Twelve John Does v. District of Columbia

• Decision Date: 01 July 1997
• Docket Number: Nos. 96-5089,96-5106 and 96-5107,s. 96-5089
• Citation: 117 F.3d 571,326 U.S.App. D.C. 17
• Parties: , 37 Fed.R.Serv.3d 1136 TWELVE JOHN DOES, et al., Appellees, v. DISTRICT OF COLUMBIA, et al., Appellants/Cross-Appellees, Nathaniel McQueen, et al., Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 571

117 F.3d 571

326 U.S.App.D.C. 17, 37 Fed.R.Serv.3d 1136

TWELVE JOHN DOES, et al., Appellees, v. DISTRICT OF COLUMBIA, et al., Appellants/Cross-Appellees, Nathaniel McQueen, et al., Appellees/Cross-Appellants.

Nos. 96-5089, 96-5106 and 96-5107.

United States Court of Appeals, District of Columbia Circuit.

Argued May 14, 1997.

Decided July 1, 1997.

Appeals from the United States District Court for the District of Columbia (No. 80cv02136).

Mary L. Wilson, Assistant Corporation Counsel, Washington, DC, argued the cause for the District of Columbia, et al. With her on the briefs were Jo Anne Robinson, Acting Principal Deputy, Charles L. Reischel, Deputy Corporation Counsel, and Richard Love, Counsel.

Kemi Morten, Washington, DC, argued the cause for appellants Nathaniel McQueen, et al. With her on the brief was Brian Lederer.

Alan A. Pemberton, Washington, DC, argued the cause for appellees Twelve John Does. With him on the brief were Peter J. Nickles and Michael S. Labson.

Before WILLIAMS, GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

These appeals all arise out of a consent decree entered in 1982 and intended to resolve a suit initially filed in 1979 and refiled later as a class action. The suit sought broad changes in living conditions at the Central Facility at the District of Columbia's prison in Lorton, Virginia. It was one of a number of class actions brought on behalf of prisoners at different Lorton facilities. For a brief description, see Twelve John Does v. District of Columbia, 841 F.2d 1133, 1134-36 (D.C.Cir.1988).

After the District was exposed to the risk of heavy contempt fines for alleged violations of the 1982 decree, it and the lawyers for the plaintiff class negotiated a settlement under which some of the fines would be held in abeyance and ultimately returned if the District met certain staffing levels at Central. After learning of the proposed settlement, six prisoners at Central filed pro se motions in district court, styled motions for a temporary restraining order and a preliminary injunction. Specifically, the motions asked the court to oust class counsel and to substitute therefor Kemi Morten (who later entered an appearance for the dissident inmates), to appoint a receiver to run Central, and to grant a protective order against retaliation. Besides being a lawyer, Morten is executive director of a substance abuse treatment program known as Unfoldment, which once operated at Central.

The court denied the T.R.O. On December 5, 1995 it held a hearing on the preliminary injunction, and Morten represented to the district court that her clients were supported by 1,100 of 1,300 inmates at Central, as evidenced by petitions circulated and signed by the inmates during the month of November after the filing of the motions. The petitions identified the six movant prisoners as representatives of the "Blacktop Coalition," and asked for relief akin to that sought in the motions, plus restoration of the Unfoldment program. Together with some of the dissident inmates themselves, Morten argued for the self-styled motion for a preliminary injunction, proposing broad changes in conditions at Central, some with only limited reference to the Twelve John Does consent decree. She also asked that the dissidents' motion be considered one to intervene in the class action as a subclass, arguing that class counsel and the plaintiffs' committee, the Twelve John Does, no longer adequately represented the inmates' interests.

At the end of the hearing the district court observed that class counsel had said that the Blacktop representatives "will be added to the group who customarily meet with [class counsel], and that is what the court is granting today, and that is all the court is granting today." Asked by Morten about the motion to intervene as a subclass, the court said, "No, denied." In an order filed the next day, the district court formalized its disposition of the motions. Noting that the "motion for a preliminary injunction" was in reality a motion for substitution of counsel and appointment of a receiver, the court denied it, expressing doubt that the signers of the petition were fully informed of the limited nature of the pending case and stating, "In the 15 years since this case began, the Court has had the opportunity to observe the level of representation provided by [class counsel] and is satisfied that the class is receiving legal representation of the highest quality." Order, Twelve John Does v. District of Columbia, Civ. Action No. 80-2136 (D.D.C. December 6, 1995) ("December 6, 1995 Order") at 3. The court also reiterated its oral denial of the six dissidents' motion to intervene as a subclass, finding that the "class is receiving quality representation; that class counsel listens to and communicates with members of the class and advocates zealously for the class." Id. at 4. The court rejected the notion that class counsel had in any way slacked in pursuit of contempt findings where appropriate, and also said, apropos the dissident inmates' substantive claims, "While inmates have been important to enforcement of the consent decree through reporting to the special officer and to class counsel, many of the concerns stated by the petitioners at the hearing on this matter are not properly a part of the consent decree." Id.

The district court also granted the six dissidents' request for a protective order, of which there had been no mention at the oral hearing. See id. at 5.

Both the dissidents and the District moved for reconsideration of the December 6, 1995 Order. The dissidents renewed their request for the relief they had sought but not attained, and the District sought to overturn the one item the dissidents had secured, the protective order. The court denied both motions in an order filed March 4, 1996. Twelve John Does v. District of Columbia, Civ. Action No. 80-2136 (D.D.C. March 4, 1996) ("March 4, 1996 Order").

In the meantime, class counsel and the District worked out their resolution of the looming contempt issues, and on February 26, 1996 the court entered a consent order reflecting that agreement. Twelve John Does v. District of Columbia, Civ. Action No. 80-2136 (D.D.C. February 26, 1996) ("February 26, 1996 Consent Order"). The dissident prisoners filed a notice of appeal from the entry of the order, which the district court struck on the grounds that they were not parties.

From this tangle of events we have before us three appeals. (1) In No. 96-5106, the dissident prisoners challenge the district court's denial of their motion for reconsideration of its earlier denial of the bulk of the relief they had sought. (2) In No. 96-5107, the dissident prisoners appeal the district court's order striking their notice of appeal of the February 26, 1996 Consent Order. (3) In No. 96-5089, the District of Columbia appeals the court's grant of the protective order and the denial of its motion for reconsideration.

We affirm in Nos. 96-5106 and 96-5107 and reverse in No. 96-5089.

I. The Prisoner Appeals, Nos. 96-5106 and 96-5107

Class counsel argue that these appeals are barred by a prior decision of this court and are in any event moot. The claim of bar arises from our disposition of an appeal from the court's initial order denying the moving prisoners' motions--recall that in No. 96-5106 they appeal from the district court's denial of the motion for reconsideration of that order. In the earlier appeal the prisoners obscurely raised the issue of the denial of their motion to intervene, and in an unpublished order, Nathaniel El McQueen v. District of Columbia, 1996 WL 453633, No. 96-5003 (D.C.Cir. July 18, 1996), reh'g denied, (D.C.Cir. Sept. 6, 1996), which focussed on the challenge to class counsel and did not mention the intervention issue, we dismissed the appeal for want of a final judgment. The direct appeal from the district court's order denying the prisoners' motion having been ruled interlocutory, class counsel say that this disposes of both appeals. It eliminates No. 96-5106 because that appeal at best replicates the dismissed appeal from the initial order; it eliminates No. 96-5107 because if the dissident prisoners are without party status, the district court was clearly right to strike their notice of appeal.

We need not examine whether the case might fall within one of the exceptions to the doctrine of the law of the case. See LaShawn v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (noting limited character of exceptions). Compare Brotherhood of Railroad Trainmen v. B & O R Co., 331 U.S. 519, 524-25, 531-32, 67 S.Ct. 1387, 1389-90, 1393, 91 L.Ed. 1646 (1947) (denial of intervention immediately appealable where intervention as of right is sought). The Sixth Circuit has held that where members of a class have unsuccessfully sought to intervene separately but have not appealed the denial, and later seek to appeal a final order, they are entitled to raise the intervention issue on appeal from the final order (even though, by hypothesis, they have not yet acquired party status). Shults v. Champion International Corp., 35 F.3d 1056, 1059-61 (6th Cir.1994). See also Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (non-parties adversely affected by consent decree approving settlement should "seek intervention for purposes of appeal; denials of such motions are, of course, appealable"). We need not consider whether we would adopt the Shults approach for a would-be intervenor that had failed to avail itself of an available opportunity for appeal. Where, as here, the would-be intervenors had no earlier opportunity for appeal, they should be able to raise the supposed error in the denial of intervention simultaneously with their appeal of the later appealable order whose imminent entry was precisely the occasion for their intervention effort....