Montez v. Hickenlooper

FILED
United States Court of Appeals
Tenth Circuit

May 10, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESSE F. MONTEZ,

Plaintiff, No. 08-1399

v.

JOHN HICKENLOOPER; FRANK
GUNTER, Former Executive Director
of the Colorado Department of
Corrections; BEN JOHNSON, Former
Warden of Colorado Territorial
Correctional Facility; CHERYL
SMITH, Medical Administrator at
CTCF; ARI ZAVARAS, Executive
Director of Colorado Department of
Corrections; BOB FURLONG, Warden
of Limon Correctional Facility;
COLORADO DEPARTMENT OF
CORRECTIONS; BILL PRICE,
Warden of the Arkansas Valley
Correctional Center; R. MARK
McDUFF, Warden of the Arrowhead
Correctional Center, the Four Mile
Correctional Facility, the Skyline
Correctional Center, and the Pre-
Release Correctional Center; GARY
NEET, Warden of the Buena Vista
Correctional Facility; WARREN
DIESSLIN, Former Warden of the
Buena Vista Correctional Facility;
FRANK MILLER, Warden of the
Centennial Correctional Facility;
DONICE NEAL, Warden of the
Colorado State Penitentiary; MARK
WILLIAMS, Warden of the Colorado
Women’s Facility; MARK McKINNA,
Warden of the Colorado Territorial
Correctional Facility; J. FRANK
RICE, Dr. Warden of the Denver
Reception and Diagnostic Center;
LARRY EMBRY, Warden of the
Fremont Correctional Facility;
TOM COOPER, Former Warden of the
Fremont Correctional Facility; BILL
BOGGS, Warden of the Rifle
Correctional Facility; BILL BOKROS,
Warden of the Pueblo Minimum
Center; DAVID HOLT, Medical
Administrator at the Arrowhead
Correctional Facility, the Centennial
Correctional Facility, the Colorado
State Penitentiary, the Fremont
Correctional Facility, and the Skyline
Correctional Facility; JEAN MOLTZ,
Medical Administrator at the Buena
Vista Correctional Facility and the
Rifle Correctional Facility; RON
JOHNSON, Medical Administrator at
the Denver Reception and Diagnostic
Center; DON LAWSON, Clinical
Administration Director at the Limon
Correctional Facility and the Arkansas
Valley Correctional Facility; BOB
MOORE, who supervises the medical
department at the Pueblo Minimum
Center, and JOHN DOE(S), Current
and former Wardens of any
Correctional facility maintained,
operated or controlled by the Colorado
Department of Corrections, and JOHN
ROE(S); RONALD G PIERCE;
COLORADO TERRITORIAL
CORRECTIONAL FACILITY; BRAD
ROCKWILL; ANNETTE PORTER;
DENVER RECEPTION &

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 DIAGNOSTIC CENTER; SGT. R.
MURPHY; GLENNTTE [sic] SMITH;
BECKY RHOMONA; JIM WEBER;
NARD CLAAR; BILL REED;
FREMONT CORRECTIONAL
FACILITY,

Defendants-Appellees.

LARRY GORDON,

Claimant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 92-CV-00870-JLK-OES)

Eric V. Hall of Rothgerber Johnson & Lyons LLP, Colorado Springs, Colorado,
for Claimant–Appellant.

James X. Quinn, Assistant Attorney General (John W. Suthers, Attorney General;
Berina Ibrisagic and Chris W. Alber, Assistant Attorneys General, with him on
the briefs), Civil Litigation and Employment Law Section, Denver, Colorado, for
Defendants–Appellees. *

Before KELLY, McKAY, and MATHESON, Circuit Judges.

McKAY, Circuit Judge.

This case raises several issues relating to our appellate jurisdiction. In

*
Current Colorado State Governor John Hickenlooper is substituted for
former Governor Bill Owens. See Fed. R. App. P. 43(c)(2).

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particular, we are called upon to decide whether we have jurisdiction over an

appeal from the district court’s review of a claim for damages filed by an

individual claimant pursuant to the dispute-resolution mechanism established in a

class action consent decree.

BACKGROUND

In the early 1990s, Colorado state prisoners initiated a class action lawsuit

alleging that state officials were committing ongoing violations of disabled

prisoners’ rights under the Americans with Disabilities Act, the Rehabilitation Act,

and 42 U.S.C. § 1983. In 2003, the parties entered into a consent decree, called a

“Remedial Plan,” setting forth the actions Defendants would take to bring the state

prison system into compliance with the applicable statutes and establishing a

procedure through which individual inmates could bring damage claims for

injuries incurred. Specifically, the consent decree provided that the damage

claims of individual class members would be determined by a special master,

subject to abuse-of-discretion review by the district court. The consent decree was

silent as to the possibility of further review by this court. Although class

counsel’s involvement was required for compliance issues relating to the prison

system as a whole, the consent decree explained that “[c]lass counsel does not

have an obligation to represent any individual with respect to their individual

damage claim.” (Appellant’s App. to Supplemental Br. at 79.)

Pursuant to the dispute-resolution mechanism established in the consent

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decree, Claimant Larry Gordon filed an individual claim for damages. After

reviewing the evidence, the special master denied Mr. Gordon’s claim, concluding

that he did not suffer from a covered disability as defined by the consent decree

and, moreover, that there was no evidence Mr. Gordon was discriminated against

based upon his claimed disabilities. The district court affirmed this ruling and

held that Mr. Gordon’s complaints regarding the quality of his medical care

needed to be “addressed through a separate individual action, and not as a part of

the remedial plan in this case.” (Id. at 130.)

Mr. Gordon then filed an appeal to this court. In response, Defendants filed

a jurisdictional memorandum brief and motion to dismiss, arguing, inter alia, that

the consent decree did not authorize the district court’s rulings on individual

damage claims to be appealed to this court. Because this issue had been raised and

remanded in a related appeal brought by a different individual claimant in the

underlying class action litigation, see Montez v. Owens, 307 F. App’x 160, 163-64

(10th Cir. 2009), the panel abated Mr. Gordon’s appeal pending resolution of that

remand order.

In the earlier appeal, the panel reasoned that remand was appropriate “in

deference to the terms of the parties’ own agreement.” Id. at 163. Specifically,

the panel noted that the consent decree provided a process under which a

disagreement concerning the proper interpretation of the Remedial Plan would first

be subjected to a good-faith attempt by the representatives of each party to resolve

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the disagreement and, if unsuccessful, thereafter submitted to the district court for

resolution. The panel reasoned that because the appeal authorization issue

involved a disagreement concerning the proper interpretation of the Remedial

Plan, the contractually agreed-upon process should be followed in the first

instance before this court took up the matter. The panel also suggested, without

deciding, the involvement of class counsel might be necessary in this process, “as

‘individual prisoners lack standing to individually litigate matters relating to a

class action.’” Id. at 164 (brackets omitted) (quoting McNeil v. Guthrie, 945 F.2d

1163, 1166 (10th Cir. 1991)).

On remand, the parties could not resolve their disagreement concerning the

interpretation of the Remedial Plan, and the matter was submitted to the district

court for consideration. The district court then ruled that its orders on appeal from

the special master’s decisions “were intended under the operative consent decree

to be FINAL decisions [that] ARE NOT APPEALABLE to the Tenth Circuit Court

of Appeals.” (Appellant’s App. at 299.) This court subsequently lifted the

abatement of Mr. Gordon’s appeal and appointed counsel to represent him on

issues relating to appellate jurisdiction. Having received supplemental briefing

and heard arguments from the parties, we are now prepared to rule on the matter.

DISCUSSION

We first consider Defendants’ argument that Mr. Gordon’s appeal is

unequivocally barred by the district court’s ruling on appealability, which this

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court cannot review as a matter of law because it was not appealed by class

counsel. We are not persuaded by this argument. The consent decree makes clear

that class counsel’s involvement is not necessary with respect to individual

claimants’ damage claims. This contractual provision is in accordance with our

precedent, which explains that “class members may bring individual actions when

they seek money damages,” McNeil, 945 F.2d at 1166 n.4, despite the rule that

“individual prisoners lack standing to individually litigate matters relating to the

class action,” id. at 1166. Although we suggested in our earlier remand order that

the involvement of class counsel might be necessary to resolve the dispute

regarding the proper interpretation of the consent decree, we did not definitively

decide this question. Moreover, even if class counsel’s participation might be

deemed necessary in the contractually agreed-upon process for resolving disputes

in interpretation, it does not thereby follow that class counsel’s involvement is

necessary for us to determine whether we have appellate jurisdiction over an

individual claimant’s appeal from an order affecting only his own right to

individual damages. Although as a matter of stare decisis our ruling on the matter

may affect Defendants’ ability to rely on the consent decree to argue against

appellate jurisdiction in other individual claimants’ appeals, this does not change

the fact that Mr. Gordon is appealing only the resolution of his own individual

claim for damages. Under these circumstances, we are not persuaded that class

counsel’s involvement is necessary for us to consider whether an appeal may be

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had under the terms of the consent decree. Nor are we persuaded that Mr. Gordon

was required to separately file an appeal from the district court’s ruling on a legal

issue that was remanded for consideration by the district court in the first instance

while Mr. Gordon’s appeal on the merits was properly filed and pending before

this court.

Having held that we may properly consider the question of our appellate

jurisdiction over the appeal, we now turn to the question of the appropriate

standard of review for this question. Defendants argue the district court’s ruling

on appealability under the consent decree was premised on factual findings that we

should review only for clear error. However, nothing in the district court’s ruling

suggests it was based on anything other than the court’s interpretation of the

language of the consent decree itself, and we review this interpretation de novo.

See Sinclair Oil Corp. v. Scherer, 7 F.3d 191, 194 (10th Cir. 1993). We also

review de novo the other questions Defendants raise relating to our jurisdiction

over Mr. Gordon’s appeal. See United States v. Lot 85, County Ridge, 100 F.3d

740, 742 (10th Cir. 1996).

Defendants maintain that because the consent decree did not expressly

authorize appeals to this court, no appeals may be taken from the district court’s

review of the special master’s resolution of individual damage claims. They argue

that Tenth Circuit law requires a party to a consent decree to specifically reserve

the right to appeal in order to raise any challenges relating to the decree. For

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support, Defendants cite to Mock v. T.G.&Y. Stores Co., 971 F.2d 522 (10th Cir.

1992), in which we repeated “the well-accepted rule” that “an appeal ordinarily

may not be taken from a consent judgment” because “a party to a consent

judgment is thereby deemed to waive any objections it has to matters within the

scope of the judgment.” Id. at 526. 1

We are not persuaded the rule discussed in Mock is applicable to the instant

case. Mock involved a consent decree in which the plaintiffs agreed to drop their

claims against the defendants in return for the entry of judgment in their favor. Id.

at 527. We thus held in Mock that the plaintiffs, having freely consented to the

entry of judgment, could not later seek to undo that consent and litigate claims

they had agreed to dismiss in the consent decree. Id. As we explained in Mock,

the general rule regarding the non-appealability of consent decrees is based on

principles of waiver—when “‘the decree appealed from was assented to by the

appellant, we cannot consider any errors that may be assigned which were in law

waived by the consent.’” Id. at 526 n.5 (quoting 15 C. Miller, A. Miller & E.

Cooper, Federal Practice and Procedure § 3902, at 91-92 (1992) (in turn quoting

Pac. R.R. v. Ketchum, 101 U.S. 289, 295 (1879))). Here, unlike in Mock, the class

members did not waive their right to bring claims against the defendants. Instead,

1
We note that the terms “consent judgment” and “consent decree” are
generally used interchangeably. See Judith Resnik, Judging Consent, 1987 U.
Chi. Legal F. 43, 45 (explaining that the former distinction between these terms
has been blurred by the merger of equity and law).

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the consent decree simply set up a mechanism through which class members could

pursue their individual damage claims. Thus, unlike the plaintiffs in Mock, Mr.

Gordon is not attempting to back out of the agreement or object to matters within

the scope of his consent; rather, he is only seeking appellate review of the result of

the agreed-upon mechanism for resolving his claim.

The Second Circuit faced a similar situation in United States v.

International Brotherhood of Teamsters, 905 F.2d 610 (2d Cir. 1990). In that

case, like the instant case, the consent decree did not itself resolve claims, but

instead simply established a mechanism under which claims would be decided.

Specifically, the parties agreed that an independent administrator would sit as a

decisionmaker in disciplinary labor cases, with his decisions to be “final and

binding, subject to the [district] Court’s review as provided herein.” Id. at 615.

The consent decree further provided that the district court would “have exclusive

jurisdiction to decide any and all issues relating to the Administrator’s actions or

authority” under the consent decree. Id. When certain individuals attempted to

appeal the district court’s affirmance of the administrator’s disciplinary sanctions

against them, the investigations officer and the federal government argued the

Second Circuit lacked appellate jurisdiction to consider these appeals under the

terms of the consent decree. However, the Second Circuit concluded the consent

decree did not contain a clear and unmistakable expression of the intent to waive

appellate rights, reasoning the statement that the district court had “exclusive

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jurisdiction” did not unambiguously exclude appellate review, since it could be

construed simply as a provision on venue. Id. The Second Circuit thus concluded

it had jurisdiction to review the district court’s decisions implementing the consent

decree. Id.

Similarly, in the somewhat analogous situation of appeals from district court

orders reviewing arbitration decisions, we have held that limitations on the right to

appeal from the district court’s judgment will be valid only if the intent to limit

appellate rights is “clear and unequivocal.” MACTEC, Inc. v. Gorelick, 427 F.3d

821, 830 (10th Cir. 2005). Thus, even if the language of the arbitration agreement

provides that the district court’s review of an arbitration award will be “final,” a

further appeal may be had to this court, since “the very statute from which we

derive our jurisdiction, 28 U.S.C. § 1291, grants the appellate courts jurisdiction

from ‘all final decisions of the district court.’” Bowen v. Amoco Pipeline Co., 254

F.3d 925, 931 (10th Cir. 2001). We have explained in these cases that, at least as

it relates to the waiver of appellate review, there is “no reason to treat district

court decisions concerning arbitration awards differently than any other kind of

district court judgment.” MACTEC, 427 F.3d at 830.

We similarly see no reason to treat the district court’s decision regarding

Mr. Gordon’s legal claim differently simply because the district court reached this

decision pursuant to a mechanism established in the consent decree between the

parties. Following the Second Circuit’s reasoning in International Brotherhood,

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we hold that we have the authority to review claims decided pursuant to a dispute-

resolution mechanism established in a consent decree, so long as that decree does

not contain a clear and unequivocal waiver of appellate rights. In so holding, we

do not disturb our holding in Mock that the parties to a consent decree generally

may not bring subsequent challenges to the consent decree or the claims resolved

therein. See Mock, 971 F.2d at 526. We simply hold that, when a consent decree

does not resolve claims itself but instead simply establishes a mechanism under

which the district court will resolve claims, the parties may appeal the district

court’s final resolution of such claims to this court unless the consent decree

contains a clear and unequivocal waiver of the right to appellate review. Such an

appeal, unlike an appeal that falls under the Mock rule, does not involve a

“retroactive[] attempt to undo consent properly given” or a complaint of errors

waived through entry of the consent decree, id. at 526 n.5, and thus it does not

implicate the same waiver-of-error concerns. Applying this ruling to the instant

case, we conclude that the terms of the class action consent decree—containing not

even a hint of the intent to waive appellate rights, much less the requisite clear and

unequivocal expression of such intent—do not bar appellate review of the district

court’s resolution of individual claimants’ damage claims pursuant to the

mechanism established in the consent decree.

This conclusion does not end our jurisdictional inquiry. This court typically

only has jurisdiction over “final decisions” of the district court, which generally

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means the district court’s decision “must reflect ‘the termination of all matters as

to all parties and causes of action.’” Dodge v. Cotter Corp., 328 F.3d 1212, 1221

(10th Cir. 2003) (quoting D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744

F.2d 1443, 1444 (10th Cir. 1984) (en banc)). Litigation is still ongoing in the

underlying class action, and thus the district court’s decision as to Mr. Gordon’s

claim did not finally end all matters as to all parties. However, as even

Defendants concede, the circumstances of this case warrant application of the

collateral order doctrine. “To establish jurisdiction under the collateral order

doctrine, [a party] must establish that the district court’s order (1) conclusively

determined the disputed question, (2) resolved an important issue completely

separate from the merits of the case, and (3) is effectively unreviewable on appeal

from a final judgment.” Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415

F.3d 1171, 1178 (10th Cir. 2005). This appeal squarely fits within these criteria,

as (1) the district court’s order conclusively determined the question of Mr.

Gordon’s entitlement to monetary damages, (2) this question is important as it

relates to Mr. Gordon and is completely separate from the merits of the

overarching class action, and (3) the court’s order would be effectively

unreviewable if Mr. Gordon had to wait until the entry of final judgment on the

entire class action—ongoing for the past nineteen years and with no clear end date

in sight—to appeal from the resolution of his discrete claim for damages. We thus

conclude we have jurisdiction over this appeal under the collateral-order doctrine.

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 In their jurisdictional memorandum brief, Defendants also contend we lack

jurisdiction over this appeal on the basis of untimeliness. Defendants

acknowledge that Mr. Gordon placed his notice of appeal in the prison’s legal mail

system one day prior to the deadline for filing a timely notice of appeal. However,

they argue we should not consider Mr. Gordon’s notice of appeal to be timely

because it did not include a declaration of the date of deposit and an attestation

that postage was pre-paid as required by Price v. Philpot, 420 F.3d 1158, 1165-67

(10th Cir. 2005), for compliance with the provisions of the prisoner mailbox rule.

Defendants completely misunderstand our decision in Price. In that case we

stated:

[A]n inmate must establish timely filing under the mailbox rule by
either (1) alleging and proving that he or she made timely use of the
prison’s legal mail system if a satisfactory system is available, or (2)
if a legal system is not available, then by timely use of the prison’s
regular mail system in combination with a notarized statement or a
declaration under penalty of perjury of the date on which the
documents were given to prison authorities and attesting that postage
was prepaid.

Id. at 1166 (emphasis added). Because Mr. Gordon established timely filing

through his use of the prison’s legal mail system, he was not required to comply

with the requirements of the second prong. We therefore reject this jurisdictional

challenge to the appeal.

As for the merits of Mr. Gordon’s claim for damages, none of his filings to

this court convince us the special master erred in finding he did not suffer from a

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covered disability as defined by the settlement agreement. We therefore affirm the

dismissal of his claims for substantially the same reasons given by the special

master and the district court.

CONCLUSION

For the foregoing reasons, we DENY Defendants’ motion to dismiss the

appeal for lack of jurisdiction and AFFIRM the district court’s dismissal of Mr.

Gordon’s claims. We previously granted Mr. Gordon’s motion for leave to

proceed in forma pauperis on appeal, and we again remind him of his obligation to

continue making partial fee payments until the filing fee has been paid in full. We

DENY Mr. Gordon’s pending pro se motion regarding the issuance of subpoenas.

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