Benjamin v. Department of Public Welfare of Commonwealth of Pennsylvania, 040511 FED3, 10-1908

Docket Nº:10-1908
Opinion Judge:STAPLETON, Circuit Judge.
Party Name:FRANKLIN BENJAMIN, by and through his next friend, Andree Yock; RICHARD GROGG; FRANK EDGETT, by and through their next friend, Joyce McCarthy; SYLVIA BALDWIN, by and through her next friend Shirl Meyers; ANTHONY BEARD, by and through his next friend, Nicole Turman, on behalf of themselves and all others similarly situated v. DEPARTMENT OF PUBLIC WE
Attorney:Owen H. Smith (Argued) Sidley Austin and John E. Riley, Vaira & Riley, Attorneys for Appellants. Mark J. Murphy, Robert W. Meek (Argued), Robin Resnick, Disability Rights Network of PA and Stephen F. Gold, Attorneys for Appellees. Lesli C. Esposito (Argued), DLA Piper, Attorney for Amicus Curiae ...
Judge Panel:BEFORE: JORDAN, GREENAWAY, JR., and STAPLETON, Circuit Judges.
Case Date:April 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

FRANKLIN BENJAMIN, by and through his next friend, Andree Yock; RICHARD GROGG; FRANK EDGETT, by and through their next friend, Joyce McCarthy; SYLVIA BALDWIN, by and through her next friend Shirl Meyers; ANTHONY BEARD, by and through his next friend, Nicole Turman, on behalf of themselves and all others similarly situated

v.

DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; SECRETARY OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, CRAIG SPRINGSTEAD, by and through his father and guardian, Bertin Springstead; MARIA MEO, by and through her mother and guardian, Grace Meo; DANIEL BASTEK, by and through his father and guardian, John Bastek; MICHAEL STORM, by and through his guardian, Polly Spare; BETH ANN LAMBO, by and through her father and guardian, Joseph Lambo; RICHARD CLARKE, by and through his father and guardian, Leonaed Clarke; RICHARD KOHLER, by and through his sister and guardian, Sara Fuller; MARIA KASHATUS, by and through her father and guardian, Thomas Kashatus; WILSON SHEPPARD, by and through his brother and next friend, Alfred Sheppard, Appellants

Pursuant to Fed. R. App. P. 12(a)

No. 10-1908

United States Court of Appeals, Third Circuit

April 5, 2011

NOT PRECEDENTIAL

Argued February 7, 2011

On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. Civil No. 1-09-cv-01182) District Judge: Hon. John E. Jones, III.

Owen H. Smith (Argued) Sidley Austin and John E. Riley, Vaira & Riley, Attorneys for Appellants.

Mark J. Murphy, Robert W. Meek (Argued), Robin Resnick, Disability Rights Network of PA and Stephen F. Gold, Attorneys for Appellees.

Lesli C. Esposito (Argued), DLA Piper, Attorney for Amicus Curiae Voices of the Retarded, Inc.

Carl A. Solano (Argued), Schnader Harrison, Segal & Lewis, Attorney for Amicus Curiae Diane Solano.

Joseph A. Sullivan, Jeremy Heep, Pepper Hamilton, and Natalie Grill Einsig, Pepper Hamilton, Attorneys for Amicus Curiae The Arc of Pennsylvania and Vision for Equality, Inc.

BEFORE: JORDAN, GREENAWAY, JR., and STAPLETON, Circuit Judges.

OPINION

STAPLETON, Circuit Judge.

Appellants-Intervenors Springstead et al. seek to intervene in this class action brought against Defendants Pennsylvania Department of Public Welfare ("DPW") and Secretary of Public Welfare to enforce rights the Plaintiffs-Appellees claim to have under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. We will affirm the District Court's denial of permissive intervention and intervention of right.

I. Background

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), established that it is a violation of the ADA, the RA, and their implementing regulations to force developmentally disabled patients to reside in institutions when they are able and willing to live in a manner more fully integrated into the community. At the same time, Olmstead and the regulations make clear that "community based treatment [cannot] be imposed on patients who do not desire it." Id. at 602 (citing 28 C.F.R. § 35.130(e)(1) (1998) and 28 C.F.R. pt. 35, App. A, p. 450 (1998)).

Plaintiffs-Appellees Benjamin et al. ("Plaintiffs") are individuals with mental retardation who reside in intermediate care facilities for persons with mental retardation ("ICFs/MR") operated by the DPW. They contend that the DPW's failure to offer community services to them and others similarly situated violates the integration mandates of the ADA and RA. Plaintiffs sought and secured certification of the following class:

All persons who: (1) currently or in the future will reside in one of Pennsylvania's state-operated intermediate care facilities for persons with mental retardation (ICFs/MR); (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.

A7.

Plaintiffs seek declaratory and injunctive relief. They recognize that "Olmstead requires that patients eligible and desirous of community placement be discharged into community-based programs [only] if placement can be reasonably accommodated, taking into account the resources of the state and the needs of other persons in its care." Frederick L. v. Dep't. of Pub. Welfare, 422 F.3d 151, 156-57 (3d Cir. 2005) (citing Olmstead, 527 U.S. at 587). Accordingly, by way of remedy, they seek an injunction directing the DPW, inter alia, (1) to maintain a "Planning List that consists of all state ICF/MR residents who have been identified as not opposed to discharge to community services, " (2) to promptly place "on the Planning List the named Plaintiffs and any other state ICF/MR residents identified by the ICF/MR Facility Directors as having affirmatively expressed their desire to be discharged to the community, " (3) to question "ICF/MR residents and/or their involved family or guardians" at least annually regarding their current preference in order to keep the Planning List current, and (4) beginning in fiscal year 2011-12, to "develop and implement a viable integration plan that provides community services to at least 100 individuals on the Planning List annually for each of the first three years" and for at least 75 individuals from that list thereafter until all on the list have been discharged. A296-99.

The Springstead Intervenors ("Intervenors") are residents of Pennsylvania ICFs/MR who would decline community placement if it were offered to them. They moved to intervene of right and permissively under Federal Rule of Civil Procedure 24. Intervenors alleged that they are de facto members of the certified class, that they have protectable interests jeopardized by this lawsuit, and that neither Plaintiffs nor the DPW sufficiently represent their interests. The District Court denied the motion to intervene of right or permissively, and Intervenors timely appealed.1

Following the filing of this appeal, the District Court entered summary judgment in favor of Plaintiffs on the liability issue. The remedy issue remains before it.

II. Discussion

We Court review a district court's denial of permissive intervention and intervention of right for abuse...

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