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Franklin Benjamin, By and Through His Next Friend, andre Yock v. Department of Public Welfare of the

December 12, 2012

FRANKLIN BENJAMIN, BY AND THROUGH HIS NEXT FRIEND, ANDRE YOCK;
RICHARD GROGG AND FRANK EDGETT, BY AND THROUGH THEIR NEXT FRIEND, JOYCE MCCARTHY;
SYLVIA BALDWIN, BY AND THROUGH HER NEXT FRIEND, SHIRL MEYERS;
ANTHONY BEARD, BY AND THROUGH HIS NEXT FRIEND, NICOLE TURMAN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
v.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; SECRETARY OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA CRAIG SPRINGSTEAD, BY AND THROUGH HIS FATHER AND GUARDIAN, BERTIN SPRINGSTEAD;
MARIA MEO, BY AND THROUGH HER MOTHER AND GUARDIAN, GRACE MEO;
DANIEL BASTEK, BY AND THROUGH HIS FATHER AND GUARDIAN, JOHN BASTEK;
MICHAEL STORM, BY AND THROUGH HIS GUARDIAN, POLLY SPARE;
BETH ANN LAMBO, BY AND THROUGH HER FATHER AND GUARDIAN, JOSEPH LAMBO;
RICHARD KOHLER, BY AND THROUGH HIS SISTER AND GUARDIAN, SARA FULLER;
MARIA KASHATUS, BY AND THROUGH HER FATHER AND GUARDIAN, THOMAS KASHATUS;
WILSON SHEPPARD, BY AND THROUGH HIS BROTHER AND NEXT FRIEND ALFRED SHEPPARD, APPELLANTS IN NO. 11-3684 *(PURSUANT TO FED. R. APP. 12(A)) DIANE SOLANO, BY AND THROUGH HER BROTHER AND GUARDIAN CARL A. SOLANO, APPELLANT IN NO. 11-3685 *(PURSUANT TO FED. R. APP. 12(A))



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 1-09-cv-01182) District Judge: Hon. John E. Jones, III

The opinion of the court was delivered by: Cowen, Circuit Judge.

PRECEDENTIAL

Argued October 3, 2012

BEFORE: FUENTES, FISHER and COWEN, Circuit Judges

Counsel for Amicus Curiae The Arc of Pennsylvania for Appellees

OPINION

Plaintiffs-Appellees are individuals with "mental retardation" who reside in intermediate care facilities operated by Defendants-Appellees Department of Public Welfare of the Commonwealth of Pennsylvania and the Secretary of Public Welfare of the Commonwealth of Pennsylvania. By and through their respective next friends, they brought this current class action in the United States District Court for the Middle District of Pennsylvania, alleging that Defendants have failed to offer community services to them and other similarly situated individuals in violation of the integration mandates of the Americans with Disabilities Act and the Rehabilitation Act. In turn, Appellants are several intermediate care facility residents who, by and through their own guardians or next friends, have continued to oppose community placement and, among other things, have sought to intervene in this case. This matter has already been before this Court in a prior appeal, and we ultimately affirmed the District Court‟s denial of a motion to intervene filed by all but one of the current Appellants in connection with the merits stage of this case.

At this juncture, Appellants specifically appeal from the District Court‟s order denying the motions to intervene that they filed in connection with the remedy stage of this litigation as well as from the District Court‟s subsequent order granting final approval to the settlement agreement between Plaintiffs and Defendants. We conclude that the District Court did abuse its discretion by denying intervention as of right pursuant to Federal Rule of Civil Procedure 24(a)(2). Accordingly, we will vacate the District Court‟s intervention order insofar as it denied Appellants‟ motions to intervene as of right in the remedy stage of this litigation as well as its order granting final approval to the parties‟ settlement agreement. We, in turn, will remand this matter to the District Court with specific instructions to grant Appellants‟ motions to intervene as of right in the remedy stage of this litigation as well as to permit Appellants, as proper intervenors, to challenge the settlement agreement and to seek decertification of the class.

I.

As we observed in our prior ruling, the United States Supreme Court established in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), "that it is a violation of the [Americans with Disabilities Act ("ADA")], the [Rehabilitation Act ("RA")], and their implementing regulations to force developmentally disabled patients to reside in institutions when they are able and willing to live in a manner more fully integrated into the community." Benjamin ex rel. Yock v. Dep‟t of Pub. Welfare, 432 F.

App‟x 94, 95 (3d Cir. 2011). "At the same time, Olmstead and the regulations make clear that community based treatment [cannot] be imposed on patients who do not desire it.‟" Id. (quoting Olmstead, 527 U.S. at 602).

The named Plaintiffs-Appellees in this class action are five individuals with "mental retardation" who are institutionalized in intermediate care facilities for persons with "mental retardation" ("ICFs/MR")*fn1 operated by Defendants-Appellees Department of Public Welfare of the Commonwealth of Pennsylvania and the Secretary of Public Welfare of the Commonwealth of Pennsylvania (collectively "DPW"). Franklin Benjamin, Richard Grogg, Frank Edgett, Sylvia Baldwin, and Anthony Beard--by and through their respective next friends and represented by attorneys from the Disability Rights Network of Pennsylvania ("DRN")-- specifically alleged in their amended complaint that DPW has violated the ADA and the RA by failing "to offer and provide Plaintiffs with the opportunity to receive services in integrated, community settings that are most appropriate settings to meet their needs." Benjamin ex rel. Yock v. DPW, 267 F.R.D. 456, 459 (M.D. Pa. 2010) (citation omitted). In their class action allegations, Plaintiffs claimed that "there are approximately 1,272 individuals who reside in Pennsylvania‟s five state-operated ICFs/MR." (JA79.)

Plaintiffs filed an unopposed motion to certify a class under Federal Rule of Civil Procedure 23(b)(2). On September 2, 2009, the District Court entered an order granting this unopposed motion and certifying the following class: "All persons who: (1) currently or in the future will reside in on [sic] of Pennsylvania‟s state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement." (JA39.) DPW, for its part, filed an unsuccessful motion to dismiss.

The individual Appellants are also ICF/MR residents. By and through their guardians or next friends, Appellants have continued to oppose community placement and have sought to participate in this litigation. On November 10, 2009, eight of the nine current Appellants--Craig Springstead, Maria Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, and Wilson Sheppard (who was originally a Plaintiff in this action)-- moved to intervene ("Springstead Intervenors").*fn2 The existing parties opposed any intervention, and the District Court denied this initial intervention motion in a memorandum and order entered on March 10, 2010.

According to the District Court, the Springstead Intervenors met the applicable timeliness requirement but then failed to satisfy the remaining prerequisites for intervention as of right pursuant to Federal Rule of Civil Procedure 24(a)(2) (i.e., a sufficient interest in the litigation, the interest may be affected or impaired as a practical matter by the disposition of the action, and the interest is not adequately represented by an existing party). It also concluded that permissive intervention under Federal Rule of Civil Procedure 24(b) was unwarranted.

The Springstead Intervenors appealed. They were supported in this appeal by current Appellant Diane Solano (by and through her brother and guardian, Carl Solano, Esquire), who appeared as an Amicus.

While this appeal was pending, the existing parties filed cross-motions for summary judgment. On January 27, 2011, the District Court granted Plaintiffs‟ motion with respect to the underlying liability of DPW. See Benjamin ex rel. Yock v. DPW, 768 F. Supp. 2d 747, 748-57 (M.D. Pa. 2011). Specifically, it entered judgment in favor of Plaintiffs and all others similarly situated and declared that DPW was still not in compliance with the integration mandates established by the ADA and the RA with respect to these individuals. Acknowledging the Commonwealth‟s budgetary constraints and DPW‟s own limited resources, the District Court stated that the DPW cannot continue its practice of unnecessary segregation. However, the District Court did not believe it was in a position to issue the requested injunction "given the need for extensive detail therein and eventual oversight for any such relief provided." Id. at 757. It therefore stated that this action "will remain open until determination of the proper remedy" and scheduled a conference call to address the need for further submissions as well as for a possible hearing on the question of injunctive relief. Id. The parties were expressly encouraged to return to mediation armed with "this mandate" and attempt "to formulate a resolution that implements a realistic plan that fully complies with the ADA and RA." Id. at 757 n.12.

In a non-precedential opinion filed on April 5, 2011, this Court disposed of the appeal filed by the Springstead Intervenors. See Benjamin ex rel. Yock v. DPW, 432 F. App‟x 94, 96-99 (3d Cir. 2011). Generally applying an abuse of discretion standard of review, we affirmed the District Court‟s denial of both intervention as of right and permissive intervention.

Initially, Plaintiffs "recognize that Olmstead requires that patients eligible and desirious of community placement be discharged into community-based programs [only] if placement can be reasonably accommodated, taking into account the resources of the state and the needs of other persons in its care.‟" Id. (quoting Frederick L. v. DPW, 422 F.3d 151, 156-57 (3d Cir. 2005)). "By way of remedy,"

Plaintiffs sought an injunction directing DPW:

. . . (1) to maintain a "Planning List that consists of all state ICF/MR residents who have been identified as not opposed to discharge to community services," (2) to promptly place "on the Planning List the named Plaintiffs and any other state ICF/MR residents identified by the ICF/MR Facility Directors as having affirmatively expressed their desire to be discharged to the community," (3) to question "ICF/MR residents and/or their involved family or guardians" at least annually regarding their current preference in order to keep the Planning List current, and (4) beginning in fiscal year 2011-12, to "develop and implement a viable integration plan that provides community services to at least 100 individuals on the Planning List annually for each of the first three years" and for at least 75 individuals from that list thereafter until all on the list have been discharged.

Id. at 96-97 (citation omitted). We further noted that summary judgment was entered in favor of Plaintiffs "on the liability issue" and that "[t]he remedy issue remains before [the District Court]." Id. at 97.

With respect to intervention as of right under Rule 24(a)(2), the Springstead Intervenors specifically "insist that their interest in remaining in their current institutional setting is clearly sufficient to warrant intervention." Id. at 98. We, however, agreed with the District Court "that Intervenors‟ interest in maintaining their current form of care is not directly in jeopardy in this litigation." Id. In other words:

The current parties have deliberately defined the class and the relief sought so that Intervenors‟ right to choose institutional treatment would not be affected.

The District Court made its intent clear. The class it certified expressly excludes all current and future residents of ICFs/MR who oppose, or would at any relevant time in the future oppose, community placement. It therefore excludes Intervenors, and they will not be personally bound by anything that is decided in this litigation. It follows that, if the DPW should threaten in the future to coerce them into leaving their current institutions, Intervenors would be free to file their own suit and litigate whether they have a legally enforceable right to remain in the institution where they currently reside.

Id. (footnotes omitted). We observed in a footnote that the Springstead Intervenors were critical of the class definition because it purportedly "requires an inquiry into the mental state of class members." Id. at 98 n.3. Nevertheless, this contention, regardless of "[w]hether [it] poses a problem for other purposes," did not pose one in the current context. Id. "It is sufficient for present purposes to hold that their current opposition to community placement currently excludes them from the class. If they hereafter are persuaded to drop that opposition, they will no longer be in a position to represent the interest they seek to defend here." Id. We likewise refused to express an opinion as to whether the Springstead Intervenors "have a legally enforceable right to remain in the institution where they currently reside," id. at 98, and, instead, merely "assume, without deciding, that they do," id. at 98 n.4.

Having determined that the Springstead Intervenors were not class members, we then considered their alternative theory that " their interest is likely to be affected as a practical matter by the outcome of the lawsuit because the relief sought by Plaintiffs is likely to result in closure of ICFs/MR.‟" Id. at 98 (citation omitted). While they did not suggest a danger that "any remedy afforded to Plaintiffs in this action will include a requirement that an ICF/MR be closed," the Springstead Intervenors did fear "that budget constraints will cause the DPW to allocate its resources in a different manner if it is required by this suit to satisfy its obligations under the ADA and that this may result in its closing one or more ICFs/MR." Id. We, however, rejected this theory:

While it is, of course, possible that providing additional community placements will occasion some reallocation of the limited resources of the DPW, it is not possible to determine at this point whether that reallocation will result in the closing of one or more ICFs/MR, and we decline to speculate on that matter. It is sufficient to hold that any possible impact on Intervenors‟ interest in maintaining their current institutional care is not the kind of direct impact that gives rise to a right to intervene. In virtually every suit successfully prosecuted against a governmental entity, the judgment will occasion some reallocation of limited public resources. Every competitor for those limited resources has an interest that potentially may be adversely affected by that reallocation. We have found no case, however, suggesting that the interest of such a competitor justifies intervention in litigation addressing issues in which he or she has no other interest. If such a competitor believes that he or she has an enforceable right for the services of the public entity, he or she may bring his or her own suit.

Where a party has an interest in property over which the court has taken jurisdiction, and the party has an interest in "being heard with respect to the disposition of [a particular] fund[,] . such an interest is sufficient to support an applicant‟s intervention as of right." Mountain Top Condominium Ass‟n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 368 (3d Cir. 1995). Here, the court has not taken control of DPW funds and Intervenors do not have a legal right to particular funds. They may have a right to certain benefits from the state, but not a right to a particular fund.

In [Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987)], we held that a District Attorney lacked the right to intervene in a suit seeking a cap on the prison population where the DA argued such a ceiling would limit his ability to carry out his duties as a law enforcement officer. 820 F.2d at 601. Because the DA did not administer the prison, and the consent decree placing a ceiling on the prison population would only tangentially affect his ability to prosecute, we held that he had no right to intervene. See [Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969-70 (3d Cir. 1998)]. Similarly here, the relief sought by Plaintiffs-- that the DPW offer a choice of community placement to ICF/MR patients who do not oppose such ...


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