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

                             -2-

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

                             -3-

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
     

                             -4-

     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. 

                             -5-

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.
                       

                             -6-

     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

                             -7-

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,

                             -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

                    

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.  

                             -9-

     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.

                             -10-

     The judgment of  the district court  is vacated and  the
                                                    

case remanded for further proceedings.  No costs.

                             -11-
