Bogard v. Wright, 97-2926

• Decision Date: 28 October 1998
• Docket Number: No. 97-2926,97-2926
• Citation: 159 F.3d 1060
• Parties: Frank BOGARD, et al., Plaintiffs-Appellees, v. Robert WRIGHT, Director of the Illinois Department of Public Aid, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1060

159 F.3d 1060

Frank BOGARD, et al., Plaintiffs-Appellees, v. Robert WRIGHT, Director of the Illinois Department of Public

Aid, et al., Defendants-Appellants.

No. 97-2926.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1998.

Decided Oct. 28, 1998.

Diane Redleaf (argued), Robert E. Lehrer, Lehrer & Redleaf, Chicago, IL, for Plaintiffs-Appellees.

Rita M. Novak, Office of the Attorney General, Chicago, IL; Jeremiah Marsh (argued), John L. Rogers, Claudette P. Miller, Hopkins & Sutter, Chicago, IL, for Defendants-Appellants.

Before POSNER, Chief Judge, and RIPPLE and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

A class consisting of mentally retarded citizens of Illinois who reside in nursing homes sued the state agencies that are responsible for their care. Filed in 1988, the suit complained that the state had violated the federal constitutional and statutory rights of the class members by placing them in nursing homes rather than in less restrictive environments. The suit was resolved by the entry of a consent decree in 1993 that provided for extensive injunctive relief--the kind of "regulatory" relief that is common in institutional reform litigation, such as this suit. See, e.g., Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); United States v. Board of School Commissioners, 128 F.3d 507 (7th Cir.1997); People Who Care v. Rockford Board of Education, 111 F.3d 528 (7th Cir.1997). Included was a provision for the appointment by the district court of a "monitor" to report on, and assist with, the progress of the defendants in complying with the decree. The provision (Article VIII) ended by stating that "the monitor's activities shall be terminated on June 30, 1997 unless extended by order of this court." Two weeks before that termination date, the district judge ordered the monitor extended for three years. This was done over the objection of the state, which contended that it had substantially complied with the decree and so there was no further need for the monitor, whose fees and expenses come to about $150,000 a year, paid for by the state. The state now appeals from the order extending the monitor's term, arguing that before taking this step the judge should have conducted an evidentiary hearing to determine whether, as the state claims, substantial compliance has been achieved.

A panel of this court, in an unpublished order, denied the plaintiffs' motion to dismiss the appeal for want of appellate jurisdiction. Such an order does not, however, preclude the merits panel from revisiting the jurisdictional issue. United States v. City of Milwaukee, 144 F.3d 524, 526 n. 1 (7th Cir.1998); Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1124 (7th Cir.1997); Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir.1991). With the benefit of additional briefing and of oral argument, we have concluded that we lack jurisdiction.

The order extending the monitor was not a final decision appealable under 28 U.S.C. § 1291. It is true that the consent decree, though in a sense interlocutory because it contemplated continued proceedings in the district court to effect compliance with the regulatory terms of the decree, was a final decision for purposes of section 1291. Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 654 (1st Cir.1997); Edwards v. City of Houston, 78 F.3d 983, 993 (5th Cir.1996); Stone v. City & County of San Francisco, 968 F.2d 850, 854 (9th Cir.1992); cf. Rufo v. Inmates of Suffolk County Jail, supra, 502 U.S. at 391, 112 S.Ct. 748; Balark v. City of Chicago, 81 F.3d 658, 662 (7th Cir.1996). It wound up the suit, and the fact that it was a complex equitable decree rather than a simple money judgment, and that it was entered by consent, did not take it out of the class of final judgments. That makes the order extending the monitor a "postfinal" order, and it might seem that every postfinal order is itself final. But that is not the conclusion that the courts have reached in dealing with orders entered after the entry of the conventionally final judgment. As in the analogous case of adversary proceedings nested within an ongoing bankruptcy, In re James Wilson Associates, 965 F.2d 160, 166 (7th Cir.1992), we try to treat the postjudgment proceeding as if it were a free-standing lawsuit, e.g., In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F.3d 755, 760 (7th Cir.1994); Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1224-25 (7th Cir.1993); King v. Ionization International, Inc., 825 F.2d 1180, 1184-85 (7th Cir.1987), and to identify the final decision in the postjudgment proceeding and confine any further appeal under section 1291 to that decision. Motorola, Inc. v. Computer Displays International, Inc., 739 F.2d 1149, 1154 (7th Cir.1984).

The approach presupposes that the postjudgment proceeding is enough like a free-standing lawsuit to enable a plausible counterpart to the conventional final judgment to be picked out. The presupposition fails when the decree is dealing with a consent decree that, like the one involved in this case, has no termination date. The postjudgment proceeding could drag on for many years and involve a host of far-reaching orders the consequences of which could not be undone when (if ever) the postjudgment proceeding ended with a showing of compliance so complete that the monitor's services could be dispensed with. Some courts therefore prefer to evaluate orders in postjudgment proceedings in institutional reform litigation under the concept of "pragmatic finality." Stone v. City & County of San Francisco, supra, 968 F.2d at 855; United States v. International Brotherhood of Teamsters, 931 F.2d 177, 182-83 (2d Cir.1991); Walker v. HUD, 912 F.2d 819, 825 (5th Cir.1990); United States v. Western Electric Co., 777 F.2d 23, 26-28 (D.C.Cir.1985); see generally Gillespie v. United States Steel Corp., 379 U.S. 148, 152-54, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3913 (2d ed.1992). That does not strike us as a satisfactory resolution. The concept is formless (it is not even named or described in the Teamsters and Walker cases), and there are other, clearer ways to address the concern that lies behind it. That concern is with orders that have irrevocable consequences. The orthodox, and as it seems to us the adequate, routes for obtaining immediate appellate review of orders that cause irreparable harm are mandamus (see 28 U.S.C. § 1651; Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 383-85, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987) (concurring opinion); In re Sandahl, 980 F.2d 1118 (7th Cir.1992)), and 28 U.S.C. § 1292(a)(1), which authorizes the appeal of nonfinal orders granting, modifying, denying, refusing, continuing, dissolving, or refusing to modify or dissolve injunctions.

Mandamus won't lie here because the "error," if that is what it was, in extending the monitor was not so egregious as to warrant immediate appellate intervention. E.g., Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1295 (7th Cir.1995). And the order extending the monitor's term was not the grant of an injunction. Deckert v. Independence Shares Corp., 311 U.S. 282, 291 n. 4, 61 S.Ct. 229, 85 L.Ed. 189 (1940); People Who Care v. Rockford Board of Education, supra, 111 F.3d at 540-41. The appointment of a special master or court-appointed expert witness or other court adjunct, such as a monitor, although it is an order to do rather than an order to pay, is deemed a procedural order, and procedural orders, though they often have the form of an injunction, are not classified as injunctions for purposes of section 1292(a)(1). E.g., Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377-78, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); United States v. Nixon, 418 U.S. 683, 690-91, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); People Who Care v. Rockford Board of Education, supra, 111 F.3d at 540-41. (Otherwise the courts of appeals would be flooded with interlocutory injunctions.) By the same token, the extension of the monitor, while it "continued" him in office, since without an order his term would have expired automatically (Ricci v. Okin, 978 F.2d 764, 765 (1st Cir.1992)), did not "continue" the injunction because the appointment of the monitor was not itself an injunction, although it was a provision in an equitable decree. So the extension is not appealable under the part of section 1292(a)(1) relating to orders continuing injunctions.

We are mindful that most procedural orders, including those relating to masters and other judicial adjuncts, are entered before final judgment, and so in principle anyway are reviewable, albeit not immediately, when that judgment is entered. And as we said earlier, while some postjudgment proceedings have a natural terminus, a proceeding to enforce a consent decree does not. But to allow all procedural rulings in proceedings to enforce consent decrees to be immediately appealable would threaten an avalanche of interlocutory appeals, since such proceedings are frequently, as here, complex and protracted. To have to pick and choose among them on the basis of the nebulous concept of "pragmatic finality" would add a further level of complication and by its very indefiniteness incite appeals.

The defendants cannot obtain review under the provision of section 1292(a)(1) that authorizes an immediate appeal from an order modifying an injunction. The provision of the consent decree which states that "the monitor's activities shall be terminated on June 30,...