REVISED - July 16, 1998
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30486
HAMILTON PLAINTIFFS,
Plaintiffs-Appellants,
versus
WILLIAMS PLAINTIFFS,
Plaintiffs-Appellees,
versus
CHARLES C. FOTI, JR., SHERIFF; CITY OF NEW ORLEANS;
STATE OF LOUISIANA; RICHARD STALDER, SECRETARY;
MIKE FOSTER, GOVERNOR, STATE OF LOUISIANA; SIXTY-
FOUR (64) LOUISIANA SHERIFFS,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
July 14, 1998
Before POLITZ, Chief Judge, REYNALDO G. GARZA and DENNIS, Circuit
Judges.
POLITZ, Chief Judge:
The Hamilton plaintiffs appeal the district court’s order vacating and
rescinding consent decrees setting inmate populations and guard-to-prisoner ratios
at parish correctional facilities. For the reasons assigned, we dismiss this appeal
for lack of jurisdiction.
BACKGROUND
For nearly three decades federal courts have been required to address
problems in the operation of the Louisiana prison system. In 1969 a class action,
Hamilton v. Schiro,1 was filed in the Eastern District of Louisiana challenging
conditions in the New Orleans Parish Prison. In April 1970, the trial court found
that the prison conditions were unconstitutional and issued a remedial decree,
including a prisoner population cap. Over the years, as new jails were built in
Orleans Parish, the plaintiff class was expanded to include prisoners in the other
facilities and population caps were set for same.
In 1971, four inmates in the Louisiana State Penitentiary at Angola filed suit
in the Middle District of Louisiana, claiming that their conditions of confinement
were unconstitutional. This action, Williams v. Edwards,2 was treated as a de facto
class action for both the inmates at Angola and the inmates housed in facilities
1
338 F.Supp. 1016 (E.D. La. 1970).
2
No. 71-98-B (June 10, 1975).
2
operated by the State of Louisiana Department of Corrections.3 In April 1975, the
district court adopted a Special Master’s report and found that the conditions of
confinement violated the Constitution resulting in injunctive relief, including a
prisoner population cap. This cap ultimately was imposed on all relevant facilities.
Thereafter, the DOC sought, pursuant to court order, the development of a
comprehensive plan for bringing the state prison system into full compliance.
Incident to that plan, the DOC secured the cooperation of the Louisiana parishes
and cities to house inmates sentenced to state confinement to help alleviate
overcrowded conditions in the state prison facilities. As state prisoner numbers
increased in local jails, federal actions were filed, complaining of overcrowding.
To avoid the spectre of inconsistent decrees, in Hamilton v. Morial,4 we ordered
that all federal litigation then pending or subsequently filed against state, parish or
local prison facilities, relating directly or indirectly to inmate population issues, be
consolidated in the Middle District of Louisiana. Thereafter, officials in charge of
the many Louisiana state, parish, and city facilities entered into stipulations and
3
The class was certified in 1991 but excluded DOC prisoners in parish jails.
The class order was amended on May 27, 1993 to, inter alia, include
such prisoners. For ease in review, a copy of this order is attached hereto as
Exhibit A.
4
644 F.2d 351 (5th Cir. 1981).
3
consent decrees specifying, inter alia, population limits and officer-to-prisoner
ratios. Since 1981, these facilities continuously have been under the judicial
oversight of Judge Frank J. Polozola of the Middle District of Louisiana, and the
population caps and officer-to-prisoner ratios have been revised as conditions
warranted.
In March 1994, the State and the Sheriffs executed an agreement entitled
“Basic Jail Guidelines” in their effort to ensure that the prison system in Louisiana
would operate consistent with the Constitution and laws of the United States and
of the State of Louisiana. On September 26, 1996, a Petition for Order Approving
Settlement for Purpose of Terminating Consent Decrees was filed in the court à quo
by class counsel for the Williams plaintiffs and counsel for the Governor and the
Secretary of the DOC, seeking a final resolution of the litigation between them.
The Petition Agreement stated that the Williams parties had agreed to the
“dismissal of all consent decrees” for all state, parish, and city facilities housing
DOC inmates, except the Louisiana State Penitentiary at Angola and specified
juvenile detention facilities, effective April 1, 1997, and they requested the court’s
aid in effectuating their agreement. Included with the Petition Agreement was a
letter from counsel for the Sheriffs, requesting that all consent decrees pertaining
to parish facilities be vacated effective April 1, 1997. Following a hearing on
4
September 26, 1996, the court approved the settlement and entered three orders
consistent therewith. For ease of review, copies of these three orders are attached
hereto as Exhibits B (state), C (parish), and D (city).
On October 23, 1996, the Hamilton plaintiffs filed a Motion to Reconsider
and Vacate Orders of September 26th. The Hamilton plaintiffs contended that the
issuance of the September 26th orders violated their fundamental rights to due
process because they were not included in the negotiations resulting in the Petition
Agreement and Sheriffs’ Order, were not given notice of their filing, were not
signatories thereto, and were not present when they were presented to and approved
by the court. The Hamilton plaintiffs informed the court that they did not consent
to the dismissal of the population cap consent decrees affecting the facilities
covered by the Hamilton litigation, and did not authorize counsel for the plaintiffs
to act as their counsel or to represent their interest. The State responded by moving
dismissal of the Hamilton plaintiffs’ motion because they were not parties to the
suit in which the orders were entered.
The Hamilton plaintiffs responded, contending that they were parties and
asking, in the alternative, that they be allowed to intervene. Judge Polozola denied
both the State’s motion to dismiss and the Hamilton plaintiffs’ motion to
5
reconsider. The Hamilton plaintiffs appealed this order and Sheriff Charles C. Foti
of Orleans Parish moved to dismiss the appeal. We granted that motion.
On April 1, 1997 the district court entered an order finally releasing all state
facilities, with the exception of five institutions including the Louisiana State
Penitentiary at Angola, from further supervision and reporting requirements and,
in doing so, noted that it earlier had released all parish and local facilities from
further supervision and reporting requirements. A copy of that order is attached
hereto as Exhibit E.5 On April 30, 1997 the Hamilton plaintiffs filed a notice of
appeal from the April 1, 1997 order. The Sheriffs seek dismissal of this appeal.
That motion was ordered carried with the case and is thus outstanding.
ANALYSIS
Before addressing the merits of this appeal, we must first determine the
threshold issue of our appellate jurisdiction, on our own motion, if necessary. The
Sheriffs contend that this appeal involves a non-appealable interlocutory order of
the district court. We cannot accept that contention.
The relevant statute, 28 U.S.C. § 1292(a)(1) provides that the courts of
5
In referring to the state facilities the order declares that they “are released
from all further supervision . . . .” The reference to parish and local jails,
however, notes that they “have been released from all further supervision . . .”
We do not view this careful choice of language to be happenstance.
6
appeals shall have jurisdiction of appeals from “[i]nterlocutory orders of the district
courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions, except where a direct review may be had
in the Supreme Court.” Consent decrees are “injunctions” within the meaning of
section 1292(a)(1).6 It is clear that the Hamilton plaintiffs challenge the order
vacating the consent decrees affecting the Orleans Parish facilities. The parties
dispute, however, whether the September 26, 1996 order or the April 1, 1997 order
is the relevant, dispositive order. That relevant dispute aside for the moment, the
challenged order explicitly dissolved injunctive relief by vacating the population
cap consent decrees for the parish facilities. Accordingly, the order clearly is
appealable under 28 U.S.C. § 1292(a)(1).
A close review of the record in this appeal, aided by the briefs and oral
arguments of counsel, leads inexorably to the conclusion that the September 26th
6
See Walker v. United States Dep’t of Housing and Urban Dev., 912 F.2d
819 (5th Cir. 1990) (modification of a consent decree to compel federal
subsidization of low-cost housing units was appealable pursuant to 28 U.S.C. §
1292(a)(1) as modification of injunctive decree); Thompson v. Enomoto, 815
F.2d 1323 (9th Cir. 1987)(consent decree dictating conduct for the California
Department of Corrections and compelling compliance through the court’s
contempt power was sufficiently injunctive in nature to be considered an
injunction under § 1292(a)(1)); Gary v. Louisiana, 601 F.2d 240 (5th Cir. 1979)
(order appointing a special master to oversee implementation of court’s consent
decree was an appealable modification of an injunction under § 1292(a)(1)).
7
order is the dispositive order herein. It states, “IT IS ORDERED that each and
every consent decree entered by this court pertaining to inmate population and
guard-to-prisoner ratio at any facility operated by or under the authority of any
Sheriff, appearing hereinbelow . . . are hereby VACATED, RESCINDED and are
without further effect as of April 1, 1997.”7 It cannot be gainsaid that this order
vacates and rescinds the consent decrees effective April 1st; it is self-executing and
does not merely await the entry of another order to be issued on April 1st. 8
7
Sheriff Foti signed on behalf of Orleans Parish, first on the list of sheriff-
signatories.
8
The confusion manifested herein perhaps results from the State order which
also was signed on September 26, 1996. That order says, “WHEREFORE, IT IS
ORDERED that the original and all subsequent orders entered by the Court in
this action, including [a consent decree entered on December 7, 1983 dealing
with various state facilities] (“the DPSC Facilities”), are to be rescinded and
have no further effect on April 1, 1997. On that date, the Court shall issue a
final order of dismissal.” It further provided, “IT IS FURTHER ORDERED that
all NON-DPSC Facilities in which DPSC prisoners are being held shall also
finally be dismissed from further Court supervision on April 1, 1997.”
The filings defined DPSC as the Department of Public Safety and
Corrections and DPSC Facilities as the state facilities. Non-DPSC Facilities
were defined as “secure parish of (sic) local jails listed in Exhibit A-1 [which
includes Orleans Parish Prison] that may hold adult inmates sentenced to the
custody of the DPSC.” The provision of the order which refers to the Non-
DPSC facilities could perhaps be taken as requiring a final order on April 1st
before the parishes would be released from the consent decrees. When this
order is read in conjunction with the initiating petition, however, it is clear that
supervision of the Non-DPSC facilities was being retained by the court only to
allow for inspections to determine whether these facilities complied with the
Basic Jail Guidelines. The limiting language in the order on use of the results of
8
The Hamilton plaintiffs did not timely appeal the September 26th order. The
requirements of Rule 4 are both clear and mandatory.9 An appellant has 30 days
from the entry of a final judgment in which to appeal. On October 23, 1996, 27
days after the entry of the order vacating the population caps, the Hamilton
plaintiffs filed a Motion to Reconsider and Vacate Orders of September 26th. This
motion did not toll the time for filing a notice of appeal.10 The Hamilton plaintiffs
these inspections fortifies our conclusion. The September 26th order is the final
order which released the parish prisons from the population caps.
9
Fed. R. App. P. 4 provides in pertinent part:
(a) Appeals in Civil Cases.
(1) In a civil case in which an appeal is permitted by law as of right
from a district court to a court of appeals the notice of appeal
required by Rule 3 shall be filed with the clerk of the district court
within 30 days after the date of entry of the judgment or order
appealed from. . . .
10
The Federal Rules of Civil Procedure do not provide for a “Motion for
Reconsideration” but such motions may properly be considered either a Rule
59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from
judgment. See Kelley v. Price-Macemon, Inc., 992 F.2d 1408 (5th Cir. 1993).
A Rule 60(b) motion does not toll the running of time for filing a notice of
appeal whereas a timely filed Rule 59(e) motion does. See Fischer v. United
States, 759 F.2d 461 (5th Cir. 1985); Fed.R.App.P.4(a). In order to be timely
filed, a Rule 59(e) motion must be filed within ten days of the judgment or order
of which the party complains. Fed.R.Civ.P. 59(e). Motions which are
“untimely under Rule 59 must be treated as motions under Fed.R.Civ.P. 60(b)
for purposes of Rule 4(a)(4).” Brown v. United Ins. Co. of Am., 807 F.2d 1239,
1242 (5th Cir. 1987)(citing Huff v. International Longshoremen’s Ass’n, 799
F.2d 1087, 1090 (5th Cir. 1986).
9
did not file a notice of appeal until December 20, 1996, almost three months after
the entry of the September 26th orders. Thus, their appeal was untimely. 11
Although the Hamilton plaintiffs filed a notice of appeal within 30 days after
entry of the April 1st order, it is manifest that it is the September 26th order of
which they complain. They cannot now revive an appeal of the earlier final order
by appealing the April 1st decree.
This court lacks appellate jurisdiction and the appeal must be and is
DISMISSED.
ENDRECORD
11
Hamilton v. Williams, No. 97-30069 (5th Cir., April 17,1997)(appeal
dismissed).
10
DENNIS, Circuit Judge, dissenting:
I respectfully dissent.
The rationale of the majority opinion is that because the Hamilton plaintiffs
did not appeal timely after the district court’s September 26, 1996 order, they
forfeited their right to appeal after that court’s April 1, 1997 order. The majority
opinion appears to rely on three possible theories as to the appealability of the
September 26, 1996 order: The order is appealable (1) “clearly . . . under 28 U.S.C.
§ 1292(a)(1).” Maj. Op. at 7; (2) as a final judgment under 28 U.S.C. § 1291; or
(3) as an order that comes within an appropriate exception to the final judgment
rule. It is difficult to see how the majority’s decision can be soundly based on any
of these grounds, however.
(1)
Section 1292(a)(1) of 28 U.S.C. expressly permits an appeal from an
interlocutory order of a district court that, inter alia, dissolves an injunction. An
interlocutory appeal is permissive, not mandatory, because the district court retains
complete control over its interlocutory orders until entry of a final judgment into
which they are merged. A party does not forfeit its right to appeal after the final
decree by failing to bring an interlocutory appeal. Matherne v. Wilson, 851 F.2d
752, 756 & n.9 (5th Cir. 1988); Gloria S.S Co. v. Smith, 376 F.2d 46, 47 (5th Cir.
1967). See also 19 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE §
203.32[3][b] (3d ed. 1998) and other authorities cited therein.
Accordingly, if the district court’s September 26, 1996 order was an
interlocutory order dissolving an injunction-like consent decree, as the majority
first asserts, the Hamilton plaintiffs’ failure to take an interlocutory appeal did not
cause them to forfeit their right to appeal after the district court’s final April 1,
1997 decree.
(2)
Federal appellate jurisdiction generally depends on the existence of a
decision by the district court that “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229,
233 (1945)); Sierra Club v. City of San Antonio, 115 F.3d 311, 313 (5th Cir. 1997).
An order dissolving a consent decree is in essence the same as one dissolving an
injunction. See Carson v. American Brands, Inc., 450 U.S. 79, 90 (1981) (holding
that an order refusing to approve a consent decree is an order refusing an
injunction, and is therefore appealable under § 1292(a)(1)); Roberts v. St. Regis
Paper Co., 653 F.2d 166, 170 (5th Cir. Unit B Aug. 10, 1981). Consequently, such
an order is inherently not final but interlocutory. See 28 U.S.C. § 1292(a)(1).
12
Moreover, the district court’s September 26, 1996 order affecting the
Hamilton plaintiffs’ rights expressly provided that the consent decree was vacated
“as of April 1, 1997.” Also, as the majority opinion recognizes, the district court
in its September 26, 1996 order made clear that “supervision of the Non-DPSC
facilities was being retained by the court only to allow for inspections [by the
Court’s expert] to determine whether these facilities complied with the Basic Jail
Guidelines.” Maj. Op. at 8 n.7 (emphasis in original). Thus, the district court
clearly retained jurisdiction of the case until April 1, 1997 for the purpose of taking
remedial action in the event any facility failed to comply. The September 26, 1996
order, therefore, does not of its own force terminate the entire litigation as of the
date of its entry. See Coopers & Lybrand, 437 U.S. at 467. “‘[A]t a minimum,
appellate review should not ordinarily occur before it is clear that the judge has no
intention of further reconsidering the challenged ruling.’” In re Delta Servs. Indus.,
782 F.2d 1267, 1271 (5th Cir. 1986) (quoting 15 WRIGHT, MILLER & COOPER,
FEDERAL PRACTICE & PROCEDURE § 3907 (1st ed. 1976)). See also Cinerama, Inc. v.
Sweet Music, S.A., 482 F.2d 66, 70 (2d Cir. 1973) (Among the purposes of the final
judgment rule is “to prevent an appeal on an issue concerning which the trial court
has not yet made up its mind beyond possibility of change. . . .”); Erstling v.
Southern Bell Tel. & Tel. Co., 255 F.2d 93, 95 (5th Cir. 1958) (“If the language used
13
by the court clearly evidences the judge’s intention that it shall be his final act[,]
it constitutes a final judgment. . . .”) (citing United States v. F. & M. Schaefer
Brewing Co., 356 U.S. 227, 232 (1958)). Because the district court retained
jurisdiction and supervision and could have reconsidered all or parts of its
September 26, 1996 order at any time prior to April 1, 1997, the September order
was not a final judgment that ended the litigation and left nothing for the court to
do but execute the judgment.12
(3)
Such an order is appealable, therefore, only if it comes within an appropriate
exception to the final judgment rule. The majority opinion does not identify any
12
The District Court’s April 1, 1997 order provided “that the following secure
parish and local jails have been released from all further supervision and
jurisdiction of this Court and from all further reporting requirements” and listed
those facilities. The majority concludes that the court’s April 1, 1997 use of a
present perfect tense verb is determinative of whether the Court’s September 26,
1996 order was a final judgment. For the reasons stated above, I do not think that
a court can retroactively remake its prior interlocutory order into a final judgment,
especially not by a brief, cryptic comment in a later judgment under a different
docket number. “For a ruling to be final, it must end the litigation on the merits,
and the judge must clearly declare his intention in this respect. . . . Moreover, the
judge did not explicitly exclude the possibility that he might change his mind in the
interim.” FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 273-
74 (1991) (internal citations and quotations omitted). “The Federal Rules are not
intended to create procedural traps for the parties, forcing them to file premature
appeals whenever some slight doubt arises as to the propriety of the court’s way of
entering judgment.” Blanchard v. Commonwealth Oil Co., 294 F.2d 834, 837 (5th
Cir. 1961).
14
appropriate exception to the final judgment rule that affords appealability to the
September 26, 1996 order. From the majority’s statement that the order “vacates
and rescinds the consent decrees effective April 1st; it is self-executing and does
not merely await the entry of another order to be issued on April 1st[,]” it can be
speculated that the majority thinks that the September order fits within either the
death knell or pragmatic finality exception to the final judgment rule. These
exceptions cannot be applied so as to make the September 26 order appealable as
if it were a final judgment, however; and even if they could, the Hamilton plaintiffs,
by failing to take such an appeal, did not forfeit their right to appeal after the April
1, 1997 final decree.
This court has limited the death knell exception to those cases in which a stay
requires all or essentially all of the suit to be litigated in state court. Kmart Corp.
v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997). Furthermore, its viability was
severely if not fatally undermined by the Supreme Court in Coopers & Lybrand v.
Livesay, 475 U.S. 463 (1978).
This court no longer recognizes the pragmatic finality exception. Aronds,
123 F.3d at 300 (citing Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d
399, 405 (5th Cir.) (stating that pragmatic finality is in fundamental conflict with
the purpose of the finality rule), cert. denied, 469 U.S. 818 (1984)).
15
Moreover, a party’s failure to take an appeal under one of these exceptions
to the final judgment rule does not cause him or her to lose the right to appeal after
the final decree. As Professors Wright, Miller and Cooper observe:
Forfeiture of the right to review on appeal from a final judgment
should not follow from failure to take an appeal authorized by
the hardship, collateral order, death knell, and pragmatic finality
doctrines. . . . Unlike Rule 54(b), the purpose of these doctrines
is only to provide an opportunity for immediate appeal to
protect against the harsh results that the final judgment
requirement can cause, not to force immediate appeal for the
purpose of achieving final resolution of some portion of the
case. While it is appropriate to hold, for example, that the
opportunity for collateral order appeal is lost if appeal is not
taken within the appeal period that runs from entry of the order,
review should remain available on appeal from the final
judgment.
15A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE § 3905.1, at
262 (2d ed. 1992).13
CONCLUSION
I agree with the majority that the district court, in its September 26, 1996
order, intended to retain supervision of the Non-DPSC facilities to ensure that those
13
The September 26, 1996 order also does not satisfy the requirements for
certification as a partial final order under Federal Rule of Civil Procedure 54(b)
because “the language in the order. . . either independently or together with related
portions of the record referred to in the order” does not “reflect[] the district court’s
unmistakable intent to enter a partial final judgment” under this rule. See Kelly v.
Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en
banc).
16
facilities were in compliance with the Basic Jail Guidelines before the effective
date of the dissolution of the consent decrees on April 1, 1997. Accordingly, the
district court retained jurisdiction of the case and therefore could have further
modified, amended, altered or reversed its decision to vacate and rescind the
consent decrees at any time prior to April 1, 1997, the effective date of its
preliminary decree and its final decree. Consequently, because the September 26,
1996 order was interlocutory, the Hamilton plaintiffs, by failing to appeal from it
interlocutorily, did not forfeit their right to appeal after the April 1, 1997 final
decree. The Hamilton plaintiffs did appeal timely after this date, bringing up all
interlocutory orders affecting the rights finally and effectively adjudicated on April
1, 1997. Therefore, I believe this court has jurisdiction of the Hamilton plaintiffs’
appeal, and I must respectfully dissent from the majority’s decision.
17
Hamilton v. Williams
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-07-16
Citations: 147 F.3d 367
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