In re: District of Columbia

Filing

OPINION filed [1559613] (Pages: 11) for the Court by Judge Wilkins. [14-8001]

USCA Case #14-8001

Document #1559613

Filed: 06/26/2015

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2015

Decided June 26, 2015

No. 14-8001
IN RE: DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
PETITIONER

On Petition for Permission to Appeal from an Order of
the United States District Court for the District of Columbia
(No. 1:10-cv-02250)

Loren L. AliKhan, Deputy Solicitor General, Office of the
Attorney General for the District of Columbia, argued the
cause for petitioner. With her on the briefs were Eugene A.
Adams, Interim Attorney General, and Todd S. Kim, Solicitor
General.
Marjorie L. Rifkin argued the cause for respondents.
With her on the brief were Jennifer R. Lav, Lindsay A. Niles,
Kelly R. Bagby, Barbara S. Wahl, Brian D. Schneider, and
Alison Lima Andersen.
Iris Y. Gonzalez entered an
appearance.
David A. Reiser, appointed by the court, was on the brief
for amici curiae The Legal Aid Society of the District of
Columbia, et al. in support of respondents.
Before: KAVANAUGH, MILLETT, and WILKINS, Circuit
Judges.

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Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: This Petition is for permission
to file an interlocutory appeal challenging the District Court’s
decision to certify a class. The underlying suit alleges that the
District of Columbia (the “District”) does not provide
adequate opportunity for community-based care to the
District’s Medicaid beneficiaries who are currently receiving
long-term care in nursing homes.
The grounds on which this Court will grant permission to
file an interlocutory appeal under Federal Rule of Civil
Procedure 23(f) are well established. See In re Lorazepam &
Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C. Cir.
2002). This Petition invokes only one of those grounds,
submitting that the class certification was “manifestly
erroneous.” That makes for an inherently uphill battle for the
District, given that “manifest error” is a “high bar,” and this
Court has never granted a petition on that basis alone. In re
Johnson, 760 F.3d 66, 72 (D.C. Cir. 2014). Manifest error
requires a showing that the District Court failed to apply the
correct legal standard, reached a decision “squarely
foreclose[d]” by precedent, id., or otherwise committed an
error “that is plain and indisputable, and that amounts to a
complete disregard of the controlling law or the credible
evidence in the record.” BLACK’S LAW DICTIONARY 680
(10th ed. 2014) (defining manifest error).
Although the District Court itself noted that its critical
legal conclusion was not “free from doubt,” we agree that it
was not squarely foreclosed by the applicable precedents.
The District Court’s decision to certify may or may not have
been an error. But we cannot say that it was a “manifest
error,” which is the standard for us in this interlocutory

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appellate posture under Rule 23(f). Accordingly, we deny the
Petition to permit an interlocutory appeal and therefore
decline to reach the merits of the District’s challenge to the
class certification.
I.
The named Plaintiffs in the underlying case are citizens
of the District who have been receiving Medicaid-funded
long-term care in nursing homes and who seek access to
community-based alternatives. They brought this Olmstead
action against the District, alleging it had failed to comply
with its obligations under federal law—specifically, Title II of
the Americans with Disabilities Act, and Section 504 of the
Rehabilitation Act—that require it to “provide services to
people with disabilities in the most integrated setting
appropriate to their needs.” Compl. at 2; see also Olmstead v.
L.C., 527 U.S. 581 (1999) (holding that unjustified
segregation constitutes discrimination prohibited by the
Americans with Disabilities Act). In their Complaint,
Plaintiffs claimed to represent “a class of similarly-situated
individuals with physical disabilities who desperately desire
the freedom to live in their community but instead remain
institutionalized in nursing facilities against their will.”
Compl. at 3. The District Court denied the District’s motion
to dismiss the substantive claims. Day v. District of
Columbia, 894 F. Supp. 2d 1 (D.D.C. 2012).
Following amendments to the Complaint and various
interim rulings, the District Court denied the District’s
(renewed) motion to dismiss and granted Plaintiffs’ (second)
motion for class certification. Thorpe v. District of Columbia,
303 F.R.D. 120 (D.D.C. 2014). The District filed this Petition
with our Court for leave under Rule 23(f) to appeal the

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District Court’s class certification order. See FED. R. CIV. P.
23(f).
II.
In prior cases, we have identified three grounds
warranting Rule 23(f) review in this Court:
(1) when a “questionable” class certification decision
creates a “death-knell situation” for either party;
(2) when the certification decision presents “an unsettled
and fundamental issue of law relating to class
actions . . . that is likely to evade end-of-the-case
review”; and
(3) when the
erroneous.

certification

decision

is

manifestly

In re Veneman, 309 F.3d 789, 794 (D.C. Cir. 2002) (quoting
In re Lorazepam, 289 F.3d at 105); see also In re Johnson,
760 F.3d at 71. The standard also allows for the possibility
that interlocutory review will be appropriate in “special
circumstances” beyond the three stated reasons. In re
Lorazepam, 289 F.3d at 106.
This Petition, however, invokes only the “manifestly
erroneous prong.” In Johnson, we stated:
This is a difficult standard to meet; we have never before
granted Rule 23(f) review on the basis of a manifest error
and other circuits, too, have indicated there is a high bar
for doing so. See, e.g., Chamberlan v. Ford Motor Co.,
402 F.3d 952, 962 (9th Cir. 2005) (“It is difficult to show
that a class certification order is manifestly erroneous

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unless the district court applies an incorrect Rule 23
standard or ignores 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
existing precedent.”) (citations omitted).
In re Johnson, 760 F.3d at 72.
A.
The thrust of the District’s challenge is its argument that
Plaintiffs did not satisfy the “commonality” requirement for
class certification. See FED R. CIV. P. 23(a)(2). The District
contends that the Supreme Court’s decision in Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and this Court’s
decision in DL v. District of Columbia, 713 F.3d 120 (D.C.
Cir. 2013), preclude the necessary finding of commonality in
this case.
In Wal-Mart, the Supreme Court addressed the
commonality requirement as applied to a putative class of 1.5
million female employees in a suit alleging gender
discrimination in pay and promotion decisions. 131 S. Ct. at
2547. The Court held that there was no commonality because
plaintiffs “wish[ed] to sue about literally millions of
employment decisions at once.” Id. at 2552. It explained:
“Without 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. (emphasis in original).
Our Court extensively discussed and applied Wal-Mart in
DL, which the parties (and we) agree is this Circuit’s most

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important precedent bearing on the certification challenged
here. Prior to the Supreme Court decision in Wal-Mart, the
district court hearing DL had certified a class challenging the
District’s “Child Find” system under the Individuals with
Disabilities Education Act. See DL, 713 F.3d at 121. In
denying a post-Wal-Mart motion to decertify the Class, the
district court found that all members of the certified class had
“suffered the same injury: denial of their statutory right to a
free appropriate public education.” DL v. District of
Columbia, 277 F.R.D. 38, 45 (D.D.C. 2011). We reversed the
certification, observing that Wal-Mart had “changed the
landscape” of Rule 23(a)(2). DL, 713 F.3d at 126. The
Supreme Court’s new guidance was that it is not enough for
“class members [to] ‘have all suffered a violation of the same
provision of law.’” Id. (quoting Wal-Mart, 131 S.Ct. at
2551). Instead, the common contention 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.” Wal-Mart, 131 S. Ct. at 2551.
In this Petition, the District tells us that the District Court
erred by failing to “identify any policy or practice common to
the claims of every member of the class” and that it failed to
reconcile its decision with the guidance of Wal-Mart and
DL—that is, the guidance that Rule 23(a)(2) requires more
than a showing that class members have suffered violations of
the same provision of law.
But the District Court did find something more. In a
paragraph titled “Commonality” in the operative complaint,
Plaintiffs spelled out seven bulleted questions of law or fact
they asserted were common throughout the class. 3d Am.
Compl. ¶ 156. The District Court expressly referenced this
language and grappled with it, observing that although some

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of the enumerated questions did not meet the Wal-Mart/DL
standard, at least two were, in the District Court’s view,
capable of class-wide resolution and therefore satisfied the
standard. Thorpe, 303 F.R.D. at 146-47 & nn.58-59. The
District Court explained in a footnote:
To prevail on the merits and obtain the relief they
seek, plaintiffs will have to prove concrete systemic
deficiencies. For example, does the District in fact
“fail[ ] to offer sufficient discharge planning” or
“fail[ ] to inform and provide [nursing facility
residents] with meaningful choices of communitybased long-term care alternatives to nursing facilities.”
(3d Am. Compl.¶ 156.)
Thorpe, 303 F.R.D. at 146 n.58. This statement by the
District Court is important to our analysis here, because the
Supreme Court explained in Wal-Mart that “for purposes of
Rule 23(a)(2) even a single common question will do.” 131
S. Ct. at 2556 (internal quotation marks omitted). It was not
manifest error to conclude, at this procedural juncture, that
those two alleged deficiencies could represent the sort of
systemic failure that might constitute a policy or practice
affecting all members of the class in the manner Wal-Mart
requires for certification. See DL, 713 F.3d at 126, 128.
In its briefs, the District did not articulate why these two
questions are not common questions.1 At oral argument, its
counsel urged us to read footnote 58, quoted above, as a
1

The District also suggested in its briefing that DL could be read to
require subclasses (instead of a single class) in this case. But as we
have explained, it was not manifest error for the District Court to
conclude, at this juncture, that at least two of the deficiencies
alleged by plaintiffs are susceptible to class-wide treatment.

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statement only of what Plaintiffs would have to prove on
causation to prevail on the merits. The District would have us
look exclusively to the body text of the opinion in which the
District Court makes an affirmative statement of common
questions: “(1) are there deficiencies in the District’s existing
system of transition assistance? (2) if so, what are those
deficiencies? and (3) are the proven deficiencies causing
unnecessary segregation?” Thorpe, 303 F.R.D. at 146
(footnote omitted).
Indeed, if the quoted body text were all the District Court
had to say about commonality, we might well agree with the
District that class certification was defective in view of WalMart and DL.
But footnote 58 modifies the second
question—the question of “what are those deficiencies”—and
it points to language in the operative complaint alleging two
specific deficiencies it concludes are common. Although
legal writing mavens may debate the merit and utility of
footnotes, we know of no requirement that a District Court’s
statement of a common question appear in the body text of an
opinion.2
We have some doubts in light of DL about the District
Court’s conclusion—but the District Court itself did, too.
Thorpe, 303 F.R.D. at 148 (“While this question is not free
2

A former chief judge of this Court came to the considered
conclusion that “footnotes in judicial opinions [are] an
abomination.” Abner J. Mikva, Goodbye to Footnotes, 56 U.
COLO. L. REV. 647, 647 (1985). Other distinguished jurists have
defended them. See, e.g., Edward R. Becker, In Praise of
Footnotes, 74 WASH. U. L. Q. 1, 1 (1996) (“[T]he judicious use of
footnotes allows judges to communicate most effectively with their
diverse audiences.”). We need not settle that dispute to recognize
that the footnote remains part of the District Court’s explanation in
this case. See Mikva, supra, at 653 n.4.

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from doubt, the Court is persuaded that the concept of a
system of transition assistance is sufficiently definite to
constitute a practice that could violate Olmstead’s integration
mandate, if the lack of transition services contributes to the
lack of placements of residents into community-based
services.”). Moreover, the District Court noted that “if the
District is ultimately able to demonstrate that its Olmstead
Plan is effective, it may be that it will be appropriate to revisit
certification.” Id. at 138 n.41. And so at this interlocutory
stage, we go no further than observing that the determinations
this District Court reached were not manifestly erroneous—
that is, the determinations that Plaintiffs adequately alleged
that the class has suffered a uniform deprivation, and that
such deprivation could be remedied by a single injunction.
The District argues that “Rule 23(f) review is additionally
warranted to prevent a tremendous waste of judicial and party
resources in continuing proceedings.” But the Rule 23(f)
grounds for review we have identified already factor in this
consideration by providing for interlocutory review where the
decision was “manifestly erroneous,” thereby otherwise
resulting in certain waste. See In re Lorazepam, 289 F.3d at
105 (justifying “manifestly erroneous” Rule 23(f) ground for
review “to avoid a lengthy and costly trial that is for naught
once the final judgment is appealed”).
To make express the limited reach of our conclusion in
this opinion, however, we hold only that the District Court did
not manifestly err, and we offer no suggestion (beyond
observing it would be a tough question) about whether the
certification would survive review under the standard that
ultimately applies to appeal of a final judgment by the District
Court. To obtain permission for interlocutory appeal of a
class certification on the manifest error prong of In re
Lorazepam, the petitioning party must show not merely that

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the District Court’s decision was wrong, but that the error was
plain and indisputable. The District failed to meet this
exacting standard.
B.
The District’s Petition raised two other claims, neither of
which merits substantial separate treatment from the central
challenge to post-Wal-Mart commonality discussed above.
Accordingly, we address these additional claims only briefly.
First, the District challenged Rule 23(a)(3) typicality of
the class representatives, but its argument was simply that
because the harm identified is not something that can be
common between any two different individuals, no plaintiff
can be typical of the certified class. See FED. R. CIV. P.
23(a)(3). This is just a rehash of commonality by another
name—indeed, the District had not a word to say about any of
the surviving individual named plaintiffs in this case.
Second, the District challenged the appropriateness of
certification under Rule 23(b)(2), contending that the relief
sought is individualized and there is no common harm. See
FED. R. CIV. P. 23(b)(2) (requiring that “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”). Although invoking a distinct legal
requirement for sustaining a class action, the District’s
argument here is again the same as for commonality. It
restates the question as whether the District’s policies that
allegedly fail to provide a gateway to community-based care
constitute an independent civil rights violation, or whether the
unique totality of barriers to community transition for each
individual class member makes grouping of the claims

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inappropriate. But Olmstead held there is a common civil
right to non-segregation at stake. And Rule 23(b)(2) was
intended for civil rights cases. See 7AA CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE & PROCEDURE § 1776 (3d ed. 2005) (stating that a
Rule 23(b)(2) class suit “is a uniquely appropriate procedure
in civil-rights cases, which generally involve an allegation of
discrimination against a group as well as the violation of
rights of particular individuals”); see also Parsons v. Ryan,
754 F.3d 657, 686 (9th Cir. 2014) (quoting 7AA FEDERAL
PRACTICE & PROCEDURE § 1776). In Wal-Mart itself, the
Court quoted Amchem’s observation that “civil rights cases
against parties charged with unlawful, class-based
discrimination are prime examples of what (b)(2) is meant to
capture.” 131 S. Ct. at 2557 (quoting Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 614 (1997)) (internal quotation marks
omitted).
Thus, we do not find “manifest error” in the District
Court’s treatment of the challenges to class certification under
Rule 23(a)(3) or Rule 23(b)(2).
III.
We conclude that the District has not met its burden
under the grounds for review it invoked to show “manifest
error” by the District Court. Accordingly, we deny the
Petition to permit an appeal of class certification and we do
not reach the merits of the District’s substantive claims of
error.
So ordered.

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