Judge rejects D.C.'s demand to end lawsuit over care for disabled citizens

By Henri E. Cauvin
Washington Post Staff Writer
Thursday, April 8, 2010

D.C. Attorney General Peter Nickles offered Wednesday to restart settlement talks in a three-decade-old class action lawsuit over the city's care of people with developmental disabilities.

The conciliatory step by the city's top lawyer came at the conclusion of an otherwise contentious hearing called by federal judge Ellen Segal Huvelle, who earlier in the day rejected the District's demand to end the case, Evans v. Fenty.

Huvelle has been urging the District to settle with the plaintiffs, who have successfully argued that the District has systematically disregarded a court order and demanded that an outside administrator be brought in to run the Department on Disability Services (DDS).

But little progress has been made since the judge's latest entreaty a few months ago. Last week, the District submitted a unilateral plan to exit the case, prompting Huvelle to call Wednesday's hearing and demand that Nickles appear in person.

Nickles stood to address the judge and thanked her for the invitation, starting a series of exchanges between two of the more blunt members of the D.C. Bar.

Nickles, who has spearheaded the city's effort to end the Evans case and other long-running class actions over social services and special education, has been faulted by more than one judge for his hard-line legal tactics. In court, he took issue with Huvelle's critique. "This castigation of our effort or my efforts is unseemly, I think," Nickles told Huvelle.

Huvelle, meanwhile, repeatedly reminded Nickles that the plaintiffs had proved their case of noncompliance, and that consequently the District was in no position to dictate the terms of a settlement. "The problem is, you've lost the case," she said.

The suit was filed in 1976 over conditions at Forest Haven, which was the city's institution for people with severe developmental disabilities. Forest Haven was closed almost two decades ago, but the city failed to provide adequate services to many former Forest Haven residents, and the litigation has lived on.

Lawyers for the plaintiffs, former Forest Haven residents, sought a receiver to run the agency. The court's special masters have proposed a monitor who could enforce compliance with the court's orders.

But as they try close the door on the class actions, Nickles and Mayor Adrian M. Fenty have resisted anything that would appear to be a step backward, even as DDS struggles to meet the benchmarks set out in a 2001 court ruling. To Nickles, the appointment of an outside administrator for DDS would be tantamount to a court takeover of the department.

Since the U.S. Supreme Court said last year that lower courts should take a more flexible approach to cases aimed at reforming agencies and institutions, the District has aggressively argued that the decision mandates a swift end to Evans v. Fenty and other similar lawsuits it faces.

But this week, two federal judges, including Huvelle, disagreed.

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