LaShawn A. v. Barry, No. 94-7044

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: RANDOLPH; There is no reason to apply law-of-the-case principles less rigorously to transfer decisions that implicate the transferee's jurisdiction. Perpetual litigation of any issue--jurisdictional or nonjurisdictional--delays, and therefore threate
• Citation: 87 F.3d 1389
• Parties: , 65 USLW 2049 LaSHAWN A., et al., Appellees, v. Marion S. BARRY, Jr., et al., Appellants.
• Docket Number: No. 94-7044
• Decision Date: 09 July 1996

Page 1389

87 F.3d 1389 318 U.S.App.D.C. 380, 65 USLW 2049 LaSHAWN A., et al., Appellees,
v.
Marion S. BARRY, Jr., et al., Appellants. No. 94-7044.
United States Court of Appeals,
District of Columbia Circuit. Argued In Banc May 8, 1996.
Decided July 9, 1996.

Donna M. Murasky, Assistant Corporation Counsel, argued the cause, for appellants. With her on the briefs, were Charles F. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel. Garland Pinkston, Jr., Principal Deputy Corporation Counsel at the time the briefs were filed, and Vanessa Ruiz, Assistant Corporation Counsel, entered appearances.

Marcia R. Lowry, New York City, argued the cause, for appellees. With her on the brief, were Craig R. Levine, New York City and Arthur B. Spitzer, Washington, DC. Christopher T. Dunn, Washington, DC, entered an appearance.

Page 1391

[318 U.S.App.D.C. 382] A. Duncan Whitaker, Washington, DC, and Suzan J. Aramaki, were on the brief, for amicus curiae Jerome G. Miller, as General Receiver.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge WILLIAMS, in which Circuit Judge HENDERSON joins.

RANDOLPH, Circuit Judge.

In this ongoing litigation over the District of Columbia's foster care system, we granted rehearing in banc to decide whether one panel of this court may reconsider a prior panel's decision directing the district court to exercise pendent jurisdiction in the case. The answer is no.

I

In 1989, plaintiffs brought this class action on behalf of the abused and neglected children who rely on the District of Columbia's foster care system. They alleged that the defendants--the mayor and other high-level District officials--were responsible for widespread violations of their rights under the United States Constitution, various federal statutes, and a long list of local laws. Two weeks of trial testimony revealed the District of Columbia's deficient and inept administration of its foster care system. The testimony, and more than a thousand admissions of fact by the District, showed that District officials had consistently failed to carry out responsibilities imposed on them by federal and local laws. LaShawn A. v. Dixon, 762 F.Supp. 959, 960, 986-87 (D.D.C.1991).

The district court reached the "inescapable conclusion" that the District's foster care system complied with neither "federal law, District law, [n]or, for those plaintiffs in the District's foster care, the United States Constitution." Id. at 960-61. The District's administration of its foster care system violated numerous provisions of the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-627 and §§ 670-679, and the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106. ¹ The Adoption Assistance Act, the court held, conferred upon the children rights that were privately enforceable under 42 U.S.C. § 1983, which the District had violated by depriving the children of those rights. 762 F.Supp. at 988-90. The district court also found that the District's operation of its foster care system violated numerous provisions of the District's own Prevention of Child Abuse and Neglect Act of 1977, D.C. Law 2-22 (Sept. 23, 1977) (codified as amended at D.C.CODE ANN. §§ 2-1351 to -1357, §§ 6-2101 to -2107, §§ 6-2121 to -2127, and §§ 16-2351 to -2365); the Youth Residential Facilities Licensure Act of 1986, D.C. Law 6-139 (Aug. 13, 1986) (codified as amended at D.C.CODE ANN. §§ 3-801 to -808); and the Child and Family Services Division Manual of Operations (Sept.1985). The District's obligations

Page 1392

[318 U.S.App.D.C. 383] under its own laws parallel the requirements of federal law; indeed the District law requirements are, in many respects, more stringent than those in the corresponding federal statutes. Analogizing the rights of children in foster care to rights of those involuntarily committed, LaShawn, 762 F.Supp. at 992, the district court ruled that the District's laws conferred liberty and property interests, protected under the Fifth Amendment, on the children in the custody of the District's foster care system, id. at 994, and that the District had violated § 1983 by depriving the children in foster care of these constitutionally protected interests. 762 F.Supp. at 998.

The parties worked out a remedial order to correct deficiencies in the District's administration of its foster care system, and the district court entered it.

In the remedial order, the District specifically reserved the right to appeal the district court's liability ruling. The District invoked that right almost immediately, contending before this court (1) that the district court erred in finding that the administration of the District's foster care system violated the Fifth Amendment, and (2) that the intervening decision in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), precluded any private cause of action under § 1983 or federal child welfare statutes. A unanimous panel of this court held, however, that it was unnecessary to reach those "complex constitutional and federal statutory issues." LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319, 1324 (D.C.Cir.1993) ("LaShawn I"), cert. denied, 510 U.S.1044, 114 S.Ct. 691, 126 L.Ed.2d 659 (1994). Under District law, children reported to have been abused or neglected had a private right of action to enforce the District's Prevention of Child Abuse and Neglect Act. Turner v. District of Columbia, 532 A.2d 662 (D.C.1987). Because a government owes greater duties toward those in its custody, the panel concluded that the children in the District's foster care system also had a private right of action under the Act. LaShawn I, 990 F.2d at 1325. In addition, the panel noted that the other District statute relied on by the children, the Youth Residential Facilities Licensure Act, explicitly provides these children with a private cause of action to sue under the Prevention of Child Abuse and Neglect Act. Id. at 1325-26. These statutes, the panel held, "provide[d] an independent basis for supporting the district court's judgment." Id. at 1326.

Accordingly, rather than reach the difficult constitutional and federal statutory questions, the LaShawn I panel remanded the case to the district court "with instructions to fashion an equally comprehensive order based entirely on District of Columbia law, if possible." Id. The panel explained that the District's statutory and regulatory scheme was "appropriately before us under our pendent jurisdiction," id. at 1324, and that federal judicial authority to decide the case on pendent grounds was "incontrovertible," id. at 1326.

The District sought rehearing from that decision. The panel denied the petition. LaShawn A. v. Dixon, No.91-7159 (D.C.Cir. Aug. 9, 1993). The District suggested rehearing in banc. It did not get the votes. LaShawn A. v. Dixon, No. 91-7159 (D.C.Cir. Aug. 9, 1993). The District asked the Supreme Court to review the decision. Its petition for writ of certiorari was denied. Kelly v. LaShawn A. ex rel. Moore, 510 U.S. 1044, 114 S.Ct. 691, 126 L.Ed.2d 659 (1994).

On remand, the district court sought to comply with the direction of LaShawn I by entering a modified remedial order based on local law. LaShawn A. v. Kelly, Civ. No. 89-1754 (D.D.C. Jan. 27, 1994). The District of Columbia appealed again, this time arguing that (1) under both the terms of the parties' agreement and general principles of contract law, the original remedial order should have been vacated because LaShawn I had "not affirmed" the district court's finding of liability under federal law, and (2) the modified remedial order was not "based on" local law as required by LaShawn I.

Rather than confront those issues, a divided panel of this court remanded the case to the district court to "re-examine" its exercise of pendent jurisdiction over the claims arising under local law. LaShawn A. v. Barry, 69 F.3d 556, 570 (D.C.Cir.1995) ("LaShawn II"), vacated and reh'g in banc granted, 74

Page 1393

[318 U.S.App.D.C. 384] F.3d 303 (D.C.Cir.1996). The LaShawn II majority acknowledged that LaShawn I explicitly decided that the district court had the "power" to exercise pendent jurisdiction under the first step of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). 69 F.3d at 560. The LaShawn II majority also acknowledged that the LaShawn I panel had decided--by necessary implication--that an exercise of pendent jurisdiction was appropriate under Gibbs step two. Id. Nonetheless, the LaShawn II majority concluded that it was free to revisit LaShawn I 's Gibbs step two decision because, it said, the law-of-the-case doctrine does not preclude reconsideration of "jurisdictional" questions decided but "not explicitly addressed" in a prior appeal. Id. at 562.

Upon the plaintiffs' suggestion, we granted rehearing in banc and vacated the judgment of the LaShawn II majority. LaShawn A. v. Barry, 74 F.3d 303 (D.C.Cir.1996). We then directed the parties to brief the following question:

Under either the law-of-the-case doctrine or law-of-the-circuit doctrine, did the decision in LaShawn I, 990 F.2d 1319 (D.C.Cir.1993), preclude the panel in LaShawn II, 69 F.3d 556 (D.C.Cir.1995), from considering whether the district court could properly exercise its jurisdiction under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)?

LaShawn A. v. Barry, No. 94-7044 (D.C.Cir. Feb. 9, 1996). We now answer that question in the affirmative.

II

Inconsistency is the antithesis of the rule of law. For judges, the most basic principle of jurisprudence is that " 'we must act alike in all cases of like nature.' " ² Two time-honored doctrines help put that principle into...