U.S. v. Elrod

• Decision Date: 04 August 1980
• Docket Number: No. 79-1394,79-1394
• Citation: 627 F.2d 813
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard ELROD, Sheriff, Cook County, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 813

627 F.2d 813

UNITED STATES of America, Plaintiff-Appellant, v. Richard ELROD, Sheriff, Cook County, et al., Defendants-Appellees.

No. 79-1394.

United States Court of Appeals Seventh Circuit.

Argued Nov. 1, 1979.

Decided Aug. 4, 1980.

Dennis J. Dimsey, Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Ellen G. Robinson, Chicago, Ill, for defendants-appellees.

Before WOOD and CUDAHY, Circuit Judges and GRANT, Senior District judge. ^*

CUDAHY, Circuit Judge.

Two distinct issues, relating to separate claims are presented for resolution on this appeal. The first issue is whether the district court properly invoked the doctrine of primary jurisdiction to stay proceedings on a claim by the United States alleging noncompliance by Cook County, Illinois corrections officials with conditions of grants from the Law Enforcement Assistance Administration (LEAA), pending completion of administrative proceedings by LEAA pursuant to 42 U.S.C. § 3757. ¹ The second issue is whether the United States has standing to bring an action to vindicate the Eighth and Fourteenth Amendment rights of inmates at the Cook County Department of Corrections (the "inmates"). We hold that the district court's invocation of the doctrine of primary jurisdiction with respect to the government's contractual claim was in error and we remand the question of the government's standing to litigate the inmates' Eighth and Fourteenth Amendment rights to the district court in light of the recently enacted "Civil Rights of Institutionalized Persons Act", Pub.L. No. 96-247 (1980).

I.

There has been no trial on the merits or other evidentiary hearing in this case, and the basic facts relevant to this appeal are essentially undisputed. The underlying subject of the lawsuit is the Cook County Department of Corrections, a detention facility owned and operated by Cook County, Illinois, principally for the housing of persons awaiting trial in the criminal courts of Cook County. The Department of Corrections has the capacity to hold more than 5,000 persons at a time, and approximately 60,000 persons are incarcerated there each year. Over the years, the Department has applied for and received federal funds from LEAA, pursuant to 42 U.S.C. § 3701 et seq. Those funds have been used for the construction of correctional facilities and the implementation of correctional programs.

The United States' original complaint in this action, filed December 29, 1976, alleged that conditions at the Department of Corrections, including overcrowding, inadequate sanitation and inadequate visitation opportunities, constituted systemic violations of the Eighth and Fourteenth Amendment rights of individuals incarcerated there. Named as defendants in the complaint were the sheriff of Cook County, the Executive Director of the Cook County Department of Corrections, the President and members of the Cook County Board of Commissioners, the Director of the Illinois Department of Corrections and the State of Illinois. ² The defendants were alleged to exercise various responsibilities over the operation and administration of Cook County's correctional facilities.

The defendants subsequently moved to dismiss the complaint on the ground, inter alia, that, in the absence of express statutory authority, the United States lacked standing to bring an action to vindicate the Eighth and Fourteenth Amendment rights of third persons. The district court expressed an initial view that the United States was without authority to bring this type of suit, but held its final ruling on the motion to dismiss in abeyance pending appeal to the Fourth Circuit of United States v. Solomon, 419 F.Supp. 358 (D.Md.1976), another case involving the United States' standing to bring civil rights actions. The district court also gave the United States leave to amend its complaint in order to plead facts sufficient to state a claim upon which relief could be granted.

On October 12, 1977, the Fourth Circuit ruled that the United States was without standing to bring a Fourteenth Amendment action on behalf of patients in state mental hospitals. United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). Soon thereafter, on November 10, 1977, the government filed an amended complaint in this action. The amended complaint contained the original and two new constitutional claims for relief, ³ and added claims for breach of the contractual conditions pursuant to which Cook County had received construction funds from LEAA, and claims alleging that inmates were being housed on the basis of race in violation of 42 U.S.C. § 3766. The defendants again moved for dismissal on various grounds. By order of January 26, 1979, the district court, relying primarily on the Fourth Circuit's decision in Solomon, dismissed the constitutional claims asserted by the United States. It reaffirmed its earlier view that, in the absence of specific statutory authority, the United States lacked standing to sue to redress alleged deprivations of Eighth and Fourteenth Amendment rights of third persons. The district court also decided to stay proceedings on the government's contractual claims, ordering that those claims initially be adjudicated in administrative proceedings, which the government was directed to bring before LEAA pursuant to 42 U.S.C. § 3757. As to the allegations of racial discrimination, the court ruled that the United States had successfully stated a cause of action. Finding no just reason for delay, the court stated that its order, insofar as it disposed of the contractual and constitutional claims, would constitute a final judgment under Fed.R.Civ.P. 54(b).

The United States then appealed the district court's stay of its contractual claim and dismissal of its constitutional claim to this court. We address those actions in turn.

II.

A. Appealability

We address as a threshold issue the question whether the primary jurisdiction stay entered as to the government's contractual claim is a final order vesting this court with appellate jurisdiction. 28 U.S.C. § 1291. It is well established in this circuit that abstention stays, issued in contemplation of the initiation of proceedings in the state courts, are appealable orders. Miller-Davis Co. v. Illinois State Toll Highway Authority, 567 F.2d 323, 325 (7th Cir. 1977); Vickers v. Trainor, 546 F.2d 739, 741 (7th Cir. 1976); Drexler v. Southwest Dubois School Corporation, 504 F.2d 836, 838 (7th Cir. 1974) (en banc); but see Calvert Fire Insurance Co. v. Honorable Hubert L. Will, 560 F.2d 792 (7th Cir. 1977), rev'd, 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978). Defendants contend, however, that an abstention stay, or at least the one issued in Drexler, supra, is of a different genre than the sort of "primary jurisdiction" stay issued in this case, because the Drexler stay involved "hotly contested" legal issues not implicated here. But we fail to see how the warmth of the legal disagreement in Drexler in any way vitiates that case's precedential value. Moreover, defendants have not suggested that the mercury was rising uncontrollably in Miller-Davis or Vickers, cited above, in which this court also held abstention stays to be appealable orders.

The stay issued below, expressly denominated a final judgment by the district court pursuant to Fed.R.Civ.P. 54(b), has put the government "effectively out of court". Idlewild Bon Voyage Liquor Corporation v. Epstein, 370 U.S. 713, 715 n. 2, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962). We thus consider it to be an appealable order. Drexler v. Southwest Dubois School Corporation, supra.

B. Primary Jurisdiction

The doctrine of primary jurisdiction, invoked sua sponte by the court below to stay the government's contractual claim, "determines whether the federal court will refrain from exercising its unquestioned jurisdiction over a dispute until after an administrative agency has resolved some question arising in the proceeding before the court. It represents a recognition of the need for an orderly coordination between the functions of court and agency in securing the objectives of their often overlapping competency." Interstate Commerce Commission v. All-American, Inc., 505 F.2d 1360, 1362 (7th Cir. 1974). The doctrine, first enunciated by the Supreme Court in Texas & Pacific Railway v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907), was refined and developed in later decisions. "(I)n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over." Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). Similarly, the Supreme Court remarked in United States v. Western Pacific Railroad Co., 352 U.S. 59, 64-65, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956), that "(p)rimary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body . . . ."

In determining the doctrine's applicability to a particular dispute, "the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application." Ibid. We are unpersuaded that those purposes will be furthered by invocation of the doctrine here. The principal reason that referral of the government's contractual claim to LEAA would be inefficacious is that the agency is itself a plaintiff in the instant case by virtue of its statutorily subordinate status to the United States Attorney General, who instituted the action. See 42 U.S.C. § 3711(a). As this court previously observed in Interstate Commerce Commission v. All-American, Inc., 7th Cir., 505...