[00:00:01] Speaker 01:
Case number 16-7076, DL at L versus District of Columbia, a municipal corporation at L appellants.

[00:00:09] Speaker 01:
Ms.

[00:00:09] Speaker 01:
Pittman for the appellants, Mr. Gluckman for the appellee.

[00:01:05] Speaker 06:
Good morning.

[00:01:07] Speaker 06:
May it please the court.

[00:01:08] Speaker 06:
I'm Lucy Pittman on behalf of the district appellants, and I would like to reserve three minutes for rebuttal.

[00:01:14] Speaker 06:
The district court lacked jurisdiction in this case when the case came back on remand.

[00:01:20] Speaker 06:
And in 2013, the plaintiffs filed a second amended complaint and a request to certify four subclasses.

[00:01:27] Speaker 06:
At that time, the named plaintiffs had moot claims.

[00:01:31] Speaker 06:
Plaintiffs' Council did not substitute for individuals with live claims, and the case should have been dismissed as moot at that time.

[00:01:41] Speaker 06:
Now, there are exceptions to mootness in the class context, and plaintiffs in this case have indicated that they believe the inherently transitory claim exception applies.

[00:01:53] Speaker 03:
Would you mind just starting with the Garrity, with the relation back exception?

[00:01:59] Speaker 03:
Sure.

[00:02:00] Speaker 03:
Why don't you start with that?

[00:02:01] Speaker 06:
Sure.

[00:02:01] Speaker 06:
I actually see two places in which relation back applies with the Supreme Court, and one is Garrity, where there is a procedural error that occurred.

[00:02:10] Speaker 06:
So in Garrity, he had a live claim when he sought class certification, and the district court erroneously denied certification.

[00:02:18] Speaker 03:
Isn't that...

[00:02:19] Speaker 03:
Focusing on the word erroneous, isn't that exactly what happened here?

[00:02:25] Speaker 03:
It was the erroneous denial that prevented the class from obtaining independent legal status from the named plaintiff.

[00:02:35] Speaker 03:
Here it's the erroneous grant of an excessively broad class that prevented the class from obtaining independent legal status.

[00:02:49] Speaker 03:
Why aren't they exactly the same?

[00:02:51] Speaker 06:
I would say that the difference is that here, as you mentioned, there isn't a denial.

[00:02:57] Speaker 06:
And here, I think the thing that prevents the class from having, from being able to be certified, is that there wasn't a named plaintiff who had a live claim.

[00:03:06] Speaker 06:
There was certainly an opportunity to add those.

[00:03:09] Speaker 06:
And there are cases like McLaughlin and Garrity where there were individuals.

[00:03:13] Speaker 06:
In McLaughlin, they actually did add named plaintiffs with live claims.

[00:03:17] Speaker 06:
In Garrity, they sought to do so.

[00:03:19] Speaker 06:
And I also take the Supreme Court literally that when they say it's limited to a denial of class certification, which is what they said in Garrity.

[00:03:29] Speaker 03:
When the plaintiffs first saw the class certification and the district court granted it, they all had, all the plaintiffs had standing at that point.

[00:03:41] Speaker 03:
They named plaintiffs, right?

[00:03:42] Speaker 06:
I believe that's right, in 2006.

[00:03:44] Speaker 06:
Right.

[00:03:45] Speaker 03:
And so the only thing that prevented the class from obtaining the independent legal status it needed to be certified, even though the named plaintiffs lost their standing later, was the erroneous ruling of the district court.

[00:04:04] Speaker 03:
And that's the same here, isn't it?

[00:04:08] Speaker 03:
That's exactly the same here.

[00:04:09] Speaker 03:
Sure, that was a denial in Garrity, but this was an erroneous grant.

[00:04:16] Speaker 03:
It was too broad.

[00:04:17] Speaker 03:
Had that ruling been correct, there wouldn't be a problem.

[00:04:23] Speaker 03:
So what's happening here, the way I see this case is that what Garrity's getting at is it's not fair to deny class certification if the lack of standing of the name plaintiff occurs because of a district court's error.

[00:04:43] Speaker 03:
To me, that's what that case is about.

[00:04:46] Speaker 03:
And to me, that's what happened here.

[00:04:48] Speaker 06:
I don't know that we can pin all of it on it being the district court error.

[00:04:52] Speaker 06:
I think certainly plaintiffs had an opportunity in defining that original class and trying to define it with a common contention, as well as throughout the duration of that litigation to try to correct.

[00:05:02] Speaker 03:
When they first filed their, when it was first, the first certification came pre Walmart.

[00:05:09] Speaker 03:
So they weren't on any notice then.

[00:05:11] Speaker 03:
And after notice, even the plaintiffs suggested four subclasses, which the district court didn't take them up on.

[00:05:17] Speaker 06:
Right, but even at that point, the named plaintiff's claims were not lie.

[00:05:23] Speaker 06:
And I think there's a reason why we see in all of these cases that have these issues.

[00:05:28] Speaker 06:
And Losardi at a Third Circuit I think is a similar case, and Culver out of the Seventh Circuit is similar, where the court is saying when you have

[00:05:36] Speaker 06:
a class that has been decertified, or in this case, vacated, it is an obligation to come up with named plaintiffs who have live claims if you want to proceed.

[00:05:46] Speaker 03:
Well, that's only if relation back doctrine doesn't apply.

[00:05:49] Speaker 03:
I mean, if they don't have to do it, there's no reason to.

[00:05:51] Speaker 03:
I mean, maybe it would be a good idea.

[00:05:53] Speaker 03:
Maybe the district court will do that.

[00:05:55] Speaker 03:
But if the relation back doctrine applies, they don't really have any obligation to come up with new plaintiffs.

[00:06:01] Speaker 06:
Well, I also think that what's key in Garrity is that the court was indicating that the relation-backed doctrine, there are two things with regard to mootness that Garrity pointed out.

[00:06:11] Speaker 06:
One was no live issue.

[00:06:13] Speaker 06:
And the court indicated that there was demonstrated evidence of a live issue because there were current inmates who were subject to the guidelines who were saying, I would like to be substituted.

[00:06:24] Speaker 06:
We don't have that here.

[00:06:25] Speaker 06:
No parent or child has been offered to substitute.

[00:06:29] Speaker 06:
So we first do not have the first aspect of mootness, which is there's no demonstrated live issue.

[00:06:34] Speaker 06:
The second issue is the cognizable interest.

[00:06:36] Speaker 06:
And Mayor Garrity indicated you could relate back where, if the individual who sought the certification had a live claim when he sought it, but for this erroneous denial, there would have been a class certified.

[00:06:49] Speaker 06:
Here, when we went back in 2013, none of the named plaintiffs had a live claim.

[00:06:55] Speaker 06:
So we don't have a demonstrated showing of there being a live injury.

[00:06:59] Speaker 03:
Maybe she had become moot because of the district court's erroneous decision and correction by this court of appeals.

[00:07:05] Speaker 03:
That's why they didn't have live claims anymore.

[00:07:11] Speaker 06:
I'm having a hard time seeing where the cases fall into that line.

[00:07:17] Speaker 05:
Can you tell me exactly when this moot is attached?

[00:07:23] Speaker 05:
Do we know?

[00:07:23] Speaker 05:
Everyone's sort of vague about somewhere in between these two events.

[00:07:26] Speaker 06:
Sure.

[00:07:27] Speaker 06:
It looks like it was about in 2009 that you could indicate that all of the named plaintiff's claims became moot.

[00:07:34] Speaker 06:
So these are preschool child find claims and so they're good for during the preschool years of between three and five but then also if the if the injury is discovered later then they would be longer than the two years and then there's also the ultimate compensatory education that was provided and so by 2009 they were all over the age of five and all services had been provided.

[00:07:56] Speaker 05:
Is the harm that's happening to them

[00:08:00] Speaker 05:
Has the harm that's happening to them from that stopped?

[00:08:04] Speaker 05:
If they didn't get services early that they needed.

[00:08:08] Speaker 06:
I mean, that's what the compensatory.

[00:08:10] Speaker 06:
I don't believe so.

[00:08:11] Speaker 06:
I think that's what the compensatory education that was provided to them resolved.

[00:08:15] Speaker 06:
And so, and there hasn't been a dispute at any juncture that indeed any of those named plaintiffs have a live claim still to this day in terms of preschool child.

[00:08:25] Speaker 03:
But they're not seeking compensatory education here.

[00:08:27] Speaker 03:
I'm sorry?

[00:08:28] Speaker 03:
They're not seeking compensatory education.

[00:08:30] Speaker 06:
No, they're not.

[00:08:31] Speaker 03:
Sorry.

[00:08:31] Speaker 03:
They're not.

[00:08:31] Speaker 03:
I mean, the harm is still ongoing.

[00:08:34] Speaker 03:
I don't hear DC denying that they're still out of compliance with IDEA.

[00:08:41] Speaker 03:
You're arguing mootness, class action.

[00:08:43] Speaker 03:
You've got some quibbles about the injunction, but I don't.

[00:08:47] Speaker 03:
You're not here telling us that the underlying problem has been solved.

[00:08:52] Speaker 03:
So you do have continuing harm in terms of the injunctive relief the plaintiffs are seeking.

[00:09:00] Speaker 06:
I think there's an affirmative obligation on plaintiffs to have an individual who can represent the class.

[00:09:05] Speaker 03:
As I said, that's only if the relation-back doctrine doesn't apply.

[00:09:09] Speaker 06:
I think that also relates to whether there's actually a live issue.

[00:09:13] Speaker 06:
And so to the extent that there is still... But we don't dispute the members of the class.

[00:09:18] Speaker 05:
are have live claims and are continuing to be harmed.

[00:09:23] Speaker 06:
Certainly if there are members of the class.

[00:09:25] Speaker 05:
Would you dispute that there are members of the class?

[00:09:27] Speaker 06:
I don't dispute that there would be child find claims today involving preschool child find.

[00:09:35] Speaker 06:
Certainly the district is not stating that.

[00:09:37] Speaker 05:
I thought your complaint was about the name plaintiffs.

[00:09:39] Speaker 05:
That's right.

[00:09:40] Speaker 05:
There's a controversy between you and the class that's still alive.

[00:09:45] Speaker 06:
But there can't be a class without there being a representative member who can represent those claims.

[00:09:51] Speaker 06:
And so we are sitting here today not knowing that if indeed the preschool child find is so bad, why is it so difficult to locate someone who has a live claim?

[00:10:03] Speaker 03:
Well, you don't know that it's difficult.

[00:10:05] Speaker 03:
I mean, there's nothing in the record that suggests they tried to find, or is there?

[00:10:11] Speaker 03:
Am I missing something?

[00:10:12] Speaker 03:
Is there something in the record that suggests that counsel tried to find New Planus and no one signed up?

[00:10:18] Speaker 06:
not that I'm aware of.

[00:10:19] Speaker 03:
That's my point.

[00:10:20] Speaker 03:
I mean, if I keep going back to my point earlier, which is if if the relation back doctor applies, they have no obligation to find other plans.

[00:10:29] Speaker 03:
Now, maybe the district court would, over a period of time, decide it's a good idea to get a fresh representative plaintiffs and and uh, guarantee says he can do that.

[00:10:40] Speaker 03:
But um, what I don't get is

[00:10:45] Speaker 03:
Just stepping back for a minute, in terms of ensuring that we have a justiciable case here with sharp issues, that's what Garrity talked about, right?

[00:10:59] Speaker 03:
The issues are sharpened, you've got vigorous advocates and a continuing problem.

[00:11:07] Speaker 03:
And Garrity's got all this language in it about how these mootness questions are flexible, they're not fixed, right?

[00:11:14] Speaker 03:
So we're looking at the whole picture.

[00:11:16] Speaker 03:
What's the reason for us to say, well, given Garrity and all that language, we should conclude that this case is just not distinguishable?

[00:11:26] Speaker 03:
Do you see my point?

[00:11:28] Speaker 03:
What value would there be in that?

[00:11:29] Speaker 03:
Wouldn't that do terrible damage to the need to correct the underlying problem that this class is still suffering?

[00:11:38] Speaker 03:
So why would we do that?

[00:11:41] Speaker 06:
I think a couple of things here.

[00:11:43] Speaker 06:
And I would like to actually go back to the relation back principle just for one moment.

[00:11:48] Speaker 06:
Because the Supreme Court did talk about it again in SimCic in 2013.

[00:11:51] Speaker 06:
And there you have similarly, it wasn't a class action, it was a collective action, but they looked at and relied upon class action cases, including Garrity.

[00:12:02] Speaker 06:
And there they said the relation back doctrine couldn't apply because there was nothing to relate back to.

[00:12:07] Speaker 06:
There you have a class that,

[00:12:09] Speaker 06:
The named plaintiff's claim became moot.

[00:12:12] Speaker 06:
She sought certification after it was moot and the court said in that context you can't relate back because the relating back is to the request for certification.

[00:12:22] Speaker 06:
And so that's what we have here and that's why in McLaughlin and in Culver you have this language about people being added with live claims or quite frankly in Culver the really harsh criticism for not doing so.

[00:12:33] Speaker 06:
The other aspect is we do need to be mindful that these are not exactly the same classes.

[00:12:38] Speaker 06:
They're very similar and I would say Getting into the Walmart argument that they are that they're very similar, but they are indeed different classes The first class was one very broad class and now we're coming in with four subclasses So I also don't know that we're relating back to the same request the first request was

[00:12:58] Speaker 06:
fully litigated with Rule 23 analysis.

[00:13:01] Speaker 06:
So for example, the Gale case that is cited in plaintiff's brief with regard to whether or not the Rule 23 or the class certification had been litigated to completion, it had been litigated to completion in that first request.

[00:13:14] Speaker 05:
Can I just clarify one thing you just said?

[00:13:16] Speaker 05:
Are you asserting that when the district court created these subclasses that it

[00:13:23] Speaker 05:
added people that were not included in the original broad class or subtracted people that would have been included within that original class?

[00:13:32] Speaker 05:
Or I think you said you're not sure it's the same class.

[00:13:35] Speaker 06:
It's fundamentally very similar.

[00:13:37] Speaker 06:
I guess I haven't actually done the analysis to see if there would be some people who would be included or excluded.

[00:13:41] Speaker 05:
Well, I wasn't sure why you were saying that.

[00:13:43] Speaker 05:
I hadn't heard any argument that, in fact, the reason we don't have relation math is that we actually have different people in these classes as opposed to

[00:13:53] Speaker 05:
litigative breakdowns.

[00:13:55] Speaker 06:
If my answer led you to believe that I meant different people, then I will correct that.

[00:13:59] Speaker 05:
I agree that these four subclasses, for purposes of this argument, are the same.

[00:14:05] Speaker 05:
We haven't changed who the class are other than continuing.

[00:14:08] Speaker 05:
People are always adding, but that was happening before.

[00:14:10] Speaker 05:
There's always new folks coming into these classes.

[00:14:12] Speaker 06:
I mean, I think my argument was to indicate that this was a new request for class certification.

[00:14:17] Speaker 06:
That the first request for class certification had been fully litigated and had gone up on appeal so that, for example, the Gale argument is not applicable.

[00:14:26] Speaker 06:
And that, indeed, they went back and divided that large class into four.

[00:14:31] Speaker 03:
And you say in your brief, maybe this is segueing into another issue, but you say in your brief that these four really aren't any different than the original class.

[00:14:43] Speaker 03:
That you say basically what they're arguing is that there's just a violation of IDEA.

[00:14:51] Speaker 03:
That's what your brief says, right?

[00:14:53] Speaker 03:
And let me just ask you this, because it seems to me the question I want to ask you kind of wraps up

[00:15:01] Speaker 03:
both the question of class certification and the remedy and everything.

[00:15:08] Speaker 03:
It's contrary to what you say in your brief.

[00:15:09] Speaker 03:
This isn't just a general allegation about violating IDEA.

[00:15:15] Speaker 03:
Each of these subclasses assert a completely different failure in D.C.

[00:15:22] Speaker 03:
policy at a different stage of the child find process.

[00:15:26] Speaker 03:
And they take, for example, subclass one, identification.

[00:15:30] Speaker 03:
right?

[00:15:31] Speaker 03:
They're saying the allegation is that the district is failing to comply with its identification obligations under IDEA, not IDEA generally, but its identification obligations.

[00:15:44] Speaker 03:
And then there's, you know, there's this statistical findings that

[00:15:50] Speaker 03:
It's now 6%.

[00:15:53] Speaker 03:
It should have been 8.5%.

[00:15:55] Speaker 03:
And the court entered an injunctive order that focuses on that.

[00:15:59] Speaker 03:
So what you have is a unique element of DC policy here, identification, that can, in Walmart terms, be resolved on the basis of the same facts.

[00:16:17] Speaker 03:
they are or they aren't, and it can be corrected with, as Walmart said, a stroke of a pen.

[00:16:25] Speaker 06:
I'm sorry, I missed the last part.

[00:16:26] Speaker 03:
A stroke of a pen, the injunction.

[00:16:29] Speaker 03:
So why isn't this just exactly what Walmart was directing the district court to do?

[00:16:37] Speaker 03:
I could go through all of these.

[00:16:38] Speaker 03:
They're all the same.

[00:16:39] Speaker 03:
It's exactly the same for eligibility determination, and it's exactly the same for transition.

[00:16:44] Speaker 03:
Each identifies an element of idea.

[00:16:47] Speaker 03:
Each rests on a common set of facts.

[00:16:52] Speaker 03:
Each has evidence that relates to it, and each is dealt with by an injunction.

[00:16:59] Speaker 03:
What else does Walmart require?

[00:17:01] Speaker 06:
So I think Walmart and I think that this court's opinion in the first DL opinion does require more.

[00:17:06] Speaker 06:
I think it requires more than to define the classes based upon all members have suffered from the same violation of law.

[00:17:13] Speaker 06:
And we have to be mindful that's exactly what the district court said when it justified certifying these four subclasses, that the reason that they solved the broadness problem was because they were divided according to the specific IDEA violations.

[00:17:27] Speaker 03:
And I think that Walmart... Is this your point that, well, you know, let me stick with identity, okay?

[00:17:32] Speaker 03:
Is this your point, you say it in the brief, that, well, you know, a child might not have been identified for several different reasons, right?

[00:17:39] Speaker 03:
That's your point, right?

[00:17:41] Speaker 03:
But then, first of all, I don't see anything in Walmart that requires

[00:17:46] Speaker 03:
that if you have a discrete policy violation like they have here, that it has to affect each member of the class the same way.

[00:17:55] Speaker 03:
The point is the policy that is, the policy is failing

[00:18:01] Speaker 03:
Under the policy, the district is failing to achieve its obligation to identify these students.

[00:18:08] Speaker 03:
And if you're right that the fact that they're identified in different ways or unidentified in different ways is a problem, then I don't see how anybody could bring a class action.

[00:18:18] Speaker 03:
What you'd have to bring under your theory is your plaintiff would have to be a group of people who were not identified and all who were not identified, for example, one of yours is insufficient outreach.

[00:18:36] Speaker 03:
So presumably you'd have to have a subclass that says all students who were not identified because of the district's failure and who were not identified because of insufficient outreach.

[00:18:48] Speaker 03:
Is that what you're saying?

[00:18:50] Speaker 06:
I think what I'm saying is precisely what I think Walmart in the first opinion in this case said, which is there does need to be a uniform policy or practice identified.

[00:18:59] Speaker 03:
And I disagree that there is one.

[00:19:00] Speaker 03:
But there is theories on the identity.

[00:19:02] Speaker 03:
The district is failing.

[00:19:04] Speaker 03:
Why is that not the uniform policy?

[00:19:07] Speaker 06:
I think that to give an example of where I think you could have a class action for subclass one would be, for example, if there was this policy, then they have a robust policy for identifying children, but it excluded homeless children.

[00:19:21] Speaker 06:
You could have a class of homeless children who are not identified.

[00:19:25] Speaker 06:
Or if it excluded foster children, you could have a class of children that way.

[00:19:29] Speaker 03:
What in Walmart tells you that that's required?

[00:19:33] Speaker 06:
Well, what Walmart indicates in applying it to this case previously is that all of the class members need to have a common link or glue that holds their claims together.

[00:19:44] Speaker 06:
And the reason that you could have in subclass one, and I'll give you an example of why it can be very difficult to state that just identification is sufficient, is how has the district failed a child who, for example, might be a homeless child in ward seven and who is in and out of homeless shelters and isn't identified?

[00:20:00] Speaker 06:
and a child who lives in Upper Northwest who goes to a pediatrician in Maryland and thus doesn't have.

[00:20:08] Speaker 03:
But all those problems will be taken care of under this injunction.

[00:20:12] Speaker 03:
What the court has found is that the district, the law requires district to identify all three to five year olds with disabilities, right?

[00:20:25] Speaker 03:
That's what's in the law.

[00:20:27] Speaker 03:
Right?

[00:20:28] Speaker 03:
That's right.

[00:20:28] Speaker 03:
OK.

[00:20:29] Speaker 03:
And it's clear from the statistics that the DCPS is not doing that.

[00:20:35] Speaker 03:
In other words, we know that from the statistics, and we know that from the absolute numbers.

[00:20:40] Speaker 03:
100 to 500 kids a month are not being identified.

[00:20:43] Speaker 03:
The district courts, and that's a fact, it's been proven in this case.

[00:20:46] Speaker 03:
You have some quibbles with the evidence, but you raise those in the district court, and you didn't agree with you.

[00:20:51] Speaker 03:
That's an established fact.

[00:20:53] Speaker 03:
The injunction requires that to be corrected by half a percent a year.

[00:20:57] Speaker 03:
Now, that goes directly to the violation of IDEA, namely the identity obligations under fine.

[00:21:07] Speaker 03:
And if there are different reasons why children aren't being identified, the district will have to figure that out as it complies with the order.

[00:21:15] Speaker ?:
Right?

[00:21:16] Speaker 06:
I think Walmart requires more.

[00:21:17] Speaker 06:
I think that, for example, plaintiffs counsel note that there are three policies that are actually identified in the findings of fact.

[00:21:25] Speaker 06:
What's important there is not one of those policies applies to subclass one.

[00:21:29] Speaker 06:
We are sitting here without knowing what exactly the district is falling short with in terms of subclass one.

[00:21:35] Speaker 03:
It's pretty obvious.

[00:21:36] Speaker 03:
It's totally obvious.

[00:21:38] Speaker 03:
The district court accepted this money from the federal government.

[00:21:42] Speaker 03:
And it made a pledge, right, to identify all children.

[00:21:47] Speaker 03:
It isn't.

[00:21:49] Speaker 03:
Period.

[00:21:51] Speaker 03:
Why is it any more complicated than that?

[00:21:53] Speaker 06:
Because the reason that the child is not identified is going to be relevant for how you get to a common answer, which is what Wal-Mart asks for.

[00:21:59] Speaker 03:
The common answer is the district must identify all children.

[00:22:05] Speaker 03:
children with disabilities, period.

[00:22:08] Speaker 03:
That's the deal DC made with the federal government.

[00:22:12] Speaker 03:
If it didn't want to do it, it didn't have to take the money.

[00:22:15] Speaker 03:
Right?

[00:22:16] Speaker 03:
But it took the money.

[00:22:16] Speaker 03:
That's its obligation.

[00:22:18] Speaker 03:
And actually, in my sense, that's the clearest example here of a common policy.

[00:22:23] Speaker 03:
It's right in the statute.

[00:22:27] Speaker 06:
I mean, I don't know how to answer the question differently other than to state that I think Walmart and the first DL opinion requires more than a violation of a provision of IDEA.

[00:22:36] Speaker 06:
I do see that I am out of time, and so I want to be mindful of that.

[00:22:40] Speaker 03:
Yeah.

[00:22:41] Speaker 03:
OK, well, I'll give you a few extra minutes.

[00:22:43] Speaker 03:
OK, thank you.

[00:22:44] Speaker 03:
Thank you.

[00:22:52] Speaker 01:
Good morning, Your Honors.

[00:22:53] Speaker 01:
May it please the court.

[00:22:54] Speaker 01:
I'm Todd Blockman and I represent the plaintiffs.

[00:22:56] Speaker 01:
This case is about the critical requirement on the District of Columbia to find very young children with disabilities and timely provide them with necessary special education services.

[00:23:06] Speaker 01:
Judge Lambert found that such services came with a miracle, and yet the district has been systemically failing to comply for more than a decade.

[00:23:14] Speaker 01:
Contrary to the district's argument, this case falls into three mootness exceptions.

[00:23:17] Speaker 01:
This case is just like Gerrity.

[00:23:19] Speaker 01:
I just want to address a few points.

[00:23:22] Speaker 01:
Number one, when this case went back down for subclass certification, they were the exact same class representatives just allocated to subclasses.

[00:23:30] Speaker 01:
Number two,

[00:23:32] Speaker 01:
Garrity also dealt with an issue of subclasses.

[00:23:35] Speaker 01:
There was a single class certified in the District Court in Garrity.

[00:23:38] Speaker 01:
The Supreme Court addressed the fact that there may be appropriate for subclasses to be certified.

[00:23:44] Speaker 01:
Of course, the claims were moot at that time.

[00:23:46] Speaker 01:
They went back down to the District Court and the claims were certified.

[00:23:49] Speaker 01:
The fact that the class got divided into four subclasses does not pose an issue.

[00:23:55] Speaker 01:
And plaintiffs, of course, have live claims within the class.

[00:24:00] Speaker 01:
Judge Lamberth issued an 130 page decision stating that the district is failing substantially to provide children.

[00:24:06] Speaker 05:
In that regard, the way the subclasses are phrased, is it the first one, the child kind one?

[00:24:19] Speaker 05:
It includes everyone who, when they were,

[00:24:25] Speaker 05:
three to five, or will be between three to five.

[00:24:31] Speaker 05:
So that sounded to me as though these classes actually don't stop, you don't exit the class when you turn five, because you have the word were in there.

[00:24:40] Speaker 05:
So you seem to encompass people even after they've aged out.

[00:24:46] Speaker 05:
And so I'm trying, so I was asking before, is there some aspect in which apart from the compensatory education claims that you envisioned when you put were in here,

[00:25:01] Speaker 05:
The injector relief is actually still relevant even after you've left.

[00:25:05] Speaker 05:
Is there some aspect of that that would overlap with compensatory or inform the compensatory education?

[00:25:09] Speaker 05:
Why is the word work there?

[00:25:10] Speaker 05:
What does it do?

[00:25:12] Speaker 01:
I expect that when we initially put that in there that the compensatory education issue may have been relevant, but of course we have had this class

[00:25:19] Speaker 01:
certified under 23B2.

[00:25:21] Speaker 01:
There are no claims for individualized relief and we're simply seeking an injunction.

[00:25:26] Speaker 05:
I'm trying to figure out how the injunctive relief helps folks that were.

[00:25:30] Speaker 05:
I'm not understanding about the linkage because your name plaintiffs actually still do fall within this class definition because of the word were so that's what I'm just trying to understand.

[00:25:41] Speaker 01:
That's exactly right your honor.

[00:25:42] Speaker 01:
I mean even after a child

[00:25:46] Speaker 01:
moves on if they have not been identified, they've not received the care that they needed.

[00:25:52] Speaker 01:
Obviously, it is important that this injunction be in place so that they actually do eventually receive the services that they need.

[00:26:00] Speaker 01:
Once a child doesn't receive a smooth and effective transition at age three, assume that they didn't get their services at age five, still haven't gotten their services at age six.

[00:26:09] Speaker 01:
They still are going to have a claim for that relief and an injunction would have an impact on them.

[00:26:12] Speaker 04:
They still have a live interest in the liability determinations that were made here.

[00:26:16] Speaker 01:
They certainly would.

[00:26:18] Speaker 01:
Now, this case also falls under the SOSNA and the inherently transitory exceptions.

[00:26:23] Speaker 01:
IDEA cases, I've read they're very nature inherently... By the way, do you have to meet both of them?

[00:26:27] Speaker 03:
No, Your Honor.

[00:26:28] Speaker 01:
These are all... They're independent?

[00:26:30] Speaker 01:
Independent.

[00:26:31] Speaker 03:
They're all outcopies of the same... Just go ahead.

[00:26:33] Speaker 03:
I just wanted the answer to that.

[00:26:34] Speaker 03:
So explain the transitory one then.

[00:26:36] Speaker 03:
Sure.

[00:26:37] Speaker 03:
Yeah.

[00:26:37] Speaker 01:
For example, if you have a child who doesn't receive services by that child's third birthday, they're only going to have a live claim for injunctive relief until they receive those services.

[00:26:45] Speaker 01:
Now, that could take a day, a week, a month, or longer, as was the case certainly when these plaintiffs were going through the system.

[00:26:52] Speaker 01:
But in any event, they're inherently transitory.

[00:26:55] Speaker 01:
And as I was saying, these are all outcroppings of the same fundamental principle, which is that as long as a class still has active claims, and we do, and as long as there's no dilatory conduct, and there has not been here,

[00:27:07] Speaker 01:
The mooting of the named plaintiffs' claims will not moot the class claims, and these claims are not mooted.

[00:27:12] Speaker 01:
Now, the central issue for class certification is commonality.

[00:27:15] Speaker 01:
Of course, the commonality question hinges on the underlying substantive law.

[00:27:19] Speaker 01:
In Walmart, the substantive law is Title VII, so to prevail, the plaintiffs needed to show that Walmart's employment decisions were motivated by discrimination.

[00:27:26] Speaker 01:
The only way to commonly adjudicate the millions of nationwide employment claims would have been if there was a common, unlawful policy which applied to all of the decisions.

[00:27:34] Speaker 01:
Now that of course didn't exist, so you couldn't adjudicate that as a class action.

[00:27:39] Speaker 01:
But Walmart made clear that the issue is whether the claims could be productively litigated at once.

[00:27:45] Speaker 01:
And they couldn't be there, but they could be here, and they were here.

[00:27:48] Speaker 01:
As the district court explained here, the substantive law is entirely different.

[00:27:51] Speaker 01:
Congress imposed an affirmative obligation under the IDEA to have policies and procedures to ensure an identification, the provision of a fate, timely evaluation, and so on.

[00:28:02] Speaker 01:
It's not like Title VII where there's a prohibition on discrimination.

[00:28:05] Speaker 01:
There's an affirmative obligation, and plaintiffs alleged and proved that the district's policies and practices were not effective to meet their affirmative obligations.

[00:28:12] Speaker 01:
Now, there are several statements in Walmart that the district attempts to use to their advantage, and we heard one of them right now, but those relate to Title VII law and not to the claims here.

[00:28:21] Speaker 01:
For example, in Walmart you needed to know the reasons for the employment decision because that's necessary to adjudicate a Title VII claim.

[00:28:28] Speaker 01:
That's not necessary here to show liability.

[00:28:31] Speaker 01:
What's necessary to show a liability is a failure to comply with the affirmative obligations under the IDEA.

[00:28:37] Speaker 01:
We've shown that, and all of the claims are clued together.

[00:28:39] Speaker 01:
I was just going to say that plaintiffs in each subclass are challenging the exact same conduct by defendants, and there are no individualized determinations.

[00:28:49] Speaker 05:
I was just wondering if, when you have something like this as spending clause legislation, so it's nothing like Title VII, where Congress sets up a scheme that gives

[00:29:01] Speaker 05:
States will make promises to get the money, but then the states have some flexibility in how they implement it as long as they achieve the required goals.

[00:29:12] Speaker 05:
So in a context like that, does the Walmart conception of having to identify what they, their sense of you have to identify exactly what we didn't do, was it a social worker breakdown, was it a outreach breakdown, was it an information breakdown,

[00:29:32] Speaker 05:
That's really for them to decide how they're going to implement it.

[00:29:37] Speaker 05:
Does that sort of change the Walmart inquiry in the spending clause context?

[00:29:43] Speaker 01:
I don't have flexibility to discriminate Walmart.

[00:29:47] Speaker 01:
I think I understand the question.

[00:29:48] Speaker 01:
I don't know why that would change.

[00:29:51] Speaker 01:
The district court in its injunction left the district with substantial discretion.

[00:29:56] Speaker 01:
They say this is an onerous injunction.

[00:29:58] Speaker 05:
At some point they have to have maneuvering room.

[00:30:03] Speaker 05:
They have to meet goals and obligations and promises.

[00:30:07] Speaker 05:
But the statutory scheme, spending clause legislation, leaves them maneuvering rooms.

[00:30:10] Speaker 05:
So it would be a little odd then if, to state a class, you had to go in and say, actually, you had to do it this way.

[00:30:16] Speaker 05:
You didn't do A, B, C, and D, so I now have four classes for A, B, C, and D. I think you broke the promise.

[00:30:23] Speaker 05:
That's our job.

[00:30:25] Speaker 01:
I think that's right, Your Honor.

[00:30:27] Speaker 01:
And that's exactly what I think your point is right with regard to commonality.

[00:30:32] Speaker 01:
And as it came to injunctive relief,

[00:30:37] Speaker 01:
The court required them to hit a benchmark, gave them the flexibility to determine exactly how to do so.

[00:30:43] Speaker 00:
I have a question.

[00:30:44] Speaker 00:
What's the source of the cause of action for subclasses three and four?

[00:30:50] Speaker 01:
The source of the cause of action is the IDEA itself.

[00:30:54] Speaker 00:
But there's no private cause of action under there, unless it's for denial of faith.

[00:30:59] Speaker 00:
And didn't district court say there was no denial of faith alleged in three and four?

[00:31:05] Speaker 00:
Or am I reading that wrong?

[00:31:07] Speaker 01:
I'm not sure that there's no right to a cause of action unless you've denied a FAPE.

[00:31:13] Speaker 00:
Oh, really?

[00:31:14] Speaker 00:
You think there's an applied cause of action for some procedural violation where FAPE is not necessarily denied?

[00:31:21] Speaker 01:
Well, the issue where this comes up typically is if you have an individual case and you have a child who has, say, an IEP that's delayed by several days and perhaps there's no substantive violation,

[00:31:33] Speaker 01:
that child, because that child has not suffered a substantive violation, that child could not bring a claim for a violation of a faith.

[00:31:42] Speaker 01:
I don't see any reason that that rule, same rule would apply where there's an overt obligation on the district to develop policies and practices that require them.

[00:31:53] Speaker 00:
So you think there is an implied cause of action for, that isn't necessarily based in a denial of faith?

[00:32:00] Speaker 01:
I don't know that it's implied.

[00:32:02] Speaker 01:
I think it's out outright in the express in the statute.

[00:32:05] Speaker 00:
I thought the statute was only was clear that it's only for denial of faith.

[00:32:09] Speaker 01:
I don't I don't believe that's right.

[00:32:11] Speaker 01:
I apologize if I'm missing something.

[00:32:13] Speaker 01:
But the the idea

[00:32:17] Speaker 01:
The Supreme Court has said that plaintiffs can bring any claims under the IDEA where there's issues related to identification, evaluation, transitions.

[00:32:28] Speaker 01:
I believe there was a long list.

[00:32:31] Speaker 01:
And the first step, this is in Raleigh, is to look at whether or not the state has developed the policies and procedures that are necessary.

[00:32:39] Speaker 01:
I believe that the way the law has developed that if you haven't brought a found violation of a fate, then you can't proceed on those sorts of claims.

[00:32:47] Speaker 01:
But in any event, if

[00:32:50] Speaker 01:
if there's an individual claim.

[00:32:52] Speaker 01:
But I don't know why that would apply in a systemic context.

[00:32:56] Speaker 01:
And here, what we have shown, we presented evidence showing numerous children having extensive delays.

[00:33:03] Speaker 01:
We had our statistical experts present.

[00:33:07] Speaker 00:
I think in all the Supreme Court cases, there was a denial of faith.

[00:33:11] Speaker 00:
That's the common thread there, and you don't have that in subclass three or four.

[00:33:15] Speaker 01:
Well, certainly many of these children were denied a fate because they are extensive delays with regard to their eligibility determinations and their transitions.

[00:33:26] Speaker 01:
Now, these individual claims were not adjudicated individually, so there was no need to address what impact they would have had on each individual child.

[00:33:37] Speaker 01:
Like I say, I don't – I believe that that is incorrect.

[00:33:40] Speaker 00:
Well, it's a significant issue, isn't it?

[00:33:42] Speaker 00:
Because, I mean, the Secretary has some authority here, right?

[00:33:46] Speaker 00:
And Congress – so the argument would go, Congress has given – created a cause of action when there's a denial of faith, but when there's not a denial of faith and there's a systemic problem, that's the Secretary's domain.

[00:34:00] Speaker 00:
It's not a private cause of action to enforce that.

[00:34:04] Speaker 00:
Congress does that all the time, right?

[00:34:06] Speaker 00:
And there's a pretty robust body of case law that gets us to discourage going around looking for private causes of action.

[00:34:15] Speaker 00:
Congress has to tell us expressly.

[00:34:18] Speaker 01:
Again, I don't see why there is no private cause of action here.

[00:34:23] Speaker 01:
I believe that there is a private cause of action here.

[00:34:27] Speaker 00:
Maybe I'm wrong, but as I read the cases, there's a private cause of action when there is a denial of faith.

[00:34:33] Speaker 00:
And you haven't alleged that for subquest three or four.

[00:34:35] Speaker 00:
That's the only point I've made.

[00:34:36] Speaker 01:
But like I said, those cases all deal with individuals.

[00:34:38] Speaker 01:
I don't think there could be any reason that there would be a rule that plaintiffs, all of whom were denied systemically their rights under to time the eligibility determinations and timely transitions, wouldn't be able to bring a claim.

[00:34:52] Speaker 01:
Let me describe it this way, for example.

[00:34:54] Speaker 01:
Let's assume for a moment the district said we

[00:34:57] Speaker 01:
We don't care what we're obligated to do.

[00:35:00] Speaker 01:
We are going to provide eligibility determinations within 124 days instead of 120 days.

[00:35:08] Speaker 01:
Well, it is certainly possible that few children would suffer a substantive violation in those four days.

[00:35:13] Speaker 01:
But I certainly do not believe that the district courts would be prohibited from ordering the District of Columbia to actually comply with their obligations under the IDEA.

[00:35:24] Speaker 01:
And the issue about the Department of Education is that these are two alternative ways that the IDEA is enforced.

[00:35:33] Speaker 01:
And Judge Lambert found that for 20 years, since 1997,

[00:35:37] Speaker 01:
The Department of Education has been raising issues with the District of Columbia with regard to their non-compliance.

[00:35:42] Speaker 01:
The District simply had not improved and the District has improved.

[00:35:47] Speaker 01:
They certainly have not improved enough.

[00:35:48] Speaker 01:
But the District has improved and the District Court found that the improvement was a result of this suit.

[00:35:54] Speaker 01:
The only other alternative would be essentially to let the system go the way it is and allow the District to flaunt its obligations to the children of the District.

[00:36:04] Speaker 01:
Now, when we were last before the court, the classes were all bunched up into one group.

[00:36:10] Speaker 01:
But now, they are broken up into subclasses.

[00:36:12] Speaker 01:
And each subclass lines up with a common contention for that class.

[00:36:16] Speaker 01:
And the IDEA claims that that class is bringing.

[00:36:19] Speaker 01:
For example, subclass one is children who are not identified.

[00:36:23] Speaker 01:
They allege that the district fails to satisfy its affirmative obligations to identify children.

[00:36:28] Speaker 01:
The common question is whether the district's policies and procedures to fail those children are identified.

[00:36:33] Speaker 01:
The answer is that they are failing, and the district court issued an injunction to fix the problem.

[00:36:39] Speaker 01:
There's a common question, a common answer, common liability, and common injunctive relief.

[00:36:45] Speaker 05:
The question we look to, we're doing this post trial now, how much can we look to what happened at trial to sort of retroactively ratify class action determination?

[00:37:02] Speaker 01:
I think I understand the question.

[00:37:05] Speaker 01:
I think what needs to happen is a determination as to whether the Rule 23 determination was appropriate as an issue.

[00:37:12] Speaker 01:
But the fact that certain facts developed after the fact certainly supports the conclusion.

[00:37:17] Speaker 05:
I'm just asking whether can we consider that.

[00:37:20] Speaker 01:
I think absolutely.

[00:37:21] Speaker 01:
If the question is,

[00:37:22] Speaker 01:
was did the district court issue find an appropriate common question and at trial the court was able to commonly adjudicate the claims that further supports the district court's conclusion that this is a common question capable of common answers.

[00:37:36] Speaker 05:
Have you seen other cases where we've done that?

[00:37:38] Speaker 05:
Where we or other courts have looked to?

[00:37:41] Speaker 05:
of the case to say, I guess it was a good class or subclass.

[00:37:47] Speaker 01:
Quite honestly, I haven't looked at that question one way or the other, so I don't know how to answer that question.

[00:37:51] Speaker 05:
Do you have a distinction of the Seventh Circuit's decision on Jamie S.?

[00:37:55] Speaker 01:
We addressed Jamie S. in a footnote, and I can address Billy there.

[00:37:59] Speaker 01:
There's several distinguishing factors with regard to JMS.

[00:38:02] Speaker 01:
Number one, that case focused substantially on individual relief.

[00:38:05] Speaker 01:
There was a complex individualized dispute resolution mechanism developed in that case.

[00:38:10] Speaker 01:
That's not at all the case here.

[00:38:12] Speaker 01:
This is a B2 action seeking purely injunctive relief.

[00:38:16] Speaker 01:
That case also lacked any sort of statistical evidence, and it had a class definition more similar to the class definition that was before, Your Honors, in 2013.

[00:38:23] Speaker 01:
Now it's broken into subclasses and everything lines up.

[00:38:27] Speaker 01:
In addition, in JMS, they said that policies or procedures could be the basis for a subclass determination, excuse me, for a class certification, and that's exactly what we've shown here.

[00:38:39] Speaker 01:
Your Honors, I see that my time has expired, but if I can... Could you give one more sentence?

[00:38:44] Speaker 03:
What do you want to say?

[00:38:46] Speaker 01:
I'd say it is critical that this injunction remain in place so that the district children can continue to receive the services that Congress required on a timely basis.

[00:38:54] Speaker 01:
Please affirm your honors.

[00:38:55] Speaker 01:
OK, great.

[00:38:56] Speaker 03:
Thank you.

[00:38:57] Speaker 03:
Did counsel have any time left?

[00:39:00] Speaker 03:
You can take two minutes.

[00:39:05] Speaker 00:
You all didn't make my FAPE argument, did you?

[00:39:08] Speaker 06:
We did make an argument that there was no finding of denial of FAPE in this case.

[00:39:15] Speaker 05:
Did you argue that there's no cause of action?

[00:39:17] Speaker 05:
Yeah.

[00:39:17] Speaker 06:
No, I don't recall that.

[00:39:19] Speaker 06:
Why not?

[00:39:21] Speaker 06:
Because I actually read it as they did have a cause of action for denial of faith for all of the classes.

[00:39:27] Speaker 06:
I see, OK.

[00:39:27] Speaker 06:
It wasn't until their opposition brief came in that they said it was secret class one.

[00:39:32] Speaker 00:
But do you disagree with the analysis that you have to allege that the only cause of action that Congress has created here is for denial of faith?

[00:39:40] Speaker 06:
Absolutely.

[00:39:41] Speaker 00:
And I think that the most recent Supreme Court case... The idea that it's been a long time and the district hasn't fixed problems doesn't give us authority to go about fixing them unless Congress has created a clause of action to do so, right?

[00:39:52] Speaker 06:
Right.

[00:39:52] Speaker 06:
I think almost every case talks about a technical violation alone isn't sufficient.

[00:39:56] Speaker 06:
There also needs to be a denial of a fate.

[00:40:00] Speaker 06:
A couple of quick points.

[00:40:01] Speaker 03:
I want to start with on the... Isn't there, by definition, a denial of fate for a child who hasn't been identified?

[00:40:09] Speaker 06:
I don't know that that's the case.

[00:40:10] Speaker 03:
There have been cases that... Really?

[00:40:14] Speaker 03:
What are we talking about?

[00:40:15] Speaker 03:
The difference between the 6% and the 8%, those 2% don't have a fake.

[00:40:22] Speaker 00:
And that's what the district court found, right?

[00:40:23] Speaker 00:
Class 1.

[00:40:24] Speaker 03:
And also, what about the ones for eligibility?

[00:40:29] Speaker 03:
Eligibility, 15% don't get their eligibility in time, which means they don't get their IEP in time.

[00:40:41] Speaker 03:
So they don't have a faith.

[00:40:43] Speaker 06:
I have never seen a court case that has determined that children do not have a FAPE that isn't based upon the individual findings of children and making sure that their unique needs are met.

[00:40:54] Speaker 06:
So I don't know that the percentage by itself is going to get you to a denial of FAPE.

[00:41:00] Speaker 06:
I was going to return to mootness for a moment, if we could.

[00:41:07] Speaker 06:
So a couple of things.

[00:41:11] Speaker 06:
Jurisdiction is a fundamental requirement.

[00:41:13] Speaker 06:
It was easy enough to have been established here, and it wasn't.

[00:41:17] Speaker 06:
When this class came back after remand, it was a class involving named individuals only.

[00:41:23] Speaker 06:
There was not a class in existence at that time that could satisfy jurisdiction.

[00:41:28] Speaker 06:
SOSNA, Garrity, all of these cases are premised on the idea that someone can satisfy jurisdiction, and it wasn't satisfied here.

[00:41:37] Speaker 05:
Isn't there some irony in a case where the complaint is about DC has not found these children that you're complaining that they didn't find them either to make them nameplans?

[00:41:51] Speaker 06:
Yes, I think it goes both ways, quite frankly.

[00:41:53] Speaker 06:
They were supposed to find them even if you hadn't.

[00:41:55] Speaker 06:
If there's really a live issue out there, and if the district court's numbers are correct that it's hundreds of children, yes.

[00:42:05] Speaker 06:
And I don't actually think that the district is doing a poor job of finding children.

[00:42:11] Speaker 06:
I think that the evidence shows that it's all over the city doing what it needs to do to try to do outreach.

[00:42:19] Speaker 05:
But in the first class, the fine class.

[00:42:22] Speaker 05:
I'm sorry?

[00:42:22] Speaker 05:
The children that have been found are not in the first class, first subclass.

[00:42:29] Speaker 06:
Right, so we're presuming that there are children who are not found, although no one has stood up to say, I want to be a representative party of this class.

[00:42:38] Speaker 03:
A quick question on commonality.

[00:42:41] Speaker 03:
So there's two other requirements, this typicality and a single injunction requirement, right?

[00:42:48] Speaker 03:
If I think that they've met the commonality requirement for the three subclasses, is there any independent reason why they wouldn't have also met the other two?

[00:42:59] Speaker 03:
I read your brief as basically saying this is all about commonality.

[00:43:03] Speaker 06:
I think commonality is certainly the larger issue.

[00:43:05] Speaker 06:
But I think, again, we do have a lot of cases that refer to if the individuals have moot claims, they're not going to be adequate representatives.

[00:43:13] Speaker 03:
Forget the moot.

[00:43:13] Speaker 03:
Let's just talk about the three requirements.

[00:43:17] Speaker 03:
In other words, if I think that they've met commonality, you say in your brief district court made the same error in finding typicality as it did in finding commonality.

[00:43:30] Speaker 03:
And I'm just wondering, is there something, in other words, if I think the plaintiffs have met commonality, is there anything more I have to do about typicality and separate and single injunction?

[00:43:43] Speaker 03:
Do you see my point?

[00:43:43] Speaker 03:
Do I have to go on and say, well, now I have to analyze that?

[00:43:47] Speaker 03:
Or does, from the way you argued the case, does the conclusion that they've met commonality requirement mean also that they satisfy typicality?

[00:43:56] Speaker 06:
Typicality and commonality frequently merge.

[00:43:59] Speaker 06:
But I do think that there is a separate argument for the fact that these claims are not typical, because it does need to be a question of the name of the... But you make that argument for commonality.

[00:44:09] Speaker 03:
That's your whole argument about commonality.

[00:44:11] Speaker 03:
You say, well, look, some of these kids could not have been identified because they're homeless, right?

[00:44:15] Speaker 03:
Isn't that the same argument?

[00:44:17] Speaker 06:
No, I think that the argument on commonality is really about whether or not their contentions are the same.

[00:44:21] Speaker 06:
And the typicality goes, I think, does look at the named plaintiffs to a certain extent and whether or not they have typical claims.

[00:44:31] Speaker 06:
Anything else?

[00:44:32] Speaker 03:
Okay.

[00:44:33] Speaker 03:
Did you have one more sentence?

[00:44:35] Speaker 06:
I was going to make one more point about Walmart and how it's been applied in other circuits.

[00:44:41] Speaker 06:
I think JMS, as well as an MD, both of them have indicated that defining the class based upon a violation of a provision of law is not sufficient.

[00:44:50] Speaker 06:
Okay.

[00:44:51] Speaker 06:
Thank you.

[00:44:51] Speaker 03:
Thank you.

[00:44:52] Speaker 03:
Case is submitted.