2006 and January 30, 2008, the District provided ten supplemental responses to plaintiffs’ document requests. (Id. at 4-5.) Notably, of the seventeen documents provided in the District’s Tenth Supplemental Production of January 30, 2008, eight are from 2006 or before. (Id. at 5-6.)
On February 4, 2008 plaintiffs filed a Motion [91] to Compel Defendants’ Responses to Plaintiffs’ First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs’ First Set of Interrogatories, and requested the Court order the District to pay plaintiffs’ reasonable expenses incurred in making the motion to compel, including attorneys’ fees, pursuant to Rule 37(a)(1). Plaintiffs’ motion was followed, on March 6, 2008, by the District’s Eleventh
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Supplemental Production, which contained more than 6000 pages of responsive documents. (See Def.’s Opp’n Ex. A, 43-51.) Plaintiffs’ motion was also followed by an opposition [97] filed March 10, 2008, and a reply [101] filed March 25, 2008.
On February 27, 2008, the District filed a Motion [95] to Compel Discovery. The District’s motion was followed by an opposition [98] filed March 12, 2008, and a reply [99] filed March 18, 2008.
II. DISCUSSION A. Legal Standard Trial courts have considerable discretion when handling discovery matters. Food Lion
Inc. v. United Food and Commercial Workers Int'l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997) (citing Brune v. Internal Revenue Serv., 861 F.2d 1284, 1288 (D.C. Cir. 1988)). The scope of discovery in civil actions is broad, allowing for discovery regarding any nonprivileged matter that is relevant to a claim or defense. See Fed. R. Civ. P. 26(b)(1). The term relevance at the discovery stage is broadly construed to include information which is not admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. See id. All discovery is subject, however, to the limitations imposed by Rule 26(b)(2)(C). Furthermore, discovery of matters not "reasonably calculated to lead to the discovery of admissible evidence" are not within the scope of discovery. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978) (internal citation omitted).
Rule 37 of the Federal Rules of Civil Procedure provides that "[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or
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discovery." Fed. R. Civ. P. 37(a)(1). B. District’s General Objections are Invalid “The party objecting to . . . discovery bears the burden of ‘show[ing] why discovery
should not be permitted.’ ” Alexander v. F.B.I., 194 F.R.D. 299, 302 (D.D.C. 2000) (Lamberth, J.) (quoting: Alexander v. FBI, 193 F.R.D. 1, 2-3 (D.D.C. 2000)). A party objecting to a document request must “includ[e] the reasons” for the objection. Fed. R. Civ. P. 34(b)(2)(B). This requirement enables the requesting party to evaluate and determine whether to challenge the objection raised. When faced with general objections, the applicability of which to specific document requests is not explained further, “[t]his Court will not raise objections for [the responding party],” but instead will “overrule[] [the responding party’s] objection[s] on those grounds.” Tequila Centinela, S.A. de C.V. v. Bacardi & Co., Ltd., 242 F.R.D 1, 12 (D.D.C. 2007) (Lamberth, J.).
Similarly, “[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4).
The District begins each of its responses to plaintiffs’ discovery requests with a list of boilerplate “general objections.” (See Pl.’s Mem. Exs. D, F, G, H.) The District fails to explain with any specificity how these general objections are applicable to particular discovery requests. For example, the District responds to forty-three of the forty-four requests contained in Plaintiffs’ First Document Requests by stating: “[s]ubject to the General Objections above, the District will produce documents responsive to this request.” (See Pl. Mem. Ex. D.) This standardized response is varied in only three instances: twice through the addition of the phrase “if any” (Id. at
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Responses 16, 43), and once through the addition of the phrase “[s]ee also responses to other requests.” (Id. at Response 9.) The answer provides no indication as to the specific nature or amount of material being withheld on the basis of the general objections.
The District takes a similar approach in responding to Plaintiffs’ Second Document Request. Of the five responses, four make reference to various of the general objections, without elaboration or explanation. (See Pl. Mem. Ex. F., Responses 2-5.) The remaining response makes the same sweeping reference to general objections common to the District’s response to Plaintiffs’ First Document Request. (Id. at Response 1.)
The District’s response to Plaintiffs’ First Interrogatories also begins with a list of eighteen general objections. (See Pl.’s Mem. Ex. G.) The responses that follow frequently reference individual general objections without explanation or elaboration. Several refer plaintiffs to the entire body of documents disclosed to date (Pl.’s Mem. 32), without specifying which particular documents are responsive to the interrogatories. (Pl.’s Mem. Ex. G., Responses 1, 5, 6, 7, 8.) Other responses refer plaintiffs to the District’s pleadings or other documents produced. (See Pl.’s Mem. Ex. G, Responses 1, 2, 5, 6.) The District’s Response to Plaintiffs’ Third Document Request continues the same pattern of making nonspecific reference to a list of general objections
Before discussing in greater detail several of the general objections as raised in response to specific discovery requests, the Court notes that the District’s “boilerplate” general objections to plaintiffs’ discovery requests, without more, fail to satisfy the District’s burdens under the Federal Rules of Civil Procedure to justify its objections to discovery. The District’s general objections are not applied with sufficient specificity to enable this court to evaluate their merits.
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In situations such as these, this Court will overrule District’s objections in their entirety. Accordingly, all of the District’s general objections, when not referenced in response to specific discovery requests, are overruled. The District shall not rely on any general objection as a basis for withholding further discovery.
C. District’s Remaining Objections 1. District’s Objection to Production of Documents Created Before 2003
Throughout their discovery requests, plaintiffs have requested documents created from 2000 to the present. Plaintiffs correctly assert that to prevail in their § 1983 action, they must establish a “custom or practice” that caused the alleged violation. Indeed, “[i]n any § 1983 action against a municipality such as the District of Columbia, the burden is on the plaintiffs to establish that the municipality has a custom or practice that caused the alleged constitutional or statutory violation.” Johnson v. District of Columbia, 190 F. Supp. 2d 34, 47 (D.D.C. 2002); see also Walker v. District of Columbia, 969 F.Supp 764, 797 (D.D.C. 1997). Plaintiffs have satisfied their burden of demonstrating the relevance of documents from 2000 to the present to the case at bar. (See Pl.’s Mem. 14-16). In the opinion of this Court, discovery of documents for the fiveyear period prior to the initiation of the present action is not unreasonable. The burden thus shifts to the District, as the objecting party, to show why discovery of documents created prior to 2003 should not be permitted.
The District argues the court should not compel discovery of these documents on three grounds. First, the District directs the Court’s attention to various individual employment discrimination cases in which shorter discovery windows were found reasonable. (Def.’s Opp’n 7-8.) Given the facts of the case and the nature of plaintiffs’ claims, the Court finds this
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argument unpersuasive. Second, the District argues that production of documents created prior to 2003 would be
unduly burdensome. (Id. at 8-9, 16-18.) In considering this objection, the Court notes an apparent divergence between the parties with respect to the nature and extent of documents predating 2003 in contention. (Compare Pl.’s Mem. Ex. H, Request 3 (“All documents, including but not limited to, case files, that pertain to any inquiry made to defendants by parents or others made on behalf of a disabled preschool child, prior to the time that such parent signed the ‘consent to evaluate’ form. This includes any documentation of communication such as telephone calls, in-person visits, faxes, correspondence, meetings, e-mails, and the like regarding special education services.”) (emphasis added) and Def.’s Opp’n Ex. H, Response 9 (declaration of burden of compiling individual records on “3,332 students who have been determined eligible for special education services”) with Pl.’s Reply 7 (“with the exception of a limited number of sample student files that defendants have already agreed to provide, plaintiffs’ requests regarding unnamed class members have been limited to requests for aggregate data and policies affecting the entire class.”) Given the language of the plaintiffs’ reply, and the Court’s order [106] of June 2, 2008 granting the parties’ Joint Motion [104] for Order to Produce Documents, the Court understands the remaining objection, on the ground of burdensomeness, to production of documents predating 2003 – if any – to be limited to an objection to the production of such documents responsive “to requests for aggregate data and policies affecting the entire class.” (Pl.’s Reply at 7.)
This Court “only entertains an unduly burdensome objection when the responding party demonstrates how [discovery of] the document is ‘overly broad, burdensome, or oppressive, by
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submitting affidavits or offering evidence which reveals the nature of the burden.’” Tequila Centinela, 242 F.R.D. at 10 (quoting Fisher v. Network Software Associates, 217 F.R.D. 240, 246 (D.D.C. 2003)). Because none of the declarations brought to the Court’s attention assert the burden of providing aggregate data, or information regarding policies affecting the entire class, prior to 2003, the District has waived any objection to production of such data compiled from 2000 to the present.
Third, the District argues that discovery of documents predating 2003 should not be compelled because plaintiffs “have expressly disclaimed seeking damages for the alleged violations on which they rely.” (Def.’s Opp’n 9.) The District cites no legal authority in support of this argument, which the Court declines to adopt.
Accordingly, the District’s objection to the production of documents containing aggregate data or other information regarding policies affecting the entire class and generated from 2000 to the present are overruled wherever raised. The District cannot rely on this objection to withhold any documents from plaintiffs.
2. District’s Objections on the Grounds of Privilege The District invokes two categories of privilege as grounds for withholding discovery. First, it asserts a deliberative process privilege. (See Response to Plaintiffs’ First Document Request, General Objection 3; Response to Plaintiffs’ Second Document Request, General Objection 3; Response to Plaintiffs’ Third Document Request, General Objection 3.) Second, the District objects more generally to the production of “documents that are protected from disclosure by the attorney-client privilege, the attorney work-product doctrine, or any other applicable privilege, immunity or protection.” (See Response to Plaintiffs’ First Document Request, General
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Objection 4; Response to Plaintiffs’ Second Document Request, General Objection 4; Response to First Interrogatories, General Objection 11, Response 1; Response to Plaintiffs’ Third Document Request, General Objection 4.)
“When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must . . . describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that . . . will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5) (emphasis added). This obligation is met through the provision of a privilege log.
In its discussion of the deliberative process privilege, the District’s memorandum in opposition to plaintiffs’ motion makes no effort to argue that the District has provided a log sufficient to satisfy its obligations under Rule 26(b)(5). (See Def.’s Opp’n 9-12.) Nor does the District assert a privilege log has been provided with respect to documents withheld under any other claim of privilege. It bears noting that the District’s opposition does not even discuss any claim of privilege aside from deliberative process. Even the most detailed description of the claims of privilege – provided to plaintiffs the day before the deadline to file their underlying motion to compel, and called to the Court’s attention by plaintiffs in their reply (Pl.’s Reply Ex. T) – fails to describe the actual documents being withheld, the specific privilege asserted, or how that privilege is applicable. The District has clearly failed to satisfy its obligations under Rule 26(b)(5). Accordingly, all the District’s “blanket objections on the basis of privilege shall be rejected.” U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 235 F.R.D. 521, 523 (D.D.C. 2006) (Lamberth, J.); see also, e.g., Lohrenz v. Donnelly, 187 F.R.D. 1, 6-7 (D.D.C. 1999) (Lamberth, J.) (denying plaintiff's assertion of privilege because of her failure to provide a
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privilege log). The District’s objections on the basis of privilege are overruled wherever raised; and the District shall not rely on privilege as a grounds for withholding any documents or other information from plaintiffs.
3. District’s Objections Regarding Lead Paint Abatement Programs Plaintiffs have requested discovery of “[a]ll documents that identify children ages two through five years old who were identified during the course of any lead abatement program administered by the District of Columbia since 2000.” (Pl.’s Mem. Ex. B, Request 2.) Plaintiffs assert such information is relevant “because long-term studies of children exposed to lead early in life have associated lead poisoning with the need for special education services due to impaired neurobehavioral functioning.” (Pl.’s Mem. 10 (citing Schwarz J., Societal Benefits of Reducing Lead Exposure, ENVTL. RES. 66:105-24 (1994))). The District objects to this request on two grounds. First, the District continues its objection to production of documents that predate 2003. As discussed above, this objection is overruled. The District next argues that this discovery request is “[a]t most . . . marginally relevant,” and should be denied because it is overly burdensome. (Def.’s Opp’n 13.) The District’s contention as to the burdens associated with this request are supported by the declaration of an employee of the District Department of the Environment (“DDOE”). (See Def.’s Opp’n Ex. E.) The Court is satisfied that discovery of information regarding children identified through lead abatement programs appears reasonably calculated to lead to the discovery of admissible evidence, and is therefore an appropriate area for discovery. See Fed. R. Civ. P. 26(b)(1). However, the Court also concludes that the burdens and expense associated with an individualized review of the documents in the control of DDOE likely outweigh the resulting benefit. See Fed.
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R. Civ. P. 26(b)(2)(C)(iii). Accordingly, the District will not be compelled to conduct such a review. The District’s review of documents in the control of DDOE will be limited to a search for documents containing aggregate data or other information or policies that are responsive to plaintiffs’ requests.
Plaintiffs further assert in their reply that departments or agencies of the District other than the DDOE likely have documents responsive to plaintiffs’ request. (Pl.’s Reply 11.) Rule 34 allows any party to serve on any other party a request to produce for the inspection of the requesting party, any designated documents or data compilations from which information may be obtained within the scope of Rule 26(b), that are in the possession, custody or control of the party upon whom the request was served. See Fed.R.Civ.P. 34(a). “With regards to the term ‘control,’ it has been well established that the test for control is not defined as mere possession, but as the legal right to obtain such documents on demand. Tequila Centinela, 242 F.R.D. at 8 (quoting Alexander, 194 F.R.D. at 304). Defendant District of Columbia has such control with respect to documents in the possession of its agencies other than DDOE. Accordingly, the District will be ordered to disclose any documents in its control, responsive to request 2 of Plaintiff’s Second Document Request, regardless of which agency of the District may be in actual possession of such documents.
4. District’s Relevance Objections The District indicates it is relying on an objection as to the relevance of the request to withhold discovery in response to requests 2, 3, 4 and 5 of Plaintiffs’ Second Document Request. (See Pl.’s Mem. Ex. F.) Aside from request 2 regarding lead paint abatement, which this court has already addressed, the District does not explain why it believes the requested material is not
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relevant. Instead, the District simply references its general objection 5. (See id.) This type of answer hides the ball. It leaves the plaintiff wondering what documents are being produced and what documents are being withheld. Furthermore, it permits the defendant to be the sole arbiter of that decision. Such an objection is really no objection at all as it does not address why potentially responsive documents are being withheld.
Athridge v. Aetna Cas. and Sur. Co., 184 F.R.D. 181, 190 (D.D.C. 1998). Further, the relevance of requests 3, 4 and 5 is obvious to the Court. Accordingly, the District’s objections as to the relevance of these requests are overruled.
5. District’s Objections for Undue Burden The District’s catalog of general objections also includes an objection on the basis of an alleged undue burden that would be occasioned by production (General Objection 9 to Plaintiffs’ First, Second and Third Document Requests, Pl.’s Mem. Exs. D, F, H; Defendants’ Response to Plaintiffs’ Interrogatories, Pl. Ex. G, Response 9.) “This court does not accept such arguments without specific estimates of staff hours needed to comply.” Association of American Physicians and Surgeons, Inc. v. Clinton, 837 F.Supp. 454, 458 n.2 (D.D.C.1993) (Lamberth, J.). Except with respect to its objection with regard to production of information regarding lead abatement, as addressed above, the District has not provided any such supporting information. The District’s remaining burdensome objections are overruled.
6. District’s Objections for Lack of Possession, Custody, or Control The District’s responses to plaintiffs’ discovery requests also include a boilerplate objection on the grounds that the requests seek “documents not in existence or not in the District’s possession, custody, or control.” (General Objection 7 to Plaintiffs’ First, Second, and Third Document Requests, Pl.’s Mem. Exs. D, F, H.). The District references this general objection in
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responses 3, 4 and 5 to Plaintiffs’ Second Document Request (Pl.’s Mem. Ex. B.) The District cannot be ordered to turn over something that is not within its possession,
custody or control. Rule 34 specifies that any designated documents or data compilations from which information may be obtained within the scope of Rule 26(b), that are in the possession, custody or control of the party upon whom the request was served, are subject to discovery. See Fed.R.Civ.P. 34(a). If a document is not in the possession, custody or control of a party, then it clearly cannot be turned over. Cf. Fed.R.Civ.P. 34(a). However, the Court shares plaintiffs’ skepticism that there are no documents responsive to the requests at issue within the control of the District. This matter will be addressed when the District conducts a thorough and complete search for all responsive documents as a result of the Court’s order to issue this day.
7. Objection as to Vagueness In its responses to requests 3, 4 and 5 of Plaintiffs’ Second Document Request (Pl.’s Mem. Ex. B.), and interrogatory 9, the District references a general objection that plaintiffs’ discovery requests are vague. The District has not sought clarification or indicated the aspects of the requests at issue which it was unable to comprehend, and has thus waived this objection. The Court also notes the requests – on their face – are neither vague, ambiguous, nor unintelligible. Accordingly, the District’s objections as to vagueness are overruled, wherever raised.
8. Objection Regarding Information on non-Named Plaintiffs The District refused to respond to request 4 of Plaintiffs’ Third Document Request on the ground that it sought information related to “individuals other than the six children who are named plaintiffs.” This objection was overruled by the Court’s order [106] of June 2, 2008, granting the parties’ joint motion [104] for an Order to Produce Documents. The District shall
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produce documents responsive to Plaintiffs’ requests pursuant to that order [106] and the Amended Protective Order [105] issued the same day.
D. The District’s Compliance with its Document Production Obligations has been Inadequate
The record leads the Court to conclude that the District’s performance of its discovery obligations to date has been completely inadequate. With respect to document production, it is clear that the District “decided it would file an incomplete answer and then supplement it whenever it pleased . . . The court condemns this litigation tactic and will not tolerate it in future responses in this case.” Association of American Physicians, 837 F.Supp. at 458. Even as information was gradually produced, the District’s responses to plaintiffs’ document requests have been incomplete and its objections to production almost exclusively unfounded. The District’s cavalier disregard for its document production obligations is demonstrated in the deposition of the individual responsible for producing documents in the custody of the Early Childhood division of the CARE Center:
Q: So if a document was covered by a request but you didn’t think that it was relevant to the case, you didn’t provide it; isn’t that right? A: That’s correct, sir. (Pl.’s Mem. Ex. K, 183.) In addition, plaintiffs present a persuasive argument that the District may have destroyed and may be continuing to destroy documents likely relevant to this litigation. (See Pl.’s Mem. 3032). This seems particularly likely with respect to email messages. While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible
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evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request. Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F.Supp.2d 27, 34 n.3 (D.D.C. 2004) (Lamberth, J.) (quoting Jeanblanc v. Oliver T. Carr Co., 1992 WL 189434, *2 (D.D.C. 1992)). In its opposition, the District indicates that “out of an abundance of caution the undersigned counsel have requested a formal ligation hold on any emails with any posible relevance to this case, as well as making a sweeping request to OCTO for an email search for relevant emails regarding this case.” (Def.’s Opp’n 23.) However, as plaintiffs point out, as of January 15, 2008, District counsel had not given the individual responsible for document production at the CARE center any instruction to retain emails related to this suit. (See Pl.’s Ex. K, 14.) Accordingly, and consistent with this opinion and the Federal Rules, the District will be compelled to review each of plaintiffs’ document requests, to perform a complete and thorough search for responsive documents, including emails and faxes, and to provide responsive documents to plaintiffs. In addition, the District will be ordered, upon completion of discovery, to certify to the court that it has responded fully to all document requests and that no other responsive documents exist as of the time of certification. D. The District’s Responses to Plaintiffs’ Interrogatories are Inadequate The District’s responses to plaintiffs’ interrogatories are similarly inadequate. The District provided narrative responses only to four of the sixteen interrogatories, and even these appear seriously deficient. A party to whom an interrogatory is propounded "must provide true, explicit, responsive, complete, and candid answers." Equal Rights Center v. Post Properties, Inc., 246 F.R.D. 29, 32 (D.D.C. 2007) (Lamberth, J.) (quoting Hansel v. Shell Oil Corp., 169 F.R.D. 303,
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305 (E.D.Pa. 1996)). One of the primary "purpose[s] of discovery is to make a trial ‘less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent possible'...." Id. A party frustrates this purpose when it refuses to answer proper interrogatories. Id. Because Rule 33(b)(1) requires a party to answer each interrogatory "fully," it is technically improper and unresponsive for an answer to an interrogatory to refer to outside material, such as pleadings, depositions, or other interrogatories. Id. at 35 (quoting 7-33 Moore's Federal Practice-Civil § 33.103.).
Most of the District’s responses to plaintiffs’ interrogatories improperly refer to its pleadings or other documents produced. Several refer plaintiffs to the District’s entire document production to date, without identifying those documents that are responsive to the interrogatory in question. As one court has observed:
Under the guise of Fed.R.Civ.P. 33(d) defendants may not simply refer generically to past or future production of documents. They must identify in their answers to the interrogatories specifically which documents contain the answer. Otherwise they must completely answer the interrogatories without referring to the documents. They may produce their business records to answer part of an interrogatory, if they otherwise fully answer the other parts. Pulsecard, Inc. v. Discover Card Services, Inc. 168 F.R.D. 295, 305 (D.Kan. 1996). “This Court believes that discovery is not the appropriate time to obtain an opponent's witness list and that plaintiff properly invoked the work product privilege with respect to this interrogatory.” Equal Rights Center, 246 F.R.D.at 36 (D.D.C. 2007). Therefore, with respect to interrogatory three, the District will not be compelled to supplement its answer. However, on the whole the Court finds the District’s responses to plaintiffs’ interrogatories inadequate. Accordingly, except with respect to interrogatory three, the District will be compelled to review each of plaintiffs’ interrogatories and provide complete and accurate
17

responses thereto. In responding, the District shall not make reference to the pleadings or other produced documents, unless such reference clearly indicates how the documents in question are responsive to the interrogatory. Further, the District’s responses shall not decline to provide a complete and accurate answer to any of plaintiffs’ interrogatories on the grounds of any general objection or other objection raised.
E. Plaintiffs are Entitled to an Award of Expenses Under Rule 37 Plaintiffs’ motion before the Court also included a request “to order defendants’ [sic] to pay plaintiffs’ reasonable expenses incurred in making plaintiffs’ Motion to Compel, including attorneys’ fees, pursuant to Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure.” (Pl.’s Mot. 1.) “Under Rule 37, the district court has broad discretion to impose sanctions for discovery violations, and to determine what sanctions to impose.” Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 248 F.R.D. 64, 68 (D.D.C.,2008) (Lamberth, J.) (citing Kister v. District of Columbia, 229 F.R.D. 326, 329 (D.D.C.2005)). In relevant part, Rule 37 provides: If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). This Court has previously observed that “the language of the Rule itself is mandatory, dictating that the Court must award expenses upon granting a motion to compel disclosure unless one of the specified bases for refusing to make such an award is found to exist.” Cobell v. Norton, 226 F.R.D 67, 90 (D.D.C. 2005). In the case at bar, the District filed approximately 6,000 pages of responsive documents more than one month after
18

plaintiffs filed the underlying motion to compel. (Pl.’s Reply 22-23.) This conduct alone merits the imposition of sanctions under Rule 37(a)(5)(A).
Setting aside the District’s provision of significant discovery after plaintiffs filed their motion, the award of plaintiffs’ attorney’s fees would also be merited under Rule 37(a)(5)(C), which provides that when a motion to compel is granted in part and denied in part, the Court may “apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). The District argues that sanctions should not be imposed either because its opposition to discovery was “substantially justified,” or because an award of expenses would be otherwise “unjust.” (Def.’s Opp’n 23-26.) See also Fed. R. Civ. P. 37(a)(5)(C)(ii) and (iii). These arguments are without merit.
“The Supreme Court has stated that a party meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Alexander v. FBI, 186 F.R.D. 144, 147 (D.D.C. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). With two minor and narrow exceptions, today the Court substantially grants plaintiffs’ motion in its entirety. The Court’s overwhelming decision for the plaintiffs on the merits of their motion is sufficient to show that the District’s objections were not substantially justified. The Court finds that reasonable people could not differ as to the appropriateness of the bulk of plaintiffs’ motion. Indeed, the District’s pattern of tardy and piecemeal disclosure, and the fact that approximately 6,000 pages of responsive documents were turned over after plaintiffs’ renewed motion to compel was filed, demonstrate that filing a motion to compel was the only adequate remedy available to plaintiffs. Nor was there a “genuine dispute” with respect to the vast majority of plaintiffs’ requests. Indeed, many of the objections
19

raised by the District were plainly inapplicable. Nor is the Court persuaded by the District’s argument that the award of attorney’s fees
under the present circumstances would be “unjust.” In particular, the District argues that “[t]he financially hard-pressed school system should not be saddled with such expenses, especially at a time of reform under [] new leadership.” (Def.’s Opp’n 24-25.) The District further argues that granting the plaintiffs’ motion “may undermine the effects of the new Mayor of the District government and those now charged with the administration of the school system to meet challenges that have gone unmet for many years.” (Id. at 26.) This line of argument ignores the reality that – if anything – it is the conduct of the District that has led the court to grant plaintiffs’ motion and award costs, and not the act of granting the motion, that is the true culprit undermining the effects of new leadership and reform.
Finally, the District mentions the Congressionally imposed cap2 on attorney’s fees in actions brought against the District in suits under the IDEA and notes that the extent and manner to which that cap is applicable to class action suits was, at the time of the District’s filing, sub judice before another court of this District. (Def.’s Opp’n 25-26.) The District neither argues that the cap should apply in the case of plaintiffs present motion, nor explains the result of applying the cap to the present motion, if it were applicable. Those issues are not presently before this Court.3 The Court of Appeals for this circuit has established that a previous iteration of the same
2The current version of this cap appears in the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 2040.
3The Court notes, without comment, that the question referenced in the District’s opposition was subsequently decided adversely to the District. See Petties v. District of Columbia, 538 F.Supp.2d 88 (D.D.C. 2008).
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fee cap limited only the authority of the District to pay attorney’s fees, not the authority of the courts to award such fees. Calloway v. District of Columbia, 216 F.3d 1, 9 (D.C. Cir. 2000). Because today’s order addresses the award of fees, and not the payment thereof, issues raised by the payment of fees are beyond the scope of this opinion.
Accordingly, plaintiffs’ request for an award of reasonable expenses, including attorney’s fees, shall be granted and plaintiffs shall file a request for an amount within 10 days. The District shall have 10 days from the filing of plaintiffs’ request to file its opposition.
F. District’s Motion to Compel The District also filed a motion to compel plaintiffs to disclose certain categories of documents. Specifically, the District seeks an order from this Court compelling plaintiffs’ responses to requests 5, 27(b), 30, 31 and 35 of Defendants’ Document Request. (Def.’s Mem. 2.) In its reply, the District clarifies that its motion to compel seeks documents “relating to unnamed class members, not documents from unnamed class members.” (Def.’s Reply 2) (emphasis in original.) In response, plaintiffs “state unequivocally that they have no non-privileged responsive documents that have not already been produced concerning the unnamed class members.” (Pl.’s Opp’n 4.) If a document is not in the possession, custody or control of a party, then it clearly cannot be turned over. Cf. Fed.R.Civ.P. 34(a). Plaintiffs also provided the District with three privilege logs as discovery proceeded. (See Def.’s Mem. 31-43; Pl.’s Opp. 4 n.2.) The District has challenged neither the sufficiency of the logs nor the withholding of any of the listed documents. Accordingly, the District’s motion to compel will be denied.
III. CONCLUSION
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For the reasons set forth above, plaintiffs’ Motion [91] to Compel will be granted in part and denied in part. Defendant’s Motion [95] to Compel will be denied.
A separate order shall issue this date. SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, June 27, 2008.
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 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 OPINION

Now before the Court is plaintiffs’ motion [110] for attorneys’ fees and expenses. Upon

consideration of the motion, the opposition, the reply, the entire record herein, and applicable

law, the motion will be GRANTED in part and DENIED in part for the reasons set forth below.

I. BACKGROUND This case is a class action on behalf of disabled pre-school children in Washington, D.C.
The plaintiffs allege that defendants have failed to identify, locate, evaluate, and offer special education and related services in violation of 42 U.S.C. § 1983, the Individuals with Disabilities and Education Act.
On December 28, 2005, plaintiffs served defendants with plaintiffs’ first set of requests for production of documents. After the defendants objected to numerous production requests, the plaintiffs filed a motion to compel. Following the Court’s class certification of the plaintiffs’ action, the Court denied the motion to compel without prejudice and ordered the parties to consider the impact of the decision on class certification and meet and confer, in person, through
1

counsel, to seek and resolve any remaining differences. (Docket No. [59].) Following further requests for the production of documents and the plaintiffs’ numerous unsuccessful attempts to get the defendants to comply with their discovery obligations, the plaintiffs filed a second motion to compel.
On June 27, 2008, the Court granted in part and denied in part1 plaintiffs’ motion to compel plaintiffs’ first, second, and third requests for production of documents and plaintiffs’ first set of interrogatories and directed plaintiffs to file a request for an amount of reasonable attorneys’ fees and expenses incurred in filing plaintiffs’ motion. (Docket [108] at 5.) The Court found that the District’s objections to discovery requests were “almost exclusively unfounded,” that its objections were not “substantially justified,” and that the District had displayed a pattern of “tardy and piecemeal disclosure.” (Mem. Op. [107] at 15, 19.) The Court also found that Federal Rule of Civil Procedure 37(a)(5)(A) mandates that the plaintiffs be awarded reasonable attorneys fees and costs in this case. (See id. at 18.)
The plaintiffs’ fee request is currently before the Court. Plaintiffs request $287,146.17 in fees and expenses for their counsel’s work and expenses negotiating discovery, researching and drafting the two motions to compel, and preparing this fee petition. After reviewing the briefs, the time records, and the District’s objections, the Court finds that a total fees and expenses award of $114,319.42 is appropriate and reasonable in this case.
1The Court “substantially grant[ed] plaintiffs motion in its entirety.” (Docket [107] at 19.) The Court agreed that the defendants had to comply with every aspect of the plaintiffs’ discovery requests with two exceptions: (1) the Court held that the District did not have to do an individualized search of lead abatement data, it only had to do a search for aggregate data (Id. at 11–12); and (2) the Court held that discovery is not an appropriate time to obtain an opponents’ witness list, as plaintiffs had requested. (Id. at 17.)
2

II. ANALYSIS A. Applicable Law Federal Rule of Civil Procedure 37(a)(5) states that if a motion to compel “is granted—or
if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses in making the motion, including attorney’s fees.” “Under Rule 37, the district court has broad discretion to impose sanctions for discovery violations” and to determine what sanctions to impose. Bonds v. District of Columbia, 93 F.3d 801, 807 (D.C. Cir. 1996). The purpose of the rule is “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). Accordingly, awarding attorneys’ fees to the plaintiffs in this case is not only warranted, but required by the language of Rule 37(a)(5).2
The initial estimate for attorneys’ fees is calculated by “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.”3 Blum v. Stenson, 465 U.S. 886, 888 (1984). A strong presumption exists that the product of these two variables—the “lodestar figure”—represents a reasonable fee. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986).
2Defendants did not dispute plaintiffs’ statement that the attorneys’ fees statutory cap in the Individuals with Disabilities Education Act does not apply in the Rule 37 context.
3This Court has previously observed that “[a]lthough this [lodestar] idea is simple in theory,” its focus on the billable hour “creates the loathsome task of wading through pages of time entries to determine compensation.” United States, ex rel. Miller v. Bill Harbert Intern. Const., Inc., 2009 WL 481644 at *2, n.9 (D.D.C. February 26, 2009).
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B. Reasonable Rate The Court first must determine the rates that will apply to plaintiffs’ hours. Plaintiffs and defendants agree that an “updated Laffey matrix” should supply the rates that will apply to the attorneys’ hours. See Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983). The parties disagree as to which version of the Laffey matrix should apply, however. “While use of the Laffey Matrix has been upheld by our Circuit since 1988, there are two different versions of it used as proof of the prevailing market rates in federal court litigation in the District of Columbia.” Smith v. District of Columbia, 466 F. Supp. 2d 151, 155 (Kessler, J.) (D.D.C. 2006). The version of the matrix advocated by the plaintiffs is updated by using “the legal services component of the CPI [Consumer Price Index] rather than the general CPI.” Id. at 156. The matrix advocated by the defendants is maintained by the Civil Division of the United States Attorney’s Office and “calculates the matrix rate for each year by adding the change in the overall cost of living, as reflected in the United States Consumer Price Index for the Washington, D.C. area for the prior year.” Id. In other words, the updated Laffey matrix based on the legal services index has the advantage of being specifically targeted at legal services, while the USAO index has the advantage of being specifically targeted at the Washington, D.C. area. And, of course, the Laffey matrix advocated by the plaintiffs results in higher rates. Although the Circuit has not expressed a preference regarding the matrix that should be used, a survey of the district court cases in this Circuit demonstrates that because the fundamental attorneys’ fees question is whether or not a fee award is “reasonable,” the Court can
4

use its discretion in applying the matrix that results in the most reasonable award.4 For example, one member of this Court has applied the updated Laffey matrix based on the legal services index, stating that it is “more accurate” because it is “based on increases/decreases in legal services rather than increase/decreases in the entire CPI which includes price changes for many different goods and services.” Smith v. District of Columbia, 466 F. Supp. 2d at 156. This Court, however, recently held that the legal services matrix reflects national inflation trends, while the USAO matrix accounts for price inflation within the local community, a crucial distinction because the Court of Appeals and the Supreme Court have both emphasized that the lodestar should focus on the relevant community. Miller v. Holzmann, 575 F. Supp. 2d 2, 17 (D.D.C. 2008) (Lamberth, J.) (citing Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Covington v. District of Columbia, 57 F.3d 1101, 1108 (D.C. Cir. 1995)).
Other judges, while acknowledging that applying the legal services Laffey index is discretionary, have also not applied the legal services index matrix for various reasons. For example, the Court in Muldrow v. Re-Direct, Inc., declined to award Laffey rates based on the legal services index despite the attorneys’ exceptional skill, experience, and reputation because the work was done in a “relatively straightforward negligence suit.” 397 F. Supp. 2d 1, 4 (D.D.C. 2005) (Huvelle, J.). Similarly, in American Lands Alliance v. Norton, the Court stated that “heightened complexity” was required to depart from the standard Laffey matrix. 525 F. Supp. 2d 135, 149 (D.D.C. 2007) (Walton, J.) That Court declined to depart from the standard
4Indeed, the Circuit itself has suggested that the trial court should have discretion in determining the appropriate rates. See Covington v. District of Columbia, 57 F.3d 1101,1109 (D.C. Cir. 1995) (“Plaintiffs may point to such evidence as an updated version of the Laffey matrix or the U.S. Attorney’s matrix, or their own survey of prevailing rates in the community.”).
5

matrix despite work that included a review of the administrative record, drafting a complaint, and drafting a motion for summary judgment in an Endangered Species Act case, which the Court stated was “no small feat.” Id.
In this case, the Court also declines to depart from the standard (USAO) Laffey matrix.5 In addition to the fact that the USAO matrix is more in line with precedent because it is based on the local community, see supra, the work to be compensated in this case was not particularly complex. Counsel’s tasks included drafting discovery motions to compel, negotiating with the District in a discovery dispute, and drafting a fee petition. Although the attorneys for plaintiffs have deftly performed their tasks, a discovery dispute is not the type of complex work that gives rise to use of the enhanced Laffey matrix. Much like the attorneys in American Lands Alliance, plaintiffs’ attorneys in this case have not justified the use of the enhanced Laffey matrix by showing the nature and complexity of the work; they simply argue that the enhanced matrix is more accurate. Id. at 150. However, the case law in this Circuit is not so conclusive, and, in fact, in the typical case the standard Laffey matrix has garnered approval. See id. at 149 (cataloguing cases that have approved the standard Laffey matrix).
C. Reasonable Hours After determining that the USAO matrix should supply the relevant rates, the Court must determine whether or not the requested hours are reasonable. A fee petitioner must submit
5The USAO matrix rates (often used when attorneys do not have established billing rates) are as follows: $465 an hour for an attorney with 20 or more years of experience, $410 for 11–19 years, $330 for 8–10 years, $270 for 4–7 years, and $225 for 1–3 years. (Pl.’s Ex. 13, Docket [135–4].) Accordingly, Terris, Pravlik & Millian LLP attorneys Bruce Terris, Kathleen Millian, and Carolyn Smith Pravlik received compensation at $465 an hour, S. Shina Majeed at $330 an hour, Alexander Karam and Janice Gorin at $270 an hour, and Emily Benfer at $225 an hour. Margaret Kohn and Jeffrey Gutman received compensation at $465 an hour.
6

documentation supporting its fee request, and the documentation must be sufficiently detailed to permit the Court to make a determination of whether the claimed hours are justified. Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). The district court can exercise discretion in reducing the fee award by specific amounts in response to specific objections. Donnell v. United States, 682 F.2d 240, 250 (D.C. Cir. 1982). The Court can also reduce fees “by a reasonable amount without providing an item-by-item accounting.” Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004). In this case, the plaintiffs have provided substantial time records, and have also included purported justifications for the high fees in this case. Indeed, one reason the fees were so high in this case was because of the District’s obstinance and “tardy and piecemeal” production. For example, on the eve of the plaintiffs’ deadline to file the second motion to compel, the defendants produced over 600 pages of responsive documents. Due to the late production, the plaintiffs were forced to seek an extension of time and “make substantial edits to a brief that was otherwise ready for filing on the deadline.” (Pl.’s Mot. [110] at 3.) In addition, much of the “negotiation fees” billed by the plaintiffs were for hours spent writing letters to the District urging them to comply with their discovery requirements; many of these letters received no response. (See Pl.’s Mot [110] at 3.) Nevertheless, even taking into account the District’s conduct, and even taking into account the plaintiffs’ voluntary reduction of of $40,713.056, the plaintiffs’ fee request is excessive for the amount of work produced and the nature of the dispute and also includes numerous categories of non-compensable time.
1. Non-Compensable Time
(6 See docket [110-3], Terris Aff. ¶ 9.) 7

First, the District argues that the plaintiffs should only be compensated for its work on the second motion to compel, not for its work on the first motion to compel, which was dismissed without prejudice. This argument has merit, under the explicit language of Rule 37(a)(5), which only awards fees if the motion to compel is granted or if the disclosure or requested discovery is provided after the motion to compel is filed. The Rule also requires that in the event fees are awarded the Court make a determination that the opposing party’s nondisclosure was not substantially justified.
With regard to the plaintiffs’ first motion to compel, it was denied without prejudice. Much of the District’s refusal to turn over class documents in response to the first motion to compel was also, if not correct, at least substantially justified because the Court had not yet certified the case as a class action. Accordingly, much of the plaintiffs’ fees with regard to the first motion to compel are not recoverable.
Nevertheless, some of the research and writing regarding plaintiffs’ first motion to compel was still relevant and used in plaintiffs’ second motion to compel. The District acknowledges that “it very well might be that some of the time plaintiffs’ spent on [the first] motion may have supported the motion that they were ultimately successful on . . . .” (Defs.’ Opp’n 4.) However, the District asserts that there is no way to determine how much work was relevant and therefore fees for all work on the first motion to compel should be denied. In contrast to the District’s claim, the Court can estimate how much work on the first motion was relevant to the second motion by doing a side-by-side comparison, with the help of the plaintiffs’ attorney declaration. (See Pl.’s Reply [135-3] at 6–9.) From the Court’s review, it appears that approximately 25% of the plaintiffs’ initial motion to compel and reply to the first motion to
8

compel was relevant to the second motion to compel.7 This work was used to help draft the
second motion to compel, and the plaintiffs should not be denied this compensation merely
because they performed the work at an earlier time. Accordingly, plaintiffs will be awarded 25%
of their fees for researching and drafting the first motion to compel.
The reduction for time spent on the first motion to compel also applies to time spent
negotiating document production. The District states that it “does not assert that effort spent
attempting to resolve discovery matters without resort should not be recoverable here.” (Defs.’
Opp’n at 3–4.) The Court will therefore award fees for plaintiffs’ attempts to resolve the
discovery disputes. See also Whatley v. District of Columbia, 224 F. Supp. 2d 62, 65 (D.D.C.
2002) (granting fees incurred in good faith negotiations that were aimed at avoiding getting the
Court involved in a discovery dispute). However, as with the work on the actual motions, the
District points out that the plaintiffs should not be compensated for the bulk of their work
negotiating the first motion to compel. The Court agrees and therefore will reduce plaintiffs’
total negotiating fees by 30%.8
7Approximately 8 out of 24 pages were dedicated to the fact that plaintiffs are entitled to discovery of documents pre-dating 2003 an issue that the plaintiffs ultimately prevailed on. In addition, in the reply brief, 5 out of 22 pages were directly relevant to the pre-2003 document issue, while the plaintiffs also included other details of the defendants’ discovery missteps that were later relevant in the second motion to compel. (See docket entries [41] and [50].) Plaintiffs acknowledge that the “much longer section [of their first motion to compel] regarding class certification issues was largely irrelevant” following the Court’s denial of the first motion. (Docket [135-3], Supp. Aff. of Terris at ¶ 17(a).)
8The plaintiffs spent approximately 61 of the 101 negotiation hours on the second motion to compel. (Pl.’s Reply at 15–16.) This would equate to a 40% reduction, but the Court awards plaintiffs an additional 10% to reflect a portion of the time spent negotiating issues with regard to the first motion to compel in which the District’s position was not substantially justified and that the plaintiffs later had to renew the issue in a second motion to compel. (See supra at 8) (approximately 25% of the work on the first motion to compel was relevant to the second motion
9

Finally, the Court must subtract the fees for time spent on issues on which the plaintiffs
did not ultimately prevail. See INS v. Jean, 496 U.S. 154, 163 n.10 (1990) (“[F]ees for fee
litigation should be excluded to the extent that the applicant ultimately fails to prevail in such
litigation.”). With regard to the motions to compel, the Court ultimately concluded that the
plaintiffs essentially fully prevailed. However, with regard to the fee petition, the plaintiffs did
not prevail on substantial portions of their fee petition. Plaintiffs’ fee request for time spent on
the fee petition is $69,460.95. (See Pl.’s Reply [135-11] at 1.) However, the Court rejected the plaintiffs’ request to use the Laffey matrix based on legal services index.9 The plaintiffs also did
not prevail on their argument that they were entitled to the full fees billed while drafting the
initial motion to compel and negotiating the issues surrounding the initial motion to compel.
Additionally, the Court partially agreed with the defendants that the plaintiffs’ time entries are vague. See infra. Finally, the Court finds that 240.710 hours generating $70,000 in fees merely to create a discovery dispute fee petition is per se unreasonable.11 See, e.g., Fabi Constr. Co. v.
Sec’y of Labor, 541 F.3d 407, 414 (D.C. Cir. 2008) (reducing 236.8 hours of attorney time on fee
to compel). 9From the Court’s review of the briefs and supporting materials, the plaintiffs spent
approximately 33% of their fee petition hours arguing for the updated Laffey matrix that was rejected by the Court.
10See Docket [135-16] at 6; Docket [135-17] at 2–3. The plaintiffs spent 63.31 hours on the initial brief prior to July 18, 2008. They then spent an additional 54.41 hours on the initial brief after July 18, as well as 5.78 hours reading the opposition and 117.22 hours working on the reply.
11Reviewing the time entries relating to the fee petition also demonstrate excessive research. For example, on 8/25/08, 8/26/08, and 8/27/08, ARK billed approximately 15.5 hours to researching Laffey rates, block billing, and adequate descriptions. The Court finds this amount of research unreasonable in light of the relatively simple nature of fee petition law in this Circuit.
10

application by 50% because nearly six 40-hour weeks of attorney time is unreasonable); American Wrecking Corp. v. Sec’y of Labor, 364 F.3d 321, 331 (D.C. Cir. 2004) (stating that 118 hours spent compiling the fee application was excessive and reducing fees by 50%). Accordingly, to account for the fact that the plaintiffs did not prevail on the majority of their arguments and billed excessively for their work on the fee petition, the Court will reduce the requested $69,460.95 for preparing the fee petition by 75%.
2. Across-the-Board Reductions After the Court has subtracted out non-compensable time, the Court can conduct further across-the-board percentage reductions as appropriate when a large number of entries suffer from one or more deficiencies. Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004). Defendants state that the first defect in plaintiffs’ time entries is the use of block billing, which makes “it impossible for the court to meet its responsibility of determining with a high degree of certainty that the hours billed were reasonable.” Role Models v. Brownlee, 353 F. 3d 962, 970 (D.C. Cir. 2004). Block billing is most egregious when the fee petitioner has only prevailed on a portion of their claims; block billing makes it impossible for the Court to separate out the constituent tasks and decide how much to award the petitioner. Here, the plaintiffs prevailed on substantially all of their arguments regarding the second motion to compel. Accordingly, block billing is not a serious problem with regard to plaintiffs’ initial billing records that do show some minor instances of block billing.12 As for the fee petition billing hours, for which block billing would present a significant problem, plaintiffs apportioned the amount of
12See Docket [110-8]. Additionally, the instances of block billing do not appear nearly as egregious as those that have been chastised previously by this Court.
11

time they spent on each task, making it easy for the Court to review their records.13 The Court will not make an across-the-board reduction for block billing.
Defendants also object that the billing entries suffer from inadequate detail. (Defs.’ Opp’n 7.) Defendants object to entries such as 26.88 hours billed to “research and draft motion to compel”; “draft motion to compel”; and “edit motion to compel.” (Id.) The plaintiffs respond that these time entries are sufficiently detailed to permit recovery. Indeed, there is some support for the plaintiffs position, as “there is certainly no need for [an attorney] to itemize every case she looked up or every paragraph she labored over. Trial courts must recognize how lawyers work and how they notate their time.” Smith v. District of Columbia, 466 F. Supp. 2d 151, 158 (D.D.C. 2006) (Kessler, J.). However, as that opinion recognizes, “the ultimate inquiry is whether the total time claimed is reasonable.” Id. Accordingly, when a Court is “outraged by a fee petition that [is], by any standard, extraordinarily high,” it can scrutinize the fee petitioner’s time records with a more demanding eye. See id.
For that reason, in Role Models America, Inc. v. Brownlee, the D.C. Circuit reduced a request of approximately $345,000 in fees and expenses to $83,236. 353 F. 3d at 968, 975. In that opinion, the Court stated that in light of such a high request for a limited amount of work produced on a relatively run-of-the-mill matter, entries such as “research and writing for appellate brief” were insufficient for lack of adequate detail. See id. at 972.
This case possesses many of the same characteristics as Role Models. The motion to compel arose out of a “garden-variety” discovery dispute. See id. at 969. No legal issues
13See e.g., Docket [135-13] at 7, ARK, 8/28/2008, “Revise motion for extension and file via ECF (20 min); confer with CSP re adequacy of time records issue (14 min); conduct legal research re market rates (1 hr 5 min)”.
12

presented in the discovery dispute were particularly novel or complex. It is unclear to the Court how discovery negotiations, a motion to compel, and a fee petition presenting the claim for those attorneys’ fees could have resulted in over $200,000 in fees. In other words, the Court finds the amount of the fee request unreasonable on its face and, like the Court in Role Models, is not convinced otherwise by generic descriptions such as “draft reply brief.”14 Accordingly, the Court will further reduce the plaintiffs’ lodestar by 10% for vague time entries. See also Miller v. Holzmann, 575 F. Supp. 2d 2, 36 (D.D.C. 2008) (reducing lodestar by 10% for vague time entries).
D. Summary of Fees and Fee Reductions Plaintiffs requested $287,146.17 in fees and expenses for their counsel’s work. The Court found that this request was subject to numerous reductions. First, the Court determined that the USAO Laffey matrix would supply the relevant rates because the work involved was not complex enough to warrant the enhanced Laffey matrix advocated by the plaintiffs. Next, the Court found that plaintiffs were only entitled to a small portion of the work on their first motion to compel because that motion was made before class certification and was denied without prejudice. Therefore, the Court will only award 25% of the fees requested relating to the first motion to compel. With regard to the negotiation fees, the Court has awarded 70% of the requested amount, taking into account that the negotiation fees with regard to the first motion to compel should largely not be compensable. Finally, the Court reduced the fee petition fees by 75% to reflect the excessiveness of the time charged and the issues upon which the plaintiffs did not ultimately prevail. After subtracting out the issues that are not compensable, the Court
14See Docket [135-13] at 7–8. 13

scrutinized all other fees and expenses.15 The Court found that a 10% reduction was warranted for vague time descriptions. Following all applicable reductions, the plaintiffs’ total award for fees and expenses is $114,319.42. (See Appendix 1.) The Court finds that in light of the attorneys’ skill and experience, and the nature of the work involved, that this amount is reasonable. III. CONCLUSION
Upon consideration of the plaintiffs’ motion [110] for attorneys’ fees and expenses, the opposition, and the reply, applicable law, and the entire record herein, the motion will be GRANTED in part and DENIED in part. Plaintiffs will be awarded a total of $114,319.42.
A separate order shall issue this date. SO ORDERED.
Signed by Chief Judge Royce C. Lamberth on March 11, 2009.
15The District did not object to plaintiffs’ expenses and they were not reduced. 14

Summary of Fees and Expenses7

Terris, Pravlik & Millian, LLP
Margaret A. Kohn Jeffrey S. Gutman Subtotal Fees Total Fees

Negotiation re Motions to Compel 30% reduction to all negotiation work1 Work on First Motion to Compel
75% Reduction for work on First Motion to Compel2 Work on Second Motion to Compel
Plaintiffs' voluntary reduction to Second Motion to Compel work Fees work 75% reduction to all fees work3 First Motion to Compel
75% reduction to all work on First Motion to Compel4 First and Second Motion to Compel 65%5 reduction to all work

Fees Using USAO Rates
$28,804.85
($8,641.45) $41,812.78
($31,359.59) $106,760.10
($31,817.52) $69,460.95
($52,095.71) $279.00
($209.25)
$1,534.50 ($997.26)

10% global reduction6

$123,531.40 ($12,353.14)

$111,178.26

Total Expenses

Total Award: $114,319.42

$3,141.16

1 (Mem. Op. at 9.) 2 (Mem. Op. at 8.) 3 (Mem. Op. at 10.) 4 (Mem. Op. at 8.) 5 This figure estimates the appropriate reduction for Gutman’s work on the First Motion to Compel. 6 (Mem. Op. at 12.) 7 Requested figures were taken from Docket [135-11].

 
 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 OPINION Before the Court is Defendants’ Motion [181] to Strike Report and Testimony of Dr. Leonard Cupingood, Along with All Evidence Based Thereon. Upon consideration of the motion, plaintiffs’ opposition [184] thereto, defendants’ reply brief [190], and plaintiffs’ surreply brief [191-2], the Court will deny the motion for the reasons set forth below. I. BACKGROUND The Court set out the background of this case in its memorandum opinion issued this same date regarding defendants’ motion for summary judgment and plaintiffs’ motion for partial summary judgment on liability. At issue here is the testimony of plaintiffs’ statistical expert, Dr. Leonard A. Cupingood. Dr. Cupingood reviewed data from two databases, covering the time period of 2000 to 2009, to assess the number of children in the District ages 3 to 5 “with suspected disabilities who were to be assessed for their eligibility for special education and related services.” (Bernard R. Siskin and Leonard A. Cupingood, Statistical Analysis of Timeliness of Assessment of Eligibility for Special Education Services for Children Aged Three to Five in the District of Columbia Public

1

Schools 2000-2008 (April 2009) (“Cupingood Report”) at 2.) Before beginning his analysis, Dr.
Cupingood “cleaned” the data by, inter alia, “consolidating approximately 130 records having a
complete duplication of all information except for the student ID.” (Cupingood Aff., May 18,
2010 (“Cupingood Aff.”) at ¶ 8.) Dr. Cupingood then analyzed the data, the results of which the
Court relied on in its summary judgment opinion issued this same date.
II. LEGAL STANDARD
The Court may qualify an expert on the basis of his “knowledge, skill, experience,
training, or education.” FED. R. EVID. 702. Plaintiffs have the burden of establishing by a
preponderance of the evidence that the expert is so qualified and that the testimony is admissible.
Meister v. Med. Eng’g Corp., 267 F .3d 1123, 1127 n.9 ( D.C. Cir. 2001); FED. R. EVID. 702
advisory committee’s notes to 2000 amend.
The relevant Federal Rules of Evidence governing expert testimony state:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as a n expert . . . may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon s ufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
FED. R. EVID. 702.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
FED. R. EVID. 703.
III. DISCUSSION
2

As a preliminary matter, plaintiffs argue that the Court may postpone ruling on this motion until trial. (Pls.’ Opp’n at 14.) The Court, however, relies on Dr. Cupingood’s testimony in its summary judgment order issued this same date. Accordingly, the Court will rule on t he admissibility of Dr. Cupingood’s opinions now, and it will not wait until any possible trial.
A. QUALIFICATION AS AN EXPERT First, defendants challenge Dr. Cupingood’s qualification as a “programming or data expert.” (Defs.’ Mot. at 10; Defs.’ Reply at 3.) Plaintiffs contend that he is such an expert. The Court agrees with defendants. The Court may look directly to Dr. Cupingood’s testimony in determining whether the expert is so qualified, see United States v. Pansier, 576 F.3d 726, 738 (7th Cir. 2009), as well as other evidence. Dr. Cupingood testified only that he has “more than 35 years of experience with computers, computer programming and databases.” (Cupingood Aff. at ¶ 13.) He was also a court-appointed consultant to the U.S. District Court for the Eastern District of Pennsylvania, where he “advised the court regarding the adequacy of a computer system . . . .” (Pls.’ Ex. K at 2; Pls.’ Ex. L at 27.) Finally, Dr. Cupingood has been qualified as an expert in other courts to testify “regarding database construction and programming.” (Cupingood Aff. at ¶ 13.) Although Dr. Cupingood may in fact be an expert in computer programming, plaintiffs have not met their burden of establishing his expertise. They have cited sparse evidence of his experience, and Dr. Cupingood has conclusively stated that he has 35 years experience, without further explanation of what that experience entails. Accordingly, the Court finds that Dr. Cupingood is not qualified as an expert in computer programming. Second, defendants concede that Dr. Cupingood is an expert in statistics. (Defs.’ Mot. at 10 (“Dr. Cupingood is a statistical expert.”); Defs.’ Mot. at 12.) Dr. Cupingood has an extensive
3

resume to support this expertise. Accordingly, the Court finds that Dr. Cupingood is an expert in statistics.
B. BASIS OF EXPERT OPINION Defendants challenge the basis upon which Dr. Cupingood formed his expert opinion. Specifically, defendants allege that: (1) Dr. Cupingood’s opinions are based upon improperly ‘cleaned,’ and therefore useless, data; (2) Dr. Cupingood is not the author of the report submitted in his name, nor did he perform the calculations described therein; and (3) in any event, the matters on which Dr. Cupingood purports to opine are not properly the subjects of statistical expertise, as the Court is perfectly able to evaluate these data and decide these issues without expert assistance or, at most, with the very limited assistance of a co mputer-programming expert. (Defs.’ Mot. at 1.) Defendants further allege in their reply that Dr. Cupingood’s charts and tables summarizing his calculations are inadmissible. The Court will address these arguments in turn.
1. Dr. Cupingood Did Not Rely on Improperly “Cleaned” Data. Defendants argue that Dr. Cupingood improperly eliminated potentially duplicate records, so the data on which he based his opinion was improperly “cleaned.” Plaintiffs argue that Dr. Cupingood’s decision to eliminate these records was based on generally accepted statistical methods and did not significantly affect his conclusions. The Court agrees with plaintiffs. Dr. Cupingood received extracts from two databases (“ENCORE” and “SEDS”) to perform his analysis. (Cupingood Report at 2.) Of all of the 12,340 entries in these databases, there were 130 records for which there was “complete duplication of information, as identified by having the same date of birth, year, referral date, eligibility status, eligibility date, initial IEP date, notice of placement date, hearing request date, hearing decision dates, services provided date and services,” and in which the “duplicate records were associated with more than one student ID.” (Id. at 7.) Dr. Cupingood concluded that “[w]hile it is theoretically possible that
4

such duplicate information could be valid (e.g., identical twins for whom the referral and other dates were exactly the same), it is unlikely that they would have the exact same services provided on t he same dates.” (Id.) Before reaching this conclusion, Dr. Cupingood asked plaintiffs’ attorney for his thoughts on the matter, and attorney Alexander Karam responded that he thought it was more likely that these were duplicate entries than identical twins. (Defs.’ Ex. B; Defs.’ Ex. A at 109-10.) Because Dr. Cupingood concluded that these were duplicate entries, he “only counted such student records once, instead of multiple times.” (Cupingood Report at 7.) Dr. Cupingood stated that these entries were not necessarily duplicates in every instance, but it was more likely than not that they were mostly duplicates. (Defs.’ Ex. A at 82-83.)
Dr. Cupingood stated that this is a common way for a statistician to ensure the accuracy of his work: “[P]rior to conducting analyses, a statistician should examine the database provided for inconsistencies, duplicate information, erroneous data entries, and other situations where the database (or portions of the database) just do not make sense.” (Cupingood Aff. at ¶ 7.) This is logical. Based on s olely the Court’s common sense, it would appear that, based on t he large amount of duplicative information in these entries, the majority of these entries were in fact duplicates.
Defendants also argue that Dr. Cupingood relied on a computer programmer named Bryan Niederberger to assist him with “cleaning” the data. (Defs.’ Mot. at 9.) Even if Dr. Cupingood relied on Mr. Niederberger to help write computer code and carry out analyses, the Court finds that such reliance is permissible. An expert may rely on evidence if “of a type reasonably relied upon” by experts in the field, FED. R. EVID. 703, and this evidence may include analyses carried out by assistants, McReynolds v. Sodexho Marriott Servs., 349 F. Supp. 2d 30, 36-37 (D.D.C. 2004) (Huvelle, J.).
5

Finally, any statistical error created by any improper “cleaning” is de minimis. There are only 130 entries in dispute, and Dr. Cupingood analyzed 12,340 entries. (Cupingood Aff. at ¶ 14.) Dr. Cupingood calculated that if he were to include the deleted entries in his calculations, the resulting calculations would be less than 1% different from the calculations provided in his expert report. (Id. at ¶ 12.) In fact, to the District’s detriment, the resulting calculations would actually show that the District had a higher rate of failing to provide services than previously calculated. Any minor change in this statistical calculus would not change the Court’s ruling this same date as to summary judgment on liability.
2. Dr. Cupingood is the Author of the Report Submitted in His Name. First, defendants allege that Dr. Cupingood did not write his own expert report. Rather, they allege that his subordinate, Mr. Niederberger, wrote the report. The only evidence that defendants cite in support of this claim is an e-mail in which Mr. Niederberger states: “The data has been cleaned up, but since [Dr. Cupingood’s] name is going on the report, I want to get [his] approval on t he cleaned up da ta before I produce any numbers.” (Defs.’ Ex. D at 1.) Dr. Cupingood, however, stated that he, not Mr. Niederberger, wrote his own report. (Pls.’ Ex. I at 52-54.) Mr. Niederberger confirmed this fact, clarifying that he was not authoring the report, but rather looking for the approval of his supervisor, Dr. Cupingood. (Pls.’ Ex. F at ¶ 4.) The Court finds this explanation convincing. In forming his statistical expert opinion, Dr. Cupingood may rely on data provided by a subordinate computer programmer. See McReynolds, 349 F. Supp. 2d at 36-37; see also FED. R. EVID. 702 (an expert may rely on facts or data “of a t ype reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject”). Second, defendants allege that someone named “Ihe” was involved in authoring Dr. Cupingood’s report. In so doing, defendants point to an e-mail in which Mr. Niederberger wrote: “Once Ihe and I sit down and talk we should be able to get you your answer.” (Defs.’ Ex. D at 1.)
6

Plaintiffs provide the very reasonable explanation that the word “Ihe” in an e-mail was a typo, and Mr. Niederberger instead meant to write “he.” Dr. Cupingood confirmed this typo in his affidavit. (Cupingood Aff. at ¶ 4.) This quibble does not require serious debate. The Court agrees with plaintiffs that the word “Ihe” was a typo, and there was never someone named Ihe involved in the preparation of the report.
3. Dr. Cupingood’s Testimony Is a Proper Subject of Statistical Expertise.
Defendants claim that Mr. Cupingood’s only contribution was to “count,” which does not require expertise. Plaintiffs argue that the quantity of data makes counting impractical, if not impossible, and that the field of statistics includes such counting activity. The Court agrees with plaintiffs.
Federal Rule of Evidence 702 governs the question of whether testimony is helpful to the Court, and thus a proper subject of expert testimony. The Rule states that an expert may use “scientific, technical, or other specialized knowledge” if it “ will assist the trier of fact to understand the evidence or to determine a fact in issue.” FED. R. EVID. 702. T he advisory committee’s notes to Rule 702 state:
Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute. When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. FED. R. EVID. 702 advisory committee’s notes (internal citations omitted). Statistics can be a proper subject of expert testimony when they are helpful in a particular case to a trier of fact. See Adams v. Ameritech Servs., Inc., 231 F.3d 414 (7th Cir. 2000); City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548 (11th Cir. 1999).
7

The Court finds that Dr. Cupingood’s testimony is helpful to the Court in understanding the database at issue. First, the high quantity of data makes counting impractical. The database consists of 12,340 entries. Although it technically would be feasible for the Court to “count” the data and reach very elementary statistical conclusions without Dr. Cupingood’s expertise, this would be a waste of time and possibly would lead to unfounded conclusions. Dr. Cupingood’s testimony is very helpful to the Court in distilling conclusions from this large set of data. Second, the field of statistics includes this “counting” activity. A statistician’s purpose is to “count” by sorting through raw data and putting it in a more digestible format. He can present statistical conclusions that are not evident on the face of the data.
4. Defendants’ Argument that Dr. Cupingood’s Tables and Charts Are Not Admissible is Moot.
Plaintiffs argue that “if the Court decides not to rule on the admissibility of Dr. Cupingood’s opinions as expert testimony at this time, it can still consider Dr. Cupingood’s summary charts and tables.” (Pls.’ Opp’n at 15.) Because the Court will rule on the admissibility of the testimony now, this argument is moot.
IV. CONCLUSION Accordingly, the Court will grant in part and deny in part defendants’ motion. The Court will order that Dr. Leonard Cupingood is qualified as an expert in statistics, but he is not qualified as an expert in computer programming. The Court will order that Dr. Cupingood’s testimony is admissible. A separate Order consistent with this Memorandum Opinion shall issue this date. Signed by Royce C. Lamberth, Chief Judge, on August 10, 2010.
8

 
 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 Opinion This case is before the Court on defendants’ Motion for Reconsideration. Mot. Recons., April 11, 2011, ECF No. 233. Having considered the Motion, the Opposition, the Reply, the record in this case, and the relevant law at length, the Court will deny defendants’ Motion for the reasons that follow. I. Introduction Imagine a standup comic who delivers the punch-lines of his jokes first, a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes. That’s what document production after trial is like—it defeats the purpose. Yet, the District’s Motion would have this Court bless its decision to violate multiple Court orders, ignore the Federal Rules’ carefully calibrated discovery apparatus, and produce thousands of responsive e-mails after trial ended. A discovery violation of this exotic magnitude is literally unheard of in this Court, and when—on the first day of trial—the District’s plan was revealed, this Court held that the District had waived objections (including privileges) with regard to all of the unproduced e-mail and ordered it to produce them all within one week of the

1

close of trial. Before the Court now is the District’s Motion to reconsider that Order. After exploring the relevant aspects of this case’s factual background, the Court will explain its reasons for denying the District’s Motion.
a. Background On April 6, 2011, t he lawyers for the District and the plaintiff class gathered at the courthouse for a bench trial. It should have been a good day for all involved. The plaintiff class had been waiting nearly six years for this Court to decide whether they are entitled to injunctive and declaratory relief for the District’s failure to provide them with a free appropriate public education as required under the Individuals with Disabilities and Education Act, 20 U .S.C. § 1400 et seq. and other laws. The District, for its part, has often lamented the burden this case has put it under due to its lack of resources and the tremendous amount of work required. And an expeditious and just resolution of cases and controversies is this Court’s abiding lodestar. Thus, the first day of trial gave everyone involved something to look forward to. April 6, 2011, though, turned out to be only the beginning of the next outrageous chapter in the ongoing discovery saga that has come to define this case. Before trial could begin, plaintiffs’ counsel asked the Court if he could raise some important preliminary matters. He proceeded to tell the Court that document production from the District was still flooding into his office. Indeed, he said that his office had received thousands of e-mails just days before trial and that the District had indicated that it w as going to continue producing thousands of e-mails on a “rolling” basis even after the trial concluded. Such a “document dump” might be legitimately explained if these e-mails were new and thus couldn’t have been produced sooner. But plaintiffs’ counsel indicated that many were more than two years old. He moved the Court to compel the production of the rest of the e-mails within one
2

week and to hold that the District had waived any objections (including privileges) with regard to the documents.
Defense counsel took the lectern but had little to say in response. First, she noted that she was aware of discovery failures by the District’s prior counsel but indicated that since she had taken over, the District had been working hard to meet its discovery obligations and had apprised plaintiffs’ counsel of its progress every step of the way. Wanting further explanation, the Court asked why these e-mails were just coming to light now. Defense counsel indicated that they were the result of a “supplemental search” that had yielded tens of thousands of e-mails that had to be reviewed for relevance and privilege. She also said that this process of new searches and review had been “ongoing for months.” The Court asked her why she failed to mention this at the pretrial conference. She responded that the District didn’t know it was going to fail to complete the review process before trial began and thus saw no need to inform the Court of the ongoing discovery.
The Court asked why the District chose to undertake this process in secret without informing it of what was happening. She responded that the District was understaffed, the discovery was voluminous, and there simply were not enough bodies to process it all before trial. The Court was dissatisfied with that answer and—from the bench—granted the plaintiffs’ Motion to Compel production and ordered the District to produce all of its e-mails within one week of the close of trial. The deadline imposed would make any motion by plaintiffs to reopen the trial record to introduce newly discovered evidence more timely. The Court also held that the District had waived privilege and objections with regard to the e-mails yet to be produced. Again, litigating privileges and objections post-trial would, in the Court’s view, unreasonably delay any possible effort by plaintiffs to reopen the trial record. The Court memorialized that oral
3

ruling in a written Order. Order, Apr. 7, 2011, E CF No. 232. The District asks this Court to reconsider that Order.
b. The 2008 Motion to Compel This Court refereed a strikingly similar discovery debacle in this case in 2008. Plaintiffs served their First, Second, and Third Sets of Requests for Production of Documents on December 28, 2005, S eptember 17, 2007, and September 28, 2007, respectively. Opp’n Mot. Recons. Exs. 1–3, Apr. 14, 2011, E CF No. 236. They specifically included e-mail in their request. Opp’n Mot. Recons. Ex. 1 at 2. On February 4, 2008, plaintiffs filed a motion to compel the District to respond to their document requests. Mot. Compel, ECF No. 91. To that date, the District had produced only seventeen e-mails from Part C staff and none from Part B staff concerning activities publicizing Child Find. Id. at 27. O n March 6, 2008, one month after plaintiffs filed their Motion to Compel and four days before the District filed their Opposition, the District provided plaintiffs a larger set of e-mails, most of which were dated between December 2006 and November 2007. Reply Mot. Compel 16, ECF No. 101. On June 27, 2008, the Court granted in part plaintiffs’ Motion to Compel production of emails and ordered that the District had waived its privilege objections with regard to them. Mem. Op., June 27, 2008, E CF No. 107. The Court noted that “[i]n its discussion of the deliberative process privilege, the District’s memorandum in opposition to plaintiffs’ motion makes no effort to argue that the District has provided a log sufficient to satisfy its obligations under Rule 26(b)(5).” Mem. Op. 10, ECF No. 107. The Court held that sans a privilege log, the District would not be heard to raise privilege objections. Id. It went on to explain its rejection of several of the District’s other objections to plaintiffs’ document request and ultimately concluded that “the District’s performance of its discovery obligations to date has been completely inadequate.”
4

Id. at 15. R egarding the District’s now all-too-familiar strategy of “rolling” document production—which has been its modus operandi since this case’s inception—the Court explained that the District had apparently “‘decided it would file an incomplete answer and then supplement it whenever it pleased.’” Id. (quoting Association of American Physicians and Surgeons, Inc. v. Clinton, 837 F. Supp. 454, 458 (D.D.C. 1993) (Lamberth, J.)). The Court—in no uncertain terms—“condemned that litigation tactic,” emphasizing that it “ ‘w[ould] not tolerate it in future responses in this case.’” Id. (quoting same).
Yet even after being called out in a Court order, the District—its head apparently buried in the sand—remained committed to its corrupt production strategy. That is unsurprising in light of its narrow reading of this Court June 27, 2008, Memorandum Opinion. In its Reply brief, the District says that the sole basis for that Opinion was “the District’s failure to provide privilege logs.” But that is plainly untrue. The District’s failure to provide privilege logs was the basis of the Court’s decision to reject the District’s objections to document requests on t he basis of privilege, but as outlined above, the Court’s broader purpose was to disabuse the District of its “rolling” production scheme. Indeed, the discussion of privilege logs only accounts for three pages of the Court’s twenty-two page Opinion. Mem. Op. 9–11, ECF No. 107. The rest rejects several of the District’s other objections and its general discovery conduct. The District’s decision to ignore the bulk of this Court’s June 27, 2008, O pinion explains, in part, why it continues (even last week) to implement its ill-conceived “rolling” document production scheme. That decision does not, however, explain its obliviousness to the Federal Rules of Civil Procedure that animated this Court’s June 27, 2008, Opinion in the first place.
5

II. Legal Standard a. Motion for Reconsideration under Rule 54(b) Though “no express rule . . . is needed to justify a motion for reconsideration,” Federal
Rule of Civil Procedure 54(b) “by its terms allow[s] the trial court to modify its earlier order.” Dellums v. Powell, 566 F.2d 231, 234 (D.C. Cir. 1977); see also Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005) (“Rule 54(b) governs reconsideration of orders that do not constitute final judgments in a case.”). Although this Rule provides a procedural mechanism for courts to reconsider their prior opinions, the actual language of Rule 54(b) sets forth little guidance as to when such review is appropriate. To fill this gap, courts in this district have held that “relief upon reconsideration . . . pursuant to Rule 54(b) is available ‘as justice requires.’” Hoffman v. District of Columbia, 681 F. Supp. 2d 86, 90 (D.D.C. 2010) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)). “[A]sking ‘what justice requires’ amounts to determining, within the court’s discretion, whether reconsideration is necessary under the relevant circumstances.” Cobell, 355 F. Supp. 2d at 539; see also United States v. Second Chance Body Armor, Inc., 709 F. Supp. 2d 52, 55 ( D.D.C. 2006)). The relevant circumstances that may warrant reconsideration include “whether the court ‘has patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.’” Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010) (quoting Cobell v. Norton, 224 F .R.D. 266, 272 (D.D.C. 2004) (alterations in original); see also Hoffman, 681 F. Supp. 2d at 90 ( same); Capitol Justice, LLC v. Wachovia Corp., 605 F. Supp. 2d 187, 190 (D.D.C. 2009) (same).
6

b. Discovery Matters and Sanctions i. Discretion
Discovery disputes are “for better or worse, the daily bread of magistrate and district judges in the age of the disappearing trial.” Lee v. Max Int’l, LLC, No. 10-4129, 2011 W L 1651640, at *2 (10th Cir. May 3, 2011) (Gorsuch, J.). This specialization yields expertise, which explains why “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.” Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
ii. The scope of discovery, document production, and supplementation— Rules 26 and 34
Rule 26(b) governs the scope of discovery and in relevant part says that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things . . . .” Fed. R. Civ. P. 26(b). Rule 34 governs document production and provides that a party may request that any other party produce documents within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). If a proper request is made, “The party to whom the request is directed must respond in writing within 30 da ys after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the Court.” Fed. R. Civ. P. 34(b)(2)(A). “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must . . . describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that . . . will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5). Rule 26(e) requires a party who has “responded to . . . [ a] request for production” to “supplement or correct its disclosure or response . . . i n a timely manner if the
7

party learns that in some material respect the disclosure or response is incomplete or incorrect . . . .” Fed. R. Civ. P. 26(e).
iii. Discovery sanctions—Rule 37 Rule 37 provides district courts broad discretion to sanction a party that fails to obey an order to provide or permit discovery. Fed. R. Civ. P. 37(b)(2); Bonds v. District of Columbia, 93 F.3d 801, 807 (D.C. Cir. 1996) (“Under Rule 37, the district court has broad discretion to impose sanctions for discovery violations.”) (citing Nat’l Hockey League v. Metropolitan Hockey Club, Inc., 427 U .S. 639, 642 –43 (1976) (per curiam)); see also Flynn v. Dick Corp., 481 F.3d 824, 835 (D.C. Cir. 2007) (acknowledging that the district court has broad discretion in managing discovery, and “[t]his deference [accorded by the circuit] extends to the district court's imposition of discovery sanctions”) (citing Jankins v. TDC Mgmt. Corp., 21 F.3d 436, 445 (D.C. Cir. 1994)); Mojarad v. Aguirre, No. CIV.A.05-0038, 2006 WL 785415, at *10 (D.D.C. March 27, 2006) (acknowledging that the list of sanctions enumerated in Rule 37(b)(2)(A) is neither exhaustive nor mutually exclusive, and “the court may impose [more than one of the enumerated sanctions] at the same time[ ]”; “[t]he imposition of the number and type of sanctions employed under [Rule 37(b)(2)(A) ] is left to the discretion of the trial judge”) (citations omitted); Bolger v. District of Columbia, 248 F.R.D. 339, 343 ( D.D.C. 2008); Henry v. Onsa, No. CIV.A.05-2406, 2008 WL 552627, at *2 ( D.D.C. Feb. 27, 2008) ; Handy v. Shaw, Bransford, Veilleux & Roth, No. CIV.A.00-2336, 2006 WL 3791387, at *8 (D.D.C. Dec. 22, 2006) (“Indeed, the ‘district court has been delegated a good deal of discretion in making discovery orders and enforcing them with sanctions[.]’ ”) (citation omitted); United States v. Proceeds of Drug Trafficking Transferred to Certain Foreign Bank Accounts, 252 F.R.D. 60, 62-63 (D.D.C.2008) (“Sanctions
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are integral to the operation of the judicial system [,]” and Rule 37 “allows the court to apply a variety of sanctions to any party in a case.”) (citations omitted).
Rule 37 authorizes sanctions in a variety of circumstances, but only two are relevant here. The first is when a party “fails to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). Rule 37(b)’s plain language requires the moving party to clear two hurdles before it may access the Rule’s sanctioning mechanisms: (1) there must be a discovery order in place, and (2) that order must be violated. Id. Once those two hurdles are cleared, the Rule allows for several specific types of sanctions, including dismissal of the action and default judgment. Id. at 37(b)(2)(A)(i)–(vii). Its next subsection emphasizes that “[i]nstead of or in addition to the orders above, the court must order the disobedient party . . . to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). As mentioned above, Rule 37(b)(2)(A)’s list of possible types of sanctions is not exclusive. Mojarad v. Aguirre, No. CIV.A.05-0038, 2006 WL 785415, at *10 (D.D.C. March 27, 2006) (acknowledging that the list of sanctions enumerated in Rule 37(b)(2)(A) is neither exhaustive nor mutually exclusive, and “the court may impose [more than one of the enumerated sanctions] at the same time[ ]”; “[t]he imposition of the number and type of sanctions employed under [Rule 37(b)(2)(A) ] is left to the discretion of the trial judge”) (citations omitted). Thus, a court may exercise discretion to fashion sanctions appropriate for the facts before it under Rule 37(b).
The second situation is when a party fails to supplement its discovery responses, as required by Rule 26(e). Fed. R. Civ. P. 37(c)(1). Unlike the first situation, no court order needs to be in place for the imposition of Rule 37(c) sanctions. Instead, once the party seeking sanctions has shown a violation of Rule 26(e), the party facing possible sanctions must prove that its
9

failure to comply with the rule “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c). Rule 37(c) also says that a court “may impose other appropriate sanctions” in addition to those available under Rule 37(b). Id. at 37(c)(1)(C).
When calibrating the extent of the sanction, Rule 37’s central requirement is that “any sanction must be just.” Bonds, 93 F.3d at 808 (citations and internal quotation marks omitted). “The choice of sanction should be guided by the concept of proportionality between offense and sanction.” Id. (citations and internal quotation marks omitted). “In determining whether a severe sanction is justified, the district court may consider the resulting prejudice to the other party, any prejudice to the judicial system, and the need to deter similar misconduct in the future.” Id. (citations omitted). The D.C. Circuit has held that the district court’s interest in deterrence is a legitimate one, “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Id. at 808 (citing Nat’l Hockey League, 427 U.S. at 643). It has held that “waiver of privilege is a serious sanction most suitable for cases of unjustified delay, inexcusable conduct, and bad faith.” United States v. Phillip Morris, Inc., 347 F.3d 951, 954 (2003). As the Court will explain below, the District’s conduct meets that standard, and therefore, waiver of privilege was an appropriate sanction.
The District proposes a different and incorrect legal standard for this case. It says that “Rule 37(d) governs the imposition of sanctions for failure to comply with, inter alia, a request to produce documents pursuant to Rule 34(b) (or, by extension, a privilege log pursuant to Rule 26(b)(5).” Mot. Recons. 8. The District argues that Rule 37(d) authorizes sanctions only in response to a complete failure to respond to a request for production—not merely an incomplete or inadequate response. Id. at 9 (citing First Sav. Bank, F.C.B. v. First Bank Sys., Inc., 902 F.
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Supp. 1356, 1361 (D. Kan. 1995); see also Boca Investerings P’ship v. United States, Civ. No. 97-602 (PLF), 1998 U.S. Dist. LEXIS 11840, at *7–*8 (D.D.C. Jan. 20, 1998); E. Techs., Inc. v. Chem-Solv, Inc., 128 F.R.D. 74, 75 (E.D. Pa. 1989)). The problem is that although the District is correct that it did not completely fail to respond, as will be discussed at length below, it did violate multiple Court orders as well as Rule 26(e)’s duty to supplement its responses. Accordingly, Rule 37(d) simply doesn’t apply here.
III. Analysis a. The Basis of the April 7, 2011, Order
Why does the Court deny the District’s Motion? To borrow a common saying, there is a short answer and a long one. The short answer is that the Order is just in light of the District’s repeated, flagrant, and unrepentant failures to comply with Court orders. The long answer, which the Court provides below, requires it to explain those failures in detail and to give its reasons for rejecting the District’s arguments for reconsideration. First, the Court will explain the District’s various discovery obligations and how it violated them. Then, it will show that the District was totally without excuse for those violations. Next, it will discuss its reasons for concluding that there was no practical alternative to the sanctions it imposed. Finally, it will emphasize the deterrence values that guided its decision. After this discussion of the basis of its decision to sanction the District is complete, the Court will respond to each of the District’s arguments as to why it should reconsider its decision.
The Court’s June 27, 2008, Order, discussed above, did not simply direct the District to “go forth and produce” documents. Instead, recognizing that the armature of the Federal Rules provided insufficient structure to gain the District’s compliance, the Court gave the District several very specific directives to help it succeed in navigating the discovery phase of this
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litigation. Among other things, it instructed the District to “submit to this Court and to the plaintiffs a statement certifying the method that defendants used to search for documents responsive to Plaintiffs’ First, Second, and Third Sets of Requests for Production of Documents and stating in detail the actions that defendants took” by August 5, 2008. Order 3, June 27, 2008, ECF No. 108.
After the usual to and fro of requests for extensions of time and amended scheduling orders, the Court had finally extended the District’s production deadlines under the June 27, 2008, Order all the way until October 14, 2008. Order, Sept. 15, 2008, ECF No. 134. The Court’s Order made clear that “the deadline for defendants’ completing the review and production or identification on a privilege log of all remaining e-mails and serving a certification that defendants have done so, is extended to and including October 14, 2008. ” Id. Yet, even after being recently sanctioned for discovery violations, and despite benefitting from multiple extension of time, the District failed to comply with this Court’s Order. Its privilege log was nearly a m onth late, Opp’n Mot. Recons. Ex. 7, A pr. 18, 2011, ECF No. 236–8, and its certification, though not as tardy, didn’t arrive until October 15, 2008. Defs.’ Notice of Filing Certifications in Compliance Court Order, Oct. 15, 2008, ECF No. 136.
To its credit, the District’s late-filed certification did “declare under penalty of perjury” that it had produced all of the documents it had that were responsive to this Court’s June 27, 2008, Order. Id. at Ex. 1. But even that statement turned out to be unreliable, as responsive documents from April 2006 and February 2008 were still arriving at plaintiffs counsel’s office as late as January 18, 2011. Opp’n Mot. Recons. Ex. 8, Apr. 18, 2011, ECF No. 236-9.
Importantly, the District’s production of e-mails from April 2006 and February 2008 also violated another of this Court’s discovery orders. On December 22, 2008, this Court ordered that
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fact discovery was due by March 16, 2009. Order, ECF No. 138. That Order was never amended even though the Court entered other scheduling orders adjusting the time for expert discovery and pretrial matters. Thus, the District’s January 18, 2011, production of e-mails from April 2006 and February 2008 violated two of this Court’s discovery Orders.
But as bad as the District’s violation of multiple discovery orders was, that wasn’t its most appalling discovery abuse in this case. That ignominious designation is reserved for the District’s violation of Rule 26(e)’s duty to supplement its discovery responses. Rule 26(e)(1) requires a party who has responded to a request for production to supplement its response either in a timely manner or as ordered by the Court. Fed. R. Civ. P. 26(e)(1). On September 22, 2010, this Court ordered the parties to supplement their document production up to the day of trial. Order, Sept. 22, 2010, ECF No. 201. Plaintiffs’ production of thousands of e-mails—some more than two years old—after the date of trial was a clear violation of their duty under Rule 26(e)(1)(B) to comply with this Court’s supplementation orders. The Court notes that it is very likely that some of the e-mails produced after trial also violated the December 22, 2008, and June 27, 2008, Orders, but because the Court has not had a chance to review them in detail, it cannot be certain. In any event, because the District violated multiple Court orders as well as its obligations under Rule 26(e), it was open to sanctions under Rules 37(b) as well as 37(c). Yet, its bare discovery violations are just one of many reasons for the Court’s decision to order its privilege objections waived. The Court proceeds to explain several other justifications.
First, the District has absolutely no e xcuse for its behavior in this case. It knew of its discovery obligations, and it knew how to file a motion for extension of time. This Court granted nearly every such motion it saw in this case, and there were many. If at any point the District realized that it was behind, or for any other reason could not comply with this Court’s Orders, it
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should have informed the Court of the problem. It could have filed another motion for an extension of time or a status update to alert the Court to the issue. It could have said something at any of the multiple status conferences held in this case or at the pretrial conference. Instead, the District failed to produce documents for over two years, violated multiple Court Orders in the process, and instead of informing the Court of the situation at any point along the way, it simply sprung the news on the first day of trial. The District’s complaints of lack of resources and time pressure fall on deaf ears because it failed to seek relief through any of the Rule-based mechanisms discussed above. Accordingly, it is without excuse.
Second, the Court’s purpose in ruling that the District had waived privilege wasn’t limited to adjusting the District’s behavior. Instead, the Court sought to specifically deter the District from misbehaving in this way in the future and to generally deter other parties from doing the same by putting them on not ice of the fact that this Court takes the Federal Rules’ discovery framework seriously. The Court felt that strong specific deterrence was particularly necessary in light of the District’s failure to get the message the first time after the Court’s unequivocal rejection of its “rolling” discovery method on June 27, 2008. Mem. Op., ECF No. 107.
Third, the Court had no practical alternative short of entering a default in the case. The District chose not to bring this situation to the Court’s attention until the day of trial, leaving the Court with very few options. It’s hard to estimate how long this case might have been delayed had the Court not held that the District waived privilege. After all, plaintiffs still haven’t reviewed those thousands of newly produced documents, and they still haven’t responded to the District’s privilege objections. As is well-known, such disputes can be quite protracted, and given this case’s history, there is every reason to believe they would be here, too. After all of the
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privilege disputes were sorted out, it is possible that plaintiffs would have to redepose witnesses, alter trial strategy, or commence a b rand new motions practice as a result of the information found in the new, voluminous production. Thus, there is no t elling how long the delay might have been had the Court not held that the District had waived privilege. What is certain is that the delay would have overcrowded this Court’s already congested trial calendar and simultaneously and unfairly increased the costs for both parties as they digested this new material and adjusted trial strategies accordingly.
As the Tenth Circuit Court of Appeals recently asked in a similar case: “How many times can a litigant ignore his discovery obligations before his misconduct catches up with him?” Lee v. Max Int’l, LLC, No. 10-4129, 2011 WL 1651640, at *1 (10th Cir. May 3, 2011) (Gorsuch, J.). It concluded that although “our justice system has a strong preference for resolving cases on their merits whenever possible . . . no one . . . should count on more than three chances to make good a discovery obligation.” Id. The District has—to put it mildly—exceeded its limit. Its failure to heed its discovery obligations from 2005 unt il 2008 earned it a thoroughgoing rebuke on J une 27, 2008. M em. Op., ECF No. 107. Undaunted, it persisted in its rejected “rolling” document production strategy clear through the end of trial and beyond. Importantly, this not only violated the Court’s June 27, 2008, Order, it also constituted a flagrant violation of the Court’s December 22, 2008, S cheduling Order. The District had countless opportunities to stop ignoring its discovery obligations. It chose not to, and it should not be surprised that its misconduct has caught up with it.
b. The District’s Arguments Having explained the basis of its April 7, 2011, Order, the District’s arguments can be easily dispatched. It has three: (1) the District has made a good-faith effort to produce all
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responsive e-mails before the trial; (2) plaintiffs are not prejudiced by its post-trial production of responsive e-mails; and (3) plaintiffs have also committed discovery violations. Each of these arguments is wholly without merit.
Whether the District made a good-faith effort to produce all responsive e-mails before the trial is irrelevant. As explained above, it w as not sanctioned for failing to make a good-faith effort. It was sanctioned for openly, continuously, and repeatedly violating multiple Court orders, failing to adhere to or even acknowledge the existence of the Federal Rules’ discovery framework, and committing a discovery abuse so extreme as to be literally unheard of in this Court. The Rules require more than simply making a good-faith effort to produce documents. They require adherence to a very precise framework for navigating the discovery process. Moreover, the duty to adhere to clear Court orders is among a lawyer’s most basic. Were it not for those two directives—the Federal Rules’ discovery framework and Court orders regarding discovery—discovery would devolve into pure bedlam. Disciplined adherence to those Rules and Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process. A goodfaith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.
The extent to which plaintiffs were prejudiced by the District’s post-trial production of responsive e-mails was only one of many factors that contributed to this Court’s decision to sanction the District. Again, the Court sanctioned the District for violating its Orders and to deter the District and other parties from behaving the same way in the future. These reasons are wholly independent of any prejudice plaintiffs may suffer as a result of the District’s misbehavior. Moreover, the Court rejects the District’s attempt to profit from their discovery
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misconduct by shifting the burden to plaintiffs to demonstrate how they were prejudiced by that misconduct. Putting those considerations to the side, though, it’s clear that the District’s misconduct has prejudiced plaintiffs. As discussed above, the District’s delayed production and supplementation of its responses to document requests likely left plaintiffs with a compromised trial strategy. Moreover, lacking access to all of the relevant information, their cross-examination of defendants’ witnesses was unfairly limited. Finally, the District’s discovery mischief has resulted in increased costs and unnecessary delays for the plaintiff class. Those burdens will only increase if plaintiffs choose to reopen the trial to use the new documents either as part of new direct testimony or for cross-examination purposes. Therefore, the Court finds that the District’s discovery violations did prejudice plaintiffs.
Finally, whether plaintiffs have also committed discovery violations in this case is also totally irrelevant to whether this Court’s April 7, 2011, Order was just. It would only waste time for the Court to count the parties’ various rights and wrongs. Each party is responsible for its own obligations under Court orders and the Rules. The District would be well-advised to invest the time it’s spent ankle-biting the plaintiffs for various alleged discovery abuses in bringing its own conduct in line with the Federal Rules of Civil Procedure and this Court’s Orders. In short, this is a p rime example of the lesson many learn as children: When you point one finger at another, three point back at you. Finally, insofar as the District is correct that plaintiffs have committed other discovery abuses—and the Court draws no conclusion on that score—all is not lost. After all, as the Court has repeatedly emphasized, one purpose of its April 7, 2011, O rder was to generally deter other parties—including plaintiffs—from engaging in behavior similar to the District’s.
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IV. Conclusion For the reasons discussed above, the District’s Motion for Reconsideration is denied. A separate Order will issue today memorializing this decision.
Signed by Royce C. Lamberth, Chief Judge, on May 9, 2011.
18

 
 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 OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

This case concerns the District of Columbia’s obligations, under both federal and local

law, to provide special education to some of our most vulnerable citizens at a very early and

critical stage in their lives. In the first few years of a child’s life, there exists a narrow window

of opportunity in which special education, tailored to the child’s particular needs, can work a

miracle. “[S]omewhere in the neighborhood of 75 to 80 percent” of the disabled children who

are found in the community and served by quality early intervention programs will go on t o

kindergarten alongside every other ordinary five-year-old—without needing further

supplemental special education. Trial Transcript, Dunst Testimony, 115:4–116:15, Apr. 6, 2011.

So that’s what’s at stake here.

The named plaintiffs in this lawsuit—former preschool-age children in the District with

various disabilities—filed suit in July 2005, a lleging that defendants had engaged in a pattern

and practice of failing to provide special education and related services to them and other

children, in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §

1400 et seq., Section 504 of the Rehabilitation Act, 29 U .S.C. § 794( a), implementing

regulations, the Due Process Clause of the Fifth Amendment, and District of Columbia law. Am. Compl. [61] ¶1–2. Plaintiffs sought declaratory and injunctive relief, reimbursement for funds expended by them to obtain education services denied them by defendants’ legal violations, and “compensatory education.” Id. at 33–35.
In August 2006, the Court certified a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Order [58] 1, Aug. 25, 2006. The plaintiff class is defined as:
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive. Id. Toward the end of discovery, the parties filed cross-motions for summary judgment. In August 2010, t he Court ruled upon t hose motions and concluded, among other things, that defendants “denied a [free appropriate public education (“FAPE”)] to a large number of children aged 3 to 5 years old, in violation of § 1412(a)(1)(A) of the IDEA.” DL v. District of Columbia, 730 F. Supp. 2d 84, 95 (D.D.C.2010). However, this ruling applied only for the period 2007 and earlier, which were the only years for which data was available. Id. The Court scheduled a bench trial for April 2011 solely on the issue of defendants’ liability for the period 2008 to the trial date, while also ordering the parties, within 30 days after issuance of the Court’s decision on t he merits presented at trial, to propose a procedure for addressing class members’ claims for individual relief. Order [201] 2, Sept. 22, 2010.
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The parties appeared before this Court for a bench trial on April 6–7, 2011. The parties presented several witnesses and a n umber of exhibits. A t the Court’s direction, each party submitted Proposed Findings of Fact & Conclusions of Law [254, 256] on June 3, 2011.
Based on all of the evidence presented, the Court makes the following findings of fact and conclusions of law and will, consistent with them, enter judgment in favor of plaintiffs and against defendants. II. FINDINGS OF FACT
A. Credibility of Plaintiffs’ Experts 1. Plaintiffs retained Dr. Carl J. Dunst as an expert to study and provide statistical
analysis of the District of Columbia’s Child Find-related obligations as they relate to preschool children, ages three through five. D irect Testimony of Dr. Carl J. Dunst [209-1] 3, M ar. 16, 2011.
2. Dr. Dunst holds a Bachelor’s degree in Education from Temple University, a Master’s degree in Early Childhood Special Education from the George Washington University, and a Doctorate in Developmental Psychology from the George Peabody College at Vanderbilt University. Id. at 1.
3. Dr. Dunst has worked as an early intervention practitioner, has directed an IDEA Part C early intervention and an IDEA Part B preschool special education program, and has taught numerous courses on i nfant and preschool development, assessment, and intervention practices. Id.
4. Dr. Dunst was the Principal Investigator of a seven-year study funded by the U.S. Department of Education, Office of Special Education Programs (“OSEP”) called the Tracking, Referral and Assessment Center for Excellence (“TRACE”). Id. at 2. TRACE investigated Child Find-related practices in IDEA Part C early intervention and IDEA Part B preschool
3

special education programs in all 50 states, the District of Columbia, and other jurisdictions, and researched and developed evidence-based practices for improving Child Find-related activities. Id. He has also been the Principal Investigator or Co-Principal Investigator at two other OSEPfunded research and training centers that focus on early childhood intervention practices. Id.
5. Dr. Dunst is currently a Research Scientist and Co-Director at the Orelena Hawks Puckett Institute in Asheville, North Carolina, which conducts research, evaluation, and intervention development and training in Part C, Part B, Early Head Start, Head Start, Even Start, childcare and preschool practices. Id.
6. Due to his extensive experience, Dr. Dunst is a recognized expert in infant and early childhood assessment practices, family systems intervention practices, infant and early childhood intervention practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at 3.
7. Dr. Dunst has received a n umber of awards from a v ariety of professional organizations for his research and practice. Id. He has an extensive list of publications in prominent journals, reports, and books about Child Find-related policies and practices. See Carl J. Dunst, Recent Publications (2001–2011), Pls.’ Ex. 211 at 1–5.
8. Based on Findings Nos. 1–7, this Court finds that Dr. Dunst is a qualified expert in analyzing the District of Columbia’s Child Find-related obligations, as they relate to preschool children, ages three through five.
9. This Court finds that Dr. Dunst testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how his conclusions were based on both his research and personal experience in the field.
10. Plaintiffs retained Dr. Leonard A. Cupingood as an expert to study and provide statistical analysis of the timeliness of defendants in determining the eligibility for special
4

education and related services of children ages three through five with suspected disabilities. Direct Testimony of Dr. Leonard A. Cupingood [209-2] 2, Mar. 16, 2011.
11. Dr. Cupingood holds a Bachelor’s degree in Mathematics from Rutgers University and a Master’s and a Doctorate in Statistics from Temple University. Id. at 1.
12. He has extensive experience in conducting statistical analysis in a variety of litigation matters, including employment discrimination cases and audits of insurance companies regarding claims processing. Id. at 1–2. D r. Cupingood has provided deposition and trial testimony both as a database expert and as a statistician. Id. at 1.
13. Dr. Cupingood is a member of the American Statistical Association and has published several statistics-based articles in reputable journals. Id. at 2; see also Leonard A. Cupingood, Updated CV, Pls.’ Ex. 213 at 2–3.
14. Based on findings Nos. 10–13, this Court finds that Dr. Cupingood is a qualified expert in statistics and that he provided credible and compelling testimony during trial regarding defendants’ Child Find-related obligations, including the timeliness of defendants in determining the eligibility for special education and related services of children ages three through five with suspected disabilities.
15. This Court also finds that Dr. Cupingood provided credible testimony regarding the number of preschool-age children who were referred each year for special education services.
16. This Court also finds that although there was an error in labeling Table 2 of Dr. Cupingood’s Direct Testimony, Cupingood Direct Testimony [209-2] 10, this error was minor and had no effect on Dr. Cupingood’s calculations regarding the timeliness of eligibility determinations summarized in Tables 1–6.
17. Ruth Anderson Wilcox testified concerning her three-year-old son, DW, who experienced delays in evaluation and provision of special education services from the District of
5

Columbia, during the 2010–11 school year. Direct Testimony of Ruth Anderson Wilcox [209-3] 8, Mar. 16, 2011. Ms. Wilcox stated that in September 2010, within three weeks after her son began his first day of school at Randle Highlands Elementary School, she asked defendants to provide her son with an initial evaluation for special education services. Id. at 2. Upon receiving an oral referral for an evaluation, DCPS policy and guidelines require an LEA to assist a parent with completing a written referral. O SSE Part B Initial Evaluation/Reevaluation Policy [25512], Pls.’ Ex. 237 at 12. Defendants did not assist Ms. Wilcox with submitting a written referral for an evaluation until December 2010. W ilcox Direct Testimony [209-3] 4. M s. Wilcox testified that defendants asked her to not date her written referral form because they “did not know when the evaluation would take place.” Id. “At some point, someone other than [Ms. Wilcox] wrote December 14 on the form,” as the date of the purported consent. Id. DW did not receive a psychological evaluation until February 1, 2011. Id. at 7. DW therefore did not receive an initial evaluation within 120 days from the date DW was referred for an evaluation or assessment. D.C. Code 38-2561.2(a).
18. This Court finds Ms. Wilcox’s testimony credible and compelling. B. Credibility of Defendants’ Expert
19. Maxine Freund is a professor at the Graduate School of Education and Human Development at the George Washington University. S he has a doctorate in education with specialization in atypicality in infancy and early childhood. Testimony of Maxine Freund [2102] 1, Mar. 16, 2011. Defendants retained Dr. Freund as an expert to examine and testify about the District of Columbia’s early childhood and early intervention special education programs. Id.
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20. After analyzing the District of Columbia’s past and present special education policies and practices, Dr. Freund submitted her expert report. Freund Expert Report [178-11] 3, Ex. 9 to Pls.’ Mot. Partial Summ. J. [178].
21. Dr. Freund’s expert report concluded that the District of Columbia’s Child Find activities have been “troubled and largely unsuccessful in meeting the obligations of IDEA Parts C . . . and B . . . .” Id. at 1. This troubled history is due in part to frequent changes in leadership and long period of vacancies in key leadership positions at the Part B program. Id. at 3; Freund Direct Testimony [271-9] ¶2. Dr. Freund believed the District’s policies “to be problematical, misaligned[,] and in need of improvement.” E-mail from Maxine Freund to Ellen Efros, OAG, Pls.’ Ex. 232 at 4, Aug. 18, 2009. In preparing the report, Dr. Freund said that she was provided “incomplete documents, drafts, unsigned MOUs, and identified practices that did not benefit the systems involved in Child Find.” Id.
22. Defendants’ counsel believed that prior drafts of Dr. Freund’s report described an even worse situation. E llen Efros, the chief attorney at the Equity Section of the District of Columbia’s Office of the Attorney General (“OAG”), noted than an initial draft of the report “shred[ded]” the District of Columbia, was “worse [for defendants] than the Dunst Report,” and would be “extraordinarily difficult to defend.” Id. at 2, 3. M s. Efros also believed that Dr. Freund’s report “prove[d] Plaintiffs’ case” and determined that “everything [in the District of Columbia] is dysfunctional, and that even the proposals going forward either are not to be trusted or are not sufficient.” Id. at 1. Tameria Lewis, the Assistant Superintendent for Special Education, believed that if Dr. Freund’s report was submitted as evidence, there would be “no point in a trial as our own witness will be providing clear evidence to proove [sic] the Plaintiffs[’] case with only minimal and very qualified statements about progress we are making or committing to in the near future.” Id. In contrast, Dr. Richard Nyankori, the former Deputy
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Chancellor for Special Education for DCPS, disagreed, and was “increasingly concerned by the OAG[’s] response to [Dr. Freund’s] work.” Id. at 3.
C. Provision of a “FAPE” 23. Each December, OSSE and all other jurisdictions are required to provide to OSEP “child count” data, which includes the number of preschool-age children enrolled in Part B special education services. D unst Direct Testimony [209-1] 8. O SEP collects and compares these data with the U.S. Census Bureau’s annual population estimates to determine the percentage of preschool-age children enrolled in Part B services. Id. 24. Plaintiffs’ expert, Dr. Dunst, provided statistical analysis of these data, which provide the means to compare the percentage of preschool-age children enrolled in Part B services in the District of Columbia with the number of children enrolled nationally and in each jurisdiction. Id. 25. In 2008, approximately 5.68% of children ages three to five nationwide received Part B special education services. “Table 1-14. Percentage of children ages 3 through 5 served . . . , P ls.’ Ex. 205 at 2. Currently, about 6% of three- to five-year-old children nationwide are identified as having developmental delays that qualify them for Part B special education services. Early Stages Family Care Manual [271-21] 42, Pls.’ Ex. 152. 26. By contrast, in 2008, t he District of Columbia identified and provided Part B services to 2.72% of children ages three through five, which was the lowest rate in the country and lower than the percentage reported for the previous year (2.9%). Dunst Direct Testimony [209-1] 8–9. I n 2009, de fendants provided Part B services to 3.30% of children ages three through five and, in 2010, to 4.62% of preschool-age children. Id. at 9.
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27. On March 9, 2011, d efendants stipulated “that the District currently provides special education and related services under [the IDEA] . . . t o less than 6% of its population of children aged 3 through 5 years . . . .” Defs.’ Stipulation [206] 1, Mar. 9, 2011.
28. Based on the most recent estimates available at the time of trial, the District of Columbia still lags behind most other states in identifying and providing a FAPE to preschoolage children. Dunst Direct Testimony [209-1] 9.
29. In the District of Columbia, large percentages of preschool-age children experience many different risk factors associated with disabilities and significant developmental delays, including, but not limited to, poverty, teenage pregnancy, HIV/AIDS, single-parent households, economic hardship, and poor housing. Id. at 11–12. More children in the District of Columbia experience multiple risk factors than in any other state. Id. at 12. Specifically, 59% of children in the District experience three or more risk factors, while 6% experience eight or more risk factors. Trial Transcript, Dunst Cross Testimony, 76:16–23, Apr. 6, 2011.
30. In its February 8, 2011 Family Care Manual, the staff of the District’s Early Stages Center acknowledged that, in light of these risk factors, the District’s projected identification rate (that is, the percentage of preschool-age children that the District of Columbia is expected to identify and evaluate for Part B services) is about 12%. Family Care Manual [271-21] 42, Pls.’ Ex. 152. In other words, it is likely that 12% of preschool-age children in the District have developmental or physical disabilities that qualify them for Part B services. Dunst Direct Testimony [209-1] 12; Trial Transcript, Dunst Cross Testimony, 79:13–19, Apr. 6, 2011. The 12% figure is based on a comparison between the District of Columbia and two U.S. cities (Atlanta and Detroit) with similar demographic predictors of disabilities. 30(b)(6) Beers Dep., 61–62, Mar. 1, 2011. At trial, Dr. Dunst explained that “at least 10% but more likely 12%” of preschool-age children in District are “potentially eligible” for Part B preschool education, with
9

“85 to 90 percent of those children” actually being found eligible. Dunst Direct Testimony [2091] 12; Dunst Cross Testimony, 79:13–82:3, Apr. 6, 2011. This suggests that, on the low end, the District should expect to be serving 8.5% of its preschool-age population with Part B services.
31. As of March 2011, t he District of Columbia has failed to identify and offer a FAPE to the 8.5% of preschool-age children that are expected to be eligible for Part B services.
32. Assuming that the District of Columbia creates an effective and sustainable Child Find system, and that the necessary policy and procedural changes described in Findings Nos. 82–97 are implemented, the most statistically reasonable and defensible forecast suggests that “the District will reach 6 percent [of preschool-age children served] in 2012, 8 percent in 2013, 10 percent in 2015, and 12 percent in 2016.” Dunst Direct Testimony [209-1] 30–33. However, as the pool of potentially eligible children decreases, statistically “it will not be possible [for the District] to maintain the kinds of increases in the number of children identified as have been found in the past few years.” Id. at 15; Trial Transcript, Dunst Cross Testimony, 93:16–95:2, Apr. 6, 2011.
D. Initial Evaluations and Eligibility Determinations 33. As a condition of receiving federal funding under the IDEA, the District must provide an Annual Performance Report (“APR”) that details the percentage of children referred for Part B services that received a timely initial evaluation and eligibility determination. Dunst Direct Testimony [209-1] 16. Beginning in November 2010, Early Stages began reporting on its “Scorecards” the percentage of preschool-age children that received timely initial evaluations. Id. at 17. 34. Plaintiffs’ experts, Drs. Dunst and Cupingood, provided statistical analysis of these data. Id. at 16–17; Cupingood Direct Testimony [209-2] 3.
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35. With respect to all children ages 3 through 21 referred for services under Part B, the District of Columbia reported that 45.2% received a timely initial evaluation in 2007–2008, 66.56% received timely initial evaluations in 2008–2009, and 75.09% received timely initial evaluations in 2009–2010. See Part B APR [FY] 2007 (2007–2008), Pls.’ Ex. 156; Part B APR [FY] 2008 (2008–2009), Pls.’ Ex. 157; Part B APR [FY] 2009 (2009–2010), Pls.’ Ex. 158; Maisterra Direct Testimony [210-3] 6. In other words, 44.8% did not receive timely initial evaluations in 2008–2009, and 24.91% did not receive timely initial evaluations in 2009–2010.
36. The District reported that 77% of its initial evaluations for children ages three to five for Part B were timely in October 2010, 50% were timely in November 2010, and 53% were timely in December 2010. Early Stages Scorecard, Pls.’ Ex. 181; Early Stages Scorecard, Pls.’ Ex. 182. This decrease within a span of three months indicates that the District is unable to show consistent and stable improvements in providing timely initial evaluations to the preschool-age population. Dunst Direct Testimony [209-1] 17.
37. Unless there are significantly more resources put in place, the District of Columbia will be strained by the increased number of children identified for special education and related services, which will cause further delays in providing timely initial evaluations. Trial Transcript, Dunst Cross Testimony, 104:23–105:11, Apr. 6, 2011. T herefore, “it will be some time before the District is able to achieve 100 percent timeliness as required by the IDEA.” Dunst Direct Testimony [209-1] 17.
38. From 2008 through 2010, the District provided timely eligibility determinations to 56.75% of the referred preschool-age children. Cupingood Direct Testimony [209-2] Table 3. Specifically, the District provided timely eligibility determinations to 41.44% of preschool-age children in 2008, 68.43% in 2009, a nd 55.23% in 2010. Id. at 8. In other words, 58.56% of preschool-age children did not receive timely eligibility determinations in 2008, 31.57% did not
11

receive timely eligibility determinations in 2009, and 44.77% did not receive timely eligibility determinations in 2010.
39. These statistics indicate that there has been and continues to be considerable variability rather than stability in the percentage of timely eligibility determinations for preschool-age children. Dunst Direct Testimony [209-1] 18.
40. Under District of Columbia law, defendants must provide an initial evaluation to all children identified as potential candidates for special education and related services within 120 days of the date that the student was referred for an evaluation or assessment. D.C. Code 38-2561.2(a) (formerly D.C. Code 38-2501(a)). The District of Columbia is the only jurisdiction that gives itself 120 d ays to provide an evaluation, which is 30 days more than Delaware, Maryland, and New Jersey, and 60 days longer than other states. Dunst Direct Testimony [2091] 16. N evertheless, the District has never achieved 100% timely eligibility determinations within 120 days. Id. at 18.
E. Transition from Part C to Part B 41. In its Annual Performance Reports, the District provided data on t he percentage of District of Columbia preschool-age children exiting Part C early intervention who were found eligible for Part B preschool special education and who received timely transitions by their third birthdays. Id. 42. The District of Columbia reported that 62% of all eligible children exiting Part C received timely transitions in 2007, 8.22% received timely transitions in 2008, a nd 30.25% received timely transitions in 2009. See Part B APR [FY] 2007 (2007–2008), Pls.’ Ex. 156; Part B APR [FY] 2008 (2008–2009), Pls.’ Ex. 157; Part B APR [FY] 2009 (2009–2010), Pls.’ Ex. 158; Maisterra Direct Testimony [210-3] ¶17. I n other words, 43% of all eligible children
12

exiting Part C did not receive timely transitions in 2007, 91.78% did not receive timely transitions in 2008, and 59.75% did not receive timely transitions in 2010.
43. From January through March 2010, the District of Columbia reported that 38% of all eligible children exiting Part C received timely transitions. Early Stages Scorecard, Pls.’ Ex. 179. The District also reported that 17% of eligible children received timely transitions in July 2010, 30% received timely transitions in November 2010, and 62% received timely transitions in December 2010. See Early Stages Scorecard, Pls.’ Ex. 180; Early Stages Scorecard, Pls.’ Ex. 181; Early Stages Scorecard, Pls.’ Ex. 182.
44. From October 1, 2010, through the end of February 2011, the District of Columbia provided timely transitions to 79% of all eligible children. T rial Transcript, Beers Cross Testimony, 175:16–22, Apr. 6, 2011. Defendants have never offered 100% timely transitions to eligible preschool-age children, as required by federal and District of Columbia law.
45. The fluctuation in the percentage of timely transitions offered to eligible preschool-age children in the District of Columbia indicates that it w ill be some time before defendants will be able to achieve and maintain 100% compliance with the IDEA’s timely transition requirement. Dunst Direct Testimony [209-1] 19.
F. Violations of Section 504—2008 to the Present 46. From 2008 to October 2009, the District of Columbia’s special education policies and practices were inadequately designed, supported, and implemented. Freund Expert Report [271-10] 12. The District did not have a comprehensive Child Find system, which contributed to its failure to identify, place, and track the expected number of children for either Part C or Part B Child Find services. Id. at 2.
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47. Defendants pursued the same ineffective special education practices of previous years, without achieving significant increases in the percentage of preschool-age children served, the percentage of timely initial evaluations and eligibility determinations, or the percentage of timely transitions. Dunst Direct Testimony [209-1] 27.
48. The District’s public awareness and outreach efforts and professional development and training of its staff did not facilitate the identification, placement, and tracking of the expected number of children for either Part C or Part B Child Find services. Freund Expert Report [271-10] 2. Defendants engaged in several public awareness activities, including the yearly distribution of newspaper announcements, radio public service notices, and the drafting of posters and written pamphlets that described to parents and guardians the District’s special education responsibilities. D unst Direct Testimony [209-1] 21. N one of these public awareness activities, by themselves, have been found nationally to be effective Child Find strategies. Id. With respect to outreach, the District continued to send “mixed messages” to potential referral sources. Id. While nearly all of the District’s documents describing outreach, Child Find, and referrals explained that referrals for special education services could be made by various professionals and programs, defendants acknowledge that a referral for Part B preschool education must come from the parent or guardian of the child. Id. “This practice is likely one reason why so few 3 to 5 year olds in the District were identified or enrolled in preschool education during that period and in previous years.” Id. at 22.
49. Defendants continued to rely on the same ineffective intake and screening procedures originally implemented at the Care Center in 2006. Id. The screening procedures were unreliable, informal, unstructured, and lacked the conditions necessary to identify and evaluate preschool-age children for special education services. Id. Accordingly, special education services for many preschool-age children were delayed. Id.
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50. As of June 2009, the District’s decision to centralize screenings and evaluations of preschool-age children at the Early Stages Center did not increase the number of timely evaluations and eligibility determinations due to the inconvenience of having to travel to the Early Stages Center. Id. at 22–23.
51. As a result, in 2007 and 2008, defendants lagged behind the average national rate for identifying and offering Part B services to preschool-age children. Id. at 9.
52. Since at least 1997, OSEP has worked with and informed the DCPS of its ongoing failure to identify, locate, and provide Part B services to eligible children ages three through five. 63 Fed. Reg. 41,370, 41,371 (Aug. 3, 1998).
53. On March 16, 1998, O SEP entered into a C ompliance Agreement with DCPS mandating full compliance with Part B of the IDEA. Id. According to this agreement, DCPS was required, inter alia, to “ensure and document that no later than three years after the effective date of this agreement . . . [a]n initial evaluation that meets the requirements of sections 614(a)(1), (b), and (c) of Part B of [the] IDEA is completed for all children with disabilities [i.e., that it is conducted within the 120-day timeframe established by District of Columbia law]” and that “[a] Child-Find system is established which identifies and locates all children with disabilities . . . .” Id. at 41,374.
54. In 2001, OSEP determined that DCPS had not met these and several other requirements detailed in the Compliance Agreement. See Letter from Patricia J. Guard to Paul L. Vance, Pls.’ Ex. 188. Based on t his determination, OSEP designated DCPS as a “high risk” grantee and attached Special Conditions to its FY 2001 grant under Part B. Id. Among the Special Conditions were requirements to ensure that DCPS conduct timely initial evaluations. Id.
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55. In each successive year, OSEP cited defendants for their failure to comply with
the Special Conditions related to providing timely initial evaluations and extended the Special
Conditions into the following fiscal year. See Letter from Stephanie S. Lee to Paul L. Vance,
Pls.’ Ex. 189; Letter from Lee to Vance, Pls.’ Ex. 190; Letter from Lee to Clifford Janey, Pls.’
Ex. 191; Letter from Troy R. Justesen to Janey, Pls.’ Ex. 192; Letter from Hudson La Force III to
Janey, Pls.’ Ex. 193; Letter from Guard to Michelle Rhee, Pls.’ Ex. 194; Letter from William W.
Knudson to Deborah Gist, Pls.’ Ex. 195.
56. On June 3, 2009, OSEP decided to withhold 20% of the District’s FY 2009 funds
due to defendants’ failure to abide by the terms of the Compliance Agreement. Letter from
Guard to Kerri L. Briggs, Pls.’ Ex. 196. OSEP explained its decision by stating:
Given the nature of the noncompliance noted in this letter and that D.C. has had Special Conditions placed on i ts grant award under Part B of the IDEA since 2001, the Department has concluded that D.C. would be unable to correct its problems in one year. D.C. previously entered into a compliance agreement with the Department under the IDEA from 1998–2001, and it did not result in compliance. W e therefore feel compelled to take a m ore serious enforcement action based on the magnitude of the noncompliance with the requirements of Part B of the IDEA and the length of that noncompliance. T he Department has significant concerns about D.C.’s inability to correct areas of longstanding noncompliance that directly affect the appropriate provision of special education and related services to D.C.’s children with disabilities. A s a result, . . . t he Department intends to withhold 20 pe rcent of D.C.’s [FY] 2009 funds reserved for State-level activities . . . unt il D.C. has sufficiently addressed the areas in which it “needs intervention.”
Id.
57. On June 16, 2009, defendants asked OSEP to reverse its decision to withhold
funds, noting that OSSE was “a new agency with new leadership resolute in its commitment to
correcting the identified areas of noncompliance . . . .” Letter from Briggs to Andrew J. Pepin,
Pls.’ Ex. 197. OSEP declined to reverse its decision, stating that:
[T]he Department can no l onger delay more serious enforcement action because of new leadership or a new agency. DC has a long history of turnover in the
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administration of the school system as a whole and in the administration of its special education program in particular. In the last three years, there have been four special education directors. In prior years when we have declined to take more serious enforcement action because new leadership had just arrived, the District continued to fail to meet many of the basic requirements of Part B of the IDEA. W hile the State organization and leadership changes, deficiencies in addressing the needs of children with disabilities remain, and many continue to be denied the free appropriate public education which they are entitled to under Part B of the IDEA.
Letter from Pepin to Briggs, Pls.’ Ex. 198.
58. OSEP also declared its great reluctance to enter into another agreement with
defendants: “We have entered into agreements with DC before with little result. For example,
every year since [FY] 2001 . . . DC has assured the Department that it will meet all grant terms
and conditions and all applicable requirements, but it has not carried out its commitments.” Id.
Nevertheless, OSEP and OSSE entered into a Memorandum of Agreement “to establish
benchmarks and reporting requirements . . . t o bring the OSSE into substantial compliance with
the IDEA” and “to resolve their dispute over the status of State-level funds withheld by the
Department from the [FY] 2009 Part B grant award.” Pls.’ Ex. 160. A ccording to the
Memorandum of Agreement, id., OSSE would only receive the withheld funds after it reported
on specific dates that it had met the corresponding benchmarks for the reporting period. Among
these benchmarks, OSSE was required to show timely initial evaluations and placements to
children with disabilities. Id.
59. Defendants did not meet these benchmarks. In their six subsequent progress
reports, the District reported providing initial evaluations and placements to 65.4%, 70%, 68%,
73%, 70%, and 60% of children with disabilities, which fell below the benchmarks of 75%, 80%,
85%, 90%, 95%, and 100%, respectively. Memorandum of Agreement Progress Report
(“MAPR”) #1, Pls.’ Ex. 199; MAPR #2, Pls.’ Ex. 200; MAPR #3, Pls.’ Ex. 161; MAPR #4, Pls.’
Ex. 162; MAPR #5, Pls.’ Ex. 163; MAPR #6, Pls.’ Ex. 226. 17

G. Inadequacy of Policies and Changes as a Result of Lawsuit 60. In July 2009, t he DCPS hired Dr. Nathaniel Beers as Executive Director of the Early Stages Center. Freund Direct Testimony [271-9] ¶4. Defendants believed that Dr. Beers was “uniquely situated to lead the effort to address shortcomings in [the District’s] child find system which is the key issue in the DL litigation . . .” and that “getting Dr. Beers in to lead early stages may be [the] difference between winning or losing [the] case.” E-mail from Tameria Lewis, OSSE, to Richard Nyankori, DCPS, Pls.’ Ex. 227. Dr. Beers was instructed to “prepare as best . . . [as] possible to improve the chances of a successful outcome for the District relative to [this] case.” 30(b)(6) Beers Dep., 9, Mar. 1, 2011. 61. From June 1, 2009 t o October 5, 2009, t he District of Columbia restructured and reorganized the Early Stages Center (previously the Care Center) to serve as the primary facility for providing Part B screenings, evaluations, and eligibility determinations for children ages three through five in the District of Columbia. Defs.’ Supplemental Resps. Pls.’ Second Set Interrogs., Appx. 1, Pls.’ Ex. 143. 62. The restructuring of the Early Stages Center and changes to the District’s Child Find policies occurred because of pressures placed by this lawsuit on the District of Columbia to abide by their Child Find-related obligations, including increasing their identification rate of children with disabilities and the timeliness of evaluations. Family Care Manual [271-21], Pls.’ Ex. 152; see also E-mail from Ayo Bryant, Mayor’s Office, to Margaret McLeod, OSSE, Pls.’ Ex. 219; E-mail from Neela Rathinasamy, DCPS, to Tameria Lewis, OSSE, Pls.’ Ex. 218; Email from Phyllis Harris, Deputy Chancellor, DCPS, to Eric Lerum, Pls.’ Ex. 215; E-mail from Rathinasamy to Richard Schackell, DCPS, Pls.’ Ex. 221; E-mail from Beth Colleye, OSSE, to Amy Maisterra, OSSE, Pls.’ Ex. 228.
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63. OSSE proposed regulatory changes to their special education policies that were scheduled for public comment in October 2009. Freund Expert Report [271-10] 6–7. Among the changes was the addition of language that recommended that the planning for a child’s transition from Part C to Part B begin 12 months, rather than 90 days, prior to the child’s third birthday. Id. at 7. These changes also resulted from this litigation. Memorandum, Pls.’ Ex. 234 at 2, 3.
64. Despite these reforms, the District of Columbia continues to struggle to comply with their legal obligations to provide special education and related services. See Findings Nos. 65–81.
65. Defendants’ expert witness testified that a “ continuity of leadership is an important prerequisite to a well-functioning Part B Child Find system . . . .” Freund Direct Testimony [271-9] ¶4.
66. The District of Columbia “has a long history of turnover in the administration of the school system as a whole and in the administration of its special education program in particular. In the last three years, there have been four special education directors.” Letter from Andrew J. Pepin to Briggs, Pls.’ Ex. 198.
67. Since 2008, D istrict of Columbia staff and Local Education Agencies (“LEAs”) have failed to adhere to their Child Find-related responsibilities, due to a g eneral lack of consistent oversight, training, and monitoring. Maisterra 30(b)(6) Dep. 163. These failures are also a function of an “entrenched” level of noncompliance and misunderstanding of the District’s Child Find-related obligations among all levels of the staff and leadership. Id. at 231–32.
68. Dr. Nathaniel Beers acknowledged that “it would take at least three to five years” to ensure that the recent reforms to the District’s special education policies and to the Early
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Stages Center are “stabilized and headed in the appropriate trajectory.” Trial Transcript, Beers Cross Testimony, 9:3–5, Apr. 7, 2011.
69. On May 13, 2011, Dr. Richard Nyankori resigned as the Deputy Chancellor for Special Education. Pls.’ Ex. 238. In a memorandum to the DCPS staff, Dr. Nyankori explained that Dr. Beers would replace him as the chief (formerly known as Deputy Chancellor) of special education and that Heather Elliott would replace Dr. Beers, as the Executive Director of Early Stages. Id. These significant personnel changes are a continuation of prior leadership and staffing changes, which have contributed to defendants’ failure to comply with their Child Findrelated obligations. Freund Expert Report [271-10] 3.
70. In May 2010, J erri Johnston-Stewart, the Program Manager at OSSE, explained that “[t]he new policies and procedures implemented by the Part B Early Stages Center have negatively impacted Part C families transitioning out of the Early Intervention Services . . . . Many of these families and organizations have or are requesting to file state complaints. Parent/Community dissatisfaction with the provision of services currently provided by the Part B Early Stages has implications of future dissatisfaction and prospective litigation against the Part C program.” E-mail from Jerri Johnston-Stewart, OSSE, to Alison Whyte, Pls.’ Ex. 233. F or instance, as of November 2010, defendants acknowledged that at least four parents per day contacted the Early Stages Center to report that a Child Find Field Coordinator had failed to return their calls regarding providing their children with an evaluation or an eligibility screening. E-mail from Carole Pratt to Sean Compagnucci, Pls.’ Ex. 225. Furthermore, community based Head Start programs are unable consistently to access services from DCPS even though both the IDEA and Head Start federal law require coordination and timely provision of services. E-mail from Johnston-Stewart to Whyte, Pls.’ Ex. 233.
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71. On June 3, 2010, O SEP determined, for the fourth consecutive year, that the District of Columbia “needs intervention” in complying with the requirements of Part B of the IDEA. Letter from Alexa Posny to Kerri L. Briggs, Pls.’ Ex. 159. OSEP made its determination after noting, inter alia, defendants’ failure to provide valid and reliable FY 2008 data for early childhood transition rates and their failure to comply with the Special Conditions related to providing timely initial evaluations and re-evaluations. Id.
72. The District continues to struggle with “friction between [the Part] C and [Part] B teams.” E-mail from Amy Maisterra, OSSE, to Jerri Johnston-Stewart, OSSE, Pls.’ Ex. 235. See also E-mail from Nathaniel Beers to Maisterra, Pls.’ Ex. 231.
73. For four consecutive years, OSEP has cited DCPS’s failure to provide valid and reliable data for early childhood transition. See, e.g., Letter from Posny to Briggs, Pls.’ Ex. 159; see also E-mail from Kerda DeHaan, OSSE, to Sharon Walsh, OSSE, Pls.’ Ex. 229.
74. Despite developing a n ew Special Education Data System (“SEDS”) in May 2008, defendants have struggled to maintain, analyze, and provide reliable data that reflects the number of children served with special education services. Dunst Direct Testimony [209-1] 25– 26. T he database extracts provided to both Drs. Dunst and Cupingood contained duplicate, incomplete, and inconsistent information for preschool-age children. Id.; Cupingood Direct Testimony [209-2] 3–6.
75. The Early Stages Center’s own data management system relies on this same incomplete and inaccurate data collected by SEDS. Dunst Direct Testimony [209-1] 25.
76. The District of Columbia’s special education policies are hampered by budget cuts and funding concerns.
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77. The District will need more funding, resources, and staff members as they expand the number of children identified and served with special education services. Beers Direct Testimony [210-1] ¶43.
78. Budget cuts and shortages have led to a District-wide hold on hi ring, causing extended vacancies in key positions, such as Part B Child Find coordinators, responsible for providing LEAs with training and technical assistance to ensure compliance with Child Find requirements. Maisterra 30(b)(6) Dep. 49–50.
79. There are increased costs associated with the transportation of students with special needs and with tuition for nonpublic placements, which “continue to drain a substantial portion of [the] DCPS budget, leaving far less for much-needed programming and critical resources.” E-mail from Amy Maisterra, OSSE, to Tameria Lewis, OSSE, Pls.’ Ex. 231.
80. In 2010, approximately 2,700 students with disabilities were enrolled in nonpublic placements, at a projected yearly cost of $283 million for tuition and transportation. Id. at 3. These costs have forced DCPS to explore cost-cutting options, including the reintegration of students with disabilities in public schools. Id. DCPS subsequently experienced setbacks in its reintegration efforts, when several parents of students with disabilities complained about the lack of communication, the abrupt nature of the reintegration efforts, the unwelcomed pressure from overzealous placement personnel, and the disregard for the individual needs of students. Id. In response to this criticism, DCPS issued a public apology and expressed its intention to “revamp the faulty reintegration plan.” Id. at 3–4.
81. The District has provided no assurances that the Child Find budget will continue to receive even the same level of funding as in past years, despite acknowledging that defendants will need more money than in past years if more children are expected to be served with special education services. Beers 30(b)(6) Dep. 260–61. “Even with additional funds, DCPS must still
22

address nearly $50 million in lost revenues or increasing costs FY 12.” DCPS Press Release, Pls.’ Ex. 224.
82. Based on his experience and research regarding effective Child Find practices, Dr. Dunst believes that the District of Columbia should take the steps listed in paragraphs 83–97 to ensure that an effective and sustainable Child Find system is implemented, so that all eligible preschool-age children are offered special education and related services. D unst Direct Testimony [209-1] 30.
83. Defendants should maintain and regularly update a l ist of primary referral sources, including physicians, hospitals, and other health providers; day care centers, child care centers, and early childhood programs; District of Columbia departments and agencies; community and civic organizations; and advocacy organizations. D efendants should also develop a s ystem to track frequency of contacts with referral sources to ensure that outreach occurs on a regular basis. Id. at 30–31.
84. Defendants should develop and publish printed materials targeted to parents and guardians that inform them of the preschool special education and related services available from DCPS, the benefits and cost-free nature of these services, and how to obtain the services. These materials should be written at an appropriate reading level and be translated into the primary languages spoken in the District. T hese materials should be distributed to all primary referral sources (e.g., medical professionals and child care staff), public and public charter schools, public libraries, Income Maintenance Administration Service Centers, public recreation facilities, and other locations designed to reach as many parents or guardians of preschool children who may be eligible for special education and related services as possible. Id. at 31.
85. Defendants should develop, publish, and distribute tailored printed materials targeted at primary referral sources to inform them of the preschool special education and related
23

services available from DCPS, the benefits and cost-free nature of these services, and how to make a r eferral. These materials should be used in conjunction with regular contacts with primary referral sources to increase the usefulness of the materials. Id.
86. Defendants should ensure that Early Stages outreach staff (e.g., the Child Find Field Coordinators) contact primary referral sources or a staff member in the primary referral source’s office who are instrumental in making referrals at least once a m onth until a r eferral relationship is established and then every three months thereafter. The initial meetings should be face-to-face whenever possible when pursuing referrals from new referral sources and then less frequently thereafter, using the method of contact preferred by the referral sources (e.g., e-mail, texting, and telephone calls). Id. at 31–32.
87. Defendants should accept both oral and written referrals at the start of the eligibility determination process, make multiple attempts using different forms of communication (e.g., telephone, postal mail, and electronic mail) to contact the parent or guardian of a referred child, and, upon obtaining the consent of the parent or guardian, provide feedback to the referral source regarding the outcome of the referral in a timely manner. Id. at 32.
88. Defendants should assign each family served by Early Stages a single staff member to act as its “case manager” throughout the screening, 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. Id.
89. Defendants should maintain a cen tral location that accepts formal and informal referrals; conducts initial meetings, screenings, assessments, eligibility determinations, IEP
24

development, and offers of placement; and permits parents to register their children with DCPS. Id.
90. Defendants should open a satellite location for Early Stages in Southeast, D.C., 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. Id.
91. Defendants should open additional satellite sites to perform the same functions in other wards or use a mobile evaluation unit that is able to perform these functions at multiple locations throughout the District as more children are located who may be in need of preschool special education. Id.
92. Defendants should conduct regular screenings of preschool-age children in each ward of the District, and especially in wards in which children experience multiple risk factors. Id.
93. Defendants should use existing data (e.g., medical records and reports of prior assessments) at the time of referrals to the extent possible to eliminate unnecessary and duplicative screenings and assessments for eligibility determination purposes. Id. at 33.
94. Defendants should 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. Id.
95. Defendants should maintain a r eliable data-sharing system between Part C and Part B to ensure that Early Steps receives an ongoing monthly report of all children who will be aging out of Part C within the following six months in order to ensure timely transition meetings. Id.
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96. Defendants should maintain a reliable database system for tracking children through the Child Find process: from referral to eligibility determination and, if eligible, IEP development placement and provision of identified services. Id.
97. Defendants should maintain a reliable system for tracking the number and type of placements available for preschool special education and related services throughout the year and expanding the number and types of placement as needed. Id. III. CONCLUSIONS OF LAW
A. Background 98. This matter is a class action brought on behalf of a class of children who reside in or are wards of the District of Columbia, and either were not identified, located, evaluated, and offered special education and related services when they were between the ages of three and five years old, inclusive, or have not been identified, located, evaluated, and offered special education and related services when they are between the ages of three and five years old, inclusive, despite being eligible for such services. Am. Compl. [61] 1–2. 99. Defendants are the District of Columbia, Kaya Henderson, in her official capacity as the Interim Chancellor of the District of Columbia Public Schools (“DCPS”), and Hosanna Mahaley Johnson, in her official capacity as the Acting State Superintendent of Education. 100. As Interim Chancellor, Ms. Henderson is responsible for the administration of DCPS, including the implementation of District of Columbia and federal laws related to special education, such as Part B of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; D.C. Code 38-174(a), (c)(3). 101. As Acting State Superintendent, Ms. Johnson supervises the Office of the State Superintendent of Education (“OSSE”), serves as the chief state school officer for the District of Columbia, and represents the District in all matters before the United States Department of
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Education. OSSE, and therefore Ms. Johnson, are also responsible for administering the Early Intervention Program, which provides early intervention services in accordance with Part C of the IDEA. D.C. Code 38-2601.01(a).
102. The rights which plaintiffs seek to enforce arise under provisions of the IDEA, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and District of Columbia law. This Court has jurisdiction over plaintiffs’ remaining claims pursuant to 28 U.S.C. §§ 1331 and 1367.
103. In its August 2010 Memorandum Opinion [198], this Court dismissed plaintiffs’ claims under Section 1983 to enforce the IDEA and Section 504 of the Rehabilitation Act. DL, 730 F. Supp. 2d a t 89–93. P laintiffs subsequently moved voluntarily to dismiss their claims under the “stay put” provision of the IDEA, 20 U.S.C. § 1415(j), the Due Process Clause, U.S. CONST. amend. V, and District of Columbia regulations regarding a free appropriate public education (“FAPE”) for “highly mobile children,” 5 D.C.M.R. § 300 2.1(e). See Joint Motion [200] 2, Sept. 15, 2010. The Court granted plaintiffs’ motion. Order [201] 1, Sept. 22, 2010.
104. Plaintiffs and the class they represent bring each of their remaining claims against all defendants.
B. FAPE Violation 105. The IDEA’s primary mandate is “to ensure that all children with disabilities have available to them a f ree appropriate public education that emphasizes special education and related services designed to meet their unique needs . . . .” 20 U.S.C. § 1400(d)(1)(A). 106. 20 U.S.C. § 1412(a) makes Part B funding available if the State “has in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities residing in the State between ages 3 and 21, inclusive . . . .” 107. The term “free appropriate public education” means special education and related services that:
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(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State education agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [section 1414(d)].
20 U.S.C. § 1401(9).
108. District of Columbia law incorporates the federal FAPE obligations and requires:
All local education agencies (LEA) in the District of Columbia [to] ensure, pursuant to the Individuals with Disabilities Education Act (IDEA), that all children with disabilities, ages three to twenty-two, who are residents or wards of the District of Columbia, have available to them a free appropriate public education (FAPE) and that the rights of these children and their parents are protected.
5 D.C.M.R. § 3000.1.
109. 5 D.C.M.R. § 3002.1(a) also requires the LEA to provide a FAPE to each child
with a disability.
110. This Court has previously held that, “at least through and including the year 2007,
defendants denied a FAPE to a large number of children aged 3 to 5 years old, in violation of §
1412(a)(1)(A) of the IDEA.” DL, 730 F. Supp. 2d at 95.
111. Based on paragraphs 23–32 of the above findings of fact, the Court holds that,
from 2008 t o April 6, 2 011 (the first day of trial), defendants failed to provide a FAPE to a
substantial number of District of Columbia children with disabilities, ages three to five years old,
in violation of 20 U.S.C. § 1412(a)(1)(A) of the IDEA.
112. This Court has previously held, based upon its determination that defendants had
violated § 1412( a)(1)(A) of the IDEA, that “at least through and including the year 2007,
defendants’ actions constitute violations of District of Columbia law, D.C. Mun. Regs. tit. 5, §§
3000.1, 3002.1(a), 3002.1(d), and 3002.3(a), because this local law creates the same standards as
those in federal law.” Id. at 24.
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113. Based upon paragraphs 23–32 of the above findings of fact, the Court holds that,
from 2008 to April 6, 2011 (the first day of trial), defendants failed to provide a FAPE to District
of Columbia children with disabilities, ages three to five years old, in violation of District of
Columbia law, 5 D.C.M.R. §§ 3000.1 and 3002.1(a).
C. Child Find Violation 114. In order to ensure that all children ages 3 to 21 receive a FAPE, the IDEA
requires that:
All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the Sate and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
20 U.S.C. § 1412(a)(3)(A). In NG v. District of Columbia, 556 F . Supp. 2d 11, 16 (D.D.C.
2008), this Court explained that this “Child Find” obligation requires that:
[e]very public school system [] identify students who might be disabled and evaluate those students to determine whether they are indeed eligible. As soon as a child is identified as a potential candidate for services, DCPS has the duty to locate that child and complete the evaluation process.
115. Under the IDEA and its implementing regulations, jurisdictions receiving funding
must ensure that all children identified as potential candidates for special education and related
services are provided an initial evaluation within 60 days of receiving parental consent or within
an alternative timeframe specified by the statute. 20 U .S.C. § 1414( a)(1)(C). D istrict of
Columbia law extends the 60-day period established by the IDEA to 120 days, beginning from
“the date that the student was referred for an evaluation or assessment.” D.C. Code 38-2561.2(a)
(formerly D.C. Code 38-2501(a)).
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116. Following the initial evaluation, the IDEA and its implementing regulations require defendants, within 120 days, to conduct an eligibility determination into whether a child is disabled and needs special education and related services. 20 U.S.C. § 1414(b)(4); 34 C.F.R. 300.534, 300.306(a).
117. 5 D.C.M.R. § 3002.1(d) incorporates the federal Child Find obligations by requiring “[t]he LEA [to] ensure that procedures are implemented to identify, locate, and evaluate all children with disabilities residing in the District who are in need of special education and related services . . . .”
118. This Court has previously held that, “at least through and including the year 2007, defendants failed to comply with their Child Find duties, in violation of § 1412(a)(3)(A) of the IDEA.” DL, 730 F. Supp. 2d at 97.
119. Based on paragraphs 23–37 of the above findings of fact, the Court holds that, from 2008 t o April 6, 2 011 (the first day of trial), defendants failed to identify and provide timely initial evaluations to all preschool-age children with disabilities in the District of Columbia, in violation of 20 U.S.C. §§ 1412(a)(3)(A) and 1414(a)(1)(C).
120. Based on paragraphs 38–40 of the above findings of fact, the Court holds that, from 2008 t o April 6, 2011 (the first day of trial), defendants failed to offer timely eligibility determinations to all preschool-age children with disabilities in the District of Columbia, in violation of 20 U.S.C. § 1414(b)(4).
121. This Court has previously held, based upon its determination that defendants had failed to comply with their Child Find obligations under the IDEA, that “at least through and including the year 2007, defendants’ actions constitute violations of District of Columbia law, D.C. Mun. Regs. tit. 5, §§ 3000.1, 3002.1( a), 3002.1(d), and 3002.3(a), because this local law creates the same standards as those in federal law.” DL, 730 F. Supp. 2d at 100.
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122. Based on paragraphs 23–37 of the above findings of fact, the Court holds that,
from 2008 t o April 6, 2 011 (the first day of trial), defendants failed to identify and provide
timely initial evaluations to all preschool-age children with disabilities in the District of
Columbia, in violation of District of Columbia law, 5 D.C.M.R. §§ 3000.1, 3002.1(d), D.C. Code
38-2561.2(a).
123. Based on paragraphs 38–40 of the above findings of fact, the Court holds that,
from 2008 t o April 6, 2011 (the first day of trial), defendants failed to offer timely eligibility
determinations to all preschool-age children with disabilities in the District of Columbia, in
violation of District of Columbia law, 5 D.C.M.R. §§ 3000.1, 3002.1(d).
D. Transition Violation
124. The IDEA requires a State to provide assurances to the United States Department
of Education that it:
has in effect policies and procedures to ensure that . . . [c]hildren participating in early intervention programs assisted under [Part C], and who will participate in preschool programs assisted under [Part B], experience a s mooth and effective transition to those preschool programs in a manner consistent with section 1437(a)(9) of [the IDEA]. By the third birthday of such a child, an individualized education program or . . . a n individualized family service plan has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency . . . .”
20 U.S.C. § 1412(a)(9). Section 1437(a)(9), incorporated in this provision, requires a State, as
part of its annual application for Part C funding, to explain how:
(I) the families of such toddlers and children [exiting Part C] will be included in the transition plans . . . and (ii) the [Part C] lead agency . . . will (I) notify the [Part B] local educational agency for the area in which such a ch ild resides that the child will shortly reach the age of eligibility for preschool services . . . ; [and] (II) . . . convene a conference among the [Part C] lead agency, the family, and the [Part B] local educational agency not less than 90 days (and at the discretion of all such parties, not more than 9 months) before the child is eligible for the preschool services, to discuss any such services that the child may receive . . . .”
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20 U.S.C. § 1437(a)(9). 125. This Court has previously held that, “at least through and including the year 2007,
defendants failed to comply with their obligation to ensure a smooth and effective transition for disabled children from Part C to Part B, in violation of § 1412(a)(9) of the IDEA.” DL, 730 F. Supp. 2d at 98.
126. Based on p aragraphs 41–45 of the above findings of fact, the Court holds that from 2008 to April 6, 2011 (the first day of trial), defendants failed to comply with their legal obligation to ensure a smooth and effective transition for disabled children from Part C to Part B, in violation of 20 U.S.C. § 1412(a)(9).
E. Section 504 Violation 127. Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from 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). 128. Section 504 f urther states that, “[f]or the purposes of this section, the term ‘program or activity’ means all of the operations of . . . a local educational agency . . . or other school system . . . . “ Id. § 794(b)(2)(B). 129. The implementing regulations for Section 504 declare that “[a] recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. 104.33(a). 130. This Court has previously held that defendants may be liable under Section 504 of the IDEA if defendants show either “bad faith or gross misjudgment” in failing to comply with their legal obligations. DL v. District of Columbia, 450 F . Supp. 2d 21, 23 ( D.D.C. 2006).
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Specifically, defendants are required to “exercise[] professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals.” Id.
131. Based on paragraphs 46–51 of the above findings of fact, the Court holds that, from 2008 to April 6, 2011 (the first day of trial), the District of Columbia’s special education policies were a gross departure from accepted educational practices throughout the country.
132. Based on paragraphs 52–59 of the above findings of fact, the Court holds that, from 2008 t o April 6, 2011 ( the first day of trial), the District of Columbia knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations.
133. Based on paragraphs 23–59 of the above findings of fact, the Court holds that, from 2008 t o April 6, 2 011 (the first day of trial), defendants 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 under the IDEA, in violation of 29 U.S.C. § 794(a) of the Rehabilitation Act.
F. Entitlement to Declaratory Relief 134. Declaratory relief is warranted when “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality . . . .” Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). 135. Based on paragraphs 23–81 of the above findings of fact, the Court holds that, from 2008 t o April 6, 2011 ( the first day of trial), there has been a substantial controversy of sufficient immediacy and reality due to defendants’ failure to identify, locate, evaluate, and offer plaintiffs a free appropriate public education and failure to ensure a smooth and effective transition from Part C to Part B for eligible preschool-age children in the District of Columbia.
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136. This Court therefore will issue a declaratory judgment that extends the holdings of its August 10, 2010 M emorandum Opinion, DL, 730 F. Supp. 2d at 94–100, to the period from January 1, 2008 t o April 6, 2011 (the first day of trial) and declares that defendants are in violation of the IDEA and District of Columbia law because they have failed and continued to fail to ensure that:
(a) A free appropriate public education is available to all children with disabilities who reside in or are wards of the District of Columbia between the ages of three and five, inclusive, in violation of 20 U .S.C. § 1 412(a)(1)(A) and 5 D .C. Mun. Regs. §§ 3001.1, 3002.1(a);
(b) All children between the ages of three and five, who reside in or are wards of the District of Columbia who are in need of special education and related services, are identified, located, and evaluated within 120 da ys of referral, in violation of 20 U.S.C. § 1412(a)(3)(A), D.C. Code § 38-2561.02(a), and 5 D.C. Mun. Regs. §§ 3002.1(d), 3002.3(a); and
(c) All children participating in Part C early intervention and who will participate in Part B preschool education experience a smooth and effective transition to Part B by their third birthdays, in violation of 20 U.S.C. § 1412(a)(9).
137. The Court further extends the holding of its August 10, 2010 Memorandum Opinion, id. at 21–23, and declares that 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.
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G. Entitlement to Injunctive Relief 138. “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.” U.S. v. Or. State Med. Soc’y, 343 U.S. 326, 333 (1952). 139. Injunctive relief may be granted when (a) plaintiffs prevail on the merits; (b) plaintiffs demonstrate irreparable injury if the injunction is not granted; (c) the denial of the injunction would cause greater injury to plaintiffs than granting the order would cause the defendants; and (d) the injunction furthers the public interest. Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987). 140. 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. See Findings Nos. 60–63. 141. This Court also finds that defendants have not shown clear proof of an intent to permanently alter or abandon their ongoing failure to provide special education and related services to preschool-age children. See Findings Nos. 64–81. 142. This Court has found defendants liable for violating the IDEA, Section 504 of the Rehabilitation Act, federal implementing regulations, and District of Columbia law. 143. The Court finds that these violations result in irreparable injury to all eligible children between the ages of three and five years old, inclusive, who live in, or are wards of, the District of Columbia, and whom defendants did not identify, locate, evaluate, or offer special education and related services. W ithout access to these special education and related services, preschool-age children in the District of Columbia suffer substantial harm by being denied vital educational opportunities that are essential to their development.
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144. A permanent injunction requiring defendants to do not hing more than comply with their legal obligations cannot, by definition, harm defendants. Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986). In a case involving a preliminary injunction requiring DCPS to pay the cost of special education placements or related services to private providers, this Court held that:
While the Court appreciates DCPS’s financial straits, it cannot accept defendants’ implicit claim that financial hardship justified the risk to the class members that DCPS seeks to impose, a risk that directly results from DCPS’s own failure to follow the law. A s the Court stated seven years ago: “[D]ifficult financial constraints do not relieve the District of Columbia from its statutory obligations. Unless . . . relief is provided by the City Council or, in this case, the Congress, “[t]he Court’s role . . . i s to enforce existing law, not to recast the statute to ameliorate the District’s financial crisis.” Petties v. District of Columbia, 238 F. Supp. 2d, 88, 99 (D.D.C. 2002) (quoting Petties v. District of Columbia, 881 F. Supp. 63, 70 (D.D.C. 1995)). 145. The public interest will be served by compelling defendants to offer special education and related services in accordance with applicable law. In 1975, Congress enacted the IDEA to “ensure that the rights of children with disabilities . . . a re protected.” 20 U .S.C. § 1400(d)(1)(B). Therefore, this Court will further the public interest by requiring defendants to provide special education and related services to all eligible preschool-age children. In the words of the Court of Appeals for the Seventh Circuit: “We also fail to see how enforcing a statute designed to promote the public welfare disserves the public.” Haskins, 794 F.2d at 1277. 146. The Court, therefore, permanently enjoins defendants from further violations of the IDEA and District of Columbia law, and directs the following corrective actions:
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NUMERICAL REQUIREMENTS 147. Defendants shall ensure that at least 8.5 percent of children between the ages of three and five years old, inclusive (hereafter, “preschool children”), who reside in or are wards of the District of Columbia, are enrolled in special education and related services under Part B of the IDEA. Until the target of 8.5 percent is reached, defendants shall:
(a) Increase the number of referrals of preschool children that defendants obtain by 25 percent in the first full year, starting on t he first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 20 percent each subsequent year; and
(b) Increase the percentage of preschool children in the District of Columbia enrolled in Part B by 1 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 0.5 percent each subsequent year.
148. Defendants shall ensure that at least 95 percent of all preschool children referred for Part B services receive a timely initial evaluation.
(a) Until the target of 95 percent is reached, defendants shall increase the percentage of preschool children referred for Part B services who receive a t imely initial evaluation by 10 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 5 percent each subsequent year.
(b) An initial evaluation shall be considered timely if it is completed within the period then-prescribed by federal and local statute. A ccording to local statute, defendants currently have 120 da ys from the date of referral to provide a timely initial evaluation. “Date of referral” is defined as the date on which defendants 37

receive a written or oral request for assessment of a preschool child including the child’s name and age, the parent’s or guardian’s name, mailing address or telephone number, and the basis for referral. 149. Defendants shall ensure that at least 95 percent of all preschool children referred for Part B services receive a timely eligibility determination. (a) Until the target of 95 percent is reached, defendants shall increase the percentage of preschool children referred for Part B services who receive a timely eligibility determination by 10 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 5 percent each subsequent year. (b) An eligibility determination shall be considered timely if it is completed within the period then-prescribed by federal and local law. According to District of Columbia law, defendants have 120 da ys from the date of referral to make an eligibility determination. “D ate of referral” is defined as the date on which defendants receive a written or oral request for assessment of a preschool child including the child’s name and age, the parent’s or guardian’s name, mailing address or telephone number, and the basis for referral. 150. Defendants shall ensure that at least 95 percent of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays. (a) Until the target of 95 percent is reached, defendants shall increase the percentage of timely transitions by 10 percent in the first full year, starting on the first of the next month after the date of this Memorandum Opinion and accompanying Order, and an additional 5 percent each subsequent year.
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(b) A child’s transition will be considered timely if the child receives an IEP listing both the type of placement and a specific location for services (i.e., where the IEP will be implemented) by his or her third birthday.
PROGRAMMATIC REQUIREMENTS 151. Defendants shall maintain and regularly update a list of primary referral sources, including physicians, hospitals, and other health providers; day care centers, child care centers, and early childhood programs; District of Columbia departments and agencies; community and civic organizations; and advocacy organizations. Defendants shall also develop a system to track frequency of contacts with the referral sources to ensure that outreach occurs on a regular basis. See Finding No. 83. 152. Defendants shall develop and publish printed materials targeted to parents and guardians that inform them of the preschool special education and related services available from DCPS, the benefits and cost-free nature of these services, and how to obtain the services. These materials shall be written at an appropriate reading level and be translated into the primary languages spoken in the District. T hese materials shall be distributed to all primary referral sources (e.g., medical professionals and child care staff), public and public charter schools, public libraries, Income Maintenance Service Centers, public recreation facilities, and other locations designed to reach as many parents or guardians of preschool children who may be eligible for special education and related services as possible. See Finding No. 84. 153. Defendants shall develop, publish, and distribute tailored printed materials targeted at primary referral sources to inform them of the preschool special education and related services available from DCPS, the benefits and cost-free nature of these services, and how to make a referral. These materials shall be used in conjunction with regular contacts with primary referral sources to increase the usefulness of the materials. See Findings No. 85.
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154. Defendants shall ensure that Early Stages outreach staff (e.g., the Child Find Field Coordinators) contact primary referral sources or a staff member in the primary referral source’s office who are instrumental in making referrals at least once a month until a referral relationship is established and then every three months thereafter. The initial meeting shall be face to face whenever possible when pursuing referrals from new referral sources and then less frequently thereafter, using the method of contact preferred by the referral sources (e.g., e-mail, texting, or telephone calls). See Finding No. 86.
155. Defendants shall accept both oral and written referrals at the start of the eligibility determination process, make multiple attempts using different forms of communication (e.g., telephone, postal mail, and e-mail) to contact the parent or guardian of a referred child, and, upon obtaining consent of the parent or guardian, provide feedback to the referral source regarding the outcome of the referral in a timely manner. See Findings No. 87.
156. Defendants shall assign each family served by Early Stages a single staff member to act as its “case manager” throughout the screening, 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. See Findings No. 88.
157. Defendants shall maintain a central location that: accepts formal and informal referrals; conducts initial meetings, screenings, assessments, eligibility determinations, IEP development, and offers of placement; and permits parents to register their child with DCPS. See Findings No. 89.
158. Defendants shall open a satellite location for Early Stages in Southeast, D.C. 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. See Findings No. 90.
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159. Defendants shall regularly assess the need for and, as necessary, open additional satellite sites to perform the same functions in other wards or use a mobile evaluation unit that is able to perform these functions at multiple locations throughout the District as more children are located who may be in need of preschool special education. See Findings No. 91.
160. Defendants shall conduct regular screenings of preschool-age children in each ward of the District, and especially in wards in which children experience multiple risk factors. See Findings No. 92.
161. Defendants shall use existing data (e.g., medical records and reports of prior assessments) at the time of referrals to the extent possible to eliminate unnecessary and duplicative screenings and assessments for eligibility determination purposes. See Findings No. 93.
162. 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. See Findings No. 94.
163. Defendants shall maintain a reliable data-sharing system between Part C and Part B to ensure that Early Stages receives an ongoing monthly report of all children that will be aging out of Part C within the following six months in order to ensure timely transition meetings. See Findings No. 95.
164. Defendants shall maintain a reliable database system for tracking children through the Child Find process: from referral to eligibility determination and, if eligible, IEP development placement and provision of identified services. See Findings No. 96.
165. Defendants shall maintain a r eliable system for tracking the number and type of placements available for preschool special education and related services throughout the year and expanding the number and types of placement as needed. See Findings No. 97.
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MODIFICATION REQUIREMENTS 166. The numerical requirements for the percentage of preschool children enrolled in Part B set forth in paragraphs 147–49 above may only be modified by order of the Court upon a showing that the percentage (i.e., 8.5 percent) does not accurately reflect the number of preschool children who reside in or are wards of the District of Columbia expected to be eligible for Part B services and that defendants should expect to enroll through an effective Child Find system. 167. The programmatic requirements set forth in paragraphs 150–64 above may be modified by order of the Court. In order to obtain modification by order of the Court, defendants must show that either:
(a) They have carried out the requirement for a reasonable period of time and it has proven to be effective; or
(b) Another action, to be substituted for the requirement that defendants’ wish to modify, would be at least as effective.
REPORTING 168. Defendants shall provide annual reports to plaintiffs and this Court regarding their compliance with the numerical requirements set forth in paragraphs 147–49 above and biannual reports (i.e., every six months) regarding the programmatic requirements set forth in paragraphs 150-64 above. 169. The accompanying Order shall remain in effect until defendants have demonstrated sustained compliance with the numerical requirements set forth in paragraphs 147– 49 above, specifically:
(a) Percentage of preschool children enrolled in Part B (8.5 percent); (b) Percentage of timely eligibility determinations (95 percent); and
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(c) Percentage of timely transitions from Part C to Part B (95 percent). 170. The period of sustained compliance shall begin after defendants, during a single year (“the baseline year”), meet or exceed all three numerical requirements. 171. Following the baseline year, defendants may show sustained compliance:
(a) In two years if, in the year following the baseline year (Year 1), defendants increase the percentage of preschool children enrolled in Part B to at least 9.5 percent and meet or exceed the other two numerical requirements and, in the subsequent year (Year 2), defendants increase the percentage of preschool children enrolled in Part B to at least 10.5 percent and meet or exceed the other two numerical requirements; or
(b) In three years if, in the three years immediately following the baseline year (Years 1, 2, and 3) defendants meet or exceed all three numerical requirements.
172. If defendants fail to meet any of the numerical requirements in Years 1, 2, or 3, defendants must establish a new baseline year of compliance before being able to show sustained compliance.
173. Years shall be calculated on the basis that the first year shall start on the first of the next month after the date of this Memorandum Opinion and accompanying Order and subsequent years shall start on the anniversary of the first of the next month after the date of this Memorandum Opinion and accompanying Order.
174. The programmatic requirements set forth in paragraphs 150–64 above shall not terminate until the numerical requirements set forth in paragraphs 147–49 above are satisfied.
175. Since preschool children in the District of Columbia will continue to be denied a FAPE as long as defendants are not in compliance with the IDEA and District of Columbia law, the Court shall retain jurisdiction over this matter for purposes of enforcement of individual
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relief for a period of three years after the baseline year (i.e., the baseline year used to establish sustained compliance).
176. Pursuant to this Court’s September 2010 O rder, Order [201] 2, Sept. 22, 2010, within 30 da ys after the date of this Order, the parties shall meet and confer, and propose a procedure for addressing class members’ claims for individual relief. If the parties cannot come to an agreement, plaintiffs and/or defendants may submit a motion to the Court as to a procedure for addressing class members’ claims for individual relief. IV. CONCLUSION
For the reasons stated above, the Court finds defendants liable for violations of Sections 1412(a)(1)(A), 1412(a)(3)(A), 1412(a)(9), 1414(a)(1)(C), and 1414(b)(4) of the IDEA and corresponding provisions of District of Columbia law, and of Section 504 of the Rehabilitation Act. The Court further finds that plaintiffs are entitled to the above-specified declaratory and injunctive relief.
The Court acknowledges the reforms undertaken by DCPS in the Early Stages program in recent years, particularly under the able leadership of Dr. Nathaniel Beers. However, Dr. Beers has resigned from that position, and so the statutory violations persist at the same time as the perennial problem of turnover in the leadership of the District’s school system threatens to unwind whatever progress has been made. It is for this reason that a structural injunction is necessary. However, at the same time, it is the Court’s belief and sincere hope that improvements in the District’s system could lead, perhaps in the very near future, to compliance with the law, and so defendants should be given another chance to bring themselves into compliance before more intrusive Court involvement—e.g., the appointment of a special master or monitor—is determined to be necessary. Defendants’ persistent failure to live up to their statutory obligations, a failure that works a severe and lasting harm on one of society’s most
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vulnerable populations—disabled preschool children—is deeply troubling to this Court. S ince defendants have demonstrated their historic inability to keep their promises to the District’s disabled preschool children, this Court hereby makes it crystal clear that failing to abide by the Court’s Order will earn defendants far more significant court involvement and oversight than is ordered this day.
A separate Order consistent with these findings of fact and conclusions of law shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on November 16, 2011.
45

 
 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 OPINION (CLASS ACTION ISSUES)

This opinion addresses the question of whether the Supreme Court’s recent decision in

Wal-Mart Stores, Inc. v. Dukes, 131 S . Ct. 2541 (2011) requires modification of the class

certification order in this case. Before the Court are the following motions: defendants’ Motion

[214] to Decertify the Class, plaintiffs’ Motion [271] for Class Certification, and plaintiffs’

Motion [270] for Leave to File their Second Amended Complaint for Declaratory and Injunctive

Relief. Also before the Court are a battery of meta-motions for leave to file sur- (and even sur-

sur-) replies: plaintiffs’ Motion [259] for Leave to File a Sur-Reply to Defendants’ Reply in

Support of its Motion to Decertify the Class, defendants’ Motion [288] for Leave to File Sur-

Replies, and plaintiffs’ Motion [290] for Leave to File Sur-Sur-Reply Briefs in Support of

Plaintiffs’ Motion for Leave to File their Second Amended Complaint and Plaintiffs’ Motion for

Class Re-Certification. Having carefully considered the Motions, the Oppositions, the Replies,

the entire record in this case, and the applicable law, the Court will grant in part and deny in part

both defendants’ Motion [214] to Decertify the Class and plaintiffs’ Motion [271] for Class

Certification. The Court will also deny without prejudice plaintiffs’ Motion [270] for Leave to

File a s econd amended complaint, will grant plaintiffs’ Motion [259] for Leave to file a sur-

reply, will grant in part and deny in part defendants’ Motion [288] for Leave to File Sur-Replies,
and will deny plaintiffs’ Motion [290] for Leave to File Sur-Sur-Reply Briefs.
I. BACKGROUND The Court assumes familiarity with its prior opinions in this case, which set out the
factual and procedural background in detail. See, e.g., DL v. District of Columbia, 730 F. Supp.
2d 84, 87 –88 (D.D.C. 2010); DL v. District of Columbia, 237 F .R.D. 319, 3 20–21 (D.D.C.
2006). Since the instant motions concern class certification and the impact of the Wal-Mart case
upon this action, the Court will briefly set forth the facts germane to these issues.
The named plaintiffs—former preschool-aged children in the District with various
disabilities—filed suit in July 2005, alleging that defendants had engaged in a pattern and
practice of failing to provide special education and related services to them and other children, in
violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,
Section 504 of the Rehabilitation Act, 29 U .S.C. § 794( a), implementing regulations, the Due
Process Clause of the Fifth Amendment, and District of Columbia law. Am. Compl. [61] ¶1–2.
Plaintiffs sought declaratory and injunctive relief, reimbursement for funds expended by them to
obtain education services denied them by defendants’ legal violations, and “compensatory
education.” Id. at 33–35.
In August 2006, the Court certified a class action pursuant to Rules 23(a) and 23(b)(2) of
the Federal Rules of Civil Procedure. Order [58] 1, Aug. 25, 2006. The plaintiff class is defined
as:
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive.
2

Id. Toward the end of discovery, the parties filed cross-motions for summary judgment. In
August 2010, t he Court ruled upon t hose motions and concluded, among other things, that defendants “denied a [free appropriate public education (“FAPE”)] to a large number of children aged 3 to 5 years old, in violation of § 1412(a)(1)(A) of the IDEA.” Mem. Op. [198] 15, Aug. 10, 2010. However, this ruling applied only for the period 2007 and earlier, which were the only years for which data was available. Id. at 14.
In 2011, and about a month before a scheduled bench trial that would determine defendants’ remaining liability, defendants filed a Motion [214] to Decertify the Class, arguing that plaintiffs lacked standing and could no l onger satisfy the commonality or typicality requirements of Rule 23(a). Defs.’ Mot. Decertify [214] 4–6.
In April 2011, before ruling on defendants’ decertification motion, the Court held a twoday bench trial on the question of defendants’ liability for the period 2008 to the present. At the end of the trial, the Court ordered the parties to file proposed findings of fact and conclusions of law, reserving decision for a later date. Trial Tr. 90:12–16, Apr. 7, 2011.
However, before this Court ruled, an opinion of significant importance to federal classaction litigation came down from the United States Supreme Court. In Wal-Mart Stores, Inc. v. Dukes, the Court held, first, that the certification of a class of 1.5 million female employees was inconsistent with the commonality requirement of Rule 23(a)(2) of the Federal Rules of Civil Procedure. Wal-Mart, 131 S . Ct. at 2556–57. Plaintiffs, who alleged that Wal-Mart had discriminated against them on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e-1 et seq., had argued that commonality was present because all class members suffered discrimination at the hands of “a strong and uniform
3

‘corporate culture’ [that] permits bias against women to infect . . . t he discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.” Wal-Mart, 131 S. Ct. at 2547–48. To prove this proposition, plaintiffs relied upon statistics indicating pay and promotion disparities between men and women, 120 a necdotal reports of discrimination, and expert testimony on Wal-Mart’s “culture,” which concluded that Wal-Mart was “vulnerable” to gender discrimination. Id. at 2549.
The Supreme Court found that the plaintiffs’ proof failed to establish commonality. Id. at 2554. In reaching this conclusion, the Court held that commonality “requires the plaintiff to demonstrate that the class members ‘have suffered the same injury’ . . . .” Id. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Furthermore,
Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. T hat common contention, moreover, must be of such a nature that it 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. The Court also made clear that the type of claim involved must have an important bearing on the commonality analysis. It stated that, in Wal-Mart, “proof of commonality necessarily overlaps with [plaintiffs’] merits contention that Wal-Mart engages in a pattern or practice of discrimination. That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is ‘the reason for the particular employment decision.’” Id. at 2552 (quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984)). Moving from the individual level to a class action involving millions of individuals and millions of individual employment decisions, the Court stated that the Title VII plaintiffs had to present “some glue holding the alleged reasons for all those [employment] decisions together,” such as a biased testing procedure or “significant proof” that the employer “operated under a general policy of discrimination.” Id.
4

Concluding that the Wal-Mart plaintiffs’ were “worlds away” from such proof, id. at 2554, the Court determined that they had failed to “establish[] the existence of any common question.” Id. at 2556–57.
The Supreme Court’s second principal holding in Wal-Mart concerned whether the class had been properly certified under Federal Rule of Civil Procedure 23(b)(2), which permits certification where “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 . . . .” The Wal-Mart plaintiffs sought not only injunctive and declaratory relief under Rule 23(b)(2), but also an award of monetary damages in the form of back pay. Wal-Mart, 131 S . Ct. at 2547. The Court concluded that since Rule 23(b)(2) did not “authorize class certification when each class member would be entitled to an individualized award of monetary damages,” the class was improperly certified. Id. at 2557. Such claims properly belong in Rule 23(b)(3), not Rule 23(b)(2). Id. at 2558.
A couple of weeks after the Supreme Court issued the Wal-Mart opinion, defendants in this case filed a Supplemental Memorandum [265] of Law in further support of their motion to decertify the class. They argued that since plaintiffs had “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,” plaintiffs had essentially “amalgamat[ed] . . . a variety of provisions of a single statutory scheme,” an approach defendants contend Wal-Mart expressly rejected. Defs.’ Supp. Mem. [265] 2. Defendants also urged decertification of plaintiffs’ claims for reimbursement and compensatory education under Rule 23(b)(2), in line with Wal-Mart’s other holding. Id. at 3–5. In response, plaintiffs argued that Wal-Mart’s holding as to the commonality requirement did not require decertification, but announced their intention, should the Court conclude otherwise, to file a renewed motion to certify the class and a motion for leave
5

to amend the Complaint, this time reformulating the class to contain subclasses and seeking a “hybrid” recertification of the class under both Rules 23(b)(2) and (b)(3). P ls.’ Supp. Mem. [267] 2.
In August 2011, as advertised, plaintiffs filed a Motion [271] for Class Certification and a Motion [270] for Leave to File their Second Amended Complaint for Declaratory and Injunctive Relief. This new complaint retained the original class definition but divided the class into four subclasses. Pls.’ Mot. Leave [270], Ex. 1 [270-2] at ¶80. Plaintiffs argued that Rules 23(a)(1)– (4), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure were satisfied as to the class as a whole and each of the new subclasses. Id. ¶81. II. STANDARD OF REVIEW
Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure states that “[a]n order that grants or denies class certification may be altered or amended before final judgment.” See also Falcon, 457 U .S. at 160. This provision gives trial courts wide discretion to modify class certification orders in various ways to respond to subsequent developments in the case, in order to promote its fair and efficient adjudication. Eisen v. Carlisle, 417 U.S. 156, 184 –85 (1974). For example, the Federal Rules permit a trial court to divide a class into subclasses that are each treated as a class under Rule 23. Fed. R. Civ. P. 23(c)(5). In addition, courts can certify only a limited set of issues, or address certain issues on a classwide basis while managing others (such as damages and individual affirmative defenses) at the conclusion of the classwide trial. Walsh v. Ford Motor Co., 106 F.R.D. 378, 399 (D.D.C. 1985).
With regard to the familiar substantive requirements of class certification, Rule 23(a) permits certification only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class;
6

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately represent the interests of the class.
Fed. R. Civ. P. 23(a). A plaintiff seeking class certification must “affirmatively demonstrate his compliance with the Rule,” and certification is proper only if the trial court “is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart, 131 S. Ct. at 2551 (quotation marks and citations omitted).
In addition to the four prerequisites of Rule 23(a), a party seeking class certification must demonstrate that at least one of the provisions of Rule 23(b) is satisfied. Here, plaintiffs originally sought class certification pursuant to Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). III. ANALYSIS
A. Defendants’ Motion [214] to Decertify the Class 1. Standing
As an initial matter, since this case was filed, each of the named plaintiffs has grown older. C onsequently, as defendants point out, they are no l onger within the 3- to 5-year age group of the class and so, unlike the rest of the class, the named plaintiffs are not at risk of being denied a FAPE in the future. Defs.’ Reply [252] 2. Therefore, no injury threatens the named plaintiffs that an award of declaratory or injunctive relief would redress. According to defendants, this fact strips this Court of subject matter jurisdiction because the named plaintiffs can no longer satisfy the requirements of Article III standing to seek injunctive relief. Defs.’ Mot. Decertify [214] 6.
7

The Court concludes, contrary to defendants’ contentions, that the named plaintiffs continue to satisfy the requirements of Article III standing. To establish standing, a plaintiff must identify an injury in fact that is actual or imminent and traceable to the challenged action of the defendant, and show as well that it is likely, and not merely speculative, that a favorable decision would redress the plaintiff’s injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The standing doctrine applies to class actions as it does in other federal cases, and the named plaintiffs “must show that the threat of injury in a case . . . i s ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Sosna v. Iowa, 419 U.S. 393, 402–03 (1975) (citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974)). Furthermore, “if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.” O’Shea, 414 U.S. at 494.
However, the Supreme Court has also held that a “controversy may exist . . . between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.” Sosna, 419 U.S. at 402. This is because once a class is certified, it acquires “a l egal status separate from the interest asserted by [the named plaintiff].” Id. at 399. The named plaintiff may therefore continue to represent the interests of the class, so long as she continues to “fairly and adequately protect the interests of the class.” Id. at 404 (citing Fed. R. Civ. P. 23(a)(4)). Also, in line with Sosna, and specifically within the context of class actions brought against local school systems for violations of the IDEA, courts have held that the mere fact that the named plaintiffs’ claims have become moot by virtue of changes in circumstances easily foreseen at the outset does not strip a court of jurisdiction or otherwise call into question the named plaintiffs’ ability to serve as class representatives. See, e.g., M.A. ex rel. E.S. v. Newark Pub. Sch., No. 1-3389(SRC), 2009 WL 4799291, at *10 (D.N.J. Dec. 7, 2009).
8

Here, there is no que stion that the named plaintiffs had standing at the time they filed their complaint and at the time of certification. Defendants’ extensive discussion of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) is beside the point, as that case did not involve a class action. Furthermore, Lyons is distinguishable from situations where, as here and as in Sosna, the named plaintiffs had standing at the time of the complaint and at the time of certification. Here, it was obvious to everyone involved that this Court’s power to remedy the named plaintiffs’ injuries via injunctive or declaratory relief would dissipate during the time that would be required to resolve the controversy, further supporting the Court’s conclusion that Article III standing continues to be satisfied. See Sosna, 419 U.S. at 401–02.
Furthermore, the Court finds that the named plaintiffs will continue to adequately represent the interests of the class. The class representatives and their counsel have adequately and competently urged the interests of the class in each stage of this litigation, and defendants have failed to identify any interests of the class representatives that conflict with those of the class they represent.
2. Rule 23 In their motion, defendants challenge continued certification on the grounds that the class fails to satisfy the commonality and typicality requirements of Federal Rule of Civil Procedure 23(a). Defs.’ Mot. Decertify [214] 4. D efendants also challenge certification of plaintiffs’ claims for reimbursement and compensatory education under Rule 23(b)(2). Id. at 5. As to this latter issue, plaintiffs concede that Wal-Mart prohibits certification of claims for individualized monetary damages within a 23(b)(2) class, Pls.’ Mem. Supp. [271-2] 4. The Court therefore concludes that plaintiffs’ claims for reimbursement and compensatory education expenses must be decertified, and defendants’ motion will be granted as to that issue.
9

The Court will now proceed to address the question of whether the class continues to satisfy the commonality and typicality requirements of Rule 23.
a. Rule 23(a)(2): Commonality Defendants’ primary challenge to continued certification concerns Rule 23(a)(2), which requires, as an indispensable prerequisite to class certification, that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Even a single [common] question will do.” Wal-Mart, 131 S . Ct. at 2556 ( citations and internal quotation marks omitted). To establish commonality, the class representatives must demonstrate that the members of the class “have suffered the same injury.” Id. at 2551. Commonality requires that all of the class members’ claims “depend on a common contention” that is “of such a nature that it 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. Here, plaintiffs have amply demonstrated that there are questions of law and fact common to the class. All of the class members have suffered the same injury: denial of their statutory right to a free appropriate public education. Defendants argue that plaintiffs have impermissibly “bundled together multiple different allegations” of violations of various laws. Defs.’ Supp. Mem. [265] 1–2. However, these differing allegations only represent the differing ways in which defendants have caused class members’ common injury. For example, when defendants failed to put policies and procedures in place to ensure that “all” children with disabilities in the District were “identified, located, and evaluated,” 20 U .S.C. § 1412(a)(3)(A), those failures necessarily infringed upon such children’s FAPE right because a d isabled child whom defendants have not identified, located, or evaluated will not receive a FAPE. Likewise, a disabled child who does not receive a “smooth and effective transition” from Part C early
10

intervention to Part B preschool programs by their third birthday, id. § 1412(a)(9), will not receive her statutory entitlement to a FAPE.
This is not simply a matter of common sense, but is reflected in the statutory definition of a FAPE and its construction by the U.S. Supreme Court. The IDEA defines a “free appropriate public education” as “special education and related services . . . . ” Id. § 1401(9). T he term “related services” is in turn defined as:
. . . t ransportation, and such developmental, corrective, and other supportive services . . . a s may be required to assist a child with a disability to benefit from special education, and includes the early identification and as sessment of disabling conditions in children. Id. § 1401(26)(A) (emphasis added). The Supreme Court has given the term “related services” a broad construction, reading it to encompass services that enable disabled children to gain “meaningful access to education that Congress envisioned.” Cedar Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 74 (1999). The various state obligations within the IDEA, including the obligation to identify, locate, and evaluate all disabled children, 20 U.S.C. 1412(a)(3)(A), and to provide a “smooth and effective transition” from early intervention programs to preschool, id. § 1412(a)(9), are either reflected in the IDEA’s definition of a FAPE as including “identification” and “assessment” or, in the case of section 1412(a)(9)’s “transition” obligation, are “supportive services” that enable disabled children to gain meaningful access to special education. In sum, each one of the superficially different allegations in this case points back to a basic injury common to all members of the class: the denial of their right to a FAPE. Furthermore, unlike in Wal-Mart, this common question of whether class members received a FAPE is susceptible to classwide proof—e.g., statistical evidence indicating that, compared to similar jurisdictions, the District of Columbia is underserving its population of disabled children. See Disputed Facts Reply [183-1] 6.
11

Against this conclusion, defendants claim that Wal-Mart requires not only that the class members suffer the same injury, but that this common injury must stem from a common cause. Defs.’ Reply [268] 2–3. This, however, is not what Wal-Mart requires. T he Wal-Mart case involved a Title VII claim, the “crux” of which was “the reason for the particular employment decision.” Wal-Mart, 131 S. Ct. at 2552. I n this case, the “crux” is different: whether “all children” with disabilities in the District are getting a FAPE. 20 U .S.C. § 1412 (a)(1)(A). Defendants’ liability in this case does not hinge on their state of mind when they denied disabled children a FAPE,1 or on any particular cause. See Youngblood v. Family Dollar Stores, Inc., No. 09 Civ. 3176(RMB), 2011 WL 4597555, at *4 (S.D.N.Y. Oct. 4, 2011). Therefore, while defendants are correct that “classmembers’ denial of a FAPE occurred for a multitude of different reasons,” Defs.’ Reply [268] 3, the reasons for that common injury do not also have to be common to all members of the class.
Even assuming that defendants have read and applied Wal-Mart correctly, plaintiffs have presented significant proof or “glue” binding together the various reasons why individual class members were denied a FAPE—namely, “systemic failures” within defendants’ education system. A m. Compl. [61] 3. Plaintiffs presented credible evidence of defendants’ ineffective policies and practices, which persisted for years without leading to any significant increase in the number of preschool-age children receiving a FAPE. See, e.g., Dunst Direct Testimony, Pls.’ Ex. 1, p. 27; see also Pls.’ Supp. Mem. [267] 6–8. Indeed, this Court has found that at least for the period up to and including 2007, plaintiffs presented conclusive evidence that their injuries
1 Of plaintiffs’ claims, only the Rehabilitation Act claim requires them to show the “reason” why they were denied a FAPE. 29 U.S.C. §794(a) (Section 504 of the Rehabilitation Act), 34 C.F.R. § 104.33 (implementing regulations). However, while plaintiffs must show “something more than a mere failure to provide the ‘free and appropriate public education’ required by the IDEA,” Order [55] 3–4, Aug. 25, 3006, proof of that basic denial is common to plaintiffs’ Rehabilitation Act claim and to all of their other claims.
12

were the result of defendants’ “bad faith or gross mismanagement.” Mem. Op. [198] 23, Aug. 8, 2010. In sum, the “glue” found lacking in Wal-Mart is amply demonstrated here.
b. Rule 23(a)(3): Typicality Defendants also state in passing in their motion that the class should be decertified because plaintiffs’ cannot satisfy the typicality requirement of Rule 23(a)(3) of the Federal Rules of Civil Procedure. Defs.’ Mot. Decertify [214] 2. Rule 23(a)(3) states that a class action may be certified only if “the claims and defenses of the representative parties are typical of the claims or defenses of the class.” F ed. R. Civ. P. 23(a)(3). T ypicality is generally satisfied when the plaintiffs’ claims “arise from the same course of conduct, series of events, or legal theories of other class members.” In re XM Satellite Radio Holdings Secs. Litig., 237 F.R.D. 13, 18 (D.D.C. 2006). The requirement serves to ascertain whether the action is most efficiently maintained as a class and whether the interests of the named plaintiffs are sufficiently aligned with those of the class members that the latter’s interests will be fairly represented. In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 27 (D.D.C. 2001). The Court finds that the named plaintiffs’ claims, all relating to the common issue of defendants’ violation of their right to a FAPE under the IDEA, are typical of the claims of the absent class members. In addition, as discussed above in the context of the Court’s rejection of defendants’ standing argument, while defendants correctly note that the named plaintiffs’ claims for injunctive and declaratory relief are now moot, their interests are sufficient aligned with those of the class members to ensure that the latter are fairly represented in this litigation now and going forward. In sum, defendants’ motion to decertify the class will be granted insofar as it seeks decertification of plaintiffs’ claims for reimbursement and compensatory education within a Rule 23(b)(2) class, but is otherwise denied.
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B. Plaintiffs’ Motion [271] for Class Certification Plaintiffs, responding to defendants’ argument that Wal-Mart requires partial or total decertification of the class as currently defined, filed a motion in August 2011 to recertify the class in a different form. P ls.’ Mot. Class Certification [271]. I n their accompanying memorandum of law, plaintiffs sought to amend the initial certification to add subclasses, Pls.’ Mem. [217-2] 5, and also sought a “hybrid” certification of their claims for classwide declaratory and injunctive relief under Rule 23(b)(2) and their claims for reimbursement and compensatory education under Rule 23(b)(3). Id. at 33. As an initial matter, since the Court has concluded that Wal-Mart’s holding as to commonality does not require decertification of the class or modification of the Court’s initial certification order, the Court will deny as moot plaintiffs’ request to recertify the class using subclasses pursuant to Federal Rules of Civil Procedure 23(c)(1)(C) and (c)(5). The Court will also deny without prejudice plaintiffs’ Motion [270] for Leave to File their Second Amended Complaint, since that proposed complaint contains the subclasses that the Court has found unnecessary. Therefore, the class definition in this case remains unchanged and plaintiffs’ claims for declaratory and injunctive relief remain certified pursuant to Rule 23(b)(2), as specified in the Court’s original certification order. Regarding plaintiffs’ request to recertify their claims for reimbursement and compensatory education under Rule 23(b)(3), the Court concludes that recertifying those damages claims under Rule 23(b)(3) is appropriate in the light of the Supreme Court’s decision in Wal-Mart and in the interests of facilitating the fair and efficient conduct of this litigation. The D.C. Circuit has held that a district court has discretion to “adopt a ‘hybrid’ approach [to class certification], certifying a (b)(2) class as to the claims for declaratory and injunctive relief, and a (b)(3) class as to the claims for monetary relief . . . .” Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997).
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Rule 23(b)(3) states that, if all of the requirements of Rule 23(a) are satisfied, a court may
certify a class action if it finds that:
the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matter pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3).
The Court finds that plaintiffs, in addition to the requirements of Rule 23(a), have
satisfied both the “predominance” and “superiority” requirements of Rule 23(b)(3). The
common question of whether defendants’ education system denied large numbers of disabled
children their statutory right to a FAPE predominates over any questions affecting only
individual class members, such as the extent of the individual monetary injuries flowing from
defendants’ violation of the law. Specifically in the context of “hybrid” Rule 23(b)(2) and (b)(3)
class actions involving the denial of special education services, courts have found that the
varying impacts of a school system’s failures on individual class members does not prevent the
common questions regarding defendants’ inadequate policies and practices to predominate. D.S.
ex rel. S.S. v. New York City Dep’t of Educ., 255 F.R.D. 59, 73 (E.D.N.Y. 2008).
As to Rule 23(b)(3)’s “superiority” requirement, the Court finds that a class action is
superior to other methods for fairly and adequately adjudicating the controversy. Applying the
factors specified in Rule 23(b)(3)(A)–(D), the Court finds that the individual class members in
15

this case, absent class certification, would almost certainly be unable to devote the resources necessary to vindicate their rights and secure an appropriate remedy, making a class action superior to other available means. Also, this case has grown quite long in the tooth, having been filed in 2005 and having proceeded through discovery, summary judgment, and even trial. Therefore, the extent of the litigation already begun on behalf of the class further supports this Court’s conclusion that the superiority requirement is satisfied. Finally, the benefits of concentrating the litigation of the class members’ claims in this forum far outweigh any difficulties accompanying the management of a class action. In sum, plaintiffs have satisfied the predominance and superiority requirements of Rule 23(b)(3) and a hybrid class action will be certified. As required by Rule 23(c)(2)(B), class members will be afforded due process protections in the form of “the best notice that is practicable under the circumstances,” as well as opt-out rights. Fed. R. Civ. P. 23(c)(2)(B). IV. CONCLUSION
For the reasons stated above, the Court will grant in part and deny in part defendants’ Motion [214] to Decertify the Class and grant in part and deny in part plaintiffs’ Motion [271] for Class Certification. The Court will also deny without prejudice plaintiffs’ Motion [270] for Leave to File their Second Amended Complaint for Declaratory and Injunctive Relief and will grant plaintiffs’ Motion [259] for Leave to File a Sur-Reply to Defendants’ Reply in Support of its Motion to Decertify the Class. Defendants’ Motion [288] for Leave to File Sur-Replies will be granted as to its attached Sur-Reply in Further Opposition to Plaintiffs’ Motion for Class ReCertification, but otherwise denied as moot. Plaintiffs’ Motion [290] for Leave to File Sur-SurReply Briefs will be denied.
A separate Order consistent with this Memorandum Opinion shall issue this date. Signed by Royce C. Lamberth, Chief Judge, on November 16, 2011.
16

 
 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, D ec. 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 SurReply 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, A pr. 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).
2

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). J urisdiction 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 . . . a n 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.” F ed. 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 w here 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 s ignificant 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. S pecifically,
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.” D efs.’ Reply [317] 2. T he 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 pe rcent per year. P ls.’ Sur-Reply [321-1] 6, A pr. 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 pe nding 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 pe rcent each subsequent year.
(2) Paragraph B.10 will be modified to state: Defendants shall assign each family served by Early Stages a s ingle 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 di sruption 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, . . . a nd 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.” P ls.’ 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 a t 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. S pecifically, 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.
8

 
 Case 1:05-cv-01437-RCL Document 299 Filed 11/16/11 Page 1 of 2

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.

)

________________________________________ )

ORDER

Before the Court are defendants’ Motion [221] for Relief from Judgment and for

Judgment as a Matter of Law and plaintiffs’ Motion [261] for Leave to File a Sur-Reply Brief to

Defendant’s Reply in Support of Motion for Relief from Judgment and for Judgment as a Matter

of Law. Defendants’ Motion [221] for Relief from Judgment will be denied and plaintiffs’

Motion [261] for Leave to file a sur-reply will be granted.

Prior to the April 6–7, 2011 trial of this matter, defendants filed this motion, seeking

relief from the Court’s August 10, 2010, Order [197] granting partial summary judgment mostly

in favor of plaintiffs and seeking judgment as a matter of law on those claims not resolved by the

Court’s opinion in DL v. District of Columbia, 730 F . Supp. 2d 84 (D.D.C. 2010). As to

defendants’ request for relief from the Court’s August, 10, 2010, Order [197], that request will

be denied as all of defendants’ legal arguments have been rejected by this Court in prior opinions

in this case. See, e.g., Mem. Op. [53] 11–12, Aug. 25, 2006; Mem. Op. [55] 4, Aug. 25, 2006;

Mem. Op. [198] 5–11, 13–21, Aug. 10, 2010. Furthermore, defendants have presented no

information or arguments showing them to be entitled to relief from judgment under Federal

Case 1:05-cv-01437-RCL Document 299 Filed 11/16/11 Page 2 of 2 Rule of Civil Procedure 60(b) or to reconsideration in their favor under Federal Rule of Civil Procedure 54(b).
Defendants’ motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) will be denied for the reasons stated in the Memorandum Opinion & Findings of Fact and Conclusions of Law filed this date and because that motion is based upon the arguments that this Court has rejected in prior opinions. Accordingly, it is hereby
ORDERED that defendants’ Motion [221] for Relief from Judgment and for Judgment as a Matter of Law is DENIED; and it is further
ORDERED that plaintiffs’ Motion [261] for Leave to File a Sur-Reply Brief to Defendant’s Reply in Support of Motion for Relief from Judgment and for Judgment as a Matter of Law is GRANTED.
SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, on November 16, 2011.
2

 
 Case 1:05-cv-01437-RCL Document 51 Filed 08/23/06 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

D.L., et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

)

)

)

)

)

)

Civil Action No. 05-1437 (RCL)

)

)

)

)

)

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY PLAINTIFFS

Plaintiffs’ Opposition (“Pl. Opp.”) to our Motion to Compel requires only a brief

response. We have the following comments on their submission.

Taken at face value, plaintiffs’ repeated assertions that they have no

“unprivileged” documents relating to unnamed class members raise more questions than

they answer. See Pl. Opp. at 2, 3, 6, 7. First, plaintiffs’ assertions cast even more doubt

about the maintainability of a class action in this case. Plaintiffs state that there are more

than 600 members of their putative class. Pl. Opp. at 9. But they now claim that they

have not a single page of unprivileged documents except those relating to the six named

plaintiffs and the three plaintiffs they seek to add by motion to amend. They

acknowledge a duty to produce documents relating to the latter three, although only if

their motion for leave to amend is granted. See Pl. Opp. at 4 n. 3. We ask: what is the

basis for asserting a class action if plaintiffs have supporting documentation only for the

nine named and would-be named plaintiffs and none as to the other 600 members of the

putative class? This claim, if correct, impacts not only on plaintiffs’ showing on the

Case 1:05-cv-01437-RCL Document 51 Filed 08/23/06 Page 2 of 5
element of numerosity under Federal Rule of Civil Procedure 23, but also on the threshold bedrock issue of whether there is a class action here at all or merely a handful of individual actions joined for convenience in one suit. It is a plausible inference that if no such documents exist, neither do the putative unidentified class members, or, at least, that plaintiffs have pleaded a class action and sought class certification without a sufficient basis.
Second, plaintiffs’ assertions of no unprivileged responsive documents appear to rest on a misunderstanding of our documentary requests. They seem to construe our requests as aimed directly at unnamed class members. Most of the cases they cite involved efforts to obtain documentary discovery or answers to interrogatories directly from unnamed class members. See cases cited in Pl. Opp. at 8 n. 5, 11 n. 7.
But that is not what we seek by our Rule 34 requests and our present motion to compel. We seek production of documents in the possession, custody, or control of plaintiffs relating to unnamed class members, not documents from unnamed class members. As we showed in our papers supporting our motion to compel, seeking such discovery from the parties relating to unnamed class members is a first step, and may or may not be followed by requests for discovery directly from unnamed class members. (We note that many of their cases not only involved discovery sought directly from unnamed class members, but allowed such discovery. See cases cited at p. 8 n. 5 of Pl. Opp.).
The distinction is made perfectly clear in one of the cases on which plaintiffs rely, Wainright v. Kraftco Corp., 54 F.R.D. 532 (N.D. Ga. 1972), cited at p. 8 n. 5 of Pl. Opp. The Court there held that defendants were entitled to discovery of “all information” that
2

Case 1:05-cv-01437-RCL Document 51 Filed 08/23/06 Page 3 of 5
plaintiffs had collected from unnamed class members, including the names and addresses of all class members with whom plaintiffs had conferred. 54 F.R.D. at 535-536. It would be time for the Court to rule on our entitlement to discovery directly from absent class members if and when we asked for it, which we have not done. In the meantime, we are entitled to discovery from the plaintiffs as to the matters covered by the requests to which they have objected.
Third, plaintiffs’ assertions of no unprivileged responsive documents also appear to rest on a misconception of the law. They contend without qualification that defendants “cannot as a matter of law” obtain discovery from any of plaintiffs’ attorneys about any class members who are not named plaintiffs. Pl. Opp. at 6. That is simply an erroneous statement of the applicable law.
Plaintiffs have construed their discovery obligations too narrowly. If plaintiffs, including their attorneys, have possession, custody or control of documents containing “relevant factual information,” from wherever or from whomever derived, they are required to produce them. Plaintiffs’ own case, Penk v. Oregon State Board of Higher Education, 99 F.R.D. 511 (D. Ore. 1983), so holds. The Court there stated, “[t]he Federal Rules of Civil Procedure contemplate that all relevant factual information in the hands of parties to a suit or in the hands of their counsel is discoverable by the adverse party.” 99 F.R.D. at 517 (Emphasis supplied); see Alexander v. FBI, 194 F.R.D. 299, 301 (D.D.C. 2000) (Lamberth, J.) (“[i]t is well established that ‘control’, which is defined not as possession, but as the legal right to obtain documents on demand, is the test as to whether the production is required”).
3

Case 1:05-cv-01437-RCL Document 51 Filed 08/23/06 Page 4 of 5
It is elementary that documents containing such information do not receive the protection of the attorney-client or any other privilege simply because they are conveyed to an attorney. 99 F.R.D. at 516. Otherwise, it would be a simple matter to thwart the purpose and effect of the discovery rules by turning over discoverable documents to a lawyer and then claiming privilege. Such is not the law. 99 F.R.D. at 514; see 7 Moore, Federal Practice (3d edit.) Section 34.14(2)(c) at 34-69 to 70 (“[d]ocuments in the possession of a party’s attorney may be considered to be within the control of the party within the meaning of Rule 34”).
Accordingly, since plaintiffs may have either misconstrued the substance of what we are requesting, or may have misunderstood their legal obligations to produce documents, or both, we urge that they be required to respond to our discovery requests on an informed and correct understanding of the requests and the law. If, after such reexamination, they still assert that they have no unprivileged responsive documents, so be it. In the meantime, an order requiring them to reevaluate their objections and comply with their discovery obligations by way of a supplemental response cannot be harmful or prejudicial to them. See Alexander v. FBI, supra, 194 F.R.D. at 302, 304-305.
Fourth, plaintiffs’ suggestion that defendants filed their motion to compel as a diversion from plaintiffs’ own motion to compel is unworthy. It is surely not a diversionary tactic to put both motions before the Court at the same time, so that the Court may have a full understanding of the outstanding discovery issues and how they relate to each other. We understand plaintiffs’ discomfort at having the inconsistency in their positions on the two motions pointed out, but that is scarcely a reason for denial of
4

Case 1:05-cv-01437-RCL Document 51 Filed 08/23/06 Page 5 of 5

our motion. Rather, it is an additional reason to grant our motion to compel, especially if

the Court grants the plaintiffs’ motion.

Respectfully submitted,

ROBERT J. SPAGNOLETTI Attorney General of the District of Columbia

GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division

/s/ Edward P. Taptich EDWARD P. TAPTICH [#012914] Chief, Equity Section 2

/s/ Daniel A. Rezneck DANIEL A. REZNECK [#31625] Assistant Attorney General 441 Fourth Street, N.W., Sixth Floor South Washington, D.C. 20001 (202) 724-5691

/s/ Eden I. Miller EDEN I. MILLER [#483802] Assistant Attorney General 441 Fourth Street, N.W., Sixth Floor South Washington, D.C. 20001 (202) 724-6614 (202) 727-3625 (fax) Eden.Miller@dc.gov

August 23, 2006

ATTORNEYS FOR DEFENDANTS

5

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DL, et al., on behalf of themselves and others similarly situated,
Plaintiffs, v. THE DISTRICT OF COLUMBIA, et al.,
Defendants.

) ) ) ) ) ) ) Civil No. 05–1437 (RCL) ) ) ) ) )

ORDER

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]. For the reasons explained in the accompanying Memorandum Opinion issued this date, it

is hereby

ORDERED that the plaintiffs’ Motion [358] is GRANTED IN PART and DENIED IN

PART. Specifically, the four subclasses detailed in the Memorandum Opinion are hereby

certified pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), while the plaintiffs’

motion to reinstate liability and relief are DENIED. The Court shall commence new proceedings

to make findings of fact regarding each of the subclass claims post-April 2011, redetermine

liability, and if necessary, order the appropriate relief. Accordingly, it is further

ORDERED that the parties shall meet and confer, and on December 9, 2013, s hall file a

joint report including a proposed discovery and scheduling order; and it is further

ORDERED that a status conference is scheduled for December 18, 2013, at 10 am; and it is further
ORDERED that the plaintiffs’ Motion to Amend the First Amended Complaint [359] is GRANTED; and it is further
ORDERED that the defendants’ Motion to Dismiss [365] is DENIED. IT IS SO ORDERED. Signed by Royce C. Lamberth, United States District Judge, on November 8, 2013.

 
 Case 1:05-cv-01437-RCL Document 398 Filed 11/08/13 Page 1 of 37

Pl.

Ex.

UNITED STATES DISTRICT COURT

1

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

DL, XY, HW, TL, JB, FD, TF,

)

by their parents and next friends:

)

)

Tameka Ford

)

2412 Elvans Road, S.E., Apt. 403

)

Washington, DC 20020,

)

)

Tammika and BryanYoung

)

428 Randolph Street, N.W.

)

Washington, DC 20011,

)

)

Kerianne Piester and Ronald Wisor

)

6200 29th Street, N.W.

)

Washington, DC 20015,

)

)

Arlette Mankemi and Timothy Lantry

)

1305 Maryland Avenue, N.E.

)

Washington, DC 20002,

)

)

Leah Bland

)

2413 Alabama Avenue, S.E.

)

Washington, DC 20020,

)

)

Frederick and Monica Davy

)

6933 9th Street N.W.

)

Washington, DC 20012,

)

)

Angelique Moore

)

2436 Wagner Street, S.E., Apartment B

)

Washington, DC 20020,

)

)

on their own behalf and on

)

behalf of a class of similarly situated individuals, )

)

Plaintiffs,

)

)

v.

)

)

1

Case 1:05-cv-01437-RCL Document 398 Filed 11/08/13 Page 2 of 37

THE DISTRICT OF COLUMBIA,

)

a municipal corporation

)

1350 Pennsylvania Ave, N.W., Suite #419

)

Washington, DC 20004,

)

)

and

)

)

CLIFFORD B. JANEY in his

)

official capacity as Superintendent

)

of District of Columbia Public Schools

)

825 North Capitol Street, N.E.,

)

9th Floor

)

Washington, DC 20002,

)

)

Defendants.

)

__________________________________________)

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. Plaintiffs, on behalf of themselves and others similarly situated, bring this action under 42

U.S.C. 1983 for declaratory, injunctive, and compensatory relief to challenge defendants’ policy,

pattern, and practice of failing to identify, locate, evaluate, and offer special education and related

services to children with disabilities in the District of Columbia who are between the ages of three and

five years old, inclusive (hereinafter “preschool children”). Def endants’ actions violate the

Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. 1400, et seq., Section 504 of the

Rehabilitation Act, 29 U.S.C. 794(a), implementing regulations, the Due Process Clause of the Fifth

Amendment, and District of Columbia law.

2. Nam ed plaintiffs are cur rent or former preschool children with sensory, emotional,

physical, cognitive, developmental, or language disabilities who tried to obtain special education and

related services from the District of Columbia Public Schools (“DCPS”) or wanted to obtain these

2

Case 1:05-cv-01437-RCL Document 398 Filed 11/08/13 Page 3 of 37
services as preschool children, but have been denied, delayed, or otherwise deprived of access to these services because of defendants’ systemic failures to comply with federal and District of Columbia law.
3. The IDEA, the Rehabilitation Act, federal implementing regulations, and District of Columbia law require that the District of Columbia offer a “free appropriate public education” (“FAPE”) to children identified as disabled, including to preschool children. To that end, these laws require that the District of Columbia take concrete steps to identify, locate, evaluate, and offer special education and related services to all preschool children in the District of Columbia with disabilities who need these services. Known as the “Child Find” duty, this mandate includes ensuring that disabled infants and toddlers who received special education services under Part C of the IDEA continue to receive them after their third birthday under Part B of the IDEA. Defendants have a policy, pattern, and practice of failing to comply with their Child Find duty. Defendants’ failures are numerous, knowing, pervasive, and systemic. Defendants’ actions demonstrate gross misjudgment and have caused substantial harm to hundreds of young children in the District of Columbia by jeopardizing their educational opportunities and by denying them a right to a free appropriate public education.
JURISDICTION AND VENUE 4. This action is brought under 42 U.S.C. 1983 to enforce the IDEA, 20 U.S.C. 1400, et seq., and the Due Process Clause of the Fifth Amendment, and under Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a). The Court has jurisdiction under 28 U.S.C. 1331, 1343, and 1367. Venue is proper under 28 U.S.C. 1391.
PARTIES
3

Case 1:05-cv-01437-RCL Document 398 Filed 11/08/13 Page 4 of 37
Plaintiffs DL
5. DL1/ is a five-year-old boy who was born in 2001. He resides in Washington, D.C. He sues by his mother and next friend, Tameka Ford.
6. DL suffers from a qualifying disability under the IDEA. He has documented developmental delays and has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). He exhibits significant behavioral and emotional problems, as well as speech and language delays. He has had a history of aggressive behavior, which includes hitting, bitting, and fighting with his teachers and with other children. In the past, he has punched himself in the face repeatedly until he falls down exhausted, often lying still for long periods of time after these incidents.
7. Defendants have known since at least June 2004 that DL has had a qualifying disability and nevertheless failed for over a year to take steps to comply with their Child Find and FAPE requirements.
8. When DL was three years old, he began attending Bright Beginnings, a daycare center for transitional and homeless children in the District of Columbia. Soon thereafter, he was evaluated at Georgetown Medical Center for developmental delays. The evaluations confirmed that DL needed speech, language, occupational and cognitive therapies.
9. I n June 2004, Bright Beginnings convened a m eeting, known as an Individualized Education Program (“IEP”) meeting. The purpose of the meeting was to discuss the evaluations and to determine what type of special education services DL needed. Bright Beginnings sent a formal request to DCPS to attend the IEP meeting. DCPS refused to attend. During the meeting, the
1/ Pursuant to Local Rule 5.4(f)(2), minors are identified by their initials in this Complaint. 4

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participants agreed that DL should receive speech, language, occupational therapy and counseling services.
10. In December 2004, DL was removed from Bright Beginnings. DL’s mother, Tameka Ford, attempted to re-enroll DL in Bright Beginnings, but the center would not accept him because of his behavioral problems.
11. In February 2005, DL’s mother and social worker registered DL with DCPS at the Central Assessment Referral and Evaluations (“CARE”) Center of the DCPS. They requested special education and related services for DL. They gave DCPS prior evaluations of DL and signed papers consenting to have DL evaluated by DCPS. DCPS did not act on this request for special education and related services.
12. In the spring of 2005, an advocate with For Love of Children (“FLOC”), a non-profit organization that provides services to at risk families in the District of Columbia, contacted DCPS on numerous occasions to urge DCPS to act on Ms. Ford’s request for special education services. DCPS did not respond to these requests.
13. In the spring of 2005, Ms. Ford enrolled DL in two private preschools while waiting for DCPS to identify, locate, evaluate, and offer DL special education and related services. Bo th preschools expelled DL for behavioral problems.
14. In June 2005, after receiving no response from DCPS, DL’s guardian ad litem requested a due process hearing to challenge DCPS’s failure to evaluate or offer special education services to DL.
15. On August 24, 2005, and as a r esult of the scheduled due pr ocess hearing, DCPS convened an eligibility meeting for DL. DCPS determined that DL qualified for special education and
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related services as a child with developmental delays. DCPS drafted an IEP, which is an educational plan that set forth the learning goals and educational services that were to be provided to DL. During the meeting and when drafting the IEP, DCPS refused to consider that DL had been diagnosed with ADHD by his doctor and that he exhibited significant socio-emotional and behavior problems. DCPS placed DL at Van Ness Elementary School, which was not an appropriate placement given his socioemotional and behavior problems.
16. Van Ness Elementary School did not have sufficient staff to comply with DL’s IEP or to accommodate his disability. DL’s behavior became increasingly aggressive, and he was sent home on numerous occasions.
17. Due process hearings were held in DL’s case in September and October 2005 regarding defendants’ Child Find failures, including the failure and delays in identification, location, evaluation, eligibility, and placement of DL. The Hearing Officer issued a decision in December 2005 in favor of DL and his mother, finding that DCPS had violated FAPE and Child Find for DL. The Hearing Officer ordered DCPS to provide compensatory education for DL.
18. I n December 2005, notwithstanding his IEP and placement at Van Ness Elementary School, Van Ness initiated suspension proceedings against DL because of his behavior problems. With the intervention of counsel, DL was transferred to Moten Elementary School as a temporary, interim placement in lieu of suspension. To date, DL remains at Moten Elementary School on an interim basis and is receiving some services. He is awaiting development of a current and correct IEP and Notice of Placement to reflect his disabilities. DL has exhausted his administrative remedies.
XY 19. XY is a four-year-old boy who was born in 2002. He resides with his mother, Tammika
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Thompson-Young, and his father, Bryan Young, in Washington, D.C. 20. XY is disabled. XY suffers from Autism Spectrum Disorder, which was diagnosed by
Children’s National Medical Center Hospital (“CNMC”) in May 2005. XY is non-verbal, very active, not toilet trained, suffers from frequent tantrums, and sleeps for only short periods of time, even at night. I n the past, he has hit his face and head against walls and against other objects. He i s asthmatic and uses a Nebulizer daily.
21. Defendants have known that XY was disabled and in need of special education and related services since at least 2004. Nevertheless, defendants have failed repeatedly to comply with the Child Find and FAPE requirements for XY.
22. In January 2004, XY received a multi-disciplinary eligibility evaluation from CNMC, which concluded that XY suffered from numerous development delays. Shortly thereafter, and when he was two years old, XY was found eligible for the DC Early Intervention Program (“DCEIP”), which is administered by the District of Columbia Department of Human Services (“DHS”) and authorized by Part C of the IDEA. Part C of the IDEA authorizes special education services for disabled infants and toddlers until they reach their third birthday. XY received Part C IDEA services, including speech therapy and special instruction, for eight months through the DCEIP.
23. In October 2004, when XY was two years and eight months old, DCEIP held a transition meeting and asked DCPS representatives to attend. The purpose of the meeting was to ensure that XY was transitioned from DCEIP (i.e., Part C IDEA services) to DCPS (i.e., Part B IDEA services) by his third birthday. DCEIP terminates Part C IDEA special education services once a child reaches his or her third birthday. A DCPS representative attended the transition meeting and was apprised of XY’s disability and need for a continuation of services following his third birthday. Nevertheless,
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DCPS did not take any steps after this meeting to identify, locate, evaluate, or offer XY special education services.
24. I n February 2005, XY t urned three years old, and DCEIP terminated his special education services. Because DCPS had failed to take any steps to identify, locate, evaluate, or offer XY special education or related services, DCPS did not continue these services after DCEIP terminated XY’s services on his third birthday. XY’s parents visited the CARE Center of DCPS on numerous occasions in order to request that DCPS take steps to identify, evaluate, and offer him services. XY’s parents visited the CARE Center in June, August, and September 2005. DCPS failed to respond to any of these requests until XY’s counsel requested a due process hearing in November 2005 to challenge defendants’ Child Find failures.
25. In February and March 2006, two due process hearings were held for XY. The hearing officer determined orally during the hearings that defendants had violated, inter alia, the Child Find and FAPE provisions by failing to identify, locate, evaluate, and offer XY special education services within the time frames mandated by federal and District of Columbia law. The judge issued a written decision that ordered DCPS immediately to evaluate XY, develop an appropriate IEP, and offer an appropriate placement. The judge also ordered immediate relief, including compensatory education.
26. Becaus e DCPS s ubsequently had failed to develop an appropriate IEP or offer an appropriate placement, the parties appeared for a third due process hearing on July 17, 2006. The Hearing Officer ruled in favor of the parents during the hearing. DCPS has not yet complied with this decision. XY and his parents have exhausted their administrative remedies.
HW 27. HW is a six-year-old girl. She resides with her mother, Kerianne Piester, and father,
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Ronald Wisor, in Washington, D.C. 28. HW is disabled. Sh e has speech and language delays which impair her ability to
participate in the classroom and communicate with others. Speechand language testing revealed that she presents significant receptive, expressive, and articulation delays. She continues to present these delays.
29. DCPS has known about HW’s disability since at least January 2005, when HW’s mother, Ms. Piester, visited the CARE Center of DCPS t o request speech language, occupational, and cognitive evaluations for HW. Since January 2005, Ms. Piester has contacted the CARE Center on numerous occasions to request that DCPS comply with the Child Find requirements and identify, locate, evaluate, and offer HW special education and related services. DCPS co mpleted referral forms for HW in March 2005, but since then, has failed to screen HW, evaluate her, determine her eligibility, convene an IEP meeting, or offer an appropriate educational placement.
30. HW’s parents have waited one and a half years for DCPS to comply with its Child Find requirements. In the interim, HW’s parents have mortgaged their house to pay privately for the special education and related services she requires. Today, HW’s parents are still waiting for DCPS to comply with the Child Find requirements and to evaluate HW, determine her eligibility, develop an IEP, and offer her an appropriate placement.
TL 31. TL is a three year-old boy who resides with his mother, Arlette Mankemi, and his father, Timothy Lantry, in Washington, D.C. 32. TL is disabled. TL was diagnosed in 2005 with a disorder of the vestibular system, including an underlying sensory integration and listening disorder, motor apraxia, and a pr ofile
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consistent with Autism Spectrum Disorder. He also suffers from communication deficits characterized by severe delays in the area of expressive and receptive language as well as delays in the area of pragmatics and social interaction skills.
33. Defendants have known that TL was disabled since at least June 2005, when TL began receiving special education services through DCEIP, including occupational therapy and specialized instruction. Nevertheless, DCPS has failed to comply with the Child Find and FAPE requirements as to TL.
34. In November 2005, a transition meeting was held to discuss transitioning TL to DCPS following DCEIP’s termination of services on TL’s third birthday. DCPS representatives attended the transition meeting. DCPS learned about TL’s disabilities and his need for continuation of services during that meeting.
35. After the November 2005 meeting, TL’s parents attempted on numerous occasions to contact the CARE Center of DCPS to ensure that TL would receive special education services once DCEIP terminated those services on TL’s third birthday.
36. DCEIP terminated TL’s services in April 2006. DCPS did not transition TL by the time DCEIP terminated him.
37. In April 2006, the CARE Center held an initial meeting with TL’s parents in which TL’s parents requested an evaluation, an eligibility determination, and an appropriate educational placement for TL.
38. OnJuly 27, 2006, and more than eight months after TL’s transition meeting, DCPS found TL eligible for special education services. DCPS wrote an IEP for TL but offered a program that is overly restrictive. T L and his parents are still waiting for an appropriate IEP and educational
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placement. JB
39. JB is a six-year-old boy who was born in 1999. He resides with his mother, Leah Bland, and other family members in Washington, D.C. He sues by his mother and next friend, Leah Bland.
40. JB was diagnosed with autism in January 2004 and has a disability that would make him eligible for special education and related services.
41. Defendants have known since at least March 2004 that JB has a qualifying disability. 42. Nev ertheless, defendants failed to identify, locate and evaluate him in a t imely and adequate manner and failed to offer him any special education services during the 2004-2005 school year. 43. From 2002 to 2004, Ms. Bland tried to place JB in several preschool programs in the District of Columbia. JB exhibited behavioral problems almost immediately. He t hrew frequent tantrums and scratched and hit himself. He began drooling and refused to eat. Ms. Bland was forced to withdraw him from the preschools as a result of his behavioral problems. 44. From 2002 to 2004, when Ms. Bland was attempting to place him in preschool, she was unaware that special education and related services were available from DCPS. Defendants failed to inform or notify her or the private preschools that JB attended of the availability of special education and related services. Ms. Bland eventually learned through a private educational facility that DCPS could provide special education and related services to preschool children. 45. In March 2004, after learning that DCPS could provide services to preschool children and after JB was diagnosed with autism by a psychiatrist, Ms. Bland registered him at Ann Beers Elementary School, which is JB’s neighborhood school. She requested special education services for
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JB. 46. In the summer of 2004, DCPS conducted a speech evaluation of JB. DCPS failed to
perform other critical evaluations to assess JB’s behavioral problems, even though Ms. Bland had requested these evaluations and had signed consent forms enabling DCPS to obtain information from JB’s psychiatrist and from his former preschools.
47. In November 2004, DCPS told Ms. Bland that it would conduct a psycho-educational evaluation. DCPS did not conduct the evaluation.
48. I n December 2004, frustrated by DCPS’s failure to schedule or perform a ps ychoeducational evaluation, JB’s family arranged for a private psychiatric evaluation at the Center for Autism Spectrum Disorders of Children’s National Medical Center. The evaluation made extensive recommendations for intervention, including educational intervention.
49. In March 2005, DCPS performed an occupational therapy evaluation for JB. 50. In June 2005, 15 months after JB’s mother requested special education for JB, defendants convened a meeting with JB’s family. During the meeting, DCPS representatives concluded that JB should be receiving special education and related services as a child with autism. Later that month, DCPS drafted an IEP. The IEP included a full-time special education program with small classes, two hours of speech language therapy weekly, and three 30-minute sessions of occupational therapy weekly. 51. DCPS did not timely implement JB’s IEP or offer an educational placement for the 20042005 school year until August 2005, 17 months after JB’s mother requested these services. JB attended a private childcare at his mother’s expense during this time. 52. In August 2005, DCPS offered JB an educational placement for the 2005-2006 school
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year at Hearst Elementary School. JB did not receive occupational therapy services for a period of time while he was at Hearst Elementary School.
53. In May 2006, DCPS offered JB’s parents a compensatory education proposal for the 2004-2005 school year; the parties are in discussions regarding this proposal.
FD 54. FD is a three-year-old boy who was born in 2001. He resides with his parents and sisters in Washington, D.C. He sues by his parents and next friends, Monica and Frederick Davy. 55. F D has a disability that qualifies him for services under the IDEA. FD was born prematurely at 29 weeks. He wasdiagnosed with End Stage Renal Disease, which resulted in a renal transplant on March 31, 2004. As a result of his premature birth, FD suffers from a number of medical conditions, including Prune Belly Syndrome (a lack of muscle tone in the abdominal area), spastic diplegia, and developmental delay. He has also had a vesicostomy and is not toilet trained. 56. FD exhibits significant delays in gross and fine motor skills and visual motor skills. His visual-perceptual skills, problem-solving skills, and communication skills are delayed. FD uses a posterior walker at all times and wears ankle-foot orthoses. He also requires a special chair to support his torso for seated work. 57. DCPS delayed for months in offering special education and related services to FD. When FD was two years and eight months, his mother registered him as a non-attending student at his neighborhood school and sought special education services for him from DCPS. 58. In August 2004, FD was cleared medically to attend a group- or school- based program and began attending the Easter Seals Child Care program. Prior to that time, he had received limited services at home through the Early Intervention Program. DCPS staff, who observed FD while he
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was at the Easter Seals Child Care program, advised his mother that the program was not meeting all of his needs and that he needed higher functioning peers.
59. In August 2004, DCPS concluded that FD was eligible for special education. DCPS drafted an IEP that required ten hours of specialized instruction and one hour each of occupational, physical, and speech language therapy on a weekly basis. Many of the necessary accommodations for FD were not integrated into the initial IEP, but were added after the parents engaged counsel and after DCPS agreed to revise the IEP. The revised IEP includes a nursing care plan, the services of a dedicated aide, an adaptive chair, and services in an accessible building to accommodate his walker. Services were to begin on September 1, 2004.
60. In December 2004, frustrated by DCPS’s failure to provide the services set forth in the IEP and failure to offer an educational placement, FD’s parents requested a due process hearing.
61. In March 2005, the parties entered into a settlement agreement whereby DCPS agreed to provide a placement that included, inter alia, a classroom with no more than 15 students, a teacher and an instructional assistant, and a nurse in the building full-time. The settlement expressly excluded coverage of the parents’ claims for compensatory education and for violations of the Child Find provisions of the IDEA.
62. FD began receiving services in March 2005, seven months after he was found eligible to receive them. However, at that time, DCPS failed to offer compensatory education appropriate for the months during which time defendants failed to provide FD with appropriate classroom instruction with non-disabled age appropriate peers in an accessible environment. DCPS also failed to provide FD the special chair that he needs to perform seated activities.
63. On March 2, 2006, and because of defendants’ continued Child Find and FAPE failures,
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the parties again attended a due process hearing. The purpose of the hearing was to resolve DCPS’s failure to develop an appropriate IEP, offer an appropriate placement, provide a dedicated aide, and provide an appropriate chair for seated activities. The parties entered into a settlement agreement during the hearing regarding some of these matters.
64. FD’s parents are waiting for an appropriate educational placement for FY 2006-2007. In March 2006, DCPS informed FD’s parents that it would be changing FD’s placement to Takoma Elementary School. Takoma is not a medically appropriate or safe placement for FD. The classroom is physically inaccessible for FD because the classroom is entered using stairs, and would require FD to climb steps, which he is unable to do. E ven if a ramp were added, Takoma would not be an appropriate placement. FD has a suppressed immune system due to his kidney transplant. Takoma’s open floor plan with no walls between the class rooms would potentially expose FD to every child in the school through airborne transmission. Both the Takoma Elementary School nurse and FD’s doctors have advised DCPS of these dangers. For these reasons, FD’s parents have objected to Takoma as a placement and believe it to be an inappropriate educational placement. Nevertheless, and despite repeated requests from the parents and parents’ counsel, DCPS has yet to offer an appropriate educational placement for the 2006-2007 school year. F D has exhausted his administrative remedies.
TF 65. T F is a s ix-year-old boy who was born in 1998. He r esides with his mother in Washington, D.C. He sues by his mother and next friend, Angelique Moore. 66. In September 2003, TF began kindergarten at the DCPS Garfield Elementary School. TF’s kindergarten teacher believed that he needed speech and language therapy. Despite his teacher’s
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recommendation, defendants failed to refer him for an evaluation. 67. At the end of the 2003-2004 school year, TF’s kindergarten teacher recommended that
TF repeat kindergarten because of his delays. Defendants again failed to refer him for an evaluation. 68. In August 2004, just days prior to the start of the 2004-2005 school year, TF’s mother
was notified that, due to her home address, TF and her other children would not be able to return to Garfield that school year, but, instead, would have to attend Stanton Elementary School.
69. At the beginning of the 2004-2005 school year, Ms. Moore visited Stanton Elementary School to discuss TF’s speech and language problems. Ms. Moore informed staff at Stanton that TF had speech and language difficulties and that his Garfield Kindergarten teacher had told her that TF should repeat kindergarten. Despite Ms. Moore’s efforts, defendants failed to evaluate TF for speech and other education needs during the school year.
70. In September 2004, staff at Stanton initially placed TF in the first grade, despite his kindergarten teacher’s recommendation that he repeat kindergarten. T F experienced significant academic and behavioral problems during his first months in the first grade, and was returned to kindergarten by the beginning of the second quarter of the school year.
71. In January 2005, frustrated by DCPS’s failure to evaluate TF, his mother arranged for a private speech and language evaluation. The speech language pathologist concluded that TF had severe speech and language deficits and recommended that he receive intensive speech language services.
72. I n April 2005, Ms. Moore, through counsel, sent DCPS copies of the evaluation recommending speech and language therapy and requested a full evaluation, including a psychoeducational assessment and an occupational therapy evaluation.
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73. In June 2005, a due process hearing was conducted to challenge DCPS’s failure to evaluate TF. During the hearing, DCPS agreed to provide TF with four 30-minute sessions of speech language therapy weekly during the summer of 2005. The administrative hearing officer found, inter alia, that DCPS had conceded that there had been a Child Find violation and ordered that DCPS evaluate TF on an expedited basis no later than July 8, 2005. DCPS was ordered to provide TF with a schedule for summer speech language services no later than June 24, 2005. DCPS failed to do so until July 19, 2005.
74. On September 19, 2005 ( nearly two years after TF’s kindergarten teacher first recommended that he be evaluated for special education), defendants found TF to be eligible for special education and related services. DCPS completed an IEP for him, which included 10 hours of specialized instruction and 1 hour of speech language therapy, at his neighborhood school, Stanton Elementary School.
75. On June 8, 2006, TF’s mother attended an IEP Review meeting. During the meeting, defendants determined that TF continued to need special education and related services.
76. TF and Ms. Moore have exhausted their administrative remedies. Defendants
77. Defendant District of Columbia (hereafter “District”) is a municipal corporation subject to 42 U.S.C. 1983. The District is a “state” within the meaning of the IDEA and the Rehabilitation Act. T he District receives federal funds under IDEA and must therefore comply with the requirements of the IDEA and Section 504 of the Rehabilitation Act. Through its designated agency, DCPS, the District is required to make available a FAPE for all children with disabilities residing in the District who are ages 3 to 22. 5 D.C.M.R. 3002.1(a). I t is also required to ensure that
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procedures are implemented to identify, locate, and evaluate all children with disabilities residing in
the District. 5 D.C.M.R. 3002.1(d).
78. Defendant Clifford B. Janey is the Superintendent of the District of Columbia Public
Schools and is sued in his official capacity. Pursuant to D.C. Code 38-105, the Superintendent is
charged with directing and supervising all matters pertaining to instruction in all public schools. Dr.
Janey serves as the chief executive of DCPS to the extent that it serves as the State Education Agency
(SEA) and the Local Education Agency (LEA) for the District of Columbia.
CLASS ACTION ALLEGATIONS
79. Named plaintiffs bring this action on behalf of themselves and all others similarly situated,
namely, the following four 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;
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.
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80. The requirements of Rules 23(a)(1)-(4), (b)(2), and (b)(3) of the Federal Rules of Civil
Procedure are met as to each subclass because:
(a) Each subclass is so numerous that joinder of all members of the subclass is impracticable. On information and belief, hundreds of children with disabilities in the District of Columbia, aged three through five, inclusive, have not been or will not be timely identified for the purposes of offering special education and related services, have not or will not receive a timely initial evaluation for the purposes of offering special education and related services, have not or will not receive a t imely determination of their eligibility for special education and related services, and have not or will not receive a smooth and effective transition from the Part C early intervention program to Part B preschool special education.
(b) There are questions of law and fact common to each subclass, namely whether DCPS’s policies, procedures, and practices related to identification, timely evaluation, timely eligibility determination, and smooth and effective transition from Part C to Part B violate the IDEA, Section 504 of the Rehabilitation Act, implementing regulations, and/or District of Columbia law.
(c) The claims of the named plaintiffs are typical of the claims of the subclass that they represent in that each of the named plaintiffs has a disability that would make him or her eligible for special education and related services, but was not identified and/or located for the purposes of offering special education and related services, when three to five years old; did not receive a timely initial evaluation for the purposes of offering special education and related services, when three to five years old; did not receive a timely determination of his or her eligibility for special education and related services, when three to five years old; or did not receive a smooth and effective transition from the Part C early intervention program to Part B special education.
(d) The named plaintiffs will fairly and adequately represent and protect the interests of each subclass that they represent. They have no interests that are antagonistic to the subclass and seek relief that will benefit all members of the subclass. They are represented by counsel with significant experience with this type of litigation; and
(e) The defendants have acted and continue to act on grounds generally applicable to each subclass, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to each subclass as a whole.
(f) The common facts and questions of law shared by each subclass predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
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STATUTORY BACKGROUND 81. In 1975, Congress enacted the Education for All Handicapped Children Act (“EHA”), now known as the Individuals with Disabilities Education Act (“IDEA”), “to ensure that the rights of children with disabilities * * * are protected.” 20 U.S.C. 1400(d)(1)(B). 82. The IDEA is a federal grant program administered by the U.S. Department of Education (“DOE”). 20 U.S.C. 1400, et seq. States and other jurisdictions, including the District of Columbia, that receive DOE funds must comply with the mandates contained in the IDEA and its implementing regulations. 83. T he IDEA’s primary mandate is the guarantee that all children with disabilities have available to them a “free appropriate public education [“FAPE”] that emphasizes special education and related services designed to met their unique needs * * * .” 20 U.S.C. 1400 (d)(1)(A). This is known as the duty to provide “FAPE.” 84. In enacting the FAPE requirement, Congress originally only provided for children with disabilities who were between the ages of 5 and 21. Ho wever, in 1986, Congress amended the IDEA’s FAPE protection to extend to children who were between three and five years of age. Pub. L. 99-457, Title II, Sec. 203(a). Accordingly, the IDEA declares that a “free appropriate public education,” must be made available to “all children with disabilities residing in the State between the ages of 3 and 21 * * *.” 20 U.S.C. 1412(a)(1)(A). 85. In order to ensure that all children ages three to twenty-one receive FAPE, one of the specific mandates of the IDEA is that “[A]ll 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 * * * . ” 20 U. S.C. 1412(a)(3)(A); 34 C.F .R.
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300.125(a)(1). This is known as the “Child Find” duty. This duty extends to children ages three to five years old.
86. The specific requirements of the Child Find and FAPE duties and the process defendants must follow when identifying, locating, evaluating, and offering special education services to children with disabilities are clearly set forth in the IDEA, the Rehabilitation Act, the implementing regulations of the U.S. Department of Education, and District of Columbia law.
87. For example, defendants are required to put “in effect policies and procedures” to ensure that all children with disabilities who are in need of special education and related services are identified, located, and evaluated. 20 U. S.C. 1412(a)(3)(A); 34 C.F.R. 300.125(a); 5 D. C.M.R. 3002.1(d), 3002.3(a). Def endants must ensure that a “ practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” 20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.125(a).
88. Defendants are required to identify and notify children with disabilities of the availability of special education and related services. Defendants have a dut y to “identify and locate every qualified handicapped” child residing in the jurisdiction and to “[t]ake appropriate steps to notify handicapped persons and their parents or guardians of [this] duty * * *.” 34 C.F.R. 104.32. See 29 U.S.C. 794(a); 34 C.F.R. 104.33.
89. Defendants are allowed 120 days from the date of a referral of a child to identify children with suspected disabilities, evaluate them, determine whether they are eligible for special education and related services, offer them a written educational program (known as an Individualized Education Program (“IEP”)) and offer them an appropriate educational placement. D.C. Code 38-2501.
90. Defendants are required to evaluate children suspected of disabilities. 20 U.S.C. 1414(a) -
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(c). Defendants must conduct comprehensive “initial evaluations” to “determine whether a child is a child with a disability” and “to determine the educational needs of such child.” 20 U. S.C. 1414(a)(1). See 34 C.F.R. 300.320(a), 34 C.F.R.300.532; 5 D.C.M.R. 3005.1. Def endants’ evaluations must conform to the evaluation procedures set forth in the IDEA and implementing regulations. See 34 C.F.R. 300.530-300.536, 300.540-300.543. For example, defendants must “assess[] in all areas related to the suspected disability, including * * * health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.” 34 C.F.R. 300.532 (g). See 20 U.S.C. 1414(b)(3). Defendants must conduct evaluations that are “sufficiently comprehensive to identify all of the child's special education and related services needs * * *.” 34 C.F.R. 300.532(h). See 20 U.S.C. 1414(b); 300.320; 5 D.C.M.R 3005.1, 3005.33005.10.
91. After conducting evaluations, defendants are required to determine eligibility for services. Defendants must convene a team that includes parents, teachers, and other qualified individuals to review the results of the evaluations, along with other information, in order to determine whether a child is disabled and needs special education and related services. 20 U.S.C. 1414(b)(4); 20 U.S.C. 1414(d)(1)(B); 34 C.F.R. 300.534, 300.535; 5 D.C.M.R. 3003.1, 3003.3, 3006.1 - 3006.7.
92. After determining eligibility, defendants are required to offer special education and related services. Defendants must participate with parents, teachers, and other qualified professionals to draft a comprehensive instruction plan, the IEP, which must meet the child’s unique needs and provide him or her with a free appropriate public education. 20 U.S.C. 1414(d); 34 C.F.R. 300.340 - 300.350, 300.535(b); 5 D.C.M.R. 3007.1- 3007.8. T he IEP must be developed within 30 days of a determination that a child needs special education services. 34 C.F.R. 300.343(b)(2); 5 D.C.M.R
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3007.1. The IEP must include annual goals to serve as the roadmap for the child’s educational development. 20 U.S.C. 1414(d)(1)(A); 34 C.F.R. 300.347; 5 D.C.M.R. 3009.1. The IEP must also include the specific special education and related services to be provided to the child. Id. Defendants must implement an IEP “as soon as possible,” 34 C.F.R. 300.342(b)(ii), 5 D.C.M.R. 3010.2, and must propose an appropriate placement for the child that can provide the special education and related services listed in the IEP. See 34 C.F.R. 300.350(a); 5 D.C.M.R. 3013.1.
93. Defendants’ Child Find and FAPE obligations extend to children who are cared for or enrolled in any potential setting, including children enrolled in public, private, and charter schools and daycare facilities. See 20 U.S.C. 1412(a)(10)(A)(ii); 34 C.F.R. 300.125, 300.451. These obligations extend to children enrolled in kindergarten, pre-kindergarten, and Head Start programs at DCPS. The child find obligations also extend to “highly mobile children * * * such as migrant and homeless children * * *.” 34 C.F.R. 300.125(a)(2)(i).
94. In addition, and in order to ensure that defendants are able to provide FAPE and comply with Child Find for all disabled children by the time they turn three years old, Congress added a program to serve children from birth to age three with disabilities, known as IDEA Part C. See 20 U.S.C. 1431-1455. Part C requires defendants to provide disabled children from birth to age three with “appropriate early intervention services” and to develop an Individual Family Service Plan (“IFSP”), which is similar to an IEP. 20 U.S.C. 1435(a).
95. Defendants’ Child Find and FAPE duties extend to ensuring that infants and toddlers who are “participating in early intervention programs [under Part C of the IDEA], and who will participate in those preschool programs [once they turn three years old under Part B of the IDEA], * * * experience a smooth and effective transition to [Part B] in a manner consistent with” the IDEA by
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their third birthday. 20 U.S.C. 1412(a)(9). In order to ensure that all three year olds receive FAPE, the IDEA requires that defendants ensure that “by the third birthday of such a ch ild [who is transitioning from Part C to Part B], an [IEP or IFSP] * * * h as been developed and is being implemented for the child.” 20 U.S.C. 1412(a)(9).
96. The IDEA further requires that defendants ensure that preschool children “remain in the then-current educational placement,” including the IFSP, if an IEP has not been developed by a child’s third birthday, or if there is a dispute concerning an IEP during the transition process. 20 U.S.C. 1415(j). This is known as the “stay-put” requirement.
FACTS 97. As described below, defendants are failing to comply with their Child Find and FAPE obligations to identify, locate, evaluate, and offer special education and related services to all preschool children with disabilities in the District of Columbia, including failing to ensure a “smooth and effective” transition from Part C to Part B for disabled children by their third birthday. Defendants’ conduct discriminates against plaintiffs and demonstrates gross misjudgment because it departs from Child Find and FAPE standards that are accepted and followed by other jurisdictions and educational professionals. Defendants’ failures are widespread and systemic and can be rectified only with injunctive and declaratory relief from this Court. 98. Defendants have not put into “effect policies and procedures” to ensure that all preschool children who may need special education services are identified, located or evaluated. Defendants have also failed to “develop[] and implement[]” a “practical method” to determine the children who are in need of special education and related services. For example, in contrast to other jurisdictions, defendants do not have a Child Find Program and have not established an Office of Child Find that
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identifies, locates and evaluates children for special education and related services. Defendants have no budget for Child Find activities. Defendants have failed to comply with the time lines in the IDEA and local laws that require defendants to identify and evaluate preschool children with suspected disabilities, determine their eligibility for services, develop their IEP’s, and place them in an appropriate educational program within a 120 days after a request is made.
99. Defendants have failed to take basic steps to notify and locate disabled children in the District who are in need of services and who are not receiving them. For example, defendants have failed to notify parents and other members of the public who work with preschool children that special education and related services are available through DCPS at no cost to the family. I n contrast to many other jurisdictions in the country, defendants have failed to conduct adequate public awareness activities to inform the public, including parents, health care providers, child care centers, advocates, community centers, and other members of the general public who work with preschool children who may need special education services. Defendants have failed to inform, train and work with preschools, child care providers, and other groups who care for a majority of the District’s preschool children about the availability of special education and related services through DCPS and about how parents and guardians may access these services. Defendants have failed to develop and distribute sufficient materials to the general public about the availability of special education and related services for preschool children. As a result, hundreds of preschool children with disabilities who need special education and related services do not know of the availability of services and are not identified, located, evaluated or offered these services.
100. Defendants do not have an adequate method of identifying or locating children with suspected disabilities. Defendants do not have an adequate method of screening or tracking children
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with suspected disabilities. F or example, defendants’ data tracking systems, including ENCORE, are deficient and incapable of tracking adequately disabled children to ensure defendants’ compliance with FAPE and Child Find. Defendants also do not have an adequate intake and referral process that identifies and locates children who want special education and related services. For example, defendants refuse to accept referrals from day care providers, doctors, neighbors, social workers, advocates, or other persons with knowledge about children who may qualify. They have a policy of accepting referrals only from parents or DCPS employees. Even when parents make referrals or requests for services on behalf of their children, defendants have delayed action for many months or failed to act at all. As a result, hundreds of preschool children with disabilities are not identified as disabled and are deprived of access to the special education and related services that they need.
101. Defendants are failing to evaluate preschool children for special education and related services or are performing these evaluations after months of delay, in violation of the IDEA’s evaluation procedures, or not at all, despite parents’ repeated requests for these evaluations. DCPS’s own experts and staff have stated that DCPS does not have staff to conduct these evaluations in a manner required by the IDEA.
102. Defendants also fail to assess children in all areas related to suspected disabilities. Defendants do not routinely conduct medical or psychiatric evaluations when they are indicated and do not have the staff to perform these evaluations. Defendants often fail to conduct occupational or assistive technology evaluations, even when the need is apparent. DCPS’s own experts and staff have stated that DCPS does not have the staff to conduct adequate assessments. As a r esult, many preschool children with disabilities are not properly evaluated and consequently are denied access to needed special education and related services.
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103. Defendants have failed to convene timely “IEP meetings” to determine eligibility for special education services and to develop IEP’s, which specify what services will be provided. Defendants delay IEP meetings for months or convene them without the required participants, including teachers, parents, and other qualified professionals. As a result, many preschool children experience substantial delays before they are found eligible and receive services.
104. Def endants have failed to offer plaintiffs appropriate placements or have offered placements only after many months of delay. For example, defendants have proposed programs that do not have the staff, resources or capacity to implement IEP’s for preschool children with disabilities. As a result, many preschool children who have been found eligible and in need of services do not receive special education and related services.
105. Defendants have failed to ensure a “smooth and effective transition” for disabled infants and toddlers transitioning from Part C of the IDEA to Part B of the IDEA by their third birthday. As a result, scores of preschool children are terminated from special education and related services once they turn three years old or else experience a significant interruption in critical services. Many children who received Part C services and whose services were terminated at their third birthday receive no services at all from DCPS until after they reach mandatory school age at five years of age.
106. Def endants have conceded the central structural deficiencies and inadequacies underlying the numerous Child Find failures articulated above (paras 97-105). For example, the Executive Director of Special Education Reform for the DCPS, Mary Lee Phelps, stated this month in a sworn statement filed by defendants on July 14, 2006, in connection with the fairness hearing on remedy in Blackman/Jones v. D.C., D. D.C., Civil Action No. 97-1629/97-2402 (PLF), that defendants have failed to put in place adequate staff or to train current staff to carry out activities
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related to Child Find. In particular, DCPS has a 50% vacancy rate for staff in several key areas and does not have sufficient staff to conduct assessments, evaluations, determine eligibility, hold IEP’s, and offer placements in accordance with the IDEA’s requirements. I n addition, DCPS’s own statistical expert, Rebecca Klemm, submitted an affidavit in connection with the same fairness hearing stating that DCPS’s tracking and computer system, called ENCORE, is deficient and fails to track and ensure timely compliance with IDEA mandates, including the completion of evaluations and IEP and multi-disciplinary team (“MDT”) meetings. Dr . Klemm reported that such evaluations and meetings were consistently delayed by many months. Ms. Phelps also notified the Court that the deficiencies in the computer systems and tracking systems made coordination with other District agencies, such as the Child and Family Services Administration (“CFSA”), impossible.
107. Defendants’ failures have resulted in a Child Find system that departs grossly from accepted standards in other jurisdictions and that is grossly inadequate when compared to those programs in comparable parts of the country. According to statistics maintained by the Department of Education, Special Education Office, the District of Columbia is consistently ranked last among 50 states in the provision of special education services to preschool children, ages three through five. In 2003, only 1.7% or 301 preschool children were provided special education services in 2003, less than one third of the national average of 5.56% and far less than the second worst state, Texas, which provides services to 3.96% of three to five year olds. In 2004, defendants were again ranked last among 50 states in special education services to preschool children. On ly 579, or 3.16%, of preschool children received some type of special education or related services. This figure is again well-behind the national average of 5.87%.
108. It is critical that children with disabilities be identified in their preschool years or earlier
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so that their disabilities can be treated and managed to ensure that they have educational opportunities in elementary and secondary school. Defendants’ actions have harmed hundreds of current and former preschool children in the District of Columbia by adversely affecting their educational opportunities, learning, and well-being.
109. Defendants’ actions amount to a policy, pattern, practice or custom that violates federal law and shows deliberate indifference to plaintiffs’ federal rights under the IDEA, Rehabilitation Act, and Due Process Clause of the Fifth Amendment.
CLAIMS FIRST CLAIM INDIVIDUALS WITH DISABILITIES IN EDUCATION ACT 110. The IDEA and its implementing regulations require that “[a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive * * *.” 20 U.S.C. 1412(a)(1)(A). See 20 U.S.C. 1400(d)(1)(A); 34 C.F.R. 300.121. 111. The IDEA and implementing regulations require states to have “in effect policies and procedures” 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 and [that] a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” 20 U.S.C. 1412(a)(3)(A). See 34 C.F.R. 300.125. 112. The IDEA requires that defendants ensure a “smooth and effective transition” from Part C to Part B services for disabled infants and toddlers by their third birthday. 20 U.S.C. 1412(a)(9). Defendants must ensure that “by the third birthday * * * an individualized education program, or *
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* * an individualized family service plan has been developed and is being implemented for the child.” Ibid. 34 C.F.R. 300.121; 34 C.F.R. 300.132. If defendants cannot ensure that an IEP is in place for qualifying children by their third birthday, or if there is a dispute concerning the IEP, defendants must ensure that these children are permitted to remain in their “current educational placement,” including an IFSP, at no cost to the parent if they chose. 20 U.S.C. 1415(j).
113. As set forth in paragraphs 1- 109 above, defendants have a policy, pattern, and practice of failing to identify, locate, evaluate or offer special education and related services and of failing to ensure a smooth and effective transition for disabled preschool children before their third birthday. Defendants failures are numerous and systemic.
114. Defendants’ actions violate 20 U.S.C. 1412(a)(1)(A), 20 U.S.C. 1412(a)(3)(A), 20 U.S.C. 1412(a)(9), 20 U.S.C. 1415(j), 20 U.S.C. 1400 (d)(1)(A), and the implementing regulations.
SECOND CLAIM REHABILITATION ACT 115. Sect ion 504 o f the Rehabilitation Act, 29 U.S.C. 794(a), and its implementing regulations, forbid defendants from discriminating against or excluding an otherwise qualified child from participation in the federally funded program or activity because of the child’s disability. Defendants are liable under 29 U. S.C. 794(a) for IDEA violations where they exercise gross misjudgment or depart grossly from acceptable standards among educational professionals. 116. T he regulations relating to Section 504 o f the Rehabilitation Act provide that “a recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped” child in its jurisdiction. 34 C.F.R. 104.33.
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117. The regulations also provide that “[a] recipient that operates a public elementary or secondary education program or activity shall annually: (a) Undertake to identify and locate every qualified handicapped” child residing in the jurisdiction; and “(b) [t]ake appropriate steps to notify handicapped persons and their parents or guardians of [this] duty * * *.” 34 C.F.R. 104.32.
118. Plaintiffs are qualifying individuals under the Rehabilitation Act. Defendants have failed to offer a free appropriate public education to plaintiffs, which they have offered to non-disabled four and five year olds through DCPS pr e-kindergarten, Head Start, and kindergarten programs. Defendants have failed to identify, locate, evaluate, or offer special education and related services to plaintiffs. Def endants’ failures are n umerous and systemic and discriminate against plaintiffs. Defendants’ actions are taken with gross misjudgment and depart grossly from accepted Child Find and IDEA standards and practices when compared to other jurisdictions.
119. Defendants’ actions violate Section 504 of the Rehabilitation Act and implementing regulations.
THIRD CLAIM DUE PROCESS 120. The Due Process Clause of the Fifth Amendment bars defendants from depriving plaintiffs of a protected liberty interest without due process of the law. 121. Pl aintiffs have a pr otected liberty interest in a f ree appropriate public education guaranteed by the IDEA, implementing regulations, and District of Columbia law. 122. Defendants have deprived plaintiffs of a free appropriate public education by failing to comply in an adequate and timely manner with the IDEA, implementing regulations, the D.C. Code, and District of Columbia regulations. Defendants’ failures are numerous and systemic.
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123. Defendants’ actions violate the Due Process Clause of the Fifth Amendment. FOURTH CLAIM D.C. CODE
124. D.C. Code 38-2501 requires that defendants “shall assess or evaluate a student, who may have a disability and who may require special education services, within 120 days from the date that the student was referred for an evaluation or assessment.”
125. Defendants violate D.C. Code 38-2501 because they fail to evaluate preschool children who may have a disability within 120 days of referral for an assessment.
FIFTH CLAIM DISTRICT OF COLUMBIA REGULATIONS 126. Di strict of Columbia regulations require that defendants make available “a free appropriate public education (FAPE) * * * to each child with a disability, ages three to twenty-two,” who is a resident or ward of the District of Columbia. 5 D.C.M.R. 3002.1(a). 127. District of Columbia regulations require that defendants “ensure that procedures are implemented to identify, locate and evaluate all children with disabilities” who reside in the District of Columbia and who are in need of special education and related services. 5 D.C.M.R. 3002.1(d). See 5 D.C.M.R. 3002.3(a). 128. District of Columbia regulations require that defendants ensure that “beginning at age three, FAPE is available to any child with a disability who needs special education and related services, including * * * highly mobile children, such as migrant or homeless children * * *.” 5 D.C.M.R.3002.1(e). 129. Defendants have failed to identify, locate, evaluate and offer special education and
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related services and a free appropriate public education to plaintiffs. Def endants’ failures are
numerous and systemic.
130. Defendants’ actions violate 5 D.C.M.R.3002.1(a), (d), (e), 3002.3(a).
RELIEF
Plaintiffs, on behalf of themselves and all other persons similarly situated, request that this
Court grant the following relief:
(1) hybrid certification of this action, as a class action, pursuant to Rule 23(b)(2) and Rule
23(b)(3) of the Federal Rules of Civil Procedure, of the following four 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;
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.
(2) A declaratory judgment that defendants have violated the following federal statutes and
regulations:
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(a) The IDEA, 20 U.S.C. 1400, et seq, namely 20 U.S.C. 1412(a)(3)(A), 20 U.S.C. 1412(a)(9), 20 U.S.C. 1400(d)(1)(A), 20 U.S.C. 1412(a)(1)(A) and implementing regulations by failing to identify, locate, evaluate, or offer a free appropriate public education to plaintiffs in accordance with the IDEA and implementing regulations and by failing to ensure a smooth and effective transition from Part C to Part B; (b) S ection 504 or the Rehabilitation Act, 29 U.S.C. 794(a), and the implementing regulations, 34 C.F.R.104.32 and 34 C.F.R.104.33, by exercising gross misjudgment in failing to identify, locate, evaluate and offer plaintiffs a free appropriate public education; (c) The Due Process Clause of the Fifth Amendment by depriving plaintiffs of their rights and interests under the IDEA, implementing regulations, and District of Columbia law with respect to the identification, location, evaluation and offer of a free appropriate public education; (d) D.C. Code 38-2501 by failing to evaluate or assess plaintiffs within 120 days of a referral; and (e) 5 D. C.M.R. 3002.1(a), (d), (e), and 3002.3(a) by failing to identify, locate, evaluate or offer a free appropriate public education to plaintiffs. (3) A preliminary and permanent injunction ordering defendants to: (a) develop and implement adequate and effective policies and procedures and a practical method of identifying, locating and evaluating plaintiffs for special education and related services;
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(b) notify and inform parents and members of the community that special education and related services are available to plaintiffs at no cost to the parent or family;
(c) develop an adequate and effective intake and referral process that accepts referrals from any individual for a child who may need special education and related services;
(d) conduct adequate and timely initial evaluations; (e) determine eligibility and develop and implement IEP’s in an adequate and timely manner; and (f) offer adequate and timely education placements to implement IEP’s (g) ensure a s mooth and effective transition from Part C to Part B services for plaintiffs by their third birthdays. (4) An order enjoining defendants to maintain those services mandated by the IFSP at no cost to the parent as the current educational placement for those children in Part C programs who are eligible for Part B and who do not have an IEP in place by their third birthday. (5) An order enjoining defendants to take appropriate affirmative actions to ensure that the violations of federal and District of Columbia law complained of above do not continue to be engaged in by defendants, their agents, successors, employees, subordinates, attorneys and those acting at their direction; (6) An order enjoining defendants to provide compensatory education to plaintiffs whom defendants failed to identify, locate, evaluate or offer special education and related services when they were between three and five years old, inclusive; (7) An order requiring defendants to reimburse plaintiffs for the funds expended to obtain evaluations, special education and related services as a result of defendants’ violations of
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federal law;
(8) An order appointing a Special Master whose duties shall include, but not be limited to,
monitoring and reporting to the Court regarding:
(a) defendants’ compliance with the Court’s Order;
(b) remedies necessary to bring about full compliance with the Court’s order.
(9) An award of reasonable attorneys’ fees and costs; and
(10) Such other relief as may be deemed proper by the Court.
Respectfully submitted,
/s/ BRUCE J. TERRIS (D.C. Bar No. 47126) KATHLEEN L. MILLIAN (D.C. Bar No.412350) JANE M. LIU (D.C. Bar No. 989847) TODD A. GLUCKMAN (D.C. Bar No. 1004129) TERRIS, PRAVLIK & MILLIAN, LLP 1121 12th Street, N.W. Washington, DC 20005 (202) 682-2100
/s/ JEFFREY S. GUTMAN (D.C. Bar No. 416954) The George Washington University Law School 2000 G Street, N.W. Washington, DC 20052 (202) 994-7463
/s/ MARGARET A. KOHN (D.C. Bar No. 174227) Attorney at Law 619 Pennsylvania Avenue, S.E. 2nd Floor Washington, DC 20003 (202) 544-1200
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Case 1:05-cv-01437-RCL Document 398 Filed 11/08/13 Page 37 of 37 /s/
CYRUS MEHRI (D.C. Bar No. 420970) Mehri & Skalet, PLLC 1250 Connecticut Ave., N.W., Suite 300 Washington, DC 20036 (202) 822-5100
37

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DL, et al., on behalf of themselves and others similarly situated,
Plaintiffs, v. THE DISTRICT OF COLUMBIA, et al.,
Defendants.

) )
) ) ) ) Civil No. 05-1437 (RCL) ) ) ) ) )

MEMORANDUM OPINION

During a status conference on Decem ber 18, 2013, and after consideration of the

District’s Motion to Stay Discovery [394], the plaintiffs’ Opposition [396] thereto, and the

District’s Reply [397], the Court denied the District’s motion and ordered that discovery proceed

according the schedule outlined in the parties’ Joint Status Report [395]. This opinion will set

forth the Court’s rationale for its Order [400] denying the District’s motion.

I. BACKGROUND

Prior opinions of this Court have detailed the complex factual and procedural background

of this litigation at length. See, e.g., DL v. District of Columbia, 845 F.Supp.2d 1 (D.D.C 2011);

DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C. 2006). For present purposes, the Court

will recount only those facts relevant to this opinion.

Plaintiffs—residents of the District of Colu mbia 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”). In Augus t 2006, this Court certified a broad plaintiff class pursuant to Federal

1

Rule of Civil Procedure 23(b)(2), consisting of children harm ed by the Distric t’s failure to comply with various provisions of the IDEA. DL v. District of Columbia , 237 F.R.D. 319, 324 (D.D.C. 2006).
In 2011, the Suprem e Court decided Wal-Mart Stores, Inc. v. Dukes , 131 S. Ct. 2541 (2011), which clarified the p roper interpretation of the comm onality requirement for class certification under Rule 23(a)(2). Shortly thereafter, the U.S. Court of Appeals for the District of Columbia Circuit applied Wal-Mart to reve rse this Court’s certification of the plaintiff class, holding that the class lacked co mmonality because the “harm s 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 v. District of Columbia, 713 F.3d 120, 127 (D.C. Cir. 2013).
On remand, this Court certified four subcla sses, each consisting of children harm ed by the failure of the Distr ict to com ply with a specific provision of the IDEA. Mem orandum Opinion, November 8, 2013, ECF No. 394. The Dist rict, pursuant to Ru le 23(f), immediately appealed the subclass certification, and m oved this Court to stay discovery pending the resolution of that appeal. For the reasons detailed below, this Court denied the District’s motion.
II. ANALYSIS Federal Rule of Civil Proce dure 23(f), which permits interlocutory appeals of class
certification orders, p rovides that “[a]n appeal does not stay proc eedings in the district court unless the district judge or the cou rt of appeals so orders.” Because the Rule was “drafted to avoid delay,” Blair v. Equifax Check Services, Inc ., 181 F.3d 832, 835 (7th Cir. 1999), a stay of proceedings following a Rule 23(f) petition is n ot automatic and requires a “demonstration that the probability of error in the class certification decision is high enough that the costs of pressing
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ahead in the district court exceed the costs of waiting,” id. See also, e.g., Prado-Steiman v. Bush, 221 F.3d 1266, 1273, n. 8 (11th Cir. 2000) (“Rule 23 (f) contemplates that in most cases discovery (at the very least, m erits discovery) will continue no twithstanding the pendency of an appeal of the class certification order”).
Aside from noting that in many cases discovery will continue while a Rule 23(f) petition is pending, In re Loraz epam & Clorazepate A ntitrust Litigation, 289 F.3d 98, 105 (D.C. Cir. 2002), the D.C. Circuit has not ye t articulated the standard for determining whether a stay of discovery is warranted. However, the district courts of this jurisdiction have applied the standard set forth by then-Chief Judge Hogan in In re Lorazepam & Clorazepate Antitrust Litigation, 208 F.R.D. 1, 3 (D.D.C. 2002). Under the Lorazepam standard, courts should consider whether:
(1) there is a substan tial likelihood that th e movant will succeed on the m erits of the claims/appeal; (2) the movant will suffer irreparable injury if an injunction/stay does not issue; (3) others will suffer harm if an injunction/stay is granted; and (4) the public interest will be furthered by an injunction/stay. Id. at 3. Applying these factors to the present case, this Court finds that a stay of discovery is not warranted. As to whether there is a substantial likeli hood of success on the m erits of the District’s 23(f) petition, the Court, having authored the subclass certification opinion after several weeks of consideration and review of Wal-Mart and the Circuit’s opinion, obviously believes both in the soundness of its decision and that it will be affirmed by the Circuit. But experience counsels that divining how the Circuit will rule in any pa rticular case can be injudicious—and even the District admits that the outcome is “difficult to predict.” Def.’s Mot. for Stay of Disc., ECF No. 394, at 2 [hereinafter Def.’s Mot.]. As such, the Court finds that the District’s chance of success
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on the m erits is not so certain as to out weigh the other factors relevant under the Lorazepam standard.
With regard to the second prong, the District argues that the effort required to proceed with discovery constitutes irreparable injury. Importantly, however, “litiga tion expenses alone do not necessarily qualify as irreparable harm,” In re Lorazepam, 208 F.R.D. at 6. And while the District argues that discovery at this stage of the litigation will mirror the 2,500 hours of time and considerable effort previously expended on disc overy in this cas e, Def.’s Mot. at 4, tha t argument appears exaggerated for at least two reasons. First, prior discovery focused on decades of the District’s IDEA compliance—or the lack thereof—while the current discovery will only cover the District’s performance since April 2011. Second, because of the reforms instituted as a result of this litiga tion, the Dis trict maintains an extensive database of statistics regarding its IDEA compliance, known as the Special Educati on Data System (“SEDS”). The District h as averred to this Court th at SEDS is “the sing le system of record for track ing each child’s referral and progress through the special education process. This incl udes all inform ation about assessment, eligibility determination, required supports and services and site of services.” Def.’s June 1, 2012 Report on Programm atic Requirements, ECF No. 333-1, at 7-8. Given the District’s statements regarding the comprehensive and successful nature of this system , id. at 8, producing information regarding its IDEA com pliance from this database should not am ount to the “massive” effort predicted by the District in its motion, Def.’s Mot. at 5.
Regarding the third and fourth prongs, both th e plaintiffs and the public have a strong interest in the prom pt and proper resolution of this litigation, which has now been pending for more than eight years. Further, the harm that could befall the plaintiffs and the public as a result of noncompliance with the IDEA fa r outweighs the comparatively meager cost to the District of
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producing discovery regarding its post-2011 IDEA compliance. In sum, the Court finds that the District has failed to demonstrat e “that the probability of error in the class certification decision is high enough that the costs of pressing ahead in [this Court] exceed the costs of waiting,” Blair, 181 F.3d at 835.
Signed by Royce C. Lamberth, United States District Judge, on January 3, 2014.
5

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

)

DL,1 et al.,

)

Plaintiffs,

)

)

v.

)

Civil Action No. 05-1437 (RCL)

)

DISTRICT OF COLUMBIA, et al.,

)

Defendants.

)

)

_______________________________________)

MEMORANDUM OPINION Plaintiffs, a cl ass o f d isabled 3 - to 5 -year-olds in th e D istrict o f C olumbia, b ring th is action a gainst de fendants t he District o f C olumbia, M ichelle R hee in h er o fficial c apacity a s Chancellor of the District of Columbia Public Schools, and Kerri Briggs in her official capacity as t he current D istrict o f C olumbia S tate S uperintendent of E ducation.2 Plaintiffs a llege th at defendants denied them a free appropriate public education (“FAPE”); failed to identify, locate, and e valuate t hem a s qua lified di sabled c hildren ( “Child F ind” dut ies); a nd f ailed t o provide them a s mooth and effective t ransition from as sistance u nder P art C o f t he IDEA t o assistance under Part B of the IDEA by their third birthdays, in violation of the Individuals with Disabilities and E ducation A ct (“IDEA”), 20 U .S.C. § 1400 et s eq., § 504 of t he Rehabilitation A ct, 29 U.S.C. § 794(a), the Due Process Clause, U.S. CONST. amend. V, and District of Columbia law.

1 Minors are identified by their initials. D.D.C. LCvR 5.4(f)(2). 2 Plaintiffs’ Amended Complaint originally named as defendants the District of Columbia and Clifford B. Janey i n his o fficial c apacity a s S uperintendent o f D istrict o f Columbia P ublic Schools. ( Am. Compl. 1 .) O n December 11, 2007, the Court ordered [87] that Michelle Rhee in her official capacity as Chancellor of District of Columbia Public Schools and Deborah Gist in her official capacity as District of Columbia State Superintendent of Education should substitute for defendant Clifford B. Janey. Kerri Briggs automatically substituted for Deborah Gist when she became State Superintendent of Education. See FED. R. CIV. P. 25(d).
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Before t he C ourt ar e Defendants’ M otion [177] for S ummary J udgment, P laintiffs’ Motion [178] for Partial Summary Judgment on L iability, and Plaintiffs’ Consent Motion [189] for O rder S cheduling Oral A rgument on P ending S ummary J udgment M otions. Upon consideration of Defendants’ Motion for S ummary J udgment, t he o pposition [179] t hereto, t he reply brief [185], applicable law, and the entire record in this case, the Court will grant in part and de ny i n pa rt the motion for t he r easons s et f orth be low. Upon c onsideration o f P laintiffs’ Motion for Partial Summary Judgment on Liability, the opposition [180] thereto, the reply brief [183], applicable law, and the entire record in this case, the Court will grant the motion for the reasons s et f orth be low. U pon c onsideration of P laintiffs’ C onsent M otion [ 189] f or O rder Scheduling O ral A rgument on P ending S ummary J udgment Motions, t he C ourt w ill de ny the motion for the reasons set forth below. I. BACKGROUND
The IDEA was en acted to “ensure t hat all c hildren w ith d isabilities h ave a vailable to them a f ree appropriate public education that emphasizes special education and related services designed t o m eet t heir u nique ne eds a nd pr epare t hem f or f urther education, e mployment, a nd independent living.” 20 U.S.C. § 1400(d)(1)(A). States, as well as the District of Columbia, are eligible for federal funding under this statute if they comply with its terms.
Plaintiffs are a class of disabled 3- to 5-year-olds in the District who allege that they have been denied the benefits of the IDEA. The Court previously ordered that plaintiffs’ class consists of
All children who are or may be eligible for special education and related services, who live i n, or a re w ards o f, the D istrict of C olumbia, and ( 1) w hom defendants di d no t identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive.
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([58] Order, Aug. 25, 20 06.) Plaintiffs have alleged systematic failures by defendants, claiming that defendants have failed to provide a free appropriate public education to a large number o f qualifying children, have failed to find all of the disabled children in the District, have failed to ensure smooth transitions for children within the system, and have done all of this in bad faith or with gross misjudgment.
In t heir First Amended C omplaint for D eclaratory an d Injunctive R elief ( “Amended Complaint”) [46-2], pl aintiffs br ought s uit a gainst de fendants on f ive s eparate claims, s eeking injunctive an d d eclaratory relief. The First C laim alleged a vi olation of 42 U.S.C. § 1983, as a means o f en forcing t he IDEA. The S econd Claim al leged a v iolation o f § 504 of t he Rehabilitation A ct, 29 U .S.C. § 794(a). T he T hird C laim a lleged a vi olation of § 1983, a s a means o f en forcing the Due P rocess C lause o f t he F ifth A mendment to the U .S. C onstitution. The Fourth and Fifth Claims alleged violations of District of Columbia law, D.C. MUN. REGS. tit. 5, §§ 3000.1, 3002.1(a), 3002.1(d), and 3002.3(a).
In several orders dated August 25, 2006, the Court, inter alia, held that plaintiffs did not need to exhaust their administrative remedies, because exhaustion was futile. Even if exhaustion was futile, however, the Court found that plaintiffs had properly exhausted their administrative remedies. ([53] Order, Aug. 25, 2006.) The Court also certified the plaintiffs’ class. ([58] Order.) The parties have completed discovery and have both moved for summary judgment. II. LEGAL STANDARD
The C ourt w ill treat bot h de fendants’ and pl aintiffs’ motions as motions for s ummary judgment. Plaintiffs argue that defendants’ motion is more akin to a motion to dismiss plaintiffs’ claims under Rule 12(b)(6) than to a motion for summary judgment under Rule 56. (Pls.’ Opp’n at 1.) Defendants’ failure to raise this defense in their answer, however, would not waive their
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right to file a 12(b)(6) motion to dismiss now. FED. R. CIV. P. 12(h)(2). But the Court need not resolve whether this is more like a Rule 12(b)(6) or Rule 56 m otion. E ven i f t his were a Rule 12(b)(6) motion, the Court can treat it as a Rule 56 motion for summary judgment, because both parties have had the opportunity to present matters outside the pleadings in this motion. FED. R. CIV. P. 12(d).
The Court will grant a motion for summary judgment where a party shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c)(2). There i s a g enuine i ssue as t o a m aterial f act i f “reasonable minds could differ” as to that fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), cited in Celotex Corp. v. Catrett, 477 U.S. 317, 323 ( 1986)). The burden is on t he moving pa rty t o de monstrate t hat t here i s a n “absence of a genuine i ssue o f m aterial f act” i n dispute. Celotex, 477 U .S. at 323. The Court will believe the evidence of the non-moving party and w ill dr aw all r easonable i nferences from t he r ecord i n t he n on-moving pa rty’s favor. Anderson, 477 U.S at 255. It is not enough, however, for the non-moving party to show that there is merely “some alleged factual di spute”: th e f act mu st b e “ material.” Id. at 247 (emphasis i n original). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. Thus, summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for t he [ non-movant].” Id. at 252. “In de termining a motion f or s ummary judgment, t he c ourt may a ssume th at f acts id entified b y th e mo ving p arty in its s tatement o f ma terial f acts a re admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” D.D.C. LCvR 7(h)(1). III. DISCUSSION
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A. DEFENDANTS’ M OTION F OR S UMMARY J UDGMENT IS G RANTED I N PART AND DENIED IN PART.
Defendants do not raise any factual disputes in their motion. Accordingly, the Court will decide w hether d efendants ar e en titled t o j udgment as a m atter o f l aw as t o the le gal d isputes raised by defendants.
1. First C laim: Plaintiffs C annot Bring Suit U nder § 1983 t o E nforce t he IDEA.
In their Amended Complaint, plaintiffs sued under § 1983 to enforce the IDEA. Plaintiffs do not have a right to sue under § 1983 to enforce the IDEA. Rather, plaintiffs must sue directly under t he IDEA. Defendants ar gue t hat t he U.S. Supreme C ourt’s de cision i n Rancho P alos Verdes forecloses s uit u nder § 1983, b ecause t he IDEA creates a comprehensive en forcement scheme that is incompatible with § 1983 relief. Plaintiffs argue that the broad relief that plaintiffs request exceeds the type of relief available under the IDEA, so suit under § 1983 is proper. The Court agrees with defendants.
While t his cas e w as p ending, t he S upreme C ourt de cided Rancho Palos V erdes v. Abrams, which held that a plaintiff may not sue under § 1983 when there is in place a statutory “comprehensive e nforcement s cheme t hat i s i ncompatible w ith i ndividual e nforcement unde r § 1983.” 544 U.S. 113, 120 (2005). The existence of such a scheme indicates that “Congress did not i ntend [ relief u nder § 1983] f or a ne wly created r ight.” Id. “The c ritical que stion, t hen, is whether Congress meant the judicial remedy expressly authorized by [the IDEA] to coexist with an alternative remedy available in a § 1983 action.” Id.
In reaching this conclusion, the Supreme Court explained that “to sustain a § 1983 action, the plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs.” Id. The parties here do not dispute that plaintiffs
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are w ithin t he IDEA’s i ntended cl ass o f b eneficiaries. The C ourt f urther e xplained t hat t his showing, how ever, onl y c reates “a r ebuttable pr esumption t hat t he r ight i s e nforceable unde r § 1983. T he de fendant may d efeat t his pr esumption b y de monstrating that C ongress di d not intend that remedy for a newly created right.” Id. In his concurrence, Justice Stevens underscored the “strength” of t his pr esumption i n t he C ourt’s pr ecedent, r ebuttable o nly i n an “ex ceptional case” t hat i nvolves “ an unus ually c omprehensive a nd e xclusive s tatutory scheme.” Id. at 131 (Stevens, J ., c oncurring). Despite t he s trength of t he pr esumption, ho wever, d efendant ha s rebutted i t. The C ourt concludes t hat C ongress did not i ntend relief u nder t he IDEA t o co exist with relief under § 1983.
The D.C. Circuit has not decided whether an individual may sue under § 1983 to enforce the IDEA. See Blackman v. District of Columbia, 456 F .3d 167, 172 n.6 (D.C. Cir. 2006) (“We have not yet decided whether a section 1983 action can be brought to enforce the FAPE right. . . . Because none of the parties addresses the issue here, we save it for another day . . . .”). There is currently a circuit split on the issue. In light of Rancho Palos Verdes, the First, Third, and Ninth Circuits have held that the IDEA is not enforceable under § 1983. See Blanchard v. Morton Sch. Dist., 509 F .3d 934, 937 (9th Cir. 2007); A.W. v. Jersey City Pub. Schs., 486 F.3d 791 (3d Cir. 2007) (en banc); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st Cir. 2006). The Second Circuit, however, has noted in passing that the IDEA is enforceable under § 1983. See D.D. v. New York City Bd. of Educ., 465 F.3d 503, 513 (2d Cir. 2006); see also Smith v. Guilford Bd. of Educ., 226 F. A pp’x 58, 63 ( 2d Cir. 2007) . T he C ourt a grees w ith t he m ajority of circuits t o a ddress t he issue, i ncluding t he en b anc Third C ircuit, finding that pl aintiffs m ay not s ue unde r § 1983 t o enforce the IDEA.
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The IDEA creates a comprehensive enforcement scheme. First, it provides administrative
remedies, which include “[a]n opportunity for any party to present a complaint . . . with respect
to any matter relating to the identification, evaluation, or educational placement of the child, or
the provision of a free a ppropriate publ ic education t o s uch child,” 20 U .S.C. § 1415(b)(6)(A),
followed by the opportunity for an “impartial due process hearing”:
Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local e ducational a gency i nvolved i n s uch c omplaint s hall ha ve a n oppor tunity f or a n impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.
§ 1415(f)(1)(A). The C ourt he ld pr eviously t hat pl aintiffs di d not h ave t o e xhaust t hese
administrative remedies before bringing a ci vil claim, because exhaustion would be futile. ([53]
Order.) Second, the IDEA provides a “right to bring civil action” in district court:
Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings a nd de cision m ade und er this subsection, s hall ha ve the r ight t o br ing a c ivil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.
§ 1415(i)(2)(A). Plaintiffs may bring an action under this subsection.
§ 1415( i)(2)(A) pr ovides a p rivate cause o f a ction in a d istrict court to a ny “party
aggrieved” b y t he administrative findings. Generally, a “p arty aggrieved” is a pa rty w ho ha s
exhausted h is a dministrative r emedies. See Miller e x r el. S. M. v . B d. of Educ. of A lbuquerque
Pub. Schs., 565 F .3d 1232, 1236 ( 10th Cir. 2009); Pedroza v. Los Alamitos Unified Sch. Dist.,
302 F . A pp’x 608, 609 (9th C ir. 2008) . Because t he C ourt pr eviously ruled t hat e xhaustion i s
futile, however, plaintiffs are a “p arty aggrieved” within the meaning of the statute. The IDEA
accords independent, enforceable rights to parties aggrieved. The Supreme Court found that the
IDEA accords “independent, e nforceable rights” t o pa rents of c hildren covered b y t he IDEA,
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because the parents are “parties aggrieved.” See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 526 , 531 (2007). The S upreme C ourt cl arified t hat the IDEA pr ovides t he s ame r ights t o parents as it does to children. Id. at 531. Plaintiffs, therefore, may bring a private cause of action in this Court under § 1415(i)(2)(A) to enforce the IDEA.
The Supreme Court has held that a plaintiff may not bring suit under § 1983 to enforce the predecessor of the IDEA—the Education of the Handicapped Act (EHA). Smith v. Robinson, 468 U .S. 992 ( 1984). In s o hol ding, t he C ourt f ound t hat t he E HA w as a “ comprehensive scheme” that showed that Congress intended potential plaintiffs to “pursue those claims through the carefully tailored administrative and judicial mechanism set out in the statute.” Id. at 1009. In Rancho P alos V erdes, t he C ourt c ited Smith favorably: “We ha ve f ound § 1983 una vailable t o remedy violations in tw o cases: Sea C lammers and Smith. Both of t hese decisions rested upon the existence of more restrictive remedies provided in the violated statute itself. See Smith, 468 U.S. a t 1011 -12 ( recognizing a § 1983 a ction ‘ would r ender s uperfluous m ost of t he de tailed procedural protections outlined in the statute’).” 544 U.S. at 121.
Plaintiffs would likely argue that Congress overruled Smith in 1986 when it amended the predecessor of the IDEA to include language now codified at § 1415(l). This subsection, entitled “Rule of construction,” reads:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available u nder the C onstitution, t he A mericans with Disabilities Act of 1990 [42 U .S.C.A. § 12101 e t s eq.], t itle V of t he R ehabilitation A ct of 1973 [ 29 U .S.C.A. § 791 e t s eq.], or other F ederal l aws protecting th e r ights o f c hildren w ith disabilities . . . . § 1415(l) (emphasis ad ded). Under t his argument, t his s ubsection would s how congressional intent to allow plaintiffs t o s ue under § 1983 as an “other f ederal l aw.” This argument m ay be
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supported b y th e le gislative h istory.3 Under t he Supreme C ourt’s r easoning i n Rancho P alos
Verdes, how ever, this a rgument is u navailing. T he s tatute in q uestion in Rancho P alos V erdes
also contained a “saving clause,” which read: “This Act and the amendments made by this Act
shall not be c onstrued to m odify, i mpair, or s upersede Federal, S tate, or l ocal l aw u nless
expressly so provided in such Act or amendments.” 544 U.S. at 125-26. This statute is similar to
the IDEA, because they both state that the comprehensive enforcement scheme does not preclude
relief under other federal laws. Just as the Supreme Court found that the statute in question had
no effect on claims under § 1983, id. at 126, the Court now finds that § 1415(l) of the IDEA has
no e ffect on § 1983. See A.W., 486 F.3d a t 803 (“[W]e do not a gree t hat § 1415(l) s hows t hat
Congress intended the remedies in the IDEA to complement, rather than s upplant, § 1983. J ust
like the savings clause in Rancho Palos Verdes, this provision merely evidences Congress’ intent
that the claims available under § 1983 prior to the enactment of the Act continue to be available
after its enactment.”). Furthermore, as discussed above, the Supreme Court cited the Smith ruling
favorably i n Rancho P alos V erdes, thus imp licitly in dicating that § 1415(l) did not ove rrule
Smith’s holding.
3 It is unclear whether the Court may use legislative history in this inquiry. Justice Stevens noted in his concurring opinion in Rancho Palos Verdes that the majority opinion “assumes that the legislative history of the statute is totally irrelevant.” 544 U .S. at 131 ( Stevens, J ., c oncurring) (referring to 544 U .S. at 115-27 ( Scalia, J ., majority opinion)); see also A.W., 486 F.3d at 803 n.14.
Even i f the Court were to lo ok a t le gislative history, i s d oes not necessarily s upport p laintiffs’ a rgument. Referring to the amended text, now codified at § 1415(l) of the IDEA, the House conference report provides:
With slightly different wording, both the Senate bill and the House amendment authorize the filing of civil actions under legal a uthorities other than part B o f EHA so lo ng as parents first exhaust administrative r emedies a vailable under p art B of E HA to the same extent as would b e required under t he p art. . . . T he House r ecedes. It is the conferees’ intent that actions brought under 42 U.S.C. 1983 are governed by this provision. H.R. REP. 99-687, at 7 (1986) (emphasis added). As discussed below, this primary purpose of this amendment was to ensure that plaintiffs could use § 1983 as a remedy for constitutional violations, not statutory violations.
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Plaintiffs argue that the IDEA does not provide the full relief they are requesting and that suit under § 1983 is necessary to grant them that relief. The Court finds this argument unavailing. Plaintiffs state that “[t]he central focus of the Amended Complaint is on allegations relating to the operation of defendants’ Child Find system as a whole,” (Pls.’ Opp’n at 6), and “[t]he type of injunctive r elief th at p laintiffs s eek is b roader th an th e in dividual r elief a vailable u nder t he IDEA’s r emedial s cheme,” (id. at 7). Plaintiffs e ssentially a rgue that de fendants ha ve f ailed t o comply with th eir o bligations unde r t he IDEA and t hat this failure t o comply p ervades t he system. A successful civil action directly under the IDEA, however, will have the same effect as a § 1983 action: both will require the District of Columbia to comply with its obligations under the IDEA. Plaintiffs’ argument is a better argument as to why administrative exhaustion is futile, not as to why suit should proceed under § 1983. The Court has already addressed this argument and agreed with plaintiffs that exhaustion would be futile. ([53] Order.)
Finally, as both parties agree, plaintiffs’ status as a class is irrelevant to their right to sue under § 1983 or t he IDEA. See 28 U.S.C. § 2072(b) (providing t hat t he Federal R ules of C ivil Procedure “shall not abridge, enlarge, or modify any substantive right”); see also D.D., 456 F.3d at 512 (“Plaintiffs’ right to a f ree appropriate education is unaffected by the fact that they have chosen to assert their claim in a class action pursuant to FED. R. CIV. P. 23.”).
The C ourt not es t hat e ven i f t he C ourt w ere t o a llow s uit t o pr oceed unde r § 1983, the same cap on attorneys’ fees would exist under § 1983 as it would under the IDEA. See Blackman v. District of Columbia, 456 F.3d 167, 170 (D.C. Cir. 2006) (“[A]n action brought pursuant to 42 U.S.C. § 1983 t o e nforce IDEA r ights i s a s uit ‘ under’ t he IDEA a nd t hus s ubject t o t he rider [limiting attorneys’ fees].”).
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Accordingly, the C ourt w ill g rant in p art and de ny i n pa rt defendants’ motion f or summary ju dgment a s to p laintiffs’ First Claim of t heir Amended C omplaint. The C ourt will grant it in p art insofar a s p laintiffs ma y n ot p roceed u nder § 1983 t o e nforce t he IDEA. The Court will deny it in part insofar as plaintiffs may proceed directly under the IDEA. Furthermore, the Court w ill c onstrue the First C laim o f p laintiffs’ A mended C omplaint to s tate a c ause o f action directly under § 1415(i)(2)(A) of the IDEA.
2. Second Claim: Plaintiffs Cannot Bring Suit Under § 1983 to Enforce § 504 of the Rehabilitation Act.
Defendants argue t hat pl aintiffs c annot br ing s uit under § 1983 t o e nforce § 504 of t he Rehabilitation A ct. (Defs.’ Mot. at 7.) Plaintiffs c oncede t his poi nt. ( Pls.’ O pp’n at 13). Furthermore, this argument is moot, because plaintiffs did not bring suit under § 1983 to enforce § 504. (Am. Compl. at 3.) Rather, they brought suit directly under § 504.
Accordingly, the C ourt w ill de ny defendants’ motion f or s ummary j udgment as t o plaintiffs’ Second C laim unde r t he A mended C omplaint. P laintiffs may proceed d irectly u nder § 504 of the Rehabilitation Act.
3. Third C laim: Plaintiffs C an Bring Suit U nder § 1983 t o E nforce the D ue Process Clause of the Fifth Amendment.
Defendants a rgue t hat plaintiffs c annot br ing suit unde r § 1983 t o e nforce t he D ue Process C lause of t he Fifth A mendment. (Defs.’ M ot. at 6-7.) This a rgument is u navailing. Plaintiffs ma y bring s uit under § 1983 t o e nforce t he D ue P rocess Clause of t he F ifth Amendment.
The Third Circuit en banc held that the reasoning of Rancho Palos Verdes only applies to the applicability of § 1983 “for violations of statutory rights.” A.W., 486 F.3d at 797 (emphasis added). “By preserving rights and remedies ‘under the Constitution,’ section 1415(l) does permit
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plaintiffs to resort to section 1983 for constitutional violations, notwithstanding the similarity of such claims to those stated directly under the IDEA.” Id. at 798 (emphasis in original). The Court agrees with the reasoning of the Third Circuit. As discussed above, this explains the reference to § 1983 i n t he l egislative hi story. W hen e nacting w hat i s now c odified at § 1415(l), C ongress intended to preserve § 1983 as a “vehicle for redressing violations of constitutional rights.” Id. The IDEA’s comprehensive enforcement scheme does not preclude suit under § 1983 to enforce any constitutional rights.
Accordingly, the C ourt w ill de ny defendants’ motion f or s ummary j udgment as t o plaintiffs’ Third Claim of their Amended Complaint. Plaintiffs may sue under § 1983 to enforce the Due Process Clause.
4. Fourth a nd F ifth C laims: The C ourt C an E xercise Supplemental Jurisdiction over Plaintiffs’ Local Claims.
Defendants argue that the Court should decline to exercise supplemental jurisdiction over the Fourth and Fifth Claims of plaintiffs’ Amended Complaint, which arise under local District of Columbia law. Because the Court did not dismiss any of plaintiffs’ federal claims, however, defendants’ motion will be denied.
The C ourt m ay exercise “supplemental ju risdiction o ver a ll o ther c laims th at a re s o related to claims in the action within such original jurisdiction that they form part of the same case o r c ontroversy.” 28 U .S.C. § 1367(a). The Court “ may de cline to exercise s upplemental jurisdiction over a claim under subsection (a)” when:
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) th e district court has d ismissed all claims over w hich it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
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§ 1367(c). The Court did not dismiss claims over which it has original jurisdiction, and the local claims ar e p art o f t he s ame cas e o r co ntroversy as t he federal cl aims. Furthermore, t he l ocal claims do not substantially predominate over the federal claims.
Accordingly, the C ourt w ill de ny defendants’ motion f or s ummary j udgment as t o plaintiffs’ Fourth and Fifth Claims of their Amended Complaint.
B. PLAINTIFFS’ M OTION F OR PARTIAL S UMMARY J UDGMENT IS GRANTED. 1. Defendants Violated the Individuals with Disabilities in Education Act.
As di scussed a bove, the C ourt w ill c onstrue p laintiffs’ A mended C omplaint to s tate a claim directly under § 1415(i)(2)(A) t o e nforce the IDEA. Specifically, p laintiffs allege t hat defendants failed to p rovide p laintiffs w ith a F APE, failed to c omply with th eir C hild F ind duties, and failed to ensure a smooth and effective transition from Part C to Part B, in violation of §§ 1412(a)(1)(A), 1412(a)(3)(A), and 1412(a)(9). (Pls.’ Reply at 3.) Plaintiffs have the burden of proving a violation of the IDEA. See Schaffer v. Weast, 546 U.S. 49, 51 (2005) (holding that the bur den of pr oving a vi olation of t he IDEA l ies on t he pa rty s eeking r elief dur ing t he administrative process).
a. Defendants D enied a F ree A ppropriate P ublic E ducation t o a Large Number of Children, in Violation of the IDEA. i. Legal Standard
Under § 1412(a)(1)(a), a s tate or th e D istrict of C olumbia is e ligible for f inancial assistance under the IDEA if it meets the condition that: “A free appropriate public education is available t o a ll c hildren w ith di sabilities r esiding i n t he S tate be tween t he a ges of 3 a nd 21, inclusive, i ncluding c hildren w ith di sabilities who ha ve be en s uspended or e xpelled f rom school.” § 1401(9) of the IDEA defines “FAPE”:
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The term “free appropriate public education” means special education and related services that—
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency; (C) i nclude a n a ppropriate pr eschool, e lementary s chool, or s econdary school education in the State involved; and (D) a re pr ovided in conformity w ith t he individualized e ducation program required under section 1414 (d) of this title. In th eir motion, pl aintiffs do not a ttempt to s how t hat d efendants “violated a s pecific cl ass member’s right to a FAPE”; rather, “plaintiffs’ focus is on t he large number of children ages 3 through 5 [that] should have been served, but were not served, by defendants’ preschool special education system.” (Pls.’ Mot. at 7.) The Court will grant summary judgment on this claim if it finds that defendants denied a FAPE to a large number of preschool-aged children in the District of Columbia who were eligible to receive a FAPE under the IDEA.
ii. Factual Background The pa rties ha ve pr esented e vidence a bout d efendants’ compliance w ith t he IDEA through and including the year 2007, largely because data is not available for 2008-10. Because the pa rties ha ve onl y conducted c omplete di scovery w ith r egard t o da ta through and i ncluding 2007, the Court can only make findings with respect to the data from 2007 and earlier. Even if the C ourt were to assume that the District of C olumbia has made significant strides to comply with i ts obl igations unde r t he IDEA s ince 2 007, w hich t he C ourt w ould a pplaud, t hat improvement would go to the scope of relief, not to liability. Accordingly, the Court will limit its review of the facts, when necessary, to data through and including the year 2007. The parties agree that in 2007, “5.74% of children ages 3 t hrough 5 nationwide received special education and r elated s ervices u nder P art B o f t he IDEA.” (Pls.’ R eply t o D efs.’ Statement of Disputed Facts (“Disputed Facts Reply”) at 2.)
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The pa rties di sagree a s to pl aintiffs’ a ssertion t hat “ based on t he c ity’s de mographics, more than 6% of preschool-age children residing in the District of Columbia are disabled.” (Id. at 2.) The C ourt f inds t hat t here i s no ge nuine di spute a s t o t his f act, a nd p laintiffs’ a ssertion is correct. Dr. Carl Dunst’s expert report states that “DCPS should be locating and serving at least 6% of the preschool population in special education.” (Pls.’ Ex. 4 at 13.) Although, as defendants claim, Dr. Dunst does not use the precise term “disabled,” Dr. Dunst’s meaning is clear that at least 6% of preschoolers in the District of Columbia qualify for services under the IDEA.
The parties agree that in 2007, the District of Columbia served 2.94% of its 3- to 5-yearolds under the IDEA, which was the lowest rate in the country. (Disputed Facts Reply at 5.) The parties agree that between 1992 and 2007, the District of Columbia served 2-3% of its preschool population each year under the IDEA. (Id. at 6.)
The p arties d isagree a s to p laintiffs’ initial assertion t hat “d efendants h ave s erved approximately half the number of children ages 3 through 5 in the District of Columbia likely to be eligible for preschool special education under part B.” (Id. at 9.) Defendants agree that based on the data in 2007 a nd earlier, this is true; defendants only object to post-2007 data. (Id. at 910.) Plaintiffs clarify that the parties agree that in 2007, this fact was true. (Id. at 10.) Plaintiffs concede that they do not “intend to make any statements about defendants’ current compliance with the IDEA”—that is, compliance post-2007. (Pls.’ Reply at 12.)
iii. Analysis The C ourt finds that, at l east t hrough and i ncluding t he year 2007, d efendants denied a FAPE to a large number of children aged 3 t o 5 years old, in violation of § 1412(a)(1)(a) of the IDEA. The C ourt de clines t o r ule at th is time on de fendants’ l iability s ince 2007. There i s no genuine dispute that defendants only provided a FAPE to approximately half of the 3- to 5-year-
15

old children i n t he District who qualified for a F APE under t he IDEA. A d enial o f s ervices t o half of the eligible population constitutes a denial of a FAPE to a large number of children.
Accordingly, the Court will grant plaintiffs’ motion for summary judgment on liability as to plaintiffs’ FAPE claim under the IDEA.
b. Defendants F ailed t o Comply w ith T heir Child F ind D uties, i n Violation of the IDEA. i. Legal Standard
To receive financial assistance under the IDEA, a state must also comply with its “Child Find” obligation, requiring that:
All children with disabilities residing in the State, including children with disabilities who are h omeless ch ildren o r are w ards of t he State an d children w ith disabilities attending private s chools, r egardless o f t he sev erity o f t heir d isabilities, an d w ho ar e i n n eed o f special education an d related ser vices, are i dentified, located, and e valuated and a practical method i s developed a nd i mplemented to d etermine w hich c hildren w ith disabilities are currently receiving needed special education and related services. § 1412(a)(3)(A) (emphasis a dded). The evaluation c omponent of t he Child F ind obl igation specifies that the District must conduct an initial evaluation of a child to determine two things: (1) whether he qualifies as a “child with a disability” within a timeframe specified by the state, which t he D istrict ha s provided a s “120 da ys from t he da te t he s tudent w as r eferred for a n evaluation or assessment,” D.C. CODE § 38-2561.02, and (2) “to determine the educational needs of a child,” including “ the content of t he c hild’s i ndividualized e ducation pr ogram.” §§ 1414(a)(1)(C), (b)(1)(2)(A). “[E]ither a parent of a child, or a State educational agency, other State a gency, o r l ocal educational a gency may initiate a r equest f or a n in itial e valuation to determine if the child is a child with a disability.” § 1414(a)(1)(A). After the initial evaluation, “the determination of whether the child is a child with a disability . . . a nd the educational needs of the child shall be made by a team of qualified professional and the parent of the child . . . .” § 1414(b)(4).
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ii. Factual Background The parties’ experts agree that a comprehensive Child Find system must include: a definition of the target population, a widespread public awareness campaign, a referral process that f osters the timely identification of children, s creening and evaluation of children who may be eligible for services, an accurate eligibility determination, tracking systems to ensure that all children who are referred are screened, evaluated, and receiving services, and an interagency coordination effort between state and local agencies (citing OSEP online definition of “Child Find,” available at http://www.childfindidea.org). (Pls.’ Ex. 9 at 1; see also Pls.’ Ex. 4 at 5-6.) The parties agree that between 2000 and 2009, “the systems in place to serve the birth-tofive popul ation i n t he D istrict of C olumbia w ere i nadequately d esigned, s upported, a nd facilitated across many years.” ( Disputed Facts Reply at 23-24.) The parties agree that, at least through a nd i ncluding t he year 2007, “defendants’ publ ic a wareness and outreach efforts w ere unlikely t o r esult i n a substantial i ncrease i n t he num ber of referrals t o pr eschool s pecial education.” (Id. at 24-25.) The parties agree that, at least through and including the year 2007, “defendants’ refusal t o ac cept and a ct o n referrals m ade b y primary r eferral s ources was impeding identification of children eligible for preschool special education.” (Id. at 25-26.) The parties agree that, at least through and including the year 2007, “ [d]efendants have pursued the same C hild F ind activities f or s everal years without a chieving a s ignificant in crease in th e number of preschool-age children served under Part B.” (Id. at 28-29.) Plaintiffs assert that “[f]rom 2000 through 2008, 62.02% of all children ages 3 through 5 received a n eligibility d etermination w ithin 1 20 d ays o f r eferral.” (Id.) P laintiffs fu rther assert that “[f]rom 2000 t hrough 2008, on ly 65.80% of children ages 3 t hrough 5 deemed eligible for special e ducation r eceived a n e ligibility d etermination w ithin 1 20 d ays o f r eferral.” ( Id.) Defendants ch allenge t hese t wo as sertions s olely on t he b asis t hat t hey are b ased o n D r. Cupingood’s t estimony, which they argue is in admissible. The C ourt h eld i n a s eparate o rder
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issued t his s ame da te, how ever, that D r. C upingood’s te stimony is a dmissible a s e xpert testimony. The Court therefore agrees with plaintiffs’ assertions.
The parties agree that [o]n March 16, 1998, [the U.S. Office of Special Education Programs (“OSEP”)] entered into a Compliance Agreement with DCPS in order to bring it in to full compliance with the applicable requirements of law as soon as feasible . . . . According to this Agreement, DCPS was required, inter alia, to ensure and document that no later than three years after the effective date of this Agreement an initial evaluation that meets the [requirements of the IDEA] is completed for all children with disabilities. (Id. at 13.) T he p arties agree t hat “ [i]n 2001, OSEP de termined t hat D CPS ha d not m et t he requirement f or t imely evaluations unde r t he C ompliance A greement,” so “ OSEP de signated DCPS a s a ‘ high r isk g rantee’ a nd a ttached S pecial C onditions t o i ts [Federal Fiscal Y ear (“FFY”)] 2001 grant under part B . . . [ including] requirements to ensure that DCPS conducted timely initial evaluations.” (Id.) The parties agree that “[i]n each year that followed, OSEP cited defendants f or t heir f ailure t o comply with t he S pecial C ondition r elated to time ly in itial evaluations a nd e xtended t hat S pecial C ondition i nto t he f ollowing f iscal year,” t hrough a nd including FFY 2008. ( Id. at 14.) The parties agree that “[ f]or FFY 2007, defendants reported a 56% compliance rate with the Special Condition related to timely initial evaluations.” (Id. at 14.)
iii. Analysis The C ourt finds t hat, at least t hrough and i ncluding t he year 2007, de fendants failed t o comply w ith t heir C hild F ind dut ies, i n vi olation of § 1412(a)(3)(A) of the IDEA. T he C ourt declines to rule at this time on defendants’ liability since 2007. There is no genuine dispute that defendants’ attempts to find disabled children in the District through public awareness, outreach, and e ven di rect r eferrals w ere i nadequate. Further, t here i s no genuine d ispute t hat de fendants actually failed to find these disabled children, proven by the large number of children to whom defendants denied a FAPE. F inally, t here i s no g enuine di spute t hat de fendants’ i nitial
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evaluations w ere i nadequate, pr oven b y t he l ow number of 65.80% of ch ildren t hat r eceived a
timely evaluation a nd b y OSEP’s a nnual d eterminations th at th e D istrict d id n ot me et th e
requirement for timely evaluations.
Accordingly, the Court will grant plaintiffs’ motion for summary judgment on liability as
to plaintiffs’ Child Find claim under the IDEA.
c. Defendants F ailed t o P rovide P laintiffs w ith a Smooth and E ffective Transition from Part C to Part B, in Violation of the IDEA.
i. Legal Standard
Part C of the IDEA provides assistance for disabled children from birth to age 3, and Part
B of t he IDEA pr ovides a ssistance f or di sabled c hildren f rom age 3 t o a ge 22. To r eceive
financial assistance under the IDEA, a state must ensure that:
Children participating in early intervention programs assisted under subchapter III [Part C], and w ho w ill participate in preschool p rograms assisted u nder t his su bchapter [Part B], experience a smooth and effective transition to those preschool programs in a manner consistent with section 1437(a)(9) of this title. By the third birthday of such a child, an individualized e ducation program or , i f c onsistent w ith s ections 1414 (d)(2)(B) a nd 1436(d) o f t his title, a n individualized f amily s ervice pl an, ha s be en de veloped a nd is being i mplemented f or the c hild. The l ocal e ducational a gency w ill pa rticipate i n transition p lanning co nferences arranged b y t he designated l ead agency u nder sec tion 1435(a)(10) of this title. § 1412(a)(9) (emphasis added). Section 1437(a)(9), incorporated into this subsection, requires a
state to transition children from Part C to Part B by notifying the LEA that the child will soon be
eligible for services under Part B, convening a transition conference to discuss these services at
least 9 0 d ays b efore th e c hild is e ligible f or P art B s ervices, a nd establishing a t ransition pl an
from Part C to Part B.
ii. Factual Background
The parties agree that, at least between and including the years 2000 to 2007, defendants’
actions “ didn’t r esult in e ffective tr ansitions f or c hildren in to P art B f rom P art C .” ( Disputed
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Facts R eply at 2 2-23.) The p arties a gree t hat for t he 2004 -05 s chool y ear, only 17% of t he eligible children referred by Part C to Part B had an individualized education plan developed and implemented by their third birthdays. (Id. at 19.) The parties agree that for the 2006-07 school year, 4% o f P art C graduates were e nrolled i n pr eschool s pecial e ducation b y t heir t hird birthdays. (Id. at 19-20.)
The parties agree that, at least through and including the year 2008, t he District’s “most significant c hallenge . . . [ was] g etting c hildren th rough th is [ transition] p rocess in a time ly manner with the least amount of disruption to the child and family.” (Id. at 20-22.) The parties agree that, at least through and including the year 2007, “the procedures used by defendants to screen children exiting P art C w ere i n m any cases not ne cessary and delayed pr ovision of preschool special education.” (Id. at 27.) The parties agree that, at least through and including the year 2007, “the screening procedures used by defendants with preschool children were unreliable and were not always aligned with accepted practices in the field.” (Id. at 27-28.)
iii. Analysis The C ourt finds t hat, at least t hrough and i ncluding t he year 2007, defendants f ailed t o comply w ith t heir obl igation t o e nsure a s mooth a nd e ffective t ransition f or di sabled c hildren from Part C to Part B, in violation of § 1412(a)(9) of the IDEA. The Court declines to rule at this time on de fendants’ l iability s ince 2007. T here i s no ge nuine di spute t hat defendants failed t o ensure e ffective t ransitions f rom P art C t o Part B , a s a n ove rwhelming m ajority of di sabled children i n cer tain years di d not ha ve an i ndividualized e ducation pl an a nd e nrollment i n preschool s pecial e ducation b y t heir t hird bi rthdays. T here i s no g enuine di spute t hat t he District’s procedures to facilitate these transitions were inadequate.
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Accordingly, the Court will grant plaintiffs’ motion for summary judgment on liability as
to plaintiffs’ Part C to Part B transition claim under the IDEA.
2. Defendants Violated § 504 of the Rehabilitation Act.
a. Legal Standard
Section 504 of t he R ehabilitation A ct pr ovides t hat “ no ot herwise qua lified i ndividual
with a di sability i n t he United S tates . . . s hall, s olely b y reason of he r or hi s di sability, b e
excluded from t he participation i n, be d enied t he benefits o f, or be s ubjected to discrimination
under any program or activity receiving Federal financial assistance . . . . ” 29 U .S.C. § 794(a).
The implementing regulations for § 504 state: “A recipient that operates a p ublic elementary or
secondary education program or activity shall provide a free appropriate public education to each
qualified ha ndicapped p erson w ho i s i n t he r ecipient's j urisdiction, r egardless of t he n ature o r
severity of the person’s handicap.” 34 C.F.R. § 104.33. The Court set out the standard for a § 504
claim in an earlier opinion in this case:
In or der to s tate a claim unde r S ection 50 4 o f the Rehabilitation A ct in I DEA c ases, plaintiffs must s how t hat “something more t han a mere f ailure t o pr ovide the ‘free and appropriate public education’ required by the IDEA” has occurred. Walker v. District of Columbia, 157 F. Supp. 2d 11, 35 (D.D.C. 2001) (Friedman, J.). Generally, plaintiffs who show e ither “bad faith or gross misjudgment” c an pr evail un der S ection 504 f or I DEA violations. Id. Liability will not be imposed so long as t he “state officials involved have exercised p rofessional judgment, in su ch a w ay as not t o d epart g rossly from accep ted standards among educational professionals.” Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982). ([55] O rder a t 3 -4, A ug. 25, 2006.) In t hat o pinion, t he C ourt he ld that pl aintiffs a lleged
sufficient f acts to me et th is s tandard, a nd t he C ourt de nied de fendants’ m otion t o di smiss
plaintiffs’ § 504 claims.
The Court held above that defendants failed to provide plaintiffs with the FAPE required
by t he IDEA and t hat d efendants f ailed t o c omply w ith t heir C hild F ind obl igations und er t he
IDEA. The C ourt w ill grant s ummary judgment for pl aintiffs on t heir § 504 claim if th ey can
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now show “bad faith or gross misjudgment” by defendants. In their motion, plaintiffs state that they are not trying to prove “that defendants demonstrated ‘bad faith or gross misjudgment’ in denying a FAPE to a specific class member”; rather, they are trying to prove “the longstanding, gross d epartures f rom a ccepted e ducational pr actice w ithin de fendants’ C hild F ind s ystem t hat have r esulted, a nd continue t o r esult, i n t he s ystematic de nial of F APE t o t he e ntire pl aintiff class.” (Pls.’ Mot. at 31.)
b. Factual Background As discussed above, the parties agree that in 1998, OSEP entered into an agreement with the D istrict to b ring it i nto f ull c ompliance w ith t he l aw. In 2001, O SEP de termined t hat t he District was not in compliance. OSEP therefore designated the District as a “high risk grantee,” attaching Special Conditions to its funding. Every year thereafter, at least through and including the year 2007, O SEP c ited de fendants f or f ailure t o c omply w ith t hese S pecial C onditions. (Disputed Facts Reply at 13-14.) As discussed above, the parties agree that in 2007, the District served a lower percentage of its 3 - to 5 -year-old p opulation than did a ny state in th e c ountry. W hile th e District s erved 2.94% of this population, 43 s tates and Puerto Rico served over 5% of this population, and 26 jurisdictions served over 6% of this population. (Id. at 5.) As d iscussed above, t he p arties a gree t hat d efendants’ s creening p rocedures w ere “unreliable and were not always aligned with accepted practices in the field” (id. at 27-28) and that t he s ystems i n pl ace w ere “ inadequately d esigned, s upported, a nd f acilitated ac ross m any years” (id. at 23-24).
c. Analysis
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The Court finds that, at least through and including the year 2007, d efendants knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations, in violation of § 504 of the Rehabilitation Act, 29 U .S.C. § 794(a). The Court declines to rule at this time on defendants’ liability since 2007. There is no genuine dispute that defendants knew, based on communications with OSEP, that they were not in compliance with their legal obl igations, yet t hey f ailed t o change t heir actions. There i s n o genuine di spute t hat defendants’ relative provision of services under the IDEA was lower than that of every state in the country, and in most cases significantly lower. There is no ge nuine dispute that defendants’ failures were a d eparture f rom ac cepted ed ucational p ractices t hroughout t he co untry. A ll o f these facts show defendants’ bad faith or gross misjudgment.
Accordingly, the Court will grant plaintiffs’ motion for summary judgment on liability as to plaintiffs’ claim under § 504 of the Rehabilitation Act.
3. Defendants Violated District of Columbia Law. a. Legal Standard
District of Columbia law incorporates the federal FAPE and Child Find obligations: All local education agencies (LEA) in the District of Columbia shall ensure, pursuant to the I ndividuals w ith Disabilities in Education Act ( IDEA), that all children w ith disabilities, ag es three t o t wenty-two, w ho a re residents o r w ards of t he D istrict o f Columbia, have available to them a free appropriate education (FAPE) and that the rights of these children and their parents are protected. D.C. MUN. REGS. tit. 5, § 3000.1. District law requires the LEA to provide a FAPE to each child with a d isability, § 3002.1(a), and i mposes C hild F ind duties: “ The LEA s hall ensure t hat procedures are implemented to identify, locate, and evaluate all children with disabilities residing in the District who are in need of special education and related services . . . ,” § 3002.1(d); see also § 3002.3(a). The C ourt f ound a bove t hat de fendants de nied a FAPE t o a l arge num ber o f
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children aged 3 to 5 years old and failed to comply with its Child Find obligations under federal law.
b. Analysis The C ourt finds t hat, at least t hrough a nd i ncluding t he year 2007, defendants’ a ctions constitute violations of District of Columbia law, D.C. MUN. REGS. tit. 5, §§ 3000.1, 3002.1(a), 3002.1(d), and 3002.3( a), because t his local law cr eates the s ame s tandards as those i n federal law. The Court declines to rule at this time on defendants’ liability since 2007. Accordingly, the Court will grant plaintiffs’ motion for summary judgment on liability as to plaintiffs’ claims under District of Columbia law. C. PLAINTIFFS’ CO NSENT MOTION F OR O RDER S CHEDULING O RAL
ARGUMENT O N PENDING S UMMARY J UDGMENT M OTIONS IS DENIED. Plaintiffs request an order scheduling oral argument on both summary-judgment motions. In support of this motion, plaintiffs argue that the issues argued in each of the briefs are not well organized and therefore are not clear to the Court. Because the Court is able to understand and rule on t he issues based on the written pleadings, the motion will be denied. See FED. R. CIV. P. 78(b). IV. CONCLUSION For t he reasons s tated h erein, the C ourt will grant i n part and deny i n p art Defendants’ Motion for Summary J udgment. The motion will be granted as to the First Claim of plaintiffs’ Amended C omplaint [ 46], i nsofar a s pl aintiff cannot br ing s uit unde r 42 U .S.C. § 1983 t o enforce the IDEA. The motion will be denied insofar as the First Claim of plaintiffs’ Amended Complaint w ill be c onstrued t o s tate a cause of a ction di rectly under t he IDEA, 20 U .S.C. §
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1415(i)(2)(A), rather than under 42 U .S.C. § 1983. The motion will be denied as to the Second, Third, Fourth, and Fifth Claims of the Amended Complaint.
The Court will grant Plaintiffs’ Motion for Partial Summary Judgment on Liability. The Court will deny Plaintiffs’ Consent Motion for Order Scheduling Oral Argument on Pending Summary Judgment Motions. The Court will not rule on declaratory relief at this time; rather, it will consider the issue of declaratory relief at a future date, at the same time as it considers injunctive and other relief. The Court will order the parties to meet and confer, and propose a further schedule for: submission of any f urther di spositive m otions on lia bility f or p laintiffs’ r emaining c laims; submission of motions relating to declaratory, injunctive, or other relief; submission of a list of issues r emaining f or tr ial; a nd time fra mes fo r pretrial a nd tr ial d ates f or th e r emaining c laims and relief. A separate Order consistent with this Memorandum Opinion shall issue this date. Signed by Royce C. Lamberth, Chief Judge, on August 10, 2010.
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 Case 1:05-cv-01437-RCL Document 389 Filed 11/08/13 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DL, et al., on behalf of themselves and others similarly situated,
Plaintiffs, v. THE DISTRICT OF COLUMBIA, et al.,
Defendants.

) ) ) ) ) ) ) Civil No. 05–1437 (RCL) ) ) ) ) )

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”).

Case 1:05-cv-01437-RCL Document 389 Filed 11/08/13 Page 2 of 33
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

Case 1:05-cv-01437-RCL Document 389 Filed 11/08/13 Page 3 of 33
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 de fendants ha ve not or w ill not i dentify, locate, e valuate or o ffer special
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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
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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).
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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.”
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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 i s cl ear t hat d efining t he cl ass b y r eference t o t he D istrict’s pattern a nd pr actice of failing t o pr ovide F APEs s peaks t oo br oadly b ecause i t constitutes only an allegation that the class members “have all suffered a violation of t he s ame pr ovision o f l aw,” w hich t he S upreme C ourt ha s now i nstructed i s 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 o f a policy o r p ractice th at a ffects all me mbers o f th e c lass in th e manner Wal–Mart requires, t he d istrict co urt's analysis is n ot f aithful to th e 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
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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 cl aims o r d efenses o f t he r epresentative p arties ar e t ypical o f t he 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.
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(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.
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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
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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
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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.
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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 c aused b y the District’s f ailure t o o ffer ad equate and t imely e ducation 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 t he certified c lass, consider two hypothetical students within t he class: o ne has a disability a nd would be el igible f or s pecial ed ucation b ut has n ever been i dentified a s be ing di sabled n or g one t hrough t he I EP pr ocess; a nother was i dentified a s 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 s o. Both scenarios involve violations of the IDEA, b ut 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.
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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
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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
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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.
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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
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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
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[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. 93452, 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
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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.
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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
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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
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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.”).
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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
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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
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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
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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
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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 m ay b e c ases in which t he controversy i nvolving t he na med pl aintiffs i s such that it becomes moot as to them before the district court can reasonably be expected t o r ule on a c ertification m otion. In s uch i nstances, w hether t he certification can be said to ‘relate back’ to the filing of the complaint may depend upon t he ci rcumstances of t he p articular cas e a nd es pecially t he r eality o f t he 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
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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 t he m erits o f the co ntroversy f or o ur review. T hat t he class was not certified u ntil a fter th e n amed plaintiffs’ claims ha d be come m oot 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 m otion for cl ass ce rtification b efore t he pr oposed r epresentative’s i ndividual 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,
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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 t he part of the movant, repeated failure to cure deficiencies by am endments pr eviously a llowed, undue p rejudice t o t he oppos ing p arty by virtue of a llowance of t he a mendment, f utility of a mendment, e tc.—the l eave 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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Case 1:05-cv-01437-RCL Document 389 Filed 11/08/13 Page 33 of 33 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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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________________

)

DL, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

)

______________________________________ )

Civil Case No. 05-1437 (RCL)

MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION AND BACKGROUND The named plaintiffs in this lawsuit—former preschool-age children in the District with various disabilities—allege that defendants have systemically failed to provide, or failed to timely provide, special education and related services to them and other children, in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and District of Columbia law. The plaintiffs have been divided into four subclasses and bring claims that correspond to distinct requirements of the IDEA. More specifically, plaintiffs’ claims relate to the District’s alleged failures to: (1) identify substantial numbers of children who are in need of special education and related services, (2) timely evaluate children for special education and related services, (3) timely issue eligibility determinations for special education and related services, and (4) provide smooth and effective transitions for children from Part C to Part B services.

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Given that this lawsuit was initiated in 2005, the Court has had ample opportunity to acknowledge the importance of the early intervention programs at stake in this litigation. Indeed, when executed properly, the early intervention mandated by the IDEA and at the core of plaintiffs’ complaint “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). These positive outcomes substantially advance the IDEA’s primary goal: “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 order to achieve its aim, the IDEA provides federal funding to states, including the District of Columbia, on the condition that they “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). More specifically, 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.” Reid, 401 F.3d at 519–20 (internal quotations omitted); 20 U.S.C. § 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)(1). The duties to identify, locate, and evaluate disabled children are collectively known as the “Child Find” obligation. 20 U.S.C. § 1412(a)(3)(A).
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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 personnel. See D.L. v. District of Columbia, 302 F.R.D. 1, 7 (D.D.C. 2013); 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(a)(3)(ii).
Dating back to 2005, the procedural history of this case is long and somewhat complex, centering in large part on issues relating to class certification. First, in August 2006 this Court certified a plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), defining it as:
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive. DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C. 2006); see also Mem. Order 3–4, ECF No. 389. With this group of children serving as the original plaintiff class, in 2010, the Court found that the District’s policies were inadequate to meet its obligations under the IDEA and that they violated section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of
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disability in programs receiving federal funding. See Mem. Op. 4–5, ECF No. 389 (citing DL v. District of Columbia, 845 F. Supp. 2d 1, 10–17 (D.D.C. 2011)). First, on August 10, 2010, the Court partially ruled for plaintiffs on summary judgment and found that, at least through 2007, the District violated the IDEA and District law by denying a FAPE to numerous preschool-age children with disabilities. DL v. District of Columbia, 730 F. Supp. 2d 84, 95 (D.D.C. 2010). The Court in 2010 also found that, at least through 2007, the District violated the Rehabilitation Act by demonstrating “bad faith or gross misjudgment” in failing to bring itself into compliance with the IDEA, even though it “knew that [its] actions were legally insufficient.” See Mem. Op. 4–5, ECF No. 389.
Following this summary judgment ruling, the Court held a two-day bench trial on the 6th and 7th of April 2011 regarding the District’s liability and plaintiffs’ remaining claims for declaratory and injunctive relief for the period from January 1, 2008, through the trial. After hearing the evidence at trial, the Court found that the District’s prior liability extended to April 6, 2011. To remedy these violations, the Court then issued a structural injunction, which included programmatic requirements and numerical goals that would remain in effect until the District demonstrated sustained compliance. Mem. Op. & Findings of Fact and Conclusions of Law ¶¶ 138–76.
After the trial but 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 Federal Rule of Civil Procedure 23(a)(2) (“FRCP 23(a)(2)”). Wal-Mart essentially found that to establish commonality under FRCP 23(a)(2), a class must present a common question that is “capable of classwide resolution—
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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.
Immediately following Wal-Mart, the defendants in this case sought to decertify the consolidated plaintiff class, arguing that it was too broadly defined to satisfy FRCP 23(a)(2)’s commonality requirement. Essentially, the defendants argued that the single and undivided class could not satisfy FRCP 23(a)(2) because it “bundled together 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). This Court rejected that argument, ruling that the plaintiff class satisfied FRCP 23’s commonality requirement because it presented the common question of whether or not each class member received a FAPE. The Court then ruled that the class members’ “differing allegations only represent the differing ways in which defendants have caused class members’ common injury,” that is, the “denial of their statutory right to a free appropriate public education.” Id. at 45.
After the Court denied defendants’ motion to decertify the class, the District filed an appeal to the D.C. Circuit and ultimately prevailed. The D.C. Circuit vacated the Court’s original order on class certification grounds—which as a result effectively and entirely vacated the Court’s various findings of liability. The Circuit remanded the case for further proceedings, holding:
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.
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DL v. District of Columbia, 713 F.3d 120, 126 (D.C. Cir. 2013).
On remand from the D.C. Circuit, this Court was to reconsider whether a “class, classes,
or subclasses may be certified,” id. at 129, and ultimately did so, certifying the following four
plaintiff subclasses in 2013:
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.
Mem. Op. 9, ECF No. 389.
After these subclasses were certified, plaintiffs submitted a second amended complaint,
alleging violations of the IDEA, Rehabilitation Act, and DC law specific to each subclass.
Following another round of discovery, the parties filed cross-motions for summary judgment in
2014. The Court partially granted plaintiffs’ motion for summary judgment, finding that the
District was liable for violating the IDEA and District law for the period up to April 6, 2011.
Specifically, these claims corresponded to the four subclasses and related to the District’s failure
to (1) identify substantial numbers of children who are in need of special education and related
services, (2) timely to evaluate children for special education and related services, (3) timely to
issue eligibility determinations for special education and related services, and (4) provide smooth 6

and effective transitions for children from Part C to Part B services. Mem. Op. 9–14, 16–20, ECF No. 444. The Court did not grant plaintiffs summary judgment on their Rehabilitation Act claims for that same period, concluding that based on the record, it could not determine “whether the District’s actions reached ‘bad faith or gross misjudgment’ as to each subclass.” Id. at 15, 20.
In addition to partially ruling for plaintiffs, the Court also partially ruled for defendants on summary judgment. Specifically, the Court ruled for defendants on (1) plaintiffs’ IDEA and District law claims related to the failure timely to evaluate children for special education and related services for the period from April 6, 2011 to the present, and (2) all of plaintiffs’ Rehabilitation Act claims for the period from March 22, 2010 to the present. Id. at 36–37, 39–42; see also Order, ECF No. 491.
The remainder of plaintiffs’ claims went to trial. These claims fell into two categories and relate to two distinct time periods. First, plaintiffs allege that the District has violated the IDEA and District law from April 6, 2011 through the present by failing to adequately identify preschoolage disabled children for the purpose of offering them special education and related services (subclass 1); failing to timely issue eligibility determinations for special education and related services for preschool-age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4).
Second, plaintiffs claim that the District violated the Rehabilitation Act for the period up to March 22, 2010 by failing adequately to identify preschool-age disabled children for the purposes of offering them special education and related services (subclass 1); failing timely to evaluate preschool-age children for special education and related services (subclass 2); failing timely to issue eligibility determinations for special education and related services for preschool-
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age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4); and that the District acted in bad faith or gross misjudgment as to each subclass.
Trial was held on the 12th, 13th, and 16th of November 2015. Based on all of the evidence and argument presented, the Court makes the following findings of fact and conclusions of law, and will, consistent with these findings, enter judgment in favor of plaintiffs. In short, the District has improved, but started at such a low base when this litigation began, that it is still failing to comply with federal and District law. II. FINDINGS OF FACT
A. CREDIBILITY OF PLAINTIFFS’ WITNESSES 1. Dr. Carl J. Dunst
1. Plaintiffs retained Dr. Carl Dunst as an expert to study and assess the District’s compliance with its Child Find-related obligations. Direct Test. of Dr. Carl J. Dunst ¶ 7, Oct. 22, 2015, ECF No. 475-1 (“2015 Dunst Direct”).1
2. Dr. Dunst holds a Bachelor’s degree in education from Temple University, a Master’s degree in Early Childhood Special Education from the George Washington University, and a Doctorate in Developmental Psychology from the George Peabody College at Vanderbilt University. Id. at ¶ 1.
1 The Court cites the redacted version of Dr. Dunst’s testimony, which was filed publicly. In all cases in which a document was both filed publicly with protected information redacted pursuant to the Court’s Protective Order, see ECF No. 407, and under seal without redactions (as with Dr. Dunst’s written direct testimony), the Court cites to the public version, but relied on the sealed information as necessary.
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3. Dr. Dunst has worked as an early intervention practitioner, has directed an IDEA Part C early intervention and a Part B preschool special education program, and has taught numerous courses on infant and preschool development, assessment, and intervention practices. Id. at ¶ 2.
4. From 2003 to 2010, Dr. Dunst was the Principal Investigator at a research and training center funded by the U.S. Department of Education, Office of Special Education Programs (“OSEP”) called the Tracking, Referral, and Assessment Center for Excellence (“TRACE”). Id. at ¶ 4. TRACE investigated Child Find-related practices in IDEA Part C early intervention and IDEA Part B preschool special education programs in all 50 states, the District, and other jurisdictions, and researched and developed evidence-based practices for improving Child Find-related activities. Id. He has also been the Principal Investigator or Co-Principal Investigator of other OSEP-funded research and training projects that focus on early childhood intervention practices. Id. at ¶ 5.
5. Dr. Dunst is currently a Research Scientist and Director at the Orelena Hawks Puckett Institute in Asheville and Morganton, North Carolina, where he conducts research, evaluation, intervention, and training in Part C, Part B, early Head Start, Even Start, childcare and preschool practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at ¶ 3.
6. Due to his extensive experience, Dr. Dunst is a recognized expert in infant and early childhood assessment practices, family systems intervention practices, infant and early childhood intervention practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at ¶ 6; see also E-mail from Jerri Johnston-Stewart, OSSE, to Alison Whyte, May 27, 2010, Pls.’ Ex. 125, at 1 (“Dr. Carl Dunst is one of the leading authorities in [the] United
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States on early childhood/early childhood special education and is highly regarded among OSEP and its technical assistance providers.”).
7. Dr. Dunst has received a number of awards from professional organizations for his research and practice. Id. ¶ 6. He has an extensive list of publications about Child Find-related policies and practices. Curriculum Vitae of Carl J. Dunst, Pls.’ Ex. 268, at 22–100.
8. During trial and in post-trial filings, the District attacked the credibility of Dr. Dunst on the basis that he had never logged into or received relevant training on the District’s database, called Special Education Database System, or “SEDS.” See Trial Tr., Nov. 12, 2015, 102:20–25, 108:7–13; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 12, ECF No. 513. The Court has previously considered and rejected this argument, finding that Dr. Dunst is qualified to analyze the District’s Child Find-related obligations and assess its compliance. See Mem. Op. 26 n.1, ECF No. 444 (“[I]t is not clear why Dr. Dunst needed to understand how the database operates in order to analyze the data pulled from it.”).
9. For these reasons, following the previous trial, the Court found that Dr. Dunst is a qualified expert in analyzing the District’s Child Find-related obligations for preschool-age children. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 8, ECF No. 294. The Court also found that Dr. Dunst “testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how his conclusions were based on both his research and personal experience in the field.” Id. at ¶ 9. Based on the paragraphs above, the Court makes the same findings for the current period.
2. Dr. Leonard Cupingood 10. Plaintiffs retained Dr. Leonard Cupingood as an expert to study and provide statistical analysis of the District’s data related to its compliance with IDEA requirements related
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to special education services. 2015 Cupingood Direct Test. ¶ 22, Oct. 22, 2015, ECF No. 475-2 (“2015 Cupingood Direct”).
11. Dr. Cupingood holds a Bachelor’s degree in Mathematics from Rutgers University and a Master’s and a Doctorate in Statistics from Temple University. Id. at ¶ 1.
12. Dr. Cupingood is currently a Director of BLDS, LLC, a position in which he develops and applies statistical models and analyses for a wide variety of settings and industries. Id. at ¶ 2. He has extensive experience conducting statistical analysis in a variety of litigation matters, including employment discrimination cases and audits of insurance companies regarding claims processing. Id. at ¶¶ 2–3. He has provided deposition and trial testimony as a database expert and as a statistician. Id. at ¶¶ 9–10.
13. Dr. Cupingood is a member of the American Statistical Association and has published several statistics-based articles. Id. at ¶ 8. Curriculum Vitae of Leonard A. Cupingood, Pls.’ Ex. 269, at 3.
14. For these reasons, following the previous trial, the Court found that Dr. Cupingood is a qualified expert in statistics. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 14, ECF No. 294. The Court also found that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s Child Find-related obligations, including the timeliness of the District in determining the eligibility for special education and related services of children ages three through five, and the number of preschool-age children who were referred each year for special education services Id. at ¶¶ 14–15.
15. In addition to statistics, Dr. Cupingood is an expert in computer programming and databases. 2015 Cupingood Direct ¶ 5. He started working as a computer programmer in 1968 for Leeds and Northrup Company. Id. There, he developed computer programs to monitor power
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systems and was the lead programmer responsible for developing a system to monitor power to Disney World’s monorail that ran to its rides before the amusement park opened in 1971. Id. In 1972, he began working for Ketron, Inc., a consulting firm that obtained government contracts to analyze the effectiveness of social programs. Id. at ¶ 6. On that project, he developed computer programs to analyze survey and census data, constructed databases to organize the data, cleaned the data for inconsistencies, and then analyzed the cleaned data. Id.
16. Later, Dr. Cupingood began working on litigation-related data analysis. Id. at ¶ 7. For example, in employment cases, he reviewed employer databases for inconsistencies (e.g., multiple Social Security Numbers or dates of birth corresponding with a single name), cleaned the data, and then analyzed the cleaned data. Id. Each employer had its own database with different data organization techniques and variables. Id. In some cases, if the employer did not use an electronic database, he had to build a database from the company’s paper records before he could analyze the data. Id. Over the course of 40 years, he worked as a database manager—requiring computer programming, database construction, and cleaning skills—on approximately 300 cases. Id.
17. Since he obtained his doctorate in 1985, he has offered testimony as a statistical expert in approximately 40 cases. Id. at ¶ 9. Although the primary focus of his testimony in those cases has been statistical analysis, he would not have been able to perform that analysis if he had not initially performed the programming and required data cleaning. Id. He does not recall a single case in which he provided testimony as a statistical expert in which he did not also perform or supervise all of the necessary programming and data cleaning. Id. Moreover, in a small number of cases, Dr. Cupingood has testified as a database expert only. Id. at ¶ 10.
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18. In the 1980’s, Dr. Cupingood was appointed by a Special Master in the United States District Court of the Eastern District of Pennsylvania as an automation consultant. Id. at ¶ 11. His responsibility was to supervise computer programmers to ensure that the data system, which they created to monitor the referral and dispatching process of a union operating under the court’s supervision, collected the necessary data and produced the required output. Id. Thus, over 20 years ago, Dr. Cupingood was recognized as an expert in the field of computer programming and databases.
19. Dr. Cupingood has substantial additional experience in computer programming and statistics. Cupingood Supplemental Direct Test., Nov. 2, 2015, ECF No. 489-1. Similar to Dr. Dunst, at trial and in post-trial filings, the District attacked Dr. Cupingood’s credibility because he had never logged into SEDS or received training on the database. Trial Tr., Nov. 12, 2015, 30:20– 31:9, 44:25–45:3; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 4, ECF No. 513. The Court previously rejected these arguments and will do the same today. Mem. Op. 30, ECF No. 444 (“Dr. Cupingood does not need to have any particular understanding of special education policies or databases to assess the data provided to him. Furthermore, it is entirely unclear to the Court why Dr. Cupingood needed to access the database himself rather than rely on the data provided by the District.”).
20. Based on findings paragraphs 11–19, the Court again finds that Dr. Cupingood is a qualified expert in statistics, and also finds that he is an expert in computer programming and databases. The Court also finds that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s data related to the number of preschool-age children who are enrolled, the number of preschool-age children who timely received an initial eligibility determination for special education and related services, the number of children who received a
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smooth and effective transition from Part C to Part B services, and the District’s special education databases.
3. Lauren Seffel 21. Plaintiffs moved for the admission under Rule 1006 of the Federal Rules of Evidence of a summary of facts related to individual children in the District who were referred for special education services, which was compiled by plaintiffs’ counsel. Plaintiffs’ Factual Summary, Pls.’ Ex. 270, ECF No. 456-1 (sealed). Over defendants’ objection, the Court granted that motion, see generally Mem. Op., ECF No. 478, and required the attorney that compiled the summary to appear for a deposition by the District’s counsel and to introduce the summary at trial and be subject to cross-examination. Id. at 16. Lauren Seffel, an attorney for plaintiffs, did so. Ms. Seffel provided credible testimony regarding the creation of plaintiffs’ Factual Summary. B. CREDIBILITY OF DEFENDANTS’ WITNESSES 22. The District offered the testimony of 13 fact witnesses, 12 of whom are District of Columbia’s Office of the State Superintendent of Education (“OSSE”) or District of Columbia Public Schools (“DCPS”) employees. Those witnesses testified regarding positive improvements in the District’s policies, procedures, and practices. These witnesses did not directly rebut or discuss the statistical conclusions of plaintiffs’ expert witnesses regarding the effectiveness of the District’s policies, procedures, and practices, nor did any of the District’s witnesses challenge the findings of plaintiffs’ Factual Summary. 23. Dr. Amy Maisterra is the Assistant Superintendent of Elementary, Secondary, and Specialized Education at OSSE. Direct Examination of Dr. Amy Maisterra ¶ 1, Oct. 22, 2015, ECF No. 477-1. She holds a doctorate in educational leadership from the University of Pennsylvania and a master’s degree in clinical social work from the Smith College School for
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Social Work. Her background includes professional experience in both educational and behavioral health. Id.
24. Kerda DeHaan is a Special Assistant for IDEA Part C at OSSE; she has spent approximately six years with the agency, and her work focuses on the District’s Part C program, also known at the Strong Start DC Early Intervention Program (“DC EIP”). Direct Examination of Kerda DeHaan ¶ 1, Oct. 20, 2015, ECF No 477-2.
25. Dr. Nathaniel Beers is the Chief Operating Officer (“COO”) for DCPS. Direct Examination of Dr. Nathaniel Beers ¶ 1, Oct. 21, 2015, ECF No. 477-3. He is also a developmental and behavioral pediatrician, and his background includes serving as the Chief of DCPS’s Office of Specialized Instruction, Executive Director of the Early Stages Center, and Deputy Director for Community Health Administration with the District’s Department of Health. Id. Dr. Beers was previously employed by Children’s National Medical Center in a variety of capacities, where, among other tasks, he oversaw the largest primary care clinic in the District. Id. He is a past president of the District of Columbia Chapter of the American Academy of Pediatrics and a current member of the Council of School Health for the National American Academy of Pediatrics. Id.
26. Dr. Travis Wright is the Deputy Chief for Early Childhood Education at DCPS. He holds a doctorate degree in human development and psychology from Harvard University. Direct Examination of Dr. Travis Wright ¶ 1, Oct. 21, 2015, ECF No. 477-4. His areas of expertise focus on teaching in highly stressed communities, teaching children who have experienced trauma, and early childhood education. Id. Dr. Wright has been a faculty member in education at George Washington University and the University of Wisconsin-Madison. Id. Dr. Wright has served as the Research in Review Editor for Young Children, a journal published by the National Association for the Education of Young Children, and he was a Board Member of the Early
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Childhood Education Special Interest Group of the American Educational Research Association. Id.
27. Donna Anthony is the Assistant Superintendent for Health and Wellness at OSSE. Direct Examination of Donna Anthony ¶ 1, Oct. 22, 2015, ECF No. 477-5. Through October 16, 2015, she worked at DCPS, primarily serving as Chief of Staff and Interim Chief of the Office of Specialized Instruction. Id. She holds a master’s degree in public health from George Washington University. Id.
28. Brian Massey is the Child Find Field Coordinator for Ward 6, at the Early Stages Center. Direct Examination of Brian Massey ¶ 1, Oct. 22, 2015, ECF No. 477-6. Previously, Mr. Massey served as the Child Find Field Coordinator for Medical Constituency Outreach at Early Stages, and he has worked as a classroom educator at the Capital City Public Charter School in Washington, D.C. Id.
29. Sean Compagnucci is the Executive Director of the Early Stages Center. Direct Examination of Sean Compagnucci ¶ 1, Oct. 22, 2015, ECF No. 477-7 (“Compagnucci Direct”). Mr. Compagnucci joined Early Stages as a Child Find Field Coordinator shortly after the organization was created in 2009; he has also held the positions of Child Find Program Manager and Deputy Director. Id.
30. Carla Watson is the Deputy Chief of Compliance and Policy for the Office of the Chief Operating Officer at DCPS. Direct Examination of Carla Watson ¶ 1, Oct. 21, 2015, ECF No. 477-8. She has worked as a child advocate, providing legal services in New York, and as a guardian ad litem and education advocate for students in foster care in the District. Id. Ms. Watson joined DCPS in February 2008, as a Senior Policy Associate on the Special Education Reform Team and has subsequently worked on and overseen compliance and policy. Id.
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31. Jessica Roche is the Director of the Policy and Legal Strategy Team within the Compliance and Policy Division at DCPS. Direct Examination of Jessica Roche ¶ 1, Oct. 22, 2015, ECF No. 477-9. She began working for DCPS as a Program Coordinator on the Least Restrictive Environment Support and Policy Team in August 2011, and has been promoted several times to her current position. Id. Ms. Roche holds a B.S.Ed. in Inclusive Elementary and Special Education and is licensed to practice law in both New Hampshire and Massachusetts. Id. She works under Ms. Watson, and her work focuses primarily on Early Stages compliance and monitoring. Id.
32. Dr. Maxine Freund is the Associate Dean for Research and External Relations at the George Washington University’s Graduate School of Education and Human Development. Direct Examination of Dr. Maxine Freund ¶ 1, Oct. 22, 2015, ECF No. 477-14 (“2015 Freund Direct”). Dr. Freund is also a tenured professor in the University’s Department of Special Education and Disabilities Studies and a resident of the District. Id.
33. During her thirty-year career as a professor, Dr. Freund has designed and implemented doctoral leadership programs and master’s degree programs that, among other things, prepared infant and early childhood specialists for early intervention work with atypical infants, toddlers, and preschoolers. Id. Many of these programs were funded by the United States Department of Education through competitive grant programs and by national and local foundations interested special education for at-risk and special-needs populations. Id.
34. Dr. Freund has authored extensive publications and presentations in the special education and early childhood education fields. Defs.’ Ex. 55, at 5–12. As an Associate Dean of the George Washington University, she also directs doctoral candidates’ dissertations on special education and early childhood education and has developed a specific focus on the special education eligibility determination process for preschool-age children. Id.
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35. Based on paragraphs 32–34, the Court concludes that Dr. Freund is qualified as an expert to analyze the District’s Child Find obligations as they relate to preschool children. The Court also finds that Dr. Freund testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how her conclusions were based on her research, personal experience in the field, and in depth examination of the District’s preschool Child Find system.
36. Like the District’s fact witnesses, however, Dr. Freund was largely silent as to the statistical conclusions of plaintiffs’ expert witness, which plaintiffs offered to highlight the ineffectiveness of the District’s policies, procedures, and practices.
C. BACKGROUND 37. Part B of IDEA concerns special education and related services for three-to-fiveyear-old children. 20 U.S.C. §§ 1411–1419 (“Assistance for Education of All Children with Disabilities”); § 1412(a)(1)(a) (requiring states to have “in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive”). 38. Early Stages is a DCPS center, which is the primary facility for providing Part B special education screenings, evaluations, and eligibility determinations for three-to-five-year-old children in the District. See Compagnucci Direct ¶ 2; see generally Expert Report of Dr. Maxine Freund, Sept. 14, 2009, ECF No. 172-2 (“2009 Freund Report”). Early Stages is also responsible for outreach to find children in need of special education and related services. Compagnucci Direct ¶ 5. 39. If a parent, teacher, or any other person with knowledge of a child in the District has a concern that a child requires special education services, they can contact Early Stages. See Compagnucci Dep. 6:19–7:13, June 2, 2014, Pls.’ Ex. 15 (“Compagnucci Dep.”); Early Stages
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Family Care Manual, Feb. 8, 2011, Pls.’ Ex. 72, at DL2014 177 (“Family Care Manual”). Early Stages is required to screen the children, which it does through a questionnaire. See Compagnucci Direct ¶ 24; Compagnucci Dep. 8:11–9:9. Early Stages then assesses the child to determine the child’s needs. Compagnucci Direct ¶ 27.
40. Once those assessments are performed (together referred to as the evaluation), see Compagnucci Dep. 26:10–13, Early Stages determines whether the child is eligible for special education and related services. See Compagnucci Direct ¶ 29. The District must complete the evaluation and provide an eligibility determination within 120 days of the child’s referral. See infra paras. 254–57, 262. If the child is eligible, then Early Stages must prepare an Individualized Education Plan (“IEP”) and identify a location (i.e., a school) where the services will be provided. Compagnucci Direct ¶ 29; Compagnucci Dep. 13:7–14:4.
41. Services include (1) special education and (2) related services. Special education is “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” 20 U.S.C. § 1401(29). Related services are “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . . .” 20 U.S.C. § 1401(26).
42. At the time of the last trial, Dr. Nathaniel Beers was the Executive Director of Early Stages. Test. of Nathaniel Beers ¶ 1, Mar. 16, 2011, ECF No. 210-1 (“2011 Beers Direct”). Sean Compagnucci is now the Executive Director. Compagnucci Direct ¶ 1.
43. Part C refers to the part of IDEA that relates to special education services for children younger than three years old. 20 U.S.C. §§ 1431–1444 (“Infants and Toddlers with Disabilities”); § 1432(5) (defining “infant or toddler with a disability”). Children in Part C receive an Individual Family Service Plan (“IFSP”), rather than an IEP. See Family Care Manual, Pls.’
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Ex. 72, at DL2014 194. Part C services are the responsibility of a District program called Strong Start, not Early Stages. Direct Examination of Kerda Dehaan ¶ 1.
44. The District has summarized the main differences between Part B and Part C services:
Early intervention [Part C] services are provided within a natural environment for the child [e.g., the home] and services are family centered. They can include nursing and medical care in some cases. . . . Special education [Part B] services are usually provided in a public school, Head Start center, or inclusive community early care and education center. [Part B] [o]nly provides nursing or medical care services [i.e., related services] that are considered necessary for the child to access educational programs. Family Care Manual, Pls.’ Ex. 72, at DL2014 194. 45. Pursuant to the IDEA, children must receive a “smooth and effective” transition from Part C to Part B services by the child’s third birthday. 20 U.S.C. § 1412(a)(9). That requires Part B special education and related services to be provided to transitioning children by their third birthdays. Id. (“By the third birthday of such a child, an individualized education program . . . has been developed and is being implemented for the child”); Mem. Op. 39, ECF No. 444 (“All services must commence for a transition to be smooth and effective.” (emphasis in original)).2 46. On April 15, 2014, the District issued Policies and Procedures for the Extended IFSP Option for Children age three to four. See Pls.’ Ex. 52. This policy permits parents to choose to have their child receive their Part C services, with an educational component, until the beginning of the school year after he or she turns four years old. Id. at 2. 47. The District Office of the State Superintendent of Education (“OSSE”) is the State Education Agency (“SEA”) for the District “serves as the lead and local agency for Part C,” and
2 The Court granted the District’s motion for reconsideration of this statement insofar as “the appropriate standard for implementation of an IEP shall be determined post-trial.” Order, ECF No. 480.
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“fulfills state-level obligations for Part B and Part C of IDEA.” Direct Test. of Amy Maisterra ¶ 3, Mar. 16, 2011, ECF No. 210-3 (“2011 Maisterra Direct”). “OSSE is responsible for monitoring the performance of the District’s Local Education Agencies (‘LEAs’), of which [DCPS] is the largest.” Id; see also Direct Examination of Amy Maisterra ¶ 5, Oct. 22, 2015, ECF No. 477-1 (“2015 Maisterra Direct”). OSSE assumed these roles from DCPS after OSSE was created in 2007. 2009 Freund Report 4.
48. OSSE obtains federal IDEA Part B funds from OSEP and allocates those funds among District LEAs. 2011 Maisterra Direct ¶¶ 8, 21. Accordingly, OSEP monitors OSSE’s compliance—and OSSE monitors LEAs compliance—with IDEA Part B requirements. Id.
49. Dr. Amy Maisterra is OSSE’s Assistant Superintendent of Elementary, Secondary, and Specialized Education. 2015 Maisterra Direct ¶ 1. She was previously OSSE’s Assistant Superintendent for the Division of Specialized Education. Maisterra Dep. 6:11–14, June 2, 2014, Pls.’ Ex. 14. OSSE’s Division of Specialized Education “is responsible for overseeing the development and promulgation of state policy governing special education; monitoring LEAs for compliance with IDEA as well as other federal and local regulations and court-ordered consent decrees; allocation and administration of IDEA grant funds to LEAs and other public agencies; provision of training and technical assistance to LEAs; and investigation and resolution of state complaints relating to special education.” OSSE website, Pls.’ Ex. 58.
50. DCPS keeps documents and data related to children who receive referrals to Early Stages in the Early Stages database, part of which is then uploaded into a different database, called the SEDS. Compagnucci Dep. 20:14–21:2, 21:17–22:11, 32:13–33:2, 43:3–6, 43:15–44:16, 45:9– 48:10, Aug. 12, 2014, Pls.’ Ex. 21. OSSE requires documents and data related to children who
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receive referrals to be uploaded into SEDS. 2011 Maisterra Direct ¶ 7; Maisterra Dep. 336:18– 337:3, July 2, 2014, Pls.’ Ex. 18.
51. OSSE uses SEDS to prepare statistics for this case and for reporting to OSEP. Direct Examination of Anupama Proddutur ¶ 2, ECF No. 477-12 (“Proddutur Direct”); Proddutur Dep., July 2, 2014, Pls.’ Ex. 18; Maisterra Dep. 336:18–337:3, July 2, 2014, Pls.’ Ex. 18. These statistics include data such as the number of children who have IEPs at a given point in time, the percentage of children who receive an eligibility determination within 120 days over a given period of time, and the percentage of children who receive a smooth and effective transition from Part C to Part B services over a given period of time. See Proddutur Direct ¶ 2. To calculate the percentage of children who receive a smooth and effective transition from Part C to Part B services, in addition to SEDS, OSSE uses data from the Early Stages database and the Part C database (a separate database that tracks data related to children receiving Part C services). See Proddutur Dep. 164:17–165:11, July 2, 2014, Pls.’ Ex. 18; Trial Tr., DeHaan Test., Nov. 13, 2015, 17:21–18:8.
52. Plaintiffs contend that the District’s policies, procedures, and practices are deficient, as evidenced in large part by the District’s own data. Essentially, they allege that the District’s statistics—which on their face help to demonstrate the District’s compliance—are prepared in a way that makes it appear that the District’s policies, procedures, and practices are more effective than they actually are. Indeed, the bulk of the plaintiffs’ evidence examines the data that underpins the District’s contention that it is and has been serving over 8.5% of the preschool-age population, performing timely eligibility determinations for over 95% of referred children, and smoothly and effectively transitioning over 95% of children into Part B. The plaintiffs argue that these numbers are inflated because the District applies incorrect assumptions
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and in some cases misreports outcomes. The District counters plaintiffs’ arguments primarily by focusing on the enactment and design of its policies and arguing that its reporting practices were “developed around the federal Department’s guidance.” Defs.’ Proposed Findings of Facts and Conclusions of Law ¶ 65, and produce accurate and valid results “across staff and across reports.” Id. at 64.
In other words, the District fails to challenge plaintiffs’ evidence on its own terms. As the defendants point out, the plaintiffs litigation strategy has shifted from the 2011 trial to the more recent trial conducted in November 2015. See, e.g., Trail Tr., Nov. 12, 2015, 19:8–10 (District’s counsel: “[T]he statistics that plaintiffs offer today are not the statistics that the Court credited in 2011. It’s not apples to apples.”). Indeed, the plaintiffs’ arguments and evidence have evolved to focus on the outcomes and effectiveness of the District’s policies and the accuracy of its statistical conclusions in addition to the design of the polices themselves. See, e.g., id. at 20:6–8 (District’s counsel: “This time, unlike in 2011, plaintiffs will not critique any major or substantive aspect of the District’s preschool Part B program.”).
But as plaintiffs’ arguments have developed, the defendants for the most part presented evidence as though plaintiffs’ litigation strategy has remained constant since 2011. The District claims its statistics show its policies are effective and are implemented a way that complies with the IDEA’s requirements. In presenting this evidence, however, the District does very little to counter the plaintiffs’ core theory and substantial testimony that the District’s self-reported data significantly inflate the District’s actual rates of compliance. Even assuming the District “has always been clear with OSEP on how the District selects data points, collects data, and calculates statistics,” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 65 (quoting 2015 Maisterra
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Direct ¶ 15), it does not follow that the District’s assumptions are well founded and that its reporting is accurate.
Indeed, plaintiffs have offered ample evidence that speaks to the substance of the District’s statistics, while the District has responded primarily with conclusory assertions that its statistics are “accurate[e] and valid[] across staff and across reports,” id. at ¶ 64, and with evidence showing it has made noticeable improvements since 2011. In the Court’s view, however, substantial progress and good faith efforts are insufficient to satisfy the IDEA’s affirmative duties. For the District to comply with the IDEA and District law, its policies and procedures must produce the proper results—something that plaintiffs’ evidence demonstrates they are currently failing to do.
53. While the District’s policies, procedures, and practices are important, the outcomes of those policies, procedures, and practices are even more critical. The Court made this clear when it adjudicated the motions for summary judgment. Mem. Op. 18–19, ECF No. 444 (“The question . . . is whether the District’s policies were successfully implemented, thus ensuring that the District met the required conditions.”); id. at 27 (“Indeed, evidence that the District is failing to identify, evaluate, determine eligibility for, and transition large numbers of students may necessarily reflect a failure in policies and procedures.”); id. at 34 (“While the District thoroughly details the policies it has enacted since 2010, the Court must also consider the effectiveness of these policies in achieving compliance with IDEA and D.C. law.”); id. at 38 (“[P]laintiffs’ statistics tend to show that the District’s policies—whatever they may be—have failed to ensure that eligibility determinations are timely.”) (emphases in original).
54. The Court also previously found, see Mem. Op. ¶¶ 60–63, ECF No. 294, and finds again, that the District has improved, and that its improvement, including reforms to the District’s Child Find-related policies, procedures, and practices, and the organization of the Early Stages
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Center, occurred during and because of this lawsuit. See accompanying Mem. Op. issued on this date, at 15–18.
55. Despite the District’s extensive testimony about the strengths of its program, see, e.g., Trial Tr., Maisterra Test., Nov. 13, 2015, 15:9–10, its deficiencies have continued, although to a lesser degree. The plaintiffs have provided evidence that corresponds specifically to the alleged harms suffered by each subclass, evidence which the District has not successfully rebutted. This evidence tends to demonstrate that despite the District’s efforts, it is failing to identify preschool-age disabled children for the purposes of offering them special education and related services, failing to timely determine the eligibility of preschool-age children for special education and related services, and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday.
D. CHILDREN RECEIVING SPECIAL EDUCATION SERVICES 56. As described below, the District should be providing special education and related services to at least 8.5% of its preschool-age population. See infra paras. 59–82. The District contends that it served between 8.40% and 9.89% of that population monthly since January 2013, when it began producing monthly data. See District of Columbia Monthly Enrollment Reports, Defs.’ Ex. 53, at 5–6 (displaying a high in Mar. 2013 of 9.89%), 45–46 (displaying a low in Nov. 2014 of 8.40%); see also Pls.’ Ex. 285, at 1; Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 101. These numbers, however, are not accurate, in large part because they are calculated using an outdated census figure. See infra paras. 86–95. 57. When calculating its data appropriately (e.g., using an annual population estimate rather than the 2010 census figure), the District served a high of 8.04% of its preschool-age
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population in March 2013, a figure which fell nearly monthly to a low of 6.27% in November 2014. See infra para. 84. In other words, the District failed to provide special education and related services to between 98 and 515 children, varying monthly, since 2013. Id. The District contends that it is screening over half of its preschool-age population. See Trial Tr., Beers Test., Nov. 13, 2015, 21:13–18; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 77–78 (describing the safeguards and procedures the city has in place to ensure that families are able to “receive developmental screenings”). Despite these efforts, at any given time, hundreds of children are still not receiving needed special education and related services.
58. Moreover, the District reported to OSEP that it provided special education and related services to 1,429 three-to-five-year-old children for 2014-2015, which amounts to only 6.19% of the District’s preschool population. See infra para. 96. That is a decline of approximately 19% since 2011 and is essentially equal to the average percentage of children served nationwide. See supra paras. 97–98. Based on its risk factors, the District should be serving substantially more children than the national average. The District is far from meeting the 8.5% benchmark.
1. The District Should Be Serving at Least 8.5% of Its Preschool-age Population with Special Education and Related Services
59. OSEP tracks the percentage of children who receive special education and related services in each state and similar jurisdictions. 2015 Dunst Direct ¶ 44. The District has historically provided special education and related services to the lowest or near the lowest percentage of preschool-age children in the United States. 2015 Dunst Direct ¶¶ 45–46; see infra paras. 191–99; see also Mem. Op. ¶¶ 25–28, ECF No. 294. That is true despite the fact that, based on risk factors in the District, and the fact that it is the only entirely urban jurisdiction, it has the largest percentage of children who may be eligible for special education services. 2015 Dunst Direct ¶¶ 36–43; see also Mem. Op. ¶¶ 29–30, ECF No. 294. Otherwise said, the District has had
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the highest need for special education services, but has historically provided those services to the fewest children. 2015 Dunst Direct ¶ 43.
60. In 2011, the Court found that the District violated federal and District law by failing to provide Part B services to a substantial number of three-to-five-year-old children. Mem. Op. ¶¶ 111–13, ECF No. 294. The Court also found that, “on the low end, the District should expect to be serving 8.5% of its preschool-age population with Part B services.” Id. at ¶ 30. Accordingly, the Court ordered the District to “ensure that at least 8.5 percent of children between the ages of three and five years old, inclusive . . . who reside in or are wards of the District of Columbia, are enrolled in special education and related services under Part B of IDEA.” Id. at ¶ 147.
61. At the recent trial, Dr. Dunst again explained why the District should currently be serving at least 8.5% of its preschool-age population with Part B services, a figure that is in line with the Court’s benchmark set in 2011. 2015 Dunst Direct ¶¶ 29–40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25–119:7, 128:6–19. Dr. Dunst based this figure upon evidence related to risk factors in the District, comparisons to other jurisdictions, and incidences of developmental delays nationwide. 2015 Dunst Direct ¶¶ 29–40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25–119:7, 128:6–19. He explained that the relevant risk factors in the District are high, meaning that children in the District face higher risks of experiencing developmental disabilities than the national average. 2015 Dunst Direct ¶¶ 41–42. These greater risk factors contribute to the relatively high target 8.5% enrollment rate, which is a few percentage points above the national enrollment figure. Id. And importantly, these risk factors have not materially changed since 2011, when the Court first found that the 8.5% enrollment benchmark was appropriate. Id.; see also U.S. Census Bureau, Small Area Income and Poverty Estimate, Under Age 5 in Poverty, Pls.’ Ex. 193, at 4 (2007, 26.1% in poverty; 2013, 26.8% in poverty); see generally Data Related to Risk Factors, Pls.’ Ex.
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287. Looking to the specific risk factors, as of the November 2015 trial, 55% of the number of children in the District live in single parent households, see Pls.’ Ex. 287, at 4126, 15% live in non-English speaking households, id. at 4130, 14% live in households where parents have less than a high school education, id. at 4131, 23% of households receive assistance through the Supplemental Nutrition Assistance Program (the highest in the country), id. at 4132, 33% live in concentrated poverty areas, id. at 4134, and 22% of families experience severe housing problems, id. at 4135.
62. Dr. Dunst’s conclusion that the District should be serving 8.5% of its preschool population is also entirely consistent with the District’s documents and Dr. Beers’ testimony at the last trial, although at that time Dr. Beers suggested that the benchmark should be even higher. The Early Stages Family Care Manual states: “Given DC’s risk factors for developmental delays, including low birth weight, poverty, and HIV/AIDS infection, DC’s projected identification rate is about 12%.” See Pls.’ Ex. 72, at DL 204. When asked at his 2011 deposition about how the 12% figure was derived, Dr. Beers testified that it was an estimation based upon the identification rates of other urban jurisdictions, namely Atlanta and Detroit, which “range[d] between 10 to 12 percent, but [the District] picked 12 percent as an aggressive target that [it] wanted people to strive towards.” Beers Dep. 61:12–62:11, Mar. 1, 2011, Pls.’ Ex. 12. At the recent trial, Dr. Beers explained that he initially looked at a range of 10-12%, and then looked at a range of 8-12%:
I believe in my testimony here when we talked in 2011, we talked about a range from 10 to 12 percent. We were still at that point moving rapidly and we had gone from about 2 percent of the eligible kids to about 4 percent of eligible ki[d]s at the time we appeared in court at that time. So at that point we had also a better estimation of what we were going to get when we were screening kids and started talking about a range of 8 to 12 percent as where we thought was a reasonable place for us to get over time, recognizing that I had no data when I arrived in 2009. Trial Tr., Nov. 13, 2015, 20:22–21:6; see also Mem. Op. ¶ 30, ECF No. 294.
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63. Whether it is Dr. Dunst talking about 8.5%, or Dr. Beers talking about 10 to 12% (or 8 to 12%), both individuals were addressing the percentage of children who would be served. Dr. Dunst testified that the District “should expect to be serving 8.5 percent of its preschool-age population with Part B services.” 2015 Dunst Direct ¶ 40. Although other language in his direct examination made it appear as though he meant this to relate just to children who are found eligible for Part B services, he explained that he meant it as an estimate of “eligibility, enrollment, and provision of services.” Trial Tr., Dunst Test., Nov. 12, 2015, 130:15–16. Indeed, he provided extensive testimony comparing the number of children receiving special education and related services in the District with the 8.5% benchmark. 2015 Dunst Direct ¶¶ 43–88. Dr. Beers similarly explained, at the last trial, that the District’s “identification rate” relates to children receiving services. See Trial Tr., Apr. 6, 2011, Pls.’ Ex. 6, 175:23–176:18.
64. The 8.5% benchmark is also consistent with portions of Dr. Freund’s previous testimony. See Freund Dep. 57:3–7, Oct. 1, 2014, Pls.’ Ex. 22 (“[I]t certainly seems to be somewhere in the 8 percent area might be the current appropriate identification of children with disabilities preschool, given the current population.”).
65. It is also consistent with many of the District’s own documents. For example, the District’s Special Education Monitoring & Compliance Manual (IDEA Part B) from August 2014 uses 8% as the enrollment benchmark:
Child Find monitoring is a process designed to ensure that students with disabilities are being appropriately identified and served by their LEAs. Twice a year, OSSE will review the enrollment rates for students with qualifying disabilities under IDEA at each LEA. LEAs that have special education enrollment rates of less than 8% of the total student population will be reviewed to ensure that the LEA has proper special education referral and eligibility processes in place, and to ensure that LEA staff understand their obligation to provide special education and related services to students with disabilities. Pls.’ Ex. 51, at 15 (emphasis added).
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66. In addition, the current version of the Early Stages Manual, which is maintained online and is date stamped April 29, 2015, and includes updates as of April 2015, states: “Nationally, about 6% of three-to-five year olds are identified with developmental delays, but taking into consideration the additional risk factors in DC, including low birth weight, poverty, and HIV/AIDS infection, the number of children who are expected to be eligible has been estimated to be between 8.5% and 10.5%.” Pls.’ Ex. 61, at DL2015 2304.
67. All of this supports the conclusion that the District must show that it is serving 8.5% of its population of three-to-five-year-old children with special education and related services. The Court emphasizes that 8.5% is the minimum that the District should be achieving. 2015 Dunst Direct ¶ 40; see also Mem. Op. ¶ 30, ECF No. 294.
68. The District offers several contrary arguments. First, Dr. Freund believes that the 8.5% benchmark is arbitrary. 2015 Freund Direct ¶ 11. The Court disagrees. The Court made a reasoned conclusion based upon the evidence presented at the last trial, see Mem. Op. ¶¶ 29–30, ECF No. 294, and the findings above, including Dr. Beers and Dr. Freund’s statements, and the District’s own documents.
69. Second, Dr. Freund believes that the District has such a strong Child Find program that a numerical benchmark is unnecessary. 2015 Freund Direct ¶ 11. This argument, however, overlooks how critical it is for any organization to have a benchmark to avoid slippage. A benchmark is not necessary just for the Court to assess compliance; it is necessary for staff to understand what must be accomplished. As described above, Dr. Beers testified that, in 2009, he identified 12% as the goal because he “was asked to set forth an aggressive metric in order to make sure that we could get quick change.” Trial Tr., Nov. 13, 2015, 20:11–14.
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70. The results of the District’s program confirm the need for a benchmark. Around the time of the last trial, when the District had a goal of 10 to 12%, it had a rapid rise in its enrollment rate. Trial Tr., Beers Test., Nov. 13, 2015, 20:11–21:1. However, during 2013 and 2014, around which time the District did not have an enrollment benchmark, the District’s enrollment in special education and related services fell by approximately 15%. See id. at 21:24–22:4 (stating the benchmark was abandoned); Compagnucci Dep. 32:18–33:1, June 3, 2014, Pls.’ Ex. 16 (stating no enrollment benchmark was used in 2014); Maisterra Dep. 33:21–34:10, June 2, 2014, Pls.’ Ex. 14 (same); infra para. 85 (showing a fall in enrollment rate).
71. It is not clear to the Court why the District abandoned its benchmark. Dr. Beers testified:
[W]e have seen that we’ve had a rapid rise in that percentage and started to see that stabilize. But we know that we also have a system where we have staff who believe we should continue to push. And even though we are in that 8 to 12 percent range, I don’t think that the staff are willing to sort of just rest on their laurels. So we have backed away from a special number and tried to use the target of really trying to make sure that we’re reaching more kids through our screening processes because that’s the way we start to make sure that we’re confident that we’re serving all the kids that need to be served. Trial Tr., Nov. 13, 2015, 21:19–22:4. Indeed, the District discontinued its use of a benchmark even though there was not a rapid rise in the enrollment percentage, at least recently. In fact, as described below, there was a two-year drop. See infra para. 85. Moreover, the District is not currently in the 8 to 12% range. That conclusion is based on outdated census figures which the District does not use in other similar circumstances. See infra paras. 86–95. The remainder of Dr. Beers’ explanation, that he does not think that his staff would rest on their laurels, does not explain why the District would abandon a benchmark. 72. Third, Dr. Freund contends that “if the Court is inclined to ascribe compliance to a number, . . . it would be better to look for the number of children served (over 1,450 children in
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each month for nearly two full years) and find that this large number of children served is a sufficient one to serve a numeric proxy for programmatic compliance.” 2015 Freund Direct ¶ 11; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 103 (“[S]ustained delivery of special education services to more than 1,450 children . . . constitutes strong evidence of compliance with the IDEA’s Child Find mandate.”). However, again, the number of preschoolage children with IEPs in the District fell over that two-year period and then began to rise again. See infra para. 85. Based on the District’s own measurement, 264 fewer children were receiving special education and related services in November 2014 than in March 2013, id., while at the same time the population of three-to-five-year-olds in the District was rising. See infra para. 89. This apparent backslide, coupled with the fact that the District’s three-to-five-year-old population is expected to continue to rise, see infra para. 90–91, demonstrates that any benchmark should reflect the rate of enrolled students, not the absolute number of enrolled students.
73. Relatedly, the District cites to Dr. Dunst’s 2010 testimony, where he stated the “District’s goal should be to serve between 600 and 1,100 preschool children in special education.” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 102 (citing Trial Tr., Nov. 12, 2015, 117:2–5, 119:22–25). The District argues that this statement undercuts Dr. Dunst’s testimony and supports its argument that the current absolute number of children being served shows the District is complying with the IDEA. Id. As plaintiffs point out, this figure of 600 to 1,100 preschool children ties to Dr. Dunst’s 2009 expert report, where he wrote that “[t]he different profiles shown in Exhibit B would indicate that DCPS should be locating and serving at least 6% of the preschool population in special education, or about 1100 children.” ECF No. 3587, at 13. At the time, six percent was that national average. Id. at 10–11.
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Dr. Dunst continued in his report: Based on the poverty and teenage pregnancy rates in the District of Columbia, as well as the number of births, one would expect that the incidence of disability among preschoolers in the District to be greater than in most other States. In a study of the influences of poverty on the incidence of disability among preschoolers, a large percentage of birth to six year olds who lived in households at or below federal low income thresholds were more likely to have a disability than those who lived in households with higher incomes. Id. Looking to this text, plaintiffs argue that “in 2009, before Dr. Dunst calculated the appropriate benchmark based in part on the risk factors in the District, he stated that the District should be serving at least the national average, but likely more due to risk factors in the District.” Pls.’ Proposed Findings of Fact and Conclusions of Law 26 n.12. And the Court agrees, finding Dr. Dunst’s testimony in 2015 and in 2009 is consistent. 74. Fourth, the District argues that the 8.5% is too high because that target number does not properly account for what the District called “protective factors,” that is, conditions or policies that “buffer[] children against their negative effects” of the District’s heightened risk factors, such as poverty and homeless. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 97. For example, the District asked Dr. Dunst about how the existence of non-profits and other social organizations may reduce the number of children in need of special education and related services, see Trial Tr., Nov. 12, 2015, 123:17–124:9, 125:10–23, and Dr. Travis Wright testified on the District’s behalf that its non-profits contribute to a strong social safety net, see Trial Tr., Nov. 16, 2015, 16:24–17:14. Washington D.C.’s network of non-profits likely does indeed help to alleviate some of the negative developmental effects of risk factors like high homelessness and poverty rates, but child homelessness and poverty still exist in D.C. at staggering levels. See supra para. 61. In the Court’s view, the positive effects of such a non-profit network would materially affect the enrollment analysis if it decreased the incidence of the relevant risk factors.
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But to the extent that the non-profits do decrease rates of poverty and homelessness, etc., that decrease is already baked into Dr. Dunst’s analysis. In other words, the rates of the relevant risk factors are lower than they otherwise would be if D.C.’s network of non-profits did not exist. Therefore, Dr. Dunst’s analysis, which centers on risk factors, still incorporates much of the positive effects of protective factors.
75. Adding to the protective factors, Dr. Wright testified that the District’s early childhood education programs (not specific to special education) were ranked best in the country. Trial Tr., Nov. 16, 2015, 16:24–17:14. This is of course a positive development, but the District did not analyze the specific impact that those or other programs may have on the percentage of children who should receive special education and related services. See id. at 20:14–17. Regardless of the aggregate impact of the protective factors, the 8.5% enrollment benchmark is conservative given the prevalence and impact of the District’s risk factors. See, e.g., Pls.’ Ex. 287, at 4131 (showing that 23% of households in D.C. receive assistance through the Supplemental Nutrition Assistance Program—the highest in the country). Moreover, it is in line with estimates contained in internal District documents, see supra paras. 65–66, and with testimony provided by Dr. Beers in 2011. See supra para. 62. As such, the Court finds that the conservative nature of the benchmark more than accounts for any impact the protective factors may have on the analysis.
76. Fifth, the District contends that, with a benchmark, or with the wrong benchmark, there is a risk of over-identification. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 100; Trial Tr., Wright Test., Nov. 16, 2015, 18:5–15. Such over-identification could harm children who do not need special education services by placing a label on them that could potentially last “throughout their educational career.” Trial Tr., Beers Test., Nov. 13, 2015, 2:15–24. However, if
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a child is referred and does not qualify for services, the child should not receive services and the District staff should understand that they should not be finding children eligible for special education services when they do not qualify. That appears to be what Dr. Freund meant when she testified that “if it over-identifies through screening, the evaluation process, [will] take care of that.” Trial Tr., Nov. 16, 2015, 32:22–24.
77. The District may believe that it could not possibly meet the 8.5% benchmark, using the accurate, updated census figures, see infra paras. 86–95, because there are not enough children who need special education and related services, due to its improved programs or otherwise. However, in March 2013, the District almost achieved that number by serving 8.04% of its preschool-age population, as calculated using the appropriate numerator and denominator (the number subsequently fell). See infra para. 84. Moreover, other jurisdictions serve significantly more than 8.5% of their three-to-five-year-old population. See U.S. Department of Education, 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, 2014, Pls.’ Ex. 182, at 98–99 (showing that Arkansas, Kentucky, and Puerto Rico had 2012 three-to-five-year-old Child Count percentages of 10.6%, 10.3%, and 10.2%, respectively). At the moment, based on data reported to OSEP, the District is only serving 6.19% of its population, which is almost identical to the national average. See infra paras. 96, 98. In light of the risk factors in the District, and the fact that the District is the only entirely urban jurisdiction that reports to OSEP, it should be serving well over the national average. 2015 Dunst Direct ¶¶ 43, 88.
78. Sixth, the District argues that any benchmark should relate to children determined eligible, rather than children served, since that would comport with the identification requirement of the IDEA. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 93–94 (“[T]he number of preschool-age children for whom the District fulfilled its Child Find obligation (i.e., to
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identify, locate, and evaluate) necessarily exceeds enrollment in preschool Part B; conversely,
enrollment does not directly approximate identification rates absent evidence to the contrary.”);
id. at ¶ 95 (“Plaintiffs offered no reliable basis for determining how enrollment correlates to
identification, location, or evaluation for Part B services.”). Moreover, Mr. Compagnucci testified
that “enrollment is not a perfect proxy for Child Find because it fails to account for children who
were identified but whose parents did not complete the IEP or enrollment processes, which can
happen for a variety of reasons.” Compagnucci Direct ¶ 19. Indeed, the District has argued
previously, in the context of class certification, that plaintiffs should be measuring identification
data, not enrollment data. Defs.’ Mot. to Decertify Subclass 1 4–6, ECF No. 467. However, as
described above, the 8.5% benchmark relates to children who should be receiving special
education and related services, not just children who should be determined eligible for such
services. See supra para. 63.
79. Moreover, in the Court’s opinion on October 23, 2015, it stated:
[D]efendants overlook that the enrollment numbers are used to help gauge the effectiveness of the District’s efforts to locate and identify disabled children in connection with their IDEA obligations. The Court agrees with the plaintiffs that “[t]he District’s enrollment rate does not define the subclass, but is instead a way to measure the effectiveness of the District’s policies and practices to the identification of children potentially eligible for special education services.” Pls.’ Opp’n 5. Indeed, in a recent Order [444], the Court ruled that low enrollment numbers “would suggest that the District has in fact failed in its obligations to locate disabled children.” Mem. Op. 35. As they always have, plaintiffs continue to use the enrollment figures as one of many potential ways to approximate the District’s success in identifying and locating disabled children—not as a means to define the boundaries of subclass 1.
Although there is reason to believe plaintiffs’ suggestion that enrollment figures gauge the District’s effectiveness in identifying and locating children, the Court welcomes the District to submit evidence to diminish that argument. For example, defendants are free to offer evidence to counter plaintiffs’ theory by showing that enrollment figures actually do not reasonably approximate identification rates.
Mem. Op. 11–12, ECF No. 482.
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80. The District did not timely submit evidence to show that enrollment figures do not reasonably approximate identification rates. See Order, ECF No. 498. And importantly, the District’s own manual shows that it too uses enrollment rates to measure its Child Find compliance:
Child find monitoring is a process designed to ensure that students with disabilities are being appropriately identified and served by their LEAs. Twice a year, OSSE will review the enrollment rates for students with qualifying disabilities under IDEA at each LEA. Special Education Monitoring & Compliance Manual (IDEA Part B), Pls.’ Ex. 51, at 15. 81. Other District documents demonstrate that the District uses the terms “identification” and “enrollment” interchangeably. See, e.g., Trial Tr., Compagnucci Test., Nov. 13, 2015, 33:20–36:6 (explaining that the District’s enrollment data are generally referred to as identification data); Trial Tr., Proddutur Test., Nov. 13, 2015, 45:9–46:21 (describing the “Business rule for identification,” which relates to the calculation of enrollment data); District of Columbia Monthly Enrollment Reports 53, 56, 58, 60, 62, 64, 66, 68, Pls.’ Ex. 189 (showing the District’s monthly data reports identifying children “Receiving Services Under IDEA Part B” and, from that, calculating a “Total Identification” percentage). 82. This Court previously found that 8.5% is the appropriate benchmark. That percentage is based upon Early Stages’ own manual, the testimony of Dr. Beers, and the testimony of Dr. Dunst, and aligns with the benchmarks in the District’s own documents. It is by its very nature an estimate, and is not perfect. However, there is more than sufficient evidence supporting it. As described below, this Court will issue an injunction thereon. Like the prior injunction, it may be modified if either party subsequently proves that 8.5% does not accurately represent the
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percentage of 3-5-year-olds that should be receiving special education and related services. See ¶ 20, ECF No. 295.
2. The District Is Failing to Serve Large Numbers of Children with Special Education and Related Services a. The District has failed to provide special education and related services to large numbers
83. Dividing the number of three-to-five-year-old children whom the District reports have an IEP (or an extended IFSP), by the annual census estimate, yields an average enrollment of 7.57% in 2013 (when the District began producing monthly enrollment data), 6.54% in 2014, and 6.90% in 2015. See Pls.’ Ex. 285, at 1. There was a maximum enrollment of 8.21% of children, and minimum of 6.40%, since 2013. See id.
84. Based on the parties’ sampling and data agreements,3 the District’s enrollment totals should be reduced by 2% to account for children who are not receiving special education and related services. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 5-6, ECF No. 514-2 (showing that two children identified as enrolled in the District’s 100-child sample had not actually received services). Doing so, the District reached, since 2013, a high of 8.04% ((1,742 × 0.98)/21,221, Mar. 2013) and a subsequent low of 6.27% ((1,478 × 0.98)/23,094, Nov. 2014). See Pls.’ Ex. 285, at 1. Based on the requirement of serving 8.5% of children, these figures indicate that, on a monthly basis, the District failed to
3 During discovery, the parties agreed that plaintiffs would have access to three random 100-child samples (100 children whom the District identified as enrolled, 100 children whom the District identified as having timely received eligibility determinations, and 100 children whom the District identified as being smoothly and effectively transitioned from Part C to Part B services) and that the 100-child samples are sufficiently large so that errors in the District’s categorization of children within each sample would apply to the entire population from which the sample was chosen. E-mails among counsel regarding sampling methodologies. Pls.’ Ex. 130, 135.
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serve between 98 ((21,221 × 0.085)–(21,221 × 0.0804)) and 515 ((23,094 × 0.085)–(23,094 × 0.0627)) children. See id. As this Court previously explained, such data “would suggest that the District has in fact failed in its obligation to locate disabled children.” Mem. Op. 35, ECF No. 444.
b. The number of children who the District reported as enrolled fell in 2013 and 2014
85. The number of preschool-age children with IEPs, as reported by the District, declined for nearly two years and only recently began to rise again. Pls.’ Ex. 285, at 1–2. In March 2013, the District hit a high of 1,742 children with IEPs. Id. After that time, the number fell by 264 to a low of 1,478 children in November 2014. Id. That is a decline of over 15%. There is no explanation for this decline. Since that low point, the number of children reported by the District as “enrolled” in Part B services has risen by 138 children, or about 9%. Id. at 1.
c. The district uses outdated census figures 86. To calculate the percentage of children enrolled in special education and related services, the number of children ages three to five, inclusive, receiving special education and related services is divided by the population of three-to-five-year-old children in the District. 87. For every period from 2013 to the present, the District has calculated its enrollment percentage using, for the denominator, the population from the 2010 decennial census. Proddutur Direct ¶ 4 (“Divide that number [of children with a current eligibility determination or IEP] by the population of three-to-five year olds in the District according to the decennial census.”); District of Columbia Monthly Enrollment Reports, Pls.’ Ex. 189 (showing that the denominator each month is 17,605, the 2010 census number, from 2013 through 2015). 88. The Census Bureau prepares annual population estimates, which adjust the Bureau’s decennial census to account for birth, death, and migration rates over the intervening
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year. See, e.g., District of Columbia State Data Center Fact Sheet, 2012 DC Population Estimates, Pls.’ Ex. 197, at 1. It is appropriate to use the U.S. Census Bureau’s annual estimates of the District’s population instead of using the 2010 decennial census figure to calculate the enrollment rate. 2015 Dunst Direct ¶¶ 71–73; Trial Tr., Cupingood Test., Nov. 12, 2015, 45:13–46:1 (stating the 2013 census estimate is more accurate for 2013 than the 2010 decennial census number).
89. The District has artificially inflated its enrollment percentages by relying on the 2010 census figures because the District’s population of three-to-five-year-old children had risen substantially over the last five years: 2010, 17,605 (6,267 three-year-olds, 5,795 four-year-olds, and 5,543 five-year-olds); 2011, 18,905; 2012, 19,799; 2013, 21,221; 2014, 23,094. 2015 Dunst Direct ¶ 73; U.S. Census Bureau 2014 Population Estimates, District of Columbia, Pls.’ Ex. 196, at 1, 4, 7, 10.
90. These numbers are likely to continue to rise. 2015 Dunst Direct ¶ 73. In the 2014 census estimate, the number of children ages zero, one, and two total 26,485, which is over 3,000 children more than the three-to-five-year-old estimate. See U.S. Census Bureau, 2014 Population Estimates, District of Columbia, Pls.’ Ex. 196, at 10; 2015 Dunst Direct ¶ 73.
91. This substantial growth is mirrored by the District’s projections for enrollment in school, which it uses for budgetary purposes. The projected enrollment rate for children in prekindergarten 3, prekindergarten 4, and kindergarten (or, as described with regard to charter schools, pre-school, pre-kindergarten, and kindergarten) for 2012 (the budget for which issued in 2011) was 16,814 (9,524 for DCPS and 7,290 for charter schools). District of Columbia FY2012 Proposed Budget and Financial Plan, vol. 3, Pls.’ Ex. 190, at D-19, D-52. The corresponding projected enrollment rate for 2016 is 19,549 (10,142 for DCPS and 9,407 for charter schools).
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District of Columbia FY2016 Proposed Budget and Financial Plan, vol. 3, Pls.’ Ex. 191, at E-1, D-77.
92. If the District were to continue to use the 2010 census figure until 2020, then due to continuously rising population, there would be a dramatic—but entirely artificial—decline in the enrollment rate in 2020. 2015 Dunst Direct ¶ 74.
93. Therefore, is not surprising that the Census Bureau’s annual population estimates are required for purposes of grant determinations under the IDEA and are used by OSEP, OSSE, other District agencies and other states, for analysis of data related to these and other issues outside of this litigation. More specifically, the IDEA states that, “[f]or purposes of making grants, the Secretary [of Education] shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary.” 20 U.S.C. § 1411(d)(3)(A)(ii). Additionally, the annual population estimate is used by OSEP for its annual Child Count. Department of Education. See 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Act, 2014, Pls.’ Ex. 182, at 6 (“In this report [which catalogs Child Count data], annual resident population estimates for the 50 states and the District of Columbia were used to determine the percentages of the resident population served under IDEA, Part C and Part B, and to develop comparisons and conduct data analyses.”); id. at 98–99 (“Percentage for each state was calculated by dividing the number of children ages 3 through 5 served under IDEA, Part B, by the state in the year by the estimated U.S. resident population ages 3 through 5 in the state for that year, then multiplying the result by 100.”); 2015 Dunst Direct ¶ 71.
94. The District uses the U.S. Census Bureau’s annual population estimate to report data related to the percent of children receiving Part C services. The District is required to report
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to OSEP the “Percent of infants and toddlers birth to 3 with IFSPs compared to national data.” FFY 2013 Part C State Performance Plan (“SPP”)/Annual Performance Report (“APR”), Pls.’ Ex. 241, at DL2015 3695. To calculate that percentage, the District used as its denominator what it referred to as the “U.S. Census Annual State Resident Population Estimates April 1, 2010 to July 1, 2013,” which it identified as 26,517 children. Id. That was the Census Bureau’s annual population estimate for children up to age 3 for 2013 as of the time of the District’s publication. See U.S. Census Bureau, 2013 Population Estimates, District of Columbia, Pls.’ Ex. 195, at 7 (totaling 9,111, 8,680, and 8,726 for zero-to-two-year-olds, inclusive).
95. The annual estimate is also used by numerous state and federal agencies, including the District’s own agencies, for numerous policy purposes. See, e.g., District of Columbia State Data Center Fact Sheet, 2012 DC Population Estimates, Pls.’ Ex. 197, at 1 (“The U.S. Census Bureau’s Population Estimates Program (PEP) produces estimates . . . [which] are used in federal funding allocations, as survey controls, as denominators for vital rates and per capita time series, and as indicators of recent demographic changes.”).
d. The District’s Child Count percentage is also falling 96. Every year, the District and the states are required to provide OSEP with “Child Count” data, which is the number of children in that jurisdiction receiving special education and related services. 2015 Dunst Direct ¶ 44; 34 C.F.R. 300.641(a) (“report the number of children with disabilities receiving special education and related services”); 34 C.F.R. 300.644 (“report children with disabilities who are enrolled in a school or program . . . that—(a) Provides them with both special education and related services . . . .”); OSEP EDFacts Submission System ages 3-5, Pls.’ Ex. 183, at 6 (“Include all children with disabilities (IDEA) who are ages 3 through 5 receiving special education and related services according to an individual education
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program or services plan on the count date.”). Enrollment should be measured in this case too by the receipt of the prescribed special education and related services.
OSEP compares the District’s and states’ Child Count data to the U.S. Census Bureau’s annual population estimates for each jurisdiction to determine the percentage of preschool-age children enrolled in Part B services. This Court relied upon those percentages in prior years when it concluded that the District failed to provide special education and related services to sufficient numbers of children. Mem. Op. & Findings of Fact and Conclusions of Law ¶¶ 23–32, ECF No. 294. The District’s Child Count percentages for 3-5-year-olds are 7.6% for 2011-2012, 7.9% for 2012-2013, and 6.8% for 2013-2014. OSEP Part B Data Display 2015, Pls.’ Ex. 248, at 1. OSEP has not yet produced its report that identifies the Child Count percentages for the 2014-2015 school year. 2015 Dunst Direct ¶ 61. However, for that year, the District reported to OSEP that it provided IEP’s to 1,429 children (237 3-year-olds, 511 4-year-olds, and 681 5-year-olds), which is only 6.19% of the 2014 population of 3-5-year-olds. 2014 Child Count Report, Pls. Ex. 292, at DL2015 5960; 2015 Dunst Direct ¶ 61.
97. That is a decline of approximately 19% from 2011 to 2014. The District has claimed that these OSEP data show lower service rates than the rates produced to plaintiffs in this litigation because OSEP does not permit OSSE to include in the count children for whom the District lacks certain information, such as a description of the educational environment in which the child receives services. Maisterra Dep. 348:1–9, 349:17–20, 350:1–4, July 2, 2014, Pls.’ Ex. 18. The educational environment is where the child is receiving services. OSSE 2014 Enrollment Audit Manual Supplement: Child Count Guide, Sept. 22, 2014, Pls.’ Ex. 188, at 10; 2015 Dunst Direct, ECF No. ¶ 83. The District would not have this information if the child had not begun receiving services. However, if the child had begun receiving services and the District
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still lacked that or other required information, that demonstrates a significant problem with the District’s data management. Id.
98. As described above, the Child Count rate is now 6.19%. See supra para. 96. That is essentially equal to the most recent national average for 3-5-year-olds, which is 6.2%. OSEP Data Display: District of Columbia, Identification of Children with Disabilities, 2015, Pls.’ Ex. 248, at 1; see also 2015 Dunst Direct ¶ 88. It should be much higher given the risk factors in the District. See supra para. 61. It also should be rising, not falling. This means that many children are not receiving needed special education and related services.
E. TIMELY ELIGIBILITY DETERMINATIONS 1. Background
99. 34 C.F.R. § 300.301(c)(1) states that an initial evaluation “[m]ust be conducted within 60 days of receiving parental consent for the evaluation” or within a state-established timeframe. District law provides 120 days after a child is referred to issue a determination as to whether the child is eligible for special education and related services. See infra para. 255.
100. The District’s 120-day timeframe still appears to be the longest period of time in the country. 2015 Dunst Direct ¶ 89. In only five states does the timeframe exceed 60 days. Id.
101. In 2017, the time period may be shortened to 60 days, with an additional 30 days to obtain parental consent for the evaluation. The District recently amended its code as follows:
Beginning July 1, 2017, or upon funding, whichever occurs later, an LEA shall assess or evaluate a student who may have a disability and who may require special education services within 60 days from the date that the student’s parent or guardian provides consent for the evaluation or assessment. The LEA shall make reasonable efforts to obtain parental consent within 30 days from the date the student is referred for an assessment or evaluation. D.C. Code § 38-2561.02(a)(2)(A).
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102. Historically, the District has exceeded the 120-day limit for a substantial number of children. See 2015 Dunst Direct ¶¶ 110–14; infra paras. 200–02, 205–07; see also Mem. Op. ¶¶ 33–40, ECF No. 294. Because early intervention is critical in the development of a child with early signs of educational disabilities, the District’s persistent delays beyond the 120-day limit presents a critical problem. See supra p. 2.
103. Based upon evidence presented at the 2011 trial, the Court concluded that the District shall “ensure that at least 95 percent of all preschool children referred for Part B services receive a timely eligibility determination.” Mem. Op. ¶ 149, ECF No. 294. Presumably with that benchmark in mind, the District contends that over 97% of preschool-age children receive timely eligibility determinations. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 109. However, calculated appropriately, the number falls substantially. See infra para. 116. Dr. Cupingood’s calculations show that approximately 20 percent of preschool-age children are not receiving timely eligibility determinations. Id.
2. The District Is Not Starting the 120-day Period at the Time That a Child Is Referred by a Non-parent
104. The District does not start the 120-day period at the time that a child is referred by a non-parent—it only starts the clock when a child is referred by a parent. Trial Tr., Compagnucci Test., Nov. 13, 2015, 36:7–37:14. Mr. Compagnucci explained that Early Stages treats a referral from a parent as a referral for special education (and therefore it starts the 120-day clock), but treats a referral from a non-parent as a referral to Early Stages (and therefore it does not start the 120-day clock). See Compagnucci Dep. 111:9–18, June 3, 2014, Pls.’ Ex. 16 (“[Q] What’s the difference between a referral to special education and a referral to your program? [A]: A referral to special education is defined under OSSE policy in DCMR. A referral to Early Stages is defined by us. And what we mean when we say a referral to Early Stages is that somebody who is not the
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parent has reached out to us to express a concern about a child.”); id. at 116:10–117:12 (“[W]e don’t believe that a pediatrician sending over in whatever form they might send it, that this is a child about whom they have concern is a referral to special education.”). By instituting this policy, the District is effectively giving itself even more than the 120 days to complete the eligibility determination when the referral comes from a non-parent, such as a pediatrician.
105. The District explained that the clock should not start at the time of a non-parent referral because parents “were upset that a special ed referral had been initiated without their knowledge or awareness” and “it seemed inappropriate to initiate that referral without the parents’ awareness.” Defs.’ Proposed Findings of Fact and Conclusions of Law 36 n.5; Compagnucci Direct ¶¶ 23, 25; Compagnucci Test., Trial Tr., Nov. 13, 2015, 37:2-11. Of course, the District should keep parents informed and protect parents and children’s privacy, but it is hard to understand how this concern should cause the District to wait to start the clock on the 120-day period. In fact, the District explicitly states, in a guide to families, that the special education process starts upon referral from a pediatrician. DCPS Office of Specialized Instruction, Programs & Resources Guide for Families, 2014-2015, Pls.’ Ex. 78, at DL2015 471 (“The special education process starts once a teacher, parent, psychologist, other school staff member or third party (such as a day care center or physician) submits a referral for a student.”). Moreover, the actual start of the clock would not negatively affect parents. If anything, it helps ensure that the child timely receives services. The only advantage the Court sees of not starting the clock is to give the District additional time for an eligibility determination. As the Court points out, if there is any delay in the responsiveness by the parent, it can be addressed by the parental delay policy. See infra paras. 157–61.
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106. The District contends that requiring it to start the 120-day clock upon the date of
the initial referral by a non-parent amounts to changing the rules mid-game. Trial Tr., Nov. 16,
2015, 71:1–8. The Court disagrees. This issue was previously litigated in this case. In 2010, the
District strongly disputed plaintiffs’ allegation that the District was not starting the 120-day clock
at the time of referral by a non-parent:
Just as egregious is Plaintiffs’ complete disregard of voluminous evidence concerning the District’s current performance of its Child Find and FAPE obligations under the IDEA, in order to assert as “undisputed facts” practices that Plaintiffs well know were abandoned long ago. . . . Plaintiffs assert that ‘[t]he percentage of preschool-age children receiving an untimely eligibility determination (i.e., more than 120 days after referral) would be greater if defendants used the date that a primary referral source[] makes a referral as the ‘referral date.’’ . . . Yet, as Plaintiffs are aware, as a matter of current practice ‘[t]he Early Stages Center considers a referral to be the first time any information is received about a child’—that is, the date on which a referral is received from a primary referral source is in fact treated as the referral date.
Defs.’ Mem. in Opp’n to Pls.’ Partial Mot. for Summ. J. 10, ECF No. 180.
107. Moreover, in 2011, in response to a question from the District’s counsel, Dr.
Maisterra testified that the District started the 120-day clock at the time of a written referral by
anyone. Maisterra Dep. 153:9–11, Feb. 28, 2011, Pls.’ Ex. 11 (“[Q] Just to clarify, so a written
referral from anyone starts the 120 days? [A] Yes.”). Therefore, plaintiffs’ argument is not new.
It comports with the District’s representations as to its policy prior to the last trial.
108. Plaintiffs’ argument is also consistent with the Court’s decision after the last trial,
which defined “[d]ate of referral” as “the date on which defendants receive a written or oral request
for assessment of a preschool child including the child’s name and age, the parent’s or guardian’s
name, mailing address or telephone number, and the basis for referral.” Mem. Op. ¶ 149(b), ECF
No. 294. This definition is not restricted to referrals by parents. Among other things, the decision
required the District to attempt “to contact the parent or guardian of a referred child, and, upon
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obtaining consent of the parent or guardian, provide feedback to the referral source regarding the outcome of the referral in a timely manner.” Id. at ¶ 155.
109. The flaw in the District’s calculation is also not remedied by the District’s policy that Early Stages staff must attempt to contact the parent within 48 hours of a referral by a nonparent. See Compagnucci Dep. 65:15–22, June 2, 2014, Pls.’ Ex. 15. Approximately one third of the time, the District fails to comply with that policy. 2015 Cupingood Direct ¶ 76. The District explained its apparent failure to comply with that policy by stating that it may be due to failure to document properly attempts at communication or “variation in staff performance in reaching out to families in a timely manner.” E-mail from District’s Counsel to Plaintiffs’ Counsel, May 27, 2014, Pls.’ Ex. 136, attachment p. 2.
110. The flaw in the District’s calculation is also not remedied by its contention that screenings are completed within 7 days of a referral 85% of the time. Compagnucci Direct ¶ 24. Regardless of the dates of screenings, as described below, see infra para. 115, the District is failing to provide timely eligibility determinations to anywhere near to 95% of children and there are substantial delays in even scheduling evaluations.
3. The District Is Failing to Provide Timely Eligibility Determination to Large Numbers of Children
111. The District does not keep its data in a format that allows for easy correction of the errors described above. Some of the data are in the Early Stages database, some are in the SEDS database, and it is not always possible to reconcile the databases. See 2015 Cupingood Direct ¶¶ 31–32. However, as described below, plaintiffs’ statistical expert, Dr. Cupingood, presented reliable evidence to show that the timeliness of the District’s eligibility determinations falls substantially from the 97% that the District claims. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 109 (arguing that the District achieved 97.06% from December 1, 2012 to
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November 30, 2013); see also infra paras. 112–16 (detailing the analysis that underpins the District’s more accurate rate of approximately 80%). When the 120-day clock begins at the time of referral by a parent or non-parent, and other appropriate corrections are made to the District’s data, the percentage of timely eligibility determinations falls substantially, to a rate closer to 80%.4
112. Dr. Cupingood started with the children who the District reported were referred for special education and related services. SEDS tracks the date of referral by a parent, not the date of referral by a non-parent. E-mail from District’s Counsel to Plaintiffs’ Counsel, Apr. 29, 2014, Pls.’ Ex. 133, at 5. The date of referral by a non-parent is tracked in the Early Stages database. Id. at 4. In order to determine which children were referred by a non-parent prior to the parental referral, Dr. Cupingood had to match the children in the two databases. 2015 Cupingood Direct ¶¶ 31, 50. However, the version of the Early Stages database that the District produced lacked identification numbers for many children which were necessary to match them. Dr. Cupingood excluded those children who could not be matched. See id. at ¶ 50.
113. Dr. Cupingood also excluded the children who were transitioning from Part C services, for whom the relevant deadline is the child’s third birthday. Id. at ¶¶ 32, 39, 52; see infra para. 120.
114. Dr. Cupingood also excluded the children who received a parent consent denial or referral discontinuation prior to the 120-day deadline, and therefore did not receive a timely or untimely determination. 2015 Cupingood Direct ¶ 55. The District also subsequently revised its
4 Dr. Cupingood’s calculation relates to the period from December 1, 2012, to November 30, 2013. 2015 Cupingood Direct ¶ 38. The parties agreed that such statistics should essentially be treated as current for purposes of the Court’s decision. Parties’ Data Agreement, Pls.’ Ex. 294.
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calculation methods to do the same. OSSE IDEA Part B Special Conditions Progress Report #2, Nov. 3, 2014, revised Nov. 26, 2014, Pls.’ Ex. 296, at 4.
115. For the remaining children, Dr. Cupingood compared the date of the initial referral from the parent or non-parent, with the eligibility date, to determine the percentage of children who received an eligibility determination within 120 days. 2015 Cupingood Direct ¶¶ 56–61. However, where the information in the Early Stages database suggested that the child’s case was closed and then the child was referred again, Dr. Cupingood conservatively used the later referral date in SEDS as the measure for the start of the 120-day period. Id. at ¶ 56. Where the information in the Early Stages database identified a date of first case opening after the referral date in SEDS (which referral date the District uses), Dr. Cupingood used the referral date in SEDS. Id. at ¶ 57.
116. In conducting this analysis, Dr. Cupingood found that approximately 20% of children did not receive a timely eligibility determination within the 120-day timeline. Id. at ¶ 61. That is well above the District’s 3% untimely calculation and four times as many untimely eligibility determinations as are permitted under the Court’s prior decision. See supra para. 103.
117. Moreover, during the 2011 trial, Dr. Beers testified that the District was working toward reducing the time for eligibility determinations to 60 days, rather than 120 days. 2011 Beers Direct ¶ 47, Pls.’ Ex. 1 (“The 60 day period is a standard that is higher than what is required by OSSE, but we determined that we have the desire to have that more aggressive timeline as our internal standard.”); Beers Dep. 48:22–49:11, Mar. 1, 2011, Pls.’ Ex. 12 (“Young children need to get into services as efficiently and effectively as possible, so the shorter time period that we can utilize, the better, and so I’m having staff feel as though there is some pressure to move forward effectively with families is important for us to have them reach
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towards.”). The Early Stages’ Strategic Plan in 2009 called for an “increase [in] the percentage of evaluations completed within the 60-day period to 95% by September 2012.” Pls.’ Ex. 66, at DL2 1967. Dr. Maisterra also testified in 2011 that 120 days was too long for a child to wait for an eligibility determination. See Maisterra Dep. 158:7–15, Feb. 28, 2011, Pls.’ Ex. 11 (“Q. Does OSSE believe that 120 days is an appropriate amount of time for a preschool-age-child to wait for an eligibility determination? A. I would say no. Q. Why not? A. I think that, generally speaking, we feel that 120 days is a long time and, as I said earlier and we’ve discussed before, we’re looking at that as an area of review and consideration.”).
118. The District has revised its code to reduce, as of July 1, 2017 or upon funding, whichever occurs later, the time period in which an LEA must complete an initial evaluation to 60 days from parental consent. See supra para. 101. The District’s Chief Financial Officer determined that Early Stages would need 22 new staff members to comply with that new timeframe once it takes effect. Office of the Chief Financial Officer, Fiscal Impact Statement— Enhanced Special Education Services Act of 2014, Sept. 15, 2014, Pls.’ Ex. 272, at 5.
119. As described above, the District is not meeting the 120-day deadline for many children. See supra para. 165. Since 60 days is the timeline the District is striving for, see supra para. 117, and the timeline that 45 states already employ, see Dunst Direct ¶ 89, the District should at least be able to reliably offer eligibility determinations in twice that time. But it is failing to do so.
F. TRANSITION FROM PART C TO PART B SERVICES 120. The District is required to provide children who receive Part C services with a “smooth and effective” transition to Part B services by that child’s third birthday. See infra paras. 265–66. A transition is smooth and effective if (1) the transition begins no less than 90
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days prior to the child’s third birthday; (2) the child is provided with an IEP listing both the type of placement and the 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. See Mem. Op. 25, ECF No. 389; 2015 Dunst Direct ¶ 18.
121. Historically, the District has failed to provide a smooth and effective transition to large numbers of children. See 2015 Dunst Direct ¶¶ 124–28; Mem. Op. 12–13, ECF No. 444; Mem. Op. ¶¶ 41–45, ECF No. 294; infra paras. 208–15.
122. Based upon evidence presented at the 2011 trial, the Court concluded that the District shall “ensure that at least 95 percent of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays.” Mem. Op. ¶ 150, ECF No. 294. The District claims that it is exceeding that benchmark. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 119 (presenting a rate of 96% in 2012-2013 and 98.71% in 20132014). However, the District’s statistics are inaccurate, in large part because it is not actually assessing when children start receiving their special education and related services. See infra paras. 123–36. When corrected, the data show that almost 30 percent of children are not receiving smooth and effective transitions. See infra para. 140.
1. The District Is Incorrectly Counting Children as Receiving a Smooth and Effective Transition Even If They Do Not Receive Services by Their Third Birthday and They Therefore Experience a Disruption in Services a. All services must commence by the child’s third birthday
123. The purpose of the smooth and effective transition requirement is to ensure that children do not experience a disruption in services. 2015 Dunst Direct ¶ 17; see also Mem. Op. ¶ 162, ECF No. 294 (“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.”).
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124. Accordingly, services must commence by the child’s third birthday. See 20 U.S.C. § 1412(a)(9) (“By the third birthday of such a [transitioning] child, an individualized education program or . . . an individualized family service plan, has been developed and is being implemented for the child.”); 34 C.F.R. § 300.101(b) (“(1) Each State must ensure that— (i) The obligation to make FAPE available to each eligible child residing in the State begins no later than the child’s third birthday; and (ii) An IEP or an IFSP is in effect for the child by that date, in accordance with § 300.323(b).”); 2015 Dunst Direct ¶ 18; see also Mem. Op. 39, ECF No. 444 (“All services must commence for a transition to be smooth and effective.” (emphasis in original)).
125. The District’s representatives have testified to this requirement, and it is pervasive in the District’s documents. Maisterra Dep. 56:20-57:1, June 2, 2014, Pls.’ Ex. 14 (“Q. Does that mean that services are supposed to begin by the third birthday? A. Yes, for children transitioning from Part C to Part B.”); id. at 170:10–16 (“Q. If the parent hasn’t agreed to a delay in implementation of the IEP, then the services have to be provided as early as the third birthday; right? A. Right. Q. I should have said that they have to be provided by the third birthday; right? A. Yes, by or on. . . .”); Maisterra Dep. 26:19–27:3, Feb. 28, 2011, Pls.’ Ex. 11 (“Q. And that child would be treated as a transition child, not as a Child Find child for that LEA? A. Yes. Q. So the timeline for ensuring that services are in place by age three would apply to that child? A. Yes.”); Compagnucci Dep. 77:4–12, June 2, 2014, Pls.’ Ex. 15 (“A. The child has a right to services implemented on their third birthday. . . . Q. You and I will agree that that’s true. Certainly we will, as the plaintiffs, will agree that that is true. [District’s counsel]: The defendants will agree to that too.”); OSSE Early Child Transition Policy, Mar. 2, 2010, Pls.’ Ex. 42, at 7 (“Implementation of the IEP. The obligation to make a free appropriate
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public education (FAPE) available to each eligible child begins no later than the child’s third birthday; and an IEP must be in effect for the child by that date.”); id. at 8–9 (“Each LEA must collect and report to the OSSE accurate, reliable and timely data [including] . . . [n]umber of days after age three that services begin and/or the reasons for delay, including parental refusal.”); OSSE Early Childhood Transition Guidelines, Feb. 2011, Pls.’ Ex. 46, at DL2014 109 (“If your child is eligible for services, the LEA is responsible for developing an IEP (Individualized Education Program) with your input by your child’s 3rd birthday and for implementing services upon enrollment in school at age three.”); id. at DL2014 120 (“If eligible, services shall begin on the child’s 3rd birthday.”); OSSE Division of Specialized Education, Office of Quality Assurance & Monitoring, Glossary, Pls.’ Ex. 51, at 1 (“Early Childhood Transition: All children exiting Part C who received timely transition planning to support the child’s transition to preschool and other appropriate community and receive services by their third birthday.”); Early Stages Transition Handout, Oct. 19, 2012 Pls.’ Ex. 74 (describing what must occur “[b]y the child’s 3rd birthday: . . . If your child is eligible for special education and you choose DCPS, your child must be receiving DCPS services”); Early Stages Transition Training, Pls.’ Ex. 59, at DL2014 1492 (“Eligibility and Location of Service offer needed prior to 3rd birthday. Child has legal right to get services on their 3rd birthday.”).
b. The District’s practice is to ensure that a child receives an IEP and location assignment by the third birthday
126. Despite these representations, the District defines transition, for the purposes of its statistical reporting, as merely having an IEP and a classroom assignment by the third birthday, not as having services begin by the third birthday. Maisterra Dep. 173:18–21, 182:9– 19, June 2, 2014, Pls.’ Ex. 14 (“Q. In those instances, however, where it doesn’t work quite like
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that, and that although by the third birthday there’s an assignment to a school and a particular kind of services, but there’s some delay in the services, those children are still counted as having been timely by their third birthday; right? . . . A. They are timely based on the current calculation, correct.”); Proddutur Dep. 197:7–16, July 2, 2014, Pls.’ Ex. 18. Therefore, in purporting to provide statistics regarding “smooth and effective transitions,” the District does not consider whether there is a disruption in services. Id. at 232:2–14. Therefore, it is not surprising that, as described below, many children experience disruptions in services.
c. The District does not track whether services begin by the child’s third birthday
127. OSSE’s Early Childhood Transition Policy requires that “[e]ach LEA . . . collect and report to the OSSE accurate, reliable and timely data [including] . . . [the] [n]umber of days after age three that services begin and/or the reasons for delay, including parental refusal.” Pls.’ Ex. 42, at 8–9. Despite this policy, OSSE does not require LEAs to maintain records of when special education services (as opposed to related services) begin, and therefore cannot and does not report delays in the start of those special education services. Johnson Dep. 17:5– 20:6, 22:4–17, July 2, 2014, Pls.’ Ex. 18. Individual SEDS files include quarterly progress reports may show that special education services were provided over a particular quarter, but these reports do not reliably state when those services began. See, e.g., Pls.’ Ex. 112, at 1. Also, individual SEDS files are supposed to include records (service trackers/reports) related to days when related services are provided, but those records do not compare the documented sessions to the date on which the services were supposed to begin and therefore do not track delays in the start of services or the reasons for such delays. See, e.g., Pls.’ Ex. 303 (providing examples of service reports); Report of the Monitor for the 2011-2012 School Year, Dec. 10, 2012, Pls.’ Ex. 264, at 46˗47 (“The Service Trackers did not seem to be providing a good system for
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monitoring delivery of services or missed services. The Service Trackers seem intended primarily as a way to document delivery of services for billing purposes. The Trackers do not state the frequency or details of the service required in the IEP. . . . Time periods covered for the trackers vary . . . , and there are many with overlapping dates, gaps, etc.”).
d. The District argues that only special education services and not related services need to begin by the child’s third birthday
128. The District moved for reconsideration of the Court’s decision that “All services must commence for a transition to be smooth and effective.” Defs.’ Mot. for Recons. 1, ECF No. 468 (citing Mem. Op. 39, ECF No. 444) (emphasis in original). In that motion, the District argues that related services do not need to be provided by the third birthday, but rather, “as soon as possible” after the third birthday. Mem. of Points and Authorities in Supp. of Defs.’ Mot. for Recons. 7˗8, ECF No. 468; Reply in Further Supp. of Defs.’ Mot. for Recons. 4˗5. ECF No. 473; id. at 3 n.1 (stating that District’s request is “appropriately viewed as one for providing related services to transitioning children with appropriate flexibility to best serve the child’s individual needs”). As stated, the Court granted the District’s motion and ruled that “the appropriate standard for implementation of an IEP shall be determined post˗trial.” Order 1, ECF No. 480. Plaintiffs’ opposition to the District’s motion [470] addresses the flaws in the District’s argument. Indeed, the “as soon as possible” language comes from a regulation which is inapplicable in this context because it is subject to the more specific requirement that the IEP be implemented by the third birthday. See Opp’n to Defs.’ Mot. for Recons. 10–12, ECF No. 470; Reply in Further Supp. of Defs.’ Mot. for Recons. 4, ECF No. 473.
129. No evidence was presented at trial that causes this Court to deviate from its conclusion that all services must begin by the third birthday of a child transitioning from Part C to Part B services.
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130. The District suggested at trial and argued in post-trial filings that if an IEP provides for a related service to occur once a month, the service can occur any time over that month, and therefore the related service need not start by the child’s third birthday. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 123 (arguing that a definition of “smooth and effective” that requires all services to be delivered by the child’s third birthday is “unworkable and thus inappropriate”); Trial Tr., Nov. 12, 2015, 99:5–12 (District’s counsel: “In a number of those cases the child’s IEP date—let’s say it takes effect on May 1st, and it contains an educational piece and then a related service. The related service is provided once—it’s provided, according to the IEP, it’s supposed to happen once a month. Does it violate the IDEA if that related service occurs on the 16th of that month?”); Trial Tr., Nov. 16, 2015, 74:17–20 (District’s counsel: “[P]laintiffs’ arbitrary rules . . . exist almost exclusively around when a related service is to be provided once a month . . . .”). That argument fails for numerous reasons, as detailed below.
131. First, broadly speaking, the District’s position amounts to an argument that special education services, but not related services, must start by the child’s third birthday. However, as already mentioned, see supra para. 125, there are numerous District documents that state that services must begin by the third birthday, and none of them add a caveat to distinguish special education services from related services. The District contends that “[t]his argument is a red herring [because] [t]he quoted materials and deposition testimony do not distinguish between educational and related services under IDEA . . . and represent nothing more than generalized statements regarding Part C to Part B transition.” Reply in Further Supp. of Defs.’ Mot. for Recons. 5, ECF No. 473. Contrary to this argument, Dr. Freund has testified that implementation of an IEP means “[t]he child was placed in whatever related, if any, services were being provided.” Freund Dep. 142:7–18, Oct. 1, 2014, Pls.’ Ex. 22. Moreover, there is nothing in the
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law that says that special education services must be implemented by the third birthday, but that related services do not. The IEP must be implemented by the third birthday and related services are part of the IEP. When the District tells parents that “If eligible, services shall begin on the child’s 3rd birthday,” see OSSE Early Childhood Transition Guidelines, Pls.’ Ex. 46, at DL2014 109, 120, there is no reason that a parent should interpret the District’s statement to apply to special education services, but not the related services necessary to benefit from those educational services. Indeed, related services are services “as may be required to assist a child with a disability to benefit from special education.” 20 U.S.C. § 1401(26)(A); see also Family Care Manual, Pls.’ Ex. 72, at DL2014 194 (stating Part B “[o]nly provides nursing or medical care services [i.e., related services] that are considered necessary for the child to access educational programs”).
132. Second, the District looks to the “present continuous tense” of 20 U.S.C. § 1412(a)(0) and 34 C.F.R. § 300.124(b), which state that a transition from Part C to Part B is smooth and effective when, by the child’s third birthday, an IEP “has been developed and is being implemented for the child.” Defs.’ Reply in Further Supp. of Defs.’ Mot. for Recons. 3. Defendants interpret this language to suggest that all services do not have to be provided by a child’s third birthday, but rather, that related services are “made available” by a child’s third birthday. Id. In the Court’s opinion, however, an IEP is only being implemented at the time that the child is receiving the services prescribed in the IEP. See, e.g., 2015 Dunst Direct ¶¶ 64, 121– 23; see also Pls.’ Opp’n to Defs.’ Mot. for Recons. 7–9, ECF No. 470 (citing support). Indeed, the point of the smooth and effective transition requirement is to ensure that children do not experience a disruption in service. Id. In sum, the District has drawn a line between educational services and related services which is not supported by the language or purpose of the statute.
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133. Third, the District argues that because a child’s birthday may fall on a weekend or summer holiday, when services are not available, or because certain events may occur that prevent a child from receiving services on the third birthday (for example, if the child is sick), the District need not provide all services by the third birthday. Reply in Further Supp. of Defs.’ Mot. for Recons. 3–4, ECF No. 473. However, the potential for those events to occur does not mean that the District is relieved of its statutory obligations. When a child’s birthday falls on a weekend or summer holiday, assuming that the child does not qualify for summer services, see infra para. 153, then the services should be provided on the next school day—it is that simple. Adopting the District’s proposed rule would in practice mean that there is no actual due date.
134. It bears noting that OSSE’s reporting practices regarding Part C services are at odds with its argument that it need not provide all Part B services by the child’s third birthday or that it is impractical to do so. The OSSE Part C program reports to OSEP that services have been timely provided to a child only when all services have been provided by the Part C deadline. Trial Tr., DeHaan Test., Nov. 13, 2015, 18:9–19:9.
135. Fourth, the District essentially argues that compliance must be assessed on a childby-child basis. See Defs.’ Reply in Further Supp. of Defs.’ Mot. for Recons. 6, ECF No. 473, (“[I]t is also important to appreciate that the decision of how to implement an IEP is necessarily child-specific.”), id. at 7 (“The IDEA is a statute that rejects bright lines and cookie cutter approaches.”). This decision relates to the District’s obligation to have in effect policies, procedures, and practices to ensure that, for transitioning children, the IEP is being implemented and a FAPE is available by the child’s third birthday. The impact of any particular delay on any particular child is not addressed herein.
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136. Regardless, there is little difference between the parties in terms of the evidence on this issue. In assessing the District’s performance, plaintiffs conservatively assessed whether children received their services within 14 days of their third birthday or within 14 days of the start date for services in the IEP if the child’s birthday was over the summer. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 41–56, ECF No. 514-2. Similarly, Dr. Maisterra testified that 14 days is a reasonable period of time for related services to begin and the District itself assessed whether related services began within 14 days in its own audits. See Maisterra Dep. 345:12–15, July 2, 2015, Pls.’ Ex. 18.
2. The District Is Failing to Provide Smooth and Effective Transitions to Large Numbers of Children
137. Plaintiffs reviewed 100 sample children identified by the District as receiving a smooth and effective transition by their third birthday. First, three children did not even receive notices of their location of services or confirmation that their IEP could be implemented at the location preferred by their parent by their third birthdays. Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 39–41, ECF No. 514-2, ECF No. 514-2. This is explicitly contrary to the District’s own policy. See Early Stages Evaluation Procedures: Transition, Early Stages Manual, Pls.’ Ex. 63, at DL2015 2073 (“[I]t is essential that a Location of Service (LOS) letter is offered, dated, shared with the parent and uploaded in SEDS all before the child’s third birthday. If this documentation is missing, OSSE will assume that the standard was not met.”).
138. Second, 21 children in the sample did not begin receiving all special education and related services within 14 days of the start date prescribed in their IEPs. Pls.’ Post-Trial
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Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 41–56, ECF No. 514-2.5
139. Third, the District applies the same parental delay standard with regard to transitions as it does with regard to other eligibility determinations. Proddutur Dep. 225:20– 226:3, July 2, 2014, Pls.’ Ex. 18. Therefore, the District is over-counting parental delay with transitions just as it is with other eligibility determinations. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 57–59, ECF No. 514-2.
140. Based on this information, Dr. Cupingood determined that almost 30% of transitioning children did not receive smooth and effective transitions. 2015 Cupingood Direct ¶ 73.
141. As described below, see infra paras. 153–56, the delays are even worse for children who are scheduled to transition over the annual summer break because they are not receiving appropriate consideration for summer services.
142. The District also produces data to OSEP related to smooth and effective transitions. The data are prepared in nearly the same way as the data produced for this case. Proddutur Dep. 269:5–270:4, July 2, 2014, Pls.’ Ex. 18. Accordingly, the data produced to OSEP are defective for all of the reasons described above.
5 If a child did not timely receive services because the child was not promptly enrolled by the parent at the offered site, and the District had otherwise made reasonable efforts to ensure a smooth and effective transition, the District should not be held responsible for that delay. In preparing these data, plaintiffs did not count a transition as untimely where the delay in the commencement of services was attributable to a delay in the child’s enrollment in the school where services were to be provided.
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G. THE DISTRICT’S POLICIES, PROCEDURES, AND PRACTICES ARE FLAWED 1. Generally
143. As described above, the District’s policies, procedures, and practices have failed to ensure that children are being identified and provided with a FAPE and that they timely receive eligibility determinations and smooth and effective transitions. The District has used flawed methods to calculate its statistics that purport to show otherwise.
144. Dr. Dunst testified based on the failures he identified, “the District does not have an adequate Child Find and related practices program to ensure that eligible children are provided [with a] FAPE.” 2015 Dunst Direct ¶ 165. He explained: “If it were running a program as required, available and accurate data would reflect such progress.” Id.; see also Trial Tr., Dunst Test., Nov. 12, 2015, 92:7–13.
145. The District contends that plaintiffs’ statistics are deficient because they are not accompanied by evidence of specific deficient policies and procedures. Trial Tr., Nov. 12, 2015, 20:4–24. However, many deficient policies and procedures are described above and below.
146. Plaintiffs concede that their evidence is less thorough than it was at prior stages in this litigation. Although it has made progress, the District is nevertheless required to have policies, procedures, and practices to ensure that all children who need special education and related services are identified and receive special education and related services, timely eligibility determinations, and smooth and effective transitions. The District’s failure to provide these services to hundreds of children represents serious systemic problems. The District needs to review its policies, procedures, and practices, in general, and those described herein in particular, in order to make the improvements necessary to comply with federal and District law.
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2. The District’s Policy, Procedures, and Practices Regarding Presumptive Eligibility Are Flawed
147. Following the 2011 trial and the parties’ subsequent briefing and agreement, the
Court ordered the following regarding presumptive eligibility:
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.
Order 1–2, ECF No. 323 (emphasis added).
148. Dr. Beers explained that presumptive eligibility “is more family-friendly because
it reduces the number of children who require assessments . . . .” 2011 Beers Direct ¶ 8, Pls.’ Ex.
1. It also reduces delay and prevents the disruption in services. 2015 Dunst Direct ¶ 147.
149. Despite the presumptive eligibility requirement and the District’s assertion that it
“treats transferring children as ‘presumptively eligible,’” Defs.’ Proposed Findings of Fact and
Conclusions of Law ¶ 79, the District reported very high and rising percentages of children
transitioning from Part C to Part B services who received additional assessments: 73.3% (Dec. 1,
2010, to Nov. 30, 2011); 82.4% (Dec. 1, 2011, to Nov. 30, 2012); 87.5% (Dec. 1, 2012, to Feb.
28, 2013); 95.6% (Mar. 1, 2013, to May 31, 2013); 92.7% (June 1, 2013, to Aug. 31, 2013); and
94.4% (Sept. 1, 2013, to Nov. 30, 2013). Defs.’ Objections and Responses to Pls.’ First Post-
Trial Requests for Produc., Pls.’ Ex. 31, at 21–22.
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150. These high levels of assessments do not comport with the presumptive eligibility requirement. 2015 Dunst Direct ¶ 150. Moreover, Part C has narrower eligibility criteria than Part B, see DeHaan Direct ¶ 6, further suggesting that such high numbers of additional assessments should not be necessary. 2015 Dunst Direct ¶ 150. However, this data is entirely consistent with the Early Stages Policy Manual as of October 2010, which states that, upon transition, “Part C children will have updated evaluations in the areas currently being addressed on their IFSP.” Pls.’ Ex. 69, at DL4 2110. Indeed, despite the Court’s order regarding presumptive eligibility, which issued in 2012 following the parties’ agreement, see Mem. Op. 5–6, ECF No. 322, Mr. Compagnucci explained that the District’s presumptive eligibility policy has not changed since 2010. Compagnucci Dep. 131:14–17, Aug. 12, 2014, Pls.’ Ex. 21.
151. Dr. Dunst explained that research findings and his experiences demonstrate that such a large number of additional evaluations is not necessary and would not be required if the District were appropriately treating Part C children as presumptively eligible for Part B services. 2015 Dunst Direct ¶ 150. He also explained that “[t]hese additional evaluations are most likely resulting in additional delay and burden on both the children and their families, and the District is also likely using resources to conduct unnecessary evaluations in cases where children would obviously be eligible for Part B preschool special education.” Id. at 151.
152. Mr. Compagnucci testified that he did not know if there are any children whose disabilities are so obviously unchanged since the initial Part C evaluation that it would not be necessary to do any further assessments. Compagnucci Dep. 128:14–129:2, Aug. 12, 2014, Pls.’ Ex. 21. Dr. Dunst stated that, based on over 40 years experience in this field, he is confident numerous children who would fall into that category. 2015 Dunst Direct ¶ 152.
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3. The District’s Policy, Procedures, and Practices Regarding Extended School Year Services Are Flawed
153. The District’s policy requires that every child with an IEP be evaluated for Extended School Year (“ESY”) services (services offered over the summer period) in order to provide a child with a FAPE. 2015 Maisterra Direct ¶ 8 (stating that Early Childhood Transition Policy “mandate[es] evaluation for entitlement to [ESY] services for those children whose birthdays fall during summer months”); OSSE Extended School Year Service Policy, Mar. 10, 2011, Pls.’ Ex. 47, at 1–2. During that ESY evaluation, “IEP Teams must use student data to quantify, to the extent possible, the likely impact of a break in service on educational benefit, through a rigorous discussion of critical skill regression and recoupment.” OSSE Extended School Year Service Policy, Pls.’ Ex. 47, at 3. In doing so, “LEAs should utilize any relevant current data for students for whom the LEAs cannot obtain three months of progress monitoring data from the current school year.” Id. at 3 n.6.
154. OSSE’s Part B Student Compliance Monitoring Tool, attached to the Special Education Monitoring and Compliance Manual, requires that each file include evidence that the child’s eligibility for ESY was properly evaluated and that:
If no evidence can be provided, [t]he IEP Team must convene or amend the IEP to complete the ESY criteria worksheet and determine the appropriate amount of compensatory education if the student requires compensatory education. OSSE must confirm that the LEA is correctly implementing the specific regulatory requirement (achieved 100% compliance) based on a review of updated data. August 2014, Pls.’ Ex. 51, attachment p. 11.
155. In direct contradiction to its policies requiring evaluation using existing data, the District has denied ESY services to the majority of transition children whose birthdays are in the late spring or summer, either with no explanation at all or stating that there is insufficient data upon which to make a determination. Plaintiffs’ Exhibit 111 includes the ESY Services Eligibility
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Worksheets for children in the 100 child transition sample who received an ESY eligibility determination between April and August 2013 (the period just prior to and during the summer). Of those 35 worksheets, there are 9 children for whom the worksheet is blank, except for marking the child as ineligible for ESY services, see Pls.’ Ex. 111, at 1, 2, 6, 22, 28, 29, 32, 34, 37; 10 children for whom the District concluded that there was not sufficient information to make a determination as to the child’s ESY eligibility and, therefore, denied ESY services, see id. at 3, 7, 11, 12, 14, 16, 21, 26, 27, 36; and 11 children for whom it is not clear whether the District concluded that there was not sufficient data to make a determination or that the LEA reviewed the data and concluded, without reference to data, that the child did not qualify for ESY services, see id. at 5, 8, 9, 17, 20, 23, 24, 30, 33, 35, 38. For these 11 children, it appears that the LEA is just using different phrasing to conclude that there is not enough data to make an ESY determination. See, e.g., Pls.’ Ex. 5, at 5 (“Evaluation team does not have enough data to qualify student.”). That totals 30 out of 35 ESY worksheets (over 80%) that demonstrate failure to evaluate properly a child for ESY services and failure to comport with the District’s policies.
156. By projecting services to begin in the fall for children transitioning from Part C to Part B services whose third birthdays are in the late spring or summer and simultaneously failing to evaluate their eligibility adequately for ESY services, the District is causing those children to experience a substantial disruption in services.
4. The District’s Policy, Procedures, and Practices Regarding Parental Delay Are Flawed
157. The District’s parental delay policies, procedures, and practices are flawed. Of course, the District should not be blamed for an untimely determination if the parent does not reasonably participate in the eligibility determination process. See 34 C.F.R. § 300.301(d)(1)
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(exception to the timeliness requirement if the “parent of a child repeatedly fails or refuses to produce the child for the evaluation”).
158. However, under its current policy, if District attempts to contact a parent three times, using more than one form of communication, at any time during the 120-day period, and the eligibility determination is issued after the 120 days, the District concludes that there was parental delay and omits this child’s referral from its statistics. See Proddutur Dep. 161:11– 162:12, July 2, 2014, Pls.’ Ex. 18; OSSE FFY 2012-Initial Evaluation Timeliness-Business Rules, Pls.’ Ex. 34, at DL2014 2262.
159. The District admits that it does not even consider whether it is fair to blame the parent for the delay. Proddutur Dep. 176:17–21, July 2, 2014, Pls.’ Ex. 18 ( “[Q]: Did you ever consider whether it’s fair to blame the parent for delay? [A]: No because we do not make judgment calls here. We go by the policy, and we try to make concrete measurement.”)
160. Moreover, Plaintiffs identified numerous children for whom the District stated the delay should be attributed to the parent but for whom most of the delay was attributable to the District or the determination was otherwise unreasonable. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 21–38, ECF No. 514-2.
161. The District should revise its parental delay policy so that it uses common sense and fairness to determine when any delay should be attributed to the LEA and when any delay should be attributed to the parent. 2015 Dunst Direct ¶ 103. For example, the parental delay rules should not allow attempts at parent contact that are clearly ineffective, such as repeat calls to a disconnected telephone number, to count towards meeting the minimum number of attempts at contact. Id. The revised rules should account for both delays by the LEA in
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attempting to contact the parent and in parental responsiveness, all of which should be documented. Id.
H. EXPERTS’ OPINIONS 162. Both parties’ special education experts agree that the District has shown substantial improvement. 2015 Dunst Direct ¶ 21; see generally 2015 Freund Direct. 163. Nonetheless, Dr. Dunst has continued to express substantial concerns regarding the District’s program. 2015 Dunst Direct ¶ 21. He described the District’s failures to use appropriate criteria for determining compliance with the benchmarks and concern over the resulting statistics. Id. at ¶¶ 22–140. He expressed concern over the District’s policies regarding parental delay, ESY services, and presumptive eligibility. Id. at ¶¶ 100–03, 141–53. He also expressed concern over the District’s staff and the quality of the data in the District’s databases. Id. at ¶¶ 154–58. He explained that:
As a result of the failure to comply with these numerical requirements, despite years of attempts to correct its noncompliance, and because of all the discrepancies in how enrollment, eligibility determinations, smooth and effective transitions, ESY, presumptive eligibility, and other Child Find requirements are defined and measured, the continued history of unreliable data collection and calculation of the indicators for OSEP and the Court-ordered benchmarks, and the lack of a complete understanding of the meaning of the IDEA Child Find requirements and how to accurately measure the OSEP indicators, there is a need for oversight and monitoring to ensure that these failures are remedied.
Id. at ¶ 164.
164. The District’s expert, Dr. Freund, is much more positive about the District’s program. However, as discussed, she did not analyze the District’s data that were reported in this case. Freund Dep. 87:13–15, Oct. 1, 2014, Pls.’ Ex. 22; Trial Tr., Freund Test., Nov. 16, 2015, 49:7–50:3. The District did not provide Dr. Freund with the underlying data that plaintiffs’ experts analyzed, and, therefore, she did not address the analyses performed by plaintiffs’ experts
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or opine regarding the accuracy of the District’s rates of identification, timely evaluations, timely eligibility determinations, or smooth and effective transitions, or the methods used in those calculations. Freund Dep. 198:13–199:10, 329:3–14, Oct. 1, 2014, Pls.’ Ex. 22. Dr. Freund based her opinion on the percentages and other information that the District presented to her and on her conversations with District representatives. See Trial Tr., Nov. 16, 2015, 35:7–36:16, 49:7–50:3; Freund Dep. 84:10-14, Oct. 1, 2014, Pls.’ Ex. 22.
165. In 2009, in describing what needs to be done to improve the District’s program, Dr. Freund wrote: “It would be essential that the expected documentation of data and tracking of children and outcomes be in place to determine the new system’s capability to effectively find, refer, identify, and place children from birth to age 5 who are eligible for Child Find services.” 2009 Freund Report, Pls.’ Ex. 28, at 13. When asked about that statement at her deposition, she said: “I’m suggesting that there be on-the-ground data. OSEP requires, for the most part, summative data. I’m suggesting that there be data with regard to not just what has to be reported to OSEP, but what the work is and how the work is being done in the District for children who are identified or referral [sic].” Freund Dep. 278:12–18, Nov. 23, 2009, Pls.’ Ex. 9. The Court agrees. Review of that on-the-ground data shows that the District has inadequate policies, procedures, or practices.
I. THE DISTRICT HAS BEEN OR SHOULD HAVE BEEN AWARE OF ITS FAILURE TO COMPLY WITH ITS LEGAL OBLIGATIONS 1. OSEP Concluded that OSSE Fails to Comply with the IDEA
166. Since at least 1997, OSEP determined that the District failed to comply with requirements of Part B of the IDEA and has worked with it to address its ongoing noncompliance. See OSEP Notice of Written Findings and Decision and Compliance Agreement, 63 Fed. Reg. 41370, 41371, Aug. 3, 1998, Pls.’ Ex. 201. As described below, prior to 2011, OSEP took
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substantial action toward the District to address its noncompliance with regard to timely evaluations and smooth and effective transitions. See infra paras. 183–90; see also Mem. Op. ¶¶ 52–59, ECF No. 294.
167. From 2011 through 2014, OSEP also determined that the District “needs intervention” in implementing IDEA requirements and imposed special conditions due to the District’s lack of compliance with the requirement to provide timely initial evaluations to 3-21year-olds. Letters from OSEP to OSSE, Pls.’ Ex. 226, at 1–4; Pls.’ Ex. 231, at 1, 3–5; Pls.’ Ex. 232 at 1, 4–6; Pls.’ Ex. 239, at 1, 5–7.
168. In 2011, OSEP’s needs intervention determination was also due to noncompliance with the requirement to provide smooth and effective transitions. Pls.’ Ex. 226, at 1–2; see also infra para. 190. In 2014, OSEP informed the District that it had satisfied its special conditions regarding those transitions. Letter from OSEP to OSSE, July 1, 2014, Pls.’ Ex. 240, at 2. However, the transition data upon which OSEP relied to reach that conclusion suffer from the data problems described above, see supra paras. 123–27, and therefore should not be relied upon. See Proddutur Dep. 269:5–270:4, July 2, 2014, Pls.’ Ex. 18 (stating that the calculation of data for OSEP and for this case are nearly identical). Moreover, OSEP does not review the District’s files in the way that plaintiffs have done for the purposes of this litigation. Trial Tr., Dunst Test., Nov. 13, 2015, 50:23–51:1.
169. On June 30, 2015, OSEP informed OSSE that the District “needs intervention in implementing the requirements of Part B of the IDEA” for the “ninth consecutive year” (the longest period in the country), and imposed special conditions on the District’s FFY 2015 IDEA grant awards due to the District’s lack of compliance with timely initial evaluations for children ages 3 to 21. Letter from OSEP to OSSE, June 30, 2015, Pls.’ Ex. 243, at 1, 4–8; Department of
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Education, 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Act, 2014, Dec. 2014, Pls.’ Ex. 182, at 186 (stating that in 2011, the District was the only jurisdiction that needed intervention for three or more years). OSEP stated that the District “did not meet the Special Condition imposed on its FFY 2014 IDEA Part B grant award to ensure timely initial evaluations and reevaluations,” an issue that “was initially identified in the 19982001 Compliance Agreement between D.C. and the Department [of Education], and has been included in the Special Conditions imposed on each IDEA Part B grant award from 2001 to the present.” Pls.’ Ex. 243, at 5. On July 1, 2015, OSEP again designated the District to be a “high risk” grantee. Letter from OSEP to OSSE, July 1, 2015, Pls.’ Ex. 244, at 1–2.
170. In addition, in his report regarding the 2012-2013 school year, the BlackmanJones Court Monitor described the District’s repeated failure to achieve backlog reductions related to timely evaluations required by OSEP. Report of the Monitor for the 2012-2013 School Year, Feb. 3, 2014, Pls.’ Ex. 265, at 12–14. The District’s progress report related to the period between October 1, 2013, and March 31, 2014, stated that it again failed to meet OSEP’s target related to evaluation backlog reduction and identified the same reasons for delay. OSSE IDEA Part B Special Conditions Progress Report #2, clarified June 5, 2014, Pls.’ Ex. 238, at DL 2015 315.
2. OSSE Concluded That DCPS Fails to Comply with the IDEA 171. OSSE also concluded that DCPS needs intervention. On August 21, 2014, OSSE stated that, “based on the totality of the LEA’s data and information,” DCPS “Needs Intervention in implementing the requirements of Part B of IDEA.” Letter from OSSE to DCPS, Re: FFY 2012 LEA Determination, Aug. 21, 2014, Pls.’ Ex. 262, at DL2014 7929. Indeed, the agency cited the “[h]istory, nature and length of time of any reported noncompliance.” Id. Specifically,
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OSSE noted the LEA’s performance was lacking with respect to timely evaluations for 3-21year-olds and smooth and effective transitions from Part C to Part B. See id. DCPS’s overall rating was 42%, which results from its overall failure to comply with IDEA requirements, a part of which are the issues relevant to this case. Id. at DL2014 7933; see also David Catania, Reforming Special Education, Pls.’ Ex. 271, at PL POST-TRIAL 2110 (“In the most recent performance determination for special education, as required by federal law, DCPS only received a 42% rating—the lowest among all public schools—barely escaping substantial intervention, which would have required the District to withhold funding or take legal enforcement action.”).
3. Obvious Flaws in the District’s Policies, Procedures, and Practices Persist 172. Many of the flaws in the District’s data should have been obvious to its leadership. For example, there is no justification for choosing to report enrollment data based on the 2010 census figure, despite the fact that OSEP does not do so and the District uses the annual estimated census figure in its other reports to OSEP, see supra paras. 86–95, especially after plaintiffs brought this issue to the District’s attention in July 2014. See Dunst Expert Report, July 25, 2014, Pls.’ Ex. 25, at 9–11. The District claims that it reports its data according to OSEP’s requirements, see Maisterra Dep. 61:3–19, June 2, 2014, Pls.’ Ex. 14, but then deviates from the manner in which OSEP reports data for this metric without explanation. 173. In addition, it is a matter of concern that the District reports children with IEPs as receiving services by their third birthdays, see supra para. 126, when their own studies show that children often do not receive their related services within 14 days, and their own documents require that services begin by the third birthday. See supra para. 125. 174. The District also made corrections to its statistics and issued new training material after plaintiffs raised issues in this case. See, e.g., Compagnucci Dep. 130:3–131:13, Aug. 12,
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2014, Pls.’ Ex. 21 (explaining that he issued a new training document on presumptive eligibility as a result of plaintiffs’ deposition). The District should be discovering such flaws on its own. This case has been going on long enough that the District should have thoroughly examined and improved its policies, procedures, and practices without the need for additional oversight.
J. THE DISTRICT VIOLATED THE REHABILITATION ACT FOR THE PERIOD UP TO MARCH 22, 2010 1. The Court Previously Concluded that the District’s Actions Prior to March 2010 Violated the Rehabilitation Act
175. As described above, see supra pp. 6–7, the Court found the District liable for violating the IDEA and District law through April 6, 2011, with regard to all plaintiffs. The D.C. Circuit vacated that decision; the Court now finds the District liable with regard to the four plaintiff subclasses’ IDEA and District law claims.
176. The Court also previously found the District liable for violating the Rehabilitation Act through April 6, 2011. Mem. Op. 23, Aug. 8, 2010, ECF No. 198 (“The Court finds that, at least through and including the year 2007, defendants knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations, in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).”); Mem. Op., Nov. 16, 2011, ECF No. 294, ¶¶ 131–33 (“[F]rom 2008 to April 6, 2011 . . . the District of Columbia’s special education policies were a gross departure from accepted educational practices throughout the country . . . [and the District] knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations.”). Those findings were vacated by the D.C. Circuit on class certification grounds. After the case was remanded, the Court ruled for the District on summary judgment for plaintiffs’ pre-March 2010 Rehabilitation Act claims;
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however, at the summary judgment phase, the Court did not resolve the Rehabilitation Act claims up to March 22, 2010. See Mem. Op. 14–15, June 10, 2015, ECF No. 444.
177. Accordingly, while the Court ruled for the defendants’ on summary judgment for plaintiffs’ Rehabilitation Act claims after March 22, 2010, the claims before that date were relitigated at trial.
2. The District Essentially Concedes That Its Program Was Seriously Deficient Prior to March 2010
178. The District essentially conceded that its program was seriously deficient before it issued its Evaluation, Transition, and Child Find policies on March 22, 2010. Defs.’ Mot. for Summ. J. 39, ECF No. 417 (“The systemic deficiencies that existed at the time this lawsuit was filed no longer exist.”); Mem. in Opp’n to Pls.’ Mot. for Partial Summ. J. and J. Pursuant to Rule 52(c) 3, ECF No. 424 (“That is not to say that the District’s IDEA preschool Part B program was not underperforming in certain respects during the period of July 21, 2005 to December 31, 2007; that general observation is not in dispute.”); Trial Tr., Apr. 7, 2011, Pls.’ Ex. 7, 79:11–14 (District’s counsel: “We’ve never denied that the District’s system for providing special education and related services to three-to-five-year-olds was broken for a long time.”); E-mail from Tameria Lewis, then the OSSE Assistant Superintendent for Special Education, to Kerri Briggs, then the OSSE State Superintendent, Jan. 27, 2010, Pls.’ Ex. 122, at 3 (“The actual performance data in both [the District’s Memorandum of Agreement reports and Annual Performance Reports to OSEP] are awful, so our best hope is to describe in as much detail as possible all of the actions we have taken in the last year to improve compliance in the APR.”).
179. Moreover, in the defendants’ proposed findings of fact and conclusions of the law, defendants do not dispute the merits of plaintiffs’ pre-2010 Rehabilitation Act claims. Instead, they argue solely that plaintiffs cannot prevail on these claims because they are moot. See Defs.’
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Proposed Findings of Fact & Conclusions of Law ¶ 152, ECF No. 513 (“Accordingly, the Court has no authority to reach the merits of these claims.”).
180. As described in the Court’s accompanying Memorandum Opinion issued on this date, plaintiffs’ pre-2010 Rehabilitation Act claims are not moot because the voluntary cessation exception to the mootness doctrine applies. The Court therefore has jurisdiction to reach the merits of these claims, and finds that each plaintiff subclass prevails.
3. The Parties’ Special Education Experts Agree that the District’s Program Was Seriously Deficient prior to March 2010
181. In her 2009 expert report, the District’s expert extensively described the absence of a comprehensive Child Find system and the District’s overall misunderstanding of and disregard for federal law:
This overall misunderstanding of the requirements of the federal law, compounded with a seeming historical lack of cooperation and discussion between the administrators and service providers of Part C, Part B, DCPS, and DHS, reflects the difficulties identified in meeting the obligations of IDEA Parts C and B.
The absence of a comprehensive Child Find system clearly has prevented identification, location, and referral of children who may need early intervention or special education services.
2009 Freund Report, Pls.’ Ex. 28, at 2–3; see also id. at 12–13 (“While I am certain that the time spent in a review of the program’s history was insufficient to allow me to capture every detail of the District’s Child Find history since 2000, there was ample material for me to determine 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. . . . And it appears that across several years, the system’s various leadership teams did little to correct the seemingly inefficient and ineffective practices to bring about greater access and outcomes for families and children in need of IDEA Part C and B services.”); Test. of Maxine Freund ¶ 2, Mar. 16, 2011,
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Pls.’ Ex. 3 (“The District’s Part B Child Find system has a troubled history of failing to identify, locate, and provide services to eligible children aged three through five.”); Trial Tr., Freund Test., Nov. 16, 2015, 22:9–27:4.
182. Dr. Freund also informed the District that its policies were “problematical, misaligned and in need of improvement.” E-mail from Maxine Freund to Ellen Efros, OAG, Aug. 18, 2009, Pls.’ Ex. 119, at 4. In preparing her 2009 expert report, Dr. Freund stated that she was provided “incomplete documents, drafts, unsigned MOUs, and identified practices that did not benefit the systems involved in Child Find.” Id.
4. OSEP Repeatedly Informed the District That Its Child Find Program Was Seriously Deficient Through March 2010
183. Since at least 1997, OSEP determined that the District failed to comply with the requirements of Part B of the IDEA and has worked with the District to address its on-going noncompliance. See OSEP Notice of Written Findings and Decision and Compliance Agreement, 63 Fed. Reg. 41370, 41371, Aug. 3, 1998, Pls.’ Ex. 201. On March 16, 1998, OSEP entered into a Compliance Agreement with DCPS mandating full compliance with the requirements of Part B of the IDEA. Id. at 41370–71. According to the Agreement, DCPS was required to “ensure and document that no later than three years after the effective date of this Agreement . . . [a]n initial evaluation that meets the requirements of sections 614(a)(1), (b), and (c) of Part B of IDEA is completed for all children with disabilities” and that “[a] Child-Find system is established which identifies and locates all children with disabilities . . . .” Id. at 41374. The District was also required to
Develop policies and procedures to ensure a smooth transition for those individuals participating in the early intervention program under Part H [now Part C] of the IDEA who will participate in preschool programs, including a method for ensuring that when a child turns three, an IEP or IFSP has been developed and implemented by the child’s third birthday as required by section 612(a)(9) of Part B of IDEA.
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Id. at 41380. OSEP also required the District to address deficiencies in the provision of related services. Id. at 41376–77; see also Mem. Op. ¶¶ 52–53, ECF No. 294.
184. In 2001, OSEP determined that DCPS had not met the requirement for timely initial evaluations. See Letter from OSEP to DCPS, Nov. 6, 2001, Pls.’ Ex. 202, at DL 8138–39. Based on this determination, OSEP designated DCPS as a “high risk” grantee and attached Special Conditions to its FFY 2001 grant under Part B. Id. at DL 8139. Among the Special Conditions were requirements to ensure that DCPS conduct timely initial evaluations by identifying the reasons that its current processes were inadequate and subsequently developing and implementing appropriate procedures. See id. at DL 8154–55.
185. In each subsequent year through 2008, OSEP cited the District for its failure to comply with the Special Conditions related to the provision of timely initial evaluations and extended the Special Conditions into the following fiscal year. See Letter from OSEP to DCPS, July 25, 2002, Pls.’ Ex. 204, at DL 8186–87; Letter from OSEP to DCPS, Sept. 30, 2003, Pls.’ Ex. 205, at DL 8204–05; Letter from OSEP to DCPS, Sept. 17, 2004, Pls.’ Ex. 206, at DL 8245– 46; Letter from OSEP to DCPS, Aug. 5, 2005, Pls.’ Ex. 207 at 3015; Letter from OSEP to DCPS, June 28, 2006, Pls.’ Ex. 208, at DL 8289, 8297–98; Letter from OSEP to DCPS, July 9, 2007, Pls.’ Ex. 209, at DL 8318; Letter from OSEP to OSSE, July 9, 2008, Pls.’ Ex. 210, at DL 8365; see also Mem. Op. ¶ 55, ECF No. 294.
186. On June 1, 2009, OSEP stated that the District “needs intervention in meeting the requirements of Part B of the IDEA,” because the District “failed to meet the longstanding Special Conditions imposed on its FY 2008 grant under Part B of the IDEA related to . . . timely initial evaluations.” Letter from OSEP to OSSE, Pls.’ Ex. 211, at CF-DL 16913. As a result, OSEP decided to withhold 20% of the District’s FFY 2009 funds, stating:
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Given the nature of the noncompliance noted in this letter and that D.C. has had Special Conditions placed on its grant award under Part B of the IDEA since 2001, the Department has concluded that D.C. would be unable to correct its problems in one year. D.C. previously entered into a compliance agreement with the Department under the IDEA from 1998-2001, and it did not result in compliance. We therefore feel compelled to take a more serious enforcement action based on the magnitude of the noncompliance with the requirements of Part B of the IDEA and the length of that noncompliance. The Department has significant concerns about D.C.’s inability to correct areas of longstanding noncompliance that directly affect the appropriate provision of special education and related services to D.C.’s children with disabilities. As a result, . . . the Department intends to withhold 20 percent of D.C.’s FFY 2009 funds reserved for State-level activities . . . until D.C. has sufficiently addressed the areas in which it “needs intervention.”
Id. at 16916; see also Mem. Op. ¶ 56, ECF No. 294 (quotations omitted).
187. On June 16, 2009, OSSE asked OSEP to reverse its decision to withhold funds,
noting that it was “a new agency with new leadership resolute in its commitment to correcting
the identified areas of noncompliance . . . .” Letter from OSSE to OSEP, Pls.’ Ex. 212, at DL2
2172. OSEP declined, stating:
[T]he Department can no longer delay more serious enforcement action because of new leadership or a new agency. DC has a long history of turnover in the administration of the school system as a whole and in the administration of its special education program in particular. In the last three years, there have been four special education directors. In prior years when we have declined to take more serious enforcement action because new leadership had just arrived, the District continued to fail to meet many of the basic requirements of Part B of the IDEA. While the State organization and leadership changes, deficiencies in addressing the needs of children with disabilities remain, and many continue to be denied the free appropriate public education which they are entitled to under Part B of the IDEA.
Letter from OSEP to OSSE, June 30, 2009, Pls.’ Ex. 213, at DL2 2176–77; see also Mem. Op. ¶
57, ECF No. 294.
188. OSEP also expressed its reluctance to enter into another agreement with the
District:
We have entered into agreements with DC before with little result. For example, every year since FFY 2001, . . . DC has assured the Department that it will meet all
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grant terms and conditions and all applicable requirements, but it has not carried out its commitments. Agreements alone with no consequences have repeatedly failed to result in DC achieving compliance with critical requirements of Part B of the IDEA. Letter from OSEP to OSSE, June 30, 2009, Pls.’ Ex. 213, at DL2 2177. 189. Later that year, OSEP and OSSE entered into a Memorandum of Agreement “to establish benchmarks and reporting requirements . . . to bring the OSSE into substantial compliance with the IDEA” and “to resolve their dispute over the status of State-level funds withheld by the Department from the FFY 2009 Part B grant award.” Memorandum of Agreement, Dec. 7, 2009, Pls.’ Ex. 220, at CF DL 19357. According to the agreement, OSSE would only receive the withheld funds after it met certain benchmarks. Id. at CF DL 19367. Among those benchmarks, OSSE was required to demonstrate increasing compliance with the requirement to provide timely initial evaluations and placements to children with disabilities, as well as a reduction in the backlog of untimely initial evaluations. Id. at CF DL 19359–61; see also Mem. Op. ¶ 58, ECF No. 294. 190. On June 3, 2010, OSEP determined, for the fourth consecutive year, that the District “needs intervention” in complying with the requirements of Part B of the IDEA. Letter from OSEP to OSSE, Pls.’ Ex. 214, at DL2 9649. OSEP made its determination after noting, the District’s failure to provide valid and reliable FFY 2008 data for early childhood transition rates and its failure to comply with the Special Conditions related to providing timely initial evaluations and re-evaluations. Id. at 9649–50. OSEP specifically cited the District’s report that “its best available data indicate 8% compliance” regarding the smooth and effective transition requirement. Id. at 9649; see also Mem. Op. ¶ 71, ECF No. 294.
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5. The District Failed to Provide Special Education and Related Services to Thousands of Children Prior to March 22, 2010
191. In 2006, the Court held that plaintiffs’ allegations are sufficient for a prima facie
claim that defendants’ conduct was “grossly out of line with governing standards.” Mem. Op. 4,
ECF No. 55. In doing so, the Court referenced the fact that the District ranked last among states
in the provision of special education services to preschool-age children. Id.
192. Thereafter, the Court held that, at least through 2007, the District failed to ensure
that disabled preschool-age children were identified and received special education services in
violation of the IDEA and District law. Mem. Op. 13–19, ECF No. 198. The Court described
numerous agreed upon facts regarding deficiencies in the District’s Child Find program:
The parties agree that in 2007, 5.74% of children ages 3 through 5 nationwide received special education and related services under Part B of the IDEA.
The parties agree that in 2007, the District of Columbia served 2.94% of its 3- to 5year- olds under the IDEA, which was the lowest rate in the country. . . . The parties agree that between 1992 and 2007, the District of Columbia served 2-3% of its preschool population each year under the IDEA.
The parties disagree as to plaintiffs’ initial assertion that “defendants have served approximately half the number of children ages 3 through 5 in the District of Columbia likely to be eligible for preschool special education under part B [as of 2007].” . . .
Defendants agree that based on the data in 2007 and earlier, this is true; defendants only object to post-2007 data.
The parties agree that between 2000 and 2009, “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. . . . The parties agree that, at least through and including the year 2007, defendants’ public awareness and outreach efforts were unlikely to result in a substantial increase in the number of referrals to preschool special education. . . . The parties agree that, at least through and including the year 2007, defendants’ refusal to accept and act on referrals made by primary referral sources was impeding identification of children eligible for preschool special education. . . . The parties agree that, at least through and including the year 2007, [d]efendants have pursued the same Child Find activities for several years
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without achieving a significant increase in the number of preschool-age children served under Part B. Mem. Op. 14–15, 17, ECF No. 198 (quotations omitted). 193. From 1992 to 2007, the District served, on average, around two to three percent of its pre-school age population. 2015 Dunst Direct ¶ 45. Over that period, the District was pursuing the same Child Find activities for years without achieving a significant increase in the number of preschool-age children served. Id. 194. The 2.94% that the District reported in 2007 was the lowest percentage in the country. 2015 Dunst Direct ¶ 46. That year, 43 states and Puerto Rico served over 5% of their three-to-five-year-old populations. Data Accountability Center, Pls.’ Ex. 176, at CF-DL 14047– 48. The national average was 5.74%. Id. at CF-DL 14048. In 2008, the District’s percentage of children served fell to 2.72, and again was the lowest percentage in the country. Data Accountability Center, Pls.’ Ex. 177, at 1–2; 2015 Dunst Direct ¶ 46. That year, 5.68% of children aged three to five nationwide received Part B special education services. Id. at 2. 195. Thereafter, the District’s percentage increased, but remained seriously deficient, standing at 3.3% in 2009 and 5.4% in 2010. U.S. Department of Education 33rd Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, 2011, Pls.’ Ex. 179, at 95; U.S. Department of Education 34th Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, 2012, Pls.’ Ex. 180, at 101. The District should have been providing special education and related services to at least 8.5 percent of three-to-five-year-old children. See supra paras. 59–82. 196. Through March 22, 2010, the District was still failing to serve hundreds of children annually. In 2010, for example, there were 17,605 three-to-five-year-old children in the District. See supra paras. 87, 89. The District reported that 957 children received special
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education and related services at that time. Part B 2010 Child Count Data, Mar. 4, 2011, Pls.’ Ex. 185, at DL4 2051. To satisfy the 8.5% benchmark in 2010 alone, the District would have needed to provide services to 1,496 children, or 539 additional children.
197. Dr. Freund and Dr. Dunst agree that the failure was caused by many deficiencies in the Child Find system generally, including weaknesses in the District’s public awareness and outreach efforts. 2015 Dunst Direct ¶¶ 45, 52–57; 2009 Freund Report, Pls.’ Ex. 28, at 2. For example, the District engaged in many public awareness activities, such as newspaper and radio announcements, which, standing alone, have been found ineffective nationally as Child Find strategies. 2015 Dunst Direct ¶ 53. Public awareness and outreach activities are most effective when they are used in conjunction with ongoing, direct contact with primary referral sources, such as physicians, hospitals, public health centers, and social services departments. Id.
198. In addition, the District’s outreach documents stated that referrals could be made by professionals such as pediatricians. 2015 Dunst Direct ¶ 54. Moreover, for at least part of the period prior to 2010, DCPS had a policy of not contacting a primary referral source after an eligibility determination is made. Johnston-Stewart Dep. 59:1–60:9, Nov. 13, 2008, Pls.’ Ex. 288; 2015 Dunst Direct ¶ 54. That practice most likely resulted in many children who were eligible for preschool special education not being located and screened for preschool special education. Id. The best practice is instead to acknowledge a referral and inform the person making the referral of the eligibility determination and the provision of services so that they will be more likely to make referrals in the future. Id.
199. Dr. Dunst recommended that the District make numerous improvements to its program to address the failure to identify and serve children with disabilities. 2015 Dunst Direct
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¶ 58. The Court ordered the District to make those improvements. Mem. Op. ¶¶ 151–60, ECF No. 294.
6. The District Failed to Provide Timely Initial Evaluations to over a Thousand Children prior to March 22, 2010
200. The District reported that only 45.2% of 3-21-year-olds received timely evaluations for FFY 2007 (2007-2008), 66.56% of children received timely evaluations for FFY 2008 (2008-2009), and 75.09% of children received timely evaluations for FFY 2009 (20092010). OSSE Part B APR, FFY 2007, Feb. 2009, Pls.’ Ex. 219, at DL 18912; OSSE Part B APR, FFY 2008, Feb. 2010, Pls.’ Ex. 221, at DL2 2242; OSSE Part B APR, FFY 2009, Feb. 2011, Pls.’ Ex. 222, at DL3 814.
201. In the three subsequent progress reports that include data for the remainder of the relevant period, the District reported that only 65.4%, 70%, and 68% of 3-21-year-olds who were referred received timely initial evaluations and placements. OSSE Memorandum of Agreement Progress Report #1 (Reporting Period Sept. 4, 2009-Dec. 4, 2009), Jan. 11, 2010, Pls.’ Ex. 223, at CF DL 19417; OSSE Memorandum of Agreement Progress Report #2 (Reporting Period Dec. 5, 2009-Mar. 5, 2010), Apr. 1, 2010, Pls.’ Ex. 224, at CF DL 19428; OSSE Memorandum of Agreement Progress Report #3 (Reporting Period Mar. 6, 2010-June 6, 2010), July 2, 2010, Pls.’ Ex. 225, at DL2 11378.
202. These evaluation data do not apply only to three-to-five-year-old children, but do include them. Moreover, eligibility determinations are typically issued promptly after the completion of evaluations. 2015 Dunst Direct ¶ 113. Therefore, the percentages of timely evaluations should be nearly identical to the eligibility determination statistics described below. Id. In fact, the data may be exactly the same, since, at least for the period from 2011 to the present, the District has reported data regarding the percentage of timely eligibility determinations, but
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referred to that data as the percentage of timely evaluations. Id.; see also Proddutur Dep. 76:11– 20, July 2, 2014, Pls.’ Ex. 18. As described below regarding eligibility determinations, this adds up to untimely evaluations and determinations for well over one thousand children over the years.
203. Over this period, delays were caused at least in part by the District’s failure to respond timely to referrals:
Sean, sadly I must tell you the number [of calls to Early Stages from families with complaints] is a bit staggering. Unfortunately, practically every other call is for families not receiving calls back. On a daily basis I receive at least 4. I had even taken it upon myself to change the return call time from the 24-48 hours to 48-72 hours, but, I must say, even with that, it still has not worked. I hate to be the bearer of bad news, but this has been the reality. Sorry. . . .
Unfortunately, most of the calls are from families/individuals who have not received any contact since making the initial referral. So, to further clarify, the families are just trying to get to the initial ASQ screening.
E-mails from Carole Pratt, DCPS, to Sean Compagnucci, DCPS, Nov. 30, 2010, Dec. 1, 2010, Pls.’ Ex. 127, at 1; see also 2015 Dunst Direct ¶ 114.
204. Dr. Dunst recommended that the District make numerous improvements in addition to those referenced above to address the failure to provide timely evaluations and eligibility determinations for children with disabilities in the District. 2015 Dunst Direct ¶ 115. The Court ordered the District to make those improvements. Mem. Op. ¶¶ 161, 164, ECF No. 294.
7. The District Failed to Provide Timely Eligibility Determinations to over a Thousand Children prior to March 22, 2010
205. The Court previously found it undisputed that “‘[f]rom 2000 through 2008, 62.02% of all children ages 3 through 5 received an eligibility determination within 120 days of referral.’” Mem. Op. 17, ECF No. 198; see also 2015 Cupingood Direct ¶ 16. This amounts to over one thousand children who did not receive timely determinations over that period. Id.
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206. Those same delays continued through 2010. Dr. Cupingood concluded that only 56.75% of preschool-age children received a timely eligibility determination from 2008 through 2010 (41.44% in 2008, 68.43% in 2009, and 55.23% in 2010). Id. at ¶ 19.
207. As described above, see supra para. 203, delays were caused in part by the District’s failure to respond timely to referrals. Dr. Dunst made several recommendations for improvement, which were ordered by the Court. See supra para. 204.
8. The District Failed to Provide Smooth and Effective Transitions to Many Hundreds of Children Prior to March 22, 2010
208. In 2010, the parties agreed that, at least between and including the years 2000 and 2007, the District’s actions “didn’t result in effective transitions for children into Part B from Part C.” Mem. Op. 19, ECF No. 198.
209. The District reported the following percentages of children who received smooth and effective transitions, which demonstrate poor performance and substantial variability in the District’s results: 17% for the 2004-2005 school year, 37% for the 2005-2006 school year, 40.62% for the 2006-2007 school year, 62% for the 2007-2008 school year, 8.22% for the 20082009 school year, and 30.25% for the 2009-2010 school year. District of Columbia Part B FFY 2004 SPP Response Table, Pls.’ Ex. 215, at DL 8066; District of Columbia Part B FFY 2005 SPP/APR Response Table, Pls.’ Ex. 216, at DL 8087; District of Columbia Part B FFY 2006 SPP/APR Response Table, Pls.’ Ex. 217, at DL 8110; District of Columbia Part B FFY 2007 SPP/APR Response Table, Pls.’ Ex. 218, at 8; OSSE Part B APR, FFY 2007, Pls.’ Ex. 219, at DL 18917; OSSE Part B APR, FFY 2008, Pls.’ Ex. 221, at DL2 2246; OSSE Part B APR, FFY 2009, Pls.’ Ex. 222, at DL3 821; see also Mem. Op. 20, ECF No. 198; 2015 Dunst Direct ¶ 124.
210. These low rates of compliance resulted in delays for many hundreds of children over the years. 2015 Dunst Direct ¶ 125. For example, for the 2008-2009 period, the District
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reported that only six children received a timely transition although 94 were referred. OSSE Part B APR, FFY 2008, Pls.’ Ex. 221, at DL 2246. The District reported that children received a transition an average of 139 days late. Id. at DL 2247. For 2009-2010, the District reported that 113 children did not have IEPs developed and implemented by their third birthdays. OSSE Part B APR, FFY 2009, Pls.’ Ex. 222, at DL3 822–23. That year, the District also reported:
[T]he range of days beyond the third birthday for a student to have an IEP developed and implemented is 1-572 days. The reasons for delay include LEAs not having adequate resources (evaluators) to conduct evaluations; a lack of understanding regarding the requirement to conduct evaluations by a child’s third birthday rather than applying the State-established timeline for initial evaluations (120 days); difficulty coordinating evaluations and eligibility meetings with parents; and inadequate systems for communication between Part C and Part B. Id. at DL3 823. 211. The Court found it undisputed that “at least through and including the year 2008, the District’s most significant challenge . . . [was] getting children through this [transition] process in a timely manner with the least amount of disruption to the child and family.” Mem. Op. 20, ECF No. 198 (citation omitted). Moreover, “at least through and including the year 2007, the procedures used by defendants to screen children exiting Part C were in many cases not necessary and delayed provision of preschool special education.” Id. (citation omitted). Indeed, “the screening procedures used by defendants with preschool children were unreliable and were not always aligned with accepted practices in the field.” Id. (citation omitted); see also 2015 Dunst Direct ¶ 126; Freund Dep. 49:14–51:16, Nov. 23, 2009, Pls.’ Ex. 9. 212. Over that period, DCPS generally did not use the assessment results provided by Part C to determine eligibility for Part B. 2015 Dunst Direct ¶ 126; see also Freund 2009 Expert Report, Pls.’ Ex. 28, at 2 (“This overall misunderstanding of the requirements of the federal law, compounded with a seeming historical lack of cooperation and discussion between the
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administrators and service providers of Part C, Part B, DCPS, and DHS, reflects the difficulties identified in meeting the obligations of IDEA Parts C and B.”); Sharif Dep. 83:15–85:3, Nov. 24, 2008, Pls.’ Ex. 8 (describing complaints from parents related to new rounds of Part B assessments where a child’s disability is clear). The policy of starting the eligibility determination process over from scratch necessarily resulted in delays in eligibility determinations for many children. 2015 Dunst Direct ¶ 126.
213. Moreover,during that period, the District struggled with “friction” between the Part C and Part B teams. E-mail from Dr. Maisterra to Jerri Johnston-Stewart, OSSE, Nov. 23, 2009, Pls.’ Ex. 121, at 1; see also E-mail from Dr. Beers to Dr. Maisterra and Jerri JohnstonStewart, Nov. 23, 2009, Pls.’ Ex. 121, at 3 (“After our meeting in October, I had thought that we were all on the same page. However, it did not appear to be the case at the Part C provider meeting on Thursday. . . . During the meeting, it became clear that no information from our October meeting (OSSE and DCPS) had been shared with any of the Part C providers.”).
214. Finally, according to the District, of the 186 children referred by Part C to Part B during the 2007-2008 school year, 137 children (74%) did not receive a timely transition due to their “parent[al] refusal to provide consent [which] caused delays in evaluation or initial services.” OSSE Part B APR, FFY 2007, Pls.’ Ex. 219, at DL 18918. Dr. Dunst concluded that such a rate is exceedingly high and raises questions about why the delay would be attributed to so many families. 2015 Dunst Direct ¶ 127.
215. Dr. Dunst recommended that the District make improvements in addition to those referenced above to address the failure to provide smooth and effective transitions. 2015 Dunst Direct ¶ 128. The Court ordered the District to make those improvements. Mem. Op. ¶¶ 162–63, 165, ECF No. 294.
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III. CONCLUSIONS OF LAW A. BACKGROUND 216. Plaintiffs allege that, in violation of federal and District law, the District failed to
implement policies, procedures, and practices to ensure that (1) preschool-age children with disabilities are identified for the purposes of offering special education; (2) preschool-age children with disabilities are timely evaluated for the purposes of offering special education; (3) preschool-age children with disabilities receive a timely determination of their eligibility for special education; and (4) children in the early intervention program under Part C of IDEA receive a smooth and effective transition to preschool special education under Part B by the child’s third birthday.
217. Plaintiffs are preschool-age children with disabilities as defined in the subclasses. See supra p. 5. Subclass 1 is represented by named plaintiffs D.L. and J.B. Subclass 2 is represented by named plaintiffs T.F. and H.W. Subclass 3 is represented by named plaintiffs D.L., H.W., and T.F. Subclass 4 is represented by named plaintiffs X.Y. and T.L. Mem. Op. 24– 25, ECF No. 389. The named plaintiffs and the subclasses that each of the named plaintiffs represent bring each of their claims against all defendants.
218. Defendants are the District of Columbia, Kaya Henderson, in her official capacity as the Chancellor of DCPS, and Hanseul Kang, in her official capacity as the State Superintendent of Education.6 In most instances, defendants are referred to collectively herein as the District. All of the defendants are liable for the reasons identified herein.
6 Other individuals were in those official roles at the time that this lawsuit was filed and since then. Federal Rule of Civil Procedure 25(d) provides for the automatic substitution of public officers when a public officer is a party to an action in an official capacity.
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219. As Chancellor, Ms. Henderson is responsible for the administration of the Local Education Agency (“LEA”) DCPS, including the implementation of District and federal laws related to special education, such as Part B of the IDEA. D.C. Code 38-174(a), (c)(3).
220. As State Superintendent, Ms. Kang supervises the State Education Agency (“SEA”) OSSE, serves as the chief state school officer for the District, and represents the District in all matters before the United States Department of Education. D.C. Code § 38-2601.01.
221. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. § 1331 and § 1367.
B. THE DISTRICT’S POLICIES, PROCEDURES, AND PRACTICES DO NOT SATISFY THE IDEA AND DISTRICT LAW
222. The District previously contended that it complied with its IDEA obligations as of March 22, 2010, because it issued three policies on that date. See Defs.’ Mot. for Summ. J. 1, ECF No. 417. That argument failed to grasp the scope of the District’s obligations under the IDEA. The relevant provisions of the IDEA do not merely require that the District issue policies. Rather, they require that the District implement policies and procedures that ensure identification and provision of a FAPE, timely evaluation, timely eligibility determination, and smooth and effective transition of preschool-age children with disabilities. See 20 U.S.C. § 1412(a)(1)(A) (requiring states to have “in effect policies and procedures to ensure that [a] free appropriate public education is available to all children with disabilities”); § 1412(a)(3)(A) (requiring a state to have “in effect policies and procedures to ensure that . . . [a]ll children with disabilities . . . are identified, located, and evaluated”); § 1412(a)(9) (requiring states to have “in effect policies and procedures to ensure that . . . [c]hildren participating in early intervention programs . . . and who will participate in preschool programs . . . experience a smooth and effective transition to those preschool programs . . . .”).
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223. In Cordero by Bates v. Pennsylvania Deptartment of Education, 795 F. Supp. 1352, 1361–62 (M.D. Pa. 1992), plaintiffs brought a class action under the IDEA and the Rehabilitation Act to challenge the defendant’s systemic failure to provide timely and appropriate placements to children with disabilities. That defendant argued that, despite the delays and difficulties in placing large numbers of children, the state had satisfied its IDEA duties, which were limited to “providing funds, promulgating regulations and reviewing individual complaints.” Id. at 1361. The court explicitly rejected the state’s narrow view of the scope of its responsibilities under the IDEA:
As defined by the IDEA, the state’s role amounts to more than creating and publishing some procedures and then waiting for the phone to ring. The IDEA imposes on the state an overarching responsibility to ensure that the rights created by the statute are protected, regardless of the actions of local school districts. . . . The state must assure that in fact the requirements of the IDEA are being fulfilled. Id. at 1362 (citations omitted). 224. The District has repeatedly acknowledged the need for its policies actually to achieve results. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 64, June 3, 2011, ECF No. 254 (“The District’s Part B system has begun to be built, and it needs time to be tested.”); Mem. Op. ¶ 68, ECF No. 294 (“Dr. Nathaniel Beers acknowledged that it would take at least three to five years to ensure that the recent reforms to the District’s special education policies and to the Early Stages Center are stabilized and headed in the appropriate trajectory.” (quotation omitted)); Test. of Maxine Freund ¶ 10, Mar. 16, 2011, Pls.’ Ex. 3 (“In sum, it is my expert opinion that the District has achieved several of its initial goals as it works to overcome the historic dysfunction in its Part B system, and has now established a strong structure of rules, regulations, policies, and procedures, administered by talented leadership and sufficiently staffed, that can serve as the foundation for a well-functioning and effective Part B system.”); Trial Tr.,
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Freund Test., Nov. 16, 2015, at 28:21–29:21, 32:13–15 (“[T]he backbone of the work . . . is about outcomes.”).
225. In accordance with the IDEA, the Court in its 2010 summary judgment decision and at the 2011 trial examined whether the District’s policies, procedures, and practices were actually ensuring that preschool-age children were being identified and receiving FAPE’s, were receiving timely evaluations and timely eligibility determinations, and that children receiving Part C services were receiving smooth and effective transitions to Part B services. Specifically, the Court examined evidence of the District’s rates of enrollment, timely evaluation, timely eligibility determination, and smooth and effective transition for preschool-age children. Mem. Op. 13–21, ECF No. 198; Mem. Op. ¶¶ 23–45, ECF No. 294. The Court held, on the basis of statistical evidence and the other evidence regarding the District’s program, that the District had failed to fulfill its duties under the IDEA and District law. Mem. Op. 13–21, Aug. 10, 2010, ECF No. 13–21; Mem. Op. ¶¶ 105–26, ECF No. 294.
226. Moreover, in its 2011 decision, the Court issued an injunction that required the District to meet benchmarks of at least 8.5% enrollment in special education and related services and at least 95% with respect to timely initial evaluations, timely eligibility determinations, and smooth and effective transitions, in order to comply with its IDEA and District law obligations. Mem. Op. ¶¶ 147–50, ECF No. 294. In doing so, this Court sought compliance, not perfection. See Mem. Op. 19, ECF No. 444 (“[T]his Court never sought to demand perfection, and instead
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found that the District failed to provide required services to significant numbers of preschool-age disabled children.”).7
227. The Court further required the District to show sustained compliance by satisfying all of the numerical benchmarks simultaneously during a period of three or four years. Mem. Op. ¶¶ 169–72, ECF No. 294. The injunction also imposed programmatic requirements, which would not terminate until the numerical benchmarks were met. Id.
228. Thus, the Court made clear that, in order to satisfy its obligations, the District could not simply meet programmatic requirements. It had to show that it its policies, procedures, and practices were working effectively.8 The Court recently repeated this point. See Mem. Op. 18–19, ECF No. 444 (“The question . . . is whether the District’s policies were successfully implemented, thus ensuring that the District met the required conditions.”).
229. The District claims that it has substantially improved its program and has high rates of statistical compliance. However, as described above, the District is still failing to comply with its obligations with regard to large numbers of preschool-age children. The District previously had such a low level of compliance that, despite its improvement, it is still failing to comply with federal and District law.
7 As described above, although the D.C. Circuit vacated the Court’s 2011 injunction based upon class certification issues, that decision did not cast into doubt anything with regard to the substance of the Court’s Memorandum Opinion & Findings of Fact and Conclusions of Law, or the injunction that issued therewith after trial. See ECF No. 295. Therefore, while the injunction is no longer valid, the District had ample notice of the Court’s reasoned opinions on issues critical to this case. See Mem. Op. 35, 37, ECF No. 444. 8 OSEP similarly assesses, on the basis of statistical data reported by the District, whether the District is complying with its obligations under the IDEA. See, e.g., Letter from OSEP to OSSE, June 23, 2014, Pls.’ Ex. 239, at 6–7 (“Although D.C. has made progress in ensuring timely initial evaluations and reevaluations and reducing the backlog of children with overdue initial evaluations and reevaluations, the State has not yet achieved compliance with the requirements in IDEA sections 612(a)(7) and 614(a) through (c) and 34 C.F.R. §§300.301(c)(1) and 300.303.”).
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230. Plaintiffs identified fewer programmatic failures than at previous stages in this case. That is in large part because the District has improved its program and therefore its flaws are not as obvious as they once were. For the reasons described above, see supra paras. 206–07, additional detail regarding the specific flaws in the District’s program that led to these statutory failures is impractical and unnecessary. See also Cordero by Bates v. Pa. Dept. of Educ., 795 F. Supp. at 1362–63 (stating that where evidence showed that “numerous handicapped children in the Commonwealth are not receiving free appropriate public educations” and that “significant numbers of handicapped children are made to wait inordinate amounts of time to obtain placements in private schools,” it was “well within [the Court’s] powers to declare that the Defendants’ special education system as well as its supervision and leadership under the [IDEA] are inadequate and to order injunctive relief to fix the problems”).
231. The District argues that plaintiffs raised issues with the District’s statistics, and made adjustments to the District’s statistics, which they did not raise or make at the 2011 trial. See, e.g., Trial Tr., Nov. 12, 2015, 19:8–10 (District’s counsel: “[T]he statistics that plaintiffs offer today are not the statistics that the Court credited in 2011. It’s not apples to apples.”). That is correct. In general, plaintiffs had no reason to assess the accuracy of the District’s statistics in 2011 because, at that time, the District’s own statistics demonstrated its failures. See, e.g., Mem. Op. ¶¶ 26–28, ECF No. 294. At this stage, the District produced statistics which purport to exceed the 2011 benchmarks. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 101, 109, 119 (relating to benchmarks for enrollment, timely eligibility determinations, and smooth and effective transitions). Therefore, plaintiffs looked more closely at those statistics, which ultimately exposed their flaws. Had plaintiffs done so previously, the District’s statistics for the previous period, see supra paras. 191–215, would almost certainly have been lower.
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232. The District also argues that plaintiffs’ statistics are inappropriate because they purportedly “turn on subjective determinations made by plaintiffs’ attorneys, and they use business rules that they have created themselves without the input of OSSE, DCPS, the Federal Government or any other state or local education agency.” Trial Tr., Nov. 12, 2015, 19:18–22; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 112 (“Plaintiffs employed a series of analytical assumptions that depart, in critical respects, from OSSE’s business rule for calculating [timely eligibility determinations].”); id. at ¶ 123 (“Unlike the District’s processes, Plaintiffs’ counsel’s work [in calculating timely transitions] was not driven by standardized business rules specifying the relevant records or the standards against which records are to be analyzed.”). However, as described herein, plaintiffs’ corrections to the District’s statistics are grounded in facts and law. For example, as required by the IDEA, all services must commence by the child’s third birthday. See supra paras. 123–25.
233. The District also argues that plaintiffs’ method of calculation “relies on malleable standards such as reasonableness, fairness, [and] common sense, instead of objective data points.” Trial Tr., Nov. 16, 2015, 68:15–17. First, it is not objectionable to rely on reasonableness, fairness, and common sense. Second, the only rule that plaintiffs proffer that is arguably subjective relates to parental delay. Plaintiffs believe that the District must revise its parental delay policy so that it uses common sense and fairness to determine when any delay should be attributed to the LEA and when any delay should be attributed to the parent, consistent with 34 C.F.R. § 300.301(d)(1) (“The timeframe described in paragraph (c)(1) of this section does not apply to a public agency if—(1) The parent of a child repeatedly fails or refuses to produce the child for the evaluation.”). For example, the parental delay rule should not allow attempts at parent contact that are clearly ineffective, such as repeat calls to a disconnected telephone
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number, to count towards meeting the minimum number of attempts at contact. The revised rule should account for both delays by the LEA in attempting to contact the parent and in parental responsiveness, all of which should be documented. Such a rule could be objective while looking to all of the relevant facts, rather than looking just at whether there were three attempts at communication using more than one form of communication. See Trial Tr., Dunst Test., Nov. 12, 2015, 109:18–21 (stating that standards in federal reporting “[s]hould be objective, but . . . need[] to account for all the variations that occur in real life situations”). That is preferable to the method that the District is currently using, which, as applied, unfairly attributes delay to parents and artificially inflates its resulting statistics. See supra paras. 158–60. This Court is not setting the precise parameters of the rule. Therefore, the District has the flexibility that it needs to craft a rule that will work for it.
234. The District also argues that plaintiffs’ approach is too time-consuming because it took plaintiffs’ counsel three months to prepare their analysis of individual children’s records. Trial Tr., Nov. 16, 2015, 66:22–67:2. Plaintiffs are not suggesting that the District regularly or even ever analyze children’s files as plaintiffs did. That was done for purposes of this litigation to understand the District’s compliance with the IDEA, how the District reached its statistical conclusions in practice, to identify flaws in that process, and to summarize large quantities of evidence for the Court. Now that the flaws are identified, the District should ensure that its data management system is able to track the relevant metrics so that it would not need to perform a child-by-child analysis in the normal course, although a similar type of analysis may still be useful as part of the District’s monitoring process.
235. The District suggests that if its statistics are in fact deficient, as plaintiffs argue, it is because the District was working toward compliance with the wrong rule in mind and that
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“[t]here’s nothing in the record to suggest that if the assumptions were to change, the processes wouldn’t work, or that the processes would subsequently violate the IDEA.” Trial Tr., Nov. 16, 2013, 71:9–73:8. For example, the District implies that if it needed to start the 120-day timeline when a non-parent referred a child, use the annual census estimates as a denominator, or ensure that children receive all of their special education and related services by their third birthday, it could do so and meet the required benchmarks. The Court looks forward to seeing such results. However, there is ample evidence that suggests otherwise. For example, as described above, see supra para. 117, the District has long set a goal of providing eligibility determinations to children in 60 (rather than 120) days, but, as of now, it is not even complying with its obligation to complete the process in twice that amount of time.
236. In sum, plaintiffs’ counsel analyzed the files of individual students in an effort to demonstrate the District is not complying with its affirmative obligations under the IDEA. Rather than disputing plaintiffs’ findings, the District argues that their method of analysis is invalid. In making this argument, the District overlooks this Court’s repeated rulings that the District’s compliance will be assessed with reference to the outcomes of its policies. See supra para. 53. The plaintiffs simply evaluated data the District provided to them, and the Court will credit their findings.
C. SUBCLASS 1 IDEA AND DISTRICT LAW CLAIMS 237. Subclass 1 alleges two claims under the IDEA and District law: (1) that the District failed to ensure that preschool-age children with disabilities receive FAPE’s and (2) that the District failed to ensure that preschool-age children with disabilities are identified for the purposes of offering special education services. These two claims hinge on the same fundamental allegation that, as a result of its deficient Child Find practices, the District is not ensuring that
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children with disabilities receive needed special education and related services. See Mem. Op. 11, ECF No. 482 (“As they always have, plaintiffs continue to use the enrollment figures as one of many potential ways to approximate the District’s success in identifying and locating disabled children . . . .”); Mem. Op. ¶ 119, ECF No. 294 (“Based on paragraphs 23–37 of the above findings of fact [including findings related to deficient enrollment numbers and the denial of a FAPE], the Court holds that, from 2008 to April 6, 2011 (the first day of trial), defendants failed to identify and provide timely initial evaluations to all preschool-age children with disabilities in the District of Columbia, in violation of 20 U.S.C. §§ 1412(a)(3)(A) and 1414(a)(1)(C).”); N.G. v. District of Columbia, 556 F. Supp. 2d 11, 16 (D.D.C. 2008) (“This mandate is known as the ‘Child Find’ obligation, an affirmative obligation of every public school system to identify students who might be disabled and evaluate those students to determine whether they are indeed eligible. As soon as a child is identified as a potential candidate for services, DCPS has the duty to locate that child and complete the evaluation process. Failure to locate and evaluate a potentially disabled child constitutes a denial of FAPE.”).
1. FAPE Claim 238. IDEA’s primary mandate is “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 . . . .” 20 U.S.C. § 1400(d)(1)(A). It is required to have “in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive . . . .” 20 U.S.C. § 1412(a)(1)(A); see also N.G., 556 F. Supp. 2d at 15–16 (“[Under the IDEA] all public education agencies are required to have in effect policies and
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procedures to ensure that: [a]ll children with disabilities . . . who are in need of special education
and related services, are identified, located and evaluated.” (citation omitted)).
239. The term “free appropriate public education” means special education and related
services that:
(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d).
20 U.S.C. § 1401(9); see also Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 203 (1982) (ruling that a state satisfies its requirement to provide a FAPE “by
providing personalized instruction with sufficient support services to permit the child to benefit
educationally from that instruction”).
240. District law, which incorporates the federal FAPE obligations, requires:
All local education agencies (LEA) in the District of Columbia [to] ensure, pursuant to the Individuals with Disabilities Education Act (IDEA), that all children with disabilities, ages three to twenty-two, who are residents or wards of the District of Columbia, have available to them a free appropriate public education (FAPE) and that the rights of these children and their parents are protected.
5-E D.C.M.R. § 3000.1; see also 5-E D.C.M.R. § 3002.1(a), (e) (stating that LEAs shall provide
a FAPE to each child with a disability).
241. The Court previously held that, through April 6, 2011, the District denied a FAPE
to a large number of children aged three to five years old in violation of the IDEA and District
law. Mem. Op. 15–16, 24 ECF No. 198 (through 2007); Mem. Op. ¶¶ 111–13, ECF No. 294
(through April 6, 2011).
242. After the D.C. Circuit vacated those findings of liability, the Court again found
that the District violated the IDEA and District law. The Court addressed the District’s failure to
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identify and did not explicitly address the FAPE allegations. Mem. Op. 11, ECF No. 444 (“Thus, plaintiffs have already shown and the Court has already found that there is no material dispute: Prior to 2007, the District failed to adequately identify children pursuant to its duties under the IDEA.”); id. at 14 (“[T]he Court finds that at least through and including the year 2007, the District’s actions constituted violations of the D.C. law as to each subclass.”); id. at 42 (“[P]laintiffs’ motion for partial judgment pursuant to Rule 52(c) from 2008 through April 6, 2011 will be granted as to plaintiffs’ claims under the IDEA and D.C. law . . .”). As described above, these two claims hinge on the same fundamental allegation. See supra para. 238.
243. In the joint pretrial statement, the District objected to plaintiffs’ FAPE claim on three grounds. See ECF No. 484, at 13. First, the District contends that “the generic denial of FAPE proposed is derivative of the subclass claims identified as Claims Two [identification], Three [timely eligibility determinations] and Four [smooth and effective transitions] in this Pretrial Statement.” Id. It is not objectionable or uncommon for the violation of one statutory provision to result in the violation of another. Moreover, in 2010 on summary judgment motions and in 2011 following the last trial, the Court held that the District failed to provide a FAPE to a substantial number of children with disabilities, see Mem. Op. 13–16, ECF No. 198; Mem. Op. ¶¶ 105–13, ECF No. 294, and also that the District failed to identify children with disabilities for purposes of providing them with special education services, Mem. Op. 16–19, ECF No. 198; Mem. Op. ¶¶ 114–23, ECF No. 294. The failure to identify, and the subsequent denial of a FAPE, differs from the harm defined in claims 3 and 4, that is, the failure to have eligibility timely determined and failure to be smoothly and effectively transitioned.
244. Second, the District contends that “no generic FAPE claim was pled in the Second Amended Complaint as a separate cause of action, and cannot be advanced by the subclasses as
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certified.” Parties’ Joint Pretrial Statement 13, ECF No. 484. That is not true. Plaintiffs claimed that: (1) “[t]he IDEA and its implementing regulations require that ‘[a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive . . . .’ 20 U.S.C. § 1412(a)(1)(A); see also 20 U.S.C. § 1400(d)(1)(A); 34 C.F.R. § 300.121; [and] (2) Defendants’ actions violate 20 U.S.C. § 1412(a)(1)(A) [requirement that FAPE be available to all children] . . . and the implementing regulations.” Second Am. Compl. ¶¶ 110, 114, ECF No. 398. Plaintiffs also claimed that the District violated their FAPE obligations under District law. Id. at ¶¶ 126, 128–30. Indeed, as described above, see supra para. 243, the Court ruled on plaintiffs’ FAPE claim in 2010 and again in 2011.
245. Third, the District contends that “[p]laintiffs’ claim, as proposed, would be contrary to established law in the Circuit, as a denial of FAPE does not automatically result from every violation under the IDEA.” Joint Pretrial Statement 13, ECF No. 484 (citing Leggett v. District of Columbia, 793 F.3d 59, 67 (D.C. Cir. 2015)). That is of course true: a procedural violation of the IDEA constitutes a denial of a FAPE only if it “‘results in loss of educational opportunity’ for the student.” Leggett, 793 F.3d at 67 (citing Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006)). However, in this case, a disabled student is clearly denied educational opportunities if the District fails to identify him or her at the outset. Indeed, if the District fails to identify a disabled student, then there will simply be no way that the student is afforded the necessary accommodations, thus resulting in a loss of educational opportunity and a substantive violation, rather than one of a nonactionable procedural nature. See id., at 67 (“[A] school district’s failure to comply with the procedural requirements of the IDEA will be actionable only if those procedural violations affected the student’s substantive rights.”
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(citation omitted)). The failure to identify a disabled student is therefore actionable as a denial of a FAPE. For all of these reasons, plaintiffs’ FAPE claim is viable.
2. Child Find Claim 246. The District is also required to have “in effect policies and procedures to ensure that . . . [a]ll children with disabilities residing in the State . . . and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” 20 U.S.C. § 1412(a)(3)(A). 247. District law adopts this requirement: “The LEA shall ensure that procedures are implemented to identify, locate, and evaluate all children with disabilities residing in the District who are in need of special education and related services . . . .” 5-E D.C.M.R. § 3002.1(d)); see also 5-E D.C.M.R. § 3002.3(a) (“The LEA shall ensure that procedures are in place to identify, locate and evaluate children with disabilities residing in the District or children who are wards of the District.”). 248. The Court previously held that, through April 6, 2011, the District failed to comply with its Child Find identification duties in violation of the IDEA and District law. Mem. Op. 18, 24, ECF No. 198 (through 2007); Mem. Op. ¶¶ 118–19, 121–22, ECF No. 294 (through Apr. 6, 2011); Mem. Op. 11, 13–14, 19–20, 42, ECF No. 444 (through Apr. 6, 2011, post-remand).
3. Measurement 249. In its previous decisions, the Court found the District liable on the FAPE and Child Find claims based on facts regarding the District’s inadequate enrollment rates of preschool-age children in special education services. See Mem. Op. 14–16, ECF No. 198; Mem. Op. 23–32,
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111, 119, ECF No. 294. See also infra para. 237. Thus, the Court has held that the enrollment rate is the relevant numeric measure for Subclass 1’s IDEA and District law claims.
250. A child shall be considered enrolled, not just when the child has an IEP, but when a child has started to receive all of the services identified in the IEP. 34 C.F.R. § 300.641(a) (“report the number of children with disabilities receiving special education and related services”); 34 C.F.R. § 300.644 (“report children with disabilities who are enrolled in a school or program . . . that—(a) Provides them with both special education and related services . . .”); OSEP EDFacts Submission System A ges 3-5, Pls.’ Ex. 183, at 6 (“Include all children with disabilities (IDEA) who are ages 3 through 5 receiving special education and related services according to an individual education program or services plan on the count date.”). Child Find requires not just policies, procedures, and practices that ensure identification, location, and evaluation, see 20 U.S.C. § 1412(a)(3)(A), but also that the District have policies, procedures, and practices that ensure that “a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” Id. Indeed, the entire point of the Child Find requirement is to provide services to children with disabilities. The District should record and track when children first receive special education and each related service required by an IEP.
251. In addition, based on paragraphs 86–95 above, the District’s enrollment percentage should be calculated based upon the U.S. Census Bureau’s estimated annual census figure for the District for all years between the decennial censuses.
4. Conclusion 252. Based on paragraphs 56–98, 143–146, 162–165, and 172–174 of the above findings of fact, the Court holds that, from April 7, 2011, to November 12, 2015 (the first day of
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the second trial), the District has (1) in violation of 20 U.S.C. § 1412(a)(1)(A) failed to have in effect policies and procedures to ensure that a FAPE is available to preschool-age children with disabilities in the District, and (2) and in violation of 20 U.S.C. § 1412(a)(3)(A) failed to have in effect policies and procedures to ensure that preschool-age children with disabilities in the District are identified, located, and evaluated for the purposes of offering special education services and that a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
253. Based on the same facts, the Court also holds that from April 7, 2011, to November 12, 2015 (the first day of the second trial), the District has, (1) in violation of District law (5-E D.C.M.R. §§ 3000.1, 3002.1(a), (e)), failed to ensure that a FAPE is available to preschool-age children with disabilities in the District, and (2) in violation of District law (5E.D.C.M.R §§ 3002.1(d), 3002.3(a)), failed to ensure that preschool-age children with disabilities in the District are identified, located, and evaluated for the purposes of offering special education and related services.
D. SUBCLASS 3 IDEA AND DISTRICT LAW CLAIMS 1. Timely Eligibility Determinations Claim
254. As described above, the IDEA Child Find provision requires that “[a]ll children with disabilities residing in the State . . . who are in need of special education and related services, are identified, located, and evaluated . . . .” 20 U.S.C. § 1412(a)(3)(A); see also 5-E D.C.M.R. § 3002.1(d); 5-E D.C.M.R. § 3002.3(a).
255. Under the IDEA and its implementing regulations, jurisdictions must ensure that children receive an initial evaluation within 60 days of parental consent or within an alternative time frame specified by the state. 20 U.S.C. § 1414(a)(1)(C). District law extends that period to
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120 days, beginning “from the date that the student was referred for an evaluation or assessment.”
D.C. Code § 38-2561.02(a); see Parker v. Friendship Edison Pub. Charter Sch., 577 F. Supp. 2d
68, 74 (D.D.C. 2008)). After the evaluations are complete, the child must receive an eligibility
determination. 20 U.S.C. § 1414(b)(4); 34 C.F.R. § 300.306(a). Pursuant to District law, the
timeframe will be reduced “[b]eginning July 1, 2017, or upon funding, whichever occurs later.”
D.C. Code 38-2561.02(a)(2)(A); see infra para. 101.
256. The District applies the 120-day deadline to the eligibility determination. For
example, in reporting to OSEP with regard to compliance with the timely evaluation requirement,
the District reports the percentage of children who receive an eligibility determination within 120
days, stating, “The District of Columbia’s established timeline for evaluations is 120 days from
referral to eligibility determination.” OSSE FFY 2013 Part B SPP/APR, Pls.’ Ex. 242, at DL2015
92–93; see also Proddutur Dep. 76:11–20, July 2, 2014, Pls.’ Ex. 18 (“[Q]: What statistics does
the District prepare annually that relate to the timing of initial eligibility determinations? [A]:
Actually, that is what I was talking about, initial evaluation, which the District does not have a
separate timeline for eligibility determination and evaluation. It is one entity for eligibility determination. And it is the only metric that we measure.”).9
9 Since the District has not tracked the timeliness of initial evaluations, separate from eligibility determinations, for the applicable period, plaintiffs have not had data regarding the timeliness of initial evaluations. Accordingly, in opposition to the District’s motion for summary judgment, on November 21, 2014, plaintiffs stated:
Despite the injunction, the District has reported that it has not been tracking the percentage of preschool aged children that receive timely evaluations. Accordingly, plaintiffs have no data related to this benchmark. However, Sean Compagnucci, the Executive Director of Early Stages, testified that, on average, it takes about 60 days after the referral date to have the first assessments (as opposed to the completion of all assessments). That is, it takes the District half of the 120-day period to even get the family in the door to have the child assessed for the first time. Mr. Compagnucci testified that, with more staff, that time period could be reduced. As addressed below, the District’s practice of delaying assessments contributes to its failure to provide timely eligibility determinations.
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257. This Court previously applied, and will again apply, the 120-day deadline to eligibility determinations. See Mem. Op. ¶¶ 116, 120, 123, ECF No. 294; Mem. Op. 2, 12, 19– 20, ECF No. 444.
258. The Court previously held that, through April 6, 2011, the District failed to provide timely eligibility determinations in violation of the IDEA and District law. See Mem. Op. 16–18, 24 ECF No. 198 (through 2007); Mem. Op. ¶¶ 120, 123 (through Apr. 6, 2011); Mem. Op. 11, 13–14, 19–20, 42 ECF No. 444 (through Apr. 6, 2011, post-remand).
2. Measurement 259. Until recently, the District’s regulations stated that a child “shall be referred, in writing, to an IEP team” and that “[a] referral, which shall state why it is thought that the child may have a disability may be made by” a parent, the child (if older than the children at issue here), a professional staff employee of the LEA, or a staff member of a public agency who has direct knowledge of the child. 5-E D.C.M.R. § 3004.1(a), (b) (former regulation). That regulation also stated: “If the child to be referred attends a D.C. public school or is enrolling in a D.C. public school at the time this referral is made, this referral shall be submitted by his or her parent to the building principal of his or her home school, on a form to be supplied to the parent by the home school at the time of the parent’s request.” 5-E D.C.M.R. § 3004.1(c). Additionally, “if the child to be referred does not attend a D.C. public school and the parent does not register the child to attend a D.C. public school at the time the referral is made, this referral shall be submitted by the
Mem. in Opp’n to Defs.’ Mot. for Summ. J. 18, ECF No. 422 (citations omitted). The Court then granted summary judgment for the District on plaintiff subclass 2’s claim related to timely evaluations for the period after April 6, 2011, stating that “plaintiffs concede that they ‘have no data related to this benchmark.’” Mem. Op. 36, ECF No. 444. See also Order, Nov. 3, 2015, ECF No. 491 (clarifying the record).
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parent to a site designated by the Superintendent on a form to be supplied to the parent by that site at the time of the parent’s request.” 5-E D.C.M.R. § 3004.1(d).
260. As discussed, the District does not consider referrals from non-parents to start the 120-day clock. See supra para. 104. This policy is misguided and contrary to the clear language of the IDEA. The District claims it initiated the policy “in response to negative feedback from parents who understandably resisted the creation of permanent special education records for their children without parental knowledge or consent.” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 113 n.5. The District should of course keep parents completely informed of its activities, but this concern does not justify such a strained interpretation of the IDEA’s statutory language. It is critical that children receive services as soon as possible.
261. On October 2, 2015, the relevant regulation was re-written and now reads: (a) A child suspected of having a disability who may need special education and is
at least two years, eight months of age and less than twenty-two (22) years of age, shall be referred to an IEP team for an evaluation or assessment. (b) A referral for an evaluation or assessment for special education services may be oral or written. An LEA shall document any oral referral within three (3) business days of receipt. 5-E D.C.R.R. § 3004.1. 262. This regulation, which relates to the applicable state timeframe of 120 days from referral, comports with this Court’s 2011 decision requiring the clock to start at the time of a written or oral referral from a parent or non-parent. Mem. Op. ¶ 149(b), ECF No. 294 (“‘Date of referral’ is defined as the date on which defendants receive a written or oral request for assessment of a preschool child including the child’s name and age, the parent’s or guardian’s name, mailing address or telephone number, and the basis for referral.”). The regulation explicitly states that a referral can be written or oral and does not limit the source of a referral. 5-E D.C.M.R.
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§ 3004.1(b); see also D.C. Code § 38-2561.02(a)(3). Accordingly, the District must start the 120-
day time-period for an eligibility determination whenever the District receives a written or oral
request for assessment, from a parent or non- parent, of a preschool-age child.
263. Based on paragraphs 157–161 of the above findings of fact, the District should
have been applying a reasonable and fair parental delay policy, as described above. See supra
para. 233.
3. Conclusion
264. Based on paragraphs 99–119 and 162–165 of the above findings of fact, the Court
holds that, from April 7, 2011, to November 12, 2015 (the first day of the second trial), the District
has failed to ensure that preschool-age children with disabilities in the District receive an
eligibility determination within 120 days of referral, in violation of 20 U.S.C. § 1414(a)(1)(C),
20 U.S.C. § 1414(b)(4), 34 C.F.R. § 300.306(a), and D.C. Code § 38-2561.2(a).
E. SUBCLASS 4 IDEA CLAIM
1. Smooth and Effective Transition Claim
265. A state must have in effect policies and procedures to ensure that:
[c]hildren participating in early intervention programs assisted under [Part C], and who will participate in preschool programs assisted under [Part B], experience a smooth and effective transition to those preschool programs in a manner consistent with section 1437(a)(9) of [the IDEA]. By the third birthday of such a child, an individualized education program or . . . an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency . . . .
20 U.S.C. § 1412(a)(9); see also 34 C.F.R. §§ 300.124, 300.101(b).
266. As part of its annual application for Part C funding, a state must explain how:
(i) the families of such toddlers and children [exiting Part C] will be included in the transition plans . . . and (ii) the [Part C] lead agency . . . will (I) notify the local educational agency for the area in which such a child resides that the
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child will shortly reach the age of eligibility for preschool services . . . ; [and] (II) . . . convene a conference among the [Part C] lead agency, the family, and the local educational agency not less than 90 days (and at the discretion of all such parties, not more than 9 months) before the child is eligible for the preschool services, to discuss any such services that the child may receive . . . . 20 U.S.C. § 1437(a)(9). 267. The Court has previously held that the District failed to comply with its obligation to ensure a smooth and effective transition for disabled children from Part C to Part B, in violation of the IDEA. Mem. Op. 20, ECF No. 198 (through 2007); Mem. Op. ¶ 126, ECF No. 294 (through Apr. 6, 2011); Mem. Op. 12–13, 19–20, 42, ECF No. 444 (through Apr. 6, 2011, post-remand).
2. Measurement 268. An IEP is not implemented until all special education and related services commence. See supra paras. 123–25. The Court previously concluded that “all services must commence for a transition to be smooth and effective.” Mem. Op. 39, ECF No. 444. Otherwise said, the District must be prepared to provide all services by the child’s third birthday. Of course, the District need not provide those services if, for example, the third birthday falls on a Sunday or the child is ill on his or her third birthday. 269. Based on paragraphs 120–142 and 162–165 of the above findings of fact, and the Court’s prior orders, 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 (that is, all special education and related services in the child’s IEP must commence by the child’s third birthday); and (4) Part B personnel are involved in the transition process. Mem. Op. 25, ECF No. 389; Mem. Op. 39, ECF No. 444.
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270. Based on paragraphs 157 to 161 of the above findings of fact, the District should have been applying a reasonable and fair parental delay policy. See supra para. 233. Also, the District should have been recording and tracking when children first receive each service required pursuant to an IEP. See supra para. 147.
3. Conclusion 271. Based on paragraphs 120–142, 147–152, and 162–165, of the above findings of fact, the Court holds that the District failed to have in effect policies and procedures to ensure that children receive a smooth and effective transition from Part C to Part B services, in violation of 20 U.S.C. § 1412(a)(9), 34 C.F.R. § 300.124, and 34 C.F.R. § 300.101(b). F. REHABILITATION ACT CLAIMS 272. Section 504 of the Rehabilitation Act states 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). Section 504 further states that, “[f]or the purposes of this section, the term ‘program or activity’ means all of the operations of . . . a local educational agency . . . or other school system.” 29 U.S.C. § 794(b)(2)(B). 273. The implementing regulations for section 504 state that: “[a] recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. § 104.33(a). 274. The Court previously held that defendants may be liable under section 504 for violations of IDEA, if defendants show either “bad faith or gross misjudgment” in failing to
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comply with their legal obligations. Mem. Op. 4, ECF No. 55. Specifically, defendants are required to “exercise[] professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals.” Id. (citation omitted).
275. The Court previously found that “at least through and including the year 2007, defendants knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations, in violation of § 504 of the Rehabilitation Act, 29 U.S.C.§ 794(a).” Mem. Op. 23, ECF No. 198. Indeed, “there [was] no genuine dispute that defendants knew, based on communications with OSEP, that they were not in compliance with their legal obligations, yet they failed to change their actions.” Id. In short, “defendants’ failures were a departure from accepted educational practices throughout the country,” and were sufficient to demonstrate “bad faith or gross misjudgment.” Mem. Op. 23, ECF No. 198.
276. Likewise, the Court previously held that, from 2008 to April 6, 2011, “the District of Columbia’s special education policies were a gross departure from accepted educational practices throughout the country,” and that “the District of Columbia knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations.” Mem. Op. ¶¶ 131–33, ECF No. 294. For this period as well, “defendants 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 under IDEA, in violation of 29 U.S.C. § 794(a) of the Rehabilitation Act.” Id. After remand, the Court dismissed plaintiffs’ Rehabilitation Act claims for the period after March 22, 2010. Mem. Op. 42–43, ECF No. 444.
277. As discussed in the Court’s Memorandum Opinion issued on this date and referenced in paragraph 180, plaintiffs’ pre-2010 Rehabilitation Act claims are not moot—even
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though the District’s actions that gave rise to the harm are no longer ongoing—because the voluntary cessation exception to the mootness doctrine applies. The Court therefore has jurisdiction to reach the merits of these claims, and finds that each plaintiff subclass prevails.
278. Subclass 1. Based on paragraphs 175–190 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its FAPE and Child Find obligations. Its policies, procedures, and practices were a gross departure from accepted educational practices throughout the country, it knew that its actions were legally insufficient, and it knowingly failed to provide special education and related services to thousands of preschool-age children.
279. Subclass 2. Based on paragraphs 175–182 and 191–199 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide timely initial evaluations for special education and related services. Its policies, procedures, and practices were a gross departure from accepted educational practices, it knew that its actions were legally insufficient, and it knowingly failed to provide timely initial evaluations to over one thousand children.
280. Subclass 3. Based on paragraphs 175–182 and 205–207 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide timely eligibility determinations for special education and related services. Its policies, procedures, and practices were a gross departure from accepted educational practices,
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it knew that its actions were legally insufficient, and it knowingly failed to provide timely eligibility determinations to over one thousand children.
281. Subclass 4. Based on paragraphs 175–182 and 208–215 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide smooth and effective transitions from Part C to Part B services. Its policies, procedures, and practices were a gross departure from accepted educational practices, it knew that its actions were legally insufficient, and it knowingly failed to provide timely eligibility determinations to many hundreds of children.
G. ENTITLEMENT TO DECLARATORY RELIEF 282. Declaratory relief is warranted when “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality . . . .” Md. Casualty Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941); see also Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1073 (D.C. Cir. 1998). 283. The Court previously stated the following: [T]he Court holds that, from 2008 to April 6, 2011 (the first day of trial), there has been a substantial controversy of sufficient immediacy and reality due to defendants’ failure to identify, locate, evaluate, and offer plaintiffs a free appropriate public education and failure to ensure a smooth and effective transition from Part C to Part B for eligible preschool-age children in the District of Columbia. Mem. Op. ¶ 135, ECF No. 294. 284. The Court then issued a declaratory judgment that the District violated the IDEA, District law, and the Rehabilitation Act. Id. at ¶¶ 136–37. 285. Based on the above findings of fact and conclusions of law, the Court again holds there has been a substantial controversy of sufficient immediacy and reality to issue a declaratory
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judgment. See also accompanying Mem. Op. issued on this date, at 24–28. The Court therefore
will issue a declaratory judgment that extends the holdings of its June 10, 2015 Memorandum
Opinion, through November 12, 2015 (the first day of the second trial), and declares that the
District violated the IDEA and District law by failing and continuing to fail to ensure that:
(a) All children between the ages of three and five, inclusive, who reside in the District, including children who are homeless or are wards of the District, who are in need of special education and related services, are identified for the purpose of offering special education services, are provided with a FAPE, and that a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services, in violation of 20 U.S.C. § 1412(a)(3)(A) and 5-E D.C.M.R. 3002.1(d), 3002.3(a) (Child Find), and 20 U.S.C. § 1412(a)(1)(A) and 5- E D.C.M.R. 3001.1, 3002.1(a), (e) (FAPE).
(b) All children between the ages of three and five, who reside in the District, including children who are homeless or are wards of the District, receive an eligibility determination within 120 days of referral, in violation of 20 U.S.C. § 1414(a)(1)(C), 20 U.S.C. 1414(b)(4), 34 C.F.R. § 300.306(a), and D.C. Code 382561.2(a); and
(c) All children who receive Part C early intervention services and are eligible for and choose to receive Part B services receive a smooth and effective transition to Part B services by their third birthdays, in violation of 20 U.S.C. § 1412(a)(9), 34 C.F.R. § 300.124, and 34 C.F.R. § 300.101(b).
H. ENTITLEMENT TO INJUNCTIVE RELIEF
286. A plaintiff seeking a permanent injunction must demonstrate that “(1) that it has
suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would
not be disserved by a permanent injunction.” Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139, 156–57 (2010).
287. First, as described above, the Court has again found the District liable for violating
the IDEA, its implementing regulations, and District law. The Court again finds that these
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violations result in irreparable injury to all eligible children between the ages of three and five years old, inclusive, who reside in the District, including children who are homeless or are wards of the District, and whom the District did not identify, locate, evaluate, or offer special education and related services to, or for whom the District did not timely issue eligibility determinations or smooth and effective transitions from Part C to Part B services. Without access to and timely receipt of special education and related services, preschool-age children in the District suffer substantial harm by being denied educational opportunities that are essential to their development.
288. Second, there are no adequate existing remedies. The District argues that plaintiffs have not shown a systemic violation that could justify injunctive relief and that, if any individual children’s rights were violated, “the remedy for those issues is to file a due process complaint and follow the administrative remedy procedures set out in the IDEA itself.” Trial Tr., Nov. 16, 2015, 77:3–11. However, since the violations described above affect at least hundreds of children annually, see supra paras. 83–84, 111–16, 140, they are appropriately addressed through injunctive relief. Moreover, administrative relief would have little if any value to a child that is not identified. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 114 (2d Cir. 2004) (describing claims of systemic IDEA violations that could not be remedied through the administrative hearing process); Cordero by Bates v. Pa. Dept. of Educ., 795 F. Supp. 1352, 1362–63 (M.D. Pa. 1992) (ruling that an injunction was appropriate to address systemic flaws).
289. Third, the balance of hardships strongly supports injunctive relief. An injunction requiring the District to do nothing more than comply with its legal obligations cannot, by definition, harm it. See Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986). Indeed, the District contends that it has already complied with the vast majority of the programmatic
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requirements below. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 71–83 (detailing the ways in which the District has “implemented each of the recommended policy and procedural changed specified in the Court’s 2011 Order”); Trial Tr., Freund Test., Nov. 16, 2015, 51:16–23, id. at 75:2–76:21 (referencing District’s counsel); see also 2015 Freund Direct ¶ 10.
290. Fourth, the Court again finds that the public interest will be served by compelling the District to provide special education and related services, and access thereto, in accordance with applicable law. 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 that] the rights of children with disabilities . . . are protected.” 20 U.S.C. § 1400(d)(1). In the words of the Court of Appeals for the Seventh Circuit: “We . . . fail to see how enforcing a statute designed to promote the public welfare disserves the public.” Haskins, 794 F.2d at 1277; see also Massey v. District of Columbia, 400 F. Supp. 2d 66, 76 (D.D.C. 2005) (“Prior decisions by this Court have made clear that the relevant public interest is that of the students. The public interest lies in the proper enforcement of . . . the IDEA.” (citation omitted)); Petties v. District of Columbia, 238 F. Supp. 2d 114, 125 (D.D.C. 2002). Therefore, plaintiffs satisfy the four-part test.
291. The District contends that its system is improved. Its witnesses appear to be committed to making continued improvements; however, despite the recent efforts of its staff, non-compliance persists, as OSEP determined the District “needs intervention” for the ninth consecutive year. As such, the Court cannot find “clear proof of an intent to permanently alter or abandon [its] ongoing failure to provide special education and related services to preschool-age children.” Mem. Op. ¶ 141, ECF No. 294. Even taking into account its recent improvement, the District has not yet satisfied federal and District law.
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292. As the District has yet to attain a period of sustained compliance, this Court has
concerns about the long-term stability of the District’s programs. Over ten years have passed
since this lawsuit was filed (many more since OSEP began identifying the District’s problems),
and many hundreds of children are still not receiving or timely receiving their special education
and related services. In addition:
 There was a nearly two- year decline in the District’s enrollment percentage, see supra para. 85, which the District did not appear to be aware of or concerned about. See Maisterra Dep. 357:4–359:21, July 2, 2014, Pls.’ Ex. 18 ([Q]: Well, the percentage has been falling for nearly the last year, hasn’t it? [A] I don’t believe so. . . “);
 Based on the data reported to OSEP, which is also falling, the District is serving 6.19% of its preschool-age population, which is essentially equal to the national average, even though, based on its risk factors, it should be serving many more children. See supra paras. 96–98;
 Prior to the previous trial, the District set a goal to reduce the timeline for eligibility determinations to 60 days but, by 2014, Mr. Compagnucci had not considered what would be necessary to do that and the District still brings large numbers of children in for their first assessment after 60 days have elapsed. See supra para. 117; Compagnucci Dep. 69:4-7, June 3, 2014, Pls.’ Ex. 16 (“For the last year, the average amount of time between a referral and when the family came into the center was 60–right around 60 days.”); Family Care Manual, Pls.’ Ex. 72, at 17 (“The Early Stages internal goal is for each assessment to be scheduled within 10 days of the initial referral. At this time, given the high volume of referrals to the center, our more realistic goal is to schedule an evaluation within 60 days of referral.”);
 There are material inconsistencies in the District’s documents and practice: inconsistency between the District’s use of annual census estimates for this case and elsewhere, see supra paras. 94–95, and the District’s documents and representatives state that services should begin by the third birthday but it argues that related services do not need to do so. See supra paras. 126, 128, 173; and
 As of the most recent assessments, OSEP continued to find OSSE noncompliant, and OSSE continued to find DCPS noncompliant. See supra paras. 166–70.
293. For all of these reasons, the Court permanently enjoins the District from further
violations of IDEA and District law, and directs the following corrective actions. These injunctive
requirements are similar to the requirements that issued in 2011.
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I. NUMERICAL INJUNCTIVE REQUIREMENTS 1. Subclass 1
294. The District shall ensure that at least 8.5% of children between the ages of three and five years old, inclusive (hereafter, “preschool children”), who reside in or are wards of the District, are enrolled in special education and related services under Part B or extended Part C services.
295. Until 8.5% is reached, the District shall increase the percentage of preschool children in the District enrolled in Part B or extended Part C services by 0.5% in the first full year, starting on the first of the next month after the date of this Order, and an additional 0.5% in each subsequent year.
296. A child shall be considered “enrolled” on the date that he or she began receiving all of the special education and related services identified in his or her IEP or, if receiving extended Part C services, all of the services identified in his or her IFSP, including the required educational component. See supra para. 250. The District shall record and track when children first receive each service (including special education and related services) required pursuant to an IEP or extended IFSP. See id.
297. The District’s enrollment percentage shall be calculated by dividing the number of preschool children enrolled by the number of preschool children in the District, as reported in the most recent annual census estimate prepared by the U.S. Census Bureau’s Population Estimates Program, except in the years for which the decennial census results are issued, in which case the enrollment percentage should be calculated by dividing the number of preschool children enrolled by the decennial census results. See supra para. 251.
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2. Subclass 3 298. The District shall ensure that at least 95% of all preschool children referred for Part B services receive a timely eligibility determination. 299. Until 95% is reached, the District shall increase the percentage of preschool children referred for Part B services who receive a timely eligibility determination by 10% in the first full year, starting on the first of the next month after the date of this Order, and an additional 5% in each subsequent year. 300. An eligibility determination shall be considered timely if it is completed within the period then-prescribed by federal and local law. According to District law that is currently applicable, the District has 120 days from the date of referral to make an eligibility determination. 301. “Date of referral” is defined as the date on which the District receives a written or oral request for assessment of a preschool child. That referral may be made by a parent or a nonparent such as a pediatrician or an LEA employee. See supra para. 262. 302. The District shall revise its parental delay policy so that it uses common sense and fairness to determine when any delay should be attributed to the LEA and when any delay should be attributed to the parent, consistent with 34 C.F.R. § 300.301(d)(1) (“The timeframe described in paragraph (c)(1) of this section does not apply to a public agency if—(1) The parent of a child repeatedly fails or refuses to produce the child for the evaluation.”). For example, the parental delay rules shall not allow attempts at parent contact that are clearly ineffective, such as repeat calls to a disconnected telephone number, to count towards meeting the minimum number of attempts at contact. The revised rules shall account for both delays by the LEA in attempting to contact the parent and in parental responsiveness, all of which should be documented. See supra paras. 157–61, 233, 263.
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3. Subclass 4 303. The District shall ensure that at least 95% of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays. 304. Until 95% is reached, the District shall increase the percentage of smooth and effective transitions by 10% in the first full year, starting on the first of the month following the date of this Order, and an additional 5% in each subsequent year. 305. 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 the services that are to be provided and 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 (that is, all special education and related services in the child’s IEP must commence by the child’s third birthday); and (4) Part B personnel are involved in the transition process. See supra para. 269. 306. Accordingly, the District’s policy and goal shall be to provide all special education and related services on the child’s third birthday. However, to avoid dispute regarding delays caused by weekends or holidays, and to address the District’s concerns regarding the practical difficulties in commencing related services by the child’s third birthday, the District may report that there was no disruption in services as long as (1) all of the child’s special education services begin on the child’s third birthday or, if that is a weekend or holiday, on the first school day after the child’s third birthday (which, in the case of a child whose birthday falls during the summer and qualifies for ESY services, will be ESY services), and (2) all related services should begin within 14 days of the child’s third birthday (unless that period is within the summer and the child does not qualify for related services as part of his or her ESY services, in which case within 14
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days of the first day of school after the summer). See supra paras. 128–36. The District shall

record and track when children first receive each service (including special education and related

services) required pursuant to an IEP. See supra para. 270.

307. The District shall revise its parental delay policy as described above. See supra

paras. 270, 302.

J. PROGRAMMATIC REQUIREMENTS

308. The Court issued the programmatic requirements described in this paragraph

following trial in 2011 based upon the facts that were found at that time. Mem. Op. ¶¶ 151–65,

ECF No. 294; Order 323. The District shall satisfy, or continue to satisfy or exceed, the following

programmatic requirements. See 2015 Dunst Direct ¶ 166.

a. The District shall maintain and regularly update a list of primary referral

sources, including physicians, hospitals, and other health providers; day care centers, child care

centers, and early childhood programs; District departments and agencies; community and civic

organizations; and advocacy organizations. The District shall also develop a system to track

frequency of contacts with the referral sources to ensure that outreach occurs on a regular basis.

b.

The District shall develop and publish printed materials targeted to

parents and guardians that inform them of the preschool special education and related services

available from DCPS, the benefits and cost-free nature of these services, and how to obtain the

services. These materials shall be written at an appropriate reading level and be translated into

the primary languages spoken in the District. These materials shall be distributed to all primary

referral sources (e.g., medical professionals and child care staff), public and public charter

schools, public libraries, Income Maintenance Administration Service Centers, public recreation

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facilities, and other locations designed to reach as many parents or guardians of preschool

children who may be eligible for special education and related services as possible.

c.

The District shall develop, publish, and distribute tailored printed

materials targeted at primary referral sources to inform them of the preschool special education

and related services available from DCPS, the benefits and cost-free nature of these services, and

how to make a referral. These materials shall be used in conjunction with regular contacts with

primary referral sources to increase the usefulness of the materials.

d.

The District shall ensure that Early Stages outreach staff (e.g., the Child

Find Field Coordinators) contact primary referral sources or a staff member in the primary

referral source’s office who are instrumental in making referrals at least once a month until

a referral relationship is established and then every three months thereafter. The initial

meeting shall be face-to-face whenever possible when pursuing referrals from new referral

sources and then less frequently thereafter, using the method of contact preferred by the referral

sources (e.g., e-mail, texting, or telephone calls).

e.

The District shall accept both oral and written referrals at the start of

the eligibility determination process, make multiple attempts using different forms of

communication (e.g., telephone, postal mail, and e-mail) to contact the parent or guardian of

a referred child, and, upon obtaining consent of the parent or guardian, provide feedback to

the referral source regarding the outcome of the referral in a timely manner.

f.

The District shall assign each family served by Early Stages a single staff

member to act as its “case manager” throughout the screening, 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.

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g.

The District shall maintain a central location that: accepts formal and

informal referrals; conducts initial meetings, screenings, assessments, eligibility determinations,

IEP development, and offers of placement; and permits parents to register their child with DCPS.

h.

The District shall regularly assess the need for and, as necessary, open

additional satellite sites to perform the same functions in other wards or use a mobile evaluation

unit that is able to perform these functions at multiple locations throughout the District as more

children are located who may be in need of preschool special education.

i.

The District shall conduct regular screenings of preschool-age children

in each ward of the District, and especially in wards in which children experience multiple

risk factors.

j.

The District shall use existing data (e.g., medical records and reports

of prior assessments) at the time of referrals to the extent possible, especially for children from

Part C to Part B services, to eliminate unnecessary and duplicative screenings and assessments

for eligibility determination purposes.

k.

The District 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

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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.

l.

The District shall maintain a reliable data-sharing system between Part

C and Part B to ensure that Early Stages receives an ongoing monthly report of all children

who will be aging out of Part C within the following six months in order to ensure timely

transition meetings.

m. The District shall maintain a reliable database system for tracking

children through the Child Find process: from referral to eligibility determination and, if eligible,

IEP development, placement, and provision of identified services.

n.

The District shall maintain a reliable system for tracking the number and

type of placements available for preschool special education and related services throughout the

year and expanding the number and types of placement as needed.

309. The District shall also satisfy the following programmatic requirements:

a. The District shall develop and apply consistent operational definitions for

each of the numeric benchmarks.

b. The District shall understand and ensure that its staff understand the

purpose of the benchmarks and the IDEA requirements so that it can

comply with them.

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c. The District shall improve its data collection policies so that reporting can be accurate.
d. The District shall collect the necessary data to indicate when all services begin, including special education and related services.
See 2015 Dunst Direct ¶ 166. K. MODIFICATION OF THE INJUNCTION 310. The numerical requirements for the percentage of preschool children enrolled in
Part B set forth in paragraphs 294–295 above may only be modified by order of the Court upon a showing that 8.5% does not accurately reflect the number of preschool children who reside in the District, including children who are homeless or are wards of the District, that the District should expect to enroll through an effective Child Find system.
311. The programmatic requirements set forth in paragraphs 308–309 above may be modified by order of the Court. In order to obtain modification by order of the Court, the District must show that another action, to be substituted for the requirement that the District wishes to modify, would be at least as effective.
L. REPORTING 312. Every year, the District shall provide an annual report to plaintiffs and the Court regarding its compliance with the numerical requirements set forth in paragraphs 294–307 above. With regard to the enrollment percentage, the District shall provide the percentage for each month of the prior year, the numerator and denominator for each of those months, and the monthly spreadsheets from which those results are calculated, with any child-identifying information redacted. With regard to the eligibility determination and transition statistics, the
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District shall provide the data over that year and the District’s spreadsheets which show the calculations that yielded those statistics, with any child identifying information redacted.
313. Every six months, the District shall provide reports to plaintiffs and the Court regarding their compliance with the programmatic requirements set forth in paragraphs 308 and 309 over the prior six months.
314. For purposes of these reporting requirements, and the termination provisions below, months and years shall be calculated as follows: the first month and year shall start on the first of the next month following the date of the Court’s order and subsequent months and years shall start on the anniversary of the first month following the date of the Court’s Order. Reports shall be filed within 30 days after the expiration of the period to which the report relates.
M. TERMINATION OF THE INJUNCTION 315. This order shall remain in effect until the District has demonstrated sustained compliance with the numerical requirements set forth in paragraphs 294–307 above (8.5% of preschool children enrolled in special education and related services, 95% of preschool children receive timely eligibility determinations, and 95% of children receive smooth and effective transitions). The period of sustained compliance shall begin after the District, during a single year (“the baseline year”), meets or exceeds all three numerical requirements. Following the baseline year, the District may show sustained compliance:
a. In two years if, in the year following the baseline year (Year 1), the District increases the percentage of preschool children enrolled in Part B to at least 9.5% and meets or exceeds the other two numerical requirements and, in the subsequent year (Year 2), the District increases the percentage of preschool children enrolled in Part B to at least 10.5% and meets or exceeds the other two numerical requirements; or
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b. In three years if, in the three years immediately following the baseline year (Years 1, 2, and 3), the District meets or exceeds all three numerical requirements.
316. If the District fails to meet any of the numerical requirements in Years 1, 2, or 3, the District must establish a new baseline year of compliance before being able to show sustained compliance.
317. The programmatic requirements set forth in paragraphs 308–309 above shall not terminate until the numerical requirements set forth in paragraphs 294–307 above are satisfied.
N. ATTORNEYS’ FEES AND EXPENSES 318. Plaintiffs have prevailed on both IDEA and Rehabilitation Act claims. Pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I) (IDEA) and 20 U.S.C. § 794a(b) (Rehabilitation Act), the District shall pay plaintiffs’ reasonable attorneys’ fees and related nontaxable expenses associated with litigating this suit. 319. Pursuant to Federal Rule of Civil Procedure 54(d)(2), plaintiffs’ claim for attorneys’ fees and related nontaxable expenses must be made by a motion and submitted to this Court no later than 14 days, herein, or in accordance with a timeframe set in a separate court order. IV. CONCLUSION For the reasons stated above, the Court finds the District liable for violating the IDEA, District law, and the Rehabilitation Act, and that plaintiffs are entitled to the above-specified declaratory and injunctive relief. Unlike in 2011, the plaintiffs of each subclass are bound together by “a single or uniform policy or practice.” DL v. District of Columbia, 713 F.3d 120, 127 (D.C. Cir. 2013). As discussed, the District has separately and specifically failed to (1) identify substantial numbers of children who are in need of special education and related services, (2) timely evaluate children for special education and related services, (3) timely issue
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eligibility determinations for special education and related services,10 and (4) provide smooth and effective transitions for children from Part C to Part B services.
The Court acknowledges the good faith efforts and reforms the District has undertaken to come into compliance with IDEA’s requirements to identify disabled children, timely evaluate them, perform eligibility determinations, and provide smooth and effective transitions from Part C to Part B. Even the best of intentions, however, will not bring a state or jurisdiction into compliance with the IDEA’s affirmative obligations. Indeed, compliance hinges on results, and the plaintiffs’ largely unrebutted, outcome-driven analysis shows that the District does not have effective policies in place to satisfy the specific legal obligations owed to each member of the three subclasses at issue.
The most that the defendants do to counter the plaintiffs evidence is argue that plaintiffs are applying the wrong set of assumptions, arguments which this Court has rejected.11 Moreover, defendants argue that the statistics they present are consistent with the “business rules” and are in line with the statistical and reporting criteria for the IDEA commonly used in other states. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 68 (“T]he District’s practices with regard to OSEP reporting are aligned with other jurisdictions, and [] in most cases, the District sets a higher bar.” (quotations omitted)). Even if that were true, at best, it would demonstrate that other states are jurisdictions may also be violating the IDEA. In light of plaintiffs’ child-specific, results-oriented evidence, this argument does nothing to shield the District from liability—it
10 This statement of course relates to the Court’s previous finding that subclass 3 prevailed on its claims for the period up to April 6, 2011. 11 See supra para. 260 (rejecting the defendants’ argument that the 120-day clock should not start when a non-parent submits a referral); see supra paras. 268–69 (rejecting the defendants’ argument that not all Part B services need to be delivered by the child’s third birthday.
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could only show that liability is perhaps more widespread in other states and jurisdictions than is commonly thought.
The District’s lack of effective Child Find and transition polices is particularly troubling in light of the intense scrutiny and seemingly constant admonishment it has received over the last decade. In 2011, this Court stated, “Defendant’s persistent failure to live up to their statutory obligations, a failure that works a severe and lasting harm on one of society’s most vulnerable populations—disabled preschool children—is deeply troubling to this Court.” Mem. Op. & Findings of Fact and Conclusions of Law 44–45, ECF No. 294. Moreover, as discussed, OSEP informed OSSE in 2015 that it “needs intervention in implementing the requirements of Part B of the IDEA” for the “ninth consecutive year,” which is the longest period in the country. Letter from OSEP to OSSE, June 30, 2015, Pls.’ Ex. 243, at 1, 4–8. Although OSEP’s long-running “needs intervention” determination does not deal exclusively with the statutory obligations at issue in this litigation, it contributes to the overarching narrative that the District requires strong, outside involvement to produce even minimally acceptable results. And critically, this litigation has been ongoing for more than ten years, providing the District with ample time and robust incentives to come into full compliance with the law. It is for these reasons that a structural injunction is necessary.
It is true that the Court’s present focus and analysis has shifted from the original 2011 trial. That trial focused mainly on the structure and design of the District’s policies and practices themselves. Importantly, the plaintiffs’ evidence at that time looked only to the plain results of the District’s self-reported statistics. In this trial, the Court continued to analyze and note the structural defects in the District’s official policies, but went one step further by examining the District’s self-reported data to evaluate the actual results that the District’s policies produced.
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 Case 1:05-cv-01437-RCL Document 521 Filed 05/18/16 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________________

)

DL, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

)

______________________________________ )

Civil Case No. 05-1437 (RCL)

ORDER Upon consideration of arguments, testimony, and other evidence presented at the November 12-16, 2015 trial of this matter and the entire record in this case, and for the reasons stated in the accompanying Memorandum Opinion filed this date, the Court hereby extends the holding of its June 10, 2015 Memorandum Opinion, DL v. District of Columbia, 109 F. Supp. 3d 12 (D.D.C. 2015), to the period April 7, 2011 to November 12, 2015 (the first day of trial) and declares that: 1. with respect to Subclass 1, defendants failed to ensure that preschool-age children with disabilities in the District are identified, located, and evaluated for the purposes of offering special education and related services, in violation of 20 U.S.C. § 1412(a)(3)(A) and 5 D.C. Mun. Regs. §§ 3002.1(d), 3002.3(a). In doing so, defendants failed to ensure that a FAPE is available to preschool-age children with disabilities in the District in violation of 20 U.S.C. § 1412(a)(1)(A) and 5 D.C. Mun. Regs. §§ 3001.1, 3002.1(a);

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Case 1:05-cv-01437-RCL Document 521 Filed 05/18/16 Page 2 of 12
2. with respect to Subclass 3, defendants failed to ensure that preschool-age children with disabilities in the District receive an eligibility determination within 120 days of referral in violation of 20 U.S.C. § 1414(a)(1)(C), 20 U.S.C. § 1414(b)(4), 34 C.F.R. § 300.306(a), and D.C. Code § 38-2561.2(a);
3. with respect to Subclass 4, defendants failed to have in effect policies and procedures to ensure that children receive a smooth and effective transition from Part C to Part B services in violation of 20 U.S.C. § 1412(a)(9), 34 C.F.R. § 300.124, and 34 C.F.R. § 300.101(b). The Court further declares that defendants violated section 504 of the Rehabilitation Act
until March 22, 2010 as to each of the four individual subclasses.1 The Court finds that the District demonstrated bad faith and gross misjudgment with regard to its Child Find and FAPE obligations; its obligation to provide timely initial evaluations for special education and related services; its obligation to provide timely eligibility determinations for special education and related services; and its obligation to provide smooth and effective transitions from Part C to Part B services.
In addition to the declaratory relief stated above, the Court permanently enjoins defendants from further violations of the IDEA’s requirements to identify, locate, and evaluate preschool-age children; perform a timely eligibility determination with 120 days of referral; and ensure children receive a smooth and effective transition from Part C to Part B. The Court directs the following corrective actions:
1 Although the Court granted defendants’ motion [417] for summary judgments on all of the second plaintiff subclass’s claims under the IDEA and D.C. law after April 6, 2011 [445], the second subclass’s claims under the Rehabilitation Act for the period prior to March 22, 2010 were litigated at trial. As discussed in this order, the second subclass prevailed on these claims.
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A. NUMERICAL REQUIREMENTS a. Subclass 1
1. The District shall ensure that at least 8.5% of children between the ages of three and five years old, inclusive (hereafter, “preschool children”), who reside in or are wards of the District, are enrolled in special education and related services under Part B or extended Part C services.
a. Until 8.5% is reached, the District shall increase the percentage of preschool children in the District enrolled in Part B or extended Part C services by 0.5% in the first full year, starting on the first of the next month after the date of this Order, and an additional 0.5% in each subsequent year.
b. A child shall be considered “enrolled” on the date that he or she began receiving all of the special education and related services identified in his or her IEP or, if receiving extended Part C services, all of the services identified in his or her IFSP, including the required educational component. The District shall record and track when children first receive each service (including special education and related services) required pursuant to an IEP or extended IFSP.
c. The District’s enrollment percentage shall be calculated by dividing the number of preschool children enrolled by the number of preschool children in the District, as reported in the most recent annual census estimate prepared by the U.S. Census Bureau’s Population Estimates Program, except in the years for which the decennial census results are issued, in which case the enrollment percentage should be calculated by dividing the number of preschool children enrolled by the decennial census results.
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b. Subclass 3 2. The District shall ensure that at least 95% of all preschool children referred for Part B services receive a timely eligibility determination.
a. Until 95% is reached, the District shall increase the percentage of preschool children referred for Part B services who receive a timely eligibility determination by 10% in the first full year, starting on the first of the next month after the date of this Order, and an additional 5% in each subsequent year.
b. An eligibility determination shall be considered timely if it is completed within the period then-prescribed by federal and local law. According to District law that is currently applicable, the District has 120 days from the date of referral to make an eligibility determination.
c. “Date of referral” is defined as the date on which the District receives a written or oral request for assessment of a preschool child. That referral may be made by a parent or a non-parent such as a pediatrician or an LEA employee.
d. The District shall revise its parental delay policy so that it uses common sense and fairness to determine when any delay should be attributed to the LEA and when any delay should be attributed to the parent, consistent with 34 C.F.R. § 300.301(d)(1). The revised rules shall account for both delays by the LEA in attempting to contact the parent and in parental responsiveness, all of which should be documented. c. Subclass 4
3. The District shall ensure that at least 95% of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays.
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a. Until 95% is reached, the District shall increase the percentage of smooth and effective transitions by 10% in the first full year, starting on the first of the month following the date of this Order, and an additional 5% in each subsequent year.
b. 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 the services that are to be provided and 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 (that is, all special education and related services in the child’s IEP must commence by the child’s third birthday); and (4) Part B personnel are involved in the transition process.
c. The District may report that there was no disruption in services as long as (1) all of the child’s special education services begin on the child’s third birthday or, if that is a weekend or holiday, on the first school day after the child’s third birthday (which, in the case of a child whose birthday falls during the summer and qualifies for Extended School Year (“ESY”) services, will be ESY services), and (2) all related services should begin within 14 days of the child’s third birthday (unless that period is within the summer and the child does not qualify for related services as part of his or her ESY services, in which case within 14 days of the first day of school after the summer). The District shall record and track when children first receive each service (including special education and related services) required pursuant to an IEP.
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d. The District shall revise its parental delay policy as described in paragraphs 157161, 270, 302 of the accompanying Memorandum Opinion & Findings of Fact and Conclusions of Law.
B. PROGRAMMATIC REQUIREMENTS 4. The District shall maintain and regularly update a list of primary referral sources, including physicians, hospitals, and other health providers; day care centers, child care centers, and early childhood programs; District departments and agencies; community and civic organizations; and advocacy organizations. The District shall also develop a system to track frequency of contacts with the referral sources to ensure that outreach occurs on a regular basis. 5. The District shall develop and publish printed materials targeted to parents and guardians that inform them of the preschool special education and related services available from District of Columbia Public Schools (“DCPS”), the benefits and cost-free nature of these services, and how to obtain the services. These materials shall be written at an appropriate reading level and be translated into the primary languages spoken in the District. These materials shall be distributed to all primary referral sources (e.g., medical professionals and child care staff), public and public charter schools, public libraries, Income Maintenance Administration Service Centers, public recreation facilities, and other locations designed to reach as many parents or guardians of preschool children who may be eligible for special education and related services as possible. 6. The District shall develop, publish, and distribute tailored printed materials targeted at primary referral sources to inform them of the preschool special education and related services available from DCPS, the benefits and cost-free nature of these services, and how to make a referral. These materials shall be used in conjunction with regular contacts with primary referral sources to increase the usefulness of the materials.
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7. The District shall ensure that Early Stages outreach staff (e.g., the Child Find Field Coordinators) contact primary referral sources or a staff member in the primary referral source’s office who are instrumental in making referrals at least once a month until a referral relationship is established and then every three months thereafter. The initial meeting shall be face-to-face whenever possible when pursuing referrals from new referral sources and then less frequently thereafter, using the method of contact preferred by the referral sources (e.g., e-mail, texting, or telephone calls).
8. The District shall accept both oral and written referrals at the start of the eligibility determination process, make multiple attempts using different forms of communication (e.g., telephone, postal mail, and e-mail) to contact the parent or guardian of a referred child, and, upon obtaining consent of the parent or guardian, provide feedback to the referral source regarding the outcome of the referral in a timely manner.
9. The District shall assign each family served by Early Stages a single staff member to act as its “case manager” throughout the screening, 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.
10. The District shall maintain a central location that: accepts formal and informal referrals; conducts initial meetings, screenings, assessments, eligibility determinations, IEP development, and offers of placement; and permits parents to register their child with DCPS.
11. The District shall regularly assess the need for and, as necessary, open additional satellite sites to perform the same functions in other wards or use a mobile evaluation unit that is able to perform these functions at multiple locations throughout the District as more children are located who may be in need of preschool special education.
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12. The District shall conduct regular screenings of preschool-age children in each ward of the District, and especially in wards in which children experience multiple risk factors.
13. The District shall use existing data (e.g., medical records and reports of prior assessments) at the time of referrals to the extent possible, especially for children from Part C to Part B services, to eliminate unnecessary and duplicative screenings and assessments for eligibility determination purposes.
14. The District 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.
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15. The District shall maintain a reliable data-sharing system between Part C and Part B to ensure that Early Stages receives an ongoing monthly report of all children who will be aging out of Part C within the following six months in order to ensure timely transition meetings.
16. The District shall maintain a reliable database system for tracking children through the Child Find process: from referral to eligibility determination and, if eligible, IEP development, placement, and provision of identified services.
17. The District shall maintain a reliable system for tracking the number and type of placements available for preschool special education and related services throughout the year and expanding the number and types of placement as needed.
18. The District shall develop and apply consistent operational definitions for each of the numeric benchmarks.
19. The District shall understand and ensure that its staff understand the purpose of the benchmarks and the IDEA requirements so that it can comply with them.
20. The District shall improve its data collection policies so that reporting can be accurate.
21. The District shall collect the necessary data to indicate when all services begin, including special education and related services.
C. MODIFICATION OF THE INJUNCTION 22. The numerical requirements for the percentage of preschool children enrolled in Part B set forth above may only be modified by order of the Court upon a showing that 8.5% does not accurately reflect the number of preschool children who reside in the District, including children who are homeless or are wards of the District, that the District should expect to enroll through an effective Child Find system.
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23. The programmatic requirements set forth in paragraphs above may be modified by order of the Court. In order to obtain modification by order of the Court, the District must show that another action, to be substituted for the requirement that the District wishes to modify, would be at least as effective.
D. REPORTING 24. Every year, the District shall provide an annual report to plaintiffs and the Court regarding its compliance with the numerical requirements set forth in paragraphs 1-3 above. With regard to the enrollment percentage, the District shall provide the percentage for each month of the prior year, the numerator and denominator for each of those months, and the monthly spreadsheets from which those results are calculated, with any child-identifying information redacted. With regard to the eligibility determination and transition statistics, the District shall provide the data over that year and the District’s spreadsheets which show the calculations that yielded those statistics, with any child identifying information redacted. 25. Every six months, the District shall provide reports to plaintiffs and the Court regarding their compliance with the programmatic requirements set forth in paragraphs 4-21 above. 26. For purposes of these reporting requirements, and the termination provisions below, months and years shall be calculated as follows: the first month and year shall start on the first of the next month following the date of the Court’s order and subsequent months and years shall start on the anniversary of the first month following the date of the Court’s Order. Reports shall be filed within 30 days after the expiration of the period to which the report relates. 27. This order shall remain in effect until the District has demonstrated sustained compliance with the numerical requirements set forth in paragraphs 1-3 above (8.5% of preschool
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Case 1:05-cv-01437-RCL Document 521 Filed 05/18/16 Page 11 of 12
children enrolled in special education and related services, 95% of preschool children receive timely eligibility determinations, and 95% of children receive smooth and effective transitions). The period of sustained compliance shall begin after the District, during a single year (“the baseline year”), meets or exceeds all three numerical requirements. Following the baseline year, the District may show sustained compliance:
a. In two years if, in the year following the baseline year (Year 1), the District increases the percentage of preschool children enrolled in Part B to at least 9.5% and meets or exceeds the other two numerical requirements and, in the subsequent year (Year 2), the District increases the percentage of preschool children enrolled in Part B to at least 10.5% and meets or exceeds the other two numerical requirements; or
b. In three years if, in the three years immediately following the baseline year (Years 1, 2, and 3), the District meets or exceeds all three numerical requirements.
28. If the District fails to meet any of the numerical requirements in Years 1, 2, or 3, the District must establish a new baseline year of compliance before being able to show sustained compliance.
29. The programmatic requirements set forth in paragraphs 4-21 above shall not terminate until the numerical requirements set forth in paragraphs 1-3 above are satisfied.
30. Plaintiffs have prevailed on both IDEA and Rehabilitation Act claims. Pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I) (IDEA) and 20 U.S.C. § 794a(b) (Rehabilitation Act), the District shall pay plaintiffs’ reasonable attorneys’ fees and related nontaxable expenses associated with litigating this suit.
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Case 1:05-cv-01437-RCL Document 521 Filed 05/18/16 Page 12 of 12

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________________

)

DL, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

)

______________________________________ )

Civil Case No. 05-1437 (RCL)

CORRECTED MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION AND BACKGROUND The named plaintiffs in this lawsuit—former preschool-age children in the District with various disabilities—allege that defendants have systemically failed to provide, or failed to timely provide, special education and related services to them and other children, in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and District of Columbia law. The plaintiffs have been divided into four subclasses and bring claims that correspond to distinct requirements of the IDEA. More specifically, plaintiffs’ claims relate to the District’s alleged failures to: (1) identify substantial numbers of children who are in need of special education and related services, (2) timely evaluate children for special education and related services, (3) timely issue eligibility determinations for special education and related services, and (4) provide smooth and effective transitions for children from Part C to Part B services.

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Given that this lawsuit was initiated in 2005, the Court has had ample opportunity to acknowledge the importance of the early intervention programs at stake in this litigation. Indeed, when executed properly, the early intervention mandated by the IDEA and at the core of plaintiffs’ complaint “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). These positive outcomes substantially advance the IDEA’s primary goal: “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 order to achieve its aim, the IDEA provides federal funding to states, including the District of Columbia, on the condition that they “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). More specifically, 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.” Reid, 401 F.3d at 519–20 (internal quotations omitted); 20 U.S.C. § 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)(1). The duties to identify, locate, and evaluate disabled children are collectively known as the “Child Find” obligation. 20 U.S.C. § 1412(a)(3)(A).
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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 personnel. See D.L. v. District of Columbia, 302 F.R.D. 1, 7 (D.D.C. 2013); 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(a)(3)(ii).
Dating back to 2005, the procedural history of this case is long and somewhat complex, centering in large part on issues relating to class certification. First, in August 2006 this Court certified a plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), defining it as:
All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive. DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C. 2006); see also Mem. Order 3–4, ECF No. 389. With this group of children serving as the original plaintiff class, in 2010, the Court found that the District’s policies were inadequate to meet its obligations under the IDEA and that they violated section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of
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disability in programs receiving federal funding. See Mem. Op. 4–5, ECF No. 389 (citing DL v. District of Columbia, 845 F. Supp. 2d 1, 10–17 (D.D.C. 2011)). First, on August 10, 2010, the Court partially ruled for plaintiffs on summary judgment and found that, at least through 2007, the District violated the IDEA and District law by denying a FAPE to numerous preschool-age children with disabilities. DL v. District of Columbia, 730 F. Supp. 2d 84, 95 (D.D.C. 2010). The Court in 2010 also found that, at least through 2007, the District violated the Rehabilitation Act by demonstrating “bad faith or gross misjudgment” in failing to bring itself into compliance with the IDEA, even though it “knew that [its] actions were legally insufficient.” See Mem. Op. 4–5, ECF No. 389.
Following this summary judgment ruling, the Court held a two-day bench trial on the 6th and 7th of April 2011 regarding the District’s liability and plaintiffs’ remaining claims for declaratory and injunctive relief for the period from January 1, 2008, through the trial. After hearing the evidence at trial, the Court found that the District’s prior liability extended to April 6, 2011. To remedy these violations, the Court then issued a structural injunction, which included programmatic requirements and numerical goals that would remain in effect until the District demonstrated sustained compliance. Mem. Op. & Findings of Fact and Conclusions of Law ¶¶ 138–76.
After the trial but 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 Federal Rule of Civil Procedure 23(a)(2) (“FRCP 23(a)(2)”). Wal-Mart essentially found that to establish commonality under FRCP 23(a)(2), a class must present a common question that is “capable of classwide resolution—
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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.
Immediately following Wal-Mart, the defendants in this case sought to decertify the
consolidated plaintiff class, arguing that it was too broadly defined to satisfy FRCP 23(a)(2)’s
commonality requirement. Essentially, the defendants argued that the single and undivided class
could not satisfy FRCP 23(a)(2) because it “bundled together 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). This Court rejected that argument, ruling that the
plaintiff class satisfied FRCP 23’s commonality requirement because it presented the common
question of whether or not each class member received a FAPE. The Court then ruled that the class
members’ “differing allegations only represent the differing ways in which defendants have caused
class members’ common injury,” that is, the “denial of their statutory right to a free appropriate
public education.” Id. at 45.
After the Court denied defendants’ motion to decertify the class, the District filed an appeal
to the D.C. Circuit and ultimately prevailed. The D.C. Circuit vacated the Court’s original order
on class certification grounds—which as a result effectively and entirely vacated the Court’s
various findings of liability. The Circuit remanded the case for further proceedings, holding:
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.
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DL v. District of Columbia, 713 F.3d 120, 126 (D.C. Cir. 2013).
On remand from the D.C. Circuit, this Court was to reconsider whether a “class, classes,
or subclasses may be certified,” id. at 129, and ultimately did so, certifying the following four
plaintiff subclasses in 2013:
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.
Mem. Op. 9, ECF No. 389.
After these subclasses were certified, plaintiffs submitted a second amended complaint,
alleging violations of the IDEA, Rehabilitation Act, and DC law specific to each subclass.
Following another round of discovery, the parties filed cross-motions for summary judgment in
2014. The Court partially granted plaintiffs’ motion for summary judgment, finding that the
District was liable for violating the IDEA and District law for the period up to April 6, 2011.
Specifically, these claims corresponded to the four subclasses and related to the District’s failure
to (1) identify substantial numbers of children who are in need of special education and related
services, (2) timely to evaluate children for special education and related services, (3) timely to
issue eligibility determinations for special education and related services, and (4) provide smooth
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and effective transitions for children from Part C to Part B services. Mem. Op. 9–14, 16–20, ECF No. 444. The Court did not grant plaintiffs summary judgment on their Rehabilitation Act claims for that same period, concluding that based on the record, it could not determine “whether the District’s actions reached ‘bad faith or gross misjudgment’ as to each subclass.” Id. at 15, 20.
In addition to partially ruling for plaintiffs, the Court also partially ruled for defendants on summary judgment. Specifically, the Court ruled for defendants on (1) plaintiffs’ IDEA and District law claims related to the failure timely to evaluate children for special education and related services for the period from April 6, 2011 to the present, and (2) all of plaintiffs’ Rehabilitation Act claims for the period from March 22, 2010 to the present. Id. at 36–37, 39–42; see also Order, ECF No. 491.
The remainder of plaintiffs’ claims went to trial. These claims fell into two categories and relate to two distinct time periods. First, plaintiffs allege that the District has violated the IDEA and District law from April 6, 2011 through the present by failing to adequately identify preschoolage disabled children for the purpose of offering them special education and related services (subclass 1); failing to timely issue eligibility determinations for special education and related services for preschool-age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4).
Second, plaintiffs claim that the District violated the Rehabilitation Act for the period up to March 22, 2010 by failing adequately to identify preschool-age disabled children for the purposes of offering them special education and related services (subclass 1); failing timely to evaluate preschool-age children for special education and related services (subclass 2); failing timely to issue eligibility determinations for special education and related services for preschool-
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age children (subclass 3); and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday (subclass 4); and that the District acted in bad faith or gross misjudgment as to each subclass.
Trial was held on the 12th, 13th, and 16th of November 2015. Based on all of the evidence and argument presented, the Court makes the following findings of fact and conclusions of law, and will, consistent with these findings, enter judgment in favor of plaintiffs. In short, the District has improved, but started at such a low base when this litigation began, that it is still failing to comply with federal and District law. II. FINDINGS OF FACT
A. CREDIBILITY OF PLAINTIFFS’ WITNESSES 1. Dr. Carl J. Dunst
1. Plaintiffs retained Dr. Carl Dunst as an expert to study and assess the District’s compliance with its Child Find-related obligations. Direct Test. of Dr. Carl J. Dunst ¶ 7, Oct. 22, 2015, ECF No. 475-1 (“2015 Dunst Direct”).1
2. Dr. Dunst holds a Bachelor’s degree in education from Temple University, a Master’s degree in Early Childhood Special Education from the George Washington University, and a Doctorate in Developmental Psychology from the George Peabody College at Vanderbilt University. Id. at ¶ 1.
1 The Court cites the redacted version of Dr. Dunst’s testimony, which was filed publicly. In all cases in which a document was both filed publicly with protected information redacted pursuant to the Court’s Protective Order, see ECF No. 407, and under seal without redactions (as with Dr. Dunst’s written direct testimony), the Court cites to the public version, but relied on the sealed information as necessary.
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3. Dr. Dunst has worked as an early intervention practitioner, has directed an IDEA Part C early intervention and a Part B preschool special education program, and has taught numerous courses on infant and preschool development, assessment, and intervention practices. Id. at ¶ 2.
4. From 2003 to 2010, Dr. Dunst was the Principal Investigator at a research and training center funded by the U.S. Department of Education, Office of Special Education Programs (“OSEP”) called the Tracking, Referral, and Assessment Center for Excellence (“TRACE”). Id. at ¶ 4. TRACE investigated Child Find-related practices in IDEA Part C early intervention and IDEA Part B preschool special education programs in all 50 states, the District, and other jurisdictions, and researched and developed evidence-based practices for improving Child Find-related activities. Id. He has also been the Principal Investigator or Co-Principal Investigator of other OSEP-funded research and training projects that focus on early childhood intervention practices. Id. at ¶ 5.
5. Dr. Dunst is currently a Research Scientist and Director at the Orelena Hawks Puckett Institute in Asheville and Morganton, North Carolina, where he conducts research, evaluation, intervention, and training in Part C, Part B, early Head Start, Even Start, childcare and preschool practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at ¶ 3.
6. Due to his extensive experience, Dr. Dunst is a recognized expert in infant and early childhood assessment practices, family systems intervention practices, infant and early childhood intervention practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at ¶ 6; see also E-mail from Jerri Johnston-Stewart, OSSE, to Alison Whyte, May 27, 2010, Pls.’ Ex. 125, at 1 (“Dr. Carl Dunst is one of the leading authorities in [the] United
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States on early childhood/early childhood special education and is highly regarded among OSEP and its technical assistance providers.”).
7. Dr. Dunst has received a number of awards from professional organizations for his research and practice. Id. ¶ 6. He has an extensive list of publications about Child Find-related policies and practices. Curriculum Vitae of Carl J. Dunst, Pls.’ Ex. 268, at 22–100.
8. During trial and in post-trial filings, the District attacked the credibility of Dr. Dunst on the basis that he had never logged into or received relevant training on the District’s database, called Special Education Database System, or “SEDS.” See Trial Tr., Nov. 12, 2015, 102:20–25, 108:7–13; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 12, ECF No. 513. The Court has previously considered and rejected this argument, finding that Dr. Dunst is qualified to analyze the District’s Child Find-related obligations and assess its compliance. See Mem. Op. 26 n.1, ECF No. 444 (“[I]t is not clear why Dr. Dunst needed to understand how the database operates in order to analyze the data pulled from it.”).
9. For these reasons, following the previous trial, the Court found that Dr. Dunst is a qualified expert in analyzing the District’s Child Find-related obligations for preschool-age children. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 8, ECF No. 294. The Court also found that Dr. Dunst “testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how his conclusions were based on both his research and personal experience in the field.” Id. at ¶ 9. Based on the paragraphs above, the Court makes the same findings for the current period.
2. Dr. Leonard Cupingood 10. Plaintiffs retained Dr. Leonard Cupingood as an expert to study and provide statistical analysis of the District’s data related to its compliance with IDEA requirements related
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to special education services. 2015 Cupingood Direct Test. ¶ 22, Oct. 22, 2015, ECF No. 475-2 (“2015 Cupingood Direct”).
11. Dr. Cupingood holds a Bachelor’s degree in Mathematics from Rutgers University and a Master’s and a Doctorate in Statistics from Temple University. Id. at ¶ 1.
12. Dr. Cupingood is currently a Director of BLDS, LLC, a position in which he develops and applies statistical models and analyses for a wide variety of settings and industries. Id. at ¶ 2. He has extensive experience conducting statistical analysis in a variety of litigation matters, including employment discrimination cases and audits of insurance companies regarding claims processing. Id. at ¶¶ 2–3. He has provided deposition and trial testimony as a database expert and as a statistician. Id. at ¶¶ 9–10.
13. Dr. Cupingood is a member of the American Statistical Association and has published several statistics-based articles. Id. at ¶ 8. Curriculum Vitae of Leonard A. Cupingood, Pls.’ Ex. 269, at 3.
14. For these reasons, following the previous trial, the Court found that Dr. Cupingood is a qualified expert in statistics. Mem. Op. & Findings of Fact and Conclusions of Law ¶ 14, ECF No. 294. The Court also found that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s Child Find-related obligations, including the timeliness of the District in determining the eligibility for special education and related services of children ages three through five, and the number of preschool-age children who were referred each year for special education services Id. at ¶¶ 14–15.
15. In addition to statistics, Dr. Cupingood is an expert in computer programming and databases. 2015 Cupingood Direct ¶ 5. He started working as a computer programmer in 1968 for Leeds and Northrup Company. Id. There, he developed computer programs to monitor power
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systems and was the lead programmer responsible for developing a system to monitor power to Disney World’s monorail that ran to its rides before the amusement park opened in 1971. Id. In 1972, he began working for Ketron, Inc., a consulting firm that obtained government contracts to analyze the effectiveness of social programs. Id. at ¶ 6. On that project, he developed computer programs to analyze survey and census data, constructed databases to organize the data, cleaned the data for inconsistencies, and then analyzed the cleaned data. Id.
16. Later, Dr. Cupingood began working on litigation-related data analysis. Id. at ¶ 7. For example, in employment cases, he reviewed employer databases for inconsistencies (e.g., multiple Social Security Numbers or dates of birth corresponding with a single name), cleaned the data, and then analyzed the cleaned data. Id. Each employer had its own database with different data organization techniques and variables. Id. In some cases, if the employer did not use an electronic database, he had to build a database from the company’s paper records before he could analyze the data. Id. Over the course of 40 years, he worked as a database manager—requiring computer programming, database construction, and cleaning skills—on approximately 300 cases. Id.
17. Since he obtained his doctorate in 1985, he has offered testimony as a statistical expert in approximately 40 cases. Id. at ¶ 9. Although the primary focus of his testimony in those cases has been statistical analysis, he would not have been able to perform that analysis if he had not initially performed the programming and required data cleaning. Id. He does not recall a single case in which he provided testimony as a statistical expert in which he did not also perform or supervise all of the necessary programming and data cleaning. Id. Moreover, in a small number of cases, Dr. Cupingood has testified as a database expert only. Id. at ¶ 10.
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18. In the 1980’s, Dr. Cupingood was appointed by a Special Master in the United States District Court of the Eastern District of Pennsylvania as an automation consultant. Id. at ¶ 11. His responsibility was to supervise computer programmers to ensure that the data system, which they created to monitor the referral and dispatching process of a union operating under the court’s supervision, collected the necessary data and produced the required output. Id. Thus, over 20 years ago, Dr. Cupingood was recognized as an expert in the field of computer programming and databases.
19. Dr. Cupingood has substantial additional experience in computer programming and statistics. Cupingood Supplemental Direct Test., Nov. 2, 2015, ECF No. 489-1. Similar to Dr. Dunst, at trial and in post-trial filings, the District attacked Dr. Cupingood’s credibility because he had never logged into SEDS or received training on the database. Trial Tr., Nov. 12, 2015, 30:20– 31:9, 44:25–45:3; Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 4, ECF No. 513. The Court previously rejected these arguments and will do the same today. Mem. Op. 30, ECF No. 444 (“Dr. Cupingood does not need to have any particular understanding of special education policies or databases to assess the data provided to him. Furthermore, it is entirely unclear to the Court why Dr. Cupingood needed to access the database himself rather than rely on the data provided by the District.”).
20. Based on findings paragraphs 11–19, the Court again finds that Dr. Cupingood is a qualified expert in statistics, and also finds that he is an expert in computer programming and databases. The Court also finds that Dr. Cupingood provided credible and compelling testimony during trial regarding the District’s data related to the number of preschool-age children who are enrolled, the number of preschool-age children who timely received an initial eligibility determination for special education and related services, the number of children who received a
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smooth and effective transition from Part C to Part B services, and the District’s special education databases.
3. Lauren Seffel 21. Plaintiffs moved for the admission under Rule 1006 of the Federal Rules of Evidence of a summary of facts related to individual children in the District who were referred for special education services, which was compiled by plaintiffs’ counsel. Plaintiffs’ Factual Summary, Pls.’ Ex. 270, ECF No. 456-1 (sealed). Over defendants’ objection, the Court granted that motion, see generally Mem. Op., ECF No. 478, and required the attorney that compiled the summary to appear for a deposition by the District’s counsel and to introduce the summary at trial and be subject to cross-examination. Id. at 16. Lauren Seffel, an attorney for plaintiffs, did so. Ms. Seffel provided credible testimony regarding the creation of plaintiffs’ Factual Summary. B. CREDIBILITY OF DEFENDANTS’ WITNESSES 22. The District offered the testimony of 13 fact witnesses, 11 of whom are District of Columbia’s Office of the State Superintendent of Education (“OSSE”) or District of Columbia Public Schools (“DCPS”) employees. Those witnesses testified regarding positive improvements in the District’s policies, procedures, and practices. These witnesses did not directly rebut or discuss the statistical conclusions of plaintiffs’ expert witnesses regarding the effectiveness of the District’s policies, procedures, and practices, nor did any of the District’s witnesses challenge the findings of plaintiffs’ Factual Summary. 23. Dr. Amy Maisterra is the Assistant Superintendent of Elementary, Secondary, and Specialized Education at OSSE. Direct Examination of Dr. Amy Maisterra ¶ 1, Oct. 22, 2015, ECF No. 477-1. She holds a doctorate in educational leadership from the University of Pennsylvania and a master’s degree in clinical social work from the Smith College School for
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Social Work. Her background includes professional experience in both educational and behavioral health. Id.
24. Kerda DeHaan is a Special Assistant for IDEA Part C at OSSE; she has spent approximately six years with the agency, and her work focuses on the District’s Part C program, also known at the Strong Start DC Early Intervention Program (“DC EIP”). Direct Examination of Kerda DeHaan ¶ 1, Oct. 20, 2015, ECF No 477-2.
25. Dr. Nathaniel Beers is the Chief Operating Officer (“COO”) for DCPS. Direct Examination of Dr. Nathaniel Beers ¶ 1, Oct. 21, 2015, ECF No. 477-3. He is also a developmental and behavioral pediatrician, and his background includes serving as the Chief of DCPS’s Office of Specialized Instruction, Executive Director of the Early Stages Center, and Deputy Director for Community Health Administration with the District’s Department of Health. Id. Dr. Beers was previously employed by Children’s National Medical Center in a variety of capacities, where, among other tasks, he oversaw the largest primary care clinic in the District. Id. He is a past president of the District of Columbia Chapter of the American Academy of Pediatrics and a current member of the Council of School Health for the National American Academy of Pediatrics. Id.
26. Dr. Travis Wright is the Deputy Chief for Early Childhood Education at DCPS. He holds a doctorate degree in human development and psychology from Harvard University. Direct Examination of Dr. Travis Wright ¶ 1, Oct. 21, 2015, ECF No. 477-4. His areas of expertise focus on teaching in highly stressed communities, teaching children who have experienced trauma, and early childhood education. Id. Dr. Wright has been a faculty member in education at George Washington University and the University of Wisconsin-Madison. Id. Dr. Wright has served as the Research in Review Editor for Young Children, a journal published by the National Association for the Education of Young Children, and he was a Board Member of the Early
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Childhood Education Special Interest Group of the American Educational Research Association. Id.
27. Donna Anthony is the Assistant Superintendent for Health and Wellness at OSSE. Direct Examination of Donna Anthony ¶ 1, Oct. 22, 2015, ECF No. 477-5. Through October 16, 2015, she worked at DCPS, primarily serving as Chief of Staff and Interim Chief of the Office of Specialized Instruction. Id. She holds a master’s degree in public health from George Washington University. Id.
28. Brian Massey is the Child Find Field Coordinator for Ward 6, at the Early Stages Center. Direct Examination of Brian Massey ¶ 1, Oct. 22, 2015, ECF No. 477-6. Previously, Mr. Massey served as the Child Find Field Coordinator for Medical Constituency Outreach at Early Stages, and he has worked as a classroom educator at the Capital City Public Charter School in Washington, D.C. Id.
29. Sean Compagnucci is the Executive Director of the Early Stages Center. Direct Examination of Sean Compagnucci ¶ 1, Oct. 22, 2015, ECF No. 477-7 (“Compagnucci Direct”). Mr. Compagnucci joined Early Stages as a Child Find Field Coordinator shortly after the organization was created in 2009; he has also held the positions of Child Find Program Manager and Deputy Director. Id.
30. Carla Watson is the Deputy Chief of Compliance and Policy for the Office of the Chief Operating Officer at DCPS. Direct Examination of Carla Watson ¶ 1, Oct. 21, 2015, ECF No. 477-8. She has worked as a child advocate, providing legal services in New York, and as a guardian ad litem and education advocate for students in foster care in the District. Id. Ms. Watson joined DCPS in February 2008, as a Senior Policy Associate on the Special Education Reform Team and has subsequently worked on and overseen compliance and policy. Id.
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31. Jessica Roche is the Director of the Policy and Legal Strategy Team within the Compliance and Policy Division at DCPS. Direct Examination of Jessica Roche ¶ 1, Oct. 22, 2015, ECF No. 477-9. She began working for DCPS as a Program Coordinator on the Least Restrictive Environment Support and Policy Team in August 2011, and has been promoted several times to her current position. Id. Ms. Roche holds a B.S.Ed. in Inclusive Elementary and Special Education and is licensed to practice law in both New Hampshire and Massachusetts. Id. She works under Ms. Watson, and her work focuses primarily on Early Stages compliance and monitoring. Id.
31(a). Peter Marshall is a manager with Public Consulting Group, Inc. (PCG). His division of PCG—PCG Education—is a provider of comprehensive, web-based student case management solutions for special education. Direct Examination of Peter Marshall ¶ 1, Oct. 22, 2015, ECF No. 477-10. The District’s Special Education Data System (SEDS) is a customized version of one such product, EasyIEP. Id. at ¶¶ 1–2.
31(b). At the time of trial, Jeff Noel was the Assistant Superintendent of Data, Accountability, and Research for OSSE. Direct Examination of Jeff Noel ¶ 1, Oct. 22, 2015, ECF No. 477-11. Prior to serving in this position, he was OSSE’s Data Management Director for four years, and he has been involved in the design and maintenance of education data systems since 1997. Id.
31(c). Anupama Proddutur is a Data Analyst for OSSE. Direct Examination of Anupama Proddutur ¶ 1, Oct. 22, 2015, ECF No. 477-12. She is assigned to the Specialized Education Data Team, where she is responsible for special education data collection and reporting, including federal reporting to the OSEP. Id. at ¶¶ 1–2.
31(d). Chenise Purvis is the mother of a child who went through the Early Stages Process, and she provided testimony regarding her experience with and impressions of Early
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Stages and its staff. Direct Examination of Chenise Purvis ¶¶ 1–5, Oct. 22, 2015, ECF No. 47713.
32. Dr. Maxine Freund is the Associate Dean for Research and External Relations at the George Washington University’s Graduate School of Education and Human Development. Direct Examination of Dr. Maxine Freund ¶ 1, Oct. 22, 2015, ECF No. 477-14 (“2015 Freund Direct”). Dr. Freund is also a tenured professor in the University’s Department of Special Education and Disabilities Studies and a resident of the District. Id.
33. During her thirty-year career as a professor, Dr. Freund has designed and implemented doctoral leadership programs and master’s degree programs that, among other things, prepared infant and early childhood specialists for early intervention work with atypical infants, toddlers, and preschoolers. Id. Many of these programs were funded by the United States Department of Education through competitive grant programs and by national and local foundations interested special education for at-risk and special-needs populations. Id.
34. Dr. Freund has authored extensive publications and presentations in the special education and early childhood education fields. Defs.’ Ex. 55, at 5–12. As an Associate Dean of the George Washington University, she also directs doctoral candidates’ dissertations on special education and early childhood education and has developed a specific focus on the special education eligibility determination process for preschool-age children. Id.
35. Based on paragraphs 32–34, the Court concludes that Dr. Freund is qualified as an expert to analyze the District’s Child Find obligations as they relate to preschool children. The Court also finds that Dr. Freund testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how her conclusions were based on her research, personal experience in the field, and in depth examination of the District’s preschool Child Find system.
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36. Like the District’s fact witnesses, however, Dr. Freund was largely silent as to the statistical conclusions of plaintiffs’ expert witness, which plaintiffs offered to highlight the ineffectiveness of the District’s policies, procedures, and practices.
C. BACKGROUND 37. Part B of IDEA concerns special education and related services for three-to-fiveyear-old children. 20 U.S.C. §§ 1411–1419 (“Assistance for Education of All Children with Disabilities”); § 1412(a)(1)(a) (requiring states to have “in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive”). 38. Early Stages is a DCPS center, which is the primary facility for providing Part B special education screenings, evaluations, and eligibility determinations for three-to-five-year-old children in the District. See Compagnucci Direct ¶ 2; see generally Expert Report of Dr. Maxine Freund, Sept. 14, 2009, ECF No. 172-2 (“2009 Freund Report”). Early Stages is also responsible for outreach to find children in need of special education and related services. Compagnucci Direct ¶ 5. 39. If a parent, teacher, or any other person with knowledge of a child in the District has a concern that a child requires special education services, they can contact Early Stages. See Compagnucci Dep. 6:19–7:13, June 2, 2014, Pls.’ Ex. 15 (“Compagnucci Dep.”); Early Stages Family Care Manual, Feb. 8, 2011, Pls.’ Ex. 72, at DL2014 177 (“Family Care Manual”). Early Stages is required to screen the children, which it does through a questionnaire. See Compagnucci Direct ¶ 24; Compagnucci Dep. 8:11–9:9. Early Stages then assesses the child to determine the child’s needs. Compagnucci Direct ¶ 27.
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40. Once those assessments are performed (together referred to as the evaluation), see Compagnucci Dep. 26:10–13, Early Stages determines whether the child is eligible for special education and related services. See Compagnucci Direct ¶ 29. The District must complete the evaluation and provide an eligibility determination within 120 days of the child’s referral. See infra paras. 254–57, 262. If the child is eligible, then Early Stages must prepare an Individualized Education Plan (“IEP”) and identify a location (i.e., a school) where the services will be provided. Compagnucci Direct ¶ 29; Compagnucci Dep. 13:7–14:4.
41. Services include (1) special education and (2) related services. Special education is “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” 20 U.S.C. § 1401(29). Related services are “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . . .” 20 U.S.C. § 1401(26).
42. At the time of the last trial, Dr. Nathaniel Beers was the Executive Director of Early Stages. Test. of Nathaniel Beers ¶ 1, Mar. 16, 2011, ECF No. 210-1 (“2011 Beers Direct”). Sean Compagnucci is now the Executive Director. Compagnucci Direct ¶ 1.
43. Part C refers to the part of IDEA that relates to special education services for children younger than three years old. 20 U.S.C. §§ 1431–1444 (“Infants and Toddlers with Disabilities”); § 1432(5) (defining “infant or toddler with a disability”). Children in Part C receive an Individual Family Service Plan (“IFSP”), rather than an IEP. See Family Care Manual, Pls.’ Ex. 72, at DL2014 194. Part C services are the responsibility of a District program called Strong Start, not Early Stages. Direct Examination of Kerda Dehaan ¶ 1.
44. The District has summarized the main differences between Part B and Part C services:
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Early intervention [Part C] services are provided within a natural environment for the child [e.g., the home] and services are family centered. They can include nursing and medical care in some cases. . . . Special education [Part B] services are usually provided in a public school, Head Start center, or inclusive community early care and education center. [Part B] [o]nly provides nursing or medical care services [i.e., related services] that are considered necessary for the child to access educational programs. Family Care Manual, Pls.’ Ex. 72, at DL2014 194. 45. Pursuant to the IDEA, children must receive a “smooth and effective” transition from Part C to Part B services by the child’s third birthday. 20 U.S.C. § 1412(a)(9). That requires Part B special education and related services to be provided to transitioning children by their third birthdays. Id. (“By the third birthday of such a child, an individualized education program . . . has been developed and is being implemented for the child”); Mem. Op. 39, ECF No. 444 (“All services must commence for a transition to be smooth and effective.” (emphasis in original)).2 46. On April 15, 2014, the District issued Policies and Procedures for the Extended IFSP Option for Children age three to four. See Pls.’ Ex. 52. This policy permits parents to choose to have their child receive their Part C services, with an educational component, until the beginning of the school year after he or she turns four years old. Id. at 2. 47. The District Office of the State Superintendent of Education (“OSSE”) is the State Education Agency (“SEA”) for the District “serves as the lead and local agency for Part C,” and “fulfills state-level obligations for Part B and Part C of IDEA.” Direct Test. of Amy Maisterra ¶ 3, Mar. 16, 2011, ECF No. 210-3 (“2011 Maisterra Direct”). “OSSE is responsible for monitoring the performance of the District’s Local Education Agencies (‘LEAs’), of which [DCPS] is the largest.” Id; see also Direct Examination of Amy Maisterra ¶ 5, Oct. 22, 2015, ECF No. 477-1
2 The Court granted the District’s motion for reconsideration of this statement insofar as “the appropriate standard for implementation of an IEP shall be determined post-trial.” Order, ECF No. 480.
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(“2015 Maisterra Direct”). OSSE assumed these roles from DCPS after OSSE was created in 2007. 2009 Freund Report 4.
48. OSSE obtains federal IDEA Part B funds from OSEP and allocates those funds among District LEAs. 2011 Maisterra Direct ¶¶ 8, 21. Accordingly, OSEP monitors OSSE’s compliance—and OSSE monitors LEAs compliance—with IDEA Part B requirements. Id.
49. Dr. Amy Maisterra is OSSE’s Assistant Superintendent of Elementary, Secondary, and Specialized Education. 2015 Maisterra Direct ¶ 1. She was previously OSSE’s Assistant Superintendent for the Division of Specialized Education. Maisterra Dep. 6:11–14, June 2, 2014, Pls.’ Ex. 14. OSSE’s Division of Specialized Education “is responsible for overseeing the development and promulgation of state policy governing special education; monitoring LEAs for compliance with IDEA as well as other federal and local regulations and court-ordered consent decrees; allocation and administration of IDEA grant funds to LEAs and other public agencies; provision of training and technical assistance to LEAs; and investigation and resolution of state complaints relating to special education.” OSSE website, Pls.’ Ex. 58.
50. DCPS keeps documents and data related to children who receive referrals to Early Stages in the Early Stages database, part of which is then uploaded into a different database, called the SEDS. Compagnucci Dep. 20:14–21:2, 21:17–22:11, 32:13–33:2, 43:3–6, 43:15–44:16, 45:9– 48:10, Aug. 12, 2014, Pls.’ Ex. 21. OSSE requires documents and data related to children who receive referrals to be uploaded into SEDS. 2011 Maisterra Direct ¶ 7; Maisterra Dep. 336:18– 337:3, July 2, 2014, Pls.’ Ex. 18.
51. OSSE uses SEDS to prepare statistics for this case and for reporting to OSEP. Direct Examination of Anupama Proddutur ¶ 2, ECF No. 477-12 (“Proddutur Direct”); Proddutur Dep., July 2, 2014, Pls.’ Ex. 18; Maisterra Dep. 336:18–337:3, July 2, 2014, Pls.’ Ex. 18. These
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statistics include data such as the number of children who have IEPs at a given point in time, the percentage of children who receive an eligibility determination within 120 days over a given period of time, and the percentage of children who receive a smooth and effective transition from Part C to Part B services over a given period of time. See Proddutur Direct ¶ 2. To calculate the percentage of children who receive a smooth and effective transition from Part C to Part B services, in addition to SEDS, OSSE uses data from the Early Stages database and the Part C database (a separate database that tracks data related to children receiving Part C services). See Proddutur Dep. 164:17–165:11, July 2, 2014, Pls.’ Ex. 18; Trial Tr., DeHaan Test., Nov. 13, 2015, 17:21–18:8.
52. Plaintiffs contend that the District’s policies, procedures, and practices are deficient, as evidenced in large part by the District’s own data. Essentially, they allege that the District’s statistics—which on their face help to demonstrate the District’s compliance—are prepared in a way that makes it appear that the District’s policies, procedures, and practices are more effective than they actually are. Indeed, the bulk of the plaintiffs’ evidence examines the data that underpins the District’s contention that it is and has been serving over 8.5% of the preschool-age population, performing timely eligibility determinations for over 95% of referred children, and smoothly and effectively transitioning over 95% of children into Part B. The plaintiffs argue that these numbers are inflated because the District applies incorrect assumptions and in some cases misreports outcomes. The District counters plaintiffs’ arguments primarily by focusing on the enactment and design of its policies and arguing that its reporting practices were “developed around the federal Department’s guidance.” Defs.’ Proposed Findings of Facts and Conclusions of Law ¶ 65, and produce accurate and valid results “across staff and across reports.” Id. at 64.
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In other words, the District fails to challenge plaintiffs’ evidence on its own terms. As the defendants point out, the plaintiffs litigation strategy has shifted from the 2011 trial to the more recent trial conducted in November 2015. See, e.g., Trail Tr., Nov. 12, 2015, 19:8–10 (District’s counsel: “[T]he statistics that plaintiffs offer today are not the statistics that the Court credited in 2011. It’s not apples to apples.”). Indeed, the plaintiffs’ arguments and evidence have evolved to focus on the outcomes and effectiveness of the District’s policies and the accuracy of its statistical conclusions in addition to the design of the polices themselves. See, e.g., id. at 20:6–8 (District’s counsel: “This time, unlike in 2011, plaintiffs will not critique any major or substantive aspect of the District’s preschool Part B program.”).
But as plaintiffs’ arguments have developed, the defendants for the most part presented evidence as though plaintiffs’ litigation strategy has remained constant since 2011. The District claims its statistics show its policies are effective and are implemented a way that complies with the IDEA’s requirements. In presenting this evidence, however, the District does very little to counter the plaintiffs’ core theory and substantial testimony that the District’s self-reported data significantly inflate the District’s actual rates of compliance. Even assuming the District “has always been clear with OSEP on how the District selects data points, collects data, and calculates statistics,” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 65 (quoting 2015 Maisterra Direct ¶ 15), it does not follow that the District’s assumptions are well founded and that its reporting is accurate.
Indeed, plaintiffs have offered ample evidence that speaks to the substance of the District’s statistics, while the District has responded primarily with conclusory assertions that its statistics are “accurate[e] and valid[] across staff and across reports,” id. at ¶ 64, and with evidence showing it has made noticeable improvements since 2011. In the Court’s view, however, substantial
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progress and good faith efforts are insufficient to satisfy the IDEA’s affirmative duties. For the District to comply with the IDEA and District law, its policies and procedures must produce the proper results—something that plaintiffs’ evidence demonstrates they are currently failing to do.
53. While the District’s policies, procedures, and practices are important, the outcomes of those policies, procedures, and practices are even more critical. The Court made this clear when it adjudicated the motions for summary judgment. Mem. Op. 18–19, ECF No. 444 (“The question . . . is whether the District’s policies were successfully implemented, thus ensuring that the District met the required conditions.”); id. at 27 (“Indeed, evidence that the District is failing to identify, evaluate, determine eligibility for, and transition large numbers of students may necessarily reflect a failure in policies and procedures.”); id. at 34 (“While the District thoroughly details the policies it has enacted since 2010, the Court must also consider the effectiveness of these policies in achieving compliance with IDEA and D.C. law.”); id. at 38 (“[P]laintiffs’ statistics tend to show that the District’s policies—whatever they may be—have failed to ensure that eligibility determinations are timely.”) (emphases in original).
54. The Court also previously found, see Mem. Op. ¶¶ 60–63, ECF No. 294, and finds again, that the District has improved, and that its improvement, including reforms to the District’s Child Find-related policies, procedures, and practices, and the organization of the Early Stages Center, occurred during and because of this lawsuit. See accompanying Mem. Op. issued on this date, at 15–18.
55. Despite the District’s extensive testimony about the strengths of its program, see, e.g., Trial Tr., Maisterra Test., Nov. 13, 2015, 15:9–10, its deficiencies have continued, although to a lesser degree. The plaintiffs have provided evidence that corresponds specifically to the alleged harms suffered by each subclass, evidence which the District has not successfully rebutted.
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This evidence tends to demonstrate that despite the District’s efforts, it is failing to identify preschool-age disabled children for the purposes of offering them special education and related services, failing to timely determine the eligibility of preschool-age children for special education and related services, and failing to provide a smooth and effective transition from the early intervention program under Part C of the IDEA to preschool special education and related services under Part B by the child’s third birthday.
D. CHILDREN RECEIVING SPECIAL EDUCATION SERVICES 56. As described below, the District should be providing special education and related services to at least 8.5% of its preschool-age population. See infra paras. 59–82. The District contends that it served between 8.40% and 9.89% of that population monthly since January 2013, when it began producing monthly data. See District of Columbia Monthly Enrollment Reports, Defs.’ Ex. 53, at 5–6 (displaying a high in Mar. 2013 of 9.89%), 45–46 (displaying a low in Nov. 2014 of 8.40%); see also Pls.’ Ex. 285, at 1; Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 101. These numbers, however, are not accurate, in large part because they are calculated using an outdated census figure. See infra paras. 86–95. 57. When calculating its data appropriately (e.g., using an annual population estimate rather than the 2010 census figure), the District served a high of 8.04% of its preschool-age population in March 2013, a figure which fell nearly monthly to a low of 6.27% in November 2014. See infra para. 84. In other words, the District failed to provide special education and related services to between 98 and 515 children, varying monthly, since 2013. Id. The District contends that it is screening over half of its preschool-age population. See Trial Tr., Beers Test., Nov. 13, 2015, 21:13–18; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 77–78 (describing the safeguards and procedures the city has in place to ensure that families are able to
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“receive developmental screenings”). Despite these efforts, at any given time, hundreds of children are still not receiving needed special education and related services.
58. Moreover, the District reported to OSEP that it provided special education and related services to 1,429 three-to-five-year-old children for 2014-2015, which amounts to only 6.19% of the District’s preschool population. See infra para. 96. That is a decline of approximately 19% since 2011 and is essentially equal to the average percentage of children served nationwide. See supra paras. 97–98. Based on its risk factors, the District should be serving substantially more children than the national average. The District is far from meeting the 8.5% benchmark.
1. The District Should Be Serving at Least 8.5% of Its Preschool-age Population with Special Education and Related Services
59. OSEP tracks the percentage of children who receive special education and related services in each state and similar jurisdictions. 2015 Dunst Direct ¶ 44. The District has historically provided special education and related services to the lowest or near the lowest percentage of preschool-age children in the United States. 2015 Dunst Direct ¶¶ 45–46; see infra paras. 191–99; see also Mem. Op. ¶¶ 25–28, ECF No. 294. That is true despite the fact that, based on risk factors in the District, and the fact that it is the only entirely urban jurisdiction, it has the largest percentage of children who may be eligible for special education services. 2015 Dunst Direct ¶¶ 36–43; see also Mem. Op. ¶¶ 29–30, ECF No. 294. Otherwise said, the District has had the highest need for special education services, but has historically provided those services to the fewest children. 2015 Dunst Direct ¶ 43.
60. In 2011, the Court found that the District violated federal and District law by failing to provide Part B services to a substantial number of three-to-five-year-old children. Mem. Op. ¶¶ 111–13, ECF No. 294. The Court also found that, “on the low end, the District should expect to be serving 8.5% of its preschool-age population with Part B services.” Id. at ¶ 30. Accordingly,
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the Court ordered the District to “ensure that at least 8.5 percent of children between the ages of three and five years old, inclusive . . . who reside in or are wards of the District of Columbia, are enrolled in special education and related services under Part B of IDEA.” Id. at ¶ 147.
61. At the recent trial, Dr. Dunst again explained why the District should currently be serving at least 8.5% of its preschool-age population with Part B services, a figure that is in line with the Court’s benchmark set in 2011. 2015 Dunst Direct ¶¶ 29–40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25–119:7, 128:6–19. Dr. Dunst based this figure upon evidence related to risk factors in the District, comparisons to other jurisdictions, and incidences of developmental delays nationwide. 2015 Dunst Direct ¶¶ 29–40; Trial Tr., Dunst Test., Nov. 12, 2015, 117:25–119:7, 128:6–19. He explained that the relevant risk factors in the District are high, meaning that children in the District face higher risks of experiencing developmental disabilities than the national average. 2015 Dunst Direct ¶¶ 41–42. These greater risk factors contribute to the relatively high target 8.5% enrollment rate, which is a few percentage points above the national enrollment figure. Id. And importantly, these risk factors have not materially changed since 2011, when the Court first found that the 8.5% enrollment benchmark was appropriate. Id.; see also U.S. Census Bureau, Small Area Income and Poverty Estimate, Under Age 5 in Poverty, Pls.’ Ex. 193, at 4 (2007, 26.1% in poverty; 2013, 26.8% in poverty); see generally Data Related to Risk Factors, Pls.’ Ex. 287. Looking to the specific risk factors, as of the November 2015 trial, 55% of the number of children in the District live in single parent households, see Pls.’ Ex. 287, at 4126, 15% live in non-English speaking households, id. at 4130, 14% live in households where parents have less than a high school education, id. at 4131, 23% of households receive assistance through the Supplemental Nutrition Assistance Program (the highest in the country), id. at 4132, 33% live in
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concentrated poverty areas, id. at 4134, and 22% of families experience severe housing problems,
id. at 4135.
62. Dr. Dunst’s conclusion that the District should be serving 8.5% of its preschool
population is also entirely consistent with the District’s documents and Dr. Beers’ testimony at
the last trial, although at that time Dr. Beers suggested that the benchmark should be even higher.
The Early Stages Family Care Manual states: “Given DC’s risk factors for developmental delays,
including low birth weight, poverty, and HIV/AIDS infection, DC’s projected identification rate
is about 12%.” See Pls.’ Ex. 72, at DL 204. When asked at his 2011 deposition about how the 12%
figure was derived, Dr. Beers testified that it was an estimation based upon the identification rates
of other urban jurisdictions, namely Atlanta and Detroit, which “range[d] between 10 to 12
percent, but [the District] picked 12 percent as an aggressive target that [it] wanted people to strive
towards.” Beers Dep. 61:12–62:11, Mar. 1, 2011, Pls.’ Ex. 12. At the recent trial, Dr. Beers
explained that he initially looked at a range of 10-12%, and then looked at a range of 8-12%:
I believe in my testimony here when we talked in 2011, we talked about a range from 10 to 12 percent. We were still at that point moving rapidly and we had gone from about 2 percent of the eligible kids to about 4 percent of eligible ki[d]s at the time we appeared in court at that time. So at that point we had also a better estimation of what we were going to get when we were screening kids and started talking about a range of 8 to 12 percent as where we thought was a reasonable place for us to get over time, recognizing that I had no data when I arrived in 2009.
Trial Tr., Nov. 13, 2015, 20:22–21:6; see also Mem. Op. ¶ 30, ECF No. 294.
63. Whether it is Dr. Dunst talking about 8.5%, or Dr. Beers talking about 10 to 12%
(or 8 to 12%), both individuals were addressing the percentage of children who would be served.
Dr. Dunst testified that the District “should expect to be serving 8.5 percent of its preschool-age
population with Part B services.” 2015 Dunst Direct ¶ 40. Although other language in his direct
examination made it appear as though he meant this to relate just to children who are found eligible
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for Part B services, he explained that he meant it as an estimate of “eligibility, enrollment, and provision of services.” Trial Tr., Dunst Test., Nov. 12, 2015, 130:15–16. Indeed, he provided extensive testimony comparing the number of children receiving special education and related services in the District with the 8.5% benchmark. 2015 Dunst Direct ¶¶ 43–88. Dr. Beers similarly explained, at the last trial, that the District’s “identification rate” relates to children receiving services. See Trial Tr., Apr. 6, 2011, Pls.’ Ex. 6, 175:23–176:18.
64. The 8.5% benchmark is also consistent with portions of Dr. Freund’s previous testimony. See Freund Dep. 57:3–7, Oct. 1, 2014, Pls.’ Ex. 22 (“[I]t certainly seems to be somewhere in the 8 percent area might be the current appropriate identification of children with disabilities preschool, given the current population.”).
65. It is also consistent with many of the District’s own documents. For example, the District’s Special Education Monitoring & Compliance Manual (IDEA Part B) from August 2014 uses 8% as the enrollment benchmark:
Child Find monitoring is a process designed to ensure that students with disabilities are being appropriately identified and served by their LEAs. Twice a year, OSSE will review the enrollment rates for students with qualifying disabilities under IDEA at each LEA. LEAs that have special education enrollment rates of less than 8% of the total student population will be reviewed to ensure that the LEA has proper special education referral and eligibility processes in place, and to ensure that LEA staff understand their obligation to provide special education and related services to students with disabilities. Pls.’ Ex. 51, at 15 (emphasis added). 66. In addition, the current version of the Early Stages Manual, which is maintained online and is date stamped April 29, 2015, and includes updates as of April 2015, states: “Nationally, about 6% of three-to-five year olds are identified with developmental delays, but taking into consideration the additional risk factors in DC, including low birth weight, poverty,
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and HIV/AIDS infection, the number of children who are expected to be eligible has been estimated to be between 8.5% and 10.5%.” Pls.’ Ex. 61, at DL2015 2304.
67. All of this supports the conclusion that the District must show that it is serving 8.5% of its population of three-to-five-year-old children with special education and related services. The Court emphasizes that 8.5% is the minimum that the District should be achieving. 2015 Dunst Direct ¶ 40; see also Mem. Op. ¶ 30, ECF No. 294.
68. The District offers several contrary arguments. First, Dr. Freund believes that the 8.5% benchmark is arbitrary. 2015 Freund Direct ¶ 11. The Court disagrees. The Court made a reasoned conclusion based upon the evidence presented at the last trial, see Mem. Op. ¶¶ 29–30, ECF No. 294, and the findings above, including Dr. Beers and Dr. Freund’s statements, and the District’s own documents.
69. Second, Dr. Freund believes that the District has such a strong Child Find program that a numerical benchmark is unnecessary. 2015 Freund Direct ¶ 11. This argument, however, overlooks how critical it is for any organization to have a benchmark to avoid slippage. A benchmark is not necessary just for the Court to assess compliance; it is necessary for staff to understand what must be accomplished. As described above, Dr. Beers testified that, in 2009, he identified 12% as the goal because he “was asked to set forth an aggressive metric in order to make sure that we could get quick change.” Trial Tr., Nov. 13, 2015, 20:11–14.
70. The results of the District’s program confirm the need for a benchmark. Around the time of the last trial, when the District had a goal of 10 to 12%, it had a rapid rise in its enrollment rate. Trial Tr., Beers Test., Nov. 13, 2015, 20:11–21:1. However, during 2013 and 2014, around which time the District did not have an enrollment benchmark, the District’s enrollment in special education and related services fell by approximately 15%. See id. at 21:24–22:4 (stating the
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benchmark was abandoned); Compagnucci Dep. 32:18–33:1, June 3, 2014, Pls.’ Ex. 16 (stating
no enrollment benchmark was used in 2014); Maisterra Dep. 33:21–34:10, June 2, 2014, Pls.’ Ex.
14 (same); infra para. 85 (showing a fall in enrollment rate).
71. It is not clear to the Court why the District abandoned its benchmark. Dr. Beers
testified:
[W]e have seen that we’ve had a rapid rise in that percentage and started to see that stabilize. But we know that we also have a system where we have staff who believe we should continue to push. And even though we are in that 8 to 12 percent range, I don’t think that the staff are willing to sort of just rest on their laurels. So we have backed away from a special number and tried to use the target of really trying to make sure that we’re reaching more kids through our screening processes because that’s the way we start to make sure that we’re confident that we’re serving all the kids that need to be served.
Trial Tr., Nov. 13, 2015, 21:19–22:4. Indeed, the District discontinued its use of a benchmark even
though there was not a rapid rise in the enrollment percentage, at least recently. In fact, as described
below, there was a two-year drop. See infra para. 85. Moreover, the District is not currently in the
8 to 12% range. That conclusion is based on outdated census figures which the District does not
use in other similar circumstances. See infra paras. 86–95. The remainder of Dr. Beers’
explanation, that he does not think that his staff would rest on their laurels, does not explain why
the District would abandon a benchmark.
72. Third, Dr. Freund contends that “if the Court is inclined to ascribe compliance to a
number, . . . it would be better to look for the number of children served (over 1,450 children in
each month for nearly two full years) and find that this large number of children served is a
sufficient one to serve a numeric proxy for programmatic compliance.” 2015 Freund Direct ¶ 11;
see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 103 (“[S]ustained delivery
of special education services to more than 1,450 children . . . constitutes strong evidence of
compliance with the IDEA’s Child Find mandate.”). However, again, the number of preschool-
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age children with IEPs in the District fell over that two-year period and then began to rise again. See infra para. 85. Based on the District’s own measurement, 264 fewer children were receiving special education and related services in November 2014 than in March 2013, id., while at the same time the population of three-to-five-year-olds in the District was rising. See infra para. 89. This apparent backslide, coupled with the fact that the District’s three-to-five-year-old population is expected to continue to rise, see infra para. 90–91, demonstrates that any benchmark should reflect the rate of enrolled students, not the absolute number of enrolled students.
73. Relatedly, the District cites to Dr. Dunst’s 2010 testimony, where he stated the “District’s goal should be to serve between 600 and 1,100 preschool children in special education.” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 102 (citing Trial Tr., Nov. 12, 2015, 117:2–5, 119:22–25). The District argues that this statement undercuts Dr. Dunst’s testimony and supports its argument that the current absolute number of children being served shows the District is complying with the IDEA. Id. As plaintiffs point out, this figure of 600 to 1,100 preschool children ties to Dr. Dunst’s 2009 expert report, where he wrote that “[t]he different profiles shown in Exhibit B would indicate that DCPS should be locating and serving at least 6% of the preschool population in special education, or about 1100 children.” ECF No. 3587, at 13. At the time, six percent was that national average. Id. at 10–11.
Dr. Dunst continued in his report: Based on the poverty and teenage pregnancy rates in the District of Columbia, as well as the number of births, one would expect that the incidence of disability among preschoolers in the District to be greater than in most other States. In a study of the influences of poverty on the incidence of disability among preschoolers, a large percentage of birth to six year olds who lived in households at or below federal low income thresholds were more likely to have a disability than those who lived in households with higher incomes.
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Id. Looking to this text, plaintiffs argue that “in 2009, before Dr. Dunst calculated the appropriate benchmark based in part on the risk factors in the District, he stated that the District should be serving at least the national average, but likely more due to risk factors in the District.” Pls.’ Proposed Findings of Fact and Conclusions of Law 26 n.12. And the Court agrees, finding Dr. Dunst’s testimony in 2015 and in 2009 is consistent.
74. Fourth, the District argues that the 8.5% is too high because that target number does not properly account for what the District called “protective factors,” that is, conditions or policies that “buffer[] children against their negative effects” of the District’s heightened risk factors, such as poverty and homeless. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 97. For example, the District asked Dr. Dunst about how the existence of non-profits and other social organizations may reduce the number of children in need of special education and related services, see Trial Tr., Nov. 12, 2015, 123:17–124:9, 125:10–23, and Dr. Travis Wright testified on the District’s behalf that its non-profits contribute to a strong social safety net, see Trial Tr., Nov. 16, 2015, 16:24–17:14. Washington D.C.’s network of non-profits likely does indeed help to alleviate some of the negative developmental effects of risk factors like high homelessness and poverty rates, but child homelessness and poverty still exist in D.C. at staggering levels. See supra para. 61. In the Court’s view, the positive effects of such a non-profit network would materially affect the enrollment analysis if it decreased the incidence of the relevant risk factors. But to the extent that the non-profits do decrease rates of poverty and homelessness, etc., that decrease is already baked into Dr. Dunst’s analysis. In other words, the rates of the relevant risk factors are lower than they otherwise would be if D.C.’s network of non-profits did not exist. Therefore, Dr. Dunst’s analysis, which centers on risk factors, still incorporates much of the positive effects of protective factors.
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75. Adding to the protective factors, Dr. Wright testified that the District’s early childhood education programs (not specific to special education) were ranked best in the country. Trial Tr., Nov. 16, 2015, 16:24–17:14. This is of course a positive development, but the District did not analyze the specific impact that those or other programs may have on the percentage of children who should receive special education and related services. See id. at 20:14–17. Regardless of the aggregate impact of the protective factors, the 8.5% enrollment benchmark is conservative given the prevalence and impact of the District’s risk factors. See, e.g., Pls.’ Ex. 287, at 4131 (showing that 23% of households in D.C. receive assistance through the Supplemental Nutrition Assistance Program—the highest in the country). Moreover, it is in line with estimates contained in internal District documents, see supra paras. 65–66, and with testimony provided by Dr. Beers in 2011. See supra para. 62. As such, the Court finds that the conservative nature of the benchmark more than accounts for any impact the protective factors may have on the analysis.
76. Fifth, the District contends that, with a benchmark, or with the wrong benchmark, there is a risk of over-identification. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 100; Trial Tr., Wright Test., Nov. 16, 2015, 18:5–15. Such over-identification could harm children who do not need special education services by placing a label on them that could potentially last “throughout their educational career.” Trial Tr., Beers Test., Nov. 13, 2015, 2:15–24. However, if a child is referred and does not qualify for services, the child should not receive services and the District staff should understand that they should not be finding children eligible for special education services when they do not qualify. That appears to be what Dr. Freund meant when she testified that “if it over-identifies through screening, the evaluation process, [will] take care of that.” Trial Tr., Nov. 16, 2015, 32:22–24.
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77. The District may believe that it could not possibly meet the 8.5% benchmark, using the accurate, updated census figures, see infra paras. 86–95, because there are not enough children who need special education and related services, due to its improved programs or otherwise. However, in March 2013, the District almost achieved that number by serving 8.04% of its preschool-age population, as calculated using the appropriate numerator and denominator (the number subsequently fell). See infra para. 84. Moreover, other jurisdictions serve significantly more than 8.5% of their three-to-five-year-old population. See U.S. Department of Education, 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, 2014, Pls.’ Ex. 182, at 98–99 (showing that Arkansas, Kentucky, and Puerto Rico had 2012 three-to-five-year-old Child Count percentages of 10.6%, 10.3%, and 10.2%, respectively). At the moment, based on data reported to OSEP, the District is only serving 6.19% of its population, which is almost identical to the national average. See infra paras. 96, 98. In light of the risk factors in the District, and the fact that the District is the only entirely urban jurisdiction that reports to OSEP, it should be serving well over the national average. 2015 Dunst Direct ¶¶ 43, 88.
78. Sixth, the District argues that any benchmark should relate to children determined eligible, rather than children served, since that would comport with the identification requirement of the IDEA. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 93–94 (“[T]he number of preschool-age children for whom the District fulfilled its Child Find obligation (i.e., to identify, locate, and evaluate) necessarily exceeds enrollment in preschool Part B; conversely, enrollment does not directly approximate identification rates absent evidence to the contrary.”); id. at ¶ 95 (“Plaintiffs offered no reliable basis for determining how enrollment correlates to identification, location, or evaluation for Part B services.”). Moreover, Mr. Compagnucci testified that “enrollment is not a perfect proxy for Child Find because it fails to account for children who
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were identified but whose parents did not complete the IEP or enrollment processes, which can
happen for a variety of reasons.” Compagnucci Direct ¶ 19. Indeed, the District has argued
previously, in the context of class certification, that plaintiffs should be measuring identification
data, not enrollment data. Defs.’ Mot. to Decertify Subclass 1 4–6, ECF No. 467. However, as
described above, the 8.5% benchmark relates to children who should be receiving special
education and related services, not just children who should be determined eligible for such
services. See supra para. 63.
79. Moreover, in the Court’s opinion on October 23, 2015, it stated:
[D]efendants overlook that the enrollment numbers are used to help gauge the effectiveness of the District’s efforts to locate and identify disabled children in connection with their IDEA obligations. The Court agrees with the plaintiffs that “[t]he District’s enrollment rate does not define the subclass, but is instead a way to measure the effectiveness of the District’s policies and practices to the identification of children potentially eligible for special education services.” Pls.’ Opp’n 5. Indeed, in a recent Order [444], the Court ruled that low enrollment numbers “would suggest that the District has in fact failed in its obligations to locate disabled children.” Mem. Op. 35. As they always have, plaintiffs continue to use the enrollment figures as one of many potential ways to approximate the District’s success in identifying and locating disabled children—not as a means to define the boundaries of subclass 1.
Although there is reason to believe plaintiffs’ suggestion that enrollment figures gauge the District’s effectiveness in identifying and locating children, the Court welcomes the District to submit evidence to diminish that argument. For example, defendants are free to offer evidence to counter plaintiffs’ theory by showing that enrollment figures actually do not reasonably approximate identification rates.
Mem. Op. 11–12, ECF No. 482.
80. The District did not timely submit evidence to show that enrollment figures do not
reasonably approximate identification rates. See Order, ECF No. 498. And importantly, the
District’s own manual shows that it too uses enrollment rates to measure its Child Find
compliance:
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Child find monitoring is a process designed to ensure that students with disabilities are being appropriately identified and served by their LEAs. Twice a year, OSSE will review the enrollment rates for students with qualifying disabilities under IDEA at each LEA. Special Education Monitoring & Compliance Manual (IDEA Part B), Pls.’ Ex. 51, at 15. 81. Other District documents demonstrate that the District uses the terms “identification” and “enrollment” interchangeably. See, e.g., Trial Tr., Compagnucci Test., Nov. 13, 2015, 33:20–36:6 (explaining that the District’s enrollment data are generally referred to as identification data); Trial Tr., Proddutur Test., Nov. 13, 2015, 45:9–46:21 (describing the “Business rule for identification,” which relates to the calculation of enrollment data); District of Columbia Monthly Enrollment Reports 53, 56, 58, 60, 62, 64, 66, 68, Pls.’ Ex. 189 (showing the District’s monthly data reports identifying children “Receiving Services Under IDEA Part B” and, from that, calculating a “Total Identification” percentage). 82. This Court previously found that 8.5% is the appropriate benchmark. That percentage is based upon Early Stages’ own manual, the testimony of Dr. Beers, and the testimony of Dr. Dunst, and aligns with the benchmarks in the District’s own documents. It is by its very nature an estimate, and is not perfect. However, there is more than sufficient evidence supporting it. As described below, this Court will issue an injunction thereon. Like the prior injunction, it may be modified if either party subsequently proves that 8.5% does not accurately represent the percentage of 3-5-year-olds that should be receiving special education and related services. See ¶ 20, ECF No. 295.
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2. The District Is Failing to Serve Large Numbers of Children with Special Education and Related Services a. The District has failed to provide special education and related services to large numbers
83. Dividing the number of three-to-five-year-old children whom the District reports have an IEP (or an extended IFSP), by the annual census estimate, yields an average enrollment of 7.57% in 2013 (when the District began producing monthly enrollment data), 6.54% in 2014, and 6.90% in 2015. See Pls.’ Ex. 285, at 1. There was a maximum enrollment of 8.21% of children, and minimum of 6.40%, since 2013. See id.
84. Based on the parties’ sampling and data agreements,3 the District’s enrollment totals should be reduced by 2% to account for children who are not receiving special education and related services. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 5-6, ECF No. 514-2 (showing that two children identified as enrolled in the District’s 100-child sample had not actually received services). Doing so, the District reached, since 2013, a high of 8.04% ((1,742 × 0.98)/21,221, Mar. 2013) and a subsequent low of 6.27% ((1,478 × 0.98)/23,094, Nov. 2014). See Pls.’ Ex. 285, at 1. Based on the requirement of serving 8.5% of children, these figures indicate that, on a monthly basis, the District failed to serve between 98 ((21,221 × 0.085)–(21,221 × 0.0804)) and 515 ((23,094 × 0.085)–(23,094 × 0.0627)) children. See id. As this Court previously explained, such data “would suggest that the
3 During discovery, the parties agreed that plaintiffs would have access to three random 100-child samples (100 children whom the District identified as enrolled, 100 children whom the District identified as having timely received eligibility determinations, and 100 children whom the District identified as being smoothly and effectively transitioned from Part C to Part B services) and that the 100-child samples are sufficiently large so that errors in the District’s categorization of children within each sample would apply to the entire population from which the sample was chosen. E-mails among counsel regarding sampling methodologies. Pls.’ Ex. 130, 135.
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District has in fact failed in its obligation to locate disabled children.” Mem. Op. 35, ECF No. 444.
b. The number of children who the District reported as enrolled fell in 2013 and 2014
85. The number of preschool-age children with IEPs, as reported by the District, declined for nearly two years and only recently began to rise again. Pls.’ Ex. 285, at 1–2. In March 2013, the District hit a high of 1,742 children with IEPs. Id. After that time, the number fell by 264 to a low of 1,478 children in November 2014. Id. That is a decline of over 15%. There is no explanation for this decline. Since that low point, the number of children reported by the District as “enrolled” in Part B services has risen by 138 children, or about 9%. Id. at 1.
c. The district uses outdated census figures 86. To calculate the percentage of children enrolled in special education and related services, the number of children ages three to five, inclusive, receiving special education and related services is divided by the population of three-to-five-year-old children in the District. 87. For every period from 2013 to the present, the District has calculated its enrollment percentage using, for the denominator, the population from the 2010 decennial census. Proddutur Direct ¶ 4 (“Divide that number [of children with a current eligibility determination or IEP] by the population of three-to-five year olds in the District according to the decennial census.”); District of Columbia Monthly Enrollment Reports, Pls.’ Ex. 189 (showing that the denominator each month is 17,605, the 2010 census number, from 2013 through 2015). 88. The Census Bureau prepares annual population estimates, which adjust the Bureau’s decennial census to account for birth, death, and migration rates over the intervening year. See, e.g., District of Columbia State Data Center Fact Sheet, 2012 DC Population Estimates, Pls.’ Ex. 197, at 1. It is appropriate to use the U.S. Census Bureau’s annual estimates of the
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District’s population instead of using the 2010 decennial census figure to calculate the enrollment rate. 2015 Dunst Direct ¶¶ 71–73; Trial Tr., Cupingood Test., Nov. 12, 2015, 45:13–46:1 (stating the 2013 census estimate is more accurate for 2013 than the 2010 decennial census number).
89. The District has artificially inflated its enrollment percentages by relying on the 2010 census figures because the District’s population of three-to-five-year-old children had risen substantially over the last five years: 2010, 17,605 (6,267 three-year-olds, 5,795 four-year-olds, and 5,543 five-year-olds); 2011, 18,905; 2012, 19,799; 2013, 21,221; 2014, 23,094. 2015 Dunst Direct ¶ 73; U.S. Census Bureau 2014 Population Estimates, District of Columbia, Pls.’ Ex. 196, at 1, 4, 7, 10.
90. These numbers are likely to continue to rise. 2015 Dunst Direct ¶ 73. In the 2014 census estimate, the number of children ages zero, one, and two total 26,485, which is over 3,000 children more than the three-to-five-year-old estimate. See U.S. Census Bureau, 2014 Population Estimates, District of Columbia, Pls.’ Ex. 196, at 10; 2015 Dunst Direct ¶ 73.
91. This substantial growth is mirrored by the District’s projections for enrollment in school, which it uses for budgetary purposes. The projected enrollment rate for children in prekindergarten 3, prekindergarten 4, and kindergarten (or, as described with regard to charter schools, pre-school, pre-kindergarten, and kindergarten) for 2012 (the budget for which issued in 2011) was 16,814 (9,524 for DCPS and 7,290 for charter schools). District of Columbia FY2012 Proposed Budget and Financial Plan, vol. 3, Pls.’ Ex. 190, at D-19, D-52. The corresponding projected enrollment rate for 2016 is 19,549 (10,142 for DCPS and 9,407 for charter schools). District of Columbia FY2016 Proposed Budget and Financial Plan, vol. 3, Pls.’ Ex. 191, at E-1, D-77.
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92. If the District were to continue to use the 2010 census figure until 2020, then due to continuously rising population, there would be a dramatic—but entirely artificial—decline in the enrollment rate in 2020. 2015 Dunst Direct ¶ 74.
93. Therefore, is not surprising that the Census Bureau’s annual population estimates are required for purposes of grant determinations under the IDEA and are used by OSEP, OSSE, other District agencies and other states, for analysis of data related to these and other issues outside of this litigation. More specifically, the IDEA states that, “[f]or purposes of making grants, the Secretary [of Education] shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary.” 20 U.S.C. § 1411(d)(3)(A)(ii). Additionally, the annual population estimate is used by OSEP for its annual Child Count. Department of Education. See 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Act, 2014, Pls.’ Ex. 182, at 6 (“In this report [which catalogs Child Count data], annual resident population estimates for the 50 states and the District of Columbia were used to determine the percentages of the resident population served under IDEA, Part C and Part B, and to develop comparisons and conduct data analyses.”); id. at 98–99 (“Percentage for each state was calculated by dividing the number of children ages 3 through 5 served under IDEA, Part B, by the state in the year by the estimated U.S. resident population ages 3 through 5 in the state for that year, then multiplying the result by 100.”); 2015 Dunst Direct ¶ 71.
94. The District uses the U.S. Census Bureau’s annual population estimate to report data related to the percent of children receiving Part C services. The District is required to report to OSEP the “Percent of infants and toddlers birth to 3 with IFSPs compared to national data.” FFY 2013 Part C State Performance Plan (“SPP”)/Annual Performance Report (“APR”), Pls.’ Ex.
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241, at DL2015 3695. To calculate that percentage, the District used as its denominator what it referred to as the “U.S. Census Annual State Resident Population Estimates April 1, 2010 to July 1, 2013,” which it identified as 26,517 children. Id. That was the Census Bureau’s annual population estimate for children up to age 3 for 2013 as of the time of the District’s publication. See U.S. Census Bureau, 2013 Population Estimates, District of Columbia, Pls.’ Ex. 195, at 7 (totaling 9,111, 8,680, and 8,726 for zero-to-two-year-olds, inclusive).
95. The annual estimate is also used by numerous state and federal agencies, including the District’s own agencies, for numerous policy purposes. See, e.g., District of Columbia State Data Center Fact Sheet, 2012 DC Population Estimates, Pls.’ Ex. 197, at 1 (“The U.S. Census Bureau’s Population Estimates Program (PEP) produces estimates . . . [which] are used in federal funding allocations, as survey controls, as denominators for vital rates and per capita time series, and as indicators of recent demographic changes.”).
d. The District’s Child Count percentage is also falling 96. Every year, the District and the states are required to provide OSEP with “Child Count” data, which is the number of children in that jurisdiction receiving special education and related services. 2015 Dunst Direct ¶ 44; 34 C.F.R. 300.641(a) (“report the number of children with disabilities receiving special education and related services”); 34 C.F.R. 300.644 (“report children with disabilities who are enrolled in a school or program . . . that—(a) Provides them with both special education and related services . . . .”); OSEP EDFacts Submission System ages 3-5, Pls.’ Ex. 183, at 6 (“Include all children with disabilities (IDEA) who are ages 3 through 5 receiving special education and related services according to an individual education program or services plan on the count date.”). Enrollment should be measured in this case too by the receipt of the prescribed special education and related services.
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OSEP compares the District’s and states’ Child Count data to the U.S. Census Bureau’s annual population estimates for each jurisdiction to determine the percentage of preschool-age children enrolled in Part B services. This Court relied upon those percentages in prior years when it concluded that the District failed to provide special education and related services to sufficient numbers of children. Mem. Op. & Findings of Fact and Conclusions of Law ¶¶ 23–32, ECF No. 294. The District’s Child Count percentages for 3-5-year-olds are 7.6% for 2011-2012, 7.9% for 2012-2013, and 6.8% for 2013-2014. OSEP Part B Data Display 2015, Pls.’ Ex. 248, at 1. OSEP has not yet produced its report that identifies the Child Count percentages for the 2014-2015 school year. 2015 Dunst Direct ¶ 61. However, for that year, the District reported to OSEP that it provided IEP’s to 1,429 children (237 3-year-olds, 511 4-year-olds, and 681 5-year-olds), which is only 6.19% of the 2014 population of 3-5-year-olds. 2014 Child Count Report, Pls. Ex. 292, at DL2015 5960; 2015 Dunst Direct ¶ 61.
97. That is a decline of approximately 19% from 2011 to 2014. The District has claimed that these OSEP data show lower service rates than the rates produced to plaintiffs in this litigation because OSEP does not permit OSSE to include in the count children for whom the District lacks certain information, such as a description of the educational environment in which the child receives services. Maisterra Dep. 348:1–9, 349:17–20, 350:1–4, July 2, 2014, Pls.’ Ex. 18. The educational environment is where the child is receiving services. OSSE 2014 Enrollment Audit Manual Supplement: Child Count Guide, Sept. 22, 2014, Pls.’ Ex. 188, at 10; 2015 Dunst Direct, ECF No. ¶ 83. The District would not have this information if the child had not begun receiving services. However, if the child had begun receiving services and the District still lacked that or other required information, that demonstrates a significant problem with the District’s data management. Id.
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98. As described above, the Child Count rate is now 6.19%. See supra para. 96. That is essentially equal to the most recent national average for 3-5-year-olds, which is 6.2%. OSEP Data Display: District of Columbia, Identification of Children with Disabilities, 2015, Pls.’ Ex. 248, at 1; see also 2015 Dunst Direct ¶ 88. It should be much higher given the risk factors in the District. See supra para. 61. It also should be rising, not falling. This means that many children are not receiving needed special education and related services.
E. TIMELY ELIGIBILITY DETERMINATIONS 1. Background
99. 34 C.F.R. § 300.301(c)(1) states that an initial evaluation “[m]ust be conducted within 60 days of receiving parental consent for the evaluation” or within a state-established timeframe. District law provides 120 days after a child is referred to issue a determination as to whether the child is eligible for special education and related services. See infra para. 255.
100. The District’s 120-day timeframe still appears to be the longest period of time in the country. 2015 Dunst Direct ¶ 89. In only five states does the timeframe exceed 60 days. Id.
101. In 2017, the time period may be shortened to 60 days, with an additional 30 days to obtain parental consent for the evaluation. The District recently amended its code as follows:
Beginning July 1, 2017, or upon funding, whichever occurs later, an LEA shall assess or evaluate a student who may have a disability and who may require special education services within 60 days from the date that the student’s parent or guardian provides consent for the evaluation or assessment. The LEA shall make reasonable efforts to obtain parental consent within 30 days from the date the student is referred for an assessment or evaluation. D.C. Code § 38-2561.02(a)(2)(A).
102. Historically, the District has exceeded the 120-day limit for a substantial number of children. See 2015 Dunst Direct ¶¶ 110–14; infra paras. 200–02, 205–07; see also Mem. Op. ¶¶ 33–40, ECF No. 294. Because early intervention is critical in the development of a child with
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early signs of educational disabilities, the District’s persistent delays beyond the 120-day limit presents a critical problem. See supra p. 2.
103. Based upon evidence presented at the 2011 trial, the Court concluded that the District shall “ensure that at least 95 percent of all preschool children referred for Part B services receive a timely eligibility determination.” Mem. Op. ¶ 149, ECF No. 294. Presumably with that benchmark in mind, the District contends that over 97% of preschool-age children receive timely eligibility determinations. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 109. However, calculated appropriately, the number falls substantially. See infra para. 116. Dr. Cupingood’s calculations show that approximately 20 percent of preschool-age children are not receiving timely eligibility determinations. Id.
2. The District Is Not Starting the 120-day Period at the Time That a Child Is Referred by a Non-parent
104. The District does not start the 120-day period at the time that a child is referred by a non-parent—it only starts the clock when a child is referred by a parent. Trial Tr., Compagnucci Test., Nov. 13, 2015, 36:7–37:14. Mr. Compagnucci explained that Early Stages treats a referral from a parent as a referral for special education (and therefore it starts the 120-day clock), but treats a referral from a non-parent as a referral to Early Stages (and therefore it does not start the 120-day clock). See Compagnucci Dep. 111:9–18, June 3, 2014, Pls.’ Ex. 16 (“[Q] What’s the difference between a referral to special education and a referral to your program? [A]: A referral to special education is defined under OSSE policy in DCMR. A referral to Early Stages is defined by us. And what we mean when we say a referral to Early Stages is that somebody who is not the parent has reached out to us to express a concern about a child.”); id. at 116:10–117:12 (“[W]e don’t believe that a pediatrician sending over in whatever form they might send it, that this is a child about whom they have concern is a referral to special education.”). By instituting this policy,
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the District is effectively giving itself even more than the 120 days to complete the eligibility determination when the referral comes from a non-parent, such as a pediatrician.
105. The District explained that the clock should not start at the time of a non-parent referral because parents “were upset that a special ed referral had been initiated without their knowledge or awareness” and “it seemed inappropriate to initiate that referral without the parents’ awareness.” Defs.’ Proposed Findings of Fact and Conclusions of Law 36 n.5; Compagnucci Direct ¶¶ 23, 25; Compagnucci Test., Trial Tr., Nov. 13, 2015, 37:2-11. Of course, the District should keep parents informed and protect parents and children’s privacy, but it is hard to understand how this concern should cause the District to wait to start the clock on the 120-day period. In fact, the District explicitly states, in a guide to families, that the special education process starts upon referral from a pediatrician. DCPS Office of Specialized Instruction, Programs & Resources Guide for Families, 2014-2015, Pls.’ Ex. 78, at DL2015 471 (“The special education process starts once a teacher, parent, psychologist, other school staff member or third party (such as a day care center or physician) submits a referral for a student.”). Moreover, the actual start of the clock would not negatively affect parents. If anything, it helps ensure that the child timely receives services. The only advantage the Court sees of not starting the clock is to give the District additional time for an eligibility determination. As the Court points out, if there is any delay in the responsiveness by the parent, it can be addressed by the parental delay policy. See infra paras. 157–61.
106. The District contends that requiring it to start the 120-day clock upon the date of the initial referral by a non-parent amounts to changing the rules mid-game. Trial Tr., Nov. 16, 2015, 71:1–8. The Court disagrees. This issue was previously litigated in this case. In 2010, the
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District strongly disputed plaintiffs’ allegation that the District was not starting the 120-day clock
at the time of referral by a non-parent:
Just as egregious is Plaintiffs’ complete disregard of voluminous evidence concerning the District’s current performance of its Child Find and FAPE obligations under the IDEA, in order to assert as “undisputed facts” practices that Plaintiffs well know were abandoned long ago. . . . Plaintiffs assert that ‘[t]he percentage of preschool-age children receiving an untimely eligibility determination (i.e., more than 120 days after referral) would be greater if defendants used the date that a primary referral source[] makes a referral as the ‘referral date.’’ . . . Yet, as Plaintiffs are aware, as a matter of current practice ‘[t]he Early Stages Center considers a referral to be the first time any information is received about a child’—that is, the date on which a referral is received from a primary referral source is in fact treated as the referral date.
Defs.’ Mem. in Opp’n to Pls.’ Partial Mot. for Summ. J. 10, ECF No. 180.
107. Moreover, in 2011, in response to a question from the District’s counsel, Dr.
Maisterra testified that the District started the 120-day clock at the time of a written referral by
anyone. Maisterra Dep. 153:9–11, Feb. 28, 2011, Pls.’ Ex. 11 (“[Q] Just to clarify, so a written
referral from anyone starts the 120 days? [A] Yes.”). Therefore, plaintiffs’ argument is not new.
It comports with the District’s representations as to its policy prior to the last trial.
108. Plaintiffs’ argument is also consistent with the Court’s decision after the last trial,
which defined “[d]ate of referral” as “the date on which defendants receive a written or oral request
for assessment of a preschool child including the child’s name and age, the parent’s or guardian’s
name, mailing address or telephone number, and the basis for referral.” Mem. Op. ¶ 149(b), ECF
No. 294. This definition is not restricted to referrals by parents. Among other things, the decision
required the District to attempt “to contact the parent or guardian of a referred child, and, upon
obtaining consent of the parent or guardian, provide feedback to the referral source regarding the
outcome of the referral in a timely manner.” Id. at ¶ 155.
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109. The flaw in the District’s calculation is also not remedied by the District’s policy that Early Stages staff must attempt to contact the parent within 48 hours of a referral by a nonparent. See Compagnucci Dep. 65:15–22, June 2, 2014, Pls.’ Ex. 15. Approximately one third of the time, the District fails to comply with that policy. 2015 Cupingood Direct ¶ 76. The District explained its apparent failure to comply with that policy by stating that it may be due to failure to document properly attempts at communication or “variation in staff performance in reaching out to families in a timely manner.” E-mail from District’s Counsel to Plaintiffs’ Counsel, May 27, 2014, Pls.’ Ex. 136, attachment p. 2.
110. The flaw in the District’s calculation is also not remedied by its contention that screenings are completed within 7 days of a referral 85% of the time. Compagnucci Direct ¶ 24. Regardless of the dates of screenings, as described below, see infra para. 115, the District is failing to provide timely eligibility determinations to anywhere near to 95% of children and there are substantial delays in even scheduling evaluations.
3. The District Is Failing to Provide Timely Eligibility Determination to Large Numbers of Children
111. The District does not keep its data in a format that allows for easy correction of the errors described above. Some of the data are in the Early Stages database, some are in the SEDS database, and it is not always possible to reconcile the databases. See 2015 Cupingood Direct ¶¶ 31–32. However, as described below, plaintiffs’ statistical expert, Dr. Cupingood, presented reliable evidence to show that the timeliness of the District’s eligibility determinations falls substantially from the 97% that the District claims. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 109 (arguing that the District achieved 97.06% from December 1, 2012 to November 30, 2013); see also infra paras. 112–16 (detailing the analysis that underpins the District’s more accurate rate of approximately 80%). When the 120-day clock begins at the time
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of referral by a parent or non-parent, and other appropriate corrections are made to the District’s data, the percentage of timely eligibility determinations falls substantially, to a rate closer to 80%.4
112. Dr. Cupingood started with the children who the District reported were referred for special education and related services. SEDS tracks the date of referral by a parent, not the date of referral by a non-parent. E-mail from District’s Counsel to Plaintiffs’ Counsel, Apr. 29, 2014, Pls.’ Ex. 133, at 5. The date of referral by a non-parent is tracked in the Early Stages database. Id. at 4. In order to determine which children were referred by a non-parent prior to the parental referral, Dr. Cupingood had to match the children in the two databases. 2015 Cupingood Direct ¶¶ 31, 50. However, the version of the Early Stages database that the District produced lacked identification numbers for many children which were necessary to match them. Dr. Cupingood excluded those children who could not be matched. See id. at ¶ 50.
113. Dr. Cupingood also excluded the children who were transitioning from Part C services, for whom the relevant deadline is the child’s third birthday. Id. at ¶¶ 32, 39, 52; see infra para. 120.
114. Dr. Cupingood also excluded the children who received a parent consent denial or referral discontinuation prior to the 120-day deadline, and therefore did not receive a timely or untimely determination. 2015 Cupingood Direct ¶ 55. The District also subsequently revised its calculation methods to do the same. OSSE IDEA Part B Special Conditions Progress Report #2, Nov. 3, 2014, revised Nov. 26, 2014, Pls.’ Ex. 296, at 4.
4 Dr. Cupingood’s calculation relates to the period from December 1, 2012, to November 30, 2013. 2015 Cupingood Direct ¶ 38. The parties agreed that such statistics should essentially be treated as current for purposes of the Court’s decision. Parties’ Data Agreement, Pls.’ Ex. 294.
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115. For the remaining children, Dr. Cupingood compared the date of the initial referral from the parent or non-parent, with the eligibility date, to determine the percentage of children who received an eligibility determination within 120 days. 2015 Cupingood Direct ¶¶ 56–61. However, where the information in the Early Stages database suggested that the child’s case was closed and then the child was referred again, Dr. Cupingood conservatively used the later referral date in SEDS as the measure for the start of the 120-day period. Id. at ¶ 56. Where the information in the Early Stages database identified a date of first case opening after the referral date in SEDS (which referral date the District uses), Dr. Cupingood used the referral date in SEDS. Id. at ¶ 57.
116. In conducting this analysis, Dr. Cupingood found that approximately 20% of children did not receive a timely eligibility determination within the 120-day timeline. Id. at ¶ 61. That is well above the District’s 3% untimely calculation and four times as many untimely eligibility determinations as are permitted under the Court’s prior decision. See supra para. 103.
117. Moreover, during the 2011 trial, Dr. Beers testified that the District was working toward reducing the time for eligibility determinations to 60 days, rather than 120 days. 2011 Beers Direct ¶ 47, Pls.’ Ex. 1 (“The 60 day period is a standard that is higher than what is required by OSSE, but we determined that we have the desire to have that more aggressive timeline as our internal standard.”); Beers Dep. 48:22–49:11, Mar. 1, 2011, Pls.’ Ex. 12 (“Young children need to get into services as efficiently and effectively as possible, so the shorter time period that we can utilize, the better, and so I’m having staff feel as though there is some pressure to move forward effectively with families is important for us to have them reach towards.”). The Early Stages’ Strategic Plan in 2009 called for an “increase [in] the percentage of evaluations completed within the 60-day period to 95% by September 2012.” Pls.’ Ex. 66, at
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DL2 1967. Dr. Maisterra also testified in 2011 that 120 days was too long for a child to wait for an eligibility determination. See Maisterra Dep. 158:7–15, Feb. 28, 2011, Pls.’ Ex. 11 (“Q. Does OSSE believe that 120 days is an appropriate amount of time for a preschool-age-child to wait for an eligibility determination? A. I would say no. Q. Why not? A. I think that, generally speaking, we feel that 120 days is a long time and, as I said earlier and we’ve discussed before, we’re looking at that as an area of review and consideration.”).
118. The District has revised its code to reduce, as of July 1, 2017 or upon funding, whichever occurs later, the time period in which an LEA must complete an initial evaluation to 60 days from parental consent. See supra para. 101. The District’s Chief Financial Officer determined that Early Stages would need 22 new staff members to comply with that new timeframe once it takes effect. Office of the Chief Financial Officer, Fiscal Impact Statement— Enhanced Special Education Services Act of 2014, Sept. 15, 2014, Pls.’ Ex. 272, at 5.
119. As described above, the District is not meeting the 120-day deadline for many children. See supra para. 165. Since 60 days is the timeline the District is striving for, see supra para. 117, and the timeline that 45 states already employ, see Dunst Direct ¶ 89, the District should at least be able to reliably offer eligibility determinations in twice that time. But it is failing to do so.
F. TRANSITION FROM PART C TO PART B SERVICES 120. The District is required to provide children who receive Part C services with a “smooth and effective” transition to Part B services by that child’s third birthday. See infra paras. 265–66. A transition is 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 the specific location for services by the child’s third birthday; (3) there is no
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disruption in services between Part C and Part B services; and (4) Part B personnel are involved in the transition process. See Mem. Op. 25, ECF No. 389; 2015 Dunst Direct ¶ 18.
121. Historically, the District has failed to provide a smooth and effective transition to large numbers of children. See 2015 Dunst Direct ¶¶ 124–28; Mem. Op. 12–13, ECF No. 444; Mem. Op. ¶¶ 41–45, ECF No. 294; infra paras. 208–15.
122. Based upon evidence presented at the 2011 trial, the Court concluded that the District shall “ensure that at least 95 percent of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays.” Mem. Op. ¶ 150, ECF No. 294. The District claims that it is exceeding that benchmark. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 119 (presenting a rate of 96% in 2012-2013 and 98.71% in 20132014). However, the District’s statistics are inaccurate, in large part because it is not actually assessing when children start receiving their special education and related services. See infra paras. 123–36. When corrected, the data show that almost 30 percent of children are not receiving smooth and effective transitions. See infra para. 140.
1. The District Is Incorrectly Counting Children as Receiving a Smooth and Effective Transition Even If They Do Not Receive Services by Their Third Birthday and They Therefore Experience a Disruption in Services a. All services must commence by the child’s third birthday
123. The purpose of the smooth and effective transition requirement is to ensure that children do not experience a disruption in services. 2015 Dunst Direct ¶ 17; see also Mem. Op. ¶ 162, ECF No. 294 (“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.”).
124. Accordingly, services must commence by the child’s third birthday. See 20 U.S.C. § 1412(a)(9) (“By the third birthday of such a [transitioning] child, an individualized
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education program or . . . an individualized family service plan, has been developed and is being implemented for the child.”); 34 C.F.R. § 300.101(b) (“(1) Each State must ensure that— (i) The obligation to make FAPE available to each eligible child residing in the State begins no later than the child’s third birthday; and (ii) An IEP or an IFSP is in effect for the child by that date, in accordance with § 300.323(b).”); 2015 Dunst Direct ¶ 18; see also Mem. Op. 39, ECF No. 444 (“All services must commence for a transition to be smooth and effective.” (emphasis in original)).
125. The District’s representatives have testified to this requirement, and it is pervasive in the District’s documents. Maisterra Dep. 56:20-57:1, June 2, 2014, Pls.’ Ex. 14 (“Q. Does that mean that services are supposed to begin by the third birthday? A. Yes, for children transitioning from Part C to Part B.”); id. at 170:10–16 (“Q. If the parent hasn’t agreed to a delay in implementation of the IEP, then the services have to be provided as early as the third birthday; right? A. Right. Q. I should have said that they have to be provided by the third birthday; right? A. Yes, by or on. . . .”); Maisterra Dep. 26:19–27:3, Feb. 28, 2011, Pls.’ Ex. 11 (“Q. And that child would be treated as a transition child, not as a Child Find child for that LEA? A. Yes. Q. So the timeline for ensuring that services are in place by age three would apply to that child? A. Yes.”); Compagnucci Dep. 77:4–12, June 2, 2014, Pls.’ Ex. 15 (“A. The child has a right to services implemented on their third birthday. . . . Q. You and I will agree that that’s true. Certainly we will, as the plaintiffs, will agree that that is true. [District’s counsel]: The defendants will agree to that too.”); OSSE Early Child Transition Policy, Mar. 2, 2010, Pls.’ Ex. 42, at 7 (“Implementation of the IEP. The obligation to make a free appropriate public education (FAPE) available to each eligible child begins no later than the child’s third birthday; and an IEP must be in effect for the child by that date.”); id. at 8–9 (“Each LEA must
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collect and report to the OSSE accurate, reliable and timely data [including] . . . [n]umber of days after age three that services begin and/or the reasons for delay, including parental refusal.”); OSSE Early Childhood Transition Guidelines, Feb. 2011, Pls.’ Ex. 46, at DL2014 109 (“If your child is eligible for services, the LEA is responsible for developing an IEP (Individualized Education Program) with your input by your child’s 3rd birthday and for implementing services upon enrollment in school at age three.”); id. at DL2014 120 (“If eligible, services shall begin on the child’s 3rd birthday.”); OSSE Division of Specialized Education, Office of Quality Assurance & Monitoring, Glossary, Pls.’ Ex. 51, at 1 (“Early Childhood Transition: All children exiting Part C who received timely transition planning to support the child’s transition to preschool and other appropriate community and receive services by their third birthday.”); Early Stages Transition Handout, Oct. 19, 2012 Pls.’ Ex. 74 (describing what must occur “[b]y the child’s 3rd birthday: . . . If your child is eligible for special education and you choose DCPS, your child must be receiving DCPS services”); Early Stages Transition Training, Pls.’ Ex. 59, at DL2014 1492 (“Eligibility and Location of Service offer needed prior to 3rd birthday. Child has legal right to get services on their 3rd birthday.”).
b. The District’s practice is to ensure that a child receives an IEP and location assignment by the third birthday
126. Despite these representations, the District defines transition, for the purposes of its statistical reporting, as merely having an IEP and a classroom assignment by the third birthday, not as having services begin by the third birthday. Maisterra Dep. 173:18–21, 182:9– 19, June 2, 2014, Pls.’ Ex. 14 (“Q. In those instances, however, where it doesn’t work quite like that, and that although by the third birthday there’s an assignment to a school and a particular kind of services, but there’s some delay in the services, those children are still counted as having
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been timely by their third birthday; right? . . . A. They are timely based on the current calculation, correct.”); Proddutur Dep. 197:7–16, July 2, 2014, Pls.’ Ex. 18. Therefore, in purporting to provide statistics regarding “smooth and effective transitions,” the District does not consider whether there is a disruption in services. Id. at 232:2–14. Therefore, it is not surprising that, as described below, many children experience disruptions in services.
c. The District does not track whether services begin by the child’s third birthday
127. OSSE’s Early Childhood Transition Policy requires that “[e]ach LEA . . . collect and report to the OSSE accurate, reliable and timely data [including] . . . [the] [n]umber of days after age three that services begin and/or the reasons for delay, including parental refusal.” Pls.’ Ex. 42, at 8–9. Despite this policy, OSSE does not require LEAs to maintain records of when special education services (as opposed to related services) begin, and therefore cannot and does not report delays in the start of those special education services. Johnson Dep. 17:5– 20:6, 22:4–17, July 2, 2014, Pls.’ Ex. 18. Individual SEDS files include quarterly progress reports may show that special education services were provided over a particular quarter, but these reports do not reliably state when those services began. See, e.g., Pls.’ Ex. 112, at 1. Also, individual SEDS files are supposed to include records (service trackers/reports) related to days when related services are provided, but those records do not compare the documented sessions to the date on which the services were supposed to begin and therefore do not track delays in the start of services or the reasons for such delays. See, e.g., Pls.’ Ex. 303 (providing examples of service reports); Report of the Monitor for the 2011-2012 School Year, Dec. 10, 2012, Pls.’ Ex. 264, at 46˗47 (“The Service Trackers did not seem to be providing a good system for monitoring delivery of services or missed services. The Service Trackers seem intended primarily as a way to document delivery of services for billing purposes. The Trackers do not
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state the frequency or details of the service required in the IEP. . . . Time periods covered for the trackers vary . . . , and there are many with overlapping dates, gaps, etc.”).
d. The District argues that only special education services and not related services need to begin by the child’s third birthday
128. The District moved for reconsideration of the Court’s decision that “All services must commence for a transition to be smooth and effective.” Defs.’ Mot. for Recons. 1, ECF No. 468 (citing Mem. Op. 39, ECF No. 444) (emphasis in original). In that motion, the District argues that related services do not need to be provided by the third birthday, but rather, “as soon as possible” after the third birthday. Mem. of Points and Authorities in Supp. of Defs.’ Mot. for Recons. 7˗8, ECF No. 468; Reply in Further Supp. of Defs.’ Mot. for Recons. 4˗5. ECF No. 473; id. at 3 n.1 (stating that District’s request is “appropriately viewed as one for providing related services to transitioning children with appropriate flexibility to best serve the child’s individual needs”). As stated, the Court granted the District’s motion and ruled that “the appropriate standard for implementation of an IEP shall be determined post˗trial.” Order 1, ECF No. 480. Plaintiffs’ opposition to the District’s motion [470] addresses the flaws in the District’s argument. Indeed, the “as soon as possible” language comes from a regulation which is inapplicable in this context because it is subject to the more specific requirement that the IEP be implemented by the third birthday. See Opp’n to Defs.’ Mot. for Recons. 10–12, ECF No. 470; Reply in Further Supp. of Defs.’ Mot. for Recons. 4, ECF No. 473.
129. No evidence was presented at trial that causes this Court to deviate from its conclusion that all services must begin by the third birthday of a child transitioning from Part C to Part B services.
130. The District suggested at trial and argued in post-trial filings that if an IEP provides for a related service to occur once a month, the service can occur any time over that month, and
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therefore the related service need not start by the child’s third birthday. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 123 (arguing that a definition of “smooth and effective” that requires all services to be delivered by the child’s third birthday is “unworkable and thus inappropriate”); Trial Tr., Nov. 12, 2015, 99:5–12 (District’s counsel: “In a number of those cases the child’s IEP date—let’s say it takes effect on May 1st, and it contains an educational piece and then a related service. The related service is provided once—it’s provided, according to the IEP, it’s supposed to happen once a month. Does it violate the IDEA if that related service occurs on the 16th of that month?”); Trial Tr., Nov. 16, 2015, 74:17–20 (District’s counsel: “[P]laintiffs’ arbitrary rules . . . exist almost exclusively around when a related service is to be provided once a month . . . .”). That argument fails for numerous reasons, as detailed below.
131. First, broadly speaking, the District’s position amounts to an argument that special education services, but not related services, must start by the child’s third birthday. However, as already mentioned, see supra para. 125, there are numerous District documents that state that services must begin by the third birthday, and none of them add a caveat to distinguish special education services from related services. The District contends that “[t]his argument is a red herring [because] [t]he quoted materials and deposition testimony do not distinguish between educational and related services under IDEA . . . and represent nothing more than generalized statements regarding Part C to Part B transition.” Reply in Further Supp. of Defs.’ Mot. for Recons. 5, ECF No. 473. Contrary to this argument, Dr. Freund has testified that implementation of an IEP means “[t]he child was placed in whatever related, if any, services were being provided.” Freund Dep. 142:7–18, Oct. 1, 2014, Pls.’ Ex. 22. Moreover, there is nothing in the law that says that special education services must be implemented by the third birthday, but that related services do not. The IEP must be implemented by the third birthday and related services
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are part of the IEP. When the District tells parents that “If eligible, services shall begin on the child’s 3rd birthday,” see OSSE Early Childhood Transition Guidelines, Pls.’ Ex. 46, at DL2014 109, 120, there is no reason that a parent should interpret the District’s statement to apply to special education services, but not the related services necessary to benefit from those educational services. Indeed, related services are services “as may be required to assist a child with a disability to benefit from special education.” 20 U.S.C. § 1401(26)(A); see also Family Care Manual, Pls.’ Ex. 72, at DL2014 194 (stating Part B “[o]nly provides nursing or medical care services [i.e., related services] that are considered necessary for the child to access educational programs”).
132. Second, the District looks to the “present continuous tense” of 20 U.S.C. § 1412(a)(0) and 34 C.F.R. § 300.124(b), which state that a transition from Part C to Part B is smooth and effective when, by the child’s third birthday, an IEP “has been developed and is being implemented for the child.” Defs.’ Reply in Further Supp. of Defs.’ Mot. for Recons. 3. Defendants interpret this language to suggest that all services do not have to be provided by a child’s third birthday, but rather, that related services are “made available” by a child’s third birthday. Id. In the Court’s opinion, however, an IEP is only being implemented at the time that the child is receiving the services prescribed in the IEP. See, e.g., 2015 Dunst Direct ¶¶ 64, 121– 23; see also Pls.’ Opp’n to Defs.’ Mot. for Recons. 7–9, ECF No. 470 (citing support). Indeed, the point of the smooth and effective transition requirement is to ensure that children do not experience a disruption in service. Id. In sum, the District has drawn a line between educational services and related services which is not supported by the language or purpose of the statute.
133. Third, the District argues that because a child’s birthday may fall on a weekend or summer holiday, when services are not available, or because certain events may occur that
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prevent a child from receiving services on the third birthday (for example, if the child is sick), the District need not provide all services by the third birthday. Reply in Further Supp. of Defs.’ Mot. for Recons. 3–4, ECF No. 473. However, the potential for those events to occur does not mean that the District is relieved of its statutory obligations. When a child’s birthday falls on a weekend or summer holiday, assuming that the child does not qualify for summer services, see infra para. 153, then the services should be provided on the next school day—it is that simple. Adopting the District’s proposed rule would in practice mean that there is no actual due date.
134. It bears noting that OSSE’s reporting practices regarding Part C services are at odds with its argument that it need not provide all Part B services by the child’s third birthday or that it is impractical to do so. The OSSE Part C program reports to OSEP that services have been timely provided to a child only when all services have been provided by the Part C deadline. Trial Tr., DeHaan Test., Nov. 13, 2015, 18:9–19:9.
135. Fourth, the District essentially argues that compliance must be assessed on a childby-child basis. See Defs.’ Reply in Further Supp. of Defs.’ Mot. for Recons. 6, ECF No. 473, (“[I]t is also important to appreciate that the decision of how to implement an IEP is necessarily child-specific.”), id. at 7 (“The IDEA is a statute that rejects bright lines and cookie cutter approaches.”). This decision relates to the District’s obligation to have in effect policies, procedures, and practices to ensure that, for transitioning children, the IEP is being implemented and a FAPE is available by the child’s third birthday. The impact of any particular delay on any particular child is not addressed herein.
136. Regardless, there is little difference between the parties in terms of the evidence on this issue. In assessing the District’s performance, plaintiffs conservatively assessed whether children received their services within 14 days of their third birthday or within 14 days of the start
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date for services in the IEP if the child’s birthday was over the summer. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 41–56, ECF No. 514-2. Similarly, Dr. Maisterra testified that 14 days is a reasonable period of time for related services to begin and the District itself assessed whether related services began within 14 days in its own audits. See Maisterra Dep. 345:12–15, July 2, 2015, Pls.’ Ex. 18.
2. The District Is Failing to Provide Smooth and Effective Transitions to Large Numbers of Children
137. Plaintiffs reviewed 100 sample children identified by the District as receiving a smooth and effective transition by their third birthday. First, three children did not even receive notices of their location of services or confirmation that their IEP could be implemented at the location preferred by their parent by their third birthdays. Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 39–41, ECF No. 514-2, ECF No. 514-2. This is explicitly contrary to the District’s own policy. See Early Stages Evaluation Procedures: Transition, Early Stages Manual, Pls.’ Ex. 63, at DL2015 2073 (“[I]t is essential that a Location of Service (LOS) letter is offered, dated, shared with the parent and uploaded in SEDS all before the child’s third birthday. If this documentation is missing, OSSE will assume that the standard was not met.”).
138. Second, 21 children in the sample did not begin receiving all special education and related services within 14 days of the start date prescribed in their IEPs. Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 41–56, ECF No. 514-2.5
5 If a child did not timely receive services because the child was not promptly enrolled by the parent at the offered site, and the District had otherwise made reasonable efforts to ensure a smooth and effective transition, the District should not be held responsible for that delay. In preparing these data, plaintiffs did not count a transition as untimely where the delay in the commencement of services was attributable to a delay in the child’s enrollment in the school where services were to be provided.
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139. Third, the District applies the same parental delay standard with regard to transitions as it does with regard to other eligibility determinations. Proddutur Dep. 225:20– 226:3, July 2, 2014, Pls.’ Ex. 18. Therefore, the District is over-counting parental delay with transitions just as it is with other eligibility determinations. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 57–59, ECF No. 514-2.
140. Based on this information, Dr. Cupingood determined that almost 30% of transitioning children did not receive smooth and effective transitions. 2015 Cupingood Direct ¶ 73.
141. As described below, see infra paras. 153–56, the delays are even worse for children who are scheduled to transition over the annual summer break because they are not receiving appropriate consideration for summer services.
142. The District also produces data to OSEP related to smooth and effective transitions. The data are prepared in nearly the same way as the data produced for this case. Proddutur Dep. 269:5–270:4, July 2, 2014, Pls.’ Ex. 18. Accordingly, the data produced to OSEP are defective for all of the reasons described above.
G. THE DISTRICT’S POLICIES, PROCEDURES, AND PRACTICES ARE FLAWED 1. Generally
143. As described above, the District’s policies, procedures, and practices have failed to ensure that children are being identified and provided with a FAPE and that they timely receive eligibility determinations and smooth and effective transitions. The District has used flawed methods to calculate its statistics that purport to show otherwise.
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144. Dr. Dunst testified based on the failures he identified, “the District does not have
an adequate Child Find and related practices program to ensure that eligible children are provided
[with a] FAPE.” 2015 Dunst Direct ¶ 165. He explained: “If it were running a program as
required, available and accurate data would reflect such progress.” Id.; see also Trial Tr., Dunst
Test., Nov. 12, 2015, 92:7–13.
145. The District contends that plaintiffs’ statistics are deficient because they are not
accompanied by evidence of specific deficient policies and procedures. Trial Tr., Nov. 12, 2015,
20:4–24. However, many deficient policies and procedures are described above and below.
146. Plaintiffs concede that their evidence is less thorough than it was at prior stages in
this litigation. Although it has made progress, the District is nevertheless required to have
policies, procedures, and practices to ensure that all children who need special education and
related services are identified and receive special education and related services, timely eligibility
determinations, and smooth and effective transitions. The District’s failure to provide these services to hundreds of children represents serious systemic problems. The District needs to
review its policies, procedures, and practices, in general, and those described herein in particular,
in order to make the improvements necessary to comply with federal and District law.
2. The District’s Policy, Procedures, and Practices Regarding Presumptive Eligibility Are Flawed
147. Following the 2011 trial and the parties’ subsequent briefing and agreement, the
Court ordered the following regarding presumptive eligibility:
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
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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.
Order 1–2, ECF No. 323 (emphasis added).
148. Dr. Beers explained that presumptive eligibility “is more family-friendly because it reduces the number of children who require assessments . . . .” 2011 Beers Direct ¶ 8, Pls.’ Ex. 1. It also reduces delay and prevents the disruption in services. 2015 Dunst Direct ¶ 147.
149. Despite the presumptive eligibility requirement and the District’s assertion that it “treats transferring children as ‘presumptively eligible,’” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 79, the District reported very high and rising percentages of children transitioning from Part C to Part B services who received additional assessments: 73.3% (Dec. 1, 2010, to Nov. 30, 2011); 82.4% (Dec. 1, 2011, to Nov. 30, 2012); 87.5% (Dec. 1, 2012, to Feb. 28, 2013); 95.6% (Mar. 1, 2013, to May 31, 2013); 92.7% (June 1, 2013, to Aug. 31, 2013); and 94.4% (Sept. 1, 2013, to Nov. 30, 2013). Defs.’ Objections and Responses to Pls.’ First PostTrial Requests for Produc., Pls.’ Ex. 31, at 21–22.
150. These high levels of assessments do not comport with the presumptive eligibility requirement. 2015 Dunst Direct ¶ 150. Moreover, Part C has narrower eligibility criteria than Part B, see DeHaan Direct ¶ 6, further suggesting that such high numbers of additional assessments should not be necessary. 2015 Dunst Direct ¶ 150. However, this data is entirely consistent with the Early Stages Policy Manual as of October 2010, which states that, upon transition, “Part C children will have updated evaluations in the areas currently being addressed on their IFSP.” Pls.’ Ex. 69, at DL4 2110. Indeed, despite the Court’s order regarding presumptive
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eligibility, which issued in 2012 following the parties’ agreement, see Mem. Op. 5–6, ECF No. 322, Mr. Compagnucci explained that the District’s presumptive eligibility policy has not changed since 2010. Compagnucci Dep. 131:14–17, Aug. 12, 2014, Pls.’ Ex. 21.
151. Dr. Dunst explained that research findings and his experiences demonstrate that such a large number of additional evaluations is not necessary and would not be required if the District were appropriately treating Part C children as presumptively eligible for Part B services. 2015 Dunst Direct ¶ 150. He also explained that “[t]hese additional evaluations are most likely resulting in additional delay and burden on both the children and their families, and the District is also likely using resources to conduct unnecessary evaluations in cases where children would obviously be eligible for Part B preschool special education.” Id. at 151.
152. Mr. Compagnucci testified that he did not know if there are any children whose disabilities are so obviously unchanged since the initial Part C evaluation that it would not be necessary to do any further assessments. Compagnucci Dep. 128:14–129:2, Aug. 12, 2014, Pls.’ Ex. 21. Dr. Dunst stated that, based on over 40 years experience in this field, he is confident numerous children who would fall into that category. 2015 Dunst Direct ¶ 152.
3. The District’s Policy, Procedures, and Practices Regarding Extended School Year Services Are Flawed
153. The District’s policy requires that every child with an IEP be evaluated for Extended School Year (“ESY”) services (services offered over the summer period) in order to provide a child with a FAPE. 2015 Maisterra Direct ¶ 8 (stating that Early Childhood Transition Policy “mandate[es] evaluation for entitlement to [ESY] services for those children whose birthdays fall during summer months”); OSSE Extended School Year Service Policy, Mar. 10, 2011, Pls.’ Ex. 47, at 1–2. During that ESY evaluation, “IEP Teams must use student data to quantify, to the extent possible, the likely impact of a break in service on educational benefit,
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through a rigorous discussion of critical skill regression and recoupment.” OSSE Extended School Year Service Policy, Pls.’ Ex. 47, at 3. In doing so, “LEAs should utilize any relevant current data for students for whom the LEAs cannot obtain three months of progress monitoring data from the current school year.” Id. at 3 n.6.
154. OSSE’s Part B Student Compliance Monitoring Tool, attached to the Special Education Monitoring and Compliance Manual, requires that each file include evidence that the child’s eligibility for ESY was properly evaluated and that:
If no evidence can be provided, [t]he IEP Team must convene or amend the IEP to complete the ESY criteria worksheet and determine the appropriate amount of compensatory education if the student requires compensatory education. OSSE must confirm that the LEA is correctly implementing the specific regulatory requirement (achieved 100% compliance) based on a review of updated data. August 2014, Pls.’ Ex. 51, attachment p. 11.
155. In direct contradiction to its policies requiring evaluation using existing data, the District has denied ESY services to the majority of transition children whose birthdays are in the late spring or summer, either with no explanation at all or stating that there is insufficient data upon which to make a determination. Plaintiffs’ Exhibit 111 includes the ESY Services Eligibility Worksheets for children in the 100 child transition sample who received an ESY eligibility determination between April and August 2013 (the period just prior to and during the summer). Of those 35 worksheets, there are 9 children for whom the worksheet is blank, except for marking the child as ineligible for ESY services, see Pls.’ Ex. 111, at 1, 2, 6, 22, 28, 29, 32, 34, 37; 10 children for whom the District concluded that there was not sufficient information to make a determination as to the child’s ESY eligibility and, therefore, denied ESY services, see id. at 3, 7, 11, 12, 14, 16, 21, 26, 27, 36; and 11 children for whom it is not clear whether the District concluded that there was not sufficient data to make a determination or that the LEA reviewed
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the data and concluded, without reference to data, that the child did not qualify for ESY services, see id. at 5, 8, 9, 17, 20, 23, 24, 30, 33, 35, 38. For these 11 children, it appears that the LEA is just using different phrasing to conclude that there is not enough data to make an ESY determination. See, e.g., Pls.’ Ex. 5, at 5 (“Evaluation team does not have enough data to qualify student.”). That totals 30 out of 35 ESY worksheets (over 80%) that demonstrate failure to evaluate properly a child for ESY services and failure to comport with the District’s policies.
156. By projecting services to begin in the fall for children transitioning from Part C to Part B services whose third birthdays are in the late spring or summer and simultaneously failing to evaluate their eligibility adequately for ESY services, the District is causing those children to experience a substantial disruption in services.
4. The District’s Policy, Procedures, and Practices Regarding Parental Delay Are Flawed
157. The District’s parental delay policies, procedures, and practices are flawed. Of course, the District should not be blamed for an untimely determination if the parent does not reasonably participate in the eligibility determination process. See 34 C.F.R. § 300.301(d)(1) (exception to the timeliness requirement if the “parent of a child repeatedly fails or refuses to produce the child for the evaluation”).
158. However, under its current policy, if District attempts to contact a parent three times, using more than one form of communication, at any time during the 120-day period, and the eligibility determination is issued after the 120 days, the District concludes that there was parental delay and omits this child’s referral from its statistics. See Proddutur Dep. 161:11– 162:12, July 2, 2014, Pls.’ Ex. 18; OSSE FFY 2012-Initial Evaluation Timeliness-Business Rules, Pls.’ Ex. 34, at DL2014 2262.
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159. The District admits that it does not even consider whether it is fair to blame the parent for the delay. Proddutur Dep. 176:17–21, July 2, 2014, Pls.’ Ex. 18 ( “[Q]: Did you ever consider whether it’s fair to blame the parent for delay? [A]: No because we do not make judgment calls here. We go by the policy, and we try to make concrete measurement.”)
160. Moreover, Plaintiffs identified numerous children for whom the District stated the delay should be attributed to the parent but for whom most of the delay was attributable to the District or the determination was otherwise unreasonable. See Pls.’ Post-Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children 21–38, ECF No. 514-2.
161. The District should revise its parental delay policy so that it uses common sense and fairness to determine when any delay should be attributed to the LEA and when any delay should be attributed to the parent. 2015 Dunst Direct ¶ 103. For example, the parental delay rules should not allow attempts at parent contact that are clearly ineffective, such as repeat calls to a disconnected telephone number, to count towards meeting the minimum number of attempts at contact. Id. The revised rules should account for both delays by the LEA in attempting to contact the parent and in parental responsiveness, all of which should be documented. Id.
H. EXPERTS’ OPINIONS 162. Both parties’ special education experts agree that the District has shown substantial improvement. 2015 Dunst Direct ¶ 21; see generally 2015 Freund Direct. 163. Nonetheless, Dr. Dunst has continued to express substantial concerns regarding the District’s program. 2015 Dunst Direct ¶ 21. He described the District’s failures to use appropriate criteria for determining compliance with the benchmarks and concern over the resulting statistics. Id. at ¶¶ 22–140. He expressed concern over the District’s policies regarding
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parental delay, ESY services, and presumptive eligibility. Id. at ¶¶ 100–03, 141–53. He also
expressed concern over the District’s staff and the quality of the data in the District’s databases.
Id. at ¶¶ 154–58. He explained that:
As a result of the failure to comply with these numerical requirements, despite years of attempts to correct its noncompliance, and because of all the discrepancies in how enrollment, eligibility determinations, smooth and effective transitions, ESY, presumptive eligibility, and other Child Find requirements are defined and measured, the continued history of unreliable data collection and calculation of the indicators for OSEP and the Court-ordered benchmarks, and the lack of a complete understanding of the meaning of the IDEA Child Find requirements and how to accurately measure the OSEP indicators, there is a need for oversight and monitoring to ensure that these failures are remedied.
Id. at ¶ 164.
164. The District’s expert, Dr. Freund, is much more positive about the District’s
program. However, as discussed, she did not analyze the District’s data that were reported in this
case. Freund Dep. 87:13–15, Oct. 1, 2014, Pls.’ Ex. 22; Trial Tr., Freund Test., Nov. 16, 2015,
49:7–50:3. The District did not provide Dr. Freund with the underlying data that plaintiffs’
experts analyzed, and, therefore, she did not address the analyses performed by plaintiffs’ experts
or opine regarding the accuracy of the District’s rates of identification, timely evaluations, timely
eligibility determinations, or smooth and effective transitions, or the methods used in those
calculations. Freund Dep. 198:13–199:10, 329:3–14, Oct. 1, 2014, Pls.’ Ex. 22. Dr. Freund based
her opinion on the percentages and other information that the District presented to her and on her
conversations with District representatives. See Trial Tr., Nov. 16, 2015, 35:7–36:16, 49:7–50:3;
Freund Dep. 84:10-14, Oct. 1, 2014, Pls.’ Ex. 22.
165. In 2009, in describing what needs to be done to improve the District’s program,
Dr. Freund wrote: “It would be essential that the expected documentation of data and tracking of
children and outcomes be in place to determine the new system’s capability to effectively find,
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refer, identify, and place children from birth to age 5 who are eligible for Child Find services.” 2009 Freund Report, Pls.’ Ex. 28, at 13. When asked about that statement at her deposition, she said: “I’m suggesting that there be on-the-ground data. OSEP requires, for the most part, summative data. I’m suggesting that there be data with regard to not just what has to be reported to OSEP, but what the work is and how the work is being done in the District for children who are identified or referral [sic].” Freund Dep. 278:12–18, Nov. 23, 2009, Pls.’ Ex. 9. The Court agrees. Review of that on-the-ground data shows that the District has inadequate policies, procedures, or practices.
I. THE DISTRICT HAS BEEN OR SHOULD HAVE BEEN AWARE OF ITS FAILURE TO COMPLY WITH ITS LEGAL OBLIGATIONS 1. OSEP Concluded that OSSE Fails to Comply with the IDEA
166. Since at least 1997, OSEP determined that the District failed to comply with requirements of Part B of the IDEA and has worked with it to address its ongoing noncompliance. See OSEP Notice of Written Findings and Decision and Compliance Agreement, 63 Fed. Reg. 41370, 41371, Aug. 3, 1998, Pls.’ Ex. 201. As described below, prior to 2011, OSEP took substantial action toward the District to address its noncompliance with regard to timely evaluations and smooth and effective transitions. See infra paras. 183–90; see also Mem. Op. ¶¶ 52–59, ECF No. 294.
167. From 2011 through 2014, OSEP also determined that the District “needs intervention” in implementing IDEA requirements and imposed special conditions due to the District’s lack of compliance with the requirement to provide timely initial evaluations to 3-21year-olds. Letters from OSEP to OSSE, Pls.’ Ex. 226, at 1–4; Pls.’ Ex. 231, at 1, 3–5; Pls.’ Ex. 232 at 1, 4–6; Pls.’ Ex. 239, at 1, 5–7.
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168. In 2011, OSEP’s needs intervention determination was also due to noncompliance with the requirement to provide smooth and effective transitions. Pls.’ Ex. 226, at 1–2; see also infra para. 190. In 2014, OSEP informed the District that it had satisfied its special conditions regarding those transitions. Letter from OSEP to OSSE, July 1, 2014, Pls.’ Ex. 240, at 2. However, the transition data upon which OSEP relied to reach that conclusion suffer from the data problems described above, see supra paras. 123–27, and therefore should not be relied upon. See Proddutur Dep. 269:5–270:4, July 2, 2014, Pls.’ Ex. 18 (stating that the calculation of data for OSEP and for this case are nearly identical). Moreover, OSEP does not review the District’s files in the way that plaintiffs have done for the purposes of this litigation. Trial Tr., Dunst Test., Nov. 13, 2015, 50:23–51:1.
169. On June 30, 2015, OSEP informed OSSE that the District “needs intervention in implementing the requirements of Part B of the IDEA” for the “ninth consecutive year” (the longest period in the country), and imposed special conditions on the District’s FFY 2015 IDEA grant awards due to the District’s lack of compliance with timely initial evaluations for children ages 3 to 21. Letter from OSEP to OSSE, June 30, 2015, Pls.’ Ex. 243, at 1, 4–8; Department of Education, 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Act, 2014, Dec. 2014, Pls.’ Ex. 182, at 186 (stating that in 2011, the District was the only jurisdiction that needed intervention for three or more years). OSEP stated that the District “did not meet the Special Condition imposed on its FFY 2014 IDEA Part B grant award to ensure timely initial evaluations and reevaluations,” an issue that “was initially identified in the 19982001 Compliance Agreement between D.C. and the Department [of Education], and has been included in the Special Conditions imposed on each IDEA Part B grant award from 2001 to the
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present.” Pls.’ Ex. 243, at 5. On July 1, 2015, OSEP again designated the District to be a “high risk” grantee. Letter from OSEP to OSSE, July 1, 2015, Pls.’ Ex. 244, at 1–2.
170. In addition, in his report regarding the 2012-2013 school year, the BlackmanJones Court Monitor described the District’s repeated failure to achieve backlog reductions related to timely evaluations required by OSEP. Report of the Monitor for the 2012-2013 School Year, Feb. 3, 2014, Pls.’ Ex. 265, at 12–14. The District’s progress report related to the period between October 1, 2013, and March 31, 2014, stated that it again failed to meet OSEP’s target related to evaluation backlog reduction and identified the same reasons for delay. OSSE IDEA Part B Special Conditions Progress Report #2, clarified June 5, 2014, Pls.’ Ex. 238, at DL 2015 315.
2. OSSE Concluded That DCPS Fails to Comply with the IDEA 171. OSSE also concluded that DCPS needs intervention. On August 21, 2014, OSSE stated that, “based on the totality of the LEA’s data and information,” DCPS “Needs Intervention in implementing the requirements of Part B of IDEA.” Letter from OSSE to DCPS, Re: FFY 2012 LEA Determination, Aug. 21, 2014, Pls.’ Ex. 262, at DL2014 7929. Indeed, the agency cited the “[h]istory, nature and length of time of any reported noncompliance.” Id. Specifically, OSSE noted the LEA’s performance was lacking with respect to timely evaluations for 3-21year-olds and smooth and effective transitions from Part C to Part B. See id. DCPS’s overall rating was 42%, which results from its overall failure to comply with IDEA requirements, a part of which are the issues relevant to this case. Id. at DL2014 7933; see also David Catania, Reforming Special Education, Pls.’ Ex. 271, at PL POST-TRIAL 2110 (“In the most recent performance determination for special education, as required by federal law, DCPS only received
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a 42% rating—the lowest among all public schools—barely escaping substantial intervention, which would have required the District to withhold funding or take legal enforcement action.”).
3. Obvious Flaws in the District’s Policies, Procedures, and Practices Persist 172. Many of the flaws in the District’s data should have been obvious to its leadership. For example, there is no justification for choosing to report enrollment data based on the 2010 census figure, despite the fact that OSEP does not do so and the District uses the annual estimated census figure in its other reports to OSEP, see supra paras. 86–95, especially after plaintiffs brought this issue to the District’s attention in July 2014. See Dunst Expert Report, July 25, 2014, Pls.’ Ex. 25, at 9–11. The District claims that it reports its data according to OSEP’s requirements, see Maisterra Dep. 61:3–19, June 2, 2014, Pls.’ Ex. 14, but then deviates from the manner in which OSEP reports data for this metric without explanation. 173. In addition, it is a matter of concern that the District reports children with IEPs as receiving services by their third birthdays, see supra para. 126, when their own studies show that children often do not receive their related services within 14 days, and their own documents require that services begin by the third birthday. See supra para. 125. 174. The District also made corrections to its statistics and issued new training material after plaintiffs raised issues in this case. See, e.g., Compagnucci Dep. 130:3–131:13, Aug. 12, 2014, Pls.’ Ex. 21 (explaining that he issued a new training document on presumptive eligibility as a result of plaintiffs’ deposition). The District should be discovering such flaws on its own. This case has been going on long enough that the District should have thoroughly examined and improved its policies, procedures, and practices without the need for additional oversight.
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J. THE DISTRICT VIOLATED THE REHABILITATION ACT FOR THE PERIOD UP TO MARCH 22, 2010 1. The Court Previously Concluded that the District’s Actions Prior to March 2010 Violated the Rehabilitation Act
175. As described above, see supra pp. 6–7, the Court found the District liable for violating the IDEA and District law through April 6, 2011, with regard to all plaintiffs. The D.C. Circuit vacated that decision; the Court now finds the District liable with regard to the four plaintiff subclasses’ IDEA and District law claims.
176. The Court also previously found the District liable for violating the Rehabilitation Act through April 6, 2011. Mem. Op. 23, Aug. 8, 2010, ECF No. 198 (“The Court finds that, at least through and including the year 2007, defendants knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations, in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).”); Mem. Op., Nov. 16, 2011, ECF No. 294, ¶¶ 131–33 (“[F]rom 2008 to April 6, 2011 . . . the District of Columbia’s special education policies were a gross departure from accepted educational practices throughout the country . . . [and the District] knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations.”). Those findings were vacated by the D.C. Circuit on class certification grounds. After the case was remanded, the Court ruled for the District on summary judgment for plaintiffs’ post-March 2010 Rehabilitation Act claims; however, at the summary judgment phase, the Court did not resolve the Rehabilitation Act claims up to March 22, 2010. See Mem. Op. 14–15, June 10, 2015, ECF No. 444.
177. Accordingly, while the Court ruled for the defendants’ on summary judgment for plaintiffs’ Rehabilitation Act claims after March 22, 2010, the claims before that date were relitigated at trial.
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2. The District Essentially Concedes That Its Program Was Seriously Deficient Prior to March 2010
178. The District essentially conceded that its program was seriously deficient before it issued its Evaluation, Transition, and Child Find policies on March 22, 2010. Defs.’ Mot. for Summ. J. 39, ECF No. 417 (“The systemic deficiencies that existed at the time this lawsuit was filed no longer exist.”); Mem. in Opp’n to Pls.’ Mot. for Partial Summ. J. and J. Pursuant to Rule 52(c) 3, ECF No. 424 (“That is not to say that the District’s IDEA preschool Part B program was not underperforming in certain respects during the period of July 21, 2005 to December 31, 2007; that general observation is not in dispute.”); Trial Tr., Apr. 7, 2011, Pls.’ Ex. 7, 79:11–14 (District’s counsel: “We’ve never denied that the District’s system for providing special education and related services to three-to-five-year-olds was broken for a long time.”); E-mail from Tameria Lewis, then the OSSE Assistant Superintendent for Special Education, to Kerri Briggs, then the OSSE State Superintendent, Jan. 27, 2010, Pls.’ Ex. 122, at 3 (“The actual performance data in both [the District’s Memorandum of Agreement reports and Annual Performance Reports to OSEP] are awful, so our best hope is to describe in as much detail as possible all of the actions we have taken in the last year to improve compliance in the APR.”).
179. Moreover, in the defendants’ proposed findings of fact and conclusions of the law, defendants do not dispute the merits of plaintiffs’ pre-2010 Rehabilitation Act claims. Instead, they argue solely that plaintiffs cannot prevail on these claims because they are moot. See Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 152, ECF No. 513 (“Accordingly, the Court has no authority to reach the merits of these claims.”).
180. As described in the Court’s accompanying Memorandum Opinion issued on this date, plaintiffs’ pre-2010 Rehabilitation Act claims are not moot because the voluntary cessation
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exception to the mootness doctrine applies. The Court therefore has jurisdiction to reach the merits of these claims, and finds that each plaintiff subclass prevails.
3. The Parties’ Special Education Experts Agree that the District’s Program Was Seriously Deficient prior to March 2010
181. In her 2009 expert report, the District’s expert extensively described the absence of a comprehensive Child Find system and the District’s overall misunderstanding of and disregard for federal law:
This overall misunderstanding of the requirements of the federal law, compounded with a seeming historical lack of cooperation and discussion between the administrators and service providers of Part C, Part B, DCPS, and DHS, reflects the difficulties identified in meeting the obligations of IDEA Parts C and B. The absence of a comprehensive Child Find system clearly has prevented identification, location, and referral of children who may need early intervention or special education services. 2009 Freund Report, Pls.’ Ex. 28, at 2–3; see also id. at 12–13 (“While I am certain that the time spent in a review of the program’s history was insufficient to allow me to capture every detail of the District’s Child Find history since 2000, there was ample material for me to determine 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. . . . And it appears that across several years, the system’s various leadership teams did little to correct the seemingly inefficient and ineffective practices to bring about greater access and outcomes for families and children in need of IDEA Part C and B services.”); Test. of Maxine Freund ¶ 2, Mar. 16, 2011, Pls.’ Ex. 3 (“The District’s Part B Child Find system has a troubled history of failing to identify, locate, and provide services to eligible children aged three through five.”); Trial Tr., Freund Test., Nov. 16, 2015, 22:9–27:4.
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182. Dr. Freund also informed the District that its policies were “problematical, misaligned and in need of improvement.” E-mail from Maxine Freund to Ellen Efros, OAG, Aug. 18, 2009, Pls.’ Ex. 119, at 4. In preparing her 2009 expert report, Dr. Freund stated that she was provided “incomplete documents, drafts, unsigned MOUs, and identified practices that did not benefit the systems involved in Child Find.” Id.
4. OSEP Repeatedly Informed the District That Its Child Find Program Was Seriously Deficient Through March 2010
183. Since at least 1997, OSEP determined that the District failed to comply with the requirements of Part B of the IDEA and has worked with the District to address its on-going noncompliance. See OSEP Notice of Written Findings and Decision and Compliance Agreement, 63 Fed. Reg. 41370, 41371, Aug. 3, 1998, Pls.’ Ex. 201. On March 16, 1998, OSEP entered into a Compliance Agreement with DCPS mandating full compliance with the requirements of Part B of the IDEA. Id. at 41370–71. According to the Agreement, DCPS was required to “ensure and document that no later than three years after the effective date of this Agreement . . . [a]n initial evaluation that meets the requirements of sections 614(a)(1), (b), and (c) of Part B of IDEA is completed for all children with disabilities” and that “[a] Child-Find system is established which identifies and locates all children with disabilities . . . .” Id. at 41374. The District was also required to
Develop policies and procedures to ensure a smooth transition for those individuals participating in the early intervention program under Part H [now Part C] of the IDEA who will participate in preschool programs, including a method for ensuring that when a child turns three, an IEP or IFSP has been developed and implemented by the child’s third birthday as required by section 612(a)(9) of Part B of IDEA. Id. at 41380. OSEP also required the District to address deficiencies in the provision of related services. Id. at 41376–77; see also Mem. Op. ¶¶ 52–53, ECF No. 294.
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184. In 2001, OSEP determined that DCPS had not met the requirement for timely initial evaluations. See Letter from OSEP to DCPS, Nov. 6, 2001, Pls.’ Ex. 202, at DL 8138–39. Based on this determination, OSEP designated DCPS as a “high risk” grantee and attached Special Conditions to its FFY 2001 grant under Part B. Id. at DL 8139. Among the Special Conditions were requirements to ensure that DCPS conduct timely initial evaluations by identifying the reasons that its current processes were inadequate and subsequently developing and implementing appropriate procedures. See id. at DL 8154–55.
185. In each subsequent year through 2008, OSEP cited the District for its failure to comply with the Special Conditions related to the provision of timely initial evaluations and extended the Special Conditions into the following fiscal year. See Letter from OSEP to DCPS, July 25, 2002, Pls.’ Ex. 204, at DL 8186–87; Letter from OSEP to DCPS, Sept. 30, 2003, Pls.’ Ex. 205, at DL 8204–05; Letter from OSEP to DCPS, Sept. 17, 2004, Pls.’ Ex. 206, at DL 8245– 46; Letter from OSEP to DCPS, Aug. 5, 2005, Pls.’ Ex. 207 at 3015; Letter from OSEP to DCPS, June 28, 2006, Pls.’ Ex. 208, at DL 8289, 8297–98; Letter from OSEP to DCPS, July 9, 2007, Pls.’ Ex. 209, at DL 8318; Letter from OSEP to OSSE, July 9, 2008, Pls.’ Ex. 210, at DL 8365; see also Mem. Op. ¶ 55, ECF No. 294.
186. On June 1, 2009, OSEP stated that the District “needs intervention in meeting the requirements of Part B of the IDEA,” because the District “failed to meet the longstanding Special Conditions imposed on its FY 2008 grant under Part B of the IDEA related to . . . timely initial evaluations.” Letter from OSEP to OSSE, Pls.’ Ex. 211, at CF-DL 16913. As a result, OSEP decided to withhold 20% of the District’s FFY 2009 funds, stating:
Given the nature of the noncompliance noted in this letter and that D.C. has had Special Conditions placed on its grant award under Part B of the IDEA since 2001, the Department has concluded that D.C. would be unable to correct its problems in one year. D.C. previously entered into a compliance agreement with
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the Department under the IDEA from 1998-2001, and it did not result in compliance. We therefore feel compelled to take a more serious enforcement action based on the magnitude of the noncompliance with the requirements of Part B of the IDEA and the length of that noncompliance. The Department has significant concerns about D.C.’s inability to correct areas of longstanding noncompliance that directly affect the appropriate provision of special education and related services to D.C.’s children with disabilities. As a result, . . . the Department intends to withhold 20 percent of D.C.’s FFY 2009 funds reserved for State-level activities . . . until D.C. has sufficiently addressed the areas in which it “needs intervention.”
Id. at 16916; see also Mem. Op. ¶ 56, ECF No. 294 (quotations omitted).
187. On June 16, 2009, OSSE asked OSEP to reverse its decision to withhold funds,
noting that it was “a new agency with new leadership resolute in its commitment to correcting
the identified areas of noncompliance . . . .” Letter from OSSE to OSEP, Pls.’ Ex. 212, at DL2
2172. OSEP declined, stating:
[T]he Department can no longer delay more serious enforcement action because of new leadership or a new agency. DC has a long history of turnover in the administration of the school system as a whole and in the administration of its special education program in particular. In the last three years, there have been four special education directors. In prior years when we have declined to take more serious enforcement action because new leadership had just arrived, the District continued to fail to meet many of the basic requirements of Part B of the IDEA. While the State organization and leadership changes, deficiencies in addressing the needs of children with disabilities remain, and many continue to be denied the free appropriate public education which they are entitled to under Part B of the IDEA.
Letter from OSEP to OSSE, June 30, 2009, Pls.’ Ex. 213, at DL2 2176–77; see also Mem. Op. ¶
57, ECF No. 294.
188. OSEP also expressed its reluctance to enter into another agreement with the
District:
We have entered into agreements with DC before with little result. For example, every year since FFY 2001, . . . DC has assured the Department that it will meet all grant terms and conditions and all applicable requirements, but it has not carried out its commitments. Agreements alone with no consequences have repeatedly failed to result in DC achieving compliance with critical requirements of Part B of the IDEA.
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Letter from OSEP to OSSE, June 30, 2009, Pls.’ Ex. 213, at DL2 2177. 189. Later that year, OSEP and OSSE entered into a Memorandum of Agreement “to
establish benchmarks and reporting requirements . . . to bring the OSSE into substantial compliance with the IDEA” and “to resolve their dispute over the status of State-level funds withheld by the Department from the FFY 2009 Part B grant award.” Memorandum of Agreement, Dec. 7, 2009, Pls.’ Ex. 220, at CF DL 19357. According to the agreement, OSSE would only receive the withheld funds after it met certain benchmarks. Id. at CF DL 19367. Among those benchmarks, OSSE was required to demonstrate increasing compliance with the requirement to provide timely initial evaluations and placements to children with disabilities, as well as a reduction in the backlog of untimely initial evaluations. Id. at CF DL 19359–61; see also Mem. Op. ¶ 58, ECF No. 294.
190. On June 3, 2010, OSEP determined, for the fourth consecutive year, that the District “needs intervention” in complying with the requirements of Part B of the IDEA. Letter from OSEP to OSSE, Pls.’ Ex. 214, at DL2 9649. OSEP made its determination after noting, the District’s failure to provide valid and reliable FFY 2008 data for early childhood transition rates and its failure to comply with the Special Conditions related to providing timely initial evaluations and re-evaluations. Id. at 9649–50. OSEP specifically cited the District’s report that “its best available data indicate 8% compliance” regarding the smooth and effective transition requirement. Id. at 9649; see also Mem. Op. ¶ 71, ECF No. 294.
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5. The District Failed to Provide Special Education and Related Services to Thousands of Children Prior to March 22, 2010
191. In 2006, the Court held that plaintiffs’ allegations are sufficient for a prima facie
claim that defendants’ conduct was “grossly out of line with governing standards.” Mem. Op. 4,
ECF No. 55. In doing so, the Court referenced the fact that the District ranked last among states
in the provision of special education services to preschool-age children. Id.
192. Thereafter, the Court held that, at least through 2007, the District failed to ensure
that disabled preschool-age children were identified and received special education services in
violation of the IDEA and District law. Mem. Op. 13–19, ECF No. 198. The Court described
numerous agreed upon facts regarding deficiencies in the District’s Child Find program:
The parties agree that in 2007, 5.74% of children ages 3 through 5 nationwide received special education and related services under Part B of the IDEA.
The parties agree that in 2007, the District of Columbia served 2.94% of its 3- to 5year- olds under the IDEA, which was the lowest rate in the country. . . . The parties agree that between 1992 and 2007, the District of Columbia served 2-3% of its preschool population each year under the IDEA.
The parties disagree as to plaintiffs’ initial assertion that “defendants have served approximately half the number of children ages 3 through 5 in the District of Columbia likely to be eligible for preschool special education under part B [as of 2007].” . . .
Defendants agree that based on the data in 2007 and earlier, this is true; defendants only object to post-2007 data.
The parties agree that between 2000 and 2009, “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. . . . The parties agree that, at least through and including the year 2007, defendants’ public awareness and outreach efforts were unlikely to result in a substantial increase in the number of referrals to preschool special education. . . . The parties agree that, at least through and including the year 2007, defendants’ refusal to accept and act on referrals made by primary referral sources was impeding identification of children eligible for preschool special education. . . . The parties agree that, at least through and including the year 2007, [d]efendants have pursued the same Child Find activities for several years
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without achieving a significant increase in the number of preschool-age children served under Part B. Mem. Op. 14–15, 17, ECF No. 198 (quotations omitted). 193. From 1992 to 2007, the District served, on average, around two to three percent of its pre-school age population. 2015 Dunst Direct ¶ 45. Over that period, the District was pursuing the same Child Find activities for years without achieving a significant increase in the number of preschool-age children served. Id. 194. The 2.94% that the District reported in 2007 was the lowest percentage in the country. 2015 Dunst Direct ¶ 46. That year, 43 states and Puerto Rico served over 5% of their three-to-five-year-old populations. Data Accountability Center, Pls.’ Ex. 176, at CF-DL 14047– 48. The national average was 5.74%. Id. at CF-DL 14048. In 2008, the District’s percentage of children served fell to 2.72, and again was the lowest percentage in the country. Data Accountability Center, Pls.’ Ex. 177, at 1–2; 2015 Dunst Direct ¶ 46. That year, 5.68% of children aged three to five nationwide received Part B special education services. Id. at 2. 195. Thereafter, the District’s percentage increased, but remained seriously deficient, standing at 3.3% in 2009 and 5.4% in 2010. U.S. Department of Education 33rd Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, 2011, Pls.’ Ex. 179, at 95; U.S. Department of Education 34th Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act, 2012, Pls.’ Ex. 180, at 101. The District should have been providing special education and related services to at least 8.5 percent of three-to-five-year-old children. See supra paras. 59–82. 196. Through March 22, 2010, the District was still failing to serve hundreds of children annually. In 2010, for example, there were 17,605 three-to-five-year-old children in the District. See supra paras. 87, 89. The District reported that 957 children received special
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education and related services at that time. Part B 2010 Child Count Data, Mar. 4, 2011, Pls.’ Ex. 185, at DL4 2051. To satisfy the 8.5% benchmark in 2010 alone, the District would have needed to provide services to 1,496 children, or 539 additional children.
197. Dr. Freund and Dr. Dunst agree that the failure was caused by many deficiencies in the Child Find system generally, including weaknesses in the District’s public awareness and outreach efforts. 2015 Dunst Direct ¶¶ 45, 52–57; 2009 Freund Report, Pls.’ Ex. 28, at 2. For example, the District engaged in many public awareness activities, such as newspaper and radio announcements, which, standing alone, have been found ineffective nationally as Child Find strategies. 2015 Dunst Direct ¶ 53. Public awareness and outreach activities are most effective when they are used in conjunction with ongoing, direct contact with primary referral sources, such as physicians, hospitals, public health centers, and social services departments. Id.
198. In addition, the District’s outreach documents stated that referrals could be made by professionals such as pediatricians. 2015 Dunst Direct ¶ 54. Moreover, for at least part of the period prior to 2010, DCPS had a policy of not contacting a primary referral source after an eligibility determination is made. Johnston-Stewart Dep. 59:1–60:9, Nov. 13, 2008, Pls.’ Ex. 288; 2015 Dunst Direct ¶ 54. That practice most likely resulted in many children who were eligible for preschool special education not being located and screened for preschool special education. Id. The best practice is instead to acknowledge a referral and inform the person making the referral of the eligibility determination and the provision of services so that they will be more likely to make referrals in the future. Id.
199. Dr. Dunst recommended that the District make numerous improvements to its program to address the failure to identify and serve children with disabilities. 2015 Dunst Direct
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¶ 58. The Court ordered the District to make those improvements. Mem. Op. ¶¶ 151–60, ECF No. 294.
6. The District Failed to Provide Timely Initial Evaluations to over a Thousand Children prior to March 22, 2010
200. The District reported that only 45.2% of 3-21-year-olds received timely evaluations for FFY 2007 (2007-2008), 66.56% of children received timely evaluations for FFY 2008 (2008-2009), and 75.09% of children received timely evaluations for FFY 2009 (20092010). OSSE Part B APR, FFY 2007, Feb. 2009, Pls.’ Ex. 219, at DL 18912; OSSE Part B APR, FFY 2008, Feb. 2010, Pls.’ Ex. 221, at DL2 2242; OSSE Part B APR, FFY 2009, Feb. 2011, Pls.’ Ex. 222, at DL3 814.
201. In the three subsequent progress reports that include data for the remainder of the relevant period, the District reported that only 65.4%, 70%, and 68% of 3-21-year-olds who were referred received timely initial evaluations and placements. OSSE Memorandum of Agreement Progress Report #1 (Reporting Period Sept. 4, 2009-Dec. 4, 2009), Jan. 11, 2010, Pls.’ Ex. 223, at CF DL 19417; OSSE Memorandum of Agreement Progress Report #2 (Reporting Period Dec. 5, 2009-Mar. 5, 2010), Apr. 1, 2010, Pls.’ Ex. 224, at CF DL 19428; OSSE Memorandum of Agreement Progress Report #3 (Reporting Period Mar. 6, 2010-June 6, 2010), July 2, 2010, Pls.’ Ex. 225, at DL2 11378.
202. These evaluation data do not apply only to three-to-five-year-old children, but do include them. Moreover, eligibility determinations are typically issued promptly after the completion of evaluations. 2015 Dunst Direct ¶ 113. Therefore, the percentages of timely evaluations should be nearly identical to the eligibility determination statistics described below. Id. In fact, the data may be exactly the same, since, at least for the period from 2011 to the present, the District has reported data regarding the percentage of timely eligibility determinations, but
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referred to that data as the percentage of timely evaluations. Id.; see also Proddutur Dep. 76:11–
20, July 2, 2014, Pls.’ Ex. 18. As described below regarding eligibility determinations, this adds
up to untimely evaluations and determinations for well over one thousand children over the years.
203. Over this period, delays were caused at least in part by the District’s failure to
respond timely to referrals:
Sean, sadly I must tell you the number [of calls to Early Stages from families with complaints] is a bit staggering. Unfortunately, practically every other call is for families not receiving calls back. On a daily basis I receive at least 4. I had even taken it upon myself to change the return call time from the 24-48 hours to 48-72 hours, but, I must say, even with that, it still has not worked. I hate to be the bearer of bad news, but this has been the reality. Sorry. . . .
Unfortunately, most of the calls are from families/individuals who have not received any contact since making the initial referral. So, to further clarify, the families are just trying to get to the initial ASQ screening.
E-mails from Carole Pratt, DCPS, to Sean Compagnucci, DCPS, Nov. 30, 2010, Dec. 1, 2010,
Pls.’ Ex. 127, at 1; see also 2015 Dunst Direct ¶ 114.
204. Dr. Dunst recommended that the District make numerous improvements in
addition to those referenced above to address the failure to provide timely evaluations and
eligibility determinations for children with disabilities in the District. 2015 Dunst Direct ¶ 115.
The Court ordered the District to make those improvements. Mem. Op. ¶¶ 161, 164, ECF No.
294.
7. The District Failed to Provide Timely Eligibility Determinations to over a Thousand Children prior to March 22, 2010
205. The Court previously found it undisputed that “‘[f]rom 2000 through 2008,
62.02% of all children ages 3 through 5 received an eligibility determination within 120 days of
referral.’” Mem. Op. 17, ECF No. 198; see also 2015 Cupingood Direct ¶ 16. This amounts to
over one thousand children who did not receive timely determinations over that period. Id.
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206. Those same delays continued through 2010. Dr. Cupingood concluded that only 56.75% of preschool-age children received a timely eligibility determination from 2008 through 2010 (41.44% in 2008, 68.43% in 2009, and 55.23% in 2010). Id. at ¶ 19.
207. As described above, see supra para. 203, delays were caused in part by the District’s failure to respond timely to referrals. Dr. Dunst made several recommendations for improvement, which were ordered by the Court. See supra para. 204.
8. The District Failed to Provide Smooth and Effective Transitions to Many Hundreds of Children Prior to March 22, 2010
208. In 2010, the parties agreed that, at least between and including the years 2000 and 2007, the District’s actions “didn’t result in effective transitions for children into Part B from Part C.” Mem. Op. 19, ECF No. 198.
209. The District reported the following percentages of children who received smooth and effective transitions, which demonstrate poor performance and substantial variability in the District’s results: 17% for the 2004-2005 school year, 37% for the 2005-2006 school year, 40.62% for the 2006-2007 school year, 62% for the 2007-2008 school year, 8.22% for the 20082009 school year, and 30.25% for the 2009-2010 school year. District of Columbia Part B FFY 2004 SPP Response Table, Pls.’ Ex. 215, at DL 8066; District of Columbia Part B FFY 2005 SPP/APR Response Table, Pls.’ Ex. 216, at DL 8087; District of Columbia Part B FFY 2006 SPP/APR Response Table, Pls.’ Ex. 217, at DL 8110; District of Columbia Part B FFY 2007 SPP/APR Response Table, Pls.’ Ex. 218, at 8; OSSE Part B APR, FFY 2007, Pls.’ Ex. 219, at DL 18917; OSSE Part B APR, FFY 2008, Pls.’ Ex. 221, at DL2 2246; OSSE Part B APR, FFY 2009, Pls.’ Ex. 222, at DL3 821; see also Mem. Op. 20, ECF No. 198; 2015 Dunst Direct ¶ 124.
210. These low rates of compliance resulted in delays for many hundreds of children over the years. 2015 Dunst Direct ¶ 125. For example, for the 2008-2009 period, the District
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reported that only six children received a timely transition although 94 were referred. OSSE Part B APR, FFY 2008, Pls.’ Ex. 221, at DL 2246. The District reported that children received a transition an average of 139 days late. Id. at DL 2247. For 2009-2010, the District reported that 113 children did not have IEPs developed and implemented by their third birthdays. OSSE Part B APR, FFY 2009, Pls.’ Ex. 222, at DL3 822–23. That year, the District also reported:
[T]he range of days beyond the third birthday for a student to have an IEP developed and implemented is 1-572 days. The reasons for delay include LEAs not having adequate resources (evaluators) to conduct evaluations; a lack of understanding regarding the requirement to conduct evaluations by a child’s third birthday rather than applying the State-established timeline for initial evaluations (120 days); difficulty coordinating evaluations and eligibility meetings with parents; and inadequate systems for communication between Part C and Part B. Id. at DL3 823.
211. The Court found it undisputed that “at least through and including the year 2008, the District’s most significant challenge . . . [was] getting children through this [transition] process in a timely manner with the least amount of disruption to the child and family.” Mem. Op. 20, ECF No. 198 (citation omitted). Moreover, “at least through and including the year 2007, the procedures used by defendants to screen children exiting Part C were in many cases not necessary and delayed provision of preschool special education.” Id. (citation omitted). Indeed, “the screening procedures used by defendants with preschool children were unreliable and were not always aligned with accepted practices in the field.” Id. (citation omitted); see also 2015 Dunst Direct ¶ 126; Freund Dep. 49:14–51:16, Nov. 23, 2009, Pls.’ Ex. 9.
212. Over that period, DCPS generally did not use the assessment results provided by Part C to determine eligibility for Part B. 2015 Dunst Direct ¶ 126; see also Freund 2009 Expert Report, Pls.’ Ex. 28, at 2 (“This overall misunderstanding of the requirements of the federal law, compounded with a seeming historical lack of cooperation and discussion between the
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administrators and service providers of Part C, Part B, DCPS, and DHS, reflects the difficulties identified in meeting the obligations of IDEA Parts C and B.”); Sharif Dep. 83:15–85:3, Nov. 24, 2008, Pls.’ Ex. 8 (describing complaints from parents related to new rounds of Part B assessments where a child’s disability is clear). The policy of starting the eligibility determination process over from scratch necessarily resulted in delays in eligibility determinations for many children. 2015 Dunst Direct ¶ 126.
213. Moreover,during that period, the District struggled with “friction” between the Part C and Part B teams. E-mail from Dr. Maisterra to Jerri Johnston-Stewart, OSSE, Nov. 23, 2009, Pls.’ Ex. 121, at 1; see also E-mail from Dr. Beers to Dr. Maisterra and Jerri JohnstonStewart, Nov. 23, 2009, Pls.’ Ex. 121, at 3 (“After our meeting in October, I had thought that we were all on the same page. However, it did not appear to be the case at the Part C provider meeting on Thursday. . . . During the meeting, it became clear that no information from our October meeting (OSSE and DCPS) had been shared with any of the Part C providers.”).
214. Finally, according to the District, of the 186 children referred by Part C to Part B during the 2007-2008 school year, 137 children (74%) did not receive a timely transition due to their “parent[al] refusal to provide consent [which] caused delays in evaluation or initial services.” OSSE Part B APR, FFY 2007, Pls.’ Ex. 219, at DL 18918. Dr. Dunst concluded that such a rate is exceedingly high and raises questions about why the delay would be attributed to so many families. 2015 Dunst Direct ¶ 127.
215. Dr. Dunst recommended that the District make improvements in addition to those referenced above to address the failure to provide smooth and effective transitions. 2015 Dunst Direct ¶ 128. The Court ordered the District to make those improvements. Mem. Op. ¶¶ 162–63, 165, ECF No. 294.
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III. CONCLUSIONS OF LAW A. BACKGROUND 216. Plaintiffs allege that, in violation of federal and District law, the District failed to
implement policies, procedures, and practices to ensure that (1) preschool-age children with disabilities are identified for the purposes of offering special education; (2) preschool-age children with disabilities are timely evaluated for the purposes of offering special education; (3) preschool-age children with disabilities receive a timely determination of their eligibility for special education; and (4) children in the early intervention program under Part C of IDEA receive a smooth and effective transition to preschool special education under Part B by the child’s third birthday.
217. Plaintiffs are preschool-age children with disabilities as defined in the subclasses. See supra p. 5. Subclass 1 is represented by named plaintiffs D.L. and J.B. Subclass 2 is represented by named plaintiffs T.F. and H.W. Subclass 3 is represented by named plaintiffs D.L., H.W., and T.F. Subclass 4 is represented by named plaintiffs X.Y. and T.L. Mem. Op. 24– 25, ECF No. 389. The named plaintiffs and the subclasses that each of the named plaintiffs represent bring each of their claims against all defendants.
218. Defendants are the District of Columbia, Kaya Henderson, in her official capacity as the Chancellor of DCPS, and Hanseul Kang, in her official capacity as the State Superintendent of Education.6 In most instances, defendants are referred to collectively herein as the District. All of the defendants are liable for the reasons identified herein.
6 Other individuals were in those official roles at the time that this lawsuit was filed and since then. Federal Rule of Civil Procedure 25(d) provides for the automatic substitution of public officers when a public officer is a party to an action in an official capacity.
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219. As Chancellor, Ms. Henderson is responsible for the administration of the Local Education Agency (“LEA”) DCPS, including the implementation of District and federal laws related to special education, such as Part B of the IDEA. D.C. Code 38-174(a), (c)(3).
220. As State Superintendent, Ms. Kang supervises the State Education Agency (“SEA”) OSSE, serves as the chief state school officer for the District, and represents the District in all matters before the United States Department of Education. D.C. Code § 38-2601.01.
221. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. § 1331 and § 1367.
B. THE DISTRICT’S POLICIES, PROCEDURES, AND PRACTICES DO NOT SATISFY THE IDEA AND DISTRICT LAW
222. The District previously contended that it complied with its IDEA obligations as of March 22, 2010, because it issued three policies on that date. See Defs.’ Mot. for Summ. J. 1, ECF No. 417. That argument failed to grasp the scope of the District’s obligations under the IDEA. The relevant provisions of the IDEA do not merely require that the District issue policies. Rather, they require that the District implement policies and procedures that ensure identification and provision of a FAPE, timely evaluation, timely eligibility determination, and smooth and effective transition of preschool-age children with disabilities. See 20 U.S.C. § 1412(a)(1)(A) (requiring states to have “in effect policies and procedures to ensure that [a] free appropriate public education is available to all children with disabilities”); § 1412(a)(3)(A) (requiring a state to have “in effect policies and procedures to ensure that . . . [a]ll children with disabilities . . . are identified, located, and evaluated”); § 1412(a)(9) (requiring states to have “in effect policies and procedures to ensure that . . . [c]hildren participating in early intervention programs . . . and who will participate in preschool programs . . . experience a smooth and effective transition to those preschool programs . . . .”).
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223. In Cordero by Bates v. Pennsylvania Deptartment of Education, 795 F. Supp. 1352, 1361–62 (M.D. Pa. 1992), plaintiffs brought a class action under the IDEA and the Rehabilitation Act to challenge the defendant’s systemic failure to provide timely and appropriate placements to children with disabilities. That defendant argued that, despite the delays and difficulties in placing large numbers of children, the state had satisfied its IDEA duties, which were limited to “providing funds, promulgating regulations and reviewing individual complaints.” Id. at 1361. The court explicitly rejected the state’s narrow view of the scope of its responsibilities under the IDEA:
As defined by the IDEA, the state’s role amounts to more than creating and publishing some procedures and then waiting for the phone to ring. The IDEA imposes on the state an overarching responsibility to ensure that the rights created by the statute are protected, regardless of the actions of local school districts. . . . The state must assure that in fact the requirements of the IDEA are being fulfilled. Id. at 1362 (citations omitted). 224. The District has repeatedly acknowledged the need for its policies actually to achieve results. Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 64, June 3, 2011, ECF No. 254 (“The District’s Part B system has begun to be built, and it needs time to be tested.”); Mem. Op. ¶ 68, ECF No. 294 (“Dr. Nathaniel Beers acknowledged that it would take at least three to five years to ensure that the recent reforms to the District’s special education policies and to the Early Stages Center are stabilized and headed in the appropriate trajectory.” (quotation omitted)); Test. of Maxine Freund ¶ 10, Mar. 16, 2011, Pls.’ Ex. 3 (“In sum, it is my expert opinion that the District has achieved several of its initial goals as it works to overcome the historic dysfunction in its Part B system, and has now established a strong structure of rules, regulations, policies, and procedures, administered by talented leadership and sufficiently staffed, that can serve as the foundation for a well-functioning and effective Part B system.”); Trial Tr.,
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Freund Test., Nov. 16, 2015, at 28:21–29:21, 32:13–15 (“[T]he backbone of the work . . . is about outcomes.”).
225. In accordance with the IDEA, the Court in its 2010 summary judgment decision and at the 2011 trial examined whether the District’s policies, procedures, and practices were actually ensuring that preschool-age children were being identified and receiving FAPE’s, were receiving timely evaluations and timely eligibility determinations, and that children receiving Part C services were receiving smooth and effective transitions to Part B services. Specifically, the Court examined evidence of the District’s rates of enrollment, timely evaluation, timely eligibility determination, and smooth and effective transition for preschool-age children. Mem. Op. 13–21, ECF No. 198; Mem. Op. ¶¶ 23–45, ECF No. 294. The Court held, on the basis of statistical evidence and the other evidence regarding the District’s program, that the District had failed to fulfill its duties under the IDEA and District law. Mem. Op. 13–21, Aug. 10, 2010, ECF No. 13–21; Mem. Op. ¶¶ 105–26, ECF No. 294.
226. Moreover, in its 2011 decision, the Court issued an injunction that required the District to meet benchmarks of at least 8.5% enrollment in special education and related services and at least 95% with respect to timely initial evaluations, timely eligibility determinations, and smooth and effective transitions, in order to comply with its IDEA and District law obligations. Mem. Op. ¶¶ 147–50, ECF No. 294. In doing so, this Court sought compliance, not perfection. See Mem. Op. 19, ECF No. 444 (“[T]his Court never sought to demand perfection, and instead
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found that the District failed to provide required services to significant numbers of preschool-age disabled children.”).7
227. The Court further required the District to show sustained compliance by satisfying all of the numerical benchmarks simultaneously during a period of three or four years. Mem. Op. ¶¶ 169–72, ECF No. 294. The injunction also imposed programmatic requirements, which would not terminate until the numerical benchmarks were met. Id.
228. Thus, the Court made clear that, in order to satisfy its obligations, the District could not simply meet programmatic requirements. It had to show that it its policies, procedures, and practices were working effectively.8 The Court recently repeated this point. See Mem. Op. 18–19, ECF No. 444 (“The question . . . is whether the District’s policies were successfully implemented, thus ensuring that the District met the required conditions.”).
229. The District claims that it has substantially improved its program and has high rates of statistical compliance. However, as described above, the District is still failing to comply with its obligations with regard to large numbers of preschool-age children. The District previously had such a low level of compliance that, despite its improvement, it is still failing to comply with federal and District law.
7 As described above, although the D.C. Circuit vacated the Court’s 2011 injunction based upon class certification issues, that decision did not cast into doubt anything with regard to the substance of the Court’s Memorandum Opinion & Findings of Fact and Conclusions of Law, or the injunction that issued therewith after trial. See ECF No. 295. Therefore, while the injunction is no longer valid, the District had ample notice of the Court’s reasoned opinions on issues critical to this case. See Mem. Op. 35, 37, ECF No. 444. 8 OSEP similarly assesses, on the basis of statistical data reported by the District, whether the District is complying with its obligations under the IDEA. See, e.g., Letter from OSEP to OSSE, June 23, 2014, Pls.’ Ex. 239, at 6–7 (“Although D.C. has made progress in ensuring timely initial evaluations and reevaluations and reducing the backlog of children with overdue initial evaluations and reevaluations, the State has not yet achieved compliance with the requirements in IDEA sections 612(a)(7) and 614(a) through (c) and 34 C.F.R. §§300.301(c)(1) and 300.303.”).
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230. Plaintiffs identified fewer programmatic failures than at previous stages in this case. That is in large part because the District has improved its program and therefore its flaws are not as obvious as they once were. For the reasons described above, see supra paras. 145–46, additional detail regarding the specific flaws in the District’s program that led to these statutory failures is impractical and unnecessary. See also Cordero by Bates v. Pa. Dept. of Educ., 795 F. Supp. at 1362–63 (stating that where evidence showed that “numerous handicapped children in the Commonwealth are not receiving free appropriate public educations” and that “significant numbers of handicapped children are made to wait inordinate amounts of time to obtain placements in private schools,” it was “well within [the Court’s] powers to declare that the Defendants’ special education system as well as its supervision and leadership under the [IDEA] are inadequate and to order injunctive relief to fix the problems”).
231. The District argues that plaintiffs raised issues with the District’s statistics, and made adjustments to the District’s statistics, which they did not raise or make at the 2011 trial. See, e.g., Trial Tr., Nov. 12, 2015, 19:8–10 (District’s counsel: “[T]he statistics that plaintiffs offer today are not the statistics that the Court credited in 2011. It’s not apples to apples.”). That is correct. In general, plaintiffs had no reason to assess the accuracy of the District’s statistics in 2011 because, at that time, the District’s own statistics demonstrated its failures. See, e.g., Mem. Op. ¶¶ 26–28, ECF No. 294. At this stage, the District produced statistics which purport to exceed the 2011 benchmarks. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 101, 109, 119 (relating to benchmarks for enrollment, timely eligibility determinations, and smooth and effective transitions). Therefore, plaintiffs looked more closely at those statistics, which ultimately exposed their flaws. Had plaintiffs done so previously, the District’s statistics for the previous period, see supra paras. 191–215, would almost certainly have been lower.
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232. The District also argues that plaintiffs’ statistics are inappropriate because they purportedly “turn on subjective determinations made by plaintiffs’ attorneys, and they use business rules that they have created themselves without the input of OSSE, DCPS, the Federal Government or any other state or local education agency.” Trial Tr., Nov. 12, 2015, 19:18–22; see also Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 112 (“Plaintiffs employed a series of analytical assumptions that depart, in critical respects, from OSSE’s business rule for calculating [timely eligibility determinations].”); id. at ¶ 123 (“Unlike the District’s processes, Plaintiffs’ counsel’s work [in calculating timely transitions] was not driven by standardized business rules specifying the relevant records or the standards against which records are to be analyzed.”). However, as described herein, plaintiffs’ corrections to the District’s statistics are grounded in facts and law. For example, as required by the IDEA, all services must commence by the child’s third birthday. See supra paras. 123–25.
233. The District also argues that plaintiffs’ method of calculation “relies on malleable standards such as reasonableness, fairness, [and] common sense, instead of objective data points.” Trial Tr., Nov. 16, 2015, 68:15–17. First, it is not objectionable to rely on reasonableness, fairness, and common sense. Second, the only rule that plaintiffs proffer that is arguably subjective relates to parental delay. Plaintiffs believe that the District must revise its parental delay policy so that it uses common sense and fairness to determine when any delay should be attributed to the LEA and when any delay should be attributed to the parent, consistent with 34 C.F.R. § 300.301(d)(1) (“The timeframe described in paragraph (c)(1) of this section does not apply to a public agency if—(1) The parent of a child repeatedly fails or refuses to produce the child for the evaluation.”). For example, the parental delay rule should not allow attempts at parent contact that are clearly ineffective, such as repeat calls to a disconnected telephone
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number, to count towards meeting the minimum number of attempts at contact. The revised rule should account for both delays by the LEA in attempting to contact the parent and in parental responsiveness, all of which should be documented. Such a rule could be objective while looking to all of the relevant facts, rather than looking just at whether there were three attempts at communication using more than one form of communication. See Trial Tr., Dunst Test., Nov. 12, 2015, 109:18–21 (stating that standards in federal reporting “[s]hould be objective, but . . . need[] to account for all the variations that occur in real life situations”). That is preferable to the method that the District is currently using, which, as applied, unfairly attributes delay to parents and artificially inflates its resulting statistics. See supra paras. 158–60. This Court is not setting the precise parameters of the rule. Therefore, the District has the flexibility that it needs to craft a rule that will work for it.
234. The District also argues that plaintiffs’ approach is too time-consuming because it took plaintiffs’ counsel three months to prepare their analysis of individual children’s records. Trial Tr., Nov. 16, 2015, 66:22–67:2. Plaintiffs are not suggesting that the District regularly or even ever analyze children’s files as plaintiffs did. That was done for purposes of this litigation to understand the District’s compliance with the IDEA, how the District reached its statistical conclusions in practice, to identify flaws in that process, and to summarize large quantities of evidence for the Court. Now that the flaws are identified, the District should ensure that its data management system is able to track the relevant metrics so that it would not need to perform a child-by-child analysis in the normal course, although a similar type of analysis may still be useful as part of the District’s monitoring process.
235. The District suggests that if its statistics are in fact deficient, as plaintiffs argue, it is because the District was working toward compliance with the wrong rule in mind and that
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“[t]here’s nothing in the record to suggest that if the assumptions were to change, the processes wouldn’t work, or that the processes would subsequently violate the IDEA.” Trial Tr., Nov. 16, 2013, 71:9–73:8. For example, the District implies that if it needed to start the 120-day timeline when a non-parent referred a child, use the annual census estimates as a denominator, or ensure that children receive all of their special education and related services by their third birthday, it could do so and meet the required benchmarks. The Court looks forward to seeing such results. However, there is ample evidence that suggests otherwise. For example, as described above, see supra para. 117, the District has long set a goal of providing eligibility determinations to children in 60 (rather than 120) days, but, as of now, it is not even complying with its obligation to complete the process in twice that amount of time.
236. In sum, plaintiffs’ counsel analyzed the files of individual students in an effort to demonstrate the District is not complying with its affirmative obligations under the IDEA. Rather than disputing plaintiffs’ findings, the District argues that their method of analysis is invalid. In making this argument, the District overlooks this Court’s repeated rulings that the District’s compliance will be assessed with reference to the outcomes of its policies. See supra para. 53. The plaintiffs simply evaluated data the District provided to them, and the Court will credit their findings.
C. SUBCLASS 1 IDEA AND DISTRICT LAW CLAIMS 237. Subclass 1 alleges two claims under the IDEA and District law: (1) that the District failed to ensure that preschool-age children with disabilities receive FAPE’s and (2) that the District failed to ensure that preschool-age children with disabilities are identified for the purposes of offering special education services. These two claims hinge on the same fundamental allegation that, as a result of its deficient Child Find practices, the District is not ensuring that
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children with disabilities receive needed special education and related services. See Mem. Op. 11, ECF No. 482 (“As they always have, plaintiffs continue to use the enrollment figures as one of many potential ways to approximate the District’s success in identifying and locating disabled children . . . .”); Mem. Op. ¶ 119, ECF No. 294 (“Based on paragraphs 23–37 of the above findings of fact [including findings related to deficient enrollment numbers and the denial of a FAPE], the Court holds that, from 2008 to April 6, 2011 (the first day of trial), defendants failed to identify and provide timely initial evaluations to all preschool-age children with disabilities in the District of Columbia, in violation of 20 U.S.C. §§ 1412(a)(3)(A) and 1414(a)(1)(C).”); N.G. v. District of Columbia, 556 F. Supp. 2d 11, 16 (D.D.C. 2008) (“This mandate is known as the ‘Child Find’ obligation, an affirmative obligation of every public school system to identify students who might be disabled and evaluate those students to determine whether they are indeed eligible. As soon as a child is identified as a potential candidate for services, DCPS has the duty to locate that child and complete the evaluation process. Failure to locate and evaluate a potentially disabled child constitutes a denial of FAPE.”).
1. FAPE Claim 238. IDEA’s primary mandate is “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 . . . .” 20 U.S.C. § 1400(d)(1)(A). It is required to have “in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive . . . .” 20 U.S.C. § 1412(a)(1)(A); see also N.G., 556 F. Supp. 2d at 15–16 (“[Under the IDEA] all public education agencies are required to have in effect policies and
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procedures to ensure that: [a]ll children with disabilities . . . who are in need of special education
and related services, are identified, located and evaluated.” (citation omitted)).
239. The term “free appropriate public education” means special education and related
services that:
(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d).
20 U.S.C. § 1401(9); see also Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 203 (1982) (ruling that a state satisfies its requirement to provide a FAPE “by
providing personalized instruction with sufficient support services to permit the child to benefit
educationally from that instruction”).
240. District law, which incorporates the federal FAPE obligations, requires:
All local education agencies (LEA) in the District of Columbia [to] ensure, pursuant to the Individuals with Disabilities Education Act (IDEA), that all children with disabilities, ages three to twenty-two, who are residents or wards of the District of Columbia, have available to them a free appropriate public education (FAPE) and that the rights of these children and their parents are protected.
5-E D.C.M.R. § 3000.1; see also 5-E D.C.M.R. § 3002.1(a), (e) (stating that LEAs shall provide
a FAPE to each child with a disability).
241. The Court previously held that, through April 6, 2011, the District denied a FAPE
to a large number of children aged three to five years old in violation of the IDEA and District
law. Mem. Op. 15–16, 24 ECF No. 198 (through 2007); Mem. Op. ¶¶ 111–13, ECF No. 294
(through April 6, 2011).
242. After the D.C. Circuit vacated those findings of liability, the Court again found
that the District violated the IDEA and District law. The Court addressed the District’s failure to
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identify and did not explicitly address the FAPE allegations. Mem. Op. 11, ECF No. 444 (“Thus, plaintiffs have already shown and the Court has already found that there is no material dispute: Prior to 2007, the District failed to adequately identify children pursuant to its duties under the IDEA.”); id. at 14 (“[T]he Court finds that at least through and including the year 2007, the District’s actions constituted violations of the D.C. law as to each subclass.”); id. at 42 (“[P]laintiffs’ motion for partial judgment pursuant to Rule 52(c) from 2008 through April 6, 2011 will be granted as to plaintiffs’ claims under the IDEA and D.C. law . . .”). As described above, these two claims hinge on the same fundamental allegation. See supra para. 238.
243. In the joint pretrial statement, the District objected to plaintiffs’ FAPE claim on three grounds. See ECF No. 484, at 13. First, the District contends that “the generic denial of FAPE proposed is derivative of the subclass claims identified as Claims Two [identification], Three [timely eligibility determinations] and Four [smooth and effective transitions] in this Pretrial Statement.” Id. It is not objectionable or uncommon for the violation of one statutory provision to result in the violation of another. Moreover, in 2010 on summary judgment motions and in 2011 following the last trial, the Court held that the District failed to provide a FAPE to a substantial number of children with disabilities, see Mem. Op. 13–16, ECF No. 198; Mem. Op. ¶¶ 105–13, ECF No. 294, and also that the District failed to identify children with disabilities for purposes of providing them with special education services, Mem. Op. 16–19, ECF No. 198; Mem. Op. ¶¶ 114–23, ECF No. 294. The failure to identify, and the subsequent denial of a FAPE, differs from the harm defined in claims 3 and 4, that is, the failure to have eligibility timely determined and failure to be smoothly and effectively transitioned.
244. Second, the District contends that “no generic FAPE claim was pled in the Second Amended Complaint as a separate cause of action, and cannot be advanced by the subclasses as
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certified.” Parties’ Joint Pretrial Statement 13, ECF No. 484. That is not true. Plaintiffs claimed that: (1) “[t]he IDEA and its implementing regulations require that ‘[a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive . . . .’ 20 U.S.C. § 1412(a)(1)(A); see also 20 U.S.C. § 1400(d)(1)(A); 34 C.F.R. § 300.121; [and] (2) Defendants’ actions violate 20 U.S.C. § 1412(a)(1)(A) [requirement that FAPE be available to all children] . . . and the implementing regulations.” Second Am. Compl. ¶¶ 110, 114, ECF No. 398. Plaintiffs also claimed that the District violated their FAPE obligations under District law. Id. at ¶¶ 126, 128–30. Indeed, as described above, see supra para. 243, the Court ruled on plaintiffs’ FAPE claim in 2010 and again in 2011.
245. Third, the District contends that “[p]laintiffs’ claim, as proposed, would be contrary to established law in the Circuit, as a denial of FAPE does not automatically result from every violation under the IDEA.” Joint Pretrial Statement 13, ECF No. 484 (citing Leggett v. District of Columbia, 793 F.3d 59, 67 (D.C. Cir. 2015)). That is of course true: a procedural violation of the IDEA constitutes a denial of a FAPE only if it “‘results in loss of educational opportunity’ for the student.” Leggett, 793 F.3d at 67 (citing Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006)). However, in this case, a disabled student is clearly denied educational opportunities if the District fails to identify him or her at the outset. Indeed, if the District fails to identify a disabled student, then there will simply be no way that the student is afforded the necessary accommodations, thus resulting in a loss of educational opportunity and a substantive violation, rather than one of a nonactionable procedural nature. See id., at 67 (“[A] school district’s failure to comply with the procedural requirements of the IDEA will be actionable only if those procedural violations affected the student’s substantive rights.”
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(citation omitted)). The failure to identify a disabled student is therefore actionable as a denial of a FAPE. For all of these reasons, plaintiffs’ FAPE claim is viable.
2. Child Find Claim 246. The District is also required to have “in effect policies and procedures to ensure that . . . [a]ll children with disabilities residing in the State . . . and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” 20 U.S.C. § 1412(a)(3)(A). 247. District law adopts this requirement: “The LEA shall ensure that procedures are implemented to identify, locate, and evaluate all children with disabilities residing in the District who are in need of special education and related services . . . .” 5-E D.C.M.R. § 3002.1(d)); see also 5-E D.C.M.R. § 3002.3(a) (“The LEA shall ensure that procedures are in place to identify, locate and evaluate children with disabilities residing in the District or children who are wards of the District.”). 248. The Court previously held that, through April 6, 2011, the District failed to comply with its Child Find identification duties in violation of the IDEA and District law. Mem. Op. 18, 24, ECF No. 198 (through 2007); Mem. Op. ¶¶ 118–19, 121–22, ECF No. 294 (through Apr. 6, 2011); Mem. Op. 11, 13–14, 19–20, 42, ECF No. 444 (through Apr. 6, 2011, post-remand).
3. Measurement 249. In its previous decisions, the Court found the District liable on the FAPE and Child Find claims based on facts regarding the District’s inadequate enrollment rates of preschool-age children in special education services. See Mem. Op. 14–16, ECF No. 198; Mem. Op. 23–32,
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111, 119, ECF No. 294. See also infra para. 237. Thus, the Court has held that the enrollment rate is the relevant numeric measure for Subclass 1’s IDEA and District law claims.
250. A child shall be considered enrolled, not just when the child has an IEP, but when a child has started to receive all of the services identified in the IEP. 34 C.F.R. § 300.641(a) (“report the number of children with disabilities receiving special education and related services”); 34 C.F.R. § 300.644 (“report children with disabilities who are enrolled in a school or program . . . that—(a) Provides them with both special education and related services . . .”); OSEP EDFacts Submission System A ges 3-5, Pls.’ Ex. 183, at 6 (“Include all children with disabilities (IDEA) who are ages 3 through 5 receiving special education and related services according to an individual education program or services plan on the count date.”). Child Find requires not just policies, procedures, and practices that ensure identification, location, and evaluation, see 20 U.S.C. § 1412(a)(3)(A), but also that the District have policies, procedures, and practices that ensure that “a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” Id. Indeed, the entire point of the Child Find requirement is to provide services to children with disabilities. The District should record and track when children first receive special education and each related service required by an IEP.
251. In addition, based on paragraphs 86–95 above, the District’s enrollment percentage should be calculated based upon the U.S. Census Bureau’s estimated annual census figure for the District for all years between the decennial censuses.
4. Conclusion 252. Based on paragraphs 56–98, 143–146, 162–165, and 172–174 of the above findings of fact, the Court holds that, from April 7, 2011, to November 12, 2015 (the first day of
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the second trial), the District has (1) in violation of 20 U.S.C. § 1412(a)(1)(A) failed to have in effect policies and procedures to ensure that a FAPE is available to preschool-age children with disabilities in the District, and (2) and in violation of 20 U.S.C. § 1412(a)(3)(A) failed to have in effect policies and procedures to ensure that preschool-age children with disabilities in the District are identified, located, and evaluated for the purposes of offering special education services and that a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
253. Based on the same facts, the Court also holds that from April 7, 2011, to November 12, 2015 (the first day of the second trial), the District has, (1) in violation of District law (5-E D.C.M.R. §§ 3000.1, 3002.1(a), (e)), failed to ensure that a FAPE is available to preschool-age children with disabilities in the District, and (2) in violation of District law (5E.D.C.M.R §§ 3002.1(d), 3002.3(a)), failed to ensure that preschool-age children with disabilities in the District are identified, located, and evaluated for the purposes of offering special education and related services.
D. SUBCLASS 3 IDEA AND DISTRICT LAW CLAIMS 1. Timely Eligibility Determinations Claim
254. As described above, the IDEA Child Find provision requires that “[a]ll children with disabilities residing in the State . . . who are in need of special education and related services, are identified, located, and evaluated . . . .” 20 U.S.C. § 1412(a)(3)(A); see also 5-E D.C.M.R. § 3002.1(d); 5-E D.C.M.R. § 3002.3(a).
255. Under the IDEA and its implementing regulations, jurisdictions must ensure that children receive an initial evaluation within 60 days of parental consent or within an alternative time frame specified by the state. 20 U.S.C. § 1414(a)(1)(C). District law extends that period to
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120 days, beginning “from the date that the student was referred for an evaluation or assessment.”
D.C. Code § 38-2561.02(a); see Parker v. Friendship Edison Pub. Charter Sch., 577 F. Supp. 2d
68, 74 (D.D.C. 2008)). After the evaluations are complete, the child must receive an eligibility
determination. 20 U.S.C. § 1414(b)(4); 34 C.F.R. § 300.306(a). Pursuant to District law, the
timeframe will be reduced “[b]eginning July 1, 2017, or upon funding, whichever occurs later.”
D.C. Code 38-2561.02(a)(2)(A); see infra para. 101.
256. The District applies the 120-day deadline to the eligibility determination. For
example, in reporting to OSEP with regard to compliance with the timely evaluation requirement,
the District reports the percentage of children who receive an eligibility determination within 120
days, stating, “The District of Columbia’s established timeline for evaluations is 120 days from
referral to eligibility determination.” OSSE FFY 2013 Part B SPP/APR, Pls.’ Ex. 242, at DL2015
92–93; see also Proddutur Dep. 76:11–20, July 2, 2014, Pls.’ Ex. 18 (“[Q]: What statistics does
the District prepare annually that relate to the timing of initial eligibility determinations? [A]:
Actually, that is what I was talking about, initial evaluation, which the District does not have a
separate timeline for eligibility determination and evaluation. It is one entity for eligibility
determination. And it is the only metric that we measure.”).9
9 Since the District has not tracked the timeliness of initial evaluations, separate from eligibility determinations, for the applicable period, plaintiffs have not had data regarding the timeliness of initial evaluations. Accordingly, in opposition to the District’s motion for summary judgment, on November 21, 2014, plaintiffs stated:
Despite the injunction, the District has reported that it has not been tracking the percentage of preschool aged children that receive timely evaluations. Accordingly, plaintiffs have no data related to this benchmark. However, Sean Compagnucci, the Executive Director of Early Stages, testified that, on average, it takes about 60 days after the referral date to have the first assessments (as opposed to the completion of all assessments). That is, it takes the District half of the 120-day period to even get the family in the door to have the child assessed for the first time. Mr. Compagnucci testified that, with more staff, that time period could be reduced. As addressed below, the District’s practice of delaying assessments contributes to its failure to provide timely eligibility determinations.
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257. This Court previously applied, and will again apply, the 120-day deadline to eligibility determinations. See Mem. Op. ¶¶ 116, 120, 123, ECF No. 294; Mem. Op. 2, 12, 19– 20, ECF No. 444.
258. The Court previously held that, through April 6, 2011, the District failed to provide timely eligibility determinations in violation of the IDEA and District law. See Mem. Op. 16–18, 24 ECF No. 198 (through 2007); Mem. Op. ¶¶ 120, 123 (through Apr. 6, 2011); Mem. Op. 11, 13–14, 19–20, 42 ECF No. 444 (through Apr. 6, 2011, post-remand).
2. Measurement 259. Until recently, the District’s regulations stated that a child “shall be referred, in writing, to an IEP team” and that “[a] referral, which shall state why it is thought that the child may have a disability may be made by” a parent, the child (if older than the children at issue here), a professional staff employee of the LEA, or a staff member of a public agency who has direct knowledge of the child. 5-E D.C.M.R. § 3004.1(a), (b) (former regulation). That regulation also stated: “If the child to be referred attends a D.C. public school or is enrolling in a D.C. public school at the time this referral is made, this referral shall be submitted by his or her parent to the building principal of his or her home school, on a form to be supplied to the parent by the home school at the time of the parent’s request.” 5-E D.C.M.R. § 3004.1(c). Additionally, “if the child to be referred does not attend a D.C. public school and the parent does not register the child to attend a D.C. public school at the time the referral is made, this referral shall be submitted by the
Mem. in Opp’n to Defs.’ Mot. for Summ. J. 18, ECF No. 422 (citations omitted). The Court then granted summary judgment for the District on plaintiff subclass 2’s claim related to timely evaluations for the period after April 6, 2011, stating that “plaintiffs concede that they ‘have no data related to this benchmark.’” Mem. Op. 36, ECF No. 444. See also Order, Nov. 3, 2015, ECF No. 491 (clarifying the record).
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parent to a site designated by the Superintendent on a form to be supplied to the parent by that site at the time of the parent’s request.” 5-E D.C.M.R. § 3004.1(d).
260. As discussed, the District does not consider referrals from non-parents to start the 120-day clock. See supra para. 104. This policy is misguided and contrary to the clear language of the IDEA. The District claims it initiated the policy “in response to negative feedback from parents who understandably resisted the creation of permanent special education records for their children without parental knowledge or consent.” Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 113 n.5. The District should of course keep parents completely informed of its activities, but this concern does not justify such a strained interpretation of the IDEA’s statutory language. It is critical that children receive services as soon as possible.
261. On October 2, 2015, the relevant regulation was re-written and now reads: (a) A child suspected of having a disability who may need special education and is
at least two years, eight months of age and less than twenty-two (22) years of age, shall be referred to an IEP team for an evaluation or assessment. (b) A referral for an evaluation or assessment for special education services may be oral or written. An LEA shall document any oral referral within three (3) business days of receipt. 5-E D.C.R.R. § 3004.1. 262. This regulation, which relates to the applicable state timeframe of 120 days from referral, comports with this Court’s 2011 decision requiring the clock to start at the time of a written or oral referral from a parent or non-parent. Mem. Op. ¶ 149(b), ECF No. 294 (“‘Date of referral’ is defined as the date on which defendants receive a written or oral request for assessment of a preschool child including the child’s name and age, the parent’s or guardian’s name, mailing address or telephone number, and the basis for referral.”). The regulation explicitly states that a referral can be written or oral and does not limit the source of a referral. 5-E D.C.M.R.
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§ 3004.1(b); see also D.C. Code § 38-2561.02(a)(3). Accordingly, the District must start the 120-
day time-period for an eligibility determination whenever the District receives a written or oral
request for assessment, from a parent or non- parent, of a preschool-age child.
263. Based on paragraphs 157–161 of the above findings of fact, the District should
have been applying a reasonable and fair parental delay policy, as described above. See supra
para. 233.
3. Conclusion
264. Based on paragraphs 99–119 and 162–165 of the above findings of fact, the Court
holds that, from April 7, 2011, to November 12, 2015 (the first day of the second trial), the District
has failed to ensure that preschool-age children with disabilities in the District receive an
eligibility determination within 120 days of referral, in violation of 20 U.S.C. § 1414(a)(1)(C),
20 U.S.C. § 1414(b)(4), 34 C.F.R. § 300.306(a), and D.C. Code § 38-2561.2(a).
E. SUBCLASS 4 IDEA CLAIM
1. Smooth and Effective Transition Claim
265. A state must have in effect policies and procedures to ensure that:
[c]hildren participating in early intervention programs assisted under [Part C], and who will participate in preschool programs assisted under [Part B], experience a smooth and effective transition to those preschool programs in a manner consistent with section 1437(a)(9) of [the IDEA]. By the third birthday of such a child, an individualized education program or . . . an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency . . . .
20 U.S.C. § 1412(a)(9); see also 34 C.F.R. §§ 300.124, 300.101(b).
266. As part of its annual application for Part C funding, a state must explain how:
(i) the families of such toddlers and children [exiting Part C] will be included in the transition plans . . . and (ii) the [Part C] lead agency . . . will (I) notify the local educational agency for the area in which such a child resides that the
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child will shortly reach the age of eligibility for preschool services . . . ; [and] (II) . . . convene a conference among the [Part C] lead agency, the family, and the local educational agency not less than 90 days (and at the discretion of all such parties, not more than 9 months) before the child is eligible for the preschool services, to discuss any such services that the child may receive . . . . 20 U.S.C. § 1437(a)(9). 267. The Court has previously held that the District failed to comply with its obligation to ensure a smooth and effective transition for disabled children from Part C to Part B, in violation of the IDEA. Mem. Op. 20, ECF No. 198 (through 2007); Mem. Op. ¶ 126, ECF No. 294 (through Apr. 6, 2011); Mem. Op. 12–13, 19–20, 42, ECF No. 444 (through Apr. 6, 2011, post-remand).
2. Measurement 268. An IEP is not implemented until all special education and related services commence. See supra paras. 123–25. The Court previously concluded that “all services must commence for a transition to be smooth and effective.” Mem. Op. 39, ECF No. 444. Otherwise said, the District must be prepared to provide all services by the child’s third birthday. Of course, the District need not provide those services if, for example, the third birthday falls on a Sunday or the child is ill on his or her third birthday. 269. Based on paragraphs 120–142 and 162–165 of the above findings of fact, and the Court’s prior orders, 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 (that is, all special education and related services in the child’s IEP must commence by the child’s third birthday); and (4) Part B personnel are involved in the transition process. Mem. Op. 25, ECF No. 389; Mem. Op. 39, ECF No. 444.
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270. Based on paragraphs 157 to 161 of the above findings of fact, the District should have been applying a reasonable and fair parental delay policy. See supra para. 233. Also, the District should have been recording and tracking when children first receive each service required pursuant to an IEP. See supra para. 127.
3. Conclusion 271. Based on paragraphs 120–142, 147–152, and 162–165, of the above findings of fact, the Court holds that the District failed to have in effect policies and procedures to ensure that children receive a smooth and effective transition from Part C to Part B services, in violation of 20 U.S.C. § 1412(a)(9), 34 C.F.R. § 300.124, and 34 C.F.R. § 300.101(b). F. REHABILITATION ACT CLAIMS 272. Section 504 of the Rehabilitation Act states 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). Section 504 further states that, “[f]or the purposes of this section, the term ‘program or activity’ means all of the operations of . . . a local educational agency . . . or other school system.” 29 U.S.C. § 794(b)(2)(B). 273. The implementing regulations for section 504 state that: “[a] recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. § 104.33(a). 274. The Court previously held that defendants may be liable under section 504 for violations of IDEA, if defendants show either “bad faith or gross misjudgment” in failing to
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comply with their legal obligations. Mem. Op. 4, ECF No. 55. Specifically, defendants are required to “exercise[] professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals.” Id. (citation omitted).
275. The Court previously found that “at least through and including the year 2007, defendants knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations, in violation of § 504 of the Rehabilitation Act, 29 U.S.C.§ 794(a).” Mem. Op. 23, ECF No. 198. Indeed, “there [was] no genuine dispute that defendants knew, based on communications with OSEP, that they were not in compliance with their legal obligations, yet they failed to change their actions.” Id. In short, “defendants’ failures were a departure from accepted educational practices throughout the country,” and were sufficient to demonstrate “bad faith or gross misjudgment.” Mem. Op. 23, ECF No. 198.
276. Likewise, the Court previously held that, from 2008 to April 6, 2011, “the District of Columbia’s special education policies were a gross departure from accepted educational practices throughout the country,” and that “the District of Columbia knew that their actions were legally insufficient, yet failed to bring themselves into compliance with their legal obligations.” Mem. Op. ¶¶ 131–33, ECF No. 294. For this period as well, “defendants 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 under IDEA, in violation of 29 U.S.C. § 794(a) of the Rehabilitation Act.” Id. After remand, the Court dismissed plaintiffs’ Rehabilitation Act claims for the period after March 22, 2010. Mem. Op. 42–43, ECF No. 444.
277. As discussed in the Court’s Memorandum Opinion issued on this date and referenced in paragraph 180, plaintiffs’ pre-2010 Rehabilitation Act claims are not moot—even
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though the District’s actions that gave rise to the harm are no longer ongoing—because the voluntary cessation exception to the mootness doctrine applies. The Court therefore has jurisdiction to reach the merits of these claims, and finds that each plaintiff subclass prevails.
278. Subclass 1. Based on paragraphs 175–199 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its FAPE and Child Find obligations. Its policies, procedures, and practices were a gross departure from accepted educational practices throughout the country, it knew that its actions were legally insufficient, and it knowingly failed to provide special education and related services to thousands of preschool-age children.
279. Subclass 2. Based on paragraphs 175–182 and 200–204 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide timely initial evaluations for special education and related services. Its policies, procedures, and practices were a gross departure from accepted educational practices, it knew that its actions were legally insufficient, and it knowingly failed to provide timely initial evaluations to over one thousand children.
280. Subclass 3. Based on paragraphs 175–182 and 205–207 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide timely eligibility determinations for special education and related services. Its policies, procedures, and practices were a gross departure from accepted educational practices,
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it knew that its actions were legally insufficient, and it knowingly failed to provide timely eligibility determinations to over one thousand children.
281. Subclass 4. Based on paragraphs 175–182 and 208–215 of the above findings of fact, the Court holds that, until March 22, 2010, the District violated 29 U.S.C. § 794(a) of the Rehabilitation Act, because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide smooth and effective transitions from Part C to Part B services. Its policies, procedures, and practices were a gross departure from accepted educational practices, it knew that its actions were legally insufficient, and it knowingly failed to provide smooth and effective transitions to many hundreds of children.
G. ENTITLEMENT TO DECLARATORY RELIEF 282. Declaratory relief is warranted when “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality . . . .” Md. Casualty Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941); see also Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1073 (D.C. Cir. 1998). 283. The Court previously stated the following: [T]he Court holds that, from 2008 to April 6, 2011 (the first day of trial), there has been a substantial controversy of sufficient immediacy and reality due to defendants’ failure to identify, locate, evaluate, and offer plaintiffs a free appropriate public education and failure to ensure a smooth and effective transition from Part C to Part B for eligible preschool-age children in the District of Columbia.
Mem. Op. ¶ 135, ECF No. 294. 284. The Court then issued a declaratory judgment that the District violated the IDEA,
District law, and the Rehabilitation Act. Id. at ¶¶ 136–37. 285. Based on the above findings of fact and conclusions of law, the Court again holds
there has been a substantial controversy of sufficient immediacy and reality to issue a declaratory
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judgment. See also accompanying Mem. Op. issued on this date, at 24–28. The Court therefore
will issue a declaratory judgment that extends the holdings of its June 10, 2015 Memorandum
Opinion, through November 12, 2015 (the first day of the second trial), and declares that the
District violated the IDEA and District law by failing and continuing to fail to ensure that:
(a) All children between the ages of three and five, inclusive, who reside in the District, including children who are homeless or are wards of the District, who are in need of special education and related services, are identified for the purpose of offering special education services, are provided with a FAPE, and that a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services, in violation of 20 U.S.C. § 1412(a)(3)(A) and 5-E D.C.M.R. 3002.1(d), 3002.3(a) (Child Find), and 20 U.S.C. § 1412(a)(1)(A) and 5- E D.C.M.R. 3001.1, 3002.1(a), (e) (FAPE).
(b) All children between the ages of three and five, who reside in the District, including children who are homeless or are wards of the District, receive an eligibility determination within 120 days of referral, in violation of 20 U.S.C. § 1414(a)(1)(C), 20 U.S.C. 1414(b)(4), 34 C.F.R. § 300.306(a), and D.C. Code 382561.2(a); and
(c) All children who receive Part C early intervention services and are eligible for and choose to receive Part B services receive a smooth and effective transition to Part B services by their third birthdays, in violation of 20 U.S.C. § 1412(a)(9), 34 C.F.R. § 300.124, and 34 C.F.R. § 300.101(b).
H. ENTITLEMENT TO INJUNCTIVE RELIEF
286. A plaintiff seeking a permanent injunction must demonstrate that “(1) that it has
suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would
not be disserved by a permanent injunction.” Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139, 156–57 (2010).
287. First, as described above, the Court has again found the District liable for violating
the IDEA, its implementing regulations, and District law. The Court again finds that these
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violations result in irreparable injury to all eligible children between the ages of three and five years old, inclusive, who reside in the District, including children who are homeless or are wards of the District, and whom the District did not identify, locate, evaluate, or offer special education and related services to, or for whom the District did not timely issue eligibility determinations or smooth and effective transitions from Part C to Part B services. Without access to and timely receipt of special education and related services, preschool-age children in the District suffer substantial harm by being denied educational opportunities that are essential to their development.
288. Second, there are no adequate existing remedies. The District argues that plaintiffs have not shown a systemic violation that could justify injunctive relief and that, if any individual children’s rights were violated, “the remedy for those issues is to file a due process complaint and follow the administrative remedy procedures set out in the IDEA itself.” Trial Tr., Nov. 16, 2015, 77:3–11. However, since the violations described above affect at least hundreds of children annually, see supra paras. 83–84, 111–16, 140, they are appropriately addressed through injunctive relief. Moreover, administrative relief would have little if any value to a child that is not identified. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 114 (2d Cir. 2004) (describing claims of systemic IDEA violations that could not be remedied through the administrative hearing process); Cordero by Bates v. Pa. Dept. of Educ., 795 F. Supp. 1352, 1362–63 (M.D. Pa. 1992) (ruling that an injunction was appropriate to address systemic flaws).
289. Third, the balance of hardships strongly supports injunctive relief. An injunction requiring the District to do nothing more than comply with its legal obligations cannot, by definition, harm it. See Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986). Indeed, the District contends that it has already complied with the vast majority of the programmatic
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requirements below. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶¶ 71–83 (detailing the ways in which the District has “implemented each of the recommended policy and procedural changed specified in the Court’s 2011 Order”); Trial Tr., Freund Test., Nov. 16, 2015, 51:16–23, id. at 75:2–76:21 (referencing District’s counsel); see also 2015 Freund Direct ¶ 10.
290. Fourth, the Court again finds that the public interest will be served by compelling the District to provide special education and related services, and access thereto, in accordance with applicable law. 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 that] the rights of children with disabilities . . . are protected.” 20 U.S.C. § 1400(d)(1). In the words of the Court of Appeals for the Seventh Circuit: “We . . . fail to see how enforcing a statute designed to promote the public welfare disserves the public.” Haskins, 794 F.2d at 1277; see also Massey v. District of Columbia, 400 F. Supp. 2d 66, 76 (D.D.C. 2005) (“Prior decisions by this Court have made clear that the relevant public interest is that of the students. The public interest lies in the proper enforcement of . . . the IDEA.” (citation omitted)); Petties v. District of Columbia, 238 F. Supp. 2d 114, 125 (D.D.C. 2002). Therefore, plaintiffs satisfy the four-part test.
291. The District contends that its system is improved. Its witnesses appear to be committed to making continued improvements; however, despite the recent efforts of its staff, non-compliance persists, as OSEP determined the District “needs intervention” for the ninth consecutive year. As such, the Court cannot find “clear proof of an intent to permanently alter or abandon [its] ongoing failure to provide special education and related services to preschool-age children.” Mem. Op. ¶ 141, ECF No. 294. Even taking into account its recent improvement, the District has not yet satisfied federal and District law.
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292. As the District has yet to attain a period of sustained compliance, this Court has
concerns about the long-term stability of the District’s programs. Over ten years have passed
since this lawsuit was filed (many more since OSEP began identifying the District’s problems),
and many hundreds of children are still not receiving or timely receiving their special education
and related services. In addition:
 There was a nearly two- year decline in the District’s enrollment percentage, see supra para. 85, which the District did not appear to be aware of or concerned about. See Maisterra Dep. 357:4–359:21, July 2, 2014, Pls.’ Ex. 18 ([Q]: Well, the percentage has been falling for nearly the last year, hasn’t it? [A] I don’t believe so. . . “);
 Based on the data reported to OSEP, which is also falling, the District is serving 6.19% of its preschool-age population, which is essentially equal to the national average, even though, based on its risk factors, it should be serving many more children. See supra paras. 96–98;
 Prior to the previous trial, the District set a goal to reduce the timeline for eligibility determinations to 60 days but, by 2014, Mr. Compagnucci had not considered what would be necessary to do that and the District still brings large numbers of children in for their first assessment after 60 days have elapsed. See supra para. 117; Compagnucci Dep. 69:4-7, June 3, 2014, Pls.’ Ex. 16 (“For the last year, the average amount of time between a referral and when the family came into the center was 60–right around 60 days.”); Family Care Manual, Pls.’ Ex. 72, at 17 (“The Early Stages internal goal is for each assessment to be scheduled within 10 days of the initial referral. At this time, given the high volume of referrals to the center, our more realistic goal is to schedule an evaluation within 60 days of referral.”);
 There are material inconsistencies in the District’s documents and practice: inconsistency between the District’s use of annual census estimates for this case and elsewhere, see supra paras. 94–95, and the District’s documents and representatives state that services should begin by the third birthday but it argues that related services do not need to do so. See supra paras. 126, 128, 173; and
 As of the most recent assessments, OSEP continued to find OSSE noncompliant, and OSSE continued to find DCPS noncompliant. See supra paras. 166–71.
293. For all of these reasons, the Court permanently enjoins the District from further
violations of IDEA and District law, and directs the following corrective actions. These injunctive
requirements are similar to the requirements that issued in 2011.
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I. NUMERICAL INJUNCTIVE REQUIREMENTS 1. Subclass 1
294. The District shall ensure that at least 8.5% of children between the ages of three and five years old, inclusive (hereafter, “preschool children”), who reside in or are wards of the District, are enrolled in special education and related services under Part B or extended Part C services.
295. Until 8.5% is reached, the District shall increase the percentage of preschool children in the District enrolled in Part B or extended Part C services by 0.5% in the first full year, starting on the first of the next month after the date of this Order, and an additional 0.5% in each subsequent year.
296. A child shall be considered “enrolled” on the date that he or she began receiving all of the special education and related services identified in his or her IEP or, if receiving extended Part C services, all of the services identified in his or her IFSP, including the required educational component. See supra para. 250. The District shall record and track when children first receive each service (including special education and related services) required pursuant to an IEP or extended IFSP. See id.
297. The District’s enrollment percentage shall be calculated by dividing the number of preschool children enrolled by the number of preschool children in the District, as reported in the most recent annual census estimate prepared by the U.S. Census Bureau’s Population Estimates Program, except in the years for which the decennial census results are issued, in which case the enrollment percentage should be calculated by dividing the number of preschool children enrolled by the decennial census results. See supra para. 251.
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2. Subclass 3 298. The District shall ensure that at least 95% of all preschool children referred for Part B services receive a timely eligibility determination. 299. Until 95% is reached, the District shall increase the percentage of preschool children referred for Part B services who receive a timely eligibility determination by 10% in the first full year, starting on the first of the next month after the date of this Order, and an additional 5% in each subsequent year. 300. An eligibility determination shall be considered timely if it is completed within the period then-prescribed by federal and local law. According to District law that is currently applicable, the District has 120 days from the date of referral to make an eligibility determination. 301. “Date of referral” is defined as the date on which the District receives a written or oral request for assessment of a preschool child. That referral may be made by a parent or a nonparent such as a pediatrician or an LEA employee. See supra para. 262. 302. The District shall revise its parental delay policy so that it uses common sense and fairness to determine when any delay should be attributed to the LEA and when any delay should be attributed to the parent, consistent with 34 C.F.R. § 300.301(d)(1) (“The timeframe described in paragraph (c)(1) of this section does not apply to a public agency if—(1) The parent of a child repeatedly fails or refuses to produce the child for the evaluation.”). For example, the parental delay rules shall not allow attempts at parent contact that are clearly ineffective, such as repeat calls to a disconnected telephone number, to count towards meeting the minimum number of attempts at contact. The revised rules shall account for both delays by the LEA in attempting to contact the parent and in parental responsiveness, all of which should be documented. See supra paras. 157–61, 233, 263.
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3. Subclass 4 303. The District shall ensure that at least 95% of all Part C graduates that are found eligible for Part B receive a smooth and effective transition by their third birthdays. 304. Until 95% is reached, the District shall increase the percentage of smooth and effective transitions by 10% in the first full year, starting on the first of the month following the date of this Order, and an additional 5% in each subsequent year. 305. 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 the services that are to be provided and 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 (that is, all special education and related services in the child’s IEP must commence by the child’s third birthday); and (4) Part B personnel are involved in the transition process. See supra para. 269. 306. Accordingly, the District’s policy and goal shall be to provide all special education and related services on the child’s third birthday. However, to avoid dispute regarding delays caused by weekends or holidays, and to address the District’s concerns regarding the practical difficulties in commencing related services by the child’s third birthday, the District may report that there was no disruption in services as long as (1) all of the child’s special education services begin on the child’s third birthday or, if that is a weekend or holiday, on the first school day after the child’s third birthday (which, in the case of a child whose birthday falls during the summer and qualifies for ESY services, will be ESY services), and (2) all related services should begin within 14 days of the child’s third birthday (unless that period is within the summer and the child does not qualify for related services as part of his or her ESY services, in which case within 14
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days of the first day of school after the summer). See supra paras. 128–36. The District shall

record and track when children first receive each service (including special education and related

services) required pursuant to an IEP. See supra para. 270.

307. The District shall revise its parental delay policy as described above. See supra

paras. 270, 302.

J. PROGRAMMATIC REQUIREMENTS

308. The Court issued the programmatic requirements described in this paragraph

following trial in 2011 based upon the facts that were found at that time. Mem. Op. ¶¶ 151–65,

ECF No. 294; Order 323. The District shall satisfy, or continue to satisfy or exceed, the following

programmatic requirements. See 2015 Dunst Direct ¶ 166.

a. The District shall maintain and regularly update a list of primary referral

sources, including physicians, hospitals, and other health providers; day care centers, child care

centers, and early childhood programs; District departments and agencies; community and civic

organizations; and advocacy organizations. The District shall also develop a system to track

frequency of contacts with the referral sources to ensure that outreach occurs on a regular basis.

b.

The District shall develop and publish printed materials targeted to

parents and guardians that inform them of the preschool special education and related services

available from DCPS, the benefits and cost-free nature of these services, and how to obtain the

services. These materials shall be written at an appropriate reading level and be translated into

the primary languages spoken in the District. These materials shall be distributed to all primary

referral sources (e.g., medical professionals and child care staff), public and public charter

schools, public libraries, Income Maintenance Administration Service Centers, public recreation

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facilities, and other locations designed to reach as many parents or guardians of preschool

children who may be eligible for special education and related services as possible.

c.

The District shall develop, publish, and distribute tailored printed

materials targeted at primary referral sources to inform them of the preschool special education

and related services available from DCPS, the benefits and cost-free nature of these services, and

how to make a referral. These materials shall be used in conjunction with regular contacts with

primary referral sources to increase the usefulness of the materials.

d.

The District shall ensure that Early Stages outreach staff (e.g., the Child

Find Field Coordinators) contact primary referral sources or a staff member in the primary

referral source’s office who are instrumental in making referrals at least once a month until

a referral relationship is established and then every three months thereafter. The initial

meeting shall be face-to-face whenever possible when pursuing referrals from new referral

sources and then less frequently thereafter, using the method of contact preferred by the referral

sources (e.g., e-mail, texting, or telephone calls).

e.

The District shall accept both oral and written referrals at the start of

the eligibility determination process, make multiple attempts using different forms of

communication (e.g., telephone, postal mail, and e-mail) to contact the parent or guardian of

a referred child, and, upon obtaining consent of the parent or guardian, provide feedback to

the referral source regarding the outcome of the referral in a timely manner.

f.

The District shall assign each family served by Early Stages a single staff

member to act as its “case manager” throughout the screening, 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.

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g.

The District shall maintain a central location that: accepts formal and

informal referrals; conducts initial meetings, screenings, assessments, eligibility determinations,

IEP development, and offers of placement; and permits parents to register their child with DCPS.

h.

The District shall regularly assess the need for and, as necessary, open

additional satellite sites to perform the same functions in other wards or use a mobile evaluation

unit that is able to perform these functions at multiple locations throughout the District as more

children are located who may be in need of preschool special education.

i.

The District shall conduct regular screenings of preschool-age children

in each ward of the District, and especially in wards in which children experience multiple

risk factors.

j.

The District shall use existing data (e.g., medical records and reports

of prior assessments) at the time of referrals to the extent possible, especially for children from

Part C to Part B services, to eliminate unnecessary and duplicative screenings and assessments

for eligibility determination purposes.

k.

The District 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

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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.

l.

The District shall maintain a reliable data-sharing system between Part

C and Part B to ensure that Early Stages receives an ongoing monthly report of all children

who will be aging out of Part C within the following six months in order to ensure timely

transition meetings.

m. The District shall maintain a reliable database system for tracking

children through the Child Find process: from referral to eligibility determination and, if eligible,

IEP development, placement, and provision of identified services.

n.

The District shall maintain a reliable system for tracking the number and

type of placements available for preschool special education and related services throughout the

year and expanding the number and types of placement as needed.

309. The District shall also satisfy the following programmatic requirements:

a. The District shall develop and apply consistent operational definitions for

each of the numeric benchmarks.

b. The District shall understand and ensure that its staff understand the

purpose of the benchmarks and the IDEA requirements so that it can

comply with them.

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c. The District shall improve its data collection policies so that reporting can be accurate.
d. The District shall collect the necessary data to indicate when all services begin, including special education and related services.
See 2015 Dunst Direct ¶ 166. K. MODIFICATION OF THE INJUNCTION 310. The numerical requirements for the percentage of preschool children enrolled in
Part B set forth in paragraphs 294–295 above may only be modified by order of the Court upon a showing that 8.5% does not accurately reflect the number of preschool children who reside in the District, including children who are homeless or are wards of the District, that the District should expect to enroll through an effective Child Find system.
311. The programmatic requirements set forth in paragraphs 308–309 above may be modified by order of the Court. In order to obtain modification by order of the Court, the District must show that another action, to be substituted for the requirement that the District wishes to modify, would be at least as effective.
L. REPORTING 312. Every year, the District shall provide an annual report to plaintiffs and the Court regarding its compliance with the numerical requirements set forth in paragraphs 294–307 above. With regard to the enrollment percentage, the District shall provide the percentage for each month of the prior year, the numerator and denominator for each of those months, and the monthly spreadsheets from which those results are calculated, with any child-identifying information redacted. With regard to the eligibility determination and transition statistics, the
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District shall provide the data over that year and the District’s spreadsheets which show the calculations that yielded those statistics, with any child identifying information redacted.
313. Every six months, the District shall provide reports to plaintiffs and the Court regarding their compliance with the programmatic requirements set forth in paragraphs 308 and 309 over the prior six months.
314. For purposes of these reporting requirements, and the termination provisions below, months and years shall be calculated as follows: the first month and year shall start on the first of the next month following the date of the Court’s order and subsequent months and years shall start on the anniversary of the first month following the date of the Court’s Order. Reports shall be filed within 30 days after the expiration of the period to which the report relates.
M. TERMINATION OF THE INJUNCTION 315. This order shall remain in effect until the District has demonstrated sustained compliance with the numerical requirements set forth in paragraphs 294–307 above (8.5% of preschool children enrolled in special education and related services, 95% of preschool children receive timely eligibility determinations, and 95% of children receive smooth and effective transitions). The period of sustained compliance shall begin after the District, during a single year (“the baseline year”), meets or exceeds all three numerical requirements. Following the baseline year, the District may show sustained compliance:
a. In two years if, in the year following the baseline year (Year 1), the District increases the percentage of preschool children enrolled in Part B to at least 9.5% and meets or exceeds the other two numerical requirements and, in the subsequent year (Year 2), the District increases the percentage of preschool children enrolled in Part B to at least 10.5% and meets or exceeds the other two numerical requirements; or
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b. In three years if, in the three years immediately following the baseline year (Years 1, 2, and 3), the District meets or exceeds all three numerical requirements.
316. If the District fails to meet any of the numerical requirements in Years 1, 2, or 3, the District must establish a new baseline year of compliance before being able to show sustained compliance.
317. The programmatic requirements set forth in paragraphs 308–309 above shall not terminate until the numerical requirements set forth in paragraphs 294–307 above are satisfied.
N. ATTORNEYS’ FEES AND EXPENSES 318. Plaintiffs have prevailed on both IDEA and Rehabilitation Act claims. Pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I) (IDEA) and 20 U.S.C. § 794a(b) (Rehabilitation Act), the District shall pay plaintiffs’ reasonable attorneys’ fees and related nontaxable expenses associated with litigating this suit. 319. Pursuant to Federal Rule of Civil Procedure 54(d)(2), plaintiffs’ claim for attorneys’ fees and related nontaxable expenses must be made by a motion and submitted to this Court no later than 14 days, herein, or in accordance with a timeframe set in a separate court order. IV. CONCLUSION For the reasons stated above, the Court finds the District liable for violating the IDEA, District law, and the Rehabilitation Act, and that plaintiffs are entitled to the above-specified declaratory and injunctive relief. Unlike in 2011, the plaintiffs of each subclass are bound together by “a single or uniform policy or practice.” DL v. District of Columbia, 713 F.3d 120, 127 (D.C. Cir. 2013). As discussed, the District has separately and specifically failed to (1) identify substantial numbers of children who are in need of special education and related
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services, (2) timely evaluate children for special education and related services, 10 (3) timely issue eligibility determinations for special education and related services, and (4) provide smooth and effective transitions for children from Part C to Part B services.
The Court acknowledges the good faith efforts and reforms the District has undertaken to come into compliance with IDEA’s requirements to identify disabled children, timely evaluate them, perform eligibility determinations, and provide smooth and effective transitions from Part C to Part B. Even the best of intentions, however, will not bring a state or jurisdiction into compliance with the IDEA’s affirmative obligations. Indeed, compliance hinges on results, and the plaintiffs’ largely unrebutted, outcome-driven analysis shows that the District does not have effective policies in place to satisfy the specific legal obligations owed to each member of the three subclasses at issue.
The most that the defendants do to counter the plaintiffs evidence is argue that plaintiffs are applying the wrong set of assumptions, arguments which this Court has rejected.11 Moreover, defendants argue that the statistics they present are consistent with the “business rules” and are in line with the statistical and reporting criteria for the IDEA commonly used in other states. See Defs.’ Proposed Findings of Fact and Conclusions of Law ¶ 68 (“T]he District’s practices with regard to OSEP reporting are aligned with other jurisdictions, and [] in most cases, the District sets a higher bar.” (quotations omitted)). Even if that were true, at best, it would demonstrate that other states are jurisdictions may also be violating the IDEA. In light of plaintiffs’ child-specific, results-oriented evidence, this argument does nothing to shield the District from liability—it
10 This statement of course relates to the Court’s previous finding that subclass 2 prevailed on its claims for the period up to April 6, 2011. 11 See supra para. 260 (rejecting the defendants’ argument that the 120-day clock should not start when a non-parent submits a referral); see supra paras. 268–69 (rejecting the defendants’ argument that not all Part B services need to be delivered by the child’s third birthday.
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could only show that liability is perhaps more widespread in other states and jurisdictions than is commonly thought.
The District’s lack of effective Child Find and transition polices is particularly troubling in light of the intense scrutiny and seemingly constant admonishment it has received over the last decade. In 2011, this Court stated, “Defendant’s persistent failure to live up to their statutory obligations, a failure that works a severe and lasting harm on one of society’s most vulnerable populations—disabled preschool children—is deeply troubling to this Court.” Mem. Op. & Findings of Fact and Conclusions of Law 44–45, ECF No. 294. Moreover, as discussed, OSEP informed OSSE in 2015 that it “needs intervention in implementing the requirements of Part B of the IDEA” for the “ninth consecutive year,” which is the longest period in the country. Letter from OSEP to OSSE, June 30, 2015, Pls.’ Ex. 243, at 1, 4–8. Although OSEP’s long-running “needs intervention” determination does not deal exclusively with the statutory obligations at issue in this litigation, it contributes to the overarching narrative that the District requires strong, outside involvement to produce even minimally acceptable results. And critically, this litigation has been ongoing for more than ten years, providing the District with ample time and robust incentives to come into full compliance with the law. It is for these reasons that a structural injunction is necessary.
It is true that the Court’s present focus and analysis has shifted from the original 2011 trial. That trial focused mainly on the structure and design of the District’s policies and practices themselves. Importantly, the plaintiffs’ evidence at that time looked only to the plain results of the District’s self-reported statistics. In this trial, the Court continued to analyze and note the structural defects in the District’s official policies, but went one step further by examining the District’s self-reported data to evaluate the actual results that the District’s policies produced.
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 Case 1:05-cv-01437-RCL Document 564 Filed 04/27/17 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DL, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, v.
DISTRICT OF COLUMBIA, et al., Defendants.

)

)

)

)

Civil Action No. 05-1437 (RCL)

)

)

STATEMENT OF INTEREST OF THE UNITED STATES

An accurate matrix that is supported by reliable, unbiased evidence can simplify and

expedite fee litigation. See Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir.

1995). Yet in this District, and as evidenced by this case, it has become common for a fee

request to do just what the Supreme Court warned against in Hensley v. Eckerhart, 461 U.S. 424

(1983) – “result in a second major litigation.” Id. at 437. The dispute in these fee matrix cases

tends to focus on the appropriate inflation index, rather than on the reliability and absence of bias

in the base rates themselves. The current trend is also to include with each fee request

documents purporting to create a completely new market rate survey.

The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C.

§ 517, to provide the Court with its position on the Plaintiffs’ pending motion for attorney’s fees.

Although not a party, the United States has an independent interest in this suit given that it may

be held liable for reasonable attorney’s fees under statutory fee-shifting provisions akin to the

one at issue here. See Eley v. District of Columbia, 793 F.3d 97, 100 n.2 (D.C. Cir. 2015) (fee-

shifting statutes are generally to be interpreted alike). Moreover, the U.S. Attorney’s Office for

the District of Columbia (“USAO-DC”) has, since 1982, maintained fee matrices that it uses to

evaluate requests for payment under statutes that permit prevailing plaintiffs to recover

reasonable fees from the Government, and those matrices have also been used in other

jurisdictions and contexts. The United States has a compelling interest in facilitating proper

Case 1:05-cv-01437-RCL Document 564 Filed 04/27/17 Page 2 of 16
application of the matrices that the USAO-DC has developed, and in explaining, and thereby encouraging legally correct implementation of, reasonable hourly fee matrices in general, even where the United States is not party to a particular case, as decisions in such cases “may affect the interests of the United States government in future federal attorneys’ fees litigation.” Minute Order, Eley v. District of Columbia, No. 11-309 (BAH) (D.D.C. June 8, 2016) (denying motion to strike statement of interest of United States in local IDEA suit and “consider[ing] the views of the United States” offered pursuant to 28 U.S.C. § 517).
As shown below, the USAO-DC fee matrices, which have fairly and efficiently resolved rate disputes in this District for decades, are supported by reliable, unbiased evidence. By contrast, the evidence supporting the so-called LSI Matrix, under which Plaintiffs here seek fees, is neither reliable nor unbiased. Nor is Plaintiffs’ market survey.
BACKGROUND Although this case presents many issues on the determination of a “reasonable attorney’s fee,” the United States herein addresses only the question of which of the hourly rate matrices identified by the parties should be applied in complex federal litigation in this District. The first two were developed by the USAO-DC. The third was developed by a party seeking to recover fees. Each matrix has two distinct components: i) base hourly rates, and ii) an inflation index. 1. “Laffey Matrix”: USAO-DC developed the so-called Laffey Matrix to set hourly rates for the years between June 1, 1981, and May 31, 2015. The Laffey Matrix was based on the hourly rates allowed by this Court in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985). Those base rates were supported “with a barrage of data, including twenty-five attorney affidavits secured specifically for this litigation, information gleaned from
2

Case 1:05-cv-01437-RCL Document 564 Filed 04/27/17 Page 3 of 16
affidavits filed in other cases, and fee data reflected in previous judicial decisions.” Id. at 372. Because the original hourly rates used in the Laffey Matrix were based on the prevailing
market rates in the District of Columbia in 1981-82, they have been adjusted for later years to reflect the change in the costs of living for the Washington, D.C. area during the previous year, using the Consumer Price Index for All Urban Consumers (CPI-U) for Washington-Baltimore, DC-MD-VA-WV, as announced by the Bureau of Labor Statistics for May of each year. E.g., https://www.justice.gov/usao-dc/civil-division (Laffey Matrix 2014-15); see Eley, 793 F.3d at 101. “Due to its widespread acceptance,” this matrix has been called “‘the benchmark for reasonable fees in this Court.’” Miller v. Holzmann, 575 F. Supp. 2d 2, 18 n.29 (D.D.C. 2008) (Lamberth, J.) (quoting Pleasants v. Ridge, 424 F. Supp. 2d 67, 71 n.2 (D.D.C. 2006)); accord Univ. Legal Servs. Prot. & Advocacy, Inc. v. Knisley, 2006 WL 3623695, at *6 (D.D.C.) (Laffey Matrix “is the preferred method for calculating the awardable fee used in this Circuit”).
2. “USAO Matrix”: Using more current attorney’s fee rate information, the USAODC developed a new matrix for use after June 1, 2015.1 Called the “USAO Matrix,” it is distinct from the Laffey Matrix, because it is based on different data and employs a different inflation index. Specifically, its base hourly rates were calculated using statistically significant samples of average hourly rates for 2011 in survey data for the D.C. metropolitan area, as reported in ALM Legal Intelligence’s 2010 & 2011 Survey of Law Firm Economics (“SLFE”).2 The SLFE is a
1 The United States does not oppose application of the USAO Matrix methodology to earlier periods. Similarly, it does not oppose application of the Laffey Matrix methodology to periods after May 2015. The USAO-DC, however, has not issued a USAO Matrix for periods prior to June 1, 2015, nor is it issuing Laffey Matrices for periods after May 2015. See https://www.justice.gov/usao-dc/civil-division (USAO Matrix 2015-2017) at n.5. 2 ALM provides news and information for the legal market. http://www.almlegalintel.com/ AboutUs.aspx. Its “Survey of Law Firm Economics contains one of the most complete, accurate, and up-to-date sets of economic statistics and financial data available about law firms,” including
3

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statistical analysis of “hundreds of lawyers in the Washington, D.C. area” that incorporates specific safeguards to ensure its survey results are sufficiently reliable, including (among other things) thresholds for acceptable sample sizes. Decl. of L. Malowane ¶ 14 (ECF No. 554-11) (filed Feb. 11, 2017). The USAO Matrix employs the Producer Price Index-Office of Lawyers (PPI-OL) index to adjust for inflation rates for years after 2011. https://www.justice.gov/usaodc/civil-division (USAO Matrix 2015-2017). The USAO-DC anticipates periodically revising the USAO Matrix as more recent, reliable survey data becomes available. Id. n.8.
3. “LSI Matrix”: A third matrix was developed based on rates designed in 1989 by attorney Joseph Yablonski for his own use in Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) (en banc) (“SOCM”). Although Mr. Yablonski’s fee demand in SOCM was settled without any decision on the validity of his matrix, he offered it for use in a later case, Broderick v. Ruder, No. 86-1834 (D.D.C.), but it does not appear that the Court endorsed its use there, either. Years later, an expert witness in Salazar v. District of Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000), adjusted Mr. Yablonski’s base rates using the Legal Services Index (“LSI”) component of the Consumer Price Index. The resulting inflation-adjusted matrix was accepted by the Court (albeit without considering the validity of the base rates), and became known as the “Salazar” or “LSI” Matrix. This matrix normally results in fee awards 25-30% higher than the corresponding fee awards produced by the two matrices prepared by USAO-DC, a difference principally attributable to the wide disparity in base rates – not the marginal differences produced by the various inflation indices applied.
billing rates. http://www.lawcatalog.com/productdetail/16690/survey-of-law-firmeconomics?slreturn=20170426190020/. See also infra note 6.
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Courts and litigants have used varying terminology to refer to the above three matrices. Indeed, Plaintiffs mischaracterize the LSI matrix as an “update” of the Laffey Matrix, suggesting that the only difference between the Laffey Matrix and the LSI Matrix is the inflation index used over the years to update the hourly rates. Pl. Mem. at 6, 12, 14 n.16. Because the Yablonskiprovided base rates used in the LSI Matrix are wholly distinct from the base rates approved in Laffey, and in fact were intended to replace them, this Statement avoids the misleading term “LSI Laffey Matrix.”3 As a factual matter, there is nothing “Laffey” about the rates Plaintiffs seek. While “Laffey,” “USAO” and “LSI” all connote matrices purporting to establish prevailing market rates for legal services in the District of Columbia, that is where their similarities end.
ARGUMENT I. THE LSI MATRIX IS NOT BASED ON RELIABLE AND UNBIASED
EVIDENCE OF PREVAILING DISTRICT OF COLUMBIA MARKET RATES Plaintiffs request a fee award based on the LSI Matrix rate for 2016-2017. Assuming arguendo those are the relevant years,4 this Court should decide whether to apply the USAO Matrix, the LSI Matrix, or some other method to determine the appropriate hourly rates. To that end, it is useful to dispel a common misunderstanding surrounding the competing matrices. As noted, each matrix has two distinct and independent components: a set of market rates for a base period, and an index by which those rates are adjusted annually for changes in the cost of living. While the United States believes that the Laffey and USAO Matrices are superior to
3 Some courts refer to an “LSI adjusted Laffey Matrix,” which suggests that “Laffey” has come to represent a fee matrix the way “Kleenex” has come to mean a facial tissue. However, the term “Laffey Matrix” properly applies (only) to the matrix based on the base rates validated in Laffey v. Northwest Airlines, Inc., which was updated each year until 2015 by the USAO-DC. 4 Because in most contexts fees assessed against the United States cannot be awarded at current rates to account for delay, Library of Congress v. Shaw, 478 U.S. 310, 322 (1986); accord Pl. Mem. at 25 & n.27, the United States takes no position on the parties’ dispute as to whether current rates should be used to calculate the award against the District of Columbia in this suit.
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the LSI Matrix in both regards, the United States is more concerned with the base rates chosen for the respective periods, which alter the outcomes dramatically, than with the inflation indices used, which only incrementally affect outcomes. E.g., Decl. of M. Kavanaugh ¶ 25 (ECF No. 537-27) (filed Sept. 28, 2016) (Plaintiffs’ expert recognizing that the LSI and USAO Matrices use “nearly identical” inflation indices). Despite the base rates’ vast difference, the cases upon which Plaintiffs rely, in particular the Salazar decisions, focus on which inflation index to use to update the data from prior years, and do not at all examine the reliability of the base rates of the competing matrices. See, e.g., Salazar, 809 F.3d at 64; Salazar, 30 F. Supp. 3d at 51; Citizens for Responsibility and Ethics in Washington [“CREW”] v. Dep’t of Justice, 80 F. Supp. 3d 1, 3 (D.D.C. 2015); Makray v. Perez, 159 F. Supp. 3d 25, 54-55 (D.D.C. 2016).5 We do so below.
A. The Base Rates Supporting the LSI Matrix Are 28-Years Old The importance of contemporaneous data in establishing base rates cannot be overstated, as Plaintiffs’ own expert has previously confirmed. See Decl. of M. Kavanaugh ¶ 23 in CREW v. Dep’t of Justice, No. 11-0754 (D.D.C. filed Dec. 20, 2013) (ECF No. 55-11) (“the more contemporary the observation, the less possibility exists for forecasting error”; an hourly attorney’s fee matrix “is more likely to be a more accurate estimate of current rates [if] it utilizes the more recent observations”). However, he conspicuously omits that fundamental point from his declaration in this suit, despite his acknowledgment that the base rates that underlie his
5 The dicta Plaintiffs rely on (at 25 n.28) from a 1989 footnote in Trout v. Ball, 705 F. Supp. 705 (D.D.C. 1989), merely observes that the hourly rate sought by the special master in that case was lower than the hourly rate for litigators in Yablonski’s then newly-created matrix, which later evolved into the LSI Matrix. See id. at 709 n.10 & accompanying text. See also Eley, 999 F. Supp. 2d at 150-56 (comparing inflation indices without considering methodology or reliability of base rate surveys); Miller v. Holzmann, 575 F. Supp. 2d 2, 15-18 & n.29 (D.D.C. 2008) (Lamberth, J.) (comparing metropolitan D.C. Consumer Price Index (“CPI”) with legal services sub-component (“LSI”) of broader, national CPI) (compiling cases).
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preferred LSI Matrix are decades old. See Kavanaugh Decl. ¶ 3 (ECF No. 537-27). Indeed, the base rates in the Yablonski declaration are at least 28 years old. Relying on
any base rates for multiple decades presents a significant potential for forecasting error, particularly since an error in any one year will have a compounded effect, as each year’s data serves as the basis for calculating rates for the next year. Malowane Decl. ¶ 12. Because the USAO Matrix is based on data that is only 6 years old, there is substantially less risk that the forecasting errors inherent in an index will significantly impact a rate calculation for 2016-2017. See Clemente v. FBI, No. 08-1252 (BJR) (D.D.C. Mar. 24, 2017), slip op. at 9-10 (applying USAO Matrix, as it is “based on much more current data than the Salazar Matrix”). Moreover, the LSI Matrix has no mechanism to correct such forecasting errors: unlike the USAO Matrix, which is based on 2011 (i.e., much more recent) data that will be refreshed as new data becomes available, the LSI Matrix base rates have never changed, and there is no established means by which they ever will. This is important, for “[t]he more years [a] matrix continues without updating its original data source, the more previous years’ forecasting errors may be compounded.” Malowane Decl. ¶ 12.
B. The Base Rates Supporting the LSI Matrix Are Unreliable and Biased Unlike the rates in the Laffey Matrix, which are based on “a barrage of data” approved by the Court in Laffey, 572 F. Supp. at 372, the LSI Matrix rates are based on a six-page declaration by a single plaintiff’s lawyer. See Decl. of J. Yablonski (ECF No. 537-33) in Broderick v. Ruder, supra (D.D.C. filed June 2, 1989). As explained above, attorney Joseph Yablonski, who believed the Laffey rates were too “conservative,” id. ¶ 2, devised new ones to support his fee request in SOCM, in which he represented the plaintiffs. Id. ¶¶ 2, 3. However, as also noted supra, he concedes that the fee claim for which he designed his matrix was settled, not decided
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by a court. Id. ¶ 3. And he acknowledges that the rates he proposed were different from, and generated differently than, those embraced by this Court in Laffey. Id. ¶ 5. In fact, the LSI rates have a wholly separate genesis than those validated in Laffey and which underlie the Laffey Matrix to this day.
Accordingly, it is not surprising that, while Plaintiffs go to great lengths to discuss the genesis of the base rates underpinning the Laffey Matrix, they gloss over the rate survey on which the LSI Matrix is based. Indeed, their expert, Dr. Kavanaugh, does not even address the soundness of the methodology used. As Dr. Malowane notes (at ¶ 15), Mr. Yablonski provides only a very limited description of how his survey was conducted, which makes the “statistical reliability of the data . . . much more tenuous” than the data used in the USAO Matrix.6 See

6 Plaintiffs complain that the ALM/SLFE Study should be disregarded because Dr. Malowane (who purchased it, but did not know whether she could lawfully disseminate it under the copyright laws) wrongly refused to allow them access. Plaintiffs’ decision to decline to purchase that information from ALM, however, does not affect its reliability. Indeed, as the study can be purchased from ALM for $1799, see http://www.lawcatalog.com/productdetail/16690/survey-oflaw-firm-economics?slreturn=20170426190020/ – a pittance relative to the fee award they seek here – Plaintiffs’ complaints about access ring hollow.
In all events, the United States has since concluded that the rates themselves may be released based, inter alia, on a “fair use” exception. Accordingly, the 42nd Annual Survey of Law Firm Economics data from which the USAO Matrix rates derive are:
WASHINGTON, D.C. METRO AREA YEARS OF LEGAL
EXPERIENCE STANDARD HOURLY BILLING RATES
As of January 1, 2011

Years of Experience Number of Offices

Under 2 Years

13

2 or 3 Years

13

4 or 5 Years

13

6 or 7 Years

14

8 to 10 Years

12

11 to 15 Years

14

16 to 20 Years

15

21 to 30 Years

19

31 or More Years

19

Number of Lawyers

Average $

9

252

24

279

34

288

26

294

30

342

43

403

40

447

83

470

61

503

RATE

Lower Quartile $ Median $

235

240

255

280

210

275

248

295

283

315

325

380

374

450

400

459

423

460

Upper Quartile $ 278 323 360 328 428 470 524 520 600

Ninth Decile $ --
345 383 405 483 582 575 634 695

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CREW, 80 F. Supp. 3d at 5 (“average billing rates vary from survey to survey based on the composition of the participating firms and other factors”); Malowane Decl. ¶ 13 (explaining features of a reliable survey); id. ¶ 15 (noting deficiencies of Yablonski’s survey); accord In re Navy Chaplaincy, 738 F.3d 425, 429, 431 (D.C. Cir. 2013) (emphasizing importance of statistics “control[ling] for potential confounding factors”); Friends of the Boundary Waters Wilderness v. Bosworth, 437 F.3d 815, 826 (8th Cir. 2006) (“relevant factors” of reliable survey results include “[s]ample size, potential for bias, interviewing techniques, reliability of extrapolating data, and poor recollection”); cf. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“Daubert’s gatekeeping requirement . . . ensure[s] the reliability and relevancy of expert testimony”). Expert evidence “in the courtroom [must employ] the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” of economics. Kumho Tire, 526 U.S. at 152.
What Mr. Yablonski does explain is that his survey arose in part from talks with attorneys at seven law firms, Yablonlski Decl. ¶ 5, and in part from two National Law Journal hourly rate surveys. Id. ¶ 6. Yet he gives no indication of how the firms he consulted were chosen, how many attorneys he actually discussed fees with, whether he focused his attention on elite firms with correspondingly high billing rates, what effort he made to include firms with lower rates, or whether his rates were otherwise infected with selection bias, given that he developed them as a tool to secure fees for himself. See Malowane Decl. ¶ 15. The named attorneys with whom Mr. Yablonski “confirmed the accuracy of his survey” all appear to have been engaged at that time as plaintiff’s lawyers, and there is no indication that he consulted even one defense counsel or other person lacking a potential self-interest in the rates he proposed. See Yablonski Decl. ¶ 7.
Mr. Yablonski’s reliance on 1988 and 1989 National Law Journal (“NLJ”) rate surveys, see id. ¶ 6, is likewise suspect. As explained in Blackman v. District of Columbia, 677 F. Supp.
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2d 169 (D.D.C. 2010), which rejected a similar attempt to use an NLJ survey to support a fee matrix, “the National Law Journal survey . . . [was] not a scientific study[,] relied on selfreported rates, which firms may reduce in practice, and [] those rates came from the largest and most prestigious law firms, not from a representative sampling of firms.” Id. at 176.7 Accord Heller v. District of Columbia, 832 F. Supp. 2d 32, 45-46 (D.D.C. 2011) (rejecting 2009 NLJ survey). By contrast, the USAO Matrix is based on survey data more current and reliable than that used in any other fee matrix presented in this case. See Malowane Decl. ¶ 14 (describing methodology of ALM survey, which provides figures only “if there is sufficient data to assure its accuracy”); id. n.7 (detailing numbers of data points needed for statistics to be offered by ALM).
Moreover, the recent survey data upon which the District’s expert relies demonstrates that the USAO Matrix is a far better measure of the actual market than is the LSI Matrix. In particular, Dr. Malowane’s Declaration establishes that the base rates in the USAO Matrix are consistent with the top 10% of the national litigation billing rates for 2014 (as derived from the 42nd Annual Survey of Law Firm Economics).8 Id. ¶ 17 & Table 2. The LSI Matrix significantly exceeds this level. Id. For example, under the LSI Matrix, an attorney with 21 years’ experience would have a rate of $796, which represents an increase of approximately 25% over the top 10% of the national litigation billing rates for 2014, which is $568. Id. What this comparison shows is that, even though the USAO Matrix rates may be lower than the LSI rates, the USAO Matrix rates nevertheless are generous in providing top-decile compensation relative
7 Plaintiffs claim (at 28-29 n.32) that the rates sought in Blackman were based on the LSI Matrix and not an NLJ survey, but the decision confirms that the requestor “created its own matrix for its billing rates [and] support[ed] this calculation of rates with survey data from the National Law Journal for the District of Columbia and with declarations.” 677 F. Supp. 2d at 176. 8 Plaintiffs sometimes insist that fee information must be specific to the District of Columbia, Pl. Mem. at 19, but other times insist that, for complex federal litigation, Washington D.C. is a national market, not a local market. Id. at 12-13 n.15.
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to actual national market rates. Indeed, in CREW the Court relied in part on a similar analysis by Dr. Malowane to hold that the LSI Matrix rates were excessive. 142 F. Supp. 3d at 21. II. THE DATA COLLECTED BY PLAINTIFFS IS NEITHER RELIABLE NOR
UNBIASED Apparently recognizing the insufficiency of the underlying Yablonski data, Plaintiffs offer other data in an effort to demonstrate that the hourly rates produced by the USAO Matrix are “significantly below” average market rates for complex federal litigation in Washington, D.C., and thus should not be applied. A summary of the data Plaintiffs collected appears in a chart captioned “Comparison of LSI Matrix, USAO Matrix 2015-2017, USAO Laffey Matrix, and Washington, D.C. Market Rates Data for 2015-2016.” See Pl. Ex. 48. As explained below, while this data appears to reflect the hourly billing rates of 24 District of Columbia law firms for the past two years, the absence of critical information renders it impossible to determine whether those firms accurately represent the market, as opposed to a group hand-picked by Plaintiffs to prove their point. And while the data purports to be for complex federal litigation, no explanation is offered of what qualifies as sufficiently “complex.” In its brief (at 15-27), the District thoroughly addresses the methodological problems with Plaintiffs’ market analysis and we will not catalog them here. See also Malowane Decl. ¶ 16 (noting inter alia that Plaintiffs’ proffered sample sizes are so small that they would not have been deemed by the SLFE to be “statistically reliable,” thus no billing rates would have been offered based on such limited data). But to highlight some of the most serious flaws: a. Plaintiffs’ Data Reflect Only The Highest Billing Rates, Primarily from Fee Applications in Bankruptcy Cases. The data for 15 of the 24 firms are taken from Westlaw Legal Billing Reports (attached as Pl. Exs. 43-45; see footnotes to Ex. 47), and consist of bankruptcy fee applications submitted by firms that appear to be located (at least in part) in D.C.
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Aff. of B. Terris ¶ 88 (ECF No. 537-1). Yet bankruptcy cases (which have no opposing party or paying client to seek the customary discounts) have the highest billing rates of all litigation specialties. Malowane Decl. ¶¶ 19-20, 37 & Table 3. Accord Decl. of W. Christensen (ECF No. 554-12) ¶ 22; CREW, 142 F. Supp. 3d at 19 (“That attorneys litigating bankruptcy cases charged [a given rate] does not prove that this rate is in line with the prevailing rate for complex federal litigation, generally.”). Thus, much of the evidence Plaintiffs offer does not appear to accurately represent market rates for complex federal litigation outside the bankruptcy specialty submarket.
b. Plaintiffs use data from other States as evidence of the D.C. market. For example, one of the firms marked as “DC” is Pachulski Stang Ziehl & Jones LLP, which does not even have a D.C. office. http://www.pszjlaw.com/about.html. Apparently, it is included because the specific attorney named in the report happens to be admitted in D.C. (as well as Delaware), although he is listed as working exclusively in Delaware, http://www.pszjlaw.com/attorneysmichael-r-seidl.html, and the matter listed was litigated in, and the fee petition filed in, bankruptcy court in Delaware. See ECF No. 537-45 at 7. A Delaware firm’s application for a $675 hourly fee in a Delaware bankruptcy proceeding is not evidence of D.C. market rates.
c. The data excludes lower billing rates. For example, it excludes the rates for all practitioners with titles other than “partner” or “associate,” for no apparent reason and with no explanation. The District discusses (at 17) this systematic exclusion of more moderate rates.
d. The firms in Plaintiffs’ chart are mostly large firms. The Court properly has rejected rates that do not arise from “a representative sampling of firms.” Blackman, 677 F. Supp. 2d at 176; Heller, 832 F. Supp. 2d at 45 (rates charged by the largest law firms do not determine prevailing market rates for complex federal litigation in the District); Eley, 793 F.3d at 105 (rejecting view that “lawyers in the largest law firms automatically set the prevailing market
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rate”).9 As explained below, large national firms tend to have nominal billing rates at or near the top of the market, regardless of whether they actually recover such rates. See CREW, 142 F. Supp. 3d at 18; Heller, 832 F. Supp. 2d at 45; see also Christensen Decl. ¶ 13 (comparing a firm’s reported billing rate to the “rack rate” posted by a hotel that often is not recovered).
e. Plaintiffs’ Data Fail to Account for the Difference Between Claimed and Actual Billing Rates. None of the Plaintiffs’ declarations speaks to the amount of fees actually “received,” see Eley, 793 F.3d at 104; instead, they focus almost entirely on amounts billed or nominally charged. See D.C. Br. at 24 (listing affidavits); see also Georgetown Law Center, 2017 Report on the State of the Legal Market (Ex. 13 to D.C. Br.) at 6 (“Like ‘rack rates’ in hotels, standard rates in law firms have effectively become nominal rates that are arbitrarily set and are almost never paid by any significant client.”); cf. Christensen Decl. ¶¶ 13-23. Indeed, Dr. Malowane concludes (Decl. ¶¶ 42-45) that reliance on “billing” versus “actual” rates is not merely inappropriate, it is “misleading.” See also CREW, 80 F. Supp. 3d at 5 (noting that clients rarely pay standard billing rates for a host of reasons). Because these rates have little bearing on the amounts actually recovered, and merely represent the amounts that firms aspire to, Plaintiffs fail “to demonstrate that [their] suggested rates [are] appropriate.” Eley, 793 F.3d at 105 (plaintiffs bear the burden of demonstrating the reasonableness of their rates).
9 Plaintiffs attempt to characterize (and thereby discount) the holding in Heller as precluding small firms from receiving market rates. However, the point of Heller is not that a small or public interest firm should receive lower rates, only that such firms generally do – and that fact must be taken into account when determining the prevailing market rate. These are two discrete issues, and the reasons for the former are irrelevant to the latter. Compare CREW, 142 F. Supp. 3d at 18, 22 (evidence rebutted “proposition that rates are comparable across firms of all sizes such that the average rate at the biggest firms should be taken as the prevailing rate more generally”) with Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F. Supp. 2d 159, 175 (D.D.C. 2008) (Lamberth, J.), rev’d on other grounds, 610 F.3d 747 (D.C. Cir. 2010) (attorney who charges discounted rate for public-spirited reasons may receive fee award at market rates).
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f. Nominal, but seldom charged, billing rates from firms that principally rely on fee awards or contingencies are not reliable indicators of market rates. Of the nine firms identified in Plaintiffs’ Exhibit 47 that are included based on declarations (rather than Westlaw Legal Billing Reports), two have rates closer to the USAO Matrix than to the LSI Matrix. The others, however, rely on fee awards or contingencies for the bulk of their income. While those firms’ declarations assert instances in which counsel have charged the same rates as the LSI Matrix, they notably do not contend that such rates are a normal part of their firms’ income streams; in fact, they show the opposite. See National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1326 (D.C. Cir. 1982) (emphasizing that market rates cannot be based on what attorneys receive in a “single fortunate case”). The District’s examination of these declarations individually (at 23-24 of its brief) convincingly demonstrates this point.
g. Plaintiffs’ Data Fails to Account for the Common Practice of Discounting Rates. Plaintiffs’ independent “market data” also fails to account for the discounts and other measures that reduce a firm’s actual, realized fees to rates less than their nominal, declared hourly rates. According to a 2015 study, “21% to 30% of all law firm fees come from discounted rates, and [] for larger firms (defined as 250 or more lawyers), discounted fees represent 31 to 40% of total fees.” Malowane Decl. ¶ 44; see also Christensen Decl. ¶¶ 13-23. Even in CREW, where Judge Cooper awarded fees based on the LSI Matrix, the court imposed a percentage reduction to account in part for the fact that billing rates are frequently discounted by firms. 80 F. Supp. 3d at 5 (recognizing “the differences between reported rates and actual law firm billing realization”).
All of these factors reinforce the conclusion that Plaintiffs’ data is unreliable, selfserving, and overstates market rates. Not only have Plaintiffs thus not met their burden of proof, but the District has successfully demonstrated that the proposed rates are unreasonably high.
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III. THE COURT SHOULD NOT MAKE THE PERFECT THE ENEMY OF THE GOOD

While no fee matrix is “unassailable,” CREW, 142 F. Supp. 3d at 21, such matrices are an

accepted, practical “starting point,” Covington, 57 F.3d at 1109, for determining hourly rates to

satisfy the requirements of fee-shifting statutes. And, while the burden of proof to demonstrate a reasonable hourly rate falls on the fee requester, Eley, 793 F.3d at 100,10 the United States

nonetheless has demonstrated herein that the USAO Matrix is properly regarded as the

benchmark for hourly billing rates for complex federal litigation in this jurisdiction. It is

“adequate to attract competent counsel, [yet] does not produce windfalls to attorneys,” Perdue v.

Kenny A., 559 U.S. 542, 552 (2010); it reflects prevailing rates in the community for similar

services, Covington, 57 F.3d at 1109; and it is methodologically sound, unbiased, and avoids “a

second major litigation.” Hensley, 461 U.S. at 436-37. Both the LSI Matrix and Plaintiffs’

market analysis, by contrast, are biased and unreliable, contain unreasonably high rates, and

provoke further litigation to resolve fee claims.

CONCLUSION

For these reasons, the United States agrees with the District of Columbia that the USAO-

DC’s fee matrices, and not the LSI Matrix or Plaintiff’s own market survey, should determine

the hourly rates in this proceeding. Further, regardless of which inflation index is applied, the

reliable and unbiased base rates that underlie the USAO Matrix should serve as their foundation.

Dated: April 27, 2017

Respectfully submitted,
CHANNING D. PHILLIPS, D.C. Bar # 415793 United States Attorney for the District of Columbia
DANIEL F. VAN HORN, D.C. Bar # 924092 Chief, Civil Division
By: /s/ Peter C. Pfaffenroth

10 Indeed, correctly applying that burden here, Plaintiffs would be entitled even to the USAO Matrix rates only because the District of Columbia has conceded their application in this case.

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Case 1:05-cv-01437-RCL Document 564 Filed 04/27/17 Page 16 of 16 PETER C. PFAFFENROTH, D.C. Bar # 496637 Assistant United States Attorney 555 Fourth St., N.W. Washington, D.C. 20530 (202) 252-2513 peter.pfaffenroth@usdoj.gov Attorneys for the United States of America
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 Case 1:05-cv-01437-RCL Document 580 Filed 08/25/17 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DL, et al.,
Plaintiffs, v. DISTRICT OF COLUMBIA, et al.,
Defendants.

) ) ) ) ) ) ) Case No: 05-cv-1437-RCL ) ) ) ) ) )

MEMORANDUM OPINION

I. INTRODUCTION

This case comes before the Court on plaintiffs’ motion for attorneys’ fees, ECF No. 537.

Plaintiffs brought claims under the Individuals with Disabilities Education Act (“IDEA”), the

Rehabilitation Act, and District of Columbia law. After many years of litigation which included

class certification issues, summary judgment, trial, and appeals, this case is finally at its end.

Plaintiffs now seek $9,760,487.55 in attorneys’ fees and costs. For the reasons stated below, this

Court finds that plaintiffs are entitled to fees and costs, although not in this amount. It will grant

in part and deny in part plaintiffs’ motion, but will seek a revised calculation from plaintiffs before

ordering the District of Columbia to pay.

II. BACKGROUND

This case, originally filed in 2005, was brought by the parents of preschool age children

with various disabilities who tried to obtain special education services from the District of

Columbia Public Schools (“DCPS”), alleging violations of the Individuals with Disabilities

Education Act (“IDEA”), the Rehabilitation Act, and District of Columbia law, which require that

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the District offer a “free and appropriate public education” (“FAPE”) to disabled children. These laws require “states to develop a ‘practical method’ to track which children are receiving special education services and to ensure that all children ‘who are in need of special education and related services . . . are identified, located, and evaluated’ within a timeframe set by the state—120 days in this case.” DL v. D.C., 860 F.3d 713, 717 (D.C. Cir. 2017) (citing 20 U.S.C. § 1412(a)(3)(A); 20 U.S.C. § 1414(a)(1)(C)(i)(I); D.C. Code § 38-2561.02(a)(1)). States are additionally obligated “to provide a seamless transition when three-year-olds move from ‘early intervention’ programs (governed by IDEA Part C) to preschool (governed by IDEA Part B).” Id. (citing 20 U.S.C. §§ 1412(a)(9), 1435(a)(8)(A), 1437(a)(9); 34 C.F.R. § 303.209). These provisions are known as the “Child Find” duty.
Plaintiffs alleged numerous knowing, pervasive, and systemic failures to comply with the “Child Find” requirement. The procedural history of this case is set out in the many opinions from both this Court and the Court of Appeals. It was most recently summarized in DL v. D.C., 860 F.3d 713 (D.C. Cir. 2017), and need not be repeated in full here. It is sufficient to note that plaintiffs ultimately brought claims related to four subclasses:
(1) disabled three-to-five-year-olds whom the District failed to identify for the purpose of offering special education services; (2) disabled three-to-five-year-olds whom the District failed to give an initial evaluation within 120 days of being referred for special education services; (3) disabled three-to-five-year-olds whom the District failed to give an “eligibility determination”—i.e., a decision as to whether they qualify for IDEA services—within 120 days of being referred; and (4) all children who transitioned from early intervention to preschool programs, and whom the District denied a “smooth transition” by age three. DL, 860 F.3d at 719. In 2014, the Court found that “the District was liable for violating the IDEA and District law for the period up to April 6, 2011” for all four subclasses. DL v. D.C., 194 F. Supp. 3d 30, 37 (D.D.C. 2016). It ruled for defendants, however, “on (1) plaintiffs’ IDEA and District law claims related to the failure timely to evaluate children for special education and related services for the
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period from April 6, 2011 to the present [Subclass 2], and (2) all of plaintiffs’ Rehabilitation Act claims for the period from March 22, 2010 to the present.” Id. Then, at trial, plaintiffs alleged that the District violated the IDEA with respect to Subclasses 1, 3, and 4 from April 6, 2011 through the present, and that the District violated the Rehabilitation Act with respect to all four subclasses for the period up to March 22, 2010. Id. at 37–38. After trial, the Court found that the District had violated the IDEA with respect to Subclasses 1, 3, and 4 from April 6, 2011 through the first day of trial (November 12, 2015), and that it violated the Rehabilitation Act with respect to all four subclasses through March 22, 2010. Id. at 88–96. The breakdown of each party’s success is as follows:

Subclass 1 Subclass 2 Subclass 3 Subclass 4

IDEA Claims through April
6, 2011
Plaintiffs Plaintiffs Plaintiffs Plaintiffs

IDEA Claims from April 6, 2011 to present
Plaintiffs Defendants Plaintiffs Plaintiffs

Rehabilitation Act Claims
through March 22, 2010
Plaintiffs
Plaintiffs
Plaintiffs
Plaintiffs

Rehabilitation Act Claims
from March 22, 2010 to present
Defendants
Defendants
Defendants
Defendants

On May 18, 2016, this Court found that “[p]laintiffs have prevailed on both IDEA and Rehabilitation Act claims. Pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I) (IDEA) and 20 U.S.C. § 794a(b) (Rehabilitation Act), the District shall pay plaintiffs’ reasonable attorneys’ fees and related nontaxable expenses associated with litigating this suit.” May 18, 2016 Order ¶ 30, ECF No. 521. Plaintiffs now request fees for two periods of time: 1) through November 16, 2011 (Period 1); from November 17, 2011 to June 22, 2016 (Period 2). Plaintiffs originally requested fees and costs totaling $10,010,956, using the current rates set out in the LSI Matrix. After briefing, they now request $9,760,487.55 using LSI Matrix rates. The law firm of Terris, Pravlik & Millian, LLP (“TPM”), lead counsel in this case, requests fees totaling $8,962,597.98 and costs totaling

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$259,409.83. Professor Jeffrey S. Gutman, who oversaw a clinic at The George Washington University Law School in which students worked on this case, requests fees totaling $135,476.32. Co-counsel Margaret A. Kohn, who served as class counsel and the primary contact with the named plaintiffs, requests fees totaling $380,009.56 and costs totaling $1,727.61. Co-counsel Cyrus Mehri, who performed work related to class certification and settlement, requests fees totaling $21,266.25.
The District argues that the Court should award fees using the USAO Matrix, and should use historic (2012) rates with interest for Period 1, and current rates for Period 2. The District also argues that the requested fees should be reduced because plaintiffs billed an unreasonable number of hours for many tasks, because they improperly billed for matters in which they failed to prevail, and because they failed to exercise reasonable billing judgment. It also argues that fees for cocounsel should be reduced substantially or denied. Furthermore, it argues that plaintiffs’ costs are excessive and should be reduced significantly, and that expert fees are not reimbursable. Finally, the District argues that the IDEA’s statutory fee cap requires that the Court deny plaintiffs’ request unless and until plaintiffs demonstrate actual class membership. The United States has submitted a statement of interest pursuant to 28 U.S.C. § 517, and argues that the USAO Matrix is the appropriate fee matrix to use in this and other cases. III. LEGAL STANDARDS
A. Legal Framework for Determining Fee Awards This Court has recently had occasion to discuss the legal framework surrounding attorneys’ fees in IDEA cases, which often come before this District Court. The Court thus refers to its own opinion in Joaquin v. D.C., 210 F. Supp. 3d 64 (D.D.C. 2016), in which it summarized the analysis as follows:
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The IDEA provides that courts may award reasonable attorney’s fees to prevailing parties. 20 U.S.C. § 1415(i)(3)(B)(i). The fees must be “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” Id. § 1415(i)(3)(C). A three part analysis guides the assessment of whether a requested fee award is reasonable: “First, the court must determine the ‘number of hours reasonably expended in litigation.’ Second, it must set the ‘reasonable hourly rate.’ Finally, it must determine whether use of a multiplier is warranted.” Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (internal citations omitted). To determine a reasonable hourly rate, the court considers “(1) the attorney[’s] billing practices, (2) the attorney[’s] skill, experience, and reputation and (3) the prevailing market rates in the relevant community.” Id. (internal quotation marks omitted). Attorney’s fee litigation employs a burden-shifting scheme:
The fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates. Once an applicant meets this initial burden, a presumption applies that the number of hours billed and the hourly rates are reasonable. At that point, the burden shifts to the opposing party to provide specific contrary evidence tending to show that a lower rate would be appropriate.
Flood v. District of Columbia, No. CV 15–497 (BAH), 172 F.Supp.3d 197, 203, 2016 WL 1180159, at *3 (D.D.C. Mar. 25, 2016) (internal citations and quotation marks omitted).
210 F. Supp. 3d at 68. The Court will specifically address the standards for determining reasonable
hourly rates and the reasonableness of hours billed in Parts IV.B.1 and IV.C.1, infra.
B. Fee Caps
In certain circumstances, there is no need to conduct the aforementioned fee award
analysis. In 1999, Congress capped the fees payable by the District in IDEA cases. See Omnibus
Consolidated and Emergency Supplemental Appropriation Act of 1999, Pub. L. No. 105–277, §
130, 112 Stat. 2681 (1998). In 2003, Congress set a flat cap of $4,000 on attorneys’ fees for IDEA
actions. See Consolidated Appropriations Act of 2003, Pub. L. No. 108–7, § 144, 117 Stat. 11
(2003). In 2009, Congress passed the final rider relating to IDEA attorneys’ fees, stating:
Notwithstanding section 615(i)(3)(B) of the Individuals with Disabilities Education Act (20 U.S.C. § 1415(i)(3)(B)), none of the funds contained in this Act or in any other Act making appropriations for the government of the District of Columbia for fiscal year 2009 or any succeeding fiscal year may be made available—
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(1) to pay the fees of an attorney who represents a party in or defends an IDEA proceeding which was initiated prior to the date of the enactment of this Act in an amount in excess of $4,000 for that proceeding. Omnibus Appropriations Act, Pub. L. No. 111–8, § 814, 123 Stat. 524 (2009). The 2009 rider did not provide a fee cap for future cases. However, the D.C. Circuit found that “the ‘evident intent’ of the [2009] statute is to address individual IDEA proceedings, not class actions.” Blackman v. D.C., 633 F.3d 1088, 1092 (D.C. Cir. 2011). Thus, the cap does not preclude the Court from ordering defendants to pay and—more importantly—does not preclude the defendants from paying reasonable attorneys’ fees to the plaintiff classes, so long as the total amount paid by the defendants does not surpass the statutory fee cap multiplied by the total number of members of the plaintiff class. Id. (quoting and agreeing with the reasoning of the District Court) (“As it is undisputed that the classes number in the hundreds, if not thousands, the plain and unambiguous language of the statute would seem to make the district court's conclusion unassailable and compel us to affirm the fee award order.”). Thus, the fee cap prohibits fee awards in class actions that are greater than $4,000 multiplied by the number of class members. IV. ANALYSIS A. Fee Caps Because the applicability of fee caps would have an impact on the fee award in this case and would eliminate the necessity of conducting a lodestar analysis, the Court will address this issue first. The Court will discuss whether this entire case should be treated as an IDEA case or whether it should be treated as a Rehabilitation Act case, which has no fee cap requirements, and then will determine whether the caps apply in this case.
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1. IDEA vs. Rehabilitation Act The Court first determines that this case should be treated as an IDEA case for the purpose
of determining whether the fee caps are even relevant. Plaintiffs brought claims under both the
IDEA and the Rehabilitation Act, which have separate fee-shifting provisions. Compare 20 U.S.C.
§ 1415(i)(3)(B)(i) with 29 U.S.C. § 794a(b). The Rehabilitation Act, which prohibits
discrimination on the basis of disability in programs receiving federal funding, states in its
implementing regulations that “a recipient that operates a public elementary or secondary
education program or activity shall provide a free appropriate public education to each qualified
handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the
person’s handicap.” 34 C.F.R. § 104.33. In 2006, this Court set out the standard for Rehabilitation
Act claims in the IDEA context:
In order to state a claim under Section 504 of the Rehabilitation Act in IDEA cases, plaintiffs must show that “something more than a mere failure to provide the ‘free and appropriate education’ required by the [IDEA]’” has occurred. Walker v. District of Columbia, 157 F. Supp. 2d 11, 35 (D.D.C. 2001) (Friedman, J.)[.] Generally, plaintiffs who show either “bad faith or gross misjudgment” can prevail under Section 504 for IDEA violations. Id. Liability will not be imposed so long as the “state officials involved have exercised professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals.” Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982). DL v. DC, No. 05-1437, slip op. at 3–4 (D.D.C. Aug. 2, 2006) (ECF No. 55).
In 2010, this Court granted summary judgment in favor of plaintiffs with respect to their
Rehabilitation Act claims through 2007 after finding that the District failed to comply with the
IDEA and concluding that “defendants knew that their actions were legally insufficient, yet failed
to bring themselves into compliance with their legal obligations, in violation of § 504 of the
Rehabilitation Act,” which showed “bad faith or gross misjudgment.” DL v. D.C., 730 F. Supp.
2d 84, 100 (D.D.C. 2010). In 2011, this Court “extend[ed] the holding of its August 10, 2010
Memorandum Opinion, and declare[d] that defendants violated Section 504 of the Rehabilitation 7

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Act for the period January 1, 2008 to April 6, 2011 (the first day of the first 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.” DL v. D.C., 845 F. Supp. 2d 1, 24 (D.D.C. 2011) (internal citation omitted). After disputes regarding class certification, the plaintiffs were broken into the four aforementioned subclasses. This Court then concluded in 2016 that the District violated the Rehabilitation Act through March 22, 2010 with respect to Subclass 1 “because it demonstrated bad faith and gross misjudgment with regard to its FAPE and Child Find obligations;” that it violated the Rehabilitation Act with respect to Subclass 2 through March 22, 2010 “because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide timely initial evaluations for special education and related services;” that it violated the Rehabilitation Act with respect to Subclass 3 through March 22, 2010 “because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide timely eligibility determinations for special education and related services;” and that it violated the Rehabilitation Act with respect to Subclass 4 through March 22, 2010 “because it demonstrated bad faith and gross misjudgment with regard to its obligation to provide smooth and effective transitions from Part C to Part B services.” DL, 194 F. Supp. 3d at 96. All of the obligations mentioned are IDEA obligations.
Thus, based on the above, the Court concludes that this case is at its heart an IDEA case. It is about whether the District of Columbia violated the IDEA by failing to identify, locate, evaluate, or offer special education services, and/or failed to ensure a smooth and effective transition for disabled preschool children. The Rehabilitation Act claims and the Court’s various findings regarding them rest on top of the IDEA claims. The Court found that the District violated the Rehabilitation Act because it violated the IDEA in several ways and because the District
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showed bad faith or gross misjudgment. The Rehabilitation Act claims do not exist completely independently of the IDEA claims. Because the Court concludes that this case should be treated as an IDEA case for the purposes of this fee dispute, it now turns to whether the IDEA fee caps are applicable.
2. IDEA Fee Caps The fee caps are inapplicable based on the subclass sizes. Plaintiffs seek $9,760,487.55 in fees and expenses, but “since plaintiffs cannot recoup expert expenses under the IDEA, those expenses ($121,207.82) should not be subject to the fee cap.” Pls.’ Mot. 36, ECF. No. 537 (internal citations omitted). Subtracting $121,207.82 from $9,760,487.55 equals $9,639,279.73. $9,639,279.73 divided by $4,000 (the fee cap) equals 2,409.82. Therefore, there must be less than 2,410 children in the class for the fee caps to be applicable. The Court previously found that, with respect to Subclass 1, “The District Failed to Provide Special Education and Related Services to Thousands of Children Prior to March 22, 2010.” DL, 194 F. Supp. 3d at 78. Regarding Subclass 2, it found that “The District Failed to Provide Timely Initial Evaluations to over a Thousand Children prior to March 22, 2010.” Id. at 80. For Subclass 3, it found that “The District Failed to Provide Timely Eligibility Determinations to over a Thousand Children prior to March 22, 2010.” Id. at 81. Finally, with respect to Subclass 4, the Court found that “The District Failed to Provide Smooth and Effective Transitions to Many Hundreds of Children Prior to March 22, 2010.” Id. Using conservative estimates, this means that the District failed to provide special education and related services to at least 2,000 children (“thousands of children), failed to provide timely initial evaluations to at least 1,000 children (“over a thousand children”), failed to provide timely eligibility determinations to at least 1,000 children (“over a thousand children”, and failed
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to provide smooth and effective transitions to at least 200 children (“many hundreds of children”). The sum of these figures is 4,200, which is greater than the less than 2,410 needed for the fee caps to apply.
Furthermore, when this Court certified the four subclasses, it addressed numerosity and stated the following:
In just one year, 2008, the plaintiffs’ expert estimates that the District failed to identify at least 1,152 disabled children. The second subclass, children who did not and will not receive initial evaluations within 120 days of referral, numbered at least 514 in 2010. 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. 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. DL v. D.C., 302 F.R.D. 1, 11 (D.D.C. 2013) (internal citations omitted), aff’d, 860 F.3d 713 (D.C. Cir. 2017). Thus, in these limited timeframes (2008 for Subclass 1, 2010 for Subclass 2, 2008 – 2010 for Subclass 3, and 2008 for Subclass 4), the class size numbered 2,886. And, although the Court notes and plaintiffs acknowledge that some overlap may have occurred amongst the subclasses, see Gluckman Aff. ¶ 89, Pls. Ex. 69, ECF No. 566-2, the Court agrees that given that class members have claims spanning thirteen years, the likelihood that duplication is so numerous that it renders the class size small enough for the fee caps to apply is extremely low if not virtually impossible. Even if all 1,152 members of Subclass 1 in 2008 were the same children as those falling into all of the other subclasses, for the fee caps to apply the Court would have to find that in the other 12 years (all years excluding 2008), only 1,258 children fell into the class. Given the pervasiveness of the District’s failures to comply with the IDEA, the Court considers this to be extremely unlikely. Finally, the Court also accepts plaintiffs’ calculations—found in paragraphs 90 through 92 of Mr. Gluckman’s affidavit—regarding the size of Subclass 1 based on population size and
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percentages of children receiving special education and related services between 2003 and 2014.
Plaintiffs’ counsel, after aggregating the necessary data, explains the following:
on average, 4.51% of 3-5-year-olds received special education and related services in the District between 2003 and 2014. The table also shows that, on average, there were 18,434 3-5-year-olds in the District over that period. 4.51% of 18,434 is an average of 832 children served per year. The Court found that the District should be serving at least 8.5% of the 35-year-old population per year. 8.5% of 18,434 is 1,567. The difference between 1,567 and 832 children, which is 735 children, is the average subclass 1 class size for a single year.
The product of 735 (the average number of children in subclass 1) and 12 (the number of years between 2003 and 2014) is 8,820. That includes children ages 3, 4, and 5, and would over-count children because the same child may remain unserved over multiple years. A rough method of eliminating this over-counting is to divide the total by 3, which yields 2,940. That eliminates the potential over-counting problem and conservatively estimates the number of class members because many children will not be in the class over multiple years. This number is a reasonable estimate of the population of subclass 1 between 2003 and 2014. It is conservative because it does not include the members of subclasses 2, 3, and 4, and ends at 2014. 2,940 is larger than 2,410 and 2,441, the numbers needed to make the fee cap irrelevant.
Gluckman Aff. ¶¶ 91–92. The Court accepts these calculations. They, along with all of the
aforementioned findings, show that the fee caps are not applicable in this case because the class
size is larger than 2,410.
B. Reasonable Hourly Rates
Having concluded that fee caps do not apply, the Court now turns to the traditional lodestar
analysis regarding fee awards, first considering the appropriate reasonable hourly rate.
1. Legal Standards
With respect to reasonable hourly rates, parties and courts generally use one of several fee
matrices because, as the D.C. Circuit has noted, “the matrices do provide a useful starting point.”
Covington v. D.C., 57 F.3d 1101, 1109 (D.C. Cir. 1995). First, the most commonly used is the
Laffey Matrix, derived from Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 374 (D.D.C. 1983)
aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), which compiled a
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schedule of prevailing market rates in Washington, D.C. based on years of experience. Because Laffey was decided in the early 1980s, the rates are updated each year using the Consumer Price Index for All Urban Consumers (CPI-U) for Washington-Baltimore to account for changes in the cost of living. The United States Attorney’s Office for the District of Columbia (“USAO”) updates and maintains the Laffey Matrix. See https://www.justice.gov/usao-dc/civil-division. Beginning in May 2015, the USAO stopped issuing Laffey matrices using this methodology, instead issuing what it refers to as the USAO Matrix. See Statement of Interest of the United States 3, ECF No, 564. The USAO Matrix’s “base hourly rates were calculated using statistically significant samples of average hourly rates for 2011 in survey data for the D.C. metropolitan area, as reported in ALM Legal Intelligence’s 2010 & 2011 Survey of Law Firm Economics (‘SLFE’). . . . The USAO Matrix employs the Producer Price Index-Office of Lawyers (PPI-OL) index to adjust for inflation rates for years after 2011.” Id. at 3–4.1 In the context of IDEA fee litigation, specifically, several courts within this District have used the USAO/Laffey rates as a starting point, but have awarded fees at 75% of those rates. See Joaquin, 210 F. Supp. 3d at 67 (internal citations omitted).
Critics of the Laffey/USAO matrices have advocated for the use of a competing matrix known as the LSI (“Legal Services Index”) Matrix. Eley v. D.C., 793 F.3d 97, 101 (D.C. Cir. 2015). It “uses the Legal Services Index of the Bureau of Labor Statistics to adjust for inflation. Developed by Michael Kavanaugh, an economist from Hawaii, the LSI Laffey Matrix adjusts for the increases in costs for legal services only.” Id. at 101–02. “Rather than tracking inflation levels specific to Washington, D.C., the LSI Laffey Matrix tracks the national rate of change in the cost of legal services.” Id. at 102. LSI Laffey rates tend to be higher than Laffey/USAO rates.
1 “The United States does not oppose application of the USAO Matrix methodology to earlier periods. Similarly, it does not oppose application of the Laffey Matrix methodology to periods after May 2015. The USAO-DC, however, has not issued a USAO Matrix for periods prior to June 1, 2015, nor is it issuing Laffey Matrices for periods after May 2015.” Statement of Interest at 3 n.1.
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The D.C. Circuit has declined to decide whether any of the matrices apply to IDEA cases,
and if so, which version. See id. at 105. Nonetheless, the Eley case, “appears to have reframed
the inquiry surrounding a plaintiff’s burden to show that the proposed rates are reasonable.”
Joaquin, 210 F. Supp. 3d at 68. In Joaquin, this Court adopted Chief Judge Howell’s application
of Eley, in which she concluded the following:
IDEA fee applicants may meet their burden of demonstrating that the requested reimbursement rate is reasonable in two alternate ways: “First, the applicant may demonstrate that IDEA proceedings qualify as ‘complex federal litigation,’ to which Laffey rates presumptively apply. Second, alternatively, a fee applicant may demonstrate that rates customarily charged by IDEA practitioners in the District are comparable to those provided under the USAO Laffey Matrix.” Flood, 172 F. Supp. 3d at 210, 2016 WL 1180159, at *9.
***
[T]he D.C. Circuit in both Eley and Salazar v. District of Columbia, 809 F.3d 58, 64 (D.C. Cir. 2015) “suggest[ed] a categorical approach to identifying reasonable reimbursement rates for prevailing IDEA plaintiffs.” Id. at 206, 2016 WL 1180159, at *6. In the past, members of this Court have “drawn a distinction between ‘complex’ IDEA cases, for which full Laffey rates may be available, and ‘non-complex’ cases that generally entitle a prevailing claimant to reimbursement at a reduced rate.” Id. at 208, 2016 WL 1180159, at *7. Under the post-Eley approach outlined by Chief Judge Howell, however, reasonable rates are to be determined without regard to the complexity of the particular IDEA litigation at hand. See id. at 206–09, 2016 WL 1180159, at *6–8.
Additionally, under this framework, even if IDEA litigation ultimately categorically does not qualify as complex federal litigation, a plaintiff may also “justify reimbursement at Laffey rates based simply on direct evidence of fees typically collected by her attorney and other attorneys engaged in IDEA litigation in the District of Columbia.” Flood, 172 F. Supp. 3d at 210, 2016 WL 1180159, at *9. To prove this “prevailing market rate,” fee applicants have the burden of “produc[ing] satisfactory evidence—in addition to the attorney’s own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Applicants may submit fee matrices, which serve as a starting point for calculating the prevailing market rate. Eley, 793 F.3d at 100. These may be supplemented by other evidence including “surveys to update [the matrices]; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.” Id. at 100 (internal quotation marks omitted).
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Joaquin, 210 F. Supp. 3d at 68–69. The Supreme Court has recognized that in some cases, where the work was performed
years prior to receiving any fees, it may be appropriate to award fees using current rates despite the fact that the rates in place at the time the services were rendered were different (that is, lower) than those currently in place:
compensation received several years after the services were rendered—as it frequently is in complex civil rights litigation—is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment—whether by the application of current rather than historic hourly rates or otherwise—is within the contemplation of the statute Missouri v. Jenkins by Agyei, 491 U.S. 274, 283–84 (1989). “Courts may therefore use either current or historic rates in calculating the fee award and, ‘to roughly compensate for delay in payment, a district court has the authority to award current market rates instead of historic market rates.’” Radtke v. Caschetta, No. 06-CV-2031-RCL, 2017 WL 2483720, at *12 (D.D.C. June 7, 2017). Although there is no test to determine whether current or historic rates should be used, courts have considered the following: 1) whether current rates would create a windfall for plaintiffs’ counsel; 2) the party at fault for the delay; and 3) the length of the delay between the time the services were rendered and the time of payment. Id. (collecting cases). The Court will first examine whether plaintiffs have demonstrated that IDEA proceedings qualify as complex federal litigation to which one of the matrices presumptively applies, and which matrix is appropriate, then will consider whether plaintiffs have shown that rates customarily charged by IDEA practitioners in the District are comparable to those provided under the LSI Matrix. Finally, the Court will determine whether current or historic rates should apply.
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2. Analysis a) IDEA Litigation is Complex Federal Litigation
It appears that plaintiffs here are largely advocating for the first approach to determining the reasonable hourly rates, arguing that they are entitled to fees based on market rates for complex federal litigation. They argue that prevailing market rates are those listed in the LSI Matrix. The District does not argue that IDEA litigation is not complex—it identifies IDEA litigation as “a submarket of federal complex litigation” on several occasions—but instead argues that USAO rates more accurately reflect the prevailing market rates for complex federal litigation.
Thus concluding that IDEA litigation qualifies as complex federal litigation to which one of the fee matrices presumptively applies, the Court must determine whether the USAO Matrix or the LSI Matrix is appropriate. This issue ultimately comes down to dueling expert witness affidavits. While recognizing that each expert has sufficient qualifications and both present fairly comprehensive arguments, the Court agrees with the District’s expert that the USAO Matrix is the more appropriate tool for determining attorneys’ fees in cases such as this one. Fee matrices contain two components: “a set of market rates for a base period, and an index by which those rates are adjusted annually for changes in the cost of living.” U.S. Statement of Interest 5, ECF No. 564. The base rates supporting the LSI matrix are provided by a 1989 declaration submitted by attorney Joseph Yablonski for use in Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) (en banc) (“SOCM”), which ultimately resulted in a settlement. Then, in Salazar v. District of Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000), a § 1983 Medicaid class action, an expert witness for the plaintiffs adjusted Mr. Yablonski’s base rates using the Legal Services Index (“LSI”) component of the Consumer Price Index. This new matrix was accepted for use by the Salazar court. Id. at 14–15. The Matrix is adjusted annually for inflation using the Consumer
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Price Index for Legal Services. The base hourly rates for the USAO Matrix “were calculated using statistically significant samples of average hourly rates for 2011 in survey data for the D.C. metropolitan area, as reported in ALM Legal Intelligence’s 2010 & 2011 Survey of Law Firm Economics (‘SLFE’).” United States Statement of Interest at 3. The Matrix is adjusted annually for inflation using the Producer Price Index-Office of Lawyers (PPI-OL).
The Court finds that, based on the evidence submitted by both parties, the USAO Matrix is more reliable and unbiased. As the United States points out in its statement of interest, the base rates underlying the LSI Matrix date back to 1989, while the rates underlying the USAO Matrix are based on 2011 data. More importantly, the LSI Matrix rates are based on the declaration of one attorney—Mr. Yablonski, who believed that the Laffey Matrix was too conservative—for his own use in SOCM, which eventually ended in a settlement without a decision from the court regarding appropriate fee rates. See Yablonski Decl., Pls.’ Ex. 33, ECF No. 537-33. Mr. Yablonski explained that in the course of preparing his Matrix, he spoke with attorneys from several firms (he lists seven specifically) and “compared the rates [he] had found with the rates set forth in two broad-ranging surveys of hourly rates published in the National Law Journal in November 1987 and November 1988.” Id. ¶¶ 5–6. As the District’s expert, Dr. Laura Malowane, notes, however, “Mr. Yablonski never explained how he identified the attorneys and firms to sample, the number of attorneys he spoke with, how many data points were collected to derive each individual billing rate in the matrix, or how many data points were collected in total.” Malowane Decl. ¶ 15, Def.’s Ex. 11, ECF No. 554-11. Plaintiffs’ expert, Dr. Michael Kavanaugh, states that Mr. Yablonski’s survey “was an expert survey that targeted attorneys who were performing complex federal litigation and asked for billing rates for defined levels of experience,”
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Second Kavanaugh Decl. ¶ 33, Pls.’ Ex. 78, ECF No. 566-11, but does not specifically address the shortcomings identified by Dr. Malowane.
Furthermore, reliance on National Law Journal surveys has been called into question by other courts. Judge Friedman in Blackman v. D.C. cited to the defendants’ argument that the National Law Journal “is not a scientific study and that it relied on self-reported rates, which firms may reduce in practice, and that those rates came from the largest and most prestigious law firms, not from a representative sampling of firms” in determining that the USAO Laffey Matrix should apply. 677 F. Supp. 2d 169, 176 (D.D.C. 2010), aff’d, 633 F.3d 1088 (D.C. Cir. 2011). The National Law Journal was also criticized by Judge Sullivan, who found that it was inapposite in a case where the plaintiff’s attorneys did not practice in large law firms because it “only examines the rates of the nation’s 250 largest law firms, which range in size from 392 to 1092 attorneys.” Heller v. D.C., 832 F. Supp. 2d 32, 45–46 (D.D.C. 2011). More recently, Judge Mehta has noted that the National Law Journal “is of limited evidentiary value for purposes of establishing the prevailing market rates in Washington, D.C., for civil rights and copyright litigation,” because it “does not . . . distinguish billing rates for partners and associates in terms of years of experience, the type of work performed, or the law firm’s location.” Prunty v. Vivendi, 195 F. Supp. 3d 107, 114 (D.D.C. 2016). This Court has, in fact, rejected reliance on the National Law Journal, agreeing with Chief Judge Howell that “the National Law Journal Billing Survey ‘is of limited value absent a showing that these rates also prevail in the particular context of IDEA matters.’” Joaquin, 210 F. Supp. 3d at 74 (D.D.C. 2016) (quoting Eley v. D.C., 201 F. Supp. 3d 150, 161 (D.D.C. 2016)).
On the other hand, the Court finds that the District has submitted evidence showing that the USAO Matrix had more indicia of reliability and more accurately represents prevailing market rates. The USAO Matrix “begins with 2011 average hourly attorney rates derived from ALM
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Legal Intelligence’s 2011 Survey of Law Firm Economics,” which “represents actual average
billing rates of attorneys from all size firms in the Washington, DC metropolitan area.” Malowane
Decl. ¶ 6. Further, as Dr. Malowane explains,
The data used by the USAO Matrix are based on a statistical survey of hundreds of attorneys in the Washington, DC area. Questionnaires are mailed out and responses are tallied. Sampling frame and design are clearly stated in the survey and a particular billing rate is provided in the survey results only if there is sufficient statistical data to assure its accuracy. In practical terms this means that for each billing rate of each experience level there must be a sufficient number of firms and individual attorneys providing data to determine that rate. If there is not a sufficient number of survey respondents for a particular rate, the billing rate is not provided in the survey results as it is deemed to not be sufficiently reliable. These survey parameters ensure that the data published in the SLFE are reliable. Id. ¶ 14. Furthermore, the USAO Matrix more accurately captures an individual’s fees because it
has more narrowly defined categories of years of experience. Id. ¶ 22. Whereas the LSI Matrix
begins with the category of “1–3 years,” ends with “20+ years,” and contains a total of five
experience categories, the USAO Matrix begins with the category of “less than 2 years,” ends with
“31+ years,” and contains a total of nine experience categories. Id. ¶ 21.
The Court is also not swayed by plaintiffs’ own market data, which is summarized in
Exhibit 48, and purports to show that actual market rates are more closely aligned with the LSI
Matrix. As the District notes, however, several methodological issues are present in this data.
First, plaintiffs rely in part on billing rates in bankruptcy matters, which are generally not
conducted for fee paying clients and which tend to be higher than rates charged for other types of
cases. Plaintiffs have also not included the rates for practitioners without the labels of “partner”
or “associate,” such as those who are titled “counsel” or “of counsel.” Furthermore, as explained
in Part IV.B.2.b, infra, much of plaintiffs data is unhelpful in determining whether the “rates
customarily charged by IDEA practitioners in the District are comparable to those provided under”
the LSI Matrix because 1) the affiants are not IDEA practitioners, and 2) it is unclear whether they
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It is clear that this is an issue on which minds differ within this Circuit. The Court acknowledges that the LSI matrix has been adopted and used by other courts, including the D.C. Circuit which found in Salazar that the district court “appropriately required the Plaintiffs to demonstrate the propriety of the rates they sought (i.e., under the LSI Laffey Matrix).” Salazar ex rel. Salazar v. D.C., 809 F.3d 58, 64 (D.C. Cir. 2015). The Salazar court also found, however, that the District failed to rebut the plaintiffs’ arguments regarding the propriety of the LSI matrix, and therefore found that LSI Matrix rates were appropriate. See id. at 65. Here, the District (as well as the United States in its statement of interest) has rebutted plaintiffs’ arguments to the satisfaction of this Court. Without guidance from the D.C. Circuit regarding whether IDEA litigation should be treated as complex federal litigation, and if so, which fee matrix applies— beyond a brief concurrence of Judge Kavanaugh stating that “United States Attorney’s Office Laffey matrix is appropriate for IDEA cases,” Eley, 793 F.3d at 105 (Kavanaugh, J., concurring)— this Court is persuaded that the USAO Matrix is the appropriate fee matrix to apply.
b) Rates Customarily Charged by IDEA Practitioners Fee applicants may also demonstrate that the “rates customarily charged by IDEA practitioners in the District are comparable to those provided under” one of the matrices. Joaquin, 210 F. Supp. 3d at 68. Plaintiffs here, however, have failed to show that IDEA practitioners customarily charge and receive rates equivalent to those found in the LSI Matrix. First, and most importantly, although plaintiffs submitted numerous affidavits and declarations stating that the affiant charged rates in line with the LSI Matrix, none of those rates were charged by IDEA practitioners. See Pls.’ Exs. 50–68, ECF Nos. 537-50–537-68. These cannot be used to support the argument that IDEA practitioners customarily charge rate comparable to those in the LSI Matrix.
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Furthermore, this lack of evidence is compounded by the fact that many of the affidavits and declarations discuss rates billed or charged, not rates actually received. See Bravin Decl. ¶ 6, Pls.’ Ex. 50, ECF No. 537-50 (describing rates “charged” and “applied in billing its clients”); Goldsmith Decl. ¶¶ 7–8, Pls.’ Ex. 51, ECF No. 537-51 (discussing “billing rate[s]” and “hourly rates charged”); Clement Decl. ¶ 24, Pls.’ Ex. 52, ECF No. 537-52 (discussing rates “billed”); Hearne Decl. ¶¶ 5, 7, 11, 25, Pls.’ Ex. 53, ECF No. 537-53 (discussing amounts billed and rates charged); Davidson Decl. ¶¶ 5, 8, 13, 14, Pls.’ Ex. 54, ECF No. 537-54 (testifying to familiarity with billing rates, “hourly rates typically charged by firms,” “rates charged or sought by firms,” and “rates that are charged for defense work in the employment field”); Supplemental Davidson Decl. ¶¶ 16-17, Pls.’ Ex. 55, ECF No. 537-55 (stating that lawyers “have accepted Laffey rates,” but that LSI rates sought are reasonable); Cacace Decl. ¶¶ 14-15, Pls.’ Ex. 57, ECF No. 537-57 (describing the amounts her law firm “customarily charges to its paying clients” and her own “billing rate”); Pls.’ Ex. 59, Email from Meghan Largent, ECF No. 537-59 (discussing the amount “requested”); Light Decl. ¶¶ 6-7, Pls.’ Ex. 62, ECF No. 537-62 (testifying that while his retainer agreement reflects rates at Enhanced Laffey rates, some clients also receive discounts in the form of hourly caps, pro bono representation, or contingency fee arrangements); Amunson Decl. ¶¶ 11, 14-16, Pls.’ Ex. 64, ECF No. 537-64 (discussing rates sought); Corn-Revere Aff. ¶ 10, Pls.’ Ex. 65, ECF No. 537-65 (identifying a billing rate); Lewin Aff. ¶¶ 12–13, Pls.’ Ex. 67, ECF No. 53767 (discussing an hourly rate charged); Coburn Aff. ¶¶ 5, 15, Pls’ Ex. 68, ECF No. 537-68 (discussing his hourly rate and the rate sought). It is unclear whether such rates were charged/billed and received. This Court has previously rejected such evidence as sufficient to show that LSI Matrix is appropriate, see Joaquin, 210 F. Supp. 3d at 74, and another district court
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has noted the difference between charging fees at certain rates and collecting fees at those rates, see Eley v. D.C., 201 F. Supp. 3d 150, 161 (D.D.C. 2016).
Finally, plaintiffs do not submit “evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.” Eley, 793 F.3d at 101. Plaintiffs identify three cases in which counsel was awarded fees in accordance with the LSI Matrix: Salazar v. District of Columbia, 809 F.3d 58 (D.C. Cir. 2015); Electronic Privacy Information Center v. Department of Homeland Security, No. 13-260, 2016 WL 3919810 (D.D.C. 2016); Makray v. Perez, 159 F. Supp. 3d 25 (D.D.C. 2016). None of these cases were IDEA cases. Salazar was a 42 U.S.C. § 1983 Medicaid class action, Electronic Privacy Information Center was a FOIA case, and Makray was a Title VII discrimination case. This Court is not aware of any opinions awarding fees at LSI Matrix rates in IDEA cases. Courts, including this one, have found instead that use of the LSI Matrix is not warranted in specific IDEA cases. See Joaquin, 210 F. Supp. 3d at 74; Flores v. D.C., 857 F. Supp. 2d 15, 20 (D.D.C. 2012); Rooths v. D.C., 802 F. Supp. 2d 56, 61–62 (D.D.C. 2011). In fact, as has been discussed in countless other cases, the dispute in IDEA cases often centers around whether plaintiffs’ counsel are entitled to full Laffey/USAO rates or 75% of those rates.
In sum, considering the evidence presented by plaintiffs in support of the use of the LSI Matrix in complex cases, the evidence presented in rebuttal by the District that the USAO Matrix is more appropriate, and the lack of evidence that IDEA practitioners customarily charge rates in line with the LSI Matrix, the Court concludes that the reasonable hourly rates to be used in this case are those set forth in the USAO Matrix. The Court now turns to whether current or historic rates should apply.
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c) Current vs. Historic Rates Beyond arguing that the USAO Matrix should determine the reasonable hourly rates in this case, the District argues that plaintiffs’ counsel should be compensated for work performed during Period 1 with 2012 USAO rates plus interest, and should receive current rates for Period 2. The Court sees no reason to unnecessarily complicate matters in this case by awarding historic rates plus interest for Period 1. The District appears to concede that there has been a sufficient delay in payment that warrants some compensation by suggesting that interest be included. It has presented no convincing reason, however, why this Court should undertake the process of calculating interest when the process for compensating such a delay has been set out by the Supreme Court in Jenkins. The District’s real reasoning appears to be that “historical rates with interest result in a smaller award of attorney’s fees to plaintiffs’ counsel for period 1.” Defs.’ Opp’n at 28, ECF No. 554. The District’s desire to pay a lesser fee award is no reason for this Court to depart from the Supreme Court’s instructions. Current rates shall be used for both Periods 1 and 2. C. Reasonableness of Hours Billed After determining the appropriate billing rate, the next step in determining a fee award is determine whether the number of hours billed are reasonable.
1. Legal Standards Courts must “make an independent determination whether or not the hours claimed are justified.” Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). When determining fee awards, “the most critical factor is the degree of success obtained.” Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). “If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a
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reasonable hourly rate may be an excessive amount.” Id. at 436. However, “the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.” Id. at 435. Fees thus may be reduced for time spent on ultimately unsuccessful claims, but those claims generally must be both unsuccessful and unrelated to the successful claims. See id. at 434–35 (“[P]laintiff[s] may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories,” but “[t]he congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim”); George Hyman Const. Co. v. Brooks, 963 F.2d 1532, 1535 (D.C. Cir. 1992) (“Hensley’s first prong requires a trial court or ALJ to conduct an examination of the hours counsel expended on each claim in the case, weeding out work done on unrelated unsuccessful claims from any award.”); see also Ibrahim v. U.S. Dep’t of Homeland Sec., 835 F.3d 1048, 1061 (9th Cir. 2016) (“Time spent on unsuccessful claims the court deems related are to be included in the lodestar, while ‘[h]ours expended on unrelated, unsuccessful claims should not be included’ to the extent those hours can be ‘isolated.’”).
Although “there is no certain method of determining when claims are ‘related’ or ‘unrelated,’” Hensley, 461 U.S. at 436 n. 12, claims are generally completely unrelated when they are “‘distinctly different’ in all respects, both legal and factual, from plaintiff’s successful claims.” Morgan v. D.C., 824 F.2d 1049, 1066 (D.C. Cir. 1987). In such circumstances, no fees should awarded for the time spent on the unsuccessful claims. Craig v. D.C., 197 F. Supp. 3d 268, 283 (D.D.C. 2016). However, different claims brought in one lawsuit may be interrelated, i.e., they
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“involve a common core of facts” or are “based on related legal theories” and “cannot be viewed as a series of discrete claims.” Hensley, 461 U.S. at 435. In such cases, “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis,” so “the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. Therefore, “if successful and unsuccessful claims share a common core of facts[,] . . . a court should simply compute the appropriate fee as a function of degree of success.” Goos v. Nat’l Ass’n of Realtors, 997 F.2d 1565, 1569 (D.C. Cir. 1993) (internal quotation marks omitted).
In addition, courts should exclude from fee calculations “hours that were not ‘reasonably expended,’” i.e., “excessive, redundant, or otherwise unnecessary” hours. Hensley, 461 U.S. at 434. For example, courts may reduce fee awards “for inadequate billing judgment, for hours billed unrelated or unnecessary to the litigation, for statutorily non-reimbursable time, or for doublebilling.” Shaw v. D.C., 210 F. Supp. 3d 46, 51 (D.D.C. 2016) (internal citations omitted). In addition, tasks that are clerical in nature, such as filing documents, setting up meetings, and faxing documents, are non-compensable. Beckwith v. D.C., No. 15-CV-1284-RCL, 2017 WL 1653148, at *3 (D.D.C. May 1, 2017). Courts may take a “holistic approach” to reducing hours, or may “identify specific hours that should be eliminated.” McAllister v. District of Columbia, 160 F. Supp. 3d 273, 279–80 (D.D.C. 2016).
The District argues that the requested fees should be reduced because plaintiffs improperly billed for matters in which they failed to prevail, because they billed an unreasonable number of hours for many tasks, and because they failed to exercise reasonable billing judgment. It also
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argues that fees for several individual attorneys should be reduced substantially or denied. The Court will take each in turn.
2. Analysis a) Reductions for Lack of Success
The District argues that plaintiffs’ fees should be reduced based on lack of success due to the following unsuccessful claims: 1) the claims of Subclass 2; 2) Rehabilitation Act claims from March 22, 2010 to the present; and 3) plaintiffs’ claim for individual relief. Plaintiffs have withdrawn and hold in abeyance their request for compensation for work related to individual relief ($155,053.31 by TPM and $18,361.98 by co-counsel), thus the Court need not address this issue.
The Court first determines that the “unsuccessful” claims are so interrelated that they cannot be viewed as discrete claims for which compensation is barred. Subclass 2 encompassed disabled three-to-five-year-olds whom the District failed to give an initial evaluation within 120 days of being referred for special education services. Plaintiffs prevailed on the claims of Subclass 2 through April 6, 2011, but not after that. See Nov. 3, 2015 Order, ECF No. 491. The Subclass 2 claims are interrelated to the Subclass 3 claims, which encompassed disabled three-to-five-yearolds whom the District failed to give an “eligibility determination” within 120 days of being referred, and upon which plaintiffs prevailed. As this Court explained, “the percentages of timely evaluations should be nearly identical to the eligibility determination statistics. . . . In fact, the data may be exactly the same, since, at least for the period from 2011 to the present, the District has reported data regarding the percentage of timely eligibility determinations, but referred to that data as the percentage of timely evaluations.” DL, 194 F. Supp. 3d at 80–81. Furthermore, the Rehabilitation Act claims—on which plaintiffs did not prevail from March 22, 2010 to the present—are interrelated with the IDEA claims. As this Court previously discussed, this case is
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at its heart an IDEA case. The Rehabilitation Act provides a remedy when the defendant’s IDEA

violations were committed in bad faith or through gross misjudgment. The Rehabilitation Act

claims in this case rest on top of the IDEA claims.

Given the interrelatedness of the unsuccessful claims to the successful claims, the Court

will consider plaintiffs’ degree of success in determining whether to reduce the fee award.

Plaintiffs largely prevailed on their claims. After the issues of class certification were settled, the

Court found in 2014 that “the District was liable for violating the IDEA and District law for the

period up to April 6, 2011” for all four subclasses. DL, 194 F. Supp. 3d at 37. It ruled for

defendants, however, “on (1) plaintiffs’ IDEA and District law claims related to the failure timely

to evaluate children for special education and related services for the period from April 6, 2011 to

the present [Subclass 2], and (2) all of plaintiffs’ Rehabilitation Act claims for the period from

March 22, 2010 to the present.” Id. Then, at trial, plaintiffs alleged that the District violated the

IDEA with respect to Subclasses 1, 3, and 4 from April 6, 2011 through the present, and that the

District violated the Rehabilitation Act with respect to all four subclasses for the period up to

March 22, 2010. Id. at 37–38. After trial, the Court found that the District had violated the IDEA

with respect to Subclasses 1, 3, and 4 from April 6, 2011 through the first day of trial (November

12, 2015), and that it violated the Rehabilitation Act with respect to all four subclasses through

March 22, 2010. Id. at 88–96. The breakdown of each party’s success is as follows:

Subclass 1 Subclass 2 Subclass 3 Subclass 4

IDEA Claims through April
6, 2011
Plaintiffs Plaintiffs Plaintiffs Plaintiffs

IDEA Claims from April 6, 2011 to present
Plaintiffs Defendants Plaintiffs Plaintiffs

Rehabilitation Act Claims
through March 22, 2010
Plaintiffs
Plaintiffs
Plaintiffs
Plaintiffs

Rehabilitation Act Claims
from March 22, 2010 to present
Defendants
Defendants
Defendants
Defendants

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Clearly, plaintiffs prevailed on the large majority of issues presented in this case. Moreover, the Court finds that success on the IDEA claims carries more weight than success on the Rehabilitation Act claim. As has been mentioned numerous times, this was essentially an IDEA case. To prevail at all, plaintiffs needed to have prevailed on their IDEA claims. Except for the claims of Subclass 2 from April 6, 2011 to the present, they did so. Therefore, although some reduction is warranted for lack of success, it must be limited. The Court finds that a 5% reduction is appropriate. Although 5% may seem small, on a total reward of upwards of $10 million, 5% equals almost $500,000, which is a substantial sum.
The District also argues that plaintiffs’ fee award should be reduced due to the following unsuccessful litigation strategies: 1) defense of defendants’ appeal in 2012–2013 and 2) efforts towards settlement. The District filed an appeal after this Court denied its motion to decertify the class. It was ultimately successful on that appeal. Plaintiffs, of course, defended against the appeal as was required of them. After appeal and certification of the four subclasses, plaintiffs largely prevailed, as shown above. The Court does not find that plaintiffs should be penalized for defending an appeal they were forced to defend as a result of this Court’s decision not to decertify the class, which was ultimately overturned.
The Court also finds that, absent any indication that the District had completely declined to engage in settlement efforts and plaintiffs knowingly billed for settlement time anyway, plaintiffs should be compensated for time spent on settlement efforts. The District’s reliance on the Cobell decision is misplaced given subsequent proceedings in that case. In 2005, this Court, considering an interim award of attorney’s fees, found that plaintiffs could not be compensated for unsuccessful settlement efforts up to that point. Cobell v. Norton, 407 F. Supp. 2d 140, 156 (D.D.C. 2005). The case did not end there, however. Many years of litigation later, the parties
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reached a settlement agreement, in which they agreed not to appeal a fee award of anywhere between $50 and $99.9 million. Joint Motion for Preliminary Approval of Settlement at 16, Cobell v. Salazar (D.D.C. Dec. 10, 2010) (No. 96-cv-1285), ECF No. 3660. Judge Hogan, to whom the case was later assigned, held a fairness hearing and approved the parties’ settlement, awarding fees totaling $99 million. Order Granting Final Approval to Settlement ¶ 15, Cobell v. Salazar, 2011 WL 10676927, at *5 (D.D.C. July 27, 2011), ECF No. 3850. The Court of Appeals affirmed Judge Hogan’s approval of the settlement in 2012. Cobell v. Salazar, 679 F.3d 909 (D.C. Cir. 2012). Given the subsequent settlement in Cobell, which included a fee settlement, this Court considers the portion of its earlier fee decision regarding fees for time expended on settlement efforts to have been essentially abrogated. It does not consider itself bound by that decision and finds that plaintiffs here should be compensated for their time spent on settlement efforts.
b) Reductions for Inadequate Billing Judgment and Unreasonable Number of Hours Billed
The District argues that plaintiffs’ fees should be reduced because counsel failed to exercise billing judgment and because counsel billed an unreasonable number of hours for many tasks. Specifically, the District argues that plaintiffs’ invoices are excessive for the work performed, plaintiffs should not be reimbursed for block-billed tasks, plaintiffs’ billing entries are impermissibly vague, plaintiffs over-lawyered tasks, and plaintiffs improperly billed for clerical tasks. The Court will address each argument, but takes into consideration the Supreme Court’s instruction that “[t]he essential goal in shifting fees is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
The Court first considers the closely related issues of billing judgment and the reasonableness of the number of hours expended. Plaintiffs’ counsel has already eliminated approximately 10% of their fees, totaling approximately $1.1 million, in the exercise of billing
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judgment. Some of this time was excluded from plaintiffs’ initial fee petition, some was excluded as a result of the District’s opposition to plaintiffs’ 2012 petition, and some was excluded as a result of the District’s opposition to the instant motion. TPM eliminated $67,989.072 for time marked as “No Charge” from Period 1; $63,710.24 in response to the District’s opposition to plaintiffs’ 2012 fee application; $1,599.74 in additional reductions made prior to the filing of plaintiffs’ instant motion; $40,001.04 related to fees which TPM requested in 2012 in relation to Plaintiffs’ Motion to Compel Discovery; $128,037.68 in fees marked as “No Charge” during Period 2; and $361,391.49 in additional reductions made with regard to Period 2 prior to the filing of plaintiffs’ instant motion. See Terris Aff. ¶¶ 31–33, 68–70, Pls.’ Ex. 1, ECF No. 537-1. Professor Gutman has excluded half of the time spent by his students on this case (228.875 out of 457.75 hours expended; 6.625 hours out of 13 hours and 15 minutes expended; 59.75 hours out of 119.5 hours expended; and 1.5 hours out of 3 hours expended), as well as 4.5 hours (from 72.5) on work he conducted in 2005 and 2006. Gutman Aff. ¶¶ 10, 16, 17, 21, 23, Pls.’ Ex. 14, ECF No. 537-15. Ms. Kohn has deducted 21.33 hours (from a total of 364.77) from her Period 1 time and 18.7 hours (from a total of 151.80) from her Period 2 time. Kohn Aff. ¶¶ 24, 36, Pls.’ Ex. 16, ECF No. 537-16. Mr. Mehri also excluded several hours of his time and his paralegal’s time. Mehri Aff. ¶ 13, Pls.’ Ex. 17, ECF No. 537-17.
In their reply brief, plaintiffs’ counsel excludes additional time from their fee petition. TPM has deducted an additional $346.32 in costs for Period 1 and $231,760.13 in fees from Period 2. Revised Summary of Fees and Expenses, Pls.’ Ex. 4, ECF No. 566-1; Plaintiffs’ Summary of Additional Reductions of Time and Expenses with Reply Brief, Pls.’ Ex. 102, ECF No. 566-35. Professor Gutman has deducted an additional $4,749.50 in fees for Period 2. Id. Ms. Kohn has
2 This figure was calculated using plaintiffs’ proffered rates under the LSI Matrix.
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deducted an additional $13,612.48 in fees from Period 2. Id. In sum, plaintiffs originally sought $10,010,956 after excluding $828,702.81 of their fees and expenses in the exercise of billing judgment. They now seek $9,760,487.55 after further exclusions made in response to the District’s opposition, totaling $250,468.45. Given plaintiffs’ already performed diligence in excluding approximately 10% of the fees and expenses incurred in this case in the exercise of billing judgment and in an effort to exclude time unreasonably billed, the Court finds that no further reduction is warranted.
The Court next finds that plaintiffs billing entries are not vague or block billed. While plaintiffs’ billing entries do list separate tasks within one entry, plaintiffs’ time records are divided into categories and subcategories that relate to the work performed. For example, the categories include descriptions such as “complaint,” “plaintiffs’ motion for certification,” “plaintiffs’ initial disclosures,” and “defendant’s motion to dismiss.” The subcategories include descriptors such as “drafting complaint,” “plaintiffs’ initial brief,” and “plaintiffs’ opposition brief.” When these categories and subcategories are taken into consideration, plaintiffs’ entries are not vague. Nor do they run afoul of the rule against block billing—which exists because block billing makes it impossible to determine how much time within a block is non-compensable if the block contains certain non-compensable tasks, see Bennett v. Castro, 74 F. Supp. 3d 382, 405 (D.D.C. 2014)— because the division into categories and subcategories sufficiently shows whether the entire entry is compensable.
The District’s argument that plaintiffs’ award should be reduced due to over-lawyering— double billing for tasks—also fails. It appears to the Court that the District is simply speculating that unnecessary double billing occurred for the exact same task. It is not unusual, particularly in a large class action such as this, for lawyers to work on teams where multiple members collaborate
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on tasks and attend the same meetings. The District has not identified circumstances in which multiple members of the plaintiffs’ counsel’s team billed for the exact same task. Cf. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 972 (D.C. Cir. 2004) (describing improper double billing when two individuals billed time for filing the same brief on three occasions).
Finally, the District argues that plaintiffs improperly billed for clerical tasks, such as assembling invoices, downloading document productions, and maintaining and storing electronically filed documents. The District has identified much of, but not all of, the work it feels is clerical. From Period 1, it identifies 169.434 hours of time billed under the category of Document/Database Management, 13.07 hours of making copies, and .20 hours related to scanning. From Period 2, the District identifies 20.57 specific hours related to assembling invoices, downloaded document productions, and document/database management. It also argues that “[p]laintiffs include ‘case management’ as a billable category, when the work consists of nothing more than maintaining and sorting electronically filed documents.” Defs.’ Opp’n at 36. Plaintiffs do include a category called “Case Administration,” which costs of the subcategory “ECF Management” in which the description of work is “process ECF filings,” and the subcategory “Document/Database Management” in which the description of work includes “process ECF filings” as well as various other tasks. Plaintiffs argue that all of this work was compensable paralegal work.
The Court finds that these entries constitute a mixed bag of compensable and noncompensable work. On the one hand, work such as document and database management has been considered compensable paralegal work. See Salazar v. D.C., 991 F. Supp. 2d 39, 55 (D.D.C. 2014). On the other, tasks such as copying and scanning are traditionally considered noncompensable clerical work. See Jackson v. D.C., 603 F. Supp. 2d 92, 98 (D.D.C. 2009), amended
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in part, 696 F. Supp. 2d 97 (D.D.C. 2010). Therefore, of the 203.27 hours of work performed by paralegals specifically identified by the District, the Court finds that 50%—or 101.64 hours—are not compensable.
c) Reductions for Specific Counsel The District argues that the fee requests of TPM’s co-counsel—Margaret Kohn, Jeffrey Gutman, and Cyrus Mehri—should be substantially reduced or denied. With respect to Ms. Kohn, it argues that she billed for matters unrelated to this case—specifically for work related to the Blackman-Jones lawsuit—and her additional time was cumulative and unreasonable. The Court first finds that the Blackman-Jones argument fails because, as Ms. Kohn testified in her affidavit, she gathered information related to the Blackman-Jones case to assist plaintiffs in this case; she was not billing for work performed on that case. See Kohn Aff. ¶¶ 19, 34. In addition, there is no evidence that Ms. Kohn’s contributions were cumulative or unnecessary. According to her affidavit, Ms. Kohn has expertise and extensive experience in special education law, including in the context of class actions. See Kohn Aff. 1–8. Bruce Terris, lead counsel for plaintiffs, also testified that “[h]er extensive knowledge of special education law and the Child Find operations, policies, and practices of the District enabled her to provide essential contributions as class counsel.” Terris Aff. ¶ 11(b). Finally, the reductions made by Ms. Kohn to her own time are sufficient to remedy any unreasonable hours billed. Ms. Kohn seeks $283,681.44 for Period 1, after a $17,618.58 reduction. See Revised Summary of Fees and Expenses. For Period 2, she seeks $96,328.12, after a reduction of $29,058.68. Id. Beyond any aforementioned across the board reductions, Ms. Kohn’s fees shall not be further reduced. The District argues that all of the fees billed by Professor Gutman should be denied because “[n]o justification exists for awarding work done by law students more than a decade ago—for which they received school credit, not to mention practical legal experience,” the time entries are
32

Case 1:05-cv-01437-RCL Document 580 Filed 08/25/17 Page 33 of 36
deficiently vague, and Professor Gutman and his students billed in 15 minute increments thereby inflating the bills. Defs.’ Opp’n at 43–44. First, there is simply no reason to reduce these fees because the work was performed many years ago. The purpose of fee-shifting statutes is to compensate for the work performed, regardless of when it occurred. In addition, it is established that law students may be awarded fees at paralegal rates. See Covington, 57 F.3d at 1105–07; Blackman, 677 F. Supp. 2d at 175. Finally, the reductions already made by Professor Gutman are sufficient to remedy any vagueness or issues with 15 minute billing. As explained above, Professor Gutman cut in half all of the hours expended by his students in his fee petition. He further reduced the originally sought $5,988.50 for Period 2 by $4,749.50. See Revised Summary of Fees and Expenses. The 50% reduction and further exclusion of $4,749.50 are sufficient and Professor Gutman’s fees shall not be further reduced.
Finally, the District argues that Mr. Mehri’s fees should be denied because his participation in this case consisted of advising on class certification and settlement, but plaintiffs lost on class certification and failed to settle. As the Court has already found that plaintiffs are entitled to fees despite losing the class certification question on appeal and failing to reach a settlement agreement, the District’s argument with respect to Mr. Mehri is without merit and he is entitled to the fees sought.
D. Reasonableness of Costs The District argues that plaintiffs’ costs are excessive and should be reduced significantly. Specifically, the District argues that ground transportation (via taxi), overnight delivery, overtime services, telephone charges, and Westlaw and Lexis fees are not reimbursable. The Court rejects these arguments in part. “Reasonable photocopying, postage, long distance telephone, messenger, and transportation and parking costs are customarily considered part of a reasonable ‘attorney’s
33

Case 1:05-cv-01437-RCL Document 580 Filed 08/25/17 Page 34 of 36
fee.’” Sexcius v. D.C., 839 F. Supp. 919, 927 (D.D.C. 1993) (emphasis added). The costs of legal research are also reimbursable under fee shifting statutes. See Role Models Am., 353 F.3d at 975 (“The government urges us to deny any recovery for computer-research charges, but we decline to do so because such services presumably save money by making legal research more efficient”); Salazar, 991 F. Supp. 2d at 64 (“Reimbursement under section 1988 for Westlaw and Lexis fees incurred for ‘computer-assisted legal research’ is standard in this Circuit.”). Therefore, the District shall reimburse plaintiffs for their travel expenses, telephone charges, and Westlaw and Lexis charges. Because plaintiffs make no argument with respect to expenses incurred for overnight delivery ($10,274.44) or overtime services ($284.24), the Court will not award them reimbursement for these costs.
The District also argues that the expenses sought for printing— $36,000—are excessive. Given that much of the material in this case was kept in electronic format, the Court finds that it is not appropriate to shift the entire cost of printing when the reason for printing is at least partially simple preference for hard copy. See Gluckman Aff. ¶ 80. The printing expenses shall be reduced by 50%.
E. Expert Fees The final disagreement in this case centers around reimbursement for expert fees. Plaintiffs agree that they cannot recover expert fees under the IDEA. Instead, they seek $121,207.82 for expenses incurred by their two experts during Period I under the Rehabilitation Act. As both parties acknowledge, there is a split of authority in district courts regarding whether plaintiffs may recover expert fees under the Rehabilitation Act. Compare M.M. v. School District of Philadelphia, 142 F. Supp. 3d 396, 413 (E.D. Pa. 2015) (holding that expert fees are recoverable in Rehabilitation Act cases), and K.N. v. Passaic City Board of Education, No. 11-399, 2011 WL
34

Case 1:05-cv-01437-RCL Document 580 Filed 08/25/17 Page 35 of 36
5157280, at *15 (D.N.J. 2011) (same), with M.P. ex rel. Independent School District, No. 01-771, 2007 WL 844688, at *4 (D. Minn. 2007) (finding that expert fees are not recoverable under the Rehabilitation Act), and Mason v. Maine Dept. of Corrections, 387 F. Supp. 2d 57, 64 (D. Me. 2005) (same). Absent clear statutory command or direction from the D.C. Circuit—or any Circuit Court—the Court agrees with those courts that have held that expert fees are recoverable under the Rehabilitation Act.
Although this Court has mentioned several times that the importance of the IDEA claims in this case and the fact that the Rehabilitation Act claims do not exist independently, it is not true that the Rehabilitation Act added nothing of substance to this case. Plaintiffs had to meet a greater burden to prove their Rehabilitation Act claims—bad faith or gross misjudgment. If the Rehabilitation Act claims added nothing to this case, there would have been no reason for them to proceed all the way through trial. The Court concludes that plaintiffs are entitled to $121,207.82 for expert fees. V. CONCLUSION
Plaintiffs’ motion for attorneys’ fees and costs shall be granted in part and denied in part. The IDEA fee caps do not apply in this case. Fees shall be calculated according to the lodestar method of multiplying the number of hours reasonably expended by reasonable hourly rates. Hourly rates shall be determined by current USAO Matrix rates. Plaintiffs shall multiple these rates by the number of hours billed for each timekeeper—after all of the aforementioned voluntary reductions—less the 101.64 hours the Court has identified as non-compensable clerical work billed by paralegals. After this calculation, plaintiffs’ fee award shall be reduced by 5% for lack of success. It shall not be further reduced for issues such as lack of billing judgment, unreasonable number of hours, block billing, or vagueness. The fee awards for Margaret Kohn, Jeffrey Gutman,
35

Case 1:05-cv-01437-RCL Document 580 Filed 08/25/17 Page 36 of 36

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 16-7076

September Term, 2016
FILED ON: JUNE 23, 2017

DL, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL., APPELLANTS

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

Before: TATEL, GRIFFITH and MILLETT, Circuit Judges
J U D G M E N T
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel. On consideration thereof, it is
ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed in all respects, in accordance with the opinion of the court filed herein this date.
Per Curiam

FOR THE COURT: Mark J. Langer, Clerk
BY: /s/
Ken Meadows Deputy Clerk

Date: June 23, 2017 Opinion for the court filed by Circuit Judge Tatel.

 
 Case 1:05-cv-01437-RCL Document 590 Filed 12/15/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

DL, et al.,

)

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA, et al.,

)

)

)

__________D_e_fe_n_d_a_n_ts_. ______________))

Case No: 05-cv-1437-RCL

ORDER On August 25,2017, the Court issued an order granting in. part and denying in part Plaintiffs' Motion for Attorneys' Fees and Costs, ECF No. 579. The Court further ordered Plaintiffs to submit a revised calculation of their fee award in compliance with the Court's Memorandum Opinion, issued the same day, and the following instructions:

1. Plaintiffs' fees shall be calculated using current USAO Matrix rates.
2. Plaintiffs shall deduct 101.64 hours, which the Court has identified as noncompensable clerical work, from the hours billed by paralegals.
3. Plaintiffs shall reduce their remaining fees-after the 101.64 hour reduction-by 5%.
4. Plaintiffs shall calculate their costs for travel, telephone, and Westlaw/Lexis expenses.
5. Plaintiffs shall deduct costs expended on overnight delivery and overtime services.
6. Plaintiffs shall deduct 50% of their printing costs.
7. Plaintiffs shall be reimbursed $121,207.82 in expert fee expenses.

Case 1:05-cv-01437-RCL Document 590 Filed 12/15/17 Page 2 of 3
The Court also instructed that Plaintiffs' submission of revised calculations include a chart with the following information: 1) the individual timekeeper; 2) a description of each task (including the categories and subcategories already employed); 3) the date of each task; 4) the hours billed on each task; 5) the timekeeper's rate (using current USAO rates); 6) the fees due for that task; and 7) subtotals and totals. The Court ordered Defendants to respond to Plaintiffs' submission, if necessary, and granted Plaintiffs an opportunity to reply.
Now before the Court are Plaintiffs' submission, ECF No. 585, Defendants' response, ECF No. 587, and Plaintiffs' reply, ECF No. 588. The Court finds that Plaintiffs complied with the Court's Order and Opinion, filed on August 25, 2017, both in substance and in form. Defendants had ample opportunity to confer with Plaintiffs regarding the billing records if they had trouble understanding them. In their response, they failed to object to a single line item or calculation in Plaintiffs' submission. Instead, Defendants aver that they are unable to understand Plaintiffs' submission and that the submission fails to conform with the Court's August 25 Order.
The Court does not agree with Defendants' that "plaintiffs[] fail[ed] to format their records as the Court ordered." ECF No. 587. Plaintiffs submitted line-by-line time entry exhibits in tables that include all the information requested by the Court in its August 25 order except for the subtotals. See ECF Nos. 585-5, 585-10. The subtotals, per subcategory, were provided in separate exhibits. See ECF Nos. 585-4, 585-9. The Court agrees that "[t]ogether, plaintiffs' exhibits provide all of the data points requested by the Court." See ECF No. 585 at 3 n.3. Furthermore, the Court does not take issue, as Defendants appear to, with the fact that Plaintiffs' billing records are not chronological. The Court never required that of Plaintiffs and has no trouble reviewing the billing records as presented.

Case 1:05-cv-01437-RCL Document 590 Filed 12/15/17 Page 3 of 3

Upon consideration ofPlaintiffs' Motion for an Award of Litigation Costs filed

September 28,2016, ECF No. 537, the briefing in support of and in opposition thereto, this

Court's Memorandum Opinion and Order, ECF Nos. 579, 580, Plaintiffs' Calculation of Fees

and Expenses Pursuant to the Court's Fees Decision, and all further briefing in support and in

opposition thereto, the Court ORDERS that Defendants pay Plaintiffs a total of$6,961,480.45

for their attorney's fees and expenses based on the following computations:

1. Attorney's Fees ofTerris, Pravlik & Millian, LLP: $6,344,745.62

2. Attorney's Fees of Jeffrey Gutman and his law students on behalf of The George

Washington University: $96,832.06

3. Attorney's Fees of Margaret A. Kohn: $262,458.09

4. Attorney's Fees of Cyrus Mehri: $14,307.24

5. Expenses accrued by Terris, Pravlik & Millian, LLP: $241,409.83

6. Expenses accrued by Margaret Kohn: $1,727.61

It is SO ORDERED.
,..,
Date: December ("') , 2017

~(·~ Ro e C. Lamberth United States District Judge

 
 5/30/2020

16-7076 Docket

General Docket United States Court of Appeals for District of Columbia Circuit
Court of Appeals Docket #: 16-7076 Nature of Suit: 3440 Other Civil Rights DL, et al v. DC, et al Appeal From: United States District Court for the District of Columbia Fee Status: Fee Waived

Case Type Information: 1) Civil Private 2) Private 3)

Originating Court Information:

District: 0090-1 : 1:05-cv-01437-RCL

Sentencing Judge: Royce C. Lamberth, U.S. Senior District Judge

Date Filed: 07/21/2005

Date Order/Judgment:

Date NOA Filed:

05/18/2016

06/16/2016

Prior Cases: None

Current Cases: None
Panel Assignment: Panel: DST TBG PAM Date of Hearing: 03/31/2017

Date of Decision: 06/23/2017

Date Completed: 06/23/2017

Docketed: 06/27/2016 Termed: 06/23/2017
Lead: 1:05-cv-01437-RCL

DL Plaintiff - Appellee

Margaret A. Kohn Direct: 202-544-1200 Email: margaret.kohn07@gmail.com Fax: 202-544-1201 [COR LD NTC Retained] Margaret A. Kohn, Attorney at Law Firm: 202-544-1200 619 Pennsylvania Avenue, SE 2nd Floor Washington, DC 20003

Cyrus Mehri Direct: 202-822-5100 Email: cmehri@findjustice.com Fax: 202-822-4997 [COR LD NTC Retained] Mehri & Skalet, PLLC Firm: 202-822-5100 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036

Todd Gluckman, Attorney Direct: 202-204-8482 Email: tgluckman@tpmlaw.com [COR NTC Retained] Terris, Pravlik & Millian, LLP Firm: 202-682-2100 1816 12th Street, NW Suite 303 Washington, DC 20009-4422

Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 Email: cpravlik@tpmlaw.com Fax: 202-289-6795 [COR NTC Retained] Terris, Pravlik & Millian, LLP

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Tameka Ford, Parent and Next Friend of D.L. Plaintiff - Appellee
JB Plaintiff - Appellee
Leah Bland, Parent and Next Friend of JB Plaintiff - Appellee

16-7076 Docket
Firm: 202-682-2100 1816 12th Street, NW Suite 303 Washington, DC 20009-4422
Patrick A. Sheldon Direct: 202-204-8469 Email: psheldon@tpmlaw.com [COR NTC Retained] Terris, Pravlik & Millian, LLP Firm: 202-682-2100 1816 12th Street, NW Suite 303 Washington, DC 20009-4422
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)

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FD Plaintiff - Appellee
Frederick Davy, Parent and Next Friend of FD Plaintiff - Appellee

16-7076 Docket
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)

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Monica Davy, Parent and Next Friend of FD Plaintiff - Appellee
TF Plaintiff - Appellee
Angelique Moore, Parent and Next Friend of TF - On their own behalf and on behalf of a class of similarly situated individuals
Plaintiff - Appellee

16-7076 Docket
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)

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HW

Plaintiff - Appellee

Timothy Lantry

Plaintiff - Appellee

Arlette Mankemi

Plaintiff - Appellee

16-7076 Docket
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)

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5/30/2020

Kerianne Piester

Plaintiff - Appellee

TL Plaintiff - Appellee

Ronald Wisor

Plaintiff - Appellee

16-7076 Docket
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)

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XY Plaintiff - Appellee

Bryan Young

Plaintiff - Appellee

Tammika Young

Plaintiff - Appellee

16-7076 Docket
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR LD NTC Retained] (see above)

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5/30/2020
v. District of Columbia, A Municipal Corporation
Defendant - Appellant
Kaya Henderson, Chancellor Defendant - Appellant
https://ecf.cadc.uscourts.gov/n/beam/servlet/TransportRoom

16-7076 Docket
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR NTC Retained] (see above)
Patrick A. Sheldon Direct: 202-204-8469 [COR NTC Retained] (see above)
Lucy E. Pittman, Assistant Attorney General Direct: 202-727-3881 Email: lucy.pittman@dc.gov Fax: 202-741-5925 [COR LD NTC Gvt DC OAG] Office of the Attorney General, District of Columbia Office of the Solicitor General Firm: 202-727-3400 441 4th Street, NW One Judiciary Square, Sixth Floor Washington, DC 20001-2714
Loren L. AliKhan, Solicitor General Email: Loren.AliKhan@dc.gov [COR NTC Gvt DC OAG] Office of the Attorney General, District of Columbia Office of the Solicitor General Firm: 202-727-3400 441 4th Street, NW One Judiciary Square, Sixth Floor Washington, DC 20001-2714
Todd Sunhwae Kim Email: tskim@reedsmith.com [COR NTC Gvt DC OAG] Office of the Attorney General, District of Columbia Office of the Solicitor General Firm: 202-727-3400 441 4th Street, NW One Judiciary Square, Sixth Floor Washington, DC 20001-2714
Karl A. Racine [NTC Gvt DC OAG] Office of the Attorney General, District of Columbia Office of the Solicitor General Firm: 202-727-3400 441 4th Street, NW One Judiciary Square, Sixth Floor Washington, DC 20001-2714
Lucy E. Pittman, Assistant Attorney General Direct: 202-727-3881 [COR LD NTC Gvt DC OAG] (see above)
Loren L. AliKhan, Solicitor General [COR NTC Gvt DC OAG]
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5/30/2020
Hanseul Kang, District of Columbia State Superintendent of Education
Defendant - Appellant
------------------------------

16-7076 Docket
(see above)
Todd Sunhwae Kim [COR NTC Gvt DC OAG] (see above)
Karl A. Racine [NTC Gvt DC OAG] (see above)
Lucy E. Pittman, Assistant Attorney General Direct: 202-727-3881 [COR LD NTC Gvt DC OAG] (see above)
Loren L. AliKhan, Solicitor General [COR NTC Gvt DC OAG] (see above)
Todd Sunhwae Kim [COR NTC Gvt DC OAG] (see above)
Karl A. Racine [NTC Gvt DC OAG] (see above)

Lawyers' Committee for Civil Rights Under Law Amicus Curiae for Appellee

AARP

Amicus Curiae for Appellee

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Jon M. Greenbaum, Esquire, Director Direct: 202-662-8315 Email: jgreenbaum@lawyerscommittee.org [COR LD NTC Retained] Lawyers' Committee for Civil Rights Under Law Firm: 202-662-8600 1500 K Street, NW Suite 900 Washington, DC 20005
Iris Yohana Gonzalez, Senior Attorney Direct: 202-434-6289 Email: igonzalez@aarp.org Fax: 855-296-1218 [COR LD NTC Retained] AARP Foundation Firm: 202-434-2060 601 E Street, NW Washington, DC 20049
Jon M. Greenbaum, Esquire, Director Direct: 202-662-8315 [COR LD NTC Retained] (see above)
Kelly Riseden Bagby Direct: 202-434-2103 Email: kbagby@aarp.org Fax: 202-434-6424 [NTC Retained] AARP Foundation Firm: 202-434-2060 601 E Street, NW Washington, DC 20049
Daniel Benjamin Kohrman, Esquire, Senior Attorney Direct: 202-434-2064 Email: dkohrman@aarp.org Fax: 202-434-6424 [NTC Retained] AARP Foundation
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5/30/2020
National Federation of the Blind Amicus Curiae for Appellee
Council of Parent Attorneys and Advocates Amicus Curiae for Appellee
Disability Rights DC at University Legal Services Amicus Curiae for Appellee
Bazelon Center for Mental Health Law Amicus Curiae for Appellee
National Health Law Program Amicus Curiae for Appellee
National Disability Rights Network Amicus Curiae for Appellee
https://ecf.cadc.uscourts.gov/n/beam/servlet/TransportRoom

16-7076 Docket
B4-205 Firm: 202-434-2060 601 E Street, NW Washington, DC 20049
Jon M. Greenbaum, Esquire, Director Direct: 202-662-8315 [COR LD NTC Retained] (see above)
Jon M. Greenbaum, Esquire, Director Direct: 202-662-8315 [COR LD NTC Retained] (see above)
Jon M. Greenbaum, Esquire, Director Direct: 202-662-8315 [COR LD NTC Retained] (see above)
Mary Nell McGarity Clark Direct: 202-547-0198 x107 Email: mclark@uls-dc.org Fax: 202-547-2662 [NTC Retained] University Legal Services, Inc. Firm: 202-547-0198 220 I Street, NE Suite 130 Washington, DC 20002
Jon M. Greenbaum, Esquire, Director Direct: 202-662-8315 [COR LD NTC Retained] (see above)
Ira Burnim Direct: 202-467-5730 Email: irabster@gmail.com [NTC Retained] Bazelon Center for Mental Health Law 1090 Vermont Avenue, NW Suite 220 Washington, DC 20005
Jon M. Greenbaum, Esquire, Director Direct: 202-662-8315 [COR LD NTC Retained] (see above)
Martha Jane Perkins Direct: 919-968-6308 Email: perkins@healthlaw.org Fax: 919-968-8855 [NTC Retained] National Health Law Program 200 North Greensboro Street Suite D-13 Carrboro, NC 27510
Ron Hager Direct: 202-408-9514 Email: ron.hager@ndrn.org [NTC Retained] National Disability Rights Network 900 Second Street, NE Washington, DC 20002-0000

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16-7076 Docket

DL; Tameka Ford, Parent and Next Friend of D.L.; JB; Leah Bland, Parent and Next Friend of JB; FD; Frederick Davy, Parent and Next Friend of FD; Monica Davy, Parent and Next Friend of FD; TF; Angelique Moore, Parent and Next Friend of TF - On their own behalf and on behalf of a class of similarly situated individuals; HW; Timothy Lantry; Arlette Mankemi; Kerianne Piester; TL; Ronald Wisor; XY; Bryan Young; Tammika Young,

Plaintiffs - Appellees

v.

District of Columbia, A Municipal Corporation; Kaya Henderson, Chancellor; Hanseul Kang, District of Columbia State Superintendent of Education,

Defendants - Appellants

------------------------------

Lawyers' Committee for Civil Rights Under Law; AARP; National Federation of the Blind; Council of Parent Attorneys and Advocates; Disability Rights DC at University Legal Services; Bazelon Center for Mental Health Law; National Health Law Program; National Disability Rights Network,

Amici Curiae for Appellee

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16-7076 Docket

06/27/2016

PRIVATE CIVIL CASE docketed. [16-7076] [Entered: 06/27/2016 02:11 PM]

06/27/2016
260 pg, 1.74 MB
06/27/2016
2 pg, 46.1 KB
06/28/2016
220 pg, 1.23 MB
07/27/2016
6 pg, 31.78 KB
07/27/2016
3 pg, 144.23 KB
07/27/2016
6 pg, 18.87 KB
07/27/2016
2 pg, 1.34 MB
07/27/2016
2 pg, 177.71 KB
07/27/2016
3 pg, 11.7 KB
07/27/2016
3 pg, 12.43 KB
07/27/2016
3 pg, 11.83 KB
07/27/2016
175 pg, 1.52 MB
08/11/2016
10 pg, 178.08 KB
08/31/2016
2 pg, 86.26 KB
10/17/2016
74 pg, 165.24 KB
11/03/2016
4 pg, 22.12 KB

NOTICE OF APPEAL [1621856] filed by DC, Deborah Gist and Michelle Rhee seeking review of a decision by the U.S. District Court in 1:05-cv-01437-RCL. Appeal assigned USCA Case Number: 167076. [16-7076] [Entered: 06/27/2016 02:13 PM]
CLERK'S ORDER [1621922] filed directing party to file initial submissions: APPELLANT docketing statement due 07/27/2016. APPELLANT certificate as to parties due 07/27/2016. APPELLANT statement of issues due 07/27/2016. APPELLANT underlying decision due 07/27/2016. APPELLANT deferred appendix statement due 07/27/2016. APPELLANT notice of appearance due 07/27/2016. APPELLANT transcript status report due 07/27/2016. APPELLANT procedural motions due 07/27/2016. APPELLANT dispositive motions due 08/11/2016; directing party to file initial submissions: APPELLEE certificate as to parties due 07/27/2016. APPELLEE entry of appearance due 07/27/2016. APPELLEE procedural motions due 07/27/2016. APPELLEE dispositive motions due 08/11/2016 [16-7076] [Entered: 06/27/2016 03:48 PM]
NOTICE [1622165] received from the Clerk of the U.S. District Court of amended notice of appeal [1622165-2] [16-7076] [Entered: 06/28/2016 05:50 PM]
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES [1627135] filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 07/27/2016 ] [16-7076] (Terris, Bruce) [Entered: 07/27/2016 08:54 AM]
ENTRY OF APPEARANCE [1627138] filed by Bruce J. Terris and co-counsel Todd A. Gluckman, Margaret A. Kohn, Cyrus Mehri on behalf of Appellees Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young. [16-7076] (Terris, Bruce) [Entered: 07/27/2016 08:58 AM]
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES [1627285] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 07/27/2016 ] [16-7076] (Pittman, Lucy) [Entered: 07/27/2016 02:57 PM]
DOCKETING STATEMENT [1627286] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 07/27/2016 ] [16-7076] (Pittman, Lucy) [Entered: 07/27/2016 02:58 PM]
ENTRY OF APPEARANCE [1627288] filed by Lucy E. Pittman and co-counsel Loren L. AliKhan, Todd S. Kim on behalf of Appellants DC, Kaya Henderson and Hanseul Kang. [16-7076] (Pittman, Lucy) [Entered: 07/27/2016 03:00 PM]
STATEMENT OF INTENT REGARDING APPENDIX DEFERRAL [1627292] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 07/27/2016 ] Intent: AppxDeferred [16-7076] (Pittman, Lucy) [Entered: 07/27/2016 03:02 PM]
STATEMENT OF ISSUES [1627294] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 07/27/2016 ] [16-7076] (Pittman, Lucy) [Entered: 07/27/2016 03:02 PM]
TRANSCRIPT STATUS REPORT [1627299] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 07/27/2016 ]. Status of Transcripts: Final - All transcripts needed for the appeal have been completed and received. [16-7076] (Pittman, Lucy) [Entered: 07/27/2016 03:05 PM]
UNDERLYING DECISION IN CASE [1627305] submitted by DC, Kaya Henderson and Hanseul Kang [Service Date: 07/27/2016 ] [16-7076] (Pittman, Lucy) [Entered: 07/27/2016 03:10 PM]
MODIFIED PARTY FILER--NOTICE [1629940] filed by Lawyers' Commitee for Civil Rights Under Law, AARP, National Federation of the Blind, Counci of Attorney Parents and Adovcates, Disability Rights DC at University Legal Services, Bazelon Center for Mental Health, National Health Law Program of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 08/11/2016] [16-7076]-[Edited 08/15/2016 by KRM] (Greenbaum, Jon) [Entered: 08/11/2016 05:28 PM]
CLERK'S ORDER [1632980] filed setting briefing schedule: APPELLANT Brief due 10/17/2016. APPELLEE Brief due on 11/16/2016. AMICUS FOR APPELLEE Brief due 11/23/2016. APPELLANT Reply Brief due 12/07/2016. DEFERRED APPENDIX due 12/14/2016. Final Briefs due 12/28/2016. [167076] [Entered: 08/31/2016 10:15 AM]
APPELLANT BRIEF [1641377] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 10/17/2016 ] Length of Brief: 13,995 words. [16-7076] (Pittman, Lucy) [Entered: 10/17/2016 07:11 PM]
JOINT UNOPPOSED MOTION [1644468] filed to establish briefing schedule filed by DC, Kaya Henderson, Hanseul Kang and Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young Pages: 1-10. [16-7076] (Terris, Bruce) [Entered: 11/03/2016 02:38 PM]

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11/08/2016
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16-7076 Docket
CLERK'S ORDER [1645162] filed granting the parties' joint motion to modify the briefing schedule [1644468-2], The following revised briefing schedule will now apply: APPELLEE Brief due on 12/01/2016. AMICUS FOR APPELLEE Brief due 12/08/2016. APPELLANT Reply Brief due 01/06/2017. DEFERRED APPENDIX due 01/13/2017. Final Briefs due 01/27/2017. [16-7076] [Entered: 11/08/2016 05:05 PM]

11/11/2016
2 pg, 414.64 KB

LETTER [1645655] filed advising of arguing counsel's availability for oral argument filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 11/11/2016 ] [16-7076] (Terris, Bruce) [Entered: 11/11/2016 03:06 PM]

11/16/2016
4 pg, 21.16 KB

MOTION [1646434] filed to assign prior panel (Response to Motion served by mail due on 12/01/2016) filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 11/16/2016 by CM/ECF NDA] Pages: 1-10. [16-7076] (Terris, Bruce) [Entered: 11/16/2016 04:19 PM]

12/01/2016
96 pg, 553.54 KB

APPELLEE BRIEF [1648847] filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 12/01/2016 ] Length of Brief: 13,993 Words. [16-7076] (Terris, Bruce) [Entered: 12/01/2016 03:21 PM]

12/01/2016
8 pg, 22.1 KB

RESPONSE IN OPPOSITION [1648879] filed to motion to assign case to prior panel [1646434-2] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 12/01/2016 by CM/ECF NDA] Length Certification: 1,275 words. [16-7076] (Pittman, Lucy) [Entered: 12/01/2016 04:03 PM]

12/07/2016
10 pg, 50.17 KB

REPLY [1649806] filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young to response [1648879-2] [Service Date: 12/07/2016 by CM/ECF NDA] Length Certification: 1,580 Words. [16-7076] (Terris, Bruce) [Entered: 12/07/2016 03:00 PM]

12/08/2016

ENTRY OF APPEARANCE [1649904] filed by Iris Y. Gonzalez on behalf of Amicus Curiae for Appellee

2 pg, 372.37 KB AARP. [16-7076] (Gonzalez, Iris) [Entered: 12/08/2016 09:38 AM]

12/08/2016
5 pg, 86.64 KB

NOTICE [1649906] filed of intention to participate as amicus curiae [Disclosure Listing: Attached] filed by Iris Y. Gonzalez - AARP [Service Date: 12/08/2016 ] [16-7076] (Gonzalez, Iris) [Entered: 12/08/2016 09:44 AM]

12/08/2016

AMICUS FOR APPELLEE BRIEF [1650079] filed by AARP Iris Y. Gonzalez [Service Date: 12/08/2016 ]

51 pg, 515.18 KB Length of Brief: 6724. [16-7076] (Gonzalez, Iris) [Entered: 12/08/2016 04:34 PM]

12/09/2016
1 pg, 38.71 KB

PER CURIAM ORDER [1650154] filed denying motion to assign case to prior panel [1646434-2]. Before Judges: Rogers and Edwards. [16-7076] [Entered: 12/09/2016 07:15 AM]

01/06/2017

APPELLANT REPLY BRIEF [1654609] filed by DC, Kaya Henderson and Hanseul Kang [Service Date:

41 pg, 158.62 KB 01/06/2017 ] Length of Brief: 6,987 words. [16-7076] (Pittman, Lucy) [Entered: 01/06/2017 05:36 PM]

01/09/2017
1 pg, 41.13 KB

CLERK'S ORDER [1654867] filed scheduling oral argument on Friday, 03/31/2017. [16-7076] [Entered: 01/09/2017 04:15 PM]

01/13/2017
6 pg, 27.67 KB

UNOPPOSED MOTION [1655660] filed to Submit Trial Documents in Electronic Form filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young Length Certification: 497 Words. [16-7076] (Terris, Bruce) [Entered: 01/13/2017 08:53 AM]

01/13/2017

JOINT APPENDIX [1655718] filed by DC, Kaya Henderson and Hanseul Kang. [Volumes: 2] [Service

1269 pg, 60.84 MB Date: 01/13/2017 ] [16-7076] (Pittman, Lucy) [Entered: 01/13/2017 10:39 AM]

01/13/2017

SEALED SUPPLEMENTAL JOINT APPENDIX [1656016] filed by DC, Kaya Henderson and Hanseul Kang. [Volume: 1] [Service Date: 01/13/2017] [16-7076] [Entered: 01/17/2017 11:01 AM]

01/26/2017
96 pg, 544.47 KB

APPELLEE FINAL BRIEF [1657499] filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 01/26/2017 ] Length of Brief: 13,991 Words. [16-7076] (Terris, Bruce) [Entered: 01/26/2017 09:31 AM]

01/26/2017

APPELLANT FINAL BRIEF [1657561] filed by DC, Kaya Henderson and Hanseul Kang [Service Date:

73 pg, 290.41 KB 01/26/2017 ] Length of Brief: 13,833 words. [16-7076] (Pittman, Lucy) [Entered: 01/26/2017 11:09 AM]

01/26/2017
41 pg, 158.7 KB

APPELLANT FINAL REPLY BRIEF [1657562] filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 01/26/2017 ] Length of Brief: 6,966 words. [16-7076] (Pittman, Lucy) [Entered: 01/26/2017 11:11 AM]

01/30/2017
7 pg, 24.06 KB

CONSENT UNOPPOSED MOTION [1658131] filed Limited Remand Under Rule 12.1 to Permit the District Court to Modify its Reporting Schedule or an Order Clarifying the District Court's Jurisdiction to Modify the Schedule While the Appeal is Pending Schedule filed by DC, Kaya Henderson and Hanseul

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01/30/2017
2 pg, 231.11 KB
02/06/2017
3 pg, 15.38 KB
02/06/2017
1 pg, 39.97 KB
02/16/2017
5 pg, 258.14 KB
02/17/2017
97 pg, 1.12 MB
02/27/2017
1 pg, 37.18 KB
03/20/2017
1 pg, 40.77 KB
03/20/2017
03/23/2017
03/31/2017
1 pg, 39.52 KB
06/23/2017
1 pg, 53.84 KB
06/23/2017
30 pg, 119.28 KB
06/23/2017
1 pg, 38.9 KB
07/03/2017
4 pg, 235.74 KB
08/03/2017
1 pg, 39.62 KB
08/03/2017
1 pg, 38.89 KB
08/10/2017

16-7076 Docket
Kang [Service Date: 01/30/2017 ] Length Certification: 978 words. [16-7076] (Pittman, Lucy) [Entered: 01/30/2017 12:13 PM]
ENTRY OF APPEARANCE [1658270] filed by Bruce J. Terris and co-counsel Carolyn Smith Pravlik on behalf of Appellees Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young. [16-7076] (Pravlik, Carolyn) [Entered: 01/30/2017 04:00 PM]
NOTICE [1659612] to withdraw attorney Bruce Jerome Terris who represented Tammika Young, Bryan Young, XY, Ronald Wisor, TL, TF, Kerianne Piester, Angelique Moore, Arlette Mankemi, Timothy Lantry, JB, HW, Tameka Ford, FD, Frederick Davy, Monica Davy, DL and Leah Bland in 16-7076 filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 02/06/2017 ] [16-7076] (Gluckman, Todd) [Entered: 02/06/2017 02:23 PM]
PER CURIAM ORDER [1659654] filed that the motion for limited remand be granted in light of the district court’s indicative order filed December 29, 2016. The record is hereby remanded for the limited purpose of enabling the district court to enter an order modifying its reporting schedule. It is FURTHER ORDERED that this case remain on the court’s March 31, 2017 oral argument calendar, as the court anticipates that the district court will act promptly. In accordance with Fed. R. App. P. 12.1(b), the parties are directed to notify this court immediately following the district court decision on remand. [1658131-2] [16-7076] [Entered: 02/06/2017 03:26 PM]
NOTICE [1661828] Notice of the district court's order following limited remand filed by DC, Kaya Henderson and Hanseul Kang [Service Date: 02/16/2017 ] [16-7076] (Pittman, Lucy) [Entered: 02/16/2017 04:40 PM]
NOTICE - SUPPLEMENTAL RECORD [1662321] received from the Clerk of the U.S. District Court. [167076] [Entered: 02/22/2017 07:41 AM]
PER CURIAM ORDER [1663077] filed granting appellees' unopposed motion to submit trial documents in electronic form [1655660-2] [16-7076] [Entered: 02/27/2017 09:27 AM]
PER CURIAM ORDER [1666741] filed allocating oral argument time as follows: Appellants - 15 Minutes, Appellees - 15 Minutes. One counsel per side to argue; directing party to file Form 72 notice of arguing attorney by 03/24/2017 [16-7076] [Entered: 03/20/2017 11:46 AM]
FORM 72 submitted by arguing attorney, Todd A. Gluckman, on behalf of Appellees Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [16-7076] (Gluckman, Todd) [Entered: 03/20/2017 05:03 PM]
FORM 72 submitted by arguing attorney, Lucy E. Pittman, on behalf of Appellants DC, Kaya Henderson and Hanseul Kang (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [16-7076] (Pittman, Lucy) [Entered: 03/23/2017 05:34 PM]
ORAL ARGUMENT HELD before Judges Tatel, Griffith and Millett. [16-7076] [Entered: 03/31/2017 10:29 AM]
PER CURIAM JUDGMENT [1680992] filed that the judgment of the District Court appealed from in this cause is hereby affirmed in all respects, for the reasons in the accompanying opinion . Before Judges: Tatel, Griffith and Millett. [16-7076] [Entered: 06/23/2017 09:51 AM]
OPINION [1680993] filed (Pages: 30) for the Court by Judge Tatel. [16-7076] [Entered: 06/23/2017 09:53 AM]
CLERK'S ORDER [1680994] filed withholding issuance of the mandate. [16-7076] [Entered: 06/23/2017 09:55 AM]
BILL OF COSTS [1682463] filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 07/03/2017 ] [16-7076] (Gluckman, Todd) [Entered: 07/03/2017 12:37 PM]
PER CURIAM ORDER [1687105] filed granting appellees' bill of costs [1682463-2] in the amount of $130.80. [16-7076] [Entered: 08/03/2017 09:26 AM]
MANDATE ISSUED to Clerk, U.S. District Court. [16-7076] [Entered: 08/03/2017 09:30 AM]
FIRST CLASS MAIL RETURNED [1688374] marked "Return to sender-attempted-not known-unable to forward". Mail had been sent to Attorney Ron Hager for Amicus Curiae for Appellee National Disability Rights Network. [16-7076] [Entered: 08/11/2017 12:02 PM]

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18-7004 Docket

General Docket United States Court of Appeals for District of Columbia Circuit
Court of Appeals Docket #: 18-7004 Nature of Suit: 3440 Other Civil Rights DL, et al v. DC, et al Appeal From: United States District Court for the District of Columbia Fee Status: Fee Paid

Case Type Information: 1) Civil Private 2) Private 3)

Originating Court Information:

District: 0090-1 : 1:05-cv-01437-RCL

Court Reporter: Lisa Foradori, Court Reporter

Court Reporter: Annettee Montalvo, Court Reporter

Court Reporter: Wendy Ricard

Court Reporter: Theresa Sorensen

Court Reporter: William Zaremba, Court Reporter

Trial Judge: Royce C. Lamberth, U.S. Senior District Judge

Date Filed: 07/21/2005

Date Order/Judgment:

Date NOA Filed:

12/15/2017

01/10/2018

Prior Cases: None

Current Cases: None
Panel Assignment: Panel: MBG DST DBS Date of Hearing: 03/19/2019

Date of Decision: 05/21/2019

Date Completed: 05/21/2019

DL Plaintiff - Appellant
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Todd Gluckman, Attorney Direct: 202-204-8482 Email: tgluckman@tpmlaw.com [COR LD NTC Retained] Terris, Pravlik & Millian, LLP Firm: 202-682-2100 1816 12th Street, NW Suite 303 Washington, DC 20009-4422
Cyrus Mehri Direct: 202-822-5100 Email: cmehri@findjustice.com Fax: 202-822-4997 [COR LD NTC Retained] Mehri & Skalet, PLLC Firm: 202-822-5100 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 Email: cpravlik@tpmlaw.com Fax: 202-289-6795 [COR LD NTC Retained] Terris, Pravlik & Millian, LLP Firm: 202-682-2100 1816 12th Street, NW Suite 303 Washington, DC 20009-4422
Margaret A. Kohn

Docketed: 01/17/2018 Termed: 05/21/2019
Lead: 1:05-cv-01437-RCL
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Tameka Ford, Parent and Next Friend of D.L. Plaintiff - Appellant
JB Plaintiff - Appellant
Leah Bland, Parent and Next Friend of JB Plaintiff - Appellant

18-7004 Docket
Direct: 202-544-1200 Email: margaret.kohn07@gmail.com Fax: 202-544-1201 [COR NTC Trial Counsel] Margaret A. Kohn, Attorney at Law Firm: 202-544-1200 619 Pennsylvania Avenue, SE 2nd Floor Washington, DC 20003
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)

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FD

Plaintiff - Appellant

Frederick Davy, Parent and Next Friend of FD Plaintiff - Appellant

Monica Davy, Parent and Next Friend of FD Plaintiff - Appellant

TF Plaintiff - Appellant

18-7004 Docket
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)

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Angelique Moore, Parent and Next Friend of TF Plaintiff - Appellant

HW Plaintiff - Appellant

Timothy Lantry

Plaintiff - Appellant

Arlette Mankemi

Plaintiff - Appellant

18-7004 Docket
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Margaret A. Kohn Direct: 202-544-1200 [COR NTC Trial Counsel] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)

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Kerianne Piester

Plaintiff - Appellant

TL Plaintiff - Appellant

Ronald Wisor

Plaintiff - Appellant

XY Plaintiff - Appellant

Bryan Young

Plaintiff - Appellant

18-7004 Docket
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)

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Tammika Young, On their own behalf and on behalf of a class of similarly situated individuals
Plaintiff - Appellant
v.

18-7004 Docket
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)
Todd Gluckman, Attorney Direct: 202-204-8482 [COR LD NTC Retained] (see above)
Cyrus Mehri Direct: 202-822-5100 [COR LD NTC Retained] (see above)
Carolyn Smith Pravlik, Attorney Direct: 202-204-8475 [COR LD NTC Retained] (see above)

District of Columbia, A Municipal Corporation Defendant - Appellee
Michelle Rhee, Chancellor Terminated: 01/19/2018
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Loren L. AliKhan, Solicitor General Email: Loren.AliKhan@dc.gov [COR NTC Gvt DC OAG] Office of the Attorney General, District of Columbia Office of the Solicitor General Firm: 202-727-3400 441 4th Street, NW One Judiciary Square, Sixth Floor Washington, DC 20001-2714
Lucy E. Pittman, Assistant Attorney General Direct: 202-727-3881 Email: lucy.pittman@dc.gov Fax: 202-741-5925 [COR NTC Gvt DC OAG] Office of the Attorney General, District of Columbia Office of the Solicitor General Firm: 202-727-3400 441 4th Street, NW One Judiciary Square, Sixth Floor Washington, DC 20001-2714
Karl A. Racine [COR NTC Gvt DC OAG] Office of the Attorney General, District of Columbia Office of the Solicitor General Firm: 202-727-3400 441 4th Street, NW One Judiciary Square, Sixth Floor Washington, DC 20001-2714
Caroline S. Van Zile, Deputy Solicitor General Direct: 202-724-6609 Email: caroline.vanzile@dc.gov Fax: 202-741-0649 [COR NTC Gvt DC OAG] Office of the Attorney General for the District of Columbia 441 4th Street, NW Suite 630 South Washington, DC 20001
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Defendant - Appellee

Antwan Wilson, Chancellor Defendant - Appellee

Deborah Gist, District of Columbia State Superintendent of Education Terminated: 01/19/2018
Defendant - Appellee Hanseul Kang, District of Columbia State Superintendent of Education
Defendant - Appellee
------------------------------

18-7004 Docket
Loren L. AliKhan, Solicitor General [COR NTC Gvt DC OAG] (see above)
Lucy E. Pittman, Assistant Attorney General Direct: 202-727-3881 [COR NTC Gvt DC OAG] (see above)
Karl A. Racine [COR NTC Gvt DC OAG] (see above)
Caroline S. Van Zile, Deputy Solicitor General Direct: 202-724-6609 [COR NTC Gvt DC OAG] (see above)
Loren L. AliKhan, Solicitor General [COR NTC Gvt DC OAG] (see above)
Lucy E. Pittman, Assistant Attorney General Direct: 202-727-3881 [COR NTC Gvt DC OAG] (see above)
Karl A. Racine [COR NTC Gvt DC OAG] (see above)
Caroline S. Van Zile, Deputy Solicitor General Direct: 202-724-6609 [COR NTC Gvt DC OAG] (see above)

Public Citizen, Inc.

Amicus Curiae for Appellant

Michael T. Kirkpatrick, Attorney Direct: 202-588-7728 Email: mkirkpatrick@citizen.org Fax: 202-588-7795 [COR NTC Retained] Public Citizen Litigation Group Firm: 202-588-1000 1600 20th Street, NW Washington, DC 20009

United States of America Amicus Curiae for Appellee

Charles Wylie Scarborough Email: charles.scarborough@usdoj.gov [COR NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Office of the Attorney General 950 Pennsylvania Avenue, NW Washington, DC 20530

Howard University School of Law Civil Rights Clinic Amicus Curiae for Appellant

Michael T. Kirkpatrick, Attorney Direct: 202-588-7728 [COR NTC Retained] (see above)

National Health Law Program Amicus Curiae for Appellant

Michael T. Kirkpatrick, Attorney Direct: 202-588-7728

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18-7004 Docket
[COR NTC Retained] (see above)

Washington Lawyers Committee for Civil Rights and Urban Affairs Amicus Curiae for Appellant

Michael T. Kirkpatrick, Attorney Direct: 202-588-7728 [COR NTC Retained] (see above)

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18-7004 Docket

DL; Tameka Ford, Parent and Next Friend of D.L.; JB; Leah Bland, Parent and Next Friend of JB; FD; Frederick Davy, Parent and Next Friend of FD; Monica Davy, Parent and Next Friend of FD; TF; Angelique Moore, Parent and Next Friend of TF; HW; Timothy Lantry; Arlette Mankemi; Kerianne Piester; TL; Ronald Wisor; XY; Bryan Young; Tammika Young, On their own behalf and on behalf of a class of similarly situated individuals,

Plaintiffs - Appellants

v.

District of Columbia, A Municipal Corporation; Antwan Wilson, Chancellor; Hanseul Kang, District of Columbia State Superintendent of Education,

Defendants - Appellees

------------------------------

Public Citizen, Inc.,

Amicus Curiae for Appellant

United States of America,

Amicus Curiae for Appellee

Howard University School of Law Civil Rights Clinic; National Health Law Program; Washington Lawyers Committee for Civil Rights and Urban Affairs,

Amici Curiae for Appellant

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18-7004 Docket

01/17/2018

PRIVATE CIVIL CASE docketed. [18-7004] [Entered: 01/17/2018 02:42 PM]

01/17/2018
144 pg, 1.43 MB

NOTICE OF APPEAL [1713285] seeking review of a decision by the U.S. District Court in 1:05-cv-01437RCL filed by Leah Bland, DL, Frederick Davy, Monica Davy, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young. Appeal assigned USCA Case Number: 18-7004. [18-7004] [Entered: 01/17/2018 02:43 PM]

01/17/2018
2 pg, 46.56 KB

CLERK'S ORDER [1713287] filed directing party to file initial submissions: APPELLANT docketing statement due 02/16/2018. APPELLANT certificate as to parties due 02/16/2018. APPELLANT statement of issues due 02/16/2018. APPELLANT underlying decision due 02/16/2018. APPELLANT deferred appendix statement due 02/16/2018. APPELLANT notice of appearance due 02/16/2018. APPELLANT transcript status report due 02/16/2018. APPELLANT procedural motions due 02/16/2018. APPELLANT dispositive motions due 03/05/2018. Directing party to file initial submissions: APPELLEE certificate as to parties due 02/16/2018. APPELLEE entry of appearance due 02/16/2018. APPELLEE procedural motions due 02/16/2018. APPELLEE dispositive motions due 03/05/2018 [18-7004] [Entered: 01/17/2018 02:47 PM]

02/15/2018
7 pg, 37.61 KB

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES [1718213] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 02/15/2018 ] [18-7004] (Gluckman, Todd) [Entered: 02/15/2018 03:54 PM]

02/15/2018
2 pg, 476.07 KB

DOCKETING STATEMENT [1718214] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 02/15/2018 ] [18-7004] (Gluckman, Todd) [Entered: 02/15/2018 03:57 PM]

02/15/2018
3 pg, 281.81 KB

ENTRY OF APPEARANCE [1718216] filed by Todd A. Gluckman and co-counsel Carolyn Smith Pravlik and Cyrus Mehri on behalf of Appellants Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young. [18-7004] (Gluckman, Todd) [Entered: 02/15/2018 04:01 PM]

02/15/2018
3 pg, 16.98 KB

STATEMENT OF INTENT REGARDING APPENDIX DEFERRAL [1718219] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 02/15/2018 ] Intent: AppxNotDeferred [18-7004] (Gluckman, Todd) [Entered: 02/15/2018 04:03 PM]

02/15/2018
3 pg, 13.87 KB

STATEMENT OF ISSUES [1718221] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 02/15/2018 ] [18-7004] (Gluckman, Todd) [Entered: 02/15/2018 04:05 PM]

02/15/2018
3 pg, 16.4 KB

TRANSCRIPT STATUS REPORT [1718223] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 02/15/2018 ]. Status of Transcripts: Final - No transcripts are needed for the appeal. [18-7004] (Gluckman, Todd) [Entered: 02/15/2018 04:09 PM]

02/15/2018
44 pg, 517.34 KB

UNDERLYING DECISION IN CASE [1718225] submitted by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [18-7004] (Gluckman, Todd) [Entered: 02/15/2018 04:11 PM]

02/16/2018
2 pg, 74.12 KB

ENTRY OF APPEARANCE [1718376] filed by Lucy E. Pittman and co-counsel Stacy L. Anderson and Loren L. AliKhan on behalf of Appellees DC, Hanseul Kang and Antwan Wilson. [18-7004] (Pittman, Lucy) [Entered: 02/16/2018 01:50 PM]

02/16/2018
5 pg, 12.09 KB

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES [1718378] filed by DC, Hanseul Kang and Antwan Wilson [Service Date: 02/16/2018 ] [18-7004] (Pittman, Lucy) [Entered: 02/16/2018 01:54 PM]

03/02/2018
7 pg, 287.48 KB

CONSENT NOTICE [1720438] of intention to participate as amicus curiae [Disclosure Listing: Attached] filed by Public Citizen, Inc., Howard University School of Law Civil Rights Clinic, National Health Law Program, and Washington Lawyers Committee for Civil Rights and Urban Affairs [Service Date: 03/02/2018 ] [18-7004]--[Edited 03/08/2018 by LMF] (Kirkpatrick, Michael) [Entered: 03/02/2018 03:46 PM]

04/11/2018
2 pg, 77.43 KB

CLERK'S ORDER [1726258] filed setting briefing schedule: APPELLANT Brief due 05/21/2018. APPENDIX due 05/21/2018. AMICUS FOR APPELLANT Brief due 05/29/2018. APPELLEE Brief due on 06/28/2018. APPELLANT Reply Brief due 07/12/2018 [18-7004] [Entered: 04/11/2018 05:07 PM]

05/21/2018

APPELLANT BRIEF [1732050] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford,

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78 pg, 667.05 KB

18-7004 Docket
HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 05/21/2018 ] Length of Brief: 12,988 words. [18-7004] (Gluckman, Todd) [Entered: 05/21/2018 08:06 PM]

05/21/2018

2294 pg, 96.05 MB

JOINT APPENDIX [1732051] filed by Tammika Young, Bryan Young, XY, Ronald Wisor, TL, TF, Kerianne Piester, Angelique Moore, Arlette Mankemi, Timothy Lantry, JB, HW, Tameka Ford, FD, DL, Monica Davy, Frederick Davy and Leah Bland. [Volumes: 4] [Service Date: 05/21/2018 ] [18-7004] (Gluckman, Todd) [Entered: 05/21/2018 08:18 PM]

05/23/2018
1 pg, 51.81 KB

LETTER [1732330] sent to counsel concerning the use of uncommon acronyms and abbreviations in briefs. [18-7004] [Entered: 05/23/2018 10:15 AM]

05/25/2018
2 pg, 82.44 KB

LETTER [1732864] informing the Clerk that plaintiffs-appellants are filing a corrected brief pursuant to the Clerk's letter dated May 23, 2018 filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 05/25/2018 ] [18-7004] (Gluckman, Todd) [Entered: 05/25/2018 01:53 PM]

05/25/2018
78 pg, 513.72 KB

CORRECTED APPELLANT BRIEF [1732865] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 05/25/2018 ] Length of Brief: 12,998 words. [18-7004] (Gluckman, Todd) [Entered: 05/25/2018 01:57 PM]

05/29/2018
32 pg, 451.15 KB

AMICUS FOR APPELLANT BRIEF [1733133] filed by Howard University School of Law Civil Rights Clinic, National Health Law Program, Public Citizen, Inc. and Washington Lawyers Committee for Civil Rights and Urban Affairs Council of Parent Attorneys and Advocates, Inc., Animal Legal Defense Fund, Judge David L. Bazelon Center for Mental Health Law, Defenders of Wildlife, Legal Aid Society of the District of Columbia, National Womens Law Center, AARP, AARP Foundation, EPIC [Service Date: 05/29/2018 ] Length of Brief: 3,656 Words. [18-7004] (Kirkpatrick, Michael) [Entered: 05/29/2018 04:56 PM]

06/14/2018
3 pg, 12.92 KB

JOINT UNOPPOSED MOTION [1735925] to extend time to file brief to 07/13/2018 filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young, Tammika Young and DC, Hanseul Kang and Antwan Wilson [Service Date: 06/14/2018 ] Length Certification: 125 Words. [18-7004] (Pittman, Lucy) [Entered: 06/14/2018 02:25 PM]

06/19/2018
1 pg, 38.77 KB

CLERK'S ORDER [1736803] filed granting the joint motion to modify the briefing schedule [1735925-2], The following revised briefing schedule will now apply: APPELLEE Brief due on 07/13/2018. APPELLANT Reply Brief due 08/13/2018 [18-7004] [Entered: 06/19/2018 05:41 PM]

07/13/2018

APPELLEE BRIEF [1740678] filed by DC, Hanseul Kang and Antwan Wilson [Service Date: 07/13/2018 ]

61 pg, 859.23 KB Length of Brief: 10,681 words. [18-7004] (Pittman, Lucy) [Entered: 07/13/2018 11:08 PM]

07/18/2018
2 pg, 16.33 KB

CONSENT LETTER [1741116] advising of arguing counsel's availability for oral argument filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 07/18/2018 ] [18-7004] (Gluckman, Todd) [Entered: 07/18/2018 10:09 AM]

07/20/2018

AMICUS FOR APPELLEE BRIEF [1741754] filed by USA [Service Date: 07/20/2018 ] Length of Brief:

41 pg, 195.05 KB 6,470 Words. [18-7004] (Foster, Sydney) [Entered: 07/20/2018 02:44 PM]

07/27/2018
7 pg, 125.37 KB

MOTION [1742899] to extend time to file brief to 08/22/2018, to exceed brief filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young (Service Date: 07/27/2018 by CM/ECF NDA) Length Certification: 838 Words. [18-7004] (Gluckman, Todd) [Entered: 07/27/2018 02:42 PM]

07/30/2018
1 pg, 37.71 KB

CLERK'S ORDER [1743051] filed suspending Clerk order regarding briefing schedule [1736803-2] [187004] [Entered: 07/30/2018 01:24 PM]

08/10/2018
1 pg, 38.74 KB

PER CURIAM ORDER [1744960] granting appellants’ motion to extend time and exceed the word limit for their reply brief [1742899-2]. Appellants’ reply brief is now due on August 22, 2018 and may not exceed 9,000 words. Before Judges: Henderson, Srinivasan and Katsas. [18-7004] [Entered: 08/10/2018 11:04 AM]

08/22/2018
52 pg, 378.09 KB

APPELLANT REPLY BRIEF [1746961] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 08/22/2018 ] Length of Brief: 8,992 Words. [18-7004] (Gluckman, Todd) [Entered: 08/22/2018 09:54 PM]

09/25/2018
2 pg, 56.14 KB

NOTICE [1752568] to withdraw attorney Sydney A. Foster who represented USA in 18-7004 filed by USA [Service Date: 09/25/2018 ] [18-7004] (Foster, Sydney) [Entered: 09/25/2018 03:03 PM]

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01/18/2019
14 pg, 186.18 KB
01/18/2019
2 pg, 81.02 KB
01/29/2019
2 pg, 42.99 KB
02/05/2019
4 pg, 119.35 KB
02/28/2019
1 pg, 41.56 KB
03/01/2019
03/04/2019
03/04/2019
03/15/2019
21 pg, 280.76 KB
03/19/2019
1 pg, 40.37 KB
04/04/2019
21 pg, 221.26 KB
04/09/2019

18-7004 Docket
UNOPPOSED MOTION [1769275] to schedule oral argument filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 01/18/2019 ] Length Certification: 2,725 Words. [18-7004] (Gluckman, Todd) [Entered: 01/18/2019 04:51 PM]
LETTER [1769277] advising of arguing counsel's availability for oral argument filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, Timothy Lantry, JB, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 01/18/2019 ] [18-7004] (Gluckman, Todd) [Entered: 01/18/2019 04:54 PM]
CLERK'S ORDER [1770697] filed that these related cases no longer be scheduled before the same panel; scheduling oral argument in case No. 18-7004 on Tuesday, 03/19/2019. [18-7004, 18-5095] [Entered: 01/29/2019 10:44 AM]
UNOPPOSED MOTION [1772056] to allocate oral argument time, to participate as amicus curiae filed by USA [Service Date: 02/05/2019 ] Length Certification: 277 words. [18-7004] (Scarborough, Charles) [Entered: 02/05/2019 03:45 PM]
PER CURIAM ORDER [1775408] filed granting the unopposed motion of the United States for leave to participate in oral argument [1772056-2], The following times are allotted for oral argument: Appellant - 15 Minutes, Appellee District of Columbia - 10 Minutes, Amicus Curiae United States of America - 5 Minutes; directing party to file Form 72 notice of arguing attorney by 03/12/2019 [18-7004] [Entered: 02/28/2019 03:48 PM]
FORM 72 submitted by arguing attorney, Charles W. Scarborough, on behalf of Amicus Curiae for Appellee USA (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [18-7004] (Scarborough, Charles) [Entered: 03/01/2019 01:23 PM]
FORM 72 submitted by arguing attorney, Lucy E. Pittman, on behalf of Appellees DC, Hanseul Kang and Antwan Wilson (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [18-7004] (Pittman, Lucy) [Entered: 03/04/2019 10:46 AM]
FORM 72 submitted by arguing attorney, Carolyn Smith Pravlik, on behalf of Appellants Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [18-7004] (Pravlik, Carolyn) [Entered: 03/04/2019 02:27 PM]
LETTER [1777922] pursuant to FRAP 28j advising of additional authorities filed by DC, Hanseul Kang and Antwan Wilson [Service Date: 03/15/2019 ] [18-7004] (Pittman, Lucy) [Entered: 03/15/2019 03:05 PM]
ORAL ARGUMENT HELD before Judges Garland, Tatel and Sentelle. [18-7004] [Entered: 03/19/2019 11:33 AM]
LETTER [1781118] pursuant to FRAP 28j advising of additional authorities filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 04/04/2019 ] [18-7004] (Gluckman, Todd) [Entered: 04/04/2019 01:43 PM]
TRANSCRIPT [1782063] of oral argument [18-7004] [Entered: 04/10/2019 10:31 AM]

05/21/2019
1 pg, 54.68 KB

PER CURIAM JUDGMENT [1788690] filed that the District Courts fee award appealed from in this cause is hereby vacated and the case is remanded for further proceedings, in accordance with the opinion of the court filed herein this date. Before Judges: Garland, Tatel and Sentelle. [18-7004] [Entered: 05/21/2019 10:42 AM]

05/21/2019

OPINION [1788691] filed (Pages: 16) for the Court by Judge Tatel, DISSENTING OPINION (Pages: 4) by

20 pg, 235.47 KB Judge Sentelle [18-7004] [Entered: 05/21/2019 10:44 AM]

05/21/2019
1 pg, 39.17 KB

CLERK'S ORDER [1788692] filed withholding issuance of the mandate. [18-7004] [Entered: 05/21/2019 10:44 AM]

06/03/2019
7 pg, 538.52 KB

BILL OF COSTS [1790695] filed by Leah Bland, Frederick Davy, Monica Davy, DL, FD, Tameka Ford, HW, JB, Timothy Lantry, Arlette Mankemi, Angelique Moore, Kerianne Piester, TF, TL, Ronald Wisor, XY, Bryan Young and Tammika Young [Service Date: 06/03/2019 ] [18-7004] (Gluckman, Todd) [Entered: 06/03/2019 02:13 PM]

06/21/2019

FIRST CLASS MAIL RETURNED [1794744] marked "RTS - Unable to forward". Mail containing copy of opinino had been sent to Attorney Ms. Margaret A. Kohn for Appellants DL, Tameka Ford, JB, Leah Bland, FD, Frederick Davy, Monica Davy, TF and Angelique Moore. [18-7004] [Entered: 06/27/2019 10:33 AM]

07/08/2019
2 pg, 80.75 KB

[AMENDED BY ORDER FILED 7/8/19]--PER CURIAM ORDER [1796137] filed granting appellants' bill of costs [1790695-2] in the amount of $3,067.45. [18-7004]--[Edited 07/10/2019 by AY] [Entered: 07/08/2019

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07/08/2019
1 pg, 38.79 KB
07/08/2019
1 pg, 40.61 KB

01:50 PM]

18-7004 Docket

MANDATE ISSUED to Clerk, U.S. District Court. [18-7004] [Entered: 07/08/2019 01:57 PM]

PER CURIAM ORDER [1796216] filed amending appellants' bill of costs amount [1790695-2] to be amended as follows: $3,567.45. [18-7004] [Entered: 07/08/2019 04:28 PM]

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 USCA Case #18-7004 Document #1788691

Filed: 05/21/2019 Page 1 of 20

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2019

Decided May 21, 2019

No. 18-7004

DL, ET AL., APPELLANTS

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL., APPELLEES

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

Carolyn Smith Pravlik argued the cause for appellants. With her on the briefs were Todd A. Gluckman and Cyrus Mehri. Margaret A. Kohn entered an appearance.
Michael T. Kirkpatrick and Allison M. Zieve were on the brief for amici curiae Public Citizen, Inc., et al., in support of appellants.
Lucy E. Pittman, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Karl A. Racine, Attorney General, and Loren L. AliKhan, Solicitor General. Caroline S. Van Zile, Deputy Solicitor General, entered an appearance.

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Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States of America supporting appellees. With him on the brief was Jessie K. Liu, U.S. Attorney.
Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Senior Circuit Judge SENTELLE.
TATEL, Circuit Judge: When plaintiffs prevail in a civil rights case, the law usually entitles them to recover reasonable attorney’s fees. Federal district judges, whom Congress has tasked with tabulating those fees, frequently find themselves whipsawed between two seemingly discordant instructions: (1) ascertain the hourly rate for lawyers performing similar work “with a fair degree of accuracy” using “specific evidence,” National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1325 (D.C. Cir. 1982), but (2) do so without turning fee calculations into “a second major litigation,” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). To reconcile those directives, district courts often turn to a fee matrix—that is, a chart averaging rates for attorneys at different experience levels. For decades, courts in this circuit have relied on some version of what is known as the Laffey matrix. Created in the 1980s, that matrix is based on a relatively small sample of rates charged by sophisticated federal-court practitioners in the District of Columbia. Litigants have updated the matrix for inflation using an assortment of tools. Recently, however, the United States Attorney’s Office sought to replace this standby with a new default matrix based on data

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for all types of lawyers—not just those who litigate complex federal cases—from the entire metropolitan area—not just the District of Columbia.
In this case, after plaintiffs prevailed in a long-running Individuals with Disabilities Education Act class action, the district court accepted the District of Columbia’s invitation to rely on the USAO’s new matrix in awarding fees. But as we explain below, the new matrix departs from the statutory requirement that reasonable fees be tethered to “rates prevailing in the community” for the “kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C). We therefore vacate the award and remand for the district court to recalculate the hourly rate based on evidence that focuses on fees for attorneys practicing complex federal litigation in the District of Columbia.
I.
We begin by reviewing the elementary principles governing fee-shifting rate calculations and the genealogy of fee matrices in this circuit, and then turn to the history of this particular case.
A.
As Congress enacted a growing number of laws securing civil rights, it confronted a problem: “enforcement would prove difficult” without private lawsuits, and would-be plaintiffs needed skilled lawyers to guide them through the obstacle course of complex litigation. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401 (1968). But those plaintiffs often lacked financial resources “indispensable” to attracting “competent counsel” willing and able to take on defendants of greater means. Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1521 (D.C. Cir. 1988) (en banc) (internal quotation marks and emphasis omitted). So Congress

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turned to fee-shifting provisions, simultaneously “encourag[ing] plaintiffs to bring suit” and allowing those who prevail to finance the cost of legal assistance by recovering fees from the defendant. Mary Frances Derfner & Arthur D. Wolf, 1 Court Awarded Attorney Fees ¶ 5.03, § 7(a) (2018 ed.); accord Piggie Park, 390 U.S. at 402 (“Congress therefore enacted the provision for counsel fees . . . to encourage individuals injured . . . to seek judicial relief . . . .”). “[O]ver 100 separate statutes” now provide “for the award of attorney’s fees.” In re Donovan, 877 F.2d 982, 991 (D.C. Cir. 1989) (internal quotation marks omitted); see also Congressional Research Service, Report 94-970, Awards of Attorneys’ Fees by Federal Courts and Federal Agencies 57–117 (Oct. 22, 2009) (listing them).
The basic formula for calculating an attorney fee award seems straightforward: multiply “the number of hours reasonably exp[e]nded in litigation” by “a reasonable hourly rate or ‘lodestar.’” Cumberland Mountains, 857 F.2d at 1517. The Supreme Court has offered guidance about how to perform that calculation, explaining that “reasonable fees” are those grounded in rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The statute at issue here, the Individuals with Disabilities Education Act (IDEA), codifies that interpretation of “reasonable”: “Fees awarded under [IDEA] shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C).
Implementing this relatively simple definition has proven vexing. See Reed v. District of Columbia, 843 F.3d 517, 521 (D.C. Cir. 2016) (“[D]etermining . . . the prevailing market rate[] is ‘inherently difficult.’” (quoting Eley v. District of

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Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015))). We have operationalized it with a burden-shifting framework: To begin, “a fee applicant bears the burden of establishing entitlement to an award . . . and justifying the reasonableness of the rates.” Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). At that point, the claimed fee “is presumed to be the reasonable fee contemplated by” the statute, and the burden shifts to the defendant to present “equally specific countervailing evidence” if it seeks a different (presumably lower) rate. Id. at 1109 (internal quotation marks omitted).
For either party, a matrix showing the average hourly price tag of comparable lawyers may “provide a useful starting point” in calculating market rates. Id. But because such “matrices are somewhat crude,” the matrix’s proponent usually cannot stop there. Id. Instead, the proponent may point to additional evidence, which can include “surveys to update the matrix; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.” Id. No particular type of evidence can be considered gospel; “evidence of the prevailing market rate can take many forms.” Eley, 793 F.3d at 104 n.5.
The first and most influential matrix in this circuit debuted in Laffey v. Northwest Airlines, Inc., a 1983 Title VII and Equal Pay Act case. 572 F. Supp. 354 (D.D.C. 1983), affirmed in part, reversed in part, 746 F.2d 4 (D.C. Cir. 1984), overruled in part, Cumberland Mountains, 857 F.2d 1516. In those fledgling days—before big data, Google, or a prolific cottage industry dedicated to studying the legal profession—the prevailing plaintiff’s attorney created a fee schedule by “inquir[ing] into the billing rates of firms in Washington, D.C., which [were] engaged in active litigation practice in the federal courts” and

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collecting “affidavits . . . giving specific rate information, supporting and substantiating the rates described.” First Rezneck Affidavit ¶ 9, Laffey v. Northwest Airlines, Inc., No. 1:70-cv-02111-AER (D.D.C. Mar. 17, 1983), Joint Appendix (“J.A.”) 571–72. A star was born. See Eley, 793 F.3d at 100 (describing the Laffey matrix as “[t]he most commonly used fee matrix” in this circuit “for lawyers who practice ‘complex federal litigation’”).
We endorsed the Laffey matrix in Save Our Cumberland Mountains, Inc. v. Hodel. Sitting en banc, we “commend[ed] its use for the year to which it applie[d]” and suggested “the compiling of a similar schedule of prevailing community rates for other relevant years.” Cumberland Mountains, 857 F.2d at 1525. Joseph Yablonski, a Washington, D.C. litigator, answered that call by speaking “with attorneys from” seven major law firms and comparing the rates he “found with the rates set forth in two broad-ranging surveys of hourly rates published in the National Law Journal.” Yablonski Declaration ¶¶ 5–6, Broderick v. Ruder, No. 1:86-cv-01834JHP (D.D.C. 1989), J.A. 624–25. Yablonski’s labors updated Laffey’s rates through 1989. Somewhat confusingly, litigants routinely refer to both the original 1983 matrix and Yablonski’s 1989 update as the “Laffey matrix.”
In the following decades, hourly rate disputes in this circuit often revolved around whether a case was sufficiently complex to warrant Laffey rates, see, e.g., Reed, 843 F.3d at 525–26 (addressing that question in an IDEA case), and, if so, how best to update the Laffey matrix for inflation, see Eley, 793 F.3d at 101 (describing that debate). The USAO maintained one version of the matrix, relying on the original 1983 base data updated through a Bureau of Labor Statistics inflation index that tracks regional price increases in all goods. Id. Some plaintiffs’ attorneys argued that this index failed to capture the

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true rate of inflationary change and began advancing a version of the 1989 Laffey data updated with a different Bureau of Labor Statistics index called the Legal Services Index (LSI), which estimates price increases for the legal market nationwide. Id. at 101–02. When the two were pitted against each other, courts frequently found the LSI Laffey matrix more persuasive. See id. (observing that “critics” of the USAO’s Laffey matrix had “advocated, to some degree of success, for a competing Laffey Matrix . . . that uses the Legal Services Index”); see also Salazar v. District of Columbia, 809 F.3d 58, 65 (D.C. Cir. 2015) (affirming district court’s choice to apply the LSI Laffey matrix over the USAO’s).
Since 2015, however, the USAO has undertaken a major effort to replace the Laffey datasets by using a more current rate survey as the base for a brand new matrix. For those figures, the USAO turned to the annual Survey of Law Firm Economics, published by ALM Legal Intelligence (“ALM”) in conjunction with the National Law Journal. The off-the-rack version of that survey publishes hourly rate data for thousands of lawyers engaged in all types of practice, all over the country. The USAO custom ordered a subset of the 2011 survey’s data covering the “Washington, D.C. metro area,” defined by the Census Bureau to include portions of Virginia, Maryland, and West Virginia. Plaintiffs’ Exhibit 84, DL v. District of Columbia, 1:05-cv-01437-RCL, ECF No. 566-17 (D.D.C. May 21, 2017), J.A. 1573. This tailored dataset summarizes “standard hourly billing rates” for 350 attorneys, yielding average rates hundreds of dollars below those reflected in the LSI Laffey matrix. Id. The USAO intends to update ALM’s 2011 data for inflation using still another index focusing on industry-specific price increases nationwide.
B.
This case began almost fifteen years ago when plaintiffs,

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parents of several children aged three to six, filed suit “alleging a ‘pervasive and systemic’ breakdown in the” District of Columbia’s compliance with IDEA resulting from the District’s failure “to identify large numbers of disabled children and delivering inadequate and delayed [educational] services to many others.” DL v. District of Columbia, 860 F.3d 713, 718 (D.C. Cir. 2017). Following a protracted dispute regarding class certification resulting in two separate trips to this court, extensive motions practice, and two separate bench trials, “the district court issued a 130-page opinion finding the District liable” on most counts and ordered sweeping injunctive relief. Id. at 719–20. We affirmed “in all respects.” Id. at 717.
As plaintiffs had prevailed on the majority of their claims, fee litigation commenced. Although the parties contested many issues in the district court, all but the hourly rate have dropped out on appeal. Plaintiffs sought attorney fees based on the LSI version of the Laffey matrix. The District offered the new USAO matrix as an alternative. Both sides produced a pile of evidence purporting to prove that their matrix better reflects the relevant rates, including affidavits from economists and attorneys; various commercially-available rate surveys; and information regarding fees requested, awarded, and settled on in other cases.
The district court began by finding that both matrices were “presumptively” applicable to “complex federal litigation.” DL v. District of Columbia, 267 F. Supp. 3d 55, 69 (D.D.C. 2017). Comparing the two, however, the court was more persuaded by the USAO’s new matrix, especially its statistically significant sample size and “more narrowly defined” experience categories. Id. at 69–70. Thus, despite plaintiffs’ objection that the data underlying the USAO’s new matrix incorporates rates for non-litigators outside the District, the court ordered plaintiffs to recalculate their fees using the USAO’s rates. Id.

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at 72. Largely as a result of that order (in conjunction with a few minor adjustments unchallenged on appeal), the requested $9.76 million fee dropped to a $6.96 million award. Plaintiffs appeal.
II.
Simply stated, the question before us is whether the district court abused its discretion in determining that the hourly rates in the USAO’s matrix are “reasonable.” Recall that IDEA makes express a requirement that inheres in any statutory provision for “reasonable attorney’s fees”: such fees must be calculated using “rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C); accord Blum, 465 U.S. at 895 n.11 (explaining that this is part of what it means to be “reasonable”). Recall also that once “a fee applicant” has met the preliminary burden of “justifying the reasonableness of the rates,” those rates are “presumed to be . . . reasonable” unless and until the defendant offers “equally specific countervailing evidence” supporting another rate. Covington, 57 F.3d at 1107, 1109 (internal quotation marks omitted). We will reverse a district court’s determination that certain hourly rates are reasonable when there has been a “clear misapplication of legal principles, arbitrary fact finding, or unprincipled disregard for the record evidence.” Kattan ex rel. Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993), as amended (June 30, 1993); see also Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”).
A.
We begin with the District’s argument that plaintiffs failed to meet their initial burden to support with specific evidence

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their claim that the LSI Laffey rates satisfy the statute’s command. Our recent opinion in Salazar v. District of Columbia, however, all but compels the conclusion that plaintiffs cleared that bar. The Salazar plaintiffs relied on the same types of evidence in essentially the same level of detail to support the same rate matrix (for a slightly earlier year). 809 F.3d at 64–65. That evidence, we concluded, was more than enough to pass the burden onto the District. Id. at 65 (“With these numbers and submissions in the record, the district court’s point that the LSI-adjusted matrix is probably a conservative estimate of the actual cost of legal services in this area, does not appear illogical.” (internal quotation marks omitted)). The District has given us no reason to reach a different conclusion on such a similar record.
B.
The meatier question, then, is whether the District satisfied its rebuttal burden. The USAO’s new matrix formed the cornerstone of the rebuttal case, and the district court treated that matrix as “presumptively” applicable. DL, 267 F. Supp. 3d at 69. We are at a loss to understand the basis of that presumption, given that this court had yet to review the new matrix. The proper inquiry, under the applicable legal principles, was whether the District supported its matrix with “equally specific countervailing evidence.” Covington, 57 F.3d at 1109 (internal quotation marks omitted).
The District contends that the USAO’s more recent raw data and statistically significant sample size make its matrix superior to plaintiffs’ favored LSI Laffey matrix. Crucially, however, those traits matter only if the data surveys the relevant population. As plaintiffs’ expert, Dr. Michael Kavanaugh, put it, “comparable prices are found by observing comparable goods.” Second Kavanaugh Declaration ¶ 8, DL v. District of Columbia, 1:05-cv-01437-RCL, ECF No. 566-11

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(Apr. 26, 2017), J.A. 1380. For example, for someone house hunting in Memphis, a survey of real estate prices in Seattle— even one with a perfect response rate updated daily—would be of no use. The same is true here. The USAO’s matrix is helpful only if it canvasses the relevant type of lawyer, which it does not.
To begin with, the USAO’s matrix incorporates rates for the wrong types of practitioner. The parties and the district court agree that this case qualifies as “complex federal litigation.” DL, 267 F. Supp. 3d at 69. Yet rather than confine its data to rates charged by attorneys practicing that genre of litigation—or even just litigators in general—the survey that the USAO drew from incorporates rates from all types of lawyers. Respondents include real estate lawyers, family lawyers, and insurance lawyers—lawyers manifestly not offering “the kind and quality of services furnished” by these plaintiffs’ attorneys, as the statute requires of comparators. 20 U.S.C. § 1415(i)(3)(C); accord Eley, 793 F.3d at 105 (fee analysis should focus on “lawyers . . . doing the same type of litigation” (emphasis omitted)). It is obvious that the rates charged for, say, simple wills are lower than those for complex federal litigation. Worse still, nothing in the record reveals what percentage of respondents in the USAO’s custom crosssection of the ALM data were litigators. For all we know, the number could be anywhere from zero to all 350.
Compounding this first error, the USAO’s custom-ordered dataset surveys lawyers far beyond the “community in which th[is] action . . . arose.” 20 U.S.C. § 1415(i)(C)(3). Plaintiffs brought this case on behalf of District of Columbia residents regarding District of Columbia schools against the District of Columbia. Yet the USAO matrix draws from lawyers who practice in the entire “metro area” as defined by the United States Census Bureau. The phrase “metro area” suggests

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proximity, but—according to the Census Bureau’s definition— that area stretches well beyond the District to cover thousands of square miles over three states, from rural Madison County, Virginia, to the eastern shore of Maryland, back to the foothills of Jefferson County, West Virginia. Needless to say, this case has no connection to most of those areas. Our court has held that ordinarily “the relevant community is the one in which the district court sits.” Donnell v. United States, 682 F.2d 240, 251 (D.C. Cir. 1982). Accordingly, our decisions refer to the relevant community as the District of Columbia. See, e.g., Salazar, 809 F.3d at 64 (discussing “prices for legal services in Washington, D.C.”); Covington, 57 F.3d at 1104 (discussing evidence of rates “in the District of Columbia”). That general rule fits comfortably with the facts of this case. Yet here, more than half the data in the USAO’s customized dataset comes from outside the District of Columbia, see Appellant’s Br. 20, and District counsel acknowledges that it includes data from throughout the three neighboring states, see Oral Arg. Rec. 28:04–28:22. Again, it is obvious, as District counsel recognizes, that fees are lower in rural areas than in the District. See Oral Arg. Rec. 31:04–31:30. Indeed, the District’s own evidence shows that rates for legal services in the District of Columbia are among the highest anywhere. National Law Journal & ALM Legal Intelligence, The Survey of Law Firm Economics, 139–41 (2011 ed.), J.A. 1485–87.
Confronted with these two flaws, the district court said nothing about them, resting exclusively on its statement that the USAO’s matrix was “presumptively applicable.” DL, 267 F. Supp. 3d at 69. In doing so, the court abused its discretion twice over. First, by failing to determine whether the USAO’s matrix satisfies Congress’s statutory baseline, the court committed a “clear misapplication of legal principles.” Kattan, 995 F.2d at 278; see also Koon, 518 U.S. at 100. And second,

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it “disregard[ed] . . . record evidence” that its chosen matrix failed to achieve that baseline. Kattan, 995 F.2d at 278.
Calling in reinforcements, the District points to a growing consensus among the district judges in this circuit that the USAO matrix is superior to Laffey. See, e.g., Lewis v. District of Columbia, No. 1:15-cv-521-JEB, 2018 WL 6308722, at *8 (D.D.C. Dec. 3, 2018) (collecting cases). Many of those cases repeat the district court’s fundamental error here: none finds, based on record evidence, that the new matrix is based on rates for complex federal litigators in the District. See id. at *9 (no response to the plaintiff’s objection that the new USAO matrix “reflects all types of legal services”); Gatore v. United States Department of Homeland Security, 286 F. Supp. 3d 25, 42–43 (D.D.C. 2017) (no response to observation that the USAO’s survey may be “over-inclusive”); Electronic Privacy Information Center v. United States Drug Enforcement Administration, 266 F. Supp. 3d 162, 170–71 (D.D.C. 2017) (no discussion of survey composition); Clemente v. Federal Bureau of Investigation, No. 1:08-cv-1252-BJR, 2017 WL 3669617, at *5 (D.D.C. Mar. 24, 2017) (merely describing the new USAO matrix as “measur[ing] rates in the legal services industry”). Others apparently lacked the benefit of any briefing on the new matrix’s flaws. See, e.g., Wadelton v. Department of State, No. 1:13-cv-412-TSC, 2018 WL 4705793, at *12 (D.D.C. Sept. 30, 2018) (adopting new USAO matrix sua sponte “[a]lthough the parties ha[d] not briefed” it); National Security Counselors v. Central Intelligence Agency, No. 1:11cv-444-BAH, 2017 WL 5633091, at *17 (D.D.C. Nov. 21, 2017) (employing the new USAO matrix after plaintiffs offered “no analysis of the USAO’s newest methodology”). So, even sympathizing with the district court’s appetite for more recent data, we are unpersuaded by its decision to embrace newer but irrelevant figures.

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Despite the evidentiary defects in the record, the District offers an alternative basis for affirming: its supplemental proof demonstrates that the USAO’s matrix accurately reflects complex litigation rates in the District of Columbia. But the district court made no findings about the evidence the District uses to back up that claim, and some of that data appears to be of dubious value. For example, the District’s primary redoubt comprises two sets of nationwide data from the 2014 ALM survey. But it is not at all obvious that these nationwide datasets are useful comparators for rates in the District. See National Law Journal & ALM Legal Intelligence, The Survey of Law Firm Economics 139–41 (2011 ed.), J.A. 1485–87 (showing that rates in the District substantially exceed those in most other jurisdictions). Nonetheless, mindful of the district court’s primary factfinding role, we leave it for that court to assess on remand the impact, if any, of the District’s remaining market evidence and to take further evidence if necessary to arrive at a “reasonable rate.”
C.
The District argues that “even if” we reject the USAO’s new matrix—as we now have—“that does not mean that [plaintiffs] were entitled to rates under the LSI [Laffey] Matrix.” Appellee’s Br. 25. But it offers one and only one argument for rates in between the two: that this court has held that attorneys in IDEA cases should not be compensated at Laffey rates. Id. That argument mischaracterizes our precedent. True, we have held that IDEA cases sometimes fall within a submarket characterized by below-Laffey rates. Reed, 843 F.3d at 525. But such cases involved individual IDEA plaintiffs litigating non-complex cases primarily before an administrative body. See id. (noting individual “IDEA litigants may not have discovery and pre-trial exchanges of the sort found in other federal litigation”); Eley, 793 F.3d at 105 n.6 (discussing “representation in IDEA administrative due

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process hearings” (internal quotation marks omitted)); accord Second Kohn Affidavit ¶¶ 9–17, No. 1:05-cv-01437-RCL, ECF No. 566-5 (D.D.C. Apr. 27, 2017), J.A. 1359–61 (describing typical IDEA case and noting that, “in an even unusually complex individual IDEA case appealed to the district court,” the “full record . . . would typically fit into two banker’s boxes”). Indeed, we have always left open “the possibility that . . . fee applicants may be able to demonstrate that IDEA cases are ‘complex federal litigation’ to which the Laffey Matrix presumptively applies.” Reed, 843 F.3d at 525. And here the district court found that this case qualifies as “complex federal litigation,” DL, 267 F. Supp. 3d at 69, a finding the District has not challenged, see Appellee’s Br. 22 n.8. It therefore may not claim that fees from individualized IDEA actions are appropriate comparators.
To be sure, the district court identified other concerns regarding the LSI Laffey matrix, including (1) the age of the raw data; (2) whether it captures a truly representative sample of complex federal litigators; and (3) the grouping of attorneys into just five experience bands. DL, 267 F. Supp. 3d at 69–70. These observations suggest that as time passes, the Laffey matrix may well—like shoulder pads, eight-tracks, and other ’80s fads before it—be losing its shine. In this particular case, however, the District raised no argument that these issues justify rates somewhere between the two matrices. See Appellee’s Br. 25. Therefore, it has forfeited any such contention. Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019) (“A party forfeits an argument by failing to raise it in his opening brief.”).
D.
One last issue remains: the rates for plaintiffs’ only lawyer who regularly bills fee-paying clients, Cyrus Mehri. We see no reason why the rates that apply to the rest of plaintiffs’ lawyers

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would yield inadequate compensation for Mehri’s services. Plaintiffs contend that Mehri is instead entitled to his usual billing rate, but his sparse affidavit tells little about whether his relatively minimal contributions to the case differ sufficiently from his colleagues’ to warrant a different methodology. Mehri Affidavit, No. 1:05-cv-01437-RCL, ECF No. 537-17 (Sept. 26, 2016), J.A. 428–29 (asserting he “did work related to class certification” and tried to “broker a resolution to this case”). As Eley instructs, the focus is properly on the market rate “charged by for-profit lawyers” for “the same type of litigation.” 793 F.3d at 105. And although stating in his affidavit that he charges the same rate no matter what type of work he performs, Mehri nowhere represents that a client on the market would hire him at that rate for the types of services he performed in this case. Accordingly, the district court did not abuse its discretion by compensating Mehri using the same method as his co-counsel.
III.
Not so long ago, the prevailing belief was that parties would often be able to agree on reasonable attorney’s fees. See Hensley, 461 U.S. at 437 (“Ideally, of course, litigants will settle the amount of a fee.”). We regret that this prophecy has gone unfulfilled and fervently hope that practitioners in this circuit—on both the plaintiff and defense sides of the bar—will work together and think creatively about how to produce a reliable assessment of fees charged for complex federal litigation in the District. In the meantime, however, we must discharge our duty to ensure that the adversarial alternative produces results that respect Congress’s mandates. Because the fee award in this case falls short of that goal, we vacate it and remand for further proceedings consistent with this opinion.
So ordered.

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SENTELLE, Senior Circuit Judge, dissenting: Ambrose Bierce defined a lawyer as “[o]ne skilled in circumvention of the law.” Ambrose Bierce, The Unabridged Devil’s Dictionary 147 (Univ. of Georgia Press 2000). Though I do not suggest that this is an accurate description, I nonetheless would observe that the jurisprudence of IDEA litigation attorney-fee awards well establishes that lawyers and jurists are professionals skilled in complicating the law. The jurisprudential odyssey on this sea began with a rather straightforward mandate from Congress in 20 U.S.C. § 1415(i)(3), a subsection headed “Jurisdiction of district courts; attorney fees.” (Emphasis added.)
More specifically, Congress provided that, “[i]n any action or proceeding brought [under the IDEA provision providing judicial relief], the court, in its discretion, may award reasonable attorneys’ fees as part of the costs.” 20 U.S.C. § 1415(i)(3)(B)(i). While the following subsections provide some limitations and directions for the computation of the award, the basic task created by Congress and placed within the jurisdiction of the district court is a factual determination of the reasonableness of attorneys’ fees to be awarded as part of the costs in IDEA actions. The congressional language would seem to rather straightforwardly call for findings of fact, concerning the reasonableness of attorneys’ fees to be awarded. The district court in the present controversy made such findings which we are now called upon to review.
“[T]he standard governing appellate review of a district court’s finding of [facts] is that set forth in Federal Rule of Civil Procedure 52(a).” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). Rule 52(a) provides that “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous . . . .” Not only would it seem apparent that this is the standard of review we should be applying to the issues before us, it seems especially appropriate where the question is expressly described as within the “jurisdiction of

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district courts” in the enactment creating the right to such a finding. 20 U.S.C. § 1415(i)(3).
Indeed, we have expressly held in previous IDEA class litigation that “[w]e review the district court’s fee award for abuse of discretion, and will not upset its hourly rate determination absent clear misapplication of legal principles, arbitrary factfinding, or unprincipled disregard for the record evidence.” Eley v. District of Columbia, 793 F.3d 97, 103 (D.C. Cir. 2015) (emphasis added) (internal quotation marks and citations deleted). In spite of this standard, in the present case, the majority reviews the district court’s determination of the factual questions before us, not for compliance with Rule 52(a), nor for abuse of discretion, but as if it were a question of law.
The majority asks not whether the district court committed a clear misapplication of legal principles, or arbitrary factfinding, or unprincipled disregard for record evidence, but rather whether the district court’s findings of fact fit within a detailed grid, the Laffey Matrix, which might be construed as a proffer by the prevailing party for findings of fact, but more closely resembles a detailed regulation adopted by some government agency after an appropriate period of notice and comment.
The district court found another matrix to be more factually appropriate. The making of that factual determination, under the law in general and under the governing statute in particular, is the district court’s province. I grant that we as an appellate reviewing court have participated in the establishment of this legislation-like matrix. I further realize that we have the authority to establish precedent binding upon district courts and upon panels of this court such as this one. LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Nonetheless, I

USCA Case #18-7004 Document #1788691

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3
have always understood our authority to make binding precedents to govern matters of law, not findings of fact. The present controversy concerns a matter of fact. This, under the binding precedent of both this circuit and the Supreme Court and the Rules of Civil Procedure is within the discretion of the district court, subject only to the limited review described above.
While not necessary to my dissent, I further note that appellants proffered nothing to convince me that the LSI Matrix preferred by them is inherently more appropriate for the findings required by the district court in this case than the USAO Matrix relied upon in the district court’s findings. Appellants’ argument rests on the proposition that the award should have been based on fees determined by survey of a specific subcategory of attorneys out of the several set forth in their preferred matrix: specifically, practitioners in complex federal litigation in Washington, D.C. The matrix employed by the district court instead considered the rates of a broader sampling of attorneys from a broader geographic area, including not only the District of Columbia, but also adjacent portions of three states. It is not apparent how this was an abuse of discretion of the sort that would make the court’s determination reversible under the standard set forth in the rules and blessed in Anderson v. Bessemer City, and a multitude of other cases.
Appellants seem to argue that the district court’s determination was inconsistent with Congress’s instructions in section 1415(i)(3)(C). That section mandates that an IDEA fee award “shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” It does not mandate that the community should be limited to a “community” defined as only the largest municipality in a region, or to the highest priced professional practicing in that limited community.

USCA Case #18-7004 Document #1788691

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4
As the purpose of Congress in setting forth the general limitations of subsection (C) appears to encourage the determination of a market for assessing the reasonableness of fees, it would seem that an analysis of the fitness of either matrix to that determination could, without violating the standard under which we review factfinding, include reflecting on the reasonableness of persons obtaining legal representation in such a hypothetical market. It might be that those persons would choose the most expensive professionals for the most expensive part of the market. While such conduct might not be unreasonable, neither is it inherently unreasonable that they might choose a less imposing or less expensive attorney who is nonetheless trusted and competent to do the work in the case. It may shock counsel before us to learn, but it is not necessary in every case to have the most specialized or the most expensive counsel in order to receive competent legal services. In any event, it is not arbitrary fact finding for the judge to conduct an analysis of the evidence that is consistent with such supposition. In short, I find no abuse of discretion or other reversible error.
My colleagues disagree. I respectfully dissent.

 
 APPEAL,CLOSED,MEDIATION,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05−cv−01437−RCL

DL et al v. DISTRICT OF COLUMBIA et al Assigned to: Chief Judge Royce C. Lamberth Case in other court: USCA, 11−07153
USCA, 12−07042
USCA, 16−07076
USCA, 18−07004 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 07/21/2005 Date Terminated: 03/31/2013 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

DL

represented by Todd A. Gluckman

TERRIS, PRAVLIK & MILLIAN, LLP

1816 12th Street, NW

Suite 303

Washington, DC 20009−4422

(202) 682−2100

Email: tgluckman@tpmlaw.com

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Alexander R. Karam CLYDE & CO. 1775 Pennsylvania Avenue 4th Floor Washington, DC 20006 (202) 747−5119 Fax: (202) 469−7751 Email: alex.karam@clydeco.us TERMINATED: 05/02/2011

Bruce J. Terris TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009 (202) 682−2100 ext 8476 Fax: (202) 289−6795 Email: bterris@tpmlaw.com TERMINATED: 02/06/2017

Carolyn Smith Pravlik TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009−4422 (202) 682−2100 x8475 Fax: (202) 289−6795 Email: cpravlik@tpmlaw.com ATTORNEY TO BE NOTICED

Cyrus Mehri MEHRI & SKALET, PLLC 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036 (202) 822−5100 Fax: (202) 822−4997 Email: cmehri@findjustice.com

ATTORNEY TO BE NOTICED
Emily Anne Benfer DRINKER BIDDLE & REATH, LLP 1500 K Street, NW Suite 1100 Washington, DC 20005 (202) 204−8483 Email: ebenfer@tpmlaw.com TERMINATED: 02/15/2008
Jane M. Liu TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009 (202) 204−8483 Email: jliu@tpmlaw.com TERMINATED: 11/30/2015
Jeffrey Stuart Gutman GEORGE WASHINGTON UNIVERSITY LAW SCHOOL Public Justice Advocacy Clinic 2000 G Street, NW Washington, DC 20052 (202) 994−5797 Fax: (202) 994−4693 Email: jgutman@law.gwu.edu TERMINATED: 11/19/2014
Kathleen Lillian Millian TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009 (202) 682−2100 Fax: (202) 289−6795 Email: kmillian@tpmlaw.com ATTORNEY TO BE NOTICED
Lauren Seffel SANFORD HEISLER, LLP 1666 Connecticut Avenue, NW Suite 300 Washington, DC 20009 (202) 742−7787 Fax: (202) 742−7776 Email: lseffel@tpmlaw.com TERMINATED: 11/30/2015
Margaret A. Kohn Margaret A. Kohn, Attorney at Law 619 Pennsylvania Ave., SE 2nd Fl Washington, DC 20003 (202) 544−1200 x14 Fax: (202) 544−1201 Email: Margaret.Kohn07@gmail.com ATTORNEY TO BE NOTICED
Sameena Shina Majeed U.S. DEPARTMENT OF JUSTICE Civil Rights Division Housing and Civil Enforcement Section

Plaintiff TAMEKA FORD Parent and Next Friend of D.L.
Plaintiff JB

1800 G Street, NW Suite 7200 Washington, DC 20006 (202) 305−1311 Email: sameena.majeed@usdoj.gov TERMINATED: 09/20/2007
represented by Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
LEAH BLAND Parent and Next Friend of JB

Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
represented by Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Jeffrey Stuart Gutman

Plaintiff OUL TERMINATED: 08/25/2006
Plaintiff ELIZABETH UMANA−LAZO Parent and Next Friend of OUL TERMINATED: 08/25/2006

(See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
represented by Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Margaret A. Kohn

Plaintiff DARWIN LAZO Parent and Next Friend of OUL TERMINATED: 08/25/2006
Plaintiff DC TERMINATED: 08/25/2006
Plaintiff DORIS COCKRELL Parent and Next Friend of DC TERMINATED: 08/25/2006

(See above for address) ATTORNEY TO BE NOTICED
represented by Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
represented by Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
represented by Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FD
Plaintiff FREDERICK DAVY Parent and Next Friend of FD

Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
represented by Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
MONICA DAVY Parent and Next Friend of FD

Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address)

Plaintiff TF

TERMINATED: 11/30/2015
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by Alexander R. Karam (See above for address) TERMINATED: 05/02/2011 LEAD ATTORNEY
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ANGELIQUE MOORE Parent and Next Friend of TF − On their own behalf and on behalf of a class of similarly situated individuals
Plaintiff HW

Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Jeffrey Stuart Gutman (See above for address) TERMINATED: 11/19/2014
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Margaret A. Kohn (See above for address) ATTORNEY TO BE NOTICED
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by HW PRO SE
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011

Plaintiff TIMOTHY LANTRY

Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by TIMOTHY LANTRY PRO SE
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015

Plaintiff ARLETTE MANKEMI
Plaintiff KERIANNE PIESTER

Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by ARLETTE MANKEMI PRO SE
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by KERIANNE PIESTER PRO SE
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik

Plaintiff TL

(See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by TL PRO SE
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007

Plaintiff RONALD WISOR
Plaintiff XY

represented by RONALD WISOR PRO SE
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by XY PRO SE
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address)

Plaintiff BRYAN YOUNG
Plaintiff TAMMIKA YOUNG

ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by BRYAN YOUNG PRO SE
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011 LEAD ATTORNEY
Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by TAMMIKA YOUNG PRO SE

V.
Defendant
DISTRICT OF COLUMBIA A Municipal Corporation

Todd A. Gluckman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander R. Karam (See above for address) TERMINATED: 05/02/2011
Bruce J. Terris (See above for address) TERMINATED: 02/06/2017
Carolyn Smith Pravlik (See above for address) ATTORNEY TO BE NOTICED
Cyrus Mehri (See above for address) ATTORNEY TO BE NOTICED
Jane M. Liu (See above for address) TERMINATED: 11/30/2015
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Lauren Seffel (See above for address) TERMINATED: 11/30/2015
Sameena Shina Majeed (See above for address) TERMINATED: 09/20/2007
represented by Andrew J. Saindon OFFICE OF ATTORNEY GENERAL/DC Public Interest Division/Civil Enforcement Section 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6643 Fax: (202) 730−1470 Email: andy.saindon@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Albert Rezneck OFFICE OF THE D.C. ATTORNEY GENERAL Tax and Finance Section 441 4th Street NW 10th Floor South Washington, DC 20001 (202) 724−7751 Fax: (202) 727−3625 Email: daniel.rezneck@dc.gov LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Honey C. Morton OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6591 Fax: (202) 741−5908 Email: honey.morton@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert C. Utiger DC OFFICE OF THE ATTORNEY GENERAL 441 Fourth Street, NW Washington, DC 20001 (202) 442−5168 Email: robert.utiger@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline B. Hutton OFFICE OF ATTORNEY GENERAL 441 Fourth Street, NW 6th Floor Washington, DC 20001 (202) 724−7854 Email: caroline.hutton@dc.gov TERMINATED: 10/14/2011
Chad Wayne Copeland OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6623 Fax: (202) 741−8880 Email: chad.copeland@dc.gov TERMINATED: 06/11/2019
Eden Ilene Miller OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 Fourth Street, NW Sixth Floor South Washington, DC 20001 (202) 724−6614 Fax: (202) 727−3625 Email: eden.miller@dc.gov TERMINATED: 05/08/2008
Jayme Kantor OFFICE OF THE ATTORNEY GENERAL 441 Fourth Street, NW 6th Floor South Washington, DC 20001 (202) 724−6627

Defendant
CLIFFORD B. JANEY In his official capacity as Superintendent of District of Columbia Public Schools TERMINATED: 12/11/2007

Email: jayme.kantor@dc.gov TERMINATED: 04/21/2009
Matthew Robert Blecher OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 Fourth Street NW Suite 600 South Washington, DC 20001 (202) 442−9774 Fax: (202) 730−0586 Email: matthew.blecher@dc.gov TERMINATED: 10/24/2019
Robert J. Rich U.S. DEPARTMENT OF JUSTICE 4 Constitution Square 150 M Street, NE Room 9.341 Washington, DC 20002 202−305−2748 Fax: 202−514−1005 Email: robert.rich@usdoj.gov TERMINATED: 10/25/2019
Samuel C. Kaplan BOIES, SCHILLER & FLEXNER LLP 1401 New York Avenue, NW Washington, DC 20005 (202) 237−2727 Fax: (202) 237−6131 Email: skaplan@bsfllp.com
Sara Elizabeth Tonnesen OFFICE OF THE ATTORNEY GENERAL Of MARYLAND 200 Saint Paul Place 16th Floor Baltimore, MD 21202 (410) 576−6349 Email: stonnesen@oag.state.md.us TERMINATED: 01/21/2015
Sarah Ann Sulkowski OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6627 Fax: (202) 730−1454 Email: sarah.sulkowski@dc.gov TERMINATED: 05/13/2011
represented by Andrew J. Saindon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Albert Rezneck (See above for address)

Defendant
MICHELLE RHEE Chancellor

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline B. Hutton (See above for address) TERMINATED: 10/14/2011
Chad Wayne Copeland (See above for address) TERMINATED: 06/11/2019
Eden Ilene Miller (See above for address) TERMINATED: 05/08/2008
Robert J. Rich (See above for address) TERMINATED: 10/25/2019
Samuel C. Kaplan (See above for address)
Sarah Ann Sulkowski OFFICE OF THE ATTORNEY GENERAL, DC 441 Fourth Street, NW 6th Floor North Washington, DC 20001 (202) 724−6627 Fax: (202) 730−1454 Email: sarah.sulkowski@dc.gov TERMINATED: 05/13/2011
represented by Andrew J. Saindon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Honey C. Morton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline B. Hutton (See above for address) TERMINATED: 10/14/2011
Chad Wayne Copeland (See above for address) TERMINATED: 06/11/2019
Eden Ilene Miller (See above for address) TERMINATED: 05/08/2008
Jayme Kantor (See above for address) TERMINATED: 04/21/2009
Matthew Robert Blecher (See above for address) TERMINATED: 10/24/2019

Defendant DEBORAH GIST District of Columbia State Superintendent of Education
V.

Robert J. Rich (See above for address) TERMINATED: 10/25/2019
Samuel C. Kaplan (See above for address)
Sara Elizabeth Tonnesen (See above for address) TERMINATED: 01/21/2015
Sarah Ann Sulkowski (See above for address) TERMINATED: 05/13/2011
represented by Andrew J. Saindon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Honey C. Morton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline B. Hutton (See above for address) TERMINATED: 10/14/2011
Chad Wayne Copeland (See above for address) TERMINATED: 06/11/2019
Eden Ilene Miller (See above for address) TERMINATED: 05/08/2008
Jayme Kantor (See above for address) TERMINATED: 04/21/2009
Matthew Robert Blecher (See above for address) TERMINATED: 10/24/2019
Robert J. Rich (See above for address) TERMINATED: 10/25/2019
Samuel C. Kaplan (See above for address) ATTORNEY TO BE NOTICED
Sara Elizabeth Tonnesen (See above for address) TERMINATED: 01/21/2015
Sarah Ann Sulkowski (See above for address) TERMINATED: 05/13/2011

Interested Party UNITED STATES OF AMERICA

represented by Peter C. Pfaffenroth U.S. ATTORNEY'S OFFICE for D.C. Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2513 Fax: (202) 252−2599 Email: peter.pfaffenroth@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/21/2005
07/21/2005 08/03/2005 08/22/2005
08/22/2005 08/25/2005 09/01/2005
09/09/2005 09/12/2005 09/12/2005
09/13/2005 09/20/2005 09/21/2005

# Docket Text
1 COMPLAINT against DISTRICT OF COLUMBIA, CLIFFORD B. JANEY (Filing fee $ 250) filed by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND.(jf, ) (Entered: 07/28/2005)
Summons (3) Issued as to DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (jf, ) (Entered: 07/28/2005)
2 Consent MOTION for Extension of Time to Move or Answer by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Pace, Damon) (Entered: 08/03/2005)
3 ORDER granting 2 Defendant's Motion for Extension of Time to answer or otherwise respond; defendant's time to move or answer is extended to and including September 12, 2005. Signed by Judge Royce C. Lamberth on August 18, 2005. (lcrcl1, ) (Entered: 08/22/2005)
Set/Reset Deadlines: Answer due by 9/12/2005. (mon, ) (Entered: 08/24/2005)
4 NOTICE of Appearance by Eden Ilene Miller on behalf of all defendants (Miller, Eden) (Entered: 08/25/2005)
5 MOTION to Certify Class by DL. (Attachments: # 1 Plaintiffs' Memorandum of Law in Support of Their Motion for Class Certification# 2 Text of Proposed Order Proposed Order# 3 Exhibit Plaintiffs' Exhibit 1# 4 Exhibit Plaintiff's Exhibit 2# 5 Exhibit Plaintiff's Exhibit 3# 6 Exhibit Plaintiffs' Exhibit 4# 7 Exhibit Plaintiffs' Exhibit 5# 8 Exhibit Plaintiffs' Exhibit 6# 9 Exhibit Plaintiffs' Exhibit 7# 10 Exhibit Plaintiffs' Exhibit 8# 11 Exhibit Plaintiffs' Exhibit 9)(Majeed, Sameena) (Entered: 09/01/2005)
6 NOTICE of Correction to Exhibits 1 and 3 to Plaintiffs' Motion for Class Certification by DL re 5 MOTION to Certify Class (Attachments: # 1 Exhibit 1# 2 Exhibit 3)(Majeed, Sameena) (Entered: 09/09/2005)
7 ANSWER to Complaint by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY.(Miller, Eden) (Entered: 09/12/2005)
8 ORDER requiring a Local Rule 16.3 Conference to be held within fifteen (15) days of this date between plaintiffs and defendants; and requiring that within ten (10) days thereafter, a report shall be filed with the Court, along with a proposed scheduling order. Signed by Royce C. Lamberth on 9/12/2005. (lcrcl2, ) (Entered: 09/12/2005)
9 MOTION for Extension of Time to File Response/Reply as to 5 MOTION to Certify Class by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 09/13/2005)
10 Memorandum in opposition to motion re 9 Defendants' Motion for an Extension of Time to Respond to Plantiffs' Motion for Class Certification filed by DL. (Majeed, Sameena) (Entered: 09/20/2005)
11 REPLY to opposition to motion re 9 filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Miller, Eden) (Entered: 09/21/2005)

09/22/2005
09/22/2005 10/07/2005 10/11/2005 10/13/2005 10/28/2005 10/31/2005 10/31/2005 11/10/2005 11/16/2005 11/22/2005 11/22/2005
11/22/2005 11/30/2005
12/08/2005 12/12/2005
12/16/2005

12 ORDER granting Defendants? Motion 9 to Extend Time to Respond to Plaintiffs? Motion 5 to Certify Class. Defendants? time to respond to is extended to and including October 31, 2005. Signed by Judge Royce C. Lamberth on 9/22/05. (lcrcl2, ) (Entered: 09/22/2005)
Set/Reset Deadlines: Defendants' Response to Plaintiffs' motion to certify class is due by 10/31/2005 (mon, ) (Entered: 09/22/2005)
13 MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order Plaintiffs' Proposed Order# 2 Text of Proposed Order Defs' Response to Pls' Proposed Order)(Majeed, Sameena) (Entered: 10/07/2005)
14 ORDER setting schedule. Signed by Judge Royce C. Lamberth on 10/7/05. (lcrcl2, ) (Entered: 10/11/2005)
Set/Reset Deadlines: Motions for protective order due by 10/31/2005. Plaintiffs' Reply to their motion for class certification due by 11/30/2005. (mon, ) (Entered: 10/13/2005)
15 Joint MOTION for Protective Order by DL. (Attachments: # 1 Text of Proposed Order Proposed Protective Order# 2 Exhibit Attachment A)(Majeed, Sameena) (Entered: 10/28/2005)
16 Memorandum in opposition to motion re 5 Class Certification filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 10/31/2005)
17 ORDER granting Joint Motion 15 for Protective Order. Signed by Judge Royce C. Lamberth on 10/31/05. (lcrcl2, ) (Entered: 10/31/2005)
18 MOTION to Dismiss for Lack of Jurisdiction by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 11/10/2005)
19 MOTION to Dismiss Section 504 Claim by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 11/16/2005)
20 Consent MOTION for Extension of Time to Oppose Motions to Dismiss by DL. (Majeed, Sameena) (Entered: 11/22/2005)
21 ORDER granting 20 Plaintiffs' Consent Motion to Amend Scheduling Order. Plaintiffs' Opposition to Defendants' Motion for Dismissal of the Complaint shall be due on December 10, 2005; Plaintiffs' Opposition to Defendants' Motion for Dismissal of Plaintiffs' Claim of a Violation of Section 504 of the Rehabilitation Act shall be due on December 16, 2005. Signed by Judge Royce C. Lamberth on 11/22/05. (lcrcl2, ) (Entered: 11/22/2005)
Set/Reset Deadlines: Plaintiffs' Response to Dispositive Motion by defendants due by 12/10/2005. Responses by plaintiffs' to defendants' motion to dismiss certain claims is due by 12/16/2005 (mon, ) (Entered: 11/23/2005)
22 REPLY to opposition to motion re 5 Class Certification filed by DL. (Attachments: # 1 Exhibit 10# 2 Exhibit 11# 3 Exhibit 12# 4 Exhibit 13# 5 Exhibit 14# 6 Exhibit 15# 9 Exhibit 16 )(Majeed, Sameena) Modified on 12/7/2005 (tg, ). Additional attachment(s) added on 12/7/2005 (tg, ). Version one of this document, with no redactions, has been filed UNDER SEAL. Modified on 1/27/2006 (tg, ). (Entered: 11/30/2005)
23 MOTION to Dismiss Defendant Superintendent Janey by DISTRICT OF COLUMBIA. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 12/08/2005)
24 Memorandum in opposition to re 18 Defendants' Motion to Dismiss the Complaint filed by DL. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 # 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12)(Majeed, Sameena) (Entered: 12/12/2005)
25 Memorandum in opposition to re 19 Defendants' Motion for Dismissal of Plaintiffs' Claim of a Violation of Section 504 of the Rehabilitation Act filed by DL. (Majeed,

12/21/2005 12/22/2005 12/22/2005 01/03/2006
01/04/2006 01/05/2006 01/13/2006 01/17/2006 01/17/2006 01/20/2006
01/20/2006 01/31/2006 02/08/2006

Sameena) (Entered: 12/16/2005)
26 Memorandum in opposition to the defendants motion re 18 to dismiss filed by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND;(FILED UNDER SEAL). (rje) Modified on 12/22/2005 (rje, ). (Entered: 12/22/2005)
27 Consent MOTION for Extension of Time to Oppose Defendants' Motion for Dismissal of Defendant District of Columbia Public Schools Superintendent Clifford Janey by DL. (Majeed, Sameena) (Entered: 12/22/2005)
28 Consent MOTION for Extension of Time to File Response/Reply as to 25 Memorandum in Opposition, 24 Memorandum in Opposition, by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 12/22/2005)
29 REPLY to opposition to motion re 18 Version Two, Redacted, filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Exhibit 1, Blackman Order# 2 Exhibit 2, Griffin Declaration# 3 Exhibit 3, MOA# 4 Exhibit 4, Child Find Reference Guide# 5 Exhibit 5, Redacted (Johnson Declaration with Attachments))(Miller, Eden). Version One of this document, with no redactions, has been filed UNDER SEAL. Modified on 1/3/2006 (tg, ). (Entered: 01/03/2006)
30 Memorandum in opposition to re 23 Defendants' Motion for Dismissal of Defendant District of Columbia Public Schools Superintendent Clifford Janey filed by DL. (Majeed, Sameena) (Entered: 01/04/2006)
31 REPLY to opposition to motion re 19 Section 504 claim filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Miller, Eden) (Entered: 01/05/2006)
32 ORDER granting 27 Motion for Extension of Time to File Opposition, nunc pro tunc, granting 28 Motion for Extension of Time to File Reply, nunc pro tunc. Signed by Judge Royce C. Lamberth on 1/13/06. (lcrcl2, ) (Entered: 01/13/2006)
33 REPLY to opposition to motion re 23 Dismissal of Defendant Superintendent Janey filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Miller, Eden) (Entered: 01/17/2006)
34 (STRICKEN PURSUANT TO ORDER FILED 8/25/2006).....NOTICE of Supplement to Defendants' 12/29/05, Reply by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY re 29 Reply to opposition to 18 Motion, (Attachments: # 1 Exhibit 2A, Declaration of Karen Griffin with Attachments A to D)(Miller, Eden) Modified on 1/18/2006 (tg, ). Modified on 8/28/2006 (rje, ). (Entered: 01/17/2006)
35 MOTION to Strike 33 Reply to opposition to Motion, 34 Notice (Other), Notice (Other) Plaintiffs' Motion to Strike Defendants' Supplement to Their December 29, 2005 Reply to Plaintiffs' Opposition to Defendants' Motion for Dismissal of the Complaint for Failure to Exhaust Administrative Remedies by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 01/20/2006)
36 Consent MOTION for Leave to File a Sur−Reply to Defendants' Motion for Dismissal of the Complaint for Failure to Exhaust Administrative Remedies by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 01/20/2006)
37 Memorandum in opposition to re 35 Motion to Strike Supplement filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 01/31/2006)
38 REPLY to opposition to motion re 35 MOTION to Strike 33 Reply to opposition to Motion, 34 Notice (Other), Notice (Other) Plaintiffs' Motion to Strike Defendants' Supplement to Their December 29, 2005 Reply to Plaintiffs' Opposition to Defendants' Motion for Di smissal of Plaintiffs' Complaint for Failure to Exhaust Administrative Remedies filed by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS

03/28/2006
03/30/2006 03/30/2006 07/10/2006
07/14/2006 07/19/2006
07/25/2006 07/31/2006
08/01/2006 08/03/2006
08/07/2006
08/15/2006

COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 02/08/2006)
39 Joint MOTION for Extension of Time to Complete Discovery by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Scheduling Order)(Majeed, Sameena) (Entered: 03/28/2006)
40 ORDER granting Joint Motion 39 to Amend the Scheduling Order; directing that fact discovery shall close on 9/30/06 and expert discovery shall close 90 days thereafter. Signed by Judge Royce C. Lamberth on 3/30/06. (lcrcl2, ) (Entered: 03/30/2006)
Set/Reset Deadlines: Fact Discovery due by 9/30/2006; expert discovery shall close 90 days thereafter. (mon, ) (Entered: 04/03/2006)
41 MOTION to Compel Defendants' Responses to Plaintiffs' First Set of Requests for Production of Documents by DC, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, LEAH BLAND. (Attachments: # 1 Memorandum of Law# 2 Exhibit Pls. Ex. 1# 3 Exhibit Pls. Ex. 2# 4 Exhibit Pls. Ex. 3# 5 Exhibit Pls. Ex. 4# 6 Exhibit Pls. Ex. 5# 7 Exhibit Pls. Ex. 6# 8 Exhibit Pls. Ex. 7# 9 Exhibit Pls. Ex. 8# 10 Exhibit Pls. Ex. 9)(Majeed, Sameena) (Entered: 07/10/2006)
42 Consent MOTION for Extension of Time to File Response/Reply as to 41 MOTION to Compel Defendants' Responses to Plaintiffs' First Set of Requests for Production of Documents by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 07/14/2006)
43 ORDER granting 42 Motion for Extension of Time to File Response/Reply re 42 Consent MOTION for Extension of Time to File Response/Reply as to 41 MOTION to Compel Defendants' Responses to Plaintiffs' First Set of Requests for Production of Documents; The time of defendants in whichto respond to plaintiffs' motion to compel discovery filed July 10, 2006, is extended to and including July 31, 2006. Signed by Judge Royce C. Lamberth on 7/19/06. (lcrcl1, ) (Entered: 07/19/2006)
Set/Reset Deadlines: Responses due by 7/31/2006 (lin, ) (Entered: 07/25/2006)
44 Memorandum in opposition to re 41 MOTION to Compel Defendants' Responses to Plaintiffs' First Set of Requests for Production of Documents filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A, Index# 3 Exhibit B, Letter# 4 Exhibit C, Chart# 5 Exhibit D, 2nd Chart# 6 Exhibit E, Amos Decl# 7 Exhibit F, 2nd Griffin Decl)(Miller, Eden) (Entered: 07/31/2006)
45 MOTION to Compel Discovery Production of Documents by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A, D Doc Request 110905# 3 Exhibit B, P Resp to D Doc Request 121205)(Miller, Eden) (Entered: 08/01/2006)
46 MOTION for Leave to File Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. (Attachments: # 1 Memorandum of Law in Support of Plaintiffs' Motion for Leave to File their First Amended Complaint for Declaratory and Injunctive Relief# 2 Exhibit Pls' Exhibit 1− First Amended Complaint)(Majeed, Sameena) (Entered: 08/03/2006)
47 Consent MOTION for Extension of Time to File Response/Reply to Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion to Compel by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 08/07/2006)
48 Memorandum in opposition to re 45 MOTION to Compel Discovery Production of Documents filed by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF,

08/17/2006 08/18/2006
08/23/2006 08/25/2006 08/25/2006 08/25/2006 08/25/2006 08/25/2006 08/25/2006 08/25/2006 08/25/2006
08/25/2006
09/11/2006 09/22/2006

ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. (Attachments: # 1 Exhibit Pl. Ex. 1)(Majeed, Sameena) (Entered: 08/15/2006)
49 Memorandum in opposition to re 46 MOTION for Leave to File Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 08/17/2006)
50 REPLY to opposition to motion re 41 MOTION to Compel Defendants' Responses to Plaintiffs' First Set of Requests for Production of Documents filed by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. (Attachments: # 1 Exhibit Pl. Ex. 10# 2 Exhibit Pl. Ex. 11)(Majeed, Sameena) (Entered: 08/18/2006)
51 REPLY to opposition to motion re 45 MOTION to Compel Discovery Production of Documents filed by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY. (Miller, Eden) (Entered: 08/23/2006)
52 ORDER granting 46 Motion for Leave to File an Amended Complaint. Furthermore, the Court will construe the various pending motions to apply to the First Amended Complaint in separate Memorandum Opinions and Orders issued this date. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
53 MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
54 ORDER granting Defendants' Motion 18 to Dismiss. Plaintiffs' Motion 35 to Strike Defendants' Supplement to their Reply is GRANTED and Plaintiffs' Consent Motion 36 to File a Sur−reply is DENIED as MOOT. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
55 MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
56 ORDER denying defendants' Motion 19 to Dismiss Section 504 Claim and defendants' Motion 23 to Dismiss Defendant Superintendent Janey. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
57 MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
58 ORDER granting 5 Motion to Certify Class. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
59 ORDER denying Plaintiffs' ripe motion 41 to compel discovery and defendants' ripe motion 45 to compel discovery, without prejudice to renewed motions filed within 30 days of this date, after the parties:?(1) Consider the impact of today's decisions on class certification and the motions to dismiss, and?(2) Meet and confer, in person, through counsel, and seek to resolve any remaining differences.. Signed by Judge Royce C. Lamberth on 8/25/06. (lcrcl1, ) (Entered: 08/25/2006)
61 AMENDED COMPLAINT against DISTRICT OF COLUMBIA, CLIFFORD B. JANEY filed by HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, FD, FREDERICK DAVY, MONICA DAVY, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND.(tg, ) (Entered: 09/12/2006)
60 ANSWER to the 61 Amended Complaint by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY , (Miller, Eden) Modified on 9/12/2006 (tg, ). (Entered: 09/11/2006)
62 Joint MOTION for Extension of Time to File Renewed Motions to Compel Discovery Responses by OUL, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 09/22/2006)

09/26/2006 09/26/2006 09/28/2006
10/24/2006
10/25/2006 10/25/2006
10/26/2006 10/30/2006 11/15/2006 11/16/2006 12/07/2006
12/07/2006
12/11/2006

63 ORDER granting 62 Motion for Extension of Time to File Renewed Motionsto Compel Discovery Responses, and ordering that parties shall file such renewed motions or a Joint Status Report updating the Court on settlement of this case by October 25, 2006. Signed by Judge Royce C. Lamberth on 9/26/06. (lcrcl2, ) (Entered: 09/26/2006)
Set/Reset Deadlines: Parties Renewed Motions or Joint Status Report due by 10/25/2006. (rje) (Entered: 09/26/2006)
64 Joint MOTION for Extension of Time to Complete Discovery and Amend the Scheduling Order by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 09/28/2006)
65 ***** ENTERED IN ERROR*****ORDER granting 64 parties' Joint Motion to Amend the Scheduling Order for an Extension of Time to Complete Discovery; ORDERING that fact discovery shall close on December 30, 2006; and further ORDERING that expert discovery shall close on March 30, 2006. Signed by Judge Royce C. Lamberth on 10/24/06. (lcrcl2, ) Modified on 10/26/2006 (lcrcl2, ). (Entered: 10/24/2006)
Set/Reset Deadlines: Fact Discovery due by 12/30/2006. (rje) (Entered: 10/25/2006)
66 Joint MOTION for Extension of Time to File Renewed Motions to Compel by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 10/25/2006)
67 ORDER granting 64 parties' Joint Motion to Amend the Scheduling Order for an Extension of Time to Complete Discovery; ORDERING that fact discovery shall close on December 30, 2006; and further ORDERING that expert discovery shall close on March 30, 2007. Signed by Judge Royce C. Lamberth on 10/24/06. (lcrcl2, ) (Entered: 10/26/2006)
Set/Reset Deadlines: Fact Discovery due by 12/30/2006. Expert Discovery due by 3/30/2007. (rje) (Entered: 10/30/2006)
68 ORDER granting 66 Motion for Extension of Time to file renewed motions to compel discovery responses until December 9, 2006. Signed by Judge Royce C. Lamberth on 11/15/2006. (lcrcl1, ) (Entered: 11/15/2006)
Set/Reset Deadlines: Joint Status Report due by 12/9/2006. (rje) (Entered: 11/16/2006)
69 Joint MOTION for Extension of Time to File Renewed Motions to Compel and the Parties' Joint Status Report by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 12/07/2006)
70 JOINT STATUS REPORT by FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Please see Document No. 69 for scanned image). (nmw, ) (Entered: 12/08/2006)
71 ORDER granting 69 Motion for Extension of Time to File Renewed Motions to Compel Discovery Responses. The parties shall file such renewed motions or a Joint Status Report updating the Court on settlement of this case by January 30, 2007. Signed by Judge Royce C. Lamberth on 12/11/2006. (lcrcl1, ) (Entered: 12/11/2006)

12/11/2006
12/11/2006 12/12/2006 01/29/2007
01/29/2007 01/30/2007 03/29/2007
03/29/2007
04/23/2007 04/23/2007 04/23/2007 04/23/2007 06/29/2007

72 Joint MOTION to Amend/Correct Scheduling Order by FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Attachments: # 1 Text of Proposed Order)(Miller, Eden) (Entered: 12/11/2006)
73 ORDER granting 72 Motion to Amend the Scheduling Order. Fact discovery shall close on March 30, 2007 and expert discovery shall close on July 2, 2007. Signed by Judge Royce C. Lamberth on 12/11/2006. (lcrcl1, ) (Entered: 12/11/2006)
Set/Reset Deadlines: Discovery due by 3/30/2007. Expert Discovery due by 7/2/2007. (rje) (Entered: 12/12/2006)
74 Joint MOTION for Extension of Time to File Renewed Motions to Compel Discovery Responses and the Parties' Joint Status Report by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND. (Majeed, Sameena) (Entered: 01/29/2007)
75 ORDER granting 74 Motion for Extension of Time to File Renewed Motions to Compel Discovery Responses. The parties shall file such motions or a Joint Status Report by March 31, 2007. Signed by Judge Royce C. Lamberth on 1/29/2007. (lcrcl1, ) (Entered: 01/29/2007)
Set/Reset Deadlines: Joint Motion due by 3/31/2007 or Joint Status Report due by 3/31/2007. (rje) (Entered: 01/30/2007)
76 Joint MOTION for Extension of Time to Complete Discovery and to Amend the Scheduling Order by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND (Majeed, Sameena) (Entered: 03/29/2007)
77 Joint MOTION for Extension of Time to File Renewed Motions to Compel and Parties' Joint Status Report by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND (Majeed, Sameena) (Entered: 03/29/2007)
78 ORDER granting 77 the parties' Joint Motion to Extend the Time to File Renewed Motions to Compel Discovery Responses is GRANTED; and further ORDERING that parties shall file such renewed motions or a Joint Status Report updating the Court on settlement of this case by June 29, 2007. Signed by Judge Royce C. Lamberth on 4/23/07. (lcrcl2, ) (Entered: 04/23/2007)
79 ORDER GRANTING 76 Motion to Amend Scheduling Order, and ORDERING that fact discovery shall close on June 29, 2007; and further ORDERING that expert discovery shall close on October 1, 2007. Signed by Judge Royce C. Lamberth on 4/23/07. (lcrcl2, ) (Entered: 04/23/2007)
Set/Reset Deadlines: Joint Status Report due by 6/29/2007. (rje) (Entered: 04/23/2007)
Set/Reset Deadlines: Fact Discovery due by 6/29/2007. Expert Discovery due by 10/1/2007. (rje) (Entered: 04/23/2007)
80 Joint MOTION to Amend/Correct Scheduling Order, Motion to Extend Time to File Renewed Motions to Compel Discovery Responses, and Joint Status Report by OUL, ELIZABETH UMANA−LAZO, DARWIN LAZO, DC, DORIS COCKRELL, FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG,

07/05/2007
07/05/2007 08/09/2007 08/09/2007 08/14/2007
09/20/2007
11/08/2007 11/28/2007 11/28/2007 12/05/2007 12/06/2007 12/11/2007 12/20/2007 01/03/2008 01/04/2008

TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, TAMEKA FORD, JB, LEAH BLAND (Majeed, Sameena) (Entered: 06/29/2007)
81 ORDER GRANTING 80 Motion to amend the scheduling order and to extend the time to file renewed motions to compel discovery responses, and ORDERING that: that a Scheduling Conference is scheduled for 9:30 a.m. on August 9, 2007; that fact discovery shall close on December 28, 2007, and that expert discovery shall close on March 28, 2008; and that the parties may have until the close of all discovery to file renewed motions to compel discovery responses. Signed by Judge Royce C. Lamberth on 7/5/07. (lcrcl2, ) (Entered: 07/05/2007)
Set Deadlines/Hearings: Fact Discovery due by 12/28/2007. Expert Discovery due by 3/28/2008. Scheduling Conference set for 8/9/2007 09:30 AM in Courtroom 22A before Judge Royce C. Lamberth. (rje) (Entered: 07/05/2007)
82 SCHEDULING ORDER. Signed by Judge Royce C. Lamberth on 8/9/2007. (lcrcl1, ) Additional attachment(s) added on 8/14/2007 (zhs, ). (Entered: 08/09/2007)
Minute Entry. Proceedings held before Judge Royce C. Lamberth : Scheduling Conference held on 8/9/2007. Order to issue. (Court Reporter Theresa Sorensen.) (lin, ) (Entered: 08/10/2007)
Set Scheduling Order Deadlines:(Fact Discovery due by 12/28/2007, Plaintiff's Expert Report due by 1/29/08, Defendant's Expert Report due by 2/28/08, Status Conference set for 3/10/08, Expert Discovery due by 3/28/08,Summary Judgment motions due by 5/2/2008), Response to Motion for Summary Judgment due by 6/2/2008,Reply to Motion for Summary Judgment due by 7/2/2008,Jury Trial set for 11/3/2008 at 09:30 AM,Pretrial Conference set for at 9/3/2008 04:30 PM,Status Conference set for 11/8/2007 at 09:30 AM in Courtroom 22A before Judge Royce C. Lamberth. (hs,) (Entered: 08/14/2007)
83 NOTICE OF WITHDRAWAL OF APPEARANCE as to FD, FREDERICK DAVY, MONICA DAVY, HW, TIMOTHY LANTRY, ARLETTE MANKEMI, KERIANNE PIESTER, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG, TF, ANGELIQUE MOORE, DL, TAMEKA FORD, JB, LEAH BLAND. Attorney Sameena Shina Majeed terminated. (Majeed, Sameena) (Entered: 09/20/2007)
Minute Entry. Proceedings held before Judge Royce C. Lamberth : Status Conference held on 11/8/2007. (Court Reporter Theresa Sorensen.) (rje) (Entered: 11/08/2007)
84 Consent MOTION for Extension of Time to File Response/Reply to Defendants' First Set of Interrogatories by DL (Terris, Bruce) (Entered: 11/28/2007)
85 MOTION to Substitute Party Defendant by DL (Attachments: # 1 Text of Proposed Order # 2 Exhibit Exhibit 1# 3 Exhibit Exhibit 2# 4 Exhibit Exhibit 3# 5 Exhibit Exhibit 4# 6 Exhibit Exhibit 5)(Terris, Bruce) (Entered: 11/28/2007)
86 ORDER granting 84 Motion for Extension of Time to File Response/Reply. Signed by Judge Royce C. Lamberth on 12/05/2007. (lcrcl2, ) (Entered: 12/05/2007)
Set/Reset Deadlines: Plaintiff's Response due by 1/11/2008 (rje) (Entered: 12/06/2007)
87 ORDER granting 85 Motion to Substitute Party.. Signed by Judge Royce C. Lamberth on 12/11/07. (lcrcl1, ) (Entered: 12/11/2007)
88 Consent MOTION to Amend/Correct 82 Scheduling Order by DL (Attachments: # 1 Text of Proposed Order # 2 August 9, 2007 Scheduling Order)(Terris, Bruce) (Entered: 12/20/2007)
89 ORDER granting 88 Motion to Amend/Correct Scheduling Order. Signed by Judge Royce C. Lamberth on 01/03/2008. (lcrcl2, ) (Entered: 01/03/2008)
Set Deadlines/Hearings: Motion to Compel due by 1/31/2008. Reply to Motion due by 3/1/2008. Summary Judgment motions due by 5/2/2008. Oppositions due by 6/2/2008. Replies due by 6/2/2008. Trial set for 11/3/2008 at 09:30 AM in Courtroom 22A before Judge Royce C. Lamberth. (rje) (Entered: 01/04/2008)

01/31/2008 02/04/2008
02/04/2008 02/05/2008 02/15/2008 02/22/2008 02/27/2008 03/03/2008 03/04/2008 03/10/2008
03/12/2008 03/18/2008 03/18/2008

90 Consent MOTION for Extension of Time to File Plaintiffs' Motion to Compel Discovery Responses by DL (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Terris, Bruce) (Entered: 01/31/2008)
91 MOTION to Compel Defendants' Responses to Plaintiffs' First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs' First Set of Interrogatories by DL (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Plaintiffs' Exhibit A, # 3 Exhibit Plaintiffs' Exhibit B, # 4 Exhibit Plaintiffs' Exhibit C, # 5 Exhibit Plaintiffs' Exhibit D, # 6 Exhibit Plaintiffs' Exhibit E, # 7 Exhibit Plaintiffs' Exhibit F, # 8 Exhibit Plaintiffs' Exhibit G, # 9 Exhibit Plaintiffs' Exhibit H, # 10 Exhibit Plaintiffs' Exhibit I, # 11 Exhibit Plaintiffs' Exhibit J, # 12 Exhibit Plaintiffs' Exhibit K, # 13 Exhibit Plaintiffs' Exhibit L, # 14 Exhibit Plaintiffs' Exhibit M, # 15 Exhibit Plaintiffs' Exhibit N, # 16 Exhibit Plaintiffs' Exhibit O, # 17 Exhibit Plaintiffs' Exhibit P, # 18 Exhibit Plaintiffs' Exhibit Q, # 19 Exhibit Plaintiffs' Exhibit R)(Benfer, Emily) (Entered: 02/04/2008)
92 ORDER granting 90 Motion for Extension of Time to File Plaintiffs' Motion to Compel Discovery Responses. Signed by Judge Royce C. Lamberth on 02/04/2008. (lcrcl1, ) (Entered: 02/04/2008)
Set/Reset Deadlines: Plaintiff's Motions due by 2/5/2008. Defendant's Opposition due by 3/1/2008. (rje) (Entered: 02/05/2008)
93 NOTICE OF WITHDRAWAL OF APPEARANCE as to DL. Attorney Emily Anne Benfer terminated. (Benfer, Emily) (Entered: 02/15/2008)
94 MOTION for Extension of Time to File Opposition, MOTION for Extension of Time to Amend, MOTION for Extension of Time to Complete Discovery, MOTION for Extension of Time to Complete Mediation, MOTION for Extension of Time to File by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Rezneck, Daniel) (Entered: 02/22/2008)
95 MOTION to Compel Discovery by DISTRICT OF COLUMBIA, MICHELLE RHEE, DEBORAH GIST (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, D Doc Request 110905, # 3 Exhibit B, P Response to D Request)(Miller, Eden) (Entered: 02/27/2008)
96 ORDER granting 94 Motion for Extension of Time to File Opposition to Motion to Compel. Signed by Judge Royce C. Lamberth on 03/03/2008. (lcrcl1, ) (Entered: 03/03/2008)
Set/Reset Deadlines: Defendants' opposition due by 3/8/2008 (rje) (Entered: 03/04/2008)
97 Memorandum in opposition to re 91 MOTION to Compel Defendants' Responses to Plaintiffs' First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs' First Set of Interrogatories filed by DISTRICT OF COLUMBIA, MICHELLE RHEE, DEBORAH GIST. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, Defendants' Indices, # 3 Exhibit B, Plaintiffs' General Objections, # 4 Exhibit C, Harris Declaration, # 5 Exhibit D, Kiesler Declaration, # 6 Exhibit E, Younger Declaration, # 7 Exhibit F, G. Johnson Deposition Excerpt, # 8 Exhibit G, Whitaker Deposition Excerpt, # 9 Exhibit H, Gayle Declaration, # 10 Exhibit I, Defendants' Response to Plaintiffs' Exhibit L, # 11 Exhibit J, Defendants' Initial Disclosures, # 12 Exhibit K, Griffin Declaration, # 13 Exhibit L, Washington Post Article re District Emails)(Miller, Eden) (Entered: 03/10/2008)
98 Memorandum in opposition to re 95 MOTION to Compel Discovery filed by DL. (Attachments: # 1 Text of Proposed Order Denying Defendants' Motion to Compel, # 2 Exhibit 1 (Decl. of Margaret A. Kohn))(Terris, Bruce) (Entered: 03/12/2008)
99 REPLY to opposition to motion re 95 MOTION to Compel Discovery filed by DISTRICT OF COLUMBIA, MICHELLE RHEE, DEBORAH GIST. (Miller, Eden) (Entered: 03/18/2008)
100 Consent MOTION for Extension of Time to File Response/Reply as to 91 MOTION to Compel Defendants' Responses to Plaintiffs' First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs' First Set of Interrogatories by DL (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 03/18/2008)

03/25/2008
04/07/2008 05/08/2008 05/27/2008 05/27/2008 06/02/2008 06/02/2008 06/27/2008 06/27/2008 06/27/2008 07/02/2008 07/08/2008
07/14/2008 07/25/2008
07/25/2008 07/25/2008

101 REPLY to opposition to motion re 91 MOTION to Compel Defendants' Responses to Plaintiffs' First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs' First Set of Interrogatories filed by DL. (Attachments: # 1 Exhibit S (Comparison Table), # 2 Exhibit T (E−mail from Eden Miller), # 3 Exhibit U (Letter from Daniel A. Rezneck))(Terris, Bruce) (Entered: 03/25/2008)
MINUTE ORDER granting nunc pro tunc 100 consent Motion for Extension of Time to File Reply. Plaintiff's reply brief due on or before March 25, 2008. Signed by Judge Royce C. Lamberth on 04/07/2008. (lcrcl2, ) (Entered: 04/07/2008)
102 NOTICE OF SUBSTITUTION OF COUNSEL by Jayme Kantor on behalf of DISTRICT OF COLUMBIA, MICHELLE RHEE, DEBORAH GIST Substituting for attorney Eden I. Miller (Kantor, Jayme) (Entered: 05/08/2008)
103 Joint MOTION for Protective Order (Amended) by DISTRICT OF COLUMBIA (Attachments: # 1 Amended Protective Order, # 2 Exhibit A _ Protective Order)(Rezneck, Daniel) (Entered: 05/27/2008)
104 Joint MOTION for Order by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order, # 2 Supplement Letter)(Rezneck, Daniel) (Entered: 05/27/2008)
105 ORDER granting 103 Joint Motion for Amended Protective Order. Signed by Chief Judge Royce C. Lamberth on 06/02/2008. (lcrcl1, ) (Entered: 06/02/2008)
106 ORDER granting 104 Joint Consent Motion for Order to Produce Documents. Signed by Chief Judge Royce C. Lamberth on 06/02/2008. (lcrcl1, ) (Entered: 06/02/2008)
107 MEMORANDUM AND OPINION. Signed by Chief Judge Royce C. Lamberth on 06/27/08. (lcrcl2, ) (Entered: 06/27/2008)
108 ORDER granting in part and denying in part 91 Motion to Compel; denying 95 Motion to Compel. Signed by Chief Judge Royce C. Lamberth on 06/27/08. (lcrcl2, ) (Entered: 06/27/2008)
Set/Reset Deadlines: Defendants' responsive documents due by 7/27/2008. Defendants' Responses due by 8/5/2008. Plaintiffs' request for attorneys' fee and expenses due by 7/7/2008. Defendants' opposition to Plaintiff's request due by 7/17/2008. (rje) (Entered: 06/27/2008)
109 Consent MOTION for Extension of Time to File Plaintiffs' Request for Attorneys' Fees and Expenses by DL (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 07/02/2008)
MINUTE ORDER granting 109 Motion for Extension of Time to File Plaintiffs' Request for Attorneys' Fees and Expenses. Plaintiffs' Request for Attorneys' Fees and Expenses is due on July 25, 2008. Defendants' opposition to Plaintiffs' Request for Attorneys' Fees and Expenses is due on August 13, 2008. Signed by Chief Judge Royce C. Lamberth on 07/08/2008. (lcrcl2, ) (Entered: 07/08/2008)
Set/Reset Deadlines: Plaintiffs' request due by 7/25/2008. Defendants' Opposition due by 8/13/2008. (rje) (Entered: 07/14/2008)
110 MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery by DL (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Plaintiffs' Exhibit 1, # 3 Exhibit Plaintiffs' Exhibit 2, # 4 Exhibit Plaintiffs' Exhibit 3, # 5 Exhibit Plaintiffs' Exhibit 4, # 6 Exhibit Plaintiffs' Exhibit 5, # 7 Exhibit Plaintiffs' Exhibit 6, # 8 Exhibit Plaintiffs' Exhibit 7, # 9 Exhibit Plaintiffs' Exhibit 8, # 10 Exhibit Plaintiffs' Exhibit 9, # 11 Exhibit Plaintiffs' Exhibit 10, # 12 Exhibit Plaintiffs' Exhibit 11)(Terris, Bruce) (Entered: 07/25/2008)
111 Unopposed MOTION clarification of June 27, 2008 Order by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Kantor, Jayme) (Entered: 07/25/2008)
112 MOTION for Partial Reconsideration, MOTION for Order Barring Plaintiffs' Disclosure of Non−Responsive Material for 45 Days by DISTRICT OF COLUMBIA (tg, ) (See Docket Entry number 111 to view document) (Entered: 07/28/2008)

07/31/2008 07/31/2008 07/31/2008 08/06/2008 08/06/2008 08/07/2008 08/07/2008
08/11/2008 08/11/2008
08/12/2008
08/12/2008 08/13/2008
08/13/2008 08/14/2008
08/14/2008 08/15/2008 08/15/2008

113 Consent MOTION for Extension of Time to Comply with Court Order of June 27, 2008 by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Kantor, Jayme) (Entered: 07/31/2008)
114 ORDER granting 111 Motion for Clarification of the Court's June 27, 2008 Order. Signed by Chief Judge Royce C. Lamberth on 07/31/08. (lcrcl2, ) (Entered: 07/31/2008)
115 Joint MOTION to Amend/Correct Scheduling Order (Second) by DL (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 07/31/2008)
MINUTE ORDER granting 113 Motion for Extension of Time. All deadlines in this Court's June 27, 2008 Order are extended until August 15, 2008. Signed by Chief Judge Royce C. Lamberth on 08/06/2008. (lcrcl2, ) (Entered: 08/06/2008)
116 ORDER granting 115 Motion to Amend/Correct Scheduling Order. Signed by Chief Judge Royce C. Lamberth on 08/06/2008. (lcrcl2, ) (Entered: 08/06/2008)
Set/Reset Deadlines: All deadlines in this Courts' 06/27/2008 Order are extended until 8/15/2008. (rje) (Entered: 08/07/2008)
Set/Reset Deadlines: Close of Fact Discovery due by 12/15/2008. Close of Expert Discovery due by 3/16/2009. Plaintiff Rule 26a2 due by 1/26/2009. Defendant Rule 26a2 due by 3/5/2009. Summary Judgment motions due by 4/20/2009. Oppositions due by 5/20/2009. Replies due by 6/20/2009. (rje) (Entered: 08/07/2008)
117 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Fees and Costs by DISTRICT OF COLUMBIA (Utiger, Robert) (Entered: 08/11/2008)
118 Consent MOTION for Extension of Time to Produce a Small Subset of Documents and Certain Certifications Until September 12, 2008 by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, MICHELLE RHEE, DEBORAH GIST (Attachments: # 1 Text of Proposed Order)(Kaplan, Samuel) (Entered: 08/11/2008)
MINUTE ORDER granting 117 Motion for Extension of Time to File Response to Plaintiffs' Motion for Fees and Costs. Defendants shall have up to and including August 20, 2008 in which to file an opposition. Signed by Chief Judge Royce C. Lamberth on 08/12/2008. (lcrcl2, ) (Entered: 08/12/2008)
119 ORDER granting 118 Motion for Extension of Time to Produce a Small Subset of Documents and Certain Certifications Until September 12, 2008. Signed by Chief Judge Royce C. Lamberth on 08/12/2008. (lcrcl2, ) (Entered: 08/12/2008)
120 ENTERED IN ERROR.....MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery, Plaintiffs' Exhibit 5 (Corrected) by DL (Attachments: # 1 Exhibit 5 (Corrected))(Terris, Bruce) Modified on 8/14/2008 (tg, ). (Entered: 08/13/2008)
Set/Reset Deadlines: Defendants' Opposition due by 8/20/2008. (rje) (Entered: 08/13/2008)
NOTICE OF CORRECTED DOCKET ENTRY: re 120 MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery, Plaintiffs' Exhibit 5 (Corrected) was entered in error and counsel was instructed to refile said pleading using the proper ECF event to file an Errata. (tg, ) (Entered: 08/14/2008)
121 ERRATA − Correction to Plaintiffs' Exhibit 5 by DL 110 MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery filed by DL. (Attachments: # 1 Corrected Plaintiffs' Exhibit 5)(Terris, Bruce) (Entered: 08/14/2008)
122 Consent MOTION for Extension of Time to Comply with June 27, 2008 Court Order by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Kantor, Jayme) (Entered: 08/15/2008)
123 Consent MOTION for Extension of Time to TO EXTEND UNTIL AUGUST 22, 2008, THE TIME TO SEARCH AND PRODUCE ALL BUT A SUBSET OF RESPONSIVE E−MAILS by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Kantor, Jayme) (Entered: 08/15/2008)

08/15/2008
08/19/2008 08/20/2008 08/22/2008 08/26/2008 08/28/2008 09/04/2008 09/05/2008 09/11/2008 09/12/2008 09/12/2008 09/15/2008 09/16/2008 09/16/2008
10/15/2008 12/09/2008

124 ORDER granting 122 Motion for Extension of Time to Comply with Court's Order; granting 123 Motion TO EXTEND UNTIL AUGUST 22, 2008, THE TIME TO SEARCH AND PRODUCE ALL BUT A SUBSET OF RESPONSIVE E−MAILS. Signed by Chief Judge Royce C. Lamberth on 08/15/2008. (lcrcl2, ) (Entered: 08/15/2008)
125 NOTICE of Appearance by Alexander R. Karam on behalf of all plaintiffs (Karam, Alexander) (Entered: 08/19/2008)
126 Memorandum in opposition to re 110 MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A)(Utiger, Robert) (Entered: 08/20/2008)
127 Consent MOTION for Extension of Time to Comply with the Court's June 27, 2008 Order by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Kantor, Jayme) (Entered: 08/22/2008)
128 ORDER granting 127 Motion for Extension of Time to Comply with the Court's June 27, 2008 Order. Signed by Chief Judge Royce C. Lamberth on 8/26/08. (lcrcl2, ) (Entered: 08/26/2008)
129 Consent MOTION for Extension of Time to File Response/Reply as to 110 MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 08/28/2008)
130 ORDER granting 129 Motion for Extension of Time to File Reply re 110 MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery. Reply due by 9/16/2008. Signed by Chief Judge Royce C. Lamberth on 9/4/08. (lcrcl2, ) (Entered: 09/04/2008)
Set/Reset Deadlines: Plaintiffs' Reply due by 9/16/2008. (rje) (Entered: 09/05/2008)
131 Consent MOTION for Extension of Time to search, review and produce emails by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order To extend time)(Rezneck, Daniel) (Entered: 09/11/2008)
132 Consent MOTION for Leave to File Excess Pages for Reply Memorandum by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 09/12/2008)
133 NOTICE of Filing of Discovery Certifications in Compliance with Court Order at Docket # 108 by DISTRICT OF COLUMBIA (Attachments: # 1 certifications of document productions)(Kantor, Jayme) (Entered: 09/12/2008)
134 ORDER granting 131 Motion for Extension of Time for completing the review and production or identification on a privilege log of all remaining e−mails to and including October 14, 2008. Signed by Chief Judge Royce C. Lamberth on 9/15/08. (lcrcl2, ) (Entered: 09/15/2008)
Set/Reset Deadlines: Defendants' completing the review and production or identification on a privilege log of all remaining e−mails due by 10/14/2008. (rje, ) (Entered: 09/16/2008)
135 REPLY to opposition to motion re 110 MOTION for Attorney Fees and Out−of−Pocket Expenses for Plaintiffs' Motion to Compel Discovery filed by DL. (Attachments: # 1 Text of Proposed Order − Updated, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21, # 12 Exhibit 22, # 13 Exhibit 23, # 14 Exhibit 24, # 15 Exhibit 25, # 16 Exhibit 26, # 17 Exhibit 27)(Karam, Alexander) (Entered: 09/16/2008)
136 NOTICE of Filing of Certifications in Compliance with Court Order of June 27, 2008 by DISTRICT OF COLUMBIA (Attachments: # 1 Declaration Certification of Massengale, # 2 Declaration Certification of Mancini)(Kantor, Jayme) (Entered: 10/15/2008)
137 Joint MOTION to Amend/Correct 116 Order on Motion to Amend/Correct Scheduling Order by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 12/09/2008)

12/17/2008 12/22/2008
03/11/2009 03/11/2009 04/21/2009 04/21/2009 04/23/2009 04/28/2009 04/28/2009
05/15/2009 05/19/2009 05/26/2009 05/29/2009 06/02/2009
08/20/2009 08/20/2009 08/21/2009
08/24/2009 08/26/2009

138 ORDER granting 137 Motion to Amend/Correct. Signed by Chief Judge Royce C. Lamberth on 12/16/08. (lcrcl2, ) (Entered: 12/17/2008)
Set/Reset Deadlines: Close of Fact Discovery due by 3/16/2009. Plaintiff Rule 26a2 due by 4/27/2009. Defendant Rule 26a2 due by 6/8/2009. Close of Expert Discovery due by 8/7/2009. Summary Judgment motions due by 9/7/2009. Oppositions due by 10/7/2009. (rje) (Entered: 12/22/2008)
139 MEMORANDUM OPINION. Signed by Chief Judge Royce C. Lamberth on 3/11/2009. (lcrcl1, ) (Entered: 03/11/2009)
140 ORDER granting in part and denying in part 110 Motion for Attorney Fees; granting 132 Motion for Leave to File Excess Pages. Signed by Chief Judge Royce C. Lamberth on 3/11/2009. (lcrcl1, ) (Entered: 03/11/2009)
141 NOTICE of Appearance by Sarah Ann Sulkowski on behalf of DISTRICT OF COLUMBIA (Sulkowski, Sarah) (Entered: 04/21/2009)
142 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Jayme Kantor terminated. (Sulkowski, Sarah) (Entered: 04/21/2009)
143 Joint MOTION to Amend/Correct 138 Order on Motion to Amend/Correct by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 04/23/2009)
144 ORDER granting 143 Motion to Amend/Correct. Signed by Chief Judge Royce C. Lamberth on 4/27/09. (lcrcl2, ) (Entered: 04/28/2009)
Set/Reset Deadlines: Expert Discovery due by 8/21/2009. Summary Judgment motions due by 9/21/2009. Opposition to Motion for Summary Judgment due by 10/21/2009. Reply to Motion for Summary Judgment due by 11/23/2009. (rje) (Entered: 04/28/2009)
145 MOTION for Extension of Time to Serve Expert Reports by DISTRICT OF COLUMBIA (Sulkowski, Sarah) (Entered: 05/15/2009)
146 Memorandum in opposition to re 145 MOTION for Extension of Time to Serve Expert Reports filed by DL. (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 05/19/2009)
147 REPLY to opposition to motion re 145 MOTION for Extension of Time to Serve Expert Reports filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A: Supplemental Interrogatory Response)(Sulkowski, Sarah) (Entered: 05/26/2009)
148 ORDER granting 145 Motion for Extension of Time to File Expert Reports. Signed by Chief Judge Royce C. Lamberth on 5/29/09. (lcrcl2, ) (Entered: 05/29/2009)
Set/Reset Deadlines: Defendant's Expert Report due by 8/21/2009. Plaintifff's Expert Rebuttal Report due 9/21/2009. Expert Discovery due by 10/21/2009. Summary Judgment motions due by 11/20/2009. Oppositions to Motion for Summary Judgment due by 12/21/2009. Replies to Motion for Summary Judgment due by 1/20/2010. (rje) (Entered: 06/02/2009)
149 Consent MOTION for Extension of Time to Serve Expert Reports by DISTRICT OF COLUMBIA (Sulkowski, Sarah) (Entered: 08/20/2009)
150 ORDER granting 149 Motion for Extension of Time. Signed by Chief Judge Royce C. Lamberth on 8/20/09. (lcrcl2, ) (Entered: 08/20/2009)
Set/Reset Deadlines: Defendant Rule 26a2 due by 9/14/2009. Plaintiff Expert Rebuttal due by 10/14/2009. Expert Discovery due by 11/13/2009. Summary Judgment motions due by 12/14/2009. Oppositions to Motion for Summary Judgment due by 1/13/2010. Replies to Motion for Summary Judgment due by 2/12/2010. (rje) (Entered: 08/21/2009)
151 MOTION for Protective Order by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A, Deposition Notice)(Sulkowski, Sarah) (Entered: 08/24/2009)
152 Memorandum in opposition to re 151 MOTION for Protective Order filed by DL. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3,

08/26/2009
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10/02/2009
10/09/2009 10/20/2009 10/29/2009 10/29/2009 10/29/2009

# 5 Exhibit 4, # 6 Exhibit 5)(Karam, Alexander) (Entered: 08/26/2009)
153 MOTION to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports by DL (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Karam, Alexander) (Entered: 08/26/2009)
154 REPLY to opposition to motion re 151 MOTION for Protective Order filed by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) (Entered: 09/02/2009)
155 Memorandum in opposition to re 153 MOTION to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports filed by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) (Entered: 09/02/2009)
156 ENTERED IN ERROR.....Memorandum in opposition to re 153 MOTION to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports (Proposed Order) filed by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) Modified on 9/3/2009 (rdj). (Entered: 09/02/2009)
157 ENTERED IN ERROR.....Memorandum in opposition to re 153 MOTION to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports (Corrected Proposed Order) filed by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) Modified on 9/3/2009 (rdj). (Entered: 09/02/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 156 Memorandum in Opposition, 157 Memorandum in Opposition, was entered in error and counsel was instructed to refile said pleading using the correct event. (rdj) (Entered: 09/03/2009)
158 NOTICE of Proposed Order by DISTRICT OF COLUMBIA re 155 Memorandum in Opposition (Sulkowski, Sarah) (Entered: 09/03/2009)
159 REPLY to opposition to motion re 153 MOTION to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports filed by DL. (Karam, Alexander) (Entered: 09/08/2009)
160 Consent MOTION to Amend/Correct Scheduling Order by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 09/14/2009)
161 MOTION for Leave to File Supplemental Brief in Support of Plaintiffs' Motion to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports by DL (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 (Supplemental Brief))(Karam, Alexander) (Entered: 09/17/2009)
162 Memorandum in opposition to re 161 MOTION for Leave to File Supplemental Brief in Support of Plaintiffs' Motion to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports filed by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) (Entered: 09/28/2009)
163 REPLY to opposition to motion re 161 MOTION for Leave to File Supplemental Brief in Support of Plaintiffs' Motion to Compel Deposition of Defendants' Expert Prior to Deadline for Plaintiffs' Expert Rebuttal Reports filed by DL. (Karam, Alexander) (Entered: 10/02/2009)
164 NOTICE by DL re 160 Consent MOTION to Amend/Correct Scheduling Order (Karam, Alexander) (Entered: 10/09/2009)
165 Consent MOTION to Stay Deadlines by DISTRICT OF COLUMBIA (Sulkowski, Sarah) (Entered: 10/20/2009)
166 ORDER denying plaintiffs' Motion 161 for Leave to File a Supplemental Brief. Signed by Chief Judge Royce C. Lamberth on 10/29/2009. (lcrcl2, ) (Entered: 10/29/2009)
167 ORDER denying defendants' Motion 151 for Protective Order and granting plaintiffs' Motion 153 to Compel. Signed by Chief Judge Royce C. Lamberth on 10/29/2009. (lcrcl2, ) (Entered: 10/29/2009)
168 ORDER denying as moot plaintiffs' Motion 160 to Amend the Scheduling Order. Signed by Chief Judge Royce C. Lamberth on 10/29/2009. (lcrcl2, ) (Entered: 10/29/2009)

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04/19/2010

169 ORDER denying defendants' Consent Motion 165 to Stay Deadlines as moot. Signed by Chief Judge Royce C. Lamberth on 11/2/2009. (lcrcl2, ) (Entered: 11/02/2009)
170 Joint MOTION to Amend/Correct to Set New Pretrial Deadlines and Plaintiffs' Opposed Motion to Set Pretrial Conference and Trial Dates by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 12/17/2009)
171 ORDER granting the parties' Joint Motion 170 to Set New Pretrial Deadlines and denying plaintiffs' Motion to Set Pretrial and Trial Dates. The following schedule shall apply to this matter: Expert Discovery is to close by February 4, 2010; Summary Judgment Motions are due by March 8, 2010; Oppositions to Summary Judgment are due by April 5, 2010; Replies to Summary Judgment Motions are due by April 19, 2010. Signed by Chief Judge Royce C. Lamberth on 12/22/2009. (lcrcl2) (Entered: 12/22/2009)
Set/Reset Deadlines: Expert Discovery due by 2/4/2010. Summary Judgment motions due by 3/8/2010. Oppositions to Motion for Summary Judgment due by 4/5/2010. Replies to Motion for Summary Judgment due by 4/19/2010. (rje ) (Entered: 12/28/2009)
172 MOTION for Mediation : Plaintiffs' Opposed Motion for an Order Appointing a Magistrate Judge as Mediator and Compelling the Parties to Participate in Mediation by DL (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A (Freund Report), # 3 Exhibit B (Dunst Report Excerpt), # 4 Exhibit C (Freund Dep Excerpt))(Karam, Alexander) (Entered: 01/11/2010)
173 Memorandum in opposition to re 172 MOTION for Mediation : Plaintiffs' Opposed Motion for an Order Appointing a Magistrate Judge as Mediator and Compelling the Parties to Participate in Mediation filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Sulkowski, Sarah) (Entered: 01/26/2010)
174 REPLY to opposition to motion re 172 MOTION for Mediation : Plaintiffs' Opposed Motion for an Order Appointing a Magistrate Judge as Mediator and Compelling the Parties to Participate in Mediation filed by DL. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F)(Karam, Alexander) (Entered: 02/04/2010)
175 Consent MOTION for Extension of Time to File Summary Judgment Motions by DISTRICT OF COLUMBIA (Sulkowski, Sarah) (Entered: 02/23/2010)
176 ORDER granting defendants' Consent Motion 175 to Extend Time to File Summary Judgment Motions. Signed by Chief Judge Royce C. Lamberth on 3/5/2010. (lcrcl2, ) (Entered: 03/05/2010)
Set/Reset Deadlines: Summary Judgment motions due by 3/22/2010. Response to Motion for Summary Judgment due by 4/19/2010. Reply to Motion for Summary Judgment due by 5/3/2010. (rje) Modified on 3/11/2010 (zrje, ). (Entered: 03/09/2010)
177 First MOTION for Summary Judgment by DISTRICT OF COLUMBIA (Sulkowski, Sarah) (Entered: 03/22/2010)
178 MOTION for Partial Summary Judgment on Liability by DL (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44)(Karam, Alexander) (Entered: 03/22/2010)
179 Memorandum in opposition to re 177 First MOTION for Summary Judgment filed by DL. (Attachments: # 1 Text of Proposed Order, # 2 Response to Statement of Facts)(Karam, Alexander) (Entered: 04/19/2010)

04/19/2010 04/19/2010 04/27/2010 05/05/2010
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06/17/2010
06/23/2010

180 Memorandum in opposition to re 178 MOTION for Partial Summary Judgment on Liability filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sulkowski, Sarah) (Entered: 04/19/2010)
181 MOTION to Strike by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Sulkowski, Sarah) (Entered: 04/19/2010)
182 Consent MOTION to Amend/Correct 176 Order on Motion for Extension of Time to File and for Additional Time to Oppose Defendants' Motion to Strike by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 04/27/2010)
MINUTE ORDER. It is hereby ORDERED that Plaintiffs' Consent Motion to Amend the Scheduling Order and for Additional Time to Oppose Defendants' Motion to Strike is GRANTED; and it is further ORDERED that the following schedule shall apply to this matter:Replies to Summary Judgment Motions: May 19, 2010Opposition to Defendants' Motion to Strike: May 19, 2010. Signed by Chief Judge Royce C. Lamberth on May 5, 2010.(lcrcl4) (Entered: 05/05/2010)
Set/Reset Deadlines: Opposition due by 5/19/2010. (rje, ) (Entered: 05/06/2010)
183 REPLY to opposition to motion re 178 MOTION for Partial Summary Judgment on Liability filed by DL. (Attachments: # 1 Statement of Facts : Plaintiffs' Reply to Defendants' Statement of Disputed Facts, # 2 Exhibit 45, # 3 Exhibit 46, # 4 Exhibit 47, # 5 Exhibit 48, # 6 Exhibit 49, # 7 Exhibit 50)(Karam, Alexander) (Entered: 05/19/2010)
184 Memorandum in opposition to re 181 MOTION to Strike filed by DL. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Karam, Alexander) (Entered: 05/19/2010)
185 REPLY to opposition to motion re 177 First MOTION for Summary Judgment filed by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) (Entered: 05/19/2010)
186 NOTICE OF FILING REDACTED DOCUMENT to 184 Memorandum in Opposition, 178 MOTION for Partial Summary Judgment on Liability by DL (The original PDF Document contained privacy information and was restricted pursuant to the E−Government Act.) (Karam, Alexander) (Entered: 05/20/2010)
187 SEALED Exhibit 11 to #178 filed by DL. (This document is SEALED and only available to authorized persons.)(rdj) (Entered: 05/21/2010)
188 SEALED Exhibits to #184 filed by DL. (This document is SEALED and only available to authorized persons.)(Exhibit A) (Attachments: # 1 Exhibit B, # 2 Exhibit G (part 1 of 4), # 3 Exhibit G (part 2 of 4), # 4 Exhibit G (part 3 of 4), # 5 Exhibit G (part 4 of 4))# 6 Exhibit H)(zrdj) : (zrdj, ). (Entered: 05/21/2010)
189 Consent MOTION for Order Scheduling Oral Argument on Pending Summary Judgment Motions by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 05/26/2010)
190 REPLY to opposition to motion re 181 MOTION to Strike filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A)(Sulkowski, Sarah) (Entered: 06/01/2010)
191 MOTION for Leave to File Sur−Reply Brief in Reponse to Defendants' Reply in Support of Motion to Strike (Doc. No. 190) by DL (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 − Sur−Reply Brief, # 3 Exhibit J to Sur−Reply Brief, # 4 Exhibit K to Sur−Reply Brief, # 5 Exhibit L to Sur−Reply Brief)(Karam, Alexander) (Entered: 06/11/2010)
192 Memorandum in opposition to re 191 MOTION for Leave to File Sur−Reply Brief in Reponse to Defendants' Reply in Support of Motion to Strike (Doc. No. 190) MOTION for Leave to File Sur−Reply Brief in Reponse to Defendants' Reply in Support of Motion to Strike (Doc. No. 190) filed by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) (Entered: 06/17/2010)
193 REPLY to opposition to motion re 191 MOTION for Leave to File Sur−Reply Brief in Reponse to Defendants' Reply in Support of Motion to Strike (Doc. No. 190) MOTION for Leave to File Sur−Reply Brief in Reponse to Defendants' Reply in Support of

06/23/2010 08/10/2010
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Motion to Strike (Doc. No. 190) filed by DL. (Karam, Alexander) (Entered: 06/23/2010)
194 ORDER granting 191 Motion for Leave to File Sur−Reply Brief in Reponse to Defendants' Reply in Support of Motion to Strike (Doc. No. 190). Signed by Chief Judge Royce C. Lamberth on 6/23/10. (rje, ) (Entered: 06/24/2010)
195 ORDER granting in part and denying in part 181 Defendants' Motion to Strike Report and Testimony of Dr. Leonard Cupingood, Along with All Evidence Based Thereupon. Dr. Leonard Cupingood is qualified as an expert in statistics, but he is not qualified as an expert in computer programming. Dr. Cupingood's testimony is admissible. Signed by Chief Judge Royce C. Lamberth on August 10, 2010. (lcrcl4) (Entered: 08/10/2010)
196 MEMORANDUM AND OPINION. Signed by Chief Judge Royce C. Lamberth on August 10, 2010. (lcrcl4) (Entered: 08/10/2010)
197 ORDER granting in part and denying in part 177 Defendants' Motion for Summary Judgment. ORDER granting 178 Plaintiffs' Motion for Partial Summary Judgment on Liability. ORDER denying 189 Plaintiffs' Consent Motion for Order Scheduling Oral Argument on Pending Summary Judgment Motions. Signed by Chief Judge Royce C. Lamberth on August 10, 2010. (lcrcl4) (Entered: 08/10/2010)
198 MEMORANDUM AND OPINION. Signed by Chief Judge Royce C. Lamberth on August 10, 2010. (lcrcl4) (Entered: 08/10/2010)
199 ORDER denying 172 Plaintiffs' Opposed Motion for an Order Appointing a Magistrate Judge as Mediator and Compelling the Parties to Participate in Mediation. Signed by Chief Judge Royce C. Lamberth on August 10, 2010. (lcrcl4) (Entered: 08/10/2010)
200 Joint MOTION for Order Setting Pretrial Deadlines and Pretrial Conference and Trial Dates by DL (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 09/15/2010)
201 ORDER granting 200 Motion for Order Setting Pretrial Deadlines and Pretrial Conference and Trial Dates. Signed by Chief Judge Royce C. Lamberth on 9/22/10. (rje, ) (Entered: 09/23/2010)
Set/Reset Hearings: Bench Trial set for 4/6/2011 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje) Modified on 9/23/2010 (rje, ). (Entered: 09/23/2010)
202 ORDER REFERRING CASE to Mediation.. Signed by Chief Judge Royce C. Lamberth on 9/22/10. (rje, ) (Entered: 09/23/2010)
Set/Reset Hearings: Pretrial Conference reset for 3/29/2011 at 11:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje, ) (Entered: 03/02/2011)
203 NOTICE of Appearance by Chad Wayne Copeland on behalf of DISTRICT OF COLUMBIA (Copeland, Chad) (Entered: 03/02/2011)
204 Consent MOTION for Extension of Time to File Pretrial Statement by DISTRICT OF COLUMBIA (Sulkowski, Sarah) (Entered: 03/02/2011)
205 NOTICE of Appearance by Caroline B. Hutton on behalf of DISTRICT OF COLUMBIA (Hutton, Caroline) (Entered: 03/02/2011)
MINUTE ORDER granting 204 defendants' Consent Motion to Extend Time. The deadline for filing the parties' pretrial statement is extended to March 15, 2011. Signed by Chief Judge Royce C. Lamberth on March 4, 2011. (lcrcl4) (Entered: 03/04/2011)
Set/Reset Deadlines: Parties' Pretrial Statement due by 3/15/2011. (rje, ) (Entered: 03/07/2011)
206 STIPULATION Regarding Order of Proof by DISTRICT OF COLUMBIA. (Sulkowski, Sarah) (Entered: 03/09/2011)

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207 PRETRIAL STATEMENT by all plaintiffs. (Karam, Alexander) Modified to add filers on 3/16/2011 (znmw, ). (Entered: 03/15/2011)
208 PRETRIAL STATEMENT by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sulkowski, Sarah) Modified to add filers on 3/16/2011 (znmw, ). (Entered: 03/15/2011)
NOTICE OF ERROR re 207 Pretrial Statement; emailed to akaram@tpmlaw.com, cc'd 13 associated attorneys −− The PDF file you docketed contained errors: 1. Also re 208 : Counsel is reminded to select all parties/filers represented in the filing. (znmw, ) (Entered: 03/16/2011)
209 RESPONSE TO ORDER OF THE COURT re 201 Order on Motion for Order Plaintiffs' Written Direct Testimony filed by ALL PLAINTIFFS. (Attachments: # 1 Direct Testimony of Dr. Carl J. Dunst, # 2 Direct Testimony of Dr. Leonard A. Cupingood, # 3 Direct Testimony of Ruth Anderson Wilcox)(Karam, Alexander) Modified to add filers on 3/17/2011 (znmw, ). (Entered: 03/16/2011)
210 NOTICE of Filing Written Testimony by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, MICHELLE RHEE, and DEBORAH GIST (Attachments: # 1 Exhibit Testimony of Nathaniel Beers, # 2 Exhibit Testimony of Maxine Freund, # 3 Exhibit Testimony of Amy Maisterra)(Sulkowski, Sarah) Modified on 3/17/2011 to add filers (dr). (Entered: 03/16/2011)
211 RESPONSE re 206 Stipulation filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) Modified to add filers on 3/18/2011 (znmw, ). (Entered: 03/17/2011)
NOTICE OF ERROR re 211 Response to Document; emailed to akaram@tpmlaw.com, cc'd 11 associated attorneys −− The PDF file you docketed contained errors: 1. Again, counsel is reminded to select all parties represented in filing. (znmw, ) (Entered: 03/18/2011)
212 Exhibit List (Corrected) by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Sulkowski, Sarah) (Entered: 03/22/2011)
213 RESPONSE re 208 Pretrial Statement : Plaintiffs' Objections to Defendants' Pretrial Statement filed by DL. (Karam, Alexander) (Entered: 03/23/2011)
214 MOTION Decertification of Class by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit 1)(Sulkowski, Sarah) (Entered: 03/23/2011)
215 Emergency MOTION to Expedite Briefing on Motion to Decertify Class by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) (Entered: 03/23/2011)
216 Memorandum in opposition to re 215 Emergency MOTION to Expedite Briefing on Motion to Decertify Class filed by DL. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6)(Karam, Alexander) (Entered: 03/24/2011)
217 REPLY re 206 Stipulation filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 03/24/2011)
218 MOTION To Present Oral Direct Testimony by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) (Entered: 03/24/2011)
219 MOTION to Strike re 213 in Part Plaintiffs' Objections to Pretrial Statement by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) Modified on 3/25/2011 to add linkage (rdj). (Entered: 03/25/2011)
220 RESPONSE Objections to Plaintiffs' Pretrial Statement filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Sulkowski, Sarah) (Entered: 03/25/2011)

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221 MOTION for Judgment as a Matter of Law by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit, # 2 Exhibit)(Copeland, Chad) (Entered: 03/25/2011)
222 Memorandum in opposition to re 218 MOTION To Present Oral Direct Testimony filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 03/28/2011)
223 Memorandum in opposition to re 219 MOTION to Strike in Part Plaintiffs' Objections to Pretrial Statement filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 03/28/2011)
224 REPLY re 206 Stipulation on Order of Proof at Trial filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Karam, Alexander) Modified on 3/28/2011 to add linkage (rdj). (Entered: 03/28/2011)
225 REPLY to opposition to motion re 215 Emergency MOTION to Expedite Briefing on Motion to Decertify Class filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Sulkowski, Sarah) (Entered: 03/28/2011)
226 SUPPLEMENTAL MEMORANDUM to re 207 Pretrial Statement filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Karam, Alexander) (Entered: 03/28/2011)
227 REPLY to opposition to motion re 218 MOTION To Present Oral Direct Testimony filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Sulkowski, Sarah) (Entered: 03/28/2011)
228 REPLY to opposition to motion re 219 MOTION to Strike in Part Plaintiffs' Objections to Pretrial Statement filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Sulkowski, Sarah) (Entered: 03/28/2011)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Pretrial Conference held on 3/29/2011. Pretrial Order to follow. Bench Trial set for 4/6/2011 at 10:00 AM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Court Reporter Wendy Ricard.) (rje) (Entered: 03/29/2011)
229 PRETRIAL ORDER denying 218 defendants' Motion to Present Oral Testimony; denying 219 defendants' Motion to Strike in Part Plaintiffs' Objections to Defendants' Pretrial Statement; sustaining plaintiffs' objection to defendants' inclusion of Tameria J. Lewis as a witness for defendants in their case in chief; denying 215 defendants' Emergency Motion for Expedited Briefing on Motion to Decertify Class; granting plaintiffs' motions for extensions of time to oppose defendants' motions and ordering that plaintiffs shall file their oppositions to defendants' motions on or before April 22, 2011. Signed by Chief Judge Royce C. Lamberth on March 29, 2011. (lcrcl4) (Entered: 03/29/2011)
230 Corrected Pretrial Statement by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sulkowski, Sarah) Modified on 3/30/2011 to correct event(rdj). (Entered: 03/30/2011)
231 RESPONSE TO ORDER OF THE COURT re 201 Order on Motion for Order Supplement to Direct Testimony of Dr. Carl J. Dunst filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE

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04/22/2011

PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Karam, Alexander) (Entered: 04/04/2011)
Set/Reset Hearings: Bench Trial set for 4/7/2011 at 01:30 PM in Courtroom 22A before Chief Judge Royce C. Lamberth. (rje) (Entered: 04/06/2011)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Bench Trial held on 4/6/2011 and continued to 4/7/2011 at 01:30 PM in Courtroom 22A before Chief Judge Royce C. Lamberth. (Plaintiff's Witnesses: Dr. Carl Dunst, Dr. Leonard Cupingood, Ruth Anderson Wilcox; Defendant's Witnesses: Dr. Maxine Freund and Dr. Nathaniel Beers). (Court Reporter Theresa Sorensen.) (rje) (Entered: 04/07/2011)
Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Bench Trial held on 4/7/2011 and concluded. The Court heard defendant's Motion for Judgment as a Matter of Law and reserved judgment on it. (Defense Witnesses: Dr. Nathaniel Beers and Amy Maisterra; Plaintiff's Rebuttal Witness: Dr. Carl Dunst)(Court Reporter Theresa Sorensen.) (Entered: 04/07/2011)
232 ORDER. Signed by Chief Judge Royce C. Lamberth on April 7, 2011. (lcrcl4) (Entered: 04/07/2011)
Set/Reset Deadlines: Defendants' production of all responsive e−mails due by 4/14/2011.Both parties Proposed Findings of Fact and Conclusions of Law due by 5/16/2011. Plaintiffs oppositions to defendants' Motions for Relief from Judgment and Judgment as a Matter of Law due 4/22/2011. Defendants'Reply due by 5/16/2011. (rje) Modified on 4/12/2011 (rje, ). (Entered: 04/08/2011)
233 MOTION for Reconsideration re 232 Order by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Sulkowski, Sarah) (Entered: 04/11/2011)
234 MOTION to Stay re 232 Order by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) (Entered: 04/11/2011)
235 Consent MOTION Clarification of April 7, 2011, Order re 232 Order by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) (Entered: 04/11/2011)
236 Memorandum in opposition to re 233 MOTION for Reconsideration re 232 Order filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Karam, Alexander) (Entered: 04/18/2011)
237 Memorandum in opposition to re 234 MOTION to Stay re 232 Order filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Karam, Alexander) (Entered: 04/18/2011)
238 Memorandum in opposition to re 214 MOTION Decertification of Class filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Karam, Alexander) (Entered: 04/22/2011)
239 Memorandum in opposition to re 221 MOTION for Judgment as a Matter of Law filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN

04/22/2011 04/25/2011 04/28/2011 04/28/2011
04/28/2011
05/02/2011
05/06/2011
05/09/2011 05/09/2011 05/12/2011 05/12/2011 05/12/2011 05/13/2011 05/16/2011 05/16/2011 05/16/2011

YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2)(Karam, Alexander) (Entered: 04/22/2011)
240 NOTICE Regarding Discovery by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) (Entered: 04/22/2011)
241 REPLY to opposition to motion re 234 MOTION to Stay re 232 Order filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit 1)(Sulkowski, Sarah) (Entered: 04/25/2011)
242 NOTICE Regarding Discovery by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) (Entered: 04/28/2011)
243 REPLY to opposition to motion re 233 MOTION for Reconsideration re 232 Order filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit 1)(Sulkowski, Sarah) (Entered: 04/28/2011)
244 ERRATA Corrected reply brief by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE 243 Reply to opposition to Motion filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST. (Attachments: # 1 Exhibit 1)(Sulkowski, Sarah) (Entered: 04/28/2011)
245 NOTICE OF WITHDRAWAL OF APPEARANCE as to LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. Attorney Alexander R. Karam terminated. (Karam, Alexander) (Entered: 05/02/2011)
246 NOTICE by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 238 Memorandum in Opposition, (Attachments: # 1 Affidavit)(Terris, Bruce) (Entered: 05/06/2011)
247 MEMORANDUM OPINION denying 233 Motion for Reconsideration. Signed by Chief Judge Royce C. Lamberth on May 9, 2011.(lcrcl3) (Entered: 05/09/2011)
248 Consent MOTION for Extension of Time to File Proposed Findings of Fact and Conclusions of Law by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Sulkowski, Sarah) (Entered: 05/09/2011)
249 ORDER granting 248 Motion for Extension of Time to File. Signed by Chief Judge Royce C. Lamberth on May 12, 2011.(lcrcl3) (Entered: 05/12/2011)
Set/Reset Deadlines: Proposed findings of fact and conclusions of lawdue by 6/3/2011. (rje, ) (Entered: 05/12/2011)
250 ORDER denying defendants' Motion for Reconsideration 233 . Signed by Chief Judge Royce C. Lamberth on May 12, 2011.(lcrcl3) (Entered: 05/12/2011)
251 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. Attorney Sarah Ann Sulkowski terminated. (Sulkowski, Sarah) (Entered: 05/13/2011)
252 REPLY to opposition to motion re 214 MOTION Decertification of Class filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 05/16/2011)
253 REPLY to opposition to motion re 221 MOTION for Judgment as a Matter of Law filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 05/16/2011)
ERRATA re 247 Memorandum Opinion entered on May 9, 2011. On page 13 in paragraph 2,line 7, should read " The District's production of thousands of e−mailssome more than two years oldafter the date of trial was a clear violation of their duty under Rule 26(e)(1)(B) to comply with this Courts supplementation orders".

06/03/2011 06/03/2011
06/03/2011 06/06/2011 06/06/2011 06/13/2011
06/16/2011 06/16/2011
06/17/2011 06/22/2011

(rje) (Entered: 05/16/2011)
254 Proposed Findings of Fact by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit Declaration of Nathaniel Beers)(Copeland, Chad) (Entered: 06/03/2011)
255 MOTION Re−open the Record to Admit Additional Exhibits by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit)(Terris, Bruce) (Entered: 06/03/2011)
256 Proposed Findings of Fact by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 06/03/2011)
257 NOTICE of Defendants' Objections to Plaintiffs' Post−Trial Exhibits by DISTRICT OF COLUMBIA (Hutton, Caroline) (Entered: 06/06/2011)
258 ERRATA by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE 257 Notice (Other) filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Errata)(Hutton, Caroline) (Entered: 06/06/2011)
259 Motion for Leave to file surreply Defendants' Reply in Support of Motion to Decertify Class filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Memorandum in Support Pl. Sur−Reply Brief, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Terris, Bruce) Modified on 6/16/2011 event to read Motion for Leave (td, ). (Entered: 06/13/2011)
260 Memorandum in opposition to re 259 MOTION for Leave to File a Sur−Reply to Defendants' Reply in Support of Motion to Decertify Class filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 06/16/2011)
261 MOTION for Leave to File SURREPLY to Defendants' Reply in Support of Motion for Relief From Judgment and for Judgment as a Matter of Law filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit Pl. Sur−Reply Brief_Attached as Exhibit 1, # 2 Exhibit)(Terris, Bruce) Modified on 6/22/2011 to correct event (rdj). (Entered: 06/16/2011)
262 REPLY to opposition to motion re 255 MOTION Re−open the Record to Admit Additional Exhibits filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 06/17/2011)
263 Memorandum in opposition to re 261 MOTION for Leave to File a Sur−Reply to Defendants' Reply in Support of Motion for Relief from Judgment and for Judgment as a Matter of Law filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 06/22/2011)

06/29/2011 07/01/2011 07/12/2011 07/18/2011 07/25/2011 08/08/2011 08/18/2011 08/18/2011
08/23/2011

264 REPLY to opposition to motion re 261 MOTION for Leave to File sur−reply filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 06/29/2011)
265 SUPPLEMENTAL MEMORANDUM to re 214 MOTION Decertification of Class filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 07/01/2011)
266 NOTICE by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 265 Supplemental Memorandum (Terris, Bruce) (Entered: 07/12/2011)
267 SUPPLEMENTAL MEMORANDUM to re 214 MOTION Decertification of Class filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Terris, Bruce) (Entered: 07/18/2011)
268 REPLY re 214 MOTION Decertification of Class filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 07/25/2011)
269 NOTICE Extension of Time by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 267 Supplemental Memorandum, (Terris, Bruce) (Entered: 08/08/2011)
270 MOTION for Leave to File Second Amended Complaint, by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Motion to Amend Complaint, # 2 Exhibit Second Amended Complaint)(Terris, Bruce) Modified on 8/19/2011 to correct event(rdj). (Entered: 08/18/2011)
271 MOTION to Certify Class by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Supplement Proposed Order for plaintiffs' Motion to Recertify Class, # 2 Memorandum in Support Memorandum of Law in support of motion to recertify class, # 3 Exhibit Dunst Direct Testimony Exhibit, # 4 Exhibit Beers Direct Testimony Exhibit, # 5 Exhibit APR Report Exhibit, # 6 Exhibit Scorecard Exhibit, # 7 Exhibit Cupingood Direct Testimony Exhibit, # 8 Exhibit Dunst Expert Report Exhibit, # 9 Exhibit Freund Direct Testimony Exhibit, # 10 Exhibit Freund Expert Report, # 11 Exhibit Supplementary Interrog Appendix Exhibit, # 12 Exhibit Maisterra Direct Testimony Exhibit, # 13 Exhibit DCPS Press Release Exhibit, # 14 Exhibit Scorecard Exhibit, # 15 Exhibit Scorecard Exhibit, # 16 Exhibit Letter from Posny to Briggs Exhibit, # 17 Exhibit Affidavit of Bruce Terris Exhibit, # 18 Exhibit Affidavit of Kathleen Millian Exhibit, # 19 Exhibit Affidavit of Jeffrey Gutman Exhibit, # 20 Exhibit Affidavit of Margaret Kohn Exhibit, # 21 Exhibit Family Care Manual Exhibit)(Terris, Bruce) (Entered: 08/18/2011)
272 MOTION for Extension of Time to File Response/Reply as to 271 MOTION to Certify Class, 270 MOTION for Leave to File by DISTRICT OF COLUMBIA, DEBORAH

08/24/2011
08/24/2011 08/26/2011
08/29/2011 08/30/2011 09/28/2011 09/30/2011 09/30/2011 09/30/2011 10/03/2011

GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 08/23/2011)
273 NOTICE OF PROPOSED ORDER re 256 Proposed Findings of Fact, filed by ANGELIQUE MOORE, JB, TIMOTHY LANTRY, DL, TF, TAMEKA FORD, XY, DC, FD, DARWIN LAZO, BRYAN YOUNG, DORIS COCKRELL, FREDERICK DAVY, TL, TAMMIKA YOUNG, ELIZABETH UMANA−LAZO, LEAH BLAND, HW, OUL, RONALD WISOR, MONICA DAVY, ARLETTE MANKEMI, KERIANNE PIESTER by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) Modified event title on 8/25/2011 (znmw, ). (Entered: 08/24/2011)
274 NOTICE by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 273 Memorandum,, (Terris, Bruce) (Entered: 08/24/2011)
275 Memorandum in opposition to re 272 MOTION for Extension of Time to File Response/Reply as to 271 MOTION to Certify Class, 270 MOTION for Leave to File Second Amended Complaint filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 08/26/2011)
276 REPLY to opposition to motion re 272 MOTION for Extension of Time to File Response/Reply as to 271 MOTION to Certify Class, 270 MOTION for Leave to File Second Amended Complaint filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 08/29/2011)
277 ORDER that defendants' responses to plaintiffs' motion for leave to file their second amended complaint and to plaintiffs' motion for class recertification are both due on 9/30/2011. (Signed by Chief Judge Royce C. Lamberth on 8/29/2011) (tj ) (Entered: 08/31/2011)
278 ORDER granting 235 defendants' Consent Motion to Clarify. Signed by Chief Judge Royce C. Lamberth on September 28, 2011. (lcrcl4) (Entered: 09/28/2011)
279 NOTICE of Filing of Declaration by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Declaration Declaration of Dr. Nathaniel Beers)(Copeland, Chad) (Entered: 09/30/2011)
280 Memorandum in opposition to re 270 MOTION for Leave to File Second Amended Complaint filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 09/30/2011)
281 Memorandum in opposition to re 271 MOTION to Certify Class filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 09/30/2011)
282 Consent MOTION for Extension of Time to File Response/Reply in Support of Plaintiffs' Motion for Leave to File Their Second Amended Complaint and in Support of Plaintiffs' Motion for Class Re−certification by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Terris, Bruce) (Entered: 10/03/2011)

10/06/2011 10/14/2011 10/18/2011 10/18/2011 10/25/2011 11/04/2011 11/04/2011 11/14/2011
11/14/2011 11/14/2011

283 ORDER granting 282 Motion for Extension of Time to File Reply. FURTHER ORDERED Plaintiff's Reply in Support of Plaintiffs' Motion for Leave to File Their Second Amended Complaint and in Support of Plaintiffs' Motion for Class Re−certification due by 10/18/2011.. Signed by Chief Judge Royce C. Lamberth on 10/5/11. (rje, ) (Entered: 10/06/2011)
284 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. Attorney Caroline B. Hutton terminated. (Hutton, Caroline) (Entered: 10/14/2011)
285 REPLY to opposition to motion re 271 MOTION to Certify Class filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Terris, Bruce) (Entered: 10/18/2011)
286 REPLY to opposition to motion re 270 MOTION for Leave to File filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Terris, Bruce) (Entered: 10/18/2011)
287 MEMORANDUM AND ORDER granting in part and denying in part 255 plaintiffs' Motion for Leave to Re−Open the Record and to Admit Additional Exhibits. Signed by Chief Judge Royce C. Lamberth on October 25, 2011. (lcrcl4) (Entered: 10/25/2011)
288 MOTION for Leave to File Surreplies by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Defendants' Surreply in Further Opposition to Plaintiffs' Motion for Leave to File Their Second Amended Complaint, # 2 Exhibit Defendants' Surreply in Further Opposition to Plaintiffs' Motion for Re−Certification)(Copeland, Chad) (Entered: 11/04/2011)
289 Consent MOTION for Leave to File Contrary Evidence by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Ex. 172 − Declaration of Nathaniel Beers, # 2 Exhibit Ex. 173 − Declaration of Maxine Freund, # 3 Exhibit Ex. 174 − Data Table Reflecting the Number of Children Served Under IDEA)(Copeland, Chad) (Entered: 11/04/2011)
290 MOTION for Leave to File Sur−sur−reply briefs by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order, # 2 Pl. Sur−sur−reply in support of motion to recertify class, # 3 Pl Sur−sur−reply in support of motion to amend)(Terris, Bruce) (Entered: 11/14/2011)
291 Memorandum in opposition to re 289 Consent MOTION for Leave to File Contrary Evidence filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 11/14/2011)
292 Memorandum in opposition to re 288 MOTION for Leave to File Surreplies filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce)

11/14/2011
11/16/2011 11/16/2011 11/16/2011
11/16/2011 11/16/2011 11/16/2011 11/16/2011
11/16/2011 11/29/2011
12/10/2011 12/15/2011

(Entered: 11/14/2011)
293 MOTION for Leave to File Rebuttal to Defendants' Post Trial Exhibits by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order, # 2 Plaintiffs' Rebuttal to Defendants' Post Trial Exhibits, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Terris, Bruce) (Entered: 11/14/2011)
294 MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Chief Judge Royce C. Lamberth on November 16, 2011. (lcrcl4) (Entered: 11/16/2011)
295 ORDER. Signed by Chief Judge Royce C. Lamberth on November 16, 2011. (lcrcl4) (Entered: 11/16/2011)
296 ORDER granting in part and denying in part 288 defendants' Motion for Leave to File Sur−Replies; denying 290 plaintiffs' Motion for Leave to File Sur−Sur−Replies; granting in part and denying in part 214 defendants' Motion to Decertify the Class; granting 259 plaintiffs' Motion for Leave to File a Sur−Reply; denying without prejudice 270 plaintiffs' Motion for Leave to File a Second Amended Complaint; granting in part and denying in part 271 plaintiffs' Motion for Class Certification. Signed by Chief Judge Royce C. Lamberth on November 16, 2011. (lcrcl4) (Entered: 11/16/2011)
297 MEMORANDUM OPINION (CLASS ACTION ISSUES). Signed by Chief Judge Royce C. Lamberth on November 16, 2011. (lcrcl4) (Entered: 11/16/2011)
298 MEMORANDUM AND ORDER denying 289 defendants' Motion for Leave to Re−Open the Record; denying 293 plaintiffs' Motion to Submit Rebuttal. Signed by Chief Judge Royce C. Lamberth on November 16, 2011. (lcrcl4) (Entered: 11/16/2011)
299 ORDER denying 221 defendants' Motion for Relief from Judgment; granting 261 plaintiffs' Motion for Leave to File a Sur−Reply. Signed by Chief Judge Royce C. Lamberth on November 16, 2011. (lcrcl4) (Entered: 11/16/2011)
300 SURREPLY to re 214 MOTION Decertification of Class filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (dr) (Entered: 11/17/2011)
301 SURREPLY to re 271 MOTION to Certify Class filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (dr) (Entered: 11/17/2011)
302 Consent MOTION for Extension of Time to File Plaintiffs' Motion for an Award of Attorneys' Fees and Expenses by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Terris, Bruce) (Entered: 11/29/2011)
305 ORDER granting 302 Motion for Extension of Time to File Plaintiffs' Motion for an Award of Attorneys' Fees and Expenses. Award of Attorney's Fees and Expenses is due by 2/29/2012. Signed by Chief Judge Royce C. Lamberth on 12/9/11. (rje, ) (Entered: 12/15/2011)
303 Consent MOTION for Extension of Time to Meet and Confer by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 12/15/2011)

12/15/2011
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01/31/2012 02/10/2012
02/10/2012

304 NOTICE OF APPEAL as to 299 Order on Motion for Judgment as a Matter of Law, Order on Motion for Leave to File, 298 Order on Motion for Leave to File, 295 Order, 296 Order on Motion for Leave to File,, Order on Motion for Miscellaneous Relief,,, Order on Motion to Certify Class,,,,,,,,,,,, by DISTRICT OF COLUMBIA, MICHELLE RHEE, DEBORAH GIST, CLIFFORD B. JANEY. Fee Status: No Fee Paid. Parties have been notified. (Copeland, Chad) (Entered: 12/15/2011)
306 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 304 Notice of Appeal. (rdj) (Entered: 12/16/2011)
MINUTE ORDER granting 303 defendant's Consent Motion to Extend Meet and Confer Period Regarding Proposal for Individualized Relief. The parties shall meet and confer, and present their proposal(s), regarding resolution of the class claims for individualized relief by January 31, 2012. Signed by Chief Judge Royce C. Lamberth on December 19, 2011. (lcrcl4) (Entered: 12/19/2011)
Set/Reset Deadlines: Parties Meet & Confer Statement due by 1/31/2012. (rje, ) (Entered: 12/19/2011)
USCA Case Number 11−7153 for 304 Notice of Appeal, filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST. (mmh) (Entered: 12/29/2011)
307 MOTION for Reconsideration by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit OSEP Early Childhood Transition FAQs)(Copeland, Chad) (Entered: 01/12/2012)
308 Consent MOTION for Extension of Time to file opposition to defendants' motion for reconsideration by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Terris, Bruce) (Entered: 01/30/2012)
309 ORDER granting 308 Motion for Extension of Time to file opposition to defendants' motion for reconsideration. Signed by Chief Judge Royce C. Lamberth on 1/30/12. (rje, ) (Entered: 01/31/2012)
Set/Reset Deadlines: Plaintiffs' Opposition due by 2/17/2012. Defendants' Reply due by 3/2/2012. (rje) (Entered: 01/31/2012)
310 NOTICE of Proposed Decree for Individual Relief by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 295 Order (Attachments: # 1 Cover Letter)(Terris, Bruce) (Entered: 01/31/2012)
311 Consent MOTION for Leave to File Memorandum by JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Terris, Bruce) (Entered: 01/31/2012)
312 MEMORANDUM re 310 Notice (Other), Notice (Other) filed by ANGELIQUE MOORE, JB, TIMOTHY LANTRY, DL, TF, TAMEKA FORD, XY, DC, FD, DARWIN LAZO, BRYAN YOUNG, DORIS COCKRELL, FREDERICK DAVY, TL, TAMMIKA YOUNG, ELIZABETH UMANA−LAZO, LEAH BLAND, HW, OUL, RONALD WISOR, MONICA DAVY, ARLETTE MANKEMI, KERIANNE PIESTER by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit Blackman−Jones Status Report re Compensatory Education, # 2 Exhibit Salazar Consent Decree)(Copeland, Chad) (Entered: 02/10/2012)
313 NOTICE of Memorandum in Support of Proposed Decree by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA

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03/20/2012 04/03/2012 04/05/2012
04/19/2012

FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 311 Consent MOTION for Leave to File Memorandum (Attachments: # 1 Exhibit)(Terris, Bruce) (Entered: 02/10/2012)
314 Memorandum in opposition to re 307 MOTION for Reconsideration filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Terris, Bruce) (Entered: 02/17/2012)
315 Consent MOTION for Extension of Time to file motion for attorney fees and expenses by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Terris, Bruce) (Entered: 02/24/2012)
316 ORDER granting 315 Motion for Extension of Time to file motion for attorney fees and expenses. Signed by Chief Judge Royce C. Lamberth on 2/24/12. (rje) (Entered: 02/29/2012)
Set/Reset Deadlines: Plaintiffs' Motion due by 4/30/2012. Defendants' Reply in support of defendants' motion for reconsideration due by 3/14/2012. (rje, ) (Entered: 02/29/2012)
317 REPLY to opposition to motion re 307 MOTION for Reconsideration filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 03/14/2012)
318 NOTICE by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 317 Reply to opposition to Motion (Terris, Bruce) (Entered: 03/16/2012)
319 ORDER of USCA as to 304 Notice of Appeal, filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST ; USCA Case Number 11−715. ORDERED that the motion be granted, and this case be held in abeyance pending further order of the court. (kb) (Entered: 03/21/2012)
MINUTE ORDER granting nunc pro tunc 311 plaintiffs' Consent Motion for Leave to File. Signed by Chief Judge Royce C. Lamberth on April 3, 2012. (lcrcl4) (Entered: 04/03/2012)
320 NOTICE by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 317 Reply to opposition to Motion (Terris, Bruce) (Entered: 04/05/2012)
321 Consent MOTION Motion to File Sur−Reply in Opposition to Defendants' Motion for Reconsideration re 317 Reply to opposition to Motion by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Terris, Bruce) (Entered: 04/19/2012)

04/25/2012 04/25/2012 04/25/2012 04/30/2012
04/30/2012

322 MEMORANDUM AND ORDER, granting plaintiffs' Motion 321 for Leave to File a Sur−Reply and granting in part and denying in part defendants' Motion 307 for Reconsideration. Signed by Chief Judge Royce C. Lamberth on April 25, 2012. (lcrcl4) (Entered: 04/25/2012)
323 ORDER amending 295 the Court's November 16, 2011 Final Order. Signed by Chief Judge Royce C. Lamberth on April 25, 2012. (lcrcl4) (Entered: 04/25/2012)
324 SURREPLY to re 307 MOTION for Reconsideration filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (rdj) (Entered: 04/25/2012)
325 MOTION for Order Attorneys Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Affidavit of Bruce J. Terris, # 4 Exhibit TPM Timekeepers Chart, # 5 Exhibit Resumes for Attorneys, # 6 Exhibit Legal Servicing INdex, # 7 Exhibit Laffey Matrix Updated, # 8 Exhibit Summary of Fees and Expenses, # 9 Exhibit Summary of Time by Category for Main Case, # 10 Exhibit Time Records by Category for Main Case, # 11 Exhibit Summary of Remaining Fees Sought from 2008 MTC Fees Petition, # 12 Exhibit Remaining Time Records in 2008 MTC Fees Petition, # 13 Exhibit Time Records by Category for 2008 MTC Fees Petition, # 14 Exhibit Summary of Expenses, # 15 Exhibit Computerized Expense Records, # 16 Exhibit No Charge Time Records by Category, # 17 Exhibit No Charge Expense Records, # 18 Exhibit Affidavit of Jeffrey Gutman, # 19 Exhibit Affidavit of Margaret Kohn, # 20 Exhibit Affidavit of Carl Dunst, # 21 Exhibit Affidavit of Leonard Cupingood, # 22 Exhibit Jeffrey Gutman Resume, # 23 Exhibit Margaret A. Kohn Resume, # 24 Exhibit Tablonski, Both & Edelman Website, # 25 Exhibit Affidavit of L. Thomas Galloway, # 26 Exhibit Intentionally Left Blank, # 27 Exhibit Rate of Change in Washington, D.C., # 28 Exhibit Affidavit of Laura Campbell, # 29 Exhibit National Law Journal Rates Survey for 1996, # 30 Exhibit National Law Journal Rates Survey for 2011, # 31 Exhibit Laffey Matrix Updated, # 32 Exhibit Affidavit of Michael Kavanaugh, # 33 Exhibit Affidavit of Alexander Karam, # 34 Exhibit BLS Checklist, # 35 Exhibit 1989 NLJ Survey, # 36 Exhibit 2007 NLJ Survey, # 37 Exhibit 2008 NLJ Survey, # 38 Exhibit COmparison of Rate of Change in Billing, # 39 Exhibit 1989 Average Rates by City, # 40 Exhibit 2007 Average Rates by City, # 41 Exhibit 2008 Average Rates by City, # 42 Exhibit Affidavit of Benjamin Koppenheffer)(Terris, Bruce) (Entered: 04/30/2012)
326 Notice of Additional Exhibits re 325 Motion for Attorneys' Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit Okeefe Affidavit, # 2 Exhibit Appendix B to Local Rules for the US District Court for the District of Columbia, # 3 Exhibit Testimony of Ward Bower, # 4 Exhibit Webster Affidavit, # 5 Exhibit Intentionally Left Blank, # 6 Exhibit Altman Weil Survey, # 7 Exhibit Hourly Billing: Its Business as Usual − Report to Legal Management, # 8 Exhibit Affidavit of William G. Ross, # 9 Exhibit Affidavit of Daniel Rezneck, # 10 Exhibit Data Underlying Laffey Matrix, # 11 Exhibit 1982 Martindale Hubbell Directory Listings, # 12 Exhibit Yablonski Declaration, # 13 Exhibit Emails Regarding ALtman Weil Survey, # 14 Exhibit Declaration of Stephen Braga, # 15 Exhibit Supplemental Declaration of John Falstad, # 16 Exhibit 2007−2008 Average Firm Billing Rates, # 17 Exhibit Comparison of Plaintiffs' LSI Updated Laffey Matrix, # 18 Exhibit Email from Shiva Balkaram, # 19 Exhibit Legal Billing Report May 2008, # 20 Exhibit Legal Billing Report August 2008, # 21 Exhibit Legal Billing Report, December 2008, # 22 Exhibit Declaration of Marc Fleishaker, # 23 Exhibit Third Interim Application of Arnold & Porter, # 24 Exhibit Declaration of Stephen Braga, # 25 Exhibit Affidavit of Peter Kadzik, # 26 Exhibit Affidavit of Donald Enright, # 27 Exhibit Declaration of Eli Gottesdiener, # 28 Exhibit Declaration of Philip Evans, # 29 Exhibit Declaration of

05/08/2012 05/08/2012 05/09/2012 05/09/2012 05/11/2012 05/15/2012
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David DeBruin, # 30 Exhibit Declaration of Steven Metalitz, # 31 Exhibit Declaration of Jane Ryan, # 32 Exhibit Summary Sheet Regarding Itemization of Services by Stinson, # 33 Exhibit Affidavit of Andrew Boone, # 34 Exhibit Declaration of Steven Davidson, # 35 Exhibit Declaration of Robert Podgursky, # 36 Exhibit Affidavit of Nathan Lewin, # 37 Exhibit Affidavit of Michael Downey, # 38 Exhibit Affidavit of Bruce MacEwen)(Terris, Bruce) Modified on 5/1/2012 to correct the event(rdj). (Entered: 04/30/2012)
327 ENTERED IN ERROR.....NOTICE of Appeal by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE re 323 Order, 322 Memorandum & Opinion, 295 Order (Copeland, Chad) Modified on 5/9/2012 (rdj). (Entered: 05/08/2012)
328 NOTICE OF APPEAL as to 323 Order, 322 Memorandum & Opinion, 295 Order by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. Filing fee $ 0.00. Fee Status: No Fee Paid. Parties have been notified. (rdj) (Entered: 05/09/2012)
NOTICE OF CORRECTED DOCKET ENTRY: re 327 Notice (Other) was entered in error as incorrect event and was refiled by the Clerk's Office as 328 Notice of Appeal. (rdj) (Entered: 05/09/2012)
329 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 328 Notice of Appeal. (rdj) (Entered: 05/09/2012)
330 MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad). Added MOTION for Extension of Time to File Response/Reply on 5/14/2012 (rdj). (Counsel is instructed to docket all parts of the motion in the future) (Entered: 05/11/2012)
331 NOTICE pertaining to Plaintiffs' statement of consent by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE re 330 MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose MOTION for Extension of Time to File Response/Reply (Copeland, Chad) (Entered: 05/15/2012)
USCA Case Number 12−7042 for 328 Notice of Appeal filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST. (rdj) (Entered: 05/21/2012)
332 Memorandum in opposition to re 330 MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose MOTION for Extension of Time to File Response/Reply MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose Defendants' Motion to Hold In Abeyance Plaintiffs' Motion for Attorneys' Fees filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 05/23/2012)
333 NOTICE of Filing by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE re 322 Memorandum & Opinion, 295 Order (Attachments: # 1 Exhibit DEFENDANTS JUNE 1, 2012 REPORT ON PROGRAMMATIC REQUIREMENTS)(Copeland, Chad) (Entered: 06/01/2012)
334 REPLY to opposition to motion re 330 MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose MOTION for Extension of Time to File Response/Reply MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose filed by DISTRICT OF COLUMBIA,

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DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 06/04/2012)
335 Consent MOTION for Leave to File Sur−reply brief by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Terris, Bruce) (Entered: 06/06/2012)
336 ORDER granting in part and denying in part 330 Order on Motion to Hold in Abeyance; granting 330 Motion for Extension of Time to File their Opposition to plaintiff's Motion for Attorney's Fees. The Opposition is due on or before August 15, 2012. Signed by Chief Judge Royce C. Lamberth on July 9, 2012. (lcrcl4) (Entered: 07/09/2012)
337 ORDER granting 335 Motion for Leave to File a Sur−Reply to defendant's Reply in further support of their Motion to Hold in Abeyance Briefing on plaintiffs' Motion for Attorneys' Fees pending appeal, or in the Alternative, Motion for Extension for time to Oppose. The Sur−Reply, submitted to the Court as plaintiffs' exhibit 1 [335−1] is deemed filed. Signed by Chief Judge Royce C. Lamberth on July 9, 2012. (lcrcl4) (Entered: 07/09/2012)
338 SURREPLY to re 330 MOTION to Hold in Abeyance re 325 MOTION for Order Attorneys Fees or, in the Alternative, Motion for Enlargment of Time to Oppose MOTION for Extension of Time to File Response/Reply filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (rdj) (Entered: 07/10/2012)
Set/Reset Deadlines: Opposition due by 8/15/2012. (rje) (Entered: 07/10/2012)
339 Consent MOTION for Briefing Schedule of Plaintiffs' Application for Attorneys' Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 07/25/2012)
340 ORDER granting 339 Motion for Briefing Schedule. Defendant's Opposition brief is due on or before September 4, 2012; expert depositions, if needed, must be completed on or before September 20, 2012; plaintiff's Reply brief is due on or before October 4, 2012. SO ORDERED.Signed by Chief Judge Royce C. Lamberth on July 24, 2012. (lcrcl4) (Entered: 07/26/2012)
Set/Reset Deadlines: Defendant's Opposition due by 9/4/2012. Expert Depositions due by 10/20/2012. Plaintiff's Reply due by 10/4/2012. (rje) (Entered: 08/02/2012)
341 NOTICE of Filing Revised Plaintiffs' Exhibit 2 by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 325 MOTION for Order Attorneys Fees (Attachments: # 1 Exhibit Revised Pl. Ex. 2)(Terris, Bruce) (Entered: 08/21/2012)
342 NOTICE of Appearance by Matthew Robert Blecher on behalf of All Defendants (Blecher, Matthew) (Entered: 08/31/2012)
343 Memorandum in opposition to re 325 MOTION for Order Attorneys Fees filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Exhibit A − TPM Block Billing, # 3 Exhibit Exhibit B − TPM Vague Billing, # 4 Exhibit Exhibit C − TPM Duplicate Entries, # 5 Exhibit D − Objections to Billing for Margaret

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Kohn, # 6 Exhibit Exhibit E − Dunst Trial Testimony)(Copeland, Chad) (Entered: 09/04/2012)
344 Unopposed MOTION for Leave to File Excess Pages in Plaintiffs' Reply Brief in Support of Fee Application by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 10/01/2012)
345 ORDER granting 344 Motion for Leave to File Excess Pages. Signed by Chief Judge Royce C. Lamberth on 10/01/2012. (lcrcl4) (Entered: 10/01/2012)
346 MOTION for Extension of Time to File Response/Reply as to 325 MOTION for Order Attorneys Fees by One Day by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 10/04/2012)
347 ORDER granting 346 Motion for Extension of Time to File Reply re 325 MOTION for Order Attorneys Fees. Reply due by 10/5/2012. Signed by Chief Judge Royce C. Lamberth on 10/05/2012. (lcrcl4) (Entered: 10/05/2012)
348 REPLY to opposition to motion re 325 MOTION for Order of Attorneys' Fees and Relates Expenses filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Pl Revised Ex 8 −− Time Records with 3 Decimals, # 3 Exhibit Pl Ex 79 Second Terris Affidavit, # 4 Exhibit Pl Ex 80 WV Law Firm Pullin, # 5 Exhibit Pl Ex 81 WV Law Firm Cordell, # 6 Exhibit Pl Ex 82 WV Law Firm Hamstead, # 7 Exhibit Pl Ex 83 WV Law Firm McCune, # 8 Exhibit Pl Ex 84 WV Law Firm Burke, # 9 Exhibit Pl Ex 85 WV Law Firm Martin, # 10 Exhibit Pl Ex 86 WV Law Firm Boyce, # 11 Exhibit Pl Ex 87 Second Gutman Affidavit, # 12 Exhibit Pl Ex 88 Second Kohn Affidavit, # 13 Exhibit Pl Ex 89 TPM Deductions, # 14 Exhibit Pl Ex 90 Rebuttal to Def Ex D, # 15 Exhibit Pl Ex 91 Outbind Printing Expenses, # 16 Exhibit Pl Ex 92 Letter to Rezneck, # 17 Exhibit Pl Ex 93 Co−counsel Deductions, # 18 Exhibit Pl Ex 94 Summary of Retainer Work)(Terris, Bruce) Modified on 10/9/2012 to correct linnkage (rdj). (Entered: 10/05/2012)
349 MOTION for Leave to File Sur−Reply in Further Opposition to Plaintiffs' Motion for Attorneys' Fees by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Proposed Sur−Reply)(Copeland, Chad) (Entered: 10/26/2012)
350 NOTICE of Appearance by Todd A. Gluckman on behalf of All Plaintiffs (Gluckman, Todd) (Entered: 10/26/2012)
351 MOTION Oral Argument re 325 MOTION for Order Attorneys Fees, 326 MOTION for Order of Attorneys' Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Gluckman, Todd) (Entered: 10/26/2012)
352 Memorandum in opposition to re 351 MOTION Oral Argument re 325 MOTION for Order Attorneys Fees, 326 MOTION for Order of Attorneys' Fees filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 11/05/2012)
353 Memorandum in opposition to re 349 MOTION for Leave to File Sur−Reply in Further Opposition to Plaintiffs' Motion for Attorneys' Fees filed by LEAH BLAND,

11/13/2012
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06/04/2013 06/04/2013 06/04/2013
06/04/2013

DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit Plaintiffs' Sur−Sur−Reply in Support of Their Motion for an Award of Litigation Costs, Including Attorneys' Fees and Related Expenses)(Gluckman, Todd) (Entered: 11/13/2012)
354 Cross MOTION Leave to File a Sur−Sur−Reply in the Event that Defendants Are Permitted a Sur−Reply by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit Plaintiffs' Sur−Sur−Reply in Support of Their Motion for an Award of Litigation Costs, Including Attorneys' Fees and Related Expenses)(Gluckman, Todd) (Entered: 11/13/2012)
355 REPLY to opposition to motion re 349 MOTION Leave to File a Sur−Reply filed by DISTRICT OF COLUMBIA. (Blecher, Matthew) Modified on 11/21/2012 to correct linkage and enhance text (rdj). (Entered: 11/21/2012)
356 NOTICE of Filing of Annual Reporting by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE re 295 Order (Attachments: # 1 Exhibit December 2012 Reporting)(Copeland, Chad) (Entered: 11/30/2012)
357 NOTICE of Appearance by Jane M. Liu on behalf of All Plaintiffs (Liu, Jane) (Entered: 06/04/2013)
358 MOTION to Certify Class and for Reinstatement of Findings of Liability and Order Granting Relief by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Pl. Ex. 1, # 3 Exhibit Pl. Ex. 2, # 4 Exhibit Pl. Ex. 3, # 5 Exhibit Pl. Ex. 4, # 6 Exhibit Pl. Ex. 5, # 7 Exhibit Pl. Ex. 6, # 8 Exhibit Pl. Ex. 7, # 9 Exhibit Pl. Ex. 8, # 10 Exhibit Pl. Ex. 9, # 11 Exhibit Pl. Ex. 10, # 12 Exhibit Pl. Ex. 11, # 13 Exhibit Pl. Ex. 12, # 14 Exhibit Pl. Ex. 13, # 15 Exhibit Pl. Ex. 14, # 16 Exhibit Pl. Ex. 15, # 17 Exhibit Pl. Ex. 16, # 18 Exhibit Pl. Ex. 17, # 19 Exhibit Pl. Ex. 18, # 20 Exhibit Pl. Ex. 19)(Terris, Bruce) (Entered: 06/04/2013)
359 MOTION to Amend/Correct 61 Amended Complaint, by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit PL. Ex. 1 Second Amended Complaint)(Terris, Bruce) (Entered: 06/04/2013)
360 Emergency MOTION for Hearing by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 06/04/2013)
361 MANDATE of USCA (certified copy) as to 304 Notice of Appeal to DC Circuit Court, filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST, USCA Case Number 11−7153. ORDERED and ADJUDGED that the order of the District Court appealed from in these causes certifying the class and, consequently, the orders finding liability and ordering relief to that class be vacated, and the case be remanded to the District Court for reconsideration of whether a class, classes, or subclasses may be certified, and if so, thereafter to redetermine liability and appropriate relief, in accordance with the opinion of the court filed herein this date. (ds) (Entered: 06/04/2013)
362 NOTICE of Appearance by Cyrus Mehri on behalf of LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Mehri,

06/05/2013
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07/15/2013 07/15/2013 07/26/2013
07/26/2013

Cyrus) (Entered: 06/04/2013)
363 Memorandum in opposition to re 360 Emergency MOTION for Hearing filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 06/05/2013)
364 REPLY to opposition to motion re 360 Emergency MOTION for Hearing filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 06/10/2013)
365 MOTION to Dismiss for Lack of Jurisdiction by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Declaration of Anitra Allen−King)(Copeland, Chad) (Entered: 06/10/2013)
366 MEMORANDUM ORDER denying without prejudice to refile 325 Motion for Order for Attorneys' Fees; finding as moot 349 Motion for Leave to File Sur−Reply; finding as moot 351 Motion for Oral Argument; finding as moot 354 Motion for Leave to File Sur−Sur−Reply; denying 360 Emergency Motion for Hearing. Signed by Chief Judge Royce C. Lamberth on 06/11/2013. (lcrcl4) (Entered: 06/11/2013)
367 Consent MOTION for Scheduling Order by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 06/13/2013)
368 ORDER granting 367 Motion for Scheduling Order. Plaintiffs' opposition to 365 due 07/03/13; defendant's oppositions to 358 & 359 due 07/15/13; defendant's reply in support of 365 due 07/26/13; plaintiffs' replies in support of 358 & 359 due 08/09/13. Signed by Chief Judge Royce C. Lamberth on 06/13/2013. (lcrcl4) (Entered: 06/13/2013)
Set/Reset Deadlines: Plaintiff's Opposition due by 7/3/2013; Defendant's Opposition due by 7/15/13; Defendant's Reply due by 7/26/2013; Plaintiff's Reply due by 8/9/13. (mpt, ) (Entered: 06/14/2013)
369 Memorandum in opposition to re 365 MOTION to Dismiss for Lack of Jurisdiction filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit Affidavit of Margaret A. Kohn, # 2 Text of Proposed Order)(Liu, Jane) (Entered: 07/03/2013)
370 Memorandum in opposition to re 358 MOTION to Certify Class and for Reinstatement of Findings of Liability and Order Granting Relief filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit OSSE Report)(Copeland, Chad) (Entered: 07/15/2013)
371 Memorandum in opposition to re 359 MOTION to Amend/Correct 61 Amended Complaint, filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit OSSE Report)(Copeland, Chad) (Entered: 07/15/2013)
372 Consent MOTION for Extension of Time to File Response/Reply as to 365 MOTION to Dismiss for Lack of Jurisdiction , 358 MOTION to Certify Class and for Reinstatement of Findings of Liability and Order Granting Relief, 359 MOTION to Amend/Correct 61 Amended Complaint, , MOTION for Leave to File Excess Pages by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 07/26/2013)
373 REPLY to opposition to motion re 365 MOTION to Dismiss for Lack of Jurisdiction filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 07/26/2013)

08/09/2013
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08/27/2013 08/30/2013 09/10/2013

374 Memorandum in opposition to re 372 Consent MOTION for Extension of Time to File Response/Reply as to 365 MOTION to Dismiss for Lack of Jurisdiction , 358 MOTION to Certify Class and for Reinstatement of Findings of Liability and Order Granting Relief, 359 M MOTION for Leave to File Excess Pages filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 08/09/2013)
375 ORDER granting 372 Motion for Extension of Time to File Response/Reply; granting 372 Motion for Leave to File Excess Pages. Signed by Judge Royce C. Lamberth on 08/13/2013. (lcrcl4) (Entered: 08/13/2013)
376 MOTION for Leave to File SURREPLY to re 365 MOTION to Dismiss for Lack of Jurisdiction filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Pl. Ex. 1 − Sur−Reply Brief)(Terris, Bruce) Modified on 8/19/2013 to correct event(rdj). (Entered: 08/13/2013)
377 NOTICE OF SUPPLEMENTAL AUTHORITY by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit In re: Rail Freight Fuel Surcharge Antitrust Litigaiton)(Copeland, Chad) (Entered: 08/14/2013)
378 NOTICE OF SUPPLEMENTAL AUTHORITY by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit Affidavit of Bruce J. Terris)(Copeland, Chad) (Entered: 08/14/2013)
379 REPLY to opposition to motion re 358 MOTION to Certify Class and for Reinstatement of Findings of Liability and Order Granting Relief filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit Pl. Ex. 1)(Liu, Jane) (Entered: 08/14/2013)
380 REPLY to opposition to motion re 359 MOTION to Amend/Correct 61 Amended Complaint, filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 08/14/2013)
381 Memorandum in opposition to re 376 MOTION for Leave to File A Sur−Reply re Defendants' Motion to Dismiss filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 08/19/2013)
382 RESPONSE re 377 NOTICE OF SUPPLEMENTAL AUTHORITY, 378 NOTICE OF SUPPLEMENTAL AUTHORITY filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Liu, Jane) (Entered: 08/19/2013)
383 MOTION for Leave to File Sur−Reply by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Sur−Reply)(Copeland, Chad) (Entered: 08/27/2013)
384 Memorandum in opposition to re 383 MOTION for Leave to File Sur−Reply filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Liu, Jane) (Entered: 08/30/2013)
385 NOTICE OF SUPPLEMENTAL AUTHORITY by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG

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12/16/2013

(Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Terris, Bruce) (Entered: 09/10/2013)
386 RESPONSE re 385 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by DISTRICT OF COLUMBIA. (Blecher, Matthew) (Entered: 09/19/2013)
387 REPLY re 385 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 10/02/2013)
388 ORDER granting in part and denying in part 358 Motion to Certify Class; granting 359 Motion to Amend/Correct; denying 365 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Royce C. Lamberth on November 8, 2013. (lcrcl4) (Main Document 388 replaced on 11/8/2013) (zmpt, ). (Entered: 11/08/2013)
389 MEMORANDUM AND OPINION granting in part and denying in part 358 Motion to Certify Class; granting 359 Motion to Amend/Correct; denying 365 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Royce C. Lamberth on November 8, 2013. (lcrcl4) (Main Document 389 replaced on 11/8/2013) (zmpt, ). (Entered: 11/08/2013)
398 AMENDED COMPLAINT against DISTRICT OF COLUMBIA, CLIFFORD B. JANEY filed by BRYAN YOUNG, TF, XY, DL, FREDERICK DAVY, TAMMIKA YOUNG, TIMOTHY LANTRY, JB, ANGELIQUE MOORE, RONALD WISOR, KERIANNE PIESTER, FD, ARLETTE MANKEMI, LEAH BLAND, TAMEKA FORD, HW, MONICA DAVY, TL.(rdj) (Entered: 12/18/2013)
390 ORDER denying 376 Motion for Leave to File and denying 383 Motion for Leave to File. Signed by Judge Royce C. Lamberth on November 12, 2013. (lcrcl4) (Entered: 11/12/2013)
391 Consent MOTION for Extension of Time to File Answer to Plaintiffs' Second Amended Complaint by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 11/15/2013)
392 ORDER granting defendant's 391 Motion for an Extension of Time, until 12/20/13, to Answer plaintiffs second amended complaint (Signed by Judge Royce C. Lamberth on 11/21/13). (tj) (Entered: 11/22/2013)
393 NOTICE of Filing of Rule 23(f) Petition with D.C. Circuit by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE re 388 Order on Motion to Certify Class,, Order on Motion to Amend/Correct,, Order on Motion to Dismiss/Lack of Jurisdiction, 389 Memorandum & Opinion, (Attachments: # 1 Exhibit Rule 23(f) Petition)(Copeland, Chad) (Entered: 11/22/2013)
394 MOTION to Stay Discovery by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY (Copeland, Chad) (Entered: 11/22/2013)
395 STATUS REPORT (JOINT) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Gluckman, Todd) (Entered: 12/09/2013)
396 Memorandum in opposition to re 394 MOTION to Stay Discovery filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit Pl. Ex. 1 − Blackman v. District of Columbia, Report of the Monitor for the 2011−2012 School Year)(Gluckman, Todd) (Entered: 12/09/2013)
397 REPLY to opposition to motion re 394 MOTION to Stay Discovery filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY. (Attachments: # 1 Exhibit)(rdj) (Entered: 12/17/2013)

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Minute Entry; Proceedings held before Judge Royce C. Lamberth: Status Conference held on 12/18/2013. Oral Ruling denying 394 Motion to Stay Discovery. (Court Reporter Theresa Sorensen) (hs) (Entered: 12/18/2013)
399 NOTICE Regarding This Court's Order, dated December 18, 2013, Denying Defendants' Motion to Stay by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Gluckman, Todd) (Entered: 12/18/2013)
400 ORDER denying defendants' Motion for Stay 394 . Signed by Judge Royce C. Lamberth on December 18, 2013. (lcrcl4) (Entered: 12/18/2013)
401 ORDER regarding the Parties' Joint Report 395 . Signed by Judge Royce C. Lamberth on December 18, 2013. (lcrcl4) (Entered: 12/18/2013)
402 Amended ANSWER to 398 Amended Complaint, by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. Related document: 398 Amended Complaint, filed by ANGELIQUE MOORE, JB, TIMOTHY LANTRY, DL, TF, TAMEKA FORD, XY, FD, BRYAN YOUNG, FREDERICK DAVY, TL, TAMMIKA YOUNG, LEAH BLAND, HW, RONALD WISOR, MONICA DAVY, ARLETTE MANKEMI, KERIANNE PIESTER.(Copeland, Chad) (Entered: 12/20/2013)
403 NOTICE (Second) Regarding This Court's Order, Dated December 18, 2013, Denying Defendants' Motion to Stay by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 399 Notice (Other), (Attachments: # 1 Exhibit 1 − Petitioners' Motion to Order a Stay of Discovery)(Gluckman, Todd) (Entered: 01/02/2014)
404 MEMORANDUM AND OPINION regarding the Court's Order 400 denying the District's Motion to Stay Discovery. Signed by Judge Royce C. Lamberth on January 3, 2014. (lcrcl4). (Entered: 01/03/2014)
405 Consent MOTION for Protective Order by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Joint Proposed Protective Order)(Copeland, Chad) (Entered: 03/26/2014)
406 NOTICE of Appearance by Sara Elizabeth Tonnesen on behalf of All Defendants (Tonnesen, Sara) (Entered: 03/28/2014)
407 PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal. Signed by Judge Royce C. Lamberth on 3/27/14. (Attachments: Exhibit A) (mpt, ) (Entered: 03/31/2014)
408 Consent MOTION to Modify the Scheduling Order by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 04/02/2014)
409 ORDER Granting 408 Motion to Modify the Scheduling Order, dated April 2, 2014. (See Image for Details) Signed by Judge Royce C. Lamberth on 4/4/14. (mpt, ) (Entered: 04/09/2014)
Set/Reset Deadlines: Fact Discovery close by 7/18/2014; Plaintiffs' Expert Report(s) due by 7/18/2014; Defendants' Expert Report(s) due by 8/18/2014; Expert Discovery Close by 9/10/14; Dispositive Motions due by 10/17/2014. (mpt, ) (Entered: 04/09/2014)
410 WITHDRAWN PURSUANT TO NOTICE FILED 7/23/2014.....MOTION for Extension of Time to Complete Discovery by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE

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10/24/2014
10/28/2014

MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1 − Plaintiffs' First Post−Trial Set of Requests for Production of Documents and Set of Interrogatories, # 2 Exhibit 2 − Plaintiffs' Second Post−Trial Set of Requests for Production, # 3 Exhibit 3 − Letter from the District of Columbia, dated July 9, 2014, # 4(SEALED) Exhibit 4 − Plaintiffs' Third Post−Trial Set of Requests for Production, # 5 Text of Proposed Order)(Terris, Bruce) Modified on 7/16/2014 (td, ). Modified on 7/16/2014 (td, ). Modified on 7/24/2014 (rdj). (Entered: 07/15/2014)
411 NOTICE by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 410 MOTION for Extension of Time to Complete Discovery (Terris, Bruce) (Entered: 07/16/2014)
412 Joint MOTION to Modify the Scheduling Order by DISTRICT OF COLUMBIA (Blecher, Matthew) (Entered: 07/23/2014)
413 NOTICE OF WITHDRAWAL OF MOTION by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 410 MOTION for Extension of Time to Complete Discovery (Terris, Bruce) (Entered: 07/23/2014)
414 ORDER Granting 412 Joint Motion to Modify the Scheduling Order. (See Image for Details). Signed by Judge Royce C. Lamberth on 8/7/14. (mpt, ) (Entered: 08/08/2014)
415 NOTICE of Appearance by Lauren Seffel on behalf of All Plaintiffs (Seffel, Lauren) (Entered: 10/16/2014)
416 MOTION for Partial Summary Judgment as to Defendants' Liability Through 2007, MOTION for Judgment on Partial Findings as to Defendants' Liability for the Period From January 1, 2008, Through April 6, 2011 by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Statement of Facts Statement of Material Facts as to Which There is No Dispute, # 6 Statement of Facts Plaintiffs' Proposed Findings of Fact and Conclusions of Law, # 7 Text of Proposed Order)(Terris, Bruce) (Entered: 10/24/2014)
417 MOTION for Summary Judgment by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Child Find Policy, # 2 Exhibit Evaluation Policy, # 3 Exhibit Transition Policy, # 4 Exhibit 2011 Written Testimony of Dr. Beers, # 5 Exhibit DCPS Bio of Dr. Beers, # 6 Exhibit SPP/APR Data Summary, # 7 Exhibit Declaration of S. Compagnucci, # 8 Exhibit M. Freund Expert Report, # 9 Exhibit Compagnucci/Robinson Depo, # 10 Exhibit Freund Depo, # 11 Exhibit Dunst Depo, # 12 Exhibit Early Stages Outreach Docs, # 13 Exhibit DCPS 120 Day Timeline Policy, # 14 Exhibit Child Find Flowchart, # 15 Exhibit Maisterra Depo − June 2, 2014, # 16 Exhibit Compagnucci/Wong Depo − June 2, 2014, # 17 Exhibit Due Diligence Protocols, # 18 Exhibit Maisterra/Johnson Depo, # 19 Exhibit Compagnucci/Wong Depo − June 3, 2014, # 20 Exhibit Early Stages Intake Process Policy, # 21 Exhibit Early Stages Program Standard for Ed Assessments, # 22 Exhibit Guidance re Eligibility & IEP Meetings, # 23 Exhibit C. Dunst Expert Report & Supplement, # 24 Exhibit L. Cupingood Expert Report, # 25 Exhibit Dehaan Depo, # 26 Exhibit Maisterra Depo (July 14, 2014), # 27 Exhibit Declaration of A. Maisterra, # 28 Exhibit OSSE Special Education Monitoring 2014−2015, # 29 Exhibit June 23, 2014 OSEP APR Letter, # 30 Exhibit Programmatic Compliance Chart, # 31 Supplement Beers Depo)(Copeland, Chad) (Entered: 10/24/2014)
418 NOTICE Regarding Sealed Exhibits by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE re 417 MOTION for Summary Judgment (Blecher, Matthew) (Entered: 10/28/2014)

10/30/2014 10/31/2014 11/19/2014 11/21/2014
11/21/2014 11/21/2014
11/24/2014 12/19/2014

419 Unopposed MOTION to Withdraw as Attorney for Plaintiff Class by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Gutman, Jeffrey) (Entered: 10/30/2014)
420 NOTICE of Supplemental Filing by DISTRICT OF COLUMBIA re 417 MOTION for Summary Judgment (Attachments: # 1 Exhibit Corrected Exhibit 27 − Maisterra Declaration)(Tonnesen, Sara) (Entered: 10/31/2014)
421 ORDER Granting 419 Motion to Withdraw as Attorney Jeffrey S. Gutman terminated as Class Cousel for Plaintiffs. Signed by Judge Royce C. Lamberth on 11/18/14. (mpt, ) (Entered: 11/19/2014)
422 Memorandum in opposition to re 417 MOTION for Summary Judgment filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Text of Proposed Order)(Terris, Bruce) (Entered: 11/21/2014)
423 SEALED DOCUMENT filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 422 Memorandum in Opposition,,,,,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 19, # 2 Exhibit 20, # 3 Exhibit 23, # 4 Exhibit 24, # 5 Exhibit 34, # 6 Exhibit 48)(Terris, Bruce) (Entered: 11/21/2014)
424 Memorandum in opposition to re 416 MOTION for Partial Summary Judgment as to Defendants' Liability Through 2007 MOTION for Judgment on Partial Findings as to Defendants' Liability for the Period From January 1, 2008, Through April 6, 2011 filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit Part B Special Conditions FFY 2014 Progress Report #1, # 2 Exhibit Part B Special Conditions FFY 2013 Progress Report #3, # 3 Exhibit Dunst Deposition Excerpts, # 4 Exhibit Beers Deposition Excerpts, # 5 Exhibit Maisterra Deposition Excerpts, # 6 Exhibit Expert Report of Dr. Maxine Freund, # 7 Exhibit Compagnucci/Robinson Deposition Excerpts, # 8 Exhibit Freund Deposition Excerpts)(Copeland, Chad) (Entered: 11/21/2014)
425 CERTIFICATE OF SERVICE by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 423 Sealed Document, . (Terris, Bruce) (Entered: 11/24/2014)
426 REPLY to opposition to motion re 416 MOTION for Partial Summary Judgment as to Defendants' Liability Through 2007 MOTION for Judgment on Partial Findings as to Defendants' Liability for the Period From January 1, 2008, Through April 6, 2011 filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN

12/19/2014 12/19/2014 12/23/2014 01/07/2015 01/15/2015
01/15/2015

LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9)(Terris, Bruce) (Entered: 12/19/2014)
427 MOTION Exclude Opinions and Testimony from Carl Dunst and Leonard Cupingood by DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Cupingood Appendix 1, # 2 Exhibit Plaintiffs' Discovery Responses, # 3 Exhibit Excerpts of Dunst Deposition Transcript, # 4 Exhibit OSSE Comprehensive Child Find Policy, # 5 Exhibit Excerpt of Johnson Deposition Transcript, # 6 Exhibit August 13, 2014 Email from T. Gluckman, # 7 Exhibit Excerpts of Cupingood Deposition Transcript)(Copeland, Chad) (Entered: 12/19/2014)
428 REPLY to opposition to motion re 417 MOTION for Summary Judgment filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit CHART RE CONCESSIONS, # 2 Exhibit CHART RE PROGRAM REQS, # 3 Exhibit Maisterra Depo (June 2, 2014), # 4 Exhibit Maisterra Depo (July 2, 2014), # 5 Exhibit Extended IFSP Policy, # 6 Exhibit SPP−APR Enrollment Data Summary, # 7 Exhibit Compagnucci Depo (June 3, 2014), # 8 Exhibit Compagnucci−Wong Depo (June 2, 2014), # 9 Exhibit Dunst Depo, # 10 Exhibit Freund Depo, # 11 Exhibit Compagnucci−Robison Depo Excerpts, # 12 Exhibit Johnson Depo, # 13 Exhibit Beers Depo)(rdj) (Entered: 12/22/2014)
429 Consent MOTION for Extension of Time to File Response/Reply as to 427 MOTION Exclude Opinions and Testimony from Carl Dunst and Leonard Cupingood by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 12/23/2014)
430 ORDER granting 429 Consent Motion to Modify Briefing Schedule re 427 MOTION to Exclude Opinions and Testimony from Carl Dunst and Leonard Cupingood. It is ORDERED that the plaintiffs' response is due 1/16/2015; and it is FURTHER ORDERED that defendants' reply in support of their motion to exclude is due by 2/2/2015. Signed by Judge Royce C. Lamberth on 1/6/2015. (tg, ) (Entered: 01/07/2015)
431 Memorandum in opposition to re 427 MOTION Exclude Opinions and Testimony from Carl Dunst and Leonard Cupingood filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Text of Proposed Order)(Terris, Bruce) (Entered: 01/15/2015)
432 SEALED DOCUMENT filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 431 Memorandum in Opposition,,,,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 5, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 12, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 15, # 8 Exhibit 16, # 9 Exhibit 17, # 10 Exhibit 18, # 11 Exhibit 19, # 12 Exhibit 20, # 13 Exhibit 21, # 14 Exhibit 22, # 15 Exhibit 23, # 16 Exhibit 24, # 17 Exhibit 25, # 18 Exhibit 26, # 19 Exhibit 27, # 20 Exhibit 28, # 21 Exhibit 29, # 22 Exhibit 30, # 23 Exhibit 31, # 24 Exhibit 32, # 25 Exhibit 33, # 26

01/21/2015 01/21/2015 01/21/2015 01/21/2015 01/29/2015 02/03/2015 02/06/2015
02/09/2015 02/11/2015

Exhibit 34, # 27 Exhibit 35, # 28 Exhibit 36, # 29 Exhibit 37, # 30 Exhibit 38, # 31 Exhibit 39, # 32 Exhibit 45, # 33 Certificate of Service)(Terris, Bruce) (Entered: 01/15/2015)
433 NOTICE of Filing Supplemental Exhibit by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 431 Memorandum in Opposition,,,,, (Attachments: # 1 Exhibit 47)(Terris, Bruce) (Entered: 01/21/2015)
434 SEALED DOCUMENT filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 433 Notice (Other), 431 Memorandum in Opposition,,,,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 47, # 2 Certificate of Service)(Terris, Bruce) (Entered: 01/21/2015)
435 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Sara Elizabeth Tonnesen terminated. (Tonnesen, Sara) (Entered: 01/21/2015)
436 MOTION for Leave to File Sur−Reply in Response to Defendants' Reply in Further Support of Their Motion for Summary Judgment by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Liu, Jane) (Additional attachment(s) added on 1/22/2015: # 2 Exhibit Surreply) (jf, ). (Entered: 01/21/2015)
437 Consent MOTION for Extension of Time to File Response/Reply as to 427 MOTION Exclude Opinions and Testimony from Carl Dunst and Leonard Cupingood by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 01/29/2015)
438 ORDER Granting 437 Motion for Extension of Time to File Response/Reply re 427 MOTION Exclude Opinions and Testimony from Carl Dunst and Leonard Cupingood . Reply in Support due by 2/6/2015. Signed by Judge Royce C. Lamberth on 2/3/15. (mpt) (Entered: 02/04/2015)
439 REPLY to opposition to motion re 427 MOTION Exclude Opinions and Testimony from Carl Dunst and Leonard Cupingood filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit Excerpts of Cupingood Deposition Testimony, # 2 Exhibit Excerpts of Dunst Deposition Testimony, # 3 Exhibit Excerpts of July 14, 2014 Johnson, Proddutur, Maisterra Deposition Testimony, # 4 Exhibit Defendants' Business Rules for Reporting, # 5 Exhibit Defendants' Responses to Plaintiffs' Requests for Discovery, # 6 Exhibit Plaintiffs' Rule 30(b)(6) Notice of Deposition to Defendants, # 7 Exhibit Excerpts of June 2, 2014 Maisterra Deposition Testimony, # 8 Exhibit Excerpts of July 14, 2014 Maisterra Deposition Testimony, # 9 Exhibit Excerpts of Beaner Deposition Testimony, # 10 Exhibit Excerpts of Freund Deposition Testimony)(Copeland, Chad) (Entered: 02/06/2015)
440 Memorandum in opposition to re 436 MOTION for Leave to File Sur−Reply in Response to Defendants' Reply in Further Support of Their Motion for Summary Judgment filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 02/09/2015)
441 REPLY to opposition to motion re 436 MOTION for Leave to File Sur−Reply in Response to Defendants' Reply in Further Support of Their Motion for Summary Judgment filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 02/11/2015)

04/03/2015
04/15/2015
06/10/2015 06/10/2015 06/10/2015 06/10/2015 06/11/2015 06/12/2015
06/16/2015 06/23/2015
06/25/2015 06/26/2015

442 Joint MOTION for Scheduling Order to Schedule a Status Conference by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Terris, Bruce) (Entered: 04/03/2015)
443 Consent MOTION For An Order Requiring Payment of Expert Fees and Expenses by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Terris, Bruce) (Entered: 04/15/2015)
444 MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on 6/10/15. (mpt) (Entered: 06/11/2015)
445 ORDER Granting Plaintiff's Motion for Summary Judgment 416 ; Denying Defendant's Motion 427 to Exclude Opinions; Denying Plaintiff's Motion 436 for Leave to File a Sur−Reply; Denying Defendant's Motion 417 for Summary Judgment. (See Image for Details). Signed by Judge Royce C. Lamberth on 6/10/15. (mpt) (Entered: 06/11/2015)
446 ORDER Granting 442 Motion for Scheduling Order; Status Conference set for 6/30/2015 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth. (See Image for Details)Signed by Judge Royce C. Lamberth on 6/10/15. (mpt) (Entered: 06/11/2015)
447 ORDER Granting 443 Motion for an Order Requiring Payment of Expert Fees and Expenses. ORDERED that defendants shall pay plaintiffs' counsel, Terris, Pravlik & Millian, LLP, $23,238.96 within 45 days of the date of this order. Signed by Judge Royce C. Lamberth on 6/10/15. (mpt) (Entered: 06/11/2015)
448 MOTION to Continue by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Email from L.Seffel on behalf of B. Terris, # 2 Exhibit Email from B. Terris)(Copeland, Chad) (Entered: 06/11/2015)
449 Memorandum in opposition to re 448 MOTION to Continue filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 06/12/2015)
450 REPLY to opposition to motion re 448 MOTION to Continue filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 06/16/2015)
451 Joint MOTION for Extension of Time to File the Joint Status Report by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 06/23/2015)
452 STATUS REPORT (JOINT) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 06/25/2015)
453 ORDER granting 448 Motion to Continue the status conference set for 6/30/2015. Status Conference reset for 7/7/2015, at 03:00 PM in Courtroom 22A before Judge Royce C. Lamberth. The parties' joint motion 451 for an extension of time to file the joint status report is also granted. The parties' joint status report related to the

06/26/2015 07/07/2015 07/20/2015 07/29/2015
07/29/2015
08/14/2015 08/21/2015 08/24/2015
08/24/2015
08/26/2015

upcoming status conference is due on 6/25/2015. Signed by Judge Royce C. Lamberth on 6/24/2015. (tth) Modified on 6/26/2015 (tth). Modified on 6/26/2015 (zmpt). (Entered: 06/26/2015)
Set/Reset Hearings: Status Conference set for 7/7/2015 is 03:00 PM instead of 3:30pm in Courtroom 22A before Judge Royce C. Lamberth. (mpt) (Entered: 06/26/2015)
Minute Entry; for proceedings held before Judge Royce C. Lamberth. Status Conference held on 7/7/2015. Pretrial Statement due by 10/26/2015. Pretrial Conference set for 10/29/2015 at 03:30 PM in Courtroom 22A. Bench Trial set for 11/12/2015 at 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth. (Court Reporter Annette Montalvo) (hs) (Entered: 07/07/2015)
454 NOTICE of Proposed Order (Parties' Joint Proposed Pre−Trial Schedule) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 07/20/2015)
455 MOTION in Limine Regarding Plaintiffs' Factual Summary by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Terris, Bruce) (Entered: 07/29/2015)
456 SEALED DOCUMENT filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 455 MOTION in Limine Regarding Plaintiffs' Factual Summary (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Service)(Terris, Bruce) (Entered: 07/29/2015)
457 Consent MOTION for Extension of Time to Oppose Plaintiffs Motion in Limine [Dkt. No. 455] by DISTRICT OF COLUMBIA (Blecher, Matthew) (Entered: 08/14/2015)
458 ORDER; granting 457 Motion for Extension of Time, Defendant's Response due by 8/24/2015, Signed by Judge Royce C. Lamberth on 8/20/2015. (hs) (Entered: 08/21/2015)
459 Memorandum in opposition to re 455 MOTION in Limine Regarding Plaintiffs' Factual Summary filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit Excepts from Deposition of Dr. Amy Maisterra, # 2 Exhibit September 6, 2014 Email from T. Gluckman, # 3 Exhibit Excerpts from Deposition of Dr. Leonard Cupingood, # 4 Exhibit August 13, 2014 Email from C. Copeland, # 5 Exhibit September 2, 2014 Email from C. Copeland, # 6 Exhibit Excerpts from Deposition of Alafia Johnson, # 7 Exhibit August 15, 2014 Email from T. Gluckman, # 8 Exhibit Excerpts from Deposition of Dr. Carl Dunst)(Copeland, Chad) (Entered: 08/24/2015)
460 Cross MOTION in Limine to Exclude Plaintiffs' Factual Summary by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Excerpts from Deposition of Dr. Amy Maisterra, # 2 Exhibit February 6, 2014 Email from T. Gluckman, # 3 Exhibit Excerpts from Deposition of Dr. Leonard Cupingood, # 4 Exhibit August 13, 2014 Email from C. Copeland, # 5 Exhibit September 2, 2014 Email from C. Copeland, # 6 Exhibit Excerpts from Deposition of Alafia Johnson, # 7 Exhibit August 15, 2014 Email from T. Gluckman, # 8 Exhibit Excerpts from Deposition of Dr. Carl Dunst)(Copeland, Chad) (Entered: 08/24/2015)
461 ORDER; Adopting Joint Proposed Pre−Trial Schedule. Attorney Meet and Confer Conference due by 10/9/2015. Motions in Limine due by 9/24/2015. Joint Pretrial Statement due by 10/26/2015. Proposed Findings of Fact due by 10/29/2015. (See order for further details.) Pretrial Conference set for 10/29/2015 at 03:30 PM. Bench

08/27/2015 09/03/2015 09/03/2015 09/14/2015 09/21/2015 09/21/2015 09/21/2015 10/08/2015 10/08/2015
10/08/2015

Trial set for 11/12/2015 at 10:00 AM in Courtroom 22A, Signed by Judge Royce C. Lamberth on 8/25/2015. (hs) (Entered: 08/26/2015)
462 NOTICE & Errata by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE re 460 Cross MOTION in Limine to Exclude Plaintiffs' Factual Summary, 459 Memorandum in Opposition,, (Attachments: # 1 Exhibit Redacted Exhibit 5)(Copeland, Chad) (Entered: 08/27/2015)
463 REPLY to opposition to motion re 455 MOTION in Limine Regarding Plaintiffs' Factual Summary filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 4, # 2 Exhibit 5)(Terris, Bruce) (Entered: 09/03/2015)
464 RESPONSE re 460 Cross MOTION in Limine to Exclude Plaintiffs' Factual Summary filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 4, # 2 Exhibit 5)(Terris, Bruce) (Entered: 09/03/2015)
465 REPLY to opposition to motion re 460 Cross MOTION in Limine to Exclude Plaintiffs' Factual Summary filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Attachments: # 1 Exhibit Excerpts from Deposition of Dr. Amy Maisterra (June 2, 2014), # 2 Exhibit Excerpt from Deposition of Dr. Leonard Cupingood, # 3 Exhibit Excerpts from Deposition of Dr. Carl Dunst)(Copeland, Chad) (Entered: 09/14/2015)
466 MOTION to Dismiss the Second Claim of Plaintiffs' Second Amended Complaint by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 09/21/2015)
467 MOTION Decertify Subclass One by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 09/21/2015)
468 MOTION for Reconsideration re 444 Memorandum & Opinion by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Excerpts from Deposition of Dr. Maxine Freund, # 2 Exhibit Excerpts from Deposition of Dr. Carl Dunst, # 3 Exhibit OSSE Part C to Part B Transition Policy, # 4 Exhibit June 23, 2014 OSEP Correspondence, # 5 Exhibit Excerpts from Deposition of Dr. Amy Maisterra)(Copeland, Chad) (Entered: 09/21/2015)
469 RESPONSE re 467 MOTION Decertify Subclass One filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 10/08/2015)
470 RESPONSE re 468 MOTION for Reconsideration re 444 Memorandum & Opinion filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Text of Proposed Order)(Terris, Bruce) (Entered: 10/08/2015)
471 RESPONSE re 466 MOTION to Dismiss the Second Claim of Plaintiffs' Second Amended Complaint filed by LEAH BLAND, DORIS COCKRELL, FREDERICK

10/16/2015 10/16/2015 10/16/2015 10/22/2015
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10/22/2015
10/23/2015 10/23/2015 10/23/2015 10/23/2015

DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Text of Proposed Order)(Terris, Bruce) (Entered: 10/08/2015)
472 REPLY to opposition to motion re 467 MOTION Decertify Subclass One filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 10/16/2015)
473 REPLY to opposition to motion re 468 MOTION for Reconsideration re 444 Memorandum & Opinion filed by MICHELLE RHEE. (Copeland, Chad) (Entered: 10/16/2015)
474 REPLY to opposition to motion re 466 MOTION to Dismiss the Second Claim of Plaintiffs' Second Amended Complaint filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 10/16/2015)
475 NOTICE Plaintiffs' Submission of Written Direct Testimony by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit Direct Testimony of Carl J. Dunst, # 2 Exhibit Direct Testimony of Leonard A. Cupingood)(Terris, Bruce) (Attachment 2 replaced on 11/8/2016) (zad). (Entered: 10/22/2015)
476 SEALED DOCUMENT filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 475 Notice (Other), (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Direct Testimony of Carl J. Dunst, # 2 Exhibit Direct Testimony of Leonard A. Cupingood, # 3 Certificate of Service)(Terris, Bruce) (Entered: 10/22/2015)
477 NOTICE of Defendants' Direct Examinations by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit 1: Direct Examination of Dr. Amy Maisterra, # 2 Exhibit 2: Direct Examination of Kerda DeHaan, # 3 Exhibit 3: Direct Examination of Dr. Nathaniel Beers, # 4 Exhibit 4: Direct Examination of Dr. Travis Wright, # 5 Exhibit 5: Direct Examination of Donna Anthony, # 6 Exhibit 6: Direct Examination of Brian Massey, # 7 Exhibit 7: Direct Examination of Sean Compagnucci, # 8 Exhibit 8: Direct Examination of Carla Watson, # 9 Exhibit 9: Direct Examination of Jessica Roche, # 10 Exhibit 10: Direct Examination of Peter Marshall, # 11 Exhibit 11: Direct Examination of Jeff Noel, # 12 Exhibit 12: Direct Examination of Anupama Proddutur, # 13 Exhibit 13: Direct Examination of Chenise Purvis, # 14 Exhibit 14: Direct Examination of Dr. Maxine Freund)(Blecher, Matthew) (Entered: 10/22/2015)
478 MEMORANDUM AND OPINION, Signed by Judge Royce C. Lamberth on 10/23/2015. (hs) (Entered: 10/23/2015)
479 ORDER; granting 455 Motion in Limine Regarding Plaintiffs' Factual Summary ; denying 460 Defendants' Cross−Motion in Limine to Exclude Plaintiffs' Factual Summary, Signed by Judge Royce C. Lamberth on 10/23/2015. (hs) (Entered: 10/23/2015)
480 ORDER granting 468 Motion for Reconsideration insofar as the appropriate standard for implementation of an IEP shall be determined post−trial. Signed by Judge Royce C. Lamberth on October 23, 2015.(lcrcl3) (Entered: 10/23/2015)
481 ORDER. Signed by Judge Royce C. Lamberth on October 23, 2015. (lcrcl3) (Entered: 10/23/2015)

10/23/2015 10/23/2015 10/26/2015
10/29/2015
10/29/2015
10/29/2015
10/29/2015 11/02/2015
11/02/2015
11/03/2015 11/04/2015 11/04/2015

482 MEMORANDUM AND OPINION DENYING defendants' Motion to Decertify Subclass 1 467 . Signed by Judge Royce C. Lamberth on October 23, 2015.(lcrcl3) (Entered: 10/23/2015)
483 ORDER denying 466 Motion to Dismiss without prejudice to further consideration post−trial. Signed by Judge Royce C. Lamberth on October 23, 2015.(lcrcl3) (Entered: 10/23/2015)
484 PRETRIAL STATEMENT by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG. (Attachments: # 1 Appendix 1 − Plaintiffs' Trial Exhibit List, # 2 Appendix 2 − Plaintiffs' Designations List, # 3 Appendix 3 − Defendants' Trial Exhibit List)(Terris, Bruce) (Entered: 10/26/2015)
485 NOTICE (Plaintiffs' Submission of Their Pre−Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Terris, Bruce) (Entered: 10/29/2015)
486 SEALED DOCUMENT filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 485 Notice (Other), (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Certificate of Service)(Terris, Bruce) (Entered: 10/29/2015)
487 NOTICE of Plaintiffs' Submission of Direct Testimony by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit Direct Testimony of Lauren Seffel)(Terris, Bruce) (Entered: 10/29/2015)
Minute Entry; for proceedings held before Judge Royce C. Lamberth: Pretrial Conference held on 10/29/2015. Bench Trial set for 11/12/2015 at 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth. (Court Reporter Lisa Foradori.) (hs) (Entered: 10/29/2015)
488 Consent MOTION to Clarify the Record by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 11/02/2015)
489 MOTION to Submit Supplemental Written Direct Testimony by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit Supplemental Direct Testimony of Dr. Cupingood, # 2 Text of Proposed Order)(Terris, Bruce) (Entered: 11/02/2015)
490 MOTION for Leave to File Supplemental Direct Examination by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit 1: Supplemental Direct Examination of Sean Compagnucci)(Blecher, Matthew) (Entered: 11/03/2015)
491 ORDER; granting 488 Motion to Clarify the Record, Signed by Judge Royce C. Lamberth on 11/3/2015. (hs) (Entered: 11/04/2015)
492 Memorandum in opposition to re 489 MOTION to Submit Supplemental Written Direct Testimony filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 11/04/2015)

11/06/2015
11/06/2015
11/06/2015 11/09/2015 11/09/2015 11/09/2015 11/12/2015 11/12/2015 11/13/2015
11/16/2015 11/16/2015 11/16/2015 11/24/2015

493 RESPONSE re 490 MOTION for Leave to File Supplemental Direct Examination filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Text of Proposed Order)(Terris, Bruce) (Entered: 11/06/2015)
494 REPLY to opposition to motion re 489 MOTION to Submit Supplemental Written Direct Testimony of Dr. Cupingood filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 11/06/2015)
495 PRETRIAL ORDER granting 489 plaintiffs' motion to submit supplemental written direct testimony and overruling defendants' evidentiary objections to three of plaintiffs' exhibits. Signed by Judge Royce C. Lamberth on November 6, 2015.(lcrcl3) (Entered: 11/06/2015)
496 REPLY to opposition to motion re 490 MOTION for Leave to File Supplemental Direct Examination filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 11/09/2015)
497 MOTION to Compel , MOTION Exclude Plaintiffs' Factual Summary re 479 Order on Motion in Limine, by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Questions Where Privilege Asserted, # 2 Exhibit Statements from Plaintiffs' Counsel During Deposition)(Copeland, Chad) (Entered: 11/09/2015)
498 ORDER denying 490 Defendants' Motion for Leave to File Supplemental Written Direct Examination. Signed by Judge Royce C. Lamberth on November 9, 2015.(lcrcl3) (Entered: 11/09/2015)
Minute Entry for proceedings held before Judge Royce C. Lamberth: Bench Trial held on 11/12/2015. Trial begun, evidence entered and bench trial continued to 11/13/2015 @ 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth. Witnesses: Dr. Leonard A. Cupingood; Dr. Carl Dunst; Lauren Seffel. (Court Reporter: Lisa Foradori.) (tj) (Entered: 11/12/2015)
499 ORDER denying 497 Motion to Compel Foundational Evidence or to Exclude Plaintiffs' Factual Summary. Signed by Judge Royce C. Lamberth on November 12, 2015.(lcrcl3) (Entered: 11/12/2015)
Minute Entry for proceedings held before Judge Royce C. Lamberth: Bench Trial held on 11/13/2015 and continued to 11/16/15 at 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth. Written testimony of Dr. Amy Maisterra, Kerda DeHaan, Jessica Roche, Sean Compagnucci, Anupama Proddutur, Dr. Nathaniel Beers, Jeffery Noel, Peter Marshall, Chenise Purvis and Brian Massey admitted to evidence. Oral Motion to Strike portions of Dr. Amy Maisterra's written testimony HEARD and GRANTED. Witnesses: Dr. Amy Maisterra, Kerda DeHaan, Jessica Roche, Sean Compagnucci, Anupama Proddutur, Dr. Nathaniel Beers and Dr. Carl Dunst. (Court Reporter Lisa Foradori.) (zsm) (Entered: 11/13/2015)
Minute Entry for proceedings held before Judge Royce C. Lamberth: Bench Trial held and concluded on 11/16/2015. (Proposed Findings of Fact and Conclusions of Law due by 1/22/2016). Witnesses: Carla Watson; Dr. Travis Wright; Dr. Maxine Freund. (Court Reporter: Lisa Foradori). (kt) (Entered: 11/16/2015)
500 Exhibit List by Plaintiffs. (kt) (Entered: 11/17/2015)
501 Exhibit List by Defendants. (kt) (Entered: 11/17/2015)
502 NOTICE Regarding Plaintiffs' Exhibit List by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL,

11/30/2015 11/30/2015 12/08/2015
12/08/2015
12/08/2015

RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 500 Exhibit List (Attachments: # 1 Exhibit 1: Plaintiffs' Exhibit List)(Terris, Bruce) (Entered: 11/24/2015)
503 NOTICE OF WITHDRAWAL OF APPEARANCE as to LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. Attorney Jane M. Liu terminated. (Liu, Jane) (Entered: 11/30/2015)
504 NOTICE OF WITHDRAWAL OF APPEARANCE as to LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. Attorney Lauren Seffel terminated. (Seffel, Lauren) (Entered: 11/30/2015)
505 TRANSCRIPT OF PROCEEDINGS before Judge Royce C. Lamberth held on 11−12−15; Page Numbers: 1−189. Date of Issuance:12−8−15. Court Reporter/Transcriber Lisa M. Foradori, Telephone number 202−354−3269, Transcripts may be ordered by submitting the <a href=http://www.dcd.uscourts.gov/dcd/node/2189>Transcript Order Form.</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/29/2015. Redacted Transcript Deadline set for 1/8/2016. Release of Transcript Restriction set for 3/7/2016.(Foradori, Lisa) (Entered: 12/08/2015)
506 TRANSCRIPT OF PROCEEDINGS before Judge Royce C. Lamberth held on 11−13−15; Page Numbers: 1−65. Date of Issuance:12−8−15. Court Reporter/Transcriber Lisa M. Foradori, Telephone number 202−354−3269, Transcripts may be ordered by submitting the <a href=http://www.dcd.uscourts.gov/dcd/node/2189>Transcript Order Form.</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/29/2015. Redacted Transcript Deadline set for 1/8/2016. Release of Transcript Restriction set for 3/7/2016.(Foradori, Lisa) (Entered: 12/08/2015)
507 TRANSCRIPT OF PROCEEDINGS before Judge Royce C. Lamberth held on 11−16−15; Page Numbers: 1−98. Date of Issuance:12−8−15. Court Reporter/Transcriber Lisa M. Foradori, Telephone number 202−354−3269, Transcripts may be ordered by submitting the <a href=http://www.dcd.uscourts.gov/dcd/node/2189>Transcript Order Form.</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is

01/15/2016 01/15/2016 02/05/2016 02/05/2016
02/05/2016
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02/08/2016
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located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/29/2015. Redacted Transcript Deadline set for 1/8/2016. Release of Transcript Restriction set for 3/7/2016.(Foradori, Lisa) (Entered: 12/08/2015)
508 Consent MOTION to Modify Schedule by DISTRICT OF COLUMBIA (Blecher, Matthew) (Entered: 01/15/2016)
509 ORDER granting 508 Motion to Modify the Schedule. Signed by Judge Royce C. Lamberth on January 15, 2016.(lcrcl3) (Entered: 01/15/2016)
510 MOTION to Dismiss by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 02/05/2016)
511 NOTICE by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit Plaintiffs' Post−Trial Proposed Findings of Fact and Conclusions of Law (Redacted))(Terris, Bruce) (Entered: 02/05/2016)
512 NOTICE Related to Filing Under Seal by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 511 Notice (Other), (Terris, Bruce) (Entered: 02/05/2016)
513 Proposed Findings of Fact by DISTRICT OF COLUMBIA. (Blecher, Matthew) (Entered: 02/05/2016)
514 SEALED DOCUMENT filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 512 Notice (Other), 511 Notice (Other), (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Plaintiffs' Post−Trial Proposed Findings of Fact and Conclusions of Law (Confidential), # 2 Exhibit Plaintiffs' Post−Trial Proposed Findings of Fact and Conclusions of Law Regarding Individual Children (Confidential), # 3 Certificate of Service)(Terris, Bruce) (Entered: 02/08/2016)
515 NOTICE Related to Issues Filing Under Seal by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 514 Sealed Document,, 511 Notice (Other), 512 Notice (Other), (Terris, Bruce) (Entered: 02/08/2016)
516 RESPONSE re 510 MOTION to Dismiss filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 02/19/2016)
517 REPLY to opposition to motion re 510 MOTION to Dismiss filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 02/29/2016)
518 ORDER denying 510 Motion to Dismiss. Signed by Judge Royce C. Lamberth on May 18, 2016.(lcrcl3) (Entered: 05/18/2016)
519 MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth on May 18, 2016.(lcrcl3) (Entered: 05/18/2016)
520 MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Royce C. Lamberth on May 18, 2016.(lcrcl3) (Entered: 05/18/2016)

05/18/2016 06/01/2016
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521 ORDER. Signed by Judge Royce C. Lamberth on May 18, 2016.(lcrcl3) (Entered: 05/18/2016)
522 MOTION for a Status Conference or, in the Alternative, To Modify the Schedule Regarding Plaintiffs' Motion for Attorneys' Fees and Expenses by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order (Proposed Orders))(Terris, Bruce) (Entered: 06/01/2016)
523 RESPONSE re 522 MOTION for a Status Conference or, in the Alternative, To Modify the Schedule Regarding Plaintiffs' Motion for Attorneys' Fees and Expenses filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 06/03/2016)
524 REPLY to opposition to motion re 522 MOTION for a Status Conference or, in the Alternative, To Modify the Schedule Regarding Plaintiffs' Motion for Attorneys' Fees and Expenses filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Terris, Bruce) (Entered: 06/08/2016)
525 ORDER granting 522 Motion for a Status Conference regarding attorneys' fees and expenses. Upon consideration of the Plaintiffs' Motion; it is hereby ORDERED that a Status Conference shall be scheduled for June 30, 2016 at 10:00 AM in Courtroom 22A before Judge Royce C. Lamberth. Signed by Judge Royce C. Lamberth on 6/9/2016. (tg) (Entered: 06/09/2016)
526 ENTERED IN ERROR.....NOTICE of Appeal by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Copeland, Chad) Modified on 6/16/2016 (zrdj). (Entered: 06/16/2016)
NOTICE OF ERROR re 526 Notice (Other); emailed to chad.copeland@dc.gov, cc'd 18 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect event used, 2. Counsel is INSTRUCTED to refile said pleading using the Notice of Appeal event, found under Appeal Documents. ACTION REQUIRED (zrdj, ) (Entered: 06/16/2016)
527 NOTICE OF APPEAL TO DC CIRCUIT COURT re 518 , 519 , 520 , and 521 by DISTRICT OF COLUMBIA, MICHELLE RHEE, DEBORAH GIST, CLIFFORD B. JANEY. Fee Status: No Fee Paid. Parties have been notified. (Copeland, Chad) Modified on 6/17/2016 to add linkage (zrdj). (Entered: 06/16/2016)
528 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 527 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 06/17/2016)
MINUTE ORDER: The Status Conference scheduled for June 30, 2016, at 10:00 a.m. will no longer be held in Courtroom 22A. It will be held in Courtroom 9, on the Fourth Floor, before Judge Royce C. Lamberth. Signed by Judge Royce C. Lamberth on 6/17/2016. (ad) (Entered: 06/17/2016)
529 Consent MOTION Correct the Court's Decision re 520 Findings of Fact & Conclusions of Law by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 06/17/2016)
530 Consent MOTION to Amend/Correct 520 Findings of Fact & Conclusions of Law by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 06/17/2016)

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09/28/2016

531 ORDER granting Defendants' Consent Motion 529 to Correct the Court's Decision. Signed by Judge Royce C. Lamberth on June 21, 2016.(lcrcl3) (Entered: 06/21/2016)
532 ORDER granting Plaintiffs' Consent Motion 530 to Correct the Court's Decision. Signed by Judge Royce C. Lamberth on June 21, 2016.(lcrcl3) (Entered: 06/21/2016)
533 CORRECTED MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Royce C. Lamberth on June 21, 2016.(lcrcl3) (Entered: 06/21/2016)
534 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 533 Memorandum & Opinion by DISTRICT OF COLUMBIA, MICHELLE RHEE, DEBORAH GIST, CLIFFORD B. JANEY. Fee Status: No Fee Paid. Parties have been notified. (Copeland, Chad) (Entered: 06/24/2016)
535 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 534 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 06/27/2016)
USCA Case Number 16−7076 for 534 Notice of Appeal to DC Circuit Court filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST. (zrdj) (Entered: 06/27/2016)
Minute Entry for proceedings held before Judge Royce C. Lamberth: Status Conference held on 6/30/2016 In Regards To 522 Motion For A Status Conference Or, In The Alternative, To Modify the Schedule Regarding Plaintiffs' Motion for Attorneys' Fees And Expenses. (Court Reporter WILLIAM ZAREMBA.) (mac) (Entered: 06/30/2016)
536 ORDER setting briefing schedule regarding plaintiffs' application for attorneys' fees and related expenses: Plaintiffs' Motion and Supporting Memorandum due by 9/28/2016; Defendants' Opposition Brief due by 12/27/2016; Plaintiffs' Reply Brief due by 2/10/2017. Signed by Judge Royce C. Lamberth on 6/30/2016. (tg) Modified deadline on 6/30/2016 (tg). (Entered: 06/30/2016)
537 MOTION for Attorney Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1 (Affidavit of Bruce J. Terris), # 2 Exhibit 2 (TPM Timekeeper Chart), # 3 Exhibit 3 (Resumes of TPM Attorneys), # 4 Exhibit 4 (Summary of Fees and Expenses (Period 1 and Period 2)), # 5 Exhibit 5 (TPM Summary Time by Category for Main Case (Period 1)), # 6 Exhibit 6 (TPM Time Records by Category for Main Case (Period 1)), # 7 Exhibit 7 (TPM No Charge Time Records by Category (Period 1)), # 8 Exhibit 8 (TPM Summary of Expenses (Period 1)), # 9 Exhibit 9 (TPM Reductions of Time and Expenses from Plaintiffs Reply in Support of Plaintiffs 2012 Fee Application (Period 1)), # 10 Exhibit 10 (TPM Summary of Additional Reductions of Time and Expenses (Period 1)), # 11 Exhibit 11 (TPM Summary of Time by Billing Client and Category (Period 2)), # 12 Exhibit 12 (TPM Time Records by Category (Period 2)), # 13 Exhibit 13 (TPM No Charge Time Records (Period 2)), # 14 Exhibit 14 (TPM Summary of Expenses (Period 2)), # 15 Exhibit 15 (Affidavit of Jeffrey S. Gutman), # 16 Exhibit 16 (Affidavit of Margaret A. Kohn), # 17 Exhibit 17 (Affidavit of Cyrus Mehri), # 18 Exhibit 18 (Affidavit of Dr. Carl J. Dunst), # 19 Exhibit 19 (Carl J. Dunsts Fees and Expenses Related to His 2010 Deposition and the 2011 and 2015 Trials, which are Being Requested pursuant to F.R.C.P. Rule 26, 28 U.S.C. 1920, and 28 U.S.C. 1821), # 20 Exhibit 20 (Affidavit of Dr. Leonard A. Cupingood), # 21 Exhibit 21 (Leonard A. Cupingoods Fees and Expenses Related to his 2010 Deposition and the 2011 and 2015 Trials, which are Being Requested pursuant to F.R.C.P. Rule 26, 28 U.S.C. 1920, and 28 U.S.C. 1821), # 22 Exhibit 22 (U.S. Department of Commerce, Bureau of Labor Statistics, Legal Services Component of the Consumer Price Index), # 23 Exhibit 23 (Laffey Matrix Updated Using Legal Services Index (LSI Laffey Matrix)), # 24 Exhibit 24 (USAO Matrix 2015−2017), # 25 Exhibit 25 (USAO Laffey Matrix 2014−2015), # 26 Exhibit 26 (Affidavit of Carolyn Smith Pravlik), # 27 Exhibit 27 (Declaration of Michael Kavanaugh), # 28 Exhibit 28 (Affidavit of Michael P. Downey), # 29 Exhibit 29 (Affidavit of Bruce MacEwen), # 30 Exhibit 30 (Affidavit

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of Daniel Rezneck), # 31 Exhibit 31 (Laffey Matrix Data from Laffey Affidavit of Daniel Rezneck), # 32 Exhibit 32 (1982 Martindale−Hubbell Law Directory Listings for Laffey Matrix Firms), # 33 Exhibit 33 (Declaration of Joseph A. Yablonski), # 34 Exhibit 34 (Yablonski, Both & Edelman Website), # 35 Exhibit 35 (Affidavit of L. Thomas Galloway), # 36 Exhibit 36 (Testimony of Ward Bower from Palmer v. Rice (excerpted) with Biography from Altman Weil, Inc., website), # 37 Exhibit 37 (Affidavit of David N. Webster), # 38 Exhibit 38 (ALM Legal Intelligence, 2010 Survey of Law Firm Economics), # 39 Exhibit 39 (D.C. Code Ann. §§32−1308(b)(1), 32−1308.1(m)(1)), # 40 Exhibit 40 (2012−2013 Range of Firm Billing Rates Table), # 41 Exhibit 41 (2012−2013 Average Law Firm Billing Rates Table), # 42 Exhibit 42 (2012−2013 Percentage Difference in Billing Rates Tables), # 43 Exhibit 43 (Thomson Reuters/Westlaw Legal Billing Report, August 2015), # 44 Exhibit 44 (Thomson Reuters/Westlaw Legal Billing Report, December 2015), # 45 Exhibit 45 (Thomson Reuters/Westlaw Legal Billing Report, May 2016), # 46 Exhibit 46 (U.S. Department of Commerce, Bureau of Labor Statistics, All−Items, Regional Component of the Consumer Price Index), # 47 Exhibit 47 (2015−2016 Range of Firm Billing Rates Table), # 48 Exhibit 48 (2015−2016 Average Firm Billing Rates Table), # 49 Exhibit 49 (2015−2016 Percentage Difference between 2015−2016 Market Data and 2016−2017 Rate Matrices), # 50 Exhibit 50 (Declaration of Mark N. Bravin), # 51 Exhibit 51 (Declaration of Julie Goldsmith Reiser), # 52 Exhibit 52 (Declaration of Paul D. Clement), # 53 Exhibit 53 (Declaration of Mark F. (Thor) Hearne II), # 54 Exhibit 54 (Declaration of Steven K. Davidson), # 55 Exhibit 55 (Supplemental Declaration of Steven K. Davidson), # 56 Exhibit 56 (Declaration of John P. Relman), # 57 Exhibit 57 (Declaration of Megan Cacace), # 58 Exhibit 58 (Landowners Memorandum in Support of Motion for Attorney Fees and Litigation Expenses), # 59 Exhibit 59 (E−mail from Meghan Largent to Carolyn Smith Pravlik), # 60 Exhibit 60 (Declaration of Cyrus Mehri, filed in Brown v. Medicis Pharmaceutical Corp.), # 61 Exhibit 61 (Declaration of David K. Colapinto), # 62 Exhibit 62 (Declaration of Jeffrey L. Light), # 63 Exhibit 63 (Fee Affidavit of Tamara L. Miller), # 64 Exhibit 64 (Declaration of Jessica Ring Amunson), # 65 Exhibit 65 (Affidavit of Robert Corn−Revere), # 66 Exhibit 66 (Affidavit of Anthony T. Pierce), # 67 Exhibit 67 (Affidavit of Nathan Lewin), # 68 Exhibit 68 (Affidavit of Barry Coburn), # 69 Text of Proposed Order)(Terris, Bruce) (Entered: 09/28/2016)
538 Consent MOTION to Modify the Final Order by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 12/13/2016)
539 MOTION for Extension of Time to File Defendants' Opposition to Plaintiffs' Motion for Fees and Costs by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Correspondence with Plaintiffs' Affiants)(Copeland, Chad) (Entered: 12/14/2016)
540 RESPONSE re 539 MOTION for Extension of Time to File Defendants' Opposition to Plaintiffs' Motion for Fees and Costs filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 12/16/2016)
541 REPLY to opposition to motion re 539 MOTION for Extension of Time to File Defendants' Opposition to Plaintiffs' Motion for Fees and Costs filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 12/19/2016)
542 ORDER denying 538 Motion to Modify for lack of jurisdiction due to the pending appeal. If remanded, (see Smith v Pollin, 194 F.2d 349 (D.C. Cir. 1952)), the Court would Order. Signed by Judge Royce C. Lamberth on 12/28/16. (zlsj) (Entered: 12/29/2016)
543 ORDER granting 539 Motion for Extension of Time to File. Defendant's shall file their Opposition no later than February 11, 2017. Signed by Judge Royce C. Lamberth on 12/29/16. (zlsj) (Entered: 12/29/2016)

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02/07/2017
02/10/2017 02/11/2017

Set/Reset Deadlines: Responses to Plaintiff's Motion for an Award of Litigation Costs, including Attorneys' Fees and Related Expenses due by 2/11/2017. (zlsj) (Entered: 12/29/2016)
544 NOTICE of Filing Report Describing Compliance with Programmatic Requirements by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit Report Describing Compliance with Programmatic Requirements)(Copeland, Chad) (Entered: 12/30/2016)
545 Consent MOTION for Order Regarding Notice to Subclass Members Related to Plaintiffs' Motion for an Award of Litigation Costs, Including Attorneys' Fees and Related Expenses by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Terris, Bruce) (Entered: 01/12/2017)
546 ORDER granting 545 Motion for Order. SEE CLASS ACTION NOTICE PROVIDED ON COURT'S WEBSITE. Signed by Judge Royce C. Lamberth on 1/23/17. (zlsj) (Entered: 01/26/2017)
547 NOTICE of Appearance by Carolyn Smith Pravlik on behalf of All Plaintiffs (Pravlik, Carolyn) (Entered: 02/06/2017)
548 NOTICE of Appearance by Kathleen Lillian Millian on behalf of All Plaintiffs (Millian, Kathleen) (Entered: 02/06/2017)
549 NOTICE OF WITHDRAWAL OF APPEARANCE as to LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. Attorney Bruce J. Terris terminated. (Gluckman, Todd) (Entered: 02/06/2017)
NOTICE OF AMENDED CLASS ACTION NOTICE ON COURT'S WEBSITE re 546 Order on Motion for Order. (zlsj) (Entered: 02/06/2017)
550 Consent MOTION to Modify Reporting Period by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Attachments: # 1 Exhibit Limited Remand from D.C. Circuit)(Copeland, Chad) (Entered: 02/06/2017)
551 NOTICE (Praecipe Regarding Notice to Subclass Members Related to Plaintiffs' Motion for an Award of Litigation Costs, Including Attorneys' Fees and Related Expenses) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 546 Order on Motion for Order (Gluckman, Todd) (Entered: 02/07/2017)
552 ORDER of USCA ORDERED that the motion for limited remand be granted in light of the district court's indicative order filed December 29, 2016 and that this case remain on the court's March 31, 2017 oral argument calendar, as the court anticipates that the district court will act promptly as to 534 Notice of Appeal to DC Circuit Court filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST. USCA Case Number 16−7076. (zrdj) (Entered: 02/09/2017)
553 Consent MOTION for Leave to File Excess Pages by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE (Copeland, Chad) (Entered: 02/10/2017)
554 Memorandum in opposition to re 537 MOTION for Attorney Fees filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit 1: Blackman−Jones Attorneys Fee Petition Summary, # 2 Exhibit 2: Mot. for Attorneys Fees in Petties, # 3 Exhibit 3: LaShawn Attorneys Fees Settlement Agreement, # 4 Exhibit 4: Evans Attorneys Fees Letters, # 5 Exhibit 5: Decl. of Mark Tuohey, # 6 Exhibit 6: Decl. of Robert Deso, # 7 Exhibit 7: Jones Revised Billing Statement, # 8 Exhibit 8: Adgerson Attorneys Fees Letter, # 9 Exhibit 9: Salazar Consent Decree, # 10 Exhibit 10: Salazar Fee Petition, # 11 Exhibit 11: Decl. of Dr. Laura Malowane, # 12 Exhibit 12: Decl. of Wallace

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Christensen, # 13 Exhibit 13: Georgetown Report on the State of the Legal Market, # 14 Exhibit 14: Trial Transcript (April 6, 2011))(Blecher, Matthew) (Entered: 02/11/2017)
555 ORDER granting 550 Motion to Modify. Signed by Judge Royce C. Lamberth on 2/15/2017. (lcrcl2) (Entered: 02/15/2017)
556 ORDER granting 553 Motion for Leave to File Excess Pages. Signed by Judge Royce C. Lamberth on 2/15/2017. (lcrcl2) (Entered: 02/15/2017)
557 Supplemental Record on Appeal transmitted to US Court of Appeals re 555 Order on Motion to Modify ;USCA Case Number 16−7076. (td) (Entered: 02/17/2017)
558 Consent MOTION for Extension of Time to File Response/Reply as to 537 MOTION for Attorney Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 02/17/2017)
559 ORDER granting 558 Motion for Extension of Time to File Response/Reply. Signed by Judge Royce C. Lamberth on 2/24/2017. (lcrcl2) (Entered: 02/24/2017)
560 ERRATA by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE 537 MOTION for Attorney Fees filed by ANGELIQUE MOORE, JB, TIMOTHY LANTRY, DL, TF, TAMEKA FORD, XY, DC, FD, DARWIN LAZO, BRYAN YOUNG, DORIS COCKRELL, FREDERICK DAVY, TL, TAMMIKA YOUNG, ELIZABETH UMANA−LAZO, LEAH BLAND, HW, OUL, RONALD WISOR, MONICA DAVY, ARLETTE MANKEMI, KERIANNE PIESTER. (Attachments: # 1 Exhibit Signed Declaration of Wallace A Christensen)(Copeland, Chad) (Entered: 02/28/2017)
561 NOTICE of Filing Report Describing Compliance with Programmatic Requirements by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit February 28, 2017 Programmatic Report)(Copeland, Chad) (Entered: 03/01/2017)
562 NOTICE Regarding Passage of Time for Objections by Subclass Members to Plaintiffs' Motion for an Award of Litigation Costs, Including Attorneys' Fees and Related Expenses by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 546 Order on Motion for Order (Attachments: # 1 Exhibit 1)(Gluckman, Todd) (Entered: 04/04/2017)
563 Consent MOTION for Leave to File Excess Pages by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 04/18/2017)
564 Civil Statement of Interest of the United States from United States. (Pfaffenroth, Peter) (Entered: 04/27/2017)
565 ORDER granting 563 Motion for Leave to File Excess Pages. ORDERED that Plaintiffs' Reply Brief in Support of Their Motion for an Award of Litigation costs, Including Attorneys' Fees and Related Expenses may exceed the page limit set by Local Rule 7(e) by no more than 15 pages. Signed by Judge Royce C. Lamberth on 4/27/17. (lsj) (Entered: 04/28/2017)
566 REPLY to opposition to motion re 537 MOTION for Attorney Fees filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit Revised Exhibit 4 − Revised

05/01/2017 05/15/2017

Summary of Fees and Expenses (Period 1 and Period 2), # 2 Exhibit 69 (Affidavit of Todd A. Gluckman), # 3 Exhibit 70 (Second Affidavit of Carolyn Smith Pravlik), # 4 Exhibit 71 (Second Affidavit of Jeffrey S. Gutman), # 5 Exhibit 72 (Second Affidavit of Margaret A. Kohn), # 6 Exhibit 73 (Second Affidavit of Bruce MacEwen), # 7 Exhibit 74 (Affidavit of Robert Mattern), # 8 Exhibit 75 (Affidavit of Bradford Johnson), # 9 Exhibit 76 (E−mail from T. Lewis (OSSE) to B. Colleye, et al., Re: Expert statement, Aug. 19, 2009, and preceding e−mail chain), # 10 Exhibit 77 (Excerpts of deposition transcripts in DL v. District of Columbia), # 11 Exhibit 78 (Second Declaration of Michael Kavanaugh), # 12 Exhibit 79 (Update of Valeo Rates Data from Plaintiffs Exhibit 53), # 13 Exhibit 80 (Update of Valeo Rates Data from Plaintiffs Exhibit 53 Excluding Bankruptcy Rates Data), # 14 Exhibit 81 (2011 ALM Legal Intelligence Survey of Law Firm Economics (2011 ALM SLFE) (excerpt)), # 15 Exhibit 82 (2011 ALM SLFE Questionnaire), # 16 Exhibit 83 (2011 ALM SLFE Instructions), # 17 Exhibit 84 (Rates Table from 2011 ALM Survey relied upon by Dr. Malowane), # 18 Exhibit 85 (Email from Chad Copeland with 2011 ALM Survey page relied upon by Dr. Malowane, March 7, 2017), # 19 Exhibit 86 (Email from Carolyn Smith Pravlik requesting materials from 2011 ALM Survey supporting statements by Dr. Malowane, March 7, 2017), # 20 Exhibit 87 (Email from Chad Copeland reporting no further documents relied upon by Dr. Malowane, March 10, 2017), # 21 Exhibit 88 (Email from Chad Copeland reporting that the page from the 2011 ALM SLFE is a custom report, March 24, 2017), # 22 Exhibit 89 (FOIA Request for 2011 ALM SLFE data underlying USAO Matrix 2015−2017), # 23 Exhibit 90 (DOJ Response to FOIA Request), # 24 Exhibit 91 (2011 Materials from the DOJ Response to the FOIA Request), # 25 Exhibit 92 (Emails with ALM Legal Intelligence regarding the scope of the geography for the Washington, D.C. metro area as used in the 2011 ALM SLFE custom report relied upon by Dr. Malowane), # 26 Exhibit 93 (Twenty−Fourth Consent Motion of Defendant Newsham For Approval of Payment of Interim Attorney Fees, filed in Chang v. United States, Civ. No. 02−02010 (JMF), ECF No. 890), # 27 Exhibit 94 (Nineteenth Consent Motion of Defendant Charles H. Ramsey for Approval of Payment of Interim Attorney Fees, filed in Chang v. United States, Civ. No. 02−02010 (JMF), ECF No. 908), # 28 Exhibit 95 (Email from Todd Gluckman requesting materials related to the Districts fee opposition, including materials relied upon by Dr. Malowane, February 21, 2017), # 29 Exhibit 96 (2014 ALM Legal Intelligence Survey of Law Firm Economics (2014 ALM SLFE) (excerpt)), # 30 Exhibit 97 (2014 ALM SLFE Questionnaire), # 31 Exhibit 98 (2014 ALM SLFE Instructions), # 32 Exhibit 99 (Declaration of Dr. Laura A. Malowane, Makray v. Perez, Civ. No. 12−00520 (BAH), ECF No. 88−1 (excerpt)), # 33 Exhibit 100 (Declaration of Dr. Laura A. Malowane, CREW v. U.S. DOJ, Civ. No. 12−1491 (JDB), ECF No. 46−1 (also submitted in EPIC v. Dept of Homeland Security, Civ. No. 12−0333 (GK), ECF No. 86−4) (excerpt)), # 34 Exhibit 101 (Salazar v. D.C., Civ. No. 93−452, Order, April 7, 2014, ECF No. 1973 (Order corresponding to Salazar v. D.C., 30 F. Supp. 3d 47 (D.D.C. 2014))), # 35 Exhibit 102 (Summary of Additional Reductions of Time and Expenses from Plaintiffs Reply in Support of Plaintiffs 2016 Fee Application), # 36 Exhibit 103 (Exhibits A and B to the Expert Report of Carl Dunst, May 11, 2009), # 37 Exhibit 104 (U.S. Census Bureau, District of Columbia, 2000−2010 Population Estimates), # 38 Exhibit 105 (DCPS Guidelines for the Payment of Attorneys Fees in IDEA Cases, Nov. 1, 2011), # 39 Exhibit 106 (Affidavit of Dr. Michael Kavanaugh, Salazar v. District of Columbia, Civ. No. 93−452 (GK), ECF No. 1587−3), # 40 Exhibit 107 (U.S. Department of Education Annual Reports to Congress on the Implementation of the IDEA (2006, 2007, 2008, 2009) (excerpts)), # 41 Exhibit 108 (Email from Chad Copeland related to data relied upon by Dr. Malowane, April 10, 2017), # 42 Text of Proposed Order)(Gluckman, Todd) (Entered: 05/01/2017)
567 MOTION for a Status Conference by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 05/01/2017)
568 Memorandum in opposition to re 567 MOTION for a Status Conference filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 05/15/2017)

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569 REPLY to opposition to motion re 567 MOTION for a Status Conference filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Gluckman, Todd) (Entered: 05/18/2017)
570 ORDER denying 567 Motion for Status Conference. SEE ORDER FOR FULL DETAILS. Signed by Judge Royce C. Lamberth on 5/22/17. (lsj) (Entered: 05/23/2017)
571 RESPONSE re 564 to the Statement of Interest of the United States filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 109 (Joint Appendix Volume I (Covington), filed in the Court of Appeals in Covington v. D.C., Appeal Nos. 94−7014, 94−7022, consolidated with Appeal Nos. 94−7015 and 94−7107), # 2 Exhibit 110 (Affidavit of Eileen T. McDonough, July 5, 1987, Hobson v. Brennan, Civ. No. 76−1326 (LFO)), # 3 Exhibit 111 (Affidavit of Daniel A. Rezneck, July 29, 1987, Hobson v. Brennan, Civ. No. 76−1326 (LFO)), # 4 Exhibit 112 (Fourth Supplemental Declaration of Joseph A. Yablonski and Plaintiffs Market−Rate Exhibits, Brown v. Pro Football, Inc., Case No. 90−1071 (RCL)), # 5 Exhibit 113 (Affidavit of Bradley G. McDonald, April 26, 1988, Palmer v. Shultz, Civ. No. 76−1439 (JLS)), # 6 Exhibit 114 (Affidavit of Arthur F. Mathews, April 17, 1985, Jenkins v. Massinga, Civ. No. M−83−4134), # 7 Exhibit 115 (Affidavit of Dr. Michael Kavanaugh, April 25, 2012, DL v. District of Columbia, ECF No. 325−32), # 8 Exhibit 116 (Docket from DL v. D.C. (excerpts)), # 9 Exhibit 117 (Legends in the Law: Daniel A. Rezneck), # 10 Exhibit 118 (Daniel Rezneck Bar Information), # 11 Exhibit 119 (Roger E. Warin Biography), # 12 Exhibit 120 (USAO Laffey Matrix 1981−1992), # 13 Exhibit 121 (U.S. Department of Labor Program Highlights, The 1998 CPI Revision: Changes in Available Data Series), # 14 Exhibit 122 (U.S. Census Bureau, Metropolitan Areas and Components, 1990 (excerpt)), # 15 Exhibit 123 (U.S. Census Bureau, Metropolitan Areas and Components, 1999 (excerpt)), # 16 Exhibit 124 (Third Affidavit of Carolyn Smith Pravlik), # 17 Exhibit 125 (Order Granting in Part Plaintiffs Motion for an Award of Attorneys Fees and Costs, Clemente v. FBI, Case No. 08−1252, March 24, 2017), # 18 Exhibit 126 (James Bierbower; Lawyer in High−Profile Cases, The Washington Post, February 10, 2005), # 19 Exhibit 127 (Zuckerman Spaeder LLP Practice Areas), # 20 Exhibit 128 (Joint Appendix Volume III (Galloway), filed in the Court of Appeals in Covington v. D.C., Appeal Nos. 94−7014, 94−7022, consolidated with Appeal Nos. 94−7015 and 94−7107), # 21 Certificate of Service)(Gluckman, Todd) Modified to add link on 6/6/2017 (znmw). (Entered: 06/05/2017)
572 MOTION for Extension of Time to File Statement of Interest Reply from United States. (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) Modified event title on 6/7/2017 (znmw). (Entered: 06/06/2017)
573 RESPONSE re 572 MOTION for Extension of Time to File filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Gluckman, Todd) (Entered: 06/07/2017)
574 REPLY re 571 Response to Document,,,,,,,,,, 564 Civil Statement of Interest of the Unites States filed by UNITED STATES OF AMERICA. (Pfaffenroth, Peter) (Entered: 06/23/2017)
575 ORDER granting nunc pro tunc 572 Motion for Extension of Time to File. Signed by Judge Royce C. Lamberth on 6/25/17. (lsj) (Entered: 06/27/2017)
576 ORDER TO SHOW CAUSE. See full Order for details. Signed by Judge Royce C. Lamberth on 7/27/2017. (lcrcl3) (Entered: 07/27/2017)

08/03/2017 08/03/2017 08/03/2017 08/25/2017 08/25/2017 08/28/2017 08/31/2017
08/31/2017 09/01/2017 09/13/2017
09/29/2017

577 RESPONSE TO ORDER OF THE COURT re 576 Order to Show Cause filed by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 129 (Second Affidavit of Todd A. Gluckman))(Gluckman, Todd) (Entered: 08/03/2017)
578 RESPONSE TO ORDER OF THE COURT re 576 Order to Show Cause filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 08/03/2017)
586 MANDATE of USCA as to 534 Notice of Appeal to DC Circuit Court filed by MICHELLE RHEE, DISTRICT OF COLUMBIA, CLIFFORD B. JANEY, DEBORAH GIST. USCA Case Number 16−7076. (Attachments: # 1 judgment filed June 23, 2017)(zrdj) (Entered: 09/29/2017)
579 ORDER granting in part and denying in part 537 Motion for Attorney Fees. Plaintiffs shall submit a revised calculation within 10 days. See Order for details. Signed by Judge Royce C. Lamberth on 8/25/2017. (lcrcl3) (Entered: 08/25/2017)
580 MEMORANDUM OPINION re 537 Motion for Attorney's Fees. Signed by Judge Royce C. Lamberth on 8/25/2017. (lcrcl3) (Entered: 08/25/2017)
581 NOTICE of Change of Address by Todd A. Gluckman (Gluckman, Todd) (Entered: 08/28/2017)
582 Consent MOTION for Scheduling Order (to Revise the Schedule Related to Fee and Expense Calculations) by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 08/31/2017)
583 NOTICE by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit August 31, 2017 Numerical and Programmatic Report, # 2 Appendix OSSE Dear Colleague Letter)(Copeland, Chad) (Entered: 08/31/2017)
584 ORDER granting 582 Motion for Scheduling Order Related to Fee and Expense Calculation. Further ORDERED that Plaintiffs shall submit a revised calculation by 9/13/2017. Defendants shall respond by 9/29/2017. Plaintiffs shall reply in support by 10/6/2017. Signed by Judge Royce C. Lamberth on 9/1/17. (lsj) (Entered: 09/01/2017)
585 MEMORANDUM re 580 Memorandum & Opinion, 579 Order on Motion for Attorney Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 130 (USAO Attorneys Fees Matrix2015−2018), # 2 Exhibit 131 (Plaintiffs Timekeeper Chart), # 3 Exhibit 132 (Summary of Fees and Expenses − Period 1 and Period 2, Revised Pursuant to the Courts August 25, 2017 Decision), # 4 Exhibit 133 (TPM Summary of Time by Category (Period 1)), # 5 Exhibit 134 (TPM Time Records by Category (Period 1)), # 6 Exhibit 135 (TPM No Charge Time Records (Period 1)), # 7 Exhibit 136 (TPM Reductions of Time and Expenses from Plaintiffs Reply in Support of Plaintiffs 2012 Fee Application (Period 1)), # 8 Exhibit 137 (TPM Summary of Additional Reductions of Time and Expenses with Plaintiffs 2016 Fee Application (Period 1)), # 9 Exhibit 138 (TPM Summary of Time by Billing Client and Category (Period 2)), # 10 Exhibit 139 (TPM Time Records by Billing Client and Category (Period 2)), # 11 Exhibit 140 (TPM No Charge Time Records (Period 2)), # 12 Exhibit 141 (Third Affidavit of Margaret Kohn), # 13 Exhibit 142 (Plaintiffs Summary of Additional Reductions of Time and Expenses with Reply Brief in Support of Plaintiffs 2016 Application), # 14 Text of Proposed Order)(Gluckman, Todd) (Entered: 09/13/2017)
587 RESPONSE re 585 Memorandum,,,,,, filed by DISTRICT OF COLUMBIA, DEBORAH GIST, CLIFFORD B. JANEY, MICHELLE RHEE. (Copeland, Chad) (Entered: 09/29/2017)

10/05/2017
10/31/2017 12/15/2017 01/10/2018
01/11/2018 01/17/2018
02/28/2018 08/31/2018 02/28/2019 06/11/2019 06/20/2019 07/08/2019

588 REPLY re 585 Memorandum,,,,,, filed by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. (Attachments: # 1 Exhibit 143 (Third Affidavit of Todd A. Gluckman), # 2 Exhibit 144 (Emails between Chad Copeland and Todd Gluckman, December 2016), # 3 Exhibit 145 (Emails between Chad Copeland and Todd Gluckman, September 2017), # 4 Exhibit 146 (Email from Todd Gluckman to Chad Copeland, September 13, 2017))(Gluckman, Todd) (Entered: 10/05/2017)
589 SUPPLEMENTAL MEMORANDUM to re 583 Notice (Other) filed by DISTRICT OF COLUMBIA. (Blecher, Matthew) (Entered: 10/31/2017)
590 ORDER re 537 MOTION for Attorney Fees . It is hereby ORDERED that the Defendants pay Plaintiffs a total of $6,961,480.45 Signed by Judge Royce C. Lamberth on 12/15/17. (lsj) (Entered: 12/15/2017)
591 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 590 Order, 580 Memorandum & Opinion, 579 Order on Motion for Attorney Fees by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG. Filing fee $ 505, receipt number 0090−5280232. Fee Status: Fee Paid. Parties have been notified. (Gluckman, Todd) (Entered: 01/10/2018)
592 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 591 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 01/11/2018)
USCA Case Number 18−7004 for 591 Notice of Appeal to DC Circuit Court, filed by ANGELIQUE MOORE, JB, TIMOTHY LANTRY, DL, TF, TAMEKA FORD, XY, DC, FD, DARWIN LAZO, BRYAN YOUNG, DORIS COCKRELL, FREDERICK DAVY, TL, TAMMIKA YOUNG, ELIZABETH UMANA−LAZO, LEAH BLAND, HW, OUL, RONALD WISOR, MONICA DAVY, ARLETTE MANKEMI, KERIANNE PIESTER. (zrdj) (Entered: 01/17/2018)
593 NOTICE of Filing Report Describing Compliance with Programmatic Requirements by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit Report on Programmatic Compliance)(Copeland, Chad) (Entered: 02/28/2018)
594 NOTICE OF FILING AUGUST 31, 2018 ANNUAL REPORT by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit)(Copeland, Chad) (Entered: 08/31/2018)
595 NOTICE by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE, UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Report on Programmatic Compliance)(Copeland, Chad) (Entered: 02/28/2019)
596 NOTICE OF SUBSTITUTION OF COUNSEL by Robert Joseph Rich on behalf of All Defendants Substituting for attorney Chad Copeland (Rich, Robert) (Entered: 06/11/2019)
597 NOTICE Regarding the Forthcoming Remand from the Court of Appeals and Related Issues by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Gluckman, Todd) (Entered: 06/20/2019)
598 MANDATE of USCA as to 591 Notice of Appeal to DC Circuit Court,, filed by ANGELIQUE MOORE, JB, TIMOTHY LANTRY, DL, TF, TAMEKA FORD, XY, DC, FD, DARWIN LAZO, BRYAN YOUNG, DORIS COCKRELL, FREDERICK DAVY, TL, TAMMIKA YOUNG, ELIZABETH UMANA−LAZO, LEAH BLAND, HW, OUL, RONALD WISOR, MONICA DAVY, ARLETTE MANKEMI, KERIANNE PIESTER ; USCA Case Number 18−7004. (Attachments: # 1 USCA Judgment)(zrdj) (Entered: 07/16/2019)

07/24/2019
07/25/2019 08/22/2019
08/26/2019
08/30/2019 09/09/2019 09/10/2019 10/08/2019
10/08/2019 10/11/2019 10/24/2019 10/25/2019 11/20/2019

599 Consent MOTION for Extension of Time to Move for Fees on Fees (Plaintiffs' Consent Motion to Revise the Schedule for Briefing Fees on Fees) by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 07/24/2019)
600 ORDER granting 599 Motion for Extension of Time. Signed by Judge Royce C. Lamberth on 07/24/2019. (lcrcl3) (Entered: 07/25/2019)
601 NOTICE Regarding Developments in the Monitoring of Compliance with the Court's Injunction by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1 (Clarence J. Sundram CV))(Gluckman, Todd) (Entered: 08/22/2019)
602 MOTION for Attorney Fees (Plaintiffs' Motion for the Balance of Fees Due on Their 2016 Fee Application (ECF 537)) by LEAH BLAND, DORIS COCKRELL, FREDERICK DAVY, MONICA DAVY, DC, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, DARWIN LAZO, ARLETTE MANKEMI, ANGELIQUE MOORE, OUL, KERIANNE PIESTER, TF, TL, ELIZABETH UMANA−LAZO, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1 (Affidavit of Todd A. Gluckman), # 2 Exhibit 2 (U.S. Department of Commerce, Bureau of Labor Statistics, Legal Services Component of the Consumer Price Index), # 3 Exhibit 3 (LSI Laffey Matrix), # 4 Exhibit 4 (Summary of Fees and Expenses Related to Plaintiffs 2016 Fee Application), # 5 Exhibit 5 (Calculation of Additional Fees Due), # 6 Text of Proposed Order)(Gluckman, Todd) (Entered: 08/26/2019)
603 NOTICE by DISTRICT OF COLUMBIA (Attachments: # 1 Report on Numerical and Programmatic Requirements)(Blecher, Matthew) (Entered: 08/30/2019)
604 Consent MOTION for Extension of Time to Respond to Motion for the Balance of Fees Due by DISTRICT OF COLUMBIA (Blecher, Matthew) (Entered: 09/09/2019)
605 ORDER granting 604 Motion for Extension of Time to Respond. Defendants shall respond to plaintiffs' Motion for the Balance of Fees Due on Their 2016 Fee Application no later than 10/09/2019. Signed by Judge Royce C. Lamberth on 09/10/2019. (lcrcl3) (Entered: 09/10/2019)
606 Consent MOTION to Resolve the Balance of Fees Due on Plaintiffs' 2016 Fee Application re 602 MOTION for Attorney Fees (Plaintiffs' Motion for the Balance of Fees Due on Their 2016 Fee Application (ECF 537)) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 10/08/2019)
607 NOTICE of Settlement Regarding Balance of Fees Due on Plaintiffs' 2016 Fee Application by All Defendants (Rich, Robert) (Entered: 10/08/2019)
608 ORDER granting 606 Plaintiffs' Consent Motion to Resolve the Balance of Fees Due on Their 2016 Fee Application. Signed by Judge Royce C. Lamberth on 10/11/2019. (lcrcl3) (Entered: 10/11/2019)
609 NOTICE OF SUBSTITUTION OF COUNSEL by Andrew J. Saindon on behalf of All Defendants Substituting for attorney Matthew R. Blecher (Saindon, Andrew) (Entered: 10/24/2019)
610 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE. Attorney Robert Joseph Rich terminated. (Rich, Robert) (Entered: 10/25/2019)
611 Consent MOTION for Extension of Time to File a Request for Fees Arising from Plaintiffs' 2016 Fee Application by LEAH BLAND, FREDERICK DAVY, MONICA

11/21/2019 11/22/2019 12/13/2019 12/13/2019 12/20/2019
12/20/2019
12/26/2019 12/27/2019
01/22/2020

DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 11/20/2019)
612 ORDER GRANTING 611 Consent Motion for Extension of Time to Move for Fees. Plaintiffs shall move for fees no later than 12/20/2019. Signed by Judge Royce C. Lamberth on 11/20/2019. (lcrcl3) (Entered: 11/21/2019)
Set/Reset Deadlines: Motion for Fees due by 12/20/2019. (lsj) (Entered: 11/22/2019)
613 Joint MOTION for Extension of Time to For Plaintiffs to Move for Fees and Expenses Arising from Their 2016 Fee Application by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 12/13/2019)
614 ORDER granting 613 Joint Motion for Extension of Time for Plaintiffs to Move for Fees and Expenses Arising from their 2016 Fee Application. Plaintiffs shall file their motion no later than 01/24/2020. Signed by Judge Royce C. Lamberth on 12/13/2019. (lcrcl3) (Entered: 12/13/2019)
615 Consent MOTION for Attorney Fees for Work on the District's Second Merits Appeal and Monitoring of Compliance with the Injunction through June 30, 2018 by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1 (Summary of Fees and Expenses), # 2 Exhibit 2 (Affidavit of Todd A. Gluckman), # 3 Exhibit 3 (Terris, Pravlik & Millian, LLP Timekeeper Chart), # 4 Exhibit 4 (Resumes of TPM Attorneys), # 5 Exhibit 5 (TPM Summary of Time by Category), # 6 Exhibit 6 (TPM Time Records by Category), # 7 Exhibit 7 (TPM Summary of Expenses), # 8 Exhibit 8 (Affidavit of Margaret A. Kohn), # 9 Exhibit 9 (Affidavit of Cyrus Mehri), # 10 Exhibit 10 (Laffey Matrix Updated Using Legal Services Index (LSI Laffey Matrix)), # 11 Exhibit 11 (U.S. Department of Commerce, Bureau of Labor Statistics, Legal Services Component of the Consumer Price Index), # 12 Text of Proposed Order)(Gluckman, Todd) (Entered: 12/20/2019)
616 Consent MOTION For an Order Regarding Notice to Subclass Members Related to Plaintiffs' December 20, 2019 Motion for an Award of Attorneys' Fees and Expenses re 615 Consent MOTION for Attorney Fees for Work on the District's Second Merits Appeal and Monitoring of Compliance with the Injunction through June 30, 2018 by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order Proposed Order and Notice to Plaintiff Subclasses of Plaintiffs' December 20, 2019 Motion for an Award of Attorneys' Fees and Expenses))(Gluckman, Todd) (Entered: 12/20/2019)
617 ORDER granting 616 Motion Notice to Subclass Members Related to Plaintiffs' December 20, 2019 Motion for an Award of Attorneys' Fees and Expenses (related notice placed on Court's website). Signed by Judge Royce C. Lamberth on 12/23/19. (lsj) (Entered: 12/26/2019)
618 NOTICE (PRAECIPE REGARDING NOTICE TO SUBCLASS MEMBERS RELATED TO PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 615 Consent MOTION for Attorney Fees for Work on the District's Second Merits Appeal and Monitoring of Compliance with the Injunction through June 30, 2018, 617 Order on Motion for Miscellaneous Relief, (Gluckman, Todd) (Entered: 12/27/2019)
619 WITHDRAWN PURSUANT TO 620 NOTICE OF WITHDRAWAL.....Consent MOTION for Extension of Time to Move for Fees Arising from Plaintiffs' 2016 Fee

01/23/2020 01/23/2020 01/24/2020 01/24/2020 02/14/2020 02/18/2020
02/19/2020 02/27/2020
02/27/2020

Application by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) Modified on 1/24/2020 (jf). (Entered: 01/22/2020)
620 NOTICE OF WITHDRAWAL OF MOTION by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 619 Consent MOTION for Extension of Time to Move for Fees Arising from Plaintiffs' 2016 Fee Application (Gluckman, Todd) (Entered: 01/23/2020)
621 Joint MOTION for Extension of Time to Move for Fees and Expenses Arising from Plaintiffs' 2016 Fee Application by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 01/23/2020)
622 ORDER granting 621 Joint Motion for Extension of Time. Plaintiffs must move for fees and expenses arising from the 2016 fee application no later than 02/14/2020. Signed by Judge Royce C. Lamberth on 01/23/2020. (lcrcl3) (Entered: 01/24/2020)
Set/Reset Deadlines: Motions due by 2/14/2020. (lsj) (Entered: 01/24/2020)
623 Joint MOTION for Extension of Time to Move the Court for Fees and Expenses Arising from Plaintiffs' 2016 Fee Application by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 02/14/2020)
624 NOTICE (Praecipe Regarding the Expiration of Time for Objections by Class Members to Plaintiffs' December 20, 2019, Motion for an Award of Attorneys' Fees and Expenses) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 615 Consent MOTION for Attorney Fees for Work on the District's Second Merits Appeal and Monitoring of Compliance with the Injunction through June 30, 2018 (Gluckman, Todd) (Entered: 02/18/2020)
625 NOTICE of Appearance by Honey C. Morton on behalf of All Defendants (Morton, Honey) (Entered: 02/19/2020)
626 Consent MOTION for Attorney Fees and Expenses for Work Related to Plaintiffs' 2016 Fee Application and the Related Appeal by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Exhibit 1 (Summary of Fees and Expenses), # 2 Exhibit 2 (Affidavit of Todd A. Gluckman), # 3 Exhibit 3 (Terris, Pravlik & Millian, LLP Timekeeper Chart), # 4 Exhibit 4 (Resumes of TPM Attorneys), # 5 Exhibit 5 (TPM Summary of Time by Category), # 6 Exhibit 6 (TPM Time Records by Category), # 7 Exhibit 7 (TPM Summary of Expenses), # 8 Exhibit 8 (Affidavit of Margaret A. Kohn), # 9 Exhibit 9 (Affidavit of Cyrus Mehri), # 10 Exhibit 10 (LSI Laffey Matrix), # 11 Exhibit 11 (Legal Services Component of the Consumer Price Index), # 12 Text of Proposed Order)(Gluckman, Todd) (Entered: 02/27/2020)
627 Consent MOTION For an Order Regarding Notice to Class Members re 626 Consent MOTION for Attorney Fees and Expenses for Work Related to Plaintiffs' 2016 Fee Application and the Related Appeal by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG (Attachments: # 1 Text of Proposed Order (Proposed Order and Notice to Plaintiff Class of Plaintiffs' February 27, 2020 Consent Motion for an Award of Attorneys' Fees and

03/02/2020 03/04/2020 03/04/2020
03/04/2020 03/04/2020 03/10/2020 03/13/2020
05/04/2020
05/09/2020

Expenses))(Gluckman, Todd) (Entered: 02/27/2020)
628 NOTICE by DISTRICT OF COLUMBIA, DEBORAH GIST, MICHELLE RHEE (Attachments: # 1 Exhibit Report on Programmatic Compliance)(Morton, Honey) (Entered: 03/02/2020)
629 ORDER regarding 602 Motion for Attorney Fees: This motion was granted in the Court's approval of the Consent Order 608 . Signed by Judge Royce C. Lamberth on 03/04/2020. (lcrcl3) (Entered: 03/04/2020)
630 ORDER granting 615 Consent Motion for Award of Litigation Costs. Plaintiffs' counsel are awarded $1,084,000 in fees and expenses. Since the District of Columbia has already paid plaintiffs' counsel that amount, and TPM has held that amount in its IOLTA account, TPM may now transfer that amount from its IOLTA account and pay itself, Margaret Kohn, and Mehri & Skalet. Signed by Judge Royce C. Lamberth on 03/04/2020. (lcrcl3) (Entered: 03/04/2020)
631 ORDER granting 623 Motion for Extension of Time nunc pro tunc. Signed by Judge Royce C. Lamberth on 03/04/2020. (lcrcl3) (Entered: 03/04/2020)
632 ORDER granting 627 Consent Motion for an Order Regarding Notice to Class Members. Signed by Judge Royce C. Lamberth on 03/04/2020. (lcrcl3) (Entered: 03/04/2020)
NOTICE: Notice to Plaintiff Class of Plaintiffs' February 27, 2020 Consent Motion for an Award of Attorneys' Fees and Expenses has been made available on the Court's website (lsj) (Entered: 03/10/2020)
633 NOTICE (Praecipe Regarding Notice to Class Members Related to Plaintiffs' Motion for an Award of Attorneys' Fees and Expenses) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 626 Consent MOTION for Attorney Fees and Expenses for Work Related to Plaintiffs' 2016 Fee Application and the Related Appeal, 632 Order on Motion for Miscellaneous Relief (Gluckman, Todd) (Entered: 03/13/2020)
634 NOTICE (Praecipe Regarding the Expiration of Time for Objections by Class Members to Plaintiffs' February 27, 2020, Consent Motion for an Award of Attorneys' Fees and Expenses) by LEAH BLAND, FREDERICK DAVY, MONICA DAVY, DL, FD, TAMEKA FORD, HW, JB, TIMOTHY LANTRY, ARLETTE MANKEMI, ANGELIQUE MOORE, KERIANNE PIESTER, TF, TL, RONALD WISOR, XY, BRYAN YOUNG, TAMMIKA YOUNG re 626 Consent MOTION for Attorney Fees and Expenses for Work Related to Plaintiffs' 2016 Fee Application and the Related Appeal (Gluckman, Todd) (Entered: 05/04/2020)
635 ORDER granting 626 Consent Motion for Attorney Fees. Plaintiffs' counsel are awarded $2,067,682 in fees and expenses. Unless the District has already remitted such payment to Terris, Pravlik & Millian, LLP, the payment shall be made within 30 days of the date of entry of this Order. If payment is made before the entry of this Order or within 30 days following its entry, the District shall not be liable for post−judgment interest in accordance with 28 U.S.C. 1961. Terris, Pravlik & Millian, LLP is responsible for disbursing the appropriate funds to co−counsel. Signed by Judge Royce C. Lamberth on 05/09/2020. (lcrcl3) (Entered: 05/09/2020)