[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 95-6637, 95-6875
RICKY WYATT, by and through his Aunt and Legal Guardian, Mrs. W.
C. Rawlins, Jr.; GLENDA BRANDNER, by and through her husband and
legal guardian, Wolfgang Brandner; DAVID S. SCHOEL, by and
through his father and legal guardian, J. Fred Schoel, Dr.; D. A.
R. Peyman, Jr., for himself and all others similarly situated;
JOSEPH L. MOUDRY, for himself and all others similarly situated;
et al.,
Plaintiffs-Appellees,
DIANE MARTIN; MARY BETH PARKER; WILLIAM SMITH; ADELIA KEEBLER;
MICHAEL GUINS, et al.
Plaintiffs-Intervenors-Appellees,
versus
CHARLES FETNER, as Commissioner of Mental Health and the State of
Alabama Mental Health Officer; JAMES F. REDDOCH, JR., Director,
Bryce Hospital; JOHN T. BARTLETT, Searcy Hospital; KAY V.
GREENWOOD, North Alabama Regional Hospital; DR. LARRY L. LATHAM,
Greil Memorial Psychiatric Hospital; et al.,
Defendants-Appellants,
UNITED STATES OF AMERICA,
Amicus.
Appeals from the United States District Court
for the Middle District of Alabama
(August 8, 1996)
Before TJOFLAT, Chief Judge, RONEY and CAMPBELL*, Senior Circuit
Judges.
*Honorable Levin H. Campbell, Senior U.S. Circuit Judge for the
First Circuit, sitting by designation.
TJOFLAT, Chief Judge:
I.
This case began on October 23, 1970, when patients at Bryce
Hospital, a state-run institution for the mentally ill in
Tuscaloosa, Alabama, filed suit in the United States District
Court for the Middle District of Alabama against the commissioner
and deputy commissioner of the Alabama Department of Mental
Health and Mental Retardation ("DMH/MR"), the members of the
Alabama Mental Health Board, the governor of Alabama, and
Alabama's probate judges.1 These patients alleged that the
conditions at Bryce Hospital were such that they had been
deprived of their rights under the United States Constitution.2
1
Since the beginning of the litigation, the parties and
the courts have treated this case as a class action, even though
the district court has failed to certify a plaintiff class. See,
e.g., Wyatt v. Stickney, 325 F. Supp. 781, 782 (M.D. Ala. 1971)
("This is a class action . . . . The plaintiffs sue on behalf of
themselves and on behalf of other members of their respective
classes."); Wyatt v. Aderholt, 503 F.2d 1305, 1306 (5th Cir.
1974) ("The guardians of patients . . . brought this class action
on behalf of their wards and other civilly committed patients.").
One of the issues on appeal is the propriety of the district
court's "recertification" of a plaintiff class. See infra part
IV.
2
The lawsuit was filed after staff members at Bryce
Hospital and other DMH/MR institutions were discharged as a
result of a state "budgetary crisis." These discharged staff
members joined the Bryce Hospital patients as party plaintiffs
and sought reinstatement to their positions. Both groups of
plaintiffs sought to
redress the deprivation, under color of laws and statutes of
the State of Alabama, of rights, privileges, and immunities
secured by the Fifth, Eighth and Fourteenth Amendments to
the Constitution of the United States, providing for equal
rights of all persons within the jurisdiction of the United
States.
2
On March 12, 1971, following a hearing on the plaintiffs'
The patients alleged that the staff reductions would have
two harmful consequences. First, patients involuntarily
committed to Bryce Hospital would not receive the care that
Alabama law required that they receive. Such lack of care, it
was alleged, would deprive the patients of "due process" because
the patients would be subjected to what amounted to penal
confinement. Second, the staff reductions and consequent lack of
adequate treatment programs would have "serious and irreparable
consequences" for the patients at Bryce Hospital. The patients
asked the district court to enter a permanent injunction ordering
the defendants to "insure and direct that no present course of
mental health treatment and service now being given to plaintiffs
. . . shall in any way be interrupted, changed, or interfered
with." The patients also sought an injunction that would end
further involuntary commitment of patients to Bryce Hospital.
The discharged staff members alleged that they had a right
under Alabama law to remain in their jobs, that their discharge
violated their due process right to pre-termination hearings, and
that the defendants had other means of meeting the budgetary
crisis aside from cutting staff. They sought an injunction that
would require the defendants to "rescind" all staff terminations
at Bryce Hospital. These staff members subsequently abandoned
their claims and withdrew from the case, leaving the patients as
the only plaintiffs. See Wyatt, 325 F. Supp. at 782 n.1.
In 1974, the former Fifth Circuit described the patients'
complaint and the subsequent amendment to that pleading as
follows:
The original complaint did not allege that treatment
levels at Bryce had been inadequate before the [staff]
terminations. For reasons not entirely clear from the
record before us, however, the focus of the litigation soon
shifted from the effects of the [staff] terminations to
questions of the overall adequacy of the treatment afforded
at the Alabama state mental hospitals. On January 4, 1971,
the plaintiffs amended the complaint to add prayers that the
defendants be enjoined from operating Bryce "in a manner
that does not conform to constitutional standards of
delivering adequate mental treatment to its patients"; that
the [c]ourt order defendants to prepare a "comprehensive
constitutionally acceptable plan to provide adequate
treatment in any state mental health facility"; and that the
court declare that patients confined to a state mental
health facility are entitled to "adequate, competent
treatment."
Wyatt v. Aderholt,
503 F.2d 1305, 1308 (5th Cir. 1974).
3
application for preliminary injunctive relief, the district court
found that patients at Bryce Hospital were being denied their
"constitutional right to receive such individual treatment as
will give each of them a realistic opportunity to be cured or to
improve his or her mental condition."3 Wyatt v. Stickney,
325 F.
Supp. 781, 784 (M.D. Ala. 1971). The court ordered the
defendants to devise, and to submit to the court for approval, a
plan to bring the hospital into compliance with constitutional
standards of care.
Several months after the district court's decision, the
plaintiffs were given leave to amend their complaint to include
allegations of constitutionally inadequate treatment at a second
state-run hospital for the mentally ill, Searcy Hospital, in Mt.
Vernon, Alabama, and at Partlow State School and Hospital, a
state-run institution for mentally retarded persons in Partlow,
Alabama.4 Following this amendment, the court's order of March
3
The district court did not explicitly state what
constitutional provision formed the basis for its ruling. The
court found that "[t]o deprive any citizen of his or her liberty
upon the altruistic theory that the confinement is for humane
therapeutic reasons and then fail to provide adequate treatment
violates the very fundamentals of due process." Wyatt,
325 F.
Supp. at 785.
4
As noted in the text, supra, when this suit was brought,
the plaintiffs were patients at Bryce Hospital, not Searcy
Hospital or Partlow State School and Hospital. Some of the
patients were subsequently transferred to Searcy and Partlow (or
were eligible for such transfer) and thus had standing to
complain of the conditions at those institutions. The amended
complaint alleged that the three institutions were being operated
in a "[c]onstitutionally impermissible manner which results in
scientifically and medically inadequate care," but did not cite
any specific provision of the Constitution.
4
12, 1971, was made applicable to the Searcy and Partlow
facilities.
After the defendants failed to formulate "minimum medical
and constitutional standards" for the operation of the three
institutions, the district court, on April 13, 1972, established
what would become known as the "Wyatt standards," which set forth
several specific requirements for the adequate treatment of both
mentally ill and mentally retarded individuals.5 The court
enjoined the defendants to implement the standards. See Wyatt v.
Stickney,
344 F. Supp. 373, 378-86 (M.D. Ala. 1972) (Bryce and
Searcy Hospitals); Wyatt v. Stickney,
344 F. Supp. 387, 394-407
(M.D. Ala. 1972) (Partlow State School and Hospital).6 The
former Fifth Circuit affirmed the district court's injunctions in
1974. Wyatt v. Aderholt,
503 F.2d 1305 (5th Cir. 1974). It
upheld under the Due Process Clause of the Fourteenth Amendment
the plaintiffs' constitutional right to treatment and affirmed
the standards that were promulgated by the district court. In
5
The Wyatt standards were designed to meet what the
district court called the three "fundamental conditions for
adequate and effective treatment": "(1) a humane psychological
and physical environment, (2) qualified staff in numbers
sufficient to administer adequate treatment and (3)
individualized treatment plans." See Wyatt v. Stickney,
334 F.
Supp. 1341, 1343 (M.D. Ala. 1971).
6
In the order pertaining to Bryce and Searcy Hospitals,
the court reiterated its earlier holding that civilly committed
mentally ill persons have a constitutional right to treatment.
In the order pertaining to Partlow State School, the court
outlined a "constitutional right to habilitation" for civilly
committed mentally retarded individuals so as to "give each of
[these persons] a realistic opportunity to lead a more useful and
meaningful life and to return to society." Wyatt, 344 F. Supp.
at 390.
5
1975, the district court, with the agreement of the parties,
amended its 1972 injunctions to apply the Wyatt standards to all
DMH/MR facilities.7
The defendants failed to comply with the Wyatt standards,
and in 1979, the governor of Alabama moved the district court to
place Alabama's mental health and mental retardation system into
receivership. See Wyatt v. Ireland, Civ. A. No. 3195-N (M.D.
Ala. Oct. 25, 1979). On January 15, 1980, the court appointed
the governor receiver of all DMH/MR institutions.
On March 9, 1981, the plaintiffs moved the court to force
the defendants to comply with the 1972 injunctive orders by
ordering them to provide "sufficient funds" to the DMH/MR so that
it could satisfy the Wyatt standards. The plaintiffs did not
seek enforcement of the court's injunctive orders by using
equity's time-honored procedures for obtaining the enforcement of
an injunction. Rather, as they have done throughout this case,
7
The 1975 order changed the definitions of "institution"
and "hospital" in the Wyatt standards to include "any other
centers, homes, and facilities -- public or private -- to which
[mentally ill, emotionally disturbed, or mentally retarded]
persons are assigned or transferred for residence" by the DMH/MR.
The definition of "residents" in the standards applicable to
facilities for the mentally retarded was changed to include "all
persons who are now confined and all persons who may be confined
at . . . any other institution as hereinabove defined for the
care, treatment, and habilitation of the mentally retarded." In
the standards applicable to facilities for the mentally ill, the
definition of "patients" was changed to include "all persons who
are now confined and all persons who may in the future be
confined at . . . any other 'hospital' as hereinabove defined for
the care, custody, and treatment of the mentally ill or
emotionally disturbed." See Wyatt v. Hardin, Civ. A. No. 3195-N
(M.D. Ala. Feb. 28, 1975). Although the court's injunctions now
reached private facilities in which DMH/MR placed patients, no
private facility was made a defendant in the action.
6
they simply asked the court to "do something" to make the
defendants comply with the Wyatt standards.8 On May 18, 1981,
8
Precedent dictates that a plaintiff seeking to obtain the
defendant's compliance with the provisions of an injunctive order
move the court to issue an order requiring the defendant to show
cause why he should not be held in contempt and sanctioned for
his noncompliance. See Newman v. State of Alabama,
683 F.2d
1312, 1318 (11th Cir. 1982), cert. denied,
460 U.S. 1083,
103 S.
Ct. 1773, 76L. Ed. 2d 346 (1983). In his motion, the plaintiff
cites the provision(s) of the injunction he wishes to be
enforced, alleges that the defendant has not complied with such
provision(s), and asks the court, on the basis of his
representation, to order the defendant to show cause why he
should not be adjudged in contempt and sanctioned. If the court
is satisfied that the plaintiff has made out a case for an order
to show cause, it issues the order to show cause. The defendant,
following receipt of the order, usually files a response, either
confessing his noncompliance or presenting an excuse, or "cause,"
therefor. The dispute is thereafter resolved at a show cause
hearing, with the issues to be decided at the hearing framed by
the show cause order and the defendant's response.
At the hearing, if the plaintiff establishes the defendant's
noncompliance with the court's injunctive order and the defendant
presents no lawful excuse for his noncompliance, the court
usually adjudges the defendant in civil contempt and imposes a
sanction that is likely to prompt the defendant's compliance with
the injunction.
One sanction might be to incarcerate . . . the
defendant[ ] . . . . While a federal court is always
reluctant to coerce compliance with its decrees by
incarcerating a state official, if that official is in
contempt there can be no doubt of the court's authority to
do so. State officials are not above the law.
Another sanction might be to fine the recalcitrant
official. "Civil contempt may . . . be punished by a
remedial fine, which compensates the party who won the
injunction for the effects of his opponent's noncompliance
. . . . If [a state official] refuses to adhere to a court
order, a financial penalty may be the most effective means
of insuring compliance." [Hutto v. Finney,
437 U.S. 678,
691,
98 S. Ct. 2565, 2573,
57 L. Ed. 2d 522 (1978).]
Newman,
683 F.2d at 1318 (citation omitted).
In seeking to enforce the court's injunctions in this case,
the plaintiffs have not resorted to the traditional means of
7
the defendants, in response to the plaintiffs' motion, moved the
court to modify its 1972 injunctive orders to eliminate the Wyatt
standards and to substitute accreditation by the Joint Commission
on Accreditation of Healthcare Organizations ("JCAHO") as the
standard of constitutionally acceptable care at DMH/MR
institutions. The plaintiffs opposed the substitution. In 1983,
the court held a hearing on both the defendants' and plaintiffs'
1981 motions, but did not rule on them.
The parties eventually negotiated a settlement, and
submitted it in the form of a consent decree, which the district
court approved on September 22, 1986. See Wyatt v. Wallis, Civ.
A. No. 3195-N (M.D. Ala. Sept. 22, 1986). Among other things,
the decree (1) removed the Alabama mental health and mental
retardation system from receivership; (2) dismissed from the case
all defendants except the commissioner of mental health and
mental retardation and the individual directors of the DMH/MR
institutions; (3) continued in effect the Wyatt standards; (4)
enjoined the defendants to "continue to make substantial progress
in achieving compliance with" the Wyatt standards; and (5)
enforcing injunctions described above. Nor has the court issued
orders to show cause, calling upon the allegedly recalcitrant
defendants to explain why they have not complied with the
injunctive provisions in question. Consequently, the hearings
that the district court has convened to consider the plaintiffs'
motions for enforcement have amounted for the most part to status
conferences in which the court is briefed, sometimes through
testimony, on the current conditions at DMH/MR institutions.
This may account for the court's failure to rule on the
plaintiffs' 1981 motion to ensure compliance with the court's
1972 injunctive orders and, as well, the plaintiffs' 1993 motion,
described in the text, infra, to enforce the consent decree
entered in 1986.
8
enjoined the defendants to seek and maintain JCAHO accreditation
at all DMH/MR institutions.
On December 20, 1990, patients at the Thomasville Adult
Adjustment Center in Thomasville, Alabama, moved the district
court for leave to intervene in the litigation as plaintiffs.9
In their proposed complaint, the intervenors alleged that the
defendants had violated the Wyatt standards and that certain
unconstitutional conditions existed at Thomasville.10 The
intervenors sought a permanent injunction barring further
admissions to the Center until the defendants complied with the
Wyatt standards at that institution. The court granted the
Thomasville patients' motion to intervene on January 25, 1991,
and, in October of that year, held a bench trial on their claims.
The district court has yet to rule on this matter.11
9
Patients at Thomasville were already members of the
plaintiff "class," as defined by the Wyatt standards. See Wyatt,
Civ. A. No. 3195-N (M.D. Ala. Feb. 28, 1975), (changing the
definition of "hospital" in the Wyatt standards specifically to
include the Thomasville Adult Adjustment Center).
10
Among other things, the intervenors claimed that
"Alabama's indeterminate involuntary civil confinement of the
mentally ill violate[d] the Due Process Clause of the Fourteenth
Amendment" because the state did not limit the length of the
confinement and the DMH/MR failed to provide for periodic
adversarial post-commitment reviews of such confinement. See
Wyatt v. King, 773 F. Supp. 1508, 1511 (M.D. Ala. 1991). On July
22, 1991, the district court granted the intervenors relief on
this claim, declaring Alabama's "indeterminate involuntary civil
commitment of the mentally ill" unconstitutional and ordering
periodic adversarial post-commitment reviews. Id. at 1517-18.
11
The defendants have petitioned this court for a writ of
mandamus compelling the district court to rule on the
intervenors' claim of unconstitutional conditions at Thomasville.
See In re Fetner, No. 95-6879 (11th Cir. filed Oct. 23, 1995).
This court stayed the petition pending the resolution of the
9
II.
On January 18, 1991, before the district court ruled on the
Thomasville patients' motion to intervene, the defendants,
acknowledging that they were not in compliance with all of the
Wyatt standards at DMH/MR institutions, nonetheless moved the
district court to terminate the 1986 consent decree and to
dismiss the case. On April 19, 1991, the defendants, apparently
as an alternative measure, moved the court to modify the consent
decree by deleting or modifying several of the Wyatt standards.
Early in 1993, while these motions were still pending, the
plaintiffs moved the district court for "a finding that the
defendants are violating the 1986 Consent Decree" and for
"contempt sanctions for defendants' violations."12 The court
instant appeals.
12
Unlike their previous motion to enforce the district
court's injunctive orders, see supra note 8, on this occasion
plaintiffs' motion alleged that the defendants were violating the
1986 consent decree and sought a contempt adjudication and
sanctions. Like the previous motion, however, the motion failed
to allege, with specificity sufficient to inform the defendants,
which injunctive provisions the defendants were purportedly
violating.
On the same day that they filed the above motion, the
plaintiffs moved the court for leave to amend their complaint to
assert a claim for declaratory and injunctive relief on the
ground that the defendants were violating provisions of the newly
enacted Americans with Disabilities Act of 1990, Pub. L. No. 101-
336,
104 Stat. 328. In effect, the plaintiffs sought leave to
bring an entirely new lawsuit. The claims under the Americans
with Disabilities Act were unrelated to the case at hand, but the
district court granted the motion to amend.
10
ordered that the defendants' and the plaintiffs' motions be heard
together at an evidentiary hearing.13
The hearing was held from March 13 to May 16, 1995. On the
first day of the hearing, the court announced at a meeting in
chambers that, in response to deposition testimony describing
unsafe living conditions at the Eufala Adolescent Center in
Eufala, Alabama, it was considering entering preliminary
injunctive relief on behalf of the patients at Eufala. On April
17, the plaintiffs formally moved the court to provide such
relief, and on July 11, the court entered a preliminary
injunction enjoining the defendants from "failing to take
immediate and affirmative steps to provide for the safety and
protection from abuse of all resident children at the Eufala
Adolescent Center, as required by [the Wyatt standards]." Wyatt
v. Poundstone,
892 F. Supp. 1410, 1423 (M.D. Ala. 1995). The
court further ordered the defendants to submit a plan to the
court to "address and resolve immediately the severe and
pervasive safety problems and abuse of resident children at
Eufala Adolescent Center."
Id. at 1423-24. The defendants
appeal the preliminary injunction in No. 95-6637, contending that
the district court abused its discretion in ordering the relief
13
With respect to the plaintiffs' motion that the
defendants be held in contempt for violating the 1986 consent
decree, the court did not determine whether the motion was
sufficient to warrant the issuance of an order to show cause, see
supra note 8; rather, the court simply scheduled an evidentiary
hearing.
11
it granted. After the appeal was taken, the district court, on
September 15, 1995, approved a one-year remedial plan for Eufala.
The Eufala Adolescent Center is now closed; there are no
patients residing at the facility. Further, it appears that the
state is not likely to reopen Eufala prior to September 15, 1996,
the date on which the defendants' plan (and thus the preliminary
injunction) expires. The appeal is therefore moot.14
III.
On August 17, 1995, a month after the entry of the
preliminary injunction, the defendants moved the district judge
to disqualify himself from the case, alleging (1) that the judge
has acted in a manner "in which his impartiality might reasonably
be questioned,"
28 U.S.C. § 455(a); and (2) that "in private
practice he served as lawyer in the matter in controversy," 28
14
On August 1, 1995, the defendants asked the district
court to stay the preliminary injunction pending this appeal; the
district court denied their request a week later. After the
DMH/MR announced that it was closing Eufala, the district court
stayed the preliminary injunction because it found "the need for
the preliminary injunction . . . is moot." Wyatt v. Fetner, Civ.
A. No. 3195-N (M.D. Ala. Mar. 22, 1996). (The district court
also informed this court that upon remand of this appeal it will
dissolve the preliminary injunction.) The defendants have
appealed the stay order, Wyatt v. Fetner, No. 96-6279 (11th Cir.
filed Mar. 22, 1996); we dismiss this appeal as moot in a
separate unpublished opinion.
12
U.S.C. § 455(b)(2).15 On October 3, 1995, the judge denied the
motion. The defendants appeal this denial in No. 95-6875.
An interlocutory appeal does not lie from the denial of a
motion to disqualify a district judge. See United States v.
Gregory,
656 F.2d 1132, 1136 (5th Cir. Unit B Sept. 1981); In re
Corrugated Container Antitrust Litig.,
614 F.2d 958, 960-61 (5th
Cir.), cert. denied,
449 U.S. 888,
101 S. Ct. 244,
66 L. Ed. 2d
114 (1980).16 The defendants contend, however, that an order
denying a motion to disqualify is appealable if it is pendent to
a final or otherwise appealable order. See Stewart v. Baldwin
County Bd. of Educ.,
908 F.2d 1499, 1509 (11th Cir. 1990)
("Pendent jurisdiction is properly exercised over nonappealable
decisions of the district court when the reviewing court already
15
Section 455 provides:
(a) Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in
the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer
has been a material witness concerning it.
28 U.S.C. § 455(a), (b)(1)-(2).
16
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
13
has jurisdiction over one issue in the case."); see also Swint v.
Chambers County Comm'n, ___ U.S. ___, ___ & n.2,
115 S. Ct. 1203,
1209 & n.2,
131 L. Ed. 2d 60 (1995) (discussing the doctrine of
"pendent appellate jurisdiction"). Here, the defendants claim
that the district court's denial of the motion to disqualify is
pendent to and appealable with its order granting the plaintiffs
preliminary injunctive relief at Eufala, which the defendants
appeal in No. 95-6637.
The appeal of the preliminary injunction is moot. See supra
part II. Thus, even were the unappealable disqualification order
pendent to the appealable preliminary injunction, the denial of
the motion to disqualify is no longer pendent to any reviewable
order. The court's order would be reviewable on a petition for a
writ of mandamus. See Corrugated Container, 614 F.2d at 961 n.4.
Defendants have not submitted such a petition, however, and we
decline on our own initiative to treat their appeal of the
court's order as a mandamus petition.17 We therefore have no
jurisdiction to review the disrict court's order denying the
defendants' motion to disqualify.
IV.
17
The defendants have petitioned for a writ of mandamus to
disqualify the district judge from the case of Lynch v. Evans,
Civ. A. No. 74-T-89-N (M.D. Ala.), another longstanding case
concerning Alabama's mental health system. The petition, In re
Fetner, No. 95-6728 (11th Cir. filed Sept. 5, 1995), was
consolidated with these appeals for oral argument. We dismiss
the petition as moot in a separate unpublished opinion.
14
On December 22, 1994, the defendants moved the district
court to "recertify" or modify the plaintiff class, or, in the
alternative, to "decertify" the class, because a plaintiff class
had never been certified in the case.18 On October 3, 1995, the
same day the court denied the defendants' motion to disqualify
the district judge, the court denied the motion to decertify the
plaintiff class. At the same time, the court "recertified" the
plaintiff class.19 See Wyatt v. Poundstone, Civ. A. No. 3195-N
(M.D. Ala. Oct. 3, 1995). In No. 95-6875, the defendants appeal
the district court's refusal to decertify the plaintiff class
and its recertification of that class.
Class recertification orders are not final orders within the
meaning of
28 U.S.C. § 1291; as such, they are ordinarily not
appealable. See Coopers & Lybrand v. Livesay,
437 U.S. 463, 468-
69,
98 S. Ct. 2454, 2458,
57 L. Ed. 2d 351 (1978); Elster v.
Alexander,
608 F.2d 196, 197 (5th Cir. 1979); Knox v. Amalgamated
Meat Cutters & Butchers Workmen,
520 F.2d 1205, 1206 (5th Cir.
1975). Likewise,
28 U.S.C. § 1292(a) does not provide for
interlocutory appellate review of such orders. The defendants
18
See supra note 1. The defendants also contended that
the plaintiff class should be decertified because the named
plaintiffs' claims had become moot. The district court, however,
allowed a new group of plaintiffs whose claims are not moot (the
Hanna class) to "intervene" in the case, essentially substituting
them for the Wyatt plaintiffs.
19
The plaintiff class is now defined as "mentally-ill and
mentally-retarded individuals who live in hospitals, centers,
facilities, or homes, public or private, to which the individual
has been assigned or transferred to by the [DMH/MR]." Wyatt v.
Poundstone, Civ. A. No. 3195-N (M.D. Ala. Oct. 3, 1995).
15
contend that the recertification order, like the court's denial
of the motion to disqualify, is appealable because it is pendent
to the appealable order granting preliminary injunctive relief.
As we have explained, see supra part III, because the preliminary
injunction is moot, the recertification order is no longer
pendent to any reviewable order. We therefore have no
jurisdiction to review the district court's order refusing to
decertify the plaintiff class and recertifying that class.
V.
In conclusion, the appeal of the preliminary injunction
entered on July 11, 1995, is DISMISSED as moot (No. 95-6637), and
the appeal of the district court's orders of October 3, 1995, is
DISMISSED for lack of appellate jurisdiction (No. 95-6875). All
outstanding motions before this court pertaining to these appeals
are hereby DENIED as moot.
SO ORDERED.
16
