Ricci v. Okin, M.D.
U.S. Court of Appeals for the First Circuit
Ricci v. Okin, M.D.
Opinion
USCA1 Opinion
October 30, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1812
ROBERT SIMPSON RICCI, ET AL.,
Plaintiffs, Appellees,
v.
ROBERT L. OKIN, M.D., ET AL.,
Defendants, Appellees.
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WILLIAM F. WELD, ETC., ET AL.,
Defendants, Appellants.
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APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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David Ferleger, Special Assistant Attorney General, with whom
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Scott Harshbarger, Attorney General, Douglas H. Wilkins, Assistant
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Attorney General, and Kim E. Murdock, Special Assistant Attorney
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General, were on brief for appellants.
Nonnie S. Burnes with whom Michael J. Pineault, Hill & Barlow,
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P.C. and Beryl W. Cohen were on brief for appellees.
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BREYER, Chief Judge. This appeal arises out of a
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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
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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
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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
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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.
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Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981) (
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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
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Massachusetts, Inc., 687 F.2d 543, 551-52 (1st Cir. 1982)
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(same).
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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
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an injunction that would have otherwise stood "dissolved by
lapse of the time fixed in the original order." Sierra Club
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v. Marsh, 907 F.2d 210, 213 (1st Cir. 1990) (citation
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omitted). A careful reading of the October 1986 Order
indicates that the Order was not to expire automatically at
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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
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that it requires the district court to plan a hearing to
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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
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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
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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
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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
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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
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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
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Parenthood League v. Bellotti, 641 F.2d 1006, 1009, 1023
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(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.
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United States Dist. Court Cent. Dist., 840 F.2d 701, 704
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(9th Cir. 1988) (basic function of preliminary injunction is
to preserve status quo pending determination of action on
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merits).
Regardless, for the jurisdictional reasons
discussed, the appeal is
Dismissed.
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Reference
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