NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
May 26, 2010
Before
DAVID F. HAMILTON, Circuit Judge
No. 08‐3183
INDIANA PROTECTION AND Appeal from the United States District
ADVOCACY SERVICES, Court for the Southern District
Plaintiff‐Appellee, of Indiana, Indianapolis Division
v. No. 1:06‐cv‐1816‐LJM‐TAB
INDIANA FAMILY AND SOCIAL Larry J. McKinney,
SERVICES ADMINISTRATION; Judge.
ANNE W. MURPHY, in her official
capacity as Secretary of the Indiana
Family and Social Services
Administration; GINA ECKHART, in her
official capacity as Director of the Division
of Mental Health and Addiction; and
LARRY LISAK, in his official capacity as
Superintendent of Larue Carter Memorial
Hospital,
Defendants‐Appellants.
O R D E R
On April 22, 2010, this court sitting en banc affirmed the judgment of the district court as
modified. Indiana Protection and Advocacy Servs. v. Indiana Family and Social Services Admin., —
F.3d —,
2010 WL 1610117 (7th Cir. Apr. 22, 2010) (“IPAS II”). The effect of this court’s mandate
No. 08‐3183 Page 2
will be to affirm the district court’s order requiring the named state officials to make available
to the plaintiff certain records regarding a mentally ill patient (identified in the court records
and the court’s opinion as Patient 1) for inspection and copying.
The defendants intend to seek Supreme Court review and have moved to stay the mandate
pending the conclusion of that Court’s review. The plaintiff opposes the motion. All
participating judges agree that the motion should be denied.1 The district court has stayed its
order pending resolution of this appeal. As I explain below as author of the merits opinion, this
court sees no reason to delay the mandate or to prevent the district court from lifting its stay
of its order pending possible Supreme Court review.
A party seeking a stay of a mandate pending resolution of a petition for a writ of certiorari
must show that the petition will present a substantial question and that there is good cause for
a stay. See Fed. R. App. P. 41(d)(2)(A); Books v. City of Elkhart,
239 F.3d 826, 827 (7th Cir. 2001)
(Ripple, J., in chambers) (granting stay where mandate would require permanent and expensive
removal of stone monument on lawn of municipal building). The grant of a motion to stay the
mandate “is far from a foregone conclusion.” 16AA Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper & Catherine T. Struve, Federal Practice and Procedure § 3987 (4th ed. 2008).
Instead, the party seeking the stay must demonstrate both a reasonable probability of success
on the merits and irreparable injury absent a stay. See Bricklayers Local 21 v. Banner Restoration,
Inc.,
384 F.3d 911, 912 (7th Cir. 2004) (Ripple, J., in chambers); Williams v. Chrans,
50 F.3d 1358,
1360 (7th Cir. 1995) (per curiam); United States v. Holland,
1 F.3d 454, 456 (7th Cir. 1993) (Ripple,
J., in chambers).
To demonstrate a reasonable probability of success on the merits of the proposed certiorari
petition, the applicant must show a reasonable probability that four Justices will vote to grant
certiorari and a “fair prospect” that five Justices will vote to reverse the judgment of this court.
See California v. American Stores Co.,
492 U.S. 1301, 1306‐07 (1989) (OʹConnor, J., in chambers);
see also United States v. Warner,
507 F.3d 508, 511 (7th Cir.2007) (Wood, J., in chambers);
Williams,
50 F.3d at 1360. In resolving the applicants’ motion to stay, we consider the issues that
the applicants plan to raise in the certiorari petition in the context of the case history, the
Supreme Court’s treatment of other cases presenting similar issues, and the considerations that
guide the Supreme Court in determining whether to issue a writ of certiorari. See Williams,
50 F.3d at 1361.
This court decided three questions that the defendants intend to ask the Supreme Court to
review. First, all participating members of this court agreed that the Eleventh Amendment
does not bar the plaintiff from seeking injunctive and declaratory relief against the individual
state officials in their official capacities. Our decision disagreed on this point with a decision
1
Judge Tinder has not participated in consideration of this appeal.
No. 08‐3183 Page 3
by the Fourth Circuit, Virginia v. Reinhard,
568 F.3d 110 (4th Cir. 2009), cert. petition pending,
No. 09‐529. Such a direct circuit split provides a reasonably promising possibility for certiorari
review.2
Second, a majority of this court held that the plaintiff has a right to sue under the PAIMI Act
for injunctive and declaratory relief to obtain access to the records in question. This case
appears to be the first one in which that specific question has been decided, though many other
cases in circuit and district courts have assumed such a right under PAIMI and similar
protection and advocacy statutes. See IPAS II, — F.3d at —,
2010 WL 1610117, at *13 (collecting
cases). One member of this court disagreed, indicating that there is room for reasonable
disagreement on the point, though there is currently no direct circuit split.
Third, this court held that the peer review records in dispute were subject to the record
access provisions of the PAIMI. We are the fifth circuit to have decided the issue, and all
circuits are in agreement. See, e.g., Protection & Advocacy for Persons with Disabilities v. Mental
Health & Addiction & Advocacy Servs.,
448 F.3d 119, 128 (2d Cir. 2006) (Sotomayor, J.); Missouri
Protection & Advocacy Servs. v. Missouri Depʹt of Mental Health,
447 F.3d 1021, 1023 (8th Cir.
2006); Center for Legal Advocacy v. Hammons,
323 F.3d 1262, 1270 (10th Cir. 2003); Pennsylvania
Protection & Advocacy, Inc., v. Houstoun,
228 F.3d 423, 428 (3d Cir. 2000) (Alito, J.). However, a
1999 decision by the New Hampshire Supreme Court stands in opposition. See Disabilities
Rights Center, Inc. v. New Hampshire Department of Corrections,
732 A.2d 1021 (N.H. 1999). In
spite of this apparent outlier, with all circuits in agreement this question does not appear to be
promising for certiorari review.
The defendants argue there is good cause for a stay of the mandate because they will suffer
irreparable harm in the form of an “invasion of privacy” if they are required to allow the
plaintiff to inspect and copy the disputed peer review records regarding Patient 1. However,
the defendants fail to specify their basis for any privacy right or interest in the records under
dispute. Does it lie with Patient 1? With the state care‐giving institutions? With the doctors and
other medical professionals who rendered treatment? In any case, to alleviate that concern, the
plaintiff points out that if and when it is granted access to the records, it still will be required
by law to maintain the confidentiality of those records. There is therefore little to no risk that
the information the records contain would be publicly disclosed or that the information would
be used for some purpose unrelated to the plaintiff’s mandate, severely undercutting the
defendants’ argument. Also, this negligible risk is outweighed by the plaintiff’s interest in
carrying out its obligation to protect and advocate on behalf of other mentally ill patients. That
2
On May 25, 2010, defendants filed a letter under Circuit Rule 28(j) attaching the Solicitor General’s
invited response in Virginia arguing that the Supreme Court should grant certiorari relying on, among other
points, the conflict with our decision. The Rule 28(j) submission does not change the analysis of the pending
motion.
No. 08‐3183 Page 4
interest has been necessarily kept in suspense for the last several years of this litigation, and
further delay is unwarranted.
In sum, the balance weighs against granting a stay of the mandate even if there is a
reasonable possibility that certiorari may be granted. The disclosure of information would be
to an independent government agency with its own legal obligations to maintain the
confidentiality of the documents in question. The plaintiff has had to wait nearly four years
after Patient 1’s death for access to the peer review documents, stymying its ability to
effectively protect and advocate on behalf of other individuals with mental illness. There will
be no invasion of Patient 1’s privacy, for Patient 1 is deceased. Whatever interests the care‐
giving entities or the doctors and other individual care‐givers might have in the privacy of
information about their treatment of Patient 1 will be adequately protected by the plaintiff’s
own legal obligations of confidentiality. Under these circumstances, a court order allowing the
plaintiff access to the records but reserving the right to order the plaintiff to return all copies
and derivative notes in the event that this court’s decision is reversed would give substantial
protection to the defendants. Finally, as the defendants point out, that ongoing prospect for
ordering return of documents would also prevent the case from becoming moot pending
possible Supreme Court review. See Church of Scientology of California v. United States,
506 U.S.
9, 13 (1992). Accordingly, the motion to stay the mandate is denied.
