IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

WILLIE M., a minor; JEANETTE M.,

)

a minor; TOM H., a minor; TIMOTHY B.,)

a minor, all by their next friend, )

ALBERT SINGER, on behalf of them- )

selves and all others simlarly

situated,

Plaintiffs, H I

v.

JAMES B. HUNT, JR., Governor,

)

State of North Carolina; SARAH T. )

MORROW, Secretary, Department of

)

Human Resources, State of North

)

Carolina: A. CRAIG PHILLIPS, State )

Superintendent of Public Instruction,)

State of North Carolina; DAVID

)

BRUTON, Chairman, North Carolina

)

State Board of Education; HOSEA C. )

BROWER, Director, Samarkand Manor, )

Division of Youth Services, Depart- )

ment of Human Resources, State of )

North Carolina; C. B. HAYSLETT,

)

Director, C. A. Dillon School,

)

Division of Youth Services, Depart- )

ment of Human Resources, State of )

North Carolina; FIELD MONTGOMERY, )

Director, Cherry Hospital, Division )

of Mental Health, Mental Retardation )

and Substance Abuse Services, Depart-)

ment of Human Resources, State of )

North Carolina; JOHN A. WILLIAMS, )

State Budget Officer, State of North )

Carolina; J A. PORTER, Controller, )

Department of Public Instruction, )

State of North Carolina; GEORGE

)

BASON, District Court Judge, 10th )

Judicial District, State of North )

Carolina; LARRY T. BLACK, District )

Court Judge, 26th Judicial District, )

State of North Carolina,

Defendants.

Willie M. v. Hunt
JI-NC-003-001
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT 1. This is a class action for declaratory and injunctive relief on behalf of the named plaintiffs and the class consisting of North Carolina children under the age of eiqhteen who now or will in the future suffer from serious emotional, mental or neurological handicaps which handicaps have been accompanied by behavior which is characterized as violent or assaultive and who are, or will in the future1 be. institutionalized or otherwise placed in residential pron m m s which fail to provide appropriate treatment and educational programs. Plaintiffs seek relief arising out of the Defendants'

failure to provide adequate or appropriate treatment and educational programs in the least restrictive setting possible thereby violating the Plaintiffs' rights under the Fifth Amendment, Eighth Amendment, the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, the Education for All Handicapped Children Act, §504 of the Rehabilitation Act of 1973, and special education and right to treatment statutes.
- II. JURISDICTION AND RELATED MATTERS 2. Jurisdiction is conferred this on Court by 28 U.S.C. §1343(3) and (4) for actions arising under 42 U.S.C. §1983. The amount in controversy exceeds $10,000 and there is jurisdiction under 28 U.S.C. §1331. Plaintiffs' action for declaratory relief is authorized by 28 U.S.C. §2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure. Plaintiffs' action for injunctive relief is authorized by Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs' claims under the provision of the North Carolina General Statutes set out hereinafter are all state law claims which may properly be considered under this Court's exercise of pendent jurisdiction.
III. PARTIES Plaintiffs
3. Plaintiff Willie M. is an eleven-year-old resident and citizen of Mecklenburg County, North Carolina. He is currently being held against his will at the Samarkand Manor in Eagle Springs, North Carolina, a facility of the Division of Youth Services of the North Carolina Department of Human Resources.
4. Plaintiff Jeanette M. is a sixteen-year-old citizen and resident of Catawba County, North Carolina. She is presently being held against her will at the C. A. Dillon School in Butner, North Carolina, a facility of the Division of Youth Services of the North Carolina Department of Human Resources.
5. Plaintiff Tom H. is a sixteen-year-old citizen and resident of Wake County, North Carolina. He is currently being held against his will at the C. A. Dillon School in Butner, North Carolina, a facility of the Division of Youth Services of

the North Carolina Department of Human Resources. 6. Plaintiff Timothy B. is a seventeen-year-old
citizen and resident of Craven County, North Carolina. He is currently being held against his will at Cherry Hospital, a state psychiatric facility administered by the Division of Mental Health, Mental Retardation and Substance Abuse Services of the North Carolina Department of Human Resources.
7. Albert Singer is a citizen of North Carolina and a resident of Wake County, North Carolina. He sues on behalf of the above-named children as next friend. Minor Plaintiffs omit their full names in order to protect their identities. Tt is Plaintiffs' belief that the use of their full names will subject them to public humiliation and embarrassment.
Defendants
8. Defendant James B. Hunt, Jr., is a citizen of the State of North Carolina. He is the Governor of the State of North Carolina and the ex officio Director of the Budget for the State. As Director of the Budget, Hunt has extensive authority for reviewing the budget requests of State agencies, determination of the budgetary needs of each State agency and for submission to the North Carolina General Assemby of a proposed budget for all State agencies.
9. Defendant Sarah T. Morrow is the Secretary of the Department of Human Resources of the State of North Carolina. She has statutory responsibility for the administration of the Department and its Divisions. She has ultimate responsibility for the administration of the State's treatment and educational programs for children in the state who are committed to institutions on account of mental disabilities or delinquency. She is further empowered to issue such regulations and policies as are necessary to carry out the above statutory responsibilities.
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10. Defendant A. Craig Phillips is the Superintendent of Public Instruction of North Carolina. In this capacity he is the Secretary and Chief Administrative Officer of the State Board of Education and as such is responsible for carrying out the educational programs developed and adopted by the North Carolina State Board of Education.
11. Defendant David Bruton is the Chariman of the North Carolina State Board of Education which is the official state government body responsible for developing and implementing the educational programs in North Carolina for the Plaintiffs and their class.
12. Defendant Hosea C. Brower is the Director of the Samarkand Manor in Eagle Springs, North Carolina, a facility of the Devision of Youth Services of the North Carolina Department of Human Resources.
13. Defendant C. B. Hayslett is the Director of the C. A. Dillon School in Butner, North Carolina, a facility of the Division of Youth Services of the North Carolina Department of Human Resources.
14. Defendant Field Montgomery is the Director of Cherry Hospital Goldsboro, North Carolina, a facility of the Division of Mental Health, Mental Retardation and Substance Abuse Services of the North Carolina Department of Human Resources.
15. In their capacities as directors of these facilities administered by the North Carolina Department of Human Resources, Defendants Hayslett, Brower and Montgomery are responsible for administering the policies and regulations issued by the Department of Human Resources regarding the treatment of the Plaintiff class.
16. Defendant John A. Williams is a citizen of the State of North Carolina and the State Budget Officer of the State of North Carolina. In this capacity he is responsible for authorizing the issuance of funds from the State treasury to various state agencies from money appropriated for such agencies by the North Carolina General Assembly. N.C.G.S. §143-3.2.
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17. Defendant Larry T. Black is a citizen of the State of North Carolina and is a District Judge in the 26th Judicial District of North Carolina. In his capacity as District Court Judge, Black is charged by N.C.G.S. §7A-286 with the duty of selecting the disposition in a juvenile case tried before him which provides for the protection, treatment, rehabilitation or correction of the child.
18. Defendant George Bason is a citizen of the State of North Carolina and is the Chief District Court Judge for the 10th Judicial District of North Carolina. In his capacity as a District-Court Judge, Bason is charged by N.C.G.S. S7A-286 with the duty of selecting the disposition in a juvenile case tried before him which provides for the protection, treatment, rehabilitation or correction of the child.
19. The Defendants are sued in their official capacities and at all times material to this action, they have acted under color of state law, custom and usage of the State of North Carolina.
IV. CLASS ACTION
20. Plaintiffs bring this action pursuant to Rule 23 (b)(2) of the Federal Rules of Civil Procedure, on their own behalf and on behalf of all other North Carolina citizens under the age of eighteen who:
a. now or will in the future suffer from serious emotional, mental or neurological handicaps, which handicaps have been accompanied by behavior which is characterized as violent or assaultive; and,
b. are, or will be in the future, involuntarily institutionalized or otherwise placed in residential programs; and
c. for whom the Defendants have not provided appropriate treatment and educational programs.
21. The members of the class are so numerous that joinder of all members is impracticable. Upon information and belief there are over 200 handicapped children in North Carolina who come within the definition of this class. The predominant questions of law and fact are common to all members of the class, including the alleged policies and practices challenged in this action which Defendants apply consistently to similarly situated members of the class. The claims of the named Plaintiffs are typical of the claims of the class and the named Plaintiffs will fairly and adequately protect the interests of the entire class. The declaratory and injunctive relief sought by the named Plaintiffs is typical of the relief sought by all members of the class.
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V. STATEMENT OF FACTS
Plaintiff Willie M.
22. The Plaintiff Willie M. is an eleven-year-old boy who has been diagnosed as being emotionally disturbed with unsocialized aggiession and other handicaps. Because of this condition he was removed from his normal school setting in the Charlotte-Mecklenburg School system in 1978 and placed into programs for the learning disabled and the emotionally handicapped which are inappropriate to meet the jneeds of Willie M.
23. While in the program for emotionally handicapped students, Willie M. was brought before the Juvenile Court of the 26th Judicial District on separate juvenile petitions alleging delinquency for committing larceny and that he was an abused and neglected child. Willie M. was subsequently adjudicated to be a delinquent child by the Defendant Judge Black.
24. Prior to the disposition of Willie M.'s case numerous attempts were made by his juvenile counselor and school social worker to locate an appropriate program for Willie but none was found to be suitable because of Willie's age, physical size, mental abilities, emotional disorders and behavior. Thereafter, the Defendant Judge Black committed Willie against his will to the custody of the Division of Youth Services of the North Carolina Department of Human Resources.
25. Since the date of his commitment to the Division of Youth Services on April 13, 1979, Willie M. has suffered substantial injury to his mental and physical well-being. Upon information and belief Willie M. is not receiving appropriate treatment nor participating in educational programs which are designed to meet his particular needs. The Defendants' agents at the Stonewall Jackson School in Concord where Willie was housed prior to his transfer to Samarkand Manor regularly placed him in a secluded area as a means of controlling his behavior.
26. On information and belief Willie M. suffers from a treatable condition which could be improved and allow him to live in a less restrictive environment if appropriate treatment and educational programs were available to him. On information and belief no such programs are made available to Willie M. by the Defendants or by any other source.
27. On information and belief the Defendants have, or should have had, long-standing knowledge of the conditions and needs of the Plaintiff but the Defendants, both jointly and separately, have refused and continued to refuse to provide appropriate treatment and educational programs for the Plaintiff. The confinement of Willie M. is cruel and unusual and results
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in his being punished for physical and emotional problems which are presently beyond his control.
Plaintiff Tom H. 28. Plaintiff Tom H. is a sixteen-year-old boy who has been diagnosed as suffering from neurological and emotional disorders and other handicaps. As a result of these physical and emotional disabilities he has been held in legal custody of various counties of the State of North Carolina and of the State of North since June, 1972. The Defendants knew, or should have known, since that date, that Tom H. was in need of special treatment and educational programs. 29. In March, 1978, Tom H. was adjudicated to be delinquent by the Defendant Judge Bason and ordered to be admitted to Dorothea Dix Hospital, a facility of the Department of Human Resources, for evaluation and treatment of his behavioral problems prior to final disposition of the juvenile case- On information and belief the hospital was unable to provide appropriate evaluation, treatment or educational programs for the Plaintiff and he was discharged from the hospital. Thereafter he was confined at the Wake County Detention Center for 131 days awaiting placement in an appropriate program. 30. On May 25, 19 79, Tom H. was committed against his will to the C. A. Dillon School by the Defendant Judge Bason. On information and belief Tom H. is not receiving appropriate treatment nor participating in educational programs which are designed to ' meet his particular needs. Tom has suffered substantial injury to his mental and physical well-being. 31. On information and belief Tom H.'s physical and emotional problems are treatable and could be improved and allow him to live in a less restrictive environment if appropriate treatment and educational programs were available to him. The confinement of Plaintiff Tom H. at the Dillon School is cruel and unusual in that his emotional and physical illnesses which have been characterized by occasional and unpredictable behavior having caused Tom H. to be adjudicated a delinquent, are presently beyond his control.
Plaintiff Jeanette M. 32. Jeanette M. is a fifteen-year-old girl who has been diagnosed as a child with chronic emotional problems and other handicaps which are manifested by aggressive and disruptive behavior. Plaintiff Jeanette M. has experienced problems caused by anti-social behavior for the past several years, having been placed in special education classes and community residential programs which were not appropriate to her needs.
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33. In October, 1976 Plaintiff Jeanette M. was adjudicated a delinquent child and committed against her will to the C. A. Dillon School. Since that time she has also been housed at the Juvenile Evaluation Center in Swannanoa and at the Samarkand Manor in Eagle Springs. On information and belief none of the programs provided by Defendants to Plaintiff Jeanette M. since her commitment to the Division of Yourth Services in 1976 has been appropriate to meet her particular needs. She has suffered substantial injury to her mental and physical well-being.
34. Her emotional problems are treatable and could be improved substantially and allow her to live in a less restrictive. environment if appropriate treatment and educational programs were available to her. The Defendants have or should have had longstanding knowledge of the serious emotional handicaps and the needs of Plaintiff Jeanette M. but Defendants have refused to provide appropriate treatment and educational programs. Her present confinement is cruel and unusual in that she is being punished for problems which are presently beyond her control.
Plaintiff Timothy B.
35. Plaintiff Timothy B. is a seventeen-year-old boy who has been diagnosed as having a severe emotional disorder, organic brain syndrome and other handicaps. These handicaps have been accompanied by behavior toward other persons which is characterized as agressive and resulted in the placement of Plaintiff Timothy B. in a number of residential programs during the past • several years.
36. Plaintiff Timothy B.'s legal guardian, the Craven County Department of Social Services, admitted him to Cherry Hospital in Goldsboro, North Carolina in November, 1978. At Cherry Hospital Timothy B. has been denied admission to the adolescent unit because of his particular emotional and behavioral probelms and he currently resides in an inappropriate "high control unit" at the hospital.
37. On information and belief no appropriate treatment and educational programs are being provided for Timothy B. at this time. Timothy B.'s emotional and physical handicaps are treatable and could be improved and allow him to reside in less restrictive environments if appropriate treatment and educational programs were available to him. Defendants have, or should have, known that Plaintiff Timothy B. is in immediate need of appropriate treatment and educational programs and the Defendants have failed and refused to provide such programs. Timothy B.'s continued confinement by the Defendants is cruel and unusual in that he is being punished for problems which are presently beyond his control.

VI. STATEMENT OF CLAIM OF THE CLASS
38. On information and belief there are more than two hundred children in the State of North Carolina who suffer from serious emotional, mental or neurological handicaps which are accompanied by behavior which is characterized as violent or assaultive. These children are, or will be in the future, confined against their will by the Defendants but these children will not receive the special treatment and educational programs which are appropriate for their needs. The federal Education for All Handicapped Children Act (P.L. 94-152) and the state's special education statutes (N.C.G.S. S115-363 e_t seq.) require the Defendants to provide appropriate educational programs for this class of children. These children are furthermore entitled to treatment programs in the least restrictive setting by the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution. On information and belief the Defendants have failed to provide the treatment and educational programs designed to fulfill the particular needs of these children.
39. Because the treatment and educational programs that do exist in the state receive federal funding, they are required by §504 of the Rehabilitation Act of 1973 not to deny a person participation in such programs on the basis of a handicap alone. On information and belief the Defendants' method of providing programs to children in the Plaintiff class denies these children participation in appropriate programs because of their handicaps.
40. On information and belief the Defendant Morrow and others in planning programs for the large number of children who. suffer from the handicaps of the Plaintiff class have not complied with the state right to treatment statutes pertaining to children in training schools (G.S.S134A-20) and mental facilities (G.S.S12255.14(d)). Defendants are well aware of these inadequacies and even encouraged the passage of legislation in 1979 which would have established treatment programs for some members of the Plaintiff class.
41. The named and class Plaintiffs therefore continue to be confined in institutions which fail to provide appropriate treatment and educational programs for them. They continue to suffer irreparable harm both physically and emotionally, and have no adequate remedy at law.
VII. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
42. The above-described policies and practices of the Defendants and the above-described failures and refusals to
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provide adequate or appropriate treatment and educational programs, and their failure to provide this treatment and education in the least restrictive setting consistent with the Plaintiffs' needs, deny the named and class Plaintiffs their right to due process of law and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution.
SECOND CLAIM FOR RELIEF 43. The failure of the Defendants to provide adequate or appropriate treatment and educational programs for the named and class Plaintiffs has resulted and will in the future result in the confinement of these named and class Plaintiffs for the sole purpose of punishment in violation of the named and class Plaintiffs' rights against cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution.
THIRD CLAIM FOR RELIEF 44. The federal Education of All Handicapped Children Act (P.L. 94-142) provides that all public agencies within the state, including state and local educational agencies, must insure that all handicapped children have available to them a free appropriate public education which includes special education and related services to meet their individual needs. Furthermore, the State is required to identify, locate, evaluate and appropriately place all handicapped children. A free appropriate education may be provided in a public school, or if necessary, in an approved private school. 20 U.S.C.§1412(1), (6); 1413 (a)(4)(B); 45 C.F.R. §121a e_t seq. The policies and practices of the Defendants described above which deny, and will in the future deny, the named and class Plaintiffs appropriate educational programs and related services violate their rights under P.L. 94-142.
FOURTH CLAIM FOR RELIEF 45. Article 45 of Chapter 115 of the General Statutes of North Carolina (N.C.G.S.§115-363 et seq.) provides that all children with special needs in North Carolina shall have access to a free, appropriate public education, including special education and related services to meet their individual needs. The policies and practices of the Defendants described above which deny, and will in the future deny, the named and class Plaintiffs appropriate educational programs and related services violates their rights under N.C.G.S.§115-363 et seg.
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FIFTH CLAIM FOR RELIEF 46. On information and belief Defendants have acknowledged that they do not provide programs that are appropriate for the members of the Plaintiff class who are residents of treatment facilities. N.C.G.S. S122-55.14(d) requires that each minor patient of a treatment facility shall have a right to appropriate treatment for mental and physical ailments and for the prevention of illness or disability and shall have a right to this treatment in a setting which allows him to live as normally as possible. Defendants are denying Plaintiffs thier statutory right to treatment under North Carolina law.
SIXTH CLAIM FOR RELIEF 47. North Carolina requires that each child in an institution for committed delinquents under Chapter 134A of the North Carolina Statutes receive appropriate treatment according to his needs. N.C.G.S. S134A-20. The above-described policies and practices of the Defendants result in the placement of many of the named and class Plaintiffs in state insitutions under Chapter 134A but without providing the Plaintiffs with appropriate treatment, thereby denying these Plaintiffs their right to treatment under state law.
SEVENTH CLAIM FOR RELIEF 48. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794) provides that no handicapped individual, as defined by 29 U.S.C. §706(6), shall be solely by reason of his handicap, denied participation in, denied the benefits of, or be subjected to discrimination under any program receiving federal financial assistance. Named and class Plaintiffs are denied, and will in the future be denied, participation in and the benefits of treatment programs by the Defendants in violation of Section 504 solely because of their handicaps.
VIII. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray: A. That this Court take jurisdiction of this matter. B. That an order issue permitting this action to proceed as a class action under Rule 23 (b)(2) of the Federal Rules of Civil Procedure. C. That this Court grant declaratory relief prusuant to 28 U.S.C.SS2201 and 2202, declaring that the Defendants in this action are in violation of the above-cited statutory and constitutional provisions as set forth herein. D. That this court order the following preliminary and and permanant injunctive relief:
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1. The Defendants immediately provide a temporary program on behalf of the named Plaintiffs which shall both evaluate the treatment and educational needs of the named Plaintiffs and provide for the named Plaintiffs appropriate treatment and educational programs in settings which are the least restrictive alternative consistent with the individual Plaintiffs' legitimate treatment needs.
2. The Defendants immediately initiate a program to identify and evaluate individual members of the Plaintiff class for the purpose of determining the appropriate treatment and educational needs of these Plaintiffs.
E-. That the Court order the Defendants to develop and provide, at the Defendants' expense, appropriate individual treatment and educational programs for all the named Plaintiffs and the members of their class.
F. That this Court retain jurisdiction over Defendants until such time as the Court is satisfied that their acts and omissions alleged herein no longer exist and will not reoccur.
G. That this Court grant such other relief as it deems necessary and proper.
H. That this Court order the payment of reasonable attorney's fees and costs to the Plaintiffs.
This the ? ^ day of October, 1979.
ATTORNEYS FOR PLAINTIFFS
Robert D. McDonnell Suite 723 Law Building Charlotte, NC 28202 (704) 332-6141
Helinda Lawrence Smith, Patterson, Follin, Curtis,
James and Harkavy 407 Raleigh Building 5 W. Hargett Street Raleigh, NC 27601 (919) 755-1812
Anne Slifkin Thorp, Anderson and Slifkin Box 4 70 Raleigh, NC 27602 (919) 828-2467

John A.Decker Carolina Legal Assistance for Mental / He/lth / 102/McBryde Building TJorothea Dix Hospital
Raleigh, N.C. 27611 (919) 733-5136

Of Counsel:
Sandra Johnson Johnson and Johnson Suite 510 Insurance Building Raleigh, N.C. 27603 (919) 828-6675
J. Jerome Hartzell Akins, Mann, Pike & Merritt P.O. Box 17884 Raleigh, N.C. 27619

Loren Warboys Michael Dale Elizabeth Jamison Juvenile Justice Legal Advocacy
Project 693 Mission Street Seventh Floor San Francisco, Ca. 94105 (415) 543-3379

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 U. S. DISTRICT C0UR1

UNITED STATES DISTRICT COURT

^' ^

FOR .THE

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

WILLIE M., a minor, et al., Plaintiffs,
v. JAMES B. HUNT, JR., et al.,
Defendants.

CIVIL ACTION NO. CC 79-0294 ) ) ) ' SECOND SET OF STIPULATIONS ) )

Plaintiffs and defendants (except Black and Bason) hereby stipulate to the following and agree to the inclusion of these stipulations in an order by the Court in this matter:
JURISDICTION 1. This Court has jurisdiction of the subject matter of this action pursuant to 29 U.S.C. §1343, 42 U.S.C. §1983 and 28 U.S.C. §1331. The Court has jurisdiction over the plaintiffs' state claims arising under state law under the Court's exercise of pendent jurisdiction.
CLASS 2. This action is properly maintained as a class action and is appropriately designated as coming within the provisions of Rule 23(b)(2) of the Federal Rules of Civil Procedure.
3. Plaintiffs in this action are the named plaintiffs, Willie M., Jeanette M., Tom H., and Timothy B., and plaintiff class, which
includes all minors who are citizens of the State of North
Carolina and who:

Willie M. v. Hunt

JI-NC-003-002

emotional, mental or neurological handicaps, which handicaps have been acoompanied by behavior which is characterized as violent or assaultive; and
b. are, or will be in the future, involuntarily institutionalized or otherwise placed in residential programs; and
c. for whom the defendants have not provided appropriate treatment and educational programs.
Subpart (b) above includes:
1. Minors who are mentally ill as defined by N.C.G.S. §122-36 (d)(ii) and for whom application for evaluation in or admission to a treatment facility is sought pursuant to Article 4 of Chapter 122 of the General Statutes of North Carolina, whether such minor is accepted for evaluation or admitted to such facility or not.
2. Minors referred to an area mental health, mental retardation or substance abuse director or local mental health director pursuant to N.C.G.S. 7A-647(3) for whom residential treatment or placement is recommended.
3. Minors placed in residential programs as a condition of probation pursuant to N.C.G.S. §7A-649(1).
4. Minors ordered to a professional residential treatment program pursuant to N.C.G.S. §7A-649(6).
5. Minors committed to a mental health facility or treatment facility pursuant to Article 5A of Chapter 122 of the General Statutes of North Carolina.
6. Minors committed to the custody of the Division of Youth Services pursuant to N.C.G.S. &7A-649(10).
PLAINTIFFS' RIGHTS
4. Plaintiffs have the right to appropriate treatment as provided
by the Fourteenth Amendment to the United States Constitution.
5. Plaintiffs committed to the custody of the Division of Youth
Services pursuant to Article 7A of the General Statutes of North
Carolina have a right to appropriate treatment under N.C.G.S.
§134A-20.

6. Plaintiffs who are residents of a treatment facility as defined by N.C.G.S. §122-36(g) have a right to appropriate treatment under N.C.G.S. §122-56.
7. Plaintiffs have a right to a free appropriate public education
in the least restrictive environment as provided for and defined
in the Education for All Handicapped Children Act, 20 U.S.C. §1411,
et seq. , and implementing regulations, 45 C.F.R. 121A.1, e_t seq.
8. Plaintiffs have a right to free appropriate public education in
the least restrictive environment as provided for by and defined
in N.C.G.S. §115-363, et seq., and implementing regulations, 16
N.C.A.C. 2E.1500, et seq.
DEFENDANTS' OBLIGATIONS
9. In recognition of the above-stated rights, defendants agree
and acknowledge their obligation to provide all plaintiffs with
appropriate treatment. The scope of defendants' obligation shall
be as follows:
(A) Each plaintiff shall be provided habilitation, including medical treatment, education, training and care, suited to his needs, which affords him a reasonable chance to acquire and maintain those life skills that enable him to cope as effectively as his own capabilities permit with the demands of his own person and of his environment and to raise the level of his physical, mental and social efficiency. Such habilitation shall create .areasonable expectation of progress toward the goal of independent community living. Defendants do not guarantee each plaintiff a "cure", but do guarantee each plaintiff a program of habilitation which is a good faith effort to accomplish the goals set forth herein.
(B) Each plaintiff shall be provided with the least restrictive, i.e., most normal, living conditions appropriate for that person. Among the factors to be considered in determining the least restrictive living conditions appropriate for the individual are the need to minimize institutionalization and the need to minimize the possibility of harm to the individual and society.

(C) The goal of habilitation shall be to enable each plaintiff as appropriate for that individual, to move from:
(1) Living and programming segregrated from the community to living and programming integrated with the community;
(2) More structured living to less structured living;
(3) Group residences to individual residences; and
(A) Dependent living to independent living.
(D) Each plaintiff shall be provided such placements and services as are actually needed as determined by an individualized habilitation plan rather than such placements and services as are currently available. If placements and services actually needed are not available, the person shall be entitled to have them developed and implemented within a reasonable period. Prior to development and implementation of needed placements and services, the person shall be entitled to placement and services which meet as nearly as possible his actual needs.
10. Defendants agree that the habilitation program for an individual
plaintiff, provided for herein, may continue for a reasonable period
beyond his eighteeneth birthday if the individual:
a. continues to be in need of such treatment and will benefit from continuing placement or involvement in the program in which he is receiving treatment on his eighteenth birthday; and
b. he voluntarily agrees to continue treatment in that program in a manner consistent with state law or is confined pursuant to applicable state law.
REMEDY
11. The parties agree that this Court's jurisdiction over this
matter shall continue.
12. The parties agree that an independent panel of experts in
treatment and education shall be established to review and make
recommendations with respect to identification and evaluation of
plaintiffs and development of appropriate treatment and education
plans and programs for plaintiffs. The specific procedures for
the operation of this panel shall be developed after further con-
sultation between the parties and with the Court.

13. The parties agree that Jeanette M. will remain in her current placement at the Adolescent Admission Unit at Dorothea Dix Hospital for a limited period of time in order that a more complete evaluation of her treatment and educational needs can be made and an habilitation plan satisfying the standards of paragraph 9 of these stipulations can be developed and implemented.
14. The parties agree that Willie M. will remain in his current placement at the Adolescent Unit at Dorothea Dix Hospital for a limited period of time in order that a habilitation plan satisfying the standards of paragraph 9 of these stipulations can be developed and implemented.
15. The parties agree that the defendants will immediately develop and implement a habilitation plan for Tom H. which is designed to remove him from C.A. Dillon School and which will satisfy the standards of paragraph 9 of these stipulations.
16. The parties agree that Timothy B. will remain in his current placement at Caramore Community and that defendants will assure continued funding for this placement at least through June 30, 1981.
17. The parties agree that the panel's review and recommendations with respect to development and implementation of appropriate treatment and education plans for the named plaintiffs shall be expedited in accordance with a timetable to be developed by the parties and the Court.
18. The parties agree that nothing herein shall impose an obligation on, or grant authority to defendants to involuntarily confine an individual beyond the scope of their statutory and constitutional authority.

Respectfully submitted. This 2 day of Septe-ber, 1980.
COUNSEL FOR PLAINTIFFS

Robert D. McDonnell Suite 723 Law Building Charlotte, North Carolina Telephone: (704) 332-6141

282C2

Melinca Lawrence Smith, Patterson, Follin,
Curtis, James l Harkavy 1010 Raleigh Building 5 West Hargett Street Raleigh, North Carolina 27601 Telephone: (919) 755-1812

/

/

Christine Heinberg

^ (

Carolina Legal Assistance-for

Mental Health

102 McDryde Building

Dorothea Dix Hospital

Raleigh, North Carolina 27611

Telephone: (919) 733-5136

^Loren Warboys Michael Dale Elizabeth Jameson Juvenile Justice Legal Advocacy
Project 693 Mission Street Seventh Floor San Francisco, California 94105 Telephone: (415) 543-3379

Sandra Johnson ft Johnson and Jomson Suite 510 Insurance Building Raleigh, North Carolina 2nr
Telephone: (919) 828-0675,

COUNSEL FOR DEFENDANTS

J.fileEorr.e Hartze AkL/.sU Mann, Pike & l.Verritt Post ijCfice Box 1 ^ Raleigh, North Carolina 27619 Telephone: (919) 781-6400

R'JF'JS L. ED.XISTEN Attorney General William F. O'Connell Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Telephone: (919) 733-461$

EveretteNolar.d Assistant Attorney; General

Mansfield Shaber Associate Attorney

 
 Willie M. v. Hunt
llillllll

~ *-

J'-NC-003-003

MH 2 2 !998

United States-District Court u.s. DISTRICT COURT Western District Of North Carolinaw DIST 0F N c.

Charlotte Division

WILLIE ML, et al, Plaintiff(s),
vs. JAMES B. HUNT, JR., et al,
Defendant(s).

JUDGMENT IN A CIVIL CASE 3:79-CV-294-MU

DECISION BY COURT. This action having come before the Court and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that judgment is hereby entered in accordance with the Court's 1/22/98 Order.

January 22, 1998

FRANK G. JOHNS, CLERIC Deputy Clerk

FILED

UUNNIITTEEDD SSTTAATTEESS DDIISSTTRRIICCTT CCOOUURRTT

CCHHAARRLLOOTTTTE, N.C.

FOR THE WESTERN DISTRICT OF NORTH CAROLINA u u p n

CHARLOTTE DIVISION

3:79-CV-294-MU

, I O ,, U.S. DISTRICT COURT

W. DIST. OF N.C.

WILLIE M.,etaL,

)

Plaintiffs,

)

v.

)

ORDER

JAMES B. HUNT, JR., et al.,

)

Defendants.

)

This matter is before the Court upon Defendants' "Motion to Terminate Class Action Pursuant to Fed. R. Civ. P. 60(b)", filed February 14, 1997.

I. Factual and Procedural History. A. Introduction. This class action was originally filed on October 5, 1979, in an attempt to reduce the
institutionalization of violent and assaultive youths in North Carolina. Its history is long and complex and has been set out in detail many times. An accurate summary of the history of the case may be found at pages 1 through 7 of Defendants' memorandum in support of the motion to terminate ("Memorandum"), and the Court will not attempt to improve on that summary here.
Of relevance to the instant motion, the parties agreed in September of 1980 that the sources of the rights of the plaintiff class to appropriate treatment, education, and habilitation were as follows:

4. Plaintiffs have the right to appropriate treatment as provided by the Fourteenth Amendment to the United States Constitution.
5. Plaintiffs committed to the custody of the Division of Youth Services pursuant to Article 7A of the General Statutes of North Carolina have a right to appropriate treatment under N.C.G.S. § 134A-20.
6. Plaintiffs who are residents of a treatment facility as defined by N.C.G.S. § 122-36(g) [State mental health facilities] have a right to appropriate treatment under N.C.G.S. § 122-56.
7. Plaintiffs have a right to free appropriate public education in the least restrictive environment as provided for and defined in the Education for All Handicapped Children Act, 20 U.S.C. § 1411, et seq., and implementing regulations, 45 C.F.R. 121 A. 1, et seq.
8. Plaintiffs have a right to free appropriate public education in the least restrictive environment as provided for by and defined in N.C.G.S. § 115-363, et seq., and implementing regulations, 16 N.C.A.C. 2E.1500, et seq. . . .
Memorandum at 3 (quoting the parties' Second Set of Stipulations at ^ 4-8.
Furthermore, the parties also reached agreement in 1980 that the scope of Defendants'
obligation to the plaintiff class was as follows:
(A) Each plaintiff shall be provided habilitation, including medical treatment, education, training and care, suited to his needs, which affords him a reasonable chance to acquire and maintain those life skills that enable him to cope as effectively as his own capabilities permit with the demands of his own person and of his environment and to raise the level of his physical, mental and social efficiency. Such habilitation shall create a reasonable expectation of progress toward the goal of independent community living. Defendants do not guarantee each plaintiff a "cure," but do guarantee each plaintiff a program of habilitation which is a good faith effort to accomplish the goals set forth herein.
(B) Each plaintiff shall be provided with the least restrictive, i.e., most normal, living conditions appropriate for that person. Among the factors to be considered in determining the least restrictive
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living conditions appropriate for the individual are the need to minimize institulionalization and the need to minimize the possibility of harm to the individual and society.
(C) The goal of habilitation shall be to enable each plaintiff, as appropriate for that individual, to move from:
(1) Living and programming segregated from the community to living and programming integrated with the community;
(2) More structured living to less structured living;
(3) Group residences to individual residences; and
(4) Dependent living to independent living.
(D) Each plaintiff shall be provided such placements and services as are actually needed as determined by an individualized habilitation plan rather than such placements and services as are currently available. If placements and services actually needed are not available, the person shall be entitled to have them developed and implemented within a reasonable period. Prior to development and implementation of needed placements and services, the person shall be entitled to placement and services which meet as nearly as possible his actual needs.
Second Set of Stipulations at 1 9.
B. Defendants' Motion to Terminate.
On June 13, 1985, the Court administratively closed this case, noting that the case was
settled by a "Notice of Settlement" and Consent Decree filed December 7, 1981, and that the
Court had approved the settlement on February 24, 1982. Thereafter, the parties endeavored to
agree upon a compliance plan (the "Plan") to implement the consent decree.
In January of 1995, the parties submitted a joint letter to the Court "requesting resolution

of the only remaining provision of the compliance plan remaining in dispute—the provision relating to availability of costs and fees to attorneys who represent class members and potential class members in the advocacy process proposed as a part of the compliance plan." Plaintiffs' Letter of January 24, 1995. Both parties agreed that the attorneys' fees issue was the only obstacle to approving the Plan and proceeding with the remaining tasks of: "[R]eaching agreement as to standards for determining when compliance is reached and as to terms for ending direct court oversight upon the achievement of compliance." kL
As a result of these representations from the parties, the Court was of the understanding that resolution of the attorneys' fees issue would result in termination of the class action. Thus, by order of January 9, 1997, upon the Court's denial of Plaintiffs' motion to have the Court adopt their fee proposal, the Court ordered the following: "The parties are directed to submit for the Court's approval a final, updated copy of the compliance plan by February 14, 1997. Also by February 14, 1997, the parties are to file their proposals regarding termination of the Willie M. Review Panel and of the case itself." Order of January 9, 1997, at 6.
In response to the Court's order of January 9th, the parties provided the Court with a final copy of the Plan and also filed submissions regarding termination of the Willie M. case and of the Willie M. Review Panel. Plaintiffs' submission was styled as a proposal, while Defendants' submission was in the form of the instant motion to terminate the class action pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. After reviewing said submissions, as well as input from the Review Panel, the Court concluded, by order of February 24, 1997, that an evidentiary hearing would be necessary at which Defendants would bear the burden of demonstrating that they are sufficiently in compliance with their obligations under the consent decree to justify
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termination of the class action. This order also set out a briefing schedule regarding Defendants' motion.
Pursuant to the briefing schedule, Plaintiffs filed a response to Defendants' motion to terminate ("Plaintiffs' Response") on May 9, 1997, and Defendants filed a brief in response to Plaintiffs' proposals ("Defendants' Response"). On May 30, 1997, the parties each filed reply briefs ("Plaintiffs' Reply" and "Defendants' Reply"). After reviewing these documents, the Court determined that the scope of the evidentiary hearing would be whether Defendants can demonstrate that termination is warranted under either Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), or Board of Education of Oklahoma City Public Schools v. Powell. 498 U.S. 237 (1991). The Court conducted the evidentiary hearing on September 24-25, 1997.
II. Legal Arguments. A. Defendants' Memorandum in Support of the Motion to Terminate. 1. Introduction. After summarizing the history of the case, Defendants set out to describe the development
of the State's Willie M. Program, the current Willie M. Service Delivery System, and the extent to which they have complied in good faith with the stipulations in this action. See Memorandum at 7-20. Based upon such demonstrated compliance, Defendants argue that, "[p]ursuant to Fed. R. Civ. P. 60(b), equity now requires termination of this class action which has been administratively closed for almost twelve years." Memorandum at 20.
Defendants, citing Alexander v. Britt, 89 F.3d 194 (4th Cir. 1996), note that Rule 60(b) is the appropriate vehicle for ending institutional reform litigation and that the Rufo and Powell
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standards articulated by the Supreme Court are variations of a single theme by which such litigation may be terminated. Defendants invoke both standards and argue that under either one or both the Court should grant the motion to terminate this litigation.
2. Rufo Argument. Defendants state that in Rufo the Supreme Court "held that institutional reform decrees may be modified or terminated when it is established that there has been a 'significant change in factual conditions or in law.'" Memorandum at 21 (quoting Rufo. 502 U.S. at 384). Relying on this standard, Defendants contend that termination of the class action is appropriate here because the law has changed in at least four respects, all in Defendants' favor, since the time the parties agreed to the Second Set of Stipulations and because such changes warrant termination of the case. The changes in the law cited by Defendants are:
(1) The Eleventh Amendment precludes the Court from continued jurisdiction over the Plaintiffs' rights based on state law and those state law rights are the heart of the Plaintiffs' rights;
(2) The constitutional due process rights of the Plaintiffs to habilitation are limited (citing Youneberg v. Romeo. 457 U.S. 307 (19821):
(3) The due process right to habilitation identified in Youngberg extends only to class members involuntarily in the state's custody; and,
(4) The State is only liable when it is the moving force behind constitutional deprivations.

a. Eleventh Amendment.
Defendants note that three of Plaintiffs' five rights under paragraphs 4-8 of the Second
Set of Stipulations are founded entirely on state law and argue that "those rights, appropriate
treatment and appropriate education, lay at the heart of the lawsuit since its inception [but that,]
[s]ince those stipulations were made, the law has crystallized to make it plain that the Court is
barred by the 1 lth Amendment from enforcing those rights." Memorandum at 22-23.
Defendants argue that the case of Pennhurst State School & Hospital v. Halderman. 465 U.S. 89
(1984), represents this crystallization of the law. In Pennhurst. the Supreme Court held:
[Njeither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. A federal court must examine each claim in a case to see if the court's jurisdiction is barred by the Eleventh Amendment. We concluded above that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment. . . . We now hold that this principle applies as well to state-law claims brought into court under pendent jurisdiction.
465 U.S. at 121 (citations omitted). Defendants assert that Pennhurst's bar to pendent
jurisdiction over state law claims otherwise protected by the Eleventh Amendment also applies to
jurisdiction conferred by consent. Memorandum at 23 (citing Lelsz v. Kavanaugh. 807 F.2d
1243 (5th Cir. 1987)). Defendants contend that the state-law claims asserted by Plaintiffs here,
arguably the heart of Plaintiffs' case, are claims that state officials violated state law, just as were
the claims at issue in Pennhurst. and are therefore similarly protected by the Eleventh
Amendment. Thus, Defendants argue that the Court cannot exercise jurisdiction over such
claims.

b. Limited Constitutional Right to Habilitation. Defendants contend that the treatment obligations the State agreed to undertake, set out in paragraph 9 of the Second Set of Stipulations above, are no longer mandated by the Fourteenth Amendment. Defendants cite the case of Youngberg v. Romeo. 457 U.S. 307 (1982) for the proposition that a state is not constitutionally required to provide any particular substantive services to its citizens and need only provide those individuals involuntarily committed to the state's custody with minimally adequate training to ensure safety and freedom from undue restraint. Defendants also cite a Second Circuit opinion applying Youngberg to an institutional reform class action for the proposition that there is no due process right to a specific type of treatment or training beyond that geared toward safeguarding basic liberty interests. Memorandum at 25-26 (quoting Society of Good Will to Retarded Children v. Cuomo. 737 F.2d 1239, 1250 (2nd Cir. 1984), as follows: "Where the state does not provide treatment designed to improve a mentally retarded individual's condition, it deprives the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it is under no constitutional obligation to grant."). Defendants argue that Youngberg and its progeny represent a significant change in the law from that in force at the time the parties agreed to the obligations in paragraph 9 and that such change should bring about a modification of Defendants' requirements to the extent they are based on a constitutional right to habilitation.
c. Youngberg Habilitation Rights Extend Only to Those in Custody. Defendants cite the case of DeShaney v. Winnebago County Department of Social Services, et al.. 489 U.S. 189 (1989), in support of the argument that the due process right to

habilitation in Youngberg extends only to class members involuntarily in the State's custody (i.e., that children who are not in custody have ho due process liberty interest in appropriate habilitation). Memorandum at 26-27 (quoting DeShaney, 489 U.S. at 200, in pertinent part, as follows: "[I]t is the State's affirmative act of restraining the individual's freedom to act on his own behalf. . . which is the 'deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means."). Defendants contend that the vast majority of Willie M. class members are not involuntarily in the State's custody and, therefore, the DeShaney limitation is another significant change in the law from that in effect at the time Defendants agreed to the habilitation obligations in paragraph 9.
d. The State Was Not the Moving Force Behind Constitutional Deprivations.
Relying on Kentucky v. Graham. 473 U.S. 159 (1985), Defendants assert that a cause of action for constitutional deprivations by individuals acting in their official capacity on behalf of the State will only lie against the State if it was the moving force behind the deprivations by policy or custom. Defendants maintain that they entered into the stipulations to ensure that the rights of the class members were protected and not to remedy systemic constitutional deprivations. Thus, because there was and is no policy or custom of the State to deprive Willie M. class members of their constitutional rights, Defendants argue that the class cannot maintain a cause of action against the State for any such alleged deprivations.

e. Summary of Rufo Argument.
Defendants summarize as follows their argument that the Court, pursuant to Rufo. should
terminate the class action:
[S]ince 1981 the law has crystallized in four respects, all of which require that this class action now be dismissed. The heart of the plaintiffs' rights under the second set of stipulations arise from State law which this Court no longer has jurisdiction to enforce. The constitutional and federal statutory rights which are applicable to the class members, have been severely restricted by subsequent case law. The State does not by "policy or custom" violate these rights. Instead, the State has implemented a system of services, both habilitative and educational, that far exceed those constitutional minimums. The State is and has been for a substantial period of time in compliance with the Court's order in this action.
Memorandum at 28-29.
3. Powell Argument.
As an alternative basis for dismissal of this case, Defendants rely on the case of Board of
Education of Oklahoma City Public Schools v. Powell. 498 U.S. 237 (1991), as follows:
The Court in Powell found that ongoing institutional reform litigation may be modified or terminated when the State can show (1) it had "complied in good faith with the . . . decree", (2) its compliance has lasted for a reasonable period of time and (3) "the vestiges of past discrimination had been eliminated to the extent practicable." I<i at 248-250. . . . Pefendants have met all parts of this test and this action should be terminated.
Memorandum at 29 (also citing Alexander v. Britt. 89 F.3d 194, 198 (4th Cir. 1996)).
Pefendants then set out a detailed explanation of their good faith efforts to comply with
their obligation to provide class members with appropriate treatment and education, the duration
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of their compliance, and the extent to which their compliance has eliminated past discrimination. Specifically, Defendants note that the State has spent over half a billion dollars to develop and implement the Willie M. Program and argue that the program is a model one and has been so for many years. Defendants note that "[t]he General Assembly and the Department of Human Resources have codified into law and regulation the safeguards necessary to protect [the Willie M. class]" and contend that "[t]he State Office of Administrative Hearings and State Courts of Law are now the appropriate forum for protecting these rights." Memorandum at 33. Finally, Defendants maintain that the State is.not required to develop an optimal program but that it has done so anyway and that "[ijnjunctive relief in institutional reform litigation, whether entered by the consent of the parties or after a Court decision on the merits, is intended only to remedy a constitutional violation, not to displace local decision making and control forever." Memorandum at 31 (citing Powell. 498 U.S. at 248, and Missouri v. Jenkins. 115 S.Ct. 2038 (1995)).
B. Plaintiffs' Response. 1. Introduction.
Plaintiffs oppose termination of the class action because: [Defendants' obligation under the Consent Decree is to provide the required "appropriate services" to all class members; [and] in order to terminate the Consent Decree, defendants must show that they have provided the required appropriate services to all class members and will be able to sustain such delivery of services; and . . . defendants cannot make such a showing at this time.
Response at 1. Plaintiffs emphasize that Defendants agreed to provide all class members with
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appropriate services; therefore, a good faith effort at actual compliance is insufficient to justify termination under Powell, Furthermore, Plaintiffs assert that Defendants' Rufo argument ignores that the law permits litigants to agree to do more than the Constitution requires, and, in any event, termination under Rufo requires, at the time of the consent decree, a misunderstanding of the governing law that did not take place here.
2. Plaintiffs' Refutation of Rufo Argument. Plaintiffs argue that, in a consent decree, defendants may agree to do more than a judicially imposed injunction could have required and, as long as the decree still relates to an alleged violation of federal law, the parties should be held to their bargain. Response at 5 (citing Alexander v. Britt. 89 F.3d 194, 200 (4th Cir. 1996)). Plaintiffs rely on the Rufo case itself in support of their position that Defendants should be held to their agreement, quoting the Rufo Court as follows: "[T]o hold that a clarification in the law automatically opens the door for relitigation of every affected consent decree would undermine the finality of such agreements and could serve as a disincentive to negotiation of settlements in institutional reform litigation." Response at 6 (quoting Rufo. 502 U.S. at 389). Plaintiffs argue that a modification or termination of a consent decree under Rufo requires that the parties based their agreement on a misunderstanding of the governing law, a showing that Defendants cannot make here. Response at 6 (citing Rufo. 502 U.S. at 390). Furthermore, even if Defendants are able to seek a modification or termination under Rufo. Plaintiffs assert that Defendants are unable to meet the Rufo standard, defined by the Supreme Court as a three-pronged test: " (1) that there be a significant change in facts or law, (2)
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that warrants revision of the decree, and (3) that the proposed modification be suitably tailored to the changed circumstances." Memorandum at 6 (citing Rulo, 502 U.S. at 583). First, Plaintiffs take issue with Defendants' Eleventh Amendment argument and with the characterization of Plaintiffs' state law claims as the "heart" of Plaintiffs' rights. Plaintiffs contend that the two federal claims standing alone provide ample basis for the consent decree, and, even if that were not so, Defendants expressly stipulated to the Court's jurisdiction over the state law claims, constituting a waiver of Eleventh Amendment immunity. Response at 6-7 (stating that the Supreme Court in Pennhurst recognized the long-established rule that a state can waive Eleventh Amendment immunity).
Second, Plaintiffs claim that Defendants' education law obligations pursuant to federal statute have not changed. Though the Education for All Handicapped Children's Act changed its name to The Individuals with Disabilities Education Act ("IDEA") in 1990, Plaintiffs argue that their entitlements under the statute are at least as strong as they were in 1980. Plaintiffs maintain that IDEA requires an individualized education program, including therapy and special equipment or transportation, as well as a transitional component regarding post-school outcomes. Plaintiffs assert that 89% of Willie M. class members are eligible for special education pursuant to the IDEA and that there has been no change in Defendants' obligations to provide such education to warrant termination under Rufo.
Third, Plaintiffs argue that the Willie M. entitlements in paragraph 9 are consistent with current federal constitutional law on the right to treatment and habilitation, citing Youngberg and two 4th Circuit cases, and, because the entitlements are "related" to an alleged violation of federal law within the meaning of Alexander v. Britt. supra, they can go beyond constitutional
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requirements and still be the basis for a proper agreement in a consent decree. Plaintiffs disamee that DeShanev has any effect on the right of the Willie M. class to habitation, arguing that the class definition includes those who are or will be "in custody" and that many current class members are "in custody" within the meaning of DeShaney.
Fourth, Plaintiffs maintain that the alleged changes in the law relied on by Defendants are Supreme Court cases decided between 1982 and 1989. Because Defendants did not assert until 1997 that any post-settlement changes in the law altered their obligations in any way, Plaintiffs argue that such a delay should bar Defendants' Rufo argument under equitable principles such as laches and estoppel and under the terms of Rule 60(b) itself, which requires motions to be made "within a reasonable time." Finally, Plaintiffs contend that Defendants' attempt to terminate a settlement, rather than seek a modification, is a remedy not justified under Rufo where the alleged changes in the law relate to one of the several underpinnings for relief.
3. Plaintiffs' Refutation of Powell Argument. Plaintiffs contend that Defendants are not entitled to termination under Powell because they cannot satisfy the first prong of the Powell test, that they are in actual compliance with the bargain they struck with Plaintiffs. Plaintiffs note that the funds expended and system of service delivery established by Pefendants are worthy and necessary efforts but do not establish compliance in that the goals of the consent decree have not been achieved and sustained over time. Plaintiffs cite numerous cases for the proposition that a district court should retain jurisdiction over a consent decree until the defendants demonstrate actual and sustained compliance.
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Plaintiffs, noting that "good faith" is not a substitute for actual compliance, go on to delineate statistics allegedly proving that Defendants are not in compliance with their obligations. Response at 13-14 (citing Alexander. 89 F.3d at 202). Plaintiffs contend that Defendants are behind schedule with respect to the provision of certain agreed-upon monitoring and evaluation functions. Regarding the monitoring and evaluation that has taken place, Plaintiffs argue that various "appropriateness reviews" indicate that, depending upon the source of review, only between 32% and 82% of class members are receiving appropriate services.
To demonstrate compliance, Plaintiffs assert that Defendants and independent reviewers must complete agreed-upon monitoring and evaluation, arguing that, "[b]efore the court is in a position to rule on whether defendants have complied with the Consent Decree, defendants should complete enough of the agreed monitoring and evaluation to provide comprehensive, validated information." Response at 22. Furthermore, Plaintiffs contend that Defendants' validated appropriateness reviews should show that "substantially all" of the Willie M. Class is in fact receiving appropriate services for a reasonable period of time. In an earlier submission to the Court, Plaintiffs indicated that provision of appropriate services to 85% of the class is "a realistic and attainable minimum." Plaintiffs' Proposals Regarding the Review Panel and Termination of Case, filed February 14, 1997, at 9 (concurring with the proposal of the Willie M. Review Panel in a letter to the Court dated January 2, 1997). Plaintiffs further indicate that a reasonable period of sustained compliance with the 85% standard would be three years. Id. at 10 (also concurring with a Review Panel proposal).
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C. Defendants' Response. Defendants respond to Plaintiffs' Proposals Regarding the Review Panel and Termination of the Case by arguing that the 85% standard for compliance is not the standard for compliance intended by the parties and is neither a workable nor reasonable standard. Defendants contend that the Supreme Court has rejected such quantitative benchmarks for provision of services in institutional reform litigation. Defendants' Response at 2-3 (citing Missouri v. Jenkins. 115 S.Ct. 2038 (1995)). Instead, Defendants assert that the Supreme Court advocates examination of the following three factors in determining whether a court should withdraw supervision over a consent decree:
(1) whether there has been compliance with the decree in those aspects of the system where federal supervision is to be withdrawn; (2) whether retention of judicial control is necessary or practicable to achieve compliance in other facets of the system and (3) whether the defendant has demonstrated its good-faith commitment to the whole of the decree and to those federal statutes and constitutional provisions that were the predicate for the intervention in the first place.
Defendants' Response at 3 (citing Freeman v. Pitts. 503 U.S. 467 (1992)). Defendants argue that they have surpassed the Freeman measure of compliance.
Defendants also argue that the appropriateness review success standard proposed by Plaintiffs should be rejected because it is neither workable nor reasonable for determining compliance with the consent order. Defendants point out that the "yes" or "no" format of the reviews provides only a snapshot evaluation at one moment in time and also leads to incomplete and misleading answers. Defendants provide data of widely varying reviews of the same class members by different reviewers as evidence of their point.
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Finally, Defendants contend that the Willie M. Review Panel has fulfilled its duties and that the Panel should now be dissolved. Defendants argue that the Panel's efforts have become duplicative of the State's functions and are now superfluous.
D. Plaintiffs' Reply. Plaintiffs argue that Defendants mischaracterized Plaintiffs' position regarding the 85% standard. Plaintiffs state that Defendants continue to ignore their obligation to provide "all" class members with appropriate services and that Plaintiffs do not contend that this case should be dismissed simply if Defendants attain 85% on appropriateness reviews. Instead, Plaintiffs state that: "Plaintiffs' position is that this case should be terminated only when defendants demonstrate that appropriate services are being provided to 'all' or 'substantially all' class members, when this showing has been independently validated, and when compliance has been sustained for a reasonable period." Plaintiffs' Reply at 1-2. Plaintiffs further argue that Defendants' reliance on Missouri v. Jenkins is misplaced in that the Jenkins Court did not reject quantitative measures but rather the relevance of standardized test results as a measure of compliance in that case. Plaintiffs also state that Defendants rely on an inquiry "whether the vestiges of past discrimination have been eliminated to the extent practicable" that is only relevant to desegregation cases and not here. As to Defendants' complaints about the appropriateness reviews themselves, Plaintiffs state that such "arguments lack support and are inconsistent with the terms of the Consent Decree and the parties' negotiated agreement." Plaintiffs' Reply at 3. Plaintiffs assert that the reviews are indeed workable and reasonable, even in the opinion of Defendants' expert Richard Swanson,
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and that Defendants either designed the reviews or agreed to them after negotiation and have not proposed an alternative for fear of protracted future negotiation. Plaintiffs argue that "Defendants' doubts as to the efficacy of [the reviews] may disappear if the review process is administered with the frequency and consistency agreed in the 1995 Plan." Plaintiffs' Reply at 12.
E. Defendants' Reply. 1. Introduction.
Defendants argue, in their reply to Plaintiffs' Response, that Plaintiffs misinterpreted Defendants' argument under Rufo and also misinterpreted the compliance requirements of Powell.
2. Rufo Argument.. Defendants clarify their argument under Rufo as follows:
Contrary to plaintiffs' arguments, the defendants do not invoke Rufo for the purpose of obtaining modification of the decree to relieve them of any obligations. Rather, defendants rely on Rufo for the principle that their compliance with the consent order should be measured under the law as it now is and not under the law as it was. Significant changes in the case law, subsequent to the entry of the stipulations, have clarified that the defendants are in compliance with all federal statutory and constitutional requirements and that this Court no longer has jurisdiction over the State law claims constituting the heart of plaintiffs' action.
Reply at 1. Defendants maintain that Pennhurst holds that the Eleventh Amendment forecloses
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federal jurisdiction over state law claims, that the parties' stipulation to jurisdiction is void because parties cannot consent to jurisdiction if none exists, and that they could not have waived their Eleventh Amendment immunity if they did not know such defense was available at the time of the agreement. Defendants argue that termination is proper because Plaintiffs have failed to allege any continuing systemic or programmatic violations by Defendants of either Youngberg or the IDEA, conceded by Plaintiffs as the only federal rights implicated in this action, and because the Court is foreclosed by Pennhurst from enforcing the remaining State law claims.
Defendants next contend that they have provided appropriate services to Willie M. class members pursuant to the IDEA and have done so for many years. Defendants state that "[i]t is unrefuted that of the thousands of class members defendants have educated only two have ever invoked the State's elaborate IDEA administrative complaint process and that both of those complaints were quickly resolved to the satisfaction of the class members' parents or guardians.'" Reply at 3. Defendants maintain that Plaintiffs' evidence that a number of class members are not receiving appropriate services does not equate to a violation of any material requirement of the IDEA. Defendants conclude that they agreed to comply with the IDEA but not with the opinions and expectations of Plaintiffs or the Review Panel.
Defendants then reiterate their contention that Youngberg' and Pennhurst were significant changes in the law and that, as a result, several other circuits have modified consent decrees and injunctions in institutional reform cases. See, e.g.. P.C. v. McLaughlin. 913 F.2d 1033 (2nd Cir.
'Defendants also reiterate their argument that DeShaney holds that, unless the State takes a person into custody, there is no corresponding constitutional duty to provide for the individual's safety, well-being, and habilitation.
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1990); Lelsz v. Cavanauph. 807 F.2d 1243 (5th Cir. 1987); Society for Good Will to Retarded Children v. Cuomo. 737 F.2d 1 239 (2nd Cir. 1984); New York State Association of Retarded Children v. Carev. 706 F.2d 956 (2nd Cir. 1983), cert, denied. 464 U.S. 915 (1983). Defendants argue that termination is similarly appropriate in the instant case.
Finally, Defendants contend that Plaintiffs' laches and estoppel argument is inconsistent with Rufo and Powell. Defendants maintain that Plaintiffs' arguments under these equitable principles and under Rule 60(b)'s reasonableness requirement are unavailable to Plaintiffs because they have not shown that they have been prejudiced by the delay.
3. Powell Argument. Defendants maintain that Plaintiffs mistakenly equated actual compliance with full compliance and that the cases cited by Plaintiffs do not support their argument that full compliance is required. Instead, Defendants argue, relevant case law indicates that such factors as good faith and the underlying goals of the consent decree should guide the Court in determining whether continued supervision is necessary. Defendants contend that, "[i]n determining compliance, and ultimately, termination, 'a proper rule must be based on the necessity to find a feasible remedy that insures system-wide compliance with the court decree and that is directed to curing the effects of the specific violation.'" Defendants' Reply at 8 (quoting Freeman v. Pitts. 503 U.S. 467, 497 (1992)). To that end, Defendants argue that they have "gone beyond federal constitutional and statutory requirements and have created a state of the art program to deliver appropriate services to class members." Defendants' Reply at 9. Defendants assert that "termination of the Court's oversight
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is not likely to result in the defendants abandoning a program which is the model for the nation" and then go on to describe the "model" prograrh, emphasizing the thoroughness of the monitoring system, kL
Finally, Defendants argue that they have achieved sustained compliance. Defendants state that "Powell merely requires compliance for a reasonable period of time, but in any event, for no longer period than is necessary to remedy the effects of past intentional discrimination." Id. at 12. Defendants maintain that they have met that standard, remedying the effects of past constitutional and statutory violations with continual progress since 1984.
F. Evidentiary Hearing. 1. Defendants' Additional Argument.
Defendants assert that the court should determine whether it remains equitable for the judgment at issue to apply prospectively and, if not, to relieve the parties of some or all of the burdens of that judgment on such terms as are just. Defendants further contend that if Defendants can show they have complied in good faith with the decree for a reasonable period of time to the point that the conditions that offended the Constitution have been eliminated to the extent practicable, then termination of the decree is appropriate. Defendants note that nothing indicates when this action is to come to a close. Defendants state that the 1995 plan that the Court requested that the parties draft does not indicate what is to happen once the plan is implemented or how to determine whether it should be terminated.
Defendants contend that the underlying goals of the consent decree have been accomplished. Defendants assert that they presented evidence showing that the state has
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developed and implemented a comprehensive system to address the needs of this very difficult class. There is now available an extensive array of services that is coordinated under a case management system.
Defendants maintain that the state has shown compliance as well as good faith. 1 he state demonstrates good faith through its financial commitment as well as the personnel it has assembled to implement the Willie M. program. The fact that only 30 of 1507 class members remain institutionalized also shows both good faith and compliance, according to Defendants. Furthermore, because state and federal statutes and rules now protect Plaintiffs rights, there is limited efficacy to be gained from continuing the consent decree's enforcement.
Defendants contend that the fact that the state has not produced a certain percentage of appropriateness reviews does not indicate that further monitoring under the consent decree is necessary. Defendants assert that the reviews were never intended to measure compliance with the consent decree or the 1995 plan to the court.
2. Plaintiffs' Additional Argument. Focusing on Alexander v. Britt. 89 F.3d 194 (4th Cir. 1996), Plaintiffs urge that the motion to dismiss not be granted because Defendants cannot show that they have complied with core provisions of the parties' agreement and that Defendants cannot show that they have sustained their compliance for some period of time. Plaintiffs note that both the state and the review panel testified that delivery of services to substantially all of the class members at any one time is a realistic goal. The parties developed an instrument for monitoring delivery of appropriate services, and, Plaintiffs noted, had reached agreement about what data the court
22

needed to see in order to make a decision under Alexander as to whether Defendants had complied with their obligation. Plaintiffs assert that if Defendants had complied with the plan developed by the parties, there would exist two state monitorings of the entire class and independent reviews of those state monitorings. Plaintiffs assert that without this data, the court cannot make the finding under Alexander necessary to dismiss this case. Plaintiffs also state that the availability of other state and federal statutory remedies should class members not feel that they are receiving adequate services do not relieve Defendants of the burden of complying with the decree entered in this case.
III. Applicable Law. A. Motions Pursuant to Rule 60(b) and the Rufo and Powell Standards. 1. Introduction. Rule 50(b) of the Federal Rules of Civil Procedure states, in relevant part, that: On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time . . . .
In Rufo and Powell, supra, the Supreme Court articulated two different standards by which a party may, pursuant to Rule 60(b), seek termination or modification of a judgment that has prospective effect.
23

2. The Rufo Standard.
In Rufo. the Court stated that a party seeking modification of a consent decree pursuant to
Rule 60(b) "must establish that a significant change in facts or law warrants revision of the
decree and that the proposed modification is suitably tailored to the changed circumstance."
Rufo. 502 U.S. at 393. This is the Rufo standard. The Court also held:
A consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law. But modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent.
Id at 388.
However, the Rufo Court noted the following caveat: "To hold that a clarification in the
law automatically opens the door for relitigation of the merits of every affected consent decree
would undermine the finality of such agreements and could serve as a disincentive to negotiation
of settlements in institutional reform litigation." UL at 389. Instead, "a consent decree is a final
judgment that may be reopened only to the extent that equity requires." Id. at 391.
Despite these limitations, the Rufo Court determined that:
Within these constraints, the public interest and "[considerations based on the allocation of powers within our federal system" . . . require that the district court defer to local government administrators, who have the "primary responsibility for elucidating, assessing, and solving" the problems of institutional reform, to resolve the intricacies of implementing a decree modification.
Id at 391 (quoting Powell. 498 U.S. at 248; Brown v. Board of Education. 349 U.S. 294, 299
(1955)) (citations omitted).
24

3. The Powell Standard.
The Powell standard may be stated as follows:
In the context of deciding whether to "modify or dissolve a desegregation decree," the Supreme Court directed that Rule 60(b) relief should be granted if the local authority could establish that (1) it had "complied in good faith with the . . . decree" (2) its compliance had lasted for a "reasonable period of time" and (3) "the vestiges of past discrimination had been eliminated to the extent practicable."
Alexander v. Britt. 89 F.3d 194, 198 (4th Cir. 1996) (quoting Powell. 498 U.S. at 249-50).
In a later case, the Supreme Court later set out some of the factors a court should consider
in determining whether a party has met the Powell standard, holding:
Among the factors which must inform the sound discretion of the court in [a Powell analysis] are the following: whether there has been compliance with the decree in those aspects of the system where [federal] supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance in other facets of the . . . system; and whether the [defendant] has demonstrated . . . its good-faith commitment to the whole of the . . . decree and to those provisions of [federal] law and the Constitution that were the predicate for judicial intervention in the first instance.
Freeman v. Pitts. 503 U.S. 467, 491 (1992). In 1995, the Supreme Court, in another school
desegregation case, referred to Powell and Freeman and concluded that this three-part test from
Freeman is the proper test for a district court to apply in deciding whether a defendant has
complied with its obligations under a consent decree. Missouri v. Jenkins. 515 U.S. 70, 101
(1995).
4. Fourth Circuit Interpretation of Powell and Rufo.
25

The Court of Appeals for the Fourth Circuit, in Alexander v. Britt, reconciled the
differences between the Powell and Rufo standards and, in the process, provided guidance for
district courts considering motions under Rule 60(b). The Alexander court stated:
The standards employed in Powell and Rufo are but variations on a single theme. Both are grounded in the established general equity powers of the federal courts. Those powers, now formalized in Rule 60(b), which provided the basis for the motions made in Powell. Rufo, and the case at hand, permit courts to grant parties relief from final judgments that have prospective effect. . . . Accordingly, when confronted with any motion invoking this rule, a district court's task is to determine whether it remains equitable for the judgment at issue to apply prospectively and, if not, to relieve the parties of some or all of the burdens of that judgment on "such terms as are just."
89 F.3d 194, 197 (4th Cir. 1996).
The Alexander court determined that, although Powell and Rufo set out different
standards, the Supreme Court's approach was the same in both cases: "In both, the Court
analyzed a number of factors to determine whether the movants were entitled to Rule 60(b)
relief. In both, the Court focused not on the remedy requested [termination versus modification]
but on the changed equities of the situation and the nature of the injunctions involved." i d at
198. Thus, the Alexander court concluded that a moving party may invoke either standard
pursuant to Rule 60(b) regardless of whether the remedy sought is modification or termination,
stating:
Indeed, Powell itself makes clear that a party can invoke the standard it sets forth to terminate or modify a decree. . . . Similarly, if a party can demonstrate a significant, unforeseen change in the facts or law, it may invoke Rufo to move for modification and even, if the unforeseen change in circumstances is particularly dramatic, termination.
26

i d at 199. With respect to the meeting of either sta'ndard, the Alexander court noted that it may be
more difficult to modify or terminate a consent decree, in which the parties forego litigation and compromise their respective positions, than to modify or terminate a court imposed-injunction. The court stated:
In the latter [i.e., court-imposed injunction], defendants can only be required to address ongoing illegal activity or the past effects of illegal activity-i.e., violations of substantive federal law. But, in a consent decree, defendants may agree, within limits, to do more than a judicially imposed injunction could have required. . . . The consent decree must, of course, still relate to an alleged violation of federal law, . . . but, if it does, the parties should be held to their bargain.
I d at 199-200 (citing Rufo. 502 U.S. at 389: Plvler v. Evatt. 924 F.2d 1321, 1327 (4th Cir. 1991)).
However, the 4th Circuit did not definitively resolve the question of whether the Powell standard can be invoked when a party seeks to terminate or modify a consent decree when the decree's purpose is to ensure ongoing and future compliance with federal law and not to remedy the effects of past illegal activity. The Alexander court noted that the Powell standard may be inapplicable to consent decrees in which the parties agree to cease ongoing illegal activity because it is difficult to establish that the decree has fulfilled that purpose; instead, the Rufo standard may be more relevant in such cases. Id at 200. The court did not answer the question one way or the other because it found that the defendant administrators did not and could not satisfy the Powell standard even if it did apply to the case at issue, a case involving an agreement to cease ongoing illegal activity (i.e., school segregation). Id.
27

B. Limitations on Constitutional Right'to Habilitation. In Youngberg v. Romeo, supra, the Supreme Court, in 1982, considered the issue of whether an individual involuntarily committed to a state institution for the mentally retarded has a substantive right to training or "habilitation"2 under the Due Process Clause of the Fourteenth Amendment. Noting that "[a]s a general matter, a State is under no constitutional duty to provide substantive services for those within its border," the Youngberg Court nevertheless recognized that a State does owe a duty to provide certain services and care when a person is institutionalized. 457 U.S. at 317. The Supreme Court then "concludefd] that respondent's liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint." Id at 319. The Youngberg Court also held that "[i]n determining what is 'reasonable'—in this and in any case presenting a claim for training by a State—we emphasize that courts must show deference to the judgment exercised by a qualified professional," thereby limiting interference by the federal judiciary with the internal operations of state institutions. Id. at 322. In DeShaney. supra, the Supreme Court expounded upon the limited constitutional right to training it identified in Youngberg. The DeShaney Court stated that "our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." 489 U.S. 189, 196 (citing, e.g.,
2The Supreme Court stated that the term "habilitation," when used in the context of psychiatry, refers to training and development of needed skills. 457 U.S. at 317.
28

Youngberg. 457 U.S. at 317). The Court recognized that:
[l]n certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals . . . [, noting the Youngberg] holding that the substantive component of the Fourteenth Amendment's Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their "reasonable safety" from themselves and others.
489 U.S. at 198.
However, the DeShaney Court, in determining that the constitutional rights identified in
Youngberg did not apply to the DeShaney petitioners because the petitioners were not in the
custody of the State, concluded that Youngberg and its progeny "stand only for the proposition
that when the State takes a person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility for his safety
and general well-being." IcL at 199-200. In support of this conclusion, the Supreme Court
reasoned:
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, not its failure to act to protect his liberty interests against harms inflicted by other means.
Id. at 200. Thus, DeShaney makes clear that an individual has no substantive due process rights
to receive services from the State unless the State has taken affirmative steps to restrain the
personal liberty of the individual.
C. Requirements Under the IDEA.
29

Plaintiffs summarized the relevant portions of the Individuals with Disabilities Education
Act, 20 U.S.C. § 141 1. el seq., as follows:
IDEA . . . requires an individualized education program based on his individual needs and drafted by a team of professionals. 20 U.S.C. §§ 1401(a)(20), 1414(a)(5). . . . IDEA also requires related services which are necessary to facilitate learning. These can include physical or occupational therapy, special equipment or transportation, or whatever is required by the individual needs of the student. 20 U.S.C. § 1401(a)(17); 34 C.F.R. § 300.13. IDEA also requires a transitional component, beginning no later than age 16, regarding post-school outcomes such as employment, postsecondary education, adult services, independent living, and community participation. 20 U.S.C. § 1401(a)(19).
Plaintiffs' Response at 7.
D. Pennhurst and Eleventh Amendment Immunity.
In Pennhurst. supra, the Supreme Court reviewed the law regarding a State's immunity
from suit in federal court pursuant to the Eleventh Amendment. The Court stated that "[i]t is
clear . . . that in the absence of consent a suit [in federal court] in which the State or one of it's
agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. . .
[and that] [t]his jurisdictional bar applies regardless of the nature of the relief sought." 465 U.S.
89, 100 (citations omitted). The Pennhurst Court further noted that this bar also applies to suits
brought only against state officials. L± at 101 (stating that "the general rule is that relief sought
nominally against an officer is in fact against the sovereign if the decree would operate against
the latter") (citation omitted). However, the Court recognized exceptions to the jurisdictional bar
for suits challenging the constitutionality of a state official's action (citing Ex parte Young. 209
U.S. 123 (1908)) and for suits against state officials for violation of federal law which resulted in
30

injunctive relief governing the officials' future conduct (citing Edelman v, Jordan. 415 U.S. 65 1

(1974)). 465 U.S. at 102-03.

"

With these principles in mind, the Court turned to the question of whether a claim that a

state official violated state law is one against the State and therefore barred by the Eleventh Amendment.3 The Pennhurst Court concluded that Young and Edelman are inapplicable in a suit

against state officials on the basis of state law, noting that:

A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts with the principles of federalism that underlie the Eleventh Amendment.

Id at 106.

Furthermore, the Supreme Court concluded that, even if a state law claim would

otherwise properly be before a federal court on the basis of pendent (now, supplemental)

jurisdiction or some other basis ofjurisdiction, such jurisdictional grounds are trumped by the

Eleventh Amendment. The Court held:

[Njeither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.... A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment. We concluded above that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is

3The Court did not decide whether a district court would have jurisdiction to grant prospective relief on the basis of federal law but did note that "the scope of any such relief would be constrained by principles of comity and federalism." 465 U.S. at 104 n. 13 (further noting that federal courts must be constantly mindful of "the delicate adjustment to be preserved between federal equitable power and State administration of its own law") (citation omitted).
31

protected by the Eleventh Amendment. . . . We now hold that this principle applies as well to state-law claims brought into federal court under pendent jurisdiction. Id. at 121 (citations omitted).
IV. Analysis. A. Introduction. As stated above, the Court's review of the many briefs submitted by the parties leads the
Court to conclude that the focus of its analysis is whether termination of the class action is warranted under Rufo v. Inmates of Suffolk County Jail. 502 U.S. 367 (1992), or Board of Education of Oklahoma City Public Schools v. Powell. 498 U.S. 237 (1991). After another review of the briefs and of the arguments raised at the evidentiary hearing, the Court finds that termination of the case is appropriate for the following reasons:
(1) The limitation on the constitutional right to habilitation, set out in Youngberg and DeShaney. represents a significant change in the law such that modification of the consent decree is justified under Rufo to the extent that the decree was based on a constitutional right to habilitation;
(2) Pursuant to the Powell standard, Pefendants have demonstrated sustained compliance with their obligations to Plaintiffs under the IPEA such that court supervision over IPEA requirements is no longer warranted; and,
(3) Because the Court no longer exercises jurisdiction over Plaintiffs' claims under federal constitutional and statutory law, the Court, pursuant to Pennhurst and the Eleventh Amendment, may no longer exercise jurisdiction over Plaintiffs' remaining state law claims.
32

B. Constitutional Right to Habilitation. One of the five predicates for the consent decree in this case was the parties' agreement that "plaintiffs have the right to appropriate treatment as provided by the Fourteenth Amendment to the United States Constitution." Second Set of Stipulations at ]\ 4. Based in large part on this assumption that the plaintiff class had a constitutional right to appropriate treatment, the parties agreed that Defendant would provide each plaintiff with an "'individualized habilitation plan" which would include the least restrictive living conditions appropriate for that person, as well as:
[MJedical treatment, education, training and care, suited to his needs, which affords him a reasonable chance to acquire and maintain those life skills that enable him to cope as effectively as his own capabilities permit with the demands of his own person and of his environment and to raise the level of his physical, mental and social efficiency.
IsL at U 9. However, as Youngberg and DeShaney make clear, the Willie M. Plaintiffs do not have a
constitutional right to any of these services. Instead, it is only those members of the plaintiff class who are involuntarily in the custody of the State who have any constitutional right to governmental aid at all, and, even then only possess the right to "minimally adequate or reasonable training to ensure safety and freedom from undue restraint." Youngberg. 457 U.S. at 319.
The Court finds that this limitation on the constitutional right to habilitation represents, within the meaning of Rufo. a significant, unforeseen change in the law from the law in effect at the time of the parties' agreement. Regardless of whether Willie M. class members are in the custody of the State, the rights available to them under the Constitution are very different than
33

the rights contemplated by the parties at the time they agreed to the Second Set of Stipulations. It is true that the 4th Circuit in Alexander stated that defendants may agree to do more
than the Constitution requires, if the agreement still relates to an alleged violation of the Constitution, and that the Rufo Court cautioned district courts from modifying consent decrees whenever there is a clarification in the law. However, that a party may agree to do more than is required by law does not mean that a district court must maintain jurisdiction over that agreement if the court finds circumstances have changed such that it is no longer just to do so. Such is the case here. Furthermore, the change in the law represented by Youngberg and DeShaney is more than a mere clarification in the law; it fundamentally altered the primary basis for federal jurisdiction over this case.
Therefore, the principles of equity and federalism cited by the Rufo Court as the most important considerations in this type of Rule 60(b) motion guide this Court to the conclusion that it should no longer exercise jurisdiction over the consent decree to the extent the decree is based upon the Plaintiffs' constitutional rights. Since the parties entered into the consent decree, the Supreme Court has limited the constitutional right to habilitation to the degree that it is no longer equitable for this Court to enforce obligations based upon such a right. Additionally, Defendants have instituted a comprehensive system of services for the Willie M. class that is codified in state law and regulation, and it is not the place of this Court to tell the State how to administer its own laws when there is no longer an overriding constitutional predicate for those laws. See Rufo. 502 U.S. at 391 (requiring that a district court defer to local government administrators with respect to solving problems of institutional reform because of the public interest and considerations of the allocation of powers within our federal system).
34

Thus, pursuant to Rufo and its progeny, the Court hereby modifies the consent decree at issue in this case such that there is no longer a basis for federal jurisdiction pursuant to the Fourteenth Amendment to the United States Constitution. See, e.g.. Alexander. 89 F.3d at 197 (stating that a district court's task in analyzing these kinds of Rule 60(b) motions "is to determine whether it remains equitable for the judgment at issue to apply prospectively and, if not, to relieve the parties of some or all of the burdens of that judgment on 'such terms as are just'") (citation omitted).
C. Rights Under Federal Statutory Law. The second and last federal law predicate for the consent decree was the Plaintiffs' "right to free appropriate education in the least restrictive environment as provided for and defined in the Education for All Handicapped Children Act [now IDEA] . . . ." Second Set of Stipulations at U 7. • Plaintiffs argue that: there has been no substantive change in Defendants' obligations under the statute since the time of the agreement; 89% of the class is eligible for special education under the statute; the IDEA requires an individualized education program for eligible members; and, Defendants have not demonstrated full compliance with their obligations under the statute. Plaintiffs also contend that the full remedy of the consent decree is adequately grounded in these federal education statutes. In seeking termination of the class action, Defendants argue that they have been in compliance with their requirements under the IDEA for many years, stating: "It is unrefuted that of the thousands of class members defendants have educated only two have ever invoked the State's elaborate IDEA administrative complaint process and that both of those complaints were quickly resolved to the satisfaction of the class
35

members' parents or guardians." Reply at 3. Though Defendants state the issue in terms of termination of the case, the Court finds that
the proper issue is whether Defendants are sufficiently in compliance with the IDEA to meet the Powell standard and justify modification of the consent decree. Therefore, what is at stake is Defendants' measure of compliance with the federal statute, IDEA, not their measure of compliance with the consent decree as represented by percentages of class members appropriately served pursuant to "appropriate reviews" or some other standard. That being said, it is clear to the Court that Defendants have met the Powell standard with respect to their obligations under the IDEA.4
Powell permits modification of a consent decree if a defendant can establish good faith compliance with a decree for a reasonable period of time such that the vestiges of past discrimination have been eliminated to the extent practicable. The Supreme Court in Freeman identified several factors that bear upon a district court's Powell analysis, including: whether there has been compliance with the decree in those aspects of the system where federal court supervision is to be withdrawn and whether the defendant has demonstrated a good-faith commitment to the whole of the decree and to those provisions of federal law that were the predicate for judicial intervention. 503 U.S. at 491.
Here, Pefendants have presented unchallenged evidence of their long-term compliance
4The Court notes the 4th Circuit's reluctance in Alexander to apply the Powell standard in cases such as this one where the purpose of the decree at issue is to ensure compliance with federal law and not to remedy the effects of past illegal activity. However, the Alexander court did not definitively resolve the question, and this Court finds that principles of equity and federalism are sufficiently in favor of Pefendants' position in this case to overcome any doubt in the wisdom of applying the Powell standard here.
36

with that aspect of the Willie M. system from which withdrawal of federal supervision is contemplated: the IDEA. Pursuant to the IDEA, Defendants have implemented the Individualized Education Program for Children with Disabilities, which includes related services, a transition component, and effectiveness monitoring. The State's participation in the IDEA is codified at N.C.G.S. § 115C-106 et seq., first enacted in 1973, and has been implemented through regulations codified at N.C.A.C. tit. 16, r. 2C.1500 et seq., first effective in 1978.
To the extent that jurisdiction over the consent decree is predicated on the IDEA, it is appropriate to modify the decree. Maintaining federal jurisdiction would be either duplicative or destructive to Congressional intent as expressed in the IDEA. Under that statute, a plaintiff must seek state administrative review before he or she brings a claim to federal court. Plaintiffs at bar do not contest that only two class members have ever challenged their educational services or that both cases were settled prior to hearing. An individual's membership in the Willie M. class should not enable that person to circumvent the provisions of IDEA and seek a federal remedy before proceeding through appropriate, adequate state channels.
Furthermore, Defendants have complied with the instant decree to the extent practicable. Although Plaintiffs focus on the fact that Defendants have not produced two full sets of appropriateness reviews to support their contention that Defendants have not shown actual compliance, these reviews are not the only way to prove compliance with the consent decree. The state has in other ways shown compliance to the extent feasible. The state has devoted ample resources to this program. The state has installed a team of dedicated professionals who have developed a program for dealing with Willie M. children that are emulated by other states. These professionals coordinate and oversee a statewide effort under which the services provided
37

to class members are updated not only when formal reviews are performed but when the state's professionals discover through informal channels that adjustments are necessary. Because this is a population whose needs can change unforeseeably and rapidly, accumulating static evaluations that indicate that every class member is receiving appropriate treatment at every time is not a realistic goal. Rather, it requires that the Willie M. program divert resources to excessive record keeping for the sake of record keeping when there is constantly work to be done on the front lines of servicing this population.
Indeed, through the testimony of Dr. Eric Vance, a practicing psychiatrist and the chief clinical consultant for the Willie M. program, the state has indicated that it even now continues to take steps to innovate and is on the cutting edge of treating class members. Dr. Vance explained that Willie M. class members have an average of 15 out of 30 known psychosocial risk factors that have been identified for high risk children. These risk factors range from a history of abuse to poverty to having an emotional disorder. The presence of four or five risk factors in a child is known to be a significant cutoff for poor psychosocial outcomes in life, such as developing substance abuse problems or serving time in prison.
After a review of a large range of literature on violent children and high-risk children in general, the Willie M. team has during the last several years begun to identify protective factors in these children. Protective factors are characteristics of individuals who have survived high risk situations. The Willie M. staff has begun to attempt to surround high- risk children with protective factors. Dr. Vance testified that identifying both risk and protective factors not only predicts how a child might function over the long term but also provides a basis for developing a treatment plan.
38

Thus, it is clear that Defendants, in good faith, have demonstrated a long-standing commitment to, and compliance with, the requirements of the IDEA, the only provision of federal statutory law that was a predicate for judicial intervention in this case, as well as the decree. Plaintiffs" evidence of Defendants' insufficient compliance with the decree is largely irrelevant and refers mostly to standards of appropriateness and to monitoring requirements that are not part of the IDEA and that are simply not practicable. The evidence and testimony at the evidentiary hearing establish that, over a period of time, all class members are provided with appropriate Willie M. services. Plaintiffs' primary objection is Defendant's inability to furnish forms that satisfy the Plaintiffs. Plaintiffs' objections as to form cannot shackle Defendants to continuing federal oversight in light of the extensive services that Defendants already provide to each class member and the comprehensive appeal system already available under IDEA. Given Defendants' accomplishments, their only additional response to further federal oversight might be to entreat, "My soul is also sore vexed: but thou, O Lord, how long?" Psalms 6:3.
As with the previous Rufo analysis, the Court here finds that the principles of equity and federalism inherent in Powell militate in favor of modifying the consent decree to the extent it is founded upon the requirements of the IDEA. First, because of Defendants' long history of meeting those requirements, the Court finds that it is no longer equitable for it to exercise jurisdiction over Plaintiffs' IDEA-based claims. Second, without any federal law basis for the Court's supervision of the consent decree, the Court concludes that it is inappropriate for a federal court to second-guess the effectiveness of the State's program or the professional judgment of Stale officials. Sec, e.g.. Pcnnhursl. 465 U.S. at 104 n.l 3 (stating that a federal court's granting of prospective relief against state officials on the basis of federal law should be
39

constrained by principles of comity and federalism).
D. Eleventh Amendment Immunity and its Eft eel on Continued Federal Jurisdiction. The Court has concluded above that it is no longer equitable for the Court to exercise jurisdiction over the consent decree to the extent the agreement is based upon a constitutional right to habitation or upon federal statutory rights under the IDEA. As a result, neither of the federal law predicates for the parties' agreement remain as a valid basis for the Court's continued supervision of the decree. Thus, the final issue before the Court is whether the Court may continue to exercise jurisdiction over this case on the basis of Plaintiffs' claims under state law. Upon review of the controlling law, the Court finds that it is barred by the Eleventh Amendment and Pennhurst from exercising such jurisdiction. Given that the neither the Constitution nor the IDEA can provide a basis for federal jurisdiction over this case, the three remaining predicates for the consent decree are:
5. Plaintiffs committed to the custody of the Division of Youth Services pursuant to Article 7A of the General Statutes of North Carolina have a right to appropriate treatment under N.C.G.S. § 134A-20. 6. Plaintiffs who are residents of a treatment facility as defined by N.C.G.S. § 122-36(g) [State mental health facilities] have a right to appropriate treatment under N.C.G.S. § 122-56.
8. Plaintiffs have a right to free appropriate public education in the least restrictive environment as provided for by and defined in N.C.G.S. § 1 15-363, el sec/., and implementing regulations, 16 N.C.A.C. 2E.1500, el sec/. . . . Second Set of Stipulations at ^ 5-8. These three predicates arise from claims that state officials
40

were violating state law . The Supreme Court in Pennhurst could'not have been clearer in holding "that a claim that
state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment." 465 U.S. at 121. In support of its holding, the Pennhurst Court noted how strongly considerations of federalism weighed in favor of barring federal court jurisdiction over claims that state officials violated state law, stating:
A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts with the principles of federalism that underlie the Eleventh Amendment. Id. at 106. These same principles require that this Court may not exercise jurisdiction over Plaintiffs' remaining state law claims and, therefore, that the Court terminate its oversight of this class action.
V. Conclusion. Based upon the foregoing, the Court ORDERS that Defendants' Motion to Terminate
Class Action Pursuant to Fed. R. Civ. P. 60(b) is GRANTED and that this case is therefore DISMISSED. With respect to the Willie M. Review Panel, the Court ORDERS that:
(1) the Panel is hereby relieved of its duties with the thanks of the Court; (2) the Panel's staff may continue to work for up to 120 days from entry of this order for the purpose of preparing the Panel's records for retention by the State Archives; (3) counsel for the Panel shall inform the Court when the staffs work preparing
41

the records is complete; and, (4) to the extent the Court has the authority to so order, the State Archives retain
the Panel's records in the manner agreed to by the Panel, the State Archives, and counsel for Defendants.
The Clerk is directed to send copies of this order to counsel for both parties and counsel for the Willie M. Review Panel.
of January, 1998.
UNITED STATES DISTRftff JUDGE^ GRAHAM C. MULLEN
42

 
 UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

CIVIL ACTION NO. CC 79-0294

WILLIE M., a minor; et al.,)

Plaintiffs, )

v.

) THIRD-SET OF STIPULATIONS

JAMES B. HUNT, JR., et al.,)

Defendants. )

IDENTIFICATION OF POTENTIAL CLASS MEMBERS 1. Notice of pendency and status of this action will be given in the following manner:
a. Notice will be mailed by the defendants to the following persons, agencies and facilities by October 15, 1980.
1. Area Mental Health, Mental Retardation and Substance Abuse Authorities;
2. Superintendents of Local Boards of Education;
3. Departments of Social Services; 4. Chief Juvenile Court Counselors; 5. Health Departments; 6. Vocational Rehabilitation Facilities
and Programs;

Willie M. v. Hunt JI-NC-003-004

7. Theraputic Camps; 8. Public and Private Psychiatric
Hospitals; 9. Centers for the Retarded; 10. Wright School; 11. District Court Judges; 12. Schools for the Deaf; 13. Schools for the Blind; 14. Developmental Evaluation Centers; 15. Those private child care institu-
tions and residential treatment facilities agreed upon by the parties; 16. Division of Youth Services Facilities; 17. Those Community-Based residential treatment programs and group homes agreed upon by the parties; and 18. Division TEECH, UNC School of Medicine, b. Persons and entities receiving the notice will be requested to respond themselves and to post it in appropriate places. 2. Said notice shall include the following information and'request: a. A brief description of the status of the lawsuit. b. Specific criteria for identifying individual children as potential members of the class.

c. A request that the following information be provided for each child currently known to the person, agency or program who is considered to be a potential class member:
1. First name and last initial of the child. 2. Date of birth; 3. Description of handicapping condition,
including diagnoses where available; 4. Description of assaultive or violent
behaviors; 5. Identification of which category of class
definition relating to institutionalization or placement is applicable; 6. The child's current placement; and the 7. Name, address and phone number of the person supplying the information. d. Appropriate instructions for forwarding the infor-
mation. e. Instructions not to send the child's full name or other personally identifying information at this stage. f. Instructions to forward the information for children currently known by November 10, 19 80. State facilities shall forward this information to the Department of Human Resources (hereinafter referred to as DHR). Other facilities shall forward it to area mental health authorities (hereinafter referred to as Area Authorities).

g. Request that the same information be forwarded in the same form and manner for children identified in future. 3. The entity receiving the forms (DHR or Area Authority) shall review them to make certain that they are complete and to identify multiple referrals of the same child. All forms on the sane child shall be retained together. If the information on the form is not complete, the person forwarding the form shall be contacted and requested to provide additional information. 4. The entity receiving the form (DHR or Area Authority) shall review each form by November 25, 1980, to determine whether the information contained thereon indicates that the child is a potential member of the plaintiff class. If the information reveals that the child is not a member of the class, the person who submitted the form shall be notified and the reason for the determination shall be stated. The forms on children determined not to be members of the class shall be retained and shall be available for inspection by the Review Panel, the parties and the Court. 5. Forms submitted to Area Authorities which identify children who are potential members of the class shall be forwarded to DHR by December 5, 19 80. 6. DHR shall review all forms to identify children for whom there have been duplicate or multiple identifications and shall attach all forms referring to the same child to each other. 7. All forms received by DHR shall be available for inspection by the Review Panel, the parties and the Court.

8. The identification process shall remain in place and shall work as set forth above with respect to children referred as potential class members in the future.
9. The Review Panel shall have the responsibility and authority to review any and all aspects of the identification process and to make recommendations concerning modifications, additions or changes.The panel shall have access to any and all information it deems relevant in fulfilling this responsibility.
NOTICE TO POTENTIAL CLASS MEMBERS 10. Once the identification process as set forth above has been completed, DHR will provide to plaintiffs the names of potential class members, as coded, and identify the agencies and responsible persons who made the original referrals. Such information shall be provided to plaintiffs by December 12, 19 80. 11. It shall be the responsibility of attorneys for the plaintiffs to contact the identifying agency for each potential class member to discuss the notice process and to provide them with formal notices to be given to the parent or guardian of each potential class member. The notice shall meet all applicable requirements of Federal Rule of Civil Procedure 23 (d) and (e) . DHR shall bear the expense of printing and distributing these notices. 12. After receiving the formal notices, staff members of the identifying agency will deliver these notices to the parents or guardians of each potential class member, will discuss with them the child's rights as a member of the class and will request necessary releases so that existing evaluative information can be released and additional evaluations can be performed as needed.

13. Each agency and person listed in Stipulation 1 above, shall receive copies of the formal notice to potential class members and shall post a copy of this notice in such place and in such manner as is reasonably likely to give notice of the lawsuit and its proposed settlement to individuals served by that agency.
EVALUATION OF POTENTIAL CLASS MEMBERS 14. Defendants agree to submit to the Review Panel a proposal for the process for evaluating and developing the statements of treatment needs for each of the potential class plaintiffs identified. This proposal shall be submitted to the panel by November 25, 1980. 15. The panel shall review the proposal and make recommendations to the defendants with respect to any revisions in the evaluation process needed to assure compliance with their obligations. 16. This proposal shall be developed and reviewed in light of the following requirements:
(a) Each potential member of the class shall have a current comprehensive evaluation, including but not limited to psychiatric and psychological assessments, physical examination/ neurological evaluation, educational evaluation and any additional evaluations or assessments suggested by the child's history or general evaluation. Such evaluation shall be at least as current and comprehensive as those provided for in P.L. 94-142, Article 45 of Chapter 115, N.C.G.S., and implementing regulations thereto.
(b) All diagnostic and evaluative information currently available on each potential class member shall be reviewed tp determine the adequacy and completeness

of the information. Any necessary evaluative work which has not previously been done or for which there is reason to question the current relevance or accuracy of existing evaluations will.be performed at the expense of defendants.
(c) All diagnoses and evaluations will be done by persons with sufficient training and expertise to provide complete and accurate assessment of the individual potential class member's problems and needs.
(d) A statement of needs in the form of treatment and education shall be developed for each potential class member. This statement of need shall address both short term and long term needs of the individual. For a potential class member enrolled with a local board of education, the individualized education plan required by P.L. 14-142, Article 45 of Chapter 115, N.C.G.S., and implementing regulations thereto shall as to education be sufficient unless the panel in a particular case concludes otherwise.
(e) Such statements of need will be developed in accordance with the goals and principles set forth in Paragraphs 4 - 9 of the parties1 Second Set of Stipulations, which govern the defendants' obligations. The statement of needs shall set forth all services actually needed by the individual and shall not be limited to those services currently available.
(f) The statement of needs shall identify resources currently available to meet the identified short term and long term needs of the potential individual class
member. The statement shall also include a description

of services which the child is presently receiving and/or the program in which the child is presently placed. 17. All evaluation data and statements of treatment needs for individual potential class members shall be collected, compiled and made available to the review panel upon its request. All evaluations will be completed within the time set by the evaluation plan developed according to these stipulations. 18. After all evaluations have been completed, all data available on each potential class member will be reviewed by DHR and a determination shall be made as to whether an individual meets all criteria for inclusion in class, including a determination as to whether the child is currently receiving appropriate services as defined by the stipulations. Provided that for a potential class member enrolled with a local board of education the above determinations will be made jointly by DHR and the Superintendent of Public Instruction. 19. Any potential class member who is determined not to meet the criteria for inclusion or who is determined to be receiving appropriate services shall not be included within the class. The agency making the original identification and referral of such potential class members shall be informed as to the final decision to include or exclude each individual and as to the reason for any exclusion. All information relating to potential class members and determinations as to membership in the class shall be available for inspection by the Review Panel, the parties and the Court. 20. The process developed by defendants for identifying potential class members and evaluating their treatment needs shall be a continuing process and shall include procedures for evaluation of potential class members identified in the future.

REVIEW PANEL 21. The Review Panel shall.be constituted as follows:
a. The panel shall consist of five members, at least one of whom shall be a psychiatrist or a psychologist and one of whom shall be an educator.
b. Two members shall be selected by plaintiffs and two members shall be selected by DHR. Plaintiffs and DHR shall attempt to agree on the selection of the fifth member. If such parties cannot agree on the fifth member of the panel within seven days after the other four members have been identified, the Court shall appoint the fifth member from a list of candidates jointly prepared by the parties.
c. The Court may terminate or replace any panel member at any time for good cause. Upon resignation, termination, removal or inability of any member to continue to serve on the panel, a replacement shall be appointed in the manner in which that member was originally selected.
d. Panel members shall be independent so that their judgment will be unaffected by any relationship with the parties. Limited present and past association between the proposed panel member and a party shall not preclude membership of the panel. State University faculty and personnel and local boards of education •faculty and personnel are not precluded from the panel. If either party objects to a member proposed by the other party on grounds of perceived lack of independence,

and if that objection cannot be reconciled by the parties, the question shall be settled by the Court. The member of the panel selected by agreement of the parties-or by the Court shall be presumed independent.
e. Four members shall constitute a quorum of the panel. 22. Fees for each panel member and guidelines for reimbursement for expenses shall be agr'eeS upon prior to the appointment of the member. Each member shall receive fees which reasonably reflect his qualifications and experience. Each member shall also be entitled to receive reimbursement for all reasonable expenses incurred in connection with performance of his duties as a member of the panel. If a panel member and the parties cannot agree on a reasonable fee or reasonable expenses, the fee or expenses shall be set by the Court. 23. The panel shall employ an administrator with appropriate experience and training to assist in performance of its duties. 24. The Department of Human Resources will provide the panel with a conference room for its meetings. Additionally, the Department of Human Resources will provide the panel such clerical staff, and equipment and normal elements of support (e.g., telephone service, utilities, postage, copying, travel and maintenance), as are necessary to carry out the responsibilities of the panel.
25. Upon request, defendants shall furnish the panel such professional consultation and technical or expert assistance as the panel deems necessary to assist it in the performance of its duties. This consultation and assistance shall be furnished promptly by the defendants.' If the necessary consultation and
10

assistance is not available within the resources of the defendants it shall be obtained by the defendants from outside sources. If there is any disagreement between the panel and the defendants as to the persons to provide such consultation and assistance, or the necessity, adequacy or timeliness of such consultation and assistance, that disagreement will, upon request, be resolved by the Court.
26. A budget reflecting estimated costs of the abovedescribed expenses and support of the panel during the remainder of the current fiscal year shall be agreed upon by the plaintiffs and DRH. The panel will prepare proposed budgets for succeeding fiscal years. Panel members shall receive compensation and reimbursement for expenses on a monthly basis. Disbursements for these purposes shall be made in a manner agreed upon by the plaintiffs, DHR and the panel. If agreement cannot be reached on any of the foregoing matters, the Court shall resolve the matters in dispute.
27. The panel shall have the authority to obtain all information it deems necessary to perform its duties. The panel may request that information be provided in such form as . it deems most useful. All written information to be presented to the panel shall identify its author and the date on which it was prepared.
28. The panel shall have access to all services, program areas and facilities under the direct or indirect control of defendants.
29. The panel shall be permitted to interview any person affected by this action or involved in the performance of defendants' obligations pursuant to this action. The panel

11

i

i

shall have the authority to adopt such interview rules and procedures as it deems necessary for performance of its duties.
30. The panel shall direct all requests for services and support to be provided by defendants to the Secretary of Human Resources or her designated representative.
31. The Review Panel shall adopt such internal procedures as it deems appropriate to the performance of its duties by December 1, 198 0.
32. The Review Panel shall be responsible to the Court and is created for the purpose of reviewing defendants' compliance with the decree entered in this action. The panel shall have such duties as are specified herein and such other duties as may be determined by the parties and/or the Court in the future.
33. The panel's duties shall include: a. Review of the individual habilitation plan and
program placement for each of the named plaintiffs. The panel shall determine whether the plan, placement and services actually being provided constitute appropriate treatment to which each child is entitled pursuant to the parties' Second Set of Stipulations. If the panel determines that appropriate habilitation is not being provided or that appropriate plans for habilitation which will be needed in the future have not been made, the panel shall recommend modification of existing plans, programs and placements or the creation of such placements and services as the panel believes are actually needed by the child.
b. Review of identification of potential class members. The panel shall review the procedures for such identification, review their implementation and
12

recommend such modifications or changes in the procedures or their implementation as it deems appropriate.
c. Review of procedures for evaluation of needs of potential class members. The panel shall review the plan prepared for evaluation of potential class members and monitor the implementation of the evaluation process. It may recommend modification in the over-all plan for evaluating the needs of potential class members and the implementation thereof. The panel may review and make recommendations with respect to individual evaluations to the extent that it deems appropriate.
d. Review of determinations as to membership in the class to the extent the panel deems necessary. The panel may review information relating to individuals excluded from the class and determine whether the criteria for class membership are being consistently and accurately applied to decisions regarding class membership. The panel may make recommendations with respect to the process for determining class membership if necessary to assure compliance with the stipulations.
e. Review of programmatic responses to needs of the plaintiff class. Programs operating prior to constitution of the panel shall be reviewed to determine to what extent they offer appropriate treatment and education for members of the plaintiff class. The defendants shall present any proposed programs designed to meet the needs of the members of the plaintiff class to the panel for review a reasonable period of time before the proposed implementation date. At
13

tne same time, defendants will also provide the panel with sufficient information necessary to enable it to review the proposed programs. The panel shall review such proposed programs and may make recommendations on them prior to the proposed implementation date. In addition, the panel may recommend such alternative programs and services as it deems necessary to fulfill defendants' obligations to the members of the plaintiffs' class as set forth in the parties' second set of stipulations.
f. Review of implementation of programs and services for the plaintiff class.
g. The panel shall report in writing to the Court and the parties within three months of its appointment and at least quarterly thereafter. Such reports shall summarize the panel's activities, including issues considered, information received, comments and recommendations made and any problems encountered by the panel in performing its duties. Such reports shall summarize progress made by the defendants toward fulfilling their obligations to the named plaintiffs and members of the plaintiff class. 34. The need for the panel shall be reviewed by the parties and the panel annually beginning in October of 1982. The results of such reviews shall be reported to the Court, which shall resolve any disputes as to the need for continuation of the panel,
PARTIES' RIGHTS AND OBLIGATIONS 35. Each party shall cooperate fully with panel in all matters relating to the performance of its duties.
14

36. Each party shall have the right to present any

matter within the panel's duties for consideration by the panel

and shall have the right to request that the panel make specific

recommendations. Upon the panel's failure or refusal to consider

a matter presented by a party or make a recommendation requested

by a party within a reasonable period the party shall be entitled

to apply to the Court for appropriate relief.

37. Defendants shall submit periodic reports to the

panel setting forth all activities and information related to

efforts to fulfill their obligations. If requested by the

. .

panel, such reports shall include the following:

a. Information summarizing implementation of the

procedures for identification of potential class members

and those identified since the last report;

b. Information summarizing implementation of the

evaluation procedures developed pursuant to these stip-

ulations and of the information gathered through such

procedures since the last report;

c. The number of potential class members determined

to be members of the class and the number determined not

to be members of the class since the last report;

d. The status of the named plaintiffs;

e. Information summarizing the development

and implementation of services and programs

for members of the plaintiff class; and

f. Information summarizing efforts by defendants

to identify, request and secure funding necessary to

implement needed services and -programs for the named

plaintiffs and members of the plaintiff class.

15

 
 CM/ECF - LIVE DATABASE - NCWD - Docket Report

Page 1 of 2

CLOSED, NO DOCKET
U.S. District Court Western District of North Carolina (Charlotte) CIVIL DOCKET FOR CASE #: 3:79-cv-00294

M., et al v. Hunt, et al Assigned to: Graham Mullen Demand: $0 Cause: 28:1343 Violation of Civil Rights
Plaintiff Willie M. a minor
Plaintiff Jeanette M. a minor
Plaintiff Tom H. a minor
Plaintiff Timothy B. a minor
Plaintiff Albert Singer
V. Defendant Governor James B. Hunt, Jr.
Defendant Sarah T. Morrow Sec. of Dept of Human Resources for State of NC
Defendant A. Craig Phillips State Supt. of Public Instruction for St of NC
Defendant David Bruton Chairman, NC St Bd of Education

Date Filed: 10/03/1979 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?610825528764379-L_923_0-1

10/17/2005

CM/ECF - LIVE DATABASE - NCWD - Docket Report

Page 2 of 2

Defendant Hosea C. Brower Director, Samark and Manor, Div of Youth Services Dept of Human Resources, St of NC
Defendant C. B. Hayslett Director
Defendant Field Montgomery Director
Defendant John A. Williams State Budget Officer
Defendant J. A. Porter Controller
Defendant George Bason District Court Judge
Defendant Larry T. Black District Court Judge

Date Filed 01/22/1998

#

Docket Text

Case closed (bsw) (Entered: 02/08/2005)

PACER Service Center
Transaction Receipt

PACER Login: Description: Billable Pages:

10/17/2005 18:41:33

hs0328

Client Code:

Docket Report Search Criteria:

1

Cost:

3:79-cv-00294 0.08

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?610825528764379-L_923_0-1

10/17/2005

 
 North Carolina Department of Health and Human Services

Division of Mental Health, Developmental Disabilities

and Substance Abuse Services

325 North Salisbury Street — Raleigh, North Carolina 27603 — Courier #56-20-24

James B. Hunt, Jr., Governor

Michael S. Pedneau, Director

C.. Robin Britt, Dr., Secretary

(919) 733-7011

Willie M. Section

ADMINISTRATIVE LETTER NO. 96-03

TO:

Area MH/DD/SA Program Directors

Willie M. Coordinators

FROM: Marci White, Chief Willie M. Section

DATE: July 18, 1996

RE:

POLICY REGARDING USE OF THE NEW Willie M. APPLICATION/NOMI-

NATION FORM AND ACCOMPANYING SUPPORTING DOCUMENTATION

PURPOSE
The purpose of this Administrative Letter is to outline the policy for making application/nominations for eligibility/class membership in the Willie M. program and to outline procedures for submitting nominations (“on-line” and “hard copy”). In addition, this letter outlines supporting documentation requirements for Carolina Alternatives sites and other programs.

POLICY
With the introduction of the Willie M. Information System (WMIS), area MH/DD/SAS programs now have the capacity to initiate the application/nomination process “on-line” (detailed procedure description included with this letter). We have also reproduced the form in hard copy for those area programs who are not yet “on-line” as well as for those other agencies or individuals who will not be “on-line” but who wish to make application/nomination.

Beginning immediately, we are requesting that all nominations be submitted “on-line” or in hard copy on this form. Area programs connected to the system should initiate the

process through the WMIS as described in the attached procedures. After September 1, 1996, nominations/applications received on older forms will be considered “incomplete” and processing may be delayed as Section staff work with the submitting person(s) to gather the data necessary to complete the application. A copy (or copies) of the new application/nomination form is (are) enclosed. Please see to it that copies of the form and enclosed procedures for “hard copy” preparation are distributed to all those you know who regularly make or consider malting application on behalf of children, particularly those individuals and/or agencies not directly receiving a copy of this letter (see cc: list at end of letter). Additional copies of the nomination form may be obtained through the Client Eligibility and Information Branch of the Willie M. Section Office in Raleigh. Any computer generated versions of the form completed by area programs or other agencies, must conform to the formatting and page layout of the “hard copy” enclosed, exclusive of the narrative section (which may be expanded to create more space).
As always, anyone can make application for a child to be considered for Willie M. services. Nominations/applications by those other than area programs may be submitted directly to the area MH/DD/SA program in the child's legal county of residence or directly to the Willie M. Section in Raleigh with a copy to the area program. However, given the new automated capability available to the area programs through the WMIS, we continue to encourage coordination of the nomination process through the area programs whenever possible, since their “on-line” capability will greatly enhance and accelerate the process of application and decision notification.
Attached to the new nomination form (both “on-line” and hard copy) is a more detailed set of instructions for its completion, particularly for the supporting documentation that is necessary for determination of eligibility. The new instructions spell out in more detail the kinds of supporting documentation needed to accompany the nomination form. Given the complexity of cases and the number of questions which arise about behavior, needs, services, etc., during application review, submission of supporting documentation with the application will reduce the amount of time for determination by avoiding the time and effort it takes to request and await additional information. While there is no guarantee that questions will not arise, by anticipating those that will likely be asked, the person submitting the application can accelerate the process. The instructions address the type of data that typically needs to be documented. (For additional suggestions, review other documents provided previously by the Section on this topic).
Consistent with the nomination process to date, a signed consent form is required before a final eligibility determination can be made. This consent should accompany the hard copy of the application/nomination (or narrative portion) forwarded to the Section office. At this time, the current consent form entitled “Consent for Release of Information and Authorization for Comprehensive Evaluation” will continue to be used.

An Equal Opportunity Employer

Administrative Letter 98-01

2

We will be working to revise this form for the future, as needed.
As you are aware, we are in the process of attempting to move out from under federal court oversight of the Willie M. lawsuit. Legislation was enacted in June 1995 defining “Eligible Assaultive and Violent Children” (1995 Session Chapter 249, SB775) and allowing for rules to be developed governing eligibility and to "ensure the provision of services" for these children. These rules are currently being and reviewed. If needed, a more deprive set of Procedures will be developed and distributed and the “Criteria for Certification” updated to reflect new terminology, etc. The overall system will remain the same in terms of the criteria and description of the children we serve. The most significant chances are reflected in the new terminology describing the program and its processes such as “application” vs. “nomination,” “eligibility” vs. “certification,” etc.; and in the establishment of a formal appeals process for resolving disputes about eligibility determinations.
With the new WMIS, along with the changes underway with regards to the federal court, we continue to operate in an period of transition. While we are now collecting and maintaining more data on the children we serve and have the capability to access that data more quickly, we also are experiencing the stretching of both our imaginations and workload capacities. The rewards are not always readily apparent but with all that we now have or will soon have available, we should see the benefits in increased productivity for ourselves and our staffs, and in the outcomes for our clients. The enthusiasm and support that has been generated by so many of you during this process is much appreciated by myself and the rest of the Section staff. We thank you in advance for helping disseminate the information about the nomination process as well as supporting those who come to you requesting information and assistance for children whom they believe may meet the criteria for eligibility and are in need of the services available through Willie M.
If you need additional copies of the new nomination form, additional copies of the current consent or have any questions about the process or documentation, please contact the Client Eligibility Branch at the Section office in Raleigh. Because of the increasing emphasis on the process for date g eligibility, the Section has recently reorganized to establish this branch which is responsible for all aspects of the determination process. Ann Baldwin, whom many of you know, continues in her capacity as Certification Specialist. Joan Kramer, previously our Program Development Specialist, has joined the branch as its Branch Head and we have recently welcomed Terri Oakley as our new Branch Secretary. Please feel free to contact any of these people to assist you if you need more forms, information, etc. at: (919) 571-4900.

An Equal Opportunity Employer

Administrative Letter 98-01

3

cc: Michael Pedneau Lowell Harris Bill Hussey & DPI Willie M.. regional staff Director, Exceptional Children Programs Willie M. Interagency Committee Gwenn Chunn DYS Training School and Detention Center Directors State psychiatric hospital child unit directors Administrative Office of the Courts, Juvenile Services Division Chief Juvenile Court Counselors Guardian ad Litem Division District Administrators, Guardian ad Litem Program Kevin Fitzgerald County DSS directors Governor’s Advocacy Council for Persons with Disabilities

An Equal Opportunity Employer

Administrative Letter 98-01

4

BASIC PROCEDURES FOR COMPLETING AN "ON-LINE" APPLICATION
1. Get the release/consent form (“Consent for Release of Information and Authorization for Comprehensive Evaluation”) signed as early as possible in the process so that data can be entered completely. The Consent is essential for making a final determination.
2. When entering information “on line,” please refer to the instructions on the screens and user training manuals for specific instructions about data entry and use of the various function keys. The enclosed instructions are provided as an overview and to assist with common data entry questions.
3. Enter the required data into each of the six sets of screens (Identifying, Agency, Clinical, Behavioral, Legal and Educational) in the Client Information System portion of the WMIS and press the function key to add the client to the database. Completing the entire set of screens can be done over time or all at one sitting. However, the system will not save the client in the database without the child's last initial, first name and date of birth. (The full last name will not be added to the database even if typed in, unless both Y [Yes] is entered in the field for consent and the date of consent is entered.)
• Behavioral Data Note: If Y [Yes] is selected for any question, then a frequency and a date of last occurrence must be entered.
Special Note: The questions “Seriously threatened to hurt someone” either “using” or “NOT using a weapon” should be interpreted to include any type of threatening behavior or gesture, including fighting or other aggressive behaviors, etc. where the other person's safety is perceived as threatened but actual harm hasn't occurred. If actual physical harm has occurred, that is addressed in the first two behavior questions.
4. After completing all data entry in the six sets of screens, return to the first screen (Identifying Information). If you have completed the narrative information which must accompany the nomination/application, have compiled the other needed accompanying documentation and are ready to “forward” the application to the Willie M. Section office, enter the application date and add/save the completed file again to the database.
1

5. In completing the remaining narrative portions of the Application (questions 35-37), you may use either the generated form or the narrative pages of a “hard copy” form (if preferred). Be sure to document in detail each behavior for which you indicated a Yes response. Additional “Behavioral Narrative” continuation pages are available if needed.
6. Generate a printed nomination form for the specific child by pressing the appropriate function key.
7. Go to the Maintain Activity Function and enter activity code 900 which automatically changes the child's status to that of an applicant (Status Code 200). Be sure to date and sign any memo entered for this activity. (Although the activity has a date, currently this does not carry over to the memo field. It is also important to enter your name so it is clew who recorded the memo.)
8. Forward the hard copy, including the required narrative information, with the signed consent and all supporting information/documentation to the Willie M. Section Office address listed on the instructions, attention: Client Eligibility and Information Branch.
2

BASIC PROCEDURES FOR COMPLETING A “HARD COPY APPLICATION”
(for area programs not yet “on-line” as well as for those agencies or individuals who will not be “on-line”)
1. Obtain an “Application for Willie M. Class Membership.”
2. Get the release/consent form (“Consent for Release of Information and Authorization for Comprehensive Evaluation”) signed as early as possible in the process. The Consent is essential for making a final determination.
3. Complete the application form in detail following the directions and instructions attached. It may be legibly printed, handwritten or typewritten. Note: All data on the form is required before an application can be considered and a determination made. Incomplete applications will be held until the area program and/or the person submitting it can be contacted and the necessary information obtained.
4. Behavioral Data Note:
If Y [Yes] is selected for any question, then a frequency and a date of last occurrence must be entered.
Special Note: The questions “Seriously threatened to hurt someone” either “using” or “NOT using a weapon” should be interpreted to include any type of threatening behavior or gesture, including fighting or other aggressive behaviors, etc. where the other person's safety is perceived as threatened but actual harm hasn't occurred. If actual physical harm has occurred, that is addressed in the first two behavior questions.
5. Forward the hard copy, including the narrative information, along with the signed consent and all supporting information/documentation.
• Area Programs: Forward to the Willie M. Section Office address listed on the instructions, attention: Client Eligibility and Information Branch.
• All others: Forward to the Willie M. Coordinator of the Area MH/DD/SAS programs for the county of the child's legal residence. (If uncertain, or if questions or difficulties arise, contact the Willie M. Section Office in Raleigh, 919-571-4900, and ask for the Client Eligibility and Information Branch).

 
 732 F.2d 383 (1984)
WILLIE M., a minor; Jeanette M., a minor; Tom H., a minor; Timothy B., a minor, all by their next friend, Albert Singer, on behalf of themselves and all others similarly situated, Appellees, v. James B. HUNT, Jr., Governor, State of North Carolina; Sarah T. Morrow, Secretary, Department of Human Resources, State of North Carolina; A. Craig Phillips, State
Superintendent of Public Instruction, State of North Carolina; David Bruton, Chairman, North Carolina State Board of Education; Hosea C. Brower, Director, Samarkand Manor,
Division of Youth Services, Department of Human Resources; C.B. Hayslett, Director; Field Montgomery, Director; John A. Williams, State Budget Officer; J.A. Porter,
Controller; George Bason, District Court Judge; Larry T. Black, District Court Judge; Bill J. Martin, Judge, 25th Judicial District, Appellants.
No. 83-1565.
United States Court of Appeals, Fourth Circuit.
Argued February 6, 1984. Decided April 19, 1984.
384 *384 Steve Mansfield Shaber, Asst. Gen. Counsel, Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., William F. O'Connell, Sp. Deputy Atty. Gen., Wilson Hayman, Asst. Atty. Gen., Raleigh, N.C., on brief) for appellants.
J. Jerome Hartzell, Raleigh, N.C. (Akins, Mann, Pike & Mercer, P.A., Raleigh, N.C., Sandra L. Johnson, Johnson & Johnson, Lillington, N.C., on brief), for appellees.
Before WINTER, Chief Judge, WIDENER, Circuit Judge, and PECK,[*] Senior Circuit Judge.
HARRISON L. WINTER, Chief Judge:
A class action brought to litigate the rights to treatment and education of a class of mentally, emotionally and neurologically impaired or violent minors resulted in the entry of a consent judgment. Counsel for plaintiffs sought fees pursuant to 42 U.S.C. § 1988, for their services up to entry of the consent judgment. They were awarded $160,000.00, plus expenses, 90 F.R.D. 601, and we sustained the award on appeal. Willie M. v. Hunt, 681 F.2d 818 (4 Cir.1982).[1]
As was contemplated by the consent judgment, counsel continued to render legal services in monitoring 385 performance by *385 defendants. In addition, two questions arose with respect to the interpretation of the
judgment and further litigation ensued. Plaintiffs were unsuccessful in the district court on one question and unsuccessful before us on the other. Willie M. v. Hunt, 657 F.2d 55 (4 Cir.1981). Nonetheless, the district court granted a motion for the award of counsel fees for services in the litigation regarding interpretation of the consent judgment in addition to the continuing services which were rendered as contemplated. 564 F.Supp. 363. The additional award was in the total sum of $91,742.56 (attorneys' fees of $87,740.00 and expenses of $4,002.56).
It is from the order making the additional award that defendants take this appeal. We reverse in part and affirm in part, remanding for recomputation of the award.
I.
The nature of the original litigation and the circumstances under which the consent judgment was entered as well as its terms and provisions are set forth in detail in Willie M. v. Hunt, 657 F.2d 55 (4 Cir.1981) and need not be

repeated here at length. For present purposes it suffices to say that the original suit was a class action on behalf of emotionally disturbed children who were involuntarily committed to various treatment facilities and training schools in North Carolina. The object of the suit was to obtain, by declaratory and injunctive relief under the Education for All Handicapped Children Act, 20 U.S.C. §§ 1411 et seq., § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and various provisions of the federal constitution and North Carolina statutes, appropriate treatment programs which were allegedly not being provided. During the course of litigation, the parties settled the suit. In essence, the settlement required North Carolina to provide appropriate treatment and a free appropriate education to a defined class of minors. The settlement also established a continuing independent panel of experts in treatment and education to review and make recommendations with respect to identification and evaluation of members of the plaintiff class and development of appropriate treatment and education plans and programs for them. As has been stated earlier, counsel were awarded fees and expenses for their services to this point in the litigation.
As the settlement became operative, plaintiffs' counsel rendered substantial services in monitoring defendants' compliance and the functioning of the review panel. In addition, two questions about the scope of the defined class were raised by the panel. One was whether individuals who otherwise met all criteria for membership in the class were members of the class when they were confined in an institution administered by the North Carolina Department of Correction. The other was whether members of the class who reached age eighteen before defendants could provide them with the benefits of the settlement would, nevertheless, be entitled to those benefits.
Because the parties could not agree on their resolution, both questions were litigated, the first by joint motion of the parties and the second at the instance of plaintiffs. The district court ruled that the first question should be answered in the affirmative as plaintiffs contended, but this ruling was reversed on appeal. Willie M. v. Hunt, 657 F.2d 55, 56 (4 Cir.1981). The district court ruled that the second question should be answered in the negative, and no appeal was taken by plaintiffs. It is for professional services and expenses in litigating these two questions that a part of the second fee award was made. The balance of the award is attributable to counsels' other services in monitoring defendants' compliance and the functioning of the panel. Defendants now appeal from the order making the second award.
II.
We consider first the part of the award attributable to litigation of the two questions raised by the review panel. 386 Although plaintiffs were prevailing parties in the underlying litigation so as to justify the first *386 fee award and
although they may well prevail in subsequent aspects of the litigation, it is manifest that they were not the prevailing parties in the litigation of the two questions for which the second fee award was made. The controlling authority on the proper allowance of fees under 42 U.S.C. § 1988 when a party has prevailed on some but not all issues raised by them in civil rights litigation is Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). That case,[2]inter alia, established at least one test for excluding time expended and expenses incurred with respect to issues on which the plaintiff did not prevail from any fee award. We believe that this test, set forth in the following language, is dispositive:
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants 0907 often an institution and its officers, as in this case 0907 counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in pursuit of the ultimate result achieved." Davis v. County of Los Angeles, 8 EPD § 9444, at 5049 (CD Cal 1974). The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim. (footnote omitted) 461 U.S. at ___, 103 S.Ct. at 1940, 76 L.Ed.2d at 51.

We view the award in this case for litigation of the class definition questions to be for claims distinctly different from the underlying lawsuit and arising after the main civil rights issues were settled by agreement of the parties with judicial imprimatur. Here, "[t]he issue before the district court was the proper construction of a disputed provision in a consent judgment." Willie M. v. Hunt, 657 F.2d at 59. As we pointed out in that appeal, the resolution of the dispute was to be accomplished by resort to the:
... two cardinal principles for interpreting the consent judgment here in issue. First, that its meaning is properly to be sought within the confines of the judicially approved documents expressing the parties' consent. Second, that its meaning is to be sought in what is there expressed and not in the way it might have been written had the plaintiffs established their full rights in litigation or if it had been written to satisfy the purposes of only one of the parties to it. 657 F.2d at 60.
In short, the interpretation of this consent judgment was akin to a question of contract interpretation; it was not inextricably intermingled with the original claims in the lawsuit; professional services for conducting this litigation were not compensable under 42 U.S.C. § 1988.
We reject plaintiffs' argument, relied on by the district court, that an ethical obligation on counsel to submit the questions of interpretation to the court and to urge constructions rejected by the district court and by us, 387 respectively, somehow entitled them to compensation. Any duty to litigate arose, in our view, from a failure *387 on the part of counsel to formulate a consent judgment that clearly and unambiguously defined the plaintiff class that it was designed to benefit. That duty therefore arose from the fact that counsel was not totally effective in formulating language that was self-executing. Contrasted to that duty is another ethical obligation of no less importance, namely that counsel seeking statutory compensation should exclude from a fee request "hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission (emphasis added)." 461 U.S. at ___, 103 S.Ct. at 1940, 76 L.Ed.2d at 51 . Had counsel envisioned the problem of interpretation in drafting the operative documents, the interpretation litigation would have been completely unnecessary.
Because we conclude that plaintiffs did not prevail on the class definition questions and those issues were unrelated to their civil rights claims, we hold that counsel fees should not have been awarded under 42 U.S.C. § 1988.
III.
Defendants also attack the correctness of the district court's award of fees and expenses for other services on two grounds. First, they argue that the district court employed a flat rate that was too high because it erroneously considered that the case had a contingency factor which, in fact, is no longer present.
This argument does not persuade us. Counsel had asked to be compensated at the rate of $70 per hour supporting his request with an affidavit that his customary charge was $75 per hour; the district court allowed fees at the $70 rate. It is true that the district court in discussing the twelve factors identified in Anderson v. Morris, 658 F.2d 246 (4 Cir.1981) and Barber v. Kimbrell's, Inc., 577 F.2d 216 (4 Cir.1978), did say, in rejecting defendants' argument, that plaintiffs are more assured now than originally of recovering some fees, but the fee is still somewhat contingent because the amount to be recovered is not certain and defendants contest the requested award. The district court added, however, that the factor of contingency has less weight than it had originally. While we tend to disagree with the district court's appraisal of this factor, we agree that the contingency factor is of little significance. This is so because the district court first found that $70 per hour for attorney's time "is well within the range of charges customarily made in the area for similar work"[3] and this finding is not shown to be clearly erroneous. Moreover, the district court did not increase the hourly rate to compensate for any contingent nature of the fee. Thus we do not think that the hourly rate allowed by the district court should be disturbed.

Defendants' second ground of attack is that plaintiff's counsel were compensated for duplicative and unnecessary hours. The district court expressly found that the time spent by plaintiff's counsel was necessary and reasonable except for two hours of unaccounted-for telephone conversations. Nevertheless, because of the possibility that some of the time spent was duplicative or unnecessary, the district court reduced the number of compensable hours by 6 2/3 percent.
From our examination of the record and giving effect to the substantial discretion vested in district courts in making fee awards, we see no basis on which to disturb the allowance.
We therefore affirm the allowance of fees and expenses for services other than litigating the two questions. Although counsel seem to be agreed on the time and expenses attributable to each aspect of the total award, we 388 think it better to remand the case to the district court to recompute *388 the award in conformity with the views expressed herein.
REVERSED IN PART; AFFIRMED IN PART AND REMANDED.
[*] Honorable John W. Peck, Senior United States Circuit Judge for the Sixth Circuit, sitting by designation.
[1] In No. 81-1570, counsel also cross-appealed, urging that the allowance to them should have been increased by a fee "bonus" or "multiplier." We declined to decide this issue without prejudice to its later renewal. This issue is not presented in the instant appeal.
[2] Hensley rejected the views of some courts of appeals that plaintiffs should not recover fees for any work on unsuccessful claims, and others, that prevailing plaintiffs should generally receive a fee for time spent on all nonfrivolous claims, and held that a plaintiff only partially successful may still be compensated under certain conditions:
Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. 461 U.S. at ___, 103 S.Ct. at 1943, 76 L.Ed.2d at 54-55.
[3] The Supreme Court has recently ruled that the appropriate measure of "reasonable fees" under 42 U.S.C. § 1988 are calculated "according to the prevailing market rates in the relevant community ..." Blum v. Stenson, ___ U.S. ___, ___, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), affirming in part and reversing in part 671 F.2d 493 (2 Cir.1981).
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 657 F.2d 55 (1981)
WILLIE M., a minor; Jeanette M., a minor; Tom H., a minor; Timothy B., a minor, all by their next friend, Albert Singer, on behalf of themselves and all others similarly situated, Appellees, v. James B. HUNT, Jr., Governor, State of North Carolina; Sarah T. Morrow, Secretary, Department of Human Resources, State of North Carolina; A. Craig Phillips, State
Superintendent of Public Instruction, State of North Carolina; David Bruton, Chairman, North Carolina State Board of Education; Hosea C. Brower, Director, Samarkand Manor, Division of Youth Services, Department of Human Resources, State of North Carolina; C.
B. Hayslett, Director, C. A. Dillon School, Division of Youth Services, Department of Human Resources, State of North Carolina; Field Montgomery, Director, Cherry Hospital, Division of Mental Health, Mental Retardation and Substance Abuse Services, Department
of Human Resources, State of North Carolina; Bill J. Martin, District Court Judge, 25th Judicial District, State of North Carolina, Appellants, and
John A. Williams, State Budget Officer, State of North Carolina; J. A. Porter, Controller, Department of Public Instruction, State of North Carolina; George Bason, District Court Judge, 10th Judicial District, State of North Carolina; Larry T. Black, District Court Judge,
26th Judicial District, State of North Carolina, Defendants. In re James B. HUNT, Jr., Governor, State of North Carolina; Sarah T. Morrow, Secretary,
Department of Human Resources, State of North Carolina; A. Craig Phillips, State Superintendent of Public Instruction, State of North Carolina; David Bruton, Chairman, North Carolina State Board of Education; Hosea C. Brower, Director, Samarkand Manor, Division of Youth Services, Department of Human Resources, State of North Carolina; C.
B. Hayslett, Director, C. A. Dillon School, Division of Youth Services, Department of Human Resources, State of North Carolina; Field Montgomery, Director, Cherry Hospital, Division of Mental Health, Mental Retardation and Substance Abuse Services, Department
of Human Resources, State of North Carolina; Bill J. Martin, District Court of North Carolina; Judicial District, State of North Carolina, Petitioners.
Nos. 81-1410, 81-1411.
United States Court of Appeals, Fourth Circuit.
Argued July 14, 1981. Decided August 11, 1981.
56 *56 Steven Mansfield Shaber, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., William F. O'Connell, Sp. Deputy Atty. Gen., Reginald L. Watkins, Associate Atty., Raleigh, N. C., on brief), for appellants.
Christine O'Connor Heinberg, Raleigh, N. C. (Deborah Greenblatt, Carolina Legal Assistance for Mental Health, J. Jerome Hartzell, Akins, Mann & Pike, P. A., Melinda Lawrence, Smith, Patterson, Follin, Curtis, James & Harkavy, Sandra Johnson, Johnson & Johnson, Raleigh, N. C., on brief), for appellees.
Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.
JAMES DICKSON PHILLIPS, Circuit Judge:

This is a class action brought against officials of the State of North Carolina in behalf of a class of minors whose special characteristics 0907 mental, emotional or neurological handicaps, violent and aggressive behavior 0907 allegedly entitled them under the federal constitution and federal and state statutes to special treatment and education by the State that was not being provided. During the pretrial stage, the State conceded essential liability and the parties set about devising a comprehensive settlement to be reflected in a consent decree 57 awarding broad prospective relief. To this end a series *57 of detailed stipulations concerning the existence, the identity and the rights of the class and the corresponding responsibilities of the defendant officials was entered into by all the parties and approved by the trial judge. The judge then independently ordered the parties to begin compliance with extant stipulations notwithstanding there remained for resolution some final details of the overall settlement.
Unfortunately, there then arose a dispute as to whether the class as certified pursuant to the stipulations included minors who were confined under criminal sentences in various facilities of the North Carolina Department of Correction (not a party to the action nor to the partial consent judgment). The defendant state officials contended that their inclusion was not intended; the plaintiff representatives, that it was. Upon submission of the dispute to the trial judge, he ruled that minors in custody of the Department of Correction were included in the class. The defendants appealed.[1] We reverse.
I
The individual plaintiffs in this class action, emotionally disturbed children involuntarily committed to various treatment facilities and training schools in North Carolina, brought this class action on behalf of all such children for whom no appropriate treatment program was available. Their claims for declaratory and injunctive relief were based on the Education for All Handicapped Children Act, 20 U.S.C. §§ 1411 et seq., § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the fifth, eighth, and fourteenth amendments, and North Carolina special education and right to treatment statutes.
During the week prior to scheduled trial, the parties, as indicated, settled the ultimate liability issue in favor of the putative class. In the course of working out the details of a comprehensive overall settlement, they presented to the court a document entitled "Second Set of Stipulations," which the court adopted as findings of fact and conclusions of law to be made part of a formal judgment to be entered later. In this document the parties agreed to jurisdiction and defined the scope of the class, plaintiffs' rights, defendants' obligations, and the basic outlines of the remedy to be awarded.
Subsequently, the parties filed with the court a Third Set of Stipulations and submitted several additional provisions about which they were unable to agree. After a hearing, the court settled the disputed provisions, and adopted these provisions and those agreed on as findings of fact and conclusions of law to be incorporated along with the Second Set of Stipulations into the consent judgment after proper notification of the class. This Third Set of Stipulations outlined the procedures for identifying, notifying and evaluating potential class members and the mechanics for selection and operation of a review panel to be selected by the parties and approved by the court to monitor defendants' compliance with the consent decree.
The class is defined in paragraph (3) of the Second Set of Stipulations as follows:
[A]ll minors who are citizens of the State of North Carolina and who:
a. now or will in the future suffer from serious emotional, mental or neurological handicaps, which handicaps have been accompanied by behavior which is characterized as violent or assualtive [sic]; and
b. are, or will be in the future, involuntarily institutionalized or otherwise placed in residential programs; and
c. for whom the defendants have not provided appropriate treatment and educational programs.

Subpart (b) above includes:

58

1. Minors who are mentally ill as defined by N.C.G.S. § 122-36(d)(ii) *58 and for whom application

for evaluation in or admission to a treatment facility is sought pursuant to Article 4 of Chapter 122

of the General Statutes of North Carolina, whether such minor is accepted for evaluation or

admitted to such facility or not.

2. Minors referred to an area mental health, mental retardation or substance abuse director or local mental health director pursuant to N.C.G.S. 7A-647(3) for whom residential treatment or placement is recommended.

3. Minors placed in residential programs as a condition of probation pursuant to N.C.G.S. § 7A-649(1).

4. Minors ordered to a professional residential treatment program pursuant to N.C.G.S. § 7A-649 (6).

5. Minors committed to a mental health facility or treatment facility pursuant to Article 5A of Chapter 122 of the General Statutes of North Carolina.

6. Minors committed to the custody of the Division of Youth Services pursuant to N.C.G.S. § 7A-649(10).

Further, the stipulations provided that plaintiffs have a right to appropriate treatment and a free appropriate education, arising under the fourteenth amendment and various state and federal statutes. And they provided that the defendants, as state officials charged with administering the relevant statutes, have the obligation to provide this treatment. Paragraph (9) of the Second Set of Stipulations outlines the scope of rights and corresponding obligations:

(A) Each plaintiff shall be provided habilitation, including medical treatment, education, training and care, suited to his needs, which affords him a reasonable chance to acquire and maintain those life skills that enable him to cope as effectively as his own capabilities permit with the demands of his own person and of this environment and to raise the level of his physical, mental and social efficiency. Such habilitation shall create a reasonable expectation of progress toward the goal of independent community living. Defendants do not guarantee each plaintiff a "cure", but do guarantee each plaintiff a program of habilitation which is a good faith effort to accomplish the goals set forth herein.

(B) Each plaintiff shall be provided with the least restrictive, i. e., most normal, living conditions appropriate for that person. Among the factors to be considered in determining the least restrictive living conditions appropriate for the individual are the need to minimize institutionalization and the need to minimize the possibility of harm to the individual and society.

(C) The goal of habilitation shall be to enable each plaintiff, as appropriate for that individual, to move from:

(1) Living and programming segregated from the community to living and programming integrated with the community;

(2) More structured living to less structured living;

(3) Group residences to individual residences; and

(4) Dependent living to independent living.

(D) Each plaintiff shall be provided such placements and services as are actually needed as determined by an individualized habilitation plan rather than such placements and services as are currently available. If placements and services actually needed are not available, the person shall

be entitled to have them developed and implemented within a reasonable period. Prior to development and implementation of needed placements and services, the person shall be entitled to placement and services which meet as nearly as possible his actual needs.
In what could be called its administrative provisions, the stipulations provided a detailed threshold procedure for identifying individual members of the class as certified. This procedure was put into operation after the district 59 judge ordered compliance with extant stipulations. During its course several *59 local agencies called upon to help in the process identified minors in custody of the Department of Correction and housed in its facilities under criminal sentences. The review panel then raised this question:
Whether individuals who have otherwise met all criteria for class membership as set forth in Paragraph 3 of the Second Set of Stipulations, but who are at present confined in facilities administered by the Department of Correction, are members of the class?
Disputing the answer, the parties jointly moved the trial court for a ruling. When the judge ruled for inclusion of the disputed group in the class, the defendant state officials appealed.

II

The issue before the district court was the proper construction of a disputed provision in a consent judgment. This was an issue of law whose resolution is freely reviewable by this court. It is also an issue of some uniqueness because of the unique quality of the legal phenomenon we refer to as a "consent judgment." Because we disagree with the able district judge's resolution of the issue and think our disagreement may trace largely to certain inherent conceptual difficulties in the interpretive process, we begin by looking briefly to the essential nature of a consent judgment and to the resulting problems of judicially interpreting its provisions.

Whether in a relatively simple two-party lawsuit seeking only monetary relief or, as here, in a class action seeking broad prospective relief, a consent judgment typically involves an agreement to terminate the litigation upon certain conditions and contingent upon the fulfillment of agreed-upon obligations. From this perspective, it has the aspect of a private contract, for it is based upon an agreement of the parties before any testimony has been taken and involves no judicial factfinding or adjudication beyond the necessary determination of jurisdiction. 3 Freeman on Judgments § 1350 (5th ed. 1925); see generally, Timberg, A Primer on Antitrust Consent Judgments and FTC Consent Orders, 39 Brooklyn L.Rev. 567, 568 (1973).

A consent order is more than a contract, though, for it is also a judicial or quasi-judicial act and the judicial imprimatur gives what would otherwise be only a contract the force of a judicial decree.[2] Its contractual aspect, in turn, modifies in one respect its character as a judicial decree: a judgment by consent may not be modified by the court, even while power otherwise exists, without the parties' consent. Id. § 1352. This dual nature of a consent judgment therefore shapes the judicial process of interpretation and construction. That process has been analyzed by the Supreme Court:

Consent decrees are entered into by parties to a case after careful negotiation has produced

agreement on their precise terms. The parties waive their right to litigate the issues involved in the

case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the

agreement reached normally embodies a compromise; in exchange for the saving of cost and

elimination of risk, the parties each give up something they might have won had they proceeded

with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have

purposes, generally opposed to each other, and the resultant decree embodies as much of those

60

opposing purposes *60 as the respective parties have the bargaining power and skill to achieve.

For these reasons, the scope of a consent decree must be discerned within its four corners, and

not by reference to what might satisfy the purposes of one of the parties to it. Because the

defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to

him by the Due Process Clause, the conditions upon which he has given that waiver must be

respected and the instrument must be construed as it is written, and not as it might have been

written had the plaintiff established his factual claims and legal theories in litigation.

United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971) (footnote omitted). See United States v. ITT Continental Baking Co., 420 U.S. 223, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975); United States v. Atlantic Refining Co., 360 U.S. 19, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959); Hughes v. United States, 342 U.S. 353, 72 S.Ct. 306, 96 L.Ed. 394 (1952). The Second Circuit has stressed that adherence to this principle is important to the obtaining of consent decrees, for "defendants who sign them should know these will not be stretched beyond their terms." United States v. ASCAP, 331 F.2d 117, 123-24 (2d Cir. 1964). A court thus has no authority to expand or contract the judgment's terms to reflect what might have been. See Artvale, Inc. v. Rugby Fabrics Corp., 303 F.2d 283, 284 (2d Cir. 1962).
Obedience to the "four corners" rule of Armour does not make improper the use of certain aids to construction where necessary. The circumstances surrounding the formation of the consent order or any technical or specialized meaning understood by the parties for words used in the order may properly inform a court while it yet adheres to the "four corners" rule. United States v. ITT Continental Baking Co., 420 U.S. at 238, 95 S.Ct. at 935.
From all this we take two cardinal principles for interpreting the consent judgment here in issue. First, that its meaning is properly to be sought within the confines of the judicially approved documents expressing the parties' consent. Second, that its meaning is to be sought in what is there expressed and not in the way it might have been written had the plaintiffs established their full rights in litigation or if it had been written to satisfy the purposes of only one of the parties to it.
On this basis, we consider that the meaning is to be sought by looking to the rights and obligations agreed to in the judicially approved stipulations of the parties, to the general nature of the remedy there agreed upon, and to the identity of the named parties, plaintiffs and defendants, who gave their consent to being so bound. For reasons that follow, we conclude, looking to these sources, that the class as certified by consent does not include minors confined for conviction of crime in facilities administered by the North Carolina Department of Correction.
Paragraph 3(b) of the Second Set of Stipulations and the accompanying explanatory subparagraphs contain the critical language in dispute. The language of those provisions defining the class neither expressly includes nor excludes prisoners. The district court looked to that language and concluded that minors in Department of Correction facilities fall "clearly" within the language of paragraph 3(b) because they are "involuntarily institutionalized." While we certainly do not think the point dispositive, we observe that "institutionalization" more commonly denotes commitment for treatment while "incarceration" denotes confinement for punishment. These shades of meaning are certainly not determinative, but "institutionalization" in this context more strongly suggests an orientation toward minors confined for, but not receiving, appropriate treatment than it does minors primarily confined for punishment.
The district court apparently focused primarily on the "involuntary" aspect of the institutionalization. Imprisonment clearly fits within that description, but the more critical focus in the Second Set of Stipulations is on the rights and obligations arising from particular kinds of "institutionalization." The explanatory paragraphs appended to 61 paragraph (3) all refer to circumstances *61 in which minors are under restraint or control of some kind for purposes of treatment. The minors there enumerated are "institutionalized" either because they have come within the jurisdiction of the juvenile court, an agency oriented towards treatment rather than punishment, see N.C.Gen.Stat. §§ 7A-516, -646, or because they are mentally ill, or possibly both. Although we agree with the district court that the six explanatory subparagraphs could not properly be read as an exclusive list of included minors, we think it unduly strains logic to conclude that those otherwise intended to be reached by the general term "involuntarily institutionalized" included minors confined by the state for a purpose entirely different from that justifying the state's confinement of the specifically described categories.
The obligations specifically assumed by defendants provide the strongest basis for our conclusion that the agreement did not contemplate inclusion of prisoners in the class. Paragraph (9) defines the goal of the decreed treatment as enabling each plaintiff to move from a segregated, structured, group living situation to an independent and less-structured situation integrated with the community. The habilitation plan for each plaintiff is to be suited to that individual's needs, providing the least restrictive setting appropriate for that person.

These critical obligations, enforceable by the contempt sanction, are manifestly inappropriate when applied to prisoners. Prisoners under the age of eighteen may or may not have the rights enumerated in the complaint and the Second Set of Stipulations. But, as indicated, we must not be led under the guise of interpreting the consent judgment as written into interpreting it as it might have been written had the controversy been put to litigation. There is simply no possibility that any sensible and significant habilitation plan could be devised which could mandate "the least restrictive environment consistent with" a minor prisoner's "needs and emotional progress" while yet accommodating the state's legitimate penological interests. This, we think, points unmistakably to the conclusion that no such awkwardness was envisioned by the parties in formulating the class definition. And this, in turn, to the interpretation that prisoners were simply not contemplated as members of the class.
Finally we look to the identity of the parties to the consent decree. Again, what is there revealed is not, standing alone, dispositive, but it strongly supports our conclusion. On the plaintiffs' side, it is of some note that no named plaintiff is a member of the disputed group. While this need have had no ultimate significance had the case proceeded to litigation, but cf. Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979), it does bear upon the intended scope of the class as defined by consent.
Of more critical significance is an absence on the defendants' side. Missing from the several agencies and officials carefully and deliberately joined by the plaintiffs as defendants was the most critical one from the standpoint of complying with a consent decree involving prisoners' treatment, the Department of Correction.[3] Again, whatever the substantive or procedural significance of this omission had the litigation proceeded with prisoners included, see Fed.R.Civ.P. 19; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), the deliberate decision by plaintiffs' counsel not to join this 62 agency as defendant further confirms *62 for us that prisoners were simply not contemplated when the class was being defined by consent.
We conclude by observing that the questions whether minors confined in the state's prison system could or should be included in a class seeking the relief here originally sought, and whether if included they might be entitled to some part of the relief embodied in the consent decree here in issue, are not before us. We address only the question whether that decree as entered contemplated their inclusion. We conclude that it did not and on that basis reverse the order of the district court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
[1] On June 9, 1981, by separate order, we held the district court's order appealable, citing Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981); Frederick L. v. Thomas, 557 F.2d 373, 380-81 (3d Cir. 1977); Morales v. Turman, 535 F.2d 864, 867 n.6 (5th Cir. 1976).
[2] Freeman comments on this aspect of consent orders:
[T]he judgment is obviously something more than a contract, being rather the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. The rendition and entry of the judgment requires the judicial action of the court, and it is therefore valid though it requires the parties to do what they could not contract to do; neither can it be vacated because the agreement pursuant to which it was entered is not performed. Such a judgment has substantially the same effect as any other judgment rendered in ordinary course, and is entitled to the same presumptions.
Freeman on Judgments, supra, § 1350 (footnotes omitted).
[3] On appeal the plaintiffs argue that the omission of this agency has not this significance 0907 that the statutory obligations of certain named agencies run to providing treatment to prisoners, and that in defining the class they were "more concerned with the children to be accorded relief" than with the exact identity of every agency that might be required to participate in providing it. Accepting both of these contentions at face value, they do not address the practical significance we attach to the omission. It remains inconceivable to us that had prisoners been contemplated, the plaintiffs would have failed to take the easy step of adding to the list of defendants, already including the governor of the state, this obviously critical agency. We are not dealing with its legal

indispensability as a party or with the tactical wisdom of the decision not to join it, but simply with its significance to the probable meaning of the class definition.
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 564 F.Supp. 363 (1983)
WILLIE M., a minor; Jeanette M., a minor; Tom H., a minor; Timothy B., a minor, all By their next friend, Albert SINGER, on behalf of themselves and all others similarly situated, Plaintiffs, v. James B. HUNT, Jr., Governor, State of North Carolina; Sarah T. Morrow, Secretary, Department of Human Resources, State of North Carolina; A. Craig Phillips, State Superintendent of Public Instruction, State of North Carolina; David Bruton, Chairman,
North Carolina State Board of Education; Hosea C. Brower, Director, Samarkand Manor, Division of Youth Services, Department of Human Resources, State of North Carolina; C.B. Hayslett, Director, C.A. Dillon School, Division of Youth Services, Department of Human Resources, State of North Carolina; Field Montgomery, Director, Cherry Hospital, Division of Mental Health, Mental Retardation and Substance Abuse Services, Department of Human Resources, State of North Carolina; John A. Williams, State Budget Officer, State of North Carolina; J.A. Porter, Controller, Department of Public Instruction, State of North Carolina; George Bason, District Court Judge, 10th Judicial District, State of North
Carolina; Larry T. Black, District Court Judge, 26th Judicial District, State of North Carolina, Defendants.
No. C-C-79-294-M.
United States District Court, W.D. North Carolina, Charlotte Division.
June 2, 1983.
364 *364 Robert D. McDonnell, Charlotte, N.C., for Willie M.
John A. Decker, Carolina Legal Assistance for Mental Health, Raleigh, N.C., for Jeanette M.
Loren M. Warboys, Elizabeth J. Jameson and Mark I. Soler, Juvenile Justice Legal Advocacy Project, San Francisco, Cal., for Tom H.
J. Jerome Hartzell, Akins, Mann & Pike, Raleigh, N.C., for Timothy B.
Carolina Legal Assistance for the Mentally Handicapped, Raleigh, N.C., for Singer.
Everette Noland, Steven Mansfield Shaber, William F. O'Connell, N.C. Dept. of Justice, Raleigh, N.C., for Hunt.
E. Osborne Ayscue, Jr., Helms, Mulliss & Johnston, Charlotte, N.C., for Bason and Black.
William Trott, Young, Moore, Henderson & Alvis, Marci L. White, Raleigh, N.C., Dr. James D. Clements, Atlanta, Ga., Robert E. Bridges, J. David Jones, Donald E. Taylor, Carolyn I. Thornton, pro se., for Review Bd.
SECOND INTERIM FEE AWARD
McMILLAN, District Judge.
Plaintiffs' counsel filed a motion for award of attorneys' fees, defendants responded to the motion, and plaintiffs' counsel filed a reply. Parties notified the court that no hearing was needed because the parties' positions were fully set forth in the briefs. The court, in its discretion and after review of the file, determines that fees for plaintiffs' 365 counsel should be awarded *365 and that the amounts set out below for such fees are reasonable.

In setting attorneys' fees, the court is required to consider twelve guidelines originally set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and adopted by the Fourth Circuit Court of Appeals in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir.1978). The Fourth Circuit, in a later case, Anderson v. Morris, 658 F.2d 246 (4th Cir.1981), reviewed the manner in which the Johnson guidelines are to be applied by district courts. A base amount for the fee award is to be determined by multiplying the number of hours reasonably expended on the case by the customary hourly rate of compensation (guidelines one and five). This amount is then adjusted up or down by the court on the basis of the other Johnson factors. In accord with plaintiffs' counsel's request, a decision on the amount of this adjustment will be postponed until the determination of the final fee award.
Following that practice, I make findings as follows:
1. The time and labor expended. 0907 Plaintiffs document 1,339.10 hours spent on this case by eight different lawyers, and 8.0 hours of paralegal time, for the 20-month period from November, 1980, until June, 1982. That time has been spent implementing the stipulations agreed to by the parties, monitoring defendants' compliance with those stipulations, and litigating contested issues about the meaning of those stipulations.
Defendants object to an award of fees for total hours spent because (1) plaintiffs did not prevail in the litigation of class membership issues, and (2) some hours spent were wasteful, duplicative, or devoted to matters unrelated to the litigation.
A. Class membership litigation.
Defendants object to plaintiffs' counsel recovering for 307 hours of time spent litigating two issues which arose after the consent judgment was entered 0907 whether the class included (1) children confined in Department of Correction facilities (288.55 hours), and (2) persons who had reached their eighteenth birthday after September 2, 1980, but before being afforded appropriate services by the defendants (18.45 hours). Plaintiffs lost the age issue before the district court. Plaintiffs won the Department of Correction (DOC) issue before the district court, but lost on appeal. The Appeals Court entered an order that each side would bear its own costs.
In Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court held that:
... the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised.
___ U.S. at ___, 103 S.Ct. at 1943 (emphasis added).
Plaintiffs are the prevailing parties in this litigation. The suit resulted in a consent judgment providing millions of dollars worth of appropriate services to Willie M. class members. Proceedings brought by the plaintiffs to enforce defendants' compliance with the stipulations do not involve separate and distinct claims, but involve claims integrally related to the effective and appropriate provision of services mandated by the consent judgment.
Plaintiffs' counsel represent the class, as set out in the original complaint. The Review Panel, an independent group set up to oversee implementation of the stipulations, raised questions about whether the class included children confined in DOC facilities or persons who had aged out of the class before being provided services. A 366 literal reading of the description of the class contained in the complaint could reasonably *366 result in the inclusion of both groups of persons in the class. Plaintiffs' counsel were under an ethical obligation not to agree to an understanding of the stipulations which would prevent possible class members from receiving services. See Ethical Consideration 7-12 of the A.B.A. Code of Professional Responsibility; Cf., Fed.R. Civ.P. 23(a)(4).

Plaintiffs won substantial relief in this lawsuit; claims about the scope of the class are integrally bound to the implementation of that relief. Plaintiffs' counsel had an ethical obligation to litigate the issues in question; the time was reasonably expended and should be compensated. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 636 (6th Cir.1979); Disabled in Action v. Mayor and City Council of Baltimore, 685 F.2d 881, 886 (4th Cir.1982); Rivera v. City of Riverside, 679 F.2d 795, 797 (9th Cir.1982); Seigal v. Merrick, 619 F.2d 160, 164-65 (2d Cir.1980).
The defendants argue that an award of costs on appeal is a prerequisite to the award of fees for appellate work, citing Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982). This court declines to follow Buian. The circuits are split on the issue of whether a motion for attorneys' fees under § 1988 should be treated as a motion for costs or as a motion on an independent and collateral issue. The Fourth Circuit has not directly addressed the issue.
This court finds persuasive the reasoning of the eighth and ninth circuits that attorneys' fees are an independent and collateral issue. Metcalf v. Borba, 681 F.2d 1183 (9th Cir.1982); Obin v. District No. 9, International Association of Machinists and Aerospace Workers, 651 F.2d 574 (8th Cir.1981). Under Fed.R.App.P. 39 and Fed.R.Civ.P. 54(d), costs are easily ascertained, may be assessed by the clerk, and rarely give rise to any dispute or appeal. On the other hand, fees are assessed by the district court after thorough consideration of the criteria laid out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Further, a determination of fees usually involves consideration of briefs and affidavits from the attorneys. Frequently, hearings are held. The award of fees is often bitterly contested on appeal.
The potential amount of the fees award, the varied factors which must be considered by the court in reaching the fees decision, and the crucial role of the judge and parties in reaching that final determination render the fees/costs comparison strained at best.
White v. New Hampshire Department of Employment Security, 629 F.2d 697, 703 (1st Cir.1980), rev'd on other grounds, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), quoted with approval in Metcalf v. Borba, 681 F.2d at 1182; see also, Obin v. District No. 9, 651 F.2d at 580.
This court agrees with the conclusion of the eighth and ninth circuits that, although § 1988 describes attorneys' fees as costs, that label does not carry over to other provisions of the United States Code and the Federal Rules of Civil Procedure. Metcalf v. Borba, 681 F.2d at 1187; Obin v. District No. 9, 651 F.2d at 580; Cf. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (Fed.R.Civ.P. 59 (e) does not apply to postjudgment requests for attorneys' fees pursuant to § 1988). The Court of Appeals' order that each side bear its own costs reflects none of the in-depth analysis required for a determination of fees 0907 there is no consideration of the circumstances of the appeal, the relation of the appeal to the rest of the litigation, the ethical responsibilities of the parties, or the application of the Johnson factors. Accordingly, this court finds that the failure to award costs on appeal does not affect the plaintiffs' entitlement to an award of fees.
Plaintiffs won the DOC issue at the trial level. Plaintiffs' counsel had a professional responsibility to defend the case when defendants appealed. A different case might be presented if the successful plaintiffs had appealed in hope of bettering their position. See, Buian v. Baughard, 687 F.2d at 861. The time spent preparing and arguing this appeal was ethically required and reasonably expended. The fact that plaintiffs lost the DOC issue on appeal 367 does not change their position as the prevailing parties in the Willie M. litigation. The plaintiffs are *367 entitled to recover fees for time reasonably expended on issues which the plaintiffs' attorneys had a responsibility to litigate.
Accordingly, this court finds that the plaintiffs are entitled to recover fees for the 307 hours of time spent litigating the class membership issues.
B. Waste, duplication, and unrelated activities.
The court finds that the time spent planning and monitoring defendants' compliance with the stipulations was reasonably expended. That work, which included meetings among counsel, attendance at review panel meetings, and meetings with judges and other public officials, was necessitated, in large part, by defendants' failure to meet projected rates of provision of services. A responsible lawyer has a duty to see the settlement is effectively

implemented, particularly when the class is incapable of evaluating services or of ensuring compliance themselves. Aside from two hours of unaccounted for phone conversations, the time spent by plaintiffs' counsel was necessary and reasonable. In arriving at its final figures for fees, however, the court has reduced the fees slightly to account for the possibility that some of the time spent was duplicative or unnecessary.
Accordingly, the court finds that plaintiffs should recover for 1,250 hours of attorney time and 8.0 hours of paralegal time.
5. Customary fee for like work. 0907 Plaintiffs' attorneys request a fee of $70.00 per hour for attorney time and $30.00 per hour for paralegal time. This rate is the same used in the first fee award and is well within the range of charges customarily made in the area for similar work. The fact that much of the time was spent planning and monitoring defendants' compliance does not decrease the value of those services in this case; effective implementation is essential if the class is to benefit from the consent judgment.
The court thus determines that plaintiffs are entitled to attorneys' fees for 1,250 hours × $70.00 and 8 hours × $30.00, or $87,740.00. In accord with Anderson v. Morris, supra, this total is to be adjusted by the remaining Johnson guidelines. While the analysis will be contained here, the actual adjustment will be determined at the final fee award, as requested by the plaintiffs.
2. The novelty and difficulty of the questions raised. 0907 The questions involved in the implementation of the judgment are novel. Plaintiffs' attorneys are exploring a hitherto uncharted area in assisting the defendants to define what are appropriate services for the members of the class.
3. The skill required. 0907 The suit has continually required a high degree of skill, and the papers, presentations and arguments before the court by plaintiffs' lawyers show beyond question that they possess the necessary skills.
4. The fixed or contingent nature of the fee. 0907 Defendants argue that the case is no longer contingent because the plaintiffs prevailed on the merits. Certainly, plaintiffs' counsel are more assured of recovering some of their fees than they were before the settlement, but the amount of fees to be recovered is still not certain. Furthermore, defendants should not be heard to argue that the case is no longer contingent when they object to plaintiffs' recovery for the hours spent litigating the class issues. While this factor has less weight than before, it still leans in favor of the plaintiffs.
7. Time limitations imposed by the client or the circumstances. 0907 This factor has no effect on the award.
8. The amount involved and the results obtained. 0907 The results remain significant to a large group of people. The plaintiffs' efforts to plan and monitor defendants' compliance have resulted in earlier, more effective provision of services than would otherwise have come to pass.
9. The experience, reputation, and ability of the attorneys. 0907 Plaintiffs' lawyers, while young, have evidenced the necessary skill and ability to handle the case effectively and successfully. They will not be penalized because of their youth.
10. The undesirability of the case. 0907 This factor has no effect on the award.
368 *368 11. The nature and length of the professional relationship with the clients. 0907 This factor has no effect on the award.
12. Awards in similar cases. 0907 Considering the nature of the benefit to the class members, the number of lawyers involved, and the length of time over which the services have been provided, the award is in line with other awards which have been made in recent years in similar cases.
The court finds as reasonable the following fees and awards costs as follows:
Attorneys' fees: ________________________ $87,740.00 Expenses ________________________________ 4,002.56

__________ Total: __________________________________ $91,742.56 IT IS THEREFORE ORDERED that defendants pay to counsel for plaintiffs the sum of $91,742.56 as a partial award of costs as set out above.
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 Willie M. v. Hunt, 90 F.R.D. 601 (1981)

90 F.R.D. 601 United States District Court, W. D. North Carolina,
Charlotte Division.
WILLIE M., a minor; Jeanette M., a minor; Tom H., a minor; Timothy B., a minor, all by their next friend, Albert Singer, on behalf of themselves and
all others similarly situated, Plaintiffs, v.
James B. HUNT, Jr., Governor, State of North Carolina; Sarah T. Morrow, Secretary, Department of Human Resources, State of North Carolina; A.
Craig Phillips, State Superintendent of Public Instruction, State of North Carolina; David
Bruton, Chairman, North Carolina State Board of Education; Hosea C. Brower, Director, Samarkand Manor, Division of Youth Services, Department of Human Resources, State of North Carolina; C. B. Hayslett, Director, C. A. Dillon School, Division of Youth Services, Department of Human Resources,
State of North Carolina; Field Montgomery, Director, Cherry Hospital, Division of Mental Health, Mental Retardation and Substance Abuse Services, Department of Human Resources, State of North Carolina; John A. Williams, State Budget Officer, State of North Carolina; J. A. Porter, Controller, Department of Public Instruction, State of North Carolina; George Bason, District Court Judge, 10th Judicial District, State of North Carolina; Larry T. Black, District Court Judge, 26th Judicial District, State of North Carolina,
Defendants.
No. C-C-79-294. | June 15, 1981.
Attorneys and Law Firms
*601 Robert D. McDonnell, Charlotte, N. C., Christine O’Connor Heinberg, Deborah Greenblatt, Carolina Legal Assistance for the Mentally Handicapped, Raleigh, N. C., Loren M. Warboys, Elizabeth J. Jameson and Mark I. Soler, Juvenile Justice Legal Advocacy Project, San Francisco, Cal., for plaintiffs.
Everette Noland, Steven Mansfield Shaber and William F. O’Connell, North Carolina Dept. of Justice, Raleigh, N. C., and E. Osborne Ayscue, Jr., Helms, Mulliss & Johnston, Charlotte, N. C., for defendants.
Opinion
ORDER

McMILLAN, District Judge.
Plaintiffs’ counsel filed a motion for an award of attorneys’ fees, defendants responded to the motion, and oral argument was heard from all parties on May 4, 1981. The court, in its discretion and after review of the file, determines that fees for plaintiffs’ counsel should be awarded and that the amounts set out below for such fees are reasonable and should be taxed as costs.
Pursuant to the standards set forth in *602 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir. 1978), the court makes appropriate findings as follows:
1. Time and labor required. Plaintiffs document 2,567.90 hours spent on this case by ten different lawyers. The lawyers for the state estimate that they spent 1,850 hours on the case through November 3, 1980. The time estimated by the state lawyers does not include time spent by other state employees who work in the areas of education and treatment of children.
The amount of time spent by plaintiffs’ lawyers was not inordinately greater than the estimated amount of time spent by lawyers for the state and other state personnel. Plaintiffs’ lawyers had no built-in resources or experts and had to become and employ their own experts in a short period of time. Obviously, having multiple counsel did necessitate spending a fair amount of time simply communicating among counsel. The court finds that the conferences reported were, for the most part, necessary in putting together a lawsuit of this magnitude. The court has however in arriving at its final figure for fees, reduced the fees somewhat in order to account for the possibility that some of the time spent in conference was duplicative or unnecessary.
Defendants have argued that the ratio of plaintiffs’ lawyers’ trial preparation time to time allotted for trial is too high. This ratio is an absolutely irrelevant consideration. Most cases are eventually settled without going to trial, but the tough ones are settled only after the combatants begin to see the “whites of the eyes” of the opposition.
Plaintiffs claim that because the defendants would not capitulate early, they had to spend hundreds of hours in unavoidable discovery and review of documents in order to determine the adequacy of treatment and the scope of the class. Plaintiffs’ reported hours are also reasonable because, as the parties with the laboring oar, they had to decide on strategy and face numerous issues which the defendants in response did not need to consider.
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Willie M. v. Hunt, 90 F.R.D. 601 (1981)
The court rejects the defendants’ notion that there were “too many lawyers with too little direction” and is in substantial agreement with plaintiffs’ lawyers’ statement that “we spent the time we spent because we needed to spend it.”
The case was beautifully prepared and presented from start to finish and the court believes the ultimate good results were largely a result of the plaintiffs’ lawyers’ careful and thorough work.
2. The novelty and difficulty of the questions. The questions were clearly novel and from the outset appeared to be difficult to win. Plaintiffs’ lawyers indicated that numerous experts advised them against bringing the suit because of the complexity of the issues and the remoteness of achieving any real results. They also indicate that because of the complexity, none of them would have undertaken the suit alone. The plaintiffs’ task was even more difficult because they had no available proof or experts on their team at the beginning and had to locate and become acquainted with their expert assistants. Additionally, even though a stipulated settlement was finally reached, all issues were vigorously contested by the defendants until the “eve of trial” when the parties arrived at the stipulations.
3. The skill requisite to perform the legal services properly. The suit required a high degree of skill, for reasons already discussed, and the papers, presentation and arguments before the court by plaintiffs’ lawyers showed beyond question that they possessed the necessary skills.
4. The preclusion of other employment by the attorneys due to acceptance of this case. Although the court knows of no business which will now be foreclosed to the plaintiffs’ lawyers as a result of accepting employment in this case, the time spent on this case was obviously not available for other employment.
5. The customary fee. The fees awarded below are, in view of all the circumstances, entirely in line with customary fees for similar work in this community.
*603 6. The fixed or contingent nature of the fee. The only way plaintiffs’ counsel could get paid in this case was to win. If plaintiffs had not won, the lawyers would not have been entitled to fees.
7. Time limitations. This factor has no particular weight.
8. The amount involved and the results obtained. The results, regardless of the outcome of the appeal of the inclusion in the class of children within the custody of the Department of Correction, are extremely significant to a large class of people. The Department of Human

Resources has submitted a budget request of $22,000,000.00 for a two-year period which is in substantial part earmarked to provide facilities and services called for by the suit. Hundreds of children will benefit each year from the programs.
9. The experience, reputation and ability of the attorneys. The work done by the plaintiffs’ lawyers, most of whom are young, is the product of able, aggressive advocates and should not be discounted in value simply because the lawyers are young. We are told that Alexander the Great was only thirty when he wept for lack of new worlds to conquer. Johnson v. Georgia Highway Express, Inc., id., specifically directs the court not to penalize a young lawyer for only recently being admitted to the bar if he or she demonstrates the necessary skill and ability.
10. The undesirability of the case. Bringing this case originally was financially unattractive to the plaintiffs’ lawyers. Other than the financial considerations, this factor has no particular weight. Most of the plaintiffs’ lawyers do a substantial amount of work in the area of juvenile rights or other civil rights areas and presumably, this case did not cause them to lose other business.
11. The nature and length of the professional relationship with the client. Although some of the named plaintiffs had been represented by several of plaintiffs’ lawyers in juvenile matters prior to the filing of this suit, this factor does not seem to have any particular weight.
12. Awards in similar cases. This award is in line with other awards which have been made in recent years in similar cases.
Bearing in mind all the above factors, the court finds as reasonable and awards as costs the following items, and directs the defendants to pay them to plaintiffs’ counsel:
Attorneys’ fees: $160,000.00.
2. Costs and expenses (partial award): $8,208.21.
This award is for items listed in the plaintiffs’ motion and affidavits, excluding the expenses listed by Sandra Johnson because a dollar amount was not indicated for each item she claimed. An award for reimbursement of her expenses will be made but the court directs her to submit an affidavit setting out the exact amounts she claims as expenses.
IT IS THEREFORE ORDERED THAT the defendants pay to counsel for the plaintiffs the sum of $168,208.21 as a partial award of costs as set out above.
	  
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Willie M. v. Hunt, 90 F.R.D. 601 (1981) 3

 
 Willie M. v. Hunt, 681 F.2d 818 (Table) (1982)

681 F.2d 818 (Table) (The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. The Fourth Circuit provides by rule that an opinion will not be published unless it meets specific criteria, and further provides that citation of unpublished dispositions is “disfavored.” Fourth Circuit Rules, I.O.P. 36.4, 36.6, 28 U.S.C.A.)
UNITED STATES COURT OF APPEALS Fourth Circuit
Willie M. v.

Hunt 81-1570, 81-1653 | 6/15/82 W.D.N.C., 90 F.R.D. 601
Opinion AFFIRMED
	  

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