Consumer v. Glover ( 1993 )

March 31, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1550
No. 92-1638
CONSUMER ADVISORY BOARD, ET AL.,
Plaintiffs, Appellants,
v.
ROBERT W. GLOVER, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Thomas H. Kelley with whom Judson Esty-Kendall, Pine Tree Legal
Assistance, Inc. and Neville Woodruff were on brief for appellants.
Richard G. Bergeron, Assistant Attorney General, State of Maine,
with whom Michael E. Carpenter, Attorney General, State of Maine, H.
Cabanne Howard, Deputy Attorney General, State of Maine, and Thomas
D. Warren, Deputy Attorney General, State of Maine, were on brief for
appellees.
March 31, 1993
BOUDIN, Circuit Judge. On July 14, 1978, Judge Edward
T. Gignoux, now deceased, entered a consent decree in the
district court settling a class action. The suit had been
brought under 42 U.S.C. 1983 against a number of state
officials in Maine, including the Commissioner of Mental
Health, on behalf of a class of mentally retarded Maine
citizens. A focus of the suit was the operation of Pineland
Center, a state institution for the mentally retarded.
The 1978 consent decree embodied two sets of standards
to improve care and promote a less restrictive environment
for class members. One set applied to Pineland Center and
the other to community placement programs for the Center's
outpatients. The 1978 decree provided that it and the two
sets of standards were binding upon defendants and their
successors, that a special master would be appointed to
monitor implementation, that the court would "retain[]
jurisdiction over this matter for two years" and then
consider whether to retain it further, and that "[a]ny party
may, at any time, apply" to the court for any necessary or
appropriate orders.
In fact Judge Gignoux continued active supervision of
the case for about five years. In brief, on September 18,
1981, Judge Gignoux discharged Pineland Center from the
court's "jurisdiction" and "supervision" after the special
master submitted a report finding that the Center was in
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compliance with the standards applicable to it. The special
master said in the same report that the Center would continue
to be bound by the decree after its discharge and would
thereafter be monitored by the state's Bureau of Mental
Retardation.
Then, on November 22, 1983, the court held a hearing and
issued a further order in which it "approve[d]" new
recommendations of the special master, terminated his office,
and "discharged" the remaining defendants "from the
supervision of the Court." The 1983 order further stated
that it, and the standards adopted in the 1978 consent
decree, "shall be applicable to and binding upon the
defendants and their successors." Finally, in the order the
court "reserve[d] jurisdiction over the case for a period of
three years," which might be shortened or extended upon
motion. In his report, the special master explained that
"the standards in the Consent Decree remain in force
indefinitely . . . ."
After the 1983 order, no further motions were filed or
entries made in the docket for almost eight years. Then, on
October 23, 1991, the Consumer Advisory Board and a group of
Pineland Center residents, outpatients and guardians brought
this action on behalf of Center residents and outpatients
against the Commissioner of Mental Health and other state
officials, seeking "enforcement" of rights created under the
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1978 consent decree.1 Ignoring the formality of the new law
suit, the parties, and Judge D. Brock Hornby to whom the case
was assigned, have sensibly treated the new action as if it
were a motion filed in the earlier action to seek enforcement
of the 1978 decree.
In the district court the defendants asserted that the
1978 decree had been terminated by the 1983 order no later
than three years after the entry of that order, so that there
was no consent decree to enforce. Judge Hornby agreed. In a
memorandum decision, Judge Hornby concluded that the question
was what Judge Gignoux meant in his 1983 order. After
reviewing the language of the 1983 order and other indicia,
Judge Hornby found that Judge Gignoux intended to terminate
the court's authority to enforce the 1978 decree and made
this intent clear. Judge Hornby then dismissed the case,
without prejudice to a new action asserting present
violations of federal law by defendants. This appeal
followed.2
1The Consumer Advisory Board was an entity created under
the decree to monitor performance and carry out other
functions. Although the state has a footnote in its brief
saying that it does not concede that the Consumer Advisory
Board has standing, it does not argue the issue in this court
nor does it question the standing of the other plaintiffs.
2So that this case does not appear a sterile argument
about captions, we note that the state agrees that a new
action charging present federal law violations could be
brought; but at the same time, it asserts that federal law
has changed since the 1978 consent decree, see Youngberg v.
Romeo, 457 U.S. 307 (1982), and that the original consent
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We believe that the dismissal must be vacated and the
case remanded for further proceedings. We think it plain
that the 1978 consent decree had no express termination date
and that any intent to terminate it must be based upon later
events. Whatever one might make of the reference in the 1978
consent decree to the court's retaining jurisdiction for two
years, Judge Gignoux actively supervised the case for five
years after entry of the decree in 1978 and the decree
provisions themselves contained no specific time limit.
Judge Hornby was therefore quite right to focus, as the
parties in this court do, on the 1983 order and surrounding
events.
We reject any suggestion by the Consumer Advisory Board
that the intent of the litigants in 1978 controls this case.
It is quite true that consent decrees are a mixture of
judgment and contract and that contract doctrine is often
used to determine the meaning of terms in a decree. United
States v. ITT Continental Baking Co., 420 U.S. 223, 236-37
(1975). But even if we assume that both sides in 1978 viewed
the decree as permanent, the district court has full power to
terminate a continuing consent decree of this kind upon a
determination that it has achieved its purpose or no longer
serves the public interest. Fed. R. Civ. P. 60(b); In re
Donald Pearson, No. 92-2158, slip. op. at 10-11 (1st Cir.,
decree provisions would not be adopted today.
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March 16, 1993). Ongoing decrees to reform public
institutions, whether consented to or not, are adopted by
courts subject to that power, regardless of whether the
parties would like to bind the court forever. System
Federation v. Wright, 364 U.S. 642, 651 (1961); Pearson,
slip. op. at 10.
Our focus, therefore, is upon the 1983 order. If its
import depended solely upon Judge Gignoux's private intent,
this would be a very close case. But it is Judge Gignoux's
expressed intent that matters, and the Supreme Court has
eased our task by requiring a clear statement of that intent
in order to terminate the decree. In Board of Education of
Oklahoma City Public Schools v. Dowell, 111 S. Ct. 630, 636
(1991), the Supreme Court held that the continuing injunctive
decree at issue would be deemed terminated only after "a
rather precise statement" of the district court's intention
to terminate. See also id. at 641 n. 3 (separate opinion of
Justice Marshall). Dowell concerned a school desegregation
decree, but we see no reason why a decree to reform a
different kind of state institution should stand on different
footing.3
3It may be that terminating the decree in Dowell would
have had a double impact, not only ending the existing
obligations but making a new suit more difficult for res
judicata reasons. But the Supreme Court, in requiring "a
rather precise statement," rested simply on the need to give
due notice to both sides as to the nature of, or changes in,
decree obligations. Id. at 636.
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The standard is eminently sensible. Continuing decrees
are a peculiar beast in the legal menagerie. Especially
where reform of an institution is involved, a court that has
entered such a decree may pass through levels of
disengagement as the decree moves toward achievement. After
entry of the decree, there is often a period of active
involvement--sometimes attended by close supervision, special
masters, and adjustment of time tables and other details.
Eventually the court may withdraw from active involvement,
and the case may even be "closed" in official records. Yet
the decree may live on as a legal obligation. If so, the
court's authority to enforce it is always capable of being
reawakened.
To require a clear statement before termination serves
several ends. It means that those subject to a decree know
that, absent such a statement, their obligations continue.
Cf. Dowell, 111 S. Ct. at 636. A clear statement also
assures that those who secured or are protected by the decree
will be on notice if and when a decree is terminated, so that
they can oppose or appeal this crucial decision. Id. A
clear statement test also reduces the chance of confusion as
to whether the district court has merely reduced its
involvement or actually nullified an important legal
obligation. And to signal termination under this standard is
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extremely easy: all a district court need do is say that "the
decree is terminated" or use any similar phrase.
Here, we think the state does have plausible arguments
that Judge Gignoux meant to terminate the decree, but the
other side has arguments of equivalent force. Thus, Judge
Gignoux did say in his November 22, 1983, order that he
"discharged" defendants from the court's "supervision" and
"reserve[d] jurisdiction" over the case for three years. But
the discharge from supervision clearly did not end the
decree,4 and the term "jurisdiction," while more portentous,
is a term of many shadings. There is more than one case in
which a district court has terminated its "jurisdiction" over
a decree, intending only to close the case on its docket
list, and without meaning to terminate ongoing obligations
under the decree.5
4Whether the state was in full compliance with the
decree as of November 22, 1983, or instead on a course toward
full compliance, is not entirely clear from the several,
sometimes inconsistent remarks of Judge Gignoux and the
special master. But the court's order of that date, just
before retaining jurisdiction, says that "this Order and
Appendices A and B [which were attached to the 1978 consent
decree and contained the standards] shall be applicable to
and binding upon the defendants and their successors . . . ."
5In addition to Dowell itself, where the district court
had entered an order terminating its "jurisdiction" over the
case, see e.g., Youngblood v. Dalzell, 925 F.2d 954, 955, 957
(6th Cir. 1991) (district court terminated its jurisdiction
over consent decree and "closed" the case without dissolving
the decree), and Roberts v. St. Regis Paper, 653 F.2d 166,
171-72 (5th Cir. 1981) (decree's provision providing for
termination of jurisdiction did not conflict with another
decree provision establishing a "permanent" seniority system,
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The defendants also rely heavily upon the statement of
Judge Gignoux, at the hearing held on the same day as the
1983 order, that the order marked "the end of this Federal
Court's involvement with Maine's care of the mentally
retarded." This statement cannot be taken literally, for the
state clearly remained bound by the terms of the decree for
at least another three years. Moreover, Judge Gignoux's
statement must be read in the context of a proceeding
celebrating the progress made by the state. And the Consumer
Advisory Board has arguments of its own, including firm
statements of the special master--apparently never contested
until now--that the decree was an ongoing obligation that
would endure well after initial compliance was achieved.
Taking into account both the language of the 1983 order and
the surrounding circumstances, we think that the order is at
best ambiguous.6
as jurisdiction did not "refer[] to the life of the decree
itself"). See generally Anderson, Release and Resumption of
Jurisdiction Over Consent Decrees in Structural Reform
Litigation, 42 U. Miami L. Rev. 401, 404, 413 (1987).
6There is nothing wrong, where decree language is
ambiguous, in looking to surrounding circumstances. Still,
the further away such evidence takes us from the case at
hand, the more doubtful its value and the less bearing it has
on the district court's expressed intent. For that reason we
need not discuss at length a different case (Inmates of the
Me. State Prison v. Oliver, No. 11-187-S-D, slip op. (D. Me.
May 10, 1987)) which the state offers as a parallel instance
of Judge Gignoux using "jurisdiction" language to terminate a
decree.
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In sum, a continuing obligation was created by the
original 1978 consent decree. Nothing in the 1983 order and
surrounding circumstances comprises "the rather precise
statement" needed under Dowell to terminate the decree.
Interpretation of the 1983 order presents a question of law
open to plenary review, e.g., Suburban O'Hare Com'n v. Dole,
787 F.2d 186, 193 (7th Cir.), cert. denied, 479 U.S. 847(1986), and our disagreement with the able district judge
simply underscores that the issue is fairly open to debate.
The Supreme Court's requirement of a rather precise
statement to terminate consent decrees is not the whole
story. In Dowell the Supreme Court has made clear that
institutional reform decrees need not endure forever. 111 S.
Ct. at 637. See also Fed. R. Civ. P. 60(b); Pearson, slip
op. at 9-11. Rather, the district court has considerable
discretion, especially after years of apparent compliance
have passed, to conclude that the decree should be dissolved
because it has achieved its purpose or no longer serves the
public interest. That remedy--which can be invoked by a
motion to terminate the 1978 consent decree--remains fully
available to the state. We note the point not to express any
view upon the merits of such a motion but to make clear that
the Dowell requirement of a rather precise statement is a
procedural dictate and not a presumption that decrees should
live forever.
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The judgment of the district court is vacated and the
case remanded for further proceedings. No costs.
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