
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.                                 ____________________                    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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -10-                 The judgment of  the district court  is vacated and  the                                                         _______            case remanded for further proceedings.  No costs.                                         -11-                                         -11-
