Martinez v. Mathews

• Decision Date: 28 December 1976
• Docket Number: No. 76-1794,76-1794
• Parties: Luis MARTINEZ et al., Plaintiffs-Appellants, v. F. David MATHEWS, Secretary of Health, Education and Welfare, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1233

544 F.2d 1233

Luis MARTINEZ et al., Plaintiffs-Appellants, v. F. David MATHEWS, Secretary of Health, Education and Welfare, et al., Defendants-Appellees.

No. 76-1794.

United States Court of Appeals Fifth Circuit.

Dec. 28, 1976.

Suanne Pierce, Michael R. Masinter, Homestead, Fla., for plaintiffs-appellants.

Sanford F. Dernis, Miami, Fla., for Rice, and others.

Lewis Polansky, Reg. Counsel, Dept. of HEW, Atlanta, Ga., John Steven Berk, Asst. U.S. Atty., Miami, Fla., Leland B. Ware, Atty., Dept. of HEW, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, TUTTLE and TJOFLAT, Circuit Judges:

TUTTLE, Circuit Judge:

This is an action asserting the failure of a provider of health services for migrant and seasonal farmworkers and their families to comply with the Migrant Health Act's requirement that individuals being served by the center comprise a majority of the provider's "governing board," 42 U.S.C.A. § 247d(f)(2)(G) (1976). Appellants, plaintiffs below, are migrant or seasonal farmworkers, or wives of such workers, and represent themselves and the class of those similarly situated. They filed suit on May 5, 1975 against Community Health of South Dade, Inc., (hereinafter CHI), which is a grantee of migrant health funds under section 247d. ¹

It does not appear that board members have, at any time during this litigation, been selected under rules that required a majority to consist of representatives of migrant or seasonal farmworkers or members of their families, nor has CHI contended that its board possesses such a farmworker majority. Plaintiffs contend that CHI has violated the statute. CHI, however, argues variously that the governing board requirements have not been breached or are not yet applicable.

Our disposition of the case is complicated by the lengthy procedural course already run in the case, and by the narrow procedural setting of this appeal. Plaintiffs' original complaint sought declaratory and injunctive relief based both on the alleged noncompliance with the governing board requirement, and on allegations that CHI unlawfully used migrant funds for health care and administrative costs not attributable to eligible farmworkers or their families. Besides asking for an accounting, court costs, and attorneys' fees, plaintiffs urged the Court to order CHI both to establish the requisite permanent board and also to establish an interim board. On the day their complaint was filed, plaintiffs also moved for a preliminary injunction, which would have required immediate establishment of an interim board, and suggested a plan which would have required election of the farmworker members of this board in June 1975. On May 27, 1975, the lower court denied the preliminary injunction, but ordered the government defendants and CHI to "require that a policy board be established and the membership of that board chosen no later than . . . November, 1975" in accordance with the then applicable HEW regulation. An Ad Hoc Task Force, set up earlier by the Comprehensive Health Planning Council of South Florida, Inc., worked to formulate a plan for the selection of a board complying with the migrant health regulations, 42 C.F.R. § 56.105 (1975) (deleted and new regulations substituted 41 Fed.Reg. 38889 (1976)). The Task Force and plaintiffs agreed that the peak of the migrant season is in January, and on July 16, 1975 all parties stipulated to an extension of the earlier order's deadline to January 1976. ²

Then, on November 21, 1975, CHI filed a petition "for emergency relief and order staying election." A major ground for this motion was that CHI had only recently been informed by HEW that the 1975 amendments to the Public Health Service Act would now be applicable to it. (The new amendments, whose impact is discussed later in this opinion, altered the governing board requirements). Besides its apparent argument that the dictates of the new law were uncertain, CHI was disturbed by the possibility of multiple elections, and also restated its concern that all groups actually served by CHI be represented on its board. HEW joined in CHI's petition (though without concurring in the CHI "concern" just mentioned). Over plaintiffs' opposition, the court below granted the petition for emergency relief on January 9, 1976, declaring void any selection procedures followed pursuant to its earlier order. In its order, the court required the defendants to "effectuate a selection process" to be completed no later than April 15, 1976, to obtain a policy board in compliance with the new amendments. The court also ordered the parties to confer and, with the advice of the HEW General Counsel, agree to a selection process. If unable to agree by February 9, 1976, the parties were instructed to seek from the court additional relief to assure compliance by April 15, 1976.

The next step was a February 11, 1976 motion filed jointly by plaintiffs and HEW, asking the court to order CHI to forthwith implement a proposed election plan. One day earlier, CHI's board had refused to accept a plan agreed to by plaintiffs and HEW. The trial court held a hearing on February 19, and on March 10 issued the order which plaintiffs challenge in this appeal. This order mandated the election of an "interim board . . . to serve on . . . CHI's Board of Directors until the annual election in November of 1976." Ten migratory and seasonal farmworkers were to be elected on April 4, 1976 and added to the then existing board. In issuing this order, the court chose a solution already embodied in by-laws adopted by CHI on February 10, pursuant to which the existing board (evidently consisting of sixteen members) was to be augmented with ten farmworkers (and seven "non-migratory and seasonal agricultural workers.") The farmworker election was held on April 4, 1976. ³

Further complicating the procedural picture is the absence of any final judgment as yet. On December 31, 1975, CHI filed a motion for summary judgment. HEW filed its motion for summary judgment on January 5, 1976. The February 19 hearing, which dealt with the joint motion of plaintiffs and HEW for implementation of the election plan, was also to consider CHI's motion for summary judgment. On February 23, 1976, plaintiffs also sought partial summary judgment, on the governing board issue. So far as the record reveals, no order has been issued on any of these motions for summary judgment.

I. Jurisdiction and the Scope of Review

It is clear that the appeal before us is an interlocutory one. (Indeed, a trial date had been set for late November, but this date has since been cancelled and the case transferred to another district Judge). Our jurisdiction to hear the appeal is not thereby impaired, ⁴ for the lower court's March 10 order that an interim board be elected is properly appealable under 28 U.S.C.A. § 1292(a)(1) (1966). The order is not styled as injunctive relief, but in the classification of an order as an injunction, the essential effect and character of an order, rather than the terminology applied to it, are decisive. See McCoy v. Louisiana State Bd. of Educ., 345 F.2d 720, 721 (5th Cir. 1965) (per curiam ); cf. 7B Moore's Federal Practice ch. 83, at JC-422 (2d ed. 1976). Whether characterized as a denial of a mandatory injunction (which would have ordered the election plaintiffs sought), or as a modification of a mandatory injunction effectively imposed by the court's previous order of January 9, 1976, this order is therefore appealable.

CHI asserts, however, that the appeal is moot. It is not contended, of course, that there is no active controversy between plaintiffs and CHI. ⁵ But when suit was filed, the applicable law was 42 U.S.C.A. § 247d (1974) and CHI argues that the provisions of the old law are without legal effect. On July 29, 1975, section 247d was thoroughly revised by Title IV, section 401(a) of the Special Health Revenue Sharing Act of 1975, Pub.L. No. 94-63, 89 Stat. 304, 334-41 (codified at 42 U.S.C.A. § 247d (1976)). Whatever the impact of this amendment upon grants for the fiscal year which began July 1, 1975, it is clear that grants for the present fiscal year must be governed by the new law. But the change in the applicable law does not moot the case. Rather, even when the events of a case transpire before such a change in the law, the rule is that if the new law takes effect in the course of a lawsuit, the action can be adjudicated according to the new provisions, unless to do so might produce "manifest injustice." See Bradley v. School Bd. of Richmond, 416 U.S. 696, 714-17, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281-83, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). Here, in any event, our decision need only apply to events the continued use of migrant funds by CHI occurring after the new law's enactment. Moreover, the record below indicates that as early as its order of January 9, 1976, the trial court viewed the new provisions as the relevant law (though its view may later have changed).

Our action in this case could be more seriously constrained by the fact that various aspects of plaintiffs' theories supporting entitlement under the new law apparently have not been previously presented to the lower court. It is frequently said that appellate courts should not consider issues raised for the first time on appeal. See, e. g., Guerra v. Manchester Terminal Corp.,498 F.2d 641, 658 n. 4 (5th Cir. 1974). But even if this rule is pertinent here, it can give way when a pure question of law is involved and a refusal to consider it would result in a miscarriage of justice. Evans v. Triple R Welding & Oil Field Maintenance Corp., 472 F.2d 713 (5th Cir. 1973). Plaintiffs here have now pursued their claim for an 18-month-period time enough for migrants, dispersing from the South Dade area when suit was filed, to return...