10-3586 - CV To Be Argued By: DARREN P. CUNNINGHAM Assistant Attorney General IN THE United States Court of Appeals FOR THE SECOND CIRCUIT P.J., By & Through His Parents & Next Friends Mr. & Mrs. W.J., L.G., By & Through Her Parents & Next Friends Mr. & Mrs. L.G., M.L., By & Through Parents & Next Friends Mr. & Mrs. J.L., Plaintiffs-Appellants, Ian Ian Katz, By and Through His Parents and Next Friends Mr. & Mrs. Mark Katz, Connecticut Association for Retarded Citizens, Inc., Coalition for Inclusive Education, Connecticut Coalition of Citizens with Disabilities, People First, Inc., Intervenors-Plaintiffs-Appellants, v. CT Board of Ed., Education, Dept of, Tirozzi, Gerald, Comm., Defendants-Appellees, Regional School District 15, Board of Education, Regional School District No. 15, Board of Education, Consolidated Defendant, West Hartford Board of Education, Windham Board of Education, Stamford Board of Education, Wethersfield Board of Education, Defendants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT BRIEF OF DEFENDANTS-APPELLEES GEORGE JEPSEN ATTORNEY GENERAL DARREN P. CUNNINGHAM Assistant Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel. (860) 808-5318 Case: 10-3586 Document: 165 Page: 1 07/12/2013 988664 100
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10-3586-CVTo Be Argued By:
DARREN P. CUNNINGHAMAssistant Attorney General
IN THE
United States Court of AppealsFOR THE SECOND CIRCUIT
P.J., By & Through His Parents & Next Friends Mr. & Mrs. W.J., L.G., By & Through Her Parents & Next Friends Mr. & Mrs. L.G., M.L., By & Through Parents
& Next Friends Mr. & Mrs. J.L., Plaintiffs-Appellants,
Ian Ian Katz, By and Through His Parents and Next Friends Mr. & Mrs. Mark Katz, Connecticut Association for Retarded Citizens, Inc., Coalition for Inclusive Education, Connecticut Coalition of Citizens with Disabilities, People First, Inc.,
TABLE OF AUTHORITIES ..................................................................... iv JURISDICTIONAL STATEMENT ........................................................... 1 STATEMENT OF THE ISSUES ............................................................... 2 STATEMENT OF THE CASE .................................................................. 3 STATEMENT OF THE FACTS ................................................................ 6 I. ORIGINAL ACTION ............................................................................ 6 II. The Settlement Agreement – Key Provisions ..................................... 7
A. Class Membership (Section I) ........................................................... 7 B. Goals and Outcomes (Section II) ....................................................... 8 C. Jurisdiction (Section III) ................................................................... 9 D. Monitoring (Section V) .................................................................... 10 E. CSDE Designee (Section VI(2)) ....................................................... 10 F. Expert Advisory Panel (Section IX) ................................................ 11
III. Post Settlement .................................................................................. 11 A. The First Five Years of the Settlement Agreement ....................... 11
1. The 2005 Dispute Over Class Member Information and Resolution ..................................................................................... 12
2. 2007 Site Visits ............................................................................ 20 3. Further Attorneys’ Fees and Costs .............................................. 20
B. The Final Three Years of the Settlement Agreement .................... 21 (August 2007 – August 2010) .......................................................... 21
a. Depositions .............................................................................. 30 b. Data ......................................................................................... 32 c. Reconvening of the EAP ......................................................... 32
IV. Evidentiary Hearing .......................................................................... 34 V. District Court Ruling ......................................................................... 36 SUMMARY OF ARGUMENT ................................................................. 36 ARGUMENT ........................................................................................... 38 I. INTRODUCTION .............................................................................. 38 II. THE DISTRICT COURT PROPERLY FOUND THAT THE STATE
WAS NOT IN “SUBSTANTIAL NON-COMPLIANCE” WITH THE SETTLEMENT AGREEMENT ......................................................... 41
A. Standard of Review ......................................................................... 41 B. The District Court Used the Correct Legal Standard .................... 43 C. The State Complied With Its Obligations Concerning the Five
Goals and Outcomes ........................................................................ 58 1. The Goals Do Not Contain a Qualitative Component ................. 59 2. If Considered the Reclassified Students Should Not Be Analyzed
Separately and the District Court Properly Considered the State’s Progress ............................................................................ 63
3. The Agreement Did Not Require the State Meet Benchmarks .. 70 D. The District Court Did Not Find That the State Violated Section I
of the Agreement and the State Did Not Violate Section I ........... 73 E. The District Court Did Not Err in Concluding that the Class Was
Not Permitted Conventional Discover in the Final Three Years of the Settlement Agreement .............................................................. 81
F. The State Did Not Improperly “Dismiss” the EAP and Under the Agreement the State’s Obligations Ran Only Five Years .............. 86
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS ................................................................................... 92 CERTIFICATION OF SERVICE ............................................................ 93
Accusoft Corp. v. Palo, 237 F.3d 31 (1st Cir. 2001) ................................ 48 AMF, Inc. v. Jewett, 711 F.2d 1096 (1st Cir. 1983) ................................ 48 California v. Block, 663 F.2d 855 (9th Cir. 1981) ................................. 49n Cody v. Hillard, 139 F.3d 1197 (8th Cir. 1998) ...................................... 53 Crumpton v. Bridgeport Educ. Ass'n, 993 F.2d 1023 (2d Cir. 1993) ...... 41 David C. v. Leavitt, 242 F.3d 1206 (10th Cir. 2001) .............................. 52 Fortin v. Comm’r of Mass. Dep’t of Pub. Welfare, 692 F.2d 790 (1st Cir.
1982).......................................................................................... 50, 54, 55 Gilday v. Dubois, 124 F.3d 277 (1st Cir. 1997) ....................................... 47 Homeward Bound, Inc. v. Okla. Health Care Auth., 196 Fed. Appx. 628
(10th Cir. 2006) ............................................................................... 56, 78 In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113 (2d Cir. 2011) ... 41 Joseph A. v. New Mexico Dep’t of Human Serv., 69 F.3d 1081 (10th Cir.
1005)................................................................................................ 45, 53 Labor/Community Strategy Ctr. v. L.A. County Metro. Transp. Auth.,
564 F.3d 1115 (9th Cir. 2009) ....................................................... passim Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997) ............. 47 Officers for Justice v. Civil Serv. Comm'n of City and Cnty. of S.F., 934
F.2d 1092 (9th Cir. 1991) ..................................................................... 41 P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111 (2d Cir.
2008)........................................................................................ 44n, 57, 68 Perez v. Danbury Hosp., 347 F.3d 419 (2d Cir. 2003) ...................... 42, 72 Perez v. Westchester County Dep’t of Corr., 587 F.3d 143 (2d Cir. 2009)
............................................................................................................. 41n R.C. Walley, 390 F. Supp. 2d 1030 (M.D. Ala. 2005) .............................. 56 Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481 (2d Cir.
1999)...................................................................................................... 41 Rolland v. Cellucci, 138 F. Supp. 2d 110 (D. Mass. 2001) ...................... 50 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) ............... 52n
Shelby Cnty., Ala. v. Holder, 12-96, 2013 WL 3184629 (U.S. June 25, 2013).................................................................................................... 40n
State of New York v. Blank, 27 F.3d 783 (2d Cir. 1994) ........................ 47 Thompson v. United States HUD, 404 F.3d 821 (4th Cir. 2005) ........... 52 Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979)
............................................................................................................. 75n United States v. Armour & Co., 402 U.S. 673 (1971) ............................. 42 United States v. Dupree, 706 F.3d 131 (2d Cir. 2013) ........................... 84 United States v. Local 1804-1, Int'l Longshoremen’s Ass’n, 44 F.3d 1091
(2d Cir. 1995) ........................................................................................ 88 United States v. Sec’y of Hous. & Urban Dev., 239 F.3d 211 (2d Cir.
2001)...................................................................................................... 42 Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013 (6th Cir.
7 U.S.C. § 2019(f), (g) (1976) ................................................................. 49n Family Educational Rights and Privacy Act of 1974 (“FERPA”), 20
U.S.C. § 1232g ...................................................................................... 13 Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C.
17A Am Jur 2d Contracts § 616 .............................................................. 55 American Heritage Dictionary ................................................................ 48 Rules
Fed. R. App. P. 4(a)(1)(A) .......................................................................... 2 Fed. R. App. P. 28(b) ................................................................................ 6n Fed. R. App. P. 30(b)(1) ........................................................................... 2n
Court of Appeals Jurisdiction: The Court of Appeals has
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The appeal
was taken from the district court’s denial of the Class’s motion, dated
August 12, 2010.
Timeliness of Appeal: The class timely filed their notice of appeal
in the district court on September 3, 2010. See Joint Appendix1 (“JA”)
at 3387-8; Fed. R. App. P. 4(a)(1)(A).
Final Judgment: This appeal is from the district court’s denial of
the Class’s motion for substantial non-compliance. Under the
Agreement the jurisdiction of the court ended on August 12, 2010.
STATEMENT OF THE ISSUES
1. Whether the Court erred in concluding based on the
evidence presented over more than eight years that the Class failed to
prove that the State was in “substantial non-compliance” with the
Agreement entered into by the parties where to succeed the district 1 Although titled a “Joint Appendix,” the appendix filed by the Class with their brief is not “joint” as it did not contain the items designated by the State timely pursuant to Fed. R. App. P. 30(b)(1). Accordingly, the State filed with this court a motion requesting permission to file a Supplemental Appendix and to impose the costs of filing such an appendix on the Class. See Doc. #128. That motion has been referred to the merits panel of this court. See Doc. #135.
The case was subsequently certified as a class action and later settled.
On May 22, 2002, the district court (Chatigny, J.) determined that the
Agreement entered into by the parties was fair and reasonable.
The 14 page Agreement set forth, inter alia, five “goals and
outcomes” involving students with intellectual disabilities. JA 1-14.
The Agreement also called for the establishment of an EAP and
provided that
[t]he jurisdiction of the Court for enforcement of this Agreement will end five (5) years from the empanelling of the [EAP] … except that the Court, for a period of eight (8) years from empanelling of the EAP, shall have jurisdiction to entertain Plaintiffs' motions for substantial non-compliance with this Agreement. In no event shall the Court's jurisdiction over this Agreement exceed eight (8) years beyond the empanelling of the EAP.
JA at 4-5. The parties agree that the EAP was convened for
jurisdictional purposes no later than August 12, 2002. SA 5 n.1. The
Agreement also provided that SDE “shall cooperate with the Plaintiffs’
reasonable requests to provide existing data to enable Plaintiffs to
assess compliance during the five-to-eight year period.” JA 3. The
Agreement also required that the State file four annual reports to be
The action giving rise to this appeal was originally filed in 1991 in
the United States District Court for the District of Connecticut on
behalf of five school-aged children in Connecticut with intellectual
disabilities and their families against the State and certain local school
districts alleging, inter alia, violation of the IDEA, 20 U.S.C.
§ 1412(a)(5)(A). JA 3389; Supp A 1-48. The case was subsequently
certified as a class action by then Chief District Judge Jose A. Cabranes
as “[a]ll mentally retarded school-age children in Connecticut who have
been identified as needing special education and who, on or after
February 20, 1991 are not educated in regular classrooms.” JA 3416.
The case was transferred to Judge Chatigny on November 4, 1994.
JA 3417. In early 2000 the case was tried for several days. JA 3429-
3434. Thereafter – and before the court issued any decision – the
parties engaged in extensive settlement negotiations that concluded in 2 Fed R. App. P. 28(b) provides that an appellee need not provide, inter alia, a statement of the facts “unless the appellee is dissatisfied with the appellant’s statement.” The Class’s statement of facts contains many omissions of material facts in the record that time and space do not permit refuting. More importantly, however, the Class fails to provide critical facts that concern matters raised in Class’s brief.
Although the State continued to deny the Class’s allegations and
admitted no liability, see JA 2, the State and all parties desired a
resolution of the case that was consistent with the requirements of the
IDEA and its implementing regulations. JA 2. To that end, in Section
II of the Agreement the Department agreed to pursue five goals to bring
about a more inclusive, integrated system of public education in
Connecticut for students with intellectual disabilities (“the goals”).
The five goals were articulated as follows:
1. An increase in the percent of students with mental retardation or intellectual disability who are placed in regular classes, as measured by the federal definition (eighty (80) percent or more of the school day with non-disabled students).
2. A reduction in the disparate identification of students with mental retardation or intellectual disability by LEA, by racial group, by ethnic group or by gender group.
3. An increase in the mean and median percent of the school day that students with mental retardation or intellectual disability spend with nondisabled students.
4. An increase in the percent of students with mental retardation or intellectual disability who attend the school they would attend if not disabled (home school).
5. An increase in the percent of students with mental retardation or intellectual disability who participate in school-sponsored extra curricular activities with non-disabled students.
JA 3-4. The Agreement required the State make “meaningful
continuous improvement” with respect to Goals #1 and #4 and
“continuous improvement” with respect to Goals #2, #3 and #5.
C. Jurisdiction (Section III)
Under the title “Continuing Jurisdiction” the Agreement provides:
The jurisdiction of the court for enforcement of this Agreement will end five (5) years from the empanelling of the Expert Advisory Panel (EAP) called for in section IX, except that the Court, for a period of eight (8) years from empanelling of the EAP, shall have jurisdiction to entertain Plaintiffs’ motions for substantial non-compliance with this Agreement. In no event shall the Court’s jurisdiction over this Agreement exceed eight (8) years beyond the empanelling of the EAP. The Defendants shall cooperate with the Plaintiffs’ reasonable requests to provide existing data to enable Plaintiffs to assess compliance during the five-to-eight year period.
JA 4-5 (emphasis added). The Agreement therefore establishes two consecutive periods with
respect to the jurisdiction of the court: a first period lasting
approximately five years (May 22, 2002-August 12, 2007) and a second
consecutive and contingent period lasting three years (August 13, 2007-
August 12, 2010). Most importantly, the Agreement unequivocally
states that the “jurisdiction” of the court “will end” five years from the
coordinate all efforts under this agreement” who “shall serve as the
liaison to members of the” EAP. JA 10. Anne Louise Thompson served
at all times as SDE’s designee under this provision.
F. Expert Advisory Panel (Section IX)
In addition, the Agreement provided for the creation of a four
member EAP chosen by the parties to advise the parties and the Court
regarding issues relating to implementation. JA 11. The Agreement
specifically provided that the Department “will not be bound by either
the individual or collective advice of the EAP.” JA 12. Additionally, the
EAP was to “receive the [4] annual reports prepared” by the
Department and “provide annual written comment to the Court,
plaintiffs and defendants.” JA 5; 12. The State was to pay for all costs
associated with the EAP. JA 13.
III. Post Settlement
A. The First Five Years of the Settlement Agreement
The first five years passed without the Court exercising enforcement
authority.3 As required under the Agreement, the Department and the
3 The Agreement was approved by the court May 22, 2002 and the State began its work prior to August 12, 2002 when the EAP was empanelled. As a result, the first phase of the Agreement exceeded five years.
explaining that under the Family Educational Rights and Privacy Act of
1974 (“FERPA”), 20 U.S.C. § 1232g, 34 C.F.R. Part 99, and the
Agreement, such personally identifiable information could not be
shared.4 JA 3443. The State’s position was supported by a letter from
the United States Department of Education (“USDOE”) written in 2002
to that effect.5 JA 702-705.
In September 2002, the State provided Class counsel and the EAP
4 This would not be the last time, unfortunately, opposing counsel demonstrated a casual attitude with respect to the concerns addressed in FERPA. See,e.g., Supp A 281-283 (Class counsel disclosing during the evidentiary hearing personally identifiable information concerning the identities of minors and failing to move in the district court for redaction of the transcript) 5 The USDOE’s FERPA Compliance Office instructed the State in writing that prior to making personally identifiable information from education records (in this instance the names) available to the plaintiffs under the Settlement Agreement, the State must comply with the notice requirements in 34 C.F.R. § 99.31 (a)(9). Having fulfilled its obligations under the Agreement and provided the Class with all the data, with unique student identifiers so that the Class could analyze the data any way they wished, the State did not undertake at that time the cumbersome and expensive task of seeking to contact every parent or guardian to inform them of the intended disclosure of personally identifiable information, in “sufficient time to permit the parent or eligible student to take appropriate action,” as required by USDOE’s letter. Supp A 234. The State believed that such a cumbersome task would be time consuming, and would take away from the substantive work those assigned to this matter were doing to try to further the goals of the Agreement.
address the 24 targeted school districts being focused on by the State at
that time.6 JA 458. The State discontinued crafting the data system
and proceeded to focus on the 24 districts, providing data to the EAP
and the Class in January 2005 regarding class reduction,
reclassification, exiting data and new class member identification of
these 24 districts. JA 457. Additionally, the State had the 24 districts
provide information regarding reclassification of students three times
annually to assist the State with monitoring. JA 3292-93. The State
also began examining “migration reports” to aid in the investigation of
these students that were reclassified. JA 1444.
Additionally, as discussed infra, in December 2007 the State
provided Class counsel with the first of several annual longitudinal
databases that provided all information to track class members whether
ID or reclassified to another disability category from 1998 through the
life of the Agreement. JA 003296.
6 The 24 districts were selected as follows. The Agreement required that the State provide focused monitoring on 8-12 “most in need” districts. JA 8. The State chose 8 districts. JA 60-62. In April 2003 SDE identified an additional 16 districts “identified as having data for students with [ID] that fell below the state average” in three of four areas. JA 223-24.
Another dispute arose in early 2007. On January 17, 2007 the
class filed a motion seeking an order permitting site visits for some 120
class members at their local schools. JA 3445. The court held a status
conference on the Class’s motion and as a result of that conference the
parties entered into a stipulated discovery order that permitted the
class nearly unfettered access to a sample of school district personnel,
parents, teachers and students. JA 3446; Supp A 60. The State never
filed an objection and the class withdrew its motion on this point. JA
3446.
3. Further Attorneys’ Fees and Costs Despite the fact that the Agreement addressed attorneys’ fees and
costs, the Class also sought further attorneys’ fees and costs, which the
State opposed. Following oral argument those motions were denied
without prejudice on March 30, 2007.7 JA 3446.
7 The Class refiled their requests for further attorneys’ fees and costs and the parties are still actively litigating that issue in the District Court.
LEA’s, and reported such information the following Spring. Supp A
239-240, 241, 279-280. The following example explains the situation
prior to the creation of the longitudinal database. A student reported as
ID in 2003 would have his information shared with Class counsel
pursuant to Section I and would be accounted for in Section II.8 If that
student continued to be classified as ID by his LEA in 2004 his
information would continue to be shared with Class counsel and he
would be reported on for the purposes of the goals and outcomes. But, if
instead that same student was reclassified by his LEA in 2004 to
Learning Disabled (“LD”), his annual reporting information to SDE
would reflect that he was an LD student. As an LD student he would
not be covered in Sections I(2) and (3) and his information would not
have been reported on for purposes of the PJ goals in Section II of the
Agreement. Accordingly, his information would not have been shared
with Class counsel. Supp A 242-243.
However, to be clear, the students who were reclassified by their
LEA’s and remained in special education were reported on annually to
8 Again, in 2005 the parties worked out an agreement which resulted in Class counsel receiving personally identifiable information retroactive to 1998.
Following a conference the court issued a written ruling and order
requiring the parties “confer in good faith in an effort to resolve any
discovery issues. After conferring in good faith, if outstanding discovery
issues still exist, the plaintiffs shall file a motion in which they set forth
with particularity each type of discovery sought and the authority for
granting their discovery request.” Supp A 101.
In June 2008 the Class served upon the State four notices of
deposition, a set of sixteen interrogatories, a request for
production/inspection, and a letter request for an expert review of
class attrition. Supp A 110-111. Via letter of July 3, 2008 the State
responded that – without waiving its position on discovery – it would
provide sworn answers to the request for interrogatories. Supp A 110-
111. On the basis of the Agreement, the State declined all other
requests. 9 Supp A 110-111.
On July 15, 2008 the Class filed a motion seeking discovery and
argued that the EAP had been improperly “discharged.” JA 3451; Supp
9 The State also continued to provide free of charge Class counsel with other materials above and beyond the requirements of the Agreement. See SA 74 (“the defendants have provided and continue to provide the plaintiffs with written discovery”), 89; Supp A 212-214 (listing items produced to Class counsel).
Meanwhile, on April 15, 2009 the Class filed another motion
alleging substantial noncompliance. Supp A 112-121.
4. Voluntary Discovery Provided
a. Depositions Consistent with the court’s suggestion – but without a court
order11 – in 2009 and 2010 the parties conferred regarding discovery in
preparation for an evidentiary hearing on the Class’s motion for
substantial noncompliance. JA 3457.
These discussions were difficult given the parties’ positions.
However, the following relevant ground rules were clearly and explicitly
established in advance of any depositions: (1) The Class was permitted
to depose up to five SDE employees; (2) each such deposition would not
11 The Class took two depositions in January 2010. The parties were unable to agree on a scheduling order for the remaining voluntary discovery and both parties filed motions and proposed orders. JA 3458-59. Two more SDE employees were deposed in February 2010 while the matter was pending. JA 2456, 2611. On February 25, 2010 the court issued a scheduling order. JA 3460. The Class’s fifth and final deposition occurred on March 10, 2010.
exceed one day; and (3) none of the SDE witnesses would produce at
their deposition any materials previously produced.12 Supp A 186-191.
The State agreed to what were supposed to be limited and focused
trial preparation depositions. In that vein, and in good faith, prior to
the taking of any depositions the State suggested employees that might
better assist the Class; opposing counsel did not heed those suggestions.
See Supp A 128-129. The Class deposed five SDE employees. See note
11, supra.
Despite the ground rules, the class was dissatisfied in particular
with the deposition of SDE employee Michael Smith taken on February
8, 2010. See JA 2569-77. At the close of that deposition counsel spoke
with the court and discussed their disagreement. JA 3459. As a result
of the call, and once again solely by agreement, the State agreed that
Mr. Smith would respond to interrogatories prepared by the Class. The
questions contained therein were prepared by the Class’s expert Dr.
Heather Hammer. Supp A 217. The State provided a 23 page response
on March 16, 2010. JA 2904-26.
12 The reason for this requirement was simple: over the years the State had been on the receiving end of numerous requests for materials from Class counsel that SDE had already produced. JA 1431.
A 154, 155-156. On April 14, 2010 the State filed its opposition. On
April 23, 2010 the court granted the Class’s motion. In its ruling, the
court stated for the first time that “the [State was] obliged to maintain
the EAP for the full eight years covered by the settlement agreement.”
Supp A 157-159. The court also instructed the State “to provide the
EAP with documents and data … of a similar nature” to those that had
been provided in the past. Supp A 157-159. Accordingly, on April 14,
2010 the State provided the EAP with a “Progress/Data Report to the
Expert Advisory Panel.”13 See JA 3288-3386.
The EAP prepared a final report on May 6, 2010 which was filed
with the court the following day. JA 641-655; JA 3463. The Class filed
a response on June 9, 2010. JA 3466-67. At the request of Judge
Chatigny, the State filed its response on June 28, 2010. JA 3468.
IV. Evidentiary Hearing Prior to the evidentiary hearing the Class filed at least two in
limine motions. One of those motions sought to preclude the State from
13 The EAP reported to the parties that in order to prepare a report by May 7, 2010 the members would need to receive the relevant materials by April 14, 2010. Accordingly, and in the interest of good faith, the State prepared and sent such materials to the EAP notwithstanding their pending objection.
At the close of the Class’s case and after Class counsel indicated
that they had rested, the State moved for Judgment as a Matter of Law
pursuant to Fed. R. Civ. P. 52(c). JA 3468; Supp A 222-223, 224, 225-
227.
V. District Court Ruling
On August 12, 2010 – the last day of the court’s jurisdiction –
Judge Chatigny denied the Class’s motion for substantial
noncompliance and explained that “[a] memorandum opinion containing
findings and conclusions will follow.” JA 3470. On August 6, 2012 the
district court issued a 62 page memorandum, which was amended
non-substantively two days later.14 JA 3474.
The Class filed a Notice of Appeal on September 3, 2010. JA 3387.
SUMMARY OF ARGUMENT
The Class failed to demonstrate that the State was in “substantial
non-compliance” with the Agreement entered into by the parties in
2002. Applying the correct legal standard, the district court evaluated
the State’s entire performance over the life of the Agreement and 14 On August 3, 2012 the Class filed a writ of mandamus compelling the district court to issue its ruling. Because the district court issued its decision the following business day a panel of this court denied the class’s petition for a writ of mandamus.
Viewing the State’s responsibilities through this faulty prism15 no
doubt yielded the arguments made in the Class’s brief here. But, given
the Agreement, those arguments do not hold water and do not change
the fact that the State – in the eyes of the District Judge who oversaw
the case for almost 20 years – was not in “substantial non-compliance”
with the Agreement.
In fact, as the district court found, the record shows that the State
dutifully worked with the Court, the EAP and the Class – in many cases
accommodating requests from the EAP and the Class that went beyond
the Agreement – to forward the goals of the Agreement such that at the
time of the evidentiary hearing Connecticut was second in the nation
for percent of students with ID in regular class placement. JA 3300.
15 This case was filed in 1991 at which time, according to the Class in its complaint, Connecticut “separated children from regular classrooms at the eight highest rate in the nation.” Supp A 40. To the extent Class counsel has over the course of the Agreement not recognized a sea change since the case was filed such a static view is, as recently noted by the Supreme Court, inherently problematic. Cf. Shelby Cnty., Ala. v. Holder, 12-96, 2013 WL 3184629 (U.S. June 25, 2013) (“But history did not end in 1965.”)
1999). In reviewing a district court’s interpretation of the terms of a
settlement agreement, this court review conclusions of law de novo and
findings of fact for clear error. In re Am. Exp. Fin. Advisors Sec. Litig.,
672 F.3d 113, 135 (2d Cir. 2011).
While a consent decree16 is a judicial pronouncement, it is
principally an agreement between the parties and as such should be
construed like a contract. Crumpton v. Bridgeport Educ. Ass’n, 993
F.2d 1023, 1028 (2d Cir. 1993). Federal courts of appeal should “give
deference to the district court's interpretation based on the court's
extensive oversight of the decree….” Officers for Justice v. Civil Serv.
16 Although this case involves a document titled “Settlement Agreement” and not, technically, a consent decree there may be no distinction between the Agreement here and a consent decree. See Perez v. Westchester County Dep’t of Corr., 587 F.3d 143, 151-52 (2d Cir. 2009).
the Agreement and find Defendants are in substantial noncompliance if
any default or shortfall in performance of their responsibilities under
the any term of the Agreement [sic] frustrates those purposes.” Class
Brief 24. The Class also argues that the district court improperly failed
to recognize “the nature and importance of the interest at stake,” here
“the interest of appellant children and the conditions of their public
school programs.”17 Class Brief 23.
First, it should be noted that the Class actually argues several
times that the question here is whether the State was in “substantial
compliance.”18 See Class Brief at 22, 24, 25, 26. But, that is not the
17 The Class asserts that “Defendants had complete control over the level of compliance,” Class Brief 23, a charge that is nearly impossible to harmonize with the individualized requirements of the IDEA and the IEP process as noted by this court. P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 119 (2d Cir. 2008) (“Understandably, courts have recognized some tension between the IDEA’s goal of providing an education suited to a student’s particular needs and its goal of educating that student with his non-disabled peers as much as circumstances allow.”) 18 Plaintiffs motion was filed in the final three year phase of the Agreement. At that time, the only matter on which the court had jurisdiction was consideration of motions for substantial non- compliance. JA at 4-5.
correct standard.19 The Agreement provides that the question is
whether the State was in “substantial non-compliance.”20 JA at 4-5
(emphasis added).
Regardless, the district court properly determined “that the
touchstone of the substantial noncompliance inquiry is whether any
noncompliance frustrated the Agreement’s essential purposes.” SA 6.
This standard comes from a Tenth Circuit case, Joseph A. v. New
Mexico Dep’t of Human Serv., 69 F.3d 1081 (10th Cir. 1005). This was
not error.
With respect to the Agreement’s “essential purposes” the court did
not, as argued by the Class, take a narrow view of the essential purpose
19 The court itself referred to “[t]he Agreement’s substantial compliance standard.” SA at 36. 20 The State did have the right under the Agreement “at any time” to “petition the Court for an end to the Court’s jurisdiction and for dismissal of the matter based on the [State’s] substantial compliance with the terms of the Agreement.” JA 6. Had the State chosen to make such a petition, the State would have had the burden to demonstrate “substantial compliance.” But, the State did not so choose. Rather, the State chose to fulfill its obligations under the Agreement and to allow the Agreement to sunset, a situation logically flowing from the Agreement negotiated by the parties. The Class wishes here to extend and expand the Agreement beyond the negotiated length and, as such, bears the burden of demonstrating that the State was in “substantial non-compliance.”
the State was in non-compliance with the Agreement, and (2) that such
non-compliance was “substantial,” i.e. “considerable in importance,
value, degree, amount or extent.” That is to say, the Class was required
to prove that the State failed to comply with the Agreement and that
failure was very significant. The district court properly applied this
standard and determined that the Class had failed to meet its burden.
SA 8. (“[I]t is undisputed that the State complied with many of its
obligations and the [Class has] not shown that the State’s
noncompliance frustrated an essential purpose of the Agreement.”)
Accordingly, this Court should affirm the district court’s judgment.
This reading of the Agreement’s “substantial non-compliance”
language – and the district court’s application of it – is consistent with
courts’ application of the terms “substantial noncompliance” or
substantial compliance” in civil rights cases.21 Civil rights cases
21 Although counsel could locate no cases involving the IDEA, outside of the civil rights context the term “substantial noncompliance” has been addressed in the context of food stamps. See California v. Block, 663 F.2d 855, 860-61 (9th Cir. 1981) (“Substantial noncompliance may be gross negligence or evidence of gross negligence, but the required showing of serious fault must be made before the state is subjected to liability. Substantial noncompliance is not automatically gross negligence. Congress placed ‘substantial noncompliance’ and ‘gross negligence’ in separate statutory categories, with separate sanctions, 7
implementing the “substantial non-compliance” standard fall within
two general classifications. One line of decisions discusses whether
defendants are in “substantial compliance” or “substantial
noncompliance” with consent decrees in the context of addressing
motions for contempt brought by plaintiffs. In those cases, the district
court properly places the heavy burden on the plaintiffs to show that
the defendants significantly departed from the agreement’s goals as to
require intervention. See, e.g., Fortin v. Comm’r of Mass. Dep’t of Pub.
Welfare, 692 F.2d 790, 795 (1st Cir. 1982))(“‘substantiality’ must
depend on the circumstances of each case, including the nature of the
interest at stake and the degree to which noncompliance affects that
interest.”); see also Rolland v. Cellucci, 138 F. Supp. 2d 110, 112 (D.
Mass. 2001)(placing the burden on plaintiffs where the motion was filed
pursuant to relief provided in the settlement agreement).
For example, Labor/Cmty Strategy Ctr. v. L.A. County Metro.
Transp. Auth., 564 F.3d 1115 (9th Cir. 2009) involved a civil rights
lawsuit regarding public transportation. The parties settled the case
and just before the tenth anniversary of the settlement – at which time U.S.C. § 2019(f), (g) (1976), and the Secretary acted improperly in mingling them.”)
court jurisdiction would expire – the plaintiffs “moved to extend the
duration of the decree on the grounds that [Defendant] MTA had
allegedly failed to comply with the decree's overcrowding provisions.”
Id. at 1116-1117. The district court denied the motion and plaintiffs
appealed. The Labor/Cmty majority noted that “[t]he failure of
substantial compliance with the terms of a consent decree can qualify as
a significant change in circumstances that would justify the decree's
temporal extension.” Id. at 1120-21.22 And, the majority held that the
burden on proving substantial noncompliance lay with the plaintiffs
and involved an overall assessment of defendants’ progress. Id. at 1121.
The majority explicitly rejected the plaintiffs suggested “full
compliance” approach, explaining:
The question is whether there was substantial compliance, a less precise standard that cannot be satisfied by reference to one particular figure, while ignoring alternative information. Our analysis requires we do more than simply count the number of technical deviations from the decree. Instead, we must determine, using a holistic view of all the available information, whether MTA's compliance with the Decree overall was substantial, notwithstanding some minimal level of noncompliance.
22 The consent decree permitted the defendants to file a motion in the last three years to dissolve the consent decree if defendants had, inter alia, “substantially complied” with the consent decree.
Id. at 1122. The majority went on to detail the aspects of the consent
decree that the defendants had met or exceeded and described the level
of noncompliance – although real – as “de minimis.” Id. The majority
also explained that its holding was consistent with two other federal
cases in which the courts reached the opposite conclusion: Thompson v.
United States HUD, 404 F.3d 821, 834 (4th Cir. 2005) (a “near total
failure” of some defendants to comply with their obligations) and David
C. v. Leavitt, 242 F.3d 1206, 1212-13 (10th Cir. 2001)(noting that
defendant was “20 percent in compliance and 80 percent in
noncompliance”).23
Perhaps most importantly as it relates to this case, the
Labor/Cmty majority explained that its holding was “consistent with
the principle that federal court intervention in state institutions is a
temporary measure and may extend no longer than necessary to cure
constitutional violations.” 564 F.3d at 1123. The majority made clear
that it was not enough that “every last wish and hope of the decree was
not achieved.” Id. Rather, the majority explained, it was declining to 23 See also Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1019 (6th Cir. 1994) (holding that noncompliance rates of between 25% and 40% were substantial enough to warrant modification under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 (1992)).
based on a Special Master’s report that the state had met this
requirement and the plaintiffs appealed.
On appeal the Tenth Circuit noted that its job was to “(1) define
the ‘substantial compliance’ standard and (2) then consider whether the
Special Master (and district court) correctly applied that standard to
the facts of the instant case.” 69 F.3d at 1085. The Court noted that
the term was to be construed utilizing contract principles, but that the
phrase “substantial compliance" is “not susceptible of a mathematically
precise definition.” Id. The Court went on to quote favorably the First
Circuit’s opinion in Fortin explaining that a case-by-case analysis is
necessary:
no particular percentage of compliance can be a safe-harbor figure, transferable from one context to another. Like “reasonableness,” “substantiality” must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest.
Id. Additionally, the Court explained the contract law doctrine of
substantial compliance as follows:
simply a doctrine to assist the court in determining whether conduct should, in reality, be considered the equivalent of compliance under the contract. See John D. Calamari & Joseph M. Perillo, The Law of Contracts 11-15, at 454 (3d ed.
1987) (“If a party has substantially performed, it follows that any breach he may have committed is immaterial.”).
Id. at 1085-86 (citations omitted). The Court noted that “the touchstone
of the substantial compliance inquiry is whether Defendants frustrated
the purpose of the consent decree – i.e. its essential requirements” and
proceeded to evaluate the purpose of the consent decree before the
court. Id. at 1086; see also 17A Am Jur 2d Contracts § 616 (noting that
“substantial compliance with the requirements of a contract is the legal
equivalent of full compliance”).
Finding that the proceedings below before the district court did
not sufficiently address this issue, the Court remanded the case with
the following instructions/critera:
On remand, the court should begin with the essential purposes of the consent decree which we have quoted from the Decree’s preamble, and it should then consider the specific steps set forth in the consent decree by which those purposes may be satisfied. To the extent that any stipulated criteria has not been met, the court must determine whether that failure is immaterial to the overall objectives or, on the other hand, whether it had a material adverse impact upon the overall processing and placement of children into permanent homes. Because the consent decree sets forth specific criteria to be met, those criteria must be respected unless a deviation can be shown not to have a material effect upon the overall performance of the Department in processing and placing children into permanent homes.
“continuous improvement” or “meaningful continuous improvement” the
Class spoke only in terms of the State not actualizing adequate
quantitative changes associated with the goals. See JA 648-650; JA
668-69; JA 728-40. The Class never argued that the State needed to
create a link between “meaningful continuous improvement” of the
goals and those items specified in Section V of the Agreement related to
supplementary aids and services.25
Additionally, the Class’s view of what was meant by “meaningful”
was elaborated by Class counsel to the court at the Fairness Hearing in
May 2002. Judge Chatigny inquired as to what the parties intended
and Class counsel responded that the standard was “a higher level or
more stringent oversight”, “holding the state to a higher standard”,
“more in the area of like due deliberate speed would be.” JA 18-19.
Class counsel’s explanations do not mention educational benefit nor
appropriate use of supplementary aids and services, as the Class now
argues to this Court. The Agreement language is more quantitative in
nature, associated with greater numeric level or a larger change in the 25 Additionally, it should be noted that the district court found the State met its obligations under Section V. SA 49-53. Thus, even if Section II includes the qualitative aspects of Section V as argued on appeal by the Class, it is unclear how that requires reversal here.
progress of the goal (“higher standard”); or the speed/rate of attaining
the goal in relation to the other goals (“due deliberate speed”); or the
amount of attention paid to improving a goal as compared to the other
goals (“more stringent oversight”). This differentiated understanding of
the goals, quantitative in nature, was the standard that the State and
court understood at the Fair Hearing for the Agreement.
Shortly thereafter, in October 2002 – after the Agreement was
approved – the Class further identified a quantitative explanation only
for what would be an appropriate benchmark for the regular class
placement goal intended for the State to demonstrate “meaningful
continuous improvement.” The Class argued:
Plaintiffs submit that a reasonable statewide goal should provide for an increase in the placement of students with mental retardation over the first four years of the Settlement Agreement to 40% of the students with this classification. This would require an increase by roughly 30% of the 3600 class members not already in regular classes over the next four years – roughly the placement of 6 additional students with mental retardation in regular classes per school district over a four year period.
JA 649. (And, for good measure, it is worth noting here that the State
updates to that list during the life of the Agreement. Instead, the
[State] provided a meaningless list of identification numbers each year
and refused to provide information that [the Class] could use to track
ID students.” Class Brief 52. As explained above, the lists containing
identification numbers were sufficient.
More importantly, as explained above, the parties agreed upon a
process in 2005 consistent with FERPA26 such that Class counsel was
provided with all information (including names) on ID students. That
information was retroactive to 1998 and was updated annually. JA
3291. The Class omits this fact and leaves this Court with the
impression that the State never provided names (and other information)
to Class counsel. Additionally, the Class also fails to mention that they
reached an agreement with the State on this issue. The district court
made clear in its decision that he did not rule on such issues. See SA
22. And such an agreement arguably waives the Class’s ability to raise
it at this time.
26 Even assuming the Agreement could be read to require the State to violate FERPA, such a provision would be void. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979)
With respect to the reclassified students, in December 2007 (with
almost three years remaining on the Agreement) the State shared all
information on the reclassified students with Class counsel via the
longitudinal database discussed above. And, of course, with respect to
the reclassified students the court found on the basis of the evidence
presented – contrary to the Class’s assertions – “that the Department’s
efforts have extended and improved integrated placements for all
students with ID and the plaintiffs have not shown that the
reclassification rate provides a basis for a finding of substantial
noncompliance.”27 SA at 57-58. Ms. Thompson’s testimony alone that
SDE continued to monitor and report on all special education students
supports this finding. Supp A 231-233, 252. And, once again, in
rendering its decision the district court considered the reclassified
students in its analysis of the State’s performance under the goals. See
SA at 18 n.7.
Similarly, the Class’s assertion that the State’s “noncompliance
[with Section I] resulted in massive attrition of class members who were
27 It bears noting that this entire discussion by the district court occurred under the sub-heading entitled “The Record Shows that the State Met Its Commitments.” SA at 47.
Similarly, the court heard testimony that the State offered to “sit down
with [the Class’s experts] and help them understand the [longitudinal]
database” an offer the Class did not accept. See Testimony of Michael
Smith, pp. 1490, lines 14-18, Supp A at 276.
Suffice it to say, at all times during the Agreement the State
worked tirelessly to accommodate the Class’s many requests despite a
well-founded belief that fulfilling such requests was pulling state
resources away from pursuing the goals of the Agreement. See, e.g.,
Supp A 205-214 (a ten page document listing all the data provided to
plaintiffs); see also Supp. A 228-229. Furthermore, the district court
heard evidence that this cooperation was one sided. Anne Louise
Thompson testified:
I can't say I ever felt that [plaintiffs and defendants] were partners. I always felt that we were striving to make a huge difference in the state and continually advance the cause, and I didn't feel that we were trying -- we were partnering in that and I had hoped that that would be more of where we were with things. I also thought we were being challenged rather than working together.
Supp A 229. Emblematic of the lack of cooperation, Class counsel never
shared the results of their expert site visits conducted in the spring of
2007 despite the SDE’s expressed interest in them.28 JA 3296. Over
the course of the Agreement Class counsel repeatedly asserted without
any justification that the State didn’t embrace the goals of the
Agreement. The district court did not err in finding otherwise.
E. The District Court Did Not Err in Concluding that The Class Was Not Permitted Conventional Discovery in the Final Three Years of the Settlement Agreement
As noted above, in an interlocutory ruling the district court found
that under the Agreement the Class was not entitled to formal
discovery in the final three years. The State did provide Class counsel
with sworn answers to interrogatories as well as data.
The court’s ruling was based on the “Continuing Jurisdiction”
section of the Agreement. The Agreement establishes two consecutive
periods with respect to the jurisdiction of the district court: a first
period lasting approximately five years and a second consecutive and
contingent period lasting exactly three years. JA 4-5.
The Agreement provides that during the first five years the
district court shall have “jurisdiction…for enforcement of this
28 And, of course, the failure of Class counsel to share contemporaneously the findings with the State make any claims of concern regarding those findings ring hollow.
157-159 (emphasis added) . Thus, even if the original report was
inappropriately withheld – which it certainly was not – the materials
sought by the State were shared with the Class some two months before
the evidentiary hearing and pursuant to the court’s order. Accordingly,
the Class was not unfairly prejudiced by any withholding of this
document.
Additionally, as noted by Judge Chatigny, the final EAP report
that was ordered and considered by the Court utilized the State’s report
and the Class did not challenge admission of the EAP report as an
exhibit.29 SA 128-29. Indeed, the Class filed a motion seeking that the
EAP be reconvened. It was therefore not an abuse of discretion for the
Court to admit it.
On this point it is also necessary to point out the hypocrisy
contained in the Class’s argument. The Class claims that they were
“deprived . . . of the opportunity to conduct discovery into” some walk-
through assessments conducted by the State from 2006-2007 mentioned
in the report. Class Brief 62. The Class argues that the district court 29 It is also worth noting with respect to prejudice that Judge Chatigny stated that he was “not going to decide the case based on this report” and that the Class would have a chance to present argument about the various parts of the report. SA 129.
progress would have been made “if not for the termination of the EAP.”
SA 57.
CONCLUSION For the foregoing reasons the decision of the district court denying
the Class’s motion for substantial noncompliance should be
AFFIRMED.
Respectfully submitted, DEFENDANTS-APPELLEES STATE OF CONNECTICUT ET AL GEORGE JEPSEN ATTORNEY GENERAL
By: /s/ Darren P. Cunningham Assistant Attorney General Federal Bar No. ct25380 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel: 860.808.5318 Fac: 860.808.5347 [email protected]
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE
REQUIREMENTS
Case Name: P.J., et al. v. CT Board of Education, et al.
Docket No.: 10-3586-cv
1. This brief is 18,333 words and complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), as amended by Order dated July 11, 2013 [ECF No. 164] granting Appellees permission to file an oversized brief not to exceed 19,000 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6) as Appellees’ brief has been prepared in a proportionally spaced Century Schoolbook, 14 point, using Microsoft Word 2010.
/s/ Darren P. Cunningham, Esq. Attorney for Defendants-Appellees
I hereby certify that true and accurate copies of the foregoing brief
were served by first class mail, postage prepaid, by Brescia’s Printing
Service in accordance with Rule 25 of the Federal Rules of Appellate
Procedure on this 12th day of July, 2013, to the Clerk of this Court and
the following counsel of record:
David C. Shaw, Esq. The Law Offices of David C. Shaw, LLC 34 Jerome Ave., Suite 210 Bloomfield, CT 06002 Tel. 860-242-1238 Fac. 860-242-1507 [email protected] Frank J. Laski, Esq. Mental Health Legal Advisors Committee 399 Washington St., 4th Floor Boston, MA 02108 Tel. 617-338-2345 Fac. 617-338-2347