FRIENDLY, Circuit Judge:
The present appeal and a companion case, Docket No. 82-7531, are the latest in a long series of decisions
I. FACTUAL BACKGROUND
At the commencement of the action, the resident population of Willowbrook was 5,700, or 65% over its official capacity, reduced from a peak of 6,200 in 1969, and the facility's overcrowding, understaffing, and physical squalor amounted to what one state defendant admitted was a "major tragedy", NYSARC v. Carey, 596 F.2d 27, 29-30 (2 Cir.), cert. denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979). On April 10, 1973, after five days of hearings and a personal inspection of Willowbrook, the late Judge Orrin G. Judd held that state officials had violated plaintiffs' constitutional right to protection from harm in a state institution, 357 F.Supp. 752, 764-65, and granted preliminary relief ordering immediate hiring of additional staff and improvement of conditions to attain minimal standards of health and safety, id. at 768-69. Subsequently plaintiffs, joined by the United States Department of Justice as amicus curiae, moved to have several state officials held in contempt. Settlement negotiations were pursued during a trial on the issue of noncompliance in late 1974 and were resumed in 1975 under a new state administration. These led to the Consent Judgment of April 30, 1975, which Judge Judd approved, 393 F.Supp. 715.
The 1975 Consent Judgment, reproduced at 1 Mental Disability L.Rep. 58 (1976), specified "steps, standards and procedures necessary to secure the constitutional right to protection from harm" for members of plaintiff class, including reduction of Willowbrook's resident population to 250, all remaining residents to be from Staten Island homes,
The Consent Judgment ordered that the plaintiff class be provided with "the least restrictive and most normal living conditions possible". Consent Judgment, Appendix A at 1. Included among the requirements implementing this standard were provisions for "clean, adequate and seasonally appropriate clothing", "accessible, private and easily usable toilets and bathing facilities", and "clean, odorless, and insect-free" living quarters. Id. at 1-2. Residents were to receive individualized care, opportunities for education and recreation, and adequate medical services. Id. at 5-16. Restrictions were placed on use of physical restraints, experimentation on residents, and exaction of residents' labor for the upkeep of the institution. Id. at 17-19.
Reduction of Willowbrook's population from 5700 to 250 was to be achieved by relocation of its residents to "community placements" designed "to ready each resident, with due regard for his or her own disabilities and with full appreciation for his or her own capabilities for development, for life in the community at large." Id. at 28. A "community placement" was defined in the Consent Judgment as
Id. at 27. This restriction placed on the size of community placements, which we shall call for simplicity's sake the "15 bed/10 bed limitation", would contribute to the "normalization" of the lives of plaintiff class members by approximating as nearly as possible the housing situations of non-retarded children and adults.
The road to compliance has not been easy and has by no means reached its end.
In one such enforcement proceeding, the Willowbrook Review Panel recommended on May 24, 1979, that in order to comply with the Consent Judgment, the defendants should provide a group of multiply handicapped class members transferred to Flower Fifth Avenue Hospital (Flower Hospital) with "community placements" of no more than three beds each. Defendants refused to implement the recommendation unless a court order compelled them to do so. After an evidentiary hearing, "the parties having agreed in open court on September 11, 1979, to a resolution of said issue," the court ordered that the Flower Hospital group be placed in residential facilities of six beds or less, with the more severely disabled half of this group placed in facilities of three beds or less (the "6 bed/3 bed limitation").
The Willowbrook Review Panel has effectively ceased to monitor compliance with the Consent Judgment since the state legislature in March, 1980, refused to appropriate funds necessary to continue its operations. This court subsequently held that the district court could not compel the Governor of New York and its comptroller to reinstate funding for the Review Panel in defiance of the legislature and of state law, 631 F.2d 162, 166 (2 Cir.1980). With the
Plaintiffs moved on May 22, 1981, for an order declaring that the defendants were not in compliance with provisions of the Consent Judgment relating to clothing, nutrition, environment, staffing, programs and services, and community placement, and for an order referring further issues of compliance with the Consent Judgment to a Special Master. On the same day, defendants moved pursuant to F.R.Civ.P. 60(b) to modify the 15 bed/10 bed limitation in the Consent Judgment and the 6 bed/3 bed limitation in the Flower Hospital Order to a 50 bed limitation. After extensive discovery and 25 days of testimony, the district court on April 28, 1982, 551 F.Supp. 1165, issued the decision prompting the present appeal.
Judge Bartels, while not doubting "the good faith of the defendants in attempting to comply with the Judgment", Opinion at 1179, found that they had failed to attain its standards for sanitation, maintenance, clothing, programming, special therapies, recreation, nutrition, and staffing. He ordered defendants to comply in these respects "with all deliberate speed", but extended the deadline for finding community placements for plaintiffs to April 1, 1985, Opinion at 1192. The decision further provided that a Special Master be appointed, in place of the defunct Review Panel, to monitor compliance with the Consent Judgment. Finally, Judge Bartels ordered modification of the Flower Hospital Order's 6 bed/3 bed limitation to a 6 bed/4 bed limitation, but denied defendants' motion to modify the 15 bed/10 bed limitation in the Consent Judgment. By order dated July 13, 1982, Judge Bartels named Dr. Rudy Magnone as Special Master and enumerated his duties and powers.
II. FINDINGS OF NONCOMPLIANCE
Defendants attack the district court's findings of noncompliance with the Consent Judgment on two grounds. First, they charge that the district court's findings were based on inadmissible evidence obtained pursuant to a discovery order so fundamentally unfair to defendants that it amounted to an abuse of the court's discretion. Second, they attack the findings themselves as "clearly erroneous". Neither ground warrants reversal of the district court's findings of noncompliance.
The district court's order of July 7, 1981, made over defendants' objection,
In challenging the propriety of the discovery order, defendants rely principally on Belcher v. Bassett Furniture Industries, Inc., 588 F.2d 904 (4 Cir.1978), an employment discrimination case in which an order permitting inspection of defendant's plant and questioning of its employees by the plaintiff's expert was reversed. That decision correctly states the standard to be used in deciding whether, under F.R.Civ.P. 26(c), a discovery order such as this one is unduly burdensome: "Under this subsection, the degree to which the proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection." 588 F.2d at 908. The danger, there as here, was that "interrogation of the employees, conducted informally" could amount to "a roving deposition, taken without notice, throughout the plants, of persons who were not sworn and whose testimony was not recorded, and without any right by the defendant to make any objection to the questions asked. Presumably, on the basis of such interrogations, the expert would base his testimony." Id. at 907. The Fourth Circuit found that this danger, combined with the burden of disruption of defendant's operations, outweighed the speculative gains to be derived, in light of the facts that the complaint in Belcher had alleged no specific instances of discrimination, the motion for the discovery order mentioned no specific areas of inquiry, and the expert witness's special field of expertise was not described.
A different balance must be struck in the present case. Here plaintiff counsel's claims of noncompliance were quite specific and their inspections were meant to fill a gap left by the demise of the Review Panel provided for in the Consent Judgment. Judge Bartels, calling on his years of experience with the case, was well able to determine the value this form of discovery would have in resolving the controversy then before him. In many respects the inspection procedure here resembles the placement of experts within Texas Youth Council facilities permitted in Morales v. Turman, 59 F.R.D. 157, 159 (E.D.Tex.1972). Mindful of the unique difficulties presented in post-judgment compliance efforts of the sort here in question, we do not consider the district court's discovery order of July 7, 1981, to have been an abuse of discretion. Almost all the out-of-court statements by unnamed Willowbrook employees provisionally admitted were received for the purpose of enabling plaintiffs' experts to express an opinion as permitted by F.R.E. 703. Moreover, the eyewitness observations to which plaintiffs' experts testified and the documentary and photographic exhibits afforded ample basis for the district court's findings.
Defendants further attempt to show that the findings of noncompliance in Judge Bartels' Opinion and Order of April 28, 1982, (Opinion), 551 F.Supp. 1165, were clearly erroneous. They do this in the face of a Compliance Report (Report) prepared by defendant officials of OMRDD in March 1981 admitting noncompliance with 137 of 385 standards embodying the mandates of the Consent Judgment. Report at 15. Details of these findings and defendants' charges of error follow.
Judge Bartels found that "sanitation at Willowbrook is totally unsatisfactory and presents a serious health hazard to the resident population." Opinion at 1170. Rodents and cockroaches infest the kitchens and dining rooms. Human feces and urine pollute bathrooms and living areas. The district judge also found that "[t]he most glaring maintenance inadequacies," included blocked plumbing, broken furniture, and
Judge Bartels found that "[s]ome residents at Willowbrook are partially clothed, others go nude, and many wear clothes that are ill-fitting, badly torn and stained." Opinion at 1172. The court noted that toilet training of class members cannot proceed when they are pinned or tied into their clothing and thus cannot remove it themselves. Defendants point to testimony describing improvements in this area but, despite these hopeful signs, their Compliance Report records that the clothing supply is insufficient and that clothes are frequently ill-fitting and in disrepair. Report at 10.
Delivery of programming, that is, formal training or instruction for the mentally retarded person's individual needs, was found seriously deficient. Some residents, due to lack of transportation or lack of clothing, never arrive at their programming sessions. Even for those residents who attend, the court found, "[d]efendants have been remiss in developing and implementing individual development treatment plans." Opinion at 1174. Here conflicting expert testimony permitted the court to conclude, in accordance with defendants' Compliance Report, that "[m]any recommended programs and services ... were not being implemented"; residents instead "were observed sitting inactively in program areas." Report at 6.
Defendants on appeal do not mention the court's findings on the absence and misuse of equipment for residents requiring special therapies, enforced idleness due to lack of any recreation equipment, and failure to provide special diets for residents who need them. Opinion at 1174-1175. Defendants do, however, contest vigorously Judge Bartels' finding of "serious staff shortages" due to chronic tardiness, absences, and inefficient deployment of what would otherwise be adequate numbers of employees. Opinion at 1176. Defendants insist that the court improperly relied upon plaintiffs' figures based on worksheets that did not provide complete records of staff attendance. Yet defendants' February 1981 Compliance Report on staffing (Staff Report) revealed the same conclusions. Full compliance could be shown among direct staff, at least on weekdays, when all buildings and shifts were averaged, but "the range of surpluses and deficits varied considerably among buildings." Staff Report at 2. Among mid-level supervisors, even the average attendance in all buildings of the Willowbrook facility during all shifts, including paydays, did not amount to full compliance. Staff Report at 3. Neither this nor any of the findings previously mentioned constitutes the clear error that would be required for us to reverse the judge's findings on conditions at Willowbrook.
III. APPOINTMENT OF A SPECIAL MASTER
Defendants seek to have the district court's appointment of a special master set aside as an abuse of discretion. Their argument that the present case fails to show the requisite "exceptional condition" under F.R. Civ.P. 53(b) is wholly lacking in merit. The monitoring of a Consent Judgment that mandates individualized care for thousands of class members and that entails balancing of the interests of parties with third-party employees,
Underlying defendants' objection to the appointment is the apprehension that the Special Master would become Willowbrook's de facto administrator, intervening at every decision-making stage and rewarding the exposure of deficiencies in ways that would be disastrous to staff morale. An order appointing a special master to oversee a city's compliance with the Fair Housing Act, a remedy opposed by defendants and plaintiffs, was reversed in United States v. City of Parma, 661 F.2d 562, 579 (6 Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 73 L.Ed.2d 1309 (1982), on the ground of intrusiveness. The limited powers of this Special Master, as set forth in Judge Bartels' Order of July 13, 1982, assure that this spectre of usurpation is unlikely to materialize.
Provisions of the July 13, 1982, Order allowing the Master access to Willowbrook records and buildings, permitting him to interview class members and defendants' employees, requiring his staff to compile periodic reports on compliance, and permitting inspection and copying of such reports by all parties, Order at 3-4, are taken practically word-for-word from the powers and duties of the Review Panel set forth in the 1975 Consent Judgment at 7, as is the provision punishing as contempt of court any interference with the Special Master or his staff by any person with notice of the Order. The Order also reproduces the mechanism by which the Review Panel made recommendations regarding compliance with or interpretation of the Consent Judgment, which became binding on all parties unless written objections are filed seeking resolution by the court. Order at 4-5; Consent Judgment at 9. As this court stated in an earlier opinion dealing with Willowbrook, "the parties knowingly and intentionally delegated to a panel of chosen experts the power to make the initial determination on important matters involving the meaning and interpretation of the Consent Judgment", 596 F.2d at 32-33. "[T]hey created continually evolving enforcement and supervisory mechanisms" thought necessary to "meet evolving conditions and to resolve differences", id. at 37. The powers of the Special Master to inspect, to interview, and to make recommendations go no further than those agreed to in the Consent Judgment.
Other powers and duties of the Special Master are more narrowly circumscribed than those previously possessed by the Review Panel. The Special Master is directed to review, integrate, and harmonize the audits conducted by the many existing monitoring groups, Order at 3, and may require the defendants to submit "any reports necessary to assist the Master in performing his duties", Order at 4, but he and his staff do not have the Review Panel's blanket power to "conduct any additional inquiries
The powers granted to the Special Master here comport with those granted in similar cases by other courts. See Gary W., supra, 601 F.2d at 245 and cases cited therein. As limited by the letter and spirit of Judge Bartels' Order of July 13, 1982, the Special Master's role does not threaten usurpation of state functions.
What we have said largely answers the appellants' arguments on this aspect of the case based on Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28, decided by the Supreme Court on June 18, 1982, nearly two months after the decision here. That case, as it reached the Supreme Court on certiorari to the Third Circuit, 644 F.2d 147, was a suit for damages under 42 U.S.C. § 1983 against Pennsylvania state officials by a retarded man who, at his mother's request, had been committed to the Pennhurst State School and Hospital. The damages sought were for injuries received as a result of Romeo's own violence and the reactions of other residents to him, for unduly prolonged physical restraints, and for failure to provide Romeo with appropriate treatment for his mental retardation. The Court upheld Romeo's claims to safe conditions and to freedom from unnecessary bodily restraints. It found his claim to a "constitutional right to minimally adequate habilitation" to be "more troubling", 457 U.S. at 316, 102 S.Ct. at 2458, 73 L.Ed.2d at 37. Because of what it thought to be a disavowal of broader claims, at 318 & n. 23, 102 S.Ct. at 2459 & n. 23, 73 L.Ed.2d at 38-39 & n. 23, the Court considered that Romeo was asserting only a constitutional right to "minimally adequate or reasonable training to ensure safety and freedom from undue restraint." At 319, 102 S.Ct. at 2460, 73 L.Ed.2d at 39. It sustained this claim and, because of the disavowal, found it unnecessary to consider "the difficult question whether a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training per se, even when no type or amount of training would lead to freedom." Id. However, in what for us is the most important passage in the opinion, the Court endorsed the standard articulated by Chief Judge Seitz of the Third Circuit as that to be applied in reviewing state action
Justice Powell went on to say, at 322-323, 102 S.Ct. at 2461-2462, 73 L.Ed.2d at 41-42:
We are unable to agree with appellants that Youngberg automatically leads to reversal of what would otherwise have been an appropriate exercise of the judge's discretion to appoint a Special Master. What it does do is supply a standard that will be relevant to any further attempts that might be made to modify the terms of the consent decree, as we hold it to be with respect to this one. To the extent that the decree leaves room for interpretation, that standard will also have relevance for the Special Master in making recommendations and for the district court in ruling upon them. Time may show that because of Youngberg's restrictive effect upon the scope of the review, the Special Master is unnecessary. In that event the defendants are free to move that the appointment be terminated.
IV. MODIFICATION OF THE CONSENT JUDGMENT
Although we have rejected the foregoing challenges to the action of the district court, we take a different view with respect to its refusal to modify the Consent Judgment's 15 bed/10 bed limitation on the size of community placement facilities for the Willowbrook class and to do more than slightly modify its Flower Hospital Order from a 6 bed/3 bed limitation to one of 6 bed/4 bed.
At the hearing before the district court, defendants made a strong showing that only by modifying the 15 bed/10 bed limitation to one of community placements up to 50 beds in size
In the first place, New York City's extremely tight housing market has slowed down OMRDD's placement of class members in community residences within their home boroughs. OMRDD's past and present directors of community placement testified to the difficulties encountered in finding residences of more than 3 or 4 beds in the city and the greatly increased costs per class member when residences of such small size are acquired and adapted for mentally retarded persons. To obtain community placements of 8 to 10 beds, OMRDD often must purchase vacant sites that could
Some of the placement difficulties encountered by defendants can be traced to the time-consuming procedures for dealing with neighborhood opposition, see note 9, supra, under New York Mental Hygiene Law § 41.34 (McKinney Supp. 1982-83). Another obstacle, defendants' "County of Origin" policy of relocating most Willowbrook residents in the boroughs in which their families still reside, represents a further attempt to defuse neighborhood opposition to "outsiders". Finally, OMRDD has had to rule out many 3 to 4 bed apartments because in order to qualify for federal Medicaid contributions, community facilities housing individuals incapable of responding to emergency situations must be adapted to meet the National Fire Protection Association Life Safety Code, 42 C.F.R. 442.507-442.508 (1981).
The district court took "judicial notice of the current housing shortage in New York City" as a temporary phenomenon but found that "this year 57 new community residences designed to accommodate approximately 450 persons will become available in the New York City area alone, and another 88 units, housing approximately 700 persons, are anticipated for fiscal year 1982-83", Opinion at 1188. The court based its finding on testimony of OMRDD Special Assistant Cora Hoffman and Facilities Development Corporation employee Edward R. Matthews that some 80 sites were "in the pipeline" for the coming year. In response to questioning by the court, however, Hoffman explained that sites "in the pipeline" had been located but had not been approved or acquired. "Some of them," she stated, probably more than half, "we won't ever get". This evidence did not warrant the district court's converting OMRDD's sanguine hopes into realizable facts.
Judge Bartels also found that delays and abandonment of placement sites due to compliance with the "County of Origin" policy, New York Mental Hygiene Law § 41.34, and the federal Life Safety Code were among the "self-imposed" obstacles making defendants' placement difficulties largely a problem of their own creation. By adopting this perspective, however, the district court lost sight of the interests of third parties and the complex environment in which OMRDD must operate. On a less narrow and adversarial view of the evidence, OMRDD's difficulties in stemming neighborhood resistance and securing federal funding take on a real and formidable aspect.
Next to be mentioned is the plethora of expert testimony on the size of the residential facility as a factor bearing on the care received by mentally retarded persons and their opportunities for development. Defendants produced OMRDD Acting Commissioner Sygmond Slezak, New York State Department of Social Services Commissioner Barbara Blum, former Willowbrook Director of Medical Services Dr. Philip Ziring, Associate Director of the Illinois Department of Developmental Disabilities Dr. Richard Blanton, Harvard Psychiatry Professor and former Texas Commissioner of Mental Retardation Dr. Shervert Frazier, Boston University Professor of Special Education Dr. Sue Allen Warren, and Marc Brandt of the Sullivan County Association for Retarded Children, all of whom were in general agreement that a range of facilities of different sizes up to 50 beds would best serve the Willowbrook class. The quality of care and relationships between staff and residents, it was testified, would not suffer in facilities of larger size. Moreover, community placements of less than 10 beds, according to Dr. Ziring and Dr. Frazier, could not each be staffed with physicians and therapists necessary for disabled class members and those with special health risks. In particular, Dr. Ziring considered that the limited access to proper medical care that multiply handicapped residents of Flower Hospital would have in community placements of 3 to 6 beds would amount to "malpractice."
Against this testimony, plaintiffs' and amicus curiae's expert witnesses, including
The district court rejected the evidence of defendants' witnesses and remained convinced "that the needs of the Willowbrook class members are better met in small group homes than in facilities ranging in size from 11 to 50 beds", Opinion at 1184.
An injunction, as a final judgment with prospective application, may be modified by the court upon motion by a party and a showing that continuation of the injunction would be inequitable. F.R.Civ.P. 60(b)(5) expressly authorizes a district court to relieve a party from a final judgment if "it is no longer equitable that the judgment should have prospective application." The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible. "A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.... The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative.", United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932) (Cardozo, J.). "Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted", Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 298, 61 S.Ct. 552, 557, 85 L.Ed. 836 (1941) (Frankfurter, J.).
In denying defendants' motion for modification of the limitation on the size of community placement facilities, Judge Bartels relied on other language of Justice Cardozo in United States v. Swift & Co., supra,
This apparent hardening of the usual standard for modifying decrees of injunctive relief did not stem from the fact that in Swift the Court was dealing with a consent decree. Justice Cardozo explicitly ruled that "[t]he result is all one whether the decree has been entered after litigation or by consent" and rejected the argument that for purposes of modification by the Court, "a decree entered upon consent is to be treated as a contract and not as a judicial act.... The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaption to events to be", 286 U.S. at 114, 115, 52 S.Ct. at 462.
The consent decree at issue in Swift had been entered into by the United States and five major meatpackers in February, 1920, enjoining the meatpackers from violating the antitrust laws and from holding any interest in several lines of business, including the wholesale and retail provision of other foodstuffs such as fish, vegetables, fruit and groceries, as to which the market power arising from defendants' domination of the meatpacking business was thought to give them unfair competitive advantages and to encourage practices violative of the antitrust laws, 286 U.S. at 111, 115-16, 52 S.Ct. at 461, 462-63. The ink had hardly become dry on the decree when the meatpackers began to assail it, see Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 49 L.Ed. 518 (1928); United States v. California Cooperative Canneries, 279 U.S. 553, 555, 49 S.Ct. 423, 424, 73 L.Ed. 838 (1929), the latter of which attempts led to a suspension of the decree for several years. Not daunted by the adverse results in these cases, several of the meatpackers within a year sought major modification in the decree, which the lower court granted to the extent of eliminating the prohibitions mentioned above. The modification on which the Supreme Court passed in Swift would have robbed the 1920 consent decree of so much of its force that the Court considered it "revers[al] under the guise of readjusting", 286 U.S. at 119, 52 S.Ct. at 464.
The Swift decision was analyzed by the Supreme Court in Chrysler Corp. v. United States, 316 U.S. 556, 562, 62 S.Ct. 1146, 1149, 86 L.Ed. 1668 (1942) and, more particularly, in United States v. United Shoe Machinery Corp., 391 U.S. 244, 88 S.Ct. 1496, 20 L.Ed.2d 562 (1968). There the United States, rather than the defendant, sought
Our case differs from both Swift and United Shoe Machinery. Here, as in Swift, the modification is proposed by the defendants. But it is not, as in Swift, in derogation of the primary objective of the decree, namely, to empty such a mammoth institution as Willowbrook; indeed defendants offered substantial evidence that, again in contrast to Swift, the modification was essential to attaining that goal at any reasonably early date. To be sure, the change does run counter to another objective of the decree, namely, to place the occupants of Willowbrook in small facilities bearing some resemblance to a normal home, but any modification will perforce alter some aspect of the decree. An analogy closer than either Swift or United Shoe is King-Seeley Thermos Co. v. Aladdin Industries, Inc., 418 F.2d 31 (2 Cir.1969). We there considered a district court's refusal to modify a 1962 consent decree between two manufacturers regarding use by one, Aladdin Industries, of the generic term "thermos" in labels and advertising. Aladdin had sought modification of the decree insofar as it applied to advertising. We noted that the heavy burden applied in Swift must be read in the context of that case, in which, for reasons previously outlined, the meatpackers were obliged "to stake their claim on drastic changes in conditions", 418 F.2d at 34. When a case involves drawing the line between legitimate interests on each side, modification will be allowed on a lesser showing:
418 F.2d at 35. We therefore remanded in King-Seeley for consideration whether, "in the light of experience, the detailed provisions of the decree seriously and needlessly impeded [Aladdin's] exploitation of the generic term and that modification was necessary to achieve the results intended, even though this would take the form of reducing the restrictions imposed upon it", id. See also SEC v. Warren, 583 F.2d 115, 119-20 (3 Cir.1978) (commentary on Swift and King-Seeley).
Two other considerations reinforce our conclusion that the district court imposed far too drastic a standard upon defendants' request for modification. It is well recognized that in institutional reform litigation such as this judicially-imposed remedies must be open to adaptation when unforeseen obstacles present themselves, to improvement when a better understanding of the problem emerges, and to accommodation of a wider constellation of interests than is represented in the adversarial setting of the courtroom. In one of the earliest scholarly explications of institutional reform litigation, Professor Abram Chayes recognized as its most important characteristic that "the trial judge has increasingly become the creator and manager of complex
As experience with this type of litigation increases, a consensus is emerging among commentators in favor of modification with a rather free hand. According to one, the judge who declines to remain involved and to respond flexibly will fail to "respond to the need, present in most institutional reform cases, for phased implementation and small alterations in strategic objectives as new knowledge is acquired", Note, Implementation Problems in Institutional Reform Litigation, 91 Harv.L.Rev. 428, 436 (1977).
Fiss, The Supreme Court — 1978 Term — Foreword: The Forms of Justice, 93 Harv. L.Rev. 1, 49 (1979). This view has found judicial expression in Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1120-21 (3 Cir.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980). Faced with "a complex ongoing remedial [consent] decree", the Third Circuit upheld a modification sought by the defendants, saying:
Applications to modify a decree such as that in this case should thus be viewed with generosity.
Here especially great generosity is mandated by the decision in Youngberg which we have discussed above. In System Federation No. 91 v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961), the Supreme Court held that a consent decree prohibiting certain acts must be modified when the statutory requirement on which the decree was based was amended so as to permit them. Justice Harlan noted that "the District Court's authority to adopt a consent decree comes only from the statute which the decree is intended to enforce"; hence the court must "be free to modify the terms of a consent decree when a change in law brings those terms in conflict with statutory objectives", 364 U.S. at 651, 81 S.Ct. at 373. Justice Harlan took as undisputed the proposition that "a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have arisen", 364 U.S. at 647, 81 S.Ct. at 371. We can see no reason for a different view when the requirement is constitutional and a subsequent decision of the Court has made clear that the court entering the decree interpreted the requirement too broadly. Theriault v. Smith, 523 F.2d 601 (1 Cir.1975).
As his opinion discloses (pp. 1181 et seq.), the district judge felt free to choose between the different views of plaintiffs' and defendants' experts with respect to the value of the limitations on the size of the units to which the residents of Willowbrook were to be transferred. We now know, as a result of Youngberg, that this was not the appropriate inquiry. Once the defendants had established, as they unquestionably did, that abandoning the 15/10 and 6/3 bed limitations in favor of a 50 bed limitation would facilitate the emptying of Willowbrook and like institutions, the question was whether, in Chief Judge Seitz's phrase, "professional judgment in fact was exercised" or, in Justice Powell's formulation, "the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." 457 U.S. at 321, 323, 102 S.Ct. at 2461, 2462, 73 L.Ed.2d at 41, 42. We see no merit in the argument of the United States as amicus curiae (Brief, p. 38) that defendants irrevocably exercised their professional judgment when they agreed to the consent here; defendants' agreement was premised on their belief, now shown to have been untenable, that they could find enough small facilities to empty Willowbrook within a reasonable time. As said in Swift, supra, 286 U.S. at 115, 52 S.Ct. at 462, "[t]he consent is to be read as directed to things as they were." Since there is no suggestion that defendants' experts testified in bad faith, we very likely could simply reverse the denial of the defendants' request for modification and direct that it be granted. However, since Youngberg was not available to the parties at the time of the hearing or to the district judge at the time of his decision, fairness seems to make preferable a remand on the narrow issue whether the views expressed by defendants' experts as to the propriety of the 50 bed limitation constituted "professionally acceptable choices" or were "such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment."
The district court's findings of noncompliance with the Consent Judgment and its
Defendants' Post-Trial Memorandum at 85-86.
Other circuits have distinguished the Swift standard in different ways. See Tobin v. Alma Mills, 192 F.2d 133, 136-37 (4 Cir.1951); United States v. City of Chicago, 663 F.2d 1354, 1359-60 (7 Cir.1981) (en banc).
Id. at 434.