LEVIN H. CAMPBELL, Circuit Judge.
The two issues raised by this appeal are: (1) whether the action below is a class action, even though the district court never certified a class as required by Fed. R.Civ.P. 23(c)(1), and gave no notice to class members; and (2) whether the stipulation executed by the parties and approved and entered in the court record by the district court in 1977 conferred authority on the district court to regulate the care given certain patients at a separate psychiatric facility located some distance from the institution named in the original action. We hold that this suit is a class action and that the provisions of the stipulation do not apply at the other institution.
In 1974 Roberto Navarro Ayala ("Navarro"), a mentally retarded patient at the Psychiatric Hospital of the Commonwealth of Puerto Rico, a public mental health institution located in Río Piedras, San Juan ("Hospital" or "Río Piedras"), filed a complaint under 42 U.S.C. § 1983 in the District Court for the District of Puerto Rico, on behalf of himself and all others at the Hospital, asserting that the inhumane conditions there violated plaintiffs' constitutional rights. Included as defendants were the Governor and other Commonwealth officials having control over the Hospital.
In 1977, before trial, the parties executed, and the district court approved, a stipulation effectively ending the suit. The stipulation provided for numerous specified improvements in respect to what was termed the "institution and its residents." The word "institution" was defined in the stipulation as being "The Commonwealth of Puerto Rico Psychiatric Hospital as presently constituted or in Decentralized form."
In the ensuing fourteen years, defendants have taken many steps under the supervision of the district court to comply with the terms of the stipulation. Recently, however, disputes have arisen as to the court's right to force the defendants to apply the stipulated measures at a different facility known as the Guerrero Therapeutic Community ("Guerrero") to which certain of the Hospital's former patients were sent as part of the process of relieving overcrowding at the Hospital. Defendants contend (1) that the district court's jurisdiction is limited to ordering relief to Navarro personally, the only named plaintiff, because a class of patients was never certified, and notice was never given to the class; and (2) that the stipulation currently governs only the care and treatment of patients at the Psychiatric Hospital in Río Piedras, within the municipality of San Juan, and does not regulate the care and treatment of patients at Guerrero.
In a March 6, 1990 "Opinion and Order," the district court held that this suit was a class action. The court also reaffirmed its position that it had "jurisdiction" not only over Río Piedras but also over Guerrero in respect to the treatment and living conditions of former Río Piedras patients there. Defendants appealed from these rulings.
BACKGROUND
A. The Institution
During the early part of the 1970s, as now, the Psychiatric Hospital in Río Piedras, San Juan, was one of the hospitals offering mental health services as part of the Commonwealth of Puerto Rico's Department of Health Mental Health Program. In the words of the 1977 stipulation, the Hospital offered hospitalization 24 hours a day, emergency psychiatric services and admissions, and outpatient psychiatric services. According to the stipulation, referrals came "from the Northeastern Region of Mental Health Centers of Arecibo, Manati, Bayamón, Caguas, Carolina, Fajardo, Humacao, San Patricio and Cayey." (We take judicial notice that the Guerrero Therapeutic Community in dispute is located outside and to the west of the above-named communities; its locus, the city of Aguadilla, is in the northwest corner of Puerto Rico, roughly 70 miles from San Juan.)
In the early 1970s the Hospital was badly overcrowded and urgently in need of improvement. According to allegations of plaintiffs' complaint, it lacked essential physical facilities, such as lockers where patients could safely keep their personal belongings, clocks in all wards, visible calendars, lamps, night tables, lounging areas with comfortable chairs, pictures, magazines, books and other items of normal daily living. Beds in the wards did not have pillows, the laundry service was faulty, and the bathrooms and hallways were not deodorized. Patients would be placed naked in isolation rooms which lacked toilet facilities. Not only were the facilities faulty, but so, too, was the treatment. Therapeutic treatment was insufficient, as the Hospital was understaffed. Many patients allegedly did not have comprehensive habilitation plans addressed to their individual needs; and, in some wards,
B. The Plaintiff
"Navarro" was referred to a social worker at the Psychiatric Hospital in Río Piedras in 1970, when he was 19 years old because of "abnormal behavior." After attempts to treat Navarro's mental illness using only out-patient services had failed, his mother had him committed to the Hospital in April of 1974.
C. Evolution of this Appeal
On November 25, 1974, Navarro, represented by his mother, Maria Ayala, filed a complaint in the District Court for the District of Puerto Rico "on behalf of all allegedly mentally incapacitated persons now residents at the Psychiatric Hospital ... or that are receiving mental treatment in said Hospital." The complaint contained detailed allegations criticizing conditions at the Hospital and the treatment received by patients therein; included were the allegations outlined above. The complaint alleged that these conditions at the Psychiatric Hospital violated provisions of the Bill of Rights of the United States Constitution, depriving Navarro of his right to privacy, his right not to be subjected to cruel and unusual punishment, his right not to be subjected to involuntary servitude, his right to equal protection under the law, and his right to treatment. The complaint alleged that the Psychiatric Hospital "is not a therapeutic institution. It resembles a prison...." It further alleged that the Psychiatric Hospital's environment "is inhumane and psychologically destructive" due to overcrowding and lack of minimal physical and health facilities. Other inadequacies of the Psychiatric Hospital were delineated. While describing at length the wretched conditions at the Psychiatric Hospital, the complaint did not allege similar inadequacies at any other of the Commonwealth's mental health facilities. The prayers in the complaint sought declaratory and injunctive relief solely at the Hospital: they requested a declaration that the Psychiatric Hospital did not meet constitutionally minimum standards; a judicial determination of what proper standards the Constitution required for residents of the Psychiatric Hospital; and an injunction against the unconstitutional conditions there. The court was asked to enjoin further admissions to the Hospital until it had determined that the Hospital met such standards as the court specified.
The complaint named as defendants: Rafael Hernández Colón, as Governor of the Commonwealth of Puerto Rico; José Alvarez de Choudens, then Secretary of Health of the Commonwealth; José A. Nuñez-López, then Assistant Secretary of Health; Erick Santos, then Director of the Commonwealth's Psychiatric Hospital; Concepción Pérez, then Administrator of the Hospital Center of Puerto Rico, and their "agents, employees and/or successors in office."
1975 — June 1977: The Stipulation
The defendants answered the complaint on March 21, 1975, denying most of its allegations, including that the suit was properly a class action. The defendants also denied that the district court had jurisdiction. However, before the case could be set for pretrial in May 1977, all parties engaged in negotiations resulting in agreement on the terms of a comprehensive stipulation in settlement of the lawsuit. On April 20, 1977, they submitted the stipulated agreement for the court's approval. The remedying of the existing conditions at the Psychiatric Hospital was the central theme of the stipulation; it included 86 standards that the parties stipulated would be observed at the Hospital. Short term plans included removal of the mentally retarded and other long term patients who did not require this type of hospital care to the Cayey and Bayamón Psychosocial and Rehabilitation Centers, and included the placement of additional patients in the foster home care program. The agreement contained no express provisions that the 86 standards, or any of them, would be effectuated at the Cayey and Bayamón facilities, nor did it mention at all the Guerrero Therapeutic Community in Aguadilla. The
Appointment of the Special Master
Between July 1977 and 1984, there was little activity in the case. On January 31, 1985, the district court held a status conference, and, on February 1, 1985, entered an order granting plaintiff's request that a master be appointed.
On April 10, 1985, a hearing was held before the Master on plaintiff Navarro's condition. The director of the Hospital thereafter took measures to provide Navarro with the care required by the consent decree. An individual treatment plan was prepared for him.
1986 — 1990
By April 11, 1986, the Hospital was still overcrowded. The Hospital's total census was 421, not counting 64 patients out on passes. Only 312 beds were available and, according to the Hospital's medical director, 296 was the ideal number of patients until adequate staffing could be provided. A number of alternatives to solve this problem were discussed by the defendants and the Master. During this period the Commonwealth made available additional funds totaling $8 million for all mental health programs.
After tendering his preliminary fourth report, the Master asked the defendants for a compliance proposal that would bring the case to a close. After several drafts of a compliance plan had been proposed and rejected, on June 29, 1987, the Secretary of Health submitted a third plan ("Plan 3"). Plan 3 proposed converting the Hospital into a 250-bed hospital treating only acute and subacute patients,
On August 5, 1987, the defendants filed exceptions and commentaries to the Master's fourth report. While noting that "[t]he class in the present action is composed of the patients of the Psychiatric Hospital and the institutions wherever they may be referred to in a descentralization [sic] program," the defendants asked that the court "maintain the scope of the class in the above captioned case and the stipulations agreed on by admitting from Plan 3 those portions that apply to the Psychiatric Hospital." The defendants now claim that, through this filing, they objected to the application of the stipulation beyond Río Piedras.
On August 10, 1987, in response to the Master's fourth report and the defendants' exceptions thereto, the court issued an order. As suggested by the Master, the order "incorporated" Plan 3, instructed the Secretary to report on the budgets for "the Hospital and the pre- and post-Hospital programs whose support is essential to the Hospital's compliance," and stated that the Commonwealth's mental health system would be "charged" with care and treatment of patients who were "neither acute or subacute." With respect to the issue of "jurisdiction," the court treated the defendants' exceptions and commentaries as an objection to its "jurisdiction" over the "network of pre- and post-Hospital services." In response to this objection, the court stated that it had no intention of concerning itself with matters not directly related to the Hospital's compliance with the stipulation. The court added, however, that "this translates principally into a concern that pre- and post-Hospital facilities be adequately funded. There is also the related concern that patients transferred from the Hospital to transitional and psychiatric rehabilitation services receive care and treatment consistent with the 86 stipulations." The defendants did not appeal from this order.
The transfer of 144 patients to Module 7 of Guerrero took place as ordered. This transfer appears to have been part of a large scale exodus of patients from Río Piedras. According to the Master's tenth report, during the eight months following the court's August 10, 1987 order, 904 patients left the Hospital. Of these, 343 were "transferred to the transitional services suited to their individual needs," and the balance apparently left the Puerto Rico mental health system.
At the same time these transfers were occurring, the Master, with the consent of the defendants, conducted several visits to various facilities, including Guerrero, (the "tripartite visits") to assess the defendants' progress. The Master indicated that by April 27, 1988 overcrowding at the Río Piedras Emergency Ward had been eliminated and the PIC (Emergency) unit inaugurated.
On June 28, 1988, the defendants submitted a motion claiming that the case should be closed because the government had substantially complied with the 1977 stipulation.
On May 12, 1989, the Master submitted his eighth preliminary report covering the period of October 1988 to April 18, 1989. The report noted the problems faced by the Hospital in its effort to achieve full compliance. The Department of Health had not made available a sufficient number of transitional or post-hospitalization residential facilities. According to the report, the failure to provide sufficient units of transitional services was one of the principal causes for the Hospital's failure to achieve full compliance.
A number of meetings were then held between the parties and the Master to determine the substantive criteria and procedure to be followed in assessing whether full compliance had been achieved. Since no consensus was reached, each party submitted its own proposal to the Master. The Master, in his eighth preliminary report recommended to the court that an "interdisciplinary team," consisting of a psychiatrist, a social worker, a nurse, and an occupational therapist, be assembled to evaluate the substantive and procedural criteria for determining compliance. On April 15, 1989, the court issued an order appointing the members of the interdisciplinary team and providing for their compensation.
On June 12, 1989, plaintiffs submitted to the Master a "Motion Seeking Remedies," alleging that former Hospital patients transferred to Guerrero were not receiving adequate treatment. The motion alleged that there was overcrowding at Guerrero, that the facilities were unsanitary and more akin to a concentration camp than a therapeutic community. The Master's interdisciplinary team was instructed to visit Guerrero on June 19, 1989 and thereafter report to the court on its findings and recommendations regarding treatment at Guerrero. The interdisciplinary team subsequently reported that former Rio Piedras patients at Guerrero lacked complete individualized treatment plans and were not receiving the benefits of an adequate psychiatric rehabilitation program. Several meetings were held between the Master and Commonwealth officials to discuss this report. The Commonwealth officials alleged that they faced problems in the recruitment and retaining of personnel due to the scarcity of professionals in the vicinity of Guerrero and the low government salaries.
The defendants then, in a September 6, 1989 letter, objected to the Court's "jurisdiction" over Guerrero. This objection was formally raised before the court in an October 20, 1989 motion. On December 28, 1989, the district court issued an opinion and order, addressing two questions. First
With respect to the first question, the court concluded that:
This "jurisdiction" empowered the court to "secure compliance with the 86 stipulations in the Consent Decree, with the terms of the August 10, 1987 order, and all other pertinent orders issued by the Court." Although the court stated that this conclusion was consistent with the language of the stipulation, it did not engage in any detailed analysis of that language. Instead, it based its conclusion largely on Guerrero's role in relieving overcrowding at Rio Piedras, the parties' actions subsequent to the drafting of the stipulation and its previous order of August 10, 1987. Thus the court stated that its conclusion was grounded on the Master's view that the Hospital "could only comply with the stipulations if it were conceived as an integral part of a system of mental health care which, besides the Hospital, necessarily included a network of pre- and post-hospital services." The court further stated that Plan 3, and the letter commitments of the Secretary concerning Guerrero, were proposed by the Secretary, at his initiative, accepted by the plaintiffs, adopted by the court and incorporated in the August 10, 1987 order. The court therefore held that, because of its August 10 order "incorporating" Plan 3, Plan 3 was
In addition, the court found that the defendants had manifested their consent to its "jurisdiction" by failing to object to several early reports of the Master concerning the reach of the stipulations, the tripartite visits, or the visits of the interdisciplinary team.
Having found that it had "jurisdiction" over former Rio Piedras patients transferred to Guerrero, the court went on to address the plaintiffs' contention that those patients were not receiving adequate rehabilitation services. The court determined that those patients "were not receiving adequate psychiatric rehabilitation services on June 19, 1987 and for an indeterminate period of time prior to that date." However, the court was unable to determine whether those services had been adequate since September 6, 1989. Therefore, the court ordered the Master to develop "criteria for evaluating Guerrero's rehabilitation services ... based on the stipulations, the court's August 10, 1987 Order, and, as well, the concept of a therapeutic community as enunciated by the Mental Health Secretariat." The court postponed its decision to fine the defendants, as requested by the Master, to a later date.
On January 16, 1990, the defendants moved the court under Fed.R.Civ.P. 59(e)
On March 6, 1990, the district court issued another opinion and order reaffirming its "jurisdiction" over the network of pre-and post-hospitalization services and over former Hospital patients transferred to Guerrero for largely the same reasons as those set forth in its December 28 opinion and order. The court stated that "the stipulated agreement was never understood as limited to conditions and services exclusively within the Hospital," and that, even if the stipulation's application to Guerrero "is characterized as a modification, it was the [defendants'] doing in the first instance." The district court also rejected the defendants' assertion that it did not have "jurisdiction" over these facilities based on principles of federalism. It found the defendants' arguments "largely irrelevant."
In the March 6, 1990 opinion and order, the court also ruled that this action had been maintained as a class action since class certification was satisfied when the court approved the stipulated agreement in April of 1977. As to notice to the class members, the district court found that the provision under Rule 23 requiring notice existed essentially to permit individuals to request exclusion from the class, or to enter an appearance through their own counsel. Even if all the patients had been notified directly or through their respective guardians, the district court found it inconceivable that any of them would have asked to be excluded from the benefits mandated by the agreement. The record reflects, the court said, that in thirteen years no patient nor his respective guardian had come forth to complain that his rights under the stipulated agreement had in any way not been represented adequately by counsel for plaintiffs in the class action, nor had any member of the class sought to be represented by his or her own counsel. Finally, the court agreed with plaintiffs' view that the defendants' arguments were frivolous and, pursuant to Fed. R.Civ.P. 11 and 28 U.S.C. § 1927, assessed sanctions totaling $1,500 in attorney's fees against counsel for the defendants.
It is from the March 6, 1990 order that the defendants appeal.
I. CLASS ACTION
Defendants contend that the suit Navarro instituted below never became a class action because a class was never certified as required by Fed.R.Civ.P. 23(c)(1).
The question of class certification here is not simple. See generally Pasadena City Board of Education v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d 599 (1976) (absent certification, where named plaintiffs lost their interest in the lawsuit, case would have become moot, infra). In important public interest litigation like this, we do not know how the parties and the original judge could have overlooked a key step like class certification. Nonetheless, we are persuaded that because this case was instituted by a complaint seeking class relief, implicitly granted class relief, and was conducted for years as a de facto class action, it should and may be recognized as such. We shall address defendants' contrary arguments.
A. Class Certification under Fed. R.Civ.P. 23(c)(1)
It was an egregious omission for the district court not to have determined explicitly, as soon as practicable after this action commenced, whether it could be maintained as a class action and, if so, the proper description of the class. See Fed. R.Civ.P. 23(c)(1).
While express class certification is a fundamental requirement, uncertified actions have on occasion been recognized as class actions. When the parties stipulate that the action is a class action and clearly define the members of the class, and the court enters judgment pursuant to the stipulated terms, this may sufficiently imply certification for purposes of Fed.R.Civ.P. 23(c)(1). See Oburn v. Shapp, 393 F.Supp. 561 (E.D.Pa.) (holding that where the action was filed as a class action and a consent decree was entered into, entry of the consent decree was sufficient certification of the action as a class action under Rule 23), aff'd on other grounds, 521 F.2d 142 (3d Cir.1975); Bing v. Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir.1973) (where the plaintiff brought an action as a class action and the district court granted class relief, but neglected to certify the class, the district court nevertheless "implicitly determined that th[e] suit would be maintained as a class action").
While the Supreme Court has yet to rule directly on the issue of implied certification, the Court has suggested, in dicta, that parties may not be able to rely on implicit class certification. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). In Spangler, several students of a public school system sued the school board and several of its officials, alleging unconstitutional segregation. After trial, the district court entered a judgment holding that the defendants' educational policies violated the Fourteenth Amendment, and, pursuant to the court's order, the defendants submitted a plan for systemwide relief. Four years later, the defendants moved to modify
Any expression by the Supreme Court, whether or not in dicta, must be taken seriously. Events here, however, come much closer than in Spangler to actual class certification. Unlike in Spangler, the parties have executed, and the court has approved, a written stipulation providing not only for class-wide relief but describing those who constitute the class. The named plaintiff, Navarro, sued expressly on behalf of himself and "all allegedly mentally incapacitated persons now residents at the Psychiatric Hospital ... or that are receiving treatment in said Hospital." The defendants, in their answer, denied, inter alia, that the suit was properly a class action. On April 8, 1975, the plaintiffs filed a memorandum of law containing detailed arguments in support of treating the case as a class action, but before the district court could rule on this motion, the parties submitted to the court on April 20, 1977 a stipulated agreement in resolution of the case. After reviewing the provisions of the stipulation, the court entered judgment on June 2, 1977 "in accordance with all the agreements made by the parties in said stipulation." One of the agreements so made by the parties was the stipulated definition of "residents" of the Hospital (for whose benefit the operative clauses of the consent decree were drafted) as "[a]ll persons who are now patients and all persons who may in the future receive treatment or habilitation at such institution."
Once the plaintiffs and defendants stipulated to these matters, and the court entered judgment in accordance with their written stipulation, the class nature of the suit was, in practical effect, "established." The remedies in the stipulation clearly went far beyond the individual needs of the named plaintiff. It was fashioned as an instrument for Hospital-wide change, affecting all patients at Rio Piedras, not just one patient. Consistent with the stipulation, the sweeping hospital improvements later undertaken by the court, Master and parties were directed at benefiting the entire patient class, not simply at helping the named plaintiff. Had defendants or the court not believed this was a class action, they would hardly have taken the measures they did for thirteen years nor would defendants have failed to raise the issue until now.
The stipulation, moreover, specifically describes the class members who are to benefit from the stipulated relief. Supra. No stipulated agreement or definition appeared in Spangler. Thus, the stipulation served the purpose of Rule 23 — "to give clear definition to the action," Fed.R.Civ.P.
Another difference between this case and Spangler is that, in the proceeding from which this appeal was taken, the question of whether this was a class action was presented to the district court, which found that it was. The defendants had argued the contrary position to the court. The court concluded that, while the original judge had never expressly certified a class, a class had been intended and was defined in the stipulation, and that the court, the parties and the Master had continuously viewed and treated the case as a class action. Thus the court of appeals is not being asked to imply certification for the first time on appeal from whatever it can discern of the actions of the parties below, as in Spangler. Rather the matter of class certification comes to us, after adversarial presentation below, with the benefit of a district court finding. The situation is close to that where a district court certifies a class retroactively after judgment, having inadvertently failed to act earlier on a certification motion. See Gurule v. Wilson, 635 F.2d 782, 790 (10th Cir.1980); Marshall v. Kirkland, 602 F.2d 1282, 1301 (8th Cir.1979). Thus, notwithstanding the concerns Spangler raises, we think it proper to uphold the district court's ruling sustaining the class nature of this suit.
B. Notice to the Members of the Class
Defendants also complain that neither the patients nor their guardians were given any notice regarding the proceedings in this case, either by counsel for the plaintiff or by the court-appointed Master. Defendants appear to focus on Rule 23(e), but since Rule 23(d)(2) as well as Rule 23(e) refers to notice, we review the arguments under both.
Rule 23(d)(2)
Fed.R.Civ.P. 23(d), advisory committee's notes to 1966 amendment. Hence, the notice contemplated under Rule 23(d)(2) is discretionary. Penson v. Terminal Transport Co., 634 F.2d 989, 993 (5th Cir.1981); United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 878 n. 86 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). Commentators have stated that adequate representation alone will comply with the due process demands of the rule, obviating constitutional need for notification of class certification. H. Newberg, Newberg on Class Actions, § 8.16 (2d ed. 1985). Thus, Rule 23(d)(2) did not require the district court to give notice of class certification to the patients or their guardians.
The language of Rule 23(e),
The lack of notice argument is particularly inappropriate coming, as it does, not from injured class members but from officials seeking to use the lack of notice as a basis for resisting the granting of relief to the plaintiff class. To uphold defendants for failure of notice to class members would be to wield the notice requirement as a sword against those it was meant to help.
We hold, in sum, that this suit is properly a class action brought in behalf of all persons who were patients when suit was brought and all persons who may in the future receive treatment or habilitation at the Psychiatric Hospital in Río Piedras.
II. APPLICATION OF THE STIPULATION TO GUERRERO
The second issue is whether the district court correctly determined that the terms of the stipulation can be enforced in respect to former Hospital patients now residing at the Guerrero Therapeutic Community, a separate institution located in the city of Aguadilla, approximately 70 miles from the Hospital. The court ruled that the stipulation entered in 1977 applied to Guerrero in respect to the approximately 144 patients transferred there from Rio Piedras. The court therefore concluded that it had "jurisdiction" over Guerrero, and that the Master should consider how the stipulation (although written chiefly in terms of the needs of Rio Piedras) should be applied to the rehabilitation services offered at Guerrero.
We hold that neither the terms of the stipulation nor the subsequent actions of the parties make the stipulation applicable at Guerrero.
A. Standard of Review
The present case was not resolved by judicial rulings and findings but by a court-approved stipulation.
We recognize that this court has said that district courts enforcing public law consent decrees have, in general, broad discretion in determining such matters as whether the objectives of the decree have been substantially achieved. United States v. Commonwealth of Massachusetts, 890 F.2d 507, 509 (1st Cir.1989). Unlike consent decrees entered into in commercial litigation, which are to be construed
In Langton v. Johnston, 928 F.2d 1206 (1st Cir.1991), we elaborated the rationale behind these two different standards for interpreting consent decrees:
Id. at 1221.
The above might at first glance appear to require deference to the judgment of the district court in this case as to the scope of coverage of the present stipulation. However, we see a critical distinction here based on the nature of the question. The rule of broad discretion in public interest cases is designed to give the district court flexibility in deciding exactly how the numerous conditions of a complex consent decree are to be implemented in practice. In overseeing broad institutional reform litigation, the district court becomes in many ways more like a manager or policy planner than a judge. Over time, the district court gains an intimate understanding of the workings of an institution and learns what specific changes are needed within that institution in order to achieve the goals of the consent decree. In Commonwealth of Massachusetts, for example, the district court needed considerable leeway to decide whether the Commonwealth's remedial plan for providing periodic evaluations of the patients was sufficiently specific. 890 F.2d at 509. In Older Americans the district court, in ruling on a contempt motion, needed discretion to decide whether a state's new policy for deciding whether to terminate AFDC benefits would suffer from the same deficiencies as the former termination policy which had given rise to the litigation. 803 F.2d at 39. And the Langton district court, also ruling on a contempt motion, required discretion to decide whether a treatment center had sufficiently implemented the educational, vocational, recreational and therapeutic programs required by a consent decree. 928 F.2d at 1211-17.
However, the issue now presented differs markedly from the issues that were before the district courts in Commonwealth of Massachusetts, Older Americans and Langton. Here the issue is at what public institution or institutions the
Especially is this so given that the reach of the stipulation brings along with it the oversight jurisdiction of the federal courts. Principles of federalism weigh against a rule of district court deference which could result in enlarging federal jurisdiction beyond the parties' original understanding. One of the contracting parties here was, in effect, the Commonwealth of Puerto Rico, which now strenuously objects to the district court's interpretation. Especially where there has been no trial finding of unconstitutionality at any institution, the stipulation must limn the proper boundaries of the federal writ and must be scrupulously honored.
We conclude that the question of the district court's power over Guerrero is an issue to be decided under ordinary contract rules. Appellate review of contract interpretation is ordinarily plenary, Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir.1981). We, therefore, proceed carefully to scrutinize the stipulation and the actions of the parties to determine whether the stipulation applies at Guerrero.
B. What the Stipulation Originally Provided
The stipulation defines the term "institution" as "[t]he Commonwealth of Puerto Rico Psychiatric Hospital as presently constituted or in Decentralized form" and then goes on to specify 86 conditions that must be met at the "institution." The question is whether this definition of the term "institution" includes Guerrero.
It is clear that neither in 1977 nor at any later time was Guerrero the "... Hospital as presently constituted." Can it be viewed as having become the "... Hospital ... in Decentralized form?"
The plaintiffs suggest that when the definition of "institution" was drafted in 1977, the parties had in mind the "decentralizing" of Rio Piedras Hospital by transferring some of its emergency and other outpatient services to other facilities, placing some of its existing patients elsewhere, and diverting others who might become new patients. Plaintiffs go on to urge that such actions would cause the Hospital in "decentralized form" to become, besides Rio Piedras itself, any and all pre- and post-Hospital facilities within Puerto Rico serving or receiving patients who would formerly have been served by the Hospital or might have stayed there. Thus, Guerrero, which particularly (but by no means exclusively) came to serve a "post-Hospital" or "transitional" function, thereby relieving demands on Rio Piedras, is said to have become, functionally, a "decentralized form" of Rio Piedras Psychiatric Hospital, and hence subject to all the relief imposed by the stipulation upon that institution.
We have fundamental difficulty with this reasoning. First, we do not think that a distant mental health facility, distinct from the Hospital, and with no administrative connection therewith, would normally be considered the "... Hospital ... in Decentralized form." There is no evidence of any special relationship between the Hospital and Guerrero other than an arrangement, tendered initially by defendants and now enforced by the court, that it would provide 144 places to accommodate Hospital overflow. If the mere receipt of patients from the Hospital, or otherwise destined for the Hospital, is sufficient to transform an institution into "[t]he Commonwealth of Puerto Rico Psychiatric Hospital ... in Decentralized form," then every other public facility receiving one or more such patients becomes theoretically subject to the 86 reform standards set out in the stipulation, or, at least, to a visit from the Master to determine how much of the stipulation it is possible to apply there. Such a construction would cause the tail to wag
A further reason to doubt this unnatural reading of the stipulation is that it far exceeds the relief sought by the plaintiffs in their complaint. The chief evidence of what plaintiffs were seeking when they agreed to the stipulation lies in the complaint, in which plaintiffs outlined the relief sought in their lawsuit. The complaint speaks of overcrowding, understaffing, poor living conditions, and inadequate care and treatment of patients at "the Commonwealth of Puerto Rico Psychiatric Hospital" (i.e., what we also call the "Hospital" or "Rio Piedras"). In its prayers, the complaint seeks declaratory and injunctive relief at (specifically and repeatedly) the Psychiatric Hospital alone. Far from mentioning the treatment of patients outside the Hospital, or the treatment of removed Hospital patients at other places, it seeks an injunction against further admission of patients to the Psychiatric Hospital until conditions there are improved. There is no reference whatever to decentralized facilities or decentralization in the complaint. The complaint makes clear that the sole object of the lawsuit is to improve conditions at the Psychiatric Hospital. It seems reasonable, therefore, to assume that this, too, was the object of the stipulation entered into by way of settlement of that suit. If so, we think the term "... Hospital ... in Decentralized form" deserves a less ambitious reading than is now urged. The parties might simply have meant a reconstituted Hospital composed of separate administratively linked components. Or they may have thought that several quasi-independent facilities would operate bearing the original name of the Psychiatric Hospital. The fact is, no one knows. Lacking any further explanation of what was meant, we do not believe that this curious and totally unclear terminology can now bear the burden of including facilities around Puerto Rico whose only link with the Hospital is the receipt or diversion of some of its former or would-be patients.
The substantive provisions of the stipulation likewise offer little support for the proposition that it was meant to apply beyond the Hospital proper. To the contrary, the stipulation bears overwhelming evidence that the standards therein were drafted to apply at the Hospital — understandably, since conditions at the Hospital
First, several of the stipulation's provisions equate the "institution" — the entity to which the stipulation applies — with Rio Piedras. In section "B-III", describing habilitation plans, the stipulation states that
In this passage the parties appear to have used "San Juan Psychiatric Hospital" and "institution" interchangeably. If the term "institution" were not synonymous with Rio Piedras, then these two sentences would refer to two different entities, which, in context, would not make sense.
Likewise, Section "B-IV" contains a detailed description of the Rio Piedras facility, discussing the number of wards there and the number of patients, showers and toilets in each ward. It then goes on to state that "[u]ntil such time as the physical facilities at the institution can be habilitated to provide in each ward multi-resident rooms of no more than 10 patients, and one toilet, lavatory, and shower for every 10 patients, the following physical improvements shall be provided...." (emphasis added). By following the description of deficiencies at Rio Piedras with a specific proposal for improving conditions at the "institution," this paragraph, like that discussed above, equates the term "institution" with the Rio Piedras Hospital alone.
Not only does the stipulation equate the "institution" with Rio Piedras in two places, several of its substantive provisions underscore the intention to apply to Rio Piedras. For example, as noted above, the stipulation contains a detailed description of the existing physical facilities at Rio Piedras immediately preceding the list of physical standards to be observed prospectively. This indicates that the physical standards (and, by implication, the rest of the standards) were thought of as applying to Rio Piedras. Even assuming the standards are general enough to apply to any facility, the drafter would not likely have preceded these general standards with a detailed description of Rio Piedras if he had intended the standards to apply anywhere but at Rio Piedras. Moreover, this physical description of Rio Piedras cannot be viewed as some sort of boilerplate language merely intended to introduce a set of general physical standards. The stipulation is divided into two overall parts, part "A," containing an introductory description of conditions then existing at Rio Piedras, and part "B," containing a list of standards to be observed in the future. Thus, if the physical description of Rio Piedras were merely boilerplate, one would expect it to appear somewhere in part "A," not immediately preceding the operative physical standards in part "B."
Another part of Section "B-IV" makes specific reference to two other facilities, Cayey and Bayamón, mandating that 200 patients be moved from Rio Piedras to those named facilities. Yet the stipulation does not state that its standards are to apply to those facilities. If it were the intent of the parties that Cayey and Bayamón be regarded as part of a decentralized Río Piedras, and hence subject to the stipulation, surely a draftsman would have made this point more clearly than by the single use of the term "decentralized form" in the definitional section. Indeed, this would have been the logical place in the agreement to clarify the requirements applicable to an institution such as Guerrero. The total lack of mention of this concept in reference to Cayey and Bayamón seriously undercuts the plaintiffs' current arguments on this score.
In addition to these particular provisions, the entire structure of the stipulation indicates that it is aimed specifically at the Rio Piedras Hospital. The stipulation is divided by two headings: "A. FACT SITUATION" and "B. STANDARDS TO BE OBSERVED AT THE
We conclude, therefore, that the stipulation, as drafted, did not encompass Guerrero. While Guerrero and many other institutions have taken overflow from the Hospital, they have not, in any meaningful sense, become its operational components. They are not now the "Commonwealth of Puerto Rico Psychiatric Hospital ... in Decentralized form." This is not to question the right of the court to require the Commonwealth to accept Hospital patients at other facilities, as part of the necessary plan to bring the Hospital in conformity with the stipulation. A district court has extensive equitable powers to enforce stipulated goals. But neither the stipulation nor the court's authority extends to the conditions at such places in the absence of further agreement or another lawsuit establishing the existence of unconstitutional conditions at these separate institutions. State officials entering into a consent decree are entitled to rely on courts to apply the decree only to its agreed objects. Consent decrees are not like the camel's proverbial nose in the tent, which, once inserted, gives the animal free rein to come and go at will. The improvement of mental health facilities will not be advanced by giving state officials reason to avoid entering into such arrangements in the future for fear they will be expanded beyond their language.
C. Construction of the Stipulation in Light of the Parties' Actions
Having decided that the stipulated agreement as drafted in 1977 did not, by its terms, apply to Guerrero, we next consider whether it now applies to Guerrero because of the actions taken by the parties to implement the agreement. An argument that the actions of the parties make the stipulation applicable to Guerrero may be constructed in a number of different ways. First, in the view of the district court, the defendants' actions gave rise to an equitable estoppel, so that they were estopped to deny that the stipulations applied to Guerrero. Second, the district court also held that "norms of judicial responsibility" dictated the same result, which might be thought of as an application of the doctrine of judicial estoppel. See United States v. Levasseur, 846 F.2d 786, 792 (1st Cir.1988). Third, our dissenting colleague argues that the defendants' actions may be used as extrinsic evidence to indicate that the defendants, in drafting the original agreement, intended that it would apply to facilities such as Guerrero.
All three of these arguments hinge upon the proposition that the defendants, through their actions, have represented that the stipulations would apply to Guerrero. Equitable estoppel contains a representation element, see Phelps v. Federal
To be sure, the defendants have taken numerous actions aimed at using the Guerrero facility, as well as others, to help alleviate overcrowded conditions at Rio Piedras. They have done so at the court's urging, and, as we have said, we believe the court properly exerted pressure upon defendants to provide facilities to reduce overcrowding at the Hospital. See Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196 (1st Cir.1974). The mere transfer of patients to Guerrero and elsewhere, however, did not constitute a representation by defendants that they agreed to operate Guerrero in conformity with the 86 conditions set forth in the stipulation. Nor did defendants' suggestions that the quality of care provided at these places would be high amount to any such representation.
Plaintiffs contend that before the adoption of Plan 3, defendants did not object to, and supposedly by their silence acquiesced in, certain statements by the Master relating to the need for improvements at institutions other than Río Piedras.
It is true that after submitting Plan 3, the defendants, on August 5, 1987, submitted "exceptions and commentaries" to the Master's fourth report, parts of which may be read as assuming the stipulations will apply beyond Río Piedras. The exceptions and commentaries state that
We find it difficult to discern any precise meaning from this language. Even if the reference to "whatever facilities may be used to descentralize [sic] the care of said hospital's patients" may be viewed as acknowledging that Guerrero is "under" the stipulations, that language is contradicted by the apparent attempt to limit the court's authority to Rio Piedras by asking it to "admit [] from Plan # 3 those portions that apply to the psychiatric hospital." Moreover, throughout the course of this litigation,
Nor can the defendants' failure to appeal from the court's August 10, 1987 opinion and order, issued in response to the "exceptions and commentaries," be treated as such a representation. The court stated in that opinion and order that it intended to see that patients transferred to Guerrero received treatment consistent with the stipulation. Defendants' failure to appeal from this order did not, however evidence acquiescence that the stipulation applied at Guerrero.
Finally, like their previous actions, the defendants' participation in the "tripartite visits" and the "interdisciplinary visits" to Guerrero and their submission of a report on the status of patients transferred to Guerrero cannot be construed as tantamount to a representation that the stipulation applied to Guerrero. In the words of the Master, the "tripartite visits" were undertaken for the limited purpose of "evaluat[ing] if transferred patients were better off than if they had remained in the hospital." An agreement to determine whether the patients were better off in Guerrero does not evidence an agreement that their treatment was regulated by the 86 stipulations. Indeed, when the "interdisciplinary group" reported that patients transferred from Rio Piedras to Guerrero were receiving inadequate rehabilitative care, the defendants,
We do not find, therefore, that defendants ever acknowledged that the remedial requirements of the stipulation were applicable at Guerrero. Instead, defendants' actions seem simply to have reflected the view that they were obligated to improve Río Piedras by reducing overcrowding there, and should do so in a generally cooperative and progressive manner.
Thus, while we believe that the district judge and the court-appointed Master have done an outstanding job performing the role of policy planners and managers to see that the complex legal goals inherently part of this litigation come about, a direct intervention to regulate the operation of the Guerrero facility was neither included in the terms of the stipulation nor made appropriate by the subsequent endorsement of the parties. As such intervention is not authorized, it must terminate.
In so holding, we do not deny that the district court has broad remedial powers to effectuate the provisions of the stipulation. See generally Morgan v. McDonough, 548 F.2d 28, 31 (1st Cir.1977) (district court's "equity power is broad and flexible and the propriety of an order turns on a balancing of individual and collective interests in the particular case"). For example, if former members of the plaintiff class now resident at Guerrero still lack the individual habilitation plans required by Section B-III(8)(c) of the stipulation because such plans were denied them when they were patients at the Hospital, the court even now could act to correct and remedy that earlier violation of the stipulation by ordering that the omitted plans be provided. In so doing, the court could not oversee current care and treatment at Guerrero, but would be entitled to order the patient
CONCLUSION
To summarize, we find, first, that this suit is properly a class action. Second, we hold that the district court may not impose the terms of the stipulation on, or regulate, the Guerrero facility.
The opinion and order of March 6, 1990 is affirmed in part and reversed in part. Orders of the district court inconsistent with this opinion are vacated, and the case shall proceed in the district court in a manner consistent with this opinion.
CYR, Circuit Judge (concurring, in part; dissenting, in part).
I concur in Part I of the opinion, but respectfully dissent from the conclusion reached in Part II. The majority opinion concludes that the consent decree definition of "institution" is too vague or ambiguous to permit the interpretation given it by the district court. The majority seems most concerned that appropriate respect for the integrity of Commonwealth governmental institutions and the principles of federalism would be disserved by the district court's interpretation of its jurisdiction under the consent decree. Although federalism concerns and the integrity of Commonwealth governmental institutions merit earnest consideration, the threat perceived by the majority is exaggerated.
The district court, plainly mindful of the attendant implications,
The majority proceeds on the doubtful assumption that the decentralization provision operated ab initio as an unmitigated burden on the Commonwealth.
Under the explicit language of the consent decree, the plaintiff class is comprised of present and future "residents" of the "institution." The jurisdiction of the district court consequently extended to Rio Piedras and all collateral facilities utilized to depopulate and decentralize Rio Piedras in order to bring it into compliance with the minimum physical standards prescribed by the consent decree. The restrictive interpretation advanced by the majority is dependent entirely on the unrealistic assumption that a significant subset of the plaintiff class, namely all patients transferred from Rio Piedras, accepted a consent decree requiring improvements at Rio Piedras but imposing no obligation on the Commonwealth regarding the quality of care available at the collateral facilities to which those same patients were to be transferred. Viewed in its litigation context, I believe that the consent decree requires the interpretation given it by the district court and that the interpretation adopted by the majority is unwarranted by either the language of the decree, the extended course of compliance and superintendence under the decree, or the nature and aims of the class action.
I. Plain Language of Consent Decree
Although federalism concerns offer an arguable basis for de novo appellate review of the jurisdictional reach of a consent decree governing public institutional reform litigation,
The proper interpretation of a consent decree basically presents a question of law, as does the preliminary determination whether the disputed language is ambiguous. See AMF, Inc. v. Jewett, 711 F.2d 1096, 1100-01 (1st Cir.1983); Massachusetts Ass'n for Retarded Citizens, Inc. v. King, 668 F.2d 602, 607 (1st Cir.1981) (citing United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975)); see also Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir.1989). The majority suggests that the terms "institution" and "Rio Piedras Hospital" were used interchangeably and synonymously throughout the decree, and that perhaps the definition of "institution" — as consisting of the "Commonwealth of Puerto Rico Psychiatric Hospital as presently constituted or in Decentralized form" — was included merely to ensure that an internally-restructured facility at Rio Piedras, or any other mental health facilities subsequently placed under the direct administrative control of the Rio Piedras Hospital, would be covered by the terms of the decree.
The massive overcrowding at the Rio Piedras facility in 1977 manifested to all the parties that the system of care provided at Rio Piedras in 1977 might well be "decentralized" over time. Yet the parties could not then know, with any precision, which or how many collateral mental health facilities would be needed to accommodate the patients who would have to be transferred from Rio Piedras.
First, the majority converts the pivotal definition of "institution" into virtual surplusage by suggesting two implausible reasons for its inclusion in the consent decree. Because the particular array of services provided at the Rio Piedras facility was almost certain to change during the course of the Commonwealth's compliance, the majority posits the theory that the parties included the definition of "institution" only to ensure that the stipulations in the decree would continue to apply to this internally-restructured facility. We should be very reluctant to conclude that prominent language in a decree, which has received the imprimatur of the parties and the superintending court, is superfluous and without legal import. See, e.g., Systemized of New England, Inc. v. SCM, Inc., 732 F.2d 1030, 1034 (1st Cir.1984); J.E. Faltin Motor Transp., Inc. v. Eazor Express, Inc., 273 F.2d 444, 445 (3d Cir.1960). The majority fails to explain why, if the Rio Piedras facility were to remain an intact entity at its original location, the simple phrase "Rio
The majority next suggests that the parties may have included the definition of "institution" to encompass any new branches of the Rio Piedras facility opened by the Commonwealth at other locations throughout Puerto Rico and placed under the same administrative control as Rio Piedras. See supra at n. 4. The suggested interpretation is totally at odds with the underlying goal of the litigation and the consent decree, which was to fix the obligations of the Commonwealth to all members of the plaintiff class. We cannot plausibly suppose that the parties would have had any reason to insert in the decree a prominent provision whose only purpose would be to govern the Commonwealth's unilateral decision to "reshuffle" the organization within its Department of Health. After all, the Commonwealth ultimately controls all public mental health facilities in Puerto Rico, regardless of the number of discrete administrative units into which it might choose to parcel its mental health program. Given that reality, the majority fails to explain how such administrative reshuffling would even be material to the resolution of the problems to be addressed by the present litigation. By emphasizing the bureaucratic form of the Hospital, rather than the substantive goals of the litigation and the consent decree as a whole, the majority interpretation renders the Commonwealth's obligation totally illusory. See, e.g., Shakey's Inc. v. Covalt, 704 F.2d 426, 434 (9th Cir.1983) (preference given to contract interpretation that does not render obligations illusory). According to the majority view, the Commonwealth would be free at any time to redefine its obligations under the consent decree, artificially, by placing various facilities under the nominal control of an administrative unit of the Department of Health separate from the Rio Piedras facility. Furthermore, under the majority's thesis, the Commonwealth would have been permitted to effect a unilateral shutdown of the entire Rio Piedras facility, transferring all its patients to other facilities, without any further obligation to former Rio Piedras patients. I believe it inappropriate to trivialize a judicial decree in this manner, particularly a consent decree.
Second, the majority emphasizes that the decree specifically describes physical conditions at the Rio Piedras facility, while omitting any description of the physical conditions at other facilities mentioned in the decree, such as the mental health programs at Cayey and Bayamon. The majority proposes to interpret the absence of such descriptions as an indication that the stipulations in the consent decree were not meant to apply to any facility other than Rio Piedras.
The significance of the asserted "omission" must be viewed in conjunction with the broad definition of "institution" set out earlier in the consent decree. It is a common drafting technique (expressio unius est exclusio alterius) to omit specific examples (Cayey and Bayamon) where their inclusion might imply that the specific examples completely exhaust the scope of a broader category previously defined. See generally 2A Norman J. Singer, Sutherland Statutory Construction §§ 47.23, 47.24 n. 6, at 194, 203, 205 (4th ed. 1984) (discussion of exclusio doctrine in interpreting statutes and contracts). The inclusion of a specific description of the physical conditions at Cayey and Bayamon might well have been considered a reasonable basis for inferring that Cayey and Bayamon comprised the entire fixed "decentralized form" of the Hospital, and that no other collateral facilities, such as Guerrero, could have been considered part of the "institution" in the future. Thus, the "omission" relied on as support for the narrower interpretation advanced by the majority provides persuasive support for the interpretation given by the district court.
Furthermore, as previously noted, the particular physical conditions at Cayey and Bayamon were not the primary or immediate focus of the consent decree. The decree requires that the Rio Piedras facility
Third, the majority suggests that the provisions of the decree relating to the internal procedures for screening the medical requirements of incoming and transferring patients demonstrate that the terms "institution" and "Hospital" are used interchangeably by the parties. The interpretation of a pivotal provision in a consent decree should not be approached under the assumption that it is the product of poor draftsmanship or an indiscriminate use of terms. Instead, at least when the resulting interpretation fully accords with the language and context of the consent decree, it is appropriate to credit the parties with a mutual intention to use different terms to import distinctive meanings. Read in context, the language cited by the majority does not equate the terms "Hospital" and "institution." Rather, it is clear that the screening provision prescribes distinct requirements for intra-institutional patient transfers, namely transfers of patients between Rio Piedras and its collateral component facilities, and inter-institutional patient transfers, namely transfers of patients from outside the "institution" into Rio Piedras or one of its collateral facilities.
Finally, the majority notes that Section B, which contains both the definition of "institution" and the list of stipulations, is prefaced by the heading "Standards to be Observed at the Psychiatric Hospital." By equating the heading's reference to "Psychiatric Hospital" with "Rio Piedras," the majority suggests that the parties would have used the term "institution" or "covered facilities" in the heading if they had intended to apply the stipulations to facilities other than Rio Piedras, which constituted the entire psychiatric hospital at the time of the decree.
The district court interpretation ascribes meaningful import to the disputed language, consistent with the overall purposes of the other provisions of the consent decree. The majority has not demonstrated that the decree is ambiguous, so as to warrant an alternative interpretation of the terms "institution" and "decentralized form."
II. Ambiguity and Extrinsic Evidence of Intent
Assuming, arguendo, that the disputed terms of the decree are ambiguous, however, I cannot agree that the district court interpretation is not due considerable deference. The majority asserts that our normal deferential stance toward district court interpretations in public institutional reform litigation is inappropriate when the disputed language in the consent decree involves the important question of jurisdiction, rather than mere modes of compliance with the terms of the decree. If an ambiguous decree must be interpreted as any other contract, however, the majority does not explain why the district court cannot be permitted to employ "ordinary contract principles" which look beyond the confines of the "four corners" of the contract or decree to determine the true intent underlying the parties' use of the disputed language. Our customary "deference" to the trial court in every other case of contract interpretation is based on the recognition that the trial court is better situated to appraise the probative value of this type of extrinsic evidence. I believe that the majority opinion not only unnecessarily restricts the interpretive inquiry to the "four corners" of the consent decree, but discards appropriate interpretive tools for discovering the intent of the parties as expressed in their consent decree and undervalues the district court's superior opportunity to evaluate the pertinent extrinsic evidence developed during the course of its superintendence of public institutional reform litigation.
In earlier cases treating the proper interpretation of an ambiguous consent decree, the Supreme Court implicitly confined the proper focus to the "four corners" of the decree, abjuring recourse to extrinsic evidence. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971). In later caselaw, however, the Supreme Court disparaged such a narrow reading of Armour:
United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975) (emphasis added). As noted, this type of "extrinsic evidence" analysis does not seek to modify the terms of the original consent decree without the parties' consent. Rather, as with all other methods of contract interpretation, the court may use extrinsic evidence to discover the original intent of the parties in settling upon the particular language used in the consent decree. See, e.g., Raymond Keith Foster, Keith Foster Mfg. Co. v. Hallco Mfg. Co., 947 F.2d 469, 482 (Fed.Cir. 1991); United States v. O'Rourke, 943 F.2d 180, 187 (2d Cir.1991); North Shore Labs. Corp. v. Cohen, 721 F.2d 514, 519, 520 n. 5 (5th Cir.1983).
Under a well-established rule of contract interpretation, the court may look to the parties' post-contract course of conduct and performance to ascertain the "practical interpretation and application" that the parties themselves attached to ambiguous contract language:
3 Arthur L. Corbin, Corbin on Contracts § 558, at 249-253 (1960) (emphasis added). Through the performance rendered by the parties, the court gains invaluable insight into the practical interpretation mutually intended by the contract language. See, e.g., U.S.I. Properties Corp. v. M.D. Constr. Co., Inc., 860 F.2d 1, 10 (1st Cir. 1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1988).
Unlike a simple contract action where the post-contract conduct of the parties usually must be presented to the court in the form of controverted extrinsic evidence, much relevant post-consent decree conduct in public institution reform litigation takes place before the district court in the course of its ongoing superintendence of the performance required under the decree. During the required performance, the district court is uniquely positioned to evaluate typical modes of expression by the parties and the significance of their silence or acquiescence in the face of representations by the court and the conduct and representations of opposing parties. It seems most appropriate that district court findings based on extrinsic evidence should be reviewed for clear error only. See, e.g., Fox v. United States Dept. of Hous. & Urban Dev., 680 F.2d 315, 319 (3d Cir.1982) (resort to use of extrinsic evidence in interpretation of consent decree converts issue to one of fact). Thus, it seems particularly inappropriate in the present context to deny deference to the district court's interpretation of the consent decree.
The record provides overwhelming support for the district court findings in this case. The court found that the Commonwealth, by its course of compliance over a period of twelve years, indicated that it intended to accede to district court jurisdiction over any support facilities needed to decentralize services previously administered on the Rio Piedras premises. The court based its findings on several factors.
First, the court noted that in several reports made prior to the Secretary of Health's submission of Plan 3, the Special Master repeatedly emphasized "the systemic approach to securing compliance [with the decree]."
Thus, the district court reasonably found that Plan 3 contained a commitment by the Commonwealth to "deinstitutionalize" the Hospital, which included the later transfer of patients to Guerrero.
Second, while the Commonwealth contends that it immediately filed a timely objection to the scope of the district court's jurisdiction as proposed by the Secretary in Plan 3, its so-called "objection" merely challenged the possible extension of the court's jurisdiction to every public mental health facility in Puerto Rico. Moreover, the Commonwealth's own exception continued to treat the "institution" as including both Rio Piedras and its support facilities.
Third, when the district court finally entered its order incorporating Plan 3, thereby defining its jurisdiction to include Rio Piedras' support facilities generally and Guerrero specifically, the Commonwealth neither objected nor appealed. This telltale silence on the part of the Commonwealth further reinforced the district court's reading of the Commonwealth "objection" to Plan 3 as an objection to any extension of jurisdiction to all mental health facilities in the Commonwealth, and not as a challenge to district court jurisdiction over Rio Piedras and its decentralized support system.
Since the case simply has not been made that the district court's findings are clearly erroneous, and its findings comport with a reasonable interpretation of "decentralized form," I believe we are required to defer to the district court's "intimate understanding of the history and circumstances of the litigation," United States v. Commonwealth of Massachusetts, 890 F.2d 507, 510 (1st Cir.1989), especially in a case where there can be no doubt that the district court engaged in a sensitive analysis of the principles of federalism implicated by its decision. Therefore, although I concur in Part I of the majority opinion, I must respectfully dissent from Part II.
FootNotes
We do not suggest that a district court's special knowledge concerning the parties' intentions when entering into a consent decree might not, in a proper case, provide material guidance about the decree's meaning. There is no issue of that sort here, however. The present district judge was not involved in the parties' negotiations in 1977 and makes no representations of possessing special knowledge about what transpired then.
We think that this principle should guide our interpretation of the agreement in this case. Were we to hold that Guerrero, whose only connection to Rio Piedras is that 144 patients have been transferred to Module 7, is a "decentralized form" of Rio Piedras, we would be left with an agreement the requirements of which would be extremely difficult to determine. First, it would have to be determined what other institutions, besides Guerrero, were also covered. Would all public institutions receiving former Rio Piedras patients be subject to the stipulation? What about private contract facilities and foster homes receiving such former patients? What about facilities treating patients who, formerly, would have gone to Rio Piedras? All such places would fit within the concept of pre- and post Hospital facilities. Second, what programs and spaces at such institutions and facilities would be subject to the stipulation? If, say, three former Rio Piedras patients were at a facility housing 100 other patients, would the court's jurisdiction extend to the entire place or just to programs and spaces affecting the three transferees? If the latter, how could such a separation be effected, practically? Third, it would be unclear which parts of the stipulation applied to those other facilities, programs and parts thereof. Some provisions do not appear capable of application anywhere but at Rio Piedras, and the court would be left to decide how to modify the stipulations to apply them to other facilities.
We think such a result follows from the need, in a complex, ongoing case of this nature, that the district court retain flexibility to modify its orders to deal with changing circumstances. Thus, where a higher court has not considered and upheld an interlocutory order, a district court should generally be free to reconsider that order. As one authority has noted, "[t]he fact that appeal might have been taken from various intermediate orders under an interlocutory appeal statute or an expanded version of the final judgment rule should not preclude reconsideration by the trial court or review on appeal from a traditional final judgment." 18 C. Wright, A. Miller and E. Cooper Federal Practice and Procedure § 4433 (1981). In this case, the district court did in fact reconsider its August 10 order on the merits in both the December 28, 1989 opinion and order and the March 6, 1990 opinion and order, although it ended up concluding that the first order was correct. To hold that the August 10 order was res judicata would mean that the district court had erred in reconsidering its earlier order on the merits. This result would deny to the district court the flexibility it thought necessary at least consider the modification of its earlier interlocutory orders. Thus, the August 10 order was not res judicata.
The second sentence, broader in scope, provides that "[e]ach patient who is referred to the institution must be preliminarily evaluated by the Emergency Room Physician prior to admission to determine whether he should be admitted." Under this provision, if a patient is transferred into the "institution," as defined in the decree, from any facility outside the institution, the patient must be evaluated at Rio Piedras to ensure that he is placed in the appropriate component facility (pre-hospital facility, hospital facility, post-hospital facility), or that he is denied admission if he will not benefit from any of these treatment programs.
The third sentence provides that "[i]f admitted, within two weeks days [sic] of his or her admission to the institution each patient is to be evaluated by the physician assigned to the ward where the patient has been placed." This provision merely requires that the institution place admitted patients in appropriate "wards" within a particular component facility. It is designed to prevent repetition of the problems previously encountered at Rio Piedras where patients often were grouped together "according to their geographical origin, regardless of their mental condition and needs." The term "ward," which is not defined in the decree, certainly is not so precise or exclusive that it could only refer to sections or divisions at the Rio Piedras facility. Presumably, other collateral facilities of the "institution" might segregate patients into different sections according to their medical needs. For example, the Guerrero facility apparently is divided into modules containing fixed numbers of patients and beds, since a 144-bed module has been set aside to receive patients transferred from Rio Piedras.
Pearson v. Fair, 935 F.2d 401, 409 (1st Cir.1991) (emphasis added); see also Langton v. Johnston, 928 F.2d 1206, 1222 (1st Cir.1991) ("The district court, albeit in the person of a series of [five] different judges, has been the central figure in monitoring the extent and adequacy of services provided at the Treatment Center over the better part of the last two decades.").
(Emphasis added.)
Despite the Commonwealth's clear reference to the definition of the term "institution," the majority concludes that the reference was later contradicted and limited by the Commonwealth's final request that the court "admit[] from Plan 3 those portions [of the jurisdictional provisions] that apply to the psychiatric hospital." The word "admit" refers to the impending order of August 10, 1987, in which the district court would either admit or reject the individual provisions proposed in Plan 3. The objection demonstrates that the defendants would not challenge the inclusion of Plan 3's jurisdictional provisions if interpreted so as to include only the "psychiatric hospital," therein defined by the Commonwealth, in perfect agreement with the language of the consent decree, as "the institution ... with whatever facilities may be used to decentralize the care of said hospital's patients."
Finally, the majority states that the district court, in its order of August 10, 1987, interpreted the Commonwealth's challenge as an objection to the expansion of the court's jurisdiction beyond Rio Piedras, rather than as a narrower objection to an extension of jurisdiction beyond the "institution" to all mental health facilities in Puerto Rico. After generally noting that the Commonwealth had never before questioned the scope of the court's jurisdiction as opined by the Master, the district court merely concluded that the defendants had "waived whatever claim that they might have had about ... the scope of the stipulations." The court decided that defendants could raise no jurisdictional objection of any kind at that late stage of the litigation, and it never addressed the nature of the jurisdictional "objection" advanced in the exception.
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