                   United States Court of Appeals,

                            Eleventh Circuit.

                       Nos. 95-6637, 95-6875.

  Ricky WYATT, By and Through his Aunt and Legal Guardian, Mrs.
W.C. RAWLINS, Jr.; Glenda Brandner, By and Through her husband and
legal guardian, Wolfgang Brandner; David S. Schoel, By and Through
his father and legal guardian, J. Fred Schoel, Jr.; D.A.R. Peyman,
Dr., for himself and all others similarly situated;      Joseph L.
Moudry, for himself and all others similarly situated; et al.,
Plaintiffs-Appellees,

Diane Martin; Mary Beth Parker; William Smith; Adelia Keebler;
Michael Guins, et al., Plaintiffs-Intervenors-Appellees,

                                     v.

 Virginia ROGERS, as Commissioner of Mental Health and the State
of Alabama Mental Health Officer; James F. Reddoch, Jr., Director,
Bryce Hospital;    John T. Bartlett, Searcy Hospital;      Kay V.
Greenwood, North Alabama Regional Hospital; Dr. Larry L. Latham,
Greil Memorial Psychiatric Hospital;        et al., Defendants-
Appellants,

                  United States of America, Amicus.

                              Aug. 8, 1996.

Appeals from the United States District Court for the Middle
District of Alabama. (No. CV-70-T-3195-N), Myron H. Thompson, Chief
Judge.

Before TJOFLAT,    Chief    Judge,   and   RONEY   and   CAMPBELL*,    Senior
Circuit Judges.

     TJOFLAT, Chief Judge:

                                     I.

     This case began on October 23, 1970, when patients at Bryce

Hospital,   a   state-run   institution     for    the   mentally     ill   in

Tuscaloosa, Alabama, filed suit in the United States District Court

for the Middle District of Alabama against the commissioner and

deputy commissioner of the Alabama Department of Mental Health and

     *
      Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
Mental Retardation ("DMH/MR"), the members of the Alabama Mental

Health Board, the governor of Alabama, and Alabama's probate

judges.1   These patients alleged that the conditions at Bryce

Hospital were such that they had been deprived of their rights

under the United States Constitution.2

     1
      Since the beginning of the litigation, the parties and the
courts have treated this case as a class action, even though the
district court has failed to certify a plaintiff class. See,
e.g., Wyatt v. Stickney, 325 F.Supp. 781, 782 (M.D.Ala.1971)
("This is a class action.... The plaintiffs sue on behalf of
themselves and on behalf of other members of their respective
classes."); Wyatt v. Aderholt, 503 F.2d 1305, 1306 (5th
Cir.1974) ("The guardians of patients ... brought this class
action on behalf of their wards and other civilly committed
patients."). One of the issues on appeal is the propriety of the
district court's "recertification" of a plaintiff class. See
infra part IV.
     2
      The lawsuit was filed after staff members at Bryce Hospital
and other DMH/MR institutions were discharged as a result of a
state "budgetary crisis." These discharged staff members joined
the Bryce Hospital patients as party plaintiffs and sought
reinstatement to their positions. Both groups of plaintiffs
sought to

           redress the deprivation, under color of laws and
           statutes of the State of Alabama, of rights,
           privileges, and immunities secured by the Fifth, Eighth
           and Fourteenth Amendments to the Constitution of the
           United States, providing for equal rights of all
           persons within the jurisdiction of the United States.

          The patients alleged that the staff reductions would
     have two harmful consequences. First, patients
     involuntarily committed to Bryce Hospital would not receive
     the care that Alabama law required that they receive. Such
     lack of care, it was alleged, would deprive the patients of
     "due process" because the patients would be subjected to
     what amounted to penal confinement. Second, the staff
     reductions and consequent lack of adequate treatment
     programs would have "serious and irreparable consequences"
     for the patients at Bryce Hospital. The patients asked the
     district court to enter a permanent injunction ordering the
     defendants to "insure and direct that no present course of
     mental health treatment and service now being given to
     plaintiffs ... shall in any way be interrupted, changed, or
     interfered with." The patients also sought an injunction
     that would end further involuntary commitment of patients to
     On March 12, 1971, following a hearing on the plaintiffs'

application for preliminary injunctive relief, the district court

found that patients at Bryce Hospital were being denied their

"constitutional right to receive such individual treatment as will

give each of them a realistic opportunity to be cured or to improve

his or her mental condition."3   Wyatt v. Stickney, 325 F.Supp. 781,


     Bryce Hospital.

          The discharged staff members alleged that they had a
     right under Alabama law to remain in their jobs, that their
     discharge violated their due process right to
     pre-termination hearings, and that the defendants had other
     means of meeting the budgetary crisis aside from cutting
     staff. They sought an injunction that would require the
     defendants to "rescind" all staff terminations at Bryce
     Hospital. These staff members subsequently abandoned their
     claims and withdrew from the case, leaving the patients as
     the only plaintiffs. See Wyatt, 325 F.Supp. at 782 n. 1.

          In 1974, the former Fifth Circuit described the
     patients' complaint and the subsequent amendment to that
     pleading as follows:

               The original complaint did not allege that
          treatment levels at Bryce had been inadequate before
          the [staff] terminations. For reasons not entirely
          clear from the record before us, however, the focus of
          the litigation soon shifted from the effects of the
          [staff] terminations to questions of the overall
          adequacy of the treatment afforded at the Alabama state
          mental hospitals. On January 4, 1971, the plaintiffs
          amended the complaint to add prayers that the
          defendants be enjoined from operating Bryce "in a
          manner that does not conform to constitutional
          standards of delivering adequate mental treatment to
          its patients"; that the [c]ourt order defendants to
          prepare a "comprehensive constitutionally acceptable
          plan to provide adequate treatment in any state mental
          health facility"; and that the court declare that
          patients confined to a state mental health facility are
          entitled to "adequate, competent treatment."

     Wyatt v. Aderholt, 503 F.2d 1305, 1308 (5th Cir.1974).
     3
      The district court did not explicitly state what
constitutional provision formed the basis for its ruling. The
court found that "[t]o deprive any citizen of his or her liberty
784 (M.D.Ala.1971).        The court ordered the defendants to devise,

and to submit to the court for approval, a plan to bring the

hospital into compliance with constitutional standards of care.

     Several      months   after   the   district   court's   decision,    the

plaintiffs were given leave to amend their complaint to include

allegations of constitutionally inadequate treatment at a second

state-run hospital for the mentally ill, Searcy Hospital, in Mt.

Vernon, Alabama, and at Partlow State School and Hospital, a

state-run institution for mentally retarded persons in Partlow,

Alabama.4   Following this amendment, the court's order of March 12,

1971, was made applicable to the Searcy and Partlow facilities.

     After the defendants failed to formulate "minimum medical and

constitutional      standards"     for    the   operation     of   the   three

institutions, the district court, on April 13, 1972, established

what would become known as the "Wyatt standards," which set forth

several specific requirements for the adequate treatment of both

mentally    ill   and   mentally    retarded    individuals.5      The   court


upon the altruistic theory that the confinement is for humane
therapeutic reasons and then fail to provide adequate treatment
violates the very fundamentals of due process." Wyatt, 325
F.Supp. at 785.
     4
      As noted in the text, supra, when this suit was brought,
the plaintiffs were patients at Bryce Hospital, not Searcy
Hospital or Partlow State School and Hospital. Some of the
patients were subsequently transferred to Searcy and Partlow (or
were eligible for such transfer) and thus had standing to
complain of the conditions at those institutions. The amended
complaint alleged that the three institutions were being operated
in a "[c]onstitutionally impermissible manner which results in
scientifically and medically inadequate care," but did not cite
any specific provision of the Constitution.
     5
      The Wyatt standards were designed to meet what the district
court called the three "fundamental conditions for adequate and
effective treatment": "(1) a humane psychological and physical
enjoined the defendants to implement the standards.             See Wyatt v.

Stickney, 344 F.Supp. 373, 378-86 (M.D.Ala.1972) (Bryce and Searcy

Hospitals);      Wyatt    v.   Stickney,     344   F.Supp.    387,    394-407

(M.D.Ala.1972) (Partlow State School and Hospital).6              The former

Fifth Circuit affirmed the district court's injunctions in 1974.

Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974).             It upheld under

the Due Process Clause of the Fourteenth Amendment the plaintiffs'

constitutional right to treatment and affirmed the standards that

were promulgated by the district court.            In 1975, the district

court,   with   the   agreement   of   the   parties,   amended      its   1972

injunctions to apply the Wyatt standards to all DMH/MR facilities.7


environment, (2) qualified staff in numbers sufficient to
administer adequate treatment and (3) individualized treatment
plans." See Wyatt v. Stickney, 334 F.Supp. 1341, 1343
(M.D.Ala.1971).
     6
      In the order pertaining to Bryce and Searcy Hospitals, the
court reiterated its earlier holding that civilly committed
mentally ill persons have a constitutional right to treatment.
In the order pertaining to Partlow State School, the court
outlined a "constitutional right to habilitation" for civilly
committed mentally retarded individuals so as to "give each of
[these persons] a realistic opportunity to lead a more useful and
meaningful life and to return to society." Wyatt, 344 F.Supp. at
390.
     7
      The 1975 order changed the definitions of "institution" and
"hospital" in the Wyatt standards to include "any other centers,
homes, and facilities—public or private—to which [mentally ill,
emotionally disturbed, or mentally retarded] persons are assigned
or transferred for residence" by the DMH/MR. The definition of
"residents" in the standards applicable to facilities for the
mentally retarded was changed to include "all persons who are now
confined and all persons who may be confined at ... any other
institution as hereinabove defined for the care, treatment, and
habilitation of the mentally retarded." In the standards
applicable to facilities for the mentally ill, the definition of
"patients" was changed to include "all persons who are now
confined and all persons who may in the future be confined at ...
any other "hospital' as hereinabove defined for the care,
custody, and treatment of the mentally ill or emotionally
disturbed." See Wyatt v. Hardin, Civ. A. No. 3195-N, 1975 WL
     The defendants failed to comply with the Wyatt standards, and

in 1979, the governor of Alabama moved the district court to place

Alabama's     mental     health    and    mental     retardation    system      into

receivership.     See Wyatt v. Ireland, Civ. A. No. 3195-N, 1979 WL

48253 (M.D.Ala. Oct. 25, 1979).             On January 15, 1980, the court

appointed the governor receiver of all DMH/MR institutions.

         On March 9, 1981, the plaintiffs moved the court to force the

defendants to comply with the 1972 injunctive orders by ordering

them to provide "sufficient funds" to the DMH/MR so that it could
satisfy the      Wyatt    standards.        The    plaintiffs      did   not    seek

enforcement of the court's injunctive orders by using equity's

time-honored     procedures       for    obtaining    the   enforcement        of   an

injunction.     Rather, as they have done throughout this case, they

simply asked the court to "do something" to make the defendants

comply with the Wyatt standards.8           On May 18, 1981, the defendants,


33692 (M.D.Ala. Feb. 28, 1975). Although the court's injunctions
now reached private facilities in which DMH/MR placed patients,
no private facility was made a defendant in the action.
     8
      Precedent dictates that a plaintiff seeking to obtain the
defendant's compliance with the provisions of an injunctive order
move the court to issue an order requiring the defendant to show
cause why he should not be held in contempt and sanctioned for
his noncompliance. See Newman v. State of Alabama, 683 F.2d
1312, 1318 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103
S.Ct. 1773, 76 L.Ed.2d 346 (1983). In his motion, the plaintiff
cites the provision(s) of the injunction he wishes to be
enforced, alleges that the defendant has not complied with such
provision(s), and asks the court, on the basis of his
representation, to order the defendant to show cause why he
should not be adjudged in contempt and sanctioned. If the court
is satisfied that the plaintiff has made out a case for an order
to show cause, it issues the order to show cause. The defendant,
following receipt of the order, usually files a response, either
confessing his noncompliance or presenting an excuse, or "cause,"
therefor. The dispute is thereafter resolved at a show cause
hearing, with the issues to be decided at the hearing framed by
the show cause order and the defendant's response.
in response to the plaintiffs' motion, moved the court to modify

its 1972 injunctive orders to eliminate the Wyatt standards and to

substitute accreditation by the Joint Commission on Accreditation

of   Healthcare   Organizations   ("JCAHO")   as   the   standard    of

constitutionally acceptable care at DMH/MR institutions.            The



          At the hearing, if the plaintiff establishes the
     defendant's noncompliance with the court's injunctive order
     and the defendant presents no lawful excuse for his
     noncompliance, the court usually adjudges the defendant in
     civil contempt and imposes a sanction that is likely to
     prompt the defendant's compliance with the injunction.

               One sanction might be to incarcerate ... the
          defendant[ ].... While a federal court is always
          reluctant to coerce compliance with its decrees by
          incarcerating a state official, if that official is in
          contempt there can be no doubt of the court's authority
          to do so. State officials are not above the law.

               Another sanction might be to fine the recalcitrant
          official. "Civil contempt may ... be punished by a
          remedial fine, which compensates the party who won the
          injunction for the effects of his opponent's
          noncompliance.... If [a state official] refuses to
          adhere to a court order, a financial penalty may be the
          most effective means of insuring compliance." [Hutto
          v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 2573, 57
          L.Ed.2d 522 (1978).]

     Newman, 683 F.2d at 1318 (citation omitted).

          In seeking to enforce the court's injunctions in this
     case, the plaintiffs have not resorted to the traditional
     means of enforcing injunctions described above. Nor has the
     court issued orders to show cause, calling upon the
     allegedly recalcitrant defendants to explain why they have
     not complied with the injunctive provisions in question.
     Consequently, the hearings that the district court has
     convened to consider the plaintiffs' motions for enforcement
     have amounted for the most part to status conferences in
     which the court is briefed, sometimes through testimony, on
     the current conditions at DMH/MR institutions. This may
     account for the court's failure to rule on the plaintiffs'
     1981 motion to ensure compliance with the court's 1972
     injunctive orders and, as well, the plaintiffs' 1993 motion,
     described in the text, infra, to enforce the consent decree
     entered in 1986.
plaintiffs opposed the substitution.          In 1983, the court held a

hearing on both the defendants' and plaintiffs' 1981 motions, but

did not rule on them.

      The parties eventually negotiated a settlement, and submitted

it in the form of a consent decree, which the district court

approved on September 22, 1986.        See Wyatt v. Wallis, Civ. A. No.

3195-N, 1986 WL 69194 (M.D.Ala. Sept. 22, 1986).               Among other

things, the decree (1) removed the Alabama mental health and mental

retardation system from receivership;         (2) dismissed from the case

all defendants except the commissioner of mental health and mental

retardation      and   the    individual     directors    of   the    DMH/MR

institutions;     (3) continued in effect the        Wyatt standards;      (4)

enjoined the defendants to "continue to make substantial progress

in   achieving   compliance    with"   the   Wyatt   standards;      and   (5)

enjoined the defendants to seek and maintain JCAHO accreditation at

all DMH/MR institutions.

      On December 20, 1990, patients at the Thomasville Adult

Adjustment Center in Thomasville, Alabama, moved the district court

for leave to intervene in the litigation as plaintiffs.9             In their

proposed complaint, the intervenors alleged that the defendants had

violated the Wyatt standards and that certain unconstitutional

conditions existed at Thomasville.10           The intervenors sought a

      9
      Patients at Thomasville were already members of the
plaintiff "class," as defined by the Wyatt standards. See Wyatt,
Civ. A. No. 3195-N (M.D.Ala. Feb. 28, 1975) (changing the
definition of "hospital" in the Wyatt standards specifically to
include the Thomasville Adult Adjustment Center).
      10
      Among other things, the intervenors claimed that
"Alabama's indeterminate involuntary civil confinement of the
mentally ill violate[d] the Due Process Clause of the Fourteenth
permanent injunction barring further admissions to the Center until

the   defendants    complied   with     the       Wyatt   standards    at    that

institution. The court granted the Thomasville patients' motion to

intervene on January 25, 1991, and, in October of that year, held

a bench trial on their claims.        The district court has yet to rule

on this matter.11

                                    II.

      On January 18, 1991, before the district court ruled on the

Thomasville    patients'   motion      to     intervene,       the   defendants,

acknowledging that they were not in compliance with all of the

Wyatt standards at DMH/MR institutions, nonetheless moved the

district court to terminate the 1986 consent decree and to dismiss

the case.     On April 19, 1991, the defendants, apparently as an

alternative measure, moved the court to modify the consent decree

by deleting or modifying several of the Wyatt standards.                Early in

1993, while these motions were still pending, the plaintiffs moved

the district court for "a finding that the defendants are violating

the   1986    Consent   Decree"   and       for    "contempt     sanctions   for




Amendment" because the state did not limit the length of the
confinement and the DMH/MR failed to provide for periodic
adversarial post-commitment reviews of such confinement. See
Wyatt v. King, 773 F.Supp. 1508, 1511 (M.D.Ala.1991). On July
22, 1991, the district court granted the intervenors relief on
this claim, declaring Alabama's "indeterminate involuntary civil
commitment of the mentally ill" unconstitutional and ordering
periodic adversarial post-commitment reviews. Id. at 1517-18.
      11
      The defendants have petitioned this court for a writ of
mandamus compelling the district court to rule on the
intervenors' claim of unconstitutional conditions at Thomasville.
See In re Fetner, No. 95-6879 (11th Cir. filed Oct. 23, 1995).
This court stayed the petition pending the resolution of the
instant appeals.
defendants' violations."12       The court ordered that the defendants'

and the plaintiffs' motions be heard together at an evidentiary

hearing.13

      The hearing was held from March 13 to May 16, 1995.             On the

first day of the hearing, the court announced at a meeting in

chambers that, in response to deposition testimony describing

unsafe living conditions at the Eufaula Adolescent Center in

Eufaula,     Alabama,    it    was    considering    entering     preliminary

injunctive relief on behalf of the patients at Eufaula.             On April

17, the plaintiffs formally moved the court to provide such relief,

and   on   July   11,   the   court   entered   a   preliminary    injunction

enjoining the defendants from "failing to take immediate and

affirmative steps to provide for the safety and protection from

abuse of all resident children at the Eufaula Adolescent Center, as

      12
      Unlike their previous motion to enforce the district
court's injunctive orders, see supra note 8, on this occasion
plaintiffs' motion alleged that the defendants were violating the
1986 consent decree and sought a contempt adjudication and
sanctions. Like the previous motion, however, the motion failed
to allege, with specificity sufficient to inform the defendants,
which injunctive provisions the defendants were purportedly
violating.

           On the same day that they filed the above motion, the
      plaintiffs moved the court for leave to amend their
      complaint to assert a claim for declaratory and injunctive
      relief on the ground that the defendants were violating
      provisions of the newly enacted Americans with Disabilities
      Act of 1990, Pub.L. No. 101-336, 104 Stat. 328. In effect,
      the plaintiffs sought leave to bring an entirely new
      lawsuit. The claims under the Americans with Disabilities
      Act were unrelated to the case at hand, but the district
      court granted the motion to amend.
      13
      With respect to the plaintiffs' motion that the defendants
be held in contempt for violating the 1986 consent decree, the
court did not determine whether the motion was sufficient to
warrant the issuance of an order to show cause, see supra note 8;
rather, the court simply scheduled an evidentiary hearing.
required by [the Wyatt standards]."            Wyatt v. Poundstone, 892

F.Supp. 1410, 1423 (M.D.Ala.1995).          The court further ordered the

defendants to submit a plan to the court to "address and resolve

immediately the severe and pervasive safety problems and abuse of

resident children at Eufaula Adolescent Center."             Id. at 1423-24.

The defendants appeal the preliminary injunction in No. 95-6637,

contending   that   the   district    court   abused   its    discretion   in

ordering the relief it granted.         After the appeal was taken, the

district court, on September 15, 1995, approved a one-year remedial

plan for Eufaula.

      The Eufaula Adolescent Center is now closed;             there are no

patients residing at the facility.          Further, it appears that the

state is not likely to reopen Eufaula prior to September 15, 1996,

the date on which the defendants' plan (and thus the preliminary

injunction) expires.      The appeal is therefore moot.14

                                     III.

     On August 17, 1995, a month after the entry of the preliminary

injunction, the defendants moved the district judge to disqualify

himself from the case, alleging (1) that the judge has acted in a

manner "in which his impartiality might reasonably be questioned,"


     14
      On August 1, 1995, the defendants asked the district court
to stay the preliminary injunction pending this appeal; the
district court denied their request a week later. After the
DMH/MR announced that it was closing Eufaula, the district court
stayed the preliminary injunction because it found "the need for
the preliminary injunction ... is moot." Wyatt v. Fetner, Civ.
A. No. 3195-N (M.D.Ala. Mar. 22, 1996). (The district court also
informed this court that upon remand of this appeal it will
dissolve the preliminary injunction.) The defendants have
appealed the stay order, Wyatt v. Fetner, No. 96-6279 (11th Cir.
filed Mar. 22, 1996); we dismiss this appeal as moot in a
separate unpublished opinion.
28 U.S.C. § 455(a);     and (2) that "in private practice he served as

lawyer in the matter in controversy," 28 U.S.C. § 455(b)(2).15     On

October 3, 1995, the judge denied the motion.          The defendants

appeal this denial in No. 95-6875.

      An interlocutory appeal does not lie from the denial of a

motion to disqualify a district judge.          See United States v.

Gregory, 656 F.2d 1132, 1136 (5th Cir. Unit B Sept. 1981);      In re

Corrugated Container Antitrust Litig., 614 F.2d 958, 960-61 (5th

Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114

(1980).16     The defendants contend, however, that an order denying

a motion to disqualify is appealable if it is pendent to a final or

otherwise appealable order.       See Stewart v. Baldwin County Bd. of

Educ., 908 F.2d 1499, 1509 (11th Cir.1990) ("Pendent jurisdiction

is properly exercised over nonappealable decisions of the district

     15
          Section 455 provides:

          (a) Any justice, judge, or magistrate of the United
     States shall disqualify himself in any proceeding in which
     his impartiality might reasonably be questioned.

          (b) He shall also disqualify himself in the following
     circumstances:

                  (1) Where he has a personal bias or prejudice
             concerning a party, or personal knowledge of disputed
             evidentiary facts concerning the proceeding;

                  (2) Where in private practice he served as lawyer
             in the matter in controversy, or a lawyer with whom he
             previously practiced law served during such association
             as a lawyer concerning the matter, or the judge or such
             lawyer has been a material witness concerning it.

     28 U.S.C. § 455(a), (b)(1)-(2).
     16
      In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
court when the reviewing court already has jurisdiction over one

issue in the case.");     see also Swint v. Chambers County Comm'n, --

- U.S. ----, ---- & n. 2, 115 S.Ct. 1203, 1209 & n. 2, 131 L.Ed.2d

60   (1995)   (discussing    the     doctrine     of   "pendent      appellate

jurisdiction").      Here, the defendants claim that the district

court's denial of the motion to disqualify is pendent to and

appealable with its order granting the plaintiffs preliminary

injunctive relief at Eufaula, which the defendants appeal in No.

95-6637.

     The appeal of the preliminary injunction is moot.                   See supra

part II.    Thus, even were the unappealable disqualification order

pendent to the appealable preliminary injunction, the denial of the

motion to disqualify is no longer pendent to any reviewable order.

The court's order would be reviewable on a petition for a writ of

mandamus.     See   Corrugated    Container,     614   F.2d   at    961     n.    4.

Defendants have not submitted such a petition, however, and we

decline on our own initiative to treat their appeal of the court's

order as a mandamus petition.17          We therefore have no jurisdiction

to review the district court's order denying the defendants' motion

to disqualify.

                                     IV.

     On December 22, 1994, the defendants moved the district court

to   "recertify"    or   modify    the    plaintiff    class,      or,    in     the

     17
      The defendants have petitioned for a writ of mandamus to
disqualify the district judge from the case of Lynch v. Evans,
Civ. A. No. 74-T-89-N (M.D.Ala.), another longstanding case
concerning Alabama's mental health system. The petition, In re
Fetner, No. 95-6728 (11th Cir. filed Sept. 5, 1995), was
consolidated with these appeals for oral argument. We dismiss
the petition as moot in a separate unpublished opinion.
alternative, to "decertify" the class, because a plaintiff class

had never been certified in the case.18       On October 3, 1995, the

same day the court denied the defendants' motion to disqualify the

district judge, the court denied the motion to decertify the

plaintiff class.     At the same time, the court "recertified" the

plaintiff class.19    See Wyatt v. Poundstone,    Civ. A. No. 3195-N

(M.D.Ala. Oct. 3, 1995). In No. 95-6875, the defendants appeal the

district court's refusal to decertify the plaintiff class and its

recertification of that class.

        Class recertification orders are not final orders within the

meaning of 28 U.S.C. § 1291;      as such, they are ordinarily not

appealable.    See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-

69, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978);              Elster v.

Alexander, 608 F.2d 196, 197 (5th Cir.1979);      Knox v. Amalgamated

Meat    Cutters & Butchers Workmen,     520   F.2d   1205,   1206   (5th

Cir.1975).    Likewise, 28 U.S.C. § 1292(a) does not provide for

interlocutory appellate review of such orders.         The defendants

contend that the recertification order, like the court's denial of

the motion to disqualify, is appealable because it is pendent to

the appealable order granting preliminary injunctive relief. As we


       18
      See supra note 1. The defendants also contended that the
plaintiff class should be decertified because the named
plaintiffs' claims had become moot. The district court, however,
allowed a new group of plaintiffs whose claims are not moot (the
Hanna class) to "intervene" in the case, essentially substituting
them for the Wyatt plaintiffs.
       19
      The plaintiff class is now defined as "mentally-ill and
mentally-retarded individuals who live in hospitals, centers,
facilities, or homes, public or private, to which the individual
has been assigned or transferred to by the [DMH/MR]." Wyatt v.
Poundstone, Civ. A. No. 3195-N (M.D.Ala. Oct. 3, 1995).
have   explained,      see   supra    part   III,   because   the     preliminary

injunction is moot, the recertification order is no longer pendent

to any reviewable order.             We therefore have no jurisdiction to

review      the   district   court's    order     refusing   to   decertify   the

plaintiff class and recertifying that class.

                                        V.

       In   conclusion,      the   appeal    of   the   preliminary   injunction

entered on July 11, 1995, is DISMISSED as moot (No. 95-6637), and

the appeal of the district court's orders of October 3, 1995, is

DISMISSED for lack of appellate jurisdiction (No. 95-6875).                   All

outstanding motions before this court pertaining to these appeals

are hereby DENIED as moot.

       SO ORDERED.
