LaShawn A. v. Barry, 94-7044

• Decision Date: 30 January 1996
• Docket Number: No. 94-7044,94-7044
• Citation: 69 F.3d 556
• Parties: LaSHAWN A., et al., Appellees v. Marion S. BARRY, Jr., as Mayor of the District of Columbia, et al., Appellants. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 556

69 F.3d 556

314 U.S.App.D.C. 392

LaSHAWN A., et al., Appellees

v.

Marion S. BARRY, Jr., as Mayor of the District of Columbia,

et al., Appellants.

No. 94-7044.

United States Court of Appeals,District of Columbia Circuit.

Argued April 19, 1995.

Decided Oct. 31, 1995.

Rehearing Denied Jan. 30, 1996. ^*

Rehearing In Banc Granted, Judgment Vacated, Jan. 30, 1996.

Appeal from the United States District Court for the District of Columbia (No. 89cv01754).

Donna M. Murasky, Assistant Corporation Counsel, argued the cause for appellants. With her on the briefs were Garland Pinkston, Acting Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.

Christopher T. Dunn argued the cause for appellees. With him on the brief were Marcia R. Lowry, Elizabeth Symonds and Arthur B. Spitzer.

Before: WILLIAMS, HENDERSON and RANDOLPH, Circuit Judges.

Dissenting opinion filed by Circuit Judge RANDOLPH.

STEPHEN F. WILLIAMS, Circuit Judge:

This case appears before us for the second time, with the defendants--the mayor and other officials of the District of Columbia--asking for relief from a consent decree pursuant to which the district court is exercising broad supervisory authority over the District's child welfare system. Because the district court has not re-examined the validity of the federal claims underlying its jurisdiction since the Supreme Court issued a decision that seems to undermine the statutory support for federal jurisdiction (though not the constitutional basis of certain claims), we remand the case to the district court to perform that re-examination. See United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

* * *

Plaintiffs, a class of children who either are in foster care under the supervision of the D.C. Department of Human Services ("DHS"), or have been reported to be abused or neglected but are not yet in DHS care, sought injunctive relief based on alleged violations of federal statutory and constitutional law, as well as of local law.

The district court agreed for the most part with plaintiffs. LaShawn A. v. Dixon, 762 F.Supp. 959 (D.D.C.1991). It found explicitly that the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. Secs. 620-27 and Secs. 670-79, afforded plaintiffs rights actionable under 42 U.S.C. Sec. 1983 (1988), and held implicitly that the Child Abuse Prevention and Treatment Act, 42 U.S.C. Secs. 5101-06, did so as well. See 762 F.Supp. at 988-89. It detailed widespread violations of those statutes. Id. at 968-87. The court proceeded to find that children in foster care under the supervision of the District enjoyed a liberty interest under the U.S. Constitution, id. at 991-92, with a concomitant right to such services as were "essential to preventing harm" to the children, id. at 993. Compliance with this norm was to be measured by the "professional judgment standard", drawn from Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Under that standard, "liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323, 102 S.Ct. at 2462 (quoted at 762 F.Supp. at 994). Finally, the court held that various practices of the District violated that standard, as well as the two pertinent federal statutes and various provisions of local law. 762 F.Supp. at 996-98. It did not find a private right of action for the children under D.C. law, although its discussion of possible entitlements protected under the due process clause may have assumed such rights. Id. at 993-94.

In response to this merits determination, the parties negotiated a broad consent decree, which in its current form occupies 90 single-spaced pages and constitutes a rather comprehensive manual for the conduct of the District's child welfare activities. The agreement reserved defendants' right to appeal the district court's liability ruling and addressed the possibility that the court's merits opinion might be "vacated" in whole or in part. Section XXII(C) provides:

In the event that the court's Memorandum Opinion of April 18, 1991, is vacated on appeal in its entirety, this Order and any subsequent implementation plan or plans shall be null and void. In the event that the court's Memorandum Opinion of April 18, 1991, is vacated on appeal in part, the portions of this Order or any subsequent implementation plan or plans that are directly based on that part of the Memorandum Opinion that is vacated shall be null and void.

In their first appeal, defendants challenged the findings of constitutional violations. They also claimed that, in light of the intervening Supreme Court decision in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), holding that Secs. 671(a)(9) & (a)(15) of the Adoption Assistance Act are not enforceable in a Sec. 1983 action, the federal statutes on which the district court had relied were not enforceable by private plaintiffs. This court found it unnecessary "to confront these constitutional and federal statutory issues, for the district court judgment is completely supportable on the grounds of local law", which, we said, creates a private cause of action both "for children in foster care and for children reported to have been abused or neglected but not yet in the District's custody." LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319, 1322, 1325 (D.C.Cir.1993). Because the consent decree had been drafted to conform to federal as well as local law, we remanded to the district court "with instructions to fashion an equally comprehensive order based entirely on District of Columbia law, if possible. If there are any portions of the consent decree that depend entirely on a federal statute, the district court should consider the impact of [Suter ] on those provisions before it includes them in the revised consent decree." Id. at 1326.

On remand, the district court declared, despite our having explicitly sidestepped the issue of liability under federal law, that we had "clearly affirmed this Court's Memorandum Opinion." LaShawn A. v. Kelly, Civ. No. 89-1754, Order at 1 (D.D.C. Nov. 12, 1993) (citing our decision, 990 F.2d at 1326 ("Because the district court's judgment is independently supportable by District of Columbia law, we affirm the court's decision in favor of the children in this case.")). On that basis, it rejected defendants' argument that Sec. XXII(C) of the consent decree required modification of the decree. Id. at 2. It did not in any way address whether other circumstances--such as the Suter decision itself--might require modification of the decree or re-examination of the court's jurisdiction under United Mine Workers v. Gibbs. After modifying certain provisions of the consent decree to remove terms that the parties evidently agreed were in violation of District law, it rejected defendants' contention that some provisions still violated local law. It acknowledged that the decree "exceeds the specific mandates of local law", but found the excess "a necessary and appropriate use of [the court's] equitable authority" in light of defendants' "widespread local law violations". LaShawn A. v. Kelly, Civ. No. 89-1754, Order at 1 (D.D.C. Jan. 27, 1994). See also Order of Nov. 12, 1993 at 2 ("To the extent that portions of the remedial order exceed the terms of local law, the Court invokes its equitable authority in approving the consent decree.").

* * *

Defendants now return to us, questioning whether the district court has jurisdiction to enforce a wide-ranging institutional reform order against the government of the District of Columbia based entirely on District of Columbia law. We regard the defendants' claim as basically posing a question under step 2 of Gibbs, namely, whether, given power at the outset in a generalized sense to decide the plaintiffs' state law claims, the district court should, despite Suter, exercise that power in the form of continuing to enforce a massive institutional reform decree of the sort it had originally adopted.

Law of the Case Considerations

Plaintiffs respond that the jurisdictional question has already been decided, by the panel in the first appeal, so that defendants' claim is barred by law-of-the-case doctrine. That doctrine embodies the general rule that

a court involved in later phases of a lawsuit should not re-open questions decided (i.e., established as the law of the case) by that court or a higher one in earlier phases. When there are multiple appeals taken in the course of a single piece of litigation, law-of-the-case doctrine holds that decisions rendered on the first appeal should not be revisited on later trips to the appellate court.

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.1995). The doctrine normally applies to issues decided explicitly or "by necessary implication". Id.

These conventional requirements have certainly been fulfilled in this case. The prior panel's decision necessarily implied that a remedial order supported entirely by local law could properly be entered. The court explicitly recognized that its affirmance rested "entirely on the basis of local law", LaShawn A. v. Kelly, 990 F.2d at 1326, and implicitly held that an order devoid of federal support would present no jurisdictional problem. We said that our "authority to decide the case entirely on pendent state grounds is incontrovertible", id., citing United Mine Workers v. Gibbs, 383 U.S. 715, 722, 86 S.Ct. 1130, 1136, 16 L.Ed.2d 218 (1966), for the proposition that a federal court presented with federal and local law claims may, "even though the federal ground be not established ... nevertheless retain and dispose of the case upon the non-federal ground", id. (emphasis deleted). As to the second step required by Gibbs, the decision...