Enforcing Consent Decrees and Injunctions after Horne v. Flores

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1 Enforcing Consent Decrees and Injunctions after Horne v. Flores NLADA Litigation and Advocacy Director s Conference July 29-Aug. 1, 2012 Austin, TX Presentation by Jane Perkins Securing Health Rights for Those in Need

2 Various court documents in play Settlement agreement Incorporated in order of dismissal Stipulated dismissal Conditional stipulation of dismissal w/retained jurisdiction Consent decree Dual character Agreement of parties Court reviews for fairness and enters as a judgment Court-ordered injunction Proposed injunction

3 Why Consent? Creative problem solving Broader, more specific relief than court may order Firefighters v. City of Cleveland, 478 U.S. 501 (1985) Milliken v. Bradley, 433 U.S. 267 (1977) Avoid time, expense and risk of litigation Avoid admissions of wrongdoing Greater commitment to implementation

4 So, what s the problem? Federalism concerns State governors Our hands are being tied. State legislatures Get permission. E.g. Utah Code Ann 63-38b (2007) U.S. Congress We hear you. E.g. Sunshine for Regulatory Decrees and Settlements Act of 2012 (not enacted) U.S. Supreme Court (5 members) We hear you, too.

5 Notable Supreme Court Decisions Rufo v. Inmates of Suffolk Co. Jail, 502 U.S. 367 (1992) Flexible standard Significant change in facts substantially more onerous unforeseen obstacles detrimental to public interest defendant has tried to comply Significant change in law Must: federal law makes obligation impermissible May: statutory or case law has changed

6 Notable Supreme Court Decisions Frew v. Hawkins, 540 U.S. 431 (2004) Affirmed district court authority to enforce highly detailed consent decree DICTA: Return responsibility promptly to state officials Elected officials bring new insights If State establishes a reason to modify the decree, the court should make the necessary changes

7 Notable Supreme Court Decisions Horne v. Flores, 557 U.S. 433 (2009) Concern with institutional reform litigation Concern with dictating state decision making Perpetual oversight improper absent clear record of ongoing violations

8 Notable Supreme Court Cases Horne did not overrule previous cases Burden on party seeking modification Higher when termination requested (Bd. of Educ. v. Dowell, 498 U.S. 237 (1991) Compliance must be well-established, ongoing Standard on appeal: abuse of discretion

9 Notable Supreme Court Cases Horne did not overrule previous cases But judges matter LaShawn A. v. Fenty, 701 F. Supp. 2d 84 (D.D.C. 2010), aff d, 412 F. App x 315 (D.C. Cir. 2011) Salazar v. D.C., 685 F. Supp. 2d 72 (D.D.C. 2010), aff d but criticized, 633 F.3d 1110 (D.C. Cir. 2011) Hawkins v. Comm r, 665 F.3d 25 (1st Cir. 2012) John B. v. Emkes, 2012 WL (M.D. Tenn. Feb. 14, 2012) (on appeal)

10 Suggested Attorney Behavior: DON T TAKE THE BAIT We need to be sued NO PUFFING Let complaint speaks for itself KNOW WHAT YOU WANT Before complaint is filed EXPECT THE HARD PART TO START AFTER ENTRY OF ORDER/DECREE

11 Considerations for Consent Decrees Class actions Fed. R. Civ. P. 23(c)(3) State critical facts, considerations, goals Specify implementation steps Define compliance Where possible, use objective, quantifiable standards

12 Considerations for Consent Decrees Reporting Monitoring Attorney fees Future court involvement Duration and retained jurisdiction Permanent injunction Grounds for modification/termination Discovery

13 Consent Decree Standards Grounds for modifying/terminating in decree or Fed. R. Civ. P. 60(b) Motion required Standard: upon terms that are just Six grounds for relief

14 Consent Decree Standards Fed. R. Civ. P. 60(b)(5) judgment satisfied a judgment on which decree is based has been reversed/vacated no longer equitable Case-specific review Equitable discretion with trial court Focus on 4 corners of decree & events after decree