UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KENNEDY DAVIS,
Plaintiff,
v. Case No. 1:24-cv-01312 (TNM)
UNITED STATES PAROLE COMMISSION, et al.,
Defendants.
MEMORANDUM ORDER
Kennedy Davis is on parole. He allegedly faces systemic disability discrimination from
the two federal agencies that supervise him. And he insists he is not alone. 1 So he moves for
class certification to litigate on behalf of other disabled individuals on parole and supervised
release who also suffer from discrimination. Defendants—the U.S. Parole Commission, the
Court Services and Offender Supervision Agency, and the heads of those agencies in their
official capacities (collectively, “the Government”)—oppose class certification. They say the
class does not satisfy some prerequisites: members do not share a common injury, and Davis’s
claim is not typical for the class. The Court disagrees. The supervision program allegedly
harbors a system-wide flaw that injures the entire class—Davis included—and can be remedied
through the same injunctive relief. So the Court will certify Davis’s proposed class and appoint
Davis’s lawyers as class counsel.
1 William Mathis was previously a named Plaintiff but passed away in mid-2024. ECF No. 34. Counsel voluntarily dismissed his claim, id., leaving Davis as the sole named Plaintiff. I.
The Court begins by summarizing the supervision system for offenders in Washington,
D.C., who were convicted under D.C. law. Parole and supervised release are both forms of post-
incarceration supervision. Parole applies to offenses committed before August 5, 2000, while
supervised release applies to any crimes committed after that date. See Sentencing Reform
Amendment Act of 2000, D.C. Law 13-302.
Two federal agencies work together to supervise D.C. Code offenders. The U.S. Parole
Commission is the lead agency and has major decision-making authority. See National Capital
Revitalization and Self-Government Improvement Act of 1997 (“Revitalization Act”), Pub. L.
No. 105-33, § 11231, 111 Stat. 712, 745; 28 C.F.R. § 2.70(a) (parole); id. § 2.200(a) (supervised
release). It sets general supervision conditions and decides whether an offender’s term of parole
or supervised release should be continued, revoked, or terminated. See 28 C.F.R. § 2.70(a)–(b);
id. § 2.200(a)–(b).
The Court Services and Offender Supervision Agency (“CSOSA”) implements the
Commission’s decisions. Its officers, known as CSOs, provide the day-to-day “supervision . . .
for offenders on probation, parole, and supervised release pursuant to the District of Columbia
Code.” Revitalization Act § 11233(c)(1) (codified at D.C. Code § 24-133(c)(1)). They ensure
offenders comply with their conditions, set the location and frequency of check-ins, and initially
assess supervision violations. Compl. ¶ 15, ECF No. 1. CSOs respond to non-compliance with
“graduated sanctions.” Id. Those sanctions start with increased supervision requirements. Id.
But they can escalate to an Alleged Violation Report—a recommendation that the Commission
issue an arrest warrant and begin revocation proceedings. Id.
2 The Commission and CSOSA also work together to decide when an offender should have
his supervision revoked and be reincarcerated. Sometimes revocation and reincarceration are
triggered by a new criminal offense. But “technical violations” can trigger discipline too.
Technical violations happen when an offender violates a condition of release—like missing an
appointment with a CSO, failing to get a job, or skipping a drug test. CSOSA FY2024 Budget
Justification, ECF No. 3-12, at 35. Though technical violations are typically not premised on
criminal conduct, they can still lead to jailtime. Id.
According to the Complaint, offenders with disabilities are especially susceptible to
technical violations. Compl. ¶¶ 25, 28. Physical disabilities can impede mobility, making it
difficult for an offender to travel to a mandatory check-in with his CSO. Id. ¶ 26. Chronic
health conditions present similar difficulties and might require an offender to balance CSO
check-ins with medical appointments or hospitalization. Id. Then there are mental, intellectual,
and developmental disabilities that may frustrate an offender’s ability to grasp certain conditions
or participate in required programs. Id. ¶ 27. Given these obstacles, Davis alleges that “people
with disabilities are more likely to be found in violation of terms of supervision” than their non-
disabled counterparts. Id. ¶ 28.
Davis is a 48-year-old man on lifetime parole because of his convictions for Second-
Degree Murder and Possession of a Firearm During a Crime of Violence. Mathis v. U.S. Parole
Comm’n, 24-cv-01312, 2024 WL 4056568, at *3 (D.D.C. Sept. 5, 2024). Davis experiences
chronic pain stemming from third-degree burns on his bones and ribs—injuries that have
required multiple rounds of surgery. K. Davis Decl., ECF No. 40-15, ¶¶ 5–6. Davis also has
mental health conditions, including depression, anxiety, and PTSD, for which he has received
mental health treatment. Id. ¶¶ 7–9. His last set of parole conditions required him to report to
3 his CSO as requested, get drug tested in-person twice a week, and report every address change.
Id. ¶ 11.
Davis’s disabilities have impeded his ability to succeed on supervision. Id. ¶ 17. His
burns limit his mobility, which makes it harder for him to travel to drug tests and CSO check-ins.
Id. ¶¶ 18–21. And at times, his medical needs have been pitted against his supervision
conditions. For instance, when he was first hospitalized for his burns, he left the hospital against
his doctor’s orders so he could check in with his CSO as required. Id. ¶ 5.
Davis’s mental health issues also present an obstacle, as shown by one incident in 2023
where he failed to check-in with his CSO by phone. Id. ¶¶ 34–38. When Davis was placed on
supervision, he “did not have [his] own phone.” Id. ¶ 34. So his re-entry advocate at University
Legal Services (“ULS,” a community-based organization that assists people with disabilities)
gave him one. Id. ¶ 34. But ULS forgot to put minutes on it. Id. When Davis realized the
oversight, he “got very anxious and scared” because he knew he had to check in. Id. ¶ 35. So
instead of rationally thinking through the situation and contacting his CSO by another means, he
kept trying to reach ULS because they were “the people [he] trust[ed].” Id. ¶¶ 35–36.
Davis eventually reached ULS, but by then it was too late. Citing his technical violation
of failing to check-in, Davis’s CSO submitted a violation report and pursued revocation. Compl.
¶ 111; K. Davis Decl. ¶ 38. He was arrested in August 2023, which caused him to miss a
scheduled surgery for his burns. Compl. ¶¶ 111–13; K. Davis Decl. ¶ 40. And because of his
technical violation, the Commission imposed a 12-month reincarceration sentence. Compl.
¶ 114; K. Davis Decl. ¶¶ 42–44.
While serving his sentence, Davis filed this suit. See Compl. ¶ 114. His one-count
Complaint alleges a violation of the Rehabilitation Act, 29 U.S.C. § 794. Compl. at 30. He
4 challenges the Government’s ongoing and system-wide failure to assess “disabilities or make any
reasonable accommodations at any point during the course of . . . supervision.” Id. ¶ 152. On
top of this, Davis says the Government lacks any foundational system or policy for disability
assessment and accommodation. Id. ¶ 149. So even if a disabled offender wants to request
accommodation, there is no “formal process” to do so. Id. Davis alleges these failures strip him
and the proposed class “of meaningful access to the benefits of supervision due to their
disabilities.” Id. ¶ 153.
He requested, among other things, a preliminary injunction. Mathis, 2024 WL 4056568,
at *1. The Court granted Davis’s request, finding that he is likely to succeed on the merits. Id. at
*4–*12. The Court concluded the Government was likely injuring Davis by requiring him “to
navigate supervision without offering reasonable accommodations.” Id. at *5. And it explained
that this “obstacle[] to equal access” is an injury that exists independently of any downstream
consequences such as revocation of supervision or reincarceration. Id. So the Court granted a
preliminary injunction and ordered the Government to comply with the Rehabilitation Act with
respect to Davis. See id. at *14. But it denied Davis’s request to extend the injunction to cover
similarly situated offenders. Id.
Davis now moves for class certification, hoping to expand his case to cover other
disabled offenders. Renewed Mot. to Cert. Class (“Mot. to Cert.”), ECF No. 40. 2 He proposes a
class consisting of
all people with a disability who are on or will be on parole or supervised release in the
District of Columbia under the Commission’s and CSOSA’s supervision, and who need
2 The Court denied without prejudice a prior motion for class certification from Davis because he failed to comply with Local Civil Rule 7(m) and consult the Government before filing it. ECF No. 33.
5 accommodations in order to have an equal opportunity to succeed on parole or supervised
release.
Id. at 1.
The Government opposes certification and identifies a litany of supposed deficiencies
with the proposed class. Defs.’ Opp’n to Class Cert. (“Opp’n”), ECF No. 42. It says the
proposed class does not share a common legal or factual foundation because the legal and factual
underpinnings vary between the different stages and types of supervision. Id. at 7–12. And it
argues Davis’s situation is atypical because his sentence of lifetime parole makes his claim
distinguishable from the class’s claims. Id. at 12–13. It does, however, concede that it lacks a
“written policy requiring assessment and accommodation of disabilities.” Opp’n at 10. And it
does not have any “formal process through which an individual may seek such
accommodations.” Answer, ECF No. 38, ¶ 149.
With this background in mind, the Court now turns to Davis’s motion for class
certification.
II.
Class actions are “an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348
(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). Under the right
circumstances, a class representative may litigate for others who “possess the same interest and
suffer the same injury.” Id. at 348–49 (cleaned up). The party seeking certification bears the
burden of “affirmatively demonstrat[ing] his compliance” with five requirements in Rule 23 of
the Federal Rules of Civil Procedure. Id. at 350.
6 Rule 23(a) gives the first four requirements: (1) numerosity, meaning “the class is so
numerous that joinder of all members is impracticable”; (2) commonality, meaning “there are
questions of law or fact common to the class”; (3) typicality, meaning “the claims . . . of the
representative parties are typical of the claims . . . of the class”; and (4) adequacy, meaning “the
representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(1)–(4).
Rule 23(b) provides the fifth requirement, though plaintiffs can satisfy it in various ways.
Davis picks Rule 23(b)(2), which applies when the opposing party “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.” Fed. R. Civ. P. 23(b)(2).
In evaluating proposed classes, courts may need to “touch[] aspects of the merits.” Wal-
Mart, 564 U.S. at 351. Still, the ultimate question is whether the proposed class satisfies Rule
23, not “whether the . . . plaintiffs have stated a cause of action or will prevail on the merits.”
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). If a court certifies a class, it must also
decide who should represent the class. Fed. R. Civ. P. 23(g).
III.
The Government disputes commonality, typicality, and the Rule 23(b)(2) requirement.
But Davis prevails. The Court is satisfied that Davis and the proposed class members allege a
common harm stemming from a common source—discrimination from the Government’s
systemic failure to assess and accommodate disabilities. The Court is also unpersuaded by the
Government’s assertion that Davis’s claim lacks typicality. On this front, the Government
misapprehends the harm. Its arguments focus on the possible downstream effects of
7 discrimination, but the discrimination itself is the harm. The proposed class also satisfies Rule
23(b) because Davis alleges a harm and seeks a remedy that apply uniformly across the class.
The Court evaluates in turn each of the four requirements in Rule 23(a) and the
requirement in Rule 23(b)(2).
A.
Start with numerosity. Proposed classes must be “so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no brightline rule on the necessary
number of members, but courts have approximated forty as a safe baseline. Marcus v. BMW of
N. Am., LLC, 687 F.3d 583, 595 (3d Cir. 2012); see also Howard v. Liquidity Servs. Inc., 322
F.R.D. 103, 117 (D.D.C. 2017). Courts seldom need to calculate an exact class size though, see
Marcus, 687 F.3d at 596, because precision is generally unnecessary “as long as the plaintiffs
provide a reasonable basis for their estimate.” In re Lorazepam & Clorazepate Antitrust Litig.,
202 F.R.D. 12, 26 (D.D.C. 2001).
The Government does not dispute numerosity, and its own calculations show the
proposed class easily satisfies the requirement. CSOSA estimates that between January 2022
and May 2023, at least 484 offenders under supervision had a mental disability. See P. Davis
Decl. Ex. 1 (CSOSA FOIA Response) ECF 40-2, at 6. But the Rehabilitation Act applies equally
to mental and physical disabilities. 29 U.S.C. § 705(20)(A). So that number is likely highly
underinclusive because it does not account for individuals with physical disabilities. Thus,
CSOSA’s estimates provide a reasonable evidentiary basis to conclude the class will encompass
hundreds of members or more. Applying “common sense” to this evidence, Marcus, 687 F.3d at
596, the Court finds that joining hundreds of plaintiffs is impracticable. So the proposed class is
sufficiently numerous.
8 B.
Next up is commonality. Commonality requires that each class member suffer from the
same harm. Wal-Mart, 564 U.S. at 350. As with many legal questions, choosing the right level
of generality for the comparison can be tricky. The Supreme Court has cautioned that suffering
the same harm means something more than “merely . . . suffer[ing] a violation of the same
provision of law.” Id. Instead, the class’s joint injury must spring from a “common
contention”—a shared root cause, not just a shared outcome. Id. By ascertaining the “truth or
falsity” of that contention, a court will necessarily “resolve an issue that is central to the validity
of each one of the claims in one stroke.” Id. In other words, courts must determine whether
addressing an injury’s root cause for one class member will also fix the problem for other
members.
To illustrate this concept, consider a failed attempt to certify a class in an Individuals
with Disabilities Education Act (IDEA) case. In DL v. District of Columbia, 713 F.3d 120 (D.C.
Cir. 2013), the proposed class encompassed schoolchildren who were each allegedly harmed by
a school district’s improper IDEA implementation. Id. at 122. But which section of the IDEA
the school district violated changed between children. Id. at 127–28. Consequently, the specific
“policies and practices” at issue also varied. Id. at 127. Even though the entire class alleged
some violation of the IDEA, the claims lacked commonality because resolving one child’s claim
would not resolve that of the next child. See id. So the proposed class failed because there was
“no single or uniform policy or practice that bridge[d]” all the claims. Id. at 127. Put another
way, there were no “common answers apt to drive the resolution of the litigation.” Wal-Mart,
564 U.S. at 350 (quoting Richard Nagareda, Class Certification in the Age of Aggregate Proof,
9 84 N.Y.U. L. Rev. 97, 132 (2009)). The crux of commonality is thus whether a court can
uniformly remedy the harm “in one stroke” for all class members. Id.
1.
According to Davis, all class members suffer the same harm for the same reason: the
Government is systemically violating the Rehabilitation Act by failing to assess “disabilities or
make any reasonable accommodations at any point during the course of . . . supervision.”
Compl. ¶ 152.
In response, the Government contends the class will rely on multiple legal theories and
fact patterns, much like the failed class in DL. Opp’n at 11. It says the class will inevitably
allege “injuries at several distinct phases of the supervision process as carried out by two
different defendants.” Id. at 9. For example, one plaintiff may allege a failure to accommodate
when the Commission imposes general conditions of supervision. But another may identify a
failure to accommodate when CSOSA sets specific conditions. So, the Government reasons,
these claims are each “based on a separate and distinct legal theory” because they happen at
different stages with different agencies. Id. at 11.
But the Government’s divide-and-conquer approach will not do. Davis is challenging the
“systematic failure to assess” and accommodate disabilities in a program the agencies jointly
administer. Compl. ¶ 147 (emphasis added). He alleges that the Commission and CSOSA are
both failing to act at every phase of supervision despite their statutory obligation to
accommodate offenders’ disabilities. See Compl. ¶ 152. And “in a civil-rights suit” such as this,
“commonality is satisfied where the lawsuit challenges a system-wide practice or policy that
affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.
2001) abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504–05 (2005); see
10 also DL v. District of Columbia, 302 F.R.D. 1, 13 (D.D.C. 2013), (“[C]ourts have properly
certified classes challenging uniform practices of failure [to enact policies] or inaction.”), aff’d,
860 F.3d 713 (D.C. Cir. 2017).
So when properly viewed through this lens of a multi-agency system-wide failure to
accommodate, the facts and law will not meaningfully vary between class members. The nature
and source of the harm does not turn on the stage or agency; it comes from a ubiquitous
deficiency that permeates the entire supervision system, harming all class members at every turn.
In other words, a “uniform policy or practice . . . bridges” the class’s claims. DL, 713 F.3d at
127. Thus, the claims are positioned for resolution “in one stroke.” Wal-Mart, 564 U.S. at 350.
2.
The Government’s attempt to distinguish parole and supervised release fares no better.
Opp’n at 9. Davis asserts without rebuttal that the Government “use[s] the same system to
establish supervision requirements for every person” on both parole and supervised release.
Mot. for Cert. at 4 (cleaned up). While the Government announces there are “legally significant”
distinctions between the programs, it offers no concrete examples. See Opp’n at 9–10.
Perhaps it lacks relevant illustrations because there is, in fact, no difference between the
general conditions for parole and supervised released. Compare 28 C.F.R. § 2.204(a)(1) (general
supervised release conditions) and 28 C.F.R. § 2.85(a)(1) (general parole conditions, which
cross-reference to the general supervised release conditions). Nor does CSOSA distinguish
between parole and supervised release when creating specific supervision conditions, known as
“Prescriptive Supervision Plans.” See CSOSA Operations Manual (2018), ECF No. 40-9, at
PDF pp. 116–25. So there is no reason to conclude the facts or law underpinning the class’s
allegation change when considering parole versus supervised release. If the programs have some
11 unidentified minor differences, those distinctions do not sever the common thread that binds
together the class’s claims.
3.
Next, the Government says there is no commonality because “it is a certainty that many
members of the proposed class will have no injury to allege.” Opp’n at 10. It insists that despite
its lack of a blanket policy requiring accommodation, it does provide individually tailored
accommodations both “in setting conditions of supervision and in evaluating alleged violations.”
Id. So while individual plaintiffs may feel their disabilities were not properly accommodated,
those personalized claims do “not exist” on a class-wide basis. Id.
The Government’s argument puts the cart before the horse and focuses on “whether the
. . . plaintiffs . . . will prevail on the merits.” Eisen, 417 U.S. at 178 (cleaned up). The proposed
class allegedly suffers uniform harm from a system-wide failure to assess and accommodate
disabilities, not a deficiency linked to the specific accommodations for any single plaintiff. If the
Government does in fact have a cogent system of accommodating disabilities that it has applied
to “many” plaintiffs, Opp’n at 10, Davis’s claim to the contrary will probably ultimately fail.
And if it fails, the entire class is poised to fail together. So a “common answer[]” is still “apt to
drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (cleaned up).
* * *
In sum, Davis’s proposed class shares a common harm stemming from a common source.
The applicable facts and law overlap between class members, so the class’s claims are common
and can be resolved together.
12 C.
Next up is typicality. It requires a “nexus between the class representative’s claims . . .
and the common questions of fact or law which unite the class.” Kornberg v. Carnival Cruise
Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). Generally, typicality exists if the claims all
“stem from a single event or a unitary course of conduct, or if they are based on the same legal or
remedial theory.” J.D. v. Azar, 925 F.3d 1291, 1322 (D.C. Cir. 2019) (quoting 7A Wright et al.,
Federal Practice and Procedure § 1764). The facts for each claim need not be identical, but they
cannot “markedly differ[].” Kornberg, 741 F.2d at 1337. Any discussion of factual variation
should focus on “the nature of the claims . . . not the individual characteristics of the plaintiff.”
Radosti v. Envision EMI, LLC, 717 F. Supp. 2d 37, 52 (D.D.C. 2010) (cleaned up).
The Government believes Davis’s claim lacks typicality. He is on lifetime parole, while
other class members have shorter terms of supervision. Opp’n at 12–13. For the latter, “failure
to comply with their supervision requirements can result in more time spent in supervision,
including possibly an extension of the supervised release terms.” Opp’n at 13. In contrast,
Davis’s lifetime parole means his supervision cannot be extended even if his disability results in
a violation. While the Government’s explanation is opaque, it implies this distinction is
significant and makes Davis’s claim atypical. 3
At best, the Government has identified an inconsequential factual variation about Davis’s
characteristics, not the nature of his claim. Radosti, 717 F. Supp. 2d at 52. At worst, its
argument fundamentally misapprehends the core of this case. The Rehabilitation Act prohibits
3 The Government also questions whether the class will cover individuals who are under the Commission’s purview but not CSOSA’s supervision. Opp’n at 12. Davis’s proposed class clearly encompasses only those who are supervised by both the Commission and CSOSA. Mot. to Cert. at 1; Pl.’s Reply, ECF No. 44, at 15.
13 disability discrimination full stop, not merely discrimination that causes secondary harms like an
extension of supervision. See Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1270 (D.C.
Cir. 2008). To suggest otherwise is an “astounding proposition.” Id. The operative harm
alleged here is the failure to offer reasonable accommodations, not the later ramifications. The
Commission continues to focus on downstream maladies, despite the Court’s unequivocal
statement that “[t]he ‘denial of equal treatment’ itself counts as an injury . . . . The law requires
no further downstream harms.” Mathis, 2024 WL 4056568, at *13. (quoting Ne. Fla. Ch. of
Assoc. Gen. Contractors. v. City of Jacksonville, 508 U.S. 656, 666 (1993)).
Besides, even if the Court considered downstream harms, it would not help the
Government. Davis, like the rest of the proposed class, could have his supervision terminated
early if he met various criteria including successful compliance with his conditions. 28 C.F.R.
§ 2.95 (parole); 28 C.F.R. § 2.208 (supervised release). A failure to accommodate allegedly
increases the risk of non-compliance, thereby stripping those with disabilities of equal access to
early termination.
Instead, the Court finds that Davis satisfies typicality. His claim is typical to those of the
class: the Government’s systematic failure to assess and accommodate disabilities deprives him
of equal access to the benefits of supervision. The contours of this claim span Davis and the
entire class regardless of the disability, the necessary accommodation, the downstream harm, or
the length of supervision. In sum, Davis’s claim is typical for the class because it “stem[s] from
. . . a unitary course of conduct” and is “based on the same legal or remedial theory.” Azar, 925
F.3d at 1322.
14 D.
The fourth requirement in Rule 23(a) is adequacy. It protects class members from being
saddled with a representative who does not “competently and fairly” advocate for their interests.
Azar, 925 F.3d at 1312. There are two components. First, the class representative “must not
have antagonistic or conflicting interests with the unnamed members of the class.” Id. (cleaned
up). Second, the representative “must appear able to vigorously prosecute the interests of the
class through qualified counsel.” Id. (cleaned up). Adequacy “is not a stringent requirement.”
Hoyte v. District of Columbia, 325 F.R.D. 485, 491 (D.D.C. 2017). “A class representative need
only possess a minimal degree of knowledge necessary to meet the adequacy standard.” New
Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007) (cleaned up).
But in “flagrant cases” where representatives “display an alarming unfamiliarity with the suit,”
courts may decline certification. Garnett v. Zeilinger, 301 F. Supp. 3d 199, 210 (D.D.C. 2018)
(cleaned up).
The Government does not contest Davis’s adequacy as a class representative, and the
Court is satisfied he meets both requirements. First, Davis and the other class members will
benefit from the same injunctive relief, so Davis does not have divergent interests. Plus, as
Davis points out, there is no risk of a financial conflict of interest because he is not seeking any
monetary damages. Mot. to Cert. at 24. Second, Davis appears able to advance the class’s
collective interests through experienced counsel. He has a general understanding of the issues in
the case, see K. Davis Decl. ¶¶ 14–19, 51, and declarations from his lawyers catalogue the
experience necessary to “vigorously prosecute” the case. See S. Deger-Sen Decl. ¶¶ 4–11, ECF
No. 40-17; S. Michelman Decl. ¶¶ 3–13, ECF No. 40-18; H. Perry Decl. ¶¶ 3–7, ECF No. 40-19;
15 A. Verriest Decl. ¶¶ 3–11, ECF No. 40-20. The Court thus finds that Davis meets the adequacy
requirements for acting as a class representative.
To recap, the class is numerous because Government records indicate it will have
hundreds of members. It has commonality because all class members allegedly suffer the same
harm for the same reason: discrimination because of the Government’s wholesale failure to
consider and accommodate disabilities during supervision. Davis’s claim is typical to those of
the class because they all hinge on the same systemic failure and share an injunctive remedial
theory. And Davis is an adequate class representative with counsel well-suited to handle the
litigation. Davis and his proposed class meet the four requirements in Rule 23(a).
E.
The proposed class also meets the fifth and final requirement found in Rule 23(b)(2).
Recall that this rule applies when the opposing party “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.” Fed. R. Civ. P. 23(b)(2). The touchstone is
whether relief is “indivisible”—that is, whether “the conduct is such that it can be enjoined or
declared unlawful only as to all of the class members or as to none of them.” Wal-Mart, 564
U.S. at 360 (cleaned up). “Civil rights cases against parties charged with unlawful, class-based
discrimination are prime examples of what [Rule 23](b)(2) is meant to capture.” Id. at 361
Relief is indivisible. The class is not bringing piecemeal challenges to individual
accommodation decisions. The claim instead hinges on a system-wide violation of the
Rehabilitation Act that either harms all class members or none. If the Complaint is correct, the
16 same injunctive remedy is necessary for each class member. But if the Complaint is incorrect, it
fails for all members in unison. The class thus satisfies Rule 23(b)(2).
Having found that Davis’s proposed class meets all five requirements of Rule 23, the
Court will certify a class consisting of all people with a disability who are on or will be on parole
or supervised release in the District of Columbia under the Commission’s and CSOSA’s
supervision, and who need accommodations to have an equal opportunity to succeed on parole or
supervised release.
F.
Next, the Court appoints class counsel. Fed. R. Civ. P. 23(g). In doing so, the Court
must consider: “(i) the work counsel has done in identifying or investigating potential claims in
the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the
types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv)
the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A).
The Court may also consider “any other matter pertinent to counsel’s ability to fairly and
adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B).
Davis is well represented. His lawyers hail from the Public Defender Service for the
District of Columbia, the American Civil Liberties Union, the American Civil Liberties Union of
the District of Columbia, and Latham & Watkins, LLP. Mot. to Cert. at 26–27. They are
seasoned litigators, with experience representing criminal defendants, prisoners, and civil rights
plaintiffs. See S. Deger-Sen Decl. ¶¶ 4–11; S. Michelman Decl. ¶¶ 3–13; H. Perry Decl. ¶¶ 3–7;
A. Verriest Decl. ¶¶ 3–11. Most of them also have experience litigating class actions. See
S. Deger-Sen Decl. ¶ 4; Michelman Decl. ¶¶ 3–8; H. Perry Decl. ¶ 4; A. Verriest Decl. ¶ 8.
17 Considerable work has gone into this case already, as shown by the robust Complaint and
multiple rounds of briefing from counsel. Despite its opposition to class certification, the
Government lodges no objection to Davis’s lawyers acting as class counsel. See Opp’n at 1, 15.
The Court thus finds that Davis’s lawyers have done considerable work identifying and
investigating the claim; they have experience handling class actions and the type of claim here;
they are knowledgeable on applicable laws; and they have been willing to commit resources to
this litigation. For these reasons, the Court appoints Davis’s current lawyers as class counsel.
IV.
Davis’s proposed class meets the requirements of Rules 23(a) and 23(b)(2). Class
certification will provide an effective means of resolving a case affecting hundreds of disabled
individuals on parole and supervised release. For these reasons, it is
ORDERED that Plaintiff’s [40] Renewed Motion for Class Certification and
Appointment of Counsel is GRANTED; and it is further
ORDERED that this case is certified as a class action on behalf of all people with a
disability who are on or will be on parole or supervised release in the District of Columbia under
the Commission’s and CSOSA’s supervision, and who need accommodations to have an equal
opportunity to succeed on parole or supervised release; and it is further
ORDERED that the following counsel currently representing Davis are appointed to
serve as class counsel:
Christine Casey Smith
Hanna Perry
Allison Frankel
Ashika Verriest
18 Lia Rose Barrett
Michael Krevans Perloff
Peter E. Davis
Scott Michelman
Zoe E. Friedland
Samir Deger-Sen
SO ORDERED.
2025.02.11 09:42:56 -05'00' Dated: February 11, 2025 TREVOR N. McFADDEN United States District Judge