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Brown v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

July 5, 2019

Ivy Brown, in her individual capacity and as representative of the certified class, Appellant
v.
District of Columbia, a Municipal Corporation, Appellee

          Argued January 14, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-02250)

          Kelly Bagby argued the cause for the appellant. Maame Gyamfi, Iris Y. González, Sasha M. Samberg-Champion and Ryan Downer were with her on brief.

          David A. Reiser and Jonathan H. Levy were on brief for the amici curiae The Legal Aid Society for the District of Columbia, et al. in support of the appellants.

          Jonathan L. Marcus was on brief for the amici curiae American Association of People with Disabilities, et al. in support of the plaintiffs-appellants.

          Sonya L. Lebsack, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for the appellee District of Columbia. Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Caroline S Van Zile, Deputy Solicitor General were with her on brief. Stacy Anderson, Assistant Attorney General, entered an appearance.

          Before: Henderson and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          Karen LeCraft Henderson, Circuit Judge.

         In Olmstead v. L.C ex rel. Zimring, the United States Supreme Court held that the unjustified segregation of disabled individuals in institutions is a form of disability discrimination barred by federal law. 527 U.S. 581 (1999). Consequently, the District of Columbia ("District") violates the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101 et seq.), and the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701 et seq.), if it cares for a mentally or physically disabled individual in a nursing home notwithstanding, with reasonable modifications to its policies and procedures, it could care for that individual in the community. Plaintiffs are a class of physically disabled individuals who have been receiving care in District nursing homes for more than ninety days but wish to transition-and are capable of transitioning-to community-based care. They seek an injunction requiring the District to alter its policies and procedures in order to help them transition to the community. After a nine-day bench trial, the district court entered judgment in favor of the District. We now reverse and remand.

         I. Background

         The District funds both nursing-facility-based and community-based care for individuals with physical disabilities. In both settings, individuals are provided with assistance in eating, bathing, toileting and dressing, as well as with their mobility, medication management, meal preparation, money management and telephone use. The District does not operate nursing facilities itself; it funds care in nursing facilities certified for Medicaid reimbursement through its Medicaid State Plan.[1] There are nineteen Medicaid-certified nursing facilities in the District, which house a total of approximately 2, 770 beds. Plaintiffs are physically disabled individuals in these facilities who have been receiving nursing-facility-based care for more than ninety days but wish to transition-and are capable of transitioning-to community-based care.

         This litigation began in late 2010, when four disabled individuals filed a class action against the District, alleging that the District's failure to transition them to community-based care violated Title II of the ADA and section 504 of the Rehabilitation Act. The district court rejected the District's initial argument that it was entitled to summary judgment because it had in place an effective "Olmstead Plan"-that is, a "comprehensive, effectively working plan for placing qualified persons with [physical] disabilities in less restrictive settings," with "a waiting list that move[s] at a reasonable pace not controlled by the [District's] endeavors to keep its institutions fully populated," Olmstead, 527 U.S. at 605-06. Day v. District of Columbia, 894 F.Supp.2d 1, 26-32 (D.D.C. 2012). It was "undisputed" that the District had not adopted a "formal Olmstead Plan," id. at 7, and the district court rejected the District's argument "that its existing programs and services for individuals with disabilities me[]t the requirements of an Olmstead Integration Plan," id., pointing to undisputed figures that showed the District lacked a "measurable commitment" to the transitioning of disabled individuals to the community, id. at 28-29.

         In May 2012, Plaintiffs moved for class certification. The district court identified certain deficiencies in the proposed class and denied the motion without prejudice. In March 2013, Plaintiffs filed an amended complaint that revised the proposed class definition and alleged multiple deficiencies in the services the District provides to transition disabled individuals from nursing homes to the community. In March 2014, the district court granted Plaintiffs' motion for class certification. Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C. 2014). The certified class consisted of:

All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based long-term care services that would enable them to live in the community; and (3) would prefer to live in the community instead of a nursing facility but need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community.

Order, No. 1:10-cv-2250 (D.D.C. Mar. 29, 2014), ECF 129 at 1. Although the district court found class certification appropriate, it expressed doubt-in light of the lack of "readily affordable housing in the community"-that Plaintiffs would ultimately be able to establish "a causal link between any proven deficiencies in the District's system of transition assistance and the injury associated with being 'stuck' in a nursing facility." Thorpe, 303 F.R.D. at 137.

         At the same time, the district court denied the District's renewed motion to dismiss based on its then-recent implementation of a formal "Olmstead Plan." Id. at 131-32. The district court acknowledged that "the District has made some progress in the recent past" and that "this progress appears to be continuing." Id. at 138. Nevertheless, it was "undisputed that many Medicaid residents in nursing homes have expressed a desire to receive services in a less restrictive setting in the community, but have not been able to do so." Id. Thus, the district court held that the District had "yet to demonstrate that its Olmstead Plan is an 'effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, [with] a waiting list that move[s] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.'" Id. (first and third alterations in original) (quoting Olmstead, 527 U.S. at 606-07).

         In April 2014, the District petitioned this Court for leave to file an interlocutory appeal of the district court's class certification. We denied the petition in June 2015. In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015). We held that, although "[t]he District Court's decision to certify may or may not have been an error," "we cannot say that it was a 'manifest error,' which is the standard for us in this interlocutory appellate posture under Rule 23(f)" of the Federal Rules of Civil Procedure. Id. at 98.

         After our decision, the district court ordered discovery and Plaintiffs filed another amended complaint, which contained their proposed injunction. The proposed injunction would require the District to:

1. Develop and implement a working system of transition assistance for Plaintiffs whereby Defendant, at a minimum, (a) informs DC Medicaid-funded nursing facility residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities; (b) elicits DC Medicaid-funded nursing facility residents' preferences for community or nursing facility placement upon admission and at least every three months thereafter; (c) begins DC Medicaid-funded nursing facility residents' discharge planning upon admission and reviews at least every month the progress made on that plan; and (d) provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community.
2. Ensure sufficient capacity of community-based long-term care services for Plaintiffs under the EPD, [2] MFP, [3] and PCA programs, [4] and other long-term care service programs, to serve Plaintiffs in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs.
3. Successfully transition Plaintiffs from nursing facilities to the community with the appropriate long-term care community-based services under the EPD, MFP, and PCA programs, and any other long-term care programs, with the following minimum numbers of transitions in each of the next four years:
a. 80 class members in Year 1;
b. 120 class members in Year 2;
c. 200 class members in Year 3; and
d. 200 class members in Year 4.
4. Sustain the transition process and community-based long-term care service infrastructure to demonstrate the District's ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semi-annual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals assisted by Defendant to transition to the community with long-term care services through each of the MFP, EPD, and PCA, and other long-term care programs; and the aggregate dollars Defendant saves (or fails to save) by serving individuals in the community rather than in nursing facilities.

Fourth Am. Compl., No. 1:10-cv-2250 (D.D.C. Sept. 10, 2015), ECF 162 at 31-32.

         The litigation then proceeded to a bench trial. The district court bifurcated the trial into a "liability" phase and a "remedy" phase. Order, No. 1:10-cv-2250 (D.D.C. May 9, 2016), ECF 178 at 2. It held the "liability" phase trial over nine days between September 2016 and November 2016, and, at the conclusion of that phase, ordered the parties to submit proposed findings of fact and conclusions of law. Brown v. District of Columbia, 322 F.R.D. 51, 61-62 (D.D.C. 2017).

         In September 2017, the district court concluded that Plaintiffs had failed to establish the District's liability under both the ADA and the Rehabilitation Act. Brown, 322 F.R.D. 51. Thus, without proceeding to the "remedy" phase of the trial, the district court entered judgment in favor of the District. Id. at 96. It issued a lengthy opinion, explaining that "[t]his case presents the difficult legal issue of what a class of plaintiffs proceeding under an Olmstead theory of liability must prove in order to demonstrate their entitlement to relief under Rule 23." Id. at 86. It concluded that, "under Rule 23," "plaintiffs must prove that the District maintains a policy or practice (i.e., a concrete systemic deficiency) that has caused the class members to remain in nursing facilities despite their preference to receive long-term care in the community." Id. at 87. It held that Plaintiffs both (1) "failed to carry their burden of proving the existence of a concrete systemic deficiency in the District's transition services" and (2) "failed to prove that the class members' institutionalization is caused by systemic deficiencies in the District's transition services or that the harm can be redressed by a single injunction." Id. As a result, it concluded that Plaintiffs "failed to carry their burden to prove that class-wide relief is appropriate under Rule 23(b)(2)" and "dismiss[ed] plaintiffs' class-wide claims." Id. at 96. Finding that Plaintiffs sought no individual relief, the district court entered final judgment for the District. Id. Plaintiffs timely appealed. We review the district court's factual findings for clear error and its legal conclusions de novo. Armstrong v. Geithner, 608 F.3d 854, 857 (D.C. Cir. 2010).

         II. Analysis

         A. Plaintiffs Need Not Identify "Concrete, Systemic Deficiency"

         The district court held that the District was entitled to summary judgment primarily because Plaintiffs failed to identify a "concrete, systemic deficiency" in the District's transition services. See, e.g., Brown, 322 F.R.D. at 53 ("[T]he essential question before the Court is whether plaintiffs have shown concrete systemic deficiencies that harm the class and, if these deficiencies exist, whether they are redressable by a single injunction."); id. at 87 ("[P]laintiffs must prove that the District maintains a policy or practice (i.e., a concrete systemic deficiency) that has caused the class members to remain in nursing facilities despite their preference to receive long-term care in the community. The Court . . . concludes that plaintiffs have failed to carry their burden of proving the existence of a concrete systemic deficiency in the District's transition services."); id. at 96 ("[P]laintiffs have failed to demonstrate the existence of a concrete, systemic failure that entitles them to class-wide relief."). Nowhere does Olmstead talk about "concrete, systemic deficiencies."[5]

         Olmstead interprets the ADA, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; see also 29 U.S.C. § 794(a) (parallel statutory language in Rehabilitation Act). One of the many regulations implementing the statutory mandate provides: "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). At the same time, the regulation contains a caveat: "[a] public entity shall make reasonable modifications . . . necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." Id. § 35.130(b)(7)(i) (emphasis added).

         In Olmstead, the Supreme Court declared that, because "unjustified isolation of persons with disabilities is a form of discrimination," 527 U.S. at 600, the ADA and its implementing regulations "require placement of persons with mental disabilities in community settings rather than in institutions" under certain circumstances, id. at 587.[6] "Such action is in order," the Court said, "when [(1)] the State's treatment professionals have determined that community placement is appropriate, [(2)] the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and [(3)] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." Id.

         Although the Court did not expressly declare that the State bears the burden of proving the unreasonableness of a requested accommodation once the individual satisfies the first two requirements, we believe it does for three reasons. First, Olmstead's third prong originates in the above-quoted regulation, which, again, provides: "[a] public entity shall make reasonable modifications . . . necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7)(i) (emphasis added). Second, interpreting this regulation, the Olmstead Court confirmed that "States [can] resist modifications" requested by segregated disabled individuals only if they "would fundamentally alter the nature of the service, program, or activity." Olmstead, 527 U.S. at 597 (quoting 28 C.F.R. § 35.130(b)(7) (1998)). Third, interpreting both Olmstead and this regulation, other circuits have put the burden of establishing the unreasonableness of a requested accommodation on the State. Steimel v. Wernert, 823 F.3d 902, 914-16 (7th Cir. 2016) (if disabled individual desires community-based treatment and medical professional determines that such placement is appropriate, "[i]t is the state's burden to prove that the proposed changes would fundamentally alter their programs"); Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) ("Because [the State] does not allow [the disabled individual] to receive the services for which he is qualified in a community-based, rather than nursing home, setting, [the disabled individual] can prove that the [State] has violated Title II of the ADA, unless [the State] can demonstrate that provision of community-based services to [him] and members of the class would fundamentally alter the nature of the services [it] provides."); see also Frederick L. v. Dep't of Public Welfare of Pa., 422 F.3d 151, 156-57 (3d Cir. 2005) ("[The State] is obligated by . . . federal . . . law to integrate eligible patients into local community-based settings. However, the integration mandate 'is not boundless' . . . [because it is] qualified by the 'fundamental alteration' defense, under which integration may be excused if it would result in a 'fundamental alteration' of the state's mental health system . . . ." (quoting Olmstead, 527 U.S. at 603-04)).

         A plurality of the Olmstead Court outlined two ways in which a State can establish that the requested accommodations are unreasonable-in other words, two ways it can make out its "fundamental alteration" defense. First, the State can "show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with [physical] disabilities." Olmstead, 527 U.S. at 604. Second, the State can "demonstrate that it ha[s] a comprehensive, effectively working plan for placing qualified persons with [physical] disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated," i.e., an "Olmstead Plan." Id. at 605-06. Other courts have treated the plurality's approach as the starting point for analyzing the "fundamental alteration" defense. Steimel, 823 F.3d at 915; Townsend, 328 F.3d at 519 n.3.

         We adopt the plurality's approach because in our view it makes good sense. It effectively requires every State that cares for disabled individuals in institutions, notwithstanding those individuals wish to, and could, be treated in the community, to have a "comprehensive, effectively working plan" for transitioning the individuals to the community and a "waiting list [for transition to the community] that move[s] at a reasonable pace," i.e., an adequate "Olmstead Plan." Olmstead, 527 U.S. at 605-06. Accordingly, a State that demonstrates it has an adequate "Olmstead Plan" in place meets Olmstead's integration mandate. A State that cannot demonstrate it has such a plan in place, however, must make every modification to its policies and procedures requested by an institutionalized disabled individual who wishes to, and could, be cared for in the community, unless the modification would be so costly as to require an unreasonable transfer of the State's limited resources away from other disabled individuals. Id. at 604.

         The district court's fundamental error was looking for the existence vel non of a "concrete, systemic deficiency" in the District's transition services. Having determined that Plaintiffs bore the burden of demonstrating the existence of a concrete, systemic deficiency, the district court considered four potential systemic deficiencies at trial. Brown, 322 F.R.D. at 89-92. At the end of the trial, the district court concluded that Plaintiffs had not proved any of the four and therefore entered judgment against them. Id. at 96.[7] The district court's formulation led it to require Plaintiffs to meet a burden they should not have been made to shoulder.

         B. No Class Certification Issue

         A class can be modified or decertified at any point before final judgment is entered. Fed.R.Civ.P. 23(c)(1)(C). Although the district court did not decertify the class, it held that Plaintiffs failed to prove their injury "can be redressed by a single injunction," as required by Fed.R.Civ.P. 23(b)(2), Brown, 322 F.R.D. at 87; see also id. at 92-96, and suggested Plaintiffs may not be able to satisfy Rule 23(a)(2), Brown, 322 F.R.D. at 87-89. At least at this stage, however, we accept that this litigation is a proper class action.

         Plaintiffs who proceed as a class must satisfy the requirements of Federal Rule of Civil Procedure 23. Under Rule 23(a):

One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). Additionally, the proposed class action must fall into one of the categories listed in Rule 23(b). Fed.R.Civ.P. 23(b). Relevant here is Rule 23(b)(2), which applies if "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." Id.

         1. Rule 23(a)(2)

         The Supreme Court examined the Rule 23(a)(2) standard, also known as the "commonality" requirement, in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). There, three named plaintiffs sought to represent a class of 1.5 million female Wal-Mart employees who sought to sue Wal-Mart under Title VII for sex discrimination in pay and promotion across the company's more than 3, 000 stores. Id. at 342-43. The district court certified a class of "[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices." Id. at 346. The Supreme Court concluded that the class did not satisfy Rule 23(a)(2). Id. at 349-60. Although resolution of each plaintiff's claim turned on a common question-was her gender the reason she was paid less and/or not promoted?, id. at 343-45-"[w]hat matters to class certification . . . is not the raising of common 'questions, '" id. at 350 (second alteration in original). What matters to class certification, the Court said, is "the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Id. "That common contention, moreover, must be of such a nature that it is capable of ...


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