each person with minimally adequate habilitation until such time as the person no longer is in need of such living arrangements and/or community services.
Of the remaining two components of the FSA, Appendix B sets forth the Commonwealth's obligations with respect to allocation of the funds made available by the closure of Pennhurst, while Appendix C concerns the approval of the FSA and notice to members of the Pennhurst class.
Pennhurst State School and Hospital was at last closed in 1987. Litigation in this matter, nevertheless, has continued. As stated above, the actions of the defendants have necessitated the filing of several motions by the plaintiffs for enforcement of the Court Decree. As also stated above, in 1989, in response to one such motion filed by ARC/PA, the Commonwealth defendants asserted that the defendants had moral, but not legal, obligations to the members of the Pennhurst class and further, that this Court was without jurisdiction to enforce the Court Decree. This Court, after holding hearings over a period of four days, found that it had jurisdiction and that the defendants in entering into the Court Decree had assumed legal obligations to the Pennhurst class. Further, the Court found that the Commonwealth defendants as well as two of the county defendants were not in substantial compliance with the provisions of the Court Decree and the judgments entered by this Court, in that significant members of the Pennhurst class were still not receiving minimally adequate habilitation. Halderman v. Pennhurst School and Hospital, No. 74-1345, 1989 U.S. Dist. LEXIS 10147 (E.D. Pa. Aug. 28, 1989), aff'd, Halderman v. Pennhurst School and Hospital, 901 F.2d 311 (3rd Cir.), cert. denied, 498 U.S. 850, 111 S. Ct. 140, 112 L. Ed. 2d 107 (1990). Affirming, the Third Circuit determined that, following the entry of the Court Decree, jurisdiction over this matter by the district court remained, pursuant to "the usual continuing jurisdiction that courts routinely exercise over their injunctions." Id. at 320. The Third Circuit further determined that Appendix A obligations were "orders of the Court" and not ethical commands. Id. at 319-20. Appendix A, thus, was determined to be "permanent" subject to Rule 60(b). The Commonwealth defendants were held to have a continuing legal obligation to the Pennhurst class.
In 1991, the Commonwealth defendants made another attempt to avoid the legal obligations they knowingly assumed when they entered into the Court Decree. This time, the Commonwealth defendants filed a motion in which they asserted that Appendix A, the "heart and soul" of the Court Decree, should be vacated. They claimed that, subsequent to the entry of the Court Decree, the legal predicates for Appendix A had been undermined by developments in constitutional substantive due process and equal protection law and in federal statutory rights under Section 504 of the Rehabilitative Act of 1973, 29 U.S.C. § 794. The Commonwealth defendants also asserted that vacation of Appendix A was supported by equity and fairness.
Guided by the then-recent Supreme Court decision, Rufo v. Inmates of Suffolk County Jail, 116 L. Ed. 2d 867, 112 S. Ct. 748 (1992), this Court determined that the Commonwealth defendants, as the party seeking modification of an institutional reform consent decree, had failed to carry their burden of establishing that significant change in factual conditions or law warranted revision of the Court Decree. The Commonwealth defendants had based their assertion of changes in constitutional substantive due process on cases holding that voluntary residents had no constitutional right to mental retardation services. This Court in 1977, however, had made a finding of fact based on 32 days of testimony that the residents of Pennhurst were involuntary. Recent caselaw, including DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), supported that finding: the Commonwealth defendants had affirmatively acted in accepting the residents into Pennhurst, in restraining them at Pennhurst, and in depriving them of their constitutional right to minimally adequate habilitation, a failure that could well have meant commitment for life, since it was unlikely that they would ever advance to a stage at which they might be found ready by the staff to go out into the community. As the Supreme Court in DeShaney, 109 S. Ct. at 1005, stated:
When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs-- e.g., food, clothing, shelter, medical care, and reasonable safety-- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. . . . In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf-- through incarceration, institutionalization, or other similar restraint of personal liberty-- which is the "deprivation of liberty" triggering the protections of the Due Process Clause,. . . .
In their 1991 motion to vacate Appendix A, the Commonwealth defendants also asserted that the equal protection predicate on which the Court Decree was based had been undermined by the rational basis standard enunciated by the Supreme Court in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). The right to relief found by this Court in 1977, however, had not stemmed from suspect or quasi-suspect class analysis. Further, the obligations which the Commonwealth defendants were attempting to avoid had not come from the Court's 1977 opinion, but had come instead from the FSA into which the Commonwealth defendants had knowingly and willingly entered after active negotiation.
As to the Commonwealth defendants' assertion that the Section 504 right to relief found by this Court in its 1977 opinion had been undermined, the defendants cited a footnote in the Third Circuit decision of Clark v. Cohen, 794 F.2d 79, 84 n.3 (3rd Cir.), cert. denied, 479 U.S. 962, 93 L. Ed. 2d 404, 107 S. Ct. 459 (1986). In Clark, however, the Third Circuit had not addressed Clark's Section 504 claim because the lower court had found that she had failed to prove that she was discriminated against solely on the basis of her handicap. In the footnote relied upon by defendants, the Third Circuit had stated simply that Section 504 "prohibits discrimination against the handicapped in federally funded programs. It imposes no affirmative obligations on the states to furnish services." Id.
In 1977, however, this Court had specifically found a violation under Section 504 of the federal statutory right of the Pennhurst residents to habilitation in a non-discriminatory manner. Further, this Court noted in its 1992 opinion, Halderman, 784 F. Supp. at 224, that Congress, in enacting the Americans with Disabilities Act of 1990, had affirmed that Section 504 prohibits unnecessary segregation and requires reasonable accommodations to provide opportunities for integration. Congress also extended protection to include all state and local programs, regardless of the receipt of federal assistance.
The Commonwealth defendants' final assertion in their 1991 motion was that equity and fairness supported vacating Appendix A. However, as this Court noted in its 1992 opinion, the Commonwealth defendants had still not complied fully with the Court Decree: as of November of 1991-- six years after defendants chose to enter into the Court Decree-- fifteen members of the Pennhurst class had not received appropriate placement. Because vacation of Appendix A would eviscerate the Court Decree, and because the defendants had knowingly and willingly chosen to enter into it after eleven years of active litigation, this Court determined that no considerations of equity and fairness supported defendants' motion. Further, as stated heretofore, this Court expressed its dismay that, having determined that there had been no change in law or fact supporting the Commonwealth defendants' motion, the Court had reached the conclusion that the motion had been yet another attempt by defendants to avoid, or at least to delay, full compliance with the Court Decree.
On September 11, 1992, in a not-for-publication opinion of two and one-half pages, the Third Circuit affirmed. Halderman v. Pennhurst State School and Hospital, 977 F.2d 568 (3rd Cir., 1992). As to their constitutional substantive due process assertions, the Commonwealth defendants had contended on appeal that DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), and its progeny had altered the obligations which a state owes to the mentally retarded. The Third Circuit stated that the Commonwealth defendants read DeShaney far too expansively, in that DeShaney had not involved the rights of those in institutions, and had not eliminated the state's obligations under Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), to provide prospective remedies for inadequate institutional care. The Third Circuit held that, because the law underlying the substantive due process analysis had not changed, it would not reach the Commonwealth defendants' arguments as to equal protection and Section 504. The Third Circuit stated, however, that it was unpersuaded by the Commonwealth's assertion that equity required the vacation of Appendix A.
Having failed in 1989 and again in 1991 in their attempts to avoid the legal obligations they knowingly assumed in 1985 by their acceptance of the Court Decree, the Commonwealth defendants have filed yet another motion. Asserting Eleventh Amendment immunity, the defendants now seek dismissal of all plaintiffs except the United States. Although defendants insist that during the extended litigation in this matter they have not waived the Eleventh Amendment issue they now raise, it would appear to this Court that the Commonwealth defendants, in entering into the Court Decree, have "unequivocally expressed" their consent both to suit and to be bound by the Court Decree. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S. Ct. 900, 907, 79 L. Ed. 2d 67 (1984) (a State may waive sovereign immunity and consent to suit against it in federal court, but the consent must be unequivocally expressed). It would appear to this Court that, in entering into the Court Decree in 1985, the Commonwealth defendants waived any entitlement to raise Eleventh Amendment immunity to enforcement of that Decree. See Kozlowski v. Coughlin, 871 F.2d 241, 244 (2d Cir. 1989) (by entering into the consent decree, the New York State Department of Correctional Services Commissioner waived eleventh amendment immunity). Nevertheless, this Court will address their present argument.
In their 1993 motion, the Commonwealth defendants insist that dismissal of all plaintiffs except the United States is required by the Supreme Court's recent opinion, Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 113 S. Ct. 684 (1993). They insist that dismissal of all plaintiffs except the United States would not change the obligations of the Commonwealth defendants under Appendix A but would merely permit enforcement actions to be brought only by the United States, with the class members becoming intended beneficiaries. As this Court noted above, dismissal of plaintiffs except the United States parties would remove those parties who have been most active in seeking to enforce compliance with the Court Decree.
The Commonwealth defendants assert that any prior uncertainty in Eleventh Amendment law in distinguishing between permitted prospective relief and prohibited retrospective, or compensatory, relief has now been clarified by the Supreme Court in Puerto Rico Aqueduct, 113 S. Ct. at 688. Asserting that a "bright line" has been established by Puerto Rico Aqueduct, they contend that Appendix A has been transformed from permitted prospective relief into prohibited compensatory relief. The Commonwealth defendants base this alleged transformation on a statement by the Third Circuit in its unpublished 1992 opinion, Halderman, No. 92-1186 (Sept. 11, 1992), which defendants interprete as holding that Appendix A is a remedy for inadequate institutional care in the past. The Commonwealth defendants argue that, with the closing of Pennhurst in 1987, there were no further ongoing constitutional violations. They argue further that the Pennhurst class did not take their substantive due process rights to care with them upon their release from Pennhurst. They conclude that under Puerto Rico Aqueduct, Appendix A is relief intended to repair past injury and is thus wholly compensatory. Because the Eleventh Amendment bars awards of compensatory relief to private parties against a state or its officials, the Commonwealth defendants assert that all plaintiffs except the United States must be dismissed.
The present argument of the Commonwealth defendants, like their 1989 and 1991 arguments, is meritless. First, there is nothing in Puerto Rico Aqueduct that might possibly be construed as transforming the prospective injunctive relief of the Court Decree into compensatory relief. In Puerto Rico Aqueduct, the issue before the Supreme Court was whether a district court order denying a claim of Eleventh Amendment immunity by a state or state entity was an appealable order under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). The parties were an autonomous government instrumentality and a private engineering firm with which it had contracted to assist it in the task of upgrading many of its wastewater treatment plants. Puerto Rico Aqueduct, thus, was not a suit in which constitutional claims were made and prospective relief to correct ongoing constitutional and statutory deprivations were sought, nor was it a case brought against state officials.
In Puerto Rico Aqueduct, the Supreme Court discussed the collateral order doctrine, and then noted that the engineering firm had maintained that the doctrine was inapplicable because the Eleventh Amendment did not confer immunity from suit but was merely a defense to liability. The Supreme Court, id. at 688, stated:
Support for this narrow view of the Eleventh Amendment is drawn mainly from Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), under which suits seeking prospective, but not compensatory or other retrospective relief, may be brought against state officials in federal court challenging the constitutionality of official conduct enforcing state law.
The Supreme Court then proceeded to review the doctrine of Ex parte Young. Quoted in full, the Supreme Court stated:
The doctrine of Ex parte Young, which ensures that state officials do not employ the Eleventh Amendment as a means of avoiding compliance with federal law, is regarded as carving out a necessary exception to Eleventh Amendment immunity. See, e.g., Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426, 88 L. Ed. 2d 371 (1985). Moreover, the exception is narrow: it applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in the past, id., at 73, 106 S. Ct. at 428, and has no application in suits against the States and their agencies, which are barred regardless of the relief sought. Cory v. White, [457 U.S. 85, 102 S. Ct. 2325, 72 L. Ed. 2d 694 (1982)]. Rather than defining the nature of Eleventh Amendment immunity, Young and its progeny render the Amendment wholly inapplicable to a certain class of suits. Such suits are deemed to be against officials and not the States or their agencies, which retain their immunity against all suits in federal court.