United States Court of Appeals
For the First Circuit
No. 10-1758
UNITED STATES OF AMERICA,
Plaintiff, Appellant,
v.
COMMONWEALTH OF PUERTO RICO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lipez, Siler,* and Howard,
Circuit Judges.
April J. Anderson, Attorney, Department of Justice, Civil
Rights Division, with whom Thomas E. Perez, Assistant Attorney
General, and Dennis J. Dimsey, Attorney, Department of Justice,
Civil Rights Division, were on brief, for appellant.
Michael C. McCall, with whom Aldarondo & López Bras, P.S.C.
was on brief, for appellees.
May 26, 2011
_______________________
*Of the Sixth Circuit, sitting by designation.
LIPEZ, Circuit Judge. In this appeal, the United States
challenges the district court's refusal to find the Commonwealth of
Puerto Rico in contempt for failing to comply with court-ordered
measures aimed at improving conditions in the Commonwealth's
juvenile correctional facilities. The Commonwealth asserts, among
other arguments, that we do not have jurisdiction to hear the
appeal because it is either moot or unripe. Indeed, the remedial
order at issue was suspended in early 2010, as required by the
Prison Litigation Reform Act ("PLRA"), because the Commonwealth's
motion to modify or terminate the order had been pending for 180
days. See 18 U.S.C. § 3626(e)(2)(A)(ii).
As a practical matter, then, the United States seeks to
hold the Commonwealth in contempt for failing to abide by an order
that is not presently in effect and may never be reactivated.
Given the nature of civil contempt in this context as a forward-
looking sanction, we can only conclude that this appeal is unripe.
If we evaluated the correctness of the contempt ruling now, and the
district court subsequently decided not to reinstate the remedial
order, our decision would be an impermissible advisory opinion.
See Ala. State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945)
(noting the Court's "considered practice not to decide abstract,
hypothetical or contingent questions"); Chico Serv. Station, Inc.
v. Sol P.R. Ltd., 633 F.3d 20, 35 (1st Cir. 2011) ("Article III
'ensures that courts do not render advisory opinions.'" (quoting
-2-
Overseas Military Sales Corp. v. Giralt-Armada, 503 F.3d 12, 17
(1st Cir. 2007)); W.R. Grace & Co. v. EPA, 959 F.2d 360, 366 (1st
Cir. 1992) (discussing ripeness and noting that, when a claim rests
on contingent future events, it can "'involve [judges] in deciding
issues unnecessarily, wasting time and effort'" (quoting Roosevelt
Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1034, 1040 (1st Cir.
1982)). Hence, we dismiss the appeal as premature, with the
expectation that the district court will act expeditiously on the
pending PLRA motion.
I.
A. Background
This appeal originates from an action brought by the
United States in 1994 seeking to remedy dangerous and allegedly
unconstitutional conditions in Puerto Rico's juvenile correctional
facilities.1 The parties stipulated to a consent order the same
day the action was filed2 and, in 1997, they entered into a court-
approved settlement agreement calling for various remedial
measures, including increased staffing levels that were specified
in Paragraph 48 of the agreement. Although conditions in the
1
The action was brought against the Commonwealth, the
Juvenile Institutions Administration, and various individuals,
including the Governor and the directors of the juvenile
facilities. For convenience, we refer to the defendants
collectively as "the Commonwealth."
2
The court approved the order and entered a consent decree in
October 1994.
-3-
juvenile facilities improved somewhat over the next decade,
staffing remained a problem, and episodes of violence, injury, and
abuse continued. The Commonwealth nonetheless moved under the PLRA
to terminate prospective relief in March 2007.3 The ensuing
negotiations between the parties produced a joint request that the
court terminate certain provisions of the consent decree and
settlement agreement while retaining or modifying others. The
court accepted the proposal in an order issued on May 15, 2007.
Paragraph 48 of the agreement was modified to allow the defendants
to satisfy the staffing requirements either by meeting worker-to-
juvenile ratios applicable to all facilities or by developing
"alternate staffing rosters" for particular facilities that would
be subject to court approval.
The parties continued sparring over the Commonwealth's
failure to achieve the specified staff levels, however, and they
3
The Supreme Court in Miller v. French, 530 U.S. 327 (2000),
described the role of the PLRA, which was enacted in 1996:
[T]he PLRA establishes standards for the entry and
termination of prospective relief in civil actions
challenging conditions at prison facilities.
Specifically, a court "shall not grant or approve any
prospective relief unless the court finds that such
relief is narrowly drawn, extends no further than
necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the
violation of the Federal right." The same criteria apply
to existing injunctions, and a defendant or intervenor
may move to terminate prospective relief that does not
meet this standard.
Id. at 333 (citing 18 U.S.C. § 3626(a)(1)(A), (b)(2)).
-4-
again eventually resolved their differences through negotiation.
In November 2008, reasserting their joint goal "to ensure full
compliance with Paragraph 48," they moved the district court to
adopt their latest agreement requiring Puerto Rico to hire fifty
additional staff members each month "until Defendants achieve the
goal to provide adequate supervision of youth in all facilities."
The district court entered that stipulation as an order in January
2009 (the "January 2009 Order" or "the Order"). Six months later,
in July 2009, the United States moved for an order holding the
defendants in civil contempt because the Commonwealth had done no
hiring at all.
In defending against the contempt motion, the
Commonwealth explained that it was doing the best it could in light
of an unprecedented budget crisis that had not been anticipated
when the parties had agreed the previous November to retain the
Paragraph 48 staffing goals. The Commonwealth detailed the steps
it had taken in an attempt to comply with the January 2009 Order,
including requesting an exception to a government hiring freeze,
obtaining permission to use previously budgeted funds to retain one
hundred juvenile services officers who were in temporary positions,
closing some juvenile facilities, redistributing staff to improve
the staff-to-youth ratio, increasing the use of technology to
-5-
supervise juveniles in less restrictive environments, and seeking
new sources of funds.4
Simultaneously with its response to the contempt motion,
the Commonwealth moved under the PLRA and Federal Rule of Civil
Procedure 60(b)(5) to terminate or modify the prospective relief
provisions in the Order. See 18 U.S.C. § 3626(b)(4); Fed. R. Civ.
P. 60(b)(5).5 Modifications were necessary, the Commonwealth
explained, "to give the new administration flexibility in looking
for varied methods of complying with ¶ 48 and to be allowed to
creatively look for alternative ways of improving the youth-staff
ratio." The Commonwealth further asserted that, given its economic
circumstances, the fifty-hires-per-month requirement needed to be
modified because it was not a "'narrowly-drawn' remedy" and, hence,
was no longer appropriate under the PLRA. See 18 U.S.C. §
4
The Commonwealth had filed an Informative Motion in February
2009 apprising the court of its newly discovered fiscal problems.
It reported that the new administration had discovered a budget
deficit of more than $3 billion and explained that "[t]his
extremely dire economic emergency required immediate implementation
of drastic austerity measures." The governor had ordered a hiring
freeze on January 8, the same day the district court had approved
the stipulation, and defendants were awaiting a response to their
request for an exception so they could move toward meeting the
Paragraph 48 obligations. Meanwhile, defendants reported that they
were exploring "alternative means" to address those obligations.
5
Under Rule 60(b)(5), a party may be relieved from an order
if, inter alia, "applying it prospectively is no longer equitable."
To obtain relief from a consent decree under the Rule, a party must
"establish[] that a significant change in circumstances warrants
revision of the decree." Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367, 383 (1992).
-6-
3626(a)(1). Alternatively, the cross-motion sought outright
termination of the January 2009 Order. The defendants asserted
that they were already in "substantial compliance" with Paragraph
48 and would be in full compliance with the Order after adding one
hundred officers under a pending proposal relying on federal funds.
In response, the United States argued, inter alia, that
reports prepared by the court monitor indicated that compliance
with staffing levels had in fact declined in recent months. The
United States disputed the Commonwealth's contention that its
fiscal crisis was unanticipated when the parties renewed their
commitment to the Paragraph 48 levels in November 2008, and it
challenged the Commonwealth's assertion that budgetary constraints
made it impossible to meet the agreed-upon goals. The United
States further asserted that the staffing requirements were
consistent with the PLRA. It attributed the defendants' failure to
meet the requirements to "their unwillingness to comply and to
prioritize the safety of the youth confined within their juvenile
facilities."
Under the PLRA, a motion such as the Commonwealth's
seeking modification or termination of prospective relief triggers
an automatic stay of remedial measures if the motion remains
pending after 180 days. Id. § 3626(e)(2)(A)(ii). Once such a stay
takes effect, reinstatement requires a finding by the court that,
-7-
inter alia, "the prospective relief is narrowly drawn and the least
intrusive means to correct the violation." Id. § 3626(b)(3).6
With the 180-day period set to expire on January 31,
2010, the United States filed a motion on December 31, 2009
urgently requesting the court to grant the contempt motion "to
ensure that the Defendants sufficiently staff their juvenile
facilities to protect youth from harm." The United States cited
"the deteriorating staffing situation, the extreme dangers that
youth continue to face in understaffed facilities, and the
Defendants' chronic noncompliance with th[e] Court's staffing
orders," and it warned that a stay of the January 2009 Order
pursuant to the PLRA "will further exacerbate already dangerous
conditions in the facilities." The Commonwealth filed an
opposition on January 27, 2010, in which it detailed recent
improvements in its staffing ratios. Among other actions, the
Commonwealth had obtained approval from the Office of Management
and Budget to hire additional staff and replace departing staff.
6
Section 3626 provides for prospective relief with respect to
prison conditions "to correct the violation of the Federal right of
a particular plaintiff or plaintiffs." 18 U.S.C. § 3636(a)(1).
Section 3626(b)(3) states in full:
Prospective relief shall not terminate if the court makes
written findings based on the record that prospective
relief remains necessary to correct a current and ongoing
violation of the Federal right, extends no further than
necessary to correct the violation of the Federal right,
and that the prospective relief is narrowly drawn and the
least intrusive means to correct the violation.
-8-
It reported that forty-five new youth services officers would be
completing training on February 17, and recruitment was underway to
fill another 148 positions. Reassignments also had occurred as a
result of facility closings. In another filing in late February,
the Commonwealth reported that training was set to begin in March
for approximately fifty potential youth services officers.
The district court took no action on either the contempt
motion or the pending request to modify or terminate the January
2009 Order before 180 days had passed, and the prospective relief
provisions were thus stayed on January 31, 2010. Once the Order
was suspended, the contempt motion was effectively, if not
technically, stayed as well because its object was to coerce
immediate compliance with that Order. Nonetheless, without ruling
on the Commonwealth's cross-motion for modification or termination,
the district court on March 25 issued a one-paragraph order denying
the motion for contempt:
Having considered the United States'
Motion for an Order Holding Defendants in
Civil Contempt for Violation of the January 8
Stipulated Order on Staffing filed on July 2,
2009, the Commonwealth Defendants' Opposition
filed on August 4, 2009, the United States'
Memorandum in Reply filed on August 19, 2009
and the Commonwealth Defendants' Surreply
filed on October 2, 2009, said motion for
civil contempt is DENIED as the reasons
adduced by the Commonwealth defendants show
that they had been reasonably diligent in
attempting to fulfill what was required in the
Stipulated Order and their non-compliance with
the terms of said Order was not the result of
intentional actions and/or omissions.
-9-
(Docket entry numbers omitted.)
To date, the Commonwealth's cross-motion remains pending.
On appeal, the Commonwealth argues that the PLRA's automatic stay
rendered the contempt dispute moot at least until the district
court rules on the motion to modify or terminate the January 2009
Order, and it thus asserts that we may not now review the district
court's contempt ruling. To the extent the Order's possible
reinstatement makes the mootness doctrine inapplicable, the
Commonwealth argues that we would run afoul of the ripeness
doctrine if we reviewed the contempt ruling before the district
court decides whether to reactivate the Order. The United States
counters that so long as the Order remains in place – albeit stayed
– it is proper for us to review the Commonwealth's compliance with
it.
As the following discussion reveals, the Commonwealth has
the better argument.
B. The Motion for Contempt and the PLRA
Unlike criminal contempt, which has a punitive function,
civil contempt is imposed either to coerce compliance with a court
order or to compensate a party harmed by non-compliance. McComb v.
Jacksonville Paper Co., 336 U.S. 187, 191 (1949); United States v.
United Mine Workers, 330 U.S. 258, 303-04 (1947); United States v.
Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005). The United States did
not seek compensatory relief. Thus we focus solely on the contempt
-10-
sanction's purpose to "induce the purging of contemptuous conduct,"
In re Kave, 760 F.2d 343, 351 (1st Cir. 1985) (emphasis omitted).7
A finding of civil contempt ordinarily involves proof
that the alleged contemnor had notice that he was subject to a
"clear and unambiguous" order, that compliance is possible,8 and
that the order was in fact violated. Saccoccia, 433 F.3d at 27
(quotation marks and internal citation omitted). There can be no
dispute here that the Commonwealth was aware of the January 2009
Order and failed to comply with it. The parties' debate concerns
the Commonwealth's ability to comply and, relatedly, whether the
terms of the Order continue to be an appropriate response to the
conditions in the juvenile facilities.
7
The United States argued in its memorandum in support of its
motion for civil contempt that "a coercive monetary penalty is
necessary to ensure compliance with the January 8 Stipulated
Order." It requested a fine "equal to the monthly cost of
maintaining fifty direct care staff," with the amount to diminish
as the defendants achieved compliance with the ordered staffing
ratios.
8
The alleged contemnor bears the burden of production in
defending a contempt motion based on inability to comply with the
terms of the order in question. United States v. Rylander, 460
U.S. 752, 757 (1983); see also Maggio v. Zeitz, 333 U.S. 56, 75-76
(1948) ("[I]f he offers no evidence as to his inability to comply
with the . . . order, or stands mute, he does not meet the issue.
Nor does he do so by evidence or by his own denials which the court
finds incredible in context."); Star Fin. Servs., Inc. v. AASTAR
Mortg. Corp., 89 F.3d 5, 13 (1st Cir. 1996) ("While good faith will
not excuse civil contempt, impossibility of compliance does
constitute a defense."); Fortin v. Comm'r of Mass. Dep't of Pub.
Welfare, 692 F.2d 790, 796 (1st Cir. 1982) ("[I]mpossibility would
be a defense to contempt, but the [defendant] had the burden of
proving impossibility, and that burden is difficult to meet."
(citations omitted)).
-11-
As we have explained, however, the January 2009 Order has
been stayed. Hence, there presently is no justification for a
coercive sanction to induce the Commonwealth's compliance with that
Order. The United States insisted at oral argument that we
nonetheless may review the district court's denial of such a
sanction because the Order has only been suspended, not abrogated,
and the issue of contempt is consequently not moot "yet." That
argument, however, collapses of its own weight. If the Order were
certain to reactivate at some future time, we would agree that we
could perform our review now in anticipation of its future
resumption.
Where reactivation is neither automatic nor inevitable,
however, any decision we reach may be without purpose or effect.
See Miller, 530 U.S. at 354 (Breyer, J., dissenting) (noting that,
once an injunction governing prison conditions is automatically
stayed, it would "regain[] life only if, when, and to the extent
that the judge eventually decided to deny the PLRA motion"). Such
a contingent ruling would transgress the prudential considerations
underlying the ripeness doctrine, including "the policy of judicial
restraint from unnecessary decisions," McInnis-Misenor v. Me. Med.
Ctr., 319 F.3d 63, 70 (1st Cir. 2003), and, given the contingency,
may turn out to be an impermissible advisory opinion. See City of
Fall River, Mass. v. F.E.R.C., 507 F.3d 1, 6 (1st Cir. 2007) ("[A]
'claim is not ripe for adjudication if it rests upon contingent
-12-
future events that may not occur as anticipated, or indeed may not
occur at all.'" (quoting Texas v. United States, 523 U.S. 296, 300
(1998)) (internal quotation marks omitted))9; see also Steir v.
Girl Scouts of the USA, 383 F.3d 7, 16 (1st Cir. 2004)("A court
cannot hear an action that loses 'its character as a present, live
controversy of the kind that must exist if we are to avoid advisory
opinions on abstract propositions of law.'" (quoting Hall v. Beals,
396 U.S. 45, 48 (1969) (per curiam))).
Indeed, as the United States acknowledges, the
Commonwealth's defense to the United States' request for a contempt
sanction overlaps with its argument that the requirements of the
January 2009 Order are no longer appropriate under the PLRA. The
defendants cite their limited financial resources both to explain
9
Ordinarily, "[t]wo factors are used to evaluate ripeness:
'the fitness of the issues for judicial decision and the hardship
to the parties of withholding court consideration.'" Doe v. Bush,
323 F.3d 133, 138 (1st Cir. 2003) (quoting Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967)). Here, there will be no change in the
United States' ability to secure enforcement of the January 2009
Order until the district court rules on the motion to modify or
terminate the Order, and there is thus no "hardship" in the
relevant sense in delaying appeal of the contempt ruling until
after that decision is made. Because the Order is stayed, any
ongoing hardship to the juveniles residing in the facilities is not
the issue before us.
The fitness question turns not only on "'whether a court is
capable of resolving a claim intelligently, but also involves an
assessment of whether it is appropriate for the court to undertake
the task.'" Id. at 139 (quoting Ernst & Young v. Depositors Econ.
Prot. Corp., 45 F.3d 530, 537 (1st Cir. 1995)). The contingent
nature of the issue is one reason why our review is not appropriate
at this time. See McInnis-Misenor, 319 F.3d at 72 ("[T]hat the
future event may never come to pass augurs against a finding of
fitness."). As we explain infra, it is not the only reason.
-13-
their inability to meet the staffing requirements of the January
2009 Order and to substantiate their contention that fifty-hires-
per-month is neither "narrowly drawn" relief nor the "least
intrusive means to correct the violation" of federal rights. See
18 U.S.C. § 3626(b)(3). The Commonwealth argues that the
defendants should be allowed to work toward the staffing goals by
alternative means, and it invokes the "creative efforts" it already
has made – for example, consolidating facilities and obtaining
outside funding – to demonstrate its good faith in complying with
the spirit of the January 2009 Order.
We offer no view as to whether the Commonwealth's
arguments have force either in defending against the contempt
motion or showing a need for partial or full release from the
January 2009 Order. The relevant considerations for our purposes
are that those two issues are intertwined, and the one that is
before us – the contempt ruling – may disappear with the district
court's decision on the other. Moreover, even if the appeal were
technically neither moot nor unripe, it would make no sense for us
to review the district court's brief contempt ruling at this
juncture. The court's yet-to-come ruling on the motion to modify
or terminate the January 2009 Order will necessarily clarify and
elaborate on the reasons it denied contempt sanctions. We urge the
district court to make that ruling in short order. See Miller, 530
U.S. at 333 (noting that the PLRA "requires courts to rule
-14-
'promptly' on motions to terminate prospective relief"); 18 U.S.C.
§ 3626(e)(1). Accordingly, the United States' appeal must be
dismissed.
So ordered.
-15-