Ricci v. Okin, M.D.

• Court: Court of Appeals for the First Circuit
• Decided: October 30, 1992
• Docket: 92-1812
• Status: Published

Opinion

USCA1 Opinion

October 30, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-1812

                            ROBERT SIMPSON RICCI, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                            ROBERT L. OKIN, M.D., ET AL.,

                                Defendants, Appellees.

                                     ___________

WILLIAM F. WELD, ETC., ET AL.,

                               Defendants, Appellants.

                                 ____________________

               APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            David  Ferleger, Special  Assistant  Attorney General,  with  whom
            _______________
        Scott Harshbarger,  Attorney General,  Douglas  H. Wilkins,  Assistant
        _________________                      ___________________
        Attorney  General,  and Kim  E.  Murdock,  Special Assistant  Attorney
                                ________________
        General, were on brief for appellants.
            Nonnie  S. Burnes with  whom Michael  J. Pineault,  Hill & Barlow,
            _________________            ____________________   ______________
        P.C. and Beryl W. Cohen were on brief for appellees.
        ____     ______________

                                 ____________________

                                 ____________________

BREYER, Chief Judge.  This appeal  arises out of a
                               ___________

             set  of consolidated  cases concerning  the  Commonwealth of

             Massachusetts' care  and education of its  mentally retarded

             citizens.  Plaintiffs first  brought these cases against the

             state  in  the early  1970's.   In  1977 the  district court

             entered a  set of consent  decrees, aimed at  improving care

             conditions, and  the court,  during the next  several years,

             actively  oversaw their implementation.  By 1986, conditions

             had improved to  the point  where, on October  9, 1986,  the

             court entered an order (the "October  1986 Order") which, in

             the  court's view,  represented a  "step of  disengagement."

             The  Order required the state to create an Office of Quality

             Assurance  ("OQA"), to monitor  further compliance  with the

             decrees, to assure mentally retarded persons of the services

             to which the  law entitled  them, and to  carry out  various

             related  responsibilities.  It set  forth a list of specific

             "tasks"  that the state was to accomplish.  The October 1986

             Order  seemed to  contemplate the  court's final  withdrawal

             from supervision  of the consent decrees  after three years,

             for  it said that  "[d]uring the three  years following this

             court's disengagement,  the parties and  the [OQA]  Director

             may  seek this  court's counsel or  clarification as  to its

             orders."  It added that "[n]inety (90) days prior to the end

of this three year period, the court shall hold a hearing to

             review  implementation of this final order."  It said, in an

             Appendix, that the OQA was  "initially chartered for a three

             year term."  And,  in the opinion explaining the  Order, the

             court  said  that  the  OQA  "shall  be  maintained  by  the

             Commonwealth for  a three year  period, to  commence on  the

             date of this court's disengagement." 

                       As  October 1989 approached, the parties agreed to

             extend the October 1986 Order.  In September 1989, the court

             ordered that  "[a]ll provisions of the  order and memorandum

             entered on  October 9,  1986 .  . . shall  remain in  effect

             until  June  30, 1990."    Subsequently,  with the  parties'

             consent (with either both consenting, or with one consenting

             and the  other acquiescing), the court  further extended its

             October  1986  Order  --  to  September  30,  1990, then  to

             December 31, 1990, then to March 31, 1991, then to June  30,

             1991, then to September 30, 1991, then to December 31, 1991,

             and, then to June 30, 1992.  

                       On March 13, 1992,  the state defendants moved for

             "a hearing in June,  1992, or at the Court's  convenience in

             that period, 'to review implementation'" of the October 1986

             Order.  The district court asked the parties to file reports

             on the  status of the  state's compliance.   On April  2 the

-3-
                                          3

court  requested further  detailed submissions,  including a

             report  from  OQA;  it  set  forth  a  timetable  for  those

             submissions; and, it  said that after it  had received those

             submissions, it  would schedule  a further conference.   The

             defendants protested that  the court's request for  detailed

             submissions indicated that the  court was imposing upon them

             new duties, not previously foreseen or agreed to; they asked

             the  court for an  interpretation of the  October 1986 Order

             and various  underlying consent decrees.   On April  24, the

             court  responded  that   the  "defendants'  recent   filings

             indicate . . .  the likelihood, if not inevitability,  of an

             evidentiary hearing .  . . ."  It added  that the issues the

             defendants had raised would be decided after the hearing and

             after  the  parties  had  "an  opportunity  to  state  their

             respective positions in briefs and at oral argument."      

                       About  six  weeks  later,   in  early  June,   the

             plaintiffs moved to  "extend all  provisions of .  . .  [the

             October 1986 Order], including an extension of the Office of

             Quality Assurance's  term, up to and  including December 31,

             1992."    On June 24,  1992, the district court  granted the

             plaintiffs' motion, thereby extending the October 1986 Order

             for six  more months.    The district  court considered  the

             request for  extension "reasonable,"  in light of  the facts

-4-
                                          4

that plaintiffs were supposed  to respond to the defendants'

             submissions by mid-July, that the OQA was to submit a report

             by mid-August,  and that  the court, thereafter,  would have

             "to assess defendants' compliance . . . ."  

                       Defendants  now appeal the  district court's order

             of June 24, 1992,  extending the October 1986 Order  for six

             months (the  "June 1992  extension").  They  basically claim

             that the  district court  should have permitted  the October

             1986 Order to terminate  because they had completed all  the

             "tasks,"  and  fulfilled  all   the  requirements,  that  it

             contained  --  a  claim that  plaintiffs  strongly  dispute.

             Plaintiffs  add  that  we  should  not  decide  whether  the

             defendants  have, or have  not, fulfilled  their obligations

             under the October 1986 Order  because the district court has

             not yet had the  opportunity to determine the matter.   They

             argue that  we lack jurisdiction to  hear this interlocutory

             appeal.  

                       We  agree   with  the  plaintiffs  that   we  lack

             jurisdiction to hear this  appeal.  The June  1992 extension

             is not  a "final" order  within the  meaning of 28  U.S.C.  

             1291;  nor  does it  fall  within  the statutory  exceptions

             permitting  appeals  of certain  "interlocutory"  orders. 28

             U.S.C.   1292.  Common sense suggests that this court should

-5-
                                          5

withhold its review until the district court enters an order

             on  the merits,  either accepting  or  rejecting defendants'

             claim  of compliance.  Such a decision, coming after all the

             parties have  submitted relevant  materials to  the district

             court, would permit any  subsequent appellate review to take

             place on  a complete record,  aided by the  district court's

             own analysis  and opinion.   Moreover, the  record indicates

             that the district court intends to consider  the matter both

             thoroughly  and expeditiously.    Thus, the  time needed  to

             bring  about a  considered  district court  decision on  the

             merits  is comparatively  short, given  the many  years this

             important litigation has been  before the judiciary; and the

             added burden upon the state, in maintaining the existence of

             the  OQA for six more  months, is comparatively  small.  Cf.
                                                                      ___

             Carson v. American Brands,  Inc., 450 U.S. 79, 84  (1981) ( 
             ______    ______________________

             1292(a)(1)  provides for interlocutory appellate review over

             an order  denying an injunction, where  plaintiff shows that

             order   might   have   a   serious,   perhaps   irreparable,

             consequence, and that  order can  be effectually  challenged

             only  by  immediate  appeal);  Kartell  v.  Blue  Shield  of
                                            _______      ________________

             Massachusetts, Inc.,  687 F.2d  543, 551-52 (1st  Cir. 1982)
             ___________________

             (same).

-6-
                                          6

The only significant  legal question before  us is

             whether,  despite the dictates of common sense, we must hear

             this  appeal on  the grounds  that the  June 1992  extension

             falls within the literal terms of the jurisdictional statute

             permitting  appeals  from  "[i]nterlocutory  orders  of  the

             district courts . .  . continuing . . . injunctions . . . ."

             28  U.S.C.   1292(a)(1).  The defendants argue that the June

             1992   extension   of  the   October   1986   Order  is   an

             "interlocutory order"  that "continu[es]" an injunction.  In

             our view, however, the June 1992 extension does not continue
                                                             ___

             an injunction that would  have otherwise stood "dissolved by

             lapse of the time fixed in the original order."  Sierra Club
                                                              ___________

             v.  Marsh, 907  F.2d  210,  213  (1st Cir.  1990)  (citation
                 _____

             omitted).   A  careful  reading of  the  October 1986  Order

             indicates that the Order was not to expire  automatically at
                                          ___

             a set time (initially  set at three years) after  its entry.

             Rather, the  Order  says that  the  parties may  "seek"  the

             court's  "counsel"  during  the  set three  years  and  that

             "[n]inety  (90) days  prior to  the end  of this  three year

             period,   the  court   shall  hold   a  hearing   to  review

             implementation  . .  .  ."   One  might say  that the  Order

             contemplates  termination after  the set  time; one  can add
             ____________

             that it requires  the district  court to plan  a hearing  to

-7-
                                          7

consider compliance three months  prior to the expiration of

             the set  time; but one cannot fairly  say that the Order, by

             its  own terms,  simply expires  while the  court is  in the

             midst  of  the very  "compliance  determination" proceedings

             that the Order  contemplates.  To the  contrary, the decree,

             technically speaking,  would seem  to expire only  after the
                                                                _____

             court,  proceeding  with  reasonable  speed,  has  held  the

             required  hearing and found compliance.  This interpretation

             draws support from the  district court's own  interpretation

             of the October 1986 Order, when (in 1989) that court wrote:

                       In  my  order  of  October  9,  1986,  I
                       provided  for a three year period during
                       which  defendants  were  to  complete  a
                       number of projects affecting the various
                       institutions  covered by  the underlying
                       consent  decrees.    The  completion  of
                       these   tasks   was,   and  remains,   a
                       prerequisite     to     this     court's
                       disengagement     in    these     cases.
                       Recognizing that it was uncertain  as to
                       whether  all  that remained  to  be done
                       could be completed within the three year
                       period,  the  October   9,  1986   order
                       provided   that   I  would   review  the
                       situation during the fall of 1989.  

                       We concede  that the October 1986  Order also says

             that the OQA will  "be initially chartered for a  three year

             term" and that the  district court also said the  OQA "shall

             be  maintained by the Commonwealth for a three year period .

             . .  ."  But we cannot read  these words (the first found in

-8-
                                          8

the Order's Appendix; the  second found in the  Opinion, not

             the  Order) as creating  a kind of  automatic termination in

             the midst of compliance  proceedings and (as just explained)

             contrary to the Order's apparent intent.  

Since we  cannot read the June  1992 extension as,

             technically speaking, "continuing"  an injunction that would

             have otherwise expired,  we are legally free to consider the

             matter  from a practical point of view.  See Marsh, 907 F.2d
                                                      ___ _____

             at  214 & n.2.  And the common sense considerations outlined

             above lead us to  conclude that, as a practical  matter, the

             June  1992 extension  represents a  brief procedural  delay,

             necessary  for the  district court  to resolve  properly the

             substantive  issues.  That being so, it does not fall within

             the  scope  of 28  U.S.C.  1292(a)(1)'s  language giving  us

             jurisdiction.     Id.  at  214-15   (refusing  interlocutory
                               ___

             appellate review  over a  district court  order that "was  a

             step in  controlling the litigation before  the trial court"

             and did not continue  an injunction "in any jurisdictionally

             significant  respect") (citation omitted).  Consequently, we

             must dismiss this appeal.

                       Since  the question  of  jurisdiction is  a fairly

             close  one,  we add  that it  would  not likely  benefit the

             appellants to obtain jurisdiction, for the practical, common

-9-
                                          9

sense considerations we have mentioned would balance heavily

             in favor of permitting a six-month procedurally-necessitated

             extension of  the October  1986 Order's  life.   Cf. Planned
                                                              ___ _______

             Parenthood  League v.  Bellotti, 641  F.2d 1006,  1009, 1023
             __________________     ________

             (1st Cir. 1981) (issuance of  preliminary injunction depends

             upon  balance of  harms, equities,  and public  interest, as

             well  as  likelihood of  success  on the  merits);  Chalk v.
                                                                 _____

             United  States Dist. Court  Cent. Dist.,  840 F.2d  701, 704
             _______________________________________

             (9th Cir. 1988) (basic function of preliminary injunction is

             to preserve  status quo  pending determination of  action on
                          __________

             merits).

                       Regardless,   for   the   jurisdictional   reasons

             discussed, the appeal is

                       Dismissed. 
                       _________

-10-
                                          10