Consumer v. Glover

• Court: Court of Appeals for the First Circuit
• Decided: April 1, 1993
• Docket: 92-1550
• Status: Published

Opinion

USCA1 Opinion

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.

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                    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,
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                              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. 

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                                    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

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                 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.,
            ______________

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            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

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                 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
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            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

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                 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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                                         -8-

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

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            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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