Henrietta D., Nidia S., et al. v. Giuliani, Docket Nos. 00-9238 and 00-9312

• Decision Date: 12 March 2001
• Docket Number: Docket Nos. 00-9238 and 00-9312
• Citation: 246 F.3d 176
• Parties: (2nd Cir. 2001) HENRIETTA D., NIDIA S., SIMONE A., EZZARD S., JOHN R., and PEDRO R., on behalf of themselves and all others similarly situated, Plaintiffs Appellees, v. RUDOLPH GIULIANI, Mayor of the City of New York, MARVA HAMMONS, Administrator of the New York City Human Resources Administration and Commissioner of the New York City Department of Social Services, and MARY E. GLASS, Commissioner of the New York State Department of Social Services, Defendants Appellants. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 176

246 F.3d 176 (2nd Cir. 2001)

HENRIETTA D., NIDIA S., SIMONE A., EZZARD S., JOHN R., and PEDRO R., on behalf of themselves and all others similarly situated, Plaintiffs Appellees, v. RUDOLPH GIULIANI, Mayor of the City of New York, MARVA HAMMONS, Administrator of the New York City Human Resources Administration and Commissioner of the New York City Department of Social Services, and MARY E. GLASS, Commissioner of the New York State Department of Social Services, Defendants Appellants.

Docket Nos. 00-9238 and 00-9312

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 12, 2001

Decided: April 09, 2001

[Copyrighted Material Omitted]

SUSAN J. KOHLMANN, Pillsbury Winthrop LLP, New York, NY (Karen B. Dine and David W. Oakland, Pillsbury Winthrop, LLP; Vickie Neilson, HIV Law Project, New York, NY; and Armen H. Merjian and Virginia Shubert, Housing Works, New York, NY, on the brief), for Plaintiffs-Appellees.

EDWARD F.X. HART, Assistant Corporation Counsel, Office of the Corporation Counsel of the City of New York, New York, NY (Michael D. Hess, Corporation Counsel, Leonard Koerner, Assistant Corporation Counsel, and Georgia M. Pestana, Assistant Corporation Counsel, on the brief), for Defendants-Appellants Rudolph Giuliani and Marva Hammons.

VINCENT LEONG, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, NY (Eliot Spitzer, Attorney General, Michael S. Belohlavek, Deputy Solicitor General, and Deon Nossel, Assistant Solicitor General, on the brief), for Defendant-Appellant Mary E. Glass.

Before: JACOBS and SOTOMAYOR, Circuit Judges, and BERTELSMAN, District Judge.^*

JACOBS, Circuit Judge:

This appeal presents a threshold question as to whether we have appellate jurisdiction where the district court (i) found that injunctive relief against the defendants was warranted, (ii) directed the Clerk of the Court to close the case, and (iii) entered a "Judgment," but (iv) declined to order the defendants to do anything, leaving the terms of the injunction for a later determination by a magistrate judge. We conclude that we lack jurisdiction, and dismiss the appeal.

BACKGROUND

This is a class action brought in the United States District Court for the Eastern District of New York (S. Johnson, J.) by indigent New York City residents who suffer from AIDS and other HIV-related illnesses. All plaintiffs are clients of the City's Division of AIDS Services and Income Support ("DASIS"), an agency whose sole function is to assist persons with HIV-related diseases in obtaining public assistance benefits and services. Plaintiffs allege that despite the DASIS initiative, New York City and New York State are failing to provide them with adequate access to public benefits. Plaintiffs sought a declaratory judgment and a permanent injunction.

Following a bench trial, Judge Johnson detailed his findings of fact and conclusions of law in a memorandum and order dated September 18, 2000. The district court determined inter alia that New York City, through its DASIS program, failed to provide plaintiffs with meaningful access to public assistance benefits and services in violation of Title II of the Americans with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act of 1973. Specifically, the district court found that the statute creating DASIS and defining its duties contained the reasonable accommodations requested by plaintiffs, and that the City's failure to comply with the DASIS law violated the ADA and the Rehabilitation Act. See Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 205-14 (E.D.N.Y. 2000). The district court found New York State liable for violating the ADA and § 504 based on its failure to supervise New York City in the provision of public benefits and services. See id. at 216-17. The conclusions of law announced the district court's intention to award plaintiffs with both declaratory and permanent injunctive relief. See id. at 204, 214. In the document's final section, entitled "Remedies," the district court "ORDERED, ADJUDGED, AND DECLARED" (1) that the City had violated the ADA, the Rehabilitation Act, as well as other federal and state laws; and (2) that the State had violated the ADA and the Rehabilitation Act. Id. at 220-21. The court completed the "Remedies" section as follows:

IT IS FURTHER ADJUDGED, ORDERED, AND DECREED that

3. This Court retains full jurisdiction over compliance with this judgment.

4. This Court shall appoint the Honorable Cheryl L. Pollak, United States Magistrate Judge to will [sic] monitor compliance with the terms of this order for a period of three years from this date. Magistrate Judge Pollak shall have the power to compel compliance with the requirements of this judgment, and to recommend penalties and sanctions in the event of noncompliance.

Id. at 221. The final sentence of the memorandum and order directed the Clerk of the Court to close the case. See id.

The same day that the memorandum and order was issued, the court entered a "Judgment," which incorporated the declarations of liability and the appointment of Magistrate Judge Pollak, and added that "IT IS ORDERED AND ADJUDGED that Judgment is entered in favor of the plaintiff [sic] and against the defendant [sic]." The defendants immediately appealed.

At oral argument before this Court, we raised the issue of our jurisdiction sua sponte, as we are obliged to do when it is questionable. See Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir. 1995). In particular, we observed that neither the memorandum and order nor the "Judgment" described what injunctive relief the plaintiffs were entitled to, or (to say the same thing) articulated what actions defendants were required to do or refrain from doing. The parties explained that they were in the process of negotiating the terms of relief under the supervision of Magistrate Judge Pollak. At that point, we directed the parties to provide us with the most recent draft of those terms, and to brief the question of appellate jurisdiction.

The draft provided by the parties is styled an "Order of Compliance." When finalized, it will be signed by Magistrate Judge Pollak. The order would impose numerous obligations on the City and State. Among other things, it would require the City to "provide Plaintiffs' counsel with a proposed plan and time frame for hiring, training, and deploying sufficient case managers and supervisors to meet the legally-mandated ratios" of caseworkers to DASIS clients described in a New York City law; to "appoint a representative to handle all problems that DASIS clients are experiencing as reported by Plaintiffs' counsel or their representative 'Troubleshooter'"; to permit plaintiffs' counsel "to conduct on-site inspections of DASIS centers to monitor DASIS' compliance with the law"; and to provide plaintiffs' counsel on a monthly basis with vast amounts of data concerning DASIS' operations. The State would be required, among other things, to "appoint a representative to handle problems that DASIS clients are experiencing relating to [administrative] Fair Hearings as reported by Plaintiffs' counsel or their representative 'Troubleshooter'" and to issue 90% of its administrative fair hearing decisions within 60 days of a request for a fair hearing by a DASIS client.

DISCUSSION

The parties posit two bases for our jurisdiction: 28 U.S.C. § 1291 and § 1292(a)(1).

I. 28 U.S.C. § 1291

Section 1291 confers on the courts of appeals jurisdiction over "final decisions" of district courts. A decision is "final" for purposes of § 1291 if it "'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Ellis v. Israel, 12 F.3d 21, 23 (2d Cir. 1993) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)).

The City and State defendants argue that the district court's decision is final because the court awarded plaintiffs declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. This contention is plainly incorrect. An award of declaratory relief on all claims is a final order in a case in which only declaratory relief is sought, see id. § 2201 (a declaratory judgment "shall have the force and effect of a final judgment or decree and shall be reviewable as such"); but a declaration has no such effect when other remedial issues remain unresolved. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742 (1976). The declaratory judgment in this case did nothing more than determine liability, leaving the measure of prospective relief for another day. Such an order "has been a classic example of non-finality" since "the time of Chief Justice Marshall."¹ Taylor v. Board of Educ. 288 F.2d 600, 602 (2d Cir. 1961) (Friendly, J.); see also 15B Charles Alan Wright et al., Federal Practice and Procedure § 3915.2 (2d ed. 1992) ("[A] partial determination [of relief] cannot be elevated to finality simply by characterizing it as a declaratory 'judgment.'").

Although Judge Johnson's memorandum and order characterizes the magistrate judge's role as supervisory only, the draft "Order of Compliance" demonstrates that her first task is to work with the parties to determine what affirmative obligations should be imposed on the defendants. Cf. Petereit, 63 F.3d at 1175 (the pendency of "merely ministerial" tasks relating to relief is not fatal to finality and consequent appealability) (emphasis added); Arp Films, Inc. v. Marvel Entertainment Group, 905 F.2d 687, 689 (2d. Cir. 1990) (per curiam) (same); Taylor, 288 F.2d at 602 (same). Indeed, without such a further order, it is impossible to see what the magistrate judge would be supervising. Thus, the draft Order contemplates that the magistrate judge will "so order" such relief and only then (as the draft terms reflect) will she have ongoing supervisory responsibilities. Cf. Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 564-65 (2d Cir. 1991) (after jurisdiction shifts to...