Blackman v. District of Columbia

185 F.R.D. 4, 1999 U.S. Dist. LEXIS 2104, 1999 WL 98361
CourtDistrict Court, District of Columbia
DecidedFebruary 12, 1999
DocketNos. Civ.A. 97-1629(PLF), Civ.A. 97-2402(PLF), Civ.A. 98-3026(PLF) and Civ.A. 98-2825(PLF)
StatusPublished
Cited by21 cases

This text of 185 F.R.D. 4 (Blackman v. District of Columbia) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackman v. District of Columbia, 185 F.R.D. 4, 1999 U.S. Dist. LEXIS 2104, 1999 WL 98361 (D.D.C. 1999).

Opinion

OPINION

FRIEDMAN, District Judge.

These consolidated cases have been before the Court multiple times in recent months on [5]*5motions for preliminary injunctions. After considering the circumstances that led plaintiffs to file the original Blackman and Curtis class action lawsuits and, of late, to file numerous individual motions for preliminary injunctions, the Court concludes that extraordinary circumstances exist to warrant appointment of Elise Baach as Special Master to facilitate resolution of each motion for preliminary injunction filed in these or related cases and, in the absence of a negotiated resolution, to provide the Court with a report and recommendation.

On May 14, 1998, the Court certified a class with two subclasses in the consolidated cases of Blackman v. District of Columbia, Civil Action No. 97-1629, and Curtis v. District of Columbia, Civil Action No. 97-2402. The first subclass, the Blackman subclass, is defined as “[a]ll persons now, and in the future, who present complaints to DCPS pursuant to Section 615(b)(6) of the [Individuals with Disabilities Education Act (‘IDEA’)] and whose requests for impartial due process hearings under Section 615(f) of the IDEA and D.C.Mun.Regs. Tit. 5, § 3021.5 are overdue according to those provisions; and their next friends.” The second subclass, the Jones subclass, is defined as “[a]ll children, now and in the future, who are entitled to have DCPS provide them with a free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determination of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS has negotiated with the child’s parent or educational advocate.” See Order of May 14,1998.

On June 3, 1998, the Court granted plaintiffs’ motion for summary judgment as to liability. In finding that defendants were liable to members of the Blackman subclass for violating the IDEA, the Court noted that the “Office of Special Education Programs [at the United States Department of Education] found that as of January 5, 1998, ‘of the 655 hearing requests that had been received, a final decision had not been issued within [the applicable 45-day deadline] in 482 cases.’ ” Opinion of June 3, 1998 at 13. The Court also cited specific instances in which children had been waiting over 100 days, in one case 177 days, to receive their due process hearings. With respect to defendants’ liability to members of the Jones subclass, the Court noted the finding of the Office of Special Education Programs that “as of January 5, 1998, DCPS was delinquent in implementing the determinations of hearing officers in 332 cases.” Id. at 14. The failure to timely implement the determinations of hearing officers and/or to timely implement agreements reached with parents is a violation- of federal law and has resulted, among other things, in significant delays both in the placement of children in appropriate educational settings and in the provision of crucial medical services, delays that have the potential to permanently harm the physical and emotional health of many young children.

Trial on the issue of class-wide remedy has been scheduled for June 8, 1999, and the parties also are engaged in mediation in a good faith effort to agree upon a mutually acceptable remedial plan. Pending resolution of the issue of remedy, however, there are children whose health, safety and well-being are threatened by the failure of DCPS to comply with its obligations under the IDEA. In some cases, plaintiffs maintain that the injury is irreparable and that immediate relief is required.

The Court has not issued a broad, class-wide preliminary injunction requiring the District to immediately comply with its statutory and regulatory obligations to all members of the class, in part because such a broad injunction would be ineffective and impractical: the District simply does not have the resources to come into immediate compliance. Instead the Court has operated on the assumption that in the most severe cases, where irreparable injury is threatened absent some action by the District, the District would not ignore its obligation to take such action even absent resolution of the claims of the class as a whole.

Unfortunately, the Court’s confidence appears to have been misplaced. Over the past six weeks, four motions for preliminary injunction have been filed on behalf of a total [6]*6of thirty-five children; three of those motions were filed within the space of two weeks in December. See Watkins v. Ackerman, Civil Action No. 98-3081; Barton-Smith v. District of Columbia, Civil Action No. 98-3026; Wilson v. Ackerman, Civil Action No. 98-2825; Blackman v. District of Columbia, Civil Action No. 97-1629.1 In three of the four instances, the response of the District has not provided the Court with any faith that the District appreciates the magnitude of the problem and the dangers posed by their delay and recalcitrance.

In each case, plaintiffs’ counsel who filed the motion has represented to the Court that she or he tried to negotiate a solution with the District of Columbia prior to filing a motion for preliminary injunction. For instance, in Wilson v. Ackerman, Civil Action No. 98-2825, plaintiffs filed their complaint on November 20, 1998. Plaintiffs’ counsel indicated when she filed the complaint that she probably would file a motion for preliminary injunction. Prior to filing the motion, however, she attempted to speak with counsel for defendants to resolve the issues related to those plaintiffs. Plaintiffs’ counsel filed a motion for preliminary injunction on behalf of four plaintiffs on December 23,1998, a full month after the complaint was filed and after she was unable to get the District to provide relief for plaintiffs. More than one plaintiffs’ counsel also have asserted that when they attempted to contact DCPS prior to filing a motion for a preliminary injunction, they could not even get the courtesy of a return phone call.

Even after motions for preliminary injunction have been filed, the District has remained unresponsive both to plaintiffs and to the Court. In one case, the District scheduled but failed to show up for a meeting with plaintiffs’ counsel to discuss the possibility of resolving the pending motion for preliminary injunction. In another case, defendants’ counsel failed to timely file an opposition to the motion for preliminary injunction. The opposition that finally was filed, six days late, was unsupported by any affidavits or documentary evidence. Defendants’ counsel requested leave to late file affidavits in support of the opposition, but in spite of the fact that the Court granted leave, the affidavits never appeared. Moreover, in each of the three cases that now have been resolved, even after the filing of a motion for preliminary injunction, the Court has given defendants every opportunity to resolve plaintiffs’ motions. In each case, after conducting a hearing on plaintiffs’ motion, the Court has either, reserved ruling or continued the hearing in order to give defendants the chance to meet with plaintiffs. In only one instance did the District avail itself of that opportunity.2

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Bluebook (online)
185 F.R.D. 4, 1999 U.S. Dist. LEXIS 2104, 1999 WL 98361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackman-v-district-of-columbia-dcd-1999.