UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OSCAR SALAZAR, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 93-452 (GK)
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
MEMORANDUM OPINION
The District of Columbia has filed a Motion to Vacate the Court’s Order Granting Injunctive
Relief Dated October 18, 2004 (“Motion to Vacate the Dental Order”) [Dkt. No. 1153]. Upon
consideration of the Motion, Opposition, Reply, Surreply, Supplemental Brief, the many exhibits
submitted by the parties, and the long, tangled, and complex history of this important case which
focuses on the provision of medical services to poor children in the District of Columbia,
Defendants’ Motion is denied.
I. PROCEDURAL HISTORY
In 1993, Plaintiffs brought this far-reaching class action to provide and arrange for a range
of medical services, guaranteed under the federal Medicaid statute, 42 U.S.C. § 1396, et seq., to poor
children in the District of Columbia. During lengthy pre-trial proceedings before Judge Norma
Holloway Johnson, to whom the case was originally assigned, discovery was completed, and many
motions (both dispositive and non-dispositive) were decided. Thereafter the parties settled several
claims prior to trial with the help of a mediator appointed under the Court’s Alternative Dispute
Resolution Program.
In July of 1994, the case was re-assigned to this Judge. After a seven-day trial in April of
1996, this Court issued a 56-page opinion finding Defendants to be in violation of several provisions
of the Medicaid statute. See Salazar v. District of Columbia, 954 F. Supp. 258, 334 (D.D.C. 1996).
By the time of trial, many of the issues pled in the original Complaint had been substantially
narrowed and the trial itself focused primarily on whether Defendants were complying with the
statute’s requirement to provide EPSDT services (“early and periodic, screening, diagnostic, and
treatment services”) to children entitled to them. Since that time, the parties have focused virtually
all their attention on the EPSDT issue.
The District of Columbia took an appeal from the decision. On the eve of oral argument in
the Court of Appeals, the parties entered into a detailed and complex agreement. A public hearing
was held. On January 25, 1999, after various proceedings, the Court approved and entered the
parties’ final settlement as an Order Modifying the Amended Remedial Order of May 6, 1997 and
Vacating the Order of March 27, 1997 (“the Settlement Order”) [Dkt. No. 663]. Since that date,
January 25, 1999, the Settlement Order, which contains several provisions relating to dental services
for class members, has been the governing document in this case.1
On April 23, 2004, Plaintiffs filed a Motion to Enforce the Settlement Order of January 25,
1999 and the Order of February 28, 2003, Concerning Dental Services [Dkt. No. 1010]. After full
briefing, on October 18, 2004, the Court granted the Motion in large part and issued its
Memorandum Opinion and Dental Order (“Dental Order of October 18, 2004” or “ Dental Order”)
[Dkt. No. 1034]. The District of Columbia took an appeal on December 4, 2004; however, on
1
Over the years, the parties have agreed upon a number of relatively minor and
technical changes to the Settlement Order. Those changes have always been incorporated into the
Settlement Order by Consent Orders.
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January 27, 2005, it requested the Court of Appeals to hold its appeal in abeyance as it “expect[s]
to file in the near future a motion [in the district court] to dissolve that injunction.” Motion to Hold
Appeal in Abeyance, Court of Appeals, District of Columbia Circuit, No. 04-7200. No such motion
was ever filed in this Court. On December 2, 2005, the District of Columbia withdrew its appeal of
the Dental Order.
On May 26, 2006, the District of Columbia filed the present Motion to Vacate the Dental
Order. Plaintiffs filed their Opposition on July 7, 2006, Defendants replied on September 12, 2006,
Plaintiffs filed a Sur-Reply on December 14, 2006 and a Supplemental Brief on April 4, 2008. Oral
argument was held on January 12, 2007.2
2
The Court is well aware that the District of Columbia has filed a Petition for
Mandamus in the Court of Appeals because its Motion to Vacate has not been decided. That is
certainly its procedural right, and the Court understands and sympathizes with its desire to resolve
as soon as feasible the extent and scope of the Government’s obligation to provide dental care to
class members.
However, in brief explanation of what has admittedly been a very lengthy delay, the Court
must note that the underlying Dental Order, the enforcement issues relating to it, and the Motion to
Vacate, have never been ignored. There have been extensive and frequent informal discussions with
the parties, the Court’s Monitor Dr. Henry T. Ireys, and the Court, about resolution of the substantive
issues, of the administrative difficulties in carrying out the provisions of the Dental Order, and of
the profound technical problems concerning measurement of compliance with the Dental Order as
well as with other provisions of the Settlement Order. Dr. Ireys has issued three reports regarding
dental services in the District of Columbia. See June 17, 2003, Methods Used by the District of
Columbia and the Managed Care Organizations to Inform Medicaid Recipients about Preventive
Dental Services; January 27, 2006 Strategy to Achieve Implementation of Paragraph 2 of the Dental
Order of October 18, 2004; and February 2008 Report on the District of Columbia’s EPSDT
Program with a focus on dental services for children. On page 1 of the 2006 Report, Dr. Ireys noted
that the “parties in this case agree that the majority of children in the District of Columbia’s EPSDT
program are not receiving adequate dental care.” He also stated at page 1 that according to official
reports which Defendants have filed with the federal Government (although the parties have always
acknowledged that the accuracy of these official reports is questionable), “73 percent of the EPSDT-
eligible children aged 3 to 20 years received no preventive dental care and 68 percent received no
dental services at all” (emphasis added).
(continued...)
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II. ANALYSIS
In its Motion to Vacate, the Defendants argue that the Dental Order is not supported by
evidence that the Settlement Order was violated or that the District of Columbia has failed to provide
and arrange for appropriate dental services when requested, and that the injunctive relief ordered is
not tailored to cure a Constitutional or statutory violation. In addition, the Defendants make the
curious argument that by mandating the provision of dental services which are required by the
Medicaid statute, the Dental Order is “imping[ing] upon the free will of the Medicaid recipient to
force dental care participation. The District cannot and should not be ordered to ensure that every
District child who may be eligible for EPSDT services actually receive these services.” Mot. to
Vacate, at 8.
A. There Is No Federal Rule of Civil Procedure Authorizing Defendants’ Motion
at this Late Date, More than 19 Months after Entry of the Dental Order
Defendants have failed, in their opening Motion papers, to cite any authority whatsoever
under either the Federal Rules of Civil Procedure or case law which would authorize the filing of
their Motion to Vacate the Dental Order, more than 19 months after its entry. They had numerous
opportunities to seek reconsideration, reversal, or modification of the Order and failed to do so. It
is now simply too late, because of Defendants’ inexplicable delay, to relitigate issues which were
fully briefed and decided more than five years ago.
2
(...continued)
At times the parties -- sometimes on their own and sometimes with Dr. Ireys’ help -- have
made good faith efforts to resolve their differences. The Court strongly encouraged all of the parties’
informal efforts because of the complexity of the compliance issues, the importance of providing
such services to the children of the District of Columbia who are eligible for them and are not
receiving them, and its belief that it was far better for the parties to craft a solution they could live
with rather than have one imposed on them by court order. All of these efforts took time.
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In their Reply to Plaintiffs’ procedural arguments, Defendants argue, for the first time, that
“resulting orders [from motions to enforce a consent decree] do not take on the character of a
judgement” and therefore the Court has “equitable power” to vacate them for reasons not specifically
provided in the Federal Rules of Civil Procedure. There is no legal support for that proposition, nor
would the facts justify its application in this instance if such legal support existed.
1. The Federal Rules of Civil Procedure
An examination of those Federal Rules which might authorize the Motion to Vacate
demonstrates why Defendants have failed to cite any of them: Defendants have failed to meet their
requirements.
a. Rules 52 and 59
Rule 52(b) allows a party to file a motion to amend a court’s findings, but such motion must
be “filed no later than 10 days after the entry of judgment.”3 District of Columbia v. Stackhouse,
239 F.2d 62, 65 (D.C. Cir. 1956). See Harvest v. Castro, 531 F.3d 737, 745 n. 5 (9th Cir. 2008);
Verma v. United States, Civ. No. 87-2294, 1992 WL 611259, at *1 (D.D.C. Aug. 26, 1992).
Obviously, filing the Motion 19 months after entry of judgment fails to meet the 10-day requirement.
Moreover, use of Rule 52 cannot be a substitute for an appeal. “A party who failed to prove his [or
her] strongest case is not entitled to a second opportunity to litigate a point, to present evidence that
was available but not previously offered, or to advance new theories by moving to amend a particular
finding of fact or conclusion of law.” 9C Wright, et al., Federal Practice and Procedure, § 2582 (3d
ed. 2009). Guiterrez v. Ashcroft, 289 F. Supp. 2d 555, 561 (D.N.J. 2003).
Nor can Defendants rely on Rule 59. Once again, the Rule provides that any motion to alter
3
In 2009, the deadline was extended to 28 days. Fed. R. Civ. P. 52(b).
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or amend a judgment “must be filed no later than 10 days after entry of the judgment.”4 Fed. R. Civ.
P. 59(e). Again, Defendants failed to meet the 10-day requirement. As with Rule 52, Rule 59
motions “[m]ay not be used to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.” 11 Wright, et al., Federal Practice and
Procedure, § 2810.1 (2d ed. 2009). Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2617 n. 5 (2008);
Kattan by Thomas v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993); Klayman v. Judicial
Watch, Inc., Civ. No. 06-670, 2007 WL 1034936, at *2-3 (D.D.C. Apr. 3, 2007); United States v.
Western Elec. Co., Inc., 690 F. Supp. 22, 25 (D.D.C. 1988).
Thus, neither Rule 52 nor Rule 59 can support the filing of the Motion to Vacate. Defendants
have missed the filing deadlines, and are making the same arguments which they made -- and lost--
in the underlying Motion to Enforce.
b. Rule 60
Rule 60(b) provides six potential avenues for relief for Defendants, none of whose
requirements they can satisfy. Above all, Rule 60(b), like Rules 52 and 59 “is not a substitute for
appeal, and motions under the rule have been denied when made to avoid the party’s decision to
settle the litigation or forego an appeal, after a deliberate dismissal, or when the defendant
voluntarily elects not to appeal.” 11 Wright, et al., Federal Practice and Procedure, § 2851 (2d ed.
2009) (emphasis added). Here, the District of Columbia chose to appeal the Order, as is its right,
and then voluntarily chose to seek a stay from the Court of Appeals until it could file some unnamed
motion with this Court, never filed any such motion, and then voluntarily chose to dismiss its appeal.
Such actions are hardly within the purview of Rule 60(b) which, in addition to precluding its use as
4
In 2009, the deadline was extended to 28 days. Fed. R. Civ. P. 59(b).
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a substitute for appeal, also requires that such motions be filed “within a reasonable time” and
“within a year after the entry of the judgment” for motions brought pursuant to Rule 60(b)(1), (2),
and (3). See Ackermann v. United States, 340 U.S. 193, 198 (1950); Twelve John Does v. District
of Columbia, 841 F.2d 1133, 1141 (D.C. Cir. 1988); Friedman v. Wilson Freight Forwarding Co.,
320 F.2d 244, 247 (3d Cir. 1963) (failure to raise an available contention by a direct appeal, followed
by an attempt to litigate the matter under Rule 60(b), is not a proper use of that Rule).
Plainly, Subsections 1-4 of Rule 60(b) do not apply; nor do Defendants assert that any of
these provisions do apply.
Rule 60(b)(5) authorizes a motion for relief from a final judgment when “applying it
prospectively is no longer equitable.” Rule 60(b) motions “shall be made within a reasonable time.”
As recently as last year, in Horne v. Flores, 129 S. Ct. 2579, 2596-97, (2009) the Supreme Court re-
affirmed the vitality of Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 368 (1992), the leading
case setting forth the standards for modifying a final judgment under Rule 60(b)(5) in institutional
reform cases.
In Rufo, the Supreme Court held that the “party seeking modification of a consent decree”
bears the burden of establishing “that a significant change in facts or law warrants revision of the
decree and that the proposed modification is suitably tailored to the changed circumstance.” Id. at
393. In discussing Rufo, the Flores opinion noted that “[s]atisfaction of an earlier judgment is one
of the enumerated bases for Rule 60(b)(5) relief,” although it made clear that it was not the only basis
for such relief. Flores, 129 S. Ct. at 2597 (emphasis in original).
In particular, the Supreme Court in Rufo explained that Rule 60(b)(5) does not authorize
relief just because “ it is no longer convenient to live with the terms of a consent decree.” Id. at 383.
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Nor, it continued, should modification ordinarily be granted when a party relies upon events that
were anticipated when the decree was entered. Id. at 385.
Rather, the Rufo Court carefully delineated the three conditions under which modification
of a consent decree under Rule 60(b)(5) may be appropriate: (1) “when changed factual conditions
[or law] make compliance with the decree substantially more onerous,” (2) “when a decree proves
to be unworkable because of unforeseen obstacles,” or (3) “when enforcement of the decree without
modification would be detrimental to the public interest.” Id. at 384.5 Defendants do not argue that
any of the conditions have been met -- because they cannot.
5
It is true that Rufo involved modification of a consent decree, whereas in this case
Defendants seek modification of a final court order entered in order to achieve compliance with the
underlying consent decree (the Settlement Order). However, there is nothing in Rufo to suggest that
its Rule 60(b)(5) requirements would not apply to the procedural posture of this case. Indeed, the
Court specifically noted that consent decrees are agreements that “will be reflected in, and be
enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments
and decrees.” Id. at 378.
While Defendants argue that there is a distinction between an order enforcing a consent
decree and the consent decree itself, and that the Court has the “inherent equitable authority to
interpret and enforce the consent decree outside the context of Rule 60,” Defs.’ Reply, at 2, they cite
only one case for that proposition, Pigford v. Veneman, 292 F.3d 918, 923 (D.C. Cir. 2002).
However, that case says nothing of the kind. Rather, it says that “[d]istrict courts possess two types
of authority over consent decrees. First, they may interpret and enforce a decree to the extent
authorized either by the decree or by the related order . . . . Second, they may modify a decree
pursuant to Federal Rule of Civil Procedure 60(b)(5).” Pigford, 292 F.3d at 923 (citing Rufo, 502
U.S. at 378-79). There is no mention in Pigford of the “inherent equitable authority to interpret and
enforce the consent decree outside the context of Rule 60.” Quite the contrary -- Pigford reversed
the district court’s grant of a Rule 60(b)(5) motion and held that “the district court’s interpretive and
enforcement authority depends on the terms of the decree and related court order, rather than on
some ‘ancillary’ or ‘inherent power.’” Pigford, 292 F.3d at 925.
Defendants also argue that the Dental Order is a modification of the Settlement Order. That
is simply not correct. The Dental Order resulted from Plaintiffs’ Motion to Enforce the Settlement
order of January 25, 1999 and the Order of February 28, 2003 Concerning Dental Services. It was
what it was titled -- a Motion to enforce Paragraph 37 of the Settlement Order, not to modify it.
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First,6 there is no question that there has been no change in conditions “which would make
compliance with the decree substantially more onerous.” Defendants have always known that the
District of Columbia’s poor children were not getting anywhere near the amount of preventive dental
care or treatment to which they were entitled (albeit there have always been great difficulties in
obtaining truly reliable and accurate data about the number of visits children made for both kinds
of services). See January 27, 2006 Strategy to Achieve Implementation of Paragraph 2 of the Dental
Order of October 18, 2004 (“January 27, 2006 Ireys Report”), at 1, 14, 22. Defendants have also
always known that there was an insufficient number of pediatric dentists either available or willing
to treat Medicaid children, and that certain actions, such as raising reimbursement rates, would have
to be taken to ameliorate that problem. Id., at 5-8. Finally, Defendants have also always known that
parents, custodians, and guardians of the children would have to be educated about the importance
of routine preventive care, and that substantial outreach would be necessary to accomplish that task.
Id., at 8-10.
In short, Defendants point to no new facts or conditions which would meet the Rufo
definition of “changed factual conditions” so as to “make compliance with the decree substantially
more onerous.” Rufo, 502 U.S. at 384.
Second, Defendants point to no “unforeseen obstacles” which would make enforcement of
the Dental Order “unworkable.”7 Again, the obstacles already discussed have existed for many,
many years in the District of Columbia. For example, we have not suddenly lost a substantial
6
It is undisputed that there has been no change in the governing Medicaid statute or
any possibly relevant case law.
7
The Defendants concede that “[i]t is a fact that utilization rates are not what the Court,
Plaintiffs or the District would like.” Defs.’ Mot. to Vacate, at 16.
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number of pediatric dentists who are willing to treat class members -- a situation which could,
arguably, fall under this exception to the general rule. Nor, it must be noted, does the District of
Columbia base its Motion to Vacate on such a justification.
Third, the Rufo opinion does state that modification of a consent decree is appropriate where
its enforcement “would be detrimental to the public interest.” Rufo, 502 U.S. at 384. Can the
Government really be arguing that it would be “detrimental to the public’s interest” to ensure that
poor children see a dentist once a year for preventive cleanings (as the Dental Order provides) and
obtain treatment if needed? See ¶ 49 of the Dental Order.8
While the District of Columbia does not base its Motion to Vacate on this justification, it
does raise an argument which might -- conceivably -- fit under this rubric. The District of Columbia
paints an Orwellian picture in which enforcement of the Dental Order would require a paternalistic
and authoritarian government to, literally, force unwilling parents to present their children for
preventive dental care and treatment. Such conduct, the Defendants argue, would interfere with the
parents’ right to participate or not participate in the EPSDT program and substitute the
Government’s judgment for that of parents. Defs.’ Mot. to Vacate, at 8, 19; Defs.’ Reply, at 9-10.
This picture is patently ridiculous. There is not a word in the Dental Order which would interfere
with parents’ Constitutional rights to make medical decisions for their children or to force them to
take advantage of dental services that are being made available.
What the Dental Order does do is enforce, with great specificity, Paragraphs 36, 49, 52, and
8
It must be remembered that District of Columbia law requires the Mayor to establish
requirements for periodic dental examinations for children entering school and to develop the
necessary standard forms for documenting the results of the oral health assessments. D.C. Code §
38-602 (2009).
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57 of the underlying Settlement Order. There can be no question that the Court has such authority.
Beckett v. Air Line Pilots Ass’n, 995 F.2d 280, 286 (D.C. Cir. 1993) (it is a “well-established
principle that a trial court retains jurisdiction to enforce consent decrees and settlement agreements”).
Even if a party is able to satisfy one of the three conditions under which Rufo allows
modification of a consent decree, it must then show that the proposed modification is suitably
tailored to the changed circumstance. Rufo, 502 U.S. at 383. Putting aside the fact that there are no
such changed circumstances in this case, it is clear that the Defendants’ proposal to vacate the Dental
Order in its entirety is certainly not “suitably tailored” to enforcement of the provisions of the
Settlement Order. Plaintiffs correctly state that granting Defendants’ Motion to Vacate the entire
Dental Order “would result in the perpetuation of the District’s violation of federal EPSDT law and
paragraph 36 of the Settlement Order.” Pls.’ Opp’n, at 13.
Finally, Rule 60(b)(5) motions must also be made “within a reasonable time.” In a case with
a procedural posture similar to ours, the Court of Appeals for this Circuit held that a subsequent
motion to vacate was properly dismissed as “sixteen months is not ‘a reasonable time’ under these
circumstances.” Gilmore v. Hinman, 191 F.2d 652, 652-653 (D.C. Cir. 1951). Given the
circumstances of this case, where an appeal was filed in a timely manner, but then, at the request of
the Defendants, was allowed to linger for 10 months before being withdrawn, with a total of 19
months elapsing between the issuance of the Dental Order and the filing of the present Motion, the
Motion is clearly untimely. What is particularly disturbing is the failure of Defendants to provide
any justification or explanation for their extended delay. The 19-month delay, combined with the
total lack of explanation, establish that the Motion was not made “within a reasonable time.”
Rule 60(b)(6) is a catch-all provision providing that a motion for modification may be made
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for “any other reason that justifies relief.” The Supreme Court has held that only exceptional or
extraordinary circumstances can justify relief under this subsection of Rule 60. Ackermann v.
United States, 340 U.S. 193, 199-202 (1950); Twelve John Does, 841 F.2d at 1141. As already
discussed, Defendants have cited no such exceptional or extraordinary circumstances which would
justify vacating the Dental order.
Moreover, just as with the other subsections of Rule 60, the moving party can not avoid the
consequences of its failure to appeal “because hindsight seems to indicate to him that his
decision not to appeal was probably wrong,” Ackermann, 340 U.S. at 198. See also 11 Wright, et
al., Federal Practice and Procedure, § 2864 (2d ed. 2009) (“[I]t ordinarily is not permissible to use
this motion to remedy a failure to take an appeal.”).
Thus, for all the foregoing reasons, none of the provisions of Rule 60 authorize the bringing
of this Motion to Vacate 19 months after issuance of the Dental Order.
B. Defendants’ Arguments Have Been Previously Made and Rejected by the Court
Virtually all the arguments made by Defendants in their Motion to Vacate the Dental Order
were made, examined, and rejected in the Court’s Opinion of October 18, 2004, granting Plaintiffs’
Motion to Enforce the Settlement Order as to dental services.
Specifically, Plaintiffs argued that Defendants were in violation of Paragraph 36 of the
Settlement Order and Defendants denied it. The Court ruled, at pp. 5-6 of its Opinion, that
Defendants’ argument was unpersuasive, and squarely rejected their argument that the Medicaid
statute was not violated because the District of Columbia had never refused to provide dental
services “when requested.”
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In addition, the Defendants argued that the Court had no discretion to enter those provisions
of the proposed Order requiring development of a dental periodicity schedule, development of a
comprehensive and detailed Corrective Action Plan to remedy the violations of Paragraph 36 of the
Settlement Order, and preparation of an annual oral health assessment of EPSDT-eligible children
which would identify the number of such children who had received preventive care and treatments.
The Court ruled, at pp. 7-15 of its Opinion, that it had authority to issue such an order to
enforce the Settlement Order (citing Frew v. Hawkins, 540 U.S. 431, 439 (2004) and Beckett, 955
F.2d at 286), and that the provisions proposed by Plaintiffs were appropriate to remedy the failure
to comply with the underlying Settlement Order.
C. The Court Has Authority to Order Relief Exceeding Federal Statutory and/or
Administrative Agency Standards and Had Authority to Issue the Dental Order
The one new argument that Defendants make in their Motion is that the Dental Order should
be vacated because the relief mandated exceeds the federal standards established by the Centers for
Medicare and Medicaid Services (“CMS”).
Defendants are correct that there is no federally-established mandate regarding utilization
rates of dental services. The Department of Health and Human Services has set a specific national
“goal” of a 57% participation rate for preventive dental services by this year, 2010. Obviously, this
goal is much lower than the participation rates contained in the Dental Order.
The simple answer to Defendants’ argument is provided in Frew. Because the Settlement
Order embodies an agreement between the parties, they are held to complying with that voluntarily-
entered into agreement.9 As the Supreme Court said in Frew, in words particularly applicable to the
9
Paragraph 79 of the Settlement Order clearly provides that this Court “shall retain
(continued...)
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facts of this case:
The decree does implement the Medicaid statute in a highly detailed
way, requiring the state officials to take some steps that the statute
does not specifically require. The same could be said, however, of
any effort to implement the general EPSDT statute in a particular
way. The decree reflects a choice among various ways that a State
could implement the Medicaid Act. As a result, enforcing the decree
vindicates an agreement that the state officials reached to comply
with federal law.10
540 U.S. at 439.
III. CONCLUSION
This Court fully recognizes that district courts must “defer to local government
administrators who have the ‘primary responsibility for elucidating, assessing and solving’ the
problems of institutional reform.” Rufo, 502 U.S. at 392. Throughout the very long pendency of
this case, the Court has consistently tried to work with the parties on a collaborative, rather than
adversarial, basis because of the practical administrative problems in enforcing the Settlement Order.
That approach has been moderately successful until changes were made in the leadership of the
Attorney General’s Office.11
As to the pending Motion, the bottom line is that the Defendants have failed to establish any
change in circumstances, no less significant ones, which would warrant vacating the Dental Order,
as the Supreme Court mandated in Rufo and just this past year in Flores.
9
(...continued)
jurisdiction of this matter to make any necessary orders enforcing or construing this Order.”
10
See also cases cited in Pls.’ Opp’n, at 20-21.
11
The overwhelming problem, as noted in this Opinion, has been the seemingly
unsolvable inability to obtain reliable data regarding compliance with the Settlement Order.
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The Defendants have presented all their arguments in previous proceedings and they have
been rejected. Defendants had an opportunity to further test the strength of those arguments before
the Court of Appeals and, inexplicably, after waiting ten months, chose to withdraw their appeal.
They have presented no explanation for this tactical decision. As the Supreme Court said in
Ackermann, 340 U.S. at 199, the litigant’s “choice was a risk, but calculated and deliberate . . . .
There must be an end to litigation someday, and free, calculated, deliberate choices are not to be
relieved from.”
For all the reasons set forth herein, the Court concludes that there is no justification -- no
change in the law or the facts, no unforeseen obstacles which have made the Order unworkable, and
no evidence that its enforcement would be detrimental to the public interest -- that would support
vacating the Dental Order. Consequently, Defendants’ Motion to Vacate is denied.
February 18, 2010 /s/
Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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