Case: Petties v. D.C

On January 29, 1995, in the U.S. District Court for the District of Columbia, plaintiffs, minor students eligible for special education and their parents sued the District's public school system, sought a preliminary injunction, and sought to certify a class of students with disabilities who were entitled to or received special education instruction and services from the District of Columbia Public Schools ("DCPS"). Plaintiffs had private counsel and attorneys from University Legal Services and the National Disability Rights Network.

On March 17, 1995, District Judge Paul L. Friedman found that the plaintiffs' complaint and preliminary injunction proof established, as the complaint alleged, that the defendants had placed numerous DCPS students in private special education facilities pursuant to the district's obligation to provide an appropriate placement for these students; that the defendants had entered into contracts or other agreement with private firms or other entities for the provision of special education related services to students attending public schools within the DCPS system; that the defendants were required by law to maintain these students' placements and related services by paying the costs thereof; but that the defendants had not paid the costs of private special education placements or related services either fully or on a current or timely basis for at least the 1994-1995 school year. Consequently, Judge Friedman found that the defendants violated the Individuals with Disabilities Education Act ("IDEA") and other laws and regulations intended to ensure that DCPS students with special education needs received a free, appropriate education. He adjudged that, unless the defendants fully and immediately funded all DCPS students then in private special education placements and/or receiving related services from private providers and, in addition, gave adequate written assurances that such payments would be made on a current basis in the future, many, if not all of those students would have those placements and/or services terminated, and with no indication that appropriate alternative placements would be available, leaving students' individual needs unmet. The court issued its' preliminary injunction, obligating DCPS to make timely payments to the special education facilities, and also certified a class, described as "all [DCPS] students currently placed in private special education schools or receiving special education and/or related services from a private third party provider, all [DCPS] students placed in public schools who currently are receiving related services from private providers, and all [DCPS] students who have been determined by an administrative decision or by agreement with the DCPS to be eligible to receive services from private providers (including private placements)." Petties v. District of Columbia, 881 F. Supp. 63 (D.D.C. 1995). This was but the start of long, sometimes contentious litigation.

A second case against DCPS making similar allegations on behalf of a child with learning and emotional disabilities, and his mother, also resulted in a similar order from the court. Plaintiffs in both cases moved, little more than a month after the preliminary injunctions issued, to have the defendant held in contempt, based upon the DCPS' announcement that it intended to terminate funding for tuition and transportation for the private school placement of these special needs children. In a single ruling applicable to both cases, the court held the district in contempt upon that basis (rejecting other grounds asserted to also make a contempt finding). Judge Friedman directed that the defendant notify the private schools that its termination of payment announcement would not apply to them. He further ordered payment within 14 days of sums owed to these facilities and that the DCPS provide transportation for the special needs students to the private schools. Petties v. District of Columbia, 888 F. Supp. 165 (D.D.C. 1995).

Part of the reason the judge rejected other asserted bases for holding DCPS in contempt was that some students' special education placements were funded by the District of Columbia's Department of Human Services (DHS), rather than by DCPS, making it unclear whether the court's orders included these students. Consequently, plaintiffs moved to amend the class description and to modify the preliminary injunction to make it clear that DHS-funded special needs students were within these orders' terms. Judge Friedman granted these modifications on July 21, 1995, ruling that IDEA applied to DHS-funded special needs students, as well as those funded directly by DCPS. Petties v. District of Columbia, 894 F. Supp. 465 (D.D.C. 1995).

As the new school year approached, defendants' counsel obtained an extension of time to gather data to ensure payments were made to education service providers, as required by the court's earlier orders but, when the school year began, numerous providers had not been paid, the extension period had elapsed, and services were being, or were about to be, denied to some in the plaintiff class. An emergency hearing occurred, at plaintiffs' request, to impose contempt sanctions against DCPS and its' management. These defendants were again found in contempt of the court's orders and in violation of IDEA. The court issued an order directing defendants to make specific payments to specific providers by certain dates and imposing a fine of $25,000 for each calendar day that the defendants did not comply with the payment order. Petties v. District of Columbia, 897 F. Supp. 626 (D.D.C. 1995).

For several years afterward, the parties had a consent order allowing for payment of plaintiffs' attorneys' fees based upon periodic submissions by plaintiffs' counsel of amounts owed. An appropriates act was passed for the District of Columbia containing a section that the defendants' counsel argued precluded payment of these fees, and modification of the consent order was sought by the defense. Judge Friedman rejected the effort, ruling that the plaintiffs case was brought under 42 U.S.C. § 1988, making the IDEA provision for attorney fee payment inapplicable and thereby also making the payment limitation in the appropriations act inapplicable. Accordingly, the court ordered payment of plaintiffs' attorneys' fee submissions which had gone unpaid since the effective date of the appropriations act. Petties v. District of Columbia, 55 F. Supp.2d 17 (D.D.C. 1999) (Judge Paul L. Friedman).

On August 7, 2000, the court accepted the parties' consent order addressing transportation and other issues concerning provision by DCPS of services to the special needs student plaintiff class. One aspect of the order created a school transportation administrator for a limited term. The parties reached an agreement to extend that term but, late in 2001, without notice to the plaintiffs, the defendants decided not to extend that term and to eliminate the transportation coordinator position. Plaintiffs then moved, on an emergency basis, for a court order to preserve the status quo and to extend the coordinator's term for 60 days, but Judge Friedman denied their requests on February 6, 2002. He chided the defendants for their reneging and lack of notice to plaintiffs, but said that as the position and its limits had been created through the parties' agreement, he had no authority to extend the position. He noted that the defendants still had the obligation of providing transportation services to the plaintiff class and their decision that they could do so without the continuation of a transportation coordinator's services was a permissible judgment. Petties v. District of Columbia, 183 F. Supp.2d 73 (D.D.C. 2002). An unpublished order March 13, 2002, by Judge Friedman denied plaintiffs' motion regarding a show cause hearing at which defendants might be (again) found in contempt, this time for violation of a July 10, 2001, consent order; however, we have no copy of that consent order nor of the plaintiffs' motion and do not know the precise nature of this particular dispute.

Transportation of these special needs students continued to raise issues. By 2002, a Special Master existed in the case and had made reports to the court on compliance by the defendants. One report prompted the court to issue an order on July 17, 2002, obligating the defendant school district to provide, on an on-going basis, the Special Master with updated, detailed, and accurate information about students transported and to keep and to make available for review logs of "dry run" transportation efforts. The order provided that defense failure to keep and provide this information would result in fines. Petties v. District of Columbia, 211 F. Supp.2d 141 (D.D.C. 2002). Later in the year, plaintiffs sought and obtained another preliminary injunction, evidently prompted by the DCPS' failure to pay for services and transportation for students attending two particular private facilities. On November 14, 2002, in a preliminary injunction, Judge Friedman ordered DCPS to make payments of one-and-one-half million dollars to each facility, to make regular monthly payments thereafter, to negotiate with the facilities, and to be monitored by the Special Master, in resolving past due and future payment obligations. He also ordered that procedural due process be provided prior to changes in students' educational placement which may result from failure to resolve the payment issues. While the injunction itself was not published, at first, the court's opinion supporting the injunction appears at Petties v. District of Columbia, 238 F. Supp.2d 88 (D.D.C. 2002). The opinion notes that the parties had consented to an August 28, 1996, plan for structured periodic payments to private education service providers to ensure that late or partial payments to these providers did not re-occur. To Judge Friedman, disregard of this 1996 plan, incorporated then in an unpublished court order, and continued violation of IDEA obligations could not be excused by the District's financial constraints. Id. Later, both the opinion and the injunction were published at Petties v. District of Columbia, 238 F. Supp.2d 114 (D.D.C. 2002).

Students, parents, and education service providers were not the only ones complaining of ill treatment by DCPS. The Special Master in the case, Elise T. Baach, had to make a request to the court for an order requiring the defendants to produce information to her regarding student transportation issues and defendants proposed closure of certain objectives established in the Exit Plan by which the DCPS might achieve an end to court supervision. The court noted that, after the Special Master's request had been frustrated by the defendants and she had to make the request through the court, she received the information. Thus, Judge Friedman made no contempt or other finding at that time, but he cautioned defense counsel to review the July 8, 1997, opinion and order of reference in the case and to fully comply with each provision therein, or risk sanction by the court. Petties v. District of Columbia, 263 F. Supp.2d 55 (D.D.C. 2003).

In the summer of 2003, the parties and the Special Master agreed that an independent transportation administrator should be appointed to operate and improve the DCPS' transportation obligations to disabled students. The court issued an unpublished consent order making this appointment on June 25, 2003. Among other things, the order provided the administrator authority over a $60 million transportation budget. Payment of invoices for non-transportation educational services would sometimes be delayed or contested by DCPS, in part because of a policy it adopted in December 2002, to supposedly encourage higher attendance rates by students at the private facilities. Such disputes led to a ruling by Judge Friedman that the policy had been invalidly enacted. Petties v. District of Columbia, 298 F. Supp.2d 60 (D.D.C. 2003). Disputes over DCPS failures in payment of invoices or reimbursement of expense would, at times, be resolved by hearings held by the Special Master or by hearing officers she appointed. Examples of the results of such hearings can be reviewed in the database for this case at the documents dated March 23, 2004, and November 7, 2006, and designated as document ED-DC-1-0006 and ED-DC-1-0007, respectively.

On April 21, 2006, Judge Friedman's unpublished order confirmed, over defense objection, that the Transportation Administrator had the authority to negotiate and enter into collective bargaining agreements on behalf of the DCPS Division of Transportation. The U.S. Court of Appeals for the District of Columbia Circuit affirmed this ruling in an unpublished per curiam decision on May 1, 2007.

The docket sheet for this case reflects continued payment dispute and Special Master report activity throughout 2007.

In her July 2, 2007 report, the Special Master requested funds from the Court Registry to create the nonprofit, the District of Columbia Association for Special Education (DCASE). The court approved the use of the funds on July 20.

The court accepted several of the Special Master’s contentions in an order dated October 30, 2007. First, the court agreed that the Office of the State Superintendent of Education (OSSE) had probably drafted the defendants’ opposition response to the Special Master’s report, and that the OSSE lacked sufficient familiarity with the history of this case. The court reiterated that the parties had an obligation to comply with the court’s orders until the case is settled or otherwise resolved, and compliance requires awareness of those orders. The court thus ordered the OSSE to provide the Special Master with information of the agency’s policies and practice with respect to rate-setting for nonpublic schools, and any written procedures OSSE had for providing DCPS with rates for nonpublic special education programs. OSSE also had to share the names of the individuals responsible for sending and receiving that information and any applicable timelines. The DCPS had to send copies of any agreements it had with any agency, nonpublic special education program, or public charter school with a provision for binding alternative dispute resolution procedures. This also included a report of any draft contracts.

On January 7, 2008, the court awarded plaintiffs attorneys’ fees of $114,503.14 and costs of $1,590.72 for the period of September 1, 2004 to February 28, 2005. Due to the Districts’ fee cap, the parties agreed and the court amended its order to require the District to pay only the costs within the first 60 days of the order.

The docket sheet for this case reflects continued payment dispute and Special Master report activity throughout 2008. The court regularly adopted the Special Master’s recommendations on third-party payment disputes and Special Master fees.

On March 11, 2008, the court held that the attorneys fees cap under the District of Columbia Appropriations Act does not apply to prevailing parties in suits under the Individuals with Disabilities Education Act. Under the clear language of the statute, the cap applied only to attorneys representing individual parties, whereas the plaintiffs’ attorneys here represented hundreds or thousands of parties. The court thus granted the plaintiff’s motion for attorneys’ fees and costs from September 1, 2004 to November 30, 2004.

On April 16, 2008, pursuant to its January 18, 2008 order, the court determined that the District must pay the plaintiffs $114,503 in fees and $1,590.72 in costs. The District filed a motion on May 8, 2008 to amend the court’s June 25, 2003 order to increase the amount the Transportation Administrator may expend in fiscal year 2008. On May 12, the court granted the District’s motion. The court ordered the registry on June 17, 2008 to reimburse the District for funding for DCASE that the Special Master had included in her costs and fees while the defendant’s motion to cap attorneys fees was pending. The amount totaled $175,404.50.

The docket sheet for this case reflects continued payment dispute and Special Master report activity throughout 2009 and 2010. The court regularly adopted the Special Master’s recommendations on third-party payment disputes and Special Master fees.

In early January 2009, the plaintiffs filed a series of motions relating to the defendants’ failure to comply with the November 8, 2004 payment order. The issue arose over the District’s proof of residency requirement for student enrollment. Students attending nonpublic schools while receiving District tuition payments must verify residency at the Office for Student Residency Verification. After the plaintiffs’ attempt to resolve the disputed residency informally failed, they sought a preliminary injunction requiring the defendants to refrain from terminating any class member’s special education payments or transportation until there has been complete administrative review for each student. Plaintiffs’ counsel believed 467 class members were at risk of losing their placements when the motion was filed on January 27, 2009. The court heard oral arguments on February 17, 2009. Two days later, the court denied the preliminary injunction motion, finding that there were adequate safeguards to prevent widespread funding terminations for students who were in fact residents.

On March 11, 2009, Judge Friedman referred the issue of attorneys’ fees to Magistrate Judge Alan Kay per the parties’ wishes.

In July 2009, the court agreed to amend the June 2003 Order to increase the Transportation Administrator’s budget to $76.6 million for the fiscal year 2009. The court increased the fiscal 2009 budget again on August 17 and December 15, 2009, and on January 6, 2010.

The parties came to a new agreement on the terms and conditions for payment of class member special education placements and services. The court accepted this agreement on August 5, 2009 to replace the November 8, 2004 order.

On October 20, 2009, the court granted the plaintiffs’ motion for attorneys’ fees and costs for $1,122,114.67, covering the period of March 1, 2005 to November 30, 2007. The defendants responded with an emergency motion to alter and amend the order, arguing the order violated fee caps imposed by Congress and the Anti-Deficiency Act. The court denied the motion on October 30, noting that it had already found the fee cap inapplicable to class actions in its 2008 order. 538 F. Supp. 2d 88 (D.D.C. 2008). The defendants did not raise the Anti-Deficiency Act objection in their briefs or oral argument, so the court refused to amend its ruling on this ground.

The plaintiffs filed two new motions in February 2010 for attorneys’ fees and costs for December 1, 2007 to February 29, 2008 and March 1, 2008 to May 31, 2008. On February 4, the court granted the first motion of $156,969.53, reduced by two-thirds because the plaintiffs’ role in monitoring a related case was “at most, secondary.” The court agreed to exclude time spent on residency verification because the plaintiffs were not prevailing parties on that issue. The court granted the second motion in its entirety of $141,936.90, recognizing that the plaintiffs’ billing judgment was “to be applauded.” The plaintiffs won a total of $286,985.78 in fees and costs, as the February 18, 2010 order calculates. The court denied the District’s motion to stay this order on April 16, 2010.

The District had filed a motion in December 2009 to transition control of the Department of Transportation back to the District. Both parties agreed that the transition should begin but disagreed on the details. In its March 4, 2010 emergency motion for a status conference on the issue, the District argued a decision on the transition should come before a ruling on the Transportation Administrator’s request to increase the DOT’s budget. The plaintiffs argued the beginning of the transition should be limited to control over bus operations, as inadequate funding and the removal of judicial supervision could have “easily undercut” the improvements the District had made. On March 19, the court denied the motion, agreeing with the plaintiffs that no emergency existed and sharing the plaintiffs’ concern that the District’s proposed budgetary solution of lengthening ride times could deprive special needs students of their IDEA rights. However, the court encouraged the parties to resume good faith discussions on the matter rather than resort to judicial resolution.

After further discussion, the parties accepted and the court adopted the Transportation Administrator’s transition plan on May 5, 2010. The court appointed a Supervising Court Master for the transition and discharged the Transportation Administrator. The District was to begin assuming management control of the DOT, and the Supervising Court Master could resume control in the event of the District’s material breach of its substantive obligations. Beginning October 1, 2010, the Office of the State Superintendent of Education would assume the powers and duties under the June 25, 2003 Consent Order. The District agreed to fund the DOT at a level sufficient to protect students. The Supervising Court Master was to report periodically to the court. Later granting the parties’ joint motion, the court extended the transition period to April 30, 2011.

On September 30, 2010, the court denied the District’s March 20, 2009 motion to vacate the 1995 preliminary injunction and payment orders. The District argued the injunction and payment orders had “outlived their usefulness.” The plaintiffs argued the orders guaranteed accurate and timely payment to private providers, and to remove them would be disruptive as the case neared its final resolution. The court agreed granting the motion would be disruptive and counter-productive to the case’s finality. The District appealed this decision on October 27, 2010. The DC Circuit reversed the decision, on December 2, 2011, based on the district court’s failure to address whether the circumstances had changed such that continued enforcement of the preliminary injunction was contrary to the public interest. 662 F.3d 564. The Circuit Court remanded to determine whether the motion should be granted in light of these circumstances. However, as detailed below, it appears that by the time the DC Circuit issued this decision, the District’s compliance under the transition plan was improving and the case was coming to a close. The court vacated the preliminary injunction in its final judgment, discussed below.

The docket sheet for this case reflects continued payment dispute and Special Master report activity throughout 2011. The court regularly adopted the Special Master’s recommendations on third-party payment disputes and Special Master fees. One third party vendor appealed the Special Master’s findings to the court, but the court affirmed the Special Master’s findings. 779 F.Supp.2d 95.

The plaintiffs had four motions pending for attorneys’ fees and costs that the court denied without prejudice on March 3, 2011. Noting a recent court of appeals’ decision, the court directed the parties to discuss settlement or mediation of the fees. The parties came to an agreement for fees covering June 1, 2008 to August 31, 2009. Reflecting this agreement, the court awarded the plaintiffs $791,223.37 in fees and costs on May 12, 2011.

On January 31, 2011, the Supervising Court Master sent a letter to the court. He reported “substantial performance problems” at the DOT, and warned that he may initiate the process for declaring a material breach. The budget cuts threatened exacerbating the problem and violating the Transition Order. The DOT had more routes than operational vehicles. The Court Master believed the District had made some progress, although the reported level of compliance fell short of what was acceptable, and he had “substantial doubts about the accuracy of the reported information.” He advised the court that the transition period would likely need to be extended until at least October 1, 2011.

On April 15, 2011, the Supervising Court Master submitted his report and recommendation on the DOT transition. He had received an improvement plan from the Office of the State Superintendent for Education a few hours after he sent his January letter to the court. He found it “disappointing in its quality and substance, much like almost every other plan” from the District in this matter. The Court Master and the Superintendent’s teams met in mid-March. The Court Master found problems with the District’s compliance with on-time arrival and ride time requirements, but noted “substantial progress” and more credible information. He criticized the inadequate transparency and communication from the Superintendent’s Office, however, he noted progress under the new Superintendent. He thus declined to find material breach but recommended extension of the transition period to October 1, 2011. The court ordered the extension on April 27, 2011.

The Supervising Court Master submitted his second report on July 22, 2011. He wrote that the DOT under the Superintendent’s supervision had “never been in compliance.” He concluded the city lacked the capacity to comply, and the situation had deteriorated due to the DOT’s inability to organize and maintain its aging buses, “jeopardizing the safety of special needs students.” The DOT did not report its failure to timely inspect brakes. The DOT had no discernable plans to correct the problems, especially in light of the District’s failure to allocate adequate funds to the DOT. The firing of the head of the DOT and the DOT’s Fleet Manager created a “leadership vacuum.” The Court Master thus initiated material breach proceedings for returning control of the DOT to the Transportation Administrator. Following the District’s response to this report, the Court Master filed a formal notification of material breach on August 9, 2011.

The Supervising Court Master submitted his third report on October 10, 2011. He declined to exercise his authority to assume control of the DOT because of City Administrator Allen Lew’s “good faith effort” to cure the material breaches. The Court Master recommended extending the transition period until October 31, 2012. He later recommended that the District submit compliance reports to himself and the plaintiffs’ counsel. On November 14, 2011, the court adopted both recommendations.

On June 21, 2012, the District filed a motion to vacate the November 14, 2011 order and all other transportation orders, and to restore the District’s authority over the DOT. In response, the plaintiffs filed a motion for limited discovery and more time to respond. The court granted the request for more time to respond to the District’s motion to vacate, and held the motion for discovery in abeyance pending the filing of the District’s opposition.

The parties came to an agreement on attorneys fees and costs for the period of September 1, 2009 to November 30, 2009. The court thus granted the plaintiffs $162,532.89 on November 28, 2011. The parties agreed to fees for the period of December 1, 2009 to February 28, 2010. The court then granted the plaintiffs $154,619.66 on March 1, 2012. For the period of March 1, 2010 to May 31, 2010, the parties agreed to $160,476.64 in fees. The court granted the plaintiffs this amount on May 4, 2012. For the period of June 1, 2010 to August 31, 2010, the parties agreed to $113,047.43. The court approved this amount on June 1, 2012. For the period of September 1, 2010 to November 30, 2010, the parties agreed to $104,600.75. The court approved this on August 1, 2012. For the period of December 1, 2010 to August 31, 2012, the parties agreed to $950,000. The court approved this on December 15, 2012.

On October 4, 2012, the court granted the parties’ joint motion to vacate a series of payment orders to private providers of special education and related services. The parties sought this order to allow the District to implement its final rules governing the vendor payment and dispute process. The court retained authority over a set of disputes listed in the order.

On October 11, 2012, the Supervising Court Master submitted his fourth report. He found that by the end of the 2011-2012 school year, the DOT operated in compliance with the Transition Order. The data showed steady improvement in meeting the 94% on-time arrival standard. The Court Master thus recommended allowing the Transition Order to expire on October 31, 2012. The Court Master submitted an updated report on November 6, with new statistics supporting his expectation that the on-time rate would continue to improve.

The parties filed a joint motion to begin the process of dismissing the case on October 26, 2012. They sought preliminary approval for final dismissal, a notice to the class, a deadline for class member responses, and a scheduling of a fairness hearing. The court granted this motion on November 9, 2012. Beginning November 15, 2012, the District was to publish the class notice on a variety of forums. The court set the fairness hearing for December 19, 2012. The court ordered on December 14, 2012, that the parties, the Supervising Court Master, and the Special Master make presentations at the fairness hearing explaining their views on the dismissal.

The court entered its final judgment and order of dismissal on December 19, 2012. The court vacated the effectiveness of its orders governing transportation and the 1995 preliminary injunction. It retained jurisdiction over the ten remaining vendor payment disputes and over attorneys fees for September 1, 2012 through December 31, 2012. The dismissal was with prejudice and binding on all class members.

The court continued to adopt the Special Master’s recommendations throughout 2013. The parties came to an agreement on the attorneys’ fees and costs for the period of September 1, 2012 to December 31, 2012. The court thus granted the plaintiffs $129,000 on April 2, 2013. The court adopted a Special Master report on December 22, 2014 regarding payments to a vendor.

According to press reports (though there is no indication in the docket confirming), on December 6, 2014, the Court ended the lawsuit.