Pearson, In re

Decision Date04 January 1993
Docket NumberNo. 92-2158,92-2158
Citation990 F.2d 653
PartiesIn re Donald PEARSON, et al., Petitioners. . Heard
CourtU.S. Court of Appeals — First Circuit

David R. Geiger, with whom Joseph D. Halpern, Michele A. Whitham, Sarah Burgess Reed, and Foley, Hoag & Eliot, Boston, MA, were on brief, for petitioners.

William L. Pardee, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, MA, was on brief, for respondents.

Before BREYER, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Petitioners seek a writ of mandamus which, if granted, will halt the district court's nascent efforts to probe the continuing need for, or the possible modification of, consent decrees affecting the operation of a state institution, the Massachusetts Treatment Center for Sexually Dangerous Persons (the Treatment Center). Because petitioners cannot satisfy the strict prerequisites for extraordinary relief by way of mandamus, we dismiss the petition.


The United States District Court for the District of Massachusetts has been involved with the Treatment Center for more than two decades. In 1974, the district court entered a consent decree and supplemental consent decree in the case of King v. Greenblatt. 1 The decrees placed the Treatment Center under the primary authority of the Massachusetts Department of Mental Health and obligated the department to operate the facility in accordance with certain standards. The district court specifically retained the right to amend the King decrees in the future.

Although the original plaintiff, King, soon left the Treatment Center, other residents took up the cudgels. Over time, inmates brought a variety of suits to enforce the decrees. The stream of litigation occasionally overflowed the district court. See, e.g., Pearson v. Fair, 935 F.2d 401 (1st Cir.1991) (Pearson II); Langton v. Johnston, 928 F.2d 1206 (1st Cir.1991); Pearson v. Fair, 808 F.2d 163 (1st Cir.1986) (per curiam) (Pearson I ). The petitioners, all of whom were originally inmates of the Treatment Center and at least one of whom still resides there, have been at the eye of the storm. In the early 1980s, they brought an action to enforce the King decrees, see Pearson I, 808 F.2d at 165, and subsequently survived the Commonwealth's challenge to their alleged lack of standing. See Pearson II, 935 F.2d at 404 n. 4. Moreover, in 1988, the petitioners intervened in the King case and fended off the Commonwealth's motion to vacate the judgment therein.

The continuing saga of the federal courts' involvement with the Treatment Center took a new turn in 1992 when the district court, acting on its own initiative and without providing advance notice, appointed a special master to analyze "the impact of existing and pending legislation on the consent decrees" and on "the operation of the Treatment Center"; to study all unresolved claims alleging violations of the consent decrees; and to advise the court concerning the Treatment Center's operation and the continued viability of the King decrees. 2

The petitioners learned of this initiative after the fact. They did not take kindly to it. When the district court refused to alter its stance, the petitioners headed for the court of appeals. In this forum, they ask for mandamus, asserting that the lower court lacked jurisdiction to appoint a master because King was dead, juridically if not literally, and because neither side was currently seeking, or had recently sought, modification of the King decrees. Petitioners also assert a host of other challenges to the entry of the order and to its scope.


Congress has authorized the federal courts to issue prerogative writs which are "necessary or appropriate in aid of their respective jurisdictions." 28 U.S.C. § 1651(a) (1988). As the Court recently reminded us, a traditional use of prerogative writs has been to confine inferior courts to the lawful exercise of their prescribed jurisdiction or compel them to exercise their authority when duty demands. See Mallard v. United States Dist. Court, 490 U.S. 296, 308, 109 S.Ct. 1814, 1821, 104 L.Ed.2d 318 (1989) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). This use is customarily accomplished by means of mandamus or prohibition (terms which we employ interchangeably in this opinion). Such writs afford a mechanism for immediate correction of acts or omissions amounting to an "usurpation of power." De Beers Consolid. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945).

Prerogative writs are drastic remedies which have the potential, if overexercised, "to spawn piecemeal litigation and disrupt the orderly processes of the justice system." In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir.1988). Thus, mandamus must be used sparingly and only in extraordinary situations. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980) (per curiam); Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 280, 19 L.Ed.2d 305 (1967); In re Insurers Syndicate, 864 F.2d 208, 211 (1st Cir.1988); see also Boreri v. Fiat S.p.A., 763 F.2d 17, 26 (1st Cir.1985) (warning that the writ's "currency is not profligately to be spent").

To ensure that the writ's use is appropriately rationed, we have, for the most part, 3 insisted that a writ-seeker limn "some special risk of irreparable harm," together with "clear entitlement to the relief requested." Recticel, 859 F.2d at 1005; accord In re Bushkin Assocs., Inc., 864 F.2d 241, 243 (1st Cir.1989); In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 20 (1st Cir.1982). 4 On the former prong, the petitioner "must ordinarily demonstrate that something about the order, or its circumstances, would make an end-of-case appeal ineffectual or leave legitimate interests unduly at risk." Recticel, 859 F.2d at 1005-06; accord United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir.1979). On the latter prong, the petitioner must usually establish a "clear and indisputable" right to the requested relief, Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) (quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899)), or, in other words, that the challenged order is palpably erroneous. See supra note 4. This dichotomous standard is sufficiently stringent that "[i]nterlocutory procedural orders ... rarely will satisfy th[e] precondition for mandamus relief." Recticel, 859 F.2d at 1006. Nonetheless, a district court's appointment of a master may be so far afield, and the potential for mischief so great in a particular situation, that immediate relief by way of mandamus is warranted. See, e.g., La Buy v. Howes Leather Co., 352 U.S. 249, 256, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957); National Org. for the Reform of Marijuana Laws (NORML) v. Mullen, 828 F.2d 536, 541-42 (9th Cir.1987).


Because petitioners' variegated challenges reflect neither a special risk of significant harm nor palpable error attributable to the judge's interlocutory order, mandamus is not justified. For ease in presentation, we discuss these points in reverse order.

A. Presence of Palpable Error.

The petitioners have failed to demonstrate that the district court lapsed into palpable error or, stated another way, that they are clearly entitled to the relief requested. To explain why this is so, we deal extensively with petitioners' main "case or controversy" approach and then consider their other asseverations in a group.

1. The Case or Controversy Requirement. Petitioners strive to convince us that, at the time the district court appointed the master, no justiciable case or controversy existed; and that, therefore, the court's order plainly outstripped its jurisdiction. Petitioners' exhortation has two strands. We find neither strand persuasive.


The first strand might be subtitled: "On the Death of King." Petitioners suggest that King was a "dead case" which the district court improperly resurrected. Whatever this morbid metaphor may mean, it misses the mark. The entry of a consent decree does not "kill" a case or terminate a district court's jurisdiction. Rather, when, as now, an injunction entered pursuant to a consent decree has ongoing effects, the issuing court retains authority to enforce it. See, e.g., System Fed'n No. 91, Etc. v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961) (explaining that structural injunctions "often require[ ] continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained th[e] equitable relief"). By the same token, a court retains authority to modify or interpret such decrees in light of changed circumstances. See, e.g., id. at 646-47, 81 S.Ct. at 370-71; United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462-63, 76 L.Ed. 999 (1932). This authority is part of a court's inherent powers and exists regardless of whether a particular consent decree expressly so provides. 5 See Swift, 286 U.S. at 114, 52 S.Ct. at 462; see also Fed.R.Civ.P. 60(b)(5)-(6).

Since a district court has power to modify a consent decree, it is impossible to say that the court below acted "in clear excess" of its power, In re Justices, 695 F.2d at 21, in taking the much more tentative step of appointing a master to investigate the possibility of modifying the decree. See Chicago Housing Auth. v. Austin, 511 F.2d 82, 83 (7th Cir.1975) (raising no question as to jurisdiction in such a context). In other words, nothing about the lower court's raising of a moistened finger to test the winds implicated jurisdictional concerns.

To be sure, petitioners place great emphasis on the fact that the original plaintiff, King himself, no longer...

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