Sanchez v. Office of the State Superintendent of Education

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALTAGRACIA SANCEZ, et al., :
:
Plaintiffs, : Civil Action No.: 18-975 (RC)
:
v. : Re Document No.: 9
:
OFFICE OF THE STATE :
SUPERINTENDENT OF EDUCATION, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Together, the doctrines of standing, ripeness, and mootness serve a common purpose: to

ensure that federal courts resolve only “Cases” and “Controversies” within the meaning of the

Constitution. U.S. Const. art. III, § 2. This case presents the Court with questions involving all

three doctrines. The case arises out of regulations promulgated in 2016 by the D.C. Office of the

State Superintendent of Education (“OSSE”) that impose minimum education requirements on

certain childcare providers that operate in Washington. Plaintiffs are two childcare providers and

one parent who bring a number of challenges to those education requirements. As the Court will

explain below, however, it is unable to reach the merits of Plaintiffs’ challenges at this juncture.

The parent Plaintiff, who is not herself subject to the regulations, lacks standing because her

asserted injuries are merely conjectural. The childcare provider Plaintiffs’ claims, meanwhile,

are either moot or unripe. This is because when OSSE first promulgated the regulations, it

provided that the education requirements would not take effect for many years and that waivers

would be available under certain circumstances. These protections were then expanded after
Plaintiffs initiated this lawsuit. Consequently, as things currently stand, both Plaintiffs will be

permitted to continue working as childcare providers until December 2023, and they may seek

waivers in the interim. Because this state of affairs leaves Plaintiffs’ challenges unfit for judicial

adjudication at this time, the Court dismisses their claims without prejudice.

II. BACKGROUND

Housed within the Executive Office of the Mayor, OSSE “serve[s] as the state education

agency” for the District of Columbia, D.C. Code § 38-2601.01, and is authorized to “formulate

and promulgate rules necessary to carry out its functions,” id. § 38-2602(b)(11). This authority

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

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 is not “a public or private

elementary or secondary school engaged in legally required educational and related functions or

a pre-kindergarten education program,” id. § 7-2031(3). See id. § 7-2036(a)(1)(A) (delegating

regulatory power to Mayor); Mayor’s Order 2009-130, 56 D.C. Reg. 6883 (July 16, 2009)

(Mayor in turn delegating power to OSSE).

Pursuant to its mandate, OSSE issued regulations on December 2, 2016 that set minimum

education requirements for childcare staff at these child development facilities. See generally 63

D.C. Reg. 14,640–14,813 (Dec. 2, 2016). The requirements did not become immediately

binding for most childcare professionals, though; depending on the kind of staff position at issue,

the new regulations generally provided a grace period of anywhere between three and six years.

See, e.g., 63 D.C. Reg. 14,786, 14,799 (original versions of D.C. Mun. Regs. tit. 5-A1,

§§ 164.1(b), (c) and 170.2(a)(1)(2)). And the regulations provided that OSSE could waive

compliance with any of the education requirements if it was presented with clear and convincing

2
evidence that (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 facility 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.” D.C. Mun. Regs. tit. 5A-1, § 106.1. The regulations also

provided that certain types of staff positions, though not all, would be subject to experience

waivers, available to individuals who had, as of December 2016, “continuously served” in the

relevant staff position for ten or more years. Id. §§ 164.3, 165.4.

Two of the three Plaintiffs in this case are subject to the new education requirements.

Plaintiff Altagracia Sanchez is what the regulations deem an “expanded home caregiver.” See

generally id. §§ 169–71. Since 2006, she has run a licensed daycare out of her house, which

currently cares for nine children. Compl. ¶¶ 143–45, ECF No. 1. Originally from the Dominican

Republic, Sanchez has a law degree from the Universidad Autonoma de Santo Domingo.

Compl. ¶¶ 137–38. But Sanchez never went to college in the United States, so when the

regulations first went into effect, they required her to obtain by December 2, 2019 an

“associate’s or more advanced degree from an institution accredited by an agency recognized by

the U.S. Secretary of Education or the Council for Higher Education Accreditation, with a major

in early childhood education, early childhood development, child and family studies or a closely

related field.” 63 D.C. Reg. 14,799 (original version of D.C. Mun. Regs. tit. 5-A1, § 170.2); see

also Compl. ¶¶ 153–54. Such a degree would require roughly sixty credit hours of classes,

which according to Sanchez, would take at least five years for her to earn as a part-time student.

Compl. ¶ 157. Sanchez’s only other option at the time the regulations first took effect was to

seek a hardship waiver, as the regulations did not make experience waivers available to

3
expanded home caregivers. See 63 D.C. Reg. 14,799 (original version of D.C. Mun. Regs. tit. 5-

A1, § 170.2).

Plaintiff Dale Sorcher is what the regulations refer to as a “teacher in a child development

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

a licensed daycare center associated with a Jewish preschool. Compl. ¶¶ 173–78. Sorcher

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

to early childhood. As first promulgated, the OSSE regulations did make experience waivers

available to childhood development center teachers, but Sorcher had only six years of continuous

experience as a teacher as of December 2016. See 63 D.C. Reg. 14,791 (original version of D.C.

Mun. Regs. tit. 5-A1, § 165.4); Compl. ¶ 194. Consequently, the regulations required her to

obtain twenty-four college credit hours related to early childhood by December 2, 2020, or seek

a hardship waiver. See 63 D.C. Reg. 14,791 (original version of D.C. Mun. Regs. tit. 5-A1,

§ 165.4).

Unlike Sanchez and Sorcher, the third Plaintiff, Jill Homan, is not herself subject to

OSSE’s regulations. Homan is a consumer of childcare services rather than a provider: her

young daughter attends a licensed daycare center where the staff members will need to meet

OSSE’s new education requirements. Compl. ¶¶ 204, 212. Homan “is afraid that the caregivers

she trusts will not be able to comply with the college requirement and will lose their jobs.”

Compl. ¶ 214. And she worries “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

provide worse care than those who do not have to worry about attending school.” Id. ¶ 215.

The three Plaintiffs brought this lawsuit against OSSE and the District of Columbia itself

in April 2018. Seeking declaratory and injunctive relief, the complaint alleged that the education

4
requirements (1) exceeded the authority lawfully delegated to OSSE; (2) violated their Fifth

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

childcare choices; and (3) drew “arbitrary and irrational” distinctions between childcare

providers, in violation of the Fifth Amendment’s guarantee of equal protection. Compl. ¶¶ 228–

53. When the complaint was filed, neither Sanchez nor Sorcher had applied for a hardship

waiver because their understanding was that OSSE would not make the waiver applications

“available until the college requirement was ‘closer’ to coming into effect—2019 for expanded-

home day-care caregivers . . . and 2020 for day-care center teachers.” Id. ¶ 61. In the meantime,

Sanchez and Sorcher claimed that they would need to begin enrolling in college courses

immediately in order to give themselves a chance of meeting their respective deadlines—

December 2019 for Sanchez and December 2020 for Sorcher.

In June 2018, however, after Plaintiffs filed their complaint, OSSE amended its

regulations to extend both of these deadlines to December 2023. 65 D.C. Reg. 7034–7036 (June

29, 2018); see also D.C. Mun. Regs. tit. 5-A1 §§ 165.1(d), 170.2(a)(2). The amendments also

made experience waivers available to expanded home caregivers like Sanchez. 65 D.C. Reg.

7037; see also D.C. Mun. Regs. tit. 5-A1 § 170.2(c). Relying heavily on these changes to the

regulations, Defendants responded to the complaint by filing a motion to dismiss, in which they

argue primarily that the Court lacks subject matter jurisdiction because Plaintiffs do not have

standing. But according to Defendants, even if Plaintiffs do have standing, the complaint still

fails to adequately state a claim. Each of these reasons, Defendants say, independently require

the Court to dismiss Plaintiffs’ claims with prejudice.

5
 III. ANALYSIS

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, courts must dismiss any

claim over which they lack subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 12(b)(6),

by contrast, requires courts to dismiss any claim upon which relief could not be granted even if

jurisdiction was proper. Fed. R. Civ. P. 12(b)(6). When these two rules are invoked together, a

court must first address the issues encompassed by Rule 12(b)(1), as those issues implicate the

court’s ability to hear the case at all. See, e.g., Schmidt v. U.S. Capitol Police Bd., 826 F. Supp.

2d 59, 64–65 (D.D.C. 2011).

That ability is strictly constrained; “[i]t is . . . presumed that a cause lies outside [federal

courts’] limited jurisdiction, and the burden of establishing the contrary rests upon the party

asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(citations omitted). In deciding whether the plaintiff has met this burden, courts “‘accept as true

all of the factual allegations contained in the complaint’ and draw all reasonable inferences” in

the plaintiff’s favor. Schmidt, 826 F. Supp. 2d at 65 (quoting Brown v. District of Columbia, 514

F.3d 1279, 1283 (D.C. Cir. 2008)). But courts need not “accept inferences unsupported by the

facts alleged or legal conclusions that are cast as factual allegations.” Gregorio v. Hoover, 238

F. Supp. 3d 37, 44 (D.D.C. 2017) (quoting Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001)).

And the allegations in the complaint actually “‘bear closer scrutiny in resolving a 12(b)(1)

motion’ than in resolving a 12(b)(6) motion for failure to state a claim,” Grand Lodge of

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (quoting 5A

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350). Indeed,

because courts “have an independent obligation to determine whether subject-matter jurisdiction

exists,” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006), they are not limited to the arguments

6
raised by the parties when considering a Rule 12(b)(1) motion, and they are free to consider

materials outside of the pleadings, see, e.g., Jerome Stevens Pharms. v. FDA, 402 F.3d 1249,

1253 (D.C. Cir. 2005). See also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time

that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

Among the issues properly considered in the context of a Rule 12(b)(1) motion to dismiss

for lack of subject matter jurisdiction are the doctrines of standing, mootness, and ripeness. All

three originate out of Article III’s requirement that federal courts entertain only “cases” or

“controversies.” See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). Standing

“limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress

for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). It “requires the party

who invokes the court’s authority to ‘show that he personally has suffered some actual or

threatened injury as a result of the putatively illegal conduct of the defendant.’” Valley Forge

Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472

(1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)).

Ripeness, on the other hand, focuses primarily “on the timing of the action rather than on

the parties seeking to bring it.” Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir.

1997). By counseling against “premature adjudication,” it is meant “to prevent the courts . . .

from entangling themselves in abstract disagreements over administrative policies, and also to

protect . . . agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park Hosp.

Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbot Labs. v. Gardner, 387

U.S. 136, 148–49 (1967)). Ripeness is not entirely distinct from Article III standing, though;

part of the doctrine overlaps with standing, which, as discussed in greater detail below, requires

7
that the plaintiff’s alleged injury be either actual or imminent. See, e.g., Am. Petroleum Inst. v.

EPA, 683 F.3d 382, 386 (D.C. Cir. 2012). “In other words, if a threatened injury is sufficiently

‘imminent’ to establish standing, the constitutional requirements of the ripeness doctrine will

necessarily be satisfied.” Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1428

(D.C. Cir. 1996). But ripeness then contains a non-constitutional, non-jurisdictional component.

“Even if a case is constitutionally ripe, . . . there may also be ‘prudential reasons for refusing to

exercise jurisdiction.’” Am. Petroleum Inst., 683 F.3d at 386 (internal quotation marks omitted)

(quoting Nat’l Park Hosp. Ass’n, 538 U.S. at 808). This “doctrine of prudential ripeness ensures

that Article III courts make decisions only when they have to, and then, only once.” Id. at 387.

Finally, mootness, like ripeness, also implicates the timing of the action. Mootness’s

primary concern is not prematurity, however. Mootness instead occurs when the issues

presented in a case “are no longer live or the parties lack a legally cognizable interest in the

outcome.” Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (quoting

Larsen v. U.S. Navy, 525 F.3d 1, 3 (D.C. Cir. 2008)). “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.” Id. (alteration in original) (quoting Monzillo v. Biller, 735 F.2d 1456, 1459

(D.C. Cir. 1984)).

Here, Defendants made no mention of mootness or ripeness in their initial motion to

dismiss; they argued only that Plaintiffs lack standing. But mootness and ripeness are addressed

in Plaintiffs’ opposition and Defendants’ reply, and as the Court has already said, it has an

independent obligation to ensure that jurisdiction is proper. Arbaugh, 546 U.S. at 514; see also

Nat’l Park Hosp. Ass’n, 538 U.S. at 808 (“[E]ven in a case raising only prudential concerns, the

8
question of ripeness may be considered on a court’s own motion.”). All three doctrines are

therefore properly before the Court.

A. Standing

The Court begins its discussion with standing, as it represents Defendants’ primary

argument for dismissal, and because, unlike ripeness and mootness, “[s]tanding is assessed ‘on

the facts as they exist[ed] when the complaint [was] filed.”” Cause of Action Inst. v. Tillerson,

285 F. Supp. 3d 201, 205 (D.D.C. 2018) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

569, n.4 (1992)). To have standing, “(1) [Plaintiffs] must have suffered an injury in fact that is

‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical’; (2) the

injury must be ‘fairly traceable to the challenged action of [Defendants]’; and (3) ‘it must be

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

decision.’” N.B. ex rel. Peacock v. District of Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012)

(quoting Defenders of Wildlife, 504 U.S. at 560–61). Where, as here, the lawsuit challenges the

legality of government action, the nature of the standing inquiry depends largely on “whether the

plaintiff is himself an object of the action . . . at issue.” Defenders of Wildlife, 504 U.S. at 561.

When a plaintiff is subject to the challenged regulation or policy, “there is ordinarily little

question that the [government] action . . . has caused him injury, and that a judgment preventing

. . . the action will redress it.” Id. at 561–62. But when a “plaintiff’s asserted injury arises from

the government’s allegedly unlawful regulation . . . of someone else, much more is needed.” Id.

at 562. Standing in those cases is not foreclosed entirely, “but it is ordinarily ‘substantially more

difficult’ to establish.” Id. (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).

These general principles carry the day here: As childcare providers subject to the new

education requirements, Sanchez and Sorcher have standing. Homan, on the other hand, who is

9
not subject to the OSSE regulations, has failed to make the requisite showing. Beginning with

Sanchez and Sorcher, it is important to note that they do not merely assert that they may lose

their jobs some time years down the road. Rather, they both allege that the new education

requirements will force them to take action in the near future. Sanchez claims that even if she

had the time and money to attend college part-time—which she says she does not—it would take

her at least five years to obtain the necessary associate’s degree. See Compl. ¶ 159. Sorcher

similarly asserts that she “would need to immediately begin searching for college programs that

would meet her scheduling needs to determine (among other things) how much money she would

need to set aside for tuition.” Id. ¶ 191.

These claims were plausible when the complaint was filed. Sanchez at that time had

about a year and a half to, as a part-time student, earn sixty credit hours, which normally takes

full-time students at least two years. Sorcher’s task was somewhat easier—two and a half years

to obtain twenty-four credits hours—but she too would be enrolled part-time. To meet the

original deadline, she would need to enroll immediately and then take roughly three classes a

year. Both Sanchez and Sorcher were technically eligible for hardship waivers, but they alleged

that the waiver applications would be unavailable until 2019 or 2020. Compl. ¶ 61. By then,

they would have had to begin taking (and paying for) classes.

In arguing that Sanchez and Sorcher lack standing, Defendants rely mostly on events that

occurred after the complaint was filed. They argue, for example, that the amended regulations

promulgated in June 2018 make it so Sanchez is now eligible for an experience waiver. See

Mem. in Support of Defs.’ Mot. to Dismiss (“Defs.’ Mot. to Dismiss”) at 8, ECF No. 9-1. And

they contend that both Sanchez and Sorcher now have until December 2023 to earn the necessary

college credits. See, e.g., Defs.’ Reply in Support of Mot. to Dismiss (“Defs.’ Reply”) at 3, ECF

10
No. 12. This extension, Defendants contend, makes it so Sanchez’s and Sorcher’s injuries are no

longer imminent. But Defendants’ arguments fail for purposes of standing because of a reason

that the Court has already provided above: Standing is determined based on the facts as they

existed at the time the complaint was filed—not on intervening circumstances. E.g., Cause of

Action Inst., 285 F. Supp. 3d at 205. Here, when the complaint was filed, Sanchez had until

December 2019 to earn the required degree, without the possibility of an experience waiver, and

Sorcher had until December 2020. Amendments to the regulations had been proposed, as the

complaint itself acknowledges, see Complaint ¶¶ 40, 51, but those amendments were not law yet.

Plaintiffs had to proceed based on what was law at the time.

On the facts as they existed when the complaint was filed, Sanchez’s and Sorcher’s

injuries are concrete and particularized, as well as actual and imminent. Those injuries are also

traceable to Defendants’ conduct, because in the absence of the OSSE regulations, Sanchez and

Sorcher would not be legally required to take steps to enroll in college. The injuries are

redressable by a favorable decision too: if the Court were to enjoin enforcement of the

regulations they would no longer need to enroll. Thus, Sanchez’s and Sorcher’s claims, as

alleged in the complaint, satisfy all three standing requirements.

The analysis for Homan is different, however, because she is unable to assert the same

injuries. Her alleged injuries are instead as follows: First, she says that she is “worried . . .

because she is afraid that the caregivers she trusts will not be able to comply with the college

requirement and will lose their jobs.” Id. ¶ 214. Second, she claims to “worry 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 provide worse care than those who do not have to

11
worry about attending school.” Id. ¶ 215. And third, she claims to “worry that day care will

become more expensive because of the college requirement.” Id. ¶ 216.

All three of these supposed injuries, like most asserted by individuals who are not

themselves subject to the government action that they are challenging, depend on how non-

parties will respond to the law or policy at issue—specifically here, how Homan’s unnamed

childcare providers will respond to OSSE’s regulations. See Defenders of Wildlife, 504 U.S. at

562. In those cases where third-party choices are central, “it becomes the burden of the plaintiff

to adduce facts showing that those choices have been or will be made in such manner as to

produce causation and permit redressability of injury.” Id.

Homan has not met that burden. She has plead no specific facts showing that her

childcare providers have responded or will respond to OSSE’s regulations in the way that she

claims. Rather, by the terms of the complaint itself, her alleged injuries are nothing more than

generalized “worrie[s]” about the regulations’ possible effects. E.g., Compl. ¶ 214. Indeed,

crediting any one of Homan’s claims of injury requires a great deal of speculation—speculation

that her childcare providers will not be able to earn the credits; speculation that those providers

will become tired and stressed and consequently provide worse care; or speculation that her

chosen daycare center will choose to raise its prices as a result of the regulations. Absent more

specific factual allegations, the Court has no way of knowing whether any of these outcomes are

likely to take place, and it is forced to conclude that Homan’s injuries are merely “conjectural”

and “hypothetical”—insufficient for purposes of standing. E.g., DaimlerChyrsler, 547 U.S. at

344.

Plus, even if Homan’s claimed injuries were to occur, the Court would not know whether

they were caused by the OSSE regulations so as to be redressable by injunctive relief. See, e.g.,

12
id.; West v. Lynch, 845 F.3d 1228, 1237 (D.C. Cir. 2017) (“When conjecture is necessary,

redressability is lacking.”). If, for example, her daycare center was to consider charging more,

on what facts would the Court be able to infer that it was the result of the education

requirements? And on what facts could the Court be confident that an injunction of the

education requirements would prevent the daycare center from ultimately raising its prices? Or

if Homan’s childcare providers started showing signs of fatigue and stress, how would the Court

know that it was due to their attempts to comply with the OSSE regulations? And how would

the Court know that an injunction would ultimately lead them to feel restored and relaxed? That

the Court is unable, based on the present iteration of the complaint, to answer these questions

shows that Homan has not established any of the three standing requirements. The Court

therefore lacks jurisdiction and must dismiss her claims.

The Court will not, however, at this juncture dismiss her claims with prejudice, as

Defendants have requested. “Dismissal with prejudice is the exception, not the rule, in federal

practice,” Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012), and it “is warranted only

when . . . the allegation of other facts consistent with the challenged pleading could not possibly

cure the deficiency,” id. (omission in original) (quoting Belizan v. Hershon, 434 F.3d 579, 583

(D.C. Cir. 2006)). Here, as the above discussion likely suggests, the Court doubts that Homan

will ever be able to plead sufficient facts to establish standing, but the Court is not ready to call it

impossible. And so, for now, dismissal will be only without prejudice.

B. Mootness and Ripeness

Having concluded that Sanchez and Sorcher established standing based on the facts at the

time the complaint was filed, the Court must next consider whether dismissal is warranted in

light of subsequent events. As explained above, in June 2018, after Plaintiffs filed their

13
complaint, OSSE issued amendments to its regulations that are relevant here in two ways. First,

the amendments gave Sanchez and Sorcher additional time to meet the education requirement:

both deadlines were extended to December 2023. 65 D.C. Reg. 7034–7036; see also D.C. Mun.

Regs. tit. 5-A1 §§ 165.1(d), 170.2(a)(2). Second, the amendments made home caregivers like

Sanchez eligible for experience waivers. 1 65 D.C. Reg. 7034–7036; see also D.C. Mun. Reg. tit.

5-A1 § 170.2(c).

These changes raise concerns related to both mootness and ripeness—which is admittedly

somewhat odd. Ripeness, the Court has already explained, is usually concerned with lawsuits

that were filed prematurely, see, e.g., Nat’l Park Hosp. Ass’n, 538 U.S. at 807–08, whereas

mootness generally occurs when the suit was ripe at the time it was initiated but, due to

intervening circumstances, the plaintiff “obtain[s] all the relief it has sought,” making it so the

1
It should be noted that the new provision providing experience waivers to expanded
home caregivers contains an apparent typo. The provision states that those who have
accumulated the requisite continuous time served “may submit an application to OSSE for a
waiver of the qualification requirements in Subsection 164.1.” D.C. Mun. Reg. tit. 5-A1
§ 170.2(c) (emphasis added). But § 164.1 provides the qualification requirements for individuals
employed as child development center directors—not expanded home caregivers. In other
words, read literally, the amended provision provides eligible expanded home caregivers an
exemption from requirements to which they are not actually subject—requirements that happen
to be more demanding than those to which they are subject. Because such an interpretation of
the amended provision would render the provision meaningless, and because neither party
advocates for such an interpretation, the Court reads the provision to mean that eligible
individuals “may submit an application to OSSE for a waiver of the qualification requirements in
Subsection [170.2],” which is the subsection applicable to home caregivers. See, e.g., Chickasaw
Nation v. United States, 534 U.S. 84, 90–91 (2001) (using “common sense” to conclude that
mistaken “cross-reference [wa]s simply a drafting mistake” that did “not warrant rewriting the
remainder of the statute’s language”); Owner-Operator Indep. Drivers Ass’n v. United Van
Lines, LLC, 556 F.3d 690, 694 (9th Cir. 2009) (“[A] narrow exception to the principle of rigid
adherence to the plain meaning of a statute is the rare case of a ‘scrivener’s error’ that produces
an ‘absurd result.’”); United States v. Coatoam, 245 F.3d 553, 557–58 (6th Cir. 2001)
(effectively correcting mistaken cross-reference because reading the statute literally would
“produce[] an absurd result”).

14
court is unable to provide an effective remedy, Schmidt v. United States, 749 F.3d 1064, 1068

(D.C. Cir. 2014).

Here, Sanchez and Sorcher did not file prematurely, nor have they received their

requested relief. But for a case to become moot, the plaintiff need not necessarily obtain full

relief. A case is also moot if “new legislation has clearly altered the posture of the case,” such

that “there is no longer a live ‘case or controversy’ before th[e] court.” American Bar Ass’n v.

FTC, 636 F.3d 641, 644 (D.C. Cir. 2011). And though ripeness typically involves early filings,

the doctrine is meant to prevent premature adjudication. So if intervening circumstances make it

so resolution of the issues would be premature, ripeness concerns arise. Ultimately, whether 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.” Kaufman v. Nielsen, 896 F.3d 475, 484 (D.C. Cir. 2018) (quoting Abbot Labs.,

387 U.S. at 149).

With all of this in mind, the Court begins with an examination of Sanchez. That she is

now eligible for an experience waiver “clearly alter[s] the posture of the case” and thus renders

her claims moot. Am Bar Ass’n, 636 F.3d at 644. Indeed, although the June 2018 amendments

do not provide Sanchez all of the relief that she seeks—they do not definitively relieve her of the

obligation to comply with the education requirements—they come awfully close: if she is

ultimately granted a waiver, she will no longer be suffering any injury whatsoever due to the

OSSE regulations. As far as the Court can tell, Sanchez is a good candidate for the waiver: she

has the requisite ten years of continuous experience, see Compl. ¶ 143. Absent specific factual

allegations, then, that cast doubt on Sanchez’s prospects at receiving the newly available waiver,

it seems a “merely hypothetical possibilit[y]” that she would be denied the waiver and remain

15
subject to the education requirements. Am. Bar Ass’n, 636 F.3d at 647. That hypothetical

possibility is not enough to preserve a live case or controversy before this Court. 2 Cf. id.

(holding case moot when plaintiffs had challenged an agency policy statement that purported to

interpret an agency rule promulgated pursuant to a statute that had been amended after the

complaint was filed, on the grounds it was a “merely hypothetical possibilit[y]” that the agency

would promulgate new rules pursuant to the newly amended statute).

And even if the new availability of an experience waiver did not moot Sanchez’s claims,

it would render those claims unripe. In evaluating the first prong of the ripeness test—whether

the issues presented are fit for judicial decision—the Court must consider whether “postponing

review would allow the issue[s] to take on a more definite form.” Kaufman, 896 F.3d at 483.

Postponement here would do just that. Indeed, the merits of Sanchez’s claims often depend

heavily on whom the education requirements cover. For example, part of the basis of her equal

protection claim is that the OSSE regulations “draw an arbitrary and irrational distinction

between day-care center providers and expanded home day-care providers.” Compl. ¶ 250. The

Court would be far better positioned to assess the reasonableness of any such distinction if the

2
Sanchez argues that if her claims are moot, an exception to the mootness doctrine
applies—that exception being for cases that involve a defendant’s “voluntary cessation” of the
challenged action. See Pls.’ Opp’n to Mot. to Dismiss at 6–7, ECF No. 11 (citing City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). But the voluntary cessation
exception does not apply when it is “absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass’n,
393 U.S. 199, 203 (1968)). Such is the case where, as here, the government’s cessation of the
challenged activity is formally codified into law. See Sossamon v. Lone Star State of Tex., 560
F.3d 316, 325 (5th Cir. 2009) (“Without evidence to the contrary, we assume that formally
announced changes to official government policy are not mere litigation posturing.”); cf. Larsen,
525 F.3d at 4–5 (holding case moot where plaintiffs never alleged that government would
reinstitute the now-abandoned policy that plaintiffs challenged).

16
Court were presented with facts regarding how OSSE granted experience waivers. But the Court

has no such facts at this time.

Similar uncertainty arises due to the other relevant aspect of the June 2018 amendments:

the amendments’ extension of both Sanchez’s and Sorcher’s deadlines to December 2023.

Sorcher’s claims are therefore unripe too. Critically, the newly extended deadline gives both

Plaintiffs far more time to seek a hardship waiver. Compared to experience waivers, the text of

the OSSE regulations provide less clarity about when hardship waivers will be granted, but

Sanchez and Sorcher are both eligible to apply. And as was the case with Sanchez’s potential

experience waiver, the availability of hardship waivers may have a bearing on the merits of some

of Plaintiffs’ claims. Another basis for Plaintiffs’ equal protection claim, for instance, is that the

OSSE regulations effectively “require[] more early-childhood courses for day-care providers

who already have college degrees than for those who do not.” Compl. ¶ 251. This result may

prove anomalous, however—and thus insignificant for purposes of an equal protection

challenge—if individuals like Sorcher who have multiple advanced degrees were freely granted

hardship waivers. See, e.g., Decatur Liquors, Inc. v. District of Columbia, 478 F.3d 360, 363

(D.C. Cir. 2007) (“[I]t is inherent in the nature of regulation that some people and businesses will

be treated differently from others,” and when the classifications at issue are “not inherently

suspect,” they “need be supported by only a rational basis.”). Likewise, the availability of

hardship waivers may very well have implications for Plaintiffs’ substantive due process claim,

the merits of which will hinge on whether there is a “reasonable fit” between OSSE’s purpose in

promulgating the regulations and “the means chosen to advance that purpose.” Karn v. U.S.

Dep’t of State, 925 F. Supp. 1, 13 (D.D.C. 1996). Here, whether the fit is reasonable will in turn

17
depend on who actually, in practice, has to meet the education requirements, and that is difficult

to know absent more information about hardship waivers.

To be sure, certain aspects of Plaintiffs’ complaint are unlikely to benefit from further

factual development. For example, the claim that the regulations exceeded the authority lawfully

delegated to OSSE has nothing to do with the availability of hardship or experience waivers. But

recall that the purpose of the ripeness doctrine is to “ensure[] that Article III courts make

decisions only when they have to, and then, only once.” Am. Petroleum Inst., 683 F.3d at 387.

That purpose would not be served by proceeding here in a piecemeal fashion—considering

certain issues now while postponing review of others. And it certainly would not be served by

adjudicating the claims of individuals whose injuries are now speculative in light of regulatory

changes. The Court thus thinks it appropriate to reserve judgment on all of Plaintiffs’ claims

until it has more facts. Because deferring review will allow many of the issues raised “to take on

a more definite form,” Kaufman, 896 F.3d at 483, the Court concludes that the first prong of the

ripeness test is not satisfied for either Sanchez or Sorcher: the issues are not yet fit for judicial

decision.

As for the second prong—the hardship inflicted on the parties by deferred resolution—

little further discussion is necessary. As the above analysis should already make evident, both

Sanchez and Sorcher have other avenues of relief potentially available to them outside of the

judicial process. Sanchez can seek both a hardship waiver and an experience waiver, and

Sorcher can seek a hardship waiver. According to the present (in many ways outdated)

complaint, waiver applications will become available in 2019 and 2020—well before the new

December 2023 deadline. See Compl. ¶ 61. To the extent that the new deadline still forces

Sanchez or Sorcher to enroll in courses before the waiver applications become available, there is

18
a straightforward way to minimize the resulting hardship: dismissal of the complaint without

prejudice so that Plaintiffs have the option of seeking leave to file an amended complaint.

Indeed, as the Court said earlier, dismissal without prejudice is the default rule in federal

litigation. See, e.g., Rudder, 666 F.3d at 794. The Court thinks that it is at least possible here

that Sanchez and Sorcher could cure the deficiencies in the complaint by pleading new facts that

address the June 2018 amendments and the results of any waiver requests (or delays in acting

upon such requests).

To briefly summarize, then, based on the present iteration of the complaint, Sanchez’s

claims are moot because her new eligibility for an experience waiver alters the posture of her

case. And if Sanchez’s claims are not moot, both her claims and Sorcher’s claims are, in any

event, unripe, because the June 2018 amendments provide the two Plaintiffs nearly five years to

fulfill the education requirements, and they may each seek waivers in the meantime. Deferring

adjudication until Sanchez and Sorcher have an opportunity to pursue those waivers will allow

the issues raised in their complaint to take on a more definite form. Having said that, the Court’s

view on postponing review may change if Plaintiffs are able to allege specific facts showing that

they continue to suffer actual or imminent injuries notwithstanding the benefits provided by the

June 2018 amendments. The Court therefore dismisses their claims without prejudice.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN PART, and

the complaint is DISMISSED WITHOUT PREJUDICE. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: February 26, 2019 RUDOLPH CONTRERAS
United States District Judge

19