UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
________________
No. 90-1339
ROBERTO NAVARRO-AYALA, ET AL.,
Plaintiffs, Appellees,
v.
RAFAEL HERNANDEZ-COLON, ET AL.,
Defendants, Appellants.
________________
ERRATA SHEET
The opinion of this court issued on December 18, 1991 is
amended as follows:
On page 23, line 8 from bottom of full paragraph, change
"amendments." to "amendment."
_
On page 28, line 1 of full paragraph, replace "A second"
with "Another".
On page 32, line 2 of first paragraph, insert "who" before
"were" and delete "now".
On page 35, line 4, replace "928 F.2d" with "Id."
___
On page 39, line 6 of first full paragraph, change
"stipulations" to "stipulation", and on line 7, replace "consent
_
decree" with "stipulation".
On page 40, line 8 of footnote 19, insert "indicating" after
"figures".
On page 44, line 10, insert "former or would-be" at end of
line after "its".
On page 46, line 18, replace "B". with "B."
On page 49, line 7 from bottom of full paragraph, change
"judiciary" to "judicial". Also on page 49, in footnote 21,
lines 2 and 3, replace "consent decree." with "stipulation.", and
on line 5, replace "decree." with "stipulation."
On page 50, line 3 of second paragraph, replace
"overcrowding" with "overcrowded" and also on page 50, in
continuation of footnote 21 from page 49, line 2, replace "42-
44." with "43-44.", and replace "While" with "And while".
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No. 90-1339
ROBERTO NAVARRO-AYALA, ET AL.,
Plaintiffs, Appellees,
v.
RAFAEL HERNANDEZ-COLON, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Campbell, Torruella and Cyr,
Circuit Judges.
______________
____________________
Jorge E. Perez-Diaz, Solicitor General, Department of Justice,
____________________
with whom Norma Cotti-Cruz, Deputy Solicitor General, was on brief for
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appellants.
Armando Cardona-Acaba, Puerto Rico Legal Services, for appellees.
_____________________
____________________
____________________
CAMPBELL, Circuit Judge. The two issues raised by
_____________
this appeal are: (1) whether the action below is a class
action, even though the district court never certified a
class as required by Fed. R. Civ. P. 23(c)(1), and gave no
notice to class members; and (2) whether the stipulation
executed by the parties and approved and entered in the court
record by the district court in 1977 conferred authority on
the district court to regulate the care given certain
patients at a separate psychiatric facility located some
distance from the institution named in the original action.
We hold that this suit is a class action and that the
provisions of the stipulation do not apply at the other
institution.
SUMMARY OF FACTS AND ISSUES
SUMMARY OF FACTS AND ISSUES
In 1974 Roberto Navarro Ayala ("Navarro"), a
mentally retarded patient at the Psychiatric Hospital of the
Commonwealth of Puerto Rico, a public mental health
institution located in Rio Piedras, San Juan ("Hospital" or
"Rio Piedras"), filed a complaint under 42 U.S.C. 1983 in
the District Court for the District of Puerto Rico, on behalf
of himself and all others at the Hospital, asserting that the
inhumane conditions there violated plaintiffs' constitutional
rights. Included as defendants were the Governor and other
Commonwealth officials having control over the Hospital.
-4-
In 1977, before trial, the parties executed, and
the district court approved, a stipulation effectively ending
the suit. The stipulation provided for numerous specified
improvements in respect to what was termed the "institution
and its residents." The word "institution" was defined in
the stipulation as being "The Commonwealth of Puerto Rico
Psychiatric Hospital as presently constituted or in
Decentralized form."
In the ensuing fourteen years, defendants have
taken many steps under the supervision of the district court
to comply with the terms of the stipulation. Recently,
however, disputes have arisen as to the court's right to
force the defendants to apply the stipulated measures at a
different facility known as the Guerrero Therapeutic
Community ("Guerrero") to which certain of the Hospital's
former patients were sent as part of the process of relieving
overcrowding at the Hospital. Defendants contend (1) that
the district court's jurisdiction is limited to ordering
relief to Navarro personally, the only named plaintiff,
because a class of patients was never certified, and notice
was never given to the class; and (2) that the stipulation
currently governs only the care and treatment of patients at
the Psychiatric Hospital in Rio Piedras, within the
municipality of San Juan, and does not regulate the care and
treatment of patients at Guerrero.
-5-
In a March 6, 1990 "Opinion and Order," the
district court held that this suit was a class action. The
court also reaffirmed its position that it had "jurisdiction"
not only over Rio Piedras but also over Guerrero in respect
to the treatment and living conditions of former Rio Piedras
patients there. Defendants appealed from these rulings.
BACKGROUND
BACKGROUND
A. The Institution
_______________
During the early part of the 1970s, as now, the
Psychiatric Hospital in Rio Piedras, San Juan, was one of the
hospitals offering mental health services as part of the
Commonwealth of Puerto Rico's Department of Health Mental
Health Program. In the words of the 1977 stipulation, the
Hospital offered hospitalization 24 hours a day, emergency
psychiatric services and admissions, and outpatient
psychiatric services. According to the stipulation,
referrals came "from the Northeastern Region of Mental Health
Centers of Arecibo, Manati, Bayamon, Caguas, Carolina,
Fajardo, Humacao, San Patricio and Cayey." (We take judicial
notice that the Guerrero Therapeutic Community in dispute is
located outside and to the west of the above-named
communities; its locus, the city of Aguadilla, is in the
northwest corner of Puerto Rico, roughly 70 miles from San
Juan.)
-6-
In the early 1970s the Hospital was badly
overcrowded and urgently in need of improvement. According
to allegations of plaintiffs' complaint, it lacked essential
physical facilities, such as lockers where patients could
safely keep their personal belongings, clocks in all wards,
visible calendars, lamps, night tables, lounging areas with
comfortable chairs, pictures, magazines, books and other
items of normal daily living. Beds in the wards did not have
pillows, the laundry service was faulty, and the bathrooms
and hallways were not deodorized. Patients would be placed
naked in isolation rooms which lacked toilet facilities. Not
only were the facilities faulty, but so, too, was the
treatment. Therapeutic treatment was insufficient, as the
Hospital was understaffed. Many patients allegedly did not
have comprehensive habilitation plans addressed to their
individual needs; and, in some wards, patients were grouped
according to their geographical origin, regardless of their
mental condition and needs.
B. The Plaintiff
_____________
Roberto Navarro Ayala ("Navarro") was referred to a
social worker at the Psychiatric Hospital in Rio Piedras in
1970, when he was 19 years old because of "abnormal
behavior." After attempts to treat Navarro's mental illness
using only out-patient services had failed, his mother had
him committed to the Hospital in April of 1974.
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C. Evolution of this Appeal
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On November 25, 1974, Navarro, represented by his
mother, Maria Ayala, filed a complaint in the District Court
for the District of Puerto Rico "on behalf of all allegedly
mentally incapacitated persons now residents at the
Psychiatric Hospital . . . or that are receiving mental
treatment in said Hospital." The complaint contained
detailed allegations criticizing conditions at the Hospital
and the treatment received by patients therein; included were
the allegations outlined above. The complaint alleged that
these conditions at the Psychiatric Hospital violated
provisions of the Bill of Rights of the United States
Constitution, depriving Navarro of his right to privacy, his
right not to be subjected to cruel and unusual punishment,
his right not to be subjected to involuntary servitude, his
right to equal protection under the law, and his right to
treatment. The complaint alleged that the Psychiatric
Hospital "is not a therapeutic institution. It resembles a
prison . . . ." It further alleged that the Psychiatric
Hospital's environment "is inhumane and psychologically
destructive" due to overcrowding and lack of minimal physical
and health facilities. Other inadequacies of the Psychiatric
Hospital were delineated. While describing at length the
wretched conditions at the Psychiatric Hospital, the
complaint did not allege similar inadequacies at any other of
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the Commonwealth's mental health facilities. The prayers in
the complaint sought declaratory and injunctive relief solely
at the Hospital: they requested a declaration that the
Psychiatric Hospital did not meet constitutionally minimum
standards; a judicial determination of what proper standards
the Constitution required for residents of the Psychiatric
Hospital; and an injunction against the unconstitutional
conditions there. The court was asked to enjoin further
admissions to the Hospital until it had determined that the
Hospital met such standards as the court specified.
The complaint named as defendants: Rafael
Hernandez Colon, as Governor of the Commonwealth of Puerto
Rico; Jose Alvarez de Choudens, then Secretary of Health of
the Commonwealth; Jose A. Nunez-Lopez, then Assistant
Secretary of Health; Erick Santos, then Director of the
Commonwealth's Psychiatric Hospital; Concepcion Perez, then
Administrator of the Hospital Center of Puerto Rico, and
their "agents, employees and/or successors in office."
1975 - June 1977: The Stipulation
__________________________________
The defendants answered the complaint on March 21,
1975, denying most of its allegations, including that the
suit was properly a class action. The defendants also denied
that the district court had jurisdiction. However, before
the case could be set for pretrial in May 1977, all parties
engaged in negotiations resulting in agreement on the terms
-9-
of a comprehensive stipulation in settlement of the lawsuit.
On April 20, 1977, they submitted the stipulated agreement
for the court's approval. The remedying of the existing
conditions at the Psychiatric Hospital was the central theme
of the stipulation; it included 86 standards that the parties
stipulated would be observed at the Hospital. Short term
plans included removal of the mentally retarded and other
long term patients who did not require this type of hospital
care to the Cayey and Bayamon Psychosocial and Rehabilitation
Centers, and included the placement of additional patients in
the foster home care program. The agreement contained no
express provisions that the 86 standards, or any of them,
would be effectuated at the Cayey and Bayamon facilities, nor
did it mention at all the Guerrero Therapeutic Community in
Aguadilla. The court approved the stipulation and on June 3,
1977 entered judgment "in accordance with all the agreements
made by the parties."
Appointment of the Special Master
_________________________________
Between July 1977 and 1984, there was little
activity in the case. On January 31, 1985, the district
court held a status conference, and, on February 1, 1985,
entered an order granting plaintiff's request that a master
be appointed.1 On February 8, 1985, the court appointed Dr.
____________________
1. Rafael Hernandez Colon was governor at the time this suit
commenced in 1974, but was replaced by Governor Carlos Romero
Barcelo in 1977. Governor Romero's tenure lasted until
-10-
David Helfeld, former Dean of the University of Puerto Rico
Law School, as Special Master ("Master"). The court charged
the Master to see to the carrying out of the stipulation
within the shortest feasible time period. The Master
periodically informed the district court of his monitoring
activities, and made recommendations on ways to achieve
compliance. The Master asserted in several of his
recommendations that bringing Rio Piedras into compliance
with the consent decree would require improvements to other
facilities as well as to Rio Piedras. As of November 1990, a
total of thirteen reports had been filed with the district
court.
On April 10, 1985, a hearing was held before the
Master on plaintiff Navarro's condition. The director of the
Hospital thereafter took measures to provide Navarro with the
care required by the consent decree. An individual treatment
plan was prepared for him.
1986 - 1990
___________
By April 11, 1986, the Hospital was still
overcrowded. The Hospital's total census was 421, not
counting 64 patients out on passes. Only 312 beds were
available and, according to the Hospital's medical director,
296 was the ideal number of patients until adequate staffing
____________________
January of 1985 when a new administration led again by
Governor Rafael Hernandez Colon replaced him.
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could be provided. A number of alternatives to solve this
problem were discussed by the defendants and the Master.
During this period the Commonwealth made available additional
funds totaling $8 million for all mental health programs.
After tendering his preliminary fourth report, the
Master asked the defendants for a compliance proposal that
would bring the case to a close. After several drafts of a
compliance plan had been proposed and rejected, on June 29,
1987, the Secretary of Health submitted a third plan ("Plan
3"). Plan 3 proposed converting the Hospital into a 250-bed
hospital treating only acute and subacute patients,2 and
transferring less severe patients to outside private
facilities paid for by the Department. Pressure on the
emergency ward was to be relieved through the use of three
ambulatory facilities. Facilities in San Patricio and
Caguas, both located in the San Juan metropolitan area, would
receive emergencies patients from the western and southern
parts of the metropolitan area, respectively. The Guerrero
Therapeutic Community, located on the western side of Puerto
Rico in Aguadilla, 70 miles from San Juan, would take in
emergency patients from the Arecibo area. Other Commonwealth
mental health facilities were also to take responsibility for
patients previously directed to the Hospital. Overcrowding
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2. Eight hundred and ninety patients a month and an average
of 10,704 a year would be treated at the Hospital, including
PIC, Emergency Ward and Triage patients.
-12-
would thus be eliminated, with care in other Commonwealth or
private facilities provided both for many emergency and
intensive care patients as well as for those patients needing
residential facilities or family-care alternatives.3
After reviewing this proposal, the Master submitted
the final version of his fourth report. The report
recommended to the court that Plan 3 "be incorporated into
the Court's Order." This report also suggested that the
court take a number of actions with respect to "pre- and
post-Hospital programs whose support is essential to the
Hospital's compliance with the Court's consent order." These
actions included requiring the Secretary to report on the
budget of such institutions and charging "[t]he mental health
system . . . with responsibility for all patients who are
neither acute or subacute." With respect to the Guerrero
facility, the Master stated that "[s]ince its initial
planning stage the Hospital has had a direct relationship
with [Guerrero]," and therefore recommended that the court
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3. Defendants represent that, as a result of the successful
operation of this plan, there is currently no overcrowding in
the Rio Piedras Psychiatric Hospital, that all the patients
there have individual treatment plans, and that an adequate
staffing pattern has been implemented. These criteria,
according to the Master's own statements in his fourth
preliminary report, are the most significant ones for
determining compliance. Plaintiffs do not appear to deny
that conditions at the Hospital are largely, if not entirely,
in compliance with the stipulation. Whether or not this is
so is a matter for the district court, subject to the rulings
herein.
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direct the defendants to set aside 144 beds in Module 7 of
Guerrero for patients transferred from the Hospital.4
On August 5, 1987, the defendants filed exceptions
and commentaries to the Master's fourth report. While noting
that "[t]he class in the present action is composed of the
patients of the Psychiatric Hospital and the institutions
wherever they may be referred to in a descentralization [sic]
program," the defendants asked that the court "maintain the
scope of the class in the above captioned case and the
stipulations agreed on by admitting from Plan 3 those
portions that apply to the Psychiatric Hospital." The
defendants now claim that, through this filing, they objected
to the application of the stipulation beyond Rio Piedras.
On August 10, 1987, in response to the Master's
fourth report and the defendants' exceptions thereto, the
court issued an order. As suggested by the Master, the order
"incorporated" Plan 3, instructed the Secretary to report on
the budgets for "the Hospital and the pre- and post-Hospital
programs whose support is essential to the Hospital's
compliance," and stated that the Commonwealth's mental health
____________________
4. The basis for the Master's statement that the Hospital
had "direct relationship" with Guerrero appears to be only
that the Assistant Secretary for Mental Health had decided to
set aside Module 7 of Guerrero, with 144 beds, for former Rio
Piedras patients. The Master did not find that there was any
direct administrative connection between the two facilities
nor did he find any other relationship between them, apart
from this reservation of beds in Guerrero.
-14-
system would be "charged" with care and treatment of patients
who were "neither acute or subacute." With respect to the
issue of "jurisdiction," the court treated the defendants'
exceptions and commentaries as an objection to its
"jurisdiction" over the "network of pre- and post-hospital
services." In response to this objection, the court stated
that it had no intention of concerning itself with matters
not directly related to the Hospital's compliance with the
stipulation. The court added, however, that "this translates
principally into a concern that pre- and post-Hospital
facilities be adequately funded. There is also the related
__________________________
concern that patients transferred from the Hospital to
_____________________________________________________________
transitional and psychiatric rehabilitation services receive
_____________________________________________________________
care and treatment consistent with the 86 stipulations." The
_______________________________________________________
defendants did not appeal from this order.
The transfer of 144 patients to Module 7 of
Guerrero took place as ordered. This transfer appears to
have been part of a large scale exodus of patients from Rio
Piedras. According to the Master's tenth report, during the
eight months following the court's August 10, 1987 order, 904
patients left the Hospital. Of these, 343 were "transferred
to the transitional services suited to their individual
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needs," and the balance apparently left the Puerto Rico
mental health system.5
At the same time these transfers were occurring,
the Master, with the consent of the defendants, conducted
several visits to various facilities, including Guerrero,
(the "tripartite visits") to assess the defendants' progress.
The Master indicated that by April 27, 1988 overcrowding at
the Rio Piedras Emergency Ward had been eliminated and the
PIC (Emergency) unit inaugurated. On May 23, 1988, the
Master submitted his sixth report to the court. The Master
stated that the acute system of care was functioning in
substantial compliance with the stipulation, and that the
process of deinstitutionalization had continued at a good
pace and was in its final phase. Notwithstanding these
improvements, plaintiffs argued in 1988 that the tripartite
visits had revealed that the transitional services offered at
several facilities other than Rio Piedras, including
Guerrero, were in need of a strengthened program of
occupational therapy. The Master, however, questioned his
own authority to address that contention, stating:
[t]hat the program of Transitional
Services can be strengthened also is
undoubtedly true, but in my opinion
questions of that sort are not covered by
the Consent Decree's . . . stipulations
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5. It appears that 383 was the total number of patients
transferred from Rio Piedras to other facilities, and that
the 144 transferred to Guerrero were included in this total.
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and, therefore, it would be inappropriate
for this report to make findings
exceeding the limited standard of
comparing the Hospital and post hospital
conditions of the 343 transferred
patients.
On June 28, 1988, the defendants submitted a motion
claiming that the case should be closed because the
government had substantially complied with the 1977
stipulation.6 The court denied this motion on December 8,
1988, ruling that the Hospital was not in "full compliance."
On May 12, 1989, the Master submitted his eighth
preliminary report covering the period of October 1988 to
April 18, 1989. The report noted the problems faced by the
Hospital in its effort to achieve full compliance. The
Department of Health had not made available a sufficient
number of transitional or post-hospitalization residential
facilities. According to the report, the failure to provide
sufficient units of transitional services was one of the
principal causes for the Hospital's failure to achieve full
compliance.
A number of meetings were then held between the
parties and the Master to determine the substantive criteria
and procedure to be followed in assessing whether full
____________________
6. The Commonwealth's basis for this motion was the Master's
judgment, expressed in his fifth report, that "with the pace
and degree of the deinstitutionalization process only one
conclusion is possible: as of November 13 [1987], the
Secretary had more than fulfilled the commitments of Plan 3."
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compliance had been achieved. Since no consensus was
reached, each party submitted its own proposal to the Master.
The Master, in his eighth preliminary report recommended to
the court that an "interdisciplinary team," consisting of a
psychiatrist, a social worker, a nurse, and an occupational
therapist, be assembled to evaluate the substantive and
procedural criteria for determining compliance. On April 15,
1989, the court issued an order appointing the members of the
interdisciplinary team and providing for their compensation.
On June 12, 1989, plaintiffs submitted to the
Master a "Motion Seeking Remedies," alleging that former
Hospital patients transferred to Guerrero were not receiving
adequate treatment. The motion alleged that there was
overcrowding at Guerrero, that the facilities were unsanitary
and more akin to a concentration camp than a therapeutic
community. The Master's interdisciplinary team was
instructed to visit Guerrero on June 19, 1989 and thereafter
report to the court on its findings and recommendations
regarding treatment at Guerrero. The interdisciplinary team
subsequently reported that former Rio Piedras patients at
Guerrero lacked complete individualized treatment plans and
were not receiving the benefits of an adequate psychiatric
rehabilitation program. Several meetings were held between
the Master and Commonwealth officials to discuss this report.
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The Commonwealth officials alleged that they faced problems
in the recruitment and retaining of personnel due to the
scarcity of professionals in the vicinity of Guerrero and the
low government salaries.
The defendants then, in a September 6, 1989 letter,
objected to the Court's "jurisdiction" over Guerrero. This
objection was formally raised before the court in an October
20, 1989 motion. On December 28, 1989, the district court
issued an opinion and order, addressing two questions. First
was "whether the court has jurisdiction over patients of the
Rio Piedras Psychiatric Hospital who have been transferred to
the Therapeutic Community at Guerrero." Second was whether
those patients had "received, or [were then receiving]
adequate psychiatric rehabilitation services."
With respect to the first question, the court
concluded that:
The Court's August 10, 1987 Order
clarified that it had jurisdiction over
Rio Piedras Psychiatric Hospital patients
transferred to Guerrero. In response to
defendant's November 20, 1989 motion, the
Court now reaffirms its jurisdiction over
the latter patients.
This "jurisdiction" empowered the court to "secure compliance
with the 86 stipulations in the Consent Decree, with the
terms of the August 10, 1987 order, and all other pertinent
orders issued by the Court." Although the court stated that
this conclusion was consistent with the language of the
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stipulation, it did not engage in any detailed analysis of
that language. Instead, it based its conclusion largely on
Guerrero's role in relieving overcrowding at Rio Piedras, the
parties' actions subsequent to the drafting of the
stipulation and its previous order of August 10, 1987. Thus
the court stated that its conclusion was grounded on the
Master's view that the Hospital "could only comply with the
stipulations if it were conceived as an integral part of a
system of mental health care which, besides the Hospital,
necessarily included a network of pre- and post-hospital
services." The court further stated that Plan 3, and the
letter commitments of the Secretary concerning Guerrero, were
proposed by the Secretary, at his initiative, accepted by the
plaintiffs, adopted by the court and incorporated in the
August 10, 1987 order. The court therefore held that,
because of its August 10 order "incorporating" Plan 3, Plan 3
was
as much a binding legal obligation as the
stipulated agreement once it was
incorporated in the Consent Decree. The
Court's August 10, 1987 Order does not
modify the stipulated agreements, as
defendants claim, but rather represents
an instrument proposed by the Secretary
and accepted by the court. It also
serves to clarify the scope of the
court's jurisdiction, which in the case
of Guerrero is explicitly included.
In addition, the court found that the defendants had
manifested their consent to its "jurisdiction" by failing to
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object to several early reports of the Master concerning the
reach of the stipulations, the tripartite visits, or the
visits of the interdisciplinary team.
Having found that it had "jurisdiction " over
former Rio Piedras patients transferred to Guerrero, the
court went on to address the plaintiffs' contention that
those patients were not receiving adequate rehabilitation
services. The court determined that those patients "were not
receiving adequate psychiatric rehabilitation services on
June 19, 1987 and for an indeterminate period of time prior
to that date." However, the court was unable to determine
whether those services had been adequate since September 6,
1989. Therefore, the court ordered the Master to develop
"criteria for evaluating Guerrero's rehabilitation services
. . . based on the stipulations, the court's August 10, 1987
Order, and, as well, the concept of a therapeutic community
as enunciated by the Mental Health Secretariat." The court
postponed its decision to fine the defendants, as requested
by the Master, to a later date.
On January 16, 1990, the defendants moved the court
under Fed. R. Civ. P. 59(e)7 to alter or amend the December
28, 1989 opinion and order. The defendants argued in their
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7. Fed. R. Civ. P. 59(e) reads
A motion to alter or amend the judgement
shall be served no later than 10 days
after entry of the judgment.
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motion that the district court's "jurisdiction" could not
extend beyond the scope of the stipulated agreement, that the
stipulation was limited to conditions of confinement and
treatment at the Rio Piedras Psychiatric Hospital and, thus,
that the court lacked "jurisdiction" over the network of pre-
and post-hospitalization services. The defendants also
argued, for the first time since their answer to the
complaint in 1975, that a class of plaintiffs had never been
certified as required by Fed. R. Civ. P. 23(c)(1).
Plaintiffs opposed the defendants' motion under Rule 59(e)
and moved for sanctions under Fed. R. Civ. P. 11, stating
that the defendants' motion under Rule 59(e) was frivolous.
On March 6, 1990, the district court issued another
opinion and order reaffirming its "jurisdiction" over the
network of pre- and post-hospitalization services and over
former Hospital patients transferred to Guerrero for largely
the same reasons as those set forth in its December 28
opinion and order. The court stated that "the stipulated
agreement was never understood as limited to conditions and
services exclusively within the Hospital," and that, even if
the stipulation's application to Guerrero "is characterized
as a modification, it was the [defendants'] doing in the
first instance." The district court also rejected the
defendants' assertion that it did not have "jurisdiction"
-22-
over these facilities based on principles of federalism. It
found the defendants' arguments "largely irrelevant."
In the March 6, 1990 opinion and order, the court
also ruled that this action had been maintained as a class
action since class certification was satisfied when the court
approved the stipulated agreement in April of 1977. As to
notice to the class members, the district court found that
the provision under Rule 23 requiring notice existed
essentially to permit individuals to request exclusion from
the class, or to enter an appearance through their own
counsel. Even if all the patients had been notified directly
or through their respective guardians, the district court
found it inconceivable that any of them would have asked to
be excluded from the benefits mandated by the agreement. The
record reflects, the court said, that in thirteen years no
patient nor his respective guardian had come forth to
complain that his rights under the stipulated agreement had
in any way not been represented adequately by counsel for
plaintiffs in the class action, nor had any member of the
class sought to be represented by his or her own counsel.
Finally, the court agreed with plaintiffs' view that the
defendants' arguments were frivolous and, pursuant to Fed. R.
Civ. P. 11 and 28 U.S.C. 1927, assessed sanctions totaling
-23-
$1,500 in attorney's fees against counsel for the
defendants.8
It is from the March 6, 1990 order that the
defendants appeal.
I. CLASS ACTION
I. CLASS ACTION
Defendants contend that the suit Navarro instituted
below never became a class action because a class was never
certified as required by Fed. R. Civ. P. 23(c)(1).9
Defendants point out that the purported members of the class
and their guardians were never notified of the proceedings in
the case, either by counsel for plaintiff or by the court-
appointed Master. Finally, defendants argue that "even
though the parties entered into a stipulated agreement which
the court approved, neither the stipulated agreement nor the
____________________
8. In April of 1990, after the defendants had filed the
notice of appeal before this court, the district court
requested that this court remand the issue of sanctions as it
appeared from the record filed by the defendants. We
remanded and on April 26, 1990 a hearing was held before the
district court for reconsideration of the Rule 11 sanctions.
In an order dated April 27, 1990, the district court vacated
the Rule 11 and 28 U.S.C. 1927 sanctions. The issue of
sanctions is no longer part of this appeal.
9. Navarro's original complaint alleged that suit was
brought on behalf of himself and "all allegedly mentally
incapacitated persons now residents at the Psychiatric
Hospital . . . or that are receiving mental treatment in said
hospital. . . ." The class plaintiffs now contend exists is
coextensive with the definition of resident of the hospital
in the stipulated agreement, to wit, "all persons who are now
patients and all persons who may in the future receive
treatment or habilitation at such institution [viz. the
Hospital]."
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court's judgment approving it describe the members of the
class." Under defendants' view, only Navarro, the individual
plaintiff, was a party to the stipulated agreement, limiting
defendants' duties to providing to Navarro alone whatever
services he was entitled to receive.
The district court rejected this narrow
characterization of the action. In its March 6, 1990 opinion
and order, it held that the class action nature of this suit
was implicitly certified by the court when, in 1977, it
entered a judgment in accordance with the terms of the
consent decree. While conceding that the court did not at
the time or thereafter notify the members of the class, the
district judge stated that it "would not only be inequitable,
it would be absurd" to declare, thirteen years after the
stipulated agreement, that a class action had not been
established.
The question of class certification here is not
simple. See generally Pasadena City Board of Education v.
_____________ __________________________________
Spangler, 427 U.S. 424, 430 (1976) (absent certification,
________
where named plaintiffs lost their interest in the lawsuit,
case would have become moot, infra). In important public
_____
interest litigation like this, we do not know how the parties
and the original judge could have overlooked a key step like
class certification. Nonetheless, we are persuaded that
because this case was instituted by a complaint seeking class
-25-
relief, implicitly granted class relief, and was conducted
for years as a de facto class action, it should and may be
recognized as such. We shall address defendants' contrary
arguments.
A. Class Certification under Fed. R. Civ. P. 23(c)(1)
__________________________________________________
It was an egregious omission for the district court
not to have determined explicitly, as soon as practicable
after this action commenced, whether it could be maintained
as a class action and, if so, the proper description of the
class. See Fed. R. Civ. P. 23(c)(1).10 Certifying the
___
class "as soon as practicable" under Rule 23(c)(1) is not a
minor formality, but is necessary to give the action a clear
definition. See Fed. R. Civ. P. 23(c)(1), advisory
___
committee's notes to 1966 amendment. By focusing on the
class issue early on, the district court identifies the
plaintiffs, demarcates the boundaries of the legal dispute
and makes provision to protect absent class members. In so
doing, of course, the district court may take advantage, to
the extent appropriate, of the parties' own agreements and
stipulations describing the nature of the suit and the
____________________
10. Fed. R. Civ. P. 23(c)(1) states:
(1) As soon as practicable after the
commencement of an action brought as a
class action, the court shall determine
by order whether it is to be so
maintained . . . .
-26-
existence of a class. See Willie M. v. Hunt, 657 F.2d 55
___ _________ ____
(4th Cir. 1981).
While express class certification is a fundamental
requirement, uncertified actions have on occasion been
recognized as class actions. When the parties stipulate that
the action is a class action and clearly define the members
of the class, and the court enters judgment pursuant to the
stipulated terms, this may sufficiently imply certification
for purposes of Fed. R. Civ. P. 23(c)(1). See Oburn v.
___ _____
Shapp, 393 F. Supp. 561 (E.D. Pa.) (holding that where the
_____
action was filed as a class action and a consent decree was
entered into, entry of the consent decree was sufficient
certification of the action as a class action under Rule 23),
aff'd on other grounds, 521 F.2d 142 (3d Cir. 1975); Bing v.
______________________ ____
Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973)
______________________
(where the plaintiff brought an action as a class action and
the district court granted class relief, but neglected to
certify the class, the district court nevertheless
"implicitly determined that th[e] suit would be maintained as
a class action").
While the Supreme Court has yet to rule directly on
the issue of implied certification, the Court has suggested,
in dicta, that parties may not be able to rely on implicit
class certification. Pasadena City Board of Education v.
__________________________________
Spangler, 427 U.S. 424 (1976). In Spangler, several students
________ ________
-27-
of a public school system sued the school board and several
of its officials, alleging unconstitutional segregation.
After trial, the district court entered a judgment holding
that the defendants' educational policies violated the
Fourteenth Amendment, and, pursuant to the court's order, the
defendants submitted a plan for systemwide relief. Four
years later, the defendants moved to modify the district
court's order. This motion was denied on the merits by the
district court, 375 F. Supp. 1304 (1975), whose decision was
affirmed by the Ninth Circuit, 519 F.2d 430 (1975). Before
considering the merits, however, the Supreme Court noted
that, because the original plaintiffs had graduated and no
class had ever been certified under Rule 23, the case would
be moot had the United States not intervened. The Court thus
rejected the plaintiffs' argument raised, insofar as
appears from the published opinions, for the first time in
the Supreme Court that "th[e] litigation was filed as a
class action, that all the parties have until now treated it
as a class action, and that the failure to obtain the class
certification required under Rule 23 is merely the absence of
a meaningless 'verbal recital.'" 427 U.S. at 430. The Court
stated that "while counsel may wish to represent a class of
unnamed individuals still attending the Pasadena public
schools . . . there has been no certification of any such
class which is or was represented by a named party to this
-28-
litigation. Except for the intervention of the United
States, we think this case would clearly be moot." Id.
___
(citations omitted).
Any expression by the Supreme Court, whether or not
in dicta, must be taken seriously. Events here, however,
come much closer than in Spangler to actual class
________
certification. Unlike in Spangler, the parties have
________
executed, and the court has approved, a written stipulation
providing not only for class-wide relief but describing those
who constitute the class. The named plaintiff, Navarro, sued
expressly on behalf of himself and "all allegedly mentally
incapacitated persons now residents at the Psychiatric
Hospital . . . or that are receiving treatment in said
Hospital." The defendants, in their answer, denied, inter
_____
alia, that the suit was properly a class action. On April 8,
____
1975, the plaintiffs filed a memorandum of law containing
detailed arguments in support of treating the case as a class
action, but before the district court could rule on this
motion, the parties submitted to the court on April 20, 1977
a stipulated agreement in resolution of the case. After
reviewing the provisions of the stipulation, the court
entered judgment on June 2, 1977 "in accordance with all the
agreements made by the parties in said stipulation." One of
the agreements so made by the parties was the stipulated
definition of "residents" of the Hospital (for whose benefit
-29-
the operative clauses of the consent decree were drafted) as
"[a]ll persons who are now patients and all persons who may
in the future receive treatment or habilitation at such
institution."
Once the plaintiffs and defendants stipulated to
these matters, and the court entered judgment in accordance
with their written stipulation, the class nature of the suit
was, in practical effect, "established." The remedies in the
stipulation clearly went far beyond the individual needs of
the named plaintiff. It was fashioned as an instrument for
Hospital-wide change, affecting all patients at Rio Piedras,
not just one patient. Consistent with the stipulation, the
sweeping hospital improvements later undertaken by the court,
Master and parties were directed at benefiting the entire
patient class, not simply at helping the named plaintiff.
Had defendants or the court not believed this was a class
action, they would hardly have taken the measures they did
for thirteen years nor would defendants have failed to raise
the issue until now.11
____________________
11. Indeed, the defendants have on at least two occasions
subsequent to signing the 1977 stipulations described the
plaintiffs as a class. See Commonwealth's "Post Trial
___
Memorandum" dated September 28, 1978 (containing in its title
the term for plaintiffs "Roberto Navarro Ayala, et al.,
_______
plaintiffs") (emphasis added); the Commonwealth's "Motion
Submitting Defendant's Exceptions and Commentaries to the
Master's Report Filed on July 22, 1987" ("Defendants
respectfully reiterate their request to maintain the scope of
the class . . . by admitting those portions that apply to the
Psychiatric Hospital").
-30-
The stipulation, moreover, specifically describes
the class members who are to benefit from the stipulated
relief. Supra. No stipulated agreement or definition
_____
appeared in Spangler. Thus, the stipulation served the
________
purpose of Rule 23 "to give clear definition to the
action," Fed. R. Civ. P. 23(c)(1) advisory committee's notes
to 1966 amendment even though it did not use the words
"class" as such.
Another difference between this case and Spangler
________
is that, in the proceeding from which this appeal was taken,
the question of whether this was a class action was presented
to the district court, which found that it was. The
defendants had argued the contrary position to the court.
The court concluded that, while the original judge had never
expressly certified a class, a class had been intended and
was defined in the stipulation, and that the court, the
parties and the Master had continuously viewed and treated
the case as a class action. Thus the court of appeals is not
being asked to imply certification for the first time on
appeal from whatever it can discern of the actions of the
parties below, as in Spangler. Rather the matter of class
________
certification comes to us, after adversarial presentation
below, with the benefit of a district court finding. The
situation is close to that where a district court certifies a
class retroactively after judgment, having inadvertently
-31-
failed to act earlier on a certification motion. See Gurule
___ ______
v. Wilson, 635 F.2d 782, 790 (10th Cir. 1980); Marshall v.
______ ________
Kirkland, 602 F.2d 1282, 1301 (8th Cir. 1979). Thus,
________
notwithstanding the concerns Spangler raises, we think it
________
proper to uphold the district court's recent ruling
sustaining the class nature of this suit.12 We hold that
the action may proceed as a class action.
B. Notice to the Members of the Class
__________________________________
Defendants also complain that neither the patients
nor their guardians were given any notice regarding the
proceedings in this case, either by counsel for the plaintiff
or by the court-appointed Master. Defendants appear to focus
on Rule 23(e), but since Rule 23(d)(2) as well as Rule 23(e)
refers to notice, we review the arguments under both.
____________________
12. Since Spangler was decided, the Fifth Circuit (which
________
decided Bing v. Roadway Express, supra), has continued to
____ _______________ _____
hold that a class action may proceed despite the district
court's failure to certify a class where the "defendant[s]
. . . knew of the class nature of th[e] action and acquiesced
in it." Graves v. Walton County Board of Education, 686 F.2d
______ ________________________________
1135, 1139 (5th Cir. 1982).
-32-
Rule 23(d)(2)13 indicates that notice is not
mandatory, but may be required by the court.
___
"Subdivision (d)(2) does not require
notice at any stage, but rather calls
attention to its availability and invokes
the court's discretion. In the degree
that there is cohesiveness or unity in
the class and the representation is
effective, the need for notice to the
class will tend toward a minimum . . . ."
Fed. R. Civ. P. 23(d), advisory committee's notes to 1966
amendment. Hence, the notice contemplated under Rule
23(d)(2) is discretionary. Penson v. Terminal Transport Co.,
______ ______________________
634 F.2d 989, 993 (5th Cir. 1981); United States v.
_______________
Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 878 n.86
___________________________________
(5th Cir. 1975), cert. denied, 425 U.S. 944 (1976).
_____ ______
Commentators have stated that adequate representation alone
will comply with the due process demands of the rule,
obviating constitutional need for notification of class
certification. H. Newberg, Newberg on Class Actions, 8.16
_________________________
(2d ed. 1985). Thus, Rule 23(d)(2) did not require the
____________________
13. Fed. R. Civ. P. 23(d) reads in relevant part
In the conduct of actions to which this
rule applies, the court may make
appropriate orders: . . . (2) requiring,
for the protection of the members of the
class or otherwise for the fair conduct
of the action, that notice be given in
such manner as the court may direct to
some or all of the members of any step in
the action, . . .
-33-
district court to give notice of class certification to the
patients or their guardians.
The language of Rule 23(e),14 on the other hand,
directs that notice be given to "all members of the class"
_______
before dismissal or compromise of a class action. Here,
although the stipulation effectively compromised the case,
the district court entered judgment under the stipulation
without first giving notice to class members. But while Rule
23(e) directs the giving of notice, it leaves the form of the
notice to the court's discretion; for this reason, courts
have sometimes overlooked the absence of notice where there
was clearly no prejudice to class members. See, e.g., Larkin
___ ____ ______
General Hospital, Ltd. v. American Tel. & Tel. Co., 93 F.R.D.
______________________ ________________________
497, 502 (E.D. Pa. 1982) (dismissal of class action without
notice said to be without prejudice to class). More
important, where a cohesive class is certified under Rule
23(b)(2), notice may suffice if given to a suitable class
representative. See Walsh v. Great Atlantic & Pacific Tea
___ _____ _____________________________
Co., Inc., 726 F.2d 956, 962 (3d Cir. 1983). We think that
_________
Puerto Rico Legal Services, which was counsel for Navarro and
____________________
14. Fed. R. Civ. P. 23 (e) reads
A class action shall not be dismissed or
compromised without the approval of the
court, and notice of the proposed
dismissal or compromise shall be given to
all members of the class in such manner
as the court directs.
-34-
the class, may be considered a suitable representative for
notice purposes here, at least where, as found, there have
never been complaints from putative class members. Counsel
monitored and actively participated in the settlement, which
has resulted in significant benefits to the patient class.
Counsel obviously saw itself as representing the entire
patient class at the Hospital, and not just the named
plaintiff.
The lack of notice argument is particularly
inappropriate coming, as it does, not from injured class
members but from officials seeking to use the lack of notice
as a basis for resisting the granting of relief to the
plaintiff class. To uphold defendants for failure of notice
__________
to class members would be to wield the notice requirement as
a sword against those it was meant to help.
We hold, in sum, that this suit is properly a class
action brought in behalf of all persons who were patients
when suit was brought and all persons who may in the future
receive treatment or habilitation at the Psychiatric Hospital
in Rio Piedras.
II. APPLICATION OF THE STIPULATION TO GUERRERO
II. APPLICATION OF THE STIPULATION TO GUERRERO
The second issue is whether the district court
correctly determined that the terms of the stipulation can be
enforced in respect to former Hospital patients now residing
at the Guerrero Therapeutic Community, a separate institution
-35-
located in the city of Aguadilla, approximately 70 miles from
the Hospital. The court ruled that the stipulation entered
in 1977 applied to Guerrero in respect to the approximately
144 patients transferred there from Rio Piedras. The court
therefore concluded that it had "jurisdiction" over Guerrero,
and that the Master should consider how the stipulation
(although written chiefly in terms of the needs of Rio
Piedras) should be applied to the rehabilitation services
offered at Guerrero.
We hold that neither the terms of the stipulation
nor the subsequent actions of the parties make the
stipulation applicable at Guerrero.
-36-
A. Standard of Review
__________________
The present case was not resolved by judicial
rulings and findings but by a court-approved stipulation.15
Whether the remedial provisions of the stipulation, and the
district court's oversight, extend to Guerrero are,
therefore, matters of interpreting that stipulation. This,
in turn, raises the question whether, on appeal, this court
owes special deference to the district court's
interpretation, over and above the deference we would
normally give to a lower court's construction of a contract.
We think not, as the institutional coverage of the
stipulation goes to the very heart of the parties' original
bargain.
We recognize that this court has said that district
courts enforcing public law consent decrees have, in general,
broad discretion in determining such matters as whether the
objectives of the decree have been substantially achieved.
United States v. Commonwealth of Massachusetts, 890 F.2d 507,
_____________ _____________________________
509 (1st Cir. 1989). Unlike consent decrees entered into in
commercial litigation, which are to be construed throughout
like a contract, id., the interpretation of broad,
___
programmatic decrees entered into in public law litigation
____________________
15. The agreement in this case, which was entitled a
"stipulation" by the parties, approved by the court, and upon
which judgment was entered, was no different in legal effect
from a consent decree. Thus we refer without distinction to
precedent involving consent decrees.
-37-
will often warrant a more flexible approach. AMF, Inc. v.
_________
Jewett, 711 F.2d 1096, 1101 (1st Cir. 1983). Thus, "in
______
examining a decree issued in public law litigation . . . the
appellate court should recognize that broad 'judicial
discretion may well be crucial' for the district judge to
secure complex legal goals." Massachusetts Association of
_____________________________
Older Americans v. Commissioner of Public Welfare, 803 F.2d
_______________ _______________________________
35, 38 (1st Cir. 1986) (citations omitted).
In Langton v. Johnson, 928 F.2d 1206 (1st Cir.
_______ _______
1991), we elaborated the rationale behind these two different
standards for interpreting consent decrees:
This double standard derives from
the realities of human experience.
Different types of consent decrees are
ordinarily conceived and hatched in
markedly different ways. In a commercial
setting, a consent decree is treated like
a contract because the court assumes that
private parties understand the economic
realities and business consequences of
their agreements . . . .
In public law litigation, courts
typically play a proactive role a role
which can have nearly endless
permutations . . . . Frequently, the
trial court's adjudicative function
blends with its service as an instrument
for change. The relief requested often
involves the restructuring of a state or
city program, requiring the court to
fashion equitable remedies sometimes
unique and often complicated in order
to secure 'complex legal goals.' . . .
We agree with Professor Chayes that, in
the public law context, the consent
decree 'provides for a complex, ongoing
regime of performance rather than a
simple, one-shot, one-way transfer . . .
-38-
. It prolongs and deepens, rather than
terminates, the court's involvement with
the dispute.' Chayes, The Role of the
________________
Judge in Public Law Litigation, 89 Harv.
_______________________________
L. Rev. 1281, 1298 (1976) . . . .
ID at 1221.
The above might at first glance appear to require
deference to the judgment of the district court in this case
as to the scope of coverage of the present stipulation.
However, we see a critical distinction here based on the
nature of the question. The rule of broad discretion in
public interest cases is designed to give the district court
flexibility in deciding exactly how the numerous conditions
of a complex consent decree are to be implemented in
practice. In overseeing broad institutional reform
litigation, the district court becomes in many ways more like
a manager or policy planner than a judge. Over time, the
district court gains an intimate understanding of the
workings of an institution and learns what specific changes
are needed within that institution in order to achieve the
goals of the consent decree. In Commonwealth of
_________________
Massachusetts, for example, the district court needed
_____________
considerable leeway to decide whether the Commonwealth's
remedial plan for providing periodic evaluations of the
patients was sufficiently specific. 890 F.2d at 509. In
Older Americans the district court, in ruling on a contempt
________________
motion, needed discretion to decide whether a state's new
-39-
policy for deciding whether to terminate AFDC benefits would
suffer from the same deficiencies as the former termination
policy which had given rise to the litigation. 803 F.2d at
39. And the Langton district court, also ruling on a
_______
contempt motion, required discretion to decide whether a
treatment center had sufficiently implemented the
educational, vocational, recreational and therapeutic
programs required by a consent decree. 928 F.2d at 1211-
17.16
However, the issue now presented differs markedly
from the issues that were before the district courts in
Commonwealth of Massachusetts, Older Americans and Langton.
______________________________ _______________ _______
Here the issue is at what public institution or institutions
the Commonwealth of Puerto Rico, in agreement with
plaintiffs, consented to sponsor and finance sweeping
remedial measures under the aegis of the federal court. The
rationale for deferring to the decision of a district court,
that its involvement with the ongoing case makes it best able
to decide issues concerning institutional management and
compliance, should not control an issue, like this one, which
____________________
16. Jewett was a trademark infringement case which merely
______
discussed the standard for interpreting public law consent
decrees by way of contrast to the commercial law standard
applicable to the case.
-40-
involves determining the scope of the parties' original
bargain.17 If this were not so, the making of a consent
decree would, from the government's point of view, be a game
of Russian roulette, since there could be no predicting the
circumstances which might lead the judge, a decade or so
later, to enlarge the areas of his own control. Ordinary
contract principles, involving determination of the parties'
intent when they entered into the stipulation, are the
appropriate interpretative guideposts here.
Especially is this so given that the reach of the
stipulation brings along with it the oversight jurisdiction
of the federal courts. Principles of federalism weigh
against a rule of district court deference which could result
____________________
17. To be sure, a district judge's knowledge about the
working realities of Puerto Rico's mental health system may
be useful background in construing the stipulation and
determining its coverage. But deciding what the parties'
meant by their writing in 1977 necessitates a more
disciplined and traditional inquiry than does ascertaining
whether the current efforts of officials were sufficient to
meet broad programmatic goals. Wide deference to the
district court's judgment is appropriate to the latter
decision but not to the former. Parties to a consent decree
are entitled to know that their negotiated choices will be
respected that a consent decree will not be treated as a
mere entering wedge which, once entered, gives a district
court untrammeled discretion to increase the number of public
entities it supervises.
We do not suggest that a district court's special
___
knowledge concerning the parties' intentions when entering
into a consent decree might not, in a proper case, provide
material guidance about the decree's meaning. There is no
issue of that sort here, however. The present district judge
was not involved in the parties' negotiations in 1977 and
makes no representations of possessing special knowledge
about what transpired then.
-41-
in enlarging federal jurisdiction beyond the parties'
original understanding. One of the contracting parties here
was, in effect, the Commonwealth of Puerto Rico, which now
strenuously objects to the district court's interpretation.
Especially where there has been no trial finding of
unconstitutionality at any institution, the stipulation must
limn the proper boundaries of the federal writ and must be
scrupulously honored.18 The Supreme Court has emphasized
that "although the 'remedial powers of an equity court must
be adequate to the task, . . . they are not unlimited,'
Whitcomb v. Chavis, 403 U.S. 124, 161 (1971). One of the
________ ______
most important considerations governing the exercise of
equitable power is a proper respect for the integrity and
function of local government institutions." Missouri v.
________
Jenkins, 110 S. Ct. 1651, 1663 (1990). In enforcing a
_______
consent decree, a district court must remain "aware of
. . . the need to strike a proper balance between the
integrity of the Consent Decree and the principles of
federalism." Duran v. Elrod, 713 F.2d 292, 297 (7th Cir.),
_____ _____
cert. denied, 465 U.S. 1108 (1983). Here, our concern for
_____ ______
____________________
18. The stipulation was substituted for defendants' right to
an adjudication of unconstitutional conduct before being
compelled to remedy conditions at a particular institution.
If the Commonwealth defendants did not agree therein to
remedy conditions at Guerrero, to force Guerrero to operate
under federal court control now amounts to imposing unagreed
upon federal sanctions without any adjudication of liability
in respect to Guerrero.
-42-
principles of federalism is at its highest because we are
dealing not with the details of implementing a clearly
applicable consent decree, but with the question of whether
the consenting parties, including officials of the
Commonwealth of Puerto Rico, ever understood that the relief
set out would apply at another, unmentioned institution. The
issue is not, as in other cases, whether the defendants have
conceded to the court authority to implement a particular
policy in an institution already surrendered to the general
authority of the court. Rather, the issue concerns a much
greater threat to the Commonwealth's sovereignty, whether it
has voluntarily surrendered to the federal court its
authority over the institution at all.
We conclude that the question of the district
court's power over Guerrero is an issue to be decided under
ordinary contract rules. Appellate review of contract
interpretation is ordinarily plenary, Fashion House, Inc. v.
___________________
K. Mart Corp., 1892 F.2d 1076, 1083 (1st Cir. 1981). We,
______________
therefore, proceed carefully to scrutinize the stipulation
and the actions of the parties to determine whether the
stipulation applies at Guerrero.
B. What the Stipulation Originally Provided
________________________________________
The stipulation defines the term "institution" as
"[t]he Commonwealth of Puerto Rico Psychiatric Hospital as
presently constituted or in Decentralized form" and then goes
-43-
on to specify 86 conditions that must be met at the
"institution." The question is whether this definition of
the term "institution" includes Guerrero.
It is clear that neither in 1977 nor at any later
time was Guerrero the ". . . Hospital as presently
constituted." Can it be viewed as having become the
". . . Hospital . . . in Decentralized form?"
The plaintiffs suggest that when the definition of
"institution" was drafted in 1977, the parties had in mind
the "decentralizing" of Rio Piedras Hospital by transferring
some of its emergency and other outpatient services to other
facilities, placing some of its existing patients elsewhere,
and diverting others who might become new patients.
Plaintiffs go on to urge that such actions would cause the
Hospital in "decentralized form" to become, besides Rio
Piedras itself, any and all pre- and post-Hospital
facilities within Puerto Rico serving or receiving patients
who would formerly have been served by the Hospital or might
have stayed there. Thus, Guerrero, which particularly (but
by no means exclusively) came to serve a "post-Hospital" or
"transitional" function, thereby relieving demands on Rio
Piedras, is said to have become, functionally, a
"decentralized form" of Rio Piedras Psychiatric Hospital, and
-44-
hence subject to all the relief imposed by the stipulation
upon that institution.19
We have fundamental difficulty with this reasoning.
First, we do not think that a distant mental health facility,
distinct from the Hospital, and with no administrative
connection therewith, would normally be considered the
". . . Hospital . . . in Decentralized form." There is no
evidence of any special relationship between the Hospital and
Guerrero other than an arrangement, tendered initially by
defendants and now enforced by the court, that it would
provide 144 places to accommodate Hospital overflow. If the
____________________
19. The Master and district court never, in so many words,
stated that Guerrero was a decentralized form of the
Hospital. They did, however, emphasize the essential role of
pre- and post-Hospital "transitional" institutions in
relieving the Hospital's overload, and thereby enabling the
stipulated reforms to proceed at the Hospital. Guerrero was
noted as a facility which could, in particular, provide 144
beds for former Hospital patients. (There are figures
indicating that this number was slightly under half of the
Hospital's "transitional" patients at a given time, the rest
being sent elsewhere.) The court fought successfully to
force the defendants to honor their offer to provide 144
spaces at Guerrero to relieve overcrowding at the Hospital.
We do not question the district court's authority to identify
such spaces, and require the Commonwealth to accommodate the
Hospital's overflow, as part of its power to implement the
stipulation meaningfully. See Inmates of Suffolk County Jail
___ ______________________________
v. Eisenstadt, 494 F.2d 1196 (1st Cir. 1974) (in enforcing
__________
consent decree requiring only one pretrial detainee per jail
cell, district court could order some detainees transferred
to a separate institution). The question here is not the
court's power to force the Commonwealth to relocate excess
Hospital patients and, if need be, to identify receiving
institutions, but its power, having done so, to exercise
oversight over the care and conditions at such other
facilities.
-45-
mere receipt of patients from the Hospital, or otherwise
destined for the Hospital, is sufficient to transform an
institution into "[t]he Commonwealth of Puerto Rico
Psychiatric Hospital . . . in Decentralized form," then
every other public facility receiving one or more such
patients becomes theoretically subject to the 86 reform
standards set out in the stipulation, or, at least, to a
visit from the Master to determine how much of the
stipulation it is possible to apply there. Such a
construction would cause the tail to wag the dog. As we
discuss below, most of the stipulation was drafted rather
obviously for application at the Hospital. Any such
construction as we have mentioned would result in placing the
federal court in essentially standardless control of many of
the mental health institutions around Puerto Rico, simply
because of the presence there of one or more former Rio
Piedras patients.20
____________________
20. We have held that "it is fundamental that for a contract
to be enforceable it must be of sufficient explicitness so
that a court can perceive what are the respective obligations
of the parties." Soar v. National Football League Players
____ _________________________________
Ass'n, 550 F.2d 1287, 1289-90 (1st Cir. 1977). The reasoning
_____
behind this principle is that a contract is an agreement
between two parties, and a court should not require one of
them to do something unless it can be reasonably certain that
the party agreed to do it. See Corbin on Contracts 95 (3d
___
Ed. 1963). We think that this principle should guide our
interpretation of the agreement in this case. Were we to
hold that Guerrero, whose only connection to Rio Piedras is
that 144 patients have been transferred to Module 7, is a
"decentralized form" of Rio Piedras, we would be left with an
agreement the requirements of which would be extremely
-46-
A further reason to doubt this unnatural reading of
the stipulation is that it far exceeds the relief sought by
the plaintiffs in their complaint. The chief evidence of
what plaintiffs were seeking when they agreed to the
stipulation lies in the complaint, in which plaintiffs
outlined the relief sought in their lawsuit. The complaint
speaks of overcrowding, understaffing, poor living
conditions, and inadequate care and treatment of patients at
__
"the Commonwealth of Puerto Rico Psychiatric Hospital" (i.e.,
_____________________________________________________
what we also call the "Hospital" or "Rio Piedras"). In its
prayers, the complaint seeks declaratory and injunctive
relief at (specifically and repeatedly) the Psychiatric
________________
Hospital alone. Far from mentioning the treatment of
________
patients outside the Hospital, or the treatment of removed
____________________
difficult to determine. First, it would have to be
determined what other institutions, besides Guerrrero, were
also covered. Would all public institutions receiving former
Rio Piedras patients be subject to the stipulation? What
about private contract facilities and foster homes receiving
such former patients? What about facilities treating
patients who, formerly, would have gone to Rio Piedras? All
such places would fit within the concept of pre-and post
Hospital facilities. Second, what programs and spaces at
such institutions and facilities would be subject to the
stipulation? If, say, three former Rio Piedras patients were
at a facility housing 100 other patients, would the court's
jurisdiction extend to the entire place or just to programs
and spaces affecting the three transferees? If the latter,
how could such a separation be effected, practically? Third,
it would be unclear which parts of the stipulation applied to
those other facilities, programs and parts thereof. Some
provisions do not appear capable of application anywhere but
at Rio Piedras, and the court would be left to decide how to
modify the stipulations to apply them to other facilities.
-47-
Hospital patients at other places, it seeks an injunction
against further admission of patients to the Psychiatric
Hospital until conditions there are improved. There is no
reference whatever to decentralized facilities or
decentralization in the complaint. The complaint makes clear
that the sole object of the lawsuit is to improve conditions
at the Psychiatric Hospital. It seems reasonable, therefore,
to assume that this, too, was the object of the stipulation
entered into by way of settlement of that suit. If so, we
think the term ". . . Hospital . . . in Decentralized form"
deserves a less ambitious reading than is now urged. The
parties might simply have meant a reconstituted Hospital
composed of separate administratively linked components. Or
they may have thought that several quasi-independent
facilities would operate bearing the original name of the
Psychiatric Hospital. The fact is, no one knows. Lacking
any further explanation of what was meant, we do not believe
that this curious and totally unclear terminology can now
bear the burden of including facilities around Puerto Rico
whose only link with the Hospital is the receipt or diversion
of some of its former or would-be patients.
The substantive provisions of the stipulation
likewise offer little support for the proposition that it was
meant to apply beyond the Hospital proper. To the contrary,
the stipulation bears overwhelming evidence that the
-48-
standards therein were drafted to apply at the Hospital
understandably, since conditions at the Hospital were the
sole target of plaintiffs' complaint.
First, several of the stipulation's provisions
equate the "institution" the entity to which the
stipulation applies with Rio Piedras. In section "B-
III", describing habilitation plans, the stipulation states
that
The Mental Health Centers which refer
patients to the San Juan Psychiatric
______________________
Hospital shall make a preliminary
________
evaluation of the mental condition of
such patient. Each patient who is
referred to the institution must be
___________
preliminarily evaluated by the Emergency
Room Physician prior to admission to
determine whether he should be admitted.
In this passage the parties appear to have used "San Juan
Psychiatric Hospital" and "institution" interchangeably. If
the term "institution" were not synonymous with Rio Piedras,
then these two sentences would refer to two different
entities, which, in context, would not make sense.
Likewise, Section "B- IV" contains a detailed
description of the Rio Piedras facility, discussing the
number of wards there and the number of patients, showers and
toilets in each ward. It then goes on to state that "[u]ntil
such time as the physical facilities at the institution can
___________
be habilitated to provide in each ward multi-resident rooms
of no more than 10 patients, and one toilet, lavatory, and
-49-
shower for every 10 patients, the following physical
improvements shall be provided . . . ." (emphasis added). By
following the description of deficiencies at Rio Piedras with
a specific proposal for improving conditions at the
"institution," this paragraph, like that discussed above,
equates the term "institution" with the Rio Piedras Hospital
alone.
Not only does the stipulation equate the
"institution" with Rio Piedras in two places, several of its
substantive provisions underscore the intention to apply to
Rio Piedras. For example, as noted above, the stipulation
contains a detailed description of the existing physical
facilities at Rio Piedras immediately preceding the list of
physical standards to be observed prospectively. This
indicates that the physical standards (and, by implication,
the rest of the standards) were thought of as applying to Rio
Piedras. Even assuming the standards are general enough to
apply to any facility, the drafter would not likely have
preceded these general standards with a detailed description
of Rio Piedras if he had intended the standards to apply
anywhere but at Rio Piedras. Moreover, this physical
description of Rio Piedras cannot be viewed as some sort of
boilerplate language merely intended to introduce a set of
general physical standards. The stipulation is divided into
two overall parts, part "A," containing an introductory
-50-
description of conditions then existing at Rio Piedras, and
part "B," containing a list of standards to be observed in
the future. Thus, if the physical description of Rio Piedras
were merely boilerplate, one would expect it to appear
somewhere in part "A," not immediately preceding the
operative physical standards in part "B.".
Another part of Section "B- IV" makes specific
reference to two other facilities, Cayey and Bayamon,
mandating that 200 patients be moved from Rio Piedras to
those named facilities. Yet the stipulation does not state
that its standards are to apply to those facilities. If it
were the intent of the parties that Cayey and Bayamon be
regarded as part of a decentralized Rio Piedras, and hence
subject to the stipulation, surely a draftsman would have
made this point more clearly than by the single use of the
term "decentralized form" in the definitional section.
Indeed, this would have been the logical place in the
agreement to clarify the requirements applicable to an
institution such as Guerrero. The total lack of mention of
this concept in reference to Cayey and Bayamon seriously
undercuts the plaintiffs' current arguments on this score.
In addition to these particular provisions, the
entire structure of the stipulation indicates that it is
aimed specifically at the Rio Piedras Hospital. The
stipulation is divided by two headings: "A. FACT SITUATION"
______________
-51-
and "B. STANDARDS TO BE OBSERVED AT THE PSYCHIATRIC HOSPITAL
PSYCHIATRIC HOSPITAL
____________________________________________________
AND TIME SCHEDULE FOR COMPLIANCE" (boldface added). The
___________________________________
definition of "institution" and the entire list of standards
are contained under heading "B," whose title indicates that
the definition and standards are to apply only to the
"Psychiatric Hospital," i.e., Rio Piedras. As one of two
organizational headings, and the heading which preceded all
of the specific stipulations, heading "B" was a fairly
important piece of language. If the drafter had been
concentrating on producing a document designed to cover other
facilities, he would likely have used a term such as
"Standards to be Observed at all Covered Facilities," or
something to that effect. That the stipulations begin with
the term "Standards to be Observed at the Psychiatric
Hospital . . . " indicates that the drafter was concerned
with the existing Rio Piedras facility or, at least, some
later aggregate of facilities constituting a recognizable
successor to the current Hospital.
We conclude, therefore, that the stipulation, as
drafted, did not encompass Guerrero. While Guerrero and many
other institutions have taken overflow from the Hospital, they
have not, in any meaningful sense, become its operational
components. They are not now the "Commonwealth of Puerto Rico
Psychiatric Hospital . . . in Decentralized form." This is not
to question the right of the court to require the Commonwealth to
-52-
accept Hospital patients at other facilities, as part of the
necessary plan to bring the Hospital in conformity with the
stipulation. A district court has extensive equitable powers to
enforce stipulated goals. But neither the stipulation nor the
court's authority extends to the conditions at such places in the
absence of further agreement or another lawsuit establishing the
existence of unconstitutional conditions at these separate
institutions. State officials entering into a consent decree are
entitled to rely on courts to apply the decree only to its agreed
objects. Consent decrees are not like the camel's proverbial
nose in the tent, which, once inserted, gives the animal free
rein to come and go at will. The improvement of mental health
facilities will not be advanced by giving state officials reason
to avoid entering into such arrangements in the future for fear
they will be expanded beyond their language.
C. Construction of the Stipulation in Light of the Parties'
____________________________________________________________
Actions
_______
Having decided that the stipulated agreement as
drafted in 1977 did not, by its terms, apply to Guerrero, we next
consider whether it now applies to Guerrero because of the
actions taken by the parties to implement the agreement. An
argument that the actions of the parties make the stipulation
applicable to Guerrero may be constructed in a number of
different ways. First, in the view of the district court, the
defendants' actions gave rise to an equitable estoppel, so that
-53-
they were estopped to deny that the stipulations applied to
Guerrero. Second, the district court also held that "norms of
judicial responsibility" dictated the same result, which might be
thought of as an application of the doctrine of judicial
estoppel. See United States v. Levasseur, 846 F.2d 786, 792 (1st
___ _____________ _________
Cir. 1988). Third, our dissenting colleague argues that the
defendants' actions may be used as extrinsic evidence to indicate
that the defendants, in drafting the original agreement, intended
that it would apply to facilities such as Guerrero.21
All three of these arguments hinge upon the
proposition that the defendants, through their actions, have
represented that the stipulations would apply to Guerrero.
Equitable estoppel contains a representation element, see Phelps
___ ______
v. Federal Emergency Management Agency, 785 F.2d 13 (1st Cir.
_____________________________________
1986). Judicial estoppel requires inconsistency between a
position taken earlier before a court and a later one (the
____________________
21. We agree with the dissent that ordinary contract
principles should be used to interpret the terms of the
stipulation. We also agree that one such principle is that
evidence extrinsic to the decree may be used to determine the
meaning of the stipulation. We entirely disagree, however,
with the dissent's understanding and description of the
extrinsic evidence in this case. The only record evidence of
relevant events and documents existing at the time the
stipulation was drafted is the complaint, which strongly
suggests that the parties were concerned solely with
reforming Rio Piedras. See supra, pp. 43-44. And while our
brother evidently believes otherwise, we are at a loss to see
how defendants' actions since the drafting of the stipulation
indicate that they intended the stipulations to apply to
Guerrero. See infra, pp. 49-56. We believe that the record
simply fails to provide support for this interpretation.
-54-
earlier position here would be the defendants' purported
representation that the agreement applied to Guerrero). See
___
generally Levasseur, 846 F.2d at 792. The extrinsic evidence
_________ _________
argument supposes that the defendants revealed their actual
intent at the time they entered into the stipulation through
subsequent conduct in carrying it out. We reject all three
approaches because we do not construe the defendants' subsequent
actions as clearly representing that the stipulations applied at
Guerrero.
To be sure, the defendants have taken numerous
actions aimed at using the Guerrero facility, as well as others,
to help alleviate overcrowded conditions at Rio Piedras. They
have done so at the court's urging, and, as we have said, we
believe the court properly exerted pressure upon defendants to
provide facilities to reduce overcrowding at the Hospital. See
___
Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196 (1st
_______________________________ __________
Cir. 1974). The mere transfer of patients to Guerrero and
elsewhere, however, did not constitute a representation by
defendants that they agreed to operate Guerrero in conformity
with the 86 conditions set forth in the stipulation. Nor did
defendants' suggestions that the quality of care provided at
these places would be high amount to any such representation.
Plaintiffs contend that before the adoption of Plan
3, defendants did not object to, and supposedly by their silence
acquiesced in, certain statements by the Master relating to the
-55-
need for improvements at institutions other than Rio Piedras.22
Then, in 1987 the defendants submitted Plan 3, which called for
the transfer of some patients at Rio Piedras to Guerrero and
other facilities. These and similar actions undoubtedly
evidenced a willingness on the part of the defendants to use
Guerrero to help relieve pressures on Rio Piedras. But they fell
far short of representing agreement that the terms of the
stipulation applied henceforth at Guerrero.
It is true that after submitting Plan 3, the
defendants, on August 5, 1987, submitted "exceptions and
commentaries" to the Master's fourth report, parts of which may
be read as assuming the stipulations will apply beyond Rio
Piedras. The exceptions and commentaries state that
Said plan [Plan 3] includes a description
of the Mental Health Program of the
Commonwealth of Puerto Rico to illustrate
this Honorable Court and the Master as to
the scope of the program. The
Psychiatric Hospital of Rio Piedras is
only a part of said program and is the
institution under the stipulations before
this Honorable Court, with whatever
facilities may be used to descentralize
[sic] the care of said hospital's
patients. As before stated the
individuals that come in contact with the
primary units of the mental health
program are not patients of the
____________________
22. Typical of such statement was the Master's statement in
his report covering the period from August 1985 to April 1986
that "appreciable reform during fiscal 1986-87 cannot be
anticipated unless adequate funding is provided, not just for
the Hospital, but also for the entire network of mental
health services on which the effectiveness of the Hospital
. . . depends."
-56-
Psychiatric Hospital and most of the time
do not become so. The class in the
present action is composed of the
patients of the Psychiatric Hospital and
the institutions wherever they may be
referred to in a descentralization [sic]
program. Defendants respectfully
reiterate their request to maintain the
scope of the class in the above captioned
case and the stipulations agreed on by
admitting from Plan #3 those portions
that apply to the Psychiatric Hospital.
We find it difficult to discern any precise meaning
from this language. Even if the reference to "whatever
facilities may be used to descentralize [sic] the care of said
hospital's patients" may be viewed as acknowledging that Guerrero
is "under" the stipulations, that language is contradicted by the
apparent attempt to limit the court's authority to Rio Piedras by
asking it to "admit [ ] from Plan #3 those portions that apply
to the psychiatric hospital." Moreover, throughout the course of
this litigation, the defendants' "exceptions and commentaries"
have been treated as an objection to the court's "jurisdiction"
over Guerrero. The district court responded to the motion by
issuing an order referring to the defendants "objection" to the
scope of its "jurisdiction" and attempting to clarify that
jurisdiction. Moreover, the district court's December 28, 1989
order states that its August 10, 1987 order was necessary
"because defendants' . . . motion, taking exceptions to the
Master's fourth report, requested the court to restrict the scope
of the stipulations to the physical premises of the hospital and
to the patients residing there." We therefore decline to treat
-57-
this motion as a representation by the defendants that the
stipulation would apply to Guerrero.
Nor can the defendants' failure to appeal from the
court's August 10, 1987 opinion and order, issued in response to
the "exceptions and commentaries," be treated as such a
representation. The court stated in that opinion and order that
it intended to see that patients transferred to Guerrero received
treatment consistent with the stipulation. Defendants' failure
to appeal from this order did not, however evidence acquiescence
that the stipulation applied at Guerrero.23 The August 10
____________________
23. Although neither party raises the issue, we have also
considered whether the August 10, 1987 order could be
considered res judicata. We held in Morgan v. Nucci, 831
______ _____
F.2d 313 (1st Cir. 1987), that reconsideration of a district
court's injunction in an ongoing institutional reform case
can be barred on appeal by the doctrines of issue preclusion
or "law of the case." However, that case involved an appeal
from a district court's order reinstating an earlier order
which had itself been affirmed on appeal to this court.
Where no appeal is taken and decided, the unappealed order is
ordinarily nonpreclusive.
We think such a result follows from the need, in a
complex, ongoing case of this nature, that the district court
retain flexibility to modify its orders to deal with changing
circumstances. Thus, where a higher court has not considered
and upheld an interlocutory order, a district court should
generally be free to reconsider that order. As one authority
has noted, "[t]he fact that appeal might have been taken from
various intermediate orders under an interlocutory appeal
statute or an expanded version of the final judgment rule
should not preclude reconsideration by the trial court or
review on appeal from a traditional final judgment." 18 C.
Wright, A. Miller and E. Cooper Federal Practice and
______________________
Procedure 4433 (1981). In this case, the district court
_________
did in fact reconsider its August 10 order on the merits in
both the December 28, 1989 opinion and order and the March 6,
1990 opinion and order, although it ended up concluding that
the first order was correct. To hold that the August 10
order was res judicata would mean that the district court had
-58-
order did not require the defendants to do anything other than
__
what they had been doing all along use Guerrero to house
patients transferred from Rio Piedras. The order required
defendants to set aside 144 beds in Guerrero for former Rio
Piedras patients, submit certain budgetary information and take
several specific actions at Rio Piedras. Compliance with these
directives said nothing about defendants' willingness to conform
the internal management of Guerrero with the stipulation. It was
not until December 28, 1989 that the court issued an order
requiring defendants to take a particular action with regard to
their internal management of Guerrero in supposed compliance with
the terms of the stipulation. When the court issued this order,
defendants promptly objected, resulting in the present appeal.
Finally, like their previous actions, the defendants'
participation in the "tripartite visits" and the
"interdisciplinary visits" to Guerrero and their submission of a
report on the status of patients transferred to Guerrero cannot
be construed as tantamount to a representation that the
stipulation applied to Guerrero. In the words of the Master, the
"tripartite visits" were undertaken for the limited purpose of
"evaluat[ing] if transferred patients were better off than if
they had remained in the hospital." An agreement to determine
____________________
erred in reconsidering its earlier order on the merits. This
result would deny to the district court the flexibility it
thought necessary at least consider the modification of its
earlier interlocutory orders. Thus, the August 10 order was
not res judicata.
-59-
whether the patients were better off in Guerrero does not
evidence an agreement that their treatment was regulated by the
86 stipulations. Indeed, when the "interdisciplinary group"
reported that patients transferred from Rio Piedras to Guerrero
were receiving inadequate rehabilitative care, the defendants, in
a letter of September 6, 1989, raised their objections to the
decree's application to Guerrero. This letter began the series
of motions and court orders which culminated in the court's
opinion and order of March 6, 1990, now on appeal.
We do not find, therefore, that defendants ever
acknowledged that the remedial requirements of the stipulation
were applicable at Guerrero. Instead, defendants' actions seem
simply to have reflected the view that they were obligated to
improve Rio Piedras by reducing overcrowding there, and should do
so in a generally cooperative and progressive manner.24 The
Master noted in 1987 that the current administration (which took
office in 1985) had considerably increased the Puerto Rican
mental health budget and that, for the first time, a genuine
mental health system was taking shape in Puerto Rico. The
____________________
24. In institutional litigation, assertions by the court and
its agents, as well as the parties, must often be understood
as part of an extended negotiating process: statements are
not always made for their literal truth but to encourage or
cajole. By the same token, silence in the face of what may
appear to be overclaiming by the court may seem to be prudent
policy where matters generally are proceeding satisfactorily.
Defendants should not have to fear that their willingness to
cooperate to a degree greater than required by a consent
decree will later be taken as proof that they agreed to more
than the decree provides on its face.
-60-
district court's order of March 6, 1990 (affirming its December
28, 1989 order) went far beyond any previous order. For the
first time, the district court, instead of ordering the
defendants to move patients from Rio Piedras to Guerrero or to
determine whether such patients were better off at Guerrero, has
ordered defendants to operate Guerrero's rehabilitation program
under its supervision. The court, moreover, made clear that it
was asserting full jurisdiction over conditions at Guerrero. To
hold that the defendants are now bound to run the Guerrero
facility under court supervision merely because they earlier made
improvements there and accepted patients from Rio Piedras would
be to punish them for their cooperation.25
Thus, while we believe that the district judge and
the court-appointed Master have done an outstanding job
performing the role of policy planners and managers to see that
____________________
25. With respect to the equitable estoppel argument, the
plaintiffs have not demonstrated that they relied upon any
purported representations to their detriment. There is no
showing that the patients at Guerrero would have been better
off had they remained at the Rio Piedras facility in its
overcrowded state. There is, indeed, no showing that the
plaintiffs "agreed" to remove to Guerrero in reliance on some
misrepresentation that their treatment there would be
governed by the stipulation. In fact, as there is no
indication they had any choice about moving, any
"misrepresentation" could not "change [their] position for
the worse," Heckler v. Community Health Services of Crawford
_______ _____________________________________
County, 467 U.S. 51, 59 (1984) (footnote omitted). Absent a
______
second constitutional suit at Guerrero, this court cannot
second guess the means chosen to improve the Rio Piedras
facility by asking whether, if the defendants had adopted
some other plan for alleviating overcrowding at Rio Piedras,
patients who were transferred to Guerrero would have been
better off than they are now.
-61-
the complex legal goals inherently part of this litigation come
about, a direct intervention to regulate the operation of the
Guerrero facility was neither included in the terms of the
stipulation nor made appropriate by the subsequent endorsement
of the parties. As such intervention is not authorized, it must
terminate.
In so holding, we do not deny that the district court
has broad remedial powers to effectuate the provisions of the
stipulation. See generally Morgan v. McDonough, 548 F.2d 28, 31
_____________ ______ _________
(1st Cir. 1977) (district court's "equity power is broad and
flexible and the propriety of an order turns on a balancing of
individual and collective interests in the particular case").
For example, if former members of the plaintiff class now
resident at Guerrero still lack the individual habilitation plans
required by Section B-III(8)(c) of the stipulation because such
plans were denied them when they were patients at the Hospital,
the court even now could act to correct and remedy that earlier
violation of the stipulation by ordering that the omitted plans
be provided. In so doing, the court could not oversee current
care and treatment at Guerrero, but would be entitled to order
the patient to be given the individual evaluation and diagnosis
that he or she should have been given while still at the
Hospital. And, as previously noted, the court may direct that
outside facilities be used temporarily or permanently to house
patients and/or to offer services not provided by the Hospital
-62-
if this is the only way to ensure compliance at the Hospital
itself with the stipulation. However, the district court may
not, as a general matter, regulate the rehabilitation programs
offered at Guerrero, or require that institution to comply
generally with the stipulated agreement. An ongoing oversight of
the rehabilitation services or other treatment received by former
Rio Piedras patients at Guerrero is outside both the terms of the
stipulation and any general remedial power that can be implied
therefrom. To the extent inmates of institutions other than the
Hospital (whether or not formerly patients at Rio Piedras)
believe that they are now being forced to endure unconstitutional
conditions, they must bring another lawsuit making such
allegations and seeking relief appropriate in their situation.
CONCLUSION
CONCLUSION
To summarize, we find, first, that this suit is
properly a class action. Second, we hold that the district court
may not impose the terms of the stipulation on, or regulate, the
Guerrero facility.26
The opinion and order of March 6, 1990 is affirmed in
_____________________________________________________
part and reversed in part. Orders of the district court
_________________________________________________________________
inconsistent with this opinion are vacated, and the case shall
_________________________________________________________________
____________________
26. The plaintiffs move for sanctions under Fed. R. App. P.
38. As we reverse the district court's decision concerning
the applicability of the consent decree and find the
defendants to have raised a legitimate argument concerning
class certification and notice, we do not consider the appeal
to have been "frivolous." The motion is therefore denied.
-63-
proceed in the district court in a manner consistent with this
_________________________________________________________________
opinion.
_______
Concurrence and dissent to follow.
-64-
CYR, Circuit Judge (concurring, in part; dissenting,
CYR, Circuit Judge
_____________
in part). I concur in Part I of the opinion, but respectfully
dissent from the conclusion reached in Part II. The majority
opinion concludes that the consent decree definition of "institu-
tion" is too vague or ambiguous to permit the interpretation
given it by the district court. The majority seems most
concerned that appropriate respect for the integrity of
Commonwealth governmental institutions and the principles of
federalism would be disserved by the district court's
interpretation of its jurisdiction under the consent decree.
Although federalism concerns and the integrity of Commonwealth
governmental institutions merit earnest consideration, the threat
perceived by the majority is exaggerated.
The district court, plainly mindful of the attendant
implications,27 fairly interpreted the negotiated consent
decree, employing entirely appropriate interpretive standards,
and reasonably concluded that the language of the decree and the
long-term course of performance by the parties evince an
intention on the part of the Commonwealth to undertake a broad-
based legal obligation from which it never dissented until the
district court proceedings were about to be closed. The language
of the consent decree, and the well-informed findings of the
____________________
27. The district court devoted twelve pages of its forty-
nine page opinion to a reasoned discussion of the
Commonwealth's federalism claims.
-60-
60
district court regarding the parties' post-decree course of
compliance with the decree, demonstrate that the Commonwealth
intended, at the time the decree was approved in 1977, to submit
________ __ ____
to the jurisdiction of the United States District Court all
collateral mental health facilities involved in the contemplated
decentralization of mental health services previously provided at
Rio Piedras. The majority's analysis, on the other hand, seems
rooted in its concern that the district court may have loosed
itself from the jurisdictional constraints imposed by the
language of the consent decree, armed with its own charter to
regulate all public mental health facilities and patients in the
Commonwealth. While there can be no doubt that such an
arrogation of power would warrant firm remediation, neither the
district court nor the plaintiffs have interpreted the consent
decree to confer any such unlimited or ambiguous jurisdictional
license as the majority suggests.
The majority proceeds on the doubtful assumption that
the decentralization provision operated ab initio as an
__ ______
unmitigated burden on the Commonwealth.28 On the contrary, the
______
____________________
28. The majority concludes that the district court had the
authority to compel the Commonwealth to transfer patients
from Rio Piedras, but had no jurisdiction to require that the
quality of the treatment provided to transferred patients at
the collateral facilities would conform to the stipulations
in the consent decree. Thus, ironically, the majority would
give the district court more authority over the Commonwealth
____
than it would have under plaintiffs' interpretation, which
would leave the Commonwealth with the unfettered right to
determine for itself whether to achieve compliance through
on-premises improvements or patient transfers, or, as the
-61-
61
Commonwealth gained the benefits of flexibility, affording it the
option either to upgrade facilities at Rio Piedras to accommodate
its initial patient population, or to convert Rio Piedras to a
downscaled facility through periodic patient transfers to
alternate sites of its own choosing. Under the majority's view,
___ ___ ________
the Commonwealth would have been faced with a new lawsuit, with
all its attendant litigational burdens, as to each different
collateral facility to which a member of the plaintiff class was
transferred. The consent decree, on the other hand, contemplated
from its inception that certain as-yet unidentifiable patient
____ ___ _________ ______________
services then being provided at the overcrowded Rio Piedras
facility might no longer be offered at those premises by the time
the litigation was brought to a conclusion. At the present time,
Rio Piedras apparently is in compliance with the stipulations in
the consent decree. Compliance was achieved, however, as
__
understood and agreed by all concerned, only through the transfer
__________ ___ ______ __ ___ _________
of numerous former Rio Piedras patients to various collateral
support facilities, such as the 144-bed module at Guerrero the
facility at issue on appeal. Furthermore, no other Puerto Rico
mental health facility will be brought under the jurisdiction of
the court in the future. Rio Piedras and its support facilities
___ ___ _______ __________
now constitute the fixed-size, decentralized form of the
Hospital, and the plaintiff class includes only present and
future residents of the "institution" as it is presently
_________
____________________
defendants in fact elected to do, by a combination of means.
-62-
62
composed. As the district court itself noted, "persons treated
________
in their community mental health centers who have never been
patientsof theHospital, donot fallunder thecourt's jurisdiction."
Under the explicit language of the consent decree,
the plaintiff class is comprised of present and future
"residents" of the "institution." The jurisdiction of the
district court consequently extended to Rio Piedras and all
collateral facilities utilized to depopulate and decentralize Rio
Piedras in order to bring it into compliance with the minimum
physical standards prescribed by the consent decree. The
restrictive interpretation advanced by the majority is dependent
entirely on the unrealistic assumption that a significant subset
of the plaintiff class, namely all patients transferred from Rio
____
Piedras, accepted a consent decree requiring improvements at Rio
Piedras but imposing no obligation on the Commonwealth regarding
__ __________
the quality of care available at the collateral facilities to
which those same patients were to be transferred. Viewed in its
litigation context, I believe that the consent decree requires
the interpretation given it by the district court and that the
interpretation adopted by the majority is unwarranted by either
the language of the decree, the extended course of compliance and
superintendence under the decree, or the nature and aims of the
class action.
I. Plain Language of Consent Decree
I. Plain Language of Consent Decree
________________________________
-63-
63
Although federalism concerns offer an arguable basis
for de novo appellate review of the jurisdictional reach of a
__ ____
consent decree governing public institutional reform
litigation,29 the majority's plenary scanning of the plain
language of the consent decree substitutes appellate
interpretation of the stipulations of the parties for the
interpretation of the superintending court, unconstrained even by
the "ordinary contract principles" alluded to by the majority.
The proper interpretation of a consent decree
basically presents a question of law, as does the preliminary
determination whether the disputed language is ambiguous. See
___
AMF, Inc. v. Jewett, 711 F.2d 1096, 1100-01 (1st Cir. 1983);
__________ ______
Massachusetts Ass'n for Retarded Citizens, Inc. v. King, 668 F.2d
_______________________________________________ ____
602, 607 (1st Cir. 1981) (citing United States v. ITT Continental
_____________ _______________
Baking Co., 420 U.S. 223, 238 (1975)); see also Fashion House,
___________ ___ ____ ______________
Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989). The
____ ____________
majority suggests that the terms "institution" and "Rio Piedras
Hospital" were used interchangeably and synonymously throughout
the decree, and that perhaps the definition of "institution"
____________________
29. The majority posits the theory that federalism concerns
are heightened when a federal court purports to interpret a
provision defining the number of institutions with respect to
which a State accedes to the exercise of federal court
jurisdiction, but not when the federal court defines the
"details" of the implementation of a particular policy set
out in a decree. The reality is, however, that a federal
court's definition of the physical reach of its jurisdiction
________
may pose less unforeseen burdens on the State than may result
from the broad brush policy implementation permitted by the
majority.
-64-
64
as consisting of the "Commonwealth of Puerto Rico Psychiatric
Hospital as presently constituted or in Decentralized form"
was included merely to ensure that an internally-restructured
facility at Rio Piedras, or any other mental health facilities
subsequently placed under the direct administrative control of
______ ______________ _______
the Rio Piedras Hospital, would be covered by the terms of the
decree.
The massive overcrowding at the Rio Piedras facility
in 1977 manifested to all the parties that the system of care
______ __ ____
provided at Rio Piedras in 1977 might well be "decentralized"
over time. Yet the parties could not then know, with any
precision, which or how many collateral mental health facilities
would be needed to accommodate the patients who would have to be
transferred from Rio Piedras.30 Plaintiffs contend that the
definition of "institution" incorporated in the decree was
deliberately phrased in broad terms because the parties needed to
make express allowance for future contingencies as to what form
the systemic "institution" ultimately would take. Such inherent
flexibility is one of the major advantages of utilizing consent
____________________
30. The majority asserts that plaintiffs' proposed
interpretation of "decentralized form" is far broader than
the definition of the remedy demanded in the complaint. This
assertion overlooks the dynamic of the negotiation process
that typically follows the commencement of public
institutional reform litigation. Moreover, at the outset the
plaintiffs were seeking to correct conditions at the
__________
hospital, but could not be expected to outline in their
complaint the particular means the Commonwealth would elect
_________ _____
or be required to utilize to bring about the necessary
improvements.
-65-
65
decrees in public institutional reform litigation. Thus, even
assuming that we are to confine ourselves to a "four corners"
interpretation of the decree, as advocated by the majority, I
cannot agree that the majority has demonstrated that its
interpretations of "institution" and "decentralized form" are
permissible in light of the explicit language of the consent
decree.
First, the majority converts the pivotal definition
of "institution" into virtual surplusage by suggesting two
implausible reasons for its inclusion in the consent decree.
Because the particular array of services provided at the Rio
Piedras facility was almost certain to change during the course
of the Commonwealth's compliance, the majority posits the theory
that the parties included the definition of "institution" only to
ensure that the stipulations in the decree would continue to
apply to this internally-restructured facility. We should be
_______________________
very reluctant to conclude that prominent language in a decree,
which has received the imprimatur of the parties and the
superintending court, is superfluous and without legal import.
See, e.g., Systemized of New England, Inc. v. SCM, Inc., 732 F.2d
___ ____ _______________________________ _________
1030, 1034 (1st Cir. 1984); J.E. Faltin Motor Transp., Inc. v.
________________________________
Eazor Express, Inc., 273 F.2d 444, 445 (3d Cir. 1960). The
____________________
majority fails to explain why, if the Rio Piedras facility were
to remain an intact entity at its original location, the simple
phrase "Rio Piedras Hospital" would not have sufficed to ensure
-66-
66
the application of the stipulations to the restructured facility.
Under the majority's interpretation, any further elaboration of
the term "institution" would have been superfluous.
The majority next suggests that the parties may have
included the definition of "institution" to encompass any new
branches of the Rio Piedras facility opened by the Commonwealth
________
at other locations throughout Puerto Rico and placed under the
same administrative control as Rio Piedras. See supra at n.4.
___ _____
The suggested interpretation is totally at odds with the under-
lying goal of the litigation and the consent decree, which was to
fix the obligations of the Commonwealth to all members of the
plaintiff class. We cannot plausibly suppose that the parties
would have had any reason to insert in the decree a prominent
provision whose only purpose would be to govern the
Commonwealth's unilateral decision to "reshuffle" the
organization within its Department of Health. After all, the
Commonwealth ultimately controls all public mental health
___
facilities in Puerto Rico, regardless of the number of discrete
administrative units into which it might choose to parcel its
mental health program. Given that reality, the majority fails to
explain how such administrative reshuffling would even be
material to the resolution of the problems to be addressed by the
present litigation. By emphasizing the bureaucratic form of the
____
Hospital, rather than the substantive goals of the litigation and
the consent decree as a whole, the majority interpretation
-67-
67
renders the Commonwealth's obligation totally illusory. See,
___
e.g., Shakey's Inc. v. Covalt, 704 F.2d 426, 434 (9th Cir. 1983)
____ ______________ ______
(preference given to contract interpretation that does not render
obligations illusory). According to the majority view, the
Commonwealth would be free at any time to redefine its
obligations under the consent decree, artificially, by placing
____________
various facilities under the nominal control of an administrative
_______
unit of the Department of Health separate from the Rio Piedras
facility. Furthermore, under the majority's thesis, the
Commonwealth would have been permitted to effect a unilateral
shutdown of the entire Rio Piedras facility, transferring all its
patients to other facilities, without any further obligation to
former Rio Piedras patients. I believe it inappropriate to
trivialize a judicial decree in this manner, particularly a
consent decree.
Second, the majority emphasizes that the decree
specifically describes physical conditions at the Rio Piedras
facility, while omitting any description of the physical
conditions at other facilities mentioned in the decree, such as
the mental health programs at Cayey and Bayamon. The majority
proposes to interpret the absence of such descriptions as an
indication that the stipulations in the consent decree were not
meant to apply to any facility other than Rio Piedras.
The significance of the asserted "omission" must be
viewed in conjunction with the broad definition of "institution"
-68-
68
set out earlier in the consent decree. It is a common drafting
technique (expressio unius est exclusio alterius) to omit
_________ _____ ___ ________ ________
specific examples (Cayey and Bayamon) where their inclusion might
imply that the specific examples completely exhaust the scope of
_______
a broader category previously defined. See generally 2A Norman
___ _________
J. Singer, Sutherland Statutory Construction 47.23, 47.24 n.6,
_________________________________
at 194, 203, 205 (4th ed. 1984) (discussion of exclusio doctrine
________
in interpreting statutes and contracts). The inclusion of a
specific description of the physical conditions at Cayey and
Bayamon might well have been considered a reasonable basis for
inferring that Cayey and Bayamon comprised the entire fixed
"decentralized form" of the Hospital, and that no other
collateral facilities, such as Guerrero, could have been
considered part of the "institution" in the future. Thus, the
"omission" relied on as support for the narrower interpretation
advanced by the majority provides persuasive support for the
interpretation given by the district court.
Furthermore, as previously noted, the particular
physical conditions at Cayey and Bayamon were not the primary or
___
immediate focus of the consent decree. The decree requires that
the Rio Piedras facility be brought into compliance with the
stipulations in the decree. At such time as the Commonwealth
were to achieve compliance at the Rio Piedras facility, the court
would be required to determine that the collateral support
facilities to which Rio Piedras patients had been transferred in
-69-
69
order to achieve compliance at Rio Piedras were also in
compliance with the minimum standards stipulated in the consent
decree. Conceivably, the Cayey and Bayamon facilities might not
have remained as permanent parts of the "institution" if, between
1977 and 1989, the Commonwealth decided that the patients
initially transferred to those facilities would be better placed
in some other collateral facility. Thus, the decree envisioned
that the ultimate scope of the "institution" would remain open to
final definition through reference to its culminating
eventuality, the achievement of full compliance with the consent
decree by the Rio Piedras facility.
Third, the majority suggests that the provisions of
the decree relating to the internal procedures for screening the
medical requirements of incoming and transferring patients
demonstrate that the terms "institution" and "Hospital" are used
interchangeably by the parties. The interpretation of a pivotal
provision in a consent decree should not be approached under the
assumption that it is the product of poor draftsmanship or an
indiscriminate use of terms. Instead, at least when the
resulting interpretation fully accords with the language and
context of the consent decree, it is appropriate to credit the
parties with a mutual intention to use different terms to import
distinctive meanings. Read in context, the language cited by the
majority does not equate the terms "Hospital" and "institution."
Rather, it is clear that the screening provision prescribes
-70-
70
distinct requirements for intra-institutional patient transfers,
_____
namely transfers of patients between Rio Piedras and its
collateral component facilities, and inter-institutional patient
_____
transfers, namely transfers of patients from outside the
"institution" intoRio Piedrasor oneof itscollateral facilities.31
____________________
31. The first sentence provides that "Mental Health Centers
which refer patients to the San Juan Psychiatric Hospital
shall make a preliminary evaluation of the mental condition
of such patient." This provision ensures that non-acute
patients will no longer be transferred to the Rio Piedras
facility from other collateral facilities of the
"institution" unless they need the type of intensive care
provided at Rio Piedras.
The second sentence, broader in scope, provides that
"[e]ach patient who is referred to the institution must be
preliminarily evaluated by the Emergency Room Physician prior
to admission to determine whether he should be admitted."
Under this provision, if a patient is transferred into the
"institution," as defined in the decree, from any facility
outside the institution, the patient must be evaluated at Rio
_______ ___ ___________
Piedras to ensure that he is placed in the appropriate
component facility (pre-hospital facility, hospital facility,
post-hospital facility), or that he is denied admission if he
will not benefit from any of these treatment programs.
The third sentence provides that "[i]f admitted, within
two weeks days [sic] of his or her admission to the
institution each patient is to be evaluated by the physician
assigned to the ward where the patient has been placed."
This provision merely requires that the institution place
admitted patients in appropriate "wards" within a particular
component facility. It is designed to prevent repetition of
the problems previously encountered at Rio Piedras where
patients often were grouped together "according to their
geographical origin, regardless of their mental condition and
needs." The term "ward," which is not defined in the decree,
certainly is not so precise or exclusive that it could only
refer to sections or divisions at the Rio Piedras facility.
Presumably, other collateral facilities of the "institution"
might segregate patients into different sections according to
their medical needs. For example, the Guerrero facility
apparently is divided into modules containing fixed numbers
of patients and beds, since a 144-bed module has been set
aside to receive patients transferred from Rio Piedras.
-71-
71
Finally, the majority notes that Section B, which
contains both the definition of "institution" and the list of
____ ___
stipulations, is prefaced by the heading "Standards to be
Observed at the Psychiatric Hospital." By equating the heading's
___________ ________
reference to "Psychiatric Hospital" with "Rio Piedras," the
majority suggests that the parties would have used the term
"institution" or "covered facilities" in the heading if they had
intended to apply the stipulations to facilities other than Rio
Piedras, which constituted the entire psychiatric hospital at the
time of the decree.
Contrary to the majority's contention, heading "B"
refers generically to the "Psychiatric Hospital," and not to the
"San Juan Psychiatric Hospital," the term reserved elsewhere in
the decree to denote the Rio Piedras facility. If indicative at
all, heading "B" merely suggests that the parties contemplated,
at the time of the decree, a basic hospital structure different
than the one then existing at Rio Piedras. Moreover, a cardinal
rule of contract interpretation requires that no individual
provision, even a heading, be interpreted in isolation from its
context within the document as a whole. See Spartan Industries
___ __________________
v. John Pilling Shoe, 385 F.2d 495, 499 (1st Cir. 1967); cf.
__________________ ___
United States v. Roemer, 514 F.2d 1377, 1380 (2d Cir. 1975) (rule
_____________ ______
of statutory construction gives precedence to detailed text over
generalized headings). The definition of "institution" is the
first substantive provision following heading "B," a prominence
-72-
72
further emphasized by the fact that the lengthy list of
definitions of which it is part is not arranged alphabetically.
It seems almost certain that the only reasonable justification
for placing the definition of "institution" in section B was to
define the coverage and reach of the stipulations contained in
_________ __
the very same section. This definition makes clear that the form
___ ____ ____ _______
of the hospital at the time of the consent decree (i.e., Rio
____
Piedras) might not be determinative of the scope of the
stipulations should the Hospital ultimately decentralize its
services.
The district court interpretation ascribes meaningful
import to the disputed language, consistent with the overall
purposes of the other provisions of the consent decree. The
majority has not demonstrated that the decree is ambiguous, so as
to warrant an alternative interpretation of the terms
"institution" and "decentralized form."
II. Ambiguity and Extrinsic Evidence of Intent
II. Ambiguity and Extrinsic Evidence of Intent
__________________________________________
Assuming, arguendo, that the disputed terms of the
________
decree are ambiguous, however, I cannot agree that the district
court interpretation is not due considerable deference. The
majority asserts that our normal deferential stance toward
district court interpretations in public institutional reform
litigation is inappropriate when the disputed language in the
consent decree involves the important question of jurisdiction,
-73-
73
rather than mere modes of compliance with the terms of the
decree. If an ambiguous decree must be interpreted as any other
contract, however, the majority does not explain why the district
court cannot be permitted to employ "ordinary contract
principles" which look beyond the confines of the "four corners"
of the contract or decree to determine the true intent underlying
the parties' use of the disputed language. Our customary
"deference" to the trial court in every other case of contract
interpretation is based on the recognition that the trial court
is better situated to appraise the probative value of this type
of extrinsic evidence. I believe that the majority opinion not
only unnecessarily restricts the interpretive inquiry to the
"four corners" of the consent decree, but discards appropriate
interpretive tools for discovering the intent of the parties as
expressed in their consent decree and undervalues the district
court's superior opportunity to evaluate the pertinent extrinsic
evidence developed during the course of its superintendence of
public institutional reform litigation.32
____________________
32. We consistently have held that its more direct exposure
to public institutional reform litigation entitles the
district court to considerable deference, even in cases where
the particular district court judge whose ruling is before us
on appeal is not the judge who approved the original consent
decree:
Appellants argue that deference is not warranted
here because the . . . decrees were entered by one
judge, and three other judges have presided over
this case. Furthermore appellants argue, the trial
judge was "entirely uninvolved" in the case until
the eve of trial. This argument is without
-74-
74
I cannot agree that the district court improperly
relied on the parties' post-decree conduct either to "revise"
retrospectively the terms of the decree or to deprive the
Commonwealth of its original bargain. Concededly, although the
court was at all times acutely mindful of the parties'
understanding of the scope of the decree, its opinion does not
contain a detailed analysis of the language of the decree.33
____________________
substance. It is the district court as an
__ __ ___ ________ _____ __ __
institution that merits deference. We are unwill-
___________ ____ ______ _________
ing to develop a litmus test for use in analyzing
the depth of a trial judge's familiarity with a
___ _____ __ _ _____ _______ ___________ ____ _
case in order to determine the resulting deference
____
to which he or she is entitled.
Pearson v. Fair, 935 F.2d 401, 409 (1st Cir. 1991) (emphasis
_______ ____
added); see also Langton v. Johnston, 928 F.2d 1206, 1222
___ ____ _______ ________
(1st Cir. 1991) ("The district court, albeit in the person of
a series of [five] different judges, has been the central
figure in monitoring the extent and adequacy of services
provided at the Treatment Center over the better part of the
last two decades.").
33. The district court opinion did note, however:
Plaintiffs claim that the term "in decentralized
form" demonstrates that the parties understood,
when they negotiated the stipulated agreement, that
the Hospital might in the future be decentralized
by relocating its pre and post hospital services,
that this process was in fact begun and is
continuing under Plan 3, and that the parties
intended from the beginning that Hospital patients
decentralized or deinstitutionalized would continue
to be members of the Class covered by the
stipulations. The Court considers plaintiffs'
___ _____ _________ ___________
interpretation of the parties' intent to have
______________ __ ___ ________ ______ __ ____
considerable merit, but finds no need to rely on it
____________ _____
in view of the analysis which is fully developed in
this opinion of the acceptance by the parties since
1985, until October 1989, that the Hospital's full
compliance depended on a systemic approach,
covering not only the services it rendered
-75-
75
Instead, the district court chose not to base its decision on the
ground that the phrase "decentralized form" was unambiguous as a
matter of law. Assuming some latent ambiguity, the court opted
to examine extrinsic evidence to determine the intent underlying
the jurisdictional provisions in the consent decree.
In earlier cases treating the proper interpretation
of an ambiguous consent decree, the Supreme Court implicitly
confined the proper focus to the "four corners" of the decree,
abjuring recourse to extrinsic evidence. See United States v.
___ ______________
Armour & Co., 402 U.S. 673, 681-82 (1971). In later caselaw,
_____________
however, the Supreme Court disparaged such a narrow reading of
Armour:
______
Since a consent decree or order is to be
construed for enforcement purposes
basically as a contract, reliance upon
certain aids to construction is proper,
as with any other contract. Such aids
__ ____ ___ _____ ________
include the circumstances surrounding the
formation of the consent order, any
technical meaning words used may have had
to the parties, and any other documents
expressly incorporated in the decree.
Such reliance does not in any way depart
from the "four corners" rule of Armour.
______
United States v. ITT Continental Baking Co., 420 U.S. 223, 238
______________ ___________________________
(1975) (emphasis added). As noted, this type of "extrinsic
evidence" analysis does not seek to modify the terms of the
______
original consent decree without the parties' consent. Rather, as
____________________
directly, but as well its support system of pre and
post hospital services.
(Emphasis added.)
-76-
76
with all other methods of contract interpretation, the court may
use extrinsic evidence to discover the original intent of the
________
parties in settling upon the particular language used in the
consent decree. See, e.g., Raymond Keith Foster, Keith Foster
___ ____ ____________________________________
Mfg. Co. v. Hallco Mfg. Co., No. 90-1299, 1991 U.S. App. LEXIS
________ _______________
22446, at *37 (Fed. Cir. Sept. 27, 1991); United States v.
______________
O'Rourke, No. 90-6263, 1991 U.S. App. LEXIS 19497, at *19-20 (2d
________
Cir. August 21, 1991); North Shore Labs. Corp. v. Cohen, 721 F.2d
_______________________ _____
514, 519, 520 n.5 (5th Cir. 1983).
Under a well-established rule of contract
interpretation, the court may look to the parties' post-contract
_____________
course of conduct and performance to ascertain the "practical
interpretation and application" that the parties themselves
attached to ambiguous contract language:
In the process of interpretation of the
terms of a contract, the court can
frequently get great assistance from the
interpreting statements made by the
parties themselves or from their conduct
__ ____ _____ _______
in rendering or in receiving performance
__ _________ __ __ _________ ___________
under it. . . . The process of practi-
_____ __
cal interpretation and application,
however, is not regarded by the parties
as a remaking of the contract; nor do the
courts so regard it. Instead, it is
merely a further expression by the
_ _______ __________ __ ___
parties of the meaning that they give and
_______ __ ___ _______ ____ ____ ____ ___
have given to the terms of their contract
____ _____ __ ___ _____ __ _____ ________
previously made. There is no good reason
__________ ____
why the courts should not give great
_____
weight to these further expressions by
______
the parties, in view of the fact that
they still have the same freedom of
contract that they had originally. In
cases so numerous as to be impossible of
full citation here, the courts have held
-77-
77
that evidence of practical interpretation
and construction by the parties is admis-
sible to aid in choosing the meaning to
which legal effect will be given. Oral
testimony is admissible and frequently is
absolutely necessary, even in cases where
____ __ _____ _____
the terms are fully "integrated" in
___ _____ ___ _____ ____________ __
writing, to demonstrate the application
_______
of the terms to the property, persons,
and events to which they are related.
The parties may employ language the
___ _______ ___ ______ ________ ___
application of which they know to be
___________ __ _____ ____ ____ __ __
uncertain and to which they are too
_________
indifferent at the time of executing the
contract to take the trouble to make
certain. This does not prevent the
existence of a valid contract; but it
__
causes much greater dependence to be put
______ ____ _______ __________ __ __ ___
upon their subsequent practical
____ _____ __________ _________
interpretation and construction.
______________ ___ ____________
3 Arthur L. Corbin, Corbin on Contracts 558, at 249-253 (1960)
___________________
(emphasis added). Through the performance rendered by the
parties, the court gains invaluable insight into the practical
interpretation mutually intended by the contract language. See,
___
e.g., U.S.I. Properties Corp. v. M.D. Constr. Co., Inc., 860 F.2d
____ _______________________ ______________________
1, 10 (1st Cir. 1988), cert. denied, 490 U.S. 1065 (1988).
_____ ______
Unlike a simple contract action where the post-
contract conduct of the parties usually must be presented to the
court in the form of controverted extrinsic evidence, much
relevant post-consent decree conduct in public institution reform
_______ ______
litigation takes place before the district court in the course of
______ ___ ________ _____
its ongoing superintendence of the performance required under the
decree. During the required performance, the district court is
uniquely positioned to evaluate typical modes of expression by
-78-
78
the parties and the significance of their silence or acquiescence
in the face of representations by the court and the conduct and
representations of opposing parties. It seems most appropriate
that district court findings based on extrinsic evidence should
________ _____ __ _________ ________
be reviewed for clear error only. See, e.g., Fox v. United
___ ____ ___ ______
States Dept. of Hous. & Urban Dev., 680 F.2d 315, 319 (3d Cir.
____________________________________
1982) (resort to use of extrinsic evidence in interpretation of
consent decree converts issue to one of fact). Thus, it seems
particularly inappropriate in the present context to deny
deferencetothe districtcourt'sinterpretation oftheconsent decree.
The record provides overwhelming support for the
district court findings in this case. The court found that the
Commonwealth, by its course of compliance over a period of twelve
______
years, indicated that it intended to accede to district court
_____
jurisdiction over any support facilities needed to decentralize
____________
services previously administered on the Rio Piedras premises.
________
The court based its findings on several factors.
First, the court noted that in several reports made
prior to the Secretary of Health's submission of Plan 3, the
Special Master repeatedly emphasized "the systemic approach to
securing compliance [with the decree]."34 In fact, immediately
____________________
34. In his third report filed in 1986, the Master described
the Commonwealth's recent evaluation of a "model" mental
health program in Boston (the Massachusetts Mental Health
Center), which consisted of "a complex of intensive care
units, a day-hospital, an inn and an array of residential
facilities scattered throughout the community designed to
_________ __________ ___ _________
satisfy the needs of the individual patient." The Master
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79
prior to the submission of Plan 3, the Secretary provided the
Master with budgetary information that covered the entire public
______
mental health network in Puerto Rico. The Master responded with
a letter, stating that
the report's budgetary information is ap-
parently based on a misconception of the
_ _____________ __ ___
scope of the Court's jurisdiction. The
_____ __ ___ _______ ____________
Court's authority does not encompass the
entire mental health system of Puerto
Rico, but only the following: the Rio
____ ___ _________
Piedras Psychiatric Hospital, pre-
hospital facilities such as mental health
centers and out-patient clinics which
service patients who otherwise would be
treated by the Hospital, and post-
hospital transitional and related
services which receive the Hospital's
discharged patients.
Thus, the district court reasonably found that Plan 3 contained a
commitment by the Commonwealth to "deinstitutionalize" the Hospi-
tal, which included the later transfer of patients to Guerrero.
Second, while the Commonwealth contends that it im-
mediately filed a timely objection to the scope of the district
court's jurisdiction as proposed by the Secretary in Plan 3, its
so-called "objection" merely challenged the possible extension of
_________
the court's jurisdiction to every public mental health facility
_____
____________________
concluded that the Massachusetts model "can be incorporated
into the Hospital's plan to comply with the consent decree."
The Master also stated that the Commonwealth's budget for
fiscal year 1986-87 "was entirely inadequate to bring the
Hospital and its supporting mental health services into
___ ___ __________ ______ ______ ________ ____
compliance with the consent decree," and again, later in that
__________ ____ ___ _______ ______
report, stated that "[a]t that budgetary level neither the
Hospital nor the mental health programs on which it must rely
___ ___ ______ ______ ________ __ _____ __ ____ ____
could possibly come into compliance."
-80-
80
in Puerto Rico. Moreover, the Commonwealth's own exception
______________ ___ _________
continued to treat the "institution" as including both Rio
_________ __ _____ ___ ___________ __ _________ ____ ___
Piedras and its support facilities.35 Unquestionably, the
_______ ___ ___ _______ __________
____________________
35. The Commonwealth's exception to Plan 3's jurisdictional
provisions states, in pertinent part:
Said plan includes a description of the Mental
Health Program of the Commonwealth of Puerto
Rico to illustrate this Honorable Court and
the Master as to the scope of the program.
The Psychiatric Hospital of Rio Piedras is
___ ___________ ________ __ ___ _______ __
only a part of said program and is the
____ _ ____ __ ____ _______ ___ __ ___
institution under the stipulations before this
___________ _____ ___ ____________ ______ ____
Honorable Court, with whatever facilities may
_________ _____ ____ ________ __________ ___
be used to descentralize [sic] the care of
__ ____ __ _____________ _____ ___ ____ __
said hospital's patients. As before stated
____ __________ ________
the individuals that come in contact with the
primary units of the mental health program are
not patients of the Psychiatric Hospital and
most of the time do not become so. The class
___ _____
in the present action is composed of the
__ ________ __
patients of the Psychiatric Hospital and the
________ __ ___ ___________ ________ ___ ___
institutions wherever they may be referred to
____________ ________ ____ ___ __ ________ __
in a descentralization [sic] program * [*See
__ _ _________________ _____ _______
definitions of the stipulations - June 27,
1987] Defendants respectfully reiterate their
request to maintain the scope of the class in
the above captioned case and the stipulations
agreed on by admitting from Plan #3 those
portions that apply to the Psychiatric
Hospital.
Despite the Commonwealth's clear reference to the definition
of the term "institution," the majority concludes that the
reference was later contradicted and limited by the
_______
Commonwealth's final request that the court "admit[] from
Plan 3 those portions [of the jurisdictional provisions] that
apply to the psychiatric hospital." The word "admit" refers
to the impending order of August 10, 1987, in which the
district court would either admit or reject the individual
provisions proposed in Plan 3. The objection demonstrates
that the defendants would not challenge the inclusion of Plan
3's jurisdictional provisions if interpreted so as to include
only the "psychiatric hospital," therein defined by the
_______
Commonwealth, in perfect agreement with the language of the
consent decree, as "the institution . . . with whatever
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district court appropriately treated the Commonwealth's
"objection" as strong extrinsic evidence that the Commonwealth
itself intended that the consent decree cover Rio Piedras and
whatever facilities were used to decentralize the care of Rio
Piedras patients.
Third, when the district court finally entered its
order incorporating Plan 3, thereby defining its jurisdiction to
include Rio Piedras' support facilities generally and Guerrero
___ ________
specifically, the Commonwealth neither objected nor appealed.
____________
This telltale silence on the part of the Commonwealth further
reinforced the district court's reading of the Commonwealth
"objection" to Plan 3 as an objection to any extension of
_________
jurisdiction to all mental health facilities in the Commonwealth,
___
____________________
facilities may be used to decentralize the care of said
hospital's patients."
Finally, the majority states that the district court, in
its order of August 10, 1987, interpreted the Commonwealth's
challenge as an objection to the expansion of the court's
jurisdiction beyond Rio Piedras, rather than as a narrower
objection to an extension of jurisdiction beyond the
"institution" to all mental health facilities in Puerto Rico.
___
After generally noting that the Commonwealth had never before
questioned the scope of the court's jurisdiction as opined by
the Master, the district court merely concluded that the
defendants had "waived whatever claim that they might have
________ _____ ____ ____ _____ ____
had about . . . the scope of the stipulations." The court
___
decided that defendants could raise no jurisdictional
__
objection of any kind at that late stage of the litigation,
and it never addressed the nature of the jurisdictional
"objection" advanced in the exception.
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and not as a challenge to district court jurisdiction over Rio
Piedras and its decentralized support system.36
Finally, the district court noted that the
Commonwealth continued to allow tripartite evaluation visits to
these transitional facilities after 1987, clearly indicating that
_____ ____
the physical conditions at these facilities would be material to
the issue of full Commonwealth compliance with the consent
decree.37 The majority dismisses these tripartite visits by
____________________
36. In rejecting the plaintiff's equitable estoppel
argument, the majority states that the transferred patients
did not rely to their detriment on the Commonwealth's
acquiescence or its representations regarding the court's
jurisdiction. On the contrary, transferred patients, as
members of the plaintiff class, were contracting parties for
___________
purposes of the consent decree and must be deemed to have
relied on the definition of "institution" contained in the
consent decree. If patients who were to be transferred had
been alerted that, once transferred from Rio Piedras, they
would be beyond the reach of the district court's equitable
powers, the plaintiff class could have prevented the
Commonwealth from transferring them from Rio Piedras, thereby
keeping them under the protection of the decree. Once their
reasonable reliance on the Commonwealth's course of com-
pliance with the consent decree caused transferred patients
to become stranded beyond the district court's equitable
powers, transferred patients inarguably suffered a legal
detriment of significant proportions under the jurisdictional
interpretation adopted by the majority.
37. There is no inequity in using the post-decree
acquiescence or the practical interpretation of the consent
decree by successive officials of the Commonwealth to
determine the original intent of the consent decree. The
general rule that one administration cannot bind its
successors by its stated positions does not apply to
___
government officials in the context of public institutional
reform litigation. See Fed. R. Civ. P. 25(d); see also
___ ___ ____
Newman v. Graddick, 740 F.2d 1513, 1517-18 (11th Cir. 1984)
______ ________
(current state officials have authority to enter into consent
decree and bind incoming successors, who upon taking office
become parties to decree through automatic substitution)
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concluding that they were "undertaken for the limited purpose of
'evaluat[ing] if transferred patients were better off than if
______ ___
they remained in the hospital.'" (emphasis added). Assuming,
arguendo, that the district court possessed only the very limited
________
authority to compel transfers out of Rio Piedras solely to ensure
compliance with the stipulations at Rio Piedras, the majority
__ ___ _______
offers no explanation for the Commonwealth's acquiescence to any
such comparative study of conditions at the collateral
facilities. The only conceivable purpose to be served by such a
comparative study would have been to ensure that the minimum
conditions prescribed in the stipulations were being applied
throughout the "institution."
Since the case simply has not been made that the
district court's findings are clearly erroneous, and its findings
comport with a reasonable interpretation of "decentralized form,"
I believe we are required to defer to the district court's
"intimate understanding of the history and circumstances of the
litigation," United States v. Commonwealth of Massachusetts, 890
_____________ _____________________________
F.2d 507, 510 (1st Cir. 1989), especially in a case where there
can be no doubt that the district court engaged in a sensitive
analysis of the principles of federalism implicated by its deci-
____________________
(citing United States v. Swift, 286 U.S. 106 (1932)). The
_____________ _____
practical interpretation given the original terms of the
consent decree by each successive Commonwealth
administration, as a substituted party to the proceedings,
bears directly on our inquiry into the meaning of the consent
decree.
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sion. Therefore, although I concur in Part I of the majority
opinion, I must respectfully dissent from Part II.
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