UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALTAGRACIA SANCHEZ, et al., : : Plaintiffs, : Civil Action No.: 18-975 (RC) : v. : Re Document No.: 15 : OFFICE OF THE STATE : SUPERINTENDENT OF EDUCATION, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT

I. INTRODUCTION

In 2016, the D.C. Office of the State Superintendent of Education (“OSSE”) issued

regulations that imposed minimum education requirements for certain childcare providers in

Washington. Plaintiffs in this case promptly filed suit challenging those requirements, but the

Court dismissed their complaint based on an unusual combination of standing, ripeness, and

mootness problems. Presently before the Court is Plaintiffs’ motion for leave to file an amended

complaint. For the reasons provided below, the Court denies this motion, as the new complaint

fails to cure the original’s deficiencies.

II. BACKGROUND

As the Court explained in greater detail in its previous opinion dismissing Plaintiffs’

complaint, OSSE is the state education agency for the District of Columbia and is “authorized to

‘formulate and promulgate rules necessary to carry out its functions.’” Sanchez v. Office of State

Superintendent of Educ. (Sanchez I), Civ. No. 18-975,

, at *1 (D.D.C. Feb. 26,

2019) (quoting

(b)(11)); see also

. That authority includes the power to regulate “staff qualification[s]” at any “child development facility,”

(b)(11) —defined as a “center, home, or other structure that provides care and

other services, supervision, and guidance for children, infants, and toddlers on a regular basis”

but that is not “a public or private elementary or secondary school engaged in legally required

educational and related functions or a pre-kindergarten education program,”

§ 7-2031(3). See

id. § 7-2036(a)(1)(A) (delegating regulatory power to Mayor); Mayor’s Order 2009-130,

(July 16, 2009) (Mayor delegating power to OSSE).

In December 2016, OSSE issued regulations that set minimum education requirements

for staff at these child development facilities. See generally

,640–14,813 (Dec.

2, 2016). Most of the requirements did not take immediate effect, however. Depending on the

position, the regulations built in a grace period of anywhere between three and six years before

the requirements became binding. See, e.g.,

, 14,799 (original versions of

D.C. Mun. Regs. tit. 5-A1, §§ 164.1(b), (c) and 170.2(a)(1)(2)). The regulations also permitted

OSSE to grant two different kinds of waivers. First, certain types of staff positions—although

not all—would be eligible for experience waivers, available to individuals who had

“continuously served” in the relevant position for ten or more years as of December 2016. E.g.,

D.C. Mun. Regs. tit. 5A-1 §§ 164.3, 165.4. Second, hardship waivers could be granted if (1)

“[t]he demonstrated . . . economic impact or hardship on the Facility or staff member [was]

sufficiently great to make immediate compliance impractical despite diligent efforts;” (2) “[t]he

[f]acility or staff member [was] meeting or exceeding the intent of the regulation for which the

waiver [was] requested;” and (3) “[t]he health and welfare of staff and children [we]re not

jeopardized.” Id. § 106.1.

2 Two of the three Plaintiffs in this case hold childcare development facility staff positions

that are covered by the OSSE regulations. Altagracia Sanchez has operated a licensed daycare

out of her house since 2006, which currently cares for nine children. Am. Compl. ¶¶ 161–63,

ECF No. 15-2. According to the regulations, this makes her an “expanded home caregiver,”

required to hold “an associate’s or more advanced degree . . . with a major in early childhood

education, early childhood development, child and family studies or a closely related field.”

D.C. Mun. Regs. tit. 5-A1, § 170.2(a). When the regulations first went into effect, expanded

home caregivers had until December 2, 2019 to earn the requisite degree, and they were not

eligible for experience waivers. See

(original version of D.C. Mun. Regs.

tit. 5-A1, § 170.2). But in June 2018, after Plaintiffs filed their original complaint, OSSE

amended the regulations—extending the grace period for expanded home caregivers to

December 2, 2023 and making experience waivers available to those that were otherwise

eligible. See D.C. Mun. Regs. tit. 5-A1, § 170.2(a), (c); 65 D.C. Reg. 7034–7036 (June 29,

2018).

The second Plaintiff, Dale Sorcher, is what the regulations call a “teacher in a child

development center.” See D.C. Mun. Regs. tit. 5A-1, § 165. She works with children up to age

three at a licensed daycare center associated with a Jewish preschool. Am. Compl. ¶¶ 192–95.

Sorcher already has a bachelor’s degree and two master’s degrees, but none of them are in a field

related to early childhood, and she does not have the requisite experience for an experience

waiver. See id. ¶¶ 192, 201. As a result, the regulations require her to either seek a hardship

waiver or obtain twenty-four college credit hours related to early childhood. D.C. Mun. Regs.

tit. 5-A1, §§ 165.1(b), 165.4. When the regulations were first issued, Sorcher had until

December 2, 2020 to earn the credits, see

(original version of D.C. Mun.

3 Regs. tit. 5-A1, § 165.1), but after the June 2018 amendments, she now has until December 2,

2023, see D.C. Mun. Regs. tit. 5-A1, § 165.1.

Unlike Sanchez and Sorcher, the third Plaintiff, Jill Homan, does not work at a child

development facility and is not subject to the OSSE regulations. Instead, Homan and her partner

have two young children and use a daycare center in D.C. where the staff members will need to

meet the new education requirements. See Am. Compl. ¶¶ 233–236. She is concerned “that day-

care providers who are exhausted, stressed, and overwhelmed by having to attend college, work

full time, and care for their own families” will either “provide worse care than those who do not

have to worry about attending school,” id. ¶ 251, or simply leave their jobs altogether, see id.

¶ 248.

In both their original complaint and their proposed amended one, Plaintiffs raise three

challenges to the OSSE regulations: (1) they allege that the education requirements exceed the

authority lawfully delegated to OSSE; (2) they claim that the requirements violate their Fifth

Amendment substantive due process rights to pursue honest livings and make reasonable

childcare choices; and (3) they say that the regulations draw “arbitrary and irrational”

distinctions between childcare providers, in violation of the Fifth Amendment’s guarantee of

equal protection. Am. Compl. ¶¶ 264–89. But in dismissing the original complaint, the Court

never reached the merits of these claims. It instead concluded that the claims were not

justiciable as asserted by any of the three Plaintiffs. Homan, the Court held, lacked standing

because the injuries that she alleged were based on conjecture and could not be traced to the

OSSE regulations. See Sanchez I,

, at *6. Sanchez’s claims were either moot

or unripe because, in light of the June 2018 amendments, she was eligible for an experience

4 waiver but had not yet applied. Id. at *8. And Sorcher’s claims were unripe because she had

until December 2023 to seek a hardship waiver, for which she had not yet applied. Id.

Plaintiffs now argue that their proposed amended complaint solves the problems that the

Court previously identified. The new complaint alleges that Homan’s daycare center has

“become more expensive under the college requirement,” Am. Compl. ¶ 252, and that staff

members have now begun to leave to avoid having to comply with the requirement, see id.

¶¶ 249–50. Sorcher, the proposed amended complaint says, is not interested in seeking a

hardship waiver because, even if one were granted, it would only apply to her current employer;

she wants “the freedom to work anywhere in the child-care field for anyone.” Id. ¶ 218; see also

id. ¶¶ 215–17. Finally, Sanchez, the proposed amended complaint clarifies, has been granted an

experience waiver, meaning she no longer has to comply with the education requirement. Id.

¶¶ 189–91; see also Pls.’ Reply Supp. Mot. Am. Compl. at 5, ECF No. 9. But according to

Plaintiffs, this does not moot Sanchez’s claims because she will have to apply to renew her

waiver in three years, and because she continues to seek nominal damages. Unsurprisingly,

Defendants—OSSE and the District of Columbia itself—oppose Plaintiffs’ motion for leave to

amend. They argue that all of Plaintiffs’ claims remain non-justiciable for the same reasons

provided in the Court’s decision dismissing the original complaint.

III. ANALYSIS

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, courts “should freely give

leave” to amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). But that

“[g]enerous standard notwithstanding, courts may deny leave to amend for such reasons as

‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

5 of allowance of the amendment, [or] futility of amendment.” Connecticut v. U.S. Dep’t of

Interior,

(D.D.C. 2019) (second alteration in original) (quoting Foman v.

Davis,

(1962)). This case concerns only futility, which is an appropriate basis

to deny leave “if the proposed claim[s] would not survive a motion to dismiss.” James Madison

Ltd. v. Ludwig,

(D.C. Cir. 1996).

Thus, in reviewing Plaintiffs’ motion, “the Court is required to assume the truth of the

allegations in the amended complaint and construe them in the light most favorable to the

movant.” Flaherty v. Pritzker,

(D.D.C. 2017) (citing Caribbean Broad. Sys. v.

Cable & Wireless PLC,

(D.C. Cir. 1998)). The Court need not, however,

“accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual

allegations.” Gregorio v. Hoover,

(D.D.C. 2017) (quoting Rann v. Chao,

(D.D.C. 2001)). And because here the deficiencies with the previous

complaint went to subject matter jurisdiction, the allegations “bear closer scrutiny” than they

would in resolving a Rule 12(b)(6) motion to dismiss for failure to state a claim. Bennett v.

Ridge,

(D.D.C. 2004) (internal quotation marks omitted) (quoting Grand

Lodge of Fraternal Order of Police v. Ashcroft,

, 13–14 (D.D.C. 2001)). With

these principles in mind, the Court addresses each of the three Plaintiffs in turn.

A. Homan

The Court begins with Homan, whose claims it previously dismissed for lack of standing.

To establish standing, plaintiffs must “clearly . . . allege facts demonstrating” three elements.

Spokeo, Inc. v. Robins,

(2016) (omission in original) (quoting Warth v.

Seldin,

(1975)). First, “they must have suffered an injury in fact that is

‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” N.B. ex

6 rel. Peacock v. District of Columbia,

(D.C. Cir. 2012) (citing Lujan v. Defenders

of Wildlife,

, 560–61 (1992)). Second, that injury must be “fairly traceable to the

challenged conduct of the defendant.” Spokeo,

. And third, “it must be

‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable

decision.” Defenders of Wildlife,

(quoting Simon v. E. Ky. Welfare Rights Org.,

(1976)).

In its prior opinion, the Court concluded that Homan had not satisfied any of these three

elements. With respect to the first, the Court explained that “crediting any one of Homan’s

claims of injury require[d] a great deal of speculation—speculation that her childcare providers

[would] not be able to earn the [required college] credits; speculation that those providers

[would] become tired and stressed and consequently provide worse care; or speculation that her

chosen daycare center [would] choose to raise its prices as a result of the regulations.” Sanchez

I,

, at *6. And as for the second and third elements, the Court explained that

“even if Homan’s claimed injuries were to occur,” there would be no way of knowing “whether

they were caused by the OSEE regulations so as to be redressable by injunctive relief.”

The proposed amended complaint now asserts slightly more specific factual allegations,

but it suffers from largely the same problems. As an initial matter, the revisions are limited: on

top of what was already said in the original complaint, the new complaint adds solely the

allegations that Homan’s daycare center has in fact now raised its prices, see Am. Compl. ¶ 240,

and that childcare providers at the center have begun to leave due to the education requirements,

including “two of . . . Homan’s favorite teachers,” see id. ¶ 249; see also id. ¶ 250. These

allegations eliminate some of the speculation necessary with the original complaint, but

significant conjecture remains necessary. Homan still, for instance, has not alleged facts that

7 show how the staff departures have resulted in worse care for her children. Thus, even assuming

the staff departures were caused by the OSSE regulations, the Court is unable to conclude that

they have inflicted a particularized injury on Homan that satisfies the first standing element.

The price increase allegation, meanwhile, is more concrete, but Homan has not alleged

specific facts that satisfy the causation or redressability requirements. Proving those latter two

elements is “considerably harder” for Homan than the typical litigant because her injury claims

rely on the “action[s] of unrelated third parties” who are not before the Court. Abdulhawa v.

U.S. Dep’t of Treasury,

(D.D.C. 2017) (alteration in original) (quoting

Arpaio v. Obama,

(D.C. Cir. 2015)). Indeed, Homan must present “substantial

evidence of a causal relationship between the government policy and the third-party conduct,

leaving little doubt as to causation and the likelihood of redress.” Arpaio,

(quoting Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,

(D.C. Cir. 2004));

see also Sanchez I,

, at *5 (“In those cases where third-party choices are

central, ‘it becomes the burden of the plaintiff to adduce facts showing those choices have been

or will be made in such manner as to produce causation and permit redressability of injury.’”

(quoting Defenders of Wildlife,

)).

Homan has not alleged such facts in the proposed amended complaint. She merely says

that prices have gone up at her daycare center and that she is “worr[ied] that [it] will continue to

become more expensive under the college requirement.” Am. Compl. ¶ 252. She has asserted

no facts, however, on which the Court can infer that the OSSE regulations caused the price

increase. The Court has no way of knowing, then, whether an injunction would lead the daycare

to lower its prices—or even prevent it from raising prices further in the future. Homan therefore

8 has not made the requisite showings for causation or redressability. She continues to lack

standing.

B. Sanchez

The Court turns next to Sanchez, whose claims it previously dismissed as either moot or

unripe. Because she subsequently received an experience waiver, her claims are now clearly

moot. As the Court explained in its prior opinion, mootness “occurs when the issues presented in

a case are no longer live or the parties lack a legally cognizable interest in the outcome.”

Sanchez I,

, at *4 (internal quotation marks omitted) (quoting Conservation

Force, Inc. v. Jewell,

(D.C. Cir. 2013)). “This occurs when, among other

things, the court can provide no effective remedy because a party has already ‘obtained all the

relief that [it has] sought.’” Conservation Force,

(alteration in original)

(quoting Monzillo v. Biller,

(D.C. Cir. 1984)).

Sanchez has obtained all of the relief that she sought here. Having acquired an

experience waiver, she suffered no injury as a result of the OSSE regulations, and an order

enjoining the regulations’ enforcement is unnecessary. See Am. Compl. at 42 (requesting

“permanent injunction enjoining Defendants and their officers, employees, or agents from

implementing, applying, or taking any action whatsoever pursuant” to the regulations). Sanchez

contends that her claims are not moot because her waiver is revocable and will need to be

renewed in three years. But Sanchez has alleged no facts that cast doubt on her ability to renew

her waiver when that time comes. Indeed, if she obtained an experience waiver now, she will

have even more experience when she seeks a renewal. Thus, “it seems a ‘merely hypothetical

possibilit[y]’” that she will ever be “subject to the education requirements.” Sanchez I,

, at *7 (alteration in original) (quoting Am. Bar Ass’n v. FTC,

(D.C.

9 Cir. 2011)). “That hypothetical possibility is not enough to preserve a live case or controversy

before this Court.”

Sanchez also argues that her claims are not moot because she has requested an award of

nominal damages in the amount of one dollar. See Pls.’ Reply at 5; Am. Compl. at 42. Circuits

are split on whether such a request, in and of itself, prevents mootness, and neither the Supreme

Court nor the D.C. Circuit has weighed in definitively. Compare Flanigan’s Enters., Inc. of Ga.

v. City of Sandy Springs,

(11th Cir. 2017) (en banc) (“[A] prayer for

nominal damages cannot save an otherwise moot case.”), with, e.g., Morgan v. Plano Indep. Sch.

Dist.,

(5th Cir. 2009) (“This court and others have consistently held that a

claim for nominal damages avoids mootness.”); see also People for Ethical Treatment of

Animals, Inc. v. Gittens,

(D.C. Cir. 2005) (“We assume, without deciding, that

a district court’s award of nominal damages—$1—prevents a case from becoming moot on

appeal.”).

This Court need not reach the issue here, however, because Sanchez has failed to state a

valid claim for nominal damages. “[N]ominal damages ‘are not compensation for loss or injury,

but rather recognition of a violation of rights.’” Calhoun v. DeTella,

(7th Cir.

2003) (quoting Redding v. Fairman,

(7th Cir. 1983)); see also Abrams v.

Commc’ns Workers of Am., AFL-CIO,

(D.D.C. 1998) (“The term nominal

damages means a trivial sum—usually one cent or one dollar—awarded to a plaintiff whose legal

right has been technically violated but who has proved no real [pecuniary] damage.” (alteration

in original) (quoting Chesapeake & Potomac Tel. Co. v. Clay,

(D.C. Cir.

1952))). In this case, Sanchez’s rights were never violated because she was never subject to the

OSSE regulations. Rather, she brought suit to prevent what she believed was an imminent threat

10 to her rights—a violation that would occur when the regulations went into effect and she was

required to possess a college degree. But as Sanchez herself appears to recognize, that violation

never came to pass because of the long grace period and her ability to obtain a waiver years in

advance. Indeed, in arguing that she is entitled to nominal damages, Sanchez says that the

“college requirement has already injured her,” but she never identifies how any legal right was

infringed by the mere issuance of the regulations or by the waiver requirement itself. Pl.’s Reply

at 5 (emphasis omitted). Instead, Sanchez focuses on the “time it took [her] to put together her

application for an experience waiver.”

“She seeks,” in her own words, “retrospective relief

in the form of nominal damages to compensate for” the hours that she spent.

(quoting Am.

Compl. ¶ 256).

As the Court said above, though, “nominal damages are divorced from any compensatory

purpose.” Bayer v. Neiman Marcus Grp., Inc.,

(9th Cir. 2017). They “are

awarded to vindicate rights” that have been infringed in the past.

(quoting Cummings v.

Connell,

(9th Cir. 2005)). Because Sanchez has drawn no nexus between the

time she purportedly spent on the waiver and any legally protected right, she has not shown that

nominal damages are warranted. Nominal damages thus would not save her claims from

mootness.

C. Sorcher

Finally, the Court turns to Sorcher, whose claims were previously dismissed as unripe.

The ripeness doctrine, the Court explained in its prior opinion, counsels “against ‘premature

adjudication.’” Sanchez I,

, at *3 (quoting Nat’l Park Hosp. Ass’n v. Dep’t of

Interior,

(2003)). It is “meant ‘to prevent the courts . . . from entangling

themselves in abstract disagreements over administrative policies, and also to protect . . .

11 agencies from judicial interference until an administrative decision has been formalized and its

effects felt in a concrete way by the challenging parties.”

(quoting Nat’l Park Hosp. Ass’n,

538 U.S. at 807–08).

“[W]hether a case is ripe hinges on a ‘two-pronged test . . . that first considers the “fitness

of the issues” for judicial decision and then looks at any hardship that would befall the parties if

the court withheld consideration.”

at *7 (quoting Kaufman v. Nielsen,

(D.C. Cir. 2018)). In its prior opinion, the Court concluded that Sorcher failed both prongs of

that test because the extended December 2023 deadline to meet the requirements gave her a lot

of time to seek a hardship waiver. The availability of hardship waivers, the Court reasoned,

could “have a bearing on the merits of some of Plaintiffs’ claims,” as the merits of those claims

would “depend on who actually, in practice, ha[d] to meet the education requirements.” Id. at

*8. In other words, “absent more information about hardship waivers . . . the issues [were] not

yet fit for judicial decision.” Id. And because a hardship waiver represented another “avenue[]

of relief potentially available to [Sorcher] outside of the judicial process,” any hardship inflicted

on her would be minimal. Id. at *9.

The proposed amended complaint does not change those conclusions. As was the case

with Homan, Sorcher’s revisions are minimal. The new complaint clarifies that “day-care

facility employees cannot apply directly for hardship . . . waivers for themselves.” Am. Compl.

¶ 73. “Instead, day-care facility directors or administrators apply for hardship or experience

waivers that apply to the facilities, not to individual workers.” Id. ¶ 74. According to Sorcher,

she does not wish “to ask her current employer to apply for a hardship waiver on her behalf,

because if she leaves her job, her waiver would not follow her.” Id. ¶ 215. “Sorcher does not

want a hardship waiver that lets her work solely in one position with one employer for the rest of

12 her career.” Id. ¶ 217. “Instead, she seeks the freedom to work anywhere in the child-care field

for anyone.” Id. ¶ 218.

Contrary to Sorcher’s assertion, however, a hardship waiver would not impair her

freedom to work elsewhere. Indeed, as the proposed amended complaint acknowledges, if she

wanted to change jobs some time down the road and her new position was subject to the OSSE

regulations, she could have her new employer seek a waiver on her behalf. See id. ¶ 75. And of

course, whether Sorcher would ever need to obtain a second hardship waiver for a new position

is speculative. The premature adjudication of such hypothetical possibilities is exactly what the

ripeness doctrine is intended to prevent.

As for Sorcher’s current employer, the proposed amended complaint suggests that it has

not applied for a hardship waiver yet. Things might be different if Sorcher had requested that her

employer apply and the employer had refused, but Sorcher admits that she has not even asked,

see id. ¶ 215, even though waiver forms are now available online, see id. ¶ 72. Meanwhile,

Sorcher does not claim that she must imminently begin taking classes in order to to meet the

education requirement by December 2023. She merely alleges that she has spent time

researching various program options. See id. ¶¶ 220–24. This effort, she says, “has been

exhausting, and she would like to stop.” Id. ¶ 225.

That is not enough to overcome the ripeness issues that the Court identified in its prior

opinion, though. Without more, the state of the affairs is the same as it was then: “Sorcher [has]

other avenues of relief potentially available . . . outside of the judicial process,” and she has not

alleged that she must “enroll in courses before the waiver applications become available.”

Sanchez I,

, at *9. The Court again concludes that “deferring review” until

Sorcher has an opportunity to pursue a waiver “will allow many of the issues raised ‘to take on a

13 more definite form.’”

at *8 (quoting Kaufman,

). Sorcher’s claims thus

continue to be unripe.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to amend their complaint is DENIED

because amendment would be futile. 1 An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: July 8, 2019 RUDOLPH CONTRERAS United States District Judge

1 In the alternative, Plaintiffs ask the Court to alter or amend its prior order under Rule 59)(e) “to clarify the status of all claims.” Pls.’ Mem. Supp. Mot. Am. Compl. at 7, ECF No. 25- 1. If clarity is all that Plaintiffs seek, the Court would simply point them to its prior opinion. The conclusion of that opinion said that the “complaint” was dismissed without prejudice. Sanchez I,

, at *9. Because Defendants had sought prejudicial dismissal, the Court granted their motion to dismiss “in part.” Plaintiffs seem to now argue that their non- delegation claim could remain justiciable, but the Court already rejected that contention in the prior opinion. The Court explained that “the doctrine of prudential ripeness ensures that Article III courts make decisions only when they have to, and then, only once.”

at *3 (quoting Am. Petroleum Inst. v. EPA,

(D.C. Cir. 2012)). Because “proceeding . . . in a piecemeal fashion” would undermine that purpose, the Court explained that it was “appropriate to reserve judgment on all of Plaintiffs’ claims until it ha[d] more facts.” Id. at *8 (emphasis added). For the reasons provided above, that conclusion remains true now with respect to the proposed amended complaint. To the extent that Plaintiffs seek more than clarity under Rule 59(e), they have come nowhere near showing that such “extraordinary relief” is warranted. Slate v. Am. Broad. Cos., Inc.,

(D.D.C. 2013). Indeed, Plaintiffs have failed to identify “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”

(quoting Messina v. Krakower,

(D.C. Cir. 2006)). Thus, Plaintiffs’ motion to alter or amend the judgment is also DENIED.

14