A. LaShawn v. Barry Jr. Marion S.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 1998 Decided June 2, 1998

No. 94-7227

LaShawn A., By her next friend, Evelyn Moore, et al.,

Appellees

v.

Marion S. Barry, Jr., Mayor, As Mayor of the District of

Columbia, et al.,

Appellants

Consolidated with

Nos. 94-7251, 95-7141, 95-7180, 95-7215, 96-7002, 96-7234

-----------

Appeals from the United States District Court

for the District of Columbia

(89cv01754)

Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, argued the cause for appellants, with whom John M.
Ferren, Corporation Counsel, Charles L. Reischel, Deputy

Corporation Counsel, and Donna M. Murasky, Assistant
Corporation Counsel, were on the briefs.

Marcia Robinson Lowry argued the cause for appellees,
with whom Craig R. Levine and Arthur B. Spitzer were on
the brief.

Before: Wald, Silberman, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: The Mayor of the District of
Columbia and other District government officials (collectively,
the District), challenge seven orders issued by the district
court related to its appointment of receivers to manage the
District's child welfare system. The focus of their challenge
is an order which empowers the general receiver to disregard
District law to the extent that it unreasonably interferes with
the discharge of her responsibilities. Because that order is
too broad, we remand it to the district court. The balance of
the appeals are moot.

I.

Nine years ago, appellees filed this case on behalf of two
groups of District children: (1) those in the District's foster
care system and (2) those known to the District to be in
danger of abuse or neglect. Seeking injunctive relief, they
alleged widespread violations of these children's rights under
the Constitution as well as various federal and District stat-
utes. Following a lengthy trial, the district court, in 1991,
concluded that the evidence presented in the case was "noth-
ing less than outrageous" and that "[t]he District's dereliction
of its responsibilities to the children in its custody [was] a
travesty." LaShawn A. v. Dixon, 762 F. Supp. 959, 998
(D.D.C. 1991). The court determined that, due to inept
management and the indifference of the mayor's administra-
tion, "the District had failed to comply with reasonable pro-
fessional standards in almost every area of its child welfare
system." Id. at 997. With respect to children outside of the
foster care system, the District failed to investigate reports of
abuse or neglect in a timely manner or provide needed

services. Id. at 989. And once children entered the foster
care system, it did not place them appropriately, monitor
their care, or adequately ensure permanent homes. As a
result, the District failed to protect the children in its custody
from physical, emotional, and psychological harm. Id. at 996.

The court held District officials liable under 42 U.S.C.
s 1983 (1988) for both constitutional and federal statutory
violations. It concluded that the District had deprived chil-
dren in its foster care system of their due process rights
under the Fifth Amendment, and that the District had
abridged both groups of children's rights under two statutes:
the Adoption Assistance and Child Welfare Act of 1980, 42
U.S.C. ss 620-27 and ss 670-79 (1988), and the Child Abuse
Prevention and Treatment Act, 42 U.S.C. ss 5101-5106
(1988). It further determined that the District had violated
various local statutes and regulations that conferred constitu-
tionally protected liberty interests 1 whose deprivation, with-
out due process, violated s 1983.

The parties agreed, after lengthy negotiations, to an 84-
page remedial consent decree approved by the district court
which regulated every aspect of the District's child neglect
and foster care system. The District, however, expressly
reserved the right to appeal the district court's judgment of
liability; to the extent that any part of the district court's
opinion was vacated on appeal, the portions of the remedial
order directly based on that part of the opinion would become
"null and void."

The District appealed, attacking the constitutional and
federal statutory basis of the district court's judgment. We
noted, however, that the District of Columbia's statutory
scheme for "the protection and care of foster children, and

__________
1 The pertinent District laws were the Prevention of Child
Abuse and Neglect Act of 1977, D.C. Code Ann. ss 2-1351 to -1357,
ss 6-2101 to -2107, ss 6-2121 to -2127, and ss 16-2351 to -2365
(1991); the Youth Residential Facilities Licensure Act of 1986, D.C.
Code ss 3-801 to -808 (1991); and the Child and Family Services
Division Manual of Operations (September 1985).

children reported to be abused or neglected [was] equally as
comprehensive as that provided by the federal statutes...."
LaShawn A. v. Kelly, 990 F.2d 1319, 1324 (D.C. Cir. 1993)
("LaShawn I"). While the district court had concluded that
the local statutes in question created liberty interests, the
deprivation of which was actionable under s 1983, we held
that District statutes themselves created "a private cause of
action for children in foster care and for children reported to
have been abused or neglected but not yet in the District's
custody." Id. at 1325. As the district court's judgment
appeared to be independently supportable by local law, we
circumvented the constitutional and federal statutory ques-
tions and directed the district court "to fashion an equally
comprehensive order based entirely on District of Columbia
law, if possible." Id. at 1326. If the district court deter-
mined, on remand, that certain portions of the consent decree
depended entirely on a federal statute, we instructed it to
consider the impact of the Supreme Court's intervening deci-
sion in Suter v. Artist M., 503 U.S. 347 (1992) 2 before it
included such provisions in a revised remedial order.

The district court simply deleted all references to federal
law and readopted the consent decree. As for the District's
concern that the remedy exceeded the mandates of local law,
the court justified the decree as a "necessary and appropriate
use of its equitable authority" to cure widespread violations of

__________
2 In Suter, the Court held that a single provision of the
Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C.
s 671(a)(15), requiring a state to have a plan providing that "rea-
sonable efforts" will be made to prevent a child from being removed
from his home, and once removed to reunify the child with his
family, imposed only generalized duties on the states and thus
created neither a private right of action nor an enforceable right
under s 1983. Suter, 503 U.S. at 363-64. Although the Court's
holding only reached that single provision of the Adoption Act, its
analysis implicated the provisions of both federal statutes at issue in
this case, which parallel the structure of 42 U.S.C. s 671(a)(15).
See Doe v. District of Columbia, 93 F.3d 861, 866 (D.C. Cir. 1996)
(noting similarity between Adoption Act and Child Abuse Preven-
tion and Treatment Act).

District law. LaShawn A. v. Kelly, Civ. No. 89-1754 (D.D.C.
filed Jan. 27, 1994) (order adopting modified remedial order).
And the district court clarified, in accordance with LaShawn
I, that federal law was "not the basis of the consent decree."
LaShawn A. v. Kelly, Civ. No. 89-1754 (D.D.C. filed Nov. 12,
1993) (order directing plaintiffs to propose modified remedial
order).

The District once again appealed, contending, inter alia,
that the modified remedial order was not solely based on local
law as required by LaShawn I and that the entire order
should be declared "null and void" under the terms of the
parties' initial agreement. Again sidestepping, a divided pan-
el remanded the case to the district court to reexamine the
validity of the federal claims and its exercise of pendent
jurisdiction over the local law claims under the second step of
the test set forth in United Mine Workers v. Gibbs, 383 U.S.
715, 726-27 (1966). LaShawn A. v. Barry, 69 F.3d 556 (D.C.
Cir. 1995) ("LaShawn II"). Sitting en banc, however, we
held that the law-of-the-case and law-of-the-circuit doctrines
prevented us from revisiting the LaShawn I panel's implicit
conclusion that the exercise of pendent jurisdiction in this
case was appropriate under Gibbs step two. LaShawn A. v.
Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc). After remit-
ting the case to the LaShawn II panel to consider the issues
raised by the District in its appeal, we affirmed the district
court, holding that the decree did not extend beyond District
law any more than it extended beyond federal law and that
"the substitution of District law alone as the basis of the
decree, in place of reliance on federal plus District law, did
not materially undermine the District's consent." LaShawn
A. v. Barry, No. 94-7044 (D.C. Cir. Oct. 30, 1996).

In the meantime, plaintiffs and the district court became
frustrated with the District's recalcitrance in implementing
the consent decree. On November 23, 1994, more than three
years after the entry of the initial remedial order, the district
court appointed three limited receivers to manage the areas
of protective services, resource development, and corrective
action. These receivers soon reported that their efforts to
implement the remedial order were severely hampered by an

array of obstacles, including the departure of staff due to
budgetary constraints. They complained that the child wel-
fare bureaucracy was suffering from a "severe level of dys-
function" and concluded that the scope of the limited receiver-
ships was insufficient to implement the remedial order. At
about the same time, the District government confronted a
fiscal crisis. In early 1995, the D.C. Council mandated salary
reductions and furloughs for District government employees
in an effort to stem the flow of red ink. The district court,
concerned that this attempt to cut costs would seriously
undermine the receivers' efforts to implement the consent
decree, ordered the adoption of the limited receivers' work
plans which provided that "[a]ll Family Administrative staff
required by the LaShawn Remedial Order shall be exempt
from staff layoffs, furloughs, salary reductions or other simi-
lar measures which may be instituted to manage the overall
District budget deficit." See LaShawn A. v. Kelly, Civ. No.
89-1754 (D.D.C. filed Mar. 29, 1995).

A couple of months later, on May 22, 1995, the district
court found appellants in contempt and placed the child
welfare system into general receivership. The district judge
had become troubled by the limited receivers' reports and
discouraged by a 32-page list of more than 130 areas in which
the District had missed deadlines or was in noncompliance
with the remedial order, LaShawn A. v. Kelly, 887 F. Supp.
297 (D.D.C. 1995). In response to the District's argument
that a federal court should not institute a general receivership
to remedy violations of local law, the district court referred
back to its original 1991 opinion finding violations of federal
law. To the extent that our LaShawn I opinion required it to
address the impact of the Supreme Court's Suter opinion
before reviving the federal claims, the district court asserted,
in a footnote, that Suter had been "at least partially over-
turned" by intervening legislation. LaShawn A., 887
F. Supp. at 315 n.125. In the same opinion, the district court
also denied appellants' motion for reconsideration of its earli-
er order exempting child welfare staff from pay cuts and
furloughs. Id. at 316.

On August 24, 1995, the district court outlined the general
receiver's (Receiver's) responsibilities and powers, which in-
corporated all of the authority previously given to the limited
receivers. In its most expansive grant of authority, the
district court, over appellants' vigorous objection, ordered
that:

the Receiver will make reasonable efforts to exercise its
authority in cooperation with District of Columbia offi-
cials and in a manner consistent with local law whenever
possible. However, to the degree that local law govern-
ing lines of authority, budgeting, governmental structure
and organization, procurement, and personnel unrea-
sonably interfere with the Receiver's discharge of its
responsibilities, local law is superseded by the Receiver's
authority.

LaShawn A. v. Barry, Civ. No. 89-1754 (D.D.C. filed Aug. 24,
1995) (general receivership order) (emphasis added).3 The
parties dispute whether the Receiver, in any instance, has
transgressed local law, but no such violations appear in the
district court record below.

Although appellants initially challenged seven district court
orders, they concede that three of their appeals are now
moot.4 A fourth, objecting to powers given the limited receiv-
ers, need not be evaluated separately as their general powers
have been merged into the power of the Receiver. We,
therefore, are left to consider three orders: the March 29,
1995 order exempting Family Services Administrative Staff

__________
3 In a partial modification of its order, the district court later
directed the Receiver to "contract and procure goods and services
consistent with the District's existing procurement law and proce-
dures." LaShawn A. v. Barry, Civ. No. 89-1754 (D.D.C. filed Dec.
8, 1995) (order transferring child welfare funds to Receiver's bank
account).

4 These involve challenges to: (1) a June 26, 1995 order setting
deadlines to execute contracts for creation of a management infor-
mation system; (2) the December 8, 1995 order transferring the
Initial Operating Fund to the general receiver; and (3) a September
26, 1996 order denying the District's motion to stay the May 1995
receivership order.

from salary reductions and furloughs, the May 22, 1995 order
denying appellants' motion for reconsideration of the March
order, and the August 24, 1995 order directing the Receiver
to disregard District law when it "unreasonably interfere[s]
with the Receiver's discharge of [her] responsibilities."

II.

Appellees argue that challenges to the March 29, 1995 and
May 22, 1995 orders are also moot. Appellants admit that
the furlough and salary reduction legislation adopted to deal
with the District's fiscal crisis has expired, therefore appel-
lees contend that no live controversy exists with respect to
the orders which permitted the Receiver to override these
laws. The District responds that these orders fall within the
"capable of repetition yet evading review" exception to moot-
ness doctrine. For this exception to apply, the District must
show: "(1) the challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration, and (2)
there [is] a reasonable expectation that the same complaining
party [will] be subjected to the same action again." Wein-
stein v. Bradford, 423 U.S. 147, 149 (1975). Assuming ar-
guendo that the temporary nature of the salary reduction and
furlough measures allows the District to meet its burden on
the first prong, it cannot satisfy its obligation with respect to
the second. Although the District claims that temporary pay
cuts and furloughs may be instituted again in the event of
future budget deficits, it offers no support for the proposition
that the District again will run budget deficits during the
lifetime of the receivership,5 let alone for its implicit claim
that the congressionally created Control Board, despite the
existence of the consent decree, would approve of pay cuts
and furloughs so severe that the Receiver would find it
necessary to exempt child welfare personnel from such mea-

__________
5 We note that the District's own budget projections currently
forecast budget surpluses in the range of $150 million to $200
million for the next five years. David A. Vise, D.C. Fiscal Future
Glows; Rosy Outlook May Mean Tax Cuts, Wash. Post, Mar. 8,
1998, at A1.

sures. The District simply has not demonstrated that there
is a reasonable expectation a similar controversy will recur
and we therefore agree that the appeals of these, two orders
are moot.6

What remains is the gravamen of the District's case: its
complaint that the district court abused its discretion in its
August 24, 1995 order by authorizing the Receiver to violate
District law in several areas to the extent local law "unrea-
sonably interfere[d] with the Receiver's discharge of [her]
responsibilities." The District claims that because the dis-
trict court is enforcing a decree based exclusively on local
law, it is essentially in the same position as a local court.
And like all other institutions of government, local courts are
subject to valid restrictions imposed by local legislatures.
The district court, therefore, may not remedy one violation of
local law by permitting other violations of local law.

We are not persuaded by appellees' suggestion that, since
the District has not pointed to any specific instance in which
the Receiver has transgressed local law, the district court's
order should be affirmed if we can imagine any set of
circumstances in which the district court would be justified in
authorizing the Receiver to override local law. We must
review whether the broad scope of authority granted to the
Receiver under the present circumstances is proper, not
whether a more narrowly drawn authorization under a hypo-

__________
6 The District's alternative claim, that it is entitled to reim-
bursement of the funds spent complying with the disputed orders,
does not save the controversy. By including this contention as a
throwaway line in its reply brief, the District has not satisfied our
requirement that parties' arguments be sufficiently developed lest
waived. In any event, the District does not suggest from whom this
reimbursement would come or on what basis it would be made.
The disputed money has already been paid out in salary to District
employees, and we do not see how the district court could order its
return. We think it remarkable to suggest that the Receiver,
seeking to implement the terms of the consent decree, could, at this
point, be required to transfer millions of dollars from the child
welfare budget to other parts of the District government.

thetical set of future conditions might be within the district
court's discretion.

In that regard, we admit that while avoiding the federal
statutory and constitutional claims seemed prudent at the
time, our prior dispositions have led us into a most unusual
predicament. We have before us a federal district court
order that purports to override local law in order to imple-
ment a consent decree based solely on local law. The case
appears to be unique; we cannot find any other instance
where we or one of our sister circuits have dealt with an
analogous dispute. This is partially because the Eleventh
Amendment denies federal courts jurisdiction to order state
officials to conform their conduct to state law. Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89, 117-21
(1984).7 As support for the district court's order, appellees
point to several circuits which have held that federal courts
possess the power to override local law to enforce consent
decrees in instances where there have been no findings or
admissions of federal liability. See, e.g., Stone v. City and
County of San Francisco, 968 F.2d 850 (9th Cir. 1992);
Badgley v. Santacroce, 800 F.2d 33 (2d Cir. 1986); Brown v.
Neeb, 644 F.2d 551 (6th Cir. 1981). Once a local government
consents to a remedial order in a case where violations of
federal rights have been alleged, they argue, a federal court
obtains the authority to override conflicting local law in order
to enforce the decree, regardless of whether there are any
formal findings or admissions of liability on federal grounds.
As the Second Circuit has stated:

The respect due the federal judgment is not lessened
because the judgment was entered by consent. The
plaintiffs' suit alleged a denial of their constitutional

__________
7 The term "state" in the Eleventh Amendment also has been
interpreted to include Puerto Rico, see De Leon Lopez v. Corpora-
cion Insular de Seguros, 931 F.2d 116, 121 (1st Cir. 1991), but not
the District of Columbia. See LaShawn A. v. Barry, 87 F.3d 1389,
1394 n.4 (D.C. Cir. 1996) (en banc). Nevertheless, we continue to
operate under the assumption that District law under Gibbs should
be treated as state law, rather than inferior federal law. Cf. id. at
1398 (Silberman, J., concurring).

rights. When the defendants chose to consent to a
judgment, rather than have the District Court adjudicate
the merits of the plaintiffs' claims, the result was a fully
enforceable federal judgment that overrides any conflict-
ing state law or state court order.

Badgley, 800 F.2d at 38. There are crucial differences,
however, between the cases cited by appellees and this one.
Unlike those cases, it cannot be said that the District here
implicitly conceded some basis for federal liability; the Dis-
trict expressly reserved its right to appeal its liability under
federal law not withstanding its entry into the consent decree.
And more important, in fashioning its consent decree, we
directed the district court to base its remedial order only on
local law, to the extent possible. In response, the district
court deleted all references to federal law from the consent
decree.

Absent any recognized or implicitly conceded federal basis
to the decree, we simply do not see how the district court has
the power to authorize the Receiver to disregard District law.
While it is true that a consent decree involves an exercise of
federal power, a federal court enforcing a state-created right
becomes, "in effect, only another court of the State" and
cannot employ a remedy that is not available in state court.
See Guaranty Trust Co. v. York, 326 U.S. 99, 108-09 (1945);
see also 28 U.S.C. s 1652 (1994). And although Guaranty
Trust was a diversity-jurisdiction case amplifying the princi-
ples of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), pendent
jurisdiction jurisprudence is based on the same principles.
See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
Allowing different remedies in state law cases heard in feder-
al courts on pendent jurisdiction would undermine the "twin
aims of the Erie rule: discouragement of forum-shopping and
avoidance of inequitable administration of the laws." Hanna
v. Plumer, 380 U.S. 460, 468 (1965).

The courts of a jurisdiction cannot authorize violations of
that jurisdiction's laws, unless pursuant to the command of a
higher law. It is a fundamental tenet of separation-of-powers
doctrine that a court's enforcement powers are restricted by

the dictates of the legislature. As we have observed, a
district court's remedial powers "are necessarily limited by a
clear and valid legislative command counseling against the
contemplated judicial action." Antone v. Block, 661 F.2d 230,
235 (D.C. Cir. 1981). The Supreme Court has reaffirmed this
basic principle, noting that " '[a] Court of equity cannot, by
avowing that there is a right but no remedy known to the law,
create a remedy in violation of the law....' " INS v. Pangil-
inan, 486 U.S. 875, 883 (1988) (quoting Rees v. Watertown, 19
Wall. 107, 122 (1874)); see also Hedges v. Dixon County, 150
U.S. 182, 192 (1893) ("[c]ourts of equity can no more disre-
gard statutory and constitutional requirements and provisions
than can courts of law.").

The scope of the Receiver's authority is quite extraordi-
nary. Even were the consent decree explicitly based on
federal law, we would be hesitant to affirm. To be sure, a
federal court has broad equitable powers, see Swann v.
Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15 (1971),
and may, in certain instances, override state or local law for
the purpose of enforcing a decree designed to remedy viola-
tions of federal law. See, e.g., Missouri v. Jenkins, 495 U.S.
33, 52-53 (1990); North Carolina State Bd. of Educ. v.
Swann, 402 U.S. 43, 45 (1971). But in this case, the district
court has given the Receiver an open-ended authorization to
disregard numerous important sections of District law. We
think considerable tension exists between its order and the
Supreme Court's admonition that in employing their broad
equitable powers, federal courts must "exercise '[t]he least
possible power adequate to the end proposed.' " Spallone v.
United States, 493 U.S. 265, 280 (1990) (quoting Anderson v.
Dunn, 6 Wheat. 204, 231 (1821)).

Our review of a district court's choice of equitable remedies
is "highly contextual and fact dependent." Stone v. City and
County of San Francisco, 968 F.2d at 861. But "the remedy
should begin with what is absolutely necessary. If [those]
measures later prove ineffective, more stringent ones should
be considered." Ruiz v. Estelle, 679 F.2d 1115, 1145-46 (5th
Cir. 1982), vacated in part on other grounds, 688 F.2d 266
(5th Cir. 1982). We sympathize with the district court's

frustration with the pace of the District's progress in comply-
ing with the remedial order and its desire to empower the
Receiver to accomplish her goals as quickly as possible.
Disregarding local law, however, is a grave step and should
not be taken unless absolutely necessary. In Stone v. City
and County of San Francisco, the Ninth Circuit considered a
case where a district court had authorized a local sheriff to
override state laws by ordering the early release of certain
inmates from an overcrowded jail. 968 F.2d at 850. While
the court held open the possibility that such an authorization
might be upheld under certain circumstances, it noted that
"the district court did not make any findings that other
alternatives were inadequate before it authorized the Sheriff
to override applicable state laws." Id. at 864. It therefore
vacated the relevant part of the district court's order.

The equitable remedy here is even more troubling than the
one at issue in Stone. There, the district court authorized a
local government official, the Sheriff, to override state law in
only one narrow field. In this case, the Receiver, a court-
appointed official, has been authorized to disregard District
law in a whole host of areas. While it is true that the
Receiver is required to conclude that relevant local laws
"unreasonably interfere" with her ability to discharge her
responsibilities, the district court has never concluded that
compliance with District law, as a general matter, precludes
the Receiver from enforcing the consent decree. And even
were it to make such a finding, we believe that the district
court needs to consider each contemplated violation of Dis-
trict law on a case-by-case basis. Should a situation arise in
which it is alleged that desired action by the Receiver violates
local law, the District should bring this to the attention of the
district court and bear the burden of making the case that a
conflict exists. If the district court concludes that there is
indeed such a conflict, it should only authorize the Receiver to
violate local law in those instances where, considering other
alternatives, it specifically concludes an override is necessary
to enforce the terms of the consent decree.

In such cases, the district court further must consider the
status of the federal statutory claims. If the district court

had wished, when revising the consent decree in light of
LaShawn I, to retain any provision solely based on federal
law, we instructed it to reexamine the relevant federal claim
in light of the Supreme Court's Suter opinion. Rather than
perform such a reexamination, however, the district court
explicitly disclaimed any federal basis for the consent decree.
The district court's 1995 attempt to revive the federal law
claims in its opinion placing the child welfare system into
receivership was inadequate. Noting the requirements of our
LaShawn I mandate, the district court, speaking generally of
the federal statutory violations, declared that the Supreme
Court's Suter decision "has been at least partially overturned
by congressional action." LaShawn A., 887 F. Supp. at 315
n.125 (emphasis added). We think this treatment of the
matter is insufficient; the district court must instead analyze
the federal claims separately in light of the recent legislation 8
and Supreme Court cases, including Suter and Blessing v.
Freestone, 117 S. Ct. 1353 (1997), in order to determine
whether any survive. A mere observation that Suter may no
longer be relevant due to congressional action does not
comply with our LaShawn I mandate.

Should the district court determine, in accordance with the
framework laid out in this opinion, that empowering the
Receiver to violate District law in a specific instance is

__________
8 The relevant statutory amendment reads:

In an action brought to enforce a provision of this chapter, such
provision is not to be deemed unenforceable because of its
inclusion in a section of this chapter requiring a State plan or
specifying the required contents of a State plan. This section
is not intended to limit or expand the grounds for determining
the availability of private actions to enforce State plan require-
ments other than by overturning any such grounds applied in
Suter v. Artist M., 112 S. Ct. 1360 (1992), but not applied in
prior Supreme Court decisions respecting such enforceability:
Provided, however, That this section is not intended to alter the
holding in Suter v. Artist M. that section 671(a)(5) of this title
is not enforceable in a private right of action.

42 U.S.C. s 1320a-2 (amended Oct. 20, 1994); id. at s 1320a-10
(amended Oct. 31, 1994) (identical provision).

warranted, it must identify the specific federal law ground it
is using as the justification for the Receiver's authority to
transcend local law. As the Seventh Circuit noted in Kasper
v. Board of Election Commissioners, 814 F.2d 332, 342 (7th
Cir. 1987), "An alteration of the [state's] statutory scheme ...
depends on an exercise of federal power, which in turn
depends on a violation of federal law." (emphasis added).
Since reintroducing federal claims into the case would consti-
tute a modification of the basis of the consent decree, the
District would, of course, be able to contest such a modifica-
tion on appeal.

* * * *

As the district court's August 24, 1995 order raises signifi-
cant separation of powers concerns, we remand with instruc-
tions to consider those instances in which desired action by
the Receiver conflicts with local law in accordance with the
procedures spelled out in this opinion. We hold the District's
other appeals to be moot.

So ordered.