The U.S. Court of Appeals for the D.C. Circuit reversed the certification of a class in a sprawling lawsuit against the District of Columbia over the provision of special education services, a setback for the plaintiffs more than a year after a judge found the city liable.
In the April 12 ruling, the appeals court vacated the liability finding, ordering U.S. District Chief Judge Royce Lamberth to reconsider class certification under the U.S. Supreme Court's decision in 2011's Wal-Mart Stores Inc. v. Dukes. In Wal-Mart, the high court said a class had to suffer common harm from a policy or practice that affected each member. The three-judge appellate panel found that the plaintiffs in the special education case failed to meet that "commonality" standard.
Writing for the panel, Judge Judith Rogers said the D.C. Circuit decision did not rule out the possibility of a class or set of subclasses, a solution that the plaintiffs previously suggested. But as the class currently stood, she said, Lamberth failed to identify a "single or uniform policy or practice that bridges all their claims," except that the class members were all allegedly denied an appropriate education under federal law.
Bruce Terris of Washington's Terris, Pravlik & Millian, lead counsel for the plaintiffs, said he expected the ruling to extend litigation for at least another few years. He said that if Lamberth certifies subclasses, there's a good chance the city will appeal again.
As courts across the country figure out how to apply Wal-Mart in practice, "you'll never see a class action for years now where there isn't going to be a ferocious argument about class certification," Terris said. "In many ways it's too bad."
Attorney General Irvin Nathan said in a statement he was pleased with the ruling and looked "forward to returning to the District Court and presenting our case on the remaining issues." When it came to special education services, he said, the city "is committed to addressing this need and believes it has made substantial progress in this area." The city's solicitor general, Todd Kim, argued the case.
The case in the D.C. Circuit involved the provision of special education services for preschool students under the federal Individuals with Disabilities Education Act (IDEA). The plaintiffs sued the city in 2005, accusing officials of failing to identify and evaluate preschool students in need of special educations services and then failing to provide those services. Lamberth certified the class in 2006.
Following a bench trial in 2011, Lamberth entered judgment in favor of the plaintiffs. The case also made headlines that year after Lamberth accused city attorneys of committing a discovery violation "so extreme as to be literally unheard of."
After the Wal-Mart decision, the plaintiffs responded to the city's motion to decertify the class by proposing four subclasses: children not identified for services; children who weren't provided with a timely evaluation; children who didn't receive a timely decision about their eligibility for services; and children who weren't provided with a "smooth and effective" transition into preschool programs. Lamberth denied the city's motion and didn't reach the issue of the subclasses.
Rogers said the appeals court would leave it up to Lamberth to decide whether he could certify the subclasses under Wal-Mart. However, she pointed to a 2012 decision from the U.S. Court of Appeals for the Fifth Circuit that she said suggested subclasses might solve the "commonality" issue.
Chief Judge Merrick Garland and Senior Judge Harry Edwards also heard the case. In a concurring opinion, Edwards wrote that Wal-Mart would not prevent a district judge from certifying a class or subclass in a situation where a single policy or practice by the city "effectively forecloses disabled children in that class or subclass from pursuing IDEA benefits" – that is, if city officials decided not to adopt a policy to provide the services required under federal law. Edwards wrote that the city's argument that Wal-Mart might pose a problem to class certification because each child's situation was unique was "patently wrong."
"An illegal policy or practice affecting all class members would provide the 'glue' necessary to litigate otherwise individualized claims as a class," Edwards said.