UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) JACQUALYN THORPE, et al ., ) ) Plaintiffs, ) ) v. ) Civil Action No. 10-2250 (ESH) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER Before the Court is defendant District of Columbia’s renewed motion for a stay of discovery pending the Court of Appeals’ dispositi on of its petition pursuan t to Federal Rule of Civil Procedure 23(f) for permission to file an in terlocutory appeal challenging this Court’s order granting class certification. 1 (Def.’s Renewed Mot. for Stay, June 26, 2014 [ECF No. 138] (“Renewed Mot. for Stay”).) Upon considerat ion of the motion, plaintiffs’ opposition thereto, defendant’s reply, and for the reasons stated herein, the motion will be denied. BACKGROUND In this Olmstead action, plaintiffs are ch allenging the District of Columbia’s provision of Medicaid-funded long-term care services to persons with physical disabilities as causing unnecessary segregation in nursing fa cilities in violation of Ameri cans with Disabilities Act and

1 Rule 23(f) provides that “A court of appeals may permit an appeal from an order granting or denying class-action certifi cation under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after th e order is entered.” Fed. R. Civ. P. 23(f).2 the Rehabilitation Act. 2 On March 29, 2014, this Court gr anted plaintiffs’ motion for class certification and certified, pursuant to Fed. R. Civ. P. 23(a) and 23(b )(2), a class that consists of: All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long- term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-cove red home and community-based longterm care services that would enable them to live in the community; and (3) would prefer to live in the commun ity instead of a nursing facility but need the District of Columbia to prov ide transition assistan ce to facilitate their access to long-term care services in the community. (Order, Mar. 29, 2014 [ECF No. 129].) Defendant f iled its Rule 23(f) petit ion with the Court of Appeals on April 15, 2014. See Petition for Permission to Appeal Under Federal Rule of Civil Procedure 23(f), In re District of Columbia , No. 14-8001 (D.C. Cir. Apr. 15, 2014) (“Rule 23(f) Petition”). A few days later, de fendant filed its first motion to st ay proceedings in the district court pending the disposition of that petition. (Def.’s Mot. to Stay Discovery, Apr. 17, 2014 [ECF No. 134].) After hearing argument from the parties, the Court granted defendant’s motion in part, staying expert discovery, but allowing fact discovery to proc eed. (Order, Apr. 24, 2014 [ECF No. 135].) The Court gave the part ies until June 30, 2014, to propound additional document requests and interrogatories (limited to 10 of each) and directed the parties to file a joint status report by July 10, 2014, regarding a proposed discovery schedule and a “specific listing of any remaining discovery.” ( Id . at 1-2.) Under the current schedule, all fact discovery

2 These actions are named for th e 1999 Supreme Court decision in Olmstead v. L.C ., 527 U.S. 581 (1999), which recognized for the first time that unjustified segreg ation was a form of discrimination prohibited by the ADA and the Rehabilitation Act.3 is to be completed by December 31, 2014. ( Id .) Defendant did not seek a more extensive stay from the Court of Appeals pursuant to Federal Rule of Appellate Procedure 8(a)(1). On June 24, 2014, the Court of Appeals orde red on its own motion that the Rule 23(f) petition “be referred to a me rits panel.” Order at 1, In re District of Columbia , No. 14-8001 (D.C. Cir. June 23, 2014). That order advised the parties that “[i]n addition to addressing whether the petition should be gr anted,” they should “address in th eir briefs whether the district court properly granted plainti ffs’ renewed motion for class cert ification under Fed. R. Civ. P.
23.” Id . According to the current schedule, briefi ng for the merits panel will be completed by September 29, 2014. 3 See Order, In re District of Columbia , No. 14-8001 (D.C. Cir. July 3, 2014). No date for oral argument has been set. Relying on the Court of Appeals’ decision to refer the Rule 23(f) petition to a merits panel, defendant has renewed its motion for a st ay of discovery pending disposition of that petition. (Renewed Mot. for Stay at 1.) That motion is now ripe for review. ANALYSIS
I. STAY OF DISCOVERY PE NDING DISPOSITION OF A PENDING RULE 23(f) PETITION Rule 23(f) expressly provides that the decisi on by a court of appeals to permit an appeal from a class certification order “doe s not stay proceedings in the di strict court unless the district judge or the court of appeals so orders.” Fed. R. Civ. P. 23(f) . When a district court is confronted with a motion to stay pending a Rule 23(f) appeal, the decisi on whether to grant a stay is

3 Defendant’s brief is due on August 15, 2014; pl aintiffs’ brief is due on September 15, 2014; defendant’s reply brief is due on September 29, 2014. See Order, In re District of Columbia , No. 14-8001 (D.C. Cir. July 3, 2014).4 a discretionary matter to be informed by a flexible application of the wellestablished, four-factor balancing test employed to consider preliminary injunctive relief and other stays pending app eal in this Circuit – (1) whether there is a substantial likelihood that the m ovant will succeed on the merits of the claims/appeal; (2) whether the movant will suffer irreparable injury if an injunction/stay does not issue; (3) wh ether others will suffer harm if an injunction/stay is granted; and (4) whethe r the public interest will be furthered by an injunction/stay. In re Lorazepam v. Clorazepate Antitrust Litig. , 208 F.R.D. 1, 3 (D.D.C. 2002); see In re Rail Freight Fuel Surchage Antitrust Litig. , 286 F.R.D. 88, 91 (D.D.C. 2012); DL v. D.C ., No. 05-cv1437, 2014 WL 29260 (D.D.C. Jan. 3, 2014); see also Order, In re Veneman , No. 02-5021 (D.C. Cir. Feb. 8, 2002) (applying “stringe nt standard for a stay pending appeal” to motion for a stay pending disposition of a Rule 23(f) pe tition). In weighing th ese four factors, a stay is appropriate if “the probability of error in the class certification decisi on is high enough that the costs of pressing ahead in the district co urt exceed the costs of waiting.” In re Rail Freight , 286 F.R.D. at 93. Balancing these four factors leads to the conclusion that no stay is warranted. A. First Factor: Substantial Likelihood of Success on the Merits of the Appeal Where, as here, the Court of Appeals has not yet ruled on the Rule 23(f) petition, the “substantial likelihood of success on appeal” inquir y has “two layers”: (1) whether the moving party will obtain permission to a ppeal; and (2) if permission to appeal is granted, whether the moving party will prevail on the merits of its appeal. In re Lorazepam , 208 F.R.D. at 4. Thus, the first question for this Court is whether there is a substa ntial likelihood that the Court of Appeals will grant defendant permission to appeal. In a recent decision, the Court of Appeals confirmed that it ha s recognized “three reasons for which interlocutory review of a class certif ication order is appropr iate under Rule 23(f)”: “(1) when a ‘questionable’ class cer tification decision cr eates a ‘death-knell situation’ for either party; (2) when the certification d ecision presents ‘an5 unsettled and fundamental issue of law relating to class actions . . . that is likely to evade end-of-the-case review’; and (3 ) when the certification decision is manifestly erroneous.” In re Johnson , No. 13-8002, 2014 WL 3765707, at *3 (D.C. Cir. Aug. 1, 2014) (quoting In re Veneman, 309 F.3d 789, 794 (2002) (quoting In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C. Cir. 2002)). “[O]ther circum stances may also justify review per Rule 23(f),” but “such review shoul d be ‘granted rarely.’” In re Johnson , 2014 WL 3765707, at *3 (quoting In re Lorazepam , 289 F.3d at 105). Defendant’s Rule 23(f) petition rests on a claim that the certification decision was manifestly erroneous. As the Court of Appeals has observed, “[t]his is a difficult standard to meet” and there is a “high bar for doing so.” In re Johnson , 2014 WL 3765707, at *4 (citing Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir. 2005)). As explained in In re Johnson , as long as a district court has “applied the correct standards and the cases relied upon by the [petitioning party] do not squarely foreclos e the class certification,” there is no manifest

error. Id . Indeed, the court in In re Johnson observed that the D.C. Circuit has “never before granted Rule 23(f) review on the basis of a manifest error.” Id

. Applying this standard to the instant case , the Court does not believe that there is a substantial likelihood that the District’s Rule 23(f) petition will be gran ted. Defendant asserts that the class certification orde r was “manifestly erroneous” becau se this Court misapplied the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes , 131 S. Ct. 2541 (2011), and the D.C Circuit’s decision in DL v. DC , 713 F.3d 120 (D.C. Cir. 2013). Specifically, defendant claims that (1) the District’s alleged “failure to implement an effective system of transition assistance” does not satisfy the “commonality” re quirement of Rule 23(a)(2), which requires plaintiffs to identify a uniform policy or prac tice that affects all class members; and (2) for6 essentially the same reason, there is no indivisible injunction that could provide relief to all of the class members at once, as required by Rule 23(b)(2). Defendant acknowledges, however, that these alleged errors concern the Court’s appli cation of existing law to the unique facts of this case, which is not the type of error that the Court of A ppeals considers “manifest.” See In re Johnson , 2014 WL at 3765707, at *4; see also Chamberlan , 402 F.3d at 952 (“It is difficult to show that a class certification or der is manifestly erroneous unle ss the district court applies an incorrect Rule 23 standard or i gnores a directly controlling case . Class certification decisions rarely will involve legal errors, however, simply because class actions typically involve complex facts that are unlikely to be on all fours with ex isting precedent.”). Inde ed, the Court of Appeals has already denied one Rule 23(f) petition challenging a district c ourt’s application of its opinion
in DL v. DC , finding that it was not manifestly erroneous. See In re District of Columbia , No. 13-8009 (D.C. Cir. Jan. 30, 2014). Defendant strongly urges the Court to take the Court of Appeals’ decision to refer the Rule 23(f) petition to a merits panel as a strong signal that the petition will be granted. However, the Court is aware of seven Rule 23(f) petitions that have been referred to merits panels since 2001, only one of which was granted and that was not based on a finding of manifest error. Compare In re Lorazepam., 289 F.3d at 100 (Rule 23(f) petiti on referred to merits panel then denied), In re Veneman, 309 F.3d 789 (D.C. Cir. 2002) (same), In re James, 444 F.3d 643 (D.C. Cir. 2006) (same), In re D.C. Water and Sewer Auth., 561 F.3d 494 (D.C. Cir. 2009) (same), In re U–Haul, Int’l Inc., No. 08–7122, 2009 WL 902414 (D.C. Cir. April 6, 2009) (same), and In re Johnson , 2014 WL 3765707, at *1, with In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 247 (D.C. Cir. 2013) (granting review ba sed on “special circumstances,” including a “confluence of multiple rationales” and a subsequent decision of the Supreme Court). As other7 district judges have noted, “[i]t is a fool’s errand to try to pred ict what the court of appeals is likely to do before it acts or, absent explanation, to specula te on why it has made a certain procedural decision.” In re Rail Freight , 286 F.R.D. at 93. Although the Court has made no secr et of its view that the cla ss certification issues in this case are complicated and, to some ex tent, novel in this Circuit, itcertainly does not believe that the Court of Appeals could find its rulings to be “manifestly err oneous,” at least not as that standard has been defined. Accordingly, the Court finds that defe ndant has not shown a substantial likelihood of success on its Rule 23(f) petition, which necessarily means that it has not shown a substantial like lihood of success on appeal.
B. Three Remaining Factors The three remaining factors for the Court to weigh are (1) whether defendant will suffer irreparable injury if a stay does not issue; (2) whether others will suffer harm if a stay is granted; and (3) whether the public interest will be furthere d by a stay. Of these factors, only the first arguably weighs in defendant’s favor. On the question of irreparable injury to defendant if a stay is denied, defendant argues that it will suffer irreparable injury due to th e expenditure of time and resources on unnecessary discovery. In the first place, “litigation expens es alone do not necessarily qualify as irreparable harm.” In re Lorazepam, 208 F.R.D. at 6. Moreover, the Court has already stayed expert discovery pending disposition of the Rule 23(f) petition, and the remaining fact discovery is limited in scope, thereby minimizing any injury to defendant if the stay is denied. Thus, to the extent this factor weighs in defendant’s favor, it is not a significant consideration. On the question of harm to others from gran ting a stay, defendant argues that a stay of discovery would not cause harm to plaintiffs because any delay would be de minimus . However,8 just as it is almost impossible to predict whethe r the Court of Appeals will grant the Rule 23(f) petition, it is impossible to know when it will ma ke its decision. What the Court does know is that with briefing not scheduled to be completed until the end of September and no date set for oral argument, the delay will certainl y be more than a couple of months, cf. In re Lorazepam, 208 F.R.D. at 4–5 (staying case where expected de lay would be limited to a few months), and it could over a year. See, e.g ., In re Johnson , No. 13-8002 (Rule 23(f) pe tition filed on March 11, 2013; referred to merits panel on June 21, 2013; fully briefed by December 16, 2013; oral argument date set on February 18, 2014; oral argument held on April 21, 2014; petition denied on August 1, 2014, one year and 5 months after it was filed). In addition, given the injunctive nature of the relief sought in this case, and the nature of the class, de laying the litigation will almost certainly deprive some class members of th e opportunity to benefit from any relief that is obtained. 4 Thus, on balance, the Court finds that plaintiffs “have demonstrated a risk of significant harm that offsets that faced by defendant s, particularly in light of defendants’ failure to show a substantia l likelihood of prevailing on the merits of their appeal.” In re Rail Freight , 286 F.R.D. at 94. Finally, on the question of the pub lic interest, the Court finds that if the public interest is “rooted in the proper resolution of the important issues raised in this case,” as defendant contends, granting a stay of discovery would not further that interest. In sum, the Court finds that defendants have failed to demonstrate that the lik elihood of success of their appeal is sufficiently high that the costs of proceeding with fact discovery

4 As defendant is aware, since the commencem ent of this litigation in 2010 several named plaintiffs have died.9 outweigh the costs of further delay. Accordingl y, the Court concludes that no stay of fact discovery is warranted.
II. DISCOVERY ISSUES The parties’ Joint Status Report proposes a schedule for remaining fact discovery should the Court decide, as it has, to deny defendant’s mo tion for a stay. (Joint Status Report, July 10, 2014 [ECF No. 140].) According to that report, the parties ag ree that all answers to all interrogatories (including supplementation of existing responses) and production of all responsive documents (including supplementati on of existing document productions) shall be completed by September 12, 2014, and that all fa ct witness depositions, including 30(b)(6) depositions, shall be completed by December 31, 2014. ( Id . at 1.) Defendant does not contemplate any additional depositions of the named plaintiffs, but ma y seek a third-party deposition related to a recently rele ased report on long-term care. ( Id . at 2.) Plaintiffs intend to take additional depositions in preparation for trial. ( Id . at 2.) The parties disagree on only two matters. First, “it is the Dist rict’s position that Plaintiffs are required to obtain leave of Court, pursuan t to Rule 30(a)(2), in order to conduct any additional depositions, as they already have taken twelve depositions in this matter.” ( Id . at 2 (citing Fed. R. Civ. P. 30(a)(2)(A)( i)).) Second, plaintiffs “ques tion the purpose of Defendant’s notice of specific third-party discove ry subjects at this junction.” ( Id . at 2.) To the extent these anticipated discovery disputes cannot be resolved by the parties, the Court will refer them to Magistrate Judge Ka y for resolution. CONCLUSION Accordingly, and for the reas ons stated above, it is hereby10 ORDERED that defendant’s renewed motion for a stay of discovery [ECF No. 138] is DENIED ; and it is further ORDERED that all discovery disputes are referr ed to Magistrate Judge Alan Kay for resolution.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: August 8, 2014