
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
