Lelsz v. Kavanagh
| Decision Date | 04 May 1987 |
| Docket Number | 86-1166,Nos. 85-2485,s. 85-2485 |
| Citation | 815 F.2d 1034 |
| Parties | John LELSZ, et al., Individually and on Behalf of all others similarly situated, Plaintiffs-Appellees, v. John J. KAVANAGH, M.D., et al., Defendants-Appellants, and Parent Association for the Retarded of Texas, Intervenor-Appellant. John LELSZ, By and Through his parents and guardians, Mr. and Mrs. John LELSZ, et al., Plaintiffs-Appellees, v. John J. KAVANAGH, M.D., Individually and as Supt. of Denton State School, and his successors in office, Defendant-Appellant, and Parents Association for the Retarded of Texas, Intervenor-Appellant, v. ASSOCIATION FOR RETARDED CITIZENS OF TEXAS and Advocacy, Inc., Intervenors- Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Philip Durst, Austin, Tex., for Kavanagh.
Paul M. Smith, Joel I. Klein, Washington, D.C., for Parent Ass'n in No. 85-2485.
David Ferleger, Barbara Hoffman, Philadelphia, Pa., for John Lelsz, Jr., et al.
Janice L. Green, Austin, Tex., David Shaw, Hartford, Conn., Rona Statman Austin, Tex., for Association for Retarded Citizens.
Diane Shisk, Austin, Tex., for Advocacy, Inc.
Paul Smith, Joel I. Klein, Washington, D.C., Toni Hunter, Asst. Atty. Gen., Austin, Tex., for Parents Ass'n in No. 86-1166.
Appeals from the United States District Court for the Eastern District of Texas, William Wayne Justice, Chief Judge.
Appeal from the United States District Court for the Northern District of Texas, Barefoot Sanders, District Judge.
Before WISDOM, DAVIS and JONES, Circuit Judges.
The application for rehearing is denied.
In vacating the order of June 5, 1985 and in nullifying portions of the 1983 consent order, we do not preclude the district court from enforcing the remaining portions of the consent decree if and when violations of those provisions are raised in the district court. We reiterate, however, that under Youngberg, mental patients have no federal right to a least restrictive living environment. Such a right is granted only by state law. Because Pennhurst prohibits a federal court from ordering a state to follow state law, we hold that the district court on remand may not enforce the consent decree in a way that requires the state to provide care to mental patients in the least restrictive environment. However, we do not decide what other remedy, if any, may be appropriate upon either the agreement of the parties or upon the district court's determination of federal law violations requiring further relief.
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.
The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Federal Rules of Appellate Procedure and Local Rule 35) the Suggestions for Rehearing En Banc are DENIED.
Although I am ineligible to participate in the Court's decision to grant or to deny a rehearing en banc, I wish to be recorded as dissenting to the panel's decision to deny a rehearing in this case. My reasons for dissenting are well expressed in Judge Reavley's able dissent.
I respectfully dissent from the en banc court's refusal to correct and clarify the panel opinion. The underlying error of the panel is its refusal to distinguish between rights and remedies. The parties entered into an agreement intended by them to remedy claims of violation of both federal and state law. The district court approved that agreement and entered the according consent decree. The panel isolates one part of the order and strikes it down on the ground that the remedy called for by this particular provision could not now be required if it were sought as an initial claim of right solely under federal constitutional or statutory law. The panel's only justification for doing so is that the Eleventh Amendment denies the federal court jurisdiction to approve and order such relief, and the panel cites as its only authority the Supreme Court's decision in Pennhurst State School v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
Pennhurst neither addresses nor changes prior law on the jurisdiction of federal courts to order remedies for federal law violations, and it does not address federal court jurisdiction to approve an agreed remedy for mixed violations of federal and state law. In Pennhurst the only question was the jurisdiction of the district court in a contested case to enter a judgment solely on the ground that the defendants had violated Pennsylvania law. Indeed, the Supreme Court remanded the case to the court of appeals for the latter to determine if federal rights were also involved. If the present appeal concerned defendants' attempt to withdraw from the 1983 agreement, or to modify it on the ground of mistake of law, Pennhurst might have some bearing; but Pennhurst has been badly misapplied in this panel decision.
The panel does not find an abuse of discretion by the trial court. It does not vacate the 1985 order because the judge accepted the professional opinions of plaintiffs' expert witnesses in contravention of Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Instead, the panel squarely holds that the federal court has no jurisdiction to enforce a portion of the consent decree or to remedy any violation of the consent decree by ordering community placement, or presumably any less restrictive placement, of class members.
This suit was initiated by a complaint that charged five counts of violations of federal law. Representing the defendants, the Attorney General of the State of Texas avoided trial by agreeing with the plaintiffs that the issues of the litigation would be resolved by their agreement. The parties expressly stated that the provisions of the agreement were "intended to permanently secure the right to safety and protection from harm for members of the plaintiff class under the Fourteenth Amendment to the United States Constitution"--and also to secure other constitutional rights and the rights under other federal statutes as well as their rights under the state law.
The panel opinion separates the provisions in the remedial decree relating to ...
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